HomeMy WebLinkAboutagenda.council.regular.20091207CITY COUNCIL AGENDA
December 7, 2009
5:00 P.M.
Call to Order
II. Roll Call
III. Scheduled Public Appearances
Community Development Building Department Award
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT
on the agenda. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters maybe adopted together by a single motion)
a) Request for Banners on Light Poles Main Street -Food & Wine & Gay Ski Week
b) Resolution #100, 2009 -Nordic Shop Lease
c) Agreement Aspen Sanitation District Reimbursement
d) Resolution #101, 2009 -Adoption of Financial Policies
e) Resolution #102, 2009 - 211 West Hopkins Ordinance #48 Negotiation Extension
f) Resolution #103, 2009 - ACRA Marketing Agreement
g) Board Appointments
h) Minutes -November 17, 23, 2009
VII First Reading of Ordinances
a) Ordinance #27 2009 -Fees for 2010 P.H. 1/11110
b) Ordinance #30 2009 - Comcast Franchise Agreement P.H. 1/11/10
c) Ordinance #28, 2009 -Bidwell/Mountain Plaza Subdivision P.H. 1/11/10
d) Ordinance #29, 2009 - 211 West Hopkins Ordinance #48 Negotiation P.H. 2/8/10
VIII. Public Hearings
a) Ordinance #26, 2009 - 630 E. Hyman Landmark Ordinance 48 Negotiation
b) Resolution #96, 2009 -Extension of Vested Rights -South Aspen Street
c) Resolution #78, 2009 -Wheeler Opera House Conceptual PUD
IX. Action Items
X. Adjournment
Next Regular Meeting Januarv 11, 2010
COUNCIL'S ADOPTED GUIDELINES
/ Stick to top priorities
/ Foster a safe, supportive, innovative work environment that encourages creativity and acceptable
risk-taking
/ Create structure and allow adequate time & resources for citizen processes
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
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MEMORANDUM
TO: Mayor and City Council
FROM: Kathryn Koch, City Clerk
DATE: November 27, 2009
RE: Request to Use Main Street Light Poles -Food and Wine
Aspen Gay Ski Week
REQUEST OF COUNCIL: Staff has received two requests for banners on Main street
light poles.
1. ACRA and Food and Wine request Council approval to place banners on lamp
posts along Main Street for their event in June 2010; the banners would be up June 8 to
June 22°d. See attached letter from ACRA.
2. Roaring Fork Gay and Lesbian Community fund request for banners January 17
to 24, 2010. The banner will be the rainbow flag as in 2009.
PREVIOUS COUNCIL ACTION: February 23, 2009, Council approved banners on
Main Street light poles for ACRA/Food and Wine.
December 8, 2008, Aspen Gay & Lesbian Community Fund requested banners on Main
Street Light posts for the 2009 Gay Ski Week, which Council approved.
Both Food and Wine and Gay Ski Week have requested and received permission for
banners on Main street light poles in the past.
In 2007 and 2008 staff reminded Council they were directed to work on a code
amendment to the sign code (see discussion). In October 2009, Council approved
banners on Main street light poles for the World Cup.
In December 2001, Council adopted policies regarding signs on public property. Section
IV(E) Eligibility for Banners and Flags on Main Street Light Posts states:
Only applicants for significant anniversaries (25, 50, 75 and 100) of local
non-profit organizations shall be eligible for consideration pursuant to this
policy. All other requests from other organizations or for other types of
events shall be forwarded to City Council.
In May 2003, Council voted to allow Food and Wine banners in the commercial core and
NOT allow them on Main street. In a January 2003 work session with the special event
committee, Council agreed that allowing harmers on the light poles in the commercial
core (not Main Street) was up to the committee.
In May 2004 Council approved banners on light poles on Main Street for Food and Wine.
At that meeting, Council discussed amending the policy regarding Main Street banners to
allow banners for annual events that support the community. The policy has not been
amended (see discussion section)
DISCUSSION: Council has approved requests for banners on light poles for World
Cup, for X-Games, for Broncos winning the Superbowl.
Drew Alexander, community development department, is taking code amendments to
P&Z this month. We have requested eligibility be amended to state:
Banners hung from the Main Street light posts shall be permitted for
significant anniversaries beginning at the organization's tenth (10th) year
of local nonprofit organizations and for prominent local, regional, state
or national events. Prominent local, regional, state or national events
shall include recurring annual events or events that are considered
significant to a large segment of the community.
This wording is currently in the "Purpose" section of the code but not in the "Eligibility"
section.
RECOMMENDED ACTION: Allowing banners on Main Street is currently a Council
decision. Food and Wine has had banners along Main Street 6 out of the last 7 years (one
was a significant anniversary). Staff recommends allowing Food and Wine and Gay Ski
Week to place banners on the light posts on Main Street as each of these organizations fit
the proposed code amendment.
ALTERNATIVES: If Council denies banners on light posts along Main Street for either
or both organizations, they will still be able to put banners on the light poles in the
commercial core.
PROPOSED MOTION: By approving the consent calendar, Council is approving Food
and Wine banners on light posts along Main street for their June 2010 event and Gay Ski
Week January 17 to 24, 2010 and to direct staff to draft changes to the 2001 sign policy
on public property Section IV(E) Eligibility for Banners and Flags on Main Street Light
Posts.
CITY MANAGER
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Attachments:
Letter from ACRA - 2009
e-mail request from Gay Ski Week
ASPE~NC CHAMBER
RESORT ASSOCIATION
November 9, 2009
Ms. Kathryn Koch,
City Clerk
City of Aspen
130 S. Galena St.
Aspen, CO 81611
Dear Kathryn:
I am writing to you on behalf of the FOOD & WINE Classic in Aspen and the Aspen Chamber Resort Association. The
2010 event takes place June 18-20, 2010 and we are looking forward to another successful year.
To honor FOOD 8 WINE Magazine's longstanding commitment to the Aspen community, we would like to request
council's special consideration in allowing the FOOD & WINE Classic in Aspen to place lamp post banners on Main Street
and in the commercial core on all available brackets.
Previous approval of this request has been granted since 2003. Two of past seven years approval allowed placement in
just the commercial core, the remaining five years (including the FOOD & WINE Classic's 25rh anniversary) allowed
placement in both the commereial core and on Main Street. We are requesting placement in both the commemial core
and Main Street for 2010.
We truly appreciate Council's consideration of our request again. We do understand that the City's current policy allows
for placement for significant anniversaries only. Given FOOD & WINE'S consistent powerful and positive economic impact
on our community, we are asking for special consideration to this policy.
Council's approval over the past several years of the X-Games and Wodd Cup banners for events not taking place on
significant anniversary years has demonstrated flexibility and support by the City for these important events. We would
like to ask council to do the same for one of the community's long-standing favorite events, the 28'" Annual FOOD &
WINE Classic in Aspen.
The Classic brings an educated and affluent attendee who loves Aspen and returns year after year for the experience.
Ninety-three percent of participants say the Classic exceeds or meets their expectations. The average stay is five days;
the average spent per attendee $8,553; and the average household income is $893,300 (Source: 2007 Classic Survey
conducted by Beta Research Group.) This event clearly attracts a very desirable demographic to the Aspen Community.
We do respect council's efforts to develop a reasonable policy on these lamp post banners. Our request is to place
tasteful and subtle banners throughout the commercial core and along Main Street that will enhance the Classic in Aspen
experience.
We appreciate your consideration in these matters. Please help us to continue to support the FOOD & WINE Classic in
Aspen.
Sincerely,
Jen rferAlbdghtCarney
Vice President of Event Marketing -ACRA
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(
Debbie Braun Dev Padgett
President-ACRA ProducerSpecialProjects-
Food & one Magazine
Kathryn Koch
From: Bryan Gonzales [bgonzales@gayskiweek.com]
Sent: Monday, November 30, 2009 11:51 AM
To: Kathryn Koch
Subject: Gay Ski Week Banners
Kathryn,
Aspen Gay Ski Week would like to put rainbow flag banners up and down Main Street and the
Commercial Core during Gay Ski Week this year (January 17-24, 2010).
The banners would be the same as last year: a simple rainbow flag.
Can you please let us know if this is possible? And how many would we need to fill Main
St. and CC?
Thank you!
Bryan Gonzales
Aspen Gay Ski Week
(970) 948.7743
1
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MEMORANDUM
TO: Mayor and City Council
THRU: Steve Barwick, City Manager S~
THRU: John Worcester, City Attorney
THRU: Jeff Woods, Parks and Recreation Manager
THRU: Austin Weiss, Trails Coordinator
FROM: Steve Aitken, Director of Golf
DATE: November 24, 2009
RE: Nordic Shop Lease Agreement
SUMMARY: Staff requests approval of a 5 yeaz seasonal lease agreement with Ute
Mountaineer Inc. for the operation of the Nordic shop at the Aspen Golf Course. The
lease months aze from November 1 to April 1 of each year, for five consecutive yeazs.
This new lease agreement will begin on November 1, 2010 and end on April 1, 2015.
Staff is requesting approval of the lease agreement at this time, so that orders for
equipment can be placed for the following season.
DISCUSSION: The current Nordic shop lease agreement with Ute Mountaineer will
expire on April 1, 2010. The Nordic shop lease was put out to bid in the July of 2009.
Ute Mountaineer Inc. submitted the only proposal for the operation. The lease agreement
provides for retail and rental operations along with lessons from beginner to advanced.
Ute Mountaineer Inc. has operated the Nordic shop at the golf course for over 20 years.
The staff and ownership at "The Ute" have a great passion for hiking, snowshoeing, and
Nordic skiing in the Aspen community. The Ute volunteers or provides free equipment
for many local events including the Cross Country Extravaganza, Bonfire Progressive
Dinner, Owl Creek Chase and school activities. Through coordinated efforts with the
Aspen Nordic Council, Ute Mountaineer and the City of Aspen, Nordic participation is
continuing to grow. The trail system maintained in the winter for Nordic programs is
considered the best in the world.
FINANCIAL IMPLICATIONS: As in the current lease, Ute Mountaineer agrees
to pay 6% (six percent) of gross revenues less returns or discounts to the City of Aspen
each season. This percentage rent provides for approximately $15,000 annual revenue
each yeaz to the City. For the five year term of the lease the estimated revenues for the
lease would be $75,000.00
ALTERNATIVES:
PROPOSED MOTION: I move to approve the new lease agreement with Ute
Mountaineer Inc. for the Nordic seasons November 1, 2010 to April 1, 2015.
CITY MANAGER
COMMENTS:
RESOLUTION #~Q~
(Series of 2009)
A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE
CITY OF ASPEN, COLORADO, AND THE UTE MOUNTAINEER SETTING
FORTH THE TERMS AND CONDITIONS REGARDING THE NORDIC
CENTER 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 The Ute Mountaineer, 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 lease
agreement between the City of Aspen, Colorado, and The Ute Mountaineer
regarding the Nordic Center at the City of Aspen Golf Course, 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 December 7, 2009.
Kathryn S. Koch, City Clerk
AGREEMENT FOR THE LEASE AND OPERATION
OF
THE NORDIC CENTER AT THE CITY OF ASPEN GOLF COURSE
THIS AGREEMENT entered into at Aspen, Colorado, this day
of , 2010, by and between the CITY OF ASPEN, COLORADO,
a municipal corporation and home-rule city ("hereinafter "City"), and THE UTE
MOUNTAINEER, INC., a Colorado corporation (hereinafter "Operator").
WITNESSETH:
WHEREAS, the City is the owner of the Aspen Championship Golf Course and golf club
house in Aspen, Colorado, and desires to contract with an operator to provide certain services
during the winter seasons for the operation of a nordic center at the building commonly known as
the golf club house building, hereinafter referred to as the "Premises"; and
WHEREAS, Operator now operates a retail sporting goods shop in Aspen, Colorado, has
experience in managing ski rental operations and cross-country ski instruction and desires to
contract with the City to provide the above-described services; and
WHEREAS, Operator has agreed to provide certain services relative to the winter use of
the golf course, as well as provide services regarding the general operation of the nordic center;
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties agree as follows:
1. Term. City hereby grants Operator the exclusive right to use the Premises for the
period of November 1, through April 1, of each calendar year beginning on November 1, 2010,
and extending through April 1, 2015.
2. Premises. The Premises subject to this Lease Agreement shall be the
approximately 2,555 square feet of offices, restrooms/locker rooms, storage rooms, repair room
and open area space located within the building commonly known as the golf pro shop building
and further described in Exhibit "A" which is attached hereto and incorporated herein by this
reference.
3. Use. The Premises may be used by Operator solely for the purpose of operating a
nordic center and providing services related thereto, including, but not limited to, retail sales of
nordic skiing equipment, clothing and supplies, for renting nordic skiing equipment to the public,
for storage facilities, for use as a nordic center, for nordic skiing lessons, for any and all uses
reasonably attendant to nordic skiing. Operator shall not use the Premises for any other purposes
without the City's written consent. Operator's use and occupancy of the above-described
Premises shall comply with the rules, regulations and ordinances of any governmental authority
having jurisdiction over the Premises or the activities performed thereon. Additionally, Operator
shall not use the Premises in any manner that will create an increase in the rate of insurance or a
cancellation of any insurance policy, even if such use may be in furtherance of Operator's retail
sales. Operator shall not keep, use or sell anything prohibited by any policy of fire insurance
covering the Premises. Operator agrees to cooperate with the City in determining the storage
needs the City during the winter season and to reasonably accommodate such needs provided that
any such accommodation does not interfere with Operator's rights hereunder.
4. Time of Occupancv Acceotance and Surrender of Premises. Operator shall be
entitled to use and occupy the Premises during the winter skiing season as set forth at Pazagraph
1 herein. Occupancy of the Premises by the Operator shall be construed as recognition that the
Premises are in a good state of repair and in sanitary condition. Operator shall surrender the use
and occupancy of the Premises on or before April 1. (The April 1 date is an approximate date for
move out. Associated spring weather will determine actual move out date. Move out date could
be earlier or later than April 1 depending upon golf course or Nordic track conditions.) The
provision herein for use and occupancy of the Premises may be varied on written understanding
of the parties. Operator shall coordinate with the City to insure change in possession is orderly
and timely in accordance with the agreement with the City. A representative of the City shall
inspect the Premises at the end of each season's occupancy both summer and winter, with a
representative Ute Mountaineer, Inc. to assess if any repairs aze necessary and who shall be
responsible for them.
5. Rent. Operator agrees to pay six percent (6%) of all gross revenues as defined
herein.
i) Operator shall pay his first installment of percentage rent on or before
the fifteenth (15th) day of the calendar month immediately after the one in which
the percentage rent became effective, and thereafter it shall pay the required
percent of each month's sales by the fifteenth (15th) day of the following month.
Operator shall also submit to City an itemized statement of gross sales (as defined
below) and sales tax report for the preceding month on or before the fifteenth
(15th) day of each calendar month during the term of this Lease and any renewal,
extensions, or holding over hereunder.
ii) In addition, within thirty (30) days after the end of each Lease Year
(November 1 through November 1), Operator shall deliver to City a written
statement signed by a certified public accountant or by some other person
acceptable to City, setting forth the amount of Operator's gross sales for the
preceding Lease Year. The accountant or other person shall certify that the gross
sales have been computed in accordance with the definition given below, and the
statement shall be sufficiently detailed to show it was in fact prepared in
accordance with such definition. If the percentage rent for the Lease Year is more
than the total thereof actually paid by Operator, Operator shall pay the balance due
to City within thirty (30) days of delivery of the annual statement.
iii) The term "gross sales" as used in this Lease Agreement shall mean
the full amount of the actual sales price of all merchandise or services sold for
cash or credit in or from the Leased Premises by the Operator. The figure for
gross sales will include deposits not refunded to customers, orders of any kind
received or filled at the Leased Premises, receipts from vending machines located
upon the Leased Premises, and any other receipts which the Operator ordinarily
would credit to his business. Each credit or installment sale will be treated as a
sale for the full price in the month it is made, and there will be no deductions for
uncollected accounts or bad debts. The following items, if applicable, shall be
deducted from gross sales:
1) refunds or customer discounts included in gross
sales;
2) returns to shippers and manufacturers;
3) sales of trade fixtures or operating equipment;
4) sums received in settlement of claims of loss or damage of
merchandise;
5) retail sales tax recorded at the time of each sale and expressly
charged to the customer;
6) postage charged to customers; and
7) co-operative advertising revenues provided by suppliers.
8) All property and sales taxes paid by Operator.
iv) In operating on the Leased Premises, the Operator agrees to rssue a
serially-numbered duplicate sales slip, invoice, non-resettable cash register
receipt, or other record approved by City, with each sale of any kind. During the
term of the Lease, Operator shall keep accurate records of all his operations.
These records shall conform to generally accepted accounting practices, and shall
include records of gross sales and of receipts and deliveries of all merchandise.
Operator shall keep all the documents relating to Operator's operations for at least
thirty-six (36) months from the end of the Lease Year to which they apply. If any
audit is required, or Operator and City disagree about the rent, Operator will keep
its records until the audit is completed or the disagreement is settled.
v) At any reasonable time, and following at least twenty-four (24)
hours notice in writing to Operator, City or City's authorized representative may
audit any of Operator's records of gross sales. If, when City audits the records for
a Lease Year based on normal accounting procedures, it finds that the Operator
has understated its gross sales for the Leash Year by five percent (5%) or more,
Operator shall be required to pay for the audit, and shall promptly deliver to City
the difference Operator owes it, plus interest on such difference at the rate of eight
percent (8%) per annum from the first day of the current Lease Year to the date
such difference is paid. If such audit discloses that Operator has understated his
gross sales for that Lease Year by five percent (5%) or more, City shall be
permitted to treat such event as a material default hereunder. In this matter, the
report of City's accountant shall be binding and conclusive.
6. Access to Premises. City shall be entitled to enter upon the Premises at all
reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing
any of City's rights hereunder.
7. Duties of Onerator Relative to Ooeration of Nordic Center. During the term of
this Agreement the Operator agrees:
a. To provide the nordic-related services described in this Agreement for
each winter season for which this Lease Agreement is in effect.
b. To employ and maintain for the benefit of the parties, at Operator's own
cost and expense, employees of sufficient number and qualifications to
operate and manage the Premises consistent with the highest professional
standards of quality and courtesy.
c. To perform the following general duties, at the discretion of Operator:
i. Operate a ski school which will offer programs for skiers aged
three through senior citizen.
ii. Establish a senior citizens program.
iii. Maintain a wide range rental inventory sufficient to meet the
projected needs and demands of the programs offered.
iv. Operate as a nordic center to provide information and to act as a
clearing house for nordic activities and to coordinate with the
Aspen/Snowmass nordic Council to maximize exposure and use of
the nordic trail system.
d. To keep full records and accounts in regazd to the operation and
management of the Premises, which records and accounts shall be
available at the end of the winter season for inspection by the City's
auditors and/or Finance Director.
e. To make available for retail sale such merchandise as is commonly sold in
nordic-oriented retail stores; Operator agrees to maintain an adequate
inventory of such merchandise. Operator shall devote its best energies and
adequate time to the promotion of sales at the Premises and may engage in
similar sales at its business locations in the City of Aspen, provided such
off-premises sales do not interfere with Operator's duties hereunder.
f. To clear those decks and stairs of snow that provide reasonable access to
the Premises, These areas include stairway on West Side of building
leading to Nordic Shop and main stair way to front doors of clubhouse.
g. Cleaning of bathroom in locker room area to be provided by Nordic shop
lease holder. Cleaning of Bathrooms and foyer on upper level to be
provided for by the restaurant leaseholder Wednesday,Thursday, Friday
Sunday and by the Nordic Shop lease holder on Saturday, Sunday,
Monday and Tuesday.
8. Duties of the City Relative to the Nordic Center. During the term of this
Agreement the City agrees:
a. To maintain the ski tracks and the teaching tracks on the golf course
property from Thanksgiving until April 1. As Operator is largely
dependent on the trail system for its revenues, should the City be unable to
continue the maintenance of the trails for any reason Operator shall be
released from its obligations under the lease until such time as the City is
able to resume its duties in this regazd.
b. To permit Operator to use the Premises for Operator's sole use and
occupancy with respect to its duties and privileges under this Agreement.
c. To plow or arrange for the plowing of the entrance to the Premises from
Highway 82 and an area adequate for parking for customers of Operator
and users of the ski track courses on the adjacent golf course. Only excess
snow from the golf lot may be permitted to be stored in a portion of the
Golf/Nordic lot during those years when snowfall is excessive. No other
snow shall be stored for removal or spring melt in this lot.
d. City shall maintain and cleaz all paths and trails serving the Leased
Premises.
e. No business including the City shall store equipment or vehicles in this lot.
9. Maintenance and Repairs. Operator, at its sole expense, shall keep the Premises,
including stairs and covered walkways, in a good, clean and safe condition and do all work and
repair necessary to maintain same and to keep it from deteriorating, with the exception of wear
and tear and aging consistent with normal use as a nordic skiing center as described herein.
10. Utilities and Security Svstem. Operator shall pay $250.00 monthly for its share of
charges for utilities that are not separately metered or contracted for separately by Operator.
Those shared utilities include gas, electricity, water, sewer, and trash removal. Utilities not
covered shared amount shall include telephone, cable televisions and any other utility or
maintenance services used by the Operator in or about the Leased Premises during the term of
this Lease, including any maintenance and cleaning fees for common areas of the building.
Security System has been installed at the expense of City, but maintenance and service charges
for the security system shall be paid by Operator during the time that it occupies the building.
11. Personal Property. All personal property and trade fixtures placed on the
Premises shall be at Operator's sole risk and City shall not be liable for damage to or loss of such
personal property or trade fixtures azising from the acts or neglect of Operator, its agents or
employees. Any personal property or trade fixtures of Operator or anyone claiming under
Operator, which shall remain on the Premises after the date upon which the Premises shall be
surrendered shall be deemed to have been abandoned and may be retained by City as its property
or disposed of by City in such a manner as City sees fit.
12. Taxes. In the event any taxes are levied and assessed upon the Premises or upon
the improvements, fixtures or personal property of the Operator during the term of Operator's
occupancy of the Premises or arising therefrom, or upon the leasehold or possessory interests as
created through this lease, Operator shall be solely responsible to satisfy and pay all such taxes in
a timely fashion. Operator shall not allow any liens for taxes or assessments to exist with respect
to the Premises, except that Operator may permit such taxes or assessment to remain unpaid
while pursuing any good faith contest or appeal of same.
13. Indemnification. Operator agrees to indemnify and hold hazmless the City, its
officers and employees, 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 similar loss, which arise out of or
are in any manner connected with this Agreement, 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 omission, error, or
negligence of the Operator, any subcontractor of the Operator, or which arises out of any
workmen's compensation claim of any employee of the Operator or of any employee of any
subcontractor of the Operator.
14. Public Liability Insurance. Operator agrees to furnish City with certificate(s) of
insurance as proof that it has secured and paid for a policy of public liability insurance covering
all public risks related to the leasing, use, occupancy, maintenance, operation or location of the
Premises. The insurance shall be procured from a company authorized to do business in the State
of Colorado and be satisfactory to City. The amount of this insurance, without co-insurance
clauses, shall not be less than the maximum liability that can be imposed upon the City of Aspen
under the laws of the State of Colorado found at C.R.S. § 24-10-101 et sea., as amended. At
present, such amounts shall be as follows:
$150,000.00 for any injury to one person in any single occurrence;
$600,000.00 for any injury to two or more persons in any single occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set
forth a[ C.R.S. 24-10-114, as amended.
15. Premises Insurance. During the full term of this Agreement, Operator, at its sole
cost and expense, shall also cause all of the furniture, fixtures, and equipment in the premises to
be kept insured, without co-insurance clauses, to the full insurable value against the perils of
wind, storm, hail, lightning, explosion, fire and like perils. "Full insurance value" means the
cost, as of the date of loss, for replacement of the damaged or destroyed property in a new
condition with materials of like size, kind and quality. The insurance shall stand as primary
insurance for the furniture, fixtures, and equipment in the Premises to be procured from a
company authorized to do business in the State of Colorado and be satisfactory to the City. All
policies as required herein shall contain a waiver of subrogation by the insurer against City.
16. Termination Due to Fire or Similar Catastrophe. If, absent negligence or fault on
the part of Operator, the Premises shall be damaged by fire or other catastrophe so as to render
said Premises wholly inoperable, and if such damage is so great that a competent licensed
architect in good standing in Pitkin County, Colorado, as selected by the City within fourteen
(14) days from the date of loss, shall certify in writing to the City and Operator that the Premises,
with reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the
happening of the occurrence of the damage, then this Agreement may terminate and City may re-
enter and take possession. Such a termination of the Agreement shall not forgive Operator's
obligations to return the Premises to City in as good repair as when operator originally assumed
possession thereof, regular and ordinary wear and tear excepting. Alternatively, Operator shall
subordinate its rights and interests in any insurance proceeds as provided for in any insurance
policy as required by this Agreement. If, however, the damage is not such as to prevent
reoccupation and use of the Premises within ninety (90) days, then repairs thereto shall be
undertaken by Operator with all reasonable speed to restore the Premises to its former condition
and the Agreement shall remain in effect. Operator's duties and obligations to provide services
and to pay rent to the City as herein set forth shall be suspended during those time periods
wherein the Premises are unfit for normal business activities due to fire or other catastrophe,
and/or repair activities associated therewith.
17. City to be Named a Co-Insured or Additional Insurance. Operator shall name City
as co-insured or additional insured on all insurance policies and such policies shall include a
provision that written notice of any non-renewal, cancellation or material change in a policy by
the insurer shall be delivered to City thirty (30) days in advance of the effective date.
18. Repairs and Alterations by Onerator. Operator, upon City's written consent, may,
at its own expense, make reasonable and necessary alterations or improvements to the Premises.
All alterations, additions and improvements shall be performed in a workmanlike manner, in
accordance with all applicable building and safety codes, and shall not weaken or impair the
structural strength or lessen the value of the Premises. All alterations, additions and
improvements made in or to the Premises shall be the property of City and remain and be
surrendered with the Premises upon termination of this Agreement. Operator agrees that prior to
any construction or installation of alternations, additions or improvements, Operator shall post on
the Premises in a conspicuous place a notice of non-liability for mechanic's lien as specified at
C.R.S. Section 38-22-105 on behalf of the City and shall notify City of such posting and the
exact location of same. Perfection of a mechanic's lien against the Premises as a result of
Operator's acts or omissions maybe treated as a material breach of this lease.
19. Repairs and Alterations by City. City reserves the right, from time to time, at its
own expense and by its officials, employees and contractors, to make such alterations,
renovations or repairs in and about the Premises, other than those noted above as required by
Operator, as City deems necessary or desirable and Operator covenants to make no claim against
City for any interference with its interest as herein provided in the Premises. City shall provide
reasonable notice to Operator in advance of any intent to undertake alterations or repairs as
authorized in this paragraph and all work shall be performed at such times as mutually agreed to
between the parties so as to eliminate or minimize any disruption of Operator's business.
20. Condemnation. If during the term of this Agreement, or any renewal of it, the
whole or part of the Premises, or such portion as will make the Premises unusable for the purpose
leased, or the leasehold interest, be condemned by public authority, including City, for public
use, then this Agreement shall cease as of the date of the vesting of title in the Premises in such
condemning authority, or when possession is given to such authority, whichever event occurs
first. Operator shall not be entitled to any part of any condemnation award for the value of the
unexpired term of this Agreement or for any other estate or interest in the Premises, such amount
belonging entirely to City.
21. Assienment of Agreement. Operator shall not assign, pledge, sublease or
otherwise dispose of or encumber this lease, or the leased Premises, without the prior written
consent of the City, which consent shall not be unreasonably withheld. Operator shall, likewise,
not permit any third party to occupy or use the Premises absent the prior written consent of the
City.
22. Signs. Operator shall not place any signs upon the Premises or upon the buildings
except of such design and construction as may be permitted by City. It is understood by the
parties that placement of an identification sign or signs is important and necessary to Operator's
business. Any sign permitted by City shall at all times comply with applicable ordinances, rules
and regulations.
23. Breach by Operator Defined. If Operator shall fail to timely comply with any of
the terms or conditions of this Agreement or any notice given under it, or shall become insolvent,
or shall have or attempt to make an assignment for the benefit of creditors, or if any of its
property be attached and such attachment is not promptly released, or if an execution be issued
against it, or, if a petition be filed by or against it, to have it adjudicated a bankrupt, or if a trustee
or receiver shall be created or appointed to take charge of its assets, or if it shall abandon the
Premises for a period of more than seventy-two (72) hours then at any time afterwards City may
treat such act or omission as a breach of this Agreement and, at its option, enter into the Premises
and remove all persons and take and retain possession thereof either with or without process of
law.
24. City's Remedy fox Breach. Any breach, default or failure by Operator to perform
any of the duties or obligations assumed by Operator under this Agreement shall be cause for
termination of the Agreement by City in the manner set forth in this paragraph. City shall deliver
to Operator thirty (30) days' prior written notice of its intention to terminate this Agreement,
including in the notice a reasonable description of the breach, default or failure. If within that
thirty (30) days Operator shall fail or refuse to cure, adjustor correct the breach, default or failure
to the reasonable satisfaction of City, the City shall have the right to declare this Agreement
terminated and all rights, powers and privileges of Operator as provided through the Agreement
shall cease, and Operator shall immediately vacate the entire Premises and shall make no claim
of any kind against City by reason of the termination. The thirty (30) days' prior written notice
shall be conclusively determined to have been delivered to Operator by the posting of same upon
the main business entrance to the Premises, or at the time it is deposited in the U.S. Mail,
certified, postage prepaid, addressed to the address set forth at Paragraph 29 herein.
25. Non-Waiver of Rights. Any failure by City to so terminate this Agreement as
herein provided after the breach, default or failure by Operator to adhere to the terms of the
Agreement shall not be deemed or construed to be a waiver or continuing waiver by City of any
rights to terminate the Agreement for any present or subsequent breach, default or failure.
26. Termination by Operator. Operator may terminate this Agreement and be relieved
of all obligations hereunder by providing City thirty (30) days' written notice of its intent to
terminate. Upon receipt of such notice, City may participate in the operation of the nordic center
with Operator to accommodate the transition of the nordic center management from Operator to
the City. Operator shall provide a full accounting of all funds, costs and equipment upon
termination.
27. Non-Discrimination. Operator agrees to comply with all laws, ordinances, rules
and regulations that may pertain or apply to the Premises and its use. In performing under the
Agreement, Operator shall not discriminate against any worker, employee or job applicant, or any
member of the public, because of race, color, creed, religion, ancestry, national origin, sex, age,
marital status, physical handicap, affectional or sexual orientation, family responsibility or
political affiliation, nor otherwise commit an unfair employment practice.
28. 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. To the extent that this Agreement may be construed as
requiring Operator to provide services to or on behalf of City, Operator 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 Operator 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 Agreement. The manner and means of conducting the work are under the
sole control of operator. None of the benefits provided by City to its employees including, bu[
not limited to, workers' compensation insurance and unemployment insurance, are available
from City to the employees, agents or servants of Operator. Operator shall be solely and entirely
responsible for its acts and for the acts of Operator's agents, employees, servants and
subcontractors during the performance of this Agreement. Operator 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 Operator and/or Operator's
employees engaged in the performance of the services agreed to herein.
29. Notice. Whenever this Agreement calls for or provides for notice and notice is
not otherwise specified, the same shall be provided in writing and shall be served on the
person(s) as designated by the parties below, either in person or by certified mail, postage prepaid
and return receipt requested.
For City: Aspen City Manager
130 South Galena Street
Aspen, Colorado 81611
For Operator: Ute Mountaineer, Inc.
308 South Mill Street
Aspen, Colorado 81611
The parties may change or add such designated person(s) or addresses as may be
necessary from time to time in writing.
30. Bindin Effect. All of the terms and conditions as contained in [his Agreement
shall inure to the benefit of and be binding upon the successors and assigns of the parties.
31. Controlling Law. This Agreement shall be enforced and interpreted in accordance
with the laws of the State of Colorado. Any action brought to enforce or interpret this Agreement
shall be brought in the District Court in and for Pitkin County, Colorado. In the event of
litigation between the parties concerning this Agreement or matters arising therefrom, the
prevailing party shall be awarded its costs and reasonable attorney's fees.
32. Entire A reement. This instrument constitutes the entire Agreement by the parties
concerning the Premises and shall supplant and supersede any previous agreements between the
parties pertinent to the Premises. Any prior or contemporaneous oral or written agreement that
purports to vary from the terms as set forth herein shall be void and of no effect.
33. Amendments. Except as otherwise provided herein, this Agreement and all of its
terms and conditions may not be amended or modified absent a written agreement duly executed
by the parties.
WHEREFORE, the parties, through their duly authorized representatives, have executed
this Agreement upon the dates as forth herein.
THE CITY OF ASPEN, COLORADO
By:
Stephen H. Barwick, City Manager
ATTEST:
Kathryn S. Koch, City Clerk
OPERATOR:
UTE MOUNTAINEERING, INC.
By:
EXHIBIT A
The Clubhouse Building is located at 39551 Highway 82, Aspen, Colorado. The premises is
located in a one story building with a basement. The building includes a pro shop, restaurant,
offices, bathrooms, repair rooms and storage areas.
TW-I I/30/2009-57556-G:\john\word\agr\nordic-agr-2010-20IS.doc
G.
MEMORANDUM
TO: Mayor and City Council
FROM: Chuck Bailey, Water Treatment Supervisor
THRU: Phil Overeynder, Utilities Director
DATE OF MEMO: November 30, 2009
MEETING DATE: December 7, 2009
RE: Approval for release of funds from Water Department Savings
to pay Aspen Consolidated Sanitation District for damages
caused by the release of Caustic Soda.
REQUEST OF COUNCIL: Staff requests a release of funds from Water Department savings in
the Amount of $86,808 for clean-up associated with a caustic soda release to Aspen Consolidated
Sanitation District (ACSD).
PREVIOUS COUNCIL ACTION: Council has not made any action as of this point.
BACKGROUND: On November 27`h, 2007 1500 Gallons of Sodium Hydroxide (Caustic
Soda) was released slowly to ACSD. This sort of release had been facilitated before to the
mutual benefit of both the Cities Water Treatment Plant and ACSD facilities. The previous
release has cleaned and scoured sanitary sewer lines and allowed the Water Treatment Plant to
discharge the caustic soda used in the treatment process. The Water Treatment plant began its
discharge at 10:15 AM at a release rate of 7.0 Gal./min. Throughout the early part of the day the
concentration levels of caustic soda raised in the wastewater plant at an allowable rate. At
around 2 P.M. the concentration levels jumped to an unacceptable level for reasons unknown.
The city immediately stopped the controlled release while levels at ACSD facilities continued to
rise. In the Aftermath of the release, ACSD released to the Roaring Fork River higher PH levels
than what Colorado Department of Public Health and Environment (CDPHE) considers
acceptable treatment standards. ACSD experienced damage to its treatment facilities as a result
of the planned caustic soda release. ACSD is requesting that the city provide for reimbursement
of expenses incurred at the districts treatment facility. The Water Department has come up with a
cost sharing plan to offset CDPHE's fine as well as pay for clean-up of the ACSD facility. This
$86,808 pays solely for the cleanup at ACSD.
DISCUSSION: The city's decision to switch from dangerous chlorine gas to less harmful liquid
chlorine bleach in water treatment included the removal of the chlorine scrubber which uses
caustic soda to neutralize a chlorine gas release. When the scrubber was removed to make room
Page I of 2
for liquid bleach storage the caustic soda remaining was to be disposed of. At the time there
were three options for disposal of caustic soda. It could be shipped off-site, it could be sold to
another facility (there were no buyers at that time), or it could be slowly released to the sanitary
sewer, for dilution over the 3+ miles of pipe to the Wastewater Treatment plant. The City had
asked for, and received, permission for the discharge, the city had used this same method in 2003
without any deleterious effects on ACSD's treatment plant.
FINANCIAL/BUDGET IMPACTS: The district's costs associated with this clean-up will be
taken from Water Department savings which as of October 2009 was $211,260. This $86,808
will be used solely to pay for the Clean-up at ACSD.
CURRENT ISSUES: If Council approves staff s recommendation to release funds to pay for
direct damages to ACSD treatment facilities, it still leaves unresolved responsibility for fines
assessed by CDPHE for "treatment violations." The current proposal from ACSD and the city is
to present a Supplemental Environmental Projects (S.E.P.) acceptable to CDPHE that will
enhance the local environment of the Roaring Fork River. Staff is currently working with
CDPHE, to use funds from additional fines in the amount of $30,339, proposed to come from
City appropriations for The City of Aspens recycle re-use water line. If acceptable by CDPHE,
separate Council action may be necessary to implement this improvement project in lieu of a
fine.
ENVIRONMENTAL IMPACTS: Environmental impacts include offsetting any
environmental damages caused by the initial release and clean-up.
RECOMMENDED ACTION: We request the council approve the release of $86,808 from
water department savings for Cleanup associated with the release of Caustic Soda from the City
of Aspen's Water Treatment Plant.
ALTERNATIVES: The only alternative at the present time is to return to ACSD with Council
decision and try to negotiate a lesser percentage of the clean-up costs.
PROPOSED MOTION: I move to approve the release of $86,808 from water department
savings.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Page 2 of 2
MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Director of Finance
THRU: Steve Barwick, City Manager
DATE OF MEMO: November 30, 2009
MEETING DATE: December 7, 2009
RE: Financial Policies for the City of Aspen
~d.
REQUEST OF COUNCIL: The Financial Policies are for City Council to adopt by Resolution.
PREVIOUS COUNCIL ACTION: City Council has previously reviewed the current Financial
Policies.
BACKGROUND: Staff believes the Financial Policies contained in this document represent the
best practices of governmental financial management. Adhering to these policies will help to
ensure that the City maintains balanced and diversified revenues, maximizes the effectiveness
of its expenditures, preserves the safety of the City's public funds and maintains a strong
position in the financial community. The Governmental financial Officers Association (GFOA)
recommends establishment of formal Financial Policies to guide government decision making,
develop approaches to achieve goals, develop a budget consistent with achieving those goals,
evaluate performances and make adjustments. This Comprehensive Financial Policy Document
confirms the City's commitment to financial excellence, full disclosure and responsible financial
management.
DISCUSSION: Please review the section "Fund Balances and Operating Reserves' for more
explanation of the target balances that have been reviewed as part of the budget process.
Please review the section "Carryforward Savings" for an explanation of these funds and how
they are appropriated. Please review the section "Amendments after Adoption" for the tools
available to Council for managing the budget throughout the year.
FINANCIAL/BUDGET IMPACTS: The adoption of the Financial Policies will formalize existing
rules and help regulate the financial transactions throughout the City.
Page 1 of 2
RECOMMENDED ACTION: That Council adopt the Financial Policies through Resolution.
ALTERNATIVES: Continue to operate without updated Financial Policies.
CITY MANAGER COMMENTS
ATTACHMENTS:
Page 2 of 2
RESOLUTION N0. ~~~
Series of 2009
A RESOLUTION APPROVING FINANCIAL POLICIES FOR THE CITY OF ASPEN AND, AUTHORIZING
THE CITY COUNCIL TO APPROVE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, the Financial Policies represents the best practices of governmental financial
management and establishes guidelines for financial planning, expenditures and revenues, and
WHEREAS, the Financial Policies will help ensure the City maintains a balanced and diversified
revenues, maximizes the effectiveness of its expenditures, preserves the safety of the City's
public funds and maintains a strong position in the financial community, and
WHEREAS, the Governmental Financial Officers Association (GFOA) recommends establishment
of formal Financial Policies to guide government decision making, develop approaches to
achieve goals, develop a budget consistent with achieving those goals, evaluate performances
and make adjustments.
NOW WHEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO:
That the City Council of the City of Aspen hereby adopts the attached Financial Policies.
Dated: ,2009
Michael C. Ireland, Mayor
I, Kathryn S Koch, duly appointed and acting City Clerk do certify that the foregoing is true and
accurate copy of the resolution adopted by the City Council on the City of Aspen, Colorado, at a
meeting held , 2009
Kathryn 5. Koch, City Clerk
THE CITY OF ASPEN
Financial
Adopted: December 7, 2009
Prepared by:
City of Aspen -Finance Department
130 South Galena Street
Aspen, Colorado 81611
970-920-5040
Policies
Page 1 of 15
Table of Contents
Exhibit A -Investment Policies ................................................................................................................. 16
Page 2 of 15
m
THE CITY OF ASPEN
INTRODUCTION
The City of Aspen ("City") is a Colorado home rule municipality operating under its City Charter
("Charter"). The City functions under the direction of a City Manager ( Manager )who is appointed by
a Mayor and four-member City Council ("Council"). The State Constitution and the City Charter
provide the basic legal requirements and timelines for policies, while Council approves goals,
ordinances and resolutions that provide more specific direction that responds to the needs of the City.
The City of Aspen Staff ("Staff") has an important responsibility to carefully account for public funds, to
manage municipal finances wisely and to plan and provide for the adequate funding of services desired
by the public and as required by laws, rules or regulations, including the provision and maintenance of
public facilities and improvements. The financial goals and policies set forth in this document are
intended to establish guidelines for the continued financial strength and stability of the City.
FINANCIAL GOALS
Financial goals are broad, timeless statements of the financial management the City seeks to maintain.
A fiscal policy that is adopted, adhered to and regularly reviewed is recognized as the cornerstone of
sound financial management. The financial goals for the City of Aspen are:
• To promote cooperation and coordination within the City in the delivery of services.
• To provide full value for each tax dollar by delivering quality services efficiently and on a cost-
effective basis.
• To preserve quality of life by providing and maintaining adequate financial resources and
capital assets necessary to sustain the desired level of municipal services and meet long-term
needs.
• To respond to changes in the economy, the priorities of governmental and non-governmental
organizations and other changes that may affect financial well-being.
• To minimize financial risk in providing services and maintain a strong credit rating in the
financial community.
• To annually prepare a budget, submit it to Council for approval and publicly issue a budget
document.
• To identify costs and funding sources before recommending approval of capital and operating
budgets.
• To view the budget as a dynamic rather than static plan requiring periodic adjustments as
circumstances change.
Page 3 of 15
FINANCIAL REPORTING AND AUDITING
The City will establish and maintain a high standard of accounting practices. Accounting standards will
conform to Generally Accepted Accounting Principles ("GAAP") as outlined by the Governmental
Accounting Standards Board ("GASB"). Accounting standards will reflect Best Practices recommended
by the Government Finance Officers Association ("GFOA").
After each fiscal year, a certified public accounting firm will conduct an audit of the City records. The
report will include a financial opinion and a management and compliance report on internal controls.
Annually, a comprehensive annual financial report will be prepared for the City. This report shall be
made available to Council, Staff, bond-rating agencies and the general public.
The City will complete periodic reports as needed and requested by the City Manager and Council,
which may include monthly revenue and expenditure reports, quarterly forecast reports, sales tax
reports and an annual budget report.
Multi-year capital improvement projects shall be reported on a multi-year basis, comparing original
budgets, amendments to the budget and all costs over the life of the project. In the case of housing
projects, the original anticipated subsidy and changes to the subsidy over the life of the project shall
also be tracked and reported.
BUDGET OVERVIEW
The preparation and adoption of the annual budget is an important exercise for the entire
organization. Sound financial practice and the desire to maintain a strong credit rating dictate that the
budgets be balanced, constantly monitored and responsive to changes. The process encompasses an
extended period of planning, review, forecasting and priority setting. The City's annual budget is a
comprehensive fiscal plan which spells out how services will be provided and community
improvements will be achieved. Upon its adoption by Council, it becomes a controlling mechanism by
which to measure the resources receipted and expenditures made to meet approved objectives.
The annual budget is a plan which provides the Council and City Manager with the financial
information necessary for the allocation of resources to accomplish the goals and objectives of the
City. The provision of municipal services is accomplished through the budget. The budget, along with
the annual appropriation ordinances, provides the basis for the control of expenditures and sets the
financial guidelines for the City. The basic legal requirements and budget process are defined by the
State Constitution and the City Charter. Council approves the budget objectives.
BUDGET PHILOSOPHY
The City is committed to developing a sound financial plan. The City provides a wide variety of services
to the residents of the community, and it is the responsibility of Council to adopt a budget and manage
the available resources to best meet the service needs for the overall good of the community. To
achieve this, the City:
Page 4 of 15
• Utilizes conservative growth and revenue forecasts;
• Prepares multi-year plans for operations and capital improvements;
• Establishes budgets for all Funds based on Council approved budget assumptions;
• Appropriates the budget in accordance with the City Charter and State Constitution; and
• Develops a budget that provides service levels which reflect the needs of the community.
The City manages a bottom line budget. Funds and Departments are required to allocate resources
and manage operations to achieve their core mission within the funding level provided. Changes in
service level requirements mandated by law, directed by Council or influenced by other factors
(changes in technology, annexations, reorganizations of Departments, etc.) provide a basis for changes
in base level funding. Increases in funding are requested as supplemental or new program
appropriation requests. If a Fund or Department experiences a decrease in needs, resources can be
reallocated within the City as needed.
BALANCED BUDGET
Fiscal Year
The fiscal year of the City shall begin on the first day of January and end on the last day of December.
Submission of Budget and Budget Messa¢e
The City Manager, prior to the beginning of each fiscal year, shall submit to Council the budget for said
ensuing fiscal year and an accompanying message.
The City Manager's message shall explain the budget both in fiscal terms and in terms of the work
programs. It shall outline the proposed Financial Policies of the City for the ensuing fiscal year,
describe the important features of the budget, indicate any major changes from the current year in
Financial Policies, expenditures and revenues, together with the reasons for such changes, summarize
the City's debt position and include such other material as the City Manager deems desirable or which
the Council may require.
Bud¢etContent
The budget shall provide a complete financial plan of all Funds for the ensuing fiscal year and, except
as required by law or the Charter, shall be in such form as the City Manager deems desirable or Council
may require. In organizing the budget, the City Manager shall utilize the most feasible combination of
expenditure classification by Fund, Department, Program and Object. It shall begin with a clear general
summary of its contents and shall be so arranged as to show comparative figures for actual and
estimated revenue and expenditures of the preceding fiscal year. It shall indicate in separate sections:
• Anticipated revenues classified as amounts to be received from taxes and fees and
miscellaneous revenues;
• Proposed expenditures for current operations during the ensuing fiscal year, detailed by
Departments and Funds in terms of their respective programs and the method of financing such
expenditures;
• Required expenditures for debt service, judgments and statutory expenditures;
• Proposed capital expenditures during the ensuing fiscal year, detailed by Departments and
Funds when practicable and the proposed method of financing each such capital expenditure;
Page 5 of 15
• Anticipated beginning and ending balances or deficit for the ensuing fiscal year for all Funds.
The total of proposed expenditures and provision for contingencies shall not exceed the total of
estimated revenue and use of fund balance consistent with provisions of this Financial Policy unless
necessitated by emergency situations.
Lona Range Plans
Staff will provide Long Range Plans ("CRP's") which forecast the fiscal condition of every major City
Fund over a ten year horizon. These plans are to be used to analyze the long term financial impact of
changes in revenue streams, funding levels, programmed services and capital improvements during the
current fiscal year. Years two through ten are for planning purposes only.
CRP's are used as financial models throughout the year to assess financial impacts as policy issues arise
and are relied upon for estimating the fiscal impact of budgetary changes.
Asset Management Plan
An Asset Management Plan ("AMP") will be developed for a period often (10) years. The AMP will be
reviewed and updated annually. Years two through ten are for planning purposes only.
The City's AMP includes the purchase, renovation or upgrade of new and existing municipal facilities,
properties and equipment. The AMP is funded from multiple sources depending on the type of project
and the use of the asset.
To be considered in the AMP, a project must have an estimated cost of at least $10,000. Certain assets
below that cost may be included for informational and planning purposes at Council's discretion. Staff
will identify the estimated costs and potential funding sources for each capital project prior to inclusion
in the AMP. The operating costs to maintain capital projects shall be considered prior to undertaking
the capital projects. The impacts of capital assets are budgeted for in the operating budgets.
Budget Adootion
Budget Hearing
The City of Aspen's budget is adopted at a public hearing by resolution. The public hearing will be held
at least fifteen (15) days prior to the County's deadline of December 15th for the certification of the
tax levy. Public notice is published seven (7) days prior to the hearing. See Section 9.6 of the Charter.
Council Amendments
After the public hearing, Council may adopt the budget with or without amendment. In amending the
budget, it may add or increase programs or amounts and may delete or decrease any programs or
amounts, except expenditures required by law or for debt service or for estimated cash deficit.
Council Adoption
The Council shall adopt the budget by resolution on or before the final day established by law for the
certification of the ensuing year's tax levy to the county. If it fails to adopt the budget by this date, the
amounts appropriated for the current operation for the current fiscal year shall be deemed adopted
for the ensuing fiscal year on a month-to-month basis, with all items in it pro-rated accordingly, until
such time as Council adopts the budget for the ensuing fiscal year.
Page 6 of 15
Property Tax Levv
The City of Aspen's mil levy is adopted at a public hearing by resolution. The property tax mil levy
establishes the amount of property tax that will be collected in the ensuing year. The City's general
property tax (not including the Stormwater Fund mil levy or other levies created by referendum) is the
only revenue source subject to the Tax Payers Bill of Rights "TABOR." In 1992, the voters of Colorado
amended Article X of the Colorado Constitution to the effect that any tax increase resulting in the
increase of governmental revenues at a rate faster than the combined rate of inflation and growth in
property would be subjected to a popular vote in a referendum.
Public notice of the mil levy hearing is published at least seven (7) days prior to the hearing. The
County's deadline for the certification of the tax levy is December 15th. See Section 9.9 of the Charter.
Public Records
Copies of the budget and the included capital program as adopted shall be public records and made
available to the public in the municipal building and on the Cites website at www.aspenpitkin.com.
Amendments after Adoption
Supplemental Appropriations
If during the fiscal year the City Manager certifies that there is funding available for appropriation, the
Council by ordinance may make supplemental appropriations for the year. If additional appropriations
are requested of council prior to a supplemental ordinance, Council may approve the expenditure and
authorize spending prior to the ordinance. The Clerk's Department will provide to the Finance
Department the memo presented to Council with the affirmative action by council with decision
summary and stated dollar amount.
EmerBencv Appropriations
To meet a public emergency affecting life, health, property or the public peace, Council may make
emergency appropriations. Such appropriations may be made by emergency ordinance in accordance
with provisions of Section 4.11 of the Charter.
Reduction of Appropriations
If at any time during the fiscal year it appears probable to the City Manager that the funds available
will be insufficient to meet the amount appropriated, the Manager shall report to Council indicating
the estimated amount of the deficit, any remedial action taken by him and his recommendation as to
any other steps to be taken. The Council shall then take such further action as it deems necessary to
prevent or minimize any deficit and for that purpose it may by ordinance reduce one or more
appropriations.
Transfer of Appropriations
Any time during the fiscal year the City Manager may transfer part or all of any unencumbered
appropriation balance among programs within a Department or Fund. Transferring appropriation
balance between Funds requires Council approval. The City Manager may give authority to Staff to
authorize the transfer of unencumbered appropriations between line items within a Department or
Fund. Unencumbered appropriations may be transferred from all line items without approval from the
Finance Director except payroll. In order to transfer unencumbered appropriations dedicated to
payroll, approval must be obtained from the Finance Director.
Page 7 of 15
Capital project appropriations may not be moved from one project to another. Any appropriation
balance within a project may not be used for any other purpose unless the City Manager gives
authority to Staff to change the scope of the project or to move that budget authority to another
expenditure account.
Limitation
No appropriation for debt service may be reduced or transferred and no appropriation may be reduced
below any amount required by law to be appropriated or by more than the amount of the
unencumbered balance thereof. The supplemental and emergency appropriation and reduction or
transfer of appropriations authorized by this section may be made effective immediately upon
adoption.
Administration of Budaet
As required by Section 9.13 (c) of the Charter, a monthly budget report will be created to provide a
snapshot of the City's budgetary and investment status for the current year. This report is intended as
a policy-level document for overall review of the City's fiscal condition and how that condition relates
to major budget issues. This report will be submitted to Council for review. In addition, it is intended
for the use of City Staff with budget management responsibilities. This report will show the status of
the revenue and expenditure compared to the current year's budget authority.
Independent Audit
An independent audit shall be made of all City accounts at least annually and more frequently if
deemed necessary by Council. Such audit shall be made by certified public accountants, experienced in
municipal accounting, selected by City Manager. Copies of such audit shall be made available for
public inspection at the municipal building and on the City's website at www.aspenpitkin.com.
ASSETS
Capital Assets and Capitalization Threshold
The City qualifies a capital asset as having a cost of $5,000 or more, a useful life of one year or more
and a use in operations and not for resale.
A capital asset is to be reported and depreciated in government-wide financial statements. In the
government-wide financial statements, assets that are not capitalized are expended in the year of
acquisition.
Infrastructure assets are long-lived capital assets that normally can be preserved for a greater number
of years than most capital assets and are normally stationary in nature. Examples include roads,
bridges, tunnels, drainage systems, water and sewer systems and dams. Infrastructure assets do not
include buildings, drives, parking lots or any other examples given above that are incidental to property
or access to the property.
The capitalization threshold is based on the cost of a single asset. Assets that do not meet the
capitalization threshold will be recorded as expenditures.
Capital assets that meet the minimum capitalization threshold will be recorded at historical cost. The
Page 8 of 15
cost of a capital asset includes capitalized interest in accordance with GAAP and ancillary charges
necessary to place the asset into its intended location and condition for use.
Classes of Assets
The City establishes the following major categories of capital assets:
• Land and Land Rights (including Water Rights)
• Land Improvements (Improvements other than Buildings)
• Buildings and Building Improvements
• Construction in Progress
• Vehicles
• Machinery and Equipment (Including Office Equipment)
• Infrastructure (Roads, Bridges, Trails, Drainage, Water, Sewer, Dams and Lighting Systems)
Capital Asset Costs
The City establishes the following as capital asset costs:
• Ancillary charges necessary to place the asset into its intended location and condition of use
• Ancillary charges include costs that are directly attributable to asset acquisition:
o Freight and transportation charges
o Installation costs
o Site preparation costs
o Professional fees (attorney, architect, surveyor, engineering and tap)
• Direct charges of staff time
When the City constructs housing projects that will be sold, Construction in Progress ("CIP") costs
should be recorded in Fund 810 as "Assets Held for Resale." However to maintain consistency, the City
will record these projects as CIP and then delete the CIP to offset sales proceeds when the units are
sold. Each project should be analyzed to determine if City infrastructure is being constructed as part of
the project.
Depreciation
In order to be depreciated, an asset must be classified as a capital asset. Capital Assets (excluding land)
are depreciated using the straight-line method over the following estimated useful lives:
Buildings 25 - 50 years
Infrastructure andlmprovementsotherthanBuildings 10-65 years
Machinery and Equipment 3-49 years
Assetlnventorv
The City shall inventory all capital assets. An inventory of all assets is maintained in a database by the
Finance Department. The inventory record will identify the responsible Department or Fund, in
addition to description, year of acquisition, method of acquisition, funding source, cost or estimated
cost, and estimated useful life.
Page 9 of 15
The City shall assess the condition of all major capital assets. This information will be used to plan
for the ongoing financial commitments required for major repairs or replacement to be funded.
Operation and Maintenance
Capital assets shall be maintained in working condition and properly safeguarded. These assets will be
maintained at a level that protects capital investment and minimizes future maintenance and
replacement costs. Budgets should provide sufficient funding for operations, maintenance,
replacement and enhancements of capital assets.
A high priority will be placed on maintenance where deferral results in greater costs to restore or
replace. Maintenance of existing capital assets should be given priority over acquisition of new assets
unless the available funding cannot be used for maintenance of existing capital assets. The City will
avoid deferral of scheduled capital maintenance to achieve a balanced budget.
INVESTMENT POLICY
Please see separate Investment Policy document attached as Exhibit A.
OVERVIEW
Expenditures are a rough measure of a local government's service output. While many expenditures
can be easily controlled, emergencies, unfunded mandates and unanticipated service demands may
strain the City's ability to maintain a balanced budget. The City is committed to ensure the proper
control of expenditures and provide for a quick and effective response to adverse financial situations.
PAYMENTS AND OBLIGATIONS PROHIBITED
No payments shall be made or obligation incurred against any allotment or appropriation except in
accordance with appropriations duly made and unless the manager first certifies that there is a
sufficient unencumbered balance in such allotment or appropriation and that sufficient funds there
from are or will be available to cover the claim or meet the obligation when it becomes due and
payable. Any authorization of payment or incurring of obligation in violation of the provisions of this
document shall be void and any payment so made illegal; such action shall be cause for removal of any
officer who knowingly authorized or made such payment or incurred such obligation, and the officer
shall also be liable to the City for any amount so paid. However, except where prohibited by law,
nothing in this document shall be construed to prevent the making or authorizing of payments or
making of contracts for capital improvements to be financed wholly or partly by the issuance of bonds
or to prevent the making of any contract or lease providing for payments beyond the end of the fiscal
year, provided that such act was made or approved by ordinance.
DEBT MANAGEMENT POLICY
Debt is an effective way to finance capital improvements or to even out short-term revenue flows.
Properly managed debt preserves the City's credit rating, provides flexibility in current and future
operating budgets and provides the City with long-term assets that maintain or improve quality of life.
Page 10 of 15
Limitation of Indebtedness
The City shall not become indebted for any purpose or in any manner in an amount which, including
existing indebtedness, shall exceed twenty (20) percent of the assessed valuation of the taxable
property within the City, as shown by the last preceding assessment for City purposes; provided,
however, that in determining the limitation of the City's power to incur indebtedness there shall not be
included bonds issued for the acquisition or extension of a water system or public utilities; or bonds or
other obligations issued for the acquisition or extension of enterprises, works or ways from which the
City will derive a revenue in accordance with Section 10.5 of the Charter.
Forms of Borrowing
The City may barrow money and issue the following securities to evidence such borrowing:
Short-Term Notes
The City, upon the affirmative vote of the majority of the entire Council, may borrow money without
an election in anticipation of the collection of taxes or other revenues and to issue short-term notes to
evidence the amount so borrowed. Any such short-term notes shall mature before the close of the
fiscal year in which the money is borrowed.
General Obligation Bonds
No bonds or other evidence of indebtedness payable in whole or in part from the proceeds of general
property taxes or to which the full faith and credit of the City are pledged, shall be issued, except in
pursuance of an ordinance, nor until the question of their issuance shall, at a general election, be
submitted to a vote of the electors and approved by a majority of those voting on the question;
qualified electors of the City shall mean those duly qualified to vote at a general election in the City of
Aspen unless the Council for sufficient reason shall by ordinance calling the election, restrict or limit
such classification of electors to taxpaying electors as may be defined by ordinance adopted by the
Council, provided, however, that such securities issued for acquiring utilities and rights thereto, or
acquiring improving or extending any municipal utility system, or any combination of such purposes,
may be so issued without an election.
Revenue Bonds
The City may borrow money, issue bonds or otherwise extend its credit for purchasing, constructing,
condemning, otherwise acquiring, extending or improving a water, electric, gas or sewer system or
other public utility or income-producing project provided that the bonds or other obligations shall be
made payable from the net revenues derived from the operation of such system, utility or project and
providing further that any two (2) or more of such systems, utilities and projects may be combined,
operated and maintained as joint municipal systems, utilities or projects in which case such bonds or
other obligations shall be made payable out of the net revenue derived from the operation of such
joint systems, utilities or projects. Such bonds shall not be considered a debt or general obligation of
the City for the purposes of determining any debt limitation thereof.
The City shall, in addition, have the authority to issue revenue bonds payable from the revenue or
income of the system, utility or project to be constructed or installed with the proceeds of the bond
issue, or payable in whole or in part from the proceeds received by the City from the imposition of a
sales or use tax by the State of Colorado or any agency thereof.
Page 11 of 15
No bond shall be issued until the question of their issuance shall, at a general election, be submitted to
a vote of the electors and approved by a majority of those voting on the question.
Refundine Bonds
The Council may authorize, by ordinance, without an election, issuance of refunding bonds or other
like securities for the purpose of refunding and providing for the payment of the outstanding bonds or
other like securities of the City of the same nature or in advance of maturity by means of an escrow or
otherwise.
Special or Local Improvement District Bonds
The City shall have the power to create local improvement districts and to assess the cost of the
construction or installation of special or local improvements against benefited property within
designated districts in the City by:
• Order of Council, subject, however, to protest by the owners of a majority of all property
benefited and constituting the basis of assessment as the Council may determine.
• A petition by the owners of more than fifty (50) percent of the area of the proposed district
provided that such majority shall include not less than fifty (SO) percent of the landowners
residing in the territory.
In either event, a public hearing shall be held at which all interested parties may appear and be heard.
Right to protest and notice of public hearing shall be given as provided by Council by ordinance. Such
improvements shall confer special benefits to the real property within said district and general benefits
to the City. The Council shall have the power by ordinance to prescribe the method of making such
improvements, of assessing the cost thereof and of issuing bonds for cost of constructing or installing
such improvements including the costs incidental thereto. Bonds shall be authorized for issuance after
approval by the registered electors in the district at a regularly scheduled election.
Where all outstanding bonds of a special or local improvement district have been paid and any monies
remain to the credit of the district, they shall be transferred to a special surplus and deficiency fund
and whenever there is a deficiency in any special or local improvement district fund to meet the
payments of outstanding bonds and interest due thereon, the deficiency shall be paid out of said
surplus and deficiency fund. Whenever a special or local improvement district has paid and cancelled
three-fourths of its bonds issued and for any reason the remaining assessments are not paid in time to
take up the remaining bonds of the district and the interest due thereon and there is not sufficient
monies in the special surplus and deficiency fund, then the City shall pay said bonds when due and the
interest due thereon and reimburse itself by collecting the unpaid assessments due from said district.
In consideration of general benefits conferred on the City from the construction or installation of
improvements in improvement districts, the Council may levy annual taxes on all taxable property
within the City at a rate not exceeding four (4) mils in any one year, to be disbursed as determined by
the Council for the purpose of paying for such benefits, for the payment of any assessment levied
against the City in connection with bonds issued for improvement districts or for the purpose of
advancing monies to maintain current payments of interest and equal annual payments of the principal
amount of bonds issued for any improvement district hereinafter created. The proceeds of such taxes
shall be placed in a special fund and shall be disbursed only for the purposes specified herein, provided
that in lieu of such tax levies, the Council may annually transfer to such special fund any available
monies of the City, but in no event shall the amount transferred in any one year exceed the amount
Page 12 of 15
which would result from a tax levied in such year as herein limited.
Lone Term Installment Contracts, Rentals and Leaseholds
In order to provide necessary land, buildings, equipment and other property for governmental or
proprietary purposes, the City is hereby authorized to enter into long term installment purchase
contracts and rental or leasehold agreements. Such agreements may include an option or options to
purchase and acquire title to such property within a period not exceeding the useful life of such
property and in no case exceeding forty (40) years. Each such agreement and the terms thereof shall
be approved by an ordinance duly enacted by the City. The Council is authorized and empowered to
provide for the payment of said payments or rentals from a general levy imposed upon both personal
and real property included within the boundaries of the City, or by imposing rates, tolls and service
charges for the use of such property or any part thereof by others, or from any other available
municipal income or from any one or more of the above sources provided that nothing herein shall be
construed to eliminate the necessity of voter approval of a tax or levy if otherwise required by this
Charter. The obligation to make any payments or pay any rentals shall constitute an indebtedness of
the City within the meaning of the Charter limitation on indebtedness. Property acquired or occupied
pursuant to this Charter shall be exempt from taxation so long as used for authorized governmental or
proprietary functions of the City. See Ordinance 12-1975.
FUND BALANCES AND OPERATING RESERVES
Adequate reserve levels are a necessary component of the City's overall financial management
strategy and a key indicator of the City's financial health. A fund balance policy is necessary to ensure
that City programs and current service levels are protected from changes in revenue growth or
expenditure requirements. The GFOA recommends the establishment of a formal policy on the level of
fund balance that should be maintained in the General Fund and encourages the adoption of similar
policies for other types of Governmental Funds.
It is the policy of the City to maintain a reserve in the General Fund of no less than twenty five (25)
percent of annual appropriated expenditures, including reoccurring transfers, at year end as identified
in the LRP.
The first twenty (20) percent of the General Fund reserve may be drawn upon on recommendation of
Staff with Council approval to compensate for an expected shortfall. Staff's recommendation to draw
upon this reserve must include a replenishment schedule to begin within twelve months of the draw
and result in full replenishment of the reserve requirement within thirty-six months of the draw.
It is the policy of the City to maintain a reserve in the Wheeler Opera House Fund of no less than
twenty five (25) percent of annual appropriated expenditures, including reoccurring transfers, at year
end as identified in the LRP.
The first twenty (20) percent of the Wheeler Opera House Fund reserve may be drawn upon on
recommendation of Staff with Council approval to compensate for an expected shortfall. Staff's
recommendation to draw upon this reserve must include a replenishment schedule to begin within
twelve months of the draw and result in full replenishment of the reserve requirement within thirty-six
months of the draw.
It is the policy of the City to maintain a reserve in all other City Funds except for the City Tourism
Page 13 of 15
Promotion Fund, of no less than twelve and a half (12.5) percent of annual appropriated expenditures,
including reoccurring transfers, at year end as identified in the LRP.
CARRYFORWARD SAVINGS
The purpose of allowing carryforward savings is to provide an additional incentive for frugality by
operating departments. Unlike traditional governments, which have a "use it or lose it" approach to
annual operating budgets, Aspen's policy encourages departments to create savings in their annual
operating budgets. Savings in annual operating budgets are distributed as follows:
50% of the savings are carried forward into the appropriate department's savings account.
10% is allocated to a Central Savings account.
40% is returned to the appropriate fund balance.
Carryforward Savings represent 50% of the previous year's operating budget savings from individual
Departments or Funds. Departments and Funds are allocated these amounts as a reward to finding
efficiencies in their operations that allow them to meet their operating goals while spending less than
their appropriations. Prior year savings that are not expended are maintained in full and appropriated
every year unless directed otherwise by the City Manager. These appropriations can be spent on items
related to the Department's or Fund's mission but may not be used for ongoing expenditures. In
addition, if a particular expenditure was denied as part of the budget process, departmental savings
may not be used for this purpose without City Manager approval. If the expenditure is to exceed
$10,000, the City Manager must authorize the expenditure. Departments and Funds can accrue these
savings to a maximum of 15% of their operating budgets.
Departments are expected to use their carryforward savings to fund small expenses needed to meet
City Council's and citizen requests as is consistent with our "just say yes" management philosophy. In
conjunction with the City's Outcome Measure program, the creation and use of operating savings is
designed to emulate the incentives found in management of American small businesses. Department
managers are expected to understand and measure their success in meeting customer expectations,
and, through the carryforward savings program, have enough management flexibility to reasonably
meet those expectations.
Central Carryforward Savings represents 10% of the previous year's operating budget savings from all
Departments and Funds of the City. These appropriations are allocated to the City Manager's office for
use in addressing issues with city-wide implications or to address unusual but necessary departmental
expenses.
The City maintains a balanced and diversified revenue structure to protect the City from fluctuations in
any one source due to changes in local economic conditions, which may have an adverse impact. In
order to maintain a stable level of services, the City shall use a conservative, objective and analytical
approach when preparing revenue estimates. The process includes an analysis of probable economic
changes and their impacts on revenues, historical collection rates and trends in revenue shortfalls.
Page 14 of 15
To ensure the City's revenues are balanced and capable of supporting the desired levels of services, the
City has adopted the following revenue policy statements:
• Revenue forecasts shall be conservative, using generally accepted forecasting techniques and
appropriate data.
• Each year, major revenues will be projected for at least the next ten (10) years.
• The City will establish and maintain revenue sources that are diversified. Highly variable
revenue sources shall be earmarked for uses that are flexible in timing and/or discretionary in
need.
• Each year and whenever appropriate, existing revenues will be re-examined and possible new
sources of revenues will be explored to ensure that the City is balancing its revenue potential.
• Each year and whenever appropriate, intergovernmental revenues will be reviewed to
determine their short and long-term stability, to minimize the impact of any adverse changes.
Intergovernmental revenues shall be used as legally prescribed or otherwise set forth by policy.
• One-time revenues shall be used only for one-time expenditures and will not be used to
authorize on-going expenditures or programs.
• The City will carefully and routinely monitors any amounts due. An aggressive policy of
collection will be followed for all receivables, including taxes and fees. The City will fairly and
uniformly administer the provisions of all tax and fee ordinances among citizens and
businesses. This includes businesses located outside the City limits, but making regular
deliveries into the City, home occupations, seasonal vendors and individual owners of short
term rental accommodations.
• Each year and whenever appropriate, the City will review its schedule of fees and related
administrative procedures. The amount of a fee shall not exceed the overall cost of providing
the facility, infrastructure or service for which the fee is imposed. In calculating that cost, direct
or indirect costs may be included. That includes costs that are directly related to the provision
of the service and support costs that are more general in nature but provide support for the
provision of service. The City reviews all fees for licenses, permits, fines and other
miscellaneous charges as part ofthe annual budgetary process.
for programs where the City subsidizes operations, the revenues will be sufficient for the minimum
stated recovery rate and/or dollar amount of subsidy. The recovery rate is defined as revenue as a
percent of expenditures. The dollar subsidy is defined as expenditures less revenue.
Page 15 of 15
INVESTMENT POLICY
March 2004
I. Purpose
The purpose of this investment policy is to provide a guideline by which the funds that aze not
otherwise needed to meet the cash flow demands of the City of Aspen (the City) can best be
invested. The objective of the investment portfolio is to earn the highest return for the City within
the risk guidelines designed to provide maximum security, while maintaining sufficient liquidity to
meet fluctuations in the City's cash flow needs.
II. Scope
This investment policy applies to all financial assets of the City as identified in the City's
Comprehensive Annual Financial Report and all funds managed for the benefit of the Aspen Pitkin
County Housing Authority (APCHA).
Investment income will be allocated to the various funds of the City and APCHA based upon their
respective participation and in accordance with generally accepted accounting principles. Interest
will be allocated on a monthly basis.
III. Standards of Care
1. Prudence: Investments shall be made with judgment and caze -under circumstances then
prevailing -which persons of prudence, discretion and intelligence exercise in the management
of their own affairs, not for speculation, but for investment. The standard of prudence to be
used is Standard IV A.1 of the Standazds of Practice Handbook of the Association for
Investment Management and Research (Appendix A). The Finance Director or his designee
must exercise diligence and thoroughness in making investment recommendations or in taking
investment actions; have a reasonable and adequate basis, supported by appropriate reseazch
and investigation, for such recommendations or actions; make reasonable and diligent efforts to
avoid any material misrepresentation in any research report or investment recommendation; and
maintain appropriate records to support the reasonableness of such recommendations or actions.
The investment officer shall be relieved of personal responsibility for an individual security's
credit risk or market price changes if he/she has acted in accordance with written procedures
and the investment policy.
2. Ethics and Conflicts of Interest: The standazd governing Ethics and Conflicts of Interest shall
be Standard III(C) of the Standazds of Practice Handbook of the Association for Investment
Management and Reseazch (Appendix B). The Finance Director, investment officer, or other
must disclose to the City all matters, including beneficial ownership of securities or other
investments that reasonably could be expected to interfere with their duty to the City or ability
to make unbiased and objective recommendations. The receipt of gifts, gratuities, and travel
expenses is governed by the guidelines of the Ethics Policy as adopted by the Aspen City
Council on what they or other City Staffmay accept from securities dealer firms.
3. Assignment of Responsibilities: Article VI, Section 6.8 of the Charter of the City of Aspen
grants authority and ultimate responsibility for the investment management activities of the City
to the Finance Director. The Finance Director may designate any of the investment functions to
another officer of the City (Investment Officer). The Finance Director shall establish written
Exhibit A
policy procedures for the operation of the investment program consistent with this policy. The
procedures should include reference to; safekeeping repurchase agreements, wire transfer
agreements, banking service contracts and collateral/depository agreements. Such procedures
shall include explicit delegation of authority to persons responsible for investment transactions.
No person may engage in an investment transaction except as provided under the terms of this
policy and the procedures established by the Finance Director. The Finance Director will
establish the day-to-day operating procedures for conducting the City's investment activities.
He or she will be responsible for understanding the risks of the Investment Portfolio and
establish the risk measurement and management process. In addition, he or she is responsible
for making certain that a system of checks and balances is in place between the purchase/sale
decision-making process and the settlement/reconcilement functions. In order to facilitate the
evaluation of the investment activities, the Finance Director may employ outside vendors to
make periodic appraisals of the City's investment program or to suggest specific investment
alternatives. The Finance Director or his/her designee is authorized to execute security
transactions for the City's Investment Portfolio within the limitations established by this policy.
Should unexpected mazket conditions arise, the Finance Director or his designee may approve
a transaction, which would not be in accordance with the Investment Policy but is necessary to
protect the safety and liquidity of the City's investment portfolio, and is guided by Section IIL I
of this policy. Such transactions must be reported to the City Council at their next meeting. All
securities transactions will be made in accordance with the City's overall interest rate risk
profile and policy. Liquidity needs/constraints will also be taken into account when investment
decisions are made.
IV. Objectives
1. Safety of principal is the foremost objective of the investment program. Investments of the
City shall be undertaken in a manner that seeks to ensure the preservation of capital in the
overall investment portfolio. To attain this objective, the City will diversify its investments by
investing funds among a variety of securities and security types offering independent returns
and financial institutions.
2. Liquidity The City's investment portfolio will remain sufficiently liquid to enable the City to
meet all operating requirements which may be reasonably anticipated. A prudent reserve shall
be maintained to meet unanticipated cash requirements.
3. Return on Investments The City's investment portfolio shall be designed with the objective
of attaining a benchmazk rate of return throughout budgetary and economic cycles,
commensurate with the City's investment risk constraints and the cash flow characteristics of
the portfolio.
Exhibit A
V. Safekeeping and Custody
1. Authorized Financial Dealers and Institutions The Finance Director or designee will
maintain a list of authorized securities firms that have been approved by City Council, through a
Request for Proposal process, in accordance with the City's Procurement Code for Contract
Formation. This list will include the established limits on unsettled trades, safekeeping
arrangements, repurchase agreements, securities lending and borrowing, total credit risk with
dealer, and any other transaction with default risk. This list of authorized securities dealers and
their established limits will be reviewed annually, by Finance Staff. The Finance Director or
designee will be responsible for obtaining sufficient knowledge about securities firms and
personnel. Files will be maintained for all firms with which the City transacts investment
business. These files will include:
a) Financial data, annual reports and credit reports.
b) The background data of the dealer's sales representative(s) with whom business will be
conducted.
c) Any information available from State or Federal regulators or securities industry self-
regulatory organizations concerning any formal enforcement actions against the dealer,
its affiliates, or associated personnel.
d) No public deposit shall be made except in a qualified public depository as established
by Colorado law.
2. Internal Controls The Finance Director or designee is responsible for establishing and
maintaining an internal control structure designed to ensure that the assets of the City aze
protected from loss, theft or misuse. The internal control structure shall be designed to
provide reasonable assurance that these objectives are met. The concept of reasonable
assurance recognizes that (1) the cost of a control should not exceed the benefits likely to be
derived and (2) the valuation of costs and benefits requires estimates and judgments by
management.
Accordingly, the Financial Director or designee shall establish a process for an annual
independent review by an external auditor to assure compliance with policies and
procedures. The internal controls shall address the following points:
a) Control of collusion
b) Separation of transaction authority from accounting and recordkeeping
c) Custodial safekeeping
d) Avoidance of physical delivery securities
e) Cleaz delegation of authority to subordinate staff members
f) Written confirmation of transactions for investments and wire transfers
g) Development of a wire transfer agreement with the lead bank and third-party
custodian
3. Delivery vs. Payment All trades where applicable will be executed by delivery vs. payment
(DVP) to ensure that securities are deposited in an eligible financial institution prior to the
release of funds. Securities will be held by a third-party custodian as evidenced by
safekeeping receipts.
Exhibit A
VI. Performance Standards
1. Benchmark The City's investment strategy is active. Given this strategy, the basis used by
the Finance Director to determine whether market yields are being achieved shall be to
identify a comparable benchmark to the investment portfolio. Examples of benchmazk rate
return are the 90 day US Treasury Bill, 6 month US Treasury Bill or the average Federal
Funds Rate.
2. Reporting Consistent with the City Charter, the Finance Director will provide monthly
investment reports, to the City Manager and City Council, which provide a clear picture of
the status of the current investment portfolio. The report should include comments on the
fixed income markets and economic conditions, discussions regarding percentages of
investments by categories, possible changes in portfolio structure and strategy going
forward.
VII. Statutory Investment Guidelines (Statute: Section 24-75-601, C.R.S.)
i. Custody of Investment Securities Unless otherwise stated, all investments must be held
in the City's name, or in the custody of a third party on behalf of the City, or in a custodial
account with an eligible public depository or securities firm on behalf of the City.
2. Maximum Maturity The maximum maturity date for all securities shall be no more than
five yeazs from the date of purchase unless otherwise authorized by the City Council, with
exceptions noted under limitations included in Section VII, 4 of this policy.
3. Coupon Rate Fixed at Settlement Public funds shall not be invested in any security on
which the coupon rate is not fixed from settlement until maturity, other than shares in
qualified money market mutual funds, unless the coupon rate is established by reference to
specified rate indices, such as the U.S. dollar London interbank offer rate ("LIBOR") of one
year or less, or the rate for a U.S. Treasury security with a maturity of one year or less, or the
rate of a municipal bond index, or to the cost of funds index, or the prime rate. (Section 24-
75-601.1(1.3), C.R.S.)
4. Legal Investments of Public Funds (Statute: Section 24-75-601.1, C.R.S.)
a) U.S. Treasury Bilis and Notes
b) Federal Farm Credit Bank
c) Federal Land Bank
d) Federal Home Loan Bank
e) Federal Home Loan Mortgage Corporation
f) Federal National Mortgage Association (FNMA)
g) Export-Import Bank
h) Government National Mortgage Association (GNMA)
i) Obligations of any other U.S. agency if control of agency by U.S. is at least as
extensive as those investments mentioned above. Security must have highest rating
category of at least one recognized rating agency at time of purchase.
j) Obligations of the World Bank, Inter-American Development Bank, Asian
Development Bank, and the African Development Bank. Security must have one of
Exhibit A
two highest rating categories of at least one nationally recognized rating agency at
time of purchase.
k) G.O. Bonds of any state, District of Columbia, U.S. Territory, or any of their
subdivisions. (This includes the State of Colorado and its related entities and
Colorado Local Governments and their related entities.) Security must have one of
three highest rating categories of at least one nationally recognized rating agency at
time of purchase. The Colorado investments may have a maturity in excess of five
years.
1) Revenue Bonds of any state, the District of Columbia, a U.S. Territory, or any of their
subdivisions. Security must have one of two highest rating categories of at least one
nationally recognized rating agency at time of purchase.
m) Bankers Acceptance issued by a state or national bank. The bank must have
combined capital and surplus of at least $250,000,000. Deposits must be FDIC
insured. The bank's long-term debt must have one of three highest ratings of at least
one nationally recognized rating agency at time of purchase.
n) Commercial Paper. Security must have the highest rating from at least one nationally
recognized rating agency at time of purchase.
o) Any obligation, certificate of participation, orlease-purchase of the City of Aspen.
p) Any interest in any local government investment pool pursuant to Section 24-75-701,
et seq., C.R.S. See below.
q) Repurchase Agreements in securities listed in a) through i). Securities of the U.S.
Government or its agencies as listed above which must have a coupon rate that is
fixed from the time of settlement until its maturity and must be marketable. Market
value must at all times be at least equal to funds invested. Title or perfected security
interest in securities must be transferred to the City or custodian. Securities must be
actually delivered to the City or third-party custodian or trustee for safekeeping.
Collateral securities must be collateralized at no less than 102% and marked to market
no less than weekly. These investments may have a maturity in excess of five years.
A master repurchase agreement must be signed with the bank or dealer.
r) Money Market Funds Must be registered as investment company. Fund investment
policies include seeking to maintain a constant share price. No sales or load fee can be
added to the purchase or redemption price. The fund invests only in securities that
have a remaining maximum maturity as specified in rule 2a-7 of the federal
"Investment Company Act of 1940," as long as such rule or amendment to it does not
increase the maximum remaining maturity to a period greater than three years. The
fund has assets of $1 billion or-more, or has the highest credit rating from one or more
nationally recognized rating agency. If the fund has assets of less than $1 billion or
has a rating less than the highest credit rating from one or more nationally recognized
rating agencies, then the fund's investments must consist only of securities listed a)
through q) above; or perfected reverse repurchase agreements of less than 30 days
relating to securities listed in a) through p) above; or securities not listed in a) through
q) above that are tax-exempt if these do not exceed 15 percent of the investments of
the fund; and the dollar-weighted average portfolio maturity of the fund meets the
requirements of rule 2a-7 or amendments to it, so long as such rule or amendment to
it does not increase the dollar-weighted average portfolio maturity to a period greater
than 180 days.
Exhibit A
s) U.S. dollar-denominated corporate or bank debt. Must be issued by a corporation or
bank organized and operated within the United States with a net worth in excess of
$250,000,000; the notes must mature within three years and must carry at least two
credit ratings not below "AA- or Aa3" from any nationally recognized credit rating
agency; the book value of investment in this type of debt shall at no time exceed 30
percent of the book value of the City's investment portfolio, or 5 percent of the book
value of the City's investment portfolio if the notes aze issued by a single corporation
or bank.
t) A securities lending ageement using securities authorized in a) through i). Must be
entered into with a qualified provider that provides and maintains collateral with a
mutually ageed upon custodian. Such collateral shall be in the form of cash or
securities that are authorized investments for the public entity and have a value equal
to 102% of the value of the securities lent by the public entity plus accrued interest.
Corporate securities collateral shall have a value equal to 105% of the value of
securities. Either the custodian or the qualified provider if verified by the custodian
marks to market daily the value of the collateral. If all of the collateral is cash, the
difference in valuation need only be resolved if the collateral is less than 100% of the
value of the securities. A minimum of 20% of investments purchased with cash
collateral matures or is redeemable on any business day; an instrument guazanteed by
the US government that has a variable interest rate set off of a money mazket index
readjusted every 95 days has a maturity equal to the period remaining until the next
readjustment of the interest rate; instrument issued by a corporation that has a variable
rate of interest set off of a money market index readjusted every 95 days has a final
maturity 30 days or an unconditional put back to the issuer 95 days; the maturity of
fixed rate investments or repurchase agreements does not exceed 190 days; the
investment maturity or reset date is not greater than 95 days. The securities lending
agreement is approved and designated by written resolution duly adopted by a
majority vote of the City Council, which resolution shall be recorded in its minutes.
VIII. Collateraluation will be required on purchases of certificates of deposit and repurchase
(and reverse) agreements. In order to anticipate market changes and provide a level of
security for all funds, the collateralization level will be 102% of par value of principal and
accrued interest. Collateral will be held by an independent third party with whom the City
has a current custodial agreement. A cleazly marked evidence of ownership must be supplied
to the City and retained.
IX. Liquidity is the ability to generate cash at a reasonable cost to meet both expected and
unexpected demand for funds from both the City and its vendors without disrupting routine
operations or raising adverse questions from funds providers. Maintaining adequate liquidity is
essential when conducting normal municipal activity and when providing for potential
emergency situations.
The City's liquidity position is measured by its capacity to generate funds. Adequate capacity is
demonstrated by the ability to raise sufficient levels of cash promptly and at a reasonable cost.
This can be accomplished through disposing of liquid assets, increasing short-term borrowing,
issuing additional liabilities, decreasing holdings of non-liquid assets, increasing longer-term
Exhibit A
liabilities, or raising taxes. The goal is to maintain an adequate level of liquidity without
impairing the long-term efficient use of the City's assets.
1. Measurement Since no single ratio can define adequate liquidity, the Finance Department
will study several ratios to construct the most accurate picture of the state of the City's
liquidity position. It is the City's intention to balance the need for liquidity with the need for
interest income. The following are measures to assess trends in liquidity:
In order to plan for and manage seasonal liquidity needs, liquidity measures will be
monitored monthly. The Finance Director or designee will look at cash flows going
forward and prepare best/worst case scenarios for funds necessary to meet the City's
obligations.
On a daily basis, the Finance Director or designee will review local and national economic
factors that may affect the City's liquidity or funding needs. This review will include
changes to the local economy, interest rate environment, local employment projections, and
projected population changes.
2. Administration The liquidity ratios are to be monitored at least monthly (if not weekly or
daily). This will ensure that the City has adequate liquidity at all times and assist the
Finance Director or designee in assessing trends which could adversely affect the liquidity
of the City.
3. Sources of Liquidity The City's primary sources of liquidity are listed below:
a) Available Cash Balances.
b) Money Market Funds. Excess liquidity will be placed in Money Mazket Funds in
compliance with and monitored under the Investment Policy.
c) Maturing securities. The City will ladder its Investment Portfolio to make certain that
securities aze maturing in accordance with anticipated cash flow needs. The Finance
Director or designee will be responsible for establishing a maturity ladder appropriate
for the City.
d) Investment Portfolio. Securities will be monitored for mazket value changes to identify
viable options to be liquidated for liquidity needs.
e) Maximum Maturities. To the extent possible, the City will attempt to match its
investments with anticipated cash flow requirements. Unless matched to a specific cash
flow, the City will not directly invest in securities maturing more than five years from
the date of purchase. However the City may collateralize its repurchase agreements
using longer-dated investments not to exceed ten yeazs to maturity.
Reserve funds maybe invested in securities exceeding ten years if the maturity of such
investments is made to coincide as neazly as practicable with the expected use of the
funds.
4. Liquidity Contingency Plan In the event that the Finance Director or designee anticipates
changes in normal municipal operations, it must respond to potential liquidity problems in a
thorough and organized manner. By developing a liquidity contingency plan, the City will be
Exhibit A
able to deal with a potential or real liquidity problem.
Asset and liability management procedures should be followed to ensure that adequate cash
sources aze available and that minimal cash outflows occur. Also, any measures taken to
manage liquidity should be in accordance with the parameters regarding interest rate risk.
hi the event of a liquidity shortfall, the City will generate cash to meet its obligations by
undertaking one or all of the following steps (in this order):
a) Utilize Available Cash Balances. Liquidate money market positions
b) Utilize funds from maturing investments
c) Liquidate investments provided their market value is close to book value
The City Manager and City Council must be informed of any liquidity shortfall and provided
with the details of the contingency plan.
5. Other Considerations
The liquidity management of the City must be made in harmony with the City's Interest Rate
Risk Management processes. Any liquidity funding decisions made will directly affect the
City's interest rate risk profile. The potential liquidity management decisions should be
considered when evaluating the interest rate risk profile of the City.
As mentioned above, the City's Investment Portfolio will be laddered to have sufficient
maturities to match off against potential maturing liabilities. On an ongoing basis, the
Investment Portfolio will be managed within the parameters of both the investment policy and
the liquidity management needs of the City.
Exhibit A
~e.
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
FROM: Sara Adams, Senior Planner
THRU: Chris Bendon, Community Development Director \./W`v 1
DATE OF MEMO: November 30, 2009
MEETING DATE: December 7, 2009
RE: Resolution #ID eries of 2009, Extending the 211 W.
Hopkins Avenue Ordinance #48 Historic Preservation
Negotiation
SUMMARY: In July 2007, Aspen City Council adopted an emergency ordinance,
Ordinance #30, Series of 2007. That ordinance prohibited any exterior alterations, land
use applications, or building permits affecting all non-landmarked buildings constructed
at least 30 years ago, unless it was determined that no potential historic resource was
negatively affected. The purpose of the Ordinance was to protect Aspen's significant
architectural heritage; not only Victorians, but more modern structures as well.
Ordinance #30 was in place for 5 months, during which time Council held numerous
meetings to discuss the effect of the new regulations and potential amendments. In
particulaz, Council wished to see the applicability of the Ordinance narrowed down
dramatically from all properties over 30 years of age to a specific list researched by staff
and found to potentially qualify for landmark designation. In December 2007, Ordinance
#48, Series of 2007 was adopted to replace Ordinance #30.
Ordinance #48 creates a formal list of potential historic resources in Aspen that may have
historical, architectural, archaeological, engineering and cultural importance.
Detrimental development or demolition actions affecting these properties will be limited
while the City undertakes an evaluation of the historic preservation program via the HP
Task Force.
211 W. Hopkins Avenue is identified on the List of Potential Historic Resources as part
of Ordinance #48. Owners of property listed on Ordinance #48 can still move forward
with proposed projects if they:
A. Submit the plans and seek staff determination that the work is exempt from delay
under Ordinance #48 (routine maintenance work for example); or
Resolution # )Da ;Series of 2009
211 West Hopkins Avenue
Ordinance #48, 90 Day Negotiation Extension
B. Submit plans and seek staff determination that the work, while not exempt from
Ordinance #48, can move forward by voluntarily complying with Staff or HPC
review (depending on the scope of work) of the project, or
C. Refuse the option for HPC review and submit plans with the intention of
triggering a 90 day delay period, during which time City Staff and Council will
negotiate for appropriate preservation of the property. If the negotiation does not
result in an agreement to landmark designate the property, the building permits
will be processed as requested.
In March of 2009, the owners of 211 W. Hopkins Avenue, submitted an application for a
demolition permit and requested negotiation with Council. The owners, represented by
John Kelly, are receptive to discussing preservation. Historic Preservation staff is
working with the owner's representative to figure out a mutually beneficial solution for
the property owners and the City.
City Council extended the initial 90 day negotiation period, which expired on June 17,
2009, until September 15, 2009. The property owners request that the process be
extended a second time for an additional 90 days until December 14, 2009 to allow
additional time to discuss options for the property. The property owners are interested in
extending the negotiation for another 90 days, to February 14, 2010, to allow more time
to discuss some of HPC's comments regarding a negotiation for preservation of the
home. Staff appreciates the owners' efforts to consider alternatives to demolition and we
support taking additional time to work through the issue. First reading of an ordinance
regarding the negotiation of this property is scheduled before Council on December 7,
2009 and second reading is scheduled for February 8, 2010.
STAFF RECOMMENDATION: Staff recommends that Council approve an extension
of the time period to continue the negotiations for the preservation of 211 West Hopkins
Avenue to February 14, 2010.
RECOMMENDED MOTION: "I move to adopt Resolution #loySeries of 2009:
approving an extension of the negotiation period to discuss voluntary historic designation
with the owner of 211 W. Hopkins Avenue under Ordinance #48, Series of 2007 until
February 14, 2009."
CITY MANAGER COMMENTS:
Resolution # , Series of 2009
211 West Hopkins Avenue
Ordinance #48, 90 Day Negotiation Extension
A RESOLUTION OF THE ASPEN CITY COUNCIL EXTENDING THE
ORDINANCE #48, SERIES OF 2007, NEGOTIATION FOR HISTORIC
DESIGNATION OF 211 W. HOPKINS AVENUE
Resolution No. Series of 2009
WHEREAS, 21 I West Hopkins Avenue, Lots F and G, Block 53, City and Townsite of
Aspen, Colorado, is subject to Ordinance #48, Series of 2007. This Ordinance identifies
potential historic resources and creates a review process for any proposed alterations.
The Ordinance also establishes a framework For City Council to negotiate with the
property owner to secure voluntary historic designation; and
WHEREAS, the owner of 211 West Hopkins Avenue, Vaughan Family Trust, is in the
process of said negotiation. The owner triggered the negotiation period by submitting an
application for a permit to demolish the structure at 211 West Hopkins Avenue.
Ordinance #48, Series of 2007, provides Council with a 90 day period to delay the
issuance of a demolition permit while other alternatives and preservation incentives are
discussed. Council is to be provided with a recommendation about the historic
significance of the resource from the Historic Preservation Commission; and
WHEREAS, the 90 day negotiation period for 211 West Hopkins Avenue was to expire
on June 17, 2009; and
WHEREAS, the 90 day negotiation period for 211 West Hopkins Avenue was extended
to September 15, 2009 by Aspen City Council pursuant to Resolution 29, Series of 2009,
and was extended a second time by Aspen City Council to December 14, 2009 pursuant
to Resolution 69, Series of 2009; and
WHEREAS, Staff and the property owner are in agreement that more time is needed,
and an extension of the negotiation to February 14, 2010 is appropriate.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
The negotiation period established by Ordinance #48, Series of 2007, as it affects the
property at 211 West Hopkins Avenue, is hereby extended to Februazy 14, 2010.
APPROVED by the Aspen City Council at its regular meeting on December 7, 2009.
Approved as to form:
John Worcester, City Attorney
Attest: Mayor:
Kathryn Koch, City Clerk
Michael C. Ireland, Mayor
IEONAIiD M. GATES
RICHARD A KNC2[VIf,H
I F.D^ GAROENSWARTZ
DAVIUB KELLY
MARIA MORROW
OF CDUNSEC.
JOHN T. KELLV
$TEPHENR CONNOR
ANNE MARIE Mc PHEE
Vvt NOV C FD$NEDT
6ARAl1 M. OATC$
LAW OFFICES OF
GATES, KNEZEVICH, GARDENSWARTZ 8s KELi.Y, P.C.
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAU BUILDING
59~E HOPKINS AVENUE
ASPEN.COLORAD0. 81511
November 25, 2009
Sara Adams, Sr. Planner
City of Aspen
130 S. Galena
Aspen, CO 81611
Re: 211 W. Hopkins
Dear Sara:
TELEPHONE 15%01620-1%W
FAC$IMII_E 19%01920-1121
PxL~oFBbw tsm
ViA E-MAIL
Based on my conferences with my client you aze authorized to extend the current ninety day
negotiation period for an additional ninety days. You are also authorized to set the ten year vesting
ordinance for December 7`h. Finally, as we discussed our compromised offer is that instead of a ten year
vesting with a prohibition against demolition for three years, my client would accept a ten yeaz vesting
period with a three year restriction against demolition, so long as Howazd Vaughan is alive. In the event
of Howard's death, the three year restriction against demolition would terminate.
Please contact me with any questions or comments.
Very Truly Yours,
GATES, KNEZEVICH, GARDE/NSWAR/TZ & KELLY, P.C.
By ~ IC.S-~IL
ohn T. Kelly
cc: Howazd Vaughan
Jim Casey
JTK/bab
Dmumeml2
.Y 1- ~
MEMORANDUM
TO:
FROM:
THRU:
DATE OF MEMO:
MEETING DATE:
RE:
Mayor and City Council
Don,Taylor, Director of Finance
Steve Barwick, City Manager
November 30, 2009
December 7, 2009
Approval of ACRA Marketing Agreement
REQUEST OF COUNCIL: This is for the City Council to consider renewal of the agreement
with the Aspen Chamber and Resort Association (ACRA) to provide mazketing and tourism
promotion services for the City of Aspen.
PREVIOUS COUNCIL ACTION: The 1.0% Visitor Benefit Tax on the short-term rental of
lodging accommodations was approved by Aspen voters in November 2000. Fifty percent (50%)
of the proceeds from the new tax aze dedicated to transportation services and fifty percent (50%)
are dedicated to tourism promotion activities as described in Ordinance No. 45, Series 2000.
BACKGROUND: Most resort communities in Colorado choose to market themselves in some
manner in order to promote the community as a whole. This generally supplements the singular
efforts of private businesses which tend to promote the individual business. This mazketing
agreement provides a mechanism to promote the community as a whole and tends to focus on the
non winter period of time.
DISCUSSION: The proposed agreement is in substantially the same form as the agreement
that has been used with ACRA since 2001, the yeaz after the tourism tax was first implemented.
There has been a new pazagraph added under the heading Supplemental Fundine. It provides that
the City will provide $500,000 of supplemental funding from the City's General Fund for the
yeaz 2010. There has been discussion of seeking voter approval of a new 1% lodging tax to
supplement mazketing funds in November 2010.
FINANCIAL/BUDGET IMPACTS: The existing tourism promotion tax (50% of the 1%
lodging tax) funds promotional activities and therefore, to that extent has no effect on the City's
General Fund. The $500,000 supplemental funding should be evaluated in February to determine
if other General fund reductions need to be made to provide for this.
Page l of 2
RECOMMENDED ACTION: Staff recommends approval of the Resolution authorizing the
signing of the agreement.
ALTERNATIVES: This agreement may be modified in any manner that meets the Councils
goals for tourism promotional activities that is consistent with the language in the question
approving the tax.
PROPOSED MOTION: "I move to approve Resolution # ~'
CITY MANAGER
ATTACHMENTS:
Page 2 of 2
RESOLUTION #103
(Series of 2009)
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF
ASPEN, COLORADO, AND THE ASPEN CHAMBER RESORT
ASSOCIATION SETTING FORTH THE TERMS AND CONDITIONS
REGARDING MARKETING AND TOURISM PROMOTION SERVICES AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council an agreement
between the City of Aspen, Colorado, and the Aspen c\Chamber Resort
Association, 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 that agreement
between the City of Aspen, Colorado, and the Aspen Chamber Resort Association
regarding marketing and tourism promotion services for the city of Aspen, 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 December 7, 2009.
Kathryn S. Koch, City Clerk
Third Amended and Restated
CITY OF ASPEN AND ACRA
TOURISM PROMOTION FUND AGREEMENT
THIS AGREEMENT is effective this _ day of December, 2009, by and between the
CITY OF ASPEN (the "City") and the ASPEN CHAMBER RESORT ASSOCIATION ("ACRA"),
RECITALS
1. The City and ACRA entered into that certain Agreement dated February 27, 2001,
and the parties hereto desire to renew said agreement.
2. The City Council has adopted Ordinance No. 45, Series of 2000, which imposes a
1.0% visitor benefits tax on condition that the voters of the City of Aspen approve the
aforementioned ballot question at the November 7, 2000 municipal election, which the voters did
approve.
3. Ordinance No. 45, Series of 2000, requires the City Council to appropriate 50% of
all revenues generated by the tax for marketing and promotional efforts for the City's tourism
industry.
4. The City desires to contract with an organization capable of performing the
marketing and promotional efforts contemplated by said ordinance.
5. The Aspen Chamber Resort Association desires to contract with the City to receive
funds appropriated by the City Council for tourism promotion activities and to thereafter perform
such tourism promotion activities on behalf of the City of Aspen.
AGREEMENT
In consideration of the mutual covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which aze hereby mutually acknowledged, the parties
agree as follows:
1. Intent of the parties. The parties to this Agreement agree that the following sets
forth their intent in entering into this agreement and the principles set forth below shall help guide
all future interpretations of this Agreement and the parties continuing relationship with respect to
the expenditure of tourism promotion funds of the City of Aspen.
a. The parties acknowledge that the City shall use funds generated by the
visitor benefits tax imposed by Ordinance No. 45, Series of 2000, to meet its
financial obligations pursuant to this Agreement. Accordingly, the parties
acknowledge that the purpose, limitations, and administrative requirements of such
funds as set forth in said ordinance shall apply to this Agreement.
b. The parties intend to enter into a continuing relationship for multi-year
planning and implementation of tourism promotion activities as set forth herein.
c. The parties acknowledge that the purpose of 50% of the 1% visitor benefits
tax is to, inter alia, to generate sufficient funds primarily for new (i.e. developed
since February 27, 2001, strategies and activities) for planning and delivering
tourism promotion activities on behalf of the City of Aspen. Accordingly, the
marketing plan and budget contemplated by this Agreement shall be primarily for
new strategies and activities not currently funded by the City, ACRA or other third
parties that support the goal of bringing new visitors to Aspen.
2. Scope of Services and Mazketing Program.
a. During the City's annual budget review and adoption procedures, ACRA
shall recommend a marketing plan and budget for the City's forthcoming calendaz
year.
b. The marketing plan and budget shall include the following:
planning and implementing the advertisement, promotion, and
development of tourism in the City of Aspen;
2. tourism advertising, written and graphic materials, and cooperative
and matching promotional materials;
3. gathering and disseminating information on the tourist industries and
attractions of the City of Aspen;
4. purchasing such equipment, materials, and supplies as shall be
necessary, to be used solely for tourist promotion;
5. contracting for those services and materials as may be incidental,
necessary, and appropriate to the accomplishment of the purposes of
the fund, including but not limited to, administrative, secretazial,
clerical, or professional services deemed necessary;
6. promoting conferences, conventions, and meetings of a commercial,
cultural, educational, or social nature to the City of Aspen;
promoting sporting events and social and cultural events sponsored
by non-profit organizations;
8. defraying administrative and clerical costs of collecting and
administering the tax, provided such expenses do not exceed the
actual costs of such administrative and clerical costs.
c. The mazketing services shall be generally primarily for new (i.e. developed
since February 27, 2001 strategies and activities), and ACRA shall not defray costs
of existing programs, special events and mazketing efforts including airport host
program, visitor center support among others with funds from the mazketing fund.
Marketing fends may be used to enhance or promote existing tourism promotion
programs and special events.
d. The general nature and content of advertising paid for by the mazketing fund
shall follow these guidelines: the purpose of advertising and promotion shall be to
enhance the year-round economy and public welfaze of the City as a whole;
advertising and promotional efforts shall avoid undue emphasis upon any particulaz
commercial activity or enterprise that might be construed to create a competitive
disadvantage to other similaz commercial enterprises; and there shall be no
advertising or promotion that is misleading or deceptive and therefore opposed to
the public interest or prejudicial to the interests of the City.
e. ACRA shall be solely responsible for planning and implementation of
specific details of the mazketing program and may include the lodging community in
such planning. ACRA shall monitor the program and ensure conformance to its
budget. At least 70 per cent of the funds are to be expended on program costs, rather
than on support or staff. ACRA shall not use fund proceeds for its existing
operational costs, for expenses not directly attributable to the purposes of this
Agreement, or expenses not identified in its annual marketing plan and budget as
approved by the City Council.
f The ACRA and the Aspen Lodging Association shall meet at least annually
before October 15a' of each calendar yeaz to review a tourism promotion plan and
budget for the City's following fiscal yeaz prior to presentation to the City Council.
3. Term. The term of this Agreement shall be from January 1, 2010, through December
31, 2012. This Agreement may be terminated by either party as set forth at Section 7, below.
4. Reporting and Budgeting. ACRA shall submit a detailed mazketing program and
expense budget for inclusion in City's budget packets, along with a review of the previous year's
program. The City Manager shall provide budget recommendations, including an estimate of
prospective tax proceeds, general fund contributions, prior yeaz carry-forward balance, and interest
income. The marketing fund shall be eliminated from the City's Grant Panel Review process in
that it is its own separate fund. The ACRA is allowed and encouraged to attend and advise the City
Council at all such meetings where the marketing program and budget is discussed. ACRA shall
provide annual reports to the City on the fund and expenditures from it.
5. Accounting. The City shall pay over to ACRA the mazketing funds raised by the tax
on a monthly basis. ACRA shall be responsible for paying its vendors, suppliers, subcontractors,
staff, and the like. ACRA shall maintain the tax fund receipts in a sepazate and interest-bearing
bank account from its general funds. The City may inspect ACRA's records upon reasonable notice.
All mazketing funds accrued during the life of this Agreement shall be paid over to ACRA,
although ACRA shall account for and refund any funds not expended for the purposes set forth in
this Agreement.
6. Supplemental Funding. The City agrees for the calendar year 2010, to supplement
from the City's General Fund the funds raised from the tourism promotion tax by the amount of
$500,000. In November of 2010, the City may pursue additional funding for tourism promotion in
3
the form of an additional 1 % lodging tax. If the additional funding for tourism promotion is
approved by voters, the tourism promotion fund will repay the City's General Fund $400,000. The
repayment shall be $100,000 per year for four years beginning in 2011, unless otherwise
determined by mutual consent.
7. Equal Access. Any and all businesses within the City shall be permitted equal access
and opportunity to participate in cooperative advertising efforts and package promotions
specifically related to and supported by the use of the marketing funds referenced in this
Agreement, whether or not the business is a member of the ACRA or the Aspen Lodging
Association. That is, to the maximum extent possible, ACRA shall make a distinction between
member service and other existing programs supported by membership dues, and new programs
supported by the City by this Agreement, and as to the latter, not discriminate based on
membership in the organizations.
8. Termination. Either party may terminate this agreement effective on December 31,
2010, or December 31, 2011; provided, however, that written notice is delivered to the other party
no later than September 30 of the yeaz preceding the calendar year that termination is to become
effective.
9. Other Restrictions and Provisions.
a. The City shall not unreasonably withhold or redirect funds from the
mazketing funds raised by the visitor benefits tax that aze to be handled by the ACRA. These are
intended to be additional funds for mazketing, and the intent is that the City will continue its
existing funding (for the visitors center, etc.) as a floor, and not lessen those so that the marketing
funds from the tax are not absorbed into existing ACRA/City programs.
b. The marketing funds shall not be used for city capital projects such as the
construction of visitor information centers or other tourist amenities.
c. The City Council shall not, without prior consultation with ACRA, change
the agent assigned to manage the tourism marketing funds. Nor shall the City change that agent
without some sort of cause and explanation, and it shall cor~ult with the ACRA as to any new fund
manager.
d. ACRA shall not use any of the mazketing fund for providing direct
reservation services.
e. ACRA shall not use fund proceeds to influence the outcome of any election.
10. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, representatives, successors and assigns and to any
person into or with which any party hereto may merge, consolidate, or reorganize.
11. Acknowledgments. The parties declare that they have read and understand the
terms of this Agreement, that they have had an opportunity to be represented by counsel with
regazd to the execution of this Agreement, and that they execute this Agreement voluntarily and
4
without being pressured or influenced by any statement or representation made by any person
acting on behalf of any one else.
12. Indemnification. ACRA agrees to indemnify and hold harmless the City, its officers,
employees, insurers, from and against all liability, claims and demands on account of injury, loss,
or damage, arising out of or in any manner connected with this Agreement, if such injury, loss, or
damage is caused in whole or in part, or is claimed to be caused in whole or in part by, the act,
omission, error, mistake, negligence, or other fault of ACRA, employee, representative, or agent.
ACRA agrees to investigate, handle, respond to, and to provide a defense for and defend against
any such liability, claims or demands at the sole expense of ACRA, or at the option of the City,
ACRA 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
ACRA for the portion of the judgment attributable to such act, omission, or other fault of the City,
its officers, or employees. If any lawsuit challenges the City's authority to impose the visitor
benefits tax, the City shall be primarily responsible for the defense of the suit.
13. No Warranties. Except as expressly set forth in this Agreement, the parties have not
made and make no other representations, warranties, statements, promises or agreements to each
other.
14. Entire Agreement. The parties agree that this Agreement represents the entire
agreement and supersedes all prior agreements between and among them with regard to the subject
matter set forth herein, and may not be amended nor may any condition contained herein be waived
except by written instrument signed by all parties
15. Notices. Notices hereunder shall be sent to the City Manager and the City Attorney
at 130 S. Galena Street, Aspen CO 81611; to ACRA at Aspen Chamber Resort Association, 425
Rio Grande Place, Aspen CO 81611; and to Oates, Knezevich & Gardenswartz, P.C., 533 East
Hopkins Avenue, Aspen CO 81611.
16. Counterpart Si nag_ tares. This document may be executed in counterpart original
copies, with the original signatures on separate pages to be collated together on one original form
of the agreement.
CITY OF ASPEN, a municipal corporation
Attest:
Clerk
Attest:
By: Mick Ireland, Mayor
ASPEN CHAMBER RESORT ASSOCIATION
By: Debbie Braun, President
~!-L 9
MEMORANDUM
TO: Mayor and City Council
FROM: Kathryn Koch, City Clerk
DATE: December 1, 2009
RE: Board Appointments
By adopting the consent calendar, Council is making the following
appointment:
Planning & Zoning Commission Jasmine Tygre
(alternate)
Commercial Core & Lodging Commission Mark Zitelli
Wheeler Opera House Ron Erickson
Richie Cohen
~a
MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Director of Finance
THRU: Steve Barwick, City Manager
DATE OF MEMO: November 30, 2010
MEETING DATE: December 7, 2010
RE: Proposed 2010 Fee Schedule
REQUEST OF COUNCIL: This is for the City Council to consider adoption of the 2010 fee
schedule.
PREVIOUS COUNCIL ACTION: Each year the City council adopts a new fee structure that
brings the fees up to date.
BACKGROUND: The city has a wide variety of fees that it changes for services that it
provides. In some cases the fee represents 100% cost recovery. In other cases the fee represents
only a partial cost recovery with the balance if the costs viewed as general public benefit.
DISCUSSION: There aze memos from the various departrnents attached to this memo outlining
the proposed changes to the existing fee schedule.
FINANCIAL/BUDGET IMPACTS: Increased revenues aze expected from the proposed fee
changes. The recreation fee changes aze expected to raise $50,000. Other fee changes will raise
revenues and the actual amount raised will depend on the volume of sales or services rendered.
RECOMMENDED ACTION: Staff recommends approval of the ordinance amending the fee
schedule as shown.
ALTERNATIVES: Any fee can be amended in any manner that the council may desire.
PROPOSED MOTION: "I move to approve Ordinance # 27."
CITY MANAGER COMMENTS:
Page 1 of 2
ATTACHMENTS:
A) Memo from Tim Anderson on proposed Recreation fees.
B) Memo from Kathy Tolle on proposed Police department fees.
C) Memo from Trish Aragon on proposed Engineering department fees
D) Memo from Mary Lackner on proposed GIS fees.
Page 2 of 2
ORDINANCE N0.27
Series of 2009
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING THE MUNICIPAL CODE OF THE CITY OF ASPEN TO INCREASE
CERTAIN MUNICIPAL FEES
WHEREAS, the City Council has adopted a policy of requiring consumers and
users of the miscellaneous City of Aspen programs and services to pay fees that fairly
approximate the costs of providing such programs and services; and
WHEREAS, the City Council has determined that certain fees currently in effect do
not raise revenues sufficient to pay for the attendant costs of providing said programs and
services.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section 1.
That Section 2.12.014 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth Aspen Recreation Department FUN pass fees, is hereby amended to read
as follows:
2.12.014 Recreation Department Fun Pass
The Recreation Department shall issue Fun Passes that provides access to the holder of
such a pass to the following facilities and activities: use of the James E. Moore Pool,
public or open skating at the Lewis Ice Arena or Aspen Ice Garden, use of the climbing
wall at the Red Brick Recreation Center, fitness classes held at the Red Brick Recreation
Center, aquatic fitness classes at the Aspen Recreation Center, tennis court rental and
usage at the Aspen Tennis Center. Usage, participation and access to the above activities
maybe limited to certain times and dates as indicated on the pass.
Daily Admission
Youth Resident 7.50
Youth Guest 15.00
Adult Resident 9.50
Adult Guest 17.00
Senior 7.50
Twilight 5.50
Guest 10 Visit Card 123.00
Monthly Pass
Youth Resident 45.50
Reoccurring Youth Resident 39.00
Adult Resident 83.00
Reoccurring Adult Resident 72.00
Family Resident 164.00
Reoccurring Family Resident 147.00
Each Additional 15.50
20 Visit Card
Youth Resident 108.00
Adult Resident 162.00
6 Month Pass
Youth Resident 218.00
Adult Resident 272.00
Family Resident 592.00
Each Additional 54.00
Annual Pass
Youth Resident 394.00
Adult Resident 487.00
Family Resident 1,063.00
Each Additional 107.00
Section 2.
That Section 2.12.015 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth Aspen Recreation Center fees, is. hereby amended to read as follows:
2.12.015 Aspen Recreation Center
Meeting Room rental
Nonprofit Use 56.00
For profit use 80.00
Exclusive Use of Facility
Aspen Ice Garden (AIG) and Lewis Ice Arena (LIA)
For Profit Use Negotiated
Non Profit Use Negotiated
1
Section 3.
That Section 2.12.020 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth certain user fees for the Aspen Ice Garden and Lewis Ice Arena, is hereby
amended to read as follows:
Sec. 2.12.020 Aspen Ice Garden and Lewis Ice Arena
ICE RENTAL & USAGE RATES
General Rental & Camps
AIG 230.00
LIA 230.00
Adult Non-Profit Prime
AIG 193.00
LIA 193.00
Adult Non-Profit Non-Prime Ice
AIG 193.00
LIA 193.00
Youth Non-Profit Prime Ice
AIG 188.00
LIA 188.00
Youth Non-Profit Non-Prime Ice
AIG 188.00
LIA 188.00
Skate Sharpening 7.00
Skate Sharpening -Same Day 10.00
Pick Up Hockey
One time 13.50
10 Punch 114.00
Free Style Sessions 10.50
Free Style 20 Punch Pass 160.00
Skating Classes 12.50
LOCKER RENTAL
Annually 250.00
Six (6) Months 150.00
2
Monthly
Weekly Camps
Section 4.
26.00
15.50
That Section 2.12.030 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth leisure and recreation user fees, is hereby amended to read as follows:
2.12.030 James E. Moore Pool
Youth Swimming Lessons
Pass Holder
Non Pass Holder
Private Swim Lessons
Pass Holder
Non Pass Holder
Lifeguard Training
Kayak Roll Sessions
Water Polo Drop Ins
Masters Swim Drop In
Rentals
58.00
77.00
31.00
41.00
220.00
5.50 plus admission
3.50 plus admission
3.50 plus admission
Entire Aquatic Facility for Profit 223.00
Entire Aquatic Facility Non-Profit-Adult 180.00
Entire Aquatic Facility Non-Profit-Youth 157.00
Single Pool Rate For Profit 84.00
Single Pool Rate Non-Profit 74.00
Single Lane Rental in Lap Pool Non-Profit 15.50
Single Lane Rental Lap Pool -For Profit 17.50
Section 5.
That Section 2.12.040 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth leisure and recreation user fees, is hereby amended to read as follows:
2.12.040 Miscellaneous leisure and recreation fees
Adult Programs
Adult Basketball-Drop in
5.00
3
Adult Volleyball-Drop in 5.00
Mens Rec Basketball 725.00
Adult Soccer 1,004.00
Adult Softball-Mens League 915.00
Adult Softball-Coed League 775.00
Adult Flag Football 405.00
Youth Programs
Youth Baseball 113.00
T-Ball 62.00
Girls Softball 113.00
Day Camp 32.00
One Time Activity Fee 32.00
Guest Fee 57.00
Sailing 578.00
Tennis Lessons M/W/F 80.00
Tennis Lessons Tu/Th 58.00
Tennis Team 578.00
Tennis Clinics 16.00
Tennis Court Rental Fees 10.00
Youth Athletic 46.50
Youth Intramurals
Kickball lst/2nd Grade 46.50
Kickba113rd/4th Grade 46.50
Floor Hockey 1st/2nd Grade 34.00
Floor Hockey 3rd/4th Grade 34.00
Gym Olympics 34.00
Youth Soccer 91.00
Youth Soccer-Kindergarten 48.00
Youth Basketball -Kindergarten 46.50
Youth Basketball - 1st-8th grade 64.50
Climbing Wall
Beg Rock Rats 75.00
Boulder Rats 52.00
Int/Adv Climbing 85.00
Beg Ages 10+ 60.00
Jr Rats 47.00
Gymnasium Rental-1 hour 60.00
4
Section 6.
That Section 2.12.045 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth Wheeler Opera House fees, is hereby amended to read as follows:
2.12.045 Wheeler Opera House.
For-Profit Rentors ~ Not-For-Profit
~ i Rentors
REGULAR PERFORMANCE RATE ~~
i
$450 per day ~
$250 per day
(Also includes rehearsal days)
i 40% additional per added performance, i '
same day; i l
60% additional per each additional day. {
~ Three-day maximum in-season, four off-
season. I
i '
_
__ _
PRNATE EVENTS/Non-Corporate ___
$750 per day I $750 per day
PRNATE EVENTS/Non-Corporate/ 'i $750 per day, ~ $750 per day,
Christmas -New Year's Week only j plus $1,000 j plus $1,000
(', contribution to ~ contribution to
Wheeler % Wheeler Endowment
Endowment Fund i Fund
PRNATE EVENTS/Corporate i $1,150 per day or ~ N/A
j per performance ~
' PRNATE EVENTS/Corporate/ $1,150 per day or i N/A
Christmas -New Year's Week only per performance
plus $1,000
j contribution to I
I E
Wheeler
Endowment Fund
PRNATE MOVIE SCREENINGS , $750 all-inclusive ~ $750 all-inclusive
(200 patrons or ~ (200 patrons or less);
j less);E $750 plus expenses
i $750 plus expenses ~ (over 200 patrons)
C (over 200 patrons)
' BOX OFFICE ROYALTY I 5% of all sales !G 5% of all sales
CREDIT CARD BILLBACK i 3% ! 3% Visa/Mastercard;
i
Visa/Mastercard;
4% American
4% American ~ Express
Express
BOX OFFICE TICKET SELLERS ~' $15.50/hour; ~ $15.50/hour;
(Time beyond 6pm M-Sat; beyond Spm half-hour half-hour increments
Sun) increments
TICKET PRINTING ~
~ , $.085 per ticket ~ $.050 per ticket
THEATRE TECHNICIAN RATES ~ $25.50/hour; ~ $24.00/hour;
I half-hour i half-hour increments
~ I
increments I
PRODUCTION CO-MANAGER RATES I $32.50/hour; ' $30.50/hour;
half-hour ; half-hour increments
j increments
TECH MATERIALS AND BACKLINE i ~
~~ SUPPLIES AND PIANO TUNINGS i. At Cost ~ At Cost
1999 STEINWAY D (CNA) PIANO 1 $300/performance ~ $200/performance
~ RENTAL ;
N KURZWEIL PC2X 88-KEY KEYBOARD ~ $150/performance ! $100/performance
RENTAL I $250/performance $200/performance
~ 2008 DW 8-PIECE DRUM KIT RENTAL i $75/performance ( $50/performance
1965 REISSUE FENDER AMP RENTAL I
i
1965 REISSUE FENDER TWIN AMP ~
$75/performance j
$50/performance
RENTAL;
FENDER TWIN (NEW MODEL) AMP $75/performance $50/performance
RENTAL '', $75/performance ' $50/performance
AMPEG SVT3-PRO BASS AMP RENTAL
CUSTODIAL CHARGE , $70/day; $50/day;
may be more if ~ may be more if need
I need demands i
i demands
MARKETING ', No charge for' No charge for
inclusion in ~ inclusion in Wheeler
t Wheeler website website and passive
' i
i and passive print ` print materials
materials
RENTAL DEPOSITS Required for first-time or fair-risk rentors
only
Section 7.
That Section 2.12.050 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth certain user fees for the Aspen Police Department, is hereby amended to
read as follows:
2.12.050 Aspen Police Department Fees
LAW ENFORCEMENT RECORDS
Accident Reports, per Report 7.00
Case reports per search 7.00
Plus per copied page 0.25
Arrest history and background checks, per search 7.00
Microfilm search per page 10.00
Plus per copied page 0.25
Communications logging, search per hour 25.00
Per Audio CD 15.00
Case Report/Accident Photos, per photo CD 15.00
ASPEN POLICE DEPARTMENT
Alarm user permit fee 111.00
First false alarm per year 115.00
Second false alarm per year 230.00
Third and fourth false alarm per year 348.00
All bank alarms 367.00
Late fees 12.00
Central alarm license fee 305.00
Vehicle inspection 20.00
Certified VIN inspection 20.00
Off-duty security, per officer, per hour 92.00
Notary fees, per acknowledgement 2.00
DOG VACCINATION AND LICENSE FEES:
Annual dog tag fees 16.50
7
Transfer fee 16.00
Replacement tag 4.00
Section 8.
That Section 2.12.051 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth certain user fees for the Engineering is hereby amended to read as
follows:
Sec. 2.12.051 Engineering Department Fees
Encroachment License application and processing fee 353.00
Vacation application and processing fee 353.00
Right-of--way permit application and processing fee
(waived for sidewalk replacement work) 353.00
Temporary occupation of ROW under encroachments
by commercial operations not associated with construction,
including contractors and vendors $2.50 per sq. ft/month
Permanent Encroachment Fee $1,000.00 per permit
Permanent Encroachment Recording Fee $50.00
Temporary occupation of ROW under encroachments within the core
by commercial operations associated with construction,
including contractors and vendors $5.44/ sq. ft /month
Temporary occupation of ROW under encroachments outside of the core
by commercial operations associated with construction ,
including contractors and vendors $2.72/ sq. ft /month
Permanent encroachment for earth retention $1.32/cu. ft. per month
Map and plan printing
$4.00 per copy
Engineering Plan check fees are based on the building permit fee and equal to 25% of the
total building permit fee.
Additional plan review required by changes, additions, revisions to plans $80/hr
(Minimum charge''/z hr)
Engineering Plan review fees maybe waived or reduced in the discretion of the City Engineer
for projects serving a public purpose, proposed by a nonprofit organization or in which the fee
maybe excessive for the work proposed.
Section 9.
That Section 2.12.052 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth certain user fees for the Environmental Health Department, is hereby
amended to read as follows:
Sec. 2.12.052 Environmental Health Department Fees
Special or Temporary Event Plan Review fee 47.00
Special or Temporary Event Inspection fee (if 47.00
needed)
Swimming pool plan review fee
79.00
Restaurant Site Inspection Fee 82.00
Food safety training 82.00
Food Service License $154 - $343
Section 10.
That Section 2.12.053 of the Municipal Code of the City of Aspen, Colorado, which
section sets forth certain user fees for the Geographic Information Systems (GIS)
Department, is hereby amended to read as follows:
2.12.053 Geographic Information System (GIS) Department Fees.
Preprinted Standard Maps
Large format (1 P' x 17")
Small format (1 P' x 1 T') or less)
Custom Mapping Services
Minimum Charge
Mailing Lists
Plus $1.11 /per sheet of labels
Digital Data Services
Minimum Charge per Data Layers
(Geographic Extentuaries)
Section 11.
$ 28.95 each
$ 10.80 each
$144.50 hour
$ 72.25
$115.00 per search
$144.50 minimum charge
$ 32.20
That Section 2.12 of the Aspen Municipal Code is hereby amended by the addition of a
new section 2.12.130, which section shall read as follows:
9
2.12.130. Car To Go Carshare Program Fees.
The City of Aspen Transportation Department's carshare program known as the "Car To
Go" Program shall charge the following fees:
ITEM FEE
Application $25.00
Monthly membership $10.00
Hourly usage $4.00-$6.00
Per mile usage $0.25-$0.60/mile
Fixed daily rate $70.00-$90.00
Citation fee $25.00 + payment of citation
Emergency cleaning $25.00 + cleaning costs
Missing/incorrect trip ticket/reservation $25.00
NSF check $30.00
Lost key fee $50.00
Inconvenience (late return) $25.00-$50.00 + applicable taxi fee
Low fuel $25.00
ITEM CREDIT
Inconvenience $25.00 + applicable taxi fees
Referral $25.00
Refuel/Wash $3.00
10
A public hearing on the ordinance shall beheld on the day
the City Council Chambers, Aspen City Hall, Aspen, Colorado.
2009, in
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the day of , 2009.
Michael C. Ireland, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
FINALLY adopted, passed and approved this day of December, 2009.
Michael C. Ireland, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
11
MEMORANDUM
TO: MAYOR & CITY COUNCIL
FROM: TIM ANDERSON, RECREATION DIRECTOR
THRU: CITY ATTORNEY'S OFFICE
FINANCE DEPARTMENT
MEETING DATE: NOVEMBER 23, 2009
RE: 2010 FEES
Summary:
Through the 2010 budget work session's staff provided Council with information regarding a
cost analysis for various cost centers within the Recreation Division, and costs for doing
business incurred and being absorbed by the Recreation Budget. Council directed staff to
increase fees such that they recouped these costs of doing business associated with recreation
programs and facilities, but not to raise other fees. These costs were approaching $60,000
annually or 4% of the recreation program costs. The business transaction costs were
approaching 75% of all transactions (see attachment "A").
A 4% increase in the program fees identified in the 2010 fee recommendations will recoup
approximately $50,000 in 2010. These fee increases are only in about 75% of the Recreation
programs. Areas not affected are ice user fees and pool user fees.
Council will notice that staff has cleaned up and simplified the ice fees for users. While the cost
of some ice went up, the cost of other ice times went down such that the fees average out for
users and make it less confusing and easier to track. The ARC Citizen Advisory Committee also
endorses this move to keep fees simple.
Recommendation:
Staff is recommending the approval of the fees identified for 2010 as directed in the 2010
budget process and as recommended by the ARC Advisory Committee.
Alternatives:
If the program fees are not increased to cover the cost of doing business, then further service
level reductions would have to take place in order to meet the subsidy level approved for
Recreation in 2010.
If ice fees remained the same in 2010 it would not affect operations. The same revenue stream
would be realized.
Manager's Comments:
What this option accomplishes: This proposed option Increases most exladng fees approximately 3%, and ralaes other existing fees to
become more In line with what other comparable communhles In Coloredo charge. This option Includes a new charge for the fitness
classes where the Department has substanstanlal and additional costa to host Thls option also Institutes a discount for any patron who Is
a member that has purchased a six month or annual youth, atlult, or family pass.
Recreation zoos 200
Current Proposed Percent
Section z 12.o1a Fee Fee Chance Comments
Dailv Admission:
Youth -Resident $7.50 $7.50 0.0%
Youth -Guest $15.00 $15.00 0.0°h
Adult-Resident $9.50 $9.50 0.0%
Adult-Guest $17.00 $17.00 0.0°h
Senior $7.50 $7.50 0.0°~
Twilight $5.50 I $5.50 I 0.0°h
Guest 10 Visit Card $119.00 $123.00 3.4°~
Monthly Pass
Youth Resident $44.00 $45.50 3.4%
Reoccuning Youth Resident $38.00 $39.00 2.6
Aduh Resident $80.00 $83.00 3.8°h
Reoccurring Adult Resident $70.00 $72.00 2.9°h
Family Resident $158.00 $164.00 3.8°~
Reoccurrng Family Resident $142.00 $147.00 3.5°~
Each Additional $15.00 $15.50 3.3%
20 Visit Card
Youth Resident $104.00 $108.00 3.8°h
Adult Resident $156.00 $162.00 3.8°k
6 Month Pass
Youth Resident $210.00 $218.00 3.8°~
Adult Resident $281.00
I $272.00 4.2°~
Family Resident $569.00 $592.00 4.0%
Each Additional $52.00 $54.00 3.8%
Annual Pass
Youth Resident $379.00 $394.00 4.0°h
Adult Resident $468.00 $487.00 4.1%
Family Resident $1,022.00 $1,063.00 4.0°,G
Each Additional $103.00 $107.00 3.9°h
ARC 2009 2010 Percent
Proposed Proposed
Fee Fee Chance Comments
Section 2.12.015
ARC Meeting Room Rental
Non-Profit $56.00 $56.00 0.0% Per Hour
Corporate $80.00 $80.00 0.0%
Section 2.12.020
Rent Entire Facility
Aspen Ice Gartlen Negotiated Negotiated NA
Lewis Ice Arena Negotiated Negotiated NA
General Rental and Camps
AIG $230.00 $230.00 0.0°k Eliminating the LIAIAIG rate
LIA $240.00 $230.00 ~.2°k
Adult Non-Profit Pdme
AIG $193.00 $193.00 0.0%
LIA $214.00 $193.00 -9.8°~ Eliminating the LIAIAIG rate and the PrimelNOn
Adult Non-Profit Non-Pdme Prime rate
AIG $183.00 $193.00 5.5%
LIA $203.00 $193.00 ~.9°k
Youth Non-Profit Pdme
AIG $188.00 $188.00 0.0% Ellminatin the LIAIAIG rate and the PrlmelNOn
LIA $188.00 $188.00 0.0°k prime rate9This category is an actual reduction
Youth Non Profit Non-Pdme ~^ r.^... ^•~•^w •w° ••°°• ^•^~•^° ^°•• °•^^° •"°••
AIG $188.00 $188.00 0.0% ,,, ,,.... ,,,~..,, ...o Sao, y,,,,.ra yu~ a,,,~o .,,or
LIA $188.00 I $188.00 I 0.0°~ spend more of their time at the LIA.
Skate Sharpening $6.50 $7.00 7.7%
Skate Sharpening -Same day WA $10.00 New option
Pick-up Hockey, One time $13.50 $13.50 0.0%
Pick-up Hockey, 10 Punch $114.00 $114.00 0.0°~
Freestyle Lessons $10.50 $10.50 0.0°h
Freestyle 20 Punch Pass $155.00 $160.00 3.2°h
Skating Classes $12.50 $12.50 0.0°h
Locker Rental
Annually $250.00 $250.00 0.0%
Six months N/A $150.00 New option
Monthly $26.00 NIA Eliminating monthly rentals
2009 2010 Percent
Proposed Proposed
Section 212 03o Fee Fee Chance Comments
Youth Swim Lessons:
Pass holder $56.00 $58.00 3.6%
Non Pass holtler $74.00 $77.00 4.1 °h
Private Swim Lessons:
Pass holder $30.00 $31.00 3.3%
Non Pass holder $40.00 $41.00 2.5% Basic level, does not inGude contracted lessons
Lifeguard Training $220.00 $220.00 0.0%
Kayak Roll Sessions
$5.50
$5.50
0.0°h
Water Polo Drop in $3.50 $3.50 0.0% In additlonto Atlmission
Masters Swim Drop In: $3.50 $3.50 0.0%
Rentals:
Entire Aquatic Facility for Profit $223.00 $223.00 0.0%
Entire Aquatic Facility Non Profit-Adult $180.00 $180.00 0.0°k
Entire Aquatic Facility Non Profit-Youth $157.00 $157.00 0.0°h
Single Pool Rate For Profit $84.00 $84.00 0.0 % Per Hour
Single Pool Rate Non Profit $74.00 $74.00 0.0°~
Single Lane Rental in Lap Pool -Non Profit $15.50 $15.50 0.0°h
Single Lane Rental in Lap Pool - Profit $17.50 $17.50 0.0°~
Section 2 12040
Adult Programs
Adult Basketball-Drop in $5.00 $5.00 0.0
Adult Basketball-Drop in -Non Passholder $0.00 N/A
Adult Volleyball-Drop in $5.00 $5.00 0.0%
Adult Volleyball-Drop in -Non Passholder $0.00 N/A
Mens Rec Basketball $725.00 $725.00 0.0%
Adult SOCCer $1,004.00 $1,004.00 0.0°k
Adult Softball-Mens League $915.00 $915.00 0.0°~
Adult Softball-Coed League $775.00 $775.00 0.0%
Adult Flag Football $405.00 $405.00 0.0°~
Youth Programs
Youth Baseball $109.00 $113.00 3.7%
Youth Baseball -Non Passholder N/A $0.00
T-Ball $60.00 $62.00 3.3°~
T-Ball-NOn Passholder WA $0.00
Gids Softball $109.00 $113.00 3.7°~
Gids Softball -Non Passholder N/A $0.00
Day Camp $31.00 $32.00 3.2°h
Day Camp -Non Passholder N/A $0.00
One Time Activity Fee $31.00 $32.00 3.2°h
Guest Fee $55.00 $57.00 3.6°~
Sailing $556.00 $578.00 4.0°h
Sailing -Non Passholder $0.00
Tennis Lessons M/VJIF $77.00 $80.00 3.9%
Tennis Lessons MIVJ/F -Non Passholder $0.00
Tennis Lessons Tu/1'h $56.00 $58.00 3.6°k
Tennis Lessons Tu/Th -Non Passholder $0.00
Tennis Team $556.00 $578.00 4.0%
Tennis Clinics $15.50 $16.00 3.2°~
Tennis Clinics -Non Passholder $0.00
Tennis Court Rental Fees
Tennis Court Rental Fees -Non Passholder
Youth Athletic
Youth Athletic -Non Passholder
Section 2.12.040
Youth Intramurals
Kickball 1sU2nd Grade
Kickball 1 sU2nd Grade -Non Member
Kickball 3rd/4th Grade
Kickball 3rd/4th Grade -Non Members
Floor Hockey 1sU2nd Grade
Floor Hockey 1 sU2nd Grade -Non Members
Floor Hockey 3rdl4th Grade
Floor Hockey 3rdl4th Grade -Non Members
Gym Olympics
Gym Olympics -Non Members
Youth Soccer
Youth Soccer -Non Members
Youth Soccer-Kindergarten
Youth Soccer-Kindergarten -Non Members
Youth Basketball -Kindergarten
Youth Basketball -Kindergarten -Non Members
Youth Basketball - 1st-8th grade
Youth Basketball - 1st-8th grade -Non Members
(4-5 yrs)
Boys (4-7 yrs)
Boys (7 yrs+)
i Boys
$9.50 $10.00 5.3%
$0.00
$45.00 $46.50 3.3% Used to be
$0.00
2009 2010 Percent
Proposed Proposed
Fee Fee Chance Comments
$45.00 $46.50 3.3%
NIA
$45.00 $46.50 3.3%
N/A
$33.00 $34.00 3.0%
N!A
$33.00 $34.00 3.0%
N/A
$33.00 $34.00 3.0%
NIA
$87.50 $91.00 4.0%
N/A
$46.50 $48.00 3.2%
NIA
$45.00 $46.50 3.3%
N/A
$62.00 $64.50 4.0%
NIA
$36.00 $36.00 0.0%
$54.00 $54.00 0.0%
$54.00 $54.00 0.0°~
$54.00 $54.00 0.0%
$64.00 $64.00 0.0%
$90.00 $90.00 0.0%
$54.00 $54.00 0.0%
$90.00 $90.00 0.0%
$160.00 $160.00 0.0%
3 $160.00 $160.00 0.0%
5 & 6 - 3 days/wk
4 $216.00 $216.00 0.0%
,
5 & 6 - 4 days/wk
4 $230.00 $230.00 0.0%
,
5 & 6 - 5 days/wk
4 $240.00 $240.00 0.0%
,
9, 10
5 7
8 $260.00 $260.00 0.0%
,
,
it (Teens & Adults) $64.00 $64.00 0.0%
Climbing Wall
Beg Rock Rats
Beg Rock Rats -Non Members
Boulder Rats
Boulder Rats -Non Members
InVAdv Climbing
InUAdv Climbing -Non Members
Beg Ages 10+
Beg Ages 10+ -Non Members
Jr Rats
Jr Rats -Non Members
Gymnasium Rental-1 hour
$72.00 $75.00 4.2%
N/A
$50.00 $52.00 4.0%
NIA
$82.00 $85.00 3.7%
N/A
$58.00 $60.00 3.4%
NIA
$45.00 $47.00 4.4°k
NIA
$58.00 $60.00 3.4%
Recreation does not set fees for private
contractors
MEMORANDUM
Date: November 30, 2009
To: Mayor & Council
Through: John Worcester, Don Taylor
Through: Richard Pryor
From: Kathy Tolle
Subject: Revenue Increases for 2010
The anticipated revenue increases for the Police Department are at the
recommended 4% inflationary increases in the following areas:
Non-Court Doo Licenses. Municipal Code 5-28
The rate for 2010 for dog tags will be $16.50 with a replacement fee of
$4.00.
Vehicle Inspection Fees
We charge for vehicle inspections performed by employees of the Police
Department. The fee for VIN's in 2010 will be $20.00.
Certified Vin Inspection Fees
The State of Colorado regulates the fee for these inspections at $20.00
per inspection. This is a state mandated fee.
Refund of Expenditure
We have been charging an hourly rate for off-duty security by agreement.
The fee has been per officer/per hour. The fee for 2010 will be
$92.00/per hour per officer.
Notarv Public Fees
Due to the large number of requests we get for notary public services, we
began charging $2.00 per acknowledgment. We will continue to collect
this amount per State of Colorado Code 12-55-121.
Central Alarm License Fees, Municipal Ordinance 8.5-2
This is the fee charged to the alarm companies who provide alarm
security to Aspen residences and businesses. With the increase in 2010
the rate would be $305.00 per company.
11 /30/2009 MEMORANDUM 2
Annual Alarm Permit Fees. Municioal Ordinance 8.5
Fees charged for new alarm permits within the city limits and for renewal
of those permits annually. The 2010 rate will be $111.00/permit.
False Alarm Fines. Municiaal Ordinance 8.5
Fines charged for false alarm response. The new fine structure for 2010
will be as follows: $115.00 for the first false alarm, $230.00 for the
second, $348.00 for each additional false alarm response each calendar
year. The banks will be charged at $369.00 for each false alarm
responded to.
MEMORANDUM
TO: Mayor and Council
FROM : Trish Aragon, P.E., City Engineer
DATE OF MEMO: November 20, 2009
MEETING DATE:
RE: Proposed Pernlit Review and Encroachment Fees for 2010
SUMMARY: This memo lists the proposed changes in the Engineering Department fees for the year
2010.
llISCUSSION:
There is a new recording fee for permanent encroachments. In the past applicants have not been
consistent with recording their encroachments with the county clerk and recorder office; instead the
Engineering dept has been recording the encroachments on the applicant's behalf. This fee is to cover
those costs with recording.
Earth retention fees payments associated with construction will decrease by 50%. 2009 was the first
year this fee was instituted. After reviewing the fee with upcoming land applications it appears that the
fee is higher than it was intended to be. This proposed adjustment will bring the fee in line to what it
was intended to be.
The department is proposing a plan review fee to cover costs associated with plan review and
construction mitigation inspections associated with building permits..
Below is a summary of the Engineering fees. The fees that are new and or changing are highlighted:
Sec. 2.12.051 Engineering Department Fees
Encroachment License application and processing fee 353.00
Vacation application and processing fee 353.00
Right-of--way permit application and processing fee
(waived for sidewalk replacement work) 353.00
Temporary occupation of ROW under encroachments
by commercial operations not associated with construction, $2 50 per sq. ft/month
including contractors and vendors
Permanent Encroachment Fee $1,000.00 per permit
Permanent Encroachment Recording Fee $50.00
Temporary occupation of ROW under encroachments within the core
by commercial operations associated with construction,
including contractors and vendors $5.44/ sq. ft /month
Temporary occupation of ROW under encroachments outside of the core
by commercial operations associated with construction ,
including contractors and vendors $2.72/ sq. ft /month
Permanent encroachment for earth retention $1.32/cu. ft. per month
Map and plan printing $4.00 per copy
Engineering Plan check fees are based on the building permit fee and equal to 25% of the total building
permit fee.
Additional plan review required by changes, additions, revisions to plans $80/hr
(Minimum charge '/2 hr)
Engineering Plan review fees may be waived or reduced in the discretion of the City Engineer for projects
serving a public purpose, proposed by a nonprofit organization or in which the fee may be excessive for the
work proposed.
FINANCIAL IMPLICATIONS: The earth retention fee will balance the increased costs associated
with these systems if left in the ROW.
The plan review fees are expected to cover approximately 50% of the costs associated with plan review
and inspection.
RECOMMENDATION: Staff recommends approval of a plan review fees and a 50% decrease in
earth retention fees.
ALTERNATIVES: Council could approve larger or smaller fees.
CITY MANAGER COMMENTS:
MEMORANDUM
To: Mayor and City Council
THRU: Don Taylor, Finance Director
Fxom: Mary Lackner, GIS Manager
RE: GIS Services & Products 2010 Fees
DATE: November 12, 2009
The GIS Department GIS provides customer mapping services for the City of Aspen and
Pitkin County. The fees are established through the City of Aspen Municipal Code and
collected by the City. In 2008, the GIS Department generated $73,468 in revenue.
GIS is requesting a standard increase of 4% to our fee schedule. The proposed fees listed
below reflect a 4% increase.
2.12.053 Geographic Information System (GIS) Department fees.
Printed Maps
Large format (greater thanl l" x 17") $ 28.95 each
Small format (1 I" x 17" or less) $ 10.80 each
Custom Mapping Services $ 144.50 hour
Minimum charge $ 72.25
Mailing Lists $ 115.00 per seazch
Plus $1.11/per sheet of labels
Digital Data Services $144.50 hour
Minimum charge per data layer $ 32.20
(geographic extent varies)
~ b.
MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Director of Finance
DATE OF MEMO: December 1, 2009
MEETING DATE: December 7, 2009
~- Approval of Comcast Cable Franchise Agreement
REQUEST OF COUNCIL: Staff requests Council to review provisions of Cable TV Franchise
Agreement and to approve the franchise agreement on first reading.
PREVIOUS COUNCIL ACTION: City Council adopted the terms of the existing franchise
agreement in April, 2000. The final draft of the proposed franchise agreement was reviewed by
City Council in July, 2009. Since that time it has been working its way through Comcast
corporate review and is now ready for formal approval.
BACKGROUND: Over the last year, the City of Aspen, Pitkin County, and the Town of
Snowmass Village have been negotiating with Comcast Cable TV Company over the terms of
their respective franchises. We jointly employed the services of River Oaks Communication
company which is a consulting agency specializing in utility franchise agreements. The
arrangement had benefits to all of the parties as it gave us more negotiating power, economies of
scale on the consulting services and gave a benefit to Comcast of getting three franchises done at
once and had a single point of contact.
The franchise agreement is essentially a contract between the City and the Cable TV Company,
giving the Cable Company the right to use the City Rights of Way to install its facilities and
equipment, under terms and conditions provided for in the Agreement, in exchange for certain
considerations given to the City. The federal government has imposed numerous preemptions on
what can be included or negotiated in the terms of the agreement so the City is limited as to what
it can negotiate for these agreements.
DISCUSSION: The current agreement expires in May, 2010. Comcast has taken it through
their corporate review. There aze several major provisions of the agreement that are outlined
below with a little background information for each.
Term: The proposed of the agreement is 7 yeazs, a few yeazs shorter than the last
agreement which was ten years. These have tended to be shorter and were originally
Page 1 of 2
offered at five by Comcast. There aze costs to renegotiating the franchise and this will
allow two more years to amortize the costs over.
• Franchise fee: The proposed franchise fee is 5% of gross revenues, the same as the
previous franchise agreement. This is capped by the FCC.
• Complimentary Service: The city continues to receive complimentary service for City
governmental buildings.
• Pubic, Education, Government (PEG) Channels: The City of Aspen, Town of Snowmass
Village, and Pitkin County, have access to three channels on the system at no additional
charge.
• PEG access fee. The PEG access fee would assess 50 cents per residential subscriber per
month to fund capital expenditures related to providing PEG service. This would be
passed on to the consumer and separately displayed on the residential bills. It would
generate about $15,500 a yeaz for reimbursement of capital costs actually expended for
this purpose and could be utilized by the city for the costs of the studio in the council
chambers, upgrades or replacement of equipment or it can be granted to other providers
of PEG access for their equipment costs, such as Grassroots.
• Competitive Equity: The agreement provides that if the City were to grant a franchise to
a competing cable TV provider with terms to the competitor better than the terms in this
agreement we will modify this agreement to include those more favorable terms.
FINANCIALBUDGET IMPACTS If the Council chooses to assess the capital
equipment subscriber fee the City could recover $15,000 per yeaz of equipment costs or make
that available to other PEG programming providers for their equipment costs.
RECOMMENDED ACTION Staff recommends approval of the franchise agreement.
ALTERNATIVES: Council can propose alternatives to the terms that are not covered by FCC
regulation. This would relate primarily to the PEG equipment fee, the term of the agreement or
the competitive equity clause.
PROPOSED MOTION: Move to approve Ordinance #~.
Page 2 of 2
ORDINANCE NO.~
SERIES OF 2009
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CABLE SYSTEM FRANCHISE AGREEMENT BETWEEN
THE CITY OF ASPEN AND COMCAST OF COLORADO/FLORIDA AND AUTHORIZING
AND DIRECTING THE MAYOR TO EXECUTE THE SAME ON BEHALF OF THE CITY
OF ASPEN.
WHEREAS, the City Council of the City of Aspen desires to enter into an agreement
with Comcast of Colorado/Florida to allow use of City right of way for the purpose of providing
cable services to the citizens of the City of Aspen; and
WHEREAS, the parties have agreed to avail themselves of their respective rights as set
forth in Section 626 of the Cable Communications Policy Act of 1984, as amended, relating to
the procedures for negotiating franchise agreements.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1.
That the terms and conditions of the Cable Franchise Agreement between the City of
Aspen and Comcast of Colorado/Florida, Inc., annexed hereto and incorporated herein, aze
hereby approved, and the Mayor is hereby authorized and directed to execute the same on behalf
of the City of Aspen.
1
Section 2.
That if any section, subsection; sentence, clause, phrase or portion of this ordinance is for
any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the validity of
the remaining portions thereof.
Section 3.
That this ordinance shall not have any effect on existing litigation and shall not operate as
an abatement of any action or proceeding now pending under or by virtue of the ordinances
amended as herein provided, and the same shall be construed and concluded under such prior
ordinances.
2
CITY OF ASPEN, COLORADO
CABLE FRANCHISE AGREEMENT
CABLE FRANCHISE AGREEMENT
This Cable Franchise Agreement ("Agreement" or "Franchise") is entered into in Aspen,
Colorado, this day of , 2009, by and between the City of Aspen hereinafter
(the "City' or "Grantor') and Comcast of Colorado/Florida, Inc., who is hereinafter known as
"Grantee". The City and Grantee are sometimes referred to hereinafter collectively as the
"parties."
SECTION 1. RECITALS
1.1 The City is authorized to exercise all of the powers as provided bylaw.
1.2 Pursuant to Federal law, the City has the authority to grant franchises to companies to
build and operate cable systems in the City.
1.3 The City has reviewed Grantee's performance under the prior Agreement and the quality
of service during the prior Agreement term, has identified the future cable-related needs and
interests of the City and its citizens, has considered the financial, technical and legal
qualifications of Grantee, and has determined that Grantee's plans for operating and maintaining
its System are adequate, in a full public proceeding affording due process to all parties.
1.4 The City has a legitimate and necessary regulatory role in ensuring the availability of
cable service, technical capability and reliability of systems in its jurisdiction, the availability of
local programming (including Public, Educational and Governmental Access programming) and
quality Customer service.
1.5 The City is authorized by applicable law to grant one or more nonexclusive Agreements
to construct, operate and maintain cable systems within the boundaries of the City. ,
NOW, THEREFORE, in consideration of the mutual promises made herein, and other
good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
City and Grantee do hereby agree as follows:
SECTION 2. DEFINITIONS
For the purposes of this Agreement, the following terms, phrases, words and their derivations
shall have the meanings given herein. When not inconsistent with the context, words used in the
present tense include the future, words in the plural include the singular, and words in the
singular include the plural. Words not defined shall be given their common and ordinary
meaning. The word "shall" is always mandatory and not merely directory.
"Access" means the availability for Noncommercial use by various public, educational and
governmental agencies, institutions and organizations in the community, including the City and
its designees, of Channels on the System designated for such use as permitted under applicable
law:
(A) "Public Access" means Access where local institutions or residents are the
primary users having editorial control over programming and services.
(B) "Educational Access" means Access where Schools are the primary users having
editorial control over programming and services.
(C) "Governmental Access" means Access where governmental institutions or their
designees are the primary users having editorial control over programming and services.
(D) "Public, Educational and Governmental Access" or "PEG Access" means the
availability for Noncommercial use of capacity on a Channel or Channels on the Cable System
by various governmental and educational agencies and institutions and public organizations,
groups and individuals, including the City and its designees.
"Access Channel" means any Channel, or portion thereof, designated for Noncommercial
Access purposes or otherwise made available to facilitate or transmit Access programming.
"Affiliate" when used in connection with Grantee means any Person who owns or controls, is
owned or controlled by, or is under common ownership or control with Grantee.
"Agreement" means the document in which this definition appears, that is executed between the
City and Grantee, containing the specific provisions of the authorization granted and the
contractual and regulatory agreement created hereby.
"Bad Debt" means amounts lawfully owed by a Subscriber and accrued as revenues on the
books of Grantee, but not collected after reasonable efforts by Grantee.
"Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission
of local television broadcast signals and Access programming.
"Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, and as amended by the
Telecommunications Act of 1996, and any amendments thereto.
"Cable Operator" means any Person or group of Persons, including Grantee, who provide
Cable Service over a Cable System and directly or through one or more Affiliates own a
significant interest in such Cable System or who otherwise control or are responsible for, through
any arrangement, the management and operation of such a Cable System.
"Cable Service" means the one-way transmission to Subscribers of Video Programming, or
other programming service and Subscriber interaction, if any, that is required for the selection or
use of such Video Programming or other programming service.
"Cable Svstem" or "Svstem ` means a facility, consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment that is designed to provide
Cable Service that includes Video Programming and that is provided to multiple Subscribers
within a community, but such term does not include (1) a facility that serves only to retransmit
the television signals of one or more television broadcast stations; (2) a facility that serves
Subscribers without using any public Right-of--Way; (3) a facility of a common carrier that is
subject, in whole or in part, to the provisions of Title II of the Communications Act (47 U.S.C.
Section 201 et seq.), except that such facility shall be considered a cable system (other than for
purposes of Section 621(c) (47 U.S.C. Section 541(c)) to the extent such facility is used in the
transmission of Video Programming directly to Subscribers, unless the extent of such use is
solely to provide interactive on-demand services; (4) an open video system that complies with
federal laws and regulations; or (5) any facilities of any electric utility used solely for operating
its electric utility systems. When used herein, the term "Cable System'' or "System" shall mean
Grantee's Cable System in the Franchise Area unless the context indicates otherwise.
"Channel" means a cable channel as defined in 47 U.S.C. Section 522 (4).
"Designated Access Provider" means the entity or entities designated by the City to manage or
co-manage PEG Access Channel(s) and facilities. The City may be a Designated Access
Provider.
"Expanded Basic Service" means the level of cable programming services received by most
Subscribers above Basic Service and does not include premium orpay-per-view services.
"FCC" means the Federal Communications Commission or its lawful successor.
"Franchise Area" means the incorporated area within the jurisdictional boundaries of the City.
"Gross Revenues'' means any and all revenue derived directly or indirectly by Grantee, or by
Grantee's Affiliates as determined in accordance with GAAP (generally accepted accounting
principles) from the operation of the Grantee's Cable System to provide Cable Services in the
Franchise Area Gross Revenues include, by way of illustration and not limitation, monthly and
other fees charged Subscribers for Cable Services including Basic Service, Expanded Basic
Service, any Tiers of Cable Service, Premium Service, digital service, HDTV service, pay-per-
view, Cable Service installation, disconnection, reconnection and change-in-service fees, Leased
Access Channel fees, all Cable Service lease payments from the Cable System, late fees and
administrative fees, payments received by the Grantee from programmers for carriage of Cable
Services on the Cable System, revenues from rentals of converters or other Cable System
equipment, advertising revenues (including local, regional and national advertising carved on the
Cable System in the Franchise Area and net of commissions paid to an advertising agency),
revenues from program guides, additional outlet fees, franchise fees, revenue from interactive or
other services to the extent they are considered Cable Services under federal or State law, and
revenues from home shopping. Gross Revenues shall include revenue received by any entity
other than the Grantee where necessary to prevent evasion or avoidance of the obligation under
this Agreement to pay the franchise fees. Gross Revenues shall not include (i) Bad Debt,
provided, however, that all or part of any such Bad Debt that is written off but subsequently
collected shall be included in Gross Revenues in the period collected; or (ii) any taxes on
services furnished by the Grantee that are imposed directly on any Subscriber or user by the
State, City or other governmental unit and that are collected by the Grantee on behalf of said
governmental unit; or (iii) the Initial Capital Contribution and monthly Capital Contributions as
required by subsection 10.5 of this Agreement. The franchise fees are not a tax, and are therefore
included in Gross Revenues.
"Headend" or "Hub" means any facility for signal reception and dissemination on the System,
including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors
and other related equipment and facilities.
"Noncommercial" means those products and services that are not promoted or sold. This term
shall not be interpreted to prohibit an Access Channel operator or programmer from soliciting
and receiving financial support to produce and transmit Video Programming on an Access
Channel or from acknowledging a contribution, subject to applicable law.
"Person" means any natural person, sole proprietorship, partnership, joint venture, association,
limited liability entity or corporation, or any other form of entity or organization.
"Premium Service" means Video Programming or other programming service choices (such as
movie Channels) offered to Subscribers on aper-Channel basis.
"Right-of-Wav" or "Rights-of-Wav" means land acquired or dedicated to the public or
hereafter acquired or dedicated to the public and maintained under public authority or by others
including, but not limited to, public streets or roads, highways, avenues, lanes, alleys, bridges,
sidewalks, easements, dedicated utility strips and similar public property or other property
dedicated for compatible uses now or hereafter held by the City within the Franchise Area which
shall entitle the Grantee to the use thereof for the purpose of installing, operating, repairing and
maintaining the Cable System.
"School" means any State-accredited K-12 public educational institution excluding home
schools.
"State" means the State of Colorado.
"Subscriber" or "Customer" means any Person who lawfully receives Cable Services provided
by Grantee by means of the System with Grantee's express permission.
(A) "Commercial Subscriber' means any Subscriber other than a Residential
Subscriber.
(B) "Residential Subscriber" means any Person who receives Cable Service
delivered to single units (as opposed to those on a bulk billing basis).
"Tier" means a category of Cable Services provided by the Grantee for which a separate periodic
rate is charged.
"Video Progrrammine" means programming provided by, or generally considered comparable to
programming provided by, a television broadcast station or cable programmer.
SECTION 3. GRANT OF AGREEMENT
3.1 Grant
(A) The City hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Rights-of--Way within the Franchise Area to construct, operate,
maintain, reconstruct, repair and upgrade a System for the purpose of providing Cable Services,
subject to the terms and conditions set forth in this Agreement and applicable law. This
Agreement shall constitute a right to provide the Cable Services required by and to fulfill the
obligations set forth in this Agreement.
(B) The Grantee, through this Ageement, is granted the right to operate its System
using the City's Rights-of--Way within the Franchise Area in compliance with all construction
codes and regulations. The Grantee specifically agrees to comply with the provisions of
generally applicable City ordinances; provided that in the event of a conflict between the
provisions of ordinances and this Agreement, the express provisions of this Agreement shall
govern. Subject to federal and State preemption, the express provisions of this Ageement
constitute a valid and enforceable contract between the parties.
(C) This Agreement shall not be interpreted to prevent the City from imposing other
conditions, to the extent permitted bylaw, including additiona] compensation conditions for use
of the Rights-of--Way, should Grantee provide service other than Cable Service.
(D) Grantee promises and guarantees, as a condition of exercising the privileges
granted by this Agreement, that any Affiliate offering Cable Service in the Franchise Area, or
directly involved in the management or operation of the System in the Franchise Area, will
comply with the terms and conditions of this Agreement.
(E) No rights shall pass to Grantee by implication. Without limiting the foregoing, by
way of example and not limitation, this Agreement shall not include or be a substitute for:
(1) Any other authorization required for the privilege of transacting and
carrying on a business within the City that may be required bylaws of the City.
(2) Any agreement or authorization required by the City for Rights-of--Way
users in connection with operations on or in Rights-of--Way or public property including, by way
of example and not limitation, street cut permits; or
(3) Any agreements for occupying any other property of the City or private
entities to which access is not specifically granted by this Agreement including, without
limitation, agreements for placing devices on poles, in conduits or in or on other structures.
(F) This Agreement is intended to convey limited rights and interests only as to those
Rights-of--Ways in which the City has an actual interest. It is not a warranty of title or interest in
any Rights-of--Way; it does not provide the Grantee with any interest in any particular location
within the Rights-of--Way; and it does not confer rights other than as expressly provided in the
grant hereof.
(G) This Agreement is an express authorization to provide Cable Services only and
does not authorize or prohibit Grantee's provision of non-Cable Services, telecommunications
services or information services in the Franchise Area. This Agreement is not a bar to the
imposition of any lawful conditions on Grantee with respect to non-Cable Services,
telecommunications services or information services. This Agreement does not relieve Grantee
of any obligation it may have to obtain from the City an authorization to provide non-Cable
Services, telecommunications services or information services or relieve Grantee ofits obligation
to comply with any such authorization(s) that may be lawfully required.
3.2 Use of Rights-of--Way
(A) Grantee may erect, instal], construct, repair, replace, reconstruct and retain in, on,
over, under, upon, across, through, below and along the Rights-of--Way within the Franchise
Area, such wires, cables (both coaxial and fiber optic), conductors, ducts, conduits, vaults,
manholes, amplifiers, pedestals, attachments and other property and equipment as are necessary
and appurtenant to the operation of the System For the provision of Cable Services within the
Franchise Area.
(B) Grantee must install System facilities in a manner that minimizes interference
with the use of the Rights-of--Way by others including others that may be installing
communications facilities.
3.3 Duration
The term of this Agreement and all rights, privileges, obligations and restrictions pertaining
thereto shall be for seven (7) years, unless lawfully terminated sooner as hereinafrer provided.
3.4 Effective Date
(A) The effective date of this Agreement shall be , 2009.
(B) The grant of this Agreement shall have no effect on the Grantee's duty under the
prior agreement or any ordinance in effect prior to the effective date of this Agreement to
indemnify or insure the City against acts and omissions occurring during the period that the prior
agreement was in effect, nor shall it have any affect upon liability to pay all franchise fees (for
any prior years) that were due and owed under a prior agreement. Except as indicated in this
Subsection 3.4 (B), Ordinance No. shall be of no further force or effect.
3.5 Competitive Equity
(A)The Grantee acknowledges and agrees that the City reserves the right to grant one (1) or
more additional franchises or other similar lawful authorization to provide Cable Services
within the Franchise Area; provided, the City agrees that, within ninety (90) days of the
Grantee's request, it shall amend this Franchise to include any material terms or conditions
that it makes available to a new entrant for a Cable System, or provide relief from existing
material terms or conditions, so as to ensure that the regulatory and financial burdens on each
Cable Operator are materially equivalent. For the purposes of this Subsection 3.5(A)
"material terms and conditions" include, but are not limited to: Franchise Fees; insurance;
System build-out requirements; security instruments; Public, Education and Government
Access Channels and support; customer service standards; required reports and related record
keeping; and notice and opportunity to cure breaches. The parties agree that this provision
shall not require a word for word identical franchise or authorization for a competitive Cable
Operator so long as the regulatory and financial burdens on each entity are materially
equivalent. Video Programming services delivered via wireless, Direct Broadcast Satellite,
SMATV or any entity that does not use the public Rights-of--Way are specifically exempted
from the requirements of this Subsection.
(B) Notwithstanding any provision to the contrary, if the Franchise is not modified as set
forth in Subsection 3.5 (A) above, then at any time prior to the commencement of the
Grantee's thirty-six (36) month renewal window provided by Section 626 of the Cable Act,
that anon-wireless facilities based Cable Operator, legally authorized by state or federal law,
makes available for purchase by Subscribers or Customers, Cable Services or multiple
Channels of Video Programming within the Franchise Area without a franchise or other
similar lawful authorization granted by the City, then the term of Grantee's Franchise shall,
upon ninety (90) days written notice from Grantee, be shortened so that the Franchise shall be
deemed to expire on a date thirty six (36) months from the first day of the month following
the date of Grantee's notice. Grantee shall immediately thereafter secure franchise renewal
rights pursuant to Section 626 of the Cable Act with no further notice to the City required.
The City and Grantee shall then enter into proceedings consistent with Section 626 regarding
the renewal process with respect to this Franchise. The City and Grantee shall have all rights
and obligations provided under said Section 626.
(C)Notwithstanding any provision to the contrary, should any non-wireless facilities
based entity provide Cable Service within the Franchise Area during the term of this
Franchise without a franchise granted by the City, then Grantee may assert, at Grantee's
option, that this Franchise is rendered "commercially impracticable," and invoke the
modification procedures set forth in Section 625 of the Cable Act.
3.6 Familiarity with Agreement
The Grantee acknowledges and warrants by acceptance of the rights, privileges and agreement
granted herein, that it has carefully read and fully comprehends the terms and conditions of this
Agreement and is willing to and does accept all reasonable risks of the meaning of the
provisions, terms and conditions herein.
3.7 Effect of Acceptance
By accepting the Agreement, the Grantee: (1) acknowledges and accepts the City's legal right to
issue and enforce the Agreement; (2) accepts and agrees to comply with each and every provision
of this Agreement subject to applicable laws; and (3) agees that the Agreement was granted
pursuant to processes and procedures consistent with applicable law, and that it will not raise any
claim to the contrary.
7
3.8 Police Powers
Grantee's rights hereunder are subject to the lawful police powers of the City to adopt and
enforce laws, ordinances, resolutions and regulations necessary to the safety; health and welfare
of the public, and Grantee agrees to comply with all generally applicable laws, ordinances,
resolutions and regulations lawfully enacted.
SECTION 4. FRANCHISE FEES AND FINANCIAL CONTROLS
4.1 Franchise Fees
As compensation for the use of the City's Rights-of--Way, Grantee shall pay as a franchise fee to
the City, throughout the duration ofthis Agreement, an amount equal to five percent (5%) of
Grantee's Gross Revenues. Accrual of such franchise fees using the Gross Revenue definition
provided herein shall commence within sixty (60) days after the effective date ofthis Agreement.
During such sixty (60) day period, Grantee shall continue to accrue and pay franchise fees based
upon the Agreement in effect with the City prior to this Agreement.
4.2 Payments
Grantee's franchise fee payments to the City shall be computed quarterly for the preceding
calendar quarter ending March 31, June 30, September 30 and December 31. Each quarterly
payment shall be due and payable no later than forty-five (45) days after said dates.
4.3 Acceptance of Payment
No acceptance of any payment shall be construed as an accord by the City that the amount paid
is, in fact, the correct amount, nor shall any acceptance of payments be construed as a release of
any claim the City may have for further or additional sums payable or for the performance of any
other obligation of Grantee.
4.4 Franchise Fee Reports
Each payment shall be accompanied by a written report to the City verified by an authorized
representative of Grantee, containing an accurate statement in summarized form, as well as in
detail, of Grantee's Gross Revenues and the computation of the payment amount. Upon written
request, Grantee shall, no later than thirty (30 days after the end of each calendar year, famish to
the City a statement of Gross Revenues and all payments, deductions and computations for the
year just ended.
4.5 Audits
On an annual basis, upon thirty (30) days prior written notice, the City shall have the right to
conduct an independent audit of Grantee's records reasonably related to the enforcement ofthis
Agreement and to calculate any amounts determined to be payable under this Agreement.
Provided Grantee cooperates in making all relevant records available to Citys representative
upon reasonable advance written request, the City will in good faith attempt to complete each
audit within six (6) months, and the audit period shall not be any greater than the previous three
(3) years. Any undisputed amounts due to the City as a result of the audit shall be paid within
thirty (30) days following written notice to the Grantee by the City, which notice shall include a
copy of the audit findings. If an underpayment is discovered as the result of an audit, Grantee
shall pay, in addition to the amount due, interest at the prime rate as listed in the Wall Street
Journal on the date the payment was due calculated from the date the underpayment was
originally due until the date the Grantee sends the payment. If the audit shows that franchise fees
have been underpaid by ten percent (10%) or more in a calendar year, Grantee shall pay the cost
of the audit up to a maximum of $ 10,000.
4.6 Financial Records
Grantee agrees to meet with a representative of the City upon request to review Grantee's
methodology ofrecord-keeping, financial reporting, the computing of franchise fee obligations,
the understanding of which the City deems necessary for reviewing reports and records that are
relevant to the enforcement of this Agreement.
4.7 Interest on Late Payments
In the event any payment is not received within forty five (45) days from the end of the calendar
quarter, Grantee shall pay, in addition to the payment or sum due, interest on the amount due at
the prime rate as listed in the Wall Street Journal calculated from the date the payment was due
until the date the Grantor receives the payment.
4.8 Additional Commitments Not Franchise Fees
No term or condition in this Agreement shall in any way modify or affect Grantee's obligation to
pay franchise fees. Although the total sum of franchise fee payments and additional
commitments set forth elsewhere in this Agreement may total more than five percent (5%) of
Grantee's Gross Revenues in any 12-month period, Grantee agrees that the additional
commitments are excluded from franchise fees and are not to be offset or credited against any
franchise fee payments due to the City, nor do they represent an increase in franchise fees to be
passed through to Subscribers pursuant to federal law.
4.9 Payment on Termination
If this Agreement terminates for any reason, the Grantee shall file with the City within thirty (30)
calendar days of the date of the termination, a financial statement, certified by an independent
certified public accountant, showing the Gross Revenues received by the Grantee since the end of
the previous fiscal year. Within thirty (30) days of the filing of the certified statement with the
City, Grantee shall pay any unpaid amounts as indicated. If the Grantee fails to satisfy its
remaining financial obligations as required in this Agreement, the City may do so by utilizing the
funds available in security provided by the Grantee.
4.10 Bundling
The City acknowledges that, during the term of this Agreement, Grantee may offer to its
Subscribers a bundled or combined package of services consisting of Cable Services and non-
Cab]e Services. The Grantee may not unfairly or unlawfully allocate prices for bundled services
for the purpose of evading payment of franchise fees to the City. If a dispute arises between the
parties regarding this matter, the City and Grantee will meet within ten (] 0) days of such notice
to the other and discuss such matters in good faith in an attempt to reach a reasonable
compromise thereof.
4.11 Tax Liability
The franchise fees shall be in addition to any and all taxes or other levies or assessments which
are now or hereafter required to be paid by businesses in general by any law of the City, the State
or the United States including, without ]imitation, sales, use, utility and other taxes, business
license fees or other payments. Payment of the franchise fees under this Agreement shall not
exempt Grantee from the payment of any other generally applicable license fee, permit fee, tax or
charge on the business, occupation, property or income of Grantee that maybe lawfully imposed
by the City, State or the United States.
SECTION 5. ADMINISTRATION AND REGULATION
5.1 Authority
The City shall be vested with the power and right to administer and enforce the requirements of
this Agreement and the regulations and requirements of applicable law in the public interest,
including the'Cable Act, or to delegate that power and right of administration, or any part thereof,
to the extent authorized under federal, State and local law, to any agent in the sole discretion of
the City provided written notice thereof is given to the Grantee. Grantee shall have the right to
appeal to the City Council any adverse determination made by the City delegate.
5.2 Rates and Charges
Al] of Grantee's rates and charges related to or regarding Cable Services shall be subject to
regulation by the City (if the City so elects to regulate) to the full extent authorized by applicable
federal, State and local laws.
5.3 No Rate Discrimination
(A) All of Grantee's rates and charges shall be published (in the form of a publicly-
availablerate card), and shall benon-discriminatory as to all Persons of similar classes, under
similar circumstances and conditions. Nothing herein shall be construed to prohibit:
(]) the temporary reduction or waiving of rates or charges in conjunction with
promotional campaigns; or
(2) the offering of reasonable discounts to similarly situated Persons.
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(B) The Grantee's late fee and disconnection policies and practices shall be non-
discriminatory, and such policies and practices, and any fees imposed pursuant to this subsection,
shall apply equally in all parts of the Franchise Area without regard to the neighborhood or
income level of the Subscribers.
5.4 Filing of Rates and Charges
(A) Upon written request, Grantee shall provide the City a complete schedule of
applicable rates and charges for Cable Services provided under this Agreement.
(B) On an annual basis, Grantee shall upon written request provide a complete
schedule of current rates and charges to lease a Leased Access Channel. The schedule shall
include a description of the price, terms and conditions established by Grantee for Leased Access
Channels.
5.5 Performance Evaluation
(A) Evaluation sessions may be held by the City during the term of this Agreement
within thirty (30) days of the City's written request to Grantee, but no more often than annually.
(B) All evaluation sessions shall be open to the public and announced at least one
week in advance in a newspaper of general circulation in the Franchise Area.
(C) Topics that maybe discussed at any evaluation session may include, but are not
limited to, Cable Service rates, liquidated damages, free or discounted Cable Services,
application of new technologies, System performance, Cable Services provided, programming
offered, Customer complaints, privacy, amendments to this Agreement, judicial and FCC rulings,
line extension policies, and the City's or Grantee's rules; provided that nothing in this subsection
shall be construed as requiring the renegotiation of this Agreement or any provision hereof.
SECTION 6. FINANCIAL AND INSURANCE REQUIREMENTS
6.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold the City, its
elected officials, officers, Councils, commissions, agents and employees, harmless from any
action or claim for injury, damage, loss, liability, cost or expense, including court and appeal
costs and attorneys' fees and expenses, arising from any casualty or accident to Person or
property, including, without limitation, defamation and all other damages in any way arising out
of, or by reason of, any construction, excavation, operation, maintenance, reconstruction or any
other act done under this Agreement, by or for Grantee, its agents or its employees, or by reason
of any neglect or omission of Grantee, its agents or its employees. The City s fees and expenses
shall include the reasonable value of any services rendered by the City Attorneys office or any
other employees of the City or its agents. Grantee shall consult and cooperate with the City
while conducting its defense of the City.
(B) Duty of Defense. The fact that Grantee carries out any activities under this
Agreement through independent contractors shall not constitute an avoidance of or defense to
Grantee's duty of defense and indemnification under this subsection.
(C) Duty to Give Notice and Tender Defense. The City shall give the Grantee timely
written notice of any claim or the commencement of any action, suit or other proceeding covered
by the indemnity in this Agreement. In the event any such claim arises, the City or other
indemnified party shall tender the defense thereof to the Grantee and the Grantee shall have the
obligation and duty to defend, settle or compromise any claims arising thereunder, and the City
shall cooperate fully therein; provided, however, no settlement shall be made on behalf of the
City without the City's written consent.
(D) Separate Representation. If separate representation to fully protect the interests of
both parties is necessary, such as a conflict of interest between the City and the counsel selected
by Grantee to represent the City, another attorney shall be selected.
6.2 Insurance Requirements
(A) General Requirement. Grantee shall at its own expense purchase and maintain
the insurance required herein with companies duly licensed to do business in the State of
Colorado, possessing a current A.M. Best, Inc. Rating of "A=' or better.
(B) Minimum Insurance Limits. Grantee must maintain during the Agreement and for
a period oftwelve (12) months after expiration, termination or nonrenewal thereof, insurance in
effect in accordance with the minimum insurance limits herein set forth by the City. The Grantee
shall provide a certificate of insurance for the following minimum insurance limits:
(1) Commercial General Liability: Three million dollars ($3,000,000)
aggregate limit per occurrence for bodily injury, personal injury and property damage and three
million dollars ($3,000,000) products and completed operations.
(2) Automobile Liability: One million dollars ($1,000,000) combined single
limit per accident for bodily injury and property damage.
(3) Employer's Liability: Five hundred thousand dollars ($500,000).
(4) Workers Compensation Insurance in accordance with State law
requirements.
(5) Umbrella or Excess Liability Insurance: Five million dollars ($5,000,000).
Grantee shall be responsible for judgments, settlements, damages, costs,
attorneys' fees and expenses that exceed the limits of Grantee's insurance coverage.
(C) Endorsements.
(1) All policies shall contain, or shall be endorsed so that:
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(a) The City shall be designated as an additional insured.
(b) The Grantee's insurance coverage shall be primary insurance with
respect to the City, its elected officials, officers, Councils, commissions, agents and employees.
Any insurance or self-insurance maintained by the City, its elected officials, officers, Councils,
commissions, agents and employees shall be in excess of the Grantee's insurance and shall not
contribute to it.
(c) Grantee's insurance shall apply separately to each insured against
whom a claim is made or lawsuit is brought, except with respect to the limits of the insurers
liability.
(2) The insurance shall not be cancelled or materially altered so as to be out of
compliance with the requirements of this subsection without thirty (30) days written notice first
being given to the City. If the insurance is cancelled or materially altered so as to be out of
compliance with the requirements of this subsection, Grantee shall provide a replacement policy.
Grantee agrees to maintain continuous uninterrupted insurance coverage, in the amounts
required, for the duration of this Agreement and thereafrer as applicable.
(D) Verification of Coverage. The Grantee shall famish the City with certificates of
insurance naming City as an additional insured. The certificates for each insurance policy are to
be signed by a person authorized by that insurer to bind coverage on its behalf The certificates
for each insurance policy are to be on standard forms or such forms as are consistent with
standard industry practices, and are to be received by the City within thirty (30) days of
acceptance of this Agreement by Grantee. The Grantee hereby warrants that its insurance
policies satisfy the requirements of this Agreement.
6.3 Self-Insured Retentions
]f Grantee changes its policy to include aself-insured retention, the Grantee shall give written
notice of such change to the City. The City's approval will be given if the self-insured retention
is consistent with standard industry practices. Any self-insured retention of the policies shall not
in any way limit Grantee's liability to the City.
6.4 Bond
(A) Grantee shall provide a Performance Bond in the amount of Ten thousand dollars
($10,000) to ensure the faithful performance of its responsibilities under this Agreement and
applicable law including, byway of example and not limitation, its obligation to relocate and
remove its facilities and to restore City Rights-of--Way and other property. Grantee maybe
required to obtain additional bonds in accordance with the City s ordinary practices. The bond
shall be in a form reasonably acceptable to the City Attorney. Grantee shall pay all premiums or
costs associated with maintaining the bond, and shall keep the same in full force and effect at all
times.
]3
(B) The bond shall not be cancelled or materially altered so as to be out of compliance
with the requirements of this subsection without thirty (30) days written notice first being given
to the City. If the bond is cancelled or materially altered so as to be out of compliance with the
requirements of this subsection, Grantee shall provide a replacement bond. Grantee agrees to
maintain a continuous uninterrupted bond in the amounts required for the duration of this
Agreement or thereafrer as specified in this Agreement.
SECTION 7. CUSTOMER SERVICE
7.l Customer Service Standards
Customer Service Standards maybe adopted separately by ordinance or resolution by the City.
In any event, Grantee shall comply with the customer service standards as outlined by federal law
(namely 47 CFR Section 76.309) and as those maybe amended from time to time. The City agrees
to provide written notice to Grantee if it intends to enact customer service standards more stringent
than those contained in 47 CFR Section 76.309.
To the extent Grantee makes available a payment center so that Customers may have an opportunity
to pick up and return equipment, pay bills and ask questions ofrepresentatives of Grantee, if
Grantee elects to close such payment center, it shall provide thirty (30) days advance notice of such
closure to the City.
7.2 Subscriber Privacy
Grantee shall comply with privacy rights of Subscribers in accordance with applicable federal
and State laws.
SECTION 8. REPORTS AND RECORDS
8.1 Open Records
The City shall have access to, and the right to inspect, any books and records of Grantee and its
Affiliates that are reasonably related to the enforcement of the provisions of this Agreement.
Such review shall be at the Grantee's business office during normal business hours and on a non-
disruptivebasis. Such notice shall specifically reference the Section or subsection of the
Agreement that is under review so that the Grantee may organize the necessary books and
records for easy access by the City. Grantee shall not deny the City access to any of Grantee's
records on the basis that Grantee's records are under the control of any Affiliate. The City may,
in writing, request copies of any such records or books, and Grantee shall provide such copies
within thirty (30) days of the receipt of such request except for those documents deemed
proprietary and confidential. One copy of all reports and records required under this or any other
subsection shall be furnished to the City at the sole expense of Grantee. If the requested books
and records are too voluminous, or for security reasons cannot be copied or removed, then
Grantee may request, in writing within thirty (30) days of receipt of such request, that the City
inspect them at Grantee's office. If any books or records of Grantee are not kept in a local office
and not made available in copies to the City upon written request as set forth above, and if the
City determines that an examination of such records is necessary for the enforcement of this
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Agreement, then all reasonable City travel expenses incurred in making such examination shall
be paid by Grantee.
8.2 Confidentiality
(A) Notwithstanding anything to the contrary set forth in this Agreement, the Grantee
shall not be required to disclose information which it reasonably deems to be proprietary or
confidential in nature. Grantee shall not be required to provide Customer information in
violation of Section 63 ] of the Cable Act or any other applicable federal or State privacy law.
For purposes of this subsection, the terms "proprietary or confidential" include, but are not
limited to, information relating to the Cable System design, Customer lists, marketing plans or
financial information unrelated to the calculation of franchise fees. Grantee may make
proprietary or confidential information available for inspection but not copying or removal by the
City's representative.
(B) Grantee shall be responsible for clearly and conspicuously identifying the books,
records and maps which are confidential or proprietary, and shall provide a brief written
explanation as to why such information is confidential and how it maybe treated as such under
State or federal law. If the City receives a demand from any Person for disclosure of any
information designated by Grantee as confidential, the City shall, so far as consistent with
applicable law, advise Grantee and provide Grantee with a copy of any written request by the
party demanding access to such information within a reasonable time, but before the proposed
release. Unless otherwise ordered by a court or agency of competent jurisdiction, the City agrees
that, to the extent permitted by State or federal law, it shall deny access to any of Grantee's books
or records marked confidential or proprietary as set forth above.
8.3 Records Required
Grantee shall provide to the City upon written request:
(A) A full and complete set of "route' maps, showing the general location of all
System equipment installed or in use in the Rights-of--Way, that are generated in Grantee's
normal course ofbusiness;
(B) A copy of all FCC filings on behalf of Grantee that relate to the operation of the
System in the Franchise Area; and
(C) A list of Grantee's Cable Services, rates and Channel line-up.
8.4 Copies of Federal and State Reports
Upon reasonable written request, Grantee shall submit to the City copies of any pleading,
applications, notifications, communications and documents of any kind submitted by Grantee or
its Affiliates to any federal, State or local courts, regulatory agencies and other government
bodies if such documents directly relate to the operation of Grantee's System within the
Franchise Area. Grantee shall submit such documents to the City no later than thirty (30) days
after receipt of the City s request.
IS
8.5 Complaint File and Reports
(A) Grantee shall keep an accurate and comprehensive compilation of any and al]
Customer complaints escalated to the City and provided to Grantee, and Grantee's actions in
response to those complaints, in a manner consistent with the privacy rights of Subscribers.
Upon written request of at least thirty (30) days written notice, this file shall be made available to
the City during normal business hours.
(B) Also, upon written request, but no more often than once annually, Grantee shall
provide an executive summary report to the City within thirty (30) days of the City's written
request that shall include the following information:
(I) Nature and type of Customer complaints escalated to the City and
provided to Grantee;
(2) A summary of unplanned service interruptions or Cable System outages
lasting longer than four hours;
(3) Phone activity report of complaints escalated to the City and provided to
Grantee;
(4) Video Programming changes (additions/deletions);
(5) Such other information as reasonably requested by the City and related to
the enforcement of this Franchise.
8.6 False Statements
Any intentional false or misleading statement or representation in any report required by this
Agreement shall be a material breach of this Agreement and may subject Grantee to all remedies,
legal or equitable, that are available to the City under this Agreement or otherwise.
SECTION 9. PROGRAMMING
9.1 Broad Programming Categories
Grantee shall provide at least the following broad categories of programming to the extent such
categories are reasonably available:
(A) Educational programming;
(B) News, weather and information;
(C) Sports;
(D) General entertainment including movies;
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(E) Children, family oriented;
(F) Arts, culture and performing arts;
(G) Foreign Language programming;
(H) Science/documentary; and
(I) PEG Access programming.
9.2 Deletion of Broad Programming Categories
Grantee shall not delete or so limit as to effectively delete any broad category of programming
within its control without prior written notice to the City.
9.3 Obscenity
Grantee shall comply with applicable laws related to obscenity.
9.4 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control or lockout
device, traps or filters to enable a Subscriber to prohibit viewing of a particular Cable Service
during periods selected by the Subscriber. Grantee shall inform its Subscribers of the availability
of the lockout device at the time of their initial subscription and upon request thereafter.
9.5 Complimentary Cable Service
(A) The Grantee shall provide without charge within seven (7) days of a written
request, a Standard Installation and one outlet of Basic Service and Expanded Basic Service (and
any necessary converter) to City buildings now existing or hereafter constructed within the
Franchise Area, provided that the buildings are either owned or ]eased and occupied by the City,
fire station(s), police station(s), libraries or School(s), or the City's Designated Access Provider
and provided further that they are already served by the Grantee's Cable System or are within one
hundred twenty five (125) aerial feet or sixty (60) underground feet (a "Standard Installation') of
its Cable System. A Standard Installation does not include exceptional circumstances such as
those involving railroad crossings or going under rivers.
(B) The Cable Service provided shall only be used for lawful purposes, shall not be
used for commercial purposes or to entertain public or private groups and shall not be located in
public areas (except For those outside of the City Council's Meeting Room and displaying
content related to the City Council meetings). Complimentary cable services shall not be used in
areas where the City would normally enter into a commercial contract, by way of example and
not limited to: recreation center work out facilities and community housing. The City shall take
reasonable precautions to prevent any use of the Grantees Cable System in any manner that
results in the inappropriate use thereof. Grantee shall have the right to discontinue
17
complimentary cable service hookups that do not comply with this Franchise provided that 30
days written notice is first given by Grantee to the City and if there is continued noncompliance
with Subsection 9.5(B), then Grantee may discontinue complimentary cable service hookups that
do not comply with this Franchise.
(C) Unless it currently exists, the Grantee shall not be required to provide a free outlet
to the above buildings where anon-Standard Installation is required, unless the City or building
owner/occupant agrees to pay the incremental cost of any necessary Cable System extension and
non-Standard Installation.
(D) If additional outlets of complimentary Cable Service are provided to buildings
beyond those required herein, the building owner/occupant shall pay the usual installation fees
and recurring charges associated therewith. It is agreed, however, that for those existing
complimentary accounts as of the date hereof there shall not be any recumng charges except for
the converter boxes used for Premium Services or any similar additional services associated
therewith.
(E) The monetary value of complimentary Standard Installations, converters and
Cable Service provided by the Grantee pursuant to this subsection shall not be offset against any
franchise fees payable to the City.
9.6 Leased Access Channels
Grantee shall offer Leased Access Channel capacity on such terms and conditions and rates as
maybe negotiated with each lessee subject to the requirements of Section 6l2 of the Cable Act
and the rules and regulations of the FCC.
9.7 Continuity of Service
It shall be the right of all Subscribers to continue to receive Cable Service from Grantee insofar
as their financial and other obligations to Grantee are satisfied. Grantee shall use its best efforts
to ensure that all of its Subscribers receive continuous, uninterrupted Cable Service.
SECTION 10. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
10.1 Access
Grantee shall continue to make available and maintain throughout the term of this
Franchise, at no additional charge, one (1) Access Channel that shall be shared by the City
Aspen, the Town of Snowmass Village and Pitkin County and which is currently carried on the
Cable System. Additionally, Grantee shall continue to make available and maintain throughout
the term of this Franchise at no additional charge, two (2) Access Channels that shall be shared
by the City Aspen, the Town of Snowmass Village and Pitkin County and which are currently
carried on the Cable System.
(B) In the event Grantee makes any change in signal delivery technology which
directly affects the signal quality or transmission of any Access Channel programming or
(A)
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services, the Grantee shall, at its own expense, take necessary technical steps, acquire new
equipment and, in addition, provide the necessary assistance so that the Access facilities and
equipment may be used as intended by the Access providers, including, among other things, so
that live and taped programming can be cablecast with as good or better signal quality than
existed prior to such change.
(C) Notwithstanding anything to the contrary in this Franchise and irrespective of
whether there is effective competition from DBS (satellite) the Public, Educational and
Governmental Access Channels shall be carried on the Basic Tier and there shall not be any
initial or recurring charges in connection with them or converter boxes or equipment necessary to
view them, unless applicable law otherwise allows.
10.2 Triggers for an Additional Access Channel
The City may require Grantee to make available no more than one (I) additional activated
downstream Access Channel when all (excluding the Channel that carries airport programming)
of the existing Access Channels required by Subsection 10.1 are used for locally scheduled
programming (but excluding character generated and filler programming, e.g., video bulletin
board, NASA, AM/FM Radio Programming), during fifty percent (50%) of the hours between
10:00 A.M. and 10:00 P.M., Monday through Friday during any consecutive ten (10) week
period. It is understood and agreed that as between Aspen, Pitkin County and the Town of
Snowmass Village, there may be only 1 additional activated downstream Access Channel during
this current Franchise term. Upon a showing that this threshold has been met, after a Public
Hearing and opportunity for citizen input, Grantee shall make available, within four (4) months
of the City's written request, one (I) additional Access Channel for Access programming
purposes. Locally scheduled programming under this Subsection means only non-commercial,
not for profit, non-competitive, government, educational or public access programming that is
created or produced within Aspen, the Town of Snowmass Village or Pitkin County. Such
programming shall not be considered as counting toward the calculation in this Subsection 10.2
after three (3) cablecasts (initial, first repeat and second repeat). The City acknowledges that
some other programming services may need to be moved or deleted to accommodate such
additional Access Channel.
10.3 Management and Control of Access Channels
The City may authorize Designated Access Providers to control, operate and manage the use of
any and all Access facilities including, without limitation, the programming of Access Channels.
The City or its designee may formulate rules for the operation of the Access Channels;
consistent with this Agreement. Nothing herein shall prohibit the City from authorizing itself to
be a Designated Access Provider or from assigning several Designated Access Providers with
similar types of programming to share Access Channel space.
10.4 Access Channel Numbers
Grantee will use commercially reasonable efforts to minimize the movement of Access Channel
numbers. Grantee shall provide to the City a minimum of sixty (60) days notice prior to any
relocation of an Access Channel, unless the change is required by federal law or for a
19
demonstrable technical reason, in which case Grantee shall give the City at ]east thirty (30) days
written notice. In addition, Grantee shall provide the City with ninety (90) thirty second
promotional spots on the System during a thirty (30) day period prior to the date of the change in
the location of an Access Channel. The City or its designee shall have sole responsibility to
produce and deliver the spots to Grantee on a timely basis and in a cablecast-ready state. Such
spots shall promote the Access Channel and the Channel relocation only for the purpose of
notifying Subscribers of the change in Channel designation, and shall not include any mention of
any third party or other sponsors. Placement of the spots shall be based on available inventory.
All spots are subject to Grantee's approval, such approval not to be unreasonably withheld or
delayed. If Designated Access Providers can demonstrate significant economic impact due to
rebranding, Grantee and City shall meet and attempt in good faith to address Grantee paying for
some of the rebranding costs.
10.5 Access Capital Costs
(A) Within thirty (30) days ofreceiving written notice and after the Effective Date of
this Agreement, Grantee shall provide a one time contribution of $15,039 to the City (the
"Initial Capital Contribution") which the City and/or its Designated Access Providers (at City s
discretion) may use only for capital purposes (studios, facilities, equipment, equipment used for
video streaming government meetings, etc.) for PEG Access. Alternatively, the City may elect
to defer receiving the Initial Capital Contribution, but cannot request the Initial Capital
Contribution if less than one year exists on the Tenn of this Agreement. If it does make this
election to defer, the City shall notify Grantee in writing within (30) days of the Effective Date.
If the City elects to receive the Initial Capital Contribution at a later date, City shall have a public
hearing. If the City elects to receive the Initial Capital Contribution at a later date as provided
herein, it shall so notify Grantee in writing and Grantee shall thereafter have sixty (60) days to
pay the Initial Capital Contribution to the City. The City understands that, pursuant to federal
law, Grantee intends to collect the Initial Capital Contributions from Residential Subscribers as a
separate line item on Subscribers' bills in addition to the price for Cable Service.
(B) When the Initial Capital Contribution specified in subsection (A) is fully
recovered by Grantee, the Grantee shall provide to the City up to $0.50 per month per Residential
Subscriber for Access capital (payable quarterly as the "Quarterly Capital Contribution`).
Grantee shall not be responsible for paying the Quarterly Capital Contribution with respect to
gratis or Bad Debt accounts.
(C) Each Quarterly Capital Contribution payment shall be due and payable no later
than forty-five (45) days following the end of the quarter from when the Quarterly Capita]
Contribution takes effect. The City shall have discretion to allocate the Initial Capital
Contribution and Quarterly Capital Contribution in accordance with applicable law, provided that
the City submits a summary of capital expenditures from the Initial Capital Contribution and
Quarterly Capital Contribution to Grantee within sixty (60) days of the end of each calendar year.
The City may adjust the amount of the Quarterly Capital Contribution (not to exceed $.50 per
Residential Subscriber per month) on an annual basis, or choose to waive collection of the
Quarterly Capital Contribution, provided that Grantee is given ninety (90) days advance written
notice.
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(D) The City and Grantee agree that recovery of the Initial Capital Contribution and
subsequent Quarterly Capital Contributions shall be referred to on Subscribers' bills as a "PEG
Fee', or language substantially similar thereto.
(E) To the extent the City has made or makes Access capital investments using City
funds prior to receiving necessary Initial Capital Contribution and Quarterly Capital Contribution
funds, the City is entitled to apply the Initial Capital Contribution and Quarterly Capital
Contribution payments from Grantee toward such City capital investments. It is further agreed
that the Initial Capital Contribution and Quarterly Capital Contributions must be applied toward
or used for Access Programming equipment and facilities in the City, Pitkin County or the Town
of Snowmass Village.
(F) The Initial Capital Contribution and Quarterly Capital Contribution payments are
not an advance against any franchise fee payment, and there shall not be any offset or credit
against any franchise fee payment.
(G) Grantee agrees that at the end of the initial seven (7) year term and if the
Agreement is extended for an additional seven (7) years, Grantee shall provide an additional
capital contribution matching the Initial Capital Contribution and will continue collecting and
remitting the Quarterly Capital Contribution to the City so long as the City elects to receive
same. Grantee shall recoup the additional initial capital contribution and Quarterly Capital
Contributions under the same recovery terms and conditions as the Initial Capital Contribution
and Quarterly Capital Contributions as set forth above.
10.6 Technical Quality
The Grantee shall maintain all Access Channels consistent with the quality of Grantee's other
Channels on the same tier of service. The Grantee shall provide routine maintenance and repair
and replace, if necessary, any of Grantee's equipment required to carry a quality signal from the
Access facilities to Subscribers. Should the City or its Designated Access Provider elect to
upgrade any of the equipment at its facilities, the City or its Designated Access Provider shall be
responsible for upgrading the equipment at its costs.
10.7 Return Lines
Grantee shall, at its expense, maintain the existing operating return lines sufficient to enable
character generated, prerecorded and live cablecasts from Aspen City Hall located at 130 South
Galena, Aspen, CO 8161 I ;Pitkin County Airport, located at 233 East Airport Road, Suite A,
Aspen, CO 81612, Colorado Mountain College, RAFTA and the GrassRoots TV studio located
at 110 East Hallam Street in Aspen to the Headend to enable the distribution of Access
programming to Subscribers. Grantee shall not be required to maintain return lines to the
GrassRoots TV studio if the City ceases to use Grass Roots as a Designated Access Provider.
Upon written request of the City, Grantee shall construct and maintain additional fiber optic
retum lines, at City s expense, from other locations within the Franchise Area which deliver
Access programming to Subscribers.
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SECTION 11. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
11.1 Construction
(A) Subject to applicable laws and this Agreement, Grantee shall perform all
maintenance, construction, repair and upgrades necessary for the operation of its System in the
Rights-of--Way. All work regarding Grantee's System shall, regardless of who performs the
work, be and remain Grantee's responsibility. Grantee shall apply for, and obtain, all permits
necessary for construction or installation of any facilities and for excavating and laying any
facilities within the Rights-of--Way. Grantee shall pay all applicable fees upon issuance of the
requisite permits by the City to Grantee.
(B) As a condition of any permit so issued, the City may impose such conditions and
regulations as are necessary for the purpose of protecting any structures in such Rights-of--Way,
proper restoration of such Rights-of--Way and structures, protection of the public and the
continuity of pedestrian or vehicular traffic.
(C) In the event that emergency repairs are necessary, Grantee shall immediately
notify the City of the need for such repairs. Grantee may initiate such emergency repairs and
shall apply for appropriate permits within forty-eight (48) hours after discovery of the emergency,
or as soon as reasonably practical.
11.2 One Call Notification
Prior to doing any work in the Rights-of--Way, Grantee shall follow established procedures,
including contacting the Utility Notification Center of Colorado and comply with all applicable
State statutes. Grantee shall also comply with generally applicable ordinances and permitting
requirements before digging in the Rights-of--Way.
11.3 Restoration of Rights-of--Way
(A) Whenever Grantee disturbs the surface of any Rights-of--Way for any purpose,
Grantee shall promptly restore the Rights-of--Way to a condition reasonably comparable to the
condition of the Rights-of--Way immediately prior to such disturbance, normal wear and tear
excepted. When any opening is made by Grantee in a hard surface pavement in any Rights-of-
Way, Grantee shall promptly refill the opening and restore the surface as required by its permit.
(B) If the Grantee fails to promptly restore the Rights-of--Way, the City may, after
providing reasonable notice to Grantee, refill or repave any opening made by Grantee in the
Rights-of--Way, and the reasonable expense thereof shall be paid by Grantee. The City may, after
providing reasonable notice to Grantee, repair any work done by Grantee that, in the
determination of the City, does not conform to applicable City specifications. The reasonable
cost thereof, including the costs of inspection and supervision, shall be paid by Grantee. Al]
excavations made by Grantee in Rights-of--Way shall be properly safeguarded for the prevention
of accidents. All of Grantee's work under this Agreement shall be done in compliance with all
rules, regulations and generally applicable ordinances of the City.
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11.4 Maintenance
(A) Grantee's System shall be constructed and maintained in such a manner as not to
interfere with sewers, water pipes or any other property of the City, or with any other pipes,
wires, conduits, pedestals, structures or other facilities that may have been laid in Rights-of--Way
by, or under, the City's authority.
(B) Grantee shall provide and use any equipment necessary to control and carry
Grantee's signals so as to prevent damage to the City's property or property belonging to any
Person. Grantee, at its own expense, shall repair, renew, change and improve its facilities and
equipment to keep them in good repair and a safe and presentable condition.
(C) The Grantee's transmission and distribution System, wires and appurtenances
shall be located, erected and maintained so as not to endanger or interfere with the lives of
Persons, or to unnecessarily hinder or obstruct the free use ofRights-of--Way or other public
property.
(D) Grantee shall give reasonable notice to private property owners of construction
work in adjacent Rights-of--Way.
11.5 Reservation of Rights-of--Way
Nothing in this Agreement shall prevent the City or public utilities from constructing any public
work or improvement. All such work shall be done insofar as practicable so as not to obstruct,
injure or prevent the use and operation of Grantee's Cable System.
(A) Movement of System For and By the City. The City shall have the right to require
Grantee to relocate, remove, replace, modify or disconnect Grantee's facilities and equipment
located in the Rights-of--Way or on other property of the City in the event of an emergency or
when necessary to protect or further the health, safety or welfare of the general public, and such
work shall be performed at Grantee's expense consistent with applicable law. In conjunction
with the foregoing, Grantee shall be treated in a similar manner with respect to other providers
with overhead utilities. Except during an emergency, the City shall provide reasonable notice to
Grantee, not to be less than ten (] 0) business days, and allow Grantee the opportunity to perform
such work.
If the Grantee fails to complete this work within the time prescribed and to the
City s reasonable satisfaction, the City may cause such work to be done and bill the cost of the
work to the Grantee. Grantee shall remit payment to the City within thirty (30) days of receipt of
an itemized list of those costs.
If the City requires Grantee to relocate its facilities located within the Rights-of-
Way, the City shall make a reasonable effort to provide Grantee with an alternate location in the
Rights-of--Way.
(B) Movement for Other Permittees. At the request of any Person holding a valid
permit and upon reasonable advance notice, Grantee shall temporarily raise, lower or remove its
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wires as necessary to allow the moving of a building, vehicle, equipment or other item. The cost
of such temporary change must be paid by the permit holder, and Grantee may require the
estimated payment in advance.
11.6 Rights-of--Way Vacation
If any Rights-of--Way or portion thereof used by Grantee is vacated by the City during the term of
this Agreement, unless the City specifically reserves to Grantee the right to continue the use of
vacated Rights-of--Way, Grantee shall, without delay or expense to the City, remove its facilities
from such Rights-of--Way and restore, repair or reconstruct the Rights-of--Way where such
removal has occurred. In the event of failure, neglect or refusal of Grantee to restore, repair or
reconstruct such Rights-of--Way after thirty (30) days written notice from the City, the City may
do such work or cause it to be done, and the reasonable cost thereof shall be paid by Grantee
within thirty (30) days of receipt of an invoice and documentation.
11.7 Undergrounding of Cable
(A) Where electric and telephone utility wiring or other underground wiring is
installed at the time of System construction or when such overhead wiring is subsequently placed
underground, all System lines, wiring and equipment shall also be placed underground by
Grantee concurrently or within a reasonable time thereafter at no expense to the City, subject to
applicable law including, but not limited to CRS 29-8-101 et seg. In areas where either electric
or telephone utility wiring is aerial, the Grantee may install aerial cable, except when a property
owner or resident requests underground installation and agrees to bear the additional cost in
excess of aerial installation. If funds exist, are set aside for such purpose, or provided by a third
party, Grantee shall be entitled to seek reimbursement for its share of funds to offset the cost of
placing its facilities underground. Nothing contained in this subsection shall require Grantee to
construct, operate and maintain underground any ground-mounted appurtenances including, but
not limited to, pedestals.
(B) The Grantee shall utilize existing conduit wherever possible.
(C) The City shall not be required to obtain easements for the Grantee.
(D) The Grantee shall participate with other providers in joint trench projects to
relocate its overhead facilities underground and remove its overhead facilities in areas where
utilities are being converted to underground facilities.
11.8 Construction and Use of Poles
Grantee shall use existing poles when the installation of facilities above-gound is permitted. In
the event Grantee cannot obtain the necessary poles pursuant to a pole attachment agreement, and
only in such event, then, subject to the Citys prior written consent, it shall be lawful for Grantee
to make all needed excavations in the streets for the purpose of placing, erecting, maintaining,
repairing and removing poles needed for the maintenance or extension of Grantee's System. The
City shall have the right to require Grantee to change the location of any pole within Rights-of-
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Way when, in the opinion of the City, the public health, safety or welfare requires such change,
and the expense thereof shall be paid by Grantee.
11.9 Tower Specifications
Antenna supporting structures ("towers") shall be designed for proper loading as those industry
specifications maybe amended from time to time. Antenna supporting structures shall be
painted, lighted, erected and maintained in accordance with all applicable rules and regulations of
the Federal Aviation Administration and all other applicable federal, State or local codes or
regulations.
11.10 Tree Trimming
Upon obtaining a written permit from the City, Grantee may prune or cause to be pruned any tree
or other natural growth in the Rights-of--Way that interferes with the System.
11.11 Standards
(A) All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. The Grantee must comply with all federal, State and local safety
requirements, rules, regulations, laws and practices, and deploy all necessary devices as required
by applicable law during construction, operation and repair of its System. Byway of illustration
and not limitation, Grantee must comply with the National Electric Code, National Electrical
Safety Code and Occupational Safety and Health Administration (OSHA) Standards.
(B) Grantee shall ensure that all cable drops are properly bonded and grounded at the
home, consistent with applicable code requirements. All non-conforming ornon-performing
cable drops shall be replaced by Grantee as necessary.
(C) All installations of equipment, lines and facilities shall be durable and installed in
accordance with good engineering practices and of sufficient height to comply with all federal,
State and local regulations, ordinances and laws.
(D) Any opening or obstruction in the Rights-of--Way or other public places made by
the Grantee in the course of its operations shall be guarded and protected at all times by the
placement of adequate bamers, fences or boarding, the bounds of which, during periods of dusk
and darkness, shall be clearly marked and visible at night.
(E) Grantee and the City agree that nothing in this Agreement shall give Grantee the
right to construct new poles without prior City approval. Furthermore, nothing contained in this
Agreement gives Grantee a right ofpole attachment to City facilities or facilities owned by third
parties.
11.12 Stop Work
On notice from the City that any work is being conducted contrary to the provisions of this
Agreement, or in an unsafe or dangerous manner as determined by the City, or in violation of the
25
terms of any applicable permit, laws, regulations, ordinances or standards, the work may
immediately be stopped by the City. The stop work order shall:
(A) Be in writing;
(B) Be sent to Grantee by mail at the address given herein;
(C) Indicate the nature of the alleged violation or unsafe condition; and
(D) Establish conditions under which work may be resumed.
l 1.13 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance with local
ordinances, regulations and requirements. Work by contractors and subcontractors shall be
subject to the same restrictions, limitations and conditions as if the work were performed by
Grantee. Grantee shall be responsible for all work performed by its contractors and
subcontractors and others performing work on its behalf, and shall ensure that all such work is
performed in compliance with this Agreement and other applicable law, and shall be jointly and
severally liable for all damages caused by them. It is Grantee's responsibility to ensure that
contractors, subcontractors or other Persons performing work on Grantee's behalf are familiar
with the requirements of this Agreement and other applicable laws governing the work
performed by them.
11.14 Joint Trenching/Boring
The Grantee and the City recognize that situations may occur in the future where the City
may desire to place its own cable, telecommunication wiring, or conduit for fiber optic cable in
trenches or bores opened by the Grantee. The Grantee agrees to cooperate with the City in any
construction by the Grantee that involves trenching or boring, provided that the City has first
notified the Grantee that it is interested in sharing the trenches or bores in the area where the
Grantee's construction is occumng. The Grantee shall allow the City to lay its cable, conduit and
fiber optic cable in the Grantee's trenches and bores, provided the City pays Grantee's
incremental cost of the trenching and boring. The City shall be responsible for maintaining its
respective cable, telecommunication wiring, conduit and fiber optic cable buried in the Grantee's
trenches and bores under this paragraph. City shall have the ability to sell or lease its cable,
conduit and fiber optic cable installed pursuant to this paragraph to any third party; provided,
however, that in the event the third party competes with Grantee, the City or the third party shall
reimburse Grantee for its proportional share of the original entire cost of the trenching and
boring.
As a condition of issuing a permit for open trenching to any utility, the City agrees to
require the utility to give the Grantee at least ] 0 days advance written notice of the availability of
the open trench or bore, and provide the Grantee with reasonable access to the open trench or
bore. Likewise, Grantee shall allow utility companies in the City reasonable access to its open
trench and bore, provided the utility shares in the cost of the trenching and boring. The utility
shall be responsible for maintaining its respective cable conduit and facilities buried in the
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Grantee's trenches and bores.
11.15 GIS Mapping and As-Built Maps
Upon thirty (30) days written request of the City, Grantee shall within a reasonable timeframe
comply with any generally applicable ordinances, rules and regulations of the City regarding
geographic information systems mapping for users of the Rights-of--Way.
11.16 Notice to Property Owners
Except for emergency situations, Grantee shall provide at least two (2) days prior written notice
to property owners before commencing work on public or private property. Grantee may provide
such notice by door hangers or other reasonable means.
SECTION 12. SYSTEM DESIGN
(A) The Cable System has been previously upgraded and is capable of 750 MHz and is
capable of delivering high quality signals that meet FCC technical quality standards regardless of
a particular manner in which the signal is transmitted. Grantee agrees to maintain the Cable
System in a manner consistent with, or in excess of, these specifications throughout the
Agreement.
(B) The Cable System shall be two-way capable, provided that the Grantee reserves
the right to use the bandwidth in the future for other uses based on market factors.
(C) Equipment must be installed so that all closed captioned programming received
and transmitted by the Cable System shall include the closed caption signal so long as the closed
caption signal is provided consistent with FCC standards.
(D) Grantee acknowledges that the minimum Cable System design and performance
requirements set forth in this Agreement are enforceable, to the extent allowed bylaw.
SECTION 13. TECHNICAL STANDARDS
13.1 Technical Performance
The technical performance of the Cable System shall meet all applicable technical standards
authorized or required bylaw including, without limitation, FCC technical standards as they may
be amended from time to time, regardless of the transmission technology utilized. The City shall
have the full authority permitted by applicable law to enforce compliance with these technical
standards.
13.2 Inspection of Facilities
The City may inspect any of Grantee's facilities and equipment located in the Rights-of--Way or
on other public property at any reasonable time during business hours upon at least twenty-four
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(24) hours notice, or, in case of an emergency, upon demand without prior notice. Where
inspection is warranted, the City shall have the right to charge generally applicable inspection
fees therefore. If an unsafe condition is found to exist, the City, in addition to taking any other
action permitted under applicable law, may order Grantee to make the necessary repairs and
alterations specified therein and correct the unsafe condition within the time specified by the
City. The City has the right to correct, inspect, administer and repair the unsafe condition if
Grantee fails to do so within the time specified and to charge Grantee the cost therefore. In such
event, the City shall not be liable for any damage to any portion of Grantee's Cable System.
13.3 Cable System Performance Testing
(A) Grantee shall, at its expense, perform all tests on its Cable System required bylaw
and maintain written records of its test results. Upon advance request, all required technical
performance tests may be witnessed by representatives of the City. Copies of such test results
will be provided to the City upon written request.
(B) Grantee shall promptly take such steps and measures as are necessary to correct
any performance deficiencies fully and to prevent their recurrence. Grantee's failure to correct
deficiencies identified through this testing process shall be a material violation of this
Agreement. Sites shall be re-tested following correction until satisfactory results are obtained.
13.4 Additional Tests
(A) Where there exists a demonstrable ongoing pattern of poor technical performance,
then upon thirty (30) days prior written notice, the City may require Grantee to conduct proof-of-
performance tests on test points located within the Franchise Area and provide results of such
tests within thirty (30) days after completion thereof.
(B) Grantee shall cooperate with the City in performing the testing described in
subsection (A) and shall prepare the results and a report. Such report shall include the following
information:
(1) the nature of the complaint or problem that precipitated the special tests;
(2) the Cable System component tested;
(3) the equipment used and procedures employed in testing;
(4) the method, if any, in which such complaint or problem was resolved; and
(5) any other information pertinent to said tests and analysis that maybe
reasonably required.
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SECTION 14. SERVICE EXTENSION
14.1 Service Availability
(A) Grantee shall provide a standard installation of Cable Service within seven (7)
days of a request by any Person within its Franchise Area. For purposes of this Section, a request
shall be deemed made on the date of signing a service agreement, receipt of funds by Grantee (if
applicable), receipt of a written request by Grantee or receipt by Grantee of a verified verbal
request. Grantee shall provide Cable Service:
(1) with no line extension charge except as specifically authorized elsewhere
in this Agreement;
(2) at anon-discriminatory installation charge for a Standard Installation,
consisting of a one hundred twenty-five (125) foot aerial drop or sixty (60) feet for an
underground drop connecting to the exterior demarcation point for Subscribers, with additional
charges for non-standard installations computed according to anon-discriminatory methodology;
and
(3) at non-discriminatory monthly rates for al] Residential Subscribers.
(B) No Customer shall be refused service arbitrarily. However, for unusual
circumstances, such as a Customers request to locate the cable drop underground with a distance
of more than sixty (60) feet or the existence of more than one hundred twenty-five (125) aerial
feet of distance from the distribution cable to connection of service to Customers, or a density of
less than twenty-five (25) residences per 5280 cable-bearing strand feet of trunk or distribution
cable, service may be made available on the basis of a capita] contribution in aid of construction,
including cost of material, labor and easements. Customers who request service hereunder will
bear the remainder of the construction and other costs on a pro rata basis. The Grantee may
require that the payment of the capital contribution in aid of construction borne by such potential
Customers be paid in advance.
(C) Grantee shall, subject to the line extension distance criteria set forth above and
upon request (but subject to Grantee recouping a reasonable amount of its construction costs)
make Cable Service available to all commercial establishments located within the City at the
expense of such commercial establishments.
14.2 Service to Alultiple Dwelling Units
The Grantee shall provide Cable Service to multiple dwelling units in accordance with an
agreement with the property owner, this Agreement and all applicable laws. Additionally,
Grantee shall use best efforts to provide Cable Service to Customers in the Franchise Area that
are billed on a bulk billing basis.
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SECTION 15. STANDBY POWER AND EMERGENCY ALERT SYSTEM
15.1 Standby Power
Grantee shall provide standby power generating capacity at the System Headend capable of
providing at ]east twenty-four (24) hours of emergency operation. Grantee shall maintain
standby power supplies throughout the System rated for at least four (4) hours duration.
15.2 Emergency Alert Capability
(A) Grantee shall provide an Emergency Alert System (`'EAS") in accordance with
and as required by applicable laws and regulations.
(B) Grantee shall ensure that the EAS is functioning properly at all times. It will test
the EAS periodically, in accordance with federal and State regulations. Upon request, Grantee
will advise the City of the testing schedule so that the City maybe present for the tests.
SECTION 16. BREACHES OF AGREEMENT
16.1 Procedure for Remedying Agreement Violations
(A) If the City believes that Grantee has failed to perform any material obligation
under this Agreement or has failed to perform in a timely manner, the City shall first informally
discuss the matter with Grantee. If this discussion does not lead to resolution of the problem, the
City shall notify Grantee in writing, stating with reasonable specificity the nature of the alleged
default. Grantee shall have thirty (30) days from the receipt of such notice to:
(]) respond to the City, contesting the Citys assertion that a default has
occurred;
(2) cure the default; or
(3) notify the City that Grantee cannot cure the default within thirty (30) days
because of the nature of the default. In the event the default cannot be cured within thirty (30)
days, Grantee shall promptly take all reasonable steps to cure the default and notify the City in
writing and in detail as to the exact steps that will betaken and the projected completion date.
Upon ten (10) business days prior written notice, either the City or Grantee may call a meeting to
discuss the alleged default. In such case, if matters are not resolved at such meeting, the City
may set a hearing in accordance with subsection (B) below to determine whether additional time
beyond the thirty (30) days specified above is indeed needed, and whether Grantee's proposed
completion schedule and steps are reasonable.
(B) ]f Grantee does not cure the alleged default within the cure period stated above, or
by the projected completion date under subsection (A)(3), or denies the default, or the City orders
a hearing in accordance with subsection (A)(3), the City shall set a public hearing to investigate
said issues or the existence of the alleged default. The City shall notify Grantee of the hearing in
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writing, and such hearing shall take place no less than thirty (30) days after Grantee's receipt of
notice of the hearing, which notice shall specify the time, place and purpose of such hearing. At
the hearing, Grantee shall be provided an opportunity to be heard, to present and question
witnesses and to present evidence in its defense. The determination as to whether a default or a
material breach of this Agreement has occurred shall be within the City's sole discretion, but any
such determination shall be subject to appeal to a court of competent jurisdiction.
(C) If, after the public hearing, the City determines that a default still exists, the City
shall order Grantee to correct or remedy the default or breach within ten (10) days of City
notification or within such other timeframe as the City shall determine. The City's decision shall
be provided to the Grantee in writing, setting forth the reasons supporting the City's actions. In
the event Grantee does not cure within such time to the City's reasonable satisfaction, the City
may:
U)
(2)
(3)
or
(4)
or applicable law.
take steps to collect on the Performance Bond;
assess and collect monetary damages in accordance with this Agreement;
commence revocation procedures consistent with subsection 16.4 herein;
pursue any other legal or equitable remedy available under this Agreement
16.2 Alternative Remedies and Immunity
(A) Neither the existence of other remedies identified in this Agreement nor the
exercise thereof shall be deemed to bar or otherwise limit the right of the City to recover
monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement
of Grantee's obligations by means of specific performance, injunctive relief or mandate.
(B) The City specifically does not, by any provision of this Agreement, waive any
right, immunity, limitation or protection otherwise available to the City, its elected officials,
officers, Councils, commissions, agents or employees under federal, State, or local law including,
byway of example, Section 635A of the Cable Act.
16.3 Assessment of Liquidated Damages
(A) Because it maybe difficult to calculate the harm to the City in the event of a breach
of this Agreement by Grantee, the parties agree to liquidated damages as a reasonable estimation of
the actual damages in certain instances. Nothing in this subsection is intended to preclude the City
from exercising any other right or remedy in accordance with applicable law.
(B) Prior to assessing any liquidated damages, the City shall give Grantee written
notice and a thirty (30) day right to cure.
(C) The first day for which liquidated damages maybe assessed, if there has been no
cure after the end of the applicable cure period, shall be the day of the violation.
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(D) Liquidated damages shall be as follows:
(1) One hundred dollars ($100.00) per day for material departure from the FCC
technical performance standards;
(2) One hundred dollars ($100.00) per day for failure to provide the Access
Channels or any equipment related thereto or funding which is required;
(3) One hundred dollars ($100.00) per day for failure to comply with any other
material requirement of this Agreement; ,
Liquidated Damages may not be assessed for more than one hundred twenty (l20) days.
16.4 Material Violations
(A) In addition to pursuing any other legal or equitable remedy available under this
Agreement or applicable law, the City may revoke this Agreement and rescind all rights and
privileges associated with this Agreement in any of the following circumstances:
(1) If Grantee fails to perform any material obligation under this Agreement;
(2) If Grantee willfully fails for more than three (3) days to provide continuous
and uninterrupted Cable Service except for Force Majeure;
(3) If Grantee attempts to evade any material provision of this Agreement or to
practice any fraud or deceit upon the City or Subscribers; or
(4) If Grantee fails to provide the insurance, performance bond or other security
required by this Agreement.
(B) Prior to pursuing legal or equitable remedies and forfeiture or termination of the
Agreement, the City shall give written notice to the Grantee. The notice shall set forth the exact
nature of the noncompliance. Grantee shall have thirty (30) days from such notice to object in
writing and to state its reasons for such objection and provide any explanation. ]n the event the City
has not received a timely and satisfactory response from Grantee, it may then seek legal and
equitable remedies and a termination of the Agreement in accordance with this subsection.
(C) The City shall conduct a public hearing.
(1) At least thirty (30) days prior to the public hearing, the City Clerk shall issue
a public hearing notice that shall establish the issue(s) to be addressed in the public hearing; provide
the time, date and location of the hearing; provide that the Council shall hear any persons interested
therein; and provide that the Grantee shall be afforded fair opportunity for full participation,
including the right to introduce evidence, to require the production of evidence, to be represented by
counsel and to question witnesses.
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(2) A verbatim transcript may be made by a court reporter of such proceeding
and the cost shall be paid by Grantee and City on a 50/50 basis.
(3) Within thirty (30) days after the close of the hearing, the City Council shall
issue a written decision.
(D) Grantee shall be bound by the City Council's decision unless an appeal to a court of
competent jurisdiction is filed within thirty (30) days of the date of the City Council's decision.
Grantee and the City shall be entitled to such relief as the court may deem appropriate.
16.5 Purchase or Removal
(A) If this Agreement is lawfully terminated or revoked, the City may, subject to
applicable law:
(1) Require Grantee to maintain and operate its Cable System on a month-to-
month basis until a new cable operator is selected; or
(2) Purchase Grantee's Cable System in accordance with federal law.
(B) The City may order the removal of the above-ground Cable System facilities and
such underground facilities from the Franchise Area at Grantee's sole expense within a reasonable
period of time as determined by the City. In removing its plant, structures and equipment, Grantee
shall refill, at its own expense, any excavation that is made by it and shall leave all Rights-of--Way,
public places and private property in as good a condition as that prevailing prior to Grantee's
removal of its equipment and without affecting electrical or telephone wires or attachments. The
indemnification, insurance and bond(s) shall remain in full force and effect during the period of
removal, and Grantee shall not be entitled to, and agrees not to request, compensation of any sort
therefor.
(C) If Grantee fails to complete any removal required by subsection 16.5 (B) to the
City s satisfaction, after written notice to Grantee, the City may cause the work to be done and
Grantee shall reimburse the City for the costs and expenses incurred within thirty (30) days after
receipt of an itemized list of the costs and expenses, or the City may recover the costs and expenses
through the Grantee's security instruments if Grantee has not paid such amount within the
foregoing thirty (30) day time period. Any costs and expenses incurred by the City regarding such
removal shall include reasonable attorneys' fees and costs and expenses for work conducted by the
City staff or its agents.
SECTION l7. ABANDONMENT
If the Grantee abandons its Cable System during the Agreement, the City, at its option, may operate
the Cable System; designate another entity to operate the Cable System temporarily until the
Grantee restores service under conditions acceptable to the City, or until the Agreement is revoked
and a new franchisee is selected by the City; or obtain an injunction requiring the Grantee to
continue operations. If the City is required to operate or designate another entity to operate the
33
Cable System, the Grantee shall reimburse the City or its designee for all reasonable costs, expenses
and damages incurred.
SECTION 18. RENEWAL AND TRANSFER
18.1 Renewal
The City and Grantee agree that any proceedings undertaken by the City that relate to the renewal of
the Agreement shall be governed by and comply with the provisions of Section 626 of the Cable
Act, unless the procedures or substantive protections set forth therein shall be deemed to be
preempted and superseded by the provisions of any subsequent provision of federal or State law.
]8.2 Transfer
(A) This Agreement and the Cable System shall not be assigned, transferred, sold, or
disposed of, in whole or in part, by voluntary sale, sale and leaseback, merger, consolidation,
exchange of stock, by provision of a management ageement, or otherwise, or by forced or
involuntary sale, without the prior written consent of the City, which shall not be unreasonably
withheld, delayed or conditioned.
(B) Prior written approval of the City shall also be required where a controlling interest
in Grantee is to be acquired during this Agreement in any transaction, or series of transactions, by a
Person or group of Persons, none of whom owned or controlled Grantee, singularly or collectively
on the effective date of the Agreement. The term "controlling interest" as used herein is not limitec
to majority stock ownership but includes actual working control in whatever manner exercised.
(C) The approval of a sale, transfer or change in control in one instance shall not render
unnecessary approval of any subsequent sale, transfer or change in control.
(D) Approval of a sale, transfer or change in control by the City does not constitute a
waiver or release by the City of its rights under this Agreement or applicable law.
(E) A transfer of this Agreement shall be conducted in accordance with federal law and
the requirements set forth in this Agreement. The City may request any information it deems
reasonable to evaluate the financial, technical and legal qualifications of the proposed transferee or
new controlling party. Any unresolved Agreement compliance issues shall be resolved prior to
completing any transfer, assignment or change in control unless the transferee elects to assume
liabilities for such unresolved Ageement compliance issues. Grantee, the proposed transferee and
new controlling party shall provide the information requested by the City in a timely manner.
(F) The City s consent to a sale, transfer or change in control shall not be unreasonably
withheld, delayed or conditioned.
(G) Notwithstanding anything to the contrary in this subsection, the prior approval of the
City shall not be required for any sale, assignment or transfer of the Agreement or Cable System to
an infra-company Affiliate; provided that the proposed assignee or transferee must show financial
responsibility as may be determined necessary by the City and must agree in writing to comply with
34
all of the provisions of the Ageement. Further, Grantee may pledge the assets of the Cable System
for the purpose of financing without the consent of the City; provided that such pledge of assets
shall not impair or mitigate Grantee's responsibilities and obligations under this Ageement.
SECTION 19. MISCELLANEOUS PROVISIONS
19.1 Equal Employment and Non-discrimination
Throughout the term of this Ageement, Grantee shall fully comply with all equal employment and
non-discrimination provisions and requirements of federal, State and local laws.
19.2 Notices
Throughout the term of this Ageement, each party shall maintain and file with the other an
address for the delivery of notices and communications by mail. All notices and communications
shall be sent to such respective address(es), and such shall be effective upon the date of mailing.
At the effective date of this Ageement:
The Grantee's address shall be:
Comcast of Colorado/Florida, Inc.
8000 East Miff Avenue
Denver, CO 80231
Attn: Government Affairs
With a Copy to:
Comcast
281 Metca]f Road, Suite 110
Avon, CO 81620
Attn: General Manager
The Citys address shall be:
The City of Aspen
] 30 South Galena
Aspen, CO 81611
Attention: City Attorney
19.3 Captions and Headings
The captions and headings of the sections and subsections set forth herein are intended solely to
facilitate the reading hereof. Such captions and headings shall not affect the meaning or
interpretation of this Agreement.
35
19.4 Costs and Expenses to be Borne by Grantee
Costs and expenses to be borne by Grantee shall include all of the City's publication and hearing
costs related to this Agreement.
19.5 Attorneys' Fees
If any action or suit arises in connection with this Agreement, excluding subsequent franchise
renewal proceedings, the prevailing party shall be entitled to recover all of its reasonable attorneys'
Fees, consultants' fees, costs and expenses in connection therewith, in addition to such other relief
as the court may deem proper.
19.6 Binding Effect
This Agreement shall be binding upon the parties hereto, their permitted successors and assigns.
19.7 Authority to Amend
This Agreement maybe amended at any time by written agreement between the parties.
19.8 Venue
Venue for any judicial dispute between the City and Grantee arising under or out of this Agreement
shall be in the United States District Court for the District of Colorado or Pitkin County District
Court in Aspen, Colorado.
19.9 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the
parties, and neither party is authorized to, nor shall either party act toward third persons or the
public in any manner which would indicate any such relationship with the other.
19.10 Nou-Waiver
The failure of the City at any time to require performance by Grantee of any provision hereof shall
in no way affect the right of the City hereafter to enforce the same. The waiver by the City of any
breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of
such provision, or as a waiver of the provision itself or any other provision.
19.11 Governing Law
This Agreement shall be governed, construed and enforced in accordance with the laws of the State
of Colorado, the Cable Act, any applicable rules, regulations and orders of the FCC, and any other
applicable local, State and federal laws (as such now exist; are later amended or subsequently
adopted).
36
19.12 Actions of the City or Grantee
In any action by the City or Grantee mandated or permitted under the provisions hereof, it shall act
in a reasonable, expeditious and timely mariner. Furthermore, in any instance where approval or
consent is required under the terms hereof, such approval or consent shall not be unreasonably
withheld.
19.13 Force Majeure
Notwithstanding any other provision of this Agreement, the Grantee shall not be liable for delay in
the performance of, or failure to perform, in whole or in part, its obligations pursuant to this
Agreement due to an event or events reasonably beyond the ability of the Grantee to anticipate and
control. "Force majeure'' includes, but is not limited to, acts of God, incidences of terrorism, war or
riots, labor strikes or civil disturbances and work delays caused by waiting for utility providers to
provide access to utility poles to which Grantees facilities are attached.
19.14 Severability
If any Section, subsection, paragraph or provision of this Agreement is determined to be illegal,
invalid or unconstitutional by any court or agency of competent jurisdiction, such determination
shall have no effect on the validity of any other Section, subsection, paragraph or provision of this
Agreement, all of which will remain in full force and effect for the term of the Agreement.
19.15 Entire Agreement
This Agreement represents the entire understanding and agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior oral and written negotiations between
the parties.
PASSED AND APPROVED THIS DAY OF , 2009.
THE CITY OF ASPEN, COLORADO
By -
Title
ATTEST:
City Clerk
37
Accepted and approved this ~ g day of ~Jc.~'oFut, 2009.
COMCAST OF COLORAnDO/FLORIDA, INC.
gy ~ /~"0 t
Title Ernest A. Piphini, SVP/ troller
ATTEST: /
Secret ry Assistant Secretary
38
MEMORANDUM
]~[c.
TO: Mayor Ireland and Aspen City Council N •.
THRU: Chris Bendon, Community Development Director{ 7pfM
FROM: Sara Adams, Senior PlannerL~~ VVV""""~"___~~-~~,
RE: Mountain Plaza Building (AK/A Bidwell Building - 434 E. Cooper Ave.) -
Subdivision Review, First Reading Ordinance No.~, Series of 2009. Second
Reading is scheduled for January 11, 2010.
MEETING
DATE: December 7, 2009
APPLICANT /OWNER: STAFF RECOMMENDATION:
Bert Bidwell Investment Corporation, Staff recommends that the City Council approve
c/o Mark Bidwell the subdivision review.
REPRESENTATIVE: SUMMARY:
Mitch Haas, Haas Land Planning, LLC. "the Applicant requests of the City Council
approval of the Subdivision Review.
LOCATION:
Lots Q, R, and S, Block 89, City and
Townsite of Aspen, CO, commonly
known as 434 E. Cooper Ave.
CURRENT ZONING Bc USE
Located in the Commercial Core (CC)
zone district containing a two story
(above grade) commercial building with
12,081 sq. ft. of office/retail Net
Leasable Area.
PROPOSED LAND USE:
The Applicant is requesting approval to
develop a three story (above grade)
mixed use building that contains
commercial, free market residential and
affordable housing components.
~~
. ~ . ;::. .
.~ f
;.-
-,a'' I
~ r xr
_a . j/r,
Photo of the subject property
BACKGROUND
The property is part of the Commercial Core Historic District and sits on a prominent corner
location downtown. It is in close proximity to important landmarks: Aspen Block Building is
directly across the alleyway to the north; the Independence Square building is located diagonally
434 East Cooper Street
Subdivision Review, First Reading
11 / 16/2009
Page 1 of 7
across the street; and the Red Onion is located to the west. Directly across Cooper Street is the
old Guido's building, which exhibits a chalet style form. 434 East Cooper borders the Cooper
Pedestrian mall and the Galena Street thoroughfare and the east facade faces the popular open
space in front of Paradise Bakery.
In 2007, HPC granted Major Development Conceptual and Viewplane Exemption approvals,
demolition approval and Commercial Design Standard Review approval for the proposed
redevelopment of the subject parcel. After the HPC reviews, the P & Z reviewed the project and
granted Growth Management approval for new commercial development, new residential
development and affordable housing. P & 7, recommended subdivision approval to City
Council. During the City Council review concerns were raised regarding height, scale, mass and
a lack of public amenity space. On May 27, 2008, City Council denied the subdivision request.
In an effort to respond to Council's and the public's concerns, the Applicant made significant
changes to the design and requested that Council reconsider the application. City Council
approved reconsideration of the application and remanded review of the new design back to HPC
for Major Development Conceptual, Viewplane Exemption and Commercial Design Standard
Review, as the exterior of the building dramatically changed. The previous Growth Management
approvals and P & Z's subdivision recommendation are still valid. The application is still
reviewed pursuant to the March 2006 Land Use Code. A redesign of the project was submitted
to the Community Development Department in the summer of 2009.
Mass, Scale, Heieht: The public and Council were concerned about the impact of the height on
surrounding buildings and the downtown experience. In response, the applicant reduced the
height of the building and reduced the size and configuration of the free market residential units.
The building is still three stories; however the height has been dropped to 36'7" at the highest
point. The third floor was significantly reduced and pulled back from the sides of the building to
minimize its visual impact. The corner of the building was reduced to a one story element that
steps up to a two story element, and a third story is recessed behind the two story parapet on both
the Galena and Cooper Street elevations to better relate to the Paradise Bakery plaza across the
street. The building is located on arguably the most active corner in town and as such it needs to
successfully anchor the corner.
Commercial storefronts are proposed for the ground and second levels. The applicant
reconfigured interior spaces and added a below grade commercial level to satisfy the concerns
about too much mass and scale while incorporating and maintaining a variety of commercial
spaces. Staff finds that the massing, scale and height are successful in relationship to the context
of the block and the historic district. The applicant clearly studied the historic district and drew
on development patterns for traditional commercial buildings to redesign the project.
Architecture• Council expressed concern over the loss of "western vernacular" architecture in
the new building and over the magnitude of the proposed mass and scale. The redesign
incorporates more of a western vernacular style and proposes traditional 30' and 60' modulations
along the Cooper Street elevation and smaller modulations along the Galena Street elevation to
break up the perceived mass of the new building and to better relate to the historic context of
434 East Cooper Street
Subdivision Review, First Reading
11/16/2009
Page 2 of 7
downtown. Staff finds that the modules along Cooper Street and Galena Street are successful in
breaking up the building and expressing traditional lot widths.
Public Amenity: The applicant originally designed the building to meet the property lines without
any setback or public amenity space. Council and the public were concerned about the elimination
of the open area in front of the existing Bidwell Building and the impact on the pedestrian malls
and circulation. The applicant was providing cash-in-lieu to satisfy the required ]0% pedestrian
amenity space. The redesign provides 12% pedestrian amenity space in front of the building at the
corner of Galena and Cooper. Staff finds that the proposed space will enhance the pedestrian malls
and appropriately replaces the existing uninviting sunken courtyard space.
HPC granted Major Development Conceptual, Viewplane Exemption and Commercial Design
Standard Review on August 12, 2009. Supportive referral comments regarding Commercial
Design Review were rendered by the P & Z on July 21, 2009 and communicated to the HPC during
their review of the project. The Planning and Zoning Commission granted Growth Management
Review for the Expansion of Commercial Development, encompassing an additional 203 square
feet of net leasable in the basement, on September 15, 2009.
The Applicant is requesting subdivision approva] from City Council. Second reading is
scheduled on January 11, 2010.
LAND USE REQUESTS AND REVIEW PROCEDURES:
The Applicant is requesting the following land use approvals from the City Council to redevelop
the site:
• Subdivision for the construction of multiple dwelling units pursuant to Land Use Code
Section 26.480 (City Council is the final review authority after considering a
recommendation from the Planning and Zoning Commission).
PROJECT SUMMARY:
The Applicant, Bert Bidwell Investment Corporation, has received HPC approval to demolish the
existing office/retail building located at the corner of Cooper Avenue and Galena Street that is
located on a 9,000 square foot lot and redevelop the site with a new mixed-use building
containing commercial, affordable housing, and free market residential uses. As proposed, the
new three story above grade building (and two below grade levels) contains:
• Two stories below grade is a parking garage accessed by an auto lift. Vehicular access to
the property and the garage will be from the alley right-of--way that is adjacent to the
north property line of the subject property. The garage will provide ten parking spaces.
• Abasement level with a large, versatile commercial/office space (5,160 sq. ft.) and
storage accessed from a street level corridor.
434 East Cooper Street
Subdivision Review, First Reading
11 / 16/2009
Page 3 of 7
The at-grade level contains four (4) commercial spaces, pedestrian amenity space along
Cooper Street, entry to the basement level and upper floors, a loading dock and auto lift
off of the alley.
• The second level contains three (3) commercial spaces, one (1) free market residential
studio, and two (2) one bedroom employee housing units.
• The third level contains two (2) free-market residential units and deck space.
The roof does not contain any deck space: it is not accessible.
Table 1 Comparison of 2007 Proposed Dimensions Current 2009 Proposed Dimensions. and
Required Dimensional Requirements (March 2006).
Underlying Commercial
Dimensional 2007 Proposed Current 2009 Core Zone District
Requirement Dimensions Proposed Dimensions e06s (March
Require2
0
Minimum Lot 9,022 sq. ft. 9,022 sq. ft. No requirement
Size
Minimum Lot 90 ft. 90 ft. No requirement
Width
Minimum Lot n/a n/a No requirement
Area/Dwelling
Minimum
Front Yard
0 fr.
0 ft.
No requirement
Setback
Minimum
Alternative 0 ft 0 ft. No requirement
Front Yard
Setback
Minimum Side 0 ft 0 ft. No requirement
Yard Setback
Minimum Rear 0 ft 0 ft. No requirement
Yazd Setback
42 Feet;
46 Feet for areas setback
Maximum
41 ft 36' 7" at l 5 or more feet from lot
Hei ht
g . highest point
lines adjacent to a street
right-of-way
434 East Cooper Street
Subdivision Review, First Reading
11 /16/2009
Page 4 of 7
Underlying Commercial
Dimensional 2007 Proposed Current 2009 Core Zone District
Requirement Dimensions Proposed Dimensions Requirements (March
2006
Commercial: Commercial Commercial:
1.47:1 or 1.27:1 or 1.5:1 or
13,275sq.ft 11,433 s . ft. 13
500
Total: Affordable Total: Affordable ,
Floor Area 2.61:1 Housing: 2.0:1 Housing: Cumulative Affordable
Ratio (FAR)
or
0.31:1 or
or
0.17:1 or Maximum:
3
1 Housing: No
23,503
2,835 sq.fr.
18,078
1,567 s . ft. :
or
limitation
sq. fr.
Free Market
sq. ft.
Free Market 27,000 sq.
fr
Free-Market
Residential Residential: Residential:
0.82:1 or 0.56:1 or 1:1 or
7,392 sq. fr. 5,078 s . ft. 9,000 s . ft.
Maximum
Residential 2,000 sq. fr. 2,000 sq. ft. 2,000 sq. fr.
Unit Size
Residential Multi-Family:
No requirement
Minimum Off-
Street Parking 11 spaces 10 s aces*
p Commercial: One space
per 1,000 net leasable sq.
ft. of commercial space or
12 s aces.
Pedestrian 0 sq. fr.
Amenity Space (Proposed cash in lieu 12% or 1,080 sq. ft. 10% or about 900 sq. ft.
for miti ation)
*
The Land Use Code permits developments to maintain an existing deficit of parking. The
redevelopment can maintain a deficit of 9, therefore the requirement is to provide 3 spaces
(12 - 9).
Table 2: Proposed Affordable Housing
* The proposal is required to house 3.0 FTEs.
434 East Cooper Street
Subdivision Review, First Reading
11 / 16/2009
Unit I Unit 2 Total
Bedroom Count 1 bedroom 1 bedroom 2 bedrooms
Net Livable Area
Pro osed 600 sq ft. 600 sq. ft. 1,200 sq. fr.
Min. Net Livable
Area R wired 600 sq. fr. 600 sq. ft. 1,200 sq. fr.
Cate o 2 2 Cate or 2
Emptoyecs
Housed TE 1.75 1.75 3.5*
Page 5 of 7
Table 3• Proposed Free Market Residential
` Unit l Unit 2 Unit 3°' Total
NefLvable Area 2,000 sq. fr. 1,400 sq. ft. 600 sq. fr. 4,000 sq. ft.
Pro osed
Location Third floor Third floor Second Floor
Table 4• Proposed Commercial Net Leasable Area
Basement First Floor Second Floor Total
Net Leasable Area 4,800 sq. fr. 4,079sq. ft. 3,405 sq. ft. 12,284 sq. ft.
Prtr
# of spaces 1 space that can 4 spaces 3 spaces 8 spaces
ro sed be divided
Existing Net 2,935 sq. tt. 4,583 sq. ft. 4,563sq. ft. 12,081 sq. ft.
Leasable Area
STAFF COMMENTS:
SUBDIVISION:
The Applicant is requesting subdivision approval because the proposal includes the development
of multi-family dwelling units, pursuant to the definition of subdivision in the City's Land Use
Code. During the first round of public hearings for subdivision review in 2007, concerns were
voiced about the lack of pedestrian amenity space, mass, scale and height and questions were
raised as to whether the proposed development met the AACP. The applicant redesigned the
building to specifically address these concerns, as outlined above, and satisfy the direction in the
AACP.
Staff finds that it is important to note the conscientious changes that the applicant made to the
design in response to the community and Council. The applicant worked with Staff, the 2006 Land
Use Code and the current Code (even though the project is not required to meet the current Code)
to redesign a building that coalesces the standards and guidelines into a cohesive project that fits
into the context of the site. Staff finds that the applicant made an assiduous effort to design a
building that fits into the downtown historic district and addresses the issues raised during the 2008
public hearings.
PUBLIC OUTREACH:
The applicant held a public open house to present the amended design on July 7, 2009. Outreach
was made to the citizens that submitted email comments on the project during the last round of
Council reviews.
In reviewing the subdivision portion of the application, Staff believes that the proposal meets the
applicable subdivision review standards established in Land Use Code Section 26.480.050,
Review Standards (Exhibit A.) Staff recommends that the applicant continue public outreach to
communicate construction management plans if/when the site is redeveloped.
434 East Cooper Street
Subdivision Review, First Reading
11 / 16/2009
Page 6 of 7
SCHOOL LANDS DEDICATION:
Given that the proposed development constitutes a full subdivision review, Land Use Code
Section 26.620, School Lands Dedications, requires that the Applicant either dedicate lands for
school function or pay acash-in-lieu payment. The Applicant has proposed to pay acash-in-lieu
payment pursuant to the fee schedule established in Land Use Code Section 26.620.
Staff has included a condition of approval in the proposed ordinance requiring that the
Applicant pay the School Lands Dedications fee prior to issuance of a building permit for the
proposed building.
IMPACT FEES
The Applicant is required to pay a Pazk Development Impact Fee for additional bedrooms added
to the site and additional net leasable created, pursuant to Land Use Code Section 26.610, Park
Development Impact Fee. The impact fee for this project shall be calculated at the time of
building permit submittal.
Staff has included a condition of approval in the proposed resolution requiring that a Park
Development Impact Fee be paid at prior to building permit issuance.
REFERRAL AGENCY COMMENTS:
Referral departments have reviewed the proposed application and their requirements have been
included as conditions of approval when appropriate.
RECOMMENDATION:
[n reviewing the proposal, Staff believes that the project is generally consistent with the goals of
the AACP as well as the applicable review standards in the City Land Use Code. This project
provides affordable housing and versatile net leasable spaces downtown.
RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE~:
"I move to approve Ordinance No.2~ Series of 2009, approving with conditions, subdivision
review of the Mountain Plaza Building to construct amixed-use structure on the property known
as 434 E. Cooper Avenue on first reading."
CITV 1VIANACER
ATTACHMENTS:
EXHIBIT A -Review Criteria and Staff Findings.
EXHIBIT B -Historic Preservation Commission minutes dated July 22, 2009 & August 12, 2009.
EXHIBIT C -Historic Preservation Resolution No. 18, Series of 2009.
ExHISIT D-Planning and Zoning Commission minutes dated September 15, 2009.
ExHISIT E-Planning and Zoning Commission Resolution No.l4, Series of 2009.
ExHISIT F-City Council minutes dated May 27, 2008.
EXHIBIT G -Application.
434 East Cooper Street
Subdivision Review, First Reading
11/16/2009
Page 7 of 7
Ordinance No. L(J
(SERIES OF 2009)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING WITH CONDITIONS SUBDIVISION REVIEW FOR
THE MOUNTAIN PLAZA (AKA BIDWELL BUILDING) LOCATED AT 434 E.
COOPER AVENUE, LOTS Q, R AND S, BLOCK 89, CITY AND TOWNSITE OF
ASPEN, PITKIN COUNTY, COLORADO.
Parcel No. 2737-182-16-011
WHEREAS, the Community Development Department received an application
from the Bert Bidwell Investment Corporation requesting three (3) Growth Management
Review approvals and approval for Subdivision to develop amixed-use building known
as the Mountain Plaza Building located at 434 E. Cooper Avenue; and,
WHEREAS, an initial land use application for the project was submitted on
March 2006; therefore, the application is reviewed pursuant to the Land Use Code in
effect at that time; and,
WHEREAS, prior to applying for the Growth Management Reviews the
Applicant received approvals from the Historic Preservation Commission for Conceptual
Design Review, View Plane Review, and Commercial Design Review via Resolution No.
20, Series of 2007; and,
WHEREAS, prior to applying for subdivision approval the Applicant received
three Growth Management approvals and a recommendation of subdivision approval
from the Planning and Zoning Commission via Resolution No.26, Series of 2007 for a
Mixed-Use Building which contains 10,585 sq. ft. of net leasable area, three (3) free-
market residential units with a total Floor Area Ratio of .82:1 or 7,392 sq. fr. and
individual net livable area of 2,000 sq. ft. each, and three (3) affordable housing units
with a total of 2,241 sq. fr. of net livable area; and,
WHEREAS, once the land use approvals and recommendation of approval were
granted by the Planning and Zoning Commission, the Applicant requested Subdivision
approval of the City Council; and,
WHEREAS, upon review of the application and the applicable code standards,
the Community Development Department recommended approval, with conditions, of the
proposed subdivision request; and,
WHEREAS, during duly noticed public hearings on March 24, 2008, April 14,
2008, May 12, 2008 and May 27, 2008, the Aspen City Council opened the hearing, took
public testimony, considered pertinent recommendations from the Community
Development Director and referral agencies, and considered the development proposal
under the applicable provisions of the Municipal Code as identified; and,
Ordinance No. _ Series of 2009
434 East Cooper Street, Subdivision
11/25/2009
Page 1 of 8
WHEREAS, the Aspen City Council found that the development proposal did not
meet all the applicable development standards pursuant to Land Use Code Section
26.480.050, Subdivision Review Standards, and found that the proposal was inconsistent
with the goals and elements of tl}e Aspen Area Community Plan and denied Ordinance No.
1, Series of 2008, the request for Subdivision approval, by a vote of four to one (4 -1) on
May 27, 2009; and,
WHEREAS, the Aspen City Council voted to reconsider Ordinance No. 1, Series of
2008 by a three to two (3 - 2) vote on June 9, 2008; and,
WHEREAS, the Aspen City Council during a duly noticed public hearing on June
23, 2008 opened and continued the public hearing to July 14, 2008; and, on that date
opened the hearing, took public testimony, considered pertinent recommendations from
the Community Development Director and remanded Ordinance No. 1, Series of 2008 back
to the Historic Preservation Commission and the Planning and Zoning Commission to
review the significant design changes by a vote of four to one (4 - 1); and
WHEREAS, Ordinance No. 1, Series of 2008 was not adopted; however, the
application, Growth Management allotments and Subdivision recommendation granted by
the Planning and Zoning Commission via Resolution No.26, Series of 2007 remain valid;
and,
WHEREAS, the Historic Preservation Commission, with referral comments from
the Planning and Zoning Commission, granted Conceptual Major Development,
Commercial Design Standard Review and Vievvplane F,xemption for the amended design
on August 12, 2009 via Resolution No. 18, Series of 2009; and,
WHEREAS, the Planning and Zoning Commission granted Growth Management
Review for the Expansion of Existing Commercial Development for 203 square feet of new
net leasable area on September 15, 2009 via Resolution No. 14, Series of 2009; and,
WHEREAS, the amended Subdivision application before the Aspen City Council
is for aMixed-Use Building which contains 12,284 sq. fr. of net leasable area, three (3)
free-market residential units totaling a Floor Area Ratio of .56:1 or 5,078 sq. ft. and
individual net livable area of 2,000 sq. fr., 1,400 sq. fr. and 600 sq. fr., and two (2)
affordable housing units with a total of 1,200 sq. ft. of net livable area; and,
WHEREAS, during a duly noticed public hearing on January 11, 2010, the
Aspen City Council opened the hearing, took public testimony, considered pertinent
recommendations from the Community Development Director, referral agencies,
considered the development proposal under the applicable provisions of the Municipal Code
as identified herein and adopted Ordinance No. _, Series of 2009, approving with
conditions, the Subdivision application; and,
WHEREAS, the Aspen City Council finds that the development proposal meets or
exceeds all the applicable development standards and that the approval of the development
proposal, with conditions, is consistent with the goals and elements of the Aspen Area
Community Plan; and,
Ordinance No. _ Series of 2009
434 East Cooper Street, Subdivision
] 1/25/2009
Page 2 of 8
WHEREAS, the City Council finds that this ordinance furthers and is necessary for
the promotion of public health, safety, and welfaze.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN CITY
COUNCIL AS FOLLOWS:
Section I:
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal
Code, the City Council hereby approves subdivision review for the development of a
mixed-use building containing containing three free-mazket units with a total Floor Area
Ratio of .56:1 or 4,000 sq. ft., two affordable housing units containing a minimum of
1,200 sq. ft. of net livable area (both Category 2 units), and a commercial component
containing a maximum of 12,284 sq. ft. of net leasable area as shown in the floor plans of
application dated November 11, 2009.
Section 2: Agreement
The Applicant shall record a subdivision 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. The 180 days shall commence upon the granting of
Final Design Review approval by the Historic Preservation Commission. The subdivision
agreement shall require recordation of a condominium plat prior to issuance of a Certificate
of Occupancy.
Section 3: Building
The Applicant shall meet adopted building codes and requirements if and when a
building permit is submitted. Additionally, as represented in the growth management and
subdivision application dated August 15, 2007, the Applicant will attain, at a minimum, a
LEED Silver Certification.
Section 4: Engineerine
The Applicant's design shall be compliant with all sections of the City of Aspen
Municipal Code, Title 21 and all construction and excavation standazds published by the
Engineering Department. A Stormwater drainage plan is required to be submitted prior to
recordation of the Subdivision Agreement. A Stormwater System development Fee shall
be assessed at the time of redevelopment. The construction management plan required as
part of building permit application is a critical component of this redevelopment project
as it is located adjacent to a pedestrian mall and public impacts shall be minimized.
Above ground utilities shall be located on the site and not within the public right-of--way.
Section 5: Affordable Housin¢
A. The affordable housing requirements of the project shall be met with provision of two
units. The Applicant shall provide two (2) one-bedroom, Category 2, 600 square feet units
as represented in their application.
Ordinance No. _ Series of 2009
434 East Cooper Street, Subdivision
11/25/2009
Page 3 of 8
B. Rental units aze allowed with the following conditions:
1) Both one bedroom units will be deed-restricted as Category 2
2) The deed-restriction will allow for the units to become ownership units at such
time the owners would request this change and/or at such time the APCHA
deems one of the units out of compliance over a period of more than one year. If
any of the units are found to be out of compliance for one yeaz, or the owner
elects to sell the units, all of the units would be listed for sale with the Housing
Office as specified in the deed restriction at Category 2 maximum sales prices,
based on the sales price stated in the Guidelines in effect at the time of
recordation of the deed restriction, appreciated as stated in the deed restriction
(3% or the Consumer Price Index, whichever is less), as of the date of the listing
of the units.
3) Rental of the units shall be open to all qualified employees in Aspen and Pitkin
County and shall not be tied to employment; however, the owner(s) of the
commercial or free-market residential units may still choose qualified renters and
the tenants may still be employed by the commercial component. The HOA may
maintain ownership of the units.
4) The governing documents of the development shall be drafted to reflect the
potential for the rental units to become ownership units; i.e., the Protective
Covenants, By-Laws, Articles of Incorporation, etc. Since the project is a mixed
free-market/deed-restricted project, the assessments shall be determined based on
the price values of the free-market component compared to the deed-restricted
component. This language shall be required in the Covenants associated with the
project. No changes to this restriction shall be allowed without the APCHA's
approval.
5) As long as the units remain as rental units, APCHA or the applicant shall
structure a deed restriction for the employee housing units only such that an
undivided 1/10~h of 1 percent interest in the ownership of each of the employee
units is deed restricted in perpetuity to the Aspen/Pitkin County Housing
Authority; or until such time the units become ownership units; or the applicant
may propose any other means that the Housing Authority determines
acceptable.
6) Language shall be provided in the Protective Covenants covering the units'
assessments upon the units becoming "for sale" units. The assessments shall be
based on the value of the free-market units compazed to the deed-restricted units.
This language shall be required in the approval and in the Covenants associated
with the project and allow for the same voting privilege as the free-market
Ordinance No. _ Series of 2009
434 East Cooper Street, Subdivision
11 /25/2009
Page 4 of 8
residential units upon the units becoming "for sale" units. No changes to this
restriction are allowed without APCHA's approval.
7) The deed-restriction shall be recorded at the time of recordation of the
Condominium Plat and prior to Certificate of Occupancy.
Section 6: Fire Mitigation
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 (IPC, as amended, Section 903 and 907).
Section 7: 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.
Each of the units within the building shall have individual water meters.
Section 8• Sanitation District Requirements
Service is contingent upon compliance with the District's rules, regulations, and
specifications, which are on file at the District office. Oil and Grease interceptors (not
traps) are required for all food processing establishments and shall be identified and
specified prior to building permit. Oil and sand separators are required for the parking
garage. Driveway entrance drains shall drain to drywells and elevator shaft drains must
flow through o/s interceptor. Old service lines must be excavated and properly
abandoned, to the extent required by the district. Below grade development may require
installation of a pumping system. One tap is allowed; however shared service line
agreements may be required. Where additional development produces flows that
negatively impact the planned reserve capacity of the existing collection and treatment
system, fees will be assessed.
Section 9: Environmental Health
The state of Colorado mandates specific mitigation requirements with regard 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 10: Exterior Lighting
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 11• School Lands Dedication and Impact Fees
The Applicant shall pay the Park Development impact fee and the School Lands
Dedication assessed at the time of building permit application submittal and paid at
building permit issuance.
Ordinance No. _ Series of 2009
434 East Cooper Street, Subdivision
11/25/2009
Page 5 of 8
Section 12: Parks
A. A formal vegetation protection plan shall be required with building permit
application. Tree Removal Permit is required for the removal of the Crabapple street
trees.
B. Excavation of materials, storage of materials, storage of construction backfill, storage
of equipment, foot or vehicle traffic associated with construction is prohibited on
Cooper Ave Mall, unless permitted under condition "E" within this section..
C. Utility connections located within the mall shall be coordinated and designed in a manner
that does not encroach into the tree protection zones or disturb the surface of the mall. If a
utility is located within the mall, it must be direct bore minimizing surface disturbance to the
location of abandonment and new taps. Water taps and abandonments will not be approved
within designated tree protection zones; no traditional excavation will be allowed in the mall
for water or electric connections. Electrical service shall be installed to all trees and
appropriately spaced from the trunk of the tree.
D. The storm drain connection shall be coordinated with Parks Department Staff. There
is an opportunity to work in tandem on a joint project thus reducing the impacts to the
mall. Parks needs to address a failing raw water splitter box located under the mall in
the approximate location of the proposed storm drain installation. Further study of
the storm drain connection is required; again a joint effort could reduce costs to the
project and make improvements to drainage on the mall. The applicant is required to
work with Parks staff to determine the best approach for this installation.
E. If temporary construction access to the site is requested on Cooper Avenue Mall, a ROW
permit is required for approval. Access will only be granted during the off season; all work
within the Mall has to be done and completed during these times: Spring: March 16'h till
June I" /Fall: Sept 15'h till Dec Is'.
F. Damage to mall brick or mall amenities will be the responsibility of the developer,
replacement of brick will be done to COA standards and require the developer to use the
City's contractor for mall brick replacement.
G. New landscaping in the right of way located on Galena Street will be done to the
Landscaping in the Right of Way standards. Parks is recommending Summit Ash, a species
of Green Ash, planted on 20-foot centers throughout the entire strip. The developer shall
meet with the Parks Department to design the appropriate planting trench and spacing of the
trees.
i) All changes or improvements to the Galena Street ROW plantings should
follow the DEPP standards for tree grates (with light ports for electrical
boxes) and tree guards.
ii) Tree planting boxes are not approved for installation a tree trench is required
using the City of Aspen Engineering Standards for structural soil.
Ordinance No. _ Series of 2009
434 East Cooper Street, Subdivision
11 /25/2009
Page 6 of 8
iii) ROW requirements require adequate irrigation pressure and coverage, if a
system is not in place one will need to be added.
Section 13: Vested Rights
The development approvals granted pursuant to Planning and Zoning Commission
Resolution Number 26, Series of 2006 and Resolution ] 5, Series of 2009 and herein shall
be vested for a period of three (3) years from the date of issuance of the development
order, which shall occur upon Final Design Review approval by the Aspen Historic
Preservation Commission (HPC).
No later than fourteen (14) days following the final approval of all requisite reviews
necessary to obtain a development order as set forth in this ordinance, including Final
Design Review approval from the HPC, the City Clerk shall cause to be published in a
newspaper of general circulation within the jurisdictional boundaries of the City of
Aspen, a notice advising the general public of the approval of a site specific development
plan and creation of a vested property right pursuant to this Title. Such notice shall be
substantially in the following form:
Notice is hereby given to the general public of the approval of a vested property
right, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68,
Colorado Revised Statutes, pertaining to the following described property: 434 E.
Cooper Ave., City and Townsite of Aspen, CO, by Ordinance No. Series of
2009, of the Aspen City Council, and Resolution No. _ Series of 2010, of the
Aspen Historic Preservation Commission.
Section 14:
All material representations and commitments made by the Applicant pursuant to the
development proposal approvals as herein awarded, whether in public hearing or
documentation presented before the Planning and Zoning Commission or City Council, are
hereby incorporated in such plan development approvals and the same shall be complied
with as if fully set forth herein, unless amended by an authorized entity.
Section 15:
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 16:
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.
Ordinance No. _ Series of 2009
434 East Cooper Street, Subdivision
1 ]/25/2009
Page 7 of 8
The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this
ordinance in the office of the Pitkin County Clerk and Recorder.
Section 17:
A public hearing on this ordinance shall be held on the 11"' day of January, 2010, at a
meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers,
Aspen City Hall, Aspen, Colorado, a minimum of fifreen days prior to which hearing a public
notice of the same shall be published in a newspaper of general circulation within the City of
Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 7`h day of December, 2009.
Attest:
Kathryn S. Koch, City Clerk
Michael C. Ireland, Mayor
FINALLY, adopted, passed and approved this _ day of , 2010.
Attest:
Kathryn S. Koch, City Clerk
Approved as to form:
City Attorney
Michael C. Ireland, Mayor
Ordinance No. _ Series of 2009
434 East Cooper Street, Subdivision
11/25/2009
Page 8 of 8
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.
a. The proposed subdivision shall be consistent with the Aspen Area Comprehensive
Plan.
Staff Finding: The project provides affordable housing within the city limits which meets
one of the AACP's housing goals. It also contains new development within the Urban
Growth Boundary which is a goal of the managing growth section of the AACP. With the
location of the development, the building supports the opportunity for choice in travel
modes: transit, walking, and bicycling. Additionally, the building is projected to be rated as
LEEDS Silver. Specifically, the application is consistent with the following goals of the
AACP:
Managing_Growth
"Contain development with the creation of the Aspen Community Growth Boundary... to
ensure development is contained and sprawl is minimized. " The proposed development and
subdivision is within the Aspen Community Growth Boundary. Staff finds the subdivision
meets this goal of the AACP.
"Foster awell-balanced community through integrated design that promotes economic
diversity, transit and pedestrian friendly lifestyles, and the mixing of people from different
backgrounds. " The subdivision and development creates spaces for free-market and deed-
restricted residences, and a mix of spaces for office and commercial uses. The commercial
and office uses offered are located on the basement, first and second floors and comprise a
range of net leasable space, which encourages awell-balanced mix of businesses. The
location of the development fosters lifestyles conducive to transit and pedestrian use, as it is
located within the Aspen Infill Area, has access to the bus route, and is within the
Commercial Core. Staff finds the subdivision meets this goal of the AACP.
"franspor[ation
".Structure new growth in the community on compact, mixed-use patterns that enable and
support travel by foot, bicycle, and public transportation for all types of trips. " The proposal
is centrally located downtown and provides easy access for a variety of transportation
options. Staff finds the subdivision meets this goal of the AACP.
"Reduce the adverse impacts of automobiles on the Aspen area. " The development includes
underground parking for tenants and residents of the building. The location of the parking
reduces the impact these cars would otherwise have on the surrounding community if they
were required to park at street level. .Staff finds the subdivision meets this goal of the
AACP.
434 East Cooper Street
Exhibit A
Subdivision Review Standards
11 / 17/2009
"Require all employment, school, social, recreation or other activities that generate demand
for travel to mitigate Sall c impacts through support of alternative transportation modes in
proportion to trips generated. " The applicant is committed to working with the Engineering
Department to determine and mitigate traffic impacts both during construction and after the
development is complete. Staff finds the subdivision meets this goal of the AACP.
Housing
"Our housing policy should bolster our economic and social diversity, reinforce variety, and
enhance our sense of community by integrating affordable housing into the fabric of our
town. A healthy social balance includes all income ranges and types of people. Each project
should endeavor to further that mix and to avoid segregation of economic and social classes
by project. " The proposal provides two (2) Categories 2 one bedroom units located on the
same floor as one of the three (3) proposed Free Market Residential units. Deed restricting
the units as Category 2 contributes to economic and social diversity within the project and
the community. Staff finds the subdivision meets this goal of the AACP.
"Development of affordable housing within the traditional town site should be encourages so
as to protect our open and rural lands. " The redevelopment proposes affordable housing
onsite centrally located in the downtown core. Staff finds that the subdivision meets this
goal.
Economic Sustainabilitv
"Essential to long-term viability is the unique, varied, high quality, and welcoming
experience Aspen offers to both residents and a diverse visitor population. They demand a
lively, small-scale downtown with diverse and unique shops... " Staff finds that the variety of
commercial net leasable area on different levels of the proposed new building promotes
diversity in tenants and potential opportunities for local business owners to have space
downtown. Staff finds that the subdivision meets this goal.
Design Quality
"Ensure the character of the built environment in Aspen is maintained through public
outreach and education about quality design, historical context, and the influence of the
existing built environments. " The applicant held a public open house to present and discuss
the proposed redevelopment on July 7, 2009. Outreach was made to the citizens that
submitted email comments on the project during the last round of Council reviews. Staff
finds that this goal is met.
"We wish to encourage creativity that results in design solutions that are fresh and
innovative, yet are net additions to the built environment by being contextually appropriate
and harmonious without being copies of that which already exists. " The proposed design
meets the Historic Preservation Design Guidelines for a new building in the Commercial
Core Historic District. The Historic Preservation Commission and Staff found that the
proposal is contextually appropriate for the historic downtown core while at the same time it
balances a new approach to traditional 19`" century commercial development with setbacks,
material changes and fenestration details. Staff finds that this goal is met.
434 East Cooper Street
Exhibit A
Subdivision Review Standards
11/17/2009
b. The proposed subdivision shall be consistent with the character of existing land uses
in the area.
Staff Findine: Staff believes that the proposed mixed- use is consistent with the land uses in
the immediate vicinity which include commercial office uses, retail uses, affordable housing
uses and free-market multi-family uses within the downtown core. Staff finds this criterion to
be met.
c. The proposed subdivision shall not adversely affect the future development of
surrounding areas.
Staff Finding: As the application indicates, the surrounding properties are close to fully
developed. Therefore, Staff does not believe that the proposal will adversely affect the future
development of the surrounding properties. The applicant has been working closely with the
Engineering Department to create a construction management plan to mitigate the impact of
the construction on the neighbors and community. At this point, the Engineering Department
is satisfied with the direction of the construction management plan and is working closely
with the applicants to continue to develop and improve it. A detailed construction
management plan is required to be submitted with the building permit. Staff finds that this
criterion is met.
d. The proposed subdivision shall be in compliance with all applicable requirements of
this Title.
Staff Findin¢: The proposed development is in compliance with the Commercial Core zone
district requirements and meets all other land use regulations. Staff finds this criterion to be
met.
B. Suitability of land for subdivision.
a. 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.
b. 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 Findine: Staff believes that the property is suitable for subdivision. The site contains
no overly steep topography and no known geologic hazards that may harm the health of any
of the inhabitants of the proposed development. In addition, Staff believes that there will not
be a duplication or premature extension of public facilities because the property to be
434 East Cooper Street
Exhibit A
Subdivision Review Standards
11 /17/2009
subdivided is already served by adequate public facilities. Therefore, 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:
1. A unique situation exists for the development where strict adherence to the
subdivision design standards would result in incompatibility with the Aspen Area
Comprehensive Plan, the existing, neighboring development areas, and/or the goals of
the community.
2. The applicant shall specify each design standard variation requested and
provide justification for each variation request, providing design recommendations by
professional engineers as necessary.
S[aff Findine: The Applicant has consented in the application to meet the applicable
improvements pursuant to Section 26.580. 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 Findine,: No affordable housing currently exists on site. The Applicant is providing
affordable housing units as required by the Land Use Code and meets the affordable housing
review standards of the GMQS system. Staff finds this criterion to be met.
F,. School Land Dedication. Compliance with the School Land Dedication Standards set
forth at Chapter 26.630.
Staff Findine: The proposed subdivision is required to meet the School Land Dedication
Standards pursuant to Land Use Code Section 26.630. The Applicant has proposed to pay
cash-in-lieu of providing land, which will be paid prior to building permit issuance. Thus,
staff finds this criterion to be met.
434 East Cooper Street
Exhibit A
Subdivision Review Standards
11/17/2009
F. Growth Management Approval. Subdivision 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: Allotments for the proposed three (3) free-market residential units and two
(2) affordable housing units have been granted.
434 East Cooper Street
Exhibit A
Subdivision Review Standards
11 / 17/2009
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 22.2009
Chairperson, Michael Hoffman called the meeting to order at 5:00 p.m.
Commissioners in attendance: Brian McNellis, Sarah Broughton, Jay Maytin
and Ann Mullins. Nora Berko was excused.
Staff present: John Worcester, City Attorney
Amy Guthrie, Preservation Officer
Sara Adams, Historic Preservation Planner
Kathy Strickland, Chief Deputy City Clerk
MOTION.• Sarah moved to approve the minutes of April 22 and May 13
2009; second by Jay. All in favor, motion carried.
MOTION: Jay moved to approve the minutes of Apri18`~' and May 27, 2009;
second by Ann. All in favor, motion carried.
ommissioner Comments:
To i Kronberg said we don't have a specific section
histo 'c district. We have had three historic blocks 1
their hi oric character; the buildings behind city h~I
the Syzyg`X building. I haven't seen where a
against the Block that it is on or the district t]
becoming big rba
projects and app y
building standards
the grass, fresh air
I feel it is covered
buildings. We have
them to the
~d applying t
i~seating are
nthe commercial core
3rally destroyed of
the fire station area;
r building is scored
is in. Buildings are
taking the development
cY. We are taking the commercial
o the building. We are eliminating
I the things that make Aspen special.
Jay pointed out that he is
mass on a block.
Sarah Broughton
Broughton Archi
Lift I Ticket
Georgia
Amy
HPC
projects taking into consideration the
ecuse hersblf on 434 E. Cooper. Rowland and
e are the locaa architects on the project.
- 701 S. Aspen`St. - (Cont'd from June 24, 2009)
son, Aspen Historic Society
2006 when the ticket office was
hewed the initial proposal that was bra
and Roaring Fork Mountain Lodge to
and make it the museum and add some
intact than it is today
in by the Historical
;'die Skier chalet on the
and restore
Exhibit B
HPC Minutes
7/22/09 & 8/12/09
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 22.2009
434 E. Cooper Ave. (aka Bidwell/Mountain Plaza Bldg.) Major
Development Couceptual, Commercial Design Standard Review, View
Plane Exemption Review
Sarah Broughton will recuse herself on 434 E. Cooper. Rowland and
Broughton Architecture are the local architects on the project.
Jim True, Special Counsel stated that the public notice needs to be submitted
by noon tomorrow.
Mitch Haas, Haas Planning
John Rowland, Rowland & Broughton Architecture
Sara stated that the lot is 9,000 square feet and located in the commercial
core and the application is to redevelop the parcel with a new mixed use
building. HPC has previously approved demolition of the existing building.
In 2007 HPC granted conceptual development, commercial design standard
review and also view plan exemption for a different project for 434 E.
Cooper. It then travelled to P&Z and they granted approval for growth
management for new commercial and new residential and new affordable
housing units. They also recommended approval to City Council for
subdivision. The project then travelled to City Council and there were a lot
of concerns from the public and council regarding the mass, scale, height
and public amenity space. City council ended up denying the application for
subdivision. The applicant restudied the project and did a new design and
went back to City Council and asked for them to reconsider denial. Council
granted reconsideration and recommended that HPC review the new design
since it had changed so much. It is important to point out that the
application is still under the March of 2006 land use code.
Issues brought up by Council were the lack of public amenity space. With
the redesign they are setting a portion of the building back along the Cooper
Street elevation and providing a 12% pedestrian amenity space on grade.
Some of the issues the public and Council were concerned about are in
conflict with our guidelines. Design guideline 13.8 (maintain the alignment
of facades at the sidewalks edge). They are provided an 18 foot setback
from the property line; however, we do think the on-site pedestrian space is
appropriate. They are providing an architectural element that distinguishes
between the pedestrian mall and the public amenity space. We understand
Exhibit B
I IPC Minutes
7/22/09 & 8/12/09
8
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 22.2009
that guideline 13.8 is not met but we do think it appropriate for this site and
it does respond to the issues of the public and council,
Height: Originally the design of the building was 41 feet and the public and
council felt that was too tall. The new building they are proposing is three
stories but they have dropped the height to 36.7 to the highest point. The
maximum height under the 2006 code is 46 feet. Staff feels the height is
appropriate and it is broken up into modules and the third floor is
significantly set back.
Mass and scale: This is one of the most important corners in our downtown
which is active and vital. It is very important that the mass and scale fit into
the context. The concern was filling the entire lot with building and no
setbacks. An issue is the one-story element on the comer. Guideline 13.9
(maintain the average perceived scale) of two-story buildings at the
sidewalk. We talked about if a one-story element is appropriate. Staff feels
the one-story element is appropriate as it steps up into atwo-story element;
(study presented to HPC).
Another issue was the loss of the western vernacular. The applicant is
addressing some of that concern and guideline 13.11 is met. The other main
issue is the height of the store fronts. There is commercial proposed for the
first floor and the second floor. We typically like storefronts to be in the
range of a typical store front. The applicant is proposing two to four feet
lower in height than adjacent structures. We are suggesting HPC discuss the
trade offs of raising the store front heights and what that will do to the two-
story and three-story element. We don't believe the total height should be
raised. Maybe for final the applicant can study the height of the store fronts.
View plane review: The height was dropped and previously HPC granted a
view plane exemption. We still think there is a minimal view plane impact
and it is appropriate.
Main issues HPC should address.
The majority of the Planning and Zoning Commission were in favor of the
one-story element and the public amenity proposed. The majority also
thought that the height was appropriate as proposed. We overall think the
project meets the reviews that are on the table tonight and recommending
approval with the condition that the applicant study the store front and
exninn a
HPC Minutes
722/09 & 8/12/09
9
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JiJLY 22.2009
fenestration heights and the impact to the overall height of the building to
better relate to the surrounding contexts for final.
John Rowland commented that they are meeting the current height
restrictions instead of the 2006 restrictions which are higher.
Jim True said the project came through various sundry reviews and when it
got to Council, it was denied. At the applicants request there was a motion to
reconsider which allowed them to go back and redesign. Jim said there aze
certain aspects of the approval that are still available but because of the new
design they are coming back to HPC.
Sara said they need the commercial design standard review; HPC conceptual
review and view plan exemption. Planning and Zoning approvals for growth
management are still valid and they supported subdivision.
Jody Edward, attorney for the applicant said basically it is an amendment to
the 2006 application.
Mitch Haas, planning consultant for the applicant.
Mitch said they aze OK with staff's presentation. We do feel it necessary to
give background behind the design and explain the project and view plane.
This property went through landmark proceedings and was fumed down so it
is not a landmark. The idea is to meet the predominance of the guidelines
but every guideline doesn't need to be met to the letter so long as the spirit
of the guidelines are complied with. The design of this building
compliments the Independence Square building and the Volk Plaza building
on opposite corners. The project will be built to silver or better standards. A
lot of the materials will be reused. Mitch said the modules across the front
are 30 feet each with different heights. The public amenity space is 1,100
square feet off Cooper and it is 18 x 60 feet long.
Michael asked Mitch about raising the height of the store fronts. Mitch said
he has no problem studying them but it might affect the second floor.
Brian asked about the modulation of the fagade on the Galena side which is
against the guidelines. Is it appropriate. Sara said staff felt that it was
appropriate to break up the fagade of that side. The Ute City Banque is a
comer building and you have modu]es that are different.
Exhibit N
HPC Minutes
7/22/09 & 8/12/09
10
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JiILY 22, 2009
Brian said the way the traditional blocks are set up one street would be the
predominant street where most of the streets would align up onto and the
other one would be a secondary street where you see the full side length.
Mitch said they were working off the Andre building.
Jay said the malls were added in the 80's and the streets were changed. On
the Hyman mall the Aspen Drug was built and it is a one-story and has a
large alcove where Dish is. It is.OK to modify the guideline. The mall is
primary and Galena Street isn't.
John Rowland said the one-story structure has a deck above it on the Cooper
Ave. side. The wood boardwalk would be at ground level for the pedestrian
amenity. It has 1,080 square feet with a hitching post. We will use the
railings of the existing building which came from an old bank in Denver.
There are ten parking spaces in the basement with an auto lift. Four
commercial units are proposed. There are two units on the third floor; one is
2,000 squaze feet and the other is 1,400 square feet. The materiality is brick
and wood. The corner module is reclaimed brick.
Exhibit II -Building analysis.
Exhibit I -Affidavit of public notice.
Chairperson, Michael Hoffman opened the public hearing.
June Kirk said the malls were done in the 70's. All along Cooper there were
one-story buildings and two-story setbacks that were designed by our land
use codes specifically to keep that character. There are setbacks of I S feet
and the height doesn't go up to more than 25 feet. You need to look at what
this proposal does to the character of the mall. Another issue is the view
plane and there should be no exemptions of view planes. I am also
concerned about the fenestration on the Galena Street side. The pedestrian
amenity is good and could be extended to the Galena Street side. Neighbors
are concerned about the height and it is a subdivision application that is in an
historic district and doesn't necessarily conform with the character of the
district with that third floor and if it could be dropped to two stories it would
be a better application.
F.chibit B
HPC Minutes
7/22/09 & 8/12/09
~~
ASPEN HISTORIC PRESERVATION COMMISSION
_MINUTES OF JULY 22.2009
Toni Kronberg said this is a new building that has come back with a new
design and was it publically noticed. Mitch replied yes and they even
noticed the public outreach meeting which was voluntary. I was one to
support the reconsideration but none of my comments are reflected in the
design. The reason why the courtyard of the Bidwell building was there is
because it matched the open space of the Volk building, that it was
rectangular and a gathering space. By filling in the space you aze talking
away something that was historic. I had suggested not to fill in the open
space and put a flooring on it and to match the open space with the Volk
building whether it be a restaurant whatever and not to add the free mazket
unit on top of the building which destroys the historic height of the buildings
along Galena Street. On old post cards the roof lines along Galena are
consistent. How does this building relate to the blocks surrounding it? This
building might meet the guidelines but it doesn't meet the Aspen Area
Community Plan which said new development has to be in the scale of the
existing neighborhood.
Bill Wiener, said in the task force a statement was made that the City must
designate and mark its historic buildings before it goes to the public to show
they are the leader and in that they listed the two malls. This is a new
building in an historic area. We have talked today about western vernacular
and the three thirty foot modules and if you look at the plans that isn't what
we got. It has a 60/30 and an overhang that doesn't relate to anything. The
design is not relating enough to the Paradise Bakery on the Volk building. It
doesn't look like 3 thirty foot lots. It isn't about the building it is about the
place. Regarding view planes you don't look at them in cubic feet. On the
whole this is a good approach and can be fixed and be an asset if we
recognize how it falls into the overall area. We should wait to see what the
historic task for says and relate more to the other existing buildings.
Chairperson, Michael Hoffman closed the public input portion of the agenda
item.
Michael said he would like to discuss modulation and the Galena Street
facades. Are the structures perceived to be 3 thirty foot structures as is
traditional in this historic corridor?
Brian said he is not sure he has a problem or not but the modulation of the
30 foot components are not articulated all the way through to the ground on
the architecture. It makes for an interesting modern expression.
Exhibit B
HPC Minu[es
7/22/09 & S/12/09
~2
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 22, 2009
Ann said she thinks it works great and this is not an historic building. The
horizontal elements work well breaking up the modules.
Michael said he feels the Galena Street fagade is confusing and doesn't
work. All the Victorian blocks have the architecture consistent.
Brian pointed out that entrances on Galena are important to retain for vitality
of that street.
Jay said on Cooper Street the 30 foot sections are shown. You do loose the
concept a little on the middle section. The Galena Street is more difficult
because it is almost like we are looking at the building having two fronts.
Maybe have a little less detail on the Galena Street side, a more uniform
mass so you get a strong side on the building. This could be addressed at
final and this is not a mass and scale issue.
Michael said he is troubled by the Cooper Street mall. There is not enough
modulation in the middle element. Michael said he is not comfortable with
the pedestrian amenity and feels it doesn't work.
Sara pointed out section 26.412.0608 of the code. The 2006 code refers to
versatile space that will contribute to the pedestrian experience and vitality
downtown. The requirements are generally open to the sky, at grade and
accessible to the public so that it isn't privatized.
Ann said the space adheres to the amenity guidelines.
Jay said it is mimicked across the street at the Guido's building.
Michael asked about the middle 30 foot element on Galena. Mitch said it is
a modern interpretation and it is a modern building. We do not want it to
look historic. We did that once and it didn't work. This is clearly a
response from the direction of Council. It is not a strict 30 foot to the floor
and we don't want it to go to the floor. It sets itself off and does not mimic
the historic but is compatible with the historic patterns. There are three
facades.
Michael suggested that one of the middle elements be wider. Sara said there
are 60 foot fronts that are typical downtown; it is not always a 30 foot
Exhibit f3
IIPC Minuirs
7/22/09 & 8/12/09
13
ASPEN IIISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 22, 2009
fapade. If there is a way at final to deal with fenestration and not try to have
the middle and the piece to the east read as separate but as a 60 foot piece
maybe that would resolve the issue.
Mitch said this is a unique site and it has two prominent frontages and a
requirement and need for pedestrian space at the corner and it requires
unique approaches.
Brian said he is willing to give some liberty to the architect. The 30 foot
modules are well delineated with a contemporary twist.
Jay said the applicants have come back undersized, under the square footage
and responded to what they have heard from council and this board.
John Rowland addressed the fluidity of the 30 foot modules. This is a
dynamic urban space in our town. It is like the "living room". This is our
interpretation and our artistic endeavors. When we look at this space it is
not only the living room it is a ballroom. This building is literally dancing
and that is how we are looking at this space.
Ann said in terms of the height there is a real mix of buildings in that area
and the one stories are important but it is not necessary to duplicate that
down the street. There are two, three and four stories all around and I can't
see an argument for aone-story building.
Jay agreed. Too small of a building on that corner would be out of character
for the size and scale of the rest of the buildings around it. I like the fact that
it is a little bit of a one-story and complements the old store front. All board
members agreed.
Jay asked that the applicant study the material of the public amenity space
and possibly extend the mall material into your property to bring the mall
into your building or bring your building into the mall.
Ann said she disagrees with Jay and that the change in material is important
and maybe a soldier course with wood in between might work as a
suggestion.
rxn~bn ~
IIPC Minutes
7/22/09 & 8/12/09
14
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 22 2009
Michael pointed out that the idea of the retail uses spilling out onto the
public amenity space is great. Mitch said we want to leave the area flexible
and possibly a restaurant would come in.
Brian said he has been thinking about what Toni ICronberg said about
mirroring the plaza on the other side of the street by Paradise. This site is so
dynamic we don't need to deal with symmetry. It is acceptable to play with
different shapes and forms especially on the streetscape where this is a
rectangular space as opposed to what is at Paradise. It will create more
dynamics the way people will use the space.
Michael asked about the windows and should they be higher to match the
adjacent storefronts.
Ann said the windows work well because the building next door has ]ow
windows. If you raise the windows to the height of the Red Onion the
proportions will be very strange and you will end up with smaller windows
on the second story.
Sara said as a discussion for final; to have the building better relate to the
commercial core historic district was to deal with fenestration and materials
in a way that was more traditional just to make it a little more compatible.
Brian asked what the height of the windows are.
John Rowland said the proposed windows range from 10'2" to 11'2".
Sara said the reason we are bringing this up at conceptual it is important that
HPC talk about the relationship of raising the store front windows in
relationship to the overall height of the building.
Jay pointed out that the height of the windows are appropriate and they
actually make the Red Onion building stand out.
Ann pointed out if the windows become taller, that means the building has to
increase in height.
Michael said he feels the modulation and fenestration needs restudied.
E~n~nn ~
HNC Minutes
922/09 y< S/ 12/09
15
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 22.2009
Brian said he is not sure you will see the third floor element from the street
and if so that should be minimized as much as possible. Also if the
overhangs are visible they should be reduced in size also. Ann suggested
using a lighter element on the overhangs.
MOTION: Jay moved to approve conceptual development for 434 E.
Cooper Ave. with the requirement that the applicant restudy the modulation
of the Galena Street fagade as well as the overhang of the pent house
apartments. Motion second by Ann.
Michael said he would like to have the applicant come back before granting
approval because the changes are substantial enough and could affect the
fundamental design of the building.
Roll call: Brian, yes; Jay, yes; Ann,no; Michael, no. Motion died.
MOTION.• Michael moved to continue 434 E. Cooper Ave. until August 12``',
2009 asking that the applicant come back with a restudy of the Galena Street
fagade and the overhang of the penthouse and the modulations on Cooper
Ave. Motion second by Ann.
John said he would probably continue the element where the reclaimed brick
is down to the lower level which would alleviate the so called piece meal.
John suggested a site visit on the 12`".
All in favor, motion carried 4-0.
219 S. Third
Sarah was seated and chaired.
Brian excused himself.
Suzanne Foster, owner
Amy said at the last meeting HPC was asked whether they would give your
support to a reduced amount of bonus. Council did give the applicant
support to revisit the bonus with the I-IPC and 1-IPC supported a smaller
bonus. At the last meeting HPC wanted to make sure all of the figures were
right and Jake Vickery challenged some of the calculations and there have
Exhibit B
HPC Minutes
7/22/09 & 8/12/09
16
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 12, 2009
Chairperson, Michael Hoffinan called the meeting to order at 5:00 p.m.
Commissioners in attendance: Sarah Broughton, Jay Maytin and Ann
Mullins. Nora Berko was excused. Brian McNellis was seated at 5:45 p.m.
Staff present: Jim True, Special Counsel
Amy Guthrie, Preservation Officer
Sara Adams, Historic Preservation Planner
Kathy Strickland, Chief Deputy City Clerk
Sarah will recuse herself on 434 E. Cooper and 630 E. Hyman. Rowland
and Broughton Architecture are the architects on the projects.
710 N. Third Street -light fixtures (project
Suzanl~e Leydecker, owner said four years ago she began r
home an she built a beautiful home under the direction of
until now
submitted tc
and I didn't
ng went well. The exterior lighting
and staff and it was very clearly s
through. Lighting was put up ~
xtures were expensive. The,diQi
appropriate. The`fr
color and similar w
They have ten watt
is given. I don't have a
this board, Staff has cor
building. There are two
contemporary building s
the long stem. I
in them. I will f
O because I had
feet.
'no tron on the
/ e HPC. Up
pl~fr was not
tatdd in the guidelines
d I feel the fixtures are
nal fixtures were gold
to keep what exists.
dst them per the code if approval
four lights that need approved by
fixtures are too Victorian for the
two on the garage and one on the
Amy said staff is focused on t lighton Third Street. Historically these
buildings did not have a lot lighting. ,his building is fancier than a
miner's cottage. Staff an the applicant air concerned that this didn't go
through the proper chancels which would helve been better for everybody.
Suzanne Leydecker,~aid she made a mistake and a people whom she was
working with nev~mentioned it. I own all these li t fixtures and I think I
did a good job~f taking a house extremely historic anti making it gorgeous.
The entire w~Il of the house faces Third Street. ~~,
Michael id the lights facing Third Street by the front door 'olate section
14.6 oaf ur guidelines which states exterior lights should be si le in
and similar in color and intensity as used traditionally. ~\
~ e~cmm~ a
HPC Minutes
7/22/09 & 8/12/09
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 12 2009
Sara presented photographs as to what was typical downtown. For a corner
commercial building there was a variety of modules. There wasn't a specific
30/60 module for a corner storefront; there was a mix according to the use of
the commercial space. On the Bidwell building, the Galena Street side
extends 100 feet but you have an 18 foot pedestrian amenity setback. The
applicant is dealing with an 82 foot length of lot frontage. The restudy
includes a couple of modules which staff feels are successful and meet
guideline 3.11 and 3.17. Regarding the overhang on the third floor they cut
it back to 30 inches around the entire third floor except for one location at
the stair tower. Overall the historic guidelines are met. There is no change
in height and no change in the view plane from the last discussion on July
22"d Staff is still recommending that the applicant continue to study the
height of the storefronts to better relate to the historic context for final
review.
John Rowland, architect presented a power point.
John pointed out even though they are under the 2006 code they are adhering
to all the existing codes. The eave overhang on the third level originally had
a hybrid of different horizontal projections on the eave ranging from 6'6",
5', 6'9" and a 30 inch section. We standardized that whole eave to be
consistently being 30 inches all the way across. We were trying to do some
passive solar mitigation and we still think we can treat it with a 30 inch eave.
Galena Street fapade:
John said some of the concerns were that there was too much variation with
material, the modularity has to be consistent with the architecture, glazing
uniformity and relationship to the proportions of the Andre building across
the street. The end module was reduced to 25 feet wide which mirrors the
Andre building across the street instead of 30 feet wide. The other module
is 45 feet in width with punched openings. We now have only two modules
that are simplified. There are double hung windows on the second level and
they cascade down and blend into the Aspen Block Bldg. The pattern of
glazing continues down to the lower level.
Jay pointed out that it is important that the project meet the energy
requirements. John said even with the 30 inch eave we will do the energy
study etc. There are glazing treatments that we can do.
Brain asked the applicant his opinion between the last design and the new
proposal. John said he didn't feel the previous design was distracting from
Exhibit B
HPC Mmuics
3 iizzioe & an zioe
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 12.2009
leased out to satisfy parking needs that other buildings are not getting
downtown. Bill also suggested there be a consistency of styles.
Les Holst said he likes modernism. There is a certain rhythm that has to be
held to. The design almost looks like there are eight different glazing
patterns. There is a lot of glazing on the top and different patterns and it is
too much and it violates the rhythm of the streets all around it.
Toni Kronberg said she was one of the individuals at the public hearing to
ask that this project be reconsidered. My anticipation was that it would stay
within the scale and character of the existing commercial district that is
currently there. I don't see that happening with this building. In the
guidelines it says the purpose of commercial design review is to preserve
and foster a proper commercial district scale and character. This building is
out of scale to what is surrounding it. What is across the street is not the
Andre's bldg, it is the Paradise bakery building. The Paradise building was
given approval based on the scale of the Bidwell bldg. This comer is very
prominent and Aspen is not known for a commercial downtown urban
building. I really think a vote is necessary on this by the general public.
The third story changes the entire character of the corner. Aspen is losing its
character that it is known for. The recommendation that I had was that the
courtyard be kept open and the third story is not appropriate for that corner.
Maybe the applicant can work with staff to do TDR's. Why are we going
through an historic review when there is nothing being preserved there?
Chairperson, Michael Hoffman closed the public input portion of the agenda
item.
Sara recommended that HPC use the dimensions that were in the packet
because some of the buildings mentioned by the public are conflicting. Sara
also pointed out that TDR's are not available for non-landmarks. This
building is in the historic district and that is why HPC is reviewing it but it is
not a designated landmark. This property was before HPC for designation
and HPC denied it and City Council upheld that decision.
Michael said at the last meeting we only had concerns with the modules and
the eaves.
Ann said the new design of the eaves is an improvement from the original
plan presented. Ann thanked the architects for listening to the board's
5
Exhibit B
HPC Minutes
7/22/09 & S/12/09
ASPEN HISTORIC PRESERVATION COMMISSION
MINU'T'ES OF AUGUST 12, 2009
line or point when the windows go too far for this district? Guideline 13.17
maintain the distinction between the street level and the upper floor and
13.18 maintain the repetition of similar shapes and details along the block.
In terms of the modularity it is great. I'm only concerned about the
fenestration.
Brian pointed out for the public and the record that people have problems
with the three story in this location; however, this is one of the most
prominent street corners in the entire town and there are places where third
stories are appropriate and this is one of them because it actually adds to the
vitality of that section which is essentially the center of town. Given the fact
that the applicant is under the height limit this proposal is appropriate.
MOTION: Ann moved to approve resolution #I Sas written for 434 E.
Cooper Avenue; motion second by ,lay.
Jay pointed out that the building is sited very well and the way the corner
was worked out is a huge benefit to the community because the design
didn't' have to be this way. The fact that you are under the code is another
public benefit. Jay thanked the applicant for being sensitive and not
maximumizing.
Brian also commented that the perspectives submitted were some of the best
that have been presented to the HPC.
All in favor, motion carried 4-0.
630 E. Hyman Ave. -Patio Building -work session - no minutes
Jim True, Special Counsel stated that work sessions are non-binding. A
work session is designed to get information and opinions. No opinion
expressed can bind any member or the HPC itself. The applicant should
acknowledge that they should not rely on individual member or the I-IPC
comments entirely.
MOTION: Jay moved to adjourn; second by Michael. All in favor, motion
carr' d.
Kathie n J. Strickland, Chief Deputy Clerk
Exhibit B
HPC Minutes
722/09 & 8/12/09
APPROVING ANFAPPL CA ION OR MAJOR DEVELOPM NT (I OINCEPTUAL)>
VIEWPLANE REVIEW, AND COMMERICAL DESIGN REVIEW FOR THE
PROPERTY L089 CITY AND TOWNSITE OF SPENECO LORADO. AND S, BLOCK
RESOLUTION NO. 18, SERIES OF 2009
PARCEL ID: 2737-182-16-001
WHEREAS, the applicant, Bidwell Investment Corporation, represented by Mitch Haas of Haas
Land Planning, LLC; Klein, Cote & Edwards, P.C., and Rowland + Broughton Architecture and
Urban Design requested that Aspen City Council reconsider the subdivision application For the
property located at 434 East Cooper Avenue, Lots Q, R and S, Block 89, City and Townsite of
Aspen, Colorado; and
WHEREAS, Aspen City Council approved reconsideration of the application for subdivision for
the subject property and remanded Commercial Design Standard Review, Historic Preservation
Major Development Conceptual Review and Viewplane Exemption Review back to the Historic
Preservation Commission; and
WHEREAS, the Community Development Director determined that the application is governed
under the Aspen Land Use Code in effect in March 2006; and
WHEREAS, pursuant to Section 26.304.060(B)(1) of the Municipal Code, the Community
Development Director has approved a combined review to enable HPC review of the applicant's
viewplane and commercial design review requests with major development (conceptual) finding
that such combination will eliminate or reduce duplication and ensure economy of time, expense
and clarity; and
WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structure
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
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
26.415,07U.D.3.b.2 and 3 of the Municipal Code and other applicable Code Shoation to obtain
may approve, disapprove, approve with conditions or continue the app
additional information necessary to make a decision to approve or deny; and
RECEPTION#: 563656, 10/15!2009 at HpC Resolution No. 18, Series of 2009
10:45:06 AM, 434 East Cooper Street
1 of 3, R 516.00 Doc Code RESOLUTION page 1 of 3
Janice K. Vos Caudill, Pitkin County, CO Enhibit C
WHEREAS, pursuant to Section 26.304.060(8)(1) of the Municipal Code, the Community
Development Director has approved a combined review to enable HPC review of the applicant's
viewplane and commercial design review requests with major development (conceptual) finding
that such combination will eliminate or reduce duplication and ensure economy of time, expense
and clarity; and
WHEREAS, for View Plane 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 Municipal
Code Section 26.435.050, Mountain View Plane Review. 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. The HPC hereby finds that impact on the viewplane is
minimal; and
WHEREAS, for approval of Commercial Design Review, HPC must review the application, a
staff analysis report and the evidence presented at a hearing to determine, per Section 26.4(2 of
the Municipal Code, that the project conforms to the following criteria:
]. The proposed development meets the requirements of Sec[ion 26.412.060, Commercial
Design Standazds or any deviation from the Standazds provides amore-appealing pattern
of development considering the context in which the development is proposed and the
purpose of the particular standard. Unique site constraints can justify a deviation from
the Standards. Compliance with Section 26.412.070, Suggested Design Elements, is not
required but may be used to justify a deviation from the Standards.
2. For proposed development converting an existing structure to commercial use, the
proposed development meets the requirements of Section 26.412.060, Commercial
Design Standards, to the greatest extent practical. Amendments to the fapade of the
building may be required to comply with this section.
3. For properties listed on the Inventory of Historic Sites and Structures or located within a
Historic District, the proposed development has received Conceptual Development Plan
approval from the Historic Preservation Commission, pursuant to Chapter 26.415. This
criterion shall not apply if the development activity does not require review by the
Historic Preservation Commission; and
WHEREAS, Sara Adams, in her staff report dated July 22, 2009 and August 12, 2009,
performed an analysis of the application based on the standards, found that the review standards
and the "City of Aspen Historic Preservation Design Guidelines have been met, and
recommended approval; and
WHEREAS, during a duly noticed public hearing on July 22, 2009 continued to August 12, 2009,
the Historic Preservation Commission considered the application, found the application was
consistent with the applicable review standards and "City of Aspen Historic Preservation Da the
Guidelines," found a minimal impact on the Wheeler Opera House viewplane, and app
application by a vote of four to zero (4 - U J
HPC Resolution No. 18, Series of 2009
434 East Cooper Street
Page 2 of 3
F.xhibi~ C
NOW, THEREFORE, BE IT RESOLVED:
That HPC hereby approves Major Development (Conceptual), View Plane Review, and
Commercial Design Review for the property located at 434 East Cooper Avenue, Lot Q, R & S,
Block 89, City and Townsite of Aspen, Colorado, as proposed and illustrated in Exhibit A, with
the following conditions;
1. The applicant will continue to study the storefront fenestration heights to better relate to
the historic context and the impact of raising the storefront height on the overall height of
the building for discussion and approval during Final Review.
2. A development application for a Final Development Plan shall be submitted within one
(1) year of the date of approval of a Conceptual Development Plan. Failwe 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.
APPROVED BY THE COMMISSION at its regular eting o the 12th y pf August,
2009.
HPC Chair
Approved as to Form:
im True, Special Counsel
ATTEST:
Kath~ ickland, Chief Deputy Clerk
HPC Resolution No. 18, 5cries of 2009
434 East Cooper Street
Page 3 of 3
Fshibit C
z
Minutes 2
Declarations of Conflicts of Interest 2
434 E Cooper
Exhibit D
P 8 Z minutes
8/15109
Reeular Meetin¢ Aspen Plannine and Zonine Commission September 15.2009
LJ Erspamer opened the regular Planning and Zoning Commission meeting in Sister
Cities Meeting Room at 4:30 pm. Commissioners Stan Gibbs, Brian Speck, Bert Myrin,
Cliff Weiss, Jim DeFrancia and LJ Erspamer were present. Michael Wampler was
excused. Staff in attendance were Jim True, Special Counsel; Sara Adams, Chris
Bendon, Community Development and Jackie Lothian, Deputy City Clerk.
MINUTES
MOTION: Bert Myrin moved to approve the minutes from the joint City P&Z and HPC
Meetings on July 21, 2009 and August 04, 2009 with amendments to the minutes of
August 04, 2009 on page IZ by L.I Erspamer for the study of the highest activity of the
year and the highest day of the year from the National Institute of Transportation;
seconded by Brian Speck. All in favor, APPROVED.
DECLARATIONS OF CONFLICT OF INTEREST
None stated.
PUBLIC HEARING:
434 ECooper -Mountain Plaza/Bidwell Growth Management
LJ Erspamer opened the public hearing 434 East Cooper. The notices were provided to
Jim True and accepted. Sara Adams said that the hearing before the Planning & Zoning
Commission was for 434 East Cooper also known as the Bidwell Building and Mountain
Plaza Building. Adams stated that P&Z was asked to review is Growth Management
Review for a new commercial development. Adams noted the project has been going on
for a little while; in 2007 HPC granted major conceptual review because this is in the
historic district. HPC granted a view plane exemption review and commercial design
standard review. P&Z granted Growth Management approvals for new commercial, for
free market residential and also for new affordable housing. P&Z also recommended
subdivision approval to City Council. Adams said that City Council denied the
subdivision approval; the applicant redesigned that project and requested Council to
reconsider the project. Council decided that it was appropriate to reconsider the
application and remanded the review of the new design back to HPC because there were
major changes to the building.
Adams said there were changes to the amount of commercial space in the building and
the approvals that P&Z made in 2007 remain valid; subdivision recommendation to City
Council is still valid. Adams said the Growth Management Review, Affordable Housing
Review, Free Market Residential and portion of the Commercial are all still valid.
Adams said since they added some new commercial they needed to come back to P&Z
and then they will travel back to City Council for subdivision.
Exhibit D
P & Z minutes
8115/09
2
Adams said that it was 203 square feet over on the commercial space. The existing
commercial credit (the existing building was just commercial with no residential); the
applicant was proposing was 203 square feet over the existing credit for new net leasable.
Adams said that in calculating employee generation the proposal is not required to
mitigate for the employees generated by the new net leasable because the total net
leasable area that is proposed generates the same number of employees that is generated
right now.
Adams said that in terms of the AACP and review criteria listed in Exhibit A; staff finds
that the proposal remains consistent with the AACP and applicable review standards and
they are recommending approval.
Chris Bendon said there was one change to the resolution in section 4 and proposed this
language be stricken because his concern was that they were responsible for enforcing the
rules set out for folks and creating a clear set of expectations and reinforcing the laws and
reinforcing that rule of law. Bendon said the second concern was whether or not this was
a problem with pedestrian impacts on this corner. Bendon said that he was surprised this
did not say that the construction has got to observe pedestrian patterns and safety.
Bendon recommended striking this last section that deals with traffic analysis.
Mitch Haas said that was okay with them and they were planning on dealing with the
construction management plan; transportation studies all done at the appropriate time
when it has to be done.
Cliff Weiss agreed with the pedestrian study but asked what was actually called for
because P&Z has asked for traffic studies for a number of other applications. Bendon
replied the applications that staff sees are typically PUDs that are large projects where
there was significant circulation of traffic impacts but the code predicts and expects that
the applicant will have to address that issue; this is not that kind of case. Bendon said
that the road will not exceed its capacity but it is the quality of service for pedestrian
infrastructure. Bendon said the study asks how that effects pedestrian movements and
does that relate to infrastructure that this project will install.
LJ Erspamer asked if there was any traffic or pedestrian movement in the 2005 code.
Cliff Weiss asked how you measure the quality of service.
Weiss said there was 12,081 square feet of commercial space and that required 41.9
FTEs; how does not adding the 203 more square feet have any effect. Adams replied the
way employee generation was calculated has to do with not only square footage but also
where the commercial space is located and the other 25% reduction for spaces that are on
upper floors or in the basement and what the redesign did was added a whole floohlba o
P 8 Z minutes
8115/09 3
Reeular Meetin¢ Aspen Plannine and Zonine Commission September 15.2009
subgrade in addition to the subgrade garage. Weiss asked why there was a 25% reduction
even if it is subgrade. Bendon responded that the city did a survey of downtown
businesses and all of the FTE counts by season, by type of use and all these different
parameters and one of the parameters was where was it located in the building. Bendon
said the ground floor was more intensive and the other floors tend to be less intensive
types of commercial. Bendon said also it was not to discourage basement and second
floor commercial.
Bert Myrin asked how this construction would be staged. Adams answered they will be
required to have an approved construction management plan through the engineering
department. Bendon said there were certain provisions for working downtown and how
you occupy public parking spaces. Myrin noted that City Council had concerns about
height, mass and scale; did they have any concerns that they expressed that were not
addressed inthis re-submittal. Adams replied that HPC found that the concerns were met
in the design, which deals with the height, mass and scale. Adams said there was more
public amenity space provided on site. Adams said having a higher LEED certification
the project will be bumped up for priority for scheduling for a public hearing.
LJ Erspamer asked if the traffic study could be removed from the resolution.
Mitch Haas said the LEED has a complicated scoring system; they will go for gold or
platinum if they can get there so they volunteered for silver, Haas said the current
structure was built in 1965 and is currently office and retail with no residential and the
building currently is not handicap accessible. Haas said that currently there were only 3
parking spaces on the property, which is a deficit of 9 parking spaces.
Mitch Haas and Dana presented a power point presentation. Haas showed a view from
the Paradise Bakery with general impacts on the views with a shadow of the former HPC
approval; this was a telling slide that tells how drastic the project has changed from then
until now. The new construction will be steel with a mix of office, retail and residential
with free market and affordable integrated. The net leasable goes up to 12,284 square
feet, which is an increase of 203 square feet and the majority of the increase occurs on the
second floor and in the basement so the first floor shrunk. Haas said that there have been
smaller retail spaces. Weiss said the P&Z was to review a GMQS and there is a lot of
information that has nothing to do with GMQS. Haas said the Growth Management
Review standards are 4.1 employees per 1,000 net leasable square feet on the ground
level; any other floor second or higher or lower than the ground level is mitigated at 75%
of that number or 3.875 employees per 1,000 square feet. There was a pedestrian
amenity space on the main level. The commercial space does not generate employee
generation mitigation at all. Haas said the free market units were at 9,000 square feet and
has now come down to 5,078 square feet. Haas said the affordable units were qualit~
Exhi it D
P & Z minutes
8115/09
4
Re ular Meeting Aspen Plannin¢ and Zonina Commission September 15.2009
units. LJ Erspamer said the units were rental units. Haas replied the renal came from the
housing office through a lottery and there were safeguards built in to insure that in terms
of paying the HOA dues. Haas said the Growth Management Review process was simple
and the applicant had no issues with the recommended conditions of approval or the
memo.
Cliff Weiss asked why the affordable housing was a studio and the same size as the other
2. Haas replied that the studio was a free market unit.
Stan Gibbs asked the differences between the current building, the new project and this
new revision and how the affordable housing works to make sure the mitigation that was
required was for in the previous opinion; in the existing building there is no affordable.
Adams responded that the affordable housing inversion one was mitigating for the new
free market residences since there was no free market residential in the existing but there
was a credit for the commercial space because it is existing. Adams said in version 2 the
number of units has been reduced because the amount of free market residential units has
been reduced; it was a product of reducing the whole bulk of the building.
Myrin asked if the air conditioning units in the alley would remain or would they be on
the roof. Haas replied that the air conditioning would end up in the subgrade mechanical
room; the rooftop of this building would be green roof and solar panels depending on
how it next works out. Myrin asked if the free market units would be sold. Haas replied
that they would be sold and condominimized; the owners hoped to retain the ownership
of everything else. Myrin asked to amend and add on page 6 the fourth WHEREAS in the
third sentence after the add "proposed amendments". Myrin asked if there was employee
parking on site. Haas replied there were 10 spaces on site and they haven't figured out
the parking.
Erspamer asked if parking were an issue for GMQS. Haas replied the employee parking
would be but the code doesn't require parking in this location in the Core whether it is
free market or affordable residential. Erspamer asked for a rendering of the alley with a
south view.
Weiss asked if this GMQS was final. Adams replied that it is and next it would go to
Council for subdivision and back to HPC for final historic review for a new building in a
historic district.
Erspamer opened the public comments section and requested the public keep the
comments to 3 minutes and relevant to the P&Z hearing.
Exhibit D
P 8 Z minutes
8/15/09
5
Reeular Meetine Aspen Plannin¢ and Zonine Commission September 15, 2009
Public Comments:
1. Terry Butler stated that she was a direct neighbor to the project who lived and
worked there. Butler said that each meeting was so narrow what the commissions
were discussing that she could not bring forward what the neighborhood feels like.
Butler said that she went to every business in the neighborhood and has been
unable to find anyone who is for this project and we need to take into account the
neighbors and downtown business that will be affected by this for 3 or 4 years.
Butler said that no one is for the tearing down of this building and the rebuilding of
it. Butler said the alley was 1 /3 of a block.
2. Junee Kirk reminded the P&Z that this came back for reconsideration based on the
objections that the public has made over the past and those objections haven't been
resolved. Kirk said this was the most important square in Aspen where the public
amenity has been reduced and should be at least 25% like what exists at Paradise
Bakery so they we maintain the openness and public amenity and keep this a
vibrant area and not close it in. Kirk said that she requested an elevation of Cooper
Street to fit in with the scale and mass of that street.
3. Toni Kronberg said that when the application first came to City Council she was
not in support of it because of the mass and scale and how it did not retain the
historic character of that project. Kronberg stated that she was disappointed in
what was brought forth because of the height and mass and scale. Kronberg said
that she echoed Terry Butler on the long term impacts on the downtown core.
Kronberg said that if this passed at Council they would take a referendum on it so
people have the opportunity to vote yea or no on it.
4. Paul Charate said that he was an interested in the project from New Zealand.
MOTION: Jim DeFrancia moved the approval of Resolution 14, 2009 approving with
conditions Growth Management Review for the new commercial space for the property
located at 434 E Cooper including Bert's changes and deleting section 4; Bert Myrin
seconded. Motion remade.
Discussion: Chris Bendon asked if that included the changes as discussed. Cliff Weiss
said that this came before P&Z 2 years ago and P&Z has had little to say about design,
construction or any of the things that concerned the public and P&Z has had limited
purview over this project. Weiss said those concerns needed to be addressed to other
Commissions and Council. Bert Myrin asked if this motion included the changes in the
WHEREAS that he raised as well about it being the proposed amendment meet or
exceed. Myrin explained that P&Z does not have the chance to change this project.
Myrin asked about the employee parking. The code did not require employee parking.
LJ Erspamer said to make this contingent on the approval that the City Engineer removes
Section 4 from the Resolution. Jim DeFrancia said that Engineering was a referral
agency and should remove that section. Jim True stated that it was P&Z's authoriE n~ni°o
P & Z minutes
B/15I09
6
Regular Meeting Aspen Planning and Zoning Commission September 15.2009
remove or change the recommendation. Bendon said that if he had seen it before he left
the office he would have stricken it before he left the office. Erspamer said he was
against planting trees evenly spaced. Haas replied that Parks during the building permit
time would make them deal with it. Stan Gibbs asked why all the sections were in the
resolution if they did not pertain to the review. Adams said that the sections mirrored the
previous growth management approvals and for affordable housing previously and they
still apply to the additional 203 square feet that you are reviewing tonight. Bendon said
that they put in all of the sections because it was easier to have them in than be worried
about them. Erspamer said that intersection was the busiest intersection.
Erspamer proposed to include the traffic analysis statement in the proposal. Jim
DeFrancia amended the motion.
MOTION: Jim DeFrancia moved the approval of Resolution 14, 2009 approving with
conditions Growth Management Review for the new commercial space for the property
located at 434 E Cooper; Bert Myrin seconded. Roll call vote: 4 in favor and 2 oppose
(Weiss and Gibbs).
MOTION: Bert Myrin moved to remove section 10; Stan Gibbs seconded. Roll call
vote: Speck, yes; Gibbs, yes; Weiss, yes; DeFrancia, yes; Myrin, Erspamer, yes.
APPROVED 6-0.
The commissioners discussed code changes for below grade spaces, parking deficit, zero
requirement for downtown units, double dipping for commercial, residential and
affordable housing.
P&Z adjourned at 6:30 pm.
ackie Lothian, Deputy City Clerk
Exhibit D
P & Z minutes
8115/09
Resolution No. 14
(SERIES OF 2009)
A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION
APPROVING GROWTH MANAGEMENT REVIEW FOR NEW COMMERICAL
DEVELOPMENT THAT IS PART OF A MIXED-USE DEVELOPMENT
CONTAINING FREE MARKET RESIDENTIAL, AFFORDABLE HOUSING AND
COMMERCIAL NET LEASBLE AREA KNOWN AS MOUNTAIN PLAZA
BUILDING AND LOCATED AT 434 E. COOPER AVENUE, CITY OF ASPEN,
PITKIN COUNTY, COLORADO.
Parcel No.2737-182-16-011
WHEREAS, the Community Development Department received an application
from all of the Bert Bidwell Investment Corporation requesting Growth Management
Review approval to develop new commercial net leasable area as part of a new mixed-use
development known as the Mountain Plaza Building located at 434 E. Cooper Avenue;
and,
WHEREAS, the Planning and Zoning Commission granted Growth Management
approval for aMixed-Use Building which contains 10,585 sq. ft. of net leasable area,
approval for the development of three (3) free-market residential units totaling a Floor
Area Ratio of .82:1 or 7,392 sq. ft. and individual net livable area of 2,000 sq. ft. each,
and approval for the development of three (3) affordable housing units with a total of
2,241 sq. ft. of net livable area via Resolution No. 26, Series of 2007; and,
WHEREAS, the Applicant has revised the Mixed Use Building to contain three
(3) free-market residential units totaling a Floor Area Ratio of .564:1 or 5,078 sq. fr. and
individual net livable azeas of 600 sq. ft.; 1,400 sq. fr.; and 2,000 sq. ft., and to contain
two (2) affordable housing units with a total of 1,200 sq. ft. of net livable azea and
individual net livable azeas of 600 sq. fr. each; and,
WHEREAS, the Growth Management approvals and conditions of approval for
the free-market residential units and affordable housing units and the recommendation of
approval for Subdivision review, pursuant to Resolution No. 26, Series of 2007 remain
valid; and,
WHEREAS, the application is governed under the Land Use Code in effect in
March 2006; however the applicant requested that the Growth Management review be
2007uand the annual allotmelnt foacommer~al developmentObetdeductedofrom the~2007
pool; and,
WHEREAS, prior to applying fvr the Growth Management review for new
commercial development the Applicant received Conceptual Design Review and
P & 7, Resolution #14, Series 2009
RECEPTION#: 562834, 09/17/2D09 at 434 Cooper Street, GMQS Commercial
09:44:06 AM, Page 1 of 4
1 OF 4, R $21.00 Doc Code RESOLUTION exhibit e
Janice K. Vos Caudill, Pitkin County, CO
Commercial Design Standard Review from the Historic Preservation Commission via
Resolution No. 18, Series of 2009; and,
WHEREAS, the Growth Management review is for approval of the commercial
component of a Mixed-Use Building which contains 12,284 sq. ft. of net leasable area, of
which 203 sq. ft. of net leasable area is newly created and beyond the net leasable
commercial credit for the existing building; and
WHEREAS, upon review of the application and the applicable code standards,
the Community Development Department recommended approval of the Growth
Management Review request; and,
WHEREAS, the Planning and Zoning Commission reviewed and considered the
development proposal under the applicable provisions of the Municipal Code as identified
herein, has reviewed and considered the recommendation of the Community Development
Director, and has taken and considered public comment at a duly noticed public hearing on
September 15, 2009; and,
WHEREAS, the City of Aspen Planning and Zoning Commission finds that the
proposed amendment meets or exceeds all applicable development standards and that the
approval and recommendation of approval of the lanpl~e azre1gd ests is consistent with the
goals and objectives of the Aspen Area Community
WHEREAS, the Planning and Zoning Commission grants approval of the
Growth Management Review request for the commercial component of a mixed
development that contains 12,284 sq. ft. of net leasable azea by a vote of six to zero (6-0);
and,
WHEREAS, the City of Aspen Planning and Zoning Commission finds that this
Resolution furthers and is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING
AND ZONING COMMISSION AS FOLLOWS:
Section 1:
Pursuant to the procedures and standazds set forth in Title 26 of the Aspen Municipal
Code, the Planning and Zoning Commission hereby approves Growth Management
Review for Expansion or New Commercial Development for the development of a
mixed-use building containing a commercial component with a maximum of 12,284 sq.
ft. of net leasable azea as shown in the floor plans of application dated September I5,
2009.
Section 2: Plannin ana Gomo noeo......... •,~ -- ----
The Growlh Management review approvals and conditions for Free Market Residential
Units and Affordable Housing, and the recommendation of Subdivision approval to City
Council pursuant to Resolution 26, Series of 2007 remain valid.
P & Z Resolution #14, Series 2009
434 Cooper Street, GMQS Commercial
Page 2 of 4
Exhibit E
Section 3: building
The Applicant shall meet adopted building codes and requirements if and when a
building permit is submitted. Additionally, as represented in the growth management and
subdivision application dated August 15, 2007, the Applicant will attain, at a minimum, a
LEED Silver Certification.
Section 4: Engineering
The Applicant's 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. The project must comply with CMP requirements at the time
of permit. A drainage plan must be submitted and must comply with Engineering
Department requirements. A traffic analysis to show the impacts in the area, specifically
the quality of service impacts to the Cooper/Galena intersection and the sidewalklalley
intersection in the northeast comer of the property, must be submitted prior to the
Subdivision Review at City Council. Of particular concern is quality of service impacts to
the Cooper/Galena intersection and to the sidewalk as it crosses the alley on the east side
of the building.
Section 5• Fire Mitigation
All codes adopted by the Aspen Fire Protection District shall be met. fhis 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: Pablic 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.
Each of the units within the building shall have individual water meters.
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. Oil and Grease interceptors (not
traps) are required for all food processing establishments and shall be identified and
specified prior to building permit. Oil and sand separators are required for the pazking
garage. Old service lines must be excavated and properly abandoned.
Section 8: Environmental Health
The state of Colorado mandates specific mitigation requirements with regard 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.
P & Z Resolution #14, Series 2009
434 Cooper Street, GMQS Commercial
Page 3 of 4
Exhibit E
Section 9• Exterior Liehtina
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:
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 Ylazming and Zoning Commission or City Council, are
hereby incorporated in such plan development approvals and the same shall be complied
with as if fully set forth herein, unless amended by an authorized entity.
Section 11:
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 12:
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•sepazate, distinct and independent provision and shall not affect
the validity of the remaining portions thereof.
APPROVED BY the Planning and Zoning Commission o`e C A on this 15'"
day of September, 2009.
G~-^~'
LJ Erspamer
Planning Zoning Commission Chair
APPROVED AS TO FORM:
James R True, Special Counsel
ATTEST:
ckie Lothian, Deputy City Clerk
P & Z Resolution #14, Series 2009
434 Cooper Street, GMQS Commercial
Page 4 of 4
Exhibit E
Reeular Meetia¢ Asoen Citv Council Mav 27, 2008
Guthrie noted this code amendment removes the restriction t DRs cannot be
lande n designated properties; it only allows expanded unit .The TDR program is
to remove velopment pressure from the historic landmar properties. This does not
increase the o all FAR but allows one element of the ilding to be bigger. It allows
flexibility in how ch in a structure can be comme tal, residential, other uses without
changing the overall R cap. Councilman Ska n requested a diagram for second
reading. Councilman Jo son asked for som~'examples of historic properties that might
be affected as potential lan ' g sites and sp~narios for redevelopment
Councilman DeVilbiss moved to r8~d"Ordinance #16, Series of 2008; seconded by
Councilman Romero. All in favgt; rr~tgtion carried.
~ .
~ ORD NCE #16
/ Series o 008
AN ORDINANC F THE CITY COUNCIL OF E CITY OF ASPEN,
COLORADO, ENDING SECTION 26.535 OFT ASPEN MUNICIPAL CODE,
TRANSFE LE DEVELOPMENT RIGHTS
n DeVilbiss moved to adopt Ordinance #16, on first reading; seconded by
n Romero. Roll call vote; Councilmembers Johnson, yes; Skadron, yes;
yes; Romero, yes; Mayor Ireland, yes. Motion carried.
ORDINANCE #1, SERIES OF 2008 -Subdivision Approva1434 East Cooper (Bidwell
Building)
Mayor Ireland said at the last public hearing, receiving a-mails about this project and the
distribution of those a-mails was an issue. Since then a-mails have been forwarded to
each Councilperson, to the applicant and to the public record.
Mitch Haas, representing the applicant, told Council the applicants have worked toward
addressing the concerns raised. The affordable housing rentals units will be available to
the community at lazge through the housing authority. The affordable housing units have
each been allocated one on-site pazking space. The rooftop deck is being made available
to all residential units. Haas noted a condition has been added to make sure the quality of
building materials will not be compromised through the process. There is a condition to
address the HOA dues and assessments between the affordable and the free market units.
Haas noted they have received copies of e-mails, mostly in opposition to the project.
Haas reminded Council this project has been more than 2 years in the review process,
including more than a dozen public hearings. These hearings include review of
demolition of the existing building at HPC, which decision was called up to Council for
hearings to reconsider that decision. There were hearings at Council to designate the
property as a historic landmazk, which HPC recommended against. This decision went to
Council, who also voted to not landmazk the property. There were conceptual design,
view plane and commercial design at HPC, all meetings publicly noticed. HPC voted to
F.xhibi~ F
Clry Council minutes
siz~iox
6
Reeular Meetine Asaea City Council Mav 27.2008
approve this design. There were public hearings at P&Z on growth management, which
P&Z approved and subdivision, which P&Z also approved.
Haas said it is incorrect to chazacterize the project developers as self-interested and
greedy. This was a sentiment in many of the e-mails. Haas noted this property has been
in the family of the developer for two generations. Haas said this developer put the
project together with a sense of civic responsibility. Haas pointed out this project is less
than allowed by zoning and includes more affordable housing than is required and the
project will set the bar for green building in Aspen.
John Rowland, architect, showed Council existing site plan showing the existing building
outlined in red. Rowland pointed out the wall that comes to the comer of the property;
there is a colonnade illegally in the right-of--way. This colonnade will be removed, which
will make the sidewalk lazger. Rowland said their design meets bout the commercial
design and the historic design guidelines. Rowland said this building has a dialogue with
buildings on the other comers. Rowland said people at the Volk building look at the
mountain, not down the mall which is obscured by trees. Rowland said urban planners
talk about 1 to 1 ratio, which is the height to the length of the street. Town planners say
the range of the great streets fall in the range of 1 to 1.1 to 1 to 2.4; this proposed building
is a 1 to 1.8; the height is 1 and the distance across the street is 1.8. Rowland noted some
town planners state town squazes should not be too big lest they become dead zones and
35 to 45 feet is the ideal width of a town squaze. This squaze is 74' and 280', which is a
big civic space.
Rowland said they did solar studies for the winter and for the summer. Rowland passed
azound a boazd showing the results of these studies and until 4 p.m. there will not be a
shadow on the Volk Property. Haas brought up compatibility of this building in the
historic context and neighboring buildings. Haas reiterated this is what HPC review is
about and they focused on consistency with the adopted guidelines for design in the
commercial core historic district. Haas said there were at least two public hearings, at
which HPC found this project compatible with the azea, with surrounding buildings and
with the design guidelines and unanimously approved Resolution #20, 2007.
Haas stated this project is consistent with the preponderance of the AACP goals and
objectives. Haas told Council both HPC and P&Z found that this project is consistent
with the goals of the AACP and is fully consistent with the zoning. The HPC design
guidelines and review standards were adopted pursuant to the AACP and this project
received a unanimous vote of consistency with those standards.
Haas said this is a great project and this is not the location for anon-descript building.
This project is worthy of Aspen and of this location. This project is under the allowable
height and under the allowable floor azea and under the allowable free market residential
floor area. The project is over in off-street pazking and in affordable housing. This
project will improve the function of the alley. The project will provide a LEEDS silver
or better certified development. This project is consistent with the Aspen Area
Community Plan and with the growth management quota system and subdivision review
Exh~nn r
City Council minutes
527/08
Reeular Meetine Aspen Ciri Council May 27.2008
standazds. Haas told Council the US Department of Energy states 35% of greenhouse
gases emitted from the US come from the operation of commercial and residential
buildings and only 28% from transportation. Haas said the bigger bang for the buck in
energy savings is replacement of inefficient old buildings. Haas said this new building
will be at ]east 68% more efficient than the existing structure and will reduce green house
gas emissions.
Haas said this centrally located development will contain high quality affordable housing
with reduced need for automobile usage. Haas said there is no pedestrian amenity space
in this project. The existing pedestrian amenity space is less than 3% meeting the city's
standards. The code recognizes payment ofcash-in-lieu. The issue was discussed at
length at P&Z, should the building be setback or come forwazd to meet the street. The
HPC decided it is important and consistent with their design guidelines to have the
building front the street and that open space next to open space is not needed. Pedestrian
seating azeas or balcony seating behind that already existing on the mall did not need to
be created. Haas noted there are no designated view planes from the Pazadise Bakery
plaza; however, these views will be maintained. One can still see Aspen mountain and
views down the mall do not exist because of the trees.
Haas said the existing building has walls that front the mall and do not allow pedestrians
on the property. The proposed design will provide street front windows to look at. Haas
reiterated this project is fully consistent with the subdivision review standazds. Haas said
the general requirements of subdivision are consistency with the AACP, which has been
found to be the case by staff, by P&Z and by HPC and by the housing boazd
recommendation. This subdivision is consistent with the character and existing land uses
in the'azea. The proposed subdivision does not adversely affect the future development
of the surrounding area, which was a finding of P&Z. Haas said this project is in
compliance with all requirements of the code. Haas said the only question is whether the
proposed subdivision is designed to create spatial patterns that cause inefficiencies,
duplication or premature extension of public facilities and unnecessary public costs.
Haas said supplying more than 100% of the affordable housing requirements attributable
to the free market component addresses the public costs. There is no affordable housing
requirement attributable to the commercial requirement. There is no net employee
generation attributable to the net leasable area; there is a reduction in employees under
the code standards. Haas told Council the applicants used a very conservative ratio of
95% of all commercial space will be net leasable space; the industry standazd is 80 to
85%. The code gives a credit fur existing building's full time equivalent employee
generation, recognizing existing employees have no net effect or public costs associated
with them. Haas reiterated this building is consistent with all design review standazds in
the code.
Mayor Ireland opened the public hearing.
Junee Kirk put up elevation to demonstrate how the Mountain Plaza does not meet the
design guidelines of the commercial core and the historic district guidelines for the Aspen
Area Community Plan. Ms. Kirk quoted from page 88 of the guidelines stating new
fzhibit F
Ciry Council minutes
5/27/08
Reeular Meetiue Aspen Citv Council Mav 27, 2008
development shall stay within the range of building height, the scale and the form of a
new building shall be designed to safeguard the setting of a historic building whether it is
single story or large iconic 3-stories. Ms. Kirk said the Independence Building is 42'
high; the present Bidwell building is 26' and the proposed building is 41' high all the way
to the comer. Ms. Kirk said that is not in compliance with the scale of the Cooper Street
Mall where the average street scale is 15'. Ms. Kirk said the size and mass of the new
building competes with the existing historic buildings; it does not complement them. Ms.
Kirk said the design of the Mountain Plaza building takes away an important pedestrian
amenity which has been there since 1965. Ms. Kirk said the design guidelines say new
buildings should accommodate outdoor patio spaces where they respect the historic
context. Ms. Kirk urged Council to vote against this project; this will ruin the town. This
project does not agree with the AACP.
Carlos Zaldivar said Aspen's great amenities aze its open urban spaces. Zaldivaz
reminded Council staff conducted a survey on people's favorite spaces which showed this
space is one of the favorite open squazes in Aspen. Zaldivar presented an exhibit site
plan with red indicating the squaze, blue with the proposed buildings and green the
existing building. Zaldivar noted the proposed building will make the squaze smaller and
the open space public amenity will disappeaz. Zaldivaz also presented renderings to
show how the view will turn into a red brick wall. Zaldivar said keeping the public
amenity is very important. Zaldivar suggested moving the building back to retain some
of the open space.
Terry Butler told Council she lives right next door to this proposed site and will be the
most affected neighbor as most of the other businesses are retail. Ms. Butler said the
construction period will affect two of her lazgest hotel suites. Ms. Butler noted the Red
Onion alley has always had a bad ice build up problem from the shadow cast by this
building. Ms. Butler said 3 of her hotel rooms on the alley look up over the existing
building to Aspen Mountain and guests request those rooms for the view. The view will
betaken away with the new building. Ms. Butler said she will need some serious
construction mitigation and/or compensation for loss of business. Ms. Butler said enough
big, square building have been built in town already.
Andrew Kole said he does not like this building as the opportunity existed to do
something much better. Kole said one-story with a rooftop restaurant and then stepped
back would have served the applicants better. Kole agreed the city should look at
financial mitigation for existing businesses during development of projects. Cliff Weiss
said after HPC approval for demolition, the project should have had design review by
P&Z. P&Z only reviewed and approved growth management. Weiss stated this building
does not bring anything to the community. Karen Day reminded Council of the give and
take review process with the then-Ritz in order to get part of the building low and have it
stepped in and out. Ms. Day said the height limitations engender a lot of flat roof
buildings with no relief in the crowns or in the setbacks.
Toni Kronberg said she circulated a petition and collected 79 signatures to get a sense of
people's feeling. Ms. Kronberg noted the applicant did not follow one of the tenets of the
Exhibit F
CIry Council minutes
5/27/08
9
Renular Meetlne Aspen City Council May 27. 2008
AACP, which is to outreach and to educate the public to see what they support. Ms.
Kronberg passed out review standazds, one of which is the application shall comply with
4 standards for review; consistent with Aspen Area Community Plan; consistent with
chazacter of existing land uses; not adversely affect future development; be in compliance
with all applicable requirements of the title. Ms. Kronberg said this project meets the
dimensional requirements because there are none; there is a height requirement.
Ms. Kronberg said this building is in a commercial historic district, not just commercial
review. Ms. Kronberg showed a picture of the building, the map of where the historic
district is, a blow up of the corner, a hand out of then and now showing in the 1800's this
was only a 2-story building with a height of 28'. Ms. Kronberg submitted the
photographs given to the applicant and I-IPC from Tatanaka. The first criteria is the
proposed development shall be consistent with the AACP. There will be too much traffic
with a pazking gazage in the alley. This is a pedestrian azea. Ms. Kronberg presented 24
photographs documenting the heavy pedestrian traffic on the comer. The AACP vision
statement says Aspen needs more get together places of public activities to encourage a
formal mix of a diverse population.
Ms. Kronberg said a standard is the proposed subdivision shall be consistent with the
chazacter of existing land uses. Ms. Kronberg listed what is permitted and the approval
process for the Volk building across the street. Ms. Kronberg noted that building was
designed with a plaza in mind, in scale with a 1st story. The approval process notes
preserving the solaz exposure and the orientation of the site are important. The Volk
project was approved in context with buildings already there. This is a historic district
and some of the adjacent properties are what Aspen is known for. Ms. Kronberg
concluded the project does not fit with the character of the historic district. Ms. Kronberg
stated this project does not fit with the character of the historic district; all buildings
azound it are 28'.
Phyllis Bronson said the AACP states that maintaining community character promotes a
standard of design that is of the highest quality compatible with the historic features of
the community. Ms. Bronson said the proposed building is not welcoming. This is a
beautiful building that does not belong on this comer. Ms. Bronson said attention has not
been paid to community input. Ms. Bronson noted Christopher Alexander stated that big
buildings out of context to their environment make people feel dissociative and not
included.
Roine St. Andre said she is against this building. Aspen is in an ecological crisis. Infill is
overkill. Ms. St. Andre said it is time to make the environment feasibility check. Ms. St.
Andre said it is time to get back to the sacred and away from the profane. James Anders,
Kemo Sabe, told Council he is a long term tenant of this building and they have watched
failures of other tenants in the building. Anders said the courtyard is an embarrassment
and it is not a plaza. The plaza at Paradise Bakery and will not be affected by this
building. Anders pointed out the Benedict overhang is an obstruction and it will be
removed with the new building. Anders said successful businesses to anchor the town
and to contribute sales tax is an amenity.
Exhibit F
City Council minutes
5/27/08
LO
Reeular Meetiue Aspen Citv Council Mav 27 2008
Wendy Perkins agreed the success of the existing business in the building has not been
great. Ms. Perkins said the proposed building is too much, too big, and too boxy. Ms.
Perkins stated this plan does not reflect the core values as indicated by the community at
last summer's meeting. Ms. Perkins said this design is not maintaining the heart and soul
of Aspen and the context of the other historic buildings.
Mayor Ireland closed the public hearing.
Jennifer Phelan, community development department, noted exhibit N is a-mails received
by noon and exhibit O aze those a-mails received after lunch. Mayor Ireland stated
Council is trying to make sure the applicant and public are able to see a-mails sent to
them.
Jody Edwards, representing the applicant, noted they have abided by the code; the code is
clear regarding height, scale and massing and proportions, this application has been
reviewed and approved by HPC. The code states Council is to look at whether the
subdivision is consistent with the Aspen Area Community Plan. Subdivision is a defined
term in the code and in this case it is condominiumization. The issue before Council is
subdivision. Haas noted there have been dozens of public hearings with very little input.
When there was public input, the applicant has responded to it. Haas said the applicants
have not been trying to do anything exclusionary. Haas stated it is difficult to respond
when all comments come in the day before the final meeting.
Councilman Skadron asked staff what space counts as pedestrian amenity or open space
on this pazcel. Ms. Phelan said under the current regulation, a public amenity space has
to meet certain criteria and one of these is that the public space be at Bade rather than
sunken. The code also outlines how much needs to be provided and when it needs to be
provided as physical open space. The sunken courtyard on this property does not meet
the definition of open space. There is less than 10% on this pazcel meeting the definition
and the then code allows cash-in-lieu for open space.
Councilman Skadron asked if this building has grown from 11,800 square feet [0 23,000
square feet. Haas said that is correct. Councilman Skadron noted the height is proposed
to go from 23' to 41'. Rowland said 41' is only ai one spot; across Cooper Avenue the
height is 39' and towards the alley it becomes 41'. Councilman Romero asked about the
design philosophy behind the placement of the outside decks. Rowland answered the
initial proposal was a full built out at the 3rd floor. HPC asked for a redesign and they
pushed the building back and added the decks. The center courtyard is to obtain LEED
points and to allow for proper day lighting.
Councilman Romero asked what kind of informal public sessions were conducted by the
applicant outside the formal city-required process. Rowland said the model was available
for viewing in their office at all time. Haas said outside the formal process, there were 2
work session with the HPC open to anyone.
Exhibit F
Ciry Council minutes
5/27/08
11
Regular Meetioe Aspen Ciri Council Mav 27, 2008
Councilman Romero said he appreciates the comment from the public about balance and
about looking at the project from all angles beyond scale and mass to meet other goals of
the AACP like economic vitality. Councilman Romero said he empathizes with the
neighbors about the short and long term impacts. Councilman Romero agreed with the
value of public outreach beyond the formal process and there aze examples in the city
where public outreach helps to communicate and connect with the community.
Councilman Romero noted the public comments point out the inconsistencies in the city's
land use code, and the inconsistency between the AACP, the goals of the historic
preservation code, the guiding principles and regulations around the zone districts and
growth management principles. Councilman Romero said the moratorium of several
years ago was an attempt to clean up some of those inconsistencies. Councilman Romero
said this application was applied for under a set of rules that pre-date the output of the
moratorium. Councilman Romero stated the rules that apply to the commercial core in
the nucleus of economic activity; the applicant provided a project that met the
overazching goals of the AACP. Councilman Romero agreed that this subdivision
conforms and complies with the AACP.
Councilman Romero said consistency with the character of the land uses in the azea, this
is a mixed use zone and will continue to be a mixed use zone. This project brings
additional uses, like affordable housing and retail. Councilman Romero said it will be
difficult and economically straining for the existing businesses. Councilman Romero
said he trusts the applicant will do its best efforts in the relocation and construction phase.
Councilman Romero said the proposed development shall not adversely affect the future
development of surrounding aeeas and the corners of this area have been built up and this
could be the last application on this comer. Councilman Romero said looking at this
project against the historic resources in this comer and the pedestrian zone and the
amenity spaces in the area, it is unfair to focus in on one perspective rather than a
complete system. Councilman Komero stated this does not create the demise of Aspen or
an impediment to pedestrian enjoyment. Councilman Romero said he does not like the
design of the building and agrees it could be setback from the street; however, it does not
affect the future development of surrounding areas in a meaningful way. Councilman
Romero said [he subdivision is compliant with all regulations of the land use code.
Councilman Romero stated commercial core is where economic vitality, density and
activity should occur. There will be residences and additional offices in this location,
which is a good thing. Councilman Romero noted this is not a transition zone; it is the
core and heart of Aspen. Councilman Romero said the HPC did their job in reviewing
the applicant as it conforms to historic preservation.
Councilman Romero moved to adopt Ordinance # 1, Series of 2008.
Councilman Skadron stated he considers in his decision the information brought forward
by public comment and many people spent time on their presentations on this project.
Councilman Skadron said the applicants and architects have done a good job.
Councilman Skadron stated he appreciates that the proposed height is less than allowed in
the zone district. Councilman Skadron said parts of this application unsettle him; the
Exhibit F
Ciry Council minutes
5/27/08
12
Reeular Meeting Aspen City Council Mav 27, 2008
floor area grows by 95%; the height increases from 23' to 39', a 70% increase.
Councilman Skadron said as a function of those increases, there aze consequences on the
adjacent historic assets like the Andres building, Red Onion, Aspen Block and
Independence building. Councilman Skadron said this building attempts to replace a
building that is eclectic, full of character, authentically western and respects history in its
design with a building that is not.
Councilman Skadron stated this community feels the building is too imposing a structure
for Aspen's prime gathering spot. Councilman Skadron said he recognizes the
developers right to a building within the guidelines; however, he does not believe
redevelopment tames with it an associated or implied entitlement to refashion or
transform the underlying character of the area in which it is built. Councilman Skadron
stated this redevelopment is likely to do that. Councilman Skadron said he believes a
project cannot meet everything in the AACP; however, prominent projects like this
should have, at a minimum, community support and this project does not. Councilman
Skadron said he feels opportunities exist to do something even more special than what
has been presented. Councilman Skadron stated he cannot support this application
because this proposed building does not go far enough to satisfy the first standard of
subdivision review, the criteria that requires the proposed subdivision be consistent with
the AACP.
Councilman DeVilbiss said he does not support this application and does not find that the
application retains and encourages an eclectic mix of design style to maintain and
enhance the special character of Aspen. Councilman DeVilbiss stated he does not believe
this application encourages development to occur within the Aspen community growth
boundary and emphasize3s good city form. Councilman DeVilbiss said this project will
adversely affect the future development of surrounding properties. The application
overwhelms everything around it. The application is massive. Councilman DeVilbiss
said he walked the area and there is a view of the park now from the Volk property and
that view will be seriously impaired by this proposed building. Councilman DeVilbiss
stated he cannot support this project.
Councilman Johnson said it is important to enter the a-mails into the record as he would
like to cite from them. Councilman Johnson noted for the record there is a 1985 memo
from Robin Molny regarding a proposal to increase the public space at this corner
including a potential purchase of the Volk property and how important that was to the
public realm. Councilman Johnson included in the record enabling legislation for the
public malls. Councilman Johnson said there is a record of proceedings and a GMQS
application for the Volk property from 1985. Councilman Johnson noted the subdivision
criteria did not change from the moratorium and the aspects and criteria aze the same.
Councilman Johnson said the applicant stated the a-mails received by Council do not
address the issues before Council under the subdivision criteria, with which he does not
agree. Councilman Johnson said he reads the definition of subdivision from the land use
code as "the process, act or result of dividing land into one or more plots, parcels or other
units of the land or separate legal interests for the purpose of ellipses building or
Exhibit E
Ciry Council minutes
SR7/OB
13
Regular Meeting Aspen City Council Mav 27.2008
development ellipses subdivision shall also include ellipses land to be used for
condominiums, apartments or any other multiple dwelling units.
Councilman Johnson stated subdivision is not, as some have asserted, only the process of
dividing into sepazate legal interests nor is it only the division or large tracts of land into
smaller parcels for the purpose of building single family homes. Councilman Johnson
stated the definition of subdivision also includes the result, which is the buildings that are
created through subdivision into sepazate legal interests.
Councilman Johnson said the a-mails received speak to the subdivision criteria and focus
on 3 areas; one, that this corner contributes to the quality of Aspen's town square or
public gathering space; two, how this project, if approved, would encowage other
property owners to redevelop and further erode the quality of the space; and three, such
erosion would degrade both the public and tourist experience. Councilman Johnson
noted Betsy Ratcliff said such a development would not make a good impression on the
visitors; Art Burrows says existing areas like this are overcrowded and suggests this
building will eliminate dwell tendency and afternoon sun, which makes the Pazadise
Bakery location so enjoyable; CarlosLaldivaz spoke persuasively on urban design
perspective and the impacts of futwe redevelopment of all the comers at this location.
Zaldivar states this is not like any comer in town and should not be treated as such.
Ricky Newman, Junee Kirk and Wendy Perkins cite the great gathering spot of Aspen.
Councilman Johnson noted there are 3 e-mails from residents or business owners in this
location; from Terry Butler; Guido Meyer and Denise Reich. Meyer suggests this
proposal is out of scale with the rest of the buildings at Cooper and Galena; other
buildings are lower than the height of this building. Meyer states this is an important
downtown corner and thought should be given as to how it can benefit the mall.
Councilman Johnson said the letter from Denis Reich regazding the Volk property states
they were required by the city to designate open space, even though the building did not
make economic sense because each space was between 400 and 600 square feet. They
were required to set the building faz back which was an economic hardship. Reich states
they went out of their way to make it a friendly, pedestrian comer; Aspen needs setback
buildings, and wonderful restawants and pedestrian friendly area and especially a
mountain view. Reich stated large buildings lot line to lot line do not fit [he town's
character.
Councilman Johnson said LJ Erspamer, P&Z member, makes suggestions about the
redevelopment and impact. Lani White makes the same references and concerns about
the public space. Councilman Johnson noted in 1985 a GMQS application was submitted
to the city, page 18 under amenities states, "the design of the project's open space azea so
as to maintain the property's existing open space pattern represents a major concession
on behalf of the applicant as it dictates the shape of the building and significantly
increases development costs. The resulting concentration of 1,000 squaze feet of highly
useful public open space at the front of the site constitutes a major amenity for the
project, adjacent land uses and the city of Aspen".
Exhibit P
City Council minutes
5/27/08
14
Reeular Meetin¢ Asaen City Council Mav 27, 2008
Councilman Johnson said in the Record of proceedings, the claims were made how this
building was designed in response to public concern such as public space and the historic
surrounding buildings. The memo from Robin Molny, 1985, entitled Independence
Squaze presentation, says the same things and includes drawings. This is relevant to the
subdivision criteria.
Councilman Johnson said this project is in the city's main commercial zone and all of the
site would be fully developed and all height would be utilized, yet there will be a loss of
net leasable commercial space. Councilman Johnson said that does not seem to be an
appropriate way in which a commercial azea should grow nor would it be wise if others
would follow. That would be a negative impact on futwe development.
Councilman Johnson said there are tourist impacts to be considered because of the public
gathering space which the city and adjacent property owners have contributed to in the
past. The original Bidwell building predates the pedestrian malls and open space
requirements and a building this size fronting right on the mall would negatively impact
future development in this area, if the Volk property comes up for redevelopment or if the
Guido's building comes in for redevelopment and the public space would be lost.
Councilman Johnson noted this public space is used for general public gathering, for
parades, for non-profit space like Ducky Derby, and the Ski Company spends
$100,000/yeaz to put on concerts in [his square. Councilman Johnson said good public
spaces are created by both positive space, those which are built, and those left unbuilt.
Councilman Johnson said to only leave the pedestrian malls unbuilt is insufficient in the
creation of quality public space. This project intrudes on the public spaces and threatens
its use and vitality. The project will encowage other area buildings to redevelop and
similarly negatively impact the existing public gathering space.
Councilman Johnson said with public comments, written and oral, he feels the approval
of this structwe at this site will contribute to the erosion of quality of the public space,
and that is an unnecessary public cost. This will encourage other property owners to do
likewise, further eroding public space. Councilman Johnson said he cannot see that the
loss of net leasable is a wise way for this area to go nor is it a proper use of valuable
space.
Councilman Johnson stated he cannot find this meets subdivision review criteria A(a);
A(b); A(c) or B(b). Councilman Johnson agreed commercial viable space is a concem
for Council but that is not the only concern. Councilman 7ohnson agreed it is frustrating
to get this far in the process and have so much negative public input. Councilman
Johnson stated it is important that concems raised by the public are the subject of
subdivision review criteria. Councilman Johnson said there are elements to this design
that aze quality pieces; however, he cannot accept the pubic costs associated with this
project.
Motion DIED for lack of a second.
Exhibit f
Ciry Council minutes
5/27/06
15
Regular Meeting Asaea City Couucil Mav 27, 2008
Councilman DeVilbiss moved to deny Ordinance #1, Series of 2008; seconded by
Councilman Skadron.
Mayor Ireland said he appreciates the letters he received. Mayor Ireland said he agrees
with the facts about not complying the AACP. Mayor Ireland noted Aspen has created a
land use code with design review standards that strips from the reviewing bodies to
discuss in full in implications of the plans as submitted. Mayor Ireland stated the Aspen
Area Community Plan acts as the bulwark, the ultimate deciding document upon which
the community can rely in the event the codes or ordinances do not create substantial
justice as opposed to technical justice. Mayor Ireland stated one concern is that the city's
historic guidelines encourage 14' floors and force an applicant to go to 40' to accomplish
3 floors in order to make a project viable. Mayor Ireland said the city's land use code
does not apprehend the impact of affordable housing mitigation in development. Mayor
Ireland said 12,000 squaze feet of high end space does not generate only 3 employees.
The city is running a deficit in employee housing. Mayor Ireland said on problem is that
the city does not have a cleaz view of what has happened; residential development and
the demand for high end development is driving Aspen's development. Conversions to
high end residential are eroding the core's accessibility to the ordinary person and to the
tourists. Mayor Ireland said the velocity of redevelopment is scary; things are happening
in a way that is hard to handle. Mayor Ireland said the city ought to change the code so
that the P&Z is able to review scale, bulk and mass. HPC should look at whether things
are historic or not. Mayor Ireland agreed last minute responses aze the norm in Aspen.
Mayor Ireland noted survey show most people work 52 hours/week so they come in at
the last minute.
Roll call vote; Councilmembers Johnson, yes; Skadron, yes; Romero, no; DeVilbiss, yes;
Mayor Ireland, yes. Motion carried.
Councilman Johnson moved to suspend the rules and extend the meeting to 10 p.m.;
seconded by Councilman Romero. All in favor, with the exception of Mayor Ireland.
Motion carried.
ORDINANCE #12. SERIES OF 2008 - Establishment of TDRs 612 West Main
Sara Adams, community development department told Council this is a 6,000 squaze foot
lot with a designated land mark. The applicant has requested the establishment of 6
TDRs leaving 43 squaze feet of unbuilt floor area.
Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland
closed the public hearing.
Mayor Ireland moved to adopt Ordinance #I2, Series of 2008, on second reading;
seconded by Councilman Skadron. Roll call vote; Councilmembers Romero, yes;
Skadron, yes; Johnson, yes; DeVilbiss, yes; Mayor Ireland, yes. Motion carried.
Exhibit f
Ciry Council minutes
sinios
16
~d•
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
FROM: Sara Adams, Senior Planner
THRU: Chris Bendon, Community Development Director ~ ttV~
DATE OF MEMO: November 30.2009
MEETING DATE: December 7, 2010
RE: 211 West Hopkins Avenue, Ordinance #48 negotiation
process, First Readin¢, Ordinance No. ~-O~ ,Series of
2009. Second Reading is scheduled for February 8, 2010.
REQUEST of CourvetE: Council is asked to use the information provided to determine
the significance of 211 West Hopkins Avenue and, subsequently, to determine what
benefits to offer the property owner in exchange for landmark designation.
BACKGROUND: In July 2007, Aspen City Council adopted an emergency ordinance,
Ordinance #3Q Series of 2007. That ordinance prohibited any exterior alterations, land
use applications, or building permits affecting all non-landmarked buildings constructed
at least 30 years ago, unless it was determined that no potential historic resource was
negatively affected. The purpose of the Ordinance was to protect Aspen's significant
architectural heritage; not only Victorians, but more modern structures as well.
Ordinance #30 was in place for 5 months, during which time Council held numerous
meetings to discuss the effect of the new regulations and potential amendments. In
particular, Council wished to see the applicability of the Ordinance narrowed down
dramatically from all properties over 30 years of age to a specific list researched by staff
and found to potentially qualify for landmark designation. In December 2007, Ordinance
#48, Series of 2007 was adopted to replace Ordinance #30.
Ordinance #48 creates a formal list of potential historic resources in Aspen that may have
historical, architectural, archaeological, engineering and cultural importance.
Detrimental development or demolition actions affecting these properties will be limited
while the City undertakes an evaluation of the historic preservation program via the HP
Task Force.
21 I West Hopkins Avenue is identified on the List of Potential Historic Resources as part
of Ordinance #48. Owners of property listed on Ordinance #48 can still move forward
wish proposed projects if they:
211 West Hopkins Avenue
Ordinance #48 negotiation
First Reading
Page 1 of 6
A. Submit the plans and seek staff determination that the work is exempt from delay
under Ordinance #48 (routine maintenance work for example); or
B. Submit plans and seek staff determination that the work, while not exempt from
Ordinance #48, can move forward by voluntarily complying with Staff or HPC
review (depending on the scope of work) of the project, or
C. Submit plans with the intention of triggering a 90 day delay period, during which
time City Staff and Council will negotiate for appropriate preservation of the
property. If the negotiation does not result in an agreement to landmark designate
the property, the building permits will be processed as requested.
The owners of 211 West Hopkins Avenue submitted a demolition permit on Feb 27, 2009
which triggered the Ordinance #48 review. Staff provided the applicant with an analysis
of existing benefits available to landmark properties to illustrate the advantage of
landmark designation (Exhibit B.) At this time, the owners prefer to proceed with
obtaining the demolition permit and are requesting a 10 year vesting period. The 2009
permit is the 4`~ demolition permit applied for this property since 2001.
During the 90 day negotiation period, meetings were scheduled with the HPC and the
City Council. HPC discussed this issue on November 11, 2009. Afrer an extensive
discussion of the property's merits, HPC voted 4 to 0 to recommend that Council
negotiate for landmark designation of the property. HPC recognized that 211 West
Hopkins Avenue is the best example of the Pan Abode style in Aspen, and as such,
recommended that Council pursue every possible avenue to ensure preservation of this
property.
The property owner's representative, attorney John Kelly of Oates, Knezevich,
Gardenswartz & Kelly, P.C., indicated that the owners are not interested in changing the
property at this time. They are concerned about the uncertainty around historic
preservation regulations for Post World War II properties in Aspen, and prefer to have a
10 year vesting period for the pending demolition permit.
HPC unanimously requested that the applicant commit to not demolishing the building
for the first 3 years of the 10 year vesting for the demolition permit to allow more time
for discussion. "the Trust that owns this property will agree not to demolish for three
years afrer approval of the Ordinance, so long as the current executor is living. HPC also
requested that the City receive a few months notice before the owners act on the
demolition permit to possibly relocate the building: the owners are amenable to this
condition.
LAND USE REQUESTS AND REVIEW PROCEDURES: COL1RCl1 IS asked t0 decide whether
this property's significance warrants negotiations with the property owner for its
preservation. The criteria for designation are listed below and staff's analysis follows.
211 West Hopkins Avenue
Ordinance #48 negotiation
First Reading
Page 2 of 6
26.415.030.B. Criteria To be eligible for designation on the Aspen Inventory of Historic
Landmazk 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 properties will be evaluated according to the following
criteria. When designating an historic district, the majority of the contributing resources
in the district must meet the criteria described below:
1. A property or district is deemed significant for its antiquity, in that it is:
a. In whole or in part more than one hundred (100) years old, and
b. It possesses an appropriate degree of integrity of location, setting, design,
materials, workmanship and association, given its age; or
2. A property or district is deemed significant as a representation of Aspen's 20th
Century history, was constructed in whole or in part more than thirty (30) years prior
to the yeaz in which the application for designation is being made, possesses
sufficient integrity of location, setting, design, materials, workmanship and
association and is related to one (1) or more of the following:
a. An event, pattern or trend that has made a significant contribution to local,
state, regional or national history,
b. People whose specific contribution to local, state, regional or national history is
deemed important and the specific contribution is identified and documented, or
c. A physical design that embodies the distinctive chazacteristics of a type, period
or method of construction or represents the technical or aesthetic achievements of
a recognized designer, craftsman or design philosophy that is deemed important.
3. A property that was constructed less than thirty (30) years prior to the year in which
the application for designation is being made may be considered under Paragraph 2
above, if the application has been filed by the owner of the property at the time of
designation or, when designating an historic district, the majority of the contributing
resources in the district meet the thirty-year age criterion described above.
STAFF FINDINGS: 211 West Hopkins Avenue is a Pan Abode manufactured log home
built in 1956 for Clyde Nervell. Manufactured log kit homes gained popularity in Post-
War Aspen because they were cheap, quickly constructed buildings that were typically
used as vacation homes and offered through salesmen. Manufactured "log" cabins were
indicative of American's romanticized image of the Wild West that was fueled by series
like the Lone Ranger (1933 - 1954) and Davy Crockett (1955.) Exhibit C outlines the
Rustic Style and Exhibit D is a timeline to provide national and local context. Examples
211 West Hopkins Avenue
Ordinance #48 negotiation
First Reading
Page 3 of 6
of Pan Abode homes built in Aspen in the 1950's and 1960's are shown below {the
211 West Hopkins Avenue
Ordinance #48 negotiation
First Reading
Page 4 of 6
photograph below is 211 West Hopkins Avenue.)
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Staff finds that designation criteria a and c
are met. 211 West Hopkins Avenue
represents the pattern of Aspen's early
\`~-~- skiing development. It visually conveys
the simplicity of vacation homes and
f modest housing that was desirable in the
1950s as a lifestyle. The log style was
211 West Hopkins Avenue
Ordinance #48 negotiation
First Reading
Page 5 of 6
appealing for its association and relationship with the mountain environment and
azchitectural context of Aspen.
In Staff s opinion, 211 West Hopkins is our best example of a Pan Abode home in Aspen.
The setting, detailing, materials and modest design cleazly represent the rustic style and
the lifestyle of Aspen in the 1950s. There appeazs to be a one story addition at the rear of
the structure. The original details and typical window configuration appear to be intact.
The property received an integrity score of 95 points out of 100, where 75 points is the
threshold for designation of Post World War II properties.
It is important to note that there aze only ten (10) Pan Abode/manufactured log homes left
in Aspen and the majority of them have incompatible additions. Two (2) of the ten (10)
aze designated landmazks and the remaining eight (8) are unprotected. The property
owner requests a 10 yeaz vesting period for a demolition permit. Staff finds that this
property is vital to telling the story of Aspen's Post World Waz II history and
recommends a 10 yeaz vesting period for the demolition permit to allow ample time for
Staff to work with the owners to hopefully reach an agreeable solution that preserves the
property for the community and satisfies the needs of the owners. Staff also recommends
that the property owner agree to notify the City 90 days prior to acting on the demolition
permit.
STAFF RECOMMENDATION: Staff finds that 211 West HOpk1nS Avenue iS the best
example of the Pan Abode Style in Aspen and strongly recommends that Council
negotiate for its preservation.
PROPOSED MOTION: "I move to approve Ordinance # ~, Series of 2009 on first
reading."
CITY MANAGER COMMENTS:
EXHIBITS:
A.) Drawings and photographs of 211 West Hopkins Avenue.
B.) Property analysis of landmark benefits for 211 West Hopkins Avenue.
C.) Rustic Style Context Paper.
D.) Rustic Style Timeline.
E.) Rustic Style Integrity Score Sheet.
F.) Letter from owner's representative.
211 West Hopkins Avenue
Ordinance #48 negotiation
First Reading
Page 6 of 6
ORDINANCE # oZ
(Series of 2009)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO
TERMINATING ORDINANCE #48, SERIES OF 2007 NEGOTIATIONS FOR
LANDMARK DESIGNATION OF 211 W. HOPKINS AVENUE, LOTS F AND G,
BLOCK 53, CITY AND TOWNSITE OF ASPEN, COLORADO WITH CONDITIONS
PARCEL ID: 2735.124.63.003
WHEREAS, Vaughn Family 1~rust, represented by attorney John Kelly of Oates, Knezevich,
Gardenswartz & Kelly, P.C., has applied for a building permit to demolish the house located at
211 W. Hopkins Avenue, Lots F and G, Block 53, City and Townsite of Aspen, Colorado. Under
the provisions of Ordinance #48, Series of 2007, Vaughn Family Trust subsequently consented to
a ninety day review and negotiation of potential historic significance of the subject house. The
negotiation period was extended, with the owner's consent; and
WHEREAS, Section 26.415.025 (e) of the Municipal Code states that "the Community
Development Director shall confer with the Historic Preservation Commission, during a public
meeting, regazding the proposed building permit and the nature of the Potential Historic
Resource. "the property owner shall be provided notice of this meeting with the Historic
Preservation Commission;" and
WHEREAS, the property owner was notified of the Historic Preservation Commission meeting;
and
WHEREAS, Sara Adams, performed an analysis of the building and found that the criteria for
landmark designation are met; and
WHEREAS, at their regular meeting on November 11, 2009, the Historic Preservation
Commission considered the application, found that the subject property is the best example of the
Pan Abode style in Aspen, and approved a motion to recommend Council pursue negotiations for
landmark designation by a vote of 4-0.
WHEREAS, the City Council finds that negotiation for landmark designation may be appropriate,
but aze premature without any development plans or proposal from the applicant for incentives that
would deter demolition or alteration; and,
WHEREAS, the City Council finds that this Ordinance to terminate negotiation with conditions
furthers and is necessary for the promotion of public health, safety, and welfare.
211 W. Hopkins Avenue
Ordinance #48 Negotiation Review
Page 1 of 4
26.415.030.B. 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 properties will be evaluated according to the following
criteria. When designating an historic district, the majority of the contributing resources
in the district must meet the criteria described below:
1. A property or district is deemed significant for its antiquity, in that it is:
a. In whole or in part more than one hundred (100) years old, and
b. It possesses an appropriate degree of integrity of location, setting, design,
materials, workmanship and association, given its age; or
2. A property or district is deemed significant as a representation of Aspen's 20th
Century history, was constructed in whole or in part more than thirty (30) years prior
to the year in which the application for designation is being made, possesses
sufficient integrity of location, setting, design, materials, workmanship and
association and is related to one (1) or more of the following:
a. An event, pattern or trend that has made a significant contribution to local,
state, regional or national history,
b. People whose specific contribution to local, state, regional or national history is
deemed important and the specific contribution is identified and documented, or
c. A physical design that embodies the distinctive characteristics of a type, period
or method of construction or represents the technical or aesthetic achievements of
a recognized designer, craftsman or design philosophy that is deemed important.
3. A property that was constructed less than thirty (30) years prior to the year in which
the application for designation is being made may be considered under Paragraph 2
above, if the application has been filed by the owner of the property at the time of
designation or, when designating an historic district, the majority of the contributing
resources in the district meet the thirty-year age criterion described above.
STAFF FINDINGS: 211 West Hopkins Avenue is a Pan Abode manufactured log home
built in 1956 for Clyde Nervell. Manufactured log kit homes gained popularity in Post-
war Aspen because they were cheap, quickly constructed buildings that were typically
used as vacation homes and offered through salesmen. Manufactured "log" cabins were
indicative of American's romanticized image of the Wild West that was fueled by series
like the Lone Ranger (1933 - 1954) and Davy Crockett (1955.) Exhibit C outlines the
Rustic Style and Exhibit D is a timeline to provide national and local context. Examples
211 West Hopkins Avenue
Ordinance #48 negotiation
First Reading
Page 3 of 6
terminate negotiations at any time. Upon the passage of 90 days, or any mutually
agreed upon extension thereof, or upon Council's termination of the negotiation, if the
City and the property owner have failed to reach a mutually acceptable agreement,
Permit #0013.2009.ARBK shall be issued.
3. Upon issuance, Permit #0013.2009.ARBK shall be valid for a period consistent with the
Building Code in effect at the time of issuance.
4. It is expected that the owner will cooperate in good faith with any efforts to relocate the
building in lieu of demolition.
Section 2: Severability
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 3: Existing 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 4: Public Hearing
A public hearing on the ordinance shall be held on the `h of , 2010, in the City
Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a
public notice of the same was published in a newspaper of general circulation within the City of
Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 7`h day of December, 2009.
Michael C. Ireland, Mayor
ATTEST:
Kathryn Koch, City Clerk
Jsignatures on the following page.J
211 W. Hopkins Avenue
Ordinance #48 Negotiation Review
Page 3 of 4
FINALLY, adopted, passed and approved this
day of , 2010.
Michael C. Ireland, Mayor
ATTEST:
Kathryn Koch, City Clerk
APPROVED AS TO FORM:
John Worcester, City Attorney
211 W. Hopkins Avenue
Ordinance #48 Negotiation Review
Page 4 of 4
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ASPEN'S 20TH CENTURY ARCHITECTURE:
RUSTIC STYLE BUILDINGS
The Rustic Style of azchitecture was symbolic of early 20~' century attitudes that embraced
not only the mythology of the "hazdy outdoor life of American pioneers"' in the western United
States, but also, to an extent, the larger dream of Manifest Destiny. There was embedded
within the style a desire to live up to the spirit of adventure and rugged determinism of those
who had ventured West.
Though heavily steeped in western legend, the Rustic Style's roots actually lay in the
simple pioneer cabin, and in the vacation homes of the Adirondack Mountains which were built
in the late 1800's. As early as 1916, however, with the founding of the National Pazk Service,
the style became a cornerstone of the NPS's belief that "buildings should blend in with their
natural surroundingsiz and that "natural settings could influence azchitecture." 3 The majority of
entryways, information centers, and guest lodges that were built in the Parks throughout the
country in the first decades of the 20~' century were log and stone buildings constructed in what
came to be known as the "National Parks Service Rustic" style. "The high point in the
development of this `rustic' design ethic occurred in the late twenties and spread throughout the
nation during the work-relief programs of the Depression.s4
Hand-in-hand with the growth of the National
Pazks Service was the development of resort azeas
throughout the Rocky Mountain States, and Rustic
Style buildings, which ranged in size from small
cabins to substantial lodges, were constructed in
Colorado starting in 1905.5 Eazly examples of the
buildings can be found in burgeoning tourism and
vacation spots such as Grand Lake, Thomasville,
Woodland and Estes Pazks. Rustic style
"represented an eazly 20~' century movement in
American architecture It was picturesque,
romantic architecture that recalled the American
past."6
In Aspen, Colorado, Rustic Style cabins used as
lodges and residences, began to be built in the
1930's, though the tourism industry was still in its
infancy. The Waterman Cabins, built in 1937, and
once located at the corner of 7a' and Hallam Streets,
have since been demolished, but were one of
Aspen's first group of small tourist cottages. The
Swiss Chalets (now L'Auberge, and suffering from
' Carley, Rachel, "Cabin Fever: Rustic Style Comes Home"
z Rocky Mountain National Park, Home Page, Historic Buildings
' Kaiser, Harvey H., Landmarks in the Landscape, 17
Harrison, Laura Soulliere, Architecture in the Pazks, National Historic Landmark Theme Study, 1
5 Colorado Historical Society Home Page
e Throop, E. Gail, "Rustic Architecture: Period Design in the Columbia River Gorge"
Grand Lake Lodge, built in 1925
Sumers Lodge, a vacation home in Glemvood
Springs, built in 1935
the "chalet" misnomer- as they aze, indeed, in the rustic style) aze located at 435 W. Main
Street, and were built during roughly the same period. Prescient, and perhaps with a nod to the
automobile's growing influence in American society, a motor court configuration at the Chalets
allowed guests to drive right up to the individual units. Single family residences in Aspen
employed the Rustic Style as well.
-,-;~
300 W. Main Street, residence built in
1944.
WPA Bell tower, built in the
1930's and shown here after
its relocation to Paepcke
Park in 1954. It was
Swiss Chalets, 435 W Main Sheet, built circa
7940'c
Also in the 1930's, a WPA sponsored structure that was used as
a bell tower was constructed at the present location of the town fire
station on East Hopkins Avenue. It fell under the supervision of
the National Park Service, who managed the WPA program and the
design of all its projects. The Park Service's architectural
philosophy was summarized at the time in a volume entitled "Park
and Recreation Structures,"which stated that,
"Successfully handled, (rustic) is a style which, through the
use of native materials in proper scale, and through the
avoidance of rigid, straight lines, and oversophistication,
gives the feeling of having been executed by pioneer
craftsmen with limited hand tools. It thus achieves sympathy
with natural surroundings and with the past."'
After the Second World War, looking to the past- and in
particular, the American past- was the result of a nation turning
reconstructed rn 1990. lnwazd5, and away from foreign battlefields. The romance and
heightened idealization of the West, and the appeal of the rugged individualist's lifestyle, was
evidenced by the popularity of television shows like "The Lone Ranger" and "Davy Crockett",
and further, by the proliferation of Western movies (many of which were produced as a result
of the McCarthy Era effect on post-waz Hollywood productions). The American public
acculturized the West's ideals, and the Rustic Style even found its way into children's toys like
"Lincoln Logs."
' Harrison, 8
The American landscape was transformed in the 1940's. The unpazalleled growth and
prosperity of the United States (spurred on in part by the GI Bill), and the "baby boom" that
began- and didn't slow down- until the late 1960's, brought with it success, comfort, and a
blossoming middle class. Americans were enjoying greater financial freedom, along with
increased leisure time, and they were looking for adventure. They looked West.
Falling gasoline prices, the construction of cross-country highway systems, and a young,
flourishing automotive industry (by-products of the post-waz economic climate), "gave greater
numbers of people the means to travel, and previously inaccessible places were more easily
reached."8 Vacationing and tourism became the hallmark of the American lifestyle, and the
West held a particular interest for a people with newfound freedom, and the desire for
adventure. "To Americans the West is their refuge, the home of the `last best place."9
Vacation homes, hunting lodges, dude ranches, and tourist-related facilities began to increase in
number after the Waz, many built in the Rustic Style, which was perfect for the "frontier
spirit"10 of the new American tourist.
Aspen was the ideal destination for the "new American tourist." Purple mountains majesty
aside, it had a growing reputation as a ski town- a sport that was gaining increasing
popularity. And as people ventured out west to vacation in the late 1940's and early 1950's,
they were looking for what so many had sought before them: the spirit of adventure, romance,
and ruggedness. Yet what Aspen offered, even then, was so much more. It became an
"archetype for the beginning of tourism in the post-World War II American West."~t The
effort to create a cultural and artistic haven, and year-round resort town that offered "good
opportunities for combining work, play, and culture,s12 only added to the town's uniqueness, as
a "post-waz consumer culture and the nation-wide growth of tourism, combined with the
beginning of the ski industry, meant that people no longer had to belong to an elite club or live
in a mountain town in order to ski."13
Rustic Style buildings continued to be
constructed in town during this period,
including Deep Powder Lodge (circa late
1940's/early 1950's), at 410 S. Aspen
Street, and The Hickory House (initially
christened The Silver Chicken) at 735 W.
Main Street, which was built in 1950. At
the time, it was one of the few restaurants
operating in town, and the original sign,
located on the west side of the building,
reads "restaurant," and is lettered to look
like logs, harmonizing the theme of the
structure down to the last rustic detail.
s Rothman, Hal K., Devil's Bazeains -Tourism in the Twentieth-Century American West. 202
9 Rothman, 14
10 Cazley
~~ Rothman, 207
~z Rothman , 213
"Gilbert, Anne M., Re-Creation throueh Recreation: Aspen Skiing from 1870 to 1970, 46
3
Deep Powder Lodge, 410 S. Aspen Street, built circa
lme 7940's/enrJv 1950'.c
There was no shortage of young male labor during the period these buildings were constructed,
and the materials were readily available locally. Small cabins could be erected during a
summer, readying them for the new American tourist seeking the "Western adventure."
Between 1940 and 1959, the number of full-time residents in Aspen increased by 1000, and
"by 1959 at least 200 part-time residents joined the year-round crowd."14 As Aspen's
amenities began to attract a lazger, more influential and wealthy group of second homeowners
(including some of Hollywood's brightest stars), the city began to transform itself into a
premiere, year round resort, and many people "chose to move to or build vacation homes in
Aspen."15 For some, a second home built in the Rustic Style was a natural choice, and things
were moving fast:
"A gala opening of the lifts and reopening of the Jerome was held in January,
1947, and people poured in from all over the country. A boom was on, and every
tax title was gone at the court house. If you wanted a lot or a house in Aspen, you
could no longer step around to the county commissioners and make an offer of a
hundred dollars or so on some abandoned property. You went to a swank new
real estate office and paid through the teeth, several thousand dollars. Aspen had
been bought up in a twinkling, and by a strange assortment of people- artists,
writers, and movie actors who wanted to get away from city life, wealthy
sportsmen who wanted a fishing and hunting lodge, mid-westerners who wanted a
summer mountain cottage, eastern couples who wanted to try their hand at
ranching, and ski cranks who wanted to start a business, any sort of business, to
be close to Aspen's slopes."16
In part, as demand and mechanization quickly
began to replace the handmade in many aspects of
American life, log cabin kits that could be ordered by
catalog, delivered by train or truck, and then
assembled on site gained in popularity. The kits were
another version of mail order houses that were
popular during the depression era, largely due to their
affordability. Following the lead of Seazs, Roebuck,
& Co. and Montgomery Wazd (who sold hundreds of
thousands of homes during the Depression), other
companies began selling different styles of kit houses,
including Pan Abode (established in 1952), a 211 West Hopkins Street ,a Pan abode built in
manufacturer that specialized in log cabins. After 19s~
1950, Rustic Style buildings in Aspen were more commonly machine-made kit log structures
than hand-built, but they still reflected the same American West iconography. Materials in
these later buildings simulated log construction and referenced the particular visual details of
the original log structures. Examples of kit log structures built as second homes during this
period aze found at 211 W. Hopkins and 765 Meadows. The kits were also used for quick-to-
build housing to fill the growing needs of the ski resort workforce, many of whom could not
`a Rothman, 223
15 Gilbert, 72
16 Bancroft, Cazolyn, Famous Asoen
4
qualify for traditional mortgages, due to the part time nature of their jobs, and therefore relied
on affordable construction methods.
Eligibility Considerations
There aze specific physical features that a property must possess in order for it to reflect
the significance of the historic context. Typical characteristics of the Rustic Style aze "log
construction, stone foundation, small paned windows, overhanging roof, stone chimney, and
battered walls."t~ To be eligible for historic designation, Aspen's examples of Rustic Style
azchitecture should have the following distinctive characteristics:
• Hand built structures that are constructed out of locally available materials, usually
log; stone may be incorporated at the base, or in the form of a fireplace and chimney.
Later examples include machine cut logs.
• The buildings are usually single story, with aloes-pitched gable roof.
• True log construction with overlapping log ends, coped and stacked. Logs may be
dressed and flattened for stacking or may be in rough form. Chinking infills the
irregularities between the logs either way. Machine made buildings mimic these
details, though without the chinking.
• Window openings aze spaze and usually horizontally proportioned, wood trim is used
to finish out the window openings.
• Building plans are simple rectangulaz forms, with smaller additive elements.
• The roof springs from the log wall, and gable ends aze often idled with standazd
framing. This may be a small triangle or a second level of living space.
• The emphasis is on hand-made materials and the details stem from the use of the
materials, otherwise the detail and decoration is minimal.
Though Pan Abode structures are still being manufactured today, which poses a greater
challenge in determining the end date for the Rustic Style period, changes in the type of
accommodations and facilities that were desired for both tourists and homeowners began to
evidence themselves in Aspen in the eazly 1970's. As land became more valuable, the era of
the small vacation cabin came to an end, and custom-built homes were faz more common, as
were condominiums.
Aspen's 1973 Growth Management plan, a reaction to the magnitude of change and
development that the town was experiencing, recognized the need to preserve the quality of life
that many felt Aspen was losing due to its popularity. Second homes began displacing
permanent residents, and in fact, the City passed a controversial ordinance in order to stem the
loss of resident-occupied housing. Concurrently, modest lodges were being replaced with
higher-end accomodations.
These trends were noted again in 1986, when, according to the 1993 Aspen Area
Community P1an18, it was found that the number of second homes had significantly increased,
and that the size of these second homes was particularly lazge compazed to traditional
residences in the city. The shifts in Aspen's development pattern suggest that it would be
"Colorado Historical Society Home Page, Guide to Colorado Architecture
18 Aspen Area Community Plan, 1993
5
appropriate to establish the end of the period of historic significance, which is a term used to
define the time span during which the style gained azchitectural, historical, or geographical
importance, for simple, small scale, Rustic Style buildings as roughly 1970. With regazd to Pan
Abode structures, of which there is a relatively large collection remaining in town, a finding of
historic significance must go beyond the basic chazacteristics of the building as an example of a
kit house, and demonstrate a connection between a specific structure and the local story of
vacation home construction and ski industry related housing, lodging, or facilities.
The Castle Creek Cabins/Waterman Cabins, once located at 7`" and Hallam Streets
Sunset Cabins, once located near 7`h and Main Streets
Deep Powder Lodge
Bibliography
Aspen Area Community Plan, 1993, Aspen, Colorado
Bancroft, Carolyn, Famous Aspen.
Carley, Rachel, "Cabin Fever: Rustic Style comes Home" September 1998,
www.uniauerustiaue.com/history
Colorado Historical Society Home Page, Guide to Colorado Architecture, www.coloraohistorv-
oahp.org,/guides
Directory of Colorado State Register Properties, www.coloradohistorv-oahp.org/publications
Gilbert, Anne M. Re-Creation through Recreation: Aspen Skiing from 1870 to 1970, 1995.
Aspen Historical Society, Aspen, Colorado
Harrison, Laura Soulliere, Architecture in the Pazks: A National Historic Landmazk Theme
Study, National Park Service, Department of the Interior, November 1986
http://www.cr.nps.cov/historv/online books/harrison
Kaiser, Harvey H., Landmarks in the Landscape, California: Chronicle Books, 1997.
Rocky Mountain National Park, Home Page, Historic Buildings
http://www.nps.eov/romo/resources/historv/historic.html
Rothman, Hal K., Devil's Bazgains -Tourism in the Twentieth-Century American West,
Kansas: University of Kansas Press, 1998.
Throop, E. Gail, "Rustic Architecture: Period Design in the Columbia River Gorge", 1995.
CRM Volume 18, Number 5, http://crm.cr.nps.gov/azchive/18-5/18-5-4.pdf.
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Exhibit E
Rustic Style Integrity Assessment
INTEGRITY ASSESSMENT- RUSTIC
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.
3 -The structure has been moved within the original site but still maintains
the original alignment and proximity to the street.
0 -The structure has been moved to a location that is dissimilar to its original
site.
TOTAL POINTS (maximum of 5) = 5 points
• 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 authenticating documentation, is still
intact.
6 -The plan form has been altered, but the addition would meet the design
guidelines.
0 -Alterations and/or additions to the building aze such that the original form
of the structure is obscured.
Staff response: 6- A small one story addition appears to have been added at
the rear in the Pan Abode style.
ROOF FORM
10 -The original roof form is unaltered.
6 -Additions have been made that alter roof form that would meet the
current design guidelines.
0 -Alterations to the roof have been made that obscure its original form.
Staff response:l0- the gable roof form is unchanged.
SCALE
5 -The original scale and proportions of the building are intact.
3 -The building has been expanded but Che scale of the original portion is
intact and the addition would meet the design guidelines.
0 -The scale of the building has been negatively affected by additions or
alterations.
Exhibit E
Rustic Style Integrity Assessment
Staff Response: 4- an addition is located at the rear of the building, but the scale
remains largely unaffected.
DOORS AND WINDOWS
10-The original door and window pattern are intact.
8- Some of the doors and windows are new but the original openings are
intact.
4- More than 50% of the doors or windows have been added and/or the
original opening sizes have been altered.
0- Most of the original door and window openings have been altered.
Staff Response: ] 0- the door and window pattern and openings are intact, but it is
difficult to tell if the units were replaced.
CHARACTER-DEFINING FEATURES/SPARF. QUALITY OF THE
DESIGN
10-The form and features that define the Rustic style are intact. There is an
overall sense of simplicity. Window and door openings and decorative
features are spare.
5- There are minor alterations to the form and features that define the Rustic
style.
0- There have been major alterations to the form and features that define the
Rustic style.
Staff Response: ] 0- the form and features are consistent with the Rustic style.
TOTAL POINTS (maximum of 45) = 40.
• SETTING Setting is the physical environment of a historic property.
5-The physical surroundings are similar to that found when the structure was
originally constructed.
3-There are minor modifications to the physical surroundings.
0- The physical surroundings detract from the historic character of the building.
TOTAL POINTS (maximum of 5) = 5. The setting, including trees,
walkway and setbacks is unchanged.
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.
Exhibit E
Rustic Style Integrity Assessment
EXTERIOR SURFACES
15-The original exterior wall materials (log, wood siding, and stone) and the
decorative trim materials are intact
10- There have been minor changes to the original combination of exterior
wall materials and the decorative trim materials, but the changes have
been made in a manner that conforms with the design guidelines.
5- There have been major changes to the original combination of exterior
wall materials and the decorative trim materials.
0- All exterior materials have been removed or replaced.
Staff Response: 15 -the exterior materials appear to be original.
DOORS AND WINDOWS
10-All or most of the original doors and windows units are intact.
5- Some of the original door and window units have been replaced but the
new units would meet the design guidelines.
0- Most of the original door and window units have been replaced with units
that would not meet design guidelines.
Staff Response: 10- the doors and windows appear to be original.
TOTAL POINTS (maximum of 25) = 25.
• 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/HAND-BUILT CHARACTER OR
IMITATION OF HAND-BUILT CHARACTER
15-The original detailing is intact. The building is built from locally available
materials and exhibits evidence of handwork, or is attempting to do so if mass
produced.
10-There have been some alterations of loss of the original detailing or
handwork character.
5- 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: 15-the original detailing is intact.
FINISHES & COLOR SCHEME
5- The natural finishes and color scheme that define the Rustic style are
intact
Exhibit E
Rustic Style Integrity Assessment
3- There have been minor alterations to the natural finishes and color scheme
that define the Rustic style.
2- There have been substantial alterations to the natural finishes and color
scheme that define the Rustic style.
Staff Response: 5- the finishes and color scheme that defines the Rustic Style is
intact.
TOTAL POINTS (maximum of 20) = 20.
95 Total Points
MAXIMUM NUMBER OF POINTS= 100
MINIMUM THRESHOLD FOR DESIGNATION= 75 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.
LAW OFFICES OF
DATES, KNEZEVICH, GARDENSWARTZ ~ KELLY, P. C.
PROFESSIONAL CORPOPATION
THIRD FLOOR, gSPEN PLAZA BUILDING
6J3E HOPKINS AVENVE
ASPEN. COLORADO
61611
LEONARD M. DATES ,
NIf.HARD A KNEZEVICH T@LEPHONE 15]015]0-I )00
iF.D D. GARDENSWARTZ FACSIMILE j9101 920 4 121
OAVIOB KELLY
MARIq MORROW
OF COUNSEL'. nKLQaFp4rx cnm
JOHNT HELLY
STEPHFNR CONNOR
ANNE MARIE McPHEE
WENDY C. FOSNEDT
SARAII M. DATES
November 25, 2009
Saza Adams, Sr. Planner
City of Aspen
130 S. Galena
Aspen, CO 81611
Re: 211 W. Hopkins
Dear Sara:
VIA E-MAIL
Based on my conferences with my client you aze authorized to extend the current ninety day
negotiation period for an additional ninety days. You are also authorized to set the ten yeaz vesting
ordinance for December 7'". Finally, as we discussed our compromised offer is that instead of a ten yeaz
vesting with a prohibition against demolition for three years, my client would accept a ten yeaz vesting
period with a three yeaz restriction against demolition, so long as Howazd Vaughan is alive. In the event
of Howard's death, the three yeaz restriction against demolition would terminate.
Please contact me with any questions or comments.
Very Truly Yours,
GATES, KNEZEVICH GARDENSWAR/TZ & KELLY,, ~P.C.
By ~ ~~l G ~~~
ohn T. Kelly
cc: Howazd Vaughan
Jim Casey
JTK/bab
Dacumentl3
LAW OFFICES OF
GATES, KNEZEVICH, GARDENSWARTZ Hv KELLY, P.C.
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAZA BUILDING
533 E. HOPKINS AVENUE
ASPEN, COLORADO, 07511
LEONARD M. GATES
RICHARD A KNEZEVICH
TED D. GARDENSWARTZ
DAVIDB KELLY
MARIA MORROW
OF COUNSEL.
JOHN T. KELLY
STEPHEN R. CONNOR
ANNE MARIE MCPHEE
WENOV G POST VEOT
SARAH M. GATES
November 5, 2009
Historic Preservation Commission, City of Aspen
Ms. Sara Adams
130 S. Galena
Aspen, CO 81611
Re: 211 West Hopkins, Vaughan Family Trust
Dear Sara:
TELEPHONE 1970)920-7700
FACSIMILE (970)920-1121
dTn@okglew.wm
VIA HAND DELIVERY
This office represents the 2004 Vaughan Family Trust dated April 21, 2004 ("Trust"). The
purpose of this letter is request that our client have a ten yeaz vesting period for the demolition permit
currently on file with the Building Department.
Initially we would point out that the Vaughan family has negotiated in good faith with the HPC
staff for many yeazs. We have actually received four demolition permits (including extensions) and
have yet to take any steps towards demolition. In addition I would point out that our client does not
want to demolish the property at this time, for both financial and personal reasons. For the foreseeable
future their current desire is to keep the house as it is. In addition, the Trust is not in the position to
redevelop the property or expend the significant funds necessary to design and gain an approval for
plans pursuant to HPC guidelines. On the other hand, as a Trust, the Trustee does not want the property
locked in to some yet to be determined historic ordinance.
Granting the ten yeaz vesting on the demolition permit has benefits to the City (staff wants the
structure preserved) and gives the owner the ability to enjoy its property without having to resort to the
unwanted alternative of demolition, which is not our client's current desire or intention. Thank you for
your kind consideration in this matter.
Very Truly Yours,
GATES, KNEZEVICH GARDENSWARTZ & KELLY, P.C.
By .~__j~/J/
John T. Kelly, Attorney for the 2004 Vaughan
Family Trust
JTK/bab
Macinbsh HD:LMOASST- Deta:TfIC:ClienmVwghen, Howurd:LSr m Adams 11.5 W.doc
~~.
MEMORANDUM
TO: Mayor Ireland and City Council ~
THRU: Chris Bendon, Community Development Director ('~~;~
FROM: Amy Guthrie, Historic Preservation Officer ~
RE: Second Reading of Ordinance #26, Series of 2009, 630 E. Hyman Avenue
Historic Landmark Designation and Ordinance #48 Negotiation
DATE: December 7, 2009
SUMMARY: 630 E. Hyman Avenue
is a modern commercial building
constructed beginning in 1969. It is
identified on Ordinance #48, Series of
2007 as a "potential historic
resource." This building houses
Sandy's Office Supply and is located
across the street from the Wienerstube
Restaurant.
Owners of property on Ordinance #48
have a few options if they wish to
proceed with work. They can request
staff or HPC approval for their
immediate plans without actually
agreeing to designation, they can
volunteer for designation based on a package of incentives negotiated with City Council, or they
can pass on designation and accept a 90 delay period for the processing of a permit to alter or
demolish the building. 630 E. Hyman Avenue is being brought forward as a voluntary
designation.
The property has recently been purchased from the original owners, Jack and Gesine Crandall.
New owners Greg and Jane Hills plan a refurbishment of the building, including repair and
refinishing of exterior woodwork, replacing all windows, and reconfiguring the primary staircase.
A third floor residential unit is proposed, which will result in the interior courtyard becoming an
enclosed area. Public access will remain and will be enhanced with the addition of artwork and
seating. In addition, the commercial units are to be condominiumized so that several long-term
tenants may purchase their spaces.
On October 28"', HPC held a public hearing and recommended Council approval of Historic
Landmark Designation and Ordinance #48 negotiation, and HPC granted Major Development
(Conceptual) and Commercial Design Review (Conceptual). Some conditions for restudy of
l
design issues were included. There was detailed conversation about the appropriateness of a third
floor, and its impact on the original design concept and historic significance of the building.
HPC found that the addition complies with the design guidelines, does not threaten the property's
eligibility for designation, and facilitates a rejuvenation that will extend the life of the building
and its contribution to the community.
This Council meeting is Second Reading of an Ordinance for historic designation, and
preservation benefits requested by the property owner to incentivize their voluntary landmark
application. The review schedule has been planned to complete the negotiation by January 5~',
within the 90 day period provided by Ordinance #48. Negotiation can be extended if agreeable to
the applicant.
The project does not increase development rights beyond what could be achieved through
existing code processes, however, Council negotiation could assure the applicant the entitlements
and configuration they are seeking. Assuming that the City is successful in negotiating landmark
designation of this site, the applicant will return for Final HPC design review at a future date.
APPLICANT: 630 E. Hyman LLC, represented by Haas Land Planning, LLC and Rowland +
Broughton Architects.
PARCEL ID: 2737-182-12-007.
ADDRESS: 630 E. Hyman Avenue, Lots R and S, Block 99, City and Townsite of Aspen,
Colorado.
ZONING: C-1, Commercial.
HISTORIC DESIGNATION
26.415.030.B. 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 20`h century properties like 630 E. Hyman Avenue is evaluated according to the
following criteria:
A property or district is deemed significant as a representation of Aspen's 20th Century
history, was constructed in whole or in part more than thirty (30) years prior to the year in
which the application for designation is being made, possesses sufficient integrity of location,
setting, design, materials, workmanship and association and is related to one (1) or more of
the following:
a. An event, pattern or trend that has made a significant contribution to local, state, regional
or national history,
b. People whose specific contribution to local, state, regional or national history is deemed
important and the specific contribution is identified and documented, or
c. A physical design that embodies the distinctive characteristics of a type, period or method
of construction or represents the technical or aesthetic achievements of a recognized designer,
craftsman or design philosophy that is deemed important.
Staff Finding: 630 E. Hyman was built beginning in 1969, commissioned by Jack and Gesine
Crandall, and designed by Tom Benton.
Tom Benton was the subject of an exhibit presented by the Aspen Historical Society in 2007, and
is the topic of an upcoming book sponsored by George Stranahan, including an associated
website with the full collection of his work. From www.bentonbook.com:
Thomas Whelan Benton was born Nov. 16, 1930 in Dakland.,
California. Benton attended Glendale High school and Glendale
Junior College before joining the Armed Forces and serving in the
Korean War. After the conflict, he studied at the University of
Southern California, where he earned a degree in architecture. In
the years following his graduation, Benton designed and built a
number of buildings in Southern California.
In his early years, Benton visited Colorado a number of times and
was continually drawn to the area. In 1963, Benton designed and built a building at 521 E.
Hyman in downtown Aspen that would become his home, art studio, and gallery. Benton
became involved in local politics and his gallery soon became the central meeting place.for
local intellectuals, artists, and activists. He shifted his focus from architecture to graphic art
and design in the mid-sixties, creating political posters for the Aspen Liberation Front, a
loose-knit group of local activists. From the beginning of his career, Benton was especially
drawn to the impact of symbols and text, working in tandem in his political works to convey
his message.
According to Pitkin County Sheriff Bob Braudis, "Benton was heavily intellectual and
understood the threat that speculators were to our environment before anyone else.
Throughout his career Tom remained steadfastly loyal to rock solid values and co»zmitted to
sending his political message through his art. "
During the late 1960x, Benton met Hunter Thompson. His friendship and collaboration with
Thompson spanned more than four decades and created or inspired some of Benton's most
recognized works. The 1970 "hunter s. tompson for sheriff 'campaign poster included a
-,
two-thumbed ftst and peyote button for his run for Sheriff of Pitkin County. This work also
inspired the famous "Gonzo Fist" logo Benton designed with fellow artist Paul Pascarella.
Benton also created the original cover for Thompson's "Fear and Loathing on the Campaign
Trail" and collaborated with Thompson on a series of Aspen Wall Posters that featured
artwork by Benton on one side, and literature by Thompson on the other. On the political
front, he went on to create campaign posters for over 30 candidates including Gary Hart,
George McGovern, and Willie Brown. Tom also created numerous "cause" posters for local
benefits, non profits, and charitable causes.
Benton's artwork continued to evolve throughout his career from political posters to abstract
silkscreen prints, monoprints, and oil paintings. His iconic works, composed of complex,
layered images of bold colors, text and symbols, mesmerized his subjects. Benton drew upon
his early career as an architect, the influence of his time is SE Asia, and from artists such as
Mark Rothko and Katsushika Hokusai, Paul Jenkins, and Morris Lewis. His artwork always
remained original and grew in size throughout his career, creating prints over 3' X 3' and oil
paintings measuring 5' X 5'.
"My interest in art is for the organic and poetic. I have great respect for oriental art and do
not deny its influence in my work. In a sense, I'm a raku painter. Raku is a way of
approaching art. It's a spontaneous, intuitive sense. You learn to take advantage of what's
happening to your work while it's happening. There's a lot of emotion and intuitive feeling
involved to the point that you almost know when something is going to happen, and
afterwards, you say, I'm not surprised. "
In the 1980's and 90's, Benton worked part time as a jailer for the Pitkin County Sheriffs
Department and continued to create artwork until he died from lymphoma on Apri127, 2007.
Benton was the featured artist in a retrospective at the Aspen Historical Society in 2007
Perhaps the most remarkable thing about Thomas W. Benton was his fiercely independent
nature, and the enigmatic nature of the man and his work. Though known internationally,
Benton was best-known and most-loved by the regular people. He was prodigiously
productive, and certainly a man considered by peers and collaborators alike as equal parts
dreamer and doer. He was known for creating everything he needed--from his art supplies to
4
his furniture to his home and art studio--and often his tools and accessories were as
captivating as his works on display. Said friend Jay Cowan, " he could have gotten rich
designing buildings, furniture, accessories, almost anything, probably, but he wanted to
produce art and he did. "
Credits to Jay Cowan, Michael Cleverly, Chris Beck
Benton was not specifically profiled in the City's paper "ASPEN'S 20T" CENTURY
ARCHITECTURE:MODERNISM," however he was an influential participant in this movement
as it played out in Aspen from approximately 1945 to 1975. Benton's work as a graphic artist in
the community became more prolific than his architectural practice. Staff is only aware of two
downtown buildings; 630 E. Hyman and Benton's heavily altered studio one block to the west,
that remain of his work. There are examples of residential buildings located in the County.
630 E. Hyman successfully illustrates numerous design philosophies that were central to
Benton's approach. Simple geometric shapes, square juxtaposed with circle, natural materials,
classical form and engaging people in the building (in this case particularly through a hidden
interior courtyard, and framed views towards the mountains,) distinguish the Crandall Building.
It is unaltered to our knowledge, except perhaps some windows on the rear fapade, and scores 99
out of 100 points on the Integrity scoring form. Though a rooftop addition is proposed, HPC has
provided guidance to ensure a sympathetic relationship between the new and the old. The
integrity score will decrease due to the fact that alterations are being made, but staff finds that it
still well exceeds the minimum required point value. Staff finds that the all of the criteria for
designation; a, b, and c, are met.
ORDINANCE #4H NEGOTIATION
The application includes requests for benefits that will incentivize voluntary designation of the
property. The applicant has provided additional detail on the incentive requests since First
Reading.
It is requested that Growth Management exemption be granted in a timely manner for
the right to add one residential unit. This is an existing (and valuable) benefit for
landmarks. Exemption will be granted by the Community Development Director if
the property is landmarked. The property owner will not have to provide affordable
housing mitigation For this unit.
2. The applicant was seeking Subdivision approval, but has been informed that the
project does not require Subdivision review.
3. "fhe building is less than the maximum allowable F'AR, but exceeds the amount of
space that can be dedicated to commercial use by 3,306 square feet. This overage is
being significantly reduced through the remodel, however the amount of commercial
space will still be considered "non-conforming" by 27 square feet. The applicant
5
requests Council grant an increase in the allowable commercial FAR because
non-conformities aze often red flags for financing. This could impact the tenants'
ability to purchase their spaces.
4. The next two requests concern the limits on residential development. Free mazket
units in a mixed use building in the C-1 zone district aze capped at 2,000 squaze feet
of net livable space. Net livable is measured from inside wall to inside wall and does
not include mechanical areas, stairwells, decks, etc. Property owners can exceed the
net livable limit by 500 squaze feet by purchasing and landing a Transferable
Development Right. The applicant is requesting Council allow the residential
unit to be 2,500 square feet in net livable size without a TDR.
There is a separate calculation for residential floor area. Floor azea is measured from
outside wall to outside wall, with relatively few azeas excluded from counting. The
limit applicable to this site is 0.5:1, or 3,000 squaze feet; which can be increased to
4,500 square feet if affordable housing equal to 100% of the free mazket residential
floor azea is developed on the same parcel. The proposal for this project is 0.59:1,
or 3,524 square feet and the applicant requests Council grant a 524 square foot
increase in allowable residential floor area. The 3,524 squaze feet of proposed
residential area is comprised of the one free market unit, which measures to 2,692
square feet of FAR, and 832 squaze feet of non-unit space. In a mixed use building
such as this, all floor area that is commonly shared, such as lobbies, hallways, and
stairways, must be factored into total FAR by dividing the space proportionally
between commercial and residential uses. This building has a significant amount of
common azea due to the central atrium. If Council is not supportive of an increase in
residential FAR, the applicant would either have to (1) reduce the common atrium
space, which is azguably an amenity to tenants and users of this structure, (2) reduce
the size of the free mazket unit by 524 square feet, or (3) provide a deed restricted unit
of 2,692 squaze feet on site. All of the options affect the viability of the project.
5. The applicant requests approvals related to two building features that currently
encroach on to the City owned right-of--way along Spring Street. The features aze a
column and a set of stairs. Revocable encroachment licenses have been granted in the
past. The applicant would like the City to provide permanent easements, or to
vacate the affected portion of the right-of--way. This request has been referred to
the Attorney's Office and Engineering. Generally the City should not grant easements
in perpetuity. The Attorney's office has met with the applicant's representatives and
advised them to prepaze proposed language for Council review.
6. There is a request to waive the School Land Dedication fees that will be generated by
the project. This is a fee the City collects and transfers to the School District. The
City does not have the authority to waive the fee.
School land dedication is calculated based on appraised value of the subject property
and the number of bedrooms being created. Even though any 3 bedroom unit could
azguably generate similar impacts and students for the School District, a downtown
6
site will pay larger fees than some other, less prime location in town. For this project,
the School Land Dedication fee is $45,830.
Current landmazk incentives will result in Pazk Dedication and Transportation
Demand Management fee waivers of $14,781 total. The applicant has asked that
Council grant fee waivers or other benefits that are approximately equivalent to
the School Land Dedication fees, less the waivers noted above. The fee waiver
request is therefore $31,049.
Council could provide compensation by waiving fees that would normally be charged
for this land use review, building pennit fees, tap fees, etc. This would have budget
impacts since services would be provided without payment to the City. The City
Finance Director has advised that Council would need to identify a source of funding
such as reserves, since this cost cannot otherwise be addressed in the 2010 budget.
Council could also compensate over a longer time period, for instance by rebating the
City portion of the property tax for a period of years. Council could also choose to
address less, or none of this request in light of other benefits being awazded.
7. The applicant would like Council consideration for a longer period of vested
rights than the standard 3 years. Five years is requested.
RECOMMENDATION: Staff and HPC appreciate the cooperative spirit of this application and
recommend Council approve Historic Landmark Designation, and pursue Ordinance #48
negotiation with the applicant to the greatest extent possible.
CITY MANAGER COMMENTS:
PROPOSED MOTION: "I move to adopt Ordinance #26, Series of 2009, for 630 E. Hyman
Avenue Historic Landmark Designation and Ordinance #48 Negotiation."
Exhibits:
Ordinance #26, Series of 2009
A. HPC minutes of October 28, 2009
B. ASPEN'S 20T" CENTURY ARCHITECTURE:MODERNISM
C. Integrity Scoring Sheet
D. Historical background on Tom Benton
E. Application
ORDINANCE #26
(Series of 2009)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO
APPROVING LANDMARK DESIGNATION AND ORDINANCE #48, SERIES OF 2007
NEGOTIATIONS FOR POTENTIAL HISTORIC RESOURCES FOR THE PROPERTY
LOCATED AT 630 E. HYMAN AVENUE, LOTS R AND S, BLOCK 99, CITY AND
TOWNSITE OF ASPEN, COLORADO
PARCEL ID: 2737-182-12-007
WHEREAS, the applicant, 630 E. Hyman LLC, represented by Haas Land Planning, LLC and
Rowland + Broughton Architects, has requested negotiation for landmark designation pursuant to
Ordinance No. 48, Series of 2007 for the proposed alterations to the property located at 630 E.
Hyman Avenue, Lots R and S, Block 99, City and Townsite of Aspen, Colorado; and
WHEREAS, the property is included on F,xhibit A to Ordinance No. 48, Series of 2007, as a
potential historic resource; and
WHEREAS, Section 26.415.025(E) of the Municipal Code states that, during the negotiation
period set forth in the Code, "the Community Development Director shall confer with the
Historic Preservation Commission, during a public meeting, regarding the proposed building
permit and the nature of the Potential Historic Resource. The property owner shall be provided
notice of this meeting with the Historic Preservation Commission;" and
WHEREAS, the property owners were notified of the Historic Preservation Commission
meeting; and
WHEREAS, Amy Guthrie, in her staff report to HPC dated October 28, 2009, performed an
analysis of the building and the impact of the proposed alterations to the potential historic
significance of the building and found that the criteria for landmark designation are met; and
WHEREAS, at their regular meeting on October 28, 2009, the Historic Preservation
Commission considered the application and approved a recommendation to City Council by a
vote of 5-0; and
WHEREAS, the City Council finds that the proposal meets or exceeds all applicable development
standards and that the approval of the development proposal is consistent with the goals and
elements of the Aspen Area Community Plan; and,
WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion
of public health, safety, and welfare.
630 E. Hyman Avenue
Ordinance #48 Negotiation
Page 1 of 4
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
Section 1: Historic Designation
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code,
Aspen City Council hereby approves Historic Designation for 630 E. Hyman Avenue, Lots R and
S, Block 99, City and Townsite of Aspen, Colorado.
Section 2: Ordinance #48, Series of 2007 Negotiation
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code,
Aspen City Council hereby grants the following Land Use entitlements, conditioned upon the
voluntary landmark designation of 630 E. Hyman Avenue, Lots R and S, Block 99, City and
Townsite of Aspen, Colorado and the issuance of a Development Order to be granted by the
Historic Preservation Commission, following Final Major Development and Commercial Design
Review:
1. Council hereby grants a variance of to the allowable FAR for Commercial Uses,
from 1.5:1 to 1.51:1.
2. Council hereby approves an increase in the maximum residential unit size for the
free market unit represented for 630 E. Hyman from 2,000 net livable square feet
to 2,500 net livable square feet, without the requirement to extinguish a TDR.
3. Council hereby approves an increase in the allowable Free-Market Multi-Family
Housing FAR from 0.5:1 to 0.59:1, without provision of affordable housing.
4. Council hereby permits the City's execution of the draft Easement Agreement, or
Right-of--Way Vacation attached hereto as Exhibit for the existing
encroachments into City right-of--way.
5. Council hereby authorizes fee waivers equal to the total amount of cash-in-lieu
payment required for satisfaction of school land dedication requirements, less
standard Park Dedication and TDM fee waivers for historic landmarks. The
additional waiver to be provided shall total $31,049.
6. Council hereby grants five years vested rights from the date of issuance of a
development order.
Section 3: Severability
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
630 E. Hyman Avenue
Ordinance #48 Negotiation
Page 2 of 4
Section 4: Existin¢ Litigation
This ordinance shall not have any effect on existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances amended as herein
provided, and the same shall be construed and concluded under such prior ordinances.
Section 5: Vested Rights
The Land Use entitlements granted herein shall be vested for a period of five (5) yeazs from the date
of issuance of a development order, following Final Major Development and Commercial Design
Reviews by the Historic Preservation Commission. However, any failure to abide by any of the
terms and conditions attendant to this approval shall result in the forfeiture of said vested
property rights. Unless otherwise exempted or extended, failure to properly record all plats and
agreements required to be recorded, as specified herein, within 180 days of the effective date of
the development order shall also result in the forfeiture of said vested property rights and shall
render the development order void within the meaning of Section 26.104.050 (Void permits).
Zoning that is not part of the approved site-specific development plan shall not result in the
creation of a vested property right.
No later than fourteen (14) days following final approval of all requisite reviews necessary to obtain
a development order as set forth in this Ordinance, including Final Major Development and
Commercial Design Reviews by the HPC, the City Clerk shall cause to be published in a newspaper
of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising
the general public of the approval of a site specific development plan and creation of a vested
property right pursuant to this Title. Such notice shall be substantially in the following form:
Notice is hereby given to the general public of the approval of a site specific development plan, and
the creation of a vested property right, valid for a period of five (5) yeazs, pursuant to the Land Use
Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the
Following described property: 630 E. Hyman Avenue, Lots R and S, Block 99, City and Townsite
of Aspen, Colorado.
Nothing in this approval shall exempt the development order from subsequent reviews and
approvals required by this approval of the general rules, regulations and ordinances or the City of
Aspen provided that such reviews and approvals are not inconsistent with this approval.
The approval granted hereby shall be subject to all rights of referendum and judicial review; the
period of time permitted by law for the exercise of such rights shall not begin to run until the date
of publication of the notice of final development approval as required under Section
26.304.070(A). The rights of referendum shall be limited as set forth in the Colorado
Constitution and the Aspen Home Rule Charter.
Section 6: Public Hearing
A public hearing on the ordinance shall be held on the 7`h day of December, 2009, in the City
Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (I S) days prior to which hearing a
630 E. Hyman Avenue
Ordinance #48 Negotiation
Page 3 of 4
public notice of the same was published in a newspaper of general circulation within the City of
Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the day of , 2009.
Michael C. Ireland, Mayor
ATTEST:
Kathryn Koch, City Clerk
FINALLY, adopted, passed and approved this day of , 2009.
Michael C. Ireland, Mayor
ATTEST:
Kathryn Koch, City Clerk
APPROVED AS TO FORM:
John V/orcester, City Attorney
630 E. Hyman Avenue
Ordinance #48 Negotiation
Page 4 of 4
b,
MEMORANDUM
TO: Mayor Ireland and Aspen City Council ~
THRU: Chris Bendon, Community Development Director 1 ~ IA
RE: South Aspen Street Subdivision/PUD - Extension~of Vested Rights
Resolution - 96, Series 2009.
HEARING
DATE: December 7, 2009
SUMMARY:
At the heazing on this item on November 17~', a resolution was adopted extending the vested
rights for the South Aspen Subdivision projects -also known as the "townhomes project."
The Applicant subsequently requested City Council reconsider the wording of the adopted
resolution. The Council agreed to reconsider the wording and scheduled the item on
tonight's agenda.
Attached is a revised resolution. The Applicant is comfortable with the revised language as
proposed.
ORIGINAL WORDING FOR CONDITION NO. 1:
This extension is for the sole purpose of enabling the continued review of the "COWOP"
application for an alternate development plan on this site vis-a-vis lodging and fractional
ownership uses. In the event the "COWOP" land use application for alodging/fractional
ownership development on this property is approved and becomes a vested property right,
including any time necessary for a public vote or referendum, the vested rights associated
with the "townhomes project" approved pursuant to Ordinance 32, Series of 2003, shall be
vacated and considered null and void. In the event the "COWOP" land use application for a
lodging/fractional ownership development on this property is not approved or is withdrawn,
the vested rights associated with the "townhomes project" approved pursuant to Ordinance
32, Series of 2003, shall remain valid for twenty-four additional months from the date of
such denial or withdrawal or through January 28, 2013, whichever date is later. A six-month
period of inactivity shall constitute a withdrawal of the application.
REVISED WORDING FOR CONDITION NO.1:
This extension is for the sole purpose of enabling the continued review of the "COWOP"
application for an alternate development plan on this site vis-a-vis lodging and fractional
ownership uses. At the time the "COWOP" land use application for alodging/fractional
ownership development on this property is either approved, not approved, or is withdrawn,
including any time necessary for a public vote or referendum, the vested rights associated
with the "townhomes project" approved pursuant to Ordinance 32, Series of 2003, shall
remain valid for twenty-four additional months from the effective date of such action or
through January 28, 2013, whichever date is later. A six-month period of inactivity shall
constitute a withdrawal of the application.
ATTACHMENTS:
Resolution No. 96, with revised text
Exhibit A -email from John Sarpa
RESOLUTION N0.96
(Series of 2009)
A RESOLUTION OF THE ASPEN CITY COUNCIL APPROVING AN
EXTENSION OF THE VESTED RIGHTS GRANTED BY ORDINANCE N0.32,
SERIES OF 2003, FOR THE SOUTH ASPEN STREET SUBDPVISION/PUD
APPROVAL, BEING A PARCEL OF LAND DESCRIBED AS PARCELS 1, 2, AND 3,
OF THE SOUTH ASPEN STREET SUBDIVISION/PUD, CTTY AND TOWNSITE OF
ASPEN, PITHIN COUNTY, COLORADO.
WHEREAS, the Community Development Department received an application
from Aspen Land Fund II, LLC, represented by Sunny Vann, of Vann and Associates,
requesting approval of a five-year extension of the vested rights granted for the South
Aspen Street Subdivision/ PUD pursuant to Ordinance No. 32, Series of 2003; and,
WHEREAS, City Council adopted Ordinance No. 32, Series of 2003, which
approved asubdivision/PUD and awazded Vested Property Rights status for the
development of fourteen (14) free-mazket residential units and seventeen (17) affordable
housing units until July 28, 2006; and,
WHEREAS, the statutory vested rights for the project were subsequently
extended via the adoption of City Council Resolution No. 9, Series of 2008, to July 28,
2009, and then via resolution No. 9, Series of 2009, to January 28, 2011; and,
WHEREAS, the subject property is described as Lots 1, 2, and 3, of the South
Aspen Street Subdivision/Planned Unit Development as described on the subdivision plat
thereof recorded as reception number 537080 in Book 83, Page 50, with the Pitkin
County Clerk and Recorder; and,
WHEREAS, pursuant to Section 26.308.010 Vested Property Rights of the Land
Use Code, City Council may adopt a resolution granting an extension of vested rights
after a duly noticed public hearing; and,
WHEREAS, the Community Development Director has reviewed the application
and has recommended approval of the extension of vested rights for the South Aspen
Street Subdivision/ PUD; and,
WHEREAS, the Aspen City Council has reviewed and considered the requested
extension of vested rights for the South Aspen Street Subdivision/ PUD 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 fmds that the extension of vested rights proposal
meets or exceeds all applicable land use standazds and that the approval of the extension of
City Council Resolution No. 96,
Series of 2009. Page 1
vested rights proposal, with conditions, is consistent with the goals and elements of the
Aspen Area Community Plan; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary
for the promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN,
COLORADO,THAT:
Section 1•
The Aspen City Council does hereby extend to January 28, 2016, the statutory vested
rights as approved by Ordinance No. 32, Series of 2003, for pazcels 1, 2, and 3, of the
South Aspen Street Subdivision/PUD, City and Townsite of Aspen for the South Aspen
Street Subdivision/PUD with the following condition:
1. This extension is for the sole purpose of enabling the continued review of the
"COWOP" application for an alternate development plan on this site vis-a-vis
lodging and fractional ownership uses. At the time the "COWOP" land use
application for alodging/fractional ownership development on this property is
either approved, not approved, or is withdrawn, including any time necessary for
a public vote or referendum, the vested rights associated with the "townhomes
project" approved pursuant to Ordinance 32, Series of 2003, shall remain valid for
twenty-four additional months from the effective date of such action or through
January 28, 2013, whichever date is later. A six-month period of inactivity shall
constitute a withdrawal of the application.
2. The statutory vested property right shall not preclude the applications or
regulations which are general in nature and are applicable to all property subject
to land use regulation by the City of Aspen including, but not limited to, building,
fire, plumbing, electrical and mechanical codes, and all adopted impact fees. The
developer shall abide by any and all such building, fire, plumbing, electrical and
mechanical codes, and impact fees that are in effect at the time of building
permit, unless an exemption therefrom is granted in writing.
Section 2•
Due to the Applicant's voluntary participation in the COWOP process for alodging /
fractional ownership development on this site and its suspension to date of the building
permit process for the townhomes project, the Applicant in its discretion may reactivate its
building permit application at any time prior to the expiration date described above.
Section 3:
All material representations and commitments made by the applicant pursuant to the
development proposal approvals as herein awarded, whether in public hearing or
documentation presented before the 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.
City Council Resolution No. 96,
Series of 2009. Page 2
Secfion 4•
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 5•
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the
validity of the remaining portions thereof.
Section 6•
A duly noticed public hearing on this Resolution was held on the 9c' day of November,
2009, at 5:00 PM in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
FINALLY, resolved, adopted, passed, and approved by a to vote on this
day of , 2009.
Approved as to form: Approved as to content:
John P. Worcester, City Attorney Michael C. Ireland, Mayor
Attest:
Kathryn S. Koch, City Clerk
City Council Resolution No. 96,
Series of 2009. Page 3
Page 1 of 1
Chris Bendon r~ ~ 'h~~
From: Krystal England [KrystalEngland@centurion-partners.com] '~
Sent: Monday, November 30, 2009 11:21 AM~~+ jj~ 1~..,~ _ ~~~i~
To: Chris Bendon l ~"~7~
Cc: John Sarpa
Subject: FW: South Aspen Street townhomes vested rights extension
For inclusion in the packet for the next meeting...
From: Krystal England
Sent: Monday, November 23, 2009 9:37 AM
To: jennifer.phelan@ci.aspen.co.us
Cc: John Sarpa; 'G7Heaphey@hollandhart.com'
Subject: South Aspen Street townhomes vested rights extension
[Jennifer, below please find text of a letter from John Sarpa to City Council regarding reconsideration of the
ordinance that was approved last Tuesday afternoon. Please circulate this to the Council as soon as possible in
advance of the meeting tonight. Thanks, Krystal]
Dear Mayor and City Council:
The intent of this letter is to confirm our understanding of the result of last week's discussions regading the extension of the
vested rights for the town homes on South Aspen St. During our hearing on Tuesday, Nov. 17, much of our discussion was
focused on the amount of time AFTER a Cowop hotel project is approved and BEFORE it can be built. We had requested a
minimum of three yeazs extension of the town home vested rights after such an approval, and it was our understanding that
after the Council members' discussion of the matter, it was agreed to extend the vested rights for up to 2 years after the
approval, denial or withdrawal of the hotel project. Because there was some question as to this understanding, we have asked
for a confirmation of this outcome.
Since as was discussed in detail last week, the entire purpose of the hearing for us was to seek an extension of the previous
vested rights deadline of January 2011 in order to proceed with the hotel approvals, we of course would not agree to any
condition that might shorten that time frame. If we had agreed that upon approval of the hotel project the town home vested
rights would simultaneously expire, it would in fact shorten the previous deadline if the hotel were approved at anytime next
year (2010). Since such an approval is at least a possibility, we would not be able to agree to that condition. We had
anticipated and understood that the wording for the final vested rights extension resolution would reflect an extension for up
to 2 yeazs after any disposition of the hotel efforts/approvals (approval, denial or withdrawal) and no later than 2013.
The hotel Cowop has made good progress and there is more to be done before the group's work comes before the Council.
We sincerely appreciate the Council's assistance in helping that critical process proceed.
Sincerely, John Sarpa
Krystal England
Centurion Partners LLC
300 South Spring St, Suite 301
Aspen, CO 81611
o: 970.544.8336
f: 970.544.8271
c: 970.343.0731
krystalengland@centu rion-partners. com
11/30/2009
~C .
MEMORANDUM
TO: Mayor Ireland and City Council
FROM: Sara Adams, Senior Planner
THRU: Jennifer Phelan, Community Development Deputy Director ~'~
RE: The Wheeler Opera House Expansion (320 East Hyman Street) -Conceptual
Planned Unit Development -Resolution No. 78, Series 2009 -Public Hearin¢
(continued from September 28, 2009 and October 26, 2009)
MEETING
DATE: December 7, 2009
SUMMARY:
Council is asked to approve a Conceptual PUD plan that varies the allowed height in the
Commercial Core Zone District from the allowable 42' to 51'2" to construct an access stairway
for the sole purpose of maintaining the green roof and solar panels proposed for the rooftop.
At the September 28`h hearing for the addition to the Wheeler Opera House, Council expressed
concern over financial aspects of the proposed project and the architectural direction of the
addition and its relationship to the historic Wheeler Opera House.
On October 26, 2009, the applicant submitted three new fagade iterations for the addition in an
effort to illustrate three different architectural avenues for the project. Council requested more
financial information regarding projected construction costs, long term sustainability for the
Wheeler and questioned some programmatic decisions (i.e. why locate the offices on the third
floor?) Council expressed a need for further development of the exterior fagade in relationship
to both the context of the block and the historic Wheeler Opera Ilouse.
STAFF RECOMMENDATION:
The Wheeler project team and Community Development Staff propose a series of meetings over
the next few months to discuss specifics of the project in an effort to slow down the Conceptual
Review to allow sufficient time for Council and the public to feel comfortable and confident in
both the process and the project at a Conceptual level. The following schedule is proposed for
City Council review. All of the meetings below will be public hearings.
December 7, 2009 Financial Discussion: estimates for construction costs, excavation of the
site, address some programmatic issues, pro forma, etc.
January 25, 2010 Architecture Discussion: focus on the architectural direction of the
addition, follow up on comments from October 26, 2009 public hearing.
February 22, 2010 Financial follow-up Discussion from December 7`h meeting, long term
operational projections, etc.
March 22, 2010 Review Resolution for Conceptual PUD, possibly continue to April if
needed.
The Wheeler project team has prepared financial information that is attached to this memo for
discussion on December 7`h. The Land Use Code criteria for Conceptual PUD do not address
finances, and as such, Staff did not prepare a new memo.
RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE:
"I move to continue the public hearing for Resolution No. 78, Series of 2009 to January 23,
2010."
CITY MANAGER COMMENTS:
ATTACHMENTS:
A -Conceptual PUD Review Criteria, [provided in September 28, 2009 packet.]
B -Planning and Zoning Commission Resolution 12, Series of 2009, [provided in September 28,
2009 packet.]
C -Planning and Zoning Commission and Historic Preservation Commission meeting minutes
dated June 24, 2009, July 8, 2009 and August 4, 2009, [provided in September 28, 2009
packet.]
D - DRC comment, September 28, 2009, [provided in September 28, 2009 packet.]
E -Proposed Drawings, October 15, 2009, [provided in October 26, 2009 packet.]
F -Cost Analysis, [provided in October 26, 2009 packet.]
G =Updated financial information from Wheeler staff.
TO: Mayor Ireland and Council
FROM: Gram Slaton, Executive Director
THROUGH: Randy Ready, Assistant City Manager
DATE: 19 November 2009
RE: Wheeler Conceptual Approval -Continuing Issues
SUMMARY:
This memo is intended to answer questions raised by City Council members and members of the
general community during the October 26, 2009, presentation by the Wheeler team in support of
conceptual approval for the expansion of the Wheeler Opera House.
DISCUSSION:
In an effort to answer questions and inquiries in a timely manner regarding the possible Wheeler
Opera House expansion, Wheeler staff has prepazed responses to the following:
• The number of actual usage days by the Wheeler Film Society over the recent
past;
Further refinement of operating pro forma numbers relative to the expansion
facility only;
The need for the location of Wheeler offices at the second-floor level of the
proposed expansion facility.
In addition, Wheeler staff has revised the previously-submitted Needs Assessment Memo
(attached separately) with additional information on the following:
• Data on winter holiday visitors;
• Diversity of programming mix;
• Refinement of the needs assessment, through a survey of existing venue spaces in
Aspen;
• Data on compazative venues, including estimated/actual usage days, and subsidy
percentage;
• Draft of Programming Vision Statement.
Wheeler Film Society -actual usage days
Community members have asked if there really is a legitimate need for a second Wheeler stage
through an expansion facility, given the perceived high level of utilization by the Wheeler Film
Society .
The table below shows actual usage days by the Wheeler Film Society over the past two
completed yeazs, as well as the current year through October. The highest number of usage days
was recorded in 2008, at 146 usage days. Since the Wheeler Film Society is only given dates that
are lefr unfilled by other user groups, this number indicates that there were 219 dates in 2008 that
were booked for fast-priority business, or 60% of the total inventory available in that year. It is
also noteworthy that, because 2008 was a national election year with a profile unprecedented in
over 40 years (i.e., no incumbent or vice-president candidate in the presidential election),
Wheeler staff intentionally reduced live bookings for the eight-week fall off-season period.
WHEELER FILM SOCIETY
ACTUAL WHEELER USAGE
2007 2008 2009
Total Number Of Screenings 154 192 156
Total Number of Usage Days 120 146 148
Average # of ScreeningslUsage Day 1.28 1.32 1.05
Even in the grips of a national recession that has significantly dampened the local economy, in
2009 (actuals through October, projected dates and screenings through December) the Wheeler
Film Society had only been granted 148 booking days, leaving 217 days (59%) of the available
inventory for the Wheeler's first-priority business.
Staff suggests that a more representative year would be 2007, when the Wheeler Film Society
was granted 120 usage days, indicating 67% of the available inventory was used for first-priority
business.
In June 2007, when the Wheeler Film Society was granted athree-year contractual-services
agreement, it was the opinion of City Council that WFS programming was an appropriate use of
the Wheeler for the purpose of filling days, such as Mondays and Tuesdays, that even during the
high season are not typically sought out for first-priority business, such as live presentations,
lectures, and film festivals. Also, the Wheeler Film Society has been able to "shaze" the Wheeler
on certain dates so that management can get adouble-use of the venue, such as in January when
the Aspen Center For Physics lectures are booked for alate-afrernoon/early-evening usage that
frees up the hall in time fora 7:30pm movie screening.
Wheeler staff concludes that Wheeler Film Society usage of otherwise dark, mostly weekday
nights is an appropriate use of the facility and does not in any way suggest that an expansion
theatre is not needed. The heaviest use of the Wheeler (or any live performance space anywhere
in the U.S.) is on Thursday through Sunday evenings, and these typically are dates not available
for Wheeler Film Society bookings.
Further refinement of numbers relative to the expansion facility only
Wheeler staff worked through several iterations of revenue and expense projections for the
proposed Wheeler expansion, as a first phase of measuring the impact of an expansion facility on
total operations, as well as an exercise in seeing if the expansion as proposed (with all program
elements) would perform positively or negatively as a stand-alone enterprise. Wheeler staffs
approach was conservative in nature, and concentrated purely on existing courses of business
without full consideration of all new opportunities that might be open to the Wheeler through the
addition of such a facility.
Included as Attachment B is a second draft of operating pro forma figures for the expansion
facility. Changes and new entries are notated in blue. Council attention is directed to the
following additions and changes:
• Additional Bar Sales. Staff ran a variety of historic numbers relative to different
show types and film programs that would likely transition to the expansion
theatre, increasing the average dollar volume per event and better reflecting
likely revenue-generation potential.
• Flexible Space Rental. This figure now includes revenue potential from a small
number of meetings and other short-term usage not factored into the original
numbers.
• Theater Space Rental -Commercial. Similarly, consideration was not
adequately given to the revenue potential possible from day usage of the theater
for commercial purposes. There is demand for affordable medium-sized meeting
space in the Roaring Fork Valley, and thus this is a fair expectation for partial or
full-day use for conferences, retreats, lectures, etc.
• Technical Rental Services. This figure is impacted by higher usage of the new
venue(s) that require a technical presence, thereby increasing the revenue
potential for this line.
• Stagehand/Other Tech (expense). This cost figure is impacted by the increased
usage noted in the above item.
The overall outcome of this additional analysis is that it adds about $8,500 (9.4%) per year to the
average of the three scenarios over the draft previously shown to Council. This further
demonstrates that a Wheeler expansion would prove a net positive to operations.
The need for the location of Wheeler oj~ces at the second-floor level
Several council members asked for clarification about why above-ground space in the proposed
expansion should be used to accommodate the relocation of Wheeler administrative offices.
Wheeler staff will be in attendance at the December 7'" meeting to explain how this location is
key to an effective and efficient facility as pertains to their departments, and to respond to any
further questions that council members might have.
However, the best answer to this question may be as simple as the statement, "Ours is a business
where human beings are the product. " The responses that Council will hear all stem from a
single point of focus, that being that our emergent problems and immediate responses derive from
the complicated nature and needs of clients. An overview of points Wheeler staff would make
towards this end include:
Appropriate placement of staff near the
majority of its work will be conducted;
A need for quick access throughout
preparation;
historic stage and lobby area, where the
the performance day, during event
A need for the shortest response time in the case of emergencies, both backstage
and in the house.
SUMMARY AND RECOMMENDATION:
Wheeler staff understands that City Council needs to very closely scrutinize the viability of a
Wheeler expansion before granting conceptual approval, and wishes to support this due diligence
through timely response to all issues. While staff will continue to work on other components,
such as refinement of an integrated long-range financial plan for Council review, we hope to help
Council in its decision-making through monthly check-ins where emerging issues can be
addressed quickly and efficiently.
Wheeler staff remains of the opinion that a Wheeler expansion remains a vital need in the Aspen
arts community, and also would present an exceptional multi-faceted public amenity space that
would benefit the Aspen community in a variety of ways.
CITY MANAGER COMMENTS:
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NOTES FOR FINANCIAL PROJECTIONS
FOR WHEELER OPERA HOUSE EXPANSION
DECEMBER 2009
All notes are applicable to the "ANTICIPATED" column of the projection financials.
Information relative to the revised Pro Forma are in italics and bolded
REVENUES:
1. Ticket Sales. This represents sales for Wheeler-presented events only.
The profile includes 10 stand-alone concerts/shows, and 20 events that are
part of aWheeler-produced festival (such as the Rooftop Comedy Festival
or MountainSummit).
2. Processing Fees. Applicable to all phone and Internet ticket sales.
Factored at 30 transactions per event x $4 per transaction x 100 shows.
3. Rental Percentage/Other Box Office. This is the 5% royalty payment that
the Wheeler assesses to all rental event sales. Factored at 50 rentals x
$100 per rental. Other Box Office includes reimbursement for ticket stock
and credit card fees, factored at 50 rentals x $50 per rental.
4. Additional Bar Sales. Factored at 100 events x $100 per event.
S. Flexible Space Rental. This is for the open configuration room that could
be used for meetings, rehearsal space, break-out activities, etc. Factored
at 200 hours x $25/hour.
6. Space Rental -Theatre. This is for the main new audience chamber.
Revised numbers include anticipation of commercial rentals for
medium-sized meetings and seminars, etc. Factored at 50 rentals x $150
per rental x 1.25 for multiple-day rentals for not for profits, and 20 rentals
x $200 per rental for commercial use.
Technical Rental Services. This recovers the cost of Wheeler-hired
personnel for stage/technical issues. Factored at four hands x $25 per hour
x six hours x 50 rentals. It is anticipated that some rentors will not need
hands at all times during their engagements; thus the lower projected
usage. Revised numbers include anticipation of commercial rentals, at 2
hands x $25/hour x 4 hours x 20 rentals.
8. Clean Un/Other. Basic cleaning service, plus reimbursement for house
items such as tape, water, or use of house equipment. Cleaning is all that
is assessed here, at $50 per cleaning x 50 cleanings.
9. Movie Percentaee. Based on current arrangement with the Wheeler Film
Society. Projects 100 screenings and an average attendance of about fifty.
10. Credit Cazd/Ticket Stock Reimbursements. Limited to movie activity
described above. Factored at $10 per screening x 100 screenings.
11. Additional Lease Revenue. This pertains to the volume of space that we
expect will become available by vacating Wheeler operations into the
expansion facility. The present box office space is an exceptional retail
location, and the basement space is assessed at a low cost per square foot
in order to be attractive to either anot-for-profit group (such as Aspen
Public Radio) or anessentially-serving business.
EXPENSES:
Artist/Companv Fees. This represents the contract cost for Wheeler-
presented events only. The profile includes 10 stand-alone concerts/shows
(at $2,000 per show), and 20 events that aze part of aWheeler-produced
festival (such as the Rooftop Comedy Festival or MountainSummit, at
$1,500 per show).
Artist/Company Additional. This represents a summary amount for add-
on costs (hotel, travel, catering) for Wheeler-presented events only (at
$500 per show). The profile includes 10 stand-alone concerts/shows, and
20 events that aze part of aWheeler-produced festival (such as the Rooftop
Comedy Festival or MountainSummit, at $300 per show).
3. Box Office Expenses/Bank Charges. This represents a summary amount
for costs such asper-diem ticket sellers, ticket stock, and Mastercazd/Visa/
American Express fees. Factored at $65 per show x 100 shows.
4. Additional F/T Technician. One full-time Stage Technician II is expected
to be needed as additional staff after the expansion. The cost is based on a
midpoint in the current range for this position (now hourly part-time).
Stagehands/Other Tech. Factored at two additional hands per show x
$23 per hour x four hours x 50 events. Revised numbers include
anticipation of commercial rentals, at 2 hands x $23/hour x 4 hours x 20
rentals.
6. Electric/Gas/Water. Project team has been chazged with making the
expansion azero-sum additional carbon footprint, through better utility
systems for the entire Wheeler complex. Estimates here are factored at a
percentage of current costs, assuming the "worst-case" that the team
cannot meet its goal and the utility usage becomes proportionate to that
being used at the current time.
7. Waste Removal. Factored at an additional $500 per month, due to higher
Wheeler and lease-space usage.
8. Custodial Supplies. Factored at an additional $100 per month.
9. Maintenance and Renair. Factored at an additional $200 per month.
10. Additional F/T Building Tech. One full-time Building Technician I is
expected to be needed as additional staff after the expansion. The cost is
based on the current rate paid for this full-time position.
11. Front Of House Supplies/Cost Of Sales. Factored at 40% of baz revenue.
12. Additional Bar Personnel. Factored at two baz personnel x one hour x 100
events. Bar personnel are expected to shuttle back and forth between the
two theatre bars, and thus aze not anchored to a fixed station in the
expansion.
FINANCIAL IMPACT PROJECTION
WHEELER OPERA HOUSE EXPANSION
23 November 2009 Draft
Worst Best
Anticipated Case Case
REVENUES
Ticket Sales
Processing Fees
Rental Percentage/Other Box Office Charges
Additional Bar Sales
Flexible Space Rental
Space Rental -Theatre
Space Rental - 2nd Floor Lobby
Technical Rental Services
Clean-Up/Other
Movie Percentage
Credit Card/Ticket Stock Reimbursement
Additional Lease Revenue
$80,000 $20,000 $110,000
$12,000 $4,800 $19,200
$7,500 $4,500 $11,250
$10,000 $3,600 $15,000
$5,000 $2,500 $7,500
$13,375 $6,500 $22,875
$8,000 $2,000 $12,500
$34,000 $11,000 $51,000
$2,500 $1,500 $3,750
$5,000 $7,500 $3,000
$1,000 $1,500 $600
$171,000 $109,000 $187,000
$349,375 $174,400 $443,675
EXPENSES
Artist/Company Fees
Artist/Company Additional
Box Office Expenses/Bank Charges
Additional FIT Technician
Stagehands/Other Tech
Electric
Gas
Water
Waste Removal
Custodial Supplies
Maintenance and Repair
Additional FIT Building Tech
Front Of House Supplies/Cost of Sales
Additional Bar Personnel
($50,000) ($50,000) ($50,000)
($11,000) ($11,000) ($11,000)
($6,500) ($3,900) ($7,800)
($62,400) ($62,400) ($62,400)
($13,380) ($3,780) ($19,100)
($12,000) ($24,000) $0
($3,000) ($6,000) $0
($4,800) ($4,800) ($4,800)
($6,000) ($6,000) ($6,000)
($1,200) ($1,200) ($1,200)
($2,400) ($2,400) ($2,400)
($46,176) ($46,176) ($46,176)
($4,000) ($1,440) ($6,000)
($3,000) ($1,800) ($3,600)
($225,856) ($224,896) ($220,476)
NET -REVENUES OVER EXPENSES $123,519 ($50,496) $223,199
AVERAGE OF THREE SCENARIOS: $98,741
WHEELER OPERA HOUSE EXPANSION
BUDGET DETAIL WORKSHEET
FISCAL PROJECTION
WORST BEST
DEPT: BOX OFFICE ANTICIPATED CASE CASE
REVENUES
Processing Fees $12,000.00 $4,800.00 $19,200.00
Rental Percentage/Other Box Office Charges $7,500.00 $4,500.00 $11,250.00
EXPENSES
Box Office ExpenseslBank Charges ($6,500.00) ($3,900.00) ($7,800.00)
TOTAL: $13,000.00 $5.400.00 $22.650.00
NOTES:
ANTICIPATED
Processing Fees figured at 30 orders per show @ $41ea x 100 shows
Rental Percentage figured on 50 rentals x $100 per rental
Other Box Office Charges figured on 50 rentals x $50 per rental
Box Office Expenses/Bank Charges figured on 100 shows x $65 per show,
and includes the cost of box office labor, stock and printing, and MCNisa
WORST CASE
Processing Fees figured at 20 orders per show @ $41ea x 60 shows
Rental Percentage figured on 30 rentals x $100 per rental
Other Box Office Charges figured on 30 rentals x $50 per rental
Box Office ExpenseslBank Charges figured on 60 shows x $65 per show,
and includes the cost of box office labor, stock and printing, and MCNisa
BEST CASE
Processing Fees figured at 40 orders per show @ $4/ea x 120 shows
Rental Percentage figured on 75 rentals x $100 per rental
Other Box Office Charges figured on 75 rentals x $50 per rental
Box Office Expenses/Bank Charges figured on 120 shows x $65 per show,
and includes the cost of box office labor, stock and printing, and MCNisa
WHEELER OPERA HOUSE EXPANSION
BUDGET DETAIL WORKSHEET
FISCAL PRUJECI IUN
WORST BEST
DEPT: FRONT OF HOUSE ANTICIPATED CASE CASE
REVENUES
Additional Bar Sales $10,000.00 $3,600.00 $15,000.00
Space Rental - 2nd Floor Lobby $8,000.00 $2,000.00 $12,500.00
EXPENSES
Front Of House Supplies/Cost of Sales ($4,000.00) ($1,440.00) ($6,000.00)
Additional Bar Personnel ($3,000.00) ($1,800.00) ($3,600.00)
TOTAL: $11.000.00 2$ ,360.00 $17,900.00 162.7%
NOTES:
ANTICIPATED
Additional Bar Sales figured at 100 events x $100 per event
Space Rental - 2nd Floor Lobby figured at 40 rentals at $200
Cost of Sales/Supplies figured at 40% of Additional Bar Sales
Additional Bar Personnel figured at $151hr x 2 by x 100 events
WORST CASE
Additional Bar Sales figured at 60 events x $60 per event
Space Rental - 2nd Floor Lobby figured at 10 rentals at $200
Cost of Sales/Supplies figured at 40% of Additional Bar Sales
Additional Bar Personnel figured at $15/hr x 2 by x 60 events
BEST CASE
Additional Bar Sales figured at 120 events x $125 per event
Space Rental - 2nd Floor Lobby figured at 50 rentals at $250 (increase in rate due to high demand)
Cost of SaleslSupplies figured at 40% of Additional Bar Sales
Additional Bar Personnel figured at $151hr x 2 by x 120 events
WHEELER OPERA HOUSE EXPANSION
BUDGET DETAIL WORKSHEET
FISCAL PRVJEGTIVN
WORST BEST
DEPT: BUILDING ANTICIPATED CASE CASE
REVENUES
[None]
EXPENSES
Electric ($12,000.00) ($24,000.00) $0.00
Gas ($3,000.00) ($6,000.00) $0.00
Water ($4,600.00) ($4,600.00) ($4,800.00)
Wasle Removal ($6,000.00) ($6,000.00) ($6,000.00)
Custodial Supplies ($1,200.00) ($7,200.00) ($1,200.00)
Maintenance and Repair ($2,400.00) ($2,400.00) ($2,400.00)
Additional FR Building Tech/Salary ($38,480.00) ($36,480.00) ($38,480.00)
Additional FR Building TechfTaxes & Benefits ($7,696.00) ($7,696.00) ($7,696.00)
TOTAL: ($75.578.001 ($90.576.001 ($60 576.001 80.2NO
NOTES:
Electric fgured at an additional $2,000/mo "
Gas fguretl at an additional $500/mo'
Water fgured at an additional $400/mo"
Waste removal fgured at an additional $500/mo
Custodial supplies figuretl at an additional $100/mo
Maintenance and Repair fgured at an additional $200/mo
Add'I FT Bldg Tech fgured at $18.50/hr x 2080 hrs
Taxes & BeneFlts fgured at 20°k of Add'I FT Tech Salary
"`NOTE "' Project architects have been charged with making fhe expansion
a zero-sum additional carbon footprint for the overall Wheeler These
numbers reflect best-case impact o/zero, worstcase impact of numbers parallel
to current Wheeler usage, and a mitltlle position of hallway in behveen.
WHEELER OPERA HOUSE EXPANSION
BUDGET DETAIL WORKSHEET
FISCAL PROJECTION
WORST BEST
DEPT: PROGRAMMING ANTICIPATED CASE CASE
REVENUES
Ticket Sale51' $40,000.00 $10,000.00 $50,000.00
Ticket Sales2" $40,000.00 $10,000.00 $60,000.00
EXPENSES
ArtisVCOmpany Fees 1 ($20,000.00) ($20,000.00) ($20,000.00)
ArtisUCompany Fees 2 ($30,000.00) ($30,000.00) ($30,000.00)
ArtisVCOmpany Additionall ($5,000.00) ($5,000.00) ($5,000.00)
ArtisVCompany Addi6onal2 ($6,000.00) ($6,000.00) ($6,000.00)
TOTAL: $19.000.00 ($41.000.00) $49.000.00 257.9%
NOTES:
ANTICIPATED
' Based on 10 Tom Rush-type events ($2,000 fee + $500 add'I; $4,000 box office
"Based on 20 festival events (Rooftop; MountainSummit) at $1,500 fee +$300 add'I; $2,000 box office
WORST CASE
' Basetl on 10 Tom Rush-type events ($2,000 fee +$500 add'I; $1,000 box office
"Based on 20 festival events (ROOflop; MountainSummit) at $1,500 fee+$300 add'I; $500 box office
BEST CASE
`Basetl on 10 Tom Rush-type events ($2,000 fee + $500 atltl'I; $5,000 box offce
" Based on 20 festival events (Rooftop; MounlainSummit) at $1,500 fee+ $300 add'I; $3,000 boz office
WHEELER OPERA HOUSE EXPANSION
BUDGET DETAIL WORKSHEET
FISCAL PROJECTION
WORST BEST
DEPT: MOVIE SCREENINGS (WFS/OTHER) ANTICIPATED CASE CASE
REVENUES
Ticket Percentage and Set-Up Fees $5,000.00 $7,500.00 $3,000.00
Credit Cartl Reimbursement $1,000.00 $1,500.00 $600.00
EXPENSES
[None]
TOTAL: 6$ .000.00 9 000.00 3~ 600.00 60.0%
NOTES:
ANTICIPATED
Ticket Percentage and Set-Up Fees basetl on 100 screenings ~ $25/set-up and $25/fee per screening
Credit Card Reimbursement figured at $10 screening x 100 screenings
WORST CASE
Ticket Percentage and Set-Up Fees based on 750 screenings ~ $25/set-up antl $25/fee per screening
Credit Card Reimbursement fgured at $10 screening x 150 screenings
BEST CASE
Ticket Percentage antl Set-Up Fees based on 60 screenings ~ $25/set-up and $25ttee per screening
Credit Card Reimbursement fgured at $10 screening x 60 screenings
"'NOTE: Movie bookings are akvays fallback for non-live usage days; therefore run counter to other assumptions
in Worst Case or Best Case consideration
WHEELER OPERA HOUSE EXPANSION
BUDGET DETAIL WORKSHEET
FISCAL PROJECTION
WORST BEST
DEPT: RENTALS ANTICIPATED CASE CASE
REVENUES
Space Rental -Theatre -Arts/Non-Commercial $9,375.00 $4,500.00 $16,875.00
Space Rental -Theatre -Commercial $4,000.00 $2,000.00 $6,000.00
Flexible Space Rental $5,000.00 $2,500.00 $7,500.00
Technical Rental Services $34,000.00 $11,OOO,DO $51,000.00
Clean-UplOther $2,500.00 $1,500.00 $3,750.00
EXPENSES
[None]
TOTAL: $54,875.D0 $21.500.00 $85,125.00 155.1°k
NOTES:
ANTICIPATED
Space Rental -Arts/Non-Com figured at 50 rentals x $150/rental x 1.25 for multiple rentals
Space Rental -Com figured at 20 rentals x $20D/rental
Flexible Space Rental figured at 200 hours x $25/hour
Tech Rental Services figured at 4 hands x $25lhr x 6 hrs x 50 rentals, Non-Com; 2 hands x $25Ihr x 4 hrs x 20 rentals, Com
Clean-up/Other figured at $501cleaning x 50 rentals
WORST CASE
Space Rental -Arts/Non-Com figured at 30 rentals x $150/rental x 1.0 for multiple rentals
Space Rental -Com figured at 10 rentals x $200/rental
Flexible Space Rental figured at 100 hours x $25/hour
Tull ~~ u o~ra~.ca f~~ui cu of 2 1luliuo n ..~li;i ~~ x ~ hrS .. ~u ro~itd o, Nu~l-~G~ 1, c fiarida ~ S25r'- .. Y rifts i, i 0 ~cilfau, CuIL
Clean-up/Other figured at $50/cleaning x 30 rentals
BEST CASE
Space Rental - ArtslNon-Com figured at 75 rentals x $150/rental x 1.5 for multiple rentals
Space Rental -Com figured at 30 rentals x $200/rental
Flexible Space Rental figured at 30D hours x $25lhour
Tech Rental Services figured at 4 hands x 525/hr x 6 hrs x 50 rentals. Non-Com', 2 hands x $25lhr x 4 hrs x 30 rentals, Com
Clean-up/Other figured at $50/cleaning x 75 rentals
WHEELER OPERA HOUSE EXPANSION
BUDGET DETAIL WORKSHEET
OTHER (LEASE SPACES)
WORST BEST
ANTICIPATED CASE CASE
Additional Lease Space -Street Level $105,000.00
Atltlitional Lease Space -Basement Level $54,000.00
One-Bedroom Unit-Employee Housing $12,000.00
[None]
$70,000.00 $112,000.00
$27,000.00 $83,000.00
$12,000.00 $12,000.00
TOTAL: $171.000.00 $109.000.00 $187.000.00
NOTES:
ANTICIPATED
Atltlitional Lease Space -Street Level (gored at $75/sf x 1,400sf
Additional Lease Space -Basement Level figured at $30/af x 1,8005f
WORST CASE
Additional Lease Space -Street Level fgured at $50/sf x 1,4005f
Additional Lease Space -Basement Level fgured at $15/sf z 1,BOOsf
BEST CASE
Additional Lease Space -Street Level fguretl at $BO/sf x 1,400sf
Additional Lease Space -Basement Level fgured at $35/sf x 1,BOOSf
"' NOTE Valley Fine Art presently leased at $75~si,' Bentley's about $68/sf
WHEELER OPERA HOUSE EXPANSION
BUDGET DETAIL WORKSHEET
FISCAL PROJECTION
WORST BEST
DEPT: TECH ANTICIPATED CASE CASE
REVENUES
[None]
EXPENSES
Additional Full-Time Technician/Salary
($52,000.00)
($52,000.00)
($52,000.00)
Additional Full-Time TechnicianlTaxes & Benefits ($10,400.00) ($10,400.00) ($10,400.00)
Hourly Stagehands - ArtslNon Commercial ($9,200.00) ($1,840.00) ($12,880.00)
Hourly Stagehands -Commercial ($3.680.00) ($1,840.00) ($5,520.00)
Materials and' Reimbursables ($500.00) ($100.00) ($700.00)
TOTAL: ($75.780.00) ($66.180.001 ($81.500.001 107.5%
NOTES:
ANTICIPATED
Add'I FT Tech figured at $25/hr x 2080 hrs
Taxes & Benefits figured at 20% of Add'I FT Tech Salary
Hourly stagehands -Arts/Noncom figured at 2 add'I x $23.00/hr x 4hrs x 50 events
Hourly stagehands -Com figured at 2 add'I x $23.00/hr x 4hrs x 20 events
Materials and Reimbursables figured at $10/rental x 50 rentals
WORST CASE
Add'I FT Tech figured at $25/hr x 2080 hrs
Taxes 8 Benefits figured at 20% of Add'1 FT Tech Salary
Hourly stagehands figured at 2 add'I x $23.00lhr x 4hrs x 10 events
Hourly stagehands -Com figured at 2 add'I x 523.00/hr x 4hrs x 10 events
Materials and Reimbursables figured at $10/rental x 10 rentals
BEST CASE
Add'I FT Tech figured at $25lhr x 2080 hrs
Taxes & Benefits figured at 20% of Add'I FT Tech Salary
Hourly stagehands figured at 2 add'I x $23.00/hr x 4hrs x 70 events
Hourly stagehands -Com figured at 2 add'I x $23.00/hr x 4hrs x 30 events
Materials and Reimbursables figured at $10/rental x 70 rentals
TO: Mayor Ireland and Council
FROM: Gram Slaton, Executive Director
THROUGH: Randy Ready, Assistant City Manager
DATE: 27 November 2009
RE: Summary of Wheeler Opera House Needs Assessments
and Expansion Studies -FIRST REVISION
SUMMARY:
The purpose of this memo is to present in a single document a summary of known Needs
Assessments related to the Wheeler Opera House. As indicated below, there are many well-
documented facility and space needs that can be met by expanding the Wheeler and providing a
better working theatre building that will accommodate the Aspen-area arts community.
Additional information is being~rovided for the December 7 meeting with City Council in this
revised document in order to answer concerns and requests for additional information heard at
the October 26 City Council meeting and from community-member comments. This new
information is included here beginning on Pagee Ten (at the conclusion of the original memo
document .
DISCUSSION:
Expansion of the Wheeler Opera House has been a subject of discussion since at least 1974. The
reasons for an expanded Wheeler can be roughly divided into two categories, which aze
interrelated:
To provide the venue with sufficient squaze footage in order to have a full
inventory of theatre usage, storage, and office space, as well as leasable space
that could be used to support the cost of operations, and
To provide afull-service venue for the Aspen arts community, with sufficient
space and facilities to fully realize their work.
In chronological order, these reports include:
"The Wheeler Plus An ADDroach To The Development Of Performing Arts Facilities For
men And The Roaring Fork Valley, " Arts Development Associates (Minneapolis). October
1979. This master planning document was the culmination of nine months of investigation by
the authors into the entire north-valley arts scene during 1978 and 1979. At 113 pages, it
examines the case for a renovated and expanded Wheeler in the context of a multi-venue plan that
also includes development of the Galena Street Mall area with a 900-seat theatre. Within the
context of these two possible venues, the Wheeler was seen as the more active one, with ayear-
round presence, but also secondary to the proposed 900-seat theatre. According to the summary
note at the beginning of the report, the authors conducted 135 meetings with city representatives,
arts groups, and general public in Aspen, the Roaring Fork Valley, and elsewhere in the state, to
determine the need and possible usage of old and new facilities in Aspen. A further poll was
taken of ski-season guests through a 2,264-piece mailing conducted over the winter months, with
a 32% return rate. Upon development of some facility expansion options, five public workshops
were held in July 1979, with a consensus of opinion measured at the end of the fifth meeting
session, divided into two recommendations:
A need for asmall-to-medium sized facility that would service the needs of a
variety of community arts, educational, and cultural organizations, estimating
approximately 200 nights of usage per annum;
A need for amedium-to-large sized facility that would allow the creation of
impressive series of events for the winter and summer peak season, as well as a
home for an Aspen-based dance company and a possible conference center.
Plans for the Wheeler, based on these meetings and consensus opinion, were that the Wheeler
should follow one of two possible courses in what would become the 1983-1984 renovation:
• Option 1: The Wheeler should be restored and remodeled with athree-story
addition on the two adjacent lots (now known as the Wheeler pazcel), plus
development of a 1,200-seat facility for summer-only usage; or
• Option 2: The Wheeler should be minimally restored and remodeled without
additions, plus a new 900-seat year-round theatre should be developed elsewhere.
• A caveat to this plan was that if the additional theatre did not prove feasible, then
the concentration should be on expanding the Wheeler with athree-story
addition.
• A further caveat as an immediate course of action recommended that the Wheeler
be restored as soon as possible, with a 6,000 square foot two-story basement
addition, above-ground combined passenger/freight elevator, and the rest of the
parcel restored as green space and terrace for the Motherlode Restaurant. If a
decision was made not to construct the 900-seat theatre, the plan for athree-story
addition to the Wheeler should be revived.
After study of financial pro-formas for the various scenarios, the group participating in the fifth
meeting (where consensus was formed) "had no sentiment" for Option 1 and clearly favored
Option 2; however, they also seriously questioned the ability to raise the funds required for a new
theatre's construction and operation, and therefore ultimately chose Option 1 without the
development of a 1,200 summer-only facility. A restored Wheeler with athree-story addition
became the consensus choice.
It is significant to note that of the participants in the five workshops, fully one-half of the
attendees were arts or arts-related people. [A list of participants is included in the report.}
"Master Plan Parameters For The Historic Restoration And Renovation Of The Wheeler Block,
Armen Colorado "Ham Weese & Associates (Chicago) October 1979. Appazently working at
the behest of Aspen City Council, this sister report to the Arts Development Associates report
provided a thorough study of the existing Wheeler and the authors' azchitectural
recommendations for an approach to its renovation and expansion. Much of the report covers
Wheeler history and recommends architectural standards for historic-theatre renovation.
The significant portion of this report is a paragraph found on Page 57:
• " ... A three Jloor addition should be constructed to accommodate the new
demands [from user groupsJ. It can be built on the 30' x 100' vacant lot
fortuitously adjacent to the west. This area has already been targeted by the
Wheeler Task Force for the expansion, and the building itself was designed to
accommodate a structure on its west elevation. (Two lots are available here, but
to acquire both would not only be expensive, but luxuriously out of proportion
with the scale of the 450-seat opera [house].)
"Wheeler Opera House Program Analysis "William Kessler And Associates Inc May 1980
This report was done as part of a final needs analysis prior to the renovation. It engaged an
eleven-person Renovation Commission composed of Aspenites including Richard Cohen, Howell
Mallory, Tom Isaac, and Jon Busch.
The program for the renovated Wheeler included a restored 500-seat historic theatre and a 150-
seat multi-purpose room. The plans show a very roughed-out series of drawings that intend to
use half of the Wheeler Parcel for an expanded facility that includes a basement level, space uses
appropriate for a producing theatre, and an apartment. The height of the proposed Wheeler
expansion at this juncture has it topping out just below the eave of the roof, indicating afour-
story stnucture.
The report contained a letter memo from theatre consulting firm Roger Morgan Studio, which
served as the theatre and systems designer for the project. In the letter Mr. Morgan states:
"Additional space on the adjoining property must be acquired to provide the additional square
feet which will be necessary to complete the design. I do not see any way in which the theatre
can be brought up to an adequate operational level without this addition. "
The report also contained a letter memo from acoustician Gerald Marshall of Klepper Marshall
King, also on boazd for the renovation project, which states: "Finally, the shortage of ancillary
theatre-support space represents a serious deficiency (not acoustical), and we strongly encoura~
an addition !o the building to create such space. "
"Wheeler Opera House Schematic Design "William Kessler And Associates Inc. August 1980
A follow-up report to the above gives a more detailed approach to its plans for the 1983-94
Wheeler renovation. On Page 2, it states: "An addition to the existing building has been
designed for the adjacent lot which contains critical building and theatre services. An open
space has been provided in front of this addition in order to maintain the visual prominence of
the existing Opera House facade. "
"Needs Assessment -Wheeler Opera House. "Rebecca Reynolds Consultins. January 2000. This
needs assessment was executed as a result of the renovated Wheeler having been in operation for
fifreen years and questions regarding how well it was performing and what improvements were
needed. The concentration was on the existing structure and not in pursuit of information that
would support a Wheeler expansion; still, a number of the comments from users, staff, and boazd
circled back to the need for an expanded building that would provide much needed space. Its
purpose was "to better understand and quanta the needs of the renters, their perceptions of the
facility's effectiveness, their use of its space and equipment, as well as their dreams and desires
for the future. "This was the first critical study done of the facility since 1979.
Thirty representatives of groups currently using the Wheeler were interviewed to provide
information for the survey, as well as Wheeler staff and board. 27 organizations were engaged,
representing 69% of the total number of organizations that used the Wheeler at that time.
Interviews took place in October and November 1999, with a final report to the Wheeler board in
December 1999. Specific findings of the report include the following:
• Wheeler box office: "Generally comments reflect that this space is too small,
too much is going in it, and that it is a confusing presentation to the public ...
the box office function, the patron lobby function and the Visitor's Center
function are all compromised by each other. Traffic flow, pre-opening of house,
and public perception are all a problem in this overcrowded space. "
• Wheeler 2"d floor lobby: "Due to the Wheeler's general space limitations,
respondents would like this space available for other purposes (meetings,
rehearsal, etc.), but feel current fees for this are prohibitive. Staff/board
comments note that space is not large enough to accommodate a full house of
patrons during intermission. "
• Concessions/bar: "Comments indicate a concern over the size of the bar, that it
is not big enough to handle patron demand .... "
• Rehearsal space: "Thirty-five percent had extreme interest in rehearsal space
and another 17% expressed some interest, for a majority of 52% expressing
dnterest at some level. "
• Storage space: "F~-six percent expressed some interest in additional storage
space, with 16% of these expressing extreme interest and 19% moderate interest
.... Comments agree that the storage that is needed on-site is for 'stuff' needed
during a renter's run, but that large-scale storage ... is not needed. "
• Parking: "The majority of respondents (63%) expressed interest in a parking
garage of some kind, with 35% of these expressing extreme interest. "
• Marquee: "Sixty-six percent of respondents expressed interest in a marquee of
some sort, with 35% of them expressing extreme interest. "
• Flexible space: "Twenty-eight percent expressed extreme interest in a multi-
purpose space, and an additional 30% expressed interest, for a majority of 58%
interested .... Like parking, comments reflected a multitude of ideas and needs
for this space, from saying there was no need for it on-site to saying the Wheeler
ought to start planning a west wall expansion immediately. "
In her summary comments, the author wrote "The largest single concern of respondents
regarding the Wheeler was an issue that the survey did not directly address: there is not enough
space .... Of the 27 interviewee responses to what their top priority issue was, IS of them
involved more space .... Although the ratings indicate overall satisfaction with the Wheeler as a
venue, the comments suggest that the Wheeler's ability to be the primary venue for such a wide
array of users may not in fact be working so well. The question is, with actual and current use
growing all the time, for how much longer will this situation work?" Four choices were then
suggested for a future direction concerning these pressures: a) Do nothing, b) limit use of the
Wheeler, c) expand the Wheeler, and d) construct a new venue off-site.
2000 Aspen Area Community Plan Cit~Of Aspen Sta February 2000. The 2000 plan makes
direct mention of the importance of the arts in the fabric of Aspen life, and establishes Arts &
Culture (along with Education) as deserving of its own independent section of the planning
document. In the vision statement for the 2000 plan, it states "The arts and culture of our valley
should continue to encourage local creators as well as to import celebrity talent. " The
philosophy expressed by the writers of the 2000 plan towazds arts and culture included a desire to
a) develop and cultivate local artists, b) foster artistic, cultural, and educational experiences where
artists and audiences interact, and c) recognize the extent to which arts, culture, and education
strengthen and stabilize our year-round economy.
Arts Communi Surveys Wheeler staf[ 2004. Afrer the defeat of the 2004 ballot issue regarding
the Wheeler's possible purchase of the Motherlode property, the Aspen City Council charged
Wheeler staff with the creation of a 2151 Century Master Plan, in order to once again assess the
venue's viability as an existing theatre for its user groups and measure whether or not a Wheeler
expansion was warranted. While no formal document was ever assembled, the interview notes
show that nearly all of Aspen's community-based arts groups were included in an interview
process that was conducted by Wheeler staff and board members.
As part of this process, Tom Baker of Baker & Associates was hired to facilitate public Process
Meetings. Because the Endowment Fund, created two years before in 2002, was considered by
the board at that time to not be appropriate to use for a Wheeler expansion, the conversation from
staff side towards user groups was focused on needed changes in the historic venue. A Wheeler
expansion at that time was thought to only be desirable and achievable through a capital
campaign that funded the project entirely with contributions and other outside moneys.
According to a memo dated May 15, 2004, from Wheeler executive director Nida Tautvydas to
Mr. Baker, "Since before the 1984 renovation and restoration, plans and discussions have
included the need for a Wheeler Annex .... The 2000 Needs Assessment (surveying 27 local arts
organizations) as well as direct feedback I have received from community members, arts
organizations and staff focused mainly on the need for more space in general. " The memo then
lists 41 desired improvements, with fourteen of these points being items that could only be
satisfied by a Wheeler expansion. Thus, even with the conversation aimed primazily towards the
1889 venue, user groups and staff could not make a thorough list without including primary-need
items that required a Wheeler expansion:
• Additional small performance space(s)
• Additional dressing rooms
• Scene shop or expanded facility shop space
• Storage for technical gear, sofr goods, materials, renters needs, facility archives, etc.
• Public meeting spaces
• Larger and/or additional lobby space(s) and exhibit space
• Production offices
• More staff office space
• Staff meeting space
• More restrooms
• Catering facilities
• Expanded box office facilities and lobby
• Multi-purpose space
• Rehearsal space
Wheeler Opera House Or¢anizational Audit Genovese Yanderhoof & Associates Julv 2005•
Upon the resignation of the Wheeler's Executive Director in March 2005, the 21s` Century Master
Plan interviews quickly came to a halt. Dory Vanderhoof of Genovese Vanderhoof & Associates
(GVA) was hired at the direction of City Council to conduct an organizational audit, in order to
achieve a deeper understanding about how the Wheeler was performing for its user groups and
what actions might be taken to help correct existing problems.
User groups were invited to participate in interviews with Mr. Vanderhoof, in order to help define
a better working organization, particularly in terms of governance, access, and community
partnerships. Old issues that had been raised in many previous reports, such as the limited
availability of dates, uncomfortable patron amenities, and dysfunctional support systems (such as
box office software and phone lines) were underscored again. Much of the report is focused on
the need for a restructuring of the senior administration, in order to clear the logjam that
prevented the staff from working on anything other than immediate needs. While mention of a
Wheeler expansion was not a part of this report, it is cleaz that the shortcomings highlighted in the
two previous reports as well as this one showed a lack of ability by Wheeler staff to create a
fully-working facility, let alone take on the responsibility of accommodating additional artistic
and community needs.
Arts Sector Facilities Survey' Summar~Of Responses Cit~of Aspen Community Development
Department, February 2006. Steered by Ben Gagnon of City ComDev, the purpose of this
survey and summary was to determine the need for a new arts and presentation facility in Aspen,
as part of preparatory work for the City's "Civic Master Plan" (see below). The survey was sent
only to major arts group producing events in Aspen, with nine organizations participating.
Venues were subjectively assessed on a variety of criteria (size, availability, affordability,
comfort, etc.). While the information that can be mined from this snapshot from three-plus years
ago may or may not be applicable to venue improvements today (i.e., complaints about the
Wheeler's seating have since been rectified), the solid information for our purposes comes in the
form of this summary statement regarding "Space Needs:"
"The survey asked local arts groups which type o~ace they need the most. The
greatest need was for performance/presentation space (40%), followed by
educational programming (36%), pre-event staging and preparatory space (l9%)
and administrative space (S%). "
It is also significant to note that of the fifreen venues cited for consideration in this survey, the
Wheeler far exceeded all others in terms of use over the past ten years, and current or future user
of venues in Aspen.
"The Arts In Aspen.• Do We Need More Space?. "Michael S[ronv. AnQast 2006. At the request
of the Assistant City Manager and the Wheeler board of directors, an independent arts consultant
was brought to Aspen for six days in June 2006 to conduct further interviews with members of
the arts community to again test the need for additional space for their purposes as well as to
determine the viability of a Wheeler expansion. Neazly all of the executive directors or general
managers of active arts groups in Aspen were interviewed in this process. The Strong report was
broken down into the following areas:
• Program Expansion [for arts groups]
• Can Present Facilities Be Improved?
• The Future Of The Aspen Arts Scene
• Synergistic Relationships
• Does Aspen Need A New Live Performance Facility?
In the author's conclusion, he states "The Wheeler Opera House ... should continue to develop
relationships with all users and improve the current services it provides to those users .... I feel
any attempt to develop the adjacent site purely for Wheeler promoted programming and without
consideration for the needs of other arts organizations ... would be perceived as primarily self-
serving. Any plans to expand the Wheeler into the `Wheeler Parcel' should only be done in
conjunction with a comprehensive plan for exploring all possible redesign and expansion of the
existing facility, and with an eye towards partnerships that will severely limit or eliminate the
threat of significant dark periods for all of its performances and usage spaces. "
Civic Master Plan Cit~Of Aspen 2007. This report, which is the result of six years' work,
repeatedly included the Wheeler and its parcel as part of a desired plan for focusing efforts in the
upcoming years. As stated in the document's preamble, "... we can explore the possibilities for
the Wheeler Parcel that show the community is alive and evolving -and continuing to celebrate
its core identity as a center for arts and culture. " The 24-member Civic Master Plan Advisory
Group included six arts professionals, including five executive directors of Aspen arts groups
(including the Wheeler).
The report notes that in 2005, "the CMPAG recommended an information-gathering effort
entitled the Arts Sector Facilities Analysis to help answer the question: Is a new shared-use arts
facility needed in Aspen?" An entire portion of Section II of the report is dedicated to exploring
possibilities for the future of the Wheeler parcel, with the following statement:
"The CMPAG recommended that the development of the Wheeler Parcel should:
• Accommodate as many additional needs of the local arts community as
possible.
• Improve the operational function of the Wheeler Opera House.
• Contribute to improvements in the daytime administrative office and
box office
• Contribution to the Wheeler's ability to present more live
performances and to improvements in production capabilities.
The CMPAG found that, 'Future development at the Wheeler Parcel may increase
operational flexibility and the number of annual productions at the Wheeler Opera
House. Increased production capability could add a new element to the upcoming
Arts Sector Facility Analysis. "'
It is significant to point out that the CMPAG's expression of interest in a Wheeler expansion is
ofren couched in terms of how it would support many of the eight Civic Master Plan Core
Principles, especially the first ("Civic & Arts/Cultural uses belong in the heart of town") and last
("Arts and Culture is an intrinsic asset").
MeettnQS With Arts And General Community Robert Schultz and Wheeler Staff March and April
2008. As an additional effort to gather community input on a Wheeler expansion, the Wheeler
engaged consultant Robert Schultz to assist in three public meetings in the spring of 2008.
Wheeler staff presented a history of the 21s` Century Master Plan effort to-date, and Mr. Schultz
led a discussion with those in attendance. Approximately ninety members of the public came to
these three meetings, with Aspen's arts leadership well represented. Various elements of a
possible Wheeler expansion were presented, and out of the public input Wheeler staff took
several new directions on the preliminary assessment of spatial needs for the possible expansion.
Summary points from these meetings would include:
• General consensus about the theatre and spatial needs direction, in agreement with
the direction that Wheeler staff was taking
• Mixed opinion on the inclusion of housing for staff or resident artists. Some felt
strongly that housing should be included, while other felt strongly that it should not.
• General consensus that the street-level space where the box office is presently
located should become high-traffic commercial space, whether for afor-profit
business or for a combined gift shop or other arts-benefitting retail purpose
• Concern about the green space at the south end of the Wheeler parcel, and
preservation of public amenity space
Meetin¢s With Arts Community Farewell Mills Gatsch February 2009. Shortly after they were
selected and put under contract as the Wheeler's architectural team for the Pre-Design & Planning
stage of development for the 21s` Century Master Plan, a team from Faewell Mills Gatsch
Architects LLC came to Aspen to continue the dialogue with the Aspen arts community,
including measuring their needs and compiling "wish list" items to put in the possible expansion
building. Six arts groups managers, one professional promoter, and one independent artist met
with Alison Baxter of FMG over the course of three group meetings towards the end of Januazy
2009. The direction of the conversations was to achieve each group's best sense of needs that
would go into the limited footprint available, if possible. It was through these conversations that
Wheeler management as well as the FMG had a better sense of how some spaces needed to work
together, and also how to better define certain spaces that had been planned conceptually but were
in need of better fleshing-out. Throughout these meetings, FMG staff endeavored to make certain
that arts groups understood that the prospective Wheeler expansion was intended to serve local
arts groups' needs to the maximum extent possible.
Comparison With Other Venues. Wheeler Staff September 2009. In an overview for City Council
for consideration at its September 29 meeting to consider conceptual approval for the Wheeler
expansion, the following overview of other venues in Aspen was presented, as evidence that,
despite there being a significant number of public-meeting venues in Aspen, those venues did not
offer the availability or facilities of the Wheeler Opera House. In sum, the venues were:
• Harris Hall (approx. 500 seats) and the Aspen Music Festival Tent
(approx 2,000 seats). Owned and operated by the Music Associates of
Aspen, Harris Hall and the Festival Tent are used primarily by the Aspen
Music Festival and School, and only recently have they made the venue
available during the ten weeks of summer for partnership situations with
other area not-for-profits. In the winter, the Festival Tent is closed and
Harris Hall is available as a four-wall rental, but without any support
staff (technicians, box office, front of house) and only on a limited basis.
Built with classical music rehearsal and performance in mind, and later
retrofitted with a movie screen for film exhibition, Harris Hall does not
lend itself well to theatrical or amplified music uses. Winter usage is
impacted by Harris Hall's remote location relative to the downtown core,
and parking requires that a lot be plowed and kept open, which often
requires an additional fee.
• Paepcke Auditorium (approx 300 seats). Owned and operated by the
Aspen Institute, Paepcke Auditorium is another limited-use four-wall
situation without support staff or flexible technology for true
performance-venue purposes. It offers a convenient seating size for most
Aspen arts groups' smaller-hall needs, but offers no wing space or
variety of technology for much beyond lecture or film exhibition
programming. Paepcke also is removed from the downtown core, which
can cause traffic and parking problems in the West End. Paepcke does
not have its own box office.
• The Given Institute (190 seats). The Given Institute is owned by the
Regents of the University of Colorado and operated under the
supervision and direction of the School of Medicine. Its auditorium is
"in the round" and limited to speaker/lecture presentations and private
events; it would not serve as a theatrical or concert space easily. It also
features a library that can seat 30 at a long boardroom type table, and
three breakout rooms that can accommodate up to 30 people in each
space. It has limited technical support and no box office facility.
• The District Theatre (approx 500 seats) and Black Box (99 seats).
Owned and operated by the Aspen School District, these facilities aze
primarily for educational purposes, with a fair amount of access for arts
group usage especially in the summertime. Neither space offers true
backstage amenities (particulazly dressing rooms), and both come as
four-wall rentals without support staff other than a resident technician.
Scheduling for outside groups is secondary to school purposes, which are
increasing. The 500-seat District Theatre is an excellent stage for dance
and musical theatre, with acceptable wing space, depth, and a fly loft.
The Black Box is as fundamental as the name implies, and its seating is
limited at 99. These theatres are located well outside the downtown core,
although they do have the benefit of a lazge parking lot for users and
patrons. Neither space offers its own box office services.
• Belly Up Aspen (approx 400 standing capacity). The Belly Up is a
privately owned and operated nightclub with a very small stage, without
height, width, or depth, or formal seating area. While it is an excellent
venue for live music (mostly amplified), it is a difficult venue for theatre,
film (video) exhibition, or dance. The Belly Up is programmed by its
owner for well over 300 days of the year, making usage by outside
groups difficult to acquire. It does feature its own box office services
and a full support staff. It is located in the heart of the downtown core,
which is a major positive.
• The flexible-use space at the Red Brick. Truly afour-wall space, the
flexible-use room at the Red Brick holds classes, rehearsals, and
occasionally serves as a screening room for various not-for-profits. It is
in constant high demand, making increased availability unlikely. It
offers no resident technology or support staff. While it could be used as
a theatrical or concert venue, the lack of acoustical treatment in the space
means that a user would need to bring in significant sound baffling and
support. It also lacks seating and has no box office services. It is located
in the downtown core, which is seen as a strong plus.
City Council asked Wheeler staff to prepare a more in-depth analysis of the venues, and that work
is underway; however, it is not ready for presentation at this time. The work so far does confirm
that the above statements are reflective of information being received from venue management.
SUMMARY AND RECOMMENDATION:
Throughout the course of thirty-five years, there have been ongoing discussions among staff,
planners and user groups about the need for improved and expanded performing arts space. At
times, that conversation focused on improvements to the existing 1889 structure. At other times,
the focus was on how best to use additional space. But throughout the discussion, the single
constant refrain has been that the Wheeler is the entity that the community and most of the arts
groups look to in order to fulfill their mission and present high-quality performances in the heart
of Aspen.
Wheeler staff recommends that City Council consider the extensive length, breadth and depth of
conversations, needs assessments and facility analyses over the past three and a half decades as
evidence that there continues to be the need for a Wheeler expansion to create the kind of arts
crucible that will better satisfy the broad array of Aspen-based arts groups, as well as further
distinguish Aspen as the nation's most unique resort community. In the end, the most persuasive
quote is perhaps the simplest, written at the very beginning of this process in January 1975, in a
letter from Christopher Jaffe of Jaffe Acoustics to Edgar Stern, the president of the Music
Associates of Aspen board of directors. It is as true today as it was 34 yeazs ago:
... We are of the opinion that a renovation program that does not include the
construction of new ancillary facilities in a tower core or underground, will
not increase production capabilities to meet the communities' desire for
expanded usage. "
ADDITIONAL INFORMATION
DECEMBER 7, 2009
CITY COUNCIL MEETING
Data on Winter Holiday Visitors
Wheeler staff has maintained that there is a need to supply Aspen guests with entertainment
resources beyond the options available during peak seasons, such as during the eight weeks of
summer and three weeks surrounding the winter holidays. The Wheeler has been able to pull zip
code data from the 2007 and 2008 winter periods that help illustrate this point.
In 2007, zip code information for ticket buyers from mid-December through the opening days of
January 2008 shows 566 Roaring Fork Valley buyers, 148 out-of-area buyers, 11 Western Slope
buyers, and 39 buyers without sufficient data to assess home location. Of these 764 buyers, 19%
were clearly short-term guests. Of the 74% assessed as RFV buyers, it is fair to expect that a
good percentage of that figure can be designated as second-home owners enjoying their holidays
in Aspen.
In 2008, zip code information shows 432 Roaring Fork Valley buyers, 141 out-of--area buyers, 10
Westem Slope buyers, and 45 buyers without sufficient data to assess home location. Of these
628 buyers, 22% were clearly short-term guests. 68% were assessed as RFV buyers.
It is important to note that this zip code information only pertains to individual purchases, not
numbers of tickets sold in each purchase, nor do they apply to door sales, when the Wheeler does
not collect full data in order to get the audience into the theatre and start the show on time. These
figures at best should be viewed as indicative, not representative, for that reason; however, we
can extrapolate from these figures that the Wheeler is a nighttime destination for Aspen guests
throughout the year and should expect to also be so during the busy summer season, if a second
venue was added.
Wheeler Opera House
Winter Visitor Breakout
RFV-
Based
2007-2008 Winter Holiday 566
Period
2007-2008 Winter Holiday 432
Period
Diversity of Programming Mix
Avg Sales Avg Sales
Western Out Of Un- RFV OOA
Slope Area known Buyers Buyers
11 148 39 3.300 3.648
10 141 45 3.064 2.959
While not raised at the City Council level, at the November meeting of the Wheeler board of
directors questions were raised about the Wheeler's programming direction.
In order to clarify and demonstrate the Wheeler's diversity, as well as overall venue use, Wheeler
staff has created two spreadsheets, included as Tables A and B. Table A shows the Wheeler's
programming mix by actual days used; Table B, by the number of shows. Wheeler Film Society
movie screenings are not included in these frgures.
As a programming philosophy, the Wheeler seeks to feature world-class events and artists right
alongside emerging artists, homegrown talents and community events, sometimes in the same
week, throughout its performing year. The Wheeler has a deep legacy of presenting a broad
spectrum of live events, and an ongoing commitment to continue this diverse mix of performance
opportunities for our permanent residents, second-home owners, and occasional guests, which has
helped keep Aspen unique among resort destinations of any kind. The attached information about
Wheeler programming demonstrates fulfillment of this commitment to present diverse world-
class arts experiences and to assist local arts groups in the successful presentation of events, series
and festivals.
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Further refinement of numbers relative to the needs assessment
An inventory of local venues was included in the documents and presentation for the September
29'" City Council meeting as an overview, citing usage limitations that cuttently affect local arts
not-for-profit groups.
Included below is a completed facility survey, with full information as available from
representatives of these spaces. Cost and usage concerns are fully documented, to the best of
staffs ability. The Isis Theatre, which was not part of the September meeting inventory, is
included here, as well.
Wheeler staff has had many discussions over an extended period of time with arts groups large
and small that perform in the Aspen area about the need for a second Wheeler venue that can
primarily serve local user groups because the existing inventory of venues does not sufficiently
offer the resources needed, when they are needed, at an affordable rate. Tangible and intangible
benefits to arts groups and their audiences by virtue of an expanded Wheeler include:
• Lower initial and multi-day rental cost.
• Better booking availability for their program date needs.
• Space that is designed specifically for theatrical/concert production.
• Staffing that can effectively assist in mounting and executing programs, at a
modest price.
• Venue services such as lobbies, bars, and rest rooms, not commonly found at
other locations.
• One-stop shopping for their patrons and audiences on day or night of show.
• "Halo" effect of having their event(s) at Aspen's premiere performance facility.
• Ability to combine programs on multiple stages or sites in true festival
configurations.
• Audience access to downtown Aspen services such as covered parking,
restaurants, bars, and retail.
• Access to full-service ticket sales for events at venues other than the Wheeler, at
a modest price.
• For the for-profit community, access to meeting resources in Aspen's downtown
core that would be an affordable option for them that also brings more business
to Aspen merchants.
ASPEN VENUES -USAGE AND AVAILABILITY ASSESSMENT
In order to better understand the need for a second venue at the Wheeler through an
expansion project, the following survey was done on all other "performance" venues in
the Aspen area:
• Aspen Music Festival -Benedict Music Tent
• Aspen Music Festival -Harris Hall
• Belly Up Aspen
• Black Box at Aspen Schools Complex
• District Theatre at Aspen Schools Complex
• Doerr -Hosier Center
• Given Institute
• Isis Theatres
• Paepcke Auditorium
• Red Brick Flexible Spaces
Vital criteria that were requested from venues for compazative purposes includes:
• Venue(s) size
• Venue(s) accessibility
• Distance from downtown core and services
• Number of in-house usage days
• Amount of day-inventory available to outside entities
• Venue amenities
• Venue appropriateness
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue: Benedict Music Tent
Owned by: Aspen Music Festival & School
Location from downtown core: Approximately one mile plus
Size: 2,050
Approximate number of days used by owner: _80
Approximate number of days available to outside entities: 7
Rental rates: not disclosed
Theatre amenities offered by venue:
• Box office services
• Technical equipment
• Technical staff
Venue use appropriate for:
• Mainstream theatrical productions
None out of season
Limited lighting and sound support
None out of season
No, --no side stages, flyspace or
theatrical lighting
• Film presentation No
• Music/Concerts Yes
• Dance Yes, --limited
• Speakers Yes
• Rehearsals Yes
• Other
Name of person supplying survey information:
Matthew Loden, General Manager, Music Assoc iates of Aspen
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue: Harris Hall
Owned by: Aspen Music Festival & School
Location from downtown core: Approximately one mile plus
Size: 500 seats
Approximate number of days used by owner: 80 (high summer season), 50 (winter
season), 130 days total
Approximate number of days available to outside entities: 30-no tech support for more
Rental rates: not disclosed
Theatre amenities offered by venue:
• Box office services None out of season
• Technical equipment Limited; film projection
• Technical staff None out of season
Venue use appropriate for:
• Mainstream theatrical productions No, no side stages, flyspace or
theatrical lighting
• Film presentation
• Music/Concerts
• Dance
• Speakers
• Rehearsals
• Other
Yes
Classical/acoustic
minimal
Yes
Yes
Name of person supplying survey information:
Matthew Loden, General Manager, Music Associates of Aspen
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue: The Belly Up Aspen
Owned by: Michael Goldberg
Location from downtown core: 0.0 miles
Size: Variable; accommodates 450, 130 seated, 320
Standing.
Approximate number of days used by owner: 365, unless otherwise rented
Approximate number of days available to outside entities: 365, rentals always available
unless previously booked by owner.
Rental rates: Variable, dependant mostly upon type of event and level of exclusivity.
Non-profit rates available ($500/night suggested)
Theatre amenities offered by venue:
• Box office services Yes
• Technical equipment Yes
• Technical staff Yes
Venue use appropriate for:
• Mainstream theatrical productions No
• Film presentation Video only
• Music/Concerts Yes
• Dance Yes
• Speakers Yes
• Rehearsals Yes, mainly daytime usage
• Other Private receptions, seated dinners
Name of person supplying survey information: Michael Goldberg, Owner
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue:
Owned by:
Location from downtown core:
Size:
The Black Box
Aspen School District
Approximately 3 miles
Variable; seats up to 99
Approximate number of days used by owner: 200+ days during sch. year as
classroom.
Approximate number of days available to outside entities: AMFS- yearly 2 months solid
use, Theatre Masters-15 days/year, Hudson Reed Ensemble- 10 days/year. Rentals are
limited by school policy with "beneficial to the school" as the acceptance guideline.
Rental rates: $ 60.00/hour with 50% discount for non-profits
Theatre amenities offered by venue:
• Box office services
• Technical equipment
• Technical staff
No
Yes, somewhat limited
No
Venue use appropriate for:
• Mainstream theatrical productions Yes
• Film presentation No
• Music/Concerts Yes
• Dance Yes
• Speakers Yes
• Rehearsals Yes
• Other
Name of person supplying survey information: Denis Cyrus, Aspen School District
Theatre Facilities Manager
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue:
Owned by:
Location from downtown core:
Size:
The District Theatre
Aspen School District
Approximately 3 miles
550 seats
Approximate number of days used by owner: Serves as school auditorium and main
large gathering place. 200+ days
Approximate number of days available to outside entities: AMFS-Set shop for 2 months,
ACT-entire theatre for 2.5 months, Aspen Ballet- theatre for 2.5 months, Various Misc.
renters 30 events/year average.
Rental rates: Base rate $800.00/day, + $250.00/day custodial fee, Non-profits 50% off
base rate, dressing rooms additional
Theatre amenities offered by venue:
• Box office services No
• Technical equipment Yes
• Technical staff No, renter supplied
Venue use appropriate for:
• Mainstream theatrical productions
• Film presentation
• Music/Concerts
• Dance
• Speakers
• Rehearsals
• Other
Yes
Yes, limited video only
Yes
Yes
Yes
Yes
Name of person supplying survey information: Denis Cyrus, Aspen School District
Theatre Facilities Manager
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue:
Owned by:
Location from downtown core:
Doerr-Hosier Center
Aspen Institute
Approximately two miles
Approximate number of days used by owner: 200+ with multiple events per day
Approximate number of days available to outside entities: 200+ with multiple events
Rental rates: Varies: Entire three levels of the facility= $30,000/day
Main ballroom/banquet room = $5,000/day
Smaller breakout rooms are less
Theatre amenities offered by venue:
• Box office services No stand alone box office, limited ticketing during the
Aspen Ideas Festival
• Technical equipment Yes, enough for a small to mid-size production
Larger events sometime need rental equipment support
• Technical staff Yes
Venue use appropriate for:
• Mainstream theatrical productions Yes, however facility has no tiered seating
Only banquet type chairs available
• Film presentation
• Music/Concerts
• Dance
• Speakers
• Rehearsals
• Other
Yes. Video only
Yes, many concerts from solo guitarist to
full bands
Yes
Yes, with full technical support
Yes
Weddings, bar mitrvahs, parties etc.
Name of person supplying survey information: Jason MacEachen, facility manager
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue:
Owned by:
Location from downtown core:
Size:
The Given Institute
Regents of the University of Colorado
0.3 miles
190 for main hall; under 20 for meeting areas
Approximate number of days used by owner: 130 days
Approximate number of days available to outside entities: 130 days
Rental rates: See attached rate sheet.
Theatre amenities offered by venue:
• Box office services No
• Technical equipment Yes
• Technical staff Yes
Venue use appropriate for:
• Mainstream theatrical productions Could be adapted
• Film presentation Video only
• Music/Concerts with additional equipment imported
• Dance No
• Speakers Yes, main use
• Rehearsals Yes
• Other Outdoor space available for banquet tents
and outdoor dining
Name of person supplying survey information: Janet Ferrara, Manager
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue: Isis Theatres (three screens)
Owned by: Aspen Film/City of Aspen; operated by
Location from downtown core: .1 miles
Size: 193, 112, 120 and 120 seats
Approximate number of days used by owner: 365, unless rented
Approximate number of days available to outside entities: Upon demand
Rental rates: $500 to $2,000
Rental is variable, depending on time of day, season, programming competition, etc.
Theatre amenities offered by venue:
• Box office services Yes, but not for advance sales
• Technical equipment None beyond film projection
• Technical staff Projectionist only
Venue use appropriate for:
• Mainstream theatrical productions No stage; shallow area
• Film presentation Yes
• Music/Concerts Difficult at best
• Dance Difficult at best
• Speakers Yes
• Rehearsals No
• Other
Name of person supplying survey information:
David L. Corwin, President, Metropolitan Theatres Corporation
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue: Paepcke Auditorium
Owned by: Aspen Institute
Location from downtown core: Approximately one mile plus
Size: Now under remodeling process, will seat 425 when
completed in June of 2010
Approximate number of days used by owner: Approximately 60 days mostly in summer.
Approximate number of days available to outside entities: 200 days.
Rental rates: $ 2000.00/day
Theatre amenities offered by venue:
• Box office services
• Technical equipment
No
Film and video projection; "state of
the art" sound support to be installed.
• Technical staff Yes
Venue use appropriate for:
• Mainstream theatrical productions Difficult, due to stage size and lighting
• Film presentation
• Music/Concerts
Yes, both Film and Video
Yes
• Dance
• Speakers
• Rehearsals
• Other
Difficult due to stage size
Yes
Possible
Overflow lecture hall, Product launches
Name of person supplying survey information: Jason MacEachen, Facility Manager
VENUE USAGE AND AVAILABILITY ASSESSMENT
Name of venue:
Owned by:
Location from downtown core:
The Red Brick Flexible Use Room
The Red Brick Conference Room
The Red Brick Center for the Arts
0.4 miles
Size: Flexible Use Room; possibly seating up to 99
Conference Room; seating up to 48
Approximate number of days used by owner: Approximately 45-50
Approximate number of days available to outside entities: 365
Rental rates: For-Profit user $18.00/hour, Non-Profit user $15.00/hour
Theatre amenities offered by venue:
• Box office services
• Technical equipment
• Technical staff
Venue use appropriate for:
• Mainstream theatrical productions
• Film presentation
• Music/Concerts
• Dance
• Speakers
• Rehearsals
• Other
room
Limited
No
Limited Audio Visual equipment
Limited
Video Only
Difficult; requires sound support
Yes
Difficult; requires sound support
Yes
Classroom, conferences, activities
Name of person supplying survey information: Debra Muzikar, Executive Director
Venue Comparison and Subsidy Data
City Council and members of the community have raised concern about what an appropriate
amount of subsidy (from the Wheeler RETT) to support Wheeler operations should be. As well,
there has been a question as to whether projected usage of about 200 days per year as a working
average represents a fair amount of usage, under-usage, or over-usage.
Percentage numbers aze found on the far right column of the spreadsheet. It is important to note
that neazly all theatres and performing arts centers in the United States depend on grants and
contributions, not a dedicated tax, to support their operations. Because corporate, individual, and
grant-based giving has suffered along with the down economy of 2008 and 2009, some theatres
profiled here aze actually lower in their percentage of total budget as donations/subsidy than they
would have appeared through much of the past decade.
Wheeler staff chose to provide afull-range of theatres (size, geography, home market, for-profit
vs. not for profit), in order to show how diverse the performance-venue community is. However,
even with all of these variables a picture does begin to appear that supports our opinion that a
200-day usage amount for a facility is above-average except in the most densely-populated
sections of the nation.
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Programming Vision Statement
Members of the community have repeated raised questions about "Who is the Wheeler building
this expansion for?"
In order to be proactive with the local arts community, and to articulate the Wheeler staff and
board's heartfelt desire to make the Wheeler expansion's theatre workspaces primarily for [hat
community, a cleazly-stated programming vision statement seemed essential.
It cannot be stressed enough that our efforts to create additional performance and useable spaces
in an expansion facility are based primarily on the need identified as eazly as 1975 for the
Wheeler to fulfill the unmet demand for community-serving arts spaces. In the Operating Pro
Forma and Long Range Plan financials for an expansion building, operating numbers aze based
on the Wheeler expansion being a facility that is predominantly in use by external parties that
have long lacked access to such spaces. Wheeler-specific needs in an expansion facility are
limited primarily to audience services, offices, and operating improvements (better utilities
systems, storage, box office, etc.) and only secondarily through access to an additional
performance venue or venues.
The attached draft vision statement is presented for review, comment and discussion with local
arts groups and community members.
DRAFT
WHEELER OPERA HOUSE
PROGRAMMING VISION STATEMENT
September 18, 2009 Draft
The Wheeler Opera House is thrilled to anticipate that by the middle of 2013 there may
be two fully-operating theatres in downtown Aspen for use by all presenting entities in
the Roaring Fork Valley -the 503-seat historic Wheeler stage and a new, flexible
underground theatre in the Wheeler expansion, expected to hold a maximum of 265 seats.
An additional flexible-use space is also anticipated to be added, opening up opportunities
to satisfy a number of other needs identified by the arts and cultural community.
In order to operate these spaces in aclearly-articulated fashion, Wheeler management
would like to propose the following programming vision statement, which can be
revisited annually for better clarity based on actual usage.
• The Wheeler Opera House is alocally-serving cultural asset, and is
dedicated to making its stages available for rental at reasonable rates for
all not-for-profit and for-profit entities that wish to use it, with a particular
bias towards locally-based and locally-serving organizations in the
Roaring Fork Valley.
• The Wheeler Opera House is also a presenting entity, chazged with
maintaining a programming profile in keeping with the City of Aspen's
mission of furthering Aspen's reputation as America's premiere resort
destination.
• Therefore, in order to effectively balance these two directives, the Wheeler
plans to construct a new, smaller theatre for the primary purpose of
absorbing much of Aspen's locally-driven programming needs, when
those needs require a more intimately-sized venue than the historic
Wheeler stage and 503 seats.
• The priority for bookings in both the historic and expansion theatres is
suggested as follows:
- The Wheeler Opera House shall have priority for booking in
both venues at peak times of yeaz and at key guest occupancy
times (Christmas to New Yeaz's, Presidents Weekend, Fourth
of July week), in order to fulfill the City of Aspen's goal as
stated above to provide high-profile populaz entertainment
options at extremely reasonable prices.
- The Wheeler Opera House shall have priority for booking in
both venues for any multi-day festival or mini-festival for
which the Wheeler acts as producer or co-producing partner.
- First rental/usage priority in either venue will be given to
multiple-day events that are established in the Wheeler's
presenting profile. These currently include the John Denver
tribute concerts, Aspen Skiing Company's "The Meeting,"
Aspen Filmfest, Aspen Shortsfest, Warren Miller movies,
Aspen Center for Physics lectures, Aspen Day School and
Aspen Community School student productions, and any
future evergreen bookings that take on a similaz profile and
audience-draw.
- Non-Wheeler produced festivals (Aspen Filmfest, Aspen
Shortsfest, JAS Junefest, Summer Words, Winter Words,
etc.) will have priority for booking in both venues within the
timeframe of such festivals.
- The Aspen Music Festival and School shall continue to have
full authority over the historic Wheeler during the summer
season, as outlined in its ongoing Agreement with the
Wheeler through August 2034.
- Priority for single or multiple-day bookings in the
expansion theatre will be given to Roaring Fork valley arts
presenters for all periods of availability other than the
periods and conditions listed above. These bookings shall
be on a first-come, first-served basis, and bias shall be given
to the presentation of live and/or interactive (presentation and
speaker) public events. If local groups do not book within 60
days of a certain peak period date, the Wheeler has the
option to book other event(s) for that date.
- Priority for single or multiple-day bookings in the historic
Wheeler theatre will be equally shared between Wheeler
programming and Roaring Fork Valley arts presenters.
Emphasis will be given to anticipated audience size in
consideration of non-Wheeler-presented bookings in the
historic theatre. Audiences of 250 or less will generally be
better-accommodated in the new venue.
- Through the ten-week summer period when only the new
stage is available for community bookings, the Wheeler will
endeavor to coordinate multiple daily bookings in day-part
blocks, in order to better share the space among Aspen's
presenting community.
- Programming of the multi-purpose room shall be open to all
on a case-by-case basis, and programming usage may be
limited to day-part blocks, so that this space may be more
fully available to all, particulazly at peak-need times of yeaz
(e.g., early/mid-summer). This room will also be folded into
the inventory of spaces made available to presenters of
festival situations during the dates of such festival(s).
- The Wheeler welcomes programming ideas for both venues.
Upon completion of the expansion, the Wheeler would be
particulazly interested in soliciting programming for the new
venue from September through mid-December and April
through May. The Wheeler is a treasured community asset,
and its staff looks forwazd to making the expanded Wheeler
fulfill the needs of local arts groups and the Aspen
community to the maximum extent possible. Let us know
how we can serve you!
Conclusion
This completes the additional information that Wheeler staff felt would be of benefit to include at
this time. At the December and future meetings, Wheeler staff may receive additional requests
for information that should logically be included in this omnibus memo regarding need for an
expansion facility, and City Council and other readers should expect such further information will
be included in future revisions of this memo.
Historical Background of the Wheeler Real Estate Transfer Tax (RETT)
November 2009
PART ONE: HISTORY
1889 -1979: First Years Quiet Years and Paepcke Years
The historic Wheeler Opera House was built in 1889 by Jerome B. Wheeler. It has been
owned by the City of Aspen since 1918, and operated by the City as a distinct City
department since 1984. The Wheeler is on the State and National Historic Registers.
In 1912, two fires took place in the building in short order, and the second one destroyed the
upper-floor theater. In 1947, a resurrection of the theater at last began with a community
effort led by Walter and Elizabeth Paepcke that cleaned up the stagehouse, repaired the fire
damage and replaced the leaky roof. Throughout the 1950s the usage of the theater house
increased. In the early 1960s the Paepckes leased the theater from the City, and with the help
of Herbert Bayer they embazked on a partial renovation.
By the mid 1970s the entire Wheeler Opera House property had fallen into serious decay
and disrepair. Indeed, by 1979, the building had been condemned three times for safety
violations. In 1974, in an effort to support the Wheeler Opera House, the City Council
adopted Ordinance No. 21, Series of 1974, seeking to impose a "land transfer tax." The
voters did not approve this effort.
In 1974, the Music Associates of Aspen brought in master acoustician Christopher Jaffe to
do a site visit of the venue and assess the value of a comprehensive renovation and
restoration. The summary letter dated January 1975 from Mr. Jaffe stated unequivocally that
"a renovation program that does not include the construction of a new ancillary facility in
the tower core or underground will not increase production capabilities to meet the
communities' desire for expanded usage. "
By 1977 citizen groups and City staff were well underway with planning for a
comprehensive renovation and reconstruction of the building. A Community Facilities
Board, made up of citizens representing cultural, educational, and community service
organizations spent over a year working on recommendations for the future of the Wheeler
Opera House. The Boazd established the Wheeler Citizens Task Force to develop more
detailed recommendations for the Wheeler. The Community Facilities Boazd made the
following recommendations to the City Council in 1977:
[That) the Wheeler Opera House be designated for future use as one element
in a community/cultural complex, that a master plan for the building be
developed and that the master plan include the purchase of the two lots
adjacent to the Wheeler Opera House for an addition to the structure
thereby increasing its usefulness and function as a performing facility.
1
Acting on that recommendation, the City engaged private consultants and invited local
azchitects to offer recommendations and suggestions for the future of the opera house.
Subsequently, the citizen committees and task forces adopted a master plan for the Wheeler
expansion and renovation originally proposed by a consulting firm, Arts Development
Associates (Minneapolis). A master plan, submitted to the City in October 1979 (which
references an earlier draft version), entitled "The Wheeler Plus ... An Approach to the
Development of Performing Arts Facilities for Aspen and the Roaring Fork Valley, "
recommended that the "Wheeler should be restored and remodeled with a basement addition
as soon as possible." In addition, the report recommended the construction of a 900 seat
theater "in another location," or, alternatively, "a three story addition on the two adjacent
lots [to the Wheeler Opera House]."
In 1979, the City Council adopted Ordinance No. 20, Series of 1979, seeking to impose a '/z
of 1% real estate transfer tax (RETT)~ to support the Wheeler Opera House and a maximum
annual appropriation of $100,000 to support "the visual and performing arts." At the May
election of that year, the electors approved the new tax. The ordinance states that
... WHEREAS, the City of Aspen, with input from the community and
professional consultants, has adopted a renovation Master Plan for the
Wheeler Opera House; and ...
... WHEREAS, the City Council desires to impose a Real Estate Transfer
Tax to provide su~cient funds to make such renovation and reconstruction
The [Wheeler RETTJ fund shall be subject to appropriation by the City
Council of the City of Aspen only for the purpose of renovation,
reconstruction and maintenance of the Wheeler Opera House or for the
payment of principal and interest on bonds issued for such purposes and for
the purpose of supporting the visual and performing arts. However, the City
Council cannot appropriate in excess of one hundred thousand dollars
($100, 000.00) in any single calendar year for the purpose of supporting the
visual and performing arts without obtaining the approval of sixty (60)
percent of the electors voting at a regular or special election on the same.
(emphasis added)
1979 -1999: Renovation And Preparation for an Expansion
Following the March 1979 approval of the Wheeler RETT ordinance, the City Council took
a number of actions to try to jump-start the "renovation, reconstruction and maintenance" of
the Wheeler Opera House, including considering the sale of the opera house to a third party,
but retaining City control of its operation. [In September 1981, Council adopted Resolution
1 The affordable housing 1 % RETT was authorized by Ordinance No. 13, Series of 1990, and approved by the
voters in February 1990.
2
No. 45, Series of 1981, to assure the citizens of Aspen that it is their "intent that the Wheeler
Opera House remain under the ownership of the City of Aspen."]
In August 1980, Aspen City Council passed Resolution No. 15, Series of 1980, wherein it
agreed to hire the firm of William Kessler and Associates, Inc. (Detroit) as the creative team
for the Wheeler's renovation. The resolution states
WHEREAS, the City Council has approved plans for the addition to and
renovation of the Wheeler Opera House, and
WHEREAS, there has been submitted to the City Council a proposed
agreement between the City of Aspen and William Kessler and Associates,
Inc. providing for the addition to and renovation of the Wheeler Opera
House ....
(emphasis added)
At this point, all planning for the Wheeler project included purchase of the two lots adjacent
to the building, and the development of a significant expansion structure to support and
expand operations.
In November 1981, Council passed Resolution No. 54, Series of 1981, calling for a special
election to obtain voter approval for "renovation of the Wheeler Opera House." An election
was held in January 1982 at which time the voters approved the issuance of revenue bonds
for $1.2 million for "restoring, renovating, repairing, and otherwise improving the Wheeler
Opera House." (The vote was 208 in favor and 116 against - 13.11% of the electorate
voted.)
In May 1982, City Council authorized the filing of a legal action to commence
condemnation proceedings to acquire through eminent domain the two westerly lots
adjoining the Wheeler Opera House (Lots P and Q, Block 81, Original Aspen Townsite.)
Soon thereafter the City Council authorized the City Manager to compromise the
condemnation action by purchasing the lots for the sum of $550,000 and dismiss the court
case (City of Aspen v Estate of Shaw, et al., 82-CV-1974.) The Resolution authorizing the
condemnation action made cleaz that the purpose for acquiring the lots was that it "was
necessary to acquire additional land adjoining the Wheeler to construct thereon
improvements to the Wheeler that are necessary to bring it up to modern standards. "
(Resolution No. 14, Series of 1982.) The resolution authorizing a settlement of the
condemnation action also makes clear that the acquisition of the two adjoining lots was "to
permit completion of the ongoing renovation of the Wheeler Opera House. " (Resolution No.
15, Series of 1982.) On June 21, 1982, the City acquired the two westerly adjoining lots
from the estate of Dorothy Koch Shaw.
Soon after adopting these resolutions, the City Council adopted Ordinance No. 22, Series of
1982, to approve short term loans of $1.2 million for the renovation of the Wheeler Opera
House and $550,000 for the `purchase of land or easement of such land for the space
3
adjoining the Wheeler Opera House. " No bonds were issued as a new question was soon
sent to the voters for the approval of additional bonds.
In September 1982, the City Council adopted Ordinance No. 47, Series of 1982, in which
they set two questions relating to the financing of the Wheeler Opera House. The first was a
sales tax revenue bond question in which the Council sought authorization to issue $2.5
million for the purpose of "restoring, renovating, repairing and otherwise improving the
Wheeler Opera House. "That question passed 1196 to 319. The second question sought
authorization to sell the Wheeler Opera House for $2.9 million and simultaneously leasing
back the theater for an aggregate amount of $9.82 million with an option to repurchase the
property within 40 yeazs. That question failed by a vote of 1019 to 468.
On December 9, 1982, the City Council adopted Ordinance No. 71, Series of 1982,
authorizing the issuance of bonds in the amount of $11,605,000. This bond ordinance
authorized the sale of bonds previously approved for the "Land Acquisition Including Open
Space and Capital Improvements Fund" (the Land Fund) and the January 1982 authorization
for $1.2 million and November 1982 authorization of $2.5 million for the Wheeler Opera
House. At the same time, the bond issue refunded previous bond issues that had remaining
balances (1978 Refunding Bonds, and the 1978 Golf Course Bonds), and repaid some short
term loans of approximately $2.0 million.
By 1982, the Wheeler renovation project began to run into significant issues, and the
proposed design for the Wheeler expansion facility was met with disapproval by the public
and by those associated with the project. The expansion plan was pazed down to two
building improvements that encroached onto the adjacent lots, and no further development
has occurred on the two adjacent lots to the present day.
In 1983, City Council adopted Ordinance No. 48, Series of 1983, to increase the Wheeler
RETT from % of 1 % to 1 %. The election to obtain voter approval was canceled (Ordinance
No. 63, Series of 1983); thus, no increase was approved or implemented.
On May 23, 1984, the Wheeler Opera House reopened with a week long celebration. While
it has since become the center of Aspen's arts and culture with great local, regional, and
national success, Wheeler staff and board have periodically returned to the idea of
improving its services through completion of an expansion facility on the adjacent pazcel.
The original 1979 RETT ordinance had a twenty yeaz sunset provision. However, the voters
in the May 1997 municipal election recognized the need for continuing the Wheeler RETT
to ensure its financial health, and approved an extension of the Wheeler RETT through
December 31, 2019.
2000 To The Present: Two Views Towazds Building A Future
4
By 2002, the Aspen real estate mazket had become one of the hottest in the nation, and the
Wheeler RETT was steadily benefitting from a rising amount of real estate purchases and
sales, with attendant rises in property value. Because the Wheeler boazd recognized that this
steady excess of revenues over expenses reflected a reliable scenario for the future, and
without immediate plans to complete the deferred Wheeler expansion at that time, the
Wheeler board at its own initiative approached City Council about the creation of a
protective account for these excess revenues. Formalizing its intentions, the Wheeler Opera
House Boazd of Directors requested City Council to adopt Ordinance No. 46, Series of
2002, to establish the Wheeler Opera House Endowment Fund. The stated purpose of
establishing the fund was to have no less than $40 million in principal "to secure long-term
financing of Wheeler Opera House operations, capital improvements and grants to local
non profit arts organizations ... upon the date that the real estate transfer tax is currently
anticipated to expire in the year 2019. " From the inception of the endowment ordinance, it
was cleaz to all the creating parties (Wheeler Board of Directors and City of Aspen staff)
that the ordinance would need to be amended when it came time to actually use the funds.
In 2003 an opportunity azose for the Wheeler to purchase the Mother Lode Restaurant
property, which was adjacent to the Wheeler expansion at its western edge, for afavored-
nations price of $3.25 million. The decision was made to go forwazd with the possibility of
this purchase using existing Wheeler funds collected through the RETT, but only upon
public approval by a ballot issue. The ballot question on this issue read:
Shall the City of Aspen be authorized to purchase the Mother Lode
Restaurant and lots N and O of Block 81 in the Ciry of Aspen for the
continued and expanded operation of the Wheeler Opera House with funds
from the Real Estate Transfer Tax Fund? If approved by the voters, the Ciry
Council intends to pay $750, 000.00 in cash at closing and execute a
promissory note to the benefit of the seller in the amount of $2,500,000.00
with interest at five percent for a period often years. The full purchase price
of the property and restaurant is available from the existing Wheeler Opera
House Real Estate Transfer Tax Fund.
Despite the ballot issue being defeated in November 2003 (596 votes for; 762 votes against),
the structure of the possible purchase was based on using Wheeler RETT monies, with the
awareness and approval of the Wheeler Board and City Council. Had the ballot question
been approved, this would have necessitated altering the Wheeler Opera House Endowment
Fund ordinance that was adopted by City Council the previous yeaz.
In 2005, as part of an organizational audit of the Wheeler as well as a national seazch for a
new Executive Director, the Wheeler board and City staff refocused on the possibility of
developing the Wheeler pazcel as an expansion facility. Begun as a response to the defeat of
the Mother Lode ballot question, in 2004 City Council had directed Wheeler staff to prepaze
a 215` Century Master Plan, which would thoroughly review the deficiencies in the existing
structure for all users, including audiences, and seek consensus on the ability for resolution
of these deficiencies through operational and system improvements in the existing Wheeler
as well as through an expansion. By 2006, with many of the deficiencies in the existing
5
Wheeler building either resolved or in process, the focus again turned to the need for a
Wheeler expansion. After many months of gathering input from user groups and
independent consultants, in January 2008 Wheeler staff asked City Council to approve
moving to the second phase of the 21s` Century Master Plan, which would require engaging
an architectural creative team and start defining the potential for a Wheeler expansion. By
virtue of this approval, the Wheeler expansion had returned to the 1982 point in its
development, as a working idea moving towazds possible execution and delivery.
In 2008, the City Council adopted Ordinance No. 11, Series of 2008, to clarify the definition
of the phrase "renovation, reconstruction, and maintenance" used in the original RETT
ordinance. This ordinance added the following phrase to the original RETT ordinance.
For purposes of this section, the following definitions shall apply.•
"Renovation, Reconstruction and Maintenance" shall be defined as those
activities, operations, or physical improvements necessary to ensure a
performing arts venue that provides arts programming opportunities to the
citizens of the community and an endowment fund in perpetuity. Funds
available `for the purpose of supporting the visual and performing arts" in
addition to the $100,000 of real estate transfer tax funds shall include all
revenues generated by the operation of the Wheeler Opera House to include
gross revenues generated from lease agreements for space within the
Wheeler Opera House, gross theater rental revenue, gross ticket processing
fee and ticketing services revenues, and gross artist concessions revenue.
PART TWO: QUESTIONS Pages 6 to 10
Because of the long history of the Wheeler, its deferred expansion, and the creation and
implementation of the Wheeler Real Estate Transfer Tax, a number of issues have been
raised that would benefit from clarification, based on the above history and practices of the
RETT fund.
Question #1: Can the Wheeler RE77'be further extended beyond December 31, 2019?
The original Wheeler RETT had a sunset provision requiring the collection of the tax to
cease on December 31, 1999. This RETT was extended to December 31, 2019, through the
approval of the voters in May 1997. Thus, clearly the City has taken the position in the past
that the sunset provisions of RETTs maybe extended with the approval of the voters.
Question #2: Can RETT funds be used to expand the Wheeler onto the YVheeler Parcel?
The issue raised by this question is whether the voters in approving the Wheeler RETT
authorized its use for this particulaz purpose. The ordinance levying the tax and which was
6
the subject of the public vote authorizing the tax stated that the RETT would be used as
follows:
... only for the purpose of renovation, reconstruction and maintenance of the
Wheeler Opera House or for the payment of principal and interest on bonds
issued for such purposes and for the purpose of supporting the visual and
performing arts.
At first blush, the language of the ordinance does not appeaz to authorize the use of RETT
funds for the purchase of additional lots or for the expense of building an addition on those
lots; however, as noted above, the history of the 1ZETT leading up to its passage strongly
indicates that the public was fully awaze that there were plans to acquire additional land next
to the Wheeler Opera House and to renovate and reconstruct the opera house by purchasing
the adjacent lots with RETT funds and extending the building onto the lots. Indeed,
Ordinance No. 20, Series of 1979, imposing the RETT states
WHEREAS, the Wheeler Opera House desperately needs extensive
renovation and reconstruction; and
WHEREAS, the City of Aspen, with input from the community and
professional consultants, has adopted a renovation Master Plan for the
Wheeler Opera House ...
The records that aze available from that period of time show that the City did, in fact,
purchase the adjacent lots with the intent to use the lots to renovate and reconstruct the
Wheeler Opera House. The "Master Plan" discussed at the time of the RETT ordinance
indicate a cleaz intent to acquire the two adjacent lots and to "renovate and reconstruct" the
Wheeler Opera House upon them with the use of Wheeler RETT funds.
Question #3: Is the Wheeler Parcel a park and can its use be changed from nark to theater
use?
The issue this question raises first and foremost is whether the 1982 purchase of the two lots
west of the Wheeler Opera House were intended for use as open space or for the purposes of
the Wheeler's renovation. If the two lots had been intended for open space, the City Charter
would not allow a change of use without voter approval. The City Charter states that:
[7Jhe city council shall not cause or permit the change in use of the real
property acquired for open space purposes, other than agricultural or
underground easement purposes, without first obtaining the approval of a
majority of the electors voting thereon. (Emphasis added)
Thus, the real property must have been acquired for open space purposes in order for this
particular section of the Charter to apply. As noted above, the 1982 condemnation action
ordinance and authorization to purchase ordinance both specifically indicated that the lots
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were being acquired by the City for the expansion of the Wheeler. Finally, several yeazs ago
the Finance Department was asked to conduct some forensic accounting to determine how
the lots were actually paid. They determined that the Wheeler Opera House fund borrowed
the money from the Pazks fund and that the money was returned in installments over a
course of yeazs. The entire amount bon•owed for the purchase was repaid by the Wheeler
Opera House fund. Hence, it is evident that City leaders in the early 1980s believed RETT
funds could be appropriately used for that purpose.
Therefore, no matter how long the adjacent lots may have been vacant, the Charter provision
relating to changes in use of open space property simply does not apply to these lots as there
is very cleaz evidence that the lots were specifically purchased by the City in order to
expand the Wheeler Opera House and not "for open space purposes."
Question #4: Can RETT funds be used to purchase or lease other properties?
There is evidence in the archives that at the time surrounding the 1979 RETT ballot question
that there were plans to build additional theater facilities off-site (off-site meaning in a
location other than the Wheeler Opera House or adjacent lots.) For example, one of the
master plans proposed before the RETT ordinance recommended that, along with the
Wheeler's renovation and reconstruction, there be construction of a lazger theater in an off-
site location such as the Rio Grande Plaza area. This recommendation was not, however, as
definitive as the recommendations that the City use the adjacent lots for the
expansion/renovation effort, nor is there specific language anywhere that indicates such off=
site theatre construction would be funding, wholly or partially, through the Wheeler RETT.
None of the City's formal documents (the ordinance imposing the RETT, the resolutions
authorizing the condemnation of land, and the resolution for purchasing land) provide any
evidence of an authorization for using the RETT funds for off=site buildings or facilities.
In the most recent effort, some members of the public have suggested that space be leased or
purchased elsewhere in order to reduce the size of a Wheeler expansion or remove the need
for an expansion entirely, which thus raises the question of whether RETT funds can be
used for off-site support of Wheeler program and operations. One could azgue that the 1979
voters certainly intended to allow the use of RETT funds for the continuing "maintenance"
of the opera house; thus, any legitimate costs to maintain the operations of the theater,
whether spent off-site, or not, should be eligible for RETT fund expenditures. The RETT
ordinance does not specifically mention "operational costs," but refers only to "renovation,
reconstruction and maintenance. "Over the yeazs, RETT funds have in fact been used for a
vaziety of operational costs of the Wheeler, including expenses "off-site." For example, the
Wheeler has for years paid its share of City overhead costs, in keeping with all other City
departments.
In 2008, City Council adopted an ordinance that clarified the meaning of "renovation,
reconstruction and maintenance" to include "those activities, operations, or physical
improvements necessary to the citizens to ensure a performing arts venue and an
endowment fund in perpetuity. "
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The only true test of whether Wheeler RETT funds could be used for anoff--site purchase
occurred in November 2003, with the ballot issue regazding the proposed purchase of the
Mother Lode Restaurant. In that instance, City Council felt comfortable in presenting this
option to the Aspen citizenry for its acceptance or disapproval through a public vote. In that
particulaz case, the opportunity did not receive voter approval; however, the significant issue
is that it was generally accepted that a public vote was the proper course for determining
whether Wheeler RETT funds could be used for this purpose.
Question #S.• Can the Wheeler RETT funds be used to pay for the expansion ofthe Wheeler
Opera House?
An endowment fund was created by the City Council in 2002 for the stated purpose of "the
future funding of the Wheeler Opera House. "The goal and intention of the City Council at
the time of the ordinance, acting at the behest of the Wheeler Board of Directors, was to
secure not less than $40 million before the Wheeler RETT expired in 2019, and that amount
of money would help support the Wheeler into the future. The ordinance does specifically
state that "[aJll monies deposited into the Wheeler Endowment Fund as principal shall be
utilized for investment purposes only and may not be extended or used for any other
purpose. "City Council, however, has the authority at any time to adopt a new ordinance
that supersedes the 2002 ordinance establishing the endowment fund. In other words, the
City Council in 2002 was free to follow the lead of the Wheeler Boazd of Directors and
establish an endowment fund and attempt to describe how it may be used in the future, but
its action can in no way legally bind future City Councils to their decisions. Also, there is
sufficient evidence that in 2003 the Wheeler boazd intended to purchase the Mother Lode
property through the use of RETT funds, which would likely have necessitated alteration or
revocation of the 2002 ordinance.
Question #6: Can voters legally approve an sy ort of debt frnancinQ issue for a Wheeler
expansion that would be paid back through Wheeler RETT funds?
Section 8 (Application of Funds) in the 1979 ordinance that created the Wheeler RETT
specifically states that monies collected through the real estate transfer tax may be used
"only for the purpose of renovation, reconstruction and maintenance of the Wheeler Opera
House or for the payment of principal and interest on bonds issued for such purposes..... "
As there is already precedent for use of RETT funds to repay debt acquired for its
purchasing purposes (the 1982 purchase of the Wheeler pazcel, as described above), it can
be reasonably expected that any future debt financing may also be constructed and executed
using RETT funds for payment, provided that such debt financing meets with public
approval through a ballot issue.
Final notes
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The Wheeler RETT is one of the great beneficial actions ever undertaken for any theatre in
the United States. It has allowed a small theatre -one without access to the kind of critical
seating mass necessary to succeed financially from daily operations - to not only complete a
significant historic renovation of an endangered facility, but to maintain it through its
fledgling years and then to take advantage of sustained yeazs of an exceptional economy.
Rarely does a theatre have the opportunity to return to a visionary plan for its facility and
complete it decades after the fact, but the Wheeler RETT has provided well for the City of
Aspen and now presents sufficient funds to finish the project and answer the needs of the
town's arts community that have been expressed for more than thirty five years.
The role of the custodians of both the Wheeler Opera House and the RETT funds that help
sustain it is to ensure that in all matters and at all times, uses of the RETT aze kept in
compliance with both the original intention of the tax as well as current and long-term needs
of the Wheeler and the arts community it serves. This delicate balancing act can only be
achieved by periodic review of the history of the Wheeler RETT, and testing it against
anticipated current and future needs. The intended purpose of the Wheeler RETT has been
cleaz from the beginning of the renovation and expansion planning process in the 1970s
through the implementation of the RETT and its use to acquire the adjacent lots for
expansion purposes and on through the proposed purchase of the Mother Lode property with
RETT funds. By tracing the Wheeler RETT's trail over the course of three-plus decades,
staff feels confident that the purposes currently being considered -those being the execution
at last of a plan for an expanded and thus completed Wheeler -comply in all regazds with
this history and intent.
Staff recommends that City Council obtain voter approval to: (a) extend the RETT beyond
its current expiration in 2019 and (b) use RETT funds for construction of an expansion
facility. This action would be consistent with the 2003 Mother Lode property acquisition
ballot question and would ensure appropriate public involvement and approval of the next
phase of the Wheeler's service to the community.
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