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HomeMy WebLinkAboutagenda.council.regular.20080825CITY COUNCIL AGENDA August 25, 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) Mayor's Comments b) Councilmembers' Comments c) Agenda Additions/Deletions d} City Manager's Comments e) Board Reports VI. Consent Calendar (These matters maybe adopted together by a single motion) a) Resolution #76, 2008 -Calling Special Election b) Resolution #77, 2008 -Contract -Bucket Truck c} Resolution #75, 2008 -Contract -Artemis Website Design d) Resolution #78, 2008 - GOCO Grant e) Resolution #79, 2008 -Transit Development Plan f) Minutes -August 11, 12, 2008 VII. First Reading of Ordinances a) Ordinance #23, 2008 -Bonds -Castle Creek Hydropower Plant P.H. 9/8 b) Ordinance #25, 2008 - 28 Smuggler Grove Historic Designation P.H. 9125 c) Ordinance #24, 2008 - 520 East Cooper Subdivision P.H. 9/8 VIII. Public Hearings a) Ordinance #21, 2008 - 332 Main Street Subdivision b) Resolution #74, 2008 - 404/414 Park Avenue Conceptual PUD c) Resolution #80, 2008 -Lift One COWOP Eligibility IX. Action Items a) Resolution #81, 2008 -Ballot Questions -Submitted Separately b) Resolution #82, 2008 -Charter Amendment Ballot Questions c) Ordinance #26, 2008 -Charter Amendment Council Compensation d) Resolution #83, 2008 -Charter Amendment Ballot Question e) Ordinance #27, 2008 -Charter Amendment Council Salary Change During Office X. Adjournment Next Regular Meeting September 8, 2008 COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. ~~ 1~'~ A atl~ ~` yy is ~K k % ~ '{ ;~ N ~cr~-'~1t~" M r ~ T ~, y~ ~ ' s ~ 1 # ~. ~" ~ ~ ~ „ ~ ~ ~ ,, ~,~ .. -~ ,~ ~ ,. J ...~•~~( rr'y ~ R~ _ ' ~a.7': , r 1 Z R ~ r f ~ s l4~ .~ ~ .)- i ' ~ ~ ~ ' a ~-. $ ~ S i a •~. • ~~ F ~ 4 .,, -~Y ~ ~ ~,: ~, 3 ~ i ^~~ .~w - r1 '_ ~r r ~. ~, . .., ~~ i' 1 ~~~ ;.1- ,,,,tiy .llll r t 1 ^ ~` , ; _ • 1 ~ rw • ~ • » V. ~~ ~ e. ~ ~ ' :,-•~ ~t .~.. ~~ ~~ ~~ r •.~ ,~ #:~ ~ ~ ~~ l # ~ '' `-.r ~ ~.: ~ ~.;~, ~~ Q r ~ b~f ~2~~~ EXHIBITS Richard Volk ASPEN CITY COUNCIL MEETING 8/25//2008 Photo traveling East on North Spring Street off Gibson Ave. Note: Stake and orange flag depicting location of sewer man hole and two green flags showing location of sewer red line placed on photo shows location of sewer line. Also note green telephone installation on left of road for reference in third photo. 2. Photo from driver's position illustrating restricted visibility. Note: green flag over sewer line. 3. Photo going North on North Spring Street illustrating restricted visibility. Note green telephone installation for reference. 4. Topographic map based on aerial photos taken some time in the late 50's as the railroad is still shown and the railroad trestle over the roaring fork near Herron park is gone. Note: the corner of interest is highlighted in yellow. Topographic Map based on an aerial survey in October 1974. Note: Corner of interest shown in yellow. 6. Current map of area illustrating the location of sewer line relative to structures and road today. The installation of the sewer line in this area was begun in 1967 and completed in 1969.(From verbal discussion with Tom Bracewell, Collection Systems Superintendent of Aspen Consolidated Sanitation District, on August 21, 2008.) s \~ / I -w ~ v o ~ ,, _ - ~~ ;~~ ~ - _ _ ~ ~-~ ~ , ~ r' m - ,~ ~~ ~ ~~ o ,~, ~ , ~ \_ ~,' O~ G '~ rn ~ '~ ~ ~ ~ , "; o _ ~ ~, ~~_.-_ r __ ~,~' ~ ~ -o - _ ; ,. ~ D ~, ~ o m ~ ~ I ~' - -- - ~ _ W ~~ ~ Z O fl - i; -- __ } --- 0 r" °- O c~ ~ / -, ~ ~ z ~ ~ O D ~ ~ ~ \/ v z C7 I ~ - ti \_ o ~~ ,~ I --~_~ ~ z Z ~ ~ l ~ ~ ~ m ~ C7 D l,~ ~ c~ / ./ \ r _ ~ ~_ n J ~ ..~ - ,~ _,-z ~~~.. ~ ~ ; ~ ,, ~~ ~__ ! ~' ~'~ L ~ _ ~~~ ,~ -' S , ~ ~ ~ ~' 1 ~ -- ; l~ 1 f ~"' ,;; ~~ % ~~ ~ ~, ,. ! --.. -= ... -tom ; ~ ~ ~ --'~ ' - : --_ i - ~ ~ J, -'~ ~~ Q _ ,_- ~ _ 1~ _ _, ~ __ ~~ t~ i i ~ ~y0 ~ ~ ~' 1~ ~ ~-~- ~ ~ ~ l - ~ --- -- I i ~ ~ ~~~,'~ - /, \ _ _ \~~ _- ~- 0 o rn nv ~ v = m 00 --~ ~ `~ ~ ~ C ~ ~ o C7 ~' -~ D o Cn D~D ro ? i n o ~ r D Q• \ Zm ~ ~ ,o ~ m N ~o ~ -~ o rn z ~i - w~ ~ D ~ o / ° n c Z r ~~ 0 z 0 _z ~~ - rn D r // N m J ~ / 1.L ;' ~~ O% ~~, ~% ~: ~/ i /°~ ~ I ~~~,~ ~~ / /, %" -~ II y _~~f/ ~~~. / // tix / / °° ,/ rn •° ,' 1 ~ l l~ I ~ /' ! // I ~ . ~ ~, ,~ ~- _~ /~ 5 i August 25, 2008 To The City Council RE: Blind Corner North Spring Street As users of North Spring Street, our biggest concern is that a child or adult on a bicycle could be killed because of this blind corner. There was been a head on auto accident on December 26th 2007, but there were no serious injuries. See photos 1, 2, &3 The following remedies could be considered: 1. Have the corner berm and shrubbery removed for at least 20 feet from the corner of each approach to restore visibility. 2. Use the City's eminent domain power to acquire sufficient land to correct the problem. 3. Use adverse position to exercise the public's rights. Spring Street off Gibson Ave has been used at least since 1945. Personal testimony of Richard Volk North Spring Street is shown on the Bugas & Merrick Engineers topographic map based on the Falcon Air photos which were aquired some time in the 1950's as the railroad is shown. (Map 4). North Spring is in the same location on Map 5 flown in 1974. The Sewer line along Spring Street shown on map 6 has been in place since 1969, verbal discussion with Tom Bracewell of the Aspen Consolidated Sanitation District on August 21, 2008. Richard Volk Vii. -1~[. ,s. } - 'r ~'Y_'yrA~.4:, ,, `__ j. :'r '. yc ~ "'r "~. ~ fit, ~ . ~ ~'`''~~ putt'; y. ~'.~Y y^'~i;;'~ ~ ~' .. ~..~ ~.`~ ~. ! ~. ~'" y y ~4 •' ~J+ ~,~ ~ ~ s~ f, ,, ~.d' ,~~~~ _ 1'~ / ~ ~, .. w 7.~f / ~.~.~.~ a k• t ',~ ~ ~~~~'~"-. °~ ~ ~1 ~, - `f{{ r ~ .if ~ ~. ` r•~t~ Slll+~iRfY1 ~` .M ~. ~ ~~ +~ ~' # a ~~ ~ ~. ~ tp; • i~ y 1 r ~ , rY ti Y. ~~ -'' ~_~r~iii~YlY 4 ,' . '~ t'_ j~ t y,i ~. ~:. fir,; ..., , ^ MEMORANDUM TO: Mayor and City Council FROM: Kathryn Koch, City Clerk DATE: August 13, 2008 RE: Resolution #~ 2008 -Calling Special Election v~ a. REQUEST OF COUNCIL: Staff recommends adoption of Resolution #, 2008 calling a special election for November 4, 2008. DISCUSSION: The Charter of the City states: Section 2.2. Municinal elections. A general municipal election shall be held on the first Tuesday afrer the first Monday in May of 1971, and biennially thereafter. Any special municipal election may be called by resolution or ordinance of the council at least sixty (60) days in advance of such election. The resolution or ordinance calling a special municipal election shall set forth the purpose or purposes of such election. Council has indicated interest in placing several question on the ballot of the November election. The deadline for ballot questions to be submitted to the Pitkin County Clerk is 4 p.m. September 5`". Council's last regular meeting before that deadline is August 25`h. ALTERNATIVES: Council could choose to not propose these questions to the electorate at this time, to wait until May 2009. PROPOSED MOTION: "I move to approve Resolution #~ ,Series of 2008, calling a special election for November 4, 2008." OR by adopting the consent calendar, Council is agreeing to call a special election for November 2008. CITY MANAGER COMMENTS: RESOLUTION #~(o (Series of 2008) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, CALLING FOR AND ESTABLISHING A DATE FOR A SPECIAL MUNICIPAL ELECTION TO BE CONDUCTED ON NOVEMBER 4, 2008 WHEREAS, section 2.2 of the Home Rule Charter of the City of Aspen provides that any special municipal election may be called by resolution or ordinance of the City Council at least sixty (60) days in advance of such election, and WHEREAS, the City Council desires to place before the Aspen electorate certain ballot questions, and WHEREAS, the City Council may add such additional questions to the ballot as it may hereafter deem appropriate. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 A special municipal election shall be and is hereby called and established for Tuesday, November 4, 2008, for the purpose of submitting to the electorate questions on renewal of the .45 percent housing/day care tax; issuance of a bond and any other questions to be determined by the City Council at a future date. Section 2. Pursuant to Ordinance No. 31, Series of 1996, the November 4, 2008, Special Election shall be a coordinated election and shall be conducted in accordance with the Uniform Election Code of 1992, as amended. The City Clerk shall take all steps necessary to negotiate with the Pitkin County Clerk and Recorder for the preparation of an intergovernmental agreement in accordance with Section 1-7-116, C.R.S., concerning the conduct of the November 4, 2008, Special Election according to law, INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25`h day of August, 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 August 25, 2008. Kathryn S. Koch, City Clerk V(b MEMORANDUM TO: Mayor and City Council FROM: Jerry Nye, Superintendent of Streets THRU: Randy Ready, Asst. City Manager THRU: Phil Overeynder, Public Works Director DATE: August 14, 2008 RE: Contract Approval 2008-3 FM for the purchase of One (1) 50 foot aerial lift truck (Bucket Truck) for the Parks Department REQUEST OF COUNCIL: Staff recommends approval of contract 2008-3FM for the purchase of One (1) 50 foot aerial lift truck with insulated bucket and chipper box for the Pazks Department. PREVIOUS COUNCIL ACTION: The Asset Management Plan contains the funds for this purchase. City Council approved the 2008 Asset Management Plan as part of the 2008 Budget. BACKGROUND: This purchase is the result of a competive bid process in which ALTEC Industries was the lowest responsive bidder with the ALTEC Model LRV56 articulating over center aerial lift truck. DISCUSSION: The Parks Department budgeted for the purchase of a bucket truck in the 2008 AMP. This truck will be equipped with a 14 cubic yazd chipper box. It will allow for a person to be safely harnessed inside the bucket while the bucket will be insulated to prevent any chance that the person be electrocuted in the case that any contact is made with high voltage lines. This truck will be utilized for tree trimming/removal, canopy inspections, hazardous tree monitoring, insect and disease identification and control, and other needs as necessary within the Pazks Department, including but not limited to the safe installation and removal of Christmas lights and decorative flags on the City's light posts. Currently, the Parks Department forestry efforts aze limited to what can be reached by a ladder, unless contracted to a professional tree caze company. This is very limiting, especially when it is necessary to inspect an entire tree for decay, defects, and other potential hazards to persons and property. This truck will provide the opportunity for the City of Aspen to safely be more proactive in the management of our valuable community forest. Page 1 of 2 FINANCIALBUDGET IMPACTS: This truck was approved in the 2008 AMP and funds aze available. ENVIRONMENTAL IMPACTS: This truck will allow for improved management of Colorado's premier high altitude resort community forest. Management decisions, planning, and operations will be drastically improved with the addition of this piece of equipment, in turn, providing a healthy forest into the future. The environmental benefits of a healthy forest include, but are not limited to, erosion control, storm water detention, carbon sequestration, oxygen production, aesthetic benefits, and mechanical heating and cooling of structures reduced. RECOMMENDED ACTION: Staff recommends contract approval of 2008-3FM for the purchase of the Altec Model LRV56 aerial lift (bucket truck) for the Parks Department. ALTERNATIVES: PROPOSED MOTION: "I move to approve Resolution # ~ ~' of 2008 on the consent calendaz of Monday, August 25, 2008. CITY MANAGER COMMENTS: ATTACHMENTS: Page 2 of 2 RESOLUTION NO. ~' Series of 2008 A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND Altec Industries Inc. ,AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT(S) ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a CONTRACT between the City of Aspen, Colorado and Altec Industries Inc a copy of which contract is annexed hereto and made a part thereof. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section One That the City Council of the City of Aspen hereby approves that CONTRACT between the City of Aspen, Colorado, and Altec Industries Inc 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: _, 2008 Mick 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 , 2008 Kathryn S. Koch, City Clerk .~ SUPPLY PROCUREMENT AGREEMENT CITY OF ASPEN BID N0.2008 -3FM THIS AGREEMENT made and entered into, this 15th day in Julv of 2008, by and between the City of Aspen, Colorado, hereinafter referred to as the "City" and ALTEC Industries. Inc. ,hereinafter referred to as the "Vendor." WITNESSETH, that whereas the City wishes to purchase, One (1150 foot Aerial insulated bucket truck with chipper box model LRV 56 Hereinafter called the UNIT(S), in accordance with the terms and conditions outlined in the Contract Documents and any associated Specifications, and Vendor wishes to sell said UNIT to the City as specified in its Bid. NOW, THEREFORE, the City and the Vendor, for the considerations hereinafter set forth, agree as follows: 1. Purchase. Vendor agrees to sell and City agrees to purchase the UNIT(S) as described in the Contract Documents and more specifically in Vendor's Bid for the sum of _ Ninetv One Thousand Six Hundred Thirtv Seven and no cents dollars ($ 91.637.00 ). 2. Delivery. (FOB 1080 POWER PLANT RD. ASPEN, CO.) 3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Documents are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. A full description of all warranties associated with this purchase shall accompany this contract document. 5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6. Third Parties. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City may assign this Agreement in accordance with the specific written permission, any rights to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers. No waiver of default by either party of any of the terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 7-PURCH.DOC S, 8. Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. Attorney's Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 10. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 11. Certification Reaarding Debarment Suspension. Ineligibility and Voluntary Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that vendor or any lower tier participant was unable to certify to this statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees. Gratuities. Kickbacks and Conflicts of Interest. Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. Vendor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefor. Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. 7-PURCH.DOC In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conFlict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a vendor, contractor or sub-contractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4. Recover such value from the offending parties. 13. Termination for Default or for Convenience of City. The sale contemplated by this Agreement may be cancelled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of of those funds for payment pursuant to the terms of this Agreement. 15. City Council Approval. If this Agreement requires the City to pay an amount of money in excess of $10,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City's municipal code, section 13-98, pertaining to non- discrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination ACt of 1957, as amended, and other applicable state and federal laws respecting discrimination and unfair employment practices. 17. Integration and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18. Authorized Representative, The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Vendor for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. 7-PURCH.DOC >, IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement to be duly executed the day and year first herein written in three (3) copies, all of which, to all intents and purposes, shall be considered as the original. FOR THE CITY OF ASPEN: By: City Manager ATTEST: City Clerk ~{ L ~' VENDOR: /i` l7 c~ ~h~ti~r,~fs ~l~ G By: /~// Title. /1 rFa Ssfcs /l~ahty2 y 7-PURCH.DOC Limited Six Year Warrarrty for Utility Service Bodies Attec Irxfustries, Inc. provides the fdlowing warranties to the original purchaser of an Attec utility service body. • Attec warrants that its service bodies will rat mst through (develop a hde through the metal as a result of rust) for a period d six years from date of original purchase, under conditions d rannal use and with regular maintenance. This warranty is vdd H the service body has been used to transport corrosive materials. • Altec warrants that its service bodies are free d defects in material and workmanship, under proper use, installation, application and maintenance, for six years from date of original purchase. This includes the door hinges, door latdres, and lock cylinders. • Attec warrents that the shelving in an Attec service body will rat bend under a rated load d 250 pounds. • Attec wanarNS all tap coat finishes applied by Altec or an auttarized Altec representative for one year from the date d purchase. This wartaMy does rat eppy to arty service body purchased in prime paint. Any lettering or decals required fdlowing repair or replacement will nd be covered under Mis warranty. • Attec warrants the strudurel componerRS of the service body for 10 years fdlowing the original purohese. This does nd appty if the body has been modified or altered in any way by anyone other than en approved Attec representative. This warranty does not extend to any custom equipment or finishes, decals, damages to vehicles or labor in connection with any d the above. Altec's obligation under these limited warranties is limited to repair, replacement, or credit, nd to exceed Attec's suggested list price, at the option of Attec. Ths warranty does nd cover trensportation charges, replacement rental charges, misuse, abuse, acddents, alteration or use in arty way not recommended by Attec. Attec reserves the sole right to inspect any Rem claimed for warranty and decide the apprapri- ateway to handle any and all claims, irxiuding the replacement or repair d the warranted part. No repair or replacement work commeraed without prior written approval of an authorized Attec representative will be covered by these limtted warranties. Any and all accessory items that are added to the body but rat manufactured by Alter, such as inverters, compressors, liftgates, generetors, comer mount cranes, etc. will be covered, 'rf at all, by the accessory products manufacturers warranty in effect at the time d delivery and will not be covered by arty warranty extended by Attec. This limited warranty does nd cover. (a) products which have nd been operated and main- tained in accorderae with Alter operators and maintenance manuals, programs, and bulle- tins; (b) Products which have nd been mounted in aocordarae with Alter irstallation proce- dures; (c) products nd menufadured by Altar wtuch are supplied by Alter on spedal oMer, (d) products which are repaued without using orgmal Attec parts; or (e) transportation or delivery to an ARec service fadlity or the wstomers location. This limited warranty is expressty in lieu of any other warranties, express or implied, including, but nd limited to, arty warranty d merchantabilRy or fihness for a particular purpose. 6rcept as spedfied above, no assodate, agent or representative d Attec is authorized to extend any warranty on Attar's behatt. Remedies under this limned warranty are expreesly limned to the provision and installation of parts and labor, as speclfied above, and arty claims for other loss or damages d any type (including, but not limned to, kus from failure of the product to operate for arty period d time, oUrer economic or moral loss, or direct, immediate, special, indirect, incidental or consequential damage) are e~ressiy excluded. rrL s Limited Warranty Products designed and manufacWreC Cy Altec Industries, Inc. are warranted to be free From defects !n material and workmanship at the time of initial delivery subject to the following provisions: For one (t) year following initial delivery of the product. A.;ec vnl!, at its option. repair ar replace any part fount Cy Aitec to be defective in material or workmanship at the time of inihal delivery. During the first ninety (9{)j days following initial delivery, no charge `or oarts, labor or travel [o the customer's location shall be made for such repair or replacement at tae customer's location. During the remainder of such one (t) year, no charge for parts or labor shall be made fOr such repair or replacement at an Altec service facility. For so long as the initial purchaser owns the product, Altec will, at its option. repair or rep{ace any of the following ma;br components found by Altec to be Structurally impaired due to defects in material or workmanship which existed at the time of Inltiel delivery booms, boom articulation links, hydraulic cylinder structures, outrigger weldments, pedestals. subbases, turntables. body structures, and reel lifting arms. No charge for parts or tabor Shall be made for such repair or replacement when performed at an Aitec service facility. The limited warranty in this paragraph (2) does rot Cover wear components. This limited warranty does not cover- (ay products which have r.ot been operated and maintained in accordance •.vith Altec operators and maintenance mancals, programs one Cclie;ins; (b) products which have not been mounted in accordance with Altec installation procedures; fc) products not manufactured Cy Altec which are supplied by Altec on special order: (d) products which are repaired without using original Ahec parts: or (e) transporta0on or delivery to an Altec service facility or 1?e customer's location This limited warranty is expressly in lieu of any other warranties. express or implied, including, but nor Jimrred to, any warranty of merchantabi0ty or J;rness 'or a particular purpose. Except as spec;fied above, nc assoc~are, agent or represer,;atrve of Aitec rs authorized to extend any warranty on Aitecs behalf. Remedies under this /invited warranty are expressly limrtetl to the provision and rnstaUation o' parts and labor, as specified above. and any claims (or other ,'oss or damages of ary !yne (including, but not limifetl to. toss Ircm torture of the oroducr ro operate for any period of lime, other economic or moral loss. or direct. rmmsdra!e, special. ;ndirecr. Incldenta! or consequential damage' are expressly extruded. n Free ind•~siries. Inc. Revised 3-96 t';-, VIG MEMORANDUM TO: Mayor and City Council FROM: Ruth Kinney, Network Application Specialist THRU: Jim Considine, Information Technologies Director DATE OF MEMO: 25 July 2008 MEETING DATE: 11 August 2008 RE: Contract for Website Redesign REQUEST OF COUNCIL: Request City Council approval for a contract with Artemis Solutions Group for the city /county website redesign in the amount of $133,875. This expenditure is shared with Pitkin County. BACKGROUND: 1n 2002, the City of Aspen and Pitkin County embarked on the creation of a joint website, www.aspenpitkin.com. Funds became available in 2007 to replace our existing website. The desire by both the public and staff is to increase the use and usefulness of the website and to continuously add more ability to conduct business via the web. Over the past yeaz, staff and public input have gone into the requirements that aze represented in the proposed contract. The contract presented here for your approval is the result of a competitive bid process that was conducted earlier this year. DISCUSSION: The City of Aspen /Pitkin County joint website has increasingly become both an information resource and a means of doing business for citizens and businesses in our community. Technology and citizen and staff expectations for that technology as it pertains to the web have changed. The objectives of the work represented by this contract aze to provide an improved means of doing business with the city and county, enhance the opportunities for communication with our citizens, and allow internal staff the means to update and post what is important to the community, via the city/county website. The work in this contract represents Phase 1 of an ongoing project. Please see Attachment A for a detailed listing of items included in this contract. Per direction from City Council and Board of County Commissioners, an outsowced approach will be proposed through the 2009 budget request process for Phase 2 and following projects. This budget proposal takes the approach that more money should be allocated each year, rather than having funds available every 5 years. Phase 2 and following will include items such as e- commerce, enhanced applications via the web, a customer relations management system which Page 1 of 2 would allow for citizen requests and follow up, and the deployment of Web 2.0 or social networking applications as those needs arise. FINANCIAL/BUDGET IMPACTS: The contract amount is $133,875. Funding fox this project is included in the AMP for 2008. ENVIRONMENTAL IMPACTS: While this contract does not have direct environmental implications, this expense will improve the City's environmental goals by designing a more useful website, so people don't have to travel to city hall to get information, to get forms, and don't have to print hard copies, but can complete forms online and conduct city business without having to get in a car. RECOMMENDED ACTION: Approve the contract with Artemis-Solutions by adopting Resolution #75, 2008, on the consent calendar. PROPOSED MOTION: By adopting the Consent Calendar, you are approving Resolution #75 Series 2008, for the contract with Artemis-Solutions for website redesign, development and implementation. CITY MANAGER COMMENTS: ATTACHMENTS: A -Artemis Solutions Group Contract B -Resolution #75, 2008 Page 2 of 2 RESOLUTION #75 (Series of 2008) A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN, COLORADO, AND ARTEMIS SOLUTIONS GROUP SETTING FORTH THE TERMS AND CONDITIONS REGARDING THE CITY OF ASPEN AND PITKIN COUNTY WEBSITE REDESIGN AND IMPLEMENTATION 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 Artemis Solutions Group, 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 Artemis Solutions Group regarding website redesign and implementation for the city /county website, 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 August 25, 2008. Kathryn S. Koch, City Clerk AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City') and Artemis Solutions Group, ("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 consistent with the Artemis Memorandum of Understanding set forth in Exhibit "A" and the Artemis Scope of Work set forth as Exhibit "B", both attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than May t, 2009. 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 Citys project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit "A" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $133,875 according to terms set forth at Exhibit "A". Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assignability. Both parties recognize that this 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, shalt not relieve the Professional of any of the responsibilities or obligations under this agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination. The Professional or the City may terminate this Agreement, without specifying the reason therefore, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City far damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 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. PS1-971.doc Page 1 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 pertorm as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its actr and for the acts of Professiona['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, vrith 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 whatrcever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of Snsurance 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 amountr, duration, or types. (b) Professional shall procure and maintain, and shalt cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -policy limit, and FIVE HUNDRED THOUSAND PS1-971.doc Page 2 DOLLARS ($500,000.00) disease -each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000,00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,- 000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirementr 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 limitr of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or 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 shalt be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cast 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 retying 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 rightr, 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. PS1-971.doc Page 3 10. Citds Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested, to: City: Professional: City Manager Ct City of Aspen /kr~rw~i5 x1.J~iens Gr~.,~ 130 South Galena Street Street Address 250 el' ~_(d, ,,;~ sa3 Aspen, Colorado 81611 City, State & Zip Code E.54- C~~:~ MI 4s~tz~ 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 Citys municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, wccessors, and assigns. Notwithstanding anything to the contrary contained herein, this agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolu- tion 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-f01. a. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. PS1-971.doc Page 4 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 are merely incidental to the required performance. c. By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not employ illegal aliens. d. Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility far employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five {5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier, The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre- employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: PS1-971.doc Page 5 (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 [he 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 far Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law,(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 17. General Terms. (a) It is agreed that neither this agreement nor any of itr terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 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] PS 1-971.doc Page 6 ATTESTED BY: ,WI NESSED _ ,~.,.. iE~ N~(t3~51, CITY OF ASPEN, COLORADO: By: Title: Date: PROFESSIONAL: 7loc-/EYul-~ IECffr(c3000,~i lKC ~1-~rSu ~(M r}k ~~ Y~ ~ "' ~ By: Title: V (r; ~ ' ~2~1~ N~'~ Date: Og ~ ~ Ug PS1-971.doc Pagel EXHIBIT "A" to Professional Services Agreement Artemis Memorandum of Understandin¢ I Terms and Conditions Fixed Fee Rate Schedule • A 30% down-payment is required to begin the project. The payment schedule for the remaining 65% balance requires: 0 20% at the completion of the architecture phase 0 10% at the completion of creative sign-off 0 15% at the completion of add-on modules 0 25% upon project completion • Artemis Solutions Group will give 60 days written notice of changes to fee schedule. • Invoices are considered overdue if they are not paid in full within thirty (30) days from the date of the invoice. Overdue invoices will incur a 1.7% per month (20.4% annually} time price differential. • CLIENT'S account becomes past due, CLIENT agrees to pay to CONTRACTOR all legal costs, fees, actual attorney fees and other expenses CONTRACTOR incurs pursuing CLIENT for the amount owed to it. Time and Materials Rate Schedule • The Time & Materials billing model operates such that the client pays for exactly the amount of hours worked on the task. Each task has controls around the volume of work completed and charged for, with a reoccurring client check-in point, after a certain number of hours. • CONTRACTOR charges $125 per hour for technology consulting and software development services. • CONTRACTOR charges $125 per hour for maintenance and tech support services related to custom application solutions. • Invoices charged against retainer will be sent semimonthly. Invoices are considered overdue if they are not paid in full within thirty (30) days from the date of the invoice. Overdue invoices will incur a 1.7% per month (20.4% annually) time price differential. • In the event that CLIENT'S account becomes past due, CLIENT agrees to pay to CONTRACTOR alt legal costs, fees, actual attomey fees and other expenses CONTRACTOR incurs pursuing CLIENT for the amount owed to it. • CONTRACTOR will give 60 days written notice of changes to fee schedule. Page i Work Orders Work Orders and Those Authorized to Approve • Artemis Solutions Group representatives will work on a time and materials basis for services requested outride of the scope of this AGREEMENT. • For non time and materials projects, CLIENT can elect to have CONTRACTOR pertorm services on a limited xope project basis. For the purpose of CONTRACTOR accountability and CLIENT control, project based services may be subdivided into smaller portions with specific deliverables. For each WORK ORDER, both parties will agree to a defined scope of work, detailed deliverables, time frame for completion, and estimated cost. WORK ORDERS may be for any size but generally will not exceed $25,000. Services provided under WORK ORDERS are billed on a time and materials basis and actual charges may be more or less than originally estimated. • Authorization for work may be given through email. • Only the individuals identified below shalt be authorized to approve WORK ORDERS: Liability and Disclaimer of Damages • CONTRACTOR shall maintain an Errors and Omissions Insurance Policy with policy limits of $1,000,000 which CONTRACTOR agrees to maintain during the term of this AGREEMENT. • CONTRACTOR shall maintain Hazard Insurance which CONTRACTOR agrees to maintain during the term of the AGREEMENT. CONTRACTOR will provide a copy of the Insurance Policy to CLIENT at thime of execution of this AGREEMENT and at each Renewal Term of Insurance. • CONTRACTOR is not liable or responsible for any lost revenue or productivity experienced as a result of inaccuracies, downtime, errors or any other problems known or unknown. • CONTRACTOR is in no way liable for any of the following damages direct, indirect, punitive, incidental, special, and consequential or any other damages. CONTRACTOR is in no way liable, under any circumstances and without limitation, for any damages arising out of the use of the software or the inability to use the software, including but not limited to: costs and expenses arising out of computer failure, network failure, work stoppage, lost profits and lost data arising out of or in any way connected to the operation, implementation and performance of the software, network, server or workstations. • CONTRACTOR dixlaims liability or responsibility for any damages even if CLIENT has not been advised of the possibility of such damages. • CONTRACTOR makes no representations about the suitability and reliability of any software provided. The software is provided "as is" without a warranty of any kind, either expressed or implied, including but not limited to the implied warranties of: merchantability, non- infringement of third party rights, title, fitness for a particular purpose and workmanlike effort. Page ii Severability • If any portion of this AGREEMENT is determined to be invalid or unenforceable under Michigan or Federal law, including but not limited to, the warranty dixlaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that matches, as close as possible, the intent of the original provision or teens of the unenforceable provision and the remainder of AGREEMENT shall continue in effect. Termination i • This AGREEMENT shall become effective on the date it is executed by both parties and will continue in force until the project is complete or until it is cancelled. • Either party may terminate [he AGREEMENT upon fifteen (15) days advance written notice to the other party. • If CLIENT is delinquent in paying amounts due CONTRACTOR, CONTRACTOR may withhold services until receipt by CONTRACTOR of all overdue amountr and interest. . .- ~. .- • • CONTRACTOR or CLIENT may contract with third-parties in providing services to the CLIENT- owned System, And such third-parties shall be required to execute aNon-discloser Agreement to protect both the CONTRACTOR and the CLIENT. • - - Warranty Phase Artemis' warranty phase is a period after the project phase has closed, in which our development team corrects any missed, lost or misunderstood xope requirements that were originally documented and agreed upon during the project phase. The Warranty Phase will be 4 weeks for this engagement. Post-Warranty Support Once a project has been completed it is handed off to Artemis' Post Implementation team. Our Post Implementation team enwres that any problems are taken care of in a timely and efficient manner if they arise. The purpose of this phase is to maintain the system as it is, after the warranty phase is closed. Changes beyond those necessary to maintain the system as delivered will be billed at Artemis' standard hourly rate, upon agreement. Service Level Agreement • From the term of this AGREEMENT until termination CONTRACTOR will provide the following support services for the CLIENT-owned system at the specified rate proposed previously in the proposal. 1. Any fixes or modifications to software and source code 2. Any updated user and program documentation 3. Correction of any failure of the CLIENT-owned system. 4. Telephone support • CONTRACTOR shall make the above services available to CLIENT on a timely basis. CONTRACTOR shall provide a one hour response time to emergenty calls (system outage) 24/7. Page iii CONTRACTOR shall a qualified system maintenance person between the hours of 8:00 AM and 5:00 PM, Eastern Time, Monday through Friday (exclusive of holidays), for telephone consultation with CLIENT within one (1) hour for Priority 1 calls, two (2) hours for Priority 2 calls and twenty-four (24) hours for Priority 3 calls after receiving a request for consultation from a "Designated Customer Contact' (as herein defined). In addition, if CONTRACTOR deems it necessary, CONTRACTOR will commence on-site maintenance within two (2) hours for a Priority 1 call, 3 hours for a Priority 2 call and within 2 Business Days for a Priority 3 call. CLIENT will provide access to CLIENT-owned system to CONTRACTOR, for not only product support, but also for maintenance of CLIENT-owned system. o Priority 1 Call -any situation that causes CLIENT to be unable to use the CLIENT-owned system or any component thereof, o Priority 2 Call -any situation in which CLIENT is able to use the CLIENT-owned system but CLIENT'S production or use of the system is materially affected. o Priority 3 Call - is any situation which is not a Priority 1 or Priority 2 call. • CLIENT shall provide to CONTRACTOR written notice listing not more than two (2) Designated Customer Contacts authorized by CLIENT to communicate with, and to authorize service to be performed by CONTRACTOR. CLIENT may modify listing and give written notice to CONTRACTOR. Page iv EXHIBIT "B" to Professional Services Agreement Artemis - Scoae of Work The following items will be included in the fixed fee project budget. Scope will be further defined in a functional requirements document during the Architecture phase. Discovery Meetings $2,000.00 Series of meetings to gather information for planning and architecture Project Planning & Management ~ $6,000.00 Development team & Client communications; Consulting; Project lifecycle progress & health Information Architecture $4,250.00 Sitemap development; Wireframes; Functional specifications Content Planning $3,250.00 Content checklist; Department survey; Content recommendations & consulting Graphic User Interface Design $12,500.00 Creative Brief; Design phase 1; Design phase II; Client Communications; Graphic file preparation for development g+. .. Content Management System Skinning $6,250.00 Homepage & subpage template Contentlntegration; Phase I $6,250.00 15 pages of content integration; Most complex pages will be handled first; Style guide included, if requested CMS Training 8 Documentation $2,250.00 Twa training sessions Filterable Calendar of Events Module $5,000.00 This calendar maybe displayed as a list of events, but will be a61e to 6e displayed graphically as with the look of a standard calendar. The user /citizen will be able to click on a particular meeting and have that download to their local calendar. Meetings which are added must have the ability to have attached agendas and minutes. Shoutd a citizen have subscribed to receive notifications of meetings, once the meeting is added to the calendar, an email will be generated to that list of subscribers with the meeting RSS News Feed Module $4,375.00 Syndicated News module implementation allowing for easy readability. This includes a News and Press Releases section of the website, with the ability to add, edit, delete press releases and "feed" these items to any relevant/associated page an the site. In Page i addition, if someone subscribes to News for a particular area of interest, this would automaticall y be sent as an email when a press release is added to the site. Advanced Site Search $1,500.00 Advanced search module with full text search far PDF documents and files. Document Repository Module $5,000.00 Document library [o be accessed 6y public or logged in users; Allows for multiple user role viewing and editing control; Advanced document search included. Includes ability for customers/citizens file exchanges GIS Map Module $8,750.00 Vibrant map display of targeted area; Highly acclaimed user interface Unique User Roles & Content Approval $2,500.00 Control of viewing and editing rights for unique user roles; Enhanced administration ADA Compliant Included Artemis will ensure that the website will be fully ADA compliant Browser Compatibility and basic Mobile Compatibility Included The website will be compatible with I. E, Firefox and Safari. Home, calendar and emergency page mobile compatible -read-only. Web Traffic Analytics Included in hosting package Artemis will instal( Google Analytics and allow COA/PC staff complete access to analytic statistics. Regular reports will provided at the City's request Website Access Included Artemis will provide access to all website fifes via FrP and Aspen SQL Server database. An open FTP site will also be available. Utilizing our CMS and template pages, the COA/PC can utilize its employees to integrate content into the website. Artemis will provide support to ensure that content is properly integrated. Support for content integration $5,000.00 Artemis provides support while COA/PC integrates content. Ir~Pt.~- ~. . ~.~ ~a,~ ' ~' - . Quality Assurance £t Testing $7 000.00 Quality assurance of website usability, module functionality, skinning, and content integration work Website Deployment $2,000.00 Configure server environment, domains and deploy live website; Includes web traffic anal ytics Page ii ,. . ~. <.~ ~ r ._ ~ w. - _ - x :.: i Video Gallery $3,500.00 Part of [he Artemis Social Networking package. Includes a rich set of features jor managing online videos gallery portfolio, video sharing. Media Gallery $3,500.00 Part of the Artemis Social Networking package. Capabilities for monaging online photo/media galleries, display and sharing, download/upload photos. Blog $1,500.00 Part of the Artemis Social Networking package. For budge[ estimates, one application is assumed. Enhanced Graphic Design $800.00 per page Enhancements to graphic design beyond homepages and tap level subpages. For budget estimates, a number of three pages will be considered. This will be billed on an as- needed basis. Popular Pages Module $2,500.00 Dynamically pulls a fisting of the [op 5 site (inks. For both city and county specific links. Online Forms Module $2,500.00 Conversion of existing PDF forms and creation of new forms. Forms editable by administrator; Validation and reporting included. Includes up to five forms. Additional forms can be created at $500 per form. E-Notifier -Emergency Alerts $3, 500.00 Emergenry alerts system, with citizen subscription mechanism. E-Notifier -Events and News $3,500.00 Alerts for new events and news. With subscription mechanism. Vendor RFP Module $2,500.00 Lite version of system to publish RFPs to vendors. MyLinks Module $1,500.00 Module will allow end users to create account on the city/county website, and customize/personalize links for [heir use. Core finks module will be enhanced/simplified for this use. E•Newsletters $3,000.00 plus trx Mass Newsletter system. Cost will cover setup of system using myEmma (a third party system). One template design will also be included. myEmmo transactional charges per email mavaooly. BU~~C~t~G4'l#A1~1K~: .. $27;5ElO.t#t~. Page iii Statement of Work: Time and Materials The following items will be implemented in a Time and Materials basis. Hourly estimates and costr associated with each of the following modules are intended to be an estimated number only, not a guarantee of final cost. Scope wilt be further defined in a functional requirementr document during the Architecture phase. r Custom Application Development $125/hour 3r° Party Module Skins $b,000.00 Exclusively limited to development and delivery of HTML/CSS; Vendor communications. In some simple applications, if budget permits, Artemis wilt ossist in integrating HTML/C55. $1,500 per module (4 modules assumed) Artemis Onsite Visit $4,000.00 Artemis staff will go on site far either or all of the following project milestones, at the Lity's discretion: Wireframes and content organization, graphic design presentation and CMS training. For budget considerations it's assumed a 2-day onsite work visit far two members of our staff @ $115 per hour per resource" Estimate for Transportation, Hotel, etc $4,000.00 *Airfare, transportation, hotel accommodations and meals pricing varies depending on time of visit and are to be priced in a separate proposal when exact days have been specified. Page iv Statement of Work: 3rd Party Offerings Ili ~` t'~`'~ ~..<„~r,w~~ ., Online Permits* See Appendix B (Enliven quote) $8,500.00 plus payment transactional fees Online application, payment, approval and issuance * Notice of Disclosure on 3rd Party Vendor offering: This is a notice of disclosure to the client (COA/PCof Aspen) hereby known as "client" that they are entering into contract with a 3rd party vendor and that they are subject to the terms of use issued by the vendor. Artemis Solutions Group has no legal requirements/responsibility for maintenance of services or applications maintained by the vendor and shall be held harmless in the event of loss/disruption of service, availability, or functionality of services and/or modules. In the event of termination of service -initiated by either the client or the 3rd party vendor -Artemis Solutions Groups is not liable for providing lost services under the previously initiated contractual scope of work. Total Project Cost: $133,875.00 Page v Proiect Phase Duration Consulting 2 weeks Architecture 3 weeks Development 6 weeks Contentlntegration* 2 weeks Implementation 1 week Total Estimated Proiect Duration:l4 weeks "This timeline assumes that content integration will be completed in the allotted number of weeks. For any business day content delay, two business days will be added to the total duration of the project. Page vi MEMORANDUM ~~ TO: MAYOR AND CITY COUNCIL FROM: TIM ANDERSON, RECREATION DIRECTOR DATE OF MEMO: AUGUST 13, 2008 MEETING DATE: AUGUST 25, 2008 RE: APPROVAL OF RESOLUTION FOR MATCHING GRANT FUNDS Summary: Council will find attached a resolution identifying that you are willing to provide matching funds to the Colorado Lottery (Great Outdoors Colorado) if awarded a grant up to $200,000 for the construction of the outdoor pools at the ARC. Staff is submitting a grant application to GOCO (Great Outdoors Colorado) in the amount of $200,000 for the construction of the outdoor pools. It will be December before we know if the funds are awarded to Aspen or not, but this resolution must be part of the grant application identifying Council's willingness to match the GOCO grant. With the use of TABOR funds the $200,000 match is not an issue for Aspen if awarded the grant funds. Staff appreciates Council's support of this resolution. RESOLUTION NO. "I c~ Series of 2008 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING FUNDS AS IDENTIFIED IN THE ATTACHED BUDGET FOR THE CONSTRUCTION OF OUTDOOR POOLS AT THE ASPEN RECREATION CENTER TO MATCH A FUNDING PARTNERSHIP BETWEEN THE CITY OF ASPEN AND GREAT OUTDOORS COLORADO AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there exists a mutual interest between the City of Aspen and the citizens and organizational stakeholders of Aspen for providing Outdoor Recreational activities in a clean and healthy environment at the Aspen Recreation Center; and WHEREAS, an outdoor pool will accomplish the stated goal of providing an outdoor, three- season aquatic facility for local residents, visitors and special needs clients of local nonprofit organizations, as articulated in the City of Aspen Parks and Recreation and Open Space Master Plan; and WHEREAS, the outdoor pool project is a result of the hard work and effort placed into the City of Aspen Parks and Recreation and Open Space Master Plan, which prioritized the implementation of amulti-purpose community recreation center financed by a bond issue approved by the voters and supported by a dedicated sales tax; 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 matching funds with the Colorado Lottery as identified in the grant submission for the construction of an outdoor pool; t0 and does hereby authorize the Mayor or City Manager to execute said contract on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 21st day of AUQUSt , 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 11 p '~' o ~ X N 8 N 8 N 8 y V1 y ° m ~ D A m v 5 ~ ~, ~ oo ~ rn ~ a m ~ n o n o o m ~!! ci ~+ n w m m rl' w 5 ~ ~ 2 • H ~' ' ~ ~ o <~ 'c ` C m . o.. ~ O .°,i '°^ p p R A ~ w c ~ o ~ v .l, p to H ^ ~ A O ~ 5' ~ ' 3 H w S A p Uq o ° oo d 3 ~ to f i g ~ b w w c .. 3 ~' R ~ ° ~. m a 3 ~ C,~ d q ~ x z ~ C' m ° h ~. ~ c 0 [~ ( : GJ' n h 4 ~ ~ QS O \ ~ 'r ~ ~' F lD W i a ~ \ k ~ \ Z ~~~ y p q ~ . ~ ~ o ~ d ~ o~ a 3 ~~ ~ ~ ~ ~ ~. ° o ~ I ~ t ' ~ ~ o n ~ 5 ~'~ 1 X ow i to ~ ~ ~ 0 ° . ~ , ° . w n 0 0 w 0 8 -1 0 ~ ,c~ o 5 ~ 5 ~ 25 5 ~ 25 8 0 5 ~ 25 5 ~ R g ~ ~' 0 S 8 8 8 8 8 $ 8 ° ~ 0 69 ti ~ fA '1 ti ~ N ~ M ~ r ti ~~p ON 8 ~ cp°pc,,~~~ ~~ pw 8 ~P ~ ~ bi ~ N ~q` A W N .N-~ t~i~ N ~ (Nip p ~ [Tl ~ ~ r~i p~ C ~O , V p N IV ~ V rN I w ~ O N~ ' ~ ' O t o O O 0 0 ~ ~ + :p w O O G V ti $ V ti N ~ S w ~ 'A Ala N , F w °~ $ ( ~ 8 8 8 8 8 8 8 m ~ 9 Y 8 8 8 _ ~ w 8 8 e ~ ~ `" $ w I~ ~ ~ ~ ~ ~ 8 8 O 8 O 8 O 8 O 8 O 8 O 8 O 8 ° O 8 i O O 188 z - ~, ~ ~, e ° ~ ° ~ ~ ~» ~, N 8 z 2 c ~ ~ ° ~ o ° 0 8 m ~. ~ 8 8 8 8 8 8 8 8 i s w o 0 ° 5' Fn ~ O ~ b+ N cA ~ N ~ ~ n~ n ~ o ° o X 0 8 ~° o a _ $ 8 8 8 8 8 8 g ~ ~ n m o d m m ~ G N N N N .j ..~ ,~ O 5' O ~wit tNii O ,.~ 0 ~O ~ ° S ~ 81 8 v~~ MEMORANDUM TO: Mayor and City Council FROM: John Krueger, Lynn Rumbaugh, Transportation Department THRU: Randy Ready, Assistant City Manager DATE: August 13, 2008 MEETING DATE: August 25, 2008 RE: City of Aspen Transit Development Plan SUMMARY/REQUEST OF COUNCIL This memo outlines the Transportation Department's request for approval of: 1. Resolution #~ authorizing the City Manager to execute a professional service agreement between the City of Aspen and LSC Transportation Consultants for the purposes of completing a Transportation Development Plan (TDP); and 2. A supplemental funding request for 2008 in the amount of $6Q,000 for [he Transit Development Plan (TDP) to be presented to Council as part of the upcoming supplemental budget request. The TDP process addresses both City Council's and the Citizen Budget Task Force's request for local system analysis. PREVIOUS COUNCIL ACTION: • In 2001, Counci] approved and funded the City's most recent Transit Development Plan. • In 2008, Council appointed a Citizen Budget Task Force to review and make recommendations regarding departmental budgets and work programs. 1 • In July 2008, City Council directed the Transportation Subcommittee of the CBTF to focus on possible improvements to local bus routes. Staff recommended a TDP as the method for reviewing all City routes. • In August 2008, the CBTF recommended that the City move forward with a TDP. BACKGROUND At a July 7, 2008 work session, the CBTF transportation subcommittee provided Council with recommendations regarding RFTA's upcoming Bus Rapid Transit ballot measure. City Council requested that the group refocus by providing recommendations on Aspen shuttle routes as well as the implications of a "do nothing" BRT scenario. In lieu of attempting to develop meaningful system-wide recommendations during the Task Force's short tenure, staff requested that City Council approve and fund the undertaking of a Transit Development Plan process. After reviewing and commenting on the proposed scope, the Task Force recommended that the City move forward with the TDP process, DISCUSSION In 2001, the City of Aspen undertook a TDP process which involved extensive surveying; analysis of routes, schedules, vehicles and facilities; suggestions for route improvements; and recommendations for cost saving measures. The resulting study, City of Aspen Transit Plan Technical Memorandum: Existing Conditions and Alternatives Analysis, has proven an invaluable resource for upgrading service as evidenced by the Burlingame/Hwy 82 and Maroon Creek Road routes. The report also assisted staff and City Council with implementing the least impactful service reductions during lean times. In essence, a TDP (also known as a Transit Element in state transportation planning parlance) is a short-term (5-6 year) planning tool that assesses capital, operational and financial needs as well as short and long-term service options. These documents assist transit systems with: • Reviewing existing transit services and examining alternatives; • Projecting available revenues; • Estimating transit needs and demand; • Coordinating/consolidating existing services; and Z • Designing/developing new services Conducting a TDP at this juncture is timely for a number of reasons. Council has expressed interest in hosting transportation open houses in spring 2009 to include information on a number of issues including but not limited to Entrance to Aspen alternatives, bus lanes, free Aspen-Snowmass bus service, changes in residential parking regulations, Bus Rapid Transit and pedestrian trail master planning efforts. The proposed TDP could be completed by spring 2009, in time for these open houses. In addition, a new TDP could take into account conditions that were not in place in 2001 including: • Burlingame Ranch, Limelight and other developments; • BMC West, Aspen Valley Hospital, Lift 1-A and other planned developments; • Hwy 82 and Main Street bus lane implementation; • use tax and other funding sources; and • relationship of city transit services to possible BRT system implementation. In the interest of timeliness and cost-efficiency staff recommends retaining the firm LSC for this process. LSC has assisted with City, RFTA and CDOT transit planning efforts, including Aspen's 2001 TDP. The firm has an extensive knowledge of City shuttle and RFTA valley systems. Using the 2001 TDP as a starting point, LSC could undertake this process more quickly and cost effectively than a new firm. A citizen advisory committee, which could include members of the current transportation subcommittee, is proposed as part of this process. The committee would meet with staff and members of the consultant team to review and comment on the scope of work, draft and final reports. FINANCIAL/BUDGETlMPACTS The Transportation Department budget does not have sufficient funds currently approved to cover the costs of the proposed TDP. LSC Transportation Consultants has estimated their costs at $55,490.00 based on the attached scope of work. Staff is requesting a total of $60,000.00 in supplemental funding. The additional $4,590.00 would be used to cover internal costs such as citizen committee and open house meeting materials. ENVIRONMENTAL IMPACTS Transit Development Plans assist transit systems with the development and implementation of effective service which, in turn, can decrease the use of single occupant vehicles. RECOMMENDED ACTION Staff recommends that City Council approve and fund a TDP process. ALTERNATIVES Council could deny the undertaking of a TDP process and proceed with local transit service planning in some other manner. ATTACHMENTS Resolution #~ Professional Services Agreement TDP scope of work and cost estimate ~- 0. ~ ~ ~ U sue, ~fo ~-~ ~~~~~ ~~ 4 RESOLUTION # (Series of 2008) A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO APPROVING AN AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF ASPEN, COLORADO, AND LSC SETTING FORTH THE TERMS AND CONDITIONS OF THE AGREEMENT FOR THE 2008-09 TRANSIT DEVELOPMENT PLAN AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT. WHEREAS, there has been submitted to the City Council an agreement between the City of Aspen, Colorado, and LSC, a copy of which agreement 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 the Agreement for Professional Services between the City of Aspen, Colorado, and LSC, for the 2009-09 Transit Development Plan, 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 August 25, 2008. Kathryn S. Koch, City Clerk H:\TDF'\Ieso .doc AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and LSC Transportation Consultants, 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 care and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than March 1, 2009. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except For reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed $60,000.00. 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-Assienability. Both parties 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 be 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 terminate this Agreement, without specifying the reason therefore, by giving notice, in writing, addressed to the other party, specifying the effective date of the temunation. No fees shall be earned after the effective date of the YJl-Y/1.doC Page 1 termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepazed 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 Ciry may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 6. Covenant Against Contingent Fees. The Professional warrants that shie 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 relafionship. 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, aze available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and(or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the Ciry 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 wort 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 agees 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 wntract 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 subwntractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such wvetages shall be procured and maintained with forms and insurance acceptable to the City. All wverages 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 wntinuous wverage. (i) Workers' Compensation insurance to rover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each awident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease -each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include wverage for bodily injury, broad form property damage (including wmpleted operations), personal injury (including coverage for wntractual and employee acts), blanket wntractual, independent contractors, products, and wmpleted operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum wmbined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each owunence 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 in performance of the Scope of Work. The policy shall wntain a severability of interests provision. If the Professional has no owned automobiles, the PS1-971.doc requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or 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 inanrance agent as evidence that policies providing the required coverages, condi- tions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The 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. (~ 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 CII2SA Property/Casualty Pool. Copies of the CIItSA policies and manual aze kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. PS1-971.doc Page City shall provide Professional reasonable notice of any changes in its membership or participafion in CIRSA. 11. Completeness of Agreement, 1t is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there aze 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: Professional: City Manager Gordon Shaw, PE, AICP, Principal City of Aspen LSC Transportation Consultants, Inc. 130 South Galena Street PO Box 5875, 2690 Lake Forest Road Aspen, Colorado 81611 Tahoe City, CA 96145 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 agees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any 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 condiflon, 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. Pumose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added PSI-971.doc Page 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 Ageement. "Services" means the famishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. c. By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not employ illegal aliens. d. Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new PS1-971.doc Page 6 employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Progam 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 Yage 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 seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 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 ATTESTED BY: N S BY: CITY OF ASPEN, COLORADO: By: Title: Date: PROFESSIONAL: LSC Transport~ati'on~Consultants, Inc. Title: f ~,~s. r,Yj~, ~~o. Date: /4~i ~ .~ PS1-971.doc Page 9 Attachment A TDP SCOPE OF WORK AND COST ESTIMATE 2008-09 TRANSIT DEVELOPMENT PLAN WORK SCOPE & COST ANALYSIS TASK 1: STUDY INITIATION /DATA COLLECTION Purpose To establish the communication links and information processes necessary to the success of the study. To finalize the scope of the study and determine responsibilities for data collection. To set the institutional and demographic context in which the plan is being developed. This task will provide the CONSULTANT Team with a clear understanding of the goals of the study, the data available, and the steps needed to develop a useful final study product. Method CONSULTANT will develop and provide a list of desired data items. An initial meeting will be held in Aspen between the CONSULTANT, City staff, RFTA staff, and others at the staff*s discretion. This meeting will have a number of goals, including the following: 1. Review of the data list to identify any missing items and to decide a course of action to collect or develop additional data. 2. Identify groups or individuals that the CONSULTANT should contact for input to the study. 3. Identify and discuss issues for further analysis in the study, to identify the position of local interest groups and stakeholders. A preliminary list of study issues consist of the following: * Appropriate revisions to transit services to address current and proposed development within the community, including but not limited to Aspen Valley Hospital, Burlingame Ranch, Aspen Club & Spa, BMC West, Lifr 1-A and the Limelight Lodge. * Changes in the seasonal level of activity in the community and route ridership patterns. * Current routing issues including Burlingame/Hwy 82, Cross Town, Mountain Valley and Castle/Maroon routes. * Hours/dates of operation *Improved coordination of City services with changes in other RFTA services *Coordination of City services to better serve school and hospital campuses *Coordination with possible BRT plan 4. Finalize the work program to best address the issues identified, and to best address the additional data needs. To meet the goals of the community, it is essential that the transit plan be developed within the context of other planning processes. It will be important to collect and review pertinent documents, including the following: * The Aspen Area Community Plan * Current development plans * The 2004 Local & Regional Travel Pattern Study * The Canary Initiative In addition to citing any transit-related plan elements, CONSULTANT will review and summarize the requirements placed upon the local transit program by each of these planning processes, and the role that public transit services can take in attaining these requirements. The Aspen Area Community Plan and its current updating will be given particular focus to ensure that the transit plan is consistent with established community transportation goals. CONSULTANT would also propose to review any demographic data updated since the last transit plan, focusing on population, housing stock (primary vs. second homes), and commute patterns. Demographic data available through the City*s GIS department will also be collected and reviewed. In addition, CONSULTANT will update information concerning major activity centers, such as recreational facilities, school facilities, and other major transit trip generators. As part of this task CONSULTANT would propose to publish a survey form in both of the local newspapers and/or on-line to elicit general public comments regarding transit services. Readers would be asked to clip the form (roughly 8 X 10 inches) and return it via mail or fax, or by dropping it by City Hall. This survey would elicit comments regarding the following: * Perception of the existing service * Identification of factors that would lead to increased transit usage * Suggestions for service and bus stop improvements CONSULTANT will input the resulting data into a spreadsheet for summary and analysis. In addition, CONSULTANT will summarize all comments received, and prepare a discussion of the survey results. While this survey approach will not result in statistically significant results, CONSULTANT found in the previous transit study for Aspen that the perceptions and comments received are useful in establishing the community*s attitude toward transit services, and in generating ideas for further evaluation. CONSULTANT will also assist City staff with regards to any additional public input processes that may be deemed appropriate, such as advisory groups or open houses. Specifically, CONSULTANT will help to identify issues and questions to be addressed, and will review public comments and incorporate them into the study process. Product The data will be compiled and organized into a report format. The data will be presented in graphics and tables with supporting narrative as part of a Technical Memorandum, to be produced at the conclusion of Task 3. 6 TASK 2: ON-BOARD SURVEY Purpose This effort would help to provide a clear understanding of actual trip-making patterns of existing transit ridership, their demographic characteristics, their perception of existing services, and their needs for service improvements. Method CONSULTANT would propose that this survey be developed, administered and analyzed by CONSULTANT. The first step in this process will be for CONSULTANT to review previous RFTA survey forms, and develop an adequate survey instrument. Data collected might include the following: * Travel mode to and from the bus * Trip origin and destination (place name or street intersection) * Ridership frequency * Trip purpose * Reason for using the bus, and auto availability * Opinion regarding transit service characteristics * Age * Desired service improvements CONSULTANT will develop a draft survey instrument, and present this instrument to City staff for review and comment. Any necessary comments will be incorporated to develop the final survey form. CONSULTANT, city or temp staff would be placed on each route for a minimum of half of the runs on each route over the course of the service day, distributed across the Aspen City Service span of service. (Not all routes need be surveyed on the same day.) Each surveyor will be responsible for distributing and collecting the survey forms and pencils, assisting passengers with the form as needed, keeping the vehicle free of discarded forms and pencils, and conducting aboarding/alighting count by stop. Survey days will be chosen to be representative of typical peak season conditions. Product The collected data will be entered by CONSULTANT staff into a spreadsheet program developed by CONSULTANT, which can be converted to Excel, dBase, ASCII, or Paradox files. The data will be evaluated to yield summaries regarding the following: * Passenger characteristics * Perception of existing services * Trip origin destination * Desired service improvements In addition to straight tabulations, CONSULTANT will conduct cross-tabulations between passenger characteristics and other survey responses. 7 TASK 3: ANALYZE RIDERSHIP AND TRANSIT SERVICE EFFECTIVENESS Purpose This task will establish the existing conditions regarding public transportation in Aspen, as the basis for decision-making regarding future changes in service. This task will also determine whether the transit services are provided in an effective and efficient manner. Method The CONSULTANT will compile data regarding the City routes, as provided by RFTA ridership and service records. A profile of each service will be prepared, including the following: * Span of service * Service frequency * Vehicle-hours of service * Vehicle-miles of service * Marginal operating cost * Fully allocated total cost A detailed analysis of ridership patterns will then be developed. At a minimum, the following service data will be developed on a route-by-route basis for the system as a whole: * Ridership by month over a full year * Ridership by day of week for a typical week in each season * Ridership by run for a typical day in each season * Peak passenger load * Average daily boarding and de-boarding by stop, for both winter and summer conditions. * On-time performance/number of missed trips * Annual passenger fare revenue (for the Mountain Valley Dial-A-Ride) * Trend analysis of total passenger-trips over each of the last five years This information will be used as the basis of a performance analysis for each route, and for the service as a whole. Performance indicators to be evaluated will include passengers per vehicle-hour, passengers per vehicle mile, subsidy required per passenger-trip, and on-time performance. A discussion of the strengths and weaknesses of each existing transit route will then be prepared. Product A thorough and up-to-date summary of operations and ridership for each route as including an analysis of service effectiveness by route, time of day, day of week, and season. This information will be presented in the Technical Memorandum, to be produced at the conclusion of Task 4. TASK 4: DEVELOP TRANSIT OPERATING AND CAPITAL ALTERNATIVES Purpose In this task, a wide range of service, capital, and institutional alternatives will be developed that address the planning issues identified by the CONSULTANT Team and City staff, and to meet any additional feasible needs identified through [he study process. The alternatives will be analyzed in terms of expected effectiveness, efficiency, and progress towards meeting the local goals for transit service. Method The CONSULTANT team will work with City staff members, and others as deemed appropriate, to determine alternatives which should be evaluated. The alternatives will be formulated based on the transit needs identified in previous tasks to address any existing service deficiencies. (An initial list of alternatives is presented above as part of Task 1.) The CONSULTANT will develop detailed information on each service alternative. The detailed information will be used in the analysis of each alternative and the development of recommendations to the client. The following information will be provided for each alternative: * Type of service to be offered * Operating characteristics, including service areas, routes and schedules, hours of operation, vehicle mileage, ridership, impact on staffing requirements, etcetera. * Impact of Main Street and Hwy 82 transit lanes *Impact of planned BRT system * Impact on ridership, by type of rider * Financial characteristics including operating, capital, and administrative costs; impact on fare revenue (if appropriate) * Impact of use tax as a funding mechanism. * Impact of expanded paid parking on ridership * Options for streamlining service by accessing deadheading valley buses and/or redundant skier/city service. Each of these components will be incorporated into acost-effectiveness analysis for the alternatives. The alternatives will also be evaluated based on the goals and objectives for transit service in the study area. Specific alternatives that will be evaluated will include: * Changes in the span of service (hours of operation) for various seasons * Modifications to routes * Modifications to schedules * Implementation of fares * Improvement in service frequency, and * Changes in type of service between fixed-route and demand-response service. In addition, CONSULTANT will evaluate potential capital issues associated with the City services. This will include a review of appropriate bus size for the various City services. In addition, City Staff will inventory all existing bus stops in Aspen, which CONSULTANT will review to evaluate options to improve passenger amenities at existing and potential future stops. 9 Product A comprehensive analysis of alternatives will be prepared, which will be presented as the final section of the Technical Memorandum. Copies of the Technical Memorandum will be presented to staff for review and comment upon conclusion of this task. An electronic version and three hard copies will be provided. Any revisions to the Technical Memorandum will be incorporated into the Draft and Final Transit Plans. The CONSULTANT will also meet with staff to present the results of the analysis and to assist in the selection of recommendations. 10 TASK 5: DEVELOP RECOMMENDED TRANSIT PLAN Purpose To review, finalize, and summarize the CONSULTANT Team's recommendations regarding service and capital improvements, develop a detailed financial plan, and provide an implementation schedule. Method The basis for the recommended transit improvements will be a careful evaluation of the service alternatives developed in Task 4. The CONSULTANT Team will meet with staff to review and discuss the results of the alternatives analysis. As necessary to resolve outstanding issues, CONSULTANT Team members will be available for additional meetings or phone conferences. The result will be development of a recommended service plan that will include service area, type of service, span of service, and service frequency for all types of services studied. Recommendations will also be made regarding any modifications to routes and schedules. A capital improvement plan will be developed to support the service recommendations. Specific elements of the capital recommendations will include: * Vehicle characteristics (including fuel source) for both replacement and expansion vehicles. * Passenger facilities, including improvements to transfer centers and bus stops as well as needed facility improvements and recommendations for dealing with space constraints. Both the operating and capital recommendations will be used to forecast future financial requirements. These requirements will then be used to make final recommendations regarding Financial strategies. The forecasted changes in operating costs, future capital requirements, and changes in financial resources will all be input into aspreadsheet-based financial forecast for the system. Through an iterative process, differing capital and service improvement plans can be evaluated to ensure that an adequate funding balance is maintained through the life of the plan. This task will result in a financial plan that includes analyses of both revenue and expenditures for afive-year plan period. Finally, ayear-by-year implementation schedule will be developed for all plan elements, identifying responsible parties and financial requirements. This schedule will identify the entities responsible for implementation of each plan element. Product The CONSULTANT will present the findings of the study in a Draft Aspen City Service Transit Plan to City staff. The CONSULTANT will also provide the revised information contained in the technical memorandum. 11 TASK 6: REPORT PREPARATION AND PRESENTATION Purpose This task involves the preparation of interim and final documents, and review and approval as to whether the documents are acceptable and adequately addresses the needs of the City and its residents. Method Over the course of the study, an interim technical memorandum will prepared and presented at the end of Task 4, as discussed above. Five administrative copies of Administrative Draft Plan (including an executive summary) will be provided to City staff at the conclusion of Task 5. Following administrative review and CONSULTANT revision, one unbound and two bound copies of the Draft Plan will be prepared, along with an electronic version. In addition, CONSULTANT will post a report in PDF format on its web site. After review and approval of the Draft Plan, one unbound and two bound copies of the Final Plan and an electronic copy will be provided in a PDF file. The Final Aspen City Service Transit Plan will document all of the work accomplished in the project. Product A Final Aspen City Service Transit Plan that can stand as a blueprint for revisions to the City services, and serve as the basis for agreements between the City and RFTA. Cost Estimate Estimated cost including CONSULTANT time and travel, printing, copying, etc: $55,490.00. 12 ooooog a goo 000 U ° M h ~ w» m ~~~ w w ~ w w ~ w ~rom~,cav~ ha- w u, ,,, ao ao ~. O = M.. 0 0 (n I~Aj ~ Q~ ^ ~ UI S 7 . U ~Cn .~ ~ y~ pp ~95~ N ` ~ V M C4 r ~1 C7 t3 N ~ ~ .~ ~ ~ Wl aiC a ~ ~ ~ ~ C1 a g p ~~ ~ ~~ ~ of ... ~Nfl C C 4 ~ .~ '° F ~ ~j Q p V ~a c v u~i W c C ~ ~ ~ ~~G~ r a O {7 ~ ~~~~ ~ p~~~~~ W ~" ~~a~ ~ ~ U o ffj Y Y1' YY`1 U ~ ~~~~~~ visa. MEMORANDUM TO: Mayor and City Council FROM: Don Taylor, Director of Financial Services DATE OF MEMO: 8-18-08 MEETING DATE: 8-25-08 RE: Authorization to issue Bonds for Castle Creek Hydroelectric Facility SUMMARY: This ordinance allows the City Council to authorize the issuance of bonds in the amount of $5,500,000 for the purpose of construction a hydroelectric facility on Castle Creek. Aspen voters approved the debt and the project was included in the 2008 budget. PREVIOUS COUNCIL ACTION: In November of 2007 voters approved a ballot question authorizing the issuance of general obligation bonds in order to finance the construction of a small hydroelectric facility. The amount of the Bonds authorized for issuance was $5,500,000. Construction of the facility was included in the 2008 budget and it is now time to put the financing in place. REQUEST OF COUNCIL: Staff requests that City Council approve the ordinance authorizing the issuance of bonds to construct the Castle Creek hydroelectric facility. DISCUSSION: At an election held on November 6, 2007, the eligible voters of the City authorized the City to issue $5,500,000 in general obligation bonds in order to finance the costs of the project. The project consists of constructing and equipping a new hydroelectric facility. The proposed hydroelectric facility, to be known as the Castle Creek Hydroelectric Plant, will utilize existing water rights, head gates, raw water transmission and water storage components of the original Castle Creek hydroelectric plant, which met all of the City's electric power needs from 1892 through 1958, when it was decommissioned. The project is planned to reestablish the generating capacity of the original plant, which will require construction of a new powerhouse, penstock, head works, and tail race along with the installation of a new turbine, generator and control equipment. The project is also planned to include enlarging portions of the Castle Creek pipeline (raw water supply) to eliminate deficiencies in hydraulic capacity. The proposed facility will be located on property owned by the City and no real estate will be necessary to be acquired to complete the project. The City's total budget for the project is currently $6,197,981. The project is anticipated to be funded from proceeds of the Bonds, payments from CORE (Community Office of Resource Page 1 of 3 Energy), and available moneys in the City's Electric Enterprise Fund. A summary of the estimated costs and funding sources relating to the Project aze set forth below. Estimated Costs: Construction ............................................... . Contingency 1 Engineering, Architectural, Permitting and Other Soft Costs 2 Total Funding Sources Bond Proceeds 3 CORE Payments Electric Enterprise Fund Available Moneys Total $3,495,000 803,850 1,899,131 $6,197,981 $5,500,000 400,000 297,981 $6,197,981 1 Includes 15% contingency, costs of mobilization, demobilization, and allowance for unlisted items. 2 Includes costs of issuance of the Bonds. 3 Preliminary, subject to change. The City's Project schedule anticipates that it will be completed, and operations of the Castle Creek Hydroelectric Plant will begin, in 2010. Other than the certain raw water supply improvements, construction of the Project requires that the City obtain from the Federal Energy Regulatory Commission (FERC) a FERC Conduit Exemption, a form of license. The City is in the process of applying for such license. Upon completion of the Project, the City expects its expenditures for the purchase of electric energy From the Municipal Energy Agency of Nebraska (MEAN) will decrease, resulting in an increase in the City's Electric Enterprise Fund revenues estimated at approximately $300,000 annually. The Bonds aze general obligations of the City payable from available electric utility fees and ad valorem property taxes levied by the City pursuant to the ordinance. The full faith and credit of the City aze pledged for the payment of the principal of and interest on the bonds. The annual debt service on the bonds is expected to be less than $359,000 per year. The ordinance authorizing the issuance of the bonds is presented as an emergency ordinance. While there will still be two readings of the ordinance, adopting the ordinance as an emergency ordinance makes it effective immediately (after second reading) and allows for timely closing of the bonds. Typically ordinances do not become effective unti130 days after adoption. Investors that subscribe to the bonds expect to close quickly after they commit to the purchase. The bonds will be subscribed to by investors between first and second reading based on a parameters provision that is in the ordinance. This is found in section 22 of the ordinance and provides the conditions under which the bonds aze to be offered. If subscriptions cannot be Page 2 of 3 completed under these approved parameters the offering will be cancelled and we will return to Council with alternatives. Attached to the ordinance is a draft of the preliminary official statement (POS). It contains information related to this offering for investors to consider when buying the bonds. ALTERNATIVES: Substantial commitments to completion of this project have already been initiated. Alternatives at this stage would be to cancel the project or to make dramatic changes to the capital plan to fund this on a pay as you go basis. Neither of these are recommended or considered as very viable alternatives. ~~,,,t.•,.p..,..Q ~~. ~~ o~.' ~,-~ c~.~a-- Page 3 of 3 ORDINANCE N0.~3(SERIES OF 2008) AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF ASPEN, COLORADO, OF ITS GENERAL OBLIGATION ELECTRIC UTILITY BONDS, SERIES 2008, FOR THE PURPOSES SET FORTH IN THE BALLOT QUESTION AUTHORIZING SUCH BONDS; PROVIDING FOR THE PAYMENT OF SUCH BONDS FROM ELECTRIC UTILITY PEES AND TO THE EXTENT CITY COUNCIL DETERMINES THAT THE REVENUES PROJECTED TO BE AVAILABLE FROM SUCH FEES WILL BE INSUFFICIENT TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON SUCH DEBT AND TO OTHERWISE COMPLY WITH THE COVENANTS OF THIS ORDINANCE OR OTHER INSTRUMENTS GOVERNING SUCH DEBT IN ANY YEAR FROM THE PROCEEDS OF AD VALOREM PROPERTY TAXES; PROVIDING FOR THE LEVY OF AD VALOREM PROPERTY TAXES FOR THE PAYMENT OF SUCH BONDS; PROVIDING THE FORM OF SUCH BONDS AND OTHER DETAILS WITH RESPECT TO SUCH BONDS AND THE PAYMENT THEREOF; APPROVING OTHER DOCUMENTS RELATING TO SUCH BONDS; AND DECLARING AN EMERGENCY. RECITALS WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of Colorado, is a legally and regularly created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado and the home rule charter of the City (as more particularly defined in Section 1 herein, the "Charter") (all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning assigned in Section 1 of this Ordinance); and WHEREAS, under the Charter, the City is possessed of all powers which are necessazy, requisite or proper for the government and administration of its local and municipal matters, all powers which are granted to home rule municipalities by the Colorado Constitution, and al] rights and powers that now or hereafter maybe granted to municipalities by the laws of the State of Colorado; and WHEREAS, the City is authorized by Section 10.1 of the Charter to borrow moneys and to issue general obligation bonds to evidence such borrowing, subject to the approval of a question proposing their issuance at a general or special election by a majority of registered electors of the City voting thereon; and WHEREAS, at an election called on November 6, 2007, the City submitted the following question (the "Ballot Question") to the registered electors of the City for approval: SHALL CITY OF ASPEN DEBT BE INCREASED BY UP TO $5,500,000, WITH A MAXIMUM REPAYMENT COST OF $10,780,000 BY THE ISSUANCE OF GENERAL OBLIGATION BONDS FOR THE PURPOSE OF CONSTRUCTING AND EQUIPPING A NEW HYDROELECTRIC FACILITY ON CASTLE CREEK, WHICH 4843-1239-0402.5 DEBT SHALL BE PAYABLE FROM (1) ELECTRIC UTILITY FEES AND (2} TO THE EXTENT THE CITY COUNCIL DETERMINES THAT THE REVENUES PROJECTED TO BE AVAILABLE FROM SUCH ELECTRIC UTILITY FEES WILL BE INSUFFICIENT TO PAY THE PRINCII'AL OF, PREMIUM, IF ANY, AND INTEREST ON SUCH DEBT AND TO OTHERWISE COMPLY WITH THE COVENANTS OF THE ORDINANCE OR OTHER INSTRUMENTS GOVERNING SUCH DEBT IN ANY YEAR, FROM THE TAXES DESCRIBED BELOW; SHALL CITY TAXES BE INCREASED BY UP TO $359,128 ANNUALLY IN ANY YEAR BY THE LEVY OF AD VALOREM PROPERTY TAXES, WITHOUT LIMITATION AS TO RATE OR AMOUNT OR ANY OTHER CONDITION, TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON SUCH DEBT AND TO OTHERWISE COMPLY WITH THE COVENANTS OF THE ORDINANCE OR OTHER INSTRUMENTS GOVERNING SUCH DEBT IF AND TO THE EXTENT THE CITY COUNCIL DETERMINES THAT THE REVENUES PROJECTED TO BE AVAILABLE FROM SUCH ELECTRIC UTILITY FEES WILL NOT BE SUFFICIENT THEREFOR; SHALL SUCH DEBT MATURE, BE SUBJECT TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND BE ISSUED, DATED AND SOLD AT SUCH TIME OR TIMES, AT SUCH PRICES (AT, ABOVE OR BELOW PAR) AND IN SUCH MANNER AND WITH SUCH TERMS, NOT INCONSISTENT HEREWITH, AS THE CITY COUNCIL MAY DETERMINE; AND SHALL THE CITY BE AUTHORIZED TO COLLECT, RETAIN AND EXPEND ALL OF [THE REVENUES OF SUCH TAXES, THE PROCEEDS OF SUCH BONDS AND THE EARNINGS THEREON] IN 2007 AND EACH SUBSEQUENT YEAR, NOTWITHSTANDING THE LIMITATIONS OF ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION (TABOR), SECTION 29-1-301, COLORADO REVISED STATUTES, OR ANY OTHER LAW? WHEREAS, a majority of the registered electors of the City voting on the Ballot Question at the November 6, 2007 election voted in favor of the Ballot Question; and WHEREAS, the City Council of the City (the "City Council") has determined that it is in the best interests of the City and its residents to issue the City of Aspen, Colorado, General Obligation Electric Utility Bonds, Series 2008 (the "Series 2008 Bonds" or the "Bonds"}, for the purposes of constructing and equipping a new hydroelectric facility on Castle Creek to become part of the City's Electric Utility system (as defined herein, the "Project") and paying the costs of issuance of the Bonds; and WHEREAS, the City Council has been presented with a proposal from Stifel Nicolaus & Company, Incorporated, of Denver, Colorado, to purchase the Bonds upon specified terms and conditions, the final terms and conditions of which are to be set forth in the Bond Purchase Agreement in accordance with the Sale Certificate, and, after consideration, the City Council has determined that the negotiated sale of the Bonds, subject to the parameters set forth herein, to said company is to the best advantage of the City; and WHEREAS, pursuant to the Ballot Question, the City Council intends to pay the principal of, premium, if any, and interest on the Bonds from: (a) customer usage fees and any other fees received from the operation of the City's Electric Utility system on deposit in the 4843-1239-0402.5 2 City's Electric Funds (as defined herein) and available for the payment of the Bonds (as more particularly defined herein, "Available Electric Utility Fees"); and (b) to the extent Available Electric Utility Fees are not sufficient, ad valorem property taxes authorized in the Ballot Question; and WHEREAS, notwithstanding the City's intention to pay amounts due on the Bonds from Available Electric Utility Fees and ad valorem property taxes authorized in the Ballot Question, the Bonds are general obligations of the City and the full faith and credit of the City are pledged to their payment; and WHEREAS, no member of the City Council has a potential conflict of interest in connection with the authorization, issuance, sale or use of proceeds of the Bonds; and WHEREAS, pursuant to Section 4.11 of the Charter, the City is authorized to adopt emergency ordinances for the preservation of public property, health, peace, or safety; and WHEREAS, there is a need for issuing the Bonds in a timely manner in order to take advantage of existing market conditions and obtain the greatest savings to the City's inhabitants, thus freeing up City revenues which can be used for the purposes of preserving public property, health, peace and safety; and WHEREAS, this Ordinance is being adopted to authorize the issuance, sale and delivery of the Bonds, to provide for the payment of the Bonds and to provide the details of the Bonds; and WHEREAS, there has been presented to the City Council, among other things, substantially final forms of (a) the Preliminary Official Statement, (b) Paying Agent Agreement, (c) the Bond Purchase Agreement (subject to completion in accordance with the terms of the Sale Certificate), and (d) the Continuing Disclosure Undertaking; and WHEREAS, the City Council desires, as provided in the Supplemental Public Securities Act, Part 2 of Article 57 of Title 11 of the Colorado Revised Statutes, as amended, to delegate the authority to the Mayor of the City, or to the Mayor Pro Tem of the City, in the Mayor's absence, to determine certain provisions of the Bonds to be set forth in the Sale Certificate, in accordance with the provisions of this Ordinance. NOW, THEREFORE, BE IT ORDAINED, BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, that: Section 1. Definitions. The following terms shall have the following meanings for purposes of this Ordinance: "Acts" means, collectively, the State Constitution, the Charter, and Part 2 of Article 57 of Title 11, Colorado Revised Statutes, as amended. "Available Electric Utility Fees" means, as of any particular date of determination, all Electric Utility Fees and earnings thereon on deposit in the City's Electric Funds and available for payment of the principal of, premium, if any, and interest on the Bonds after taking into 4843-1239-0402.5 3 account all administrative, operation and maintenance expenses of the City payable from the Electric Funds, as determined by the City. "Ballot Question" means the ballot question approved by City voters on November 6, 2007, defined as such in the preambles hereto. "Bond Account" means the City of Aspen, Colorado, General Obligation Electric Utility Bonds Series 2008 Bond Account" created pursuant to the Section hereof entitled "Creation of Accounts." "Bond Counsel" means (i) as of the date of issuance of the Bonds, Kutak Rock LLP, and (ii) as of any other date, Kutak Rock LLP or such other attorneys selected by the City with nationally recognized expertise in the issuance of municipal bonds. "Bond Obligation" means, as of any date, the principal amount of Bonds then Outstanding. "Bond Purchase Agreement" means the agreement between the City and the Underwriter concerning the purchase of the Bonds by the Underwriter "Bonds" means the Series 2008 Bonds. "Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions in the State are authorized or obligated by law or executive order to be closed for business. "Charter" means the Charter of the City of Aspen, adopted June 16, 1970, as amended. "City" is defined in the recitals hereof. "City CounciP' means the City Council of the City, and any successor body. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to a section of the Code herein shall be deemed to include the United States Treasury Regulations proposed or in effect thereunder and applicable to the Bonds or the use of proceeds thereof, unless the context clearly requires otherwise. "Continuing Disclosure Undertaking" means the undertaking to facilitate compliance with Rule 15c2-12 under the Securities Exchange Act of 1934 in substantially the form appended to the Preliminary Official Statement. "Dated Date" means the original dated date for the Bonds as established in the Sale Certificate. "Defeasance Securities" means cash funds or bills, certificates of indebtedness, notes, bonds or similar securities which are direct non-callable obligations of the United States of America or which are fully and unconditionally guaranteed as to the timely payment of principal 4843-1239-0402.5 4 and interest by the United States of America, to the extent such investments are Permitted Investments. "DTC" means The Depository Trust Company, New York, New York, and its successors in interest and assigns. "DTC Letter of Representations" means the Blanket Letter of Representations dated July 26, 1999 between the City and DTC with respect to the book-entry registration system for the Bonds. "Electric Funds" means the City's existing Electric Enterprise Fund and Ruedi Hydroelectric Enterprise Fund (also sometimes referred to as the Electric Fund and Ruedi Hydroelectric Fund), and any other fund created by City Council for the purpose of accounting for revenues received in connection with its operation of electric utilities (including, but not limited to, any fund created to account for revenues relating to the Hydroelectric Facility on Castle Creek). "Electric Utility Fees" means customer usages fees and any other fees received by the City as a result of the City's operation of its Electric Utility. "Event of Default" means any one or more of the events set forth in the Section hereof entitled "Events of Default." "Interest Payment Date" means each June 1 and December 1, commencing December 1, 2008 or such other dates as established in the Sale Certificate. "Official Statement" means the final Official Statement relating to the Bonds approved in the Section hereof entitled "Approval of Related Documents." "Ordinance" means this Ordinance, including any amendment or supplement hereto. "Outstanding" means, as of any date, all Bonds, except the following: (a) Any Bond cancelled by the City or the Paying Agent, or otherwise on the City's behalf, at or before such date; (b) Any Bond held by or on behalf of the City; (c) Any Bond for the payment or the redemption of which moneys or Defeasance Securities sufficient to meet all of the payment requirements of the principal of, premium, if any, and interest on such Bond to the date of maturity or prior redemption thereof, shall have theretofore been deposited in trust for such purpose in accordance with the Section hereof entitled "Defeasance"; and (d) Any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in substitution for which another bond or other security shall have been executed and delivered. 4843-1239-0402.5 5 "Owner" means the Person or Persons in whose name or names a Bond is registered on the registration books maintained by the Paying Agent pursuant hereto. "Paying Agent" means Wells Fargo Bank, N.A., Denver, Colorado, or any successor thereto or assignee thereof approved by the City. "Paying,4gent Agreement" means an agreement with the Paying Agent concerning duties and obligations of the Paying Agent with respect to the Bonds. "Permitted Investments" means any investment in which funds of the City may be invested under the laws of the State at the time of such investment. "Person" means a corporation, firm, other body corporate, partnership, association or individual and also includes an executor, administrator, trustee, receiver or other representative appointed according to law. "Preliminary Official Statement" means the Preliminary Official Statement relating to the Bonds and the City. "Project" means any purpose for which proceeds of the Bonds may be expended under the Charter, the Ballot Question and any provision of any City ordinance or provision of the City's municipal code governing the use of the Electric Utility Fees and the ad valorem property taxes authorized in the Ballot Question, including, but not limited to, constructing and equipping a new hydroelectric facility on Castle Creek and paying the costs of issuance of the Bonds. "Rebate Account" means the City of Aspen General Obligation Electric Utility Bonds Series 2008 Rebate Account created in the Section hereof entitled "Federal Income Tax Covenants." "Record Date" means, with respect to each Interest Payment Date, the fifteenth day of the month preceding the month (whether or not such day is a Business Day) in which such Interest Payment Date occurs. "Sale Certificate" means the certificate executed by the Sale Delegate, under the authority delegated pursuant to this Ordinance, including, among other things, the aggregate principal amount of the Bonds, the prices at which the Bonds will be sold, interest rates and annual maturing principal for the Bonds, as well as the dates on which the Bonds may be redeemed and the redemption prices therefore. "Sale Delegate" means the Mayor of the City or the Mayor Pro Tem in the absence of the Mayor. "Series 2008 Bonds" means the City of Aspen, Colorado, General Obligation Electric Utility Bonds, Series 2008, authorized in the Section hereof entitled "Authorization and Purpose of Bonds." "State" means the State of Colorado. 4843-1239A402.5 "Tax Letter oflnstructions" means the Tax Letter of Instructions, dated the date on which the Bonds are originally issued and delivered to the City by Bond Counsel, as such instructions maybe superseded or amended in accordance with their terms. "Underwriter" means Stifel Nicolaus & Company, Incorporated, the original purchaser of the Bonds. Section 2. Authorization and Purpose of Bonds. Pursuant to and in accordance with the Acts and the Ballot Question, the City hereby authorizes, and directs that there shall be issued: (a) the "City of Aspen, Colorado, General Obligation Electric Utility Bonds, Series 2008," in the aggregate principal amount set forth in the Sale Certificate pursuant to, and subject to the limitations set forth in, the Section hereof entitled "Delegation and Parameters," for the purpose of financing the Project. Section 3. Bond Details. (a) Registered Form, Denominations, Original Dated Date and Numbering. The Bonds shall be issued as fully registered bonds, shall be dated as of the Dated Date and shall be registered in the names of the Persons identified in the registration books maintained by the Paying Agent pursuant hereto. The Bonds shall be issued in denominations of $5,000 in principal amount or any integral multiple thereof. The Bonds shall be consecutively numbered, beginning with the number one, preceded by the letter «R „ (b) Maturity Dates, Principal Amounts and Interest Rates. The Bonds shall mature on December 1 of the years and in the amounts set forth in the Sale Certificate, and shall bear interest at the rates per annum (calculated based on a 360-day year of twelve 30-day months) set forth in the Sale Certificate. (c) Accrual and Dates of Payment of Interest. Interest on the Bonds shall accrue at the rates set forth in the Sale Certificate from the later of the Dated Date or the latest Interest Payment Date (or in the case of defaulted interest, the latest date) to which interest has been paid in full and shall be payable on each Interest Payment Date. (d) Manner and Form of Payment. Principal of each Bond shall be payable to the Owner thereof upon presentation and surrender of such Bond at the principal office of the Paying Agent in the city identified in the definition of Paying Agent in the Section hereof entitled "Definitions" or at such other office of the Paying Agent designated by the Paying Agent for such purpose. Interest on each Bond shall be payable by check or draft of the Paying Agent mailed on each Interest Payment Date to the Owner thereof as of the close of business on the corresponding Record Date; provided that interest payable to any Owner may be paid by any other means agreed to by such Owner and the Paying Agent that does not require the City to make moneys available to the Paying Agent earlier than otherwise required hereunder or increase the costs borne by the City hereunder. All payments of the principal of and interest on the Bonds shall be made in lawful money of the United States of America. 4843-1239-0402.5 7 (e) Book-Entry Registration. Notwithstanding any other provision hereof, the Bonds shall be delivered only in book-entry form registered in the name of Cede & Co., as nominee of DTC, acting as securities depository of the Bonds and principal of and interest on the Bonds shall be paid by wire transfer to DTC; provided, however, if at any time the Paying Agent determines, and notifies the City of its determination, that DTC is no longer able to act as, or is no longer satisfactorily performing its duties as, securities depository for the Bonds, the Paying Agent may, at its discretion, either (i) designate a substitute securities depository for DTC and reregister the Bonds as directed by such substitute securities depository or (ii) terminate the book-entry registration system and reregister the Bonds in the names of the beneficial owners thereof provided to it by DTC. Neither the City nor the Paying Agent shall have any liability to DTC, Cede & Co., any substitute securities depository, any Person in whose name the Bonds are reregistered at the direction of any substitute securities depository, any beneficial owner of the Bonds or any other Person for (A) any determination made by the Paying Agent pursuant to the proviso at the end of the immediately preceding sentence or (B) any action taken to implement such determination and the procedures related thereto that is taken pursuant to any direction of or in reliance on any information provided by DTC, Cede & Co., any substitute securities depository or any Person in whose name the Bonds are reregistered. Section 4. Redemption of Bonds Prior to Maturity. (a) Optional Redemption. The Bonds, if any, specified in the Sale Certificate shall be subject to redemption prior to maturity, at the option of the City, as a whole or in part in integral multiples of $5,000, and if in part in such order of maturities as the City shall determine and by lot within a maturity, on such dates, if any, and at such prices, as set forth in the Sale Certificate. (b) Mandatory Sinking Fund Redemption. All or any principal amount of the Bonds maybe subject to mandatory sinking fund redemption by lot on December 1 of the years and in the principal amounts specified in the Sale Certificate, at a redemption price equal to the principal amount thereof (with no redemption premium), plus accrued interest to the redemption date. At its option, to be exercised on or before the forty-fifth day next preceding each sinking fund redemption date, the City may (i) deliver to the Paying Agent for cancellation any Bonds with the same maturity date as the Bonds subject to such sinking fund redemption and (ii) receive a credit in respect of its sinking fund redemption obligation for any Bonds with the same maturity date as the Bonds subject to such sinking fund redemption which prior to such date have been redeemed (otherwise than through the operation of the sinking fund) and cancelled by the Paying Agent and not theretofore applied as a credit against any sinking fund redemption obligation. Each Bond so delivered or previously redeemed shall be credited by the Paying Agent at the principal amount thereof to the obligation of the City on such sinking fund redemption date, and the principal amount of Bonds to be redeemed by operation of such sinking fund on such date shall be accordingly reduced. 4843-1239-0402.5 $ (c) Redemption Procedures. Notice of any redemption of Bonds shall be given by the Paying Agent by sending a copy of such notice by first-class, postage prepaid mail, not less than 30 days prior to the redemption date, to the Owner of each Bond being redeemed. Such notice shall specify the number or numbers of the Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any Bond shall have been duly called for redemption and if, on or before the redemption date, there shall have been deposited with the Paying Agent in accordance with this Ordinance funds sufficient to pay the redemption price of such Bond on the redemption date, then such Bond shall become due and payable at such redemption date, and from and after such date interest will cease to accrue thereon. Failure to deliver any redemption notice or any defect in any redemption notice shall not affect the validity of the proceeding for the redemption of Bonds with respect to which such failure or defect did not occur. Any Bond redeemed prior to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled. Section 5. Creation of Bond Account. There is hereby created the "City of Aspen, Colorado, General Obligation Electric Utility Bonds Series 2008 Bond Account" (the "Bond Account"). Moneys on deposit in the Bond Account shall be applied solely to the payment of the principal of and interest on the Bonds and for no other purpose until the Bonds, including principal and interest, are fully paid, satisfied and discharged. Section 6. Delivery of Bonds and Application of Bond Proceeds. Upon payment to the City of the purchase price of the Bonds in accordance with the Bond Purchase Agreement, the Bonds shall be delivered to or as directed by the Underwriter and the proceeds received by the City from the sale of the Bonds shall be applied as a supplemental appropriation by the City for the payment of costs of issuance of the Bonds and as follows: (a) to the Bond Account, for accrued interest (if any) on the Bonds, the amount (if any) designated in the Sale Certificate; and (b) the remainder shall be applied by the City to costs of the Project. Section 7. Security for the Bonds. (a) General Obligations. The Bonds shall be general obligations of the City, payable from the ad valorem property taxes levied by the City pursuant to this Section, other moneys transferred to or deposited into the Bond Account pursuant to this Ordinance and other moneys made available for the payment of the principal of, premium, if any, and interest on the Bonds pursuant to subsection (f) of this Section, in addition to the Available Electric Utility Fees transferred to the Bond Account as provided in subsection (b) of this Section. The full faith and credit of the City are pledged for the punctual payment of the principal of, premium, if any, and interest on the Bonds. (b) Transfers from Available Electric Utility Fees. On or before each date on which the City is required to deposit amounts with the Paying Agent pursuant to subsection (h) of this Section, the City shall transfer Available Electric Utility Fees (as determined by the City on the date of such transfer) to the Bond Account in an amount equal to the lesser o£ (i) the principal of, premium, if any, and interest on the Bonds due to be so deposited on such date, less any other moneys then on deposit in the Bond 4843-1239-0402.5 9 Account to be transferred to the Paying Agent on such date; or (ii) the total of all Available Electric Utility Fees then on deposit in the Electric Funds. (c) Levy of Ad Valorem Taxes. For the purpose of paying the principal of, premium, if any, and interest on the Bonds when due, respectively, the City Council shall, before such time provided for by law for levying other City taxes, annually determine a rate of levy for general ad valorem taxes, without limitation as to rate or amount, on all of the taxable property within the City, that will be sufficient, when combined with amounts then on deposit in the Bond Account and the amounts projected to be deposited to the Bond Account in the immediately succeeding calendar year from Available Electric Utility Fees pursuant to subsection (b) of this Section, and from other moneys pursuant to subsection (f) of this Section, to pay the principal of, premium, if any, and interest on the Bonds when due, respectively, whether at maturity or upon earlier redemption, in the immediately succeeding calendar year. Annually, at the time of certification of the general ad valorem taxes pursuant to this subsection, the City Council shall make specific findings with respect to the Available Electric Utility Fees projected for the immediately succeeding calendar yeaz and all other amounts described in the preceding sentence projected to be transferred to the Bond Account in the immediately succeeding calendar year or then on deposit therein. The City Council shall, in certifying annual levies for general ad valorem taxes, take into account the maturing indebtedness of the Bonds for the ensuing year, deficiencies and defaults of prior years and any reimbursement to be made pursuant to subsections (d) or (f) of this Section and shall make ample provision for the payment thereof The general ad valorem taxes levied pursuant to this subsection, when collected, shall be deposited into the Bond Account. (d) Covenant Upon Deficiency in Bond Account. Notwithstanding anything else contained herein, the City hereby irrevocably covenants and agrees that, in the event that amounts on deposit in the Bond Account on any date on which the City is required to deposit amounts with the Paying Agent pursuant to subsection (h) of this Section is less than the amount sufficient to pay the principal of premium, if any, and interest on the Bonds on the corresponding Interest Payment Date, the City Council shall immediately transfer previously appropriated moneys in the amount of such deficiency from the general fund or any other legally available fund of the City to the Bond Account for the payment of such amounts, and shall promptly pass and adopt supplemental or emergency ordinances or resolutions as aze required to effectuate such transfer and use. Thereafter, such appropriations and transfers shall continue to be made in such amounts and with sufficient frequency to assure that the moneys on deposit in the Bond Account shall be sufficient to pay the principal of, premium, if any, and interest on the Bonds when due. Upon the next succeeding levy of ad valorem property taxes for the Bonds pursuant to subsection (c) of this Section, the taxes levied pursuant thereto shall include amounts sufficient to reimburse the fund from which amounts were transferred pursuant to this subsection and such reimbursement shall be made and appropriation made therefor upon the collection of such taxes. (e) Levy of.4dditional Ad i~alorem Taxes. If the moneys on deposit in the Bond Account, including, but not limited to, moneys of the City deposited therein pursuant to subsections (b), (d) and (f) of this Section, are not sufficient to pay punctually 4843-1239-0402.5 ] Q the annual installments on the contracts or bonds of the City, and interest thereon, and to pay defaults and deficiencies, the City Council shall make such additional levies of taxes as may be necessary for such purposes, and such taxes shall be made and continue to be levied until the indebtedness is fully paid. The general ad valorem taxes levied pursuant to this subsection, when collected, shall be deposited into the Bond Account. (f) Use or Advance of Other Legally Available Moneys. Nothing herein shall be interpreted to prohibit or limit the ability of the City to use legally available funds of the City other than moneys required by this Ordinance to be transferred to or deposited into the Bond Account to pay all or any portion of the principal of, premium, if any, or interest on the Bonds. If and to the extent such other legally available moneys are used to pay the principal of, premium, if any, or interest on the Bonds, the City may, but shall not be required to, (i) reduce the amount of taxes levied for such purpose pursuant to subsection (c) of this Section or (ii) use proceeds of taxes levied pursuant to subsection (c) of this Section to reimburse the fund or account from which such other legally available moneys are withdrawn for the amount withdrawn from such fund or account to pay the principal of or interest on the Bonds. If the City selects alternative (ii) in the immediately preceding sentence, the taxes levied pursuant to subsection (c) of this Section shall include amounts sufficient to fund the reimbursement. (g) Appropriation and Budgeting of Proceeds of Moneys. All amounts transferred to or deposited into the Bond Account pursuant to this Ordinance are hereby appropriated for that purpose, and all amounts required to pay the principal of and interest on the Bonds when due, respectively, in each year shall be included in the annual budget and appropriation ordinance to be adopted and passed by the City Council for such year. (h) Deposit of Moneys to Pay Bonds with, and Payment of Bonds By, Paying Agent. No later than the Business Day immediately preceding each Interest Payment Date, the City, from moneys on deposit in the Bond Account or other moneys made legally available pursuant to subsection (f) of this Section, shall deposit moneys with the Paying Agent in an amount sufficient to pay the principal of premium, if any, and interest on the Bonds on such date. The Paying Agent shall use the moneys so deposited with it to pay the principal of, premium, if any, and interest on the Bonds when due. Section S. Form of Bonds. The Bonds shall be in substantially the form set forth in Appendix A hereto with such changes thereto, not inconsistent herewith, as may be necessary or desirable and approved by the officials of the City executing the same (whose manual or facsimile signatures thereon shall constitute conclusive evidence of such approval). All covenants, statements, representations and agreements contained in the Bonds are hereby approved and adopted as the covenants, statements, representations and agreements of the City. Although attached as an appendix for the convenience of the reader, Appendix A is an integral part of this Ordinance and is incorporated herein as if set forth in full in the body of this Ordinance. 4843-1239-0402.5 1 1 Section 9. Execution of Bonds. The Bonds shall be executed in the name and on behalf of the City with the manual or facsimile signature of the Mayor or Mayor Pro Tem of the City, shall bear a manual or facsimile of the seal of the City and shall be attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk, all of whom are hereby authorized and directed to prepare and execute the Bonds in accordance with the requirements hereof. Should any officer whose manual or facsimile signature appears on the Bonds cease to be such officer before delivery of any Bond, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. When the Bonds have been duly executed, the officers of the City are authorized to, and shall, deliver the Bonds to the Paying Agent for authentication. No Bond shall be secured by or entitled to the benefit of this Ordinance, or shall be valid or obligatory for any purpose, unless the certificate of authentication of the Paying Agent has been manually executed by an authorized signatory of the Paying Agent. The executed certificate of authentication of the Paying Agent upon any Bond shall be conclusive evidence, and the only competent evidence, that such Bond has been properly authenticated and delivered hereunder. Section 10. Temporary Bonds. Until Bonds in definitive form aze ready for delivery, the City may execute, and upon the request of the City, the Paying Agent shall authenticate and deliver, subject to the provisions, limitations and conditions set forth herein, one or more Bonds in temporary form, whether printed, typewritten, lithographed or otherwise produced, substantially in the forms of the definitive Bonds, with appropriate omissions, variations and insertions, and in authorized denominations. Until exchanged for Bonds in definitive form such Bonds in temporary form shall be entitled to the benefits and security of this Ordinance. Upon the presentation and surrender of any Bond in temporary form, the City shall, without unreasonable delay, prepare, execute and deliver to the Paying Agent and the Paying Agent shall authenticate and deliver, in exchange therefor, a Bond or Bonds of the same series in definitive form. Such exchange shall be made by the Paying Agent without making any charge therefor to the registered owner of such Bond in temporary form. Section 11. Registration of Bonds in Registration Books Maintained by Paying Agent. The Paying Agent shall maintain registration books in which the ownership, transfer and exchange of Bonds shall be recorded. The person in whose name any Bond shall be registered on such registration book shall be deemed to be the absolute owner thereof for all purposes, whether or not payment on any Bond shall be overdue, and neither the City nor the Paying Agent shall be affected by any notice or other information to the contrary. Section 12. Transfer and Exchange of Bonds. The Bonds may be transferred or exchanged at the principal office of the Paying Agent in the city identified in the definition of Paying Agent in the Section hereof entitled "Definitions," for a like aggregate principal amount of Bonds of other authorized denominations of the same type, maturity and interest rate, upon payment by the transferee of a transfer fee, any tax or governmental charge required to be paid with respect to such transfer or exchange and any cost of printing bonds in connection therewith. Upon surrender for transfer of any Bond, duly endorsed for transfer or accompanied by an assignment duly executed by the Owner or his or her attorney duly authorized in writing, the City shall execute and the Paying Agent shall authenticate and deliver in the name of the transferee a new Bond. Notwithstanding any other provision hereof, the Paying Agent shall not be required to transfer any Bond (a) which is scheduled to be redeemed in whole or in part 4843-1239-0402.5 12 between the Business Day immediately preceding the mailing of the notice of redemption and the redemption date or (b) between the Record Date for any Interest Payment Date for such Bond and such Interest Payment Date. Section 13. Replacement of Lost, Destroyed or Stolen Bonds. If any Bond shall become lost, apparently destroyed, stolen or wrongfully taken, it maybe replaced in the form and tenor of the lost, destroyed, stolen or taken Bond and the City shall execute and the Paying Agent shall authenticate and deliver a replacement Bond upon the Owner famishing, to the satisfaction of the Paying Agent: (i) proof of ownership (which shall be shown by the registration books of the Paying Agent), (ii) proof of loss, destruction or theft, (iii) an indemnity to the City and the Paying Agent with respect to the Bond lost, destroyed or taken, and (iv) payment of the cost of preparing and executing the new Bond. Section 14. Investments. Moneys on deposit in the Bond Account and the Rebate Account and any moneys held by the Paying Agent with respect to the Bonds shall be invested in Permitted Investments, provided that the investment of such moneys shall be subject to any applicable restrictions set forth in the Tax Letter of Instructions and the tax compliance certificate delivered by the City in connection with the issuance of the Bonds that describes the City's expectations regarding the use and investment of proceeds of the Bonds and other moneys. Except as otherwise provided above, earnings from the investment of moneys separately accounted for to pay principal of, premium, if any, and interest on the Bonds and moneys separately accounted for to pay costs of the Project shall be transferred to the Rebate Account in the amounts and at the times required to fund the Rebate Account in accordance with the Tax Letter of Instructions and all other earnings from the investment of moneys shall be retained in the account in which earned. Section 15. Various Findings, Determinations, Declarations and Covenants. The City Council, having been fully informed of and having considered all the pertinent facts and circumstances, hereby finds, determines, declares and covenants with the Owners of the Bonds that: (a) voter approval of the Ballot Question was obtained in accordance with all applicable provisions of law; (b) it is in the best interest of the City and its residents that the Bonds be authorized, sold, issued and delivered at the time, in the manner and for the purposes provided in this Ordinance; (c) the issuance of the Bonds will not cause the City to exceed its debt limit under the Charter or applicable State law; and (d) the issuance of the Bonds and all procedures undertaken incident thereto are in full compliance and conformity with all applicable requirements, provisions and limitations prescribed by the Constitution and laws of the State and the City, including the Charter, and all conditions and limitations of the Charter and other applicable law relating to the issuance of the Bonds have been satisfied. 4843-1239-0402.5 13 Section 16. Federal Income Tax Covenants. For purposes of ensuring that the interest on the Bonds is and remains excluded from gross income for federal income tax purposes, the City hereby covenants that: (a) Prohibited Actions. The City will not use or permit the use of any proceeds of the Bonds or any other funds of the City from whatever source derived, directly or indirectly, to acquire any securities or obligations and shall not take or permit to be taken any other action or actions, which would cause any Bond to bean "arbitrage bond" within the meaning of Section 148 of the Code, or would otherwise cause the interest on any Bond to be includible in gross income for federal income tax purposes. (b) Affermative Actions. The City will at all times do and perform all acts permitted by law that are necessazy in order to assure that interest paid by the City on the Bonds shall not be includible in gross income for federal income tax purposes under the Code or any other valid provision of law. In particulaz, but without limitation, the City represents, warrants and covenants to comply with the following rules unless it receives an opinion of Bond Counsel stating that such compliance is not necessary: (i) gross proceeds of the Bonds and the Project will not be used in a manner that will cause the Bonds to be considered "private activity bonds" within the meaning of the Code; (ii) the Bonds are not and will not become directly or indirectly "federally guazanteed"; and (iii) the City will timely file an Internal Revenue Service Form 8038-G with respect to the Bonds, which shall contain the information required to be filed pursuant to Section 149(e) of the Code. (c) Tax Letter of Instructions. The City will comply with the Tax Letter of Instructions delivered to it on the date of issuance of the Bonds, including but not limited by the provisions of the Tax Letter of Instructions regarding the application and investment of Bond proceeds, the use of the Project, the calculations, the deposits to the Rebate Account, the disbursements, the investments and the retention of records described in the Tax Letter of Instructions; provided that, in the event the Tax Letter of Instructions aze superseded or amended by new Tax Letter of Instructions drafted by, and accompanied by an opinion of, Bond Counse] stating that the use of the new Tax Letter of Instructions will not cause the interest on the Bonds to become includible in gross income for federal income tax purposes, the City will thereafter comply with the new Tax Letter of Instructions. (d) Rebate Account. There is hereby created the "City of Aspen, Colorado, General Obligation Electric Utility Bonds Series 2008 Rebate Account" (the "Rebate Account"). The Rebate Account shall be funded pursuant to the Section hereof entitled "Investments" in the amounts and at the times provided in the Tax Letter of Instructions from earnings from the investment of moneys on deposit in the Bond Account and moneys separately accounted for to pay costs of the Project, from earnings on moneys on deposit in the Rebate Account and other legally available moneys. (e) Designation of Bonds as Qualified Tax-Exempt Obligations. The City hereby designates the Bonds as qualified tax-exempt obligations within the meaning of Section 265(b)(3) of the Code. The City covenants that the aggregate face amount of all 4843-1239-0402.5 14 tax-exempt obligations issued by the City, together with governmental entities which derive their issuing authority from the City or are subject to substantial control by the City, shall not be more than $10,000,000 during calendar yeaz 2008. The City recognizes that such tax-exempt obligations include notes, leases, loans and warrants, as well as bonds. The City further recognizes that any bank, thrift institution or other financial institution that owns the Bonds will rely on the City's designation of the Bonds as qualified tax-exempt obligations for the purpose of avoiding the loss of 100% of any otherwise available interest deduction attributable to such institution's tax-exempt holdings. Section 17. Defeasance. Any Bond shall not be deemed to be Outstanding hereunder if it shall have been paid and cancelled or if Defeasance Securities shall have been deposited in trust for the payment thereof (whether upon or prior to the maturity of such Bond, but if such Bond is to be paid prior to maturity, the City shall have given the Paying Agent irrevocable directions to give notice of redemption as required by this Ordinance, or such notice shall have been given in accordance with this Ordinance). In computing the amount of the deposit described above, the City may include the maturing principal of and interest to be earned on the Defeasance Securities. If less than all the Bonds are to be defeased pursuant to this Section, the City, in its sole discretion, may select which of the Bonds shall be defeased. Section 18. Events of Default. Each of the following events constitutes an Event of Default: (a) Nonpayment of Principal or Interest. Failure to make any payment of principal of or interest on the Bonds when due; (b) Breach or Nonperformance of Duties. Breach by the City of any material covenant set forth herein or failure by the City to perform any material duty imposed on it hereunder and continuation of such breach or failure for a period of 60 days after receipt by the Mayor of written notice thereof from the Paying Agent or from the Owners of at least 10% of the aggregate amount of the Bond Obligation, provided that such 60 day period shall be extended so long as the City has commenced and continues a good faith effort to remedy such breach or failure; (c) Bankruptcy or Receivership. An order of decree by a court of competent jurisdiction declaring the City bankrupt under federal bankruptcy law or appointing a receiver of all or any material portion of the City's assets or revenues is entered with the consent or acquiescence of the City or is entered without the consent or acquiescence of the City but is not vacated, discharged or stayed within 30 days after it is entered. Section 19. Remedies for Events of Default. (a) Remedies. Upon the occurrence and continuance of any Event of Default, the Owners of not less than 25% of the aggregate amount of the Bond Obligation, including, without limitation, a trustee or trustees therefor, may proceed against the City to protect and to enforce the rights of the any Owners under this Ordinance by mandamus, injunction or by other suit, action or special proceedings in equity or at law, 4843-1239-0402.5 15 in any court of competent jurisdiction: (i) for the payment of interest on any installment of principal of any Bond that was not paid when due at the interest rate borne by such Bond, (ii) for the specific performance of any covenant contained herein, (iii) to enjoin any act that may be unlawful or in violation of any right of any Owner of any Bond, (iv) for any other proper legal or equitable remedy or (v) any combination of such remedies or as otherwise may be authorized by applicable law; provided, however, that acceleration of any amount not yet due on the Bonds according to their terms shall not be an available remedy. All such proceedings at law or in equity shall be instituted, had and maintained for the equal benefit of all Owners of Bonds then Outstanding. (b) Failure to Pursue Remedies Not a Release; Rights Cumulative. The failure of any Owner of any Outstanding Bond to proceed in accordance with subsection (a) of this Section shall not relieve the City of any liability for failure to perform or carry out its duties under this Ordinance. Each right or privilege of any such Owner (or trustee therefor) is in addition and is cumulative to any other right or privilege, and the exercise of any right or privilege by or on behalf of any Owner shall not be deemed a waiver of any other right or privilege of such Owner. Section 20. Amendment of Ordinance. (a) Amendments Permitted Without Notice to or Consent of Owners. The City may, without the consent of or notice to the Owners of the Bonds, adopt one or more ordinances amending or supplementing this Ordinance (which ordinances shall thereafter become a part hereof) for any one or more or all of the following purposes: (i) to cure any ambiguity or to cure, correct or supplement any defect or inconsistent provision of this Ordinance; (ii) to subject to this Ordinance or pledge to the payment of the Bonds additional revenues, properties or collateral; (iii) to institute or terminate abook-entry registration system for the Bonds or to facilitate the designation of a substitute securities depository with respect to such a system; (iv) to maintain the then existing or to secure a higher rating of the Bonds by any nationally recognized securities rating agency; or (v) to make any other change that does not materially adversely affect the Owners of the Bonds. (b) Amendments Requiring Notice to and Consent of Owners. Except for amendments permitted by subsection (a) of this Section, this Ordinance may only be amended (i) by an ordinance of the City amending or supplementing this Ordinance (which, after the consents required therefor, shall become a part hereof) and (ii) with the written consent of the Owners of at least 66 2/3% of the aggregate amount of the Bond Obligation; provided that any amendment that makes any of the following changes with respect to any Bond shall not be effective without the written consent of the Owner of 4843-1239-0402.5 16 such Bond: (A) a change in the maturity of such Bond; (B) a reduction of the interest rate on such Bond; (C) a change in the terms of redemption of such Bond; (D) a delay in the payment of principal of, premium, if any, or interest on such Bond; (E) a reduction of the Bond Obligation the consent of the Owners of which is required for an amendment to this Ordinance; or (F) the establishment of a priority or preference for the payment of any amount due with respect to any other Bond over such Bond. (c) Procedure for Noting and Obtaining Consent of Owners. Whenever the consent of an Owner or Owners of Bonds is required under subsection (b) of this Section, the City shall mail a notice to such Owner or Owners at their addresses as set forth in the registration books maintained by the Paying Agent and to the Underwriter, which notice shall briefly describe the proposed amendment and state that a copy of the amendment is on file in the office of the City for inspection. Any consent of any Owner of any Bond obtained with respect to an amendment shall be in writing and shall be final and not subject to withdrawal, rescission or modification for a period of 60 days after it is delivered to the City unless another time period is stated for such purpose in the notice mailed pursuant to this subsection. Section 21. Appointment and Duties of Paying Agent. The Paying Agent identified in the Section hereof entitled "Definitions" is hereby appointed as paying agent, registrar and authenticating agent for the Bonds unless and until the City removes it as such and appoints a successor Paying Agent, in which event such successor shall automatically succeed to the duties of the Paying Agent hereunder and its predecessor shall immediately turn over all its records regarding the Bonds to such successor. The Paying Agent, by accepting its duties as such, agrees to perform all duties and to take all actions assigned to it hereunder in accordance with the terms hereof. Section 22. Delegation and Parameters. (a) The City Council hereby delegates to the Sale Delegate the authority to determine and set forth in the Sale Certificate: (i) the matters set forth in subsection (b) of this Section, subject to the applicable parameters set forth in subsection (c) of this Section; and (ii) any other matters that, in the judgment of the Sale Delegate, are necessary or convenient to be set forth in the Sale Certificate and are not inconsistent with the parameters set forth in subsection (c) of this Section. (b) The Sale Certificate shall set forth the following matters and other matters permitted to be set forth therein pursuant to subsection (a) of this Section, but each such matter must fall within the applicable parameters set forth in subsection (c) of this Section: (i) the date on which the Bonds will be issued; (ii) the Dated Date of the Bonds and, if not the date of delivery of the Bonds, the amount of proceeds of the Bonds constituting accrued interest to be deposited into the Bond Account; (iii) the aggregate principal amount of the Bonds; 4843-1239-0402.5 1'] (iv) the principal amount of the Bonds maturing in each year; (v) the interest payment dates; (vi) the rate of interest; (vii) the prices at which the Bonds will be sold pursuant to the Bond Purchase Agreement; (viii) the Bonds which may be redeemed at the option of the City, the dates upon which such optional redemption may occur, and the prices at which such Bonds maybe optionally redeemed; (ix) the principal amounts, if any, of Bonds subject to mandatory sinking fund redemption, and the yeazs in which such Bonds will be subject to such redemption; (c) The authority delegated to the Sale Delegate by this Section shall be subject to the following parameters: (i) in no event shall the Sale Delegate be authorized to execute the Sale Certificate and Bond Purchase Agreement after the date that is 60 days after the date of adoption of this Ordinance and in no event may the Bonds be issued after such date, absent further authorization by the City Council; (ii) the aggregate principal amount of the Bonds shall not exceed $5,500,000; (iii) the final maturity of the Bonds shall be no later than the date that is 30 years after the date of issuance of the Bonds; and (iv) the net effective interest rate on the Bonds shall not exceed 5.25%. Section 23. Authorization to Execute Documents. For a period of sixty days following the adoption of this Ordinance, the City Council authorizes the Sale Delegate to execute the Sale Certificate and to execute the Bond Purchase Agreement in accordance with the provisions hereof. The Mayor or City Clerk, or any other duly authorized officer of the City, shall, and they aze hereby authorized and directed to, take all actions necessary or appropriate to effectuate the provisions of this Ordinance, including, but not limited to, the execution of the Paying Agent Agreement, and the Continuing Disclosure Undertaking, in substantially the forms presented to this meeting of the City Council, with such changes therein, if any, not inconsistent herewith, as are approved by the City (which, once executed by the appropriate City official, shall constitute conclusive evidence of approval of the City), a "Tax Compliance Certificate" or similar certificate describing the City's expectations regarding the use and investment of proceeds of the Bonds and other moneys and the use of the Project, an Internal Revenue Service Form 8038-G with respect to the fonds, and all other documents and certificates necessary or desirable to effectuate the issuance of the Bonds, the investment of proceeds of the Bonds and the other transactions contemplated hereby. The execution by the Mayor or Mayor Pro Tem of 4843-1239-0402.5 18 the City or any other duly authorized officer of the City of any document authorized herein shall be conclusive proof of the approval by the City of the terms thereof. Section 24. Approval of Official Statement. The City Council hereby approves the distribution and use of the Preliminary Official Statement relating to the Bonds in connection with the offering of the Bonds and authorizes and directs the City staff to prepare a final Official Statement for use in connection with the sale of the Bonds in substantially the form thereof presented to the City Council at the meeting at which this Ordinance is adopted, with such changes therein, if any, not inconsistent herewith, as are approved by the City Attorney of the City. The Mayor or Mayor Pro Tem is hereby authorized and directed to execute the final Official Statement. Section 25. Application of Supplemental Act. The City Council specifically elects to apply all of the provisions of Title 11, Article 57, Part 2, C.R.S. (as previously defined, the "Supplemental Act"), to the Bonds. Section 26. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or equitable action brought with respect to any legislative acts or proceedings in connection with the authorization or issuance of the Bonds shall be commenced more than thirty days after the authorization of the Bonds. Section 27. Events Occurring on Days That Are Not Business Days. Except as otherwise specifically provided herein with respect to a particular payment, event or action, if any payment to be made hereunder or any event or action to occur hereunder which, but for this Section, is to be made or is to occur on a day that is not a Business Day, such payment, event or action shall instead be made or occur on the next succeeding day that is a Business Day with the same effect as if it was made or occurred on the date on which it was originally scheduled to be made or occur. Section 28. Ordinance Is Contract with Owners of Bonds and Irrepealable. After the Bonds have been issued, this Ordinance shall be and remain a contract between the City and the Owners of the Bonds and shall be and remain irrepealable until all amounts due with respect to the Bonds shall be fully paid, satisfied and discharged and all other obligations of the City with respect to the Bonds shall have been satisfied in the manner provided herein. Section 29. Headings, Table of Contents and Cover Page. The headings to the various sections and subsections to this Ordinance, and the cover page and table of contents that appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance. Section 30. Severability. It is hereby expressly declared that all provisions hereof and their application are intended to be and are severable. In order to implement such intent, if any provision hereof or the application thereof is determined by a court or administrative body to be invalid or unenforceable, in whole or in part, such determination shall not affect, impair or invalidate any other provision hereof or the application of the provision in question to any other situation; and if any provision hereof or the application thereof is determined by a court or 4843-1239-0402.5 19 administrative body to be valid or enforceable only if its application is limited, its application shall be limited as required to most fully implement its purpose. Section 31. Repeal of Inconsistent Ordinances. All ordinances, or parts thereof, that are in conflict with this Ordinance, are hereby repealed. Section 32. Ratification of Prior Actions. All actions heretofore taken (not inconsistent with the provisions of this Ordinance, the Charter, or the Ballot Question) by the City Council or by the officers and employees of the City directed toward the issuance of the Bonds for the purposes herein set forth are hereby ratified, approved and confirmed. Section 33. Headings, Table of Contents and Cover Page. The headings to the various sections and subsections to this Ordinance, and the cover page and table of contents that appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance. Section 34. Recordation. A true copy of this Ordinance, as adopted by the City Council of the City, shall be numbered and recorded, and its adoption and publication shall be authenticated by the signatures of the Mayor and the City Clerk and by a certification of publication. Section 35. Declaration of Emergency and Effective Date. Due to fluctuations in municipal bond prices and interest rates and due to currently favorable interest rates and due to the need to preserve public property, health, peace and safety, it is hereby declared that, in the opinion of the City Council, an emergency exists, and therefore this Ordinance shall be in full force and effect upon its passage. 4843-1239-0402.5 2~ INTRODUCED, READ AND PASSED ON FIRST READING AS AN EMERGENCY MEASURE by the City Council of the City of Aspen at its regular meeting on _, 2008, as provided by the City's Charter and applicable law. [SEAL] BY Mayor Attest: By City Clerk READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WITHIN 10 DAYS OF SUCH FINAL PASSAGE by the City Council of the City of Aspen at its special meeting on , 2008, as provided by the City's Charter and applicable law. [SEAL] BY Mayor Attest: By City Clerk Published In: Date of Publication [signature page to bond ordinance] 4843-1239-0402.5 21 v~~~ MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Sara Adams, Preservation Planner THRU: Chris Bendon, Community Development Director DATE OF MEMO: August 14, 2008 MEETING DATE: August 25, 2008 RE: 28 Smuggler Grove Road, Landmark Designation Hearing, First Reading of Ordinance -#2s, Series of 2008 (Parcel 2737- 074-00-018) Second Reading is scheduled for September 22, 2008. REQUEST OF COUNCIL: City Council is asked to determine whether the property located at 28 Smuggler Grove Road meets the applicable criteria to be deemed a local landmark and added to the Aspen Inventory of Historic Landmark Sites and Structures. BACKGROUND: ^ Project summary 28 Smuggler Grove Road is a circa 1880s miner's cabin that is not currently listed on the Aspen Inventory of Historic Sites and Structures. The City of Aspen filed a designation application without owner consent, pursuant to Ordinance No. 30, Series of 2007. The property owner put the application for Landmark Review on hold in January, 2008 after Ordinance No. 48, Series of 2007 was adopted to replace Ordinance No. 30. In July, 2008, the property owner voluntarily requested that the landmark application be reinstated and processed. The property is 7,377 square feet in size and is located in the R-15A Moderate Density zone district. ~ The property owner submitted an application for a determination of potential historic significance on July 13, 2007 under Ordinance #30, Series of 2007. Revised 8/15/2008 G:\NEW G DRIVE FOLDERS_CITY\PLANNING\Land Use Cases\Current\Current HP Cases\28 Smuggler Grove\council stuff\28SmugglerCCfirstreadingaugust2008.doc Page 1 of 3 • Lot history The subject residence was moved to the Jukati Subdivision, specifically 28 Smuggler Grove Road, in 1976. Because the subdivision was not annexed into the City until 1987, the City did not propose landmark designation during the previous historic inventory survey. The property owner submitted an application for designation, a historic lot split and conceptual approval in 2003, but withdrew the application. ^ Previous actions The Historic Preservation Commission (HPC) voted unanimously six to zero recommending that City Council designate 28 Smuggler Grove Road a local historic landmazk.2 Staff did not bring the application back to the HPC after the application was reinstated in July, 2008. HPC membership remains unchanged since the application was reviewed in November of last yeaz. Furthermore, the physical property and integrity analysis aze consistent with that presented last year. DISCUSSION: • Based on a recommendation from the Historic Preservation Commission, City Council is asked to determine if this property meets the designation criteria listed in Section 26.415.030.B of the Aspen Land Use Code, listed in Exhibit A. ^ The property owner elected to proceed with an application for a Certificate of Appropriateness from HPC fora 718 squaze foot addition and garage to the residence while the designation review is underway. The HPC found that the proposed design was consistent with the Historic Preservation Design Guidelines at the Conceptual Review level. The property must be designated in order for HPC to have purview over the proposed development. ^ The property owner decided to move forward with Landmark Review under the condition that the existing incentives are eligible for this property, as well as any additional incentives that may result from the replacement of Ordinance No. 48, Series of 2007. RECOMMENDED ACTION: "In reviewing the proposal, Staff finds that 28 Smuggler Grove Road meets the applicable review criteria fora 1880s Mining Era building and recommends that the property be designated a historic landmazk and added to the Aspen Inventory of Historic Landmark Sites and Structures." PROPOSED MOTION: "I move to approve Ordinance #ZS Series of 2008 upon First Reading, and schedule Second Reading for September 22, 2008." CITY MANAGER COMMENTS: Z Historic Preservation Commission Resolution 39, Series of 2007, see Exhibit B. Minutes from the Historic Preservation Commission meeting dated October 24, 2007, see Exhibit C. Revised 8/15/2008 G:\NEW G DRIVE FOLDERS_CITI'\PLANNINGU.and Use Cases\Cturent\Current HP Cases\28 Smuggler Grove\council stuff\28SmugglerCCfirstreadingaugust2008.doc Page 2 of 3 ATTACHMENTS: A -Review Criteria. B -Historic Preservation Commission Resolution 39, Series of 2007. C -Historic Preservation Commission minutes, October 24, 2007. D -Documentation of 28 Smuggler Grove Road. E -Integrity Assessment Score Sheet Revised 8/15/2008 G:\NEW G DRIVE FOLDERS_CITI'\PLANNING\Land Use Cases\Current\Cun•ent HP Cases\28 Smuggler Grove\council stuffl28SmugglerCCfirstreadingaugust2008.doc Page 3 of 3 ORDINANCE NO.~,S (SERIES OF 2008) AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING DESIGNATION OF THE PROPERTY LOCATED AT 28 SMUGGLER GROVE ROAD, LOT 2, OF THE NKATI SUBDIVISION, CITY OF ASPEN, COLORADO TO THE ASPEN INVENTORY OF HISTORIC LANDMARK SITES AND STRUCTURES Parcel ID #:2737-074-00-018. WHEREAS, the City of Aspen initiated Historic Landmark Review to add the property located at 28 Smuggler Grove Road, Lot 2, Jukati Subdivision, City of Aspen, Colorado, owned by Jim Byrnes, 28 Smuggler Grove Road, Aspen, to the Aspen Inventory of Historic Landmark Sites and Structures; and WHERAS, the Aspen City Council adopted Ordinance #30, Series of 2007 on July 10, 2007, authorizing the Community Development Department to initiate the designation process without owner consent when deemed appropriate as indicated in the aforementioned Ordinance; and WHEREAS, Section 26.415.050 of the Aspen Municipal Code establishes the process for Designation and states that an application for listing on the Aspen Inventory of Historic Landmark Sites and Structures shall be approved if City Council, after a recommendation from HPC and City staff, determines sufficient evidence exists that the property meets the following criteria: 26.415.030B. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The significance of the property located at 28 Smuggler Grove Road will be evaluated according to the following criteria: 1. A property is deemed significant for its antiquity, in that it is: a. More than one hundred (100) years old, b. It possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association given its age; and WHEREAS, at their regular meeting, based on a recommendation from City staff on October 24, 2007, the Historic Preservation Commission considered the application, found the application met or exceeded the review criteria and recommended City Council approval of the application by a vote of six to zero; and WHEREAS, Saza Adams, in her City Council staff report dated November 9, 2007, performed an analysis of the application based on the standazds, found that the review criteria had been met, and recommended approval; and WHEREAS, the City Council finds that the application is complete and sufficient to afford review and evaluation for approval; and WHEREAS, on November 26ei, 2007 the Aspen City Council approved Ordinance No. 51, Series 2007, on First Reading by a five to zero vote, approving the designation of 28 Smuggler Grove Road to the Aspen Inventory of Historic Sites and Structures; and, WHEREAS, the property owner requested that the application for Landmazk Review be deferred on January 21, 2008; and WHEREAS, the property owner voluntazily requested to proceed with Landmark Review of the subject property on July 1, 2008 under the condition that existing incentives be eligible to the subject property and any additional incentives that may result upon the adoption of new historic preservation regulations in replacement of Ordinance No. 48 Series of 2007; and WHEREAS, on August 25, 2008, the Aspen City Council approved Ordinance No. _, Series of 2008, on First Reading by a _ to _ vote, approving the designation of 28 Smuggler Grove Road to the Aspen Inventory of Historic Sites and Structures; and WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfaze. WHEREAS, the City Council finds that the application meets or exceeds all applicable standazds and that the addition of 28 Smuggler Grove Road as a historic landmark to the Aspen Inventory of Historic Landmazk Sites and Structures is consistent with the goals and elements of the Aspen Area Community Plan; and, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1 The City Council does hereby approve designation of the property located at, 28 Smuggler Grove Road, Lot 2, Jukati Subdivision, City of Aspen, Colorado, to the Aspen Inventory of Historic Landmazk Sites and Structures. Section 2: This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 3• That the City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance and exhibits in the office of the Pitkin County Clerk and Recorder. Section 4: That the Community Development Director is directed, upon the adoption of this ordinance, to cause the Official Zoning Map of the City of Aspen to be amended to reflect the rezoning of the subject property as herein described. Section 5• If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 6: A public hearing on the ordinance will be held on the 22"d day of September, 2008, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. Section 8• This ordinance shall become effective thirty (30) days following final passage. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 25`h day of August, 2008. Michael C. Ireland, Mayor Attest: Kathryn S. Koch, City Clerk FINALLY, adopted, passed and approved this th day of , 2008. Michael C. Ireland, Mayor Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney Exhibit A DESIGNATION OF HISTORIC PROPERTIES Section 26.415.030.B, of the City Land Use Code provides criteria for properties to be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures. 26.415.030B. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The significance of the property located at 28 Smuggler Grove will be evaluated according to the following criteria: 1. A property is deemed significant for its antiquity, in that it is: a. More than one hundred (100) years old, b. It possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association given its age; or Staff Response: At present, it is not cleaz exactly where the house was moved from. The Building permit file indicates that it was moved in 1976, and the 1904 Sanborne maps depicts a building on the corner of Deane and Monazch Streets with almost identical proportions? This assumption is based on the historic floor plan proportions of 28 Smuggler Grove being different than other modest miner's cabins in Aspen- and the Sanborn map depicts only one house in Aspen with similaz dimensions at Deane and Monarch Streets. Based on the style of the structure, and some inspection of framing back in 2003, its construction date can be placed sometime in the late 1800's. It clearly meets the first standazd for designation, Section 26.415.030.B.1.a, related to demonstration of antiquity. Staffs Integrity Assessment Score for this property is 63 (a minimum of 50 points is recommended for designation) which meets the designation criteria.3 The overall form of this house seems to be preserved. A modest one story addition has been constructed along the back, affecting the integrity of the rear wall, however, the plan form is otherwise intact. Many original window openings also appear to exist, although the sash have been replaced. The exterior siding is new. Staff finds that the designation criteria are met. ~ 1904 Sanborne Map, Exhibit D. Z Staff overlaid a copy of the 1904 sanborne map floor plan over a 2006 aerial photograph of 28 Smuggler Grove to compare proportions. 3 Integrity Assessment Score Sheet, Exhibit E. Exhibit A Revised 8/13/2008 G:\NEW G DRIVE FOLDERS_CITY\PLANNING\Land Use Cases\Cun•ent\Current HP Cases\28 Smuggler Grove\council stuffl28SmugglerGroveExhibitA.doc Page 1 of 1 A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) ,,,,_ RECOMMENDING APPROVAL OF HISTORIC DESIGNATION AND MAJOR DEVELOPMENT (CONCEPTUAL) FOR THE PROPERTY LOCATED AT 28 SMUGGLER GROVE ROAD, LOT 2 OF THE JUKATI SUBDIVISION, CITY OF ASPEN, COLORADO RESOLUTION N0.39, SERIES OF 2007 PARCEL ID: 2737-181-23-002. WHEREAS, the applicant, the City of Aspen, 130 South Galena Street, has initiated a designation application, pursuant to Ordinance 30 Series of 2007, for the property located at 28 Smuggler Grove Road, Lot 2 of the Jukati Subdivision, Aspen Township Addition, City of I Aspen, Colorado; and ~ WHEREAS, the applicant, Jim Bymes, has requested Major Development (Conceptual) for the ~ property located at 28 Smuggler Grove Road, Lot 2 of the Jukati Subdivision, Aspen Township Addition, City of Aspen, Colorado; ~~ WHEREAS, the property owner, Jim Byrnes, agreed to a concurrent designation review and Certificate of Appropriateness review by the Historic Preservation Commission of the property located at 28 Smuggler Grove Road, Lot 2 of the Jukati Subdivision, Aspen Township Addition, City of Aspen, Colorado; ~ ~ WHEREAS, Section 26.415.050 of the Aspen Municipal Code establishes the process for ~ Designation and states that an application for listing on the Aspen Inventory of Historic Landmark Sites and Swctwes shall be approved if City Council, after a recommendation from HPC, determines sufficient evidence exists that the property meets the following criteria: 26.415.0308. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures, an individual building, site, structure or object or a collection of buildings, sites, structwes or objects must have a demonstrated quality of significance. The significance of the property located at 28 Smuggler Grove Road will be evaluated according to the following criteria: 1. A property is deemed significant for its antiquity, in that it is: a. More than one hundred (100) years old, b. It possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association given its age; and, WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structwe shall be erected, constructed, enlarged, altered, repaired, relocated or improved involving a '~' designated historic property or district until plans or sufficient information have been submitted '`r RECEPTION#: 550010, 06/04/2008 at 11:03:34 AM, Exhibit B 1 OF 3, R Sf5.00 Doc Code RESOLUTION HPC Resolution 39, Series of 2007 Janice K. Vos Caudill, Pitkin County, CO to the Community Development Director and approved in accordance with the procedures established for their review;" and WHEREAS, for Conceptual Major Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project's conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the -application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, Sara Adams, in her HPC staff report dated October 24, 2007, performed an analysis of the application based on the standards, found that the review standards for designation had been met and the review standards for Major Development (Conceptual) had been met, and recommended approval; and WHEREAS, at their regular meeting on October 24, 2007, the Historic Preservation Commission considered the application, found the application for designation was consistent with the review standards and recommended approval by a vote of 6 to 0; and found the application was consistent with the review standazds and "City of Aspen Historic Preservation Design Guidelines" by a vote of 6 to 0; and, NOW, THEREFORE, BE IT RESOLVED: That HAC hereby recommends Council approve Historic Designation and recommends approval for Major Development (Conceptual) for the property located at 28 Smuggler Grove Road, Lot 2 of the Jukati Subdivision, Aspen Township Addition, City of Aspen, Colorado, as proposed with the following conditions: 1. The applicant shall distinguish the width of the historic home on the south elevation for approval at Final Review. 2. The applicant shall provide a detailed proposal, including photographs, regarding the rehabilitation of the front porch for approval at Final Review. 3. The non-historic back deck is approved for demolition. 4. The applicant shall review the west bay window in the historic portion of the residence, and the placement of new windows shall be carefully considered. Fenestration shall be reviewed at Final Review. 5. The applicant shall restudy the garage door for review at Final Review. 6. A development application for a Final Development Plan shall be submitted within one (t) year of the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant aone-time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. [signature on the following page] Exhibit B HPC Resolution 39, Series of 2007 APPROVED BY THE COMMISSION at its regular meeting on fhe 24~" of October, 2007. Approved as to Form: James R. ep ecial~ Counsel Approved as to Content: HISTORIC RE RV TION COMMISSION Michael Hoftman, Ch r ATTEST: Kat6~and, Chiet peputy ClerkChiet Deputy Clerk Exhibit B HPC Resolution 39, Series of 2007 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2007 Chairperson Michael Hoffman called the meeting to order at 5:00 p.m. Commissioners in attendance: Brian McNellis, Sarah Broughton, Nora Berko, Alison Agley, Ann Mullins and Jay Maytin. Staff present; Amy Guthrie, Historic Preservation Officer Sara Adams, Historic Preservation Planner Kathy Strickland, Chief Deputy City Clerk Jim True, Special Counsel MOTION: Ann moved to approve the minutes of Oct. 10`h; as amended by Brian; second by Nora. All in favor, motion carried. 28 Smuggler Grove, Historic Designation, Major Development- Conceptual Review, Public Hearing Affidavit of posting -Exhibit I Sara said the application is for landmark designation and for major conceptual development. The City filed the designation process through Ordinance #30 and the property owner wanted us to do a concurrent designation hearing and conceptual review knowing full well if his property wasn't designated he wouldn't really have to come before HPC. This is the first property that came out of the Ordinance #30 review. Designation criteria: Sara said this building was moved from somewhere. The floor plan is interesting and the front gable end is really long. Sara overlaid a 2006 aerial photograph over the 1904 Sanborn map and found one floor plan that matched, Exhibit B in your packet. It is on the corner of Monarch and Dean St. The cabin is an 1880's miner's cabin. Staff finds that it meets criteria A and it is over 100 years old. The integrity assessment score was 63 and there is a rear addition and some window changes. This building is a good candidate for designation. Conceptual review: Sara said the lot is 7,377 square feet and zoned R-15A which is a medium density building. After the proposed addition if it goes through they will have 2,029 square feet of un-built floor area. If they are designated they will be eligible for the 500 square foot bonus. The proposal is for aone-story modest addition and a garage. The proposal meets most of the guidelines. Exhibit C HPC Minutes, October 24, 2007 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2007 A small concern for staff is the rear elevation. It is all one plane, so from the rear it is hard to read the historic width of the building. Staff recommends that at final there be some kind of material change or undulation in the plan so you can still read the width of the historic piece. Things that can be dealt with at final are the proposal to enlarge the windows on the historic home. They are proposing double hung windows which are appropriate. Leaving the side windows as they are might be a better idea. We also think moving the existing light well is totally appropriate. The front porch is proposed to be restored because it is rotting and we will need photographs and a detailed plan at final. Staff recommends approval with two conditions: Come up with a way to distinguish the width of the historic home and a detailed proposal about the restoration of the front porch. Jim Burns, owner Jim said he will do something to distinguish the house. He said he can leave the windows the way they are. He also agreed to remove some of the design on the garage because it is too fancy. There is a deck on the back that needs to be removed because we want nicer landscaping. It is not attached to the house. We just want a little house to live in, my wife and me. I have had the house rented and manage the East Elk Creek Ranch and we are ready to move into town, Sarah asked if the west facing bay window is historic. Jim said the whole house was stripped to the frame and everything on the exterior is new. There is nothing historic on the outside. Amy said that is probably true and we should probably confirm the window sizes etc, Jim said the plan is to take everything out of the house down to the frame. Sarah said she would like to know the history of the bay window. Sarah said she is also concerned how the solar tubes will look like from the front of the house. Jim said his intent is to not have them visible from the front. Amy asked if any trees on the site are slated to be cut down during construction. Jim said there are non that will interfere with excavation. One thing that we might have a problem with is on the west side; there are foundation leaks and he will have to dig it up and put drain the in and there are a couple of trees that are pretty close. 3 Exhibit C HPC Minutes, October 24, 2007 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2007 Brian pointed out that he agreed with the assessment scoring. Chairperson, Michael Hoffman opened the public hearing. Steve Huck and Marty Ames -owners of the house across the street at 23 Smuggler. Steve said he can support getting the cars off the street which is really not a street but an easement. Jim has been sensitive in the past to lighting issues and has agreed to do so on this building. Marty Ames said we have lived here 20 years and watched this house being rebuilt 3 times. A former owner installed excessive lighting on the house and it will be nice to have that reduced. Chairperson, Michael Hoffman closed the public hearing. Ann said the shingles would look better on the new addition and the old cottage. They would hold the design together better. Alison said it would be great if we could find an old photograph, Ann said if the garage door detailing could look more like the siding of the house it would fit better. Sarah said she would be concerned about solid garage doors. Ann suggested some windows on the garage door on the east elevation. Jim said it would be fun to make the garage doors look like they are shed doors. Recommendations for final 1, 2, 3, in staff's memo. 4. The non-historic deck in the back to be approved for demolished. 5. Review the historic window placement west facing bay window. 6. Explore different options for the garage door, possibly shed doors. 7. Investigate shingles; hopefully a photograph can be located. Jim said he is fine with all of the recommendations. 4 Exhibit C HPC Minutes, October 24, 2007 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2007 MOTION: Alison moved to approve resolution #39, conceptual development for 28 Smuggler Grove with the three conditions as stated in staff's memo and the four recommendations as stated above; second by Sarah. Roll call vote: Brian, yes; Nora, yes; Alison, yes; Sarah, yes; Ann, yes; Michael, yes. Motion carried 6-0. MOTION: Michael moved to adjourn; second by Brian. All in favor, motion carried. Meeting adjourned at 8:00 p.m. Kathleen J. Strickland, Chief Deputy Clerk 5 Exhibit C HPC Minutes, October 24, 2007 85 _ _ 11 _ n 3n ~ _ 11 Ctl .. ___. 2 R 11 ~ 11 c 11 11I .~ Jl.)ii ~ n f• It ~- 11 - 5J8 ~.~5'~:J/~~~p~~ . ~ x o ? n r ~U yll "1 N ~ ~ ,~ c bOG 604. 602 FiO~%' 4 _ u g m 5' I~ - o Fx?8 ~- ° 11 F+n ail E10 , > N ~ it ~ ~ o/ z u In rpn t r w , / 1;.' '~`I, . ii_. - ~ N 11 ¢. u D ~ w n . 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INTEGRITY ASSESSMENT- 19TH CENTURY MINER'S COTTAGE Integrity is the ability of a property to convey its significance. LOCATION Location is the place where the historic property was constructed or the place where the historic event occurred. 5- The structure is in its original location. 4- The structure has been moved within the original site but still maintains the original alignment and proximity to the street. 3- The structure has been moved to another site, still within the historic Aspen townsite. 0- The structure has been moved to a location which is dissimilar to the original site. TOTAL POINTS (maximum of 5) = 3 The building has been moved, but is located in a neighborhood with other relocated historic miner's cabins. DESIGN Design is the combination of elements that create the form, plan, space, structure, and style of a property. BUILDING FORM 10-The original plan form, based on Sanborne maps or other authenticating documentation, is unaltered and there are no recent additions. 8- The structure has been expanded but the original plan form is intact and the addition(s) would meet the design guidelines. 6- The plan form has been more altered, but the addition would meet the design guidelines. 4- The structure has been expanded in a less desirable manner, but if the addition were removed, at least 50% of the building's original walls would remain. 2- The structure has been expanded and the addition overwhelms the original structure ,destroying more than 50% of the building's original walls. 0- Two historic structures have been linked together and the original character of the individual structures is significantly affected. Staff Response: 5 The plan form appears to be altered at the reaz. ROOF FORM 10-The original roof form and the original porch roof, if one existed, are unaltered. 8- The original main roof is intact but the porch roof, if one existed, has been altered. Exhibit E 1 Integrity Score Sheet 6- Dormers have been added to the structure or additions have been made that alter the roof form, but the changes would meet the design guidelines. 2- Alterations to the roof have been made in a less sensitive manner, not in conformance with the design guidelines. 0- Less than 50% of the original roof form remains. Staff Response: 9 The roof form seems largely intact. SCALE 5- The original one story scale of the building, and its character as a small cottage is intact. 4- The building has been expanded, but the ability to perceive the original size of the 3 or 4 room home, is preserved. 3- The building has been expanded- and the scale of the original portion is discernible. 0- The scale of the building has been negatively affected by a large addition, whose features do not reflect the scale or proportions of the historic structure. Staff Response: 4 The building has been expanded at the rear but the scale is discernable. FRONT PORCH 10-The front porch is not enclosed and original decorative woodwork remains, or if there was no porch historically, none has been added. 8- The front porch is enclosed but maintains an open character and some original materials. 6- The front porch is not original, but has been built in an accurate manner, per the design guidelines. 2- The front porch has been enclosed and most original materials are gone. 0- The front porch is completely gone or replaced with a porch which would not meetthe design guidelines. Staff Response: 10 The decorative woodwork of the front porch is intact. DOORS AND WINDOWS 10-The typical door and window pattern on the original house is intact- two doors off the front porch, large double hung windows in gable ends, and tall, narrow double hung windows placed "sparsely" on building walls. 8- Less than 50% of the door and window openings on the original building are new and the original door and window openings are intact. 2- Mote than 50% of the door and window openings on the original building are new and/or some of the original opening sizes have been altered. 0- Most or all of the original door and window openings have been altered. Staff Response: 6 Some of the windows have been replaced. Exhibit E 2 Integrity Score Sheet 0- All exterior materials have been removed and replaced. Staff Response: 6 The original siding has been replaced and some azchitectural details remain. DOORS AND WINDOWS 10-All or most of the original door and window units aze intact. 8- Some window and door units have been replaced, but with generally accurate reconstructions of the originals. 6- Most of the original windows have been replaced, but with generally accurate reconstructions of the originals. 0- Windows and/or doors units have been replaced with inappropriate patterns or styles. Staff Response: 0 The windows on the front fapade are not typical to miner's cabins. TOTAL POINTS (maximum of 20) = 6 WORKMANSHIP Workmanship is the physical evidence of the crafts of a particular culture or people during any given period in history or prehistory. DETAILING AND ORNAMENTATION 5- The original detailing is intact. 3- Detailing is discernible such that it contributes to an understanding of its stylistic category. 0- New detailing has been added that confuses the character of the original structure. 0- The detailing is gone. Staff Response: 3 The architectural detailing is discernible and representative of a modest miner's cabin. FINISHES 5- All exterior woodwork is painted and masonry unpainted. 4- All exterior woodwork is painted and masonry is painted. 3- Wood surfaces are stained or modern in appeazance but masonry is unpainted. 2- Wood surfaces are stained or modern in appeazance and the masonry is painted. Exhibit E 4 Integrity Score Sheet SIMPLICITY OF DESIGN 5- The overall sense of "modesty" in design and detailing on the original structure is intact. 0- New, non-historic trim and other decoration have been added to the building and have altered its character. Staff Response: 5 The modest sense of miner's residences is apparent. TOTAL POINTS (maximum of 50) = 39 • SETTING Setting is the physical environment of a historic property. PROXIMITY TO SIMILAR STRUCTURES 5- The structure is one of a set (at least three) of buildings from the same period in the immediate area. 3- The building is part of a neighborhood that has numerous remaining buildings from the same period. 0- The building is an isolated example from the period. Staff Response: 0 The building was moved to its current location and is not in close proximity to other historic 19`h century buildings. HISTORIC LANDSCAPE FEATURES 5- A number of elements of the original landscape are in place, including historic fences, walkways, plant materials and trees, and ditches. 3- Few or no elements of the original landscape are present, but the current landscape supports the historic character of the home. 0- The current landscape significantly obscures views of the structure. Staff Response: 2 The current landscape does not obscure the home TOTAL POINTS (maximum of 10) = 2 • MATERIALS Materials are the physical elements that were combined or deposited during a particular period of time and in a particular pattern or configuration to form a historic property. EXTERIOR WOODWORK 10-Most of the original woodwork, including clapboard siding, decorative shingles in gable ends, trim, fascia boards, etc. remain. 6- Original siding has been replaced, but trim and other elements remain. 4- Original siding is intact but trim or other elements have been replaced. Exhibit E 3 Integrity Score Sheet Staff Response: 5 The exterior woodwork is painted appropriately. TOTAL POINTS (maximum of 10) = 8 • ASSOCIATION Association is the direct link between an important historic event or person and a historic property. 5- The property would be generally recognizable to a person who lived in Aspen in the 19`h century. TOTAL POINTS (maximum of 5) = 5 The lack of any major alterations renders this property largely recognizable to a person who lived in Aspen in the 19a' century. • BONUS POINTS UNIQUE EXAMPLE 5-The design of the building is unique or one of a small group among the miner's cottages, (i.e.It has Italianate or Second Empire detailing.) OUTBUILDINGS 5-There are outbuildings on the property that were built during the same period as the house. MASONRY 5-Original brick chimneys and/or a stone foundation remains. PATINA/CHARACTER 5-The materials have been allowed to acquire the character of age and aze obviously weathered. Staff Response: 0 points. MAXIMUM NUMBER OF POINTS=100 (and up to 20 bonus points) MINIMUM THRESHOLD FOR DESIGNATION= 50 POINTS TOTAL SCORE FOR 28 SMUGGLER GROVE = 63 POINTS Note: Each area of the integrity analysis includes a description of the circumstances that might be found and a point assignment. However the reviewer may choose another number within the point range to more accurately reflect the specific property. Exhibit E 5 Integrity Score Sheet vii c, >~e~ra BitY flHaneY's Once Memorandum TO: Mayor and Members of Council FROM: James R. True DATE: August 18, 2008 RE: Cooper Street Settlement Attached for your consideration and review is a proposed Ordinance which, if adopted, would settle litigation with numerous owners of the property regarding the denial of the Cooper Street subdivision approval. Following settlement discussions facilitated by Judge William Neighbors of the Judicial Arbiter's Group, the negotiators believe that they have reached an agreement that will result in the dismissal of the litigation and an approval of development of the property. The settlement contemplates an increase in the residential square footage that will be allowed on the property. The owners will execute and record a deed restriction that will preserve the Lower Level, the basement of the property, to 1800 square feet of abar/restaurant or brewery. The deed restriction on the property will require that the rent on the property be no greater than 75% of the free market rental for a similaz basement space but not greater than $50 per square foot. It shall also require that the prices for food charged by the business be within the third lowest prices of all restaurants in town. The approval that allows development of the property contemplates changing part of the second floor from commercial to residential. The second floor will also contain space reserved for the first floor commercial space. Additional floor azea will be added to third and fourth floors, mainly from the conversion of deck space to provide a total residential net livable square footage of 4,527. The original size of the residence was 2,008 square feet. However, under the code in which this application was originally submitted a maximum square footage of 2,842 was available. The height of the fourth floor does not require any variances and the height is less than that of the building to the east and approximately the same as the building to the west. However, there is contemplated a variance for height for a railing on a proposed roof top deck. Roof top decks are not discouraged as they provide better views of town from the mountain than roofs with mechanical equipment. The railing will be required to be designed with minimal visual impact from the town. The attached ordinance sets forth the terms of the settlement and the approval. Attached to the ordinance and incorporated as part of the ordinance is the deed restriction that will encumber the basement. ACTION REQUESTED: A Motion to approve Ordinance No. ~, Series of 2008. CTI'Y MANAGER'S COMMENTS: cc: City Manager Community Development ORDINANCE N0.24 (SERIES OF 2008) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS, A SUBDIVISION AND CONDOMINIiJNIIZATIONFQR 508 E. COOPER AVENUE, PORTIONS OF LOTS L, M, N, BLOCK 95, CITY AND TOWNSITE OF ASPEN, CO, PITKIN COUNTY, COLORADO PARCEL N0.2737-182-24-007 WHEREAS, the Community Development Department received an application from Cooper Street Co-Tenancy, represented by Haas Land Planning, LLC, requesting approval of three (3) Growth Management Reviews, Subdivision Review, and Special Review to construct amixed-use building consisting of 3,827 squaze feet of net leasable commercial space, and one free-market residential unit; and, WHEREAS, during a duly noticed public hearing on July 12, 2007, the Historic Preservation Commission approved Resolution No. 17, Series 2007, by a five to zero (5- 0), approving Commercial Design Review for the property at 508 E. Cooper Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, the subject property is zoned CC (Commercial Core); and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended approval with conditions, of the proposed subdivision and associated land use requests; and, WHEREAS, during a duly noticed public hearing on May 1, 2007, the Planning and Zoning Commission approved Resolution No. 6, Series of 2007, by a three to one (3-1) vote, approving three (3) Growth Management Reviews for the development of a mixed- use building that includes commercial space, and free mazket housing, approving a Special Review to vary the dimensional requirements of the trash/utility/recycle azea, and recommending that City Council approve with conditions the proposed subdivision and condominiumization to construct amixed-use building consisting of one (1) free-market residential unit and 3,827 squaze feet of net leasable commercial space located on the properly at 508 E. Cooper Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, on June 25a', 2007 the Aspen City Council approved Ordinance No. 28, Series 2007, on First Reading by a four to zero (4-0) vote, approving with conditions the Subdivision and Condominiumization of 508 E. Cooper Avenue, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO; and, WHEREAS, during a duly noticed public hearing on November 12, 2007, continued from August 13, 2007, August 27, 2007, September 10, 2007, and October 9, 2007, the Aspen City Council failed to adopt a proposed ordinance to approve the application, by a two to two (2_-2) vote. Following such vote, a motion to adopt Ordinance No. 28, Series 2007 which denied the application was passed by a three to one 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 1 of 9 WHEREAS, following the denial of the application, the applicants timely filed a complaint pursuant to C.R.C.P. 106, requesting that the Court review the adoption of Ordinance 28 (Series of 2007) alleging that the City exceeded its jurisdiction and abused its discretion in denying the request of the applicant to subdivide the subject property; and, WHEREAS, the City of Aspen has defended such lawsuit and has denied that the Council's denial of the application was an abuse of discretion or that the City Council exceeded its jurisdiction; and WHEREAS, as part of the litigation, the parties entered into settlement discussions regazding the complete resolution of the litigation and the development application; and WIIEREAS, counsel for the parties have set forth the terms of the agreement to settle the litigation and all necessary development approvals herein; and WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Planning and Zoning Commission and Historic Preservation Commission with regard to the original development proposal, the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing held on ;and, WHEREAS, on August 25~', 2008, the Aspen Ciry Council approved Ordinance No. _ Series 2008, on First Reading by a _ to _ L-~ vote, approving the settlement of the litigation and the approval with conditions the Subdivision and Condomini„m;~ation of 508 E. Cooper Avenue, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO, as set forth herein; and, WHEREAS, the City Council finds that the proposed subdivision and settlement agreement meet applicable development standards and that the approval of the proposed subdivision, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1• Pursuant to the procedures and standazds set forth in Section 26 of the City of Aspen Municipal Code, the Aspen City Council hereby approves a Subdivision and Condominiumization for the property at 508 E. Cooper Ave, Portions of Lots L, M, N, Block 95, City and Townsite of Aspen, CO to construct amixed-use building consisting of one (I) free-market residential unit, and 3,827 square feet of commercial space. The use mix and dimensional requirements shall comply with the CC zone district, as described in the staff memorandum and included in the chart below. Specific square footage requirements may be amended provided compliance with the below stated requirements of the underlying CC zone district is maintained, 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 2 of 9 Minimum Lot 2,842 sq, ft. No requirement Size Minimum Lot 37 Feet No requirement Width Minimum 0 Feet No requirement Front Yard Setback Minimum Side 0 Feet No requirement Yazd Setback Minimum Reaz 0 Feet; P&Z granted Special Review to No requirement except trash/utility service area Yazd Setback vary the trash/utility/recycle azea shall be required abutting an alley, pursuant to dimensions to an alley frontage of nine Section 26.575.060 and a half (9.5) linear feet with a ten (10) foot vertical clearance, and seventeen and a half (17.5) feet in de th. Maximum Building Elevations along Cooper Ave: 42 feet for all azeas of the property, and Height First floor: 14 Feet; Second floor: 24 Feet; 46 feet for azeas setback 15 or more feet from Third floor: 34 Feet lot lines adjoining a Street right-of--way. Fourth floor: 44 Feet (setback greater than or equal to fifteen (15) feet from property line) Guardrails for Roof Deck: 47 Feet 6 Inches Mechanical Elevator overrun at 47 Feet. 26.575.020.B.1.d: Mechanical equipment shall Equipment Mechanical Equipment at 50 Feet. not exceed 5 feet above the maximum zone Height district height (in CC, the requirement it 5 feet above 46 feet} Pedestrian Cash-in-Lieu fee of $50 per square foot Pursuant to Section 26.575.030, Pedestrian Amenity S ace (284.2 s.f) _ $14,210 for this lot Amenity Floor Area Cumulative Free-Market Cumulative Maximum: Commercial: 1.5:1 Ratio (FAR) Maximum: Commercial FAR: 3:1 up to 2:1 (with 8,187 sq. ft. or 2,464sq. ft. or 1.2:1 affordable housing 2.88:1 Affordable increase) Commercial FAR: 0 sq. ft. (because located in basement) Lodging, Arts, Lodging, Arts, Cultural and Civic, Cultural and Civic, Public, Recreational, Public, Academic uses: N/A Recreational, Academic uses: 3:1 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Setilement Ordinance(JG Edits) (2).doc Page 3 of 9 Affordable Housing: Affordable N/A Housing: No limitation Free-Market Free-Market Residential: 5,213 sq. Residential: 1:1 ft. or 1.83:1 Maximum Free-Mazket Unit: 2,000 sq. ft. Residential 4,527 sq. ft. Note: The 2, 000 sq. ft. maximum permitted was Unit Size established by Ordinance 12, Series 2006. (sq. ft.) This application was submitted prior to the passage of Ordinance 12 and is, therefore, not sub'ect to the 2, 000 s . ft. maximum. Commercial Affordable Commercial (located in No requirement in zone district. Unit Size (sq. basement): 1,800 sq. ft. net leasable ft.) Free-Market Commercial [located on basement(storage), first floor, and second floor]: 1,980 sq. ft. Section 2: Plat and Agreement Pursuant to the procedures and standazds set forth in Section 26 of the City of Aspen Municipal Code, the Applicant shall record a subdivision agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days of this approval. The Subdivision Agreement shall not contain any terms that contradict or change the terms of the Conditional Settlement Agreement between the parties and the terms of this Ordinance. The Subdivision Agreement shall also include a commitment to satisfy all conditions of Planning and Zoning Commission Resolution Number 27, Series of 2006 as well as all conditions of this Ordinance. A fmal Condominium Plat may be approved and signed by the Community Development Dizector upon substantial completion of construction and prior to issuance of a Certificate of Occupancy. Section 3: Building Permit Application The Applicant may not submit a Building Permit Application until the requirements in Land Use Code Section 26.304.075, Building Permit, aze fulfilled. The building permit application shall include the following: a. A copy of the fmai Ordinance, P&Z Resolution, and HPC Resolution as modified by the Conditional Settlement Agreement and this Ordinance. b. The conditions of approval printed on the cover page of the building permit set. c. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. d. An excavation-stabilization plan, construction management plan (CMP), and drainage and soils report pursuant to the Building Department's requirements. The CMP shall include an identification of construction hauling routes, 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 4 of 9 construction phasing, and a construction traffic and parking plan for review and approval by the City Engineer and Streets Department Superintendent. The CMP shall also identify that the adjacent sidewalks will be kept open and maintained throughout construction. Staging areas will be identified in the plan, and shalt indicate that the alley shall not be closed during construction. e. Accessibility and ADA requirements shall meet adopted building code requirements. f. An approved Landscape Plan, as applicable. g. Any prior approval regarding use of the existing brick shall be modified so that applicant shall not be required to preserve the existing brick wall or use all the brick in the redevelopment of the property. h. In order to provide garage level access to the free market unit, applicant shall, subject to all applicable building codes, be entitled to create an entry through the adjacent parking garage unit to the East of the subject property, provided Applicant obtains an appropriate permanent easement through the wall, if an easement is necessary. Section 4. Buildinn Permit Review, The referral process and evaluation of the building permit application shall be completed within a reasonable time from the time a complete application is submitted. After completion of the referral process the Community Development Director shall: (i) issue a certificate of development approval compliance or (ii) advise applicant of any deficiencies within a reasonable time. The Applicant shall be reasonably responsive to City building permit plan review comments and shall submit requested corrections in a timely manner. Actions taken by applicant to remedy deficiencies, if any, shall be reviewed by the Community Development Director and a response made to applicant within a reasonable time. At such time as applicant cures all deficiencies, if any there are any, the Community Development Director shall forthwith issue a certificate of development approval compliance. After the chief building official receives a certificate of development approval compliance, the building permit shall issue within a reasonable time. Section 5: Dimensional Requirements The building as presented in the plans contained within the application dated September 2006 and as modified and amended in the Conditional Settlement Agreement and plans submitted on 2008 ("Modified Plans"), complies with the existing dimensional requirements of the Commercial Core (CC) zone district. Compliance with these requirements as modified in the Conditional Settlement Agreement will be verified by the City of Aspen Zoning Officer at the time of building permit submittal. Section 6: Trash/IJtility Service Area The trash containers shall be wildlife proof and meet the Certificate of Appropriateness regulations pertaining to size and security. The trash utility area shall have an alley frontage of nine and a half (9.5) linear feet with a ten (10) foot vertical clearance, and seventeen and a half (17.5) feet in depth, as identified in the plans approved through Special Review by the Planning and Zoning Commission on May 1, 2007. 317028_1 508 E. Cooper Ave Subdivision C:1Documents and Settings\jimt\hocal Settings\Temporary Internet Files\OLICB3\Settlement Ordinance(JG Edits) (2).doc Page 5 of 9 Section 7: Sidewalks, Curb, and Gutter The sidewalks shall be upgraded to meet the City Engineer's standards and ADA requirements. Prior to issuance of a Building Permit, or any other permit to be issued for the property, including but not limited to a demolition permit, the applicant shall provide plans that meet the approval of the City Engineer. Such improvements shall be made prior to a Certificate of Occupancy on any of the units within the development. Section 8: Affordable Housin¢ The affordable housing mitigation requirement shall be satisfied with a payment of cash-in- lieu for 12.6 square feet of affordable housing at the Category 4 level. The cash-in-lieu fee shall be $3,915.67. The cash-in-lieu shall be paid at the time of building pemvt and shall be earmarked for APCHA's use to "buy down" existing deed-restricted units or proposed deed-restricted units to lower categories. In addition, amulti-family replacement fee of $305,795.22sha1] be paid by applicant upon the issuance of a building permit. Section 9: Off Street Parkins The Applicant shall provide two (2) off street parking spaces on the adjacent property to the east to be used as pazking for 508 East Cooper. There shall be allowed a penetration through the wall of the building adjacent to the subject property to access the subject property as shown on the Modified Plans, provided Applicant obtains an appropriate permanent easement through the wall that measures 5' 1" from the property line and 18" past the width on each side of the door. Section 10: Water Department Requirements The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Each of the units within the building shall have individual water meters. Section 11: Sanitation District Requirements a. Service is contingent upon compliance with the Aspen Consolidated Sanitation District's (ACSD) rules, regulations, and specifications, which aze on file at the District office, ACSD will review the approved Drainage plans to assure that cleaz water connections (roof, foundation, perimeter, patio drains) aze not connected to the sanitary sewer system. b. On-site utility plans require approval by ACSD. c. Oil and Grease interceptors (NOT traps) are required for all food processing establishments; locations of food processing shall be identified prior to building permit; even though the commercial space will be tenant-finished, interceptors will be required at this time if food processing establishments aze anticipated for this project. d. Oil and Sand separators aze required for parking gazages and vehicle maintenance establishments. Driveway entrance drains must drain to drywells. Elevator shaft drains must flow through oil and sand interceptors. 317028 1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 6 of 9 e. Old service lines must be excavated and abandoned at the main sanitary sewer Line according to specific ACSD requirements. Below grade development may require installation of a pumping system. One tap is allowed for each building. Shazed service line agreements may be required where more than one unit is served by a single service line. Permanent improvements are prohibited in sewer easements or right of ways. £ Landscaping plans will require approval by ACSD where soft and hazd landscaping may impact public RO W or easements to be dedicated to the district. g. All ACSD fees must be paid prior to the issuance of a building permit h. The glycol heating and snow melt system (if any) must be designed to prohibit and dischazge of glycol to any portion of the public and private sanitary sewer system. Any glycol storage areas must have approved containment facilities. i. Soil Nails are not allowed in the public ROW above ASCD main sewer lines. j. Applicant's civil engineer will be required to submit existing and proposed flow calculations. Section 12: Exterior Li2htine All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. Section 13: Landscapine a. Specific excavation techniques will be required for the excavation along the back of the property. Vertical excavation will be required and over-digging is prohibited in this zone. This note must be represented on the building permit set. Utility connection will need to be designed and shown on the plan in a manner that does not encroach into tree protection zones. b. Prior to issuance of any demolition or building permits, any and all tree removal will be approved by the Pazks Department. Mitigation for removals shall be satisfied through planting of street trees adjacent to the site or through payment of cash in lieu. c. Root trenching will be required azound all potentially affected trees with excavation next to and/or under the drip line. This can be accomplished by a contracted professional tree service company or trained member of the contractor's team. This is specific to the trees located on adjacent properties. d. The Applicant is required to make improvements to the City ROW through the installation of a new Cooper Avenue street tree, evenly spaced between the two existing trees located in front of the neighboring properties. Planting in the Public Right-Of--Way (ROW) will be subject to Landscaping in the ROW requirements. Plans for the tree planting should be completed and conceptually approved prior to building permit submittal. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local SettingslTemporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 7 of 9 1. If the sidewalk is kept in tact and does not require replacement then the applicant will have to work with the Parks Department to saw cut a new tree well. 2. If the sidewalk is replaced in any manner the applicant will be required to install a structural tree trench within the tree planting zone. Trench materials, size and location will require approval of the Parks Department. The Applicant is required to install new imgation to the new tree planting and if possible to the two existing trees depending on the extent of any new tree trench. Section 14: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a pazk development impact fee prior to building permit issuance. The fee shall be calculated according to the fee schedule in Land Use Code Section 26.610.030, Fee Schedule, in place at the time of building permit Secfion 15: Pedestrian Amenity Cash-in-Lieu Fee Pursuant to Land Use Code Section 26.575.030, Pedestrian Amenity, the Applicant shall pay acash-in-lieu fee for pedestrian amenity in the amount equal to ten percent of the lot azea prior to building permit issuance. The fee is assessed based on the following calculation: Lot area = 2,842 square feet 10% of Lot Area = 284.2 squaze feet Payment = $50 x 284.2 square feet Pedestrian Amenity Cash-in-Lieu = $14,210.00 Section 16: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shall pay afee-in-lieu of land dedication prior to building permit issuance. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittal. The Applicant shall provide the mazket value of the land including site improvements, but excluding the value of structures on the site. Section 17: All of the conditions and agreements set forth in the Conditional Settlement Agreement, attached hereto as Exhibit "A", aze incorporated herein in full by this reference. Section 18• All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, aze hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. 317028_1 508 E. Cooper Ave Subdivision C:\Documents and Settings\jimt\Local Settings\Temporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 8 of 9 Section 19: This ordinance shall not affect any existing litigafion and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 20: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a sepazate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 21. Covenants. Attached hereto as Exhibit "B" are the Covenants which are hereby approved. Applicant shall cause the Covenants to be duly executed and recorded prior to the issuance of a building pernut. Section 22. Basement Ceilin¢ Heights. The minimum ceiling height for the 1,800 sq. ft. of basement deed restriction shall be twelve (12) feet, for purpose of potentially accommodating a brewery. Section 23. Public Hearine A public hearing on this Ordinance will be held on the 8~' day of September 2008 in the city Council Chambers, 130 South Galena, INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 25~' day of August, 2008. Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk 317028_1 508 E. Cooper Ave Subdivision C:1Documents and Settings\jimt\Local SettingslTemporary Internet Files\OLKB3\Settlement Ordinance(JG Edits) (2).doc Page 9 of 9 CONDITIONAL SETTLEMENT AGREEMENT This Conditional Settlement Agreement dated August _, 2008, is entered into by and among (1) the City of Aspen (the "City") and (2) JS Cooper Street LLC, a Colorado limited liability company, AP Meadows LLC, a Delaware limited liability company, Cooper Street Pier LLC, a Colorado limited liability company, RJH Cooper Street LLC, a Colorado limited liability company, RSB Cooper Street LLC, a Colorado limited liability company, RG Cooper Street LLC, a Colorado limited liability company, and NH Cooper Street LLC, a Colorado limited liability company (collectively the "Cooper Street Owners"). The parties to this Conditional Settlement Agreement shall be collectively referred to as the "Parties" or individually as a "Party." I. RECITALS 1. On November 13, 2007, the City adopted Ordinance No. 28 (Series of 2007), in which the City denied the request of the Cooper Street Owners to subdivide a proposed redeveloped building at 508 East Cooper Avenue into separate condominium interests. 2. On December 10, 2007, the Cooper Street Owners filed a C.R.C.P. 106(a)(4) Complaint in Pitkin County District Court (Case No. 07CVI86) seeking judicial review of the adoption of Ordinance No. 28 (Series of 2007) alleging that the City exceeded its jurisdiction and abused its discretion in denying the request of the Cooper Street Owners to subdivide the proposed redeveloped building at 508 East Cooper Avenue into separate condominium interests (the "C.R.C.P. 106(a)(4} Litigation"). 3. In its Answer, the City denies that it abused its discretion or exceeded its jurisdiction in adopting Ordinance No. 28 (Series of 2007). 4. The Parties have determined to compromise and settle the C.R. C.P. 106(a)(4) Litigation in an amicable manner according to the terms described in this Conditional Settlement Agreement that provides the City both acash-in-lieu affordable-housing payment of $309,710.89 and a deed restriction reserving 1,800 square feet of the 310552-1 1 redeveloped building for use as affordable commercial space if the Conditional Settlement Agreement becomes a binding agreement. 5. Each Party has determined that this Conditional Settlement Agreement is fair to all Parties and that it is in each Party's mutual interest that it become a binding agreement. II. CONDITIONAL SETTLEMENT AGREEMENT Conditions Precedent 1. Conditions Precedent to the Enforceability of This Conditional Settlement Agreement. This Conditional Settlement Agreement shall become a binding settlement agreement only if each of the three conditions precedent contained in paragraphs a., b. and c. is satisfied. If each of the three conditions precedent is satisfied, this Conditional Settlement Agreement shall automatically become a binding settlement agreement for all purposes. If any one of the three conditions precedent is not satisfied, however, this Conditional Settlement Agreement shall be null and void for all purposes. a. Condition Precedent Number One. The City Council approves an ordinance approving the request by the Cooper Street Owners to subdivide the proposed redeveloped building at 508 East Cooper Avenue into separate condominiums in the form of ordinance attached hereto as Exhibit A following all required public notices and hearings. b. Condition Precedent Number Two. No person files an appeal, petition for referendum, petition for initiative or any other pleadings, petitions or filings appealing or otherwise challenging the adoption of the ordinance attached hereto as Exhibit A within 45 days after the adoption of the ordinance. c. Condition Precedent Number Three. The Cooper Street Owners either (1) obtain an acceptable easement from the adjoining landowner(s), if necessary, providing access from the proposed redeveloped building at 508 East Cooper Avenue through the adjacent 310552-1 2 wall into the underground parking garage in the adjoining building within 30 days of the execution of the Conditional Settlement Agreement or (2) waive in writing satisfaction of Condition Precedent Number Three within 30 days of the execution of this Conditional Settlement Agreement. Terms 1. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Parties agree to take all necessary steps and to file all necessary pleadings in order to dismiss with prejudice the. C.R.C.P. 106(a)(4) Litigation, each Party to pay its own costs and attorney fees. 2. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Cooper Street Owners shall pay an affordable-housing-mitigation cash- in-lieu fee of $3,915.67 pursuant to Section 7 of the Ordinance. In addition, amulti-family replacement fee of $305,795.22 shall be paid upon the issuance of a building permit pursuant to Section 7 of the Ordinance. 3. If Condition Precedent Number One, Condition Precedent Number Two and Condition Precedent Number Three are satisfied, the Cooper Street Owners shall execute and record the "Declaration of Covenants" attached hereto as Exhibit 1 which, among other things, restricts the use of 1,800 square feet of the redeveloped building to the operation of a restaurant, on-site food service, bar or both or a brewery. The Declaration of Covenants also provides for a restriction of the amount of rent to be charged for the 1,800 square feet as affordable commercial space. 4. In the event of any dispute relating to this Conditional Settlement Agreement, including any dispute regarding the enforceability of the Conditional Settlement Agreement as a final binding agreement, the prevailing Party shall be entitled to recover its attorney fees and costs. 310552-1 3 5. This Conditional Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which, together, shall constitute one and the same Conditional Settlement Agreement. 6. The undersigned have carefully read the above and foregoing Conditional Settlement Agreement, know the contents thereof, and have signed the same on behalf of each of the Parties, after having first had the benefit of legal counsel. City of Aspen By Steve Barwick, City Manager JS Cooper Street LLC By Joshua Saslove, Manager AP Meadows LLC By Andrew V. Hecht, Manager Cooper Street Pier LLC By Andrew V. Hecht, Manager RJH Cooper Street LLC By Robert J. Hurst, Manager RSB Cooper Street LLC By Robert S. Blank, Manager RG Cooper Street LLC By Ronald Garfield, Manager NH Cooper Street LLC By Nikos Hecht, Manager 310552-1 4 RECORDAIG REQUESTED BY: WHEN RECORDED RETURN TO: Andy Hecht, Esq. Ga~eld & Hecht, P.C. 601 Eas[ Hyman Avenue Aspen, Colorado 81611 DECLARATION OF COVENANTS WHEREAS, JS COOPER STREET LLC, a Colorado limited liability company, AP MEADOWS, LLC, a Delawaze limited liability company, COOPER STREET PIER, LLC, a Colorado limited liability company, RJH COOPER STREET LLC, a Colorado Iimited liability company, RSB COOPER STREET LLC, a Colorado limited liability company. RG COOPER STREET LLC, a Colorado limited liability company, and NH COOPER STREET LLC, a Colorado limited liability company, RG AND NH COOPER STREET LLC, a Colorado limited liability company, and THE HECHT CHILDREN'S TRUST II U/T/A DATED FEBRUARY 26, 2008 (collectively, "Declarant"), aze the owners in fee simple of the following described real estate (the "Pro a ") situate in the County of Pitkin and State of Colorado, to wit: THE EASTERLY 18 INCHES OF THE SOUTHERLY 68 FEET OF LOT L, THE SOUTHERLY 70 FEET OF LOT M, ALL OF LOT N, EXCEPT THE EASTERLY 18.75 FEET, BLOCK 95, CITY AND TOWNSITE OF ASPEN TOGETHER WITH THE PARTY WALL RESERVATIONS AND RIGHTS AS SET FORTH IN DEED RECORDED AUGUST 22, 1969 IN BOOK 243 AT PAGE 279. WHEREAS, Declarant wishes to establish certain restrictions (these "Covenants") on the use and occupancy of approximately eighteen hundred (1,800) square feet to be located in the below grade space in the building (the "Buildine") intended to be constructed on the Property, as such space (the "Lower Level") is generally depicted on Exhibit "A" attached hereto and incorporated herein by this reference. NOW THEREFORE, Declazant does hereby publish and declaze that the following terms, restrictions and limitations shall be deemed to run with the land comprising the Lower Level and be binding on each owner of the Lower Level, or any portion thereof, and shall be for the benefit of and enforceable by each owner of any other portion of the Building on the Property and the City of Aspen (the "City") and Declazant does declaze that these Covenants are made in furtherance of establishing and maintaining the character and value of real estate in the City. 1. Permitted Use. The Lower Level shall be restricted to the operation of a restaurant, on site food service, baz or a brewery. Other uses allowed in the CC Zone District as a matter of right shall be permitted only upon the agreement of the Declazant and the City. Other space on the same level as the Lower Level or space any place else in the Building ("Remainin¢ Buildine Saace") shall not be subject to these Covenants and any and all lawful uses of such space shall be allowed in accordance with the permitted uses (or conditional uses where approved by the City) within the CC Zone District. In the event that at any time the Building is subjected to a condominium regime, these Covenants shall automatically be amended be so that these Covenants only affect the Lower Level. These Covenants that apply only to the ownership, operation and use of the Lower Level and shall not burden in the Remaining Building Space. Upon recordation of the condominium map, Declazant may file a supplement to these Covenants for the sole purpose of substituting the condominium unit description for the current Exhibit "A" description. 2. Rent. If at any time and from time to time following the recording of these Covenants in the real property records of Pitkin County, Declarant enters into a lease with a tenant for the Lower Level, or any part thereof, the rent for the first year after a Certificate of Occupancy is issued for the Lower Level (the "Commencement Date"} shall be an amount not to exceed Fifty Dollazs ($50.00) per square foot of leased space, plus the tenant's obligations, if any, to pay a shaze of the Common Area Maintenance Costs, as hereinafter defined (collectively the "Rent"). However, initial rent shall not be greater than 75% of the average rents paid by commercial tenants for similar spaces. The City of Aspen shall have the obligation of providing evidence of the amount of rents paid by such commercial tenants. Common Area Maintenance Costs shall mean all costs and expenses (including, without limitation, insurance costs) attributable to the ownership operation, maintenance and repair of the Building, (or in the case of a condominium, the common elements) excluding however real estate taxes. To the extent costs of the ownership, operation, maintenance and repair of the Building and/or insurance costs are included in assessments levied against the Lower Level by any unit or homeowners association to be formed, Rent shall include that portion of the assessments attributable to such costs. Common Area Maintenance shall be in an amount that is reasonable for commercial space of this size and location. Rent shall be adjusted each calendaz year after such first year by increasing the amount payable per square foot for the applicable year by a percentage equal to the lesser of (i) the percentage increase, if any, in the U.S. Consumer Price Index (the "CPI") over the CPI in effect at the Commencement Date or (ii) five percent (5%). However, at no time shall rent exceed 75% of the average rents paid by commercial tenants for similaz spaces. 3. Lease Restrictions. The lease entered between Declazant and any prospective tenant shall include a limitation on the prices of food, excluding alcoholic beverages, that may be chazged by the Tenant to its customers and the right to terminate the lease if the price limitation is violated. Such limitation shall require that the average price of food, excluding alcoholic beverages, on the Tenant's menu, measured sepazately for lunch and dinner, be within the lower one-third of the average price of food, excluding alcoholic beverages, of all of the restaurants in the City of Aspen. This calculation shall include sit-down restaurant and exclude restaurants that would be deemed fast food restaurants. The City of Aspen shall be required to provide the Declazant its calculations of the average price of food of all of the restaurants in Aspen, together with empirical data supporting such calculations, annually. The City of Aspen shall have the right to require that the Tenant comply with this restriction by providing notice to the Tenant of its violation. If the Tenant does not correct its pricing schedule within ten days of notice of violation, then the Declarant shall terminate the lease. In addition, any Lease to the Lower Level shall include a requirement that the business operate for forty-four weeks per year and that the business maintain business hours between eleven o'clock a.m. to eleven o'clock p.m, six days per week. 317016_1 4. Delivery of Copy of Lease to City. A copy of any and each lease for the Lower Level, or any part thereof, shall be provided to the City of Aspen, Attention Director of Planning or the Zoning Enforcement Officer within ten (10) business days after full execution thereof. 5. Entrance Plan. The Building shall include an entrance to the Lower Level on the west side of the Building. Such entrance shall include a stairwell and a lift that provides access to the Lower Level by persons with a physical disability, which stairwell and lift (the "Entrance Plan") shall cause the entrance to the Lower Level to be in compliance with the Americans with Disabilities Act of 1990, 42 USC §§ 12101 to 12213. The Entrance Plan shall be consistent in all material respects with the plan for the Building set forth on Exhibit A. 6. Noise. The use of the Lower Level shall at all times be restricted so that no amplified or unreasonably excessive noise is produced. Declazant's reasonable commercial discretion as to what constitutes "excessive noise" shall be binding on any tenant in the Lover Level. However, notwithstanding the above language, compliance with environmental health standazds will be deemed acceptable. 7. Si ns. The lower level business shall be allowed to place a sign on the street facing facade of the main Level. However, no sign, billboazd, decoration, poster board or advertising structure of any kind shall be placed, erected, displayed or maintained anywhere on or within the Building, including the Lower Level, until plans and specifications therefor showing the nature, shape, dimensions, color, materials, and locations for signage have been submitted to and approved in writing by Declazant, which approval shall not be unreasonably withheld. All signs shall be in compliance with the design standazds of the City of Aspen. 8. Occu~ancy. Declazant or any subsequent owner shall be permitted to leave the Lower Level vacant if, in its sole discretion, it deems any prospective tenant to be unsuitable. The Declarant agrees to utilize reasonable efforts to in good faith locate prospective tenants who aze reasonably agreeable to the Declazant. "Reasonable efforts" shall be defined as including circulating lease terms and information to local commercial real estate brokers and advertising in a newspaper of general circulation continuously during the period in which the property is vacant. If the space remains vacant for a period of six months or greater, the City shall have the right to propose tenants for consent of the Declarant, whose consent shall not be unreasonably withheld. Furthermore, Declazant (or any affiliate or Declarant) or any subsequent owner of the Lower Level shall be allowed to use and occupy the Lower Level, or any part thereof, for so long as such use complies with the applicable terms and provisions of these Covenants. 9. Enforcement. These Covenants aze for the benefit of, and are enforceable solely by, the City of Aspen as to the provisions of Pazagraphs 1, 2, 3, 4 and 8 and by any then owner of any portion of the Building. There are no other beneficiazies or persons intended to have standing to enforce these Covenants. As an example of the foregoing, if the Building consists of condominiums or any other form of sepazate ownership and if the restrictions on the level of noise from the Lower Level set forth in Pazagraph 5 hereof aze violated, any owner of any space in the Building (or any association formed for the benefit of such owners) shall have the right to enforce the provisions of such noise restrictions against the owner of and/or tenant in the Lower Level. If court proceedings are instituted in connection with the rights of enforcement and 327016 1 remedies provided in these Covenants, the prevailing party shall be entitled to recover its costs and expenses in connection therewith, including reasonable attorney's fees. Failure by any party to enforce any provision of these Covenants shall not operate as a waiver of any such provision, a waiver of the right to enforce such provision thereafter, or a waiver of any other provision of these Covenants. 10. Amendment or Revocation. Except as allowed in paragraph 1 above, these Covenants may be amended or revoked only by written instrument executed by all of the applicable benefitted parties (except the City of Aspen) and recorded in the office of the Clerk and Recorder of the County of Pitkin, State of Colorado. The consent of the City of Aspen shall be required only with respect to any material amendment, modification or revocation of the provisions of Paragraphs 1 - 8 of these Covenants. 11. Effect of Provisions of these Covenants. Each provision of these Covenants, and any agreement, promise, covenant and undertaking to comply with each provision of these Covenants: (i) shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any burdened portion of the Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument; (ii) shall, by virtue of acceptance of any right, title or interest in any portion of the burdened portion of the Property by an owner, be deemed accepted, ratified, adopted and declared as a personal covenant of such owner and shall be binding on such owner and his heirs, personal representatives, successors and assigns; and (iii} shall be deemed a real covenant by Declarant, for itself, its administrators, successors and assigns, with respect to the Property and also an equitable servitude conning in each case as a burden with and upon the title to each and every burdened portion of the Property for the benefit of the City of Aspen and the owner(s) from time to time of any other portion of the Property. In no event shall these Covenants be deemed to be for the benefit of or be enforceable by any third parry. 12. Severability. Invalidity or unenforceability of any provision of these Covenants in whole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of these Covenants, which other or part of a provision shall remain in full force and effect. 13. Captions. The captions and headings in this instrument aze for convenience only and shall not be considered in construing any provisions of these Covenants. 14. Construction. When necessary for proper construction, the masculine of any word used in these Covenants shall include the feminine or neuter gender, and the singular the plural, and vice versa. 15. Governin¢ Law. These Covenants are made and executed under and aze governed by and shall be construed in accordance with the laws of the State of Colorado. 317016_1 IN WITNESS WHEREOF, Declazant has executed these Covenants as of the _ day of 2008. JS COOPER STREET, LLC, a Colorado limited liability company By: STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 200_ by LLC. as WITNESS BY HAND AND OFFICIAL SEAL. MY COMMISSION EXPIRES: [SEAL] day of , of JS COOPER STREET, Notary Public 317016_1 VI11~ MEMORANDUM TO: Mayor Ireland and City Council ~~ THRU: Chris Bendon, Community Development Director ~ ' ~ ~~ , ~ FROM: Amy Guthrie, Historic Preservation Officer ~/VY1~V ~ RE: Second Reading of Ordinance #21, Series of 2008, 332 W. Main Street, Subdivision, PUBLIC HEARING DATE: August 25, 2008 APPLICANT /OWNER: Alice Brien. REPRESENTATIVE: John Muir Architects. LOCATION: 332 W. Main Street, Lot K and the West %i of Lot L, Block 44, City and Townsite of Aspen. CURRENT ZONING a4C USE MU, Mixed Use, including office space and a one bedroom free market unit. PROPOSED LAND USE: MU, Mixed Use, including office space, one 2 bedroom free market unit and one 3 bedroom free market unit. SUMMARY: The subject property is a designated Landmark, located in the Main Street Historic District. HPC approvals have been granted for restoration work and construction of a new addition that replaces one existing residential unit and adds another. P&Z and Council review is required because the development of a new multi-family dwelling unit is included in the definition of Subdivision. STAFF RECOMMENDATION: Staff finds that the application meets the criteria for Subdivision. P&Z reviewed this item on August 5, 2008 and recommended approval by a vote of 7-0. 1 LAND USE REQUESTS AND REVIEW PROCEDURES• The Applicant is requesting the following land use approval from City Council: • Subdivision for the creation of amulti-family dwelling unit, pursuant to the definition of Subdivision and Municipal Code Section 26.480.030.A.3. (City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). BACKGROUND: The subject property is a Queen Anne home built in 1889. It was converted to a mixed use building, containing commercial and residential space, many years ago. The applicant has received HPC approval to demolish and replace anon-historic addition at the back of the building. An existing one bedroom unit will be removed, triggering residential multi-family housing replacement, as the regulations existed when this project entered into the review process (2005). The Code requires no less than 50% of the existing unit's bedrooms and net livable area must be mitigated in the form of Affordable Housing; however, when the calculation results in a fraction of a unit (as is the case here), a cash in lieu payment may be provided. According to the Housing Guidelines, a I bedroom unit has been determined to house the equivalent of 1.75 employees. The owner of the 332 W. Main site must mitigate for % of 1 bedroom, or 1.75 x 50%= 0.875. While the Land Use Code does not specifically state the category for mitigation, the Housing Office averages the payment-in-lieu fee of Categories 2 and 3, and the average is currently $214,833. Mitigation is $214,833 x 0.875= $187,979, to be finally calculated and paid at time of building permit. Because this project involves the creation of an additional unit, above and beyond the one that currently exists, Subdivision is triggered, as is the need for a Growth Management allocation. A new unit on a landmark site is eligible for a one time Administrative exemption from Growth Management pursuant to Section 26.470.040.B.3 (This is the code citation in effect at the time of application. The same exemption is now located at Section 26.470.060.4.c.) SUBDIVISION: The Applicant is requesting approval from City Council regarding Subdivision. The Subdivision section lists actions which are exempt from review as follows (emphasis added by Staff). Based on this language, the application is not exempt from review: 26.480.030.A.3, Approved Subdivision. All subdivisions approved prior to the effective date of this chapter, except those lots contained within an approved subdivision which are intended or designed to be re-subdivided into smaller lots, condominium units, ormulti-family dwellings. The Land Use Code defines multi-family dwellings as including one or more units located within an office, retail, or service commercial building. The applicant is creating a new multi- familyresidential unit, therefore review is required. 2 Subdivision regulations state that City Council after considering a recommendation from th Subdivision Plat is attached. is the final review authority on this application, Planning and Zoning Commission. A draft STAFF RECOMMENDATION: Staff finds that the project is consistent with the goals of the AACP as well as the applicable review standards in the City Land Use Code. (See Exhibit A for findings.) Staff recommends approval of the project. Since First Reading, conditions of approval have been recommended by Parks and Engineering, related to work in the public right-of--way. Those conditions are included in the Ordinance. CITY MANAGER COMMENTS: RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to adopt Ordinance #21, Series of 2008, Subdivision at 332 W. Main Street." ATTACHMENTS: Exhibit A- Review Criteria and Staff Findings Exhibit B- Application Exhibit A SUBDIVISION REVIEW Section 26.480.050 of the City Land Use Code provides that development applications for Subdivision must comply with the following standards and requirements. A. General Requirements. 1. The proposed subdivision shall be consistent with the Aspen Area Comprehensive Plan. Staff Findin¢ The AACP supports the preservation and viable use of historic structures. Staff finds this criterion to be met. 2. The proposed subdivision shall be consistent with the character of existing land uses in the area. Staff Finding The property is located in the Mixed Use zone district, where commercial and residential uses are intended to co-exist. Staff finds this criterion to be met. 3. The proposed subdivision shall not adversely affect the future development of surrounding areas. Staff Findin¢ The proposed Subdivision will not impact the future development of the surrounding area, which is a designated historic district. The project is almost 1,000 square feet below the allowable FAR. Staff finds this criterion to be met. 4. The proposed subdivision shall be in compliance with all applicable requirements of this Title. Staff Finding The proposed Subdivision meets the applicable review standards. Staff finds this criterion to be met. B. Suitability of land for subdivision. 1. Land suitability. The proposed subdivision shall not be located on land unsuitable for development because of flooding, drainage, rock or soil creep, mudflow, rockslide, avalanche or snowslide, steep topography or any other natural hazard or other condition that will be harmful to the health, safety, or welfare of the residents in the proposed subdivision. Staff Finding The subject lot is a standard historic townsite lot, with no unusual natural hazazds present. Staff finds this criterion to be met. 4 2. Spatial pattern efficient. The proposed subdivision shall not be designed to create spatial patterns that cause inefficiencies, duplication or premature extension of public facilities and unnecessary public costs. Staff Findin¢ The layout of the Subdivision is entirely consistent with the surrounding neighborhood. Staff finds this criterion to be met. C. Improvements. The improvements set forth at Chapter 26.580 shall be provided for the proposed subdivision. These standards may be varied by special review (See, Chapter 26.430) if the following conditions have been met: Staff Finding The project does not involve the development of new parcels, streets, or other infrastructure not already in place. The applicant has not applied for condominiumization to separate ownership of units. Staff finds this criterion to be met. D. Affordable housing. A subdivision which is comprised of replacement dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.520, Replacement Housing Program. A subdivision which is comprised of new dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.470, Growth Management Quota System. Staff Finding The applicant is required to provide mitigation as described in the memo. Staff finds this criterion to be met. E. School Land Dedication. Compliance with the School Land Dedication Standards set forth at Chapter 26.630. Staff Findine The applicant will have to provide School Land Dedication fees as applicable. Staff finds this criterion to be met. F. Growth Management Approval. Subdivisian approval may only be granted to applications for which all growth management development allotments have been granted or growth management exemptions have been obtained, pursuant to Chapter 26.470. Subdivision approval may be granted to create a parcel(s) zoned Affordable Housing Planned Unit Development (AH-PUD) without first obtaining growth management approvals if the newly created parcel(s) is required to obtain such growth management approvals prior to development through a legal instrument acceptable to the City Attorney. (Ord. No. 44-2001, § 2) Staff Findine Growth Management Allocations and Exemptions are in place. Staff finds this criterion to be met. 5 ORDINANCE #21 (Series of 2008) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO APPROVING SUBDIVISION FOR THE PROPERTY LOCATED AT 332 W. MAIN STREET, LOT K AND THE WEST'/: OF LOT L, BLOCK 44, CITY AND TOWNSITE OF ASPEN WHEREAS, the applicant, Alice Brien, owner, represented by John Muir Architects, requested Subdivision approval for the property located at 332 W. Main Street, Lot K and the West %z of Lot L, Block 44„ City and Townsite of Aspen, Colorado; and WHEREAS, Section 26.480 of the Aspen Municipal Code establishes the process for Subdivision and states that an application must first be reviewed by the Planning and Zoning Commission, who makes a recommendation to City Council as to whether the application meets the review criteria; and WHEREAS, at their regulaz meeting on August 5, 2008, the Planning and Zoning Commission considered the application for Subdivision, found that the development proposal meets or exceeds all applicable development standazds and made a recommendation to Council that the land use request is consistent with the goals and objectives of the Aspen Area Community Plan, by a vote of 7-0; and, WHEREAS, Amy Guthrie, in her staff report to City Council dated August 25, 2008, performed an analysis of the application based on the standards, found that the review standazds had been met, and recommended approval; and WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1: Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, Aspen City Council hereby approves the subdivision request to create a new multi- family dwelling unit at 332 W. Main Street, Lot K and the West %z of Lot L, Block 44, City and Townsite of Aspen. Section 2: Plat and A¢reement The Applicant shall record a subdivision plat and agreement that meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days of approval if City Council provides final approval of the subdivision request. Section 3: Building Permit Aoalication The building permit application shall include the following: a. A copy of the final Ordinance and recorded P&Z Resolution. b. The conditions of approval printed on the cover page of the building permit set. Section 4: Affordable Housing, Cash-in-lieu Fee Pursuant to Land Use Code Section 26.530.040 Housing Replacement Requirements, in effect at the time of this application, the Applicant shall pay afee-in-lieu to mitigate the demolition and replacement of an existing residential multi-family housing unit. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittal. Section 5: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School lands dedication, the Applicant shall pay afee-in-lieu of land dedication prior to issuance of any building permit that triggers this fee. The City of Aspen Community Development Department shall calculate the amount due using the calculation methodology and fee schedule in affect at the time of building permit submittal. The Applicant shall provide the mazket value of the land including site improvements, but excluding the value of structures on the site. Section 6: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, if any Pazk Development Impact Fee is applicable, the fee shall be assessed at the time of building permit application submittal and paid at building permit issuance. Section 7: Landscaping in the right-of-way Landscaping in the public right of way will be required and must be reviewed and approved by the City Parks and Engineering Departments. This includes: • Street tree plantings evenly spaced a minimum of 15 to 20 foot off center. • Installation of irrigation in the right of way. • Adequate irrigation pressure and coverage, as well as possible improvements to the soil profiles: amending the current soils to improve air and water filtration. • Historic alignments and flows on irrigation ditches shall remain unchanged. Section 8: Sidewalks, Curb and Gutter Sidewalk must be provided along the 3rd Street frontage at the time of building permit. Sidewalk alignment and width must meet the current engineering standazds. Additionally the applicant shall also install new curb and gutter adjacent to the property before a certificate of occupancy is issued for any of the units within the development. Section 9: Severabili If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section l0:Existine Lineation This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 11: Public Hearin A public hearing on the ordinance was held on the 25th day of August, 2008, in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which heazing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 11th day of August, 2008. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY, adopted, passed and approved this day of , 2008. Michael C. 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Old ~d I .~1-.b I I I I I ~- I~ ® J~ ~_ II II - - -I I i II ~~ ~~ - II - T II ~LJ ~I .1^-S .~I'.4 .~~I .~I'~b ~ .~L-~OI i I I I '1 P p ~ ~ ~~ ~ n ~ _ fifi } s~3 ~6 a k m d ~ a a q8q 0 F 4 O ~ w ! " g N 0 OS rs n~ n 0 O Q ~ Q II z _ ~ 0 ~~gs~~ N `d c g g ~ Q~~~x ~~~~~~ ~_ VIII b MEMORANDUM TO: Mayor Ireland and City Council FROM: Jennifer Phelan, Community Development Deputy Direct RE: Aspen Walk (404 Park Avenue and 414 Park Circle) -Conceptual Planned Unit Development -Resolution No. 74, Series 2008 -Public Hearine (continued from August I1"'1 MEETING DATE: August 25, 2008 SPECIAL NOTE: This staff report is a supplement to the August 11`" memo and addresses the issues raised by City Council at the hearing on this application. It contains the following: • A summary of the issues raised from the last meeting with additional information provided by Staff and the Applicant; and, • Staff recommendation & motion. Also attached is the original staff report of August 11, 2008. This is attached primarily to show the development proposal, background and dimensional standards table associated with the development so that you have this information at hand. Please refer to the original August 11`h staff resort to reference the exhibits. SUMMARY AND FIRST READING QUESTIONS: At the August 11`h hearing for the Aspen Walk application, the City Council raised a number of issues that they asked to have addressed in further detail prior to the scheduled continuation of the public heazing on the application. Below, the concerns voiced by the City Council are itemized issue by issue. 11 Sales vs. rental units. As provided in the memo (Exhibit H) from APCHA employee Cindy Christensen, both rental and for-sale units aze needed in the affordable housing inventory. APCHA staff state that their experience with projects that contain both rental and for-sale units `has always been negative." The memo asserts that "renters do not have the commitment to their unit as much as the owner does and their behavior is often an order of magnitude different and frequently incompatible." 2) PUD overlay. Both 404 Pazk Avenue and 414 Park Circle are located within the Sunny Park Subdivision (Lots 3 and 5, respectively). The annexation file is only eight pages and does not provide much information. Staff will continue to investigate the history of the PUD and update council at the hearing on the 25`h. 3) Rental rates. APCHA has provided the range of rental rates for the existing affordable housing units located at 414 Park Circle. A small studio is $320.00 per month with atwo-bedroom renting for $714.00. One tenant pays a rental amount as a set percentage of income, as the tenant has lived in the building since the property was deed restricted and does not meet Category 1 income guidelines. 4) Status of existing tenants. At this point in time APCHA is committed to help tenants of 414 Pazk Circle that have rented prior to a certain date find alternative housing. Once the proposed redevelopment is complete, the prior tenants will have the right of first refusal to purchase for- sale units as long as they qualify for the unit. 51 Increase in individual net livable of free- market units to reduce overall floor area of building. The Applicants' representative has stated that they will look at the possibility of increasing individual free-market residential unit sizes to reduce the overall floor area. 6) Develonment of an innovative nazking~lan. The Applicants' representative has stated in an email to staff that "we fully believe we have met the parking requirements of the code. Moreover, every unit has at least one parking space. This location is well-served by transit." STAFF RECOMMENDATION: In reviewing the proposal, staff believes that the project provides affordable housing that is a benefit to the community; however, the size of the building is out of scale with the surrounding neighborhood and additional work should be undertaken to reduce the massing and size of the building. Again, staff recommends the following changes to the proposal: • Reducing the floor area of the proposal. • Reducing the mass of the structure by either developing multiple buildings on the site or breaking up the mass of the structure. • Provision of 100% of the off-street parking required for the affordable housing units. The resolution included with this is written in the affirmative, approving the Conceptual PUD as presented. If Council agrees with all of part of staff's previous recommendation, the resolution should be amended accordingly. Additionally, the engineering department requested that a traffic study be submitted with the Final PUD application and that improvements by the Applicant with regard to the right-of--way be consistent with the Park Avenue Pedestrian and Transportation Plan. RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE: "I move to approve Resolution No. 74, Series of 2008, approving with conditions, the Conceptual PUD for Aspen Walk." CITY MANAGER COMMENTS: ATTACHMENTS: EXHIBIT A -Review Criteria (provided with 8/11/08 and 8/25/08 staff memo) EXHIBIT B -P&Z Resolution No. 14 (Series of 2008) (provided with 8/11/08 staff memo) 2 EXHIBIT C - P&Z minutes: April 15, 2008 and May 20, 2008 (provided with 8/11/08 staff memo) EXHIBIT D -Public comment from Nina Merzbach dated May 15, 2008 and Mike McCollum/Shael Johnson dated May 20, 2008 (provided with 8/11/08 staff memo) EXHIBIT E -Supplemental Memo dated May 7, 2008 from Stan Clauson Associates, Inc. (provided with 8/11/08 staff memo) EXHIBIT F -Supplemental Renderings updated July 24, 2008 (provided with 8/11/08 staff memo) EXHIBIT G-Application (provided with 8/11/08 staff memo) Exhibit H -Memo dated August 14, 2008 from Cindy Christensen (APCHA employee) ii APPLICANT /OWNER: PFG Aspen Walk, LLC (404 Pazk Avenue) and Aspen Pitkin County Housing Authority (414 Park Circle) REPRESENTATIVE: Stan Clauson, Stan Clauson Associates, Inc. LOCATION: Lot 3, Sunny Pazk Subdivision and Lot 5, Sunny Pazk Subdivision commonly known as 404 Park Avenue and 414 Park Circle, respectively. CURRENT ZONING St USE Located in the residential multi-family (R/MF) zone district with a Planned Unit Development (PUD) overlay. 404 Park Ave. contains 14 free- market dwelling units while 414 Pazk Circle contains 11 affordable housing dwelling units. PROPOSED LAND USE: The Applicants aze requesting to develop a residential multi-family building containing sub-grade parking, 24 affordable housing units and 14 free-market residential housing units. PLANNING AND ZONING COMMISSION RECOMMENDATION: The Planning and Zoning Commission recommended Conceptual PUD approval. STAFF RECOMMENDATION: Staff recommends that the City Council require the Applicants to revise their plans prior to a final PUD Application. SUMMARY: The Applicant requests of the City Council Conceptual PUD approval. Photo of 404 Park Circle Photo of 414 Pazk Avenue GENERAL BACKGROUND This application was heard by the Planning and Zoning Commission on both April 15, 2008 and May 20, 2008 for a recommendation of Conceptual Planned Unit Development (PUD) approval. As a result of the hearings conducted by the Planning and Zoning Commission, Resolution No. 14 (Series of 2008) was passed by a four to two (4-2) vote (Exhibit B). The Planning and Zoning Commission's resolution made a recommendation of conceptual PUD approval. Changes were made to the proposed building between the two hearings and the parameters of the current proposal are included in this memo. Changes from the original application to what Council is reviewing include: Redesi¢ned Garage Entry The garage entry has been relocated further north, away from the intersection and closer to the shared property line with the Tailings Condominiums. Lowerin¢ of the Overall Height. The building height has been lowered by sinking the building further into the ground. Modified North Side of Building. The Applicant has relocated the parking garage access to the north side of the building and provided an outdoor deck above the garage entry for use by the affordable housing residents. Due to this new design, approximately 2/3rds of the building wall is now located further from the commonly shared property line with the Tailings Condominiums. Reduction in Floor Area. In the initial application provided to the Community Development department, the applicant requested a floor area ratio (FAR) of 1.56:1 (51,040 sq. ft.). Additional redesign (including greater circulation efficiencies and lowering of the building) has reduced the size. LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicants are requesting the following land use approval from the City Council to redevelop the site: • Conceptual Planned Unit Development (PUD) for the development of a site specific development plan pursuant to Land Use Code Chapter 26.445 (Gifu Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). Conceptual PUD review before the City Council is the second step in a four step review process. Once heard by the Commission, the City Council reviews the application and recommendations of the Commission at a public hearing. If approved by City Council, the Applicant may then make an application for Final PUD review before the Planning and Zoning Commission (step three). City Council will then consider the Final PUD application as the fourth and final step in the review. Additional land use approvals necessary for this project, that can be consolidated with the Final PUD application include, amongst others: Growth Management Review for the Demolition or Replacement of Multi-family Housing, Growth Management Review for the Development of Affordable Housing, and Subdivision Review. 4 PROJECT SUMMARY: The Applicants, PFG Aspen Walk, LLC and the Aspen Pitkin County Housing Authority (APCHA) have requested approval to demolish two existing buildings located at 404 Pazk Avenue (Lot 3, Sunny Pazk Subdivision) and 414 Park Circle (Lot 5, Sunny Pazk Subdivision). 404 Pazk Avenue is a 17,550 sq. ft. lot that contains fourteen (14) free-market residential multi- family dwelling units in one building. 414 Park Circle is a 15,224 sq. ft. lot containing eleven (11) deed restricted residential multi-family affordable housing units in one building. Combined, both lots contain 32,774 square feet and twenty-five (25) dwelling units. The Applicants would like to redevelop the two (2) lots with a new multi-family building containing twenty-four (24) affordable housing unit and fourteen (14) free mazket residential dwelling units for a total of thirty-eight (38) units. The properties are located in the Residential Multi-Family (R/MF) zone district with a PUD Overlay. The site is sloped with a distinct upper and lower bench demarcated by an existing retaining wall between the two lots; the new building (some of which is below grade) as shown in Figure 1, is proposed to contain: 1) A sub-grade parking gazage for the dwelling units. Vehicular access to the property and the garage will be from Park Circle on the northern end of the property adjacent to the Tailings Condominiums. The garage will provide a total of fifty-three (53) spaces; twenty-five (25) for the affordable housing units and twenty-eight (28) for the free-market residential units. 2) The next level is above and below grade (gazden level) and contains four (4) free- mazket residential units and ten (10) affordable housing units. 3) The third level is above grade on all sides and contains five (5) free market residential dwelling units and seven (7) affordable housing units. 4) The fourth level contains five (5) free-market residential dwelling units and seven (7) affordable housing units. Figure 1: Building Section of the Proposal ~.- ---------------- ..a - -- ten= r-, ~r - _ ~ __ --=~- 2 -- ---- -- -~ oa:. ----- --- - -- ~~ ._ © ._ ~- Dimensional Requirements: As mentioned previously, the existing development includes eleven (I1) affordable housing units with a total of 5,624 sq. ft. of net livable area and fourteen (14) free-market residential units with a total of 9,424 sq. ft. of net livable azea. The redevelopment would provide twenty- four (24) affordable housing units at 16,127 sq. ft. of net livable azea and fourteen (14) free mazket units at 33,239 sq. ft. of net livable azea. Table 1, below, outlines the proposed dimensional requirements for the project. The highlighted cells are the proposed standards that exceed permitted requirements for the underlying zone district. Table 1: Com a rison of Pro osed vs. Required Dimensional Kequirements Dwensional Proposed Dimens;fanal iJnderCying , ~ ~ ~ ~ It[e 1±k~c - n~ ` ~ ~e tom ~ v- e~ Regwrei~ie`uitsk T ~ $, r ° ~=_lr~r-~ r Y. '~ ~ r~.~.. -; _ . .w. I"O,~~CC , ~ ` -_ Minimum Lot 17,550 sq. ft. 15,224 sq. fr. 6,000 sq. ft. Size 32,774 sq. ft. Minimum Lot X91 Feet 60 Feet Width Minimum Lot N/A No requirement for multi-family dwellings Area/Dwelling Minimum Front 5 Feet 5 Feet Yard Setback Minimum _ =i~ljeet 3.33 Feet Alternative Front (Corner lots are required to provide one front yard Yazd Setback meeting the minimum setback and one at 1/3 the required front yard setback) Minimum Side 5 Feet 5 Feet Yard Setback Minimum Rear 5 Feet 5 Feet Yard Setback Maximum Height 32 Feet, with the exception 32 Feet of elevator shafts Floor Area Ratio 1.42:1 or 46,725 sq. ft. 1.25: 1 or 40,968 sq. ft (FAR) Minimum Off- 5~ spaces Free-Market Residential: 5* Street Parking Free-1Vlarket Residential: 28 Affordable Housing Residential: 30* spaces Atdalrle H~tsing Residentia125 spaces Notes: * An applicant is allowed to maintain an existing deficit in parking when a property is redeveloped; however, the proposed redevelopment includes fifteen (15) new affordable housing dwelling units [hat are required to meet the off-street parking standards. An in-depth review of the parking is provided later in the memo. 6 The proposal presented before the Council is to demolish the existing affordable housing units at 414 Pazk Circle (Lot 5) and the free-mazket units at 404 Pazk Ave. (Lot 3). There aze two different types of mitigation provided for the demolition of the existing affordable housing and free-mazket residential units. The following two sections aze divided to address each type of mitigation provided. Demolition or Replacement of Affordable Housing: Any existing affordable housing is required to be replaced when demolition occurs. The number, size and type of units can be changed; however, the minimum number of employees previously housed is required to be housed in the redevelopment. Table 2 shows that 16.75 employees are currently housed at 414 Pazk Circle (Lot 5) in the eleven (11) affordable housing units (eight (8) studios and three (3) two-bedroom units). With the proposed redevelopment, 16.75 employees will be housed in three (3) studios, one (1) one-bedroom and five (5) two-bedroom units for a total of nine (9) units as shown in Table 3, below. The currently existing 5,624 sq. ft. of net livable azea will be increased by 677 square feet. The existing affordable housing units are Category 1, considered "low-income level" in the Employee Housing Guidelines and will be replaced with a mix of Category 2 (lower moderate-income level) and Category 4 (middle- income level) units. Table 7• F.xistinu Affordable Housin¢ - Emnlovees Housed TTnif Type `' Uaitt Count Employees Net Livable Bedrooms Housed Area'' Provided' studio 8 10 ?* 8 (8 x 1.25) 1 bedroom 0 0 0 0 2 bedroom 3 6.75 ?* 6 (3 x 2.25) Totals 11 16.75 5,624* 14 Note: * Only a total net livable area was provided by the Applicants for the existing units. Table 3• Prnnnsed Replacement Affordable Housine for the Existins Affordable Units Unit fiype Unit Count Employees Net Livable Bedrooms Housed Area Provided studio 3 3.75 1,209 3 (3 x 1.25) 3@403 1 bedroom 1 1.75 600 1 1 @600 2 bedroom 5 11.25 4,250 ] 0 (5 x 2.25) 5@850 Totals 9 16.75 6,059 14 7 Demolition or Replacement of Multi-Family Housing For approximately twenty-seven yeazs, the City has required a certain amount of affordable housing to be developed when existing free-market multi-family residential dwelling units aze demolished. The basis for this requirement was the observation that as existing multi-family units (which had often served as housing for local working residents) were demolished and replaced, the new units no longer housed local working residents. The latest modification to this requirement occurred as result of the moratorium in 2006 and became effective in June of 2007 (Ordinance No. 14, Series of 2007). For afree-market residential multi-family project that is demolished, a developer has two mitigation options. The redevelopment proposed by the Applicants is through the 100% replacement option. • One option is to replace one hundred percent (100%) of the units (as well as bedrooms and net livable area) of the previously existing building as Resident Occupied (RO) affordable housing; the remaining development on the site may be free-mazket as long as there is no increase in the number offree-market residential units that previously existed. • A second option is to replace fifthpercent (50%) of the existing units (as well as bedrooms and net livable area) of the previously existing building as Category 4 affordable housing; the remaining development on the site may be free-mazket as long as there is no increase in the number of free-market residential units that previously existed. Additional mitigation (for the 50% replacement option) is required when the net livable area is increased from what previously existed. The existing free-market building contains fourteen (14) free-market residential units, twenty- five (25) bedrooms and 9,424 sq. ft. of net livable area (as outlined in Table 5). One hundred percent of the previous amount of units, bedrooms, and net livable area is required to be developed as affordable housing. Table 4, below, shows the proposed affordable housing to meet the 100% mitigation requirement. As submitted, the new affordable housing units will exceed the number of units (15 vs. 14), and the net livable area (10,068 sq. ft. vs. 9,424 sq. ft.) required to be replaced as mitigation due to the demolition; however, the Applicants are not replacing the required number of affordable housing bedrooms (21 vs. 25 required). The units will be deed restricted a mix of Category 2 and 4. Tahle 4~ Prnnnsed Affordable Housine Mitigation for the Free-Mazket Units Unit Type ' Unit Count Empioyees Net Livabfe T3edrooms Housed Area `' studio 2 2.5 alo 2 (2 x 1.25) 2@405 1 bedroom 8 14 4,82o g (8 x 1.75) 2@bos 2@603 2@602 2@600 2 bedroom 4 9 3,418 8 (4 x 2.25) 3@856 1 @850 8 Unit Type Unit ~onn# Employees Housed Net Livatile Area Bedrooms 3 bedroom 1 3 1.020 3 Totals 15 28.5 10,068 21 Table 5: Existine and Pronosed Free-Market Residential Component Unit Ty~xe )~_ . , ExiSfi~g . Existing ` Proposed Proposed Proposed Net LTa~ No.-of Net Livable- Units.': No of LivabloArea Bedrooms Area Bedrooms studio 4 4 ?* 0 0 0 1 bedroom 2 2 ?* 2 2 3998 2@1,999 2 bedroom 6 12 ?* 9 18 22,038 1 @2,366 1 @2,424 1 @2,450 2@2,441 2@2,493 2@2465 3 bedroom 1 3 ?* 3 9 7203 2@2,405 1 @,393 4 bedroom 1 4 ?* 0 0 0 Totals 14 25 9,424* 14 29 33,239 Notes: *Only a total net livable area was provided by the Applicants for the existing units. Affordable housing units required for mitigation are to be provided on the lot where the demolition occurs rather than on a different lot, unless the developer can show that on-site replacement would be an inappropriate solution. For example, in the past three years there have been three developments required to meet this program which have generated eight (8) affordable housing units out of fourteen (14) redeveloped units. Each of these three developments met their mitigation requirements on site. The proposal before the City Council is somewhat different in that Lot 3, rather than being redeveloped with the required affordable housing mitigation and free-market units on it, is being proposed to be considered one site (merged) with Lot 5 and the new affordable housing units provided to satisfy the multi-family replacement requirements (one hundred percent replacement) are situated on the affordable housing lot. Staff' comment: The proposed nine (9) replacement units for the existing eleven (II) affordable housing units meets the land use code requirements. The affordable housing mitigation required for the existing free market residential unfits: 100% replacement of the number of existing units, bedrooms and net livable area is not met. The proposed units are short four (4) bedrooms. 9 Additionally, the land use code requires that "each (affordable housing unit be designed such that the finished floor level of fifty (50) percent or more of the unit's Net Livable Area is at or above Natural or Finished Grade whichever is higher. " As shown in the elevations in Exhibit F, part of the fnished floor of the affordable housing units located on the ground floor will be below Natural or Finished Grade. As such they will not meet the design requirement. Pazking: With regard to the off-street parking, following is a table to explain the parking requirement for the project. As mentioned under "Notes" for Table 1, an existing deficit is allowed to be maintained when a property is redeveloped; however, this deficit is only for the previously existing number of units and any new units aze required to meet the off-street parking standazds unless granted a variation in the requirement. In a PUD, the minimum off-street parking requirement can be established as part of the Final PUD. The Applicant nroposes a parking allowance of twenty-five (25) spaces for twenty-four (241 affordable housing units which is five (5) less than what is required. Table 6 outlines the parking requirements of the project. Currently, only ten (10) spaces are provided for the eleven (11) affordable housing units and five (5) spaces for the fourteen (14) free-mazket residential dwelling units. Each lot provides fewer pazking spaces than the existing units require. The redeveloped dwelling units may maintain the original deficit in their parking and provide only ten (10) spaces for the affordable housing units and five (5) spaces For the free- market residential units; however; the new affordable housing units provided as mitigation for the demolition of the free-market units are required to be provided twenty (20) spaces. As Table 6 illustrates, based on the proposed allocation of spaces towards either affordable housing units or free market residential units, the required off-street parking for the affordable housing units is short five (5) pazking spaces. Tahle 6: Off-Street Pazkine Requirements Eaistin Develo meat = Unit Spae~ Spaces Unit; S'~eea _ ~' ~~: I)e5cit Total lt" Provided Total= -R~`"aired Frar"ritdcd New Dwelling Units 0 0 0 15 20 20 0 (AH) 414 Park Circle 11 14 10* 9 14 5 -5 (AH) or 10** 404 Pazk Ave. (FM) 14 22 5* 14 26 28 +2 or 5** Notes: * The existing number of spaces: 10 spaces for 414 Park Circle and 5 spaces for 404 Pazk Ave may be maintained when the existing units are redeveloped. ** This lower number is allowed if the existin arking deficit is carried forwazd. 10 STAFF COMMENTS' PLANNED UNIT DEVELOPMENT: Both lots currently have a PUD overlay on them. Any development (or redevelopment) is required to be reviewed and approved prior to development being allowed to commence. The purpose of a PUD, as noted in the Land Use Code "is to encourage flexibility and innovation in the development of land which: A. Promotes the purposes, goals, and objectives of the Aspen Area Community Plan. B. Achieves a more desirable development pattern, a higher quality design and site planning, a greater vaziety in the type and character of the development, and a greater compatibility with existing and future land uses than would be possible through the strict application of the underlying zone district provisions. C. Preserves natural and man-made features of historic, cultural, or scenic value. D. Promotes more efficient use of land, public facilities, and governmental services. E. Incorporates an appropriate level of public input to the planning process to ensure sensitivity to neighborhood and community goals and objectives." A PUD allows variation in the site's dimensional requirements to encourage flexibility and innovation, but does not allow vaziation in the permitted uses of the site. The Applicants are requesting to vary the allowable maximum floor azea for the site, minimum setbacks and minimum off-street parking spaces for the affordable housing component of the project. Specifically, the Applicants are requesting the following dimensional standards be approved for the project: 1) An Allowable Floor Area Ratio (FAR) of 1.42:1 or 46,725. of floor area rather than the 1.25 or 40,968 sq. ft. permitted for an increase of 5,757 sq. ft. 2) A Minimum Setback of zero feet, at this point in time is requested if a land swap with the city does not occurs. Additionally, the Applicant will need to either request a zero feet setback along the shared property line between the two lots to accommodate the new building or through subdivision review, eliminate the common lot line. 3) An Off-Street Pazking minimum for the Affordable Housing component of twenty-five spaces. The intention of Conceptual Review is to discuss the initial threshold issues relating to a large development proposal, and to evaluate the suitability of a development project on a particular parcel of land. The review enables P&Z, Council, staff, and the public to review proposed land uses, use mixes, access and infrastructure issues, and other threshold issues at a basic level before a full fledged development proposal is brought forwazd. By identifying the issues at Conceptual Review, the Applicants are able to address them as part of the Final PUD Application when more specificity in unit counts, site design, azchitecture, and other land use issues (such as new zoning, growth management, etc.) aze addressed. The Conceptual Review ~ The Applicants are requesting a 619 sq. ft. land swap with the city [o accommodate part of Midland Avenue that is located on 404 Park Avenue (Lot 3). The area the Applicants would gain is located along Park Avenue where the property line is concave in shape. 11 also allows for initial identification of questions and concerns relating to development on any given parcel. In this case, the Conceptual Review allows P&Z, Council, staff, and the public the opportunity to identify threshold issues relating to appropriate mass and scale, the appropriate amount of parking, and give the applicant direction on architectural and design characteristics as well as site planning. Lots 3 and 5 within the Sunny Park Subdivision already include a PUD Overlay, so this application would amend the PUD to establish dimensional requirements for this proposal. The dimensional requirements that are requested to be varied from the underlying zoning are the Maximum Allowable Floor Area, Minimum Setback and Minimum Off-Street Parking as noted previously. Staff is supportive of affordable housing development within Aspen and recognizes the importance and need for it within the community; however, staff also recognizes that the Aspen Area Community Plan notes that "housing should be compatible with the scale and character of the community" as well as "preserve and enhance our sense of community" with infill projects. It also states under the Housing section of the AACP that "each potential affordable housing site has an optimum development potential" and "site planning should be driven by the physical character of the land and character of the neighborhood." Finally, "Housing policy should emphasize the development of neighborhoods and community, not just units." All development projects need to be sensitive to the scale and character of the neighborhood that it is to be located within. Housing needs to be livable, not just developed with a maximum number of units. Although staff recognizes the mission of the Aspen Pitkin County Housing Authority and the benefit it sees in adding fifteen (15) additional units to their inventory and redeveloping eleven (11) of their units at no cost to the organization, the overall impacts to the neighborhood should not be ignored. Staff does have serious concerns about this PUD proposal. Currently, there is very little off-street parking available in the neighborhood. With each affordable housing unit being provided essentially one space per unit, overflow can be expected to impact the existing on-street parking currently available. The Applicants have made some revisions to the proposal through their review by the Planning and Zoning Commission but staff feels the changes still do not result in a project that fits with the scale and character of the neighborhood. By proposing to merge both lots into one parcel, the massing of the development is proposed as one building rather than broken into two modules, as would be the case if the lots are not merged. Staff believes the requested dimensional variations are not appropriate in the setting of the neighborhood. Finally, the architecture proposed (heavy timber with stone) could be in any mountain community and has the feel of a lodge rather than a neighborhood residential project. Aspen's "design history ranges from Victorian to Bauhaus, from 50's "ski instructor" to postmodern, to contemporary." Staff believes that although the neighborhood is somewhat eclectic in its style, 12 the new building should reflect the type of project it is (residential) and continue to develop opportunities to fit better with the surrounding context. As noted earlier, the Planning and Zoning Commission voted to make a recommendation of approval for the projects as it is currently presented. Staff, however, recommends the following changes to the proposal: • Reducing the floor area of the proposal. • Reducing the mass of the structure by either developing multiple buildings on the site or breaking up the mass of the structure. • Provision of 100% of the off-street parking required for the affordable housing units. The resolution included with this is written in the affirmative, approving the Conceptual PUD as presented. If Council agrees with all of part of staffs previous recommendation, the resolution will need to be amended accordingly. REFERRAL AGENCY COMMENTS: The City Engineer, Fire Marshal, Water Department, Aspen Sanitation District and the Parks Department have all reviewed the proposed application and their requirements have been included as conditions of approval when appropriate. 13 RESOLUTION N0.74 (SERIES OF 2008) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING A CONCEPTUAL PLANNED UNIT DEVELOPMENT FOR ASPEN WALK, COMMONLY DESCRIBED AS 404 PARK AVENUE AND 414 PARK CIRCLE, LEGALLY DESCRIBED AS LOT 3 AND 5, SUNNY PARK SUBDIVISION, CITY OF ASPEN, PITKIN COUNTY, COLORADO Parce[ ID: 2737-074-04-705 2737-0741-04-701 WHEREAS, the Community Development Department received an application from PFG Aspen Walk, LLC and the Aspen Pitkin County Housing Authority represented by Stan Clauson of Stan Clauson Associates, Inc., requesting the Planning and Zoning Commission recommend approval of a Conceptual Development Plan for a Planned Unit Development (PUD); and, WHEREAS, an application was submitted to consider both lots as one site to be redeveloped with amulti-family structure containing twenty-five (25) affordable housing units and fourteen (14) market rate dwelling units; and WHEREAS, the application requested that the PUD's dimensional standazds meet the underlying zone district standards of the Residential Multi-Family (RMF) zone district with the exception of Maximum Height, Maximum Allowable Floor Area, Minimum Setback and Minimum Off-Street Pazking; and WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire Protection District, and Parks Department as a result of the Development Review Committee meeting; and, WHEREAS, pursuant to Section 26.445 of the Land Use Code, Conceptual PUD approval may be reviewed by the Planning and Zoning Commission at a duly noticed public hearing after considering recommendations by the Community Development Director and relevant referral agencies; and, WHEREAS, during a regular meeting on April 15, 2008, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and continued the public hearing to May 20, 2008; and WHEREAS, on May 20, 2008, the Planning and Zoning Commission continued the public hearing on Aspen Walk, reviewed the proposed changes of the project and design which included fourteen (14) market rate dwelling units and twenty-four (24) affordable housing units and recommended City Council approve the Conceptual Planned Unit Development application by a four to two (4-2) vote, with the findings and conditions listed hereinafter; and, Page 1 of 5 WHEREAS, pursuant to Section 26.445 of the Land Use Code, Conceptual PUD approval may be reviewed by the City Council at a duly noticed public hearing after considering recommendations by the Community Development Director, Planning and Zoning Commission and relevant referral agencies; and, WHEREAS, during a regulaz meeting on August 11, 2008, the City Council opened a duly noticed public hearing to consider the project; and, WHEREAS, on August 11, 2008, the City Council at a public heazing on Aspen Walk, reviewed the project and design which included fourteen (14) mazket rate dwelling units and twenty-four (24) affordable housing units and approved the Conceptual Planned Unit Development application by a _ to L-~ vote, with the findings and conditions listed hereinafter; and, WHEREAS, Conceptual PUD approval, granted by City Council, shall only grant the ability for the applicant to submit a Final PUD and the proposed development is further subject to Final PUD review as well as additional relevant land use review approval pursuant to the Municipal Code; and, WHEREAS, the Council finds that the development review standards for Conceptual PUD have been met, as long as certain conditions aze implemented. NOW, THEREFORE BE IT RESOLVED that the Aspen City Council approves the Conceptual Planned Unit Development for the project known as Aspen Walk, subject to the conditions listed in Section 1 below. Section 1: The approval is subject to the following conditions: 1. The Final PUD application shall reflect and demonstrate compliance with the findings of the Commission and City Council, allowing for the development of amulti-family stmcture containing twenty- four (24) affordable housing units and fourteen (14) mazket rate units. Additionally, the Final PUD maybe submitted with the following dimensional standazds as requested in the application: • The Maximum Allowable Floor Area shall be no greater than 46,725 sq. ft. or a Floor Area Ratio of 1.42:1. • The Maximum Allowable Height shall be no greater than 32 (excepting elevator shafts) feet as outlined in the application. • The Minimum Off-Street Parking standard for the affordable housing units shall be 25 spaces for the 24 affordable housing units. • The Minimum Alternative Front Yazd Setback shall be 0 feet as outlined in the application or as accomplished through a land swap with the City of Aspen with respect to right-of--way. 2. The Final PUD application shall include: Page 2 of 5 a. An application for Final PUD application and the proposed development is further subject to Final PUD review as well as associated land use review approvals pursuant to the Municipal Code. Apre-application conference with a member of the Community Development Department is required prior to submitting an application. b. Delineation of all dimensional provisions to become requirements of the PUD. Section 2: Buildin¢ The final design shall meet adopted building codes and requirements if and when a building permit is submitted. Clarification and code compliance on the shared property line, exiting from the basement garage, exiting from the market rate units, existing from each story, elevator openings, accessible parking spaces, accessible entries, and the 2003 Efficient Building Program is required. Section 3: Engineerine Final design shall be compliant with all sections of the City of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department. Resolution of the proposed land swap (approximately 618 sq. ft. of public right of way for a certain amount of private property) shall be resolved prior to Final PUD application. Storm water drainage fees may be applicable to this development proposal. In order to achieve the ROW swap and accomplish the pedestrian connectivity and appropriate traffic calming for the project, the alignment of Park Ave & Park Circle intersection needs to be consistent with the Park Avenue Pedestrian and Transportation Plan. This includes shifting the roadway and installing sidewalk on the west side of Park Ave. It also includes a speed table and associated crosswalk just south of the intersection. A traffic impact analysis will be required for the project. Section 4: Affordable Housin¢ Provision of affordable housing shall be such as to provide 100% replacement for the existing free market units and the existing affordable housing units to be demolished. Section 5: Fire Mitieation All codes adopted by the Aspen Fire Protection District shall be met. This includes but is not limited to access (International Fire Code (IFC), 2003 Edition, Section 503), approved fire sprinkler and fire alarm systems (IFC, as amended, Section 903 and 907). Section 6: Public Works The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Utility placement and design shall meet adopted City of Aspen standards. Section 7: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. Page 3 of 5 Section 8: Environmental Health The state of Colorado mandates specific mitigation requirements with regazd to asbestos. Additionally, code requirements to be aware of when filing a building permit include: a prohibition on engine idling, regulation of fireplaces, fugitive dust requirements, noise abatement and pool designs. Section 9: Exterior Liehtine All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 10: School Lands Dedication and Imuact Fees The Applicant shall pay all impact fees and the school lands dedication assessed at the time of building permit application submittal and paid at building permit issuance. Section 11: Parks A formal vegetation protection plan shall be required with building permit application. Final layout of the plantings within the public right-of--way require Pazk Department approval and shall meet the comments from the Parks Department during the Development Review Committee meeting. Section 12: This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 13: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the City Council at its regular meeting on August 11, 2008. Attest: Kathryn S. Koch, City Clerk Attest: Michael C. Ireland, Mayor Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Page 4 of 5 Approved as to form: City Attorney Page 5 of 5 EXHIBIT A Chapter 26.445, PLANNED UNIT DEVELOPMENT Sec. 26.445.050. Review Criteria conceptual, £inal, consolidated and minor PUD. A development application for conceptual, final, consolidated, conceptual and final or minor PUD shall comply with the following standards and requirements. Due to the limited issues associated with conceptual reviews and properties eligible for minor PUD review, certain standazds shall not be applied as noted. The burden shall rest upon an applicant to show the reasonableness of the development application and its conformity to the standazds and procedures of this Chapter and this Title. A. Genera! requirements. 1. The proposed development shall be consistent with the Aspen Area Community Plan. Staff believes that a number of the goals in the Aspen Area Community Plan are met, but that the Applicant does not go far enough in meeting some elements of the AACP. The proposed development contributes to the overall goals of the comprehensive plan by locating development within the Urban Growth Boundary, improves transit options by installing sidewalks, is located neaz public transit, and adds affordable housing units to the City's inventory; however, a deeper review of the AACP notes a philosophy that, at this time, the project does not achieve. Development of Affordable Housing is an important component of the AACP and is contained within its own focus section within the AACP. In addition to Housing, a number of other topics: Managing Growth; Transportation; Economic Sustainability; Pazks, Open Space & the Environment; Historic Preservation; Design Quality; and Arts, Culture and Education are highlighted by their own focus sections. Under the Housing section, the intent is to "create an affordable housing environment that is appropriately scaled and distributed throughout existing and new neighborhoods....and respects our overall community concerns, as expressed in the Aspen Area Community Plan." Further in the Housing section, the Philosophy part of the section notes that "Each project should endeavor to further that mix (of income ranges and types of people) and to avoid segregation of economic and social classes by project." The sub-section also emphasizes that "housing should be compatible with the scale and character of the community..." as well as "preserve and enhance our sense of community" with regard to infill projects. Finally, the Housing section of the AACP notes that "each potential affordable housing site has an optimum development potential" and "site planning should be driven by the physical chazacter of the land and character of the neighborhood." Exhibit A -PUD Review Criteria Page 1 of I I The Applicant is providing 100% of the required Affordable Housing for the demolition and replacement of the existing fourteen free-market residential units (with the exception of the required bedroom count), which is an important step in helping the community meet the Affordable Housing goals outlined in the AACP; however, the scale of the proposed project is out of context with the neighborhood. Overall, Staff does not find this guideline to be met. 2. The proposed development shall be consistent with the character of existing land uses in the surrounding area. The proposed development is out of scale with the character of the azea. The neighborhood consists of a vaziety of single-family and multi-family homes, and while the proposal is for multi-family units, the monolithic scale of the project (since the lots are combined) is not in chazacter with the neighborhood. This neighborhood is comprised of lots that have individual structures on them which do not tend to overwhelm the neighborhood. Staff does not find this criterion to be met. 3. The proposed development shall not adversely affect the future development of the surrounding area. Staff believes that this development will not adversely affect the future development of the area. Staff finds this criterion to be met. 4. The proposed development has either been granted CMQS allotments, is exempt from CMQS, or CMQS allotments are available to accommodate the proposed development and will be considered prior to, or in combination with, final PUD development plan review. Not Applicable. The Applicant will be required to make a Growth Management Application as part of the Final PUD. Under the current proposal, the application will require growth management approval for the demolition of the existing multi-family dwelling units and the development of affordable housing. B. Establishment of Dimensional Requirements: The final PUD development plans shall establish the dimensional requirements for all properties within the PUD as described in General Provisions, Section 26.445.040, above. The dimensional requirements of the underlying zone district shall be used as a guide in determining the appropriate dimensions for the PUD. During review of the proposed dimensional requirements, compatibility with surrounding land uses and existing development patterns shall be emphasized. The PUD development plans establish dimensional requirements for all properties in a PUD. The proposed dimensional requirements are listed below: Exhibit A -PUD Review Criteria Page 2 of 11 Di~enelgiiat . - propnsed H ' find ' " den Rey>z exit : ;R uir~ ~ ~ .' ~ ~ _ -~ _ et'R ~ =-~ 4tf4 Park ~' d~~i'ar ~ _ `~ - r - _ . _ ~, ~ ~, `~nrne p w ~ ~ - -s-~- _ x. .- Minimum Lot 17,550 sq. ft. 15,224 sq. ft. 6,000 sq. ft. Size 32,774 s . ft. Minimum Lot +/- 91 Feet 60 Feet Width Minimum Lot N/A No requirement for multi-family dwellings Area/Dwellin Minimum Front 5 Feet 5 Feet Yard Setback Minimum 0 Feet 3.33 Feet Alternative Front (Corner lots are required to provide one front yard Yard Setback meeting the minimum setback and one at 1/3 the re uired front azd setback) Minimum Side 5 Feet 5 Feet Yazd Setback Minimum Rear 5 Feet 5 Feet Yazd Setback Maximum Height 32 Feet, with the exception 32 Feet (for a pazcel density equal to or greater than of elevator shafts one unit per 1,500 sq. ft. of lot area 32,774/35 =936.4 Floor Area Ratio 1.42:1 or 46,725 sq. ft. 1.25: 1 or 40,968 sq. ft. (FAR) (for a parcel density equal to or greater than one unit per 1,500 sq. ft. of lot area) Minimum Off- 53 spaces Residential -Multi-Family outside Aspen Infill Street Pazking Free-Market Residential: 28 Area: Lesser of one space per bedroom or two spaces spaces per unit Affordable Housing Free-Market Residential 5* Residential:'25 s aces Affordable Housin Residentia130* Notes: * An applicant is allowed to maintain an existing deficit in pazking when a property is redeveloped; however, the proposed redevelopment includes fourteen (15) new affordable housing dwelling units that are required to meet the off-street pazking standazds. 1. The proposed dimensional requirements for the subject property are appropriate and compatible with the following influences on the property: a. The character of, and compatibility with, existing and expected future land uses in the surrounding area. The existing property has minimal set back requirements from the property lines. A five (5) foot setback is required and should be maintained. These aze minimal setbacks for the existing development pattern. The height variation is substantial for an area comprised of mostly 1.5 to 2.5 story buildings. The Exhibit A - PUD Review Criteria Page 3 of I 1 increase in floor area requested appeazs to be out of scale with the surrounding existing development. Finally, the deficit in parking, as outlined in the memo, will add to an already congested neighborhood. b. Natural or man-made hazards. No known hazazds exist on the lot. Staff finds this criterion to be met. c. Existing natural characteristics of the property and surrounding area such as steep slopes, waterways, shade, and significant vegetation and landforms. Most of the development proposed is within areas of the site that have already been impacted by development. Staff finds this criterion to be met. d. Existing and proposed man-made characteristics of the property and the surrounding area such as noise, traffic, transit, pedestrian circulation, parking, and historical resources. Staff recognizes that there is limited existing on-street parking in the neighborhood. Staff believes that under-parking the affordable housing component of the project will intensify the on-street parking issues as spillover will occur. Staff does not find this criterion met at this time. 2. The proposed dimensional requirements permit a scale, massing, and quantity of open space and site coverage appropriate and favorable to the character of the proposed PUD and of the surrounding area. Limited undeveloped space is currently proposed on-site. Staff recommends the Applicant look at ways to opportunities for open space. Further, Staff encourages the Applicant to examine different site planning techniques to break up the mass and height of the building. Staff does not find this criterion to be met. 3. The appropriate number of off-street parking spaces shall be established based on the following considerations: a. The probable number of cars used by those using the proposed development including any non-residential [and uses. b. The varying time periods of use, whenever joint use of common parking is proposed. c. The availability of public transit and other transportation facilities, including those for pedestrian access and/or the commitment to utilize automobile disincentive techniques in the proposed development. Exhibit A -PUD Review Criteria Page 4 of 1 I d. The proximity of the proposed development to the commercial core and general activity centers in the city. Staff recognizes that there aze currently off-street parking constraints in the neighborhood. Although transit and walking is an option, pazking of vehicles needs to be realistically accommodated. Staff does not believe that the current amount of pazking for the affordable housing component is enough. Staff does not support the current pazking proposal. 4. The maximum allowable density within a PUD may be reduced if there exists insufficient infrastructure capabilities. Specifically, the maximum density of a PUD may be reduced if a. There is not sufficient water pressure, drainage capabilities or other utilities to service the proposed development. b. There are not ,adequate roads to ensure fire protection, snow removal and road maintenance to the proposed development. Adequate public facilities exist and will be upgraded at the owner's expense. Staff finds this criterion to be not applicable. 5. The maximum allowable density within a PUD may be reduced if there exists natural hazards or critical natural site features. Specifically, the maximum density of a PUD may be reduced if.• a. The land is not suitable for the proposed development because of ground instability or the possibility of mudllow, rock falls or avalanche dangers. b. The effects of the proposed development are detrimental to the natural watershed, due to runoff, drainage, soil erosion and consequent water pollution. c. The proposed development will have a pernicious effect on air quality in the surrounding area and the City. d. The design and location of any proposed structure, road, driveway or trail in the proposed development is not compatible with the terrain or causes harmful disturbance to critical natural features of the site. At this time, Staff does not find that and significant natural hazards on the site that would necessitate a density reduction. For the most part, the proposed development is located in azeas of the site that currently contains development. Staff does not believe the proposal will involve a pernicious impact on the site's natural watershed. Staff finds this criterion to be met. 6. The maximum allowable density within a PUD may be increased if there exists a significant community goal to be achieved through such increase and the development pattern is compatible with its surrounding development patterns and with the site's physical constraints. Exhibit A -PUD Review Criteria Page 5 of 11 a. The increase in density serves one or more goals of the community as expressed in the Aspen Area Community Plan (AACP) or a specific area plan to which the property is subject. b. The site's physical capabilities can accommodate additional density and there exists no negative physical characteristics of the site, as identifted in Subparagraphs 4 and 5, above, those areas can be avoided or those characteristics mitigated c. The increase in maximum density results in a development pattern compatible with and complimentary to, the surrounding existing and expected development pattern, land uses and characteristics. Notes: a. Lot sizes for individual lots wUhin a PUD may be established at a higher or lower rate than specified in the underlying Zone District as long as, on average, the entire PUD conforms to the maximum density provisions of the respective Zone District or as otherwise established as the maximum allowable density pursuant to a final PUD Development Plan. b. The approved dimensional requirements for all lots within the PUD are required to be reflected in the final PUD development plans. While the Applicant proposes establishing the FAR for the project, no increase in the maximum density is proposed. Staff finds this criterion to be met. C. Site Design. The purpose of this standard is to ensure the PUD enhances public spaces, is complimentary to the site's natural and man-made features and the adjacent public spaces, and ensures the public's health and safety. The proposed development shall comply with the following: 1. Existing natural or man-made features of the site which are unique, provide visual interest or a speciftc reference to the past, or contribute to the identity of the town are preserved or enhanced in an appropriate manner. There are no significant natural or manmade features on the site. Staff finds this criterion to be met. 2. Structures have been clustered to appropriately preserve signiftcant open spaces and vistas. The two sites are currently proposed fo be redeveloped as one and the development would increase footprint on the ground; however there are no significant view planes, or open spaces adjacent to the property that should be considered as part of the redevelopment. 3. Structures are appropriately oriented to public streets, contribute to the urban or rural context where appropriate, and provide visual interest and engagement of vehicular and pedestrian movement. Exhibit A -PUD Review Criteria Page 6 of I I The proposed building is generally oriented towards the public streets. The building provides a number of decks along the street to contribute towards visual interest; however, entries are somewhat discreet and could be developed to create a greater street presence. 4. Buildings and access ways are appropriately arranged to allow emergency and service vehicle access. The City of Aspen Fire Marshal has reviewed the proposal, and has noted that additional detailed drawings will be required to show fire department access to the lower parking areas. Further, all structures will be required to include fire sprinkler systems, and fire alarm systems. Staff finds this criterion to be met at a conceptual level. 5. Adequate pedestrian and handicapped access is provided. According to the Application, the project will comply with all applicable requirements. This has been included as a condition in the Resolution. Staff finds this criterion to be met. 6. Site drainage is accommodated for the proposed development in a practical and reasonable manner and shall not negatively impact surrounding properties. According to a letter submitted by the Applicant's engineer, site drainage will be handled with some drainage improvements (drywe-]s) to maintain historic runoff. Staff finds this criterion to be met. 7. For non-residential land uses, spaces between buildings are appropriately designed to accommodate any programmatic functions associated with the use. Staff finds this criterion to not be applicable. D. Landscape Plan. The purpose of this standard is to ensure compatibility of the proposed landscape with the visual character of the city, with surrounding parcels, and with existing and proposed features of the subject property. The proposed development shall comply with the following: The Applicant provided a draft landscaping plan as part of the original Conceptual application. An updated version will be provided as part of the Final PUD Application. 1. The landscape plan exhibits a well designated treatment of exterior spaces, preserves existing significant vegetation, and provides an ample quantity and variety of ornamental plant species suitable for the Aspen area climate. The Applicant has provided some conceptual landscaping on the site plan in the original application and with some of the perspectives. A number of new plantings Exhibit A -PUD Review Criteria Page 7 of 1 I aze proposed. A final landscape plan will be submitted as part of the Final PUD application, which will ensure landscaping is consistent with adjacent land. Staff finds this criterion to be met. 2. Significant existing natural and man-made site features, which provide uniqueness and interest in the landscape, are preserved or enhanced in an appropriate manner. There are no significant and man-made features that require preservation. Staff finds this criterion to not be applicable. 3. The proposed method of protecting existing vegetation and other landscape features is appropriate. The Applicant will provide a final landscape plan in with the Final PUD. This will ensure existing landscaping is preserved or mitigated for if it is to be removed. Staff finds this criterion to be met. E. Architectural Character. 1. Be compatible with or enhance the visual character of the City, appropriately relate to existing and proposed architecture of the property, represent a character suitable for and indicative of the intended use and respect the scale and massing of nearby historical and cultural resources. The architecture proposed (heavy timber with stone) could be in any mountain community and has the feel of a lodge rather than a neighborhood residential project. Aspen's "design history ranges from Victorian to Bauhaus, from 50's "ski instructor" to postmodern, to contemporary." Staff believes the architecture should reflect the type of project it is (residential) and opportunities to fit better with the surrounding context. Staff believes the architecture should go further in relating to the residential feel of the neighborhood. Staff finds this criterion is not met. 2. Incorporate, to the extent practical, natural heating and cooling by taking advantage of the property's solar access, shade and vegetation and by use of non- or less-intensive mechanical systems. The proposed site plan utilizes photovoltaic power but additional information on natural heating and cooling is not discussed. 3. Accommodate the storage and shedding of snow, ice and water in a safe and appropriate manner that does not require significant maintenance. The Applicant must submit a detailed plan for snow removal and storage as part of the final application. Staff finds this criterion to not be addressed in the application but will be required to be addressed at final application. F. Lighting. Exhibit A -PUD Review Criteria Page 8 of 11 1. The purpose of this standard to ensure the exterior of the development will be lighted in an appropriate manner considering both public safety and general aesthetic concerns. 2. A[I exterior lighting shall in compliance with the outdoor lighting standards unless otherwise approved and noted in the final PUD documents. Up-lighting of site features, buildings, landscape elements and lighting to call inordinate attention to the property is prohibited jor residential development. The PUD will comply with all lighting regulations in place. Amore detailed plan will be provided as part of the Final PUD. G. Common Park, Open Space, or Recreation Area. If the proposed development includes a common park, open space, or recreation area for the mutual beneftt of al[ development in the proposed PUD, the following criteria shall be met: 1. The proposed amount, location, and design of the common park, open space, or recreation area enhances the character of the proposed development, considering existing and proposed structures and natural landscape features of the property, provides visual relief to the property's built form, and is available to the mutual benefit of the various land uses and property users of the PUD. 1. A proportionate, undivided interest in all common park and recreation areas is deeded in perpetuity (not for a number of years) to each lot or dwelling unit owner within the PUD or ownership is proposed in a similar manner. 3. There is proposed an adequate assurance through a legal instrument jor the permanent care and maintenance of open spaces, recreation areas, and shared facilities together with a deed restriction against future residential, commercial, or industrial development. There are no common spaces proposed as part of this application. H. Utilities and Public facilities. The purpose of this standard is to ensure the development does not impose an undue burden on the City's infrastructure capabilities and that the public does not incur an unjustified financial burden. The proposed utilities and public facilities associated with the development shall comply with the following: 1. Adequate public infrastructure facilities exist to accommodate the development. The Water, Sanitation, and Electric Departments reviewed this application and determined there is adequate service for this development. This will be addressed in greater detail at Final PUD. Exhibit A -PUD Review Criteria Page 9 of I I 2. Adverse impacts on public infrastructure by the development will be mitigated by the necessary improvements at the sole cost of the developer. At this time no adverse impacts are anticipated. This will be addressed in greater detail at Final PUD. 3. Oversized utilities, public facilities, or site improvements are provided appropriately and where the developer is reimbursed proportionately for the additional improvement. This criterion will be addressed at Final PUD when a finalized site plan and associated materials are available for City Departments to review. I. Access and Circulation. (Only standards 1 &2 apply to Minor PUD applications) The purpose of this standard is to ensure the development is easily accessible, does not unduly burden the surrounding road network, provides adequate pedestrian and recreational trail facilities and minimizes the use of security gates. The proposed access and circulation of the development shall meet the following criteria: 1. Each lot, structure, or other land use within the PUD has adequate access to a public street either directly or through an approved private road, a pedestrian way, or other area dedicated to public or private use. Staff believes that all structures and uses have appropriate access to a public street. The application proposes to install sidewalks along the property. Staff finds this criterion to be met. 2. The proposed development, vehicular access points, and parking arrangement do not create traffic congestion on the roads surrounding the proposed development, or such surrounding roads are proposed to be improved to accommodate the development. Staff believes the level of parking for the provided for the affordable housing will create overflow into the surrounding neighborhoods. Staff does find this criterion met. 3. Areas of historic pedestrian or recreational trail use, improvements of, or connections to, the bicycle and pedestrian trail system, and adequate access to significant public lands and the rivers are provided through dedicated public trail easements and are proposed for appropriate improvements and maintenance. The proposed development will not require any trail easements. Staff finds this criterion to be met. Exhibit A -PUD Review Criteria Page 10 of 11 4. The recommendations of the Aspen Area Community Plan and adopted specific plans regarding recreational trails, pedestrian and bicycle paths, and transportation are proposed to be implemented in an appropriate manner. The Applicant has agreed to provide sidewalks along the property but there are no specific trails or paths that aze required. Staff finds this criterion to be met. 5. Streets in the PUD which are proposed or recommended to be retained under private ownership provide appropriate dedication to public use to ensure appropriate public and emergency access. There are no internal streets proposed as part of this PUD. Staff finds this criterion to be met. 6. Security gates, guard posts, or other entryway expressions for the PUD, or for lots within the PUD, are minimized to the extent practical There are no gates or guard posts proposed as part of this PUD. Staff finds this criterion to be met. J. Phasing of Development Plan. (does not apply to Conceptual PUD applications) The purpose of this criteria is to ensure partially completed projects do not create an unnecessary burden on the public or surrounding property owners and impacts of an individual phase are mitigated adequately. If phasing of the development plan is proposed, each phase shall be deftned in the adopted final PUD development plan. No phasing is proposed as part of this development. Exhibit A -PUD Review Criteria Page I I of 11 ~~`~th~i~ -4-~ MEMORANDUM TO: Tom McCabe FROM: Cindy Christensen DATE: August 14, 2008 RE: ANSWERS FOR ASPENWALK/APCHA JOINT DEVELOPMENT Sales vs. Rentals: Rentals and sales are both needed in the housing inventory. Either type could be strongly supported. However, Housing's experience in mixed rental and ownership units has always been negative. Renters do not have the commitment to their unit as much as an owner does and their behavior is often an order of magnitude different and frequently incompatible. The majority of the units in the area aze ownership units. The nearby owners may be more receptive to ownership units versus rental units. Staff can provide lottery documentation of the amount of households entering into the lottery, especially the one-bedroom units. Staff also has the ability to provide documentation of the number of households that sign up for a rental unit when one becomes available. This will only show the need for BOTH rental and sales units. Rental Rates for Smue¢ler: Range from $320 for the small studio units, up to $714 for the largest two-bedroom unit. One of the studio units rents for $598. The rent is different on this one as the tenant is one who has lived in the project from the inception of the deed restriction pays according to income; therefore, is not a Category 1 household. Disaosition of Existin¢ Tenants: There has been some attrition from both the free-market side and the affordable housing side of tenants. The units do not remain empty, but the new tenants are told that the buildings are to be demolished and that it is there obligation on APCHA's or AspenWalk's part to find other places when demolition begins. For the people who have rented prior to a specific date, the Housing Board's endeavor is to help tenants in the affordable housing project find alternate housing until such time as the project is completed. At that point in time, those households will have the right of first refusal for the ownership units as long as they still qualify for that specific category, employment, etc. As to the tenants on the free-market side, there is no obligation on APCHA's part to provide alternate housing nor give them right of first refusal for the new units. However, again, the Housing Board would like to help these tenants in some way if they are qualified employees. As to whether these tenants should have right of first refusal for the ownership units, is something that needs further consideration. The Housing Board has limited funds to help in the interim. One potential idea to help increase lower category units is for APCHA to provide funds to the City of Aspen in one of the potential new projects that could include rental units. The Board may be willing to "buy down" some of the units to Category 1 rental units. Vut ~ MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Chris Bendon, Community Development Director RE: Lift One Neighborhood Master Plan Confirmation of COWOP Review Eligibility and Updated Proper.' Descriptions -Public Hearing Resolution No.i~; Series of 2008 DATE: August 25, 2008 SUMMARY: City Council initiated the Lift One Neighborhood Master Plan COWOP review through the adoption of Resolution No. 13, Series of 2008. Reso. 13 is attached as Exhibit A. The 27- member Master Plan Task Force has met every Thursday since April 10t~' and is expected to make a final recommendation by the end of September. Examples of the task force work product are shown on the right. The master plan includes lands owned or managed by four entities -the City of Aspen, Aspen Land Fund II (Centurion Partners), Roaring Fork Mountain Lodge -Aspen, and the Aspen Skiing Company. The purpose of this resolution is to confirm the eligibility of this project for COWOP review. There are slight changes to the legal descriptions of the properties subject to the review necessitating a new eligibility determination. No other changes to Resolution No. 13 are proposed. Staff recommends City Council confirm the Lift One Neighborhood Master Plan's eligibility for the City's Convenience and Welfare of the Public (COWOP) review process with the updated property descriptions. Staff recommends adoption of the proposed Resolution. n APPLICANTS: 1. Aspen Land Fund II, LLC (Centurion Partners). Represented by John Sarpa. 2. Roaring Fork Mountain Lodge -Aspen, LLC. Represented by Robert Daniel. 3. Aspen Skiing Company. Represented by David Bellack 4. The City of Aspen. RECOMMENDATION: Staff recommends City Council confirm determine the Lift One Neighborhood Master Planning effort eligible for the City's COWOP process. CITY MANAGER COMMENTS: ~~ RECOMMENDED MOTION: "I move to approve Resolution No. Series of 2008, confirming the Lift One Neighborhood Master Plan's eligibility for the COWOP review process with the updated property descriptions." ATTACHMENTS: Proposed Resolution No, Series of 2008 Exhibit A - Reso. 13, Series of 2008 2 RESOLUTION N0~ (SERIES OF 2008) A RESOLUTION OF THE ASPEN CITY COUNCIL CONFIRMING THE "LIFT ONE NEIGHBORHOOD MASTER PLAN" ELIGIBLE AS A PROJECT REASONABLY NECESSARY FOR THE CONVENIENCE AND WELFARE OF THE PUBLIC (COWOP) AND UPDATING THE LEGAL DESCRIPTIONS OF ELIGIBLE PROPERTY WITHIN THE MASTER PLAN. WHEREAS, the Community Development Department received a completed application from Aspen Land Fund II, also known as Centurion Partners, LLC; Roaring Fork Mountain Lodge -Aspen; the Aspen Skiing Company; and, the Aspen City Manager, for a determination of eligibility for a project, known as the Lift One Neighborhood Master Plan, reasonably necessary for the convenience and welfare of the public (COWOP) for a redevelopment of lands, owned by the above mentioned parties, for the purpose of providing or improving the provision of lift-served skiing access to Aspen Mountain, pedestrian, vehicular and emergency vehicle access to properties along South Aspen Street, non-traditional energy sources such as ground source energy system, recreational facilities, a museum focused on the evolution of skiing in Aspen, public parking, and commercial, lodging, free-market residential, and affordable residential land uses; and, WHEREAS, the City of Aspen City Council adopted Resolution No. 13, Series of 2008, determining the Lift One Neighborhood Master Plan reasonably necessary for the convenience and welfare of the public (COWOP) review process; and, WHEREAS, the legal descriptions of the lands subject to this review have been updated and are attached as Exhibit A and are generally described as lands on both sides of South Aspen Street south of Dean Street, excluding the Shadow Mountain Townhomes; and, WHEREAS, pursuant to Chapter 26.500 of the Land Use Code, the City Council may make updates or adjustments to a proposed development determined reasonably necessary for the convenience and welfare of the public during a duly noticed public hearing after taking and considering comments from the general public, and a recommendation from the Community Development Director; and, WHEREAS, the Aspen City Council has reviewed and considered the Lift One Neighborhood Master Plan eligibility confirmation and updated descriptions of the land within the master plan under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the findings of Resolution No. 13, Series of 2008, are unchanged with the updated legal descriptions and the project shall continue to be reviewed as a project reasonably necessary for the convenience and welfare of the public (COWOP); and, Aspen City Council Resolution No. _, Series of 2008 Confirming COWOP Eligibility and Updating Legal Descriptions for Lift One Neighborhood Master Plan -Page 1 WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1- Elieibility Confirmation Pursuant to Section 26.500.040 of the Land Use Code, the Lift One Neighborhood Master Plan, as described in Resolution No. 13 Series of 2008 and with updated property descriptions, continues to be reasonably necessary for the Convenience and Welfare of the Public and eligible for the COWOP review process. Section 2 -Updated Lethal Descriptions The updated legal descriptions of the lands attached as Exhibit A. subject to the COWOP review process are Section 3 - Proeress of Master Plan Task Force The progress of the Lift One Neighborhood Master Plan Task Force Team, as documented by the project binder on file with the Community Development Department and the project web site located at htty'//www aspenpitkin com/depts/41/liftoneMP.cfm, shall be incorporated into the continuing work of the task force. Section 4 -Resolution No. 13. Series of 2008 Together with the updated legal descriptions attached hereto, all aspects of Resolution No. 13, Series of 2008, shall remain in full force and effect. FINALLY, adopted, passed and approved this `~ day of , 2008. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor. Approved as to form: John P. Worcester, City Attorney Exhibit A -Updated legal descriptions of lands within the Lift One Neighborhood Master Plan review process. Aspen City Council Resolution No. _, Series of 2008 Confirming COWOP Eligibility and Updating Legal Descriptions for Lift One Neighborhood Master Plan -Page 2 Resolution No. _, Series of 2008 Exhibit A -Legal Descriptions A. Property of Aspen Land Fund II, LLC South Aspen Street Subdivision/Planned Unit Development Lots 1, 2, and 3, as described on the plat thereof recorded Apri127, 2007 with the Pitkin County Clerk and recorder as reception number 537080 in Book 83, Page 50. B. Property of Aspen Skiing Company 1. Land Under Contract with Roazing Fork Mountain Lodge -Aspen, LLC which is included in the Lift One Lodge Application: Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, Block 10, and Lots 1, 2, 3, 4, 5, 6 and 7, Block 12, EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN, TOGETHER WITH an easement and right of way for the construction, erection, operation and maintenance of a cable ski chair lift, as created, defined and established by Easement Agreement between the Board of County Commissioners of the County of Pitkin and Friedl Pfeifer recorded October 24, 1962, in Book 199 at Page 489, and, TOGETHER WITH an easement and right of way for skiing purposes, as created, defined and established by Easement Agreement by and between the City of Aspen and Aspen Skiing Corporation recorded October 17, 1969, in Book 244 at Page 31, and TOGETHER WITH that portion of the alleyway for Block 10 vacated in Book 259 at Page 83. 2. Land Area to the South of the Lift One Lodge Site: That property owned by the Aspen Skiing Company extending south from Block 12, Eames Addition to the City and Townsite of Aspen, to the Aspen City limits. C. Property of Roaring Fork Mountain Lodge -Aspen, LLC Lots 12, 13 and 14, Block 8, together with that portion of the alley in Block 8 abutting said lots, Eames Addition to the City and Townsite of Aspen, Eames Addition, City and Townsite of Aspen (Skiers Chalet Steakhouse); Lots 5, 6, 7, 8, 9 and 10, Block 9, together with Lots 4 and 11, Block 9, less the west 22 feet thereof, Eames Addition to the City and Townsite of Aspen, and that portion of the alley in said Block 9 vacated by the City of Aspen in Ordinance No. 4, Series of 2006, recorded April 11, 2006 under Reception No. 522845 (Skiers Chalet Lodge); and Lots 1, 2, 13 and 14, Block 9, Eames Addition to the City and Townsite of Aspen, together with that portion of the vacated alley between Lots 1 and 14 and the west 20 feet of the vacated alley between Lots 2 and 13, Block 9, Eames Addition to the City and Townsite of Aspen (Holland House). D. Property owned or maintained by the City of Aspen. Willoughby Park: Lots 1-14, Block 7 and Lots 1-3, Block 8 Eames Addition, City and Townsite of Aspen, and that portion of Juan Street east of South Aspen Street between Blocks 7 and 8, Eames Addition, City and Townsite of Aspen and that portion of the alley in Block 8 adjacent to Lots 1, 2, and 3 Block 8, Eames Addition, City and Townsite of Aspen. Lift One Park: Lots 3 and 12 Block 9 and the western 22 feet of Lots 4 and 11, Block 9 Eames Addition, City and Townsite of Aspen. Public rights-of--way: • South Aspen Street south of Durant Avenue. • All unvacated portions of Dean Street west of Monarch Street. • Juan Street between South Aspen Street and Garmisch Street. • The alleyway between Lots 1, 2 and 3 and Lots 12, 13, and 14, Block 8, Eames Addition, Ciry and Townsite of Aspen (unopened). • Garmisch Street from Juan Street to Durant Avenue. • Gilbert Street west of Monarch Street. Hill Street west of Monarch Street (unopened). • Summit Street west of Monarch Street (unopened). • A one-block section of alleyway between Hill Street and Summit Street east of South Aspen Street (unopened). • A one-block section of alleyway south of Summit Street east of South Aspen Street (unopened). RESOLUTION N0. 13 ~ G{~[ir/ri ~l;'f f/r7p (SERIES OF 2008) A RESOLUTION OF THE ASPEN CITY COUNCIL DETERMINING THE "LIFT ONE NEIGHBORHOOD MASTER PLAN" ELIGIBLE AS A PROJECT REASONABLY NECESSARY FOR THE CONVENIENCE AND WELFARE OF THE PUBLIC (COWOP) ON PROPERTY LOCATED ON BOTH SIDES OF SOUTH ASPEN STREET SOUTH OF DEAN STREET OWNED BY THE CITY OF ASPEN, THE ASPEN SKIING COMPANY, ASPEN LAND FUND II (AKA CENTURION PARTNERS), AND ROARING FORK MOUNTAIN LODGE - ASPEN ALL WITHIN THE CITY OF ASPEN, PITKIN COUNTY, COLORADO. WHEREAS, the Community Development Department received a completed application from Aspen Land Fund II, also known as Centurion Partners, LLC; Roazing Fork Mountain Lodge -Aspen; the Aspen Skiing Company; and, the Aspen City Manager, for a determination of eligibility for a project, known as the Lift One Neighborhood Master Plan, reasonably necessary for the convenience and welfaze of the public (COWOP) for a redevelopment of lands, owned by the above mentioned parties, for the purpose of providing or improving the provision of lift-served skiing access to Aspen Mountain, pedestrian, vehiculaz and emergency vehicle access to properties along South Aspen Street, non-traditional energy sources such as ground source energy system, recreational facilities, a museum focused on the evolution of skiing in Aspen, public pazking, and commercial, lodging, free-market residential, and affordable residential land uses; and, WHEREAS, the City of Aspen manages public right-of--way in the planning azea including Hill Street, Summit Street, Gilbert Street, the alley within Block 10 of the Eames Addition, South Aspen Street, Juan Street, and Dean Street and owns certain public ]and known locally as Willoughby Pazk and Lift One Pazk; and, WHEREAS, the legal descriptions of the lands subject to this review are attached as Exhibit A and aze generally described as lands on both sides of South Aspen Street south of Dean Street, excluding the Shadow Mountain Townhomes; and, WHEREAS, changing the disposition of certain city-owned lands within the project area may require a public vote; and, WHEREAS, pursuant to Section 26.500.050 of the Land Use Code, the City Council may make a determination whether a proposed development is reasonably necessary for the convenience and welfare of the public by applying the standards of Section 26.500.040 during a duly noticed public heazing after taking and considering comments from the general public, and a recommendation from the Community Development Director; and, WHEREAS, the Community Development Director determined that the Lift One Aspen City Council Resolution No. 13, Series of 2008 COWOP Eligibility for Lift One Neighborhood Master Plan -Page 1 Neighborhood Master Plan may be eligible for consideration as a project reasonably necessazy for the convenience or welfaze of the public, and notified in writing the Planning and Zoning Commission, the Historic Preservation Commission, and the Aspen/Pitkin County Housing Authority the date of the public heating before the City Council at which time a determination is to be made concerning eligibility of the proposed development; and, WHEREAS, the Aspen City Council has reviewed and considered the Lift One Neighborhood Master Plan eligibility proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Community Development Director, and has taken and considered public comment at a public hearing; and, WHEREAS, the City Council finds that the development proposal meets or exceeds the Standards for Determination, Section 26.500.040, for the following reasons: I. The Master Plan could provide enhanced access to lift-served skiing on Aspen Mountain, lodging facilities that meet the needs of the of the community, affordable housing units that serve the needs of the community, improved vehicular, pedestrian and emergency vehicle access, the development of public pazking, the preservation of important local and national historic resources, the development of non-traditional energy sources such as ground source energy system, recreational facilities, a museum focused on the evolution of skiing in Aspen, and a unified approach to managing construction impacts and ongoing maintenance and operations of the area's infrastructure, 2. Preserving and enhancing short-term lodging facilities, providing adequate emergency services and access, the provision of effective access to lift-served skiing, housing the workforce, and energy efficiency are stated community goals that could be addressed through master planning of this azea. 3. Portions of the subject area are owned by the City of Aspen and a Master Plan could permit an advantageous disposition of those properties; 4. Portions of the subject azea are managed by the City of Aspen as rights-of--way and a Master Plan could permit an advantageous disposition of those properties; 5. The bifurcated ownership of the subject area and independent projects in various stages of entitlement may result in an ad-hoc development pattern while a master planning process using an interactive and multidisciplinary approach with a diverse COWOP task team, including neighbors of the project and persons with special interest in the property and its development will lend itself to the type of open dialogue needed to determine a cohesive future vision for the neighborhood; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare, Aspen City Council Resolution No. 13, Series of 2008 CO WOP Eligibility for Lift One Neighborhood Master Plan -Page 2 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1- Eli¢ibility Pursuant to Section 26.500.040 of the Land Use Code, the Lift One Neighborhood Master Plan, as described herein, is determined to be eligible development necessary for the Convenience and Welfaze of the Public. Section 2 -Procedure and Standards Pursuant to Section 26.500.050(B)(b), the procedure and standazds for review of the project shall be: Process: I. Task Force Team convenes and establishes its role, meeting schedule, meeting procedural protocol and meeting rules for the conduct of business of the Lift One Neighborhood Master Plan COWOP Task Force Team. 2. Task Force Team Chair and Staff shall be the City's Director of Community Development who may designate a meeting facilitator or other personnel or contractors as needed. 3. Property owners shall represent themselves or designate a representative. 4. Task Force Team shall develop the Master Plan (quantitative elements and broad urban design elements, including the contextual relationship of the project to surrounding properties). 5. Community Development and Interdepartmental Technical Staff Review. 6. Task Force Team and Staff provide recommendations to City Council. 7. Formal final approval decision shall be the responsibility of City Council and shall require adoption of an Ordinance. City Council may, by resolution, determine the project no longer qualifies for the COWOP process, at any time, and discontinue the COWOP Task Force Team. Standazds: 1. Section 26.445.050, Review Standards: Planned Unit Development. 2. Section 26.310, Amendments to the Land Use Code and Official Zone District Map. 3. Section 26.415, Development Involving Historic Resources. Any development affecting a historic resource shall be required to comply with this section, beyond any decision reached in the COWOP review. 4. Section 26.470, Growth Management, to the extent determined necessary during project review. Ii is expected that commercial, lodging, affordable housing, and free- market housing allotments will not require an additional review beyond the COWOP review. 5. Section 26.480, Subdivision, if determined to be necessary during project development and review. 6. Technical design standazds of utility providers shall be considered and the COWOP decision shall not supersede any non-city utility provider. 7. The Aspen Area Community Plan shall be considered a policy guide and the final recommendation shall include an analysis of conformance with this adopted plan. Aspen City Council Resolution No. 13, Series of 2008 COWOP Eligibility for Lift One Neighborhood Master Plan -Page 3 Section 3 - COWOP Task Force Team Members Pursuant to Section 26.500.050(B)(c), the Task Force Team to review the development proposal shall include representatives from the following: • Task Force Team Chair -Chris Bendon, Community Development Director (non- voting) • Planning Staff - as assigned by the Community Development Director (non- voting) • City Council Members (2) - to be determined • Planning and Zoning Commission member - to be determined • Historic Preservation Commission member - to be determined • Centurion Partners, LLC -John Sarpa • Roaring Fork Mountain Lodge -Aspen, LLC -Bob Daniel • Aspen Skiing Company -Dave Bellack • Five to seven neighbors to include atleast: o One neighbor to the South - to be determined o One neighbor to the North - to be determined o One neighbor to the West - to be determined o Two neighbors to the East - to be determined • Aspen Historic Society -Georgia Hansen • Aspen Valley Ski Club -Jeff Kai • Five to seven Citizens at-lazge - to be determined It is acknowledged through this resolution that it will be beneficial for many interested parties beyond those identified in the above noted list to be involved in the COWOP process and that the opportunity for involvement is created through this process. Additional interested parties will be able to attend atl meeting of the COWOP Task Force Team and may be provided with email notice of meeting schedules at their request. All meetings of the Task Force Team will be conducted in public heazings. It is also acknowledged through this resolution that numerous City Departments, other governmental or district agencies and consultants will provide technical assistance and analysis as determined to be necessary and/or as required. Section 4 - Proaosed Timeframe Pursuant to Section 26.500.050(B}(d), the proposed timeframe for the procedures to be used to review the proposed development are anticipated to be completed within approximately eight (8) months from the date of this resolution. The following schedule is an estimated timeline and is subject to change: Aspen City Council Resolution No. ] 3, Series of 2008 COWOP Eligibility for Lift One Neighborhood Master Plan -Page 4 Mazch Finalize COWOP Task Force Membership April -May Task Force Meetings. Introductions, site visit, process overview, project overview, goals and objectives. Check-ins as needed with HPC and P&Z. Check-in or heazing with Council to review goals. May -June Task Force Meetings. Identification of physical, regulatory and economic constraints with input from technical advisors on nature of constraints. A third party briefing of financial assumptions and assertions will be needed. Identification of constraints that can be overcome and constraints that must be observed. Check-ins as needed with HPC and P&Z. Check-in or hearing with Council to review constraints. June -Aug. Multiple Task Force Meetings to consider balance of goals and constraints, project program, and potential site plans (uses, access, intensities, and massing). Design chanettes (longer sessions) may be used. Check-ins as needed with HPC and P&Z. A third party analysis of financia] assumption and assertions will be needed. Hearing(s) with Council to review balance of goals and constraints and preferred site plan and program. Aug. -Sept. Multiple Task Force Meetings to consider conceptual azchitecture and more-refined site planning issues. Review proposed development agreement and construction management plan. Check-ins as needed with HPC, P&Z, and City Council. September Finalize Task Force recommendation. Sept. -Oct. Public Heazings for Master Plan adoption with HPC, P&Z, and City Council. Section 5 -Components of the Master Plan and Adoation At a minimum, the Master Plan adopted pursuant to this process shall include: 1. A description and depiction of allowable development on each property, including allowable height, area, bulk, density, uses, operating chazacteristics, and unit ownership structure. 2. A description and depiction of conceptual architecture, character, materials, and fenestration. The Master Plan should describe the specificity upon which conceptual azchitecture may be amended and the process of amendment. 3. A description and depiction of the rights-of--way to be vacated, upgraded, or otherwise affected including encroachments therein. Aspen City Council Resolution No. 13, Series of 2008 CO WOP Eligibility for Lift One Neighborhood Master Plan -Page 5 4. A description of the amount and method(s) of affordable housing and other development impact mitigation requirements that must be provided. 5. A description and allocation of responsibility for the development and maintenance of neighborhood and shazed infrastructure and community benefits (e.g., the Town Lift and new ski terrain, road improvements, and public parking). 6. A description of the timing, phasing, and management of construction activity. As necessary, the construction management plan shall contemplate the individual property owners proceeding sepazately, provided that such development is consistent with the Master Plan and that the shazed obligations and construction management requirements are satisfied. The Community Development Director shall present the findings and recommendations of the Task Force to City Council during a public hearing and shall provide an analysis for the proposal and the standazds of review identified herein along with a proposed Ordinance(s) that implements and entitles the Master Plan. The proposed Ordinance(s) shall provide final approval of the necessary land use reviews and shall cause issuance of a Development Order(s), subject to any detailed design, engineering, documentation and platting recordation requirements applicable to each development site and any final reviews that may be required in connection therewith, with the understanding that all such final reviews shall be ministerial in nature excepting any required final review by the Historic Preservation Commission. The Ordinance adopting the Master Plan shall describe and implement the necessary reductions in Growth Management Allocations to accommodate the build-out of the Master Plan. Section 6 - Citv's Timelv Processine and Review The City Council shall allocate meeting times and resources of the City and necessary and reasonable for the timely processing, review, and guidance of the master planning COWOP process. Section 7 -Historic Preservation Commission Review This Resolution does not exempt the subject properties from the procedures and requirements of Section 26.415, Development Involving Historic Resources. Both Conceptual and Final Review approval shall be necessary for properties designated Historic Landmarks regardless of the direction or disposition of the Mater Plan. Roaring Fork Mountain Lodge -Aspen, LLC, shall process such applications to the Historic Preservation Commission as may be required for its project concurrent with the Master Planning COWOP Process. Section 8 -Cost Sharine There shall be established a cost shazing agreement that shall identify and proportionately allocate joint costs of the master planning process to the parties involved. Costs associated with individual employees and/or consultants of the parties shall be the responsibility of the particulaz party. The City shall not assess land use review fees for Aspen City Council Resolution No. 13, Series of 2008 CO WOP Eligibility for Lift One Neighborhood Master Plan - Aage 6 this master planning process. Section 9 -Economic Analysis There shall be retained a financial consultant with expertise in the economic viability of ski area or resort real estate development. The consultant shall be independent and shall be subject to approval of both the City Council and land owners. The City of Aspen, Centurion Partners, Aspen Skiing Company and Roaring Fork Mountain Lodge -Aspen, LLC, shall provide information relating to the financial viability of the Master Plan and their respective components to the satisfaction of the economic consultant. Such information shall be provided to the independent financial advisor only, in strict confidence, and shall not be shared with other participants, the Task Force, the public, the City Council, staff of the City or anyone else without the express written consent of the party providing such information. The financial advisor shall be entitled to provide participants and the City Council with his/her conclusions and opinions regazding financial viability based upon the information provided as long as the information itself remains confidential. vcl.uvu 1v - i•10.J1G1 a 1A1111111L' a 1 VCGJJ LlY1Y uc a G/ W11lA LGu The master planning COWOP process may be terminated by the City Council, Centurion Partners, the Aspen Skiing Company, or the Roaring Fork Mountain Lodge -Aspen, LLC. Termination shall be preceded by a meeting between the City Manager, the Community Development Director, and representatives of the three private property owners. Potential reasons to terminate the planning process include failure to keep to a reasonable schedule, an inability to agree on physical, regulatory or economic constraints, or a fundamental disagreement regarding the direction of the plan. The process may be terminated for any reason, including no reason. Section 11 - Townhomes Proiect on hold City Council Ordinance No. 32, Series of 2003, granted approval for a development on the Centurion properties known as the "townhomes project" on land owned by Centurion Partners, LLC. City Council Resolution No. 9, Series of 2008, extended the statutory vested rights for the townhomes project through July 28, 2009, If Centurion requests, the Chief Building Official shall discontinue review of the building permit and consider the permit dormant with respect to Section 105.3.2., Time limitation of application, of the 2003 International Building Code. Centurion shall have the right to reactivate the building permit application at any time prior to July 28, 2009. The townhome approvals embodied in Ordinance No. 32, Series of 2003, and all building permits and applications and vested rights associated therewith, shall be exempt from Section 26304.030(F) ("No Multiple Applications") of the Land Use Code, and shall not be otherwise adversely affected or impaired in any way by the involvement of the Centurion Partners property in this master planning COWOP process. Finally, Centurion Aspen City Council Resolution No. 13, Series of 2008 COWOP Eligibility for Lifr One Neighborhood Master Plan -Page 7 Partners' participation in the COWOP Process shall be exempt from Section 26.304.060(F) (Resubmittal of a Previously Denied Application) of the Land Use Code. Section 12 -Lift One Lodge Application on hold The proceedings for the pending Application for Lift One Lodge, which includes land owned by the Aspen Skiing Company, the City of Aspen, and Roazing Fork Mountain Lodge -Aspen, LLC shall be suspended for all intents and purposes during the time of the master planning COWOP process. For the purposes Section 26.304.070(F) of the Land Use Code, the application shall continue to be considered "active" and any and all deadlines or expiration dates associated with the Lift One Lodge Application will be tolled until processing is resumed. All previously obtained consents and all previously obtained approvals or recommendations of approval, in particulaz the approvals of the Planning and Zoning Commission and Historic Preservation Commission, shall remain in effect. Upon reactivation of the Lift One Lodge Application, the application will continue to be processed and considered pursuant to the City's Land Use Regulations in place on the date that the. Application to the Historic Preservation Commission was deemed complete in March of 2006. Section 13 -Holland House Redevelopment Credits The time period for utilization of replacement credits for employees, lodging, and any other pertinent matter related to the Holland House Lodge, following its demolition, pursuant to the pending application for a demolition permit, is hereby extended to the later o£ 1. 24 months after final approval, denial or withdrawal of the current application for Lift One Lodge, or 2. 24 months after final approval, denial or withdrawal of a new application for all or some of the properties described in the current Lift One Lodge application; or, 3. 24 months after approval of a final application for development of the Lift One Lodge site pursuant to the Master Planning COWOP Process, whichever is later. Section 14 -Historic Designations The City shall not initiate a process to designate the Skiers Chalet Lodge or any other structure located within the Master Plarming Area as historic resources as long as the Master Planning COWOP Process is active. The Master Planning process may recommend designation of historic resources. Section 15 - Temporarv Affordable Housin¢ Use of Existing Buildings The Skiers Chalet Lodge and Skiers Chalet Steakhouse may be utilized as housing for working residents during the pendency of the Master Planning COWOP Process. A temporazy deed restriction or agreement regarding the affordability of the units and compliance with the Aspen/Pitkin County Housing Authority shall be approved by the City Attorney prior to such buildings being occupied as affordable housing. A Building Permit and improvements may be necessazy prior to occupancy. The temporary use as Aspen City Council Resolution No. 13, Series of 2008 COWOP Eligibility for Lift One Neighborhood Master Plan -Page 8 affordable housing shall not effect achange-in-use and the properties shall not be subject to the City's Housing Replacement Program. In addition, lodging and employee credits associated with the Skier Chalet Lodge will remain in effect while it is used for affordable housing, FINALLY, adopted, passed and approved this 25a' day of February, 2008. Attest: i~G Kathryn S. K h, City Clerk Michael . Ir and, Mayot. ~ Approved as to form: Jo .l' orce ter, City Attorney Exhibit A -Legal descriptions of land subject to Master Planning Review. Aspen City Council Resolution No. 13, Series of 2008 CO WOP Eligibility for Lift One Neighborhood Master Plan -Page 9 Exhibit A to City Council Resolution No. 13, Series of 2008. A. Property of Aspen Land Fund II, LLC PARCEL I. Block 6, EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN, more particularly described as follows: Beginning at a point which is the intersection of the Easterly right of way Tine of Garmisch Street and the Southerly right of way line of Dean Avenue, from whence the Northeast Comer of Section 13, Township 10 South, Range 85 West of the 6th P.M., bears N 53°20'28" East 814.56 feet; thence along the Southerly right of way I'me of Dean Avenue S 75°09'71" E 330 feel to the Westerly right of way line of Aspen Street; thence along said right of way line of Aspen Street S 14°50'49" W 130 feet to the Northerly rlgM of way line of Juan Streak thence along said right of way fine of Juan Street N 75°09'11° W 330 feet to the Easterly fight of way 6ne of Garmisch Street; thence along said right of way line of Garmisch SVeet N 14°50'49" E 130 feetto Me point of beginning. EXCEPTING therefrom: The ponton described in Book 232 at Page 362. The above parcel is also described as follows: Beginning at a point which is the intersection of the Easterly right-o(-way line of Garmisch Street and itte Southerly dghtrof-way line of Dean Avenue, from whence the Northeast wmer of Section 73, Township 10 South, Range BS West of the Sixth Principal Mardian Dears N 53°20'28° E 814.56 feet, more or less; thence along the Southerly right-of-way line of Dean Avenue S 75°09' 11" E 330 fee, more or less, to the Westerly rightof-way line of Aspen Street; thence along said right-of-way fine of Aspen Street S 14°50'49" W 730 feet, more or less to the NoMedy rghtrof-way line of Juan Street; thence along said right-of-way Tine of Juan Street N 75°09'11° W 298.20 feet, to the Southeasterly comer of that parcel of land described in Book 232 at Page 362; thence N 40°21'11" W along the Northeasterly line of said parcel, a distance of 38.73 feet to the Northeasterly right-of-way line of Garmisch Street; thence along said right-oi-way line of Garmisch Street N 14°50'49" E 107.90 feet, more or less, to the point of beginning. SAID PARCEL OF LANp ALSO BEING DESCRIBED AS FOLLOWS 81ock 6, EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN, more particularly described as follows: Beginning at a point which is the intersection of the Easterly right of way Me of Garmisch Street and the Southerly light of way Hne of Dean Avenue, from whence the Northeast Comer of Section 13, Township 10 South, Range 65 West of the 6th Principal Meridian., bears N 53°20'28" East 614.56 leer more or less; thence along the Southerly right of way line of Dean Avenue S 75°09'11" E 330 feet, more or less to Ne Westerly fight of way line of Aspen Street thence along saitl right of way line of Aspen Street S 14°50'49" W 130 feet, more or less to the Northerly right of way line of Juan Street, thence along said rght of way line o1 Juan Street N 75°09'11" W 330 feet, more or less to the Easterly right of way Tine of Garmisch Street; thence along said right of way line of Garmisch S[eet N 14`50'49" E 130 feet, more or less to the point of beginning. EXCEPTING therefrom: That parcel of land described in Book 232 at Page 362 in the records of the Clerk and Recorder of Pitkin County, Colorado. Said Parcel 1 is also described as follows: Beginning of a point which is the intersection of the Eastery right-oi-way line of GarmiSCh Street and the $Wfh6f~' right-of-way line of Dean Avenue, from whence the Northeast comer of SecBOn 13, Township 10 Soutt, Range 85 West of the Sixth Principal Mendran bears N 53°20'28" E 814.56 feet, more or less; thence abng the Southerly right-of-way line of Dean Averwe S 75.09'17" E 330 fee, more w less, to the Westerly rght-of-way Tine of Aspen Street thence along said right-of-way tine of Aspen Street S 14°50'49" W 130 feel, more or less to the Northerly dgM-of-way line of Juan Sveek mence along said right-of-way gne of Juan Street N 75'09'11" W 298.20 leek to the Southeasterly comer of that parcel 01 land described in Book 232 at Page 362; thence N 40°21'11" W along me Northeasterly line of said parcel, a distance of 38.73 feet to the Norfheasterty dgMOf-way line of Garmiach SVeel; thence along said right•ot-way line of Garmisch Street N 14'50'49" E 107.90 feet, more or less, to the point of beginning. PARCEL 2: That portion of the Northeast onequaner of the Northeast one-quarter (Lot 1) of Secbon 73, Township 70 South, Range 85 West of the 6th P.M„ descibed as follows: Beginning at the Nonheast Comer of Lot 13, Block 11, Eames Adddion; thence N 75°09'17" W 181.25~eek mence S 14'50'49° W 78.00 feet; thence 5 03°55'43" W 164.99 teak thence S 75°09'17" E 150.00 Feet; thence N 14°50'49" E 240.00 feet to the point of beginning. ALSO KNOWN AS Lots 13, 14, 15, 16, 77, 1 B, 19 and 20, Block 11, EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN, and a tract of land being part of Lot 1 0( Section 13, Township 10 South, Range BS West of me 6m P.M., described as follows: Beginnng at the Northwesterly comer of Lol 13, Block 11, Eames Addition; thence S 14'50'49" W 240.00 feel along me Westerly Nne of said Block 11 to the Soumwasterly comer of Lot 20, Block 11, Eames Addition; thence N 03°55'43" E 164.99 feet thence N 14°50'49° E 78.00 feet mence S 75°09'11" E 31.25 feet to the point of beginning. AND Lots 7, B, 9, 10, 11 and 12. Block 11, EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN, more fully described as follows: Beginning at the Northwesterly comer of said Lot 7; thence S 75°09'71" E 180.00 feel along the Northerly bouMary line of said Black 11; thence S t4°50'49" W 100.00 feel along the Easterly boundary Ilne of said Block 11; thence N 75°09'11" W 180.00 feet along me Southerly boundary line of said Lots 7-12 to the Soumwestery comer of said Lol 7; thence N 14°50'49" E 100,00 feet along the Westerly boundary line of said Lot 7 to me point of beginning. SAID PARCEL OF LAND ALSO BEING DESCRIBED AS FOLLOWS: Beginning at the Southwest comer of said Lot 7, a rebar and cap PLS # 29030, from which a rebar end cep PLS # 2547 bears N 55° E a distance of 0.7 feet; thence N 14°50'49" E akxrg me westerly lure of said Lof 7, a distance of 100.00 feet to me Northwest wmer of said Lal 7, also being at me Soumedy right-of-way of Juan Street in the Cily of Aspen, a rebar and cap PLS # 2547; thence S 75°09'11" E along me Northerly line of said Block 1 t, also being me Southerly right-of-way line of said Juan Street a distance of 780.00 feet to the Northeast comer of said Block 11, a rebar and cap PLS #29030; thence S 14°50'49" W along the Easterly line of said Block 71, also being the Westerly fight-of-way of Aspen Street In the city of Aspen a distance of 700.00 feet tome Southeast comer of said Lot 72, a rebar and cap PLS # 29030; mence N 75°09'11" W along the Southerly line of said Lots 7,8,9,10,11 and 12 a diSlaRCe 0(180.00 /aet f0 fha polllt 0/ beginning. AND The vacated alley situated in Block t t, EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN. B. Property of Aspen Skiing Company 1. Land Under Contact with Roaring Fork Mountain Lodge -Aspen, LLC which is included in the Lift One Lodge Application: Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, Block 10, and Lots 1, 2, 3, 4, 5, 6 and 7, Block 12, EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN, TOGETHER WITH an easement and right of way for the construction, erection, operation and maintenance of a cable ski chair lift, as created, defined and established by Easement Agreement between the Board of County Commissioners of the County of Pitkin and Friedl Pfeifer recorded October 24, 1962, in Book 199 at Page 489, and, TOGETHER WITH an easement and right of way for skiing purposes, as created, defined and established by Easement Agreement by and between the City of Aspen and Aspen Skiing Corporation recorded October 17, 1969, in Book 244 at Page 31. 2. Land Area to the South of the Lift One Lodge Site: That property owned by the Aspen Skiing Company extending south from Block 12, Eames Addition to the City and Townsite of Aspen, a distance of 900 feet. C. Property of Roaring Fork Mountain Lodge - Snowmass, LLC Lots 1, 2, 3, 12, 13, and 14, Block 8, Eames Addition, City and Townsite of Aspen, and Lots 5, 6, 7, 8, 9 and 10, Block 9, and Lots 4 and l 1, less the west 22 feet thereof, Block 9, Eames Addition to the City and Township of Aspen, together with that portion of th alley in Block 9, Eames Addition to the City and Townsite of Aspen, abutting on all of Lots 5 and 10 and on Lots 4 and 11, except the west 22 feet thereof. D. Property owned or maintained by the City of Aspen. Willoughby Pazk: Lots 1-14, Block 7 and Lots 1-3, Block 8 Eames Addition, City and Townsite of Aspen. Lift One Pazk: Lots 3 and 12 Block 9 and the western 22 feet of Lots 4 and 11, Block 9 Eames Addition, City and Townsite of Aspen. Public rights-of--way: • South Aspen Street south of Durant Avenue. • All unvacated portions of Dean Street west of Monarch Street. • Juan Street between South Aspen Street and Garmisch Street. • Garmisch Street from Juan Street to Durant Avenue. • Gilbert Street west of Monazch Street. • Hill Street west of Monazch Street (unopened). • Summit Street west of Monarch Street (unopened). • A one-block section of alleyway between Hill Street and Summit Street east of South Aspen Street (unopened). • A one-block section of alleyway south of Summit Street east of South Aspen Street (unopened). ' ~ 2 .s L' ~ ~" ~~i w e tau NaavNOw `~ .: r . .. ~~ ... r F 37 ^ry ~ ~- r ~ ~ ~ .~ I I I I I ~, ~ ~I I ~ --- W a I.. q H 6 ~~~ ~ ~I ~ Im ~I ^~. ~ I...... ~ I~I'®'I ~I -- I 133tl15 N3dbY H1f105 ~ _~ w ~,~' .. . . . ..... gad. ~` I I I ~. ~ I I~ I I I I Iz I I I I;I .~ I ~__I __.~~ I ~ f~ ~ sA.w I ,~ .~ I I ''f1" ~ '.,W,~... 1337LLS MOSINYYO u:.~ V ~ ~' !. Vf •~'~ i ~' 133211S H~2IVNOW r ~ 1K• .r :. S- 133a1S N3dStl H1flOS 1 ;.. I I ~~ ~ a. '~; • ~ i • ~ ` /~ I N ~ gyp„ • a I I a Ia+~' z I -' a ~I ~ W ~ • I I ~ I i N , I L.-133211S H~SIWaVJ J W U D: a W d a O U I ~ I I ~~ U Z J ~ } w a O J ~ O ~ Or f~ ~w a i O Y 4 ~ L7 ~ ~ y G' cW7 H W CO z a ~ O V a LC CD ~ °8 L ~ o C e Y i S N VJ a ~ d Z •+ O y N U J Ib a W ~~ t O U ~ ~ I I a c I~~ h o 'c o a z a O U 1 C d d Vf M B. E c ~~ ~I ~® 0 N ~~ N N O C MEMORANDUM TO: FROM:, THRU: DATE OF MEMO: MEETING DATE: RE: Mayor and City Council Don Taylor, Director of Financial Services Steve Barwick, City Manager 8-22-08 8-25-08 November 2008 Ballot Measnre SUMMARY:. Staff and City Council have been evaluating several ballot questions related to Affordable housing and Phase, 2&3 of Burlingame. PREVIOUS COUNCII. ACTION: The City Council gave staff direction to prepare several ballot questions alternatives for the November election. This provides drafts and information for four of the questions, one authorizing the issuance of bonds in the amount of $16,000,000 and extending the housing real estate transfer tax, one only authorizing the extension of the real estate transfer tax (attached as Exhibit A}, and one to extend the .45% sales tax for the purpose of day care and housing and one advisory question on the appropriate density for Burlingame. REQUEST OF COUNCIL: Evaluate options for November ballot measures related to Burlingame or other affordable housing topics and provide staff direction. DISCUSSION: There are several options for the ballot questions that have been discussed. Drafts for these questions are attached. Options include: Option A: An advisory question related to the density of additional construction at Burlingame. This question would ask voters if they prefer the next construction at Burlingame be consistent with the original Shaw/Poss/DHIvI proposal or if it should include a greater number of units, Pace 1 of 2 modular construction, some stacking of units, etc. as is currently being sritdied by the Construction Experts Group. Ontion B: Renewal of the 0.45% Housing/Daycare sales tax. Much of the discussion leading up to City Council's decision to place this question on the May ballot surrounded the topic of sepazating it from any specific proposal for housing construction. To stay consistent with that philosophy, City Council may choose to place this measure before the voters in November. Ontion C: Authorization to issue $16,000,000 in bonds to reimburse the housing fund for land acquisitions made in 2007 and to extend the RETT tax. The City has spent $34,858,000 in creation of a land bank for future affordable housing projects. In doing so, the City has borrowed $8 million from the Wheeler Opera House Fund. Financing of the land acquisition costs was anticipated by the City Council and reimbursement resolutions were passed by the Council at the time of the land acquisitions. Assuming a 30 yeaz bond term, the annum cost of a 16M bond issuance would be $1,017,000. This is based on an average interest rate of 5.25%. The actual interest cost is expected to be less. Issuing these bonds would allow repayment of the Wheeler Opera House loan and would provide working capital for the Affordable Housing Fund. The working capital would be azound 7 million dollazs and would provide contingencies for ongoing projects and revenue fluctuations, Option D: Authorization to extend the RETT tax. This would not authorize the issuance of any bonds and would only seek the Real Estate Transfer Tax unti12040. The Council also had questions as to the format of the "TABOR" ballot questions. This language and or format is either specifically required in the constitutional amendment or has been developed by the various bond counsels in the State to insure that the questions aze crafted to be compliant with the provisions of the amendment. Page 2 of 2 RESOLUTION NO. 81 (Series of 2008) A RESOLUTION OF THE CTI'Y COUNCII. OF THE CITY OF ASPEN, COLORADO, SUBMITTING TO THE ELECTORATE OF THE CITY OF ASPEN CERTAIN QUESTIONS AT THE NOVEMBER 4, 2008, SPECIAL MUNICIPAL ELECTION. .WHEREAS, the City Council desires to place, before the electorate of the City of Aspen certain ballot questions; and . WHEREAS, the ,City Council is authorized pursuant to Section 5.7 of the Aspen City Charter to; on its, own motion, submit questions to a vote of the electorate; and WHEREAS, the election provisions of Article X, Section 20(3) of the Colorado Constitution requires that certain financial, ballot issues be decided only in a state general election, biennial local election, or on the first Tuesday in November of odd numbered years. NOW, THEREFORE, BE Tt RESOLVED. BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1. The following question shall be submitted to the electorate at the November 4, 2008, municipal election: CITY OF ASPEN -EXTENSION OF EXISTING 0.45% SALES TAX -AFFORDABLE HOUSING AND DAY CARE. SHALL THE CTI`Y OF ASPEN'S EXISTING 0.45% SALES TAX FOR AFFORDABLE HOUSING AND DAY CARE, WHICH IS SCHEDULED TO EXPIItE ON JUNE 30, 2010, BE EXTENDED THROUGH DECEMBER 31, 2040; AND SHALL THE REVENUES FROM SUCH SALES TAXES AND THE EARNINGS THEREON BE COLLECTED, RETAINED AND SPENT AS AVOTER-APPROVED REVENUE CHANGE WTI'HOUT LIMTfATION UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION (TABOR) OR ANY OTHER LAW? YES _ NO Section 2. The following question shall be submitted to the electorate at the November 4, 2008, municipal election: CITY OF ASPEN -AFFORDABLE HOUSING BOND AND EXTENSION OF REAL ESTATE TRANSFER TAX. SHALL CITY OF ASPEN DEBT BE INCREASED BY UP TO $16,000,000, WITH A MAXIMIJM REPAYMENT COST OF UP TO $31,320,000, AND SHALL CITY TAXES BE INCREASED BY UP TO $1,044,000 ANNUALLY FOR THE PURPOSE OF REIIvIBURSING THE CITY FOR THE COSTS OF ACQUII2ING LAND OR EXISTING HOUSING UNITS FOR AFFORDABLE HOUSING; SHALL THE CITY'S EXISTING 1.0% REAL ESTATE TRANSFER TAX, WHICH IS SCHEDULED TO EXPIItE ON DECEMBER 31, 2024, BE EXTENDED THROUGH DECEMBER 31, 2040; SHALL THE CITY BE AUTHORIZED TO USE THE REVENUES FROM THE RENTAL OR SALE OF AFFORDABLE EMPLOYEE HOUSING, THE REAL ESTATE TRANSFER TAX AND THE CITY'S EXISTING 0.2025% SALES TAX FOR AFFORDABLE HOUSING (AS TT PRESENTLY EXISTS OR AS IT MAY BE EXTENDED BEYOND THE PRESENT EXPIIATION DATE OF JUNE 30, 2010), TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON SUCH BONDS AND TO FUND ANY RESERVES THEREFOR; ALTHOUGH THE CITY ANTICIPATES THAT THE REVENUES FROM THE RENTAL OR SALE OF AFFORDABLE EMPLOYEE HOUSING, THE REAL ESTATE TRANSFER TAX, AND THE CITY'S EXISTING 0.2025% SALES TAX FOR AFFORDABLE HOUSING (AS TT PRESENTLY EXISTS OR AS IT MAY BE EXTENDED BEYOND THE PRESENT EXPIRATION DATE OF JUNE 30, 2010), WILL BE SUFFICIENT, IF THE CITY COUNCIL DETERMINES THAT SUCH REVENUES MAY NOT BE SUFFICIENT, SHALL THE CITY BE AUTHORIZED TO LEVY AD VALOREM PROPERTY TAXES, WITHOUT LIMITATION AS TO RATE OR AMOUNT OR ANY OTHER CONDITION, TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND. INTEREST ON SUCH BONDS AND TO FUND ANY RESERVES FOR THE PAYMENT THEREOF; SHALL SUCH BONDS BEAR INTEREST, MATURE, BE SUBJECT TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND BE ISSUED, DATED AND SOLD AT SUCH TIME OR TIMES, AT SUCH PRICES (AT, ABOVE OR BELOW PAR) AND IN SUCH MANNER AND CONTAIN SUCH OTHER TERMS, NOT INCONSISTENT HEREWITH, AS THE CITY COUNCIL MAY DETERMINE; AND SHALL THE REVENUES FROM SUCH PROPERTY, REAL ESTATE TRANSFER AND SALES TAXES AND THE EARNINGS ON SUCH REVENUES AND THE PROCEEDS OF SUCH BONDS BE A VOTER-APPROVED REVENUE CHANGE THAT THE CITY MAY COLLECT, RETAIN AND EXPEND WITHOUT LIMTI'ATION UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION (TABOR) OR ANY OTHER LAW? YES _ NO z Section 3. The following question shall be submitted to the electorate at the November 4, 2008 municipal election: The City of Aspen plans to design and construct Phases Two and Three of the Burlingame Ranch Affordable Housing Project per Resolution #82, Series of 2008, in substantial compliance with the recommendations of the Citizen's Budget Task Force, the conclusions of the Performance Audit, and suggestions of the Construction Experts Group. Voter approval for project funding will likely be sought in May, 2009. Shall the density of the units be kept at the current proposed unit count of 236 units or increased up to a maximum of 300 units? 236 units _ Up to 300 units 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 EXffiBTT A FORM OF BALLOT QUESTION SHALL THE CITY'S EXISTING 1.0% REAL ESTATE TRANSFER TAX, WHICH IS SCHEDULED TO EXPIRE ON DECEMBER 31, 2024, BE EXTENDED THROUGH DECEMBER 31, 2040; AND SHALL THE REVENUES FROM SUCH REAL ESTATE TRANSFER TAX AND THE EARNINGS ON SUCH REVENUES BE A VOTER- APPROVED REVENUE CHANGE THAT THE CTI'Y MAY COLLECT, RETAIN AND EXPEND WITHOUT LIMITATION UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION (TABOR) OR ANY OTHER LAW? 4612.5462-0098.5 RESOLUTION NO. B2 (Series of 2008) bCb A RESOLUTION OF THE CITY COUNCIL OF THE CTI'Y OF ASPEN, COLORADO, SUBMITTING TO THE ELECTORATE OF THE CITY OF ASPEN A CERTAIN QUESTION AT THE NOVEMBER 4, 2008, SPECIAL MUNICIPAL ELECTION. WHEREAS, the City Council desires to place before the electorate of the City of Aspen a certain ballot question; and WHEREAS, the City Council is authorized pursuant to Section 5.7 of the Aspen City Charter to, on its own motion, submit questions to a vote of the electorate. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1. The following question shall be submitted to the electorate at the November 4, 2008, municipal election: CITY OF ASPEN -SALARY INCREASES FOR OFFICES OF COUNCILMEMBERS AND MAYOR Shall Ordinance No. ~ ,Series of 2008, be approved? This ordinance proposes to set the salary of the Mayor at 75% of the salary set forth by state statute for members of the Board of County Commissioners for Pitkin County; and, the salary of individual members of the City Council at 66.67% of the salary set forth by state statute for members of the Board of County Commissioners for Pitkin County. Adoption of these new salaries would increase the salary of the Mayor from $2,325.00 per month to $4,531.25 per month and increase the salaries of council members from $1,700.00 per month to $4,027.98 per month. YES _ NO 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 IPW-saved: 8/15/2008-333-G:\john\word\resos\ballot-08-1 lb.doc 2 IX ~ ORDINANCE NO. ~-~/ (Series of2008) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, INCREASING THE COMPENSATION FOR THE OFFICES OF MAYOR AND CITY COUNCILPERSON. WHEREAS, Section 3.6 of the Home Rule Charter for the City of Aspen provides that members of the City Council shall receive such compensation, and the Mayor such additional compensation, as the City Council shall prescribe by ordinance; and WHEREAS, the current levels of compensation for the Mayor ($2,325.00 per month) and members of City Council ($1,700.00 per month) were established in January 2001, and have not been adjusted since that time; and WHEREAS, the City Council desires to provide a reasonable and equitable increase in the levels of compensation provided to the Mayor and members of the City Council so as to reflect not only the increase in the cost of living since 2001, but the increase in the commitment of time necessarily required to fulfill the duties of such elective offices; and WHEREAS, the City Council fords that the current compensation for the Mayor and members of Council even after being adjusted for increases in the CPI are not sufficient to encourage persons from all economic backgrounds to participate in public service; and WHEREAS, increasing the compensation of the Mayor and members of Council may provide one incentive for citizens with modest financial incomes to consider public service; and WHEREAS, the City Council desires to establish an annual salary for its members and the Mayor that is commensurate with the compensation paid to the individual members of the Board of County Commissioners for Pitkin County pursuant to § 30-2-102, C.R.S. and which increases in accordance with increases provided by the State Legislature by amendments to § 30-2-102, C.R.S. NOW, THEREFORE, BE TI' ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1. The monthly compensation for the office of Mayor shall be 75% of the salary set forth for individual members of the Boazd of County Commissioners for Pitkin County in § 30-2-102, C.R.S. (2008.) The monthly compensation for individual members of City Council shall be 66.67% of the salary set forth for individual members of the Boazd of County Commissioners for Pitkin County in § 30-Z-102, C.R.S.(2008). In addition, compensation for the office of Mayor and for City Council members shall be increased by an amount sufficient to allow those officeholders to participate in health insurance_benefits as follows. The Mayor and each member of Council shall be entitled to receive a stipend in addition to their monthly compensation equal to the cost of health insurance benefits authorized for regulaz full time City employees; provided, however, that the stipend is actually used to purchase health insurance through the City or a third party insurer and that the stipend does not exceed the cost of health insurance premiums for a single person. All increases in compensation. as set forth herein shall become effective upon the first regular City Council meeting in June 2008. Section 2. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a sepazate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. z Section 3. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. A public hearing on the ordinance shall be held on the _ day of , 2008, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISFIED as provided by law by the City Council of the City of Aspen on the day of , 2008. Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk FINALLY adopted, passed and approved this _ day of Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk 1PW-saved: 8/7@008-776-G:\john\word\ords\salaries council 2008.doc 3 lx d RESOLUTION NO~~ (Series of 2008) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, SUBMITTING TO THE ELECTORATE OF THE CITY OF ASPEN A CERTAIN QUESTION AT THE NOVEMBER 4, 2008, SPECIAL MUNICII'AL ELECTION. WHEREAS, Section 13.10 of the Home Rule Charter authorizes the City Council to propose amendments to the City Charter in accordance with the State Constitution; and WHEREAS, the State Constitution requires that Home Rule Charter amendments be made by the adoption of an ordinance and thereafter approved by the voters; and WHEREAS, the City Council has proposed an ordinance to amend the Aspen Home Rule City Charter and desires to refer to the voters a ballot question seeking voter approval of the proposed amendment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1. The following question shall be submitted to the electorate at the November 4, 2008, municipal election: CITY OF ASPEN -CHARTER AMENDMENT -COMPENSATION OF MAYOR AND MEMBERS OF COUNCIL Shall Ordinance No..2 r ,Series of 2008, be approved? This ordinance proposes to amend Section 3.6 of the City of Aspen Home Rule Charter by deleting the prohibition against increasing or decreasing the compensation of the Mayor or any Member of Council during his or her term in office and requiring all proposed increases or decreases in salary of the Mayor or Members of Council to be approved by the voters. YES _ NO 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 JPW-saved: 8/19/2008-323-G:\john\word\resos\ballot-08-11c.doc 2 axe ORDINANCE N0. a~ (SERIES OF 2008) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE CITY OF ASPEN HOME RULE CHARTER BY AMENDING SECTION 3.6 RELATING TO THE COMPENSATION OF THE MAYOR AND MEMBERS OF COUNCIL. WHEREAS, the City Council desires to amend certain portions of the City of Aspen Home Rule Charter relating to the compensation of the office of Mayor and Members of the City Council; and WHEREAS, the City Council desires to delete the provision in the current City Charter that prohibits the compensation of the Mayor and Members of Council to be increased or decreased during their term in office; and WHEREAS, the City Council desires to amend the City Charter to require that all increases and decreases in the compensation of the Mayor and Members of Council be approved by the voters. NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF ASPEN CITY COUNCIL AS FOLLOWS: Section 1 That Section 3.6 of the Home Rule Charter of the City of Aspen shall be and hereby is amended to read as follows: 3.6. Compensation. The members of the council shall receive such compensation, and the mayor such additional compensation, as the council shall prescribe by ordinance; provided, however, that any ordinance proposing an increase or decrease in compensation shall be approved by a majority of the voters voting thereon. Increases or decreases in compensation shall become effective on the date of the first organizational meeting of the city council following each general municipal election. The mayor and councilmen may, upon order of the council, be paid their actual and necessary expenses incurred in the performance of their duties of office. Page 1 of 3 Section 2• This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 3• If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a sepazate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 4• That this ordinance shall become effective only upon approval of the electorate of the City of Aspen at the special municipal election to be held on November 4, 2008, pursuant to Section 13.10 of the Home Rule Charter of the City of Aspen; and, if so approved by the electorate, shall not become effective until the fast organizational meeting following the general municipal election in May 2009. A public hearing on this ordinance shall be held on the 26a' day March, 2008, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 12a' day of Mazch 2008. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Page 2 of 3 .. FINALLY, adopted as amended, passed and approved this Attest: Kathryn S. Koch, City Clerk day of March 2008. Michael C. Ireland, Mayor JPW-saved: 8/19/2008-550-G:\john\word\ords\charter-amd-2008.doc Page 3 of 3