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agenda.council.regular.20120326
CITY COUNCIL AGENDA March 26, 2012 5:00 P.M. I. Call to Order II. Roll Call III. Scheduled Public Appearances IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) Resolution #24, 2012 — Contract - Sales Tax & Business License Software — N. Harris Computer Corporation b) Resolution #25, 2012 — Contract - Agenda Management Software c) Resolution #26, 2012 — Contract —Water Utility Asset management Plan d) Minutes — March 12, 2012 VII. First Reading of Ordinances a) Ordinance #10, 2012 — GMQS Review— 700 E. Bleeker (Eagle's Club) P.H. 4/23 b) Ordinance #11, 2012 — Code Amendment— Code Amendment Process P.H. 4/2 c) Ordinance #12, 2012 — Code Amendment— Downtown Zoning P.H. 4/2 VIII. Public Hearings a) Ordinance #6, 2012 —AspenModern Designation 514 E. Hyman b) Ordinance #34, 2011 — Code Amendment—Vacation Rentals IX. Action Items X. Adjournment Next Regular Meeting April 9, 2012 COUNCIL'S ADOPTED GUIDELINES • Stick to top priorities • Involve others in community problem solving • Be thorough, deliberate and accountable for consequences when making decisions COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. Via. . MEMORANDUM TO: Mayor and City Council FROM: Alice Hackney, Accounting Manager/Controller THRU: Don Taylor, Finance Director DATE: March 15, 2012 MEETING DATE: March 26, 2012 RE: Contract for Sales Tax and Business License Software REQUEST OF COUNCIL: Staff is requesting approval from Council to purchase and implement Innoprise, a new sales tax and business license software and approval from Council for Software License, Implementation and Support Maintenance Agreement with N. Harris Computer Corporation. Please refer to Attachment "A" for the Agreement. The Agreement has been approved as to form by the City Attorney. PREVIOUS COUNCIL ACTION: No prior action taken by Council on the request. BACKGROUND: In December 2011, the Finance Department issued a Request for Proposals (RFP) to provide for a sales tax and business license system. A team of four finance staff examined bids from eight vendors, with 5-year cost proposals ranging from $33,240 to $375,000. Some bids failed to meet minimum evaluation criteria and the team narrowed the list down to three vendors for demonstration. Of the top three, Innoprise was established as the recommended software provider, with the most cost effective solution. Innoprise delivers superior reporting and searching capabilities, along with meeting all of the critical evaluation requirements. The software enables customers to file applications and tax returns online with electronic payment. It also includes audit workflow functionality, correspondence tracking, and mass payment import. Innoprise tax software is used by the following locations in Colorado: • City and County of Broomfield • City of Centennial • City of Loveland • City of Greenwood Village • Town of Snowmass Village • City of Sheridan • Town of Avon • City of Pueblo • City of Boulder • City of Greeley Page 1 of 3 DISCUSSION: The Finance Department is currently managing sales tax and business license accounts in INCODE, a Tyler Technologies software. Major shortfalls of this software include minimal search options, limited reporting, duplication of data entry, and failure to provide web portal for online filing and electronic payment. Converting to Innoprise will address these issues, as well as introduce new functionality. The software includes a web portal that enables taxpayers to complete and submit new business license applications and sales tax returns with electronic payment. The web portal data interfaces directly into the software and eliminates staff time spent on organizing paperwork, data entry, and deposits. The software will interface with the City's financial system, posting revenues as collected. The software provides analytical reports and has the capability to create custom reports and searches using any field of data in the database. This will be beneficial in reconciliations, analyzing accounts, selecting taxpayers for audit, tracking delinquent accounts, and more. FINANCIAL/BUDGET IMPACTS: The acquisition of sales tax software was provided for in the 2012 approved budget in the amount of$100,000. The Finance Department will transfer $8,000 from its operational budget to this capital budget line to allow for this acquisition. Annual maintenance and support will need to be appropriated in 2013 and in all years thereafter. Software support is 20% of licenses plus $1,000 interface support with 3% increase per year. Cost detail: Software Purchase Licenses (Site License) $ 29,000 Interfaces $ 5,000 Software Implementation' $ 71,000 Server Costs' $ 3,000 Total Software Purchase $ 108,000 'Includes an estimated $10,100 internal implementation cost. 'Internal server sharing and memory upgrade costs. Annual Support and Maintenance Schedule Year Software Support IT Maintenance Total 2013 $ 6,800 $ 2,500 $ 9,300 2014 $ 7,004 $ 2,550 $ 9,554 2015 $ 7,214 $ 2,601 $ 9,815 2016 $ 7,431 $ 2,653 $ 10,084 2017 $ 7,653 $ 3,000 $ 10,653 Page 2 of 3 *INCODE annual support costs starting at approximately $9,240 would be eliminated, but are not included in the above totals. As such, converting to Innoprise would not increase annual support and maintenance costs. ENVIRONMENTAL IMPACTS: A formal analysis has not been completed, though paper reduction is expected with the addition of paperless online filing and electronic payment. RECOMMENDED ACTION: Staff is recommending the purchase of Innoprise, sales tax and business license software. ALTERNATIVES: The alternative would be to continue managing sales tax and business license accounts using INCODE, without the option for online filing and electronic payment. PROPOSED MOTION: I move to approve the Software License, Implementation and Support Maintenance Agreement between the City of Aspen and N. Harris Computer Corporation. CITY MANAGER COMMENTS: .„e wQ .04 776; C°"^ '-�-r ATTACHMENTS: Attachment "A" - Software License, Implementation and Support Maintenance Agreement Page 3 of 3 RESOLUTION #01f (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND N. HARRIS COMPUTER CORPORATION SETTING FORTH THE TERMS AND CONDITIONS REGARDING SALES TAX AND BUSINESS LICENSE SOFTWARE AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract between the City of Aspen and N. Harris Computer Corporation, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract between the City of Aspen and N. Han-is Computer Corporation regarding sales tax and business license software, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the day of March 2012. 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 March 26, 2012. Kathryn S. Koch, City Clerk SOFTWARE LICENSE, IMPLEMENTATION AND SUPPORT AND MAINTENANCE AGREEMENT BETWEEN N. HARRIS COMPUTER CORPORATION - and— CITY OF ASPEN, COLORADO Corporate Headquarters: Business Division: N. Harris Computer Corp. Inc. INNOPRISE SOFTWARE 1 Antares Drive, Suite 400 520 Zang Street, Suite 200 Ottawa, Ontario K2E 8C4 Broomfield, CO 80021 - 1 - TABLE OF CONTENTS ARTICLE I INTERPRETRATION ARTICLE II SOFTWARE LICENSES ARTICLE III CONSULTING SERVICES ARTICLE IV HARDWARE ARTICLE V SYSTEM SOFTWARE ARTICLE VI REPRESENTATIONS AND WARRANTIES ARTICLE VII FEES AND PAYMENTS ARTICLE VIII REMEDIES AND LIABILITY ARTICLE IX INDEMNITY ARTICLE X GENERAL - 2 - SOFTWARE LICENSE, IMPLEMENTATION AND SUPPORT AND MAINTENANCE AGREEMENT THIS AGREEMENT made as of the 7th day of March, 2012. BETWEEN: N. HARRIS COMPUTER CORPORATION ("Consultant") - and - CITY OF ASPEN, COLORADO ("Organization" or"City") RECITALS 1. The Consultant owns the Software (as defined below); 2. The Organization wishes to (a) acquire a license to utilize the Software, (b) retain the Consultant to perform the Services (as defined herein), and (c) enter into a support and maintenance contract (Schedule"D"). 3. The Consultant wishes to (a) grant the Organization a license to utilize the Software, and (b) provide the Services to the Organization, all upon the terms and conditions set out in this Agreement. NOW THEREFORE, in consideration of the mutual covenants set out in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: ARTICLE I INTERPRETATION 1.1 Definitions Throughout this Agreement, except as otherwise expressly provided,the following words and expressions shall have the following meanings: (a) "Agreement", "this Agreement", "the Agreement", "hereof', "herein", "hereto", "hereby", "hereunder" and similar expressions mean this Software License, Implementation and Support and Maintenance Agreement, including all of its Schedules and all instruments supplementing, amending or confirming this Agreement. All references to "Articles" or "Sections" mean and refer to the specified Article or Section of this Agreement. - 3 - (b) "Change Order" means any written documentation between the Organization and Consultant evidencing their agreement to change particular aspects of this Agreement. (c) "Completion of Services" means that the Software is fully operational and performing in substantial conformity with the specifications set out herein. For purposes of this Agreement, Completion of Services will be deemed to have occurred on the date which the Organization commences using the Software as its predominate business system. (d) "Confidential Information" means, with respect to a Party hereto, all information or material which: is (A) marked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, (B)known by the Parties to be considered confidential or proprietary, or (C) which should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential Information does not include information to the extent that such information: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving Party hereunder; (ii)was previously known to the receiving Party as evidenced by its written records; (iii) is rightly received by the receiving Party from a third party who is not under an obligation of confidentiality; or (iv) is independently developed by the receiving Party without reference to or use of the other Party's Confidential Information. (e) "Designated Computer System" shall mean the Organization's platform and operating system environment which is operating the Software. (f) "Documentation" means user guides, operating manuals, education materials, product descriptions and specifications, technical manuals, supporting materials, and other information relating to the Software or used in conjunction with the Services, whether distributed in print, magnetic, electronic, or video format, in effect as of the date (1) the Software is accepted by the Organization, or(2)the Service is provided to the Organization. (g) "Go-Live" means the event occurring when the Organization first uses the Software as the Organization's predominant Software. (h) "Project Scope of Work" means the scope of work appended hereto as Schedule "E" delineating, among other things, the Services that will be provided by Consultant to Organization pursuant to this Agreement, as such schedule may be amended or modified by mutual specific written agreement of the parties' respective representatives from time to time in accordance with the terms of this Agreement. (i) "Required Programs" has the meaning set out in Section 3.3(b) hereof. (j) "Services" has the meaning set out in Section 3.1 hereof. -4 - (k) "Source Code" of the Software means the Software written in programming languages, including all comments and procedural code, such as job control language statements, in a form intelligible to trained programmers and capable of being translated into object code for operation on computer equipment through assembly or compiling, and accompanied by documentation, including flow charts, schematics, statements of principles of operations, and architecture standards, describing the data flows, data structures, and control logic of the Software in sufficient detail to enable a trained programmer through study of such documentation to maintain and/or modify the Software without undue experimentation. (1) "License" means the non-exclusive license granted to the Organization pursuant to Section 2.1 hereof, to configure and install the Software on the Organization's server computers to enable users to access and use the Software. (m) "Software" means the program material in machine-readable or interpreted form, and may include, where appropriate, listings of either machine code or source code and related materials, including instructions and documentation provided by Consultant to Organization, including any such programs provided subsequent to this Agreement, and including all copies made by Organization. The Software to be provided by Consultant at the inception of this Agreement is identified on the attached Schedule A. (n) "Support and Maintenance Agreement" has the meaning set out in Section 3.4 hereof. (o) "Warranty Period" means a period of 90 days from the date of Software installation, during which time the Consultant shall correct any errors or malfunctions reported to the Consultant by the Organization in accordance with Section 6.3 of this Agreement. 1.2 Time of the Essence Time shall be of the essence in and of this Agreement and every part hereof. Any extension, waiver or variation of any provision of this Agreement shall not be deemed to affect this provision and there shall be no implied waiver of this provision. 1.3 Currency Unless otherwise specified, all references to amounts of money in this Agreement refer to U.S. currency. 1.4 Headings The descriptive headings preceding Articles and Sections of this Agreement are inserted solely for convenience of reference and are not intended as complete or accurate - 5 - descriptions of the content of such Articles or Sections. The division of this Agreement into Articles and Sections shall not affect the interpretation of this Agreement. 1.5 Plurals and Gender The use of words in the singular or plural, or referring to a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to such persons or circumstances as the context otherwise permits. 1.6 Schedules The Schedules described below and appended to this Agreement shall be deemed to be integral parts of this Agreement. Schedule "A" - Description of Software Schedule `B" - Implementation Process Schedule"C" - Fee Structure and Payment Schedule Schedule "D" - Support and Maintenance Agreement Schedule "E" - Scope of Work—if applicable Schedule "F" - Sample Change Order Schedule "G" - System Software—if applicable Schedule "H" - Hardware—if applicable Schedule "I" - Software not selected—if applicable Schedule "J" - Addendum—if applicable In the event of any conflict or inconsistency between the terms and conditions in the main body of this Agreement and the terms and conditions in any Schedule, the terms and conditions of the main body of this Agreement shall control. ARTICLE II SOFTWARE LICENSES 2.1 Grant of Licenses Subject to the terms and conditions of this Agreement,the Consultant hereby grants to the Organization a personal, non-exclusive, non-transferable right and license to use the Software on the Designated Computer System(the "License"). Any Software furnished by Consultant in machine-readable form may be copied in whole or in part by Organization for use on the Designated Computer System. Organization agrees that the original copy of all Software furnished by Consultant and all copies thereof made by Organization are and at all times remain the sole property of Consultant. Any License granted under this Agreement permits the Organization to: (i) use the Software for its municipal and corporate purposes including, but not limited to, performing testing, disaster recovery, disaster testing, training, archival and backup as the Organization deems necessary, and (ii) use, copy and modify the Documentation for the purpose of creating - 6 - and using training materials relating to the Software, which training materials may include flow diagrams, system operation schematics, or screen prints from operation of the Software. Access to and use of the Software by independent contractors of the Organization shall be considered authorized use under this Section so long as any such independent contractors are bound by obligations of confidentiality. Within one (1) year after the date of this Agreement, Organization may optionally license from Consultant any of the Software identified in Schedule I for the corresponding prices listed in Schedule I. After the expiration of the one (1) year period,prices for the Software identified in Schedule I are subject to change in Consultant's sole discretion. 2.2 Term of License The License granted herein commence on the date of this Agreement and is of indefinite duration unless terminated pursuant to the terms hereof. 2.3 Restrictions on Use Except as expressly provided herein,the Organization may not give away, rent, lease or otherwise sell, sublicense, distribute or transfer the License granted under this Agreement without the prior written consent of Consultant. Organization requires a separate License for each computer system or environment into which the Software or any portion thereof is read in machine-readable form for operation on such system or environment in a production environment. In addition each License permits the Organization to use the Software in(1) a test environment, (2) a training environment and (3) on a back-up or disaster recovery system. Within thirty (30) days after discontinuance or termination of the License for any reason, including termination resulting from a breach by the Organization beyond the applicable notice and cure periods as provided in this Agreement, Organization shall deliver to Consultant the Software and all copies thereof in whichever form, including partial copies which may have been modified by Organization or Consultant. Alternatively,the Software and other related materials may be disposed in accordance with written instructions from Consultant. Upon prior written authorization from Consultant, Organization may be permitted for a specific period after the termination of the License to retain one copy of certain materials for record purposes. The Software and related materials supplied by Consultant are protected by copyright and trademark laws. Title, ownership rights and intellectual property rights in the Software and related materials supplied by Consultant remain with Consultant. Use of the Software and related materials supplied by Consultant is subject to the applicable copyright laws and the express rights and restrictions of this Agreement. Any rights not expressly granted herein are reserved. Organization may not remove any copyright, trademark or other proprietary notices from the Software and related materials supplied by Consultant. - 7 - 2.4 Derivation,Modification and Copyright (a) The Organization agrees that it will not attempt to derive, or permit or help others to derive the Source Code relating to the Software or attempt to otherwise convert or alter the Software into human readable code. The Organization further agrees that it will not attempt to duplicate, or permit or help others to duplicate, the Source Code relating to the Software. (b) The Organization shall have no right to modify any of the Software supplied by the Consultant for Organization's use under this Agreement without the prior written approval and direction of the Consultant. (c) The Organization agrees that it will not, except as otherwise expressly provided in this Agreement or except as dictated by Organization's standard computer system's backup procedures and/or test environments, make or allow others to make copies or reproductions of the Software or other proprietary information in any form. Any additional copies that are reasonably necessary for the use of the Software shall be provided to the Organization through the issuance of additional Licenses at the Consultant's then current charges. (d) The Organization may duplicate Documentation, at no additional charge, for the Organization's use so long as all required proprietary markings are retained on all duplicated copies. 2.5 Ownership of Software and Confidential Information (a) The Organization acknowledges that the Software contains proprietary and confidential information of the Consultant which shall, at all times, remain the property of the Consultant. Through the grant of licenses pursuant to Section 2.1, the Organization is only entitled to use of the Software in accordance with the terms of this Agreement. (b) The Organization will ensure that the Universal Copyright Convention symbol and other copyright and proprietary notices of the Consultant will remain on the Software in machine-readable form. The Organization will take the same care to safeguard the Software as it takes to safeguard its own confidential information and such care shall not be any less than would be taken by a reasonable person to safeguard its own confidential information. (c) No third party, other than duly authorized agents or employees of the Organization authorized pursuant to the Licenses issued hereunder, shall have access to or use of the Software. (d) In order to assist the Consultant with the protection of its proprietary rights with respect to the Software and to enable the Consultant to ensure that the Organization is complying with its obligations with respect to the proprietary nature and confidentiality of the Software, the Organization shall permit the - 8 - Consultant to visit during normal business hours any premises at which the Software is used and shall provide the Consultant with access to such Software. 2.6 Provision of Source Code (a) The Organization's ability to utilize the Software will be seriously jeopardized if the Consultant fails to maintain or support such Software unless complete Source Code for the Software and related Documentation is made available to the Organization for the Organization's use in satisfying the Organization's maintenance and support requirements. Therefore, the Consultant agrees that if an "Event of Default" occurs, then the Consultant shall promptly provide to the Organization one copy of the most current version of the Source Code for the affected Software and associated Documentation. (b) An Event of Default shall be deemed to have occurred if the Consultant: (1) ceases to market or make available maintenance or support Services for the Software during a period in which the Organization is entitled to receive or to purchase, or is receiving or purchasing, such maintenance and support and the Consultant has not promptly cured such failure despite the Organization's demand that the Consultant make available or perform such maintenance and support, (2) becomes insolvent, executes an assignment for the benefit of creditors, or becomes subject to bankruptcy or receivership proceedings, (3) ceases business operations generally or (4) has transferred all or substantially all of its assets or obligations set forth in this Agreement to a third party which has not assumed all of the obligations of the Consultant set forth in this Agreement. (c) The Consultant will promptly and continuously update and supplement the Source Code as necessary with all corrections, improvements, updates, releases, or other changes developed for the Software and Documentation. Such Source Code shall be in a form suitable for reproduction and use by computer and photocopy equipment, and shall consist of a full source language statement of the program or programs comprising the Software and available program maintenance Documentation which comprise the pre-coding detail design specifications, and all other available material necessary to allow a reasonably skilled programmer or access the Software without the assistance of the Consultant. (d) The governing License for the Software includes the right to use Source Code received under this Section as necessary to modify, maintain, and update the Software. (e) The Consultant will deposit in escrow with its Escrow Agent a copy of the Source Code which corresponds to the most current version of the Software in use by the Organization. The Organization shall pay the fees for new account set-up and annual fees of the Escrow Agent for services provided, including any fees to add the Organization as a beneficiary to such escrow and any - 9 - verification and testing of the escrow deposit which may be undertaken by the Escrow Agent at the Organization's request. The Consultant's entry into, or failure to enter into, an agreement with an escrow agent or to deposit the described materials in escrow shall not relieve the Consultant of its obligations to the Organization described in this Section. 2.7 Ownership and Disposition of Documents The Organization shall be the exclusive owner of all materials and documents which were developed or prepared by the Consultant specifically for the Organization pursuant to this Agreement. All materials and documents which were developed or prepared by the Consultant for general use and which are not the copyright of any other party or publicly available, including educational materials, the Software (including all copies, modifications, and derivative works thereof, by whomever produced) and any other computer applications, shall continue to be the property of the Consultant. ARTICLE III CONSULTING SERVICES 3.1 The Consultant's Services In order to achieve the Completion of Services, the Consultant agrees, subject to the terms and conditions of this Agreement, to perform the following services (the "Services") for the Organization: (a) Oversee and implement the conversion from the Organization's existing software applications to the Consultant's Software substantially in accordance with the timetable attached hereto as Schedule `B". (b) Install the Software, perform necessary set up and configuration operations, perform initial testing and parallel testing in accordance with the timetable attached hereto as Schedule "B". (c) Provide the training substantially in accordance with the timetable attached hereto as Schedule `B". (i) Consultant recommends a maximum of eight(8) people in each training class for optimal training. In any training class exceeding eight (8) people, Organization may be assessed an additional charge for additional instructors. - 10 - • (ii) Organization is required to make copies of the training manuals required for the training classes either by photocopy or electronic duplication each of which is subject to the restrictions and obligations contained in this Agreement. (iii) On-line reference documentation is delivered with each release. Organization may print this documentation solely for its internal use. (iv) Cancellation of any on-site Services by Organization is allowed for any reason if done in writing more than fourteen (14) days in advance of such Services. Cancellation by Organization with fourteen(14) days or less of scheduled on-site Services will be billed at fifty percent (50%) of the on-site fee, plus any non-recoverable costs incurred by Consultant due to advance scheduling of travel. Additionally, Organization hereby acknowledges that cancellation of on-site Services means that such on-site Services will be rescheduled as Consultant's then current schedule permits. Consultant is not responsible for any delay in Organization's project resulting from Organization's cancellation of training. If upon Consultant arrival, the Organization is not adequately prepared or has not completed the assigned tasks for such visit by the Consultant, then the Organization will be billed 100% of the on-site fee and scheduled on-site services can be cancelled by the Consultant. If additional services are required because the Organization was not adequately prepared, Consultant will provide a Change Order to the Organization for the additional services. 3.2 Performance by Consultant (a) Manner of Performance -- The Consultant shall perform the Services in an efficient, competent and timely manner and exercise reasonable care, skill and diligence in the performance thereof. (b) Consultant's Discretion-- The Consultant shall determine in its sole discretion the manner and means by which the Services shall be performed, with due consideration of adequate knowledge transfer to the Organization personnel. The Consultant will communicate openly with the Organization on its methodology, manner and means. (c) Conduct on Organization's Premises -- The Services shall be performed with the Organization's full co-operation, on the premises of the Organization or, if agreed to by both parties, at an alternative location. The Consultant agrees, while working on the Organization's premises, to observe the Organization's rules and policies relating to the security thereof, access to or use of all or part of the Organization's premises and any of the Organization's property, including proprietary or confidential information. (d) Inquiries by Organization-- The Consultant shall respond expeditiously to any inquiries pertaining to this Agreement from the Organization. - 11 - 3.3 Performance by Organization (a) Co-operation by Organization -- The Organization acknowledges that the success and timeliness of the implementation process shall require the active participation and collaboration of the Organization and its staff and agrees to act reasonably and co-operate fully with the Consultant to achieve the Completion of Services. (b) Required Programs. The Organization acknowledges that the use of the Software requires that the Organization obtain and install additional required software programs (the "Required Programs"), as detailed in the attached Schedule "A", and the Organization agrees that the acquisition of the Required Programs shall be at its sole cost and that the cost thereof is not included in the fees herein. (c) Hardware. The Organization acknowledges that the operation of the Software requires the Organization's hardware to be of sufficient quality, condition and repair, and the Organization agrees to maintain its hardware in the appropriate quality, condition and repair at its sole cost and expense, in order to facilitate the achievement of Completion of Services. If Consultant determines that Organization's hardware is not of sufficient quality, condition and repair, Consultant shall notify Organization in writing of the Hardware deficiencies. Organization will strive to remedy any hardware deficiencies within 30 days of notification. (d) Project Manager -- The Organization shall appoint a project manager (the "Project Manager") who shall work closely with the Consultant to facilitate the successful completion of the implementation process and who shall be responsible for supervising the staff of the Organization and their co-operation with and participation in such process. (e) Additional Organization Obligations (i) Organization shall install all corrections and maintenance releases within a reasonable period of time of Organization's notification of their availability. However, any fix or correction designated as "critical"by Consultant shall be implemented by Organization within thirty (30) days of notification to the Organization by Consultant of its availability. (ii) Organization shall notify Consultant of suspected defects in any of the Software supplied by Consultant. Organization shall provide, upon Consultant request, additional data deemed necessary or desirable by Consultant to reproduce the environment in which such defect occurred. (iii) Organization shall allow the use of online diagnostics on the Software supplied by Consultant to Organization, if required by Consultant during problem diagnosis. Organization shall provide to Consultant, at Organization's expense, 12 access to the Designated Computer System via the Organization's firewall to communications software (e.g. PC Anywhere, WebEx, Web Demo). (iv) Required Consent. Organization will promptly obtain and provide to Consultant all Required Consents (as defined herein) necessary for Consultant to provide the Services described in this Agreement. A Required Consent means any consent or approvals required to give Consultant and its subcontractors the right or license to access, use and/or modify (including creating derivative works) to the hardware, software, firmware and other products that the Organization uses, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products. Consultant will be relieved of the performance of any obligations that may be affected by the Organization's failure to promptly obtain and provide any Required Consent to Consultant. (v) Organization shall ensure that its personnel are, at relevant stages of the project, educated and trained in the proper use of the Software in accordance with applicable Consultant manuals and instructions. If Organization's personnel are not properly trained as mutually determined by Consultant and Organization, Organization agrees that such personnel will be trained by Consultant or Organization within fifteen (15) days of determination. If Organization desires Consultant to perform the required training then Consultant shall be compensated in accordance with this Agreement. (vi) Organization shall establish proper backup procedures necessary to replace critical Organizational data in the event of loss or damage to such data from any cause. Organization shall provide Consultant with access to qualified functional or technical personnel to aid in diagnosis and to assist in repair of the Software in the event of error, defect or malfunction. (vii) Organization shall have the sole responsibility for: (a) the performance of any tests it deems necessary prior to the use of the Software. (b) assuring proper Designated Computer System installation, configuration, verification, audit controls and operating methods. (c) implementing proper procedures to assure security and accuracy of input and output and restart and recovery in the event of malfunction. (d) timely upgrade and keeping current all third party license releases and/or Software products to meet the requirements of the Consultant Software. - 13 - 3.4 Allowance for Suspension or Delay due to Organization In the event that the Organization shall suspend the performance of Services, delay any deliverable date, or cause a delay in performance by failing to fulfill any of its obligations under Section 3.3, then the following shall apply: Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. The due date for any deliverable set forth in the Statement of Work that is dependent on such performance by the Organization shall be deemed adjusted equitably to allow for the effect of such delay on Consultant's ability to supply or perform such deliverable, and Consultant shall be entitled to reimbursement for any costs that cannot reasonably be mitigated by temporary reassignments of personnel or other resources, including without limitation the hourly charges for any Consultant personnel necessarily idled by such delays but whose capacity is required to be maintained for timely future performance by Consultant . 3.5 Support and Maintenance Agreement Concurrently with the execution and delivery of this Agreement, the Consultant and the Organization have entered into a support and maintenance agreement (the "Support and Maintenance Agreement") in the form of and on the terms set out in the attached Schedule "D" which shall apply in respect of the maintenance and support services to be provided by the Consultant to the Organization.. Notwithstanding the ongoing application of the Support and Maintenance Agreement,the terms and conditions of this Agreement, insofar as they relate to the Software and the Documentation and the rights and obligations of the parties with respect thereto, shall continue to apply and the Support and Maintenance Agreement is not intended to, nor will it, apply to the exclusion of this Agreement. Consultant shall have no obligation under this Agreement to render any maintenance services or related services with respect to non- Consultant software, except as contracted for in writing with the Organization. ARTICLE IV HARDWARE 4.1 Hardware This Article IV shall only be applicable in the event any hardware is listed on Schedule H. (i) Organization agrees to purchase from Consultant and Consultant agrees to sell to Organization, the hardware listed on the attached Schedule H (collectively the "Hardware"), for the purchase prices listed in said Schedule. Consultant shall arrange for the delivery of the Hardware, and Organization shall pay for the transportation charges incurred by Consultant in connection with the delivery of the Hardware. Delivery of the Hardware shall be F.O.B. point of destination, provided that Organization shall pay for the shipping charges. All risk of loss and risk of damage to the Hardware will pass to Organization upon delivery to Organization's specified location. - 14 - (ii) Upon delivery of the Hardware to Organization, Consultant shall invoice Organization for the Hardware, and Organization shall pay for the same within thirty (30) days. Consultant hereby reserves a purchase money security interest in all Hardware delivered to Organization in accordance with this Agreement until payment in full is received for all Hardware delivered to Organization, and for that purpose, this Agreement shall be a security agreement. Organization authorizes Consultant or its agent to file the necessary financing statements to perfect Consultant's interest. Additionally, Consultant may file this Agreement or a copy of this Agreement with such public filing offices as are necessary in Consultant's discretion. (iii) Consultant and/or the Hardware manufacturer(s) will provide Organization with one copy of the then current user documentation for use with the Hardware ordered and the environmental specifications for the equipment, where applicable. (iv) Except as otherwise provided in this Agreement, Organization shall be responsible for the installation of the Hardware at Organization's location. If Organization desires Consultant to perform any installation not described in this Agreement, Consultant and Organization shall follow the procedures set out in this Agreement. (v) It is acknowledged by the parties hereto that the Hardware provided by Consultant to Organization pursuant to this Agreement was manufactured and delivered to Consultant by a third party manufacturer and Consultant is reselling it to Organization. As such, Consultant makes no warranties, express or implied, with respect to the Hardware, including, without limitation, their merchantability or fitness for a particular purpose. Any warranty Organization has with respect to the Hardware shall be solely provided by the manufacturer(s). Notwithstanding, except for manufacturer defects, Consultant warrants that the Hardware is capable of implementing the Software Licensed to Organization hereunder. (vi) The parties agree that although this Agreement may contain estimated prices for the maintenance of the Hardware, Hardware maintenance shall be provided solely by the respective Hardware manufacturer(s) through separate agreements between Organization and the Hardware manufacturer(s). In no event shall Consultant be responsible for such Hardware maintenance. ARTICLE V SYSTEM SOFTWARE 5.1 System Software This Article V shall only be applicable in the event any System Software is listed on Schedule G. (i) Consultant shall distribute to Organization the System Software which is listed on Schedule G, and Organization shall pay Consultant for the System Software in the amount of the purchase price(s) listed on Schedule G. Upon delivery of the System Software to Organization, Consultant shall invoice Organization for the System Software, and Organization shall pay for the same within thirty (30) days. Delivery of the System Software shall be deemed - 15 - to have occurred: (i) on the date for which Consultant delivers Hardware to Organization with the System Software installed thereon, F.O.B. point of destination, provided that Organization is shall pay the shipping charges, or (ii) the date on which Consultant installs the System Software on Organization's Hardware. Consultant and/or the System Software manufacturer(s) will provide Organization with one copy of the then current user documentation for use with the System Software. (ii) Except as otherwise provided in this Agreement, Organization shall be responsible for the installation of the System Software at Organization's location. If Organization desires Consultant to perform any installation which is not described in this Agreement, Consultant and Organization shall follow the procedures set forth in this Agreement. (iii) It is acknowledged by the parties hereto that the System Software provided by Consultant to Organization pursuant to this Agreement was developed and delivered to Consultant by one or more third party software companies and Consultant is distributing, sublicensing and/or reselling it to Organization. As such, Consultant makes no warranties, express or implied, with respect to the System Software, including, without limitation, their merchantability or fitness for a particular purpose. Any warranty Organization has with respect to the System Software shall be solely provided by the third party software companies. Additionally, Organization acknowledges that its interest in the System Software may be in the nature of a license or sublicense with one or more of the third party software companies which may: (i) require Organization to enter into one or more separate license agreements with such third party software companies, and/or (ii) place restrictions on Organization's use of the System Software. Notwithstanding, except for third party software companies defects, Consultant warrants that the System Software is capable of implementing the Software Licensed to Organization hereunder. (iv) The parties agree that although this Agreement may contain estimated prices for the annual maintenance of the System Software, any maintenance of the System Software shall be provided solely by the third party software companies through separate agreements between Organization and such third party software companies. In no event shall Consultant be responsible for such System Software maintenance. ARTICLE VI REPRESENTATIONS AND WARRANTIES 6.1 Warranty of Performance Consultant warrants to Organization that the software, material and services to be provided and/or rendered will be of the kind and quality referred to in the Consultant manuals and other documentation provided. Organization's sole recourse in the event the Software does not conform to the applicable documentation is the repair and replacement of the Software. The Consultant warrants to the Organization that the Software will perform as described if the Software is properly used in accordance with the Consultant's instructions. This warranty is void if the Organization or any other third party changes or modifies the Software. Examples of such - 16 - changes or modifications include, but are not limited to, data modifications from third party software, the de-compiling and modifying of the source code, and tampering with the base set-up of the system. 6.2 Intellectual Property Rights The Consultant warrants: (a) that it has the full right, authority and power to enter into this Agreement and to grant to the Organization the Licenses and rights conveyed by this Agreement; and (b) that the Software is an original work of authorship and does not infringe the intellectual property rights of others. In the event there is a third party claim alleging that Organization's use of the Software in accordance with this Agreement constitutes an infringement of a United States patent, copyright, or trade secret, Consultant shall, at its expense, defend Organization and pay any final judgment against Organization or settlement agreed to by Consultant on Organization's behalf; provided that Organization promptly notifies Consultant of any such claim or proceeding and shall give Consultant full and complete authority, information, and assistance to defend such claim or proceeding. Consultant shall have sole control of the defense of any claim or proceeding and all negotiations for its compromise or settlement. In the event that the Organization's use of the Software is finally held to be infringing or Consultant deems that it tray be held to be infringing, Consultant shall, at Consultant's election: (1) procure for the Organization the right to continue use of the Application Software; or (2) modify or replace the Application Software so that it becomes non-infringing. Consultant shall have no liability hereunder if the Organization has modified the Application Software in any manner without the prior written consent of Consultant. The foregoing states Consultant's entire liability, and the Organization's exclusive remedy, with respect to any claims of infringement of any copyright, patent, trade secret, or other property interest rights relating to the Software, or any part thereof, or use thereof. 6.3 •Corrections The Consultant covenants that it will make corrections of program malfunctions which are reported in writing to the Consultant during the Warranty Period and which are necessary for the Software to conform to this Agreement. The Organization agrees to allow the Consultant the opportunity to make repeated efforts within a reasonable time to correct programming errors or malfunctions as warranted in this Agreement. Consultant agrees that program malfunctions that result in an inoperable system resulting in a financial impact to the Organization, or inefficient work-around, will be given its highest priority with the problem corrected as soon as practicably possible using its most experienced and knowledgeable resources. - 17 - 6.4 No Other Warranties The express warranties contained above are in lieu of all other representations, warranties and conditions, express or implied, whether arising by statute or otherwise in law or from a course of dealing, or usage of trade. Without limiting the generality of the foregoing, the Consultant does not represent or warrant and the Organization acknowledges that there are no further representations or warranties: (a) that the functions contained in the Software will operate in the combinations which may be selected for use by the Organization or will meet the Organization's requirements and satisfy its intended results; or (b) that the operation of the Software will be error free or that: (i) any programming errors will be corrected after the Warranty Period, or (ii) any updates of, or modifications to, the Software will be made available to the Organization after the Warranty Period, in each case unless there is an effective Support Agreement in place after the Warranty Period in respect of the period of time during which any such programming errors require correction, or any updates of, or modifications to, the Software, are developed by the Consultant and made available to the other licensees of the Software. ARTICLE VII FEES AND PAYMENTS 7.1 Fees and Payments (a) The Organization agrees to pay the Consultant total fees as defined in the attached Schedule "C". (b) During the term of this Agreement, Consultant shall, from time to time, deliver invoices to Organization. Each invoice delivered to Organization by Consultant shall be due and payable upon receipt thereof by Organization. (c) The Organization shall reimburse the Consultant for its direct expenses, including, but not limited to courier services, photocopying, faxing and reproduction, all reasonable travel costs including a travel time rate of$50.00 per hour, meal expenses of not more than $50.00 per diem (no receipts provided) and a mileage charge based on the current Internal Revenue Service recommended rate per mile, long distance telephone calls, and all other reasonable expenses incurred in the performance of the Consultant's duties. (d) In addition to all other amounts payable under this Agreement, to the extent escrow fees are charged by the Escrow Agent to the Consultant on a per licensee basis or are otherwise charged in such a manner so as to be reasonably allocable to the Organization, the Organization shall pay such fees charged by - 18 - the Escrow Agent for performing its obligations under Section 2.6. The Consultant shall use its commercially reasonable efforts to negotiate the best possible fee structure with the Escrow Agent. The Escrow Agent may charge a one-time annual fee or a fee based on the number of beneficiaries entitled to access the Source. In either case, the Consultant shall be entitled to pass on to the Organization any fees relating to the Escrow Agent reasonably attributable to the Organization, provided that the Organization remains entitled to access the Source pursuant to Section 2.6. Upon receiving any invoice from the Escrow Agent that requires payment by the Organization, the Consultant shall submit the relevant invoice to the Organization, together with background documentation confirming the amount attributable to the Organization. Within 30 days following receipt of such invoice, the Organization shall reimburse the Consultant for the amounts attributable to the Organization, as more particularly set out in the documentation submitted by the Consultant. The Consultant reserves the right to change the Escrow Agent from time to time in order to obtain the most appropriate package of fees and services, as determined by the Consultant, in its sole discretion. In the event that the Escrow Agent is replaced, prompt written notice of such replacement shall be provided to the Organization and the Organization shall execute any documentation reasonably required by the Escrow Agent in order to give effect to the provisions of this Agreement. (e) In the event Organization fails to pay all or any portion of an invoice on or before thirty (30) days after the date of the invoice, the invoice payment shall be considered past due. Organization further agrees, at the request of Consultant, to pay a late payment charge to Consultant at the rate of two percent (2%) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or fraction thereof) that such payment is past due; provided, however, that Consultant shall not assess the foregoing late payment charge if Organization has been late in paying Consultant on less than three (3) previous occasions within the last calendar year. (f) In the event Organization fails to pay all or any portion of an invoice on or before ninety (90) days after the date it becomes due, in addition to all other remedies Consultant has under this Agreement or otherwise, Consultant shall have the option to suspend or terminate all Services under this Agreement. Suspension or termination of any such Services shall not relieve the Organization of its obligation to pay its outstanding invoices, including any applicable late charges. (g) Consultant shall be responsible for paying all taxes, fees, assessments and premiums of any kind payable on its employees and operations. Any tax Consultant may be required to collect or pay upon the sale, use or delivery of the Software, Services or Support and Maintenance described in this Agreement shall be paid by Organization and such sums shall be due and payable to Consultant upon receipt of an invoice therefore. Any personal - 19 - property taxes levied after delivery of the Software described in this Agreement shall be paid by Organization. 7.2 Change Orders With respect to any proposed changes to the Services defined by this Agreement that do not materially impact the scope of either party's work effort required under this Agreement, the parties will cooperate in good faith to execute Change Orders in respect thereof, and will not unreasonably withhold approval of such proposed changes. If either party causes or requests a change that, in the reasonable opinion of the other party, materially impacts the scope of the parties' work effort required under this Agreement, such as, but not limited to, changes in the allocation of the resources of the Organization and of the Consultant applied to a task, changes in completion schedules for individual tasks or for overall implementation, and changes in staffing that require a party to provide additional work hours, the other party may propose a change to cover the additional work effort required of it. Approval of any such proposed changes will not be unreasonably withheld (it being acknowledged that any such material changes may require modifications to the consideration paid, and timelines governing, the Services), and any disputes regarding changes shall be handled initially by discussions between the parties which will be convened in good faith by the parties to resolve any such matters in dispute. A sample change order is presented in Schedule "F". ARTICLE VIII REMEDIES AND LIABILITY 8.1 Remedies and Liability (a) Termination of this Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising from this Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Agreement. (i) EXCEPT FOR DAMAGES ARISING OUT OF (a) THE CONSULTANT'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR (b) THE CONSULTANT'S INTENTIONAL MISREPRESENTATION, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BOTH PARTIES AGREE THAT THE CONSULTANT'S LIABILITY (UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), IF ANY, FOR ANY DAMAGES RELATING TO THIS AGREEMENT SHALL - 20 - NOT EXCEED THE FEES PAID TO CONSULTANT BY ORGANIZATION UNDER THIS AGREEMENT. (ii) IN ADDITION TO THE FOREGOING NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUE OR LOSS OF PROFITS, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY . (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY A PARTY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 8.2 Intent The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 8.3 Remedies Where remedies are expressly afforded by this Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this Agreement, notwithstanding any remedy otherwise available at law or in equity. ARTICLE IX INDEMNITY 9.1 Indemni . The Consultant shall indemnify and save harmless the Organization, its successors and assigns together with its officers, directors, employees, agents and those for whom it is in law responsible, from and against any and all liabilities, damages, costs, expenses, causes of action, claims, suits, proceedings and judgments (collectively "Claims") which they may incur or suffer or be put to by reason of or in connection with or arising directly from any material breach or non-performance by the Consultant of any obligation contained in this - 21 - Agreement to be observed or performed by the Consultant, or any negligence of the Consultant or its agents or employees which relates to this Agreement, howsoever arising. Consultant shall not be responsible for any Claims resulting, in whole or in part, from the acts or omissions of Organization, its employees, consultants or agents or any third party. 9.2 Consultant's Insurance. (a) Consultant 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 Consultant pursuant to Section 9.1 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Consultant shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 9.1 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) Consultant shall procure and maintain, and shall cause any subcontractor of the Consultant 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 Consultant pursuant to Section 9.1 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 Colorado 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. The policy shall contain a waiver of subrogation in favor of the City. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision and a waiver of subrogation in favor of the City. (iii) Professional Liability insurance with the minimum limits of TWO MILLION DOLLARS ($2,000,000) each claim and TWO MILLION DOLLARS ($2,000,000) aggregate. - 22 - (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 Consultant. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Consultant shall be solely responsible for any deductible losses under any policy required above. (d) The Certificate of Insurance shall be completed by the Consultant'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 Consultant 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 Consultant to City upon demand, or City may offset the cost of the premiums against monies due to Consultant from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time.amended, or otherwise available to City, its officers, or its employees. ARTICLE X GENERAL 10.1 Force Maleure Neither party shall be liable for delay or failure in performance resulting from acts beyond the control of such party including, but not limited to, acts of God, acts of war or of the public enemy, riots, fire, flood, or other natural disaster, acts of government, strike, walkout, communication line or power failure, failure in operability or destruction of the Organization's computer (unless by reason of the negligence of a party to this Agreement) or failure or - 23 - inoperability of any software other than the Software. Any applicable delivery schedule shall be extended by a period of time equal to the time lost because of any such delay. 10.2 Confidentiality (a) Duty Owed to the Organization -- The Consultant acknowledges that it may receive information from the Organization or otherwise in connection with this Agreement or the performance of the Services. Except for information in the public domain, unless such information falls into the public domain by disclosure or other acts of the Organization or through the fault of the Organization, the Consultant agrees: (i) to maintain this information in confidence; (ii) not to use this information other than in the course of this Agreement; (iii) not to disclose or release such information except on a need-to-know only basis; (iv) not to disclose or release such information to any third person without the prior written consent of the Organization, except for authorized employees or agents of the Consultant; and (v) to take all appropriate action, whether by instruction, agreement or otherwise, to ensure that third persons with access to the information under the direction or control or in any contractual privity with the Consultant, do not disclose or use, directly or indirectly, for any purpose other than for performing the Services during or after the term of this Agreement, any material or information, including the information, without first obtaining the written consent of the Organization. (b) Duty Owed to the Consultant -- The parties agree that if the Organization shall breach any term of Section 2.5 of this Agreement entitled "Ownership of Software and Confidential Information", then the Consultant shall have the right to terminate this Agreement and the grant of licenses herein forthwith without giving notice as set forth in Section 10.3(b). 10.3 Termination (a) If the Consultant should neglect to perform the Services properly or otherwise fail to comply with the requirements of this Agreement, the Organization must notify the Consultant in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Consultant must either correct the default at no additional cost to the Organization, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Consultant fails to correct the default, or issue a notice disputing the alleged default, in either case within - 24 - thirty (30) days following receipt of the Default Notice, the Organization may terminate the entire Agreement or the part of this Agreement relating to the provision of Services subject to the default and in such case will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for those Services performed up to the time of communication of such notice of termination to the Consultant. (b) If the Organization should fail to comply with its obligations under this Agreement, the Consultant must notify the Organization in writing of such default (a "Default Notice"). Upon receipt of a Default Notice, the Organization must correct the default at no additional cost to the Consultant, or issue a written notice of its own disputing the alleged default, in either case within thirty (30) days immediately following receipt of a Default Notice. If the Organization fails to correct the default, or issue a notice disputing the alleged default, in either case within thirty (30) days following receipt of the Default Notice, the Consultant may terminate the whole of this Agreement including the grant of license to the Software and in such case the Organization will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for that part of the Services performed in accordance with this Agreement up to the time of communication of such notice of termination to the Organization. (c) The Organization may terminate this Agreement, without cause, upon thirty (30) days written notice to Consultant. In such event the Organization will be responsible for payment to the Consultant of only that part of the fee earned by the Consultant for all software installed, all expenses incurred and that part of the Services performed in accordance with this Agreement up to the time of communication of such notice of termination by the Organization. 10.4 Procedure on Termination If this Agreement is terminated prior to the Completion of Services, then within thirty (30) days following such termination, the Organization shall return the Software to the Consultant and shall certify, under the hand of a duly authorized officer of the Organization, that all copies of the Software or any part thereof, in any form, within the possession or control of the Organization have been returned to the Consultant. If this Agreement is terminated following the Completion of Services, then the Organization may retain the copy of the Software in its possession as of the Completion of Services but it shall not be entitled to any additional Licenses, nor will it receive updates of, or modifications to, the Software made by the Consultant. Finally, it will not be entitled to access the Source through exercise of the license granted pursuant to Section 2.6 of this Agreement. Notwithstanding the foregoing, the Organization will remain subject to the obligations imposed upon it pursuant to this Agreement with respect to the Software, including, but not limited to, such obligations relating to ownership of the Software and confidentiality. - 25 - 10.5 Mediation The parties agree to submit any claim, controversy or dispute arising out of or relating to this Agreement or the relationship created by this Agreement to non-binding mediation before bringing a claim, controversy or dispute in a court or before any other tribunal. The mediation is to be conducted by either an individual mediator or a mediator appointed by mediation services mutually agreeable to the parties. The mediation shall take place at a time and location which is also mutually agreeable; provided; however, in no event shall the mediation occur later than ninety (90) days after either party notifies the other of its desire to have a dispute be placed before a mediator. Such mediator shall be knowledgeable in software system agreements. The costs and expenses of mediation, including compensation and expenses of the mediator (and except for the attorneys fees incurred by either party), is to be shared by the parties equally. If the parties are unable to resolve the claim, controversy or dispute within ninety (90) days after the date either party provides the other notice of mediation, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties. 10.6 Accounts and Records The Consultant shall: (a) keep proper and detailed accounts in accordance with accepted accounting practices of all factors entering into the computation of the amounts payable pursuant to this Agreement; and (b) for a period of two years from the date of Completion of Services by the Consultant, preserve all accounts and other documentation relating to the Organization and keep them available for inspection by the Organization or its representative, at any time. The Consultant agrees that this obligation shall survive any termination of this Agreement. 10.7 Addresses for Notice Any notice required or permitted to be given to any party to this Agreement shall be given in writing and shall be delivered personally, mailed by prepaid registered post or sent by facsimile to the appropriate address or facsimile number set out below. Any such notice shall be conclusively deemed to have been given and received on the day on which it is delivered or transmitted (or on the next succeeding business day if delivered or received by facsimile after 5:00 p.m. local time on the date of delivery or receipt, or if delivered or received by facsimile on a day other than a business day), if personally delivered or sent by facsimile or, if mailed, on the third business day following the date of mailing, and addressed, in the case of the Consultant, to: N. HARRIS COMPUTER CORPORATION (INNOPRISE SOFTWARE) 520 Zang Street, Suite 200 Broomfield, CO 80021 Attention: Executive Vice President Telephone: 303.226.0050 - 26 - and in the case of the Organization, to: CITY OF ASPEN, COLORADO City Hall 130 Galena Street Aspen, CO 81611 Attention: Project Manager Telephone: 970.920.5000 Fax: 970.920.5197 Each party may change its particulars respecting notice, by issuing notice to the other party in the manner described in this Section 10.7. 10.8 Assignment Neither Party may assign any of its rights or duties under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld, except that either Party may assign to a successor entity in the event of its dissolution, acquisition, sale of substantially all of its assets, merger or other change in legal status. The Agreement shall inure to the benefit of and be binding upon the Parties to this Agreement and their respective successors and permitted assigns. 10.9 Reorganizations The Organization acknowledges that the License fee set out in this Agreement has been established on the basis of the structure of the Organization at the date of this Agreement. To the extent that the Organization amalgamates, consolidates or undergoes any similar form of corporate reorganization or transition (a "Reorganization"), and the resulting entity (whether or not the Organization is the resulting or continuing entity) requires additional Licenses to support the system, the Consultant shall be entitled to receive, and the Organization shall pay, an additional License fee based on the then prevailing License fee in effect. The provisions of this Section 10.9 shall apply mutatis mutandis to any subsequent Reorganizations occurring following the first Reorganization. The provisions of this Section 10.9 shall not apply where the Organization undergoes a Reorganization involving only other organizations that have already purchased a License from the Consultant. For purposes of this Agreement, any corporate changes undergone by the Organization will be characterized as either an assignment, in which case Section 10.8 will apply, or a Re-organization, in which case Section 10.9 will apply, but it is not intended that Sections 10.8 and 10.9 will apply to any single sequence of events, if such application would result in a duplication of the fees provided for in those provisions. 10.10 Binding Agreement and Enurement This Agreement shall be binding upon the parties hereto and their respective successors and assigns. This Agreement shall enure to the benefit of the parties hereto and their respective successors and permitted assigns. - 27 - 10.11 Entire Agreement This Agreement shall constitute the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Consultant by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Organization acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein. 10.12 Independent Contractor Organization engages Consultant under this Agreement solely as an independent contractor to perform Consultant duties which are described in this Agreement. Organization and Consultant expressly acknowledge and agree that Consultant is the independent contractor of Organization and nothing contained in this Agreement or which otherwise exists shall be construed by Organization, Consultant or any third person or entity to create a relationship of joint venturers, partners, or employer and employee. 10.13 Governing Law This Agreement shall be governed by the laws of the State in which Organization is located. 10.14 Trial by Jury Organization and Consultant hereby waive, to the fullest extent permitted by applicable law, the right to trial by jury in any action, proceeding or counterclaim filed by any party, whether in contract, tort or otherwise, relating directly or indirectly to this Agreement or any acts or omissions of Consultant in connection therewith or contemplated thereby. 10.15 Invalidity The invalidity or unenforceability of any provision or covenant contained in this Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 10.16 Waiver A term or condition of this Agreement may be waived or modified only by written consent of both parties. Forbearance or indulgence by either party in any regard shall not constitute a waiver of the term or condition to be performed, and either party may evoke any remedy available under the Agreement or by law despite such forbearance or notice. - 28 - 10.17 Counterparts This Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same instrument. 10.18 Competitive Bid Organization has conducted a competitive evaluation and has concluded such efforts with this negotiated Agreement(including any addenda hereto); therefore, this Agreement may serve as the basis for similar agreements whereby other entities may contract separately with Consultant. Organization agrees that Consultant may disclose all or any portion of this Agreement to any of its current or prospective customers. 10.19 Further Assurances The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Agreement and carry out its provisions. 10.20 Covenant Against Contingent Fees. Consultant warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 10.21 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 Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Consultant for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Consultant reasonable notice of any changes in its membership or participation in CIRSA. 10.22 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. Consultant agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. - 29 - 10.22 Illegal Aliens—CRS 44 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 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. "E-verify program" means the electronic employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is jointly administered by the United States Department of Homeland Security and the social security Administration, or its successor program. "Department program" means the employment verification program established pursuant to Section 8-17.5-102(5)(c). "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, Consultant certifies and represents that at this time: (i) Consultant shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and (ii) Consultant has participated or attempted to participate in either the e-verify program or the department program in order to verify that new employees are not illegal aliens. (d) Consultant hereby confirms that: (i) Consultant shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (ii) Consultant shall not enter into a contract with a subcontractor that fails to certify to the Consultant that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. - 30 - (iii) Consultant shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the e-verify program or the department program. (iv) Consultant shall not use either the e-verify program or the department program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Consultant obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Consultant shall: (1) Notify such subcontractor and the City of Aspen within three days that Consultant has actual knowledge that the subcontractor is employing or subcontracting 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 stop employing or contracting with the illegal alien; except that Consultant 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 ai} illegal alien. (vi) Consultant 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 Consultant 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, Consultant shall be liable for actual and consequential damages to the City of Aspen arising out of Consultant's violation of Subsection 8-17.5-102, C.R.S. (viii) • If Consultant operates as a sole proprietor, Consultant hereby swears or affirms under penalty of perjury that the Consultant(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. - 31 - IN WITNESS WHEREOF the parties hereto have duly executed this Agreement on the day and year first written above. N. HARRIS COMPUTER CORPORATION Per: Name: Dennis J. Asbury Title: Executive Vice President CITY OF ASPEN, COLORADO Per: Name: Title: Per: Name: Title: - 32 - Schedule "A" Description of Software Selected Innoprise Suite Modules (Check Selected Licensed Products) ❑ FINANCIALS ❑ PAYROLL ❑ CIS �f ComDev ® Sales Tax ❑ WO - Facilities ❑ WO—Fleet ❑ Centralized Cash Receipts ® Citizen Access - Portal Selected Innoprise Suite Modules Software Licenses Software Licenses and Add-on Modules List Extended Innoprise Software Licenses 1 Sales Tax $ 25,000 $ 20,000 1 Citizen Access Portal $ 10,000 $ 9,000 Total Software License $ 35,000 Total Software License after Discounts $ 29,000 Selected Innoprise Suite Modules Support and Maintenance Fees Software Support and Maintenance Fees List Extended 1 Innoprise License Support and Maintenance $ 7,000 5,800 0 Annual Maintenance for Interfaces $ 1,000 1,000 Total Software Support and Maintenance Fees $ 8,000 Total Software Maintenance after Discounts $ 6,800 Required Programs - JBOSS/APACHE/SQL Server... - Appropriate Network Software - 33 - Schedule `B" Implementation Process and Timetable (page 1 of 2) Harris uses a systematic approach to control and ensure a successful implementation of your newly purchased software solution. The process can be summarized easily into the following 10 steps: 1. Project Kick-off 2. Administration& Operations Training 3. System Staging 4. Remote Hardware Set Up Assistance 5. Business Process Review(s) 6. Conversion Planning Session 7. Application Set Up Training 8. Data Conversion 9. Process Training 10. Live User Assistance The parties will agree upon an appropriate training schedule based on, among other things, the modules in respect of which training is required and the skills and availability of Organization staff members. - 34 - Schedule"B" Implementation Process and Timetable (page 2 of 2) Software Interfaces and Adapters List Extended 1 Financial Interface $ 7,500 $ 5,000 1 Citizen Access Credit Card Interface(with Innoprise Provider) $ - $ - Total Software Interfaces $ 7,500 Total Software Interfaces after Discounts $ 5,000 Hourly Services(requires SOW/scope of work) Rate Total 75 Project Management $ 150 11,250 32 Biz Process Gap/Fit-Requirements Assessment $ 150 4,800 24 Software Install Setup&Configuration $ 150 3,600 75 Data Conversion $ 150 11,250 24 Forms Layout and Implementation Services $ 150 3,600 32 System/Software Engineering and Consulting $ 150 4,800 32 System Training&Consulting $ 150 4,800 24 End-user Training $ 150 3,600 24 Train the Trainer Training $ 150 3,600 32 UAT Testing&Support $ 150 4,800 32 Production Turnover&Post-implementation Support $ 150 4,800 406 Total Services 60,900 - 35 - Schedule "C" Fee Structure and Payment Schedule Note: Fees for Services listed below are based on best estimates of the number of hours of work required to complete the Services outlined on Schedule "B" to this Agreement. Accordingly, the total of such fees will increase or decrease as the number of actual hours worked is greater than or less than such estimates. Payment Schedule: A. License Fees: $29,000 1. 25% Due upon contract execution 2. 65% Due upon completion of Set-up and Installation 3. 10% Due 30 days post go live/acceptance B. Consulting and Training Fees: $65,900 Invoiced monthly on the basis of actual hours of work to the completion of the project. 10% holdback Due 30 days post go live/acceptance C. Annual Support and Maintenance Fee $6,800 * D. Escrow Fees (Included for Year 1) $0 Total ls'Year Fees: $101,700 * Annual Support and Maintenance for 2012 is included in the above costs. Annual Support and Maintenance payments will begin January 2013. Software Support and Maintenance 396:: y 4 Increase Softtn Support and Maintenance `- 1 aim # , ,', � ;�, t� � k� 744 ,r C 1 ‘ scheda4 4%Year 1 Annual support and maintenance $6,800 Year 2 Annual support and maintenance $7,004 Year 3 Annual support and maintenance $7,214 Year 4 Annual support and maintenance $7,431 Year 5 Annual support and maintenance $7,653 Total Software Support and Maintenance $36,102 Fees Schedule "D" Support and Maintenance Agreement This support and maintenance agreement (the "Support and Maintenance Agreement") between Consultant and Organization becomes effective the earlier of ninety (90) days from the date of signing of the Software License, Implementation and Support and Maintenance Agreement or the date which represents the Completion of Services. Unless otherwise defined herein, all defined terms used herein shall have the meaning ascribed to them in the Software License, Implementation and Support and Maintenance Agreement. 1. Subject to the terms and conditions of this Support and Maintenance Agreement, Consultant shall provide support and maintenance services which include revisions, updates and enhancements to the Software and related materials under the Agreement. 2. Subject to the terms and conditions of this Support and Maintenance Agreement, Consultant shall provide software support via telephone and electronic mail, and site visits when necessary consistent with the hours of operation, all as described in Exhibit 1 hereto and in effect as of the date hereof, as such services may, at the discretion of Consultant, be modified or supplemented from time to time (provided that any changes generally apply to all licensees of Consultant). To enable Consultant to provide effective support, the Organization will establish auto remote access based on remote access procedures compatible with Consultant's practices. 3. In consideration for the support services specified in Section 2, Organization shall pay the Annual Support and Maintenance Fee of $6,800 with payments to begin January 2013. The Annual Support and Maintenance Fee will be billed annually in advance. beginning on the anniversary of the Support and Maintenance Agreement or on an alternative date mutually agreed to by both parties. If the Organization would like to match the annual invoicing of the Support and Maintenance Fee to its fiscal year or any other period it may request, in the initial year, that the Consultant issue a prorated invoice for the portion of the year remaining in said initial year. Consultant may change the Annual Support and Maintenance Fee from time to time. In addition to the Annual Support and Maintenance Fee, Organization shall reimburse Consultant for its direct expenses in providing support services pursuant to this Agreement, including, but not limited to: (a) courier services, photocopying, faxing and reproduction services, all reasonable travel costs, including a travel time rate of $50.00/hour, meal expenses of not more than $50.00 per diem (no receipts provided) and a mileage charge consistent with the Internal Revenue Service published guidelines, long distance telephone calls and all other reasonable expenses incurred in the performance of Consultant's duties hereunder. Consultant may update its reimbursement policies from time to time, in which case such updated policies shall apply for purposes of this Support and Maintenance Agreement, provided that such updated reimbursement policies must generally apply to all clients of Consultant. - 37 - 4. All support services provided by Consultant to Organization other than those specified in Section 2 (such as, but not limited to, on-site support), shall be provided to Organization by Consultant at Consultant's then prevailing prices, hourly rates, policies and terms. For certainty, any updates of, or enhancements to, the Software will be made available to Organization free of charge (with respect to the actual updates or enhancements), but all services provided by Consultant with respect to such updates or enhancements will be subject to the Consultant's then-prevailing prices, hourly rates, policies and terms, meaning that such then-prevailing prices will apply to matters such as set-up and training relating to such updates or enhancements. 5. All payments hereunder shall be in U.S. dollars and shall be net of any taxes, tariffs or other governmental charges. 6. The initial term of this Agreement shall be for one year beginning on the date determined in the opening paragraph of this Schedule D (the "effective date"). Thereafter, the Agreement shall automatically renew on an annual basis, unless terminated by either party upon giving to the other not less than 30 days' notice in writing prior to the end of the initial term or any subsequent anniversary of such date. Organization shall pay the then prevailing Annual Support and Maintenance Fee in advance for each term of the Support and Maintenance Agreement. If the Support and Maintenance Agreement is terminated by Organization, it shall be entitled to retain the Software licensed to it as at the date of such termination, but it will relinquish its rights to receive upgrades of, or enhancements to, the Software, services for the Software, or access to the Source in escrow upon the occurrence of any event specified in Section 2.6(d) of the Agreement. For certainty, and without mitigating the application of the Agreement during the term of this Support and Maintenance Agreement, the terms and conditions of the Agreement relating to the license of the Software and the Documentation and the rights and obligations of the parties with respect thereto will continue to apply to Organization following the termination of this Agreement. 7. Title to and ownership of all proprietary rights in the Software and all related proprietary information shall at all times remain with Consultant, and Organization shall acquire no proprietary rights by virtue hereof. 8. Unless terminated pursuant to Paragraph 6 hereof, this Support and Maintenance Agreement shall remain in full force and effect except as terminated as follows: (a) if either party neglects or fails to perform, observe or cure within ninety (90) days of written notice of such failure to perform any of its existing or future obligations. (b) If Organization attempts to assign this Agreement or any of its rights hereunder, or undergoes a Reorganization, without complying with the Agreement. 9. Unless otherwise agreed to by the parties, all notices required hereunder shall be made in accordance with the provisions of the Agreement. 10. Either party's lack of enforcement of any provision in this Support and Maintenance - 38 - Agreement in the event of a breach by the other shall not be construed to be a waiver of any such provision and the non-breaching party may elect to enforce any such provision in the event of any repeated or continuing breach by the other. 11. A valid contract binding the parties hereto shall come into being only upon execution of this Support and Maintenance Agreement by a duly authorized agent, officer or representative of both parties. 12. This Support and Maintenance Agreement is the exclusive statement of the entire support and maintenance agreement between Consultant and Organization. No change, termination or attempted waiver of any of the provisions hereof shall be binding unless in writing and signed by the party against whom the same is sought to be enforced. 13. The parties hereto agree that the terms and conditions contained herein shall prevail notwithstanding any variations on any orders submitted by Organization. 14. The particular provisions of this Support and Maintenance Agreement shall be deemed confidential in nature and neither Organization nor Consultant shall divulge any of its provisions as set forth herein to any third party except as may be required by law. 15. (a) Termination of this Support and Maintenance Agreement shall not affect any right of action of either party arising from anything which was done or not done, as the case may be, prior to the termination taking effect. (b) The Organization and the Consultant recognize that circumstances may arise entitling the Organization to damages for breach or other fault on the part of the Consultant arising from this Support and Maintenance Agreement. The parties agree that in all such circumstances the Organization's remedies and the Consultant's liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Support and Maintenance Agreement. - 39 - (i) FOR BREACH OR DEFAULT BY THE CONSULTANT OR OTHERWISE IN CONNECTION WITH THIS SUPPORT AND MAINTENANCE AGREEMENT, INCLUDING A BREACH OR DEFAULT ENTITLING THE ORGANIZATION TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT AND WHETHER IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL BREACH, THE ORGANIZATION'S EXCLUSIVE REMEDY, IN ADDITION TO ELECTING IF SO ENTITLED TO RESCIND OR BE DISCHARGED FROM THE PROVISIONS OF THIS SUPPORT AND MAINTENANCE AGREEMENT, SHALL BE PAYMENT BY THE CONSULTANT OF THE ORGANIZATION'S DIRECT DAMAGES TO A MAXIMUM AMOUNT EQUAL TO, AND THE CONSULTANT SHALL IN NO EVENT BE LIABLE IN EXCESS OF, THE AMOUNT OF FEES ACTUALLY PAID BY THE ORGANIZATION TO THE CONSULTANT UNDER THIS SUPPORT AND MAINTENANCE AGREEMENT DURING THE THEN-CURRENT TERM OF THE SUPPORT AND MAINTENANCE AGREEMENT UP TO AND INCLUDING THE DATE OF TERMINATION. (ii) IN NO EVENT SHALL ANY DAMAGES INCLUDE, NOR SHALL THE CONSULTANT BE LIABLE FOR, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE CONSULTANT SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, OR FOR ANY CLAIM WHATSOEVER AGAINST THE ORGANIZATION BY ANY OTHER PARTY. (iii) CLAUSES (i) AND (ii) SHALL APPLY IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY THE ORGANIZATION IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, DEMAND OR ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT. 16. The parties hereby confirm that the waivers and disclaimers of liability, releases from liability, limitations and apportionments of liability, and exclusive remedy provisions expressed throughout this Support and Maintenance Agreement shall apply even in the event of default, negligence (in whole or in part), strict liability or breach of contract of the person released or whose liability is waived, disclaimed, limited, apportioned or fixed by such remedy provision, and shall extend to such person's affiliates and to its shareholders, directors, officers, employees and affiliates. 17. Where remedies are expressly afforded by this Support and Maintenance Agreement, such remedies are intended by the parties to be the sole and exclusive remedies of the Organization for liabilities of the Consultant arising out of or in connection with this - 40 - Support and Maintenance Agreement, notwithstanding any remedy otherwise available at law or in equity. 18. This Support and Maintenance Agreement shall be governed by the laws of the State in which the Organization is located. 19. This Support and Maintenance Agreement may not be assigned by the Organization unless, concurrently with any such assignment, the Organization assigns its rights under, and complies with the provisions of the Agreement. 20. This Support and Maintenance Agreement shall be binding upon the successors and assigns of the parties and enure to the benefit of the successors and permitted assigns of the parties. 21. Time shall be of the essence of this Support and Maintenance Agreement. 22. The invalidity or unenforceability of any provision or covenant contained in this Support and Maintenance Agreement shall not affect the validity or enforceability of any other provision or covenant herein contained and any such invalid provision or covenant shall be deemed to be severable. 23. The parties shall do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated hereby, and each party shall provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purposes of this Support and Maintenance Agreement and carry out its provisions. 24. This Support and Maintenance Agreement may be executed in counterparts (whether by facsimile signature or otherwise), each of which when so executed shall constitute an original and all of which together shall constitute one and the same agreement. -41 - IN WITNESS WHEREOF, the Parties have executed this Support and Maintenance Agreement to be effective as of the date first written above. N. HARRIS COMPUTER CORPORATION (INNOPRISE) Per: Name: Dennis J. Asbury Title: Executive Vice President CITY OF ASPEN, COLORADO Per: Name: Title: Per: Name: Title: 42 - EXHIBIT 1 Standard Support and Maintenance Services— Standard Guidelines The purpose of this Exhibit I is to provide our customers with information on our standard coverage, the services which are included as part of your annual software support, a listing of call priorities, an outline of our escalation procedures and other important details. Consultant reserves the right to make modifications to this document as required; provided, however, Consultant shall not reduce the scope of support provided hereunder without the prior consent of the Organization. The services listed below are services that are included as part of your software support. • 800 Toll Free Telephone support • Software for Life - Guaranteed Support on your existing applications for life - Cost effective upgrade solutions • Scheduled assistance for installations, upgrades & other special projects (there may be charges depending on the scope of work) • Technical troubleshooting & issue resolution • E-mail support call logging and notification • Free eSupport access 24 x 7 with the following on-line benefits: - Log & close calls - View& update calls - Update contact information - Access published documentation - Access available downloads - Access Support knowledge base - Participate in Discussion Forums - Report on metrics • Standard software releases and updates - Defect corrections (as warranted) - Planned enhancements - State and/or Federal mandated changes (charges may exist depending on scope) - Payroll regulated changes - Participation in BETA program - Release notes • Limited training questions (15 minute guideline) • Customer Care Program - Quarterly News Letter with support tips - Technical support bulletins - Communication on new products and services - On-site visits (as required) • Design review for potential enhancements or custom modifications • Outstanding Calls Report with conference call (as required) • Ability to attend the annual customer conference (attendance fees apply) - 43 - HelpDesk Hours Our standard hours of support are from 9:00 a.m. EST to 6:00 p.m. EST, Monday to Friday, excluding designated statutory holidays. Support is available from 6:00 p.m. EST through to 9:00 a.m. EST and is billable on an hourly basis. Support hours may vary by specific product line. Weekend assistance is available and must be scheduled in advance and in most cases is billable. Response Times Response times will vary and are dependent on the priority of the call. We do our best to ensure that we deal with incoming calls in the order that they are received, however calls will be escalated based on the urgency of the issue reported. Our response time guidelines are as follows: Priority 1: 1 - 8 hours Priority 2: 4 - 10 hours Priority 3: 2 business days Call Priorities In an effort to assign our resources to incoming calls as effectively as possible, we have identified three types of call priorities, 1, 2 & 3. A Priority 1 call is deemed by our support staff to be an Urgent or High Priority call, Priority 2 is classified as a Medium Priority and Priority 3 is deemed to be a Low Priority. The criteria used to establish guidelines for these calls are as follows: Priority 1 —High • System Down(Software Application, Hardware, Operating System, Database) • Inability to process payroll checks • Inability to process accounts payable checks • Inability to process bills • Program errors without workarounds • Incorrect calculation errors impacting a majority of records • Aborted postings or error messages preventing data integration and update • Performance issues of severe nature impacting critical processes • Hand-held interface issues preventing billing - 44 - Priority 2 -Medium • System errors that have workarounds • Calculation errors impacting a minority of records • Reports calculation issues • Printer related issues (related to interfaces with our software and not the printer itself) • Security issues • Hand-held issues not preventing billing • Performance issues not impacting critical processes • Usability issues • Workstation connectivity issues (Workstation specific) Priority 3 - Low • Report formatting issues • Training questions, how to, or implementing new processes • Aesthetic issues • Issues with workarounds for large majority of accounts • Recommendations for enhancements on system changes • Questions on documentation - 45 - Call Process All issues or questions reported to support are tracked via a support call, our support analysts cannot provide assistance unless a support call is logged. Our current process for logging calls includes the following: eSupport(via website), email,phone and fax. • Your call must contain at a minimum: your organization name, contact person, software product and version, module and/or menu selection, nature of issue, detailed description of your question or issue and any other information you believe pertinent. • Our support system or one of our support analysts will provide you with a call id to track your issue and your call will be logged into our support tracking database. • Your call will be stored in a queue and the first available support representative will be assigned to deal with your issue. • As the support representative assigned to your call investigates your issue, you will be contacted and advised as to where the issue stands and the course of action that will be taken for resolution. If we require additional information, you will be contacted by the assigned support representative to supply the information required. • All correspondence and actions associated with your call will be tracked against your all in our support database. At any time, if available to you, you may log onto our website to see the status of your call. • Once your call has been resolved, you will receive an automated notification by email that your call has been closed. This email will contain the entire event history of the call from the time the call was created and leading up to the resolution of the call. You also have the option of viewing both your open and closed calls, if available to you, via our website. • If your issue needs to be escalated to a development resource or programmer for resolution, your issue will be logged into our development tracking database and you will be provided with a separate id number to track the progress of the issue. At this time, your support call will be closed and replaced by the development id number. The development id number will remain open until your issue has been completely resolved. Issues escalated to development will be scheduled for resolution and may not be resolved immediately depending on the nature and complexity of the issue. • Contact the support department at your convenience for a status update on your development issues, or log onto our website (if available to you) to view your issues on- line. - 46 - Escalation Process Our escalation process is defined below. This process has been put in place to ensure that issues are being dealt with appropriately. If at any time you are not completely satisfied with the resolution of your issue, you are encouraged to escalate with the support department as follows: Level 1: Contact the support representative working on your issue Level 2: Contact the support supervisor or group lead Level 3: Contact the director of support Level 4: Contact the vice president of support Level 5: Contact the Executive Vice President of Innoprise (Harris) Holiday Schedule Below is a listing of statutory holidays. Please note that support services will be closed on designated days as outlined below. New Year's Eve Closed New Year's Day Closed Martin Luther King Holiday Closed Memorial Day Closed 4th of July Closed Labor Day Closed Veteran's Day Closed Thanksgiving Day Closed Day after Thanksgiving Closed Christmas Eve Closed Christmas Day Closed Day after Christmas (Boxing Day) Closed - 47 - Billable Support Services The services listed below are services that are out of scope of your support and maintenance agreement and are therefore considered billable services. • Extended telephone training • Forms redesign or creation(includes Bill Prints, Notice Prints and Letters) • Setup & changes to hand-held interface or creation of new interface • Setup of new services or changes to services (PAP, ACH, etc) • File imports/exports - Interfaces to other applications • Refreshes, backups, restores, setting up test areas • Setup of new printers, printer setup changes • Custom modifications (reports, bills, forms, reversal of customizations) • Setting up additional companies/ agencies/tokens/general ledgers • Data conversions/global modification to setup table data • Database maintenance, repairs &optimization • Extended Hardware & Operating System support • Upgrades & support of third party software • Installations /re-installations (workstations, servers) Test Databases & Environments We support customers in the maintenance of independent Test Environments for testing purposes. This allows customers the opportunity to test fixes, modifications, new business processes and/or scenarios without risking any potentially unwanted changes to the live environment. The creation of Test Databases & Environments is a billable service, quotations & incremental maintenance rates will be provided on request. Connection Methods To ensure we can effectively support our clients, we require that a communication link is established and maintained between our two sites. It is the client's responsibility to ensure the connection is valid at your location so that we can connect to your site and resolve any issues. Our supported methods of connection are: Direct interne, Virtual Private Network (VPN), Remote Access Server (RAS), Direct Connection (modem) and Terminal Services (a backup connection may be required for file transfers). - 48 - Hardware and Third Party Support—if applicable The purpose of this section is to provide our customers with information on our standard coverage and the services which are included as part of your annual hardware and third party software support (if applicable). This section serves as a guideline for the support department but is superceded by an existing third party or other agreement. Standard Hardware and Third Party Software Support Services • 800 telephone support—first line phone support for troubleshooting (note more complex issues will be escalated to the actual vendor of the products) • "on call" after hours support (scheduled assistance for installations, upgrades and other special projects—there may be charges depending on the scope of work) • remote connection support • technical troubleshooting • limited training questions (15 minute guideline) • assistance with creation of backup scripts/backup recovery • assistance with recovering data resulting from system crashes (charges may apply) • recommendations on specific hardware requirements • support provided for installed database issues (30 minute guideline) • ODBC installation and connection to database assistance • updating databases to support new versions of installed applications • assistance with database installation, configuration and updating - 49 - The services listed below are services that are out of scope and are therefore considered billable —please note that we do not provide hardware support for any printers: • on-site installation or upgrade of hardware and third party software • extended telephone training (beyond 15 minutes) • reconfiguration of hardware and fileservers • recovering data resulting from client error • upgrading of hardware systems • preventative maintenance monitoring or other services • recommending or assisting with disaster recovery plans • re-establishment of ODBC connection if connection was lost due to actions of customer • ODBC connections to other third party products • creation of custom reports • report writer training, upgrades and installations (other than at time of initial purchase) - 50 - p v t MEMORANDUM TO: Mayor and City Council FROM: Kathryn Koch, City Clerk DATE: March 15, 2012 RE: Resolution 4012,Contract—AlphaCorp, Inc. d/b/a SIRE Technologies Software License Agreement—Agenda anagement REQUEST OF COUNCIL: Staff requests approval of Resolution#2012, and the attached contract with AlphaCorp, Inc. d/b/a SIRE Technologies Software License Agreement for$57,381. This software is for the agenda management program to be used to produce Council agenda packets. BACKGROUND: The City has been investigating entering the 21s`Century and supporting the city's canary goals by going to electronic agendas. In 2011, a request for proposals for electronic agendas was sent out. Five proposals were returned. A team made up of myself, Rebecca Hodgson, city manager's office,John Sobieralski, IT, and Johannah Richards, community development department, reviewed these proposals and narrowed it to two companies, SIRE Technology and Granicus. In November 2011,each company, SIRE Technology and Granicus, presented a demonstration to a larger group of city staff including finance, IT, community development department, attorneys and assistant city managers. In a follow up meeting,this group unanimously supported going with SIRE. Use of their program flowed more easily and was more intuitive. Their technology appeared to work better with I-pads. In February 2012, Rebecca Hodgson and I went to two Colorado cities, Centennial and Breckenridge,to see the technology in action. John Sobieralski, IT department, contacted 5 users to get a feeling of how the systems worked with their information systems department. All references were extremely positive. DISCUSSION: Besides taking advantage of current technology, agenda management will save staff time on paper agenda production. The drafting, review and creation of an agenda packet will all be done electronically. Council packets will be available on our website as they are now, and getting them to the website will be less labor intensive. Development applications are already given to community development department electronically but applicants are also required to provide 10 paper copies, which will no longer be necessary. The City Clerk's office can produce one simple paper packet, if necessary, for public.There are applications other than electronic agenda production. The software will integrate with webcasting and with the city's electronic file system. FINANCIAL/BUDGET IMPACTS: The first year costs of$57,381 are proposed to come out of departmental savings: City Clerk savings $20,381 Central savings $28,000 The difference will be made up from the city clerk's annual operation budget for 2012. After the first year,the annual costs will be $16,920. The city clerk's department currently pays $9,000 per year for webcasting so the difference will be$7920. There will be an estimated per copy savings of$2790 (93,000 X .03). The city clerk's department will address this difference in a supplemental request for the 2013 budget, if necessary. ENVIRONMENTAL IMPACTS: This purchase fits nicely with the city's goal to reduce their carbon footprint. Staff estimates 93,000 pieces of paper will be saved/year. Because the servers needed for the Agenda Management software will be hosted in SIRE's cloud-based data center, the city will save the cost of purchasing server hardware as well as ongoing power and cooling costs. RECOMMENDED ACTION: Staff recommends Council approve the attached resolution to purchase agenda management software. ALTERNATIVES: The city can continue doing agenda production as is done currently. The city clerk will cry. PROPOSED MOTION: I move to approve Resolution#25Series of 2012, approving a contract with AlphaCorp to purchase agenda management software. QeC d�c u n t S1 gp cY2 T! S egha nal RESOLUTION AS— (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AND ALPHACORP, INC D/B/A SIRE TECHNOLOGIES, APPROVING A CONTRACT FOR PURCHAE OF AGENDA MANAGEMENT SOFTWARE BETWEEN THE CITY OF ASPEN AND ALPHACORP. INC. AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for purchase of agenda management software, between the City of Aspen and Alphacorp, Inc., a true and accurate copy of which is attached hereto as Exhibit «A". NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for purchase and installation of agenda management software, between the City of Aspen and Alphacorp, Inc. a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 26th day of March 2012. 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 March 26, 2012 Kathryn S. Koch, City Clerk SIRE TECHNOLOGIES HOSTED SERVICE AGREEMENT 2211 West 2300 South West Valley City,Utah 84119 This Maintenance Agreement is made by and between SIRE TECHNOLOGIES RISK OF LOSS. This Agreement does not cover service, maintenance or and: repair necessitated by loss or damage resulting from any cause beyond the control of SIRE TECHNOLOGIES, including, but not limited to loss or CUSTOMER AND PRINCIPAL ADDRESS damage due to fire,water,lightning,earthquake,riot,unauthorized service or i I modifications,theft, or any other cause originating outside the Product. With City of Aspen respect to any loss or damage, SIRE TECHNOLOGIES shall submit to the 130 South Galena Street Customer a description of the work to be done and request the Customer's Aspen,Colorado 81611-1975 consent to restore the Product to normal operating condition at SIRE TECHNOLOGIES'rates. If the Customer does not agree to restore Product to normal operating condition, SIRE TECHNOLOGIES shall have the right to hereafter referred to as "Customer". Under this Agreement, SIRE terminate its obligations under this Agreement. TECHNOLOGIES shall maintain the following Product,at the rates shown: PERFORMANCE.SIRE TECHNOLOGIES shall exercise its best efforts in ANNUAL MAINTENANCE CHARGES performing services covered under this Agreement,but shall not be liable for I I damages, direct or otherwise, for failure to perform services at a location deemed hazardous to health or safety or arising out of delays or failure in See Attached Product List and Charges furnishing parts or services caused by Acts of God,Acts of Government,labor disputes or difficulties, failure of transportation, or other causes beyond its I control,or for any consequential damage whatsoever. and on any attached schedule(s),hereafter called"the Product"according to the maintenance services set forth in the following"Terms and Conditions" LIABILITY. SIRE TECHNOLOGIES shall not be responsible, nor incur liability of any kind, nature or description to the Customer, its agents or •Product-is defined as equipment and/or software as applicable employees or any other firm or corporation,whether direct or consequential,in event of failure or fault in condition or operation of the Product or for errors of TERMS AND CONDITIONS omission in the transmission or display of information arising from the actual or alleged use of operation of the Product. TERM.The initial term of this Agreement is for a period of 1 year and 120 days from the effective date of . Upon expiration of the SIRE TECHNOLOGIES'S LIABILITY. SIRE TECHNOLOGIES shall initial term of the Agreement,it shall be deemed renewed with the same terms and procure and maintain in full force and effect at all times during the conditions for further successive periods of 5 year(s)unless either party has given performance of on-site maintenance under this Agreement, Workmen's the other party written notice not less than thirty(30)days prior to the expiration Compensation Insurance. SIRE TECHNOLOGIES personnel shall comply of the initial term or subsequent renewal term(s). with,all reasonable rules and regulations in effect at the Customer site. CHARGES.The charges for the maintenance described hereunder,are the total DEFAULT. In the event of payment default by the Customer, SIRE of the charges listed above. SIRE TECHNOLOGIES shall invoice the Customer TECHNOLOGIES shall he entitled to collect interest and collection costs, sixty days prior to anniversary date,and the Customer shall pay the aggregate to including court costs and reasonable attorney's fees.In the event of default by SIRE TECHNOLOGIES within ten(45)days of the date of each invoice. SIRE the Customer in any term or condition herein,SIRE TECHNOLOGIES may,at TECHNOLOGIES has the right to increase maintenance charges at each its option,refuse service or terminate its obligations under this Agreement. anniversary or the effective date,by an amount not exceeding 5 percent of the total maintenance agreement. Written notice of such increase shall be given to the NOTIFICATION.Any notice required herein shall be in writing and shall be customer not less than thirty(30)days before the anniversary of the effective date. deemed given if mailed or delivered to the other party at its last known mailing In addition,the Customer shall pay all federal,state,or local taxes on the services address. rendered or parts supplied. WAIVER. This instrument contains the entire Agreement of the parties. It SERVICE HOURS. When software is covered by this agreement, the cannot be changed, altered or modified orally. All changes or modifications maintenance agreement provides for unlimited telephone software support. If the must be in writing by the parties hereto. customer requests on site support the customer will be billed at SIRE TECHNOLOGIES established service rates plus expenses. SIRE TAX. The customer is responsible for any and all tax. TECHNOLOGIES shall provide maintenance service as expeditiously as possible after notice from the Customer that the Product is inoperable. Service may be TYPES OF SUPPORT. Technical support includes telephone and email obtained during maintenance center office hours which are 6:00 AM to 6:00 PM when the customer has problems or questions. daily (Mountain Standard Time), Monday through Friday, excluding public holidays. Service at times other than during maintenance center hours, shall be SOFTWARE SUPPORT. The customer will supply the conditions and data furnished upon the Customers request and at SIRE TECHNOLOGIES' which caused the malfunction and help reproduce the failure. established charges for labor and travel in effect at the time such service is performed. Hosting Services include monitoring and maintenance of the hardware and systems stored in our co-locate facility.SIRE provides 24/7 technical and end-user support for the co-locate system and hardware located in the co-locate facility. SIRE TECHNOLOIGES TITLE DATE RIGHT TO SUBCONTRACT.SIRE TECHNOLOGIES shall have the right to subcontract maintenance services to any qualified agent. CITY OF ASPEN TITLE DATE SERVICE NOTIFICATION.The Customer shall notify SIRE TECHNOLOGIES of suspected Product malfunction,by calling SIRE TECHNOLOGIES service and identifying the problem and symptoms.Notification may be made to SIRE TECHNOLOGIES by phone at 801-415-0626 or email: support@siretechnologies.com Hosted Service Product List and Charges Item Quantity Serial Description Annual Rate$ Number Number 1 Agenda Management $14,520.00 1 Workflow Management Included 1 Meeting Management—Minutes Plus $2,400.00 1 Laserfiche Integration $600.00 1 ESRI Integration $600.00 Discount -$4,791.00 1 SIRE Video Streaming $3,900.00 Total Annual Fee $17,229.00 ADDENDUM TO SOFTWARE MAINTENANCE AGREEMENT This Addendum("Addendum") is made and entered into by and between SIRE Technologies and the City of Aspen(also referred to as the"Customer") and hereby amends certain provisions of the Agreement. SIRE Technologies and the City of Aspen agree to make the amendments to the Agreement described in this Addendum. Initially capitalized terms not otherwise defined in this Addendum shall have the meaning(s)set forth in the Agreement. Except as otherwise provided in this Addendum, all other provisions of the Agreement shall remain in full force and effect. The following provisions shall be added to the agreement: This AGREEMENT is made as of the day of in the year of 1. Covenant Against Contingent Fees. The SIRE Technologies warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for the SIRE Technologies, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 1. 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. SIRE Technologies 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 SIRE Technologies 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 SIRE Technologies. 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 SIRE Technologies. SIRE Technologies shall be solely and entirely,responsible for its acts and for the acts of SIRE Technologies's agents, employees, servants and subcontractors during the performance of this contract. SIRE Technologies 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 SIRE Technologies and/or SIRE Technologies's employees engaged in the performance of the services agreed to herein. 2. Indemnification. SIRE Technologies agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool (the "City Indemnitees"), 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 property damage, or any other loss of any kind whatsoever, including all attorneys' fees and costs, which arise out of or are in any manner connected with this contract, but only to the extent that such injury, loss, or damage is caused in whole or in part by the acts, omissions, errors, SIRE Technologies errors, mistake, negligence, or other fault of the SIRE Technologies, any subcontractor of the SIRE Technologies, or any officer, employee, representative, or agent of the SIRE Technologies or of any subcontractor of the SIRE Technologies, or which arises out of any Worker's Compensation claim of any employee of the SIRE Technologies or of any employee of any subcontractor of the SIRE Technologies. The SIRE Technologies shall reimburse the City for the defense costs, including attorneys' fees, incurred by the City in connection with any such liability, claims, or demands if it is determined that such injury, loss, or damage was caused in whole or in PSI-97l.doc Page 1 part by the acts, omissions, or other fault of the SIRE Technologies, its officers,or its employees. In such event, the SIRE Technologies shall reimburse the City for that portion of any judgment, damages or loss, including attorneys' fees and costs, attributable to such acts, omissions, or other fault of the SIRE Technologies, its officers, or employees. 3. SIRE Technologies's Insurance. (a) SIRE Technologies 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 SIRE Technologies pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The SIRE Technologies 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) SIRE Technologies shall procure and maintain, and shall cause any subcontractor of the SIRE Technologies 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 SIRE Technologies pursuant to Section 10 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 Colorado 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. The policy shall contain a waiver of subrogation in favor of the City. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision and a waiver of subrogation in favor of the City. (iii) SIRE Technologies Liability insurance with the minimum limits of TWO MILLION DOLLARS ($2,000,000) each claim and TWO MILLION DOLLARS ($2,000,000)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 SIRE Technologies. No additional insured endorsement to the policy required PS1-971.doc Page 2 above shall contain any exclusion for bodily injury or property damage,arising from completed operations. The SIRE Technologies shall be solely responsible for any deductible losses under any policy required above. (d) The Certificate of Insurance shall be completed by the SIRE Technologies'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 SIRE Technologies 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 SIRE Technologies to City upon demand, or City may offset the cost of the premiums against monies due to SIRE Technologies from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 4. The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 5. 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 Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to SIRE Technologies for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide SIRE Technologies reasonable notice of any changes in its membership or participation in CIRSA. 6. 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. 7. Notice. Any written notices as called for herein may be hand delivered to the respective persons and/or addresses listed below or mailed by certified mail return receipt requested, to: City: SIRE Technologies: City Manager City of Aspen 130 South Galena Street Street Address Aspen,Colorado 81611 PSI-97l.doc Page 3 City, State&Zip Code 8. 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. SIRE Technologies agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non- discrimination in employment. 9. 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 SIRE Technologies to which the same may apply and, until complete performance by SIRE Technologies 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. 10. 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: (a) Contract amounts less than $25,000.00: Agreements for total compensation amounts less than $25,000.00 shall not be binding on the City unless duly executed by the City Manager of the City of Aspen, or a duly authorized official in his absence. A Motion or Resolution of the Council of the City of Aspen is not required for Agreements with total compensation less than $25,000.00. (b) Contract amounts in excess of$25,000.00: Agreements for amounts in excess of $25,000.00 shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen, or a duly authorized official in his absence, following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor, or a duly authorized official in his absence, to execute the same. 11. Illegal Aliens—CRS i$ 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 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. "E-verify program" means the electronic employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, PSI-971.doc Page 4 as amended, that is jointly administered by the United States Department of Homeland Security and the social security Administration, or its successor program. "Department program" means the employment verification program established pursuant to Section 8-17.5-102(5)(c). "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, SIRE Technologies certifies and represents that at this time: (i) SIRE Technologies shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and (ii) SIRE Technologies has participated or attempted to participate in either the e-verify program or the department program in order to verify that new employees are not illegal aliens. (d) SIRE Technologies hereby confirms that: (i) SIRE Technologies shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (ii) SIRE Technologies shall not enter into a contract with a subcontractor that fails to certify to the SIRE Technologies that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. (iii) SIRE Technologies has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the e-verify program or the department program. (iv) SIRE Technologies shall not use the either the e-verify program or the department program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If SIRE Technologies obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, SIRE Technologies shall: (l) Notify such subcontractor and the City of Aspen within three days that SIRE Technologies has actual knowledge that the subcontractor is employing or subcontracting with an illegal alien; and PSI-971.doc Page 5 (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not stop employing or contracting with the illegal alien; except that SIRE Technologies 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) SIRE Technologies 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 SIRE Technologies 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, SIRE Technologies shall be liable for actual and consequential damages to the City of Aspen arising out of SIRE Technologies's violation of Subsection 8-17.5-102, C.R.S. (viii) If SIRE Technologies operates as a sole proprietor, SIRE Technologies hereby swears or affirms under penalty of perjury that the SIRE Technologies (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. 12. 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 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. 13. Choice of Law/Choice of Forum. Paragraph 18 is hereby amended to read as follows: Both parties hereby agree that this Agreement shall be exclusively governed and interpreted according to the laws of the State of Colorado and that venue for in action, suit or proceeding shall be in the District Court for the County of Pitkin, State of Colorado. PSI-971.doc Page 6 IN WITNESS WHEREOF,the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. ATTESTED BY: CITY OF ASPEN, COLORADO By: Title: Date: WITNESSED BY: SIRE TECHNOLOGIES By: Title: Date: PS1-971.doc Page 7 Vendor Name: Table 1:Costs Hosted Software 0 n sere. Items One-tine Costs Arms Casts Comment SRWda9YYwiFnYl11Y e. Wanda M- 514.520.00 Workflow Man t..meM Included Included lylm Specifically Is this?This module Is our SIRE Minutes Plus meads. you were to Owed*to stay with Gnats Streaming you would net need this module.This modal aloe you to create your minutes, Meeting Management(SIRE Minutes Plus) $2,¢00.00 record motions and voles end manage speakers. Site License vs Concurrent License vs Unlimited License • a I - Other solmarenhiepradon required To what extent an llwse satwarealmgedada • The Laserfthe inegrekan mould albs you In expert at Agendas.Minutes and other documents Lase?Me 5 3000.00. 5600.00 were other iMgattim cewbdees you desired thole could be discussed, t�a T e ESRI ttegration wcun stew you Is associate Agenda deals Wh M11 ESRI $ 3gggm $6W.W addressesorlocaions onamao. _ Gransua $ 3000➢0 Subtotal $ POMO° $ 1870040 _.. _. Discounts) I TdsSDMav•CUB $ 9400.90 $ 18123.00 sonless _.l Pimrc function. $18.900.00 irani PInM documentation.treivly a testing Included a in Training MV Irclutlei o Maintenance and User Support(beyond annual maintenance cost) Hosting 5.00 SIRES S6.]50.W Sedan does this Include?What are some lower priced options? SIRE Agenda Pamaand WmMloi -Cost-e layer day. d- SIRE Agenda Pea Reviewer Training Cost Der day. SIRE Agenda Plus Reviewer Ting-Cot Cost day day. SIRE Agenda Plus Trwkng-Cstperd per day. - - SIREMinutePlusTnenlim-COSt per day. Integration Development 30.00 saw 'I User Acceptance Testing MAT)Trainino.Oeveopment 8 $1,353003 • • • Travel and Expenses 53 600.00 TolS Smote S 30,900.00 Purely*,Mostke 5130118.80 78148 • • r _... Electronic Voting $0.00 $0.00 Delete this¢liters Included in Agenda Electronic Forms Management above This belle one time cal for our smeamiq software to replace the Gnanicua Web Streaming $3030.00 S600.00 Product. - • Externally Hosted 53900.W s I Other Mowed: _.... . ',Table7licenses ,. _ _ _ __._ _... _— I One Time Costs Anmtsl Costs Comments $ ods Unlimited Licenses 590,195.00 $9,099.00 Installedodinn Ste License Same as uKmeed licenses r._ This is a hosted option and there is not a one time fee.There would he an • Concurrent License annul fee of 310,520.00 _ Explain the Ncenetlsite NOensNWlmNed NegnJeonamN license tees/options as It apples to a hosted option. _.. As shown above Unlimited license and Site license and the one time cost really relates loan installed solution.In the hosted envramwX the software S provided as software as a service and there is not an actual Mans*provided.We provide Me software as a oervice to you and allay you so many users on the system at any one time.In abs proposal we ace actuary alMnnp you to have an unlimited tenter d users.There is an annual fee M us ropovide this service. Project Plan Draft March 7, 2012 Installation of SIRE Technologies Agenda Plus / Minutes Plus / / Video Conversion THE CITY OF ASPEN By: Randall Warner, Project Manager, SIRE Technologies Page 1 of 11 1. Project Overview The City of Aspen is partnering with SIRE Technologies to implement an agenda management solution encompassing Agenda Plus, Forms, Minutes Plus, Video Plus and Archived Video Conversion for the purpose of automating the collection and production of documents presented for City Council meetings, and recording the proceedings of the Council. Implementing the SIRE agenda management system will bring about the following business objectives: • Save time and manpower creating agendas and minutes for the following meeting types: 1. City Council Regular Meetings to be delivered by SIRE 2. Other meetings types can be created internally by City staff using the Admin features of the product • Improve accessibility of agenda documents both internally by City staff and externally to the public by providing access pre and post meeting 24/7 via the City web sites. • Creating agenda document workflows to adhere to records management policies and procedures. SIRE will specifically provide the following functionality and services: Software Delivery • Install SIRE Agenda Plus • Install SIRE Minutes Plus • Install SIRE Video Plus • Install SIRE Pub for Intranet or Internet Access Services • Setup/Configuration of Agenda Plus, Minutes Plus, and Video Plus • Setup/Configuration of Intranet or Internet Access to all related Agenda/Minutes Documents and Videos • Complete Conversion/Importing of historical Videos into SIRE • Design and build integration procedures to store agenda and minutes documents in the City's Laserfische system • Design and build and integration facility link SIRE agenda items' addresses to the City's existing ESRI system • Project Management Services provided through Project Acceptance Training • SIRE Agenda Plus General System Administrator Training • SIRE Agenda Plus Core Functionality Training • SIRE Minutes Plus Training • SIRE Video Plus training Page 3 of 11 2. Scope Statement A Phased Approach will be taken to logically implement the SIRE suite of products: • Phase 1 — City Council Core Agenda Plus, Minutes Plus, and Posting the Agenda to the Web, Convert legacy videos and import them into SIRE • Phase II — Design and build integration with Laserfische and ESRI systems, Build form and workflow to support agenda approval process A. •roximate Dates Phase I — Core Agenda Plus, Minutes Plus, and Responsible Approximate Date Items to be Video Plus System Configuration in Clerk Area Party Completed Project Kick-Off SIRE/Aspen Contract Signing + 3 weeks • Agree to project roll out process, project Project Team plan, communication plan, define roles and responsibilities. • Discuss technical needs/requirements- System support procedures, Access for configuration, Upcoming needs within the project. • Discovery on Current Agenda/Minutes Process • Discuss Web Publishing • Discovery on Current Agenda Approval Process. • Discovery of AIM-Legacy Data Conversion Install and Configure SIRE software SIRE Contract Signing + 3 weeks _ Design Agenda/Minutes Meeting Types-Create SIRE Kick-off+ 2 weeks Design Specification Coordinate Review of Agenda Design Document SIRE/Aspen Kick-off+ 2 weeks Build/Configure Meeting Types based upon Design SIRE Kick-off+ 4 weeks Document • During this time coordinate times to review what is being built for each meeting. o Meeting Compiles (Agenda and Minutes) o Packet Configuration o Printing Packet Process o Web Site Configuration • SIRE Internal Testing Define what videos and associated data needs to SIRE/Aspen Kick-off+ 5 weeks be converted Define video conversion procedures SIRE/Aspen Kick-off+ 5 weeks Provide Sample Conversion for Validation SIRE/Aspen Kick-off+6 weeks Perform Video Conversion SIRE/Aspen Kick-off+ 7 weeks Return Visit to Aspen SIRE/Aspen Kick-off+ 6 weeks • System Administration Training • Agenda Plus Administration Training • Agenda Plus Clerk's Department Training • Minutes Plus Clerk's Department Training • Walk through Process from start to finish to Page 4 of 11 produce agenda Parallel New Agenda Process with Current Process Aspen Kick-off+ 6 weeks through (recommended 2-3 cycles prior to Go Live) Kick-off+ 9 weeks • Create Agenda w/attached supporting materials • Create and Print Packet • Publish Agenda • Take Minutes During Meeting • Produce Minutes Document • Publish Minutes Document Go Live— Return Visit to As.en for direct sus sort SIRE/As sen Kick-off+9 weeks Phase II - Application Integration, Agenda Form Responsible Approximate Date Items to be and Workflow Party Completed Define Integration Requirements for Laserfische SIRE/Aspen Kick-off+ 11 weeks System. Identify Document Types and Transfer Procedures Define Integration Requirements Between SIRE SIRE/Aspen Go Live + 11 weeks Agenda Plus and ESRI System Identify and Document Agenda Item Approval SIRE/Aspen Go Live + 11 weeks Workflow and Associated Submission Form Develop Integration Code Between SIRE and SIRE/Aspen Go Live + 12 weeks through Go Laserfische Live + 14 weeks Develop Integration Code Between SIRE and ESRI SIRE/Aspen Go Live + 12 weeks through Go Live + 14 weeks Build Agenda Item Submission Form and Approval SIRE Go Live + 12 weeks through Go Workflow Live+ 14 weeks Forms and Workflow Administration Training SIRE/Aspen Go Live + 13 weeks User Acce stance Testins As.en Go Live + 15 weeks Project Sign Off SIRE/Aspen Go Live + 16 weeks 3. Future Work (Identified but not in scope for these project phases.) 1. TBD throughout Project and at Project Kick-off 4. Deliverables 1. Project Plan 2. Standard Training Documentation available on SIRE Technologies Web Site 3. Project Implementation Working Documents 1. WBS 2. Change Order Document 3. Action / Issue Log 4. Project Meeting Agendas / Recaps 5. Trip Reports Pre and Post Visits • On-site daily schedules 5. Project Assumptions 1. City of Aspen has a project manager and project champion to help coordinate required tasks and provide resources. Page 5 of 11 2. City of Aspen has prepared all stakeholders (those who are positively or negatively affected by this project) in all departments to support this effort. 3. Project management staff from SIRE Technologies and City of Aspen will work directly with each other and make a good faith effort to assure that City of Aspen needs are met. 4. Once this project begins, changes in scope may be necessary. The project managers from SIRE Technologies and City of Aspen will maintain adequate control over project scope and use the adopted Change Order document to determine and notify all of project impacts. 5. Resources from the City of Aspen departments will be available to help SIRE Technologies define and formulate agendas. 6. City of Aspen has prepared the schedules of all stakeholders and the user community to devote the necessary time and energy into appropriate training on the SIRE products. 7. The City of Aspen IT department will provide SIRE Technologies remote access including the ability for using GoToMeeting. 8. The City of Aspen IT department takes responsibility for supporting internal data processing needs such as network administration, server backups, scheduling back-ups, virus protection, server readiness and security policies and procedures. 6. Project Constraints 1. Absences by team members, whether planned or unplanned, whether from the City of Aspen team or SIRE Technologies team, may impact the project timing. 2. Timely installation of required hardware may impact project schedules. 7. Project Organization 1. Project Roles and Responsibilities 1. Project Sponsor The person or group providing financial resources, in cash or in kind, for the project. 2. Account Executive: Individuals responsible for the project scope 3. Technical Support: Individuals with expertise about the system being implemented. Page 6 of 11 4. Project Manager. The person managing the project and its successful, on- time completion. 5. Stakeholders: Individuals and organizations actively involved in the project, or whose interests may be affected as a result of project execution or project completion. 6. Subject Matter Experts: Individuals with expertise about systems or processes required to complete the project and/or make it successful. 7. SIRE Administrator. Individual responsible for becoming expert in SIRE's use, and to administer the SIRE product suite and act as first-level support for end users. 8. Project Directory Name Title Department Project Role Email Phone 9. Communication Plan 1. Day to Day Communications on non-urgent items that affect the project should be by email, with all team members on the distribution list, including the SIRE Technologies team members. If an item is identified as an issue, it will be entered on the Issue Log for the project. All electronic documents relating to the project will be stored on the Project's share on the SIRE Technologies Web Center (A login and password will be provided to the City of Aspen to be shared with the project team.) Note: Email is NOT to be used for messages of any urgency. Critical or time- sensitive items must be communicated immediately by telephone, followed by a summation email to keep everyone apprised. Emergency calls should be directed to Project Manager or designee. 2. Project Status Reports serve two functions. They provide feedback to the project organization and they serve as a historical record of the project progress, decisions, success, achievements, and shortcomings. Background information that is obvious to the project team at the time of the report may not be available to subsequent readers; therefore inclusion of all related information will be helpful for documentation. Project Status Reports are accomplished through a bottom-up approach. Team members will report to their Project Manager on a weekly basis in the Project Team Meetings. Information gathered during the Project Team Meetings will be incorporated into a Project Status Report that will be distributed to all Team Page 7 of 11 members and to the Executive Committee 3. Communications Grid Communication Project Mgr Project Team Delivery Day to Day X X D, E - Status Meeting Minutes X D*, AN, T, E Status Report X W, E Change Assessment X AN, P Urgent/Emergency X X D, T *When SIRE Technologies is onsite. Delivery Key: Frequency (D) daily; (W)weekly; (M) monthly; (AN) as needed Delivery Method (E) email, (M) memo, (P) PM tool output, (C) conference, (T)teleconference 10. Risk And Asset Management Risk is an uncertain event or condition that, if it occurs, has a positive or negative effect on a project's objectives. Risk management endeavors to optimize the likelihood of meeting project objectives and maximize the opportunities representing "positive" risk. Risk management also endeavors to minimize the occurrence of threatening conditions and events, and the impacts to project objectives that result. Identification of risks up front reduces the amount of surprises, crisis management, disappointment, workarounds, re-work and waste. Project risks will be categorized as follows: 1. Scope, Technical or Quality Risks: Project changes or additions, required customizations, technical design issues 2. Management Risks: Lack of proper management, resource issues, sponsorship, 3. Organizational Risks: Slow decision-making, interruption of funding, changes in corporate goals or strategy, labor issues, end-user buy-in 4. External risks: Delivery of equipment, environment issues, construction Page 8 of 11 5. Training risks: High level of coordination and planning will be required to make sure staffs are trained. Proper training in all aspects of the application is a must. When project risks are identified, project management will discuss ways to mitigate the risk, agree on a contingency plan and decide the trigger points for action. 11. Issues / Change Management An issue is a concern that may impede the progress of the project if not resolved. Issues require a decision and a resolution. The resolution may require concurrence from many people. Changes to this project's scope are driven by issue resolution. As stakeholders identify an issue, the project managers will track and agree on severity and impact to the project as show-stopper, work-around, or nice-to-have. To insure the health of the project, all issues and changes must be documented to their conclusion. 1. Show-stopper. This type of issue is mission critical to the City and the user community cannot possibly do their work unless the project team resolves it. 2. Work-around: This issue is a feature or function of the SIRE product 'out of the box' that doesn't fit the model of how the user visualizes the product should be. It can also be a malfunction of the product that needs to be addressed (a bug). Work can continue forward with adjustments on the part of the end user. 3. Nice-to-have: This issue is a special request for SIRE Technologies to provide the City. This issue helps drive new features and functions of the product. 4. The Change Process: a. City of Aspen project manager contacts SIRE Technologies project manager to discuss how the change will be handled. b. The project managers from SIRE Technologies and City of Aspen agree on how the change impacts the scope of work. They agree if the change can be incorporated as part of a release, handled as part of the original project scope or may require additional cost. c. SIRE Technologies and the City of Aspen project managers will then work together to establish a technical specification if they agree it is needed. d. SIRE Technologies project manager will work with their internal development group to understand the requirement. e. SIRE Technologies project manager will then report back to City of Aspen Project Manager of what the change requires for implementation. f. A change order form is used to communicate the required change. Page 9 of 11 Note: Any change in scope will require City of Aspen project sponsor and project manager approval with a formal signoff. Significant changes in scope will be subject to City of Aspen City's / SIRE's agreed change management process. Any modifications resulting in the delay of project completion or addition of resources (money, people, hardware, software, etc.) will be subject to formal agreement. 12. Payment Milestones Milestone Description Payment 1. Contract Signing 50% of Software 50% of Services 2. Software Delivery/Installation 50% of Software 3. Phase I -Agenda/Minutes Meeting Type 25 % of Services Installation, Conversion of Historical Videos, Configuration and Training 4. Phase II — Laserfische and ESRI 15% of Services integration, Agenda Form and Workflow 5. Project Acceptance 10% of Services 13. Technology Architectural Plan - Outline With a hosted system, the main SIRE system will reside on a server that SIRE will install and maintain in a secure co-location facility. Some components such as Minutes Plus client machines and the Video Plus encoder will reside at Aspen facilities, and will be maintained by Aspen IT resources. Aspen IT will maintain an active internet connection to ensure access to the SIRE server at the co-location facility. 14.Project Decisions During the course of the project when technical, procedural, operational decisions are made they will be documented in the weekly status report. The Weekly Status Meeting Recap is a document maintained by the project team. 15.Project Acceptance and Signoff Before the project can be considered complete the following conditions must be met: 1. All outstanding issues have been documented and reviewed by the project team. 2. All decisions and resolutions have been documented and reviewed by the project team. 3. Complete a post project assessment meeting (Lessons Learned) attended by all of the project team. 4. Final Acceptance by City of Aspen as outlined in this project plan. Page 10 of 11 5. Complete a Support Handoff Document with all vital information for ongoing support. As well as an introduction to Operations with expectations laid out of avenues the city can use to get support, when support is available and response times for support. Page 11 of 11 V ri MEMORANDUM TO: Mayor and City Council FROM: Mike McDill, Deputy Utility Director THRU: Dave Hornbacher,Director of Utilities & Environmental Initiatives DATE OF MEMO: March 12,2012 MEETING DATE: March 26, 2012 RE: Professional Services Contract for the Water Utility Asset Management Plan & Infrastructure Analysis REQUEST OF COUNCIL: Over the past few weeks the Water Utility has been soliciting and evaluating proposals to update our 2006 Water Utility Asset Management Plan. Having selected a preferred proposal, City Council is being asked to approve and award the attached contract for these services. PREVIOUS COUNCIL ACTION: City Council approved this project in the 2012 Budget in the Water Utility Capital Fund. BACKGROUND: The Water Utility programs funding to cover Capital needs over a ten year period. As we approach the end of each period, we start on the next look ahead. This update is needed now because the last one was done on the up side of the 2008 economic bubble. Since then all business economies have changed drastically, including utility enterprises. It is very appropriate that we take a new look at our long range capital improvement program from the perspective of this new economic reality. DISCUSSION: Having selected McLaughlin Water Engineers to perform this Asset Management Plan & Infrastructure Analysis, we negotiated a few small adjustments to their proposal. Their proposal, with the revisions, is attached and referenced in the contract for professional services. One of the exciting aspects of this proposal is that the consultant will be able to develop and deliver a computer model of our water system for our future use within the established budget! FINANCIALBUDGET IMPACTS: The "not-to-exceed" price of $83,500 in this contract is within the $85,000 allocated in the 2012 Water Utility Capital Fund Budget. It will be a valuable tool in the development of capital budgets for the next eight to ten years. Page 1 of 2 ENVIRONMENTAL IMPACTS: This study will evaluate our water system in enough detail to determine if there are upgrades we might program to improve the operating efficiency, such as possibly replacing older pumps with more efficient models or increasing storage so that pump sizes could be reduced. All recommendations for long term capital improvements will be individually evaluated as to their environmental impacts or benefits. RECOMMENDED ACTION: Staff recommends Council's approval and award this $83,500 contract for professional service to allow for the completion of the 2012 Water Utility Asset Management Plan& Infrastructure Analysis. ALTERNATIVES: The alternatives to awarding this contract are: • Reconsider the other firms who submitted proposals for this work. This will entail additional staff evaluation time and a reasonable justification to McLaughlin as to why we did not contract with them. • Re-advertise and solicit a new set of proposals for this work. This will entail additional advertising cost and more staff evaluation time. • Defer this work to a future year and continue to appropriate funds and program system improvements based on the 2006 Asset Management Plan PROPOSED MOTION: "I move to approve RiffwLiu" # 24 , authorizing the City Manager to execute a professional services contract with McLaughlin Water Engineers in an amount not to exceed $83,500 for the Water Utility Asset Management Plan& IInnfrastructure Analysis." CITY MANAGER COMMENTS: g.zc.a aa,n•z„St .1,r rwsR a\D TL C.iA ATTACHMENTS: Attachments: A — McLaughlin Water Engineers Asset Management Plan & Infrastructure Analysis Revised Proposal B—Contract for Professional Services Page 2 of 2 RESOLUTION # �o (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND MCLAUGHIN WATER ENGINEERS LTD AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for Professional Services for the Water Utility Asset Management Plan and Infrastructure Analysis, between the City of Aspen and McLaughlin Water Engineers Ltd., a true and accurate copy of which is attached hereto as Exhibit NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for Professional Services for the Water Utility Asset Management Plan and Infrastructure Analysis, between the City of Aspen and McLaughlin Water Engineers Ltd., a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 26th day of March 2012. 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, March 26, 2012. Kathryn S. Koch, City Clerk I nue tam CITY OF ASPEN STANDARD FORM OF AGREEMENT-2009 PROFESSIONAL SERVICES City of Aspen Project No.: 2012-016. AGREEMENT made as of 26th day of March, in the year 2012. BETWEEN the City: Contract Amount: The City of Aspen c/o Water Department 130 South Galena Street Total: $83,500.00 Aspen,Colorado 81611 Phone: (970)920-5055 If this Agreement requires the City to pay And the Professional: an amount of money in excess of $25,000.00 it shall not be deemed valid McLaughlin Water Engineers, Ltd. until it has been approved by the City g Council of the City of Aspen. do James McLaughlin 2300 15th Street City Council Approval: Denver, CO 80202 Date: March 26,2012 Phone: (303) 964-3333 Resolution No.: For the Following Project: Professional Services Contract for the Water Utility Asset Management Plan&Infrastructure Analysis Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit B: Hourly Fee Schedule. Agreement Professional Services Page 0 The City and Professional agree as set forth below. 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence Work 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 November 30, 2012. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds,and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule,when approved by the City, shall not, except for reasonable cause,be exceeded by the Professional. 3. Payment. In consideration of the work performed,City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed 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. 4. Non-Assignability. 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. 5. 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. 6. 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 Agreement Professional Services Page 1 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. 7. Independent Contractor Status. It is expressly acknowledged and understood by the patties 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. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability,claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act,omission,or other fault of the City, its officers,or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act,omission,or other fault of the City,its officers,or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain,at its own expense,a policy or policies of 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 Agreement Professional Services Page 2 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, 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. Agreement Professional Services Page 3 (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 seq.,C.R.S., as from time to time amended, or otherwise available to City,its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk Management Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written Agreement Professional Services Page 4 representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, 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 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 Agreement Professional Services Page 5 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 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. Agreement Professional Services Page 6 (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 (I) 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 a 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. 16. 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 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, Agreement Professional Services Page 7 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: I. 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. 17. 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. 18. General Terns. (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 and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. Agreement Professional Services Page 8 (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. IN WITNESS WHEREOF, the parties hereto have executed,or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. CITY OF ASPEN,COLORADO: PROFESSIONAL: � [[Signature] � [Signature] fACII"^ By: By: ffvna/d z. /Tough/:a [Name] [Name] Title: Title: Pnn4a y!/ Date: Date: 3 - /5- /2 Approved as to form: City Attorney's Office Agreement Professional Services Page 9 • Exhibit A Professional Services Agreement Mc-Laughlin Water ENGINEERS. LTD. EXHIBIT A PROPOSAL TO PROVIDE ENGINEERING SERVICES FOR THE CITY OF ASPEN Based on the City's Request for Proposal, dated February 23, 2012 for a Water Utility Asset Management Plan and Infrastructure Analysis GENERAL The work scope is to be in accordance with the City's Request for Proposal, pages 3 through 6, and as specifically modified herein. In addition, McLaughlin Water Engineers, Ltd. agrees to comply with the provisions listed in the City of Aspen's Standard Form of Agreement. SCOPE OF SERVICES Summaries of work scope, segregated into principal tasks,follow. The work proposed is intended to be comprehensive—including all effort needed to result in the completed product—even though not specifically listed. Task 1. Organizational—Work Sessions Identify, obtain, review and excerpt all existing reports, applicable ordinances/policies and other documents relevant to the Aspen water system, including as-built drawings. Participate in an initial work session with staff. Discuss any special concerns and problems. Obtain operational historical knowledge of condition and maintenance requirements— particularly for underground, inaccessible, infrastructure. Typically we would assume probably one or two more group type, in-progress work sessions with staff(in addition to multiple individual contacts). Task 2. Develop Demand Design Criteria Review Comprehensive Plan, or similar planning documents. Work with planning/management staff. Obtain consensus as to planned service area boundaries. Obtain development projections(location and type). Analyze water use records to project unit demands. 1 1\Marketkp12012 ProposaIswpemExtIex&doe Translate development projections to water demand projections. Also, establish probable fire protection flow requirements for the multiple sub-areas. Customer demand projections and design fire flow criteria will also be developed for present service area (with fill in). Obtain Design Criteria concensus. Task 3. Evaluate Existing Infrastructure An inventory, by functional category, would be generated for all water infrastructure facilities. Each significant item of existing facilities would be evaluated to provide: a. Capacity—as relates to system requirements. b. Suitability—how well the item fits in with the overall system. c. Condition—facilities would be evaluated to the extent possible, as to condition/quality. d. Replacement/Maintenance—upgrade requirements, with schedule. The evaluations would incorporate interviews with staff, our present knowledge of the City's facilities and our experience with multiple similar items. This information would be summarized and catalogued for convenient use in the Plan. Task 4. Water Rights Obtain information and analyses from Kerry Sundeen and Cynthia Covell. Refer to the proposal letter from Kerry Sundeen in Appendix Al. Present this information in a format and scope relevant to the Asset Management Plan—as well as the recommended Master Plan. Coordinate the developed design criteria with their inputs to formulate a water rights strategy which would support the City's projected needs. Task 5. Distribution Master Plan A system computer based model is almost a must to confidently prepare a system Master Plan. We started this model several years ago— but the work was deferred because of lack of as-built information; the City has since completed as-built drawings of the distribution system. Under this task, IDModeling will build a complete distribution model, incorporating all piping, PRVs, storage tanks and pumping stations. The proposed software would be Water Gems or EPANET 2.0, at the City's option. Refer to the IDModeling Proposal in Appendix A2 for additional details. 2 4 To meet time requirements, and limit the budget for this assignment,the model runs would be limited to loading with only generalized demands and fire flows. We have prepared many multi zone Master Plans and can furnish a good plan without comprehensive runs. The model would be capable of running all pressure zones simultaneously. Service would include a staff familiarization session. Task 6. Capital Improvements Program An improvement program involving all planned projects to be considered as capital financed would be formulated. This would consist of: 4 Capitalized Replacements. a Recommended or Required Upgrade Improvements. a Expansion or Extension Projects—to be financed by the City for projected development. The program would include, and be broken down as to function, e.g.: tll Water Rights a Raw Water Supply ie Raw Water Storage a Water Treatment a Hydropower i Water Distribution As stipulated, items projected to be needed for the next 10 years(to 2023)would be included. The preceding work, particularly the Evaluation of Existing Infrastructure, the Design Criteria and the Master Plan would be used to prepare the CIP (Capital Improvement Program). Preliminary cost/budget estimates will be prepared for all components of the CIP thought desirable to be constructed during the projected 10 year period. Task 7. 0& M Program The facilities' evaluation research would be supplemented to obtain operational related information. Using this, and our extensive experience with similar municipal utilities, a set of suggested operational modifications would be prepared. If acceptable to the City, it is probable that this scope should be furnished as a separate document(and not as part of more long-lasting records such as an AMP or MP). 3 r Task 8. Reports Information, Analyses, and Recommendations would be organized and edited so as to result in logical, comprehensive, documents. This Proposal contemplates three final deliverables(which can readily be reorganized if desired by the City): v Asset Management Plan d Master Plan with Infrastructure Evaluation Notes: The Water Rights scope would be included unless it is later determined to involve confidential analyses. It is acknowledged that any proposed treated water pipe sizings for the distribution system will be approximate, and may require optimizing, based on later model runs. ▪ 0 & M Program—Conclusions and Recommendations Task 9. Meetings Work sessions with staff and others needed to develop the Reports are included in the relevant Tasks. This Task includes the Council Meeting and Public Meeting itemized in the RFP. Our work would include preparation of visuals and tasks as needed to enhance and illustrate the presentations—as well as attendance by appropriate team members. Information to be Furnished by the City of Aspen Base information to be furnished by the City includes: a As-built drawings of all City water infrastructure (particularly underground facilities). el Available water usage records—both customer and production. a Available water quality data and CDPHE reviews/complaints. at Assistance and cooperation with regard to obtaining historic water system operation and maintenance information. d Any legal consultation/information needed to complete water rights aspects of the report. a Projections of future development/service area boundaries. 4 METHOD OF PAYMENT Work for this assignment will be done on an hourly rate plus actual expense basis(except for the model). The following MWE Rate Schedule would apply for MWE employees. Subconsultant(Grand River Consultants)time would be billed at the hourly rates, without markup, given in their letter proposal included as an Appendix. It is assumed that any legal water rights consultation needed would be provided by Cynthia Covell, with her time being billed directly to the City. Preparation of the distribution system model is to be subcontracted to IDModeling, Inc., on a lump sum cost basis. The work, as described, will be completed at a not to exceed cost of$83.500. The Work Plan, by Task, which includes cost budgets, is attached. Submitted by. McLaughlin a Water Engineer, Ltd. // t et dolear R. JE(mes McLaughlin, P.E. Ronald C. , P.E. & L.S. Attachments: MWE Rate Schedule Appendix-1 —Grand River Subconsultant Proposal Appendix-2— IDModeling Subconsultant Proposal Work Plan/Budgets 5 § 4 \ 2 ! _ m / \ \ II• % 9 t § \ r ea Ut — ] f ` \ f? @e | \ \ � \ � U \ ©� \ r'''' « ' . ) ) —' . $ ) �f ea § K a � � \ ii — Iƒ ii 7k B ! { �$ ! ( £ A 3 ° § ` s / \ 0 , a Si 2 to O ft Exhibit B Professional Services Agreement City of Aspen - Water Utility Asset Management Plan and Infrastructure Analysis Work Plan-Budgets (Task Leader Underlined) Person Estimated Hours Hourly Rate Estimated Billing Task 1-Organizational Work Session Ron McLaughlin 12 $150 $1,800 Jim McLaughlin 8 $132 $1,056 Dean Derosier 10 $132 $1,320 Terry Kenyon 8 $132 $1,056 Diana Ramser 6 $47 $282 Expenses $800 Subtotal $6,314 Task 2- Develop Demand Criteria Ron McLaughlin 10 $150 $1,500 Jim McLaughlin 6 $132 $792 Melanie Asquith 20 $104 $2,080 Terry Kenyon 6 $132 $792 Diana Ramser 6 $47 $282 Expenses $500 Subtotal $5,946 Task 3-Evaluate Existing Infrastructure Ron McLaughlin 8 $150 $1,200 Jim McLaughlin 24 $132 $3,168 Dean Derosier 12 $132 $1,584 Diana Ramser 10 $47 $470 Expenses $800 Subtotal $7,222 Task 4-Water Rights KerrvSundeen 20 $167 $3,340 Clerical 4 $52 $208 Ron McLaughlin 4 $150 $600 Subtotal $4,148 Task 5-Distribution Model/Plan Ron McLaughlin 20 $150 $3,000 Melanie Asquith 16 $104 $1,664 Terry Kenyon 8 $132 $1,056 Alan Johnson 20 $91 $1,820 IDModeling $10,500 Expenses $500 Subtotal $18,540 Task 6-Capital Improvement Program Ron McLaughlin 12 $150 $1,800 Jim McLaughlin 36 $132 $4,752 Dean Derosier 12 $132 $1,584 Terry Kenyon 12 $132 $1,584 Diana Ramser 8 $47 $376 Expenses $800 Subtotal $10,896 Task 7-0&M Program Ron McLaughlin 8 $150 $1,200 Jim McLaughlin 30 $132 $3,960 Dean Derosier 10 $132 $1,320 Terry Kenyon 16 $132 $2,112 Diana Ramser 12 $47 $564 Expenses $500 Subtotal $9,656 Task 8-Reports(AMP) Ron McLaughlin 16 $150 $2,400 Jim McLaughlin 8 $132 $1,056 Melanie Asquith 20 $104 $2,080 Terry Kenyon 24 $132 $3,168 Dean Derosier 8 $132 $1,056 Diana Ramser 12 $47 $564 Alan Johnson 16 $91 $1,456 Expenses $1,000 Subtotal $12,780 Task 9-Meetings Ron McLaughlin 6 $150 $900 (Travel) 8 $0 $0 Jim McLaughlin 6 $132 $792 (Travel) 8 $0 $0 Terry Kenyon 6 $132 $792 (Travel) 8 $0 $0 Dean Derosier 6 $132 $792 Alan Johnson 4 $91 $364 Expenses $500 Subtotal $4,140 Total Estimated Budget $79,642 5%Allowance for Contingency $3,982 $83,624 Not to Exceed Budget $83,500 r M Laughlin Water E N GI NEERS LTD. Schedule of Hourly Rates Effective February 1,2012 thru January 91,2013 2012 Personnel Mininwm QuaMficebns Senior Principal MS in Engineering,25+years relevant experience,Professional, $150 Engineer Registration,reoogned expertise Principal Engineer BS in Engineering plus 20+yeas relevant experience,or MS in $132 Engineering plus 15+years relevant experience,Professional Registration Senior Project Engineer BS in Engineering plus 15+years relevant experience,or MS in $115 Engineering plus 13+years relevant experience,Professional Registration Project Engineer BS in Engineering plus 8+years relevant experience,or MS in $104 Engineering plus 6+years relevant experience,Professional Registration Professional Engineer BS in Engineering plus 4+years relevant experience,Professional $92 Registration Engineer In Training BS in Engineering plus passed FE examination $70 Resident Engineer/ BS in Engineering plus 4+years relevant experience; or 10 years $82 Senior Resident relevant experience Resident Inspector BS degree or 4+years relevant experience in heavy construction $72 Survey Crew Two person survey crew complete with Total station or other equipment $135 Hydrologist $105 Senior Designer wi0n 10 years relevant experience $91 CAD Station and software Engineering drafter with 4 yews relevant experience $76 CAD Station and software Engineer Technidan $50 Secretarial w/word $47 processor Special rates wN be negotiated for personnel w1h qualifications not described in the oboe schedule, or for personnel to be and not meeting the above minimum qualifications. Monthly rates w I be furnished for full-tine Residers. Billable Expenses Automobile IRS Rate($0.555hr8e) 4 wheel drive vehicle IRS Rate plus 8 cents/mile Lodging&subsistence Actual cost Special communications/printing Actual cost Interest at 1%per month will be charged on amounts due over 80 days after invoice date. This Schedule of Rates is considered by McLaughlin Water Engineers,Ltd.to be'CONFIDENTIAL'infomialion. Release of any lnfamafion contained herein to third parties is prohibited without express within consent of MWE MEMORANDUM VII as TO: City of Aspen Mayor and City Council THRU: Chris Bendon, Community Development Director FROM: Jessica Garrow, Long Range Planner -',111(_1 RE: First Reading of Ordinance 10, Series 2012, Eagles Club (700 E. Sleeker) GMQS for Essential Public Facility Review MEETING DATE: March 26, 2012 (Public Hearing, May 12, 2012) APPLICANT/OWNER: STAFF RECOMMENDATION: Fraternal Order of the Eagles, Staff recommends City Council require mitigation for Aspen, CO. the catering use. REPRESENTATIVE: STAFF RECOMMENDATION: Sunny Vann, Vann Associates APCHA recommended City Council not require mitigation. LOCATION: Lot 3 of Creektree Subdivision, City P&Z RECOMMENDATION: of Aspen, CO, commonly known as P&Z recommended City Council not require 700 E Bleeker. mitigation. CURRENT ZONING& USE R-6 PUD, Medium Density SUMMARY: The applicant requests Conditional Use Residential. The Eagles Club Review to memorialize 1,881 sq ft of basement space qualifies as "an arts, civic and that has been rented to and used by a commercial cultural use,'" which is permitted as catering company for 14 years. City Council is being a conditional use in the R-6 zone asked to waive affordable housing mitigation district. associated with the catering use as part of the GMQS re iew for an Essential Pdblic Facility. PROPOSED LAND USE: The applicant requests a conditional use approval to memorialize space which has been used by a commercial catering company for 14 years. Section 26.104.100 of the Aspen Municipal Code defines arts,cultural,and civic uses as"the use of land or buildings by non-profit,arts,cultural,religious, or public organizations such as a church,fraternal club,performing arts theatre...." Page - 1 - of4 LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approvals: • Growth Management Review for an Essential Public Facility pursuant to Land Use Code Section 26.470.090.4 (City Council is the final review authority following a recommendation from the Planning& Zoning Commission). BACKGROUND: Since 1901, the Fraternal Order of the Eagles has served both members and the general public through fundraisers and support for area non-profits. The primary goal of the Eagles is to be charitable to the local community. They have supported many community causes, including Spring Board, The Right Door, Roaring Fork Veterans' History Project, and The Shining Stars. The Eagles received a conditional use approval to operate in their present location in 1977. PROJECT SUMMARY: The Fraternal Order of the Eagles proposes to memorialize a commercial use in their basement. There is a commercial grade kitchen, which for the past 14 years has been rented to two different catering companies. The space is approximately 1,881 sq ft. The Growth Management Quota System is triggered because of the commercial nature of the space, which is different than the sole use of the space for a fraternal club as was approved in 1977. The Eagles requested a Conditional Use review to memorialize the use of the basement for a commercial kitchen rented to a commercial catering operation. There are currently a number of businesses that operate out of or use the space, including Conundrum Catering, Gourmet Girl to Go, as well as a number of vendors at the summer farmer's market. The Planning and Zoning Commission reviewed the conditional use request, and approved the space to be used for commercial catering purposes, conditioned upon fulfilling any conditions imposed by City Council. They also included a condition requiring that no more than one (1) business rent the space at any one time. The P&Z and APCH determined that there are three (3) employees generated by the catering use, based on the fact that the catering operation has historically and currently has three (3) employees. The P&Z and APCHA recommended that City Council not require any affordable housing mitigation for the existing use because it has been in operation for fourteen (14) years. They did, however, recommend that any change in the nature of the current use by a single commercial catering operation or an increase in employees beyond three (3) trigger additional review for affordable housing. STAFF COMMENTS: GROWTH MANAGEMENT REVIEW: A recommendation from the Planning and Zoning Commission for the employee generation rate of an Essential Public Facility2 is required. City Council then determines the mitigation rate. The proposal is to memorialize 1,881 sq ft of space that has been used as by a commercial catering company for the past 14 years. Back Door Catering used the space for 2 years, and Conundrum Catering has used the space for the last 12 2 Pursuant to Section 26.104.100,Essential Public Facility is defined as"a facility which serves an essential public purpose, is available for use by,or benefit of,the general public and serves the needs of the community." Page - 2 - of6 years. Conundrum Catering has 3 employees. If the typical commercial generation rates were used to calculate the number of FTEs generated by this space, the mitigation requirement would be about 3 FTEs.3 Staff and P&Z recommend using the current number of employees (3) as the level of employee generation. No new affordable housing is proposed with this application — the applicant has requested that City Council waive any affordable housing mitigation requirements. The Growth Management review leads to a larger policy question: Should commercial operations be able to rent/use space designated in an Essential Public Facility and take advantage of the ability to provide lower mitigation than would be required for a similarly sized commercial space? Other similar Essential Public Facilities, such as churches, the Yellow Brick, and the Aspen Elks Lodge, allow individuals and non-profits to use and/or rent their spaces, but they do not lease their space to a commercial business in the way the Eagles has with the catering operation. Staff believes this is a policy question City Council should consider as they determine the mitigation level required. Staff cannot support the use of Essential Public Facilities by an unassociated commercial business. Similarly situated commercial businesses in town have been required to mitigate for their commercial space based on the land use code's commercial mitigation levels. Staff is concerned that approving a commercial use in an Essential Public Facility sets a precedent that creates an unequal playing field for local businesses. REFERRAL AGENCY COMMENTS: The APCHA Board reviewed the application at their regular meeting held February 1, 2012. Due to the nature of the business in that Conundrum Catering provides food to the Club members as well as their special events, and has done so in the last 14 years, the Board recommended approval of the applicant's request with no additional mitigation required, but that an employee audit shall be provided to APCHA with the current number of employees and that any other use of the commercial kitchen by another caterer be reviewed and approved by the Community Development Department. The Planning and Zoning Commission agreed with APCHA's conditions and included tem as part of their conditional use approval. In addition, P&Z found that the use generates three (3) FTEs. RECOMMENDATION: Staff believes that a commercial grade kitchen is an expected aspect of any fraternal club. It provides a place for the organization to prepare food for member events, as well as for events that further the charitable mission of the organization. However,staff cannot support the use of an essential public facility for a commercial operation. Staff therefore recommends against the request. If the P&Z is supportive of the applicant's request, staff recommends the use of the commercial space be limited to regular Eagles operations and commercial establishments producing or wholesaling prepared food items with no on-site consumption, such as a catering company. This 3 The space in question is 1,881 sq. ft. in size. If this were new commercial space,housing mitigation for 3.47 FTEs would be required (1,881sf/ 1,000sf= 1.881sf; 1.881sf*3.075 FTEs = 5.78 FTEs; 5.78 FTEs * 60% mitigation = 3.47 FTEs). Page - 3 - of 6 has been included in Section 1 of the Resolution. APCHA's comments have also been included in the Resolution. RECOMMENDED MOTION(ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE): "I move to approve Ordinance No.10, Series of 2012, approving with conditions a Growth Management Review for an Essential Public Facility for the Eagles Club, located at 700 E Bleeker." ATTACHMENTS: EXHIBIT A— GMQS Criteria EXHIBIT B— APCHA Board Recommendation EXHIBIT C- P&Z Resolution 4, Series of 2012 EXHIBIT D— Application Page - 4 - of6 ORDINANCE NO.1D (SERIES OF 2011) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS AGROWTH MANAGEMENT REVIEW FOR AN ESSENTIAL PUBLIC FACILITY FOR 700 BLEEKER ST, LOT 3 OF CREEKTREE SUBDIVISION, CITY OF ASPEN, CO, PITKIN COUNTY, COLORADO, COMMONLY KNOWN AS THE ASPEN EAGLESCLUB PARCEL NO. 2737-073-508-03 WHEREAS, the Community Development Department received an application from the Fraternal Order of the Eagles, requesting approval of a Conditional Use amendment to allow 1,881 sq ft of their basement to be used for a commercial catering business, and a recommendation to City Council for the approval of Growth Management allotments for an Essential Public Facility; and, WHEREAS,the Applicant, Fraternal Order of the Eagles qualifies as a Conditional Use, pursuant to Section 26.104.100 "arts, cultural, and civic use", in the R-6 Medium Residential Zone District; and, WHEREAS, the Applicant, Fraternal Order of the Eagles, serves an essential public purpose by serving the needs of the general public and Aspen community, and therefore is categorized as an Essential Public Facility, pursuant to Section 26.104.100; and, WHEREAS,the subject property is zoned R-6 Medium Residential with a PUD Overlay; and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended denial, of the proposed land use requests; and, WHEREAS, during a duly noticed public hearing on February 7, 2012, the Planning and Zoning Commission approved Resolution No.4, Series of 2012, by a Four to One (4 -1) vote, approving a conditional use review for a commercial catering operation in the basement of 700 E Bleeker, and recommending city Council approve an Essential Pubic Facilities Growth Management Review; and, WHEREAS, pursuant to Section 26.470, the City Council may approve an Essential Public Facility Growth Management Review, during a duly noticed public hearing after considering a recommendation from the Planning and Zoning Commission made at a duly noticed public hearing, comments from the general public, a recommendation from the Community Development Director, and recommendations from relevant referral agencies; and, Ordinance , Series 2012 Page 1 of 3 WHEREAS, during a duly noticed public hearing on May _, 2012, the City Council approved Ordinance No. , Series of 2010, by a to ( — ) vote, approving an an Essential Public Facility Growth Management Review; and, WHEREAS,the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Planning and Zoning Commission, the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS,the City Council finds that the development proposal meets or exceeds all 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 AS FOLLOWS: Section 1: Approvals Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City of Aspen City Council approves an Essential Public Facility Growth Management Review for the basement of the Eagles Club, located at 700 E Bleeker. The basement space measures approximately 1,881 sq. ft. and may be used by for regular operations of the Eagles Club, as well as by a commercial catering operation. Section 2: Affordable Housing Mitigation Affordable housing mitigation is hereby waived for the existing commercial catering use, comprised of three (3) FTEs. Any change in the nature of the current use by a single commercial catering operation or an increase in employees beyond three (3) shall trigger additional review, pursuant to the Aspen Land Use Code. Section 3: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 4: 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. Ordinance_, Series 2012 Page 2 of 3 Section 5: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 6: A public hearing on this ordinance shall be held on the 23 day of tit, t 2012, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City uncil Chambers, Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 26th day of March, 2012. Attest: Kathryn S.Koch,City Clerk Michael C. Ireland,Mayor FINALLY, adopted,passed and approved this_day of ,2012. Attest: Kathryn S. Koch,City Clerk Michael C. Ireland,Mayor Approved as to form: James R True,City Attorney Ordinance , Series 2012 Page 3 of 3 Exhibit A Sec. 26.470 Growth Management Quota System. (Review Criteria) Sec. 26.470.090.City Council applications. The following types of development shall be approved, approved with conditions or denied by the City Council, pursuant to Section 26.470.110, Procedures for review, and the criteria for each type of development described below. Except as noted, all growth management applications shall comply with the general requirements of Section 26.470.050. Except as noted, all City Council growth management approvals shall be deducted from the respective annual development allotments and development ceiling levels. 4. Essential public facilities. The development of an essential public facility, upon a recommendation from the Planning and Zoning Commission, shall be approved, approved with conditions or denied by the City Council based on the following criteria: a. The Community Development Director has determined the primary use and/or structure to be an essential public facility (see definition). Accessory uses may also be part of an essential public facility project. Staff Finding: Pursuant to Section 26.104.100, Essential Public Facility is defined as "a facility which serves an essential public purpose, is available for use by, or benefit of the general public and serves the needs of the community." Since 1901, the Fraternal Order of the Eagles has served both members and the general through fundraisers and support for area non-profits. The primary goal of the Eagles is to be charitable to the local community. They have supported many community causes, including Spring Board, The Right Door, Roaring Fork Veterans' History Project, and The Shining Stars. Staff finds that this criterion is met. b. Upon a recommendation from the Community Development Director, the City Council may assess, waive or partially waive affordable housing mitigation requirements as is deemed appropriate and warranted for the purpose of promoting civic uses and in consideration of broader community goals. The employee generation rates may be used as a guideline, but each operation shall be analyzed for its unique employee needs, pursuant to Section 26.470.100, Calculations. Staff Finding: The Commercial Kitchen that is the subject of this review is currently rented to Conundrum Catering. They have three (3) employees. The Eagles use the rent to help support their overall charitable mission. They have stated that they could survive without the rent from Conundrum Catering, but that would mean they have reduced resources to maintain their building and carry out their mission. The applicant has requested that any affordable housing mitigation be waived. The space in question is 1,881 sq. ft. in size. If this were new commercial space, housing mitigation for 3.47 FTEs would be required (1,881sf/ 1,000sf= 1.881sf; 1.881sf*3.075 FTEs = 5.78 FTEs; 5.78 FTEs * 60%mitigation= 3.47 FTEs). Page 1 of 4 Staff suggests using the current number of employees at Conundrum catering (3) be used as the generation rate. APCHA has reviewed the proposal and recommends approval of the applicant's request with no additional mitigation required, but that an employee audit shall be provided to APCHA with the current number of employees and that any other use of the commercial kitchen by another caterer be reviewed and approved by the Community Development Department. The Growth Management review leads to a larger policy question: Should commercial operations be able to rent/use space designated in an Essential Public Facility and take advantage of the ability to provide lower mitigation than would be required for a similarly sized commercial space? Other similar Essential Public Facilities, such as churches, the Yellow Brick, and the Aspen Elks Lodge, allow individuals and non-profits to use and/or rent their spaces, but they do not lease their space to a commercial business in the way the Eagles has with the catering operation. Staff believes this is a policy question City Council should consider as they determine the mitigation level required. Staff cannot support the proposal without affordable housing mitigation because of the policy implications for Essential Public Facilities. Sec. 26.470.050.General requirements. A. Purpose: The intent of growth management is to provide for orderly development and redevelopment of the City while providing mitigation from the impacts said development and redevelopment creates. Different types of development are categorized below, as well as the necessary review process and review standards for the proposed development. A proposal may fall into multiple categories and therefore have multiple processes and standards to adhere to and meet. B. General requirements: All development applications for growth management review shall comply with the following standards. The reviewing body shall approve, approve with conditions or deny an application for growth management review based on the following generally applicable criteria and the review criteria applicable to the specific type of development: 1. Sufficient growth management allotments are available to accommodate the proposed development, pursuant to Subsection 26.470.030.D. Applications for multi-year development allotment, pursuant to Paragraph 26.470.090.1 shall not be required to meet this standard. Staff Finding: There is no specified number of allotments for Essential Public Facilities. The Eagles is requesting 1,881 square feet of Essential Public Facility space for their commercial kitchen. Staff finds this criterion to be met. 2. The proposed development is consistent with the Aspen Area Community Plan. Staff Finding: The AACP does not address civic organizations. It does discuss the importance of maintaining places and opportunities for social interaction. The Eagles in Page 2 of 4 general provides these opportunities through its charitable mission and activities with area groups. The commercial use of the space does not relate well to the AACP. Staff finds this criterion to be met. 3. The development conforms to the requirements and limitations of the zone district. Staff Finding: The Eagles Club us part of the Creektree Subdivision and PUD, and is zoned R-6 PUD. The space is located within the existing building. The building conforms with the approvals and Arts, cultural, and civic uses are allowed as a conditional use. Approval for the conditional use is before P&Z for approval. Staff finds this criterion to be met. 4. The proposed development is consistent with the Conceptual Historic Preservation Commission approval, the Conceptual Commercial Design Review approval and the Conceptual Planned Unit Development approval, as applicable. Staff Finding: Staff finds this criterion to not be applicable. 5. Unless otherwise specified in this Chapter, sixty percent (60%) of the employees generated by the additional commercial or lodge development, according to Subsection 26.470.100.A, Employee generation rates, are mitigated through the provision of affordable housing. The employee generation mitigation plan shall be approved pursuant to Paragraph 26.470.070.4, Affordable housing, at a Category 4 rate as defined in the Aspen/Pitkin County Housing Authority Guidelines, as amended. An applicant may choose to provide mitigation units at a lower category designation. If an applicant chooses to use a Certificate of Affordable Housing Credit as mitigation, pursuant to Chapter 26.540, such Certificate shall be extinguished pursuant to Chapter 26.540.90 Criteria for Administrative Extinguishment of the Certificate. (Ord. No. 6 —2010, §2) Staff Finding: Staff finds this criterion to not be applicable, as the project is being reviewed as an Essential Public Facility. 6. Affordable housing net livable area, for which the finished floor level is at or above natural or finished grade, whichever is higher, shall be provided in an amount equal to at least thirty percent (30%) of the additional free-market residential net livable area, for which the finished floor level is at or above natural or finished grade, whichever is higher. Affordable housing shall be approved pursuant to Paragraph 26.470.070.4, Affordable housing, and be restricted to a Category 4 rate as defined in the Aspen/Pitkin County Housing Authority Guidelines, as amended. An applicant may choose to provide mitigation units at a lower category designation. Affordable housing units that are being provided absent a requirement ("voluntary units") may be deed-restricted at any level of affordability, including residential occupied. If an applicant chooses to use a Certificate of Affordable Housing Credit as mitigation, Page 3 of 4 pursuant to Chapter 26.540, such Certificate shall be extinguished pursuant to Chapter 26.540.90 Criteria for Administrative Extinguishment of the Certificate, utilizing the calculations in Section 26.470.100 Employee/Square Footage Conversion. (Ord. No. 6—2010, §2) Staff Finding: Staff finds this criterion to not be applicable, as the project is being reviewed as an Essential Public Facility. The Housing Board recommends no affordable housing mitigation be required for the existing use of the space. If a different use (besides catering) were in the location, housing mitigation might be required. 7. The project represents minimal additional demand on public infrastructure, or such additional demand is mitigated through improvement proposed as part of the project. Public infrastructure includes, but is not limited to, water supply, sewage treatment, energy and communication utilities, drainage control, fire and police protection, solid waste disposal, parking and road and transit services. (Ord. No. 14, 2007, §1) Staff Finding: The catering use has been located on the property for 14 years, with Conundrum Catering operating there for the past 12 years. The city has not received any official complaints regarding the catering use during that period. Staff believes the space can handle the use, as well as the on-going charitable activities conducted by the Eagles. However, staff has some concerns related to additional businesses operating out of the space. The catering use is unique in that the prep work is done on-site, but the events are held off-site. There have been other businesses that attract traffic and users to the site. Staff is concerned this could result in increased demand on public infrastructure. Staff finds this criterion to be met for the catering use and the general Eagles operations. Page 4 of 4 . Exhibit B, APCHA Referral Comments MEMORANDUM TO: Jessica Garrow, Community Development Department FROM: Cindy Christensen,APCHA Operations Manager THRU: Tom McCabe, APCHA Executive Director DATE: February 1, 2012 RE: Fraternal Order of Eagles Conditional Use Amendment ISSUE: The applicant is requesting approval to be determined as an "Essential Public Facility" which would permit the operation of the kitchen to be exempt from the City's growth management quota system(GMQS)competition and waiver of the affordable housing mitigation requirements. BACKGROUND: The Eagles Club ("Club") building contains a commercial grade kitchen in the basement, which is used to provide food service for Club members and various Club events. The last 14 years, the kitchen has been leased to two catering companies - Back Door Catering for the first two years and Conundrum Catering for the last 12 years. Conundrum Catering does have a City of Aspen business license and its use in the Club kitchen has been regularly inspected by the City's Environmental Health Department. The Community Development Department ("ComDev") determined that the leasing of the building's kitchen to caterers is inconsistent with the conditional use approval; therefore, the Club must either stop leasing its kitchen or apply for a conditional use amendment. ComDev further determined that growth management approval is also required if the kitchen is to continue to be leased for commercial purposes. The basement's net leasable area totals approximately 1,881 square feet; however, this square footage includes a mechanical room, storage area, along with the kitchen and associated preparation area as well. DISCUSSION: Conundrum Catering is a seasonal business which operates within the Club during the hours of 8:00 a.m. to 10:00 p.m. Approximately 75% to 80% of its business is conducted on the weekends. Its activities are essentially limited to eight months a year — four months in the summer and four months in the winter. Conundrum Catering also provides food serve for the Club members and its various special events. Conundrum Catering has three employees—company's owner, Kip Feight; its chef; and its catering manager. Contract labor(e.g., waiters, bartenders, etc.) utilized for catered events is obtained from the community's extensive pool of restaurant employees. No additional employees will be generated as a result of the requested conditional use approval. Fraternal Order of Eagles Conditional Use Amendment Page 1 Exhibit B, APCHA Referral Comments The primary goal of the Club is to be charitable to the local community. If a charitable group approaches the Club for an event, it is provided free of charge. Upon a recommendation by ComDev, City Council may assess, waive or partially waive affordable housing mitigation requirements. The Club is requesting that affordable housing mitigation not be required in connection with Conundrum Catering's leasing of its kitchen. The applicant believes that no reasonable ability exists to provide such mitigation within its building or to make a cash-in-lieu payment. If the mitigation requirement is not waived, the Club will have no other option but to cease the leasing of its kitchen for catering purposes. MITIGATION: An Essential Public Facility is defined as "a facility which serves an essential public purpose, is available for use or benefit of the general public, and serves the needs of the community." ComDev has deterred that the Club is eligible to be considered as such a facility. The City Council has the option of waiving affordable housing mitigation requirements for an Essential Public Facility, although the Code does not exempt an applicant from the mitigation requirement. The mitigation requirement would be as follows: 4.1 FTE's per 1,000 square feet with a 25%reduction for below grade space 1,881 - 1,000= 1.88 4.1 X 25%reduction= 3.1 1.88 X 3.1 = 5.83 FTE's X 60%= 3.5 required mitigation RECOMMENDATION: The APCHA Board reviewed the application at their regular meeting held February 1, 2012, and due to the nature of the business in that Conundrum Catering provides food to the Club members as well as their special events, and has done so in the last 14 years, Staff recommends approval of the applicant's request with no additional mitigation required, but that an employee audit shall be provided to APCHA with the current number of employees and that any other use of the commercial kitchen by another caterer be reviewed and approved by the Community Development Department. Fraternal Order of Eagles Conditional Use Amendment Page 2 Fxhbif �. RESOLUTION NO.4,SERIES OF 2012 A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION APPROVING WITH CONDITIONS AN AMENDMENT TO THE FRATERNAL ORDER OF THE EAGLES CONDITIONAL USE TO USE 1,881 SQ FT OF BASEMENT - SPACE FOR COMMERCIAL USE,AND RECOMMENDING CITY COUNCIL APPROVE WITH CONDITIONS GROWTH MANAGEMENT REVIEW FOR AN ESSENTIAL PUBLIC FACILITY FOR 700 BLEEKER ST, LOT 3 OF CREEKTREE SUBDIVISION,CITY OF ASPEN,CO, PITKIN COUNTY, COLORADO PARCEL NO.2737-073-508-03 WHEREAS, the Community Development Department received an application from the Fraternal Order of the Eagles, requesting approval of a Conditional Use amendment to allow 1,881 sq ft of their basement to be used for a commercial catering business, and a recommendation to City Council for the approval of Growth Management allotments for an Essential Public Facility; and, WHEREAS,the Applicant, Fraternal Order of the Eagles qualifies as a Conditional Use, pursuant to Section 26.104.100"arts,cultural, and civic use", in the R-6 Medium Residential Zone District; and, WHEREAS, the Applicant, Fraternal Order of the Eagles, serves an essential public purpose by serving the needs of the general public and Aspen community, and therefore is categorized as an Essential Public Facility,pursuant to Section 26.104.100; and, WHEREAS,the subject property is zoned R-6 Medium Residential with a PUD Overlay; and, WHEREAS,upon review of the application, and the applicable code standards,the Community Development Department recommended denial,of the proposed land use requests; and, WHEREAS, during a duly noticed public hearing on February 7, 2012, the Planning and Zoning Commission approved Resolution No.4,Series of 2012,by a Four to One(4-1)vote; and, WHEREAS,the Aspen Planning and Zoning Commission has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the development proposal meets all 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, • P&Z Resolution 4, Series of 2012 Page 1 of 3 WHEREAS,the Aspen Planning and Zoning Commission finds that this resolution furthers and is necessary for the promotion of public health,safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION AS FOLLOWS: Section 1: Dimensional Standards Pursuant to the procedures and standards set forth in Title 26 of the City of Aspen Municipal Code, the Alarming and Zoning Commission hereby approves with conditions the use of 1,881 sq. ft. of the basement of the Fraternal Order of the Eagles(also known as the Eagles Club)as commercial net leasable space. The space can be used for regular operations of the Eagles Club, as well as by a commercial catering operation. Section 2: Conditional Use Amendment A Conditional Use Amendment is approved to allow the basement of the Eagles Club, measuring approximately 1,881 sq ft, to be used as commercial net leasable space for a commercial catering company, conditioned upon fulfilling all conditions imposed by City Council in their Growth Management Review for an Essential Public Facility. The Eagles Club shall not permit the space to be leased to more than one(1)business at any one time. Section 3: Growth Management for Essential Public Facility The Planning and Zoning Commission has determined that the employee generation rate for the commercial use of the space is three (3) employees. The APCHA Board and the Planning and Zoning Commission recommend City Council waive any Affordable Housing mitigation associated with the existing catering operation. An employee audit shall be provided to APCHA with the current number of employees. Any change in the nature of the current use by a single commercial catering operation or an increase in employees beyond three (3) shall trigger additional review,pursuant to the Aspen Land Use Code. Section 4: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 5: This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 6: 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. P&Z Resolution 4, Series of 2012 Page 2 of 3 • APPROVED BY the Planning and Zoning Commission of the City of Aspen on this 7th day of February, 2012. APPROVED AS TO FORM: PLANNIN ZONING COMM! N: City Attorney LJ Erspamer,Chairman aerirrecit- ckie Lothian,Deputy City Clerk P&Z Resolution 4, Series of 2012 Page 3 of 3 VII b MEMORANDUM TO: Mayor and City Council FROM: Jessica Garrow, Long Range Planner a'`,1')C� Chris Bendon, Community Development Director RE: First Reading of Ordinance ,2012, Amending the process for changing the Land Use Code and the Official Zone District Map MEETING DATE: March 26, 2012 (Public Hearing April 2, 2012) SUMMARY: City Council approved the Aspen Area Community Plan on February 27, 2012. Following the adoption, they provided direction on implementation priorities, including requesting staff to process a code amendment that would update and streamline the process for amending the Land Use Code and the Official Zone District Map. The memo summarizes the code amendment, with the specific language included in the attached Ordinance. STAFF RECOMMENDATION: Staff recommends approval of the proposed code amendments. LAND USE REQUESTS AND REVIEW PROCEDURES: This meeting is to review potential changes to the process of amending the Official Zone District Map and the Land Use Code. Pursuant to Land Use Code Section 26.310, City Council is the final review authority following a recommendation from the Planning & Zoning Commission. BACKGROUND& OVERVIEW: As part of the implementation of the Aspen Area Community Plan (AACP), City Council has directed Community Development staff to process an amendment to the way the Land Use Code is amended. This is part of the same chapter outlining the process to update the Official Zone District Map. Staff is proposing changes to both portions of the chapter n an effort to provide additional clarity to both processes. STAFF COMMENTS: Based on feedback from City Council, staff is proposing a number of changes to the process for amending the Land use Code and Official Zone District Map. A copy of specific proposed language is attached in Exhibit B, and outlined below: • Clarify the process to amend the Official Zone District Map (also known as Rezoning) o Add language stating that initial zoning designations for annexed property is done through the process outlined in the chapter. o Update the review criteria to eliminate duplicative criteria. o Provide more detail on the purpose, process, and noticing requirements for the review. Page 1 of 3 • Amend the process to amend the Land Use Code o Update how a code amendment can be initiated. City Council must"endorse" any amendment initiated by a private party, the P&Z, or the Community Development Director. o Add a public engagement requirement to the process. The first step of any code amendment is to get feedback from interested parties, including HPC, P&Z, and possible outside entities, on the general concept of the amendment. That feedback is then used by City Council when they determine if a code amendment should be "endorsed." o Add an official "endorsement" of the concept. City Council must pass a Resolution on the concept of the code amendment at a public hearing prior to specific language being drafted. If a concept is "endorsed," staff would move forward with working on specific language to implement the concept. o Specific language is reviewed and approved by City Council by Ordinance. AMENDMENTS TO THE OFFICIAL ZONE DISTRICT MAP: Staff is proposing minor amendments to clarify the process to zone or re-zone a property. Currently, there is no language stating that this chapter governs the review of providing initial zoning to a property annexed into the city. Staff proposes adding language to clearly state that all zonings and rezonings are done in accordance with the chapter. Staff is also proposing to provide greater clarity to the purpose of the P&Z and City Council reviews of zonings and rezonings. Finally, staff proposes to eliminate duplicative review criteria. AMENDMENTS TO THE LAND USE CODE: City Council requested staff examine a way to streamline the code amendment process. In the past, some code amendments have extended over a period of months and years because the general concept is not supported by one of the groups reviewing the amendment. Rather than beginning the process with specific language, there would be a discussion about the general concept. This will enable P&Z, HPC, and the public to comment on the idea of a code amendment rather than language. Staff believes this will speed the process by enabling Council to vote early on in the process on whether or not to pursue a concept. Staff proposes to amend the initiation process to require City Council to endorse, through official adoption of a Resolution at a public hearing, any amendment proposed by staff or P&Z. REFERRAL COMMENTS: The Planning and Zoning Commission is reviewing the proposal at their March 20, 2012 regular meeting. The Council packet is due prior to that meeting, so staff will provide a verbal update of their comments at first reading on March 26, 2012. RECOMMENDATION: Staff recommends approval of the proposed code amendments. RECOMMENDED MOTION: (all motions are worded in the affirmative) "I move to approve Ordinance No. ti , Series of 2012, amending the process for amending the land use code and amending the Official Zone District Map." Page 2 of 3 ATTACHMENTS: EXHIBIT A—Review Criteria and Staff Findings EXHIBIT B— Draft P&Z Resolution Page 3 of 3 ORDINANCE NO. 11 SERIES OF 2011 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE PROCESS OF AMENDING THE LAND USE CODE AND THE OFFICIAL ZONE DISTRICT MAP: 26.310,AMENDMENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP, TO THE MUNICIPAL CODE OF THE CITY OF ASPEN,COLORADO. WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City of Aspen City Council initiated amendments to the Land Use Code related to the process of amending the Land Use Code and the Official Zone District Map; 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 Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Section 26.310, Amendments to the Land Use Code and Official Zone District Map; and, WHEREAS, during a duly noticed public hearing on March 20, 2012, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Section 26.310, Amendments to the Land Use Code and Official Zone District Map, as described herein, by a — L-D vote; and, WHEREAS,during a duly noticed public hearing on April 2,2012, the City Council took public testimony, considered pertinent recommendations from the Community Development Director, and the Planning and Zoning Commission,and considered the 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 standards and that the approval of the Code Amendments are consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the amendments to the Land Use Code are delineated as follows: Text unaffected is black and in standard print and looks like this. - - . - . - • - , --• -, . . - •. - .. • - - . Text being added to the code is green with underline and looks like this.; and, WHEREAS,the City Council finds that this ordinance furthers and is necessary for the promotion of public health, safety,and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN,COLORADO,AS FOLLOWS: Section 1:Amendments to the Land Use Code and Official Zone District Map 26.310) —Amendments to the Land Use Code and Official Zone District Map,shall be amended as follows: Chapter 26.310 AMENDMENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP Sec.26.310.010 Purpose Sec.26.310.020 Amendments to the Land Use Code-Procedure for amendment Sec.26.310.030 Amendments to the Land Use Code—Application contents Sec.26.310.040 Amendments to the Land Use Code Sstandards of review for amendments-te4he4apel-tise-eede—Initiation Sec.26.310.050 Amendments to the Land Use Code standards of review-Adoption Sec.26.310.060 Amendments to the Official Zone District Map-Procedure for amendment Sec.26.310.070 Initial Zoning for Annexed Properties Sec.26.310.080 Amendments to the Official Zone District Map—Application contents Sec.26.310.0930 Amendments to the Official Zone District Map—Standards of review for Sec.26.310.060100 Notation of Planning and Zoning Commission resolution on Official Zone District Map Sec.26.310.070110 Recordation of designation Sec.26.310.980120 Placement on City's Official Zone District Map Sec.26.310.083130 Disputes about zoning of a property Sec.26.310.090140 Time limitations Seems 26.310.010.Purpose. The purpose of this Chapter is to provide a means for amending the text of this Title(the Land Use Code)and the Official Zone District Mmap. It is not intended to relieve particular hardships or confer special privileges or rights on any person or property. See.26.310.020. Amendments to the Land Use Code—Procedure for amendment. A. General. An application for amendments to the Land Use Code : -•- e ... .e• •• Mat—may be initiated by -. .-. - - , • •_ .:. - •- - - - - •- it_y Council and shall be processed in accordance with the common development review procedures set forth at Chapter 26.304 and the steps outlined below. City Council may authorize a private party to submit a code amendment application. In such case,the City Council shall determine the extent to which Step One is required (Steps Two and Three are mandatory)and shall determine if the applicant shall pay review fees. The Planning and Zoning Commission may initiate an amendment to the Land Use Code, as provided for in Chapter 26.212, Planning and Zoning Commission. Initiation shall require the adoption of a Resolution by the Planning and Zoning Commission. The Resolution shall be forwarded to City Council for authorization to proceed through the process outlined herein. City Council shall determine the extent to which Step One is required (Steps Two and Three are mandatory). The Community Development Director may initiate an amendment to the Land Use Code, as provided for in Chapter 26.210, Community Development Department. City Council shall determine the extent to which Step One is required(Steps Two and Three are mandatory). A B. Steps Rcequired: Unless initiated by the City Council in accordance with Subsection C• Formatted:Indent:Left: 0",First line: 0", below, or unless additional steps are requested by City Council, the review of a proposed text Numbered+Level:1+Numbering Style:A,e, c,...+Start at:1+Alignment:Left+Aligned amendment shall require three steps. •- =-= - at: 0.25'+Indent at: 0.63",Tab stops:Not at 0.7" 1. Step One-Community Input. 4 a. Purpose: To gather ideas, suggestions, comments, opinions, and recommendations- Formatted:Indent:Left: 0.5",Space After: 0 from a wide range of participants to determine if an amendment to the text'of the pt,Numbered+Level:2+Numbering Style:a, b,c,...+Start at:1+Alignment:Left+ Land Use Code should be pursued by the City Council. Aligned at: 0.75"+Tab after: 1"+Indent at: 1",Tab stops: 0.75",List tab+Not at 1"+ b. Process:The Community Development Director shall seek input from a wide range of-- 1.28" community members through a variety of methods,which may include focus groups, Formatted:Indent:Left: 0.5",space After: , Y g Y �' g P pt,Numbered+Level:2+Numbering Style:a, structured facilitated sessions, surveys, or other methods. The Director shall solicit b,c,...+Start at:1+Alignment:Left+ input from the Planning and Zoning Commission, the Historic Preservation Aligned ac: o.7s +Tab after: 1"+Indent at: 1",Tab stops: 0.75",List tab+Not at 1"+ 1.28" Commission,or other Boards of the City,as applicable. Depending on the nature of the potential amendment, the Director may solicit input from business owners, lodging operators, local architects and planners, organizations that may have an interest in the topic,and the general public. The Director shall develop a summary of the input methods used and comments received during this step. c. Notice requirements:None. 1 Formatted:Indent:Left: 0.5",Space After: 0 pt,Numbered+Level:2+Numbering Style:a, b,c,...+Start at:1+Alignment:Left+ h2.Step One-Two-Public hearing before • :-•••_ : _:-'-. :---- :- ity Council. Aligned at: 0.75"+Tab after: 1"+Indent at: 1",Tab stops: 0.75",List tab+Not at 1"+ a. Purpose: To determine if -: -.: .. -- . .. - . - - 1.28 an amendment to the text of the Land Use Code should be pursued. b. Process: The Community Development Director shall present City Council with a summary of comments received during Step One and a recommendation on whether and how to amend the Land Use Code. The recommendation shall include proposed objectives to be accomplished but need not include specific code sections or proposed text. The recommendation shall include an analysis of the public policies of the City to be advanced including, but not limited to, those stated in the Aspen Area ■ Community Plan. The Director may recommend options for consideration. The City Council may request additional community engagement prior to a decision. c. Standards of review: Section 26.310.040, Amendments to the Land Use Code standards of review-Initiation d. Form of decision: City Council shall decide to pursue an amendment to the Land Use Code by resolution after considering the recommendation of the Community Development Director and comments and testimony from the public at a duly noticed public hearing. The resolution shall include the obiective to be accomplished by the code amendment but need not cite specific code sections or proposed text. The City Council may elect to not amend the Land Use Code,which shall not require adoption of a resolution. Notice requirements : - - •-- . .. -•• - - - ---: Publication pursuant to Subsection 26.304.060.E.3.a,Publication of notice. 2 3.Step Two Three—Public Hearing before City Council. a. Purpose: To determine if application meets standards for amendment to code the text of the Land Use Code or Official Zone District Map. b. Process: The Community Development Director shall provide City Council with a recommendation to amend the Land Use Code with proposed text to chapters and sections. c. Standards of review: Section 26.310.050, Amendments to the Land Use Code standards of review-Adoption d. Form of decision: City Council decision shall be by ordinance after considering the recommendation of the Community Development Director and comments and testimony from the public at a duly noticed public hearing. The ordinance shall include the amended text of the Land Use Code by chapter and section. de. .. _.' •--•- . . . ' . - • _ .. _ --- . -. a . . - .• •• c. in addition to the requisite notice requirements for adoption of an ordinance by City Council). Notice requirements for an amendment to the Official Zone District Map initiated by the City: Publication, mailing to property owners that are subject to the rezoning Notice requirements fer an amendment to the Land Use Code: Publication pursuant to Subparagraph 26.304.060.E.3.a., Publication of notice, in addition to the requisite notice requirements for adoption of an ordinance by City Council. I $:C. Emergency amendments to Land Use Code by City Council. Notwithstanding the procedures for review set forth above and consistent with the authority of the City Council to adopt emergency ordinances pursuant to Section 4.11 of the City Charter,for the preservation of public property, health, peace or safety, the City Council may amend this Title in accordance with the procedures set forth at Section 4.11 of the City Charter(Emergency ordinances). (Ord. No.27-2002,§6;Ord.No. 12,2007,§14) See--26.310.030.Amendments to the Land Use Code—Application contents. A formal application is required prior to initiating Step Three of the code amendment process, outlined above in Section 26.310.020(B)(3), Step Three — Public Hearing before Ciry Council. The application shall include:The development application for amendment to the text of this Title or amendment to the Official Zone District Map shall include: A. The general application information required in Section 26.304.030.Application and Fees. B. A copy of the City Council resolution requesting the amendment and a brief summary of how the proposed text meets the stated objectives of the amendment. A-C. A copy of the comments received during the Public Input phase. D, -- ::: •:: •:- ::. . - --- - -- - • . - -, The precise wording of any-the proposed amendment. 1. The present Zone District classification and existing land uses of the real property 2. The area of the property proposed to be amended,stated in square feet or acres or a major fraction the_ee 3. An accurate survey map of the real property proposed for amendment. 26.310.040. Amendments to the Land Use Code standards of review—Initiation In reviewing a request to pursue an amendment to the text of this Title, per Section 26.310.020(B)(2), Step Two — Public Hearing before City Council. the City Council shall consider: A. Whether there exists a community interest to pursue the amendment. B. Whether the objectives of the proposed amendment furthers an adopted policy, community goal,or objective of the City including,but not limited to,those stated in the Aspen Area Community Plan. C. Whether the objectives of the proposed amendment are compatible with the community character of the City and in harmony with the public interest and the purpose and intent of this Title. See.26.310.0540. Amendments to the Land Use Code Standards of review- Adoption- . . • . . ,• • • . . • . . • • • . . . In reviewing a^ mendment t,. an application to amend the text of this Title, per Section 26.310.020(B)(3), Step Three — Public Hearing before City Council, the City Council and the -. •• . . shall consider: I.A. Whether the proposed amendment is in conflict with any applicable portions of this Title. CB_Whether the proposed amendment chieves the policy, community goal, or objective cited as reasons for the code amendment or achieves other public policy objectives. D;C_Whether the proposed amendment _ •• _:. : ' • . ... - • • . . whether—it—is compatible with the community character of the City and is in harmony with the public interest and the purpose and intent of this Title. See:-26.310.0620. Amendments to the Official Zone District Map-Procedure for amendment. A. General. An application for amendments to the Land Use Code or the Official Zone District Map may be initiated by the City Council,the Community Development Director,or a person or persons owning more than fifty(50)percent of the area of land subject to the amendment by-the•. .- ' :::•- • - - - ;, ., ... and shall be processed in accordance with the common development review procedures set forth at Chapter 26.304. B. Steps required: Unless initiated by the City Council in accordance with Subsection C below;The review of an application to amend the Official Zone District Map shall require two (2)steps .. .' _ . . . ... . _.. _ . _ -- ' . • : :- -- --- , - 1. Step One—Public hearing before Planning and Zoning Commission. a. Purpose: To determine if the application meets standards for amendment to code text or to the Official Zone District Map and to provide a recommendation to City Council. b. Process: The Community Development Director shall provide the Planning and Zoning Commission with a recommendation regarding the specific request to amend the Official Zone District Map. arc.Standards of Review: Section 26.310.090, Amendments to the Official Zone District Map—Standards of Review Notice requirements for a privately initiated amendment to the Publication, mailing and posting (see Subparagraphs 26.304.060.E.3.a., b. and c.)._ or an amendment to the Official Zone District Map initiated by the City: Publication,, notice shall also include mailing to propeFtowners of property that are subject to the rezoning application at least fifteen (15) days prior to the public hearing. pursuant to Subsection 26.304.060.E.3.a. 2. Step Two—Public Hearing before City Council. a. Purpose: To determine if application meets standards for amendment to eerie texts-the Official Zone District Map. b. Process: The Community Development Director shall forward the recommendation of the Planning and Zoning Commission and shall provide the City Council with a recommendation to amend the Official Zone District Map. c. Standards of review: Section 26.310.090, Amendments to the Official Zone District Map—Standards of Review 13Kd.Form of decision: City Council decision shall be by Ordinance after considering the recommendations of the Community Development Director, the Planning and Zoning Commission, and comments and testimony from the public at a duly noticed public hearing. e. Notice requirements . . • . - --- . . - e . District Map: Publication, mailing and posting (sec as provided for in subparagraphs 26.304.060.E.3.a., b. and c., Public Notice — Publication of notice, Posting of notice, and Mailing of notice, in addition to the requisite notice requirements for adoption of an ordinance by City Council). 1 Notice requirements 'For an amendment to the Official Zone District Map initiated by the City: Publication. , notice shall also include mailing to property owners that are of property subject to the rezoning application at least fifteen(15) days prior to the public hearing, in addition to the requisite notice requirements for adoption of an ordinance by City Council. pursuant to Subparagraph 26.304.060.E.3.a., in addition to the requisite notice requirements for adoption of an ordinance by City Council. procedures for review set forth above and consistent with the authority of the City Council to public property. health, peace or safety, the City Council may amend this Title in accordance with the procedures set forth at Section 4.11 of the City Charter(Emergency ordinances). (Ord. No.27 2002. §6:Ord.No. 12,2007,§14) 26.310.070.Initial Zoning for Annexed Properties. An application to establish the initial zoning for annexed property shall be reviewed according to the standards and procedures of this Chapter. Sec.26.310.0830. Amendments to the Official Zone District Map—Application Contents. The development application for amendment to the text of this Title or an amendment to the Official Zone District Map shall include: A. The general application information required in Section 26.304.030. Application and Fees. C. If the application requests an amendment to the Official Zone District Map: e:I3_The present Zone District classification and existing land uses of the real property• --- Formatted:Space After: 0 pt,Numbered+ proposed to be amended. Level:1+Numbering Style:A,B,C,...+Start at:1+Alignment:Left+Aligned at: 0.38"+ Indent at: 0.75",Tab stops:Not at 1.28" fC_The area of the property proposed to be amended, stated in square feet or acres-eF-a-------- Formatted:Space After: 0 pt,Numbered+ Level:1+Numbering Style:A,B,C,...+Start at:1+Alignment:Left+Aligned at: 0.38"+ Indent at: 0.75",Tab stops:Not at 1.28" g.D_An accurate survey map of the real property proposed for amendment. ' Formatted:Space After: 0 pt,Numbered+ Level:1+Numbering Style:A,B,C,...+Start See.26.310.0950.Amendments to the Official Zone District Map standards of review. at:1+Alignment:Left+Aligned at: 0.38"+ Indent at: 0.75",Tab stops:Not at 1.28" In reviewing an amendment to the Official Zone district Map,the City Council and the Planning and Zoning Commission shall consider: BA. Whether the proposed amendment is compatible with surrounding zone districts and land uses,considering existing land use and neighborhood characteristics. C. The effect of the proposed amendment on traffic generation and road safety. D B. Whether and the extent to which the proposed amendment would result in demands on public facilities and whether and the extent to which the proposed amendment would exceed the capacity of such public facilities including, but not limited to, transportation facilities, sewage facilities,water supply, parks, drainage, schools and emergency medical facilities. &:C. Whether and the extent to which the proposed amendment would result in significantly adverse impacts on the natural environment. &D. Whether the proposed amendment is consistent and compatible with the community character in the City and in harmony with the public interest and the intent of this Title. H. Whether the proposed amendment would be in conflict with the public interest and whether it See-26.310.060100. Notation . • •: . • _. • _ . • . . I n Official Zone District Map. - . ... . . . . . .. -.. . .- Upon acceptance of an application for an amendment to the Official Zone District Map,the Community Development Director shall make a notation on the Official Zone District Map to show the pending amendment. I See:26.310.070110. Recordation of designation. Upon the effective date of an act by the City Council approving a development application for an amendment to the Official Zone District Map,the Community Development Director shall notify the City Clerk of the designation,who shall record among the real estate records of the clerk and recorder of the county, a certified copy of the ordinance. The ordinance shall include a legal description of the property whose Zone District designation is changed by the amendment. I See:-26.310.080120. Placement on City's Official Zone District Map. Upon the effective date of an act by the City Council approving a development application for an amendment to the Official Zone District Map,the Community Development Director shall place the amendment on the City's Official Zone District Map, which is kept in the Community Development Department. See-26.310.085130. Disputes about zoning of a property. In cases where there is a dispute as to the correct zoning of a property,the ordinance approving or establishing the zoning shall be the final authority and not the Official Zone District Map. (Ord.No. 52-2003,§4) See:26.310.0+90140. Time limitations. Unless otherwise waived by City Council, the City shall not accept an application to amend the Official Zone District Map. nor shall the City accept or initiate an application to amend the text of the Land Use Code,which has been denied for a period of two years from the date of denial. text of this Title or to the Official Zone District Map. the City Council and the Planning and Zoning Commission shall not consider: date of the action:or text of this Title that constitutes any other kind of amendment of any part of the same land for a period of one(1)year from the date of the action. C. The time limitation of this Subsection may be waived by the majority vote of the City Council when such action is deemed necessary to prevent injustice or facilitate the proper development of the City. Section 2: Effect Upon Existing Litigation. This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided,and the same shall be conducted and concluded under such prior ordinances. Section 3:Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction,such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 4:Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty(30)days following final passage. Section 5:Notice of Public Hearing. A public hearing on this ordinance shall be held on the 2"d day of April,2012, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers,Aspen City Hall, 130 4 S. Galena St.,Aspen,Colorado,a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. FIRST READING OF THIS ORDINANCE WAS INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 26th day of March,2012. ATTEST: Kathryn S.Koch,City Clerk Michael C.Ireland,Mayor FINALLY,adopted,passed and approved this day of ,20_ ATTEST: Kathryn S.Koch,City Clerk Michael C.Ireland,Mayor Approved as to form: James R True,City Attorney Exhibit A: Sec. 26.310.040. Standards of review for amendments to the land use code. In reviewing an amendment to the text of this Title, the City Council and the Planning and Zoning Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Finding: This proposed amendment is consistent with the Land Use Code. It does not amend any of the powers and duties of the City Council, P&Z, or The Community Development Director, as outlined in Chapter 200. The proposed changes do not create a conflict with any other provision of the Land Use Code. Staff finds this criterion is met. B. Whether the proposed amendment furthers an adopted policy, community goal, or objective. Staff Finding: In conjunction with the adoption of the 2012 AACP, City Council has established a set of goals for implementation of that guiding document. Those include updating and streamlining the process of amending the Land Use Code. The proposed amendments are consistent with that direction. In addition, staff believes this updated process will provide greater public awareness and interaction on amendments to the land use code which supports the City's goal of increasing predictability and transparency in the land use review process. Staff finds this criterion is met. C. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. Staff Finding: Staff believes this amendment is consistent with the public interest and is in harmony with the purpose and intent of the Land Use Code. Staff finds this criterion ismet. • Exhibit A Page 1 of 1 �chibf� RESOLUTION No. _ (Series of 2012) A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION, ASPEN, COLORADO,RECOMMENDING CITY COUNCIL ADOPT CODE AMENDMNETS RELATED TO AMENDNENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP: 26.310,AMENDNENTS TO THE LAND USE CODE AND OFFICIAL ZONE DISTRICT MAP WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City of Aspen City Council initiated amendments to the Land Use Code related to the process of amending the Land Use Code and the Official Zone District Map; 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 Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Section 26.310, Amendments to the Land Use Code and Official Zone District Map; and, WHEREAS, during a duly noticed public hearing on March 20, 2012, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Section 26.310,Amendments to the Land Use Code and Official Zone District Map, as described herein, by a — L-D vote; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310; and, WHEREAS,the Aspen Planning and Zoning Commission fords that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF ASPEN,COLORADO THAT: Section 1: Amending the Official Zone District Map The Planning and Zoning Commission recommends City Council approve an amendment to clarify the process to amend the Official Zone District Map (also known as Rezoning), including eliminating duplicative review criteria, outlining a process for establishing initial zoning for annexed properties, and more clearly outlining the purpose, process, and noticing requirements. Planning & Zoning Commission Reso # of 2012 Amendments to the Official Zone District Map and the Land Use Code Page 1 of 2 Section 2: Amending the Land Use Code The Planning and Zoning Commission recommends City Council approve an amendment to amend the process for amending the Land Use Code as follows: • Update how a code amendment can be initiated. City Council must "endorse" any amendment initiated by a private party, the P&Z, or the Community Development Director. • Add a public engagement requirement to the process. The first step of any code amendment is to get feedback from interested parties, including HPC, P&Z, and possible outside entities, on the general concept of the amendment. That feedback is then used by City Council when they determine if a code amendment should be "endorsed." • Add an official "endorsement" of the concept. City Council must pass a Resolution on the concept of the code amendment at a public hearing prior to specific language being drafted. If a concept is "endorsed," staff would move forward with working on specific language to implement the concept. • Specific language is reviewed and approved by City Council by Ordinance. FINALLY, adopted and approved by the Planning and Zoning Commission this _ day of 2012. APPROVED AS TO FORM: PLANNING AND ZONING COMMISSION: James R.True,City Attorney LJ Erspamer, P&Z Chairman ATTEST: Jackie Lothian,Deputy City Clerk Planning & Zoning Commission Reso # of 2012 Amendments to the Official Zone District Map and the Land Use Code Page 2 of 2 MEMORANDUM TO: Mayor and City Council FROM: Jessica Garrow, Long Range Plannefj f }(; Chris Bendon, Community Development Director RE: First Reading of Ordinance Ia., 2012, Amendments to the CC and C-1 Zone Districts MEETING DATE: March 26, 2012 (Public Hearing April 2, 2012) SUMMARY: City Council approved the Aspen Area Community Plan on February 27, 2012. Following the adoption, they provided direction on implementation priorities, including requesting staff to process code amendments related to downtown building heights. The attached ordinance lowers heights and lowers FAR related to free-market residential uses in the Commercial Core (CC) and Commercial (C-1) zone districts. The memo summarizes the code amendment, with the specific language included in the attached Ordinance. STAFF RECOMMENDATION: Staff recommends approval of the proposed code amendments. LAND USE REQUESTS AND REVIEW PROCEDURES: This meeting is to review potential changes to the Commercial Core (CC) and Commercial (C-1) zone districts. Pursuant to Land Use Code Section 26.310, City Council is the final review authority following a recommendation from the Planning & Zoning Commission. BACKGROUND&OVERVIEW: As part of the implementation of the Aspen Area Community Plan (AACP), City Council has directed Community Development staff to amend the height allowances and free-market floor area allowances in the CC and C-1 zone districts. The AACP calls for an examination of building heights, and includes a policy stating, "Establish lower maximum building heights to maintain Aspen's small town character." (Managing Growth for Community & Economic Sustainability Policy I.6) It also calls for an examination of commercial zone districts: "Ensure that the City Land Use Code results in (commercial) development that reflects our architectural heritage in terms of site coverage, mass, scale, density and a diversity of heights..." (Managing Growth for Community & Economic Sustainability Policy V.3) In addition, the AACP discusses the importance of maintaining commercial uses in the commercial zones. Page 1 of 6 STAFF COMMENTS: Based on feedback from City Council, staff is proposing a number of changes to the CC and C-1 zones. A copy of the proposed language is done in track changes in the attached Ordinance, and outlined below: • Reducing the maximum height in the CC and C-1 zones by four (4) feet o CC Zone: from 42 feet to 38 feet o C-1 Zone: from 40 feet to 36 feet • Incorporating minimum floor to floor heights into the zone districts o CC Zone: First Floor 13 feet to 15 feet, Upper Floors 10 feet o C-1 Zone: First Floor 11 feet to 13 feet, Upper Floors 10 feet • Reducing the allowed amount of Free-Market Residential floor area for non-historic properties from .75:1 to .5:1 in both zones, and only if equal amounts of Affordable Housing is provided on the same parcel. • Increasing the required setback for all rooftop equipment to 20 feet from any street-facing facade. MAXIMUM HEIGHTS: Staff is proposing to maintain the current 28 foot height limit for two- story building elements in the CC and C-1 zone districts. This height relates well to Aspen's historic built pattern and creates some flexibility for applicants as they design their buildings. The CC and C-1 zones currently allow a range of heights for three-story building elements: 38 — 42 feet in CC and 36 —40 feet in C-1. Staff is recommending to maintain a range of heights, but to lower it by four (4) feet so that the current low of the range end becomes the maximum allowed height: 34 — 38 feet in CC and 32—36 in C-1. Staff recommends maintaining the range because it ensures a diversity of heights in Aspen's commercial zones, which is consistent with the historic development pattern. It also ensures that new buildings will not all be the same height, and that there will be some visual relief to the built environment. Staff also recommends adding language indicating that reaching the maximum height is not achievable in all situations. This language is currently included in the FAR section, and staff believes it is important to add it to the maximum height section to provide greater clarity on the intention of the height ranges. MINIMUM FLOOR TO FLOOR HEIGHTS: The CC and C-1 zone districts do not currently include requirements for floor to floor or floor to ceiling heights —those are included in the Commercial, Lodging and Historic District Design Objectives and Guidelines. Because the maximum building heights are proposed to be lowered, staff recommends codifying minimum floor to floor heights to avoid any conflicts with the Design Guidelines. The Guidelines currently state that the minimum floor to floor heights in CC and C-1 should be 13 to 15 feet on the first floor, and that minimum floor to ceiling heights on upper floors in CC and C-1 should be 9 feet. Aspen's historic development pattern includes generous first floor heights. This also provides flexibility in the different commercial uses that can occur in a building. Typically, the focus of Page 2 of 6 19th century architecture was on the first floor where the commercial spaces were located. Offices and living spaces were on upper floors with a shorter plate height and simpler architecture. The first floor was more commonly transparent, so goods could be displayed, while the second story had smaller windows and was usually reserved for a residential or office space. The design guidelines encourage consistency with this historic pattern. Typical storefronts in the core span up to between 13 feet and 15 feet to the top of the transom to permit the maximum amount of sunlight into the shop. Two examples are below: The Andres Building (left) storefront is 14 feet 2 inches to top and the Red Onion (right) storefront is 13 feet to the top. ' 4:_a_il _,J4k, - ' '''.''',4.''‘'f'-‘sA.-.--- , '-'„,„.4F C ' , ., u R � r _r i }k ',,,..5,::,4.a0:0,40,, , r s > 3 �. . . i 1 H Lt ..., e { - w. . More recent construction includes similar first floor heights. Below are examples from the Ispaces housing Wolf Camera, Peaches, and the Gap: ?r �fA.2 f 1` A r• , -? Kandycom Building 0-7s- - ,-,..e-.,. .,., , w, -.da-z.4_.- 4---vV---- !- i,,r,"::::,,, A,,, ',-.-. ,, '-4f ,"..:--;,i_ * , .i ti } yy,�,� r8 w.nwtw r.c Page 3 of 6 The Kandycom Building, with Wolf Camera, has an estimated height of 14 to 15 feet floor to ceiling. The Peaches Building lir /PR Agits t E � 1 ' The Peaches building is approximately 12 feet to the top of the first floor ceiling (and an estimated 13 — 14 feet floor to floor). The Gap Building ' — 111 w 11110 0-4004'4,, l 1he Gap building is approximately 12 to 13 feet to top of transom and interior ceiling. Page 4 of 6 Staff is recommending to maintain the current floor to floor requirements for the first floor in the CC zone district, but to lower the floor to floor requirements for the first floor in the C-1 zone district to 11 feet to 13 feet. This maintains the historic pattern in the historic commercial core, and reflects the fact that the C-1 zone tends to attract different uses that may not need the large first floor heights. Staff is recommending a 10 foot floor to floor height for all upper floors in CC and C-1. This creates a common standard for building levels and helps to make the standards more understandable, rather than having two different calculations for first and upper floors. ROOFTOP EQUIPMENT: The land use code currently requires that all elevators and stairway overruns be setback from the street by at least 15 feet. Staff proposes to extend this to all rooftop equipment and appurtenances and to increase the setback to 20 feet. This will ensure the equipment is not seen from pedestrians on the street. FREE-MARKET RESIDENTIAL FAR: One of the changes to the Land Use Code during the 2006 — 2007 moratorium was to lower free-market FAR to .5:1 by right, with an ability to increase to .75:1 if equal amounts of affordable housing are provided on the same parcel. Staff is proposing to amend this for non-historic properties to .5:1 only if equal amounts of affordable housing is developed on the same parcel. Staff believes that limiting the free-market residential allowances will help promote commercial uses in Aspen's downtown commercial zones, which is consistent with the purpose of the districts. Historic landmark properties would continue to have a 0.5:1 free-market floor area by right. Staff believes it is important to maintain this floor area as a benefit for historic properties, and to ensure that it does not conflict with the existing benefits outlined through the growth management quota system. Staff believes that residential uses are appropriate for downtown, but the current zoning encourages projects where free-market residential uses, not commercial uses, are the primary driver of projects in the downtown. Staff believes the requirement to provide equal amounts of free-market and affordable housing on-site will help promote vibrant, lights-on community. REFERRAL COMMENTS: The Planning and Zoning Commission is reviewing the proposal at their March 20, 2012 regular meeting. The Council packet is due prior to that meeting, so staff will provide a verbal update of their comments at first reading on March 26, 2012. RECOMMENDATION: Staff recommends approval of the proposed code amendments. RECOMMENDED MOTION: (all motions are worded in the affirmative) "I move to approve Ordinance No. la„ Series of 2012, amending the height and free-market residential FAR in the CC and C-1 zone districts and amending the allowed exceptions to height limitations related to rooftop mechanical equipment and other appertunances." ATTACHMENTS: Page 5 of 6 EXHIBIT A—Review Criteria and Staff Findings EXHIBIT B—Draft P&Z Resolution Page 6 of 6 ORDINANCE NO. d cZ SERIES OF 201 .. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE HEIGHT AND FAR IN THE CC AND C-1 ZONE DISTRICTS: 26.710.140,COMMERCIAL CORE(CC)ZONE DISTRICT; 26.710.150,COMMERCIAL (C-1)ZONE DISTRICT; AND AMENDING VARIOUS SECTIONS OF CHAPTER 26.575.020(F)(4), CALCULATIONS AND MEASUREMENTS-ALLOWED EXCEPTIONS TO HEIGHT LIMITATIONS, TO THE MUNICIPAL CODE OF THE CITY OF ASPEN, COLORADO. WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City of Aspen City Council initiated amendments to the Land Use Code related to the allowed heights and free-market FAR in the CC and C-1 zone districts; 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 Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Sections 26.710.140, Commercial Core(CC)Zone District;26.710.150,Commercial(C-1)Zone District; and, WHEREAS, during a duly noticed public hearing on March 20, 2012, the Planning and Zoning Commission recommended that City Council approve the proposed amendments by a — L-D vote; and, WHEREAS,during a duly noticed public hearing on April 2, 2012,the City Council took public testimony, considered pertinent recommendations from the Community Development Director,and the Planning and Zoning Commission,and considered the 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 standards and that the approval of the Code Amendments are consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS,the amendments to the Land Use Code are delineated as follows: Text unaffected is black and in standard print and looks like this. - . . . . - • - • - - . . . -- .. . .. • - • . Text being added to the code is green with underline and looks like this.; and, WHEREAS,the City Council finds that this ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AS FOLLOWS: Section 1: Commercial Core(CC)Zone District 26.710.140(D) — Commercial Core (CC) Zone District — Dimensional Requirements, shall be amended as follows: D. Dimensional requirements. The following dimensional requirements shall apply to all permitted and conditional uses in the Commercial Core (CC)Zone District: 1. Minimum Gross Lot Area(square feet): No requirement. 2. Minimum Net Lot Area per dwelling unit(square feet): No requirement. 3. Minimum lot width(feet): No requirement. 4. Minimum front yard setback(feet): No requirement. 5. Minimum side yard setback (feet): No requirement. 6. Minimum rear yard setback(feet): No requirement 7. Minimum utility/trash/recycle area: Pursuant to Section 26.575.060. 8. Maximum height (feet): twenty-eight (28) feet for two-story elements of a building. Thirty-six (368) feet for three-story elements of a building, which may be increased to 42thirty-eight (38) feet through commercial design review. See Chapter 26.412. Achieving the maximum height is subject to compliance with applicable design standards, view plane requirements, public amenity requirements and other dimensional standards. Accordingly, the maximum height is not an entitlement and is not achievable in all situations. 9. Minimum floor to floor heights: a. First Floor: Thirteen(13) feet to a maximum of to fifteen (15) feet b. Upper Floors: Ten(10) feet 109. Minimum distance between buildings on the lot(feet): No requirement. 1110. Public amenity space: Pursuant to Section 26.575.030. 12 . Floor area ratio (FAR): The following FAR schedule applies to uses cumulatively up to a total maximum FAR of 2.75:1. Achieving the maximum floor area ratio is subject to compliance with applicable design standards, view plane requirements, public amenity requirements and other dimensional standards. Accordingly,the maximum FAR is not an entitlement and is not achievable in all situations. a. Commercial uses: 2:1. b. Arts, cultural and civic uses, public uses, recreational uses, academic uses, child care center and similar uses: 2.75:1. c. Affordable multi-family housing: No limitation. d. Lodging: 0.5:1, which may be increased to 1.5:1 if the individual lodge units on the parcel average five hundred (500) net livable square feet or less, which may be comprised of lock-off units. e. Free-market multi-family housing: For non-historic properties: 0.5:1, which may be increased to 0.75:1 if affordable housing equal to one hundred percent (100%) of the free-market residential floor area is developed on the same parcel. For Historic Landmark Properties: 0.5:1. 13-1-2. Maximum multi-family residential dwelling unit size (square feet): two thousand (2,000) square feet of net livable area. a. The property owner may increase individual multi-family unit size by extinguishing historic transferable development right certificates ("certificate" or "certificates"), subject to the following: 1. The transfer ratio is 500 square feet of net livable area for each certificate that is extinguished. 2. The additional square footage accrued may be applied to multiple units. However, the maximum individual unit size attainable by transferring development rights is 2,500 square feet of net livable area (i.e., no more than five hundred [500] additional square feet may be applied per unit). 3. This incentive applies only to individual unit size. Transferring development rights does not allow an increase in the FAR of the lot. Commentary: Refer to Chapter 26.535 for the procedures for extinguishing certificates. 14 . Maximum lodge unit size (square feet): 1,500. When units are comprised of lock-off units, this maximum shall apply to the largest possible combination of units. 1544. Commercial/residential ratio: The total lodging and free-market residential net livable area shall be no greater than the total above-grade floor area associated with the uses described in Subparagraphs 26.710.140.D.11.a. and b. combined on the same parcel. Section 2: Commercial(C-1) Zone District 26.710.150(D) — Commercial Core (CC) Zone District — Dimensional Requirements, shall be amended as follows: D. Dimensional requirements. The following dimensional requirements shall apply to all permitted and conditional uses in the Commercial (C-1) Zone District: 1. Minimum Gross Lot Area(square feet): a. Detached residential dwelling, two (2) detached residential dwellings, duplex dwelling and bed and breakfast: 3,000. b. All other uses: No requirement. 2. Minimum Net Lot Area per dwelling unit(square feet): a. Detached residential dwelling, two (2) detached residential dwellings, duplex dwelling and bed and breakfast: Same as R-6 Zone District. b. All other uses: No requirement. 3. Minimum lot width(feet): a. Detached residential dwelling, two (2) detached residential dwellings, duplex dwelling and bed and breakfast: Same as R-6 Zone District. b. All other uses: No requirement. 4. Minimum front yard setback(feet): a. Detached residential dwelling, two (2) detached residential dwellings, duplex dwelling and bed and breakfast: Same as R-6 Zone District. b. All other uses: No requirement. 5. Minimum side yard setback(feet): a. Detached residential dwelling, two (2) detached residential dwellings, duplex dwelling and bed and breakfast: Same as R-6 Zone District. b. All other uses: No requirement. 6. Minimum rear yard setback(feet): a. Detached residential dwelling, two (2) detached residential dwellings, duplex dwelling and bed and breakfast: Same as R-6 Zone District. b. All other uses: No requirement. 7. Minimum utility/trash/recycle area: Pursuant to Section 26.575.060. 8. Maximum height: a. Detached residential dwelling, two (2) detached residential dwellings, duplex dwelling and bed and breakfast: Same as R-6 Zone District. b. All other uses: twenty-eight (28) feet for two-story elements of a building. Thirty- foursix (346) feet for three-story elements of a building, which may be increased to €arty-thirty-six (3649) feet through commercial design review. See Chapter 26.412. Achieving the maximum height is subject to compliance with applicable design standards, view plane requirements, public amenity requirements and other dimensional standards. Accordingly, the maximum height is not an entitlement and is not achievable in all situations. 9. Minimum floor to floor heights: a. First Floor: Eleven(11) feet to a maximum of thirteen(13) feet b. Upper Floors: Ten(10) feet 109. Minimum distance between buildings on the lot(feet): 1 e a. Detached residential dwelling, two (2) detached residential dwellings, duplex dwelling and bed and breakfast: Same as R-6 Zone District. b. All other uses: No requirement. 114-0. Public amenity space: Pursuant to Section 26.575.030. 1211. Floor area ratio (FAR): The following FAR schedule applies to uses cumulatively up to a total maximum FAR of 2.5:1. Achieving the maximum floor area ratio is subject to compliance with applicable design standards, view plane requirements, public amenity requirements and other dimensional standards. Accordingly,the maximum FAR is not an entitlement and is not achievable in all situations. a. Commercial uses: 1.5:1. i b. Arts, cultural and civic uses, public uses, recreational uses, academic uses, child care center and similar uses: 2.5:1. c. Affordable multi-family housing: No limitation. d. Lodging: .5:1, which may be increased to 1.5:1 if the individual lodge units on the parcel average five hundred (500) net livable square feet or less, which may be comprised of lock-off units. e. Free-market multi-family housing: For non-historic properties: 0.5:1, which-may-be increased to .75:1 if affordable housing equal to one hundred percent (100%) of the free-market residential floor area is developed on the same parcel. For Historic Landmark Properties: 0.5:1. f. Detached residential dwellings, duplex dwellings and bed and breakfast (as the sole use of parcel and not cumulative with other uses): Eighty percent (80%) of allowable floor area of a same-sized lot located in the R-6 Zone District. (See R-6 Zone District.) Extinguishment of historic TDRs shall not permit additional FAR for single-family or duplex development. 13-1-2. Maximum multi-family residential dwelling unit size (square feet): 2,000 square feet of net livable area. a. The property owner may increase individual multi-family unit size by extinguishing historic transferable development right certificates ("certificate" or "certificates"), subject to the following: 1. The transfer ratio is five hundred (500) square feet of net livable area for each certificate that is purchased. 2. The additional square footage accrued may be applied to multiple units. However, the maximum individual unit size attainable by transferring development rights is two thousand five hundred (2,500) square feet of net livable area (i.e., no more than five hundred [500] additional square feet may be applied per unit). � v 3. This incentive applies only to individual unit size. Transferring development rights does not allow an increase in the FAR of the lot. Commentary: Refer to Chapter 26.535 for the procedures for extinguishing certificates. 14 . Maximum lodge unit size (square feet): 1,500. When units are comprised of lock-off units,this maximum shall apply to the largest possible combination of units. 154-4. Commercial/residential ratio: The total lodging and free-market residential net livable area shall be no greater than the total above-grade floor area associated with the uses described in Subparagraphs 26.710.150.D.11.a. and b. combined on the same parcel. Section 3: Allowed Exceptions to Height Limitations Section 26.575.020(F)(4)(a-e) of the Aspen Municipal Code, Measuring Building Heights — Allowed Exceptions to Height Limitations, which section describes the allowed exceptions to building heights, is hereby amended to read as follows: 4. Allowed Exceptions to Height Limitations a. Chimneys,flues, and similar venting apparatus. Chimneys, flues, vents, and similar venting apparatus may extend no more than ten (10) feet above the height of the building at the point the device connects. For roofs with a pitch of 8:12 or greater, these elements may not extend above the highest ridge of the structure by more than required by adopted building codes or as otherwise approved by the Chief Building Official to accommodate safe venting. To qualify for this exception, the footprint of these features must be the minimum reasonably necessary for its function the features must be combined to the greatest extent practical. Appurtenances such as hoods, caps, shields, coverings, spark arrestors, and similar functional devices or ornamental do-dads shall be contained within the limitations of this height exception. On structures other than a single-family or duplex residential building or an accessory building, all Chimneys, flues, vents, and similar venting apparatus should be set back from any Street facing façade of the building a minimum of twenty (20) feet and the footprint should be minimized and combined to the greatest extent practicable. b. Communications Equipment. Antennas, satellite dishes, and similar communications equipment and devices shall comply with the limitations of Section 26.575.130 — Wireless Telecommunication Services Facilities and Equipment. c. Elevator and Stair Enclosures. On structures other than a single-family or duplex residential building or an accessory building, elevator overrun enclosures and stair enclosures may extend up to five(5)feet above the specified maximum height limit. Elevator and stair enclosures may extend up to ten (10) feet above the specified maximum height limit if set back from any Street facing façade of the building a minimum of fifteen (15) twenty (20) feet and the footprint of the elevators or stair enclosures are minimized and combined to the greatest extent practicable. For single-family and duplex residential buildings and for accessory buildings, elevator and stair enclosures are not allowed a height exception. d. Rooftop Railings. On any structure other than a single-family or duplex residential building, rooftop railings and similar safety devices permitting rooftop access may extend up to five (5) feet above the height of the building at the point the railing connects. To qualify for this exception, the railing must be the minimum reasonably necessary to provide adequate safety and building code compliance and the railing must be 50%or more transparent. For single-family and duplex residential buildings, rooftop railings shall not be allowed a height exception. e. Mechanical Equipment. Heating, ventilation, and air conditioning systems, and similar mechanical equipment or utility apparatus located on top of a building may extend up to five(5) feet above height of the building at the point the equipment is attached. On structures other than a single-family or duplex residential building or an accessory building, all mechanical equipment should be set back from any Street facing façade of the building a minimum of twenty (20) feet. Mechanical equipment shall be combined and co-located to the greatest extent practicable. Section 4: Effect Upon Existing Litigation. 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 5: Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 6: Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty(30)days following final passage. Section 7: Notice of Public Hearing. A public hearing on this ordinance shall be held on the 2nd day of April, 2012, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, 130 S. Galena St., Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. FIRST READING OF THIS ORDINANCE WAS INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 26th day of March,2012. ATTEST: Kathryn S.Koch,City Clerk Michael C. Ireland,Mayor FINALLY, adopted, passed and approved this_day of ,20_ ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland,Mayor Approved as to form: James R True, City Attorney Exhibit A: Sec. 26.310.040. Standards of review for amendments to the land use code. In reviewing an amendment to the text of this Title, the City Council and the Planning and Zoning Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Finding: This proposed amendment updates the allowed heights and free-market residential FAR in the CC and C-1 zone districts. Updates to zoning are important to ensure the built environment reflects community character and is consistent with our historic development pattern. The proposed changes do not create a conflict with any other provision of the Land Use Code. Staff finds this criterion is met. ' B. Whether the proposed amendment furthers an adopted policy, community goal, or objective. Staff Finding: In conjunction with the adoption of the 2012 AACP, City Council has established a set of goals for implementation of that guiding document. Those include updating dimensional requirements in the CC and C-1 zone districts. The proposed amendments are consistent with the AACP, which calls for an examination of building heights, and includes a policy stating, "Establish lower maximum building heights to maintain Aspen's small town character." (Managing Growth for Community & Economic Sustainability Policy I.6) It also calls for an examination of commercial zone districts: "Ensure that the City Land Use Code results in (commercial) development that reflects our architectural heritage in terms of site coverage, mass, scale, density and a diversity of heights..." (Managing Growth for Community & Economic Sustainability Policy V.3) In addition, the AACP discusses the important of maintaining commercial uses in the commercial zones. Staff finds this criterion is met. C. Whether the proposed amendment would be in conflict with the public interest and whether it is in harmony with the purpose and intent of this Title. Staff Finding: Staff believes this amendment is consistent with the public interest and is in harmony with the purpose and intent of the Land Use Code. The zone district purpose statements speak to the primary use as commercial, with secondary residential and lodging uses. Staff finds that the amendments further this purpose. Staff finds this criterion is met. Exhibit A Page 1 of 1 etxhib rF B RESOLUTION No._ (Series of 2012) A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION, ASPEN,COLORADO,RECOMMENDING CITY COUNCIL ADOPT CODE AMENDMNETS RELATED TO THE HEIGHT AND FAR IN THE CC AND C-1 ZONE DISTRICTS: 26.710.140,COMMERCIAL CORE (CC)ZONE DISTRICT; 26.710.150, COMMERCIAL (C-1) ZONE DISTRICT WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City of Aspen City Council initiated amendments to the Land Use Code related to the allowed heights and free-market FAR in the CC and C-1 zone districts; 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 Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Sections 26.710.140, Commercial Core (CC)Zone District; 26.710.150, Commercial (C-1) Zone District; and, WHEREAS, during a duly noticed public hearing on March 20, 2012, the Planning and Zoning Commission recommended that City Council approve amendments to the text of Sections 26.710.140, Commercial Core (CC) Zone District; 26.710.150, Commercial (C-1) Zone District, as described herein, by a — L-i vote; and, WHEREAS, the Aspen Planning and Zoning Commission finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310; and, WHEREAS,the Aspen Planning and Zoning Commission finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF ASPEN,COLORADO THAT: Section 1: Maximum Heights The Planning and Zoning Commission recommends City Council approve an amendment to the Commercial Core (CC) and Commercial (C-1) zone districts to lower heights by four (4) feet to 36 — 38 feet in the CC zone district and to 32 — 34 feet in the C-1 zone district. Planning & Zoning Commission Reso # of 2012 CC and C-1 zone district amendments Page 1 of 2 Section 2: Minimum Floor to Floor Heights The Planning and Zoning Commission recommends City Council approve an amendment to the Commercial Core (CC) and Commercial (C-1) zone districts to incorporate minimum floor to floor heights as follows: o CC Zone: First Floor 13 feet to 15 feet, Upper Floors 10 feet o C-1 Zone: First Floor 11 feet to 13 feet, Upper Floors 10 feet Section 3: Free-Market Residential FAR The Planning and Zoning Commission recommends City Council approve an amendment to the Commercial Core (CC) and Commercial (C-1) zone districts to reduce the allowed amount of Free-Market Residential floor area from .75:1 to .5:1 in both zones, and only if equal amounts of Affordable Housing is provided on the same parcel. Section 4: Rooftop equipment The Planning and Zoning Commission recommends City Council approve an amendment to the Commercial Core (CC) and Commercial (C-1) zone districts increase the required setback for all roof-top equipment to 20 feet from any street-facing façade. FINALLY, adopted and approved by the Planning and Zoning Commission this _ day of ,2012. APPROVED AS TO FORM: PLANNING AND ZONING COMMISSION: James It True,City Attorney LJ Erspamer, P&Z Chairman ATTEST: Jackie Lothian,Deputy City Clerk Planning& Zoning Commission Reso #_of 2012 CC and C-1 zone district amendments Page 2 of 2 VCR asib MEMORANDUM TO: Mayor and Aspen City Council FROM: Amy Guthrie, Historic Preservation Officer THRU: Chris Bendon, Community Development Director n4 / RE: 514 East Hyman Avenue- Historic Landmark Designation and AspenModern negotiation for benefits, Second Reading of Ordinance #6, Series of 2012 DATE: March 26, 2012 (continued from March 12, 2012) SUMMARY: 514 E. Hyman Avenue is a non- landmarked building located in the Commercial Core Historic District. Though staff has always considered the building a valuable example of the work of local • architect Robin Molny, it was not included on previous .._.. _t lists of potential historic resources because the original brick façade has been obscured since the mid-90s by a - stone veneer that was installed in an effort to update the building. — - The property owner is interested in restoring to the L_ + original design and benefiting from the historic preservation incentives that Aspen has adopted. HPC reviewed the project on January 25th and granted Conceptual approval. They recommended that Council ` pursue a successful landmark negotiation for this - property, which is considered a "best" example of the Modernist style in Aspen. Except for the recent stone veneer, the building has not been greatly altered since construction. Subject property before 1990s remodel Council continued the application at Second Reading to allow more time for an adjacent property owner to become informed about the project. Councilman Skadron also asked for information about future ground floor uses in the building. APPLICANT: Mason and Morse, Inc., represented by Haas Land Planning and CCY Architects. PARCEL ID: 2737-182-13-002. ADDRESS: 514 E. Hyman Avenue,Lot N, Block 94, City and Townsite of Aspen. 514 East Hyman Avenue AspenModern Negotiation—Second Reading of Ordinance#6, Series of 2012 ZONING: CC, Commercial Core. Historic District Overlay. HISTORIC DESIGNATION §26.415. 030. C AspenModern 1. Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures as an example of AspenModem, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The quality of significance of properties shall be evaluated according to criteria described below. When designating a historic district, the majority of the contributing resources in the district must meet at least two of the criteria a-d, and criterion e described below: a. The property is related to an event, pattern, or trend that has made a contribution to local, state, regional or national history that is deemed important, and the specific event, pattern or trend is identified and documented in an adopted context paper; b. The property is related to people who have made a contribution to local, state, regional or national history that is deemed important, and the specific people are identified and documented in an adopted context paper; c. The property represents a physical design that embodies the distinctive characteristics of a type, period or method of construction, or represents the technical or aesthetic achievements of a recognized designer, craftsman, or design philosophy that is deemed important and the specific physical design, designer, or philosophy is documented in an adopted context paper; d. The property possesses such singular significance to the City, as documented by the opinions of persons educated or experienced in the fields of history, architecture, landscape architecture, archaeology or a related field, that the property's potential demolition or major alteration would substantially diminish the character and sense of place in the city as perceived by members of the community, and e. The property or district possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association, given its age. The City Council shall adopt and make available to the public score sheets and other devices which shall be used by the Council and Historic Preservation Commission to apply this criterion. Staff Response: The subject building was constructed in 1971, designed by Frank Lloyd Wright trained architect Robin Molny, who passed away in 1997. During its early development as a ski area, Aspen attracted a variety of highly trained architects whose Modernist buildings help to define the character of downtown today. There is a concentration of Modernist buildings particularly along three blocks of East Hyman Avenue, 514 East Hyman Avenue AspenModem Negotiation—Second Reading of Ordinance#6, Series of 2012 including the subject building, the Benton Studio, commercial structures by Fritz Benedict and Ellie Brickham, the Crandall Building, and the Aspen Athletic Club. Robin Molny trained at Taliesen under Frank Lloyd Wright for five years and in the 1950s was selected by Wright to supervise the Greenberg Residence in Dousman, Wisconsin. Subsequently, Molny moved to Aspen, worked for Fritz Benedict, and opened his own architecture firm. The Hearthstone House (started in 1963) by Molny is already landmark designated. Additional significant work by him includes the downtown pedestrian malls (1973) and the Aspen Athletic Club (720 East Hyman, 1976). The HPC awarded Molny two Welton Anderson Preservation Honor Awards; in 1995 for the pedestrian malls and again in 1997 for significant architectural contributions to Aspen. Robin Molny is profiled in the City's Modernism historic context paper. Molny's original drawings are available to guide the proposed restoration of the façade. Even with the current condition of the building, staff has scored the property 16 points using our integrity scoring system, which falls into the category of"best". The proposed restoration would increase the integrity score to a perfect 20 points. Though the veneer that was applied to the building greatly confused its architectural character, very little else was changed. Staff finds that designation criteria A, C, and E are met. Staff strongly feels that the preservation of this building is important to Aspen's post war legacy. AsIltN:Mom RN NNttcoI ISful.N §26.415.025.C.1.c. The Community Development Director shall confer with the City Council regarding the proposed land use application or building permit, the nature of the property, and the staff and Historic Preservation Commission's assessment of its historic significance and the effects of the application or building permit. The property owner shall be provided notice of this meeting. The City Council may negotiate directly with the property owner or may choose to direct the Community Development Director, or other City staff as necessary, to negotiate with the property owner to reach a mutually acceptable agreement for the designation of the property. The City Council may choose to provide this direction in Executive Session, pursuant to State Statute. As part of the mutually acceptable agreement, the City Council may, at its sole discretion, approve any land use entitlement or fee waiver permitted by the Municipal Code and may award any approval that is assigned to another Board or Commission, including variations. Council shall consider the appropriateness of benefits in light of whether the property is identified as a "good, better, or best" example of Aspen's 20th century history and shall also seek to be equitable in the benefits awarded through the negotiation process. The monetary value of benefits being requested shall be defined, to the extent possible. Council shall seek compatibility with the neighborhood surrounding the subject property. 514 East Hyman Avenue AspenModem Negotiation—Second Reading of Ordinance#6, Series of 2012 • initially asked for up to 10 years to allow for the start date of the project to be more flexible. This has since been reduced to a five year proposal. HPC did not support a 10 year time period, but did not specify a lesser amount. The negotiated benefits are policy matters for Council to decide. The Land Use Code states that, as a further measure of the value of negotiation, Staff and HPC should evaluate whether the proposal meets the Purpose and Intent Statements of the Historic Preservation program, which are: §26.415.010. Purpose and intent. The purpose of this Chapter is to promote the public health, safety and welfare through the protection, enhancement and preservation of those properties, areas and sites, which represent the distinctive elements of Aspen's cultural, educational, social, economic, political and architectural history. Under the authority provided by the Home Rule Charter of the City and Section 29-20-104(c), C.R.S., to regulate land use and preserve areas of historical, architectural, archaeological, engineering and cultural importance, this Chapter sets forth the procedures to: A. Recognize, protect and promote the retention and continued utility of the historic buildings and districts in the City; B. Promote awareness and appreciation of Aspen's unique heritage; C. Ensure the preservation of Aspen's character as an historic mining town, early ski resort and cultural center; D. Retain the historic, architectural and cultural resource attractions that support tourism and the economic welfare of the community; and E. Encourage sustainable reuse of historic structures. F. Encourage voluntary efforts to increase public information, interaction or access to historic building interiors. The City does not intend by the historic preservation program to preserve every old building, but instead to draw a reasonable balance between private property rights and the public interest in preserving the City's cultural, historic, and architectural heritage. This should be accomplished by ensuring that demolition of buildings and structures important to that heritage are carefully weighed with other alternatives. Alterations to historically significant buildings and new construction in historic areas shall respect the character of each such setting, not by imitating surrounding structures, but by being compatible with them as defined in historic preservation guidelines. Staff and HPC believe that this proposal meets statements A-D from the Purpose and Intent of the Historic Preservation program. The property is in the downtown historic district: Aspen'sefrrst district and one of the earliest in the State of Colorado. The historic district is the image of the town to many residents and 514 East Hyman Avenue AspenModern Negotiation—Second Reading of Ordinance#6, Series of 2012 visitors and provides a unique identity to the resort. About 50% of the structures in Aspen's downtown core are Victorian era. Buildings like the subject property are among the relatively few remaining places that clearly represent the town's character in the 1960s and 70s, when explosive development pressure caused many citizens to actively defend and attempt to preserve Aspen's small town character and individualism. Staff respects the applicant's efforts to identify the minimum preservation benefits that will support this specific preservation and development effort. The negotiation process creates the opportunity for the City to incentivize a level of high quality restoration and preservation that might not otherwise be possible. RECOMMENDATION: Staff recommends that Council support this request for voluntary Landmark Designation and negotiated benefits. PROPOSED MOTION: "I move to adopt Ordinance#6, Series of 2012." CITY MANAGER COMMENTS: Attachments: Ordinance#6, Series of 2012 Exhibit A: Integrity Score Sheet Exhibit B: HPC Resolution Exhibit C: Application Exhibit D: Modernism Context Paper (distributed previously. Please visit www.aspenpitkin.com to review.) 514 East Hyman Avenue AspenModern Negotiation—Second Reading of Ordinance#6, Series of 2012 a ORDINANCE#6 (Series of 2012) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING HISTORIC LANDMARK DESIGNATION AND BENEFITS THROUGH THE ASPENMODERN PROGRAM FOR THE PROPERTIES LOCATED AT-514 E. HYMAN AVENUE,LOT N, BLOCK 94, CITY AND TOWNSITE OF ASPEN, COLORADO PARCEL ID NUMBER: 2737-182-13-002 WHEREAS, the applicant, Mason and Morse, Inc., represented by Haas Land Planning and CCY Architects, submitted an application on November 29, 2011, pursuant to Section 26.415.025(C), AspenModern Properties, of the Aspen Municipal Code, to voluntarily participate in the AspenModern ninety-day negotiation period for the properties located at 514 E. Hyman Avenue,Lot N, Block 94, City and Townsite of Aspen; and WHEREAS, pursuant to §26.415.025.C(1), the ninety-day AspenModern negotiation commenced on November 29, 2011; and WHEREAS, §26.415.025.C(1)(b) states that, during the negotiation period, "the Community Development Director shall confer with the Historic Preservation Commission, during a public meeting, regarding the proposed building permit and the nature of the property. The property owner shall be provided notice of this meeting;" and WHEREAS, the property owners' representative met with the Historic Preservation Commission(the HPC) on January 25, 2012; and WHEREAS, at their regular meeting on January 25, 2012, the HPC considered the application; found that 514 E. Hyman Avenue is a"best" example of the Modern style in Aspen evaluated the designation and proposed development; and, found that the policy objectives for the historic preservation program stated at §26.415.010, Purpose and Intent are met, and recommended City Council ("Council") approval of Historic Landmark Designation; and WHEREAS, §26.415.025.C(1)(d), states that, during the negotiation period, "council may negotiate directly with the property owner or may choose to direct the Community Development Director, or other City staff as necessary, to negotiate with the property owner to reach a mutually acceptable agreement for the designation of the property"; and WHEREAS, §26.415.025.C(1)d establishes that "as part of the mutually acceptable agreement, the City Council may, at its sole discretion, approve any land use entitlement or fee waiver permitted by the Municipal Code and may award any approval that is assigned to another Board or Commission, including variations;"and 514 E. Hyman Avenue Ordinance#6, Series of 2012 Page 1 of 4 WHEREAS, in addition to Historic Landmark Designation and benefits available to all Landmarked properties subject to the Aspen Municipal Code, the applicant has identified preservation incentives that are requested as part of the AspenModern negotiation process. Those incentives include: 1. Removal and rendering null and void the 1980 Basement Restriction Agreement in favor of underlying zoning compliance; 2. An allowable Free-Market Residential FAR of 0.88:1 (as compared to the 0.5:1 allowed by right); and 3. Ten (10)years of vested property rights. WHEREAS, the Community Development Department performed an analysis of the application for Landmark Designation and found that the review standards are met. The staff report analyzed the proposed preservation incentives and monetary value of the benefits where possible; and WHEREAS, the City Council finds that the proposal meets or exceeds all applicable development standards and that the approval of the development proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS,the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN,COLORADO,AS FOLLOWS: Section 1: Historic Landmark Designation Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves Historic Designation for 514 E. Hyman Avenue, Lot N, Block 94, City and Townsite of Aspen subject to the conditions described herein. Upon the effective date of this ordinance, the City Clerk shall record with the real estate records of the Clerk and Recorder of the County, a certified copy of this ordinance. The location of the historic landmark property designated by this ordinance shall be indicated on the official maps of the City that are maintained by the Community Development Department. Section 2: Aspen Modern Negotiation Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves removal and rendering null and void the 1980 Basement Restriction Agreement in favor of underlying zoning compliance, and an allowable Free-Market Residential FAR of 0.88:1 (as compared to the 0.5:1 allowed by right). Section 3: Vested Rights The development approvals granted herein shall constitute a site-specific development plan and a vested property right attaching to and running with the Subject Property and shall confer upon the 514 E. Hyman Avenue Ordinance#6, Series of 2012 Page 2 of 4 Applicant the right to undertake and complete the site specific development plan and use of said property under the terms and conditions of the site specific development plan including any approved amendments thereto. The vesting period of these vested property rights shall be for five (5) years which shall not begin to run until the date of the publications required to be made as set forth below. However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 180 days of the effective date of the development order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of§ 26.104.050, Void Permits. Zoning that is not part of the approved site-specific development plan shall not result in the creation of a vested property right. No later than fourteen (14) days following final approval of this Ordinance, the City Clerk shall cause to be published in a newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to Chapter 26.308, Vested Property Rights. Pursuant to § 26.304.070(A), Development Orders, such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a site specific development plan, and the creation of a vested property right, valid for a period of five (5) years, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: 514 E. Hyman Avenue,Lot N, Block 94, City and Townsite of Aspen. Nothing in this approval shall exempt the Development Order from subsequent reviews and approvals required by this Ordinance of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with this Ordinance. The vested rights granted hereby shall be subject to all rights of referendum and judicial review. The period of time permitted by law to exercise the right of referendum to refer to the electorate this Section of this Ordinance granting vested rights; or, to seek judicial review of the grant of vested rights shall not begin to run until the date of publication of the notice of final development approval as set forth above. The rights of referendum described herein shall be no greater than those set forth in the Colorado Constitution and the Aspen Home Rule Charter. Section 4: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Historic Preservation Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. 514 E. Hyman Avenue Ordinance #6, Series of 2012 Page 3 of 4 Section 5: 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 6: 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. The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this ordinance in the office of the Pitkin County Clerk and Recorder. Section 7: A public hearing on this ordinance shall be held on the 12th day of March, 2012, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 13th day of February, 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY,adopted, passed and approved this_day of , 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk APPROVED AS TO FORM: James R. True, City Attorney 514,E. Hyman Avenue Ordinance#6, Series of 2012 Page 4 of 4 tloi / C ! m - O N (6 Q O 0 CO ( ) _c a) o o) - O)o x- -O .c� cc6 `p CO� CO C L@ o c c a N O N (� Q L• -- - r O w --' u) C w .. (n. E -� 0 0 .-' CO O o c 0 Y D O Q 'L O O N L w C0 O > CO C O a ° c m E m o ca ca (9 O Cr O >, O c N C c E U (B O U (6 N o o co O 2 `o U O O c6 c O E o ui O co a) D v 5 (a C c �, c i (6 O T '- O O (1) O C° r- c ue (Un o E E C CTS o o E ° > > o L E m y c o a o E E = N O U) ^\ .-. c .� c Q °m in - o CO Q c _ N i - N 4,---' c o o o > Ni ,,,„w c ° O . U O w p o - 0) c 03 s- m O o c E ° a U C Q. (6 Q ca 0_N a r c )c - a a N a m o OD o c -0 _, 2 .> co O .-' o - ' o ..' CO W co -E E c J O > D O < o a -c O CO � O Q . a 46 U i O m X O C O N U r OJ (6 (6 O 6i =. a) .=.. N r C O4 © © © © © II II - _ _ m W 0 f N CD (b °' E CD a— CO 1-4- (C4 (D U N c E O :f o, 0 (Cp N O co N -C O +aw,,,s` 1. , Ta O 6 N Y — U U 7 V J c O a) C c a t 06 .0 >� O U UN [6 0 0 C p a 3' . L 0 o o c o _o 2 U > m E 2 = - N E m m U i l -g N nail 6 E n CO c N 0 2 .- m N N U) icl E N m a m 0 > L P - 0 N a '� 0) O D u) N U N N (0 u) L Ic) (6 C _6 o Q o Q a a c @ C 6 O E O U g O @ N l� Q W ` O Q6 N O E 2 a a .d_ .e> v- N � 2 C (6 N (6 o (, 4 (N C) N V LO u) o) LOU) r N c W L N . i X U !-I= w _C) Llt,a ; r ° L U N � ° _c as a INTEGRITY SCORING If a statement is true, circle the number of points associated with that true statement. LOCATION OF BUILDING ON THE LOT: The building is in its original location. 2 points The building has been shifted on the original parcel, but maintains its original 1 point alignment and/or proximity to the street. SETTING: The property is located within the geographical area surrounded by Castle 1 point Creek, the Roaring Fork River and Aspen Mountain. The property is outside of the geographical area surround by Castle Creek, the 1/2 point Raoring Fork River and Aspen Mountain. DESIGN: The form of the building (footprint, roof and wall planes) are unaltered from 3 points the original design. a.) The form of the building has been altered but less than 25% of the original walls have been removed, OR b.) The alterations to the form all occur at the rear of the subject building, OR 2 points c.) The form of the building has been altered but the addition is less than 50% of the size of the original building, OR d.) There is a roof top addition that is less than 50% of the footprint of the roof. MATERIALS Exterior materials The original exterior materials of the building are still in place, with the 2 points exception of normal maintenance and repairs. 50% of the exterior materials have been replaced, but the replacements poin match the original condition. Windows and doors The original windows and doors of the building are still in place, with the points exception of normal maintenance and repairs. 50% of the original windows and doors have been replaced, but the 1 point replacements match the original condition. Best: 15 up to 20 points Integrity Score (this page) maximum of 10 points: 0 Better: 12 up to 15 points Character Defining Features Score (first page) maxi- Good: 10 up to 12 points mum of 10 points: Not Eligible:0 up to 10 points HISTORIC ASSESSMENT SCORE: I A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION RECOMMENDING THE ASPEN CITY COUNCIL APPROVE HISTORIC LANDMARK DESIGNATION OF THE PROPERTY LOCATED AT 514 E. HYMAN AVENUE,LOT N,BLOCK 94,CITY AND TOWNSITE OF ASPEN, COLORADO THROUGH THE ASPENMODERN PROGRAM,AND APPROVING CONCEPTUAL MAJOR DEVELOPMENT AND COMMERCIAL DESIGN STANDARDS REVIEW RESOLUTION#3,SERIES OF 2012 PARCEL ID: 2737-182-13-002 WHEREAS, the applicant, Mason and Morse, Inc., represented by Haas Land Planning and CCY Architects, submitted a letter dated November 29, 2011 requesting that the property located at 514 E. Hyman Avenue, Lot N, Block 94, City and Townsite of Aspen be considered for voluntary historic designation in exchange for specific benefits through the AspenModem negotiation; and WHEREAS,the 90 day AspenModem negotiation commenced on November 29,2011; and WHEREAS, the property is located within the designated boundaries of the Commercial Core Historic District as described in City Council Ordinance number 49, Series of 1974; and WHEREAS, the applicant also requested HPC Major Development (Conceptual) and Commercial Design Review(Conceptual)approval; and WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structure shall be erected, constructed, enlarged, altered, repaired, relocated or improved involving a designated historic property or district until plans or sufficient information have been submitted to the Community Development Director and approved in accordance with the procedures established for their review;" and WHEREAS, for Conceptual Major Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project's conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, for Conceptual Commercial Design 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 Commercial, Lodging, and Historic District Objectives and Guidelines per Section 26.412.040 of the Municipal Code. 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 RECEPTION#: 586585,02/09/2012 at 10:06:12 AM, 1 OF 3, R $21.00 Doc Code RESOLUTION 514 E.Hyman Avenue-AspenModem Janiee K.Vos Caudill, Pitkin County, CO HPC Resolution 43,Series of 2012 WHEREAS, Amy Guthrie, in her staff report to HPC dated January 25, 2012, performed an analysis of the application based on the standards, found that the review standards had been met, determined that the property meets the criteria for designation and the integrity score qualifies as the "best" category of historic resources, and recommended approval of the project with conditions; and WHEREAS, at their regular meeting on January 25, 2012, the Historic Preservation Commission considered the application during a duly noticed public hearing, the staff memo and recommendation, and public comments, and found the building to be consistent with the designation criteria by a vote of 4 to 1. NOW,THEREFORE,BE IT RESOLVED: That HPC hereby finds that the property located at 514 E. Hyman Avenue,Lot N, Block 94, City and Townsite of Aspen, meets the designation criteria of Land Use Code Section 26.415.030.C.1 and Land Use Code Section 26.415.010 Purpose and Intent, and recommends Aspen City Council negotiate for landmark designation. HPC finds that 514 E. Hyman Avenue is a "best" example of the Modem architecture. HPC hereby grants HPC Major Development (Conceptual) and Commercial Design Review (Conceptual) approval. These recommendations and approvals are granted with the following conditions: 1. A height variation to 40' is granted for the new addition. 2. The applicant shall provide additional explanation of how proper trash/utility/service area is accommodated. 3. HPC supports the negotiation request for removal of a previously established restriction on the use of basement space in the building. 4. HPC does not support the negotiation request for 10 years of vested rights. 5. HPC recommends the FAR of the residential unit be reduced from the amount requested through negotiation. 6. A development application for a Final Development Plan shall be submitted within one (1) year of the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant a one-time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. APPROVED BY THE COMMISSION at its regular meeting on the 25th day of January, 2012. A-7 Ann Ann Mullins,Chair 514 E.Hyman Avenue—AspenModern HPC Resolution#3,Series of 2012 Approved as to Form: im True,Special Counsel ATTEST: -L // . Kathy Stri and,Chief Deputy Clerk 514 E.Hyman Avenue—AspenModern HPC Resolution#3,Series of 2012 n rn co HAAS LAND PLANNING, LL.0 .n 201 N.MILL STREET, SUITE 108-ASPEN, CO 81611 -(970) 9257819- r(/i o MHAAS @SOPRIS.NET 0 m N fin T0: Historic Preservation Them Amy Guthrie Date: November 29, 201'r Commission(HPC) & City Council Subject. MasonMorse Building Designation Negotiation under AspenModern 514 East Hyman Avenue Section I: Introduction The MasonMorse Building at 514 East Hyman Avenue was formerly known as the Gargoyle Building. Although unfortunately obscured today, the original Robin Molny architecture of this 1971 building is actually very much intact and capable of being restored. This application proposes restoration of Molny's original design along with assurances as to its preservation through AspenModern Landmark Designation in association with certain land use entitlements. AspenModern is a program adopted by the City of Aspen to address, through negotiation of incentives for designation, the negative impacts that the loss of landmark eligible buildings would have on the health, peace, safety, and general well being of the residents and visitors of Aspen, and the diminishment of Aspen's unique architectural character, livability, and attractiveness as a destination. The applicant, Mason and Morse, Inc., intends to complete the restoration and remodel of their building along with the addition of a third floor free-market residence set fifteen (15) feet back from the historic facade. The applicant is interested in having the building added to the Inventory of Historic Landmark Sites and Structures provided that the submitted plans for the restoration, remodel and addition are concurrently approved. Therefore, this application seeks Landmark Designation with HPC Conceptual Commercial Design Review and Major Development approvals. Upon completion of these entitlements, it is hereby requested that the CDD grant all necessary administrative Growth Management approvals pursuant to Code Section 26.470.060(4), Minor Enlargement of an Historic Landmark for Commercial, Lodge or Mixed-Use Development. This application is submitted pursuant to the following sections of the Aspen Land Use Code (the Code): 26.304, Common Development Review Procedures, including 26.304.060(B)(1), Combined Reviews; 26.415.025(C), AspenModern Properties; 26.415.030(C), Designation of Historic Properties - AspenModem; 26.415.070(D), Certificate of Appropriateness for Major Development; MasonMorse AspenModem Application(PID 2737-182-13-002) Page 1 26.470.060(4), Minor Enlargement of an Historic Landmark; and 26.710.140, Commercial Core Zone District(CC). The application is divided into five sections. Section I provides a brief introduction to the application, while Section II describes the existing conditions of the project site and environs. Section III outlines the applicant's proposed development, and Section IV addresses the proposed development's compliance with the applicable review criteria of the Code. A short summary is provided in Section V. For the reviewer's convenience, all pertinent supporting documents relating to the project are provided in the various exhibits to the application, as follows: • Exhibit 1: Land Use Application and Dimensional Requirements Forms; • Exhibit 2: Pre-Application Conference Summary prepared by Amy Guthrie; • Exhibit 3: Proof of the Applicants' Ownership; • Exhibit 4: Authorization for Haas Land Planning, LLC (HLP) and Cottle Carr Yaw Architects (CCY) to represent the applicant • Exhibit 5: August 29, 1980, Agreement and Associated Basement Level Plans; • Exhibit 6: An executed application fee agreement;and, . • Exhibit 7: Mailing addresses of record for all property owners located within three-hundred feet of the subject property. In addition, a full set of architectural plans prepared by CCY accompany this application and include: • A Cover Sheet, an Improvement Survey, a Site Plan, and the Plaza Plan and Plaza Illustrative Plan; • Lower, Main,Mezzanine and Upper Level Floor Plans, and the Roof Plan; • Existing Conditions South Elevations; • Photo of Historic Molny South Elevation and Original Molny South Elevation Drawing; • Comparative Existing and Proposed South Elevation Drawings in Hyman Avenue Context; • South Elevation Studies: Existing,Original and Proposed; • West Elevation Drawings: Proposed and Molny Drawings; • North Elevation Studies: Proposed and Molny Drawings; • Section Drawing Studies: Proposed and Molny Drawings; and • Existing and Proposed Renderings in Context. While the applicant has attempted to address all relevant provisions of the Code, and to provide sufficient information to enable a thorough evaluation of the application, questions may arise which require further information and/or clarification. Upon request, the applicant's representative will provide such additional information as may be required in the course of the review. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 2 Section II: The Project Site (Existing Conditions) The building at 514 East Hyman Avenue was built in 1971 and was designed by Robin Molny, an architect whose work is considered to be representative of the Modernist Movement of 20th century architecture in Aspen. It is a 2-story, commercial building on a 3,000 square foot lot, situated on East Hyman Avenue between Galena and Hunter Streets. The subject property is legally described as Lot N, Block 94, City and Townsite of Aspen, its Parcel Identification Number is 2737-182-13-002, and it is owned by Mason and Morse, Inc. (the applicant). The Vicinity Map below shows the property's general location relative to the surrounding area. ° Al 11 E. - : ,, � -"------..r,`° . l.,it �`-- C al r t/ Aspen \g a 1LKuna.tlr';_', g�aa lr� _ I l � a g "—.` ----_,11 --/y_, !� `j If i re I , .. r r m i k�/ I � iamq)j E ,e _ pan .11, If J f - . . - I;fi , ymn 1� eJ.-� i(j l (E - 4, -.-7,.._•'----,_____I d E.e Way � x -�4ie.gh al HY ( . l , -- s, " r D Ep/ J. in�- I i f E ` P _ tr E a, j&r q� m�l yI q t (r ,' 'a, '> �'! '7/-7=-� t LE.„-,-„„,isT /,� � �� c�wE /- Ew sn I y��& ��1\'c mapquest -,m �� 01011NyWet Torn...enii HrvttG Vicinity Map—514 East Hyman Ave The building was remodeled in 1990. The remodel obscured Molny's original design and changed the front facade of the building but left the underlying structure and materials largely intact. For instance, the original brick is still in place beneath the current sandstone facade. The building maintains its original setback from the front property line on Hyman Avenue, but an awkward entry plaza with planter boxes has been installed immediately adjacent to the public amenity space associated with the Elks Building next door. The existing structure is a single-use commercial building occupied only by the MasonMorse real estate offices. The building has a basement level, a ground floor, and a mezzanine/second floor. The ground floor and the mezzanine level MasonMorse AspenModern Application(PID 2737-182-13-002) Page 3 are occupied by the real estate offices and support areas only, with circulations areas as needed. As the plans accompanying Exhibit 5 of this application indicate, the basement level occupies the entire 3,000 square foot lot but its north end and southeast corner are limited to storage uses per an August 29, 1980 Agreement(see Exhibit 5) which specified that, "To adhere to the floor area ratio as required by the City of Aspen building code and as a consideration of the remodel of the premises, Mason & Morse, Inc., and its President hereby agree not to occupy for any or all purposes the voided areas lying to the North of and South of the Conference Room as shown on the plans filed in the Building Inspectors Office." The plans alluded to do not appear to remain on file with the Building Inspector's Office but the two plans accompanying Exhibit 5 are the most relevant plans available from said file. Although the cited and provided Agreement is written as being between Mason and Morse, Inc., and the City of Aspen, the Agreement is not executed by the City nor is it a document of record with the Pitkin County Clerk and Recorder. Moreover, the terms of the Agreement have been rendered moot by the City's adoption of amended dimensional standards for the Commercial Core (CC) Zone District, specifically those addressing allowable Floor Area. Not only does the existing building fit within the allowable cumulative (2.75:1) and commercial (2:1) Floor Area limits for the current CC zoning, but the current Code exempts 100% of the existing basement space in the MasonMorse Building from Floor Area calculations and measurements. Therefore, whether used for storage or otherwise, the "voided areas" have no affect on the building's ability to adhere to current floor area ratio restrictions. With regard to the exterior, the existing building is setback from the street behind an awkward and somewhat dysfunctional outdoor plaza area containing several planter boxes that leak. The layout of the plaza precludes ADA compliance due to stairs skewed at angles counter to the street and sidewalks and a lack of ramps. The current plaza is not consistent with the original Molny design. The alterations to the building from its original design are largely cosmetic but include an added sandstone veneer, an added decorative post below the second floor deck (not structural/supportive), removal of original awnings and the addition of awnings in different locations, and changes to the façade roofline mainly in the form of an added parapet and pediment. From ground to the top of the pediment form, the building measures thirty-eight (38) feet in height on its front façade. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 41 Section III: The Proposal In exchange for Landmark Designation and the restoration and preservation of this Robin Molny designed building in Aspen's Commercial Core, the applicant is seeking the very modest benefits listed below. However, if Landmark Designation would preclude approval of the proposed addition, then the applicant prefers to not so restore and designate the property/structure. The proposal is fully depicted on the accompanying CCY Plan Set It envisions maintaining the overall appearance of the existing building, restoring the front facade to its original appearance, renovating the entry plaza, and adding a set- back third floor addition to the building for a free-market residence. The addition will have very little visual impact as it will be set back fifteen (15) feet from the front facade, restoring the building's historic appearance from Hyman Avenue. The new construction will have a more contemporary loft style that is clearly a product of its own time, while maintaining consistency with the historic portion of the building through the inclusion of complimentary solid to void patterning and window forms. While a third floor will be added, its fifteen foot setback coupled with removal of the existing parapet and pediment will result in a front facade with approximately 4'-91/2' less height than exists today. There were certain changes made to the front facade of the building when it was renovated in the 1990s. The alterations to the building from its original design are largely cosmetic but include an added sandstone veneer, an added decorative post below the second floor deck (not structural/supportive), removal of original awnings and the addition of awnings in different locations, and changes to the facade roofline mainly in the form of an added parapet and pediment. All of these non-historic elements will be removed as part of the restoration effort. As mentioned above, the entry plaza will also be renovated to compliment the adjacent Elks plaza and provide for ADA compliance. As part of the remodel, the applicant will remove all planter boxes incorporated into the existing entry plaza design as these leak and were not part of the original Molny design. The current alignment of planter boxes and staircases run contrary to the direction of the adjacent sidewalks and associated pedestrian movements, resulting in awkward and uninviting spaces. The plaza layout will be redesigned to be much simpler, and will include ADA accessibility provisions. This remodeled public-private space will function well while providing an inviting dwell space that enhances the overall pedestrian experience. All of the above-described changes are illustrated on the accompanying plan set The Perspective Renderings,as compared with the Existing Conditions Renderings, provide the most telling illustrations. Also of note is Sheet A4.2.2,which shows the MasonMorse AspenModem Application(PID 2737-182-13-002) Page 5 existing massing shadowed over the proposed massing. The integrity of the original design will be fully restored and, once designated, will maintain a scale that both compliments and enhances the surrounding context. Along with the fifteen foot front setback (from the street-facing facade), the third floor addition is inset from the original side walls of the building. As the plans, elevations and renderings illustrate,the proposed third floor walls are set inside the face of the walls of the ground and second floors, resulting in a clear demarcation between the old and the new, subordinate form. An elevator is required to serve the remodeled building and this,in turn,requires a five foot elevator overrun at the roof. To accommodate this requirement in the most sensitive possible way, the • resulting form has been positioned near the center of the building, more than twelve (12) feet from the west facade, over nine (9) feet from the east façade, and nearly forty-three (43) feet back from the building's front façade (see Roof Plan, Sheet A3.5). While the elevation drawings necessarily depict these improvements in unflattering one-dimension, the reality is more accurately reflected by its complete lack of visibility in the rendered perspective drawings (Sheets A6.1 and A6.2). The third floor addition has been designed to complement the Molny architecture through consistency of shadow lines, solid to void ratios, and fenestration patterns. To enhance these means of achieving consistency while injecting a clear but compatible differentiation, vertical siding will be used on the new elements at the third floor as well as on the west (at the parking/service area between the subject property and the Elks Building) and north (facing the alley) facades. New windows will be added approximately two-thirds of the way back on the second floor of the west elevation to enable penetration of natural light into the office spaces. These windows will be non-operable and of structural,fire-rated glass due to their location on the property line. Rather than three separate punched openings, a feature Molny likely never would have incorporated on this building, the new windows are to be set in a band of vertical siding to give the effect of a consistent solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front facade. This design detail is repeated at the alley-facing façade, where the currently blank and lifeless CMU wall will receive enhanced interest as well as significantly improved functionality (i.e., entrance will be covered/inset and its level will be made to match the grade of the alley). Section 26.415.025(C) of the Code explains that sites associated with Aspen's 20th century history, such as the 514 East Hyman Avenue site of the MasonMorse Building, are called AspenModem properties. Although this property is not specifically identified on the AspenModem Map, subsection 5 of the above-cited Code Section states that owners of properties not included on the Aspen Modern MasonMorse AspenModern Application(PID 2737-182-13-002) Page 61 Map may apply to the Community Development Director to be added to the map by submitting a written request. The Community Development Director then determines if the property is eligible, based on the designation criteria. Given that the Community Development Department (see Pre-Application Conference Summary, Exhibit 2) has encouraged this application and the HPC has done the same (in work session), the restoration of the Molny design and the addition of this property to the AspenModern program, should be deemed not only eligible but appropriate. Pursuant to Code Section 26.415.025(C)(1), the submittal of this application initiates a negotiation period of up to ninety days, which may be extended an additional thirty days upon resolution adopted by City Council, or longer if mutually acceptable to both the Council and the applicant. The City Council or the applicant may choose to terminate the negotiations at any time. The goal of the negotiation period is to reach a mutually acceptable agreement for the landmark designation of the property. As part of the mutually acceptable agreement, the City Council may, at its sole discretion, approve any land use entitlements or fee waiver permitted by the Municipal Code and may award any approval that is normally assigned to another Board or Commission, including variations. Council's charge includes seeking compatibility with the neighborhood surrounding the subject property and weighing the benefits in light of whether the property is identified by the HPC as a "good, better, or best" example of Aspen's 20th century history. During the HPC work session that was held regarding this property, the applicant was asked to make certain changes to the proposal including increasing the setback of the third-floor addition, including more 1970s architectural dialogue on the addition, and keeping the addition simple and compatible with the historic elements of the original building. The HPC also made it clear that the redesign of the plaza area was very important and should be tied in with the adjacent Elks Plaza in order to create a better public amenity space. All of the comments made by the members of the HPC have been taken into consideration and have been accommodated in what is now proposed. In exchange for the voluntary historic preservation of the MasonMorse Building, the modest benefits sought by the applicant include only the following: 1. Removal and rendering null and void the 1980 Basement Restriction Agreement in favor of simple zoning compliance; 2. An allowable Free-Market Residential FAR of 0.88:1 (as opposed to the 0.5:1 allowed by right); and 3. Ten(10)years of vested property rights. MasonMorse AspenModem Application(PID 2737-182-13-002) Pagel As explained above, in the Existing Conditions section of this application, the Basement Restriction Agreement is already antiquated and of no real meaning under current codes. The elimination of the "Agreement," which is neither mutually executed nor of record, amounts to more of a"cleaning up" item than a true incentive for preservation since its effect is arguable not only because it is not a document/restriction of record but also because none of the building's basement area impacts floor are ratio limits to begin with. The proposal does not entail significant variances from the CC zoning. While additional free-market residential floor area is requested, the cumulative floor area of the proposal is less than 70% of that allowed under the CC zone district limitations (approximately 5,770sf where 8,250sf are allowed). Similarly, while the CC zone district allows a maximum free market dwelling unit size of 2,000 net livable square feet, the proposed unit contains only 1,917 square feet of net livable area; the remaining free market residential floor area is contained in walls and non-unit space (i.e., percentages of common areas such as circulation ways and ingress/egress stairs). The increased free-market residential FAR requested in this application is the primary catalyst for the restoration of this Robin Molny building. Without approval of this incentive request, the restoration work will not be feasible. Also consistent with the zoning requirements, the above-grade commercial floor area significantly exceeds the net livable residential square footage without even accounting for the nearly 3,000 square feet of subgrade commercial space. The public amenity space will remain the same in area albeit in a substantially more appealing and functional form/design. The front façade's two-story building height will be decreased and fall below the twenty-eight foot zoning limit for this area, while the third floor building height of forty feet falls below the forty-two foot limit allowed through Commercial Design Review. The need for an extended period of vested property rights associated with the site specific development plan approved pursuant to this application is largely an unfortunate effect of today's market conditions. While the applicant would be immediately and permanently committed to landmark designation and the restoration plans included herewith, outside market and finance realities may affect the applicant's ability to timely use the approvals and incentives granted in association with these commitments. Furthermore, other voluntary designation projects that have come before the HPC and City Council have been granted extended vested rights. Furthermore, other voluntary designation projects that have come before the HPC and City Council have been granted extended vested rights. It is felt that the incentive of an extended opportunity to rely on and use such approvals is a minor consideration in exchange for the immediate and MasonMorse AspenModem Application(PID 2737-182-13-002) Page 8 permanent benefits to be realized by the City through the AspenModern Landmark designation of the subject property, a designation that will never expire. Overall, the applicant is asking for very little in the way of incentives while providing many community benefits as a result of the exceptionally sensitive restoration effort, including but not necessarily limited to returning the building to its original design by removing non-historic features and materials, permanently landmark designating and preserving the Molny structure, making the building ADA compliant, and accommodating the changes to the third-floor addition and the plaza as requested during the HPC work session. Once landmark designated, the mass and scale of the building will be established in a manner that both compliments and enhances the surrounding context The restored building and renovated plaza will enhance the pedestrian experience and the streetscape as a whole for future generations of Aspenites and visitors alike. Section IV: Review Requirements In light of the foregoing, this application is submitted pursuant to the following sections of the Aspen Land Use Code (the Code): 26.304, Common Development Review Procedures, including 26.304.060(B)(1), Combined Reviews; 26.310.040, Standards for Review - Rezoning; 26.415.025(C), AspenModern Properties; 26.415.030(C), Designation of Historic Properties - AspenModem; 26.415.070(D), Certificate of Appropriateness for Major Development; and 26.710.140, Commercial Core (CC) Zone District The applicable provisions are addressed below. A. Designation of AspenModern Properties The designation of AspenModern properties to the Aspen Inventory of Historic Landmark Sites and Structures (the Inventory) is governed by Section 26.415.030(C) of the Code. In order to be eligible for designation, an individual building, site, structure, or object, or a collection of buildings, sites, structures, or objects must have a demonstrated quality of significance. Furthermore, to be worthy of preservation incentives and to evaluate the equitability of such incentives, an AspenModern property must be rated on a "good, better or best" scale with regard to its contribution to and significance in Aspen's 20th century history. Section 26.415.030(C)(1) of the Code states that, The quality of significance of properties shall be evaluated according to the criteria below: a. The property is related to an event, pattern or trend that has made a contribution to local, state, regional, or national history that is deemed MasonMorse AspenModem Application(PID 2737-182-13-002) Page 9 important, and the specific event, pattern or trend is identified and documented in an adopted context paper; b. The property is related to people who have made a contribution to local, state, regional or national history that is deemed important, and the specific people are identified and documented in an adopted context paper; c. The property represents a physical design that embodies the distinctive characteristics of a type, period or method of construction, or represents the technical or aesthetic achievements of a recognized designer, craftsmen, or design philosophy that is deemed important and the specific physical design, designed, or philosophy is documented in an adopted context paper; d. The property possesses such singular significance to the City, as documented by the opinions or persons educated or experienced in the fields of history, architecture, landscape architecture, archaeology or a related field, that the property's potential demolition or major alteration would substantially diminish the character and sense of place in the city as perceived by members of the community; and e. The property or district possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association, given its age. The City Council shall adopt and make available to the public score sheets and other devices which shall be used by the Council and Historic Preservation Commission to apply this criteria. The City of Aspen's historic preservation program includes official context papers about the Post WWII architectural styles that have influenced the City, induding Modernism. The context paper describes Modernism as a style of architecture that began in the 20th century as a result of a dear philosophical shift in design practices and attitudes, and incredible changes in building technology. The following information on Robin Molny was found in the City's adopted context paper. Robin Molny (1928-1997) apprenticed at Taliesin for some five years,from 1949 to c. 1954, before moving to in the mid-1950s. While passing through Aspen on trips back and forth between Wisconsin and Arizona, he met Benedict, who later called and offered him work in Aspen. Molny worked for him for a year and half, then became a registered architect, and started his own practice. Born in Cleveland, Ohio, Molny attended the Carnegie Institute of Technology in Pittsburgh before Taliesin. His Taliesin years were pivotal, coinciding with the postwar resurgence of Wright's architectural practice and planning for the construction of the Guggenheim Museum. In September 1953, Molny was one of three apprentices who traveled to New York City in the Fellowship station wagon to help to set up "Sixty Years of Living Architecture, " an exhibition of Wright's architectural drawings and models. The exhibit had traveled to many cities worldwide and was going up in a temporary pavilion on the site of the new museum—sort of Wright's shot across the bow to signal New Yorkers that he was on the scene. Wright MasonMorse AspenModern Application(PID 2737-182-13-002) Page 101 typically put an experienced apprentice in charge of constructing the Fellowship- designed Usonian houses, greatly in demand; and Molny supervised the Maurice Greenberg residence in Dousman, Wisconsin, and was working with another Taliesin apprentice in Park Ridge, Illinois, when he left for Aspen. Despite Wright's appreciation for Molny, he and Mrs. Wright did not get along, and he left Taliesin with some hard feelings. In Aspen, Molny designed several notable buildings, including the Hearthstone House (1961, enlarged 1963, 134 E. Hyman Avenue) and the Aspen Athletic Club (1976, 720 E. Hyman Avenue, with Art Yuenger). He designed area residences, including the W. Ford Schumann House, an Architectural Record house of 1975—a geometrically complex composition of stucco-battered walls that stepped up the side of the mountain. Wright told Molny, "If you understand the principles of my architecture, then your buildings need not look like mine. " Molny's best known contribution to Aspen's "townscape" is the transformation of Cooper and Hyman Avenues into a pedestrian mall (1976) on which he collaborated with veteran Taliesin fellow Curtis Besinger. Clearly, Robin Molny made important contributions to local history and the Aspen Modernist Architectural Movement, as identified by and evidenced in the City's official context paper and the fact that one of his buildings, the Hearthstone House, was landmarked in 2007. Another building designed by Molny, the Aspen Athletic Club, applied for landmark designation in 2009 but the review process was never completed. With Molny's history of involvement in Aspen's pedestrian malls, it is befitting that his 514 East Hyman Avenue building and the legacy of its street front pedestrian plaza should be restored and preserved. Furthermore, the subject building maintains a physical design that embodies the distinctive characteristics of the Wrightian design philosophy. The City's Historic Preservation Program utilises Integrity Assessments in order to score a property's ability to convey its historic significance. A total of 100 points is the most a Modernist property can score between the categories of location, design, setting, materials, and workmanship. A score of 75 points is considerate adequate for Landmark designation. The building at 514 East Hyman Avenue has not yet been officially scored but a review of the criteria reveals that the proposed restoration plans will make it worthy of a perfect score of 100 points for the following reasons: • The structure is in its original location(5 points out of 5); • The original plan form, based on authenticating documentation (the original sketches and floor plans) is still intact(10 points out of 10); • The original flat roof is unaltered (10 points out of 10); MasonMorse AspenModern Application(PID 2737-182-13-002) Page 11 • The original scale and proportions of the building are intact (4 points out of 5 due to the parapet/pediment addition, but will be restored to 5 out of 5 points); • The original pattern of glazing and exterior materials is intact (or will be upon restoration) (10 points out of 10); • The character defining features remain(10 points out of 10); • The physical surroundings are largely unchanged from the date of construction (5 points out of 5); • There have been minor alterations to the original exterior wall materials and glazing made in a manner that conforms to the design guidelines and these alterations will be brought back to their original combination upon restoration(15 points out of 15); • All or most of the original door and window units are intact (10 points of out 10); • The building is void of decoration and clearly follows Modernist tenets. All exterior surfaces are CMU blocks or glazing (will be 15 points out of 15); and • The neutral or monochromatic color scheme and finishes that define the stylistic category of Modernism is intact(5 points out of 5). The subject building's integrity assessment achieves a score of greater than 75 points today, but the proposed restoration plans will bring this integrity score back to a perfect 100 points. The building was constructed more than thirty (30) years ago. The building also embodies the aesthetic achievements of Robin Molny, an internationally respected architect who contributed to Modern Era Aspen architecture. As such this structure satisfies the standards for landmark designation. This property is more than worthy of being designated a Historic Landmark as an example of an AspenModern property with regard to its contribution to and significance in Aspen's 20th century history. B. Conceptual Approval of a Major Development by the HPC All applications for Conceptual and Final approval of a Major Development project must receive a determination of consistency with the City of Aspen Historic Preservation Design Guidelines (the "HP Guidelines") to be approved. If the voluntary Landmark Designation proposed herein is approved, the proposed remodel and restoration must, in turn, receive Major Development approval. Since this property is seeking Landmark status, Conceptual approval of the proposed design requires a finding of consistency with Chapters 1-10 of the HP Guidelines, as well as the guidelines for property in the Commercial Core Historic District found in Chapter 13 and the General Design Guidelines of Chapter 14. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 121 More specifically, Chapters 1 through 10 of the HP Guidelines refer to renovations of and additions to Historic Structures. Chapters 11 and 12 are not applicable since they provide guidelines for new buildings and additions on residential landmark properties and design in the Main Street Historic District, respectively. The proposed development complies with the guidelines for Commercial Core properties found in Chapter 13. The project has been designed to be generally consistent with the guidelines of Chapter 14, but specific consistency with these requirements will be demonstrated as part of the HPC's Final review. The HP Guidelines state that not every guideline will apply to each project and that some balancing of the guidelines must occur on a case-by-case basis. Accordingly, the HPC must find only that a sufficient number of the relevant guidelines have been adequately met in order to approve the proposal. Conceptual Review focuses on height, scale, massing, and proportions of a proposal. The guidelines addressing treatment and preservation of materials, lighting, fenestration and the like will be more specifically addressed during Final HPC Review. Chapter One of the HP Guidelines relates to streetscapes and lot features and is largely inapplicable to this proposed development. That is, Sections 1.1 through 1.8 concern fences and retaining walls and Sections 1.10 through 1.14 relate to private yards. None of these sections are applicable as no fences, retaining walls or private yards exist or are proposed on this property. Likewise, Sections 1.16 and 1.17 are not applicable as no historically significant landscape designs or irrigation ditches exist on the property. The only applicable guidelines from Chapter One (1.9 Walkways and 1.15 Site Lighting) are addressed below. Walkways 1.9 Maintain the established progression of public-to-private spaces when considering a rehabilitation project. • This includes a sequence of experiences, beginning with the "public" sidewalk, proceeding along a "semi-public" walkway, to a "semi private" porch or entry feature and ending in the "private"spaces beyond. • Provide a walkway running perpendicular from the street to the front entry. Meandering walkways are discouraged, except where it is needed to avoid a tree. • Use paving materials that are similar to those used historically for the building style. Concrete, wood or sandstone may be appropriate for certain building styles. The established progression of public to private space will be vastly improved in a manner consistent with Molny's legacy. Several of the inappropriately oriented and leaky planter boxes that were added to the property during the last renovation will be removed. The current alignment of planter boxes and staircases run contrary to the direction of the adjacent sidewalks and associated MasonMorse AspenModern Application(PID 2737-182-13-002) Page 131 pedestrian movements, resulting in awkward and uninviting spaces that bear little to no relation or connectivity with the adjacent Elks Building plaza space. The MasonMorse building's plaza layout will be redesigned to be much simpler, and will include ADA accessibility provisions. This remodeled public-private space will function well while providing an inviting dwell space that ties in with the Elks Building plaza and enhances the overall pedestrian experience. Site Lighting 1.15 Minimize the visual impacts of site lighting. • Site lighting should be shielded to avoid glare onto adjacent properties. Focus lighting on walks and entries, rather than up into trees and onto facade planes. This standard is understood by the applicant and will be addressed at Final HPC Review. The relevant guidelines from Chapters 2 through 10, as well as those from Chapters 13 and 14, are outlined below in italicized text and each is followed by a response demonstrating compliance and/or consistency therewith, as applicable. 2.1 Preserve original building materials. 2.2 Protect wood features from deterioration. 2.3 Plan repainting carefully. 2.4 Brick or stone that was not painted historically should not be painted. 2.5 Repair deteriorated primary building materials by patching, piecing-in, consolidating or otherwise reinforcing the material. 2.6 Maintain masonry walls in good condition. 2.7 Match the original material in composition, scale and finish when replacing materials on primary surfaces. 2.8 Do not use synthetic materials as replacements for primary building materials. 2.9 Covering original building materials with new materials is inappropriate. • Regardless of their character, new materials obscure the original, historically significant material. For example, vinyl siding, aluminum siding and new stucco are inappropriate on historic buildings. Other imitation materials that are designed to look like wood or masonry siding, but that are fabricated from other materials, are also inappropriate. • If a property already has a non-historic building material covering the original, it is not appropriate to add another layer of new material, which would further obscure the original. • Any material that covers historic materials will also trap moisture between the two layers. This may cause accelerated deterioration to the historic material which will go unnoticed. 2.10 Consider removing later covering materials that have not achieved historic significance. • Once the non-historic siding is removed, repair the original, underlying material. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 141 Original building materials will be restored and preserved. The original materials that were obscured by the renovation in the 1990s will be restored to their original appearance,including the brick work that has been obscured by the sandstone veneer. As appropriate, these standards will be more fully addressed at Final HPC Review. 3.1 Preserve the functional and decorative features of a historic window. 3.2 Preserve the position, number and arrangement of historic windows in a building wall 3.3 Preserve the historic ratio of window openings to solid wall on a facade. 3.4 Match a replacement window to the original in its design. 3.5 In a replacement window, use materials that appear similar to the original 3.6 Preserve the size and proportion of a historic window opening. 3.7 Match, as closely as possible, the profile of the sash and its components to that of the original window. 3.8 Use a storm window to enhance energy conservation rather than to replace a historic window. Although this standard will be more specifically addressed at the time of Final HPC Review, all existing windows will be retained to the extent practicable. 4.1 Preserve historically significant doors. 4.2 Maintain the original size of a door and its opening. 4.3 When a historic door is damaged, repair it and maintain its general historic appearance. 4.4 If a new screen door is used, it should be in character with the primary door. 4.5 When replacing a door, use a design that has an appearance similar to the original door or a door associated with the style of the house. 4.6 If energy conservation and heat loss are concerns, consider using a storm door instead of replacing a historic entry door. Although this standard will be more specifically addressed at the time of Final HPC Review, it is the applicant's intention to preserve all historically significant doors. The proposed new door is oriented perpendicular to the street and front facade to obscure its appearance and minimize its visual impact while maintaining the prominence of the street-facing,primary front entrance. Treatment of Porches 5.1 Preserve an original porch. 5.2 Avoid removing or covering historic materials and details on a porch. 5.3 Avoid enclosing a historic front porch. 5.4 The use of a porch on a residential building in a single-family context is strongly encourager. Porch Replacement MasonMorse AspenModern Application(MD 2737-182-13-002) Page 15 5.5 If porch replacement is necessary, reconstruct it to match the original in form and detail. There are no porches associated with this property. Treatment of Architectural Features 6.1 Preserve significant architectural features. 6.2 When disassembly of a historic element is necessary for its restoration, use methods that minimize damage to the original material. 6.3 Remove only the portion of the detail that is deteriorated and must be replaced. 6.4 Repair or replacement of missing or deteriorated features should be based on original designs. 6.5 Do not guess at "historic"designs for replacement parts. 6.6 Replacement of missing elements may be included in repair activities. The applicant intends to preserve all of the significant architectural features of this building and will return any previously obscured features to their original form. No significant architectural features of the building will be obscured by the proposed development. Treatment of Roofs 7.1 Preserve the original form of a roof • Do not alter the angle of a historic roof. Instead, maintain the perceived line and orientation of the roof as seen from the street. • Retain and repair roof detailing. The original flat form of the roof has been obscured by the addition of a parapet and pediment form. These inappropriate additions will be removed and the roofline will be restored to its original flat and lower-height form. The setback third floor addition, which will not obscure the original building, will also have a low-profile, flat roof. With the third floor addition's walls inset from the wall faces of the historic structure, the original roofline will not only be restored but will remain prevalent on all sides. Also, see the response provided for Guideline 7.6,below. 7.2 Preserve the original eave depth. • The shadows created by traditional overhangs contribute to one's perception of the building's historic scale and therefore, these overhangs should be preserved. The original eave depths will be preserved. Removal of the faux support post from the front facade will enhance the historic restoration of eave depths. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 1(1 7.3 Minimize the visual impacts of skylights and other rooftop devices. • Flat skylights that are flush with the roof plane may be considered only in an obscure location on a historic structure. Locating a skylight or a solar panel on a front roof plane is not allowed. • A skylight or solar panel should not interrupt the plane of a historic roof. It should be positioned below the ridgeline. With regard to this Guideline as well as Guidelines 7.1 and 7.2 (above), an elevator is required to serve the remodeled building and this, in turn, requires a five foot elevator overrun at the roof. To accommodate this requirement in the most sensitive possible way,the resulting form has been positioned near the center of the building, more than twelve (12) feet from the west facade, over nine (9) feet from the east facade, and nearly forty-three (43) feet back from the building's front facade (see Roof Plan,Sheet A3.5). The proposed third floor skylights are similarly situated in as sensitive a manner as practicable. While the elevation drawings necessarily depict these improvements in unflattering one-dimension, the reality is more accurately reflected by its complete lack of visibility in the rendered perspective drawings (Sheets A6.1 and A6.2). 7.4 A new chimney should be the same scale as those used historically. 7.5 Preserve original chimneys, even if they are made non-functional. The existing building does not have a chimney and no new chimneys are proposed. 7.6 When planning a rooftop addition,preserve the overall appearance of the original roof • An addition should not interrupt the original ridgeline. • See also: Chapter 10, Guidelines for Building Additions. Although a third floor addition is proposed, it is set 15 feet back from the restored front facade of the building. Therefore, the original roofline will remain (after it is restored) and a portion of the roof will become a deck for the third- floor residential unit. The overall appearance and lines of the original roof will be enhanced and preserved. Both the original roof and the proposed third floor roof are flat. Along with the fifteen foot front setback (from the street-facing facade), the third floor addition is inset from the original side walls of the building. As the plans, elevations and renderings illustrate,the proposed third floor walls are set inside the face of the walls of the ground and second floors, resulting in a dear demarcation between the old and the new,subordinate form. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 171 7.7A new dormer should remain subordinate to the historic roof in scale and character. • A new dormer should fit within the existing wall plane. It should be lower than the ridgeline and set in from the eave. It should also be in proportion with the building. • The mass and scale of a dormer addition must be subordinate to the scale of the historic building. There are no dormers on the existing building and none are proposed. 7.8 Preserve original roof materials. • Avoid removing historic roofing material that is in good condition. When replacement is necessary, use a material that is similar to the original in both style as well as physical qualities and use a color that is similar to that seen historically. • Specialty materials such as tile, slate or concrete should be replaced with a matching material. The existing roofing material is not visible from the public ways and is not historically significant. 7.9 New or replacement roof materials should convey a scale, color and texture similar to those used traditionally. • Replacement materials should be similar to those used historically on comparably styled buildings. • If a substitute is used, such as composition shingle, the roof material should be earth tone and have a matte, non-reflective finish. • Flashing should be in scale with the roof material. • If copper flashing is to be used, it should be treated to establish a matte, non- reflective finish. 7.10 If it is to be used, a metal roof should be applied and detailed in a manner that is compatible and does not detract from the historic appearance of the building. • A metal roof material should have an earth tone and have a matte, non-reflective finish. • A metal roof with a lead-like patina also is an acceptable alternative. • Seams should be of a low profile. • A roof assembly with a high profile seam or thick edge is inappropriate. The roof material for the addition will have a matte, non-reflective finish and be, • clearly, a product of its own time. The new low-profile, flat roof will not be visible from any publicly accessible vantage points. 7.11 Avoid using conjectural features on a roof • Adding ornamental cresting,for example, where there is no evidence that it existed creates a false impression of the building's original appearance, and is inappropriate. There will be no conjectural features on or added to the roof. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 18 Chapter 8 of the HP Guidelines is inapplicable as it addresses preservation of historically significant secondary structures, and no such structures exist on the subject property. Chapter 9 is also inapplicable since it discusses building relocation and new foundations; this building is not being relocated and the original foundation is being preserved. Chapter 10 is addressed below. 10.1 Preserve an older addition that has achieved historic significance in its own right. • Such an addition is usually similar in character to the original building in terms of materials,finishes and design. 10.2 A more recent addition that is not historically significant may be remover. There have been no additions that have achieved historic significance. The more recent, inappropriate additions will be removed to allow for a sensitive restoration. 10.3 Design a new addition such that one's ability to interpret the historic character of the primary building is maintained • A new addition that creates an appearance inconsistent with the historic character of the primary building is inappropriate. • An addition that seeks to imply an earlier period than that of the primary building also is inappropriate. • An addition that seeks to imply an inaccurate variation of the primary building's historic style should be avoided. • An addition that covers historically significant features is inappropriate. The third floor addition to this building, which is set more than 15 feet back from the front of the building has been designed to complement the historic character of the building, but is clearly a product of its own time. Also, please see "The Proposal" section of this application, above, for greater detail. As previously mentioned, no historically significant features will be covered up by this addition. 10.4 Design a new addition to be recognized as a product of its own time. • An addition should be made distinguishable from the historic building, while also remaining visually compatible with these earlier features. • A change in setbacks of the addition from the historic building, a subtle change in material or a differentiation between historic, and more current styles are all techniques that may be considered to help define a change from old to new construction. The proposed addition is clearly distinguishable from the historic building, but is visually compatible with the earlier design. The proposed addition uses different materials than those found on the historic portion of the building and setbacks that provide a clear demarcation between the old and the new. The MasonMorse AspenModern Application(PID 2737-182-13-002) Page 19 addition's modern loft-style design will complement, yet be subordinate to the historic building. The addition will be clearly recognizable as a product of its own time. Also, please see "The Proposal" section of this application, above, for greater detail. 10.5 When planning an addition to a building in a historic district, preserve historic alignments that may exist on the street • Some roof lines and porch eaves on historic buildings in the area may align at approximately the same height. An addition should not be placed in a location where these relationships would be altered or obscured. The proposed addition has no effect on the building's historic alignments relative to the street. Historic rooflines and eaves will be restored and, therefore, enhanced. The remodeled public-private entry plaza will also enhance the building's alignment with the street while greatly enhancing the pedestrian experience. 10.6 Design an addition to be compatible in size and scale with the main building. • An addition that is lower than or similar to the height of the primary building is preferred. 10.7 If it is necessary to design an addition that is taller than a historic building, set it back substantially from significant facades and use a "connector"to link it to the historic building. • A 1-story connector is preferred • The connector should be a minimum of 10 feet long between the addition and the primary building. • The connector also should be proportional to the primary building. . The proposed addition is compatible with the resource in size and scale as it is smaller,subservient, and set back from the significant facades. 10.8 Place an addition at the rear of a building or set it back from the front to minimize the visual impact on the historic structure and to allow the original proportions and character to remain prominent • Locating an addition at the front of a structure is inappropriate. • Additional floor area may also be located under the building in a basement which will not alter the exterior mass of a building. • Set back an addition from primary facades in order to allow the original proportions and character to remain prominent. A minimum setback of 10 feet on primary structures is recommended. As previously mentioned, the proposed addition is set fifteen (15) feet back from the front façade, significantly reducing any visual impact and allowing the original proportions and character to be delivered back to prominence. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 20 10.9 Roof forms should be similar to those of the historic building. • Typically, gable, hip and shed roofs are appropriate. • Flat roofs are generally inappropriate for additions on residential structures with sloped roofs. The existing building has a flat roof. The proposed addition will maintain this roofline as it features a similar flat roof that is setback fifteen feet (15') from the front façade. 10.10 Design an addition to a historic structure such that it will not destroy or obscure historically important architectural features. • For example, loss or alteration of architectural details, cornices and eavelines should be avoided. No architectural details will be lost,altered or obscured by the proposed addition to this building. 10.11 On a new addition, use exterior materials that are compatible with the historic materials of the primary building. • The new materials should be either similar or subordinate to the original materials. The addition's exterior materials will be compatible with the historic materials, and will be discussed further during Final HPC Review. 10.12 When constructing a rooftop addition, keep the mass and scale subordinate to that of a historic building. • An addition should not overhang the lower floors of a historic building in the front or on the side. • Dormers should be subordinate to the overall roof mass and should be in scale with historic ones on similar historic structures. • Dormers should be located below the primary structure's ridgeline, usually by at least one foot. The proposed rooftop addition is subordinate in mass and scale to the historic building and is setback fifteen feet from the front of the building along with insets on the other three sides to allow for a clear demarcation at the roofline between the old and the new. The addition will not overhang lower floors on any side, and no dormers are proposed. 10.13 Set a rooftop addition back from the front of the building. • This will help preserve the original profile of the historically significant building as seen from the street. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 21 As mentioned above, the addition will be setback from the front facade by fifteen (15) feet and inset on all other sides. The original profile of the building as seen from the street will be preserved. 10.14 The roof form and slope of a new addition should be in character with the historic building. • If the roof of the historic building is symmetrically proportioned the roof of the addition should be similar. • Eave lines on the addition should be similar to those of the historic building or structure. The proposed addition envisions a flat roofline similar to the existing roofline. See also responses to several similar guidelines above. Since the proposed development is located in the Commercial Core, its design must comply with Chapter 13 of the City of Aspen Historic Preservation Guidelines. In the words of the Guidelines, Traditionally the hub of Aspen and the center of commercial and cultural activity, the Commercial Core should remain so. Designs for new construction should reinforce the retail-oriented function of the street and enhance its pedestrian character. While new construction should be compatible with the historic character of the district designs should not copy early styles but instead should seek creative new solutions that convey the community's continuing interest in exploring innovations. At the same time, the fundamental principles of traditional design must be respected. Outlined below is each of the Chapter 13 guidelines in italicized print, followed by a description of the proposal's compliance and/or consistency therewith, as applicable. 13.1 Respect the established town grid in all projects. • Maintain the alignment of streets and alleys whenever feasible. The proposed development will continue to follow the alignment of the streets and alleys by being sited parallel to the lot lines. The existing, non-historic entry plaza is oriented counter to the flow of pedestrian and vehicular traffic, but the remodel of this area will reestablish consistency with the town grid. 13.2 Orient a new building parallel to its lot lines,similar to that of traditional building orientations. • The front of a primary structure shall be oriented to the street. MasonMorse As s enModem A .lication 'ID 2737-182-13-002 Pare 22 This is not a new building, only a restoration and addition. As such, the front of the building will continue to be oriented to the street. 13.3 Orient a primary entrance toward the street • Buildings should have a clearly defined primary entrance. For most commercial buildings, this should be a recessed entry way. • Do not orient a primary entrance to an interior court • Providing secondary public entrances to commercial spaces is also encouraged on larger buildings. The building will continue to have a clearly defined and recessed primary entrance that is oriented toward the street. A secondary entrance serving the residential unit is proposed in a location perpendicular to the street and the front façade in order to obscure its appearance and minimize its visual impact while maintaining the prominence of the street-facing, primary front entrance. There are no interior courts proposed, and all entrances are on the existing entry plaza level, providing for pedestrian friendliness and accessibility for people with physical disabilities. Alleys 13.4 Develop alley facades to create visual interest • Use varied building setbacks and changes in materials to create interest and reduce perceived scale. • Balconies, court yards and decks are also encouraged. • Providing secondary public entrances is strongly encouraged along alleys. These should be covered or protected and clearly intended for public use, but subordinate in detail to the primary street-side entrance. The existing alley façade is a considerable downgrade in architectural treatment, materials and detailing from the front façade. The alley façade is a blank, painted CMU wall with no visual interest, no windows, and an entrance that sits five risers above grade. Clearly, the alley side of the building was not "designed" but was a purely utilitarian element. The alley side remodel has been designed to complement the Molny architecture through a contemporary interpretation aimed at consistency of solid to void ratios and fenestration patterns. Vertical siding will be used on the new elements of the north (facing the alley) facade in order to enhance these means of achieving consistency while injecting a clear but compatible differentiation. New windows will be added to enable penetration of natural light into the interior spaces. Vertical siding around and over (ghosted windows set behind perforated siding) the new windows will be added in a manner reminiscent of the "window bank" form established on the primary/front facade. That is, rather than three separate punched openings, a feature Molny likely never would have incorporated in this MasonMorse AspenModern Application(PID 2737-182-13-002) Page 23 building, the new windows are to be set in a band of vertical siding to give the effect of a consistent solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front façade. 13.5 Retain the character of the alley as a part of the original town grid • Maintain an alley as an open space. • Alleys also may be used as pedestrian ways. The proposed building maintains the alley as an open space that can be used as a pedestrian way. The currently blank and lifeless CMU wall facing the alley will receive enhanced interest as well as significantly improved functionality (i.e., entrance will be covered/inset and its level will be made to match the grade of the alley). Building Setbacks 13.8 Maintain the alignment of facades at the sidewalk's edge. • Place as much of the facade of the building at the property line as possible. • Locating an entire building front behind the established storefront line is inappropriate. • Where a portion of a building must be set back from the sidewalk, use landscape elements to define the sidewalk edge. The footprint of the building will remain the same as it has historically. Therefore, the front facade of the building will not be at the property line,just as has always been the case. Instead, the remodeled entrance plaza will be realigned to orient toward and be consistent with the sidewalk's edge while tying in with the immediately adjacent Elks Building plaza. Mass and Scale 13.9 Maintain the average perceived scale of two-story buildings at the sidewalk. • The design of a 3-story building should in some way acknowledge the 2-story character of the downtown. • Floor-to-floor heights should appear to be similar to those seen historically. In particular, the windows in new construction should appear similar in height to those seen traditionally. Traditionally, most commercial storefronts were 2 stories in height, with some significant buildings being three stories tall. Each block contained a mix of these heights, but an overall sense of unity in scale was established. The two-story character of Molny's original design will be reestablished as part of the restoration effort. As the illustration on Sheet A4.2.2 of the accompanying CCY Plans shows, the non-historic pediment and parapet wall additions on the building result in an inappropriately perceived, grand two-scale building at the sidewalk. The removal of these features and restoration of the original roofline MasonMorse AspenModem Application(PID 2737-182-13-002) Page 24 will take nearly five feet off the building height and even more in perceived scale at the front facade. The proposed third floor addition will have very little visual impact at the sidewalk as it will be set back fifteen (15) feet from the front façade, restoring the building's historic appearance from Hyman Avenue. Along with the fifteen foot front setback (from the street-facing façade), the third floor addition is inset from the original side walls of the building,resulting in a clear demarcation between the old and the new, subordinate form. An elevator is required to serve the remodeled building and this, in turn, requires a five foot elevator overrun at the roof. To accommodate this requirement in the most sensitive possible way, the resulting form has been positioned near the center of the building,more than twelve (12) feet from the west façade, over nine (9) feet from the east facade, and nearly forty-three (43) feet back from the building's front façade (see Roof Plan, Sheet A3.5). While the elevation drawings necessarily depict these improvements in unflattering one- dimension, the reality is more accurately reflected by its complete lack of visibility in the rendered perspective drawings (Sheets A6.1 and A6.2). The third floor addition has been designed to complement the Molny architecture through consistency of shadow lines, solid to void ratios, and fenestration patterns. To enhance these means of achieving consistency while injecting a clear but compatible differentiation, vertical siding will be used on the new elements at the third floor. The design is sympathetic to the historic Elks Building, and said building will not be even slightly overwhelmed by this development. Even with the proposed addition, this building is lower than the Elks Building and its stair tower annex, providing an appropriate stepping down in scale from the corner. 13.10 True three-story buildings will be considered on a case-by-case basis. • In general, a proposed three-story building must demonstrate that it has no negative impact on smaller, historic structures nearby. • The height and proportions of all facade components must appear to be in scale with nearby historic buildings. There are no smaller, historic structures nearby. The height and proportions of all façade components are in scale with nearby historic buildings including the Elks Building. Please also refer to the response provided for the previous guideline. 13.11 Consider dividing larger buildings into "modules"that are similar in width to buildings seen historically. • Where buildings are planned to exceed one lot width, use a change in design features to suggest the traditional building widths. Changes in facade material, window MasonMorse AspenModem Application(PID 2737-182-13-002) Page 25 design,facade height or decorative details are examples of techniques that may be considered. These variations should be expressed throughout the depth of the structure such that the composition appears to be a collection of smaller buildings. The proposed building is being developed on a single, traditional 3,000 square foot lot Building Form 1112 Rectangular forms should be dominant on Commercial Core facades. • Rectangular forms should be vertically oriented. • The facade should appear as predominantly flat, with any decorative elements and projecting or setback "articulations"appearing to be subordinate to the dominant form. The existing building is rectangular in form and is vertically oriented. The façade is predominantly flat The setback addition also complements, but remains subordinate to the dominant rectangular form. 13.13 Use flat roof lines as the dominant roof form. • A flat roof or one that gently slopes to the rear of a site, should be the dominant roof form. • Parapets on side facades should step down towards the rear of the building. • False fronts and parapets with horizontal emphasis also may be considered. The building's roof line and the proposed addition's roof line are both flat. A clear demarcation between the historic flat roofline and the flat roofline of the addition will result from the setbacks of the addition's walls from existing building faces. 13.14 Along a rear facade, using building forms that step down in scale toward the alley is encouraged • Consider using additive forms, such as sheds, stairs and decks to reduce the perceived scale. These forms should however, remain subordinate to the primary structure. • Use projecting roofs at the ground floor over entrances, decks and for separate utility structures in order to establish a human scale that invites pedestrian activity. The existing building fronts directly on the alley with a blank CMU wall with no windows. While only two stories, this lifeless wall looms large due to its complete lack of architectural interest, detailing or other mechanisms that might decrease its perceived scale. The alley side remodel, while three stories in height, has been designed to complement the Molny architecture through a contemporary interpretation aimed at consistency of solid to void ratios and fenestration patterns. Vertical siding will MasonMorse AspenModern Application(PID 2737-182-13-002) Page 26 be used on the new elements of the north (facing the alley) facade to enhance these means of achieving consistency while being a clear product of its own time. New windows will be added to enable penetration of natural light into the interior spaces. Vertical siding around and over (ghosted windows set behind perforated siding) the new windows will be added in a manner reminiscent of the "window bank" form established on the primary/front facade. That is, rather than three separate punched openings, a feature Molny likely never would have incorporated on this building, the new windows are to be set in a band of vertical siding to give the effect of a consistent solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front façade. The remodeled alley facade will also incorporate a single-stall garage as well as a recessed entrance, both even with the alley grade whereas the existing alley entrance resides five risers above grade. By achieving entrances at grade,it will feel as though the existing two-story mass has been lowered by several feet. This and the architectural features described above will serve to lower the perceived mass and scale of the building along the alley. Storefront Character 13.15 Contemporary interpretations of traditional building styles are encouraged • A contemporary design that draws upon the fundamental similarities among historic buildings without copying them is preferred. This will allow them to be seen as products of their own time and yet be compatible with their historic neighbors. • The literal imitation of older historic styles is discouraged. • In essence, infill should be a balance of new and old in design. The original Molny design could be characterized as a contemporary interpretation of traditional building styles. The proposal seeks to restore the successful interpretation created by Molny for preservation as part of the Aspen landscape. All proposed additions and remodeling of Molny's design draw upon his fundamental motifs without copying them. Consequently, both Molny's design and the proposed new elements will be clearly read as products of their own time and yet be compatible with the historic neighbors. 13.16 Develop the ground floor level of all projects to encourage pedestrian activity. • Consider using storefronts to provide pedestrian interest along the street. Storefronts should maintain the historic scale and key elements such as large display windows and transoms. • Large storefront display windows, located at the street level, where goods or services are visible from the street, are particularly encouraged. • The primary building entrance should be at street level. "Garden level"entrances are inappropriate. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 27 The building provides pedestrian interest and highly encourages pedestrian activity with the redevelopment of the plaza area. The primary building entrance is at street level. Please also refer to responses to similar standards, above. 13.17 Maintain the distinction between the street level and the upper floors. • The first floor of the primary facade should be predominantly transparent glass. • Upper floors should be perceived as being more opaque than the street level. Upper story windows should have a vertical emphasis. • Highly reflective or darkly tinted glass is inappropriate. • Express the traditional distinction in floor heights between street levels and upper levels through detailing, materials and fenestration. The presence of a belt course is an important feature in this relationship. The proposed development will restore the building to its original design. The distinction between the street level and the upper floors will be maintained. Repetition of Facade Elements 13.18 Maintain the repetition of similar shapes and details along the block. • Upper story windows should have a vertical emphasis. In general, they should be twice as tall as they are wide. • Headers and sills of windows on new buildings should maintain the traditional placement relative to cornices and belt courses. All upper story windows on the existing structure will not change, thus maintaining a vertical emphasis. The windows of the third floor addition are vertically oriented and compatible with those of the two existing levels. 13.19 Maintain the pattern created by recessed entry ways that are repeated along a block. • Set the door back from the front façade approximately 4 feet This is an adequate amount to establish a distinct threshold for pedestrians. • Where entries are recessed, the building line at the sidewalk edge should be maintained by the upper floor(s). • Use transoms over doorways to maintain the full vertical height of the storefront. The footprint of the building will remain the same as it has historically. Therefore, the front facade of the building will not be at the property line,just as . has always been the case. Instead, the remodeled entrance plaza will be realigned to orient toward and be consistent with the sidewalk's edge while tying in with the immediately adjacent Elks Building plaza. The building will continue to have a clearly defined and recessed primary entrance that is oriented toward the street. A secondary entrance serving the residential unit is proposed in a location perpendicular to the street and the front MasonMorse AspenModem Application(PID 2737-182-13-002) Page 281 facade in order to obscure its appearance and minimize its visual impact while maintaining the prominence of the street-facing, primary front entrance. There are no interior courts proposed, and all entrances are on the existing entry plaza level, providing for pedestrian friendliness and accessibility for people with physical disabilities. Detail Alignment 13.20 The general alignment of horizontal features on building fronts should be maintained • Typical elements that align include window moldings, tops of display windows, cornices, copings and parapets at the tops of buildings. • When large buildings are designed to appear as several buildings, there should be some slight variation in alignments between the facade elements. The proposed development will return this building to its original design, including restoration of the flat roofline at its original height. 13.21 Special features that highlight buildings on corner lots may be considered • Develop both street elevations to provide visual interest to pedestrians. • Corner entrances, bay windows and towers are examples of elements that may be considered to emphasize corner locations. • Storefront windows, display cases and other elements that provide visual interest to facades along side streets are also appropriate. This building is not on a corner lot. 14.1 These standards should not prevent or inhibit compliance with accessibility laws. • All new construction should comply completely with the Americans with Disabilities Act (ADA). Owners of historic properties should comply to the fullest extent possible, while also preserving the integrity of the character-defining features of their buildings. Special provisions for historic buildings exist in the law that allow some alternatives in meeting the ADA standards. 14.2 Generally, a solution that is independent from the historic building and does not alter its historic characteristics is encouraged The existing building does not comply with ADA requirements. The applicant is proposing to redesign the plaza entry for compliance with ADA requirements. The internal layout of the remodel has also been designed for consistency with ADA requirements. 14.3 Keep color schemes simple. 14.4 Coordinating the entire building in one color scheme is usually more successful than working with a variety of palettes. 14.5 Develop a color scheme for the entire building front that coordinates all the façade elements. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 29 • Although the HPC does not review the choice of color, there are guidelines that are provided to encourage similar paint schemes. These guidelines are understood and will be more fully addressed at the time of Final HPC review. That said, the applicant will be restoring the original brick as the predominant color of the building,and the original,blue Molny awnings will also be restored. 14.6 Exterior lights should be simple in character and similar in color and intensity to that used traditionally. 14.7 Minimize the visual impacts of site and architectural lighting. 14.8 Minimize the visual impact of light spill from a building. The lighting standards are understood by the applicant and will be further addressed at the time of Final HPC Review. It is anticipated that exterior lighting will remain largely unchanged from current conditions, although some low and downcast plaza lighting may be necessary. 14.9 Use the gentlest means possible to clean the surface of materials and features. 14.10 Repair deteriorated primary building materials by patching, piecing-in, consolidating or otherwise reinforcing the material. 14.11 Plan repainting carefully. 14.12 Provide a weather protective finish to wood surfaces. 14.13 Leave natural masonry colors unpainted where feasible. These standards will be followed by the applicant. In fact, as part of the proposed development, the applicant will be restoring this building to its original design, and will be removing all non-historic elements that may have been added to this building during prior renovations. Some work and attention will be necessary for the successful removal of the sandstone veneer and restoration of the original brick; this effort will be coordinated with the HPC staff and monitor. 14.14 Minimize the visual impacts of service areas as seen from the street. • When it is feasible, screen service areas from view, especially those associated with commercial and multifamily developments. • This includes locations for trash containers and loading docks. • Service areas should be accessed off of the alley, if one exists. The service area will continue to be located off of the alley, thereby minimizing any visual impacts from the street. It is expected that the current trash service agreement with the Elks Building will be re-worked and extended to allow users of the remodeled building to continue sharing trash services. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 30 14.15 Minimize the visual impacts of mechanical equipment as seen from the public way. • Mechanical equipment may only be installed on an alley facade, and only if it does not create a negative visual impact. • Mechanical equipment or vents on a roof must be grouped together to minimize their visual impact Where rooftop units are visible, provide screening with materials that are compatible with those of the building itself. • Screen ground-mounted units with fences, stone walls or hedges. • A window air conditioning unit may only be installed on an alley facade, and only if it does not create a negative visual impact. • Use low profile mechanical units on rooftops so they will not be visible from the street or alley. Also minimize the visual impacts of utility connections and service boxes. Use smaller satellite dishes and mount them low to the ground and away from front yards, significant building facades or highly visible roof planes. • Paint telecommunications and mechanical equipment in muted colors that will minimize their appearance by blending with their backgrounds. Visibility of mechanical equipment is being minimized from the public ways such that little to no negative visual impact is anticipated. As the Roof Plan at Sheet A3.5 and the Section Drawing at Sheet A5.1 of the CCY Plan Set illustrate, mechanical equipment will be screened behind the elevator overrun and centered on the rear third of the rooftop. This location will render visibility of these features negligible to non-existent from the surrounding public ways. 14.16 Locate standpipes, meters and other service equipment such that they will not damage historic facade materials. • Cutting channels into historic façade materials damages the historic building fabric and is inappropriate. Do not locate equipment on the front facade. • If a channel must be cut, either locate it on a secondary facade, or place it low on the wall. No service equipment will be located on the front façade and none will damage any historic façade materials. The existing standpipe projecting from one of the entry plaza planter box walls will need to be relocated. 14.17 Design a new driveway in a manner that minimizes its visual impact. 14.18 Garages should not dominate the street scene. 14.19 Use a paving material that will distinguish the driveway from the street. 14.20 Off-street driveways should be removed, if feasible. 14.21 For existing driveways that cannot be removed,provide tracks to a parking area rather than paving an entire driveway. 14.22 Driveways leading to parking areas should be located to the side or rear of a primary structure. 14.23 Parking areas should not be visually obtrusive. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 31 14.24 Large parking areas, especially those for commercial and multifamily uses, should not be visually obtrusive. As part of the renovation, a one-car garage will be constructed on the alley side of the building. Access to the garage will be via the alley. Signs 14.25 Locate signs to be subordinate to the building design. 14.26 Sign materials should be similar to those used historically. 14.27 Use signs to relate to other buildings on the street and to emphasize architectural features. 14.28 Pictographic symbols are encouraged on signs. 14.29 Illuminate a sign such that it complements the overall composition of the site. These guidelines are understood by the applicant and will be further addressed at the time of Final HPC Review. All signs will be located so as to be subordinate to the building design. C. Conceptual Commercial Design Review Approval by the HPC The Commercial, Lodging and Historic District Design Objectives and Guidelines (the "Commercial Guidelines") set forth design review criteria, standards and guidelines that are to be used in making determinations of appropriateness. The Commercial Guidelines are organized to address the different design contexts that exist in the City. These distinct settings, or contexts, are defined as "Character Areas," within which variations exist among the physical features that define each area. The proposed development is located in the"Commercial Core" character area. Per the Commercial Guidelines, all development projects should achieve the following design objectives: • Promote an interconnected circulation system that invites pedestrian use, including a continuous street and alley system and a respect for the natural topography; • Promote a system of public places that support activities, including public amenity spaces, compatible landscaping and paving, and unobtrusive off-street parking; and • Assure that buildings fit together to create a vibrant street edge that reinforces a sense of appropriate scale. As part of the remodel, the applicant will remove all planter boxes incorporated into the existing entry plaza design as these leak and were not part of the original Molny design. The current alignment of planter boxes and staircases run contrary to the direction of the adjacent sidewalks and associated pedestrian MasonMorse AspenModern Application(PID 2737-182-13-002) Page 32 movements, resulting in awkward and uninviting spaces. The plaza layout will be redesigned to be much simpler, and will include ADA accessibility provisions. This remodeled public-private space will function well while providing an inviting dwell space that ties in with the Elks Building plaza area and enhances the overall pedestrian experience. The existing character of the Commercial Core is explained as follows: The heart of Aspen centers around the Commercial Core Historic District. It is the first area that developed in the early mining days of the town and its character reflects this rich mining heritage, which is the image that many carry with them of this historic Colorado mountain town. Each historic building contributes to the integrity of the district and preservation of all of these resources is, therefore, crucial. This is especially important as new development continues. The purpose of the Commercial Core (CC) zone district is stated in Section 26.710.140(A) of the Code as follows: "to allow the use of land for retail, service commercial, recreation, and institutional purposes within mixed-use buildings to support and enhance the business and service character in the historical central business core of the City." The proposal will retain the existing commercial use while adding a residential unit, resulting in a mixed-use structure that will be restored and landmark designated to enhance the character of the historical central business core of the City. The key design objectives in the Commercial Core are as follows: 1. Maintain a retail orientation. Traditionally the hub of Aspen and the center of commercial and cultural activity, the Commercial Core should remain so. Designs for new construction should reinforce the retail-oriented function of the street and enhance the pedestrian character. 2. Promote creative, contemporary design that respects the historic context. While new construction should be compatible with the historic character of the district, designs should not copy early styles but instead should seek creative new solutions that convey the community's continuing interest in exploring innovations. At the same time, the fundamental principles of traditional design must be respected. This means that each project should strike a balance in the design variables that are presented in the following pages. 3. Maintain the traditional scale of building. The Commercial Core of the City is likely to experience continuing market pressure for hotel, commercial and residential development and the parallel needs of affordable commercial and residential accommodation. It is important that future MasonMorse AspenModern Application(PID 2737-182-13-002) Page 33 growth acknowledges, complements and enhances the existing scale and character of the area. 4. Reflect the variety in building heights seen traditionally. New development should stay within the range of building heights, and be designed to reflect the variation in height across original lot widths. The scale of form of a new building should be designed to safeguard the setting of a historic building, whether single story or the large 'iconic'three plus stories. 5.Accommodate outdoor public spaces where they respect the historic context. The street vitality associated with the center of the city should be retained and enhanced through a combination of the form and design of the walkable street network and associated areas of public gathering space at street level and above. The design of any public space within the core should be a central consideration in the design and configuration of the building, to ensure that it contributes to a positive experience in the street scene, whether or not used for street dining. 6. Promote variety in the street level experience. Architectural form should recognize existing scale and diversity and build upon established design traditions, creativity and innovation in a anner which strengthens the architectural richness and identity of the city core. The contextual contribution of building and storefront design will depend on detailed consideration of the street façade and associated landscaping and paving. 7. Preserve the integrity of historic resources within the district. The original form, character, materials and details of historic resources should be maintained. This applies to individual structures of landmark quality as well as more modest "contributing"structures. The proposed renovation of 514 East Hyman Avenue will maintain the existing setback from the front property line. When viewed from Hyman Avenue, the proposed addition will have a negligible visual impact as compared with the existing condition. The addition is consistent with the stated goal of having varied building heights in the Commercial Area; the upper floor addition will add less than two feet above the height of the existing facade pediment wall but it will be set some fifteen feet further back from the street than is the pediment wall. The restored and remodeled building will be adequately shorter than the adjacent buildings (including the "iconic" Elks Building), and remain sensitive to its context. Please also refer to the responses provided above in association with all similar HPC Design Guidelines. Outlined below is each of the Commercial Core's Conceptual Review Design Guidelines in italicized print, followed by a description of the proposal's compliance and/or consistency therewith, as applicable. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 34 Street Grid 6.1 Maintain the established town grid in all projects. • The network of streets and alleys should be retained as public circulation space and for maximum public access. • Streets and alleys should not be enclosed or closed to public access, and should remain open to the sky. The footprint of this building will remain the same. This development will only restore the original building and add a third-floor that is set fifteen feet back from the front facade. Internal Walkways 6.2 Public walkways and through courts, when appropriate, should be designed to create access to additional commercial space and frontage, within the walkway and/or to the rear of the site. • See also: Public Amenity Space design guidelines. This standard has no real applicability on the subject 3,000 square foot lot occupied by a single building. Alleys 6.3 Develop an alley facade to create visual interest. • Use varied building setbacks and changes in materials to create interest and reduce perceived scale. • Balconies, court yards and decks are also appropriate. • Providing secondary public entrances is strongly encouraged along alleys. These should be clearly intended for public use, but subordinate in detail to the primary street-side entrance. The existing building fronts directly on the alley with a blank CMU wall with no windows. This lifeless wall looms large due to its complete lack of architectural interest, detailing or other mechanisms that might decrease its perceived scale. The alley side remodel has been designed to complement the Molny architecture through a contemporary interpretation aimed at consistency of solid to void ratios and fenestration patterns. Vertical siding will be used on the new elements of the north (facing the alley) facade to enhance these means of achieving consistency while being a clear product of its own time. New windows will be added to enable penetration of natural light into the interior spaces. Vertical siding around and over (ghosted windows set behind perforated siding) the new windows will be added in a manner reminiscent of the "window bank" form established on the primary/front façade. That is, rather than three separate punched openings, a feature Molny likely never would have incorporated in this building, the new windows are to be set in a band of vertical siding to give the effect of a consistent MasonMorse AspenModern Application(PID 2737-182-13-002) Page 351 solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front façade. The remodeled alley facade will also incorporate a single-stall garage as well as a recessed entrance, both even with the alley grade whereas the existing alley entrance resides five risers above grade. By achieving entrances at grade,it will feel as though the existing two-story mass has been lowered by several feet This and the architectural features described above will serve to lower the perceived mass and scale of the building along the alley while delivering visual interest where none has existed to date. Parking 6.4 Structured parking should be placed within a 'wrap' of commercial and/or residential uses. • The exposure of auto entry areas should be minimized. 6.5 Structured parking access should not have a negative impact on the character of the street The access shall be: • Located on an alley or secondary street if necessary. • Designed with the same attention to detail and materials as the primary building façade. • Integrated into the building design. The only parking space associated with this development will be the one-car garage located on the alley side of the property. Public Amenity Space 6.6 A street facing amenity space shall meet all of the following requirements: • Abut the public sidewalk • Be level with the sidewalk • Be open to the sky • Be directly accessible to the public • Be paved or otherwise landscaped 6.7 A street facing public amenity space shall remain subordinate to the line of building fronts in the Commercial Core. • Any public amenity space positioned at the street edge shall respect the character of the streetscape and ensure that street corners are well defined, with buildings placed at the sidewalk edge. • Sunken spaces, which are associated with some past developments, adversely affect the street character. Where feasible, these should be replaced with sidewalk level improvements. 6.8 Street facing amenity space shall contain features to promote and enhance its use. These may include one or more of the following: • Street furniture • Public art • Historical/interpretive marker MasonMorse AspenModem Application(PID 2737-182-13-002) Page 36 The detailed design of Public Amenity Space, with regard to guidelines 6.8, will be a matter for approval at the Final Review Stage, although it may be discussed at the Conceptual Stage. As part of the remodel, the applicant will remove all planter boxes incorporated into the existing entry plaza design as these leak and were not part of the original Molny design. The current alignment of planter boxes and staircases run contrary to the direction of the adjacent sidewalks and associated pedestrian movements, resulting in awkward and uninviting spaces. Further, the existing entry plaza does not relate to or tie in well with the immediately adjacent Elks Building plaza. The MasonMorse plaza layout will be redesigned to be much simpler, and will include ADA accessibility provisions. This remodeled public- private space will remain the same size as today but it will function well while providing an inviting dwell space that enhances the overall pedestrian experience. The resulting public amenity space will abut and be level with the sidewalk. It will be directly accessible to the public and contain benches/seating areas inviting usage and dwell time. The plaza amenity space will be open to the sky and its paving pattern will reinforce connectivity to the Elks Plaza. Strategically located planter boxes will frame seating areas and screen the ADA ramp but allow full visibility of the restored historic resource. Guidelines 6.9 through 6.17 discuss mid-block, alley-side, second-level, and front-yard amenity spaces and are not applicable to the proposed development. Building Setbacks 6.18 Maintain the alignment of facades at the sidewalk's edge. • Place as much of the façade of the building at the property line as possible. • Locating an entire building front behind the established storefront line is inappropriate. • A minimum of 70%of the front façade shall be at the property line. 6.19 A building may be set back from its side lot lines in accordance with design guidelines identified in Street & Circulation Pattern and Public Amenity Space guidelines. The proposed development will restore this building to its original form and add a third floor addition. There is no opportunity to locate the front facade of this building at the property line while still maintaining its historic integrity. Current facade alignments will be maintained. Building Orientation 6.20 Orient a new building to be parallel to its lot lines, similar to that of traditional building orientations. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 3'71 • The front of a primary structure shall be oriented to the street. 6.21 Orient a primary entrance toward the street • Buildings should have a clearly defined primary entrance. For most commercial buildings, this should be a recessed entry way. • Do not orient a primary entrance to an interior court. • Providing secondary public entrances to commercial spaces is also encouraged on larger buildings. The building will continue to be parallel to the lot lines and the primary entrance will continue to be oriented toward the street. Building Form 6.22 Rectangular forms should be dominant on Commercial Core façades. • Rectangular forms should be vertically oriented. • The façade should appear as predominantly flat, with any decorative elements and projecting or setback "articulations" appearing to be subordinate to the dominant form. As mentioned throughout this application, the proposed development will maintain and restore the original appearance of this building. The building was and will again be characterized by dominant rectangular forms that are vertically oriented. 6.23 Use flat roof lines as the dominant roof form. • A flat roof or one that gently slopes to the rear of a site, should be the dominant roof form. • Parapets on side façades should step down towards the rear of the building. • False fronts and parapets with horizontal emphasis also may be considered. The historic, flat roof line will be restored with removal of the parapet and pediment walls added in the 1990s. The result will be a front façade with nearly five feet less height The proposed addition has a flat roof as well and this is set some fifteen feet back from the front,historic facade. 6.24 Along a rear façade, using building forms that step down in scale toward the alley is encouraged • Consider using additive forms, such as sheds, stairs and decks to reduce the perceived scale. These forms should however, remain subordinate to the primary structure. • Use projecting roofs at the ground floor over entrances, decks and for separate utility structures in order to establish a human scale that invites pedestrian activity. The existing building fronts directly on the alley with a blank CMU wall with no windows. While only two stories, this lifeless wall looms large due to its MasonMorse AspenModem Application(PID 2737-182-13-002) Page 38 complete lack of architectural interest, detailing or other mechanisms that might decrease its perceived scale. The alley side remodel, while three stories in height, has been designed to complement the Molny architecture through a contemporary interpretation aimed at consistency of solid to void ratios and fenestration patterns. Vertical siding will be used on the new elements of the north (facing the alley)facade to enhance these means of achieving consistency while being a clear product of its own time. New windows will be added to enable penetration of natural light into the interior spaces. Vertical siding around and over (ghosted windows set behind perforated siding) the new windows will be added in a manner reminiscent of the "window bank" form established on the primary/front facade. That is, rather than three separate punched openings, a feature Molny likely never would have incorporated on this building, the new windows are to be set in a band of vertical siding to give the effect of a consistent solid to void pattern that compliments not only the third floor addition but also the dominant design features of the historic front façade. The remodeled alley façade will also incorporate a single-stall garage as well as a recessed entrance, both even with the alley grade whereas the existing alley entrance resides five risers above grade. By achieving entrances at grade,it will feel as though the existing two-story mass has been lowered by several feet This and the architectural features described above will serve to lower the perceived mass and scale of the building along the alley. Building Height,Mass& Scale 6.25 Maintain the average perceived scale of two-story buildings at the sidewalk. • Establish a two-story height at the sidewalk edge, or provide a horizontal design element at this level. A change in materials, or a molding at this level are examples. The two-story character of Molny's original design will be reestablished as part of the restoration effort As the illustration on Sheet A4.2.2 of the accompanying CCY Plans shows, the non-historic pediment and parapet wall additions on the building result in an inappropriately perceived, grand two-scale building at the sidewalk. The removal of these features and restoration of the original roofline will take nearly five feet off the building height and even more in perceived mass and scale at the front facade. The proposed third floor addition will have very little visual impact at the sidewalk as it will be set back fifteen (15) feet from the front facade, restoring the building's historic appearance from Hyman Avenue. Along with the fifteen foot front setback (from the street-facing facade), the third floor addition is inset from the original side walls of the building, resulting in a clear demarcation between the old and the new, subordinate form. An elevator is required to serve the remodeled MasonMorse AspenModern Application(PID 2737-182-13-002) Page 39 building and this, in turn, requires a five foot elevator overrun at the roof. To accommodate this requirement in the most sensitive possible way, the resulting form has been positioned near the center of the building,more than twelve (12)feet from the west facade, over nine (9) feet from the east facade, and nearly forty-three (43) feet back from the building's front facade (see Roof Plan, Sheet A3.5). While the elevation drawings necessarily depict these improvements in unflattering one- dimension, the reality is more accurately reflected by its complete lack of visibility in the rendered perspective drawings(Sheets A6.1 and A6.2). The third floor addition has been designed to complement the Molny architecture through consistency of shadow lines, solid to void ratios, and fenestration patterns. To enhance these means of achieving consistency while injecting a clear but compatible differentiation, vertical siding will be used on the new elements at the third floor. The design is sympathetic to the historic Elks Building, and said building will not be even slightly overwhelmed by this development. Even with the proposed addition, this building is substantially lower than the Elks Building and its stair tower annex, providing an appropriate stepping down in scale from the corner. 6.26 Building façade height shall be varied from the façade height of adjacent buildings of the same number of stories. • If an adjacent structure is three stories and 38 ft. tall, new infill may be three stories, but must vary in façade height by a minimum of 2 ft. The adjacent Elks Building is three stories and substantially greater than 40 feet tall. In fact, its stair tower annex, the portion of the structure closest to the subject site, is substantially greater than 40 feet tall. The existing parapet and pediment walls on the MasonMorse Building rise to approximately the same height as these features on the adjacent building to the west. Once these unoriginal additions are removed from the MasonMorse Building, its flat front facade roofline will be 4'-91/2° lower than is the case today. Although a third floor addition is proposed for the restored and remodeled MasonMorse Building, the addition will be set 15 feet back from the front facade and have very little visual impact from the sidewalk. Measuring 40 feet to the top of the third floor's flat roof, more than 2 feet of roofline variation will result between the subject structure and the buildings on the two flanking lots. Please refer to Sheets A4.2, A4.2.1, A4.2.2, A.61 and A6.2 of the accompanying plan set for graphic illustrations of the proposed building height in the context of surrounding development. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 40 6.27 A new building or addition should reflect the range and variation in building height of the Commercial Core. • Refer to the zone district regulations to determine the maximum height limit on the subject property. • A minimum 9 ft. floor to ceiling height is to be maintained on second stories and higher. • Additional height, as permitted in the zone district, may be added for one or more of the following reasons: - In order to achieve at least a two foot variation in height with an adjacent building. - The primary function of the building is civic. (i.e. the building is a Museum, Civic Building, Performance Hall, Fire Station, etc.) - Some portion of the property is affected by a height restriction due to its proximity to a historic resource, or location within a View Plane, therefore relief in another area may be appropriate. - To benefit the livability of Affordable Housing units. - To make a demonstrable (to be verified by the Building Department) contribution to the building's overall energy efficiency, for instance by providing improved daylighting. The maximum height in the Commercial Core for three-story elements is 38 feet, but may be increase to 42 feet through Commercial Design Review. The applicant is seeking to have the height limit established at 40 feet for this property. Allowing this building's height to be increase to 40 feet will provide a significant (i.e., at least 2 foot) variation from both of the adjacent buildings. Please also refer to the response provided above for the previous standard (6.26). 6.28 Height variation should be achieved using one or more of the following: • Vary the building height for the full depth of the site in accordance with traditional lot width. • Set back the upper floor to vary the building façade profle(s) and the roof forms across the width and the depth of the building. • Vary the façade (or parapet) heights at the front. • Step down the rear of the building towards the alley, in conjunction with other design standards and guidelines. The third floor addition is set fifteen feet back from the front facade of the building's restored flat roofline. Also, the addition is set inside the side walls of the historic building, providing a clear demarcation between the original roofline and the new addition. Guidelines 6.29 and 6.30 are concerned with lots that are more than one traditional lot width and, as such, are not applicable to this property. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 41 6.31 A new building should step down in scale to respect the height,form and scale of a historic building within its immediate setting. The proposed third-floor addition to this building will step down in scale from the Elks Building and respects the height, form and scale of that historic building. Guidelines 6.32 and 6.33 address new buildings that are adjacent to one or two story historic buildings. These guidelines are not applicable to this application as the adjacent historic building is a full three-plus story structure. 6.34 The selling of iconic historic structures should be preserved and enhanced when feasible. • On sites comprising more than two traditional lot widths, the third floor of the adjacent lot width should be set back a minimum of 15 ft from the front facade. • Step a building down in height adjacent to an iconic structure. • Locate amenity space adjacent to an iconic structure. Since the adjacent Elks Building is considered an iconic structure, the proposed third-floor addition has been designed with that building in mind. As such, the addition is set 15 feet back from its front facade, which is substantially setback from the sidewalk edge to begin with. The public amenity space for this development is adjacent to and will provide connectivity with the Elks public amenity space, thereby enhancing both spaces. D. Growth Management Approval Pursuant to Section 26.470.060 of the Code, the Community Development Director (CDD) has the ability to approve, approve with conditions, or deny certain Growth Management applications. Subsection (4) thereof allows for the approval of a minor enlargement of a Historic Landmark for commercial, lodge or mixed-use development as long as certain criteria are met. The criteria for approval are as follows: a. If the development increases either floor area or net leasable space/lodge units, but not both, then no employee mitigation shall be required. b. If the development increases both floor area and net leasable space/lodge units, up to four (4) employees generated by the additional commercial/lodge shall not require the provision of affordable housing. An expansion generating more than four (4) employees shall not qualify for this administrative approval and shall be reviewed pursuant to Paragraph 26.470.070.1. MasonMorse AspenModem Application(PID 2737-182-13-002) Page 42 c. No more than one (1) free-market residence is created. This shall be cumulative and shall include administrative GMQS approvals granted prior to the adoption of Ordinance No. 14, Series of 2007. Since the proposed development will increase FAR by approximately 1,355 square feet but will decease the net leasable area, pursuant to substandard "a" above, no employee mitigation is required. Furthermore, only one free-market residence will be created by the proposed development. The free-market residence would otherwise generate a mitigation requirement for far less than four employees anyway and, therefore, substandard "b" above would also result in a zero employee mitigation requirement. Therefore, this proposal satisfies the criteria for approval as a minor enlargement of a Historic Landmark and should be approved by the CDD concurrent with its designation. Section V: Summary It is the applicant's desire to see the building at 514 East Hyman Avenue restored and preserved via historic landmark designation under the AspenModem program. As incentives and in exchange for this restoration and perpetual preservation effort, the applicant seeks exceptionally modest benefits that are enumerated in the Code as appropriate for designated landmarks. As stated in Code Section 26.415.110, Benefits to encourage good historic preservation practices by owners of historic properties are an important aspect of Aspen's historic preservation program. Historic resources are a valuable community asset and their continued protection is the basic premise supporting the creation of an innovative package of preservation tools that are unlike any other in the country. AspenModem was adopted to address, through negotiation of incentives for designation, the negative impacts that the loss of landmark eligible buildings would have on the health, peace, safety, and general well being of the residents and visitors of Aspen, and the diminishment of Aspen's unique architectural character,livability, and attractiveness as a destination. The applicant is offering assurances for the restoration and perpetual preservation of the building at 514 East Hyman Avenue in association with certain land use entitlements. The proposal outlined herein is fully worthy of City and community support. Furthermore, and in light of recent land use decisions in the nearby vicinity of this property, it is important for the City to support the landmark designation of this building and its continued contribution to the defining character, mass and scale of the Commercial Core Historic District. MasonMorse AspenModern Application(PID 2737-182-13-002) Page 431 It is.felt that the requested incentives are not only modest but fully appropriate and warranted in an equitable exchange for providing the substantial community benefits described hereinabove and a valuable community asset by landmark designating a building whose integrity assessment will achieve a perfect score and embodies the aesthetic achievements of Robin Molny, an internationally known architect who contributed significantly to Modern Era Aspen architecture. It is hoped that the requested approvals will be granted and the property will be added to the Aspen Inventory of Historic Landmark Sites and Structures. Exhibits: • Exhibit 1: Land Use Application and Dimensional Requirements Forms; Exhibit 2: Pre-Application Conference Summary prepared by Amy Guthrie; Exhibit 3: Proof of the Applicants' Ownership; Exhibit 4: Authorization for Haas Land Planning, LLC (HLP) and Cottle Can Yaw Architects (CCY) to represent the applicant; Exhibit 5: August 29, 1980,Agreement and Associated Basement Level Plans; Exhibit 6: An executed application fee agreement; and, Exhibit 7: Mailing addresses of record for all property owners located within three-hundred feet of the subject property. Attachments: • Architectural plans prepared by Cottle Carr Yaw Architects I MasonMorse AspenModem Application(PID 2737-182-13-002) Page 441 EXHIBIT 8 s ATTACHMENT 2 - Historic Preservation Land Use Application PROJECT: p,� ;_>_- . Name: 1: c4 ofMOrS{ei BuiIdm0- Location: :7I g E +I\ man Are ` A-s pei') 0_0+ N , Blo cX T-0 (Indicate street address,lot&block number or metes and bounds description of property) Parcel ID# (REQUIRED) ! 3'7- I g j —002— /2— APPLICANT: ,rye Name: ill QS6in and 11 nrteIn c/ Co p / Address: siq E. H-yn 1n -Ave rI rJspen C 0 It01 I Phone#: 925- -ZOO Fax#:91,5-1627 E-mail: REPRESENTATIVE: Name: Razz Land Plain iv)O }I Aspen)C- CO Q' /II� Address: 20 ( N . Mil III I SI-. S-le )o4, Aspen) l_O p 1101 I Phone#: g12._5- 7 cic ( q Fax#:925-7 3 q 5 E-mail:°limas @sopris. fief TYPE OF APPLICATION: (please check all that apply): gHistoric Designation , ❑ Relocation(temporary,on ❑ Certificate of No Negative Effect ❑ or off-site) ❑ Certificate of Appropriateness ❑ Demolition(total ❑ -Minor Historic Development demolition) PZ -Major Historic Development ❑ Historic Landmark Lot Split X -Conceptual Historic Development • ❑ -Final Historic Development -Substantial Amendment EXISTING CONDrrIONS: (description of existing buildings,uses,previous approvals,etc.) COM 11)thri A \ b0 Id (r)9 CO6SM,Aded !Vi Igr71 , Ste aftlCRt,6r&4 PROPOSAL: (description of proposed buildings,uses,modifications,etc.) L drnark Des; 5na-H 04 , krova-han and -third-nnonr /lddifi'o4 (see Qftb.coca on text) Aspen Historic Preservation Land Use Application Requirements,Updated:May 29,2007 General Information Please check the appropriate boxes below and submit this page along with your application. This information will help us review your plans and, if necessary, coordinate with other agencies that may be involved YES NO ❑ Does the work you are planning include exterior work; including additions, demolitions,new construction, remodeling,rehabilitation or restoration? X ❑ Does the work you are planning include interior work;including remodeling, rehabilitation,or restoration? ❑ ❑ Do you plan other future changes or improvements that could be reviewed at this time? ❑ ❑ In addition to City of Aspen approval for a Certificate of Appropriateness or No Negative Effect and a building permit,are you seeking to meet the Secretary of the Interior's Standards for Rehabilitation or restoration of a National Register of Historic Places property in order to qualify for state or federal tax credits? ❑ ❑ If yes,are you seeking federal rehabilitation investment tax credits in conjunction with this project? (Only income producing properties listed on the National Register are eligible. Owner-occupied residential properties are not.) ❑ ❑ If yes,are you seeking the Colorado State Income Tax Credit for Historical Preservation? Please check all City of Aspen Historic Preservation Benefits which you plan to use: ❑Rehabilitation Loan Fund ❑Conservation Easement Program ❑Dimensional Variances ❑ Increased Density ❑Historic Landmark Lot Split ❑Waiver of Park Dedication Fees ❑ Conditional Uses ❑Exemption from Growth Management Quota System ❑Tax Credits Aspen Historic Preservation Land Use Application Requirements,Updated:May 29,2007 ATTACHMENT 3- Dimensional Requirements Form (Item#10 on the submittal requirements key. Not necessary for all projects.) Project: Mas(1nM0(a. Bui IdIriw Applicant: fl)0 50V1 0:~}d m f)f�-e i 7--n C, Project ' f Ave Aspen Location: S I(-I E. Fh 4 mnn M Zone /� JJ n District: Conimercial Core_, Lot Size: 3Q00 Soil in re -kP t Lot Area: 3,(9c)O salon re -°e 1– (For the purposes of calculating Floor Area,Lot Area may be reduced for areas within the high water mark,easements, and steep slopes.Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: C6 g: ,5 J 1 Proposed:"'f..2ic�'� Number of residential units: Existing: 0 Proposed: / Number of bedrooms: Existing: C Proposed: 2 Proposed%of demolition: DIMENSIONS: (write n/a where no p requirement exists in the zone district) Floor Area: Existing: V./ (11 Allowable:S 750 Proposectc77/ Height gy�pp,, ^p�I Principal Bldg.: Existing: Sb Allowable: 1 , Proposed: t Accessory Bldg.: Existing: N/A Allowable. !/A Proposed:/tt/Tt On-Site parking: Existing: 0 Required: 0 Proposed: 1 %Site coverage: Existing: Required: Proposed:140 CMrjG& %Open Space: Existing: Required: / ^ Proposed:tierse C Front Setback: Existing: Required: /WA Proposed: it Rear Setback: Existing:Va(ICUnl&Required:/")/" ` Proposed: D' Combined Front/Rear: ,f/ Indicate N. S.E.W Existing: Required: /VA Proposed: c Side Setback: Existing: 0 Required: /./4 Proposed: 0 Side Setback: Existing: CY Required: I%A Proposed: 0' Combined Sides: Existing: 0 a Required:/V/4 Proposed: Distance between Existing: /VA Required:PIA Proposed: A/A buildings: Existing non-conformities or encroachments and note if encroachment licenses have been issued: A11.ey 5774,ts wrkoRcfh tTT^ No Ltealg Variations requested(identify the exact variances needed): F n14Atr R°"3t0t 61-17741- FLiDoet kR&1 Jth 'GG utTprl. Aspen Historic Preservation Land Use Application Requirements,Updated:May 29,2007 EXHIBIT. I CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY PLANNER: Amy Guthrie, 970.429.2758 DATE: 7.29.11 PROJECT: 514 E. Hyman Avenue, Lot N, Block 94 REPRESENTATIVE: Mitch Haas, Haas Land Planning OWNER: Mason and Morse, Inc. DESCRIPTION: 514 E. Hyman is a mixed use building, constructed in 1971. The owners are interested in reconfiguring interior space and adding a free market residential unit on the roof. The property is located in the Commercial Core Historic District. Two types of review are triggered by the proposal; design review and Growth Management. The building is not currently designated a historic landmark, and the applicant could apply for the scope of work without designation. The Historic Preservation Commission would conduct the design review according to the Commercial, Lodging and Historic District Design Objectives and Guidelines. Growth Management allocation for the new free market unit would be considered a Major Planning and. Zoning Commission review, and applications are restricted to Aug. 15th or Feb. 15 submittal dates. HPC conceptual design approval must be secured before filing for GMQS review, therefore the earliest competition phase the property owner could reasonably make is February 15, 2012. Affordable housing mitigation would be required equal to 30% of the net livable area of the free market unit. This could be addressed by an on-site unit, off-site unit, affordable housing credits or cash-in-lieu payment of approximately$200,000 (assuming the new residential unit would be 2,000 square feet in size.) An alternative review option would be presented if the owner chose to voluntarily designate the property historic through the AspenModern program. 514 E. Hyman was designed by an architect who is recognized in the City of Aspen's research paper "Aspen's twentieth-century architecture: Modernism 1945-1975," which notes Robin Molny Robin Molny (1928-1997) apprenticed at Taliesin for some five years, from 1949 to c. 1954, before moving to Aspen in the mid-1950s. While passing through Aspen on trips back and forth between Wisconsin and Arizona, he met Benedict, who later called and offered him work in Aspen. Molny worked for him for a year and half, then became a registered architect, and started his own practice. Born in Cleveland, Ohio, Molny attended the Carnegie Institute of Technology in Pittsburgh before Taliesin. His Taliesin years were pivotal, coinciding with the postwar resurgence of Wright's architectural practice and planning for the construction of the Guggenheim Museum. In September 1953, Molny was one of three apprentices who traveled to New York City in the Fellowship station wagon to help to set up "Sixty Years of Living Architecture," an exhibition of Wright's architectural drawings and models. The exhibit had traveled to many cities worldwide and was going up in a temporary pavilion on the site of the new museum—sort of Wright's shot across the bow to signal New Yorkers that he was on the scene. Wright typically put an experienced apprentice in charge of constructing the Fellowship- designed Usonian houses, greatly in demand; and Molny supervised the Maurice Greenberg residence in Dousman, Wisconsin, and was working with another Taliesin apprentice in Park Ridge, Illinois, when he left for Aspen. Despite Wright's appreciation for Molny, he and Mrs. Wright did not get along, and he left Taliesin with some hard feelings. In Aspen, Molny designed several notable buildings, including the Hearthstone House (1961, enlarged 1963, 134 E. Hyman Avenue) and the Aspen Athletic Club (1976, 720 E. Hyman Avenue, with Art Yuenger). He designed area residences, including the W. Ford Schumann House, an Architectural Record house of 1975—a geometrically complex composition of stucco-battered walls that stepped up the side of the mountain. Wright told Molny, "If you understand the principles of my architecture, then your buildings need not look like mine." Molny's best known contribution to Aspen's "townscape" is the transformation of Cooper and Hyman Avenues into a pedestrian mall (1976) on which he collaborated with veteran Taliesin fellow Curtis Besinger. AspenModern offers the opportunity to access existing historic preservation incentives and negotiate other incentives to be awarded by HPC or City Council. The property is already subject to design review. Designation would require a restoration of the front façade of the building to its original appearance, seen here: HPC's approach to the placement and character of the rooftop addition would likely be the same whether the property was landmarked or not. Guaranteed incentives for designation would include administrative Growth Management approval for the new residential unit (no competition, no deadline, no GMQS review board, no affordable housing mitigation.) The Park Development Impact Fee and Transportation Demand Management Fees would be waived. If the interior remodel were to generate any new net leasable space, historic landmarks are exempt from providing affordable housing mitigation for up to the first four employees generated, which is a substantial cost savings. FAR restrictions, residential unit size caps, sign allotment, and numerous other development regulations could be discussed in the negotiation process. The proposed project may require bringing the building into conformance with accessibility and other code requirements. Relevant Land Use Code Section(s): 26.304 Common Development Review Procedures 26.415 Historic Preservation, Major Development, AspenModern 26.470.060.4 Administrative Growth Management, Minor Enlargement of an Historic Landmark for Commercial, Lodge or Mixed Use Development 26.470.080.2 Major Planning and Zoning Commission Applications, New Free-Market Residential Units within a Multi-Family or Mixed-Use Project (ONLY IF THE PROPERTY IS NOT DESIGNATED A LANDMARK) 26.515 Off-street parking 26.575.020 Calculations and Measurements 26.610 Impact fees 26.620 School Land Dedication 26.710.140 CC Zone District Review by: Staff for completeness, HPC, Council (or P&Z if the property isn't designated) Public Hearing: Yes, at HPC and Council (or P&Z if the property isn't designated) Referral Agencies: None. Planning Fees: $1,890 for 6 billable hours (additional or less billable hours are at $315 per hour) REVISED 11/16111 Referral Agency Fees: $0. Total Deposit: $1,890. ❑ Proof of ownership with payment. ❑ Signed fee agreement. ❑ Applicant's name, address and telephone number in a letter signed by the applicant which states 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 owner's right to apply for the Development Application. ❑ Total deposit for review of the application. ❑ 10 Copies of the complete application packet and maps. ❑ An 8 1/2" by 11" vicinity map locating the parcel within the City of Aspen. ❑ Site improvement survey including topography and vegetation showing the current status, including all easements and vacated rights of way, of the parcel certified by a registered land surveyor, licensed in the state of Colorado. (This requirement, or any part thereof, may be waived by the Community Development Department if the project is determined not to warrant a survey document.) ❑ A written description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. List of adjacent property owners within 300' for public hearing ❑ Copies of prior approvals. ❑ Applicants are advised that building plans will be required to meet the International Building Code as adopted by the City of Aspen, the Federal Fair Housing Act, and CRS 9.5.112. Please make sure that your application submittal addresses these building-related and accessibility regulations. You may contact the Building Department at 920-5090 for additional information. 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. EXHIBIT 3 PROFORMA TITLE REPORT SCHEDULE A 1. Effective Date: November 16,2011 at 8:00 AM Case No. PCT23332P 2. Policy or Policies to be issued: Proposed Insured: PROFORMA 3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the effective date hereof vested in: MASON&MORSE INC.,A COLORADO CORPORATION 4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is described as follows: LOT N, BLOCK 94, CITY AND TOWNSITE OF ASPEN PITKIN COUNTY TITLE,INC. 601 E.HOPKINS,ASPEN,CO.81611 970-925-1766 Phone/970-925-6527 Fax 877-217-3158 Toll Free AUTHORIZED AGENT Countersigned: s2 SCHEDULE B-SECTION 1 REQUIREMENTS THIS REPORT IS FURNISHED FOR INFORMATIONAL PURPOSES ONLY, IT IS NOT A CONTRACT TO ISSUE TITLE INSURANCE AND SHALL NOT BE CONSTRUED AS SUCH. IN THE EVENT A PROPOSED INSURED IS NAMED THE COMPANY HEREBY RESERVES THE RIGHT TO MAKE ADDITIONAL REQUIREMENTS AND/OR EXCEPTIONS AS DEEMED NECESSARY.THE RECIPIENT OF THIS INFORMATIONAL REPORT HEREBY AGREES THAT THE COMPANY HAS ISSUED THIS REPORT BY THEIR REQUEST AND ALTHOUGH WE BELIEVE ALL INFORMATION CONTAINED HEREIN IS ACCURATE AND CORRECT,THE COMPANY SHALL NOT BE CHARGED WITH ANY FINANCIAL LIABILITY SHOULD THAT PROVE TO BE INCORRECT AND THE COMPANY IS NOT OBLIGATED TO ISSUE ANY POLICIES OF TITLE INSURANCE SCHEDULE B SECTION 2 EXCEPTIONS The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies,conflicts in boundary lines, shortage in area, encroachments,any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien,or right to a lien,for services, labor,or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances,adverse claims or other matters, if any, created,first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer service or for any other special taxing district. 7. Reservations and exceptions as set forth in the Deed from the City of Aspen recorded in Book 59 at Page 66 providing as follows:'That no title shall be hereby acquired to any mine of gold, silver,cinnabar or copper or to any valid mining claim or possession held under existing laws". 8. Deed of Trust from : MASON&MORSE INC.,A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of :ALPINE BANK Original Amount :$1,000,000.00 Dated : June 3,2003 Recorded :June 8, 2003 Reception No. :483706 Modification Agreement changing various terms of the Deed of Trust above was recorded December 20, 2004 as Reception No. 505275. Modification Agreement changing various terms of the Deed of Trust above was recorded December 10, 2009 as Reception No. 565215. Modification Agreement changing various terms of the Deed of Trust above was recorded December 30, 2010 as Reception No. 576361. 9. Deed of Trust from : MASON&MORSE INC.,A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of :ALPINE BANK Original Amount :$2,300,000.00 Dated : July 8,2005 Recorded : July 14, 2008 Reception No. : 512398 (Continued) SCHEDULE B SECTION 2 EXCEPTIONS-(Continued) 10. Deed of Trust from: MASON &MORSE INC.,A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of :ALPINE BANK Original Amount :$1,000,000.00 Dated :July 16,2007 Recorded :July 23,2007 Reception No. : 540176 11. Deed of Trust from: MASON&MORSE INC.,A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of :ALPINE BANK Original Amount :$600,000.00 Dated :June 29,2009 Recorded : June 29, 2009 Reception No. :560357 Modification Agreement changing various terms of the Deed of Trust above was recorded December 10,2009 as Reception No. 565214. Modification Agreement changing various terms of the Deed of Trust above was recorded January 4, 2011 as Reception No. 576533. 12. Deed of Trust from: MASON&MORSE INC.,A COLORADO CORPORATION To the Public Trustee of the County of PITKIN For the use of :ANNE BURROWS Original Amount : $1,307,896.59 Dated : December 31,2009 Recorded :January 6, 2010 Reception No. : 565925 EXHIBIT _______k_ City of Aspen Community Development Dept. 130 S. Galena Street Aspen,CO 81611 RE: 514 East Hyman Avenue (PID# 2737482-13-002) Historic Landmark Designation, AspenModern Negotiation, Conceptual Reviews To whom it may concern: As owner of the above referenced property, I hereby authorize Haas Land Planning, LLC (HLP) and Cottle Carr Yaw (CCY)Architects to act as my designated and authorized representatives for the preparation, submittal and processing of an application requesting Historic Landmark Designation, AspenModern Negotiation, HPC Conceptual Major Development Review and Conceptual Commercial Design Review, as well as any subsequent applications or incidental approvals associated therewith. HLP and CCY are also authorized to represent us in meetings with City staff, the Housing Board, the Historic Preservation Commission, the Planning and Zoning Commission, and the Aspen City Council. Should you have any need to contact us during the course of your review, please do so through Haas Land Planning, LLC, whose address and telephone number are included with the application. Yours ul., ea pre MAT & o !`C by Bob Starodoj 514 Easy Hyman Avenue Aspen,CO 81611 (970) 925-7000 EXHIBIT 5 A G R E E M E N T This Agreement made this 25th day of August, 1980 by and between Mason & Morse, Inc. , a Colorado Corporation, its President and the City of Aspen shall come into full force and effect upon the receipt of a final Certificate of Occupancy issued by the City of Aspen Building Inspector for the building known as the Mason & Morse, Inc. building at 415 East Nyman Avenue, Aspen Colorado. This Agreement shall not be altered or changed without the consent of the City of Aspen, its respective governing bodies and Mason & Morse, Inc. To adhere to the floor area ration- as required by the City of Aspen building code and as a consideration of the remodel of the premises, Mason & Morse, Inc. , and its President hereby agree not to occupy for any or all purposes the. voided areas lying to the North of and South of the Conference Room as shown on the plans filed in the Building Inspectors Office. It is further agreed that Mason & Morse, Inc. will cause to be constructed a cinder block wall parcelling off these areas. Access doors to mechanical areas will be secured by customary locks and dead bolts for maintenance and repair only and as necessary. Any violation of the above shall be cause forrevocation of the license permitting Mason & Morse, Inc. to conduct business in the City of Aspen. ry 2 , re • DAFED: n AGREED BY: MASON & MORSE, INC.. EDWARD W. MORSE / PRESIDENT w ii ° a Z°Eg /Q` 9 i• N 2 Z6 �1{{"' j bi U a� Edo { 3 '' =th y I f `L , m ,nr53 - 51 I- • � ' {y n z N i ikt v S ' ti V t Sit .,W -......a _��II. 1•1 WIPE It i= !si•t i Y ® 3 _..ate...-.a-.• ma IA mod. r6":. if,- :q' dime - A . • .i r Ca Ate` ®. ri I 1 1_.6 , ,g i �®7�ei a;'r �tr yr; 'k s, m $-.pTam»u < . n� '�.. as Pei-- }, 1r 7- f • zx :... { jot it t X99 i 9y ` i z. I ® b I p -.21,,,"*.aiesu•:+at srr_xrc:i:i 'a :watt.:' • • f- w P z6 �� q; a ® t N z� 111 n t a 4% i I al.§ , , E al piliiil �F3 it y Ig . _ z 34 a.[t g " N, 4 a 17�tlik Sl— I �B.S �a CC — H ti „1 ° _ �= w �i _ l a u� e I,at r - d3 IL' !�' I r' a Lai • m PiTe =rf it€E a y g..--- s n ti F I • s EXHIBIT COMMUNITY DEVELOPMENT DEPARTMENT [ Jr Agreement to Pay Application Fees An agreement between the City of Aspen("City°)and Property /fit -f'- Phone No.: 7000 Owner("I'): �q,� add (Ilo rye,1,e. Email: Address of Billing Property: 9 4 E. F� ytnv A/c.. Address: Same (subject of Aspen f Co 211.11 (send bills here) application) I understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $ '4/A flat fee for . $ flat fee for . $ flat fee for . $ flat fee for . For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non-payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the \hourly rates hereinafter stated. $ 1 P110. deposit for 5tW&)hours of Community Development Department staff time. Additional time above the deposit amount will be billed at$315 per hour. $ N/A deposit for hours of Engineering Department staff time.Additional time above the deposit amount will be billed at$265 per hour. City of Aspen: Pro•erty 0 ,ner, • Chris Bendon t • �� ' i) r , Community Development Director Name: P-8 ' +90 a irsu 4ii t' ' tie- City Use: Title:OltiilEL Fees Due:$ Received:$ November.2011 City of Aspen i 130 S. Galena St. 1 (970)920-5090 EXHIBIT- ft " a H 1.. EXHIBIT 7 Mailing addresses of record for all property owners located within 300 feet of the subject property will be provided under separate cover within 60 days of the first scheduled public hearing date and/or with the affidavit of pubic notice. • Vtlib MEMORANDUM TO: Mayor Ireland and Aspen City Council THRU: Chris Bendon, Community Development Director FROM: Sara Adams, Senior Plannrrt RE: Vacation Rentals Code Amendment Second Reading, Ordinance No. 34= Series of 2011 continued public hearing from December 12, 2011 and February 13, 2012. MEETING DATE: March 26, 2012 SUMMARY: Based on comments by City Council on December 12, 2011, Staff proposes code amendment language to implement an annual vacation rental permit process that limits the number of stays per year depending upon zone district and use. BACKGROUND: During two Council worksessions in 2010 and 2011 Staff was directed to draft language that reflected the current short term rental situation. On December 12th Staff proposed a code amendment to allow vacation rentals in all zone districts through an annual permit system. During the December hearing Council requested Staff develop options and recommendations for location and frequency of rentals. Council expressed a desire to find a balance that allow rentals and preserves neighborhood character, provides safeguards for long term residents, and protects the integrity of the residential zone districts. CHANGES FROM DECEMBER 12TH Staff has revised the code amendment based on Council direction in December. Following are the major changes from December, options for Council and the Staff recommendation: Limitations - nights vs. stays: Council directed Staff to propose limitations in the residential zone district. There are three options to limit rentals: 1) limit the number of cumulative nights per year 2) limit the number of stays per year(staff recommendation) 3) cap the total number of rentals permits issued per year Staff finds that placing a cap on the number of rental permits per year, rather than the number of times a rental can occur, does not specifically address impacts on residential neighborhoods. Staff finds that regulating the number of stays per year is more sensitive to neighborhood impacts than limiting the number of nights per year. For example, a limit of 30 cumulative rental nights per year could mean 15 different families rent for 2 nights a year, which translates into 30 Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 1 of 12 check-ins and check-outs and all of the associated services such as cleaning, transportation, etc. On the other hand, limiting the number of stays per year controls the number of families but not the number of nights (as long as it is 30 days or less). For example, a limit of 6 stays per year means 6 families that could each stay between 1 and 30 nights each. The maximum number of nights for the year could be 180 nights; however a 30 day rental is arguably less impactful than a nightly rental and adds vitality to Aspen's residential neighborhoods. Limiting number of stays rather than number of nights is also easier for the public to understand and Staff to administer. Limitations - Zone Districts: Staff proposes to continue to allow unlimited rental in the lodging zone districts. These districts are primarily located at the base of Aspen Mountain and are tourist oriented. Lodging and Commercial Districts: Staff proposes to extend the unlimited rental allowance to the commercial zone districts which are located in the downtown core and are tourist oriented areas. Residential Districts: Rather than propose a different rental limitation in each specific zone district, Staff proposes the following ways to regulate residential zone districts based on Council comments: Single family and duplex dwellings: 6 rentals per year. It is challenging to propose an appropriate number of rental stays without an analysis of all of the rentals in town(which is virtually impossible considering the wide range of ways to advertise a rental and the fact that many rentals do not remit taxes or have a business license). This number is based on the following popular vacation times — 2 @ holidays, 1 @ president's day weekend, 1 @ spring break, 1 @ July 4th, 1 @ Labor Day weekend = 6 rentals per year. Multi-family dwellings: Staff finds that certain multi-family buildings should be treated different from single family and duplex uses. Based on our research and discussions with local property management companies and rental experts, most multi-family buildings currently have numerous vacation rentals each year. For example, based on 2011 rental numbers from a local property management company which was 95% multi-family units, the average number of guest stays per year are 11. The maximum number of guest stays for one multi-family unit was 28 (and 179 nights). The majority of complaints about rentals that Community Development has recorded were related to single family and duplex homes. There are three options to address multi-family dwellings: 1) Staff Recommendation - Allow unlimited rentals for multi-family buildings within the Residential Multi-family (RMF) zone district and limit multi-family in other residential zone districts. This option resembles the current conditions as evidenced by vrbo.com listings and online research. The dark red bubble below represents over 50 rentals listed Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 2 of 12 • on vrbo.com in this area. The general area, aka the East End neighborhood, is zoned RMF. Table 1: Number of properties listed on vrbo.com in February 2011. Existing Vacation Rentals by Neighborhood as Listed on www.vrbo.coni • 5 4W .h, s v']• W° � 4, l� mY . , 1+�sY °'��Y, A RMF zone 1 district «. 1. ., .. RJ4L Map represents appro.\mnmate nemgIIhorhoods and is based on Febn nnv 2011 information IIIover 50 rentals 111 30-50 rentals 10-29 rentals 0-9 rentals permitted rentals The RMF and RMFA zone districts are the only residential zones that allow multi-family buildings and as such permit a greater density and FAR. RMF is generally located on the fringe of commercial areas. The map below highlights the RMF and RMFA Districts in black and roughly outlines the Aspen Infill Area that is defined as the area between the mountain and rivers. RMF includes Aspen Villas/ Villas of Aspen, Midland Park, Truscott, portions of Aspen Highlands Village, Trustee Townhomes on the Institute campus, a small area at the base of Shadow Mountain next to the Lodge zone district, and a small portion at the Original curve. RMFA is mostly affordable housing and is entirely located outside of the Aspen Infill Area, for example Hunter Creek, and portions of Maroon Creek. Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 3 of 12 Table 2: Aspen Zone District Map,RMF and RMFA are shown in black. ,. --: :1,--i N Legend /=`' CityZone , DISTRICT R-3 HO Density Residential :i AH Affordable Housing -R■MF ResdentallMuls-Family • El i M RFAResidentiabMulb-Family ` ' j. R-6 Modem Density Residential ` R.15 Moderate Density Resdentu' r R-15-A Moderate Density Residential •- x• - R-1513 Moderate Density Residential R-30 Low Density Residential RR Rural Residential . % -t, L Lodge -CL commercial Lodge • • -CC Commercial Core R6 t• . III Commercial "'�' ' -SCI Service Commercial Industrial _-% sr NC Neighborhood Commercial CC ,- it NJ Mixed Use :� : , ' t i .,)1/1 ' ,.:. �< SKI Ski Area Base N L•r. C Conservation ,k, i• '., t �'OS Open Space I''. ` /�.?ilk PPaik '', 's IS •% 111 ;. 1A,Shildlite Preservation I F k J A Academic -`L G i� v j 4 _ . PUB Public WAI r+' Staff is supportive,of a proposal to allow unlimited rentals for multi-family buildings that are zoned RMF. This is similar to the current condition and recognizes that these areas are generally close to downtown and the mountain, and are popular, and in many cases well-established, vacation rentals. There are definite pros and cons to imposing different limitations on multi-family rentals depending on location and zoning: Pros: promotes unlimited rentals near the downtown core which may mean less transportation impacts on long term residential neighborhoods; reflects the current market which means more compliance with permit standards; allows each HOA to determine appropriate regulations for each building Cons: complex regulations; relies on the HOA to implement regulations if long term owners within multi-family buildings do not want unlimited rentals Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 4 of 12 Multi-family buildings within RMF that do not want unlimited rentals may adopt condominium restrictions that limit the number of rentals. Rental stipulations are common in condo declarations. The proposed rental permit requires HOA notification to bring awareness about a possible vacation rental in the building. Any additional requirements or limitations in the HOA documents are implemented and enforced by the HOA. This is similar to the HOA enforcing a prohibition on dogs—the City allows dogs, but an HOA may not. Staff recommends that the RMFA zone district (which is mostly affordable housing) and single family/duplex homes within the RMF district in the infill area are limited to 6 rentals per year, as prescribed for the rest of the residential zone districts. Other options for multi-family limitations include: 2) Same restriction for multi-family dwellings and single family/duplex dwellings. Treat all residential dwellings the same - impose restrictions on multi-family dwellings similar to those proposed for single family and duplex dwellings. If limitations are implemented multi-family dwellings, such as the Chateau Roaring Fork and the Chateau Eau Claire, that are located in residential zone districts may apply for rezoning to add the Lodge Overlay Zone District in order to achieve unlimited vacation rentals. This may be overly complex for many properties and Staff does not recommend this route. 3) Allow unlimited rentals in all residential zone districts. Staff originally proposed unlimited rentals, similar to the program in Breckenridge. The impacts on neighbors and neighborhood character seem to be Council's primary concerns. Council also expressed concerns about creating "mini-lodges" by allowing unlimited rentals. Staff does not recommend this option. Review standards: Previously, Staff proposed a revocable rental permit with specific review standards and unlimited rentals per year. The purpose of the extensive review standards, which addressed parking, trash, and notice to neighbors, was to mitigate impacts on neighbors and neighborhood character considering that rentals would be unlimited. During past public hearings, the public has questioned the necessity of the standards, some of which were already requirement in the Land Use Code. Staff has reduced the review standards in light of the restrictions placed on the number of rentals per year and to simplify the permit review process. The proposed review standards include HOA notification, a business license, owner representative and collection and remittance of taxes. Staff attached a draft vacation rental license to the staff memo. The review standards that were omitted — parking, trash, notice to neighbors — in addition to other relevant regulations will be summarized and attached to the issued vacation rental permit as either recommendations (i.e. notice to neighbors or onsite signage with owner representative information) or requirements (i.e. the noise ordinance,parking permits and wildlife/trash ordinance are requirements). Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 5 of 12 Audit: There needs to be a way to research a property that may be out of compliance with the limitations on rentals. The Community Development Director is authorized to audit a vacation rental to confirm compliance with the number of stays allowed per year. QUESTIONS FROM FIRST READING AND DECEMBER 12TH: Provide more information on current condition in Aspen. Staff has continued to research other communities and has met with members of the rental community to better understand the current situation and to develop a reasonable compromise for limitations on rentals. A local property management company allowed Staff access to 2011 rental records. Staff analyzed the properties that were located outside of the lodging zone districts which currently allow unlimited rentals. Of the 94 properties located outside the lodging zone districts that are managed by this company, 89 or 95% are multi-family dwelling units. According to the number of stays per year, only 2 of the 94 rentals, or 2%, are compliant with the 2 times per year limitation on short term rentals. The average number of stays per year was 11 with the maximum number of stays at 28 (179 days total) for one unit and the minimum number of stays at 2 (16 days total) for one unit. Staff has used this information and conversations with experts in the rental market to inform the proposed amendment. What are the regulations in Maui? During First Reading Councilman Johnson requested a summary of Maui's vacation rental policy. Maui has struggled with rental regulations and enforcement for decades. They receive 1,000s of complaints about rentals each year. The focus of their current code amendment is to create well managed rentals and in turn have less disturbances and complaints. A proposed code amendment is before their City Council which includes a very detailed permit review process (including over 20 review standards). Rather than limit the number of stays or the number of days that rentals are allowed each year, Maui proposes to limit the number of rental permits issued annually for each regional area. The limit on the number of permits addresses the concern that short term rentals reduce the supply of long term housing for locals (i.e. as an island Maui does not have a "downvalley" option of long term housing for locals). Permits are valid for one year and may be renewed for up to 2 or 5 years depending on compliance and location. Maui allows rentals without a permit in business districts. The proposed amendment would require a permit for rentals in the residential districts. They have not addressed multi-family buildings yet and currently issue existing non-conforming use permits for rentals in multi-family buildings that can prove an extensive short term rental history prior to 1989 when rentals became prohibited. Walk through the proposed process with a few examples. A draft vacation rental permit is attached. Here are a few different scenarios using Staff s recommended process and limitations: 1) Single family rental in West End: Becky owns a single family home in the West End (R-6 zone district) and has three trips planned this year. Becky wants to rent her house while she is out of town 3 times for one week duration each. Becky picks up a business license Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 6 of 12 and vacation rental permit application at City Hall. Becky asks her neighbor to be her designated owner representative while she is out of town. She fills out the rental permit and the business license and submits them together to the Finance window. The business license and rental permit are reviewed by Finance and sent up to the Planning Department to be reviewed by Staff. Both are signed and issued to Becky for one calendar year. 2) Multi-family rental with different property representatives: Chateau Aspen View has 10 units and is located in the RMF zone district. A property management company manages the HOA and 9 of the units. The property management company already has a valid business license and is authorized by the 9 owners to manage their units as vacation rentals. The property management company submits one vacation rental permit for the 9 units. The owner of the 10th unit decides to independently list their property on an online website as a vacation rental. The owner submits a vacation rental permit, after notifying the HOA, and a business license. The permit and license are reviewed and issued. 3) Multi-family rental in mostly long term residential building: The Happy Villas are located within the RMF zone district. The Happy Villas is mostly long term residents that do not rent their homes. The Happy Villas HOA does not want multiple renters and tourists, and decided to adopt regulations to allow only 2 vacation rentals per year. Because the multi-family building is located in the RMF zone district within the infill area, the City allows unlimited rentals. A property owner in the Happy Villas submits a business license and rental permit to the city for review. The property owner provides a copy of the letter that as submitted to the HOA regarding his application for a vacation rental permit. The City issues The permit for unlimited rentals and the HOA notifies the property owner that there is an internal limitation on vacation rentals in the Happy Villas. The property owner rents his home 2 times per year in accordance with the HOA rules. How can we ensure full compliance with the standards? Staff expects to enforce on a complaint basis, not actively looking for violations. The rental permit system will simplify enforcement. There are a few ways to promote compliance with the vacation rental standards. First, there is a revocation process where properties that are out of compliance with the rental standards may have their rental permit revoked. Operating a rental without a permit is subject to prosecution in Municipal Court. To enforce the limitation on rental stays per year, the Community Development Director may audit the annual rentals for a property. Currently, Community Development receives a complaint and runs around trying to track down the property owner (which is really difficult if it is an LLC). A certified letter is mailed requesting information about the rental and requiring compliance, if needed. If that does not work, then the matter ends up in Municipal Court. The proposed revocable permit, ability to audit and the requirement to Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 7 of 12 have a local owner's representative provides a much smoother and time efficient process if enforcement is necessary. The most important way to promote compliance with the standards is to develop a process and standards that are easy to understand and that are a reasonable compromise between the current code restrictions and the current rental market. It is important that the code amendment recognize that rentals are prevalent in Aspen while at the same time protect the residential zone districts. Adopting overly extreme limitations on the number of rentals per year may result in the same situation that the City is currently faced with: illegal vacation rentals that do not have a business license and do not submit lodging/sales tax. Are affordable housing units excluded from obtaining a vacation rental permit? No, in an effort to treat all property owners the same affordable housing units are not excluded from obtaining a vacation rental permit; however their deed restriction may allow rentals. Zoning regulations regulate the land and its uses, not the type of user. Affordable housing units should not be treated differently just because they have a deed restriction on their property. There are some older deed restrictions that permit short term rentals. Deed restricted units are required to notify their HOA of their application for a vacation rental. A leave of absence request is required to be filed with APCHA if an affordable housing resident is interested in temporarily leaving and renting out their unit. A note about notifying APCHA, and possible additional steps, is included on the vacation rental permit application. What do the neighborhoods say about whether they want rentals? There has been limited public comment from neighborhoods about the proposed code amendment. A few articles have appeared in the local newspaper which prompted some questions from the public. Staff has set up an email list and sends out regular updates to interested parties. Public letters have been included in all of the Council packets. Provide more specific information on the total cost of the program. Both Finance and Community Development Departments are involved directly with vacation rentals: Finance reviews and issues business licenses; Community Development reviews the business license for zoning compliance and, as proposed, will review and issue the vacation rental permit application for compliance with the review standards. Community Development will be charged with issuing and enforcing the vacation rental permit and Finance will be charged with issuing and enforcing a business license. An additional review by Community Development for the vacation rental permit will require a minimal amount of time, probably 10 minutes. The proposed revocable permit program should save Community Development time when a complaint is filed: an owner representative will be on file, Staff has the ability to audit a property for rental history, and enforcement procedures are clearly explained in the draft ordinance. Currently the fee to process a business license is $150. Staff does not propose any additional cost to review the vacation rental permit. Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 8 of 12 The Finance Department estimates that 1 hour will be spent on each property, including business license review and processing as well as sales and lodging tax enforcement, which would be split between two staff, for a total of$40 per property. The Finance Department will also propose hiring a third party consultant, VRCompliance, to provide a web accessible platform that will help identify property owners advertising their rental on various vacation rental websites. VRCompliance will match/compare those property owners with existing tax records, yielding a comprehensive list of property owners who list their vacation rentals but are not registered for a business license or remitting sales and lodging taxes. The estimated cost for this service in year 1 is $5,000. Explain the proposed annual renewal permit process. The proposed annual renewal process is the same as the initial permit process. Some communities allow automatic permit renewal if there are no complaints or enforcement issues the previous year. Typically the municipalities that have extensive review standards and process offer an abridged annual renewal process. Staff proposes a limited number of review criteria (business license, property representative, collection and remittance of taxes) and does not propose a shortened annual permit. Property owners are already required to get annual business licenses, so requiring an annual rental permit that is processed at the same time does not seem arduous. When the new software is implemented an online vacation rental permit application will be offered with an online business license application and renewals. Explain the steps required to exempt a portion of rentals from remitting taxes. Councilman Frisch raised the idea of providing a tax exemption to certain vacation rentals. A memo from Don Taylor, the director of Finance, is attached as Exhibit I. A tax exemption for specific rentals requires an amendment to the Municipal Code which is a first and second reading of an ordinance. A hearing and recommendation by the Planning and Zoning Commission is not required. PROPOSED CODE AMENDMENT: There are many different solutions to address vacation rentals. A draft ordinance is included that incorporates the Staff recommendations. Section 1: Section 1 of the draft ordinance proposes changes to the following terms in the definitions section of the code: hotel (aka lodge), long term, short-term, and adding the term vacation rental. The current Code defines long term as the occupancy of a dwelling unit for over six months and short term as the occupancy of a hotel or lodge for less than one month. The code amendment proposes to define long term as a rental period of a dwelling unit that is over 30 days and short term as the occupancy of a hotel, lodge or vacation rental for a period equal to or less than 30 days. Vacation rental is defined as rental of a dwelling unit for a time period equal to or less than 30 days. The Vacation Rental timeframes track with the obligation to pay sales and lodging taxes which is required for rentals of 30 days or less. Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 9 of 12 The definition of Vacation Rental specifies that a vacation rental does not include the rental of individual rooms within a residential dwelling unit to avoid any conflicts with the definition of Bed and Breakfast, which is considered a lodge use. Section 2: Section 2 of the draft ordinance proposes a new section to the Land Use Code that explains the Annual Vacation Rental Permit purpose, standards, review process, and revocation and appeal processes. Process: The vacation rental permit process applies only to residential dwelling units: timeshare units, lodges, bed and breakfasts, and hotels are exempt. A property rental that exceeds 30 days in duration does not qualify as a vacation rental and does not require a vacation rental permit (it is considered a long term rental). The rental permit is an administrative review processed simultaneously with the business license application. Review Standards: The review standards are based on past communities' experiences and the nature of complaints that the Community Development Department has received over the years. There are 4 proposed review standards including: HOA notice: If applicable, the property owner is required to submit a letter to the Homeowner's Association (HOA) providing notification of an application for a vacation rental permit. HOA consent it not required for a Vacation Rental Permit — it is not the City's policy to enforce a private HOA's declarations or covenants. Business license application: Proof of a business license application is required. An individual business license is not required for each property if the property is managed by a company that holds a valid City of Aspen business license. Local owner representative: A contact person and phone number for the property is required. The contact needs to be located within the Roaring Fork Valley and can be anyone — from the owner or a neighbor to a property management company. The owner representative's name and phone number will be listed on the city website as a contact for neighbors that have concerns or questions. A local representative will be able to address any immediate issues that arise and serve as an initial contact person for the City if a complaint is filed. Lodging and sales tax: Vacation rentals are required to comply with the City's taxpayer responsibilities listed in Section 23.08 of the Municipal Code. Renewal: Annual permit renewals are required and follow the same review process for the initial vacation rental permit. Revocation: The Community Development Director has the authority to revoke the rental permit if the standards are violated. The property owner will receive notice of a hearing with the Community Development Director and receive full opportunity to be heard and to fix the violations prior to any action being taken. Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 10 of 12 Sections 3 — 21: Sections 3 — 21 amend the zone districts' purposes and permitted uses to allow Vacation Rentals by right in accordance with the Vacation Rental Permit program. Staff proposes to allow Vacation Rentals in all zone districts that allow residential uses as a permitted use. Lodging and Commercial districts are permitted unlimited vacation rentals. Residential districts are restricted to 6 vacation rentals per year, with the exception that multi-family dwelling units within the Aspen Infill Area are permitted unlimited vacation rentals. LAND USE REQUESTS AND REVIEW PROCEDURES: Pursuant to Land Use Code §26210.020.B.19, Jurisdiction, Authority and Duties, the Community Development Director has initiated an amendment to the Land Use Code. As described in §26310.020.B.2 Procedure for amendment, City Council is asked to determine if the application meets the standards for an amendment to Land Use Code text. City Council is the final review authority. P& Z RECOMMENDATION: The Planning and Zoning Commission discussed the proposed code amendment at length and ultimately decided that the current regulation is sufficient and should be enforced. The Commission struggled with the impacts of short term rentals on residential neighborhood character and on year round residents. Minutes from the meetings were attached as Exhibit D and the resolution was attached as Exhibit C, both were provided during First Reading. Please contact Staff if you need additional copies. RECOMMENDED MOTION(ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE): "I move to approve Ordinance No. 34, Series of 2011 to amend the Land Use Code to implement a vacation rental permit process." CITY MANAGER COMMENTS: ATTACHMENTS: EXHIBIT A—Marked up version of draft Ordinance [provided during first reading] EXHIBIT B - Review Criteria [ provided during first reading] EXHIBIT C- Planning and Zoning Commission Resolution number 15, Series of 2011 [provided during first reading] EXHIBIT D —Planning and Zoning Commission meeting minutes (dated August 16, 2011, August 23, 2011 and September 6, 2011) [provided during first reading] EXHIBIT E—CAST survey [provided on December 12, 2011] EXHIBIT F—Rental map based on www.vrbo.com information from February 2011. [provided on December 12, 2011] EXHIBIT G—letters from Steve Falender dated November 12, 2011 and November 29, 2011. [provided on December 12, 2011] EXHIBIT H— Marked up version of draft Ordinance with revised language Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 11 of 12 EXHIBIT I—Memo from Don Taylor about tax exemption process. EXHIBIT J- Draft example of the vacation rental permit. EXHIBIT K- Public comment received since December 12, 2011 hearing. Exhibit L—Minutes from City Council meeting dated December 12, 2011. Third Reading Staff Memo Vacation Rentals Code Amendment 3/26/2012 Page 12 of 12 • clean WPM ORDINANCE NO. 34 SERIES OF 2011 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING SECTION 26.104.100,DEFINITIONS, VARIOUS SECTIONS OF CHAPTER 26.710,ZONE DISTRICTS, AND ADDING A NEW SECTION 26.575.220, VACATION RENTALS, TO THE MUNICIPAL CODE OF THE CITY OF ASPEN, COLORADO. WHEREAS, in accordance with Chapters 26.210 and 26.310 of the City of Aspen Municipal Code, the Director of the Community Development Department initiated amendments to the Municipal Code related to Section 26.104.100, Definitions, Chapter 26.710, Zone Districts, and adding a new Section 26.575.220, Vacation Rentals; and, WHEREAS, pursuant to Chapter 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 Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Section 26.104.100, Definitions, Chapter 26.710, Zone Districts, and adding a new Section 26.575.220, Vacation Rentals, as described herein; and, WHEREAS, the Planning and Zoning Commission held a duly noticed public hearing to consider the proposed amendments described herein on September 6, 2001, continued from August 16, 2011, August 23, 2011, July 19, 2011 and July 5, 2011, took and considered public testimony and the recommendation of the Community Development Director and recommended, by a 5— 1 vote, that City Council deny the proposed code amendments. WHEREAS, during a duly noticed public hearing on December 12, 2011, the City Council took public testimony, considered pertinent recommendations from the Community Development Director, and the Planning and Zoning Commission, and considered the 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 standards and that the approval of the Code Amendments are 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. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 1 of 20 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AS FOLLOWS: Section 1. That Section 26.104.100 of the Municipal Code of the City of Aspen, Colorado, is hereby amended to add the definition of the term "Vacation rental", and by amending the definitions of the terms, "Hotel", "Long term", and"Short term", which amended terms shall read as follows: Hotel (a.k.a. Lodge). A building or parcel containing individual units used for overnight lodging by the general public on a short-term basis for a fee, with or without kitchens within individual units, with or without meals provided and which has common reservation and cleaning services, combined utilities and on-site management and reception services. Timeshare (a.k.a. fractional) units and timeshare developments are considered hotels for the purposes of this Title. For hotels with flexible unit configurations, also known as "lock-off units," each rentable division or "key" shall constitute a lodge unit for the purposes of this Title. Unless otherwise approved pursuant to Chapter 26.590 — Timeshare Development, occupancy periods of a hotel or unit thereof, by any one (1) person or entity with an ownership interest in the hotel or units thereof, shall not exceed thirty (30) consecutive days or exceed ninety (90) days within any calendar year, regardless of the form of ownership. Occupancy periods for person or entities with no ownership interested (e.g. vacationers) shall be limited only by the ninety-days per calendar year requirement. Long term. The occupancy of a dwelling unit for residential purposes for a consecutive time period greater than thirty (30) days. Short-term. The occupancy of a hotel, lodge unit, or vacation rental for a consecutive time period equal to or lesser than thirty (30) days in duration. Vacation rental. The short term occupancy of a residential dwelling unit by the general public for a fee. A vacation rental shall not include the rental of individual rooms within a residential dwelling unit. Section 2. That the Chapter 26.575 of the Municipal Code of the City of Aspen, Colorado, is hereby amended by adding a new Section 26.575.220 which said Section shall read as follows: Sec. 26.575.220 Vacation Rentals A. Intent and purpose. The purpose of this section is to establish the procedures and standards by which Vacation Rentals (See § 26.104.100, Definitions), of residential units are permitted within the City on a short term basis. It is the City's intent to establish Vacation Rental regulations that promote a mix of lodging options that support the City of Aspen's tourism base and local economy; Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 2 of 20 that uphold the health, safety and welfare of the public; and, that protect long term residential neighborhoods by ensuring that the impacts of Vacation Rentals do not adversely affect the residents and the character of residential areas. B. Prohibitions. 1. It shall be unlawful for any person, whether a principal or agent, clerk or employee, either for him or herself, or for any other person or for anybody, corporation or otherwise, to lease or operate a Vacation Rental without first obtaining an Annual Vacation Rental Permit in accordance with the provisions of this Section or operating same in violation of the standards set forth herein. An annual Vacation Rental Permit may be obtained by an authorized representative of the property owner. 2. This section shall not apply to leases or other rental arrangements in Lodges, Timeshare Lodges, Bed and Breakfasts and Hotels. (See Section 26.104.100, Definitions, for definitions of these terms.) 3. A Short Term Rental is not permitted to rent individual rooms within a residential dwelling unit. 4. It shall be unlawful for any person, whether a principal or agent, clerk or employee, either for him or herself, or for any other person or for anybody, corporation or otherwise, to lease or operate a Vacation Rental in a Bandit Unit. C. Vacation Rental Period. A dwelling unit may be rented or leased for a short term period, which is defined as a length of time that is less than thirty (30) consecutive days, pursuant to the restrictions listed below: 1. Lodging Zone Districts (L, CL, LO, LP, SKI) may rent or lease without limitation. 2. Commercial and Mixed Use Zone Districts (CC, C-1, SCI, NC, MU) may rent or lease without limitation. 3. Residential Zone Districts (R-6, R-15, R-15A, R-15B, RMF, RMFA, AH/PUD, RR, R-3) may rent or lease as follows: a. Single family dwellings, Duplex dwellings and Multi-family dwelling units may rent or lease a maximum of 6 times per calendar year, or b. Multi-family dwelling units in the RMF zone district located within the Aspen Infill Area may rent or lease without limitation. D. Vacation Rental Standards. The following standards shall be applicable to Vacation Rentals. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 3 of 20 1. Homeowners' Association Notification. In the event that a proposed Vacation Rental is part of a common interest community and there is a Homeowners' Association, a letter shall be submitted to the Homeowners' Association providing notification of an application for a vacation rental permit. 2. Business License. Any person who owns or represents one or more Vacation Rentals shall obtain an annual City of Aspen business license pursuant to Chapter 14.08, Business Licenses, of the Municipal Code. If an individual or business entity acts as a designated representative of one or more Vacation Rentals, only one business license shall be required. However, each residential unit shall obtain a Vacation Rental Permit. 3. Local owner representative. The owner of a Vacation Rental, if residing in the Roaring Fork Valley or a designated representative of the owner residing within the Roaring Fork Valley, shall be on call to manage the Vacation Rental during any period within which the Vacation Rental is occupied. The name, phone number and address of the local owner or the local owner representative shall be provided to the Community Development Department at time of application for a Vacation Rental Permit. It is recommended, but not required, that a sign identifying the representative's name and number be posted on the property pursuant to Section 26.510.030.B.17 Property Management/Timeshare identification signs. It is the responsibility of the owner representative to inform Vacation Rental occupants about all relevant City of Aspen ordinances including, but not limited to parking, trash and noise. It is the responsibility of the owner to notify the City if there is a change in local owner representative within a reasonable timeframe. 4. Lodging and sales taxes. Vacation Rentals shall be subject to all taxpayer responsibilities set forth at Chapter 23.08, Taxpayer's Responsibilities, particularly the responsibility to collect and to remit all applicable sales and lodging taxes. E. Annual Vacation Rental Permits. 1. Applications. Applications for Annual Vacation Rental Permits shall be submitted to the Community Development Department. The application for a Vacation Rental Permit shall contain the following: a. If applicable, confirmation that notice was provided to the Home Owner's Association. b. A City of Aspen business license or application. c. e. The name, phone number and address of the owner or local owner representative. f. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 4 of 20 2. Annual permit renewal. A new application for an Annual Vacation Rental Permit shall be submitted each calendar year in accordance with the application requirements listed in Section 26.575.220(D)(1). 3. Exceptions for Multi-family dwelling units. Multi-family dwelling units within the same complex have the option to submit a consolidated Vacation Rental Permit application for multiple units managed by one local owner representative. If multi- family dwelling units use different owner representatives, separate applications shall be required. F. Review Standards. The Community Development Department shall review applications for Annual Vacation Rental Permits for conformance with the review standards listed below. A license may issue upon a determination of the following by the Community Development Department: 1. A completed application containing the information described in Section 26.575.220(D)(2). 2. Compliance with the Vacation Rental Standards set forth in Section 26.575.220(C). G. Vacation Rental Audit. The Community Development Director shall be authorized to conduct periodic audits of vacation rentals to ensure compliance with the requirements for vacation rental operations and frequency. This audit may include, but is not limited to, a record of the number of rentals per calendar year. The Community Development Director may request that information be provided within a specific time frame. H. Enforcement. Any person violating any provision of this Section 26.575.220 shall be subject to the penalty provisions of Section 26.104.040,Applicability and penalty, In addition, any Vacation Rental in violation of this Section 26.575.220, Vacation Rentals, shall be subject to a revocation of the Vacation Rental Permit as set forth herein. I. Denial and Revocation. Whenever the Community Development Director has cause to believe that any holder of an Annual Vacation Rental Permit is engaging, or is engaged, in any activity such as to preclude the issuance of a permit applied for or to warrant revocation of any permit presently held, he or she shall conduct a hearing to determine if such action shall be taken. The applicant or licensee affected shall be given adequate notice of any such hearing and be given a full opportunity to be heard and an opportunity to cure prior to denial or revocation of an Annual Vacation Rental Permit. J. Appeal. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 5 of 20 An applicant or licensee aggrieved by a determination made by the Community Development Department denying or revoking an Annual Vacation Rental Permit may appeal to the City's Administrative Hearing Officer in accordance with the procedures established by Chapter 26.316,Appeal Procedures. Section 3. That Section 26.710.040.A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.040. Medium-Density Residential (R-6). A. Purpose. The purpose of the Medium-Density Residential (R-6) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Medium- Density Residential (R-6) Zone District are generally limited to the original Aspen Townsite, contain relatively dense settlements of predominantly detached and duplex residences and are within walking distance of the center of the City. B. Permitted uses. The following uses are permitted as of right in the Medium- Density Residential (R-6) Zone District: 1. Detached residential dwelling. 2. Duplex. 3. Two (2) detached residential dwellings. 4. Home occupations. 5. Accessory buildings and uses. • 6. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. 7. Vacation rentals. Pursuant to Section 26.575.220 Section 4. That Section 26.710.050. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.050. Moderate-Density Residential (R-15). A. Purpose. The purpose of the Moderate-Density Residential (R-15) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Moderate- Density Residential (R-15) Zone District typically consist of additions to the Aspen Townsite and subdivisions on the periphery of the City. Lands within the Townsite Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 6 of 20 which border Aspen Mountain are also included in the Moderate-Density Residential (R- 15) Zone District. B. Permitted uses. The following uses are permitted as of right in the Moderate- Density Residential (R-15) Zone District. 1. Detached residential dwelling. 2. Duplex. 3. Two detached residential dwellings. 4. Home occupations. 5. Accessory buildings and uses. 6. Accessory dwelling units and carriage houses meeting the provisions of section 26.520.040 7. Vacation rentals. Pursuant to Section 26.575.220. Section 5. That Section 26.710.060.A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.060. Moderate-Density Residential (R-15A). A. Purpose. The purpose of the Moderate-Density Residential (R-15A) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Moderate- Density Residential (R-15A) Zone District are similarly situated to those in the Moderate- Density Residential (R-15) Zone District and are lands annexed from Pitkin County from Zone Districts in which duplexes are a prohibited use. B. Permitted uses. The following uses are permitted as of right in the Moderate- Density Residential (R-15A) Zone District: 1. Detached residential dwelling. 2. Duplex, provided fifty percent (50%) of the duplex units are restricted to affordable housing. 3. Two (2) detached residential dwellings. 4. Home occupations. 5. Accessory buildings and uses. 6. Accessory dwelling units and carriage houses meeting the provisions of Section 26.520. 7. Vacation rentals. Pursuant to Section 26.575.220. Section 6. That Section 26.710.070. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 7 of 20 Sec. 26.710.070. Moderate-Density Residential (R-15B). A. Purpose. The purpose of the Moderate-Density Residential (R-15B) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Lands in the Moderate-Density Residential (R-15B) Zone District are similarly situated to those in the Moderate-Density Residential (R-15) and (R- 15A) Zone Districts, but are those in which single-family structures are a permitted use and duplexes are prohibited. B. Permitted uses. The following uses are permitted as of right in the Moderate- Density Residential (R-15B) Zone District: 1. Detached residential dwelling. 2. Home occupations. 3. Accessory buildings and uses. 4. Vacation rentals. Pursuant to Section 26.575.220. Section 7. That Section 26.710.080. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.080. Low-Density Residential (R-30). A. Purpose. The purpose of the Low-Density Residential (R-30) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Low-Density Residential (R-30) Zone District are typically located along river frontages in outlying areas of the City. B. Permitted uses. The following uses are permitted as of right in the Low-Density Residential (R-30) Zone District: 1. Detached residential dwelling. 2. Duplex. 3. Home occupations. 4. Accessory buildings and uses. 5. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. 6. Vacation Rentals. Pursuant to Section 26.575.220. Section 8. That Section 26.710.090. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.090. Residential Multi-Family (RMF). Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 8 of 20 A. Purpose. The purpose of the Residential Multi-Family (RMF) Zone District is to provide for the use of land for intensive long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Residential Multi-Family (RMF) Zone District are typically those found in the Aspen infill area, within walking distance of the center of the City or lands on transit routes and other lands with existing concentrations of attached residential dwellings and mixed attached and detached residential dwellings. B. Permitted uses. The following uses are permitted as of right in the Residential Multi-Family (RMF) Zone District: 1. Detached residential dwelling. 2. Two (2) detached residential dwellings. 3. Duplex dwelling. 4. Multi-family dwellings. 5. Home occupations. 6. Accessory buildings and uses. 7. Dormitory. 8. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. 9. For historic landmark properties: bed and breakfast. 10. Vacation Rentals. Pursuant to Section 26.575.220. Section 9. That Section 26.710.100. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.100. Residential Multi-Family-A (RMFA). A. Purpose. The purpose of the Residential Multi-Family-A (RMFA) Zone District is to provide for the use of land for intensive long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Residential Multi-Family-A (RMFA) Zone District are typically those found in the Aspen infill area, within walking distance of the center of the City or lands on transit routes and other lands with existing concentrations of attached residential dwellings and mixed attached and detached residential dwellings. B. Permitted uses. The following uses are permitted as of right in the Residential Multi-Family-A (RMFA) Zone District: 1. Detached residential dwelling. 2. Two (2) detached residential dwellings. 3. Duplex dwelling. 4. Multi-family dwellings. Ordinance 34, Series of 2011 Code Amendment- vacation rentals Page 9 of 20 5. Home occupations. 6. Accessory buildings and uses. 7. Dormitory. 8. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. 9. For historic landmark properties: bed and breakfast. 10. Vacation Rentals. Pursuant to Section 26.575.220. Section 10. That Section 26.710.110. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.110. Affordable Housing/Planned Unit Development (AH/PUD). A. Purpose. The purpose of the Affordable Housing/Planned Unit Development (AH/PUD) Zone District is to provide for the use of land for the production of category affordable housing and resident occupied lots and units. The Zone District also permits a limited component of free market lots/units to offset the cost of developing affordable housing. It is contemplated that land may also be subdivided in connection with a development plan. The AH/PUD Zone District is intended for residential use primarily by permanent residents of the community and in some instances allows for short term vacation rentals. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the AH/PUD Zone District should be scattered throughout the City to ensure a mix of housing types, including those which are affordable by its working residents; at the same time the AH/PUD Zone District can protect the City's neighborhoods from rezoning pressures that other non- community-oriented Zone Districts may produce. Further, lands in the AH/PUD Zone District should be located within walking distance of the center of the City or on transit routes. B. Permitted uses. The following uses are permitted as of right in the AH/PUD Zone District: 1. Residential uses restricted to category affordable housing guidelines and resident occupied units which comply with the following requirements: a. Minimum bedroom mix. A minimum of seventy percent (70%) of the project's total bedrooms shall be deed restricted affordable housing consistent with the Affordable Housing Guidelines. The mix between categories of housing shall be consistent with the Affordable Housing Guidelines. The remaining bedrooms that are not deed restricted to affordable housing may be free market residential units. b. Permissible reduction in bedroom mix for exemplary projects. A project may 'be eligible for a reduction of the minimum affordable housing bedroom mix Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 10 of 20 requirement to a level of sixty percent (60%) of the project's total bedrooms if the applicant can demonstrate to the satisfaction of the City Council that the project meets the requirements for an exceptional project as set forth in the Affordable Housing Guidelines. 2. Home occupations. 3. Accessory buildings and uses. 4. Accessory dwelling units meeting the provisions of Chapter 26.520. 5. Vacation rentals. Pursuant to Section 26.575.220. Section 11. That Section 26.710.120. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.120. High Density Residential (R-3). A. Purpose. The purpose of the High Density Residential (R-3) Zone District is to provide for the use of land to locate manufactured housing for intensive long-term residential purposes, short term vacation rentals, and customary accessory uses and less intensive office uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. The High Density Residential (R-3) Zone District shall be located in areas where the effect on surrounding property shall be minimized, where the health, safety and general welfare of the High Density Residential (R-3) Zone District residents and others will be protected and where the topography is suitable for the permitted uses and conditional uses allowed in the High Density Residential (R-3) Zone District. B. Permitted uses. The following uses are permitted as of right in the High Density Residential (R-3) Zone District: 1. Mobile home park. 2. Home occupations. 3. Accessory buildings and uses. 4. Accessory dwelling units meeting the provisions of Chapter 26.520. 5. Vacation Rentals. Pursuant to Section 26.575.220. C. Conditional uses. The following uses are permitted as conditional uses in the High Density Residential (R-3) Zone District, subject to the standards and procedures established in Chapter 26.425: 1. Park and open use recreation site. 2. Public and private academic school. 3. Church. 4. Child care center. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 11 of 20 Section 12. That Section 26.710.130. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.130. Rural Residential (RR). A. Purpose. The purpose of the Rural Residential (RR) Zone District is to allow ' utilization of land for low density, long-term residential and short term vacation rental purposes with the recreational, institutional, public and other compatible uses customarily found in proximity to those uses allowed as permitted uses or conditional uses. B. Permitted uses. The following uses are permitted as of right in the Rural Residential (RR) Zone District: 1. Detached residential dwelling. 2. Farm building and use, provided that all such buildings and storage areas are located at least one hundred (100) feet from pre-existing dwellings on other lots. 3. Nursery. 4. Greenhouse. 5. Home occupations. 6. Accessory buildings and uses. 7. Accessory dwelling units meeting the provisions of Section 26.520.040. 8. Vacation Rental. Pursuant to Section 26.575.220. Section 13. That Section 26.710.140. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.140. Commercial Core (CC). A. Purpose. The purpose of the Commercial Core (CC) Zone District is to allow the use of land for retail, service commercial, recreation and institutional purposes within mixed-use buildings to support and enhance the business and service character in the historic central business core of the City. The district permits a mix of retail, office, lodging, affordable housing, free-market housing, and short term vacation rental uses oriented to both local and tourist populations to encourage a high level of vitality. Retail and restaurant uses are appropriate for ground floors of buildings while residential and office uses are not permitted on ground floors. B. Permitted uses. The following uses are permitted as of right in the Commercial Core (CC) Zone District: Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 12 of 20 1. Uses allowed on basement floors: Retail and restaurant uses, office uses, uses and building elements necessary and incidental to uses on other floors. 2. Uses allowed on the ground floor: Retail and restaurant uses and uses and building elements necessary and incidental to uses on other floors. Office uses are prohibited on the ground floor except within spaces set back a minimum of forty (40) feet from a street and recessed behind the front-most street-facing façade. This prohibition shall not apply to split-level buildings (see definition). Parking shall not be allowed as the sole use of the ground floor. 3. Uses allowed on upper floors: Retail and restaurant uses, office uses, lodging, timeshare lodge, affordable multi-family housing, free-market multi-family housing, vacation rentals and home occupations. 4. Uses allowed on all building levels: Retail and restaurant uses, neighborhood commercial uses, service uses, arts, cultural and civic uses, public uses, recreational uses, academic uses, child care center, accessory uses and structures, storage accessory to a permitted use, uses and building elements necessary and incidental to uses on other floors, including parking accessory to a permitted use, and farmers' market, provided that a vending agreement is obtained pursuant to Section 15.04.350(B). Section 14. That Section 26.710.150. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.150. Commercial (C-1). A. Purpose. The purpose of the Commercial (C-1) Zone District is to provide for the establishment of mixed-use buildings with commercial uses on the ground floor, opportunities for affordable and free-market residential density, and to support vacation rentals of residential dwelling units. A transition between the commercial core and surrounding residential neighborhoods has been implemented through a slight reduction in allowable floor area as compared to the commercial core, the ability to occupy the ground floor with offices, and a separate chapter in the commercial design guidelines B. Permitted uses. The following uses are permitted as of right in the Commercial (C-1) Zone District: I. Uses allowed on upper floors: Lodging, affordable multi-family housing, free- market multi-family housing, vacation rentals and home occupations. 2. Uses allowed on all building levels: Retail and restaurant uses, neighborhood commercial uses, service uses, office uses, arts, cultural and civic uses, public Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 13 of 20 uses, recreational uses, academic uses, child care center, bed and breakfast, accessory uses and structures, uses and building elements necessary and incidental to uses on other floors, including parking accessory to a permitted use, storage accessory to a permitted use, farmers' market, provided that a vending agreement is obtained pursuant to Section 15.04.350(b). Parking shall not be allowed as the sole use of the ground floor. Section 15. That Section 26.710.170. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.170. Neighborhood Commercial (NC). A. Purpose. The purpose of the Neighborhood Commercial (NC) Zone District is to provide for the establishment of mixed-use buildings with commercial uses serving the daily or frequent needs of the surrounding neighborhood, thereby reducing traffic circulation and parking problems, to provide opportunities for affordable and free-market residential density, to support vacation rentals of residential dwelling units, and to provide a transition between the commercial core and surrounding residential neighborhoods. B. Permitted uses. The following uses are permitted as of right in the Neighborhood Commercial (NC) Zone District: 1. Uses allowed on upper floors: lodging, affordable multi-family housing, free- market multi-family housing, home occupations, and vacation rentals. 2. Uses allowed on all building levels: retail and restaurant uses, neighborhood commercial uses, service uses, office uses, arts, cultural and civic uses, public uses, recreational uses, academic uses, child care center, bed and breakfast, accessory uses and structures, uses and building elements necessary and incidental to uses on other floors, including parking accessory to a permitted use, storage accessory to a permitted use, farmers' market, provided that a vending agreement is obtained pursuant to Subsection 15.04.350(b). Section 16. That Section 26.710.180. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.180. Mixed-Use (MU). A. Purpose. The purpose of the Mixed-Use (MU) Zone District is to provide for a variety of lodging, short term vacation rentals, multi-family, single-family and mixed-use buildings Ordinance 34, Series of 2011 Code Amendment- vacation rentals Page 14 of 20 with commercial uses serving the daily or frequent needs of the surrounding neighborhood, to provide a transition between the commercial core and surrounding residential neighborhoods and to provide a variety of building sizes compatible with the character of the Main Street Historic District. B. Permitted uses. The following uses are permitted as of right in the Mixed-Use (MU) Zone District: 1. On historic landmark properties: Retail and restaurant uses, neighborhood commercial uses and bed and breakfast. 2. Service uses. 3. Office uses. 4. Lodging, timeshare lodge and exempt timesharing. 5. Arts, cultural and civic uses. 6. Public uses. 7. Recreational uses. 8. Academic uses. 9. Child care center. 10. Affordable multi-family housing. 11. Free-market multi-family housing. 12. Single-family residence. 13. Duplex residence. 14. Two (2) detached single-family residences. 15. Home occupations. 16. Accessory uses and structures. 17. Storage accessory to a permitted use. 18. Vacation rentals. Pursuant to Section 26.575.220. Section 17. That Section 26.710.190. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.190. Lodge (L). A. Purpose. The purpose of the Lodge (L) Zone District is to encourage construction, renovation and operation of lodges, tourist-oriented multi-family buildings through short term vacation rentals, high occupancy timeshare facilities and ancillary uses compatible with lodging to support and enhance the City's resort economy. The City encourages high-occupancy lodging development in this zone district. Therefore, certain dimensional incentives are provided in this zone district, as well as other development incentives in Chapter 26.470, Growth Management Quota System (GMQS). B. Permitted uses. The following uses are permitted as of right in the Lodge (L) Zone District: 1. Hotel or lodge. 2. Timeshare lodge. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 15 of 20 3. Exempt timesharing. 4. Offices and activities accessory to timeshare unit sales (see Section 26.590). 5. Bed and breakfast. 6. Conference facilities. 7. Uses associated with outdoor recreation facilities and events. 8. Accessory uses and structures. (Food service for on-site lodge guests is an accessory use.) 9. Storage accessory to a permitted use. 10.Affordable multi-family housing accessory to a lodging or timeshare operation and for employees of the operation. 11. Free-market multi-family housing. 12. Home occupations. 13. Vacation rentals. Pursuant to Section 26.575.220. Section 18. That Section 26.710.200. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.200. Commercial Lodge (CL). A. Purpose. The purpose of the Commercial Lodge (CL) Zone District is to provide for the establishment of mixed-use commercial and lodge development by permitting commercial uses on the ground floor with lodging development above. The City encourages high-occupancy lodging development in this zone district through hotel, lodge and timeshare uses and short term vacation rentals B. Permitted uses. The following uses are permitted as of right in the Commercial Lodge (CL) Zone District: 1. Uses allowed in basement and ground floors: Those uses allowed in Basement and Ground Floors, respectively, within the Commercial Core Zone District. Uses and facilities necessary and incidental to uses on Upper Floors. Parking shall not be allowed as the sole use of the ground floor. 2. Uses allowed on upper floors: Hotel or lodge, timeshare lodge, exempt timesharing, offices and activities accessory to timeshare unit sales (see Chapter 26.590), conference facilities, accessory uses, storage accessory to a permitted use, affordable multi-family housing, free-market multi-family housing, vacation rentals (Food service for on-site lodge guests is an accessory use.) Section 19. That Section 26.710.310. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 16 of 20 Sec. 26.710.310. Lodge Overlay (LO) Zone District. A. Purpose. The purpose of the Lodge Overlay (LO) Zone District is to provide for lodge uses and short term vacation rentals in areas of the City suitable for lodge accommodations but which lie in predominantly residential neighborhoods or where there are limitations on development that necessitate the permitted density to be significantly less than that in the City's other lodge Zone Districts. B. Permitted uses. The following uses are permitted as of right in the Lodge Overlay (LO) Zone District: 1. The uses permitted in the underlying zone district. 2. Hotel or lodge. 3. Timeshare lodge. 4. Exempt timesharing. 5. Bed and breakfast. 6. Offices and activities accessory to timeshare unit sales (see Chapter 26.590). 7. Conference facilities. 8. Uses associated with outdoor recreation facilities and events. 9. Accessory uses and structures. (Food service for on-site lodge guests is an accessory use.) 10. Storage accessory to a permitted use. 11. Affordable housing accessory to a lodging or timeshare operation and for employees of the operation. 12. Free-market multi-family housing. 13. Vacation rentals. Pursuant to Section 26.575.220. Section 20. That Section 26.710.320. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.320. Lodge Preservation Overlay (LP) Zone District. . A. Purpose. The purpose of the Lodge Preservation (LP) Overlay Zone District is to provide for and protect small lodge uses on properties historically used for lodge accommodations, to permit redevelopment of these properties to accommodate lodge and affordable housing uses, to provide uses accessory and normally associated with lodge and affordable housing development, to permit short term vacation rentals of residential units, to encourage development which is compatible with the neighborhood and respective of the manner in which the property has historically operated and to provide an incentive for upgrading existing lodges on site or onto adjacent properties. B. Permitted uses. The following uses are permitted as of right in the Lodge Preservation (LP) Overlay Zone District: 1. The uses permitted in the underlying zone district. 2. Hotel or lodge. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 17 of 20 3. Timeshare lodge. 4. Exempt timesharing. 5. Bed and breakfast. 6. Dormitory. 7. Offices and activities accessory to timeshare unit sales (see Chapter 26.590). 8. Conference facilities. 9. Uses associated with outdoor recreation facilities and events. 10. Accessory uses and structures. (Food service for on-site lodge guests is an accessory use.) 11. Storage accessory to a permitted use. 12. Affordable housing accessory to a lodging or timeshare operation and for employees of the operation. 13. Free-market multi-family housing. 14. Vacation rentals. Pursuant to Section 26.575.220. Section 21. That Section 26.710.330. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.330. Ski Area Base (SKI). A. Purpose. The purpose of the Ski Area Base (SKI) Zone District is to provide for areas which allow for a mixture of uses related to ski area uses and operations including, skiing and appurtenant uses and structures, ski area administrative offices, recreation, lodge/hotel, retail, restaurant and bar uses, tourist-oriented service uses, residential uses, and short term vacation rentals. It is intended that this Zone District will apply to areas located at the base of ski areas and all development within this district will be master planned through a planned unit development (PUD) process. B. Permitted uses. The following uses are permitted as of right in the Ski Area Base (SKI) Zone District: 1. Alpine and Nordic ski areas, related uses and support facilities typically associated with the uses and operations of ski areas. 2. Lodge units. 3. Hotel. 4. Multi-family dwellings. 5. Detached residential or duplex dwellings. 6. Dining rooms, customary accessory commercial uses, laundry and recreational facilities located on the same site of and for guests of lodge units, hotels and dwelling units. 7. Accessory residential dwellings restricted to Affordable Housing Guidelines and Section 26.520.040. 8. Ski area administrative offices. 9. Restaurants and bars. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 18 of 20 10. Special events associated with ski areas including such events as ski races, bicycle races and concerts; with special event committee review. 11. Parks, outdoor recreational uses and trails. 12. Recreational facility. 13. Retail establishments. 14. Public transportation stop. 15. Terminal building and transportation related facilities. 16. Medical clinic accessory to the ski area. 17. Fire, police and emergency services facilities. 18. Accessory buildings and uses. 19. Outdoor vendor carts or areas for food and beverages sales and preparation. 20. Timeshare lodge. 21. Exempt timesharing. 22. Vacation rentals. Pursuant to Section 26.575.220. Section 22. Effect Upon Existing Litigation. 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 23. Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 24. Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty(30) days following final passage. Section 25. Notice of Public Hearing. A public hearing on this ordinance shall be held on the 12th day of December, 2011, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, 130 S. Galena St., Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 19 of 20 FIRST READING OF THIS ORDINANCE WAS INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 14th day of November,2011. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY, adopted, passed and approved this_day of ,20_ Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Approved as to form: City Attorney Ordinance 34, Series of 2011 Code Amendment-vacation rentals Page 20 of 20 otimiiit ORDINANCE NO. 34 17• ifr • Ile SERIES OF 2011 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING SECTION 26.104.100,DEFINITIONS, VARIOUS SECTIONS OF CHAPTER 26.710,ZONE DISTRICTS, AND ADDING A NEW SECTION 26.575.220, VACATION RENTALS, TO THE MUNICIPAL CODE OF THE CITY OF ASPEN, COLORADO. WHEREAS, in accordance with Chapters 26.210 and 26.310 of the City of Aspen Municipal Code, the Director of the Community Development Department initiated amendments to the Municipal Code related to Section 26.104.100, Definitions, Chapter 26.710, Zone Districts, and adding a new Section 26.575.220, Vacation Rentals; and, WHEREAS, pursuant to Chapter 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 Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code Section 26.104.100, Definitions, Chapter 26.710, Zone Districts, and adding a new Section 26.575.220, Vacation Rentals, as described herein; and, WHEREAS, the Planning and Zoning Commission held a duly noticed public hearing to consider the proposed amendments described herein on September 6, 2001, continued from August 16, 2011, August 23, 2011, July 19, 2011 and July 5, 2011, took and considered public testimony and the recommendation of the Community Development Director and recommended, by a 5 — 1 vote, that City Council deny the proposed code amendments. WHEREAS, during a duly noticed public hearing on December 12, 2011, the City Council took public testimony, considered pertinent recommendations from the Community Development Director, and the Planning and Zoning Commission, and considered the 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 standards and that the approval of the Code Amendments are 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. Ordinance 34, Series of 2011 (marked-up version) Code Amendment- vacation rentals Page 1 of 21 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,AS FOLLOWS: Section 1. That Section 26.104.100 of the Municipal Code of the City of Aspen, Colorado, is hereby amended to add the definition of the term "Vacation rental", and by amending the definitions of the terms, "Hotel", "Long term", and "Short term", which amended terms shall read as follows: Hotel (a.k.a. Lodge). A building or parcel containing individual units used for overnight lodging by the general public on a short-term basis for a fee, with or without kitchens within individual units, with or without meals provided and which has common reservation and cleaning services, combined utilities and on-site management and reception services. Timeshare (a.k.a. fractional) units and timeshare developments are considered hotels for the purposes of this Title. For hotels with flexible unit configurations, also known as "lock-off units," each rentable division or "key" shall constitute a lodge unit for the purposes of this Title. Unless otherwise approved pursuant to Chapter 26.590 — Timeshare Development, occupancy periods of a hotel or unit thereof, by any one (1) person or entity with an ownership interest in the hotel or units thereof, shall not exceed thirty (30) consecutive days or exceed ninety (90) days within any calendar year, regardless of the form of ownership. Occupancy periods for person or entities with no ownership interested (e.g. vacationers) shall be limited only by the ninety-days per calendar year requirement. Long term. The occupancy of a dwelling unit for residential purposes for a consecutive time period greater than thirty (30) days. Short-term. The occupancy of a hotel, lodge unit, or vacation rental for a consecutive time period equal to or lesser than thirty (30) days in duration. Vacation rental. The short term occupancy of a residential dwelling unit by the general public for a fee. A vacation rental shall not include the rental of individual rooms within a residential dwelling unit. Section 2. That the Chapter 26.575 of the Municipal Code of the City of Aspen, Colorado, is hereby amended by adding a new Section 26.575.220 which said Section shall read as follows: Sec. 26.575.220 Vacation Rentals A. Intent and purpose. The purpose of this section is to establish the procedures and standards by which Vacation Rentals (See § 26.104.100,Definitions), of residential units are permitted within the City on a short term basis. It is the City's intent to establish Vacation Rental regulations that promote a mix of lodging options that support the City of Aspen's tourism base and local economy; Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 2 of 21 that uphold the health, safety and welfare of the public; and, that protect long term residential neighborhoods by ensuring that the impacts of Vacation Rentals do not adversely affect the residents and the character of residential areas. B. Prohibitions. 1. It shall be unlawful for any person, whether a principal or agent, clerk or employee, either for him or herself, or for any other person or for anybody, corporation or otherwise, to lease or operate a Vacation Rental without first obtaining an Annual Vacation Rental Permit in accordance with the provisions of this Section or operating same in violation of the standards set forth herein. An annual Vacation Rental Permit may be obtained by an authorized representative of the property owner. 2. This section shall not apply to leases or other rental arrangements in Lodges, Timeshare Lodges, Bed and Breakfasts and Hotels. (See Section 26.104.100, Definitions, for definitions of these terms.) 3. A Short Term Rental is not permitted to rent individual rooms within a residential dwelling unit. 4. It shall be unlawful for any person, whether a principal or agent, clerk or employee, either for him or herself, or for any other person or for anybody, corporation or otherwise, to lease or operate a Vacation Rental in a Bandit Unit. C. Vacation Rental Period. A dwelling unit may be rented or leased for a short term period, which is defined as a length of time that is less than thirty (30) consecutive days,pursuant to the restrictions listed below: 1. Lodging Zone Districts (L, CL, LO, LP, SKI) may rent or lease without limitation. 2. Commercial and Mixed Use Zone Districts (CC, C-1, SCI, NC, MU) may rent or lease without limitation. 3. Residential Zone Districts (R-6, R-15, R-15A, R-15B, RMF, RMFA, AH/PUD, RR, R-3)may rent or lease as follows: a. Single family dwellings, Duplex dwellings and Multi-family dwelling units may rent or lease a maximum of 6 times per. calendar year, or b. Multi-family dwelling units in the RMF zone district located within the Aspen Infill Area may rent or lease without limitation. D. Vacation Rental Standards. The following standards shall be applicable to Vacation Rentals. Ordinance 34, Series of 201 1 (marked-up version) Code Amendment- vacation rentals Page 3 of 21 I 1. Homeowners' Association Notification. In the event that a proposed Vacation Rental is part of a common interest community and there is a Homeowners' Association, a letter shall be submitted to the Homeowners' Association providing notification of an application for a vacation rental permit. 2. Business License. Any person who owns or represents one or more Vacation Rentals shall obtain an annual City of Aspen business license pursuant to Chapter 14.08, Business Licenses, of the Municipal Code. If an individual or business entity acts as a designated representative of one or more Vacation Rentals, only one business license shall be required. However, each residential unit shall obtain a Vacation Rental Permit. 3. Parking requirement. Vacation Rentals shall provide adequate off street parking in compliance with Section 26.515, Off street Parking, or on street parking in compliance with Section 24.16.060, Residontial guest permit and/or Section 24.16.070, Lodge guest permit. 4. Trash/storage requirement. Vacation Rentals shall provide clearly defined trash and recycle area and Wildlife Resistant Trash and Recycling Enclosures, as specified in Chapter 12.08, Wildlife Protection. 5,3_ Local owner representative. The owner of a Vacation Rental, if residing in the Roaring Fork Valley or -a designated representative of the owner residing within the Roaring Fork Valley, shall be on call to manage the Vacation Rental during any period within which the Vacation Rental is occupied. The name, phone number and address of the local owner or the local owner representative shall be provided to the Community Development Department at time of application for a Vacation Rental Permit and posted on the City wcbsitc. It is recommended, but not required, that a sign identifying the representative's name and number be posted on the property pursuant to Section 26.510.030.B.17 Property Management/Timeshare identification signs. It is the responsibility of the owner representative to inform Vacation Rental occupants about all relevant City of Aspen ordinances including, but not limited to parking, trash and noise. It is the responsibility of the owner to notify the City if there is a change in local owner representative within a reasonable timeframe. 64. Lodging and sales taxes. Vacation Rentals shall be subject to all taxpayer responsibilities set forth at Chapter 23.08, Taxpayer's Responsibilities, particularly the responsibility to collect and to remit all applicable sales and lodging taxes. 7. Notice. Mail notice to neighbors adjacent parcels, as defined in Section 26.104.100 Definitions, to the Vacation Rental notifying neighbors that (i) the Community Development Department issued a Vacation Rental Permit for the subject property; and, (ii) the name and contact information for the local owner Ordinance 34, Series of 2011 (marked-up version) Code Amendment -vacation rentals Page 4 of 21 representative. It is the responsibility of the owner to re notify neighbors upon a E. Annual Vacation Rental Permits. 1. Applications. Applications for Annual Vacation Rental Permits shall be submitted to the Community Development Department. The application for a Vacation Rental Permit shall contain the following: a. If applicable, confirmation that notice was provided to the Home Owner's Association. b. A City of Aspen business license or application.- c. . .' ' -- - • .. -- - d. Evidence as required by the Community Development Department of a wildlife resistant refuse container or dumpstcr enclosure that meets the requirements of Municipal Code Section 12.08 Wildlife Protection. e. The name, phone number and address of the owner or local owner representative. f. . '_ . . . .. . - .. 2. Annual permit renewal. A new application for an Annual Vacation Rental Permit shall be submitted each calendar year in accordance with the following application requirements listed in Section 26.575.220(D)(1). 3. Exceptions for Multi family dwelling units. Multi-family dwelling units within the same complex have the option to submit a consolidated Vacation Rental Permit application for multiple units managed by one local owner representative. If multi- family dwelling units use different owner representatives, separate applications shall be required. a. Multi family units are not required to provide notice pursuant to Section 26.575.220(C)(7). b. Single family and duplex dwelling units in Lodging Zone Districts are not required to provide notice pursuant to Section 26.575.220(C)(7). FE. Review Standards. The Community Development Department shall review applications for Annual Vacation Rental Permits for conformance with the review standards listed below. A license may issue upon a determination of the following by the Community Development Department: 1. A completed application containing the information described in Section 26.575.220(D)(2). 2. Compliance with the Vacation Rental Standards set forth in Section 26.575.220(C). Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 5 of 21 G. Vacation Rental Audit. The Community Development Director shall be authorized to conduct periodic audits of vacation rentals to ensure compliance with the requirements for vacation rental operations and frequency. This audit may include, but is not limited to, a record of the number of rentals per calendar year. The Community Development Director may request that information be provided within a specific time frame. HE. Enforcement. Any person violating any provision of this Section 26.575.220 shall be subject to the penalty provisions of Section 26.104.040,Applicability and penalty, In addition, any Vacation Rental in violation of this Section 26.575.220, Vacation Rentals, shall be subject to a revocation of the Vacation Rental Permit as set forth herein. IG. Denial and Revocation. Whenever the Community Development Director has cause to believe that any holder of an Annual Vacation Rental Permit is engaging, or is engaged, in any activity such as to preclude the issuance of a permit applied for or to warrant revocation of any permit presently held, he or she shall conduct a hearing to determine if such action shall be taken. The applicant or licensee affected shall be given adequate notice of any such hearing and be given a full opportunity to be heard and an opportunity to cure prior to denial or revocation of an Annual Vacation Rental Permit. Jl€I. Appeal. An applicant or licensee aggrieved by a determination made by the Community Development Department denying or revoking an Annual Vacation Rental Permit may appeal to the City's Administrative Hearing Officer in accordance with the procedures established by Chapter 26.316,Appeal Procedures. Section 3. That Section 26.710.040.A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: • Sec. 26.710.040. Medium-Density Residential(R-6). A. Purpose. The purpose Qf the Medium-Density Residential (R-6) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 6 of 21 proximity to residential uses are included as conditional uses. Lands in the Medium- Density Residential (R-6) Zone District are generally limited to the original Aspen Townsite, contain relatively dense settlements of predominantly detached and duplex residences and are within walking distance of the center of the City. B. Permitted uses. The following uses are permitted as of right in the Medium- Density Residential (R-6) Zone District: 1. Detached residential dwelling. 2. Duplex. 3. Two (2) detached residential dwellings. 4. Home occupations. 5. Accessory buildings and uses. 6. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. 7. Vacation rentals. Pursuant to Section 26.575.220 Section 4. That Section 26.710.050. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.050. Moderate-Density Residential(R-15). A. Purpose. The purpose of the Moderate-Density Residential (R-15) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Moderate- Density Residential (R-15) Zone District typically consist of additions to the Aspen Townsite and subdivisions on the periphery of the City. Lands within the Townsite which border Aspen Mountain are also included in the Moderate-Density Residential (R- 15)Zone District. B. Permitted uses. The following uses are permitted as of right in the Moderate- Density Residential (R-15) Zone District. 1. Detached residential dwelling. 2. Duplex. 3. Two detached residential dwellings. 4. Home occupations. 5. Accessory buildings and uses. 6. Accessory dwelling units and carriage houses meeting the provisions of section 26.520.040 7. Vacation rentals. Pursuant to Section 26.575.220. Section 5. Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 7 of 21 That Section 26.710.060.A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.060. Moderate-Density Residential (R-15A). A. Purpose. The purpose of the Moderate-Density Residential (R-15A) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Moderate- Density Residential (R-15A) Zone District are similarly situated to those in the Moderate- Density Residential (R-15) Zone District and are lands annexed from Pitkin County from Zone Districts in which duplexes are a prohibited use. B. Permitted uses. The following uses are permitted as of right in the Moderate- Density Residential (R-15A) Zone District: 1. Detached residential dwelling. 2. Duplex, provided fifty percent (50%) of the duplex units are restricted to affordable housing. 3. Two (2) detached residential dwellings. 4. Home occupations. 5. Accessory buildings and uses. 6. Accessory dwelling units and carriage houses meeting the provisions of Section 26.520. 7. Vacation rentals. Pursuant to Section 26.575.220. Section 6. That Section 26.710.070. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.070. Moderate-Density Residential (R-15B). A. Purpose. The purpose of the Moderate-Density Residential (R-15B) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Lands in the Moderate-Density Residential (R-15B) Zone District are similarly situated to those in the Moderate-Density Residential (R-15) and (R- 15A) Zone Districts, but are those in which single-family structures are a permitted use and duplexes are prohibited. B. Permitted uses. The following uses are permitted as of right in the Moderate- Density Residential (R-15B) Zone District: 1. Detached residential dwelling. 2. Home occupations. 3. Accessory buildings and uses. 4. Vacation rentals. Pursuant to Section 26.575.220. Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 8 of 21 Section 7. That Section 26.710.080. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.080. Low-Density Residential (R-30). A. Purpose. The purpose of the Low-Density Residential (R-30) Zone District is to provide areas for long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Low-Density Residential (R-30) Zone District are typically located along river frontages in outlying areas of the City. B. Permitted uses. The following uses are permitted as of right in the Low-Density Residential (R-30) Zone District: 1. Detached residential dwelling. 2. Duplex. 3. Home occupations. 4. Accessory buildings and uses. 5. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. 6. Vacation Rentals. Pursuant to Section 26.575.220. Section 8. That Section 26.710.090. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.090. Residential Multi-Family (RMF). A. Purpose. The purpose of the Residential Multi-Family (RMF) Zone District is to provide for the use of land for intensive long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Residential Multi-Family (RMF) Zone District are typically those found in the Aspen infill area, within walking distance of the center of the City or lands on transit routes and other lands with existing concentrations of attached residential dwellings and mixed attached and detached residential dwellings. B. Permitted uses. The following uses are permitted as of right in the Residential Multi-Family (RMF) Zone District: 1. Detached residential dwelling. 2. Two (2) detached residential dwellings. 3. Duplex dwelling. 4. Multi-family dwellings. 5. Home occupations. Ordinance 34, Series of 201 1 (marked-up version) Code Amendment-vacation rentals Page 9 of 21 6. Accessory buildings and uses. 7. Dormitory. 8. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. 9. For historic landmark properties: bed and breakfast. 10. Vacation Rentals. Pursuant to Section 26.575.220. Section 9. That Section 26.710.100. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.100. Residential Multi-Family-A (RMFA). A. Purpose. The purpose of the Residential Multi-Family-A (RMFA) Zone District is to provide for the use of land for intensive long-term residential purposes, short term vacation rentals, and customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Residential Multi-Family-A (RMFA) Zone District are typically those found in the Aspen infill area, within walking distance of the center of the City or lands on transit routes and other lands with existing concentrations of attached residential dwellings and mixed attached and detached residential dwellings. B. Permitted uses. The following uses are permitted as of right in the Residential Multi-Family-A (RMFA) Zone District: 1. Detached residential dwelling. 2. Two (2) detached residential dwellings. 3. Duplex dwelling. 4. Multi-family dwellings. 5. Home occupations. 6. Accessory buildings and uses. 7. Dormitory. 8. Accessory dwelling units and carriage houses meeting the provisions of Chapter 26.520. 9. For historic landmark properties: bed and breakfast. 10. Vacation Rentals. Pursuant to Section 26.575.220. Section 10. That Section 26.710.110. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.110. Affordable Housing/Planned Unit Development (AH/PUD). Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 10 of 21 A. Purpose. The purpose of the Affordable Housing/Planned Unit Development (AH/PUD) Zone District is to provide for the use of land for the production of category affordable housing and resident occupied lots and units. The Zone District also permits a limited component of free market lots/units to offset the cost of developing affordable housing. It is contemplated that land may also be subdivided in connection with a development plan. The AH/PUD Zone District is intended for residential use primarily by permanent residents of the community and in some instances allows for short term vacation rentals. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the AH/PUD Zone District should be scattered throughout the City to ensure a mix of housing types, including those which are affordable by its working residents; at the same time the AH/PUD Zone District can protect the City's neighborhoods from rezoning pressures that other non- community-oriented Zone Districts may produce. Further, lands in the AH/PUD Zone District should be located within walking distance of the center of the City or on transit routes. B. Permitted uses. The following uses are permitted as of right in the AH/PUD Zone District: 1. Residential uses restricted to category affordable housing guidelines and resident occupied units which comply with the following requirements: a. Minimum bedroom mix. A minimum of seventy percent (70%) of the project's total bedrooms shall be deed restricted affordable housing consistent with the Affordable Housing Guidelines. The mix between categories of housing shall be consistent with the Affordable Housing Guidelines. The remaining bedrooms that are not deed restricted to affordable housing may be free market residential units. b. Permissible reduction in bedroom mix for exemplary projects. A project may be eligible for a reduction of the minimum affordable housing bedroom mix requirement to a level of sixty percent (60%) of the project's total bedrooms if the applicant can demonstrate to the satisfaction of the City Council that the project meets the requirements for an exceptional project as set forth in the Affordable Housing Guidelines. 2. Home occupations. 3. Accessory buildings and uses. 4. Accessory dwelling units meeting the provisions of Chapter 26.520. 5. Vacation rentals. Pursuant to Section 26.575.220. Section 11. That Section 26.710.120. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 11 of 21 Sec. 26.710.120. High Density Residential (R-3). A. Purpose. The purpose of the High Density Residential (R-3) Zone District is to provide for the use of land to locate manufactured housing for intensive long-term residential purposes, short term vacation rentals, and customary accessory uses and less intensive office uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. The High Density Residential (R-3) Zone District shall be located in areas where the effect on surrounding property shall be minimized, where the health, safety and general welfare of the High Density Residential (R-3) Zone District residents and others will be protected and where the topography is suitable for the permitted uses and conditional uses allowed in the High Density Residential (R-3) Zone District. B. Permitted uses. The following uses are permitted as of right in the High Density Residential (R-3) Zone District: 1. Mobile home park. 2. Home occupations. 3. Accessory buildings and uses. 4. Accessory dwelling units meeting the provisions of Chapter 26.520. 5. Vacation Rentals. Pursuant to Section 26.575.220. C. Conditional uses. The following uses are permitted as conditional uses in the High Density Residential (R-3) Zone District, subject to the standards and procedures established in Chapter 26.425: 1. Park and open use recreation site. 2. Public and private academic school. 3. Church. 4. Child care center. Section 12. That Section 26.710.130. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.130. Rural Residential (RR). A. Purpose. The purpose of the Rural Residential (RR) Zone District is to allow utilization of land for low density, long-term residential and short term vacation rental purposes with the recreational, institutional, public and other compatible uses customarily found in proximity to those uses allowed as permitted uses or conditional uses. B. Permitted uses. The following uses are permitted as of right in the Rural Residential (RR)Zone District: Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 12 of 21 1. Detached residential dwelling. 2. Farm building and use, provided that all such buildings and storage areas are located at least one hundred (100) feet from pre-existing dwellings on other lots. 3. Nursery. 4. Greenhouse. 5. Home occupations. 6. Accessory buildings and uses. 7. Accessory dwelling units meeting the provisions of Section 26.520.040. 8. Vacation Rental. Pursuant to Section 26.575.220. Section 13. That Section 26.710.140. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.140. Commercial Core (CC). A. Purpose. The purpose of the Commercial Core (CC) Zone District is to allow the use of land for retail, service commercial, recreation and institutional purposes within mixed-use buildings to support and enhance the business and service character in the historic central business core of the City. The district permits a mix of retail, office, lodging, affordable housing, free-market housing, and short term vacation rental uses oriented to both local and tourist populations to encourage a high level of vitality. Retail and restaurant uses are appropriate for ground floors of buildings while residential and office uses are not permitted on ground floors. B. Permitted uses. The following uses are permitted as of right in the Commercial Core (CC) Zone District: 1. Uses allowed on basement floors: Retail and restaurant uses, office uses, uses and building elements necessary and incidental to uses on other floors. 2. Uses allowed on the ground floor: Retail and restaurant uses and uses and building elements necessary and incidental to uses on other floors. Office uses are prohibited on the ground floor except within spaces set back a minimum of forty (40) feet from a street and recessed behind the front-most street-facing facade. This prohibition shall not apply to split-level buildings (see definition). Parking shall not be allowed as the sole use of the ground floor. 3. Uses allowed on upper floors: Retail and restaurant uses, office uses, lodging, timeshare lodge, affordable multi-family housing, free-market multi-family housing, vacation rentals and home occupations. 4. Uses allowed on all building levels: Retail and restaurant uses, neighborhood commercial uses, service uses, arts, cultural and civic uses, public uses, recreational Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 13 of 21 uses, academic uses, child care center, accessory uses and structures, storage accessory to a permitted use, uses and building elements necessary and incidental to uses on other floors, including parking accessory to a permitted use, and farmers' market, provided that a vending agreement is obtained pursuant to Section 15.04.350(B). Section 14. That Section 26.710.150. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.150. Commercial(C-1). A. Purpose. The purpose of the Commercial (C-1) Zone District is to provide for the establishment of mixed-use buildings with commercial uses on the ground floor, opportunities for affordable and free-market residential density, and to support vacation rentals of residential dwelling units. A transition between the commercial core and surrounding residential neighborhoods has been implemented through a slight reduction in allowable floor area as compared to the commercial core, the ability to occupy the ground floor with offices, and a separate chapter in the commercial design guidelines B. Permitted uses. The following uses are permitted as of right in the Commercial (C-1) Zone District: 1. Uses allowed on upper floors: Lodging, affordable multi-family housing, free- market multi-family housing, vacation rentals and home occupations. 2. Uses allowed on all building levels: Retail and restaurant uses, neighborhood commercial uses, service uses, office uses, arts, cultural and civic uses, public uses, recreational uses, academic uses, child care center, bed and breakfast, accessory uses and structures, uses and building elements necessary and incidental to uses on other floors, including parking accessory to a permitted use, storage accessory to a permitted use, farmers' market, provided that a vending agreement is obtained pursuant to Section 15.04.350(b). Parking shall not be allowed as the sole use of the ground floor. Section 15. That Section 26.710.170. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.170. Neighborhood Commercial (NC). Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 14 of 21 A. Purpose. The purpose of the Neighborhood Commercial (NC) Zone District is to provide for the establishment of mixed-use buildings with commercial uses serving the daily or frequent needs of the surrounding neighborhood, thereby reducing traffic circulation and parking problems, to provide opportunities for affordable and free-market residential density, to support vacation rentals of residential dwelling units, and to provide a transition between the commercial core and surrounding residential neighborhoods. B. Permitted uses. The following uses are permitted as of right in the Neighborhood Commercial (NC) Zone District: 1. Uses allowed on upper floors: lodging, affordable multi-family housing, free- market multi-family housing, home occupations, and vacation rentals. 2. Uses allowed on all building levels: retail and restaurant uses, neighborhood commercial uses, service uses, office uses, arts, cultural and civic uses, public uses, recreational uses, academic uses, child care center, bed and breakfast, accessory uses and structures, uses and building elements necessary and incidental to uses on other floors, including parking accessory to a permitted use, storage accessory to a permitted use, farmers' market, provided that a vending agreement is obtained pursuant to Subsection 15.04.350(b). Section 16. That Section 26.710.180. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.180. Mixed-Use (MU). A. Purpose. The purpose of the Mixed-Use (MU) Zone District is to provide for a variety of lodging, short term vacation rentals, multi-family, single-family and mixed-use buildings with commercial uses serving the daily or frequent needs of the surrounding neighborhood, to provide a transition between the commercial core and surrounding residential neighborhoods and to provide a variety of building sizes compatible with the character of the Main Street Historic District. B. Permitted uses. The following uses are permitted as of right in the Mixed-Use (MU) Zone District: 1. On historic landmark properties: Retail and restaurant uses, neighborhood commercial uses and bed and breakfast. 2. Service uses. 3. Office uses. 4. Lodging, timeshare lodge and exempt timesharing. 5. Arts, cultural and civic uses. 6. Public uses. 7. Recreational uses. Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 15 of 21 8. Academic uses. 9. Child care center. 10. Affordable multi-family housing. 11. Free-market multi-family housing. 12. Single-family residence. 13. Duplex residence. 14. Two (2) detached single-family residences. 15. Home occupations. 16. Accessory uses and structures. 17. Storage accessory to a permitted use. 18. Vacation rentals. Pursuant to Section 26.575.220. Section 17. That Section 26.710.190. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.190. Lodge (L). A. Purpose. The purpose of the Lodge (L) Zone District is to encourage construction, renovation and operation of lodges, tourist-oriented multi-family buildings through short term vacation rentals, high occupancy timeshare facilities and ancillary uses compatible with lodging to support and enhance the City's resort economy. - The City encourages high-occupancy lodging development in this zone district. Therefore, certain dimensional incentives are provided in this zone district, as well as other development incentives in Chapter 26.470, Growth Management Quota System (GMQS). B. Permitted uses. The following uses are permitted as of right in the Lodge (L) Zone District: 1. Hotel or lodge. 2. Timeshare lodge. 3. Exempt timesharing. 4. Offices and activities accessory to timeshare unit sales (see Section 26.590). 5. Bed and breakfast. 6. Conference facilities. 7. Uses associated with outdoor recreation facilities and events. 8. Accessory uses and structures. (Food service for on-site lodge guests is an accessory use.) 9. Storage accessory to a permitted use. 10.Affordable multi-family housing accessory to a lodging or timeshare operation and for employees of the operation. 11. Free-market multi-family housing. 12. Home occupations. 13. Vacation rentals. Pursuant to Section 26.575.220. Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 16 of 21 Section 18. That Section 26.710.200. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.200. Commercial Lodge (CL). A. Purpose. The purpose of the Commercial Lodge (CL) Zone District is to provide for the establishment of mixed-use commercial and lodge development by permitting commercial uses on the ground floor with lodging development above. The City encourages high-occupancy lodging development in this zone district through hotel, lodge and timeshare uses and short term vacation rentals B. Permitted uses. The following uses are permitted as of right in the Commercial Lodge(CL) Zone District: 1. Uses allowed in basement and ground floors: Those uses allowed in Basement and Ground Floors, respectively, within the Commercial Core Zone District. Uses and facilities necessary and incidental to uses on Upper Floors. Parking shall not be allowed as the sole use of the ground floor. 2. Uses allowed on upper floors: Hotel or lodge, timeshare lodge, exempt timesharing, offices and activities accessory to timeshare unit sales (see Chapter 26.590), conference facilities, accessory uses, storage accessory to a permitted use, affordable multi-family housing, free-market multi-family housing, vacation rentals (Food service for on-site lodge guests is an accessory use.) Section 19. That Section 26.710.310. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.310. Lodge Overlay (LO) Zone District. A. Purpose. The purpose of the Lodge Overlay (LO) Zone District is to provide for lodge uses and short term vacation rentals in areas of the City suitable for lodge accommodations but which lie in predominantly residential neighborhoods or where there are limitations on development that necessitate the permitted density to be significantly less than that in the City's other lodge Zone Districts. B. Permitted uses. The following uses are permitted as of right in the Lodge Overlay (LO) Zone District: 1. The uses permitted in the underlying zone district. 2. Hotel or lodge. 3. Timeshare lodge. 4. Exempt timesharing. 5. Bed and breakfast. Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 17 of 21 6. Offices and activities accessory to timeshare unit sales (see Chapter 26.590). 7. Conference facilities. 8. Uses associated with outdoor recreation facilities and events. 9. Accessory uses and structures. (Food service for on-site lodge guests is an accessory use.) 10. Storage accessory to a permitted use. 11. Affordable housing accessory to a lodging or timeshare operation and for employees of the operation. 12. Free-market multi-family housing. 13. Vacation rentals. Pursuant to Section 26.575.220. Section 20. That Section 26.710.320. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.320. Lodge Preservation Overlay (LP) Zone District. A. Purpose. The purpose of the Lodge Preservation (LP) Overlay Zone District is to provide for and protect small lodge uses on properties historically used for lodge accommodations, to permit redevelopment of these properties to accommodate lodge and affordable housing uses, to provide uses accessory and normally associated with lodge and affordable housing development, to permit short term vacation rentals of residential units, to encourage development which is compatible with the neighborhood and respective of the manner in which the property has historically operated and to provide an incentive for upgrading existing lodges on site or onto adjacent properties. B. Permitted uses. The following uses are permitted as of right in the Lodge Preservation (LP) Overlay Zone District: 1. The uses permitted in the underlying zone district. 2. Hotel or lodge. 3. Timeshare lodge. 4. Exempt timesharing. 5. Bed and breakfast. 6. Dormitory. 7. Offices and activities accessory to timeshare unit sales (see Chapter 26.590). 8. Conference facilities. 9. Uses associated with outdoor recreation facilities and events. 10. Accessory uses and structures. (Food service for on-site lodge guests is an accessory use.) 11. Storage accessory to a permitted use. 12. Affordable housing accessory to a lodging or timeshare operation and for employees of the operation. 13. Free-market multi-family housing. 14. Vacation rentals. Pursuant to Section 26.575.220. Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 18 of 21 Section 21. That Section 26.710.330. A and B of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 26.710.330. Ski Area Base (SKI). A. Purpose. The purpose of the Ski Area Base (SKI) Zone District is to provide for areas which allow for a mixture of uses related to ski area uses and operations including, skiing and appurtenant uses and structures, ski area administrative offices, recreation, lodge/hotel, retail, restaurant and bar uses, tourist-oriented service uses,_residential uses, and short term vacation rentals. It is intended that this Zone District will apply to areas located at the base of ski areas and all development within this district will be master planned through a planned unit development (PUD) process. B. Permitted uses. The following uses are permitted as of right in the Ski Area Base (SKI) Zone District: 1. Alpine and Nordic ski areas, related uses and support facilities typically associated with the uses and operations of ski areas. 2. Lodge units. 3. Hotel. 4. Multi-family dwellings. 5. Detached residential or duplex dwellings. 6. Dining rooms, customary accessory commercial uses, laundry and recreational facilities located on the same site of and for guests of lodge units, hotels and dwelling units. 7. Accessory residential dwellings restricted to Affordable Housing Guidelines and Section 26.520.040. 8. Ski area administrative offices. 9. Restaurants and bars. 10. Special events associated with ski areas including such events as ski races, bicycle races and concerts; with special event committee review. 11. Parks, outdoor recreational uses and trails. 12. Recreational facility. 13. Retail establishments. 14. Public transportation stop. 15. Terminal building and transportation related facilities. 16. Medical clinic accessory to the ski area. 17. Fire, police and emergency services facilities. 18. Accessory buildings and uses. 19. Outdoor vendor carts or areas for food and beverages sales and preparation. 20. Timeshare lodge. 21. Exempt timesharing. 22. Vacation rentals. Pursuant to Section 26.575.220. Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 19 of 21 Section 22. Effect Upon Existing Litigation. 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 23. Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 24. Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty(30) days following fmal passage. Section 25. Notice of Public Hearing. A public hearing on this ordinance shall be held on the 12th day of December, 2011, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, 130 S. Galena St., Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. FIRST READING OF THIS ORDINANCE WAS INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 14th day of November,2011. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY,adopted,passed and approved this_day of ,20_ Attest: Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 20 of 21 Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Approved as to form: City Attorney Ordinance 34, Series of 2011 (marked-up version) Code Amendment-vacation rentals Page 21 of 21 ' clitfileri-1- �. THE CITY OF ASPEN Memorandum To: City Council From: Don Taylor, Director of Finance CC: Steve Barwick, City Manager Date: March 19, 2012 Re: Short Term Rentals of Owner Occupied Properties. A council member has requested that staff investigate as to how occasional short term rentals by property owners who otherwise occupy the property as a residence the rest of the year, might be exempted from the City sales tax code. I have listed a couple of different options for accomplishing this, none of them without concerns or issues. Council should proceed carefully if it decides to pursue an exemption as the TABOR amendment provides that they cannot be reversed without going to an election. First, as a point of clarification, the sales tax code as it exists today requires that a business license is obtained and that sales and accommodation tax be collected and remitted for all short term rentals, regardless of the land use district where the unit may be located. There may have been some confusion as to the enforcement of this provision in the past and the enforcement was postponed as the City went through an evaluation of the land use code provisions. One option is to create an exemption for individuals renting homes that are for the rest of the year occupied by a full time resident. This would have to be an exemption placed both in the sales tax ordinance and the business license tax ordinance. This should be limited by the number of days rented and some dollar amount, such as 14 days and $5,000 gross sales. We would also have to come up with some proof of full time occupancy, such as an affidavit or registration to vote in Aspen. One of the difficulties of crafting this kind of exemption is how to deal with those that exceed the exemption level later in the year. They start out thinking that they are not going to exceed the limit and don't collect the tax from the renter and then they find that they have exceeded the limit and have to pay it themselves as opposed to collecting it from the renter or worse they just don't report it at all. The other difficulty is ascertaining residency. Somebody that lives here in the summer but rents out their unit in the winter may consider themselves a resident. Another difficulty is having a marketplace of rental units where some are subject to paying the tax and others are not. This will create confusion for consumers and consumers will press property owners not to collect the tax whether it is exempt or not. It is not clear how much revenue the city currently receives would be lost by implementing this exemption. These properties should be required to register with the City so that the City can assure that the exemption is being applied properly. Another option is to exempt all small renters (say less than two weeks and less than $5,000) regardless of whether owner occupied, second home or investor properties. This removes the issue of identifying whether a unit is owner occupied or not. This however has many of the same issues as listed above except identifying as to owner occupied and also carries a large revenue loss. A third option would be to exempt all rentals in certain land use districts. This would eliminate some of the issues relating to enforcing the small renter exemption as to owner occupied or as to the size of the rental business. There would be serious issues as to equity of the tax code of some of the rental businesses had to collect tax and others did not. There would also be revenue losses from this type of exemption. A fourth option would be to simply exempt the first $5,000 for all properties that are rented short term. You would still have to license them to know what was out there but the sales could be exempted for the first$5,000 of short term rental sales. Once again a major drawback to this is confusion for consumers. You would have a situation where some sales would be exempt and the consumer would not be paying the sales tax and other sales where they are taxable. Consumers will feel like they are not being dealt with honestly if they don't find consistency in their tax treatment. My recommendation would be to not change the sales tax code at all and enforce the provisions as they now exist. • Page 2 hk4St Vacation Rental Permit Application THE CITY OF ASPEN Name of owner: Address of rental property*: *Multi-family units within the same building that use the same owner representative may apply for one consolidated vacation rental permit. A vacation rental must comply with each of the following: 1. I have obtained or applied for a City of Aspen Business License. Business license# Any person who owns or represents one or more Vacation Rentals shall obtain an annual City of Aspen business license pursuant to Chapter 14.08, Business Licenses, of the Municipal Code. If an individual or business entity acts as a designated representative of one or more Vacation Rentals, only one business license shall be required. However, each residential unit shall obtain a Vacation Rental Permit. 2. If applicable, I have notified my Home Owner's Association regarding my application for a vacation rental permit. • It is my responsibility to notify my HOA prior to submitting my vacation rental permit to confirm that vacation rentals are in compliance with the condominium documents associated with my property. • It is recommended that deed restricted affordable housing units check in with APCHA to confirm compliance with Housing Guidelines. 3. The designated owner representative for my rental is: Name: (owner may list themselves if they meet the requirements below) Phone Us): Address: (must be located within the Roaring Fork Valley) • I understand that my designated representative must be on call to manage the rental during any period within which the rental is occupied. It is my responsibility to contact the City within a reasonable time frame if there is a change of owner representative. • It is recommended that the owner representative provide information to renters about the following City of Aspen ordinances (a hand out is attached): on-street parking permits, wildlife and trash requirements, and noise requirements. Vacation Rental Permit Application ••_- • It is recommended, but not required, that a sign be posted on the property identifying the owner representative's name and number for neighbors to call if there is a concern. A sign permit is not required; however only one sign with an area not to exceed 2 square feet is permitted. Please refer to the sign code for additional requirements for multi-family buildings. 4. I agree to collect and to remit all applicable sales and lodging taxes. I understand that my vacation rental is subject to all taxpayer responsibilities set forth at Chapter 23.08, Taxpayer's Responsibilities, particularly the responsibility to collect and to remit all applicable sales and lodging taxes. I, , represent that the Vacation Rental Permit for which I am applying meets all of the criteria described above. For residential zone districts, with the exception of Multi-family buildings within the Aspen Infill Area that are zoned RMF: I, , understand that I am permitted to rent my property as a vacation rental number of stays per calendar year. Vacation rentals are defined as equal to or less than 30 consecutive days. Failure to comply with the vacation rental requirements may result in revocation of Vacation Rental Permit. Property Owner Date Approved for annual vacation rental permit issuance: Community Development Date Office Use Only: Permit number: Zone District: Comments: Vacation Rental Permit Application �� gykoln.4. g Sara Adams From: fzb@comcast.net Sent: Sunday, January 15, 2012 9:39 AM To: Sara Adams Subject: 420 West Francis st. Rentals Hi Sara, I am writing to say that I am in favor of Private home rentals in the West End. It can be very lonely around here and the rentals bring Life to the neighborhood. I believe most owners will do the right thing when it comes to taxes once they are educated on the process. etc. The Real Estate Companies take care of the taxes for us . If you use VRBO they now has a service so that people can easily pay the rental taxes. I bought my house as an income producing investment. I need to Rent it to help pay the Real Estate taxes and insurance. I am lucky if I can get it rented in this economy and hope the board will understand. Respectfully, Francie Boyers, 420 west Francis St. Email secured by Check Point 1 3 • u•20/z indem Regular Meeting Aspen City Council December 12, 2011 staff to solicit those comments for the public hearing. Councilman Johnson agreed he would like public outreach and would like to know how the temporary use has been going to date. Councilman Frisch asked if there will be any staff added and will this require employee mitigation. Councilman Skadron asked if it is Theatre Aspen's goal to have a year round facility. Paige,Theatre Aspen, answered it is not. Mayor Ireland moved to adopt Ordinance#38, Series of 2011, on first reading; seconded by Councilman Johnson. Roll call vote; Frisch, yes; Skadron, yes; Tone,yew; Johnson, yes; Mayor Ireland, yes. Motion carried. ORDINANCE#37,SERIES OF 2011 -Adopting International Fire Code Ed VanWalraven, fire marshal,told Council this fire code is a sister code to the building code, which was recently amended. The fire code and building code have been adopted in unison over the past decade. Councilman Johnson moved to adopt Ordinance#37, Series of 2011,on second reading; seconded.by Councilman Frisch. Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. Roll call vote; Johnson, yes; Skadron, yes; Frisch, yes; Torre, yes; Mayor Ireland,yes. Motion carried. ORDINANCE#34,SERIES OF 2011 —Code Amendment Vacation Rentals Sara Adams,community development department,reminded Council there were questions at first reading; staff has providing background on how they have gotten to this point. Staff is requesting feedback on 3 issues and also requests to continue this to February 13'h. Ms. Adams said this issue was raised at the Colorado Association of Ski Towns and the question there was if there was lost revenue because of these types of rentals. CAST formed a task force and has been working on this with the emphasis on tax remittance. The city finance department looked into business licenses for vacation rentals, in 2009 there were 14 business licenses. Finance has followed up on rentals on line and has asked for business licenses. The current zoning only allows two rentals/year in districts other than the lodging zone district. Ms. Adams told Council community development department has received 5 complaints since 2008,which is low. Staff is focused on zoning compliance. Ms. Adams said she has surveyed other communities that have rental issues and concluded that every community does it differently. Council has had two work sessions on this topic. Ms. Adams said the first issue is whether to amend the code or to enforce the code, which allows two rentals/year of less than six months in all zone districts other than the lodging zone district. If Council thinks the code should be amended, should these rentals be restricted to specific zone districts and should the number of rentals per year be limited. 4 • Regular Meeting Aspen City Council December 12,2011 Councilman Skadron asked if there is information from this research on the changing marketplace and the way people looking for vacation rentals are shopping. Ms. Adams said the popularity of online sites is becoming more popular. Mayor Ireland opened the public hearing. Tricia McIntyre, Aspen Luxury Rentals,told Council this is a high end private home rental company. Ms. McIntyre said many of their rentals are not zoned for short term rentals and could only be rented twice a year. If the city were to enforce the code, it would wipe out this rental market and take away the inventory. Ms. McIntyre said they have been paying sales taxes and there are many people renting online that are not paying sales taxes, which is an economic advantage to them. Ms. McIntyre said her company oversees rentals and makes sure the renters are compliant with the city rules. Ms. McIntyre said the best solution is unlimited vacation rentals and the sales tax should be collected. Ms. McIntyre said 5 complaints over 5 years is not very many. Councilman Johnson asked the rental frequencies of these properties. Ms. McIntyre said her properties rental around 4 times/year, some not as many and some properties only rent during Christmas. Councilman Johnson said one concern is if there were unlimited rentals,there would be a larger volume of rentals. These rentals generate business for local companies, like maids and chefs. Councilman Torre stated his priority is the integrity of the residential zones. Councilman Torre agreed the code should be amended and there is a middle ground that can be struck. Tracy Sutton,Aspen Signature Properties, said she also has a high end rental company. Ms. Sutton pointed out there are not a lot of 5 and 6 bedroom homes in the core area that are rental properties and expanding the rental areas is important. Ms. Sutton noted some property owners rent their houses to help pay for them and eliminating rentals could affect the real estate community. Councilman Johnson asked what a reasonable number of rentals/year would be. Ms. Sutton said 8 rentals would cover how most properties work. Councilman Tone said allowing rentals in residential zones may help them from becoming dark. Councilman Torre said rather than a number of rentals/year he would favor cumulative time/year. Councilman Tore said he does not want to take away the ability of people to be able to rent their homes but would also like residents to be able to keep their neighborhood a neighborhood. Councilman Skadron said from the nature of the complaints, it does not seem people are concerned about the rentals but how people are conducting themselves when renting. Steve Fallender said going from two rentals allowed to unlimited is a huge jump. Fallender said he was aware of the code not allowing short term rentals when he was buying his first property. Fallender said the Board of Realtors can remind buyers about rental restrictions regardless of what the city decides. Fallender said he is not opposed to rentals but he is opposed to unlimited rentals. Fallender said the west end should be respected as a place people live. Fallender said changing the code will not make enforcement easier and unlimited rentals will not change renters who do not pay attention to the city's regulations. Mayor Ireland closed the public hearing. 5 Regular Meeting Aspen City Council December 12,2011 Councilman Johnson said the code should be changed and rentals should be allowed in all zone districts and he likes either limiting the rentals or setting a maximum number of days. Councilman Johnson said he would like to know what the market is like now. Councilman Johnson suggested researching the rentals laws in Maui. Councilman Johnson agreed these rentals are supplying jobs to locals as part of the resort community. Councilman Frisch noted this is a growing sector of rentals in the community. Councilman Frisch agreed 5 complaints in 5 years is not a problem;however,this could be a problem if unlimited. Councilman Frisch said the city is committed to doing a lodging study and changes to the land use code,both of these will be affected by these proposed code changes. Councilman Frisch said he would like to address the entire picture rather than passing small code changes and would like the lodging study done as soon as possible. Councilman Skadron asked if this code amendment is related to the larger lodging issues. Bendon said it is in what is offered in terms of tourists stays,which should be looked at across the board. Bendon said this piece is not critical and this can be fixed before the lodging study is done. Councilman Skadron concurred the code should be changed and rentals should be allowed in more zone districts than just lodging district. Councilman Skadron said number of days rather than number of stays is worth consideration. Mayor Ireland agreed a regulatory scheme for doing this is needed; small businesses should be paying taxes and everyone should be contributing to the community. Mayor Ireland noted there more vacant properties in the community; this may allow properties to be occupied parts of the year without pricing residents out of owning a house in Aspen. Mayor Ireland said people should lose their license if they do not control their properties from a nuisance standpoint. Mayor Ireland said there are at least 3 votes to amend the code with limits on how often or how many days these rentals can occur. Councilman Johnson moved to continue Ordinance#34, Series of 2011,to February 13, 2012; seconded by Councilman Tone. All in favor,motion carried. RESOLUTION #82,SERIES OF 2011 —Temporary Use Permit Nugget Gallery Chris Bendon, community development department,reminded Council there was a temporary use approved for this space on the Hyman mall last year and this is a request to continue operating in that space. The space is a lobby and hallway in a commercial building which the applicant turned into a gallery. Bendon said in the original approval,Council thought this was a way to look at spaces like this and see if the code should be amended. Bendon told Council the applicant has done a good job operating the space and staff recommends in favor. Bendon pointed out the outstanding issue is the use of signs boards; staff provided three options,no sandwich board, sandwich board all the time, sandwich board for 8 one week periods. Bendon said sandwich boards are allowed for business that are not right on the street level and this business qualifies for that. Ross Kribbs, applicant, said his concept works for this space and the majority of the art has been local and he would like to see a code change to allow this type of use permanently. Kribbs said this space is common area and there are security issues. Kribbs said the tenants in the building have enjoyed the changing art displays. The social events have been held at night. 6