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CITY COUNCIL AGENDA July 26, 2010 5:00 P.M. 4 pm Executive Session Call to Order Roll Call III. Scheduled Public Appearances a) Proclamation — "Aspen Mayor for a Day" — Cory Lowe b) Proclamation — Gaden Shartse Monk Week IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) Resolution #52, 2010 — Spending Approval Server Virtualization Project b) Resolution #53, 2010 — Contract ISC Virtualized Server Project c) Resolution #54, 2010 — Capital Improvement Cap Limitations for 45 Callahan Court d) Resolution #55, 2010 — Calling Special Election November 2, 2010 e) Resolution #50, 2010 — Contract AABC Concrete Trail Replacement f) Minutes —July 12, 2010 VII. First Reading of Ordinances a) Ordinance #17, 2010 — Code Amendment — Signs P.H. 8/23 b) Ordinance #18, 2010 — Open Space Bonds P.H. 8/9 c) Ordinance #19, 2010 — Charter Amendment Defining Publication P.H. 8/9 VIII. Public Hearings a) Resolution #56, 2010 — Temporary Use — 308 East Hopkins IX. Action Items a) Resolution #57, 2010 — Ballot Question — Charter Amendment Defining Publication X. Adjournment Next Regular Meeting August 9. 2010 COUNCIL'S ADOPTED GUIDELINES ✓ Stick to top priorities ✓ Foster a safe, supportive, innovative 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. SPECIAL MEETING CALLED FOR EXECUTIVE SESSION Date July 26, 2010 Call to order at: 14 /0 m. L Coipcilmembers present: Councilmembers not present: Mick Ireland ❑ Mick Ireland [✓� Steve Skadron ❑ Steve Skadron []Dwayne Romero ❑ Dwayne Romero [Torre [I Torre []Derek Johnson ❑ Derek Johnson ( %f ,, II. Motion to go into executive session by ; seconded 1� L& ,4 -Lt Other persons present: AGAINST: FOR: [cJ'Mick Ireland [Steve Skadron []Dwayne Romero gTorre Uc 6erek Johnson ❑ Mick Ireland ❑ Steve Skadron ❑ Dwayne Romero ❑ Torre ❑ Derek Johnson III. MOTION TO CONVENE EXECUTIVE SESSION FOR THE PURPOSE OF DISCUSSION OF: C.R.s. 24 -6- 402(4) a® he purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest ®Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions. (c) Matters required to be kept confidential by federal or state law or rules and regulations. (d) Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law; (e) Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators; (t) (I) Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting. IV. ATTESTATION: The undersigned attorney, representing the Council and being present at the executive session, attests that the subject of the unrecorded portions of the session constituted confidential attome lient c nication: //1! The undersigned chair of the executive session attests that the discussions in this executive s ssion were limited to the topic(s) described in Section III, above. Adjourned at: sc- jp EXISTING IN COOPER V PER A VE, LOOKING WEST t k f °J s '.c _ 14 PROPOSED a , r a hF lions 1*4 iik ps film 1 JW F .4( j I �fi Of A_-TX RO V]..__..... Pave 1 of ] http: // 205. 170.51. 230 /website /parcels/MapFrame.htm 7/26/2010 For Aspen City Council Please: Hold a public hearing with real public input, not the show 8E tell presentation. Also explaining why the AAM's proposal is not being first reviewed by P at Z and then by council with normal public input on the record? Make a record. a. This proposed new AAM building has both civic and architectural problems that must be brought to light and then addressed before any approval is granted in any way. b. What about the new building that is to the west of the proposed AAM? Is it a part of this complex? Included or separate? If it's separate, then why? c. What about our community values? Will the proposed action void or limit the Council's ability to reject future proposals that may also be contrary to AACP? Have you opened a door? Cl. Both staff and the public have spent many months working on the updated AACP. This action is an insult to them as it now puts politics before policy. Shame on you. e. What happens if there is a petition & referendum challenging this? f. It appears that Council is rushing to do something fast in order to try and moot the possibility of a referendum. The something was conceived in the dark and behind closed doors. You are creating a real story for the: "Red Ant g. Where is the transparency in this proposed action? Don't try and hide behind a legal shield. Presenting the conclusions to the public as a courtesy, is not the Aspen way. h. " Great cities are the result of careful planning - others are the result of haste and greed. " V14b MEMORANDUM TO: FROM: THRU: DATE OF MEMO MEETING DATE: RE: Mayor and City Council Fred Dick, IT Network Manager Steve Barwick, City Manager Jim Considine, IT Director July 19, 2010 July 26, 2010 Spending Approval — Server Virtualization Project REQUEST OF COUNCIL: The Information Technology (IT) Department, a joint City /County department, requests approval to spend previously approved budget in the amount of $211,338 (shared 50/50 with Pitkin County) for the Server Virtualization Project. PREVIOUS COUNCIL ACTION: In January 2010 the Aspen City Council and Pitkin County BOCC approved budget for the IT Server Virtualization Project. BACKGROUND: Server virtualization is a technology that makes it possible to run multiple instances of virtual servers on a single physical server. The City of Aspen & Pitkin County (COAPC) network currently has 65 network servers, with 30 -45 of those servers having been identified as likely candidates for virtualization. The Phase 1 implementation includes: • Implementation of virtualization hardware and software, • Virtualization of 12 existing or new servers, • Replacement of a core network switch to expand capacity and increase network speed, IT Server Virtualization Project —Memo to City Council, revised 071071'2010, by Fred Dick 2 • Expansion of network storage capacity to accommodate both server and database replication, and • Expansion battery backup equipment to increase up -time in case of power failure. Once Phase 1 is complete, IT Staff will begin Phase 2. The second phase will include virtualization of an additional 15 to 20 servers. We estimate that over the next three years our current fleet of 65 physical servers can be reduced to 20 physical servers. This equates to a 70% reduction in the number of physical servers. We would also enjoy a significant decrease in demand for our current, critically oversubscribed power, space, and cooling infrastructure needs. BENEFITS: The Server Virtualization Project will provide the following benefits to the COA/PC network: • Improved Disaster Recovery capabilities — Key networked applications, located at our primary location in City Hall, will be automatically replicated to our secondary location at the Pitkin County Courthouse. In case of a failure at City Hall, these important programs could then be quickly activated at the Courthouse location, • Allows for e- commerce expansion — new network structure allows public transactional access to City and County databases while maintaining internal security, • Reduced power, physical space, and cooling needs — although City and County are improving or planning to improve existing network data center facilities, virtualization will significantly extend the life of these new physical plant improvements, • Improved efficiency — virtualization allows for the rapid deployment of new servers, provides a robust test environment, and enables centralized management of server inventory. DISCUSSION: IT issued an RFP in March 2010 requesting a vendor to supply the COA/PC network with a "turn -key" Server Virtualization system. The successful vendor was ISC Corporation based locally in Englewood, CO. FINANCIAL /BUDGET IMPACTS: Pitkin County and City of Aspen are contributing 50150 to this project's total cost. The funding for this project was approved in the IT 2010 CIP budget. $213,000 is budgeted in the Virtualization Plan and $50,000 in the Website Plan for a total of $263,000. For Phase I we are requesting a total of $211,338. The breakdown of requested expenditures includes: IT Server_ Virtualization Project —Memo to City Council, revised 0710712010, by Fred Dick 3 • The contract with ISC totals $152,616 for the design, implementation, and testing of the virtualization system, virtualized servers, and associated network improvements, • We also require additional SAN equipment to expand our storage capacity at a cost of $58,722. ENVIRONMENTAL IMPACTS: Initially we expect to consume slightly more resources than at present. This increase is due to the fact that Phase 1 begins with us deploying new equipment, while still needing to keep the old equipment running. Once the initial deployment and data transfer is accomplished we will remove the old devices. At this point we will begin to see some energy and other savings. Phase 2 will realize further energy savings as our existing servers are consolidated onto the virtualized hardware. ALTERNATIVES: Do nothing. Doing nothing would add to our current power shortage, increase our already critical cooling loads situation, and require more physical space. In short, it would adversely affect IT's continued ability to provide reliable, timely and cost effective network servers and services to our COA/PC customers. RECOMMENDED ACTION: Approve spending of existing budget in the amount of $211,338. PROPOSED MOTION: `Y move to approve IT's expenditure of existing and approved budget in the amount of $211,338 for Server Virtualization and other related network enhancements. " CITY MANAGER COMMENTS: 6:) V Q JI ATTACHMENTS: - -end of file -- IT Server_ Virtualization Memo to City Council, revised 07/07/2010, by Fred Dick RESOLUTION # J (Series of 20 10) A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND LEWAN AND ASSOCIATES SETTING FORTH THE TERMS AND CONDITIONS REGARDING THE PURCHASE OF STORAGE AREA NETWORK ARRAYS 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 Lewan and Associates the, 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 Lewan and Associates regarding the purchase of Storage Area Network Arrays 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, July 26, 2010. Kathryn S. Koch, City Clerk The Citr ollisoen CITY OF ASPEN STANDARD FORM OF AGREEMENT - 2009 SUPPLY PROCUREMENT City of Aspen Project No.: 2010 -052. AGREEMENT made as of 14 day of July, in the year 2010. BETWEEN the City: The City of Aspen c/o IT Department 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5055 And the Vendor: Lewan and Associates c/o Greg Ask 2900 Center Green Court, E Boulder, CO 80301 Phone: 303. Sy(• 2-85C Contract Amount: Total: $58,722.00 If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval Date: Resolution No.: 5 d - - 2C> Lb Summary Description of Items to be Purchased: Storage Area Network Arrays - part of Virtualized Server Project Exhibits appended and made a part of this Agreement: Lxhibit A: List of supplies, equipment, or materials to be purchased. The City and Vendor agree as set forth below. I. Purchase Vendor agrees to sell and City agrees to purchase the item s on Exhibit A appended hereto and by this reference incorporated herein as if fully set forth here for the sum set forth hereinabove. 2. Delivery (FOB 130 S. Galena Street, Aspen, CO 81611.) [Delivery Address] 3. Contract Documents This Agreement shall inc Jude all Cc ntract Documents as the same are listed in the Invitation to Bid and sa id Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties (manufacturer's warranty applies) 5. Successors and Assigns This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to as sign, transfer or sublet its in terest or obligations hereunder without the written consent of the other party. 6. Third Partie s . This Agreem ent does not and sha II not be deem ed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City in ay assign this Agreem ent in accordan cc with the sp ecific written perm ission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because o f any of the term s, covenants, ag reements or conditions herein contained. 7. Waivers No waiver of default by either pa rty of any of the term s, covenants or conditions hereof to be perform ed, kept and observed by the othe r party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 8. Agreement Made in Colorado . The parties agree that this Agreem ent was in ade in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. Attorney's Fees In th a event tha t lega I action is ne cessary to enf orce any of th e provisions of this Agreem ent, the prevailing part y shall be entitled to its costs and reasonab le attorney's fees. 10. Waiver of Presum Dtion This Agreem ent was negotiated and reviewed through the mutual efforts of the parties he reto and the par ties agree that no construction shall be in ade or presumption shall arise for or against eith er party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. II. Certification Regarding Debarm ent, Su sspension, Ineli ig bility, and Voluntary Exclusion Vendor certifies, by acceptance of this Agreem ent, that neither it nor its principals is presently debarred, suspended, proposed for deba rment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or St ate department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, propos als, contracts and su bcontracts. In the even t that Vendor or any lower tier participant was unab le to certify to the st atement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees, Gratuities. Kickbacks and Conflicts of Interest (A) Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreem ent or understanding for a comm ission, percentage, brokerage, or cont ingent fee, excep ting bona fide em ployees or bona fide established commercial or sel ling agencies maintained by the Vendor for the purpose of securing business. (B) Vendor agrees not to give any em ployee of the City a gratuity or any offe r of employment in connection with any deci lion, approval, disapproval, recommendation, preparation of any part of a program require ment or a purchase request, influencing the content of any specification or procurem ent standard, rendering a dvice, investigation, auditing, or in any oth er advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular in atter, pertaining to this Agreement, or to any solicitation or proposal therefore. (C) Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement o r th e p roceeds thereof, except those that in ay have been disclosed at the time City Council approved the execution of this Agreement. (D) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4. Recover such value from the offending parties. 13. Termination for Default or for Convenience of City . The sale contem plated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14. Fund Availability Financial obligations of the City payable of ter the c urrent fiscal year are contingent upon funds for that pu rpose being appropriated, budgeted and otherwise made available. If th is Agreement contemplates the City us ing state or federal funds to meet its obligations herein, this Agreem ent shall be con tingent upon the availabili ty of those funds for payment pursuant to the terms of this Agreement. 15. City Council Approval . If this Agreem ent requires the City to pay an am ount of money in excess of $10,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. Non - Discrimination No discrim ination because of race, color, creed, sex, in arital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be in ade in the employm ent of persons to perform under this Agreem ent. Vendor agrees to meet all of the requirements of City's municipal code, section 13 -98, pertaining to nondiscrim ination in em ployment. Vendor £urthe r agrees to com ply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and federal laws respecting discrimination and unfair employment practices. 17. Integration and Modification . This written Agreem ent along with all Contract Documents shall constitute the contract b etween the parties and supersedes or incorporates any prior written and oral agreem ents of the parties . In additio n, vendor understand s that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreem ent or to in odify the tern s of the Agreem ent on behalf of the City. Any such Agreem ent or modification to this Agree ment must be in writing and be executed by the parties hereto. 18. Authorized Representative . The undersigned representative of Vendor, as an inducement to the City to execute this Agreem ent, represents that he /she is an authorized representative of Vendor for the purposes of executing this Agreem ent and that he /she has full and com plete authority to enter into this Ag reement for the term s and conditions specific d herein. IN WITNESS WHEREOF, The City and the V endor, respectively have caused this Agreem ent to be duly executed the day and year f irst herein written in three (3) cop ies, all of which, to all intents and purposes, shall be considered as the original. [SIGNATURES ON FOLLOWING PAGE] FOR THE CITY OF ASPEN: ATTEST: By: City Clerk 1/ ►11t �yw�� � ✓�$SOG�`�eS ZN� By: g GG Ow K -L G via sl P.� r Title City Manaber Exhibc+ "A 1 , ! 7 • an A r, s tl , , . , Ot ', + . f Lewan & Associates 2900 CENTER GREEN Cr, 'E' BOULDER, Colorado 80301 United States hhp: / /www,lewan.com 12, 2010 11:43 AM Date )T Aug 11, 2010 is # 568 - rev 1 of 1 ucription ualLogic storage Vmware project k, Grg (P) 303 -541 -2855 (F) 3 -447 -09122 �stomer Contact Customer City of As n ((CO3623) 130 S Galena St Aspen, Colorado 81611 (P) 970 -029 -1750 Bill To City of Aspen Glaser, Rich 130 S Galena St As an, Colorado 81611 (p) 970 - 429.1750 Ship To City of Aspen Glaser, Rich 130 S Galena St As an, Colorado 81611 (P)970 -429 -1750 —] Customer PO: Teens: None Via: None Unknown FedEx Ground Npedal Instructions: Carder Amount #: None None e 1 _. Equa Lo91c PS6000 1 T8 w/iyear NBD Support , 560 E } 2 No Subtotal: $58,622.00 Shipping: $100.00 Total: $58,722.00 This Quote is valid for 30 days unless otherwise ER. Please contact a LCwan & Sales Representative for qquestlons or cha�r+y9e Thank You for the opportunity to be of 5ervicel *DENVER- * FORT PRINGS- N ORT COLLINS* COLL[NS* COLORADO SPRINGS* BOULDER" SILVERTHORNE* CHEYENNE* GLEWOOD SPRINGS* PUEBLO - Prices Indicated may not Include er in sales taxes, insurance shipping, delivery or setup fees; actual the es will be ut I ho lateddn your Invoice' Orders are In the order in which they are supply av ail abi li t y. Without an RA rization) number, products may not be a ret r order scions R e t u rn ed product may be Subject subject t to a restocking cking c harge. Please e contact our Returns rns Deep Autho Department at 303 -759 -1545, extension 2296, for questions or to to ini tiate a return. RESOLUTION # 5 3 (Series of 20 10) A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND ISC CORPORATION SETTING FORTH THE TERMS AND CONDITIONS REGARDING PROVIDING EQUIOPMENT AND PROFESSIONAL SERVICES FOR THE VIRTUALIZED SERVER PROJECT 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 ISC Corporation the, 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 ISC Corporation regarding providing equipment and professional services for the Virtualized Server Project 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, July 26, 2010. Kathryn S. Koch, City Clerk CITY OF ASPEN STANDARD FORM OF AGREEMENT - 2010 The City of Gsoen City InernavI00ice o � i c J , �nce. f `�g•�Fusc. PROCUREMENT SUPPLY AND PROFESSIONAL SERVICES City of Aspen Project No.: 2010 -013 AGREEMENT made as of 12 °i day of July, in the year 2010. BETWEEN the City: The City of Aspen c/o Fred Dick 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920 -5055 And the Professional: ISC c/o Jeff Horning 8680 Concord Center Drive Englewood, CO 80112 Phone: 888 -525 -8933 For the Following Project: Contract Amount: Procurement: $120,375.95 Professional Services: $32,240.00 Total: $152,615.95 If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval Date: July 12, 2010 Resolution No.: 53 — ��o I D Virtualized Server Project Exhibits appended and made a part of this Agreement: Exhibit A: List of supplies, equipment, or materials to be purchased. Exhibit B: Scope of Work. Exhibit C: Hourly Fee Schedule. Agreement for Procurement and Professional Services Page 0 The City and Professional agree as set forth below. SUPPLY PROCUREMENT 1. Purchase Professional agrees to sell and City agrees to purchase the supplies, equipment, or materials as described in Exhibit A, appended hereto and by this reference incorporated herein, for the sum of set forth above. 2. Delivery (FOB 130 South Galena Street, Aspen, Colorado) 3. Contract Documents This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid or Request for Proposals and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties Manufacturer's Warranty applies. 5. Successors and Assigns This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Professional respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Professional shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. PROFESSIONAL SERVICES 6. Scope of Work Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit B attached hereto and by this reference incorporated herein. 7. Completion Professional shall commence Work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than December 31, 2010 with the installation and operation of all the equipment no later than December 31,2010 Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 8. Payment In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit C appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed the amount set forth above. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. Agreement for Procurement and Professional Services Page I 9. Non -Assi nag bility Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub - Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors' officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub - contractor. 10. Termination of Procurement. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 11. Termination of Professional Services The Professional or the City may terminate the Professional Services component of this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set -off until such time as the exact amount of damages due the City from the Professional may be determined. 12. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 13. Indemnification Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self - insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, Agreement for Procurement and Professional Services Page 2 the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 14. Professional's Insurance (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self - insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, Agreement for Procurement and Professional Services Page 3 independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non - owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24 -10 -101 et Agreement for Procurement and Professional Services Page 4 seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 15. City's Insurance The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty /Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 16. Completeness of Agreement It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 17. Notice Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 18. Non - Discrimination No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13 -98, pertaining to non - discrimination in employment. 19. Waiver The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 20. Execution of Agreement by City This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens — CRS 8- 17.5 -101 & 24- 76.5 -101. (a) Purpose During the 2006 Colorado legislative session, the Legislature passed House Bills 06 -1343 (subsequently amended by HB 07 -1073) and 06 -1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly Agreement for Procurement and Professional Services Page 5 contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Public Contract for Services" means this Agreement. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. (c) By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not employ illegal aliens. (d) Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Agreement for Procurement and Professional Services Page 6 Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre - employment screening of job applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8- 17.5 -102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8- 17.5 -102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8- 17.5 -102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24- 76.5 -101 et seq., and (3) shall produce one of the forms of identification required by CRS 24- 76.5 -103 prior to the effective date of this Agreement. 21. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest (a) Professional warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a Agreement for Procurement and Professional Services Page 7 commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 22. Fund Availability Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 23. General Terms (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof Agreement for Procurement and Professional Services Page 8 and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. Agreement for Procurement and Professional Services Page 9 IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. CITY OF ASPEN, COLORADO: PROFESSIONAL: [sigh-] By: [Name] Title: Date Approved as to form: City Attorney's Office `Lg By: <'it 1 �✓ VI iVM [Name] Title: �m Date: �7 11 1/ho Agreement Professional Services Page 9 Ex,hibif 'A ��v Ise Cometle brews ISc Wyo rl' olflo. MO Cord Center ome wl eeetlieoN Englexaotl, co W112 caeper, WY Rant Phone (303) 70 -1160 Pro (303) 7643733 Prone (W7) 473.8933 Fee (307) 4Y 8991 DATE: July 12, 2010 Quote # CA07122010 Customer: City of Aspen Customer Contact: Jim Considine Catal sl45tod2 E -Series Su 6 -E, 2x10GE(X2 ) wl Twin Gig 130 South Galena St (970) 429 -1751 Product & Services Quote Equipment Payment Terms: Net Due Upon Receipt. Services Payment Terms. 50% Project Services due at Project Start - 50% Project Services due Upon Project Completion. S nn W QUAN117Y 1 SALESPERSON Jeff Horning PART NU C Hail Co WS- C451ORE- S&96V+ 888- 525 -8933 jhoming @isccorp.net 1110011F 4510.E Chassis, TwaWS- X4648- RJ45WE, Sups E $ $ 30,000.00 $ 17400.00 Due on receipt LPPoCE $ 17,400.00 1 WS- X45- SUP6 -E/2 Catal sl45tod2 E -Series Su 6 -E, 2x10GE(X2 ) wl Twin Gig $ 19,995.00 $ 11,597.10 $ 11 ,597.10 4 CVR- X2 -SFP Claw Ti-AnGo Converter Module $ $ $ 1 FR45 -ISSU- POE -LIC Cat4600 ISSU PoE promo. license needs dual sup +48PoEports $ $ $ 1 WS -X4 &SUP &E Catalyst 4500 E -Series Sup &E, 2 %lOGE(X2) w/ Twin Gig 6 $ $ 2 WS- X4648- RJ46V +E Catalyst 4500 E-Senes 48-Pon PoE +Ready 10/10011000(RJ45) $ $ $ 2 CAB- AC- 280OW - 6-20 Non-locing NEMA Cord For The 2800WAC PS $ $ $ 1 PWR- C45- 2800ACV Catal 4500 280O AC Power Suieply Data and PoE $ 1,995.00 $ 1,157.10 E 1157.10 1 PWR- C45- 2800ACV 12 Catal 4500 280O AC Power Supply Data and PoE $ 1,995.00 $ 1,157.10 S 7767.70 1 $45EIPBK9- 12253SG Cisco CAT4500E IOS IF BASE SSH $ $ $ 1 WS- X441 8-GB Catalyst 4500 GE Module, Seaver Switching 1&POrta GBIC) $ 9,995.00 $ 5,797.10 $ 5,797.10 3 WS-X454 8-GB -RJ45 Catalyst 4500 Enhanced 4 8-Port 10 1100 11000 Basa-T (RJ-45) $ 5,495.00 $ 3,187.10 It 9561.30 1 CON -SNT- WSC451RE SMARTNET 8X5XNBD 4510 -E Ch9s,TwoWS- X4648- RJ45V +E, SOPS -E $ 2,450.00 $ 2,205.00 $ 2,205.00 1 Proftsional Services Complete wnf unatron, pir management, tnimin , documentation of 4510 Care Switch $ 6,300.00 $ 6,300.00 $ 6,300.00 Move XS module free, exadfing CH 3750E b 4510 Sup 6 -E for 10G wnnectisfy. $ $ 1 Prokirsiorral Services Move 6148 Blade and Supervisor to CH 6509 for servers . Move 3750 hom CH ter SAN $ 5.640.00 S 5.640.00 $ 5,840.00 CAT OS to IOS - Complete implementation, training, documentation $ 8 3 224 -8462 PE R710 with Chassis for Up to 6, 3.5 -Inch Herd Drives and Intel 56XX Processors - $ 9,392.55 $ 9,392.55 $ 2$,177.66 3 317 -2220 48GB Memo ry (6,c8 1333MHz Dual Ranked! RDIMMs for 2 Processors, Optimized $ $ $ 3 430.2970 Embedded Broadwm, GB Ethernet NICS with TOE and ISCSI Offload Enabled $ $ $ 3 430.1764 Embedded Broadloom, GB Elhemel NICS with TOE $ $ $ 3 3174106 Intel Xeon X5670, 2.93Ghz, 12M Cache,Turbo, HT, 1333MHz Max Main $ $ $ 3 3174118 Intel Xeon X5670, 2.93Ghz, 12M Cache,Twbo, HT, 1333MHz Max Mem $ $ $ 3 317 -1213 PowerEtl a R710 Heat Sinks fort Processors $ $ $ 3 341 -8718 146GB 15K RPM Serial- Attach SCSI 3Gbps 3.5in Hotplug Hard Dnve $ S $ 3 341 -9152 PERC bd SAS RAID Controller 2x4 Connectors, IMemel, PCIe256MB Cache, x6 Chassis $ S $ 3 330.3491 Power Saying BIOS Sewn g $ $ $ 6 430-0644 Intel Gigabit ET Owd Port NICPCIa -4 $ $ $ 3 467-8649 IDRAC6 Express $ $ $ 3 3139092 DVD ROM, BATA, INTERNAL $ $ $ 3 341 -8718 146GB 15K RPM Serial- Attach SCSI 3Gbps 3.5in Hotplug Hard Dave $ $ $ 3 341 -8698 RAID 0 for H700, PERC 56, H2O0 or SAS SIR Controllers $ 8 $ 3 9938458 Dell Hardware Limited Warranty Extende l Year $ $ $ 3 9935447 Dell Hardware Limited Warranty Plus On Site Service Initial Year $ $ E 3 988 -5084 Pro Su oft for IT Next Business Day Onsite Service After Problem Diagnosis, 4 Year Eider $ 8 $ 3 9932320 Pro Support for IT: Next Business Day Onsite Service After Problem Diagnosis, Initial Year $ $ E 3 98 &5124 ProSuppon for IT: 7x24 H W / SW Tech Support and Assistance for Certified IT Staff, 5 Year S $ $ 3 1 330.3475 High Output Pawer Supply Redundant, 870W $ S $ 8 310.8509 Power Cord, NEMA &15P to C13,15 amp, wall plug, 10 feet / 3 meter $ S $ 3 344 -8718 146GB 15K RPM Serial -Attach SCSI 3Gbps 3.5in Hotplug Hard Drive $ S $ 3 1 351 -6553 CFI,Multi,Intermation, RAIDI. 2HO Factory Install $ S $ THANK YOU FOR YOUR BUSINESS! QUANTITY 3 PART NUMBER 361 -8968 DESC CH Information, Hotspare,Hard Drive, Factory Install $ S $ 3 361 -1722 CFI,Infonnation,HeM Drivejnstall Increasing OMer,Faato Install $ $ 3 364 -1846 CFI Titan Code for CFI FIDA orBypass SI $ $ S 3 3647502 CFI Bypass EIDO $ $ $ 3 365 -0257 CFI Routing SKU $ $ $ 3 366 -4303 CFI,RoII ,Int ration, OR- Raid,Without OS.Ser.r $ $ $ 3 375-0789 CFI,9104CG,Infonnabon, ORDRDY,Facto Install $ $ $ 3 375-3088 CFI,Infonnabon,CSRoutin ,Eli Ible,Factory Install $ $ $ 3 SHIP Estimated Ground Shipping $ 70.00 $ 70.00 S 210.00 1 VS4-MS -AK -C VMware vSphere Midsize Acceleration Kit for 6 processors E 17,795.00 E 00 $ 14,236.00 1 VS4- MS -AK -P -SSS -C Production S oNStASCn lion for VMware vS here Midsize Acceleration Kit for 6 rocess $ 4,449.00 04 $ 4,271.04 4 VC- SRM4-C VMWARE VCENTER SITE RECOVERY MANAGER 4 FOR 1 PROCESSOR $ 1,750.00 .00 $ 5,600.00 4 VC-SRM4P -SS&C PRODUCTION SUPPORT /SUBSCRIPTION FOR VMWARE VCENTER SITE RECOVERY $ 438.00 .48 $ 1,661.92 1 VSC- STD -C VMware vCenter Server 4 Standard for vB ere Includes Orchestrator and Linked Mode) $ 4,995.00 .00 t 3,996.00 1 VCS- STD -P -SSS -C Production Su oNSubscri lion for vCenter Server 4 Standard $ 124900 .04 $ 1199.04 1 Ph lbastunef Services Complete configumbon, inject management, Gaining, documentation of wdualuabon enwro $ 20.300.00 .00 $ 20,300.00 4 SYPM4KP APC POWER MODULE SYMMETRA LX 4KVA 208/240V $ 1 625.00 .75 $ 6,175.00 2 SYST5 APC SYMMETRA IX 4KVA BATTERY MODULE $ 469.00 $ 445.55 $ 991.10 2 SYAXR9B9 APC Symmetry LX Etdended Run Tower with 9 SY8T5 S 5,575.00 $ 4,850.25 $ 9,700.50 1 DMZ Switch CS724T- 300NAS Netgear ProSam GS724T Ethernet Switch -24 Fort -2 Slot S $ 42500 E $ 299.00 $ 299.00 Cat Patch Cables E $ 58 Cat 6 Cables Cat 6 Patch Cables $ 8.00 $ 8.00 $ 464.00 Lne Twde In spo Phas G" Ill 2x 634&6ledas.. $ 5400.00 S 5,400.00 00 t $ Total $ 152,615.95 THANK YOU FOR YOUR BUSINESSI Exh1b4 " 6 to 0 ISC Statement of Work For City of Aspen VM Ware v5phere & Switch Implementation ISC's Colorado Offices ISC's Wyoming Offices 8680 Concord Center Drive 401 East E Street Englewood, CO 80112 Casper, WY 82601 (888) 525 -8933 (888) 525 -8933 TABLE of CONTENTS 1 INTRODUCTION ...................................................................... ............................... 3 1.1. Project Summary ......................................................................... ............................... 3 1.1.1. Solution Summary ................................................................ ............................... 3 2 PROJECT SCOPE ................................................................... ............................... 5 2.1. Overview .................................................................................... ............................... 5 2.2. Assumptions, Risks and Scope Exclusions ..................................... ..............................5 2.3. Implementation .......................................................................... ............................... 7 2.3.1. Description of work .............................................................. ............................... 7 2.3.1.1. VMWare vSphere & Switch Implementation ........................ ..............................7 2.3.1.2. VMWare Site Recovery Manager .......................................... ..............................8 2.3.2. Deliverables ......................................................................... ............................... 9 2.3.3. Description of work .............................................................. .............................10 2.3.3.1. Switch and Networking Implementation and Configuration ............................10 3. PROJECT MANAGEMENT ..................................................... .............................11 3.1. Overview .................................................................................... .............................11 3.2. Project Contacts .......................................................................... .............................11 3.3. Knowledge Transfer .................................................................... .............................12 3.4. Project Closure ............................................................................ .............................12 4 BILL OF MATERIALS ............................................................. .............................13 STATEMENT OF WORK Introduction 1.1. Project Summary The goal of this project is to provide a robust "virtual" environment on which the existing physical servers can be migrated. The new virtual infrastructure is expected to provide improved efficiencies in terms of management, resource utilization and decreased deployment times for new server requests. Also included in this project is VMWare's Site Recovery Manager which will allow the customers virtual infrastructure to fail over to the DR site in the event of an emergency at the primary site. The core switch at City Hall will be replaced with the new 451OR -E with network and storage terminating into the new core. The County Courthouse 6509 will be upgraded from CATOS to IOS via the SUPII. The SUPII and 48 -port 10 /100 /1000 blade from the displaced City Hall 6509 will be leveraged in the County Courthouse 6509. The 37506 at City Hall will also be moved to the County Courthouse SAN switch cluster. Implementation as well as knowledge transfer are included in this project. 1.1.1. Solution Summary The City of Aspen, hereafter referred to as the customer, has requested ISC's assistance with the implementation of a virtual infrastructure. The solution will consist of the following equipment: Three (3) Dell R710 Servers Six (6) vSphere Enterprise CPU licenses Two (2) vCenter Standard licenses Four (4) Site Recovery Manager licenses Dell Equall-ogic Storage (Existing) Cisco Catalyst 451ORE Chassis switch Cisco Catalyst 6509 modifications /augmentations (existing) Statement of Work Introduction . 3 This information is not to be shared with any party outside City of Aspen without prior written approval from ISC. Locations) Details: City of Aspen - City Hall 130 S. Galena St. Aspen, CO 81611 City of Aspen - Courthouse 530 East Main Street Aspen, CO 81611 4 • Project Scope Statement of work This information Is not to be shared with any party outside City of Aspen without prior written approval from ISC. 2. Project Scope 2.1. Overview The project scope section below describes the assistance that ISC will provide the customer in implementing the solution as outlined in requirements and solution description sections above. This scope will outline the tasks that will be included in the project for both ISC and the customer's staff. 2.2. Assumptions, Risks and Scope Exclusions Assumptions for this proiect are detailed below: 1. The customer is responsible for providing the ISC engineering team with the necessary information to complete the configuration of the hardware /software prior to the ISC Engineer's arrival at the customer's site. 2. If the project extends beyond the mutually agreed upon timeline due to delays caused by parties other than ISC, additional charges will be provided to the customer for acceptance and payment. Risks that have been identified are detailed below with the responsible party for each: 1. Any additional storage which will be utilized, as part of this project is the responsibility of the customer. 2. Equipment locations must be dedicated and rack space available for all equipment (if a new rack /cabinet is not being installed by ISC) prior to the scheduling of the ISC engineer to be on -site. The customer will be responsible for ensuring this is completed. 3. All equipment must be received by the customer at their facilities prior to the scheduling of the ISC engineer to be on -site. The customer will be responsible for ensuring this is completed. Statement of Work Project Scope • 5 This information is not to be shared with any parry outside City of Aspen without prior written approval from ISC. Exclusions from the Scope of this proiect that have been identified are detailed below: 1. ISC is not responsible for the performance or quality of third -party vendors not brought in by ISC. If these vendors affect the project time line, additional fees might be assessed. 2. ISC will not be responsible for any engineering changes on any component of the customer's entire infrastructure, including any installation or configuration changes, made by the customer's staff or other vendors after project completion. ISC can be contracted to provide any installation and configuration services not covered in this Statement of Work on a time and materials basis. 6 • Project Scope Statement of work This information is not to he shared with any parry Outside City of Aspen without prior written approval from ISC. 2.3. Implementation During the implementation phase the ISC engineer will be working along with the customer's IT staff to install and configure the VMware software based on the customer's requirements. The initial portion of the project will involve gathering information from the customer regarding the design of the virtual infrastructure as well as disaster recovery plan information. The implementation will cover several areas; storage investigation, installation of the v5phere infrastructure, migration of several physical servers to the virtual infrastructure and implementation of the Site Recovery Manager software. 2.3.1. Description of work 2.3.1.1. VMWare v5phere & Switch Implementation 1. Storage will need to be allocated from the existing EqualLogic storage array. Enough storage will need to be allocated to support all of the virtual disk files of the servers that will be virtualized plus capacity for snapshot /replication luns. 2. Once the storage allocation has been completed, the new Dell Servers will be rack mounted and installed with the appropriate drivers recommended by Dell and VMware if needed. 3. The v5phere ESXi server software will be installed on each of the new servers per VMware best practice recommendations. 4. vCenter management server will be installed after the new servers are configured. The vCenter software utilizes Microsoft SQL server to store configuration and management information. If the customer has an existing SQL server in place, a new database can be created on that server; otherwise a new instance must be installed on the v5phere server. Alternatively for smaller environments (5 hosts or fewer) the Microsoft SQL Express database can be used. Each ESX host will then be added to the vCenter management console and the appropriate licensing will be applied. 5. The network infrastructure will be configured based on the customer's requirements. Configured components will include virtual switches, port groups and uplink ports. Statement of Work Project Scope e 7 This information is not to be shared with any party outside City of Aspen without prior written approval from ISC. y�r�s 6. The desired storage pools will be attached to the vSphere ESX servers for use by the virtual machines. These may include a mix of iSCSI and NFS volumes depending on the needs of the customer. 7. The selected physical servers will be migrated to the virtual infrastructure using the vSphere Converter utility. Depending on the type of server being imported, either a "hot" (Le.,, the server remains running) or a "cold" (the server will be powered down) migration will be performed. 8. Once the virtual machines are imported, the latest version of VMware Tools will be loaded and the host will be monitored to ensure that it is operating as expected and all resources such as storage and network are available. 9. ISC will demonstrate how to create a software image repository (.iso files) and how to mount them to a virtual machine as a CD /DVD drive. 30. The ISC technician will also demonstrate how to create a template for fast deployment of operating system images. 11. Advanced features such as High Availability and Dynamic Resource Scheduling will be enabled within vCenter and tested per the attached Test and Acceptance Plan. 2.3.1.2. VMWare Site Recovery Manager 1. Once the primary site virtual infrastructure is in place the site designated as the Disaster Recovery (DR) site will be deployed. 2. Prior to installing the Site Recovery Manager portion, it is important to organize the storage LUN's and the associated VMware Datastores based on the disaster recovery plan. ISC will work with the customer to determine the Disaster Recovery Plan requirements and the associated LUN mappings. 3. The components needed at both the Primary site as well as the DR site are the SAN infrastructure, VMware ESX server(s), vCenter server, Site Recovery Manager and the EqualLogic Storage Replication Adapters (SRA). 4. Once all of the components are in place and the data stores are arranged into the appropriate protection groups, the various DR plans can be developed and implemented. 8 • Project Scope Statement of work This Information is not to be shared with any party outside City of Aspen without prior written approval from ISC. 5. Once the new plans are implemented, each can be tested to verify that it works as desired. 2.3.2. Deliverables Description Responsible Party Discuss potential Disaster Recovery plan options ISC /Customer Rack /Install HP Servers ISC Installation of vCenter server ISC Installation of vSphere ESX servers into cluster ISC Configuration of networking/storage on ESX servers ISC /Customer Import of physical servers to virtual infrastructure ISC /Customer Test and Acceptance plan review ISC /Customer Statement of Work Project Scope • 9 This Information is not to be shared with any party outside City of Aspen without prior written approval from ISC. L� sM Maim 2.3.3. Description of work 2.3.3.1. Switch and Networking Imolementation and Configuration 1. ISC will unpack and inspect the new 451OR -E as specified in the BOM. 2. ISC will install the new 451OR -E into an existing rack at City Hall and facilitate the cutover from the existing 6509 LAN /3750 SAN switches to the 4510R -E. The 451OR -E will terminate all network connections including all LAN /MAN /SAN (ISCSI). 3. ISC will upgrade the existing 6509 in the Courthouse from CATOS to 105. 4. The displaced 6509 from City Hall will be cannibalized and the SUPII and 48- port 10/100/1000 blade installed into the Courthouse 6509 running ICS. 5. The displaced 3750 from the City Hall will be moved to the Courthouse and used for additional SAN connectivity. 6. ISC will establish a redundancy protocol such as HSRP between the 451OR -E at City Hall and the 6509 at the Courthouse. This will be determined by the installing engineer based on best practices for the current hardware. There will be one 30GE fiber connection from the 451OR -E and the Courthouse 3750E SAN Switch and one 1GE fiber connection between the Courthouse 6509 and the 451OR -E via existing X2 and GBIC modules. 10 • Project Scope Statement of work This information is not to be shared with any perry outside City of Aspen without prior written approval from ISC. M •VL.I� 3. Project Management 3.1. Overview ISC will assign a Project Manager (PM) responsible for overseeing the entire project, and will work with customer's project owner/ stakeholder, as defined below as a strategic partner. The ISC PM will be the focal point for contact for the duration of the project. The ISC PM will discuss any issues needing resolution, manage change control, and will work with the client to verify milestone dates essential to meet required in- service date. Through a documented strategy, the PM will work with the customer to verify that the account manager & pre -sales engineer have clearly defined the project requirements and documented these requirements in the Statement of Work, schedule and plan the project's successful completion, and then work with the customer and ISC resources to implement the project. To facilitate the management of this project, the customer must designate a person to serve as the primary point -of- contact (Project Owner / Stakeholder) for the project, having the authority to make decisions about project and system operations, and will be accountable for reporting task status both internally and to the ISC PM. The ISC PM will conduct a formal project kick- off /Statement of Work Review meeting inviting all major project stakeholders. During this meeting, the PM will confirm the customer's business goals and acceptance criteria for this integration project. 3.2. Project Contacts Name Company Primary Phone Pager /Cell Email Number Number Jeff Horning ISC 888 -525 -8933 jhorning @isccorp.net Liz Orr ISC 888 -525 -8933 lorr @isccorp.net Mike Harner ISC 888 -525 -8933 mharner @isccorp.net Jeff ISC 888 -525 -8933 jehrenhart @isccorp.net Ehrenhart Jim City of 970 - 429 -1752 jimc @ci.aspen.co.us Considine Aspen Statement of Work Project Management • 11 This information is not to be shared with any part/ outside City of Aspen without prior written approval fro n ISC. 3.3. Knowledge Transfer As part of the project, training will be provided on the daily operations of the VMware environment. This training is not meant to replace formal VMware training but is instead meant to provide the customer with the basic tools required to perform common tasks. Part of the training will be provided during the installation and configuration of the hardware /software components and the customer is encouraged to participate as much as possible. Examples of items that will be covered include: Basic Virtual Machine management in VMware vCenter (create /delete /modify VM's) - Basic monitoring of the performance of the VMware environment - Basic resource management (network, storage, memory etc). - Basic user permission management in the VMware environment. - Configuration of advanced features such as High Availability. - Creation and Modification of Disaster Recovery Plans - Testing and implementing Disaster Recovery Plans - Options for Failing back from a failover. 3.4. Project Closure Upon completion of the stated implementation deliverables, the ISC Engineer will review the attached Test and Acceptance Plan to ensure that all items have been completed. The customer's signature on this form signifies that the project has been successfully completed. The ISC Engineer will be available for questions or initial problem resolution for a period of up to 30 days from the project closure date. After the 30 day period, all support issues should be directed to EMC product support. 12 a Project Management Statement of work This Information is not to be shared with any parry outside City of Aspen without prior written approval from ISC. 4. Bill of Materials Statement of Work Bill of Materials • 13 This information is not to be shared with any parry outside City of Aspen without prior written approval from ISC. 14 a Bill of Materials Statement of work This information is not to be shared with any party outside City of Aspen without prior written approval from ISC. 1 W6 1 ESS9n+ 0510.E Ctrassm. 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MW IS 298.0] 56 ew 6 COdes Ca, 6 Patch CW,Rs s owls MW Y 1W9In S f T9h1 $ 162,616.95 14 a Bill of Materials Statement of work This information is not to be shared with any party outside City of Aspen without prior written approval from ISC. Ex tbl+ rr C Ir ■ Hourly Fee Schedule City of Aspen VM Ware vSphere & Switch Implementation The attached Statement of Work includes implementation, project management, training, documentation and 30 day post implementation support. The rates below represent ISC's Standard Services Rates. Customer Support Center (Remote) - $185 /1-lour Advanced Storage /Virtualization Engineer - $235 /1-lour Advanced Route /Switch Engineer - $235 /Hour. VIG THE CRY of ASPEN MEMORANDUM TO: Mayor and Council FROM: R. Barry Crook, Assistant City Manager VY' THRU: Steve Barwick, City Manager DATE: July 16, 2010 MEETING DATE: July 26, 2010 RE: Capital Improvement Cap Limitations for 45 Callahan Court, Unit 203 Summary: Scott Kirkwood and Lori Dodd (hereinafter Owners) are requesting an additional amount to be added on as a capital improvement (above their 10 %) to expand their unit by 400 square feet. Previous Council Action: In a worksession on June 15, 2010 Council was presented with the following background: SUMMARY FROM APCHA BOARD MEETING OF MAY 5,2010 The owners purchased their two- bedroom, 1,215 square foot, Category 4 unit, for $271,000 on December 10, 2007. The deed restriction allows the owner to spend an additional 10% for capital improvements ($27,100). The estimated cost for this planned expansion is $61,946 -which is $34,846 over the capital improvement cap -and of course that is only an estimate, the actual costs could be higher. The value of the home has appreciated by $12,183 -and is currently valued at $283,183. Today's beginning sales price for a Category 4, two - bedroom unit, is $287,000. If the owners were allowed to add all of the additional $34,846; the current price of the home would be $345,129. This exceeds a Category 4 single - family home price. Although the expandability of some units at Burlingame was built into the plans, the intent was that the homeowner has the option to expand, but the 10% cap would still remain in place. The intent was not to have the expansion increase the price such that the unit no longer satisfies the original category designation or changes the bedroom count. Owners have been allowed to expand their unit size, but were never intended to recoup any money above the 10% cap on the improvements. APCHA has allowed others to expand, but only within the 10% cap or what was specified in their deed restriction. The units are planned to house employees and their families for generations beyond the original purchasers, and maintaining affordability over time is one of the prime reasons the program exists. A price increase of this magnitude takes this unit out of category four and such a category change would have to be approved by both the Housing Board and the City Council. RECOMMENDATION FROM APCHA STAFF Staff believes this price increase is excessive and violates one of the foundational rationales (maintaining affordability) of the program; therefore, staff is recommending that if the Board approves the expansion that it disallow recouping any amount greater than the 10% that is allowed in the deed restriction and that the owners execute documents memorializing the same. MINUTES FROM APCHA BOARD MEETING ACTION ITEM• • Request to Add on Improvements Above 10% as stated in Deed Restriction at 45 Callahan Court #203: Lori Dodd and Scott Kirkwood, owners of 45 Callahan Court, #203, were present. Dodd distributed additional pictures of where the space is that they would like to expand. Christensen stated that Dodd and Kirkwood would like to complete an area to add another bedroom. The estimated cost is over $61,000. The permitted capital improvements are $27,100; therefore, the estimated overage of the expansion is $36,846. Staff is recommending denial of the ability for Dodd and Kirkwood to add anything over the allowed 10% cap to their sales price. Dodd stated three things about this request: 1) this unit is very unique in that it does have a great deal of unlivable space -400 square feet; 2) they have cut as many corners as possible and will do as much as possible to keep the costs down -the current maximum cost is about $155 per square foot; and 3) they are concerned that if they are forced to sell the house earlier than when they would want to, that they could not recoup their costs. Goshorn stated that when Burlingame was being developed, the COWOP group suggested units that could be expandable internally. They thought that this was a good idea. The problem was what costs should be allowed. Dodd stated that there are some units specified as expandable units at Burlingame; this is not one of them. McCabe stated that if the costs take it outside the category, the Board cannot make this decision. This would be a decision of City Council. McCabe stated that staff does not have an issue with them expanding the unit, but that the amount allowed should remain at the 10% cap. Christensen stated that if all of these costs are realized, the unit would cost more than a Category 4 single - family home. Christensen stated the current maximum sales price as stated in the Guidelines for a Category 5, two - bedroom unit is $395,000. Erickson stated that this is a strange unit, but the owners could still use this additional space for storage without spending so much money. The owner is the one that makes that decision. Smiddy stated that you take what you can get. Dodd stated that they were under the impression that they could finish this space. Gudim stated that they can. Goshorn stated that they could go to City Council to ask for clarification on the expansion of this unit. Erickson made a motion to approve staffs recommendation in that the owners can recoup up to the 10% maximum as stated in their deed restriction only; Gudim seconded the motion. Smiddy, Goshom, Gudim and Erickson voted yes. Motion Passed DISCUSSION Mr. Kirkwood and Ms. Dodd appeared before the City Council during Citizen Communications to seek a change in the category /unit designation in order to gain further relief from the application of the capital improvement cap decision received from the Housing Board. They were directed to work with the City Manager's Office. (see their April 6` letter to the Housing Board, Attachment E) I have met with Housing Office staff and discussed the situation with Ms. Dodd and have developed a variety of alternative ways of thinking about their issue. The Housing Office is rightly concerned about the implications to future owners of this unit regarding its affordability if the improvements are granted and they are fully recovered in a subsequent sale. They also note that while some of the Burlingame units were designated for future potential expansion, this unit was not so designated. This seems to me to have been an oversight as the unit is clearly designed to accommodate the expansion such as that contemplated by Ms. Dodd and Mr. Kirkwood. Ms. Dodd and Mr. Kirkwood's interest is in recovering as much, if not all, of their investment in expanding their unit. (See their letter attached) Their current estimates are: Total estimated improvement costs of $74,546: • general contractor's bid of $61,946 • architectural fees estimated at $,2000 • permits estimated $2,000 • materials purchases $3,600 • personal labor $5,000 (not recoverable under our rules) Below is the policy on capital improvements from the Housing Guidelines: SECTION 10 CAPITAL IMPROVEMENT POLICY AND MINIMUM STANDARDS TO RECEIVE FULL VALUE AT TIME OF RESALE Capital improvements and upkeep on deed - restricted units are necessary to enhance the longevity of the affordable housing unit. A maximum sales price will be affected, either higher or lower, relating to the condition of the unit and if the unit meets the minimum standard criteria. Any owner wishing to utilize the new capital improvement policy will be required to enter into the deed restriction that is currently being used at the time of the request. Units Built After January I, 2004 and Re -Sale Units: An owner will be required to maintain a minimum standard for the unit purchased. See Table I, Minimum Standards for Seller to Receive Full Value. Prior to any sale of a unit, the Housing Office Staff will determine a maximum sales price. The Sales Manager shall conduct an inspection and a list provided to the Seller as to the items that will need to be done PRIOR to closing to get full value. The Buyer also has the right to pay for a formal inspection of the unit during the inspection period stated in the Sales Contract. If said inspection reflects items not met on the Minimum Standards for Seller to Receive Full Value table, the Seller shall be required to remedy those items. If the unit meets the standard criteria, the Property or Unit shall be sold for an amount ( "Maximum Resale Price ") in excess of the lesser of the purchase price: • Plus an increase of three percent (3 %) of such price per year from the date of purchase to the date of Owner's notice of intent to sell (prorated at the rate of .25 percent for each whole month for any part of a year); OR • An amount based upon the Consumer Price Index (All Items, U.S. City Average, Urban Wage Earners and Clerical Workers (Revised), published by the U.S. Department of Labor, Bureau of Labor Statistics) calculated as follows: the Owner's purchase price divided by the Consumer Price Index published at the time of Owner's purchase stated on the Settlement Statement, multiplied by the Consumer Price Index current at the date of intent to sell; • Plus any approved capital improvements. Homeowners Requesting the Ability to Use this Capital Improvement Policy: If an owner requests to utilize the new capital improvement policy, such owner shall be required to enter into a new, updated deed restriction. Capital improvements can be added to the maximum resale price. A 10% capital improvement maximum will be established for each new owner. All capital improvements will be depreciated. Certain capital improvements will not be counted as the 10 %. Each capital improvement will depreciate according to the depreciation schedule stated in an approved handbook. The current source is the Marshall Swift Residential Handbook. Any capital improvements associated with health and safety, energy efficiency, water conservation, and green building products will be exempt from the 10% capital improvement cap; however, such capital improvements shall be depreciated according to the depreciation schedule stated in an approved handbook. Any improvement to bring the unit up to the Aspen Affordable Housing Building Guidelines will also be allowed as part of the 10% cap. An owner should check with the Housing Office prior to starting the improvement to verify that the cost can be recouped. It will be up to the homeowner to maintain the unit in good condition. This would include, but not be limited to, the condition of the roof, boiler and water heater, and appliances. Educational programs shall be scheduled for existing homeowners' associations and newly developed homeowners' associations as to what their responsibilities are in maintaining the project in good condition Permitted Capital Improvements 1. The term "Permitted Capital Improvement" as used in the Agreement shall only include the following: a. Improvements or fixtures erected, installed or attached as permanent, functional, non- decorative improvements to real property, excluding repair, replacement and/or maintenance improvements; b. Improvements for energy and water conservation; c. Improvements for the benefit of seniors and /or handicapped persons; d. Improvements for health and safety protection devices (including radon); e. Improvements to add and/or finish permanent/fixed storage space; f. Improvements to finish unfinished space; g. Landscaping; h. The cost of adding decks and balconies, and any extension thereto; and /or i. Improvements associated with health and safety, energy efficiency, water conservation, and green building products. 2. Permitted Capital Improvements as used in this Agreement shall NOT include the following: a. Jacuzzis, saunas, steam showers and other similar items; b. Upgrades or addition of decorative items, including lights, window coverings and other similar items. c. Upgrades of appliances, plumbing and mechanical fixtures, carpets and other similar items included as part of the original construction of a unit and/or improvements required to repair and maintain existing fixtures, appliances, plumbing and mechanical fixtures, painting, and other similar items, unless replacement is energy efficient or for safety and health reasons. 3. All Permitted Capital Improvement items and costs shall be approved by the APCHA staff prior to being added to the Maximum Resale Price as defined herein. In order to get credit for an improvement where a building permit is required, the improvement will not be counted unless a Letter of Completion was obtained by the Building Department. My Recommendation: I see certain things as underlying facts that have guided my recommendations: • The unit was designed to be expanded and the expansion will result in a 2- bedroom I- bath unit becoming a 3- bedroom 2 -bath unit. • The owners knew of the capital improvement limitations when they bought the unit and some kind of adherence to that rule should be enforced. • We have and will have 3- bedroom units at Burlingame — it is designed as a family complex and 3- bedroom units are a plurality of the development plans now and in the future. So adding a 3- bedroom unit to the unit mix there and losing one 2- bedroom unit is not a dramatic shift in the inventory. • On the other hand, changing the category from a Category 4 unit to a Category 5 unit does not seem to be warranted nor does it seem necessary to provide some relief to the current owners. • Keeping the category at its current designation addresses the affordability issue by: (1) limiting the increase to the 10% contemplated in the rules but (2) increasing the bedroom count to what it will actually be. In other words, if we limit the price increase to that associated with the bedroom count increase and the 10% cap we act within the boundaries of our current rules. I am recommending that: 1. The 10% recovery rule be adhered to and applied to the purchase price of your unit — as is the direction in the guidelines. 2. The unit designation is changed to a 3- bedroom unit (because that is what the unit will become) 3. The category designation remain at Category 4 (this is an important result from our perspective) 4. Thus the change in selling price would be calculated to be an additional $56,100 to a NEW current selling price of $343,100 • + $27,100 (the 10% from the purchase price of $271,000) • + $29,000 (the increase from going from a 2- bedroom unit to a 3- bedroom unit at $316,000 - $287,000 ... the current selling price for a 3- bedroom unit minus the current selling price of a 2- bedroom unit) We feel this continues with the policy direction that the guidelines provides for and recognizes the change in unit size. There are of course, several other options for the Council to consider including: 1. Keeping the unit at a category 4, 2- bedroom unit: + $27,100 (the 10% rule) for a total NEW price of $298,200 2. Changing the unit to a category 5 2- bedroom @ $395,000: + $108,000 from the current selling price of $287,000 3. Changing the unit to a 3- bedroom unit category 4 @ $316,000 + $29,000 from the current selling price of $287,000 4. Changing the unit to a 3- bedroom unit category 4 @ $316,000, calculating the 10% from that number: _ + $31,600, then adding the bedroom count increase of + $29,000 for a total increase of $60,600 from the current selling price of $287,000 for a total NEW selling price of $347,600 5. Permit them to recover their costs and add that to the current purchase price: _ + $69,546 (current estimate of $74,546 less the $5,000 in personal labor) added to the current selling price of $287,000 for a total NEW price of $356,546. RECOMMENDATION: 1. The 10% recovery rule be adhered to and applied to the purchase price of your unit — as is the direction in the guidelines. 2. The unit designation is changed to a 3- bedroom unit (because that is what the unit will become) 3. The category designation remain at Category 4 (this is an important result from our perspective) 4. Thus the change in selling price would be calculated to be an additional $56,100 to a NEW current selling price of $343,100 • + $27,100 (the 10% from the purchase price of $271,000) • + $29,000 (the increase from going from a 2- bedroom unit to a 3- bedroom unit at $316,000 - $287,000 ... the current selling price for a 3- bedroom unit minus the current selling price of a 2- bedroom unit) COUNCIL DIRECTION: City Council asked to present this proposal to the Aspen Pitkin County Housing Authority Board and the Pitkin County Board of County Commissioners for their recommendation. APCHA BOARD CONSIDERATION: At their meeting on June 16, 2010, the APCHA Board was presented with the recommendation above and they approved it by a vote of 4 -1. They indicated that the work should be completed before the deed restriction is changed. (see Attachment B) Revised Deed Restriction: At the direction of the APCHA Attorney, a revised deed restriction has been drafted for 45 Callahan Court, Unit 203 and will be executed if Council agrees. (see Attachment C) In addition, a Memorandum of Acceptance for the Deed Restriction agreement for the occupancy and resale of 45 Callahan Court, Unit 203 to supercede the old Memorandum of Acceptance will also be executed if Council agrees. (see Attachment D) RESOLUTION OF CITY COUNCIL: A Council Resolution is attached for your consideration (see Attachment A) that would direct the change in unit type from a 2- bedroom unit to a 3- bedroom unit and accept the recommendation for sales price changes. Recommended Action: Approve the request and allow the APCHA Board to designate a change in the Deed Restriction upon the work being completed and the staff approving adherence to the conditions: • Work is approved in accordance with the Housing Guidelines • Receipts are provided in accordance with Housing Guidelines • Work is completed before APCHA grants the change in deed restriction from 2- bedroom unit to a 3- bedroom unit. Alternatives: If Council does not want to approve the staff recommendation, you could deny the owners request and the unit would remain a designated 2- bedroom unit, with the sales price only being allowed to rise in accordance with the 10% cap. Any of the other alternative ideas discussed earlier could also be chosen by Council. Proposed Motion: "I move to approve Resolution r J� to change the designation of 45 Callahan Court, Unit 203 from a 2- bedroom unit to a 3- bedroom unit, keep it at a Category 4 unit and subject the bedroom count change to the following conditions: • Work is approved in accordance with the Housing Guidelines • Receipts are provided in accordance with Housing Guidelines • Work is completed before APCHA grants the change in deed restriction from 2- bedroom unit to a 3- bedroom unit." City Manager Comments: ATTACHMENTS: Attachment A: City Council Resolution Attachment B: Aspen/Pitkin County Housing Authority Minutes June 16, 2010 Attachment C: New Deed Restriction for 45 Callahan Court, Unit 203 Attachment D: New Memorandum of Acceptance for 45 Callahan Court, Unit 203 Attachment E: Letter to APCHA Board from Owners of 45 Callahan Court, Unit 203 RESOLUTION NO. (Series of 2010) A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, AUTHORIZING THE CHANGE OF UNIT DESIGNATION OF 45 CALLAHAN COURT, UNIT #203, BURLINGAME RANCH CONDOMINIUMS FROM TWO BEDROOM TO THREE BEDROOM. WHEREAS, Scott Kirkwood and Lori Dodd (hereinafter "Owners ") are the owners of a condominium in the Burlingame Ranch Condominiums known as 45 Callahan Court, Unit #203 (hereinafter "Unit"). The Owners purchased the unit on December 10, 2007 as a two- bedroom, Category 4 unit; and WHEREAS, the owners have proposed to expand the Unit by approximately 400 square feet by converting space within the Unit to a third bedroom. The work proposed would exceed the capital improvement maximum that is allowed on affordable housing projects. A change in the designation of the Unit from a two bedroom unit to a three bedroom unit would allow the Owners to recoup some or all of the expenses of the work to expand the Unit, even if the capital improvement maximum is maintained; and WHEREAS, Burlingame Ranch did contemplate the expansion of units and a change from a two bedroom unit to a three bedroom unit would not be a dramatic shift in the inventory; and WHEREAS, at its meeting on June 16, 2010, the Aspen/Pitkin Housing Authority Board of Directors approved by a vote of 4 -1, a resolution authorizing the change of the deed restriction reflecting a change of designation of the bedroom count from two to three for the purposes of the sale price of the unit under certain specific conditions; and WHEREAS, the City Council desires to approve the designation of the Unit following the work proposed from a two bedroom Category 4 Unit to a three bedroom Category 4 Unit. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 The Aspen City Council hereby approves the request of the Owners to change the Unit designation of 45 Callahan Court, Unit #203, Burlingame Ranch Condominiums from a two bedroom Category 4 Unit to a three bedroom Category 4 Unit on the following terms and conditions: 1. All work to expand the Unit and add a bedroom is approved in accordance the Housing Guidelines; 2. Receipts of expenses incurred are provided in accordance with Housing Guidelines 3. Work is completed before APCHA grants the change in the deed restriction on the property. Upon the completion of the above - stated conditions, APCHA may execute and record a new deed restriction on the property and the subsequent sale of the Unit may be based upon the Unit as a three bedroom Category 4 unit. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the day of 2010. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Kathryn S. Koch, City Clerk 3 Attachment B Aspen/Pitkin County Housing Authority Minutes June 16, 2010 that goal. Crook stated that he agrees that it should not change categories, but that if the unit is categorized as a three- bedroom, the owners can gain more of their expenses back when they sell. Crook is recommending that the owners be allowed to recoup up to an additional $29,000 over the $27,100 current 10% cap. This would take the price to $343,100. Erickson stated that he appreciates all the work that Crook put into the different alternatives and that he would be willing to accept the recommendation. Goshom stated that she also likes the recommendation in that it stays as a Category 4; however, Goshom stated that the HOA dues should reflect that the unit would be a three - bedroom versus a two - bedroom. McCabe stated that he had requested Tom Smith, Legal Council, to review the deed restriction to see if the BOCC had to approve this request. Smith's legal opinion was that both the City Council and the Housing Board had to approve this change. Erickson made a motion to approve the following recommendation: • The 10% recovery rule be adhered to and applied to the purchase price of the unit as in the direction of the Guidelines. • The unit designation will be changed to a three - bedroom unit because of the addition of a bedroom. • The category designation will remain at a Category 4. • Up to a total of $56,100 can be recouped for the expansion of this unit ($27,100 from the original,10% cap and $29,000 from the increase from a two- to a three - bedroom unit). The additional capital improvements, however, will be the maximum of $56,100 or the owners' actual costs, whichever is less. At no time will the owner receive any credit for sweat equity. • Once a Certificate of Completion is received from the Building Department, the owners unit will be classified as a three - bedroom and the owners will be required to pay homeowner association dues based on a three - bedroom unit. Smiddy seconded the motion. Gudim, Goshorn, Erickson, and Smiddy voted yes. Sabel voted no. Motion passed. Crook will pass this on to the City Council. Crook invited the Board members to the June 28 City Council meeting in case the City Council had any questions of the Board. • Clarifying the Role of the Housing Frontier Group Crook stated that he has provided a letter reflecting the conversation that he and Steve Barwick, City Manager, had with the Group and the clarification of how the Housing Frontier Group and the Housing Board should be interacting. • Updated on Burlingame Phase II : Chris Everson provided an update on the progress of Burlingame Phase II. Erickson stated that he would like to see more one - bedroom units incorporated into Phase II. Crook stated that Burlingame was always designed as a family- oriented project. There are other projects in the works that the City will be Aspen/Min County Housing Authority Wnutea June 16, 2010 Page 2 P4 Attachment C New Deed Restriction for 45 Callahan Court, Unit 203 DEED RESTRICTIONAGREEMENT FOR THE OCCUPANCY AND RESALE OF 0045 CALLAHAN COURT, UNIT 203 BURLINGAME RANCH CONDOMINIUMS THIS DEED RESTRICTION AGREEMENT FOR THE OCCUPANCY AND RESALE OF 0045 CALLAHAN COURT, UNIT 203, BURLINGAME RANCH CONDOMINIUMS(the "Agreement ") is made and entered into this _day of 2010, by Scott Kirkwood and Lori Dodd (hereinafter referred to as "Owner "), for the benefit of the parties and enforceable by the ASPEN/PITKIN COUNTY HOUSING AUTHORITY (hereinafter referred to as "APCHA "), a duly constituted multi jurisdictional Housing Authority established pursuant to the FOUR TH"ENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT by and between the City of Aspen, Colorado (the "City") and Pitkin County, Colorado (the "County"), dated December 20, 2007 and recorded at Reception No. 545387 on January 2, 2008, of the records of the Pitkin County Clerk and Recorder's Office. WITNESSETH'. WHERAS, the Owner purchased the property on December 10, 2007; WHEREAS, Owner owns the real property described in Exhibit "A" attached hereto and incorporated herein. For purposes of this Agreement, the real property and all dwellings, appurtenances, improvements and fixtures associat- ed therewith shall hereinafter be referred to as the "Property"; and WHEREAS, Owner agrees to restrict the acquisition or transfer of the Property to "Qualified Buyers," as that term is defined in this Agreement, who fall within the Category 4 income range established and adopted by the APCHA from time to time in its Employee Housing Guidelines. In addition, the Owner agrees that this Agreement shall constitute a resale agreement setting forth the maximum resale price for which the Property may be sold ( "Maximum Resale Price ") and the terms and provisions controlling the resale of the Property. Finally, by this Agreement, Declarant restricts the Property against use and occupancy inconsistent with this Agreement. WHEREAS, "Qualified Buyers" are natural persons meeting the income, residency and all other qualifications set forth in the Aspen/Pitkin County Housing Authority Employee Housing Guidelines (hereinafter the "Employee Housing Guidelines "), or its substitute, as adopted by the APCHA, or its successor, and in effect at the time of the closing of the sale to the Qualified Buyer, and who must represent and agree pursuant to this Agreement to occupy the Property as their sole place of residence, not to engage in any business activity on the Property, other than that permitted in that zone district or by applicable ordinance, not to sell or otherwise transfer the Property for use in a trade or business; and to continue meeting the employment, residency and other requirements as stated in this Agreement, and as stated in the Guidelines as they are amended from time to time. WHEREAS, an "Owner" is a person or persons who is/are a Qualified Buyer who acquires an ownership interest in the Property or Unit in compliance with the terms and provisions of this Agreement, or any other person or legal entity owning an interest in the Property or Unit; it being understood that such person, persons or entity shall be deemed an "Owner" hereunder only during the period of his, her, their or its ownership interest in the Property and shall be obligated hereunder for the full and complete performance and observance of all covenants, conditions and restrictions contained herein during such period. WHEREAS, this document supercedes any previous deed restriction agreement for occupancy and resale associated with this unit. WHEREAS, a "Unit" is the unit located at 0045 Callahan Court, Unit 203, Aspen, Colorado 81611. NOW, THEREFORE, for value received, the receipt and sufficiency of which are hereby acknowledged, Owner hereby represents, covenants and agrees as follows: C:\DOcuments and Settings\banyc\Local Settings \Temporary Internet Files\ Content.Outlook \MM6X7MR4 \df_BG45CC203.doe USE AND OCCUPANCY 1. The use and occupancy of the Property shall henceforth be limited exclusively to housing for natural persons who meet the definition of Qualified Buyers and their families, and the other requirements of this Agreement and the Aspen/Pitkin County Housing Authority Employee Housing Guidelines referred to above. REQUIREMENTS 2. An Owner, in connection with the purchase of this Property or Unit, must: a) occupy any Unit within this Property as his or her sole place of residence during the time that such unit is owned; b) not own, directly or indirectly through a legal entity, any interest alone or in conjunction with others, in any developed property or dwelling units in accordance with the limitations established by the Guidelines as amended from time to time; c) not engage in any business activity on or in such Unit, other than permitted in that zone district or by applicable ordinance; d) sell or otherwise transfer such Unit only in accordance with this Agreement and the Employee Housing Guidelines; e) not sell or otherwise transfer such Unit for use in a trade or business; f) not permit any use or occupancy of such Unit except in compliance with this Agreement; g) continue to meet the residence and employment requirements of a Qualified Buyer established by the APCHA Guidelines and as they are amended from time to time; and h) continue to meet the other requirements of the applicable APCHA Guidelines as they are amended from time to time, and this Agreement. Recertification of employment, residency and the ownership of other property shall be required as stipulated in the APCHA Guidelines. DEFAULT ON LOAN 3. a. It shall be a breach of this Agreement for Owner to default in payments or other obligations due or to be performed under a promissory note secured by a first deed of trust encumbering the Property or a Unit or to breach any of Owner's duties or obligations under said deed of trust. It shall also be a breach of this Agreement for Owner to default in the payment of real property taxes or obligations to the Homeowners' Association for general or special assessments. Owner must notify the APCHA, in writing, of any such default, including notification received from a lender, or its assigns, of past due payments or default in payment or other obligations due or to be performed under a promissory note secured by a lust deed of trust, as described herein, or of any breach of any of Owner's duties or obligations under said deed of trust, within five calendar days of Owner's notification from lender, or its assigns, or any other creditor specified herein, of said default or past due payments or breach. b. Upon notification of a default as provided above, the APCHA may offer loan counseling or distressed loan services to the Owner, if any of these services are available, and is entitled to require the Owner to sell the Property or a Unit to avoid the commencement of any foreclosure proceeding against the Property or a Unit. C. Upon receipt of notice as provided in paragraphs 3a and b, the APCHA shall have the right, in its sole discretion, to cure the default or any portion thereof In such event, the Owner shall be personally liable to APCHA for past due payments made by the APCHA together with interest thereon at the rate specified in the promissory note secured by the first deed of trust, plus one percent (1 0 /o), and all actual expenses of the APCHA incurred in curing the default. The Owner shall be required by APCHA to execute a promissory note secured by deed of trust encumbering the Property in favor of the APC14A for the amounts expended by the APCHA as specified herein, including future advances made for such purposes. The Owner may cure the default and satisfy it's obligation to the APCHA under this subparagraph at any time prior to execution of a contract for sale, upon such reasonable terms as specified by the APCHA. Otherwise, Owner's indebtedness to the APCHA shall be satisfied from the Owner's proceeds at closing. Deed Restriction /0045 Callahan Court 0203 Page 2 d. In addition, upon receipt of notice as provided in Paragraphs 3a and 3b, the APCHA shall have the option, exercisable in the APCHA's sole discretion, to purchase the Owner's Lot and Improvements for ninety -five percent (95 %) of the Maximum Resale Price. If the APCHA desires to exercise said option, it shall give written notice thereof to the Owner within forty-five (45) days following the APCHA's receipt of the notice as provided in Paragraphs 3a and 3b. In the event the APCHA timely exercises said option, the closing of the purchase of the Lot an d Improvements shall occur within forty-five (45) days following the date of the APCHA's notice to the Owner of the exercise of said option. DEFAULT ON CONDOMINIUM ASSESSMENTS 4. It shall be a violation of th Agreement for the Owner to default in the payment of general or special assessments to the Homeowner's Association, and such person shall be subject to enforcement as provided herein. In addition, upon sale of a unit as to which the payment of such obligations is in default, the assessments shall be paid at closing. ENFORCEMENT 5. In the event that the APCHA determines that sale of the Property or a Unit is necessary as a result of breach of this Agreement, Owner shall immediately execute a standard Listing Contract on forts approved by the Colorado Real Estate Commission with the APCHA, providing for a 30-day listing period. At that time, the Owner shall deposit with the APCHA an amount equal to one percent (1 %) of the estimated value of the Unit. The appreciation of the unit will have stopped from the date that the violation occurred. Said date shall not necessarily be the same time the Notice of Violation was sent to the Owner. If a sales contract has not been executed within the initial 30-day period, Owner shall extend the listing period for an additional 180 days, provided such extension does not conflict with the statutory rights of any secured creditors. The APCHA shall promptly advertise the Property for sale by competitive bid to Qualified Buyers. At the time of closing, the Owner shall pay to the APCHA an additional fee as stated in the AspemP #kin County Employee Housing Guidelines. In the event of a listing of the Property pursuant to this Paragraph 5, the APCHA is entitled to require the Owner to accept the highest of any qualified bids that is equal to the lesser of (i) an amount that at least satisfies the Owner's financial or other obligations due under the promissory note secured by a fast deed of trust and any deed of trust in favor of the APCHA, as described herein, or (ii) the Maximum Resale Price (as hereinafter defined), and to sell the Property to such qualified bidder. The listing and sale of the Property or Unit shall be subject to such listing, sales and other fees and expenses as may be imposed by the APCHA from time to time as set forth in the Employee Housing Guidelines. AGREEMENT RUNS WITH THE LAND 6. This Agreement shall constitute covenants running with the Property, as a burden thereon, for the benefit of, and shall be specifically enforceable by the APCHA, the City Council for the City (the "City Council "), the Board of County Commissioners for the County (also referred to herein as the "County "), and their respective successors and assigns, as applicable, by any appropriate legal action including but not limited to specific performance, injunction, reversion, or eviction of non - complying owners and/or occupants. VOLUNTARY SALE In the event that an Owner desires to voluntarily sell the Property or Unit, the Owner shall execute a standard Listing Contract on forms approved by the Colorado Real Estate Commission with the APCHA providing for a 180 -day listing period, or such other time period as required by the APCHA Employee Housing Guidelines in effect at time of listing. The APCHA shall promptly advertise the Property or Unit for sale by competitive bid to Qualified Buyers. The listing and sale of the Property or Unit shall be subject to such listing, sales and other Page 3 Deed Restriction /OOHS Callahan Court #203 fees and expenses as may be imposed by the APCHA from time to time as set forth in the Employee Housing Guidelines. APCHA'S RIGHT TO ACQUISITION 8. Notwithstanding any provision herein to the contrary, the APCHA shall have the right, in its sole discretion, (i) to acquire any Property or Unit for the purpose of resale thereof to a Qualified Buyer; (ii) following its acquisition of any Property or Unit, to repair, replace, redevelop, remove and maintain such Property or Unit prior to resale to a Qualified Buyer; and/or (iii) amend this Deed Restriction Agreement following the acquisition. MAXIMUM RESALE PRICE 9. In no event shall the Property or a Unit be sold for an amount ( "Maximum Resale Price ") in excess of the lesser of a. $271,000 plus an increase of three percent (3 %) of such price per year from the date of purchase, December 10, 2007, to the date of Owner's notice of intent to sell (prorated at the rate of .25 percent for each whole month for any part of a year); or b. an amount (based upon the Consumer Price Index, All Items, U.S. City Average, Urban Wage Earners and Clerical Workers (Revised), published by the U.S. Department of Labor, Bureau of Labor Statistics) calculated as follows: the Owner's purchase price divided by the Consumer Price Index published at the time of Owner's purchase stated on the Settlement Statement, multiplied by the Consumer Price Index current at the date of intent to sell. In no event shall the multiplier be less than one (1). For purposes of this Agreement, "date of intent to sell" shall be the date of execution of a listing contract when required by this agreement, or if a listing contract is not otherwise necessary, the date shall be determined to be the date upon which a requirement for the Owner to sell is first applicable. NOTHING HEREIN SHALL BE CONSTRUED TO CONSTITUTE A REPRESENTATION OR GUARANTEE BY THE APCHA OR THE CITY THAT ON RESALE THE OWNER SHALL OBTAIN THE MAXIMUM RESALE PRICE. 10. a. Subject to the limitations of this Section, for the purpose of determining the Maximum Resale Price in accordance with this Section, the Owner may add to the amount specified in Paragraph 9 above, the cost of Permitted Capital Improvements, as set forth in Exhibit "B" attached hereto or otherwise allowed by the Employee Housing Guidelines and as they are amended from time to time, in a total amount not to exceed $27,100, which is ten percent (10 %) of the listed purchase price set forth in paragraph 9a above, and not to exceed an additional $29,000, for an addition of one bedroom and one bathroom, not to exceed a total of $56,100. Except as may be permitted based upon depreciation as provided herein, in no event shall permitted capital improvements exceed $56,100. In calculating such amount, only those Permitted Capital Improvements identified in Exhibit "B" hereto or otherwise allowed by the Employee Housing Guidelines from time to time shall qualify for inclusion. All such Permitted Capital Improvements installed or con- structed over the life of the unit shall qualify, and will be depreciated based on the Depreciation Schedule used by APCHA at the time of listing. b. Permitted Capital Improvements shall not include any changes or additions to the Property made by the Owner during construction or thereafter, except in accordance with Paragraph 9a above. Permitted Capital Improvements shall not be included in the APCHA's listed purchase price, even if made or installed during original construction. Deed Restriction /0045 Callahan Court #203 Page 4 C. in order to qualify as Permitted Capital Improvements, the Owner must furnish to the APCHA the following information with respect to the improvements that the Owner seeks to include in the calculation of Maximum Resale Price: (1) Original or duplicate receipts to verify the actual costs expended by the Owner for the Permitted Capital Improvements; (2) Owner's affidavit verifying that the receipts are valid and correct receipts tendered at the time of purchase; and (3) True and correct copies of any building permit or certificate of occupancy required to be issued by the Aspen/Pitkin County Building Department with respect to the Permitted Capital Improvements. (4) In calculating the costs under Paragraphs 10 a- c(1 -3), only the Owner's actual out -of- pocket approved costs and expenses shall be eligible for inclusion. Such amount shall not include an amount attributable to Owner's "sweat equity" or to any appreciation in the value of the improvements. All capital improvements will be depreciated. Certain capital improvements will not be counted towards the 10% cap. Each capital improvement will depreciate according to the depreciation schedule stated in an approved handbook. The current source is the Marshall Swift Residential Handbook. Any capital improvements associated with health and safety, energy efficiency, water conservation, and green building products will be exempt from the 10% capital improvement cap; however, such capital improvements shall be depreciated according to the depreciation schedule stated in an approved handbook. Any improvement to bring the unit up to the Aspen Affordable Housing Building Guidelines will also be allowed as part of the 10% cap. d. For the purpose of determining the Maximum Resale Price in accordance with this Section, the Owner may also add to the amounts specified in Paragraphs 9 and 10a, the cost of any permanent improvements constructed or installed as a result of any requirement imposed by any governmental agency, which shall not include any requirement imposed for the addition of the one - bedroom and one - bathroom, provided that written certification is provided to the APCHA of both the applicable requirement and the information required by Paragraph 10c, (1)—(3). e. In order to obtain maximum resale price, Owner must ensure that the unit meets APCHA's generally applicable minimum standards for a seller of a deed - restricted unit to receive full value as determined by APCHA in its discretion. This shall include requirements to clean the home, ensure that all fixtures are in working condition, and to repair damage to the unit beyond normal wear and tear and as stated in the Minimum Standards for Seller to Receive Full Value at Resale, Exhibit "C ". If the Seller does not meet this requirement, APCHA may require that Seller escrow at closing a reasonable amount to achieve compliance by APCHA, or reduce the maximum resale price accordingly. GRIEVANCES 11. All disputes between the Owner and the administrative staff of the APCHA shall be heard in accordance with the grievance procedures set forth in the Employee Housing Guidelines. CLOSING COSTS 12. Owner shall not permit any prospective buyer to assume any or all of the Owner's customary closing costs (including, but not limited to, title insurance, sales fee, pro ration of taxes, homeowners dues, etc., as are customary in Aspen and Pitkin County) nor accept any other consideration which would cause an increase in the purchase price above the bid price so as to induce the Owner to sell to such prospective buyer. Page 5 Deed Restriction /0045 Callahan Court %203 MULTH'LE QUALIFIED BIDS 13. In the event that one qualified bid is received equal to the Maximum Resale Price herein established, the Property shall be sold to such bidder at the Maximum Resale Price; and in the event Owner receives two or more such bids equal to the Maximum Resale Price, the Qualified Buyer shall be selected according to the priority for Sale Units set forth in the Employee Housing Guidelines; and, in the event that more than one such qualified bidder is of equal priority pursuant to the Employee Housing Guidelines, the Qualified Buyer shall be selected by lottery among the qualified bidders of the highest priority, whereupon the Property or Unit shall be sold to the winner of such lottery at the Maximum Resale Price. If the terms of the proposed purchase contract, other than price, as initially presented to the Owner, are unacceptable to the Owner, there shall be a mandatory negotiation period of three (3) business days to allow the Owner and potential buyer to reach an agreement regarding said terms, including but not limited to, the closing date and financing contingencies. If, after the negotiation period is over, the Owner and buyer have not reached an agreement, the next bidder's offer will then be presented to the Owner for consideration and a three (3) business day negotiating period will begin again. The Owner may reject any and all bids; however, the Owner is subject to the provisions in the Employee Housing Guidelines pertaining to the listing fee. Bids in excess of the Maximum Resale Price shall be rejected. If all bids are below the Maximum Resale Price, the Owner may accept the highest qualified bid. If all bids are below the Maximum Resale Price and two or more bids are for the same price, the Qualified Buyer shall be selected by lottery from among the highest qualified bidders. NON - QUALIFIED TRANSFEREES 14. In the event that title to the Property or a Unit vests by descent in, or is otherwise acquired by, any individual and/or entity who is not a Qualified Buyer as that term is defined herein (hereinafter "Non- Qualified Transferee(s)"), the Property or Unit shall immediately be listed for sale as provided in Paragraph 7 above (including the payment of the specified fee to the APCHA), and the highest bid by a Qualified Buyer, for not less than ninety-five percent (95 %) of the Maximum Resale Price or the appraised market value, whichever is less, shall be accepted; if all bids are below ninety-five percent (95 %) of the Maximum Resale Price or the appraised market value, the Property or Unit shall continue to be listed for sale until a bid in accordance with this section is made, which bid must be accepted. The cost of the appraisal shall be paid by the Non - Qualified Transferee(s). a. Non - Qualified Transferee(s) shall join in any sale, conveyance or transfer of the Property or Unit to a Qualified Buyer and shall execute any and all documents necessary to do so; and b. Non - Qualified Transferee(s) agree not to: (1) occupy the Property or Unit; (2) rent all or any part of the Property or Unit, except in strict compliance with Paragraph 15 hereof; (3) engage in any other business activity on or in the Property or Unit; (4) sell or otherwise transfer the Property or Unit except in accordance with this Agreement and the Employee Housing Guidelines; or (5) sell or otherwise transfer the Property or Unit for use in a trade or business. C. The APCHA, the City, the County, or their respective successors, as applicable, shall have the right and option to purchase the Property or Unit, exercisable within a period of fifteen (15) calendar days after receipt of any sales offer submitted to the APCHA by a Non - Qualified Transferee(s), and in the event of exercising their right and option, shall purchase the Property or Unit from the Non - Qualified Transferee(s) for a price of ninety-five percent (95 %) of the Maximum Resale Price, or the appraised market value, whichever is less. The offer to purchase shall be made by the Non - Qualified Transferee within fifteen (15) days of acquisition of the Property or Unit. d. Where the provisions of this Paragraph 14 apply, the APCHA may require the Owner to rent the Property or Unit in accordance with the provisions of Paragraph 18, below. Deed Restriction /0095 Callahan Court #203 Page 6 OWNER RESIDENCE, EMPLOYMENT AND CONTINUING COMPLIANCE 15. The Property and all Units shall be and is/are to be utilized only as the sole and exclusive place of residence of an Owner. 16. In the event an Owner changes place of residence or ceases to utilize the Property or Unit as his sole and exclusive place of residence, ceases to be a fall -time employee in accordance with the APCHA Guidelines as they are amended from time to time, or otherwise ceases to be in compliance as a Qualified Buyer with the APCHA Guidelines as they are amended from time to time, or this Agreement, the Property or Unit MUST be offered for sale pursuant to the provisions of Paragraph 6 of this Agreement. An Owner shall be deemed to have changed his or her place of residence by becoming a resident elsewhere or accepting employment outside Pitkin County, or residing on the Property or Unit for fewer than nine (9) months per calendar year without the express written approval of the APCHA, or by ceasing to be a full -time employee as required by the Employee Housing Guidelines as amended from time to time. Where the provisions of this Paragraph 16 apply, the APCHA may require the Owner to rent the Property or Unit in accordance with the provisions of Paragraph 18, below pending a sale of the property. 17. If at any time the Owner of the Property or Unit at any time also owns directly or indirectly through a legal entity any interest alone or in conjunction with others in any developed residential property or dwelling unit(s) located in Eagle, Garfield, Gunnison or Pitkin Counties, within the Ownership Exclusion Zone as defined in the Employee Housing Guidelines as they are amended from time to time, the Owner agrees to immediately list said other property or unit for sale and to sell his or her interest in such property at fair market value to like units or properties in the area in which the property or dwelling unit(s) are located. In the event said other property or unit has not been sold by Owner within one hundred eighty (180) days of its listing for any reason, then Owner hereby agrees to immediately list this Property or Unit for sale pursuant to the provisions of Paragraph 6 of this Agreement. Should the Owner not receive a full -priced bid, then said Owner must accept the first reasonable offer for said unit as deemed appropriate by the APCHA. RENTAL 18. Owner may not except with prior written approval of the APCHA, and subject to APCHA's conditions of approval, rent the Property or Unit for any period of time. Prior to occupancy, each tenant must be approved by the Homeowner's Association, if applicable, and the APCHA in accordance with the income, occupancy and all other qualifications established by the APCHA in its Employee Housing Guidelines. The APCHA shall not approve any rental if such rental is being made by Owner to utilize the Property or Unit as an income producing asset, except as provided below, and shall not approve a lease with a rental term in excess of twelve (12) months. A signed copy of the lease must be provided to the APCHA prior to occupancy by each tenant. Any such lease approved by the APCHA shall show the length of the lease and the monthly rent. The monthly rent cannot exceed the Owner's costs, which include the monthly expenses for the cost of principal and interest payments, taxes, property insurance, condominium or homeowners assessments, utilities remaining in Owner's name, plus an additional amount as stated in the Employee Housing Guidelines and as they are amended form time to time, and a reasonable (refundable) security deposit. The requirements of this paragraph shall not preclude the Owner from sharing occupancy of the Property or Unit with non - Owners on a rental basis provided Owner continues to meet the obligations contained in this Agreement, including Paragraph 15. 19. IN NO EVENT SHALL THE OWNER CREATE AN ADDITIONAL DWELLING UNIT, AS DEFINED IN THE PITKIN COUNTY OR CITY OF ASPEN LAND USE CODES, IN OR ON THE PROPERTY. 20. NOTHING HEREIN SHALL BE CONSTRUED TO REQUIRE THE APCHA TO PROTECT OR INDEMNIFY THE OWNER AGAINST ANY LOSSES ATTRIBUTABLE TO THE RENTAL, INCLUDING (NOT BY WAY OF LIMITATION) NON - PAYMENT OF RENT OR DAMAGE TO THE Deed Restriction /0045 Callahan Court #203 Page 7 PREMISES; NOR TO REQUIRE THE APCHA TO OBTAIN A QUALIFIED TENANT FOR THE OWNER IN THE EVENT THAT NONE IS FOUND BY THE OWNER. COMPLIANCE REVIEW AND REMEDIES FOR BREACH 21. All existing and potential Owners shall promptly provide to the APCHA all such information as the APCHA deems reasonably necessary at any time to verify compliance with this Agreement. The APCHA shall maintain the confidentiality of any financial data provided by any existing or potential Owner, except for such disclosures as are necessary with respect to any litigation, enforcement or other legal proceedings. In the event that APCHA has reasonable cause to believe the Owner is violating the provisions of this Agreement, the APCHA, by its authorized representative, may inspect the Property or Unit between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner with no less than 24 hours' written notice. 22. The APCHA, through its employees or agents, in the event a violation or potential violation of this Agreement is discovered, shall send a notice of violation to the Owner describing the nature of the violation and allowing the Owner fifteen (15) days to cure. Said notice shall state that the Owner may request a hearing before the APC14A Board of Directors within fifteen (15) days to dispute the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen (15) day period, the violation shall be considered final and the Owner shall immediately list the Property for sale in accordance with this Agreement. The failure to request a hearing shall constitute the failure to exhaust administrative remedies for the purpose of judicial review. If a hearing is held before the APCHA Board, (i) the decision of the APCHA Board based on the record of such hearing shall be final for the purpose of determining if a violation has occurred, and (ii) the APCHA Board shall have absolute discretion to determine the appropriate action to be taken to either remedy the violation or require the Owner to list the Property for sale in accordance with this Agreement. For the purpose of determining the maximum resale price of the Unit, appreciation shall terminate from the date of the first notice of violation until the violation is cured or until the Unit is sold, whichever is applicable 23. There is hereby reserved to the parties hereto any and all remedies provided by law for breach of this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or all provisions of this Agreement, the prevailing party shall awarded damages and costs, including reasonable attorneys' fees. 24. In the event the Property or Unit is sold and/or conveyed without compliance herewith, such sale and/or conveyance shall be wholly null and void and shall confer no title whatsoever upon the purported buyer. Each and every conveyance of the Property or Unit, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference therein to this Agreement. The Owner shall be liable for all APCHA's costs and reasonable attorneys' fees 'incurred in setting aside any such transaction. 25. In the event that the Owner fails to cure any breach, the APCHA may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring sale of the Property or Unit by Owner as specified in Paragraphs 3, 14, 16, and 17. The costs of such sale, including reasonable attorneys' fees, shall be taxed against the proceeds of the sale with the balance being paid to the Owner. 26. In the event of a breach of any of the terms or conditions contained herein by the Owner, his or her heirs, successors or assigns, the APCHA's initial listed purchase price of the Property or Unit as set forth in Paragraph 9a of this Agreement shall, upon the date of such breach as determined by the APCHA, automatically cease to increase as set out in Paragraph 9 of this Agreement, and shall remain fixed until the date of cure of said breach. Deed Restriction /0045 Callahan Court 02O3 Page B FORECLOSURE 27. a. If any Property or Unit is sold as a foreclosure sale or otherwise acquired by any person or entity in lieu of foreclosure, the APCHA and the Board, as the designee of the APCHA, shall have the option to acquire such Property or Unit within thirty (30) days after (i) the issuance of a public trustee's deed to the purchaser, or (ii) receipt by the APCHA of written notice from such person or entity of the acquisition of such Lot in lieu of foreclosure, as applicable, for an option price not to exceed (a) in the event of a foreclosure, the redemption price on the last day of all statutory redemption periods and any additional reasonable costs incurred by the holder during the option period which are directly related to the foreclosure or (b) in the event of a transfer in lieu of foreclosure, the amount paid, or the amount of debt forgiven, by the transferee plus the reasonable costs incurred by the transferee with respect to its acquisition of such Property or Unit. Notwithstanding any provision herein to the contrary, except for persons or entities having a valid lien on a Property or Unit, only Qualified Buyers may acquire an interest in a Property or Unit at a foreclosure sale or in lieu of foreclosure. If any person or entity having a lien on a Property or Unit is not a Qualified Buyer and acquires an interest in such Property or Unit in a foreclosure sale or in lieu of foreclosure, the provisions of Paragraph 14 shall apply. It is the APCHA's intent that the terms and provisions of this Agreement shall remain in full force and effect with respect to the Property and all Units until modified, amended or terminated in accordance with paragraph 38 hereof. b. In the event that APCHA or the Board, as the designee of the APCHA, exercise the option described above, the APCHA and/or its designee, may sell the Property or Unit to Qualified Buyers as that term is defined herein, or rent the Property or Unit to qualified tenants who meet the income, occupancy and all other qualifications, established by the APCHA in its Employee Housing Guidelines until a sale to a Qualified Buyer is effected. C. Notwithstanding the foregoing, in the event of foreclosure by the holder of the first deed of trust on such Property or Unit, if the holder of such deed of trust is the grantee under the public trustee's deed and APCHA does not exercise its option to purchase as provided in paragraph 27, then APCHA agrees to release the Property or Unit from the requirements of this Deed Restriction. GENERAL PROVISIONS 28. Notices Any notice, consent or approval which is required to be given hereunder shall be given by mailing the same, certified mail, return receipt requested, properly addressed and with postage fully prepaid, to any address provided herein or to any subsequent mailing address of the party as long as prior written notice of the change of address has been given to the other parties to this Agreement. Said notices, consents and approvals shall be sent to the parties hereto at the following addresses unless other- wise notified in writing: To APCHA: Aspen/Pitkin County Housing Authority 530 East Main, Lower Level, Aspen, Colorado 81611 To Owner: Scott Kirkwood and Lori Dodd 0045 Callahan Court #203, Aspen, Colorado 81611 29. Exhibits All exhibits attached hereto (Exhibits "A ", `B" and "C ") are incorporated herein and by this reference made a part hereof. 30. Severabiliri Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such a manner as to be valid under applicable law; but if any provision of any of the foregoing Deed Restriction /0045 Callahan Court 4203 Page 9 shall be invalid or prohibited under said applicable law, such provisions shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of such document. 31. Choice of Law This Agreement and each and every related document are to be governed and construed in accordance with the laws of the State of Colorado. 32. Successors Except as otherwise provided herein, the provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. 33. Section Headings Paragraph or section headings within this Agreement are inserted solely for convenience of reference, and are not intended to, and shall not govern, limit or aid in the construction of any terms or provisions contained herein. 34. Waiver No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any party hereto except on the basis of a written instrument executed by the parties to this Agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition, provided that such waiver is in writing. 35. Gender and Number Whenever the context so requires herein, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. 36. Personal Liability The Owner agrees that he or she shall be personally liable for any of the transactions contemplated herein. 37. Further Actions The parties to this Agreement agree to execute such further documents and take such father actions as may be reasonably required to carry out the provisions and intent of this Agreement or any agreement or document relating hereto or entered into in connection herewith. 38. Modifications The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made by writings signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. Notwithstanding the foregoing, the APCHA reserves the right to amend this Agreement unilaterally where deemed necessary to effectuate the purpose and intent of this Agreement, and where such unilateral action does not materially impair the Owner's rights under this Agreement. 39. Mortgagee Right to Cure Nothing herein shall be deemed to impair any right of a mortgagee of a Unit from curing any default by an Owner of his or her financial obligations with respect to such Unit. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above first written. OWNERS: Scott Kirkwood Lori Dodd Deed Restriction /0095 Callahan Court 0203 Page 10 STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this Kirkwood and Lori Dodd. Witness my hand and official seal; My commission expires: / / Notary day of , 2010 by Scott ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY The foregoing Deed Restriction Agreement for the Occupancy and Resale of 0045 Callahan Court #203, Burlingame Ranch Condominiums, of the Aspen/Pitkin County Housing Authority and its terms are hereby adopted and declared by the Aspen/Pitkin County Housing Authority. THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY Tom McCabe, Executive Director STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this _ day of McCabe, as Executive Director of the Aspen/Pitkin County Housing Authority. Witness my hand and official seal; My commission expires: 2010, by Tom Notary Public Deed Restriction /0045 Callahan Court #203 Page 11 EXHIBIT "A Legal Description Unit 203, 0045 CALLAHAN COURT BUILDING, BURLINGAME RANCH I CONDOMINIUMS, according to the Condominium Map recorded November 13, 2006 under Reception No. 530970 and First Supplement recorded January 9, 2007 under Reception No. 533147, Second Supplement recorded June 26, 2007 under Reception No. 539360, Third Supplement recorded June 26, 2007 under Reception No. 539361, Fourth Supplement recorded November 7, 2007 under Reception No. 543904, and Fifth Supplement recorded November 7, 2007 under Reception No. 543906, and according to the Condominium Declaration of Burlingame Ranch I recorded November 13, 2006 under Reception No. 530969 and First Supplement recorded January 9, 2007 under Reception No. 533146, Second Supplement recorded June 26, 2007 under Reception No. 539358, Third Supplement recorded June 26, 2007 under Reception No. 539359, Fourth Supplement recorded November 7, 2007 under Reception No. 543903 and Fifth Supplement recorded November 7, 2007 under Reception No. 543905, County of Pitkin, State of Colorado. EXHIBIT "B" Permitted Capital Improvements The term "Permitted Capital Improvement' as used in the Agreement shall only include the following:. a. Improvements constructed pursuant to approval by the City of Aspen the additional of one bedroom and one bathroom. b. Improvements or fixtures erected, installed or attached as permanent, functional, non - decorative improvements to real property, excluding repair, replacement and/or maintenance improvements; C. Improvements for energy and water conservation; d. Improvements for the benefit of seniors and/or handicapped persons; e. Improvements for health and safety protection devices; f Improvements to add and/or finish permanent/fixed storage space; g. Improvements to finish unfinished space. h. Landscaping; i. The cost of adding decks and balconies, and any extension thereto; and/or j. Improvements associated with health and safety, energy efficiency, water conservation, and green building products. 2. Permitted Capital Improvements as used in this Agreement shall NOT include the following: a. Jacuzzis, saunas, steam showers and other similar items; b. Upgrades or addition of decorative items, including lights, window coverings and other similar items; C. Upgrades of appliances, plumbing and mechanical fixtures, carpets and other similar items included as part of the original construction of a unit and/or improvements required to repair and maintain existing fixtures, appliances, plumbing and mechanical fixtures, painting, and other similar items, unless replacement is energy efficient or for safety and health reasons. 3. All Permitted Capital Improvement items and costs shall be approved by the APCHA staff prior to being added to the Maximum Resale Price as defined herein. In order to get credit for an improvement where a building permit is required, the improvement will not be counted unless a Letter of Completion was obtained by the Building Department. 4. The Permitted Capital Improvements shown hereon shall be subject to such additions, deletions and modifications as may be set forth in the Employee Housing Guidelines from time to time; provided that if any improvement is made at a time when it would be deemed a Permitted Capital Improvement hereunder or under Deed Restriction /D045 Callahan Court #203 Page 12 the Employee Housing Guidelines, such improvement shall be deemed a Permitted Capital Improvement at all times notwithstanding any modification of the Employee Housing Guidelines. Deed Restriction /0045 Callahan Court #203 Page 13 EXHIBIT "C" MINIMUM STANDARDS FOR SELLER TO RECEIVE FULL VALUE AT RESALE • Clean unit • Carpets steam - cleaned two or three days prior to closing • All scratches, holes, burned marks repaired in hardwood floors, linoleum, tile, counter tops etc. • No broken windows • All screens in windows (if screens were originally provided) • All doors will be in working order with no holes • All locks on doors will work • All keys will be provided; e.g., door, mail box, garage • All mechanical systems shall be in working order • Walls paint ready • Normal wear and tear on carpet; if carpet has holes, stains, etc., the carpet and padding shall be replaced or escrow funds at current market value per square foot for a comparable product shall be held at the time of closing to be used by the new buyer • No leaks from plumbing fixtures • No roof leaks • Any safety hazard remedied prior to closing • Satisfaction of radon issue if found at time of inspection • All light fixtures shall be in working order DEFINITIONS: Clean Unit: All rooms will be cleaned as stated below: Kitchen: • Range — Inner and outer services will be cleaned. • Range hood and Exhaust Fan • Refrigerator and Freezer — Inner and outer surfaces of refrigerator and freezer will be clean. Freezer will be defrosted. • Cabinets and Countertops — Exterior and interior surfaces of cabinets and drawers will be clean. Door and drawer handles, if provided, shall be clean and in place. • Sink and Garbage Disposal — Sink and plumbing fixtures will be clean. If garbage disposal provided, this must be in working order. • Dishwasher — If provided, must be in working order and inner and outer surfaces shall be clean. • Blinds, Windows, Screens: • Mini - blinds, Venetian Blinds, Vertical Blinds, Pull Shades —Will be clean. • Windows — All window surfaces, inside and outside of the window glass, shall be clean. • Screens — Screens will be clean and in place with no holes or tears. • Closets Closets, including floors, walls, hanger rod, shelves and doors, shall be clean. • Light Fixtures Light fixtures will be clean and shall have functioning bulbs /florescent tubes. Deed Restriction /0095 Callahan Court #203 Page 14 Bathrooms: o Bathtub, Shower Walls, Sinks — Bathtubs, shower walls and sinks shall be clean. o Toilet and Water Closet — Water closets, toilet bowls and toilet seats will be clean. If the toilet seat is broken or peeling, the seat shall be replaced. • Tile — All tile and grout will be clean. • Mirrors and Medicine Cabinets — Mirrors and medicine cabinets shall be cleaned inside and out. • Shelves and/or Other Cabinetry — All other shelving or cabinetry shall be cleaned inside and out. Walls Ceilings. Painted Doors and Baseboards Painted surfaces must be cleaned with care to ensure the surface is clean without damaging the paint. Floors: Floor cleaning includes sweeping and mopping and could include stripping, waxing and buffing. Types of floor surfaces include wood, wood parquet tiles, linoleum, asphalt tile, vinyl tile, mosaic tile, concrete and carpet. If carpet, all carpets shall be cleaned at least two days prior to closing. • Interior Storage/Utility Rooms Storage /utility rooms shall be cleaned. Properly cleaned storage /utility rooms will be free from odors, removable stains, grease marks or accumulations. Safety Hazard Any item that provides a safety hazard shall be fixed. This would include, but is not limited to, exposed electrical wiring, satisfaction of any radon issue found, ventilation for gas hot water system, etc. Walls Paint - Ready All holes shall be patched; all posters, pictures, etc., shall be removed from all walls; all nails, tacks, tape, etc., shall be removed from all walls; and all walls shall be clean and ready for the new buyer to paint. If wallpaper has been placed on the wall and in good condition, the wallpaper can remain; if the wallpaper is peeling off, the wallpaper must be removed. Windows If a window is broken, including the locking mechanism, the window shall be replaced. Deed Restriction /0045 Callahan Court #203 Page 15 Attachment D New Memorandum of Acceptance for 45 Callahan Court, Unit 203 MEMORANDUM OF ACCEPTANCE FOR THE DEED RESTRICTIONAGREEMENT FOR THE OCCUPANCYAND RESALE OF THE 0045 CALLAHAN COURT, #203 BURLINGAME RANCH CONDOMINIUMS RECITALS: WHEREAS, Scott Kirkwood and Lori Dodd, Owners, purchased on December 10, 2007 from the City of Aspen, the Seller, at a price of $271,000 described as: Unit 203, 0045 CALLAHAN COURT BUILDING, BURLINGAME RANCH I CONDOMINIUMS, according to the Condominium Map recorded November 13, 2006 under Reception No. 530970 and First Supplement recorded January 9, 2007 under Reception No. 533147, Second Supplement recorded June 26, 2007 under Reception No. 539360, Third Supplement recorded June 26, 2007 under Reception No. 539361, Fourth Supplement recorded November 7, 2007 under Reception No. 543904, and Fifth Supplement recorded November 7, 2007 under Reception No. 543906, and according to the Condominium Declaration of Burlingame Ranch I recorded November 13, 2006 under Reception No. 530969 and First Supplement recorded January 9, 2007 under Reception No. 533146, Second Supplement recorded June 26, 2007 under Reception No. 539358, Third Supplement recorded June 26, 2007 under Reception No. 539359, Fourth Supplement recorded November 7, 2007 under Reception No. 543903 and Fifth Supplement recorded November 7, 2007 under Reception No. 543905, County of Pitkin, State of Colorado. Also known as 0045 Callahan Court, #203, Aspen, Colorado 81611. WHEREAS, the Seller of that unit required, as a prerequisite to the sale transaction, that the Owner acknowledge and agree to the terms, conditions and restrictions found in that certain instrument entitled "Deed Restriction Agreement for the Occupancy and Resale of 0045 Callahan Court #203, Burlingame Ranch Condominiums", including Exhibits "A ", B ", and "C ", recorded on at Reception No. of the records of Pitkin County, Colorado (hereinafter "Deed Restriction "). WHEREAS, as a condition of approving the addition of one - bedroom and one - bathroom to the unit, the Seller and Aspen/Pitkin County Housing Authority (hereinafter APCHA) require a new Deed Restriction Agreement. NOW, THEREFORE, the Owner: 1. Agrees that this Memorandum of Acceptance supersedes the Memorandum of Acceptance dated December 11, 2007 and recorded at Reception No. 544806. Acknowledges that the undersigned has carefully read the entire 'Deed Restriction" for this unit and has had the opportunity to consult with legal and financial counsel concerning it and fully understands it. owner(s) Initials 3. Hereby accepts the Deed Restriction as recorded above, in its entirety, with the following additions: a. Date of the Agreement is agreed to be b. The maximum sale price is based on their original purchase on December 10, 2007 of $271,000.00. C. Capital improvements cannot exceed $27,100, which is ten percent (10 %) of the listed purchase price as stated in b above, and cannot exceed an additional $29,000, for an addition of one bedroom and one bathroom, not to exceed a total of $56,100. Except as may be permitted based upon depreciation as provided herein, in no event shall permitted capital improvements exceed $56,100. The permitted capital improvements allowed shall depreciate down as noted in paragraph 10 a -e of the Deed Restriction. recorded at Reception No. d. The unit is classified as a Category 4. e. The unit, after completion of the additional bedroom and bathroom, and upon receipt of the Certificate of Completion from the Building Department, will be classified as a three - bedroom, two -bath unit. £ Notice to the Owners should be sent to: Scott Kirkwood and Lori Dodd 0045 Callahan Court, #203, Aspen, Colorado 81611 3. Directs that this memorandum be placed of record in the real estate records of Pitkin County, Colorado. IN WITNESS WHEREOF, the parties hereto have executed this instrument on the day and year above fast written. BUYERS: Scott Kirkwood Lori Dodd (Notary on following page) 2 Owner(s) Initials STATE OF COLORADO COUNTY OF PITKIN ss. The foregoing instrument was acknowledged before me this day of 2010 by Scott Kirkwood and Lori Dodd. WITNESS my hand and official seal; My commission expires: Notary Public ACCEPTANCE BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY The foregoing Agreement and its terms are accepted by The Aspen/Pitkin County Housing Authority. THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY Tom McCabe, Executive Director STATE OF COLORADO COUNTY OF PITKIN ss. The foregoing instrument was acknowledged before me this day of 2010, by Tom McCabe, Executive Director of the Aspen/Pitkin County Housing Authority. WITNESS my hand and official seal; My commission expires: Notary Public owner(s) Initials Attachment E Letter to APCHA Board from Owners of 45 Callahan Court, Unit 203 LETTER FROM OWNERS TO HOUSING AUTHORITY April 6, 2010 Scott Kirkwood / Lori Dodd 45 Callahan Ct, #203 Aspen, CO 81611 Mr. Tom McCabe Executive Director Aspen Housing Authority Main Street Aspen, CO 81611 Dear Mr. McCabe: We are getting ready to make some major improvements to our Burlingame unit #203 and are seeking approval to add the improvement cost to the equity in our home as we are going to be incurring significant expense due to the unique opportunity our unit presents. Our unit is very unique in that we have nearly 400 sq. ft of unfinished space (already insulated, floored and partially wired) on the second level of our single -level condo that we have no way to access unless we bring a 12 foot ladder into the living room and climb through a 3' x 2' opening in the wall. We were informed that the original plans for our unit were changed sometime during the construction process (it was originally designed as office space) resulting in a great deal of unlivable space within our unit and a rather odd layout. In spite of this, our unit has so much potential that it is inconceivable we don't make use of the space available to us to use as efficiently as possible. The recommendation from Poss Architects includes adding a stairway and loft in order to access the unfinished space. This is going to require installing support beams to handle the load. In addition to finishing out the space, we will be installing a 2nd bathroom upstairs. We are going to have to remove the toilet and tear - up the floor in our only bathroom in order to access the plumbing, therefore our home will not be livable during this time and we will have to rent another place to live. Overall we will be increasing the square footage by 41 % within our unit. The maximum allowed under the 10% capital improvement cap will give us an additional $27,100 in equity; however the estimated out -of- pocket cost for completion is $61,946. Prior to initiating this entire process (in the latter part of2009,) we contacted Pam Gabel at the Housing Authority regarding the 10% capital improvement cap and informed her we thought the project would cost us close to $50K. She stated that if we could show multiple bids that exceeded the 10% max then you would consider an exception to this rule. We proceeded with hiring and paying for an architect/general contractor - nearly $2000 to date, in order to move forward with our plans. Once all of our plans and approvals were finalized in March 2010, we placed another call to Pam to see what we needed to do at this point for the housing authority's approval. At this time she informed us that there were no exceptions to the 10% max capital improvement rule and did not acknowledge telling us otherwise. As you can imagine, this was very upsetting to us. Please know that we are cutting every comer possible in order to make this affordable. We have reduced the number of windows from the original plans, as well as removed the deck. We personally will be purchasing and picking up a majority of the materials, installing doors, door casings and trim (windows, doors and baseboard) and plan to do all the painting ourselves. Many expenses we didn't initially anticipate have arisen in order to comply with building dept codes.:.. testing for asbestos, hardwiring new fire -alarm sensors for additional fire- sprinklers, installing additional support beams and tempering windows ... just to name a few. We love our home and hope to live here for many, many years to come. However, with the current state of the economy it would be negligent on our part to assume that our jobs are secure. Sinking this much money into our home could be very detrimental to our financial stability if we cannot recoup the cost should we be forced to sell in the near future. Due to the unusual layout of our unit, extensive nature of the improvements, increased livability and significant expense; we are hoping you will seriously consider waiving the 10% capital improvement maximum as this is not a typical capital improvement for employee housing. We truly believe that with the added improvements, this unit would be highly desirable and extremely marketable at an increased sales price, especially when you take into consideration the spectacular views of all four ro ski areas from the proposed 2 level. It is our understanding that in order for the HA to add equity for the bank's valuation, as well as appreciate the added equity from the remodel, we will have to refinance our home after the project is completed. Financially, this is going to be difficult. We have secured a personal loan at a very high interest rate in order to fund this project. We would very much welcome additional equity added to the value of our home when we refinance in order to help pay this off with a cash -out option. Paying title insurance, appraisal fees and loan origination costs for a second time after only 2 yrs of occupancy is very disconcerting especially if interest rates go above our very good 30 yr fixed rate. Which leads to the question.... Would a home equity loan (which also requires an appraisal) be sufficient in lieu of refinancing in order to increase the home value if interest rates continue to rise and we are not able to lock -in at an acceptable rate? The plans have already been approved by the HOA and we have preliminary approval from the City. We want to submit the permit application as soon as possible and hope to have a permit early next month. We have attached the general contractor's proposal, time -line for completion, architectural plans as well as photos for your review. We would very much welcome a site visit in order for you to better understand the situation. Thank you for your consideration. Lori Dodd and Scott Kirkwood 618 -5740 askaspen(a)comcast.net or doddlorigaol.com NAd MEMORANDUM TO: Mayor and City Council FROM: Kathryn Koch, City Clerk DATE: July 19, 2010 RE: Resolution #5S010 — Calling Special Election REQUEST OF COUNCIL: Staff recommends adoption of Resolution #5010 calling a special election for November 2, 2010. DISCUSSION: The Charter of the City states: Section 2.2. Municipal elections. A general municipal election shall be held on the first Tuesday after the first Monday in May of 1971, and biennially thereafter. Any special municipal election may be called by resolution or ordinance of the council at least sixty (60) days in advance of such election. The resolution or ordinance calling a special municipal election shall set forth the purpose or purposes of such election. Council has discussed extending the lodge and marketing tax, a Charter amendment on the definition of publication, a Charter amendment on how to conduct regular municipal elections. The deadline for ballot questions to be submitted to the Pitkin County Clerk is 4 p.m. September P. Council's last regular meeting before that deadline is August 23` This will be a coordinated election with Pitkin County and is a polling place election ALTERNATIVES: Council could choose to not propose any questions to the electorate at this time. PROPOSED MOTION: "I move to approve Resolution 9Series of 2010, calling a special election for November 2, 2010." OR by adopting the consent calendar, Council is calling a special election for November 2010. CITY MANAGER COMMENTS: RESOLUTION NO. 55 (Series of 2010) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, CALLING FOR AND ESTABLISHING A DATE FOR A SPECIAL MUNICIPAL ELECTION TO BE CONDUCTED ON NOVEMBER 2, 2010. WHEREAS, Section 2.2 of the Home Rule Charter of the City of Aspen provides that any special municipal election may be called by resolution or ordinance of the City Council at least sixty (60) days in advance of such election; and WHEREAS, the City Council desires to place before the Aspen electorate certain ballot questions; and WHEREAS the City Council may add such additional questions to the ballot as it may hereafter deem appropriate. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1. A special municipal election shall be and is hereby called and established for Tuesday, November 2, 2010, for the purpose of submitting to the electorate certain ballot questions to be determined by the City Council at a future date. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the _ day of 2010. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Kathryn S. Koch, City Clerk JPW -7/16/ 2010 -G: \john\ word \resos \elect- spec- 11- 10.doc 2 V1 e0w MEMORANDUM TO: Mayor and City Council FROM: Austin Weiss, Trails Coordinator, Parks & Recreation Dept. Steven Cronin, Landscape Designer, Parks & Recreation Dept. THRU: Stephen Ellsperman, Parks and Open Space Director DATE OF MEMO: July 6, 2010 MEETING DATE: July 26, 2010 RE: Resolution #2010- 50 : Approval of the Concrete Trail Replacement Contract for Construction for the ABC Trail Concrete Project REQUEST OF COUNCIL: At this time we are requesting you to authorize a CONTRACT FOR CONSTRUCTION for the ABC TRAIL CONCRETE PROJECT for the total amount of $50,125.00 with J &J CONCRETE STRUCTURES, INC. PREVIOUS COUNCIL ACTION: None BACKGROUND: The Construction Contractor, J &J Concrete Structures, Inc. was selected from a group of six (6) qualified contractors to provide construction services for concrete replacement for a section of the ABC Trail. The Contractor has developed a bid proposal that should be acceptable to the City in order to complete the replacement of the concrete trail. DISCUSSION: The Scope of Work includes the replacement of a 10 -foot wide paved pedestrianfbike trail along Highway 82. The trail currently provides an essential section of trail, which connects the City of Aspen to the Aspen Business Center, Annie Mitchell, and Burlingame Neighborhoods. The section of trail is located along the north side of Highway 82 between Stage Road and Harmony Road in Aspen. Included in the work is approximately 750 linear feet of a 10' -0" wide, 6" depth (7,500 square feet), San Diego Buff colored concrete trail. The sub -base preparation is being completed by the in -house Parks Dept. construction staff and is not included in the Contractors scope of work. If approved the concrete work is anticipated to begin in late July 2010. The trail has been weathered over the years and damaged by heavy equipment, leaving a very significant cracked surface throughout this portion of trail. The damage is significant and has created an unsafe trail user experience. This concrete replacement will provide a user friendly and safe surface for the community trail system. Page 1 of 3 FINANCIALBUDGET IMPACTS: Originally, a comprehensive budget of $44,000.00 had been established for the project. Since the lowest bid came in at $50,125.00, the remaining $6,125.00 will come out of the Pedestrian Trail Development Fund to meet the total project cost. Staff will be presenting the project to the City Council on July 26th to confirm the Cities financial commitment to the project for a value of $50,125.00, which is the lowest bid price from the six (6) companies that proposed a price for the project. A portion of the total Scope of Work will be completed by in -house Parks Department construction staff and resources. The portion of work will include all landscape restoration work associated with the trail corridor, along with the demo of the existing concrete trail. The Contractor, J &J Concrete Structures, Inc. proposes to complete the contracted Scope of Work covered under this Contract for Construction for Fifty Thousand One - Hundred and Twenty -Five Dollars ($50,125.00). The contracted scope of work is illustrated on the attached vicinity map graphic (Attachment B). ENVIRONMENTAL IMPACTS: The ABC Trail provides a connection between the City of Aspen trail system and the Aspen Business Center, Annie Mitchell, and Burlingame Neighborhoods. The existing ABC Trail currently does not meet the City of Aspen trail design standard. A properly installed trail surface will promote a better means of alternative transportation in and out of Aspen for many years thereafter. RECOMMENDED ACTION: Staff is recommending Council approval of the Contract for Construction for the ABC Trail Concrete Project in order to allow the project to be completed during summer 2010. ALTERNATIVES: Council could choose not to approve this Contract for Construction, which would delay construction work intended to make this trail surface safer to the general public. Construction of any improvements would likely be delayed until at least 2011. PROPOSED MOTION: I move to approve the Contract for Construction between the City of Aspen and the Construction Contractor, J &J Concrete Structures, Inc. for the ABC Trail Concrete Project construction for the amount of Fifty Thousand One- Hundred and Twenty - Five Dollars ($50,125.00). CITY MANAGER Page 2 of 3 RESOLUTION # (Series of 2010) A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND J &J CONCRETE STRUCTURES, INC. SETTING FORTH THE TERMS AND CONDITIONS REGARDING CONCRETE TRAIL REPLACEMENT 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 J &J Concrete Structures Inc., 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 J &J concrete Structures, Inc. regarding concrete trail replacement 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, July 26, 2010 Kathryn S. Koch, City Clerk nh■NRdaLrs CONTRACT FOR CONSTRUCTION THIS AGREEMENT, made and entered into on July 26, 2010, by and between the CITY OF ASPEN, Colorado, hereinall er called the "City', and J S J CONCRETE INC., herewdA r calved tie'Contractce. WHEREAS, the City has caused to be prepared, in accordance with the law, specifications and other Contract Documents for the work herein described, and has approved and adopted said documents, and has caused to be published, in the manner and for the lime required by law, an advertisement, for the project: ABC Trail Concrete Project, and, WHEREAS, the Contractor, in response to such advertisement, or in response to direct invitation, has submitted to the City, in the manner and at the time specified, a sealed Bid in accordance with the terms of said Invitation for Bids; and, WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined, and canvassed the Bids submitted nt response to the published Invitation for Bids therefore, and as a result of such canvass has determined and declared the Contractor to be the lowest responsible and responsive bidder for the said Work and has duly awarded to the Contractor a Contract For Construction therefore, for the sum or sums set forth Herein; NOW, THEREFORE, in consideration of the payments and Contract for Construction herein mentioned: 1. The Contractor shall commence and complete the construction of the Work as fully described in the Contract Documents. 2. The Contractor shall furnish all of the materials, supplies, tools, equipment, labor and other services necessary for the construction and completion of the Work described herein. 3. The Contractor shall commence the work required by the Contract Documents within seven (7) consecutive calendar days after the date of 'Notice To Proceed' and will complete the same by the date and time indicated in the Special Conditions unless the time is extended in accordance with appropriate provisions in the Contrail Documents. 4. The Contractor agrees to perform all of the Work described in the Contract Documents and comply with the terms therein for a sum not to exceed FIRy Thoum d One Hundred Twenty Five ( ;50,125.00) DOLLARS or as shown on the BID proposal. 5. The term 'Contrail Documents' means and includes the documents listed in the City of Aspen General Conditions to Contracts for Construction (version GC97 -2) and in the Special Conditions. The Contract Documents are included herein by this reference and made a part hereof as if fully set forth here. W- 971.doc Pape t "CC1 ON6d 8ZL90Z6 OL6 <<MV.0ZLOL6 NOISNHOr 85'9L 6L-LO -0LOZ 6. The City shall pay to the Contractor in the manner and at such time as set forth in the General Conditions, unless modified by the Special Conditions, such amounts as required by tho Doouroorka. This Conhad for Conshuction shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein or in the Contract Documents, this Contract for Construction shall be su*d to the City of Aspen ftcuremard Code, Title 4 of the Municipal Code, including the approval requirements of Section 44)8 -040. This agreement shall not be binding upon the City unless duly executed by the City Manager or the Mayor of the City of Aspen (or a duly authors official in hisulmer absence) following a resolution of the Council of the City of Aspen authorizing the Mayor or City Manager (or a duly authorized official in his/her absence) to execute the same. 8. This agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Contractor respectively and their agents, representatives, employees. Successors, assigns, and legal nepreser>taitrves. Neither the City nor the Contractor shall have the right to assign, transfer or sublet his or her interest or obligations hereunder without the written consent of the other party- 9. This agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom the Contractor or the City may assign this Contract For Construction m accordance with the specific written consent any rights to claim damages or to bring suit, action or other proceeding against either the City or the Contractor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained- 10. No waiver of default by either party of any terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terns, covenants or conditions herein contained, to be performed, kept and observed by the other party. 11. The parties agree that this Contract For Construction was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be kept exclusM* in the courts of Piticin County, Colorado. 12- In the event that legal action is necessary to enforce any of the provisions of this Contract for Construction, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 13. This Contract For Construction was reviewed and accepted through the mutual efforts of the parties hereto, and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Contract For Caron. 14. The undersigned representative of the Contractor, as an inducement to the City to execute this Contract For Construction, represents that heMw is an authorized representative of the Contractor for the purposes of executing this Contract for Construction and that he/she has full and complete authority to enter into this Contract For Construction for the terms and conditions specified herein. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract For Construction on the date first above written. ATTESTED BY: RECOMMENDED FOR APPROVAL: City Engineering Department By: CITY OF ASPEN, COLORADO By: Title: APPROVED AS TO FORM: ATTESTED BY: City Attorney CONTRACTOR: BY: rr - 7 ^_ Title: a.L Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate tilt. CC1•971.doo Page "CC1 Attachment B: The vicinity map below is of the ABC Trail concrete re- placement area. Construction is going to be along the North side of Highway 82, between Stage Road & Harmony Road. "4 0 MEMORANDUM Vit TO: Mayor Ireland and Aspen City Council THRU: Chris Bendon, Community Development Director FROM: Drew Alexander, Planner RE: Land Use Code Amendments — Ordinance No. � cries 2010 — First Reading Sign Code MEETING DATE: July 26, 2010 SUMMARY: Community Development (ComDev) has created a revised Sign Code that represents several months of research and interaction with the community. These amendments were initiated by ComDev, after years of dealing with a frustrating and unreasonable Sign Code. The single largest change is to the signage allotment system. Currently, signage is distributed based upon the size of the building the business is within. This is a suitable strategy until a building with multiple tenants is involved. The idea is that the property manager will distribute signage responsibly amongst the tenants and everyone will have their fair share. This ultimately becomes an extremely difficult tracking process and mistakes frequently happen. The worst case scenario is that a new business applies for a sign permit only to find out there is no signage remaining for their building. The draft Sign Code removes this system completely. In its place is a per- business signage allotment system. For example, all retail and restaurant businesses would be granted an individual and uniform amount of signage per fagade. No longer will applicants be tasked with measuring other tenants' signs, and no longer will the "no signage remaining" scenario arise. The second major change to the Sign Code has to do with sandwich board signs. In 2009, ComDev received a large amount of complaints and push -back from the community in regards to sandwich board signs. The issue was discussed with CCLC, the Historic Preservation Commission, and City Council. The consensus from these groups was to still allow sandwich board signs, but to make the criteria much more stringent and easily enforceable. The draft Sign Code presents a system that would trigger a significant reduction in the total number of sandwich board signs in the City. Throughout the amendment process, Staff has met with the ACRA Board, CCLC, and held an open house for those interested in the changes. This public outreach strategy has been very beneficial to the draft and several helpful ideas were gained from these meetings. ComDev has created a Sign Code e -mail group that updates are sent to and feedback is always welcome. Overall, the new Sign Code accomplishes the following: • Simplifies the signage allotment system • Alters the sandwich board sign language • Removes some redundancy and poor definitions • Provides visuals that will assist both applicants and Staff Staff recommends the Council adopt the proposed code amendments. APPLICANT: City of Aspen PREVIOUS ACTION: The Planning and Zoning Commission approved Resolution No. 10, Series of 2010, recommending approval for the proposed amendments to the Sign Code. Work sessions have been held with CCLC, ACRA, and various members of the community. REVIEW PROCEDURE: Text Amendment. At a duly noticed public hearing, the Planning and Zoning Commission shall recommend by Resolution the City Council to approve, approve with conditions, or deny the application. City Council is the final review authority. RECOMMENDATION: Staff recommends the City Council approve the City - initiated amendments to the Sign Code as described in Ordinance (, eries of 2010. CITY MANAGER COMMENTS: RECOMMENDED MOTION: "I move to approve Ordinance No. Series of 2010." ATTACHMENTS: Exhibit A — Existing text for Sign Code Exhibit B — Proposed text for Sign Code, Included in Ordinance No. eries of 2010 Exhibit C — P &Z Resolution No 10, Series of 2010 Page 2 of 2 F�XH1131T R Chapter 26.510 SIGNS Sec. 26.510.010 Sec. 26.510.020 Sec. 26.510.030 Sec. 26.510.040 Sec. 26.510.050 Sec. 26.510.060 Sec. 26.510.070 Sec. 26.510.080 Sec. 26.510.090 Sec. 26.510.100 Sec. 26.510.110 Sec. 26.510.120 Sec. 26.510.130 Sec. 26.510.140 Purpose Applicability and scope Procedure for sign permit approval Prohibited signs Sign measurement Sign setback Sign illumination Sign lettering, logos and graphic designs Structural characteristics Nonconforming signs Signs on public right -of -way Temporary signs Zone District sign restrictions Window displays 26.510.010. Purpose. The purpose of this Chapter is to promote the public health, safety and welfare through a comprehensive system of reasonable, effective, consistent, content - neutral and nondiscriminatory sign standards and requirements. Toward this end, the City Council finds that the City is an historic mountain resort community that has traditionally depended on a tourist economy. Tourists, in part, are attracted to the visual quality and character of the City. Signage has a significant impact on the visual character and quality of the City. The proliferation of signs in the City would result in visual blight and unattractiveness and would convey an image that is inconsistent with a high quality resort environment. Effective sign control has preserved and enhanced the visual character of other resort communities in Colorado and other states. The City must compete with many other Colorado, national and international resort communities for tourism opportunities. In order to preserve the City as a desirable community in which to live, vacation and conduct business, a pleasing, visually attractive environment is of foremost importance. These sign regulations are intended to: A. Preserve and maintain the City as a pleasing, visually attractive environment. B. Promote and accomplish the goals, policies and objectives of the Aspen Area Comprehensive Plan. C. Enhance the attractiveness and economic well -being of the City as a place to live, vacation and conduct business. D. Address community needs relating to upgrading the quality of the tourist experience, preserving the unique natural environment, preserving and enhancing the high quality human existence, retaining the City's premier status in an increasingly competitive resort market, preserving the historically and architecturally unique character of the City, fostering the "village style" quality of the City and preserving and enhancing scenic views. E. Enable the identification of places of residence and business. F. Allow for the communication of information necessary for the conduct of commerce. G. Encourage signs that are appropriate to the zone district in which they are located and consistent with the category of use to which they pertain. H. Permit signs that are compatible with their surroundings and aid orientation and preclude placement in a manner that conceals or obstructs adjacent land uses or signs. I. Preclude signs from conflicting with the principal permitted use of the site or adjoining sites. Curtail the size and number of signs and sign messages to the minimum reasonably necessary to identify a residential or business location and the nature of any such business. K. Establish sign size in relationship to the scale of the lot's street frontage and building's street frontage along which the sign is to be placed. L. Protect the public from the dangers of unsafe signs and require signs to be constructed, installed and maintained in a safe and satisfactory manner. M. Lessen hazardous situations, confusion and visual clutter caused by proliferation, improper placement, illumination, animation and excessive height, area and bulk of signs which compete for the attention of pedestrian and vehicular traffic. N. Regulate signs in a manner so as to not interfere with, obstruct vision of or distract motorists, bicyclists or pedestrians. (Ord. No. 10 -2005, § 1) 26.510.020. Applicability and scope. This Chapter shall apply to all signs of whatever nature and wherever located within the City except for the Aspen Highlands Village PUD. Sign regulations for Aspen Highlands Village PUD were approved as City Council Ordinance 43, Series of 2003. No sign shall be allowed except as permitted by this Chapter. (Ord. No. 10 -2005, § 1) 26.510.030. Procedure for sign permit approval. A. Permit required It shall be unlawful to erect, place, construct, reconstruct or relocate any sign without first obtaining a sign permit from the Chief Building Official. B. Exempt signs. The following signs or sign activities shall be exempt from obtaining a sign permit. Exemptions shall not be construed as relieving the applicant and owner of the sign from the responsibility of complying with all applicable provisions of this Title. The exemption shall apply to the requirement for a sign permit under this Section. 1. Preventive maintenance. The ordinary preventive maintenance of a lawfully existing sign, which does not involve a change of placement, size, lighting, color or height. 2. Repainting. The repainting of a lawfully existing sign exactly as it was prior to such activity. 3. Banners, pennants, streamers and balloons and other gas -filled figures. Temporary banners, pennants, streamers, balloons and inflatables shall be permitted per Subsection 26.5 10.11 O.B, Policies regarding signage on public property. Streamers and balloons shall be permitted in association with a retail special event or sale of limited duration. 4. Construction signs. One (1) freestanding or wall sign along each lot line frontage on a street for a site under construction not to exceed a total of two (2) signs per site, which do not exceed six (6) square feet in area per sign, which are not illuminated and which identify individuals or companies involved in designing, constructing, financing or developing a site under construction. Such signs may be erected and maintained only for a period not to exceed thirty (30) days prior to commencement of construction and shall be removed within fourteen (14) days of termination of construction. A graphic design painted on a construction barricade shall be permitted in addition to such signs, provided it does not identify or advertise a person, product, service or business. 5. Directional or instructional signs. Signs, not exceeding six inches by thirty inches (6" x 30 ") in area, which provide direction or instruction to guide persons to facilities intended to serve the public. Such signs include those identifying restrooms, public telephones, public walkways, public entrances, freight entrances, affiliation with motor clubs, acceptance of designated credit cards and other similar signs providing direction or instruction to persons using a facility but not including those signs accessory to parking areas. Advertising material of any kind is strictly prohibited on directional and instructional signs. 6. Fine art. Works of fine art which in no way identify or advertise a person, product, service or business. 7. Flags. Flags, emblems and insignia of political or religious organizations providing such flags, emblems and insignia are displayed for noncommercial purposes. 8. Government signs. Signs placed or erected by governmental agencies or nonprofit civic associations for a public purpose in the public interest, for control of traffic and for other regulatory purposes, street signs, warning signs, railroad crossing signs, signs of public service companies indicating danger and aids to service and safety which are erected by or for the order of government. 9. Historic designation. Signs placed on a historic building identifying the structure as a property listed on the Aspen Inventory of Historic Landmark Sites and Structures, which sign shall be a wall sign not to exceed six (6) square feet in area. 10. Holiday decorations. Noncommercial signs or other materials temporarily displayed on traditionally accepted civic, patriotic and/or religious holidays, provided that such decorations are maintained in safe condition, do not constitute a fire hazard and that the decorations comply with Section 26.575.150, Outdoor lighting. 11. Incidental signs on vehicles. Signs placed on or affixed to vehicles or trailers where the sign is incidental to the primary use of the vehicle or trailer. This is in no way intended to permit signs placed on or affixed to vehicles or trailers which are parked on a public right -of -way, public property or private property so as to be visible from a public right -of -way where the apparent purpose is to advertise a product, service or activity or direct people to a business or activity located on the same or nearby property. 12. Interior signs. Signs which are fully located within the interior of any building or within an enclosed lobby or court of any building, which are not visible from the public right -of -way, adjacent lots or areas outside the building and signs not to exceed thirty inches by forty-two inches (30" x 42 "), located within the inner or outer lobby, court or entrance of any theatre which are intended solely for information relating to the interior operation of the building in which they are located. 13. Mail boxes, including street address. 14. Memorial signs. Memorial plaques or tablets, grave markers, statuary declaring names of buildings and date of erection when cut into any masonry surface or when constructed of bronze or other incombustible materials or other remembrances of persons or events that are noncommercial in nature. 15. Menu signs and real estate picture boxes. One (1) sign per use, with an area not to exceed four (4) square feet, with a height not to exceed the eave lines or parapet wall of that portion of the principal building in which the use to which the sign applies is located and which advertises and/or identifies a restaurant menu, drinks or foods offered or special activities incidental to drink and food service or real estate offering. 16. Public notices. Official government notices and legal notices. 17. Residential name and address signs. One (1) freestanding or wall sign per detached dwelling unit or duplex unit, with an area not exceeding two (2) square feet, which identifies the name of the occupant and the street address of the dwelling unit. 18. Shielded light in architectural design that complies with Section 26.575.150, Outdoor lighting. 19. Vending machine signs. Permanent, non - flashing signs on vending machines, gasoline pumps, ice or milk containers or other similar machines indicating only the contents of such devices, the pricing of the contents contained within, directional or instructional information as to use and other similar information. 20. Residential name and address signs. Every detached residential dwelling unit or duplex unit may have mailbox or wall signs with an area not to exceed two (2) square feet to identify the street address and the names of the occupants. 21. Security signs. Every parcel may display security signs not to exceed an area of six inches wide by six inches long (6" x 6 "). Security signs may contain a message, logo or symbol alerting the public to the presence of a security system on the premises. Security signs shall be of a neutral color. Security signs may not be placed in the City right -of -way. 22. Timeshare identification signs. A building that is approved for exempt timesharing, pursuant to Section 26.590.030, Exempt timesharing, shall have a wall - mounted sign with an area not exceeding two (2) square feet, stating that it has been approved for timesharing and identifying the name and phone number of a contact person or management entity for the property. C. Application. A development application for a sign permit shall include the following information: 1. That information required on the form provided by the Community Development Director; 2. A letter of consent from the owner of the building; 3. Proposed location of the sign on the building or parcel; 4. A blueprint or ink drawing of the plans, specifications and method of construction of the sign and its supports, showing proposed dimensions, materials and colors and the type, intensity and design of the sign's illumination, if any; and 5. The dimensions, measurements and calculations of building frontages and line frontages on streets and alleys; the dimensions of any other sign located on the property and any other information needed to calculate permitted sign area, height, type, placement or other requirements of these regulations. D. Determination of completeness. After a development application for a sign permit has been received, the Community Development Director shall determine whether the application is complete. If the Community Development Director determines that the application is not complete, written notice shall be served on the applicant specifying the deficiencies. The Community Development Director shall take no further action on the application unless the deficiencies are remedied. If the application is determined complete, the Community Development Director shall notify the applicant of its completeness. A determination of completeness shall not constitute a determination of compliance with the substantive requirements of this Chapter. E. Determination of compliance. After reviewing the application and determining its compliance and consistency with the purposes, requirements and standards in this Chapter, the Community Development Director shall approve, approve with conditions or deny the development application for a sign permit. (Ord. No. 10 -2005, § 1) 26.510.040. Prohibited signs. The following signs are expressly prohibited for erection, construction, repair, alteration, relocation or placement in the City. A. "A" frame, sandwich board and sidewalk or curb signs except as allowed per Paragraph 26.510.130.D.1.e. B. Billboards and other off - premise signs. Billboards and other off - premise signs, including security company signs which do not comply with the regulations set forth in Subsection 26.510.040.B.20 and signs on benches, are prohibited, except as a temporary sign as provided for in Section 26.510.120, Temporary signs. C. Flashing signs. Signs with lights or illuminations which flash, move, rotate, scintillate, blink, flicker, vary in intensity, vary in color or use intermittent electrical pulsations except as permitted per Section 26.575.150, Outdoor lighting. D. Moving signs. Signs with visible moving, revolving, rotating parts or visible mechanical movement of any description or other apparent visible movement achieved by electrical, electronic or mechanical means, including automatic electronically controlled copy changes. E. Neon and other gas -filled light tubes. Neon lights, televisions used for advertising or information and other gas -filled light tubes, except when used for indirect illumination and in such a manner as to not be directly exposed to public view. F. Obsolete signs. A sign which identifies or advertises an activity, business, product, service or special event no longer produced, conducted, performed or sold on the premises upon which such sign is located. Such obsolete signs are hereby declared a nuisance and shall be taken down by the owner, agent or person having the beneficial use of such sign within ten (10) days after written notification from the Community Development Director and upon failure to comply with such notice within the time specified in such order, the Community Development Director is hereby authorized to cause removal of such sign and any expense incident thereto shall be paid by the owner of the property on which the sign was located. That an obsolete sign is nonconforming shall not modify any of the requirements of this Subsection. Signs of historical character shall not be subject to the provisions of this Section. For the purpose of this Section, historical signs are defined to be those signs at least fifty (50) years in age or older. G. Portable and wheeled signs except as allowed per Paragraph 26.510.130.D. Le. H. Roof signs. L Search lights or beacons except as approved per Subsection 26.575.150.11, Outdoor lighting, Exemptions. Z Signs causing direct glare. A sign or illumination that causes any direct glare into or upon any public right -of -way, adjacent lot or building other than the building to which the sign may be accessory. K. Signs containing untruthful or misleading information. L. Signs creating optical illusion. Signs with optical illusion of movement by means of a design which presents a pattern capable of reversible perspective, giving the illusion of motion or changing of copy. M. Signs obstructing egress. A sign which obstructs any window or door opening used as a means of egress, prevents free passage from one part of a roof to any other part, interferes with an opening required for legal ventilation or is attached to or obstructs any standpipe, fire escape or fire hydrant. N. Signs on parked vehicles. Signs placed on or affixed to vehicles and/or trailers which are parked on a public right -of -way, public property or private property so as to be visible from a public right -of -way where the apparent purpose is to advertise a product, service or activity or direct people to a business or activity located on the same or nearby property. However, this is not in any way intended to prohibit signs placed on or affixed to vehicles and trailers, such as lettering on motor vehicles, where the sign is incidental to the primary use of the vehicle or trailer. O. Signs in public right -of way. A sign in, on, over or above a public right -of -way that in any way interferes with normal or emergency use of that right -of -way. Any sign allowed in a public right -of -way may be ordered removed by the Community Development Director upon notice if the normal or emergency use of that right -of -way is changed to require its removal. R Strings of light and strip lighting. Strip lighting outlining commercial structures and used to attract attention for commercial purposes and strings of light bulbs used in any connection with commercial premises unless the lights shall be shielded and comply with Section 26.575.150, Outdoor lighting. Q. Unsafe signs. Any sign which: 1. Is structurally unsafe; 2. Constitutes a hazard to safety or health by reason of inadequate maintenance or dilapidation; 3. Is not kept in good repair; 4. Is capable of causing electrical shocks to persons likely to come into contact with it; 5. In any other way obstructs the view of, may be confused with or purports to be an official traffic sign, signal or device or any other official government regulatory or informational sign; 6. Uses any words, phrases, symbols or characters implying the existence of danger or the need for stopping or maneuvering of a motor vehicle or creates, in any other way, an unsafe distraction for vehicle operators or pedestrians; 7. Obstructs the view of vehicle operators or pedestrians entering a public roadway from any parking area, service drive, public driveway, alley or other thoroughfare; 8. Is located on trees, rocks, light poles or utility poles, except where required by law; or 9. Is located so as to conflict with the clear and open view of devices placed by a public agency for controlling traffic or which obstructs a motorists clear view of an intersecting road, alley or major driveway. R Street blimps. Parked or traveling cars used primarily for advertising, sometimes referred to as "street blimps," are prohibited. Vehicle signage incidental to the vehicle's primary use is exempt. S. Banners and pennants used for commercial purposes not associated with a special event approved by the Special Events Committee approval per Subsection 26.510.110.B, Policies regarding signage on public property. (Ord. No. 55 -2000, § 13; Ord. No. 11 -2001, § 1; Ord. No. 10 -2005, § 1) 26.510.050. Sign measurement. A. General. In calculating the area allowance for signs in all Zone Districts, there shall be taken into account all signs allowed therein including window decals and signs identifying distinctive features and regional or national indications of approval of facilities. B. Sign area. Sign area shall be the area of the smallest geometric figure which encompasses the facing of a sign including copy, insignia, background and borders, provided that cut -out letter signs shall be considered wall signs and their aggregate area shall be credited toward allowable sign area at one -half (' /z) the measured area. C. Two or more faces. Where a sign has two or more faces, the area of all faces shall be included in determining the area of the sign, except where two such faces are placed back to back and are at no point more than two feet from one another. The area of the sign shall be taken as the area of the face if the two faces are of equal area or as the area of the larger face if the two faces are of unequal area. (Ord. No. 10- 2005, § 1 ) 26.510.060. Sign setback. Signs are not subject to the setback requirements of the Zone District where they are located. (Ord. No. 9 -2002, § 12; Ord. No. 10 -2005, § 1) 26.510.070. Sign illumination. A. Prohibited illumination. No sign shall be illuminated through the use of internal illumination, rear illumination, fluorescent illumination or neon or other gas tube illumination, except when used for indirect illumination and in such a manner as to not be directly exposed to public view. B. Shielding illumination. Illumination of signs shall be designed, located, shielded and directed in such a manner that the light source is fixed and is not directly visible from and does not cast glare or direct light from artificial illumination upon any adjacent public right -of -way, surrounding property, residential property or motorist's vision. Illumination shall comply with Section 26.575.150, Outdoor lighting. (Ord. No. 10 -2005, § 1) 26.510.080. Sign lettering, logos and graphic designs. A. Lettering. No lettering on any sign, including cut out letter signs, shall exceed twelve (12) inches in height, except that the initial letter in each word shall not exceed eighteen (18) inches in height. B. Logos. No logo on any sign, including cut out letter signs, shall exceed eighteen inches in height and eighteen inches in length (18" x 18 "). (Ord. No. 9 -2002, § 12; Ord. No. 10 -2005, § 1) 26.510.090. Structural characteristics. The following limitations shall apply to all freestanding, projecting and wall signs: A. Freestanding signs. Freestanding signs shall not be higher than the principal building or fifteen (15) feet, whichever is less and shall be a minimum of eight (8) feet above grade when located adjacent to a pedestrian way. B. Projecting signs. Projecting signs shall not be higher than the eave line or parapet wall of the top of the principal building, shall be a minimum of eight (8) feet above grade when located adjacent to or projecting over a pedestrian way and shall not extend more than four (4) feet from the building wall to which they are attached, except where such sign is an integral part of an approved canopy or awning. C. WaQ signs. Wall signs shall not be higher than the eave line or parapet wall of the top of the principal building and no sign part, including cut out letters, shall project more than six (6) inches from the building wall. (Ord. No. 10 -2005, § 1) 26.510.100. Nonconforming signs. Nonconforming signs which were in existence on or before May 25, 1988, shall be discontinued on or before November 25, 1988. (Ord. No. 10 -2005, § 1) 26.510.110. Signs on public right -of -way. A. It shall be unlawful to erect or maintain any sign in, on, over or above any land or right -of -way or on any property, including light posts, belonging to the City without the permission of the City Council or in compliance with Subsection 26.510.110.13, Policies regarding signage on public property. However, this Section shall not be deemed to apply to signs posted by any duly constituted public authorities in the performance of their public duties or to specific circumstances otherwise provided for in this Chapter. B. Policies regarding signage on public property. Purpose of regulations. The purpose of these regulations is to establish reasonable regulations for the posting of temporary signs, displays and banners on certain public property. The regulations herein include (a) signage on public rights -of -way, (b) banners and flags on light posts on Main Street, (c) signs in City parks, (d) displays in City parks, (e) signs hung across Main Street at Third Street and (f) signs on public buildings. These regulations shall be read in conjunction with this Chapter and are not intended to supersede the regulations of signs as set forth therein. Temporary signs and displays provide an important medium through which individuals may convey a variety of noncommercial and commercial messages. However, left completely unregulated, temporary signs and displays can become a threat to public safety as a traffic hazard and detrimental to property values and the City's overall public welfare as an aesthetic nuisance. These regulations are intended to supplement this Chapter and to assist City staff to implement the regulations adopted by the City Council. These regulations are adopted to: a. Balance the rights of individuals to convey their messages through temporary signs or displays and the right of the public to be protected against unrestricted proliferation of signs and displays; b. Further the objectives of this Chapter, Signs; and C. Ensure the fair and consistent enforcement of the sign and display regulations specified below. This Section, Signs on public right -of -ways, states: "it shall be unlawful to erect or maintain any sign in, on, over or above any land or right -of -way or on any property, including light posts, belonging to the City without the permission of the City Council." Sign permits issued by the City Manager or his or her designee, that are in conformance with these regulations shall constitute City Council permission within the meaning of this Section, Signs on public right -of -ways. Applications for sign permits that do not comply with these regulations shall be forwarded to the City Council for consideration if requested by the applicant. 2. Definitions. Unless otherwise indicated, the definitions of words used in these regulations shall be the same as the definitions used in this Chapter, Signs. In addition, the following definitions shall apply: Banner means any sign of lightweight fabric, plastic or similar material that is attached to any structure, pole, line or vehicle and possessing characters, letters, illustrations or ornamentations. Banner, light post means any sign of lightweight fabric, plastic or similar material that is attached to a light post and possessing characters, letters, illustrations or ornamentations which meets the dimensional requirements for and is intended to be installed on municipal light posts. Display means any symbol or object that does not meet the definition of a sign as defined in this Code, but like a sign is intended to convey a message to the public. Flag means any fabric or bunting containing distinctive colors, patterns or symbols, used as a symbol of a government, political subdivision or other entity which meets the dimensional requirements and is intended to be installed on municipal light posts. Public right -of -way means the entire area between property boundaries which is owned by a government, dedicated to the public use or impressed with an easement for public use; which is primarily used for pedestrian or vehicular travel; and which is publicly maintained, in whole or in part, for such use; and includes without limitation the street, gutter, curb, shoulder, sidewalk, sidewalk area, parking or parking strip, pedestrian malls and any public way. Sign means and includes the definition for sign as contained in Section 26.104.100, Definitions, of this Code. The term shall also include displays as that term is defined above. Sign, inflatable means any inflatable shape or figure designed or used to attract attention to a business event or location. Inflatable promotional devices shall be considered to be temporary signs under the terms of this Chapter and, where applicable, subject to the regulations thereof. 3. Signs on public rights -of -way. a. Purpose: The purpose of this policy is to regulate signs permitted to be located temporarily in the public right -of -way. Temporary signs shall be permitted in public rights -of -way to advertise noncommercial special events open to the general public provided the following policies and procedures are followed. These regulations do not apply to banners on the Main Street light posts or hanging across Main Street that are subject to different regulations and criteria. b. Size/Number/Material: Only two signs per event/organization shall be permitted. Signs shall not exceed ten square feet each and banners shall not exceed fifty square feet. Banners must be made of nylon, plastic or similar type material. Paper signs and banners are prohibited. c. Content: Signs authorized pursuant to this policy shall be limited to signs that advertise the name, date, time and location of a special event for noncommercial purposes. The City recognizes the success of special events often depends on commercial sponsorship. Therefore, the City shall allow signs that contain the name of the applicant and/or event, date, time, names and location of the event, as well as sponsorship names and logos; provided, however, that the total sponsorship information shall not be the most prominent information conveyed by the signs and shall take up no more the thirty percent (30 %) of the total area of the individual signs. d. Cost/Fees/Procedures: Applicants shall be required to pay the necessary fees for approval from the Special Events Committee. Any event not requiring review by the Special Events Committee shall submit a sign plan to the Community Development Department for review and approval for a fee as outlined in Chapter 2.12, Miscellaneous fee schedules, of this Code. Applications must be received a minimum of thirty days prior to the event. The applicant shall also submit a refundable security deposit as outlined in the current fee schedule to be applied to any damages, repairs or the cost of removal if not corrected/removed by the applicant within three days. e. Eligibility: Signs authorized pursuant to this policy shall be limited to a special campaign, drive, activity or event of a civic, philanthropic, educational or religious organization for noncommercial purposes. f. Duration: Temporary signs authorized pursuant to this Section shall be erected and maintained for a period not to exceed fourteen (14) days prior to the date of which the campaign, drive, activity or event advertised is scheduled to occur and shall be removed within three (3) days of the termination of such campaign, drive, activity or event. Small directional signs are permitted the day of the event only and must be removed immediately following said event. g. Maintenance: All signs and banners shall be maintained in an attractive manner, shall not impede vehicular or pedestrian traffic and shall not pose a safety risk to the public. h. Exceptions: Any exceptions from the above requirements shall require City Council review and approval. 4. Banners and flags on Main Street light posts. a. Purpose: Banners and flags hung from light posts on Main Street have traditionally been permitted to celebrate very special events of community interest. The purpose of these policies and regulations is to clarify which events may be celebrated and advertised through the use of banners or flags hung from the City -owned light posts on Main Street. 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. The United States, Colorado, Aspen and foreign country flags shall be permitted at the discretion of the City Manager, Mayor or City Council. b. Size /number /material: All proposed banners or flags should meet the City's specifications for size, mounting and material. Banners shall be two feet wide and four feet high (2'x 4') to be compatible with mounting system on the light posts. Banners and flags must be made of nylon, plastic or similar material. Paper is not allowed. c. Content: Banners shall only contain information identifying the event, the date and time or a simple graphic /logo related to the event. Any commercial advertising shall be minimized so that any commercial content is not the most prominent information conveyed on the banner or flag and shall be limited to no more than thirty percent (30 %) of the area of the sign. The City reserves the right to request changes to the design, color or content in order to assist the applicant to comply with this requirement. d. Cost/fees /procedures: The cost of installation is outlined in the current fee schedule set forth at Chapter 2.12, Miscellaneous fee schedules, of this Code. A refundable security deposit as outlined in the current fee schedule shall be required to assure replacement of damaged banners and retrieval of the banners from the City (see Section g below for maintenance requirements). The applicant shall be required to submit an application to the City Manager's office showing the dimensions, design and colors of the proposed banners or flags at least three (3) months prior to the event. Flags are required to be delivered to the City Parks Department one (1) week prior to the event. Banners shall be delivered to the Utility Department on Fridays at least two (2) weeks prior to their installation. e. Eligibility: Only applications for significant anniversaries as defined in Subparagraph 26.510.110.B.4.a of local nonprofit 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. f Duration: The display of banners and flags on the Main Street light posts shall not exceed fourteen (14) days or the duration of the event, whichever is less. g. Maintenance: Prior to the placement of banners or flags on City street light posts, the applicant shall provide to the City a number of replacement flags or banners to be determined by the City. These replacement flags or banners shall be used by the City to replace banners or flags that are stolen or damaged. The cost of replacing banners or flags shall be deducted from the security deposit. Once banners have been removed, the applicant shall be required to pick up the banners from the City within three (3) days. h. Priority: Banner and flag applications shall be handled on a first come, first serve basis. Applicants may be asked to alternate light posts with other organizations. The City reserves the right to prioritize City- sponsored events over other applications. i. Exceptions: Any exceptions from the above requirements shall require City Council review and approval. 5. Signs in City parks related to special events in the City Park. a. Purpose: Unattended signs are generally prohibited in City parks. Separate regulations apply to temporary unattended signs placed in Paepcke Park (See below for those regulations.) The purpose of this policy is to regulate unattended temporary signs that are permitted in limited circumstances in City parks. The City recognizes that unattended temporary signs may be a necessary element to many special events that are permitted in City parks in order to communicate general information to the public and advertise services, products and offerings as well as sponsorship of the special event. Accordingly, temporary unattended signs are permitted, subject to these policies, when the signs are connected to a special event at a City park for which a permit has been obtained from the City. Signs in City parks are typically temporary in nature and review occurs through the Special Events Committee. b. Size/Number /Material: Unattended temporary signs located in City parks shall be limited in size to three feet by six feet. The number of signs oriented towards the event venue shall be limited to two (2) signs per sponsor, and the number of signs oriented towards the rights -of- way shall be limited to five (5) which shall not extend more than ten (10) feet above grade. Banners must be made of nylon, plastic or similar material. Paper banners and flags are prohibited. The Special Events Committee may approve one (1) inflatable per event of no more than twenty (20) feet in height if a suitable on -site location can be provided and if there is a demonstrable community benefit. c. Content/location: The sign's content may include general information (i.e., dates, times, locations of activities) as well as advertisement of services, products, offerings and sponsorship up to thirty percent (30 %) of the area of the sign. Unattended temporary signs conveying a commercial message shall be set back at least ten (10) feet from the public right - of -way. d. Cost/Fees/Procedures: Applicants shall be required to pay the necessary fees for approval from the Special Events Committee. Any event not requiring review by the Special Events Committee shall submit a sign plan to the Community Development Department for review and approval for a fee as outlined in the current fee schedule. The applicant shall also submit a refundable security deposit as outlined in the current fee ordinance to be applied to any damages, repairs or the cost of removal if not corrected/removed by the applicant within three (3) days. The applicant shall receive the necessary approval prior to the installation of any signs. Applications must be received no later than thirty (30) days prior to the event. e. Eligibility: Unattended temporary signs may be located in City parks only for the following reasons: a special campaign, drive, activity or event for a civic, philanthropic, educational or religious organization for noncommercial purposes for which a special event permit has been obtained from the City. An exception to this regulation is six inch by thirty inch (6" x 30 ") directional signs for commercial organizations using City parks. f. Duration. Unattended temporary signs may be erected and maintained only for the duration of the event or forty-eight (48) hours, whichever is less. All signs must be removed immediately following the event. g. Maintenance: All signs must be maintained in an attractive manner, shall not impede vehicular or pedestrian traffic and shall not pose a safety risk to the public. A fifty dollar ($50.00) refundable security deposit will be required to insure compliance. h. Exceptions: The Special Events Committee may grant exceptions to the size and number regulations if deemed an appropriate location and/or event. Included in its evaluation, the Special Events Committee shall consider if there is a demonstrable community benefit to the event. The Special Events Committee, at its discretion, may send any requests for exceptions to Subsection 26.5 10.11 O.B.5 to City Council for review and approval. 6. Unattended Temporary Signs in Paepcke Park. a. Purpose: Unattended signs in public parks are prohibited with the exception to Paepcke Park. The purpose of this policy is to regulate the placement of unattended temporary signs in Paepcke Park that are civic, philanthropic, educational or religious in nature. b. Size/Number/Material: Applicants are limited to one (1) sign that shall comply with the City lighting and sign codes. The sign shall not exceed fifty (50) square feet in size. A total of four (4) signs shall be permitted in Paepcke Park at any single period of time, and applications will be handled on a first come, first serve basis. c. Content/Location: The content of the display and any signs may not be commercial in nature. The applicant shall work with the Parks Department to find an appropriate location so that there is minimal impact on the park. Displays may not be affixed on or near the gazebo and shall not obstruct the view of the gazebo from Main Street. d. Cost/Fees/Procedures: The applicant shall pay an application fee and a refundable security deposit as outlined in the current fee schedule to cover any damages caused by the installation, maintenance or removal of the sign. The applicant shall reimburse the Parks Department for any electric fees. An application shall be submitted to the Community Development Department for review by the City Manager or his/her designee. Applications shall be received no later than thirty (30) days prior to the proposed installation of the object. e. Eligibility: Civic, philanthropic, education or religious nonprofit organizations shall be eligible. The City reserves the right to deny any application for a sign that would interfere in City- sponsored activities in the park. f. Duration: Applicants are permitted to maintain their signs for no more then fourteen (14) days. g. Maintenance: All signs shall be maintained in an attractive manner, shall not impede vehicular or pedestrian traffic and shall not pose a safety risk to the public. The applicant must work with the City Parks Department regarding all maintenance issues. h. Exceptions: Any exceptions from the above requirements shall require City Council review and approval. 7. Signs across Main Street at Third Street. a. Purpose: The purpose of this policy is to regulate signs permitted to be located temporarily across the Main Street right -of -way at Third Street. Temporary signs shall be permitted in this location to advertise noncommercial special events open to the general public provided the following policies and procedures are followed. These regulations do not apply to banners on the Main Street light posts or signs other than those hanging across Main Street at Third Street. b. Size /number /material: Banners must consist of the following specifications: (1) Any type of durable material; (2) Semi circular wind holes in banner; (3) Metal rivets at all comers and every twenty four (24) inches along the top and bottom of the banner; (4) Size will be twelve (12) feet in length and three (3) feet in width. c. Content/Location. No commercial advertising will be allowed, except in cases where a sponsoring entity's name is part of the name of the event. In such cases, the organization promoting the event may not construct the banner such that sponsoring entity's commercial name is the most overwhelming aspect of the banner and the sponsor's name and logo shall be limited to no more than thirty percent (30 %) of area of the sign. Political advertising on or located in the public right -of -way on public property (even by a nonprofit organization) is prohibited per Subsection 26.510.120.C.2. d. Cost/Fees/Procedures. (1) A Main Street banner application and banner policy and procedure form must be obtained from the City Manager's office and completed by the party making the request and returned to the City Manager's office no less than 30 days prior to the date requested to hang the banner. (2) The exact legend of the banner must be indicated in writing (see specific area on application form). For your benefit, it is found that banners are most visually effective when kept simple: i.e., event, date organization and logo. (3) A fee of $50.00 per one -sided banner or one hundred dollars $100.00 per double -sided banner per week, must accompany the application form and be reviewed in the City Manager's office 30 days prior to the date the banner will be hung. All organizations will be charged the same rate, accordingly. (4) All banners should be delivered directly to the Electric Department, which is located in back of the Post Office at 219 Puppy Smith Road, by noon the Friday prior to the Monday hang date. Any banner not delivered by noon the prior Friday is subject to an additional fifty dollar ($50.00) charge. (5) Please pick up the banner from the Electric Department within 30 days after the display week(s). The City assumes no responsibility for banners, and any banners left more than 30 days may be discarded. e. Eligibility: The City provides space to hang four (4) single -sided banners and two (2) double -sided banners across Main Street with the intent of advertising community events, be it for arts organizations or nonprofits and/or not - for -profit organizations. These six (6) spaces are reserved on a first come, first serve basis. Reservations will be taken each year on November 1" for the following year. The first organization to have their contract negotiated, signed and paid will be offered the banner space on a first come, first serve basis. Duration: One (1) banner, per event, may be hung for a maximum of fourteen (14) days, as per Subsection 26.510.030.B.3. Banner approvals are not guaranteed and will only be hung upon availability of the Electric Department staff. The length of time that a banner is to be hung is not guaranteed and may be shortened at the discretion of the City. Based on his/her judgment as to the best interest of the City, the City Manager may determine which banners are to be given priority when there are multiple requests for the same time period. g. Maintenance: All banners shall be maintained in an attractive manner. h. Exceptions: Any exceptions from the above requirements shall require City Council review and approval. 8. Signs on public buildings. Signs on public buildings shall be prohibited. (Ord. No. 10 -2005, § 1) 26.510.120. Temporary signs. A. General. No temporary sign is permitted within the City unless all other signs on the property upon which the temporary sign is to be erected, placed or affixed and the temporary sign itself conforms to this Chapter. B. Residential uses and residential Zone Districts. For all residential uses and residential Zone Districts, only the following temporary signs are permitted, in addition to the signs permitted under Section 26.510.030, Procedure for sign permit approval and then only if accessory and incidental to a permitted or conditional use: 1. Real estate for sale or rent sign. Temporary real estate signs advertising the sale or rental of the property upon which the sign is located, subject to the following: a. Type. The temporary real estate for sale or rent sign shall be a freestanding or wall sign. b. Number. There shall be not more than one (1) temporary real estate for sale or rent sign per unit. c. Area. The area of the temporary sign shall not exceed three (3) square feet. d. Height. The height of the temporary sign shall not exceed five (5) feet as measured from the grade at the base of the sign. e. Special conditions. The temporary sign shall be removed within seven (7) days of the sale or rental of the real estate upon which the sign is located. 2. Temporary political signs. Temporary political signs announcing political candidates seeking public office, political parties or political and public issues shall be permitted. C. Nonresidential uses and nonresidential Zone Districts. For all nonresidential uses and nonresidential Zone Districts, only the following temporary signs are permitted, in addition to the signs permitted under Section 26.510.030, Procedure for sign permit approval and then only if accessory and incidental to a permitted or conditional use: Temporary sandwich board signs carried by a person. Temporary sandwich board signs which are carried by a person and are advertising or identifying a special, unique or limited activity, service, product or sale of a limited duration or identifying a restaurant menu, subject to the following: a. Type. The temporary sandwich board shall be a sign carried by a person. b. Number. There shall be not more than one (1) such temporary sign per use at any one time c. Area. The area of the temporary sign shall not exceed six (6) square feet per side 2. Temporary political signs. Temporary political signs announcing political candidates seeking public office, political parties or political and public issues shall be permitted. There shall be no temporary political signs permitted on or located in the public right -of -way or on public property except as permitted per Subsection 26.510.110.13, Policies regarding signage on public property. 3. Temporary sale signs. Temporary sale signs, announcing special sales of products and services, shall be subject to the following: a. Type. The temporary sale sign shall be placed in the window or windows of the business holding the sale. b. Number. There shall be permitted not more than one (1) temporary sale sign in any window and a total of not more than three (3) temporary sale signs for each use. c. Area. Each temporary sale sign shall not exceed three (3) square feet. d. Duration. Temporary sale signs may be maintained for a period not to exceed fourteen (14) days and shall be removed at the end of the fourteen (14) days or on the day following the end of the sale, whichever shall occur first and shall not be replaced for at least two (2) months following the removal of the sign(s). 4. Real estate for sale or rent sign. Temporary real estate signs advertising the sale or rental of the property upon which the sign is located, subject to the following: a. Type. The temporary real estate for sale or rent sign shall be a freestanding or wall sign. b. Number. There shall be not more than one (1) temporary real estate for sale or rent sign per unit. c. Area. The area of the temporary sign shall not exceed three (3) square feet. d. Height. The height of the temporary sign shall not exceed five (5) feet as measured from the grade at the base of the sign. e. Special conditions. The temporary sign shall be removed within seven (7) days of the sale or rental of the real estate upon which the sign is located. (Ord. No. 10 -2005, § 1) 26.510.130. Zone District sign restrictions. A. Residential uses. For all residential uses, only temporary signs permitted under Section 26.510.120, Temporary signs, and the following signs are permitted and then only if accessory and incidental to a permitted or conditional use: 1. Home occupation, multiple - family dwelling complex or mobile home park identification signs. a. Type. The home occupation, multiple- family dwelling complex or mobile home park identification signs shall be freestanding signs or wall signs. b. Number. There shall be not more than one (1) freestanding or wall sign per home occupation or per street entrance of a multiple - family dwelling complex or mobile home park. c. Area. The area of the sign shall not exceed two (2) square feet per dwelling unit and shall not exceed a total of twenty (20) square feet. d. Illumination. A home occupation identification sign may be illuminated only when it is identifying a home occupation of an emergency service nature. A multiple - family dwelling complex or mobile home park identification sign may be illuminated. All illumination must comply with Section 26.510.070, Sign illumination and Section 26.575.150, Outdoor lighting. B. Institutional uses. For all church, school and public administrative building uses, only temporary signs permitted under Section 26.510.120, Temporary signs, and the following signs are permitted and then only if necessary and incidental to a permitted or conditional use: 1. Church, school or public administrative building identification signs. a. Type. The church, school or public administrative building identification sign shall be a freestanding or wall sign. b. Number. There shall be not more than two (2) signs permitted along the lot frontage on any one (1) street, not to exceed a total of four (4) signs per lot, subject to the area requirements in Paragraph 26.510.130.B.I.c. c. Area. (1) Freestanding sign. The area of a freestanding sign shall not exceed ten (10) square feet (2) Wall sign. The area of a wall sign shall not exceed ten (10) square feet. (3) Aggregate sign area. The aggregate sign area permitted along the lot frontage on any one (1) street shall not exceed one (1) square foot of aggregate sign area for each three (3) feet of lot line frontage occupied by or projected from the building within which the principal use is conducted. The aggregate sign area permitted along the lot frontage on any alley shall be computed as if the alley were a street. In no case shall the aggregate sign area for any one (1) use on any one (1) frontage exceed twenty (20) square feet. (4) Illumination. The sign may be illuminated except when located in a residential Zone District. C Recreation club or open use recreation site uses. For all recreation club or open use recreation site uses, only temporary signs permitted under Section 26.510.120 and the following signs are permitted and then only if necessary and incidental to a permitted or conditional use: 1. Recreation club or open use recreation site designation signs. a. Type. The recreation club or open use recreation site designation sign shall be a freestanding or wall sign. b. Number. There shall be not more than one (1) sign per use permitted along the lot frontage on any one (1) street, not to exceed a total of two (2) signs per lot, subject to the area requirements in Subparagraph 26.510.130.C.1.c. c. Area. (1) Freestanding sign. The area of a freestanding sign shall not exceed ten (10) square feet (2) Wall sign. The area of a wall sign shall not exceed ten (10) square feet. (3) Aggregate sign area. The aggregate sign area permitted along the lot frontage on any one (1) street shall not exceed one (1) square foot of aggregate sign area for each three (3) feet of lot line frontage occupied by or projected from the area of the lot within which the principal use is conducted. The aggregate sign area permitted along the lot frontage on any alley shall be computed as if the alley were a street. In no case shall the aggregate sign area for any one (1) frontage exceed twenty (20) square feet. (4) Illumination. The sign may be illuminated only during hours of normal operation and the illumination must comply with Section 26.575.150, Outdoor lighting. D. Commercial uses. For all Commercial Core (CC), Commercial (C -1), Lodge /Tourist Residential (L/TR), Lodge Preservation (LP), Commercial Lodge (CL), Neighborhood Commercial (NC), Mixed Use (MU) or Service/ Commercial/industrial (SCI) Zone District uses, only temporary signs permitted under Section 26.510.120, Temporary signs, and the following signs are permitted and then only if accessory and incidental to a permitted or conditional use: 1. Business or occupancy identification signs. a. Type. The business and occupancy identification signs shall be freestanding signs, projecting signs, wall signs, including cut out letter signs or lettering on awnings. b. Number. There shall be not more than a combination of two (2) of the following three (3) types of signs: freestanding signs, projecting signs or wall signs, including a cut out letter sign subject to the area requirements in Subparagraph 26.510.130.D.1.c. In addition, there shall be no limit on the number of business and occupancy identification signs which may be placed in the windows of the business; provided that said signs shall count against the aggregate sign area permitted as if the window sign was a cut out letter sign. There shall also be no limit on the number of awnings which may be lettered; provided that said signs shall count against the aggregate sign area permitted as if the window sign was a cut out letter sign. c. Area. (1) Freestanding sign. The area of a freestanding sign shall not exceed ten (10) square feet. (2) Projecting sign. The area of a projecting sign shall not exceed six (6) square feet. (3) Wall sign. The area of a wall sign shall not exceed ten (10) square feet. (4) Awning sign. The area of an awning sign shall not be limited, but the lettering on the awning shall not exceed six (6) inches in height. (5) Aggregate sign area. The aggregate sign area permitted along the lot frontage on any one (1) street shall not exceed one (1) square foot of aggregate sign area for each three (3) feet of lot line frontage occupied by or projected from the building within which the principal use is conducted. The aggregate sign area permitted along the lot frontage on any alley shall be computed as if the alley were a street. If there is more than one (1) use or tenant within the principal building, then the aggregate sign area permitted for each use or tenant within the building shall be that portion of the aggregate sign area as agreed upon by the owners and occupants of the building. The Community Development Director shall be notified of such agreement and the respective proportionate shares of signage. In no case shall the aggregate sign area for any one (1) use on any one (1) frontage exceed twenty (20) square feet. d. Location. The business and occupancy identification signs shall be located on the business being identified, unless the business does not have frontage at street grade. For such businesses, one (1) sign may be located on the business being identified and the other sign may be included in a business directory sign. e. Portable and sandwich board signs. Portable and sandwich board signs shall be permitted in the Commercial Core (CC) and Commercial (C -1) Zone Districts. Portable and sandwich board signs are limited to retail and restaurant uses. Portable and sandwich board signs are prohibited for office uses. (1) Portable sandwich board signs are limited to nine (9) square feet in size and shall not count in the aggregate sign area. (2) Businesses are limited to one (1) sandwich board or portable sign per business. (3) Portable sandwich board signs must be made primarily of wood or metal and must have a professional finish. (4) Insets must be chalkboard. Dry erase boards are prohibited. (5) A six (6) foot travel width must be maintained on sidewalks and an eight (S) foot travel width on the pedestrian malls. (6) Sandwich board and portable signs are not permitted on rights -of -way or pedestrian malls overnight. (7) A separate sandwich board sign permit must be approved by the Zoning Officer and shall meet the following requirements: a. The Zoning Officer shall take into consideration safety issues with regards to the placement of the sign. b. The sign shall have a professional finish and be consistent with the community character. c. Permits for sandwich board signs shall be revocable by the Zoning Officer if the above criteria are not met or, in the opinion of the Zoning Officer, the sign creates a visual nuisance. (S) Unless readopted by City Council on or before April 11, 2005, the provisions of Section 26.510.130, Procedure for sign permit approval and its Subsections (D)(5)(3) shall be null and void. 2. Business directory signs. a. Type. The business directory signs shall be wall signs or freestanding signs. b. Number. There shall be not more than one (1) business directory sign per lot. c. Area. The maximum permitted area of the business directory sign shall be as follows: • For 1 to 5 businesses - - One square foot of sign area per business • For 6 to 10 businesses- -Five square feet plus ' / 2 square foot for each business over five businesses. • For more than 10 businesses- -7 1/2 square feet, plus '/4 square foot for each business over ten businesses, to a maximum sign area of 10 square feet. (Ord. No. 10 -2005, § 1) 26.510.140. Window displays. Window displays of merchandise and representations thereof are not subject to sign regulations, sign square footage and do not require a sign permit, except the following are prohibited in window displays: 1. Televisions, computer monitors or other similar technological devices that create oscillating light. 2. Neon or other gas tube illumination, rope lighting or low - voltage strip lighting. (Ord. No. 10 -2005, § 1) EX1410IT B ORDINANCE N0. 1 (SERIES OF 2010) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AMENDMENTS TO THE FOLLOWING SECTION OF THE CITY OF ASPEN LAND USE CODE: 26.510 WHEREAS, the Community Development Director of the City of Aspen initiated an application proposing amendments to the Land Use Code, pursuant to Chapter 26.210; and, WHEREAS, the amendments requested relate to Section 26.510, Sign Code, of the Land Use Code of the Aspen Municipal Code; and, WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the Municipal Code shall be reviewed and recommended for approval, approval with conditions, or denial by the Community Development Director and then by the Planning and Zoning Commission at a public hearing. Final action shall be by City Council after reviewing and considering these recommendations; and, WHEREAS, the Director recommended approval of amendments to the above listed Sections as further described herein; and, WHEREAS, the Planning and Zoning Commission held a duly noticed public hearing to consider the proposed amendments described herein on May 4, 2010, took and considered public testimony and the recommendation of the Director and recommended, by a 6 - 0 vote, City Council adopt the proposed amendments. WHEREAS, during a duly noticed public hearing on August 23, 2010, the City Council took public testimony, considered pertinent recommendations from the Community Development Director, referral agencies, Planning and Zoning Commission, and considered the development proposal under the applicable provisions of the Municipal Code as identified herein; 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, WHEREAS, the City Council finds that this ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1• City of Aspen City Council Ordinance No. _, Series of 2010 Page 1 Pursuant to Section 26.310 of the Municipal Code, the City of Aspen City Council hereby approves the amendments to Section 26.470.060.7, Temporary Outdoor Food Vending, which section defines, describes, authorizes, and regulates the process for establishing a food vending cart within the City of Aspen to read as follows: Chapter 26.510 SIGNS Sec. 26.510.010 Purpose Sec. 26.510.020 Applicability and scope Sec. 26.510.030 Procedure for sign permit approval Sec. 26.510.040 Prohibited signs Sec. 26.510.050 Sign measurement and allotment Sec. 26.510.060 Sign setback Sec. 26.510.070 Sign illumination Sec. 26.510.080 Sign lettering, logos and graphic designs Sec. 26.510.090 Sign types and structural characteristics Sec. 26.510.100 Zone District sign restrictions Sec. 26.510.110 Window displays 26.510.010. Purpose. The purpose of this Chapter is to promote the public health, safety and welfare through a comprehensive system of reasonable, effective, consistent, content - neutral and nondiscriminatory sign standards and requirements. Toward this end, the City Council finds that the City is an historic mountain resort community that has traditionally depended on a tourist economy. Tourists, in part, are attracted to the visual quality and character of the City. Signage has a significant impact on the visual character and quality of the City. The proliferation of signs in the City would result in visual blight and unattractiveness and would convey an image that is inconsistent with a high quality resort environment. Effective sign control has preserved and enhanced the visual character of other resort communities in Colorado and other states. The City must compete with many other Colorado, national and international resort communities for tourism opportunities. In order to preserve the City as a desirable community in which to live, vacation and conduct business, a pleasing, visually attractive environment is of foremost importance. These sign regulations are intended to: A. Preserve and maintain the City as a pleasing, visually attractive environment. B. Promote and accomplish the goals, policies and objectives of the Aspen Area Comprehensive Plan. City of Aspen City Council Ordinance No. _, Series of 2010 Page 2 C. Enhance the attractiveness and economic well -being of the City as a place to live, vacation and conduct business. D. Address community needs relating to upgrading the quality of the tourist experience, preserving the unique natural environment, preserving and enhancing the high quality human existence, retaining the City's premier status in an increasingly competitive resort market, preserving the historically and architecturally unique character of the City, fostering the "village style" quality of the City and preserving and enhancing scenic views. E. Enable the identification of places of residence and business. F. Allow for the communication of information necessary for the conduct of commerce. G. Encourage signs that are appropriate to the zone district in which they are located and consistent with the category of use to which they pertain. H. Permit signs that are compatible with their surroundings and aid orientation and preclude placement in a manner that conceals or obstructs adjacent land uses or signs. I. Preclude signs from conflicting with the principal permitted use of the site or adjoining sites. J. Curtail the size and number of signs and sign messages to the minimum reasonably necessary to identify a residential or business location and the nature of any such business. K. Protect the public from the dangers of unsafe signs and require signs to be constructed, installed and maintained in a safe and satisfactory manner. L. Lessen hazardous situations, confusion and visual clutter caused by proliferation, improper placement, illumination, animation and excessive height, area and bulk of signs which compete for the attention of pedestrian and vehicular traffic. M. Regulate signs in a manner so as to not interfere with, obstruct vision of or distract motorists, bicyclists or pedestrians. (Ord. No. 10 -2005, § 1) 26.510.020. Applicability and scope. This Chapter shall apply to all signs of whatever nature and wherever located within the City except for the Aspen Highlands Village PUD. Sign regulations for Aspen Highlands Village PUD were approved as City Council Ordinance 43, Series of 2003. No sign shall be allowed except as permitted by this Chapter. (Ord. No. 10 -2005, § 1) 26.510.030. Procedure for sign permit approval. A. Permit required It shall be unlawful to erect, place, construct, reconstruct or relocate any sign without first obtaining a sign permit from the Chief Building Official. Ordinary preventive maintenance including repainting of a lawfully existing sign, which does not involve a change of placement, size, lighting, color or height is exempt from having to obtain a permit. B. Signs not requiring a permit The following signs or sign activities shall be exempt from obtaining a sign permit. Exemptions shall not be construed as relieving the applicant and owner City of Aspen City Council Ordinance No. _, Series of 2010 Page 3 of the sign from the responsibility of complying with all applicable provisions of this Title. The exemption shall apply to the requirement for a sign permit under this Section. Banners pennants streamers and balloons and other gas -filled figures Temporary banners, pennants, streamers, balloons and inflatables shall be permitted per Land Use Code Section Policies regarding signage on public property. Non- permanent Streamers, pennants, and balloons shall be permitted in association with a retail special event or sale of limited duration. 2. Construction signs One (1) freestanding or wall sign along each lot line frontage on a street for a site under construction not to exceed a total of two (2) signs per site, which do not exceed six (6) square feet in area per sign, which are not illuminated and which identify individuals or companies involved in designing, constructing, financing or developing a site under construction. Such signs may be erected and maintained only for a period not to exceed thirty (30) days prior to commencement of construction and shall be removed within fourteen (14) days of termination of construction. A graphic design painted on a construction barricade shall be permitted in addition to such signs, provided it does not identify or advertise a person, product, service or business. 3. Designated public posting signs - Signs such as concert announcements, special event notifications, and grand openings can be placed on designated public posting areas such as the ACRA kiosk adjacent to the pedestrian mall. 4. Directional, instructional, or courtesy signs Signs, not exceeding one and one quarter (1.25) square feet in area, which provide direction or instruction to guide persons to facilities intended to serve the public as required by law or necessity. Such signs include those identifying restrooms, public telephones, public walkways, public entrances, freight entrances, accessibility routes, restrictions on smoking or solicitation, delivery or freight entrances, affiliation with motor clubs, acceptance of designated credit cards and other similar signs providing direction or instruction to persons using a facility including courtesy information such as "vacancy," "no vacancy," "open," "closed," and the like. Advertising material of any kind is strictly prohibited on directional, instructional, or courtesy signs. 5. Fine art Works of fine art which in no way identify or advertise a person, product, service or business. 6. Flags Flags, emblems and insignia of political or religious organizations providing such flags, emblems and insignia are displayed for noncommercial purposes. 7. Garage, estate, yard sale or auction signs On -site or off -site signs which advertise a private garage, estate, yard sale or auction provided such signs are displayed no more than twice per year per residence for a period not to exceed three days. Sign must be removed at the conclusion of the event. 8. Government signs Signs placed or erected by governmental agencies or nonprofit civic associations for a public purpose in the public interest, for control of traffic and for other regulatory or informational purposes, street signs, official messages, warning signs, railroad crossing signs, signs of public service companies indicating danger, or aids to service and safety which are erected by or for the order of government. City of Aspen City Council Ordinance No. Series of 2010 Page 4 9. Historic designation 2 Signs placed on or in front of a historic building or site identifying and providing information about a property listed on the Aspen Inventory of Historic Landmark Sites and Structures or the National Register of Historic Sites, which sign shall not exceed six (6) square feet in area, as approved by the Historic Preservation Officer. 10. Holiday decorations Noncommercial signs or other materials temporarily displayed on traditionally accepted civic, patriotic and/or religious holidays, provided that such decorations are maintained in safe condition, do not constitute a fire hazard and that the decorations comply with Section 26.575.150, Outdoor lighting. 11. Incidental signs on vehicles Signs placed on or affixed to vehicles or trailers where the sign is incidental to the primary use of the vehicle or trailer. This is in no way intended to permit signs placed on or affixed to vehicles or trailers which are parked on a public right -of -way, public property or private property so as to be visible from a public right - of -way where the apparent purpose is to advertise a product, service or activity or direct people to a business or activity located on the same or nearby property. 12. Interior signs Signs which are fully located within the interior of any building or within an enclosed lobby or court of any building, which are not visible from the public right - of -way, adjacent lots or areas outside the building. 13. Memorial signs Memorial plaques or tablets, grave markers, statuary declaring names of buildings and date of erection when cut into any masonry surface or when constructed of bronze or other incombustible materials or other remembrances of persons or events that are noncommercial in nature. 14. Menu signs boxes An exterior surface mounted or pole mounted sign box which advertises and/or identifies a restaurant menu, drinks or foods offered or special activities incidental to drink and food. One (1) sign per use, with an area not to exceed four (4) square feet, with a height not to exceed the eave lines or parapet wall of that portion of the principal building in which the use to which the sign applies is located, and which is located on or in front of the building within which the restaurant is located. 15. Movie theater and performance venue signs Signs not to exceed thirty inches by forty- two inches (30" x 42 "), located within the inner or outer lobby, court or entrance, window display, or interior or exterior poster box of a theatre or performance venue. These signs are limited to conveying information regarding movie, theater, music, or other similar artistic performances or events and shall not be used for unrelated commercial content. Variable message displays, televisions, or other forms of digital marquees which may be incidentally visible from the exterior may be used. Only one variable message display, television, or similar digital marquee may be designed to be visible exclusively from the exterior provided it is limited to a thirty-two (32) inch or smaller screen and shall not contain commercial content unrelated to the advertised events and provided that it is not mounted on the exterior of the building. 16. Political Signs Political signs announcing political candidates seeking public office, political parties or political and public issues shall be permitted provided: a. The total area of all such signs on a lot does not exceed eight (8) square feet. City of Aspen City Council Ordinance No. _, Series of 2010 Page 5 b. All such sign may be erected no sooner than sixty (60) days in advance of the election for which they were made. c. All such signs shall be removed no later than seven (7) days after the election for which they were made. d. Political signs may not be placed on public property, rights -of -way adjacent to public property, or within the State Highway 82 traffic way including the round - a -bout and traffic islands. Political signs carried or wom by a person are exempt from these limitations. 17. Property management signs A building may have one sign with an area not exceeding one (1) square foot identifying the name and phone number of a contact person or management entity for the property. Multi- Family buildings may have up to one (1) sign per ten (10) residential units. 18. Public notices Official government notices and legal notices. 19. Practical purpose signs Practical signs erected on private property, such as lost property signs, cautionary or "beware" signs, wedding announcements, graduation celebrations, and other signs announcing a special events or functions which do not exceed two (2) square feet and limited to one (1) per building fagade or property frontage, as applicable. 20. Real estate for sale or rent sign Real estate signs advertising the sale or rental of the property upon which the sign is located, provided: a. Type A real estate for sale or rent sign shall be a freestanding or wall sign. b. Number There shall not be more than one (1) real estate for sale or rent sign per unit. c. Area. The area of the temporary sign shall not exceed three (3) square feet. d. Height. The height of the temporary sign shall not exceed five (5) feet as measured from the grade at the base of the sign. e. Duration The temporary sign may be used as long as the property is actively for sale or rent but must be removed within seven (7) days of the sale or rental of the real estate upon which the sign is located f. Location - Real estate for sale or rent signs must be placed on private property and not located on public property or within the public right -of -way. 21. Regulatory signs Regulatory signs erected on private property, such as "no trespassing," which do not exceed two (2) square feet and limited to one (1) per building fagade or property frontage, as applicable. 22. Religious symbols Religious symbols located on a building or property used for organized religious services. 23. Residential name and address signs Detached residential dwelling units, duplex units, and multi - family residential dwelling units may have wall or freestanding signs on or in front of the building or portion thereof to identify the street address and/or names of the occupants or name of the dwelling unit. The area of the sign is not to exceed two (2) City of Aspen City Council Ordinance No. _, Series of 2010 Page 6 square feet per dwelling unit. If the sign is for a multi - family residential complex, the total size of all signs shall not exceed twenty (20) square feet. 24. Street addresses on mailboxes 25. Sandwich board signs carried by a person Temporary sandwich board signs which are carried by a person and are advertising or identifying a special, unique or limited activity, service, product or sale of a limited duration or identifying a restaurant menu. There shall not be more than one (1) such temporary sign per use at any one time. Sign must not exceed six (6) square feet per side. 26. Security signs Every parcel may display security signs not to exceed an area of six inches wide by six inches long (6" x 6 "). Security signs may contain a message, logo or symbol alerting the public to the presence of a security system on the premises. Security signs shall be of a neutral color. Security signs may not be placed in the City right -of- way. 27. Timeshare identification signs A building that is approved for exempt timesharing, pursuant to Section 26.590.030, Exempt timesharing, may have a wall - mounted sign with an area not exceeding two (2) square feet, stating that it has been approved for timesharing and identifying the name and phone number of a contact person or management entity for the property. 28. Temporary food vending signs The food vending permit must include details of the intended signage including size, material and location. 29. Temporary sale signs Temporary sale signs, announcing special sales of products and services, shall be subject to the following: a. Type. The temporary sale sign shall be placed in the window or windows of the business holding the sale. b. Number. There shall be permitted not more than one (1) temporary sale sign in any window and a total of not more than three (3) temporary sale signs for each use. c. Area. Each temporary sale sign shall not exceed three (3) square feet. d. Duration. Temporary sale signs may be maintained for a period not to exceed fourteen (14) days and shall be removed at the end of the fourteen (14) days or on the day following the end of the sale, whichever shall occur first and shall not be replaced for at least two (2) months following the removal of the sign(s). 30. Vending machine signs Permanent, potentially internally illuminated but non - flashing signs on vending machines, gasoline pumps, ice or milk containers or other similar machines indicating only the contents of such devices, the pricing of the contents contained within, directional or instructional information as to use and other similar information. Vending machine signs that are internally illuminated must be located inside of a building or in a space that is not visible from the public right -of -way. C. Application. A development application for a sign permit shall include the following information: City of Aspen City Council Ordinance No. Series of 2010 Page 7 I . That information required on the form provided by the Community Development Director; 2. A letter of consent from the owner of the building; 3. Proposed location of the sign on the building or parcel; 4. The dimensions, measurements and calculations of building frontages and line frontages on streets and alleys; the dimensions of any other sign located on the property and any other information needed to calculate permitted sign area, height, type, placement or other requirements of these regulations. D. Determination of completeness. After a development application for a sign permit has been received, the Community Development Director shall determine whether the application is complete. If the Community Development Director determines that the application is not complete, written notice shall be served on the applicant specifying the deficiencies. The Community Development Director shall take no further action on the application unless the deficiencies are remedied. If the application is determined complete, the Community Development Director shall notify the applicant of its completeness. A determination of completeness shall not constitute a determination of compliance with the substantive requirements of this Chapter. E. Determination of compliance. After reviewing the application and determining its compliance and consistency with the purposes, requirements and standards in this Chapter, the Community Development Director shall approve, approve with conditions or deny the development application for a sign permit. (Ord. No. 10 -2005, § 1) 26.510.040. Prohibited signs. The following signs are expressly prohibited for erection, construction, repair, alteration, relocation or placement in the City. A. "A" frame, sandwich board and sidewalk or curb signs except as allowed per the table under Sec. 26.510.100(D) . B. Permanent Banners and pennants used for commercial purposes not associated with a special event approved by the Special Events Committee approval per Subsection 26.5I0.030.B, C. Billboards and other off-premise signs. Billboards and other off - premise signs, including security company signs which do not comply with the regulations set forth in this Title and signs on benches, are prohibited, except as a temporary sign as provided for in Section 26.510.030(B), Signs Not Requiring a Permit. D. Flashing signs. Signs with lights or illuminations which flash, move, rotate, scintillate, blink, flicker, vary in intensity, vary in color or use intermittent electrical pulsations except as permitted per Section 26.575.150, Outdoor lighting. E. Moving signs. Signs with visible moving, revolving, rotating parts or visible mechanical movement of any description or other apparent visible movement achieved by electrical, electronic or mechanical means, including automatic electronically controlled copy changes. City of Aspen City Council Ordinance No. , Series of 2010 Page 8 F. Neon and other gas -filled light tubes. Neon lights information and other gas - filled light tubes, except when such a manner as to not be directly exposed to public view. , televisions used for advertising or used for indirect illumination and in G. Obsolete signs. A sign which identifies or advertises an activity, business, product, service or special event no longer produced, conducted, performed or sold on the premises upon which such sign is located. Such obsolete signs are hereby declared a nuisance and shall be taken down by the owner, agent or person having the beneficial use of such sign within ten (10) days after written notification from the Community Development Director and upon failure to comply with such notice within the time specified in such order, the Community Development Director is hereby authorized to cause removal of such sign and any expense incident thereto shall be paid by the owner of the property on which the sign was located. That an obsolete sign is nonconforming shall not modify any of the requirements of this Subsection. Signs of historical character shall not be subject to the provisions of this Section. For the purpose of this Section, historical signs are defined to be those signs at least fifty (50) years in age or older. H. Portable and wheeled signs except as allowed per the table under Sec. 26.510.100(D} L Roof signs. J. Search lights or beacons except as approved per Subsection 26.575.150.H, Outdoor lighting, Exemptions. K. Signs causing direct glare. A sign or illumination that causes any direct glare into or upon any public right -of -way, adjacent lot or building other than the building to which the sign may be accessory. L. Signs containing untruthful or misleading information. M. Signs creating optical illusion. Signs with optical illusion of movement by means of a design which presents a pattern capable of reversible perspective, giving the illusion of motion or changing of copy. N. Signs obstructing egress. A sign which obstructs any window or door opening used as a means of ingress or egress, prevents free passage from one part of a roof to any other part, interferes with an opening required for ventilation or is attached to or obstructs any standpipe, fire escape or fire hydrant. O. Signs on parked vehicles. Signs placed on or affixed to vehicles and/or trailers which are parked on a public right -of -way, public property or private property so as to be visible from a public right -of -way where the apparent purpose is to advertise a product, service or activity or direct people to a business or activity located on the same or nearby property. However, this is not in any way intended to prohibit signs placed on or affixed to vehicles and trailers, such as lettering on motor vehicles, where the sign is incidental to the primary use of the vehicle or trailer. A Signs in public right -of way. A sign in, on, or above a public right -of -way that in any way interferes with normal or emergency use of that right -of -way. Any sign allowed in a public right - of -way may be ordered removed by the Community Development Director upon notice if the normal or emergency use of that right -of -way is changed to require its removal. City of Aspen City Council Ordinance No. Series of 2010 Page 9 Q. Street blimps. Parked or traveling cars used primarily for advertising, sometimes referred to as "street blimps," are prohibited. Vehicle signage incidental to the vehicle's primary use is exempt. R. Strings of light and strip lighting. Strip lighting outlining commercial structures and used to attract attention for commercial purposes and strings of light bulbs used in any connection with commercial premises unless the lights shall be shielded and comply with Section 26.575.150, Outdoor lighting. S. Unsafe signs. Any sign which: 1. Is structurally unsafe; 2. Constitutes a hazard to safety or health by reason of inadequate maintenance or dilapidation; 3. Is not kept in good repair; 4. Is capable of causing electrical shocks to persons likely to come into contact with it; 5. In any other way obstructs the view of, may be confused with or purports to be an official traffic sign, signal or device or any other official government regulatory or informational sign; 6. Uses any words, phrases, symbols or characters implying the existence of danger or the need for stopping or maneuvering of a motor vehicle or creates, in any other way, an unsafe distraction for vehicle operators or pedestrians; 7. Obstructs the view of vehicle operators or pedestrians entering a public roadway from any parking area, service drive, public driveway, alley or other thoroughfare; 8. Is located on trees, rocks, light poles or utility poles, except where required by law; or 9. Is located so as to conflict with the clear and open view of devices placed by a public agency for controlling traffic or which obstructs a motorist's clear view of an intersecting road, alley or major driveway. 26.510.050. Sign measurement, location and allotment A. General. In calculating the area allowance for signs in all Zone Districts, there shall be taken into account all signs allowed therein including window decals and signs identifying distinctive features and regional or national indications of approval of facilities. See Section 26.510.050.C, Sign Area for the method or measuring signs. B. Two or more faces. Where a sign has two or more faces, the area of all faces shall be included in determining the area of the sign, except where two such faces are placed back to back and are at no point more than two feet from one another. The area of the sign shall be taken as the area of the face if the two faces are of equal area or as the area of the larger face if the two faces are of unequal area. (Ord. No. 10 -2005, § 1) C. Sign area. Sign area shall be the area of the smallest four -sided or circular geometric figure which encompasses the facing of a sign including copy, insignia, background and borders, City of Aspen City Council Ordinance No. _, Series of 2010 Page 10 provided that cut -out letter signs shall be considered wall signs and there aggregate area shall be credited toward allowable sign area at one -half (1/2) the measured area. (Window) S o7.e of T hOM Sogn Figure 1: Above: Window sign with cutout letters. (8' x 1') *.5 = 4 sq. ft. total Below: Window sign with solid backing. 2'x 10'= 20 sq. ft. total Bottom: Sign with irregular shape, 2' x 3' = 6 sq. ft. total O O M 5 i z e a f T H s Si O 0 10' 2' 3' City of Aspen City Council Ordinance No. _, Series of 2010 Page 11 D. Sign location and placement. When possible, signs should be located at the same height on buildings with the same block face. Architectural features should not be hidden by sign location. Signs should be consistent with the color, scale, and design of the building and not overpower facades. Desired Style n Figure 3 Sign not covering architectural feature Signs located Sign in at same proportion to height building Window signs not exceeding 25% of window Undesirable Style 1 Figure 4 �— Sign covering architectural feature No consistency in sign height Sign not proportional to building Window signs far more than 25% of window E. Sign Allotment per business a) Residential uses shall be allotted six (6) square feet of signage per individual business frontage. City of Aspen City Council Ordinance No. _, Series of 2010 Page 12 b) Arts, cultural, civic, and academic uses shall be allotted six (6) square feet of signage per individual business frontage c) Recreational uses shall be allotted six (6) square feet of signage per individual business frontage d) Restaurant and Retail uses shall be allotted six (6) square feet of signage per individual business frontage. e) Lodge uses shall be eligible for ten (10) square feet of signage allotment per individual frontage. f) Office and Service uses shall be allotted six (6) square feet of signage per individual business frontage. In buildings with three (3) or more tenants with an Office or Service Use, the allotment shall be reduced to three (3) square feet of signage per individual business frontage. These buildings with three (3) or more tenants may create a business directory sign of no more than six (6) square feet that grants each tenant no more than two (2) square feet for the purposes of business identification. The business directory sign shall not count towards the signage allotment for the individual tenants. g) Buildings that contain one (1) tenant and occupy half a block or more shall be granted twenty (20) square feet of signage per applicable frontage. The limitations for individual sign size shall match that of Lodge use signs. Businesses that share occupancy of a single tenant space within a portion of a building shall share the sign allotment. If businesses share occupancy, but there is a clear and definable separation between uses, than each business shall have its own signage allotment. Businesses with articulating facades along one elevation shall combine such facades to receive one signage allotment. 26.510.060. Sign setback. Signs are not subject to the setback requirements of the Zone District where they are located. (Ord. No. 9 -2002, § 12; Ord. No. 10 -2005, § 1) 26.510.070. Sign illumination. A. Allowed Illumination. Illumination of signs shall be designed, located, shielded and directed in such a manner that the light source is fixed and is not directly visible from and does not cast glare or direct light from artificial illumination upon any adjacent public right -of -way, surrounding property, residential property or motorist's vision. Illumination shall comply with Section 26.575.150, Outdoor lighting. B. Prohibited illumination. No sign shall be illuminated through the use of internal illumination, rear illumination (including cut -out letter signs with lighting attached behind the letters), fluorescent illumination or neon or other gas tube illumination, except when used for indirect illumination and in such a manner as to not be directly exposed to public view. City of Aspen City Council Ordinance No. Series of 2010 Page 13 26.510.080. Sign lettering, logos and graphic designs. A. Lettering. No lettering on any sign, including cut out letter signs, shall exceed twelve (12) inches in height, except that the initial letter in each word shall not exceed eighteen (18) inches in height. B. Logos. No logo on any sign, including cut out letter signs, shall exceed eighteen inches in height and eighteen inches in length (18" x 18 "). (Ord. No. 9 -2002, § 12; Ord. No. 10 -2005, § 1) 26.510.090. Sign types and characteristics A. Freestanding signs. Freestanding signs shall not be higher than the principal building or fifteen (15) feet, whichever is less and shall be a minimum of eight (8) feet above grade when located adjacent to a pedestrian way. B. Identification signs. Signs intended to identify the name of a subdivision, multi - family residential complex, mobile home park, or business name. Identification signs shall be visible from the public right -of -way or private street. B. Projecting or hanging signs. Projecting and hanging signs shall not be higher than the eave line or parapet wall of the top of the principal building, shall be a minimum of eight (8) feet above grade when located adjacent to or projecting over a pedestrian way and shall not extend more than four (4) feet from the building wall to which they are attached, except where such sign is an integral part of an approved canopy or awning. Projecting or hanging signs shall be made primarily out of wood or metal. C. Wall signs. Wall signs shall not be higher than the eave line or parapet wall of the top of the principal building and no sign part, including cut out letters, shall project more than six (6) inches from the building wall. Wall signs shall be made primarily out of wood or metal. (Ord. No. 10 -2005, § 1) D. Awning Signs. No sign placed on an awning may project above, below, or off of an awning. Awning signs may only be placed on awnings that meet the definition for Awning in Section 26.104.100, Definitions. An awning shall consist of a single color, or a vertical or horizontal bicolor striped pattern. E. Monument Signs. A sign which has a bottom that is permanently affixed to the ground, not a building, shall be considered a monument sign. The size and design shall meet the use requirements for that type of sign. The sign face must be directly connected to the base of the sign. Landscaping shall be provided so that the sign transitions into the ground naturally. City of Aspen City Council Ordinance No. _, Series of 2010 Page 14 Figure 5: Projecting Sign F. Portable Sandwich Board Signs. Sandwich board signs are two -sided self - supported a- frame signs, or any other two -sided portable sign. Sandwich board signs must be made primarily of wood or metal and must have a professional finish. Incorporated inserts must be made out of chalkboard. Dry erase boards are prohibited. Sandwich board signs shall not be utilized as merchandise displays. A six (6) foot travel width must be maintained on sidewalks and an eight (8) foot travel width on the pedestrian malls. This does not allow for signs aligned on edge with one another, thus creating a solid line of sandwich board signs. Portable sandwich board signs are not to be left out overnight. The sandwich board sign shall not count towards the sign allotment. Permits for sandwich board signs shall be revocable by the Zoning Officer if the above criteria are not met or, or if in the opinion of the Zoning Enforcement Officer, the sign creates a visual nuisance. Sandwich board signs must also comply with those requirements found within Section 26.510.090.D. Sec. 26.510.100 Zone District sign restrictions A. Residential uses. For all residential uses, only signs permitted under Section 26.510.030.13, Signs Not Requiring a Permit, and the following signs are permitted and then only if accessory and incidental to a permitted or conditional use: Type of Sign Number of Maximum Area Maximum Height of Comments Signs (Sq. Ft.) Freestanding Signs Identification 1 per multi- 10 5 Direct illumination Sign (wall, family complex, only, fixtures must be freestanding or subdivision shielded and in monument entrance, or compliance with this sign *) mobile home Chapter and park 26.575.150 Bed and 1 per street 4 per sign 6' Illumination permitted, Breakfast frontage must be in compliance with this Chapter and 26.575.150 Home 1 per street 4 per sign 6' Illumination allowed Occupation frontage only when it is identifying a home occupation of an emergency service nature Temporary See Exempt Signs, Signs 26110.030.8 City of Aspen City Council Ordinance No. Series of 2010 Page 15 B. Arts, cultural, civic, and academic uses. For all arts, cultural, civic, and academic uses, only temporary signs permitted under Section 26.510.030.13, Signs Not Requiring a Permit, and the following signs are permitted and then only if necessary and incidental to a permitted or conditional use (there shall be not more than two (2) freestanding, wall or projecting signs permitted along the lot frontage on any one (1) street, not to exceed a total of four (4) signs per lot): Type of Sign Number of Sign Area (Sq. Ft.) Maximum Height Comments Signs of Freestanding Signs Identification Size of sign cannot 6' Illumination Sign exceed six (6) sq. permitted, unless in a (freestanding, ft. residential zone. wall, projecting sign, or awning No more than Size of sign cannot n/a Illumination sign two (2) wall exceed six (6) sq. permitted, unless in a signs per ft. residential zone. frontage Must not go above eave point. No more than Size of sign cannot n/a Illumination two (2) exceed six (6) sq. permitted, unless in a projecting or ft. residential zone. hanging signs Must not go above per frontage. eave point. Awning sign. 1 Logos or icons on n/a Illumination per awning side awnings cannot be permitted. Counts larger than 1 sq. ft. towards sign allotment. Temporary See Exempt Signs, Signs 26.110.030.B C. Recreational uses. For recreational uses, only signs permitted under Section 26.510.030.B, Signs Not Requiring a Permit, and the following signs are permitted and then only if necessary and incidental to a permitted or conditional use (there shall be not more than two (2) freestanding, wall or projecting signs permitted along the lot frontage on any one (1) street, not to exceed a total of four (4) signs per lot): City of Aspen City Council Ordinance No. Series of 2010 Page 16 Type of Sign Number of . Ft) Sign Area (Sq. aximum Height Comments Signs of Freestanding Signs Identification No more than Size of sign 6' Illumination Sign two (2) cannot exceed permitted, unless in a (freestanding, freestanding six (6) sq. ft. residential zone. wall, signs per projecting, or frontage awning sign) No more than Size of sign n/a Illumination two (2) wall cannot exceed permitted, unless in a signs per six (6) sq. ft. residential zone. frontage Must not go above eave point. No more than Size of sign n/a Illumination two (2) cannot exceed permitted, unless in a projecting or six (6) sq. ft. residential zone. hanging signs Must not go above per frontage. eave point. Awning sign. 1 Logos or icons on n/a Illumination per awning side awnings cannot be permitted. Counts larger than 1 sq. ft. towards sign allotment. Temporary See Exempt Signs, Signs 26110.030.11 D. Restaurant and Retail uses. For all Restaurant and Retail uses. There shall be no more than two (2) of the following three (3) types of signs per individual business frontage: freestanding signs, projecting signs or wall signs, including wall signs with cut out letters. No business shall have more than four (4) of the previously listed signs, either individually or in combination. City of Aspen City Council Ordinance No._, Series of 2010 Page 17 Only signs permitted under Section 26.510.030.13, Signs Not Requiring a Permit, and the following signs are permitted and then only if accessory and incidental to a permitted or conditional use: Type of Sign Number of Sign Area Maximum Height of Comments Signs (Sq. Ft.) Freestanding Signs Identification Freestanding Size not to 6' Illumination permitted. Sign sign. 1 per exceed six (6) (freestanding, individual tenant sq. ft. wall, projecting building frontage. /hanging, sandwich board, window, Fall sign. 2 per Size not to n/a Must not go above eave or awning sign) individual tenant exceed six (6) point. building frontage. sq. ft. Illumination permitted. Projecting or Size not to n/a Illumination permitted. hanging sign. I exceed six (6) Must not go above eave per individual sq. ft. point. Does not count tenant building towards sign allotment frontage. Window sign. 1 Not to exceed n/a Counts towards sign per window. 25% of allotment. Not to window area. exceed 25% of window Awning sign. 1 Logos or icons n/a Illumination permitted. per awning side. on awnings Counts towards sign cannot be allotment. larger than 1 sq. ft. City of Aspen City Council Ordinance No. _, Series of 2010 Page 18 Restaurant and Retail Use Signs Continued. Type of Sign Number of Sign Area (Sq. Ft.) Comments Signs Sandwich 1 per business No more than six (6) sq. ft. per Must obtain permit. No dry Board Sign side erase. Only permitted for retail and restaurant businesses with no frontage parallel to the public right -of -way or on an upper level. Signs must be placed adjacent to the business they represent. Only permitted within the CC and C -1 Zone Districts. Does not count towards sign allotment. Also see criteria under 26.510.090.F Business No more than For 1 to 5 businesses: One sq. The portion of the directory sign directory signs one (1) business ft. of sign area per business used for the associated business directory sign per counts towards that business's lot. sign allotment. For 6 to 10 businesses: Five sq. ft. plus 1 /2 sq. ft. for each business over five businesses For more than 10 businesses: 7' /s sq. ft. plus '/4 square foot for each business over ten businesses, to a max sign area of 10 sq. ft. Temporary See Exempt Signs, 26 110.030.B Signs City of Aspen City Council Ordinance No. , Series of 2010 Page 19 E. Lodge uses. For all lodge uses: There shall be no more than three (3) of the following three (3) types of signs per individual business frontage: freestanding signs, projecting signs or wall signs, including wall signs with cut out letters. No business shall have more than six (6) of the previously listed signs, either individually or in combination. Only signs permitted under Section 26.510.030.13, Signs Not Requiring a Permit, and the following signs are permitted and then only if accessory and incidental to a permitted or conditional use: Type of Sign Number of Sign Area Maximum Height of Comments Signs (Sq. Ft.) Freestanding Signs Identification Freestanding Size not to 6' Illumination permitted. Sign sign. 2 per exceed ten (freestanding, individual tenant (10) sq. ft wall, projecting building frontage. /hanging, window, or awning sign) Wall sign. 2 per Size not to n/a Illumination permitted. individual tenant exceed ten Must not go above eave building frontage. (10) sq. ft. point. Projecting or Size not to n/a Illumination permitted. hanging sign. 2 exceed ten Must not go above eave per individual (10) sq. ft. point. One (1) tenant building projecting or hanging frontage. sign per fagade shall be exempt from counting towards sign allotment. Window sign. 1 Not to exceed n/a Counts towards sign per window. 25% of allotment. Not to window area exceed 25% of window Awning sign. 1 Logos or icons n/a Illumination permitted. per awning side on awnings Counts towards sign cannot be allotment. larger than 1 sq. ft. Temporary See Exempt Signs, Signs 26110.030.B City of Aspen City Council Ordinance No. , Series of 2010 Page 20 E Office and Service uses. For all Office and Service uses: There shall be no more than one (1) of the following three (3) types of signs per individual business frontage: freestanding signs, projecting signs or wall signs, including wall signs with cut out letters. No business shall have more than six (2) of the previously listed signs, either individually or in combination. Only signs permitted under Section 26.510.030.13, Signs Not Requiring a Permit, and the following signs are permitted and then only if accessory and incidental to a permitted or conditional use. As stated in Section 26.510.050(E) of this Chapter, Office and Service uses shall be allotted six (6) square feet of signage per individual business frontage. In buildings with three (3) or more tenants with an Office or Service Use, the allotment shall be reduced to three (3) square feet of signage per individual business frontage. These buildings with three (3) or more tenants may create a business directory sign that grants each tenant no more than one (1) square foot for the purposes of business identification. The business directory sign shall not count towards the signage allotment for the individual tenants. The maximum area for any business directory sign shall be ten (10) square feet: Type of Sign Number of Sign Area Maximum Height of Comments Signs (Sq. Ft.) Freestanding Signs Identification Freestanding Size not to 6' Illumination permitted. Sign sign. 1 per exceed six (6) (freestanding, individual tenant sq. ft wall, projecting building frontage. /hanging, window, or awning sign) Wall sign. 1 per Size not to n/a Illumination permitted. individual tenant exceed six (6) Must go above cave building frontage. sq. ft. point. Projecting or Size not to n/a Illumination permitted. hanging sign. 1 exceed six (6) Must not go above cave per individual sq. ft. point. Does not count tenant building towards sign allotment. frontage. Window sign. 1 Not to exceed n/a Counts towards sign per window. 25% of allotment. Not to window area exceed 25% of window Awning sign. 1 Logos or icons n/a Illumination permitted. per awning side on awnings Counts towards sign cannot be allotment. larger than 1 sq. ft. City of Aspen City Council Ordinance No. Series of 2010 Page 21 26.510.110. Window displays. Window displays of merchandise and representations thereof are not subject to sign regulations, sign square footage and do not require a sign permit. Window displays may have minimal illumination which shall be directed inward towards the business so that there is no contribution of light pollution to adjacent streets or properties. The following types of illumination are prohibited: Televisions, computer monitors or other similar technological devices that create oscillating light. 2. Neon or other gas tube illumination, rope lighting or low- voltage strip lighting. 3. Backlit or internally illuminated displays or graphics. (Ord. No. 10 -2005, § 1) Section 2: A public hearing on the Ordinance was held on the 23` day of August, 2010, at 5:00 p.m. in 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. Section 3• 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 4• 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. (Signatures on following page) City of Aspen City Council Ordinance No. Series of 2010 Page 22 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 26 day of July, 2010. Attest: Kathryn S. Koch, City Clerk FINALLY, adopted, passed and approved this Michael C. Ireland, Mayor day of Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Approved as to form: City Attorney 2010. City of Aspen City Council Ordinance No. Series of 2010 Page 23 till b MEMORANDUM TO: FROM: THRU: DATE OF MEMO: MEETING DATE: RE: Mayor and City Council Don Taylor, Director of Finance Steve Barwick, City Manager July 19, 2010 July 26, 2010 Bond Issue for open Space acquisition and Parks and Open Space Projects REQUEST OF COUNCIL: If Council decides to proceed with open space acquisitions that will be discussed separately from this memo, it will be necessary to finance those purchases through the issuance of bonds. The size of the issue would be $5.9 million based on the current structure of those acquisitions. This also includes $750,000 for the Parks share of the Galena plaza reconstruction. PREVIOUS COUNCIL ACTION: Council has discussed the open space acquisitions in executive session as it has negotiated the sales agreement with the seller. BACKGROUND: The city sought and received from Aspen voters, the authority to issue up to $38 million in bonds for the purpose of buying, improving, and maintaining trail, recreation and open space properties and ancillary facilities. This election was held in November 2000. Since then $25.68 million in bonds have been issued leaving$12.32 million in bonding authority remaining. DISCUSSION: The ordinance authorizes the issuance of $5.9 million in bonds under the authority mentioned above. The bonds are payable solely from the proceeds of the 1.5% Parks Recreation and Open Space Sales Tax. The ordinance also authorizes the issuance of the bonds subject to meeting certain criteria. This is referred to as a parameters ordinance. The parameters are specified in section 30 of the ordinance. Key parameters include that the bonds may not be issued if the net effective interest rate is in excess of 4.75% and that the final maturity of the bonds shall not exceed 21 years from the date of issuance. It also provides that the aggregate principal of the bonds must not exceed $5,900,000. FINANCIAL/BUDGET IMPACTS: The annual debt service on the bonds will be approximately $440,000 annually. This would come from the existing Parks, Recreation and Page 1 of 2 Open Space capital budget. This will of course reduce the amount of resources available to complete capital projects in the fund on a pay as you go basis. RECOMMENDED ACTION: Staff recommends City Council approve the ordinance authorizing the issuance of the Bonds. ALTERNATIVES: The Council could choose to not to issue the bonds at this time to postpone the issuance to a time when Sales tax revenues are better. PROPOSED MOTION: Move to read Ordinance # \ lb . CITY MANAGER COMMENTS: ATTACHMENTS: Page 2 of 2 ORDINANCE NO. , (SERIES OF 2010) AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF ASPEN, COLORADO, OF ITS SALES TAX REVENUE BONDS, SERIES 2010, IN THE AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $5,900,000, FOR THE PURPOSE OF BUYING AND IMPROVING TRAIL, RECREATION AND OPEN SPACE PROPERTIES AND ANCILLARY FACILITIES; PRESCRIBING THE FORM OF THE SERIES 2010 BONDS; PROVIDING FOR THE PAYMENT OF THE SERIES 2010 BONDS FROM THE CITY'S ORIGINAL 1.0% OPEN SPACE SALES TAX AND ITS ADDITIONAL 0.5% OPEN SPACE SALES TAX; PROVIDING OTHER DETAILS AND APPROVING OTHER DOCUMENTS IN CONNECTION WITH THE SERIES 2010 BONDS; DELEGATING THE AUTHORITY TO MAKE A FINAL DETERMINATION OF CERTAIN TERMS OF THE SERIES 2010 BONDS; DIRECTING OFFICERS OF THE CITY TO EXECUTE CERTAIN DOCUMENTS IN CONNECTION WITH SUCH REFUNDING BONDS; AND DECLARING AN EMERGENCY WHEREAS, the City of Aspen (the "City "), in the County of Pitkin and State of Colorado, is a legally and regularly created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado and the home rule charter of the City (as more particularly defined in Section 1 herein, the "Charter ") (all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning assigned in Section 1 of this Ordinance); and WHEREAS, under the Charter, the City is possessed of all powers which are necessary, requisite or proper for the government and administration of its local and municipal matters, all powers which are granted to home rule municipalities by the Colorado Constitution, and all rights and powers that now or hereafter may be granted to municipalities by the laws of the State of Colorado; and WHEREAS, Section 10.5 of the Charter provides in relevant part: The City shall, in addition, have the authority to issue revenue bonds ... payable in whole or in part from the imposition of a sales or use tax by the State of Colorado, or any agency thereof... No revenue bonds shall be issued until the question of their issuance shall have been approved by a majority of the electors voting on the question at a regular or special election.... WHEREAS, pursuant to the City's Ordinance No. 16, Series of 1970 (the "Original Parks and Open Space Sales Tax Ordinance "), the City levies a one percent (1.00 %) sales tax (the "Original Parks and Open Space Sales Tax ") on all sales of tangible property and services specified in Section 23.32.090 of the City's Municipal Code for the payment of food tax refunds, and for the acquisition of real property including open space or construction of capital improvements for municipal purposes, or the payment of indebtedness incurred for such 4846- 1438 - 8486.3 acquisition or construction of capital improvements for municipal purposes, for the expenditures necessary to protect such property against loss, damage or destruction; and WHEREAS, receipts from the Original Parks and Open Space Sales Tax are required by Section 23.32.060(c)(3) of the City's Municipal Code to be set aside in a separate fund entitled "Parks and Open Space Fund" and expended by the City Council solely for the acquisition of parks, trails and open space real property, for the construction of improvements on any real property, owned or purchased by the City for parks, trails and open space purposes, for the maintenance of real property owned by the city and used for parks, trails and open space, and for payment of indebtedness incurred for acquisition or improvement of parks, trails and open space real property, food tax refunds payable by the City, and for such expenditures as may be necessary to protect real property or the improvements thereon owned by the City for parks, trails and open space purposes and for the payment of sales tax revenue bonds issued by the City; and WHEREAS, the following question (the "Ballot Question ") regarding the imposition of an additional 0.5% sales tax (as defined herein, the "Additional Parks and Open Space Sales Tax" and, collectively with the Original Parks and Open Space Sales Tax, the "Parks and Open Space Sales Tax ") and the issuance of sales tax revenue bonds for the purpose of buying, improving and maintaining trail, recreation and open space properties and ancillary facilities was submitted to the electors of the City at the City's November 7, 2000 election, and was approved by a majority of those voting on the question: SHALL CITY OF ASPEN TAXES BE INCREASED UP TO $2,280,000.00 (FIRST FULL FISCAL YEAR DOLLAR INCREASE, NET OF ANY CONSTITUTIONALLY REQUIRED TAX CUTS) ANNUALLY BY THE IMPOSITION OF AN ADDITIONAL 0.5% SALES TAX COMMENCING ON JANUARY 1, 2001, AND TERMINATING ON DECEMBER 31, 2025, AND SHALL CITY OF ASPEN DEBT BE INCREASED BY AN AMOUNT NOT TO EXCEED $38.0 MILLION WITH A MAXIMUM REPAYMENT COST OF $91,065,000.00 FOR THE PURPOSE OF BUYING, IMPROVING AND MAINTAINING TRAIL, RECREATION AND OPEN SPACE PROPERTIES AND ANCILLARY FACILITIES; SUCH DEBT TO CONSIST OF REVENUE BONDS PAYABLE FROM CITY SALES TAXES THAT BEAR INTEREST, MATURE, ARE SUBJECT TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND ARE ISSUED, DATED, AND SOLD, AT SUCH TIMES AS NEEDED TO FINANCE THE PURCHASES OR IMPROVEMENTS AS DESCRIBED ABOVE, AT SUCH PRICES (AT, ABOVE OR BELOW PAR) AND IN SUCH MANNER AND CONTAIN SUCH TERMS AS THE CITY COUNCIL MAY DETERMINE; AND SHALL ANY EARNINGS (REGARDLESS OF AMOUNT) FROM THE INVESTMENT OF THE PROCEEDS OF SUCH TAXES AND SUCH BONDS CONSTITUTE A VOTER - APPROVED REVENUE CHANGE? 4846 - 1438 - 8486.3 2 ; and WHEREAS, the City, pursuant to Ordinance No. 7, Series of 2001 (the "Additional Parks and Open Space Sales Tax Ordinance" and, together with the Original Parks and Open Space Sales Tax Ordinance, the "Parks and Open Space Tax Ordinances "), has since January 1, 2001 levied the Additional Parks and Open Space Sales Tax and, pursuant to Section 23.32.060(c)(7) of the City's Municipal Code, deposits the revenues of the Additional Parks and Open Space Sales Tax in the Parks and Open Space Fund; and WHEREAS, on August 21, 2001, pursuant to Ordinance No. 29 (Series of 2001) (the "Series 2001 Ordinance "), the City issued the City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds, Series 2001 (the "Series 2001 Bonds "), originally issued in the aggregate principal amount of $10,780,000, for the purpose of providing funds for buying, improving and maintaining trail, recreation and open space properties and ancillary facilities; and WHEREAS, on March 24, 2005, pursuant to its Ordinance No. 19 (Series of 2005) (the "Series 2005 Ordinance "), the City issued the City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2005 (the "Series 2005 Bonds "), originally issued in the aggregate principal amount of $12,380,000, for the purpose of refunding the City's Sales Tax Revenue Bonds, Series 1999; and WHEREAS, on October 12, 2005, pursuant to its Ordinance No. 42 (Series of 2005) (the "Series 2005B Ordinance "), the City issued the City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 2005B (the "Series 2005B Bonds "), originally issued in the aggregate principal amount of $14,900,000, for the purpose of buying, improving and maintaining trail, recreation and open space properties and ancillary facilities; and WHEREAS, on December 15, 2009, pursuant to its Ordinance No. 24 (Series of 2009) (the "Series 2009 Ordinance "), the City issued the City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2009 (the "Series 2009 Bonds "), originally issued in the aggregate principal amount of $7,070,000, for the purpose of refunding a portion of the City's Series 2001 Bonds; and WHEREAS, the net revenues of the Parks and Open Space Sales Tax are pledged to the payment of the principal of and interest on the Series 2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds and the Series 2009 Bonds pursuant to the Series 2001 Ordinance, the Series 2005 Ordinance, the Series 2005B Ordinance and the Series 2009 Ordinance, respectively; and WHEREAS, the City Council of the City has determined that it is in the best interests of the City and its residents to issue the City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 2010 (the "Series 2010 Bonds ") in the aggregate principal amount of up to $5,900,000, for the purpose of financing the costs of buying and improving trail, recreation and open space properties and ancillary facilities; and WHEREAS, the Series 2010 Bonds will be secured by a lien on the Parks and Open Space Sales Tax revenue on parity with the lien thereon of the Series 2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds and the Series 2009 Bonds; and 4846- 1438 - 8486.3 3 WHEREAS, the City Council has been presented with a proposal from Stifel Nicolaus & Company, Incorporated, of Denver, Colorado, to purchase the Series 2010 Bonds upon specified terms and conditions, the final terms and conditions of which are to be set forth in the Bond Purchase Agreement in accordance with the Sale Certificate, and, after consideration, the City Council has determined that the negotiated sale of the Series 2010 Bonds, subject to the parameters set forth herein, to said company is to the best advantage of the City; and WHEREAS, no member of the City Council has a potential conflict of interest in connection with the authorization, issuance, sale or use of proceeds of the Series 2010 Bonds; and WHEREAS, pursuant to Section 4.11 of the Charter, the City is authorized to adopt emergency ordinances for the preservation of public property, health, peace, or safety; and WHEREAS, there is a need for issuing the Series 2010 Bonds in a timely manner in order to take advantage of existing market conditions and obtain lower financing costs, thus freeing up City revenues which can be used for the purposes of preserving public property, health, peace and safety; and WHEREAS, this Ordinance is being adopted to authorize the issuance, sale and delivery of the Series 2010 Bonds, to provide for the payment of the Series 2010 Bonds and to provide the details of the Series 2010 Bonds; and WHEREAS, there has been presented to the City Council, among other things, substantially final forms of (a) the Preliminary Official Statement, (b) Paying Agent Agreement, (c) the Bond Purchase Agreement (subject to completion in accordance with the terms of the Sale Certificate), and (d) the Continuing Disclosure Undertaking; and WHEREAS, the City Council desires, as provided in the Supplemental Public Securities Act, Part 2 of Article 57 of Title 11 of the Colorado Revised Statutes, as amended, to delegate the authority to the City Manager, or in the City Manager's absence, the Finance Director and an Assistant City Manager, to determine certain provisions of the Series 2010 Bonds to be set forth in the Sale Certificate, in accordance with the provisions of this Ordinance; and WHEREAS, the City Council also desires to delegate the authority to the City Manager, or in the City Manager's absence, the Finance Director and an Assistant City Manager, to determine whether it is economically beneficial to obtain a financial guaranty insurance policy insuring the payment of the Series 2010 Bonds and, if so determined, to identify the Bond Insurer and execute the Commitment; to determine whether a surety bond is to be obtained to secure payments on the Series 2010 Bonds, and to execute and deliver the Bond Purchase Agreement and approve certain terms thereof, all in accordance with the provisions of this Ordinance; NOW, THEREFORE, BE IT ORDAINED by the City Council of City of Aspen, Colorado: Section 1. Definitions. The following terms shall have the following meanings as used in this Ordinance: 4846- 1438 - 8486.3 4 "Additional Parks and Open Space Sales Tax" means the 0.5% sales tax that is levied in addition to the Original Parks and Open Space Sales Tax by the City pursuant to the authority granted by the Ballot Question, the Additional Parks and Open Space Sales Tax Ordinance and Section 23.32.060(c)(7) of the City's Municipal Code; "Additional Parity Bonds" means any bonds or other obligations (which may or may not be multiple - fiscal year financial obligations) permitted to be issued pursuant to Section 13 hereof with a lien that is equal and on a parity with the lien of the Series 2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds and the Series 2010 Bonds on the Pledged Revenues, the Bond Fund and the Revenue Fund. "Ballot Question" means the ballot question approved by City voters on November 7, 2000 authorizing the Additional Parks and Open Space Sales Tax. "Bond Counsel" means (a) as of the date of issuance of the Series 2010 Bonds, Kutak Rock LLP, and (b) as of any other date, Kutak Rock LLP or such other attorneys selected by the City with nationally recognized expertise in the issuance of municipal bonds. "Bond Fund" means the "City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds Bond Fund" which fund is reaffirmed as such in Section 10(b) hereof. "Bond Insurance Policy" means the municipal bond insurance policy, if any, issued by the Bond Insurer insuring the payment when due of the principal of and interest on the Series 2010 Bonds as provided therein. "Bond Insurer" means the entity, if any, set forth in the Sale Certificate, or any successor thereto. "Bond Purchase Agreement" means the agreement between the City and the Underwriter concerning the purchase of the Bonds by the Underwriter. "Bonds" means, collectively, the Series 2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, the Series 2010 Bonds and any Additional Parity Bonds. "Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions in the State are authorized or obligated by law or executive order to be closed for business. "Charter" means the Charter of the City of Aspen, adopted June 16, 1970, as amended. "City" means the City of Aspen, Colorado, and any successor thereto. "City Councir' means the City Council of the City, and any successor body. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to a section of the Code herein shall be deemed to include the United States Treasury Regulations proposed or in effect thereunder and applicable to the Series 2010 Bonds or the use of proceeds thereof, unless the context clearly requires otherwise. 4846- 1438 - 8486.3 "Commitment" means, collectively, those certain offers, if any, to issue the Bond Insurance Policy, designated as the Commitment, issued by the Bond Insurer. "Defeasance Securities" means Permitted Investments that are bills, certificates of indebtedness, notes, bonds or similar securities which are direct non - callable obligations of the United States of America or which are fully and unconditionally guaranteed as to the timely payment of principal and interest by the United States of America. "Event of Default" means any of the events specified in Section 23 hereof. "Interest Payment Date" means any date on which a payment of principal of, premium, if any, or interest on the Bonds is due pursuant to Section 3(c) hereof. "Letter of Instructions" means the Letter of Instructions, dated the date of issuance of the Series 2010 Bonds, delivered by Bond Counsel to the City, as it may be superseded or amended in accordance with its terms. " Moody's" means Moody's Investor Service and its successors. "Ordinance" means this Ordinance, which authorizes the issuance of the Series 2010 Bonds, including any amendments or supplements hereto. "Original Parks and Open Space Sales Tax" means the 1.0% Open Space Sales Tax levied by the City pursuant to the Original Parks and Open Space Sales Tax Ordinance. "Original Parks and Open Space Sales Tax Ordinance" means the City's Ordinance No. 16, Series of 1970. "Outstanding" means, as of any date, all Bonds, except the following: (a) any Bond cancelled by the City or the Paying Agent, or otherwise on the City's behalf, at or before such date; (b) any Bond held by or on behalf of the City; (c) any Bond for the payment or the redemption of which moneys or Defeasance Securities sufficient to meet all of the payment requirements of the principal of, interest on, and any premium due in connection with the redemption of such Bond to the date of maturity or any redemption date thereof, shall have theretofore been deposited in trust for such purpose in accordance with Section 22 hereof; and (d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in substitution for which another bond or other security shall have been executed and delivered. "Owner" means the Person or Persons in whose name or names a Series 2010 Bond is registered on the registration books maintained by the Paying Agent pursuant hereto. 4846- 1438 - 8486.3 6 "Parks and Open Space Fund" means the City's Parks and Open Space Fund maintained by the City pursuant to Section 23.32.060(c)(3) of the City's Municipal Code. "Parks and Open Space Sales Tax" means, collectively, the Original Parks and Open Space Sales Tax and the Additional Parks and Open Space Sales Tax. "Parks and Open Space Sales Tax Ordinances" means, collectively the Original Parks and Open Space Sales Tax Ordinance and the Additional Parks and Open Space Sales Tax Ordinance. "Paying Agent" means Wells Fargo Bank, National Association, and its successors in interest or assigns approved by the City. "Permitted Investments" means any investment which is permitted for investment of City Funds by the Charter and all other applicable laws which are included on the following list: (a) Cash (insured at all times by the Federal Deposit Insurance Corporation); (b) Direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America; (c) obligations of any of the following federal agencies which obligations represent full faith and credit of the United States of America, including: — Export - Import Bank — Rural Economic Community Development Administration — U.S. Maritime Administration — Small Business Administration — U.S. Department of Housing & Urban Development (PHA's) — Federal Housing Administration — Federal Financing Bank; (d) direct obligations of any of the following federal agencies which obligations are not fully guaranteed by the full faith and credit of the United States of America: senior debt obligations issued by the Federal National Mortgage Association (FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC); obligations of the Resolution Funding Corporation (REFCORP); senior debt obligations of the Federal Home Loan Bank System; and senior debt obligations of other Government Sponsored Agencies approved by Ambac; (e) U.S. dollar denominated deposit accounts, federal funds and banker's acceptances with domestic commercial banks which have a rating on their short-term certificates of deposit on the date of purchase of "A 1" or "A 1 +" by S &P and "P 1" by 4846 -1438- 8486.3 7 Moody's and maturing no more than 360 days after the date of purchase, where ratings on holding companies are not considered as the rating of the bank; (f) commercial paper which is rated at the time of purchase in the single highest classification, "A 1 +" by S &P and "P I" by Moody's, and which matures not more than 270 days after the date of purchase; (g) investments in a money market fund rated "AAAm" or "AAAm —G" or better by S &P; (h) pre - refunded municipal obligations defined as follows: Any bonds or other obligations of any state of the United States of America or of any agency, instrumentality or local governmental unit of any such state which are not callable at the option of the obligor prior to maturity or as to which irrevocable instructions have been given by the obligor to call on the date specified in the notice; and (i) which are rated, based on an irrevocable escrow account or fund (the "escrow "), in the highest rating category of S &P and Moody's or any successors thereto; or (ii)(A) which are fully secured as to principal and interest and redemption premium, if any, by an escrow consisting only of cash or obligations described in paragraph (a) above, which escrow may be applied only to the payment of such principal of and interest and redemption premium, if any, on such bonds or other obligations on the maturity date or dates thereof or the specified redemption date or dates pursuant to such irrevocable instructions, as appropriate; and (B) which escrow is sufficient, as verified by a nationally recognized independent certified public accountant, to pay principal of and interest and redemption premium, if any, on the bonds or other obligations described in this paragraph on the maturity date or dates thereof or on the redemption date or dates specified in the irrevocable instructions referred to above, as appropriate; (i) municipal obligations rated "Aaa/AAA ", or general obligations of states with a rating of at least "A2 /A ", or higher by both Moody's and S &P; and 0) investment agreements and other forms of investments approved in writing by the Bond Insurer. "Person" means a corporation, firm, other body corporate, partnership, association or individual and also includes an executor, administrator, trustee, receiver or other representative appointed according to law. "Pledged Revenues" means, for each fiscal year, all of the proceeds of the Parks and Open Space Sales Tax after deduction of the reasonable and necessary costs and expenses of collecting and enforcing the Parks and Open Space Sales Tax, if any. "Rebate Fund" means the City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2010, Rebate Fund created in Section 10 hereof. "Reserve Fund" means, as the context requires, any one or more of the Series 2001 Reserve Fund, the Series 2005 Reserve Fund, the Series 2005B Reserve Fund, the Series 2009 4846- 1438 - 8486.3 8 Reserve Fund, the Series 2010 Reserve Fund, and/or any reserve fund or funds established for Additional Parity Bonds. "Reserve Fund Contract" has the meaning specified in Section 16(c)(i) hereof. "Reserve Fund Requirement" means, as of any date on which it is calculated, with respect to each series of Bonds, the least of (a) 10% of the principal amount of such series of Bonds, (b) the maximum annual debt service in any calendar year on the Outstanding Bonds of such series or (c) 125% of the average annual debt service on the Bonds of such series; provided, however, that the Reserve Fund Requirement may be reduced if, in the opinion of Bond Counsel, the funding or maintenance of it at the level otherwise determined pursuant to this definition will adversely affect the exclusion from gross income tax for federal income tax purposes of interest on any of the Bonds. "Revenue Fund" means the "City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund" which fund is reaffirmed as such pursuant to Section 10(b) hereof. "Sale Certificate" means the certificate executed by the Sale Delegate under the authority delegated pursuant to this Ordinance, which sets forth, among other things, the prices at which the Series 2010 Bonds will be sold, the delivery date of the Series 2010 Bonds, interest rates and annual maturing principal for the Series 2010 Bonds, as well as the dates on which the Series 2010 Bonds may be redeemed and the redemption prices therefor, the identity of the Bond Insurer (if any), additional provisions required by the Bond Insurer, including terms of the Commitment, and details regarding any Series 2010 Surety Bond. "Sale Delegate" means the City Manager or, in the City Manager's absence, collectively the Finance Director and an Assistant City Manager. "S &P" means Standard & Poor's Ratings Services, a division of the McGraw -Hill Companies, Inc., and its successors. "Series 2001 Reserve Fund" means the Reserve Fund established for the Series 2001 Bonds pursuant to the Series 2001 Ordinance. "Series 2005 Reserve Fund" means the Reserve Fund established for the Series 2005 Bonds pursuant to the Series 2005 Ordinance. "Series 2005B Reserve Fund" means the Reserve Fund established for the Series 2005B Bonds pursuant to the Series 2005B Ordinance. "Series 2009 Reserve Fund" means the Reserve Fund established for the Series 2009 Bonds pursuant to the Series 2009 Ordinance. "Series 2010 Reserve Fund" means the City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 2010, Reserve Fund created in Section 10(a)(ii) hereof. 4846- 1438 - 8486.3 9 "Series 2010 Reserve Policy Agreement" means the reserve policy agreement, if any, with respect to the Series 2010 Bonds and the Series 2010 Surety Bond, between the City and the Bond Insurer. "Series 2010 Surety Bond" means the Reserve Fund Contract, if any, issued by the Bond Insurer guaranteeing certain payments from the Series 2010 Reserve Fund with respect to the Series 2010 Bonds. "State" means the State of Colorado. "Supplemental Act" means the Supplemental Public Securities Act codified in Part 2 of Article 57 of Title 11, Colorado Revised Statutes, as amended. "Underwriter" means Stifel Nicolaus & Company, Incorporated, the original purchaser of the Bonds. Section 2. Authorization and Purpose of Series 2010 Bonds. Pursuant to and in accordance with the Constitution of the State, the Charter and the Supplemental Act, the City hereby authorizes, and directs that there shall be issued, the "City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 2010" in the aggregate principal amount set forth in the Sale Certificate (the "Series 2010 Bonds ") for the purpose of financing the costs of buying and improving trail, recreation and open space properties and ancillary facilities, purchasing the Series 2010 Surety Bond (if any) or otherwise funding the Series 2010 Reserve Fund, and paying the costs of issuance of the Series 2010 Bonds. Section 3. Series 2010 Bond Details. (a) Registered Form, Denominations, Original Dated Date and Numbering. The Series 2010 Bonds shall be issued as fully registered bonds in the denominations set forth in the Sale Certificate, shall be dated as of the date set forth in the Sale Certificate, shall be consecutively numbered in the manner determined by the Paying Agent and shall be registered in the names of the Persons identified in the registration books of the City maintained by the Paying Agent. (b) Maturity Dates, Principal Amounts and Interest Rates. The Series 2010 Bonds shall mature on November 1 of the years and in the principal amounts, and shall bear interest at the rates per annum (calculated based on a 360 -day year of twelve 30 -day months) set forth in the Sale Certificate. (c) Accrual and Dates of Payment of Interest. Interest on the Series 2010 Bonds shall accrue at the rates set forth in the Sale Certificate from the later of the original dated date or the latest interest payment date (or in the case of defaulted interest, the latest date) to which interest has been paid in full and shall be payable on May 1 and November 1 of each year, commencing on the date set forth in the Sale Certificate. (d) Manner and Form of Payment. Principal of, premium, if any, and the final installment of interest on each Series 2010 Bond shall be payable to the Owner thereof upon presentation and surrender of such bond at the principal office of the Paying 4846- 1438 - 8486.3 10 Agent in the city identified in the definition of Paying Agent in Section 1 hereof. Interest (other than the final installment of interest) on each Series 2010 Bond shall be payable by check or draft of the Paying Agent mailed on the interest payment date to the Owner thereof as of the close of business on the fifteenth day (whether or not such day is a Business Day) of the month preceding the month in which the Interest Payment Date occurs. All payments of the principal of, premium, if any, and interest on the Series 2010 Bonds shall be made in lawful money of the United States of America. (e) Book -Entry Registration. Notwithstanding any other provision hereof, the Series 2010 Bonds shall be delivered only in book -entry form registered in the name of Cede & Co., as nominee of The Depository Trust Company ( "DTC "), New York, New York, acting as securities depository of the Series 2010 Bonds and principal of, premium, if any, and interest on the Series 2010 Bonds shall be paid by wire transfer to DTC; provided, however, if at any time the Paying Agent determines, and notifies the City of its determination, that DTC is no longer able to act as, or is no longer satisfactorily performing its duties as, securities depository for the Series 2010 Bonds, the Paying Agent may, at its discretion, either (i) designate a substitute securities depository for DTC and reregister the Series 2010 Bonds as directed by such substitute securities depository or (ii) terminate the book -entry registration system and reregister the Series 2010 Bonds in the names of the beneficial owners thereof provided to it by DTC. Neither the City nor the Paying Agent shall have any liability to DTC, Cede & Co., any substitute securities depository, any Person in whose name the Series 2010 Bonds are reregistered at the direction of any substitute securities depository, any beneficial owner of the Series 2010 Bonds or any other Person for (A) any determination made by the Paying Agent pursuant to the proviso at the end of the immediately preceding sentence or (B) any action taken to implement such determination and the procedures related thereto that is taken pursuant to any direction of or in reliance on any information provided by DTC, Cede & Co., any substitute securities depository or any Person in whose name the Series 2010 Bonds are reregistered. Section 4. Form of Series 2010 Bonds. The Series 2010 Bonds shall be in substantially the form set forth in Appendix A hereto, with such changes thereto, not inconsistent herewith, as may be necessary or desirable and approved by the officials of the City executing the same (whose manual or facsimile signatures thereon shall constitute conclusive evidence of such approval). Although attached as an appendix for the convenience of the reader, Appendix A is an integral part of this Ordinance and is incorporated herein as if set forth in full in the body of this Ordinance. Section 5. Registration, Transfer and Exchange of Series 2010 Bonds. The Paying Agent shall maintain registration books in which the ownership, transfer and exchange of Series 2010 Bonds shall be recorded. The Person in whose name any Series 2010 Bond shall be registered on such registration books shall be deemed to be the absolute owner thereof for all purposes, whether or not payment on any Series 2010 Bond shall be overdue, and neither the City nor the Paying Agent shall be affected by any notice or other information to the contrary. The Series 2010 Bonds may be transferred or exchanged, at the principal office of the Paying Agent in the city identified in the definition of Paying Agent in Section 1 hereof, for a like aggregate principal amount of Series 2010 Bonds of other authorized denominations of the same 4846- 1438 - 8486.3 11 maturity and interest rate, upon payment by the transferee of a transfer fee, any tax or governmental charge required to be paid with respect to such transfer or exchange and any cost of printing bonds in connection therewith. Upon surrender for transfer of any Series 2010 Bond, duly endorsed for transfer or accompanied by an assignment duly executed by the Owner or his or her attorney duly authorized in writing, the City shall execute and the Paying Agent shall authenticate and deliver in the name of the transferee a new Series 2010 Bond. Section 6. Replacement of Lost, Destroyed or Stolen Series 2010 Bonds. If any Series 2010 Bond shall become lost, apparently destroyed, stolen or wrongfully taken, it may be replaced in the form and tenor of the lost, destroyed, stolen or taken bond and the City shall execute and the Paying Agent shall authenticate and deliver a replacement Series 2010 Bond upon the Owner furnishing, to the satisfaction of the Paying Agent: (a) proof of ownership (which shall be shown by the registration books of the Paying Agent), (b) proof of loss, destruction or theft, (c) an indemnity to the City and the Paying Agent with respect to the Series 2010 Bond lost, destroyed or taken, and (d) payment of the cost of preparing and executing the new bond or bonds. Section 7. Execution of Series 2010 Bonds. The Series 2010 Bonds shall be executed in the name and on behalf of the City with the manual or facsimile signature of the Mayor or Mayor Pro Tem of the City, shall bear a manual or facsimile of the seal of the City and shall be attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk, all of whom are hereby authorized and directed to prepare and execute the Series 2010 Bonds in accordance with the requirements hereof. Should any officer whose manual or facsimile signature appears on the Series 2010 Bonds cease to be such officer before delivery of any Series 2010 Bond, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. When the Series 2010 Bonds have been duly executed, the officers of the City are authorized to, and shall, deliver the Series 2010 Bonds to the Paying Agent for authentication. No Series 2010 Bond shall be secured by or entitled to the benefit of this Ordinance, or shall be valid or obligatory for any purpose, unless the certificate of authentication of the Paying Agent has been manually executed by an authorized signatory of the Paying Agent. The executed certificate of authentication of the Paying Agent upon any Series 2010 Bond shall be conclusive evidence, and the only competent evidence, that such Series 2010 Bond has been properly authenticated and delivered hereunder. Section S. Redemption of Series 2010 Bonds Prior to Maturity. (a) Optional Redemption. The Series 2010 Bonds shall be subject to redemption at the option of the City, in whole or in part, and if in part in such order of maturities as the City shall determine and by lot within a maturity on such dates and at such prices (but not in excess of 101% of the principal amount redeemed) as set forth in the Sale Certificate. (b) Mandatory Sinking Fund Redemption. The Series 2010 Bonds shall be subject to mandatory sinking fund redemption by lot on November 1 of the years and in the principal amounts specified in the Sale Certificate, at a redemption price equal to the principal amount to be redeemed (with no redemption premium), plus accrued interest to the redemption date. 4846 - 1438 - 8486.3 12 If the Sale Certificate designates mandatory sinking fund redemption dates for the Series 2010 Bonds, the City, at its option, to be exercised on or before the forty -fifth day next preceding each sinking fund redemption date, may (i) purchase and cancel any Series 2010 Bonds with the same maturity date as the Series 2010 Bonds subject to such sinking fund redemption and (ii) receive a credit in respect of its sinking fund redemption obligation for any Series 2010 Bonds with the same maturity date as the Series 2010 Bonds subject to such sinking fund redemption which prior to such date have been redeemed (otherwise than through the operation of the sinking fund) and cancelled and not theretofore applied as a credit against any sinking fund redemption obligation. Each Series 2010 Bond so purchased and cancelled or previously redeemed shall be credited at the principal amount thereof to the obligation of the City on such sinking fund redemption date, and the principal amount of Series 2010 Bonds to be redeemed by operation of such sinking fund on such date shall be accordingly reduced. (c) Redemption Procedures. Notice of any redemption of Series 2010 Bonds shall be given by sending a copy of such notice by first- class, postage prepaid mail, not less than 30 days prior to the redemption date, to the Owner of each Series 2010 Bond being redeemed. Such notice shall specify the number or numbers of the Series 2010 Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any Series 2010 Bond shall have been duly called for redemption and if, on or before the redemption date, the City shall have set aside funds sufficient to pay the redemption price of such Series 2010 Bond on the redemption date, then such Series 2010 Bond shall become due and payable at such redemption date, and from and after such date interest will cease to accrue thereon. Failure to deliver any redemption notice or any defect in any redemption notice shall not affect the validity of the proceeding for the redemption of Series 2010 Bonds with respect to which such failure or defect did not occur. Any Series 2010 Bond redeemed prior to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled. Section 9. Delivery of Series 2010 Bonds Upon Original Issuance. Prior to the authentication and delivery by the Paying Agent of the Series 2010 Bonds in connection with their original issuance there shall be filed with the Paying Agent (a) a certified copy of this Ordinance and (b) a request and authorization to the Paying Agent on behalf of the City and signed by the Mayor or Mayor Pro Tem to authenticate the Series 2010 Bonds and to deliver the Series 2010 Bonds to the Underwriter or the Persons designated therein, upon payment to the City of a sum specified in such request and authorization plus accrued interest thereon to the date of delivery. Upon the authentication of the Series 2010 Bonds, the Paying Agent shall deliver the same to the Underwriter or its designee as directed in such request and authorization. Section 10. Creation and Reaffirmation of Funds and Accounts. (a) There is hereby created by the City the following funds and accounts: (i) the Series 2010 Rebate Fund, designated as the "City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 2010, Rebate Fund;" and 4846- 1438 - 8486.3 13 (ii) the Series 2010 Reserve Fund, designated as the "City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 2010, Reserve Fund." (b) The following funds, originally created pursuant to Section 13 of the Series 1999 Ordinance and renamed pursuant to Section 10(b) of the Series 2001 Ordinance, are hereby reaffirmed as follows: (i) the Bond Fund is hereby reaffirmed as the "City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds Bond Fund;" and (ii) the Revenue Fund is hereby reaffirmed as the "City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund." Section 11. Application of Proceeds of Series 2010 Bonds. The proceeds received by the City from the sale of the Series 2010 Bonds shall be applied generally as set forth below, and as more particularly provided in the Sale Certificate: (a) to fund the Series 2010 Reserve Fund or to pay for the Series 2010 Surety Bond (as determined by the Sale Delegate and set forth in the Sale Certificate); (b) to pay the costs of issuing the Series 2010 Bonds, including any premium due with respect to a Bond Insurance Policy (if any); and (c) the remainder shall be separately accounted for by the City and applied to the purposes permitted by the Ballot Question. Section 12. Special Obligations; Pledge and Lien for Payment of Bonds (a) Series 2010 Bonds. The City hereby pledges the Pledged Revenues, the Bond Fund, the Series 2010 Reserve Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on the Series 2010 Bonds at any time Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2010 Reserve Fund and the Revenue Fund. The lien of the Series 2010 Bonds on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series 2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, and any Additional Parity Bonds. (b) Series 2009 Bonds. The City hereby pledges the Pledged Revenues, the Bond Fund, the Series 2009 Reserve Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on the Series 2009 Bonds at any time Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2009 Reserve Fund and the Revenue Fund. The lien of the Series 2009 Bonds on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series 2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds, the Series 2010 Bonds and any Additional Parity Bonds. 4846 -1438- 8486.3 14 (c) Series 2005B Bonds. The City hereby pledges the Pledged Revenues, the Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on the Series 2005B Bonds at any time Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund. The lien of the Series 2005B Bonds on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series 2001 Bonds, the Series 2005 Bonds, the Series 2009 Bonds, the Series 2010 Bonds and any Additional Parity Bonds. (d) Series 2005 Bonds. The City hereby further pledges the Pledged Revenues, the Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on the Series 2005 Bonds at any time Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund. The lien of the Series 2005 Bonds on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series 2001 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, the Series 2010 Bonds and any Additional Parity Bonds. (e) Series 2001 Bonds. The City hereby further pledges the Pledged Revenues, the Bond Fund, the Series 2001 Reserve Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on the Series 2001 Bonds at any time Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2001 Reserve Fund and the Revenue Fund. The lien of the Series 2001 Bonds on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, the Series 2010 Bonds and any Additional Parity Bonds. (f) Additional Parity Bonds. Subject to Section 13 hereof, the City also hereby pledges the Pledged Revenues, the Bond Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on any Additional Parity Bonds at any time Outstanding, and grants an irrevocable and first lien for such purpose on the Pledged Revenues, the Bond Fund and the Revenue Fund. (g) Equally and Ratably Secured. The Bonds shall be equally and ratably secured by the pledge of and lien on the Pledged Revenues, the Bond Fund and the Revenue Fund granted by this Section and shall not be entitled to any priority one over the other in the application of Pledged Revenues or the moneys on deposit at any time in the Bond Fund and the Revenue Fund. (h) Superior Liens Prohibited. The City shall not pledge or create any other lien on the revenues and moneys pledged pursuant to this Section that is superior to the pledge thereof or lien thereon pursuant hereto. 4846- 1438- 8486.3 15 (i) Subordinate Liens Permitted. Nothing herein shall prohibit the City from pledging or creating a lien on the revenues and moneys pledged and the lien created pursuant to subsections (a), (b) and (c) of this Section that is subordinate to the pledge thereof or lien thereon pursuant to such subsections, provided that no such subordinate pledge or lien shall be created unless and until there is delivered to the Paying Agent a written certification by the Mayor that no Event of Default has occurred and is continuing. 0) No Prohibition on Additional Security. Nothing herein shall prohibit the City from (i) using, pledging or granting a lien on any revenues from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other moneys for the payment of the principal of, premium, if any, or interest on the Bonds or (ii) depositing any revenues from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other moneys into the Bond Fund or the Revenue Fund (and thereby subjecting the moneys so deposited to the pledge made and lien granted by this Section). (k) Bonds are Special, Limited Obligations of the City. The Bonds are special, limited obligations of the City payable solely from and secured solely by the Pledged Revenues and the other sources specified in this Ordinance and shall not be deemed or construed as creating a debt or indebtedness of the City within the meaning of any constitutional or statutory limitation. Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds may be Outstanding: (a) Limitations Upon Issuance of Additional Parity Bonds. Nothing in this Ordinance shall be construed to prevent the issuance by the City of Additional Parity Bonds (including refunding obligations) payable in whole or in part from the Pledged Revenues (or any designated part thereof) and constituting a lien thereon on a parity with, but not prior or superior to, the lien of the Series 2010 Bonds, the Series 2009 Bonds, the Series 2005B Bonds, the Series 2005 Bonds, the Series 2001 Bonds and any previously issued Additional Parity Bonds; provided, however, that before any such Additional Parity Bonds are authorized or actually issued: (i) The City is then current in all payments required to have been accumulated in the Bond Fund, the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any reserve fund maintained with respect to any then Outstanding series of Additional Parity Bonds, and there is not otherwise an Event of Default as defined in Section 23 hereof. (ii) The revenues derived from the entire Pledged Revenues for the twelve consecutive calendar months immediately preceding the month of issuance of such Additional Parity Bonds shall have been sufficient to pay an amount equal to 150% of the combined maximum annual principal and interest requirements (to and including the final maturity of each then- Outstanding series of Bonds) on the 4846- 1438 - 8486.3 16 then- Outstanding Bonds and on the Additional Parity Bonds then proposed to be issued (including any reserve requirements therefor). (iii) The ordinance authorizing such Additional Parity Bonds shall require that a reserve fund for Additional Parity Bonds be created in an amount equal to the Reserve Fund Requirement for such Additional Parity Bonds. The City may, however, comply with the Reserve Fund Requirement through a Reserve Fund Contract that meets the standards established in Section 16 hereof. (b) Certificate of Revenues. A written certification by a certified public accountant who is not a regular salaried employee of the City that such Pledged Revenues are sufficient to pay the amounts required by paragraph (a)(ii) of this Section shall be conclusively presumed to be accurate in determining the right of the City to authorize, issue, sell and deliver Additional Parity Bonds. (c) Subordinate Obligations Permitted. Nothing in this Ordinance shall be construed to prevent the issuance by the City of additional obligations (including refunding obligations) payable from the Pledged Revenues (or any designated part thereof) and having a lien thereon subordinate or junior to the lien of the Bonds. (d) Superior Obligations Prohibited. Nothing in this Ordinance shall be construed to permit the City to issue additional obligations (including refunding obligations) payable from the Pledged Revenues (or any designated part thereof) having a lien thereon prior and superior to the lien of the Bonds. (e) Refunding Obligations. The provisions of this Section are subject to the following exception: (i) Privilege of Issuing Refunding Obligations. If at any time after any of the Bonds, or any part thereof, shall have been issued and remain Outstanding, the City shall find it desirable to refund all or any part of the Outstanding Bonds, such Bonds, or any part thereof, may be refunded (but only with the consent of the Owner or Owners thereof, unless such Bonds, at the time of their required surrender for payment, shall then mature, or shall then be subject to redemption prior to maturity). (ii) Limitations Upon Issuance of Parity Refunding Obligations. No refunding obligations payable from the Pledged Revenues (or any designated part thereof) shall be issued on a parity with the Series 2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds, Series 2009 Bonds and the Series 2010 Bonds, unless: (A) the lien on such Pledged Revenues of the outstanding obligations so refunded is on a parity with the lien thereon of the Series 2001 Bonds, the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds and the Series 2010 Bonds; or 4846- 1438 - 8486.3 17 (B) the refunding obligations are issued in compliance with subsection (a) of this Section. (iii) Partial Refunding of Bonds. Any refunding obligations so issued to refund any of the Bonds shall enjoy complete equality of lien with any Bonds which are not refunded. (iv) Limitations Upon Refundings. Any refunding obligations payable from the Pledged Revenues may be issued with such details as the City may by ordinance provide, but without any impairment of any contractual obligations imposed upon the City by this Ordinance. Section 14. Application of Pledged Revenues. So long as any of the Bonds shall remain Outstanding, all Pledged Revenues, as they are received, shall be transferred from the Parks and Open Space Fund or any other funds or accounts to which they are required to be deposited by the Section 23- 32- 060(c)(7) of the City's Municipal Code or otherwise, and shall thereupon be deposited into the Revenue Fund, and the Pledged Revenues are hereby appropriated for such purpose. Moneys on deposit in the Revenue Fund shall be transferred from the Revenue Fund and applied to the following purposes and in the following order of priority: (a) FIRST, there shall be credited to the Bond Fund an amount necessary, together with any moneys therein and available therefor, to pay the next due installment of principal of, premium, if any, and interest on the Bonds; (b) SECOND, there shall be credited, on a pro rata basis, to the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any reserve fund or funds created with respect to any series of Additional Parity Bonds an amount, if any, necessary to increase the amount on deposit in each of such funds to the Reserve Fund Requirement for such fund or to repay the provider of a Reserve Fund Contract for a drawing thereon. No payment need be made into any such fund so long as the moneys therein shall equal not less than the Reserve Fund Requirement for such fund and no draw has been made on any Reserve Fund Contract deposited in such fund. The Reserve Fund Requirement for each such fund shall be accumulated and maintained in each such fund as a continuing reserve to be used, except as hereinafter provided, only to prevent deficiencies in the payment of the principal of, premium, if any, and interest on the Bonds. (c) THIRD, there shall be credited to the Parks and Open Space Fund or, subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances and the City's Municipal Code, used in any lawful manner by the City, any amounts remaining after making the deposits required by subsections (a) and (b) of this Section. (d) Notwithstanding subsections (a) and (b) of this Section, no payment need be made pursuant to subsection (a) or (b) of this Section into either the Bond Fund, the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund or any reserve fund created for a series of Additional Parity Bonds if the moneys on deposit in such funds 4846 -1438- 8486.3 18 total a sum at least equal to the entire amount of the Outstanding Bonds as to any principal, premium, if any, and interest requirements, to their respective maturities, or to any redemption date on which the City shall have exercised its option to redeem all or a portion of the Bonds then Outstanding and thereafter maturing, and both accrued and not accrued, in which case moneys in such funds in an amount at least equal to such principal, premium, if any, and interest requirements shall be used solely to pay such as the same accrue, and any moneys in excess thereof in such funds may, subject to any limitations in the Parks and Open Space Sales Tax Ordinances or the City's Municipal Code, be used in any lawful manner by the City. Section 15. Bond Fund. Moneys in the Bond Fund shall be used solely for the purpose of paying the principal of, premium, if any, and interest on the Bonds. Section 16. Series 2010 Reserve Fund. (a) Use of Moneys in Series 2010 Reserve Fund. If on any date specified in Section 18 hereof, the City shall have for any reason failed to pay to the Paying Agent the full amount required to pay the next installment of principal of or interest on the Bonds, then an amount equal to the amount needed to bring the amount in the Bond Fund to the full amount so required shall be immediately paid, pro rata, to the Paying Agent from: (i) the Series 2010 Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2010 Bonds; (ii) the Series 2009 Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2009 Bonds; (iii) the Series 2005B Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2005B Bonds; (iv) the Series 2005 Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2005 Bonds; (v) the Series 2001 Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2001 Bonds; and (vi) any reserve fund or funds created with respect to any series of Additional Parity Bonds with respect to the portion of the deficiency corresponding to the amounts due on such series of Additional Parity Bonds. The money so used shall be replaced in the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any such other reserve fund or funds on a pro rata basis from the first Pledged Revenues thereafter received not required to be otherwise applied hereunder, but excluding any payments required for any subordinate obligations. If in any period the City shall for any reason fail to pay into the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund or any such other reserve fund or funds the full amount above stipulated from the Pledged Revenues, the difference between the amount paid and the amount so stipulated shall in a like manner be deposited therein from the first Pledged Revenues thereafter received not required to be applied otherwise by this Section, but excluding any payments required for any subordinate obligations. Moneys in the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any such other reserve fund shall be used solely for the purpose of paying the principal of, premium, if any, and interest on the series of Bonds with respect to which such fund is maintained. 4846 -1438- 8486.3 19 (b) Use of Moneys in Excess of Reserve Fund Requirement Any moneys at any time in excess of the Reserve Fund Requirement in the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund or any reserve fund or funds maintained with respect to any series of Additional Parity Bonds may be withdrawn therefrom and, subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances and the City's Municipal Code, used in any lawful manner by the City. (c) Reserve Fund Contract. (i) The City may substitute for the cash or Permitted Investments in any Reserve Fund a surety bond issued by entity rated at least "A" by S &P (a "Reserve Fund Contract "), so long as the amount on deposit in any Reserve Fund after such substitution is at least equal to the Reserve Fund Requirement applicable to such Reserve Fund. In the event the City shall substitute a Reserve Fund Contract for the cash or Permitted Investments in any Reserve Fund, the amount on deposit in any Reserve Fund shall be that amount available to be drawn or otherwise paid pursuant to such surety bond at the time of calculation. If any Reserve Fund shall include both cash or Permitted Investments and a Reserve Fund Contract, the cash and Permitted Investments shall be used before any demand is made on any Reserve Fund Contract. Notwithstanding the foregoing, prior to such substitution, the City must receive an opinion of nationally recognized municipal bond counsel to the effect that such substitution and the intended use by the City of the cash or Permitted Investments to be released from any Reserve Fund will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds to which such Reserve Fund applies. (ii) The Series 2010 Surety Bond (if any) is hereby recognized to be a Reserve Fund Contract described in paragraph (i) of this subsection (c). Upon issuance thereof by the Bond Insurer, the Series 2010 Surety Bond (if any) shall be deposited in the Series 2010 Reserve Fund and shall be used in the manner described in paragraph (i) of this subsection (c). (d) Valuation of Deposits. Cash shall satisfy the Reserve Fund Requirement for the Series 2010 Reserve Fund by the amount of cash on deposit. Permitted Investments shall satisfy the Reserve Fund Requirement by the value of such investments. The value of each Permitted Investment on deposit in the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any reserve fund or funds created with respect to any series of Additional Parity Bonds shall be (i) its purchase price from the date of purchase until the first date thereafter on which the Reserve Fund Requirement is calculated pursuant to subsection (e) of this Section and (ii) following each date on which the Reserve Fund Requirement is calculated pursuant to subsection (e) of this Section until the next date on which the Reserve Fund Requirement is so calculated, its fair market value determined as of such calculation date. A Reserve 4846 -1438- 8486.3 20 Fund Contract shall satisfy the Reserve Fund Requirement by the amount payable to the City pursuant to such contract. (e) Calculation of Reserve Fund Requirement and Transfers Resulting from Calculation. The Reserve Fund Requirement for each of the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any reserve fund or funds created with respect to any series of Additional Parity Bonds shall be calculated as of (i) the date of issuance of the Series 2010 Bonds, (ii) the date of issuance of each series of Additional Panty Bonds and (iii) each November 1, commencing November 1, 2010. If, on any calculation date, the amount on deposit in any of such funds is less than the Reserve Fund Requirement for such fund, Pledged Revenues shall be deposited into such fund as provided in Section 14 hereof to the extent necessary to satisfy the Reserve Fund Requirement in cash or by the purchase of Permitted Investments or a Reserve Fund Contract. Section 17. Rebate Fund. The City shall deposit earnings from the investment of proceeds of the Series 2010 Bonds, earnings from the investment of moneys on deposit in the Bond Fund, the Series 2010 Reserve Fund and the Revenue Fund or other legally available moneys in the Rebate Fund in the amounts and at the times provided in the Letter of Instructions. Earnings from the investment of moneys on deposit in the Rebate Fund shall be retained in the Rebate Fund. Moneys on deposit in the Rebate Fund shall be used as provided in the Letter of Instructions. Section 18. Payments to and by Paying Agent. (a) Payments to Paying Agent. No later than the Business Day immediately preceding each Interest Payment Date, the City shall deliver moneys to the Paying Agent in an amount sufficient to pay the principal of, premium, if any, and interest on the Bonds on such date from the sources and in the priority order set forth below: First, from moneys on deposit in the Bond Fund; and Second, if and to the extent the moneys on deposit in the Bond Fund are not sufficient to pay the principal of, premium, if any, or interest due on the Bonds on such date, from the Series 2010 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series 2001 Reserve Fund and any reserve fund maintained with respect to any series of Additional Parity Bonds, on a pro rata basis, pursuant to Section 16 hereof. (b) Payments by Paying Agent. The Paying Agent shall use the moneys delivered to it pursuant to subsection (a) of this Section to pay the principal of, premium, if any, and interest on the Bonds when due. Section 19. General Administration of Funds. The funds and accounts established pursuant to this Ordinance, with the exception of the Rebate Fund, shall be administered as follows, subject to the limitations stated in Sections 16 and 20 of this Ordinance: 4846- 1438 - 8486.3 21 (a) Investment of Money. Any moneys in any such fund and account may be invested in Permitted Investments. The obligations in which moneys in each fund or account are invested shall be deemed at all times to be part of the respective fund or account, and any appreciation or loss resulting therefrom shall be recorded to such fund or account. Interest accruing on the investment of any moneys in the Series 2010 Reserve Fund shall be deposited as received into the Revenue Fund, and interest accruing on the investment of any moneys in any other such fund or account shall be credited to the fund or account from which it is derived. The City Finance Director shall present for redemption or sale in the prevailing market any obligations so purchased as an investment of moneys in the fund or account whenever it shall be necessary to do so in order to provide moneys to meet any payment or transfer from said fund or account. (b) Deposits of Funds. The moneys and investments comprising each of such funds and accounts shall be deposited in one or more banks or savings and loans associations, each of which is a member of the Federal Deposit Insurance Corporation. Each payment shall be made into and credited to the proper fund or account on the date specified, but if such date shall be other than a Business Day, such payment shall be made on the next preceding Business Day. Nothing herein shall prevent the establishment of one or more such bank accounts, for all of such funds and accounts, or shall prevent the combination of such funds and accounts with any other bank account or accounts for other accounts of the City. Section 20. Additional General Covenants. In addition to the other covenants of the City contained herein, the City hereby further covenants for the benefit of Owners of the Bonds that: (a) Payment of Series 2010 Bonds. The City will promptly pay or cause to be paid the principal of, premium, if any, and interest on the Series 2010 Bonds, at the place, on the dates and in the manner provided in this Ordinance, according to the true intent and meaning of this Ordinance. (b) No Repeal or Modification of Parks and Open Space Sales Tax Ordinances or Applicable Sections of City's Municipal Code. The City shall not repeal the Parks and Open Space Sales Tax Ordinances or adopt any modification of such ordinances or any provisions of the City's Municipal Code which would impair the Pledged Revenues. (c) Duty to Impose Open Space Sales Tax. If the Parks and Open Space Sales Tax Ordinances, the provisions of the City's Municipal Code referred to in subsection (b) of this Section or any modifying or supplemental instrument thereto not contravening the limitations of subsection (b) of this Section, or any part of such ordinances or such portions of the City's Municipal Code, shall ever be held to be invalid or unenforceable or shall otherwise be terminated, it shall be the duty of the City, to the extent possible under then existing law, to adopt immediately such ordinances, to seek such voter approval, if any, as may then be required by law, or to take any other action necessary to produce at least the same amount of Pledged Revenues as would have 4846 -1438- 8486.3 22 otherwise been produced under the terms of such ordinances and such portions of the City's Municipal Code. (d) Impairment of Contract. The City agrees that any law, ordinance or resolution of the City in any manner affecting the Pledged Revenues or the Bonds, shall not be repealed or otherwise directly or indirectly modified in such a manner as to impair any Bonds Outstanding, unless in the case of this Ordinance the required consent of the Owners of the then Outstanding Bonds is obtained pursuant to Section 25 of this Ordinance. (e) Records. So long as any of the Bonds remain Outstanding, proper books of record and account will be kept by the City, separate and apart from all other records and accounts, showing complete and correct entries of all transactions relating to the Pledged Revenues. The Owners of any Bonds shall have the right at any reasonable time to inspect such records and accounts. (f) Audits. The City further agrees that it will, within 120 days following the close of each fiscal year, cause an audit of such books and accounts to be made by an independent certified public accountant, showing the revenues and expenditures of the Pledged Revenues. The City agrees to furnish forthwith a copy of each such audit to the Owner of any Bond at his request, and without request to the Original Purchaser. Any such Owner shall have the right to discuss with the accountant or person making the audit its contents and to ask for such additional information as he may reasonably require. (g) Extending Interest Payments. hi order to prevent any accumulation of claims for interest after maturity, the City will not directly or indirectly extend or assent to the extension of time for the payment of any claim for interest on any of the Bonds and it will not directly or indirectly be a party to or approve any such arrangement; and in case the time for payment of any interest shall be extended, such installment or installments of interest after such extension or arrangement shall not be entitled in case of default hereunder to the benefit or security of this Ordinance except subject to the prior payment in full of the principal of all Bonds and then Outstanding, and of matured interest on such Bonds, the payment of which has not been extended. (h) Performing Duties. The City will faithfully and punctually perform all duties with respect to the Pledged Revenues required by the Charter and the Constitution and laws of the State of Colorado, and the ordinances and resolutions of the City, including but not limited to, the proper segregation of the Pledged Revenues and their application to the respective funds. (i) Other Liens. Other than that granted for the Bonds herein, there are presently no other liens or encumbrances of any nature whatsoever on or against the Pledged Revenues. 0) City's Existence. The City will maintain its corporate identity and existence so long as any of the Bonds remain Outstanding, unless another body corporate and politic by operation of law succeeds to the duties, privileges, powers, liabilities, 4846- 1438 - 8486.3 23 disabilities, immunities and rights of the City and is obligated by law to receive and distribute the Pledged Revenues in place of the City, without affecting to any substantial degree the privileges and rights of any Owner of any Outstanding Bond. Section 21. Covenants Regarding Exclusion of Interest on Series 2010 Bonds from Gross Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on the Series 2010 Bonds is and remains excluded from gross income for federal income tax purposes, the City hereby covenants that: (a) Prohibited Actions. The City will not use or permit the use of any proceeds of the Series 2010 Bonds or any other funds of the City from whatever source derived, directly or indirectly, to acquire any securities or obligations and shall not take or permit to be taken any other action or actions, which would cause any Series 2010 Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code, or would otherwise cause the interest on any Series 2010 Bond to be includible in gross income for federal income tax purposes. (b) Affirmative Actions. The City will at all times do and perform all acts permitted by law that are necessary in order to assure that interest paid by the City on the Series 2010 Bonds shall not be includible in gross income for federal income tax purposes under the Code or any other valid provision of law. In particular, but without limitation, the City represents, warrants and covenants to comply with the following rules unless it receives an opinion of Bond Counsel stating that such compliance is not necessary: (i) gross proceeds of the Series 2010 Bonds will not be used in a manner that will cause the Series 2010 Bonds to be considered "private activity bonds" within the meaning of the Code; (ii) the Series 2010 Bonds are not and will not become directly or indirectly "federally guaranteed"; and (iii) the City will timely file Internal Revenue Form 8038 -G which shall contain the information required to be filed pursuant to Section 149(e) of the Code. (c) Letter of Instructions. The City will comply with the Letter of Instructions, including but not limited by the provisions of the Letter of Instructions regarding the application and investment of Series 2010 Bond proceeds, the calculations, the deposits, the disbursements, the investments and the retention of records described in the Letter of Instructions; provided that, in the event the original Letter of Instructions is superseded or amended by a new Letter of Instructions drafted by, and accompanied by an opinion of, Bond Counsel stating that the use of the new Letter of Instructions will not cause the interest on the Series 2010 Bonds to become includible in gross income for federal income tax purposes, the City will thereafter comply with the new Letter of Instructions. (d) Designation of Bonds as Qualified Tax- Exempt Obligations. The City hereby designates the Series 2010 Bonds as qualified tax- exempt obligations within the meaning of Section 265(b)(3) of the Code. The City covenants that the aggregate face amount of all tax- exempt obligations issued by the City, together with governmental entities which derive their issuing authority from the City or are subject to substantial control by the City, shall not be more than $30,000,000 during calendar year 2010. The 4846- 1438 - 8486.3 24 City recognizes that such tax- exempt obligations include notes, leases, loans and warrants, as well as bonds. The City further recognizes that any bank, thrift institution or other financial institution that owns the Series 2010 Bonds will rely on the City's designation of the Series 2010 Bonds as qualified tax- exempt obligations for the purpose of avoiding the loss of 100% of any otherwise available interest deduction attributable to such institution's tax- exempt holdings. Section 22. Defeasance. Any Series 2010 Bond shall not be deemed to be Outstanding hereunder if it shall have been paid and cancelled or if cash or Defeasance Securities shall have been deposited in trust for the payment thereof (whether upon or prior to the maturity of such Series 2010 Bond, but if such Series 2010 Bond is to be paid prior to maturity, the City shall have given the Paying Agent irrevocable directions to give notice of redemption as required by this Ordinance, or such notice shall have been given in accordance with this Ordinance). In computing the amount of the deposit described above, the City may include interest to be earned on the Defeasance Securities. If less than all the Series 2010 Bonds are to be defeased pursuant to this Section, the City, in its sole discretion, may select which of the Series 2010 Bonds shall be defeased. Notwithstanding anything in this Bond Ordinance to the contrary, in the event that the principal and/or interest due on the Series 2010 Bonds shall be paid by the Bond Insurer pursuant to the Bond Insurance Policy, the Series 2010 Bonds shall remain Outstanding for all purposes, not be defeased or otherwise satisfied and not be considered paid by the City, and the assignment and pledge of the Pledged Revenues and all covenants, agreements and other obligations of the City to the Owners shall continue to exist and shall run to the benefit of the Bond Insurer, and the Bond Insurer shall be subrogated to the rights of such Owners. Section 23. Events of Default. If any of the following events occurs, it is hereby declared to constitute an Event of Default: (a) default in the due and punctual payment of the principal of, premium, if any, or interest on any Bond whether at maturity thereof, or upon proceedings for redemption thereof; or (b) the City is for any reason rendered incapable of fulfilling its obligations hereunder; or (c) default in the due and punctual performance of the City's covenants or conditions, agreements and provisions as set forth in this Ordinance, other than those delineated in paragraphs (a) and (b) of this Section, and such default has continued for 60 days after written notice specifying the default and requiring the same to be remedied has been given to the City by the Owners of 25% in principal amount of the Bonds then Outstanding; or (d) the City shall file a petition for bankruptcy or shall be declared insolvent by a court of competent jurisdiction. 4846- 1438 - 8486.3 25 Section 24. Remedies for and Duties Upon Events of Default. (a) Remedies for Events of Default. Upon the happening and continuance of any of the Events of Default as provided in Section 23 of this Ordinance, then and in every case, the Owner or Owners of not less than 25% in principal amount of the Bonds then Outstanding, including but not limited to, a trustee or trustees therefor, may proceed against the City and its agents, officers and employees, to protect and enforce the rights of any Owner of Bonds under this Ordinance by mandamus or other suit, action or special proceedings in equity or at law, in any court of competent jurisdiction, either for the specific performance of any covenant or agreement contained herein or in an award of execution of any power herein granted for the enforcement of any proper legal or equitable remedy as such Owner or Owners may deem most effectual to protect and enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful or in violation of any right of any Owner, or to require the governing body to act as if it were the trustee of an express trust, or any combination of such remedies. All such proceedings at law or in equity shall be instituted, had and maintained for the equal benefit of all Owners of the Bonds then Outstanding. The failure of any such Owner so to proceed shall not relieve the City or any of its officers, agents or employees of any liability for failure to perform any duty. Each right or privilege of any such Owner (or trustee thereof) is in addition and cumulative to any other right or privilege, and the exercise of any right or privilege by or on behalf of any Owner shall not be deemed a waiver of any other right or privilege thereof. (b) Duties Upon Events of Default. Upon the happening of any of the Events of Default as provided in Section 23 of this Ordinance, the City will do and perform all proper acts on behalf of and for the Owners of the Bonds to protect and preserve the security created for the payment of their Bonds and to insure the payment of the principal of, premium, if any, and interest on Bonds promptly as the same become due. All proceeds derived from the Pledged Revenues, during such period of default and so long as any of the Bonds, as to any principal, premium, if any, and interest are Outstanding and unpaid, shall be paid into the Bond Fund, and used for the purposes herein provided. In the event the City fails or refuses to proceed as provided in this Section, the Owner or Owners of not less than 25% in principal amount of the Bonds then Outstanding, after demand in writing, may proceed to protect and enforce the rights of the Owners as herein provided. 4846 -1438- 8486.3 26 Section 25. Amendment of Ordinance. This Ordinance may be amended or supplemented by ordinance adopted by the City Council in accordance with law, without receipt by the City of additional considerations and without the consent of the Owners, to make any amendment or supplement to this Ordinance which, in the opinion of Bond Counsel, is not to the material prejudice of the Owners. This Ordinance may be amended or supplemented by ordinance adopted by the City Council in accordance with law, without receipt by the City of any additional consideration, but with the written consent of the Owners of 66 -2/3% of the Bonds Outstanding at the time of the adoption of the amendatory ordinance, excluding any Bonds held for the account of the City; provided, however, that no such ordinance, without the consent of the Owners of all Outstanding Bonds which will be adversely affected, shall have the effect of permitting: (a) an extension of the maturity of any Bond; or (b) a reduction in the principal amount of any Bond, the rate of interest thereon, or the premium payable thereon; or (c) the creation of a lien upon or pledge of Pledged Revenues ranking prior to the lien or pledge of Pledged Revenues created by this Ordinance; or (d) a reduction of the principal amount of Bonds required for consent to such amendatory or supplemental ordinance; or (e) the establishment of priorities as between Bonds issued and Outstanding under the provisions of this Ordinance; or (f) the modification of or otherwise affecting the rights of the Owners of less than all of any series of Bonds then Outstanding. Section 26. Appointment and Duties of Paying Agent. (a) The Paying Agent identified in Section 1 hereof is hereby appointed as paying agent, registrar and authenticating agent for the Series 2010 Bonds unless and until the City or the Bond Insurer removes it as such and appoints a successor Paying Agent, in which event such successor shall, subject to subsection (b) of this Section, automatically succeed to the duties of the Paying Agent hereunder and its predecessor shall immediately turn over all its records regarding the Series 2010 Bonds to such successor. The Paying Agent, by accepting its duties as such, agrees to perform all duties and to take all actions assigned to it hereunder in accordance with the terms hereof. (b) Any successor Paying Agent appointed as such pursuant to subsection (a) of this Section must: (i) be a trust company or bank in good standing located in or incorporated under the laws of the State; (ii) be duly authorized to exercise trust powers and subject to examination by federal or State authority; (iii) have a capital and surplus at the time of such appointment of not less than $50,000,000; and (iv) be acceptable to the Bond Insurer. 4846 -1438- 8486.3 27 (c) Notwithstanding any other provision of this Ordinance, no removal, resignation or termination of the Paying Agent shall take effect until a successor, acceptable to the Bond Insurer, shall be appointed. Section 27. Parties Interested Herein. Nothing in this Ordinance expressed or implied is intended or shall be construed to confer upon, or to give or grant to, any person or entity, other than the City, the Paying Agent, the Bond Insurer and the Owners of the Bonds, any right, remedy or claim under or by reason of this Ordinance or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises and agreements in this Ordinance contained by and on behalf of the City shall be for the sole and exclusive benefit of the City, the Paying Agent, the Bond Insurer and the Owners of the Bonds. Section 28. Events Occurring on Days That Are Not Business Days. Except as otherwise specifically provided herein with respect to a particular payment, event or action, if any payment to be made hereunder or any event or action to occur hereunder which, but for this Section, is to be made or is to occur on a day that is not a Business Day shall instead be made or occur on the next succeeding day that is a Business Day. Section 29. Findings and Determinations. The City Council hereby finds, determines and declares that: (a) it is in the best interest of the City and its residents that the Series 2010 Bonds be authorized, sold, issued and delivered at the time, in the manner and for the purposes provided herein; (b) all actions required by the Charter and any other applicable law to be taken by the City for the issuance of the Series 2010 Bonds and the application of any of the provisions hereof have been taken by the City; (c) the issuance of the Series 2010 Bonds will not cause the City to exceed its debt limit under the Charter or applicable State law; and (d) the issuance of the Series 2010 Bonds and all procedures undertaken incident thereto are in full compliance and conformity with all applicable requirements, provisions and limitations prescribed by the Constitution and laws of the State and the City, including the Charter, and all conditions and limitations of the Charter and other applicable law relating to the issuance of the Series 2010 Bonds have been satisfied. Section 30. Delegation and Parameters. (a) The City Council hereby delegates to the Sale Delegate the authority to determine and set forth in the Sale Certificate: (i) the matters set forth in subsection (b) of this Section, subject to the applicable parameters set forth in subsection (c) of this Section; and (ii) any other matters that, in the judgment of the Sale Delegate, are necessary or convenient to be set forth in the Sale Certificate and are not inconsistent with the parameters set forth in subsection (c) of this Section. 4846- 1438 - 8486.3 28 (b) The Sale Certificate shall set forth the following matters and other matters permitted to be set forth therein pursuant to subsection (a) of this Section, but each such matter must fall within the applicable parameters set forth in subsection (c) of this Section: (i) the date on which the Bonds will be issued, which shall be the Dated Date; (ii) the aggregate principal amount of the Series 2010 Bonds; (iii) the principal amount of the Series 2010 Bonds maturing in each year; (iv) the interest payment dates; (v) the rates of interest; (vi) the prices at which the Series 2010 Bonds will be sold pursuant to the Bond Purchase Agreement; (vii) the Series 2010 Bonds which maybe redeemed at the option of the City, the dates upon which such optional redemption may occur, and the prices at which such Bonds may be optionally redeemed; (viii) the principal amounts, if any, of Bonds subject to mandatory sinking fund redemption, and the years in which such Bonds will be subject to such redemption; (ix) the identity of the Bond Insurer (if any); and (x) the amount (if any) of net proceeds of the Series 2010 Bonds to be deposited into the Reserve Fund or applied to pay for the Series 2010 Surety Bond (if any). (c) The authority delegated to the Sale Delegate by this Section shall be subject to the following parameters: (i) in no event shall the Sale Delegate be authorized to execute the Sale Certificate and Bond Purchase Agreement after the date that is 180 days after the date of adoption of this Ordinance and in no event may the Series 2010 Bonds be issued after such date, absent further authorization by the City Council; (ii) the aggregate principal amount of the Series 2010 Bonds shall not exceed $5,900,000; (iii) the final maturity of the Series 2010 Bonds shall be no later than the date that is 21 years after the date of issuance of the Series 2010 Bonds; and 4846- 1438 - 8486.3 29 (iv) the price at which the Bonds will be sold shall not be less than 98% of the aggregate principal amount of the Bonds; (v) the net effective interest rate on the Series 2010 Bonds shall not exceed 4.75 %. Section 31. Authorization to Execute Documents. For a period of 180 days following the adoption of this Ordinance, the City Council authorizes the Sale Delegate to execute the Sale Certificate and to execute the Bond Purchase Agreement in accordance with the provisions hereof. The Mayor or City Clerk, or any other duly authorized officer of the City, shall, and they are hereby authorized and directed to, take all actions necessary or appropriate to effectuate the provisions of this Ordinance, including, but not limited to, the execution of the Paying Agent Agreement and the Continuing Disclosure Undertaking, in substantially the forms presented to this meeting of the City Council, with such changes therein, if any, not inconsistent herewith, as are approved by the City (which, once executed by the appropriate City official, shall constitute conclusive evidence of approval of the City), a "Tax Compliance Certificate" or similar certificate describing the City's expectations regarding the use and investment of proceeds of the Series 2010 Bonds and other moneys, an Internal Revenue Service Form 8038 -G with respect to the Series 2010 Bonds, and all other documents and certificates necessary or desirable to effectuate the issuance of the Series 2010 Bonds, the investment of proceeds of the Series 2010 Bonds and the other transactions contemplated hereby. The execution by the Mayor or Mayor Pro Tem of the City or any other duly authorized officer of the City of any document authorized herein shall be conclusive proof of the approval by the City of the terms thereof. Section 32. Authorization of Bond Insurance and Series 2010 Surety Bond. The Underwriter may request, on behalf of the City, the submittal of bids to issue the Bond Insurance Policy. In the event that the Sale Delegate determines, based in part upon information provided by the Underwriter, that the premium bid for issuance of the Bond Insurance Policy is less than the interest cost savings to be realized by the City as a result of the issuance of the Bond Insurance Policy, the Council hereby delegates to the Sale Delegate the authority to execute the Commitment with the Bond Insurer designated by the Sale Delegate, provided that the Bond Insurer shall be listed in The Bond Buyer's Municipal Marketplace Directory —Spring 2010, published by Thomson Media. In the event that a Bond Insurance Policy is to be issued by the Bond Insurer, there is also delegated to the Sale Delegate the authority to determine whether the Series 2010 Reserve Fund shall be funded with a Series 2010 Surety Bond, which determination shall be set forth in the Sale Certificate. The officers of the City are also hereby authorized and directed to take all actions necessary to cause the Bond Insurer to issue the Bond Insurance Policy (if any) in accordance with the Commitment and to issue the Series 2010 Surety Bond (if any) in accordance with the Commitment, including without limitation, payment of the premium(s) due in connection therewith and entering into any authorizing agreement, including a Series 2010 Reserve Policy Agreement. The execution of the Commitment by the Sale Delegate or other authorized officer of the City is hereby ratified and approved. The Sale Delegate is also authorized to set forth in the Sale Certificate such additional terms, provisions and conditions as may be required to cause the Bond Insurer to issue the Bond Insurance Policy and the Series 2010 Surety Bond (if any) in accordance with the Commitment, and the provisions of this Ordinance shall be subject to such provisions, if any, set forth in the Sale Certificate. 4846 -1438- 8486.3 30 Section 33. Approval of Official Statement. The City Council hereby approves the distribution and use of the Preliminary Official Statement relating to the Series 2010 Bonds in connection with the offering of the Series 2010 Bonds and authorizes and directs the City staff to prepare a final Official Statement for use in connection with the sale of the Series 2010 Bonds in substantially the form thereof presented to the City Council at the meeting at which this Ordinance is adopted, with such changes therein, if any, not inconsistent herewith, as are approved by the City Attorney of the City. The Mayor or Mayor Pro Tern is hereby authorized and directed to execute the final Official Statement. Section 34. Application of Supplemental Act. The City Council specifically elects to apply all of the provisions of Title 11, Article 57, Part 2, C.R.S. (as previously defined, the "Supplemental Act'), to the Series 2010 Bonds. Section 35. Limitation of Actions. Pursuant to Section 11 -57 -212, C.R.S., no legal or equitable action brought with respect to any legislative acts or proceedings in connection with the authorization or issuance of the Series 2010 Bonds shall be commenced more than thirty days after the authorization of the Series 2010 Bonds. Section 36. Ratification of Prior Actions. All actions heretofore taken not inconsistent with the provisions of this Ordinance or the Charter by the City Council, the Finance Director, or by the officers and employees of the City directed toward the issuance of the Series 2010 Bonds for the purposes herein set forth are hereby ratified, approved and confirmed. Section 37. Repeal of Inconsistent Resolutions; Contract with Owners of Series 2010 Bonds; Resolution Irrepealable. All ordinances and resolutions, or parts thereof, that are in conflict with this Ordinance are hereby repealed. After the Series 2010 Bonds have been issued, this Ordinance shall be and remain a contract between the City and the Owners of the Series 2010 Bonds and shall be and remain irrepealable until all amounts due with respect to the Series 2010 Bonds shall be fully paid, satisfied and discharged and all other obligations of the City with respect to the Series 2010 Bonds shall have been satisfied in the manner provided herein. Section 38. Headings, Table of Contents and Cover Page. The headings to the various sections and subsections to this Ordinance, and the cover page and table of contents that appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance. Section 39. Severability. It is hereby expressly declared that all provisions hereof and their application are intended to be and are severable. In order to implement such intent, if any provision hereof or the application thereof is determined by a court or administrative body to be invalid or unenforceable, in whole or in part, such determination shall not affect, impair or invalidate any other provision hereof or the application of the provision in question to any other situation; and if any provision hereof or the application thereof is determined by a court or administrative body to be valid or enforceable only if its application is limited, its application shall be limited as required to most fully implement its purpose. 4846 -1438- 8486.3 31 Section 40. Recordation. A true copy of this Ordinance, as adopted by the City Council of the City, shall be numbered and recorded, and its adoption and publication shall be authenticated by the signatures of the Mayor and the City Clerk and by a certification of publication. Section 41. Declaration of Emerge municipal bond prices and interest rates and the need to preserve public property, health, opinion of the City Council, an emergency force and effect upon its passage. ncy and Effective Date. Due to fluctuations in due to currently favorable interest rates and due to peace and safety, it is hereby declared that, in the exists, and therefore this Ordinance shall be in full 4846 -1438- 84863 32 INTRODUCED, READ AND PASSED ON FIRST READING AS AN EMERGENCY MEASURE by the City Council of the City of Aspen at its regular meeting on 2010, as provided by the City's Charter and applicable law. [SEAL] Attest: By City Clerk :A Mayor READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WITHIN 10 DAYS OF SUCH FINAL PASSAGE by the City Council of the City of Aspen at its regular meeting on 2010, as provided by the City's Charter and applicable law. [SEAL] Attest: By City Clerk I� Mayor [signature page to Bond Ordinance] 4846 -1438- 8486.3 33 APPENDIX A No. R- Interest Rate: REGISTERED OWNER: PRINCIPAL SUM: FORM OF SERIES 2010 BOND UNITED STATES OF AMERICA CITY OF ASPEN, COLORADO SALES TAX REVENUE BOND SERIES 2010 Maturity Date: November 1, Original Dated Date: CUSIP: * *CEDE & CO. ** Tax Identification Number: 13- 2555119 ** DOLLARS ** The City of Aspen, Colorado (the "City "), a legally and regularly created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado (the "State ") and the home rule charter of the City (the "Charter ") and political subdivision of the State, for value received, hereby promises to pay to the order of the registered owner named above or registered assigns, solely from the special funds as hereinafter set forth, on the maturity date stated above, the principal sum stated above, in lawful money of the United States of America, with interest thereon from the original dated date stated above, at the interest rate per annum stated above, payable on May 1 and November 1 of each year, commencing November 1, 2010, the principal of and premium, if any, and the final installment of interest on this bond being payable to the registered owner hereof upon presentation and surrender of this bond at the principal office of Wells Fargo Bank, National Association, as Paying Agent (the "Paying Agent'), in Denver, Colorado, and the interest hereon (other than the final installment of interest hereon) to be paid by check or draft of the Paying Agent mailed on the interest payment date to the registered owner hereof as of the close of business on the fifteenth day of the month (whether or not such day is a Business Day) preceding the month in which the interest payment date occurs, except that so long as Cede & Co. is the registered owner of this bond, the principal of, premium, if any, and interest on this bond shall be paid by wire transfer to Cede & Co. This bond is one of an issue of bonds of the City of Aspen, Colorado Sales Tax Revenue Bonds, Series 2010, issued in the principal amount of $ (the "Series 2010 Bonds "). The Series 2010 Bonds are being issued by the City for the purpose of financing the costs of buying and improving trail, recreation and open space properties and ancillary facilities and the funding of a reserve fund surety bond for, and the costs of issuance of, the Series 2010 Bonds, 4846 -1438- 8486.3 pursuant to and in full conformity with the State Constitution and the Charter, the laws of the State, including, in particular, Part 2 of Article 57 of Title 11, Colorado Revised Statutes, as amended and pursuant to an ordinance (the "Ordinance ") adopted by the City Council of the City prior to the issuance hereof. [Insert Redemption Provisions from Sale Certificate] Notice of any redemption of Series 2010 Bonds shall be given by sending a copy of such notice by first class, postage prepaid mail, not less than 30 days prior to the redemption date, to the Owner of each Series 2010 Bond being redeemed. Such notice shall specify the number or numbers of the Series 2010 Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any Series 2010 Bond shall have been duly called for redemption and if, on or before the redemption date, the City shall have set aside funds sufficient to pay the redemption price of such Series 2010 Bond on the redemption date, then such Series 2010 Bond shall become due and payable at such redemption date, and from and after such date interest will cease to accrue thereon. Failure to deliver any redemption notice or any defect in any redemption notice shall not affect the validity of the proceeding for the redemption of Series 2010 Bonds with respect to which such failure or defect did not occur. Any Series 2010 Bond redeemed prior to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled. The Paying Agent shall maintain registration books in which the ownership, transfer and exchange of Series 2010 Bonds shall be recorded. The person in whose name this bond shall be registered on such registration books shall be deemed to be the absolute owner hereof for all purposes, whether or not payment on this bond shall be overdue, and neither the City nor the Paying Agent shall be affected by any notice or other information to the contrary. This bond may be transferred or exchanged, at the principal office of the Paying Agent in Denver, Colorado, for a like aggregate principal amount of Series 2010 Bonds of other authorized denominations ($5,000 or any integral multiple thereof) of the same maturity and interest rate, upon payment by the transferee of a transfer fee, any tax or governmental charge required to be paid with respect to such transfer or exchange and any cost of printing bonds in connection therewith. The Series 2010 Bonds are special, limited obligations of the City payable solely from and secured solely by the sources provided in the Ordinance and shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation. Pursuant to the Ordinance the City has pledged for the payment of the principal of, premium, if any, and interest on the Series 2010 Bonds, and granted a lien for such purpose on the Pledged Revenues, constituting, for each fiscal year, all of the proceeds of the Parks and Open Space Sales Tax (as defined in the Ordinance) after deduction of the reasonable and necessary costs and expenses of collecting and enforcing the Parks and Open Space Sales Tax, if any, the Bond Fund, the Series 2010 Reserve Fund and the Revenue Fund (all as defined in the Ordinance). The Series 2010 Bonds are issued on a parity with the City's Parks and Open Space Sales Tax Revenue Bonds, Series 2001 (the "Series 2001 Bonds "), the City's Sales Tax Revenue Refunding Bonds, Series 2005 (the "Series 2005 Bonds "), the City's Sales Tax Revenue Bonds, Series 2005B (the "Series 2005B Bonds ") and the City's Sales Tax Revenue Refunding Bonds, Series 2009 (the "Series 2009 Bonds "). The City is further authorized by the Ordinance to pledge and grant a lien, on a parity with the lien for the payment of the principal of, premium, if any, and interest on the Series 2010 Bonds, 4846 -1438- 8486.3 A -2 the Series 2009 Bonds, the Series 2005B Bonds, the Series 2005 Bonds and the Series 2001 Bonds, on the Pledged Revenues, the Bond Fund and the Revenue for the payment of the principal of, premium, if any, and interest on additional bonds or obligations (which may or may not be multiple - fiscal year obligations), upon satisfaction of certain conditions set forth in the Ordinance. This bond, including the interest hereon, is payable solely from and secured solely by the special funds provided in the Ordinance and shall not constitute a debt of the City within the meaning of any constitutional or statutory debt limitation or provision. THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE REGISTERED OWNER OF THIS BOND AND THE CITY. THIS BOND IS ONLY EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT STATEMENT IN THIS BOND. The City agrees with the owner of this bond and with each and every person who may become the owner hereof, that it will keep and perform all the covenants and agreements contained in the Ordinance. The Ordinance may be amended or supplemented from time -to -time with or without the consent of the registered owners of the Series 2010 Bonds as provided in the Ordinance. It is hereby certified that all conditions, acts and things required by the State Constitution, the Charter, and the ordinances and resolutions of the City, to exist, to happen and to be performed, precedent to and in the issuance of this bond, exist, have happened and have been performed, and that the Series 2010 Bonds do not exceed any limitations prescribed by the State Constitution, the Charter or the ordinances of the City. This bond shall not be entitled to any benefit under the Ordinance, or become valid or obligatory for any purpose, until the Paying Agent shall have signed the certificate of authentication hereon. [remainder of this page intentionally left blank] 4846 -1438- 8486.3 A -3 IN WITNESS WHEREOF, the City has caused this bond to be executed with the manual or facsimile signature of its Mayor and attested by the manual or facsimile signature of the City Clerk, and has caused the seal of the City to be impressed or imprinted hereon, all as of the date set forth above. [SEAL] CITY OF ASPEN, COLORADO am Mayor Attest: LM City Clerk 4846- 1438 - 8486.3 A -4 CERTIFICATE OF AUTHENTICATION This is one of the Series 2010 Bonds described in the within- mentioned Ordinance. WELLS FARGO BANK, . NATIONAL ASSOCIATION as Paying Agent I� Authorized Signatory Date of Authentication: 4846- 1438 - 8486.3 A -5 [STATEMENT OF INSURANCE] 4846 -1438- 8486.3 A -6 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Please print or typewrite name and address of Transferee) (Tax Identification or Social Security No.) the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the within bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: Signature(s) must be guaranteed by a national bank or trust company or by a brokerage firm having a membership in one of the major stock exchanges. NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within bond in every particular, without alteration or enlargement or any change whatever. TRANSFER FEE MAY BE REQUIRED 4846- 1438 - 8486.3 A -7 PREPAYMENT PANEL The following installments of principal (or portion thereof) of this Bond have been prepaid in accordance with the terms of the Indenture. Date of Principal Signature of Authorized Pre M ment Representative of the Depository 4846- 1438 - 8486.3 A -8 V I I r u mor MEMORANDUM TO: Mayor and Council FROM: Kathryn Koch, City Clerk DATE: July 20, 2010 RE: Ordinance #19, Series of 2010 — Proposed Charter Amendment Defining Publication Resolution #57, 2010 on your action items would refer to the voters this proposed ordinance to amend the City Charter changing the definition of publication. The Charter currently requires ordinances be published in full if an ordinance is adopted on first reading and by title after final passage. Staff feels publication of ordinances in full is not the best use of resources. Costs for publication of ordinances in the newspaper are between $15,000 and $20,000 /year. Proposed ordinances are currently available online with Council agenda. If adopted, this Charter amendment would allow when ordinances are required to be published in full or by title, it may be done by posting to the city's website. Alternatives: Council can chose not to refer this Charter amendment to the voters and continue publishing ordinances in full adopted after first reading. Motion: I move to read Ordinance #19, Series of 2010. I moved to adopt Ordinance #19, Series of 2010, on first reading. ORDINANCE NO. f (Series of 2010) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING SECTION 4.10 OF THE CITY OF ASPEN HOME RULE CHARTER BY THE ADDITION OF A NEW SUBSECTION (h) TO PERMIT THE PUBLICATION OF ORDINANCES BY POSTING ON THE CITY OF ASPEN'S INTERNET WEBSITE. WHEREAS, the City Council has determined that the Home Rule Charter requirement that ordinances be published in newspapers has proven to be a great expense to the City of Aspen without appreciably providing a good method for informing the public of proposed legislation before the City Council; and WHEREAS, the City Council has determined that the publication of ordinances on the City's intemet website instead of once - per -week publication in a newspaper would offer members of the public a more convenient and effective method to read proposed and adopted ordinances of the city of Aspen; and WHEREAS, Section 13.10 of the Home Rule Charter authorizes the City Council to propose amendments to the City Charter in accordance with the State Constitution; and WHEREAS, the City Council desires to amend the Home Rule Charter as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That Section 4.10 of the Aspen Home Rule Charter shall be and hereby is amended by the addition of a new subsection (h) to read as follows: (h) Whenever an ordinance is required to be published in full or by title pursuant to this Article N of the Aspen Home Rule Charter, it may be made by posting the same on the City's intemet website, www.asnenyitkin.com or successor website. Said publication shall be made available for viewing by the public for a minimum of 30 days. Section 2 This ordinance shall become effective on January 1, 2011, provided that the electors of the City approve the same at the special municipal election on November 2, 2010. Section 3 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 5 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. A public hearing on the ordinance shall be held on the day of 2010, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the day of 2010. Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk PA FINALLY adopted, passed and approved this day of 2010. Michael C. Ireland, Mayor ATTEST: Kathryn S. Koch, City Clerk JPW -7/16/ 2010 -G: \john\ word \ords \charter -amd- 2010 - notice.doc Villa MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Jennifer Phelan, Community Development Deputy Directo<P RE: 308 E. Hopkins Avenue— Resolution No.6 Series 2010, Public Hearing MEETING DATE: July 26, 2010 APPLICANT /OWNER: Ute City Restaurant. REPRESENTATIVE: Charles Cunniffe Architects and Vann Associates. LOCATION: 308 E. Hopkins Avenue, Lots M and N, Block 80, City and Townsite of Aspen. CURRENT ZONING & USE CC, Commercial Core. PROPOSED LAND USE: The Applicant is requesting Temporary Use approval to have roll down sides on an existing canopy that shelters the outdoor dining area at Ute City Restaurant. The affected area is designated Public Amenity space that is required by zoning. Public Amenity spaces may not be screened by walls unless approved through Temporary Use. HISTORIC PRESERVATION COMMISSION RECOMMENDATION: The subject property is located within the Commercial Core Historic District. HPC has granted Minor Development approval for the roll down sides, with conditions. STAFF RECOMMENDATION: Staff recommends that Council grant the Temporary Use approval, with conditions. Photo of the outdoor dining area at Ute City Restaurant REQUEST OF COUNCIL: City Council is asked to grant a Temporary Use Permit, pursuant to Land Use Code Section 26.450.030, for the use of roll down sides on an existing canopy that shelters the outdoor dining area for the Ute City Restaurant. BACKGROUND: 308 E. Hopkins is a redevelopment of the former La Cocina property. The new restaurants on the site opened for business in late 2009. The approved project included a seasonal canopy over the outdoor dining, which is located within the required "Public Amenity" space. The applicant is requesting approval to add roll down sides for use during inclement weather. HPC reviewed the sides according to the "City of Aspen Commercial, Lodging and Historic District Design Objectives and Guidelines" and approved the flaps with conditions. This project was required to design 25% of the property as an on -site "Public Amenity" space. Other options, such as a comparable improvement made in the downtown area, or a cash in lieu payment, were possible. The applicant chose to provide 11.5% of the total property area as "Public Amenity" and requested that HPC waive the rest of the requirement, finding that the proposal created an adequate mix of uses to enliven the streetscape. HPC granted this approval. As a property located in the Commercial Core Historic Overlay, the proposed roll down flaps were reviewed by the Historic Preservation Commission. The Commission voted 4 to 2 to allow the flaps with conditions. Specifically, the following conditions were included in the approval: 1. The roll down sides are only approved for the south fagade. 2. The roll down sides are only allowed to be dropped during high wind, rain, or snow. They may not be dropped during non - business hours, or at times when no diners are occupying the outdoor dining area. 3. The roll down sides may only be installed for use between May 15` and October 15 of each year. 4. The roll down sides require Temporary Use approval by City Council. HPC recommends that, if Council grants the Temporary Use currently scheduled for review in July 2010, the approval should expire on October 15, 2011. This will allow enough time to evaluate the roll down sides, and compliance with the conditions of approval, before allowing them for summer seasons beyond 2011. 5. This HPC Minor Development approval is site specific and sets no precedent for other applications. Public Amenity areas are intended to be creative, well- designed public spaces and settings that contribute to an attractive, exciting, and vital downtown retail district and a pleasant pedestrian shopping and entertainment atmosphere. Public Amenity spaces are required to be open to the sky. The only exceptions are temporary or seasonal coverings, such as umbrellas and retractable canopies. Trellises, like the one at Cantina, are also allowed. Seasonal coverings are not permitted to have walls or sides unless they are approved as a Temporary Use. DISCUSSION: The Applicant is requesting a Temporary Use permit for the roll down sides on two sides of the approximately 18' by 24' Public Amenity space that is used for outdoor dining. The Applicant requests that the temporary use be until October 31, 2010. 2 Outdoor dining adds greatly to the character of downtown, both for diners and by- passers. Restaurants throughout town have creatively situated tables on private property, sidewalks or the pedestrian malls to make the most of their location. 85% of the approximately 28 restaurants with outdoor dining use umbrellas and free standing heaters to keep guests comfortable when weather changes. Anyone attempting to do business or hold an event outside in Aspen faces a challenge with the ever - changing weather. In general, Community Development staff believes that the more successful examples of outdoor dining in town are flexible spaces, with movable tables and adjustable umbrellas which can make the most of the circumstances. This type of arrangement is in line with language within the design guidelines (Guideline 6.6, page 100) that states that street facing "Public Amenity" space must be open to the sky. The only exception is temporary and seasonal coverings, such as umbrellas and retractable canopies (Section 26.575.030.F) Staff believes the intention of this exception is to provide adequate protection from weather in a permanently unenclosed space. A Temporary Use approval that would allow an outdoor dining area to be enclosed with a roof and walls might be appropriate for an isolated, special event, but otherwise has proven to evolve in to an addition that is left in place, with sides down, for much of the year. Large canopies can increase the bulk of a building. They tend to create the appearance of additional enclosed space, and, particularly when drop down sides are used, they can take away from the public experience. They are typically constructed of materials that are inferior to the surrounding buildings. Staff is concerned about the permanency of these types of structures and recently conducted a work session with Council on the topic as they impact the streetscape and have potential growth management implications in relation to additional employee generation. Council indicated that they would like to have staff come back with potential code language to address these types of structures. RECOMMENDED ACTION: Staff recommends approval of a Temporary Use Permit for the roll down from May 15 until October 15, expiring on October 15 2011, only for the south facing fagade and only to be used during inclement weather as granted by the HPC. PROPOSED MOTION: "I move to approve Resolution No.5—&, Series of 2010, approving the request for a Temporary Use Permit at 308 E. Hopkins for the purpose of permitting roll down flaps." CITY MANAGER COMMENTS: ATTACHMENTS: EXHIBIT A – Review Criteria and Staff Findings EXHIBIT B - Photos EXHIBIT C – Draft Historic Preservation Commission resolution EXHIBIT D - Application k' RESOLUTION NO. _J `' (Series of 2010) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, GRANTING A TEMPORARY USE PERMIT TO ALLOW FOR THE PLACEMENT OF A ROLL DOWN AT 308 E. HOPKINS AVE. (UTE CITY RESTAURANT), CITY OF ASPEN, COLORADO Parcel ID 273707329007 WHEREAS, pursuant to Section 26.450 of the Aspen Municipal Code, the Applicant, Jerome Ventures, LLC, has submitted an application for a Temporary Use Permit to place roll down flaps at 308 E. Hopkins Ave. to protect outdoor diners during inclement weather; and, WHEREAS, the Applicant requests approval for a Temporary Use Permit to expire on October 31, 2010; and, WHEREAS, City Council finds that the proposed temporary use is consistent with the character and existing land uses of the surrounding parcels and neighborhood and that granting the temporary use will not adversely impact the neighborhood; and WHEREAS, City Council conducted a duly noticed public hearing on July 26, 2010; and, WHEREAS, City Council has reviewed and considered the temporary use request under the applicable provisions in the Municipal Code, has reviewed and considered the recommendation of the Community Development Director, the applicable referral agencies, and has taken and considered public comment; and, WHEREAS, City Council finds that the temporary use permit meets or exceed all applicable development standards; 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: In accordance with Section 26.450 of the Aspen Municipal Code, the City Council of the City of Aspen, Colorado, does hereby grant a Temporary Use Permit to place roll down flaps at 308 E. Hopkins with the following conditions: _ 1. The roll down sides are only approved for the south fagade. Resolution No._, Series of 2010 Page I 2. The roll down sides are only allowed to be dropped during high wind, rain, or snow. They may not be dropped during non - business hours, or at times when no diners are occupying the outdoor dining area. 3. The roll down sides may only be installed for use between May 15` and October 15 of each year. 4. Notwithstanding potential future code amendments that could prohibit the roll down flaps, Council grants the Temporary Use to expire on October 15, 2011. This will allow enough time to evaluate the roll down sides, and compliance With the conditions of approval, before allowing them for summer seasons beyond 2011. 5. This HPC Minor Development approval is site specific and sets no precedent for other applications. Section 2: 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 construed and concluded under such prior ordinances. Section 3: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED, July 26 10, 2010, at a public hearing before the City Council of the City of Aspen, Colorado. Michael C Ireland, Mayor ATTEST: City Attorney Kathryn S. Koch, City Clerk EXHIBIT A 26.450.030 CRITERIA APPLICABLE TO ALL TEMPORARY USES. Section 26.450.030 of the City Land Use Code provides that the City Council shall consider the following criteria, as applicable, when reviewing development applications for a temporary use: A. The location, size, design, operating characteristics, and visual impacts of the proposed use. The proposed temporary use is for roll down sides to protect diners within the Public Amenity space during inclement weather. Visual impacts will be brief and only during inclement weather. B. The compatibility of the proposed temporary use with the character, density and use of structures and uses in the immediate vicinity. Many of the surrounding restaurants use free - standing umbrellas to provide some shelter to diners. C. The impacts of the proposed temporary use on pedestrian and vehicular traffic and traffic patterns, municipal services, noise levels, and neighborhood character. The flaps will not impact pedestrian or vehicular traffic and traffic patterns, municipal services, and noise levels. D. The duration of the proposed temporary use and whether a temporary use has previously been approved for the structure, parcel, property or location as proposed in the application. The temporary roll down flaps are proposed to be removed no later than October 15, 2010, E. The purposes and intent of the zone district in which the temporary use is proposed. The property is zoned Commercial Core (CC). Retail and restaurants uses are a permitted use within the subject zone district. F. The relation of the temporary use to conditions and character changes which may have occurred in the area and zone district in which the use is proposed. Many restaurants in the vicinity take advantage of outdoor dining opportunities. In general if tables are protected they tend to be from individual umbrellas; however, a handful of restaurants have begun to install roll down flaps G. How the proposed temporary use will enhance or diminish the general public health, safety or welfare. The roll downs will be used seasonally and only during inclement weather to provide additional shelter for outside diners. The roll down will not affect the general public's health, welfare or safety. ��ti � s s —_ _, �� l \ a� LL \ 7 \� \ tl'q {�5. \ + / e 8 Z o� �?_, �a +;� �a8. � 9 om w � � m ��.. m - / � �� �,_ ___ -� ,,,,�, oi_� �� 0 _ pq < �� `` `� _ _ ` /`````�' t M�ei p4 d / ' e ��e� �� I '�` V . U� S � cN g bv�o� Z / � S uy / Y ve / \ � \ F / 6e 4��b a � W � "s s CANOPY CURTAINS ROLLED CANOPY - ROLLED DOWN 0 R a] I :111w, V4 RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) APPROVING AN APPLICATION FOR MINOR DEVELOPMENT FOR THE PROPERTY LOCATED AT 308 E. HOPKINS AVENUE, LOTS M AND N, BLOCK 80, CITY AND TOWNSITE OF ASPEN, COLORADO RESOLUTION NO. 7, SERIES OF 2010 PARCEL ID: 2737 - 073 -29 -007 WHEREAS, the applicant, Ute City Restaurant, represented by Charles Cunniffe Architects and Vann Associates, requested approval for roll down canopy sides to surround the outdoor dining area located at 308 E. Hopkins Avenue, Lots M and N, Block 80, City and Townsite of Aspen, Colorado, in inclement weather. The property is located within the Commercial Core Historic District; 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 Minor Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project's conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.0 of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, Amy Guthrie, in her staff report dated July 14, 2010, performed an analysis of the application based on the standards, found that the review standards and the "City of Aspen Commercial, Lodging and Historic District Design Objectives and Guidelines" were not met, and recommended denial; and WHEREAS, during a duly noticed public hearing on July 14, 2010, the Historic Preservation Commission considered the application, found the application was consistent with the applicable review standards and approved the application, with conditions, by a vote of 4 to 2. NOW, THEREFORE, BE IT RESOLVED: That HPC hereby approves the proposed Minor Development for the property located at 308 E. Hopkins Avenue, Lots M and N, Block 80, City and Townsite of Aspen, Colorado subject to the following: 1. The roll down sides are only approved for the south fagade. 2. The roll down sides are only allowed to be dropped during high wind, rain, or snow. They may not be dropped during non- business hours, or at times when no diners are occupying the outdoor dining area. 3. The roll down sides may only be installed for use between May 15` and October 15` of each year. 4. The roll down sides require Temporary Use approval by City Council. HPC recommends that, if Council grants the Temporary Use currently scheduled for review in July 2010, the approval should expire on October 15, 2011. This will allow enough time to evaluate the roll down sides, and compliance with the conditions of approval, before allowing them for summer seasons beyond 2011. 5. This HPC Minor Development approval is site specific and sets no precedent for other applications. APPROVED BY THE COMMISSION at its regular meeting on the 14 day of July, 2010. Michael Hoffman, HPC Chair Approved as to Form: Jim True, Special Counsel ATTEST: Kathy Strickland, Chief Deputy Clerk VANN ASSOCIATES, LLC Planning Consultants July 6, 2010 HAND DELIVERED Ms. Jennifer Phelan Aspen Community Development Department 130 South Galena Street Aspen, CO 81611 Re: Ute City Restaurant Temporary Use Application Dear Jennifer: RECEIV JUL 01 2% Gilt Ul" y�gNEN CDMMUNITY DEVELOPMENT Please consider this letter an application for a Temporary Use for the Ute City restaurant which is located at 308 East Hopkins Avenue (see Exhibit 1, Pre- Applica- tion Conference Summary, attached hereto). The application is submitted pursuant to Section 26.450.060 of the Aspen Land Use Regulations (the "Regulations ") by Jerome Ventures, LLC (hereinafter "Applicant "), the owner of the property (see Exhibit 2, Title Policy). Permission for Vann Associ- ates, LLC, Planning Consultants, to represent the Applicant is attached as Exhibit 3. A land use application form, an application fee agreement, and a list of property owners located within 300 feet of the property are attached as Exhibits 4, 5 and 6, respectively. Background The building housing the Ute City restaurant received conceptual major development approval from the Historic Preservation Commission ( "HPC ") on July 12, 2006 pursuant to Resolution No. 18, Series of 2006. The HPC exempted the project from the City's mountain view plane regulations based on a finding of no significant impact. The HPC also granted commercial design review approval to the project, approved a reduction in the project's required pedestrian amenity space, and approved the demolition of the existing structure. A cash -in -lieu payment to offset the pedestri- an amenity space reduction was made by the Applicant prior to issuance of the project's building permit. 230 East Hopkins Ave. • Aspen, Colorado 81611 • 970/925 -6958 " Fax 970/920 -9310 vannassociates@comcast.net Ms. Jennifer Phelan July 6, 2010 Page 2 Growth management allotments for the project's two free market residential units and its three on -site affordable housing units were granted by the Planning and Zoning Commission ( "P &Z ") on April 17, 2007 pursuant to Resolution No. 18. Final HPC approval was granted on May 9, 2007 pursuant to Resolution No. 19. Subdivision approval and approval to condominiumize the project upon substantial completion of construction was granted by the City Council pursuant to Ordinance No. 27 on July 9, 2007. A growth management quota system allotment for the building's basement commercial space was granted by the P &Z on November 6, 2007 pursuant to Resolution No. 30. An application for a Certificate of Appropriateness for Minor Development was submitted by the Applicant on June 25, 2010. The application was required pursuant to the attached Pre - Application Conference Summary, and is scheduled for review by the Historic Preservation Commission on July 14, 2010. Proposed Temporary Use The Ute City restaurant building's approved pedestrian amenity space consists of an approximately 18 foot by 24 foot patio area located adjacent to the Hopkins Avenue sidewalk and the Restaurant's streetfront entrance. The patio is presently covered with a removable awning and is used for seasonal outdoor dining. The Applicant wishes to install drop down/roll up clear plastic canopy walls to enclose the street and east sides of the patio during inclement weather (i.e., wind, rain and snow) to avoid having to move diners indoors during such conditions. The Applicant would like to be able to use the canopy walls from approximately May 1 to October 31. Review Requirements Pursuant to paragraph 10. of Section 26.575.030.F. of the Regulations, required public amenity space may be used for commercial restaurant purposes. The tempo- rary and seasonal covering of such spaces (e.g., umbrellas, canopies, etc.) are permitted pursuant to paragraph 2., and do not reduce the property's public amenity space or count as floor area. Pursuant to paragraph 3., plastic canopy walls and similar devices designed to enclose such spaces are also permitted subject to City Council approval as a temporary use pursuant to Section 26.450. Pursuant to Section 26.450.050 of the Regulations, temporary uses may be granted for a period not to exceed 180 days from the date upon which the Council approves the use. For seasonal uses such as that requested, the Council may also approve a number of annual occurrences up to maximum of ten years. The applicable review Ms. Jennifer Phelan July 6, 2010 Page 3 criteria, and the proposed temporary use's compliance therewith, are summarized below. 1. The location, size, design, operating characteristics, and visual impacts of the proposed use. The area to be enclosed measures approximately 24 feet adjacent to the Hopkins Street sidewalk. The proposed drop down/roll up canopy walls will consist of clear plastic which will only be lowered during periods of adverse weather (i.e., wind, rain and snow). The outdoor dining area will remain visible from both the sidewalk and Hopkins Avenue when the walls are lowered. 2. The compatibility of the proposed temporary use with the charac- ter, density and use of structures and uses in the immediate vicinity. East Hopkins Avenue between Mill and Monarch Street has become a major dining center within the City with the proliferation of numerous restaurants on both sides of the Avenue. The restaurants on the north side of the Avenue (i.e., LuLu Wilson, Ute City and Elevation), and their south facing outdoor dining areas, are particularly popular in the summer and fall months as are similar areas at Campo di Fiore, Jimmy's and Cache Cache on the Avenue's south side. All of these restaurants utilize umbrellas, canopies and, in the case of LuLu Wilson and Jimmy's, drop down/roll up walls to address inclement weather conditions. 3. The impacts of the proposed temporary use on pedestrian and vehicular traffic and traffic patterns, municipal services, noise levels, and neighborhood character. The proposed temporary use will have no adverse impact on vehicular or pedestrian traffic, municipal services, and noise levels. Given the anticipated intermittent use of the canopy walls, the proposed temporary use should have no adverse impact on the neighborhood's character. 4. The duration of the proposed temporary uses and whether a tempo- rary use has previously been approved for the structure, parcel, property or location as proposed in the application. The proposed temporary uses is seasonal in nature, limited to the summer and early fall months, and is intermittent in its use as the canopy walls will only be lowered during inclement weather. To the best of our knowledge, no temporary uses have previously been approved for the property. Ms. Jennifer Phelan July 6, 2010 Page 4 5. The purpose and intent of the zone district in which the temporary use is proposed. The property is zoned CC, Commercial Core, in which restaurants are a use permitted by right. 6. The relation of the temporary use to conditions and character changes which may have occurred in the area and zone district in which the use is proposed. See criteria 2., above. 7. How the proposed temporary use will enhance or diminish the general public health, safety or welfare. The proposed temporary uses will significantly contribute to the public's enjoyment of the dining experience provided at the Ute City restaurant during periods of inclement weather. Should you have any questions, or require additional information, please do not hesitate to call. Yours truly, d: \oldc \bus \city. app\app55 8 10. tup Attachments CITY OF ASPEN PRE - APPLICATION CONFERENCE SUMMARY PLANNER: Jessica Garrow, 970.429.2780 PROJECT: Temporary Canopy Walls REPRESENTATIVE: Sunny Vann, vannassociates(cDcomcast.net 925.6958 OWNER: TYPE OF APPLICATION: Temporary Seasonal Use DESCRIPTION: EXHIBIT DATE: 6/22/2010 The owner of Silver City Grill is interested in adding walls to the existing temporary canopy covering the public amenity space. As part of the original redevelopment approval, HPC allowed a temporary, seasonal removable canopy over the public amenity space. The owner is now interested in adding walls to the canopy. This requires approval of a Certificate of Appropriateness for a Minor Development by HPC because the property is located in the Historic District. In addition, following HPC review, City Council for a Temporary Use is required. The City Council can approve a temporary use for no more than 180 days per year. Land Use Code Sectionls 26.304 Common Development Review Procedures 26.415.070.0 Certificate of Appropriateness for Minor Development 26.450 Temporary and Seasonal Use Below is a link to the Land Use Code for your convenience. hftp://www.aspenpitkin.com/Departments/Clerk/Municipal-Code / Review by: Staff for complete application Referral agencies for technical considerations HPC (Final Decision Making Body for Minor Development) City Council (Final Decision Making Body for Temporary Use) Public Hearing: Yes at HPC and at City Council Planning Fees: $1,470.00 Deposit for 6 hours of staff time (additional staff time required is billed at $245 per hour) Total Deposit: $1,470 Total Number of Application Copies: 12 Copies Includes appropriate drawing for board review (HPC = 12; PZ = 10; CC = 7; Referral Agencies = 1 /ea.; Planning Staff = 2) To apply, submit the following information F Total Deposit for review of application. Pre - application Conference Summary. Q A letter from the property owner consenting to the application F Applicant's name, address and telephone number, contained within a letter signed by the applicant stating the name, address, and telephone number of the representative authorized to act on behalf of the applicant. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owners right to apply for the Development Application. Q A site plan depicting the proposed layout and the project's physical relationship to the land and its surroundings. Completed Land Use application and signed fee agreement. (available at: http: / /www.aspenDitkin.com /Portals /0 /docs /City /Comdev/ Apps %20and %2OFees /landuseappform pdf) 0 An 8 1/2" x 11" vicinity map locating the subject parcels within the City of Aspen. 0 Existing and proposed elevations of the development 0 A written description of the proposal and a written explanation of how a proposed development complies with the review standards relevant to the development application EJ 12 copies of the Land Use Application and all additional letters, maps, and agreements. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. OCT.11. 2006 10:32AM OATES KNEZEVICH GARDENSWARTZ U Owner's Po Fidelity National little Insurance Company A Stock Compm7 Policy Number 1312- 588596 u OWNER'S POLICY OF TITLE INSURANCE EXHIBIT Z SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDI770NSAND STTPULA770NS, FIDE7ITYNATIONAL 777ZE INSURANCE COMPANY, a.Cal&rnia corporation, herein called the C insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of.• 1. Title to the estate or interest described in Schedule A being vested other than qs slated therein; 2. Any defect in or lien or encumbrance on the title; 3. Unmarketabiliry of the title; 4. Lack of a right of access to and from the land 77te Company will also pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured but only to the extent provided in the Conditions and Stipulations. IN WITNESS WHEREOF, FIDEZET NATIONAL 7772,E INSURANCE COMPANY has caused this policy to be signed and sealed by its duly authorized officers as of Date of Policy shown in Schedule A. r rtt�camgra�,l�. 801 H liepluo, Aw IIid Flmr Aepne, (:olra'ado 81611 97"n- 170"7"" -"27 Fu 877 - 2173158 ToD F. Fidelity National Title Insurance Company I FORM :*,: Time Oct. 11. 4:29PM p aC,- , : >Foncy Of,r 7.Ss Countecni Authorized Signature (P"n prim reamc hc:pw I FORM :*,: Time Oct. 11. 4:29PM p aC,- , : >Foncy Of,r 7.Ss OCT. 11.2006 10:33AM OATES KNEZEVICH GARDENSWARTZ NO.8499 P. 5 � SCHEDULE A —OWNER'S POLICY CASE NUMBER DATE OF POLICY AMOUNT OF INSURANCE POLICY NUMBER PCT189%F9 September 30, 2005 @ 3:23 PM 54,000,000.00 1312- 588596 r 1. NAME OF INSURED: JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY 2. THE ESTATE OR INTEREST IN THE LAND HEREIN AND WHICH IS COVERED BY THIS POLICY IS: IN FEE SIMPLE 3. THE ESTATE OR INTEREST REFERRED TO HEREIN IS AT DATE OF POLICY VESTED IN: JW VENTURES, LLC, A COLORADO LIMITED LIABILITY COMPANY 4. THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE COUNTY OF, STATE OF COLORADO AND IS DESCRIBED AS FOLLOWS: LOTS M AND N, BLOCK 80, CITY AND TOW NSITE OF ASPEN. F n i I I 1 H POLICY NUMBER SHOWN ON 7HI@ SCHEDULE MUST AGREE W11 THE PREPRINTED NUMBER ON THE COVER SHEE. i Received Time Oct.11. 4 :29PM P)TIUN COUNTY TITLE, INC. 601 E. HOPIQNS AVE. ASPEN, COLORADO 91611 (970) 9251766/(970)-925-6527 FAX 1 H POLICY NUMBER SHOWN ON 7HI@ SCHEDULE MUST AGREE W11 THE PREPRINTED NUMBER ON THE COVER SHEE. i Received Time Oct.11. 4 :29PM EXHIBIT July 6, 2010 Ms. Jennifer Phelan Community Development Department 130 South Galena Street Aspen, Colorado 81611 Re: Permission to Represent Dear Ms. Phelan: Please consider this letter authorization for Sunny Vann of Vann Associates, LLC, Planning Consultants, to represent me in the processing of my application for a Tempo- rary Use for the Ute City restaurant which is located at 308 East Hopkins Avenue.Mr. Vann is hereby authorized to act on my behalf with respect to all matters reasonably pertaining to the aforementioned application. Should you have any questions, or if I can be of any further assistance, please do not hesitate to call. Yours truly, UTE CITY RESTAURANT b Walt Harris 308 East hopkins Avenue Aspen, Co 81612 (970) 274 -4556 d: \oldc \bus \c ity.1tr \Itr558I O.jp 1 LAND USE APPLICATION APPLICANT: EXHIBIT Name: Location: t� ��/�J ✓� /`� (Indicate street address, lot & block number, legal description where ap Parcel ID #(REQUIRED) REPRESENTATIVE: Name: Address: Phone #: 7e — IrO; Name: ` ��� ��lY� Address: ,4.,W ,4'5 Phone #: Z 3 6 t TYPE OF APPLICATION: (please check all that apply): ❑ Conditional Use ❑ Conceptual PUD ❑ Conceptual Historic Devt. ❑ Special Review ❑ Final PUD (& PUD Amendment) ❑ Final Historic Development ❑ Design Review Appeal ❑ Conceptual SPA ❑ Minor Historic Devt. ❑ GMQS Allotment ❑ Final SPA (& SPA Amendment) ❑ Historic Demolition ❑ GMQS Exemption ❑ Subdivision ❑ Historic Designation ❑ ESA — 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Small Lodge Conversion/ Margin, Hallam Lake Bluff, condominiumization) Expansion Mountain View Plane ❑ Lot Split Temporary Use ❑ Other: F Lot Line Adiustment n Text/Map Amendment EXISTING CONDITIONS: i PROPOSAL: Haw you attached the following? FEES DUE: $ - Application Conference Summary Attachment #1, Signed Fee Agreement R esponse to Attachment 43, Dimensional Requirements Form esponse to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards EXHIBIT CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT Agreement for Payment of City ' of Aspen , De v e l opment Application Fees CITY OF ASPEN (hereinafter CITY) and (hereinafter APPLICANT) AGREE AS FOLLOWS: I . _APPLICANT has submitted to CITY an application for (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 57 (Series of 2000) establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning or and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a dPt�rr��ation of application completeness, APPLICANT shall pay an initial deposit in the amount of $ / which is for _C hours of Community Development staff time, and if actual record d costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $220.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN APPLICANT Chris Bendon Community Development Director g:\support\forms\agrpayas.doe 11/30/04 Date: Billing Address and Telephone Number: Required Easy Peel Labels Use Avery® TEMPLATE 5160 1000 EAST HOPKINS LLC 215 S MONARCH SUITE 104 ASPEN, CO 81611 ® i A See Instruction Sheet i gzq AFeed Paper for Easy Peel FeatureA Im AEP FAMILY LLLP 3.9348818 C/O ANDREW V HECHT GARFIELD & HECHT PC 601 E HYMAN AVE . CO 81611 BENTLEYS AT THE WHEELER PO BOX 10370 ASPEN, CO 81612 CARLS REAL ESTATE LLC PO BOX 1365 ASPEN, CO 81612 CLARK FAMILY TRUST PO BOX 362 ASPEN, CO 81612 COLLINS BLOCK LLC 205 S GALENA ST ASPEN, CO 81611 DAVID DOGWOOD LLC 13.5% C/O LOW ELL MEYER PO BOX 1247 ASPEN, CO 81612 DAVIS HORN INCORPORATED 50% INT 215 S MONARCH SUITE 104 ASPEN, CO 81611 ELLIES BUILDING LLC 96.830559% 601 E HYMAN ASPEN, CO 81611 303 EAST MAIN LLLP PO BOX 8016 ASPEN, CO 81612 ALPINE PETROLEUM LLC 435 E MAIN ST ASPEN, CO 81611 BERNSTEIN JEREMY M PROFIT SHARING PLAN 610 NORTH ST ASPEN, CO 81611 CITY OF ASPEN ATTN FINANCE DEPT 130 S GALENA ST ASPEN, CO 81611 CLARKS ASPEN LLC 818 SOUTH MAIN ST BLANDING, UT 84511 COLORADO MOUNTAIN NEWS MEDIA CO PO BOX 1927 CARSON CITY. 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ST ASPEN, CO 81611 COLLINS BLOCK CONDO ASSOC COMMON AREA 204 S MILL ST ASPEN, CO 81611 CRYSTAL PALACE ACQUSITIONS LLC C/O LINDEN NELSON 2100 E MAPLE #200 BIRMINGHAM, MI 48025 DAVIS HORN INCORPORATED 215 S MONARCH #104 ASPEN, CO 81611 DOLE MARGARET M C/O FIRST NATIONAL BANK OF CEDARIDGE PO BOX 8455 ASPEN, CO 81612 EXPLORE BOOKSELLERS & BISTRO R E LLC 300 CRESCENT CT #1000 DALLAS, TX 75201 GITLITZ GRANTOR LLLP 11.5% 73 SIPPRELLE DR PARACHUTE, CO 81635 ConsulEez W f6ulBe wwwavefyA m d'instruction 1-800-GO-AVERY Easy Peel labels A See instruction Sheet Use Avery® TEMPLATE 5160 jFeed Paper for Easy Peel Featurel �A� ®5160® ® i GOLDEN ARTS CONNECTION LLC GOLDSTEIN PETER & ALAN GOODING RICHARD L DBA ASPEN INTERNATIONAL ART 150 METRO PK #2 4800 S HOLLY ST 213 S MILL ST ROCHESTER, NY 14623 ENGLEWOOD, CO 80111 ASPEN, CO 81611 GRAND SLAM HOLDINGS LLC C/O CARL B LINNECKE CPA PC 215 S MONARCH ST #101 ASPEN, CO 81611 HART GEORGE DAVID & SARAH C PO BOX 5491 SNOWMASS VILLAGE, CO 81615 HOFFMAN JOHN & SHARON 210 W 5TH ST APT 211 KANSAS CITY, MO 64105 -1166 ISIS THEATRE CONDO ASSOC COMMON AREA 406 E HOPKINS AVE ASPEN, CO 81611 JW VENTURES LLC PO BOX 8769 ASPEN, CO 81612 KATIE REED PLAZA CONDO ASSOC COMMON AREA 301 E HOPKINS AVE ASPEN, CO 81611 MAIN & MILL LLC 34.28% C/O LOW ELL MEYER PO BOX 1247 ASPEN, CO 81612 MINERS REAL ESTATE LLC PO BOX 1365 ASPEN, CO 81612 MONARCH ASPEN LLC 50% PO BOX 1247 ASPEN, CO 81612 HALL CHARLES L PO BOX 1819 ASPEN, CO 81612 HECHT ANDREW V.027624071% 601 E HYMAN AVE ASPEN, CO 81611 ISIS BUILDING LLC 205 S MILL ST # 301A ASPEN, CO 81611 JEROME VENTURES LLC 540 W MADISON ST #2500 CHICAGO, IL 60661 KANTZER TAYLOR MICHAEL FAMILY TRUST #1 216 SEVENTEENTH ST MANHATTAN BEACH, CA 90266 HANSEN CANTINA LLC 15.72% PO BOX 9343 ASPEN, CO 81612 HILLIS OF SNOWMASS INC 193 E GORE CREEK DR VAIL, CO 81657 ISIS GROUP C/O COURTNEY LORD 9 PYRAMID RD ASPEN, CP $1611 , JOHNSON PETER C & SANDRA K 51 OVERLOOK DR ASPEN, CO 81611 -1008 KATIE REED BUILDING LLC C/O KATIE REED MANAGEMENT 418 E COOPER AVE ASPEN, CO 81611 ct KELLY GARY KREVOYo 1 SUSANNE SEPARATE PROP PO BOX 2356 TRSt 50 /o ASPEN, 12 81612 2311 LA MESA DR SANTA MONICA, CA 90402 MEEKER RICHARD J AND ALLISON D 0752 MEADOWOOD DR ASPEN, CO 81611 MILL STREET PLAZA ASSOC LLC C/O CAPMARK INC 200 WITMER RD HORSHAM, PA 19044 -6657 MMWCRB#2 7.57% 595 S BROADWAY #200 DENVER, CO 80209 MONARCH BUILDING LLC PO BOX 126 WOODY CREEK, CO 81656 MONARCH & HOPKINS LLC 50% PO BOX 1247 ASPEN, CO 81612 MOTHER LODE INVESTORS LLC 620 E HYMAN AVE #1 E ASPEN, CO 81611 td*wttes fadles 3 peler A consultez la feuille www.averyaom Utilisez le gabark AVERY® 5160 Sens de chargemeM d'instruction 1480460 -AVERY Easy Peel labels Use Avery® TEMPLATE 5160® MSJ PROPERTIES LLC 50% PETERSON BROOKE A 50% 302 E HOPKINS AVE ASPEN. CO 81611 ORR ROBERT L 500 PATTERSON RD GRAND JUNCTION, CO 81506 ® 1 A See Instruction Sheet s i 1Feed Paper �� for Easy Peel Feature! ® ©AVERY ®5760® 1 MTN ENTERPRISES 80B OBRIEN MAUREEN C/O HILLIS OF SNOWMASS 1370 MAIN ST 193 GORE CREEK DR CARBONDALE, CO 81623 VAIL, CO 81657 OSA TRUST 50% C/O KREVOY SUSANNE BELZBERG 2311 LA MESA DR SANTA MONICA, CA 90402 RACZAK JOSEPH S & JANET L SEGUIN BUILDING CONDO ASSOC COMMON AREA 0234 LIGHT HILL RD SNOW MASS, CO 81654 304E ASPEN, , CO C8 O AVE 81611 SSM LAND AQUISITION CO LLC TOM THUMB BUILDING CONDO ASSOC 2121 KIRBY DR #99 COMMON AREA HOUSTON, TX 77019 WARREN DOGWOOD LLC 13.5% VAIL FINE ART GA C/O LOWELL MEYER PO BOX 1953 PO BOX 1247 EDWARDS, CO 81632 ASPEN, CO 81612 SEGUIN WILLIAM L PO BOX 4274 ASPEN, CO 81612 PARK CENTRAL CONDO ASSOC 215 S MONARCH ST STE 203 ASPEN, CO 81611 TRUE JAMES R PO BOX 2864 ASPEN, CO 81612 WELLS FARGO BANK C/O THOMSON PROPERTY TAX SERVICES PO BOX 2609 CARLSBAD,CA 92018 WENDELIN ASSOC WILLIAMS DEXTER M 150 METRO PARK 82 W LUPINE DR ROCHESTER, NY 14623 ASPEN, CO 81611 hWwttes faciles b paler A Consultez la feuille www.avery wn Utilisez le gabarit AVERY® 5160 Sens de chargement d'Instnrction 1- 800-GO -AVERY RESOLUTION NO. (Series of 2010) lX a- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, SUBMITTING TO THE ELECTORATE OF THE CITY OF ASPEN A CERTAIN QUESTION RELATING TO THE ADOPTION OF AN ORDINANCE TO AMEND THE CITY OF ASPEN HOME RULE CHARTER CHANGING THE PUBLICATION REQUIREMENTS FOR THE ADOPTION OF ORDINANCES OF THE CITY COUNCIL. WHEREAS, the City Council has determined that the Home Rule Charter requirement that ordinances be published in full has proven to be a great expense to the City of Aspen without appreciably providing a good method for informing the public of proposed legislation before the City Council; and WHEREAS, the City Council has determined that the publication of ordinances on the City's internet website instead of once - per -week publication in a newspaper would offer members of the public a more convenient and effective method to read proposed and adopted ordinances of the city of Aspen; and WHEREAS, Section 13.10 of the Home Rule Charter authorizes the City Council to propose amendments to the City Charter in accordance with the State Constitution; and WHEREAS, the State Constitution requires that Home Rule Charter amendments be made by the adoption of an ordinance and thereafter approved by the voters; and WHEREAS, the City Council has adopted on first reading an ordinance to amend the Aspen Home Rule City Charter and desires to refer to the voters a ballot question seeking voter approval of the proposed amendment. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: The following question, seeking voter approval of Ordinance No. _, Series of 2010, shall be placed on the ballot at the City's special election to be held on November 5, 2010; provided, however, that Ordinance No. , Series of 2010, is duly adopted by the City Council. AMENDMENT TO CITY OF ASPEN HOME RULE CHARTER Shall Ordinance No. , Series of 2010, be adopted? This ordinance proposes to amend the City of Aspen Home Rule Charter by adding the following subsection to section 4.10: (h) Whenever an ordinance is required to be published in full or by title pursuant to this Article IV of the Aspen Home Rule Charter, it may be made by posting the same on the City's internet website, www.aspenpitkin.com or successor website. Said publication shall be made available for viewing by the public for a minimum of 30 days. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the day of 2010. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Kathryn S. Koch, City Clerk JP W -7/16 /2010 -G: \john \word \resos \ballot I 0-charter-amen -pub] icationd.doc SPECIAL MEETING CALLED FOR EXECUTIVE SESSION Date July 26, 2010 Call to order at: 4 /O m. Co present: Councilmembers not present: [ cilmembers Mick Ireland ❑ Mick Ireland [Steve Skadron ❑ Steve Skadron []Dwayne Romero ❑ Dwayne Romero [Torre ❑ Tone [Derek Johnson ❑ Derek Johnson l�n"- II. Motion to go into executive session by ; seconded Other persons present: AGAINST: FOR: [E�Mick Ireland [Steve Skadron [Dwayne Romero [''Torre D6erek Johnson ❑ Mick Ireland ❑ Steve Skadron ❑ Dwayne Romero ❑ Torre ❑ Derek Johnson III. MOTION TO CONVENE EXECUTIVE SESSION FOR THE PURPOSE OF DISCUSSION OF: C.R.S. 24- 6- 402(4) a�I'he purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest ®Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal iestions. (c) Matters required to be kept confidential by federal or state law or rules and regulations. (d) Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law; (e) Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators; (f) (I) Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting. ' IV. ATTESTATION: The undersigned attorney, representing the Council and being present at the executive session, attests that the subject of the unrecorded portions of the session constituted confidential attorney -qh nt ca ion: The undersigned chair of the executive session attests that the discussions in this executive s ssion were limited to the topic(s) described in Section III, above. Adjourned at: