HomeMy WebLinkAboutagenda.council.regular.20120910 CITY COUNCIL AGENDA
September 10, 2012
5:00 P.M.
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
Janice Voss — County Clerk
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)
P1 a) Resolution #86, 2012 — Contract with Heyl — conduit for City Electrical Systems.
P21 b) Resolution #87, 2012 — Contract Vehicle for APCHA — Ford Fusion
P31 c) Resolution #88, 2012 — Lindsay parcel acquisition for open space
VII. First Reading of Ordinances
VIII. Public Hearings
P49 a) Ordinance #21, 2012 — Hume Subdivision Amendment
P75 b) Ordinance #22, 2012 —Sales Tax bonds — Parks Projects
IX. Action Items
P123 a) 435 W. Main — Call UP
X. Executive Session
XI. Adjournment
Next Regular Meeting September 26, 2011
COUNCIL'S ADOPTED GUIDELINES
• Stick to top priorities
• Involve others in community problem solving
• Be thorough, deliberate and accountable for consequences when making decisions
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
a .
MEMORANDUM
TO: Mayor and City Council
FROM: Andy Rossello, Utilities Engineer
THRU: Mike McDill, Deputy Director of Utilities
Dave Hornbacher, Director of Utilities and Environmental
Initiatives
DATE OF MEMO: September 4th, 2012
MEETING DATE: September 10th, 2012
RE: Approval of a contract between the City of Aspen and Heyl
Construction for the installation of conduit and vaults for City
Electrical Distribution System.
REQUEST OF COUNCIL: Staff requests a contract award to Heyl Construction in the amount
of$299,422.00 for the installation of conduit and vaults to connect electric switch gears at Koch
Park to City Market. This connection will provide for improved service to the west end which is
currently fed through aging, directly buried wire.
PREVIOUS COUNCIL ACTION: Council has approved this capitdl project with the approval
of the 2012 Budget.
BACKGROUND: This connection increases the reliability of the City of Aspen electric system
that serves businesses and residences in the vicinity of this improvement. Installation of a conduit
based system allows for future cable replacement without additional street cuts which would be
otherwise required if the cable were directly buried. . Further, the conduit provides additional
mechanical protection of the electric cable in the event that the Right of Way is disturbed in the
vicinity of this system. Through coordination with City Engineering, the one block segment
adjacent Rubey Park was installed with the Rubey Park Concrete improvements in the spring of
2012. To complete this electric tie, through a separate bid and construction the electrical wire
will be installed, and energized in late 2012 or early 2013.
DISCUSSION: This install will provide for more efficient operation of the City Electrical system.
It will allow for maintenance and installation of new wire without future digging costs.
FINANCIAL/BUDGET IMPACTS: The costs associated with the installation of this
infrastructure are within the $450,000.00 initial scope for this project.
Page 1 of 2
ENVIRONMENTAL IMPACTS: The environmental impacts of this project are minimal. The
contractor will be tasked with proper Storm-water Control including the use of Best Management
Practices. Ultimately the conduit will allow for future improvements without excavation, which
will minimize the need for heavy equipment operation in downtown.
RECOMMENDED ACTION: We request the council approve the expenditure of$299,422 for
the installation of Koch Park to City Market.
ALTERNATIVES: Alternatives include, direct burying wire in the future, creating higher
additional maintenance expense. The other alternative would be to leave the system operating in
present condition until the system fails and replace at that time.
PROPOSED MOTION: I move to approve Resolution# {
CITY MANAGER COMMENTS: e d
ATTACHMENTS:
A. Proposal/Bid
Page 2 of 2
RESOLUTION # � 6
(Series of 2012)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND HEYL CONSTRUCTION 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
Koch Park to City Market Distribution System, between the City of Aspen and
Heyl Construction, 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 Koch Park to City Market Distribution System, between the City of Aspen and
Heyl construction, 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 10th day of September 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, September 10, 2012.
Kathryn S. Koch, City Clerk
Z'1 iE G i Y of ASPEN
City of Aspen
KOCH PARK TO CITY MARKET
DISTRIBUTION SYSTEM
City Project Number: 2012-098
Proposal From
E
THE AMERICAN INSTITUTE OF ARCHITECTS
AIA Document A310
Bid Bond
KNOW ALL MEN BY THESE PRESENTS, THAT WE Heyl Construction Inc
6560 CR 335 New Castle CO 81647
as Principal, hereinafter called the Principal, and Developers Surety and Indemnity Company
P. O. Box 19725 Irvine CA 92623
a corporation duly organized under the laws of the State of IA
as Surety, hereinafter called the Surety, are held and firmly bound unto City of Aspen, CO
130 South Galena Street Aspen, CO 81611
as Obligee, hereinafter called the Obligee, in the sum of Five Percent of Amount Bid
Dollars ($ 5% }
for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs,
executors, administrators, successors and assigns,jointly and severally,firmly by these presents.
WHEREAS,the Principal has submitted a bid for Koch Park to City Market Distribution System,.Pro'ect#2012-098
NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with
the Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or
Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt
payment of labor and materials furnished in the prosecution thereof, or in the event of the failure of the Principal to enter
such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the
penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith
contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise
to remain in full force and effect.
Signed and sealed this 20th day of August 2012
Attest: He I Construction, Inc. _
Principal) (S& %)
By: p
e :
(Tidp)
Witness: Developers Surety and Indemnity Company
(Surety) (Seal)
By. (Witness) � 4Affoim Nicole L. cCollam Fact Jessica Talbot
i
AIA DOCUMENT A310•BID BOND•AIA•FEBRUARY 1970 ED.0 THE AMERICAN
INSTITUTE OF ARCHITECTS,173 VE.,N.W.,WASHINGTON,D.C.20006
QMA
1550 17th Street,Suite 600
Denver,CO 80202-1657
Phone 303.534.4567
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
INDEMNITY COMPANY OF CALIFORNIA
PO Box 19725,IRVINE,CA 92623 (949)263-3300
KNOW ALL BY THESE PRESENTS that except as expressly limited,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,do each
hereby make,constitute and appoint:
"""Sarah Finn, Nicole L. McCollam, Kristen L.McCormick,Jennifer Bub, Sue Wood, Robert J. Reiter, Bradley J.Jeffress, Sheryll
Shaw, Robert L.Cohen, Philip J. Monasch,Jessica Talbot, Michael Lischer,Jr.,jointly or severally`"`
as their true and lawful Attorneys)-in-Fact,to make,execute,deliver and acknowledge,for and on behalf of said corporations,as sureties,bonds,undertakings and contracts of surety-
ship giving and granting unto said Attorney(s)-in-Fact full power and authority to do and to perform every act necessary,requisite or proper to be done in connection therewith as each of
said corporations could do,but reserving to each of said corporations full power of substitution and revocation,and all of the acts of said Attorney(s)-in-Fact,pursuant to these presents,
are hereby ratified and confirmed.
This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS SURETY
AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA,effective as of January 1 st,2008.
RESOLVED,that a combination of any two of the Chairman of the Board,the President,Executive Vice-President,Senior Vice-President or any Vice President of the
corporations be,and that each of them hereby is,authorized to execute this Power of Attorney,qualifying the attorney(s)named in the Power of Attorney to execute,on behalf of the
corporations,bonds,undertakings and contracts of suretyship;and that the Secretary or any Assistant Secretary of either of the corporations be,and each of them hereby is,authorized
to attest the execution of any such Power of Attorney;
RESOLVED,FURTHER,that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile,and any such
Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporations when so affixed and in the future with respect to any bond,undertaking
or contract of suretyship to which it is attached.
IN WITNESS WHEREOF,DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by
their respective officers and attested by their respective Secretary or Assistant Secretary this October 4th,2011.
\ I
Daniel Young,Senior Vice-President ;:� a t� 4 ,% y�+ Op,POR,����
OCT. T �G 0
10 OCT.S n
By: �G^ `c`�� 1 9 3 6 1967
Steve A.Tvedt,Vice-President ' C 1F �a�F
,.... < a
Slate of California * ,,,,•'
County of Orange
On October 4 2011 before me, Antonio Alvarado Notary Public
Date Here Insert Name and Title of the Officer
personally appeared Daniel Younq and Steve A.Tvedt
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to
the within instrument and acknowledged to me that helshelthey executed the same in hislherltheir authorized
ANTONIO ALVARADO capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of
9 which the person(s)acted,executed the instrument.
COMM.# 1860643
NOTA€C/Pt1BW CALIFORNIA I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
ORANGE COUNTY true and correct.
My expires Ate 0,201
WITNESS my hand and official seal. /
Place Notary Seal Above Signature --
Antonio Alvarado,Notary Public
CERTIFICATE
The undersigned,as Secretary or Assistant Secretary of DEVELOPERS SURETY AND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA,does hereby
certify that the foregoing Power of Attorney remains in full force and has not been revoked and,furthermore,that the provisions of the resolutions of the respective Boards of Directors of
said corporations set forth in the Power of Attorney are in force as of the dale of this Certificate
This Certificate is executed in the City of Irvine,California,this 20t"day of August 2012,
By: 10
Gregg Okur istant Secretary }q G
ID-1380(Rev.10111)
REVISED BID PROPOSAL FORM
PROJECT NO. : 2012-098
BID DATE: August 20,2012
PROJECT: DURANT AVENUE ELECTRICAL CONDUIT INSTALLATION
PROPOSAL SUBMITTED BY: Heyl Construction, Inc
CONTRACTOR
CONTRACTOR'S PROPOSAL
TO: The Governing Body of the City of Aspen, Colorado
The undersigned responsible bidder declares and stipulates that this proposal is made in good faith,
without collusion or connection with any other person or persons bidding for the same work, and that it
is made in pursuance of and subject to all the terms and conditions of the advertisement for bid, the
invitation to bid and request for bid, all the requirements of the bid documents including the plans and
specifications for this bid, all of which have been read and examined prior to signature. The bidder
agrees to keep this bid open for Sixty (60) consecutive calendar days from the date of bid opening.
The Contractor agrees that construction shall start immediately following a mandatory pre-construction
conference held by the Engineering Department, which also constitutes the Notice to Proceed.
Submission of this proposal will be taken by the City of Aspen as a binding covenant that the Contractor
will finish construction within the time specified in the Special Conditions of this contract document.
The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to
the City, to waive any informalities or to reject any or all bids.
The City shall not pay the Contractor for defective work and/or for repairs or additional work required
for successful completion of the project. All work not specifically set forth as a pay item in the bid form
shall be considered a subsidiary obligation of the Contractor and all costs in connection therewith shall
be included in the prices bid for the various items of work. Prices shall include all costs in connection
with furnishing the proper and success completion of the work, including furnishing all materials,
equipment and tools, and performing all labor and supervision to fully complete the work to the City's
satisfaction.
Poor quality and workmanship shall not be paid for by the City. Such work product must be removed
immediately and replaced properly at no cost to the City.
All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a basis
for estimating the probable cost of work and for the purpose of comparing the bids submitted to the City.
The basis of payment shall be the actual amount of materials furnished and work done. The Contractor
agrees to make no claims for damages, anticipated profit, or otherwise on account of any differences
between the amount of work actually performed and materials actually furnished and the estimated
amount of work.
The City reserves the right to increase or decrease the amount of work to be done on the basis of the bid
unit price and up to plus or minus Twenty Five (25)Percent of the total bid.
By signing this document, Contractor 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 it does not employ illegal aliens.
I hereby acknowledge receipt of ADDENDUM(s) numbered 1 through 1
ESTIMATED QUANTITYLIST
BID ITEM DESCRIPTION UNIT QUANTITY PSI LCEE COST
Performance, Payment, Maintenance Bond(s) $8,436.56
Electric trench LF 2,140 $27.61 $59,085.40
Over-excavation CY (price per unit) $176.5 $176.56
6" Sch. 40 grey electric conduit-installed LF 4,555 $5.77 $26,282.35
2" Sch. 40 grey electric conduit -installed LF 2,120 $6.57 $13,928.40
6" Electric sweeps - 60" min.rad. -installed EA 4 $149.95 $599.80
2" Electric sweeps - 60" min.rad. -installed EA 2 $41.05 $82.10
TxT OD Electric Vault- installed EA 3 $4,966.22 $14,898.66
Hot Bituminous Asphaltic Pavement SY 1426 $49.61 $70,743.86
Hot Bituminous Asphaltic Overage SY (Price per Unit) $49.61_ $49.61
CDOT Class 6 Aggregate Base Course CY 1285 $39.66 $50,963.10
Curb and Gutter LF 20 $48.00 $960.00
Remove & replace landscape areas LS $11.644.80 $11,644.80
�(. 40q t j
Traffic Control Daily Cost (dailcost*duration) $1,500 $22,500.00
Mobilization LS $19.090.80 $19,090.80
Alt 1. Full Depth Asphalt CY 64 $1,006.25 $64,400.00
(Attach Additional Quantity Lists as necessary)
TOTAL BID IN NUMBERS: $299,442.00
Total Bid in Words: Two Hundred Ninety Nine Thousand Four Hundred Forty Two 0/100
I acknowledge that in submitting this bid it is understood that the right to reject any and all bids has been
reserved by the owner.
Authorized Officer: David Heyl , Tit e: President
Full name signature:
Company address: 6560 County 335 New Castle, CO 81647
Telephone number: 970.984.3404
Email: dhe 1 c,heylcivil.com
Attested by: 4""1" �c
END OF ADDENDUM #1
LIQUIDATED DAMAGES
for
FAILURE TO COMPLETE THE WORK ON TIME
[undersigned undersigned contractor declares his/her frill awareness of the content and terms of this contract and
rms that the contractual time is the period mentioned in the contract Specifications plus the time
ension(s), if any, granted by the City of Aspen for successful completion of project. T he
contractor further acknowledges he/she understands and agrees to liquidated damages to
deducted from moneys due to him/her for any delayed calendar day beyond the total time at the rate
$1,000.00 per day. This amount and the total allowed time by the City shall not be negotiable under
conditions.
Attest:
Corporate Seal Hey]Construction, Inc
Contractor
B '
STATE OF COLORADO )
SS.
COUNTY )
Before me 7)c- i c— a notary public and for
County, Colorado personally appeared known to
me personally to be the person(s)whose signature(s) in my presence this day of
A.D. 201 ..,
My commission expires:
(Seal)- �
Notary Public
*LD 1
LI I-971 doc
AFFIDAVIT OF COMPLIANCE
PROJECT NUMBER: 2012-098
The undersigned contractor has read a copy of the Contract Documents including the
construction plans, for this project and understands and hereby affirms that he/she does not now,
nor will he/she in the future, violate the provisions of said Contract Documents, so long as he/she
is under the Contract to the City of Aspen for the performance of a Contract. The undersigned
further acknowledges he/she understands and agrees to all terms and conditions of the Aspen
Municipal Code and its being part of the Contract with the City of Aspen.
Attest: ���" 'z xw�
Corporate Seal Heyl Construcrtion, Inc
Contractor
B '
STATE OF COLORADO )
SS.
COUNTY )
Before me , a notary public and for
County, Colorado personally appear
Gown
to me personally to be the person(s)whose signature(s) in y presence this o76
day of , A.D. 201,.
My commission expires:
(Seal
Notary Public
is
_.
AC I-97I.dx
"AC1
Subcontractor & Material Supplier List
Name: Grand Junction Pipe , Phone#: 970.963.5700
Address: Carbondale
Service or Product: pipe and vault
Mayne. Western slope materials , Phone#: 970.963.0180
Address:
Service or Product: class 6 and any aggregate
Name: Grand River Construction , Phone#: 970.945.7588
Address: Glenwood Springs
Service or Product: Asphalt
BP1-971.doc 'BPI Page 3
dh
Contractor's Initials
Hey1m
Last 7 Years Completed and work in progress
Date Completed Job Number Job Description Contract Amount Owner/Contractor Contact Number Complete
May-04 03-CC-104 EAGLE POOL $ 346,000.00 Town of Eagle 970-328-6678 100%
Oct-04 04-CC-104 SNOWMASS UTILITIES $ 155,872.50 Town of Snowmass 970-923-5110 100%
Oct-05 04-CC-105 OBERMEYER $ 2,827,524.79 RA Nelson 970-748-7640 100%
Sep-04 04-CC-107 REDSKY RANCH SEPTIC SYSTEM $ 27,353.97 Vail Resorts 970-476-7499 100%
Sep-04 04-CC-112 VAIL MTN T&M $ 9,352.70 Vail Resorts 970-476-7499 100%
Oct-04 04-CC-115 SNOWMASS VILLAS $ 75,006.83 RA Nelson 970-748-7640 100%
Dec-04 04-CC-116 EAGLE PRE TREATMENT $ 71,503.20 Town of Eagle 970-328-6678 100%
Dec-04 04-CC-118 RANELSON GENERAL CONDITIONS $ 25,571.71 RA Nelson 970-748-7640 100%
05-CC-121 MISCJOBS $ 196,173.16 100%
Nov-05 05-CC-122 VAIL MTN SCHOOL $ 95,388.33 Shaw Construction 970-476-0454 100%
Sep-05 05-CC-123 GLENWOOD SOUTH PARK PHIII $ 328,840.40 City of Glenwood 970-384-6400 100%
Sep-05 05-CC-124 VAIL MTN LODGE $ 8,853.89 Shaw Construction 970-476-0454 100%
Oct-05 05-CC-125 LITTLE NELL WATER LINE $ 600,197.97 Swinerton 970-544-9990 100%
Jun-06 05-CC-127 SNOWMASS SOUTH CONDOS $ 428,775.00 RA Nelson 970-748-7640 100%
Sep-06 05-CC-129 ARRABELLE MASS EXCAVATION $ 7,362,647.16 Shaw Construction 970-476-0454 100%
Oct-OS 05-CC-130 ANNIE MITCHEL $ 33,062.57 Shaw Construction 970-476-0454 100%
Oct-06 06-CC-131 GLENWOOD 6TH ST WTRLINE $ 411,329.00 City of Glenwood 970-384-6400 100%
06-CC-133 2006 MISC T&M JOBS $ 55,635.00 100%
May-07 06-CC-137 Sky Legend PH I T&M $ 293,839.80 ASW Partners 970-777-7780 100%
Jun-06 06-CC-138 Vail Amaco Demo $ 102,422.00 Vail Resorts 970-476-7499 100%
Jun-07 06-CC-140 Sky Legend PH II $ 1,474,113.00 ASW Partners 970-777-7780 100%
May-07 06-CC-141 Lime Light Lodge $ 596,293.00 RA Nelson 970-748-7640 100%
Nov-06 06-CC-142 Silt School $ 1,241,402.73 Haselden Constuction 303-728-3742 100%
May-07 06-CC-143 Lime Light-Monarch $ 552,560.00 RA Nelson 970-748-7640 100%
2007 07-CC-145 Still Water-T&M $ 12,839.00 Sutton Western 303-670-4392 100%
07-CC-146 2007 Misc T&M $ 220,299.00 100%
Oct-07 07-CC-147 Sky Legend Bike Path-T&M $ 182,164.45 ASW Partners 970-777-7780 100%
Oct-07 07-CC-149 Sinclair Meadows Dewatering $ 647,143.00 Clearwater/Westpac 970-379-3709 100%
Nov-07 07-CC-154 Gibson Ave Storm Sewer $ 221,813.00 City of Aspen 970-920-5080 100%
Sep-08 07-CC-150 Sinclair Meadows Fawn Court T&M $ 28,377.00 Clearwater/Westpac 970-379-3709 100%
07-CC-999 2007 Misc T&M $ 235,710.00 100%
Oct-07 06-CC-132 SHADOW ROCK-EL JEBEL $ 9,085,546.11 Madison Partners 214-212-0022 100%
Jun-07 07-CC-144 Mira Loma $ 3,382,297.00 Sutton Western 303-670-4392 100%
May-09 07-CC-148 Sinclair Meadows $ 4,796,465.00 Clearwater/Westpac 970-379-3709 100%
Aug-08 08-CC-157 Highway 82 Willits intersection $ 739,702.00 Madison Partners 214-212-0022 100%
May-09 08-CC-158 Donegan Road Reconstruction $ 1,147,779.00 City of Glenwood Springs 970-384-6400 100%
Jun-09 08-CC-151 Carbondale Street Scape $ 2,537,599.00 City of Carbondale 970-963-1890 100%
Dec-OS 08-CC-161 Rifle Road reconstruction $ 1,144,080.00 City of Rifle 970-625-6272 100%
May-09 08-CC-164 Glenwood Springs Trails $ 435,000.00 City of Glenwood Springs 970-384-6400 100%
Sep-09 09-CC-170 Cordillera Water Main $ 294,987.00 Cordillera Metro Distict 970-569-6260 100%
Dec-09 09-CC-173 Meadow Lane Water Main $ 359,045.00 Eagle River Water District 970-476-7480 100%
Dec-09 09-CC-174 Larkspur Lane Water Main $ 561,849.00 Eagle River Water District 970-476-7480 100%
Dec-09 09-CC-169 Aspen 2009 Concrete Project $ 484,019.00 City of Aspen 970-920-5080 100%
Jul-10 09-CC-175 Crystal Valley Trail $ 3,252,141.00 Pitkin County 970-920-5355 100%
Jun-10 09-CC-177 Fruita Hwy 3401mprovments $ 1,335,339.00 CDOT 970-216-1292 100%
Oct-10 10-CC-179 Aspen 2010 Concrete Project $ 390,510.00 City of Aspen 970-920-5080 100%
Nov-10 10-CC-180 Avon Heat Recovery $ 500,000.00 GE Johnson 719-648-7179 100%
Jun-11 10-CC181 East of Aspen Trail II $ 870,000.00 City of Aspen 970-920-5080 90%
Nov-10 10-CC182 Brett Ranch Water Main $ 557,860.00 Eagle River Water District 970-476-7480 100%
Jun-11 10-CC-183 South Canyon Trail $ 689,591.00 Garfield County 970-625-5910 100%
Dec-11 11-CC-184 Aspen Valley Hospital $ 510,000.00 Haselden Constuction 720-341-7936 100%
May-11 11-CC187 GJ Pond Structures $ 376,538.00 CDOT 970-216-1292 100%
Jul-12 11-CC-186 Homestake Bridge $ 100,000.00 Mueller Construction 970-319-9514 95%
Aug-12 12-CC189 City of Aspen Pump Station $ 549,994.00 City of Aspen 970-920-5080 98%
The City of Aspen
CONTRACT FOR CONSTRUCTION City AttorneYIS Office
THIS AGREEMENT, made and entered into on September 10, 2012 by and between the CITY
OF ASPEN, Colorado, hereinafter called the "City", and HEYL CONSTRUCTION, 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: KOCH PARK TO CITY MARKET
DISTRIBUTION SYSTEM, 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:
1. The Contractor shall commence and complete the construction of the Work as fully
described in the Contract Documents.
2. The Contractor shall furnish all of the materials, supplies, tools, equipment, labor and
other services necessary for the construction and completion of the Work described
herein.
3. The Contractor shall commence the work required by the Contract Documents within
seven (7) consecutive calendar days after the date of "Notice to Proceed" and will
complete the same by the date and time indicated in the Special Conditions unless the
time is extended in accordance with appropriate provisions in the 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 TWO HUNDRED NINETY
NINE THOUSAND FOUR HUNDRED FORTY TWO ($299,442.00) DOLLARS or as
shown on the BID proposal.
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
M-971.doc Page 1 **cc1
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: CITY OF ASPEN, COLORADO
By:
Title:
APPROVED AS TO FORM:
By:
City Attorney
ATTESTED BY: CONTRACTOR:
By:
Title.
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 C
On this day of , 20 , before me appeared
to me personally known, who,
being by me first duly worn, did say that s/he is ce 'c z of
and that the seal affixed
to saw 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.
.•
:4-S
OTq
a
N-a',p(j L I C otary Public
Q�jnQ�VQa�e
Address
My commission expires:
cc1-971.doc Page 4 "'cc1
Certification and Supplemental Conditions to Contract for Services -
Conformance with �8-17.5.101, 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
M-971.doc Page 5 "CC1
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: KOCH PARK TO CITY MARKET DISTRIBUTION SYSTEM
Contractor: HEYL CONSTRUCTION
By:
Title:
JPW-saved:8/28/2012-867-M:\city\cityatty\contract\forms\certification-hb-06-1343.doc
CC1-971.doc Page 6 '*CC1
MEMORANDUM
TO: Mayor and City Council
FROM: Jerry Nye, Superintendent of Streets
THRU: Randy Ready, Asst. City Manager
DATE: August 20,2012
RE: Vehicle Purchase Contract Approval 2012-100
REQUEST OF COUNCIL: Staff recommends approval of the contract 2012-100 for the
purchase of one (1) Ford Fusion hybrid sedan for use by the Aspen/Pitkin County Housing
Authority(APCHA).
PREVIOUS COUNCIL ACTION: Approval was received by the City and County Managers
to move forward with this purchase in 2012. The funds to be used are left over from the
appropriated funds for the capital reserve study program that began three years ago; therefore, no
additional subsidy from the City or County is being requested.
BACKGROUND: This purchase is the result of Colorado state bid process in which Glenwood
Springs Ford was able to match the State bid and the new vehicle will be put on a 5-year, 60,000
mile replacement cycle and will be reassessed for replacement at that trade in time.
DISCUSSION: The Aspen/Pitkin Housing Authority has received approval from the City of
Aspen and Pitkin County Managers to purchase an additional vehicle for their use. This vehicle
will be used by the main office for doing site visits to ownership properties to assess capital
improvements and to attend all open houses of deed-restricted units. Also involves compliance
visits to various locations that the APCHA oversees. The Ford Fusion Hybrid will be a good fit
for the APCHA with it being a 4 door passenger vehicle, and the hybrid feature will be effective
for in town and short trips. This vehicle was on the State bid list for this year and Glenwood
Springs will honor the state bid price agreement.
FINANCIALBUDGET IMPACTS: The State bid price for this vehicle is $25,977.00. This
will result in the total contract price of$25,977.00 of which funds are available in the operations
budget; therefore, no additional funds are being requested by the City.
Page 1 of 2
ENVIRONMENTAL IMPACTS: This vehicle will be a hybrid vehicle that will enable it to
produce fewer emissions and use less fuel while running around town which the hybrid vehicles
are designed to be used for.
RECOMMENDED ACTION: Staff recommends council approval of the contracts for 2012-
100, for one Ford Fusion hybrid sedan, for the City of Aspen.
PROPOSED MOTION: "I move to approve Resolution# of 2012
on the consent calendar of Monday, , 2012.
CITY MANAGER COMMENTS:
1
ATTACHMENTS:
Page 2 of 2
RESOLUTION #
(Series of 2012)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND GLENWOOD SPRINGS FORD 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 a
2012 Ford Fusion SE Hybrid Vehicle, between the City of Aspen and Glenwood
Springs Ford, 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 a 2012 Ford Fusion SE Hybrid Vehicle, between the City of Aspen and
Glenwood Springs Ford, 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 10th day of September 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, September 10, 2012.
Kathryn S. Koch, City Clerk
The City of Aspen
CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
City of Aspen Project No.: 2012-100.
AGREEMENT made as of'-'7'h day of August, in the year 2012.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Streets/Fleet
130 South Galena Street Total: $95FIR0.0% 0
Aspen, Colorado 81611 0.-,2 513 `7-7—
Phone: (970) 920-5055
If this Agreement requires the City to pay
And the Vendor: an amount of money in excess of
$25,000.00 it shall not be deemed valid
Glenwood Springs Ford until it has been approved by the City
c/o Bruce Klein
Council of the City of Aspen.
SJ Storm Kim,4 Rd City Council Approval:
Glenwood Springs, Colorado 81601
Phone: 945-2317 Date:August 27, 2012
Resolution No.:
Summary Description of Items to be Purchased:
Purchase on one 2012 Ford Fusion SE hybrid Vehicle
Exhibits appended and made a part of this Agreement:
Fxhibit A: I-ist of supplies, equipment, or materials to be purchased.
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 1080 Power Plant Road, Aspen, Colorado 8 161 l.)
[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. (per manufacturer's d arlanty).
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.
IL 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.
(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 terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
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]
FOR THE CITY OF ASPEN:
ATTEST: By:
City Manager
City Clerk
VENDOR:
C._.S/,y k✓e�o��� � -� ,mod.,�! �,., ���v,
By:
Title
CNGP530 VEHICLE ORDER CONFIRMATION 07/25/12 15:22:23
-`� Dealer: F56483
2013 FUSION Page: 1 of 1
Order No: 1000 Priority: J4 Ord FIN: QC030 Order Type: 5B Price Level: 315
Ord Code: 503A Cust/Flt Name: ASPEN PO Number:
RETAIL DLR INV RETAIL DLR INV
POL FUSN SE HYBRID $27200 $25092. 00
YZ OXFORD WHITE
D ECO CLOTH
Q DUNE
503A EQUIP GRP
99U .2. OL 14 HEV NC NC
44J .ECVT AUTO TRANS NC NC
FRT LICENSE BKT NC NC
425 50 STATE EMISS NC NC
SP FLT ACCT CR (340. 00)
FUEL CHARGE 11.19
DEST AND DELIV 795 795.00
TOTAL BASE AND OPTIONS 27995 25558. 19
TOTAL 27995 25558. 19
*THIS IS NOT AN INVOICE*
F1=Help F2=Return to Order F3/F12=Veh Ord Menu
F4=Submit FS=Add to Library
5099 - PRESS F4 TO SUBMIT QC03172
e,4,
i
•
RESOLUTION NO. g
Series of 2012
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING AN ASSIGNMENT OF A CONTRACT TO BUY AND SELL REAL
ESTATE (LAND) FOR PURCHASE OF THE LINDSAY PARCEL, FROM ALAN
BEYER, ASSIGNOR TO THE CITY OF ASPEN AND THE COUNTY OF PITKIN,
ASSIGNEES, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO
EXECUTE SAID ASSIGNMENT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, on or about July 5, 2012, Alan R. Beyer, as Buyer, and the Lindsay
Family Trust, as Seller, entered into a Contract to Buy and Sell Real Estate (Land) for the
purchase and sale approximately seven acres located on the North West side of Smuggler
Mountain, identified by City Open Space and Trails Board as the Lindsay parcel, the
location of which is identified on Attachment A. The Contract to Buy and Sell Real
Estate (Land) set forth in Attachment B; and
WHEREAS, the Contract states: "This Contract Shall be assignable by Buyer
without Seller's prior written consent;" and
WHEREAS, Alan R. Beyer is willing to assign the contract to the City of Aspen
and the County of Pitkin, who intend to acquire the property in joint ownership pursuant
to a management agreement that will be entered into at a later date, and has prepared an
Assignment of Contract to Buy and Sell Real Estate(Land), set forth in Attachment C;
and
WHEREAS, the City of Aspen Open Space and Trails Board recommends the
acquisition of this parcel.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY
OF ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that Assignment of
Contract to Buy and Sell Real Estate (Land), a copy of which is annexed hereto and
incorporated herein, for purchase of approximately seven acres located on the North West
side of Smuggler Mountain, identified as the Lindsay parcel, which contract for purchase
that is subject of the assignment is presently between the Alan R. Beyer and Lindsay
Family Trust, and does hereby authorize the Mayor or City Manager to execute said
assignment on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the day of , 2012.
Michael C. Ireland, Mayor
1, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council of the
City of Aspen, Colorado, at a meeting held on the day hereinabove stated.
Kathryn S. Koch, City Clerk
PARKS & RECREATION
TO: Mayor and City Council
FROM: Brian Flynn, Open Space and Natural Resource Manager ff
THRU: Stephen Ellsperman, Parks and Open Space Director
Azie-
THRU: Jim True, City Attorney
DATE OF MEMO: August 30, 2012
MEETING DATE: September 10, 2012
RE: Property Acquisition
CC: Steve Barwick, City Manager
Randy Ready, Asst. City Manager
Summary: Since its inception, the City Open Space and Trails Board has identified
Smuggler Mountain as an area of importance and critical for acquisition. The Open Space
and Trails Board have an opportunity to acquire a key parcel located within this area.
Open Space Staff and Board Members are requesting City Council appropriate funds for the
successful acquisition of the Lindsay Parcel. The funding request is in amount of$335,000
which will include the cost for acquisition and the expenses associated with the acquisition.
Previous Council Action: During an Executives Session held August 13, 2012, Staff presented
the details of the Lindsay Acquisition. Representing the Open Space and Trails Board, Staff
requested support for the acquisition which City Council unanimously supported. City Council
felt that the parcel was in line with the Open Space and Trails Board goals for open space
preservation within the Hunter Smuggler Area. City Council requested Staff include the
acquisition agreement on the consent calendar for the September 10, 2012 regular City Council
Agenda.
Background: The Lindsay parcel is approximately seven acres located on the North West
side of Smuggler Mountain. The property is on the board's priority list because it is an in-
1
The City Attorney, Staff and the Third Party have drafted and approved a contract for the
assignment. (Attachment Q
The County Open Space and Trails Board feel strongly that the Lindsay Parcel is a critical
acquisition and has expressed interest in a joint acquisition. The Joint acquisition would provide
an equal payment of$335,000 for the acquisition and the expenses associated with the
acquisition. On August 16, 2012 The Pitkin County Open Space and Trails Board unanimously
approved the acquisition and recommended the acquisition be supported by the Board of County
Commissioners. Pitkin County Open Space and Trails Staff anticipate Board of County
Commissioners support for the acquisition. The first reading is scheduled for September 12,
2012 and the second reading will be held on September 26, 2012. City Council's approval is
contingent on the Board of County Commissioners approving the joint acquisition on September
26, 2012.
Financial Implications: The Parks and Open Space Department is proposing to utilize existing
bonding authority to accomplish the acquisition of these two specific parcels of property
identified as critical open space acquisitions. The proposed 2013 budget provides details on how
these two acquisitions fit into the long range plan of the Parks and Open Space Budget. As
communicated previously to City Council, the existing bonding authority allows City Council to
accomplish important priorities identified by City Council and the Open Space and Trails Board.
The proposed funding scenario utilizes bonding authority to lump critical capital projects with
key open space acquisition parcel identified as high priority to both the City Council and the
Open Space and Trails Board.
Attachment A—Parcel Map for the Lindsay Parcel Acquisition
Attachment B—Purchase Contract
Attachment C— Assignment Contract
3
{ Lindsay Parcel
Open Space
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I CONTRACT TO BUY AND SELL REAL ESTATE
2 (LAND)
3 (Property with No Residences)
4
5 Date:July 5,2012
6 AGREEMENT
7 1. AGREEMENT. Buyer, identified in §2.1, agrees to buy, and Seller, identified in §2.3, agrees to sell, the Property
8 described below on the terms and conditions set forth in this contract(Contract).
9 2. PARTIES AND PROPERTY.
10 2.1. Buyer. Buyer,Alan R Beyer, will take title to the Property described below.
11 2.2. Assignability and Inurement. This Contract Shall be assignable by Buyer without Seller's prior written consent.
12 Except as so restricted, this Contract shall inure to the benefit of and be binding upon the heirs, personal representatives,
13 successors and assigns of the parties.
14 2.3. Seller. Seller, Lindsay Family Trust, is the current owner of the Property described below.
15 2.4. Property. The Property is the following legally described real estate in the County of Pitkin, Colorado:
16 Section: Pitkin County Assessor Parcel No.273707100004,within 7 Township:10 Range:84 Lot 2 Sec 7-10-84,described by
17 Metes and Bounds and comprised of approximately 7.33 Acres;together with the interests, easements,rights,benefits,
18 improvements and attached fixtures appurtenant thereto,mineral rights,and all interest of Seller in vacated streets and alleys
19 adjacent thereto.
20 2.5. Inclusions. The Purchase Price includes the following additional items(Inclusions): any underlying mineral, gas,oil
21 or water rights, which Buyer may possess.
22 3. DATES AND DEADLINES.
Item No. Reference Event Date or Deadline
1 §4.2 Alternative Earnest Money Deadline July 17'h,2012
Title and Association
2 § 7.1 Record Title Deadline August 10",2012
3 § 7.2 Exceptions Request Deadline August 10",2012
4 § 8.1 Record Title Objection Deadline August 10`,2012
5 § 8.2 Off-Record Title Deadline August 10",2012
6 § 8.2 Off-Record Title Objection Deadline Se tember 201h 2012
7 § 8.3 Title Resolution Deadline September 20' ,2012
8 §7.3 Association Documents Deadline NA
9 § 7.3 Association Documents Objection Deadline NA
10 § 8.5 Right of First Refusal Deadline NA
Seller's Property Disclosure
11 § 10.1 Seller's Property Disclosure Deadline August 10',2012
Loan and Credit
12 § 5.1 Loan Application Deadline NA
13 § 5.2 Loan Conditions Deadline NA
14 § 5.3 Buyer's Credit Information Deadline NA
15 § 5.3 Disapproval of Buyer's Credit Information Deadline NA
16 § 5.4 Existing Loan Documents Deadline NA
17 § 5.4 Existing Loan Documents Objection Deadline NA
18 § 5.4 Loan Transfer Approval Deadline NA
Appraisal
19 § 6.2 Appraisal Deadline NA
20 §6.2 Appraisal Objection Deadline NA
Survey
21 § 9.1 Current Survey Deadline Au ust 10' ,2012
22 § 9.2 Current Survey Objection Deadline September 20"',2012
J:::� In`spection and Due Diligence
Attachment B
23 § 10.2 Inspection Objection Deadline September 20th,2012
24 § 10.3 Inspection Resolution Deadline September 20` ,2012
25 § 10.5 Property Insurance Objection Deadline September 20t",2012
26 § 10.6 Due Diligence Documents Delivery Deadline August 10` ,2012
27 § 10.7 Due Diligence Documents Objection Deadline September 20` '2012
28 § 10.8 Environmental Inspection Objection Deadline September 20` 12012
29 § 10.8 ADA Evaluation Objection Deadline September 20th 2012
30 § 11.1 Tenant Estoppel Statements Deadline NA
31 § 11.2 Tenant Estoppel Statements Objection Deadline NA
— Closing and Possession
32 § 12.3 Closing Date October 15`,2012
33 § 17 Possession Date October 1",2012
34 § 17 Possession Time Noon
35 §28 —Acceptance Deadline Date July 16"',20E2
36 §28 Acce tance Deadline Time 6:00 PM
23 Note: Applicability of Terms.
24 Any box, blank or line in this Contract left blank or completed with the abbreviation "N/A", or the word "Deleted" means such
25 provision in Dates and Deadlines(§ 3), including any deadline, is not applicable and the corresponding provision of this Contract
26 to which reference is made is deleted.
27 The abbreviation"MEC"(mutual execution of this Contract)means the date upon which both parties have signed this Contract.
28 4. PURCHASE PRICE AND TERMS.
29 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 $ $650,000.00
2 §4.2 Earnest Money $ $10,000.00
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 $640,000.00
g TOTAL $ $6505000.00 $ $650,000.00
30 4.2. Earnest Money. The Earnest Money set forth in this section, in the form of personal check, shall be payable to and
31 held by Land Title,Aspen, Colorado(Earnest Money Holder),in its trust account, on behalf of both Seller and Buyer. The Earnest
32 Money deposit shall be tendered with this Contract unless the parties mutually agree to an Alternative Earnest Money Deadline
33 (§ 3) for its payment. If Earnest Money Holder is other than the Brokerage Firm identified in § 33 or § 34, Closing Instructions
34 signed by Buyer, Seller and Earnest Money Holder must be obtained on or before delivery of Earnest Money to Earnest Money
35 Holder.The parties authorize delivery of the Earnest Money deposit to the company conducting the Closing(Closing Company), if
36 any, at or before Closing. In the event Earnest Money Holder has agreed to have interest on Earnest Money deposits transferred to
37 a fund established for the purpose of providing affordable housing to Colorado residents, Seller and Buyer acknowledge and agree
38 that any interest accruing on the Earnest Money deposited with the Earnest Money Holder in this transaction shall be transferred to
39 such fund.
40 4.2.1. Alternative Earnest Money Deadline. The deadline for delivering the Earnest Money, if other than at the
41 time of tender of this Contract is as set forth as the Alternative Earnest Money Deadline(§ 3).
42 4.2.2. Return of Earnest Money. If Buyer has a Right to Terminate and timely terminates, Buyer shall be
43 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
44 provided in §24, if the Earnest Money has not already been returned following receipt of a Notice to Terminate, Seller agrees to
45 execute and return to Buyer or Broker working with Buyer, written mutual instructions, i.e., Earnest Money Release form, within
46 three days of Seller's receipt of such form.
47 4.3. Form of Funds; Time of Payment; Funds Available.
48 4.3.1. Good Funds. All amounts payable by the parties at Closing, including any loan proceeds, Cash at Closing
49 and closing costs, shall be in funds that comply with all applicable Colorado laws, including electronic transfer funds, certified
50 check, savings and loan teller's check and cashier's check(Good Funds).
Attachment B
51 4.3.2. Available Funds. All funds required to be paid at Closing or as otherwise agreed in writing between the
52 parties shall be timely paid to allow disbursement by Closing Company at Closing OR SUCH PARTY SHALL BE IN DEFAULT.
53
54 4.5. New Loan.N/A
55
56 TRANSACTION PROVISIONS
57 5. FINANCING CONDITIONS AND OBLIGATIONS. N/A
58 6. APPRAISAL PROVISIONS. NA
59
60 7. TITLE AND ASSOCIATION DOCUMENTS.
61 7.1. Evidence of Title. On or before Record Title Deadline(§ 3), Seller shall cause to be furnished to Buyer, at Seller's
62 expense,a current commitment for owner's title insurance policy(Title Commitment)in an amount equal to the Purchase Price.
63 if title insurance is furnished, Seller shall also deliver to Buyer copies of any abstracts of title covering all or any portion of the
64 Property (Abstract) in Seller's possession. At Seller's expense, Seller shall cause the title insurance policy to be issued and
65 delivered to Buyer as soon as practicable at or after Closing. The title insurance commitment Shall Not commit to delete or insure
66 over the standard exceptions which relate to: (1) parties in possession, (2) unrecorded easements, (3) survey matters, (4)
67 unrecorded mechanics' liens, (5) gap period (effective date of commitment to date deed is recorded), and (6) unpaid taxes,
68 assessments and unredeemed tax sales prior to the year of Closing. Any additional premium expense to obtain this additional
69 coverage shall be paid by Seller
70 Note: The title insurance company may not agree to delete or insure over any or all of the standard exceptions. Buyer shall have
71 the right to review the Title Commitment, its provisions and Title Documents (defined in § 7.2), and if not satisfactory to Buyer,
72 Buyer may exercise Buyer's rights pursuant to § 8.1.
73 7.2. Copies of Exceptions. On or before Record Title Deadline(§3), Seller, at Seller's expense, shall furnish to Buyer
74 (1)copies of any plats, declarations, covenants, conditions and restrictions burdening the Property, and(2) if a Title Commitment
75 is required to be furnished, Copies of any Other Documents(or, if illegible, summaries of such documents)listed in the schedule
76 of exceptions (Exceptions). Seller shall have the obligation to furnish these documents pursuant to this section if requested by
77 Buyer any time on or before Exceptions Request Deadline (§ 3). This requirement shall pertain only to documents as shown of
78 record in the office of the clerk and recorder in the county where the Property is located and any other known documents. The
79 Abstract or Title Commitment, together with any copies or summaries of such documents furnished pursuant to this section,
80 constitute the title documents(collectively, Title Documents).
81 8. RECORD TITLE AND OFF-RECORD TITLE MATTERS.
82 8.1. Record Title Matters. Buyer has the right to review and object to any of the Title Documents (Right to Object,
83 Resolution), as set forth in § 8.3. Buyer's objection may be based on any unsatisfactory form or content of Title Commitment,
84 notwithstanding § 13, or any other unsatisfactory title condition, in Buyer's sole subjective discretion. if Buyer objects to any of
85 the Title Documents, Buyer shall cause Seller to receive Buyer's Notice to Terminate or Notice of Title Objection on or before
86 Record Title Objection Deadline (§ 3). If Title Documents are not received by Buyer, on or before the Record Title Deadline
87 (§3),or if there is an endorsement to the Title Commitment that adds a new Exception to title, a copy of the new Exception to title
88 and the modified Title Commitment shall be delivered to Buyer. Buyer shall cause Seller to receive Buyer's Notice to Terminate
89 or Notice of Title Objection on or before ten days after receipt by Buyer of the following documents: (1) any required Title
90 Document not timely received by Buyer, (2) any change to the Title Documents, or(3) endorsement to the Title Commitment. If
91 Seller receives Buyer's Notice to Terminate or Notice of Title Objection, pursuant to this § 8.1 (Record Title Matters), any title
92 objection by Buyer and this Contract shall be governed by the provisions set forth in § 8.3 (Right to Object, Resolution). If Seller
93 does not receive Buyer's Notice to Terminate or Notice of Title Objection by the applicable deadline specified above, Buyer
94 accepts the condition of title as disclosed by the Title Documents as satisfactory.
95 8.2. Off-Record Title Matters. Seller shall deliver to Buyer, on or before Off-Record Title Deadline (§ 3), true copies
96 of all existing surveys in Seller's possession pertaining to the Property and shall disclose to Buyer all easements, liens (including,
97 without limitation, governmental improvements approved, but not yet installed) or other title matters (including, without
98 limitation, rights of first refusal and options)not shown by public records, of which Seller has actual knowledge. Buyer shall have
99 the right to inspect the Property to investigate if any third party has any right in the Property not shown by public records(such as
100 an unrecorded easement, unrecorded lease, boundary line discrepancy or water rights). Buyer's Notice to Terminate or Notice of
101 Title Objection of any unsatisfactory condition(whether disclosed by Seller or revealed by such inspection,notwithstanding§ 13)5
102 in Buyer's sole subjective discretion, shall be received by Seller on or before Off-Record Title Objection Deadline(§3). If Seller
103 receives Buyer's Notice to Terminate or Notice of Title Objection pursuant to this § 8.2 (Off-Record Title Matters), any title
104 objection by Buyer and this Contract shall be governed by the provisions set forth in § 8.3 (Right to Object, Resolution). If Seller
Attachment B
105 does not receive Buyer's Notice to Terminate or Notice of Title Objection, on or before Off-Record Title Objection Deadline
106 (§ 3),Buyer accepts title subject to such rights,if any,of third parties of which Buyer has actual knowledge.
107 8.3. Right to Object, Resolution. Buyer's right to object to any title matters shall include, but not be limited to those
108 matters set forth in §§ 8.1 (Record Title Matters), 8.2 (Off-Record Title Matters) and 13 (Transfer of Title), in Buyer's sole
109 subjective discretion (collectively, Notice of Title Objection). if Buyer objects to any title matter, on or before the applicable
110 deadline,Buyer shall have the choice to either(1)object to the condition of title,or(2)terminate this Contract.
111 8.3.1. Title Resolution. If Seller receives Buyer's Notice of Title Objection, as provided in § 8.1 (Record Title
112 Matters) or § 8.2 (Off-Record Title Matters), on or before the applicable deadline, and if Buyer and Seller have not agreed to a
113 written settlement thereof on or before Title Resolution Deadline (§ 3), this Contract shall terminate on the expiration of Title
114 Resolution Deadline (§ 3), unless Seller receives Buyer's written withdrawal of Buyer's Notice of Title Objection (i.e., Buyer's
115 written notice to waive objection to such items and waives the Right to Terminate for that reason),on or before expiration of Title
116 Resolution Deadline(§3).
117 8.3.2. Right to Terminate—Title Objection. Buyer shall have the Right to Terminate under §25.1, on or before
118 the applicable deadline,based on any unsatisfactory title matter,in Buyer's sole subjective discretion.
119 8.4. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION
120 INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE
121 PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK
122 FOR INCREASED MILL LEVIES AND TAX TO SUPPORT THE SERVICING OF SUCH DEBT WHERE
123 CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH
124 INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE THE
125 SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY CONTACTING THE COUNTY
126 TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE PROPERTY, AND BY OBTAINING
127 FURTHER INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY CLERK AND
128 RECORDER,OR THE COUNTY ASSESSOR.
129 Buyer shall have the Right to Terminate under §25.1, on or before Off-Record Title Objection Deadline (§ 3), based on
130 any unsatisfactory effect of the Property being located within a special taxing district,in Buyer's sole subjective discretion.
131 8.5. Right of First Refusal or Contract Approval. NA
132 8.6. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed
133 carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership and use of the Property,
134 including, without limitation, boundary lines and encroachments, area, zoning, unrecorded easements and claims of easements,
135 leases and other unrecorded agreements, and various laws and governmental regulations concerning land use, development and
136 environmental matters. The surface estate may be owned separately from the underlying mineral estate, and transfer of the
137 surface estate does not necessarily include transfer of the mineral rights or water rights.Third parties may hold interests in
138 oil, gas, other minerals, geothermal energy or water on or under the Property, which interests may give them rights to
139 enter and use the Property. Such matters may be excluded from or not covered by the title insurance policy. Buyer is advised to
140 timely consult legal counsel with respect to all such matters as there are strict time limits provided in this Contract [e.g., Record
141 Title Objection Deadline(§ 3)and Off-Record Matters Objection Deadline(§ 3)].
142 9. CURRENT SURVEY REVIEW.
143 9.1. Current Survey Conditions. If the box in § 9.1.1 or § 9.1.2 is checked, Buyer, the issuer of the Title Commitment
144 or the provider of the opinion of title if an abstract, shall receive a Current Survey, i.e., Improvement Location Certificate,
145 Improvement Survey Plat or other form of survey set forth in § 9.1.2 (collectively, Current Survey), on or before Current Survey
146 Deadline(§ 3).The Current Survey shall be certified by the surveyor to all those who are to receive the Current Survey.
147 9.1.1. Improvement Location Certificate. If the box in this § 9.1.1 is checked, Buyer shall order or provide, and
148 pay,on or before Closing,the cost of an Improvement Location Certificate.
149 ® 9.1.2. Other Survey. If the box in this § 9.1.2 is checked, a Current Survey, other than an Improvement Location
150 Certificate, shall be an® Improvement Survey Plat ❑ . The parties agree that payment
151 of the cost of the Current Survey and obligation to order or provide the Current Survey shall be as follows: by Buyer.
152
153 9.2. Survey Objection. Buyer shall have the right to review and object to the Current Survey. Buyer shall have the Right
154 to Terminate under §25.1, on or before the Current Survey Objection Deadline (§3), if the Current Survey is not timely
155 received by Buyer or based on any unsatisfactory matter with the Current Survey,notwithstanding§ 8.2 or§ 13.
Attachment B
156 1 DISCLOSURE,INSPECTION AND DUE DILIGENCE
157 10. PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY, DUE DILIGENCE AND SOURCE
158 OF WATER.
159 10.1. Seller's Property Disclosure Deadline. On or before Seller's Property Disclosure Deadline(§3), Seller agrees to
160 deliver to Buyer the most current version of the applicable Colorado Real Estate Commission's Seller's Property Disclosure form
161 completed by Seller to Seller's actual knowledge, current as of the date of this Contract.
162 10.2. Inspection Objection Deadline. Unless otherwise provided in this Contract, Buyer acknowledges that Seller is
163 conveying the Property to Buyer in an"as is"condition, "where is"and"with all faults". Seller shall disclose to Buyer, in writing,
164 any latent defects actually known by Seller. Buyer, acting in good faith, shall have the right to have inspections (by one or more
165 third parties, personally or both) of the Property and Inclusions (Inspection), at Buyer's expense. If(1) the physical condition of
166 the Property, including,but not limited to, the roof, walls, structural integrity of the Property,the electrical,plumbing, HVAC and
167 other mechanical systems of the Property, (2) the physical condition of the Inclusions, (3) service to the Property (including
168 utilities and communication services), systems and components of the Property, e.g. heating and plumbing, (4) any proposed or
169 existing transportation project,road, street or highway,or(5)any other activity, odor or noise(whether on or off the Property)and
170 its effect or expected effect on the Property or its occupants is unsatisfactory, in Buyer's sole subjective discretion,Buyer shall, on
171 or before Inspection Objection Deadline(§ 3):
172 10.2.1. Notice to Terminate. Notify Seller in writing that this Contract is terminated; or
173 10.2.2. Inspection Objection. Deliver to Seller a written description of any unsatisfactory physical condition that
174 Buyer requires Seller to correct.
175 Buyer shall have the Right to Terminate under §25.1, on or before Inspection Objection Deadline (§ 3), based on any
176 unsatisfactory physical condition of the Property or Inclusions,in Buyer's sole subjective discretion.
177 10.3. Inspection Resolution Deadline. if an Inspection Objection is received by Seller, on or before Inspection
178 Objection Deadline (§3), and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Inspection
179 Resolution Deadline(§3),this Contract shall terminate on Inspection Resolution Deadline(§3), unless Seller receives Buyer's
180 written withdrawal of the Inspection Objection before such termination, i.e., on or before expiration of Inspection Resolution
181 Deadline(§3).
182 10.4. Damage, Liens and Indemnity. Buyer, except as otherwise provided in this Contract or other written agreement
183 between the parties,is responsible for payment for all inspections,tests, surveys, engineering reports, or any other work performed
184 at Buyer's request(Work)and shall pay for any damage that occurs to the Property and Inclusions as a result of such Work. Buyer
185 shall not permit claims or liens of any kind against the Property for Work performed on the Property at Buyer's request. Buyer
186 agrees to indemnify, protect and hold Seller harmless from and against any liability, damage, cost or expense incurred by Seller
187 and caused by any such Work, claim, or lien. This indemnity includes Seller's right to recover all costs and expenses incurred by
188 Seller to defend against any such liability, damage, cost or expense, or to enforce this section, including Seller's reasonable
189 attorney fees,legal fees and expenses. The provisions of this section shall survive the termination of this Contract.
190 10.5. Insurability. Buyer shall have the right to review and object to the availability, terms and conditions of and
191 premium for property insurance(Property Insurance). Buyer shall have the Right to Terminate under§25.1,on or before Property
192 Insurance Objection Deadline(§3), based on any unsatisfactory provision of the Property Insurance, in Buyer's sole subjective
193 discretion.
194 10.6. Due Diligence Documents. Seller agrees to deliver copies of the following documents and information pertaining to
195 the Property(Due Diligence Documents) to Buyer on or before Due Diligence Documents Delivery Deadline (§ 3)to the extent
196 such Due Diligence Documents exist and are in Seller's possession:
197 10.6.1. All contracts relating to the operation, maintenance and management of the Property;
198 10.6.2. Property tax bills for the last 5 years;
199 10.6.3. As-built construction plans to the Property and the tenant improvements, including architectural, electrical,
200 mechanical,and structural systems;engineering reports; and permanent Certificates of Occupancy,to the extent now available;
201 10.6.4. A list of all Inclusions to be conveyed to Buyer;
202 10.6.5. Operating statements for the past 5 years;
203 10.6.6. A rent roll accurate and correct to the date of this Contract;
204 10.6.7. All current leases, including any amendments or other occupancy agreements, pertaining to the Property
205 (Leases);
206 10.6.8. A schedule of any tenant improvement work Seller is obligated to complete but has not yet completed and
207 capital improvement work either scheduled or in process on the date of this Contract;
208 10.6.9. All insurance policies pertaining to the Property and copies of any claims which have been made for the past
209 3 years;
210 10.6.10. Soils reports, Surveys and engineering reports or data pertaining to the Property (if not delivered earlier
211 under§ 8.2);
Attachment B
212 10.6.11. Any and all existing documentation and reports regarding Phase I and I1 environmental reports, letters, test
213 results,advisories,and similar documents respective to the existence or nonexistence of asbestos, PCB transformers, or other toxic
214 hazardous or contaminated substances, and/or underground storage tanks and/or radon gas. If no reports are in Seller's possession
215 or known to Seller, Seller shall warrant that no such reports are in Seller's possession or known to Seller;
216 10.6.12. Any Americans with Disabilities Act reports, studies or surveys concerning the compliance of the Property
217 with said Act;
218 10.6.13. All permits, licenses and other building or use authorizations issued by any governmental authority with
219 jurisdiction over the Property and written notice of any violation of any such permits,licenses or use authorizations, if any;and
220 10.6.14. Other Documents: any additional documents that may pertain to the property.
221 10.7. Due Diligence Documents Conditions. Buyer shall have the right to review and object to Due Diligence
222 Documents, zoning and any use restrictions imposed by any governmental agency with jurisdiction over the Property(Zoning), in
223 Buyer's sole subjective discretion, or Seller's failure to deliver to Buyer all Due Diligence Documents. Buyer shall also have the
224 unilateral right to waive any condition herein.
225 10.7.1. Due Diligence Documents Objection. Buyer shall have the Right to Terminate under §25.1, on or before
226 Due Diligence Documents Objection Deadline (§ 3), based on any unsatisfactory matter with the Due Diligence Documents in
227 Buyer's sole subjective discretion. If,however, Due Diligence Documents are not timely delivered under § 10.6, or if Seller fails to
228 deliver all Due Diligence Documents to Buyer,then Buyer shall have the Right to Terminate under § 25.1 on or before the earlier
229 of ten days after Due Diligence Documents Objection Deadline(§ 3)or Closing.
230 10.7.2. Zoning. Buyer shall have the Right to Terminate under § 25.1, on or before Due Diligence Documents
231 Objection Deadline(§3),based on any unsatisfactory zoning, in Buyer's sole subjective discretion.
232 10.7.3. Source of Potable Water (Residential Land and Residential Improvements Only). Buyer
233 ® Does Not acknowledge receipt of a copy of Seller's Property Disclosure or Source of Water Addendum disclosing the source
234 of potable water for the Property.Buyer®Does Not acknowledge receipt of a copy of the current well permit.
235 ❑There is No Well.
236 Note to Buyer: SOME WATER PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE GROUND
237 WATER. YOU MAY WISH TO CONTACT YOUR PROVIDER(OR INVESTIGATE THE DESCRIBED SOURCE) TO
238 DETERMINE THE LONG-TERM SUFFICIENCY OF THE PROVIDER'S WATER SUPPLIES.
239 10.8. Due Diligence—Environmental, ADA. Buyer shall have the right to obtain environmental inspections of the
240 Property including Phase I and Phase 11 Environmental Site Assessments,as applicable. ® Buyer may order or provide ® Phase
241 1 Environmental Site Assessment, ® Phase II Environmental Site Assessment (compliant with ASTM E1527-05 standard
242 practices for Environmental Site Assessments)and/or ❑ , at the expense of
243 ® Buyer (Environmental Inspection). In addition, Buyer may also conduct an evaluation whether the Property complies with the
244 Americans with Disabilities Act(ADA Evaluation). All such inspections and evaluations shall be conducted at such times as are
245 mutually agreeable to minimize the interruption of Seller's and any Seller's tenants'business uses of the Property,if any.
246 If Buyer's Phase I Environmental Site Assessment recommends a Phase II Environmental Site Assessment, the
247 Environmental Inspection Objection Deadline (§ 3) shall be extended by 30 days (Extended Environmental Inspection
248 Objection Deadline) and if such Extended Environmental Inspection Objection Deadline extends beyond the Closing Date (§ 3),
249 the Closing Date(§3)shall be extended a like period of time.
250 Buyer shall have the Right to Terminate under §25.1,on or before Environmental Inspection Objection Deadline(§3), or
251 if applicable the Extended Environmental Inspection Objection Deadline, based on any unsatisfactory results of Environmental
252 Inspection, in Buyer's sole subjective discretion.
253 Buyer shall have the Right to Terminate under §25.1, on or before ADA Evaluation Objection Deadline (§ 3), based on
254 any unsatisfactory ADA Evaluation,in Buyer's sole subjective discretion.
255 10.9. Existing Leases; Modification of Existing Leases; New Leases. Seller states that none of the Leases to be assigned
256 to the Buyer at the time of Closing contain any rent concessions, rent reductions or rent abatements except as disclosed in the
257 Lease or other writing received by Buyer. Seller shall not amend, alter, modify, extend or cancel any of the Leases nor shall Seller
258 enter into any new leases affecting the Property without the prior written consent of Buyer, which consent shall not be
259 unreasonably withheld or delayed.
260 11. TENANT ESTOPPEL STATEMENTS.NA
261 12. CLOSING DOCUMENTS,INSTRUCTIONS AND CLOSING.
262 12.1. Closing Documents and Closing Information. Seller and Buyer shall cooperate with the Closing Company to
263 enable the Closing Company to prepare and deliver documents required for Closing to Buyer and Seller and their designees. If
264 Buyer is obtaining a new loan to purchase the Property, Buyer acknowledges Buyer's lender shall be required to provide the
265 Closing Company in a timely manner all required loan documents and financial information concerning Buyer's new loan. Buyer
266 and Seller will furnish any additional information and documents required by Closing Company that will be necessary to complete
267 this transaction.Buyer and Seller shall sign and complete all customary or reasonably required documents at or before Closing.
Attachment B
268 12.2. Closing Instructions. Buyer and Seller agree to execute the Colorado Real Estate Commission's Closing Instructions.
269 Such Closing Instructions ® Are Not executed with this Contract. Upon mutual execution, ® Seller ❑ Buyer shall deliver
270 such Closing Instructions to the Closing Company.
271 12.3. Closing. Delivery of deed from Seller to Buyer shall be at closing (Closing). Closing shall be on the date specified
272 as the Closing Date (§ 3) or by mutual agreement at an earlier date. The hour and place of Closing shall be as designated by
273 Escrow Agent.
274 12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs, quality, and extent of service vary
275 between different settlement service providers(e.g., attorneys, lenders, inspectors and title companies).
276 13. TRANSFER OF TITLE. Subject to tender of payment at Closing as required herein and compliance by Buyer with the
277 other terms and provisions hereof, Seller shall execute and deliver a good and sufficient warranty deed to Buyer, at Closing,
278 conveying the Property free and clear of all taxes except the general taxes for the year of Closing. Except as provided herein, title
279 shall be conveyed free and clear of all liens, including any governmental liens for special improvements installed as of the date of
280 Buyer's signature hereon,whether assessed or not. Title shall be conveyed subject to:
281 13.1. Those specific Exceptions described by reference to recorded documents as reflected in the Title Documents
282 accepted by Buyer in accordance with Record Title Matters(§ 8.1),
283 13.2. N/A,
284 13.3. N/A,
285 13.4. N/A, and
286 13.5. Other N/A
287 PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be paid at or before Closing from the
288 proceeds of this transaction or from any other source.
289 15. CLOSING COSTS,CLOSING FEE,ASSOCIATION FEES AND TAXES.
290 15.1. Closing Costs. Buyer and Seller shall pay, in Good Funds, their respective closing costs and all other items required
291 to be paid at Closing,except as otherwise provided herein.
292 15.2. Closing Services Fee. The fee for real estate closing services shall be paid at Closing One-Half by Buyer and One-
293 Half by Seller.
294 15.3. Status Letter and Transfer Fees. Any fees incident to the issuance of Association's statement of assessments
295 (Status Letter) shall be paid by ❑ Buyer ❑ Seller ❑ One-Half by Buyer and One-Half by Seller ® None. Any transfer
296 fees assessed by the Association including, but not limited to, any record change fee, regardless of name or title of such fee
297 (Association's Transfer Fee)shall be paid by ❑ Buyer ❑ Seller ❑One-Half by Buyer and One-Half by Seller ®None.
298 15.4. Local Transfer Tax. ❑ The Local Transfer Tax of % of the Purchase Price shall be paid at Closing
299 by ❑ Buyer ❑ Seller ❑ One-Half by Buyer and One-Half by Seller ® None.
300 15.5. Private Transfer Fee. Private transfer fees and other fees due to a transfer of the Property,payable at Closing, such
301 as community association fees, developer fees and foundation fees, shall be paid at Closing by ❑ Buyer ❑ Seller ❑One-Half
302 by Buyer and One-Half by Seller ® None.
303 15.6. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction shall be paid when due by
304 ❑ Buyer ❑ Seller ❑One-Half by Buyer and One-Half by Seller ®None.
305 16. PRORATIONS. The following shall be prorated to Closing Date(§ 3), except as otherwise provided:
306 16.1. Taxes. Personal property taxes, if any, special taxing district assessments,if any, and general real estate taxes for the
307 year of Closing,based on ®Taxes for the Calendar Year Immediately Preceding.
308 16.2. Rents. NA
309 16.3. Association Assessments. NA
310 16.4. Other Prorations. NA
311 16.5. Final Settlement. Unless otherwise agreed in writing,these prorations shall be final. - - - -
312 17. POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date (§ 3) at Possession Time (§ 3),
313 subject to the following Leases or tenancies: none
314
315 If Seller, after Closing, fails to deliver possession as specified, Seller shall be subject to eviction and shall be additionally
316 liable to Buyer for payment of$500.00 per day (or any part of a day notwithstanding § 18.1) from Possession Date (§3) and
317 Possession Time(§ 3)until possession is delivered.
318
319
320
Attachment B
321 GENERAL PROVISIONS
322 18. DAY; COMPUTATION OF PERIOD OF DAYS,DEADLINE.
323 18.1. Day. As used in this Contract, the term "day" shall mean the entire day ending at 11:59 p.m., United States
324 Mountain Time(Standard or Daylight Savings as applicable).
325 18.2. Computation of Period of Days, Deadline. In computing a period of days, when the ending date is not specified,
326 the first day is excluded and the last day is included. If any deadline falls on a Saturday, Sunday or federal or Colorado state
327 holiday(Holiday), such deadline shall be extended to the next day that is not a Saturday, Sunday or Holiday
328 19. CAUSES OF LOSS, INSURANCE; CONDITION OF, DAMAGE TO PROPERTY AND INCLUSIONS AND
329 WALK-THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both shall be delivered in the
330 condition existing as of the date of this Contract,ordinary wear and tear excepted.
331 19.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other perils or causes of
332 loss prior to Closing in an amount of not more than ten percent of the total Purchase Price (Property Damage), Seller shall be
333 obligated to repair the same before Closing Date(§ 3). In the event such damage is not repaired within said time or if the damage
334 exceeds such sum, this Contract may be terminated at the option of Buyer. Buyer shall have the Right to Terminate under §25.1,
335 on or before Closing Date (§3), based on any Property Damage not repaired before Closing Date (§ 3). Should Buyer elect to
336 carry out this Contract despite such Property Damage, Buyer shall be entitled to a credit at Closing for all insurance proceeds that
337 were received by Seller (but not the Association, if any) resulting from such damage to the Property and Inclusions, plus the
338 amount of any deductible provided for in such insurance policy. Such credit shall not exceed the Purchase Price. In the event Seller
339 has not received such insurance proceeds prior to Closing,the parties may agree to extend the Closing Date(§ 3)or, at the option
340 of Buyer, Seller shall assign such proceeds at Closing, plus credit Buyer the amount of any deductible provided for in such
341 insurance policy,but not to exceed the total Purchase Price.
342 19.2. Damage,Inclusions and Services.NA
343 19.3. 'Condemnation. In the event Seller receives actual notice prior to Closing that a pending condemnation action may
344 result in a taking of all or part of the Property or Inclusions, Seller shall promptly notify Buyer, in writing, of such condemnation
345 action. Buyer shall have the Right to Terminate under§25.1,on or before Closing Date(§ 3),based on such condemnation action,
346 in Buyer's sole subjective discretion. Should Buyer elect to consummate this Contract despite such diminution of value to the
347 Property and Inclusions, Buyer shall be entitled to a credit at Closing for all condemnation proceeds awarded to Seller for the
348 diminution in the value of the Property or Inclusions but such credit shall not include relocation benefits or expenses,or exceed the
349 Purchase Price.
350 19.4. Walk-Through and Verification of Condition. Buyer, upon reasonable notice, shall have the right to walk through
351 the Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this Contract.
352 19.5. Risk of Loss—Growing Crops.NA
353 20. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this document, Buyer and Seller acknowledge
354 that this document has important legal consequences and have considered the examination of title and consultation with legal and
355 tax or other counsel before signing this Contract.
356 21. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence hereof. If any note or check received as
357 Earnest Money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any obligation
358 hereunder is not performed or waived as herein provided,there shall be the following remedies:
359 21.1. If Buyer is in Default:
360 ❑ 21.1.1. Specific Performance. Seller may elect to treat this Contract as canceled,in which case all Earnest Money
361 (whether or not paid by Buyer) shall be paid to Seller and retained by Seller; and Seller may recover such damages as may be
362 proper; or Seller may elect to treat this Contract as being in full force and effect and Seller shall have the right to specific
363 performance or damages,or both.
364 21.1.2. Liquidated Damages, Applicable. This §21.1.2 shall apply unless the box in 6 21.1.1. is checked. All
365 Earnest Money (whether or not paid by Buyer) shall be paid to Seller, and retained by Seller. Both parties shall thereafter be
366 released from all obligations hereunder. It is agreed that the Earnest Money specified in §4.1 is LIQUIDATED DAMAGES, and
367 not a penalty, which amount the parties agree is fair and reasonable and (except as provided in §§ 10.4, 22, 23 and 24), said
368 payment of Earnest Money shall be SELLER'S SOLE AND ONLY REMEDY for Buyer's failure to perform the obligations of
369 this Contract. Seller expressly waives the remedies of specific performance and additional damages.
370 21.2. If Seller is in Default: Buyer may elect to treat this Contract as canceled,in which case all Earnest Money received
371 hereunder shall be returned and Buyer may recover such damages as may be proper, or Buyer may elect to treat this Contract as
372 being in full force and effect and Buyer shall have the right to specific performance or damages,or both.
Attachment B
373 22. LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any arbitration
374 or litigation relating to this Contract,prior to or after Closing Date(§3),the arbitrator or court shall award to the prevailing party
375 all reasonable costs and expenses, including attorney fees, legal fees and expenses.
376 23. MEDIATION.N/A
377 24. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder shall release the Earnest
378 Money as directed by written mutual instructions, signed by both Buyer and Seller. In the event of any controversy regarding the
379 Earnest Money(notwithstanding any termination of this Contract), Earnest Money Holder shall not be required to take any action.
380 Earnest Money Holder, at its option and sole subjective discretion, may (l) await any proceeding, (2) interplead all parties and
381 deposit Earnest Money into a court of competent jurisdiction and shall recover court costs and reasonable attorney and legal fees,
382 or (3) provide notice to Buyer and Seller that unless Earnest Money Holder receives a copy of the Summons and Complaint or
383 Claim(between Buyer and Seller)containing the case number of the lawsuit(Lawsuit)within one hundred twenty days of Earnest
384 Money Holder's notice to the parties,Earnest Money Holder shall be authorized to return the Earnest Money to Buyer.In the event
385 Earnest Money Holder does receive a copy of the Lawsuit, and has not interpled the monies at the time of any Order, Earnest
386 Money Holder shall disburse the Earnest Money pursuant to the Order of the Court. The provisions of this §24 apply only if the
387 Earnest Money Holder is one of the Brokerage Firms named in § 33 or§34.
388 25. TERMINATION.
389 25.1. Right to Terminate. If a party has a right to terminate, as provided in this Contract (Right to Terminate), the
390 termination shall be effective upon the other party's receipt of a written notice to terminate (Notice to Terminate), provided such
391 written notice was received on or before the applicable deadline specified in this Contract. If the Notice to Terminate is not
392 received on or before the specified deadline, the party with the Right to Terminate shall have accepted the specified matter,
393 document or condition as satisfactory and waived the Right to Terminate under such provision.
394 25.2. Effect of Termination. In the event this Contract is terminated, all Earnest Money received hereunder shall be
395 returned and the parties shall be relieved of all obligations hereunder,subject to §§ 10.4,22 and 24.
396 26. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL. This Contract, its exhibits and specified addenda, constitute
397 the entire agreement between the parties relating to the subject hereof, and any prior agreements pertaining thereto, whether oral or
398 written, have been merged and integrated into this Contract. No subsequent modification of any of the terms of this Contract shall
399 be valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any obligation in this Contract
400 that,by its terms,is intended to be performed after termination or Closing shall survive the same.
401 27. NOTICE,DELIVERY,AND CHOICE OF LAW.
402 27.1. Physical Delivery. All notices must be in writing, except as provided in §27.2. Any document, including a signed
403 document or notice, from or on behalf of Seller, and delivered to Buyer shall be effective when physically received by Buyer, any
404 signatory on behalf of Buyer, any named individual of Buyer, any representative of Buyer, or Brokerage Firm of Broker working
405 with Buyer and except as provided in §27.2. Any document, including a signed document or notice, from or on behalf of Buyer,
406 and delivered to Seller shall be effective when physically received by Seller, any signatory on behalf of Seller, any named
407 individual of Seller, any representative of Seller, or Brokerage Firm of Broker working with Seller (except for delivery, after
408 Closing,of the notice requesting mediation described in §23)and except as provided in §27.2.
409 27.2. Electronic Delivery. As an alternative to physical delivery, any document, including any signed document or
410 written notice, may be delivered in electronic form only by the following indicated methods: ® Facsimile ® Email
411 ® Internet ❑ No Electronic Delivery. If the box "No Electronic Delivery" is checked, this § 27.2 shall not be applicable and
412 §27.1 shall govern notice and delivery. Documents with original signatures shall be provided upon request of any party.
413 27.3. Choice of Law. This Contract and all disputes arising hereunder shall be governed by and construed in accordance
414 with the laws of the State of Colorado that would be applicable to Colorado residents who sign a contract in Colorado for property
415 located in Colorado.
416 28. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal shall expire unless accepted in writing, by Buyer and
417 Seller, as evidenced by their signatures below, and the offering party receives notice of such acceptance pursuant to §27 on or
418 before Acceptance Deadline Date(§ 3)and Acceptance Deadline Time(§ 3). If accepted,this document shall become a contract
419 between Seller and Buyer. A copy of this document may be executed by each party, separately, and when each party has executed
420 a copy thereof, such copies taken together shall be deemed to be a full and complete contract between the parties.
421 29. GOOD FAITH. Buyer and Seller acknowledge that each party has an obligation to act in good faith, including but not
422 limited to, exercising the rights and obligations set forth in the provisions of Financing Conditions and Obligations (§ 5),
423 Record Title and Off-Record Title Matters (§ 8), Current Survey Review (§ 9) and Property Disclosure, Inspection,
424 Indemnity,Insurability,Due Diligence and Source of Water(§ 10).
Attachment B
425 ADDITIONAL PROVISIONS AND ATTACHMENTS
426
427 30. ADDITIONAL PROVISIONS. Right to Object;Cure. Sections 9.2& 10.7.1 of the Contract are deleted in
428 their entirety. Section 8.3 of the Contract is deleted in its entirety and replaced by the following: Buyer's right to object shall
429 include objection to any matter whatsoever concerning or related to the Property in any way and shall include,but shall not be
430 limited to,those matters set forth in Sections 7, 8;9, 10 and 13 of the Contract. On or before 6:00 PM on the Title Objection
431 Deadline,Buyer may advise Seller, in writing,either that Buyer no longer wishes to purchase the Property or that there are
432 unsatisfactory conditions concerning the Property. If Buyer advises Seller that Buyer no longer wishes to purchase the Property,
433 then this Agreement shall terminate, and Buyer's Earnest Money and any interest earned thereon shall be promptly returned to
434 Buyer. If Buyer advises Seller that there are unsatisfactory conditions concerning the Property,then Buyer shall provide
435 a detailed description of such unsatisfactory conditions in such notice and Seller shall use good faith efforts to correct such
436 unsatisfactory conditions. On or before the Inspection Resolution Deadline,Buyer may, in Buyer's sole discretion,either waive
437 Buyer's objections to unsatisfactory conditions or terminate the Agreement and receive a full refund of all Earnest Money and any
438 interest earned thereon. If Buyer shall not terminate the Agreement by written notice sent to Seller on or before the Inspection
439 Resolution Deadline pursuant to the preceding sentence,then Buyer shall be deemed to have waived its prior objections to
440 unsatisfactory conditions and the Agreement shall remain in full force and effect.
441
442 Memorial: A permanent memorial bench and plaque(or similar monument)shall be placed along a proposed trail through or near
443 the property at a pleasant vantage point to honor Walter Sarad and connect the Lindsay family to Aspen.
444 31. ATTACHMENTS. NA
445 SIGNATURES
446
Buyer's Name: Alan R Beyer Buyer's Name:
Buyer's Signature Date July 12 Buyer's Signature Date
`n 2012
Address: 024 Ardmore Drive Address:
Aspen,Colorado 81611
Phone No.: (970)948-3039 Phone No.:
Fax No.: (970)925-8392 Fax No.:
Electronic Address: abd@sopris.net Electronic Address:
447 [NOTE: If this offer is being countered or rejected,do not sign this document.Refer to§321
Seller's Name: Seller's Name:
Seller's Signature Date Seller's Signature Date
Address: Address:
Phone No.: Phone No.:
Fax No.: Fax No.:
Electronic Address: Electronic Address:
448
449 32. COUNTER; REJECTION. This offer is ❑ Countered ❑ Rejected.
450 Initials only of party(Buyer or Seller)who countered or rejected offer
451 END OF CONTRACT TO BUY AND SELL REAL ESTATE
Attachment B
ASSIGNMENT OF CONTRACT TO BUY AND SELL REAL ESTATE (LAND)
THIS ASSIGNMENT OF CONTRACT TO BUY AND SELL REAL ESTATE (LAND)
made and entered into this day of , 2012 by and between Alan R. Beyer
("Assignor") and the City of Aspen ("City"), 130 South Galena Street, Aspen, Colorado 81611
and the County of Pitkin ("County"), 530 E. Main Street, Aspen, Colorado 81611 ( collectively
referred to as the "Assignees"), concerns and specifies the following:
WITNESSETH:
WHEREAS, on or about July 5, 2012, Assignor, as Buyer, and the Lindsay Family Trust,
as Seller, entered into a Contract to Buy and Sell Real Estate (Land) (hereinafter the "Contract")
for the purchase and sale of the following described real property (hereinafter the "Property"):
Pitkin County Assessor Parcel No. 273707100004, within 7 Township: 10 Range:
84 Lot 2 Sec 7-10-84, described by Metes and Bounds and comprised of
approximately 7.33 Acres; together with the interests, easements, rights, benefits,
improvements and attached fixtures appurtenant thereto, mineral rights, and all
interests of Seller in vacated streets and alleys adjacent thereto (the "Property").
WHEREAS, the Contract states: "This Contract Shall be assignable by Buyer without
Seller's prior written consent;" and
WHEREAS the Assignor desires to assign the Contract to Assignees under the terms and
conditions of this Assignment; and
WHEREAS the Assignees desire to accept this Assignment and purchase the Property on
the terms of the Contract.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained herein,
the parties agree as follows:
1. Effective upon the payment to Assignor described in paragraph 2 below, Assignor hereby
transfers and assigns to Assignees all of the Assignor's rights and interests in the Contract,
including all of Assignor's rights in the Earnest Money paid under the Contract, and Assignee
agrees to assume all obligations of Assignor under the Contract.
2. On or before October 1, 2012, Assignees shall pay to Assignor a total of$10,000.00 as
reimbursement for the Earnest Money paid by Assignor under the Contract.
Attachment C
Assignment
Page 2
3. On or before October 1, 2012, Assignees shall pay to Assignor an amount to reimburse
Assignor all reasonable fees, expenses and costs incurred by Assignor, up to a maximum of
$20,000, for due diligence and investigations performed by Assignor related to the Contract and
to the Property which is the subject of the Contract.
4. The Property shall be purchased with Open Space funds or deeded in an appropriate
manner to ensure the use is limited to open space,trails and recreational purposes.
5. If both of the governing bodies of the Assignees shall fail to approve this Assignment on
or before September 27, 2012, this Assignment shall be void and unenforceable and Assignor
shall have the right to purchase the Property pursuant to the Contract; provided, however, that if
one or both of the Assignees approve this Assignment and agree to assume the Contract and be
fully responsible for purchasing the Property (either individually or together with the other
Assignee), then this Assignment shall remain in full force and effect.
6. The Contract shall not be further assigned by either Assignee unless approved in writing
by Assignor.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment of Contract
to Buy and Sell Real Estate (Land) as of the day and year above first written.
ASSIGNOR:
Alan R. Beyer
Alan R. Beyer
ASSIGNEES:
THE CITY OF ASPEN: THE COUNTY OF PITKIN
By: By:
a .
MEMORANDUM
TO: City of Aspen Mayor and City Council
THRU: Chris Bendon, Community Development Director
FROM: Jessica Garrow, Long Range Planner
RE: Second Reading of Ordinance 21, Series of 2012
Hume Lot Split Amendment, Amendment to Ordinance 15, Series of 1992
MEETING DATE: September 10, 2012 (PH)
PPLICANT: SUMMARY:
FH Holdings, LP The Applicant requests an amendment to Ordinance 15,
Sereis of 1992 which created the Hume Lot Split. The
REPRESENTATIVE: applicant requests to amend the Ordinance to reflect
Alan Richman urrent language in the land use code in regards to
affordable housing mitigation.
OCATION:
Lot 2, Hume Lot Split STAFF RECOMMENDATION:
Staff recommends approval of the request.
CURRENT ZONING&USE
-6, vacant lot
PROPOSED LAND USE:
Single-family home
LAND USE REQUESTS AND REVIEW PROCEDURES:
The Applicant is requesting the following land use approvals:
• Subdivision Amendment to change the conditions outlined in Ordinance 15, Series of
1992 pursuant to Land Use Code Section 26.480.080.13 (City Council is the final review
authority).
PROJECT BACKGROUND:
The Applicant has requested an "Other Amendment" to the subdivision approval granted for the
Hume Lot Split through Ordinance 15, Series of 1992. A copy of the original Ordinance is
included in the Application, attached as Exhibit C. In 1992, the property was divided into two
(2) lots: Lot 1, which includes a historic home, and Lot 2 which is vacant. The approval allowed
for the development of a new single family home on Lot 2, and required an Accessory Dwelling
Unit (ADU) to be constructed as mitigation when a new home was constructed. This was the
only housing mitigation option outlined in the 1992 code, which is why it was included as a
condition. Lot 2 has remained undeveloped.
Page 1 of 3
PROJECT SUMMARY:
The owner is interested in relocating a L'Auberge Cabin on to Lot 2 to function as a new single-
family dwelling unit. The cabin is approximately 320 square feet in size, and triggers the
Ordinance requirement that an ADU be provided as mitigation. The Land Use Code requires a
minimum size of 300 sq ft for an ADU, which is nearly the same size as the development being
proposed. The Applicant requests that the Ordinance condition requiring housing mitigation in
the form of an ADU be amended to enable the applicant to use today's code, which outlines a
number of different options for housing mitigation. This includes providing an ADU, paying a
cash-in-lieu fee, or purchasing an Affordable Housing Credit.
The lot is located above Hallam Lake, and development on a portion of the property would
trigger a Hallam Lake Bluff Review. The applicant proposes to locate the cabin near the street
and out of the Hallam Lake Bluff Review Area, so no review is required at this time. If, in the
future, the property owner wished to develop in that area a Hallam Lake Bluff Review would be
required.
STAFF COMMENTS:
SUBDIVISION AMENDMENT
The Applicant is requesting an amendment to Condition 4 in Section 1 of Ordinance 15, Series
of 1992. The condition currently reads: "An Accessory Dwelling Unit must be included on the
newly created lot as this is a requirement of the Lot Split. The Accessory Dwelling Unit must
comply with the Housing Authority's requirements and must receive conditional use approval by
the Aspen Planning and Zoning Commission. "
At the time, this was the only form of housing mitigation allowed for a Lot Split under the Land
Use Code. Today, an applicant has the following six (6) options for mitigating new
development, pursuant to Section 26.470.060 of the Land Use Code:
1) Providing an above-grade, detached accessory dwelling unit (ADU) or a carriage
house pursuant to Chapter 26.520, Accessory Dwelling Units and Carriage Houses;
2) Providing an accessory dwelling unit, or a carriage house, authorized through special
review to be attached and/or partially or fully subgrade, pursuant to Chapter 26.520;
3) Providing an off-site affordable housing unit within the Aspen Infill Area accepted
by the Aspen/Pitkin County Housing Authority and deed-restricted in accordance
with the Aspen/Pitkin County Housing Authority Guidelines, as amended;
4) Paying the applicable affordable housing impact fee pursuant to the Aspen/Pitkin
County Housing Authority Guidelines, as amended; or
5) Recording a resident-occupancy (RO) deed restriction on the single-family dwelling
unit being constructed.
6) Providing a Certificate of Affordable Housing Credit as mitigation, pursuant to
Section 26.540.060 Authority of the Certificate, commensurate with the net increase
Page 2 of 3
of square footage, according to Aspen/Pitkin County Housing Authority Guidelines,
as amended.
The applicant is requesting to amend Condition 4 to state: "At such time as development is
proposed for Lot 2, the applicant shall mitigate for affordable housing pursuant to the provisions
of Sec 26.470.060 of the Land Use Code, as may be amended from time to time. "
This will enable any future development on the property to be subject to the affordable housing
mitigation in place at the time of any building permit. Today, that would mean the applicant
could choose from the 6 options listed above.
In addition, Condition 5 of the Ordinance states, "Prior to issuance of any building permits,
Deed Restrictions for the Accessory Dwelling Unit shall be approved by the Housing Authority
and recorded by the Pitkin County Clerk and Recorder's Office. "
Condition 5 becomes obsolete if the language in Condition 4 is amended — if the applicant
chooses a different form of mitigation this section is unenforceable and could create confusion.
The applicant has not requested to amend this language, but staff recommends the language be
eliminated.
Staff Comments:
Staff finds the request meets the Subdivision review criteria. The request will bring the property
into conformance with today's code and the different options for mitigating new development.
The six options currently outlined in the code may change in the future as the City continues to
refine its growth management system. Staff therefore recommends that the amendment allow
any development on Lot 2 to be subject to the affordable housing requirements in place at the
time of a building permit. Specifically, Staff recommends in favor of amended language for
Condition 4, and recommends in favor of eliminating Condition 5, as it becomes obsolete if
Condition 4 is changed to recognize the language in the current Land Use Code.
REFERRAL COMMENTS:
The APCHA Board reviewed this project and recommended in favor of the proposal. Their
written comments are attached as Exhibit B.
RECOMMENDATION:
Staff recommends approval of the request.
RECOMMENDED MOTION:
"I move to approve the request for an Amendment to Conditions 4 and 5 in Section 1 of
Ordinance 15, Series of 1992 which granted the Hume Lot Split, as noted in Ordinance No. 21,
Series of 2012"
ATTACHMENTS:
EXHIBIT A—Review Criteria and Staff Findings
EXHIBIT B—Referral Comments
EXHIBIT C—Application
Page 3 of 3
ORDINANCE N0. 21,
(SERIES OF 2012)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING AN
AMENDMENT TO CONDITIONS 4 AND 5 IN SECTION 1 OF ORDINANCE 15,
SERIES 1992, WHICH ESTABLISHED THE HUME LOT SPLIT AND
AFFORDABLE HOUSING MITIGATION REQUIREMENTS FOR
DEVELOPMENT ON LOT 2, LEGALLY DESCRIBED AS: HUME LOT SPLIT,
LOTS 1 & 2, CITY OF ASPEN, PITKIN COUNTY, COLORADO.
Parcel ID 2735-121-280-02
WHEREAS,-the Community Development Department received an application
from EFH Holdings, LP, represented by Alan Richman, requesting approval of an
amendment to Ordinance 15, Series of 1992 which established the Hume Lot Split and
required that any development on Lot 2 of the Lot Split have an Accessory Dwelling
Unit; and,
WHEREAS,the property is zoned Medium Density Residential, R-6; and,
WHEREAS, upon initial review of the application and the applicable code
standards, the Community Development Department recommended in favor of the
proposed amendment; and,
WHEREAS, pursuant to Section 26.480.080, the City Council may approve a
Subdivision Amendment, during a duly noticed public hearing after considering
comments from the general public, a recommendation from the Community Development
Director, and recommendations from relevant referral agencies; and,
WHEREAS, during a duly noticed public hearing on September _, 2012, the
City Council approved Ordinance No. 21, Series of 2012, by a to _) vote,
approving an amendment to Ordinance 15, Series of 1992 through a Subdivision
Amendment; and,
WHEREAS,the Aspen City Council has reviewed and considered the development
proposal under the applicable provisions of the Municipal Code as identified herein, has
reviewed and considered the recommendation of the Community Development Director, the
- - - applicable referral agencies, and has taken and considered public comment at a public
hearing; and,
WHEREAS,the City Council finds that the development proposal meets or exceeds
all applicable development standards; and,
WHEREAS,the City Council finds that this Ordinance furthers and is necessary for
the promotion of public health, safety, and welfare.
Ordinance No, Series 2012
Page 1 of 3
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN AS FOLLOWS:
Section 1: Approvals
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal
Code, City Council herby amends Conditions 4 and 5 in Section 1 of Ordinance 15,
Series of 1992 to state:
4. At such time as development is proposed for Lot 2, the applicant shall mitigate for
affordable housing pursuant to the provisions of Sec 26.470.060 of the Land Use Code,
as may be amended from time to time.- Said section outlines the mitigation options for
mitigating affordable housing impacts created by single family and duplex development.
5. Condition 5 is hereby stricken in its entirety.
Section 2:
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 3•
This ordinance shall not affect any existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances repealed or
amended as herein provided, and the same shall be conducted and concluded under such
prior ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the
validity of the remaining portions thereof.
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 5:
A public hearing on this ordinance shall be held on the 10 ' day of September, 2012, at a
meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers,
Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing a public
notice of the same shall be published in a newspaper of general circulation within the City of
Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 13th day of August, 2012.
Ordinance No, Series 2012
Page 2 of 3
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:
City Attorney
Ordinance No, Series 2012
Page 3 of 3
Exhibit A, Staff Findings
26.480.080. Amendment to subdivision development order.
B. Other amendment. Any other amendment shall be approved by the City Council, provided
that the proposed change is consistent with the approved plat. If the proposed change is not
consistent with the approved plat, the amendment shall be subject to review as a new
development application for plat.
Staff Findings:
The applicant proposes to amend the language in the original approval Ordinance, Ordinance 15
Series of 1992. That ordinance approved a lot split for the property, creating Lot 1 and Lot 2 of
the Hume Subdivision. At the time, the land use code required that any new home have an
Accessory Dwelling Unit provided as affordable housing mitigation. Today, the land use code
establishes a number of options for the development of a new home. These include Cash-in-lieu,
the use of an Affordable Housing Credit, or the construction of an ADU. The applicant is
interested in amending the approval to take advantage of the existing options outlined in the
code. Today's code provides more flexibility then the code in place in 1992. Staff finds that the
request is consistent with the original approval because it reverts to the code in place at the time
of the proposed development. Staff recommends in favor of the change.
Exhibit B, APCHA Referral Comments
MEMORANDUM
TO: Jessica Garrow
FROM: Cindy Christensen
DATE: August 1, 2012
RE: MITIGATION FOR DEVELOPMENT OF LOT 2, HUME LOT SPLIT
ISSUE: The applicant is requesting an amendment to a condition that requires the construction of
an accessory dwelling unit (ADU) and would like to provide a cash-in-lieu payment instead of the
required ADU.
BACKGROUND: Ordinance 15, Series of 1992, created a lot split which created Lot 2. The
property is located along Lake Avenue and is currently a vacant lot. A condition was that an ADU
was to be included on the newly created lot and that must comply with the APCHA's requirements.
This was based on the construction of a single-family home on the lot and was a requirement under
the Land Use Code in 1992.
According to the Land Use Code today, an applicant has the option to mitigate by providing an on-
site ADU or Carriage House, provide an off-site affordable housing unit, or record a RO restriction
on the new unit. The applicant has no interest at this time to develop Lot 2; however, the applicant
has agreed to provide placement of the one of the cabins removed from the Aspen Jewish
Community Center. Ordinance 15, Series of 1992, would require the applicant to construct an
ADU on the property about the same size as the cabin; therefore, the applicant is seeking approval
to mitigate with the payment-in-lieu. The current mitigation for the 320 square foot cabin would be
320 X $76.93 (current payment-in-lieu fee for new construction) = $23,617.60 since the lot is
currently vacant; however, the amount that would be paid would be based on the amount in effect
in the APCHA Guidelines at the time of building permit submission.
DISCUSSION: The applicant stepped forward when the Aspen Jewish Community Center was
looking for places to relocate three of the nine original cabins that was required by the HPC for the
redevelopment of the old L'Auberge property. The applicant would like relocate the cabin on the
property without the requirement of also providing an accessory dwelling unit. When the applicant
decides to construct a single-family residence on Lot 2, the applicant will consider at that time
whether the cabin could serve as an ADU, or if the cash-in-lieu should be paid based on the new
residence, or one of the other options stipulated in the Land Use Code.
Page 1
Lot 2,Hume Lot Split Amendment
At the time of the construction of the single-family residence, a payment-in-lieu fee would be based
on the square footage of that structure, minus the 320 square feet of the cabin, times the amount
stated in the APCHA Guidelines at the time of that building permit submission.
RECOMMENDATION: The APCHA Board reviewed the application at their regular meeting
held August 1, 2012, and due to the failure of the ADU program, recommends approval of the
payment-in-lieu fee, based on the amount in effect at the time of building permit submission.
APCHA would also recommend the use of the affordable housing credit certificate program for the
future development of this lot.
Lot 2,Hume Lot Split Amendment Page 2
Tax 3613,4j#", eo&uu a 91612 (970)920-1125 a�ric!*HCac�•.cet
June 25, 2012 Y7a 4 x
y°Y FL a,
Ms. Jessica Garrow, Planner
City of Aspen Community Development Department E ° :i
130 South Galena Street
Aspen, Colorado 81611
RE: APPLICATION FOR SUBDIVISION AMENDMENT FOR LOT 2 OF THE HUME
LOT SPLIT
Dear Jessica,
This is an application requesting an amendment to a condition that applies to Lot 2 of the
Hume Lot Split. The Hume Lot Split is located along Lake Avenue (see vicinity map
shown on proposed site plan). The Pitkin County Parcel ID# for Lot 2 is 273512128002.
A street address has not yet been assigned to this property as Lot 2 is a vacant lot.
The application is being submitted by EFH Holdings, LP, the owner of Lot 2 (hereinafter,
"the applicant"). Proof of the ownership of the property is provided in the form of the
warranty deed to the property (see Exhibit #1). The applicant has designated Alan
Richman Planning Services, Inc. as its representative for this application (see the letter
attached hereto as Exhibit#2).
The applicant is proposing to relocate onto Lot 2 one of the small, original cabins that was
recently removed from the L'Auberge property. However, in order to do so, staff has
informed the applicant that it will first be necessary to amend Condition #4 of Ordinance
15, Series of 1992, which is the ordinance that created the lot split (see Exhibit #3).
Condition #4 reads as follows:
An Accessory Dwelling Unit must be included on the newly created lot as this is a
requirement of the Lot Split. The Accessory Dwelling Unit must comply with the Housing
Authority's requirements and must receive Conditional Use approval by the Aspen
Planning and Zoning Commission.
The applicant would like to amend this condition so that it is not necessary to provide an
ADU in order to place this cabin on the property. Instead, the applicant would prefer to be
allowed to comply with the City's current mitigation requirements for affordable housing
which include not only provision of an on-site ADU but also payment of an in-lieu fee.
Given the very small size of the cabin (approximately 320 sq. ft.), a payment in-lieu is a
much more reasonable form of mitigation than development of an on-site ADU.
Ms. Jessica Garrow
June 25, 2012
Page Two
Several pre-application discussions were held between the applicant and staff of the
Community Development Department. A copy of the pre-application form staff provided to
the applicant is attached hereto as Exhibit #4. According to the form, the applicant has
been directed to respond to the following sections of the Land Use Code:
26.480.080: Amendment of Subdivision Development Order (Other Amendment).
The applicant is also submitting an administrative land use application, requesting
variances to three (3) of the City's residential design standards. These variances are
necessary to accommodate the cabin on the site without changing its appearance.
The following sections of this application are organized to demonstrate how the proposal
complies with the applicable review standards of the Aspen Land Use Code. First
however, some background information is presented describing the existing conditions of
the lot and tracing the history of the prior land use approvals granted to property.
Background Information
The Hume Lot Split Subdivision Exemption was approved by the Aspen City Council
pursuant to Ordinance 15, Series of 1992. The final plat of the Hume Lot Split is recorded
in Plat Book 29 at Page 55 of the Pitkin County records and the Statement of Subdivision
Exemption is recorded in Book 685 at Page 858 of those records.
The plat shows that Lot 2 has an area of 15,909 sq. ft. The lot is generally flat along its
front portion but then drops off steeply along the rear, below the bluff toward Hallam Lake.
There is a grove of mature trees (Aspen trees and conifer trees) along the western edge of
the property and at the top of the bank, towards the rear of the property. Lot 2 is otherwise
undeveloped, except for man-made planting in the garden.
The property is zoned R-6, a zone district with a minimum lot size of 6,000 sq. ft.
Therefore Lot 2 is a conforming sized lot of record.
Subdivision Amendment
The applicant proposes an amendment to the Hume Lot Split Subdivision Exception. The
amendment would revise Condition 4 of Ordinance 15, Series of 1992. That condition
reads as follows:
An Accessory Dwelling Unit must be included on the newly created lot as this is a
requirement of the Lot Split. The Accessory Dwelling Unit must comply with the Housing
Authority's requirements and must receive Conditional Use approval by the Aspen
Planning and Zoning Commission.
Ms. Jessica Garrow.
June 25, 2012
Page Three
The applicant proposes to amend this condition to read as follows:
4. At such time as development is proposed for Lot 2, the applicant shall mitigate for
affordable housing pursuant to the provisions of Sec. 26.470.070 B of the Land Use Code.
Amendments to approved subdivisions are addressed in Section 26.480.080 of the Aspen
Land Use Code. This section provides for what are identified as "insubstantial
amendments" (Sub-section A) and "other amendments" (Sub-section B).
An insubstantial subdivision amendment is limited to "technical or engineering
considerations first discovered during actual development which could not reasonably be
anticipated during the approval process or any other minor change to a plat that has no
effect on the conditions and representations limiting the original plat". An insubstantial
amendment may be authorized administratively.
Other subdivision amendments (that is, amendments which do not qualify as insubstantial
amendments) require review and approval by the Aspen City Council, "provided the
proposed change is consistent with the approved plat'.
The proposed amendment does not qualify as an insubstantial subdivision amendment
because it is not a technical or engineering consideration. Therefore, by definition the
amendment is considered to be an "other amendment". This means that the amendment
must be determined to be consistent with or an enhancement of the approved final plat in
order for the amendment to be approved.
The proposed amendment is consistent with the original approval because the terms of
the original approval reflected the Land Use Code language of the lot split subdivision
exemption that was in effect in 1992. At that time, to be eligible for a lot split the
applicant was required to develop an ADU on the newly created lot. Today, an
applicant who proposes a lot split is given a series of options for how to mitigate for
affordable housing. These options include providing an on-site ADU or Carriage House,
providing an off-site AHU, paying an affordable housing impact fee, or recording an RO
restriction on the new unit. Lot 2 has remained undeveloped for the 20 years since the
lot split was approved. The applicant seeks this amendment so that development of Lot
2 will be subject to the current Code, just as the prior condition required development of
Lot 2 to comply with the then current Code.
Granting the applicant the same level of flexibility that is given to all other applicants by
the current Code is a reasonable and fair approach that will permit this site to be used
for the cabin. Providing a site for the relocation of one of these post-World War II
cabins (built for what was once known as the Swiss Chalets) achieves an important
public purpose.
Ms. Jessica Garrow
June 25, 2012
Page Four
When the Aspen Jewish Community Center first proposed the relocation of three of the
nine original cabins from its site, the HPC required the applicant to find locations for
these cabins within the City. The AJCC expended considerable time advertising the
availability of the cabins and seeking persons who would relocate them within the City.
These efforts were not successful and the HPC ultimately decided to revise its
requirements such that the cabins could be relocated outside of the City or could be
demolished if there were no takers. EFH Holdings LP has now stepped forward and is
willing to provide a location for one of the cabins within the City, in the Lake Avenue
neighborhood.
The applicant has no interest in building a single family residence on the lot at this time.
The only development contemplated is the placement of the cabin on the site in the
vacant spot shown on the proposed site plan. If the applicant were required to provide
an ADU just to install the cabin that would force more development to occur on the site
than is desired or appropriate at this time and would eliminate lose some of the gardens
present on this lot, something the applicant is not willing to see happen. Moreover, it
would require the applicant to build almost as much square footage for the ADU
(minimum size of 300 sq. ft.) as is present in the cabin (320 sq. ft.). Therefore, the
applicant seeks the ability to pay cash-in-lieu for this minor development activity, which
is exactly what any other applicant who gets approval for a lot split today is able to do.
At some point in the future, when a single family residence is ultimately planned for this
site, the owner can consider whether this cabin could serve as an ADU, or if cash-in-lieu
should be paid, or one of the other options should be pursued. So the City will not lose
the opportunity to have an ADU on this site via this amendment. Instead, it allows the
City to receive an immediate monetary gain via the housing impact fee, which will be
supplemented in the future in the form of additional cash-in-lieu for any future square
footage that is built, or one of the other forms of housing mitigation allowed by the Code.
Based on these responses, the applicant respectfully requests that the Aspen City
Council amend condition #4 of Ordinance 15, Series of 1992 in the manner written
above to allow the cabin to be relocated to this lot. We believe that these responses and
the attached materials provide all of the information required to process this application.
However, if there is anything else I can provide to you or any other questions I can answer
please do not hesitate to contact me.
Sincerely,
ALAN RICHMAN PLANNING SERVICES
A, "
Alan Richman, AICP
EXHIBITS
EXHIBIT #1
WARRANTY DEED
THIS DEED, made this 29 day of DECEMBER
1997, between ANTHONY HUMS
OF THE COUNTY OF 2HL-SR'3 STATE OF TX
GRANTOR, AND EFH HOLDINGS, LP, A CALIFORNIA LIMITED
PARTNERSHIP, GRANTER
whose legal address is t 137 CENTRAL AVE. SUITE 1, SALINAS, CA 93901
COUNTY OF , STATE OF CALIFORNIA
WITNRSBRTH, That for and in consideration of the sum of ten dollars
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the grantor has granted, bargained, sold and
conveyed, and by these presents does grant, bargain, sell and convey and
confirm unto the grantee, its successors and assigns forever, all the real
property together with improvements, if any, situate and lying and being in
the County of PITKIN, State of COLORADO, described as follows:
LOT 21 HUME LOT SPLIT, according to the Plat thereof recorded August 11,
1992 in Plat Book 29 at Page 55.
411976
TRANSFER DECLARATION RECEIVED 12/2911991
TOGRTHRR with all and singular the hereditaments and appurtenances
thereto belonging, or in anywise appertaining, and the reversion and
t
reversions, remainders, rents, issues and profits thereof, and all the
estate, right, title, interest, claim and demand whatsoever of the grantor
either in law or equity, of, in and to the above bargained premises, with
the hereditaments and appurtenances.
TO HAVR AND TO HOLD the said premises above bargained and described,
with the appurtenances, unto the grantee, its successors and assigns forever.
And the Grantor, for itself, its successors and/or assigns, does
�O covenant, grant, bargain, and agree to and with the Grantee, its heirs and
assigns, that at the time of the ensealing delivery of the presents, he is
well seized of the premises above conveyed, has good, sure, perfect,
absolute and indefeasible estate of inheritance, in law, in fee simple,
and has good right, full power and lawful authority to grant, bargain,
sell and convey the same in manner and form as aforesaid, and that the
J same are free and clear from all former and other grants, bargains, sales,
n liens, taxes, assessments, encumbrances and restrictions of whatever kind
or nature soever, except those matters as set forth on Exhibit "A" attached
hereto and incorporated herein by reference.
The grantor shall and will WARRANT AND FORRVRR DRFRND the above bargained
�. premises in the quiet and peaceable possession of the grantee, his heirs
and assigns, against all and every person or persons lawfully claiming the
whole or any part thereof. The singular number shall include the plural,
Q the p ural the singular, and the use of gender shall be applicable to all
as� gende s.
ANTHONY E
SSS Q� I(VIII"III"II'I III'�'I'll I"I('ll"I III'�I'I II'I I'll
p 411970 12/29/1997 04,11P ND DAVIS SILVI
�- 1 of 2 R 11.00 D 100.00 N 0.00 PITKIN COUNTY CO
STATE OPCI�IyyOr u�v )
COUNTY OF�j'1 iV% ) so'
The foregoing instrument was acknowledged before me this day of L)2-<—
1961-1 , by ANTHONY HUME. A
i
WITNESS my hand and official seal „gotary. ublic
MY commission expires: j`,��
L
EXHIBIT "A"
1. Taxes for the year 1993 not yet due or payable.
2. Right of the proprietor of a vein or lode to extract and remove his
ore therefrom, should the same be found to penetrate or intersect the
premises hereby granted and right of way for ditches or canals
constructed by the authority of the United States as reserved in
United States Patent recorded June 8, 1988 in Book 55 at Page 2.
3. Terms, conditions, provisions and obligations as set forth in Grant
of Easement recorded September 13, 1971 in Book 257 at Page 721.
4. Terms, conditions, obligations and all matters as set forth in
Statement of Exception from the Full Subdivision Process recorded
August 11, 1992 in Book 685 at Page 858.
5. Easements, rights of way and all matters as disclosed on Plat of
subject property recorded August 11, 1992 in Plat Book 29 at Page 55.
111111 11111 I II{II IIIII IIIII 1111 111111111111111 1111 IN
II
411975 12/29/1997 94:11P WD MIS SILVI
2 of 2 R 11.99 D 190.00 N 0.09 PITKIN COUNTY CO
EXHIBIT#2
Ms. Jessica Garrow, Senior Planner
City of Aspen Community Development Department
130 South Galena Street
Aspen, Colorado 81611
RE: LETTER OF AUTHORIZATION FOR LOT 2, HUME LOT SPLIT
Dear Amy and Sara,
EFH Holdings LP is the owner of the Lot 2 of the Hume Lot Split, located along Lake
Avenue. I hereby authorize Alan Richman Planning Services to submit an application for
Subdivision amendment and Residential Design Standards Variances for this property.
Mr. Richman is authorized to submit this application on our behalf and to represent us in
meetings with staff and the applicable decision-making bodies.
Should you have any need to contact us during the course of your review of this
application please do so by calling Mr. Richman at the phone number he has provided in
the land use application.
Sincerely,
l�
EFH Holdings, LP
Ellen F. Hunt, Partner
P.O. Box 8770
Aspen, CO 81612
970-925-8838
EXHIBIT #3
ORDINANCE NO. 15
(SERIES OF 1992)
AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING A SUBDIVISION
EXEMPTION FOR A LOT SPLIT, 330 LAKE AVENUE, LOTS 5,6,7,8 AND 9,
BLOCK 103, HALLAM SUBDIVISION, CITY AND TOWNSITE OF ASPEN.
WHEREAS, pursuant to Section 24-8-104 C.1. (a) of the Municipal Code
the applicant, Anthony Hume, has submitted an application to a lot
split; and
WHEREAS, a lot split shall be considered a subdivision exemption
subject to review by the City Council; and
WHEREAS, the staff has reviewed the lot split application and has
found that the two created lots conform to the minimum lot size!, of
the underlying zoning of R-6, the parcel has not been subject, to
subdivision by the Board of County Commissioners or City Council
or subdivision after March 14, 1969, and a final plat shall, be
filed with the City Clerks office containing all pertinent notes
regarding future development; and
WHEREAS, staff recommends to the City Council approval of the lot
split with conditions.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITYIOF
ASPEN, COLORADO:
section 1
That it does hereby approve the lot split for the property located
at 330 Lake Avenue, Lots 5, 6, 7, 8 and 9, Block 103, Hallam
Subdivision, with the following conditions:
Awl&
1. A plat shall be , filed with the Pitkin County Clerk and
Recorder within 180 days of final approval. The plat shall' be
reviewed and approved- by the Engineering and Planning Departments
i 0 and shall include the following:
a. Final plat contents shall comply with Section 24-7-1004-
D.2 of the Municipal Code. There must be language on the plat
that states that all easements indicated on title policy NO-
, dated (within past twelve months) have been shown
on the plat. The plat must show Hallam Addition lot and block
lines and designations. The plat shall contain a note that
states that a permit is required from the City Public Works
Agency for any work performed in the public right-of-way.
b. A note indicating that prior to issuance of a building
permit for development on lot 2, the applicant shall submit
a drainage plan to the Engineering Department.
C. All fences shall be depicted on the plat to determine
the fence location and the ownership of the property.
d. A note referencing the Environmentally Sensitive Area and
shall read as follows: Any development on these lots is
subject to review for compliance with Ordinance No. 71 (Series
of 1990) .
e. The plat shall provide one 41x4 ' (four foot by four foot)
utility pedestal easement and lot line and transformer utility
easement as needed.
2. Prior to final plat approval an encroachment license shall be
obtained for the fence on proposed lot 2 .
3 . A Subdivision Exemption Agreement listing the conditions of
approval shall be recorded with the final plat.
4. An Accessory Dwelling Unit must be included on the newly
created lot as this is a requirement of the Lot Split. The
Accessory Dwelling Unit must comply with the Housing Authority's
requirements and must receive Conditional Use approval by the Aspen
Planning and Zoning Commission.
5. Prior to issuance of any building permits, Deed Restrictions
for the Accessory Dwelling Unit shall be approved by the Housing
Authority and recorded by the Pitkin County Clerk and Recorder's
Office.
6. The applicant shall consult City Engineering for design
considerations of development within public rights-of-way and shall
obtain permits for any work or development within public rights-
of-way from City Streets Department.
7 . The applicant shall agree to join any future improvement dis-
tricts which may be formed for the purpose of constructing
y improvements in the public right-of-way.
8 . The applicant shall remove the fence along the ditch easement
so as not to obstruct ditch maintenance if in fact maintenance is
obstructed.
Section 2:
That the City Clerk be and hereby 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 3:
If any section, subsection, sentence, clause, phrase or portion of
this ordinance is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such provision and such
holding shall not affect the validity of the remaining portions
thereof.
section 4:
This Ordinance shall not effect 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:
A public hearing on the Ordinance shall be held on the 23th
day of March, 1992 at 5:00 P.M. in the City Council Chambers, Aspen
City Hall, Aspen Colorado, fifteen (15) days prior to which hearing
a public notice of the same shall be published in a newspaperof
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
1992.
I
John Bennett, Mayor
ATTEST:
Kathryn . Koch, city Clerk
M
FINALLY, P INALLY adopted, passed and approved this 3 day of
a"-.-e—, . ' 1992. .5;. l
John gennett, Mayor
ATTEST':'-'
Kathryn Koch, city Clerk
AOk
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EXHIBIT #4
CITY OF ASPEN
PRE-APPLICATION CONFERENCE SUMMARY
PLANNER: Jessica Garrow—970.429.2780 DATE: 5.17.12, updated 6/7/2012
PROJECT: Hume Lot Split Amendment
REPRESENTATIVE: Gideon Kaufman, ak(akpolaw.com
Alan Richman, arichman(absopris.net
TYPE OF APPLICATION: Amendment to approved Lot Split, Subdivision, Other Amendment, Residential
Design
DESCRIPTION: The applicant is interested in amending the affordable housing condition that was approved as
part of the original Hume Lot Split. The Hume Lot Split was approved via Ordinance 15, Series of 1992. Condition
4 of the approval requires that an on-site Accessory Dwelling Unit be provided as affordable housing mitigation
when a building is constructed or placed on Lot 2. Condition 5 requires that a deed restriction be approved by the
Housing Authority.
The applicant would like to remove this condition, and be able to use the mitigation requirements in place in the
Land Use Code today. These would include an option to build an on-site ADU, provide a housing credit, or
provide cash-in-lieu. This requires an amendment to the Ordinance approving the Lot Split.
The Applicant will need to submit a Land Use Application requesting an Amendment to the Subdivision
Development Order — Other amendment. Because this is an amendment to a City Council Ordinance, this
amendment is reviewed by City Council.
The Applicant is interested in relocating one of the L'Auberge cabins on Lot 2. The cabin is approximately 300
square feet and does not meet the Residential Design Standards. Among other items, it does not have a front
porch or a front door. The applicant is not interested in changing the cabin in anyway—she would like to move the
cabin and place it on the site as— is. Because the cabin does not comply with the Residential Design Standards,
and there is no exemption for the relocation of existing buildings, the applicant is interested in requesting variances
from the Residential Design Standards. Based on staffs initial review of the cabin and lot split plat, it appears the
following variances are required: Secondary Mass (26.410.040.B.1), Entry Door (26.410.040.D.1.a), Entry Porch
(26.410.040.D.1.b). Additional variances may be required, depending on the final design and site plan. Because
the Ordinance will be open for changes related to the affordable housing mitigation, this request can be processed
as part of the same process, per section 26.304.060.B.1, Combined Reviews.
In addition, the relocated cabin must qualify as a dwelling unit under the City of Aspen Land Use Code.
Please note that a portion of this lot is located with the Hallam Lake Bluff Review area. Any development
proposed in this area will require a Hallam Lake Bluff Review by the Planning and Zoning Commission. Based on
the pre-application meeting, staff believes the cabin is proposed to be relocated outside of the Hallam Lake Bluff
area. Confirmation of this is required as part of the application.
Below are links to the Land Use Application form and Land Use Code for your convenience.
Land Use Application Form: Land Use application
Land Use Code: Land Use Code
Land Use Code Section(s)
26.104.100 Definitions - Dwelling Unit
26.304 Common Development Review Procedures
26.304.060.6.1 Combined Reviews
26.410 Residential Design Standards
26.480.080 Amendment to subdivision development order
Review by: - Planning Staff for compliance/completeness
- APCHA for Housing referral
- City Council
Public Hearing: Required
Planning Fees: $1,890.00 Deposit for 6 hours of staff time. Additional staff time required is billed at
$315/hour
Referral Fees: Housing Referral - $945.00 (flat fee)
Total Deposit: $2,835.00
Total Number of Application Copies: 13: 3 for Staff and Referrals, 10 for Council
To apply, submit the following information:
1. Total Deposit for review of application.
2. Applicant's name, address and telephone number, contained within a letter signed by the
applicant stating the name, address, and telephone number of the representative authorized to
act on behalf of the applicant.
3. Street address and legal description of the parcel on which development is proposed to occur,
consisting of a current certificate from a title insurance company, or attorney licensed to
practice in the State of Colorado, listing the names of all owners of the property, and all
mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and
demonstrating the owner's right to apply for the Development Application.
4. Completed Land Use Application.
5. Signed fee agreement.
6. Pre-application Conference Summary.
7. An 8 1/2" x 11" vicinity map locating the subject parcel within the City of Aspen.
8. Photos of each side of the cabin proposed for relocation to the site, and an existing floor plan.
9. A proposed site plan and visuals indicating what the cabin will look like on the site.
10.Responses to the Residential Design Standards.
11.Proof of ownership.
12.A copy of all previous approvals and plats for Lot 2 of the Hume Lot Split.
13.Proposed language amending Ordinance 15, Series of 1992.
14.An updated survey that includes the location of the Hallam Lake Bluff Review.
10.A written description of the proposal and a written explanation of how a proposed development
complies with the review standards relevant to the development application.
LEGEND AND NOTES
PROPOSED CABIN SITE PLAN E...,,.0 ...
LOT 2 . HUME LOT SPLIT
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MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Director of Finance
THRU: Steve Barwick, City Manager
DATE OF MEMO: September 4th, 2012
MEETING DATE: September 101h, 2012
RE: Ordinance Authorizing Issuance of Bonds for Parks and Open
Space Projects and Advance Refunding of Outstanding 2005
Bonds
REQUEST OF COUNCIL: This is for the City Council to authorize the issuance of
$5,225,000 in new Parks, Recreation and Open Space Bonds to finance capital improvements
and also to issue $4,445,000 in bonds to partially, advance refund outstanding 2005 Parks,
Recreation and Open Space bonds. There will be approximately $326,000 in premium
generation on the sale of these bonds that is part of each projects capital requirements.
PREVIOUS COUNCIL ACTION: City Council, as part of the approved 2012 budget gave
preliminary go ahead for the issuance of approximately 4 million dollars in new bonds in order to
finance a list of capital improvements proposed as part of that budget. Subsequently, the parks
department discussed with City Council additional project proposals that brought the total
estimated cost of all projects to $5,320,000.
BACKGROUND: In 2001 the City electorate authorized the issuance of up to $38,000,000 in
bonds for various projects. To date $25,680,000 has already been issued. Authority to issue
$12,320,000 in Bonds remains. As part of the development of the asset management plan for
2012 —2022 a list of capital projects were deemed important to undertake as soon as possible and
staff was directed to finance the cost of these projects through the issuance of bonds. These
projects were as follows:
$1,225,000 Wagner Park 2013
$ 750,000 Galena Plaza Landscape Project
$ 750,000 City share of Droste
$ 225,000 Golf Course Pond 2012
$ 220,000 Bob Helm Bridge 2012
$ 100,000 Rio Grande Park Restroom 2012 -2013 (2 year project)
Page 1 of 3
$ 500,000 Rio Grande Park 2012 -2013 (2 year project)
$ 225,000 Rio Grande Irrigation and Pump System
$ 750,000 Burlingame Park Development
$ 575,000 Open Space Acquisitions
DISCUSSION: The total financing shown above totals $5,225,000. Closing costs will bring the
size of the issue to $5,403,000. The all in true interest cost of this issue is estimated to be 3.3%
if sold today. The proposed debt service structure for the bonds is a little unique as the bonds are
issued as interest only until 2026. This allows the City to take advantage of extremely low
interest rates for a longer period of time and still maintains a level debt service schedule. The
overall Parks debt service schedule is level because other parks bonds will be paid off in 2026
when the 2012 bonds will be scheduled for repayment. If Council approves the ordinance, staff
will work with Stifel Nicolaus to place these bonds under the parameters established in the
ordinance. As to the refunding bonds the present value savings must equal at least 5% of the
refunded bonds in ordered to proceed with the issuance. The ordinance sets out all of the terms
for the issuance of the bonds.
In addition to issuing bonds to finance these projects, staff has been analyzing the possibility of
doing a partial advance refunding (refinance) of the 2005B Parks and recreation bonds. Interest
rates have dropped so low and we are now close enough to the call date that the bonds can be
refunded in two tranches and save the City money. The City would issue $4,445,000 in bonds as
part of this overall debt package to refund a portion of the outstanding 2005 bonds. The
estimated savings on the first refunding tranche is $280,000.
In 2013 the City would issue another 10 million to refund most of the remainder of the 2005
bonds if interest rates remain low enough to make the refunding financially viable. The reason
this is split in two tranches is that there are IRS regulations that give tax advantages to small
issuers of tax free debt. As long as our total issuances are less than $10,000,000 million annually
we will maintain that tax advantaged status.
The estimated true interest cost for the bonds to conduct the refunding is 3.0%. The actual
interest rates for both of these issues will change based on market conditions on the date of the
sale.
FINANCIALBUDGET IMPACTS: The financial impacts of the new money bond issue is
debt service costs in the amount of$160,000 annually until 2026 when the annual debt service
costs will increase to approximately $840,000 per year until 2032. The financial impacts of the
first refunding tranche are a $280,000 savings over the remaining life of the outstanding 2005
Parks and Recreation Bonds.
RECOMMENDED ACTION: Staff recommends approval of the issuance of Bonds to both
refund outstanding 2005 bonds and to raise $5,403,000 in new money for the proposed projects.
Page 2 of 3
ALTERNATIVES: The alternative would be to not issue bonds and to spread completion of the
projects over many years and pay for them out of current revenues each year.
PROPOSED MOTION: Move to approve ordinance authorizing the issuance of bonds for the
purpose of completing parks and open space projects and refunding a portion of the outstanding
2005 Parks, Recreation and Open Space Bonds.
CITY MANAGER COMMENTS: e �
ATTACHMENTS:
Page 3 of 3
ORDINANCE NO. {SERIES OF 2012)
AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF
ASPEN, COLORADO, OF ITS SALES TAX REVENUE REFUNDING AND
IMPROVEMENT BONDS, SERIES 2012, IN THE AGGREGATE PRINCIPAL
AMOUNT NOT TO EXCEED $9,995,000, FOR THE PURPOSE OF
ADVANCE REFUNDING A PORTION OF THE CITY'S SALES TAX
REVENUE BONDS, SERIES 2005B AND PURCHASING AND IMPROVING
TRAIL, RECREATION AND OPEN SPACE PROPERTIES AND
ANCILLARY FACILITIES; PRESCRIBING THE FORM OF THE SERIES
2012 BONDS; PROVIDING FOR THE PAYMENT OF THE SERIES 2012
BONDS FROM THE SAME REVENUES PLEDGED TO THE PAYMENT OF
THE SERIES 2005B BONDS TO BE REFUNDED (CONSISTING OF THE
CITY'S ORIGINAL 1.0% OPEN SPACE SALES TAX AND ITS
ADDITIONAL 0.5% OPEN SPACE SALES TAX); PROVIDING OTHER
DETAILS AND APPROVING OTHER DOCUMENTS IN CONNECTION
WITH THE SERIES 2012 BONDS; DELEGATING THE AUTHORITY TO
MAKE A FINAL DETERMINATION OF CERTAIN TERMS OF THE SERIES
2012 BONDS; DIRECTING OFFICERS OF THE CITY TO EXECUTE
CERTAIN DOCUMENTS IN CONNECTION WITH SUCH REFUNDING
BONDS; AND DECLARING AN EMERGENCY
WHEREAS, the City of Aspen (the "City"), in the County of Pitkin and State of
Colorado, is a legally and regularly created, established, organized and existing municipal
corporation under the provisions of Article XX of the Constitution of the State of Colorado and
the home rule charter of the City (as more particularly defined in Section 1 herein, the "Charter")
(all capitalized terms used and not otherwise defined in the recitals hereof shall have the meaning
assigned in Section 1 of this Ordinance); and
WHEREAS, under the Charter, the City is possessed of all powers which are necessary,
requisite or proper for the government and administration of its local and municipal matters, all
powers which are granted to home rule municipalities by the Colorado Constitution, and all
rights and powers that now or hereafter may be granted to municipalities by the laws of the State
of Colorado; and
WHEREAS, pursuant to Section 10.6 of the Charter, the City Council of the City (the
"City Council") may authorize, by ordinance, without an election, the issuance of refunding
bonds for the purpose of refunding and providing for the -payment-of the City's outstanding
bonds;
WHEREAS, pursuant to the provisions of Article 56 of Title 11, Colorado Revised
Statutes, as amended (the "Refunding Act"), the City is authorized to issue refunding bonds for
the purpose of refunding, paying and discharging any part of the Series 2005B Bonds (described
below) and for one or more other purposes, including but not limited to effecting certain
economies for the City, subject to the terms, conditions and limitations in the Refunding Act; and
4838-4505-1920.2
WHEREAS, Article X, Section 20 of the Colorado Constitution ("TABOR") provides
that voter approval in advance is required for the creation of any district (as such term is defined
in TABOR, which includes governmental entities such as the City) direct or indirect debt or
other multiple-fiscal year financial obligation whatsoever except for refinancing district bonded
debt at a lower interest rate; and
WHEREAS, pursuant to the City's Ordinance No. 16, Series of 1970 (the "Original Parks
and Open Space Sales Tax Ordinance"), the City levies a one percent (1.00%) sales tax (the
"Original Parks and Open Space Sales Tax") on all sales of tangible property and services
specified in Section 23.32.090 of the City's Municipal Code for the payment of food tax refunds,
and for the acquisition of real property including open space or construction of capital
improvements for municipal purposes, or the payment of indebtedness incurred for such
acquisition or construction of capital improvements for municipal purposes, for the expenditures
necessary to protect such property against loss, damage or destruction; and
WHEREAS, receipts from the Original Parks and Open Space Sales Tax are required by
Section 23.32.060(c)(3) of the City's Municipal Code to be set aside in a separate fund entitled
"Parks and Open Space Fund" and expended by the City Council solely for the acquisition of
parks, trails and open space real property, for the construction of improvements on any real
property, owned or purchased by the City for parks, trails and open space purposes, for the
maintenance of real property owned by the city and used for parks, trails and open space, and for
payment of indebtedness incurred for acquisition or improvement of parks, trails and open space
real property, food tax refunds payable by the City, and for such expenditures as may be
necessary to protect real property or the improvements thereon owned by the City for parks,
trails and open space purposes and for the payment of sales tax revenue bonds issued by the City;
and
WHEREAS, the following question (the "Ballot Question") regarding the imposition of
an additional 0.5% sales tax (as defined herein, the "Additional Parks and Open Space Sales
Tax" and, collectively with the Original Parks and Open Space Sales Tax, the "Parks and Open
Space Sales Tax") and the issuance of sales tax revenue bonds for the purpose of buying,
improving and maintaining trail, recreation and open space properties and ancillary facilities was
submitted to the electors of the City at the City's November 7, 2000 election, and was approved
by a majority of those voting on the question:
SHALL CITY OF ASPEN TAXES BE INCREASED UP TO
$2,280,000.00 (FIRST FULL FISCAL YEAR-DOLLAR INCREASE, NET OF
ANY CONSTITUTIONALLY REQUIRED TAX CUTS) ANNUALLY BY THE
IMPOSITION OF AN ADDITIONAL 0.5% SALES TAX COMMENCING ON
JANUARY 1, 2001, AND TERMINATING ON DECEMBER 31, 2025, AND
SHALL CITY OF ASPEN DEBT BE INCREASED BY AN AMOUNT NOT TO
EXCEED $38.0 MILLION WITH A MAXIMUM REPAYMENT COST OF
$91,065,000.00 FOR THE PURPOSE OF BUYING, IMPROVING AND
MAINTAINING TRAIL, RECREATION AND OPEN SPACE PROPERTIES
AND ANCILLARY FACILITIES;
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4838-4505-1920.2
SUCH DEBT TO CONSIST OF REVENUE BONDS PAYABLE FROM
CITY SALES TAXES THAT BEAR INTEREST, MATURE, ARE SUBJECT
TO REDEMPTION, WITH OR WITHOUT PREMIUM, AND ARE ISSUED,
DATED, AND SOLD, AT SUCH TIMES AS NEEDED TO FINANCE THE
PURCHASES OR IMPROVEMENTS AS DESCRIBED ABOVE, AT SUCH
PRICES (AT, ABOVE OR BELOW PAR) AND IN SUCH MANNER AND
CONTAIN SUCH TERMS AS THE CITY COUNCIL MAY DETERMINE;
AND
SHALL ANY EARNINGS (REGARDLESS OF AMOUNT) FROM THE
INVESTMENT OF THE PROCEEDS OF SUCH TAXES AND SUCH BONDS
CONSTITUTE A VOTER-APPROVED REVENUE CHANGE?
; and
WHEREAS, the City, pursuant to Ordinance No. 7, Series of 2001 (the "Additional Parks
and Open Space Sales Tax Ordinance" and, together with the Original Parks and Open Space
Sales Tax Ordinance, the "Parks and Open Space Tax Ordinances"), has since January 1, 2001
levied the Additional Parks and Open Space Sales Tax and, pursuant to Section 23.32.060(c)(7)
of the City's Municipal Code, deposits the revenues of the Additional Parks and Open Space
Sales Tax in the Parks and Open Space Fund; and
WHEREAS, on August 21, 2001, pursuant to Ordinance No. 29 (Series of 2001) (the
"Series 2001 Ordinance"), the City issued the City of Aspen, Colorado, Parks and Open Space
Sales Tax Revenue Bonds, Series 2001 (the "Series 2001 Bonds"), originally issued in the
aggregate principal amount of$10,780,000, none of which remains outstanding, for the purpose
of providing funds for buying, improving and maintaining trail, recreation and open space
properties and ancillary facilities; and
WHEREAS, on March 24, 2005, pursuant to its Ordinance No. 19 (Series of 2005) (the
"Series 2005 Ordinance"), the City issued the City of Aspen, Colorado, Sales Tax Revenue
Refunding Bonds, Series 2005 (the "Series 2005 Bonds"), originally issued in the aggregate
principal amount of$12,380,000 and presently outstanding in the aggregate principal amount of
$7,335,000, for the purpose of refunding the City's Sales Tax Revenue Bonds, Series 1999; and
WHEREAS, on October 12, 2005, pursuant to its Ordinance No. 42 (Series of 2005) (the
"Series 2005B Ordinance"), the City issued the City of Aspen, Colorado, Sales Tax Revenue
Bonds, Series 2005B (the "Series 2005B Bonds"), originally issued in the aggregate principal
amount of $14,900,000 and presently outstanding in the aggregate principal amount of
$14,300,000, for the purpose of buying, improving and maintaining trail, recreation and open
space properties and ancillary facilities; and '
WHEREAS, on December 15, 2009, pursuant to its Ordinance No. 24 (Series of 2009)
(the "Series 2009 Ordinance"), the City issued the City of Aspen, Colorado, Sales Tax Revenue
Refunding Bonds, Series 2009 (the "Series 2009 Bonds"), originally issued in the aggregate
principal amount of$7,070,000 and presently outstanding in the aggregate principal amount of
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4838-4505-1920.2
$6,895,000, for the purpose of refunding a portion of the Series 2001 Bonds (the remainder of
which Series 2001 Bonds have now been paid); and
WHEREAS, the net revenues of the Parks and Open Space Sales Tax are pledged to the
payment of the principal of and interest on the Series 2005 Bonds, the Series 2005B Bonds and
the Series 2009 Bonds, pursuant to the Series 2005 Ordinance, the Series 2005B Ordinance and
the Series 2009 Ordinance, respectively; and
WHEREAS, the Series 2005B Bonds maturing on or before November 1, 2015 are not
subject to redemption prior to their respective maturities, and the Series 2005B Bonds maturing
on and after November 1, 2016 are subject to redemption prior to their maturity, at the option of
the City, on November 1, 2015 at a redemption price equal to the principal amount of the bonds
so redeemed, plus accrued interest to the redemption date; and
WHEREAS, the City Council of the City has determined that it is in the best interests of
the City to refund a portion of the Series 2005B Bonds to be determined by the Sale Delegate in
accordance with the delegation authority set forth herein (as more particularly defined herein, the
"Refunded Bonds"), up to an aggregate principal amount of$5,500,000, and for the purpose of
refunding such Refunded Bonds at a lower interest rate, funding costs of the Project, acquiring a
reserve fund surety bond and to fund costs of issuance, to issue the City of Aspen, Colorado,
Sales Tax Revenue Refunding and Improvement Bonds, Series 2012 (the "Series 2012 Bonds")
in the aggregate principal amount of up to $9,995,000; and
WHEREAS, pursuant to the delegation authority herein, in the event that the principal
amount of the Series 2012 Bonds allocable to the refunding of the Refunded Bonds exceeds the
principal amount of the Refunded Bonds, in accordance with Section 11-56-107, C.R.S., the
principal amount of such allocable portion of the Series 2012 Bonds, when combined with the
principal amount of the Series 2005B Bonds outstanding which is not being refunded, will not
exceed the total original authorized principal amount of the Series 2005B Bonds, such that such
portion of the Series 2012 Bonds allocated to the refunding of the Series 2005B Bonds will
constitute a refunding at a lower interest rate not requiring electoral authorization in accordance
with TABOR and the Refunding Act; and
WHEREAS, the portion of the Series 2012 Bonds allocated to the funding of the Project
will require electoral authorization in accordance with TABOR and the Refunding Act, and the
City has determined that, based on the limitation of the principal amount thereof set forth herein,
the City has sufficient electoral authorization remaining under the Ballot Question for the same;
WHEREAS, the Series 2012 Bonds will be secured by a lien on the Parks and Open
Space Sales Tax revenue on parity with the lien thereon of the Series 2005 Bonds, the Series
2005B Bonds and the Series 2009 Bonds; and
WHEREAS, a portion of the proceeds derived from the sale of the Series 2012 Bonds
shall be deposited in the Escrow Account solely for payment of the Refunded Bonds and shall be
applied by the Escrow Agent to refund, pay and discharge the Refunded Bonds as shall be more
particularly set forth in the Escrow Agreement and the Sale Certificate; and
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4838-4505-1920.2
WHEREAS, the City Council has been presented with a proposal from Stifel Nicolaus &
Company, Incorporated, of Denver, Colorado, to purchase the Series 2012 Bonds upon specified
terms and conditions, the final terms and conditions of which are to be set forth in the Bond
Purchase Agreement in accordance with the Sale Certificate, and, after consideration, the City
Council has determined that the negotiated sale of the Series 2012 Bonds, subject to the
parameters set forth herein, to said company is to the best advantage of the City; and
WHEREAS, no member of the City Council has a potential conflict of interest in
connection with the authorization, issuance, sale or use of proceeds of the Series 2012 Bonds;
and
WHEREAS, pursuant to Section 4.11 of the Charter, the City is authorized to adopt
emergency ordinances for the preservation of public property, health, peace, or safety; and
WHEREAS, there is a need for issuing the Series 2012 Bonds in a timely manner in order
to take advantage of existing market conditions and obtain the greatest savings to the City's
inhabitants, thus freeing up City revenues which can be used for the purposes of preserving
public property, health, peace and safety; and
WHEREAS, this Ordinance is being adopted to authorize the issuance, sale and delivery
of the Series 2012 Bonds, to provide for the payment of the Series 2012 Bonds and to provide
the details of the Series 2012 Bonds; and
WHEREAS, there has been presented to the City Council, among other things,
substantially final forms of(a) the Preliminary Official Statement, (b) Paying Agent Agreement,
(c) the Bond Purchase Agreement (subject to completion in accordance with the terms of the
Sale Certificate), (d)the Escrow Agreement, and(e) the Continuing Disclosure Undertaking; and
WHEREAS, subject to the limitations set forth in this Ordinance, the City Council
desires, as provided in the Supplemental Public Securities Act, Part 2 of Article 57 of Title 11 of
the Colorado Revised Statutes, as amended, to delegate the authority to the City Manager, or in
the City Manager's absence, the Finance Director, to identify the Refunded Bonds and to
determine certain provisions of the Series 2012 Bonds to be set forth in the Sale Certificate, in
accordance with the provisions of this Ordinance; and
WHEREAS, the City Council also desires to delegate the authority to the City Manager,
or in the City Manager's absence, the Finance Director to determine whether it is economically
beneficial to obtain a financial guaranty insurance policy insuring the payment of the Series 2012
Bonds and, if so determined, to identify the Bond Insurer and execute the Commitment; to
determine whether a surety bond is to be obtained to secure payments on the Series 2012 Bonds,
and to execute and deliver the Bond Purchase Agreement and approve certain terms thereof, all
in accordance with the provisions of this Ordinance;
NOW, THEREFORE, BE IT ORDAINED by the City Council of City of Aspen,
Colorado:
Section 1. Definitions. The following terms shall have the following meanings as used
in this Ordinance:
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4838-4505-1920.2
"Additional Parks and Open Space Sales Tax" means the 0.5% sales tax that is levied in
addition to the Original Parks and Open Space Sales Tax by the City pursuant to the authority
granted by the Ballot Question, the Additional Parks and Open Space Sales Tax Ordinance and
Section 23.32.060(c)(7) of the City's Municipal Code. It is acknowledged that such 0.5% sales
tax terminates on December 31, 2025. Any extensions or replacements thereof, if any, shall not
constitute Additional Parks and Open Spaces Sales Tax for purposes of this Ordinance and the
proceeds of any such extension or replacement thereof shall not constitute Pledged Revenues
hereunder.
"Additional Parity Bonds" means any bonds or other obligations (which may or may not
be multiple-fiscal year financial obligations) permitted to be issued pursuant to Section 13 hereof
with a lien that is equal and on a parity with the lien of the Series 2005 Bonds, the Series 2005B
Bonds, the Series 2009 Bonds and the Series 2012 Bonds on the Pledged Revenues, the Bond
Fund and the Revenue Fund.
"Ballot Question" means the ballot question approved by City voters on November 7,
2000 authorizing the Additional Parks and Open Space Sales Tax.
"Bond Counsel" means (a) as of the date of issuance of the Series 2012 Bonds, Kutak
Rock LLP, and (b) as of any other date, Kutak Rock LLP or such other attorneys selected by the
City with nationally recognized expertise in the issuance of municipal bonds.
"Bond Fund' means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Bond Fund" which fund is reaffirmed as such in Section 10(b) hereof.
"Bond Insurance Policy" means the municipal bond insurance policy, if any, issued by
the Bond Insurer insuring the payment when due of the principal of and interest on the Series
2012 Bonds as provided therein.
"Bond Insurer" means the entity, if any, set forth in the Sale Certificate, or any successor
thereto.
"Bond Purchase Agreement" means the agreement between the City and the Underwriter
concerning the purchase of the Bonds by the Underwriter.
"Bonds" means, collectively, the Series 2005 Bonds, the Series 2005B Bonds, the Series
2009 Bonds, the Series 2012 Bonds, and any Additional Parity Bonds.
"Business Day" means any day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in the State are authorized or obligated by law or executive order to be
closed for business.
"Charter" means the Charter of the City of Aspen, adopted June 16, 1970, as amended.
"City" means the City of Aspen, Colorado, and any successor thereto.
"City Council"means the City Council of the City, and any successor body.
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4838-4505-1920.2
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder and applicable to the Series 2012 Bonds or the use of proceeds
thereof, unless the context clearly requires otherwise.
"Commitment" means, collectively, those certain offers, if any, to issue the Bond
Insurance Policy, designated as the Commitment, issued by the Bond Insurer.
"Defeasance Securities" means Permitted Investments that are bills, certificates of
indebtedness, notes, bonds or similar securities which are direct non-callable obligations of the
United States of America or which are fully and unconditionally guaranteed as to the timely
payment of principal and interest by the United States of America.
"Escrow Account" means the special account designated "Sales Tax Revenue Refunding
Bonds, Series 2012, Escrow Account" to be maintained by the Escrow Agent in accordance with
the Escrow Agreement and the provisions hereof entitled "Escrow Account."
"Escrow Agent" means UMB Bank, n.a., Denver, Colorado, in its capacity as escrow
agent under the Escrow Agreement, its successors and assigns.
"Escrow Agreement" means the Refunding Escrow Agreement between the City and the
Escrow Agent, relating to the deposit of funds thereunder for the purpose of defeasing the
Refunded Bonds.
"Event of Default"means any of the events specified in Section 24 hereof.
"Interest Payment Date" means any date on which a payment of principal of, premium,
if any, or interest on the Bonds is due pursuant to Section 3(c) hereof.
"Letter of Instructions" means the Letter of Instructions, dated the date of issuance of the
Series 2012 Bonds, delivered by Bond Counsel to the City, as it may be superseded or amended
in accordance with its terms.
"Moody's"means Moody's Investor Service and its successors.
"Ordinance" means this Ordinance, which authorizes the issuance of the Series 2012
Bonds, including any amendments or supplements hereto.
"Original Parks and Open Space Sales Tax" means the 1.0% Open Space Sales Tax
levied by the City pursuant to the Original Parks and Open Space Sales Tax Ordinance.
"Original Parks and Open Space Sales Tax Ordinance" means the City's Ordinance No.
16, Series of 1970.
"Outstanding"means, as of any date, all Bonds, except the following:
(a) any Bond cancelled by the City or the Paying Agent, or otherwise on the
City's behalf, at or before such date;
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4838-4505-1920.2
(b) any Bond held by or on behalf of the City;
(c) any Bond for the payment or the redemption of which moneys or
Defeasance Securities sufficient to meet all of the payment requirements of the principal
of, interest on, and any premium due in connection with the redemption of such Bond to
the date of maturity or any redemption date thereof, shall have theretofore been deposited
in trust for such purpose in accordance with Section 23 hereof, and
(d) any lost, apparently destroyed, or wrongfully taken Bond in lieu of or in
substitution for which another bond or other security shall have been executed and
delivered.
"Owner" means the Person or Persons in whose name or names a Series 2012 Bond is
registered on the registration books maintained by the Paying Agent pursuant hereto.
"Parks and Open Space Fund' means the City's Parks and Open Space Fund maintained
by the City pursuant to Section 23.32.060(c)(3) of the City's Municipal Code.
"Parks and Open Space Sales Tax" means, collectively, the Original Parks and Open
Space Sales Tax and the Additional Parks and Open Space Sales Tax.
"Parks and Open Space Sales Tax Ordinances" means, collectively the Original Parks
and Open Space Sales Tax Ordinance and the Additional Parks and Open Space Sales Tax
Ordinance.
"Paying Agent"means UMB Bank, n.a., and its successors in interest or assigns approved
by the City.
"Permitted Investments" means any investment which is permitted for investment of City
Funds by the Charter and all other applicable laws which are included on the following list:
(a) Cash (insured at all times by the Federal Deposit Insurance Corporation);
(b) Direct obligations of (including obligations issued or held in book entry
form on the books of)the Department of the Treasury of the United States of America;
(c) obligations of any of the following federal agencies which obligations
represent full faith and credit of the United States of America, including:
— Export - Import Bank
— Rural Economic Community Development Administration
— U.S. Maritime Administration
— Small Business Administration
U.S. Department of Housing & Urban Development(PHA's)
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4838-4505-1920.2
Federal Housing Administration
Federal Financing Bank;
(d) direct obligations of any of the following federal agencies which
obligations are not fully guaranteed by the full faith and credit of the United States of
America: senior debt obligations issued by the Federal National Mortgage Association
(FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC); obligations of the
Resolution Funding Corporation (REFCORP); senior debt obligations of the Federal
Home Loan Bank System; and senior debt obligations of other Government Sponsored
Agencies approved by Ambac;
(e) U.S. dollar denominated deposit accounts, federal funds and banker's
acceptances with domestic commercial banks which have a rating on their short-term
certificates of deposit on the date of purchase of"A 1" or "A 1+" by S&P and "P 1" by
Moody's and maturing no more than 360 days after the date of purchase, where ratings
on holding companies are not considered as the rating of the bank;
(f) commercial paper which is rated at the time of purchase in the single
highest classification, "A 1+" by S&P and "P 1" by Moody's, and which matures not
more than 270 days after the date of purchase;
(g) investments in a money market fund rated "AAAm" or "AAAm—G" or
better by S&P;
(h) pre-refunded municipal obligations defined as follows:
Any bonds or other obligations of any state of the United States of America or of any
agency, instrumentality or local governmental unit of any such state which are not
callable at the option of the obligor prior to maturity or as to which irrevocable
instructions have been given by the obligor to call on the date specified in the notice; and
(i) which are rated, based on an irrevocable escrow account or fund (the "escrow"), in the
highest rating category of S&P and Moody's or any successors thereto; or (ii)(A) which
are fully secured as to principal and interest and redemption premium, if any, by an
escrow consisting only of cash or obligations described in paragraph (a) above, which
escrow may be applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on the maturity date or
dates thereof or the specified redemption date or dates pursuant to such irrevocable
instructions, as appropriate; and (B) which escrow is sufficient, as verified by a nationally
recognized independent certified public accountant, to pay principal of and interest and
redemption premium, if any, on the bonds or other obligations described in this paragraph
on the maturity date or dates thereof or on the redemption date or dates specified in the
irrevocable instructions referred to above, as appropriate;
(i) municipal obligations rated "Aaa/AAA", or general obligations of states
with a rating of at least"A2/A", or higher by both Moody's and S&P; and
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4838-4505-1920.2
0) investment agreements and other forms of investments approved in
writing by the Bond Insurer.
"Person" means a corporation, firm, other body corporate, partnership, association or
individual and also includes an executor, administrator, trustee, receiver or other representative
appointed according to law.
"Pledged Revenues" means, for each fiscal year, all of the proceeds of the Parks and
Open Space Sales Tax after deduction of the reasonable and necessary costs and expenses of
collecting and enforcing the Parks and Open Space Sales Tax, if any.
"Project" means the purchase and improvement of trails, recreation and open space
properties and ancillary facilities, to the extent proceeds of the Series 2012 Bonds may be
expended to such purposes in accordance with the Ballot Question.
"Rebate Fund" means the City of Aspen, Colorado, Sales Tax Revenue Refunding
Bonds, Series 2012, Rebate Fund created in Section 10 hereof.
"Refunded Bond Requirements" means the principal, redemption premium, if any, and
interest due in connection with the Refunded Bonds, at maturity or upon prior redemption, as set
forth in the Escrow Agreement.
"Refunded Bonds" means such principal amounts and maturities of the Series 2005B
Bonds as are set forth and designated as the "Refunded Bonds" in the Sale Certificate, provided
that the aggregate principal amount thereof shall not exceed $5,500,000.
"Refunding Act" means the Public Securities Refunding Act codified in Article 56 of
Title 11, Colorado Revised Statutes, as amended.
"Reserve Fund" means, as the context requires, any one or more of the Series 2005
Reserve Fund, the Series 2005B Reserve Fund, the Series 2009 Reserve Fund, the Series 2012
Reserve Fund, and/or any reserve fund or funds established for Additional Parity Bonds.
"Reserve Fund Contract" has the meaning specified in Section 16(c)(i) hereof.
"Reserve Fund Requirement"means, as of any date on which it is calculated, with respect
to each series of Bonds, the least of (a) 10% of the principal amount of such series of Bonds,
(b)the maximum annual debt service in any calendar year on the Outstanding Bonds of such
series or (c) 125% of the average annual debt service on the Bonds of such series; provided,
however, that the Reserve Fund Requirement may be reduced if, in the opinion of Bond Counsel,
the funding or maintenance of it at the level otherwise determined pursuant to this definition will
adversely affect the exclusion from gross income tax for federal income tax purposes of interest
on any of the Bonds.
"Revenue Fund" means the "City of Aspen, Colorado, Parks and Open Space Sales Tax
Revenue Bonds Revenue Fund" which fund is reaffirmed as such pursuant to Section 10(b)
hereof.
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"Sale Certificate" means the certificate executed by the Sale Delegate under the
authority delegated pursuant to this Ordinance, which sets forth, among other things, the prices at
which the Bonds will be sold, the delivery date of the Bonds, interest rates and annual maturing
principal for the Bonds, as well as the dates on which the Bonds may be redeemed and the
redemption prices therefor, the identity of the Bond Insurer (if any), additional provisions
required by the Bond Insurer, including terms of the Commitment, and details regarding any
Series 2012 Surety Bond.
"Sale Delegate" means the City Manager or, in the City Manager's absence, the Finance
Director.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc., and its successors.
"Series 1999 Ordinance" means the City's Ordinance No. 31, Series of 1999, pursuant to
which the City of Aspen, Colorado, Sales Tax Revenue Bonds, Series 1999 were issued (all of
which were subsequently advance refunded with proceeds of the Series 2005 Bonds).
"Series 2005 Reserve Fund" means the Reserve Fund established for the Series 2005
Bonds pursuant to the Series 2005 Ordinance.
"Series 2005B Reserve Fund" means the Reserve Fund established for the Series 2005B
Bonds pursuant to the Series 2005B Ordinance.
"Series 2009 Reserve Fund" means the Reserve Fund established for the Series 2009
Bonds pursuant to the Series 2009 Ordinance.
"Series 2012 Reserve Fund" means the City of Aspen, Colorado, Sales Tax Revenue
Refunding Bonds, Series 2012, Reserve Fund created in Section 10(a)(ii) hereof.
"Series 2012 Reserve Policy Agreement" means the reserve policy agreement, if any,
with respect to the Series 2012 Bonds and the Series 2012 Surety Bond, between the City and the
Bond Insurer.
"Series 2012 Surety Bond" means the Reserve Fund Contract, if any, issued by the Bond
Insurer guaranteeing certain payments from the Series 2012 Reserve Fund with respect to the
Series 2012 Bonds.
"State"means the State of Colorado.
"Supplemental Act" means the Supplemental Public Securities Act codified in Part 2 of
Article 57 of Title 11, Colorado Revised Statutes, as amended.
"Underwriter" means Stifel Nicolaus & Company, Incorporated, the original purchaser
of the Bonds.
Section 2. Authorization and Purpose of Series 2012 Bonds. Pursuant to and in
accordance with the Constitution of the State, the Charter, the Supplemental Act and the
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4838-4505-1920.2
Refunding Act, the City hereby authorizes, and directs that there shall be issued, the "City of
Aspen, Colorado, Sales Tax Revenue Refunding and Improvement Bonds, Series 2012" in the
aggregate principal amount set forth in the Sale Certificate (the "Series 2012 Bonds") for the
purpose of funding the costs of the Project, refunding the Refunded Bonds, purchasing the Series
2012 Surety Bond (if any) or otherwise funding the Series 2012 Reserve Fund, and paying the
costs of issuance of the Series 2012 Bonds.
Section 3. Series 2012 Bond Details.
(a) Registered Form, Denominations, Original Dated Date and Numbering.
The Series 2012 Bonds shall be issued as fully registered_bonds_in the denominations set
forth in the Sale Certificate, shall be dated as of the date set forth in the Sale Certificate,
shall be consecutively numbered in the manner determined by the Paying Agent and shall
be registered in the names of the Persons identified in the registration books of the City
maintained by the Paying Agent.
(b) Maturity Dates, Principal Amounts and Interest Rates. The Series 2012
Bonds shall mature on November 1 of the years and in the principal amounts, and shall
bear interest at the rates per annum (calculated based on a 360-day year of twelve 30-day
months) set forth in the Sale Certificate.
(c) Accrual and Dates of Payment of Interest. Interest on the Series 2012
Bonds shall accrue at the rates set forth in the Sale Certificate from the later of the
original dated date or the latest interest payment date (or in the case of defaulted interest,
the latest date) to which interest has been paid in full and shall be payable on May 1 and
November 1 of each year, commencing on the date set forth in the Sale Certificate.
(d) Manner and Form of Payment. Principal of, premium, if any, and the
final installment of interest on each Series 2012 Bond shall be payable to the Owner
thereof upon presentation and surrender of such bond at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof. Interest
(other than the final installment of interest) on each Series 2012 Bond shall be payable by
check or draft of the Paying Agent mailed on the interest payment date to the Owner
thereof as of the close of business on the fifteenth day (whether or not such day is a
Business Day) of the month preceding the month in which the Interest Payment Date
occurs. All payments of the principal of, premium, if any, and interest on the Series 2012
Bonds shall be made in lawful money of the United States of America.
(e) Book-Entry Registration. Notwithstanding any other provision hereof,
the Series 2012 Bonds shall be delivered only in book-entry form registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"),New York, New
York, acting as securities depository of the Series 2012 Bonds and principal of, premium,
if any, and interest on the Series 2012 Bonds shall be paid by wire transfer to DTC;
provided, however, if at any time the Paying Agent determines, and notifies the City of
its determination, that DTC is no longer able to act as, or is no longer satisfactorily
performing its duties as, securities depository for the Series 2012 Bonds, the Paying
Agent may, at its discretion, either (i) designate a substitute securities depository for DTC
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4838-4505-1920.2
and reregister the Series 2012 Bonds as directed by such substitute securities depository
or (ii) terminate the book-entry registration system and reregister the Series 2012 Bonds
in the names of the beneficial owners thereof provided to it by DTC. Neither the City nor
the Paying Agent shall have any liability to DTC, Cede & Co., any substitute securities
depository, any Person in whose name the Series 2012 Bonds are reregistered at the
direction of any substitute securities depository, any beneficial owner of the Series 2012
Bonds or any other Person for (A) any determination made by the Paying Agent pursuant
to the proviso at the end of the immediately preceding sentence or (B) any action taken to
implement such determination and the procedures related thereto that is taken pursuant to
any direction of or in reliance on any information provided by DTC, Cede & Co., any
substitute securities depository or any Person in whose name the Series 2012 Bonds are
reregistered.
Section 4. Form of Series 2012 Bonds. The Series 2012 Bonds shall be in substantially
the form set forth in Appendix A hereto, with such changes thereto, not inconsistent herewith, as
may be necessary or desirable and approved by the officials of the City executing the same
(whose manual or facsimile signatures thereon shall constitute conclusive evidence of such
approval). Although attached as an appendix for the convenience of the reader, Appendix A is
an integral part of this Ordinance and is incorporated herein as if set forth in full in the body of
this Ordinance.
Section 5. Registration, Transfer and Exchange of Series 2012 Bonds. The Paying
Agent shall maintain registration books in which the ownership, transfer and exchange of Series
2012 Bonds shall be recorded. The Person in whose name any Series 2012 Bond shall be
registered on such registration books shall be deemed to be the absolute owner thereof for all
purposes, whether or not payment on any Series 2012 Bond shall be overdue, and neither the
City nor the Paying Agent shall be affected by any notice or other information to the contrary.
The Series 2012 Bonds may be transferred or exchanged, at the principal office of the Paying
Agent in the city identified in the definition of Paying Agent in Section 1 hereof, for a like
aggregate principal amount of Series 2012 Bonds of other authorized denominations of the same
maturity and interest rate, upon payment by the transferee of a transfer fee, any tax or
governmental charge required to be paid with respect to such transfer or exchange and any cost
of printing bonds in connection therewith. Upon surrender for transfer of any Series 2012 Bond,
duly endorsed for transfer or accompanied by an assignment duly executed by the Owner or his
or her attorney duly authorized in writing, the City shall execute and the Paying Agent shall
authenticate and deliver in the name of the transferee a new Series 2012 Bond.
Section 6. Replacement of Lost, Destroyed or Stolen Series 2012 Bonds. If any
Series 2012 Bond shall become lost, apparently destroyed, stolen or wrongfully taken, it may be
replaced in the form and tenor of the lost, destroyed, stolen or taken bond and the City shall
execute and the Paying Agent shall authenticate and deliver a replacement Series 2012 Bond
upon the Owner furnishing, to the satisfaction of the Paying Agent: (a)proof of ownership
(which shall be shown by the registration books of the Paying Agent), (b)proof of loss,
destruction or theft, (c) an indemnity to the City and the Paying Agent with respect to the Series
2012 Bond lost, destroyed or taken, and (d) payment of the cost of preparing and executing the
new bond or bonds.
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Section 7. Execution of Series 2012 Bonds. The Series 2012 Bonds shall be executed
in the name and on behalf of the City with the manual or facsimile signature of the Mayor or
Mayor Pro Tern of the City, shall bear a manual or facsimile of the seal of the City and shall be
attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk,
all of whom are hereby authorized and directed to prepare and execute the Series 2012 Bonds in
accordance with the requirements hereof. Should any officer whose manual or facsimile
signature appears on the Series 2012 Bonds cease to be such officer before delivery of any Series
2012 Bond, such manual or facsimile signature shall nevertheless be valid and sufficient for all
purposes. When the Series 2012 Bonds have been duly executed, the officers of the City are
authorized to, and shall, deliver the Series 2012 Bonds to the Paying Agent for authentication.
No Series 2012 Bond shall be secured by or entitled to the benefit of this Ordinance, or shall be
valid or obligatory for any purpose, unless the certificate of authentication of the Paying Agent
has been manually executed by an authorized signatory of the Paying Agent. The executed
certificate of authentication of the Paying Agent upon any Series 2012 Bond shall be conclusive
evidence, and the only competent evidence, that such Series 2012 Bond has been properly
authenticated and delivered hereunder.
Section 8. Redemption of Series 2012 Bonds Prior to Maturity.
(a) Optional Redemption. The Series 2012 Bonds shall be subject to
redemption at the option of the City, in whole or in part, and if in part in such order of
maturities as the City shall determine and by lot within a maturity, at a redemption price
of 100% of the principal amount so redeemed plus accrued interest to the redemption
date, on such dates as are set forth in the Sale Certificate.
(b) Mandatory Sinking Fund Redemption. The Series 2012 Bonds shall be
subject to mandatory sinking fund redemption by lot on November 1 of the years and in
the principal amounts specified in the Sale Certificate, at a redemption price equal to the
principal amount to be redeemed (with no redemption premium), plus accrued interest to
the redemption date.
If the Sale Certificate designates mandatory sinking fund redemption dates for the
Series 2012 Bonds, the City, at its option, to be exercised on or before the forty-fifth day
next preceding each sinking fund redemption date, may (i) purchase and cancel any
Series 2012 Bonds with the same maturity date as the Series 2012 Bonds subject to such
sinking fund redemption and(ii)receive a credit in respect of its sinking fund redemption
obligation for any Series 2012 Bonds with the same maturity date as the Series 2012
Bonds subject to such sinking fund redemption which prior to such date have been
redeemed (otherwise than through the operation of the sinking fund) and cancelled and
not theretofore applied as a credit against any sinking fund redemption obligation. Each
Series 2012 Bond so purchased and cancelled or previously redeemed shall be credited at
the principal amount thereof to the obligation of the City on such sinking fund
redemption date, and the principal amount of Series 2012 Bonds to be redeemed by
operation of such sinking fund on such date shall be accordingly reduced.
(c) Redemption Procedures. Notice of any redemption of Series 2012 Bonds
shall be given by sending a copy of such notice by first-class, postage prepaid mail, not
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less than 30 days prior to the redemption date, to the Owner of each Series 2012 Bond
being redeemed. Such notice shall specify the number or numbers of the Series 2012
Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any
Series 2012 Bond shall have been duly called for redemption and if, on or before the
redemption date, the City shall have set aside funds sufficient to pay the redemption price
of such Series 2012 Bond on the redemption date, then such Series 2012 Bond shall
become due and payable at such redemption date, and from and after such date interest
will cease to accrue thereon. Failure to deliver any redemption notice or any defect in
any redemption notice shall not affect the validity of the proceeding for the redemption of
Series 2012 Bonds with respect to which such failure or defect did not occur. Any Series
2012 Bond redeemed prior to its maturity by prior redemption or otherwise shall not be
reissued and shall be cancelled.
Section 9. Delivery of Series 2012 Bonds Upon Original Issuance. Prior to the
authentication and delivery by the Paying Agent of the Series 2012 Bonds in connection with
their original issuance there shall be filed with the Paying Agent (a) a certified copy of this
Ordinance and (b) a request and authorization to the Paying Agent on behalf of the City and
signed by the Mayor or Mayor Pro Tem to authenticate the Series 2012 Bonds and to deliver the
Series 2012 Bonds to the Underwriter or the Persons designated therein, upon payment to the
City of a sum specified in such request and authorization plus accrued interest thereon to the date
of delivery. Upon the authentication of the Series 2012 Bonds, the Paying Agent shall deliver
the same to the Underwriter or its designee as directed in such request and authorization.
Section 10. Creation and Reaffirmation of Funds and Accounts.
(a) There is hereby created by the City the following funds and accounts:
(i) the Series 2012 Rebate Fund, designated as the "City of Aspen,
Colorado, Sales Tax Revenue Refunding Bonds, Series 2012, Rebate Fund;" and
(ii) the Series 2012 Reserve Fund, designated as the "City of Aspen,
Colorado, Sales Tax Revenue Refunding Bonds, Series 2012, Reserve Fund."
(b) The following funds, originally created pursuant to Section 13 of the
Series 1999 Ordinance and renamed pursuant to Section 10(b) of the Series 2001
Ordinance, are hereby reaffirmed as follows:
(i) the Bond Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Bond Fund;" and
(ii) the Revenue Fund is hereby reaffirmed as the "City of Aspen,
Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund."
Section 11. Application of Proceeds of Series 2012 Bonds. The proceeds received by
the City from the sale of the Series 2012 Bonds shall be applied generally as set forth below, and
as more particularly provided in the Sale Certificate:
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4838-4505-1920.2
(a) to the Escrow Account, proceeds of the Series 2012 Bonds which are
sufficient to pay the Refunded Bond Requirements in accordance with the Escrow
Agreement; and
(b) to fund the Series 2012 Reserve Fund or to pay for the Series 2012 Surety
Bond (as determined by the Sale Delegate and set forth in the Sale Certificate); and
(c) to pay the costs of issuing the Series 2012 Bonds, including any premium
due with respect to a Bond Insurance Policy (if any); and
(d) the remainder shall be separately accounted for by the City to pay the
costs of the Project.
Section 12. Special Obligations; Pledge and Lien for Payment of Bonds.
(a) Series 2012 Bonds. The City hereby pledges the Pledged Revenues, the
Bond Fund, the Series 2012 Reserve Fund and the Revenue Fund for the payment of the
principal of, premium, if any, and interest on the Series 2012 Bonds at any time
Outstanding, and grants an irrevocable and first lien for such purpose on the Pledged
Revenues, the Bond Fund, the Series 2012 Reserve Fund and the Revenue Fund.
(b) Series 2009 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2009 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2009 Bonds at
any time Outstanding, and grants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the
Series 2009 Reserve Fund and the Revenue Fund. The lien of the Series 2009 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
the Series 2005 Bonds, the Series 2005B Bonds, the Series 2012 Bonds and any
Additional Parity Bonds.
(c) Series 2005B Bonds. The City hereby pledges the Pledged Revenues, the
Bond Fund, the Series 2005B Reserve Fund and the Revenue Fund for the payment of the
principal of, premium, if any, and interest on the Series 2005B Bonds at any time
Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive
such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2005B
Reserve Fund and the Revenue Fund. The lien of the Series 2005B Bonds on the Pledged
Revenues,the Bond Fund, and the Revenue Fund is on parity with the lien of the Series
2005 Bonds, the Series 2009 Bonds, the Series 2012 Bonds and any Additional Parity
Bonds.
(d) Series 2005 Bonds. The City hereby further pledges the Pledged
Revenues, the Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on the Series 2005 Bonds at
any time Outstanding, and grants an irrevocable and first lien (but not necessarily an
exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the
Series 2005 Reserve Fund and the Revenue Fund. The lien of the Series 2005 Bonds on
the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of
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4838-4505-1920.2
the Series 2005B Bonds, the Series 2009 Bonds, the Series 2012 Bonds and any
Additional Parity Bonds.
(e) Additional Parity Bonds. Subject to Section 13 hereof, the City also
hereby pledges the Pledged Revenues, the Bond Fund and the Revenue Fund for the
payment of the principal of, premium, if any, and interest on any Additional Parity Bonds
at any time Outstanding, and grants an irrevocable and first lien for such purpose on the
Pledged Revenues, the Bond Fund and the Revenue Fund.
(f) Equally and Ratably Secured. The Bonds shall be equally and ratably
secured by the pledge of and lien on the Pledged Revenues, the Bond Fund and the
Revenue Fund granted by this Section and shall not be entitled to any priority one over
the other in the application of Pledged Revenues or the moneys on deposit at any time in
the Bond Fund and the Revenue Fund.
(g) Superior Liens Prohibited. The City shall not pledge or create any other
lien on the revenues and moneys pledged pursuant to this Section that is superior to the
pledge thereof or lien thereon pursuant hereto.
(h) Subordinate Liens Permitted. Nothing herein shall prohibit the City from
pledging or creating a lien on the revenues and moneys pledged and the lien created
pursuant to subsections (a), (b) and (c) of this Section that is subordinate to the pledge
thereof or lien thereon pursuant to such subsections, provided that no such subordinate
pledge or lien shall be created unless and until there is delivered to the Paying Agent a
written certification by the Mayor that no Event of Default has occurred and is
continuing.
(i) No Prohibition on Additional Security. Nothing herein shall prohibit the
City from (i) using, pledging or granting a lien on any revenues from the Parks and Open
Space Sales Tax that are not Pledged Revenues or any other moneys for the payment of
the principal of, premium, if any, or interest on the Bonds or (ii) depositing any revenues
from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other
moneys into the Bond Fund or the Revenue Fund (and thereby subjecting the moneys so
deposited to the pledge made and lien granted by this Section).
0) Bonds are Special, Limited Obligations of the City. The Bonds are
special, limited obligations of the City payable solely from and secured solely by the
Pledged Revenues and the other sources specified in this Ordinance and shall not be
deemed or construed as creating a debt or indebtedness of the City within the meaning of
any constitutional or statutory limitation.
Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds
may be Outstanding:
(a) Limitations Upon Issuance of Additional Parity Bonds. Nothing in this
Ordinance shall be construed to prevent the issuance by the City of Additional Parity
Bonds (including refunding obligations) payable in whole or in part from the Pledged
Revenues (or any designated part thereof) and constituting a lien thereon on a parity with,
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4838-4505-1920.2
but not prior or superior to, the lien of the Series 2012 Bonds, the Series 2009 Bonds, the
Series 2005B Bonds, the Series 2005 Bonds and any previously issued Additional Parity
Bonds; provided, however, that before any such Additional Parity Bonds are authorized
or actually issued:
(i) The City is then current in all payments required to have been
accumulated in the Bond Fund, the Series 2012 Reserve Fund, the Series 2009
Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund,
and any reserve fund maintained with respect to any then Outstanding series of
Additional Parity Bonds, and there is not otherwise an Event of Default as defined
in Section 24 hereof.
(ii) The revenues derived from the entire Pledged Revenues for the
twelve consecutive calendar months immediately preceding the month of issuance
of such Additional Parity Bonds shall have been sufficient to pay an amount equal
to 150% of the combined maximum annual principal and interest requirements (to
and including the final maturity of each then-Outstanding series of Bonds) on the
then-Outstanding Bonds and on the Additional Parity Bonds then proposed to be
issued (including any reserve requirements therefor).
(iii) The ordinance authorizing such Additional Parity Bonds shall
require that a reserve fund for Additional Parity Bonds be created in an amount
equal to the Reserve Fund Requirement for such Additional Parity Bonds. The
City may, however, comply with the Reserve Fund Requirement through a
Reserve Fund Contract that meets the standards established in Section 16 hereof.
(b) Certificate of Revenues. A written certification by a certified public
accountant who is not a regular salaried employee of the City that such Pledged Revenues
are sufficient to pay the amounts required by paragraph (a)(ii) of this Section shall be
conclusively presumed to be accurate in determining the right of the City to authorize,
issue, sell and deliver Additional Parity Bonds.
(c) Subordinate Obligations Permitted. Nothing in this Ordinance shall be
construed to prevent the issuance by the City of additional obligations (including
refunding obligations) payable from the Pledged Revenues (or any designated part
thereof) and having a lien thereon subordinate or junior to the lien of the Bonds.
(d) Superior Obligations Prohibited. Nothing in this Ordinance shall be
construed to permit the City to issue additional obligations (including refunding
obligations)payable from the Pledged Revenues (or any designated part thereof) having a
lien thereon prior and superior to the lien of the Bonds.
(e) Refunding Obligations. The provisions of this Section are subject to the
following exception:
(i) Privilege of Issuing Refunding Obligations. If at any time after
any of the Bonds, or any part thereof, shall have been issued and remain
Outstanding, the City shall find it desirable to refund all or any part of the
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4838-4505-1920.2
Outstanding Bonds, such Bonds, or any part thereof, may be refunded (but only
with the consent of the Owner or Owners thereof, unless such Bonds, at the time
of their required surrender for payment, shall then mature, or shall then be subject
to redemption prior to maturity).
(ii) Limitations Upon Issuance of Parity Refunding Obligations. No
refunding obligations payable from the Pledged Revenues (or any designated part
thereof) shall be issued on a parity with the Series 2005 Bonds, the Series 2005B
Bonds, the Series 2009 Bonds, and the Series 2012 Bonds, unless:
(A) the lien on such Pledged Revenues of the outstanding
obligations so refunded is on a parity with the lien thereon of the Series
2005 Bonds, the Series 2005B Bonds, the Series 2009 Bond_s and the
Series 2012 Bonds; or
(B) the refunding obligations are issued in compliance with
subsection (a) of this Section.
(iii) Partial Refunding of Bonds. Any refunding obligations so issued
to refund any of the Bonds shall enjoy complete equality of lien with any Bonds
which are not refunded.
(iv) Limitations Upon Refundings. Any refunding obligations payable
from the Pledged Revenues may be issued with such details as the City may by
ordinance provide, but without any impairment of any contractual obligations
imposed upon the City by this Ordinance.
Section 14. Application of Pledged Revenues. So long as any of the Bonds shall
remain Outstanding, all Pledged Revenues, as they are received, shall be transferred from the
Parks and Open Space Fund or any other funds or accounts to which they are required to be
deposited by the Section 23-32-060(c)(7) of the City's Municipal Code or otherwise, and shall
thereupon be deposited into the Revenue Fund, and the Pledged Revenues are hereby
appropriated for such purpose. Moneys on deposit in the Revenue Fund shall be transferred from
the Revenue Fund and applied to the following purposes and in the following order of priority:
(a) FIRST, there shall be credited to the Bond Fund an amount necessary,
together with any moneys therein and available therefor, to pay the next due installment
of principal of, premium, if any, and interest on the Bonds;
(b) SECOND, there shall be credited, on a pro rata basis, to the Series 2012
Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund, the Series
2001 Reserve Fund and any reserve fund or funds created with respect to any series of
Additional Parity Bonds.an amount, if any, necessary to increase the amount on deposit
in each of such funds to the Reserve Fund Requirement for such fund or to repay the
provider of a Reserve Fund Contract for a drawing thereon. No payment need be made
into any such fund so long as the moneys therein shall equal not less than the Reserve
Fund Requirement for such fund and no draw has been made on any Reserve Fund
Contract deposited in such fund. The Reserve Fund Requirement for each such fund
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4838-4505-1920.2
shall be accumulated and maintained in each such fund as a continuing reserve to be
used, except as hereinafter provided, only to prevent deficiencies in the payment of the
principal of, premium, if any, and interest on the Bonds.
(c) THIRD, there shall be credited to the Parks and Open Space Fund or,
subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances
and the City's Municipal Code, used in any lawful manner by the City, any amounts
remaining after making the deposits required by subsections (a) and (b) of this Section.
(d) Notwithstanding subsections (a) and (b) of this Section, no payment need
be made pursuant to subsection (a) or (b) of this Section into either the Bond Fund, the
Series 2012 Reserve Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve
Fund, the Series 2005 Reserve Fund or any reserve fund created for a series of Additional
Parity Bonds if the moneys on deposit in such funds total a sum at least equal to the entire
amount of the Outstanding Bonds as to any principal, premium, if any, and interest
requirements, to their respective maturities, or to any redemption date on which the City
shall have exercised its option to redeem all or a portion of the Bonds then Outstanding
and thereafter maturing, and both accrued and not accrued, in which case moneys in such
funds in an amount at least equal to such principal, premium, if any, and interest
requirements shall be used solely to pay such as the same accrue, and any moneys in
excess thereof in such funds may, subject to any limitations in the Parks and Open Space
Sales Tax Ordinances or the City's Municipal Code, be used in any lawful manner by the
City.
Section 15. Bond Fund. Moneys in the Bond Fund shall be used solely for the purpose
of paying the principal of, premium, if any, and interest on the Bonds.
Section 16. Series 2012 Reserve Fund.
(a) Use of Moneys in Series 2012 Reserve Fund. If on any date specified in
Section 19 hereof, the City shall have for any reason failed to pay to the Paying Agent the
full amount required to pay the next installment of principal of or interest on the Bonds,
then an amount equal to the amount needed to bring the amount in the Bond Fund to the
full amount so required shall be immediately paid, pro rata, to the Paying Agent from: (i)
the Series 2012 Reserve Fund with respect to the portion of the deficiency corresponding
to the amounts due on the Series 2012 Bonds; (ii) the Series 2009 Reserve Fund with
respect to the portion of the deficiency corresponding to the amounts due on the Series
2009 Bonds; (iii) the Series 2005B Reserve Fund with respect to the portion of the
deficiency corresponding to the amounts due on the Series 2005B Bonds; (iv) the Series
2005 Reserve Fund with respect to the portion of the deficiency corresponding to the
amounts due on the Series 2005 Bonds; and (v) any reserve fund or funds created with
respect to any series of Additional Parity Bonds with respect to the portion of the
deficiency corresponding to the amounts due on such series of Additional Parity Bonds.
The money so used shall be replaced in the Series 2012 Reserve Fund, the Series 2009
Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund and any
such other reserve fund or funds on a pro rata basis from the first Pledged Revenues
thereafter received not required to be otherwise applied hereunder, but excluding any
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4838-4505-1920.2
payments required for any subordinate obligations. If in any period the City shall for any
reason fail to pay into the Series 2012 Reserve Fund, the Series 2009 Reserve Fund, the
Series 2005B Reserve Fund, the Series 2005 Reserve Fund or any such other reserve fund
or funds the full amount above stipulated from the Pledged Revenues, the difference
between the amount paid and the amount so stipulated shall in a like manner be deposited
therein from the first Pledged Revenues thereafter received not required to be applied
otherwise by this Section, but excluding any payments required for any subordinate
obligations. Moneys in the Series 2012 Reserve Fund, the Series 2009 Reserve Fund, the
Series 2005B Reserve Fund, the Series 2005 Reserve Fund and any such other reserve
fund shall be used solely for the purpose of paying the principal of, premium, if any, and
interest on the series of Bonds with respect to which such fund is maintained.
(b) Use of Moneys in Excess of Reserve Fund Requirement Any moneys at
any time in excess of the Reserve Fund Requirement in the Series 2012 Reserve Fund,
the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve
Fund or any reserve fund or funds maintained with respect to any series of Additional
Parity Bands may be withdrawn therefrom and, subject to any limitation in the Charter,
the Parks and Open Space Sales Tax Ordinances and the City's Municipal Code, used in
any lawful manner by the City.
(c) Reserve Fund Contract.
(i) The City may substitute for the cash or Permitted Investments in
any Reserve Fund a surety bond issued by entity rated at least "A" by S&P (a
"Reserve Fund Contract"), so long as the amount on deposit in any Reserve Fund
after such substitution is at least equal to the Reserve Fund Requirement
applicable to such Reserve Fund. In the event the City shall substitute a Reserve
Fund Contract for the cash or Permitted Investments in any Reserve Fund, the
amount on deposit in any Reserve Fund shall be that amount available to be
drawn or otherwise paid pursuant to such surety bond at the time of calculation.
If any Reserve Fund shall include both cash or Permitted Investments and a
Reserve Fund Contract, the cash and Permitted Investments shall be used before
any demand is made on any Reserve Fund Contract. Notwithstanding the
foregoing, prior to such substitution, the City must receive an opinion of
nationally recognized municipal bond counsel to the effect that such substitution
and the intended use by the City of the cash or Permitted Investments to be
released from any Reserve Fund will not adversely affect the exclusion from gross
income for federal income tax purposes of interest on the Bonds to which such
Reserve Fund applies.
(ii) The Series 2012 Surety Bond (if any) is hereby recognized to be a
Reserve Fund Contract described in paragraph (i) of this subsection (c). Upon
issuance thereof by the Bond Insurer, the Series 2012 Surety Bond (if any) shall
be deposited in the Series 2012 Reserve Fund and shall be used in the manner
described in paragraph(i) of this subsection (c).
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(d) Valuation of Deposits. Cash shall satisfy the Reserve Fund Requirement
for the Series 2012 Reserve Fund by the amount of cash on deposit. Permitted
Investments shall satisfy the Reserve Fund Requirement by the value of such
investments. The value of each Permitted Investment on deposit in Series 2012 Reserve
Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005
Reserve Fund and any reserve fund or funds created with respect to any series of
Additional Parity Bonds shall be (i) its purchase price from the date of purchase until the
first date thereafter on which the Reserve Fund Requirement is calculated pursuant to
subsection (e) of this Section and (ii) following each date on which the Reserve Fund
Requirement is calculated pursuant to subsection(e) of this Section until the next date on
which the Reserve Fund Requirement is so calculated, its fair market value determined as
of such calculation date. A Reserve Fund Contract shall satisfy the Reserve Fund
Requirement by the amount payable to the City pursuant to such contract.
(e) Calculation of Reserve Fund Requirement and Transfers Resulting
from Calculation. The Reserve Fund Requirement for each of the Series 2012 Reserve
Fund, the Series 2009 Reserve Fund, the Series 2005B Reserve Fund, the Series 2005
Reserve Fund and any reserve fund or funds created with respect to any series of
Additional Parity Bonds shall be calculated as of (i)the date of issuance of the Series
2012 Bonds, (ii) the date of issuance of each series of Additional Parity Bonds and
(iii) each November 1, commencing November 1, 2013. If, on any calculation date, the
amount on deposit in any of such funds is less than the Reserve Fund Requirement for
such fund, Pledged Revenues shall be deposited into such fund as provided in Section 14
hereof to the extent necessary to satisfy the Reserve Fund Requirement in cash or by the
purchase of Permitted Investments or a Reserve Fund Contract.
Section 17. Escrow Account.
(a) Establishment and Maintenance of Escrow Account. There is hereby
authorized and directed to be established pursuant to the terms of the Escrow Agreement
a special account designated as the "Sales Tax Revenue Refunding Bonds, Series 2012,
Escrow Account," which shall be maintained in accordance with the provisions hereof
and of the Escrow Agreement. The Escrow Account shall be maintained in an amount at
the time of the initial deposits therein and at all times subsequently at least sufficient,
together with the known minimum yield to be derived from the initial investment and any
temporary reinvestment of the deposits therein or any part thereof in Federal Securities to
pay the Refunded Bond Requirements with respect to the Refunded Bonds. Except as
may be otherwise provided in the Escrow Agreement, the City shall have no right or title
to the moneys credited to or held in the Escrow Account, and such title shall be and is
hereby transferred to the Escrow Agent in trust for the payment of the Refunded Bond
Requirements for the Refunded Bonds pursuant to the Escrow Agreement. Moneys shall
be withdrawn by the Escrow Agent from the Escrow Account in sufficient amounts and
at such times to permit the payment without default of the Refunded Bond Requirements
for the Refunded Bonds. If for any reason the amount in the Escrow Account shall at any
time be insufficient for the purpose hereof, the City shall forthwith from the first moneys
available therefor deposit in such account such additional moneys as shall be necessary to
permit the payment in full of the Refunded Bond Requirements for the Refunded Bonds.
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(b) Call of Refunded Bonds. The City Council does hereby declare its intent
to exercise on behalf of and in the name of the City its option to redeem all of the
Refunded Bonds on the earliest date on which the Refunded Bonds can be called and
redeemed. The City hereby authorizes and irrevocably instructs the Escrow Agent, in its
capacity as paying agent for the Refunded Bonds, to give or cause to be given a notice of
refunding, defeasance and redemption of the Refunded Bonds in accordance with the
provisions of the Series 2005B Ordinance.
Section 18. Rebate Fund. The City shall deposit earnings from the investment of
proceeds of the Series 2012 Bonds, earnings from the investment of moneys on deposit in the
Bond Fund, the Series 2012 Reserve Fund and the Revenue Fund or other legally available
moneys in the Rebate Fund in the amounts and at the times provided in the Letter of Instructions.
Earnings from the investment of moneys on deposit in the Rebate Fund shall be retained in the
Rebate Fund. Moneys on deposit in the Rebate Fund shall be used as provided in the Letter of
Instructions.
Section 19. Payments to and by Paying Agent.
(a) Payments to Paying Agent. No later than the Business Day immediately
preceding each Interest Payment Date, the City shall deliver moneys to the Paying Agent
in an amount sufficient to pay the principal of, premium, if any, and interest on the Bonds
on such date from the sources and in the priority order set forth below:
First, from moneys on deposit in the Bond Fund; and
Second, if and to the extent the moneys on deposit in the Bond Fund are
not sufficient to pay the principal of, premium, if any, or interest due on the
Bonds on such date, from the Series 2012 Reserve Fund, the Series 2009 Reserve
Fund, the Series 2005B Reserve Fund, the Series 2005 Reserve Fund and any
reserve fund maintained with respect to any series of Additional Parity Bonds, on
a pro rata basis, pursuant to Section 16 hereof.
(b) Payments by Paying Agent. The Paying Agent shall use the moneys
delivered to it pursuant to subsection (a) of this Section to pay the principal of, premium,
if any, and interest on the Bonds when due.
Section 20. General Administration of Funds. The funds and accounts established
pursuant to this Ordinance, with the exception of the Rebate Fund, shall be administered as
follows, subject to the limitations stated in Sections 16 and 21 of this Ordinance:
(a) Investment of Money. Any moneys in any such fund and account may be
invested in Permitted Investments. The obligations in which moneys in each fund or
account are invested shall be deemed at all times to be part of the respective fund or
account, and any appreciation or loss resulting therefrom shall be recorded to such fund
or account. Interest accruing on the investment of any moneys in the Series 2012
Reserve Fund shall be deposited as received into the Revenue Fund, and interest accruing
on the investment of any moneys in any other such fund or account shall be credited to
the fund or account from which it is derived. The City Finance Director shall present for
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redemption or sale in the prevailing market any obligations so purchased as an
investment of moneys in the fund or account whenever it shall be necessary to do so in
order to provide moneys to meet any payment or transfer from said fund or account.
(b) Deposits of Funds. The moneys and investments comprising each of such
funds and accounts shall be deposited in one or more banks or savings and loans
associations, each of which is a member of the Federal Deposit Insurance Corporation.
Each payment shall be made into and credited to the proper fund or account on the date
specified, but if such date shall be other than a Business Day, such payment shall be
made on the next preceding Business Day. Nothing herein shall prevent the
establishment of one or more such bank accounts, for all of such funds and accounts, or
shall prevent the combination of such funds and accounts with any other bank account or
accounts for other accounts of the City.
Section 21. Additional General Covenants. In addition to the other covenants of the
City contained herein, the City hereby further covenants for the benefit of Owners of the Bonds
that:
(a) Payment of Series 2012 Bonds. The City will promptly pay or cause to
be paid the principal of, premium, if any, and interest on the Series 2012 Bonds, at the
place, on the dates and in the manner provided in this Ordinance, according to the true
intent and meaning of this Ordinance.
(b) No Repeal or Modification of Parks and Open Space Sales Tax
Ordinances or Applicable Sections of City's Municipal Code. The City shall not repeal
the Parks and Open Space Sales Tax Ordinances or adopt any modification of such
ordinances or any provisions of the City's Municipal Code which would impair the
Pledged Revenues.
(c) Duty to Impose Open Space Sales Tax. If the Parks and Open Space Sales
Tax Ordinances, the provisions of the City's Municipal Code referred to in subsection (b)
of this Section or any modifying or supplemental instrument thereto not contravening the
limitations of subsection (b) of this Section, or any part of such ordinances or such
portions of the City's Municipal Code, shall ever be held to be invalid or unenforceable
or shall otherwise be terminated, it shall be the duty of the City, to the extent possible
under then existing law, to adopt immediately such ordinances, to seek such voter
approval, if any, as may then be required by law, or to take any other action necessary to
produce at least the same amount of Pledged Revenues as would have otherwise been
produced under the terms of such ordinances and such portions of the City's Municipal
Code. Notwithstanding the foregoing, it is hereby acknowledged that: (i) the Additional
Parks and Open Space Sales Tax terminates on December 31, 2025, (ii) the City shall
have no obligation to seek an extension or replacement thereof after such date or to
otherwise take action to produce the amount of Pledged Revenues that would otherwise
be received from a 0.5% sales tax after such date, and (iii) in the event that an extension
or replacement of such 0.5%portion of the Parks and Open Spaces Sales tax is authorized
and imposed, such extension or replacement shall not constitute Additional Parks and
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Open Spaces Sales Tax for purposes of this Ordinance and the proceeds of any such
extension or replacement thereof shall not constitute Pledged Revenues hereunder.
(d) Impairment of Contract. The City agrees that any law, ordinance or
resolution of the City in any manner affecting the Pledged Revenues or the Bonds, shall
not be repealed or otherwise directly or indirectly modified in such a manner as to impair
any Bonds Outstanding, unless in the case of this Ordinance the required consent of the
Owners of the then Outstanding Bonds is obtained pursuant to Section 26 of this
Ordinance.
(e) Records. So long as any of the Bonds remain Outstanding, proper books
of record and account will be kept by the City, separate and apart from all other records
and accounts, showing complete and correct entries of all transactions relating to the
Pledged Revenues. The Owners of any Bonds shall have the right at any reasonable time
to inspect such records and accounts.
(f) Audits. The City further agrees that it will, within 180 days following the
close of each fiscal year, cause an audit of such books and accounts to be made by an
independent certified public accountant, showing the revenues and expenditures of the
Pledged Revenues. The City agrees to furnish forthwith a copy of each such audit to the
Owner of any Bond at his request, and without request to the Original Purchaser. Any
such Owner shall have the right to discuss with the accountant or person making the audit
its contents and to ask for such additional information as he may reasonably require.
(g) Extending Interest Payments. In order to prevent any accumulation of
claims for interest after maturity, the City will not directly or indirectly extend or assent
to the extension of time for the payment of any claim for interest on any of the Bonds and
it will not directly or indirectly be a party to or approve any such arrangement; and in
case the time for payment of any interest shall be extended, such installment or
installments of interest after such extension or arrangement shall not be entitled in case of
default hereunder to the benefit or security of this Ordinance except subject to the prior
payment in full of the principal of all Bonds and then Outstanding, and of matured
interest on such Bonds, the payment of which has not been extended.
(h) Performing Duties. The City will faithfully and punctually perform all
duties with respect to the Pledged Revenues required by the Charter and the Constitution
and laws of the State of Colorado, and the ordinances and resolutions of the City,
including but not limited to, the proper segregation of the Pledged Revenues and their
application to the respective funds.
(i) Other Liens. Other than that granted for the Bonds herein, there are
presently no other liens or encumbrances of any nature whatsoever on or against the
Pledged Revenues.
0) City's Existence. The City will maintain its corporate identity and
existence so long as any of the Bonds remain Outstanding, unless another body corporate
and politic by operation of law succeeds to the duties, privileges, powers, liabilities,
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disabilities, immunities and rights of the City and is obligated by law to receive and
distribute the Pledged Revenues in place of the City, without affecting to any substantial
degree the privileges and rights of any Owner of any Outstanding Bond.
Section 22. Covenants Regarding Exclusion of Interest on Series 2012 Bonds from
Gross Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on
the Series 2012 Bonds is and remains excluded from gross income for federal income tax
purposes, the City hereby covenants that:
(a) Prohibited Actions. The City will not use or permit the use of any
proceeds of the Series 2012 Bonds or any other funds of the City from whatever source
derived, directly or indirectly, to acquire any securities or obligations and shall not take
or permit to be taken any other action or actions, which would cause any Series 2012
Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code, or would
otherwise cause the interest on any Series 2012 Bond to be includible in gross income for
federal income tax purposes.
(b) Affirmative Actions. The City will at all times do and perform all acts
permitted by law that are necessary in order to assure that interest paid by the City on the
Series 2012 Bonds shall not be includible in gross income for federal income tax
purposes under the Code or any other valid provision of law. In particular, but without
limitation, the City represents, warrants and covenants to comply with the following rules
unless it receives an opinion of Bond Counsel stating that such compliance is not
necessary: (i) gross proceeds of the Series 2012 Bonds will not be used in a manner that
will cause the Series 2012 Bonds to be considered "private activity bonds" within the
meaning of the Code; (ii)the Series 2012 Bonds are not and will not become directly or
indirectly "federally guaranteed"; and (iii)the City will timely file Internal Revenue
Form 8038-G which shall contain the information required to be filed pursuant to
Section 149(e) of the Code.
(c) Letter of Instructions. The City will comply with the Letter of
Instructions, including but not limited by the provisions of the Letter of Instructions
regarding the application and investment of Series 2012 Bond proceeds, the calculations,
the deposits, the disbursements, the investments and the retention of records described in
the Letter of Instructions; provided that, in the event the original Letter of Instructions is
superseded or amended by a new Letter of Instructions drafted by, and accompanied by
an opinion of, Bond Counsel stating that the use of the new Letter of Instructions will not
cause the interest on the Series 2012 Bonds to become includible in gross income for
federal income tax purposes, the City will thereafter comply with the new Letter of
Instructions.
(d) Designation of Bonds as Qualified Tax-Exempt Obligations. The City
hereby designates the Series 2012 Bonds as qualified tax-exempt obligations within the
meaning of Section 265(b)(3) of the Code. The City covenants that the aggregate face
amount of all tax-exempt obligations issued by the City, together with governmental
entities which derive their issuing authority from the City or are subject to substantial
control by the City, shall not be more than $10,000,000 during calendar year 2012. The
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City recognizes that such tax-exempt obligations include notes, leases, loans and
warrants, as well as bonds. The City further recognizes that any bank, thrift institution or
other financial institution that owns the Series 2012 Bonds will rely on the City's
designation of the Series 2012 Bonds as qualified tax-exempt obligations for the purpose
of avoiding the loss of 100% of any otherwise available interest deduction attributable to
such institution's tax-exempt holdings.
Section 23. Defeasance. Any Series 2012 Bond shall not be deemed to be Outstanding
hereunder if it shall have been paid and cancelled or if cash or Defeasance Securities shall have
been deposited in trust for the payment thereof (whether upon or prior to the maturity of such
Series 2012 Bond, but if such Series 2012 Bond is to be paid prior to maturity, the City shall
have given the Paying Agent irrevocable directions to give notice of redemption as required by
this Ordinance, or such notice shall have been given in accordance with this Ordinance). In
computing the amount of the deposit described above, the City may include interest to be earned
on the Defeasance Securities. If less than all the Series 2012 Bonds are to be defeased pursuant
to this Section, the City, in its sole discretion, may select which of the Series 2012 Bonds shall
be defeased.
Notwithstanding anything in this Bond Ordinance to the contrary, in the event that the
principal and/or interest due on the Series 2012 Bonds shall be paid by the Bond Insurer pursuant
to the Bond Insurance Policy, the Series 2012 Bonds shall remain Outstanding for all purposes,
not be defeased or otherwise satisfied and not be considered paid by the City, and the assignment
and pledge of the Pledged Revenues and all covenants, agreements and other obligations of the
City to the Owners shall continue to exist and shall run to the benefit of the Bond Insurer, and the
Bond Insurer shall be subrogated to the rights of such Owners.
Section 24. Events of Default. If any of the following events occurs, it is hereby
declared to constitute an Event of Default:
(a) default in the due and punctual payment of the principal of, premium, if
any, or interest on any Bond whether at maturity thereof, or upon proceedings for
redemption thereof; or
(b) the City is for any reason rendered incapable of fulfilling its obligations
hereunder; or
(c) default in the due and punctual performance of the City's covenants or
conditions, agreements and provisions as set forth in this Ordinance, other than those
delineated in paragraphs (a) and (b) of this Section, and such default has continued for 60
days after written notice specifying the default and requiring the same to be remedied has
been given to the City by the Owners of 25% in principal amount of the Bonds then
Outstanding; or
(d) the City shall file a petition for bankruptcy or shall be declared insolvent
by a court of competent jurisdiction.
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Section 25. Remedies for and Duties Upon Events of Default.
(a) Remedies for Events of Default. Upon the happening and continuance of
any of the Events of Default as provided in Section 24 of this Ordinance, then and in
every case, the Owner or Owners of not less than 25% in principal amount of the Bonds
then Outstanding, including but not limited to, a trustee or trustees therefor, may proceed
against the City and its agents, officers and employees, to protect and enforce the rights
of any Owner of Bonds under this Ordinance by mandamus or other suit, action or special
proceedings in equity or at law, in any court of competent jurisdiction, either for the
specific performance of any covenant or agreement contained herein or in an award of
execution of any power herein granted for the enforcement of any proper legal or
equitable remedy as such Owner or Owners may deem most effectual to protect and
enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful
or in violation of any right of any Owner, or to require the governing body to act as if it
were the trustee of an express trust, or any combination of such remedies. All such
proceedings at law or in equity shall be instituted, had and maintained for the equal
benefit of all Owners of the Bonds then Outstanding. The failure of any such Owner so
to proceed shall not relieve the City or any of its officers, agents or employees of any
liability for failure to perform any duty. Each right or privilege of any such Owner (or
trustee thereof) is in addition and cumulative to any other right or privilege, and the
exercise of any right or privilege by or on behalf of any Owner shall not be deemed a
waiver of any other right or privilege thereof.
(b) Duties Upon Events of Default. Upon the happening of any of the Events
of Default as provided in Section 24 of this Ordinance, the City will do and perform all
proper acts on behalf of and for the Owners of the Bonds to protect and preserve the
security created for the payment of their Bonds and to insure the payment of the principal
of, premium, if any, and interest on Bonds promptly as the same become due. All
proceeds derived from the Pledged Revenues, during such period of default and so long
as any of the Bonds, as to any principal, premium, if any, and interest are Outstanding
and unpaid, shall be paid into the Bond Fund, and used for the purposes herein provided.
In the event the City fails or refuses to proceed as provided in this Section, the Owner or
Owners of not less than 25% in principal amount of the Bonds then Outstanding, after
demand in writing, may proceed to protect and enforce the rights of the Owners as herein
provided.
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Section 26. Amendment of Ordinance. This Ordinance may be amended or
supplemented by ordinance adopted by the City Council in accordance with law, without receipt
by the City of additional considerations and without the consent of the Owners, to make any
amendment or supplement to this Ordinance which, in the opinion of Bond Counsel, is not to the
material prejudice of the Owners. This Ordinance may be amended or supplemented by
ordinance adopted by the City Council in accordance with law, without receipt by the City of any
additional consideration, but with the written consent of the Owners of 66-2/3% of the Bonds
Outstanding at the time of the adoption of the amendatory ordinance, excluding any Bonds held
for the account of the City; provided, however, that no such ordinance, without the consent of the
Owners of all Outstanding Bonds which will be adversely affected, shall have the effect of
permitting:
(a) an extension of the maturity of any Bond; or
(b) a reduction in the principal amount of any Bond, the rate of interest
thereon, or the premium payable thereon; or
(c) the creation of a lien upon or pledge of Pledged Revenues ranking prior to
the lien or pledge of Pledged Revenues created by this Ordinance; or
(d) a reduction of the principal amount of Bonds required for consent to such
amendatory or supplemental ordinance; or
(e) the establishment of priorities as between Bonds issued and Outstanding
under the provisions of this Ordinance; or
(f) the modification of or otherwise affecting the rights of the Owners of less
than all of any series of Bonds then Outstanding.
Section 27. Appointment and Duties of Paying Agent.
(a) The Paying Agent identified in Section 1 hereof is hereby appointed as
paying agent, registrar and authenticating agent for the Series 2012 Bonds unless and
until the City or the Bond Insurer removes it as such and appoints a successor Paying
Agent, in which event such successor shall, subject to subsection (b) of this Section,
automatically succeed to the duties of the Paying Agent hereunder and its predecessor
shall immediately turn over all its records regarding the Series 2012 Bonds to such
successor. The Paying Agent, by accepting its duties as such, agrees to perform all duties
and to take all actions assigned to it hereunder in accordance with the terms hereof.
(b) Any successor Paying Agent appointed as such pursuant to subsection (a)
of this Section must: (i) be a trust company or bank in good standing located in or
incorporated under the laws of the State; (ii) be duly authorized to exercise trust powers
and subject to examination by federal or State authority; (iii) have a capital and surplus at
the time of such appointment of not less than $75,000,000; and (iv) be acceptable to the
Bond Insurer.
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(c) Notwithstanding any other provision of this Ordinance, no removal,
resignation or termination of the Paying Agent shall take effect until a successor,
acceptable to the Bond Insurer, shall be appointed.
Section 28. Parties Interested Herein. Nothing in this Ordinance expressed or implied
is intended or shall be construed to confer upon, or to give or grant to, any person or entity, other
than the City, the Paying Agent, the Bond Insurer and the Owners of the Bonds, any right,
remedy or claim under or by reason of this Ordinance or any covenant, condition or stipulation
hereof, and all covenants, stipulations, promises and agreements in this Ordinance contained by
and on behalf of the City shall be for the sole and exclusive benefit of the City, the Paying
Agent, the Bond Insurer and the Owners of the Bonds.
Section 29. Events Occurring on Days That Are Not Business Days. Except as
otherwise specifically provided herein with respect to a particular payment, event or action, if
any payment to be made hereunder or any event or action to occur hereunder which, but for this
Section, is to be made or is to occur on a day that is not a Business Day shall instead be made or
occur on the next succeeding day that is a Business Day.
Section 30. Findings and Determinations. The City Council hereby finds, determines
and declares that:
(a) it is in the best interest of the City and its residents that the Series 2012 Bonds
be authorized, sold, issued and delivered at the time, in the manner and for the purposes
provided herein;
(b) all actions required by the Charter and any other applicable law to be taken
by the City for the issuance of the Series 2012 Bonds and the application of any of the
provisions hereof have been taken by the City;
(c) the interest rate on the Series 2012 Bonds as sold to the Underwriter, shall
be a lower interest rate than the interest rate on the Refunded Bonds; therefore, the Series
2012 Bonds are issued to refinance City bonded debt at a lower interest rate for the
purposes of TABOR and the Refunding Act;
(d) the issuance of the Series 2012 Bonds will not cause the City to exceed its
debt limit under the Charter or applicable State law;
(e) the issuance of the Series 2012 Bonds and all procedures undertaken
incident thereto are in full compliance and conformity with all applicable requirements,
provisions and limitations prescribed by the Constitution and laws of the State and the
City, including the Charter, and all conditions and limitations of the Charter and other
applicable law relating to the issuance of the Series 2012 Bonds have been satisfied;
(f) the refunding of the Refunded Bonds with proceeds of the Series 2012
Bonds will, in accordance with Section 11-56-104(1), Colorado Revised Statutes, as
amended, accomplish one or more of the following purposes: (i) reducing the net
effective interest rate on the City's bonds (based on a comparison of the net effective
interest rate on the Refunded Bonds to the net effective interest rate on the Series 2012
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Bonds); (ii) reducing total interest payable over the life of the City's bonds, by issuing
bonds of a shorter term, or at a lower net interest cost, or having a lower net effective
interest rate than the Refunded Bonds; (iii) reducing the total principal and interest
payable on the Refunded Bonds or the principal and interest payable thereon in any
particular year or years, or(iv) effecting other economies;
(g) in accordance with Section 11-56-107, C.R.S., the principal amount of the
Series 2012 Bonds allocable to the refunding of the Refunded Bonds, when combined
with the Series 2005B Bonds outstanding principal amount which is not being refunded
will not exceed the total original authorized principal amount of the Series 2005B Bonds,
and the remaining principal amount of the Series 2012 Bonds will not exceed the
principal amount of debt authorization remaining under the Ballot Question; and
(h) as required by Section 11-56-104.5, Colorado Revised Statutes, as
amended: (i) the Underwriter, simultaneously with the submission to the City of its
proposal to refund the Refunded Bonds, disclosed, in writing, to the City Council, the
entire income, from all sources, which it anticipated receiving if its proposal were to be
accepted, specifying all such sources and amounts, as well as disclosing all expenses
which it anticipated the City would incur as a part of the refunding transaction; (ii) the
City Council will require, as a condition to the issuance of the Series 2012 Bonds, that the
Underwriter provide to the City Council (A) an update of the information described in
clause (i) above and (B) a comparison of annual debt service requirements before and
after the refunding, by year and amount, including funds which are required in addition to
bond proceeds, showing the present value of all annual differences in debt service
requirements, using as a discount factor the net effective interest rate of the Series 2012
Bonds, all computed from the date on which the transaction is closed, including funds
provided by the City as a reduction of, or an addition to, debt service requirements and
showing funds provided by the City in excess of accrued principal and interest, and
earnings on the funds, over the life of, and compounded at the net effective interest rate
of, the Series 2012 Bonds.
Section 31. Delegation and Parameters.
(a) The City Council hereby delegates to the Sale Delegate the authority to
determine and set forth in the Sale Certificate: (i) the matters set forth in subsection (b) of
this Section, subject to the applicable parameters set forth in subsection (c) of this
Section; and (ii) any other matters that, in the judgment of the Sale Delegate, are
necessary or convenient to be set forth in the Sale Certificate and are not inconsistent
with the parameters set forth in subsection (c) of this Section.
(b) The Sale Certificate shall set forth the following matters and other matters
permitted to be set forth therein pursuant to subsection (a) of this Section, but each such
matter must fall within the applicable parameters set forth in subsection (c) of this
Section:
(i) the date on which the Bonds will be issued, which shall be the
Dated Date;
31
4838-4505-1920.2
(ii) the aggregate principal amount of the Series 2012 Bonds;
(iii) the principal amount of the Series 2012 Bonds maturing in each
year;
(iv) the interest payment dates;
(v) the rate of interest;
(vi) the prices at which the Series 2012 Bonds will be sold pursuant to
the Bond Purchase Agreement;
(vii) the Refunded Bonds, to be identified by the principal amount
thereof maturing in each year;
(viii) the Series 2012 Bonds which may be redeemed at the option of the
City, and the dates upon which such optional redemption may occur;
(ix) the principal amounts, if any, of Bonds subject to mandatory
sinking fund redemption, and the years in which such Bonds will be subject to
such redemption;
(x) the identity of the Bond Insurer(if any); and
(xi) the amount (if any) of net proceeds of the Series 2012 Bonds to be
deposited into the Reserve Fund or applied to pay for the Series 2012 Surety Bond
(if any).
(c) The authority delegated to the Sale Delegate by this Section shall be
subject to the following parameters:
(i) in no event shall the Sale Delegate be authorized to execute the
Sale Certificate and Bond Purchase Agreement after the date that is 180 days after
the date of adoption of this Ordinance and in no event may the Series 2012 Bonds
be issued after such date, absent further authorization by the City Council;
(ii) the aggregate principal amount of the Series 2012 Bonds shall not
exceed $9,995,000;
(iii) the aggregate principal amount of the Refunded Bonds shall not
exceed $5,500,000;
(iv) the final maturity of the Series 2012 Bonds shall be no later than
the date that is 21 years after the date of issuance of the Series 2012 Bonds; and
(v) the principal amount of the Series 2012 Bonds allocable to the
refunding of the Refunded Bonds, when combined with the Series 2005B Bonds
outstanding principal amount which is not being refunded shall not exceed the
32
4838-4505-1920.2
total original authorized principal amount of the Series 2005B Bonds, and the
remaining principal amount of the Series 2012 Bonds shall not exceed the
principal amount of debt authorization remaining under the Ballot Question;
(vi) the net effective interest rate on the Series 2012 Bonds shall not
exceed the net effective interest rate of the Refunded Bonds and the debt service
on the Series 2012 Bonds allocable to the refunding of the Refunded Bonds shall
represent a net present value savings, as compared to the Refunded Bonds, of not
less than 5.00%.
Section 32. Authorization to Execute Documents. For a period of 180 days following
the adoption of this Ordinance, the City Council authorizes the Sale Delegate to execute the Sale
Certificate and to execute the Bond Purchase Agreement in accordance with the provisions
hereof. The Mayor or City Clerk, or any other duly authorized officer of the City, shall, and they
are hereby authorized and directed to, take all actions necessary or appropriate to effectuate the
provisions of this Ordinance, including, but not limited to, the execution of the Escrow
Agreement, the Paying Agent Agreement, and the Continuing Disclosure Undertaking, in
substantially the forms presented to this meeting of the City Council, with such changes therein,
if any, not inconsistent herewith, as are approved by the City (which, once executed by the
appropriate City official, shall constitute conclusive evidence of approval of the City), a "Tax
Compliance Certificate" or similar certificate describing the City's expectations regarding the
use and investment of proceeds of the Series 2012 Bonds and other moneys, an Internal Revenue
Service Form 8038-G with respect to the Series 2012 Bonds, and all other documents and
certificates necessary or desirable to effectuate the issuance of the Series 2012 Bonds, the
investment of proceeds of the Series 2012 Bonds and the other transactions contemplated hereby.
The execution by the Mayor or Mayor Pro Tern of the City or any other duly authorized officer
of the City of any document authorized herein shall be conclusive proof of the approval by the
City of the terms thereof.
Section 33. Authorization of Bond Insurance and Series 2012 Surety Bond. The
Underwriter may request, on behalf of the City, the submittal of bids to issue the Bond Insurance
Policy. In the event that the Sale Delegate determines, based in part upon information provided
by the Underwriter, that the premium bid for issuance of the Bond Insurance Policy is less than
the interest cost savings to be realized by the City as a result of the issuance of the Bond
Insurance Policy, the Council hereby delegates to the Sale Delegate the authority to execute the
Commitment with the Bond Insurer designated by the Sale Delegate, provided that the Bond
Insurer shall be listed in The Bond Buyer's Municipal Marketplace Directory—Spring 2012,
published by Thomson Media. In the event that a Bond Insurance Policy is to be issued by the
Bond Insurer, there is also delegated to the Sale Delegate the authority to determine whether the
Series 2012 Reserve Fund shall be funded with a Series 2012 Surety Bond, which determination
shall be set forth in the Sale Certificate. The officers of the City are also hereby authorized and
directed to take all actions necessary to cause the Bond Insurer to issue the Bond Insurance
Policy (if any) in accordance with the Commitment and to issue the Series 2012 Surety Bond (if
any) in accordance with the Commitment, including without limitation, payment of the
premium(s) due in connection therewith and entering into any authorizing agreement, including a
Series 2012 Reserve Policy Agreement. The execution of the Commitment by the Sale Delegate
or other authorized officer of the City is hereby ratified and approved. The Sale Delegate is also
33
4838-4505-1920.2
authorized to set forth in the Sale Certificate such additional terms, provisions and conditions as
may be required to cause the Bond Insurer to issue the Bond Insurance Policy and the Series
2012 Surety Bond (if any) in accordance with the Commitment, and the provisions of this
Ordinance shall be subject to such provisions, if any, set forth in the Sale Certificate.
Section 34. Approval of Official Statement. The City Council hereby approves the
distribution and use of the Preliminary Official Statement relating to the Series 2012 Bonds in
connection with the offering of the Series 2012 Bonds and authorizes and directs the City staff to
prepare a final Official Statement for use in connection with the sale of the Series 2012 Bonds in
substantially the form thereof presented to the City Council at the meeting at which this
Ordinance is adopted, with such changes therein, if any, not inconsistent herewith, as are
approved by the City Attorney of the City. The Mayor or Mayor Pro Tem is hereby authorized
and directed to-execute the final Official Statement.
Section 35. Application of Supplemental Act. The City Council specifically elects to
apply all of the provisions of Title 11, Article 57, Part 2, C.R.S. (as previously defined, the
"Supplemental Act"), to the Series 2012 Bonds.
Section 36. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or
equitable action brought with respect to any legislative acts or proceedings in connection with
the authorization or issuance of the Series 2012 Bonds shall be commenced more than thirty days
after the authorization of the Series 2012 Bonds.
Section 37.Ratification of Prior Actions. All actions heretofore taken not inconsistent
with the provisions of this Ordinance or the Charter by the City Council, the Finance Director, or
by the officers and employees of the City directed toward the issuance of the Series 2012 Bonds
for the purposes herein set forth are hereby ratified, approved and confirmed.
Section 38. Repeal of Inconsistent Resolutions; Contract with Owners of Series
2012 Bonds; Resolution Irrepealable. All ordinances and resolutions, or parts thereof, that are
in conflict with this Ordinance are hereby repealed. After the Series 2012 Bonds have been
issued, this Ordinance shall be and remain a contract between the City and the Owners of the
Series 2012 Bonds and shall be and remain irrepealable until all amounts due with respect to the
Series 2012 Bonds shall be fully paid, satisfied and discharged and all other obligations of the
City with respect to the Series 2012 Bonds shall have been satisfied in the manner provided
herein.
Section 39. Headings, Table of Contents and Cover Page. The headings to the
various-sections and subsections to this Ordinance, and the cover page and table of contents that
appear at front of this Ordinance, have been inserted solely for the convenience of the reader, are
not a part of this Ordinance and shall not be used in any manner to interpret this Ordinance.
Section 40. Severability. It is hereby expressly declared that all provisions hereof and
their application are intended to be and are severable. In order to implement such intent, if any
provision hereof or the application thereof is determined by a court or administrative body to be
invalid or unenforceable, in whole or in part, such determination shall not affect, impair or
invalidate any other provision hereof or the application of the provision in question to any other
34
4838-4505-1920.2
situation; and if any provision hereof or the application thereof is determined by a court or
administrative body to be valid or enforceable only if its application is limited, its application
shall be limited as required to most fully implement its purpose.
Section 41. Recordation. A true copy of this Ordinance, as adopted by the City Council
of the City, shall be numbered and recorded, and its adoption and publication shall be
authenticated by the signatures of the Mayor and the City Clerk and by a certification of
publication.
Section 42. Declaration of Emergency and Effective Date. Due to fluctuations in
municipal bond prices and interest rates and due to currently favorable interest rates and due to
the need to preserve public property, health, peace and safety, it is hereby declared that, in the
opinion of the City Council, an emergency exists, and therefore this Ordinance shall be in full
force and effect upon its passage.
[remainder of this page intentionally left blank]
35
4838-4505-1920.2
INTRODUCED, READ AND PASSED ON FIRST READING AS AN EMERGENCY
MEASURE by the City Council of the City of Aspen at its regular meeting on
2012, as provided by the City's Charter and applicable law.
[SEAL] By
Mayor
Attest:
By
City Clerk
READ, PASSED ON SECOND READING, FINALLY ADOPTED AND APPROVED
AS AN EMERGENCY MEASURE AND ORDERED PUBLISHED WITHIN 10 DAYS OF
SUCH FINAL PASSAGE by the City Council of the City of Aspen at its regular meeting on
L, 2012, as provided by the City's Charter and applicable law.
[SEAL] By
Mayor
Attest:
By
City Clerk
[signature page to Bond Ordinance]
36
4838-4505-1920.2
APPENDIX A
FORM OF SERIES 2012 BOND
No. R- $
UNITED STATES OF AMERICA
CITY OF ASPEN, COLORADO
SALES TAX REFUNDING AND IMPROVEMENT REVENUE BOND
SERIES 2012
Interest Rate: Maturity Date: Original Dated Date: CUSIP:
% November 1,
REGISTERED OWNER: **CEDE & CO.**
Tax Identification Number: 13-2555119
PRINCIPAL SUM: ** DOLLARS*
The City of Aspen, Colorado (the "City"), a legally and regularly created, established,
organized and existing municipal corporation under the provisions of Article XX of the
Constitution of the State of Colorado (the "State") and the home rule charter of the City (the
"Charter") and political subdivision of the State, for value received, hereby promises to pay to
the order of the registered owner named above or registered assigns, solely from the special
funds as hereinafter set forth, on the maturity date stated above, the principal sum stated above,
in lawful money of the United States of America, with interest thereon from the original dated
date stated above, at the interest rate per annum stated above, payable on May 1 and November 1
of each year, commencing May 1, 2013, the principal of and premium, if any, and the final
installment of interest on this bond being payable to the registered owner hereof upon
presentation and surrender of this bond at the principal office of UMB Bank, n.a.,, as Paying
Agent (the "Paying Agent"), in Denver, Colorado, and the interest hereon (other than the final
installment of interest hereon) to be paid by check or draft of the Paying Agent mailed on the
interest payment date to the registered owner hereof as of the close of business on the fifteenth
day of the month (whether or not such day is a Business Day) preceding the month in which the
interest payment date occurs, except that so long as Cede & Co. is the registered owner of this
bond, the principal of, premium, if any, and interest on this bond shall be paid by wire transfer to
Cede & Co.
This bond is one of an issue of bonds of the City of Aspen, Colorado Sales Tax Revenue
Refunding and Improvement Bonds, Series 2012, issued in the principal amount of$
(the "Series 2012 Bonds"). The Series 2012 Bonds are being issued by the City for the purpose
of refunding a portion of the City's Sales Tax Revenue Bonds, Series 2005B, funding the
purchase and improvement of trail, recreation, and open space properties and ancillary facilities,
4838-4505-1920.2
and the funding of a reserve fund surety bond for, and the costs of issuance of, the Series 2012
Bonds, pursuant to and in full conformity with the State Constitution and the Charter, the laws of
the State, including, in particular, Article 56 of Title 11 and Part 2 of Article 57 of Title 11,
Colorado Revised Statutes, as amended and pursuant to an ordinance (the "Ordinance") adopted
by the City Council of the City prior to the issuance hereof.
[Insert Redemption Provisions from Sale Certificate]
Notice of any redemption of Series 2012 Bonds shall be given by sending a copy of such
notice by first class, postage prepaid mail, not less than 30 days prior to the redemption date, to
the Owner of each Series 2012 Bond being redeemed. Such notice shall specify the number or
numbers of the Series 2012 Bonds so to be redeemed (if redemption shall be in part) and the
redemption date. If any Series 2012 Bond shall have been duly called for redemption and if, on
or before the redemption date, the City shall have set aside funds sufficient to pay the redemption
price of such Series 2012 Bond on the redemption date, then such Series 2012 Bond shall
become due and payable at such redemption date, and from and after such date interest will cease
to accrue thereon. Failure to deliver any redemption notice or any defect in any redemption
notice shall not affect the validity of the proceeding for the redemption of Series 2012 Bonds
with respect to which such failure or defect did not occur. Any Series 2012 Bond redeemed prior
to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled.
The Paying Agent shall maintain registration books in which the ownership, transfer and
exchange of Series 2012 Bonds shall be recorded. The person in whose name this bond shall be
registered on such registration books shall be deemed to be the absolute owner hereof for all
purposes, whether or not payment on this bond shall be overdue, and neither the City nor the
Paying Agent shall be affected by any notice or other information to the contrary. This bond
may be transferred or exchanged, at the principal office of the Paying Agent in Denver,
Colorado, for a like aggregate principal amount of Series 2012 Bonds of other authorized
denominations ($5,000 or any integral multiple thereof) of the same maturity and interest rate,
upon payment by the transferee of a transfer fee, any tax or governmental charge required to be
paid with respect to such transfer or exchange and any cost of printing bonds in connection
therewith.
The Series 2012 Bonds are special, limited obligations of the City payable solely from
and secured solely by the sources provided in the Ordinance and shall not constitute a debt of the
City within the meaning of any constitutional or statutory limitation. Pursuant to the Ordinance
the City has pledged for the payment of the principal of, premium, if any, and interest on the
Series 2012 Bonds, and granted a lien for such purpose on the Pledged Revenues, constituting,
for each fiscal year, all of the proceeds of the Parks and Open Space Sales Tax (as defined in the
Ordinance) after deduction of the reasonable and necessary costs and expenses of collecting and
enforcing the Parks and Open Space Sales Tax, if any, the Bond Fund, the Series 2012 Reserve
Fund and the Revenue Fund (all as defined in the Ordinance). The Series 2012 Bonds are issued
on a parity with the City's Sales Tax Revenue Refunding Bonds, Series 2005 (the "Series 2005
Bonds"), the City's Sales Tax Revenue Bonds, Series 2005B (the "Series 2005B Bonds") and the
City's Parks and Open Space Sales Tax Revenue Refunding Bonds, Series 2009 (the "Series
2009 Bonds"). The City is further authorized by the Ordinance to pledge and grant a lien, on a
parity with the lien for the payment of the principal of, premium, if any, and interest on the
A-2
4838-4505-19202
Series 2012 Bonds, the Series 2009 Bonds, the Series 2005B Bonds and the Series 2005 Bonds,
on the Pledged Revenues, the Bond Fund and the Revenue for the payment of the principal of,
premium, if any, and interest on additional bonds or obligations (which may or may not be
multiple-fiscal year obligations), upon satisfaction of certain conditions set forth in the
Ordinance.
This bond, including the interest hereon, is payable solely from and secured solely by the
special funds provided in the Ordinance and shall not constitute a debt of the City within the
meaning of any constitutional or statutory debt limitation or provision.
THE ORDINANCE CONSTITUTES THE CONTRACT BETWEEN THE
REGISTERED OWNER OF THIS BOND AND THE CITY. THIS BOND IS ONLY
EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO
THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT
STATEMENT IN THIS BOND.
The City agrees with the owner of this bond and with each and every person who may
become the owner hereof, that it will keep and perform all the covenants and agreements
contained in the Ordinance.
The Ordinance may be amended or supplemented from time-to-time with or without the
consent of the registered owners of the Series 2012 Bonds as provided in the Ordinance.
It is hereby certified that all conditions, acts and things required by the State Constitution,
the Charter, and the ordinances and resolutions of the City, to exist, to happen and to be
performed, precedent to and in the issuance of this bond, exist, have happened and have been
performed, and that the Series 2012 Bonds do not exceed any limitations prescribed by the State
Constitution, the Charter or the ordinances of the City.
This bond shall not be entitled to any benefit under the Ordinance, or become valid or
obligatory for any purpose, until the Paying Agent shall have signed the certificate of
authentication hereon.
[remainder of this page intentionally left blank]
A-3
4838-4505-1920.2
IN WITNESS WHEREOF, the City has caused this bond to be executed with the manual
or facsimile signature of its Mayor and attested by the manual or facsimile signature of the City
Clerk, and has caused the seal of the City to be impressed or imprinted hereon, all as of the date
set forth above.
[SEAL] CITY OF ASPEN, COLORADO
By
Mayor
Attest:
By
City Clerk
A-4
4838-4505-1920.2
CERTIFICATE OF AUTHENTICATION
This is one of the Series 2012 Bonds described in the within-mentioned Ordinance.
UMB BANK,N.A., as Paying Agent
By
Authorized Signatory
Date of Authentication:
A-5
4838-4505-1920.2
[STATEMENT OF INSURANCE]
A-6
4838-4505-1920.2
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
(Please print or typewrite name and address of Transferee)
(Tax Identification or Social Security No.)
the within bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within bond in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed:
Signature(s) must be guaranteed by a
national bank or trust company or by
a brokerage firm having a
membership in one of the major
stock exchanges.
TRANSFER FEE MAY BE REQUIRED
A-7
4838-4505-1920.2
PREPAYMENT PANEL
The following installments of principal (or portion thereof) of this Bond have been
prepaid in accordance with the terms of the Indenture.
Date of Principal Signature of Authorized
Prepayment Representative of the Depository
A-8
4838-4505-1920.2
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
FROM: Amy Guthrie, Historic Preservation Officer
THRU: Jennifer Phelan, Deputy Planning Director
RE: Call-up of HPC approval of Conceptual Major Development Review,
Special Review, and Setback Variance:
435 W. Main Street, HPC Resolution#20, Series of 2012
MEETING DATE: September 10, 2012
COUNCIL REQUEST:
On August 27th, City Council voted to call up the HPC approval of Conceptual Major
Development Review, Special Review and Setback Variance for a proposed parsonage on the
eastern half of the Aspen Jewish Community Center property at 435 W. Main Street. The AJCC
site is a designated landmark within the Main Street Historic District.
Council is asked to proceed with the call up procedures and take action on one of the options
listed below.
REVIEW PROCESS:
During a public meeting, City Council shall consider the application de novo and may consider
the record established by the HPC. The City Council shall conduct its review of the application
under the same criteria applicable to the HPC.
City Council may take the following action:
1. Accept the decision.
2. Remand the application to HPC with direction from City Council for rehearing and
reconsideration.
3. Continue the meeting to request additional evidence, analysis or testimony as
necessary to conclude the call up review.
If Council selects Option #2 and remands the application back to the Board, the rehearing and
reconsideration of the application by HPC is final and concludes the call up review. Substantial
changes to the application outside of the specific topics listed in the remand to HPC may require
a new call up notice to City Council; however the call up review would be limited only to the
new changes to the application.
In addition to HPC design approval, this project must be reviewed under Growth
Management (Essential Public Facilities) and Subdivision. The property owner cannot
apply for the additional reviews until the call-up process is concluded.
BACKGROUND: BACKGROUND:
The applicant received Council approval in 2004 for a project which included a sanctuary/
preschool/administrative building, and preservation of 6 historic 1940s era tourist cabins to be
used as affordable housing and lodging for visitors related to church events and programming.
Construction preparation for the sanctuary was initiated in Spring 2012.
In May 2012, Community Development received an application to replace a portion of the
approved structure with a freestanding parsonage. The applicant determined that being able to
have the Rabbi and family live on site and receive the congregation was a higher priority need.
On August 15, 2012, the. Historic Preservation Commission Commission (HPC) approved
Conceptual Major Development Review, Special Review for Parking and a Setback Variance for
the project. Conceptual Major Development addresses the mass, scale and placement of a
proposed building, compatibility of the building within the Main Street Historic District and
historic landmarks on the site, and provides the applicant with direction for moving forward with
their proposal. All parking requirements for this project have been established through the
Special Review process because of the Essential Public Facility status of the development. HPC
has the authority to consider setback variances on all historic properties.
DISCUSSION:
The Planning staff memo to HPC recommended continuation of the design review process for
the applicant to restudy the width of the parsonage and the distance between the parsonage and
the historic landmarks on the site. During the HPC hearing, the applicant provided a revised site
plan, along with maps of the neighborhood which demonstrated that the building dimensions are
similar to adjacent structures. HPC approved the design by a vote of 4-3. A copy of the HPC
Resolution and Minutes are attached as Exhibits B and C, respectively. A copy of the approved
massing is attached as Exhibit A.
HPC was split on the site plan issue, which is the reason for the 4-3 vote. The board otherwise
supported the project, with two areas of restudy for Final review; the roof over the dining room
and the orientation of the front door of the parsonage.
The parsonage proposal is about 700 square feet smaller than the building program that it is
replacing. As a free-standing building, it breaks down the scale of the new development in a
way that HPC felt is an improvement to the project. HPC agreed to accept one on-site parking
space as adequate for the residential use. A front yard setback variance was granted to allow the
parsonage to be in line with the sanctuary building along Main Street.
RECOMMENDATION: Staff recommends that the HPC decision stand, allowing the project to
proceed through the review process, which will include a public hearing before Council.
RECOMMENDED MOTION(ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE):
"I move to uphold HPC's decision to grant Conceptual Major Development Review, Special
Review and Setback Variance for a proposed parsonage on the eastern half of the Aspen Jewish
Community Center property at 435 W. Main Street."
CITY MANAGER COMMENTS:
ATTACHMENTS:
Exhibit A: Approved Plans
Exhibit B: HPC Resolution 20, Series 2012
Exhibit C: HPC approved minutes
F_A/- [A � �J t - -
RECEPTION#: 591629, 08/24/2012 at
03:45:42 PM,
1 OF 2, R $16.00 Doc Code RESOLUTION
Janice K.Vos Caudill,Pitkin County, CO
RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC)
GRANTING CONCEPTUAL MAJOR DEVELOPMENT, SPECIAL REVIEW AND
SETBACK VARIANCE APPROVAL FOR THE PROPERTY LOCATED AT 435 W.
MAIN STREET, LOTS A-I,BLOCK 38, CITY AND TOWNSITE OF ASPEN,
COLORADO
RESOLUTION NO. 20, SERIES OF 2012
PARCEL ID: 2735-124-81-100
WHEREAS, the applicant, Jewish Resource Center Chabad of Aspen, represented by Arthur
Chabon Architect and Alan Richman Planning Services, has requested Conceptual Major
Development, Special Review for Parking and Setback Variance approval for the property
located at 435 W. Main Street, Lots A-I, Block 38, City and Townsite of Aspen; and
WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structure
shall be erected, constructed, enlarged, altered, repaired, relocated or improved involving a
designated historic property or district until plans or sufficient information have been submitted
to the Community Development Director and approved in accordance with the procedures
established for their review;"and
WHEREAS, for Conceptual Major Development Review, the HPC must review the application,
a staff analysis report and the evidence presented at a hearing to determine the project's
conformance with the City of Aspen Historic Preservation Design Guidelines per Section
26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC
may approve, disapprove, approve with conditions or continue the application to obtain
additional information necessary to make a decision to approve or deny; and
WHEREAS, HPC may establish parking requirements for the project based on the Special
Review standards of Section 26.430.040.D; and
WHEREAS,the HPC may approve setback variances according to Section 26.415.110.C.La,
Variances; and
WHEREAS, Amy Guthrie, in her staff report dated August 15, 2012, performed an analysis of
the application based on the standards, found that the review standards could be met with restudy
and recommended that the public hearing be continued; and
WHEREAS, at their regular meeting on August 15, 2012, the Historic Preservation Commission
considered the application, found the application was consistent with the review standards and
approved the application with conditions by a vote of 4 to 3.
NOW,THEREFORE, BE IT RESOLVED:
That HPC hereby approves Conceptual Major Development, Special Review and a Setback
Variance for 435 W. Main Street, with the following conditions:
1. The approved site plan is represented in Option 13, Exhibit II of the August 15, 2012
meeting record.
2. The roof over the dining room is to be restudied for Final,
3. The front door of the parsonage must face Main Street.
APPROVED BY THE COMMISSION at its regular meeting on the 15th day of August,
2012.
Approved as to content:
HISTORIC PRESERVATION COMMISSION
1-4nn Mullins,Chair
Approved as to Form:
1
Debbie Quinn,Assistant City Attorney
ATTEST:
5 -���(�
Kathy Stricidand, Chief Deputy Clerk
- - - - - - - - - - - - - - - -
Fly , ,-
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 15, 2012
Chairperson, Ann Mullins called the meeting to order at 5:00 p.m.
Commissioners in attendance: Nora Berko, Willis Pember, Jay Maytin,
Jamie McLeod, Patrick Segal and Sallie Golden. Jane Hills was absent.
Staff present:
Deborah Quinn, Assistant City Attorney
Amy Guthrie, Historic Preservation Officer
Kathy Strickland, Chief Deputy City Clerk
Jamie moved to approve the minutes of August Stn second by Patrick. All in
favor motion carried. Ann abstained because she was absent at the meeting.
435 W. Main — Conceptual Major Development, Special Review for
Parking, Setback Variances — Public Hearing
Public notice — Exhibit I
Deborah Quinn said the public notice requirements are complete except for
the mailing list and it will be supplemented into the records.
Amy said last week HPC discussed architectural changes to the sanctuary
building at the west end of the property and those were approved and they
are moving through the building permit process. The social hall will not be
built but they intend to build a parsonage for the Rabi and his family. This is
a major development two step review and it also has to go to P&Z and
council. The social hall spanned across 3/4 length of the block with
continuous construction. The parsonage has an immediate advantage
because of its detached structure. There is a lot to be said having the open
space created around it. It is a taller building than the social hall was and the
height is being placed next to the historic cabins. Staff has a few issues with
the design guidelines: One is the proximity to the historic cabins and can
there be any more breathing room and can the parsonage building move a
little closer to the sanctuary building. In this immediate block there are
some of the biggest Victorian mansions that are left in town. This building
will have some context to support its size but the Victorian buildings look to
be approximately 35 feet wide and this building has a width of 50 feet. The
building is set back but it seems wider than the historic buildings and staff
has concerns about that. HPC needs to address parking and there are not
regulations; it is case by case. The applicant is proposing one parking space
in a garage. The Rabi and his family will be in a live work situation so we
feel there is no need to provide more than they have requested. They are
1
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 15, 2012
asking for a setback variance to keep the parsonage five feet from the front
lot line. That is closer to the street than most of the houses in the block so
that might not be considered appropriate; however the sanctuary and the
historic cabins are only a foot or two off the front property line so there is a
reason to continue keeping the construction closer to Main Street. As a
point of discussion whether the proposed garage should be integrated with
the house or whether there should be some way to accommodate parking
with a structure on the alley or uncovered parking. Staff is recommending
continuance.
Ann said there are five issues:
Proximity to the cabins
Width of the parsonage - - - - - -
Parking
Setback
Garage
Alan Richman, representing the applicant. We will do this in three pieces;
introduction of Rabi Mintz; Arthur Chabon will address the design issues
and I will conclude specifically focusing on the design guidelines.
Rabi Mintz said for the success of the organization and the services we offer
to the community and for the community itself it will have a big impact to
have the two buildings side by side. It is not just really a home it is part of
the Jewish center that will be next door. It is a great importance to my
growing family and for the success of what we do. My wife and I spent a lot
of time with Arthur designing this and we made every effort to eliminate any
extra space. We made every effort to maximize the space for the community
and our family. The size of the parsonage was dictated by the size of my
family and capacity of events that we want to hold in the parsonage. It is
important for us to move forward in a timely manner and it is important to
do this simultaneously with the construction that will happen next door. We
hope to leave here tonight with a vote in favor of the parsonage and allowing
us to go forward.
Leba Mintz said this is an emotional issue because it is our home. We live
1.2 miles from the center and every Saturday we walk to the center and if
there are storms sometimes my children don't even go to the services due to
inclement weather. It will make a big difference being next door to the
2
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 15, 2012
center. We have made this home as simple as possible. I ask you to not
drag this on and hopefully it can go forward.
Arthur Chabon, architect— Elevations — Exhibit II
Arthur said there are three primary issues: One is the overall length of the
building parallel to Main Street. Proximity of the parsonage on Third Street
blocks the views of the cabins and the issue that the parking should not be
brought so far to the center of the lot.
Site plan: Arthur said there are two site plans A and B. The basic strategy
was to nestle the parsonage in the L that is defined by the cabins on the alley
and cabins on Third Street. As required by the guidelines the main entrance
is off Main Street and you enter on a porch which runs parallel to Third St.
and then you enter the foyer, living room, dining room, kitchen, mud room
and garage.
On the Main Street entrance there is a smaller gable and the south elevation
a pair of gables and at the west a larger gable to relate to the sanctuary itself.
There is a gable over the garage, kitchen and mudroom. The gables are all
centered exactly between the cabins. When looking through the cabins they
create focal points. We deliberately did not copy the slopes of the cabins
leaving a more dynamic dialogue between old and new. The parsonage is
much smaller on the site than other properties that you see.
Arthur went over Victorian houses with different facades dimensions within
the vicinity. Our fagade is 27 feet and the overall is 53 feet but the element
that brings you to 53 feet is 12 feet back.
Cabins:
Arthur said the social hall as approved obscured the three cabins completely.
In moving the parsonage inward option B we lose the diagonal view of the
cabins. The repetition of the cabins and the space and shadows between the
cabins in a way subordinate the parsonage. From the Main Street side they
are preserved and enhanced.
Parking:
Arthur said we have to be ten feet away from the adjacent property and the
guidelines require the parking to be off the alley. The options are extremely
limited and parking has to be accessed between the cabins. We also want to
limit the amount of driveway into the property. There is no better proposal
3
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 15, 2012
for the parking than what we have. We feel our scheme is consistent with
the general scale of Main Street and keeping the parsonage closer to the
cabins further enhances the historic resource.
Alan Richman said the parsonage brings many benefits to the project and it
serves critical functions for the congregation and it provides a home for the
leaders of the congregation and it creates a free standing residential structure
that creates more of an open feel on Main Street as compared to the social
hall that which stretched all across Main Street. The relationship between
the parsonage and the cabins has been addressed by the guidelines. Your
guideline 7.12 says a new structure should siep down in scale. In terms of
the location of the parsonage and staff's comment to move it to the west we
think that there are three significant benefits to the location of the parsonage
where it is. It opens up the views from Main Street to the cabins along the
alley. By keeping the parsonage close to the cabins we create a playground
in the middle of the property which is right next to the pre-school and it is
big enough to be usable by the pre-school. If you move it over it cuts into
the open space. It also breaks the mass along Main Street into distinct
building forms because it keeps the parsonage far away enough from the
community center that you actually read them as two separate masses.
In the staff report one of reasons to move it west is guideline 7.5 which reads
respect the historic settlement patterns. It talks about consideration of
building setbacks and entry orientation and open space. We have oriented it
to Main Street and keeping the building close to the cabins you create the
open space in the middle of the site. The question is the setback. The
pattern on our block is not like others. We have a 26 foot primary gable and
a cross gable that is set back 12 feet from the primary facade and is
subordinate to the primary fagade. By the nature of the cabins being behind
the building the only way we can accommodate the program the
congregation needs is to begin to have the subordinate elements.
Alan said they are clearly proposing to access the garage from the alley. We
can't place the garage on the alley because we have cabins across the alley.
In terms of floor area we are way below. The total build out with the six
cabins and the two buildings is about 17,000 square feet. We are 3,000
square feet below the public and 10,000 square feet below what is allowed
on the property.
4
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 15, 2012
Patrick asked if it was thought of to flip the project so the parking would be
accessed from Third Street. Visually it would be best to see the cabins
coming from the west.
Arthur said 7 years ago we did propose relocating the cabins and HPC
determined that the cabins should not be moved.
Jay inquired about the use of the cabins.
Alan said the three along Main Street are deeded as affordable housing.
The three along the alley are deed restricted for lodging for guests associated
with the community center.
Willis asked about the square footage of the parsonage as compared to the
social hall.
Allen said the parsonage is approximately 700 feet smaller than the social
hall.
Nora said we all worked hard to keep the program low with the social hall
and is there any way to get the parsonage into that program.
Rabi Mintz said we tried that and it could work if we got bigger but then you
would have less of a view of the cabins.
Alan said with rearrangement you could have a one story more spread out
building. We went with the vertical building because that is the pattern you
see on Main Street.
Chair-person, Ann Mullins opened the public comments. There were no
public comments. The public comment portion of the agenda item was
closed.
Ann stated the issues:
Proximity of the new building to the cabins.
Width of the new building
Parking
The requested 5 foot setback
Garage entry
Entrance to the new building
5
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 15, 2012
Patrick said in flipping the plan and putting the parsonage on the alley you
would get a view plane of all the cabins and it would benefit the community
and the Rabi. The reason why the cabins are where they are is because of
the massing to the west.
Amy said the proposal by Patrick would have to be a new public notice. The
location and setting of the cabins is an important significance and that is part
of why it was not brought forward.
Ann and Jay said they would not agree to support moving the cabins.
Jamie said she would have to review the past meetings before making any
decisions.
Willis pointed out that the applicant has not requested the change and it was
important that the cabins remain in their original location.
Sallie said she would consider it if the applicant requests it.
Proximity to the cabins:
Jay said typically we don't nestle things toward the historic structure. Jay
said he supports option B so that there is more breathing room around the
cabins. I have no problem with the overall width. I do have an issue with
the roof over the dining room because it creates more mass. I have no issue
with the parking or setback variance or the garage. I don't support the front
door entry. The chimney creates more mass and a heaviness as it comes to
the ground but that can be discussed at final.
Jamie said she can support Option B. Along Main Street there aren't a lot of
windows and other Victorians have windows that open up to Main Street.
The building also seems a little top heavy with the mass of the roof. How
are you nodding or stepping down to the cabins in the back of the alley? I
also support what Jay said that the front door needs to face Main Street to
give it the presence of the entry. I am also OK with the five foot variance.
Sallie said she likes breaking the two buildings up and having the little
cabins between the spaces. There is more breathing room. The entrance is
fine and the garage and variance are OK also. The building does seem a
little top heavy. I can support Option A.
6
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 15, 2012
Willis said Option A has the best site plan. Site lines enhance the reading of
the resources which is what the site plan is about here. The parking and
garage are not a issue. I am also fine with the entry and the width of the
building has extensively been researched. I am fine with the front door
because it is read from both Main Street and 3rd Street. Where the door is
located is not critical because it is not likely to be read at all. The entry is
clearly marked as a one story element.
Nora said she feels the building is too close to the cabins and doesn't honor
the cabins enough. This is now a house and not a social hall so I cannot
support the setback variance. It has a front door and should also have some
front space. The garage is OK.
Ann said the entrance needs to be restudied and come off Main Street. The
door looks more like a back door rather than a front door (guideline 7.9) I
cannot support the setback. Guideline 7.14 talks about stepping the building
down to the historic resources. The garage and parking are fine. By moving
the residence to the west it reinforces the historic use of the cabins which
was a motor court accessed off Main Street.
Patrick said he can support Option B. Since it is a residence my
recommendation would be to move the chimney around the corner and put
windows on the front and take the overhang off. The front door and
windows should be on Main Street.
Response to comments:
Arthur said the front door is clearly articulated off Main Street. Whether it
is perpendicular or parallel is not significant. That said it is an easy plan
change. The Rabi specifically requested an entrance off the side street. You
can't stop in front of the building on Main Street because there is a bus stop
there. The reality is that you will enter from the alley and side street. We
consciously did not put a lot of glass on Main Street because there are
bedroom there. There are a lot of buildings on Main Street that are 12 to 15
feet apart.
Alan said they will look at the requirement for the playground so that state
standards are met.
Willis said you need to look at the site lines. This is not just a house it is a
parsonage and a synagogue. It is a parsonage that is attached to a particular
7
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF AUGUST 15, 2012
organization. Submitting the sanctuary and parsonage separately makes it
difficult to read wholly and holistically. The reality is that you will enter off
Third Street.
Nora suggested we continue the meeting to a date certain.
MOTION: Patrick made the motion to continue to restudy the setback and
restudy of moving the house west closer to the sanctuary. Restudy the front
Main Street fagade which includes the chimney, door, windows, and fagade
overhang. Motion died for lack of a second.
MOTION: Jay moved to approve resolution #20 for 435 W. Main Option B
with restudy of the roof line over the dining room and that the front door
faces Main Street. Motion second by Ann.
Amended motion: Willis amended the motion to approve Option A, second
by Sallie. Vote on amendment only. Patrick, no; Jamie, no, Jay, no; Ann,
no; Nora, no; Willis, yes; Sallie, yes. Motion failed 5-2.
Vote on entire motion with the conditions in staff memo.
Patrick, yes; Jamie, no; Jay, yes; Ann, yes; Nora, no;Willis, yes; Sallie, no.
Motion carried 4-3
135 E. Cooper Ave. work session — no minutes
Deborah Quinn, assistant city attorney said a work session is not a recorded
public meeting and it is basically getting opinions of members of the board
on a proposal that you place in front of them. There can be no approvals and
the applicant cannot rely on anything that is said by the commission as a
whole or by any individual commissioner. There is nothing that can be
stated up front that you can rely formally on. Certainly you are trying to get
impressions and input and you need to understand that work sessions are not
for making final determinations.
MOTION: Ann moved to adjourn; second by Jay. All in favor, motion
carried.
Kathleen J. Strickland, Chief Deputy Clerk
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ARTHUR CHABON ARCHITECT AJCC Parsonage F i r s t F l o o r p l a n August 15 , 2012
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ARTHUR CHABON ARCHITECT AJCC Parsonage S e c o n d F I o o r p l a n August 15 , 2012
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EXECUTIVE SESSION
Date September 10, 2012 Call to order at: r m.
I. Co ilmembers present: Councilmembers not present:
�ick Ireland ❑ Mick Ireland
eve Skadron ❑ Steve Skadron
,Adam Frisch ❑ Adam Frisch
,Derre ❑ Torre
rek Johnson ❑ Derek Johnson
II. Motion to go into executive session by seconded by
Other persons present:
AGAINST:
FOR:
X❑ Mick Ireland ❑ Mick Ireland
[9 Steve Skadron ❑ Steve Skadron
Adam Frisch ❑ Adam Frisch
21 Torre ❑ Torre
Derek Johnson ❑ Derek Johnson
III. MOTION TO CONVENE EXECUTIVE SESSION FOR THE PURPOSE OF DISCUSSION OF:
C.R.s. 24-6-402(4)
(a)The purchase, acquisition, lease,transfer, or sale of any real,personal, or other property interest
(b onferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal
ques ions.
(c)Matters required to be kept confidential by federal or state law or rules and regulations.
(d) Specialized details of security arrangements or investigations, including defenses against terrorism,both domestic
and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the
purpose of committing, or avoiding prosecution for, a violation of the law;
)Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations;
and instructing negotiators;
(f) (I) Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if
the personnel matter involves more than one employee, all of the employees have requested an open meeting.
IV. ATTESTATION:
The undersigned attorney, representing the Council and being present at the executive session, attests that the
subject of the unrecorded portions of the session constituted confidential attorney-clien ommum a _
The undersigned chair of the executive session attests that the discussions in this executive ssi n were li ited
to the topic(s)described in Section III, above.
Adjourned at: