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HomeMy WebLinkAboutagenda.council.regular.20120529CITY COUNCIL AGENDA May 29, 2012 5:00 P.M. 1) Call to Order II) Roll Call III) Scheduled Public Appearances a) Bike Friendly Community USA Award b) HPC Awards 40th Anniversary Celebration 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) Board Appointments b) Requests Associated with USA Pro Cycling Challenge c) Resolution #47, 2012 — Contract Security Services — Special Events d) Resolution #52, 2012 — Ext. of AspenModern Negotiation — Aspen Athletic Club e) Resolution #53, 2012 — Extension of AspenModern Negotiation 610 E. Hyman f) Resolution #46, 2012 —Real Estate Broker Contract g) Resolution #54, 2012 - Rio Grande Park Pedestrian Bridge h) Resolution #55, 2012 — Lockton - Owner controlled insurance - Burlingame i) Resolution # 56, 2012 — Dale's - Fresh Water Pump Station- Golf course j) Minutes — May 14, 2012 VII) First Reading of Ordinances a) Ordinance #17, 2012 -AspenModern Negotiation —Aspen Athletic Club P.H.6 -11 b) Ordinance #18, 2012 — South Aspen Street PUD P.H. 6 -25 c) Ordinance #19, 2012 — Pitkin County Library SPA Amendment 120 Mill P.H.6 -11 VIII) Public Hearings a) Ordinance #16, 2012 —Code Amendment— Composting Toilets IX) Action Items X) Adjournment Next Regular Meeting June 11, 2012 COUNCIL'S ADOPTED GUIDELINES • Stick to top priorities • Involve others in community problem solving • Be thorouqh, deliberate and accountable for consequences when 'making decisions COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. MEMORANDUM a TO: Mayor and City Council FROM: Kathryn S. Koch, City Clerk DATE: May 22, 2012 RE: Board Appointments By approving the consent calendar, Council is making the following appointments: Historic Preservation Commission Sallie Golden, regular Patrick Sagal, regular I Jane Hills, alternate Kids First Board Rebecca Paschal The Kids' First Board is a non - binding board with the mission and goals as outlined on the attached information sheet. Shirley Ritter, executive director of Kids' First requests Council affirm the appointment of Rebecca. Rebecca has been coming to their meetings for the past two months. APPLICATION' FOR APPOINTMENT CITY OF ASPEN BOARD OR COMMISSIONS NAME !�e be Cc0.?,�, STREET ADDRESS G L�v� MAILING ADDRESS U tivt �� lta _ CID l CQ S � ��h C� � tta12 �1 HOME PHONE / FAX WORK PHONE / FAX �-7�, BOARD OR COMMISSION FOR WHICH APPLICATION IS MADE: Child Care Advisory Committee — Kids First Advisory Board EMPLOYMENT PREVIOUS TWO YEARS: A W Q C- � L gspe►I , STREET ADDRESS PREVIOUS TWO YEARS: YLD -+�� �.� +mc,� U ; lion �� C�.e� <' t t-e � S •- , INVESTMENTS AND /OR LAND HOLDINGS IN PITKIN COUNTY: nho rna-r'c3 V 'A1o, 5 e,e acl SS .Q (4) nU-¢ I DESIRE THE APPOINTMENT FOR THE FOLLOWING REASONS: V e, l 0't,i 1 w oc'lcl ' Ui i1e -�o be-c� � �Ja �- � hel � -�-� ,rhea �-� o� c ��, �C�c� av,c� �c a2s�a� ; .n SIGNATURE:�L% cl DATE: . LPD /Z Please return to City of Aspen — Kids First Phone: 920 -5363, Fax: 920 -5407 215 North Garmisch, Suite 1, Aspen, CO 81611 Kids First Advisory Board Kids First Mission Promote the availability of quality, affordable early childhood care & education, Provide access to childcare information and resources. Kids First Goals 1. Increase the quality of early childhood education and care. 2. Maintain affordability of programs and provide information regarding the true cost of childcare. 3. Increase and maintain the availability of childcare programs. 4. Increase public education and awareness about the importance of early childhood education 5. Support the recruitment and retention of qualified early childhood education teachers. Enabling Le_ isles Established by Aspen City Council upon voter approval of ordinance 81, series of 1989, which ordinance Powers and Duties Board A. Develop annual and long -term goals which further the mission of Kids First B. Recommend projects, programs and funding to Aspen City Council C. Review and Recommend grants to childcare programs D. Advocate for Kids First and its' programs E. Attend monthly scheduled meetings and assist,-in the collaborative efforts of these meetings which promote the goals of Kids First. Meetings appointed term Beth Casden 2012 Linda Consuegra 2012 Yvonne Hernandez 2012 Kristen Tullar 2009 2010 Sue Way 2009 2011 Lynn Rumbaugh Margaret Maxwell 2011 2014 Enabling Le_ isles Established by Aspen City Council upon voter approval of ordinance 81, series of 1989, which ordinance Powers and Duties Board A. Develop annual and long -term goals which further the mission of Kids First B. Recommend projects, programs and funding to Aspen City Council C. Review and Recommend grants to childcare programs D. Advocate for Kids First and its' programs E. Attend monthly scheduled meetings and assist,-in the collaborative efforts of these meetings which promote the goals of Kids First. Meetings t MEMORANDUM TO: Mayor and City Council FROM: Nancy Lesley, Director of Special Events and Marketing MEETING DATE: May 29, 2012 RE: Requests Associated with USA Pro Cycling Challenge REQUEST OF COUNCIL: Council is being asked to extend the length of time banners are allowed on light poles on Main Street and in the commercial core from 14 days to 4 weeks. Council is also being asked to ban construction in the Central Resort Area on Wednesday, August 22, and a "light" (half) day on Thursday, August 23, 2012, the two days of the Pro Challenge is in town. DISCUSSION: In 2011 Council granted both these requests. The City of Aspen Municipal Code 26.510.140 Policies regarding signage on public property: C. Banners and flags on Main Street light posts. Purpose: Banners and flags hung from light posts on Main Street have traditionally been permitted to celebrate special events of community interest. The purpose of these policies and regulations is to clarify which events may be celebrated and advertised through the use of banners or flags hung from the City -owned light posts on Main Street. 2. Eligibility: Banners hung from the Main Street light posts shall be permitted for anniversaries of local nonprofit organizations beginning at the organization's tenth (10th) year and for events that are considered relevant to a large segment of the local community 6. Duration: The display of banners and flags on the Main Street light posts shall not exceed fourteen (14) days or the duration of the event, whichever is less. Banners are allowed on light posts in the commercial core when associated with an approved special event, also for only 14 days. Staff is requesting Council allow banners celebrating the Pro Challenge and other events surround the Pro Challenge to be hung on light posts on Main street and in the commercial core for 4 weeks. Staff feels that with the magnitude of press coverage, national and statewide as well as the impact on the community, that the extended time period is warranted. The City of Aspen Municipal Code Section 8.56.010 adopts the Construction Management Plan and Section 4.0 of the Construction Management Plan outlines the hours of construction and is allowed from June Is' through Labor, limited to 7 AM to 5 PM Monday through Friday. Page I of 2 Construction in the Central Resort Area is not allowed during Food & Wine. Staff is requesting Council extend the construction ban for the Pro Challenge (this year it is scheduled for August 22nd and 23`d) so that there will be no conflicts between bicycle racers, spectators and construction crews. Staff is requesting all day on Wednesday, August 22nd and a morning only, or "light" day on Thursday, August 23`d RECOMMENDED ACTION: Staff requests Council approve both of these requests. ALTERNATIVES: If Council does not want to approve the staff recommendation, banners will be hung for the allowed 14 days. Staff does not feel there is an alternative to not allowing construction in the Central Resort Area August 22nd and 23`d as it is a safety issue. PROPOSED MOTION: By adopting the consent calendar, Council is allowing the banners.for the Pro Challenge and athletic events around the race to be hung on light poles around the city for 4 weeks and is also approving no construction in the Central Resort Area on August 22nd and morning of 23`d CITY MANAGER COMMENTS: Page 2 of 2 � c. MEMORANDUM TO: Mayor and City Council FROM: Nancy Lesley, Director of Special Events THRU: Richard Pryor, Aspen Police Chief MEETING DATE: May 29, 2012 RE: Security contract REQUEST OF COUNCIL: Council is being asked to approve the security contract with Colorado Protective Services -Aspen Inc. to provide security services during City of Aspen managed special events. PREVIOUS COUNCIL ACTION: None BACKGROUND: Six companies responded to a request for proposal to provide security services at City of Aspen sponsored special events for the year 2012: The security company, Colorado Protective Services- Aspen, Inc. was selected based on the following criteria which were given a numeric rating; Experience (including within the industry, with other agencies, with crowd control, traffic, safety, etc), Company Information/Background, Staff (key personnel, full time employees, code of conduct, identification, uniforms, equipment and communication), References, Staff Training, Sample cost of an event given certain parameters. Each company was rated based on the above criteria, with two of the six companies earning high ratings. The panel then conducted phone interviews with the two companies and chose Colorado Protective Services -Aspen based on the rating system and phone interview. DISCUSSION: The Scope of Work includes the Aspen Old Fashioned Fourth of July parade, the USA Pro Cycling Challenge, the Community Picnic, New Year's Eve, the Owl Creek Chase, the Aspen Downtown Criterium and Aspen Triathlon. During these events the security company provides help with traffic control, crowd control, parking assistance. Security works closely with event volunteers and provides a level of authority, especially on traffic and crowd control that we can't accomplish with just staff and volunteers. In addition, during the Fourth of July parade, we utilize certified traffic controllers. During New Year's Eve, it is imperative that we have a "security" presence that works very closely with our Police Department that helps to ensure the safety of the community during this night. Page 1 of 2 RESOLUTION # 47 (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND COLORADO PROTECTIVE SERVICES -ASPEN INC. 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 protective services during City of Aspen managed events, between the City.of Aspen and Colorado Protective Services -Aspen 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 protective services during City of Aspen managed events, between the City of Aspen and Colorado Protective Services -Aspen 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 29th day of May, 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, May 29, 2012. Kathryn S. Koch, City Clerk CITY OF ASPEN STANDARD FORM OF AGREEMENT - 2009 PROFESSIONAL SERVICES The City of Aspen City of Aspen Project No.: 2011 -027. AGREEMENT made as of 29th day of May, in the year 2012. BETWEEN the City: Contract Amount: The City of Aspen c/o Special Events 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920 -5055 And the Professional: Colorado Protective Services — Aspen Inc. c/o Tom Dalessandri 175 Oak Run Carbondale, Colorado 81623 Phone: 379 -4201 For the Following Project: Security services for City of Aspen Special Events Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit B: Hourly Fee Schedule. Total: Hourly rates $41,000 plus If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: Resolution No.: 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 as necessary for each event. 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. Pte. 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 -Assi an bility. Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub - Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors' officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub - contractor. 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 relieved of any liability to the City for damages sustained by the City by virtue of any breach of Agreement Professional Services Page 1 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 parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 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 addition to any other insurance requirements imposed by this contract or by law. The Agreement Professional Services Page 2 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. (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 Agreement Professional Services Page 3 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 representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. Agreement Professional Services Page 4 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 Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. Agreement Professional Services Page 5 "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. (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: Agreement Professional Services Page 6 (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8- 17.5 -102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8- 17.5 -102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8 -17.5 -102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24- 76.5 -101 et seq., and (3) shall produce one of the forms of identification required by CRS 24- 76.5 -103 prior to the effective date of this Agreement. 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, 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 Agreement Professional Services Page 7 ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 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 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. Agreement Professional Services Page 8 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: [Signature] By: [Name] Title: Date: Approved as to form: City Attorney's Office PROFESSIONAL: -� [Signature] By: [Name] (� Title: C �.C) o V" v3 . S("-V Date: 5 - 17 -I - - Agreement Professional Services Page 9 EXHIBIT A Scope of Work The Contract shall be for a period of one year with two (2) one -year options to renew. The contract Scope of Work is based on actual security requirements that vary per event to provide crowd control, security, traffic and parking control. The examples of special events and levels of security needed are outlined below. This does not encompass all the City's special events. We recommend going to www.aspenrecreation.com to learn more about the special events the City hosts throughout the year. The City of Aspen has a Zero Tolerance policy on the use of alcohol, drugs, profanity, and tobacco during events. We expect security personnel to look and conduct themselves as professionals at all times and follow the directions of the event director /coordinator. Behavior that reflects poorly on the City of Aspen and its citizens will not be tolerated. 4th of July, Old Fashion 4th of July Celebration and Parade The Aspen Chamber Resort Association and the City of Aspen sponsor an old fashioned 4th of July parade through town each year. There are floats, cars, fire trucks, people dressed up doing acts, children riding bikes, and people walking dogs in the parade. During the parade, cars and busses are re- routed beginning at 9am. This event requires standing for long periods of time outside in all kinds of weather. Personnel must be prepared for snow, rain, sun, or extreme cold conditions. Personnel cannot leave their post unless specifically directed by event director. Volunteers will provide 10 minutes breaks. We recommend taking water, sunscreen, snacks, rain coats, and other necessary articles of clothing for weather conditions. Fifty (50) Security personnel are needed from lam until approximately 4pm. Duties include: • Certified traffic control officers • Crowd control • Securing the car and bus temporary routes • Securing Parade route • Parking control • Public safety • Putting up and taking down barricades, fencing, and signage Bus Route Detour The bus detour is 16 blocks from Rubey Park to Seventh Street along Durant, Garmisch and Hopkins. Security will be standing at a station only allowing buses through the detour, turning all other traffic away. Agreement Professional Services Page 10 Traffic Detour Regular traffic detour is 17 blocks from Seventh and Main to Original. Traffic will be detoured at Main and Third Streets along Bleeker until Mill Street, then following Rio Grande Place to Original. Security must direct traffic through the detour, stopping traffic when needed. Parade Route Manning barricades and Fencing_ Security must not allow anyone inside the perimeter of the fencing and to direct pedestrians to cross only at designated areas. Crowd Control Security must absolutely follow the directions given by the event director. Pedestrians may only cross the parade route at clearly marked intersections, no exceptions. Security will also assist Community Safety and APD in changing detour back to regular traffic flows after the event. Owl Creek Chase The Owl Creek Chase is a 2 1 K Nordic Ski race from Snowmass Village to Aspen along the Owl Creek Trial held in mid February every year. The event begins at 11 am the Snowmass Nordic Center and ends at the Aspen Valley Ski and Snowboard Club in Aspen usually around 3pm. This is very physical: standing, sitting, shoveling, lifting up to 50 pounds, walking, while in extreme weather conditions (snow, wind, cold). Personnel will be out in the snow for the entirety of the event. It is extremely crucial that no one leaves their post unless specifically told by event director. Volunteers will provide short breaks for personnel. In 2011, the City utilized 96.7 hours of security personnel time. Fifteen (15) security personnel was needed beginning at 6:00am until approximately 3:00pm. Duties include: • Three (3) certified EMTs • Relaying proper information to the public and participants • Course Marshalling • Traffic Control • Parking Control Course Marshalling Direct participants where to go. Traffic Control It is necessary to stop traffic at road crossing so racers can cross the road along the snow covered trail. Duties also include patching the trail to make sure the snow is covering the road for the next racers. Road crossing are at Owl Creek Road between Burnt Mountain Circle and Two Creeks; the driveway crossing at Glendale Divide, Mandalay Ranch, East Owl Creek subdivision, West Buttermilk Road, Tiehack Road, and High School/Moore Drive. Parking Control Agreement Professional Services Page I 1 Managing the parking area and directing participants /spectators to the finish area or to the shuttle to the finish area. USA Pro Cycling Challenge The USA Pro Cycling Challenge is a professional bike race through the state of Colorado, televised live with national and international coverage. Professional cyclists will be traveling at high rates of speed coming off Independence Pass. Along with the cyclists, there will be official race vehicles, Colorado State Patrol, team cars, and camera crews on motorcycles. Also there will be some races in the morning that will be utilizing the race route before the professionals come over the Pass. It is the first year for this event in the state and in Aspen. Aspen has been chosen to host a stage finish on Wednesday, August 24, 2011. As a first year event, there will be assumptions made as there is no history in which to pull from. Also, as of now, there is no commitment to Aspen for the future. The event will involve agencies from the entire Roaring Fork Valley and beyond. The goal for this event is to fill town, hotels, restaurants etc. As far as the "expected" number of spectators, that is range that could be from 10,000 to 25,000. All the information below is an approximate, and will be subject to change: We anticipate needing approximately 65 to 80 security personnel for the day from approximately 6:30am to 6:30pm. The majority of the security personnel will be located along city streets securing the route from spectators and vehicles. This will be a long shift, and will be in whatever weather mother nature sends us that day. Other duties include securing the VIP tent, entrance and exits, securing parking lots containing team vehicles, and traffic control. Personnel must be able to firmly and politely not allow traffic onto the main roadway. There will be times when traffic is allowed and when it is absolutely not allowed. Personnel, for the most part, will need to be self sufficient, to bring their food and water, stand for long periods of time, in either hot weather or in rain, and not leave their post unless someone from the security company comes to give them a break. The successful Offeror's employees are expected to adhere to acceptable business principles in matters of personal conduct and exhibit a high degree of personal integrity and ethical behavior at all times. This not only involves sincere respect for the rights and feelings of others, but also demands that they refrain from any behavior that might be harmful to themselves, the citizens and guests in City, or that might be viewed unfavorably by the public at large. The successful Offeror's employees are expected to maintain a professional demeanor at all times. This includes displaying behavior that is courteous, polite and responsive to all others. Behavior that is commonly regarded as impolite, rude, disrespectful, hostile, offensive will not be tolerated and may result in termination of the contract. Dress, grooming, and personal hygiene should be appropriate to the work situation and should reflect a favorable image of the City of Aspen and its citizens. Agreement Professional Services Page 12 Pre -event Planning/meetings Pre -event site visits Telephone Consultation Cost of documenting Lodging Food Vehicle(s) Specialized equipment Lead Security Team members Supervisors EXHIBIT B Hourlv Fee Schedule no charge no charge no charge no charge no charge no charge no charge no charge $30.00 per hour, per person $30.00 per hour, per person $30.00 per hour, per person Estimated Costs based on information provided in the RFP: 4th of July 50 personnel lam -4pm Total man hours = 450 man hours At the proposed rate of $30 per man hour Total projected cost for this event $13,500 Owl Creek Chase 15 personnel including three certified EMTs 6am -3pm Total man hours = 135 man hours At the proposed rate of $30 per man hour Total projected cost for this event $4,050 USA Pro Cycling Challenge 65 to 80 security personnel6:30am- 6:30pm 65 s/p = 780 man hours At the proposed Rate $30 per man hour Total projected cost for this event Projected Staff needs 780 man hours = $23,400 Agreement Professional Services Page 13 MEMORANDUM TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Directo vo FROM: Sara Adams, Senior Planner' RE: 720 E. Hyman Avenue- Resolution #S Series of 2012, Extending an AspenModernNegotiation DATE: May 29, 2012 SUMMARY: 720 East Hyman Avenue is an Organic /Wrightian building that was designed by local architect Robin Molny. It was originally home to the Aspen Athletic Club. The applicant submitted an application to participate in the AspenModern program to landmark designate the property in exchange for specific incentives. The applicant proposes to change a portion of the second and the entire third floor commercial spaces into residential spaces. A roof deck is proposed. HPC will hold their first hearing on May 23`d which includes some minor exterior changes. Staff recommends that HPC approve the project with conditions. City Council is scheduled to hear first reading tonight, May 29th and second reading on June 1Ith. The 90 -day negotiation expires on June 71h Staff and the applicant request that the AspenModern process be extended until July 23, 2012 to` allow additional time to discuss options at Council. A resolution to extend the negotiation period is attached. STAFF RECOMMENDATION: Staff recommends that Council approve an extension of the time period to discuss voluntary historic designation and incentives with the owner of 720 E. Hyman Avenue to July 23, 2012. RECOMMENDED MOTION: "I move to adopt Resolution 6--;' �Series of 2012." CITY MANAGER COMMENTS: Exhibit: Resolution #Series of 2012 4l• A RESOLUTION OF THE ASPEN CITY COUNCIL EXTENDING THE ASPEN MODERN 90. DAY NEGOTIATION PERIOD FOR HISTORIC DESIGNATION AND BENEFITS RELATED TO THE PROPERTY LOCATED AT 720 E. HYMAN AVENUE, ASPEN ATHLETIC-CLUB BUILDING CONDOMINIUMS, LOTS Q, R, AND S, BLOCK 104, CITY AND TOWNSITE OF ASPEN, COLORADO Resolution No�eries of 2012 WHEREAS, the applicant, John Martin, represented by Charles Cunniffe Architects, submitted an application pursuant to Section 26.415.025.C, AspenModern Properties, of the Aspen Municipal Code, to voluntarily participate in a ninety -day negotiation period for historic landmark designation of 720 E. Hyman Avenue, Aspen Athletic Club Building Condominiums, Lots Q, R, and S, Block 104, City and Townsite of Aspen; and WHEREAS, pursuant to Section 26.415.025.C.1, the ninety -day AspenModern negotiation commenced on March 7, 2012 and will expire on June 7, 2012; and WHEREAS, the project is under review by the Historic Preservation Commission and it is unlikely that a public he can be scheduled before City Council prior to the expiration of the negotiation period, therefore staff and the property owner are in agreement that an extension of the negotiation to July 23, 2012 is appropriate to allow additional time to discuss options for the property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: The 720 E. Hyman Avenue negotiation period established by Aspen Municipal Code Section 26.415.025.0 is hereby extended to July 23, 2012. APPROVED by the Aspen City Council at its regular meeting on May 29, 2012. Approved as to form: James R. True, City Attorney Attest: Mayor: Kathryn Koch, City Clerk Michael C. Ireland, Mayor Teo MEMORANDUM TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Director NV" FROM: Amy Guthrie, Historic Preservation Officer RE: 610 E. Hyman Avenue- Resolution #5 Series of 2012, Extending an AspenModernNegotiation DATE: May 29, 2012 SUMMARY: 610 E. Hyman Avenue is a Modernist, Ellie Brickham designed building that was constructed in 1963 for well known local art gallery owner, Patricia Moore. Today the building is home to .Charles Cunniffe Architects. Charles Cunniffe /610 E. Hyman LLC, submitted an application for voluntary landmark designation in 2011, but did not complete the review process. The same application was resubmitted and received by the Planning Office - on March 28, 2012, prior to the" effective date of the new downtown height limits. HPC will hold their first hearing on the 2012 application on May 23`d. Staff has recommended that HPC continue the project for restudy for the same reasons it did not progress last year; there are alterations on the front of the building that should be restored as part of the award of preservation benefits. Because the HPC's schedule is full through September, further evaluation of the project if it is continued on May 23`d will be delayed. Staff and the applicant request that the AspenModern process be extended for 180 days until December 23, 2012 to allow additional time to discuss options. Staff appreciates the owners' efforts to consider preservation alternatives and we support taking additional time to work through the issue. At the same time, if staff cannot report to Council that a plan for restoration has been provided to HPC on May 23`d and at least gained their initial support, we would recommend against an extension of this negotiation. A resolution to extend the negation period is attached. STAFF RECOMMENDATION: Staff recommends that Council approve an extension of the time period to discuss voluntary historic designation and incentives with the owner of 610 E. Hyman Avenue to December 23, 2012, if HPC has received and initially supported a restoration plan for the building. RECOMMENDED MOTION: "I move to adopt Resolution #54 Series of 2012." CITY MANAGER COMMENTS: Exhibit: Resolution 163 Series of 2012 s A RESOLUTION OF THE ASPEN CITY COUNCIL EXTENDING THE ASPEN MODERN 90 DAY NEGOTIATION PERIOD FOR HISTORIC DESIGNATION AND BENEFITS RELATED TO THE PROPERTY LOCATED AT 610 E. HYMAN AVENUE, LOT M, BLOCK 99, CITY AND TOWNSITE OF ASPEN, COLORADO Resolution No. S, Series of 2012 WHEREAS, 610 E. Hyman LLC, represented by Haas Land Planning, submitted an application pursuant to Section 26.415.025.C, AspenModern Properties, of the Aspen Municipal Code, to voluntarily participate in a ninety -day negotiation period for historic preservation of 610 E. Hyman Avenue, Lot M, Block 99, City and Townsite of Aspen; and WHEREAS, pursuant to Section 26.415.025.C.1, the ninety -day AspenModern negotiation commenced on March 28, 2012 and will expire on June 26, 2012; and WHEREAS, the project is under review by the Historic Preservation Commission and it is unlikely that a public hearing can be scheduled before City Council prior to the expiration of the negotiation period, therefore staff and the property owner are in agreement that a 180 day extension of the negotiation to December 23, 2012 is appropriate to allow additional time to discuss options for the property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: The 610 E. Hyman Avenue negotiation period established by Aspen Municipal Code Section 26.415.025.0 is hereby extended to December 23, 2012. APPROVED by the Aspen City Council at its regular meeting on May 29, 2012. Approved as to form: James R. True, City Attorney Attest: Mayor: Kathryn Koch,. City Clerk Michael C. Ireland, Mayor MEMORANDUM f. TO: Mayor and City Council FROM: Steve Bossart, Capital Asset Project Manager THRU: Scott Miller, Capital Asset Director DATE OF MEMO: May 3, 2012 MEETING DATE: May 14, 2012 RE: 2012 Real Estate Broker Contract THE CITY OF ASPEN REQUEST OF COUNCIL: Capital Asset Staff requests Council's approval of Resolution # Lf b to execute a one year Contract for Professional Services for Real Estate Brokerage and Advisory Services, with Andrew Ernemann, Broker Associate of BJ Adams based on contingent commission fees per approved and closed real estate transactions and hourly fees for consulting services as requested. PREVIOUS COUNCIL ACTION: Prior real estate broker engagements. BACKGROUND: The City of Aspen has contracted with various real estate broker professionals to handle a variety of acquisitions and dispositions of real property, and for consulting services related to valuations and recommendation of real property. The City requested a commission and fee structure: • < $5M 2% • $5M to $10M 1.5% • > $10M 1% 3% will be added to the above structure for coop transactions with another broker, or if the City's broker handles both selling and listing side of closed transactions. Consulting will be billed to the City at the rate of $100 per hour, including research in addition to the broker's normal research activities, and written and presented reports. Periodic briefing meetings with the City's real estate manager (the Capital Asset Direct or other assigned or included staffers) and the City Manager will be considered a normal part of business not subject to this fee. Steve Barwick, City Manager, conducted a wrap up interview of the finalist. DISCUSSION: Staff issued an RFP for professional services, evaluated eight proposals, interviewed four finalists, and made a finalist recommendation to the City Manager. Andrew Ernemann was selected for a one year contract with provision for two one year extensions. FINANCIALBUDGET IMPACTS: Will be dependent on transactions completed and closed, as well as hourly consulting fees as needed. Page 1 of 2 THE CITY OF ASPEN RECOMMENDED ACTION: Staff recommends approval of contract with Andrew Ernemann, Broker Associate of BJ Adams. CITY MANAGER COMMENTS: ATTACHMENTS: Professional Services Agreement, Real Estate Broker and Consulting Services Page 2 of 2 RESOLUTION # Y (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO; APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND ANDREW ERNEMANN OF BJ ADAMS FOR REAL ESTATE BROKER SERVICES 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 Real Estate Broker Services, between the City of Aspen and Andrew Ernemann of BJ Adams, 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 real estate broker services, between the City of Aspen and Andrew Ernemann of BJ Adams, 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 14th day .of May 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, May 14, 2012. Kathryn S. Koch, City Clerk G The City of Aspen CITY OF ASPEN STANDARD FORM OF AGREEMENT. v2009 PROFESSIONAL SERVICES City of Aspen Project No.: 2011 -090. AGREEMENT made as of 14`x' day of May, in the year 2012. BETWEEN the City: The City of Aspen c/o Capital Asset Management 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920 -5055 And the Professional: Andrew Ernemann c/o BJ Adams 534 E. Hopkins Avenue Aspen, CO 81611 Phone: 922 -2170 For the Following Project: Real Estate Broker and Consulting Services Contract Amount: Total: Services as needed If this Agreement requires the City to pay_ an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: Resolution No.: Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit B: Fee Schedule. Exhibit C: State approved forms for real estate transactions 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 May 14, 2013. 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 relieved of any liability to the City for damages sustained by the City by virtue of any breach of Agreement Professional Services Page 1 r 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 parties that nothing contained in this agreement shall result in, or be construed as ,establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf-of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained .under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 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 addition to any other insurance requirements imposed by this contract or by law. The Agreement Professional Services Page 2 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. (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 Agreement Professional Services Page 3 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 to 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 representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. Agreement Professional Services Page 4 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 Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. Agreement Professional Services Page 5 "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. (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: Agreement Professional Services Page 6 (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the, subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado .Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8- 17.5 -102 (5), C.R.S. (vii) If Professional violates any provision of the Public. Contract for Services pertaining to the duties imposed by Subsection 8- 17.5 -102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional's violation of Subsection 8- 17.5 -102, C.R.S. (ix) -If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24- 76.5 -101 et seq., and (3) shall produce one of the forms of identification required by CRS 24- 76.5 -103 prior to the effective date of this Agreement. 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, 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 Agreement Professional Services Page 7 ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 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 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. Agreement Professional Services Page 8 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] By: [Name] Title: Title: Date: Date: In Approved as to form: City Attorney's Office [Signature] [Name] Agreement Professional Services Page 9 EXHIBIT A: SCOPE OF WORK The real estate broker will act as the Owner's Agent for the City of Aspen. Duties and Services shall include but are not limited to: • Performing the terms of any written or oral agreement with buyer and /or seller • Presenting all offers to and from buyer and /or seller in a timely manner regardless of whether buyer and /or seller is already a party to a contract to purchase the property • Disclosing to buyer and /or seller adverse material facts actually known by Broker • Advising buyer and /or seller regarding the transaction and to obtain expert advice as to material matters about which Broker knows but the specifics of which are beyond the expertise of Broker • Accounting in a timely manner for all money and property received • Keeping City fully informed regarding the transaction. • Be able to offer expert advice on general market conditions and on specific properties whether the City is interested in buying or selling. • Evaluate proposals brought to the city by private entities. • Presenting opportunities to purchases and sales to City Council • Answering questions about general market conditions and advising City Council on purchases, proposals, and selling City properties. • Use only 2011, or later revisions of, Colorado Real Estate Commission Approved Contracts and Forms • Under no circumstances shall the broker act as a transaction agent. The City may decide it is in our best interest to sell a property and the Broker may be expected to manage that transaction as well. There may also be circumstances where the City receives direct offers to buy or sell real property where the City may or may not determine to use the Broker's services. Specifically excluded is the Zupansis property which is currently in negotiations with a potential buyer. Affordable housing units for sale are listed and sold by the Aspen Pitkin Housing Authority, and are excluded from the Broker's responsibilities. Transactions between the City and non - profit institutions are excluded from the Broker's responsibilities. The Broker shall not disclose the following information without the informed consent of the City: • That the City is willing to pay more than the purchase price offered, or accept less than the listed price. • What the City's motivating factors are • That the City will agree to financing terms other than those offered • Any material information about the City unless disclosure is required by law or failure to disclose such information would constitute fraud or dishonest dealings • Any facts or suspicions regarding circumstances that could psychologically impact or stigmatize the property Agreement'Professional Services Page 10 Contract Period The contract between the City and the successful Broker shall be for a period of one year with two (2) one year renewal options. The City of Aspen further reserves the right to hire another broker for consulting services in cases where cases of perceived conflict of interest could exist. Agreement Professional Services Page 11 EXHIBIT B: FEE SCHEDULE Commissions to be paid at the following rates • Under $5,000.000 pays 2% • $5,000,000 to $10,000,000 pays 1.5% • Greater than $10,000,000 pays I% 3% would be added to the above structure for coop transactions with another broker, or if the City's broker handles.both selling and listing side of closed transactions. Consulting will be billed to the City at the rate of $100 per hour, including research in addition to the broker's normal research activities, written and presented reports, and Broker Value Opinion reports. Periodic briefing meetings with the City's real estate manager (the Capital Asset Direct or other assigned or included staffers) will be considered a normal part of business not subject to this fee. Agreement Professional Services Page 12 I B] *ADAMS AND COMPANY 534 E. Hopkins Avenue Aspen, CO 81611 4 Andrew Ernemann 5 Ph: 970 - 922 -2111 Fax: 970 - 920 -2927 6 he printed portions of this form, except differentiated additions, have been approved by the Colorado 7 8 Real Estate Commission. (BC60 -8 -10) (Mandatory 1 -11) 9 i 0 THIS IS A BINDING CONTRACT. THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE 1.2 PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. 13 14 Compensation charged by brokerage firms is not set by law. Such charges are established by each real 15 16 estate brokerage firm. 17 18 DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE BUYER AGENCY, 19 20 SELLER AGENCY OR TRANSACTION - BROKERAGE. 21 2.2. 23 EXCLUSIVE RIGHT -TO -BUY LISTING CONTRACT 24 25 26 ® BUYER AGENCY ❑ TRANSACTION - BROKERAGE 27 28 29 Date: 511012012 30 31 32 1. AGREEMENT. Buyer and Brokerage Firm enter into this exclusive, irrevocable contract (Buyer Listing 34 Contract) as of the date set forth above. 35 36 37 2. BROKER AND BROKERAGE FIRM. 38 39 40 ® 2.1. Multiple- Person Firm. If this box is checked, the individual designated by Brokerage Firm to serve 41 as the broker of Buyer and to perform the services for Buyer required by this Buyer Listing Contract is called 42 43 Broker. If more than one individual is so designated, then references in this Buyer Listing Contract to Broker shall 44 include all persons so designated, including substitute or additional brokers. The brokerage relationship exists 45 only with Broker and does not extend to the employing broker, Brokerage Firm or to any other brokers employed a7or engaged by Brokerage Firm who are not so designated. .48 49 ❑ 50 2.2. Oine Persom Firmi. If this box is eheeked, Broker 49 a real estate brokerage firrm with emly one 57 eensed 118tdral person. Referenees *in this Buyei Listing Gontreet to Broker or Brokerage Firm mean bet 52 eemsed nattiral persom and brokerage firm, who serve as the broker of Btiyer and perform the sefyiees fef Btqff 53 54 reqti red by this Buyer Listing ' 55 5 / 3. DEFINED TERMS. 58 3.1. Buyer: City of Aspen 59 60 and any other person or entity on whose behalf the named party acts, directly or indirectly, to Purchase the 61. Property. 62 P Y• . 63 65 3.2. Brokerage Firm: BJ *ADAMS AND COMPANY 66 67 68 3.3. Broker: Andrew Ernemann 69 70 71. 3.4. Property. Property means real estate that substantially meets the following requirements 72 73 or similar real estate acceptable to Buyer: 74 which is located in Pitkin County, Colorado. 75 3.5. Purchase. 76 3.5.1. Purchase means the acquisition of any interest in the Property or the creation of the right to 78 acquire any interest in the Property (including a contract or lease). It also includes an agreement to acquire any 79 ownership interest in an entity that owns the Property. 80 81 ❑ 3.5.2. If this box is checked, Buyer authorizes Broker to negotiate a lease of the - Property. Lease of 82 the Property or Lease means any lease of an interest in the Property. 83 84 3.6. Term. The Term of this Buyer Listing Contract shall begin on 5/28/2012 , and shall continue BC60 -8 -10. EXCLUSIVE RIGHT -TO -BUY LISTING CONTRACT Page I of 6 85 , through the earlier of (1) completion of the Purchase of the Property or Lease of the Property or (2) 513112013 ,97 Broker shall continue to assist in the completion of any purchase or lease for which compensation is payable to 813 Brokerage Firm under § 7 of this contract. 1; 1 90 3.7. Applicability of Terms. A check or similar mark in a box means that such provision is applicable. The 91 abbreviation "N /A" or the word "Deleted" means not applicable. The abbreviation "MEC" (mutual execution of this 92 contract) means the date upon which both parties have signed this Buyer Listing Contract. 93 94 3.8. Day; Computation of Period of Days, Deadline. 95 3.8.1. Day. As used in this Buyer Listing Contract, the term day" shall mean the entire day ending at 96 11:59 p.m., United States Mountain Time (Standard or Daylight Savings as applicable). 97 98 3.8.2. Computation of Period of Days, Deadline. In computing a period of days, when the ending date 99 is not specified, the first day is excluded and the last day is included, e.g., three days after MEC. If any deadline 100 101 falls on a Saturday, Sunday or federal or Colorado state holiday (Holiday), such deadline ®Shall ❑Shall Not be 112 extended to the next day not a Saturday,. Sunday or Holiday. Should neither box be checked, the deadline shall 1.1;3 not be extended. 104 115 1.06 4. BROKERAGE RELATIONSHIP. 107 4.1. If the Buyer Agency box at the top of page 1 is checked, Broker shall represent Buyer as a Buyer's 108 11 {� limited agent (Buyer's Agent). If the Transaction - Brokerage box at the top of page 1 is checked, Broker shall act 111 as a Transaction - Broker. 1 11 4.2. In- Company Transaction — Different Brokers. When the seller and Buyer in a transaction are working t. 1.2 with different brokers, those brokers continue to conduct themselves consistent with the brokerage relationships 1.13 114 they have established. Buyer acknowledges that Brokerage Firm is allowed to offer and pay compensation to 115 brokers within Brokerage Firm working with a seller. 11" 4.3. In- Company Transaction — One Broker. If the seller and Buyer are both working with the same .117 11.8 Broker, Broker shall function as: 119 4.3.1. Buyer's Agent. If the Buyer Agency box at the top of page 1 is checked, the parties agree the 1.211 1.21. following applies: 1.22 4.3.1.1. Buyer Agency Only. Unless the box in § 4.3.1.2 (Buyer Agency Unless Brokerage 123 Relationship with Both) is checked, Broker shall represent Buyer as Buyer's Agent and shall treat the seller as 124 a customer. A customer is a party to a transaction with whom Broker has no brokerage relationship. Broker shall 125 126 disclose to such customer Broker's relationship with Buyer. 127 ❑ 4.3.1.2. Buyer Agency Unless Brokerage Relationship with Both. If this box is checked, 29 Broker shall represent Buyer as Buyers €TM's Agent and shall treat the seller as a customer, unless Broker 1.30 currently has or enters into an agency or Transaction - Brokerage relationship with the seller, in which case Broker 131 shall act as a Transaction - Broker. 1"32 133 4.3.2. Transaetion Broker. If the Tramseet'an Brokerage box at the top of page q is eheeked, or im the evem 1.34 neither box is eheeked, B . roker sha" work with Buyer as a Tramseetiom Broker. A Tramsaction Bra' er shall perfartr 135 the duties deseribed im § 5 and foeilitate purehose transaetions without beimg an advaeate or agent for either party. 1.36 137 f the seller and Bdye&- are erkimg with the samie broker, Broker shall eeMt'mtie te ftimetiaii as a Tramseetiom 138 Broker. 139 141 141 5 BROKERAGE DUTIES. Brokerage Firm, acting through Broker, as either a Transaction - Broker or a Buyer's 1.42 Agent, shall perform the following Uniform Duties when working with Buyer: 143 5.1. Broker shall exercise reasonable skill and care for Buyer, including but not limited to the following: 144 1.45 5.1.1. Performing the terms of any written or oral agreement with Buyer; 1.46 5.1.2. Presenting all offers to and from Buyer in a timely manner regardless of whether Buyer is already 147 a party to a contract to Purchase the Property; 1` 149 9 5.1.3. Disclosing to Buyer adverse material facts actually known by Broker; 150 5.1.4. Advising Buyer regarding the transaction and advising Buyer to obtain expert advice as to material 1-5.1. matters about which Broker knows but the specifics of which are beyond the expertise of Broker; 153 53 5.1.5. Accounting in a timely manner for all money and property received; and 1. ,154 5.1.6. Keeping Buyer fully informed regarding the transaction. 155 5.2. Broker shall not disclose the following information without the informed consent of Buyer: 156 157 5.2.1. That Buyer is willing to pay more than the purchase price offered for the Property; 1.58 5.2.2. What Buyer's motivating factors are; 1.59 5.2.3. That Buyer will agree to financing terms other than those offered; 161' 161. 5.2.4. Any material information about Buyer-unless disclosure is required by law or failure to disclose 162, such information would constitute fraud or dishonest dealing; or 163 5.2.5. Any facts or suspicions regarding circumstances that could psychologically impact or stigmatize 164 165 the Property. 166 5.3. Buyer consents to Broker's disclosure of Buyer's confidential information to the supervising broker or BC60 -8 -10. EXCLUSIVE RIGHT -TO -BUY LISTING CONTRACT Page 2 of 6 167 1.68 169 170 1.71. 1.72 173 174 175 176 177 1.78 179 180 181 182 183 184 1.85 186 187 188 189 190 191 192 193 194 1.95 196 197 198 199 200 201. 202 2.03 204 205 206 207 208 209 21.0 21.1 2.1.2 213 214 215 216 217 21.8 2.19 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 2-14 245 246 247 246 249 designee for the purpose of proper supervision, provided such supervising broker or designee shall not further disclose such information without consent of Buyer, or use such information to the detriment of Buyer. 5.4. Broker may show properties in which the Buyer is interested to other prospective buyers without breaching any duty or obligation to such Buyer. Broker shall not be prohibited from showing competing buyers the same property and from assisting competing buyers in attempting to purchase a particular property. 5.5. Broker shall not be obligated to seek other properties while Buyer is already a party to a contract to purchase property. 5.6. Broker has no duty to conduct an independent inspection of the Property for the benefit of Buyer and has no duty to independently verify the accuracy or completeness of statements made by a seller or independent inspectors. Broker has no duty to conduct an independent investigation of Buyer's financial condition or to verify the accuracy or completeness of any statement made by Buyer. 5.7. Broker shall disclose to any prospective seller all adverse material facts actually known by Broker, including but not limited to adverse material facts concerning Buyer's financial ability to perform the terms of the transaction and whether Buyer intends to occupy the Property as a principal residence. 5.8. Buyer understands that Buyer shall not be liable for Broker's acts or omissions that have not been approved, directed, or ratified by Buyer. 6. ADDITIONAL DUTIES OF BUYERS AGENT. If the Buyer Agency box at the top of page 1 is checked, Broker is Buyer's Agent, with the following additional duties: 6.1. Promoting the interests of Buyer with the utmost good faith, loyalty and fidelity; 6.2. Seeking a price and terms that are acceptable to Buyer; and 6.3. Counseling Buyer as to any material benefits or risks of a transaction that are actually known by Broker. 7. COMPENSATION TO BROKERAGE FIRM. In consideration of the services to be performed by Broker, Brokerage Firm shall be paid as set forth in this section, with no discount or allowance for any efforts made by Buyer or any other person. Brokerage Firm shall be entitled to receive additional compensation, bonuses, and incentives paid by listing brokerage firm or seller. Broker shall inform Buyer of the fee to be paid to Brokerage Firm and, if there is a written agreement, Broker shall supply a copy to Buyer, upon written request of Buyer. Check Compensation Arrangement: ® 7.1. Listing Brokerage Firm or Seller May Pay. Buyer IS Obligated to Pay. Broker is authorized and instructed to request payment of the Brokerage Firm's fee from the listing brokerage firm or seller. Buyer shall be obligated to pay any portion of Brokerage Firm's fee as described in § 7.2 which is not paid by the listing brokerage firm or seller. ® 7.2. Buyer Will Pay. Buyer shall be obligated to pay the Brokerage Firma €TMs fee as described in § 7.2.1 (Success Fee) unless the box in A§ 7.3 (Listing Brokerage Firm or Seller May Pay. Buyer is NOT Obligated to Pays checked. 7.2.1. Success Fee. Brokerage Firm shall be paid by Buyer as follows: 7.2.1.1. Amount. A fee equal to % of the purchase price, but not less than $ except as provided in subsection § 7.2.1.2. 7.2.1.2. Adjusted Amount. ❑ Section 18. Additional Provisions or ® Other Section 7.2.4 below 7.2.1.3. When Earned. The Success Fee is earned by the Brokerage Firm upon the Purchase of the Property and is payable upon closing of the transaction. If any transaction fails to close as a result of the seller's default, with no fault on the part of Buyer, the Success Fee shall be waived. If any transaction fails to close as a result of Buyer's default, in whole or in part, the Success Fee shall not be waived; such fee shall be payable upon Buyers default, but in any event not later than the date that the closing of the transaction was to have occurred. ❑ 7.2.2. Hourly Fee. Brokerage Firm shall pay Brokerage Firm $ n/a per hour for time spent by Broker pursuant to this Buyer Listing Contract,up to a maximum total fee of $ n/a . This hourly fee shall be paid to Brokerage Firm upon receipt of an invoice from Brokerage Firm. ❑ 7.2.3. Retainer Fee. Buyer shall pay Brokerage Firm a nonrefundable retainer fee of $ n/a due and payable upon signing of this Buyer Listing Contract. This amount ❑Shall ❑Shall Not be credited against other fees payable to Brokerage Firm under this section. ® 7.2.4. Other Compensation. The Success Fee shall be commensurate with the Contract executed between the City of Aspen and Andrew Ernemann for real estate broker services. 7.3. Listing Brokerage Firm c. Seller May Pay. Buyer d to Pay. Brol r 48 Odtl�arwped te) obtain payment of the Brokerage Form's fee from the listing brokerage firrm or seller. Provided Buyer has fulfilled BC60 -8 -10. EXCLUSIVE RIGHT -TO -BUY LISTING CONTRACT Page 3 of 6 250 Buyer's obligatiems on this Buyer Listimg Gantreet, Buyer shall not be obligated to pay Brokerage Firm's fee. If m-e 251 252 box is eheeked above, then § 7.2 (Buyer Will Pay) shall apply. 253 ❑ 7.4. Lease Fee. If the box in § 3.5.2 is checked and if Brokerage Firm is unable to obtain payment of 254 255 Brokerage FirmAETMs entire fee from listing brokerage firm or landlord, Buyer shall pay the Brokerage Firm a fee as 256 follows, less any amounts paid by the listing brokerage firm or landlord: 257 7.4.1. Amount. $ Per Square Foot per up to a maximum of 2513 259 or % of the ❑ Net ❑ Gross amount of rent payable under the lease up to a maximum of 260 7.4.2. Adjusted Amount. ❑ See Section 18. Additional Provisions or ❑ Other 261 262 7.4.3. Other. 263 7.4.4. When Earned. This lease fee is earned upon the execution of the Lease. One -half of this 264 lease fee shall be paid upon mutual execution of the Lease and one -half upon possession of the premises by 265 266 tenant or as follows: If the Lease, executed after the date of this Buyer Listing 267 Contract, contains an option to extend or renew, Brokerage Firm ❑Shall []Shall Not be paid a fee upon 269 269 exercise of such extension or renewal option. If Brokerage Firm is to be paid a fee for such extension or renewal, 270 the amount of such fee and its payment shall be as follows: 271 7.5. Holdover Period. Brokerage Firma €TMs fee shall apply to Property contracted for (or leased if A§ 272 3.5.2 is checked) during the Term of this Buyer Listing Contract or any extensions and shall also apply to Property 273 274 contracted for or leased within 180 calendar days after this Buyer Listing Contract expires or is terminated 275 (Holdover Period) (1) if the Property is one on which Broker negotiated and (2) if Broker submitted its address or 276 277 other description in writing to.Buyer during the Term, (Submitted Property). Provided, however, Buyer ®Shall 278 ❑Shall Not owe the compensation to Broker under A §A§ 7.2.1, 7.2.2, 7.2.4 and 7.4 as indicated, if a 279 commission is earned by another real estate brokerage firm acting pursuant to an exclusive agreement with Buyer 280 281 entered into during the Holdover Period, and a Sale or Lease of the Submitted Property is consummated. If no box 282 is checked above in this A§ 7.5, then Buyer shall not owe the commission to Brokerage Firm. 293 294 285 8. LIMITATION ON THIRD -PARTY COMPENSATION. Neither Broker nor Brokerage Firm, except as set forth in 286 § 7, shall accept compensation from any other person or entity in connection with the Property without the written 287 . consent of Buyer. Additionally, neither Broker nor Brokerage Firm shall be permitted to assess and receive mark - 288 289 ups or other compensation for services performed by any third party or affiliated business entity unless Buyer 290 signs a separate written consent for such services. 291 292 293 9. BUYER'S OBLIGATIONS TO BROKER. Buyer agrees to conduct all negotiations for the Property only 294 through Broker, and to refer to Broker all communications received in any form from real estate brokers, 295 prospective sellers, or any other source during the Term of this Buyer Listing Contract. Buyer represents that 296 297 Buyer ❑Is ®Is Not currently a party to any agreement with any other broker to represent or assist Buyer in the 298 location or purchase of property. 299 300 3o1 10. COST OF SERVICES OR PRODUCTS OBTAINED FROM OUTSIDE SOURCES. Broker will not obtain or 302 order products or services from outside sources unless Buyer has agreed to pay for them promptly when due J03 (examples: surveys, radon tests, soil tests, title reports, engineering studies, property inspections). Neither Broker 304 305 nor Brokerage Firm shall be obligated to advance funds for Buyer. Buyer shall reimburse Brokerage Firm for 306 payments made by Brokerage Firm for other products or services authorized by Buyer. 307 308 3o9 11. BROKERAGE SERVICES: SHOWING PREMISES. 31.0 11.1 Brokerage Services. The Broker shall provide brokerage services to Buyer. The following additional 311 312 tasks shall be performed by Broker: as required in order to meet responsibilities fore fully described 313 in Section 3.4. 314 11.2 Showing Properties. Buyer acknowledges that Broker has explained the possible methods used by 315 :3 listing brokers and sellers to show properties, and the limitations (if any) on Buyer and Broker being able to 1.6 31.7 access properties due to such methods. Brokers €TMs limitations on accessing premises are as follows: 318 availability of the Property . Broker, through Brokerage Firm, has access to the following 320 multi le.listin services and property information services: 32o P 9 P P Y 321 Aspen /Glenwood Springs Board of Realtors 322 323 324 12. DISCLOSURE OF BUYER'S IDENTITY. Broker ❑Does ❑Does Not have Buyer's permission to disclose 325 Buyer's identity to third parties.without prior written consent of Buyer. 326 327 3.28 13. DISCLOSURE OF SETTLEMENT SERVICE COSTS. Buyer acknowledges that costs, quality, and extent of 329 service vary between different settlement service providers (e.g., attorneys, lenders, inspectors and title 330 3,3 1 companies). :332 BC60 -8 -10. EXCLUSIVE RIGHT -TO -BUY LISTING CONTRACT Page 4 of 6 333 14. NONDISCRIMINATION. The parties agree not to discriminate unlawfully against any prospective seller :3:34 3 35 because of the race, creed, color, sex, sexual orientation, marital status, familial status, physical or mental 336 disability, handicap, religion, national origin or ancestry of such person. 337 338 15. RECOMMENDATION OF LEGAL AND TAX COUNSEL. B signing this document, Buyer acknowledges 339 Y 9 9 Y 9 340 that Broker has advised that this document has important legal consequences and has recommended consultation 341 with legal and tax or other counsel, before signing this Buyer Listing Contract. 342 343 344 16. MEDIATION. If a dispute arises relating to this Buyer Listing Contract, prior to or after closing, and is not 345 resolved, the parties shall first proceed in good faith to submit the matter to mediation. Mediation is a process in 346 347 which the parties meet with an impartial person who helps to resolve the dispute informally and confidentially. 348 Mediators cannot impose binding decisions. The parties to the dispute must agree, in writing, before any 349 settlement is binding. The parties will jointly appoint an acceptable mediator and will share equally in the cost of 35 t such mediation. The mediation, unless otherwise agreed, shall terminate in the event the entire dispute is not 352 resolved within 30 calendar days of the date written notice requesting mediation is. sent by one party to the other 353 at the party's last known address. 354 355 356 17. ATTORNEY FEES. In the event of any arbitration or litigation relating to this Buyer Listing Contract, the 357 arbitrator or court shall award to the prevailing party all reasonable costs and expenses, including attorney and 358 .359 legal fees. 360 361 362 18. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by 363 the Colorado Real Estate Commission.) 364 1. Regarding §20.2, NOTICE, DELIVERY AND CHOICE OF LAW /Electronic Delivery: If Notice is 365 366 delivered via E -mail, Party delivering said Notice shall call other party to confirm receipt of same. 367 368 2. Regarding Paragraph 7.2.1: If a seller fails to close with no fault on the part of Buyer, the 369 370 success fee provided in Section 7.2.1 above shall be waived unless Buyer and /or Listing Broker 371 recover damages from Seller, in which case Broker, along with Listing Broker, shall receive 50% 372 of such funds, not to exceed the commission agreed upon herein. If Buyer is at fault, and Seller 373 374 retains earnest money as liquidated damages, Broker, along with Listing Broker, shall receive 50% 375 of such funds, not to exceed the commission agreed upon herein. 376 377 378 19. ATTACHMENTS. The following are a part of this Buyer Listing Contract: 379 none. 380 381 382 20. NOTICE, DELIVERY AND CHOICE OF LAW. 383 20.1. Physical Delivery. All notices must be in writing, except as provided in § 20.2. Any document, 384 385 including a signed document or notice, delivered to the other party to this Buyer Listing Contract, is effective upon 386 physical receipt. Delivery to Buyer shall be effective when physically received by Buyer, any signator on behalf of 387 Buyer, any named individual of Buyer or representative of Buyer. 388 389 20.2. Electronic Delivery. As an alternative to physical delivery, any document, including any signed 390 document or written notice may be delivered in electronic form only by the following indicated methods: 3 392 91 ® Facsimile ® E -mail ❑ Internet ❑ No Electronic Delivery. Documents with original signatures 393 shall be provided upon request of any party. 394 395 20.3. Choice of Law. This Buyer Listing Contract and all disputes arising hereunder shall be governed by 396 and construed in accordance with the laws of the State of Colorado that would be applicable to Colorado residents 397 who sign a contract in this state for property located in Colorado. 398 399 400 21. MODIFICATION OF THIS CONTRACT. No subsequent modification of any of the terms of this Buyer Listing 401 Contract shall be valid, binding upon the parties, or enforceable unless in writing and signed by the parties. 402 403 404 22. COUNTERPARTS. If more than one person is named as a Buyer herein, this Buyer Listing Contract may be 405 executed by each Buyer, separately, and when so executed, such copies taken together with one executed by 406 407 Broker on behalf of Brokerage Firm shall be deemed to be a full and complete contract between the parties. 408 409 23. ENTIRE AGREEMENT. This agreement constitutes the entire contract between the parties and any prior 410 4 11 agreements, whether oral or written, have been merged and integrated into this Buyer Listing Contract. 4 412 413 24. COPY OF CONTRACT. Buyer acknowledges receipt of a copy of this Buyer Listing Contract signed by 414 Broker, including g all attachments. 416 BC60 -8 -10. EXCLUSIVE RIGHT -TO -BUY LISTING CONTRACT Page 5 of 6 417 25. MEGAN'S LAW. If the presence of a registered sex offender is a matter of concern to Buyer, Buyer 4.18 4 19 understands that Buyer must contact local law enforcement officials regarding obtaining such information. 420 421 Brokerage Firm authorizes Broker to execute this Buyer Listing Contract on behalf of Brokerage Firm. 422 423 -- 424 42' Buyer: Date: City of Aspen By Address: Phone: Electronic Address: Fax: Date: 511012012 Broker: Andrew Ernemann Brokerage Firm's Name: BJ *ADAMS AND COMPANY Address: 534 E. Hopkins Avenue Aspen, CO 81611 Ph: 970 - 922 -2111 Fax: 970- 920 -2927 Electronic Address: andrew@bjac.net BC60 -8 -10 EXCLUSIVE RIGHT -TO -BUY LISTING CONTRACT CTM eaContracts - - ;20:11 CTM Software Corp. BC60 -8 -10. EXCLUSIVE RIGHT -TO -BUY LISTING CONTRACT Page 6 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 .61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 BJ *ADAMS AND COMPANY ,,, ,, ,,,,,�,, ,,,,, ,., MVA 534 E. -Hopkins Avenue Aspen, CO 81611 f Andrew Ernemann Ph: 970 - 922 -2111 Fax: 970-920-2927 the printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. (CBS3- 10 -11) (Mandatory 1 -12) THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. CONTRACT TO BUY AND SELL REAL ESTATE (COMMERCIAL) (❑ Property with No Residences) (❑ Property with Residences - Residential Addendum Attached) Date: 411812012 AGREEMENT 1. AGREEMENT. Buyer, identified in § 2.1, agrees to buy, and Seller, identified in § 2.3, agrees to sell, the Property described below on the terms and conditions set forth in this contract (Contract). 2. PARTIES AND PROPERTY. 2.1 Buyer. Buyer, , will take title to the Property described below as ❑ Joint Tenants ❑ Tenants In Common ❑ Other 2.2. Assignability and Inurement. This Contract El Shall Shall Not be assignable by Buyer without Seller's prior written consent. Except as so restricted, this Contract shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the parties. 2.3. Seller. Seller, , is the current owner of the Property described below. 2.4. Property. The Property is the following legally described real estate in the County of Colorado: known as No. CO, together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, and all interest of Seller in vacated streets and alleys adjacent thereto, except as herein excluded (Property). 2.5. Inclusions. The Purchase Price includes the following items (Inclusions): 2:5.1. Fixtures. If attached to the Property on the date of this Contract: lighting, heating, plumbing, ventilating and air conditioning fixtures, inside telephone, network and coaxial (cable) wiring and connecting blocks /jacks, floor coverings, intercom systems, sprinkler systems and.controls, garage door openers including remote controls. Other Fixtures: If any fixtures are attached to the Property after the date of this Contract, such additional fixtures are also included in the Purchase Price. 2.5.2. Personal Property. If on the Property whether attached or hot on the date of this Contract: storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings, curtain rods, drapery rods, heating stoves, storage sheds, and all keys. If checked, the following are included: ❑ Water Softeners ❑ Smoke /Fire Detectors ❑ Security Systems ❑ Satellite Systems (including satellite dishes). Other Personal Property:, The Personal Property to be conveyed at Closing shall be conveyed by Seller free and clear of all taxes (except personal property taxes for'the year of Closing), liens and encumbrances, except Conveyance shall be by bill of sale,or other applicable legal instrument. 2.5.3. Trade Fixtures: With respect to trade fixtures, Seller and Buyer agree as follows: The Trade Fixtures to be conveyed at Closing shall be conveyed by Seller free and clear of all taxes (except personal property taxes for the year of Closing), liens and encumbrances, except Conveyance shall be by bill of sale or other applicable legal instrument. 2.5.4. Parking and Storage Facilities. ❑ Use Only ❑ Ownership of the following parking CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 1 of 15 % CTMeContracts.com - 02012 CTM Software Corp. 84 facilities: ; and ❑ Use Only ❑ Ownership 85 86 of the following storage facilities: 87 88 2.5.5. Water Rights, Water and Sewer Taps. 2.5.5.1. Deeded Water 89 90 Rights. The following legally described water rights: 91 92 93 Any water rights shall be conveyed by LJ Deed LJ Other applicable legal 94 instrument. 96 2.5.4.2. Well Rights. If any water well is to be transferred to Buyer, Seller agrees to supply 97 required information about such well to Buyer. Buyer understands that if the well to be transferred is a Small 98 Capacity Well or a Domestic Exempt Water Well used for ordinary household purposes, Buyer shall, prior to or at 100 Closing, complete a Change in Ownership form for the well. If an existing well has not been registered with the 101 Colorado Division of Water Resources in the Department of Natural Resources (Division), Buyer shall complete a 102 registration of existing well form for the well and pay the cost of registration. If no person will be providing a closing 103 104 service in connection with the transaction, Buyer shall file the form with the Division within sixty days after Closing. 105 The Well Permit # is 106 107 2.5.5.3. 11 Water Stock Certificates: 108 109 2.5.5.4. LJ Water Tap Sewer Tap 110 111 112 Note: Buyer is advised to obtain, from the provider, written confirmation of the amount remaining to be 113 114 paid, if any, time and other restrictions for transfer and use of the tap. 115 116 2.5.5.5. Other Rights 117 118 119 2.6. Exclusions. The following items are excluded (Exclusions): 120 121 122 123 124 3. DATES AND DEADLINES. 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 Item No.» Reference Event Date or Deadline f1 1§ 4.2 Alternative Earnest Money Deadline Title and Association f2 § 7.1 Record Title Deadline 3 § 7.2 Exceptions Request Deadline °4 § 8.1 Record Title Objection Deadline 5 § 8.2 Off - Record Title Deadline 6 § 8.2 Off - Record Title Objection Deadline 7 § 8.3 Title Resolution Deadline 8 § 7.3 Association Documents Deadline 9 § 7.3 Association Documents Objection Deadline 110 § 8.5 Right of First Refusal Deadline Seller's Property Disclosure 11 1§ 10.1 Seller's Property Disclosure Deadline Loan and Credit 112 § 5.1 Loan Application Deadline 13 § 5.2 Loan Conditions Deadline 14 § 5.3 Buyer's Credit Information Deadline 15 § 5.3 Disapproval of Buyer's Credit Information Deadline 16 § 5.4 Existing Loan Documents Deadline 17 1§ 5.4 Existing Loan Documents Objection Deadline 18 1§ 5.4 Loan Transfer Approval Deadline Appraisal 19 1§ 6.2 Appraisal Deadline 20 1§ 6.2 Appraisal Objection Deadline Survey 121 1§ 9.1 Current Survey Deadline 165 166 22 1§ 9.2 Current Survey Objection Deadline 167 1 Inspection and Due Diligence CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 2 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182' 183 184 185 186 187 188 189 190, 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 1,23 § 10.2 Inspection Objection Deadline Amount- 124 § 10.3 Inspection Resolution Deadline Purchase Price 25 § 10.5 Property Insurance Objection Deadline § 4.2 126 § 10.6 Due Diligence Documents Delivery Deadline 3 127 § 10.7 Due Diligence Documents Objection Deadline 128 § 10.8 Environmental Inspection Objection Deadline 129 § 10.8 ADA Evaluation Objection Deadline Seller or Private Financing i30 § 11.1 Tenant Estoppel Statements Deadline 131 § 11.2 Tenant Estoppel Statements Objection Deadline 7 I Closing and Possession 132 § 12.3 Closing Date Cash at Closing 133 §17 Possession Date 134 §17 Possession Time 135 §28 Acceptance Deadline Date 136 §28 Acceptance Deadline.Time 37 38 Note: Applicability of Terms. Any box, blank or line in this Contract left blank or completed with the abbreviation "N /A ", or the word "Deleted" means such provision in Dates and Deadlines (§ 3), including any deadline, is not applicable and the corresponding provision of this Contract to which reference is made is deleted. The abbreviation "MEC" (mutual execution of this Contract) means the date upon which both parties have signed this Contract. 4. PURCHASE PRICE AND TERMS. 4.1. Price and Terms. The Purchase Price set forth below shall be payable in U.S. Dollars by Buyer as follows: Item No _ Reference Item Amount- Amount 1 § 4.1 Purchase Price 12 § 4.2 Earnest Money 3 § 4.5 New Loan 4 § 4.6 Assumption Balance 5 § 4.7 Seller or Private Financing 6 7 8 § 4.3 Cash at Closing 9 ITOTAL 4.2. Earnest Money. The Earnest Money set forth in this section, in the form of , shall be payable to and held by (Earnest Money Holder), in its trust account, on behalf of both Seller and Buyer. The Earnest Money deposit shall be tendered with this Contract unless the parties mutually agree to an Alternative Earnest Money Deadline (§ 3) for its.payment. If Earnest Money Holder is other than the Brokerage Firm identified in § 33 or § 34, Closing Instructions signed by Buyer, Seller and Earnest Money Holder must be obtained on or before delivery of Earnest Money to Earnest Money Holder. The parties authorize delivery of the Earnest Money deposit to the company conducting the Closing (Closing Company), if any, at or before Closing. In the event Earnest Money Holder has agreed to have interest on Earnest Money deposits transferred to a fund established for the purpose of providing affordable housing to Colorado residents, Seller and Buyer acknowledge and agree that any interest accruing on the Earnest Money deposited with the Earnest Money Holder in this transaction shall be transferred to such fund. 4.2.1. Alternative Earnest Money Deadline. The deadline for delivering the Earnest Money, if other than at the time of tender of this Contract is as set forth as the Alternative Earnest Money Deadline (§ 3). 4.2.2. Return of Earnest Money. If Buyer has a Right to Terminate and timely terminates, Buyer shall be entitled to the return of Earnest Money as provided in this Contract. If this Contract is terminated as set forth in § 25 and, except as provided in § 24, if the Earnest Money has not already been returned following CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 3 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 250 receipt of a Notice to Terminate, Seller agrees to execute and return to Buyer or Broker working with Buyer, 252 252 written mutual instructions, i.e., Earnest Money Release form, within three days of Seller's receipt of such form. 253 4.3. Form of Funds; Time of Payment; Funds Available. 254 4.3.1. Good Funds. All amounts payable by the parties at Closing, including any loan 255. 256 proceeds, Cash at Closing and closing costs, shall be in funds that comply with all applicable Colorado laws, 2�7 including electronic transfer funds, certified check, savings and loan teller's check and cashier's check (Good 258 Funds). 259 260 4.3.2. Available Funds. All funds required to be paid at Closing or as otherwise agreed in 261 writing between the parties shall be timely paid to allow disbursement by Closing Company at Closing OR SUCH 262 PARTY SHALL BE IN DEFAULT. Buyer represents that Buyer, as of the date of this Contract, ❑ Does ❑ Does 264 264 Not have funds that are immediately verifiable and available in an amount not less than the amount stated as 265 Cash at Closing in § 4.1. 266 4.4. Seller Concession. Seller, at Closing, shall credit, as directed by Buyer, an 267 268 amount of $ to assist with Buyer's closing costs (Seller Concession). Seller Concession is in 269 addition to any sum Seller has agreed to pay or credit Buyer elsewhere in this Contract. Seller Concession shall 270 be reduced to the extent it exceeds the amount allowed by Buyer's lender as set forth in the Closing Statement, 271 272 at Closing. - 273 274 4.5. New Loan. 275 4.5.1. Buyer to Pay Loan Costs. Buyer, except as provided in § 4.4, if applicable, shall timely pay 276 Buyer's loan costs, loan discount points, prepaid items and loan origination fees, as required by lender. 277 278 4.5.2. Buyer May Select Financing. Buyer may pay in cash or select financing appropriate and 279 acceptable to Buyer, including a different loan than initially sought, except as restricted in § 4.5.3 or § 30, 280 (Additional Provisions). 282 282 4.5.3. Loan Limitations. Buyer may P urchase the Property using either of the following t YP es of 283 loan: ❑ Conventional ❑ Other 284 4.6. Assumption. Buyer agrees to assume and pay an existing loan in the approximate amount of 285 286 the Assumption Balance set forth in §4.1, presently payable at $ per including 287 principal and interest presently at the rate of % per annum, and also including escrow for the following as 288 289 p Y indicated: ❑Real Estate Taxes El Pro Property Insurance Premium and El 290 291 Buyer agrees to pay a loan transfer fee not to exceed $ At the time of assumption, 292 293 the new interest rate shall not exceed % per annum and the new payment shall not exceed $ 294 per principal and interest, plus escrow, if any. If the actual principal balance of the existing loan at 295 Closing is less than the Assumption Balance, which causes the amount of cash required from Buyer at Closing to 296 9 P q Y 9 297 be increased by more than $ then Buyer shall have the Right to Terminate under § 25.1, on or before 298 Closing Date (§ 3), based on the reduced amount of the actual principal balance. 299 300 Seller ❑Shall ❑Shall Not be released from liability on said loan. If applicable, compliance with the 301 requirements for release from liability shall be evidenced by delivery ❑ on or before Loan Transfer Approval 302 Deadline 3 ❑ at Closing of an appropriate letter of commitment from lender. An cost, a able for release of 303 (§ ) 9 Y P Y 304 liability shall be paid by in an amount not to exceed $ 305 4.7. Seller or Private Financing. Buyer agrees to execute a promissory note payableto: 306 307 as ❑ Joint Tenants ❑ Tenants in Common ❑ Other 308 on the note form as indicated: ❑ (Default Rate) NTD81 -10 -06 309 11 y a Ist Other secured b , 2nd, etc. deed of trust 310 ( ) 311 encumbering the Property, using the form as indicated: 312 ❑ Due on TransferA,A - Strict (TD72 -8 -10) ❑ Due on Transfer - Creditworthy (TD73 -8 -10) ❑ Assumable 313 314 -Not Due on Transfer (TD74 -8 -10) ❑ Other . 315 The promissory note shall be amortized on the basis of ❑ Years ❑Months , payable at $ 316 per including principal and interest at the rate of % per annum. Payments shall 317 P 9P� P P Y 318 commence and shall be due on the day of each succeeding If not sooner 319 paid, the balance of principal and accrued interest shall be due and payable after Closing. 320 321 Payments ❑Shall ❑Shall Not be increased by of estimated annual real estate taxes, and 322 ❑ Shall ❑Shall Not be increased by of estimated annual property insurance premium. The loan shall 323 324 also contain the following terms: (1) if any payment is not received within days after its due date, a late 325 charge of % of such payment shall be due; (2) interest on lender disbursements under the deed of 326 327 trust shall be %per annum; (3) default interest rate shall be % per annum; (4) Buyer may 328 prepay without a penalty except ; and (5) Buyer ❑Shall 329 ❑Shall Not execute and deliver, at Closing, a Security Agreement and UCC -1 Financing Statement granting the 330 331 holder of the promissory note a (1st, 2nd, etc.) lien on the personal property included in this sale. 332 Buyer ❑Shall. ❑Shall Not provide a mortgagee's title insurance policy, at Buyer's expense. 333 CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 4 of 15 CTMeContracts.com - 02012 CTM Software Corp. 334 335 TRANSACTION PROVISIONS 336 337 338 5. FINANCING CONDITIONS AND OBLIGATIONS. 339 5.1. Loan Application. If Buyer is to pay all or part of the Purchase Price by obtaining one or more new 340 loans (New Loan), or if an existing loan is not to be released at Closing, Buyer, if required by such lender, shall 341 342 make an application verifiable by such lender, on or before Loan Application Deadline (§ 3) and exercise 343 reasonable efforts to obtain such loan or approval. 344 5.2. Loan Conditions. If Buyer is to pay all or part of the Purchase Price with a New Loan, this Contract 345 346 is conditional upon Buyer determining, in Buyer's sole subjective discretion, whether the New Loan is satisfactory 347 to Buyer, including its availability, payments, interest rate, terms, conditions, and cost of such New Loan. This 348 condition is for the benefit of Buyer. Buyer shall have.the Right to Terminate under § 25.1, on or before Loan 349 350 Conditions Deadline (§ 3), if the New Loan is not satisfactory to Buyer, in Buyer's sole subjective discretion. IF 351 SELLER DOES NOT TIMELY RECEIVE WRITTEN NOTICE TO TERMINATE, BUYER'S EARNEST MONEY 352 SHALL BE NONREFUNDABLE, except as otherwise provided in this Contract (e.g., Appraisal, Title, Survey). 353 354, 5.3. Credit Information and Buyer's New Senior Loan. If Buyer is to pay all or part of the Purchase 355 Price by executing a promissory note in favor of Seller, or if an existing loan is not to be released at Closing, this 356 Contract is conditional (for the benefit of Seller) upon Seller's approval of Buyer's financial ability and 357 35$ creditworthiness, which approval shall be at Seller's sole subjective discretion. In such case: (1) Buyer shall " 359 supply to Seller by Buyer's Credit Information Deadline (§ 3), at Buyer's expense, information and documents 360 (including a current credit report) concerning. Buyer's financial, employment and credit condition and Buyer's New 361 Senior Loan, defined below, if any; (2) Buyer consents that Seller may verify Buyer's financial ability and 362 363 creditworthiness; (3) any such information and documents received by Seller shall be held by Seller in confidence, 364 and not released to others except to protect Seller's,interest in this transaction; and (4) in the event Buyer is to 365 366 execute a promissory note secured by a deed of trust in favor of Seller, this Contract is conditional (for the benefit 367 of Seller) upon Seller's approval of the terms and conditions of any New Loan to be obtained by Buyer if the deed 368 of trust to Seller is to be subordinate to Buyer's New Loan (Buyer's New Senior Loan). If the Cash at Closing is 369 less than as set forth in § 4.1 of this Contract or Buyer's New Senior Loan changes from that approved by Seller, 370 371 Seller shall have the Right to Terminate under § 25.1, at or before Closing. If Seller disapproves of Buyer's financial 372 ability, creditworthiness or Buyer's New Senior Loan, in Seller's sole subjective discretion, Seller shall have the 373 374 Right to Terminate under § 25.1, on or before Disapproval of Buyer's Credit Information Deadline (§ 3). 375 5.4. Existing Loan Review. If an existing loan is not to be released at Closing, Seller shall deliver copies 376 of the loan documents .(including note, deed of trust, and any modifications) to Buyer by Existing Loan 377 378 Documents Deadline (§ 3). For the benefit of Buyer,-this Contract is conditional upon Buyer's review and 379 approval of the provisions of such loan documents. Buyer shall have the Right to terminate under § 25.1, on or 380 before Existing Loan Documents Objection Deadline (§ 3), based on any unsatisfactory provision of such loan 381 documents, in Buyer's sole subjective discretion. If the lender's approval of a transfer of the Property is required, 382 383 this Contract is conditional upon Buyer's obtaining such approval without change in the terms of such loan, except 384 as set forth in § 4.6. If lender's approval is not obtained by Loan Transfer Approval Deadline (§ 3), this Contract 385 shall terminate on such deadline. Seller shall have the Right to Terminate under § 25.1, on or before Closing, in 386 387. Seller's sole subjective discretion, if Seller is to be released from liability under such existing loan and Buyer does 388 not obtain such compliance as set forth in § 4.6. 389 390 391 6. APPRAISAL PROVISIONS. 392 6.1. Lender Property Requirements. If the lender imposes any requirements or repairs (Requirements) to 393 394 be made to the Property roof repair, repainting), beyond those matters already agreed to by Seller in this 395 Contract, Seller may terminate this Contract (notwithstanding § 10 of this Contract). Seller shall have the Right to 396 Terminate under § 25.1, on or before three days following Seller's receipt of the Requirements, based on any 397 unsatisfactory Requirements, in Seller's sole subjective discretion. Seller's right to terminate in this 6.1 shall not 398 ry q 1 9 § 399 apply if on or before any termination by Seller pursuant to this § 6.1: (1) the parties enter into a written agreement 400 regarding the Requirements; or (2) the Requirements have been completed; or (3) the satisfaction of the 401 402 Requirements is waived in writing by Buyer. 403 6.2. Appraisal Condition. The applicable Appraisal provision set forth below shall apply to the 404 respective loan type set forth in § 4.5.3, or if a cash transaction, i.e. no financing, § 6.2.1 shall apply. 405 406 6.2.1. Conventional /Other. Buyer shall have the sole option and election to terminate this 407 Contract if the Property's valuation is less than the Purchase Price determined by an appraiser engaged on behalf 408 of . The appraisal shall be received by Buyer or Buyer's lender on'or before Appraisal 409 Deadline 3 Buyer shall have the Right to Terminate under 25.1, on or before Appraisal Objection 410 (§ )� Y 9 § pP J 411 Deadline (§ 3), if the Property's valuation is less than the Purchase Price and Seller's receipt of either a copy of 412 such appraisal or written notice from lender that confirms the Property's valuation is less than the Purchase Price. 414 6.3. Cost of Appraisal. Cost of any appraisal to be obtained after the date of this Contract shall be 415 timely paid by ❑Buyer ❑Seller . 416 417 CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 5 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 418 7. EVIDENCE OF TITLE AND CICASSOCIATION DOCUMENTS. 419 7.1. Evidence of Title. On or before Record Title Deadline (§ 3), Seller shall cause to be 421 furnished to Buyer, at Seller's expense, a current commitment for owner's title insurance policy Title 421. Y P P Y ( 422 Commitment) in anamount equal to the Purchase Price, or if this box is checked, ❑ An Abstract of title certified 423 to a current date. If title insurance is furnished, Seller shall also deliver to Buyer copies of any abstracts of title 424 425 covering all or any portion of the Property (Abstract) in Seller's possession. At Seller's expense, Seller shall cause 426 the title insurance policy to be issued and delivered to Buyer as soon as practicable at or after Closing. The title 427 428 insurance commitment ❑Shall 11 Shall Not commit to delete or insure over the standard exceptions which 429 relate to: (1) parties in possession, (2) unrecorded easements, (3) survey matters, (4) any unrecorded mechanics' 430 liens, (5) gap period (effective date of commitment to date deed is recorded), and (6) unpaid taxes, assessments 431 432 and unredeemed tax sales prior to the year of Closing. Any additional premium expense to obtain this additional 433 coverage shall be paid by ❑ Buyer ❑ Seller . 434 Note: The title insurance company may not agree to delete or insure over any or all of the standard exceptions. 435 Buyer shall have the right to review the Title Commitment, its provisions and Title Documents defined in 7.2 436 Y g p ( § ), 437 and if not satisfactory to Buyer, Buyer may exercise Buyer's rights pursuant to § 8.1. 438 7.2 Copies of Exceptions. On or before Record Title Deadline (§ 3), Seller, at Seller's expense, 439 440 shall furnish to Buyer and (1) copies of any 441 plats, declarations, covenants, conditions and restrictions burdening the Property, and (2) if a Title Commitment is 443 required to be furnished, and if this box is checked ❑ Copies of any Other Documents (or, if illegible, 444 summaries of such documents) listed in the schedule of exceptions (Exceptions). Even if the box is not checked, 445 Seller shall have the obligation to furnish these documents pursuant to this section if requested by Buyer any time 446 447 on or before Exceptions Request Deadline (§ 3). This requirement shall pertain only to documents as shown of 448 record in the office of the clerk and recorder in the county where the Property is located. The abstract or Title 449 Commitment, together with any copies or summaries of such documents furnished pursuant to this section, 451 451 constitute the title documents (collectively, Title Documents). 452 7.3 Homeowners' Association Documents. The term Association Documents consists of all 453 owners' associations (Association) declarations, bylaws, operating agreements, rules and regulations, party wall 454 455 agreements, minutes of most recent annual owners' meeting and minutes of any directors' or managers' meetings 456 during the six -month period immediately preceding the date of this Contract, if any (Governing Documents), most 457 recent financial documents consisting of (1) annual balance sheet, (2) annual income and expenditures statement, 458 459 and (3) annual budget (Financial Documents), if any (collectively, Association Documents). 460 7.3.1. Common Interest Community Disclosure. THE PROPERTY IS LOCATED WITHIN A 461 COMMON INTEREST COMMUNITY AND IS SUBJECT TO THE DECLARATION FOR SUCH COMMUNITY. THE 463 OWNER OF THE PROPERTY WILL BE REQUIRED TO BE A MEMBER OF THE OWNER'S ASSOCIATION FOR 464 THE COMMUNITY AND WILL BE SUBJECT TO THE BYLAWS AND RULES AND REGULATIONS OF THE 465 ASSOCIATION. THE DECLARATION, BYLAWS, AND RULES AND REGULATIONS WILL IMPOSE FINANCIAL 466 467 OBLIGATIONS UPON THE OWNER OF THE PROPERTY, INCLUDING AN OBLIGATION TO PAY 468 ASSESSMENTS OF THE ASSOCIATION. IF THE OWNER DOES NOT PAY THESE ASSESSMENTS, THE 469 ASSOCIATION COULD PLACE A LIEN ON THE PROPERTY AND POSSIBLY SELL IT TO PAY THE DEBT. 471 471 THE DECLARATION, BYLAWS, AND RULES AND REGULATIONS OF THE COMMUNITY MAY PROHIBIT THE 472 OWNER FROM MAKING CHANGES TO THE PROPERTY WITHOUT AN ARCHITECTURAL REVIEW BY THE 473 ASSOCIATION (OR A COMMITTEE OF THE ASSOCIATION) AND THE APPROVAL OF THE ASSOCIATION. 475 PURCHASERS OF PROPERTY WITHIN THE COMMON INTEREST COMMUNITY SHOULD INVESTIGATE THE 476 FINANCIAL OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. PURCHASERS SHOULD CAREFULLY 477 READ THE DECLARATION FOR THE COMMUNITY AND THE BYLAWS AND RULES AND REGULATIONS OF 479 THE ASSOCIATION. 480 7.3.2. Association Documents to Buyer 481 ❑ 482 7.3.2.1. Seller to Provide Association Documents. Seller shall cause the Association 483 Documents to be provided to Buyer, at Seller's expense, on or before Association Documents Deadline (§ 3). 484 ❑ 7.3.2.2. Seller Authorizes Association. Seller authorizes the Association to provide the 485 486 Association Documents to Buyer, at Seller's expense. 487 7.3.2.3. Seller's Obligation. Seller's obligation to provide the Association Documents 488 shall be fulfilled upon Buyer's receipt of the Association Documents, regardless of who provides such documents. ago Note: If neither box in this § 7.3.2 is checked, the provisions of § 7.3.2.1 shall apply. 491 7.3.3. Conditional on Buyer's Review. If the box in either § 7.3.2.1 or § 7.3.2.2 is checked, 492 the provisions of this § 7.3.3 shall apply. Buyer shall have the Right to Terminate under § 25.1, on or before 493 Association Documents Objection Deadline 3 based on an unsatisfactory provision in an of the 494 1 (§ )� Y rY P Y 495 Association Documents, in Buyer's sole subjective discretion. Should Buyer receive the Association Documents 496 after Association Documents Deadline (§ 3), Buyer, at Buyer's option, shall have the Right to Terminate under § 498 25.1 by Buyer's Notice to Terminate received by Seller on or before ten days after Buyer's receipt of the 499 Association Documents. If Buyer does not receive the Association Documents, or if Buyer's Notice to Terminate CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 6 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 500 would otherwise be required to be received by Seller after Closing Date (§ 3), Buyer's Notice to Terminate shall be 501 received b Seller on or before three days prior to Closing Date 3 If Seller does not receive Buyer's Notice to 502 Y Y P� 9 (§ )• Y 503 Terminate within such time, Buyer accepts the provisions of the Association Documents as satisfactory, and 504 Buyer waives any Right to Terminate under this provision, notwithstanding the provisions of § 8.5. 505 506 507 8. RECORD TITLE AND OFF - RECORD TITLE MATTERS. 508 8,1. Record Title Matters. Buyer has the right to review and object to any of the Title Documents (Right 509 to Object, Resolution as set forth in 8.3. Buyer's objection may be based on an unsatisfactory form or content 510 1 ) § Y 1 Y Y rY 511 of Title Commitment, notwithstanding § 13, or any other unsatisfactory title condition, in Buyer's sole subjective 512 discretion. If Buyer objects to any of the Title Documents, Buyer shall cause Seller'to receive Buyer's Notice to 513 Terminate or Notice of Title Objection on or before Record Title Objection Deadline 3 If Title Documents are 514 1 (§ )• 515 not received by Buyer, on or before the Record Title Deadline (§ 3), or if there is an endorsement to the Title 516 Commitment that adds a new Exception to title, a copy of the new Exception to title and the modified Title 517 518 Commitment shall be delivered to Buyer. Buyer shall cause Seller to receive Buyer's Notice to Terminate or Notice 519 of Title Objection on or before ten days after receipt by Buyer of the following documents: (1) any required Title 520 Document not timely received by Buyer, (2) any change to the Title Documents, or (3) endorsement to the Title 521 522 Commitment. If Seller receives Buyer's Notice to Terminate or Notice of Title Objection, pursuant to this § 8.1 523 (Record Title Matters), any title objection by Buyer, and this Contract shall be governed by the provisions set forth 524 in § 8.3 (Right to Object, Resolution). If Seller does not receive Buyer's Notice to Terminate or Notice of Title 525 Objection b the applicable deadlines specified above, Bu er accepts the condition of title as disclosed b the Title 526 1 Y PP� P Y P Y 527 Documents as satisfactory. 528 8.2. Off - Record Title Matters. Seller shall deliver to Buyer, on or before Off - Record Title Deadline (§ 529 530 3 )� true copies of all existing surveys in Seller's possession pertaining to the Property and shall disclose to Buyer 531 all easements, liens (including, without limitation, governmental improvements approved, but not yet installed) or 532 other title matters (including, without limitation, rights of first refusal and options) not shown by public records, of 533 which Seller has actual knowledge. Buyer shall have the right to inspect the Property to investigate if an third 534 9 Y 9 P P Y 9 Y 535 party has any right in the Property not shown by public records (such as an unrecorded easement, unrecorded 536 lease, boundary line discrepancy or water rights). Buyer's Notice to Terminate or Notice of Title Objection of any 537 unsatisfactory condition whether disclosed b Seller or revealed b such inspection, notwithstanding 13 538 rY ( Y Y P 9 § ), in 539 Buyer's sole subjective discretion, shall be received by Seller on or before Off - Record Title Objection Deadline 540 (§ 3). If Seller receives Buyer's Notice to Terminate or Notice of Title Objection pursuant to this § 8.2 (Off- Record 541 Title Matters an title objection b Buyer, and this Contract shall be governed b the provisions set forth in 8.3 5az )� Y 1 Y Y 9 Y P § 543 (Right to Object, Resolution). If Seller does not receive Buyer's Notice to Terminate or Notice of Title Objection, on 544 or before Off - Record Title Objection Deadline (§ 3), Buyer accepts title subject to such rights, if any, of third 545 546 P arties of which Buyer has actual knowledge. 547 8.3. Right to Object, Resolution. Buyer's right to object to any title matters shall include, but not be 549 limited to those matters set forth in §§ 8.1 (Record Title Matters), 8.2 (Off- Record Title Matters) and 13 (Transfer of 550 Title), in Buyer's sole subjective discretion (collectively, Notice of Title Objection). If Buyer objects to any title 551 matter, on or before the applicable deadline, Buyer shall have the choice to either (1) object to the condition of 552 title, or (2) terminate this Contract. 553 8.3.1. Title Resolution. If Seller receives Buyer's Notice of Title Objection, as provided in 8.1 554 Y 1 P § 555 (Record Title Matters) or § 8.2 (Off- Record Title Matters), on or before the applicable deadline, and if Buyer and 556 Seller have not agreed to a written settlement thereof on or before Title Resolution Deadline (§ 3), this Contract 557 shall terminate on the expiration of Title Resolution Deadline 3 unless Seller receives Buyer's written 558 P (§ )� Y 559 withdrawal of Buyer's Notice of Title Objection, (i.e., Buyer's written notice to waive objection to such items and 560 Waives the Right to Terminate for that reason), on or before. expiration of Title Resolution Deadline (§ 3). 562 8.3.2. Right to Terminate — Title Objection. Buyer shall have the Right to Terminate under § 563 25.1, on or before the applicable deadline, based on any unsatisfactory title matter, in Buyer's sole subjective 565 discretion. 566 8.4. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL 567 OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON 569 THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE 570 PLACED AT RISK FOR INCREASED MILL LEVIES AND TAX TO SUPPORT THE SERVICING OF SUCH DEBT 571 WHERE CIRCUMSTANCES ARISE. RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE 572 SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE 574 THE SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY CONTACTING THE COUNTY 575 TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE PROPERTY, AND BY 576 OBTAINING FURTHER INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY 578 CLERK AND RECORDER, OR THE COUNTY ASSESSOR. 579 Buyer shall have the Right to Terminate under § 25.1, on or before Off - Record Title Objection Deadline 580 (§ 3), based on any unsatisfactory effect of the Property being located within a special taxing district, in Buyer's 581 582 sole subjective discretion. 583 8.5. Right of First Refusal or Contract Approval. If there is a right of first refusal on the Property, or a CBS3 -10 -1 1. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 7 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 584 right to approve this Contract, Seller shall promptly submit this Contract according to the terms and conditions of 586 such right. If the holder of the right of first refusal exercises such right or the holder of a right to approve 587 disapproves this Contract, this Contract shall terminate. If the right of first refusal is waived explicitly or expires, or 588 the Contract is approved, this Contract shall remain in full force and effect. Seller shall promptly notify Buyer in 589 writing of the foregoing. If expiration or waiver of the right of first refusal or Contract approval has not occurred on or 590 9 9 9• p� 9 PP 591 before Right of First Refusal Deadline (§ 3), this Contract shall then terminate. 592 8.6. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be 594 reviewed carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership 595 and use of the Property, including, without limitation, boundary lines and encroachments, area, zoning, unrecorded 596 easements and claims of easements, leases and other unrecorded agreements, and various laws and 597 598 governmental regulations concerning land use, development and environmental matters. The surface estate may 599 be owned separately from the underlying mineral estate, and transfer of the surface estate does not 600 necessarily include transfer of the mineral rights or water rights. Third parties may-hold interests in oil, 601 as, other minerals geothermal energy or water on or under the Property, which interests may give 602 9 . 9 9Y p Y� Y 9 603 them rights to enter and use the Property. Such matters_ may be excluded from or not covered by the title 604 insurance policy. Buyer is advised to timely consult legal counsel with respect to all such matters as there are 605 strict time limits provided in this Contract e. Record Title Objection Deadline 3 and Off- Record Matters 606 P � 9�. 1 (§ ) 607 Objection Deadline (§ 3)]. 608 610 9. CURRENT SURVEY REVIEW. 611 9.1. Current Survey Conditions. If the box in § 9.1.1 or § 9.1.2 is checked, Buyer, the issuer of the Title 612 Commitment or the provider of the opinion of title if an abstract, and 613 614 shall receive a Current Survey, i.e., Improvement Location Certificate, Improvement Survey Plat or other form of 615 survey set forth in § 9.1.2 (collectively, Current Survey), on or before Current Survey Deadline (§ 3). The Current 616 Survey shall be certified by the surveyor to all those who are to receive the Current Survey. 617 618 ❑ 9.1.1. Improvement Location Certificate. If the box in this § 9.1.1 is checked, ❑Seller ❑Buyer 619 shall order or provide, and pay, on or before Closing, the cost of an Improvement Location Certificate. 620 ❑ 9.1.2. Other Survey. If the box in this 9.1.2 is checked, a Current Survey, than an 621 Y' § Y' 622 Improvement Location Certificate, shall be an ❑ Improvement Survey Plat ❑ . The `623 parties agree that payment of the cost of the Current Survey and obligation to order or provide the Current Survey 624 625 shall be as follows: 626 9.2. Survey Objection. Buyer shall have the right to review and object to the Current Survey. Buyer shall 627 have the Right to Terminate under § 25.1, on or before the Current Survey Objection Deadline (§ 3), if the 628 629 Current Survey is not timely received by Buyer or based on any unsatisfactory matter with the Current Survey, 630 notwithstanding § 8.2 or § 13. 631 632 633 DISCLOSURE, INSPECTION AND DUE DILIGENCE 634 635 636 10- PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY, DUE DILIGENCE, BUYER 637 DISCLOSURE AND SOURCE OF WATER. 639 10.1. Seller's Property Disclosure Deadline. On or before Seller's Property Disclosure Deadline (§ 640 3), Seller agrees to deliver to Buyer the most current version of the applicable Colorado Real Estate Commission's 641 Seller's Property Disclosure form completed by Seller to Seller's actual knowledge, current as of the date of this 642 Contract. 643 644 10.2. Inspection Objection Deadline. Unless otherwise provided in this Contract, Buyer acknowledges 645 that Seller is conveying the Property to Buyer in an "as is" condition, "where is" and "with all faults ". Seller shall 646 disclose to Buyer, in writing, any latent defects actually known by Seller. Buyer, acting in good faith, shall have 647 648 the right to have inspections (by one or more third parties, personally or both) of the Property and Inclusions 649 (Inspection), at Buyer's expense. If (1) the physical condition of the Property, including, but not limited to, the roof, 650 walls, structural integrity of the Property, the electrical, plumbing, HVAC and other mechanical systems of the 651 652 Property, (2) the physical condition of the Inclusions, (3) service to the Property (including utilities and 653 communication services), systems and components of the Property, e.g. heating and plumbing, (4) any proposed 654 or existing transportation project, road, street or highway, or (5) any other activity, odor or noise (whether on or off 655 656 the Property) and its effect or expected effect on the Property or its occupants is unsatisfactory, in Buyer's sole 657 subjective discretion, Buyer shall, on or before Inspection Objection Deadline (§ 3): 658 10.2.1. Notice to Terminate. Notify Seller in writing that this Contract is terminated; or 659 660 10.2.2. Inspection Objection. Deliver to Seller a written description of any unsatisfactory physical 661 condition that Buyer requires Seller to correct. 662 Buyer shall have the Right to Terminate under § 25.1, on or before Inspection Objection Deadline (§ 3), 663 664 based on any unsatisfactory physical condition of the Property or Inclusions, in Buyer's sole subjective discretion. 665 10.3. Inspection Resolution Deadline. If an Inspection Objection is received by Seller, on or before 666 Inspection Objection Deadline (§ 3),and if Buyer and Seller have not agreed in writing to a settlement thereof on 667 CBS3 -10 -1 1. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 8 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 7,36 737 738 739 740 741 742 743 744 745 746 747 748 749 750 or before Inspection. Resolution Deadline (§ 3), this Contract shall terminate on Inspection Resolution Deadline (§ 3), unless Seller receives Buyer's written withdrawal of the Inspection Objection before such termination, i.e., on or before expiration of Inspection Resolution Deadline (§ 3). 10.4. Damage, Liens and Indemnity.. Buyer, except as otherwise provided in this Contract or other written agreement between the parties, is responsible for payment for all inspections, tests, surveys, engineering reports, or any other work performed at.Buyer's request (Work) and shall pay for any damage that occurs to the Property and Inclusions as a result of such iWork. Buyer shall not permit claims or liens of any kind against the Property for Work performed on the Property at Buyer's request. Buyer agrees to indemnify, protect and hold Seller harmless from and against any liability, damage, cost or expense incurred by Seller and caused by any such Work, claim, or lien. This indemnity includes Seller's right to recover all costs and expenses incurred by Seller to defend against any. such liability, damage, cost or expense, or to enforce this section, including Seller's reasonable attorney fees, legal fees and expenses. The provisions of this section shall survive the termination of this Contract. 10.5. Insurability. Buyer shall have the right to review and object to the availability, terms and conditions of and premium for property insurance (Property Insurance). Buyer shall have the Right to Terminate under § 25.1, on or before Property Insurance Objection Deadline (§ 3), based on any unsatisfactory provision of the Property Insurance, in Buyer's sole subjective discretion. 10.6. Due Diligence Documents. Seller agrees to deliver copies of the following documents and information pertaining to the Property (Due Diligence Documents) to Buyer on or before Due Diligence Documents Delivery Deadline(§ 3) to the extent such Due Diligence. Documents exist and are in Seller's possession: l 10.6.1. All current leases, including any amendments or other occupancy agreements, pertaining to the Property (Leases). 10.6.2. Property tax bills for the last _years; 10.6.3. As -built construction plans to the Property and the tenant improvements, including architectural, electrical, mechanical, and structural systems; engineering reports; and permanent Certificates of Occupancy, to the extent now available; 10.6.4. A list of all Inclusions to be conveyed to Buyer; 10.6.5. Operating statements for the past _years; 10.6.6. A rent roll accurate and correct to the date of this Contract; 10.6.7. All current leases, including'any amendments or other occupancy agreements, pertaining to the Property (Leases); 10.6.8. A schedule of any tenant improvement work Seller is obligated to complete but has not yet completed and capital improvement work either scheduled or in process on the date of this Contract; 10.6.9. All insurance policies pertaining to the Property and copies of any claims which have been made for the past _years; 10.6.10. Soils reports, Surveys and engineering reports or data pertaining to the Property (if not delivered earlier under § 8.2); 10.6.11. Any and all existing documentation and reports regarding Phase I and II environmental reports, letters, test results, advisories, and similar documents respective to the existence or nonexistence of asbestos, PCB transformers, or other toxic hazardous or contaminated substances, and /or underground storage tanks and /or radon gas. If no reports are in Seller's possession or known to Seller; Seller shall warrant that no such reports are in Seller's possession or known to Seller; 10.6.12. Any Americans with Disabilities Act reports, studies or surveys concerning the compliance of the Property with said Act; 10.6.13. All permits, licenses and other building or use authorizations issued by any governmental authority with jurisdiction over the Property and written notice of any violations of any such permits, licenses or use authorizations, if any; and 10.6.14. Other Documents: 10.7. Due Diligence Documents Conditions. Buyer shall have the right to review and object to Due Diligence Documents,zoning and any use restrictions imposed by any governmental agency with jurisdiction over the Property (Zoning). in Buyer's sole subjective discretion, or Seller's failure to deliver to Buyer all Due Diligence Documents. Buyer shall also have the unilateral right to waive any condition herein. 10.7.1. Due Diligence Documents Objection. Buyer shall have the Right to Terminate under § 25.1, on or before Due Diligence Documents Objection Deadline (§ 3), based on any unsatisfactory matter with the Due Diligence Documents, in Buyer's sole subjective discretion. If, however, Due Diligence Documents are not timely delivered under § 10.6, or if Seller fails to deliver all Due Diligence Documents to Buyer, then Buyer shall have the Right to Terminate under § 25.1 on or before the earlier of ten days after Due Diligence Documents Objection Deadline (§ 3) or Closing. 10.7.2. Zoning. Buyer shall have the Right to Terminate under § 25.1, on or before Due Diligence Documents Objection Deadline (§ 3), based.on any unsatisfactory zoning, in Buyer's sole subjective discretion. CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 9 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 752 10.8. Due Diligence — Environmental, ADA. Buyer shall have the :right to obtain environmental 753 inspections of the Property including Phase I and Phase II Environmental Site Assessments, as applicable. 754 755 ❑Seller ❑Buyer shall order or provide ❑ Phase I Environmental Site Assessment ❑ Phase II 756 Environmental Site Assessment (compliant with ASTM E1527 -05 standard practices for Environmental Site 757 Assessments and /or ❑ at the expense of ❑Seller ❑Bu er Environmental Inspection). In 758 ) P Y ( P )• 759 addition, Buyer may also conduct an evaluation whether the Property complies with the Americans with 760 Disabilities Act (ADA Evaluation). All such inspections and evaluations shall be conducted at such times as are 761 mutual) agreeable to minimize the interruption of Seller's and an Seller's tenants' business uses of the Property, 762 Y 9 P Y P Y. 763 if any. 764 If Buyer's Phase I Environmental Site Assessment recommends a Phase 11 Environmental Site 765 Assessment, the Environmental Inspection Objection Deadline 3 shall be extended b Extended 766 p 1 (§ ) Y —days ( 767 Environmental Inspection Objection Deadline) and if such Extended Environmental Inspection Objection Deadline 768 extends beyond the Closing Date (§ 3), the Closing Date (§ 3) shall be extended a like period of time. 769 770 Buyer shall have the Right to Terminate under § 25.1, on or before Environmental Inspection Objection 771 Deadline (§ 3), or if applicable the Extended Environmental Inspection Objection Deadline, based on any 772 unsatisfactory results of Environmental Inspection, in Buyer's sole subjective discretion. Buyer shall have 773 the Right to Terminate under 25.1, on or before ADA Evaluation Objection Deadline 3 based on an 774 g § � (§ ). Y 775 unsatisfactory ADA Evaluation, in Buyer's sole subjective discretion. 776 10.9. Existing Leases; Modification of Existing Leases; New Leases. Seller states that none of 777 778 the Leases to be assigned to the Buyer at the time of Closing contain any rent concessions, rent reductions or 779 rent abatements except as disclosed in the Lease or other writing received by Buyer. Seller shall not amend alter, 780 modify, extend or cancel any of the Leases nor shall Seller enter into any new leases affecting the Property 782 without the prior written consent of Buyer, which consent shall not be unreasonably withheld or delayed. 783 785 11. TENANT ESTOPPEL STATEMENTS. 786 11.1. Tenant Estoppel Statements Conditions. Buyer shall have the right to review and object to any 787 Estoppel Statements. Seller shall obtain and deliver to Buyer on or before Tenant Estoppel Statements 788 Deadline (§ 3), statements in a form and substance reasonably acceptable to Buyer, from each occupant or 789 tenant at the Property (Estoppel Statement attached to a co of such occupant's or tenant's lease and an 790 P Y ( PP ) PY P Y 791 amendments (Lease) stating: 792 11.1.1. The commencement date of the Lease and scheduled termination date of the Lease; 793 11.1.2. That said Lease is in full force and effect and that there have been no subsequent uent q 795 modifications or amendments; 796 11.1.3. The amount of any advance rentals paid, rent concessions given, and deposits paid to 797 798 Seller; 799 11.1.4. The amount of monthly (or other applicable period) rental paid to Seller; Soo 11.1.5. That there is no default under the terms of said Lease by landlord or occupant; and 801 11.1.6. That the Lease to which the Estoppel is attached is a true, correct and complete co 802 PP P PY of 803 the Lease demising the premises it describes. 804 11.2. Tenant Estoppel Statements Objection. Buyer shall have the Right to Terminate under § 25.1, 805 on or before Tenant Estoppel Statements Objection Deadline 3 based on an unsatisfactory Estoppel 806 PP J (§ ). Y rY PP 807 Statement, in Buyer's sole subjective discretion or if Seller fails to deliver the Estoppel Statements on or before 808 Tenant Estoppel Statements Deadline (§ 3). Buyer shall also have the unilateral right to waive any 809 810 unsatisfactory Estoppel Statement. 811 812 CLOSING PROVISIONS 813 814 816 12. CLOSING DOCUMENTS, INSTRUCTIONS AND CLOSING. 817 12.1. Closing Documents and Closing Information. Seller and Buyer shall cooperate with the Closing 818 Company to enable the Closing Company to prepare and deliver documents required for Closing to Buyer and 819 Seller and their designees. If Buyer is obtaining a new loan to purchase the Property, Bu er acknowledges 820 9 Y 9 P Y 9 821 Buyer's lender shall be required to provide the Closing Company in a timely manner all required loan documents 822 and financial information concerning Buyer's new loan. Buyer and Seller will furnish any additional information and 823 824 documents required by Closing Company that will be necessary to complete this transaction. Buyer and Seller 825 shall sign and complete all customary or reasonably required documents at or before Closing. 826 12.2. Closing Instructions. Buyer and Seller agree to execute the Colorado Real Estate Commission's 827 828 Closing Instructions. Such Closing Instructions ❑Are ❑Are Not executed with this Contract. Upon mutual 829 execution, ❑Seller ❑Buyer shall deliver such Closing Instructions to the Closing Company. 830 12.3. Closing. Delivery of deed from Seller to Buyer shall be at closing (Closing). Closing shall be on the 831 832 date specified as the Closing Date (§ 3) or by mutual agreement at an earlier date. The hour and place of Closing 833. shall be as designated by 834 835 12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs, quality, and extent of CBS3 -10 -1 1. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 10 of 15 CTMeContracts.com - 02012 CTM Software Corp. 836 service vary between different settlement service providers (e.g., attorneys, lenders, inspectors and title 837 companies). 838 839 840 13. TRANSFER OF, TITLE. Subject to tender or.payment at Closing as required herein and compliance by 841 Buyer with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient 842 deed to Buyer, at Closing, conveying the Property free and clear of all taxes except 843 Y 9. Y 9 P Y P 844 the general, taxes for the year of Closing. Except as provided herein, title shall be conveyed free and clear of all 845 liens, including any governmental liens for special improvements installed as of the date of Buyer's signature 846 hereon, whether assessed or not. Title shall be conveyed subject to: 847 Y 1 848 13.1. Thosesspecific Exceptions described by reference to recorded documents as reflected in the 849 Title Documents accepted by Buyer in accordance with Record Title Matters (§ 8. 1), 850 851 13.2. Distribution utility easements (including cable TV), 852 13.3. Those specifically described rights of third parties not shown by the public records of which 853 Bu. er has actual knowled a and which were acce ted b Bu er in accordance with Off - Record Title Matters 854 Y g p Y y 855 (§ 8.2) and Current Survey Review (§ 9), 856 13.4. Inclusion of the Property within any special taxing district, and 857 858 13.5. Other 859 860 14. PAYMENT OF ENCUMBRANCES. An encumbrance required to be aid shall be aid at or before 861 Y q P P 862 Closing from the proceeds of this transaction or from any other source. 863 864 865 15. CLOSING COSTS, CLOSING FEE, ASSOCIATION FEES AND TAXES. 866 15.1. Closing Costs. Buyer and Seller shall pay, in Good Funds, their respective closing costs and 867 868 all other items required to be paid at Closing, except as otherwise provided herein. 869. 15.2. Closing Services Fee. The fee for real estate closing services shall be paid at Closing by 870 ❑ Buyer ❑ Seller ❑ One -Half by Buyer and One -Half by Seller 872 ❑ Other 873 15.3. Status Letter and Transfer Fees. Any fees incident to the issuance of Association's 874 875 statement of assessments (Status Letter) shall be paid by ❑Buyer ❑Seller ❑One -Half by Buyer and One - 876 Half by Seller. ❑None. Any transfer fees assessed by the Association including, but not limited to, any record 877 change fee, regardless of name or title of such fee (Association's Transfer Fee) shall be paid by ❑Buyer ❑ 878 879 Seller ❑ One -Half by Buyer and One -Half by Seller ❑None. 880 15.4. Local Transfer Tax. ❑ The Local Transfer Tax of % of the Purchase Price 882 shall be paid at Closing by ❑ Buyer ❑ Seller ❑ One -Half by Buyer and One -Half by Seller. ❑None. 883 15.5. Private Transfer Fee. Private transfer fees and other fees due to a transfer of the Property, 884 payable at Closing, such as community association fees, developer fees and foundation fees, shall be paid at 885 886 Closing by ❑Buyer ❑Seller ❑One -Half by Buyer and One -Half by Seller ❑None. 887 15.6. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction 888 889 shall be paid when due by El Buyer El Seller 1:1 One-Half by Buyer and One -Half by Seller El None. 890 892 16. PRORATIONS. The following shall be prorated to Closing Date (§ 3), except as otherwise provided: 893 16.1. Taxes. Personal property taxes, if any, special taxing district assessments, if any, and general 894 real estate taxes for the year of Closing, based on ❑ Taxes for the Calendar Year Immediately Preceding 895 Closing ❑ Most Recent Mill Lev and Most Recent Assessed Valuation, adjusted b an applicable 896 9 Y 1 Y Y PP 897 qualifying seniors property tax exemption, or ❑ Other 898 16.2. Rents. Rents based on ❑ Rents Actually Received LJAccrued. At Closing, Seller shall 899 goo transfer or credit to Buyer the security deposits for all Leases assigned, or any remainder after lawful deductions, 9'01 and notify all tenants in writing of such transfer and of the transferee's name and address. Seller shall assign to 902 Buyer all Leases in effect at Closing and Buyer shall assume Seller's obligations under such Leases. 903 904 16.3. Association Assessments. Current regular Association assessments and dues (Association 905 Assessments) paid in advance shall be credited to Seller at Closing. Cash reserves held out of the regular 906 Association Assessments for deferred maintenance by the Association shall not be credited to Seller except as 907 908 may be otherwise provided by the Governing Documents. Buyer acknowledges that Buyer may be obligated to pay 909 the Association, at Closing, an amount for reserves or working capital. Any special assessment assessed prior to 910 Closing Date (§ 3) by the Association shall be the obligation of ❑Buyer ❑Seller . Except however, any 911 912 special assessment by the Association for improvements that have been installed as of the date of Buyer's 913 signature hereon, whether assessed prior to or after Closing, shall be the obligation of Seller. Seller represents 914 915 that the Association Assessments are currently payable at $ per and that there are no 916 unpaid regular or special assessments against the Property except the current regular assessments and . Such 917 assessments are subject to change as provided in the Governing Documents. Seller agrees to promptly request 918 919 the Association to deliver to Buyer before Closing Date ( §3) a current Status Letter. CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 11 of 15 CTMeContracts.com - 02012 CTM Software Corp: 920 16.4. Other Prorations. Water and sewer charges, interest on continuing loan, and . 921 16.5. Final Settlement. Unless otherwise agreed in writing, these prorations shall be final. 922 923 924 17. POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date (§ 3) at 925 Possession Time (§ 3), subject to the following Leases or tenancies: 926 927 928 If Seller, after Closing, fails to deliver possession as specified, Seller shall be subject to eviction and shall be 929 additional) liable to Buyer for payment of $ per day or an art of a day notwithstanding 930 Y Y P Y P Y( Y P Y 9 931 § 18.1) from Possession Date and Possession Time (§ 3) until possession is delivered. 932 a 933 934 GENERAL PROVISIONS 935 936 937 18. DAY; COMPUTATION OF PERIOD OF DAYS, DEADLINE. 938 18.1. Day. As used in this Contract, the term "day" shall mean the entire day ending at 11:59 p.m., United 939 States Mountain Time (Standard or Daylight Savings as applicable). 940 941 18.2. Computation of Period of Days, Deadline. In computing a period of days, when the ending date 942 is not specified, the first day is excluded and the last day is included, e.g., three days after MEC. If any deadline 943 944 falls on a Saturday, Sunday or federal or Colorado state holiday (Holiday), such deadline El Shall 1:1 Shall Not 945 be extended to the next day that is not a Saturday, Sunday or Holiday. Should neither box be checked, the 946 deadline shall not be extended. 947 948 949 19. CAUSES OF LOSS, INSURANCE; CONDITION OF, DAMAGE TO PROPERTY AND INCLUSIONS AND 950 WALK- THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both shall be 951 delivered in the condition existing as of the date of this Contract, ordinary wear and tear excepted. 952 953 19.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other 954 perils or causes of loss prior to Closing in an amount of not more than ten percent of the total Purchase Price 955 956 (Property Damage), Seller shall be obligated to repair the same before Closing Date (§ 3). In the event such 957 damage is not repaired within said time or if the damage exceeds such sum, this Contract may be terminated at 958 the option of Buyer. Buyer shall have the Right to Terminate under § 25.1, on or before Closing Date (§ 3), based 959 960 on any Property Damage not repaired before Closing Date (§ 3). Should Buyer elect to carry out this Contract 961 despite such Property Damage, Buyer shall be entitled to a credit at Closing for all insurance proceeds that were 962 received by Seller (but not the Association, if any) resulting from such damage to the Property and Inclusions, plus 963 964 the amount of any deductible provided for in such insurance policy. Such credit shall not exceed the Purchase 965 Price. In the event Seller has not received such insurance proceeds prior to Closing, the parties may agree to 966 extend the Closing Date (§ 3) or, at the option of Buyer, Seller shall assign such proceeds at Closing, plus credit 967 968 Buyer the amount of any deductible provided for in such insurance policy, but not to exceed the total Purchase 969 Price. 970 19.2. Damage, Inclusions and Services. Should any Inclusion or service (including utilities and 971 communication services), systems and components of the Property, e. heatin or plumbing, or be damaged 972 ) Y P 9•, 9 P 9. 9 973 between the date of this Contract and Closing or possession, whichever shall be earlier, then Seller shall be liable 974 for the repair or replacement of such Inclusion, service, system, component or fixture of the Property with a unit of 975 976 similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of 977 such Inclusion, service, system, component or fixture is not the responsibility of the Association, if any, less any 978 insurance proceeds received by Buyer covering such repair or replacement. Seller and Buyer are aware of the 979 980 existence of pre -owned home warranty programs that may be purchased and may cover the repair or replacement 981 of such Inclusions. 982 19.3. Condemnation. In the event Seller receives actual notice prior to Closing that a pending 983 984 condemnation action may result in a taking of all or part of the Property or Inclusions, Seller shall promptly notify 985 Buyer, in writing, of such condemnation action. Buyer shall have the Right to Terminate under § 25.1, on or before 986 Closing Date (§ 3), based on such condemnation action in Buyer's sole subjective discretion. Should Buyer elect 987 988 to consummate this Contract despite such diminution of value to the Property and Inclusions, Buyer shall be 989 entitled to a credit at Closing for all condemnation proceeds awarded to Seller for the diminution in the value of the 990 Property or Inclusions but such credit shall not include relocation benefits, or expenses, or exceed the Purchase 991 992 Price. 993 19.4. Walk- Through and Verification of Condition. Buyer, upon reasonable notice, shall have the 994 right to walk through the Property prior to Closing to verify that the physical condition of the Property and 995 996 Inclusions complies with this Contract. 997 998 20. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Buyer and Seller 999 1000 acknowledge that the respective broker has advised that this document has important legal consequences and fool has recommended the examination of title and consultation with legal and tax or other counsel before signing this 1002 Contract. 1003 CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 12 of 15 CTMeContracts.com - 02012 CTM Software Corp. 1004 loos 21. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence hereof. If any note or check 1006 received as Earnest Money hereunder or any other payment due hereunder is not paid, honored or tendered when 1007 1008 due, or if -any obligation hereunder is not performed or waived as herein provided, there shall be the following ioo9 remedies: 1010 21.1. If Buyer is in Default: 1011 ❑ lore 21.1.1. Specific Performance. Seller may elect to.treat this Contract as canceled, in which 1013 case all Earnest Money (whether or not paid by Buyer) shall be paid to Seller and retained by Seller; and Seller 1014 may recover such damages as may be proper; or Seller may elect to treat this Contract as being in full force and 1015 1016 effect and Seller shall have the right to specific performance or damages, or both. 1017 21.1.2. Liquidated Damages, Applicable. This § 21.1.2 shall apply unless the box in § 21.1.1. 1018 is checked. All Earnest Money (whether or not paid by Buyer) shall be paid to Seller, and retained by Seller. Both 1019 parties shall thereafter be released from all obligations hereunder. It is agreed that the Earnest Money specified in iozo p g g y P 1021 § 4.1 is LIQUIDATED DAMAGES, and not a penalty, which amount the parties agree is fair and reasonable and 1022 (except as provided in §§ 10.4, 22, 23 and 24), said payment of Earnest Money shall be SELLER'S SOLE AND 1023 1024 ONLY REMEDY for Buyer's failure to perform the obligations. of this Contract. Seller expressly waives the . 1025 remedies of specific performance and additional damages. 1026 21.2. If Seller is in Default: Buyer may elect to treat this Contract as canceled, in which case all 1027 Earnest Money received hereunder shall be returned and Buyer may recover such damages as may be proper, or 1028 Y Y Y 9 Y P P 1029 Buyer may elect to treat this Contract as being in full force and effect and Buyer shall have the right to specific 1030 performance or damages, or both. 1031 1032 1033 22. LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of 1034 any arbitration or litigation relating to this Contract, prior to or after Closing Date (§ 3), the arbitrator or court shall 1035 1036 award to the prevailing party all reasonable costs and expenses, including attorney fees, legal fees and expenses. 1037 1038 23. MEDIATION. If a dispute arises relating to this Contract, prior to or after Closing, and is not resolved, the 1039 parties shall first proceed in ood faith to submit the matter to mediation. Mediation is a process in which the 1040 P p g p 1041 parties meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators 1042 cannot impose binding decisions. The parties to the dispute must agree, in writing, before any settlement is 1043 1094 binding. The parties will jointly appoint an acceptable mediator and will share equally in the cost of such 1045 mediation. The mediation, unless otherwise agreed, shall terminate in the event the entire dispute is not resolved 1046 within thirty days of the date written notice requesting mediation is delivered by one party to the other at the 1047 last known address. This section shall not alter an date in this Contract, unless otherwise agreed. 1048 party's Y 9 1049 1050 24. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder shall release 1052 the Earnest Money as directed by written mutual instructions, signed by both Buyer and Seller. In the event of any 1053 controversy regarding the Earnest Money (notwithstanding any termination of this Contract), Earnest Money 1054 Holder shall not be required to take any action. Earnest Money Holder, at its option and sole subjective discretion, 1056 may 1 await an proceeding, 2 inter lead.all parties and deposit Earnest Money into a court of competent 1056 Y() YP 9,()� P P P Y� P 1057 jurisdiction and shall recover court costs and reasonable attorney and legal fees, or (3) provide notice to Buyer and 1058 Seller that unless Earnest Money Holder receives a copy of the Summons and Complaint or Claim (between Buyer 1059 and Seller containing the case number of the lawsuit Lawsuit within one hundred twenty days of Earnest Money 1060 ) 9 (Lawsuit) y Y Y 1061 Holder's notice to the parties, Earnest Money Holder shall be authorized to return the Earnest Money to Buyer. In 1062 the event Earnest Money Holder does receive a copy of the Lawsuit, and has not interpled the monies at the time 1063 of an Order, Earnest Money Holder shall disburse the Earnest Money pursuant to the Order of the Court. The 1064 Y y Y P 1065 parties reaffirm the obligation of Mediation (§ 23). The provisions of this § 24 apply only if the Earnest Money 1066 Holder is one of the Brokerage Firms named in § 33 or § 34. 1067 1068 1069 25. TERMINATION. > 1070 25.1. Right to Terminate. If a party has a right to terminate, as provided in this Contract (Right to 1071 Terminate the termination shall be effective u on the other party's recei t of a written notice to terminate Notice 1072 )� P P ( 1073 to Terminate), provided such written notice was received on or before the applicable deadline specified in this 1074 Contract. If the Notice to Terminate is not received on or before the specified deadline, the party with the Right to 1075 1076 Terminate shall have accepted the specified matter, document or condition as satisfactory and waived the Right to 1077 Terminate under such provision. 1078 25.2. Effect of Termination. In the event this Contract is terminated, all Earnest Money received 1079 1080 hereunder shall be returned and the parties shall be relieved of all obligations hereunder, subject to §§ 10.4, 22, 23 1081 and 24. 1082 1083 1084 26. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL. This Contract, its exhibits and specified addenda, . 1085 constitute the entire agreement between the parties relating to the subject hereof, and any prior agreements CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 13 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 1086 pertaining thereto, whether oral or written, have been merged and integrated into this Contract. No subsequent 1087 modification of an of the terms of this Contract shall be valid, binding upon the parties, or enforceable unless 1088 Y g P P lo89 made in writing and signed by the parties. Any obligation in this Contract that, by its terms, is intended to be 1090 performed after termination or Closing shall survive the same. 1091 1092 1093 27. NOTICE, DELIVERY, AND CHOICE OF LAW. 1094 27.1. Physical Delivery. All notices must be in writing, except as provided in § 27.2. Any document, 1095 g a Buyer shall be effective when including signed document or notice, from or on behalf of Seller, and delivered to Bu 1096 g Y 1097 physically received by Buyer, any signatory on behalf of Buyer, any named individual of Buyer, any representative 1095 of Buyer, or Brokerage Firm of Broker working with Buyer (except for delivery, after Closing, of the notice 1099 1100 requesting mediation described in § 23) and except as provided in § 27.2 . Any document, including a signed 1101 document or notice, from or on behalf of Buyer, and delivered to Seller shall be effective when physically received 1102 by Seller, any signatory on behalf of Seller, any named individual of Seller, any representative of Seller, or 1103 Brokerage Firm of Broker working with Seller (except for delivery, after Closing, the notice requesting mediation 1104 9 9 ( P ry, 9, q 9 1105 described in § 23) and except as provided in § 27.2. . 1106 27.2. Electronic Delivery. As an alternative to physical delivery, any document, including any signed 1107 document or written notice ma be delivered in electronic form only b the following indicated methods: 1108 Y Y Y 9 1109 ❑ Facsimile ❑ E -mail ❑ Internet ❑ No Electronic Delivery. If the box "No Electronic Delivery" is 1110 checked, this § 27.2 shall not be applicable and § 27.1 shall govern notice and delivery. Documents with original 1111 1112 signatures shall be provided upon request of any party. 1113 27.3. Choice of Law. This Contract and all disputes arising hereunder shall be governed by and construed 1114 in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a 1115 contract in Colorado for property located in Colorado. 1116 P P Y 1117 111s 28 NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal shall expire unless accepted in writing, by 1120 Buyer and Seller, as evidenced by their signatures below, and the offering party receives notice of such 1121 acceptance pursuant to'§ 27 on or before Acceptance Deadline Date (§ 3) and Acceptance Deadline Time (§ 1122 3). If accepted, this document shall become a contract between Seller and Buyer. A copy of this document may 1123 1124 be executed b each P art Y. separately, and when each party has executed a copy thereof, such copies taken 1125 together shall be deemed to be a full and complete contract between the parties. 1126 1127 29. GOOD FAITH. Buyer and Seller acknowledge that each art has an obligation to act in good faith, including 1125 Y 9 party 9 9 9 1129 but not limited to exercising the rights and obligations set forth in the provisions of Financing Conditions and 1130 Obligations (§ 5), Record Title and Off - Record Title Matters (§ 8), Current Survey Review (§ 9) and 1131 1132 Property Disclosure, Inspection, Indemnity, Insurability and Due Diligence (§ 10). 1133 1134 1195 ADDITIONAL PROVISIONS AND ATTACHMENTS 1136 1137 30. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado 1138 1139 Real Estate Commission.) 1140 31. ATTACHMENTS. The following are a part of this Contract: 1141 1142 1143 Note: The following disclosure forms are attached but are not a part of this Contract: 1144 1145 1146 SIGNATURES 1147 1148 1149 Buyer: Date: 1150 1151 Address: 1152 Addr , 1153 Phone: Fax: 1154 Electronic Address: 1155 1156 1157 1158 1159 [NOTE: If this offer is being countered or rejected, do not sign this document. Refer to § 31] 1160 1161 1162 Seller: Date: 1163 1164 1165 Address: 1166 Phone: Fax: 1167 116$ Electronic Address: 1169 CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 14 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 1170 1171 32.• COUNTER; REJECTION. This offer is ❑ Countered ❑ Rejected. 1172 Initials only of party (Buyer or Seller) who countered or rejected offer 1173 1174 END OF CONTRACT TO BUY AND SELL REAL ESTATE 1175 1176 1177 1178 1179 33. BROKER'S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE. 1180 (To be completed by Broker working with Buyer) 1181 1182 1183 Broker ❑ Does ❑ Does Not acknowledge receipt of Earnest Money deposit and, while not a party to the 1184 Contract, agrees to cooperate upon request with any mediation concluded under § 23. Broker agrees that if 1 186 Brokerage Firm is the Earnest Money Holder and, except as provided in ,§ 24, if the Earnest Money has not 1187 already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest 1188 Money Holder shall release the Earnest Money as directed by the written mutual instructions. Such release of 1190 Earnest Money shall be made within five days of Earnest Money Holder's receipt of the executed written mutual 1191 instructions, provided the Earnest Money check has cleared. Broker agrees that if Earnest Money Holder is other 1192 than the Brokerage Firm identified in § 33 or § 34, Closing Instructions signed by Buyer, Seller, and Earnest 1194 Money Holder must be obtained on or before delivery of Earnest Money to Earnest Money Holder. 1195 1196 1197 Broker is working with Buyer as a El Buyer's Agent ❑ Seller's Agent 13 Transaction -Broker in this 1198 transaction. ❑ This is a Change of Status. 1199 1200 1201 Brokerage Firm's compensation or commission is to be paid by ❑ Listing Brokerage Firm 1202 ❑ Buyer ❑ Other Brokerage Firm's Name: BJ *ADAMS AND COMPANY Date: 411812012 Broker's Name: Andrew Ernemann Address: 534 E. Hopkins Avenue Aspen, CO 81611 Ph: 970 - 922 -2111 Fax: 970 - 920 -2927 Email: andrew@bjac.net 34. BROKER'S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE. (To be completed by Broker working with Seller) Broker ❑ Does ❑ Does Not acknowledge receipt of Earnest Money deposit specified in § 4.1 and, while not a party to the Contract, agrees to cooperate upon request with any mediation concluded under § 23. Broker agrees that if Brokerage Firm is the Earnest Money Holder and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest Money Holder shall release the Earnest Money as directed by the written mutual instructions. Such release of Earnest Money shall be made within five days of Earnest Money Holder's receipt of the executed written mutual instructions, provided the Earnest Money check has cleared. Broker agrees that if Earnest Money Holder is other than the Brokerage Firm identified in § 32 or § 33, Closing Instructions signed by Buyer, Seller, and Earnest Money Holder must be obtained on or before delivery of Earnest Money to Earnest Money Holder. Broker is working with the Seller as a ❑ Seller's Agent ❑ Buyer's Agent ❑ Transaction- Broker in this transaction. ❑ This is a Change of Status. Brokerage Firm's compensation or commission is to be paid by ❑ Seller ❑ Buyer ❑ Other Brokerage Firm's Name: Broker Address: , Ph: Fax: 4mail: Date: CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE (COMMERCIAL) CTM eContracts - @2011 CTM Software Corp. CBS3- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Commercial Page 15 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 1 2 3 BJ *ADAMS AND COMPANY 4 "� .. 534 E. Hopkins Avenue Aspen, CO 81611 5 "" Andrew Ernemann 6 7 Ph: 970 - 922 -2111 Fax: 970 - 920 -2927 8 he printed portions of this form, except differentiated additions, have been approved by the Colorado 9 Real Estate Commission. (LC50 -8 -10) (Mandatory 1 -11) 10 11 12 THIS IS A BINDING CONTRACT. THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE 14 PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER COUNSEL BEFORE SIGNING. 15 16 Compensation charged by real estate brokerage firms is not set by law. Such charges are established 17 b each real estate brokerage firm. 1s Y 9 19 20 DIFFERENT BROKERAGE RELATIONSHIPS ARE AVAILABLE WHICH INCLUDE BUYER AGENCY, 22 SELLER AGENCY OR TRANSACTION- BROKERAGE. 23 24 25 EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT 26 27 28 ® SELLER AGENCY ❑ TRANSACTION - BROKERAGE 29 30 31 Date: 4/18/2012 32 33 34 1. AGREEMENT. Seller and Brokerage Firm enter into this exclusive, irrevocable contract (Seller Listing 35 Contract) as of the date set forth above. 36 37 39 2. BROKER AND BROKERAGE FIRM. 40 . ® 2.1. Multiple- Person Firm. If this box is checked, the individual designated by Brokerage Firm to serve as 41 the broker of Seller and to perform the services for Seller required by this Seller Listing Contract is called Broker. If 42 43 more than one individual is so designated, then references in this Seller Listing Contract to Broker shall include all 44 persons so designated, including substitute or additional brokers. The brokerage relationship exists only with 45 Broker and does not extend to the employing broker, Brokerage Firm or to any other brokers employed or engaged 46 47 by Brokerage Firm who are not so designated. 48 49 50 ❑ 2.2• One - Person Firm. If this box is checked, Broker is a real estate brokerage firm with only one licensed 51 natural person. References in this Seller Listing Contract to Broker or Brokerage Firm mean both the licensed 52 natural person and brokerage firm who shall serve as the broker of Seller and perform the services for Seller 53 54 required by this Seller Listing Contract. 55 56 57 3. DEFINED TERMS. 58 59 3.1. Seller: 60 61 62 3.2. Brokerage Firm: BJ"ADAMS AND COMPANY 63 64 65 3.3. Broker: Andrew Ernemann 66 . 67 68 3.4. Property. The Property is the following legally described real estate in the County of ,Colorado: 69 70 71 known as No. CO . 72 together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, 73 74 and all interest of Seller in vacated streets and alleys adjacent thereto, except as herein excluded. 75 3.5. Sale. 76 3.5.1. A Sale is the voluntary transfer or exchange of any interest in the Property or the voluntary creation 77 78 of the obligation to convey any interest in the Property, including a contract or lease. It also includes an agreement 79 to transfer any ownership interest in an entity which owns the Property. 80 ❑ 3.5.2. If this box is checked, Seller authorizes Broker to negotiate leasing the Property. Lease of the 81 82 Property or Lease means any lease of an interest in the Property. 83 3.6. Listing Period. The Listing Period of this Seller Listing Contract shall begin on 84 LC50 -8 -10. EXCLUSIVE RIGHT =TO -SELL LISTING CONTRACT Page] of 8 CTMeContracts.com - 02012 CTM Software Corp. 85 and shall continue through the earlier of (1) completion of the Sale of the Property or (2) 86 Broker shall continue to assist in the completion of any sale or lease for which compensation is payable to 8gBrokerage Firm under § 7 of this Seller Listing Contract. 89 90 3.7. Applicability of Terms. A check or similar mark in a box means that such provision is applicable. The 91 abbreviation "N /A" or the word "Deleted" means not applicable. The abbreviation "MEC" (mutual execution of this 92 contract) means the date upon which both parties have signed this Seller Listing Contract. 93 Y� P 3.8. Da Computation of Period of Da s Deadline. 94 Y 95 3.8.1. Day. As used in this Seller Listing Contract, the term "day' shall mean the entire day ending at 96 11:59 p.m., United States Mountain Time (Standard or Daylight Savings as applicable). 97 98 3.8.2. Computation of Period of Days, Deadline. In computing.a period of days, when the ending date 99 is not specified, the first day is excluded and the last day is included, e.g., three days after MEC. If any deadline 100 falls on a Saturday, Sunday or federal or Colorado state holiday (Holiday), such deadline ❑ Shall ❑ Shall Not 102 be extended to the next day not a Saturday, Sunday or Holiday. Should neither box be checked, the deadline 103 shall not be extended. 104 106 4. BROKERAGE RELATIONSHIP. 107 4.1. If the Seller Agency box at the top of page 1 is checked, Broker shall represent Seller as a Seller's 108 limited agent (Seller's Agent). If the Transaction - Brokerage box at the top of page 1 is checked, Broker shall act 109 110 as a Transaction - Broker. 111 4.2. In- Company Transaction — Different Brokers. When Seller and buyer in a transaction are working 112 with different brokers, those brokers continue to conduct themselves consistent with the brokerage relationships 114 they have established. Seller acknowledges that Brokerage Firm is allowed to offer and pay compensation to 115 brokers within Brokerage Firm working with a buyer. 116 4.3. In- Company Transaction — One Broker. If Seller and buyer are both working with the same broker, 117 118 Broker shall function as: 119 4.3.1. Seller's Agent. If the Seller Agency box at the top of page 1 is checked, the parties agree the 120 following applies: 121 4.3.1.1. Seller Agency Only. Unless the box in 4.3.1.2 Seller Agency Unless Brokerage 122 9 Y Y• § � 9 Y 9 123 Relationship with Both) is checked, Broker shall represent Seller as Seller's Agent and shall treat the buyer as 124 a customer. A customer is a party to a transaction with whom Broker has no brokerage relationship. Broker shall 125 126 disclose to such customer Broker's relationship with Seller. 127 ❑ 4.3.1.2. Seller Agency Unless Brokerage Relationship with Both. If this box is checked, 128 Broker shall represent Seller as Seller's Agent and shall treat the buyer as a customer, unless Broker currently 129 130 has or enters into an agency or Transaction - Brokerage relationship with the buyer, in which case Broker shall act 131 as a Transaction - Broker. 132 4.3.2. Transaction - Broker. If the Transaction - Brokerage box at the top of page 1 is checked, or in the 133 134 event neither box is checked, Broker shall work with Seller as a Transaction- Broker. A Transaction- Broker shall 135 perform the duties described in § 5 and facilitate sales transactions without being an advocate or agent for either 136 party. If Seller and buyer are working with the same broker, Broker shall continue to function as a Transaction - 137 138 Broker. 139 140 5. BROKERAGE DUTIES. Brokerage Firm, acting through Broker, as either a Transaction- Broker or a Seller's 141 142 Agent, shall perform the following Uniform Duties when working with Seller: 143 5.1. Broker shall exercise reasonable skill and care for Seller, including, but not limited to the following: 144 5.1.1. Performing the terms of any written or oral agreement with Seller; 145 146 5.1.2. Presenting all offers to and from Seller in a timely manner regardless of whether the Property is 147 subject to a contract for Sale; 148 5.1.3. Disclosing to Seller adverse material facts actually known by Broker; 149 150 5.1.4. Advising Seller regarding the transaction and advising Seller to obtain expert advice as to 151 material matters about which Broker knows but the specifics of which are beyond the expertise of Broker; 152 5.1.5. Accounting in a timely manner for all money and property received; and 153 154 5.1.6. Keeping Seller fully informed regarding the transaction. 155 5.2. Broker shall not disclose the following information without the informed consent of Seller: 156 5.2.1. That Seller is willing to accept less than the asking price for the Property; 157 158 5.2.2. What the motivating factors are for Seller to sell the Property; 159 5.2.3. That Seller will agree to financing terms other than those offered; . 160 5.2.4. Any material information about Seller unless disclosure is required by law or failure to disclose 161 162 such information would constitute fraud or dishonest dealing; or 163 5.2.5. Any facts or suspicions regarding circumstances that could psychologically impact or stigmatize 164 the Property. 165 166 5.3. Seller consents to Broker's disclosure of Seller's confidential information to the supervising broker or 167 desiqnee for the purpose of proper supervision, provided such supervisinq broker or desiqnee shall not further LC50 -8 -10. EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT I Page 2 of 8 CTMeContracts.com - ©2012 CTM Software Corp. 168 disclose such information without consent of Seller, or use such information to the detriment'of Seller. 169 170 5.4. Brokerage Firm may have agreements with other sellers to market and sell their property. Broker may 171 show alternative properties not owned by Seller to other prospective buyers and list competing properties for sale. 172 5.5. Broker shall not be obligated to seek additional offers to purchase the Property while the Property is 173 174 subject to a contract for Sale. 175 5.6. Broker has no duty to conduct an independent inspection of the Property for the benefit of a buyer and 176 has no duty to independently verify the accuracy or completeness of statements made by Seller or independent 177 178 inspectors. Broker has no duty to conduct an independent investigation of a buyer's financial condition or to verify 179 the accuracy or completeness of any statement made by a buyer. 180 5.7. Seller understands that Seller shall not be liable for Broker's acts or omissions that have not been 181 182 approved, directed, or ratified by Seller. 183 5.8. When asked, Broker ❑ Shall ❑ Shall Not disclose to prospective buyers and cooperating brokers 184 the existence of offers on the Property and whether the offers were obtained by Broker, a broker within Brokerage 185 186 Firm or by another broker. 1.87 188 189 6. ADDITIONAL DUTIES OF SELLER'S AGENT: If the Seller Agency box at the top of page 1 is checked, 190 Broker is Seller's Agent, with the following additional duties: , 191 6.1. Promoting the interests of Seller with the utmost good faith, loyalty and fidelity; 192 6.2. Seeking a price and terms that are set forth in this Seller Listing Contract; and 193 194 6.3. Counseling Seller as to any material benefits or risks of a transaction that are actually known by 195 Broker. 196 197 198 7. COMPENSATION TO BROKERAGE FIRM; COMPENSATION TO COOPERATIVE BROKER. Seller agrees 199 that any Brokerage Firm compensation that is conditioned upon the Sale of the Property shall be earned by 201 201 Brokerage Firm as set forth herein without any discount or allowance for any efforts made by Seller or by any other 202 person in connection with the Sale of the Property. 203 7.1. Amount. In consideration of the services to be performed by Broker, Seller agrees to pay Brokerage 204 205 Firm as follows: 206 7.1.1. Sale Commission. (1) % of the gross purchase price or (2) in U.S. dollars. 207 7.1.2. Lease Commission. If the box in § 3.5.2 is checked, Brokerage Firm shall be paid.a fee equal to 209 (1) % of the gross rent under the lease, or (2) , in U.S. dollars, payable as follows: 210 211 7.2. When Earned. Such commission shall be earned upon the occurrence of any of the following: 212 213 7.2.1. Any Sale of the Property within the Listing Period by Seller, by Broker or by any other person; 214 7.2.2. Broker finding a buyer who is ready, willing and able to complete the sale or lease as specified in 215 this Seller Listing Contract; or 216 217 7.2.3. Any Sale (or Lease if § 3.5.2 is checked) of the Property within calendar days 218 subsequent to the expiration of the Listing Period (Holdover Period) (1) to anyone with whom Broker negotiated 219 and (2) whose name was submitted, in writing, to Seller by Broker during the Listing Period including any 220 221 extensions thereof, (Submitted Prospect). Provided, however, Seller ❑ Shall ❑ Shall Not owe the commission 222 to Brokerage Firm under this § 7.2.3 if a commission is earned by another licensed real estate brokerage firm 223 actin pursuant to an exclusive agreement entered into during 224 9 P 9 9 the Holdover Period and a Sale or Lease to a 225 Submitted Prospect is consummated. If no box is checked above in this § 7.2.3, then Seller shall not owe the 226 commission to Brokerage Firm. 228 7.3. When Applicable and Payable. The commission obligation shall apply to a Sale made during the 229 Listing Period or any extension of such original or extended term. The commission described in § 7.1.1 shall be 231 payable at the time of the closing of the Sale, or, if there is no closing (due to the refusal or neglect of Seller) then 231 232 on the contracted date of closing, as contemplated by § 7.2.1 or § 7.2.3, or upon fulfillment of § 7.2.2 where the 233 offer made by such buyer is not accepted by Seller. 234 7,4 Other Compensation. 235 236 7.5. Cooperative Broker Compensation. Broker shall seek assistance from, and Brokerage Firm offers 237 compensation to, outside brokerage firms, whose brokers are acting as: 238 ❑ Buyer Agents: % of the gross sales" rice or in U.S. dollars. 239 Y 9 9 P 240 ❑ Transaction - Brokers: % of the gross sales price or in U.S. dollars. 241 242 243 8. LIMITATION ON THIRD -PARTY COMPENSATION. Neither Broker nor the Brokerage Firm, except as set 244 forth in § 7, shall accept compensation from any other person or entity in connection with the Property without the 245 Written consent of Seller. Additionally, neither Broker nor Brokerage Firm shall assess or receive mark -ups or other 246 247 compensation for services performed by any third party or affiliated business entity unless Seller signs a separate 248 written consent. 249 250 251 9. OTHER BROKERS' ASSISTANCE, MULTIPLE LISTING SERVICES AND MARKETING. Seller has been . LC50 -8 -10. EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT Page 3 of 8 CTMeContracts.com - 02012 CTM Sofhvare Corp. 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 advised by Broker of the advantages and disadvantages of various marketing methods, including advertising and the use of multiple listing services (MLS) and various methods of making the Property accessible by other brokerage firms (e.g., using lock boxes, by- appointment -only showings, etc.), and whether some methods may limit the ability of another broker to show the Property. After having been so advised, Seller has chosen the following (check all that apply): 9.1. MLS /Information Exchange. 9.1.1. The Property ❑ Shall ❑ Shall Not be submitted to one or more MLS and ❑ Shall ❑ Shall Not be submitted to one or more property information exchanges. If submitted, Seller authorizes Broker to provide timely notice of any status change to such MLS and information exchanges. Upon transfer of deed from Seller to buyer, Seller authorizes Broker to provide sales information to such MLS and information exchanges. 9.1.2. Seller authorizes the use of electronic and all other marketing methods except: 9.1.3. Seller further authorizes use of the data by MLS and property information exchanges, if any 9.1.4. The Property Address ❑ Shall ❑ Shall Not be displayed on the Internet. 9.1.5. The Property Listing 1:1 Shall El Shall Not be displayed on the Internet. 9.2. Property Access. Access to the Property may be by: ❑ Lock Box EJ Other instructions: 9.3. Brokerage Marketing.The following specific marketing tasks shall be performed by Broker: 9.4. Brokerage Services. The Broker shall provide brokerage services to Seller. 10. SELLER'S OBLIGATIONS TO BROKER; DISCLOSURES AND CONSENT. 10.1. Negotiations and Communication. Seller agrees to conduct all negotiations for the Sale of the Property only through Broker, and to refer to Broker all communications received in any form from real estate brokers, prospective buyers, tenants or any other source during the Listing Period of this Seller Listing Contract. 10.2. Advertising. Seller agrees that any advertising of the Property by Seller (e.g., Internet, print and signage) shall first be approved by Broker. 10.3. No Existing Listing Agreement. Seller represents that Seller ❑ Is ❑ Is Not currently a party to any listing agreement with any other broker to sell the Property. 10.4. Ownership of Materials and Consent. Seller represents that all materials (including all photographs, renderings, images or other creative items) supplied to Broker by or on behalf of Seller are owned by Seller, except as Seller has disclosed in writing to Broker. Seller is authorized to and grants to Broker, Brokerage Firm and any MLS (that Broker submits the Property to) a nonexclusive irrevocable, royalty -free license to use such material for marketing of the Property, reporting as required and the publishing, display and reproduction of such material, compilation and data. This license shall survive the termination of this Seller Listing Contract. 10.5. Colorado Foreclosure Protection Act. The Colorado Foreclosure Protection Act (Act) generally applies if (1) the Property is residential (2) Seller resides in the Property as Seller's principal residence (3) Buyer's purpose in purchase of the Property is not to use the Property as Buyer's personal residence and (4) the Property is in foreclosure or Buyer has notice that any loan secured by the Property is at least thirty days delinquent or in default. If all requirements 1, 2, 3 and 4 are met and the Act otherwise applies, then a contract, between Buyer and Seller for the sale of the Property, that complies with the provisions of the Act is required. If the transaction is a Short Sale transaction and a Short Sale Addendum is part of the Contract between Seller and Buyer, the Act does not apply. It is recommended that Seller consult with an attorney. 11. PRICE AND TERMS. The following Price and Terms are acceptable to Seller: 11.1 Price. U.S. $ 11.2. Terms. ❑ Cash ❑ Conventional ❑ FHA ❑ VA ❑ Other: 11.3. Loan Discount Points. 11.4. Buyer's Closing Costs (FHA/VA). Seller shall pay closing costs and fees, not to exceed that Buyer is not allowed by law to pay, for tax service and . 11.5. Earnest Money. Minimum amount of earnest money deposit U.S. $ in the form of 11.6. Seller Proceeds. Seller will receive net proceeds of closing as indicated: ❑ Cashier's Check at Seller's expense; ❑ Funds Electronically Transferred (Wire Transfer) to .an account specified by Seller, at Seller's expense; or ❑ Closing Company's Trust Account Check 11.7. Advisory: Tax Withholding. The Internal Revenue Service and the Colorado Department of Revenue may require closing company to withhold a substantial portion of the proceeds of this Sale when Seller either (1) is LC50 -8 -10. EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT Page 4 of 8 CTMeContracts.com - ©2012 CTM Software Corp. 334 335 336 337 338 339 340 .341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 a foreign person or (2) will not be a Colorado resident after closing. Seller should inquire of Seller's tax advisor to determine if withholding applies or if an exemption exists. 12. DEPOSITS. Brokerage Firm is authorized to accept earnest money deposits received by Broker pursuant to a proposed Sale contract. Brokerage Firm is authorized to deliver the earnest money deposit to the closing agent, if any, at or before the closing of the Sale contract. 13. INCLUSIONS AND EXCLUSIONS. 13.1. Inclusions. The Purchase Price includes the following items (Inclusions): 13.1.1. Fixtures. If attached to the Property on the date of this Seller Listing Contract, lighting, heating, plumbing, ventilating, and air conditioning fixtures, TV antennas, inside telephone, network and coaxial (cable) wiring and connecting blocks /jacks, plants, mirrors, floor coverings, intercom systems, built -in kitchen appliances, sprinkler systems and controls, built -in vacuum systems (including accessories), garage door openers including remote controls; and 13.1.2. Personal Property. If on the Property whether attached or not on the date of this Seller Listing Contract: storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings, curtain rods, drapery rods, fireplace inserts, fireplace screens, fireplace grates, heating stoves, storage sheds, and all keys. If checked, the following are included: ❑ Water Softeners ❑ Smoke /Fire Detectors ❑ Security Systems ❑ Satellite Systems .(including satellite dishes); and The Personal Property to be conveyed at closing shall be conveyed by Seller free and clear of all taxes (except personal property taxes for the year of closing), liens and encumbrances, except . Conveyance shall be by bill of sale or other applicable legal instrument. 13.1.3. Trade Fixtures.. The following trade fixtures: . The Trade Fixtures to be conveyed at closing shall be conveyed by Seller, free and clear of all taxes (except personal property taxes for the year of closing), liens and encumbrances, except . Conveyance shall be by bill of sale or other applicable legal instrument. 13.1.4. Parking and Storage Facilities. ❑ Use Only ❑ Ownership of the following parking facilities: and ❑ Use Only ❑ Ownership of the following storage facilities: 13.1.5. Water Rights. The following legally described water rights: Any water rights shall be conveyed by instrument. The Well Permit # is 13.1.6. Growing Crops. The following growing crops:. 13.2. Exclusions. The following are excluded (Exclusions): deed or other applicable legal 14. TITLE AND ENCUMBRANCES. Seller represents to Broker that title to the Property is solely in Seller's name. Seller. shall deliver to Broker true copies of all relevant title materials, leases, improvement location certificates and surveys in Seller's possession and shall disclose to Broker all easements, liens and other encumbrances, if any, on the Property, of which Seller has knowledge. Seller authorizes the holder of any obligation secured by an encumbrance on the Property to disclose to Broker the amount owing on said encumbrance and the terms thereof. In case of Sale, Seller agrees to convey, by a deed, only that title Seller has in the Property. Property shall be conveyed free and clear of all taxes, except the general taxes for the year of closing. All monetary encumbrances (such as mortgages, deeds of trust, liens, financing statements) shall be paid by Seller and released except as Seller and buyer may otherwise agree. Existing monetary encumbrances are as follows: . The Property is subject to the following leases and tenancies: . If the Property has been or will be subject to any governmental liens for special improvements installed at the time of signing a Sale contract, Seller shall be responsible for payment of same, unless otherwise agreed. Brokerage Firm may terminate this Seller Listing Contract upon written notice to Seller that title is not satisfactory to Brokerage Firm. 15. EVIDENCE OF TITLE. Seller agrees td-furnish buyer, at Seller's expense, a current commitment and an owner's title insurance policy in an amount equal to the Purchase Price in the form specified in the Sale contract, or if this box is checked, ❑ An Abstract of Title certified to a current date. 16. ASSOCIATION ASSESSMENTS. Seller represents that the amount of the regular owners' association LC50 -8 -10. EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT Page 5 of 8 CTMeContracts.com - OO 20 ] 2 CTM Software Corp. 416 assessment is currently payable at per and that there are no unpaid 417 418 regular or special assessments against the Property except the current regular assessments and except 419 Seller 420 agrees to promptly request the owners' association to deliver to buyer before date of closing a current statement of 421 assessments against the Property. 422 9 P Y• 423 424 17. POSSESSION. Possession of the Property shall be delivered to buyer as follows: , subject to leases and 425 d i ib d i enances as described 426 t § 14. 427 429 18. MATERIAL DEFECTS, DISCLOSURES AND INSPECTION. 430 18.1. Broker's Obligations. Colorado law requires a broker to disclose to any prospective buyer all adverse 431 material facts actually known by such broker including but not limited to adverse material facts pertaining to the 432 title to the Property and the physical condition of the Property, any material defects in the Property, and any 433 environmental hazards affecting the Property which are required b law to be disclosed. These types of 434 9 P Y q Y YP 435 disclosures may include such matters as structural defects, soil conditions, violations of health, zoning or building 436 laws, and nonconforming uses and zoning variances. Seller agrees that any buyer may have the Property and 437 Inclusions inspected and authorizes Broker to disclose an facts actual) known b Broker about the Property. 43$ P Y Y Y P Y• 439 18.2. Seller's Obligations. 440 18.2.1. Seller's Property Disclosure Form. A seller is not required by law to provide a written 441 442 disclosure of adverse matters regarding the Property. However, disclosure of known material latent (not obvious) 443 defects is required by law. Seller ❑ Agrees ❑ Does Not Agree to provide a Seller's Property Disclosure form 444 completed to Seller's current, actual knowledge. 445 446 18.2.2. Lead -Based Paint. Unless exempt, if the improvements on the Property include one or more 447 residential dwellings for which a building permit was issued prior to January 1, 1978, a completed Lead -Based 448 Paint Disclosure (Sales) form must be signed by Seller and the real estate licensees, and given to any potential 449 450 buyer in a timely manner. 451 18.2.3. Carbon Monoxide Alarms. Note: If the improvements on the Property have a fuel -fired 452 heater or appliance, a fireplace, or an attached garage and one or more rooms lawfully used for sleeping purposes 454 (Bedroom), Seller understands that Colorado law requires that Seller assure the Property has an operational 455 carbon monoxide alarm installed within fifteen feet of the entrance to each Bedroom or in a location as required by 456 the applicable building code, prior to offering the Property for sale or lease. 457 458 459 18.3. Right of Broker to Terminate. Although Broker has no obligation to investigate or inspect the 460 Property, and no duty to verify statements made, Broker shall have the right to terminate this Seller Listing 461 462 Contract if the physical condition of the Property, Inclusions, any proposed or existing transportation project, road, 463 street or highway, or any other activity, odor or noise (whether on or off the Property) and its effect or expected 464 effect on the Property or its occupants, or if any facts or suspicions regarding circumstances that could 465 466 psychologically impact or stigmatize the Property are unsatisfactory to Broker. 467 468 19. FORFEITURE OF PAYMENTS. In the event of a forfeiture of payments made by a buyer, the sums.received 469 470 shall be divided between Brokerage Firm and Seller, one -half thereof to Brokerage Firm but not to exceed the 471 Brokerage Firm compensation agreed upon herein, and the balance to Seller. Any forfeiture of payment under this 472 section shall not reduce any Brokerage Firm compensation owed, earned and payable under § 7. 473 474 475 20. COST OF SERVICES AND REIMBURSEMENT. Unless otherwise agreed upon in writing, Brokerage Firm 476 shall bear all expenses incurred by Brokerage Firm, if any, to market the Property and to compensate cooperating 477 478 brokerage firms, if any. Neither Broker nor Brokerage Firm shall obtain or order any other products or services 479 unless Seller agrees in writing to pay for them promptly when due (examples: surveys, radon tests, soil tests, title 480 reports, engineering studies). Unless otherwise agreed, neither Broker nor Brokerage Firm shall be obligated to 481 482 advance funds for the benefit of Seller in order to complete a closing. Seller shall reimburse Brokerage Firm for 483 payments made by Brokerage Firm for such products or services authorized by Seller. 484 486 21. DISCLOSURE OF SETTLEMENT COSTS. Seller acknowledges that costs, quality, and extent of service 487 vary between different settlement service providers (e.g., attorneys, lenders, inspectors and title companies). 488 489 490 22• MAINTENANCE OF THE PROPERTY. Neither Broker nor Brokerage Firm shall be responsible for. 491 maintenance of the Property nor shall they be liable for damage of any kind occurring to the Property, unless such 492 damage shall be caused by their negligence or intentional misconduct. 493 494 495 23. NONDISCRIMINATION. The parties agree not to discriminate unlawfully against any prospective buyer 496 because of the race, creed, color, sex, sexual orientation, marital status, familial status, physical or mental . 497 498 disability, handicap, religion, national origin or ancestry of such person. 499 LC50 -8 -10. EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT Page 6 of 8 CTMeContracts.com - 02012 CTM Software Corp. 500 24. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Seller acknowledges 501 that Broker has advised that this document has important legal consequences and has recommended consultation sot P 9 q 503 with legal and tax or other counsel before signing this Seller Listing Contract. 504 506 25. MEDIATION. If a dispute arises relating to this Seller Listing Contract, prior to or after closing, and is not 507 resolved, the parties shall first proceed in good faith to submit the matter to mediation. Mediation is a process in 508 which the parties meet with an impartial person who helps to resolve the dispute informally and confidentially. 509 Mediators cannot impose binding decisions. The parties to the dispute must agree, in writing, an s10 P 9 P P 9 9, Y 511 settlement is binding. The parties will jointly appoint an acceptable mediator and will share equally in the cost of 512 such mediation. The mediation, unless otherwise agreed, shall terminate in the event the entire dispute is not 514 resolved within 30 calendar days of the date written notice requesting mediation is delivered by one party to the 515 other at the party's last known address. 516 517 26. ATTORNEY FEES. In the event of an arbitration or litigation relating to this Seller Listing Contract, the 518 Y 9 9 9 519 arbitrator or court shall award to the prevailing party all reasonable costs and expenses, including attorney and 520 legal fees. 522 523 27. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado 525 Real Estate Commission.) 526 527 28. ATTACHMENTS. The following are a part of this Seller Listing Contract: 528 529 530 29. NO OTHER PARTY OR INTENDED BENEFICIARIES. Nothing in this Seller Listing Contract shall be 531 deemed to inure to the benefit of any person other than Seller, Broker and Brokerage Firm. 532 533 534 30. NOTICE, DELIVERY AND CHOICE OF LAW. 535 30.1. Physical Delivery. All notices must be in writing, except as provided in § 30.2. Any document, 536 537 including a signed document or notice, delivered to the other party to this Seller Listing Contract, is effective upon 538 physical receipt. Delivery to Seller shall be effective when physically received by Seller, any signator on behalf of 539 Seller, any named individual of Seller or representative of Seller. 540 541 30.2. Electronic Dielivery. As an alternative to physical delivery, any document, including any signed 542 document or written notice may be delivered in electronic form only by the following indicated methods: 543 544 ❑ Facsimile El E-mail ❑ Internet ❑ No Electronic Delivery. Documents with original signatures 545 shall be provided upon request of any party. 546 30.3. Choice of Law. This Seller Listing Contract and all disputes arising hereunder shall be governed by 547 548 and construed in accordance with the laws of the State of Colorado that would be applicable to Colorado residents 549 who sign a contract in this state for property located in Colorado. 550 551 552 31. MODIFICATION OF THIS SELLER LISTING CONTRACT. No subsequent modification of any of the terms 553 of this Seller Listing Contract shall be valid, binding upon the parties, or enforceable unless made in writing and 554 signed by the parties. 555 556 557 32. COUNTERPARTS. If more than one person is named as a Seller herein, this Seller'Listing Contract may be 558 executed by each Seller, separately, and when so executed, such copies taken together with one executed by 559 560 Broker on behalf of Brokerage Firm shall be deemed to be a full and complete contract between the parties. 561 562 33. ENTIRE AGREEMENT. This agreement constitutes the entire contract between the parties, and any prior 563 564 agreements, whether oral or written, have been merged and integrated into this Seller Listing Contract. 565 566 34. COPY OF CONTRACT. Seller acknowledges receipt of a copy of this Seller Listing Contract signed by 567 568 Broker, including all attachments. 569 570 Brokerage Firm authorizes Broker to execute this Seller Listing Contract on behalf of Brokerage Firm. 571 572 573 574 575 Seller: Date: 576 577 578 Address: 579 Phone: Fax: 580 Electronic Address: 581 582 583 LC50 -8 -10. EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT Page 7 of 8 CTMeContracts.com - 02012 CTM Software Corp. 584 585 586 587 588 589 590 591 592 593 594 595 596 597 Broker: Andrew Ernemann Date: Brokerage Firm's Name: BJ *ADAMS AND COMPANY Address: 534 E. Hopkins Avenue Aspen, CO 81611 Ph: 970 - 922 -2111 Fax: 970 - 920 -2927 Electronic Address: Andrew @bjac.net LCSO -8 -10 EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT CTM eContracts - (,` -2011 CTM Software Corp. LC50 -8 -10. EXCLUSIVE RIGHT -TO -SELL LISTING CONTRACT Page 8 of 8 CTMeContracts.com - 02012 CTM Software Corp. 1 B7 *ADAMS AND COMPANY 2 ,,;t„ �„ 3 534 E. Hopkins Avenue Aspen, CO 81611 4 Andrew Ernemann 5 Ph: 970-922-2111 Fax: 970-920-2927 6 he printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate 7 Commission. (CBS1- 10 -11) (Mandatory 1 -12) 8 9 10 THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL 12 AND TAX OR OTHER COUNSEL BEFORE SIGNING. 13 14 CONTRACT TO BUY AND SELL REAL ESTATE 15 (RESIDENTIAL) 16 17 is Date: 411812012 19 20 21 AGREEMENT 22 23 24 1. AGREEMENT. Buyer, identified in § 2.1, agrees to buy, and Seller, identified in § 2.3, agrees to sell, the 25 Property described below on the terms and conditions set forth in this contract (Contract). 26 27 29 2. PARTIES AND PROPERTY. 30 2.1. Buyer. Buyer, , will take title to the Property described below as ❑ Joint Tenants ❑ Tenants 32 In Common El Other 33 2:2. Assignability and Inurement. This ContractEl Shall 11 Shall. Not be assignable by Buyer 34 without Seller's prior written consent. Except as so restricted, this Contract shall inure to the benefit of and be 35 binding upon the heirs, personal representatives, successors and assigns of the parties. 36 37 2.3. Seller. Seller, , is the current owner of the Property described below. 38 2.4. Property. The Property is the following legally described real estate in the County of 39 40 Colorado: 41 42 known as No. CO, 43 44 together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, 45 and all interest of Seller in vacated streets and alleys adjacent thereto, except as herein excluded (Property). 46 2,5. Inclusions. The Purchase Price includes the following items (Inclusions): 47 48 2.5.1. Fixtures. If attached to the Property on the date of this Contract: lighting, heating, plumbing, 49 ventilating and air conditioning fixtures, TV antennas, inside telephone, network and coaxial (cable) wiring and 50 connecting blocks /jacks, plants, mirrors, floor coverings, intercom systems, built —in kitchen appliances, sprinkler 51 52 systems and controls, built —in vacuum systems (including accessories), garage door openers including 53 remote controls. 54 Other Fixtures: 55 ' 56 If any fixtures are attached to the Property after the date of this Contract, such additional fixtures are also included 57 in the Purchase Price. 58 59 2.5.2. Personal Property. If on the Property whether attached or not on the date of this Contract: 60 storm windows, storm doors, window and porch shades, awnings, blinds, screens, window coverings, curtain rods, 61 drapery rods, fireplace inserts, fireplace screens, fireplace grates, heating stoves, storage sheds, and all keys. If 62 63 checked, the following are included: ❑ Water Softeners ❑ Smoke /Fire Detectors ❑ Security Systems 64 ❑ Satellite Systems (including satellite dishes). 65 Other Personal Property: 66 p Y: 67 68 The Personal Property to be conveyed at Closing shall be conveyed by Seller free and clear %of all 69 70 taxes (except personal property taxes for the year of Closing), liens and encumbrances, except 71 Conveyance shall be by bill of sale or other applicable legal instrument. 72 73 2.5.3. Parking and Storage Facilities. ❑ Use Only, ❑ Ownership of the following parking 74 facilities: ; and ❑ Use Only ❑ Ownership 75 g 76 of the following storage facilities: 77 78 2.5.4. Water Rights, Water and Sewer Taps. 79 80 2.5.4.1. Deeded Water Rights. The following legally described water rights: 81 82 83 Any water rights shall be conveyed byE1 Deed El Other applicable legal 84 instrument. CBSI -10 -1 1. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page l of 15 CTMeContracts.com - 02012 CTM Software Corp. 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 ISO 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166. ❑ 2.5.4.2. Well Rights. If any water well is to be transferred to Buyer, Seller agrees to supply required information about such well to Buyer. Buyer understands that if the well to be transferred is a Small Capacity Well or a Domestic Exempt Water Well used for ordinary household purposes, Buyer shall, prior to or at Closing, complete a Change in Ownership form for the well. If an existing well has not been registered with the Colorado Division of Water Resources in the Department of Natural Resources (Division), Buyer shall complete a registration of existing well form for the well and pay the cost of registration. If no person will be providing a closing service in connection with the transaction, Buyer shall file the form with the Division within sixty days after Closing. The Well Permit # is 2.5.4.3. ❑ Water Stock Certificates: 2.5.4.4. 0 Water Tap ❑ Sewer Tap Note: Buyer is advised to obtain, from the provider, written confirmation of the amount remaining to be paid, if any, time and other restrictions for transfer and use of the tap. 2.5.4.5. Other Rights: 2.6. Exclusions. The following items are excluded (Exclusions): 3. DATES AND DEADLINES. Item No. Reference Event Date or Deadline [1 § 4.2 Alternative Earnest Money Deadline Title and Association �2 § 7.1 Record Title Deadline 13 § 7.2 Exceptions Request Deadline !4 § 8.1 Record Title Objection Deadline 15 § 8.2 Off - Record Title Deadline j6 § 8.2 Off - Record Title Objection Deadline 17 § 8.3 Title Resolution Deadline 18 § 7.3 Association Documents Deadline 9 § 7.3 Association Documents Objection Deadline �10 § 8.5 Right of First Refusal Deadline Seller's Property Disclosure X11 1§ 10.1 Seller's Property Disclosure Deadline Loan and Credit 112 § 5.1 Loan Application Deadline 13 § 5.2 Loan Conditions Deadline 114 § 5.3 Buyer's Credit Information Deadline 115 § 5.3 Disapproval of Buyer's Credit Information Deadline 16 § 5.4 _ Existing Loan Documents Deadline 117 1§ 5:4 Existing Loan Documents Objection Deadline 118 § 5.4 Loan Transfer Approval Deadlinem __ Appraisal 19 § 6.2 Appraisal Deadline 120 1§ 6.2 Appraisal Objection Deadline Survey 121 § 9.1 Current Survey Deadline 22 1§ 9.2 Current Survey Objection Deadline Inspection and Due Diligence �23 § 10.2 Inspection Objection Deadline 24 § 10.3 Inspection Resolution Deadline �25 § 10.5 Property Insurance Objection Deadline 26 § 10.6 Due Diligence Documents Delivery Deadline 27 § 10.7 Due Diligence Documents Objection Deadline Closing and Possession CBS]- ]0 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 2 of 15 CTMeContracts.com - 02012 CTM Software Corp. 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 28 § 12.3 Closing Date Amount 129 § 17 Possession Date Purchase Price 30 § 17 Possession Time § 4.2 {31 §28 Acceptance Deadline Date 3 132 §28 Acceptance Deadline Time 133 § 4.6 Assumption Balance !34 5 § 4.7 Seller or Private Financing Note: Applicability of Terms. Any box, blank or line in this Contract left blank or completed with the abbreviation "N /A ", or the word "Deleted" means such provision in Dates and Deadlines (§ 3), including any deadline, is not applicable and the corresponding provision of this Contract to which reference is made is deleted. The abbreviation "MEC" (mutual execution of this Contract) means the date upon which both parties have signed this Contract. Note: If FHA or VA loan boxes are checked in § 4.5.3 (Loan Limitations), the Appraisal Deadline (§ 3) does Not apply to FHA. insured or VA guaranteed loans. 4. PURCHASE PRICE AND TERMS. 4:1. Price and Terms. The Purchase Price set forth below shall be payable in U.S. Dollars by Buyer as follows: [Item Reference w_ Item -___.__ Amount Amount- - 1 § 4.1 Purchase Price 2 § 4.2 Earnest Money 3 § 4.5 New Loan 4 § 4.6 Assumption Balance 5 § 4.7 Seller or Private Financing 6 17 8 § 4.3 Cash at Closing 19 TOTAL 4.2. Earnest Money. The Earnest Money set forth in this section, in the form of , shall be payable to and held by (Earnest Money Holder), in its trust account, on behalf of both Seller and Buyer. The Earnest Money deposit shall be tendered with this Contract unless the parties mutually agree to an Alternative Earnest Money Deadline (§ 3) for its payment. If Earnest Money Holder is other than the Brokerage Firm identified in § 33 or § 34, Closing Instructions signed by Buyer, Seller and Earnest Money Holder must be obtained on or before delivery of Earnest Money to Earnest Money Holder. The parties authorize delivery of the Earnest Money deposit to the company conducting the Closing (Closing Company), if any, at or before Closing. In the event Earnest Money Holder has agreed to have interest on Earnest Money deposits transferred to a fund established for the purpose of providing affordable housing to Colorado residents, Seller and Buyer acknowledge and agree that any interest accruing on the Earnest Money deposited with the Earnest Money Holder in this transaction shall be transferred to such fund. 4.2.1. Alternative Earnest Money Deadline. The deadline for delivering the Earnest Money, if other than at the time of tender of this Contract is as set forth as the Alternative Earnest Money Deadline (§ 3). 4.2.2. Return of Earnest Money. If Buyer has a Right to Terminate and timely terminates, Buyer shall be entitled to the return of Earnest Money as provided in this Contract. If this Contract is terminated as set forth in § 25 and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate, Seller agrees to execute and return to Buyer or Broker working with Buyer, written mutual instructions, i.e., Earnest Money Release form, within three days of Seller's receipt of such form. 4.3. Form of Funds; Time of Payment; Funds Available. 4.3.1. Good Funds. All amounts payable by the parties at Closing, including any loan proceeds, Cash at Closing and closing costs, shall be in funds that comply with all applicable Colorado laws, including electronic transfer funds, certified check, savings and loan teller's check and cashier's check (Good Funds). 4.3.2. Available Funds. All funds required to be paid at Closing or as otherwise agreed in writing between the parties shall be timely paid to allow disbursement by Closing Company at Closing OR SUCH CBS 1- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 3 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 250 PARTY SHALL BE IN DEFAULT. Buyer represents that Buyer, as of the date of this Contract, ❑ Does ❑ Does 251 252 Not have funds that are immediately verifiable and available in an amount not less than the amount stated as 253 Cash at Closing in § 4.1. 254 zss 4.4. Seller Concession. Seller, at Closing, shall credit, as directed by Buyer, an 256 amount of $ to assist with Buyer's closing costs, loan discount points, loan origination fees, 257 prepaid items (including any amounts that Seller agrees to pay because Buyer is not allowed to pay due to FHA, 258 CHFA, VA, etc.), and an other fee, cost, charge, expense or expenditure related to Buyer's New Loan or other 259 ) Y 9 P P Y 26o allowable Seller concession (collectively, Seller Concession). Seller Concession is in addition to any sum Seller 261 has agreed to pay or credit Buyer elsewhere in this Contract. Seller Concession shall be reduced to the extent it 262 263 exceeds the amount allowed by Buyer's lender as set forth in the Closing Statement or HUD -1, at Closing. 264 4.5. New Loan. 265 266 4.5.1. Buyer to Pay Loan Costs. Buyer, except as provided in § 4.4, if applicable, shall timely pay. 267 Buyer's loan costs, loan discount points, prepaid items and loan origination fees, as required by lender. 268 4.5.2. Buyer May Select Financing. Buyer may pay in cash or select financing appropriate and 269 270 acceptable to Buyer, including a different loan than initially sought, except as restricted in § 4.5.3 or § 30 271 (Additional Provisions). 272 4.5.3. Loan Limitations. Buyer may purchase the Property using any of the following types of 273 274 loan: ❑ Conventional ❑ FHA ❑ VA ❑ Bond ❑ Other 275 4.5.4. Good Faith Estimate – Monthly Payment and Loan Costs. Buyer is advised to review the 276 277 terms, conditions and costs of Buyer's New Loan carefully. If Buyer is applying for a residential loan, the lender 278 generally must provide Buyer with a good faith estimate of Buyer's closing costs within three days after Buyer 279 completes a loan application. Buyer should also obtain an estimate of the amount of Buyer's monthly mortgage 280 281 payment. If the New Loan is unsatisfactory to Buyer, Buyer shall have the Right to Terminate under § 25.1, on or 282 before Loan Conditions Deadline (§ 3). 283 4.6. Assumption. Buyer agrees to assume and pay an existing loan in the approximate amount of 284 285 the Assumption Balance set forth in § 4. 1, presently payable at $ per including 286 principal and interest presently at the rate of % per annum, and also including escrow for the following as 287 indicated: ❑Real Estate Taxes ❑ Property Insurance Premium ❑Mort a e Insurance Premium and ❑ 2ss P Y 9 g 289 290 Buyer agrees to pay a loan transfer fee not to exceed $ At the time of assumption, 291 292 the new interest rate shall not exceed % per annum and the new payment shall not exceed $ 293 per principal and interest, plus escrow, if any. If the actual principal balance of the existing loan at 294 Closing is less than the Assumption Balance, which causes the amount of cash required from Buyer at Closing to 295 9� P� q Y 9 296 be increased by more than $ , then Buyer shall have the Right to Terminate under § 25.1 on or before 297 Closing Date (§ 3), based on the reduced amount of the actual principal balance. 298 299 Seller ❑Shall ❑Shall Not be released from liability on said loan. If applicable, compliance with the 300 requirements for release from liability shall be evidenced by delivery ❑ on or before Loan Transfer Approval 301 Deadline 3 ❑ at Closing of an appropriate letter of commitment from lender. An cost payable for release of 302 (§ ) 9 Y P Y 303 liability shall be paid by in an amount not to exceed $ 304 4.7. Seller or Private Financing. Buyer agrees to execute a promissory note payable to: 305 306 as ❑ Joint Tenants ❑ Tenants in Common ❑ Other 307 on the note form as indicated: ❑ (Default Rate) NTD81 -10 -06 3 3009 9 El Other secured by a (Ist, 2nd, etc.) deed of trust 310 encumbering the Property, using the form as indicated: 311 ❑ Due on Transfer - Strict (TD72 -8 -10) ❑ Due on Transfer - Creditworthy (TD73 -8 -10) ❑ Assumable - 312 313 Not Due on Transfer (TD74 -8 -10) ❑ Other . 314 The promissory note shall be amortized on the basis of ❑ Years []Months, payable at $ 315 per including principal and interest at the rate of % per annum. Pa ments shall 316 P 9P P P Y 317 commence and shall be due on the day of each succeeding . If not sooner 318 paid, the balance of principal and accrued interest shall be due and payable after Closing. 319 320 Payments ❑Shall ❑Shall Not be increased by of estimated annual real estate taxes, and 321 ❑ Shall ❑Shall Not be increased by of estimated annual property insurance premium. The loan shall 322 323 also contain the following terms: (1) if any payment is not received within days after its due date, a late 324 charge of % of such payment shall be due; (2) interest on lender disbursements under the deed of 325 326 trust shall be % per annum; (3) default interest rate shall be % per annum; (4) Buyer may 327 prepay without a penalty except ; and (5) Buyer ❑Shall 328 ❑Shall Not execute and deliver, at Closing, a Security Agreement and UCC -1 Financing Statement granting the 329 330 holder of the promissory note a (1st, 2nd, etc.) lien on the personal property included in this sale. 331 Buyer ❑Shall ❑Shall Not provide a mortgagee's title insurance policy, at Buyer's expense. 332 333 CBS 1- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 4 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 334 TRANSACTION PROVISIONS 335 336 337 5. FINANCING CONDITIONS AND OBLIGATIONS. 338 5.1. Loan Application. If Buyer is to pay all or part of the Purchase Price by obtaining one or more new 339 loans (New Loan), or if an existing loan is not to be released at Closing, Buyer, if required by such lender, shall 341 341 make an application verifiable by such lender, on or before Loan Application Deadline (§ 3) and exercise 342 reasonable efforts to obtain such loan or approval. 343 5.2. Loan Conditions. If Buyer is to pay all or part of the Purchase Price with a New Loan, this Contract 344 345 is conditional upon Buyer determining; in Buyer's sole subjective discretion, whether the New Loan is satisfactory 346 to Buyer, including its availability, payments, interest rate, terms, conditions, and cost of such New Loan. This 347 condition is for the benefit of Buyer. Buyer shall have the Right to Terminate under§ 25.1, on or before Loan 348 349 Conditions Deadline (§ 3), if the New Loan is not satisfactory to Buyer, in Buyer's sole subjective discretion. IF 350 SELLER DOES NOT TIMELY RECEIVE WRITTEN NOTICE TO TERMINATE, BUYER'S EARNEST MONEY 351 SHALL BE NONREFUNDABLE, except as otherwise provided in this Contract (e.g., Appraisal, Title, Survey). 352 5.3. Credit Information and Buyer's New Senior Loan. If Buyer is to pay all or part of the Purchase 353 354 Price by executing a promissory note in favor of Seller, or if an existing loan is not to be released at Closing, this 355 Contract is conditional (for the benefit of Seller) upon Seller's approval of Buyer's financial ability and 356 357 creditworthiness, which approval shall be at Seller's sole subjective discretion. In such case: (1) Buyer shall 358 supply to Seller by Buyer's Credit Information Deadline (§ 3), at Buyer's expense, information and documents 359 (including a current credit report) concerning Buyer's financial, employment and credit condition and Buyer's New 361 361 Senior Loan, defined below, if any; (2) Buyer consents that Seller may verify Buyer's financial ability and ' 362 creditworthiness; (3) any such information and documents received by Seller shall be held by Seller in confidence, 363 and not released to others except to protect Seller's interest in this transaction; and (4) in the event Buyer is to 364 365 execute a promissory note secured by a deed of trust in favor of Seller, this Contract is conditional (for the benefit 366 of Seller) upon Seller's approval of the terms and conditions of any New Loan to be obtained by Buyer if the deed 367 of trust to Seller is to be subordinate to Buyer's New Loan (Buyer's New Senior Loan). If the Cash at Closing is 368 less than as set forth in § 4.1 of this Contract or Buyer's New Senior Loan changes from that approved by Seller, 369 371 Seller shall have the Right to Terminate under § 25.1, at or before Closing. If Seller disapproves of Buyer's financial 371 ability, creditworthiness or Buyer's New Senior Loan, in Seller's sole subjective discretion, Seller shall have the 373 Right to Terminate under § 25.1, on or before Disapproval of Buyer's Credit Information Deadline (§ 3). 374 5.4. Existing Loan Review. If an existing loan is not to be released at Closing, Seller shall deliver copies 375 of the loan documents (including note, deed of trust, and any modifications) to Buyer by Existing Loan 376 Documents Deadline (§ 3). For the benefit of Buyer, this Contract is conditional upon Buyer's review and 377 378 approval of the provisions of such loan documents. Buyer shall have the Right to terminate under § 25.1, on or 379 before Existing Loan Documents Objection Deadline (§ 3), based on any unsatisfactory provision of such loan 381 381 documents, in Buyer's sole subjective discretion. If the lender's approval of a transfer of the Property is required, 382 this Contract is conditional upon Buyer's obtaining such approval without change in the terms of such loan, except 383 as set forth in § 4.6. If lender's approval is not obtained by Loan Transfer" Approval Deadline (§ 3), this Contract 384 385 shall terminate on such deadline. Seller shall have the Right to Terminate under § 25.1, on or before Closing, in 386 Seller's sole subjective discretion, if Seller is to be released from liability under such existing loan and Buyer does 387 not obtain such compliance as set forth in § 4.6. 388 389 390 6. APPRAISAL PROVISIONS. 391 6.1. Lender Property Requirements. If the lender imposes any requirements or repairs (Requirements) . 392 to be made to the Property ( e. 9, roof repair, repainting), beyond those matters already agreed to,by Seller in this 393 394 Contract, Seller shall have the Right to Terminate under § 25.1, (notwithstanding § 10 of this Contract), on or 395 before three days following Seller's receipt of the Requirements, based on any unsatisfactory Requirements, in 396 Seller's sole subjective discretion. Seller's Right to Terminate in this 6.1 shall not apply if, on or before an 397 J 9 § PP Y • . Y 398 termination by Seller pursuant to this § 6.1: (1) the parties enter into a written agreement regarding the 399. Requirements; or (2) the Requirements have been completed; or (3) the satisfaction of the Requirements is waived 401 9 Y er. in writing b Buy Y 402 6.2. Appraisal Condition. The applicable Appraisal provision set forth below shall apply to the 403 respective loan type set forth in § 4.5.3, or if a cash transaction, i.e. no financing, § 6.2.1 shall apply. 404 405 6.2.1. Conventional /Other. Buyer shall have the sole option and election to terminate this 406 Contract if the Property's valuation is less than the Purchase Price determined by an appraiser engaged on behalf 407 of . The appraisal shall be received by Buyer or Buyer's lender on or before Appraisal 409 Deadline (§ 3). Buyer shall have the Right to Terminate under § 25.1, on or before Appraisal Objection 4] 0 Deadline (§ 3), if the Property's valuation is less than the Purchase Price and Seller's receipt of either a copy of 411 such appraisal or written notice from lender that confirms the Property's valuation is less than the Purchase Price. 412 6.2.2. FHA. It is expressly agreed that, notwithstanding an other provisions of this Contract, 413 P Y 9 9 Y P 414 the Purchaser (Buyer) shall not be obligated to complete the purchase of the Property described herein or to incur 415 any penalty by forfeiture of Earnest Money deposits or otherwise unless the Purchaser (Buyer) has been given in 416 417 accordance with HUD /FHA or VA requirements a written statement issued by the Federal Housing Commissioner, CBSI- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 5 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 418 Department of Veterans Affairs, or a Direct Endorsement lender, setting forth the appraised value of the Property of 419 not less than $ The Purchaser (Buyer) shall have the privilege and option of proceeding with the 420 42.1 consummation of the Contract without regard. to the amount of the appraised valuation. The appraised valuation is 422 arrived at to determine the maximum mortgage the Department of Housing and Urban Development will insure. 423 HUD does not warrant the value nor the condition of the Property. The Purchaser (Buyer) should satisfy 424 425 himself /herself that the price and condition of the Property are acceptable. 426 6.2.3. VA. It is expressly agreed that, notwithstanding any other provisions of this Contract, the 427 purchaser (Buyer) shall not incur any penalty by forfeiture of Earnest Money or otherwise or be obligated to 428 429 complete the purchase of the Property described herein, if the Contract Purchase Price or cost exceeds the 430 reasonable value of the Property established by the Department of Veterans Affairs.The purchaser (Buyer) shall, 431 however, have the privilege and option of proceeding with the consummation of this Contract without regard to the 432 433 amount of the reasonable value established by the Department of Veterans Affairs. 434 6.3. Cost of Appraisal. Cost of any appraisal to be obtained after the date of this Contract shall be 435 436 timely paid by ❑Buyer ❑Seller . 437 438 7, EVIDENCE OF TITLE AND ASSOCIATION DOCUMENTS. 439 440 7.1. Evidence of Title. On or before Record Title Deadline (§ 3), Seller shall cause to be 441 furnished to Buyer, at Seller's expense, a current commitment for owner's title insurance policy (Title 442 Commitment) in an amount equal to the Purchase Price, or if this box is checked, ❑ An Abstract of title 443 444 certified to a current date. If title insurance is furnished, Seller shall also deliver to Buyer copies of any abstracts of 445 title covering all or any portion of the Property (Abstract) in Seller's possession. At Seller's expense, Seller shall 446 447 cause the title insurance policy to be issued and delivered to Buyer as soon as practicable at or after Closing. The 448 title insurance commitment ❑Shall ❑ Shall Not commit to delete or insure over the standard exceptions which 449 relate to: (1) parties in possession, (2) unrecorded easements, (3) survey matters, (4) unrecorded mechanics' 450 liens, 5 a period effective date of commitment to date deed is recorded and 6 unpaid taxes, assessments 451 O gap P ( ). O P 452 and unredeemed tax sales prior to the year of Closing. Any additional premium expense to obtain this additional 453 coverage shall be paid by ❑ Buyer ❑ Seller . 454 455 Note: The title insurance company may not agree to delete or insure over any or all of the standard exceptions. 456 Buyer shall have the right to review the Title Commitment, its provisions and Title Documents (defined in § 7.2), 457 and if not satisfactory to Buyer, Buyer may exercise Buyer's rights pursuant to § 8.1. 458 459 7.2. Copies of Exceptions. On or before Record Title Deadline (§ 3), Seller, at Seller's expense, 460 shall furnish to Buyer and (1) copies of any 461 plats, declarations, covenants, conditions and restrictions burdening the Property, and (2) if a Title Commitment is 462 463 required to be furnished, and if this box is checked ❑ Copies of any Other Documents (or, if illegible, 464 summaries of such documents) listed in the schedule of exceptions (Exceptions). Even if the box is not checked, 465 466 Seller shall have the obligation to furnish these documents pursuant to this section if requested by Buyer any time 467 on or before Exceptions Request Deadline (§ 3). This requirement shall pertain only to documents as shown of 468 record in the office of the clerk and recorder in the county where the Property is located. The Abstract or Title 469 Commitment, together 470 with any copies or summaries of such documents furnished pursuant to this section, 471 constitute the title documents (collectively, Title Documents). 472 7.3. Homeowners' Association Documents. The term Association Documents consists of all 473 474 owners' associations (Association) declarations, bylaws, operating agreements, rules and regulations, party wall 475 agreements, minutes of most recent annual owners' meeting and minutes of any directors' or managers' meetings 476 during the six -month period immediately preceding the date of this Contract, if any (Governing Documents), most 477 478 recent financial documents consisting of (1) annual balance sheet, (2) annual income and expenditures statement, 479 and (3) annual budget (Financial Documents), if any (collectively, Association Documents). 480 7.3.1. Common Interest Community Disclosure. THE PROPERTY IS LOCATED WITHIN A 481 482 COMMON INTEREST COMMUNITY AND IS SUBJECT TO THE DECLARATION FOR SUCH COMMUNITY. THE 483 OWNER OF THE PROPERTY WILL BE REQUIRED TO BE A MEMBER OF THE OWNER'S ASSOCIATION FOR 484 THE COMMUNITY AND WILL BE SUBJECT TO THE BYLAWS AND RULES AND REGULATIONS OF THE 485 486 ASSOCIATION. THE DECLARATION, BYLAWS, AND RULES AND REGULATIONS WILL IMPOSE FINANCIAL 487 OBLIGATIONS UPON THE OWNER OF THE PROPERTY, INCLUDING AN OBLIGATION TO PAY 488 ASSESSMENTS OF THE ASSOCIATION. IF THE OWNER DOES NOT PAY THESE ASSESSMENTS, THE 489 490 ASSOCIATION COULD PLACE A LIEN ON THE PROPERTY AND POSSIBLY SELL IT TO PAY THE DEBT. 491 THE DECLARATION, BYLAWS, AND RULES AND REGULATIONS OF THE COMMUNITY MAY PROHIBIT THE 492 OWNER FROM MAKING CHANGES TO THE PROPERTY WITHOUT AN ARCHITECTURAL REVIEW BY THE 494 ASSOCIATION (OR A COMMITTEE OF THE ASSOCIATION) AND THE APPROVAL OF THE ASSOCIATION. 495 PURCHASERS OF PROPERTY WITHIN THE COMMON INTEREST COMMUNITY SHOULD INVESTIGATE THE 496 FINANCIAL OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. PURCHASERS SHOULD CAREFULLY 497 498 READ THE DECLARATION FOR THE COMMUNITY AND THE BYLAWS AND RULES AND REGULATIONS OF 499 THE ASSOCIATION. CBSl- 10 -11., CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 6 of 15 CTMeContracts. coin - 02012 CTM Software Corp. 500 7.3.2. Association Documents to Buyer 501 502 7.3.2.1. Seller to Provide Association Documents. Seller shall cause the Association 503 Documents to be provided to Buyer, at Seller's expense, on or before Association Documents Deadline (§ 3). 504 Ei 505 7.3.2.2. Seller Authorizes Association. Seller authorizes the Association to provide the 506 Association Documents to Buyer, at Seller's expense. 508 7.3.2.3. Seller's Obligation. Seller's obligation to provide the Association Documents 509 shall be fulfilled upon Buyer's receipt of the Association Documents, regardless of who provides such documents. 510 Note: If neither box in this § 7.3.2 is checked, the provisions of § 7.3.2.1 shall apply. 511 7.3.3. Conditional on Buyer's Review. If the box in either § 7.3.2.1 or § 7.3.2.2 is checked, 513 the provisions of this § 7.3.3 shall apply. Buyer shall have the Right to Terminate under § 25.1, on or before 514 Association Documents Objection Deadline (§ 3), based on any unsatisfactory provision in any of the 515 Association Documents, in Buyer's sole subjective discretion. Should Buyer receive the Association Documents - 516 after Association Documents Deadline 3 Buyer, at Buyer's option, shall have the Right to Terminate under 517 (§ ), Y Y P 9 § 518 25.1 by Buyer's Notice to Terminate received by Seller on or before ten days after Buyer's receipt of the 529 Association Documents. If Buyer does not receive the Association Documents, or, if Buyer's Notice to Terminate 521 would otherwise be. required to be received by Seller after Closing Date (§ 3), Buyer's Notice to Terminate shall be 522 received by Seller on or before three days prior to Closing Date (§ 3). If Seller does not receive Buyer's Notice to 523 Terminate within such time, Buyer accepts the provisions of the Association Documents as satisfactory, and 525 Buyer waives any Right to Terminate under this provision, notwithstanding the provisions of § 8.5. 526 527 RECORD TITLE AND OFF — RECORD TITLE MATTERS. 529 8.1. Record Title Matters. Buyer has the right to review and object to an of the Title Documents (Right 529 Y 9 1 Y ( 9 530 to Object, Resolution) as set forth in § 8.3. Buyer's objection may be based on any unsatisfactory form or content 531 -of Title Commitment, notwithstanding § 13, or any other unsatisfactory title condition, in Buyer's sole subjective 533 discretion. If Buyer objects to any.of the Title Documents, Buyer shall cause Seller to receive Buyer's Notice to 534 Terminate or Notice of Title Objection on or before Record Title Objection Deadline (§ 3). If Title Documents are 535 not received by Buyer, on or before the Record Title Deadline (§ 3), or if there is an endorsement to the Title 536 Commitment that adds a new Exception to title, a co of the new Exception to title and the modified Title 537 P � PY P 538 Commitment shall be delivered to Buyer. Buyer shall cause Seller to receive Buyer's Notice to Terminate or Notice 539 of Title Objection on or before ten days after receipt by Buyer of the following documents: (1) any required Title 54, Document not timely received by Buyer, (2) any change to the Title Documents, or (3) endorsement to the Title 542 Commitment. If Seller receives Buyer's Notice to Terminate or Notice of Title Objection, pursuant to this § 8.1 543 (Record Title Matters), any title objection by Buyer and this Contract shall be governed by the provisions set forth 544 in 8.3 (Right to Object, Resolution If Seller does not receive Buyer's Notice to Terminate or Notice of Title 545 § ( 9 1 )• Y 546 Objection by the applicable deadline specified above, Buyer accepts the condition of title as disclosed by the Title 548 Documents as satisfactory. 549 8.2. Off — Record Title Matters. Seller shall deliver to Buyer, on or before Off — Record Title Deadline 550 ( §.3), true copies of all existing surveys in Seller's possession pertaining to the Property and shall disclose to 551 Buyer all easements, liens (including, without limitation, governmental improvements approved, but not yet 552 installed or other title matters (including, limitation, rights of first refusal and options) not shown b public 553 ) (� 9. 9 P • ) Y P 554 records, of which Seller has actual knowledge. Buyer shall have the right to inspect the Property to investigate if 555 any third party has any right in the Property not shown by public records (such as an unrecorded easement, 556 557 unrecorded lease, boundary line discrepancy or water rights). Buyer's Notice to Terminate or Notice of Title 558 Objection of any unsatisfactory condition (whether disclosed by Seller or revealed by such inspection, 559 notwithstanding § 13), in Buyer's sole subjective discretion, shall be received by Seller on or before Off — Record 560 Title Objection Deadline 3 If Seller receives Buyer's Notice to Terminate or Notice of Title Objection 561 J (§ )• Y 1 562 pursuant to this § 8.2 (Off — Record Title Matters), any title objection by Buyer and this Contract shall be governed 563 by the provisions set forth in § 8.3 (Right to Object, Resolution). If Seller does not receive Buyer's Notice to 564 565 Terminate or Notice of Title Objection, on or before Off — Record Title Objection Deadline (§ 3), Buyer accepts 566 title subject to such rights, if any, of third parties of which Buyer has actual knowledge. 567 8,3. Right to Object, Resolution. Buyer's right to object to any title matters shall include, but not be 568 limited to those matters set forth in 8.1 Record Title Matters 8.2 Off — Record Title Matters and 13 Transfer 569 §§ ( ), ( ) ( 570 of Title), in Buyer's sole subjective discretion (collectively, Notice of Title Objection). If Buyer objects to any title 571 matter, on or before the applicable deadline, Buyer shall have the choice to either (1) object to the condition of 573 title, or (2) terminate this Contract. 574 1 8.3.1. Title Resolution. If Seller receives Buyer's Notice of Title Objection, as provided in § 8.1 575 (Record Title Matters) or § 8.2 (Off— Record Title Matters), on or before the applicable deadline, and if Buyer and 576 577 Seller have not agreed to a written settlement thereof on or before Title Resolution Deadline (§ 3), this Contract 578 shall terminate on the expiration of Title Resolution Deadline (§ 3), unless Seller receives Buyer's written 579 withdrawal of Buyer's Notice of Title. Objection, (i.e., Buyer's written notice to waive objection to such items and 580 waives the right to terminate for that reason), or before expiration of Title Resolution Deadline 3 581 9 ), P� (§ )• 582 8.3.2. Right to Terminate — Title Objection. Buyer shall have the Right to Terminate under § CBS]- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 7 of 15 CTMeContracts.com - 02012 CTM Software Corp. 583 25.1, on or before the applicable deadline, based on any unsatisfactory title matter, in Buyer's sole subjective 584 585 discretion. 586 8.4. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL 587 OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON 589 THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE 590 PLACED AT RISK FOR INCREASED MILL LEVIES AND TAX TO SUPPORT THE SERVICING OF SUCH DEBT 591 WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE 593 SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE 594 THE SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY CONTACTING THE COUNTY 595 TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE PROPERTY, AND BY 597 OBTAINING FURTHER INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY 598 CLERK AND RECORDER, OR THE COUNTY ASSESSOR. 599 Buyer shall have the Right to Terminate under § 25.1, on or before Off — Record Title Objection 601 Deadline 3 based on an unsatisfactory effect of the Property being located within a special taxing district, in 601 (§ )� Y rY P Y 9 P 9 602 Buyer's sole subjective discretion. 603 8.5. Right of First Refusal or Contract Approval. If there is a right of first refusal on the Property, or a 605 right to approve this Contract, Seller shall promptly submit this Contract according to the terms and conditions of 606 such right. If the holder of the right of first refusal exercises such right or the holder of a right to approve 607 disapproves this Contract, this Contract shall terminate. If the right of first refusal is waived explicitly or expires, or 608 the Contract is approved, this Contract shall remain in full force and effect. Seller shall promptly notify Buyer in 609 PP P P Y fY Y 610 writing of the foregoing. If expiration or waiver of the right of first refusal or Contract approval has not occurred on or 611 before Right of First Refusal Deadline (§ 3), this Contract shall then terminate. 612 8.6. Title Advisor The Title Documents affect the title, ownership and use of the Property and should be 613 Y• P P Y 614 reviewed carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership 615 and use of the Property, including, without limitation, boundary lines and encroachments, area, zoning, unrecorded 616 easements and claims of easements, leases and other unrecorded agreements, and various laws and 617 9 618 governmental regulations concerning land use, development and environmental matters. The surface estate may 619 be owned separately from the underlying mineral estate, and transfer of the surface estate does not 620 necessarily include transfer of the mineral rights or water rights. Third parties may hold interests in oil, 621 Y• 9 9 P Y 622 gas, other minerals, geothermal energy or water on or under the Property, which interests may give 623 them rights to enter and use the Property. Such matters may be excluded from or not covered by the title 525 insurance policy. Buyer is advised to timely consult legal counsel with respect to all such matters as there are 626 strict time limits provided in this Contract [e.g., Record Title Objection Deadline (§ 3) and Off — Record Title 627 Objection Deadline (§ 3)]. 628 629 630 9. CURRENT SURVEY REVIEW. 631 9.1. Current Survey Conditions. If the box in § 9.1.1 or § 9.1.2 is checked, Buyer, the issuer of the Title 632 633 Commitment or the provider of the opinion of title if an abstract, and 634 shall receive a Current Survey, i.e., Improvement Location Certificate, Improvement Survey Plat or other form of 635 survey set forth in § 9.1.2 (collectively, Current Survey), on or before Current Survey Deadline (§ 3). The Current 636 637 Survey shall be certified by the surveyor to all those who are to receive the Current Survey. 638 ❑ 9.1.1. Improvement Location Certificate. If the box in this § 9.1.1 is checked, ❑Seller ❑Buyer 640 shall order or provide, and pay, on or before Closing, the cost of an Improvement Location Certificate. 641 ❑ 9.1.2. Other Survey. If the box in this § 9.1.2 is checked, a Current Survey, other than an 643 Improvement Location Certificate, shall be an 1:1 Improvement Survey Plat ❑ The 644 parties agree that payment of the cost of the Current Survey and obligation to order or provide the Current Survey 645 shall be as follows: 646 912. Survey Objection. Buyer shall have the right to review and object to the Current Survey. Buyer shall 647 648 have the Right to Terminate under § 25.1, on or before the Current Survey Objection Deadline (§ 3), if the 649 Current Survey is not timely received by Buyer or based on any unsatisfactory matter with the Current Survey, 650 notwithstanding .§ 8.2 or § 13. 651 652' 653 DISCLOSURE, INSPECTION AND DUE DILIGENCE 654 655 656 10. PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY, DUE DILIGENCE, BUYER 657 DISCLOSURE AND SOURCE OF WATER. 658 659 10.1. Seller's Property Disclosure Deadline. On or before Seller's Property Disclosure Deadline (§ 660 3), Seller agrees to deliver to Buyer the most current version of the applicable Colorado Real Estate Commission's 661 Seller's Property Disclosure form completed by Seller to Seller's actual knowledge, current as of the date of this 662 663 Contract. 664 10.2. Inspection Objection Deadline. Unless otherwise provided in this Contract, Buyer acknowledges 665 that Seller is conveying the Property to Buyer in an "as is" condition, "where is" and "with all faults ". Seller shall 666 CBS]- ]0 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 8 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 667 disclose to Buyer, in writing, any latent defects actually known by Seller. Buyer, acting in good faith, shall have 668 the right to have inspections (by one or more third parties, personally or both) of the Property and Inclusions 669 at Buyer's ex ense. If 1 the physical condition of the Property, g 670 (Inspection), y p () p y p y, includin but not limited to, the roof, 671 walls, structural integrity of the Property, the electrical, plumbing, HVAC and other mechanical systems of the 672 Property, (2) the physical condition of the Inclusions, (3) service to the Property (including utilities and 673 communication services), systems and components of the Property, e.g. heating and plumbing, (4) any proposed 674 675 or existing transportation project, road, street or highway, or (5) any other activity, odor or noise (whether on or off 676 the Property) and its effect or expected effect on the Property or its occupants is unsatisfactory, in Buyer's sole 677 subjective discretion, Buyer shall, on or before Inspection Objection Deadline (§ 3): 678 679 10.2.1. Notice to Terminate. Notify Seller in writing that this Contract is terminated; or 680 10.2.2. Inspection Objection. Deliver to Seller a written description of any unsatisfactory physical 681 condition that Buyer requires Seller to correct. 682 683 Buyer shall have the Right to Terminate under § 25.1, on or before Inspection Objection Deadline (§ 3), 684 based on any unsatisfactory physical condition of the Property or Inclusions, in Buyer's sole subjective discretion. 685 10.3. Inspection Resolution Deadline. If an Inspection Objection is received by Seller, on or before 686 8$7 Inspection Objection Deadline (§ 3),and if Buyer and Seller have not agreed in writing to a settlement thereof on 688 or before Inspection Resolution Deadline (§ 3), this Contract shall terminate on Inspection Resolution 689 Deadline (§ 3), unless Seller receives Buyer's written withdrawal of the Inspection Objection before such 690 691 termination, i.e., on or before expiration of Inspection Resolution Deadline (§ 3). 692 10.4. Damage, Liens and Indemnity. Buyer, except as otherwise provided in this Contract or other 693 written agreement between the parties, is responsible for payment for all inspections, tests, surveys, engineering 694 695 reports, or any other work performed at Buyer's request (Work) and shall pay for any damage that occurs to the 696 Property and Inclusions as a result of such Work. Buyer shall not permit claims or liens of any kind against the 697 Property for Work performed on the Property -at Buyer's request. Buyer agrees to indemnify, protect and hold 698 699 Seller harmless from and against any liability, damage, cost or expense incurred by Seller and caused by any 700 such Work, claim, or lien. This indemnity includes Seller's right to recover all costs and expenses incurred by 701 Seller to defend against any such liability, damage, cost or expense, or to enforce this section, including Seller's 702 703 reasonable attorney fees, legal fees and expenses. The provisions of this section shall survive the termination of 704 this Contract. 705 10.5. Insurability. Buyer shall have the right to review and object to the availability, terms and conditions 706 707 of and premium for property insurance (Property Insurance). Buyer shall have the Right to Terminate under § 25.1, 708 on or before Property Insurance Objection Deadline (§ 3'), based on any unsatisfactory provision of the 709 Property Insurance, in Buyer's sole subjective discretion. 710 711 10.6. Due Diligence Documents. Seller agrees to deliver copies of the following documents and 712 information pertaining to the Property (Due Diligence Documents) to Buyer on or before Due Diligence 713 Documents Delivery Deadline(§ 3) to the extent such Due Diligence Documents exist and are in Seller's 714 715 possession: 716 10.6.1. All current leases, including any amendments or other occupancy agreements, pertaining 717 to the Property (Leases). 718 719 10.6.2. Other documents and information: 720 721 722 10.7. Due Diligence Documents Conditions. Buyer shall have the right to review and object to Due 723 Diligence Documents, in Buyer's sole subjective discretion, or Seller's failure to deliver to Buyer all Due Diligence 724 Documents. Buyer shall also have the unilateral right to waive any condition herein. 725 726 10.7.1. Due Diligence Documents Objection. Buyer shall have the Right to Terminate under § 727 25.1, on or before Due Diligence Documents Objection Deadline (§ A based on any unsatisfactory matter 728 with the Due Diligence Documents, in Buyer's sole subjective °discretion. If, however, Due Diligence Documents 729 730 are not timely delivered under § 10.6, or if Seller fails to deliver all Due Diligence Documents to Buyer, then Buyer 731 shall have the Right to Terminate under § 25.1, on or before the earlier of ten days after Due Diligence 732 Documents Objection Deadline (§ 3) or Closing. 733 734 10.8. Buyer Disclosure. Buyer represents that Buyer ❑Does ❑Does Not need to sell and close a 735 property to complete this transaction. 736 737 Note: Any property sale contingency should appear in Additional Provisions (§ 30). 738 10.9. Source of Potable Water (Residential Land and Residential Improvements Only). Buyer 739 ❑Does ❑Does Not acknowledge receipt of a copy of Seller's Property Disclosure or Source of 740 741 Water Addendum disclosing the source of potable water for the Property. Buyer ❑Does ❑Does Not 742 acknowledge receipt of a copy of the current well permit. ❑ There is No Well. Note to Buyer: SOME WATER 743 PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE GROUND WATER. YOU MAY WISH TO 744 745 CONTACT YOUR PROVIDER (OR INVESTIGATE THE DESCRIBED SOURCE) TO DETERMINE THE LONG - 746 TERM SUFFICIENCY OF THE PROVIDER'S WATER SUPPLIES. 747 10.10. Carbon Monoxide Alarms. Note: If the improvements on the Property have a fuel —fired 748 749 heater or appliance, a fireplace, or an attached garage and include one or more rooms lawfully used for sleeping CBS I - 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 9 of 15 CTMeContracts.c6n1 - ©2012 CTM Software Corp. 750 purposes (Bedroom), the parties acknowledge that Colorado law requires that Seller assure the Property has an 751 operational carbon monoxide alarm installed within fifteen feet of the entrance to each Bedroom or in a location as 753 required by the applicable building code. 754 10.11. Lead —Based Paint. Unless exempt, if the improvements on the Property include one or 755 more residential dwellings for which a building permit was issued prior to January 1, 1978, this Contract shall be 756 757 void unless (1) a completed Lead —Based Paint Disclosure (Sales) form is signed by Seller, the required real 758 estate licensees and Buyer, and (2) Seller receives the completed and fully executed form prior to the time when 759 this Contract is signed by all parties. Buyer acknowledges timely receipt of a completed Lead —Based Paint 760 761 Disclosure (Sales) form signed by Seller and the real estate licensees. 762 10.12. Methamphetamine Disclosure. If Seller knows that methamphetamine was ever 763 manufactured, processed, cooked, disposed of, used or stored at the Property, Seller is required to disclose such 764 765 fact. No disclosure is required if the Property was remediated in accordance with state standards and other 766 requirements are fulfilled pursuant to § 25- 18.5 -102, C.R.S. Buyer further acknowledges that Buyer has the 767 right to engage a certified hygienist or industrial hygienist to test whether the Property has ever been used as a 768 769 methamphetamine laboratory. Buyer shall have the Right to Terminate under § 25.1, upon Seller's receipt of 770 Buyer's written notice to terminate, notwithstanding any other provision of this Contract, based on Buyer's test 771 results that indicate the Property has been contaminated with methamphetamine, but has not been remediated to 772 773 meet the standards established by rules of the State Board of Health promulgated pursuant to § 25- 18.5 -102, 774 C.R.S. Buyer shall promptly give written notice to Seller of the results of the test. 775 776 777 11. COLORADO FORECLOSURE PROTECTION ACT. The Colorado Foreclosure Protection Act (Act) 778 generally applies if: (1) the Property is residential, (2) Seller resides in the Property as Seller's principal residence, 779 (3) Buyer's purpose in purchase of the Property is not to use the Property as Buyer's personal residence, and (4) 780 781 the Property is in foreclosure or Buyer has notice that any loan secured by the Property is at least thirty days 782 delinquent or in default. If the transaction is a Short Sale transaction and a Short Sale Addendum is part of this 783 Contract, the Act does not apply. Each party is further advised to consult an attorney. 784 785 786 CLOSING PROVISIONS 787 788 790 12. CLOSING DOCUMENTS, INSTRUCTIONS AND CLOSING. 791 12.1. Closing Documents and Closing Information. Seller and Buyer shall cooperate with the Closing 792 Company to enable the Closing Company to prepare and deliver documents required for Closing to Buyer and 793 Seller and their designees. If Buyer is obtaining a new loan to purchase the Property, Buyer acknowledges 794 795 Buyer's lender shall be required to provide the Closing Company in a timely manner all required loan documents 796 and financial information concerning Buyer's new loan. Buyer and Seller will furnish any additional information and 797 documents required by Closing Company that will be necessary to complete this transaction. Buyer and Seller 799 shall sign and complete all customary or reasonably required documents at or before Closing. 800 12.2. Closing Instructions. Buyer and Seller agree to execute the Colorado Real Estate Commission's 8o1 Closing Instructions. Such Closing Instructions ❑Are ❑Are Not executed with this Contract. Upon mutual 802 803 execution, ❑Seller ❑Buyer shall deliver such Closing Instructions to the Closing Company. 804 12.3. Closing. Delivery of deed from Seller to Buyer shall be at closing (Closing). Closing shall be on the 805 806 date specified as the Closing Date (§ 3) or by mutual agreement at an earlier date. The hour and place of Closing 807 shall be as designated by 808 12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs, quality, and extent of 809 810 service vary �between different settlement service providers ( e. 9•, attorneys, lenders, inspectors and title 811 companies). d 812 813 13. TRANSFER OF TITLE. Subject to tender of payment at Closing as required herein and compliance b 814 1 P Y 9 q P� Y 815 Buyer with the other terms and provisions hereof, Seller shall execute and deliver a good and sufficient 816 817 deed to Buyer, at Closing, conveying the Property free and clear of all taxes except 818 the general taxes for the year of Closing. Except as provided herein, title shall be conveyed free and clear of all 819 liens, including any governmental liens for special improvements installed as of the date of Buyer's signature 821 821 hereon, whether assessed or not. Title shall be conveyed subject to: 822 13.1. Those specific Exceptions described by reference to recorded documents as reflected in the 823 Title Documents accepted by Buyer in accordance with Record Title Matters (§ 8.1), 824 825 13.2. Distribution utility easements (including cable TV), 826 13.3. Those specifically described rights of third parties not shown by the public records of which 827 Buyer has actual knowledge and which were accepted by Buyer in accordance with Off-Record Title Matters 828. 829 (§ 8.2) and Current Survey Review (§ 9), 830 13.4. Inclusion of the Property within any special taxing district, and 831 832 13.5. Other 833 CBS1 -10 -1 I. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 10 of 15 CTMeContracts.com - ©2012 CTM Software Corp. 834 14. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be paid at or before 835 836 Closing from the proceeds of this transaction or from any other source. 837 839 15. CLOSING COSTS, CLOSING FEE, ASSOCIATION FEES AND TAXES. 840 15.1. Closing Costs. Buyer and Seller shall pay, in Good Funds, their respective closing costs and 841 all other items required to be paid at Closing, except as otherwise provided herein. 842 843 15.2. Closing Services Fee. The fee for real estate closing services be paid at Closing by 844 ❑ Buyer ❑ Seller ❑ One -Half by Buyer and One -Half by Seller 846. ❑ Other 847 15.3. Status Letter and Transfer Fees. Any fees incident to the issuance of Association's 848 849 statement of assessments (Status Letter) shall be paid by ❑Buyer ❑Seller ❑One -Half by Buyer and 850 One -Half by Seller. ❑None. Any transfer fees assessed by the Association including, but not limited to, any 851 record change fee, regardless of name or title of such fee (Association's Transfer Fee) shall be paid by ❑ 852 853 Buyer ❑ Seller ❑ One -Half by Buyer and One -Half by Seller ❑None. 854 15.4. Local Transfer Tax. ❑ The Local Transfer Tax of % of the Purchase Price 855 shall be paid at Closing b ❑ Buyer ❑ Seller ❑ One -Half b Buyer and One -Half b Seller. ❑None. 856. 9 Y Y Y Y 857 15.5. Private Transfer Fee. Private transfer fees and other fees due to a transfer of the Property, 858 payable at Closing, such as community association fees, developer fees and foundation fees, shall be paid at 859 860 Closing by ❑Buyer ❑Seller ❑One -Half by Buyer and One -Half by Seller ❑None. 661 15.6. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction 862 863 shall be paid when due by ❑ Buyer ❑ Seller El One-Half by Buyer and One-Half-by Seller. ❑None. 864 865 16. PRORATIONS. The following shall be prorated to Closing Date (§ 3), except as otherwise provided: 866 867 16.1. Taxes. Personal property taxes, if an Y. special taxing district assessments, if any, and general 868 real estate taxes for the year of Closing, based on ❑ Taxes for the Calendar Year Immediately Preceding 870 Closing El Most Recent Mill Levy and Most Recent Assessed Valuation, adjusted by any applicable 870 871 qualifying seniors property tax exemption, or ❑ Other 872 16.2. Rents. Rents based on ❑ Rents Actually Received LJAccrued. At Closing, Seller shall 873 transfer or credit to Buyer the security deposits for all Leases assigned, or an remainder after lawful deductions, 874 Y Y P 9 Y 875 and notify all tenants in writing of such transfer and of the transferee's name and address. Seller shall assign to 876 Buyer all Leases in effect at Closing and Buyer shall assume Seller's obligations under such Leases. 877 9 878 16.3. Association Assessments. Current regular Association assessments and dues Association ' 879 Assessments) paid in advance shall be credited to Seller at Closing. Cash reserves held out of the regular 880 Association Assessments for deferred maintenance by the Association shall not be credited to Seller except as 882 may be otherwise provided by the Governing Documents. Buyer acknowledges that Buyer may be obligated to pay 883 the Association, at Closing, an amount for reserves or working capital. Any special assessment assessed prior to 884 Closing Date (§ 3)1by the Association shall be the obligation of ❑Buyer ❑Seller . Except however, any 885 886 special assessment by the Association for improvements that have been installed as of the date of Buyer's 887 signature hereon, whether assessed prior to or after Closing, shall be the obligation of Seller. Seller represents 888 889 that the Association Assessments are currently payable at $ per and that there are no 890 unpaid regular or special assessments against the Property except the current regular assessments and . Such 891 assessments are subject to change as provided in the Governing Documents. Seller agrees to promptly request 892 893 the Association to deliver to Buyer before Closing Date (§ 3) a current Status Letter. 894 16.4. Other Prorations. Water and sewer charges, interest on continuing loan, and . 895 16.5. Final Settlement. Unless otherwise agreed in writing, these�prorations shall be final. 896 897 898 17... POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date (§ 3) at 899 Possession Time (§ 3), subject to the following Leases or tenancies: 900 901 902 If Seller, after Closing, fails to deliver possession as specified, Seller shall be subject to eviction and shall be 903 904 additionally liable to Buyer for payment of $ per day (or any part of a day notwithstanding 9os § 18.1) from Possession Date (§ 3) and Possession Time (§ 3) until possession is delivered. 906 Buyer ❑ Does ❑ Does Not represent that Buyer will occupy the Property as Buyer's principal residence. 907 908 909 GENERAL PROVISIONS 910 911 912 18. DAY; COMPUTATION OF PERIOD OF DAYS, DEADLINE. 913 18.1. Day. As used in this Contract, the term "day" shall mean the entire day ending at 11:59 p.m., United 914 915 States Mountain Time (Standard or Daylight Savings as applicable). 916 18.2. Computation of Period of Days, Deadline. In computing a period of days, when the ending date CBS]-10-11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 11 of 15 CTMeContracts.com - ©2012 CTN1 Software Corp. 917 is not specified, the first day is excluded and the last day is included, e.g., three days after MEC. If any deadline 918 919 falls on a Saturday, Sunday or federal or Colorado state holiday (Holiday), such deadline ❑ Shall ❑ Shall Not 920 be extended to the next day that is not a Saturday, Sunday or Holiday. Should neither box be checked, the 921 922 deadline shall not be extended. 923 924 19. CAUSES OF LOSS, INSURANCE; CONDITION OF, DAMAGE TO PROPERTY AND INCLUSIONS AND 925 926 WALK— THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both shall be 927 delivered in the condition existing as of the date of this Contract, ordinary wear and tear excepted. 928 19.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other 929 930 perils or causes of loss prior to Closing. in an amount of not more than ten percent of the total Purchase Price 931 (Property Damage), Seller shall be obliated to repair the same before Closing Date (§ 3). In the event such 932 damage is not repaired within said time or if the damage exceeds such sum, this Contract may be terminated at 933 934 the option of Buyer. Buyer shall have the Right to Terminate under § 25.1, on or before Closing Date (§ 3), based 935 on any Property Damage not repaired before Closing Date (§ 3). Should Buyer elect to carry out this Contract 936 despite such Property Damage, Buyer shall be entitled to a credit at Closing for all insurance proceeds that were 937 938 received by Seller (but not the Association, if any) resulting from such damage to the Property and Inclusions, plus 939 the amount of any deductible provided for in such insurance policy. Such credit shall not exceed the Purchase 940 Price. In the event Seller has not received such insurance proceeds prior to Closing, the parties may agree to 941 942 extend the Closing Date (§ 3) or, at the option of Buyer, Seller shall assign such proceeds at Closing, plus credit 943 Buyer the amount of any deductible provided for in such insurance policy, but not to exceed the total Purchase 044 Price. 945 946 19.2. Damage, Inclusions and Services. Should any Inclusion or service (including utilities and 947 communication services), systems and components of the Property, e.g., heating or plumbing, fail or be damaged 948 between the date of this Contract and Closing or possession, whichever shall be earlier, then Seller shall be liable 949 950 for the repair or replacement of such Inclusion, service, system, component or fixture of the Property with a unit of 951 similar size, age and quality, or an equivalent credit, but only to the extent that the maintenance or replacement of 952 such Inclusion, service, system, component or fixture is not the responsibility of the Association, if any, less any 953 954 insurance proceeds received by Buyer covering such repair or replacement. Seller and Buyer are aware of the 955 existence of pre —owned home warranty programs that may be purchased and may cover the repair or 956 replacement of such Inclusions. 957 958 19.3. Condemnation. In the event Seller receives actual notice prior to Closing that a pending 959 condemnation action may result in a taking of all or part of the Property or Inclusions, Seller shall promptly notify 960 Buyer, in writing, of such condemnation action. Buyer shall have the Right to Terminate under § 25.1, on or before 961 962 Closing Date (§ 3), based on such condemnation action, in Buyer's sole subjective discretion. Should Buyer elect 963 to consummate this Contract despite such diminution of value to the Property and Inclusions, Buyer shall be 964 entitled to a credit at Closing for all condemnation proceeds awarded to Seller for the diminution in the value of the 965 966 Property or Inclusions but such credit shall not include relocation benefits or expenses, or exceed the Purchase 967 Price. 968 19.4. Walk— Through and Verification of Condition. Buyer, upon reasonable notice, shall have the 969 970 right to walk through the Property prior to Closing to verify.that the physical condition of the Property and 971 Inclusions complies with this Contract. 972 973 974 20. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Buyer and Seller 975 acknowledge that the respective broker has advised that this document has important legal consequences and 976 has recommended the examination of title and consultation with legal and tax or other counsel before signing this 977 978 Contract. , 979 980 21. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence hereof. If any note or check 981 982. received as Earnest Money hereunder or any other payment due hereunder is not paid, honored or tendered when 983 due, or if any obligation hereunder is not performed or waived as herein provided, there shall be the following 984 remedies: 985 986 21.1. If Buyer is in Default: 987 ❑ 21.1.1. Specific Performance. Seller may elect to treat this Contract as canceled, in which 988 case all Earnest Money (whether or not paid by Buyer) shall be paid to Seller and retained by Seller; and Seller 989 may recover such damages as may be proper; or Seller may elect to treat this Contract as being in full force and 990 Y 9 Y P P Y 9 991 effect and Seller shall have the right to specific performance or damages, or both. 992 21.1.2. Liquidated Damages, Applicable. This § 21.1.2 shall apply unless the box in § 21.1.1. 993 is checked. All Earnest Money whether or not aid b Buyer) shall be aid to Seller, and retained b Seller. Both 994 Y( P Y Y) P Y 995 parties shall thereafter be released from all obligations hereunder. It is agreed that the Earnest Money specified in 996 § 4.1 is LIQUIDATED DAMAGES, and not a penalty, which amount the parties agree is fair and reasonable and 997 as provided in 10.4, 22, 23 and 24 said payment of Earnest Money shall be SELLER'S SOLE AND 998 (except P §§ ). P Y Y 999 ONLY REMEDY for Buyer's failure to perform the obligations of this Contract. Seller expressly waives the CBS1 -10 -1 1. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 12 of 15 CTMeContracts.co n - ©2012 CTM Software Corp. 1000 remedies of specific performance and additional damages. 1001 1002 Y y ma Buyer 21.2. If Seller is in Default: Bu elect to treat this Contract as canceled, in which case all 1003 Earnest Money received hereunder shall be returned and Buyer may recover such damages as may be proper, or 1004 Buyer may elect to treat this Contract as being in full force and effect and Buyer shall have the right to specific 1005 performance or damages, or both. 1006 P g 1007 1008 22. LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of 1019 an arbitration or litigation relating to this Contract, prior to or after Closing Date 3 the arbitrator or court shall 1010 Y 9 9 P 9 (§ ), loll award to the prevailing party all reasonable costs and expenses, including attorney fees, legal fees and expenses. 1012 1013 1014 23. MEDIATION. If a dispute arises relating to this Contract, prior to or after Closing, and is not resolved, the 1015 parties shall first proceed in good faith to submit the matter to mediation., Mediation is a process in which the 1016 parties meet with an impartial person who helps to resolve the dispute informally and confidentially. Mediators 1017 cannot impose binding decisions. The parties to the dispute must agree, in writing, an settlement is loss P 9 P P 9 9. Y 1o19 binding. The parties wi ►I jointly appoint an acceptable mediator and will share equally in the cost of such 1020 mediation, The mediation, unless otherwise agreed, shall terminate in the event the entire dispute is not resolved 1021 within thirty days of the date written notice requesting mediation is delivered b one art to the other at the 1022 Y Y 4 9 Y party 1o2o party's last known address. This section shall not alter any date in this Contract, unless otherwise agreed. 1024 1025 1026 24. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder shall release 1027 the Earnest Money as directed by written mutual instructions, signed by both Buyer and Seller. In the event of any 1028 controversy regarding the Earnest Money (notwithstanding any termination of this Contract), Earnest Money 1029 1030 Holder shall not be required to take any action. Earnest Money Holder, at its option and sole subjective discretion, 1031 may (1) await any proceeding, (2) interplead all parties and deposit Earnest Money into a court of competent 1032 jurisdiction and shall recover court costs and reasonable attorney and legal fees, or (3) provide notice to Buyer and 1033 1034 Seller that unless Earnest Money Holder receives a copy of the Summons and Complaint or Claim (between Buyer 1035 and Seller) containing the case number of the lawsuit (Lawsuit) within one hundred twenty days of Earnest Money 1036 Holder's notice to the parties, Earnest Money Holder shall be authorized to return the Earnest Money to Buyer. In 1037 1038 the event Earnest Money Holder does receive a copy of the Lawsuit, and has not interpled the monies at the time 1039 of any Order, Earnest Money Holder shall disburse the Earnest Money pursuant to the Order of the Court. The 1040 parties reaffirm the obligation of Mediation (§ 23). The provisions of this § 24 apply only if the Earnest Money 1041 Holder is one of the Brokerage Firms named in 33 or 34. 1042 g § § 1043 1044 25. TERMINATION. 1045 1046 25.1. Right to Terminate. If a party has a right to terminate, as provided in this Contract (Right to 1047 Terminate), the termination shall be effective upon the other party's receipt of a written notice to terminate (Notice 1048 to Terminate), provided such written notice was received on or before the applicable deadline specified in this 1049 1050 Contract. If the Notice to Terminate is not received on or before the specified deadline, the party with the Right to 1051 Terminate shall have accepted the specified matter, document or condition as satisfactory and waived the Right to 1052 Terminate under such provision. 1053 1054 25.2. Effect of Termination. In the event this Contract is terminated, all Earnest Money received 1055 hereunder shall be returned and the parties shall be relieved of all obligations hereunder, subject to §§ 10.4, 22, 23 1056 and 24. 1057 1058 1059 26. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL. This Contract, its exhibits and specified addenda, 1060 constitute the entire agreement between the parties relating to the subject hereof, and any prior agreements 1061 pertaining thereto, whether oral or written, have been merged and integrated into this Contract. No subsequent 1062 P 9 9 9 q 1063 modification of any of the terms of this Contract shall be valid, binding upon the parties, or enforceable unless 1064 made in writing and signed by the parties. Any obligation in this Contract that, by its terms, is intended to be 1065 performed after termination or. Closing shall survive the same. 1066 P g 1067 1068 27, NOTICE, DELIVERY, AND CHOICE OF LAW. 1069 1070 27,1. Physical Delivery. All notices must be in writing, except as provided in § 27.2. Any document, 1071 including a signed document or notice, from or on behalf of Seller, and delivered to Buyer shall be effective when 1072 physically received by Buyer, any signatory on behalf of Buyer, any named individual of Buyer, any representative 1073 of Buyer, or Brokerage Firm of Broker working with Buyer (except for delivery, after Closin 9. ofthe notice 1074 1075 requesting mediation described in § 23) and except as provided in § 27.2. Any document, including a signed 1076 document or notice, from or on behalf of Buyer, and delivered to Seller shall be effective when physically received 1077 b Seller, an signatory on behalf of Seller, an named individual of Seller, an representative of Seller, or 1078 Y Y 9 rY Y Y P 1079 Brokerage Firm of Broker working with Seller (except for delivery, after Closing, of the notice requesting mediation 1080 described in § 23) and except as provided in § 27.2. 1081 1082 27.2• Electronic Delivery. As an alternative to physical delivery, any document, including any signed 1083 document or written notice, may be delivered in electronic form only by the, following indicated methods: CBS]- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 13 of 15 CTMeContracts.com - 02012 CTM Software Corp. 1084 ❑ Facsimile ❑ E -mail ❑ Internet ❑ No Electronic Delivery. If the box "No Electronic Delivery" is 1085 checked, this 27.2 shall not be applicable and 27.1 shall govern notice and delivery. Documents with original 1086 § PP• § 9 ry• 1087 signatures shall be provided upon request of any party. 1088 27,3. Choice of Law. This Contract and all disputes arising hereunder shall be governed by and construed logo in accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a 1090 PP 9 1091 contract in Colorado for property located in Colorado. 1092 1093 1094 28 NOTICE OF ACCEPTANCE , COUNTERPARTS. This proposal shall expire unless accepted in writing, by 1095 Buyer and Seller, as evidenced by their signatures below, and the offering party receives notice of such 1096 acceptance pursuant to § 27 on or before Acceptance Deadline Date (§ 3) and Acceptance Deadline Time (§ . 1097 3 If accepted, this document shall become a contract between Seller and Buyer. A co of this document may 1098 )• P Y PY Y 1099 be executed by each party, separately, and when each party has executed a copy thereof, such copies taken 1100 together shall be deemed to be a full and complete contract between the parties. 1101 1102 1103 29. GOOD FAITH. Buyer and Seller acknowledge that each party has an obligation to act in good faith including, 1104 but not limited to, exercising the rights and obligations set forth in the provisions of Financing Conditions and 1105 Obligations 5 Record Title and Off — Record Title Matters 8 Current Survey Review 9 and 1106 9 (§ ), (§ ), Y (§ ) 1107 Property Disclosure, Inspection, Indemnity, Insurability, Due Diligence, Buyer Disclosure and Source of 1108 Water (§ 10). 1109 1110 1111 I ADDITIONAL PROVISIONS AND ATTACHMENTS 1112 1113 1114 30. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado 1115 Real Estate Commission.) 1116 1117 31. ATTACHMENTS. The following are a part of this Contract: 1118 1119 Note: The following disclosure forms are attached. but are not a part of this Contract: 1120 1121 1122 SIGNATURES 1123 1124 1125 1126 Buyer: Date: 1127 1128 Address: 1129 1130 Phone: Fax: 1131 Electronic Address: 1132 1133 1134 1135 1136 [NOTE: If this offer is being countered or rejected, do not sign this document. Refer to § 32] 1137 1138 1139 Seller: Date: 1140 1141 1142 Address: 1143 Phone: Fax: 1144 Electronic Address: 1145 1146 1147 1148 32. COUNTER; REJECTION. This offer is ❑ Countered ❑ Rejected. 1149 Initials only of party (Buyer or Seller) who countered or rejected offer 1150 1151 JEND OF CONTRACT TO BUY AND SELL REAL ESTATE 1152 1153 1154 1155 33. BROKER'S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE. 1157 (To be completed by Broker working with Buyer) 1158 1159 1160 Broker ❑ Does ❑ Does Not acknowledge receipt of Earnest Money deposit and, while not a party to the 1161 Contract, agrees to cooperate upon request with any mediation concluded under § 23. Broker agrees that if 1162 Brokerage Firm is the Earnest Money Holder and, except as provided in § 24, if the Earnest Money has not 1163 1164 already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest 1165 Money Holder shall release the Earnest Money as directed by the written mutual instructions. Such release of CBS]- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 14 of 15 CTMeContracts.com - 02012 CTM Software Corp. 1166 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 1187 1188 1189 1190 1191 1192 1193 1194 1195 1196 1197 1198 1199 1200 1201 1202 Earnest Money shall be made within five days of Earnest Money Holder's receipt of the executed written mutual instructions, provided the Earnest Money check has cleared. Broker agrees that if Earnest Money Holder is other than the Brokerage Firm identified in § 33 or § 34, Closing Instructions signed by Buyer, Seller, and Earnest Money Holder must be obtained on or before delivery of Earnest Money to Earnest Money Holder. Broker is working with Buyer as a ❑ Buyer's Agent ❑ Seller's Agent ❑ Transaction- Broker in this transaction. ❑ This is a Change of Status. Brokerage Firm's compensation or commission is to be paid by ❑ Listing Brokerage Firm ❑ Buyer ❑ Other Brokerage Firm's Name: BJ"ADAMS AND COMPANY V1812012 Broker's Name: Andrew Ernemann Address: 534 E. Hopkins Avenue Aspen, CO 81611 Ph: 970 - 922 -2111 Fax: 970 - 920 -2927 Email: andrew@bjac.net 34. BROKER'S ACKNOWLEDGMENTS AND COMPENSATION DISCLOSURE. (To be completed by Broker working with Seller) Broker ❑ Does ❑ Does Not acknowledge receipt of Earnest Money deposit and, while not a party to the Contract, agrees to cooperate upon request with any mediation concluded under § 23. Broker agrees that if Brokerage Firm is the Earnest Money Holder and, except as provided in § 24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate or other written notice of termination, Earnest Money Holder shall release the Earnest Money as directed by the written mutual instructions. Such release of Earnest Money shall be made within five days of Earnest Money Holder's receipt of the executed written mutual instructions, provided the Earnest Money check has cleared. Broker agrees that if Earnest Money Holder is other than the Brokerage Firm identified in § 32 or § 33, Closing Instructions signed by Buyer, Seller, and Earnest Money Holder must be obtained on or before delivery of Earnest Money to Earnest Money Holder. Broker is working with the Seller as a ❑ Seller's Agent ❑ Buyer's Agent ❑ Transaction- Broker in this transaction. ❑ This is a Change of Status. Brokerage Firm's compensation or commission is to be paid by ❑ Seller ❑ Buyer ❑ Other Brokerage Firm's Name Broker Address: , Ph: Fax: Email: Date: CBS1- 30 -11. CONTRACT TO BUY AND SELL REAL ESTATE (RESIDENTIAL) CTM eContracts - 4j2011 CTM Software Corp. CBS]- 10 -11. CONTRACT TO BUY AND SELL REAL ESTATE - Residential Page 15 of 15 CTMeContracts.com - ©2012 CTM Software Corp. /A A MEMORANDUM TO: Mayor and Council FROM: Scott Chism, Planning & Construction Manager Stephen Ellsperman, Director of Parks and Open Space THROUGH: Jeff Woods, Manager Parks and Recreation DATE OF MEMO: May 21, 2012 MEETING DATE: May 29, 2012 RE: Rio Grande Park Pedestrian Bridge #1 SUMMARY: At this time we are requesting: • Council authorization for a $240.00 change order increase in value resulting in a $25,140.00 Supply Procurement Agreement value for the Rio Grande Pedestrian Bridge #1 project; PREVIOUS COUNCIL ACTION The last Council Action specific to Rio Grande Park occurred on April 16th, 2012, when Council reviewed and approved the proposed public restroom building and development of a non - potable irrigation system infrastructure. BACKGROUND: Bids were solicited in November, 2011 for fabrication and supply of a 50' -0" long x 10' -0" wide timber pedestrian bridge planned for Rio Grande Park within the John Denver Sanctuary. Three bids were received and a Supply Procurement Agreement was awarded to Western Wood Structures, Inc. with a value of $24,900.00 in early December, 2011 and approved by the. City Manager, per the City's purchasing code. The other two bids received significantly' exceeded the bid price submitted by Western Wood Structures, Inc. During the shop drawing development process in January, 2012, the structural engineer consulting to the City of Aspen Parks Department for the project identified some minor structural component additions necessary for the bridge fabrication. The value of the additions was $240.00. Staff prepared and approved a change order in the value of $240.00. (Attachment B) The $240.00 change order value increases the Supply Procurement Agreement value to $25,140.00, which requires Council review and approval based on the City's procurement code. DISCUSSION: The Vendor, Western Wood Structures, Inc. has delivered the subject bridge on time exactly per the contract requirements and shop drawings. The relationship between the vendor and the City of Aspen Parks Department is positive and staff believed the small change order request was justified based on dialogue between staff, Vendor and structural engineer to better protect the public's health, safety and welfare. Page 1 of 2 f FINANCIAL IMPLICATIONS: The project budget for the comprehensive Phase 2 Rio Grande Park environmental enhancements can sustain a $240.00 additional cost for additional structural components to the Pedestrian Bridge 41 at Rio Grande Park. ENVIRONMENTAL IMPLICATIONS: There are no significant environmental implications with proceeding with the supply and installation of the additional recommended structural components for the subject pedestrian bridge. RECOMMENDATION: Staff suggests Council approval of the $25,140.00 modified Supply Procurement Agreement for the Rio Grande Park Pedestrian Bridge #1 with Western Wood Structures, Inc. ALTERNATIVES: City Council could choose not to provide direction to staff to proceed with the $240.00 increase to the Supply Procurement Agreement for the Rio Grande Park Pedestrian Bridge #1. Staff would be required to re- negotiate a reduced cost from the Vendor for materials provided per the structural engineer's recommendations to allow a Supply Procurement Agreement value of less than $25,000.00. CITY MANAGER COMMENTS: ATTACHMENTS: A. Supply Procurement Agreement: Western Wood Structures, Inc as Vendor B Change Order #1: increase in value of $240.00 Page 2 of 2 A RESOLUTION # 5 Y (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR RIO GRANDE PEDESTRIAN BRIDGE CONSTSRUCTION AND INSTALLATION BETWEEN THE CITY OF ASPEN AND WESTERN WOOD STRUCTURES INC. 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 Rio Grande pedestrian bridge construction and installation, between the City of Aspen and Western Wood Structures 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 Rio Grande pedestrian bridge construction and installation, between the City of Aspen and Western Wood Structures 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 29th day of May 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, May 29, 2012. Kathryn S. Koch, City Clerk PROCUREMENT CONTRACT ROUTING SLIP AND CHECK LIST Instructions: This form should be completed at each step of the procurement process and should follow each request for review or approval. Contracts under $5,000 require only Department Head approval. Contracts over $5,000 require City Manager approval. They do not require competitive bids but require documentation of source selection process. Contracts over $10,000 require City Attorney and City Manager approval. Competitive bidding process is required. Contracts over $25,000 require City Council approval. Procurement Description: /"/ 0 &ftWr A"f�: M I Budget estimate: S Capital Director's Review Is proposed expenditure approved in the Department's budget? Explain process for vendor selection: 040.11 Dept. Head approval of City Manager Approval if Sole Source Competitive Quotes: (Attach Quotes) Contractor/Vendor Selected: Dept. Head approval: City Attorney Review: contract documents to jW Project #: lot I- I61 Yes No SOW Finance Review S City Manager Approval: and to Vendor/Contractor tJ_11 -11 RFP or TTB Completed: 011-LM Eng. Dept. Review: % +/' : �? RFP or TTB Reviewed by City Attorney: 1 15-11 1't Advertisement r 2n6 Advertisement (Attach Advertisement) jj -b2-t1 Bid Opening: l� l�.ril5�s.I�r Z ContractorNendor Selected: l Dept. Head approval: I ALA -i I Award letter sent: (a-i a-t i 3 signed contracts returned by vendodcontractor /t; A Performance and Payment Bonds received Vsk Certificate of insurance received -15-1k Finance Department Review: If over $25,000, prepare a cover memo and resolution for City Council Approval Finance Review: City Attorney Review City Manager Approval Date City Council Approves Notice to Proceed Attachment A 555 the �fEf efl�0en CITY OF ASPEN STANDARD FORM OF AGREEMENT - 2009 SUPPLY PROCUREMENT City of Aspen Project No.: 2011 -085 AGREEMENT made as of December 2"d, in the year 2011. BETWEEN the City: Tlie'City ol' Aspen c/o Si vo l3arwiCk; C61 Yl iniu i' 130 South C��leri'�aatr�ct Ashen, Coloraclo,8I,li I 1 And the Vendor: a��'escei;it 4�'t�t>cl titrtie[ure, Inc. G/o kimie Ao diiie I TY Roo. I Jl)/20675 -'S ��? '105"' Avcmi : 'fL1zila:in: C7rc,,on 0,062, 1'Itone. -: (50.3) 6926900 Summary Description of Items to be Purchased: Contract Amount: Total: 524;900 If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. City Council Approval: Date: resolution No.: (1) 50' -0" long x 10' -0" clear width Glu -lam Timber Girder Pedestrian Bridge for installation al Rio Grande Park Exhibits appended and made a -part of this Agreement: Exhibit A: (1) 50' -0" long x 10' -0" clear width Glu -lam Timber Girder Penta Treated Pedestrian Bridge superstructure and including base shoes, steel diaphragms, rod cross bracing, deck screws, deck clips and all miscellaneous nuts and bolts. Shop drawings shall_ be included as a deliverable. All supplied Hardware shall be hot dipped galvanized: The City and Vendor agree as set forth below. 1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A appended hereto and by this reference incorporated herein as if fully set forth here for the sum set forth hereinabove. 2. Delivery. (FOB 505 Rio Grande Place. (Rio Grande Park), Aspen, Colorado 81611) (Delivery Address] _3. Contract Documents. This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties. Vendor shall describe applicable warranties which shall state as a minimum that Vendor's liability shall be limited to the obligation to repair or replace proven to have failed to meet the specification or to have been defective in quality or workmanship at the time of delivery. In no event shall Vendor have any liability for commercial loss, claims for labor, or consequential damages of any other type. 5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the'City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6. Third Parties. This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties,'except to parties to whom Vendor or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers. No waiver of default by either party of any of the terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be,performed, kept and observed by the other party. 8. Agreement Made in Colorado. The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. ' Attorney's Fees. In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 10. Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation,.review or drafting of the Agreement. 11. Certification Regarding Debarment., Suspension, Ineligibility. and Voluntary Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees, Gratuities. Kickbacks and Conflicts of Interest. (A) Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. f (B) Vendor agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (C) Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (D) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4. Recover such value from the offending parties. . 13.. Termination for Default or for Convenience of City. The sale 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. 14. Fund Availability. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City using 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. 15. City Council Approval. If this Agreement requires the City to pay an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Council of the. City of Aspen. 16. Non - Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City's municipal code, section 13 -98, pertaining to nondiscrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado. Antidiscrimination Act of 1957, as amended and other applicable state and federal laws respecting discrimination and unfair employment practices. 17. Integration and Modification. This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City . official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terns of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18. Authorized Representative. The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he /she is an authorized representative of Vendor for the purposes of executing this Agreement and that he /she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement, to be duly executed the day and year first herein written in three (3) copies, all of which, to all intents and purposes, shall be considered as the original. [SIGNATURES ON FOLLOWING PAGE] 0 FOR THE CITY OF ASPEN: Western Wood Structures. Inc. By: '%W - If - Stephen A. Turner President Title By: City Manager Western,Whod Structures, Inc PO Box 130 / 20575 SW 10Sth Ave. Tualatin, Oregon 91062 ;503) 1692 -6900 1800} S47 -5411 !`ax: (503) 592 -6434 www.woitr,tnwoodstrucuuu.com ) mil; wwsi@w=,arnwoodstructures.com Exhibit A. LINE, PROSPECT N(Jh ii313R _ 1,B-1 17 DATE 11/1412011 } R c 2 Fantli✓ F'arK Bridge ' - ff Tb - - - - - AYk�lIffY _ - ?gr- - FHq L- N.+7�ieF „k •- - Pnc;JL�v.. j ° ° City oFAspen Rio Grande Park Bridge 130 S Galena St RTtiecca Hodgson I co CO j Aspen, -CO 81611 — - I L ' 1 ''`�= SUHAAITTt,;,S 9B ooi I SrYL�iuded I :, ..� .... _ `THIS0UPT¢TI0N d600 f.'01A DAYS I FO.E: � rl1-IrrcME32WREr f ADORE SS; _ i— n SeFr 3r�,,,biti; y11JUTFD, EFI P1AhC -' y�LJ .{ . - _. .. Anal ro]nS:Nnrrra 1'3ii�3 s ADI` No Retau�a a OAC tQl)R DLSrGN;cl ..1 IiF+7?AC1Ab UFaL 5�7... OEAD lcOlQ `- .._ �. _. .bY1�0`LaAl3 '— - GCQW ENTAATM- LOAn:. - — SHFCIAlJOA05 Wig; IS R WUA (1) Girder Style Bridge Design: , Span: W out to out Width: 10' Clear Between rails Live Load: 100 psf Rail: Per Plan Drawings & Calculations stamped by CO. P.E. Lump Sum: $24,900.00 1 t I itt ' 1 West. Coast.Doucd'IasFir:.____ _..v _ As.Regutred_ ____._. Iricustnal _ Waterprnaf As`e r. ters`�J FrcrrSbr- ° Q r T4rs �A4 � S ea olnt' I1wl CERr PgE,�CS< .ASTM.A36._ Galvanized; oos ” ° ASTM A307 • +Galvanized:, Unloading nd ;Ereotlon °by,Qthzrs: • t 1 b, r1m?1 a iUI1. 4 FuLita,to A ptoivisrions of the'r'ssma of Sate set out on the revers¢ forming anv pact of &,a selttr's obligation; exceptiag only tf105a capsastly set our in `51di of:t1n shoo: wit' iddk concract. It J expressly tev eh t rug exp ly a@ d s fm conrempesaneoua or subsequent I ..inle e l.,,.i�i,�i 4It vi tb-i. t ui3.4 @tit �x..n.nM!: b [v,i�.. fl.r partisa c'especdag caaversa?toil, undstatarsdmg of agceeto at rtsil Sage my foyer. or effect to amend. alter !hr..wdck, ni „i ih m is tso vpv u v, ri, :r.'rper : di iitci:liz i,. acid no repaesrnnEioa or nic¢ify this connocz unitaa r�uced to v rieag snd signed by baeh patties . ti&NOWII rMA= F.NT- KF,.S;f:STGN' ANP) Rf.'1111t:\ wkmi-.C,OFY. HY { .;l.1NAI il"Ei. I lyTi_:, iaAil %MJirp I—IFI IM reunav _ ri mmum tv -:y. Peat ,-.evv fY� Attachment B CHANGE ORDER City of Aspen Parks and Recreation Department No. 1 PROJECT: Rio Grande Park Pedestrian Bridge #I Project DATE OF ISSUANCE: 01 -23 -2012 OWNER: City of Aspen CONTRACTOR: Western Wood Structures, Inc. OWNER's Project No. 2011 -085 You are directed to make the following changes in the Contract Documents. Description: Provide additional steel "MKS3" diaphragms per Structural Engineer recommendations. - Purpose of Change Order: Provide additional beam bracing to provide lateral support at beam bearing points to prevent structural rotation and lateral displacement. Attachments: Email documentation from Jamie Agidius to Scott Chism, detailing costs for additional steel diaphragms. . CHANGE IN CONTRACT PRICE: Original Contract Price: $24.900.00 Previous Change Order No to No. Contract. Price prior to this Change Order $24.900.00 Net Increase (decrease) of this Change Order +$240.00 Contract Price with all approved Change Orders $25.140.00 by: by: Project Manager CHANGE IN CONTRACT TIME: Original Contract Time: days or date Net Change from previous Change Orders days Contract Time prior to this Change Order days or date Net Increase (decrease) of this Change Order +0 days Contract Time with all approved Change Orders deliver by Apri124, 2012 days or date APPROVED: by: Af 9,14 v ` . , Scott Chism From: Jamie Agidius B agidius @westernwoodstructures.com] •:'Sent: Wednesday, January 18, 2012 9:07 AM To: Scott Chism Subject: RE: Aspen Rio Grande Pedestrian Bridge #1 shop drawings Scott, Thank you.for covering the cost of the. additional diaphragms. You are correct, my apologies. We will update our drawings to reflect a 1' -9" elevation change as shown on your October 3, 2011 drawing. From: Scott Chism f mailto :Scott.Chism @ci.aspen.co.usl Sent: Wednesday, January 18, 2012 7:37 AM To: Jamie Agidius Subject: Aspen Rio Grande Pedestrian Bridge #1 shop drawings Jamie, 0 -6 tr, p.;} 524 -ndditinniI for the six, (6)rcr,..,"' ^Sts a" 0 1;1" ' u 15, but I don't think the City should be asked to payb$280 for the corrected detailing of the posts and baluster connections to the glulams for the reason stated below: The subject of the post and baluster correction was made evident in drawing information presented at the time of C°proposal preparation (two occasions for this project). I've attached an 'optimized' (smaller) file size version of the section that I had made available you prior to you preparing your cost proposal, which definitely illustrates that the bridge is not level end to end. We discussed the elevation differences between the bottom of the bridge structure and the anticipated high water level that could occur under the bridge, so I presumed you had reviewed this section drawing. The section also shows the difference in height configuration of the posts and balusters, which was correctly shown in the shop drawings. As a result, I'd like to see a corrected version of the shop drawings that give us assurance that when we receive and . install the bridge, the posts and balusters will not be out of vertical plumb on a sloped bridge. Scott Chism, LLA CO #222, GRP Project Manager /Parks Planner City of Aspen Parks Department 970 -429 -2029 ph. 970 - 920 -5128 fx. From: Jamie Agidius [ma ! Ito: iaeid ius@westernwoodstructures.coml Sent: Monday, January 16, 201210:31 AM To: Scott Chism Subject: Rio Grande Scott, Just received your comments for the Rio Grande Park Bridge, thank you. Due to the elevation difference we will need to redraw the bridge. and plumb the posts and balusters, this will take 4 hours plus, we will need to add additional diaphragms at the end of the bridge, per the engineers request. The cost breakdown is as follows: Detailing: 4 hours @ $70 /hour Diaphragms: 6 ea. @ $40 /ea. Please contact me tomorrow or shoot me an email with your approval and will make the necessary changes and send you final prints. Regards, Jamie Agidius - Bridge Sales & Design Western Wood Structures, Inc. PO Box 130 Tualatin, OR 97062 (800) 547 -5411 PH:(503) 692 -6900 FX:(503) 692 -6434 Working Wonders With Wood BLOG 9 �Ur WESTERN J=1'�UV;1700D STRUCTURES www.westernwoodstructures.com CONFIDENTIALITY WARNING: This communication contains confidential information intended only for the person(s) to whom it is addressed. If you have received this message in error, please notify the sender immediately, and delete this document. 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Email secured by Check Point YI h % m THE CITY of ASPEN MEMORANDUM TO: Mayor and City Council FROM: Chris Everson, Affordable Housing Project Manager THRU: Scott Miller, Capital Asset Director DATE OF MEMO: May 21, 2012 MEETING DATE: May 29, 2012 RE: 2012 Burlingame Phase IIA Al Construction Insurance Contract REQUEST OF COUNCIL: Staff seeks approval of an amendment to the existing contract with Lockton Companies LLC for the planned buyout of insurance coverage for the Owner Controlled Insurance Program (OCIP) for the Burlingame Ranch Phase II Access /Infrastructure construction in 2012. PREVIOUS COUNCIL ACTION: At the March 6, 2012 City Council work session, Council approved the go -ahead of the 2012 Burlingame Phase IIA Access /Infrastructure construction project scheduled for April 30 through November 30 of 2012. At the regular City Council meeting on April 23, 2012, Council approved consent of the initial contract in the amount of $8,000.00 with Lockton Companies LLC for the procurement of insurance coverage for the Owner Controlled Insurance Program (OCIP) for Burlingame Ranch Phase II Access /Infrastructure construction in 2012. BACKGROUND: In the April 23, 2012 memo to Council, this consent item was presented with the understanding that it is first necessary for the City to procure the insurance procurement services and then procure the insurance policies via a contract amendment. The item was illustrated in a table as per below: Procurement and Initial Contract Administration of for $8,000 Insurance Procurement Lockton Insurance Owner Controlled ONLY $251,184 $250,000 Insurance Program Submitted for (OCIP) consent * ** Initial professional services contract with Lockton will be for S8,000 only. Contract will be addended for actual costs when insurance contracts are finalized and accepted with insurance underwriters. DISCUSSION: Since that time, the insurance binders in the attached exhibits have been received, and coverage was put in place beginning April 30, 2012 — the first day of construction mobilization. The actual total cost of the buyout turned out to be slightly below the budgeted amount of $250,000 rather than slightly above (which had been previously anticipated). The Owner Controlled Insurance Program (OCIP) is being utilized for Burlingame Ranch Phase II construction in lieu of purchasing coverage from the general contractor since the scale of the Page 1 of 2 THE CITY OF ASPEN project allows the City of Aspen to procure higher levels of coverage for less cost. This also allows the City of Aspen to control administration of all claims which will be processed by Lockton Companies LLC. The use of OCIP programs like this is .becoming the standard for large -scale multifamily developments due to the benefits that owners can gain. FINANCIALBUDGET IMPACTS: The initial contract with Lockton Companies LLC was for $8,000.00, and the amount of proposed amendment #1 is $238,829.58 for a total revised contract value of $246.829.58. The budgeted amount was $250,000. RECOMMENDED ACTION: In order to continue insurance coverage, staff recommends approval of amendment #1 to the contract with Lockton Companies LLC in the amount of $238,829.58. CITY MANAGER COMMENTS: ATTACHMENTS: "Exhibit A ": Amendment #1 to the contract with Lockton Companies LLC Page 2 of 2 RESOLUTION # sS (Series of 2012) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR OWNER CONTROLLED INSURANCE PROGRAM BETWEEN THE CITY OF ASPEN AND LOCKTON COMPANIES LLC 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 Owner Controlled Insurance Program, between the City of Aspen and Lockton Companies LLC, 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 Owner Controlled Insurance Program, between the City of Aspen and Lockton Companies LLC, 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 29th day of May 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, May 29, 2012. Kathryn S. Koch, City Clerk J EXHIBIT A THE CITY OF ASPEN May 29, 2012 AMENDMENT #1 TO PROFESSIONAL SERVICES AGREEMENT The agreement dated April 23, 2012 between the City of Aspen and Lock-ton Companies LLC is amended May 29, 2012 per the attached insurance binders presented in EXHIBIT "A ". The contract amount is accordingly amended as follows: Initial contract amount: $8,000.00 Contract amendment #1: $238,829.58 Total Contract amount: $244,829.58 IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this amendment to the agreement: CITY OF ASPEN, COLORADO: [Sim] By: [Name] Title: Date: Approved as to form: City Attorney's Office LOCKTON _COMPANIES LLC: [Signs e] By: ' 0. [Name] Title: �(2 Date: 4 Page 1 of 1 rb S6 SS City of Aspen May 18, 2012 Burlingame Ranch Phase II Project - Infrastructure Work Owner Controlled Insurance Program (OCIP) Premium Summary Initial OCIP Contract for Burlingame Phase II Infrastructure ONLY OCIP Administration Lockton I N/A 1 509934 1 IOCIP Administration ;5,000.00 OCIP Administration Lockton N/A N/A General Liability Peer Review ;3,000.00 TOTAL __ ;8,000.00 Amendment #1 OCIP Contract for Burlingame Phase 11 Infrastructure ONLY project Name of Policy Insurer Policy Number $2,000,000 Policy Limit- Each Occurrence incid taxes, fees, terrorism $2,000,000 General Aggregate $2,000,000 Products Aggregate /Completed Operations Houston Casualty $2,000,000 Personal Injury/Advertising Injury Specific Project Wrap -Up Liability Company - Non Admitted H 12PC30065 -00 516998 $50,000 Fire Legal Liability ;96,408.00 Rating: A+ XIV Excluded Medical Payments $25,000 Deductible -Per Occurrence 25% Minimum Earned Premium at Inception Ironshore Specialty Ins. Co. Each Occurrence Wrap -Up Excess Liability Company - Non Admitted 1346600 517014 $10,000,000 $10,000,000 Aggregate Excess of the Limits shown in Underlying Limits ;104,030.00 Rating: A- XIII Section. Chartis Specialty Insurance $3,000,000 Policy Limit- Each Occurrence Contractor's Pollution Liability Company -Non Admitted CP0018426844 517030 000, 000 $3,000,000 Aggregate ;36,344.58 Rating: A XV $25,000 Each Loss wu' $7,000,000 Per job -site limit $7,000,000 Flood sublimit $7,000,000 Earthquake sublimit $7,000,000 Water Damage sublimit (other the Flood) ,000,000 000 Windstorm sublimit (other than Named) Property/ Builders Risk - Course of ACE American Insurance Transit limit Construction Company- Non Admitted I21067544001 517023 $5,047.00 Rating: A+ XV $10,000 Deductibles: $25,000 All Other Perils $25,000 Flood $25,000 Earthquake 15 Day Waiting Period Water Damage Soft Costs OCIP Administration Lockton N/A N/A Removal of General Liability Peer Review - ;3,000.00 TOTAL ;238,829.58 Amendment #1 TOTAL Revised Contract Total ;246,829.58 RYA UR SPECIALTY REVISED CONFIRMATION OF INSURANCE DATE: May 18, 2012 TO: Lockton Companies, LLC - Denver Matt Goss FROM: Terry McCann We are pleased to confirm that coverage has been bound with the carrier shown below in accordance with terms, conditions, and limitations provided by the carrier for you and your insured to review. As the Insured's representative, it is your responsibility to carefully review with the Insured all of the terms, conditions, and limitations of this Confirmation of Insurance, and to specifically reconcile with the Insured any differences between those quoted and those you requested. RT Specialty expressly disclaims any responsibility for any failure on your part to review or reconcile any such differences with the Insured. This coverage may not be bound without a fully executed brokerage agreement. Any amendments to coverage must be specifically requested in writing or by submitting a policy change request form and then approved by the Insurance Company Underwriters. Coverage cannot be affected, amended, extended or altered through the issuance of certificates of insurance. IMPORTANT NOTE: The Home State of the Named Insured shall be determined in accordance with the provisions of the Non - admitted and Reinsurance Act of 2010, 15. U.S.0 §8201, etc. ( "NRRA "), and the applicable law of the Home State governing cancellation or non - renewal of insurance shall apply to this Policy. INSURED: City of Aspen 530 E Main Street, Suite LL Aspen, CO 81611 -1948 CARRIER: Houston Casualty Company (AM Best Rating of A+ XIV) Non - Admitted COVERAGE General Liability — Occurrence FORM: CG 0001 12 07 POLICY NUMBER: H12PC30065 -00 POLICY TERM: 4/30/2012 to 4/30/2013 LIMITS: $2,000,000 Each Occurrence $2,000,000 General Aggregate $2,000,000 Products /Comp. Ops Aggregate $2,000,000 Personal Injury and Advertising Limit $50,000 Any One Fire Fire Legal Liability Excluded Medical Payments DEDUCTIBLE: $25,000 BI & PD Each occurrence Allocated Loss Expense is included within the retention R -T Specialty, LLC In California: R -T Specialty Insurance Services, LLC License #OG97516 500 W. Monroe Street, 28th Floor, Chicago, IL 60661 Phone - (312) 651 -6000 Fax - (312) 651 -6096 Page 11 I U ,(,4 REVISED CONFIRMATION OF INSURANCE RATE: Flat based on a Term estimated Exposure of 82 units PREMIUM: Premium $93,600.00 Surplus Lines Tax — CO — RT to File $2,808.00 TOTAL $96,408.00 TRIA: Terrorism has been accepted and is included in the above premium. TERMS AND CONDITIONS: - • 25% Minimum Earned Premium at inception • Premium is 100% minimum and deposit • No Flat Cancellations • Description of Operations: Wrap up- Infrastructure Work • The terms and conditions of this quote/binder may differ from specifications originally requested. • HCC Primary Casualty does not accept, review, reject or approve certificates of insurance. Any requests for amendments to coverage must be made in writing to HCC Primary Casualty. We will not amend policy conditions prior to the date of written request. • If the Earth Movement Exclusion is removed from the proposal, prior to binding, we need a letter from the geotech engineer stating that they have reviewed the final construction plans and they find the plans acceptable for the site conditions. • If the Earth Movement Exclusion is removed from the proposal, prior to binding, we need a letter from the general contractor stating that they will comply with all the written recommendations of the geotechnical engineer. • Our standard cancellation term is 30 days except 10 days for non - payment of premium. • Cancellation, Non - payment of additional premium at audit, or non - cooperation with the audit process, or failure to provide requested enrollment and 3rd party peer review documentation may result in the removal of the Extended Products - Completed Operations coverage. • Trades not allowed to be enrolled in the wrap -up: environmental remediation contractors and architects and engineers SUBJECT TO: 1. A completed and signed Acord and Supplemental Application — required within 15 days of binding 2. Signed Terrorism selection form ASAP. 5. Confirmation Wrap Administration will be handled by Lockton FORMS AND ENDORSEMENTS: 1. Policy Jacket 2. HPC 010 01 09 11 Common Policy Declarations HCC 3. IL 0017 11 98 Common Policy Conditions 4. HPC 030 02 09 11 Scheduled Forms and Endorsement R -T Specialty, LLC In California: R -T Specialty Insurance Services, LLC License #OG97516 500 W. Monroe Street, 28th Floor, Chicago, IL 60661 Phone - (312) 651 -6000 Fax - (312) 651 -6096 Page 12 RYAN TURNER REVISED CONFIRMATION OF INSURANCE 5. IL 0021 05 04 Nuclear Energy Liability Exclusion 6. HPC 03004 10 11 Service of Suit HCC COMMERCIAL GENERAL LIABILITY FORMS 1. HPC 020 02 11 11 Commercial General Liability Coverage Part Supplemental Declarations 2. CG 0001 12 07 Commercial General Liability Coverage Form - Occurrence 3. HPC 040 04 11 11 Definition of Employee Amendment 4. HPC 050 07 02 12 Exclusion - Asbestos 5. HPC 050 06 07 11 Exclusion - Arsenic 6. HPC 050 19 02 12 Exclusion - Wrap Up Cross Suits - Owner and GC Exception 7. HPC 050 03 07 11 Exclusion - Lead 8. HPC 040 06 07 11 Intellectual Property Amendment 9. HPC 050 02 02 12 Exclusion - Sulfates 10. HPC 040 08 07 11 Minimum Earned Premium and Audit Premium Endorsement (100 %, 12 months) 11. CG 2135 10 01 Exclusion - Coverage C - Medical Payments: Any Location Or Job Site 12. CG 2147 12 07 Employment - Related Practices Exclusion 13. CG 2167 12 04 Fungi or Bacteria Exclusion 14. CG 2186 12 04 Exclusion - Exterior Insulation And Finish Systems 15. CG 2196 03 05 Silica or Silica - Related Dust Exclusion 16. CG 2165 Total Pollution Exclusion with Exception for Hostile Fire and Building Equipment 17. CG 2012 05 09 Additional Insured - State of Political Subdivisions - Permits 18. CG 2018 11 85 Additional Insured - Mortgagee, Assignee Or Receiver: Any mortgagee, assignee, or receiver when you and such mortgagee, assignee, or receiver have agreed in writing in a contract or agreement that such mortgagee, assignee, or receiver be added as an additional insured on your policy. 19. HPC 040 09 01 12 Wrap up Program Change Endorsement a. Project Name: Burlingame Ranch Phase II b. Project Address: Aspen, CO 81611 (and end of Harmony Rd and immediately west of Burlingame Ranch Phase 1) c. Project Sponsor: City of Aspen d. Project Description: Site Development work 20. HPC 080 01 11 11 Deductible Liability Insurance 21. HPC 040 14 12 11 Defense Costs & Supplementary Payments Incld Within the Limits of Ins. 22. CG 2234 07 98 Exclusion - Construction Management Errors and Omissions 23. CG 2279 Exclusion - Engineers, Architects or Surveyors Professional Liability 24. CG 2301 12 04 Exclusion - Real Estate Agents Errors Or Omissions 25. HPC 050 01 02 12 Exclusion - Earth Movement 26. CG 21 53 - Designated Ongoing Operations Exclusion: Any vertical construction 27. CG 2170 01 08 Cap on Losses from Certified Acts of Terrorism 28. IL 0985 01 08 Disclosure Pursuant to Terrorism Risk Insurance Act 29. HPC 040 11 09 11 Limited Coverage - Repair Work (extension for onsite repairs after policy expiration) Upon notification from the Insured and prior to the beginning of construction other than what is listed above, we will endorse the policy with the following: - Increase the policy term no longer than 5 years in total Amend Description of Operations and form HPC 040 09 01 12 to include the following wording: Construction of 82 townhomes within 7 frame buildings (3 stories of frame over concrete pads) for R -T Specialty, LLC In California: R -T Specialty Insurance Services, LLC License #OG97516 500 W. Monroe Street, 28th Floor, Chicago, IL 60661 Phone - (312) 651 -6000 Fax - (312) 651 -6096 Page 13 SPECIALTY REVISED CONFIRMATION OF INSURANCE deed restricted city workers. - Form CG 2153 01 96 will be removed from the policy. - Additional\ Premium charged will be $200,000, plus 4% for TRIA. CONFIRMED BOUND BY: CONFIDENTIAL Terry McCann "This contract is delivered as surplus line Insurance under the 'Nonadmitted Insurance Act The Insurer Issuing this contract is not admitted In Colorado but is an approved non - admitted Insurer. There Is no protection under the provisions of the 'Colorado Insurance Guaranty Association Act." R -T Specialty, LLC In California: R -T Specialty Insurance Services, LLC License #OG97516 500 W. Monroe Street, 28th Floor, Chicago, IL 60661 Phone - (312) 651 -6000 Fax - (312) 651 -6096 Page 1'4 RYAN TURNER REVISED CONFIRMATION OF INSURANCE DATE: May 18, 2012 TO: Lockton Companies, LLC - Denver Matt Goss FROM: Terry McCann We are pleased to confirm that coverage has been bound with the carrier shown below in accordance with terms, conditions, and limitations provided by the carrier for you and your insured to review. As the Insured's representative, it is your responsibility to carefully review with the Insured all of the terms, conditions, and limitations of this Confirmation of Insurance, and to specifically reconcile with the Insured any differences between those quoted and those you requested. RT Specialty expressly disclaims any responsibility for any failure on your part to review or reconcile any such differences with the Insured. This coverage may not be bound without a fully executed brokerage agreement. Any amendments to coverage must be specifically requested in writing or by submitting a policy change request form and then approved by the Insurance Company Underwriters. Coverage cannot be affected, amended, extended or altered through the issuance of certificates of insurance. IMPORTANT NOTE: The Home State of the Named Insured shall be determined in accordance with the provisions of the Non - admitted and Reinsurance Act of 2010, 15. U.S.0 §8201, etc. ( "NRRA "), and the applicable law of the Home State governing cancellation or non - renewal of insurance shall apply to this Policy. INSURED: City of Aspen 530 E Main Street Suite LL Aspen, CO 81611 -1948 CARRIER: Ironshore Specialty Insurance Cc COVERAGE: Excess Liability FORM: CELCOV.001 (10/11) Commercial Excess liability Policy POLICY NUMBER: 001346600 POLICY TERM: 4/30/2012 to 4/30/2013 LIMITS: $10,000,000 Each Occurrence Limit: $10,000,000 Aggregate: UNDERLYING: $2M /$2M - Wrap Up - HCC RATE: Flat R -T Specialty, LLC In California: R -T Specialty Insurance Services, LLC License ttOG97516 500 W. Monroe Street, 28th Floor, Chicago, IL 60661 Phone - (312) 651 -6000 Fax - (312) 651 -6096 Page I 1 PREMIUM: RYAN T U RR, SA'" REVISED CONFIRMATION OF INSURANCE Premium (Includes TRIA) $101,000.00 Surplus Lines Tax — CO — RT to File $3,030.00 TOTAL $104,030.00 TERMS AND CONDITIONS: • 25% Minimum Earned Premium at inception • Premium is 100% minimum and deposit —100% earned in 12 months • No Flat Cancellations • Designated Project: Site development and walkways, retaining wall which will later become part of the garages during construction of the remaining work. • 10 -day notice of cancellation applies tf premium is not received within 30 days. All OTHER TERMS AND CONDITIONS APPLY PER FORM SUBJECT TO: 1. Signed and dated Wrap Application DUE AT TIME OF BINDING FORMS AND ENDORSEMENTS: 1. CEI.COV.ODI (10/11) Commercial Excess Liability Policy 2. CELDEC.DDI (10/11) Commercial Excess liability Declarations Page 3. CELEND.DOI (10/11) Schedule of Underlying Insurance 4. CEI.END.DII (10/11) Employment Related Practices Liability 5. CEL.END.020 (10/11) Nuclear Liability Exclusion 6. CEI.END.00S (10/11) Amendatory Endorsement - Crisis Management Exclusion 7. CELEND.027 (10/11) Terrorism Exclusion 8. CEI.END.030 (10/11) Violation of Economic or Trade Sanction (OFAC) 9. CELEND.006 (10/11) Asbestos Exclusion 10. CEL.END.031 (10/11) War or Military Exclusion 11. CEL.END.022 (10/11) Other Laws Exclusion 12. CEL.END.00S (10/11) Claims Notification - Construction 13. CELEND.OIS (10/11) Issuance of Commercial Excess Liability Policy Prior to Receipt of Controlling Underlying 14. CELEND.017 (10/11) Minimum Earned Premium 15. CEL.END.025 (10111) Service of Suit 16. Manuscript: Single General and Products - Completed Operations Aggregates (no aggregate reinstatements) 17. Manuscript: Option to add vertical construction - 82 townhomes within 7 frame buildings (3 stories of frame over concrete pads) for deed restricted city workers. Policy term to be increased to a maximum of 5 years total. Notification must be provided prior to 4/15/13 with all work to be completed by 60 months. ($75,000 AP, plus 1 % TRIA) CONFIRMED BOUND BY: Terry McCann R -T Specialty, LLC In California: R -T Specialty Insurance Services, LLC License #OG97516 500 W. Monroe Street, 28th Floor, Chicago, IL 60661 Phone - (312) 651 -6000 Fax - (312) 651 -6096 Page 12 A TURNER SPECIALTY REVISED CONFIRMATION OF INSURANCE "This contract is delivered as surplus line Insurance under the 'Nonadmitted Insurance Act. The Insurer Issuing this contract is not admitted In Colorado but. is an approved nonadmitted Insurer. There Is no protection under the provisions of the 'Colorado Insurance Guaranty Association Act" CONFIDENTIAL R -T Specialty, LLC In California: R -T Specialty Insurance Services, LLC License #OG97516 500 W. Monroe Street, 28th Floor, Chicago, IL 60661 Phone - (312) 651 -6000 Fax - (312) 651 -6096 Page 3 ACE AMERICAN INSURANCE COMPANY ACE Global Underwriting Group - Inland Marine 601 So. Figueroa St., 15th Fl., Los Angeles, CA 90017 Page 1 PH: 213 - 833 -3198 (DAY), 213 - 833 -3131 (FAX) BINDER: PROJECT BUILDER'S RISK ® Policy No. 12 1067544 001 TO: Mr. Matt Goss FROM: Cheryl Eidenbock COMPANY: Lockton Companies DATE: 04/27/2012 Denver, CO 80237 -2984 EMAIL: Matt.Goss @lockton.com EMAIL: cheryl.eidenbock(a)acegroup.com RE: City of Aspen Burlingame Infrastructure Aspen, CO PROJECT: City of Aspen Burlingame Infrastructure Thank you for the bind order on the above account. We are pleased to bind this Project Builder's Risk on behalf of ACE American Insurance Company, an admitted facility and member company of ACE USA. Please review this binder carefully. Effective Date: Est. 04/30/2012 Expiration Date: Est. 04/30/2013 Company: ACE American Insurance Company - Admitted Coverage: Builder's Risk Coverage Form(s): Inland Marine Completed Value Project Builder's Risk Form ACE0219 (01 -05) Covered Perils: Risks of direct physical loss or damage subject to the terms, conditions and exclusions in the policy forms and as specified below Valuation: Per form, as highlighted below Job Site Location: Burlingame Ranch Phase II Aspen, CO Project Description: Infrastructure work for planned townhome community Intended Occupancy: Infrastructure City of Aspen Infrastructure ACE AMERICAN INSURANCE COMPANY ACE Global Underwriting Group - Inland Marine 601 So. Figueroa St., 15th Fl., Los Angeles, CA 90017 PH: 213 - 833 -3198 (DAY), 213 - 833 -3131 (FAX) Page 2 I. Estimated Value of A. $7,000,000 Estimated mated construction contract price; Contract Works at B. N/A - Value of all property not declared in A. above to be insured by this policy and Policy Inception: intended for installation under the construction contract, whether supplied by the project owner(s), or other(s); C. $7,000,000 - Estimated completed value of contract works at policy inception. D. $No Coverage - Soft Costs in the aggregate E. $No Coverage - Rental Income in the aggregate II. Limit of Liability: Sublimits of Liability: Additional Sublimits of Liability: $7,000,000 - Total Insurance Values $7,000,000 (100 1/6) part of $7,000,000 - per Occurrence The Company will pay no more than the above limit(s) of liability in any one occurrence. In addition, the Company will not be liable for more than its proportionate share (100 %) of the following sublimits and aggregate limits, which are part of, and not in addition to, the Limit of Liability above: A. Physical damage or loss to covered property B. Soft Costs- Per Endorsement No. to be advised C. Rental Income — Per Endorsement No. to be advised D. Property in- transit on any conveyance E. Off -site storage any one location F. Installed Trees and Shrubs Subject to a maximum for any one tree or shrub of: G. Expediting Expense any one occurrence H. Debris removal, the lesser of 25% of the insured physical loss (.Ordinance or Law J. Fire department service charge K. Valuable papers and records L. Loss adjustment expenses $ 7,000,000 $ No Coverage $ No Coverage $ 500,000 $ 500,000 $ 100,000 $ 5,000 $ 100,000 Included $ No Coverage $ 100,000 $ 100,000 $ 10,000 Construction Forms, Scaffolding and False Work Included Temporary Structures including office & tool trailers and fencing Included Water Damage ( Other than Flood ) in any one occurrence $ 7,000,000 Normal Windstorm ( Other than Named ) in any one occurrence $ 7,000,000 Aggregate Limits of Liability: A. Flood annual aggregate limit $ 7,000,000 B. Earth Movement annual aggregate limit $ 7,000,000 C. Pollutant Clean -up & Removal $ 100,000 Sub - Limits of Liability and Aggregate Sub - Limits of Liability are part of and not in addition to the overall occurrence Limit of Liability City of Aspen Infrastructure 99 601 AMERICAN INSURANCE COMPANY ACE Global Underwriting Group - Inland Marine 601 So. Figueroa St., 15`h Fl., Los Angeles, CA 90017 Page 3 PH: 213 - 833 -3198 (DAY), 213 - 833 -3131 (FAX) III. Deductibles - per occurrence All Covered Causes of Loss; except, $ 10,000 per Occurrence Water Damage $ 25,000 per Occurrence Physical Loss or Damage as respects the peril of $ 25,000 per Occurrence Earth Movement Physical Loss or Damage as respects the peril of $ 25,000 per Occurrence Flood Soft Costs /Rental Income per Occurrence 30 Day Waiting Period Where a percentage deductible is shown above, the deductible shall be the greater of the dollar amount shown or stated percentage of the total insured values at the project location at time and date of loss If one or more deductibles are contained in a Followed Policy, we will not pay any loss until the applicable deductibles have been exhausted. We will then pay our percentage share of loss up to our Limit of Liability. IV. Rates and Adjustment: Coverage Type Adjustment Rate Term Premium Hard Costs $0.07 — Term Rate per $100 $4,900 Premium(s): Deposit Premium $4,900 excluding TRIA Extensions: If construction is not completed by expiration date listed above and an extension is requested, rates, terms and conditions are to be approved by the Company prior to binding. Minimum Earned Premium TRIA Deposit Premium City of Aspen Infrastructure $1,225 3.00% of Total Deposit Premium ACE AMERICAN INSURANCE COMPANY ACE Global Underwriting Group - Inland Marine 601 So. Figueroa St., 15th Fl., Los Angeles, CA 90017 Page 4 PH: 213 - 833 -3198 (DAY), 213 - 833 -3131 (FAX) SPECIAL CONDITIONS AMENDMENTS: ADDITIONAL NAMED INSUREDS: + As their interests may appear by contract, its sub - contractors of every tier, and other interests to be advised, if any. PERMISSION FOR OCCUPANCY: + Permission for Occupancy may be granted during policy term for the purposes intended for this described project. Any other use or occupancy must be declared to the Company for agreement in advance. PREMIUM ADJUSTMENT: + There shall an adjustment of premium or return premium for actual completion or final total completed values of contract works less than the amount declared at inception date. POLICY TERM EXTENSION PROVISION: + Policy Term extension of the policy expiration date is agreed up to no more than sixty (60) days at pro rata of the Annual Adjustment Rates shown, and subject to prior approval of the Company for such policy term extension. TERM EXTENSION REPORTING PROVISION: + An additional premium shall be charged for any term extension of the policy. If any policy term extension is requested, the Named Insured must report the completed values of contract works estimated for the project including values of all construction work, additions and change orders for the project at that time, and pay for any increase of total completed values of contract works for the full applicable policy term period from the policy inception date, plus additional premium charge for the policy term extension itself. TESTING: + Testing of all building equipment systems are covered as Cold Testing. SUBJECT TO: , Inspection: Favorable inspection(s) during policy term period and compliance with recommendations, if any. Excess Insurance: Permission granted for Excess insurance over the ACE American Insurance Company Policy Limit subject to disclosure of Excess insurance limits, the insurers, layering and premium(s) for same. City of Aspen Infrastructure ACE AMERICAN INSURANCE COMPANY ACE Global Underwriting Group - Inland Marine 601 So. Figueroa St., 15'h Fl., Los Angeles, CA 90017 PH: 213 - 833 -3198 (DAY), 213 - 833 -3131 (FAX) SPECIAL CONDITIONS & ADDITIONAL UNDERWRITING INFORMATION REQUESTED (1.) Binder is valid for a period of 30 -days. (2.) Note that per submission we will not • Delete Land Exclusion • Delete artificial current exclusion • Delete rust & corrosion exclusion • No change in resulting damage wording Page 5 Terms & Conditions: Valuation: Property Under Construction ,The cost to repair or replace the property lost or damaged at the time and place of loss with material of like kind and quality less betterment, including contractor's reasonable profit and overhead not exceeding the percentages in the original contract; if not so replaced then loss shall be settled on the basis of Actual Cash Value with proper deduction for depreciation. Property of Others (Including Items Supplied by the Owner) - The Owner's cost or other Actual Cash Value, whichever is greater, including the contractor's charges. Temporary Works - The cost to repair or replace the property lost or damaged with material of like kind, quality and condition but in the event not replaced recovery will not exceed Actual Cash Value. Installed Trees and Shrubs - The cost to replace with property of like kind, quality and size plus the proper proportion of labor expended if such damage occurs after installation. We will pay for losses to covered property by determining its Replacement Cost provided that the Insured actually repairs or replaces the lost or damaged property, or begins to repair the damaged covered property, within 24 months from the date of loss or damage, otherwise, the Company will pay for losses to covered property by determining its Actual Cash Value. Mandatory All policy form exclusions including but not limited to Earthquake and / or Land Movement, Flood, Named Exclusions & Windstorm, Pollution & Contamination, Asbestos, Electronic Data / Cyber Risk, Mold / Fungus, and Amendments: Nuclear, Biological and Chemical exclusions. City of Aspen Infrastructure ACE AMERICAN INSURANCE COMPANY ACE Global Underwriting Group - Inland Marine 601 So. Figueroa St., 15th Fl., Los Angeles, CA 90017 Page 6 PH: 213 - 833 -3198 (DAY), 213 - 833 -3131 (FAX) Remarks: TRIA: Attached please find a Disclosure Notice required by the Terrorism Risk Insurance Program Reauthorization Act of 2007 ( "Reauthorization Act "). The premium charge for the terrorism coverage is set forth on the Disclosure Notice. This forms part of the overall premium quoted above for the Company's participation. Certificates of Insurance: Please be advised that we do not review Certificates of Insurance or Evidences of Commercial Property Insurance issued by you, or by any party, relating to this policy of insurance either for content or accuracy. Accordingly, we request that you do not provide copies of certificates or evidences to us for review or for our records. Authority is granted to you for the limited purpose of issuing' unmodified ACORD Certificates ( ACORD 25 -S for Casualty and ACORD 24 for Property and Inland Marine) and unmodified Evidence of Commercial Property Insurance ( ACORD 28) only. It is your responsibility to see that any Certificate or Evidence provides an accurate representation of the coverage form and endorsements applicable to this policy at the time the Certificate or Evidence is issued. Any modification of the approved ACORD forms specifically set forth above, or the issuance of a non- approved Certificate of Insurance ACORD or other is prohibited. Certificates of Insurance or Evidence of Commercial Property Insurance may only be issued as a matter of information. You have no authority by virtue of a Certificate, Evidence, or otherwise, to amend, extend or otherwise alter coverage afforded under this policy. Certificates of Insurance or Evidences of Commercial Property Insurance are never recognized as endorsements or policy change requests. You must submit a separate written request if an endorsement or policy change (including but not limited to adding additional insureds, loss payees and mortgagees and /or alteration of notice requirements for cancellation) is requested. In the event a policy change is requested, the underwriter will advise if request is acceptable to the Company. City of Aspen — Burlingame Infrastructure Policyholder Policy Number: 121067544 001 Lockton Denver, CO Producer City of Aspen Infrastructure ACE American Insurance Company Insurance Company Admitted Chartis Insurance Agency, Inc. 777 S FIGUEROA STREET LOS ANGELES, CA 90017 April 30, 2012 Attn: EMMY JENNINGS Producer Name: LOCKTON COMPANIES LLC Address: 8110 E UNION AVE., STE 700 DENVER, CO 80237 -2966 Phone: 303 - 414 -6483 Fax: 313- 865 -6483 Email: EMMY.JENNINGS @LOCKTON.COM Re: Insurance Binder Named Insured: ASPEN, CITY OF (INC) Address: 130 S GALENA ST ASPEN, CO 81611 -1902 Operations: Per application CIHARTIS�'` CONTRACTOR'S POLLUTION LIABILITY (CPO) coverage has been bound for the above - captioned account. Coverage is bound using the CHARTIS SPECIALTY INSURANCE COMPANY, Form #96680 (11/09). Chartis is a world leading property - casualty and general insurance organization serving more than 40 million clients in over 160 countries and jurisdictions. With a 90 -year history, one of the industry's most extensive ranges of products and services, deep claims expertise and excellent financial strength, Chartis enables its commercial and personal insurance clients alike to manage virtually any risk with confidence. Chartis is the marketing name for the worldwide property - casualty and general insurance operations of Chartis Inc. For additional information, please visit our website at www.chartisinsurance.com . Please feel free to contact me with any questions. Thank you for choosing to place your business with Chartis. Sincerely, LUNA BOWSER UNDERWRITER Tel: 213- 689 -2721 Fax: -- - - - - -- LUNA.BOWSER@CHARTISINSURANCE.COM ASPEN, CITY OF (INC) CIB004 Submission Number: 00065531057 Page 1 of 4 Premium Indication: 000349982 -003 Issue Date: April,30, 2012 Environmental Insurance Binder Product Name: CONTRACTOR'S POLLUTION LIABILITY (CPO) Policy Period: From: April 30, 2012 To: April 30, 2017 Policy Number: CPO 18426844 New / Renewal: NEW Named Insured: ASPEN, CITY OF (INC) Issuing Company: CHARTIS SPECIALTY INSURANCE COMPANY Producer: LOCKTON COMPANIES LLC Submission Number: 00065531057 SECTION I - Coverages, Limits, and Deductibles: Coverage - Occurrence Limit of Liability: $3,000,000 $250,000 $3,000,000 Deductible: $25,000 -Additional Section I Information: Coverage A Each Loss Coverage B Each Claim Aggregate Each Loss NOTICE: PLEASE READ CAREFULLY THE ATTACHED POLICYHOLDER DISCLOSURE STATEMENT UNDER TERRORISM RISK ACT OF 2002. YOU HAVE ACCEPTED THIS COVERAGE. SECTION II - Additional Policy Information: Policy Premium: $70,572 ** The Premium amount(s) stated above does not include surplus lines tax, or surplus lines fees. Premium for Certified Acts of Terrorism Coverage: $629.00 (included in Policy Premium) Minimum Earned Premium: 25% Revenue Basis: $33,000,000.00 Additional Section II Information: SECTION III - Forms The CHARTIS SPECIALTY INSURANCE COMPANY, Form #96680 (11109) Form will be modified as follows: t - Notice of Loss /Notice of Claim, Form #91968 (12/06) - CSIC CPO Dec, Form #96681 (11/09) - Terrorism Excl W /Cert Acts Exception Purchased End, Form #97637 (03/08) - Crisisresponse and Crisis Management Endorsement, Form #109055 (07/11) ASPEN, CITY OF (INC) CIB004 Submission Number: 00065531057 Page 2 of 4 Premium Indication: 000349982 -003 Issue Date: April 30, 2012 - Schedule Of Approved Crisis Management Firms, Form# 109399 (11 /11) - Projectprotect Project Owner Controlled End, Form #109168 (09/11) Additional Section III Information: SECTION IV - Services: At Chartis, we enhance the coverage of every environmental insurance policy by giving insureds complimentary access to the following tools and programs proven to help manage environmental risk, mitigate environmental losses, and conduct loss control: PIER (Pollution Incident and Environmental Response) Policyholders have access to pre- screened crisis management specialists who respond in a timely manner to environmental incidents at pre- negotiated rates. Environmental insurance policyholders are automatically enrolled in this program. Claims Expertise Our pollution claims operation, with 80 + claims specialists, is the largest in the industry. RiskTool System The complimentary, web -based system brings together a myriad of information that a company needs to manage Environmental, Health. and Safety (EH &S) programs in one virtual "reference desk." SCAN (Specialty Claims Assistance Network) Specialists are available to swiftly address indoor air quality issues that are faced by our insureds, thus helping them mitigate water and mold damage. Transportation Loss Control Programs We provide a number of transportation - related programs for insureds that reinforce positive driving behavior and potential improvements in loss reduction. These programs include preventive driving sessions and mock Department of Transportation audits. Environmental Portal Portal is secure, Internet -based system that allows our clients to track environmental insurance policies for multiple site portfolios. Chartis is committed to the achievement of effective risk management objectives for clients as well as providing them access to incident response assistance in the event of a pollution - release event. SECTION V - Subject To Information: We require that you send us a completed and signed Broker Responsible for Surplus Lines Filings Agreement, and if applicable your NJ SLA #. If the items requested above are not received within ten (10) business days, we reserve the right to void this binder ab initio and any policy issued in connection with this binder. Payment of premium shall not operate to extend the binding period or nullify the voiding as described above. The above binder confirmation is subject to the receipt and satisfactory review and acceptance of the following, within 3 days of binding, unless otherwise specified: ASPEN, CITY OF (INC) CIB004 Submission Number: 00065531057 Page 3 of 4 Premium Indication: 000349982 -003 Issue Date: April 30, 2012 The policy will be issued by CHARTIS SPECIALTY INSURANCE COMPANY, 175 Water Street, New York, NY 10038. The premium must be remitted to CHARTIS SPECIALTY INSURANCE COMPANY within thirty (30) days of the effective date of the policy, or within fifteen (15) days of billing, whichever is later. It is your responsibility to follow applicable state surplus lines laws and, in particular, to see that the appropriate surplus lines tax (and stamping fee, if applicable) is collected and paid. This binder contains an outline of coverage and does not include all the terms, conditions and exclusions of the policy that may be issued. The Policy contains the full and complete agreement with regards to coverage. Please review the policy thoroughly upon receipt and notify us promptly in writing if there are any questions. NOTICE: THIS INSURER IS NOT LICENSED IN THE STATE OF NEW YORK AND IS NOT SUBJECT TO ITS SUPERVISION. ASPEN, CITY OF (INC) CIB004 Submission Number: 00065531057 Page 4 of 4 Premium Indication: 000349982 -003 Issue Date: April 30, 2012 POLICYHOLDER DISCLOSURE STATEMENT UNDER TERRORISM RISK INSURANCE ACT OF 2002 You are hereby notified that under the federal Terrorism Risk Insurance Act of 2002 (the "Act ") effective November 26, 2002, you now have a right to purchase insurance coverage for losses arising out of an Act of Terrorism, which is defined in the Act as an act certified by the Secretary of the Treasury (i) to be an act of terrorism, (ii) to be a violent act or an act that is dangerous to (A) human life; (B) property or (C) infrastructure, (iii) to have resulted in damage within the United States, or outside of the United States in case of an air carrier or vessel or the premises of a U.S. mission and (iv) to have been committed by an individual or individuals acting on behalf of any foreign person or foreign interest, as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion. You should read the Act for a complete description of its coverage. The Secretary's decision to certify or not to certify an event as an Act of Terrorism and thus covered by this law is final and not subject to review. There is a $ 100 billion dollar annual cap on all losses resulting from Acts of Terrorism above which no coverage will be provided under this policy and under the Act unless Congress makes some other determination. For your information, coverage provided by this policy for losses caused by an Act of Terrorism may be partially reimbursed by the United States under a formula established by the Act. Under this formula the United States pays 90% of terrorism losses covered by this law exceeding a statutorily established deductible that must be met by the insurer, -and which deductible is based on a percentage of the insurer's direct earned premiums for the year preceeding the Act of Terrorism. Coverage for Acts of Terrorism is included in the policy referenced below. The portion of your policy premium that is attributable to coverage for Acts of Terrorism covered by the Act is $629.00. The premium stated herein does not include any surplus lines taxes or fees that may be applicable, which are the responsibility of the insured. It is the broker's responsibility to follow applicable state surplus lines laws and, in particular, to see that the appropriate premium tax (and stamping office fee, if applicable) is collected from you and paid. CHARTIS SPECIALTY INSURANCE COMPANY NAMED INSURED: ASPEN, CITY OF (INC) POLICY #: CPO 18426844 EFFECTIVE DATES: 04/30/2012 TO 04/30/2017 BINDER OR IN -FORCE POLICY WITH TERRORISM AND PREMIUM - SURPLUS LINES 81272 (12/02) CI1952 This endorsement, effective 12:01 AM, Forms a part of Policy No: Issued to: By t ENDORSEMENT NO. k Vii$ A,- THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TERRORISM EXCLUSION WITH CERTIFIED ACTS OF TERRORISM EXCEPTION PURCHASED ENDORSEMENT This Policy is amended by the addition of the following Exclusion: The Company has no obligation to make any payment or to provide or to pay for a defense under this Policy due to or arising directly or indirectly as a result of or in connection with Terrorism. Terrorism means the use or threatened use of force or violence against person or property, or commission of an act dangerous to human life or property, or commission of an act that interferes, with or disrupts an electronic or communication system, undertaken by any person or group, whether or not acting on behalf of or in connection with any organization, government, power, authority or military force, when the effect is to intimidate, coerce or harm a government, the civilian population or any segment thereof, or to disrupt any segment of the economy. This Exclusion does not apply to a certified "act of terrorism" which is defined by Section 102. Definitions, of the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007 as follows: ACT OF TERRORISM (A) CERTIFICATION - The term "act of terrorism" means any act that is certified by the Secretary (of the Treasury), in concurrence with the Secretary of State, and the Attorney General of the United States - (i) to be an act of terrorism; (ii) to be a violent act or an act that is dangerous to -- (1) human life; (Iq property; or (III) infrastructure; (iii) to have resulted in damage within the United States, or outside of the United States in the case of -- (1) an air carrier or vessel (described in TRIA) (11) the premises of a United States mission; and (iv) to have been committed by an individual or individuals acting as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United_ States Government by coercion. (B) LIMITATION -- No act shall be certified by the Secretary as an act of terrorism if -- (i) the act is committed as part of the course of a war declared by the Congress, except that this clause shall not apply with respect to any coverage for workers' compensation; or (ii) property and casualty insurance losses resulting from the act, in the aggregate, do not exceed $5,000,000. (C) DETERMINATIONS FINAL - Any certification of, or determination not to certify, an act as an act of terrorism under this paragraph shall be final, and shall not be subject to judicial review. 97637 (3/08) C13509 FOR USE WHEN THE INSURED ELECTS FULL CERTIFIED ACTS OF TERRORISM. PAGE 1 OF 2 NO. (Continued) (D) NONDELEGATION - The Secretary may,; person, any determination under this Parag act of terrorism has occurred. Al other terms, conditions, and exclusions shall remain the same. 97637 (3/08) C13509 or designate to any other officer, employee, or r, during the effective period of the Program, an AUTHORIZED REPRESENTATIVE or countersignature (in states where applicable) FOR USE WHEN THE INSURED ELECTS FULL CERTIFIED ACTS OF TERRORISM. PAGE 2 OF 2 This endorsement, effective 12:01 AM, Forms a part of Policy No: Issued to: By THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CRISISRESPONSE0 AND CRISIS MANAGEMENT ENDORSEMENT It is hereby agreed that: 1. The following is added to Section I. INSURING AGREEMENTS, 1. COVERAGES: COVERAGE E - CRISISRESPONSE AND CRISIS MANAGEMENT 1. Advancement of CrisisResponse ®Costs during a Crisis Management Event The Company will pay CrisisResponse® Costs on behalf of the Insured that may be associated with Loss covered by this Policy arising from a Crisis Management Event first commencing during the Policy Period. The Company will advance CrisisResponse Costs that may be associated with Loss covered by this Policy directly to third parties. 2. Crisis Management Insurance The Company will pay Crisis Management Loss on behalf of the Insured arising from a Crisis Management Event first commencing during the Policy Period. A Crisis Management Event shall first commence at the time during the Policy Period when a Responsible Insured first becomes aware of a Pollution Condition that gives rise to a Crisis Management Event and shall end at the earliest of the time when the Company determines that a crisis no longer exists or when the CrisisResponse limit of insurance and /or the crisis management limit of insurance, whichever applies, as described in Section V. LIMITS OF LIABILITY AND DEDUCTIBLE, as amended by this Endorsement, has been exhausted. 3. Any advancement of CrisisResponse Costs or payment of Crisis Management Loss that the Company makes under the coverage provided by this coverage section will not be a determination of the Company's obligations under this Policy, nor create any duty to defend any Claim under any other part of this Policy. 2. The following are added to Section VI. DEFINITIONS: Crisis Management Event means an event that in the good faith opinion of a Responsible Insured, in the absence of Crisis Management Services, has been associated with or may reasonably be associated with: 1. Loss covered by this Policy; and 2. Significant adverse regional or national news media coverage. Crisis Management Firm means any public relations firm or crisis management'firm approved by the Company that is hired by the Insured to perform Crisis Management Services in connection with a Crisis Management. Event. Attached to and forming a part of this Policy is a Schedule of firms that have been pre- approved by the Company and may be hired by the Insured without further approval by the Company. 109055 (7/11) PAGE 1 OF 3 C14977 NZ ENDORSEMENT NO. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CRISISRESPONSE0 AND CRISIS MANAGEMENT ENDORSEMENT It is hereby agreed that: 1. The following is added to Section I. INSURING AGREEMENTS, 1. COVERAGES: COVERAGE E - CRISISRESPONSE AND CRISIS MANAGEMENT 1. Advancement of CrisisResponse ®Costs during a Crisis Management Event The Company will pay CrisisResponse® Costs on behalf of the Insured that may be associated with Loss covered by this Policy arising from a Crisis Management Event first commencing during the Policy Period. The Company will advance CrisisResponse Costs that may be associated with Loss covered by this Policy directly to third parties. 2. Crisis Management Insurance The Company will pay Crisis Management Loss on behalf of the Insured arising from a Crisis Management Event first commencing during the Policy Period. A Crisis Management Event shall first commence at the time during the Policy Period when a Responsible Insured first becomes aware of a Pollution Condition that gives rise to a Crisis Management Event and shall end at the earliest of the time when the Company determines that a crisis no longer exists or when the CrisisResponse limit of insurance and /or the crisis management limit of insurance, whichever applies, as described in Section V. LIMITS OF LIABILITY AND DEDUCTIBLE, as amended by this Endorsement, has been exhausted. 3. Any advancement of CrisisResponse Costs or payment of Crisis Management Loss that the Company makes under the coverage provided by this coverage section will not be a determination of the Company's obligations under this Policy, nor create any duty to defend any Claim under any other part of this Policy. 2. The following are added to Section VI. DEFINITIONS: Crisis Management Event means an event that in the good faith opinion of a Responsible Insured, in the absence of Crisis Management Services, has been associated with or may reasonably be associated with: 1. Loss covered by this Policy; and 2. Significant adverse regional or national news media coverage. Crisis Management Firm means any public relations firm or crisis management'firm approved by the Company that is hired by the Insured to perform Crisis Management Services in connection with a Crisis Management. Event. Attached to and forming a part of this Policy is a Schedule of firms that have been pre- approved by the Company and may be hired by the Insured without further approval by the Company. 109055 (7/11) PAGE 1 OF 3 C14977 ENDOR Crisis Management Loss means the 1. Amounts for the reasonable and necessary fees; the performance of Crisis Management Servic Management Event; and CONTINUED rred during a Crisis Management Event: incurred by a Crisis Management Firm in ured solely arising from a covered Crisis 2. Amounts for reasonable and necessary printing, advertising, mailing of materials, or travel by the Named Insured's directors, officers, employees or agents or a Crisis Management Firm incurred at the direction of a Crisis Management Firm, solely arising from a covered Crisis Management Event. Crisis Management Services means those services performed by a Crisis Management Firm in advising the Insured on minimizing potential harm to the Insured from a covered Crisis Management Event by maintaining and restoring public confidence in the Insured. CrisisResponse° Costs means the following reasonable and necessary expenses incurred during a Crisis Management Event directly caused by a Crisis Management Event, provided that such expenses have been pre- approved by the Company and may be associated with Loss that would be covered by this Policy: 1. Medical expenses; 2. Funeral expenses; 3. Psychological counseling; 4. Travel expenses; 5. Temporary living expenses; 6. Expenses to secure the scene of a Crisis Management Event; and 7. Any other expenses pre- approved by the Company. CrisisResponse® Costs does not include defense costs or Crisis Management Loss. 3. The following is added to the end of Section IV. LIMITS OF LIABILITY AND DEDUCTIBLE, Paragraph C. DEDUCTIBLE - EACH LOSS: Coverage E Subject to Paragraphs A. and B. above, this Policy is to pay covered CrisisResponse® Costs and /or Crisis Management Loss in excess of the following Deductible amount: $25,000, up to but not exceeding the limits set forth in Paragraph A. above; provided that payment of Deductible amounts for CrisisResponse® Costs and /or Crisis Management Loss shall erode the Deductible amount applicable to that particular Loss arising out of the same, related or continuous Pollution Conditions for all other Coverages under this Policy. The Insured shall promptly reimburse the Company for advancing any element of Loss falling within the Deductible. 4. The following is added to the end of Section IV. LIMITS OF LIABILITY AND DEDUCTIBLE, Paragraph A. LIMITS OF LIABILITY - AGGREGATE: The Company's total liability for all CrisisResponse® Costs and /or Crisis Management Loss shall not exceed $250,000 combined, regardless of the number of Crisis Management Events first commencing during the Policy Period. The Company will have no obligation to advance CrisisResponse® Costs or to pay Crisis 109055 (7/11) PAGE 2 OF 3 C14977 ENDORSEMENTNO. CONTINUED Management Loss from the ear1id'6t-FdVft1ifime when the Company determines that a Crisis Management Event has ended or when this $250X IQt1of liability has been exhausted. CrisisResponse® Costs and /or Crisis Management Loss shalt' not bejncluded as Loss and do not reduce the available Limit of Liability. 5. The following is added to Section III. CLAIMS AND NOTICE,,PROVISIONS, Paragraph A. INSURED'S DUTIES WHEN THERE IS A CLAIM OR EMERGENCY RESPOW61E ;�;OSTS: 5. The Insured must report any Crisis Management Event to the Company within twenty -four (24) hours of the time that a Responsible Insured first becomes aware of a Pollution Condition that gives rise to a Crisis Management Event or as soon as practicable to be eligible for the advancement of CrisisResponse® Costs and the payment of Crisis Management Loss. Notice of a Crisis Management Event may be given by calling 1- 877 - 244-3100. If notice is given by telephone, written notice will be given as soon as practicable thereafter. Written notice should include: a. How, when and where the Crisis Management Event is taking or took place; b. The names and addresses of any injured persons and any witnesses; and c. The nature and location of any injury or damage arising out of the Crisis Management Event. 6. There shall be no requirement that the Insured obtain prior written approval from the Company before incurring any Crisis Management Loss, provided that the Crisis Management Firm selected by the Insured to perform the Crisis Management Services has been approved by the Company. If the Insured chooses to retain a firm that does not appear in the Schedule attached to and forming a part of this Policy, the Insured must obtain the Company's consent, which shall remain in the Company's sole discretion, prior to retaining the services of such firm. 7. Any payments for Crisis Management Loss or advancement of CrisisResponse® Costs that the Company makes under this Policy: a. Shall not be deemed to be a determination of the insured's liability with respect to any Claim or Loss under the Policy; and b. Shall not create any duty to defend any Claim or to investigate any Claim or Pollution Conditions arising from a Crisis Management Event, nor any coverage obligations under this Policy. 8. If the Crisis Management Insurance provided by this Policy and any other insurance issued to the Named Insured by the Company or any of its affiliated companies shall apply to the same crisis the maximum limit of insurance under all insurance available shall not exceed the highest applicable limit of insurance available under any one policy or endorsement. 9. In the event of a dispute between the Insured and us as to whether a Crisis Management Event has occurred, the Insured may, at its own cost, retain the services of an approved Crisis Management Firm and /or advance CrisisResponse ®Costs. Provided, however, if the Insured elects to retain an approved Crisis Management Firm or to advance CrisisResponse® Costs, the Company shall have no obligation to reimburse the Insured under this Policy for such costs or expenses. The right to reimbursement shall be arbitrated pursuant to the rules of the American Arbitration Association in New York, New York or in the state indicated in Item 1. of the Declarations of this Policy as the address of the Named Insured. All other terms, conditions, and exclusions shall remain the same. AUTHORIZED REPRESENTATIVE or countersignature (in states where applicable) 109055 ( 7/11) PAGE 3 OF 3 C14977 ENDORSEMENT NO. This endorsement, effective 1201 AM, Forms a part of Policy No:�� gy, Issued to: ._ By: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CRISISRESPONSE ®AND CRISIS MANAGEMENT SCHEDULE OF APPROVED CRISIS MANAGEMENT FIRMS ENDORSEMENT It is hereby agreed that the following public relations and non - public relations firms are approved crisis response vendors and are added to Section Vl. DEFINITIONS, Crisis Management Firm, as amended on the CRISISRESPONSE® AND CRISIS MANAGEMENT ENDORSEMENT attached to this Policy: FIRM ADDRESS CONTACT INFORMATION EMERGENCY SERVICES TELEPHONE OFFERED The Abernathy MacGregor Group, Inc. 501 Madison Ave. New York, NY 10022 611 W. Sixth Street, Suite 1880 Los Angeles, CA 90017 Rhonda Barnat Managing Director (212) 371 -5999 Office (917) 912 -6378 Cell (212) 752 -0723 Fax (646) 478 -8740 Home rb @abmac.com Ian D. Campbell Vice Chairman (213) 630 -6550 Office (213) 422 -7958 Cell (213) 489 -3443 Fax (818) 957 -5650 Home (818) 541 -0954 Home Fax idc @abmac.com Ann Barks Public Relations 896 Cross Gates Ann W. Barks Boulevard Owner Slidell, LA 70461 (985) 847 -0750 Direct ( 985) 290 -8304 Cell abarkspr @bellsouth.net (917) 912 -6378 (818) 750 -4392 (917) 940 -3476 (985) 290 -8304 Public Relations, Crisis Management services Serving clients in the US, UK, Germany, France, Italy, Switzerland, The Netherlands, Hong Kong, Spain, Latin America and China. Public Relations and Crisis Management services. Serving clients in the Gulf Coast region (Alabama, Florida, Georgia, Louisiana, Mississippi and Texas). 109399 (11/11) PAGE 1 OF 8 C15080 O'Neil & Associates 31 New Chardon St. Andrew M. Paven Public Relations and Boston, Senior Vice President Crisis Management Massachusetts 02114 (866) 989 -4321 Toll Free services. (617) 646-1005-Office (617) 646 -1290 Fax apaven @oneillandassociates.com Serving clients in the New England region. 109399 (11/11) PAGE 2 OF 8 C15080 ENDORSEMENT NO. CONTINUED Lexicon Communications Corp. 520 Bellmore Way Steven B. Fink m (626) 683 -9333 Public Relations, Pasadena, CA 91103 Presidents .: Crisis Management (626) 683-9333 Direct services. (626) 449 -7659 Fax``% (626) 253 -1519 Cell Serving the US and sfink @lexiconcorp.com Internationally. Bright Light Marketing Group 1001 Bishop Street, Charlene Lo Chan Public Relations and Suite 900 Executive Vice President and Chief Crisis Management Honolulu, Hawaii Operating Officer services. 96813 -3429 (808) 275 -3007 Direct (808) 524 -6441 Office Serving clients in .(808) 781 -7733 Cell Hawaii, Japan, (808) 524 -8115 Fax Taiwan, China, chariene @brightiightmarketing.com American Samoa, Samoa, Federated States of Micronesia, Guam, Mariana Islands, Saipan, Marshal Islands, Palau, Kiribati and South Korea. Dix & Eaton 200 Public Square Matt Barkett (216) 241 -3073 Public Relations, Suite 1400 Managing Director Crisis Management Cleveland, OH 44114- (216) 241 -3073 Direct services. 2316 (216) 241 -0405 Office (216) 780 -7800 Cell (216) 241 -3073 Fax Serving clients in the mbarkett@dix- eaton.com Great Lakes region and the Mid -West US: Gary Pratt Senior Vice President (216) 241 -4613 Direct (216) 241 -0405 Office (440) 477 -1278 Cell qpratt@dix- eaton.com O'Neil & Associates 31 New Chardon St. Andrew M. Paven Public Relations and Boston, Senior Vice President Crisis Management Massachusetts 02114 (866) 989 -4321 Toll Free services. (617) 646-1005-Office (617) 646 -1290 Fax apaven @oneillandassociates.com Serving clients in the New England region. 109399 (11/11) PAGE 2 OF 8 C15080 ENDa;RSEMENT NO. CONTINUED Edelman 200 E. Randolph Street, Harlan Loeb y;F ,�' k.„ (866) 333 -5911 63rd Floor Executive Vice Chicago, IL 60601 (312) 240 -2624 Direct r.5• (312) 240 -3000 Office (312) 240 -2900 Fax (312) 282 -5632 Cell harlan.loeb @edelman.com Jenifer Giller Senior Account Executive (312) 233 -1272 Direct & Cell (312) 240 -3000 Office (312) 240 -2900 Fax jenifer.giller @edelman.com ishman - Hilliard International Communications. Inc. John Hancock Center 200 East Randolph Street, 37th Floor Chicago, IL 60601 David Saltz Senior Vice President and Partner (312) 751 -3530 Direct (312) 751 -8878 Office (312) 312) 729 -3630 Cell (312) 751 -8191 Fax david.saltz @fleishman.com Rick Fox Senior Vice President (617) 729 -3734 Direct (312) 286 -4983 Cell (312) 751 -8191 Fax rick.fox @fleishman.com Levick Strategic Communications, LLC 1900 M Street NW Washington, D.C. 20036 Gene Grabowski Senior Vice President (202) 973 -1351 Direct ( 202) 270 -6560 Cell (202) 973 -1301 Fax ggrabowski @levick.com (202) 270 -6560 Jason Maloni Senior Vice President (202) 973 -1335 Direct (202) 834 -9677 Cell Jason.maloni @levick.com Marsh, Inc. (Reputational Risk & Crisis Management Group) 1166 Avenue of the Tracy Knippenburg Gillis (877) 246 -2774 Americas Managing Consultant New York, NY 10036 (212) 345 -3886 Direct (516) 661 -0308 Cell 109399 (11/11) C15080 Public Relations, Crisis Management services. Serving clients in the US and Internationally. Public Relations, Crisis Management services. Serving clients in the US and Internationally. Public Relations, Crisis Management services. Serving the US, Europe, Asia and the Middle East. Public Relations, Crisis Management services. PAGE 3 OF 8 ENDGRSEMENT NO. CONTINUED �3 ( 212) 345 California Street Simon R. Baker T ,- Suite 1300 Vice President San Francisco, (415) 743 -8648 Direct California 94104 (9415) 367 -5707 Cell simon.r.baker @marsh.com rbb Public Relations 355 Alhambra Circle, Bruce S. Rubin Suite 800 Senior Counselor Miami, Florida 33134 (305) 448 -2640 Direct (305) 807 -2704 Cell (305) 448 -5027 Fax Bruce.rubin @rbbpr.com Robinson, Lerer & Montgomer 1345 Avenue of the Michael Gross Americas Partner 4th Floor (646) 805 -2003 Direct New York, NY (646) 805 -2000 Office 10105 (917) 853 -0620 Cell (718) 788 -5281 Home mgross @rlmnet.com Sard Verbinnen & Co. 630 Third Avenue, 9th Floor New York, NY 10017 475 Sansome Street, Suite 1750 San Francisco, CA 94111 109399 (11/11) C15080 Patrick S. Gallagher Partner, Chief Financial Officer (646) 805 -2007 Direct (646) 805 -2000 Office (917) 328 -9333 Cell (646) 805 -2829 Fax (914) 232 -4256 Home pgallagher@ rlmnet.com George Sard Chairman and CEO (212) 687 -8080 Office (21 2) 687 -8344 Fax gsard @sardverb.com Paul Kranhold Managing Director (415) 618 -8750 Office (415) 568 -9580 Fax pkranhold @sardverb.com . � . :1 *44 (917) 750 -4392 Serving clients in the US. Public Relations and Crisis Management services. Serving clients in the us. Public Relations. Crisis Management services. Serving clients in the US. Public Relations, Crisis Management services. Serving clients in the us. PAGE 4 OF 8 The Torrenzano Grou The Lincoln Building 60 East 42nd Street, ENDQRSEMENT NO. CONTINUED SERVICES OFFERE Sitrick and Company Inc. Crisis Management Suite 2112 (212) 681 -1700 Ext. 111 Direct 655 Third Avenue, 4, Jeffrey S. Lloyd Ph. D (310) 358 -1011 Public Relations, 22nd Floor Managing Director Corporate Clinical Consultant and Crisis Management New York, NY 10017 (212) 660 -6393 Direct -" - services. US. (212) 573 -6100 Office Edward A. Orgon (416) 716 -8057 Cell Medical Cost (310) 963 -2850 Cell bill @billtibbo.com Serving clients in the (212) 681 -1700 Ext. 102 Direct (212) 573 -6165 Fax Containment US. Ross McPhail jeff.iloyd@sitrick.com (212) 681 -6961 Fax Vice President Operations 1840 Century Park East, Michael S. Sitrick (905) 830 -0291 Office Serving clients in the Suite 800 Chairman and CEO US & Canada. Los Angeles, CA (310) 788 -2850 Direct 90067 (310) 788 -2855 Fax PAGE 5 OF 8 mike sitrick @sitrick.com The Torrenzano Grou The Lincoln Building 60 East 42nd Street, Richard Torrenzano Public Relations, SERVICES OFFERE Chairman and CEO Crisis Management Suite 2112 (212) 681 -1700 Ext. 111 Direct services. New York, NY (212) 681 -6961 Fax Bill Tibbo 10165 -2112 richard @torrenzano.com Corporate Clinical Consultant and Counseling, L3X 1E4 Serving clients in the Medical Case US. Management, Edward A. Orgon (416) 716 -8057 Cell Medical Cost Chairman and Chief Operating Officer bill @billtibbo.com Projection and (212) 681 -1700 Ext. 102 Direct Containment (917) 539 -4000 Cell Ross McPhail services. (212) 681 -6961 Fax Vice President Operations ed @torrenzano.com (905) 830 -0291 Office THE FOLLOWING NON - PUBLIC RELATIONS FIRMS ARE APPROVED CRISIS RESPONSE VENDORS FIRM ADDRESS CONTACT INFORMATION EMERGENCY SERVICES OFFERE TELEPHONE Bill Tibbo & Associates 411 Borland Court Bill Tibbo Psychological Newmarket, Ontario, Corporate Clinical Consultant and Counseling, L3X 1E4 Disaster Management Specialist Medical Case (888) 355 -9788 Toll Free Management, (416) 716 -8057 Cell Medical Cost bill @billtibbo.com Projection and Containment Ross McPhail services. Vice President Operations (905) 830 -0291 Office Serving clients in the (905) 868 -4174 Cell US & Canada. ross @billtibbo.com 109399 (11/11) C15080 PAGE 5 OF 8 jxlacroix @cvty.com Lombardi Associates 277 Fairfield Road, Anthony Nastasi (877) 715 -2440 Suite 305A National Director of Client Services Fairfield, NJ 07004 (973) 271 -8928 Direct (800) 550 -0095 Office (310) 552 -9052 Fax anthony.nastasi @lombardiassociates .com Jennifer Wolfe (803) 917 -9948 ANS Rehab Consulting, LLC 305 Tallwood Lane, Nicole Denson (888) 552 -5378 Green Brook, National Director, Client Services New Jersey 08812 (908) 279 -7532 Main Office (908) 822 -0422 Fax (646) 584 -7885 Cell nicole @ansrehabconsulbng.com 109399 (11/11) C15080 Anthony Sambucini Managing Partner (908) 822 -9322 Direct (908) 822 -0422 Fax (908) 720 -8644 Cell anthony @ansrehabconsulting.com Psychological Counseling, Medical Case Management, Medical Cost Projection and Containment services. Serving clients in the US. Psychological Counseling, Medical Case Management, Medical Cost Projection and Containment services. Serving clients in the US and Canada. Psychological Counseling, Medical Case Management, Medical Cost Projection and Containment services. Serving clients in California, Connecticut, Florida, Georgia, Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, New Jersey, New York Pennsylvania, Virginia and Texas. PAGE 6 OF 8 ENDa- SEMENT NO. CONTINUED Cunningham Lindsey US (f /k /a GAB Rq't 560 Peoples Plaza, Suite 215 Newark, Delaware 19702 T. J. Russo Consultants 99 Hillside Avenue, Suite X Williston Park, NY 11596 D.A.R., Inc. 4 iris Drive Scarborough, Maine 04074 i Gail Oliver Vice President (302) 838 -1684 Direct (302) 521 -4985 Cell (302) 838 -1685 Fax goliverg @cl- na.com Michael W. Russo Senior Consultant (516) 294 -8644 Ext. 15 Direct (516) 456 -3900 After Hours ( 516) 747 -1009 Fax (516) 456 -3900 Cell mmussol23@aol.com David W. Hunt Founder and President (207) 415 -0735 Direct (207) 883 -0493 Home (207) 883 -2436 Fax dhunt12348 @aol.com Lanny J. Davis & Associates, LLC 600 13thStreet, NW Suite 600 Washington, DC 20005 Lanny J. Davis Attorney at Law (202) 756 -8211 (202) 737 -1141 Fax Idavis @lannyjdavis.com Maddie Melendez Assistant (202) 756- 8293 mmelendez @lannyjdavis.com America, Inc.) (800) 621 -5410 (516) 456 -3900 ( 207) 415 -0735 Claims Investigative, Appraisal, Emergency Claims and Loss Call Center Operations services. Serving clients in the US and Internationally. Fire Investigation and Analysis services. Serving clients in the US. Crisis Management, Global Investigation Services, Access to National & International Intelligence Agencies, Crisis Management services. Serving clients in the US and Internationally. Legal Crisis Communications, Med Strategy, Public Advocacy, Leg & Regulatory Issues, and Crisis Managemei services. Serving clients in the US and Internationally. 109399 (11/11) PAGE 7 OF 8 C15080 ENU SEMENT NO. CONTINUED Meagher & Geer, P.L.L.P.,;' Legal & Regulatory Washington, DC 20007 Director of Strategic Business Issues, Public 33 S. Sixth Street, Suite Russell D. Melton s<(612) 347 -9118 Commercial and 4400 Attorney at Law and Partner' s•' "'' industrial fire . Minneapolis, MN 55402 (612) 371 -1317 Direct investigation, (612) 338 -0661 Office engineering and (612) 338-8384 Fax legal services. (612j 964 -1882 Cell the US. , rmelton @meagher.com Serving clients in the US and Internationally. Patton Boaas. LLP 2550 M Street, NW Thomas M. Keane Legal & Regulatory Washington, DC 20007 Director of Strategic Business Issues, Public Initiatives, Litigation Practice Relations and Crisis (202) 457 -7540 Direct Management (202) 256 -1289 Cell services. (202) 457 -6315 Fax tkeane @pattonboggs.com Serving clients in the US. , All other terms, conditions, and exclusions shall remain the same. AUTHORIZED REPRESENTATIVE or countersignature (in states where applicable) 109399 (11111) PAGE 8 OF 8 C15080 This endorsement, effective 12:01 AM, Forms a part of Policy No: Issued to: By: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CPL PROJECTPROTECTsm PROJECT OWNER CONTROLLED ENDORSEMENT It is hereby agreed that this Policy applies only to the Covered Operations that are performed in connection with the following specified project: 1) Project Name: Burlingame Ranch Phase II 2) Contract Designation : TBD 3) Location: 130 South Galena St, Aspen, CO 81611 incld. offsite staging and storage areas 4) Project Owner: City of Aspen 5) Type Of Project: Construction of townhomes - 7 buildings, 3 stories frame over concrete pad and total of 82 units As respects to the Covered Operations performed in connection with the preceding specified project, it is also hereby agreed that: 1. Section I. INSURING AGREEMENTS, Paragraph 2. DEFENSE, is deleted in its entirety and replaced with the following: 2. DEFENSE When a Claim is made against the Insured to which Section I. INSURING AGREEMENTS, Paragraph 1. COVERAGES, COVERAGE A - LEGAL LIABILITY above applies, the Company has the right to appoint counsel and the duty to defend such Claim, even if groundless, false, or fraudulent. Claim Expenses are not included in the definition of Loss, and are not subject to the Deductible amount and do not reduce the applicable limit of liability, as described in Section IV. LIMITS OF LIABILITY AND DEDUCTIBLE, until Claim Expenses in the aggregate total $ 750,000 . Upon payment of Claim Expenses equaling this total, Claim Expenses are included within the definition of Loss, and are subject to the Deductible amount and reduce the applicable limit of liability, as described in Section IV. LIMITS OF LIABILITY AND DEDUCTIBLE. The Company shall not be obligated to defend or continue to defend any Claim after the applicable Limit of Liability has been exhausted by payment of Loss. The Company has the right and obligation to defend any Claim covered by this policy made against any Insured. All such Claims shall be defended on a "joint defense" basis, subject to applicable law, under which: (a) The Company shall appoint one counsel to defend all of the Insureds who are or may be involved with respect to any such Claim; and 109168 (9/11) PAGE 1 OF 6 C15025 �i# i �k9 ENDORS�bkll T.ND CONTINUED '� °:" 4 .g (b) All of the Insureds shall have the obligation, te with respect to the investigation and joint defense of any such Claims. 2. Section II. EXCLUSIONS, Paragraph C. PRODUCT LIABILITY, Paragraph H. TRANSFER, STORAGE OR DISPOSAL FACILITY, Paragraph I. PROFESSIONAL LIABILITY( 4_ Paragraph M. INSURED VS. INSURED are deleted in their entirety and replaced with the following: C. PRODUCT LIABILITY: Based upon or arising out of the sale, distribution, design or manufacture of a product unless installed as part of Covered Operations. However, this Exclusion does not apply to any Claims or Loss based upon or arising out of any waste originating from a site at which the Named Insured is performing Covered Operations and such waste is relinquished to others to recycle or reuse in a manner that is environmentally preferable to disposal. H. TRANSFER, STORAGE OR DISPOSAL FACILITY: Based upon or arising out of any waste, products or materials which have been delivered to a transfer, storage or disposal facility located beyond the boundaries of a job site where Covered Operations are being performed. However, this Exclusion does not apply to Loss reported to the Company in accordance with Section 111111. CLAIMS AND NOTICE PROVISIONS, and in no event more than three (3) years after the end of the Policy Period, based upon or arising out of any waste or any products or materials transported, shipped, or delivered to a transfer, storage or disposal facility utilized by or on behalf of the Named Insured provided that such wastes, products or materials originated from a site at which the Named Insured is performing Covered Operations and, on the date that the waste was accepted from the Named Insured, such transfer, storage or disposal facility was: 1. Properly licensed to accept and dispose of waste and in compliance with applicable Environmental Laws; 2. Not listed, not proposed and has never been listed on the federal National Priorities List (Superfund), State equivalent list, or local equivalent list; 3. Not subject to Federal information requests under Section 104(e) of CERCLA or Section 3007 (a) of RCRA or, State or Local equivalent requests; and \-- 4. Not operated or owned by any person or entity in bankruptcy or, otherwise financially insolvent. I. PROFESSIONAL LIABILITY: Based upon or arising out of professional services rendered or failed to be rendered by the Named Insured or others for whom the Named Insured is legally liable, including, but not limited to, recommendations, opinions or strategies rendered for architectural, consulting, design or engineering work, such as drawings, designs, maps, reports, surveys, change orders, plan specifications, assessment work, remedy selections, site maintenance, equipment selection, or related construction management, supervisory, inspection or engineering services. However, this Exclusion does not apply to: 1) any Claims alleging liability against the Named Insured on the basis of improper supervision or lack of supervision of any sub - contractors performing Covered Operations; or 109168 (9/11) PAGE 2 OF 6 C15025 ENDORSEMENT °NO a CONTINUED 2) Construction means, methods, techniques setluerices and procedures in connection with Covered Operations performed by or on behalf of the Named Insured in the capacity of a construction contractor. M. INSURED VS. INSURED: Based upon or arising out of any Claim brought by any Insured against any other Insured. This exclusion does not apply to Claims by the first Named Insured identified in Item 1. of the Declarations Page against any other Insured. 3. Section II. EXCLUSIONS, Paragraph N. OWNED PROPERTY is deleted in its entirety. 4. Section V. CONDITIONS, Paragraph 1. SOLE . AGENT, Paragraph K. SUBROGATION and Paragraph M. CANCELLATION are deleted in their entirety and replaced with the following: I. SOLE AGENT The first Named Insured identified in Item 1. of the Declarations Page shall act for and be responsible for all of the Insureds with respect to the following items: 1. Giving and receiving hotice of cancellation or non - renewal; 2. Payment or return of premium; 3. Payment of any deductible or reimbursement for deductible amounts advanced by the Company; 4. Receipt and acceptance of any endorsement issued to form a part of this Policy; and 5. Receipt of and giving all communications regarding the policy from and to the Company. K. SUBROGATION If there is a payment made by the Company under this Policy, the Company shall be subrogated to all the Insured's rights of recovery against any person or organization. The Insured shall cooperate with the Company and do whatever is necessary to secure these rights. The Insured shall do nothing after a Loss to waive or prejudice such rights. Any recovery as a result of subrogation proceedings arising out of payment of Loss under this Policy (net of expenses incurred in making such recovery) shall accrue first to the Insured to the extent of any payment in excess of the limit of coverage of the Policy, then pro -rata to the Insured and the Company in proportion to the amount each actually paid as a result of judgment, settlement or defense of a Claim or Emergency Response Costs. Notwithstanding anything to the contrary in this Condition K., the Company hereby expressly waives any rights of subrogation against an entity where such right has been waived in writing by the Insured prior to a Claim or Emergency Response Costs. M. CANCELLATION This Policy may be cancelled by the Named Insured by surrender thereof to the Company or any of its authorized agents or by mailing to the Company written notice stating when thereafter the cancellation shall be effective. This Policy may be cancelled by the Company only for the reasons stated below by mailing to the Named Insured at the address shown in the Policy, written notice stating when not less than ninety (90) days (ten (10j days for nonpayment of premium) thereafter such cancellation shall be effective. Proof of mailing of such notice shall be sufficient proof of notice. 1. Material misrepresentation by the Insured. 109168 (9/11) PAGE 3 OF 6 C15025 ENDORSEMENTyNO K CONTINUED wff 2. The Insured's failure to comply with the `material {term ed s, conditions or contractual obligations under this Policy, including failure to pay any premium or Ductible when due. However, the Insured shall have the - ability, within the first thirty (30) days (ten (10) days- foih non payment of premium) of the ninety (90) day notice period stated above, to cure such failure to comply'% with the material terms, conditions or contractual obligations. The determination of whether or "not the Insured has cured any such failure is within the sole discretion of the Company. 3. A change in Covered Operations that materially increases a risk covered under this Policy. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the Policy Period. Delivery of such written notice either by the Named Insured or by the Company shall be equivalent to mailing. If the Named Insured cancels the Policy, earned premium shall be computed in accordance with the customary short rate table and procedure after applying the minimum premium earned based on the following schedule: Inception Date: Minimum Premium Earned 25% End of Year One: Minimum Premium Earned 100% If the Company cancels, earned premium shall be computed pro rata after applying the minimum premium earned based on the schedule above. Premium adjustment may be either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. 5. Section VI. DEFINITIONS, Paragraph A. Bodily Injury, Paragraph B. Claim, Paragraph F. Covered Operations, Paragraph K. Insured, Paragraph U. Policy Period, Paragraph V. Pollution Conditions, Paragraph W. Property Damage, Paragraph Y. Restoration Costs, and Paragraph Z. Transportation are deleted in their entirety and replaced with the following: A. Bodily Injury means: physical injury, sickness or disease sustained by any person, including death resulting therefrom. and solely with respect to this item A.1, any accompanying medical monitoring; or 2. mental anguish, emotional distress, or shock. B. Claim means a written demand received by an Insured seeking a remedy and alleging liability or responsibility on the part of an Insured for Bodily Injury, Property Damage or Environmental Damage. F. Covered Operations means those activities performed on behalf of the first Named Insured indicated in Item 1. of the Declarations Page at the Specified Project scheduled above on the first page of this Endorsement. Covered Operations includes Completed Operations and Transportation. K. Insured means: 1. The first Named Insured, (the owner) but solely as respects to liability arising out of the Covered Operations performed on behalf of the first Named Insured indicated in Item 1. of the Declaration Page of this Policy at the specified project scheduled on the first page of this Endorsement; 2. Any person who is or was a director, officer, partner, member or employee of the first Named Insured indicated in Item 1. of the Declarations Page of this Policy while acting within the scope of his or her duties as such, but solely as respects liability arising out of the Covered Operations performed by or on behalf of such first Named Insured at the specified project scheduled on the first page of this Endorsement; 109168 (9/11) PAGE 4 OF 6 C15025 ENDORSEMENT, „N ".Ot,. CONTINUED 3. All contractors and sub - contractors at aft tiers - but "only with respect to Covered Operations performed on behalf of the first Named Insured indicatedrrin,lf 0. of the Declarations Page of this Policy at the specified project scheduled on the first page of this3E`ndorsement; '0' IRA:, " -AMY ��0• 4. Joint ventures in which the Insured is named as 'a co- venturer but only with respect to Covered Operations performed on behalf of the first Named Insured indicated in Item 1. of the Declarations Page of this Policy at the specified project scheduled on the first page of this Endorsement; 5. A Limited Liability Company in which the Insured is a member and all members but only with respect to Covered Operations performed on behalf of the first Named Insured indicated in Item 1. of the Declarations Page of this Policy at the specified project scheduled on the first page of this Endorsement; and 6. Property owners, managers, project lenders or financiers of the specified project scheduled on the first page of this Endorsement that the first Named Insured indicated in Item 1. of the Declarations Page is required under a written contract to add as additional Insured(s) to this Policy, but only with respects to Loss arising out of Covered Operations performed by or on behalf of the first Named Insured as indicated in Item 1. of the Declarations Page of this Policy. This Policy does not apply to Bodily Injury, Property Damage or Environmental Damage arising out of the sole negligence or willful misconduct of the Insured(s) as defined in subparagraphs 1., 2. and 6. above. As respects to the coverage afforded the Insured(s), this insurance is primary and non contributory, and our obligations are not affected by any other insurance carried by such Insured(s) whether primary, excess, contingent, or on any basis. U. Policy Period means: 1. Except as set forth in Paragraph 2. below, the period set forth in Item 2. of the Declarations, or any shorter period arising as a result of cancellation of this Policy; and 2. In the event that construction has been delayed at the Scheduled Project and if requested in writing by the first Named Insured indicated in Item 1. of the Declarations Page, an additional six (6) months may be added to the originally noted Policy Period at no additional premium, subject to increases in construction values not to exceed 10% of the original construction values that were reported in the application. This Policy Period extension request is subject to the construction delay having been within the original scope of work and not due to additional work being added. 3. Solely with respect to Completed Operations, the period beginning on the Inception Date and ending on 4/30/2020 (12:01 AM standard time at the address of the Named Insured in Item 1. of the Declarations). V. Pollution Conditions means the discharge, dispersal, release or escape of any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, low-level radioactive material, electromagnetic fields, medical waste and waste materials into or upon land, or any structure on land, the atmosphere or any watercourse or body of water, provided such conditions are not naturally present in the environment in the concentration or amounts discovered, unless such natural condition(s) are released or dispersed as a result of the performance of Covered Operations, and such release or dispersal is unexpected and unintended from the standpoint of the Insured. Pollution Conditions shall include Microbial Matter and Legionella pneumophila in any structure on land and the atmosphere contained within that structure. Pollution Conditions shall also include the discharge, dispersal, release or escape of silt or sedimentation that originated at and migrated from a job site. 109168 (9/11) PAGE 5 OF 6 C15025 ENDORSE NIENTN:O. CONTINUED W. Property Damage means:��Fti'Ri x 1. Physical injury to or destruction of (a) tangible propeity vf,- parties other than the Insured, including the �, resulting loss of use and diminution in value thereofor jb) Tangible property of the first Named Insured x >. identified in Item 1, of the Declarations Page including fie resulting loss of use thereof; 2. Loss of use, but not diminution in value, of (a) tangible property of parties other than the Insured or (b) tangible property of the first Named Insured identified in Item 1. of the Declarations Page, that has not been physically injured or destroyed; or 3. Natural Resource Damage. Property Damage does not include Environmental Damage. Y. Restoration Costs means reasonable and necessary costs incurred by the Insured with the Company's written consent, which consent shall not be unreasonably withheld or delayed, to repair, replace or restore real or personal property to substantially the same condition it was in prior to being damaged during work performed in the course of incurring Clean -Up Costs arising from Environmental Damage: Restoration Costs shall not include costs associated with improvements or betterments, except to the extent that such improvements or betterments of the damaged property entail the use of materials which are environmentally preferable to those materials which comprised the damaged property. Such environmentally preferable material must be certified as such by an applicable independent certifying body, where such certification is available, or, in the absence of such certification, based on the judgment of the Company in its sole discretion. Z. Transportation means the use of a Motor Vehicle, aircraft, rolling stock, or watercraft while in due course of transit from the time of movement from its point of origin to its final destination, including loading or unloading onto or from the Motor Vehicle, aircraft, rolling stock or watercraft. 6. Solely with respect to Pollution Conditions arising out of or associated with Microbial Matter or Legionella . pneumophila, Section I. INSURING AGREEMENTS, 1. COVERAGES, COVERAGE B - EMERGENCY RESPONSE COSTS is deleted in its entirety. 7. Solely with respect to Pollution Conditions arising out of or associated with Microbial Matter, Section VI. DEFINITIONS, Paragraph H. Environmental Damage is deleted in its entirety and replaced with the following: H. Environmental Damage means physical damage to buildings or other structures caused by Pollution Conditions and giving rise to Clean -Up Costs. Environmental Damage does not include Property Damage. All other terms, conditions, and exclusions shall remain the same. AUTHORIZED REPRESENTATIVE or countersignature (in states where applicable) 109168 (9/11) PAGE 6 OF 6 C 15025 1. MEMORANDUM TO: Mayor and City Council FROM: Richard Coulombe, CGCS, Assistant Golf Superintendent THRU: . Steve Aitken, CGCS, Director of Golf DATE OF MEMO: May 21, 2012 MEETING DATE: May 29, 2012 RE: Fresh Water Pump Station Improvements Project / Contract Award REQUEST OF COUNCIL: Staff is requesting Council approve the selection of Dale's Quality Construction Services for the Fresh Water Pump Station Improvements Project. BACKGROUND: In September, 2005 Council approved the installation of the Reused Water Project and Golf Irrigation System. It was determined at that time we would not apply reused water on our greens. This pump station improvement will allow us to continue to apply Fresh water to our greens after the reused water system is up and running. DISCUSSION: Golf greens take meticulous care and musi be in excellent condition at all times. The greens on a golf course are the most important aspect regarding playability of the game. Nutrient control is a key element in offering the players a smooth/fast putting surface. Reused Water has nutrient levels that are too high for golf greens. Applications of reused water on our greens would cause excessive growth. This would negatively impact the Aspen Golf Club's overall playability and reduce the current excellent playing conditions we now offer our customers. FINANCIAL/BUDGET IMPACTS: The Fresh Water Pump Station Improvements Project followed the bid process and bids were received on May 15, 2012. Dale's Quality Construction Services.was low bidder at $162,447. The council approved budget for this project is $225,000 which is part of the 2012 Parks Bond. Page 1 of 2 RESOLUTION # S (Series of 20.12) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT FOR FRESH WATER PUMP STATION IMPROVEMENTS BETWEEN THE CITY OF ASPEN AND DALE'S QUALITY CONSTRUCTION SERVICES LLC. 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 fresh water pump station improvements, between the City of Aspen and Dale's Quality Construction Services LLC, 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 fresh, water pump station improvements, between the City of Aspen and Dale's Quality Construction Services LLC, 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 291h day of May 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, May 29, 2012. Kathryn S. Koch, City Clerk �F ,t The City of nsoen CONTRACT FOR CONSTRUCTION OtvAttoinev 's Office THIS AGREEMENT, made and entered into on May 29, 2012, by and between the CITY OF ASPEN, Colorado, hereinafter called the "City ", and DALE'S QUALITY CONSTRUCTION SERVICES LLC, hereinafter called the "Contractor ". WHEREAS, the City has caused to be prepared, in accordance with the law, specifications and other Contract Documents for the work herein described, and has approved and adopted said documents, and has caused to be published, in the manner and for the time required by law, an advertisement, for the project: 2012 -061 FRESH WATER PUMP STATION IMPROVEMENTS, and, WHEREAS, the Contractor, in response to such advertisement, or in response to direct invitation, has submitted to the City, in the manner and at the time specified, a sealed Bid in accordance with the terms of said Invitation for Bids; and, WHEREAS, the City, in the manner prescribed by law, has publicly opened, examined, and canvassed the Bids submitted in response to the published Invitation for Bids therefore, and as a result of such canvass has determined and declared the Contractor to be the lowest responsible and responsive bidder for the said Work and has duly awarded to the Contractor a Contract For Construction therefore, for the sum or sums set forth herein; NOW, THEREFORE, in consideration of the payments and Contract for Construction herein mentioned: The Contractor shall commence and complete the construction of the Work as fully described in the Contract Documents. 2. The Contractor shall furnish all of the materials, supplies, tools, equipment, labor and other services necessary for the construction and completion of the Work described herein. 3. The Contractor shall commence the work required by the Contract Documents within seven (7) consecutive calendar days after the date of "Notice To Proceed" and will complete the same by the date and time indicated in the Special Conditions unless the time is extended in accordance with appropriate provisions in the Contract Documents. 4. The Contractor agrees to perform all of the Work described in the Contract Documents and comply with the terms therein for a sum not to exceed ONE HUNDRED SIXTY TWO THOUSAND FOUR HUNDRED FORTY SEVEN ($162,447.00) DOLLARS or as shown on the BID proposal (attachment A). CC1- 971.doc Page 1 "CC1 5. The term "Contract Documents" means and includes the documents listed in the City of Aspen General Conditions to Contracts for Construction (version GC97 -2) and in the Special Conditions. The Contract Documents are included herein by this reference and made a part hereof as if fully set forth here. 6. The City shall pay to the Contractor in the manner and at such time as set forth in the General Conditions, unless modified by the Special Conditions, such amounts as required by the Documents. 7. This Contract for Construction shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein or in the Contract Documents, this Contract for Construction shall be subject to the City of Aspen Procurement Code, Title 4 of the Municipal Code, including the. approval requirements of Section 4 -08 -040. This agreement shall not be binding upon the City unless duly executed. by the City Manager or the Mayor of the City of Aspen (or a duly authorized official in his /her absence) following a resolution of the Council of the City of Aspen authorizing the Mayor or City Manager (or a duly authorized official in his /her absence) to execute the same. 8. This agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Contractor respectively and their agents, representatives, employees. Successors, assigns, and legal representatives. Neither the City nor the Contractor shall have the right to assign, transfer or sublet his or her interest or obligations hereunder without the written consent of the other party. 9. This agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom the Contractor or the City may assign this Contract for Construction in accordance with the specific written consent, any rights to claim damages or to bring suit, action or other proceeding against either the City or the Contractor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 10. No waiver of default by either party of any terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 11. The parties agree that this Contract for Construction was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be kept exclusively in the courts of Pitkin County, Colorado. 12. In the event that legal action is necessary to enforce any of the provisions of this Contract for Construction, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 13. This Contract for Construction was reviewed and accepted through the mutual efforts of the parties hereto, and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of this Contract for Construction. CC1- 971.doc Page 2 *'CC1 14. The undersigned representative of the Contractor, as an inducement to the City to execute this Contract for Construction, represents that he /she is an authorized representative of the Contractor for the purposes of executing this Contract for Construction and that he /she has full and complete authority to enter into this Contract for Construction for the terms and conditions specified herein. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract for Construction on the date first above written. ATTESTED BY: RECOMMENDED FOR APPROVAL City Engineering Department CITY OF ASPEN, COLORADO By: Title: APPROVED AS TO FORM: By: City Attorney CONTRACTOR: 15y: Z Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate title. CC1- 971.doc Page 3 " "CC1 CERTIFICATE OF INCORPORATION (To be completed if Contractor is a Corporation) STATE OF ) ) SS. COUNTY OF ) On this day of , 20 , before me appeared , to me personally known, who, being by me first duly sworn, did say that s /he is of and that the seal affixed to said instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said deponent acknowledged said instrument to be the free act and deed of said corporation. WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above written. Notary Public Address My commission expires: CC1- 971.doc Page 4 * *CC1 Certification and Supplemental Conditions to Contract for Services - Conformance with 48- 17.5.101, et seq. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bill 06 -1343 that added a new article 17.5 to Title 8 of the Colorado Revised Statutes entitled "Illegal Aliens — Public Contracts for Services." This new law prohibits all state agencies and political subdivisions, including the City of Aspen, from knowingly employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. The new law also requires that all contracts for services include certain specific language as set forth in the statutes. This Certification and Supplemental Conditions has been designed to comply with the requirements of this new law. Applicability. The certification and supplemental conditions set forth herein shall be required to be executed by all persons having a public contract for services with the City of Aspen. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Contractor" means a person having a public contract for services with the City of Aspen. "Public Contract for Services" means any type of agreement, regardless of what the agreement may be called, between the City of Aspen and a Contractor for the procurement of services. It specifically means the contract or agreement referenced below. "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. PURSUANT TO SECTION 8- 17.5 -101, C.R.S., et. seq.: By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. The Public Contract for Services referenced below is hereby amended to include the following terms and conditions: 1. Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor 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. Contractor 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 Contractor 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. 4. Contractor 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. 5. If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: (i) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) 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 illegal alien; except that Contractor 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. 6. Contractor 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. 7. If Contractor 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 Contractor's violation of Subsection 8- 17.5 -102, C.R.S. Public Contract for Services: Contractor�l.-s Dua /�.v�cr� rva�s� GG Title: JPW- saved: 5/18/2012- 867 -M: \city \cityatty \contract \forms \certification - hb- 06- 1343.doc �a. MEMORANDUM TO: Mayor and Aspen City Council FROM: Sara Adams, Senior Planner APr- THRU: Chris Bendon, Community Development Director RE: 720 East Hyman Avenue, the Aspen Athletic Club (Block 104, Lots Q, R, and S) - First Reading of Ordinance #J3 Series of 2012 - AspenModern negotiation for Landmark Designation and benefits, Subdivision, Growth Management for the creation of a free market residential unit and for the development of affordable housing. Second Reading is scheduled for June 11, 2012. MEETING DATE: May 29, 2012 REQUEST OF COUNCIL: City Council is asked to grant first reading of Ordinance # _, Series of 2012 for an AspenModern negotiation for 720 E. Hyman Avenue, in addition to reviewing Growth Management for the creation of a new free market residential unit and Subdivision. SUMMARY: 720 E. Hyman Avenue, aka the Aspen Athletic Club, is located on the east end of downtown at the corner of Hyman Avenue and Original Street on a 9,000 square feet lot in the Mixed Use Zone District. The property is included on the Aspen Modern map. The applicant proposes to voluntarily designate the existing Robin Molny designed building in exchange for benefits through the AspenModern program. The applicant proposes to convert a portion of the second floor office space to an affordable housing Photograph 1: 720 E. Hyman Avenue unit and to convert the third floor office space into two free market residential units. The majority of the changes are internal to the building; however a few minor exterior changes are proposed. A 675 square feet roof deck and stairway access is proposed in the center of the roof, a new skylight on the roof; replacement of plywood "hoppers" with glazing; and the addition of removable horizontal brise soleiel (a screen usually louvered placed on the outside of a building to shield windows from direct sunlight) above the windows. HPC reviewed these changes on May 23, 2012. Staff shall provide a summary of their decision during first reading. 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 1 of 8 BACKGROUND: The Aspen Athletic Club was built in 1976 by local Aspen architect Robin Molny, with Art Yuenger assisting with construction drawings and some design details. Molny is a significant local architect who was part of the local Frank Lloyd Wright trained constituent. Similar to other Wrightian trained local architects, Molny worked for Fritz Benedict when he first arrived in town. In his practice, he designed the Mason and Morse Building on Hyman Avenue (designated in 2012); the Hearthstone House on Hyman Avenue (designated in 2006), the pedestrian malls and local area residences including a home that , was listed in the 1975 Architecture Record publication. The existing building is located in the Mixed Use Zone District. It comprises 5 floors with 3' floors above grade and is entirely commercial. According to the current Land Use Code the building greatly exceeds the FAR allotment for commercial uses (the maximum by -right is 6,750 square feet and the existing condition is 17,026 square feet) and it is over the height limit (limit is 28 feet up to 32 feet, and the existing condition is between 33 feet 3 inches and 35 feet 6 inches). HPC reviewed the project on May 23, 2012 to make a recommendation to Council regarding landmark designation and reviewed Minor Development for minor exterior alterations. On May 23rd, HPC is asked to review setback variance for the proposed brise soleil along the front and side facades. Due to the short time frame available for AspenModern projects, the Council packet is due prior to HPC's hearing. Staff shall convey HPC's determination during first reading and provide the minutes from HPC's hearing in the second reading packet. As part of the AspenModern review Council is asked to grant Subdivision Review and Growth Management Review. LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approvals from City Council. As noted, many of the reviews below typically fall to either the P &Z or HPC for. final review or a recommendation. AspenModern allows the consolidation of reviews at City. Council which provides Council with the entire proposal for review. ® AspenModern Ninety-DqyNegotiation (Section 26.415.025(C)(1)) for preservation benefits in exchange for historic landmark designation. City Council is the final review authority after considering a recommendation from the Historic Preservation' Commission. The ninety days expires on February 29, 2012. ® Designation of Historic Properties (Section 26.415.030(C) for landmark designation of the Aspen Athletic Club. City Council is the final review authority after considering a. recommendation from the Historic Preservation Commission. o Subdivision Review (Section 26.480) this is a technical subdivision that the Land Use Code requires for mixed use properties to divide the building into separate interests. City Council is the final review authority after considering •a recommendation from the Planning and Zoning Commission. AspenModern allows the consolidation of reviews at 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 2 of 8 City Council; as such the P &Z has not reviewed the application for a recommendation of Subdivision. Growth Management Review for new free market residential units within a mixed use building (Section 26.470.080(2) for the creation of a new free market residential unit. This is a Major Growth Management Review at the Planning and Zoning Commission. AspenModern allows City Council to have review authority over other Board's purview. City Council is the final review authority. Growth Management Review for the development of affordable housing (Section 26.470.070(4) for the creation of an onsite affordable housing unit. This is a Minor Growth Management Review at the Planning and Zoning Commission. AspenModern allows City Council to have review authority over other Board's purview. City Council is the final review authority. PROJECT SUMMARY: The proposed project is mostly interior changes to the existing building that includes converting a portion of the second floor commercial space to an affordable housing unit and converting the third floor commercial space to two free market residential snits. A new rooftop deck is proposed that meets the requirements of the Code. The, affordable housing unit meets the mitigation requirements for the 2,750 square feet net livable market residential unit. The 2,500 square feet net livable free market residential unit is exempt from affordable housing mitigation due to the building's landmark designation that is part of the application. The proposed changes bring the building into closer Code conformance with the allowable commercial floor area allotment; however the proposed changes exceed the allowable free market residential floor area allotment for the Mixed Use Zone District. The program is: Sub - basement level: mechanical and commercial space (gym) Basement level: commercial space (gym) First level: commercial space (office) and open atrium Second level: office and affordable housing unit Third level: two free market residential units Roof: a rooftop deck and a new skylight 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 3 of 8 DIMENSIONAL REQUIREMENTS: Table 1: Dimensional Table 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 4 of 8 MU zone district Existing dimensions Proposed dimensional requirements requirements 33 ft. 3 in. at the front of the No change, with the Maximum 28 ft. up to 32 ft. through property and 35 ft. 6 in. at exception of a slight height height commercial design review. the alley increase of less than 1 ft.for the new rooftop skylight Maximum Allowable 2:1 or 18,000 sq. ft. 1.89:1 or 17,026 sq. ft. 1:89:1 or 17,036 sq. ft. Floor Area: Maximum 0.75:1 or 6,750 sq. ft. Commercial (up to 1:1 or 9,000 sq. ft. 1.89:1 or 17, 026 sq. ft. 1.01:1 or 9,061 sq. ft. Floor Area: through Special Review) Maximum Net Leasable n/a 21,474 sq. ft. net leasable 15,754 sq. ft. net leasable Commercial commercial area commercial area Area: 0.5:1 or 4,500 sq. ft. Maximum (up to 0.75:1 if affordable Free Market housing equal to 100% of 0 sq. ft. 0.78:1 or 7,014 sq. ft. Residential the free market residential Floor Area: floor area is developed on the same parcel) 5,250sq. ft. total: Maximum 2,750 sq. ft. — Unit 1(with 1 Residential 2,000 sq. ft. net livable, up 0 sq. ft. TDR landed) Net Livable to 2,500 sq. ft. with TDR and 2,500 sq. ft. — Unit 2 Area: (with 1 TDR landed) Free Market Residential n/a 0 2 Units: Affordable Housing No limit 0 0.11: 1 or 961 sq. ft. Allowable Floor Area Affordable Housing net No limit 0 825 sq. ft. livable area Minimum 1 space /1,000 sq. ft. 3 new spaces required for the Off - Street commercial net leasable; 3 residential units. Request Parking and 1 space per residential waiver of required $90,000 Spaces: unit. Ability to pay cash cash in lieu payment. in lieu payment by right. Table 1: Dimensional Table 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 4 of 8 ASPEN MODERN NEGOTIATION: The applicant requests the following incentives in exchange for landmark designation: 1) Grant 250 square feet of net livable area (NLA) to be added to one of the free market residential units to allow it to exceed the maximum residential unit size cap after the addition of a TDR. There are two free market residential units (Unit A and Unit B) proposed on the third floor. The Mixed Use Zone District has a 2,000 square feet (sf) NLA cap for free market residential units with the ability to increase to 2,500 sf NLA by landing 1 TDR per residence. The applicant proposes to purchase and land 2 transferrable development rights (TDRs) - 1 per residence for each Unit to meet the 2,500 sf NLA cap allowed .by Code. The AspenModern request is to allow one of the Units to further exceed the cap by 250 sf NLA for n total of 2.750 sf NLA. Free Market Residential Units Maximum unit size cap ( sf NLA) Land 2 TDRs, one per residence (sf NLA) AspenModern request for 250 sf NLA Unit A 12,000 2,500 2,750 Unit B 12,000 12,500 2,500 Table 2: Free Market Residential Units 2) Ability to exceed the allowable floor area ratio for free market residential use. The increase in the free market residential unit sizes exceeds the maximum floor area ratio of 0.5:1 allowed in the Mixed Use Zone District. The maximum allowed free market residential floorarea is 4,500 sf and the proposed floor area is 7,014 sf (0.78:1). The overall building complies with the total overall maximum allowable floor area ratio of 2:1. The uses are broken down below: 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 5 of 8 Table 3: Existing vs. Proposed Floor Area by Use 3) Waiver of $90,000 parking cash -in -lieu fee for 3 parking spaces. The Code requires one parking space per residential unit with the ability to pay cash-in- lieu for the parking spaces by right at $30,000 per space. The 3 new residential units (2 free market units and 1 affordable housing unit) require 3 spaces for a total of $90,000. The cash in lieu fee is used for parking and transportation related construction or improvements. Transportation and Parking Departments are not in favor of waiving this fee. 4) Slight height variance for a new skylight on the roof. The applicant proposes a new slightly convex skylight on the roof. The rounded form allows positive drainage for snow and water from the skylight. The property is already over the height limit, so the new skylight extends above the height limit. The applicant will provide the specific height of the skylight at the meeting — the skylight will be 1 ft. or less in height. STAFF RESPONSE: AspenModern Negotiation and Landmark Designation: The designation criteria are stated in Exhibit A and the integrity score sheets, which evaluate the physical changes to the building over time, is included as Exhibit B. Staff is supportive of landmark designation of 720 East Hyman Avenue and finds that all of the designation criteria are met. The applicant requests 4 incentives in exchange for landmark designation, 2 of which relate to the free market residential component, 1 relating to a waiver of the parking requirement and 1 1 The amount of existing commercial floor area is an existing non- conformity that is allowed to be maintained or reduced. The proposal is to bring the commercial component closer to compliance by removing almost 8,000 square feet of floor area. A variance is not required for the commercial floor area. 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 6 of 8 Difference Amount the Use Allowable floor area in Mixed Existing floor Proposed floor between Existing and Use is over the allowable Use Zone area (sf) area (sf) Proposed floor area (sf) District (sf) floor area (sf) Commercial 0.75:1 or 6,750 17,026 9,061 (7,965) 2,3111 Free Market Residential 0.5:1 or 4,500 0 7,014 7,014 2,514 Affordable Housin No limitation 0 961 961 - Overall Total 11 2:1 or 18,090_Jj 17,026 17,036 10 Table 3: Existing vs. Proposed Floor Area by Use 3) Waiver of $90,000 parking cash -in -lieu fee for 3 parking spaces. The Code requires one parking space per residential unit with the ability to pay cash-in- lieu for the parking spaces by right at $30,000 per space. The 3 new residential units (2 free market units and 1 affordable housing unit) require 3 spaces for a total of $90,000. The cash in lieu fee is used for parking and transportation related construction or improvements. Transportation and Parking Departments are not in favor of waiving this fee. 4) Slight height variance for a new skylight on the roof. The applicant proposes a new slightly convex skylight on the roof. The rounded form allows positive drainage for snow and water from the skylight. The property is already over the height limit, so the new skylight extends above the height limit. The applicant will provide the specific height of the skylight at the meeting — the skylight will be 1 ft. or less in height. STAFF RESPONSE: AspenModern Negotiation and Landmark Designation: The designation criteria are stated in Exhibit A and the integrity score sheets, which evaluate the physical changes to the building over time, is included as Exhibit B. Staff is supportive of landmark designation of 720 East Hyman Avenue and finds that all of the designation criteria are met. The applicant requests 4 incentives in exchange for landmark designation, 2 of which relate to the free market residential component, 1 relating to a waiver of the parking requirement and 1 1 The amount of existing commercial floor area is an existing non- conformity that is allowed to be maintained or reduced. The proposal is to bring the commercial component closer to compliance by removing almost 8,000 square feet of floor area. A variance is not required for the commercial floor area. 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 6 of 8 relating to a height variance for a skylight. The project meets Code requirements for affordable housing mitigation. Staff sees great value in the voluntary designation and is supportive of the AspenModern requests. In Staff's opinion the request to change the use of the second and third floors to accommodate residential use is more consistent with the purpose of the Mixed Use Zone District and brings the property into closer compliance with commercial floor area requirements by reducing the commercial component. The proposed changes are mostly internal to the building and do not impact the historic significance of,the architecture. The size of the free market residential units does not add mass or height to the existing building, which is typically a concern on other AspenModern projects. In addition, the applicant commits to purchase TDRs to reduce the magnitude of the AspenModern requests. Although the individual allowance for free market residential floor area is being requested to increase from 0.5:1 to 0.78:1, the project is still within the overall allowable Floor Area Ratio for the site. Staff is supportive of the waiver for the parking requirement. There is no onsite parking available on the site and, considering the scope of the project, no ability to add parking without removing a portion of the building. The applicant requests a waiver of the parking cash in lieu fee of $90,000 which is a policy decision for Council. The height request is a policy decision for Council. The new skylight is central to the building and is so small that it will not be visible from the street. Subdivision: The Subdivision criteria are stated in Exhibit C. Staff is supportive of the technical subdivision to create separate legal interests in one parcel. Staff finds that the review criteria are met. Growth Management for new free market residential units within a mixed use building and Development of Affordable Housing: The review criteria are stated in Exhibit D. As a landmark, the project is only required to mitigation for the larger of the 2 new free market residential units. All landmark properties are eligible to create 1 free market unit without affordable housing mitigation. The project includes an 825 sf NLA affordable housing unit that is proposed to be a Category 4, one bedroom rental. The Aspen/Pitkin County Housing Authority ( APCHA) recommends that the onsite housing unit be denied and that the applicant provide housing credits to fulfill the mitigation requirement. APCHA stated that if the unit is approved a Category 3 or 4 "for- sale" unit is requested. The affordable housing unit meets Land Use Code requirements as outlined in Exhibit D which promote mixed income buildings by permitting onsite housing units to fulfill mitigation requirements. Staff finds that the review criteria are met. REFERRAL AGENCY COMMENTS: The City Engineer, Fire Marshal, Water /Utilities Department, Aspen Sanitation District, Parking Department, Transportation Department, Building Department, Housing Department, 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 7 of 8 Environmental' Health Department and the Parks Department were notified of the application. The City Engineer, Parking Department, Transportation Department, Building Department, Parks Department and Housing Department all commented on the application. Applicable requirements have been included as conditions of approval when appropriate. RECOMMENDATION: Staff finds that the proposed AspenModern negotiation and associated land use reviews are appropriate in exchange for the landmark designation of 720 East Hyman Avenue. Ensuring that the important 1970s buildings designed by locally significant architects are preserved for residents and visitors to experience is tantamount to Aspen's story. RECOMMENDED MOTION ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to approve Ordinance No.a, Series of 2012 on first reading." CITY MANAGER COMMENTS: EXHIBITS: EXHIBIT A— Landmark Designation Criteria EXHIBIT B — Integrity Score sheet EXHIBIT C — Subdivision Review Criteria EXHIBIT D — Growth Management Review for new free market residential units within a mixed use building Review Criteria and for the development of affordable housing Review Criteria EXHIBIT E — Aspen/Pitkin County Housing Authority referral memo dated May 7, 2012 EXHIBIT F - Application 720 East Hyman Avenue AspenModern Negotiation — First Reading May 23, 2012 Page 8 of 8 ORDINANCE #j3 (Series of 2012) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING HISTORIC LANDMARK DESIGNATION, SUBDIVISION, GROWTH MANAGEMENT REVIEW, AND BENEFITS THROUGH THE ASPENMODERN PROGRAM, AND A SITE SPECIFIC DEVELOPMENT PLAN FOR THE PROPERTY LOCATED AT 720 EAST HYMAN AVENUE, LEGALLY DESCRIBED AS THE ASPEN ATHLETIC CLUB BUILDING CONDOMINIUMS, LOTS Q, R AND S, BLOCK 104, CITY AND TOWNSITE OF ASPEN, COLORADO . PARCEL ID NUMBERS: 2737 - 182 -11 -008 through 2737 - 182 -11 -031, and 2737 - 182 -11 -801. WHEREAS, the applicant, John Martin, represented by Charles Cunniffe Architects, submitted an application, 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 property located at 720 East Hyman Avenue, legally described as The Aspen Athletic Club Building Condominiums, Lots Q, R and S Block 104); and WHEREAS, 720 East Hyman Avenue is included on the Aspen Modern Map; and WHEREAS, the applicant submitted a letter dated March 7, 2012 requesting voluntary landmark designation in exchange for specific benefits through the AspenModern negotiation; and WHEREAS, pursuant to §26.415.025.C(1), the ninety day AspenModern negotiation commenced on March 7, 2012; 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 May 23, 2012; and WHEREAS, at their regular meeting on May 23, 2012, the HPC considered the application; found that 720 East Hyman Avenue was a "best" example of Organic /Wrightian style 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 ") approve Historic Landmark Designation, requested benefits and fee waivers as stated in HPC Resolution numbered_, Series of 2012; and 720 E. Hyman Avenue,- AspenModern negotiation Ordinance #� Series of 2012 Page 1 of i 3 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 WHEREAS, the property owner requests voluntary Landmark Designation - §26.415.030(C), AspenModern; Subdivision review - §26.480.040(C) Subdivisions; Growth Management review - §26.470.060(3), §26.470.070(4), and §26.470.080(2); Change in Use of historic landmark sites and structures; Development of Affordable Housing and New free- market residential units within a multi family or mixed use project; all to be consolidated with the AspenModern ninety -day negotiation process and reviewed by City Council; and WHEREAS, in addition to Historic Landmark Designation, Subdivision, and Growth Management, the applicant had identified preservation incentives that are requested as part of the AspenModern negotiation process in a letter dated March 7, 2012. Those incentives requested include: the ability to construct a 2,750 square feet floor area free market residential unit; ability to increase the free market allowable floor area to 0.78:1 or 7,014 square feet of floor area; a waiver of the onsite parking requirement and a waiver of the parking cash in lieu payment; and WHEREAS, the Community Development Department performed an analysis of the application including Landmark Designation, Subdivision Review, and Growth Management Review 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: Approvals: Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves Historic Designation, Subdivision, Growth Management Review and a site specific development plan subject to the conditions described herein. Section 2: Historic Landmark Designation Historic landmark designation is granted for the property located at 720 East Hyman Avenue (the Aspen Athletic Club Building Condominiums, Lots Q, R, and S, Block 104). 720 E. Hyman Avenue - AspenModern negotiation Ordinance #_, Series of 2012 Page 2 of 13 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 3: Subdivision Pursuant to the procedures and standards set forth in Title 26 of the City of Aspen Municipal Code, the Aspen City Council hereby approves Subdivision of the property located at 720 East Hyman Avenue (the Aspen Athletic Club Building Condominiums, Lots Q, R and S, Block 104) for a mixed use building that contains two free market residential units, one affordable housing unit, a commercial component and a rooftop deck. A final Subdivision Plat and Subdivision Agreement that meets the requirements of Land Use Code § 26.480, Subdivision, shall be recorded in the Pitkin County Clerk and Recorder's Office within 180 days of the receipt of a Certificate of Appropriateness for Major Development by the Historic Preservation Commission. Subdivision Agreement shall include at a minimum the following information: 1. An illustrative site plan of the project depicting the proposed improvement and the approved dimensional requirements. 2. Plan of any required grading and drainage improvements. 3. Approved planting for the right of way. 4. Encroachment license for the planter boxes. Section 4: Financial Assurances Before the Applicant is issued a Building Permit the Applicant shall provide to the Community Development Department the following: a. Cost Estimates. Applicant's General Contractor shall cause to be prepared, and certified as correct, cost estimates for all improvements or development for which a Building Permit is required. There are no public improvements associated with the project at this time. Any public improvements associated with the project that are discovered after the approval of this ordinance are subject to the requirements listed below. The cost estimates for the implementation and maintenance -of the planting in the right of way described herein at Section 13 shall be reviewed and approved by the Parks Department. The cost estimates for all other improvements and development in the Subdivision shall be reviewed and approved by the Building Department. Cost. estimates for the landscape plan (i.e. the planting in the right of way) shall be shown separately from the cost estimates for all other improvements and development of the Project. Owner shall be responsible for the implementation and maintenance of the landscape plan required by this Ordinance. b. Landscaping Guarantees. Pursuant to and in conformance with the requirements of § 26.480.070(C) & (D) and § 26.445.070 (C)(3) & (4) of the Aspen Municipal Code; and, in order to secure the performance of the obligations of the 720 E. Hyman Avenue - AspenModern negotiation Ordinance #_, Series of 2012 Page 3 of 13 Applicant to implement and maintain the Landscape Plan, Applicant shall provide a guarantee of no less than one hundred and twenty five percent (125 %) of the estimated cost of such Landscape Plan and Public Improvements, as determined and approved in subsection (a), above. The guarantee to implement and maintain the Landscape Plan and to complete Public Improvements shall be made by depositing with the City an irrevocable letter of credit with provisions as hereinafter set forth, or by providing such other security that may be acceptable to the City attorney. If an irrevocable letter of credit is used, the irrevocable letter of credit shall be retained by the City until satisfaction of Applicant's obligations under this Section or earlier released by the City. The letter of credit shall be issued by a financial institution doing business in Aspen, Colorado, or such other bank as shall be approved by the City; shall have an expiration date no earlier than two years after its date of issue; and shall provide that it may be drawn upon from time to time by the City in such amount or amounts as the City may designate as justified, such amounts not to exceed, in the aggregate, the amount of the letter of credit. Draws under any such letter of credit shall be by a certificate signed by the City Manager of the City of Aspen, or his designee, stating that the City is entitled to draw the specified amount under the terms of this Section. C. Other Improvements and Development. With respect to all other improvements or development within the Project, the Applicant shall provide evidence satisfactory to the Community Development Department and the City Attorney's Office that the Applicant has in place sufficient financing to accomplish and complete all the development for which a Building Permit is sought. Such financing may include, without limitation, a construction loan from an institutional lender or lenders and equity capital investments from the Applicant or third party investors. The City Attorney shall have sole discretion in determining if the proposed financing as advanced by the Applicant is sufficient to complete the development activity for which a Building Permit is sought. Section 5: Site Protection Fund The Applicant hereby commits and agrees that before any Building Permit (including demolition, access /infrastructure, and/or site preparation permits) is issued for the Project approved by this Ordinance, the Applicant shall deposit with Pitkin County Title, Inc. ( "Escrow Agent ") the sum of $25,000 in the form of cash or wired funds (the "Escrow Funds ") and will execute an Escrow Agreement and Instructions with the Escrow Agent which recites and agrees as follows: "In the event construction work on the Project shall cease for sixty (60) days or longer (`work stoppage') prior to a final inspection by the City of the work authorized by the Building Permit on the Project, then the City in its discretion may draw upon the Escrow Funds from time to time as needed for purposes of protecting and securing the Project site and improvements from damage by the elements and/or from trespass by unauthorized persons, and for purposes of improving the Project site to a safe condition such that it does not become an attractive nuisance or otherwise.pose a threat to neighbors or other persons." 720 E. Hyman Avenue - AspenModem negotiation Ordinance #_, Series of 2012 Page 4 of 13 The Escrow Funds or any 'remaining balance thereof shall be returned to Applicant upon completion by the City of a final inspection of the work authorized by the Foundation/Structural Frame Permit on the Project. Section 6: Cash Escrow for Site Enhancement Fund. Before the. issuance of a building permit, and as a condition of such issuance, the owner shall deposit with Stewart Title of Aspen, Inc. the sum of TWENTY FIVE THOUSAND DOLLARS AND NO /100THS ($25,000.00) (the "Site Enhancement Escrow Funds ") in the form of cash or wired funds pursuant to an Escrow Agreement made and entered into between the'Owner and the City which shall provide as follows: i. In the event construction work on the development of 720 E. Hyman Ave. shall cease for ninety (90) days or longer prior to a final inspection by the City of the work authorized by a building permit on the subject property, then the City in its discretion may draw upon the Site Enhancement Escrow Funds from time to time as needed for the purposes of improving the appearance of any construction work already completed, and for the installing of any public improvements on or adjacent to the subject property. ii. The City shall have sole discretion with respect to the manner of improving the appearance of construction work in progress as well as a determining the public improvements to be installed. iii. The Site Enhancement Escrow Funds or any remaining balance thereof shall be returned to Owner upon completion by the City of a final inspection and issuance of a Certificate of Occupancy for the projeect, or when otherwise agreed to by Owner and the City. iv. The City shall be named as a third party beneficiary of the Escrow Agreement with the express right and authority to enforce the same from time to time in accordance with the tenor in terms thereof. Section 7: Approved Dimensional Requirements The building as presented in the plans dated April 20, 2012 and attached as Exhibit A to this Ordinance comply with the effective dimensional allowances and limitations of the Mixed Use (MU) zone district except as modified below. Compliance with these requirements shall be verified by the City of Aspen Zoning Officer at the time of building permit submittal. The following dimensions are approved: Maximum Height: new skylight, shown in Exhibit A, is permitted to be 1 ft. or less in height as measured from where the feature is attached to the roof. Maximum Residential Floor Area: 0.78:1 floor area ratio, 7,014 square feet total free market residential 720 E. Hyman Avenue - AspenModern negotiation . Ordinance #_, Series of 2012 Page 5 of 13 Maximum Residential Net Livable Area: 5,2501 square feet total: 2,750 square feet for Unit 1 and 2,500 square feet for Unit 2 Minor adjustments to the dimensions represented above may occur upon review of a building permit as long as the resulting dimensions do not exceed those approved through this ordinance. Section 8: Impact and Development Fees: Parks Development and Air Qualiby jDMImpact Fees Pursuant to Land Use Code § 26.610.030, Exemptions, development involving a property listed on the Aspen Inventory of Historic Landmark Sites and Structures is exempt from the Parks Development and Air Quality /TDM Impact Fees. School Lands Dedication Before the Applicant is issued a Building Permit, the Applicant shall pay a fee -in -lieu of land dedication pursuant to Chapter 26.620, School Lands Dedication. The amount of the fee shall be calculated by the Community Development Department using the calculation method and fee schedule in effect at the time the applicant submits a Building Permit. Parking Pursuant to Land Use Code § 26.515, Parking, new residential units are required to mitigate parking impacts either through onsite spaces or cash in lieu. The parking cash in lieu for 3 parking spaces equaling $90,000 is hereby waived. 3 new residential units = 3 parking spaces required 3 x $30,000 /space = $90,000 Section 9: Affordable Housing The project requires affordable housing mitigation for the 2,750 square feet free market residential unit. The 2,500 square feet free market residential unit is exempt from mitigation pursuant to §26.470.060 Growth Management Change in Use for historic landmark sites and structures which allows historic landmarks to create one new free market residential unit without affordable housing mitigation. The affordable housing requirement is specified below: 2,750 sq. ft. of net livable area * 30% = 825 sq. ft. of net livable area required for affordable housing The project includes an 825 sq. ft. net livable area affordable housing unit onsite. The unit shall meet the requirements of the Aspen Pitkin County Housing Authority (APCHA) Guidelines and 1 The total maximum residential net livable area requires the landing of 2 transferrable development rights in accordance with §26.535 Transferrable Development Rights. 720 E. Hyman Avenue - AspenModern negotiation Ordinance # , Series of 2012 Page 6 of 13 shall be deed restricted in accordance with Aspen Pitkin County Housing Authority requirements. The unit is approved as a rental unit pursuant to the following conditions: 1. The deed restriction shall require that all tenants are approved prior to tenancy through APCHA and must re- qualify on a yearly basis, the tenant shall be no higher than a Category 4, and at such time the unit is found to be out of compliance for one year, the owner will be required to sell the unit through APCHA's- lottery system. 2. The unit shall be classified no higher than Category 4. A document will be required to be signed by the owner that this deed restriction is being done on a voluntary basis and that the rental control of the unit is acceptable and required and will remain in perpetuity until such time the unit is sold as stated in number 1 above. 4. The rental deed restriction will be recorded with the following conditions: a. The use and occupancy of the Employee Dwelling Unit shall henceforth be limited exclusively to housing for employees and their families who are employed in Pitkin County and who meet the definition of "qualified Category 4 employee" as that term is defined by the qualification guidelines established and indexed by the Authority on an annual basis. The Owner shall have the right to lease the Employee Dwelling Unit to a "qualified Category 4 employee" of his own selection. b. The Employee Dwelling Unit shall not be occupied by the Owner or members of the immediate family ( "Immediate Family" shall mean a person related by blood or marriage who is a first cousin [or closer relative] and his or her children), unless the family member is a qualified employee and obtains approval by APCHA prior to occupancy. The unit shall at no time be used as a guesthouse or guest facility. C. Written verification of employment of employee(s) proposed to reside in the Employee Dwelling Unit shall be completed and filed with the Authority by the Owner of the Employee Dwelling Unit prior to occupancy thereof, and _such verification must be acceptable to the Authority. d. The Employee Dwelling Unit shall be required to be rented for periods of no less than six (6) consecutive months. Upon vacancy of the Employee Dwelling-Unit, the Owner is granted forty-five (45) days in which to locate a qualified employee. If an employee is not placed by the Owner, the Authority may rent the Employee Dwelling Unit to a qualified employee. e. The maximum rental rate shall not exceed the Category 4, one - bedroom, rental rate as set forth in the Rental Guidelines established by the Authority and may be adjusted annually as set forth by the Guidelines. The maximum permitted rent for the unit on the date of execution of this deed restriction as stated in the Guidelines at the time the deed - restriction is recorded. Rent shall be verified and approved by the 720 E. Hyman Avenue - AspenModern negotiation Ordinance #_, Series of 2012 Page 7 of 13 Authority upon submission and approval of the lease. Employees shall be qualified by the Authority as to employment, maximum income and asset limitations on a yearly basis. The signed lease must be provided to APCHA:. f. The Unit must meet minimum occupancy; i.e., one person per bedroom. g. Owner agrees to provide to APCHA upon request all information reasonably necessary to determine if there is full compliance with this Agreement. h. In the event that APCHA has reasonable cause to believe the Owner and/or tenant is violating the provisions of this Agreement, the APCHA, by its authorized representative, may inspect the Property or Affordable Housing Unit between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner with no less than 24 hours' written notice. i. The APCHA, in the event a violation of this Agreement is discovered, shall send a notice of violation to the Owner and/or tenant, as may be applicable, detailing the nature of the violation and allowing the Owner or tenant fifteen (15) days to cure. Said notice shall state that the Owner or tenant may request a quasi-judicial hearing before the APCHA Board pursuant to the Grievance Procedures of the APCHA Guidelines within fifteen (15) days to determine the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen (15) day period, the Owner or tenant shall be considered in violation of this Agreement. If a hearing is held before the APCHA Board, the decision of the APCHA Board based on the record of such hearing shall be final for the purpose of determining if a violation has occurred and for the purpose of judicial review. j. There is hereby reserved to the parties' hereto any and all remedies provided by law for breach of this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or all provisions of this Agreement, the prevailing party shall recover damages and costs, including reasonable attorney's fees. k. In the event an Affordable Housing Units is leased without compliance herewith, such lease shall be wholly null and void and .shall confer no title whatsoever upon the purported tenant. Each and every lease, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference therein to this Agreement. 1. In- the event that the Owner or tenant fails to cure any breach, the APCHA may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring compliance by Owner and/or tenant. m. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such a manner as to be valid under applicable law; 720 E. Hyman Avenue - AspenModern negotiation Ordinance #_, Series of 2012 Page 8 of 13 but if any such provision shall be invalid or prohibited under applicable law, such provision shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Agreement or other document. n. This Agreement is to be governed and construed in accordance with the laws of the State of Colorado. o. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any part hereto except on the basis of a written instrument executed by the parties to this agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition. P. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made in writing signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. q. The terms and provisions of this Deed Restriction shall constitute covenants running with the title to the Affordable Housing Units as a burden thereon for the benefit of, and. shall be specifically enforceable by, the Managing Agent, the Association and/or Owner, by the Housing Authority, the City of Aspen, Colorado, and by their respective successors and assigns, by any appropriate legal action including, but not limited to, injunction, abatement, or eviction of non - qualified tenants. r. Lease agreements executed for occupancy of the Employee Dwelling Unit shall provide for a rental term of not less than six (6) consecutive months. A signed and executed copy of the lease shall be provided to the Authority by the Owner within ten (10) days of approval of employee(s) for the Employee Dwelling Unit. S. Owner and APCHA stipulate and agree that, in accordance with CRS 38 -12- 301(1)(a) and (b), this Deed Restriction constitutes a voluntary agreement and deed restriction to limit rent on the property subject hereto and to otherwise provide affordable housing stock. Owner waives any right it may have to claim that this Deed Restriction violates CRS 38 -12 -301. t. When the option to convert any unit to a sale unit is exercised, the owner must adopt a new deed restriction in the form adopted by APCHA that is applicable to sale units. A Certificate of Occupancy shall be granted and a deed restriction shall be recorded for the housing unit prior to the issuance of a Certificate of Occupancy or a Conditional Certificate of Occupancy for the free market residential units or the commercial component. 720 E. Hyman Avenue - AspenModern negotiation Ordinance #_, Series of 2012 Page 9 of 13 Section 10: Growth Management Quota System Allotments 1 free market residential unit is herby granted an annual development allotment. Pursuant to §26.470.060(3) Change in Use of historic landmark sites and structures, the second free market residential unit is not deducted from the annual development allotments but is deducted from the respective development ceiling levels. Section 11: Building Permit The applicant may not submit a Building Permit Application until the requirements in Land Use Code § 26.304.075.A, Building Permit Application, are fulfilled. The building permit application shall include the following: 1. A copy of the Development Order issued by the Community Development Department (see § 26.304.075(A)(2), City of Aspen Municipal Code.) 2. A copy of the final City Council Ordinance and HPC Resolution. 3. The conditions of approval shall be printed on the cover page of the Building Permit set. 4. A construction management plan (CMP) and drainage report pursuant to Engineering and Building Department requirements. 5. Accessiblity and ANSI requirements shall meet adopted Building Code requirements. Section 12: Engineering The Applicant's design shall be compliant with all sections of the City of Aspen Municipal Code, Title 21, Title 28, and all construction and excavation standards published by the Engineering Department. A construction management plan must be submitted in conjunction with the building permit application. A completed drainage report/plan as outlined in the Urban Runoff Management Plan shall be submitted and approved prior to recordation of Final Plat. Failure to meet the standards in Title 21 and Title 28 may result in a physical change to the project and possible review by City Council and /or HPC to amend the design. An encroachment license is required for the planter boxes located in the Right -of -way. Section 13: Parks I . The Parks Department shall review and approve the planting for the planter boxes. 2. Landscaping in the public Right -of -way shall be subject to landscaping in the Right -of- way requirements, Aspen Municipal Code Chapter 21.20. All plantings within the City Right -of -way must be approved by the City Parks Department prior to installation. 3. Right -of -way requirements necessitate adequate irrigation pressure and coverage, if a system is not in place one will need to be added that is specifically designed for the trees in the planter boxes. Section 14: Fire Mitigation Before the Applicant is issued a Building Permit, the Applicant shall obtain the approval of the Fire Marshal of a Fire Protection, Plan which shall include the following elements: 1. Compliance with all codes and requirements of the Aspen Fire Protection District 2. Sprinkler, fire alarms and carbon monoxide alarms are required. (IFC as amended Section 903 and 907). 720 E. Hyman Avenue - AspenModern negotiation Ordinance #_, Series of 2012 Page 10 of 13 3. Documentation that the development has sufficient volume and pressure of water for the sprinklers or other fire suppression system adequate to satisfy the District's standards for the type of structures proposed by the approved development. This requirement shall be satisfied by an analysis acceptable to the Water Department which demonstrates system delivery capacity of existing water distribution system at the Water Departments' main water to the approved development of no less than 3,000 gallons per minute. 4. An overall access plan for the site. Section 15: Sanitation District Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. Section 16: Water Department The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water conservation and Plumbing Advisory Code) of the Aspen Municipal Code in place at the time of building permit submittal, as required by the City of Aspen Water Department. Each of the units within the mixed use building shall have individual water meters. Section 17: Exterior Lighting All exterior lighting shall meet the requirements -of the City's Outdoor Lighting Code pursuant to Land Use Code § 26.575.150, Outdoor Lighting. Section 18: Vested Rights The development approvals granted herein shall constitute a site - specific development plan and a vested property right pursuant to Land Use Code Section 26.308.011 attaching to and running with the Subject Property and shall confer upon the 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 three (3) 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. For purposes of this provision, the submission and acceptance of a building permit application for the restoration of the Benton Building as part of the enlargement of a historic landmark that is deemed complete by the Chief Building Inspector pursuant to Land Use Code Section 26.304.075 shall prevent the expiration of the vested rights of the applicant and any related development orders under Land Use Code Section 26.304.070.D. 720 E. Hyman Avenue - AspenModern negotiation Ordinance #_, Series of 2012 Page 11 of 13 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 three (3) 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: 720 East Hyman Avenue, the Aspen Athletic Club Building Condominiums, Lots Q, R and S, Block 104, City and Townsite of Aspen, Colorado, by Ordinance of the City Council of the City 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 19: 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. Section 20: 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 21: 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. 720 E. Hyman Avenue - AspenModern negotiation Ordinance # Series of 2012 Page 12 of 13 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 22: A public hearing on this ordinance shall be held on the 11th day of June, 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 29th day of May, 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY, adopted, passed and approved this _ day of 52012. ATTEST: Kathryn Koch, City Clerk APPROVED AS TO FORM: James R. True, City Attorney Michael C. Ireland, Mayor 720 E. Hyman Avenue - AspenModern negotiation Ordinance #_, Series of 2012 Page 13 of 13 Exhibit A 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 AspenModern, 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 a 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 FINDINGS: Staff finds that review criteria a — e are met. 720 East Hyman Ave- AspenModern negotiation Exhibit A- designation criteria . Page 1 of 3 720 E. Hyman does not exemplify textbook Wrightian architecture. Restricting the analysis of a design profession like architecture to a uniform set of criteria that qualify a building as contributing to a specific style fails to recognize the artistic freedom architects like Molny exercised — as Wright expressed to Molny, "If you understand the principles of my architecture, then your buildings need not look like mine." Applying this idea to preservation of 720 E. Hyman; while it does not replicate the exact teachings of a master architect, it is defined in part by Aspen's creative environment where architects, and other creative professionals, could experiment with modern philosophies and the built environment in this specific context. It is exactly this creative adventure that produced interesting architecture in Aspen — architecture that communicates both a sense of place (the high country and extreme environment) and a higher level of design. Spatial connections, relationship to the site and connection with nature, and utilizing the materials for both aesthetic and structural functions are all examples of Wrightian philosophy. Photograph 1: example of blurring the line between the inside and outside through the use of glazing and large sliding glass doors Molny used Wrightian design philosophy- for example: organic architecture (composing buildings with space rather than mass and scale; and creating a harmony of architecture and environment) - to create an open floor plan and an interior /exterior courtyard. Aspen was lucky to be home to many intellectuals, including modernist architects, who were starting out in the field. Molny used his foundation at Taliesen to draw upon the physical and intellectual environment of Aspen and create a building that is not a replica of Wright, but indicative of his own background, design, experiences, and client. Molny was not the only architect in Aspen whose training under Frank Lloyd Wright influenced the towns architectural character. Please refer to the white paper "Aspen's Twentieth- Century Architecture: Modernism 1945 – 1975 ", attached as Exhibit B, more information about this trend. Aspen was fortunate to attract a variety of highly trained architects who left a modern impression throughout the town. Among the architectural crowd was Robin Molny who 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. Wright is quoted as describing Molny as a "poet" saying "he'll be a good architect one day." Subsequently, Molny moved to Aspen, 720 East Hyman Ave- AspenModern negotiation Exhibit A- designation criteria Page 2 of 3 worked for Fritz Benedict, and opened his own architecture firm. The Hearthstone House (134 East Hyman, 1961), the Mason and Morse Building (514 East Hyman, heavily altered, 1971), and the downtown pedestrian malls (1970s) were all designed by Molny. 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. Dick Carney, Chairman of the Frank Lloyd Wright Foundation Board, wrote a letter honoring Molny when he was presented with the Welton Anderson Preservation Honor Award in 1997. Robin Molny's architectural contributions are locally significant in their representation and communication of Aspen life in the 1960s and 1970s. As indicated through the careful orientation of the main atrium, Molny was sensitive to spatial relationships: he designed the atrium to serve as a flexible, light - filled, transition between the exterior and interior, taking advantage of the views to the mountain, and creating interest for those inside the building. The style of the building is hard to categorize. It best represents an eclectic commercial style that Molny created using natural materials, repetition, and cutting edge building technology of the time. The elegant use of structural members to create the form, fenestration, and architectural interest, and attention to small details like bolt patterns display the craftsmanship and philosophy of a quality designer. Molny displayed his appreciation and knowledge of materials and architectural history in the construction of the Aspen Athletic Building with the use of the current technology and construction techniques. The first patents for glu -lam beams were issued in Switzerland and Germany, and the first U.S. manufacturing standard for glu -lam was published in 1963. The structural glazing (also called structural silicone glazing) that spans between the first and second floors to create the interior atrium uses cutting edge technology that was developing in the late 1960s and early 1970s. 720 E. Hyman was built in 1976. Photograph 2: Detail of bolt pattern Overall the physical integrity of the building is intact. Original materials have not been replaced and the form and site plan is unchanged. The plywood hoppers appear original but are no longer operable. The building scored a 17 on the integrity score sheet which qualifies it as a "best" example of organic architecture. The proposed minor changes to the exterior that HPC reviewed do not significantly impact the building's integrity score. Staff finds that criteria a, b, c, d, and a are met. 720 East Hyman Ave- AspenModern negotiation Exhibit A- designation criteria Page 3 of 3 Character Defining Features of the Wrightian /Organic Style Check box if statement 1) Low horizontal proportions, flat or low pitched hip . roofs is true. One point per 2) Deep roof overhangs that create broad shadow box. lines across the fagade, glazing is usually concentrated in these areas 3) Materials are usually natural and hand - worked, such as rough -sawn wood timbers and brick, brick is generally used as a base material, wall infill, or in an anchoring fireplace element. wood structural systems tend more toward heavy timber or post -and beam than typical stud framing 4) Structural members and construction methods are usually expressed in the building, for example, load bearing columns may be expressed inside and out; the wall plane is then created by an infill of glass or brick 5) Roof structure is often expressed below the roof sheathing . 6) Glass is used as an infill material which expresses a void or a structural system, or it is used to accentuate the surface of a wall through pattern or repetition K, wwftr� Sam 7) No trim isolating the glazing from the wall plane, window openings are trimmed out to match adjacent structural members in a wood context, brick openings tend to be deeply set with no trim other than the brick return 8) Structures are related to the environment through battered foundation walls, cantilevered floors, and /or porches, clear areas of glazing that create visual connections between inside and outside, and the effect of the roof plane hovering over the ground 9) Decoration stems from the detailing of the primary materials and the construction technique, no applied decorative elements are used 10) Color is usually related to the natural colors of materials (natural brick, dark stained wood, white stucco, accent colors are used minimally and mainly to accentuate the horizontal lines of the structure A building must have 6 of the 10 character defining features, either present or clearly documented through photographic of physical evidence to qualify as Wrightian /Organic Style. Restoration may be required as part of the award of incentives. If the property earned 6 or more points, continue to the next page. If the property earned less than 6 points, - - scoring ends. TO _ Total Points, 0 — 10 ►: A: R6. 6f *b- INTEGRITY SCORING If a statement is true, circle the number of points associated with that true statement. LOCATION OF ON • The building is in its original location. 2 point The building has been shifted on the original parcel, but maintains its original 1 point alignment and /or proximity to the street. The property is located within the geographical area surrounded by Castle tl oint 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. r 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 E'xterior 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 •1 point . match the original condition. Windows doors The original windows and doors of the building are still in place, with the 2 points exception of normal maintenance and repairs. 5.0% of the original windows and Idoors have been replaced, but the Lp oint replacements match the original condition. Integrity Score (this page) maximum of 10 points: Character Defining Features Score .(first page) maxi- mum of 10 points: HISTORIC S S SCORE: 01 i I EXHIBIT C SUBDIVISION Chapter 26.480, SUBDIVISION Section 26.480 of the City Land Use Code provides that development applications for Subdivision must comply with the following standards and requirements. A. General Requirements 1. The proposed subdivision shall be consistent with the Aspen Area Comprehensive Plan. 2.. The proposed subdivision shall be consistent with the character of existing land uses in the area. 3. The proposed subdivision shall not adversely affect the future development of surrounding areas. 4. The proposed subdivision shall be in compliance with all applicable requirements of this Title. Staff Finding: Staff finds that the proposal supports the general policies and goals in the Aspen Area Community Plan, specifically the Historic Preservation chapter. The project is consistent with i the character of the existing land uses in the area and will not adversely affect the future development of the area. The proposed subdivision to `merge the lots is in compliance with applicable requirements of the Land Use Code. B. Suitability of Land for Subdivision a. Land suitability. The proposed subdivision shall not be located on land unsuitable for development J because of flooding, drainage, rock or soil creep, mudflow, rockslide, avalanche or snowslide, steep, topography or any other natural hazard or other condition that will be harmful to the'health, safety, or welfare of the residents in the proposed subdivision. Staff Finding: n/a. b. Spatial pattern efficient. The proposed subdivision shall not be designed to create spatial patterns that cause inefficiencies, duplication or premature extension of public facilities and unnecessary public costs. Staff Finding: n/a. 720 East Hyman Ave.- AspenModern negotiation Exhibit C — Subdivision Criteria Page 1 of 3 C. Improvements. The improvements set forth at Chapter 26.580 shall be provided for the proposed subdivision. These standards may be varied by special review (See, Chapter 26.430) if the following conditions have been met: 1. A unique situation exists for the development where strict adherence to the subdivision design standards would result in incompatibility with the Aspen Area Comprehensive Plan, the existing, neighboring development areas, and /or the goals of the community. 2. The applicant shall specify each design standard variation requested and provide justification for each variation request, providing design recommendations by professional engineers as necessary. Staff Finding: the applicant shall comply with Aspen Municipal Code Chapter 26.580 as applicable. D. Affordable housing. A subdivision which is comprised of replacement dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.520, Replacement Housing Program. A subdivision which is comprised of new dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.470, Growth Management'Quota System. Staff Finding: Affordable housing is reviewed concurrent with Subdivision pursuant to the AspenModern negotiation process. The applicant proposes to mitigate for affordable housing with an onsite deed restricted unit. E. School Land Dedication. Compliance with the School Land Dedication Standards set forth. at Chapter 26.630. Staff Finding: The applicant agrees to comply with the School Land Dedication Standards in Chapter 26.630. Staff finds this criterion is met. F. Growth Management Approval. Subdivision approval may only be granted to applications for which' all growth management development allotments have been granted or growth management exemptions have been obtained, pursuant to Chapter 26.470. Subdivision approval may be granted to create a parcel(s) zoned Affordable Housing Planned Unit Development (AH -PUD) without first obtaining growth management approvals if the newly created parcel(s) is required to obtain such growth management 720 East Hyman Ave.- AspenModern negotiation Exhibit C — Subdivision Criteria Page 2 of 3 approvals prior to development through a legal instrument acceptable to the City Attorney. (Ord. No. 44- 2001, § 2) Staff Finding: Affordable housing is reviewed concurrent with Subdivision pursuant to the AspenModern negotiation process. The applicant proposes onsite affordable housing mitigation in the form of a one bedroom Category 4 unit. 720 East Hyman Ave, AspenModern negotiation Exhibit C — Subdivision Criteria Page 3 of 3 EXHIBIT D GROWTH MANAGEMENT REVIEWS §26.470.080.2 New free - market residential units within a multi - family or mixed -use project. The development of new free - market residential units within a multi - family or mixed -use project shall be approved, approved with conditions or denied by the Planning and Zoning Commission based on the general requirements outlined in Section 26.470.050. 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 Response: Sufficient growth management allotments are available to accommodate the proposed free market residential unit. Staff finds that this criteria is met. 2. The proposed development is consistent with the Aspen Area Community Plan. Staff Response: The project is consistent with the goals and policies of the Aspen Area Community Plan specifically the Historic Preservation chapter. Staff finds that this criteria is met. 3.. The development conforms to the requirements and limitations of the zone district. Staff Response: The project requests a variance to the allowable floor area allotted to free market residential use as part of the AspenModern negotiation for landmark designation. The commercial component of the building ,is an existing non - conformity, however the proposal reduces the non - conformity. 720 East Hyman Ave. — Aspen Modern negotiation Exhibit D — GMQS Page 1 of 5 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 Response: The project is consistent with Historic Preservation Commission approvals. 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 Response: n/a — the project reduces commercial net leasable area which does not require mitigation. 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, 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 Response: Two new free market residential units are proposed. The smaller of the two units (2,500 square feet of net livable area) is eligible for the exempt from affordable housing mitigation offered as a one time incentive for historic landmark properties. The larger of the two units (2,750 square feet of net livable area) requires mitigation at 30% of the new net livable area. 720 East Hyman Ave. — Aspen Modern negotiation Exhibit D — GMQS Page 2 of 5 The larger free market residential unit comprises 2,750 square feet of net livable area, which requires an 825 square feet net livable area affordable housing unit. The proposed unit is located on the second floor and is 825 square feet of net livable area. It is proposed as a one - bedroom, Category 4 rental. Further discussion of the housing unit and APCHA's recommendation is provided below. Staff finds this criterion to be met. 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 Response: The project represents minimal demand on public infrastructure. It is an existing commercial building that is being partially converted to mixed use. Staff finds this criterion to be met. Sec. 26.470.070. Minor Planning and Zoning Commission applications. The following types of development shall be approved, approved with conditions or denied by the Planning and Zoning Commission, 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, the following types of growth management approvals shall be deducted from the respective development ceiling levels but shall not be deducted from the annual development allotments. Approvals apply cumulatively. 4. Affordable housing. The development of affordable housing deed - restricted in accordance with the Aspen/Pitkin County Housing Authority Guidelines shall be approved, approved with conditions or denied by the Planning and Zoning Commission based on the following criteria: a. The proposed.units comply with the Guidelines of the Aspen/Pitkin County Housing Authority. A recommendation from the Aspen/Pitkin County Housing Authority shall be required for this standard. The Aspen/Pitkin County Housing Authority may choose to hold a public hearing with the Board of Directors. Staff Response: A referral from APCHA is included as Exhibit E. APCHA is not, in favor of the proposed onsite unit due to concerns about its location in a mixed use building, and recommends Affordable Housing credits as the form of mitigation. The Land Use Code permits and incentivizes mitigation onsite to encourage diversity within the building. The ordinance includes APCHA's conditions of approval for a Category 4 rental unit as requested by the applicant. b. Affordable housing required for mitigation purposes shall be in the form of actual newly built units or buy -down units. Off -site units shall be provided within the City 720 East Hyman Ave. — Aspen Modern negotiation Exhibit D — GMQS Page 3 of 5 limits. Units outside the City limits may be accepted as mitigation by the City Council, pursuant to Paragraph 26.470.090.2. If the mitigation requirement is less than one (1) full unit, a cash -in -lieu payment may be accepted by the Planning and Zoning Commission upon a recommendation from the Aspen/Pitkin County Housing Authority. If the mitigation requirement is one (1) or more units, a cash - in -lieu payment shall require City Council approval, pursuant to Paragraph 26.470.090.3. A Certificate of Affordable Housing Credit may be used to satisfy mitigation requirements by approval of the Community Development Department Director, pursuant to Section 26.540.080 Extinguishment of the Certificate. Required affordable housing may be provided through a mix of these methods. (Ord. No. 6 - 2010, §4) Staff Response: The housing unit is provided onsite. Staff finds that this criterion is'met. c. Each unit provided shall be designed such that the finished floor level of fifty percent (50 %) or more of the unit's net livable area is at or above natural or finished grade, whichever is higher. This dimensional requirement may be varied through Special Review,. Pursuant to Chapter 26.430: (Ord. No. 14 — 2011, §3) Staff Response: The;unit is located on the second floor of the existing building. Staff finds that this criterion is met. d. The proposed units shall be deed - restricted as "for sale" units and transferred to qualified purchasers according to the Aspen/Pitkin County Housing Authority Guidelines. The owner may be entitled to select the first purchasers, subject to the aforementioned qualifications, with approval from the Aspen/Pitkin County Housing Authority. The deed restriction shall authorize the Aspen/Pitkin County Housing Authority or the City to own the unit and rent it to qualified renters as defined in the Affordable Housing Guidelines established by the Aspen/Pitkin County Housing Authority, as amended. The proposed units may be rental units, including but not limited to rental units owned by an employer or nonprofit organization, if a legal instrument in a form acceptable to the City Attorney ensures permanent affordability of the units. The City encourages affordable housing units required for lodge development to be rental units associated with the lodge operation and contributing to the long -term viability of the lodge. Units owned by the Aspen/Pitkin County Housing Authority, the City of Aspen, Pitkin County or other similar governmental or quasi - municipal agency shall not be subject to this mandatory "for sale" provision. Staff Response: The applicant requests that the proposed unit be a Category 4 rental; however APCHA requests that the unit be a Category 3 or 4 sale unit. The Code does not specify a specific option, only that the unit is deed restricted in accordance with APCHA 720 East Hyman Ave. — Aspen Modern negotiation Exhibit D — GMQS Page 4 of 5 guidelines and is either sold or rented to a qualified purchaser /renter. Conditions of approval for both a rental and ownership option are included in Exhibit E. e. Non- Mitigation Affordable Housing. Affordable housing units that are not required for mitigation, but meet the requirements of Section 26.470.070.4(a -d). The owner of such non - mitigation affordable housing is eligible to receive a Certificate of Affordable Housing Credit pursuant to Chapter 26.540. (Ord. No. 6 — 2010, §4) I\ 720 East Hyman Ave. — Aspen Modern negotiation Exhibit D — GMQS Page 5 of 5 • MEMORANDUM TO: Sara Adams FROM: Cindy Christensen, APCHA Operations Manager DATE: May 7, 2012 RE: REDEVELOPMENT OF 720 EAST HYMAN (ASPEN ATHLETIC CLUB BUILDING) ISSUE: The applicant is requesting approval for the redevelopment of the 720 East Hyman, the Aspen Athletic Club building. BACKGROUND: The applicant is proposing the redevelopment as part of the voluntary historic designation. It will encompass full renovation of the building over several years. Section 26.415.025.C, Aspen Modern Properties, comes into play with the voluntary history designation; therefore, there is a 90 -day negotiation period with City Council. The request is to provide two free- market units and one deed - restricted unit within the building. Under Section 26.470.050.13, Growth Management: General Requirements, the applicant is requesting one allotment for a free market unit and one for an affordable housing unit. A second free - market unit is being made available as a growth management benefit, under the Aspen Modern Program for Landmark Properties, without affordable housing mitigation. DISCUSSION: Section 26.470.100.A, states that 60% of the employees generated by the additional commercial or lodge development shall be mitigated through the provision of affordable housing. The applicant states that the total net leasable area within the building will be reduced by 5,537 square feet; thereby no affordable housing mitigation is required. Section 26.470.050.B.6, states that "the 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 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." Under the Aspen Modern Program, Landmark Properties, the free market unit No. 1 should meet the requirements for affordable housing mitigation, and Unit No. 2 will be exempt from affordable housing mitigation. The unit size cap for both free - market units is 2,000. square feet; however, both units are proposed as 2,500 square feet and 2,750 square feet. The applicant is applying for the 500 square foot floor area bonus for designated historic properties for Unit 1 As to the additional square footage of 750 for Unit 2, the applicant is looking to mitigate with a TDR for 500 square feet and requests that the additional 250 square feet be permitted as it is being placed within the existing building floor area. Aspen Athletic Building Redevelopment Page 1 The affordable housing unit is proposed as a one - bedroom, 825 net leasable square foot unit, to be located on the second floor. The plans for the unit are attached. Section 26.470.070.4.d, Minor Growth Management: Affordable Housing, states that the "proposed units shall be deed - 'restricted as `for sale' units and transferred to qualified purchasers according to the Aspen/Pitkin County Housing Authority Guidelines. The owner may be entitled to select the first purchasers, subject to the aforementioned qualifications, with approval from the Aspen/Pitkin County Housing Authority." This paragraph also allows for APCHA or the City to own the.unit and rent it to qualified renters. The proposed unit may also be a rental unit owned by an employer or non - profit as long as a legal instrument, acceptable to the City Attorney, ensures the permanent affordability of the unit. The applicant is requesting the unit as a dedicated rental unit to be owned by the building owner and rented to an employee of the owner. Parking is an issue. Section 26.515.010 has a general requirement that all .development shall be provided with off - street parking. Under Section 26.420.010.B.1.e, the applicant is requesting a waiver for required parking on site due to the lack of available lot area to create parking spaces. If the redevelopment is approved, Staff would recommend the unit be a "for sale ", Category 3 or 4 unit and that the condominium documents reflect that any common area maintenance shall be assessed based on the actual values of the free - market versus the affordable unit. RECOMMENDATION: The APCHA Board reviewed the application at their meeting held May 2, 2012 and is recommending denial of the on -site deed - restricted unit as it would be a single unit in a mixed use building. Enforcement on these types of single units would place a burden on the APCHA staff and is not in the best interest of the program. The APCHA Board recommends that the mitigation for the second free - market unit be provided by the use of an Affordable Housing Credit Certificate and not an on -site or off -site unit. However, should the redevelopment be approved by the City Council, the APCHA Board would request that the unit remain a "for sale ", Category 3 or 4; one - bedroom unit. If the project is approved, certain conditions should be required. Listed below are the conditions that should be required broken down into whether the unit is a "for sale" unit or a rental unit: Sales Unit: 1. The unit shall be an ownership unit and sold through the Aspen/Pitkin County Housing Authority lottery system upon Certificate of Occupancy. 2. The unit shall be classified as Category 3 or 4. 3. The condominium documents shall reflect that any common area maintenance shall be assessed based on the actual values of the free- market homes versus the deed - restricted unit. Any property management fees or other fees associated with the commercial or free - market aspect of the building shall not be charged to the deed - restricted owner. The Aspen Athletic Building Redevelopment Page 2 condominium documents shall be reviewed and approved by APCHA prior to Certificate of Occupancy. The goal is to protect the affordable housing unit from excessive monthly and/or special assessments having to do with luxury items and /or expensive modifications. 4. The deed - restricted unit shall receive the Certificate Occupancy prior to, or in conjunction with, the free - market units. Rental Unit: 1. If the unit is allowed to be a rental unit, the deed restriction shall require that all tenants are approved PRIOR to tenancy through APCHA and must re- qualify on a YEARLY basis, the tenant shall be no higher than a Category 4, and at such time the unit is found to be out of compliance for one year, the owner will be REQUIRED to sell the unit through APCHA's lottery system. 2. The unit shall be classified no higher than Category 4. 3. A document will be required to be signed by the owner that this deed restriction is being done on a voluntary basis and that the rental control of the unit is acceptable and required and will remain in perpetuity until such time the unit is sold as stated in number 1 above. 4. The rental deed restriction will be recorded with the following conditions: a. The use and occupancy of the Employee Dwelling Unit shall henceforth be limited exclusively to housing for employees and their families who are employed in Pitkin County and who meet the definition of "qualified Category 4 employee" as that term is defined by the qualification guidelines established and indexed by the Authority on an annual basis. The Owner shall have the right to lease the Employee Dwelling Unit to a "qualified Category 4 employee" of his own selection. b. The Employee Dwelling Unit shall not be occupied by the Owner or members of the immediate family ( "Immediate Family" shall mean a person related by blood or marriage who is a first cousin [or closer relative] and his or her children), unless the family member is a qualified employee and obtains approval by APCHA prior to occupancy. The unit shall at no time be used as a guesthouse or guest facility. C. Written verification of employment of employee(s) proposed to reside in the Employee Dwelling Unit shall be completed and filed with the Authority by the Owner of the Employee Dwelling Unit prior to occupancy thereof, and such verification must be acceptable to the Authority. d. The Employee Dwelling Unit shall be required to be rented for periods of no less than six (6) consecutive months. Upon vacancy of the Employee Dwelling Unit, the Owner is granted forty-five (45) days in which to locate a qualified employee. If an employee is not placed by the Owner, the Authority may rent the Employee Dwelling Unit to a qualified employee. e. The maximum rental rate shall not exceed the Category 4, one - bedroom, rental rate as set forth in the Rental Guidelines established by the Authority and may be adjusted annually as set forth by the Guidelines. The maximum permitted rent for the unit on the date of execution of this deed restriction as stated in the Guidelines at the time the deed - restriction is recorded. Rent shall be verified and Aspen Athletic Building Redevelopment Page 3 approved by the Authority upon submission and approval of the lease. Employees shall be qualified by the Authority as to employment, maximum income and asset limitations on a yearly basis. The signed lease must be provided to APCHA. The Unit must meet minimum occupancy; i.e., one person per bedroom. g. Owner agrees to provide to APCHA upon request all information reasonably necessary to determine if there is full compliance with this Agreement. h. In the event that APCHA has reasonable cause to believe the Owner and/or tenant is violating the provisions of this Agreement, the APCHA, by its authorized representative, may inspect the Property or Affordable Housing Unit between the hours of 8:00 a.m. and 5:00 p.m.,, Monday through Friday, after providing the Owner with no less than 24 hours' written notice. The APCHA, in the event a violation of this Agreement is discovered, shall send a notice of violation to the Owner and/or tenant, as may be applicable, detailing the nature of the violation and allowing the Owner or tenant fifteen (15) days to cure. Said notice shall state that the Owner or tenant may request a quasi-judicial hearing before the APCHA Board; pursuant to the Grievance Procedures of the APCHA Guidelines within fifteen (15) days to determine the merits of the allegations. If no hearing is requested and the violation is not cured within the fifteen (15) day period, the Owner or tenant shall be considered in violation of this Agreement. If a hearing is held before the APCHA Board, the decision of the APCHA Board based on the record of such hearing shall be final for the purpose of determining if a violation has occurred and for the purpose of judicial review. There is hereby reserved to the parties' hereto any and all remedies provided by law for breach of this Agreement or any of its terms. In the event the parties resort to litigation with respect to any or all provisions of this Agreement, the prevailing party shall recover damages and costs, including reasonable attorney's fees. k. In the event an Affordable Housing Units is leased without compliance herewith, such lease shall be . wholly null and void and shall confer no title whatsoever upon the purported tenant. Each and every lease, for all purposes, shall be deemed to include and incorporate by this reference, the covenants herein contained, even without reference therein to this Agreement. In the event that the Owner or tenant fails to cure any breach, the APCHA may resort to any and all available legal action, including, but not limited to, specific performance of this Agreement or a mandatory injunction requiring compliance by Owner and/or tenant. . m. Whenever possible, each provision of this Agreement and any other related document shall be interpreted in such a manner as to be valid under applicable law; but if any such provision shall be invalid or prohibited under applicable law, such provision shall be ineffective to the extent of such invalidity or prohibition without invalidating the remaining provisions of this Agreement or other document. n. This Agreement is to be governed and construed in accordance with the laws of the State of Colorado. o. No claim of waiver, consent or acquiescence with respect to any provision of this Agreement shall be valid against any part hereto except on the basis of a written instrument executed by the parties to this agreement. However, the party for whose benefit a condition is inserted herein shall have the unilateral right to waive such condition. Aspen Athletic Building Redevelopment Page 4 P. The parties to this Agreement agree that any modifications of this Agreement shall be effective only when made in writing signed by both parties and recorded with the Clerk and Recorder of Pitkin County, Colorado. q. The terms and provisions of this Deed Restriction shall constitute covenants running with the title to the Affordable Housing Units as a burden thereon for the benefit of, and shall be specifically enforceable by, the Managing Agent, the Association and/or Owner, by the Housing Authority, the City of Aspen, Colorado, and by by their respective successors and assigns, by any appropriate legal action including, but not limited to, injunction, abatement, or eviction of non - qualified tenants. r. Lease agreements executed for occupancy of the Employee Dwelling Unit shall provide for a rental term of not less than six (6) consecutive months. A signed and executed copy of the lease shall be provided to the Authority by the Owner within ten (10) days of approval of employee(s) for the Employee Dwelling Unit. S. Owner and APCHA stipulate and agree that, in accordance with CRS 38- 12- 301(1)(a) and (b), this Deed Restriction constitutes a voluntary agreement and deed restriction to limit rent on the property subject hereto and to otherwise provide affordable housing stock._ Owner waives any right it may have to claim that this Deed Restriction violates CRS 38 -12 -301. t. When the option to convert any unit to a sale unit is exercised, the owner must adopt a new deed restriction in the form adopted by APCHA that is applicable to sale units. Aspen Athletic Building Redevelopment Page 5 MEMORANDUM TO: Mayor Ireland and City Council THRU: Chris Bendon, Community Development Director FROM: Jennifer Phelan, Deputy Planning Director RE: South Aspen Street Subdivision/PUD — Amendment to existing approvals, First Reading of Ordinance No.1$ (Series of 2012) MEETING DATE: May 29, 2012 APPLICANT /OWNER: ASV Aspen Street Owners, LLC c/o David Parker REPRESENTATIVE: Mitch Haas, Haas Land Planning, LLC LOCATION: Parcels l; 2 and 3, South Aspen Street Subdivision (adjacent to Aspen Street between Dean and south of Gilbert Street) CURRENT ZONING & USE Located in the Lodge (L) zone district with a Planned Unit Development (PUD) overlay. PROPOSED LAND USE: The Applicant is requesting to amend the existing entitlements for the properties from a total of 31 on -site residential multi - family units (14 free- market units and 17 affordable housing units) to 24 on -site residential multi - family units (14 free- market units and 10 affordable housing units) and 8 off -site residential multi- family affordable housing units. The off -site units are proposed to be located at the Airport Business Center. The free - market component's net livable area will be increased, while some of the on -site affordable housing with be sub - grade. , STAFF RECOMMENDATION: Staff recommends that the City Council require the Applicant to substantially revise the plans. The Planning and Zoning Commission as well as the APCHA board recommended approval of the project. Vicinity map of the site LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant has requested a combined review, in which all final decisions are granted by City Council and the Planning and Zoning Commission provides a recommendation to council. The following land use recommendations from the Planning and Zoning Commission are being requested: • Resident Multi- family Replacement requirements for the amendment of the approval granted pursuant to Land Use Code Chapter 26.530 (City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). • Growth Management Review — Substantial Amendment for the amendment to a development order authorizing development allotments pursuant to Land Use Code Chapter 26.470 (City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). • Subdivision - Other Amendment for the amendment of the subdivision approval pursuant to Land Use Code Chapter 26.480 (City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). • Planned Unit Development — Other Amendment for the amendment of a site specific development plan pursuant to Land Use Code Chapter 26.445 (City Council is the final review authority after considering a recommendation from the Planning and Zoning Commission). The Planning and Zoning Commission (P &Z) reviewed the application on January 4th and 24th of 2012. The minutes from these meetings are' attached as Exhibits G and H. The Applicant received the following recommendations of approval from the Commission: Planned Unit Development (PUD) — Other Amendment, Subdivision — Other Amendment, Growth Management Review — Substantial Amendment and resident Multi - family Replacement pursuant to Resolution No. 2, Series 2012 (Exhibit F). Special Note: The existing townhome project is entitled under the October 1, 2000, Land Use Code which means the land use reiulations in effect are from 2000 unless otherwise noted. PROJECT SUMMARY: The Applicant, ASV Aspen Street Owners, LLC, was granted approvals to develop thirty one (31) residential multi - family units on parcels 1, 2 and 3 of the South Aspen Street Subdivision via Ordinance No. 32 (Series of - 2003). Since the initial approval, the vested rights associated with the project have been extended on a number of occasions as the property owner worked towards entitling a lodge project (Lodge at Aspen Mountain) on the, site rather than the townhomes. The latest extension, Resolution No. 96 (Series of 2009), permits the vested rights to, be extended until January 28, 2016 with the caveat that the purpose of the extension is to enable the development of a lodge project and that "a six month period of inactivity shall constitute a withdrawal of the application." Page 2 of 9 Since passage of the resolution, new ownership has taken over the property and the six month period of inactivity has occurred (March 1, 2011), resulting in a vesting period that will expire on March 1, 2013. As a result of the upcoming 2013 vested rights expiration date, the present owners are proposing to amend the existing approvals. The new proposal reduces the number of dwelling units on the property from 31 to 24 residential multi - family units by reducing the number of affordable housing units on the site, locating additional affordable housing units off -site at the Airport Business Center (ABC) and proposing a cash -in -lieu payment. In summary, the new proposal contains: • A free - market building containing five (5) dwelling units and one affordable housing building containing ten (10) dwelling units on Parcel 1. Additionally an underground garage to accommodate SkiCo parking (per an agreement with SkiCo) and some parking for the affordable housing is located on Parcel 1. • Three (3) free market triplexes containing a total of nine (9) residential units on Parcels 2 and 3 are proposed with an underground garage accommodating parking for one of the triplexes. Additionally, the Applicant is proposing to merge Parcels 2 and 3 into one lot. • Eight (8) affordable housing dwelling units at the Aspen Airport Business Center. • A cash -in -lieu payment for 3.5 Full Time Equivalents (FTEs) Table 1, below, outlines the proposed dimensional requirements for the project. The highlighted cells are the proposed standards that exceed permitted requirements for the underlying zone district based upon the 2000 code. T� Page 3 of 9 Land Use Reviews: The following land use reviews are the reviews that wer& required in 2000 and under which the townhome project is currently vested. Current standards are provided as background information and, in some instances, to provide a basis for evaluation. Demolition or Replacement of Multi- Family Housing: For approximately twenty years, the City has required a certain amount of affordable housing to be developed when existing free - market multi - family residential dwelling units are demolished. The basis for this requirement was the observation that as existing multi - family units (which had Page 4 of 9 often served as housing for local working residents) were demolished and replaced, the new units no longer housed local working residents. At -the time of the original application only Parcel 3 contained multi - family residential units (the Mine Dump Apartments). In 2000, when this project was originally submitted to the city, the multi - family replacement requirement was somewhat different than today's standards. The, regulation required that fifty percent (50 %) of the bedrooms be replaced, fifty percent (50 %) of the net livable area be replaced, and that fifty percent (50 %) of the replacement net livable area be above grade. Today's standards provide two options for mitigation with the one closest to the 2000 standard requiring the same replacement of bedrooms and net livable area, but today fifty (50 %) of the dwelling units must also be replaced. Table 2: Multi- Family Replacement Requirements Bedrooms Net Livable Area "w . Abovrade -Net ITmts� Mine Dump 23 7,722 N/A 16 Apartments 2000 12 3,861 1,930 N/A Requirements Existing 43 19,538 17 Approval Proposal:Onsite 12 6,630 4,308 ** 10 Proposal: AABC 24 9,656 9,656 8 Proposal Total 36 16,286 13,964 18 Notes: * * Staff has estimated the above grade net livable area square footage by subtracting 3 of the on- site affordable housing units from the total due to the location of grade in comparison to finished floor. Staff Comment: As outlined above in Table 2, both the existing approval and the new proposal meet or exceed the minimum mitigation required in the 2000 Land Use Code by providing on- site affordable housing that meets or exceeds the minimum required 12 bedrooms, exceeds the 3,861 sq. ft. of net livable area and exceeds the 1,930 sq. ft. of above grade net livable area required. The 2000 code required multi family replacement units to be located on -site unless it was determined that units "on -site would be incompatible with adopted neighborhoods plans or would be an inappropriate planning solution due the site's physical constraints. " The 2003 approval provides all of the required replacement multi family units on site including affordable 'housing units on site that exceed the mitigation requirements. Growth Manallement Review for Affordable Housing: The proposal is to amend the existing approvals by reducing the number of affordable housing units on- site, provide some affordable housing off -site at the ABC, and provide a cash payment in lieu. Overall, the proposed eighteen (18) affordable housing units will house 42.5 employees as outlined in Table 3, below. Since the total number of Full Time Equivalents (FTEs) housed under the new proposal is less than the entitled project, the Applicant is offering to pay a cash -m- Page 5 of 9 lieu fee between the difference in FTEs which is 3.5 FTEs or $475,356.00 at a Category 4 fee rate (which is the current income category used when calculating cash in lieu). Table 3: Affordable Housing, Employees Housed Un>t Type Approved Approved Proposed i Proposed ez AH Uni s � �� Employees AH Uits� Employees �jj - ouse 854 �H 3 1 bedroom ,.92 s_ 14 1 bedroom 4 7 8 1 and 2 (4 x 1.75) 1 bedroom (8 x 1.75) 2 bedroom 0 0 2 4.5 1 and 2 7 1 bedroom (2 x 2.25) 3 bedroom 13 39 8 24 1 and 2 (13 x 3) (off -site) (8 x 3) Totals 17 46 18 42.5 The existing entitlements permit the 17 affordable housing units to be rentals rather than for -sale units. These 17 units were deed restricted at a mix of Category 1, 2 and 3 and permitted to be rental units. The bulk of the units are 3 bedroom units whereas the current proposal provides a more even split of one bedroom to three bedroom units. Categories of the new units are proposed to not exceed an average of Category 3. APCHA, which supports the proposal, has requested that all units be no higher than Category 3; however, all of the on -site units are smaller than the minimum net livable area required for Category 3 and 4 (700 s.£/ 1- bedroom & 950 s.£/ 2- bedroom), rather the on -site units meet Category 1 and .2 size standards (700 s.f./ 1- bedroom & 950 s.£/ 2- bedroom). All of the units are proposed to be for sale rather than rental unit. Table 4: Net Livable Area of the proposed Affordable Housing L'ocati n�UriitNo F � �� ilnrtgType� s.� NetLg able�ea q _ft) . Category ; SAllowance On -Site 1 2 bedroom 852 1 and 2 2 2 bedroom 854 1 and 2 3 1 bedroom 602 1 and 2 4 1 bedroom 602 1 and 2 5 1 bedroom 628 1 and 2 6 1 bedroom 602 1 and 2 7 1 bedroom 608 1 and 2 8 1 bedroom 634 1 and 2 9 1 bedroom 604 1 and 2 10 1 bedroom 630 1 and 2 Off -Site 4 units 3 bedroom 1,200 3 and 4 4 units 3 bedroom 1,214 3 and 4 The 2003 approval found the addition of 17 on -site affordable housing units met both the city's needs for affordable housing and, at the time, APCHA found that the proposal met their guidelines. In determining the need for and type of affordable housing preferred, the current APCHA guidelines have a number of policy statements with regard to preferred mitigation options with the development of deed restricted housing that include: Page 6 of 9 The board has prioritized the following mitigation options in order of preference: 1) on- site housing — where affordable housing used for mitigation purposes with regard to the construction or redevelopment of a site be either next to or attached to the development, 2) off -site housing, and 3) cash -in -lieu. With regard to the types of units to construct, APCHA's priorities for the private sector are: For -sale units with an average sales price no higher than Category 3, consisting of one and two bedroom units; as well as Category 3 and 4, for sale, 3 bedroom units. Staff Comment: There is little guidance in the 2000 code with regard to permitting affordable housing units outside of city limits or for providing a cash payment in. lieu of housing; however, the current code in effect does provide additional guidance in the form of two growth management reviews: Provision of required affordable housing units outside city limits (section 26.470.090 (2) and Provision of required affordable housing via a cash -in -lieu payment (section 26470.090 (3). For off -site housing the standards include ensuring that the housing is within the Urban Growth Boundary, that the proposal furthers APCHA's priorities with units, and that any off -site units have all necessary approvals. With regard to accepting a cash -in -lieu, consideration is given as to whether providing housing on —site is impractical, whether a good faith effort to construct off - site housing was made and whether the proposal furthers APCHA's priorities with units. APCHA's listed priority for private sector development is to provide on -site housing, something the existing entitlement provides and the proposed entitlement reduces. Subdivision: Subdivision review was originally required due to the development of multiple affordable housing units on the three parcels. Additionally, the Applicant is requesting to merge parcels 2 and 3 into one lot. Staff Comment: In general, the Applicant meets the subdivision criteria. Planned Unit Development: All three parcels currently have a PUD overlay on them. Any development (or redevelopment) is required to be reviewed and approved prior to development being allowed to commence. The purpose of a PUD, as noted in the Land Use Code "is to encourage flexibility and innovation in the development of land which: A. Promotes the purposes, goals, and objectives of the Aspen Area Community Plan. B. Achieves a more desirable development pattern, a higher quality design and site planning, a greater variety in the type and character of -the development, and a. greater compatibility with existing and future land uses than would be possible through the strict application of the underlying zone district provisions. C. Preserves natural and man -made features of historic, cultural, or scenic value. D. Promotes more efficient use of land, public facilities, and governmental services. Page 7 of 9 E. Incorporates an appropriate level of public input to the planning process to ensure sensitivity to neighborhood and community goals and objectives." A PUD allows variation in the site's dimensional requirements to encourage flexibility and innovation, but does not allow variation in the permitted uses of the site. The Applicants are requesting to amend the. vested approval to reduce the number of dwelling units on the site and change the configuration of improvements on the site. The dimensional requirements that are requested to be. varied from the underlying zoning are related to the Minimum Setback requirements. , Staff Comment: Staff is supportive of affordable housing development within Aspen and recognizes the importance and need for it within the community; however, staff believes that the Applicant does not go far enough in meeting some elements of the PUD criteria. Staff is concerned that the new design does not relate well to the traditional townsite grid, particularly with regard to the triplexes. The subject property is part of the traditional townsite grid and should better relate to it and the grid pattern that is present. The proposed curvilinear townhome pattern along Aspen Street is a development form in .suburban neighborhoods and does not reflect a traditional development pattern, nor does it establish an appropriate relationship "between front facades of buildings and the streets they face. By orienting buildings parallel to the street and maintaining a certain consistency in front setback patterns, there is interaction between residents and passersby and the built environment. " . The additional curb cuts and meandering "street" do not reinforce a traditional circulation pattern that is common for lot and block development and may compromise pedestrian and vehicular safety. Additionally, the `delivery access lane' being proposed is not typical of grid development and increases potential conflicts between people and automobiles by having more curb cuts on the sidewalk. The City Engineer does not support the additional curb cuts being proposed. Although on- street parking along Aspen Street has been removed, leaving concern for where visitors or delivery vehicles may park, public parking will 'be provided underground, as Part of the lodge development across the street, to compensate for the removal of the existing on- street parking. A PUD allows the density of a project to be increased when it "serves one or more goals of the J community as expressed in the AACP ", when the site's physical capabilities can accommodate the density, and when it results in a development pattern compatible with the area. A PUD can also be reduced when there are insufficient public facilities or critical hazards present. In 2003 the City Council approved a project with more density (number of units) than what is currently being proposed. Although providing affordable housing units on -site meets the intent of the AACP, the removal of density does not. The city has limited sites available for infill development, and proposing to locate some affordable- housing off -site at the ABC does not encourage infill projects to integrate more housing into the traditional townsite and does not reach the optimum development potential that a previous council approved on the site. Although within the Urban Growth Boundary, the provision of affordable housing at the ABC does not assist in lessening a resident's reliance on the automobile or develop a project in a more compact form. Page 8 of 9 Staff is supportive of the Applicant potentially changing the exterior architecture of the development as well as amending the unit types (studio, one - bedroom, etc.) of the affordable housing; however, staff is not supportive of moving density from this site to the Airport Business Center. Staff recommends the Applicant consider adding density back onto the site, specifically more affordable housing. Being located in town removes one's dependence on the automobile by providing a pedestrian environment to get to work, recreation, and commercial opportunities. The subject parcels essentially back onto National Forest Service lands and have easy access to nearby parks and trails. The original density approved for the property encourages a more "lights on" neighborhood. REFERRAL AGENCY COMMENTS: The "City Engineer, Fire Marshal, Water Department, Aspen Sanitation District, housing authority, building department and the Parks Department have all reviewed the proposed application and their requirements have been included as conditions of approval when appropriate. RECOMMENDATION: Both APCHA and the Planning and Zoning Commission recommended approval of the proposal; however, staff cannot support the removal of affordable housing from site and relocating in the county. At this point and time, Staff recommends the City Council require that the applicant make substantial revisions to their plans before returning to Council. Changes should maintain affordable housing on -site or within the neighborhood and the site plan should better relate to the town grid. With this present configuration, Staff recommends denial of the proposal if no changes are made. PROPOSED MOTION: "I move to approve the Planned Unit Development (PUD) Amendment for the South Aspen Street PUD on first reading." CITY MANAGER COMMENTS: ATTACHMENTS: EXHIBIT A — PUD Review Criteria EXHIBIT B — Subdivision Review Criteria EXHIBIT C — Affordable Housing (GMQS) Review EXHIBIT D — Resident Multi - Family Replacement Program Review Criteria EXHIBIT E — Development Review Committee Comments, November 2011 EXHIBIT F — Planning and Zoning Commission, Resolution No. 2 (Series of 2012) EXHIBIT G — Planning and Zoning Commission minutes, January 4, 2012 EXHIBIT H — Planning and Zoning Commission, January 24, 2012 EXHIBIT I — Application EXHIBIT J — Proposed Architectural Drawings Page 9 of 9 ORDINANCE NO. 1B (SERIES OF 2012) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING A PLANNED UNIT DEVELOPMENT — OTHER AMENDMENT AND ASSOCIATED LAND USE REVIEWS FOR THE SOUTH ASPEN STREET SUBDIVISION/PUD LEGALLY DESCRIBED AS PARCELS 1, 2, AND 3 SOUTH ASPEN STREET SUBDIVISION/PUD, CITY OF ASPEN, PITKIN COUNTY, COLORADO Parcel IDs: 273513139001, 273513139002, 273513139003 WHEREAS, the Community Development Department received an, application from the ASV Aspen Street Owners, LLC (Applicant), represented by Mitch Haas of Hass Land Planning, requesting the Planning and Zoning Commission recommend approval of a Planned Unit Development — Other Amendment, Subdivision - Other Amendment, Growth Management Review — Substantial Amendment and Resident Multi- family Replacement to amend the existing entitlements associated with the South Aspen Street Subdivision /PUD via a combined review; and, WHEREAS, an application was submitted for an amendment to the existing entitlements for the South Aspen Street Subdivision/PUD, which proposes on Parcel 1 a free - market fiveplex residential building, an affordable housing building containing 10 dwelling units and an underground parking garage. While Parcel 2 and 3 are proposed to be subdivided into one lot containing three free - market triplexes or nine residential dwelling units. Additionally the Applicant will provide eight affordable housing units off -site at the Airport Business Center and provide a cash payment -in -lieu; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire Protection District, Parks Department, Aspen/Pitkin County Housing Authority, and Public Works Department as a result of the Development Review Committee meeting; and, WHEREAS, said referral agencies reviewed the proposed amendment and provided recommendations; and, WHEREAS, after reviewing relevant section of the land use code, the Community Development Director recommended denial of the land use requests; and, WHEREAS, during a regular meeting on December 6, 2011 the Planning and Zoning Commission opened a duly noticed public hearing and continued it to January 3, 2012, and on January 3rd continued the public hearing to January 4th to consider the project; and, WHEREAS, during a special meeting on January 4, 2012 the Planning and Zoning Commission opened a duly noticed public hearing, took testimony and continued the hearing to January 17, 2012 at which point the hearing was .continued to January 24, 2012; and, WHEREAS, during a special meeting on January 24, 2012 the Planning and Zoning Commission opened a duly noticed public hearing, took testimony and recommended City Council approve the PUD Amendment and associated land use requests by a four to two (4 -2) vote, with the findings and conditions listed hereinafter; and, WHEREAS, during a regular meeting on June 25, 2012 the City Council opened a duly noticed public hearing, took testimony and approved the PUD Amendment and associated land use requests by a _to _ (_ -_) vote, with the findings and conditions listed hereinafter; and, Page 1 of 9 WHEREAS, the City Council finds ,that the development review standards for PUD - Other Amendment and related land use reviews are met. NOW, THEREFORE BE IT .RESOLVED that the City Council finds approves the PUD — Other Amendment and associated land use reviews with the conditions listed below. Section 1 General Approval: The City Council approves the following land use reviews: Planned Unit Development — Other Amendment, Subdivision - Other Amendment, Growth Management Review — Substantial Amendment and Resident Multi- family Replacement requirements to amend the South Aspen Street Subdivision/ PUD. The amended development plan permits Parcel 1 to be developed with a free - market building containing five (5) dwelling units and one affordable housing building containing ten (10) dwelling units. Additionally an underground garage to accommodate SkiCo parking (per an agreement with SkiCo) and parking for the affordable housing is provided on the lot. Parcels 2 and 3 are combined to create one lot. On this newly created lot three (3) free market triplexes containing a total of nine (9) residential units with an underground garage, accommodating parking for one of the triplexes, is permitted. Additionally eight, three- bedroom affordable housing units, known as the Pacific Avenue Condominiums, will be developed at the Airport Business Center as part of this amendment. A cash payment -in -lieu for 3.5 Full Time Equivalents (FTEs) is approved as well as a waiver of a traffic impact fee of $147,500.00. Section 2: Subdivision and PUD Pursuant to the procedures and standards set forth in Title 26 of the City of Aspen Municipal Code, the Aspen City Council hereby approves. Subdivision of the property described as parcels 1, 2, and 3 of the South Aspen Street Subdivision/PUD from 3 parcels into 2 parcels: Parcels 1 and 2, as well as a site specific development plan via the PUD review process. A final Subdivision/PUD plat and agreement that meets the requirements of Land Use Code chapter 26.480, Subdivision, and chapter 26.445, Planned Unit Development (PUD), shall be recorded in the Pitkin County Clerk and Recorder's Office within 180 days of the approval of this ordinance. Subdivision/PUD Agreement shall include at a minimum the following information: 1. An illustrative site plan of the project depicting the proposed improvement and the approved dimensional requirements. 2. A grading and drainage plan for the property. 3. Approved landscape plan. Section 3: Financial Assurances Before the Applicant is issued a Building Permit the Applicant shall provide to the Community Development Department the following: Page 2 of 9 A. Cost Estimates. Applicant's General Contractor shall cause to be prepared, and certified as correct, cost estimates for all improvements or development for which a Building Permit is required. The cost estimates for the Public Improvements described herein at Section 7 (as well as typical improvements such as sidewalks, street improvements ,etc.) shall be reviewed and approved by the City Engineer. The cost estimates for the implementation and maintenance of the landscape, plan described herein at Section 14 shall be reviewed and approved by the Parks Department. The cost estimates for all other improvements and development in the Subdivision shall be reviewed and approved by the Building Department. Owner shall be responsible for the implementation and maintenance of the landscape plan and construction and installation of all Public Improvements required by this Ordinance. B. Public Improvements and Landscaping Guarantees. Pursuant to and in conformance with the requirements of § 26.480.070(C) & (D) and § 26.445.070 (C)(3) & (4) of the Aspen Municipal Code; and, in order to secure the performance of the obligations of the Applicant to implement and maintain the Landscape Plan and to ensure the installation of the Public Improvements, Applicant shall provide a guarantee of no less than one hundred and twenty five percent (125 %) of the estimated cost of such Landscape Plan and Public Improvements, as determined and approved in subsection (a), above. The guarantee to implement and maintain the Landscape Plan and to complete Public Improvements shall be made by depositing with the City an irrevocable letter of credit with provisions as hereinafter set forth, or by providing such other security that may be acceptable to the City attorney. If an irrevocable letter of credit is used, the irrevocable letter of credit shall be retained by the City until satisfaction of Applicant's obligations under this Section or earlier released by the City. The letter of credit shall be. issued by a financial institution doing business in Aspen, Colorado, or such other bank as shall be approved by the City; shall have an expiration date no earlier than two years after its date of issue; and shall provide that it may be drawn upon from time to time by the City in such amount or amounts as the City may designate as justified, such amounts not to exceed, in the aggregate, the amount of the letter of credit. Draws under any such letter of credit shall be by a certificate signed by the City Manager of the City of Aspen, or his designee, stating that the City is entitled to draw the specified amount under the terms of this Section. C. Other Improvements and Development. ' With respect to all other, improvements or development within the Project, the Applicant shall provide evidence satisfactory to the Community Development Department and the City Attorney's Office that the Applicant has in place sufficient financing to accomplish and complete all the development for which a Building Permit is sought. Such financing may include, without limitation, a construction loan from an institutional lender or lenders and equity capital investments from the Applicant or third party investors. The City Attorney shall have sole discretion in determining if the proposed financing as advanced by the Applicant is sufficient to complete the development activity for which a Building Permit is sought. D. Financial Assurances for Completion of the Project. The Applicant further commits and agrees that before any Building Permit (including demolition, access /infrastructure, and /or site preparation permits) is issued for the Project approved by this Ordinance, the Applicant shall provide to the City Building Department and the City Attorney for review and approval a copy of a Performance Bond issued or committed to be issued to the Applicant's General Contractor by an institutional surety company pursuant to which the surety agrees to provide the funds necessary to complete the construction of the improvements covered by the Building Permit, and all public improvements required under the Subdivision/PUD Agreement, or by providing such other security that may be Page 3 of 9 r acceptable to the City attorney. If a Performance Bond is used, the Performance Bond shall name the Applicant and the City of Aspen as additional beneficiaries or insureds thereunder to grant to either or both of them a direct right of action under the Performance Bond in order to construct or finish public improvements, and to complete the construction of the improvements covered by the. Building Permit. Section 4: Site Protection Fund The Applicant hereby commits and agrees that before any Building Permit (including demolition, access /infrastructure, and/or site preparation permits) is issued for the Project approved by this Ordinance, the Applicant shall deposit with Pitkin County Title, Inc. ( "Escrow Agent ") the sum of $250,000 in the form of cash or wired funds (the "Escrow Funds ") and ,will execute an Escrow Agreement and Instructions with the Escrow Agent which recites and agrees as follows: "In the event construction work on the Project shall cease for sixty (60) days or longer (`work stoppage') prior to a final inspection by. the City of the work authorized by the Foundation/Structural Frame Permit on the Project, then the City in its discretion may draw upon the Escrow Funds from time to time as needed for purposes of protecting and securing the Project site and improvements from damage by the elements and /or from trespass by unauthorized persons, and for purposes of improving the Project site to a safe condition such that it does not become an attractive, nuisance or otherwise pose a threat to neighbors or other persons." The Escrow Funds or any remaining balance thereof shall be returned to Applicant upon completion by the City of a final inspection of the work authorized by the Foundation/Structural Frame Permit on the Project. Section 5: Dimensional Standards The building as presented in the plans dated June 25th public hearing and attached as Exhibit A to this Ordinance comply with the effective dimensional allowances and limitations of the Lodge (L) zone district except as modified below. Compliance with these requirements shall be verified by the City of Aspen Zoning Officer at the time of building permit submittal. The following dimensions are approved: Minimum Lot Parcel 1: Size 42,549 sq. ft. Parcel 2: 61,969 sq. ft. Lot 1,650 sq. ft. per Area/Dwelling bedroom (54 Unit bedrooms on 89,127 sq. ft. of net lot area for density calc.) Minimum Lot Parcel 1: Width 60 Feet Page 4 of 9 Dimensional Approved Requirement Dimensions 3 Parcel 2: 60 Feet Minimum Front Parcel 1: Yard Setback 15 Feet Parcel 2 6„ Minimum Side Parcel 1 Yard Setback 2 Feet','.AM Parcel 2 1, 6„ Minimum Rear Parcel 1 P Yard Setback Parcel 2: 10'-4" Maximum Height 28Feet Percent Open > 27% Space Floor Area <.83:1 Ratio (FAR) Max. Multi- N/A Family Unit Size Minimum Off- 12 Street Parking Affordable housing 28 Free Market housing 30 SkiCo Section 6: Building The applicant may. not submit a Building Permit Application until the requirements in Land Use Code § 26.304.075.A, Building Permit Application, are fulfilled. The building permit application shall include the following: 1. A copy of the Development Order issued by the Community Development Department (see § 26.304.075(A)(2), City of Aspen Municipal Code.) 2. A copy of the final City Council Ordinance. 3. The conditions of approval shall be printed on the cover page of the Building Permit set. Page 5 of 9 4. A construction management plan (CMP) and drainage report pursuant to Engineering and Building Department requirements. 5. Accessibility and ANSI requirements shall meet adopted Building Code requirements. Section 7: Engineering Final design shall be compliant with all sections of the City of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department inclusive but not limited to the Urban Runoff Management Plan Requirements (URMP), snow and mudslide impacts. The project is located in a landslide hazard area, as a result the project must not impact any slope movement as analyzed by inclinometers. To ensure there has been no impact, the project must continue to measure the inclinometers until 1 year after the project completion. Section 8: Affordable Housing All of the affordable housing units shall meet the APCHA Guidelines. All the units shall be `for sale" units sold through the lottery system, unless the "protected" tenants from the original Mine 'Dump Apartments have a priority for the on -site units. The Applicant may choose three purchasers for the affordable housing units that qualify via APCHA's guidelines. A cash -in -lieu payment of 3.5 FTEs, at a Category 4 income level is accepted by the city and will accessed using the calculation method and fee schedule in effect at the time the applicant submits a building permit. In the alternative, Affordable Housing Credits may be purchased. Following are the number and type of units approved. Each unit shall meet the minimum net livable area required per category. `Locarion s Unit Nos Umt Type " Category Allowance On -Site 2 2 bedroom 1 and 2 (Parcel 1) 8 1 bedroom 1 and 2 -Site 8 3 bedroom 3 -rOff —(Parcel 2) The Certificate of Occupancy for the free - market portion shall not be issued until the Certificate of Occupancy for all of the deed restricted units have been executed (both on and off - site). All deed restrictions shall be recorded coincident with the recordation of the condo plat and prior to the issuance of the Certificate of Occupancy At a minimum the deed restriction shall include: A. If there are protected tenants form the former Mine Dumps apartments that have a priority for a new unit, the list of those tenants will need to be provided to APCHA and each of the tenants will be required to qualify under the Guidelines at the time of marketing the units. B. To allow the developer the priority to pick three owners of on -site units as long as they qualify in the top priority per Part VII of the Aspen/Pitkin County Employee Housing Guidelines. C. All of the units, on -site and off -site, will be ownership units. D. Due to the mix of free - market and affordable housing units on -site, APCHA recommends that the condominium declaration, for the on -site units be modeled after the documents provided for the Page 6 of 9 Aspen Walk free - market/affordable - housing project. The condominium documents shall be reviewed and approved by APCHA prior to recordation. E. The existing Pacific Avenue AH housing units include a playground that will be adjacent to the new Pacific Ave units. The developer must explore the provision of cost sharing for the maintenance and insurance of the playground and if an agreement can be reached, to include it in the new condo declarations. F. The applicant and APCHA staff shall meet prior_to deed - restricting the on -site and off -site units to determine categories for the units. All AH units shall be no higher than Category 3. G. A capital reserve study shall be provided for both on site and off site affordable housing projects at the time of the issuance of the Certificate of Occupancy. H. All AH units shall include a complete suite of standard appliances; i.e., refrigerator /freezer, stove /oven, microwave, garbage disposal, dishwasher, and clothes washer and dryer hookups. Section 9: Fire Mitigation All codes adopted by the Aspen Fire Protection District shall be met. This includes but is not limited to access (International Fire Code (IFC), 2003 Edition, Section 503), approved fire sprinkler and fire alarm systems (IFC, as amended, Section 903 and 907). Section 10: Utilities The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Utility placement and design shall, meet adopted City of Aspen standards. Section 11: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. A "Line Extension Request" and a "Collection System Agreement" are required for this application. Section 12: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 13: School Lands Dedication and Impact Fees The Applicant shall pay all impact fees and the school lands dedication assessed at the time of building permit application submittal and paid at building permit issuance. Section 14: Parks A formal vegetation protection plan shall be required with building permit application. An approved tree permit will be required before any demolition or access infrastructure work takes place. Final layout of plantings requires Park Department approval. Section 15: Vested Rights The development approvals granted herein shall constitute a site - specific development plan and a vested property right pursuant to Land Use Code Section 26.308.011 attaching to and running with the Subject Page 7 of 9 Property and shall confer upon the 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 three (3) 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. For purposes of this provision, the submission and acceptance of a building permit application for the restoration of the Benton Building as part of the enlargement of a historic landmark that is deemed complete by the Chief Building Inspector pursuant to Land Use Code Section 26.304.075 shall prevent the expiration of the vested rights of the applicant and any related development orders under Land Use Code Section 26.304.070.D. 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 three (3) 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: 720 East Hyman Avenue, the Aspen - Athletic Club Building Condominiums, Lots Q, R and S, Block 104, City and Townsite of Aspen, Colorado, by Ordinance of the City Council of the City 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 16: 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. Section 17: Page 8 of 9 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 18: 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 19: A public hearing on this ordinance shall be held on the 25`x' day of June, 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 29`" day of May, 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY, adopted, passed and approved this day of , 2012. ATTEST: Kathryn Koch, City Clerk APPROVED AS TO FORM: James R. True, City Attorney Page 9 of 9 Michael C. Ireland, Mayor EXHIBIT A Chapter 26.445, PLANNED UNIT DEVELOPMENT Sec. 26.445.050. Review Criteria conceptual, final, consolidated and minor PUD. A development application for conceptual, final, consolidated, conceptual and final or minor PUD shall comply with the following standards and requirements. Due to the limited issues associated with conceptual reviews and properties eligible for minor PUD review, certain standards shall not be applied as noted. The burden, shall rest upon an applicant to show the reasonableness of the development application and its conformity to the standards and procedures of this Chapter and this Title. A. General requirements. 1. The proposed development shall be consistent with the Aspen Area Community Plan (AACP). Staff Finding Staff does not believe the development is consistent with the AACP. While a number of general elements related to the location of development are met, the project does not meet some of the AACP's overarching goals. Specifically, staff is concerned about the proposal to relocate some of the affordable housing to the Airport Business Center (ABC). The 2000 AACP states that "development of affordable housing within the traditional town site should be encouraged" and notes that "when employees have the ability live near where they work, their reliance on the automobile lessons and they have greater opportunities to become a part of the town's social fabric." The approved project places all of the housing on -site, while the new proposal moves many of the units outside City limits. Staff does not find that this meets the intent of the AACP. In addition, the proposed site plan, curb cuts, and landscape retaining walls do not promote the kind of pedestrian feel that is called for in the land use code or the AACP: Staff believes that a number of the goals in the Aspen Area Community Plan are met, but that the Applicant does not go far enough in meeting some elements of the AACP. 2. The proposed development shall be consistent with the character of existing land uses in the surrounding area. Staff Finding The neighborhood consists of a variety of multi - family residential development and some lodging. The proposal is for multi - family residential development with a mix of free - market units and affordable - housing units. Staff finds this criterion to be met. 3. The proposed development shall not adversely affect the future development of the surrounding area. Exhibit A — PUD Review Criteria Page 1 of 13 Staff Finding Staff has serious concerns related to the number of curb cuts and the curvilinear nature of the street being proposed on parcels 2 and 3. The proposal, particularly parcels 2 and 3, does not relate well to the traditional townsite grid, nor the approved Lift 1 Lodge. That project is well related to the traditional street grid, and staff believes that pattern should be carried through the rest of the area. While the area is relatively built -out, staff is concerned that an approval which increases setbacks and fails to relate to the street could negatively impact the future streetscape and set an inappropriate precedent. Staff finds this criterion is not met. 4. The proposed development has either been granted GMQS allotments, is exempt from GMQS, or GMQS allotments are available to accommodate the proposed development and will be considered prior to, or in combination with, final PUD development plan review. Staff Finding The Applicant has received approval for the development by meeting city requirements with regard to demolition or replacement of multi - family residential .dwelling units. Under the current proposal, the application requires fewer allotments for the affordable housing component (from 17 to '10), as less units are being proposed on the site. Staff finds this criterion to be met. B. Establishment of Dimensional Requirements: The final PUD development plans shall establish the dimensional requirements for all properties within the PUD as described in General _ Provisions, Section 26.445.040, above. The dimensional requirements of the underlying zone district shall be used as a guide in determining the appropriate dimensions for the PUD. During review of the proposed dimensional requirements, compatibility with surrounding land uses and existing development patterns shall be emphasized. The PUD development plans establish dimensional requirements for all- properties in a YUV. lne proposea aimensional requirements are iistea neiow: Minimum Lot Size 6,000 sq. ft. 6,000 sq. ft. 3,000 sq. ft. Parcel 1: 42,549 sq. ft. Parcel 2: 61,969 sq. ft. Lot 1,100 sq. ft. per 1 bedroom per 3,000 sq. ft. 1,650 sq. ft. per Area/Dwelling bedroom (81 1,000 sq. ft. (free - market 1 bedroom (54 Unit bedrooms on residential) bedrooms on 89,127 sq. ft. of 89,127 sq. ft. of lot area for net lot area for Exhibit A — PUD Review Criteria Page 2 of 13 ice.. D ... imensional % A p rvd used Requirement Project Dimensional Dimensional ; Dimensions Efj r n Requi eme is R equirements, .° v� Wiz. K h density) density calc.) , Minimum Lot 60 Feet 60 Feet 30 Feet Parcel l: Width 60 Feet Parcel 2: 60 Feet Minimum Front 10 Feet 10 Feet 5 Feet Parcel 1: Yard Setback 15 Feet �} Parcel2 Minimum Side 5 Feet 5 Feet 5 Feet Parcel�l�� ' Yard Setback 2 Feet? PParcel' 2 1' 6„ Minimum Rear 10 Feet 10 Feet 5 Feet Parcel l Yard Setback Parcel 2: 10'-4" Maximum 28 Feet 28 Feet 28 Feet Height 28Feet Percent Open 27% 25% N/A > 27% Space Floor Area .83:1 1:1 1:1 <.83:1 Ratio (FAR) Max. Multi- N/A N/A 1,500 sq. ft. N/A Family Unit Size Minimum Off- 30 2 spaces per 1 space per unit 12 Street Parking Affordable dwelling unit or Affordable housing 1 space per housing 28 28 dwelling unit if Free Market a studio or one Free Market housing bedroom housing 30 SkiCo 1. The proposed dimensional requirements for the subject property are appropriate and compatible with the following influences on the. property: Exhibit A — PUD Review Criteria Page 3 of 13 a. The character of, and compatibility with, existing and expected future land uses in the surrounding area. Staff Finding There are examples of multi - family residential development within the neighborhood. Staff finds this criterion is met. b.. Natural or man -made hazards. . Staff Finding The project is located within the Blue Mudflow Zone. As a result, prior to Council, the project will need analyze and mitigate any mudflow impacts as outlined in city standards. The Applicant has agreed to meet these requirements. Staff finds this criterion to be met. c. Existing natural characteristics of the property and surrounding area such as steep slopes, waterways, shade, and significant vegetation and landforms. Staff Finding Most of the development proposed is within areas of the site that have already been impacted by development and /or previous grading. However, the proposed development includes many retaining walls that are the result of the development not working with the topography. Staff finds this criterion not to be met. d. Existing and proposed man -made characteristics of the property and the surrounding area such as noise, traffic, transit, pedestrian circulation, parking, and historical resources. Staff Finding The applicant proposes to relocate much of the affordable housing to the ABC. Staff believes this is inappropriate, and could have the effect of increasing traffic in the general Aspen area. The property is near the commercial core, making it ;well within walking distance for the project's residents. This allows a resident to have less reliance on the automobile. Staff finds this criterion is not met. 2. The proposed dimensional requirements permit a scale, massing, and quantity of open space and site coverage appropriate and favorable to the character of the proposed PUD and of the surrounding area. Staff Finding Under the Parks, Open Space & the Environment chapter of the AACP one of the Policies notes that the city should "encourage infill projects that integrate more housing into the existing urban fabric." Adding open space to this project contradicts Exhibit A — PUD Review Criteria Page 4 of 13 the policy of encouraging more infill housing. In addition, more open space is inappropriate given the general neighborhood character. Staff believes the previously approved project meets this standard, but that this proposal does not. Staff finds this criterion is not met. 3. The appropriate number of off - street parking spaces shall be established based on the following considerations: a., The probable number of cars used by those using the proposed development including any non - residential land uses. b. The varying time periods of use, whenever joint use of common parking is proposed. c. The availability of public transit and other transportation facilities, including those for pedestrian access and /or the commitment to utilize automobile disincentive techniques in the proposed development. d. The proximity of the proposed development to the commercial core and general activity centers in the city. Staff Finding The current proposal of off - street parking exceeds the land use codes parking standards. Staff finds this criterion to be met._ 4. The maximum allowable density within a PUD may be reduced if there exists insufficient infrastructure capabilities. Specifically, the maximum density of a PUD may be reduced if: a. There is not sufficient water pressure, drainage capabilities or other utilities to service the proposed development. b. There are not adequate roads to ensure fire protection, snow removal and road maintenance to the proposed development. Staff Finding Adequate public facilities exist to serve both the proposed development and the entitled development that was approved in 2003. Staff finds this criteria not applicable. 5. The maximum allowable density within a PUD may be reduced if there exists natural hazards or critical natural site features. Specifically, the maximum density of a PUD may be reduced if: a. The land is not suitable for the proposed development because of ground instability or the possibility of mudflow, rock falls or avalanche dangers. b. The effects of the proposed development are detrimental to the natural watershed, due to runoff, drainage, soil erosion and consequent water pollution. Exhibit A — PUD Review Criteria Page 5of13 c. The proposed development will have a pernicious effect on air quality in the surrounding area and the City. d. The design and location of any proposed structure, road, driveway or trail in the proposed development is not compatible with the terrain or causes harmful disturbance to critical natural features of the site. Staff Finding At this time, Staff does not find that significant natural.hazards on the site are present that would necessitate a density reduction. The property had existing development on it prior to demolition and is vested with an approval that permits higher density on the site. Staff finds this criterion to be met. 6. The maximum allowable density within a PUD may be increased if there exists a significant community goal to be achieved through such increase and the development pattern is compatible with its surrounding development patterns and with the site's physical constraints. a. The increase in density serves one or more goals of the community as expressed in the Aspen Area Community Plan (AACP) or a specific area plan to which the property is subject. b. The site's physical capabilities can accommodate additional density and there exists no negative physical characteristics of the site, as identified in Subparagraphs 4 and 5, above, those areas can be avoided or those characteristics mitigated. c. The increase in maximum density results in a development pattern compatible with and complimentary to, the surrounding existing and expected development pattern, land uses and characteristics. Notes: a. Lot sizes for individual lots within a PUD may be established at a higher or lower rate than specified in the underlying Zone District as long as, on average, the entire PUD conforms to the maximum density provisions of the respective Zone District or as otherwise established as the maximum , allowable density pursuant to a final PUD Development Plan. b. The approved dimensional requirements for all lots within the PUD are required to be reflected in the final PUD development plans. Staff Finding No increase in the maximum density is proposed, rather a reduction in density is requested. In 2003 the City Council approved a project with more density (number of units) than what is currently being proposed. Although providing affordable housing units on -site meets the intent of the AACP; the removal of density does not. The city has limited sites available for infill development, and proposing to locate some affordable housing off -site at the ABC does not encourage infill projects to integrate more housing into the traditional townsite and does not reach the optimum development potential that a previous council approved on the site. Although within the Urban Growth Boundary, the provision of affordable housing at the ABC does not Exhibit A — PUD Review Criteria Page 6 of 13 assist in lessening a resident's reliance on the automobile or develop a project in a more compact form. C. Site Design. The purpose of this standard is to ensure the PUD enhances public spaces, is complimentary to the site's natural and man'-made features and the adjacent public spaces, and ensures the public's health and safety. The proposed development shall comply with the following: 1. Existing natural or man -made features of the site which are unique, provide visual interest or a specific reference to the past, or contribute to the identity of the town are preserved or enhanced in an appropriate manner. Staff Finding There are no significant natural or manmade features on the site. Staff finds this criterion to be met. 2. ,Structures have been clustered to appropriately preserve significant open spaces and vistas. Staff Finding The parcels currently proposed to be redeveloped are located within the original townsite. There are no significant view planes, or open spaces adjacent to the property that should be considered as part of the redevelopment. 3. Structures are appropriately oriented to public streets, contribute to the urban or rural context where appropriate, and provide visual interest and engagement of vehicular and pedestrian movement. Staff Finding The proposed development is moving away from a more traditional grid development design and creating a more suburban design with the site plan of the free - market component along Aspen Street. The additional curb cuts and driveway along Aspen are not typical of traditional block development. Staff does not find this criterion met. 4. Buildings and access ways are appropriately arranged to allow emergency and service vehicle access. Staff Finding The City of Aspen Fire Marshal has reviewed the proposal, and has noted that additional information will be required to show appropriate fire department access. The Applicant will meet this prior to council review. 5. Adequate pedestrian and handicapped access is provided. Exhibit A — PUD Review Criteria Page 7 of 13 Staff Finding According to the Application, the project will comply with all applicable requirements. This has been included as a condition of any approval. Staff finds this criterion to be met. 6. Site drainage is accommodated for the proposed development in a practical and reasonable manner and shall not negatively impact surrounding properties. Staff Finding According to a letter submitted by the Applicant's engineer, site drainage will be handled) to maintain historic runoff. Staff finds this criterion will be met. 7. For non - residential land uses, spaces between buildings are appropriately designed, to accommodate any programmatic functions associated with the use. Staff Finding Staff finds this criterion to not be applicable. D' Landscape Plan. The purpose of this standard is to ensure compatibility of the proposed landscape with the visual character of the city, with surrounding parcels, and with existing and, proposed features of the subject property. The proposed development shall comply with the following: 1. The landscape plan exhibits a well designated treatment of exterior spaces, preserves existing significant vegetation, and provides an ample quantity and variety of ornamental plant species suitable for the Aspen area climate. Staff Finding The Applicant has provided a landscape plan for the site.,The Parks Department has requested some changes to the plan. As part of the review,before City Council, an amended landscaping plan will be submitted. Staff finds this criterion to be met. 2. Significant existing natural and man -made site features, which provide uniqueness and interest in the landscape, are preserved or enhanced in an appropriate manner. Staff Finding There are no significant natural or man -made features that require preservation. Staff finds this criterion to not be applicable. 3. The proposed method of protecting existing vegetation and other landscape features is appropriate. Exhibit A — PUD Review Criteria Page 8 of 13 Staff Finding The Applicant will provide a final landscape plan prior to City Council review, incorporating Park Department comments. This will ensure existing landscaping is preserved or mitigated for if it is to be removed. Staff finds this criterion to be met. E. Architectural Character. 1. Be compatible with or enhance the visual character of the City, appropriately relate to existing and proposed architecture of the property, represent a character suitable for and indicative of the intended use and respect the scale and massing of nearby historical and cultural resources. 2. Incorporate, to the extent practical,_ natural heating and cooling by taking advantage of the property's solar access, shade and vegetation and by use of non- or less - intensive mechanical systems. 3. Accommodate the storage and shedding of snow, ice and water in a safe and appropriate manner that does not require significant maintenance. Staff Finding Aspen's "design history ranges from Victorian to Bauhaus, from 50's "ski instructor" to postmodern, to contemporary." Staff believes the proposed architecture is an improvement over the heavy timber design approved in 2003. Both the entitled development and the proposal under consideration are subject to the Residential Design Standards. As noted in a staff memo in 2003, the proposal did "not meet all of the residential design standards. However, because the proposal is being reviewed as a site specific development plan by means of going through the PUD review process, a waiver from the Residential Design Standards may be granted as part of the PUD." It was also noted that a waiver was appropriate as the design standards were geared towards single family and duplex development rather than the. multi - family development that was being proposed. Since that approval in 2003, the design standards have been modified to have only certain design standards be applicable to multi - family development. Multi- family development is required to meet: • Building orientation. This standard requires the front fagade of a building to be parallel with the street. The middle and upper triplexes do not meet this standard. • Garage setbacks. This standard requires a garage accessed from the street to be set 10 feet behind the front fagade of the building. All garages provided at grade meet the requirement. Staff is concerned with the garage.access to the upper triplex as it is forward of the building along Aspen Street. • Street oriented entrance and principal window and First Story element. Multi - family units are required to have one street facing door for every four units and front units must have a principal window as well as have, a first story element (often provided in the form of a porch). Additional review of these two criteria is required as some of the porch elements are unclear on the plan. Exhibit A — PUD Review Criteria Page 9 of 13 • Windows. Only one non - orthogonal window per fagade of each building is permitted. Only the affordable housing building meets this standard. • Lightwells. Light wells are not permitted beyond the frontmost wall of the street facing facades of a building. The fiveplex does not meet this standard. Staff finds this criterion not to be met. F. Lighting. 1. The purpose of this standard to ensure the exterior of the development will be lighted in an appropriate manner considering both public safety and general aesthetic concerns. 2. All exterior lighting shall in compliance with the outdoor lighting standards unless otherwise approved and noted in the final PUD documents., Up- lighting of site features, buildings, landscape elements and lighting to call inordinate attention to the property is prohibited for residential development. Staff Finding The PUD will comply with all lighting regulations in place. A more detailed plan will be provided as part of the Final PUD. G. Common Park, Open Space, or Recreation Area. If the proposed development includes a common park, open space, or recreation area for the mutual benefit of all development in the proposed PUD, the following criteria shall be met: 1. The proposed amount, location, and design of the common park, open space, or recreation area enhances the character of the proposed development, considering existing and proposed structures and natural landscape features of the property, provides visual relief to the property's built form, and is available to the mutual benefit of the various land uses and property users of the PUD. 2. A proportionate, undivided interest in all common park and recreation areas is deeded in perpetuity (not for a number of years) to each lot or dwelling unit owner within the PUD or ownership is proposed in a similar manner. 3. There is proposed an adequate assurance through a legal instrument for the permanent care and maintenance of open spaces, recreation areas, and shared facilities together with a deed restriction against future residential, commercial, or industrial development. Staff Finding Exhibit A — PUD Review Criteria Page 10 of 13 Parcel 1 will contain a landscaped park area as was approved in the original approvals. The applicant is proposing that it be managed by the HOA. Staff finds this criterion to be met. H. Utilities and Public facilities. The purpose of this standard is to ensure the development does not impose an undue burden on the City's infrastructure capabilities and that the public does not incur an unjustified financial burden. The proposed utilities and public facilities associated with the development shall comply with the following: 1. Adequate public infrastructure facilities exist to accommodate the development. Staff Finding The Water, Sanitation, and Electric Departments reviewed this application and determined there is adequate service for this development. Staff finds this criterion to be met. 2. Adverse impacts on public infrastructure by the development will be mitigated by the necessary improvements at the sole cost of the developer. Staff Finding At this time no adverse impacts are anticipated. Staff finds this criterion to be met. 3. Oversized utilities, public facilities, or site improvements are provided appropriately and where the developer is reimbursed proportionately for the additional improvement. Staff Finding No oversized utilities, public facilities, or site improvements are proposed. Staff finds this criterion is not applicable. I. Access and Circulation. (Only standards 1&2 apply to Minor PUD applications) The purpose of this standard is to ensure the development is easily accessible, does not unduly burden the surrounding road network, provides adequate pedestrian and recreational trail facilities and minimizes the use of security gates. The proposed access and circulation of the development shall meet the following criteria: 1. Each lot, structure, or other land use within the PUD has adequate access to a public street either directly or through an approved private road, a pedestrian way, or other area dedicated to public or private use. Staff Finding Staff believes that all structures and uses have access to a public street. The application proposes to install sidewalks along the property. However, staff is Exhibit A — PUD Review Criteria Page 11 of 13 concerned about the access drive proposed and the number of curb cuts in the project. Staff finds this criterion to be met. 2. The proposed development, vehicular access points, and parking arrangement do not create traffic congestion on the roads surrounding the proposed development, or such surrounding roads are proposed to be improved to accommodate the development. Staff Finding The original application proposed one driveway access for Parcel 2 and 3 off of Aspen Street, the proposed application now proposes 3 driveway access points. Staff believes a reduction in access points is important and will improve the safety and pedestrian accessibility of the area. Additionally, three driveway access points are not consistent with the purposes, goals and objectives and policies of the Aspen Area Community Plan (AACP). In the AACP, it discusses "improving safety for pedestrians, bicyclists, mass transit riders, and automobiles in the Aspen area." The spacing of driveways is an important element in roadway planning, design and operation. Access points are a major source of accidents. Their location and spacing affects the safety and functional integrity of the roadway. Too many closely spaced driveways increase the accident potential, not only for the roadway but also for any sidewalks in the area. Research has shown that accident rates generally increase with both the frequency of access and the average daily traffic; however, the greatest increases resulted from increasing the number of access points per mile. Staff finds that this criterion is not met. 3. Areas of historic pedestrian or recreational trail use, improvements of, or connections to, the bicycle and pedestrian trail system, and adequate access to significant public lands and the rivers are provided through dedicated public trail easements and are proposed for appropriate improvements and maintenance. Staff Finding The proposed development will not require any trail easements. Staff finds this criterion to be met. 4. The recommendations of the Aspen Area Community Plan and adopted specific plans regarding recreational trails, pedestrian and bicycle paths, and transportation are proposed to be implemented in an appropriate manner. Exhibit A — PUD Review Criteria Page 12 of 13 Staff Finding The Applicant has agreed to provide sidewalks along the property but there are no specific trails or paths that are required. Staff finds this criterion to be met. 5. Streets in the PUD which are proposed or recommended to be retained under private ownership provide appropriate dedication to public use to ensure appropriate public. and emergency access. Staff Finding There are no internal streets proposed as part of this PUD. Staff finds this criterion to be met. 6. Security gates, .guard posts, or other entryway expressions for the PUD, or for lots within the PUD, are minimized to the extent practical. Staff Finding There are no gates or guard posts proposed as part of this PUD. Staff finds this criterion to be met. J. Phasing of Development Plan. (does not apply to Conceptual PUD applications) The purpose of this criteria is to ensure partially completed projects do not create an unnecessary burden on the public or surrounding property owners and impacts of an individual phase are mitigated adequately. If phasing of the development plan is proposed, each phase shall be defined in the adopted final PUD development plan. Staff Finding No phasing is proposed as part of this development. Staff finds this criterion is not applicable. Exhibit A — PUD Review Criteria Page 13 of 13 EXHIBIT B SUBDIVISION REVIEW Section 26.480.050 of the City Land Use . Code provides that development applications for Subdivision must comply with the following standards and requirements. A. General Requirements. a. The proposed subdivision shall be consistent with the "Aspen Area Comprehensive Plan. Staff Finding Staff does not believe the development is consistent with the AACP. While a number of general elements related to the location of development are met, the project does not meet some of the AACP's overarching goals. Specifically, staff is concerned about the proposal to relocate some of the affordable housing to the ABC. The 2000 AACP states that "development of affordable housing within the traditional town site should be encouraged" and notes that "when employees have the ability live near where they work, their reliance on the automobile lessons and they have greater opportunities to become a part of the town's social'fabric." The approved project places all of the housing on -site, while the new proposal moves many of the units outside City limits. Staff does not find that this meets the intent of the AACP. In addition, the proposed site plan, curb cuts, and landscaping do not promote the kind of pedestrian feel that is called for in the land use code or the AACP. Staff believes that a number of the goals in the Aspen Area Community Plan are met, but that the Applicant does not go far enough in meeting some elements of the AACP. b. The proposed subdivision shall be consistent with the character of existing land uses in the area. Staff Finding The neighborhood consists of a variety of multi - family residential development and some lodging. The proposal is for multi- family residential development with a mix of free - market units and affordable - housing units. Staff finds this criterion to be met. c. The proposed subdivision shall not adversely affect the future development of surrounding areas. Staff Finding Staff has serious concerns related to the number of curb cuts and the curvilinear nature of the street being proposed on parcels. The proposal, particularly parcels 2 and 3,does not relate well to the traditional townsite grid, nor the approved Lift 1 Lodge. That project is well related to the traditional street grid, and staff believes that pattern should be carried through the rest of the area. While the area is relatively built -out, staff is concerned that an approval Exhibit B — Subdivision Review Criteria Pagel of 3 which increases setbacks and fails to relate to the street could negatively impact the future streetscape set an inappropriate precedent. Staff finds this criterion is not met. d. The proposed subdivision shall be in compliance with all applicable requirements of this Title. Staff Finding At this point in the review, staff does not believe the application is in compliance with all of the requirements of Title 26 (such as the Residential Design Standards). Staff finds this criterion is not met. B. Suitability of land for subdivision. a. Land suitability. The proposed subdivision shall not be located on land unsuitable for development because of flooding, drainage, rock or soil creep, mudflow, rockslide, avalanche or snowslide, steep topography or any other natural hazard or other condition that will be harmful to the health, safety, or welfare of the residents in the proposed subdivision. b. Spatial pattern efficient. The proposed subdivision shall not be designed to create spatial patterns that cause inefficiencies, duplication or premature extension of public facilities and unnecessary public costs. Staff Finding Staff believes that the .property is suitable for subdivision. The sloped site contains no overly steep topography and no extreme geologic hazards that may harm the health of any of the inhabitants of the proposed development. The engineering department is requiring additional study with regard to any mudflow impacts and slope movement. In addition, Staff believes that there will not be a duplication or premature extension of public facilities because the property to be subdivided is already served by adequate public facilities. Therefore, Staff finds this criterion to be met. C. Improvements. The improvements set forth at Chapter 26.580 shall be provided for the proposed subdivision. These standards may be varied by special review (See, Chapter 26.430) if the following conditions have been met: 1. A unique situation exists for the development where strict adherence to the subdivision design standards would result in incompatibility with the Aspen Area Comprehensive Plan, the existing, neighboring development areas, and /or the goals of the community. 2. The applicant shall specify each design standard variation requested and provide justification for each variation request, providing design recommendations by professional engineers as necessary. Exhibit B — Subdivision Review Criteria Page 2 of 3 Staff Finding The Applicant has consented in the application to meet the applicable improvements pursuant to Section 26.580. Staff finds this criterion to be met. D. Affordable housing. A subdivision which is comprised of replacement dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.530, Replacement Housing Program. A subdivision which is comprised of new dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.470, Growth Management Quota System. Staff Finding The Applicant, is providing the required multi- family replacement affordable housing units as required by the Land Use Code in effect in 2000. Staff finds this criterion to be met. E. School Land Dedication. Compliance with the School Land Dedication Standards set forth at Chapter 26.630. Staff Finding The proposed subdivision is required to meet the School Land Dedication Standards pursuant to Land Use Code Section 26.630. The Applicant has proposed to pay cash -in -lieu of providing land, which will be paid prior to building permit issuance. Thus, staff finds this criterion to be met. F. Growth Management Approval. Subdivision approval may only be granted to applications for which all growth management development allotments have been granted or growth management exemptions have been obtained, pursuant to Chapter 26.470. Subdivision approval may be granted to create a parcel(s) zoned Affordable Housing Planned Unit Development (AH -PUD) without first obtaining growth management approvals if the newly created parcel(s) is required to obtain such growth management approvals prior to development through a legal instrument acceptable to the City'Attorney. (Ord. No. 44- 2001, § 2) Staff Finding The proposed project is has already been entitled and the amendment proposed requires less allotments than what was originally granted. Staff finds this criterion met. Exhibit B — Subdivision Review Criteria Page 3 of 3 a EXHIBIT C Section 26.470.070 (.1), Affordable Housing Growth Management Quota System Exemption Section 26.470.070 (J), Affordable Housing, of the regulations provides that, "All affordable housing deed restricted in accordance with the housing guidelines of the City Council and its housing designee shall be exempt [from the GMQS scoring and competition procedures]." Review is by City Council. The section goes on to state that: The review of any request for exemption of housing pursuant to this section shall include a determination of the city's need for such housing, considering the proposed development's compliance with an adopted housing plan, the number of dwelling units proposed and their location, the type of dwelling units proposed, specifically regarding the number of bedrooms in each unit, the size of the dwelling unit, the rental/sale mix of the proposed development, and the proposed price categories which the dwelling units are to be deed restricted. Staff Finding The 2003 approval found the addition of 17 on -site affordable housing units met both the city's needs for affordable housing and, at the time, APCHA found that the proposal met their guidelines. These seventeen units were deed restricted at a mix of Category 1, 2 and 3 and permitted to be rental units. The current proposal requests to develop 18 affordable housing units, with 8 of the units located at the Airport Business Center. Categories of all of the units are proposed to not exceed an average of Category 3. APCHA has requested that all units be no higher than Category 3; however, all of the on -site units are smaller than the minimum net livable area required for Category 3 and 4, rather the on -site units meet Category 1 and 2 size standards. All of the units are proposed to be for sale rather than rental unit. Additionally a cash - payment in -lieu is proposed. In determining the need for and type of affordable housing preferred, the current APCHA guidelines have a number of policy statements with regard to preferred mitigation options with the development of deed restricted housing that include: • The board has prioritized the following mitigation options in order of preference: 1) on- site housing — where affordable housing used for mitigation purposes with regard to the construction or redevelopment of a site be either next to or attached to the development, 2) off -site housing, and 3) cash -in -lieu. Exhibit C - GMQS for Affordable Housing Review Criteria Page 1 of 2 • With regard to the types of units to construct, APCHA's priorities for the private sector are: For -sale units with an average sales price no higher than Category 3, consisting of one and two bedroom units; as well as Category 3 and 4, for sale, 3 bedroom units. Today's affordable housing standards provide more specificity with regard to the development of affordable housing, both in form and location. With regard to form the units need to meet the ACHA guidelines, be designed so that 50% of the finished floor of each unit is above grade, and be deed restricted as for sale units. There is little guidance in the 2000 code with regard to permitting affordable housing units outside of city limits or for providing a cash - payment in lieu of housing; however, the current code in effect does provide additional guidance in the form of two growth management reviews: Provision of required affordable housing units outside city limits and Provision of required affordable housing via a cash -in -lieu payment. ' For off -site housing the standards include ensuring that the housing is within the Urban Growth Boundary, the proposal furthers APCHA's priorities with units and the off -site units have all necessary' approvals. With regard to accepting a cash -in -lieu consideration , as to whether providing housing on —site is impractical, that a good faith effort to construct off -site was made and that the proposal furthers APCHA's priorities with units. APCHA's listed priority for private sector development is to provide on -site housing, something the existing entitlement provides and the proposed entitlement reduces. Staff does not find this criterion met. Exhibit C - GMQS for Affordable Housing Review Criteria Page 2 of 2 EXHIBIT D Chapter 26.530, Resident Multi- Family Replacement Program Section 26.530.050, Housing replacement requirements A. Minimum Replacement requirement. In the event of the demolition of resident multi- family housing, the owner shall be required to construct replacement housing consisting of no less than fifty (50) percent of the square footage of net residential area demolished or converted. The replacement housing shall be configured in such a way as to replace fifty (50) percent of the bedrooms that are lost as working resident housing by demolition. A minimum of fifty (50) percent of the replacement housing shall be above natural grade. The replacement housing shall be deed restricted as affordable housing in accordance with the requirements of section 26.530.060, below. Staff Finding Both the existing approval and the new proposal exceed the minimum mitigation required in the 2000 Land Use Code by providing more affordable housing than the required 12 bedrooms, 3,861 sq. ft. of net livable area (total) and 1,930 sq. ft. of above grade net livable area. Staff finds this criterion -from the 2000 code to be met. Since 2000, the Demolition or Replacement of Multi - Family Housing standard has been amended, allowing multiple options to meet the mitigation requirements. Under today's code the on -site affordable housing would not mitigate the proposed free market residential; however, the combined on -site and off -site affordable housing proposal meets the current Demolition or Replacement of Multi - Family Housing standard by providing 100% replacement of bedrooms, dwelling units and net livable square footage of the former Mine Dumps Apartments. B. Location of replacement housing. Multi- family replacement units shall be developed on the same site on which demolition has occurred, unless the owner shall demonstrate that replacement of the units on -site would be incompatible with adopted neighborhood plans or would be an inappropriate planning solution due o the site's physical constraints. When either of the above circumstances result, the owner shall replace the maximum number of units on -site which the City Council determines that the site can accommodate and may replace the remaining units of -site, within the Aspen Metropolitan Area. When the owner's housing replacement requirements involves a fraction of a unit, cash in lieu may be provided to meet the fractional requirement only. The amount of a cash -in -lieu shall be computed using the formula set fourth at Section 26.620.020. Staff Finding The 2000 code required multi - family. replacement units to be located on -site. The 2003 approval provides all of the required replacement multi- family units on site in addition to the extra affordable housing units on site. The current proposal of on -site affordable housing meets the minimum multi - family replacement requirements. Staff finds this criterion from the 2000 code to be met. Exhibit D — Multi - Family Replacement Review Criteria Page 1 of 2 C. Timing and quality of replacement unit. Replacement units shall be available for occupancy at the same time as the new unit or units, regardless of whether the replacement units are built on -site or off -site, and shall contain fixtures, finish and amenities requires by the housing designee's guidelines. When replacement units are proposed to be built off - site, the owner shall be required to obtain a development order approving the off -site development prior to or in conjunction with obtaining a development order approving redevelopment on the site on which demolition is proposed to take place. Staff Finding As outlined in the 2003 approvals for the townhome development and included in the draft resolution, no Certificate of Occupancy (C.O.) shall be issued for the free - market component of the project unless C.O.s are issued for all of the affordable housing units both on -site and off- site. Staff finds this criterion to be met. Section 26.530.060, Rental and resale restrictions - Replacement units shall be deed restricted in a form and substance acceptable to the City Council. Such deed restricted units may only be rented or sold to tenants or buyers who meet the city's qualifications in effect at the time of sale or rental, and at sale process or rental which are also in compliance with the city's current regulations. The owner shall be entitled to select tenants or purchasers subject to the aforementioned qualifications. The mix of affordable housing units, as between category affordable housing and resident occupied, may be determined by the owner, provided that no less than twenty (20) percent of the bedrooms qualify as category 1 and 2 and no more than twenty (20) percent of the units are available as resident occupied units. Staff Finding In 2003, the approved PUD permitted all of the affordable housing units to be rental units and -are required to have a deed .restriction on the units meeting APCHA guidelines. Today, the Applicant is proposing that the units be for -sale units meeting APCHA guidelines. Staff finds this criterion to be met. Exhibit D — Multi - Family Replacement Review Criteria Page 2 of 2 November 2011 Project: South Aspen Street PUD City of Aspen - Development Review Committee Comments Engineering Department These comments are not intended to be exclusive, but an initial response to the project packet submitted for purpose of the DRC meeting. Drainage: General note: The applicant- stated in DRC that the design for the site will meet the Urban Runoff Management Plan Requirements (URMP). Staff was not able to determine whether or not the site will meet these requirements. A full review will be completed when there is enough information to review. Additionally, as recommended in the 2002 Geologic evaluation performed by CTL Thompson, the drainage plan should allow for a 40 — 50 percent sediment loading in additional to the water volumes determined. Design of site drainage should ensure that blockage of the site drainage from debris / mudflow and overflow do not occur. A conceptual drainage plan and report is needed so that Staff can determine whether or not-the application meets the URMP requirements. A final compliant drainage plan must be submitted prior to final plat. Staff was unable to determine whether or not the site is able to meet the Drainage Principals: 1. Consider stormwater quality needs early in the design,process 2. Use the entire site when planning for stormwater quality treatment. 3. Avoid unnecessary impervious area. 4. Reduce runoff rates and volumes to more closely match natural conditions. 5. Integrate stormwater quality management and flood control. 6. Develop stormwater quality facilities that enhance the site, the community, and the environment. 7. Use a treatment train approach. 8. Design sustainable facilities that can be safely maintained. Traffic Impacts: The current approvals for the application require a traffic impact fee of $147,500. During DRC the applicant stated that they will request to have this fee waived. Before the fee can be waived, Staff needs to determine what traffic impacts there are currently and how these impacts will be mitigated. At the time of the original approvals Staff determined that Aspen Street could handle the additional 136 trips on a capacity basis, however the pavement section would not be able to handle the trips. Since the applicant wants the traffic impact fee waived, a new analysis must be performed. As part of this analysis Staff will be looking at the impacts from a quality of service point of view. In particular, the additional trips will impact the pedestrian experience along Aspen Street. To mitigate this impact Staff recommends that the sidewalk along Aspen Street is relocated so that there is a separation between the traffic on Aspen Street and the pedestrians utilizing the sidewalk. Driveway Access The original application proposed one driveway access for Parcel 2 off of Aspen Street, the proposed application now proposes 3 driveway access points. Staff will only permit one driveway access as the original plans depict. According to the City of Aspen Municipal Code Chapter 21.16.060, only one driveway cut per lot is permitted for residential, commercial and lodge districts. Additionally, three driveway access points are not consistent with the purposes, goals and objectives and policies of the Aspen Area Community Plan (AACP). In the AACP, it discusses "improving safety for pedestrians, bicyclists, mass transit riders, and automobiles in the Aspen area." The spacing of driveways is an important element in roadway planning, design and operation. Access points are a major source of accidents. Their location and spacing affects the safety and functional integrity of the roadway. Too many closely spaced driveways increase the accident potential, not only for the roadway but also for the shared use path along Cemetery Lane. Research has shown that accident rates generally increase with both the frequency of access and the average daily traffic; however, the greatest increases resulted from increasing the number of access points per mile. Mud Flow / Landslide / Snow slide Hazard The project is located within the Blue Mudflow Zone. As a result, prior to Council, the project will need analyze and mitigate any mudflow impacts as outlined in the URMP. The project is located in a landslide hazard area, as a result the project must not impact any slope movement as analyzed by inclinometers. To ensure there has been no impact, the project must continue to measure the inclinometers until 1 year after the project completion. The project is located in a snow slide area, as a result, prior to Council the project will need to analyze and mitigate any snow slide impacts. Dean Avenue Access The Deane Avenue Access off of Garmisch Street has been altered from the original plans. The original plans had a continuous access which extended to Aspen Street. The new plan shows this access terminating into subgrade parking. As a result the new plan will have more impacts to Garmisch Street. Prior to Council, the plans for the Dean Avenue Access need to be completed including profiles and cross sections. Additionally the impacts to existing parking for Timber Ridge Condo on the Dean Avenue access need to be quantified. Juan and Garmisch Street The profile of these streets has changed from the original plan. Please explain these changes and why they were made. The cross sections need to show how the proposed grades will tie into existing grades. Additional cross sections are needed at each curb cut. The parking on Garmisch will not be permitted. It is located within the site triangle of the Dean Street Access, additionally the slope is excess of 11 % making it difficult to maneuver in the Winter. The original plans for the site showed a detached sidewalk on Juan Street. The new plans will need to be revised to depict a detached sidewalk on both sides of Juan Street. Construction Management — A construction management plan must be submitted in conjunctionwith the building permit application. The plan must include a planned sequence of construction that minimizes construction impacts to the public. The plan shall describe mitigation for: parking, staging/encroachments, truck traffic, noise, dust, and erosion/sediment pollution. Excavation Stabilization — Due to the proximity of the neighboring property and the ROW, the excavation of the building the City will require an excavation stabilization plan prior to building permit submittal. Fee in Lieu —This project is considered a Major project and is subject to the Fee in Lieu please refer to Section 2.12.140 of the Municipal Code. Parks Department 1) The amended parking and entry design for. the affordable housing structure significantly impact the large cottonwood tree located on dean street. The Parks Department cannot support the current design because of these impacts and the developer's intention and staff supported protection of the tree. Staff requests greater detail on the actual grades and proposed surfaces, construction impacts and excavations. Significant changes to the design of this area are required before the Parks Department can support this portion of the development. 2) Tree Protection: A vegetation protection fence shall be erected at the drip line of each individual tree or groupings of trees remaining on site and their represented drip lines. A formal plan indicating the location of the tree protection will be required for the-bldg permit set. No excavation, storage of materials, storage of construction backfill, storage of equipment, foot or vehicle traffic allowed within the drip line of any tree remaining on site. This fence must be inspected by the city forester or his/her designee (920 -5120) before any construction activities are to commence. 3) Additional Tree Protection Measures: • Roots: The applicant will need to contract with a tree service, and have them on call in order to address all roots greater than 2 inches in diameter. Roots 2" or greater shall be professionally pruned with the on call tree service. Root trenching will be required around all trees with excavation under the drip line or next to the drip line. This can be accomplished by an experienced tree service company or trained member of the contractor's team. • Excavation: All excavations adjacent to the drip zone will be required to be vertical excavation only, with no over digging. Excavations will be soil stabilized in a manner that prevents over excavation of the site. This will require a one sided pour for all foundation walls located within these protection zones. Any excavation adjacent to the large cotton wood tree located adjacent to the affordable housing site is required to be a vertical excavation, see below for details. Due to the proximity and nature of the excavation the applicant will be required to fence off a larger protection zone -past the drip line of the tree. This protection zone located within the non- excavated area shall be twice the width of the drip line. Approval of all protection zones is required. • Mulching: Six inches of mulch is required to be placed within the zone of vegetation protection. The mulch shall be maintained at a level of 6 inches during the entire project. • Irrigation: Irrigation of trees is required throughout the entire length of the project. The Contractor will supply water to the trees at a rate which is appropriate for proper health. Additional watering will take place along the edge of the roots . cutting. The contractor will be required to place a burlap protection cover over the cut roots. The contractor will irrigate the burlap with an appropriate amount of water in order to keep the burlap moist. • Access: Any access•across or through the area of protection is prohibited at all times. 4) Landscqping and Sidewalk Landscaped area: Landscaping in the public right of way will be subject to landscaping in the ROW requirements. • ROW requirements require adequate irrigation pressure and coverage, if a system is not in place one will need to be added. 5) All sidewalks, parking areas and walkways adjacent to protected trees shall be designed and built in a manner that reduces the impact to existing trees and root systems. All hard surfaces located within the drip line of trees to be saved shall be built on grade in a manner that allows for the sub -grade prep and sidewalk to float over the roots preventing any excavation into the soil. All work in protection zone is to be accomplished without machines, handwork only. These requirements are subject to the City of Aspen tree code. 6) An approved tree permit will be required before any demolition or significant property changes take place. Parks is requiring that the tree permit be approved prior to submission of the building permit. Please contact the City Forester at 920 -5120. 7) The project team should investigate the possibility of additional street tree plantings along the east side of Garmisch Street. 8) The sidewalk along the south side of Juan Street was detached from the curb in the original approvals and is now shown as attached. Landscaping in the ROW standards requires that sidewalks should be detached when space is available, all plantings within the detached green space should conform to COA right of way planting requirements. Zoning 1. The use of two codes is confusing and does not aid in the transparency of comparison between the existing approvals and the new proposal. 2. Please address the RDS variances which will be required with this proposal. 3. Trash enclosures South Aspen Street PUD Amendment: With regard to trash enclosures in rear yard. Please note the current code does not exempt trash enclosures from setback requirements. 4. Allowed Projections into Setbacks Wildlife- resistant Trash and Recycling enclosures located in residential zone districts shall be prohibited in all yards facing a Street. These facilities may be placed within non - street facing yards if the enclosure is the minimum reasonably necessary in both height and footprint, is an unconditioned space not integrated with other structures on the property, and serves no other purpose such as storage, garage space, or other purposes unrelated to protecting wildlife. Wildlife - resistant trash and recycling enclosures located in commercial mixed -use or lodging zone districts are not exempt from setback requirements and shall comply with zone district requirements for Utility /Trash/Recycle areas. 5. The current the Lodge Zone district does not have a requirement for public amenity space: a. Public Amenity section 26.575.030(B) Applicability and requirements states, "Exempt from these provisions shall be development consisting . entirely of residential uses." 6. Dimensional Requirements' table page 11: Under the `Maximum Multi - Family Dwelling Unit Size' row; the 2011 Lodge Zone district column lists 1,500 sq ft of net livable area. With an increase of not more than 500 additional; sq ft applied per unit. Under the column `Proposed PUD under Lodge zone district there is, "no requirement "? Please clarify and provide information on the net livable size of the units. 7. Section III Proposed Development, page 7, the second paragraph claims, "the applicant has designed the amendment proposal to comply w /current codes with respect to dimensional requirements, calculation methodology and measurements" and Page 13 claims the height and FA are calculated per current code. Would the applicant consider using one code? Building Department We have done a preliminary review for compliance on this project to the policies and codes as currently adopted and amended per Title 8 of the Aspen Municipal Code. The comments are intended to provide the applicant with corrections or concerns that may require further development or be re drawn to show compliance. We are available to schedule a meeting to- discuss these items at your earliest convenience. Please either email me at denism(cr�ci.aspen.co.us or call at 970 - 429 -2761. 1) We have adopted the 2009 edition of the International Codes. The two of the triplexes will be reviewed to IRC the upper most triplex and rest of the buildings will be reviewed to the IBC. 2) Provide an address scheme for the site to be reviewed prior to permit submittal. 3) We have questions about the exiting from the basement parking facility. 4) The original submission had proposed all type B accessible units. This proposal eliminates more than"half of those. The applicant may consider a type C visit able unit that is now an option in the ANSI standard. 5) We recommend a pre construction meeting when the project plans are further developed to discuss the stabilization, fire resistive, energy code, etc. Housing RECOMMENDATION: The Housing Board reviewed the application at their regular meeting held November 16, 2011, and is recommending approval with the following conditions: All the units shall be sold through the lottery system, unless the "protected" tenants have a priority for the on -site units. If this is the case, the list of those tenants will need to be provided to APCHA and each of the tenants will be required to qualify under the Guidelines at the time of marketing the units. 2. To allow the developer the priority to pick three owners of on -site units as long as they qualify in the top priority per Part VII of the Aspen/Pitkin County Employee Housing Guidelines. 3. All of the units, on -site and off -site, will be ownership units. 4. Due to the mix of free- market and affordable housing units on -site, APCHA recommends that the condominium declaration for the on -site units be modeled after the documents provided for the AspenWalk free - market/affordable - housing project. The condominium documents shall be reviewed and approved by APCHA prior to recordation. 5. The existing Pacific Avenue AH housing units include a playground that will be adjacent to the new Pacific Ave units. The developer must explore the provision of cost sharing for the maintenance and insurance of the playground and if an agreement can be reached, to include it in the new condo declarations. 6. The applicant and APCHA staff shall meet prior to deed - restricting the on -site and off -site units to determine categories for the units. All AH units shall be no higher than Category 3. 7. The Board recommends use of the housing credit certificate program for the additional 3.5 FTE's versus the cash -in -lieu mitigation; however, if the cash -in- lieu fee is accepted, the fee shall be based on the amount stated in the Aspen/Pitkin County Employee Housing Guidelines in affect at the time of building permit. A capital reserve study shall be provided for both on site and off site affordable housing projects at the time of the issuance of the Certificate of Occupancy. 9. All deed restrictions shall be recorded coincident with the recordation of the Condo Plat and prior to the issuance of the Certificate of Occupancy. The Certificate of Occupancy for the free - market portion shall not be issued until the Certificate of Occupancy for the deed restricted units have been executed. 10. All AH units shall include a complete suite of standard appliances; i.e., refrigerator /freezer, stove /oven, microwave, garbage disposal, dishwasher, and clothes washer and dryer hookups. Sanitation Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. On -site utility plans require approval by ACSD. Oil and Sand separators are required for parking garages and vehicle maintenance establishments. Driveway entrance drains must drain to drywells. Elevator shafts drains must flow thru o/s interceptor Old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements. Below grade development may require installation of a pumping system. One tap is allowed for each building. Shared service line agreements may be required where more than one unit is served by a single service line. Permanent improvements are prohibited.in sewer easements or right of ways. Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public ROW or easements to be dedicated to the district. All ACSD fees must be paid prior to the issuance of a building permit. Peg in our office can develop an estimate for this project once detailed plans have been made available to the district. Where additional development would produce flows that would exceed the planned reserve capacity of the existing system (collection system'and or treatment system) an additional proportionate fee will be assessed to eliminate the downstream collection system or treatment capacity constraint. Additional proportionate fees would be collected over time from all development in the area of concern in order to fund the improvements needed. Where additional development would produce flows that would overwhelm the planned capacity of the existing collection system and or treatment facility, the development will be assessed fees to cover the costs of replacing the entire portion of the system that would be overwhelmed. The District would fund the costs of constructing reserve capacity in the area of concern (only for the material cost difference for larger line). A "Line Extension Request" and a "Collection System Agreement" are required for this application. Both are ACSD Board of Director's action items. The glycol heating and snow melt system must be designed to prohibit and discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. The district will be able to respond with more specific comments and requirements once detailed building and utility plans are available. RESOLUTION NO.2 (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN PLANNING AND ZONING. COMMISSION RECOMMENDING CITY COUNCIL APPROVE A PLANNED UNIT DEVELOPMENT — OTHER AMENDMENT AND ASSOCIATED LAND USE REVIEWS FOR THE SOUTH ASPEN STREET SUBDIVISION/PUD LEGALLY DESCRIBED AS PARCELS 1, 2, AND 3 SOUTH ASPEN STREET. SUBDISVION/PUD, CITY OF ASPEN, PITKIN COUNTY, COLORADO Pareel IDs: 273513139001, 273513139002, 273513139003 WHEREAS, the Community Development Department received an application from the ASV Aspen Street Owners, LLC (Applicant), represented by Mitch Haas of Hass Land Planning, requesting the Planning and Zoning Commission recommend approval of a Planned Unit Development -- Other Amendment, Subdivision - Other Amendment, Growth Management Review — Substantial Amendment and Resident Multi- family Replacement to amend the existing entitlements associated with the South Aspen Street Subdivision /PUD via a combined review; and, WHEREAS, an application was submitted for an amendment to the existing entitlements for the South Aspen Street Subdivision/PUD, which proposes on Parcel 1 a free - market fiveplex residential building, an affordable housing building containing 10 dwelling units and an underground parking garage. While Parcel 2 and 3 are proposed to be subdivided into one lot containing three free - market triplexes or nine residential dwelling units. Additionally the Applicant will provide eight affordable housing units off -site at the Airport Business Center and provide a cash payment -in -lieu; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire Protection District, Parks Department, Aspen/Pitkin County Housing Authority, and Public Works Department as a result of the Development Review Committee meeting; and, WHEREAS, said referral agencies reviewed the proposed amendment and provided recommendations; and, WHEREAS, after reviewing relevant section of the land use code, the Community Development Director recommended denial of the land use requests; and, WHEREAS, during a regular meeting on December 6, 2011 the Planning and Zoning Commission opened a duly noticed public hearing and continued it to January 3, 2012, and on January 3`d continued the public hearing to January 4th to consider the project; and, WHEREAS, during a special meeting on January 4, 2012 the Planning and Zoning Commission opened a duly noticed public hearing, took testimony and continued the hearing to January 17, 2012 at which point the hearing was continued to January 24, 2012; and, WHEREAS, ' during a special meeting on January 24, 2012 the Planning and Zoning Commission opened a duly noticed public hearing, took testimony and recommended City Council approve the PUD Amendment and associated land use requests by a four to two (4 -2) vote, with the findings and conditions listed hereinafter; and, WHEREAS, the Commission finds that the development review standards. for PUD Other Amendment and related land use reviews are met. Pagel of 4 NOW, THEREFORE BE IT RESOLVED that the Planning and Zoning Commission recommends that the City Council approve the PUD — Other Amendment and associated land use reviews with the conditions listed below. Section 1: The Planning and Zoning Commission recommends approval of the following land use reviews: Planned Unit Development — Other Amendment, Subdivision -- Other Amendment, Growth Management Review — Substantial Amendment and Resident Multi - family Replacement requirements to amend the South Aspen Street Subdivision/ PUD. The amended development plan permits Parcel 1 to be developed with a free - market building containing five (5) dwelling units and one affordable housing building containing ten (10) dwelling units. Additionally an underground garage to accommodate SkiCo parking (per an agreement with SkiCo) and parking for the affordable housing is provided. Parcels 2 and 3 are combined to create one lot. On this newly created lot three (3) free market triplexes containing a total of nine (9) residential units with an underground garage accommodating parking for one of the triplexes is permitted. Additionally eight, three- bedroom affordable housing units, known as the Pacific Avenue Condominiums, will be developed at the Airport Business Center as part of this amendment. A cash payment -in -lieu of $475,356.00 is accepted. _ Finally, prior to City Council review, Applicant will look into staff's concerns with regard to retaining walls on the site. Section 2: Building The final design shall meet adopted building codes and requirements if and when a building permit is submitted. No building permit shall be issued for any component of the South Aspen Street development until building permits are issued for the related affordable housing units to be developed at the Airport Business Center. Section 3: Engineering Final design shall be compliant with all sections of the City of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department. Prior to City Council review: a) A conceptual drainage report shall be submitted to the Engineering department to verify compliance with Urban Runoff Management Plan Requirements (URMP). b) A new traffic analysis shall be submitted to the City Engineer prior to City Council Review if the Applicant intends to request a waiver of the traffic impact fee of $147,500.00. c) The project is located within the Blue Mudflow Zone. As a result, prior to Council review, the project will need analyze and mitigate any mudflow impacts as outlined in the URMP. d) The project is located in a snow slide area, as a result, prior to Council review the project will need to analyze and mitigate any snow slide impacts. Page 2 of 4 e) Prior to Council review, the plans for the Dean Avenue access need to be completed including profiles and cross sections. The cross sections need to show how the proposed grades will tie into existing grades. Additional cross sections are needed at each curb cut. f) Prior to Council review, the plans for Juan and Garmisch cross sections need to show how the proposed grades will tie into existing grades. Additional cross sections are needed at each curb cut. According to the City of Aspen Municipal Code Chapter 21.16.060, only one driveway cut per lot is permitted for residential, commercial and lodge districts; any changes to that requirement will need City Council approval. The project is located in a landslide hazard area, as a result the project must not impact any slope movement as analyzed by inclinometers. To ensure there has been no impact, the project must continue to measure the inclinometers until 1 year after the project completion. The parking on Garmisch will not be permitted. The original plans for the site showed a detached sidewalk on Juan Street. The new plans will need to be revised to depict a detached sidewalk on both sides of Juan Street. Section 4: Affordable Housin All of the affordable housing units shall meet the APCHA Guidelines. All the units shall be `.for sale' units sold through the lottery system, unless the "protected" tenants from the original Mine Dump Apartments have a priority for the on -site units. The Applicant may choose three purchasers for the affordable housing units that qualify via APCHA's guidelines. All deed restrictions shall be recorded coincident with the recordation of the condo plat and prior to the issuance of the Certificate of Occupancy. The Certificate of Occupancy for the free - market portion shall not be issued until the Certificate of Occupancy for all of the deed restricted units have been executed (both on and off - site). ' Section 5: Fire Mitigation All codes adopted by the Aspen Fire Protection District shall be met. This includes but is not limited to access (International Fire Code (IFC), 2003 Edition, Section 503), approved fire sprinkler and fire alarm systems (IFC, as amended, Section 903 and 907). Section 6: Public Works The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Utility placement and design shall meet adopted City of Aspen standards. Section 7: Sanitation District Repuiremients Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. A "Line Extension Request" and a "Collection System Agreement" are required for this application. Page 3 of 4 Section 8: Exterior Lighting All exterior. lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 9: School Lands Dedication and Impact Fees The Applicant shall pay all impact fees and the school lands dedication assessed at the time of building permit application submittal and paid at building permit issuance. Section 10: Parke A formal vegetation protection plan shall be required with building permit application. An approved tree permit will be required before any demolition or access infrastructure work takes place. Final layout of plantings require Park Department approval. The ,project team should investigate the possibility of additional street tree plantings along the east side of Garmisch Street. The sidewalk along the south side of Juan Street was detached from the curb in the original approvals and is now shown as attached. Landscaping in the ROW standards requires that sidewalks should be detached when space is available, all plantings within the detached green space should conform to COA right of way planting requirements. Prior to City Council review an amended landscape plan shall be submitted for review by staff incorporating notes from the November 2011 Development Review Committed meeting. Section 11: This Resolution shall not affect any existing litigation and shall not operate as an abatement of any, action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded . under such prior ordinances. Section 12: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Commission at a special meeting on January 24, 2012. APPROVED AS TO FORM: PLANNI OD ZONING COMMISSION: im True, Special Counsel L amer, C it ATTEST: ckie Lothian,, Deputy City Clerk Page 4 of 4 ...................... Special City Planning & Zoning Meeting — Minutes — January 4, 2012 MOTION.- LJErspamer moved to approve the minutes from December 6rh seconded by Jasmine Tygre. All in favor APPROVED. Bert said there was a full board so why not extend it for the nominations for chair and vice chair. Stan opened the appointments for Chair and Vice -Chair to be voted on separately. Jim DeFrancia nominated Stan Gibbs for Chair. Jasmine Tygre nominated LJ Erspamer for Chair. Stan Gibbs nominated Jasmine Tygre for Chair. Jim True counted the votes for chair and there were 4 votes were for LJ Erspamer as Chair. Stan Gibbs asked for nominations for Vice Chair. Bert Myrin nominated Stan Gibbs and Jasmine Tygre for Vice Chair. Jasmine Tygre nominated Bert Myrin for Vice Chair. Bert Myrin declined his nomination. Jim True stated that Stan Gibbs received the most votes. MOTION: Jim DeFrancia moved to approve Resolution #001 -12 to approve LJ Erspamer as Chair and Stan Gibbs as Vice Chair. Jasmine Tygre seconded. A11 in' favor, APPROVED. Conflicts of Interest None stated. Public Hearing: South Aspen Street PUD - PUD Amendment LJ Erspamer opened the Public Hearing for South Aspen Street PUD. Jennifer Phelan said the request before you is to amend the existing approvals for this South Aspen Street PUD. Jennifer said the owners were ASV Aspen Street Owners LLC and they are being represented by Poss Architecture and Mitch Haas. Jennifer stated the existing parcel is located on Lots 1, 2 and 3, which are adjacent to Aspen Street. Jennifer reiterated that this is to amend the approvals that are vested; the existing approvals were for 31 on -site housing units, 14 are free market and 17 were approved to be affordable housing units. It was a residential multi- family project that was approved; this approval occurred in 2003 and the original. application was submitted in 2000. Jennifer said the applicant is before you to reduce the entitlements to reduce the on -site housing to a total of 24 units; 14 will be free- market and 10 will be affordable housing and proposed 8 off site affordable housing units at the ABC'and a cash payment in lieu. Also proposed are some site layout changes and architectural changes to the exterior of these residential buildings. 3 Special City Planning & Zoning Meeting — Minutes — January 4, 2012 Jennifer said that P &Z's role was to make recommendations on these land use requests to Council; the approvals that are being vested are amendments to basically the residential multi - family replacement program, growth management for the affordable housing and a subdivision and PUD Amendment. Council is the final approval of all reviews. Jennifer said that this was submitted under the 2000 land use code and approved 2003 for the 31 residential multi - family units, the townhomes. Jennifer said the vesting has been extended while the owner has tried to get a lodge development through; the last vesting of rights for this project was in 2009 and the vesting approval said that if there was a period of inactivity for 6 months then a 2 year vesting clock would start ticking and Aspen Mountain did not materialize and there was a 6 month period of inactivity that was said to occur of March 1, 2011. So the applicant needs to submit by March 1, 2013 either a building permit for the approvals that were granted in 2003 or their vesting will expire. , Jennifer said the applicant was here with a different proposal and the proposal today was for Parcel 1, which is adjacent to Dean and Juan Streets to be developed with a 5 plex free - market building and 1 affordable housing building with 10 affordable housing units and an underground parking. garage which will require some SkiCo parking, some affordable housing parking. Parcel 2 and 3 are the higher part of South Aspen Street are proposed to be combined into 1 lot and is to be developed with 3 triplexes with a total of 9 units. Jennifer said the land use reviews were under the 2000 Land Use Code because it is still a vested project and they are asking for amendments for those rules and regulations that were in place in the original application. The 2000 code required that 50% of the bedrooms and 50% of the net.livable be replaced with affordable housing and half of that affordable housing needed to be above grade. Jennifer said in table 2 of the memo on Page 5; at the time in the original proposal they exceeded the affordable housing on site. In 2000 they were proposing 43 bedrooms as opposed to the 12 that were required. Today's project proposed 10 units on site and that alone meets the 12 bedrooms requirement on site; the square footage on site and in addition the applicant is proposing 8 three bedroom units at the ABC that are about 1200 square feet a piece. Jennifer said that you end up with 36 units both on site and at the ABC; there is about 16, 280 square feet of net livable, which is less than was approved but in excess of the 2000 requirement. The applicant does meet the review requirement for demolition of multi - family housing; just on site and in excess of what's being proposed off site. Jennifer said that APCHA did approve this proposal as well as the 2000 proposal; APCHA also 4 Special City Planning & Zoning Meeting — Minutes — January 4, 2012 approved the cash -lieu being proposed and asking for an average of category 3 per unit. This new proposal is in conflict with the preferred options of onsite housing in APCHA's policy statement. Jennifer said that in subdivision they are looking to merge lots 2 and 3 creating a larger lot; it does meet the intent of subdivision standards. Jennifer said the final review on the land use side is the Planned Unit Development, so this property is located in the lodge zone district but is approved for a townhome development on it. And also has an overlay on the site; the PUD creates a site specific approval which is the townhomes. Jennifer said today the applicants are requesting a new site specific approval; in general it reduces the number of dwelling units on the site; it changes certain setbacks on certain property lines and also changes the footprints of the building on the ground. Jennifer said staff is concerned with the overall building setbacks and they are highlighted in the staff memo, that are the curb cuts and the footprint of the buildings to the street do not reinforce the traditional grid development of town. Staff is also concerned about the use of retaining walls on the site even though it is a steep site _there is an opportunity to do that more sensitively on the site. Jennifer said the biggest concern was the reduction of density on the site; .off site housing does not assist in lessening our reliance on the automobile. Staff is supportive to changes to the site plan; the skin of the project, it is more modern and staff can support unit type changes if the applicant thinks that would be a better mix of types on the site but staff does not support moving density out of the city limits. Cliff Weiss asked the number of units proposed. Jennifer replied the original proposed 31 units ( 14 free - market and 17 affordable) and the current proposal is 24 on site residential units { 14 free - market and 10 affordable housing) and 8 off -site affordable housing units. Jim DeFrancia asked on table 3 what sounds like more units you only have 42'/2 employees housed. Jennifer said there was a total change in number of bedrooms and unit types so what is being proposed is less employees that 3.5 cash -in -lieu proposal to get you to that 46. Stan Gibbs asked if there was a drawing that shows the setbacks. Jennifer answered the site plan. Stan asked if they indicated where the issues were. Jasmine Tygre said in the minutes of the final approval there was a comment in the final PUD in front of Council where neighbors complemented the applicant in reducing the height from 28 feet to 25 feet but your chart shows 28 feet. Mitch 5 Special City Planning & Zoning Meeting — Minutes — January 4, 2012 Haas said the Ordinance said 28 feet but you will see a comparison of the buildings proposed and the buildings approved. Jasmine said the overall FAR is going to stay the same according to this chart, is that correct. Mitch replied it will actually be lower, the chart established the maximum and they were not exactly sure how to calculate them so they calculated the numbers under today's code. _ LJ Erspamer asked about page 7 regarding Subdivision; you said in general the applicant meets the subdivision criteria; what don't they meet. Jennifer responded the subdivision requirements have some engineering standard review criteria and they do meet the subdivision review criteria. LJ said that we received another packet on this are they the same. Jennifer said that they were exactly the same except for the addition of one sentence that is you needed me to bring extra copies. LJ asked if the engineer is going to do the traffic analysis; it is accordance to the National Standards and P &Z will not be seeing this. Jennifer replied that the engineer would like a little more analysis for the area.. Bert Myrin said on page 2 it states the 4 reviews and asked if they all fell under one of those. Jennifer responded what you have read are more the criteria for the PUD. Bert asked if staff felt that the first 3 were mostly met. Jennifer replied the residential replacement is met according to the 2000 code. Jennifer said the growth management review is basically a substantial amendment; the affordable housing standard basically asked for a recommendation from APCHA and they would meet the criteria from the 2004 affordable housing as far as design; there are some questions of categories that APCHA did not discuss; the average is category 3. Mitch Haas said at the APCHA told them that categories 1 and 2 for all of those on site housing units and they would sort out which ones were 1 or 2. Mitch said the way the off site was approved was category 3 can be lower if the developer and APCHA negotiate and they were open to having those discussions as well. Bert said staff had concern for the garage access to the upper triplex being forward of Aspen Street. Jennifer answered that there were residential design standards that were in place in 2000 and essentially she was trying to show which ones they do or do not meet. Cliff said that we have dealt with various condos since 2008. Jennifer replied that there was no cap in 2000 on unit size. Cliff said isn't this a new PUD. Jennifer said the cap size is in the multi - family zone district; she said that she didn't want to make this more complicated than it needs to be; the applicant is asking to amend their existing approvals under the 2000 code so they would not have to meet this cap that is currently in place that was adopted in 2006. 0 Special City Planning & Zoning Meeting — Minutes — January 4, 2012 Stan asked if the subdivision request to combine lots 2 and 3 has any significant difference in the development that is allowed when you go from 42,000 to .65,000 square feet. Jennifer said this is a site specific development and it would only be approving the triplexes on that one lot. Jasmine said in the original approvals there lots like parcel 2 that were both LTR and R -15 and the recommendation was to be LTR except the underlying zoning dimensions would be that -of LTR rather than R -15. Jasmine said that LTR allows larger dimensions than R -15, correct. Jennifer replied that R -15 would be totally different and different dimensions. Jasmine said that she was talking about setbacks, FAR, height; all those are bigger. Jennifer said that R -15 has greater setbacks. Mitch said that there is no LTR Zoning in the City anymore and this is vested under LTR rules. Bert said in the applicant packet F in the second sentence it talks about current codes; he asked if that changed anything being under the current code. Jennifer said you should be judging this on the code in effect at the time to keep it as simple as possible. Bert agreed with Jennifer but he was confused on why the dimensional requirements are focused on today's code or current in the second sentence. Mitch said it was. in the book page 7 and the city has adopted real clear on how you define everything, the floor area purposes, how heights are measured. Mitch said they designed this proposal given the current ways of calculating things; for instance back in 2000 none of the garage floor area would count as grade; but today's code a good deal of it does. Mitch said they built it into our numbers which is getting back to Jasmine's question which is about why we didn't lower the floor area limit it was that we weren't sure how the city was going to go about doing calculations. Jim DeFrancia said we are supposed to judge this application by the 2000 code and the 2000 standards because that is what it is going with but if the applicant chooses to agree voluntarily to more rigid standards that came in later they are free to do that. Jennifer said particularly when they are talking about heights or setbacks or square footages you want to go with you current code because that is what is existing today. Break David Parker introduced himself as a partner with Bald Mountain Development and the representative of ASV Aspen Street Owners, LLC. David provided his background and said the site was purchased in 2000 by Centurion and got the townhome project approved and through encouragement with the City through the 7 Special City Planning & Zoning. Meeting — Minutes — January 4, 2012 COWOP process for a hotel but they were turned down. David said the partnership spent the last year looking at the site trying to see what options were and again said let's go along with the townhome site and see if we can make it better. David said that they have lessened some of the impacts on the neighbors. Stephen Holley, architect with Poss Architecture, stated that they would be addressing throughout the presentation the specifics from concerns raised during the staff presentation and the recently P &Z questions with regards to setbacks, the AH units mitigation, density and the pedestrian feel for the plan and changes. Stephen utilized power point to show the overall areal of the portion of town showing Wagner Park, the Gondola, the Little Nell, the Grand Hyatt, St. Regis, Willoughby Park and the far parcels of this project lots 1, 2'and 3. Stephen showed the current 30 SkiCo parking spots. Stephen said that they were always conscious of the neighbors and what they think. Stephen said the encumbrances on site were the 90 year lease for SkiCo parking and a private encumbrance specifically to Mary Barbee's property which runs adjacent to their property and until she sells they cannot build anything above grade. Stephen noted the Juan Street Affordable Housing Units actually sits within the site of current owners of this project. Stephen said the revised proposal honors that open space for Juan Street Affordable Housing. Stephen said the retaining walls are primarily street front. Stephen said by stepping the retained property up the slope they can move up the site and pull it back and allow a better pedestrian experience in'this area. Stephen said the flat part goes up to the mountain and the structures respond to that as either in placement along there or a reorientation of the buildings to address how you meet the mountain in this proposal. Stephen said from Norway looking back over town we see the ski slope coming down and a natural flow of the structures in that area. Stephen showed a rendering of the block and this takes into account the approvals of the Lift One site. There is a 75 feet of rise of this section of South Aspen Street; it is a significant amount of rise to incorporate into a project but it also something to'be cognitive of the street and street safety. Stephen said the approved street section never anticipated there would be a project on the other side of the street that moved into the right -of -way. Stephen pointed out the approved townhome section on power point. Stephen noted that with the approval that is built, South Aspen Street will have no parking, it is a narrowed street so there is no place to pull over and stop to make deliveries or anything like 8 Special City Planning & Zoning Meeting — Minutes — January 4, 2012 that. They proposed to bring an inner driveway into the project'to bring the cars in terms of drop off and deliveries only of the street. Stephen said their proposal was to spread the traffic out in a more evenly distributed way but what it does is lower the traffic impact, to lower the traffic counts for this project; if you take it from winter to summer it is a reduction of traffic at peak hours by 14% and on an average from 15% to 22% reduction of traffic. Stephen said that Jay Hammond did the calculations for this project. Stephen said the livability for the people who are going to live there is good and so the Aspenites access to the Lift One A. Stephen said the current proposal keeps 10 units on site and moves 8 units off -site; it retains the open space and livability is maximized on site. Stephen said on site we have 1 and 2 bedroom units and offsite 3 bedroom units. Mitch said with that the Aspen Area Community Plan it is transit orientated and throughout all the updates and this is infill development in a developed area. Stephen said there was a connection to the park and with the new proposal had more open space. The affordable housing steps down and the units have breaks in between buildings. Stephen said that when you take a look at parcels 2 and 3 we see the individual units and the 3 structures on the slope and if we overlay a profile of the existing what is important to note is the revised design to enable to step down the slope more naturally. Stephen said they would utilize efficient construction and with the new massing there is more daylight. David Parker said they want you to know that they are more respectful of the neighborhood and there are no increases in height, floor areas and they are not requesting any reduction in setbacks; they are not requesting any reduction in AHU but the removal of some off site. David said they are requesting an extension of our vested rights. Cliff said that he was looking at the site plan and was trying to understand that there were 2 driveways and one curve that goes in front of the lower, middle and upper triplexes. Cliff said there was a separate piece of pavement that accesses a garage completely separate off Aspen Street and off of Juan Street there is additional pavement and assumes it goes into garages for the lower and middle triplexes. Cliff said there was parking for a condo. David replied it was in the right -of -way and they will be losing that parking and it is a non - conforming building with no parking; we are talking with.them. Cliff said that you are moving the SkiCo further away from base operations. Mitch said the city reserved emergency access for this site. E Special City Planning & Zoning Meeting — Minutes — January 4, 2012 Stan asked the reason for the garage access and why it couldn't be integrated into the curb cut for one way. Stephen replied that primary reason was a huge difference in height; they lessened the curbs cuts from 3 to 2 but it widened the one curb cut. Bert said Exhibit G of the applicant designs, there is green space and he asked why is that green space there at Juan Street Apartments. Stephen replied that is to the encumbrance from Mary Barbee the absolute no, above grade building. Mitch said there was green space next to the Juan Street Apartments. Bert said Exhibit F in, the binder page 14. talks about parking reduced on Juan Street. Mitch replied that the SkiCo parking moved into the garage. Keith Goode said there was employee housing at the ABC but the free market housing that you are building is all three bedrooms on site. Keith asked if there were any other options looked at in town rather than the ABC. Mitch said that they looked at a number. Jasmine asked the square footage for the 10 free - market; what was originally proposed and what is proposed now. Mitch replied they were originally 14 and there were 10. David said they were all under 5,000 square feet. Jasmine said that you are saying there is no increase in the above grade free - market square footage. The applicant answered that is correct. Mitch said another significant difference was that all of the affordable housing is lottery for sale units. LJ asked how big were the retaining walls; he noticed some at 4 feet, 8 feet and 14 feet. Stephen stated that they ranged from about 14 feet and go down as low as a foot and there is no difference from the original; maybe one at 16 feet, it is the position of those retaining walls to lessen the impact. LJ asked if staff objected to. the retaining walls. Jennifer replied they were overall site issues and we hoping some of the retaining walls could be reduced. Mitch said the original plan was hard to read. LJ said that they said they had to take the soils to Denver and the EPA says you can take it to the dump here. Mitch said it was a little too toxic for that. LJ asked if there were any public that would like to make a comment on this application. Public Comments: 1. David Ellis owner at the Timberridge Condominiums, said as David Parker indicated they have had input and if the project is built as originally 10 Special City Planning & Zoning Meeting — Minutes — January 4, 2012 approved the parking in public /private area on Dean Street will disappear. David Ellis said the other one is circulation and traffic. David Ellis said prior to Juan Street and Trainor Landing project being improved there was no parking being approved anywhere on Garmich but there was head in parking the entire length of Koch Park and City Council in their discretion decided to change all that. The fact remains that after those projects were built and some of the slides showed there is parking on Juan Street and Garmich. David said you were talking about the loss of 18 spaces. Cliff said in 2003 there was talk about Timberridge parking in this new project. David Parker answered he didn't see how that was really possible in the original hearing. Jennifer entered into the record the minutes that we have talked about will be Exhibit H (P &Z December 5, 2000, January 16, 200 1) and City Council (February 12, 2001, March 26, 2001 and April 9, 2001); final minutes of P &Z (June 3, 2003) and Council (July 28, 2003). The applicant's presentation will be Exhibit I. David Parker said they were not changing David Ellis' situation; we have a proposed plan that and will work with him to see if there is any other solution. LJ noted that it was 7 o'clock. and wanted to know if anyone wanted to extend the meeting. MOTION: Jim DeFrancia moved to continue South Aspen Street to January 17, 2012 seconded by Jasmine Tygre. All in favor APPROVED. MOTION: Cliff Weiss moved to extend the meetingfor IS minutes seconded by Stan Gibbs. All in favor, APPROVED. Jasmine Tygre and Jim DeFrancia excused themselves at 7:OOpm. Other Business: Miscellaneous Code Amendments LJ Erspamer opened the Miscellaneous Code Amendments. Jessica Garrow said this is not a public hearing and the public hearing is next week on January 10th and she wanted to give a brief presentation on the "gap" code amendments related to the AACP. Jessica said there were 16 review criteria in the land use code by consistency with the Aspen Area Community Plan or Aspen Area Comprehensive Plan. Jessica said because the new AACP is going to be a guiding document the 11 Special City Planning & Zoning Meeting — Minutes — January 4, 2012 new land use will eliminate the references to the AACP otherwise we continue using the 2000 AACP to not reflect the community sentiment in the same way that the more updated Plan does. Jessica said the proposed changes are fairly minor in nature and it is to make sure P &Z and City Council retain their existing review authority related to mass and scale and neighborhood compatibility. Those are the 3 things that the AACP is most typically used for right now so we are suggesting eliminating some references to the AACP and changing areas like PUD, SPA and Subdivision where we have used the AACP to have those sections to just address mass and scale and neighborhood compatibility. There is an additional proposed code change in Exhibit B in the packet that calls for new neighborhood outreach requirement for applications that are significant. Staff wanted to a have a more detailed discussion with P &Z about terms if should this be a requirement, should it just be a suggestion but the 2000 AACP talks about importance of communicating with neighbors and neighborhood comment on a project and Council has used that in the past. Stan Gibbs asked about language on page 14 in #B there is a proposed amendment for a recognized community goal; he was concerned that recognized was just another difficult word to understand; there needs to be a better definition than just recognized. Jessica replied adopted. Stan said that is the other one because adopted; what are you talking about are. you really thinking when I read that it was Oh just the AACP just a different code. Jessica answered that it is something that we talked about at staff and some input from private planers and architects that use the AACP and we are going to have another meeting with them tomorrow to try and get some feedback on these in general. Jessica said that any code amendment should reflect community will and community sentiment so it could be AACP, it . could be Council top 10 goals, or something else that is a recognized community goal. Jessica stated that if you have a different verb for that she would like to hear it stated, we want to make sure that this is clear. Stan said under Planned Unit Development on page 26; he thought this the kind of thing that we need to have and actually say we are replacing the reference with actual code language that defines what the criteria are. Stan said we need to think of a way to better do those things. Jessica said that they will come back with some suggestions; one thing to keep in mind is that a code amendment is fundamentally different than a development.- Cliff Weiss asked the timing reconciliation of this which is staff's wish list towards code amendment. Jessica responded that this is intended to cover the gap issues 12 Special City Planning & Zoning Meeting — Minutes — January 4, 2012 because the AACP is going to be adopted as a guiding document unless Council passes an Ordinance that says the 2000 AACP is no longer in effect and we are eliminating the references to the AACP in our land use code; what will happen is when we are coming forward and presenting an application to you we will have to pull out the 2000 AACP and see if the project is consistent with it. Jessica said the gap issues was trying to eliminate some of the subjectivity in the code, make sure P &Z and Council retain the authority that you have in the AACP to remain with the compatibility with mass and scale without having to just reference the AACP. Cliff said let's be specific and look at 8040 Greenline Review on page 3 of 6 and says any development with 150 feet of 8.040 elevation lines before I go through a height with P &Z; he loved that but was confused because won't we be considering a number; aren't we doing work twice. Stan said we should look at page which actually looks at 8040 and it is quite clear, number 11. Jessica said on 8040 there is always a recommendation from Parks, Recreation and Trails and Parks uses their adopted recommendations and what happens is that staff couches it in terms of AACP; the actual rules and regulations that we are getting out of this-one are. not in the AACP; they are in other adopted standards. Bert Myrin said the goal of this is to provide something for elected officials to rely on when they can't enter the AACP. Bert asked staff to find the projects that were difficult and see if the language is in this proposed:-. Bert said were there things that met the code but the staff or P &Z or Council say "yeah but..." and those need to be addressed; there are only a couple of big ones per year. Stan said that you would have found those cases where you would have found out the issues. Jessica said having language caused by the code is a stronger position to be in than referring to a separate guiding aspirational document. Jessica said they are trying to get to the more specific language. Bert said he was worried in the interim time that a developer said that actually wanted to do it; instead of just backing away we would have this gap. Jessica said the way that we understand the way the staff has used the gap issues as mass, scale and neighborhood compatibility and that needs to be incorporated in to the land use code. Jim True said he understands what Bert is saying and it may not be too easy to apply but ,2 examples; Cooper Street came up in subdivision to comply with the AACP; a ecouncil member said it doesn't comply for x, y and z and you are looking for x, y and z to be in this code amendment. Jessica said the differences that there have been situations that staff has said meets this proportion of the AACP and then in a public hearing Council or P &Z has said no it doesn't. 13 Special City Planning —& Zoning Meeting - Minutes — January 4, 2012 MOTION: Bert Myrin moved to continue the "gap issues " Code Amendment to Tuesday, January 10h seconded by LJErspamer. All in favor, APPROVED. MOTION: Bert Myrin moved to adjourn at 7: 35pm seconded by Stan Gibbs. All in favor, APPROVED. Adjourned at 7:35 pm. J ckie Lothian, Deputy City Clerk 14 Special City Planning & Zoning Meeting — Minutes January 24 2012 LJ Erspamer opened the special meeting of the Planning and Zoning Commission in Sister Cities Meeting Room at 4:30. Commissioners present were Cliff Weiss, Stan Gibbs, Bert Myrin, Jasmine Tygre, Keith Goode and LJ Erspamer. Jim DeFrancia was excused. Staff in attendance were Jim True, Special Counsel; Jenifer Phelan, Deputy Director City Community Development; and Jackie Lothian, Deputy City Clerk. Comments Cliff Weiss and Jasmine Tygre thanked the applicants for being flexible and changing meeting dates. Declaration of Conflicts of Interest None stated. Minutes MOTION: Bert Myrin moved to approve the minutes from January 4 and January 10, 2012 seconded by Stan Gibbs. All in favor, APPROVED. Continued Public Hearing: South Aspen Street PUD LJ Erspamer opened the continued public hearing on South Aspen Street PUD. Jennifer Phelan said this was a continued public hearing so we have public notice. Jennifer said the local representatives for the developer were David Parker, Mitch Haas, and Stephen Holley. The applicant is requesting to amend the existing approvals that were granted in 2003; the PUD approved 14 onsite free - market units and 17 on site affordable housing units for a total of 31 units. The current request is to reduce on site housing to 24 units instead of 31 units; this proposal will have 14 free market units and 10 affordable Housing units on site and in addition there will be 8 off site units in the ABC with a cash -in -lieu payment proposed. Another as component of this project is that SkiCo has a requirement for 30 parking spaces part of this agreement and those are located on parcel 1. The. property is zoned .Lodge with a PUD overlay and the project was granted entitlements under the 2000 code. Staff is concerned with the removal of density from the site to the ABC as it does encourage infill development; the additional curb cuts and delivery access do not follow the traditional grid and increase the pedestrian/car conflicts. Staff also noted that the triplexes follow a more suburban development pattern, which does not follow the traditional grid and does not prevail or.related to the urban context 2 Special Ci Plannin & Zoning Meeting! — Minutes January 24 2012 of the town. Jennifer said the onsite affordable housing units are sized to category 1 and 2 units although the applicant said they would be category 3 average. Jennifer said there were approvals in place and the applicant would like to amend the site plan and staff supports amending the site plan and staff feels the applicant should add more density to the site, affordable housing. And amend the site plan so that it relates better with the traditional urban community; staff supports the idea of changing the architecture, manipulating and moving things around but at this point staff would like to see additional density on site and changes to the site plan. Bert Myrin said part of the employee housing was being provided voluntarily in the original plan. Jennifer replied that was provided in the packet. Bert said on today's memo page 1 was to reduce the affordable Housing units from 17 to 10 on site. Bert said that was the focus of this new site plan and extending the vested rights. Jennifer answered that would be approved by City Council. Cliff Weiss said it wasn't clear to him why if it is a new PUD they, are able to use 2000 Land Use Code. Jennifer said the project is vested under the rules and regulations of 2000 and because it is still vested to 2013; the applicant has the right to amend the approvals granted under the rules that they were granted.. Jasmine Tygre said when the original project was approved it was submitted under the 2000 plan but they did not get any of the additional allowance that a Lodge would have. Jennifer said when she went through the project minutes from the last time it did seem like project met the underlying zoning. Mitch Haas stated that it was under the lodge tourist residential zoning. LJ Erspamer said the traditional urban grid was not met by the townhomes up on South Mill Street and on the West side so why do you require them to meet the urban grid when it is a block away. Jennifer replied with new development as we develop over time there is a pattern of the way development happened in this town; the relationship to the grid is important to keep. LJ said these townhomes were built under the 2000 Code a block away. Jennifer said the Top of Mill face the street and they are pretty consistent. David Parker, a partner with Bald Mountain, which is the local representative for this partnership and would like to go over highlights from our last presentation which was on January 0 and remind everybody what we were not asking for as .part of this amendment; we would like to do a quick response to some of the commissioners questions and address the staff concerns. 3 & Zonin¢ Meetin — Minutes Janua 24 20 Stephen Holley, Poss Architecture and Planning, said that we are picking up where we left off; we not asking for an increase in height, no increase in floor area, no reduction in setbacks, and no reduction in AHU mitigation. Stephen said the height and floor area are with nW�oemes that has alowed them to floor area has not changed for the free market to break up the mass and adds more views through the project and a better relationship to the mountain. Stephen utilized power point to show that they have reduced the mass and, the height throughout the project with a height limit of 28 feet. Stephen said the setbacks were of concern and it was a 5 foot setback and they are increasing the setbacks. They pulled back the setbacks because it incorporates the history of the town and how the town evolved; the mountain base becomes less urban in character. Stephen said that life safety with the lay back against ta d into slope heir pro the one way drive allows fire trucks off of South Aspen Street Ed Van vetted this plan for Fire Truck access. through Stephen said the retaining was on a sloped site and there will be the street and the buildings or actual walls. The approved had retainage all around proposed pulls that away finding a better pedestrian experience. Stephen said they were providing 3 times the required housing; they are exceeding 35% of affordable housing on site and have updated this o and for sale PCH housing Guidelines. Stephen said there is a difference between the approval in 2003 was for rental housing and now APCHA wants for sale units. These units are for long term not transient occupancy; they want to provide high livability. Jasmine asked where the square footage went that was going to be used nor the ed. onsite employee housing. Stephen replied that square footage is no g Jasmine said but the FAR is the same. Stephen replied that is where there is a minimum distance, this is a cap, they just not have asked for the cap to be changed; they could calculate a smaller amount. Mitch said that that warad g s under today's e would calculate g PUD plans as approved and we said that we code so that counts as more floor area but the actual floor area of the free market units did not increase. Stan said the primary cost of that was that was why the affordable aand de s t housing had to go off site in order to have the open space, curving drivew y Y El Special City Planning & Zoning Meeting Minutes January 24, 2012 Cliff said you are going from 17 affordable housing units onsite to 10; what is the community gaining from this. Mitch replied the existing neighbors are getting a better plan for their neighborhood; less density, less impacts and putting back a total of 18 units instead of 17. David said there was a better Juan Street experience because instead of having a drop -off on the downhill side and a retaining wall on the other side it is now at grade. Stephen said it was an enhancement for all. LJ asked what APCHA said about this. Stephen replied unanimous approval. Bert asked if the growth rates changed. Mitch said there was more below grade. Cliff asked when the 1 parking space per affordable unit code went into effect. Jennifer replied it was part of the infill and was in the code in 2005. Mitch said they had 12 spaces for affordable housing on site. LJ opened the hearing to public comments. Public Comments: 1. Mack Bowlens representing the Lift One Condominiums said they appreciate efforts with the second plan giving them more site lines and sunshine as possible. 2. Derek Custer was on the board of the Timberridge Condominiums said he agreed with the extra pushback and sunlight being one and the entrance to the parking lot below was a concern and will increase traffic. 3. Bob Daniel represents the Lift One Lodge said you go back to the plans for this project. Bob said one of the big issues was the Juan Street Affordable Housing and proximity to them and this site plan is responsive to them. Bob said in terms of the history of this neighborhood that has been talked about is the grid. They were supportive of this site plan from a grading perspective, from a life health perspective, he agreed with this project. Bob encouraged the commission to approve this plan and it. is better for the neighborhood. LJ closed the public comments section of the public hearing. LJ said remember we are reviewing this as a multi - family replacement, growth management review, subdivision, Planned Unit Development; these are the 4 things that we are looking at. Bert Myrin stated his biggest concern was the affordable housing moving off site; the 17 units in the original proposal were categories 1, 2, and 3 as rental units. The 5 ;no — other thing is that this zone is zoned for a fairly dense development at the base of the mountain and it is not an area that we are looking for the open space that has been presented in this. Bert thought that it was an o look at the employee housing at with the affordable housing. Bert said he wen the ABC and there were no sidewalks, no way to get across highway 82 safely, it is a business center and the last business center in town was Obermeyer which we turned into a free market and employee housing; we can't continue to displace mitigation to our business zone. Bert said the retaining walls was a serious concern to raise to those levels of retaining walls and shared the concern with staff on it and might pass this onto Council that those concerns Jennifer said there was some retainage that was very hard to rea d on the document they have to really understand the retainage and be part of the natural. o gr a topography as possible. Jasmine Tygre said that she agreed with Bert about the employee housing but wanted to discuss one of the things the applicant is trying to do is to reduce the density on this site. Jasmine said that was the opposite of what we want in our zoning the underlying zoning says Lodge is high density, infill type of density. Jasmine said reducing density on this site is not a plus and she understands that neighbors like to have something further away but if you are going to redesign your site plan you can probably redesign your site plan with some additional setbacks without going to the suburban plan,that you have. Because it is not just right for this particular location and townhomes are more likely to be rented rather that triplexes; triplexes are not appropriate in this neighborhood and the squiggly streets are offense to her. Jasmine said that you are surrounded by other buildings except for the toe of the slope in an urban setting and you could do "something responsive to the other buildings that are in your neighborhood than the plan that you have now, it doesn't belong to anything in there. oKeith Goode said that his first concern was for the employee housing and P &Z has asked people to talk to their neighbors and in this case you seem to have the support. Keith said that he liked the plan. Cliff Weiss said that he gave Bob Daniel such a hard time; from the 2 `/z years that he has been dealing with this area and was always concerned it would be a private anyth lo enclave. Cliff said what we are going to get is nou le o better how do I make this palatable to him. Cliff said that he wld like se a design for the units on site and he would like to see more of them; the community al; otherwise build a hotel please. got a good de . b Special City Planning& Zoning Meeting= Minutes January 24.2012 Stan Gibbs said what bothers him the most was that the code's problem; 18 units used to be the Mine Dumps and we are getting replacement units in this case; they don't have to replace all of those units and he thinks that is something we want to looks at a staff perspective on. Stan said that the applicant giving so many affordable units is a plus and they have to be given credit for that. Stan said what they have done for the Juan Street neighbors is important and a community benefit. Stan said you can see the first 3 buildings and the north end is rectilinear and the open space towards Aspen Street and people in Willoughby Park are going to have a better view of the mountain. Stan said he didn't like where the garage entry was but understands that it can't be anywhere else. Stan said extensions of vested rights should include acceptance by any applicant and they should be willing to accept the code as it stands. Stan said that he thought that he could support the project and he agreed with Cliff on it should be a hotel; that is what really belongs here. LJ asked Jennifer if there were any written comments by the public. Jennifer replied no. Li stated that he would like to have that traffic study done before Council, approves it. Jennifer said there were things that had to be submitted prior to Council. LJ said it wasn't the best but it was acceptable ,to have some of the employee housing at the ABC. MOTION.- Bert Myrin made a motion to approve Resolution 2, 2012 recommending City Council approve a new development and other amendments associated with South Aspen Street Subdivision PUD and the amendment to prior to Council Review the applicant will look,-into staff's concerns about the retaining walls; Keith Goode seconded. Roll call vote Cliff Weiss, yes; Keith Goode, yes; Jasmine Tygre, no; Bert Myrin, no; LJErspamer, yes; Stan Gibbs, yes. APPROVED 4 -2. Discussion prior to the vote: Cliff said this comment was for Steve that he would like this project to blend into the high priced units around this project. Cliff said the roofline bothers him. Bert proposed amending prior to Council's review the applicant will address staff's serious concerns with the extent and number of retaining walls. Stan asked how are the applicant's going to address, or are you asking Council to be the focus on this issue. Cliff asked Bert's intent; would the right design reduce the walls. Jennifer said that they could get some better profiles of the retaining areas so it would be a lot clearer to where they are and how high they were. Bert reworded the amendment to prior to Council Review the applicant will look into staffs concerns about the retaining walls. Stephen said the language was better than address. 7 C Special City Planning & Zoning Meeting — Minutes Janua 24 2012 Bert Myrin proposed the number and type of employee housing on site as an amendment. Motion dies for lack of second. Cliff said he still wants a hotel. Jasmine said that she wanted to make it clear that her rejection was based upon the amended project does not conform to the underlying lodge zoning in terms of reduction of density that s contrary to public policy and the amended plan does not adhere to the criteria for PUD; those criteria being specifically b and d. MOTION: Bert Myrin moved to adjourn at 6pm seconded by Stan Gibbs. Adjourned at 6:00 pm. ?ckie Lothia , Deputy City Clerk V/rc I MEMORANDUM TO: Mayor Ireland and Aspen City Council THRU: Chris Bendon, Community Development Directo OA FROM: Jennifer Phelan, Deputy Planning Director R RE: 120 N. Mill St., Pitkin County Library - SPA Amendment, First Reading of Ordinance No.19(Series of 2012) MEETING DATE: May 29, 2012 AIPPLICANT: SUMMARY: Pitkin County Library Board, The Applicant requests an amendment to the Pitkin Kathy Chandler, Director, in Library SPA and a Growth Management Review for ,onj unction with the Pitkin Public Facilities to expand the size of the current library. -ounty Commissioners STAFF RECOMMENDATION: OWNERS: Staff recommends approval, with conditions, of the SPA Pitkin County and City of endment and growth management review. ,PRESENTATIVE: Ozanne Jackson, Design orkshop LOCATION: 120 N. Mill St. and Galena Plaza, Lots 2 & 3, Rio Grande Subdivision oft URRENT ZONING & USE 3ublic (PUB) with an 4- specially Planned Area SPA) overlay ,SED LAND USE: library, Essential Facility Facing Facade i Page 1 of 7 LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approvals of City Council: • Specially Planned Area (SPA) Amendment for a new addition to the library pursuant to Land Use Code Section 26.440.050 (City Council is the final review authority following a recommendation from the Planning & Zoning Commission). • 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). The Planning and Zoning Commission (P &Z) reviewed the application on April 3, 2012. The minutes from these meetings are attached as Exhibit D. The Applicant received the following recommendations of approval from the Commission: Specially Planned Area (SPA) Amendment and Growth Management Review for an Essential Public Facility pursuant to Resolution 8, Series 2012 (Exhibit E). The City Council will be wearing two hats in this review: one as a review body for the land use approvals and one as a property owner that the expansion is proposed upon. Subsequent sections of the staff memo are divided by land use or owner issues. PROJECT BACKGROUND: The Applicant has requested approval of a SPA Amendment and a Growth Management Review for an Essential Public Facility in order to construct an addition onto the east facade of the library. The existing library was originally approved in 1989 via a final SPA application. Following is a brief history associated with the development of the library. • In 1973 the city used 7th penny transportation funds to purchase a majority of the Rio Grande property, inclusive of the area now occupied by a portion of the youth center, Galena Plaza and parking garage, and the parking lots in front of ACRA. • The current library site was called the "Oden" parcel which was purchased by the city (in addition to some other acreage) in 1982 with 6th penny funds. At that time, Sixth Penny funds were not restricted solely to parks and open space purposes. • In 1988 a conceptual SPA master plan was adopted by City Council identifying a parking garage, the library, the Spring Street extension, a new snow melt facility and an arts usage area for the Rio Grande area. • In 1989 a final SPA plan was approved by City Council for the parking garage and the Pitkin County Library. • The library was constructed in 1.991. • In 1995, the Board of County Commissioners and the City of Aspen exchanged certain properties in the Rio Grande Subdivision. Lot 2 (Galena Plaza) was conveyed to the city Page 2 of 7 by the county; however, the county reserved "a 44 foot easement for possible library expansion over the current Rio Grande Parking Garage." (Pitkin County Ordinance No. 15, Series of 1995). PROJECT SUMMARY: The applicant is requesting to expand the existing library to the east with a two story addition that is a total of 7,198 square feet. The addition is approximately 29 feet tall when measured from Galena Plaza. The addition is proposed to contain 5,899 square feet on the main level and a mezzanine level that is 1,299 square feet. The existing library contains 31,703 square feet on three levels sits on Lot 3 of the Rio Grande Subdivision. The addition is proposed to be built on Lot 2 (Galena Plaza/parking garage) within an easement reserved by the county for the future expansion of the library. As proposed, the conditioned space of the expansion will sit upon the 44 foot wide easement and a canopy or porch element is proposed to project outside the existing easement. The applicant is also coordinating with the City of Aspen, as plans are being drawn up to redevelop Galena Plaza. The library board has conducted a needs assessment by a library consultant. The consultant identified a number of areas that could improve the overall function of the library inclusive of: expanding the children's room, improving access to the music and media room, expanding the young adult area, providing small group meeting spaces, reconfiguring staff desks and workspaces for better efficiency, providing modern amenities such as quiet reading areas, exhibition space, study rooms, as well as outdoor reading areas, and improving accessibility to the library collection. Page 3 of 7 Based on the assessment the library has vetted a number of redevelopment options and conducted a number of open houses to gather public feedback. The proposed design, as shown in the following figures, was selected. The library anticipates funding of the project to be partly through an existing construction fund and an increase in the library's mill levy. The library expects to request the mill levy increase in the November 2012 election. Figure 2: View from Galena Plaza Figure 3: Proposed Lower Level Floor Plan ■ i i 1 . AN Masson ■a ■t �� ; • • 4� " mass Man V a ■ ■■a aaaaaa ... sauna �� • as +� as sound ■ = =oaf ama•a=asaaaa■ ==MuMCCXJaaa�O JPJRft -""24F- i Page 4 of 7 Figure 4: Proposed Main Level 1, loor Flan NV Y/Fo.1 Los FIM -- fl I I I Mco L — — SF 111: r- -- 71,88E I III FICi 4655 , I i 1 I - S P -. ur.n r CHILDREN'S 3606 SF SP s.. i Yfl Yff _ Ct idi o %F "no 1 11 Figure 3: Proposed Mezzanine Level ,!I - I 11 i 'uiu r■■■■ ■r■ tj�' 1 ■ � r �MI � r • . r . ■ Page 5 of 7 STAFF COMMENTS' SPECIALLY PLANNED AREA The Applicant is requesting an amendment to the Pitkin County Library SPA to construct an addition onto the east fagade of the existing library. The County anticipated a future expansion of the library by reserving an easement for future expansion onto Galena Plaza when the city and county exchanged properties. The addition will sit upon the roof structure of the parking garage. Staff Comments: The Applicant is proposing a two story addition on the east side of the library. The scale and mass of the addition relates to the existing library. The contemporary addition provides lightness to the building by providing abundant glazing. The glazing brings the outdoors into the library connecting patrons to the natural views around them. The entrance is more inviting than the existing entrance facing the plaza. The addition has the potential to help activate the adjoining plaza by creating a space (inclusive of the porch element) where people may dwell. The expansion of the library meets the findings and recommendations of the Civic Master Plan (2006). The document noted that an expansion of the library was appropriate and that it should include a meeting room. It also noted that coordination with the city, to the extent possible, with regard to other improvements around Galena Plaza should occur. Currently the county and city are meeting to coordinate this project as it will be built upon the parking garage as well as other improvements for the plaza that are being proposed. Community Development staff finds the request meets the SPA review criteria and recommends approval of the land use request. GROWTH MANAGEMENT REVIEW - ESSENTIAL PUBLIC FACILITY City Council is the final review authority for the review of the library as an Essential Public Facility. The Planning & Zoning Commission determines the number of employees generated pursuant to section 26.470.100.1. Based on the employee generation determination by the Commission and pursuant to Section 26.470.090.4, Growth Management Review: Essential Public Facilities (EPF) of the City of Aspen Land Use Code, 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 applicant states that the remodel and expansion of the library will not generate employees as it will improve the functionality of the library; however, the housing board recommended that the Commission find that 2.87 employees are generated by the addition or, if no employees are determined to be generated, an employee audit is required in the future. At the April P hearing the Planning and Zoning Commission found that "in consideration of the Applicant's representation that there will be no new employees generated," the Commission recommended that an employee audit be conducted one and three years after a Certificate -of Occupancy issued, for the library. Staff Comments: Staff finds the request meets the Essential Public Facility Growth Management review criteria and recommends approval of the request, with conditions. Specifically, Staff recommends that the City Council determine that no new employees will be generated based upon the library's representations and require an employee generation audit Page 6 of 7 one and three years after issuance of a Certificate of Occupancy is granted for the expansion as recommended by the Planning and Zoning Commission. CITY /COUNTY COOPERATION /COORDINATION: As mentioned previously, staff believes the proposal meets the land use reviews necessary to' entitle the project; however, the City Council acting as owner of Lot 2 upon which the addition is proposed, may have development concerns that need to be addressed outside of the land use reviews. City and County staff are currently meeting on•a regular basis and are developing detailed easement language that will reflect the new footprint of the addition. This draft will be provided at second reading. Construction and maintenance /operation agreements between both parties will also need to be developed; however, these agreements should not be written until the outcome of the November election is known. The second reading will contain an outline of what needs to be addressed in any future agreements. REFERRAL AGENCY COMMENTS: Staff from Housing, Parks; Engineering, Fire, Building, Water & Utilities, Sanitation, and Environmental Health reviewed this project. All the comments are attached in Exhibit C. STAFF RECOMMENDATION: Community Development staff finds the request meets the SPA review and growth management criteria and recommends approval of the request upon first reading. Second reading and the public hearing is scheduled for June 11, 2012 RECOMMENDED MOTION: "I move to approve the request for an Amendment to the Pitkin County Library SPA and an Essential Public Facility Growth Management Review to allow the library to construct an approximate 7,200 sq. ft., two story addition upon first reading." CITY MANAGER COMMENTS: ATTACHMENTS: EXHIBIT A —.SPA Review Criteria EXHIBIT B — Essential Public Facility Review Criteria EXHIBIT C — DRC Comments EXHIBIT D — P &Z minutes dated 4/3/12 EXHIBIT E — P &Z resolution No. 8 (series of 2012) EXHIBIT F — Summary of Public Input EXHIBIT G — Application Page 7 of 7 ORDINANCE NO. (SERIES OF 2012) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING A SPECIALLY PLANNED AREA (SPA) AMENDMENT AND AN . ESSENTIAL PUBLIC FACILITY GROWTH MANAGEMENT REVIEW FOR THE PITKIN COUNTY LIBRARY TO CONSTRUCT A TWO STORY ADDITION TO THE EXISTING FACILITY, 120 N. MILL STREET, CITY OF ASPEN, COLORADO, LEGALLY DESCRIBED AS LOTS 2 AND 3 OF THE RIO GRANDE SUBDIVISION. Parcel IDs 273707306852 and 273707306853 WHEREAS, the Community Development Department received an application from the Pitkin County Library, represented by Design Workshop, requesting approval of a Specially Planned Area (SPA) amendment, and an Essential Public Facility Growth Management Review, to construct a two story addition onto the east fagade of the Pitkin County Library; and, WHEREAS, the Applicant requests a recommendation by the Planning and Zoning Commission to the City Council for a Specially Planned Area (SPA) Amendment, and Essential Public Facility Growth Management Review; and, WHEREAS; the property is located in the Rio Grande Subdivision and is zoned Public (PUB) with an SPA Overlay; and, WHEREAS, the addition is proposed upon part of Lot 2 of the subdivision and commonly known as Galena Plaza; and, WHEREAS, upon initial review of the application and the applicable code standards, the Community Development Department recommended approval of a Specially Planned Area (SPA); and, WHEREAS, during a duly noticed public hearing on April 3, 2012, the Planning and Zoning Commission approved Resolution No. 8, Series of 2012, by a six to zero (6 — 0) vote, recommending City Council approve an amendment to the Rio Grande SPA and an Essential Pubic Facilities Growth Management Review for the library expansion; and, WHEREAS, the 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 Community Development Director, the applicable referral agencies, and has taken and considered public comment; 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, Page 1'd6 with conditions, is consistent with the goals and elements of the Aspen Area Community Plan and the Civic Master Plan; and, WHEREAS, the City Council finds that this ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1: General Development Approvals Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the City Council hereby approves of a Specially Planned Area (SPA) amendment to the Pitkin County Library SPA, and an Essential Public Facility Growth Management Review. The proposed addition shall comply with the plan shown at the June 11, 2012 City Council meeting and consists of a two story addition that sits upon Lot 2, of the Rio Grande Subdivision and contains approximately 5,899 square feet. The approved dimensional standards of the project shall be recorded on the plat. Section 2: Plat and Agreements The Applicant shall record a SPA plat and agreement that meets the requirements of Land Use Code Chapter 26.440, Specially Planned Area, and Section 26.440.070, SPA agreement and recordation. City Council expressly permits the plat and agreements to be recorded within 180 days of the November 6, 2012 election. Inclusive of the agreements to be recorded are 1) an updated easement on Lot 2 to accommodate the expanded footprint of the library addition, an improvements /construction agreement, and an operational agreement. Section 3: Building Permit Application The Applicant, the Applicant's General Contractor, the Architect that produced the construction drawings, and representatives from the Building Department, Community Development Department and any other person deemed necessary by the City shall attend a meeting prior to the submission of any type of Building Permit for the Subject Property. The purpose of the meeting shall be to ensure clarity relative to the submission requirements, the requirements of this Ordinance, timeframes for processing Building Permits, and any other issues raised by any party. The building permit application shall include the following: a. A copy of the final Ordinance. b. The conditions of approval printed on the cover page of the building permit set. c. A completed tap permit for service with the Aspen Consolidated Sanitation District. Page 2 of 6 d. A drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which meets adopted city standards. e. An excavation stabilization plan, construction management plan (CMP), and drainage and soils reports pursuant to the Building Department's requirements. f. A fugitive dust control plan to be reviewed and approved by the Environmental Health Department. g. A detailed excavation plan for review and approval by the City Engineer. h. Accessibility and ADA requirements shall.be addressed to satisfactorily meet adopted building codes. Section 4: Affordable Housing. In consideration of the Applicant's representation that there will be no new employees generated, the City Council shall require an employee audit be conducted one and three years after. a Certificate of Occupancy is issued. If employees are found to be generated, any employee mitigation shall be subject to the rules and regulations in effect at the time of the audit. Section 5: Engineering The Applicant's design shall be compliant with all sections of the City ' of Aspen Municipal Code, Title 21 and all construction and excavation standards published by the Engineering Department. The Applicant design shall also be compliant with the Urban Runoff Management Plan. Section 6: Fire Mitigation All codes adopted by the Aspen Fire Protection District shall be met per building permit. This includes but is not limited to .access (International Fire Code (IFC), 2003 Edition, Section 503), approved fire sprinkler and fire alarm systems (IFC, as amended, Section 903 and 907). Confirmation is required that the water supply is adequate to meet the increased demand necessitated by the- expansion. Emergency vehicle access shall be maintained. Section -7: Utilities The Applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Utility placement and design shall meet adopted City of Aspen standards. Section 8: Sanitation District Requirements Service is contingent upon compliance with the District's rules, regulations, and specifications, at the time. of construction, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. Page 3 of 6 On -site utility plans require approval by ACSD. Elevator shafts drains must flow thru an oil and sand interceptor. Plans for interceptors, separators and containment facilities require submittal by the applicant and approval prior to building permit. Below grade development may require installation of a pumping system. One tap is allowed for each building. Permanent improvements, are prohibited in sewer easements or right of ways. Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public ROW or easements to be dedicated to the district. All ACSD fees must be paid prior to the issuance of a building permit Where additional development would produce flows that would overwhelm the planned capacity of the existing collection system and or treatment facility, the development will be assessed fees to cover the costs of replacing the entire portion of the system that would be overwhelmed. The District would fund the costs of constructing reserve capacity in the area of concern (only for the material cost difference for larger line). Any glycol heating and snow melt system must be designed to prohibit and discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. Soil Nails are not allowed in the public ROW above ASCD main sewer lines and within 3 feet vertically below an ACSD main sewer line. Section 9: Environmental Health The state of Colorado mandates specific mitigation requirements with regards to asbestos. Additionally, code requirements to be aware of when filing a building permit include: a prohibition on engine idling, regulation of fireplaces, fugitive dust requirements and noise abatement. Wildlife protection/enclosures for the trash and recycle area is required. The kitchen space intended to support the meeting space is not required to be licensed; however, it is recommended that commercial grade equipment be installed instead of domestic equipment for durability and functionality (to support catered events). Section 10: Exterior Lighting All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor lighting. Section 11: Parks Landscaping in the public right of way will be subject to landscaping in the ROW requirements, Chapter. 21.20. There shall be no plantings within the City ROW which are not approved by the City Parks Department and the Engineering Department. Page 4 of 6 Per City Code 13.20 an approved tree permit will be required before any tree is removed or impacted under the drip line of the tree. Parks is requiring that the tree permit be approved prior to approval, of building permits. Mitigation for removals will be paid cash in lieu or on site per City Code 13.20. Parks will approve a final landscape plan during the review of the tree removal permit based on the landscape estimates Section 12: Impact Fees and School Lands Dedication Fee -in -Lieu The Applicant is not required to pay impact fees or the school lands dedication fee -in -lieu as no commercial net lease area or residential dwellings units being developed. Section 13: Vested Rights The development approvals granted pursuant to this ordinance shall be vested for a period of three (3) years from the date of issuance of the development order. No later than fourteen (14) days following the final approval of all requisite reviews necessary to obtain a development order as set forth in this ordinance, the City Clerk shall cause to be published in a newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to this Title. Such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a vested property right, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: Lots 2 and 3, Rio Grande Subdivision and commonly known as 120 N. Mill Street, City of Aspen, CO, by Ordinance No. -- Series of 2012, of the Aspen City Council. Section 14: Exhibits. The exhibits listed below are ' appended hereto and are, by references made to them, incorporated into this Ordinance as if fully set forth herein: • Exhibit A - Schematic elevations and floor plans Section 15: 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. Page 5 of 6 Section 16: 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 17: 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 18: A public hearing on this ordinance shall be held on the 11 a, day of June, 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 was published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 29`" day of May, 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 Page 6 of 6 Exhibit A Sec. 26.440.050. Review standards for development in a Specially Planned Area (SPA). A. General. In the review of a development application for a conceptual development plan and a final development plan, the Planning and Zoning Commission and City Council shall consider the following: 1. Whether the proposed development is compatible with or enhances the ' mix of development in the immediate vicinity of the parcel in terms of land use, density, height, bulk, architecture, landscaping and open space. Staff Finding: The Applicant' is proposing a two story. addition on the east side of the library. - The scale and mass of the addition relates to the existing library. The contemporary addition provides lightness to the building by providing abundant glazing. The glazing brings the outdoors into the library connecting patrons to the natural views around them. The entrance is more inviting than the existing entrance facing the plaza. The addition has the potential to help activate the adjoining plaza by creating a space (inclusive of the porch element) where people will dwell. Staff finds this criterion met. 2. Whether sufficient public facilities and roads exist to service the proposed development. Staff Finding: The property is currently served by public facilities. Sufficient public facilities exist to serve the proposed expansion of the library. Staff finds this criterion met. 3. Whether the parcel proposed for development is generally suitable for development, considering the slope, ground instability and the possibility of mudflow, rock falls, avalanche dangers and flood hazards. Staff Finding: The. property is generally suitable for development and does not contain areas of potential mudflow, rock fall, avalanche dangers or floor hazards. Staff finds this criterion met. 4. Whether the proposed development creatively employs land planning techniques to preserve significant view planes, avoid adverse environmental impacts and provide open space, trails and similar amenities for the users of the project and the public at large. Staff Finding.-. The property is not located with a view plane and is designing an addition that should add amenities (such as the covered canopy area) ftr users of the library and Galena Plaza and that will help activate the plaza. Staff finds this criterion met. 5. Whether the proposed development is in compliance with the Aspen Area Comprehensive Plan. Staff Finding: The 2000 AACP does not directly discuss the library; however proposing the expansion of the library at its current location maintains development within the urban growth boundary "to ensure development is contained and sprawl minimized (Managing Growth, Goal D). " Additionally, the expansion of the library "ensures the provision of public facilities and services to sustain arts, culture and education in the community. " (Arts, Culture and Education, Goal E). The Civic Master Plan (2006) does directly discuss the library and "The CMPAG supports an expansion of the Pitkin County library to the east, and recommended that "the design of the building be coordinated with other built edges around Galena Plaza, to the extent possible. " As noted in the application, the expansion is proposed along the existing east fagade and discussions are underway to coordinate the redevelopment of both the library and Galena Plaza. As proposed in the current application, "the CMPAG also recommended that a "meeting room be located on the ground level of the library expansion, to allow for public access to the meeting room at any time, and increase the use and vitality of Galena plaza. " Stafffinds this criterion met. 6. Whether the proposed development will require the expenditure of excessive public funds to provide public facilities for the parcel or the surrounding neighborhood. Staff Finding: The property is currently served by public facilities. Any necessary improvements to such public facilities such as mains, sidewalks or right -of -ways will be borne by the applicant. Stafffinds this criterion met. 7. Whether proposed development on slopes in excess of twenty percent (20 %) meet the slope reduction and density requirements of Subsection 26.445.040.B.2. Staff Finding: The subject expansion area does not contain steep slopes. Stafffinds this criterion not applicable. 8. Whether there are sufficient GMQS allotments for the proposed development. Staff Finding: The application is requesting to build an additional 7,198 square feet to expand the library. As an Essential Public Facility there is no annual limit on allotments. Stafffinds this criterion met. Exhibit B Sec. 26.470 Growth Management Quota System. 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: The library received approval in 1989 for the development of the facility as an Essential Public Facility. Staff believes the library continues to meet the definition of an Essential Public Facility. Staff finds this criterion to be 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 library states that no additional employees are generated by this proposed expansion. According to the application, the library currently has 25 people on the payroll that equals 21.75 Full Time Equivalents (FTEs) as not all staff are full time employees; however, a maximum of 13.92 FTEs are required to handle typical daily operations (both front and back of house). With multiple shifts in a single day to accommodate library hours of operation, the average number of employees working at once is 16 (8 full -time and 8 part- time). With the reconfiguration and expansion of certain library uses /areas and the improved lines of sight, the library does not anticipate the need for more staffing. In looking at the current uses such as the teen reading area and quiet reading, these uses currently do not have designated staff and are proposed to increase in size without necessitating the need for additional staff. Increased meeting space, which will increase square footage, does not currently need staff support and will not in the future. Based on the improved layout of the library and the fact that some of the uses being increased are not currently staffed and do not typically need staffing, staff supports the Page 1 of 4 library's assertion that no new employees will be generated; however, staff does believe that this claim can be confirmed in the future with an employee audit at the request of APCHA. Staff finds this criterion to be met. 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 library is requesting approximately 7,200 square feet of new Essential Public Facility space to construct an addition. Staff finds this criterion to be met. 2. The proposed development is consistent with the Aspen Area Community. Plan. Staff Finding: The 2000 AACP does not directly discuss the library; however, proposing the expansion. of the library at its current location maintains development within the urban growth boundary "to ensure development is contained and sprawl minimized" (Managing Growth, Goal D). Additionally, the expansion of the library "ensures the provision of public facilities and services to sustain arts, culture and education in the community" (Arts, Culture and Education, Goal E). The Civic Master Plan (2006) does directly discuss the library and "The CMPAG supports an expansion of the Pitkin County library to the east, and recommended that "the design of the building be coordinated with other built edges around Galena Plaza, to the extent possible. " As noted in the application, the expansion is proposed along the existing east fagade and discussions are underway to coordinate the redevelopment of both the library and Galena Plaza. As proposed in the current application, "the CMPAG also recommended that a "meeting room be located on the ground level of the library expansion, to allow for public access to the meeting room at any time, and increase the use and vitality of Galena plaza. " Staff finds this criterion met. Page 2 of 4 3. The development conforms to the requirements and limitations of the zone district. Staff Finding: There are no specified dimensional requirements for the Library SPA. The existing building is the site specific approval and the new addition will result in 7,198 square feet of new floor area. 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, 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) Page 3 of 4 Staff Finding: Staff finds this criterion to not be applicable, as the project is being reviewed as an Essential Public Facility. The Housing Board has requested that it be determined that 2.87 FTEs are generate; however, the Planning Commission determined, based upon the Applicant's representations that no new employees are generated. 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 library is centrally located in the downtown and is easily served by public transit. Staff finds this criterion to be met. Page 4 of 4 Exhibit C Development Review Committee (DRC) Comments 1) Engineering Department (April Lone) These comments are not intended to be exclusive, but an initial response to the project packet submitted for purpose of the DRC meeting. Drainage: General note: The design for the site must meet the Urban Runoff Management Plan Requirements. Staff was not able to determine whether or not the site will meet these requirements. A full review will be completed when there is enough information to review. A compliant drainage plan must be submitted prior to final plat: This includes detaining and providing water quality for the entire site. If the site chooses FIL, it can only be applied to existing impervious areas all new areas will need to discharge at historic rates. Note: • The plan mentions that pervious pavers would not adequately service patrons of the library, please explain further. • The plan shows a new inlet, why was it located in this area? Is there a drainage issue here? • What do the drainage lines that run east and west on the north end of the building connect to? It appears that there is a drain line that runs to the north is on City Property, is there an easement for this? • What prevents drainage from sub -basin from sheet flowing across the sidewalk on the south side? What directs it towards the west? • How will high flows be conveyed from sub -basin 1 to Mill Street? Is there an outlet design and pipe overflow from the detention area? Does access easement to Rio Grande parking garage provide language that allows use of the easement for stormwater management? Staff was unable to determine whether or not the site is able to meet the Drainage Principals: A. Consider stormwater quality needs early in the design process B. Use the entire site when planning for stormwater quality treatment. C. Avoid unnecessary impervious area. D. Reduce runoff rates and volumes to more closely match natural conditions. L Integrate stormwater quality management and flood control. F. Develop stormwater quality facilities that enhance the site, the community, and the environment. G. Use a treatment train approach. H. Design sustainable facilities that can be safely maintained. I. Design and maintain facilities with public safety in mind. DRAFT: 3.23.12 Sidewalk and Curb and Gutter: General note: All sidewalk, curb and gutter must meet the Engineering Standards as outlined in Title 21. Engineering is concerned about the pedestrian experience surrounding the site. This includes the following: • Pedestrian access on the north side of the building has several grade breaks for drainage. Also pedestrians use the drive access instead of a sidewalk in this area. Can this area be improved ? • Pedestrian access on the south side of the building has some tripping hazards this includes not only the walkway but also with the abutting curbing. What are the plans to improve this pedestrian experience? • The five foot sidewalk on the west side of the building does not meet the minimum standards of 8 feet. This sidewalk will need to be widened. • Not sure the vehicle pull out will be consistent with the Mill Street project. The pull out also poses hazards with snow removal. Recommend removing this pull out. Utilities: Report describes relocating the electric vault. Will need a plan depicting the new location of the vault. Also depending on the location screening will be recommended. To improve alley access and snow removal, the phone pedestal may need to be relocated. Construction Management : Engineering is concerned about the Construction Impacts of this site. Please submit a construction management plan prior to Council review. The plan must include a planned sequence of construction that minimizes construction impacts on the alley, Mill Street and the Parking Garage entrance. The plan shall describe mitigation for: parking, staging /encroachments, and truck traffic. Excavation Stabilization — Due to the proximity of the neighboring property and the excavation of the building the City will require an excavation stabilization plan prior to building permit submittal: Fee in Lieu —This project is considered a Major project and can opt to pay the Fee in Lieu for a portion of the detention requirements. Please refer to Section 2.12.140 of the Municipal Code. 2) Parks Department (Brian Flynn), Landscaping and Sidewalk Landscaped area: Landscaping in the public right of way will be subject to landscaping in the ROW requirements, Chapter 21.20. There shall be no plantings within the City ROW which are not approved by the City Parks Department and the Engineering Department. DRAFT: 3.23.12 Tree Permit: Per City Code 13.20 an approved tree permit will be required before any tree is removed or impacted under the drip line of the tree. Parks is requiring that the tree permit be approved prior to approval of building permits. If a permit is necessary, contact the City Forester at 920- 5120. Mitigation for removals will be paid cash in lieu or on site per City Code 13.20. Parks will approve a final landscape plan during the review of the tree removal permit based on the landscape estimates. Other Elements: The City Parks Department encourages the applicant to continue coordination efforts between the Library project and the Galena Plaza project. Coordination with the Parks Department should consider; final easement language, irrigation, maintenance responsibilities and areas of maintenance, etc...... 3) APCHA (Cindy Christensen) ISSUE: The Pitkin County Library is proposing an expansion of the existing building by 7,198 square feet. BACKGROUND: As stated in the application, the concept is for the library renovation to create an open, accessible and well - functioning building that reinforces the role of the library as a community hub. The library plans on redesigning and renovating the existing building and expanding onto the Galena Plaza. The work will be done in conjunction with the City of Aspen's work on the parking garage. The library is working with the City as the expansion not only affects the library, but the parking garage and the Galena Plaza. The Galena Plaza is the open space to the east side of the library, and the driveway to the garage from Mill Street is on an easement from the library. A 1989 approval from the City granted an easement for future expansion over the parking garage. DISCUSSION: The library is classified as an essential public facility; however, this designation does not exempt mitigation for employees generated from the expansion. The City Council has the ability to assess the mitigation and either waive or partially waive the requirement for the purpose or promoting civic uses and to consider the broader community goals. The applicant states that when the library is fully staffed, there.are a total of 21.75 FTE's (full -time equivalents). This includes employees working 40 hours per work and those working as few as 10 hours per week. The actual FTE's over the past six years is as follows: Year Actual Library FTE's 2006 20.35 2007 20.92 DRAFT: 3.23.12 2008 20.19 2009 21.75 2010 21.51 2011 20.86 The Employee Generation Rate Schedule (EGRS) listed in Section 26.470.1.00 of the City of Aspen Land Use Code, states that the Public (PUB) zone district generates 3.9 FTE's per 1,000 square feet of net leasable space; however, the EGRS states that the study evaluated only office -type uses and that the number should not be considered typical for other non-office public facilities. Each Essential Public Facility proposal should be evaluated for actual employee generation. Using the EGRS, however, would calculate out to an additional mitigation requirement of 28.07 FTE's (7,198 _ 1,000 X 3.9). At.the required 60% level, the mitigation would be, based on the actual square footage, 16.84 FTE's. The applicant states that there will be no need for additional staff as the expansion will improve sight lines throughout the building and storage for archival collections will increase security as well as maximize efficient use of the current staff. Using the current square footage (31,703) and the approximate number of employees (averaged at 21.05), APCHA calculates that an additional 7,198 square feet of expansion will generate 4.78 FTE's. Historic usage generates .000663975 FTE's per square foot; therefore, .000663975 X 7,198 square feet generates an additional 4.78 FTE's. At the required 60 %, mitigation would be required at 2.87 FTE's. In this instance, the EGRS calculation for non -office uses clearly overstates the mitigation and should not be the basis used. APCHA's calculation attempts to accurately target the Library's employee generation and not unfairly burden them. RECOMMENDATION: The APCHA Board reviewed the application at their regular meeting held March 7 and is recommending the approval of the expansion; however, the APCHA recommends highly that the mitigation not be waived. The APCHA Board would recommend that by utilizing the well documented worker density at 100% requiring mitigation at 4.78 FTE's, the Code requires mitigation at 60 %. The satisfaction of the mitigation requirement would, therefore, be 2.87 FTE's. APCHA recommends that the expected employee generation be offset in one the following ways: 1. Provide on -site units (two- bedroom would satisfy 2.75 FTE's). 2. Purchase 2.87 FTE's (60 %) of Certificate of Affordable Housing Credit Mitigation. 3. Provide off -site units in a project approved by APCHA that is not located in a mixed -use building (does not contain commercial or free - market residential units). Should the City Council waive the employee mitigation, APCHA would recommend an employee audit be required one year and three years after the Certificate of Occupancy is issued. The Library will conduct each employee audit, at their expense. The auditor's. report is to be reviewed and approved by APCHA. If the audit shows an increase in employees, beyond the current 21.75 DRAFT: 3.23.12 FTE's, the applicant should be required to mitigate for 100% of the additional employee generation; however, currently, the required mitigation is at 60 %. 4) Fire (Ed VanWalraven) The fire sprinkler and fire alarm systems shall be modified and approved to accommodate the new addition. Confirmation is required that the current water supply is adequate will meet the increased demand of the additions to fire sprinkler system. Please work with the City or otherwise ensure that all emergency vehicle access is maintained. Other requirements may be necessitated as more detail is provided. 5) Environmental Health (Jannette Whitcomb) Food Protection: The library traditionally used a small kitchen for both employee use and supporting functions held at the library's meeting space. The library's expansion and renovation includes separating the two uses into two small kitchens. While the small kitchen space intended to support the meeting space is not required to be licensed staff recommend installing commercial grade equipment instead of domestic equipment for durability and functionality. A kitchen with a two compartment sink and commercial. refrigerator would support catered events. 6) Sanitation District (Tom) Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office. ACSD will review the approved Drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. On -site utility plans require approval by ACSD. Elevator shafts drains must flow thru oil and sand interceptor. Plans for interceptors, separators and containment facilities require submittal by the applicant and approval prior to building permit. Below grade development may require installation of a pumping system. One tap is allowed for each building. DRAFT: 3.23.12 i Permanent improvements are prohibited in sewer easements or right of ways. Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public ROW or easements to be dedicated to the district. All ACSD fees must be paid prior to the issuance of a building permit. Peg in our office can develop an estimate for this project. once detailed plans have been made available to the district. Where additional development would produce flows that would overwhelm the planned capacity of the existing collection system and or treatment facility, the development will be assessed fees to cover the costs of replacing the entire portion of the system that would be overwhelmed. The District would fund the costs of constructing reserve capacity in the area of concern (only for the material cost difference for larger line). The glycol heating and snow melt system must be designed.to prohibit and discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. Soil Nails are not allowed in the public ROW above ASCD main sewer lines and within 3 feet vertically below an ACSD main sewer line. 7) Utilities (Andy Rosello) Coordinate transformer location with Parks and The Parking garage as moving the existing transformer may have visual impacts, as well as impacts to the Parking garage's service. Prior to permitting they will also need to supply new fire suppression calculations to confirm that the existing service is adequately sized. Since this is a permitting issue it's not vital to incorporate into this round of comments I'm just giving the developer a heads up. DRAFT: 3.23.12 Regular City Planning & Zoning Meeting — Minutes April 3, 2012 LJ Erspamer opened the regular meeting of the Planning and Zoning Commission in Sister Cities Meeting Room at 4:30. Commissioners present were Stan Gibbs, Bert Myrin, Keith Goode, Jim DeFrancia, Jasmine Tygre and LJ Erspamer. Cliff Weiss was not in attendance. Staff in attendance were: Jim True, City Attorney; Debbie Quinn, Assistant City Attorney; Jennifer Phelan, Deputy Community Development Director; and Reed Patterson, Municipal Clerk. Minutes MOTION. Bert Myrin moved to approve the minutes with the correction made by Jasmine on pages 2 and S; seconded by Jasmine Tygre. All in favor APPROVED. Conflicts of Interest None stated Public Hearing: 120 N Mill St (Pitkin County Library) LJ Erspamer opened the public hearing for the Pitkin County Library. Jennifer Phelan provided proof of notice. Jennifer provided an overview of the land use requests for an amendment to the SPA and growth management as P &Z provides a recommendation to City Council for these 2 reviews. P &Z determines the number of employees generated pursuant to land use code 26,470. 100. 1. Jennifer said the library wants to coordinate this SPA Amendment with the Galena Plaza remodel. The Library conducted a needs assessment with open houses by a library consultantthat identified a number of areas that could improve the overall function of the library with the expansion of the young adult area'and children's room, improving access to the music and media room, reconfiguring staff desks and work areas for better efficiency, small group meeting spaces, providing modern amenities such as quiet reading areas, exhibition space, as well as outdoor reading areas and improving accessibility to the library collection. Jennifer said the applicant proposed an expansion to the east with a two story addition totaling 7,198 square feet approximately 27 feet tall measured from Galena Plaza. The main level of the addition proposed 5,899 square feet and the mezzanine level 1,299 square feet. There is also a proposed conditional use of the expansion a canopy or porch element would project outside the existing easement. Employee generation review with P &Z pursuant 26.470.110 of the code to determine employee generation. The applicant stated that no new employees would be provided or needed. The current staffing at the library is 8 full time and 2 Regular City Planning & Zoning Meeting — Minutes April 3, 2012 8 part time employees and in the summer when the library is busier temporary part time employees are added. APCHA recommended an employee mitigation requirement of 2.87 FTEs based upon square footage. The library is unique operation and many areas are not staffed such as the quiet reading areas and more open floor space. APCHA has requested if the employees need not be mitigated for then they suggested an audit of employees after one and three years in operation. Suzanne Jackson and Willis Pember from the Design Workshop were in attendance as well as Kathy Chandler, Director of the Library. The Civic Master Plan supports the library expansion and it will be a benefit to the community. Stan Gibbs asked if there would be a cafe and this was only a suggestion to make it more of a social atmosphere. LJ Erspamer asked about parking and the traffic engineer study saying there was plenty of parking and no additional parking was needed and Transportation was not worried about any impacts from parking. ® Public Comments: 1. RebeccaVeiss said that she uses the library quite a bit and has two children who also use it. Rebecca said the relocation of the children's room will be a plus and she supports the proposal. 2. Joanna Rodden, representing English in Action, works with tutors with immigrants and uses the library for training meetings. Joanna supports the library proposal. 3. Andrew Ernemann said he lived next to the library in Galena Loft and supports the expansion done in tandem with Galena Plaza.. Andrew expressed concern with the noise from construction and questioned the size of the extended roof. 4. Jack Wheeler said that he vas in favor of the library proposal. 5. David Bentley said this was of great importance to the library and supported this proposal. 6. John Wilkinson said that his children were.raised in the library and the new access to resources was important and he supported going forward with the expansion. 7: Jim Moran stated that he was a library board member and the meeting rooms come alive with lots of uses and supported the proposal. ® 8. Barbara Reed said the study space was needed and she supported the proposal. 3 Regular City Planning & Zoning Meeting — Minutes April 3, 2012 • 9. There were letters in support of the library planned expansion from Ian Soroka, Susan Atwood, Angel Naivalu, Marshall B. Webb, Rosie Rushing, Parker Samuelson, Anna Steinberg, Lillian Burrows and Coen Needell were included in the packet. Commissioner Comments: Bert Myrin spoke about the SPA Amendment from the memo on page 11, the essential public facility on page 13 and the employee generation on page 14. Bert noted that he supported APCHA's recommendation for the employee generation based on an employee per square foot of building. Stan Gibbs said the roof was too massive; he supports the library's assertion that no new employees are generated based on the unique operationsof the library. It.is not an office building. However Stan supports an APCHA audit be required in the future to verify no employees are generated by the expansion. If it is determined that employees are generated, then he supports the code in effect at the time of the audit be followed with regard to employee generation. Jasmine Tygre stated that she was an avid library user and the expansion was ® greatly needed. Jasmine was in support of the proposal but did not like the arch at all and it was not a welcoming entrance. Jim DeFrancia liked the arch and supported the proposal. LJ Erspamer said he did not like the arch but supports the proposal.. MOTION: Bert Myrin moved to recommend City Council approve Resolution #008 -12 for the SPA Amendment with a'recommendation to the applicant to study the perceived mass of the roof to make it appear less imposing and to allow the library to construct a proposed addition as an essential public facility. In consideration of the applicant's representation no new employees will be generated P&Z recommends and audit after the first and third years after the Certificate of Occupancy has been issued and shall be subject to any employee mitigation apply to the code at that time. Seconded by Jim DeFrancia. Roll call vote: Keith Goode, yes; Stan Gibbs, yes; Jasmine Tygre, yes; Jim DeFrancia, yes; Bert Myrin, yes; LJ Erspamer, yes. All in favor, APPPROVED. djourped at 7. 5 pm. • o, Jackie Lothian, Deputy City Clerk 0 RESOLUTION NO.8 (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN PLANNING AND ZONING COMMISSION RECOMMENDING THE CITY, - COUNCIL APPROVE A SPECIALLY PLANNED AREA (SPA) AMENDMENT, AND AN ESSENTIAL PUBLIC FACILITY GROWTH MANAGEMENT REVIEW, FOR THE PITKIN COUNTY LIBRARY TO CONSTRUCT A TWO STORY ADDITION TO THE EXISTING FACILITY, 120 N. MILL STREET, CITY OF ASPEN, COLORADO, LEGALLY DESCRIBED AS LOT 2 AND 3 OF THE RIO GRANDE SUBDIVISION. ti Parcel IDs 273707306852 and 273707306853 WHEREAS, the Community Development Department received an application from the Pitkin County Library, represented by Design Workshop, requesting approval of a Specially Planned Area (SPA) amendment, and an Essential Public Facility Growth Management Review, to construct a two story addition onto the east facade of the Pitkin County Library; and, WHEREAS, the Applicant requests a recommendation by the Planning and Zoning Commission , to the City Council for a Specially Planned Area (SPA) Amendment, and Essential Public Facility Growth Management Review; and, WHEREAS, the property is located in the Rio Grande Subdivision and is zoned Public (PUB) with an SPA Overlay; and, WHEREAS, the addition is proposed upon part of Lot 2 of the subdivision and commonly known as Galena Plaza; and, WHEREAS, upon initial review of the application and the applicable code standards, the Community Development Department recommended approval of a Specially Planned Area (SPA); and, WHEREAS, during a duly noticed public hearing on April 3, 2012, the Planning and Zoning Commission approved Resolution No. 8, Series of 2012, by a six to zero (6 — 0) vote, recommending City Council. approve an amendment to the Rio Grande SPA and an Essential Pubic Facilities Growth Management Review for the library expansion; and, WHEREAS, the Planning and Zoning Commission 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 Community Development Director, the applicable referral agencies, and has taken and considered public comment; and, Pagel of 3 WHEREAS, the Planning and Zoning Commission 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 the Civic Master Plan; and, WHEREAS, the 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: Approvals Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the Planning and Zoning Commission hereby recommends City Council approval of a Specially Planned Area (SPA) amendment to the Pitkin County Library SPA, and an Essential Public Facility Growth Management Review. In consideration of the Applicant's representation that there will be no new employees generated, the Planning and Zoning Commission recommends that an employee audit be required one and three years after a Certificate of Occupancy is issued. If employees are found to be generated, any employee mitigation shall be subject to the rules and regulations in effect at the time of the audit. Section 2: Design The proposed addition shall comply with the plan shown at the April 3, 2012 P &Z meeting, and attached as Exhibit A. The Planning and Zoning Commission recommends, under section 26.440.050 (A)(1), that the scale of the addition is acceptable, but recommends that the applicant study the perceived mass of the roof to make it appear less imposing. 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 Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 5• If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such Page 2 of 3 portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED BY the Planning and Zoning Commission of the City of Aspen on this 3rd day. of April, 2012. APPROVED AS TO FORM: PL NNjNa AND ZONING CMISB{ION: times R. True, City Attorney L *,rspamer, Chair i� ATTEST: ` �Lothi'pn, i ackie Deputy City Clerk EXHIBITS: Exhibit A: Elevations of proposed addition Page 3 of 3 ,�\ L ,: 77 N F-MOR, 4-J CL C:) Q0 u c 4-j 0 u .0 o CL u u b I -� >y% �:� °} t } �. .t MEMORANDUM TO: Mayor and City Council FROM: CJ Oliver, Environmental Health Director(1 DATE OF MEMO: 5/21/2012 MEETING DATE: 5/29/2012 RE: Change to Ordinance 13 -04 -010 to allow for composting toilets REQUEST OF COUNCIL: Staff is requesting that Council approve a change to Ordinance 13- 04 -010 to allow for composting toilets to be installed on publicly owned land in the City of Aspen as well as other parcels as specified in the attached code change language. BACKGROUND: The current language in the City of Aspen Municipal Ordinance 13-04 - 070(a) does not allow for permanent on -site waste disposal systems of any kind to be installed in the City of Aspen. The ordinance requires new buildings to hook into the public sewer system for.transportation and treatment of. waste. Per Council's request at the first reading, language has been developed for a list of requirements including compliance with applicable building codes and installation of secondary containment for the composting vessels. DISCUSSION: By making the requested ordinance change the City of Aspen would allow for innovative composting restroom facilities to be put in place on parks and open space properties to service large numbers of users while using minimal amounts of water. The end product of the composting toilet operation would be a beneficial compost product that can be used to enrich topsoil. The proposed new restroom facility for the Rio Grande Park, which council recently approved, specifies composting style toilets which are not connected to the public sewer system. The Rio Grande Park improvement project is the driving force behind the requested ordinance change but if it is successful there may be future applications in other specified areas where this technology would be beneficial. An additional benefit to this type of installation is that it prevents the disturbance of what can often be long expanses of native vegetation to install a connection to the public sewer system. FINANCIALBUDGET IMPACTS: This ordinance change does not have a significant financial impact as the management of the composting toilet systems would be conducted by Page 1 of 2 existing Parks staff. For certain applications there are cost savings from not having to install significant lengths of sewer pipe to make a connection to the public sewer system. The largest benefit of the composting type toilets is in the reduced environmental impacts the composting facilities will offer. ENVIRONMENTAL IMPACTS: 2012 is shaping up to be a year of drought conditions and the city is already taking active steps to reduce its water consumption. Approval of the composting toilet system for the Rio Grande would translate to a significant water savings over the use of classic style restroom facilities, 1.6 gallon per flush compared to a classic low flow toilet. In the case of Rio Grande Park there is also a benefit of not having to disturb native vegetation to run sewer pipe from the restroom location over to Rio Grande Place to hook into the existing sewer line. Similar benefits would also be realized if future installations are done in additional parks. Specific requirements have been included for secondary containment of the composting compartment to minimize the risk of negative environmental impacts associated with potential leaks or spills. RECOMMENDED ACTION: Staff recommends that council approve the proposed changes to ordinance 13 -04 -010 to allow for the installation of composting toilets on parks and open space zones parcels. ALTERNATIVES: Council could keep the existing language in 13 -04 -070 and require the new Rio Grande Park restrooms to hook into the public sewer system. PROPOSED MOTION: "I move to approve Ordinance # 16 Series 2012" CITY MANAGER COMMENTS: ATTACHMENTS: Ordinance # 16 Series 2012 Environmental Health Requirements for Composting Toilet Installation Page 2 of 2 ORDINANCE NO. (p (Series of 2012) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING CHAPTER 13.04 OF THE ASPEN MUNICIPAL CODE REGARDING WATER QUALITY. WHEREAS, The City of Aspen seeks to be a leader on environmental issues; and WHEREAS, Water is a scarce and valuable resources in the intermountain west and composting toilets use minimal amounts of water to operate; and WHEREAS, the proposed changes to this ordinance will allow the installation of composting toilets within certain zone districts where the use of standard toilet facilities may be impractical due to specific site constraints; and, WHEREAS, the amendments to the Code are delineated as follows: • Text being removed is delineated with strikethrough. Te*t being Fean}eved looks like this • Text being added is bold and underline. Text being added looks like this. • Text which is not highlighted is not affected; and WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1: The City Council hereby amends Chapter 13.04 of the Aspen Municipal Code as follows: Sec. 13.04.010. Definitions. (a) Comnostinz Toilet shall mean: A human waste disposal system consisting of a toilet that uses little or no water connected to a specially built tank in which waste material is decom- posed by aerobic bacteria. L�L(O Enjoined shall include temporary, preliminary and permanent injunctive relief. (c) (b) Municipal water supplies means all surface and underground water rights, whether absolute- ly or conditionally decreed, of the City, which are used or are capable of being used for any benefi- cial purpose, including, without limitation, municipal, commercial, aesthetic, irrigation, minimum stream flow, fish and game propagation, recreation, domestic, industrial uses and augmentation and exchange. (c4 Nonpoint source means any source of pollutant other than a point source and includes, with- out limitation, water use and development practices, activities which encroach on riparian areas, vegetation disturbance, soil disturbance and earth movement, impervious cover and storm water runoff from developed areas. (e) (4) Permit means a permit lawfully issued pursuant to Public Law 92 -500, the Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. 1251, et seq.) or pursuant to Section 25 -8- 501, C.R.S. 1973 et seq. ff' (e3 Person means an individual, corporation, partnership, association, municipality, district, fed- eral or state agency, commission or other state or federal body or political subdivision thereof. , JjgJ (€) Point source means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel; tunnel, conduit, well, discrete fissure, container, rolling stock or concentrated animal feeding operation from which pollutants are or may be discharged. (.g) Pollutant means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste dirt and slurry.. (4) Presumption means that any person charged with the waste of water resources shall bear the burden of proving that the water diversions which were wasted did not contribute to or result in a i degradation of the water quality standards set forth in Section 13.04.020 below. W (i) Sources means any area which contributes to the water supply of any stream or river and in- cludes, without limitation, any drainage basin or underground aquifer. q) Waste means -the .failure to apply water diverted from any source which contributes to municipal water supplies to a beneficial use and includes, without limitation, causing or permit- ting the application of water in excess of that reasonably required to accomplish the purpose or purposes for which the water is diverted; permitting water to escape from ditches, canals or other structures in excess of reasonable loss; and any diversion of water rights decreed for a given purpose under circumstance which cannot reasonably justify such usage. Sec. 13.04.070. On-site waste disposal system. (c) Notwithstanding any provision herein to the contrary, at the sole discretion of the Envi- ronmental Health Director, a composting toilet may be constructed upon publicly owned Property or upon privately owned property within the City of Aspen in excess of five (5) acres. Such composting toilet shall be constructed and maintained pursuant to standards is- sued by the Environmental Health Department. If in the opinion of the Environmental Health Director any approved and installed composting toilet constitutes a potential threat to the public health, then the Environmental Health Director shall require improvements to the constructed toilet or to the maintenance procedures or shall revoke permission for use of the composting toilet. Any such requirements, including removal of the toilet, shall be completed by the .property owner within ten (10) days of notice from the Environmental Health Direc- tor. Section 2: Severability. . If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 3. Existing Litigation. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 4. Effective Date. This ordinance shall be effective as of thirty (30) days from the date of final approval. Section 5. Notice A public hearing on the ordinance was held on in the Aspen City Council Chambers, 130 S. Galena St., Aspen, -Colorado, °fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the day of 2012. Michael C. Ireland, Mayor ATTEST: Kathryn Koch, City Clerk FINALLY, adopted, passed and approved this _ day of , 2012. ATTEST: Kathryn- Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: James R. True, City Attorney City of Aspen Requirements for Installation of Composting Toilets Composting Toilets A. Deposits of feces, urine and readily compostable items such as kitchen scraps, food waste, etc. that are not diluted with water or other fluids may be retained and treated in a composting toilet. B. Only manufactured composting toilets meeting NFS or an equivalent testing program may be installed. C. The composting toilet maybe located within a building or dwelling, provided that: 1) It is specifically designed for interior use; 2) It complies with the applicable requirements of these regulations and the building code; and 3) The installation will not result in conditions considered to be a health hazard as determined by the Environmental Health Director. D. The effective volume of the composting toilet shall be sufficient to accommodate the number of persons served. E. The compartments and appurtenances related to the composting toilet shall include fly -proof construction and exterior ventilation as required by the building code. F. When the composting toilet is filled to (75 %) of its capacity the residue shall be removed and disposed of by acceptable solid waste practices. G. No composting toilet shall be installed to serve in a capacity in excess of its design. H. If a composting toilet will be installed where low temperatures may be a factor, the design shall compensate for those temperatures. The composting toilet shall include secondary containment for the collection compartment to contain any spills or leaks on site.