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HomeMy WebLinkAboutagenda.council.regular.20121112 CITY COUNCIL AGENDA November 12, 2012 5:00 PM I. Call to Order II. Roll Call III. Scheduled Public Appearances IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) City Council Meetings in December b) Minutes - October 22, 2012 VII. First Reading of Ordinances a) Ordinance #23, Series of 2012 - AspenModern negotiation for 610 E. Hyman P.13 b) Ordinance #25, Series of 2012 - Code Amendment - CC and C-1 Zone Districts P.H. c) Ordinance #26, 2012 - Sales Tax Parks and Open Space Bonds Refunding d) Ordinance #27, Series of 2012 - Supplemental Appropriation P.H. 11/26 e) Ordinance #28, Series of 2012 - Code Amendment - Administrative Hearing Officer P.H. 11/26 f) Ordinance #29, Series of 2012 - Fees for 2013 P.H. 11/26 g) Ordinance #30, Series of 2012 - Water Rate Adjustment P.H. 11/26 VIII. Public Hearings a) Resolution #104, 2012 - Policy Direction for Code Amendment on Master Plans b) Resolution #105, 2013 - Policy Direction for Code Amendment on ADUs c) Resolution #106, 2012 - Policy Direction for Code Amendment on Housing Certificates d) South Aspen Lodge Conceptual PUD IX. Action Items a) Notice of Call-up for 422 E. Cooper Avenue b) Notice of Call-up for 400 E. Hyman Avenue c) 616 E. Hyman Ave., Notice of Call - up X. Request for Executive Session XI. Adjournment Next Regular Meeting November 26, 2012 COUNCIL’S ADOPTED GUIDELINES COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. • Stick to top priorities • Involve others in community problem solving • Be thorough, deliberate and accountable for consequences when making decisions X` G 6/, It U !,)1 1-,o November 129 2012 To the Citizens of Aspen and City Council Aspen has a long and illustrious history in the generation of clean and renewable hydro-electric power. As a long time Citizen of Aspen, It has been my privledge to have been a part of that history Over a century ago, Aspen was a leader in the application of hydro- electric power for mining and community use generated from our local streams. During the first 10 years of skiing in Aspen, from 1947-1958 All the ski lifts were powered by electricity generated from turbines at the historic Castle Creek Power Plant. Due to a lack of financial resources by the City to repair or replace the flumes supplying water to the plant, it was decided to shut the plant down. A few years later, after the '61 Labor Day snow storm, the turbines were removed. This was a terrible mistake that we have all come to regret. Today, some sixty years later, we have come to realize the importance of the restoration of clean and renewable energy in our own backyard. Now we are at a point in time as to how we should preserve our historic water rights for power generation or yield to the undisclosed money interests who wish to steal our water rights by defeating any attemps by the Citizens of Aspen to restore clean and renewable energy to Aspen. The narrow loss by only 1% on advisory question 2C should not deter the Council from its responsibility to protect Aspen adjudicated water rights. Please do not abdicate your responsibility to protect Aspen's water rights from the unscrupulus interests who want us to abandon these historic water rights under the guise of "Save our Streams" Should not the City of Aspen also have an emergency source of power in the event of a loss of the grid? Is it not prudent to take precautions to ensure our safety and welfare? I urge you to think about your community first and not be blackmailed by undisclosed interests who wish to steal our water rights. Powq� by the people for the people! J �alunas,m°M a citizen for Aspen Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Kathryn Koch, THRU: Kathryn Koch DATE OF MEMO: 10/29/2012 MEETING DATE: 11/12/2012 RE: City Council Meetings in December REQUEST OF COUNCIL: By approving the consent calendar, Council is approving one regular meeting in December, the 10th. PREVIOUS COUNCIL ACTION: Council has approved a single meeting in December for the past 8 or 9 years. BACKGROUND: The City of Aspen Charter Section 4.1 states The council shall meet regularly at least twice each month at a day and hour to be fixed by the rules of council. The council shall determine the rules of procedure governing meetings. The first regular meeting in the month of June following each general municipal election shall be known as the organizational meeting of the council. Click here to enter text. RECOMMENDED ACTION: Staff recommends eliminating the second meeting in December. ALTERNATIVES: Council could meet December 10th and 17th instead. CITY MANAGER COMMENTS: P1 VI.a Page 2 of 2 P2 VI.a Regular Meeting Aspen City Council October 22, 2012 1 CITIZEN PARTICIPATION .......................................................................................................... 2 COUNCILMEMBER COMMENTS .............................................................................................. 2 CONSENT CALENDAR ............................................................................................................... 2 • Minutes – October 9, 2012 ............................................................................................................... 3 • Resolution #97, 2012 – Ordinance Legal Notice Procedures ............................................................ 3 • Resolution #98, 2012 – Bike Share Equipment Purchase Contract .................................................. 3 • Resolution #99, 2012 – State of Colorado FASTER-Transit Grant Agreement .................................. 3 • Resolution #100, 2012 – Contract Front End Loader ........................................................................ 3 • Resolution #101, 2012 – Contract John Deere Motor Grader .......................................................... 3 RESOLUTION #102, SERIES OF 2012 – Temporary Use Jewish Community Center ............... 3 RESOLUTION #103, SERIES OF 2012 – South Aspen Street Lodge .......................................... 3 P3 VI.b Regular Meeting Aspen City Council October 22, 2012 2 Mayor Ireland called the meeting to order at 5:08 PM with Councilmembers Torre, Frisch, Johnson and Skadron present. CITIZEN PARTICIPATION There were no comments. COUNCILMEMBER COMMENTS 1. Councilman Torre announced early voting started today at the Pitkin County Clerk’s office. Councilman Torre stated he is supporting the hydropower question; there is no right or wrong on the issue and it is up to each voter to decide what is important to them. Councilman Torre said mistakes may have been made throughout the process. Councilman Torre said it is a better investment environmentally and financially to support the hydropower project going forward. 2. Councilman Torre said the Aspen High School Skier’s final football game is Friday in Basalt. 3. Councilman Johnson encouraged voters to get educated on the state and local issues. Councilman Johnson agreed that hydropower should move forward. 4. Councilman Frisch noted skier Wiley Maple is on his way to the downhill ski team; there is a fund raiser at the Wheeler for Wiley November 9th. The cross country skiers, Simi Hamilton, Noah Hoffman and Michael Ward are having a fund raiser at the Limelight November 3rd. Councilman Frisch encouraged the community to support these athletes. 5. Councilman Skadron said he supports the hydro question as well conceived and financially responsible over the long term. Councilman Skadron said this is the kind of project communities like Aspen should invest in. 6. Mayor Ireland said he supports the hydro project. Mayor Ireland said it is appalling to have unlimited money spent by undisclosed parties in Aspen elections. Mayor Ireland said people should be skeptical when they are not told who is paying for studies that are being quoted as a for or against argument. 7. Councilman Frisch announced the Nordic Council is looking for volunteers for their board; they meet on the 3rd Wednesday monthly. 8. Councilman Skadron said RFTA’s budget cycle is looking good. The BRT project is on schedule and the bus stops architectural elements will be used to run the electronics for the new system. CONSENT CALENDAR P4 VI.b Regular Meeting Aspen City Council October 22, 2012 3 Kathryn Koch, city clerk, pointed out the resolution regarding legal notices specifically states that the abbreviated notice will be published in a newspaper. Councilman Johnson asked about the bike share contract and if it is not successful and the funding comes from federal grants, how does the funding get unwound? John Krueger, transportation department, pointed out the city is only purchasing one kiosk and the net outlay is $6,000. Lynn Rumbaugh, transportation department, told Council the vendor is winning most bike share contracts and there will be an opportunity for resale. Councilman Torre moved to approve the consent calendar; seconded by Councilman Johnson. The consent calendar is: • Minutes – October 9, 2012 • Resolution #97, 2012 – Ordinance Legal Notice Procedures • Resolution #98, 2012 – Bike Share Equipment Purchase Contract • Resolution #99, 2012 – State of Colorado FASTER-Transit Grant Agreement • Resolution #100, 2012 – Contract Front End Loader • Resolution #101, 2012 – Contract John Deere Motor Grader All in favor, motion carried. RESOLUTION #102, SERIES OF 2012 – Temporary Use Jewish Community Center Chris Bendon, community development department, said this application is for a temporary use at 557 North Mill street, formerly the Aspen Brewing Company, for the Jewish Community headquarters and offices. Mayor Ireland said this seems appropriate. Councilman Skadron said he would like to make sure that the facility will be used as described. Councilman Johnson brought up changes to the S/C/I zone discussed by Council and staff. Bendon noted discussion of S/C/I is on the work program and one of Council’s BYY goals is look at encouraging local businesses. Bendon said he receives frequent requests from business owners about locating in the S/C/I zone; however, most of them do not fit the nature of the zone district. Bendon stated this indicates that the S/C/I zone needs to be looked at. Rabbi Mendel Mintz told Council the Jewish Community Center looked at several alternatives for a temporary location and this fit more of the needs than others. Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. Councilman Johnson moved to adopt Resolution #102, Series of 2012; seconded by Councilman Frisch, All in favor, motion carried. RESOLUTION #103, SERIES OF 2012 – South Aspen Street Lodge P5 VI.b Regular Meeting Aspen City Council October 22, 2012 4 Councilman Johnson recused himself as he lives within 300 feet of the project. Chris Bendon, community development department, told Council the applicants are ASV LLC, represented by David Parker. This property is lots 1, 2, and 3 of the south Aspen street subdivision, west of South Aspen street, south of Dean street. This was previously reviewed as the Lodge at Aspen Mountain. There is a townhome approval for this property granted in 2003 for 14 free market units and 17 affordable housing units and is a fully entitled approval. Bendon reminded Council in 2008, four property owners including this property, the city of Aspen, Lift One Lodge and the Aspen Skiing Company, engaged in a master planning process known as COWOP I. This group presented a project to Council, which was not approved and the property owners separated. The Lift One Lodge received approval for its property across the street in 2011. Subsequently, there was a Lodge at Aspen Mountain COWOP, known as COWOP II. There were reductions in the overall scope and this received a recommendation of approval from the COWOP group but was never presented to Council. The property changed hands and is now owned by this applicant. The applicants presented a revised town home approval to Council, who requested the applicant look again at a lodging project. Council, P&Z and the applicant engaged in a sketch plan review in July 2012 to discuss parameters for a lodge project. Bendon said staff feels the townhome decision was unfortunate and it does little for the community and for the resort. Bendon noted the townhouses are 4500 square feet apiece; staff expects that these would be dormant much of the year and does not fill a need for the resort. This proposal is for a lodge on parcel 1, the lower parcel with 76 units at about above grade 84,000 square feet with a below grade parking garage. The building is 50’ at its highest point. The two upper parcels contain 35 free market residences, each of which has a lock off unit that could be rented separately. These units range in size from 1800 square feet to 2250 square feet. These two buildings have about 85,000 square feet. The heights are mid-30’ to mid-40’ with some higher areas for mechanical. Bendon told Council the affordable housing requirement for the project is 43 FTEs, 19 on site and 24 off site. The FTEs will be housed in 6 dormitory units and 4 one-bedroom units. The off-site units would be located at the Airport Business Center and are 8 two-bedroom units. Bendon pointed out the land use code allows for incentives for on-site affordable housing versus off-site housing. If all affordable housing were on site, 39 FTEs would meet the city requirements; the applicant is providing 43 FTEs. If all housing was off-site and there were no incentives, the requirement would be 89 FTEs. Bendon said this application requests all reviews for full entitlement to final PUD, design review; staff and the applicant have agreed to restrict this is a conceptual PUD and focus on program, site plan, massing, and visual effect. Staff and the applicant said agreement on these issues is fundamental on whether to go forward or not. It would be a waste of time to talk about architectural if there is not agreement on the program. Bendon reminded Council the majority of heights for the Lift One Lodge project approved for across the street are in the upper 40’s with the highest point being 56’. This project is roughly the same as the project across the street. Bendon said at the sketch plan, the 3 main points were the city’s desire for short term lodging on this site, discussion about heights and anything starting with a 6 for height would be nixed; discussion about the desirability of affordable housing on site and provided by this project. Bendon noted P&Z’s review focused on their concerns about the project and their suggestions P6 VI.b Regular Meeting Aspen City Council October 22, 2012 5 for the project. P&Z adopted a resolution outlining the concerns and suggestions. P&Z was concerned about free market residential, that it may feel like a private enclave, that it may be over balanced on free market; however, it might not be as bad as the townhouses. P&Z was concerned about the vehicular access point for the lodge on Garmisch street and the applicant relocated it to South Aspen street. P&Z suggested the free market portion function more lodge-like and assist the hotel to increase short term rental in the neighborhood. P&Z commented on maximizing on-street parking; discussions on vacating Juan street; increasing and/or decreasing affordable housing; clarification on the massing impacts. Bendon said the aim of this conceptual review is to garner a resolution from Council that approves of the program, site planning and massing and outlines requirements for final application. David Parker, representing the applicant, told Council they purchased the site in 2010 and purchased it with the hopes of building a hotel on site. Parker said after 12 months of study, they could not make it work and changed to work on making the existing townhomes better. When the revised townhouse plan was presented to Council, they requested to work together to see if a lodge could be built on this property. Parker said this hotel plan has the hotel building at the north end of the site, closer to downtown and across from the future surface lift. The size of the building has been increased to hold the 75 key-minimum hotel operators want. The upper two buildings are the same size. The affordable housing building was integrated into the lodge building. This is the project that was reviewed by P&Z where changes were made; the garage access was moved from Garmisch to Aspen, making Juan street just for residents. Vacating Juan street and moving the hotel into Juan street was discussed. P&Z requested sight lines and Parker showed elevations from the Lift One project, and compared to what COWOP II proposed and what the sight lines could be, the sight lines of the approved townhome plan and the previous hotel. Parker said the affordable housing is in two separate spots. Parker showed the proximity to Juan street with 10’ clearance to the entrance to the parking garage. Parker pointed out some of the proposed heights, tall as 58’ in some places. Parker showed renderings of the garage entrance, the upper and middle building from across the street and looking up the street. Parker noted at the sketch plan meeting, the applicants heard some support for this approach and willingness to discuss concessions on the city’s part in parking, fees and affordable housing. Parker said P&Z expressed support for a hotel; however, they had concerns about mass, height, the number of residential units and the configuration as free market residential, long term financial viability and affordable housing. Parker stated the applicants cannot put affordable housing on site and maintain the scale the community is looking for. Parker told Council hotel operators prefer 100 hotel rooms or more because of the seasonality of the market. Parker said the applicants are aware of the COWOP review and the community input on what is acceptable on this site. The applicants have concern about making a hotel work on this site and whether or not that size structure would be appropriate for the neighborhood. Councilman Skadron asked the size of the project from COWOP II. Parker said it was 131,000 square feet; this project is 170,000 square feet. The approved townhome project is 75,000 square feet including the affordable housing. Bendon said the townhome project also consumes the entire site. Councilman Skadron asked if the above ground massing has increased from P7 VI.b Regular Meeting Aspen City Council October 22, 2012 6 Council’s previous review. Parker said it has by another floor to the lower building to try and get more lodge rooms in the project. Councilman Skadron noted the applicants are asking for a decrease in impacts by about 70%; the FAR of the project has increased by 30%. Councilman Skadron said what is driving this proposal is Council’s desire and staff’s recommendation for a project that activates this part of town. Councilman Skadron asked if a hotel component subordinate to the free market units achieves that. Bendon said the townhouse project would have lower utilization of the property, given the size and value of the units. There will be more people on this property if it is a lodge. The proposed smaller free market units and more of them may have a higher utilization. Bendon said it would be interesting to discover at what point a size of a free market unit lend itself to staying in a short term rental pool. Bendon noted the market for timeshare units has decreased, thus a reluctance to build more fractional units. Bendon said staff’s position is that with this proposal, the entire property will act as a hotel. Councilman Skadron said some of his issues are that the buildings remain distinct, that gaps to Shadow mountain be appropriate, impacts to Juan street be mitigated as much as possible. Parker said the approved townhouse project is 5’ off the 2’ wall. This project is 10’ off the parking garage and the building is set back from that. Councilman Skadron asked what impact the garage wall will have on the quality of life for Juan street residents. The applicant pointed out this design is an improvement over the approved design for the property. Councilman Skadron asked the experience of accessing the mountain from this property as a local resident and is there drive up access to the lift. Bendon said there is drive up public access to Lift 1A. Councilman Skadron asked if this project detracts or enhances Aspen’s pursuit of small down character. Bendon said in general staff looks at how parcels in town can be leveraged for the entire Aspen experience. As a guest, an in-town lodge where you do not need a car and can walk is an Aspen experience for which guests pay money to do. This parcel can leverage those attributes. For the last 10 years, the city has said this parcel should be lodging. This property represents an opportunity for an Aspen experience. Councilman Torre asked the maximum occupancy for the lodge and for the free market. Parker said 150 in the hotel building and including the free market, 250 guests. Councilman Frisch and Mayor Ireland agreed the vitality in free market units has not proven to be the case. Mayor Ireland said the issue for Council is to choose between townhouse development and lodge development. Mayor Ireland opened the public hearing. Paul Taddune, representing Lift One Condominiums, pointed out the P&Z resolution states certain aspects of the project are hard to understand and that a 3-D rendering of the project would help understand the scale and mass of the project. Taddune requested that the applicant provide a 3-D rendering. Taddune noted there have been a cannibalization of the Lift One’s views and a diminution of experience to renters of the units. The proposed project has gone from 3 to 4 stories. Taddune reminded Council the previous applicant had conversations with surrounding property owners resulting in more positive experiences. Michael Morgan, Juan street homeowners, told Council he was a member of COWOP II and in favor of that project. Morgan said their HOA has been involved in almost all iterations of this project. Morgan said their concerns were addressed with the developer in the townhouse II P8 VI.b Regular Meeting Aspen City Council October 22, 2012 7 project. The major issues with this proposal are the loss of on street parking on Juan street; vacation of Juan street to allow for a hotel arrival/departure area, a 24 hour active business area 10’ from houses; air quality from idling vehicles, and safety for the children of the area. Morgan said they would like that entrance moved either farther east or to Aspen street. The height of 59’6” is an issue and is directly east of the Juan street units and Shadow mountain makes this area canyon-like. Kerri Johnson, Juan street, told Council her family, with 3 kids, has been a resident of Juan street for over 12 years. Ms. Johnson said this proposal has had no public outreach or regard for the families on Juan street. Ms. Johnson said there are 11 on street parking spaces, used by visitors, service people; the current plan has no on street parking with the closest parking 300 yards away. Ms. Johnson said they have enjoyed their side yards for 12 years and have worked with every other developer to maintain the side yard. This proposal will have the play area adjacent to a garage entrance. Juan street will be replaced by a large transit center and the entrance to the project will become the front yard for Juan street residents. Ms. Johnson noted Council is proposing reducing heights in the downtown core to 28’ and this proposal has 58’6” heights in a residential neighborhood. Ms. Johnson said the residents have worked with all former developers to address the concerns and allow the project to move forward. This plan is a disappointment and a step backwards. Ms. Johnson said the residents are open to working with applicants as they feel a lodge project in this location makes sense for the community and there are changes that can make the project work for the applicant and for the residents. Denis Murray, Trainer’s Landing, reminded Council mass and scale was a large debate in the COWOP process and people accepted 130,000 square feet. This project is above that size. The COWOP was in favor of “lights on” and this will be a private enclave for the upper two lots. Murray told Council one of the reasons for a favorable vote for the previous project was the 17 on-site affordable housing units. Mayor Ireland continued the public hearing. Councilman Torre said this proposal is further away from what he would support for this site. Councilman Torre agreed with P&Z comments that a majority of the square footage is given over to the free market portion of the project. Councilman Torre said he does not think the lock off units is viable. Moving the free market units up the hill seems to serve to increase their value. Councilman Torre said he favored the mixed use project in COWOP II. Councilman Torre stated he is still interested in trying to make a lodge work for this site. Councilman Frisch said the community and Council need to think big picture and it will be a failure if this site is only townhouses. Councilman Frisch said hotels need some financial support, like fractional units and Aspen has large mitigation fees/unit. Councilman Frisch asked why another 25 hotel rooms, for a total of 100, cannot be produced on site. Parker said they cannot put lodge rooms in the upper two buildings and every hotel room loses money; they do not pay for themselves. Parker said if two floors could be added to the lower building, they could add more hotel rooms. Councilman Frisch asked if the developer could produce another 25 rooms if the mitigation was zero. Parker said that would not produce more hotel rooms. Councilman Frisch said two issues that might help are height and mitigation; Councilman Frisch stated he is sensitive to the bulk and mass issues, which is a visible reminder for a long time. Parker said hotels are their specialty and the applicants have not been able to make a hotel work P9 VI.b Regular Meeting Aspen City Council October 22, 2012 8 on this site due to the general economics, the economics of Aspen and the seasonality of the market in Aspen. Councilman Frisch said his preference is to stay with the mass and scale and get more hotel rooms. Bendon told Council the focus is on the program, the uses, and their amount, the site plan and the massing. Bendon said Council should discuss the fees, possible abatements, where they are coming from, etc. Mayor Ireland said the applicant should meet with the neighbors, especially about the garage, to see what solutions can be worked out. Mayor Ireland noted how to pay for the fees is another issue. Mayor Ireland said the community looks for 60% affordable housing from developments; this project proposes 43 full time equivalents and 89 FTE represents 60. Units on site are counted more toward total mitigation and 19 units are on site, which would be a 38 FTE credit and 39 more units would be needed. Mayor Ireland noted projects have sold for $2500/square foot and $3000/square foot for on mountain luxury units does not seem unreasonable. Using this number, the project could garner $258 million in gross sales. Mayor Ireland proposed a tax of .000796% of fair market value assessed against the project on an annual basis through a homeowner’s association. Mayor Ireland said multiplying the $258 million times .000796 equals $20 million of assessed value and every mil of property taxes raises $1/thousand. One mil would raise $25,000 and the revenue stream could pay for the impacts from the owners of this property and would not be an upfront burden on the developer. Mayor Ireland said this seems to be a fair way to pay these impacts and spreads the costs over more owners. Mayor Ireland stated he is not supportive of building affordable housing at the Airport Business Center. Mayor Ireland said it is appropriate that the owners who are having an impact on the community should carry the burden. The burden on the homeowners would be tax deductible. Councilman Frisch asked the total FAR of the townhouse project. Parker said including affordable housing, it is about 75,000 square feet; this proposal is 170,000 square feet. Councilman Torre questioned the impact of 2 large buildings on the neighborhood and the community for 35 free market units; the community should not give up everything for 76 hotel units. Councilman Torre agreed he does not support affordable housing going out to the AABC. Parker said the developers can draw anything on this site; however, in order to make it financially feasible, they have parameters. Parker told Council the investors develop hotels for their living and they cannot make this site work as a hotel. Mayor Ireland stated his choice is whether to have 17 townhouses or something else and stated he would like to see a hotel on this site and is willing to make some compromises. Mayor Ireland said he would like this applicant to meet with the neighbors. Councilmembers Skadron and Frisch agreed. Councilman Skadron said the goal is to make Aspen better without making it bigger. Councilman Skadron stated this is predominantly a free market project with a lodging component; however, he will support moving forward. Mayor Ireland said he would like to see more affordable housing and would like to see those in town. Parker said the proposed mil levy only offsets for housing impacts, not hotel operations, which are a loss. Parker told Council the applicants have not met with the neighbors because they are trying to define the box. Mayor Ireland moved to continue the public hearing to November 12, 2012; seconded by Councilman Frisch. All in favor, motion carried. P10 VI.b Regular Meeting Aspen City Council October 22, 2012 9 Mayor Ireland moved to adjourn at 7:55 PM; seconded by Councilman Torre. All in favor, motion carried. 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DATE OF MEMO: 11/5/2012 MEETING DATE: 11/12/2012 RE: Ordinance # 2012 - Sales Tax Parks and Open Space Bonds Refunding REQUEST OF COUNCIL: This is for the City Council to approve on first reading, an ordinance to issue $9,285,000 in bonds to partially, advance refund outstanding 2005 Parks, Recreation and Open Space bonds. An advance refunding is a form of refinancing for municipal bonds and allows the City to lower its interest costs. PREVIOUS COUNCIL ACTION: : In August 2012, City Council gave staff direction to partially refund outstanding 2005 Parks, Recreation and Open Space Bonds. This was done and achieved $420,000 in interest savings over the life of the bond issue. Only a portion of the bonds were refunded in order to keep the issue size under $10,000,000 and therefore receive certain tax preferences as a small issue. Staff indicated that it would evaluate the feasibility of advance refunding another $10,000,000 of the outstanding 2005 bonds in 2013 if interest rates remained favorable. BACKGROUND: There is currently outstanding $8,580,000 in 2005B Parks Recreation and Open Space bonds that bear interest at 5.25% per annum. The call date on these bonds is 11/1/2015. On or after this date the City can send notice to the bond holders telling them there bonds are being called. In order to pay these bonds the City would issue new bonds today at a net interest cost of 2.35%. The money would be placed in an escrow until the call date. DISCUSSION: If the City proceeds with the bond issue and the interest rates remain unchanged the City will affect a savings of $1,398,000 over the life of the issue on a present value basis. The refunding has been structured to realize the savings on an annual basis resulting in about a P89 VII.c Page 2 of 2 $120,000 - $124,000 annual reduction in debt service costs over the remaining life of the bond issue. The ordinance on the agenda authorizes the issuance of $9,285,000 in bonds and provides for the terms of the bonds. The parameters for the authorization of the issuance are found in section 31 of the ordinance and provided that, among other terms, must achieve a present value interest savings of at least 5% of the amount of the bonds being refunded. The ordinance is written as a two reading emergency ordinance which will allow for it to become effective after the second reading with no referendum period. This allows for the Bonds to be marketed in the first week of December. If the Council decides to not do this as an emergency ordinance then the Bonds would not be marketed until early January to allow for the referendum period. FINANCIAL/BUDGET IMPACTS: The financial impacts of this second refunding tranche are a $1,398,000 present value savings over the remaining life of the outstanding 2005 Parks Recreation and Open Space Bonds. Click here to enter text. RECOMMENDED ACTION: Staff recommends approval of the issuance of Bonds to refund a portion of the outstanding 2005B bonds and to save on a present value basis $1,398,000. ALTERNATIVES: The alternative would be to not issue bonds for the refunding at this time and to reconsider at a later date. PROPOSED MOTION: I move to read Ordinance # 2012; I move to adopt Ordinance # 2012 on first reading CITY MANAGER COMMENTS: ATTACHMENTS: Financial structure of the proposed issue. P90 VII.c Nov5,2012 9:19am Page1 SOURCESANDUSESOFFUNDS CityofAspen SalesTaxRevenueRefundingBonds,Series2013 DatedDate 01/03/2013 DeliveryDate 01/03/2013 Sources: BondProceeds: ParAmount 9,300,028.30 Premium 702,787.70 10,002,816.00 Uses: RefundingEscrowDeposits: CashDeposit 0.88 SLGSPurchases 9,841,786.00 9,841,786.88 DeliveryDateExpenses: CostofIssuance 50,000.00 Underwriter'sDiscount 60,450.18 ReserveFundSurety 46,500.14 156,950.32 OtherUsesofFunds: AdditionalProceeds 4,078.80 10,002,816.00 P91 VII.c Nov5,2012 9:19am Page2 BONDDEBTSERVICE CityofAspen SalesTaxRevenueRefundingBonds,Series2013 DatedDate 01/03/2013 DeliveryDate 01/03/2013 Period Compounded Annual Ending Principal Coupon Interest Interest DebtService DebtService 05/01/2013 86,402.22 86,402.22 11/01/2013 109,094.70 1.000%131,800.00 905.30 241,800.00 328,202.22 05/01/2014 131,800.00 131,800.00 11/01/2014 63,536.20 1.250%131,800.00 1,463.80 196,800.00 328,600.00 05/01/2015 131,800.00 131,800.00 11/01/2015 62,397.40 1.450%131,800.00 2,602.60 196,800.00 328,600.00 05/01/2016 131,800.00 131,800.00 11/01/2016 65,000.00 2.000%131,800.00 196,800.00 328,600.00 05/01/2017 131,150.00 131,150.00 11/01/2017 65,000.00 2.000%131,150.00 196,150.00 327,300.00 05/01/2018 130,500.00 130,500.00 11/01/2018 70,000.00 2.000%130,500.00 200,500.00 331,000.00 05/01/2019 129,800.00 129,800.00 11/01/2019 70,000.00 2.000%129,800.00 199,800.00 329,600.00 05/01/2020 129,100.00 129,100.00 11/01/2020 70,000.00 2.000%129,100.00 199,100.00 328,200.00 05/01/2021 128,400.00 128,400.00 11/01/2021 70,000.00 2.000%128,400.00 198,400.00 326,800.00 05/01/2022 127,700.00 127,700.00 11/01/2022 850,000.00 2.500%127,700.00 977,700.00 1,105,400.00 05/01/2023 117,075.00 117,075.00 11/01/2023 2,525,000.00 3.000%117,075.00 2,642,075.00 2,759,150.00 05/01/2024 79,200.00 79,200.00 11/01/2024 2,600,000.00 3.000%79,200.00 2,679,200.00 2,758,400.00 05/01/2025 40,200.00 40,200.00 11/01/2025 2,680,000.00 3.000%40,200.00 2,720,200.00 2,760,400.00 9,300,028.30 3,035,252.22 4,971.70 12,340,252.22 12,340,252.22 P92 VII.c Nov5,2012 9:19am Page3 BONDPRICING CityofAspen SalesTaxRevenueRefundingBonds,Series2013 Principal OfferPrice Maturity Yieldto Call Call per$5,000 per$5,000 CABValue Premium BondComponent Date Amount Rate Yield Price Maturity Date Price atMaturity atMaturity atMaturity (-Discount) SerialBonds: 11/01/2016 65,000.00 2.000%0.840%104.360 2,834.00 11/01/2017 65,000.00 2.000%1.020%104.604 2,992.60 11/01/2018 70,000.00 2.000%1.150%104.777 3,343.90 11/01/2019 70,000.00 2.000%1.270%104.759 3,331.30 11/01/2020 70,000.00 2.000%1.510%103.603 2,522.10 11/01/2021 70,000.00 2.000%1.750%102.035 1,424.50 11/01/2022 850,000.00 2.500%1.910%105.262 44,727.00 11/01/2023 2,525,000.00 3.000%2.020%108.694 C 2.098%11/01/2022 100.000 219,523.50 11/01/2024 2,600,000.00 3.000%2.060%108.322 C 2.197%11/01/2022 100.000 216,372.00 11/01/2025 2,680,000.00 3.000%2.130%107.676 C 2.305%11/01/2022 100.000 205,716.80 9,065,000.00 702,787.70 Detached'B'Coupons: 11/01/2013 109,094.70 1.000%1.000%100.000 4,958.85 4,958.85 110,000 11/01/2014 63,536.20 1.250%1.250%100.000 4,887.40 4,887.40 65,000 11/01/2015 62,397.40 1.450%1.450%100.000 4,799.80 4,799.80 65,000 235,028.30 240,000 9,300,028.30 240,000 702,787.70 DatedDate 01/03/2013 DeliveryDate 01/03/2013 FirstCoupon 05/01/2013 ParAmount 9,300,028.30 Premium 702,787.70 Production 10,002,816.00 107.556834% Underwriter'sDiscount -60,450.18 -0.650000% PurchasePrice 9,942,365.82 106.906834% AccruedInterest NetProceeds 9,942,365.82 P93 VII.c Nov5,2012 9:19am Page4 SAVINGS CityofAspen SalesTaxRevenueRefundingBonds,Series2013 PresentValue Prior Refunding Annual to01/03/2013 Date DebtService DebtService Savings Savings @2.0869855% 05/01/2013 225,356.25 86,402.22 138,954.03 138,011.63 11/01/2013 225,356.25 241,800.00 -16,443.75 122,510.28 -16,163.56 05/01/2014 225,356.25 131,800.00 93,556.25 91,012.41 11/01/2014 225,356.25 196,800.00 28,556.25 122,112.50 27,492.91 05/01/2015 225,356.25 131,800.00 93,556.25 89,142.32 11/01/2015 225,356.25 196,800.00 28,556.25 122,112.50 26,927.99 05/01/2016 225,356.25 131,800.00 93,556.25 87,310.65 11/01/2016 225,356.25 196,800.00 28,556.25 122,112.50 26,374.68 05/01/2017 225,356.25 131,150.00 94,206.25 86,110.76 11/01/2017 225,356.25 196,150.00 29,206.25 123,412.50 26,420.75 05/01/2018 225,356.25 130,500.00 94,856.25 84,923.32 11/01/2018 225,356.25 200,500.00 24,856.25 119,712.50 22,023.60 05/01/2019 225,356.25 129,800.00 95,556.25 83,792.17 11/01/2019 225,356.25 199,800.00 25,556.25 121,112.50 22,178.55 05/01/2020 225,356.25 129,100.00 96,256.25 82,671.64 11/01/2020 225,356.25 199,100.00 26,256.25 122,512.50 22,317.83 05/01/2021 225,356.25 128,400.00 96,956.25 81,561.79 11/01/2021 225,356.25 198,400.00 26,956.25 123,912.50 22,442.03 05/01/2022 225,356.25 127,700.00 97,656.25 80,462.64 11/01/2022 1,000,356.25 977,700.00 22,656.25 120,312.50 18,474.55 05/01/2023 205,012.50 117,075.00 87,937.50 70,966.21 11/01/2023 2,675,012.50 2,642,075.00 32,937.50 120,875.00 26,306.30 05/01/2024 140,175.00 79,200.00 60,975.00 48,196.18 11/01/2024 2,740,175.00 2,679,200.00 60,975.00 121,950.00 47,698.45 05/01/2025 71,925.00 40,200.00 31,725.00 24,560.98 11/01/2025 2,811,925.00 2,720,200.00 91,725.00 123,450.00 70,278.66 13,926,350.00 12,340,252.22 1,586,097.78 1,586,097.78 1,391,495.46 SavingsSummary PVofsavingsfromcashflow 1,391,495.46 Plus:Refundingfundsonhand 4,078.80 NetPVSavings 1,395,574.26 P94 VII.c Nov5,2012 9:19am Page5 SUMMARYOFREFUNDINGRESULTS CityofAspen SalesTaxRevenueRefundingBonds,Series2013 DatedDate 01/03/2013 DeliveryDate 01/03/2013 Arbitrageyield 2.086985% Escrowyield 0.363185% BondParAmount 9,300,028.30 TrueInterestCost 2.269889% AverageLife 11.164 Paramountofrefundedbonds 8,585,000.00 Averagecouponofrefundedbonds 5.250000% Averagelifeofrefundedbonds 11.679 PVofpriordebtto01/03/2013@2.086985%11,461,775.29 NetPVSavings 1,395,574.26 Percentagesavingsofrefundedbonds 16.255961% Percentagesavingsofrefundingbonds 15.006129% P95 VII.c Nov5,2012 9:19am Page6 SUMMARYOFBONDSREFUNDED CityofAspen SalesTaxRevenueRefundingBonds,Series2013 Maturity Interest Par Call Call Bond Date Rate Amount Date Price SalesTaxRevenueBonds,Series2005B,20052012: SERIALS 11/01/2022 5.250%775,000.00 11/01/2015 100.000 11/01/2023 5.250%2,470,000.00 11/01/2015 100.000 11/01/2024 5.250%2,600,000.00 11/01/2015 100.000 11/01/2025 5.250%2,740,000.00 11/01/2015 100.000 8,585,000.00 P96 VII.c Nov5,2012 9:19am Page7 PRIORBONDDEBTSERVICE CityofAspen SalesTaxRevenueRefundingBonds,Series2013 Period Annual Ending Principal Coupon Interest DebtService DebtService 05/01/2013 225,356.25 225,356.25 11/01/2013 225,356.25 225,356.25 450,712.50 05/01/2014 225,356.25 225,356.25 11/01/2014 225,356.25 225,356.25 450,712.50 05/01/2015 225,356.25 225,356.25 11/01/2015 225,356.25 225,356.25 450,712.50 05/01/2016 225,356.25 225,356.25 11/01/2016 225,356.25 225,356.25 450,712.50 05/01/2017 225,356.25 225,356.25 11/01/2017 225,356.25 225,356.25 450,712.50 05/01/2018 225,356.25 225,356.25 11/01/2018 225,356.25 225,356.25 450,712.50 05/01/2019 225,356.25 225,356.25 11/01/2019 225,356.25 225,356.25 450,712.50 05/01/2020 225,356.25 225,356.25 11/01/2020 225,356.25 225,356.25 450,712.50 05/01/2021 225,356.25 225,356.25 11/01/2021 225,356.25 225,356.25 450,712.50 05/01/2022 225,356.25 225,356.25 11/01/2022 775,000 5.250%225,356.25 1,000,356.25 1,225,712.50 05/01/2023 205,012.50 205,012.50 11/01/2023 2,470,000 5.250%205,012.50 2,675,012.50 2,880,025.00 05/01/2024 140,175.00 140,175.00 11/01/2024 2,600,000 5.250%140,175.00 2,740,175.00 2,880,350.00 05/01/2025 71,925.00 71,925.00 11/01/2025 2,740,000 5.250%71,925.00 2,811,925.00 2,883,850.00 8,585,000 5,341,350.00 13,926,350.00 13,926,350.00 P97 VII.c Nov5,2012 9:19am Page8 ESCROWREQUIREMENTS CityofAspen SalesTaxRevenueRefundingBonds,Series2013 Period Principal Ending Interest Redeemed Total 05/01/2013 225,356.25 225,356.25 11/01/2013 225,356.25 225,356.25 05/01/2014 225,356.25 225,356.25 11/01/2014 225,356.25 225,356.25 05/01/2015 225,356.25 225,356.25 11/01/2015 225,356.25 8,585,000.00 8,810,356.25 1,352,137.50 8,585,000.00 9,937,137.50 P98 VII.c Nov5,2012 9:19am Page9 UNREFUNDEDBONDDEBTSERVICE CityofAspen SalesTaxRevenueRefundingBonds,Series2013 Period Annual Ending Principal Coupon Interest DebtService DebtService 05/01/2013 38,956.25 38,956.25 11/01/2013 100,000 3.600%38,956.25 138,956.25 177,912.50 05/01/2014 37,156.25 37,156.25 11/01/2014 100,000 3.700%37,156.25 137,156.25 174,312.50 05/01/2015 35,306.25 35,306.25 11/01/2015 100,000 3.750%35,306.25 135,306.25 170,612.50 05/01/2016 33,431.25 33,431.25 11/01/2016 100,000 4.000%33,431.25 133,431.25 166,862.50 05/01/2017 31,431.25 31,431.25 11/01/2017 100,000 4.000%31,431.25 131,431.25 162,862.50 05/01/2018 29,431.25 29,431.25 11/01/2018 100,000 4.000%29,431.25 129,431.25 158,862.50 05/01/2019 27,431.25 27,431.25 11/01/2019 27,431.25 27,431.25 54,862.50 05/01/2020 27,431.25 27,431.25 11/01/2020 27,431.25 27,431.25 54,862.50 05/01/2021 27,431.25 27,431.25 11/01/2021 27,431.25 27,431.25 54,862.50 05/01/2022 27,431.25 27,431.25 11/01/2022 1,045,000 5.250%27,431.25 1,072,431.25 1,099,862.50 1,645,000 630,875.00 2,275,875.00 2,275,875.00 P99 VII.c Nov5,2012 9:19am Page10 AGGREGATEDEBTSERVICE CityofAspen SalesTaxRevenueRefundingBonds,Series2013 SalesTax SalesTax SalesTax Revenue Revenue ParksSales Revenue Refunding SalesTax Refunding TaxRevenue Refunding Period Bonds,Series RevenueBonds,Bonds,Series Ref.Bonds,Bonds,Series Unrefunded Aggregate Ending 2013 Series2012 2012 Series2009 2005 Bonds DebtService 11/01/2013 328,202.22 167,605.21 191,922.92 819,287.50 1,179,587.50 177,912.50 2,864,517.85 11/01/2014 328,600.00 154,712.50 195,575.00 816,787.50 1,179,387.50 174,312.50 2,849,375.00 11/01/2015 328,600.00 154,712.50 194,075.00 821,387.50 1,181,643.76 170,612.50 2,851,031.26 11/01/2016 328,600.00 154,712.50 192,575.00 823,087.50 1,177,250.00 166,862.50 2,843,087.50 11/01/2017 327,300.00 154,712.50 191,075.00 821,087.50 1,180,225.00 162,862.50 2,837,262.50 11/01/2018 331,000.00 154,712.50 199,575.00 821,975.00 1,178,225.00 158,862.50 2,844,350.00 11/01/2019 329,600.00 154,712.50 867,450.00 815,525.00 651,000.00 54,862.50 2,873,150.00 11/01/2020 328,200.00 154,712.50 1,519,800.00 821,800.00 54,862.50 2,879,375.00 11/01/2021 326,800.00 154,712.50 1,521,200.00 816,400.00 54,862.50 2,873,975.00 11/01/2022 1,105,400.00 154,712.50 72,800.00 1,099,862.50 2,432,775.00 11/01/2023 2,759,150.00 154,712.50 2,913,862.50 11/01/2024 2,758,400.00 154,712.50 2,913,112.50 11/01/2025 2,760,400.00 154,712.50 2,915,112.50 11/01/2026 834,712.50 834,712.50 11/01/2027 834,312.50 834,312.50 11/01/2028 838,312.50 838,312.50 11/01/2029 836,562.50 836,562.50 11/01/2030 839,212.50 839,212.50 11/01/2031 836,112.50 836,112.50 11/01/2032 837,412.50 837,412.50 12,340,252.22 7,880,792.71 5,146,047.92 7,377,337.50 7,727,318.76 2,275,875.00 42,747,624.11 P100 VII.c Nov5,2012 9:19am Page11 BONDSUMMARYSTATISTICS CityofAspen SalesTaxRevenueRefundingBonds,Series2013 DatedDate 01/03/2013 DeliveryDate 01/03/2013 LastMaturity 11/01/2025 ArbitrageYield 2.086985% TrueInterestCost(TIC)2.269889% All-InTIC 2.323028% AverageLife(years)11.164 DurationofIssue(years)9.645 ParAmount 9,300,028.30 BondProceeds 10,002,816.00 TotalInterest 3,035,252.22 NetInterest 2,392,914.70 BondYearsfromDatedDate 103,821,687.76 BondYearsfromDeliveryDate 103,821,687.76 TotalDebtService 12,340,252.22 MaximumAnnualDebtService 2,760,400.00 AverageAnnualDebtService 961,994.54 Underwriter'sFees(per$1000) AverageTakedown OtherFee 6.500000 TotalUnderwriter'sDiscount 6.500000 BidPrice 106.906834 Par Average Average PVof1bp BondComponent Value Price Coupon Life change Detached'B'Coupons 235,028.30 100.000 1.629 38.05 SerialBonds 9,065,000.00 107.753 2.934%11.411 8,241.80 9,300,028.30 11.164 8,279.85 All-In Arbitrage TIC TIC Yield ParValue 9,300,028.30 9,300,028.30 9,300,028.30 +AccruedInterest +Premium(Discount)702,787.70 702,787.70 702,787.70 -Underwriter'sDiscount -60,450.18 -60,450.18 -CostofIssuanceExpense -50,000.00 -OtherAmounts -46,500.14 -46,500.14 -46,500.14 TargetValue 9,895,865.68 9,845,865.68 9,956,315.86 TargetDate 01/03/2013 01/03/2013 01/03/2013 Yield 2.269889%2.323028%2.086985% P101 VII.c Nov5,2012 9:19am Page12 ESCROWSTATISTICS CityofAspen SalesTaxRevenueRefundingBonds,Series2013 Modified Yieldto Yieldto Perfect Valueof Total Duration PVof1bp Receipt Disbursement Escrow Negative Costof EscrowCost (years)change Date Date Cost Arbitrage DeadTime GlobalProceedsEscrow: 9,841,786.88 2.652 2,609.47 0.363185%0.363185%9,404,257.06 437,529.78 0.04 9,841,786.88 2,609.47 9,404,257.06 437,529.78 0.04 Deliverydate 01/03/2013 Arbitrageyield 2.086985% P102 VII.c DRAFT: 11/5/12 4848-7017-6785.3 CERTIFIED RECORD OF PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO RELATING TO AN ORDINANCE AUTHORIZING THE ISSUANCE OF: Up to $9,090,000 City of Aspen, Colorado Sales Tax Revenue Refunding Bonds Series 2013 This cover page is not a part of the following ordinance and is included solely for the convenience of the reader. P103 VII.c TABLE OF CONTENTS Page 4848-7017-6785.3 Section 1. Definitions.............................................................................................................. 5 Section 2. Authorization and Purpose of Series 2013 Bonds ............................................... 12 Section 3. Series 2013 Bond and Registered Coupons Details ............................................ 12 Section 4. Form of Series 2013 Bonds and Registered Coupons ......................................... 14 Section 5. Registration, Transfer and Exchange of Series 2013 Bonds................................ 14 Section 6. Replacement of Lost, Destroyed or Stolen Series 2013 Bonds ........................... 15 Section 7. Execution of Series 2013 Bonds and Registered Coupons .................................. 15 Section 8. Redemption of Series 2013 Bonds Prior to Maturity .......................................... 15 Section 9. Delivery of Series 2013 Bonds Upon Original Issuance ..................................... 16 Section 10. Creation and Reaffirmation of Funds and Accounts............................................ 16 Section 11. Application of Proceeds of Series 2013 Bonds .................................................... 17 Section 12. Special Obligations; Pledge and Lien for Payment of Bonds .............................. 17 Section 13. Conditions to Issuance of Additional Parity Bonds ............................................. 19 Section 14. Application of Pledged Revenues ........................................................................ 21 Section 15. Bond Fund ............................................................................................................ 22 Section 16. Series 2013 Reserve Fund .................................................................................... 22 Section 17. Escrow Account ................................................................................................... 24 Section 18. Rebate Fund ......................................................................................................... 24 Section 19. Payments to and by Paying Agent ....................................................................... 25 Section 20. General Administration of Funds......................................................................... 25 Section 21. Additional General Covenants ............................................................................. 26 Section 22. Covenants Regarding Exclusion of Interest on Series 2013 Bonds from Gross Income for Federal Income Tax Purposes ................................................. 27 Section 23. Defeasance ........................................................................................................... 28 Section 24. Events of Default ................................................................................................. 29 Section 25. Remedies for and Duties Upon Events of Default ............................................... 29 Section 26. Amendment of Ordinance .................................................................................... 30 Section 27. Appointment and Duties of Paying Agent ........................................................... 31 Section 28. Parties Interested Herein ...................................................................................... 31 Section 29. Events Occurring on Days That Are Not Business Days .................................... 31 Section 30. Findings and Determinations ............................................................................... 31 Section 31. Delegation and Parameters .................................................................................. 33 Section 32. Authorization to Execute Documents .................................................................. 34 Section 33. Authorization of Bond Insurance and Series 2013 Surety Bond ......................... 35 Section 34. Approval of Official Statement ............................................................................ 35 Section 35. Application of Supplemental Act ......................................................................... 35 Section 36. Limitation of Actions ........................................................................................... 35 Section 37. Ratification of Prior Actions ................................................................................ 36 Section 38. Repeal of Inconsistent Resolutions; Contract with Owners of Series 2013 Bonds; Resolution Irrepealable ............................................................................ 36 Section 39. Headings, Table of Contents and Cover Page ..................................................... 36 Section 40. Severability .......................................................................................................... 36 Section 41. Recordation .......................................................................................................... 36 Section 42. Declaration of Emergency and Effective Date .................................................... 36 APPENDIX A FORM OF SERIES 2013 BOND P104 VII.c 4848-7017-6785.3 ORDINANCE NO. 26 (SERIES OF 2012) AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE CITY OF ASPEN, COLORADO, OF ITS SALES TAX REVENUE REFUNDING BONDS, SERIES 2013, IN THE AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $9,090,000, FOR THE PURPOSE OF ADVANCE REFUNDING A PORTION OF THE CITY’S SALES TAX REVENUE BONDS, SERIES 2005B; PRESCRIBING THE FORM OF THE SERIES 2013 BONDS; PROVIDING FOR THE PAYMENT OF THE SERIES 2013 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 2013 BONDS; DELEGATING THE AUTHORITY TO MAKE A FINAL DETERMINATION OF CERTAIN TERMS OF THE SERIES 2013 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 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 P105 VII.c 2 4848-7017-6785.3 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; 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, P106 VII.c 3 4848-7017-6785.3 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 $10,230,000, 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 $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, on October 1, 2012, pursuant to its Ordinance No. 22 (Series of 2012) (the “Series 2012 Ordinance”), the City issued the City of Aspen, Colorado, Sales Tax Revenue P107 VII.c 4 4848-7017-6785.3 Refunding and Improvement Bonds, Series 2012 (the “Series 2012 Bonds”), originally issued and presently outstanding in the aggregate principal amount of $9,385,000, for the purpose of refunding a portion of the Series 2005B Bonds and funding the costs of purchasing and improving trail, recreation and open space properties and ancillary facilities; 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, the Series 2009 Bonds and the Series 2012 Bonds, pursuant to the Series 2005 Ordinance, the Series 2005B Ordinance, the Series 2009 Ordinance and the Series 2012 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”), and for the purpose of refunding such Refunded Bonds at a lower interest rate, acquiring a reserve fund surety bond or funding a reserve fund and to fund costs of issuance, to issue the City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2013 (the “Series 2013 Bonds”) in the aggregate principal amount of up to $9,090,000; and WHEREAS, pursuant to the delegation authority herein, in the event that the principal amount of the Series 2013 Bonds exceeds the principal amount of the Refunded Bonds, in accordance with Section 11-56-107, C.R.S., the principal amount of the Series 2013 Bonds, when combined with the principal amount of the Series 2005B Bonds outstanding which is not being refunded and the principal amount of the Series 2012 Bonds allocated to the refunding of a portion of the Series 2005B Bonds, will not exceed the total original authorized principal amount of the Series 2005B Bonds, such that the Series 2013 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 Series 2013 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, the Series 2009 Bonds and the Series 2012 Bonds; and WHEREAS, a portion of the proceeds derived from the sale of the Series 2013 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 WHEREAS, the City Council has been presented with a proposal from Stifel Nicolaus & Company, Incorporated, of Denver, Colorado, to purchase the Series 2013 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 P108 VII.c 5 4848-7017-6785.3 Council has determined that the negotiated sale of the Series 2013 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 2013 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 2013 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 2013 Bonds, to provide for the payment of the Series 2013 Bonds and to provide the details of the Series 2013 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 2013 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 2013 Bonds and, if so determined, to identify the Bond Insurer and execute the Commitment; to determine whether, regardless of whether a financial guaranty insurance policy is obtained to insure the Series 2013 Bonds, a surety bond is to be obtained to secure payments on the Series 2013 Bonds (or, in the alternative, whether a reserve fund shall be funded from proceeds of the Series 2013 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: P109 VII.c 6 4848-7017-6785.3 “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, the Series 2012 Bonds and the Series 2013 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 2013 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 2013 Bonds as provided therein. “Bond Insurer” means the entity, if any, set forth in the Sale Certificate, or any successor thereto. “Bond Obligation” means, as of any date, the principal amount of the Series 2013 Bonds Outstanding as of such date. For purposes of the Sections hereof entitled “Remedies for and Duties Upon Events of Default” and “Amendment of Ordinance,” Bond Obligation shall be deemed to include the amount payable on the Registered Coupons, as set forth in the Section hereof entitled “Series 2013 Bond and Registered Coupon Details,” which has not been paid as of the date on which such Sections are being applied. “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, the Series 2013 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. P110 VII.c 7 4848-7017-6785.3 “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. “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 2013 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 2013, 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 2013 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 2013 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. P111 VII.c 8 4848-7017-6785.3 “Original Parks and Open Space Sales Tax Ordinance” means the City’s Ordinance No. 16, Series of 1970. “Outstanding” means, as of any date, all Bonds, except the following: (a) any Bond cancelled by the City or the Paying Agent, or otherwise on the City’s behalf, at or before such date; (b) any Bond held by or on behalf of the City; (c) any Bond for the payment or the redemption of which moneys or Defeasance Securities sufficient to meet all of the payment requirements of the principal of, interest on, and any premium due in connection with the redemption of such Bond to the date of maturity or any redemption date thereof, shall have theretofore been deposited in trust for such purpose in accordance with Section 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 2013 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 P112 VII.c 9 4848-7017-6785.3 — Rural Economic Community Development Administration — U.S. Maritime Administration — Small Business Administration — U.S. Department of Housing & Urban Development (PHA’s) — Federal Housing Administration — Federal Financing Bank; (d) direct obligations of any of the following federal agencies which obligations are not fully guaranteed by the full faith and credit of the United States of America: senior debt obligations issued by the Federal National Mortgage Association (FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC); obligations of the Resolution Funding Corporation (REFCORP); senior debt obligations of the Federal Home Loan Bank System; and senior debt obligations of other Government Sponsored Agencies approved by Ambac; (e) U.S. dollar denominated deposit accounts, federal funds and banker’s acceptances with domestic commercial banks which have a rating on their short-term certificates of deposit on the date of purchase of “A 1” or “A 1+” by S&P and “P 1” by 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 P113 VII.c 10 4848-7017-6785.3 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 (j) investment agreements and other forms of investments approved in writing by the Bond Insurer. “Person” means a corporation, firm, other body corporate, partnership, association or individual and also includes an executor, administrator, trustee, receiver or other representative appointed according to law. “Pledged Revenues” means, for each fiscal year, all of the proceeds of the Parks and Open Space Sales Tax after deduction of the reasonable and necessary costs and expenses of collecting and enforcing the Parks and Open Space Sales Tax, if any. “Rebate Fund” means the City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2013, 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. “Refunding Act” means the Public Securities Refunding Act codified in Article 56 of Title 11, Colorado Revised Statutes, as amended. “Registered Coupons” means the separate, detached registered coupons evidencing supplemental interest on the Series 2013 Bonds designated as “B,” as set forth in the Section hereof entitled “Series 2013 Bond and Registered Coupons Details,” if the Sale Certificate provides that the Series 2013 Bonds shall bear such supplemental interest. Until the last “B” interest payment date for the supplemental interest (as set forth in the subsection hereof entitled “Series 2013 Bond and Registered Coupon Details—Maturity Dates, Principal Amounts and Interest Rates”), the defined term Series 2013 Bonds shall include the Registered Coupons, if any, and references to interest on the Series 2013 Bonds shall include all amounts payable on the Registered Coupons, if any, except that: (a) the term “Bonds” does not include the Registered Coupons in the Sections hereof entitled “Series 2013 Bond and Registered Coupon Details,” “Form of Series 2013 Bonds and Registered Coupons,” “Registration, Transfer and Exchange of Series 2013 Bonds and Registered Coupons,” “Execution of Series 2013 Bonds and Registered Coupons” and “Redemption of Series 2013 Bonds Prior to Maturity”; and (b) for purposes of the Section hereof entitled “Federal Income Tax Covenants,” only a portion of the amounts payable on the Registered Coupons shall be treated as interest, as described in the section of the Official Statement describing the federal income tax treatment of interest on the Series 2013 Bonds. P114 VII.c 11 4848-7017-6785.3 “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, the Series 2013 Reserve Fund, and/or any reserve fund or funds established for Additional Parity Bonds. “Reserve Fund Contract” has the meaning specified in Section 16(c)(i) hereof. “Reserve Fund Requirement” means, as of any date on which it is calculated, with respect to each series of Bonds, the least of (a) 10% of the principal amount of such series of Bonds, (b) the maximum annual debt service in any calendar year on the Outstanding Bonds of such series or (c) 125% of the average annual debt service on the Bonds of such series; provided, however, that the Reserve Fund Requirement may be reduced if, in the opinion of Bond Counsel, the funding or maintenance of it at the level otherwise determined pursuant to this definition will adversely affect the exclusion from gross income tax for federal income tax purposes of interest on any of the Bonds. “Revenue Fund” means the “City of Aspen, Colorado, Parks and Open Space Sales Tax Revenue Bonds Revenue Fund” which fund is reaffirmed as such pursuant to Section 10(b) hereof. “Sale Certificate” means the certificate executed by the Sale Delegate under the authority delegated pursuant to this Ordinance, which sets forth, among other things, the prices at which the 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 2013 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. P115 VII.c 12 4848-7017-6785.3 “Series 2012 Reserve Fund” means the Reserve Fund established for the Series 2012 Bonds pursuant to the Series 2012 Ordinance. “Series 2013 Bonds” means the City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2013, authorized in the aggregate principal amount of up to $9,090,000. The defined term Series 2013 Bonds shall include the Registered Coupons, if any, as described in the definition of “Registered Coupons” herein. “Series 2013 Reserve Fund” means the City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2013, Reserve Fund created in Section 10(a)(ii) hereof. “Series 2013 Reserve Policy Agreement” means the reserve policy agreement, if any, with respect to the Series 2013 Bonds and the Series 2013 Surety Bond, between the City and the Bond Insurer. “Series 2013 Surety Bond” means the Reserve Fund Contract, if any, issued by the Bond Insurer guaranteeing certain payments from the Series 2013 Reserve Fund with respect to the Series 2013 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 2013 Bonds. Pursuant to and in accordance with the Constitution of the State, the Charter, the Supplemental Act and the Refunding Act, the City hereby authorizes, and directs that there shall be issued, the “City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2013” in the aggregate principal amount set forth in the Sale Certificate (the “Series 2013 Bonds”) for the purpose of refunding the Refunded Bonds, purchasing the Series 2013 Surety Bond (if any) or otherwise funding the Series 2013 Reserve Fund, and paying the costs of issuance of the Series 2013 Bonds. Section 3. Series 2013 Bonds and Registered Coupons Details. (a) Registered Form, Denominations, Original Dated Date and Numbering. The Series 2013 Bonds and Registered Coupons shall be issued as fully registered bonds, shall be dated as of the date set forth in the Sale Certificate, and shall be registered in the names of the Persons identified in the registration books of the City maintained by the Paying Agent. The Series 2013 Bonds shall be issued in denominations of $5,000 in principal amount or any integral multiple thereof. The Registered Coupons shall be issued in denominations of $5,000 in the amount of “B” interest due on the “B” interest payment date set forth in subsection (b) of this Section. The Series 2013 Bonds shall be consecutively numbered, beginning with the number one, preceded by the letter “R.” The Registered Coupons shall be consecutively numbered, beginning with the number one, preceded by the letters “RC.” P116 VII.c 13 4848-7017-6785.3 (b) Maturity Dates, Principal Amounts and Interest Rates. The Series 2013 Bonds shall mature on November 1 of the years and in the principal amounts, and shall bear interest designated “A” and, if so determined by the Sale Delegate, supplemental interest designated “B”, at the rates per annum (calculated based on a 360-day year of twelve 30-day months) set forth in the Sale Certificate. The supplemental interest designated “B”, if any, shall be evidenced by Registered Coupons payable in specific dollar amounts. (c) Accrual and Dates of Payment of Interest. “A” interest on the Series 2013 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. “B” interest represented by the Registered Coupons shall accrue at the rates set forth in the Sale Certificate, commencing on the original dated date and ending on the “B” interest payment date specified in the Sale Certificate for the weighted average maturity principal amount of Series 2013 Bonds scheduled to be outstanding during such accrual period, and be paid as provided in subsection (b) of this Section. (d) Manner and Form of Payment. Principal of, premium, if any, and the final installment of interest on each Series 2013 Bond and the amount payable on each Registered Coupon shall be payable to the Owner thereof upon presentation and surrender of such Series 2013 Bond or Registered Coupon at the principal office of the Paying Agent in the city identified in the definition of Paying Agent in Section 1 hereof. “A” interest (other than the final installment of interest) on each Series 2013 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; provided that “A” interest payable to any Owner may be paid by any other means agreed to by such Owner and the Paying Agent that does not require the City to make moneys available to the Paying Agent earlier than otherwise required hereunder or increase the costs borne by the City hereunder. All payments of the principal of, premium, if any, and interest on the Series 2013 Bonds (including the Registered Coupons) shall be made in lawful money of the United States of America. (e) Book-Entry Registration. Notwithstanding any other provision hereof, the Series 2013 Bonds and the Registered Coupons shall be delivered only in book entry form registered in the name of Cede & Co., as nominee of DTC, acting as securities depository of the Series 2013 Bonds and the Registered Coupons and principal of and “A” interest on the Series 2013 Bonds and the “B” interest payable on the Registered Coupons 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 2013 Bonds and the Registered Coupons, the Paying Agent may, at its discretion, either (i) designate a substitute securities depository for DTC and reregister the Series 2013 Bonds and the Registered Coupons as directed by such substitute securities depository or (ii) terminate the book entry registration system and P117 VII.c 14 4848-7017-6785.3 reregister the Series 2013 Bonds and the Registered Coupons 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 2013 Bonds and the Registered Coupons are reregistered at the direction of any substitute securities depository, any beneficial owner of the Series 2013 Bonds and the Registered Coupons 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 2013 Bonds and the Registered Coupons are reregistered. (f) Final Determination of Series 2013 Bond and Registered Coupons Details. The authority to determine other details of the Series 2013 Bonds and Registered Coupons, if any, is delegated to the Sale Delegate in the Section hereof entitled “Delegation and Parameters.” Section 4. Form of Series 2013 Bonds and Registered Coupons. The Series 2013 Bonds shall be in substantially the form set forth in Appendix A hereto and the Registered Coupons shall be in substantially the form set forth in Appendix B 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 appendices for the convenience of the reader, Appendix A and Appendix B are an integral part of this Ordinance and are incorporated herein as if set forth in full in the body of this Ordinance. Section 5. Registration, Transfer and Exchange of Series 2013 Bonds. The Paying Agent shall maintain registration books in which the ownership, transfer and exchange of Series 2013 Bonds and Registered Coupons shall be recorded. The Person in whose name any Series 2013 Bond or Registered Coupon 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 2013 Bond or Registered Coupon 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 2013 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 2013 Bonds of other authorized denominations of the same maturity and “A” 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 2013 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 2013 Bond. The Registered Coupons 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 amount of “B” interest due with respect to the Series 2013 Bonds of other authorized denominations of the same payment date, upon payment by the transferee of a transfer fee, any tax or governmental charge required to be paid with respect to P118 VII.c 15 4848-7017-6785.3 such transfer or exchange and any cost of printing bonds in connection therewith. Upon surrender for transfer of any Registered Coupon, 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 Registered Coupon. Section 6. Replacement of Lost, Destroyed or Stolen Series 2013 Bonds. If any Series 2013 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 2013 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 2013 Bond lost, destroyed or taken, and (d) payment of the cost of preparing and executing the new Series 2013 Bond or Bonds. Section 7. Execution of Series 2013 Bonds and Registered Coupons. The Series 2013 Bonds and Registered Coupons shall be executed in the name and on behalf of the City with the manual or facsimile signature of the Mayor or Mayor Pro Tem of the City, shall bear a manual or facsimile of the seal of the City and shall be attested by the manual or facsimile signature of the City Clerk or Deputy or Assistant City Clerk, all of whom are hereby authorized and directed to prepare and execute the Series 2013 Bonds and Registered Coupons in accordance with the requirements hereof. Should any officer whose manual or facsimile signature appears on the Series 2013 Bonds or Registered Coupons cease to be such officer before delivery of any Series 2013 Bond or Registered Coupons, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. When the Series 2013 Bonds and Registered Coupons have been duly executed, the officers of the City are authorized to, and shall, deliver the Series 2013 Bonds and Registered Coupons to the Paying Agent for authentication. No Series 2013 Bond or Registered Coupon 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 2013 Bond or Registered Coupon shall be conclusive evidence, and the only competent evidence, that such Series 2013 Bond or Registered Coupons, as applicable, has been properly authenticated and delivered hereunder. Section 8. Redemption of Series 2013 Bonds Prior to Maturity. (a) Optional Redemption. The Series 2013 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 2013 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 P119 VII.c 16 4848-7017-6785.3 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 2013 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 2013 Bonds with the same maturity date as the Series 2013 Bonds subject to such sinking fund redemption and (ii) receive a credit in respect of its sinking fund redemption obligation for any Series 2013 Bonds with the same maturity date as the Series 2013 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 2013 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 2013 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 2013 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 2013 Bond being redeemed. Such notice shall specify the number or numbers of the Series 2013 Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any Series 2013 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 2013 Bond on the redemption date, then such Series 2013 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 2013 Bonds with respect to which such failure or defect did not occur. Any Series 2013 Bond redeemed prior to its maturity by prior redemption or otherwise shall not be reissued and shall be cancelled. Section 9. Delivery of Series 2013 Bonds Upon Original Issuance. Prior to the authentication and delivery by the Paying Agent of the Series 2013 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 2013 Bonds and to deliver the Series 2013 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 2013 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: P120 VII.c 17 4848-7017-6785.3 (i) the Series 2013 Rebate Fund, designated as the “City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2013, Rebate Fund;” and (ii) the Series 2013 Reserve Fund, designated as the “City of Aspen, Colorado, Sales Tax Revenue Refunding Bonds, Series 2013, 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 2013 Bonds. The proceeds received by the City from the sale of the Series 2013 Bonds shall be applied generally as set forth below, and as more particularly provided in the Sale Certificate: (a) to the Escrow Account, proceeds of the Series 2013 Bonds which are sufficient to pay the Refunded Bond Requirements in accordance with the Escrow Agreement; and (b) to fund the Series 2013 Reserve Fund or to pay for the Series 2013 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 2013 Bonds, including any premium due with respect to a Bond Insurance Policy (if any). Section 12. Special Obligations; Pledge and Lien for Payment of Bonds. (a) Series 2013 Bonds. The City hereby pledges the Pledged Revenues, the Bond Fund, the Series 2013 Reserve Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on the Series 2013 Bonds at any time Outstanding, and grants an irrevocable and first lien for such purpose on the Pledged Revenues, the Bond Fund, the Series 2013 Reserve Fund and the Revenue Fund. (b) Series 2012 Bonds. The City hereby further 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 (but not necessarily an exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2012 Reserve Fund and the Revenue Fund. The lien of the Series 2012 Bonds on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, the Series 2013 Bonds and any Additional Parity Bonds. P121 VII.c 18 4848-7017-6785.3 (c) 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, the Series 2013 Bonds and any Additional Parity Bonds. (d) 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, the Series 2013 Bonds and any Additional Parity Bonds. (e) Series 2005 Bonds. The City hereby further pledges the Pledged Revenues, the Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on the Series 2005 Bonds at any time Outstanding, and grants an irrevocable and first lien (but not necessarily an exclusive such lien) for such purpose on the Pledged Revenues, the Bond Fund, the Series 2005 Reserve Fund and the Revenue Fund. The lien of the Series 2005 Bonds on the Pledged Revenues, the Bond Fund, and the Revenue Fund is on parity with the lien of the Series 2005B Bonds, the Series 2009 Bonds, the Series 2012 Bonds, the Series 2013 Bonds and any Additional Parity Bonds. (f) Additional Parity Bonds. Subject to Section 13 hereof, the City also hereby pledges the Pledged Revenues, the Bond Fund and the Revenue Fund for the payment of the principal of, premium, if any, and interest on any Additional Parity Bonds at any time Outstanding, and grants an irrevocable and first lien for such purpose on the Pledged Revenues, the Bond Fund and the Revenue Fund. (g) Equally and Ratably Secured. The Bonds shall be equally and ratably secured by the pledge of and lien on the Pledged Revenues, the Bond Fund and the Revenue Fund granted by this Section and shall not be entitled to any priority one over the other in the application of Pledged Revenues or the moneys on deposit at any time in the Bond Fund and the Revenue Fund. (h) Superior Liens Prohibited. The City shall not pledge or create any other lien on the revenues and moneys pledged pursuant to this Section that is superior to the pledge thereof or lien thereon pursuant hereto. P122 VII.c 19 4848-7017-6785.3 (i) Subordinate Liens Permitted. Nothing herein shall prohibit the City from pledging or creating a lien on the revenues and moneys pledged and the lien created pursuant to subsections (a) – (e) 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. (j) No Prohibition on Additional Security. Nothing herein shall prohibit the City from (i) using, pledging or granting a lien on any revenues from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other moneys for the payment of the principal of, premium, if any, or interest on the Bonds or (ii) depositing any revenues from the Parks and Open Space Sales Tax that are not Pledged Revenues or any other moneys into the Bond Fund or the Revenue Fund (and thereby subjecting the moneys so deposited to the pledge made and lien granted by this Section). (k) Bonds are Special, Limited Obligations of the City. The Bonds are special, limited obligations of the City payable solely from and secured solely by the Pledged Revenues and the other sources specified in this Ordinance and shall not be deemed or construed as creating a debt or indebtedness of the City within the meaning of any constitutional or statutory limitation. Section 13. Conditions to Issuance of Additional Parity Bonds. So long as any Bonds may be Outstanding: (a) Limitations Upon Issuance of Additional Parity Bonds. Nothing in this Ordinance shall be construed to prevent the issuance by the City of Additional Parity Bonds (including refunding obligations) payable in whole or in part from the Pledged Revenues (or any designated part thereof) and constituting a lien thereon on a parity with, but not prior or superior to, the lien of the Series 2013 Bonds, 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 2013 Reserve 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). P123 VII.c 20 4848-7017-6785.3 (iii) The ordinance authorizing such Additional Parity Bonds shall require that a reserve fund for Additional Parity Bonds be created in an amount equal to the Reserve Fund Requirement for such Additional Parity Bonds. The City may, however, comply with the Reserve Fund Requirement through a Reserve Fund Contract that meets the standards established in Section 16 hereof. (b) Certificate of Revenues. A written certification by a certified public accountant who is not a regular salaried employee of the City that such Pledged Revenues are sufficient to pay the amounts required by paragraph (a)(ii) of this Section shall be conclusively presumed to be accurate in determining the right of the City to authorize, issue, sell and deliver Additional Parity Bonds. (c) Subordinate Obligations Permitted. Nothing in this Ordinance shall be construed to prevent the issuance by the City of additional obligations (including refunding obligations) payable from the Pledged Revenues (or any designated part thereof) and having a lien thereon subordinate or junior to the lien of the Bonds. (d) Superior Obligations Prohibited. Nothing in this Ordinance shall be construed to permit the City to issue additional obligations (including refunding obligations) payable from the Pledged Revenues (or any designated part thereof) having a lien thereon prior and superior to the lien of the Bonds. (e) Refunding Obligations. The provisions of this Section are subject to the following exception: (i) Privilege of Issuing Refunding Obligations. If at any time after any of the Bonds, or any part thereof, shall have been issued and remain Outstanding, the City shall find it desirable to refund all or any part of the Outstanding Bonds, such Bonds, or any part thereof, may be refunded (but only with the consent of the Owner or Owners thereof, unless such Bonds, at the time of their required surrender for payment, shall then mature, or shall then be subject to redemption prior to maturity). (ii) Limitations Upon Issuance of Parity Refunding Obligations. No refunding obligations payable from the Pledged Revenues (or any designated part thereof) shall be issued on a parity with the Series 2005 Bonds, the Series 2005B Bonds, the Series 2009 Bonds, the Series 2012 Bonds, and the Series 2013 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 Bonds, the Series 2012 Bonds and the Series 2013 Bonds; or (B) the refunding obligations are issued in compliance with subsection (a) of this Section. P124 VII.c 21 4848-7017-6785.3 (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 2013 Reserve 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 or funds created with respect to any series of Additional Parity Bonds an amount, if any, necessary to increase the amount on deposit in each of such funds to the Reserve Fund Requirement for such fund or to repay the provider of a Reserve Fund Contract for a drawing thereon. No payment need be made into any such fund so long as the moneys therein shall equal not less than the Reserve Fund Requirement for such fund and no draw has been made on any Reserve Fund Contract deposited in such fund. The Reserve Fund Requirement for each such fund shall be accumulated and maintained in each such fund as a continuing reserve to be used, except as hereinafter provided, only to prevent deficiencies in the payment of the principal of, premium, if any, and interest on the Bonds. (c) THIRD, there shall be credited to the Parks and Open Space Fund or, subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances and the City’s Municipal Code, used in any lawful manner by the City, any amounts remaining after making the deposits required by subsections (a) and (b) of this Section. (d) Notwithstanding subsections (a) and (b) of this Section, no payment need be made pursuant to subsection (a) or (b) of this Section into either the Bond Fund, the Series 2013 Reserve 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 P125 VII.c 22 4848-7017-6785.3 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 2013 Reserve Fund. (a) Use of Moneys in Series 2013 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 2013 Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2013 Bonds; (ii) the Series 2012 Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2012 Bonds; (iii) the Series 2009 Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2009 Bonds; (iv) the Series 2005B Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2005B Bonds; (v) the Series 2005 Reserve Fund with respect to the portion of the deficiency corresponding to the amounts due on the Series 2005 Bonds; and (vi) any reserve fund or funds created with respect to any series of Additional Parity Bonds with respect to the portion of the deficiency corresponding to the amounts due on such series of Additional Parity Bonds. The money so used shall be replaced in the Series 2013 Reserve Fund, 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 payments required for any subordinate obligations. If in any period the City shall for any reason fail to pay into the Series 2013 Reserve Fund, 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 2013 Reserve Fund, 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 2013 Reserve Fund, P126 VII.c 23 4848-7017-6785.3 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 Bonds may be withdrawn therefrom and, subject to any limitation in the Charter, the Parks and Open Space Sales Tax Ordinances and the City’s Municipal Code, used in any lawful manner by the City. (c) Reserve Fund Contract. (i) The City may substitute for the cash or Permitted Investments in any Reserve Fund a surety bond issued by entity rated at least “A” by S&P (a “Reserve Fund Contract”), so long as the amount on deposit in any Reserve Fund after such substitution is at least equal to the Reserve Fund Requirement applicable to such Reserve Fund. In the event the City shall substitute a Reserve Fund Contract for the cash or Permitted Investments in any Reserve Fund, the amount on deposit in any Reserve Fund shall be that amount available to be drawn or otherwise paid pursuant to such surety bond at the time of calculation. If any Reserve Fund shall include both cash or Permitted Investments and a Reserve Fund Contract, the cash and Permitted Investments shall be used before any demand is made on any Reserve Fund Contract. Notwithstanding the foregoing, prior to such substitution, the City must receive an opinion of nationally recognized municipal bond counsel to the effect that such substitution and the intended use by the City of the cash or Permitted Investments to be released from any Reserve Fund will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds to which such Reserve Fund applies. (ii) The Series 2013 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 2013 Surety Bond (if any) shall be deposited in the Series 2013 Reserve Fund and shall be used in the manner described in paragraph (i) of this subsection (c). (d) Valuation of Deposits. Cash shall satisfy the Reserve Fund Requirement for the Series 2013 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 2013 Reserve 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 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. P127 VII.c 24 4848-7017-6785.3 (e) Calculation of Reserve Fund Requirement and Transfers Resulting from Calculation. The Reserve Fund Requirement for each of the Series 2013 Reserve 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 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 2013 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 2013, 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. (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 2013 Bonds, earnings from the investment of moneys on deposit in the Bond Fund, the Series 2013 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. P128 VII.c 25 4848-7017-6785.3 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 2013 Reserve 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 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 2013 Reserve Fund shall be deposited as received into the Revenue Fund, and interest accruing on the investment of any moneys in any other such fund or account shall be credited to the fund or account from which it is derived. The City Finance Director shall present for redemption or sale in the prevailing market any obligations so purchased as an investment of moneys in the fund or account whenever it shall be necessary to do so in order to provide moneys to meet any payment or transfer from said fund or account. (b) Deposits of Funds. The moneys and investments comprising each of such funds and accounts shall be deposited in one or more banks or savings and loans associations, each of which is a member of the Federal Deposit Insurance Corporation. Each payment shall be made into and credited to the proper fund or account on the date specified, but if such date shall be other than a Business Day, such payment shall be made on the next preceding Business Day. Nothing herein shall prevent the establishment of one or more such bank accounts, for all of such funds and accounts, or P129 VII.c 26 4848-7017-6785.3 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 2013 Bonds. The City will promptly pay or cause to be paid the principal of, premium, if any, and interest on the Series 2013 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 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 P130 VII.c 27 4848-7017-6785.3 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. (j) 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, 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 2013 Bonds from Gross Income for Federal Income Tax Purposes. For purposes of ensuring that the interest on the Series 2013 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 2013 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 P131 VII.c 28 4848-7017-6785.3 or permit to be taken any other action or actions, which would cause any Series 2013 Bond to be an “arbitrage bond” within the meaning of Section 148 of the Code, or would otherwise cause the interest on any Series 2013 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 2013 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 2013 Bonds will not be used in a manner that will cause the Series 2013 Bonds to be considered “private activity bonds” within the meaning of the Code; (ii) the Series 2013 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 2013 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 2013 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 2013 Bonds as qualified tax-exempt obligations within the meaning of Section 265(b)(3) of the Code. The City reasonably expects that the aggregate face amount, or issue price if higher, 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, will not be more than $10,000,000 during calendar year 2013. Further, the City reasonably expects that, prior to the issuance of any such tax-exempt obligations in excess of $10,000,000 during calendar year 2013, the City will obtain an opinion of Bond Counsel to the effect that such issuance will not cause the Series 2013 Bonds to no longer qualify as tax-exempt obligations within the meaning of Section 265(b)(3) of the Code. The 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 2013 Bonds will rely on the City’s designation of the Series 2013 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. P132 VII.c 29 4848-7017-6785.3 Section 23. Defeasance. Any Series 2013 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 2013 Bond, but if such Series 2013 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 2013 Bonds are to be defeased pursuant to this Section, the City, in its sole discretion, may select which of the Series 2013 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 2013 Bonds shall be paid by the Bond Insurer pursuant to the Bond Insurance Policy, the Series 2013 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% of the aggregate amount of the Bond Obligation; or (d) the City shall file a petition for bankruptcy or shall be declared insolvent by a court of competent jurisdiction. 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% of the aggregate amount of the Bond Obligation, 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 P133 VII.c 30 4848-7017-6785.3 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% of the aggregate amount of the Bond Obligation, after demand in writing, may proceed to protect and enforce the rights of the Owners as herein provided. 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 aggregate amount of the Bond Obligation 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 100% of the aggregate amount of the Bond Obligation 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 P134 VII.c 31 4848-7017-6785.3 (d) a reduction of the aggregate amount of the Bond Obligation 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 2013 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 2013 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. (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: P135 VII.c 32 4848-7017-6785.3 (a) it is in the best interest of the City and its residents that the Series 2013 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 2013 Bonds and the application of any of the provisions hereof have been taken by the City; (c) the interest rate on the Series 2013 Bonds as sold to the Underwriter, shall be a lower interest rate than the interest rate on the Refunded Bonds; therefore, the Series 2013 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 2013 Bonds will not cause the City to exceed its debt limit under the Charter or applicable State law; (e) the issuance of the Series 2013 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 2013 Bonds have been satisfied; (f) the refunding of the Refunded Bonds with proceeds of the Series 2013 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 2013 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 2013 Bonds, when combined with the Series 2005B Bonds outstanding principal amount which is not being refunded and the principal amount of the Series 2012 Bonds allocated to the refunding of a portion of the Series 2005B Bonds, will not exceed the total original authorized principal amount of the Series 2005B Bonds; 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 2013 Bonds, that the Underwriter provide to the City Council (A) an update of the information described in P136 VII.c 33 4848-7017-6785.3 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 2013 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 2013 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; (ii) the aggregate principal amount of the Series 2013 Bonds; (iii) the principal amount of the Series 2013 Bonds maturing in each year; (iv) the interest payment dates; (v) the rates of “A” interest; (vi) whether the Series 2013 Bonds shall bear interest at a supplemental interest rate designated “B” interest and, if so, the rate of the “B” interest and the payment dates for the “B” interest to be reflected in the Registered Coupons; (vii) the prices at which the Series 2013 Bonds will be sold pursuant to the Bond Purchase Agreement; (viii) the Refunded Bonds, to be identified by the principal amount thereof maturing in each year; (ix) the Series 2013 Bonds which may be redeemed at the option of the City, and the dates upon which such optional redemption may occur; P137 VII.c 34 4848-7017-6785.3 (x) 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; (xi) the identity of the Bond Insurer (if any); and (xii) the amount (if any) of net proceeds of the Series 2013 Bonds to be deposited into the Reserve Fund or applied to pay for the Series 2013 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 2013 Bonds be issued after such date, absent further authorization by the City Council; (ii) the aggregate principal amount of the Series 2013 Bonds shall not exceed $9,090,000; (iii) the final maturity of the Series 2013 Bonds shall be no later than November 1, 2025; and (iv) the principal amount of the Series 2013 Bonds, when combined with the Series 2005B Bonds outstanding principal amount which is not being refunded and the principal amount of the Series 2012 Bonds allocated to the refunding of a portion of the Series 2005B Bonds, shall not exceed the total original authorized principal amount of the Series 2005B Bonds; (v) the net effective interest rate on the Series 2013 Bonds (taking into account “A” interest and “B” interest) shall not exceed the net effective interest rate of the Refunded Bonds and the debt service on the Series 2013 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 2013 Bonds and other moneys, an Internal Revenue P138 VII.c 35 4848-7017-6785.3 Service Form 8038-G with respect to the Series 2013 Bonds, and all other documents and certificates necessary or desirable to effectuate the issuance of the Series 2013 Bonds, the investment of proceeds of the Series 2013 Bonds and the other transactions contemplated hereby. The execution by the Mayor or Mayor Pro Tem of the City or any other duly authorized officer of the City of any document authorized herein shall be conclusive proof of the approval by the City of the terms thereof. Section 33. Authorization of Bond Insurance and Series 2013 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. Regardless of whether 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 2013 Reserve Fund shall be funded with a Series 2013 Surety Bond, and if so, the identity of the Bond Insurer to issue such Series 2013 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 2013 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 2013 Reserve Policy Agreement. The execution of the Commitment by the Sale Delegate or other authorized officer of the City is hereby authorized, ratified and approved. The Sale Delegate is also authorized to set forth in the Sale Certificate such additional terms, provisions and conditions as may be required to cause the Bond Insurer to issue the Bond Insurance Policy and/or the Series 2013 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 2013 Bonds in connection with the offering of the Series 2013 Bonds and authorizes and directs the City staff to prepare a final Official Statement for use in connection with the sale of the Series 2013 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 2013 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 2013 Bonds shall be commenced more than thirty days after the authorization of the Series 2013 Bonds. P139 VII.c 36 4848-7017-6785.3 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 2013 Bonds for the purposes herein set forth are hereby ratified, approved and confirmed. Section 38. Repeal of Inconsistent Resolutions; Contract with Owners of Series 2013 Bonds; Resolution Irrepealable. All ordinances and resolutions, or parts thereof, that are in conflict with this Ordinance are hereby repealed. After the Series 2013 Bonds have been issued, this Ordinance shall be and remain a contract between the City and the Owners of the Series 2013 Bonds and shall be and remain irrepealable until all amounts due with respect to the Series 2013 Bonds shall be fully paid, satisfied and discharged and all other obligations of the City with respect to the Series 2013 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 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] P140 VII.c 37 4848-7017-6785.3 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 _________ __, 2012, as provided by the City’s Charter and applicable law. [SEAL] By Mayor Attest: By City Clerk [signature page to Bond Ordinance] P141 VII.c 4848-7017-6785.3 APPENDIX A FORM OF SERIES 2013 BOND No. R-__ $___________ UNITED STATES OF AMERICA CITY OF ASPEN, COLORADO SALES TAX REFUNDING REVENUE BOND SERIES 2013 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 Bonds, Series 2013, issued in the principal amount of $________ (the “Series 2013 Bonds”). The Series 2013 Bonds are being issued by the City for the purpose of refunding a portion of the City’s Sales Tax Revenue Bonds, Series 2005B, and the funding of a reserve fund [surety bond] for, and the costs of issuance of, the Series 2013 Bonds, pursuant to and in full P142 VII.c A-2 4848-7017-6785.3 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. [Simultaneously with the issuance of the Series 2013 Bonds, the City is also issuing separate, detailed Registered Coupons evidencing additional interest on the Series 2013 Bonds. The interest rate stated above is the interest designated as “A” on the Bonds. Owners of the Series 2013 Bonds will receive only the principal of and interest designated in the Ordinance and Sale Certificate as “A” on the Series 2013 Bonds. Owners of the Registered Coupons will receive only interest designated in the Ordinance as “B” on the Series 2013 Bonds.] [Insert Redemption Provisions from Sale Certificate] Notice of any redemption of Series 2013 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 2013 Bond being redeemed. Such notice shall specify the number or numbers of the Series 2013 Bonds so to be redeemed (if redemption shall be in part) and the redemption date. If any Series 2013 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 2013 Bond on the redemption date, then such Series 2013 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 2013 Bonds with respect to which such failure or defect did not occur. Any Series 2013 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 2013 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 2013 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 2013 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 2013 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 2013 Reserve P143 VII.c A-3 4848-7017-6785.3 Fund and the Revenue Fund (all as defined in the Ordinance). The Series 2013 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”), the City’s Parks and Open Space Sales Tax Revenue Refunding Bonds, Series 2009 (the “Series 2009 Bonds”) and the City’s Parks and Open Space Sales Tax Revenue Refunding and Improvement Bonds, Series 2012 (the “Series 2012 Bonds”). The City is further authorized by the Ordinance to pledge and grant a lien, on a parity with the lien for the payment of the principal of, premium, if any, and interest on the Series 2013 Bonds, the 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 2013 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 2013 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] P144 VII.c A-4 4848-7017-6785.3 IN WITNESS WHEREOF, the City has caused this bond to be executed with the manual or facsimile signature of its Mayor and attested by the manual or facsimile signature of the City Clerk, and has caused the seal of the City to be impressed or imprinted hereon, all as of the date set forth above. [SEAL] CITY OF ASPEN, COLORADO By Mayor Attest: By City Clerk P145 VII.c A-5 4848-7017-6785.3 CERTIFICATE OF AUTHENTICATION This is one of the Series 2013 Bonds described in the within-mentioned Ordinance. UMB BANK, N.A., as Paying Agent By Authorized Signatory Date of Authentication: P146 VII.c A-6 4848-7017-6785.3 [STATEMENT OF INSURANCE] P147 VII.c A-7 4848-7017-6785.3 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 P148 VII.c A-8 4848-7017-6785.3 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 P149 VII.c A-9 4848-7017-6785.3 APPENDIX B FORM OF REGISTERED COUPON No. R-__ $___________ UNITED STATES OF AMERICA CITY OF ASPEN, COLORADO SALES TAX REFUNDING REVENUE BOND REGISTERED “B” INTEREST COUPON “B” Interest Payment Date Amount Of “B” Interest Due On “B” Interest Payment Date CUSIP 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 payment date stated above, the amount set forth above, which amount represents a proportional interest in the total amount of supplemental interest designated “B” to be paid on the outstanding principal amount of the City of Aspen, Colorado Sales Tax Revenue Refunding Bonds, Series 2013, issued in the principal amount of $________ (the “Series 2013 Bonds”). The amount of this Registered Coupon is payable to the registered owner hereof upon presentation and surrender of this Registered Coupon at the principal office of UMB Bank, n.a., as Paying Agent (the “Paying Agent”), in Denver, Colorado, as more particularly provided in the Ordinance described below. The Series 2013 Bonds are being issued by the City for the purpose of refunding a portion of the City’s Sales Tax Revenue Bonds, Series 2005B, and the funding of a reserve fund [surety bond] for, and the costs of issuance of, the Series 2013 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, P150 VII.c A-10 4848-7017-6785.3 as amended and pursuant to an ordinance (the “Ordinance”) adopted by the City Council of the City prior to the issuance hereof. The Paying Agent shall maintain registration books in which the ownership, transfer and exchange of Registered Coupon shall be recorded. The person in whose name this Registered Coupon 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 Registered Coupon may be transferred or exchanged, at the principal office of the Paying Agent in Denver, Colorado, for a Registered Coupon of other authorized denominations ($5,000 or any integral multiple thereof) evidencing payment of “B” interest on a like payment date, 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 2013 Bonds and interest due thereon, including the “B” interest evidenced by this Registered Coupon, 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 2013 Bonds (including the “B” interest evidenced by this Registered Coupon), 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 2013 Reserve Fund and the Revenue Fund (all as defined in the Ordinance). The Series 2013 Bonds are issued, and the amount due on this Registered Coupon is secured, 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”), the City’s Parks and Open Space Sales Tax Revenue Refunding Bonds, Series 2009 (the “Series 2009 Bonds”) and the City’s Parks and Open Space Sales Tax Revenue Refunding and Improvement Bonds, Series 2012 (the “Series 2012 Bonds”). The City is further authorized by the Ordinance to pledge and grant a lien, on a parity with the lien for the payment of the principal of, premium, if any, and interest on the Series 2013 Bonds (including the “B” interested represented by the Registered Coupons), the 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 Registered Coupon 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 REGISTERED COUPON AND THE CITY. THIS REGISTERED COUPON IS ONLY EVIDENCE OF SUCH CONTRACT AND, AS SUCH, IS P151 VII.c A-11 4848-7017-6785.3 SUBJECT IN ALL RESPECTS TO THE TERMS OF THE ORDINANCE, WHICH SUPERSEDES ANY INCONSISTENT STATEMENT IN THIS REGISTERED COUPON. The City agrees with the owner of this Registered Coupons 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 Registered Coupons 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 2013 Bonds and the Registered Coupons do not exceed any limitations prescribed by the State Constitution, the Charter or the ordinances of the City. This Registered Coupon 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] P152 VII.c A-12 4848-7017-6785.3 IN WITNESS WHEREOF, the City has caused this Registered Coupon 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 P153 VII.c A-13 4848-7017-6785.3 CERTIFICATE OF AUTHENTICATION This is one of the Registered Coupons described in the within-mentioned Ordinance. UMB BANK, N.A., as Paying Agent By Authorized Signatory Date of Authentication: P154 VII.c A-14 4848-7017-6785.3 [STATEMENT OF INSURANCE] P155 VII.c A-15 4848-7017-6785.3 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 P156 VII.c A-16 4848-7017-6785.3 P157 VII.c P159 VII.d P160 VII.d P161 VII.d P162 VII.d P163 VII.d P164 VII.d P165 VII.d P166 VII.d P167 VII.d P168 VII.d P169 VII.d P170 VII.d P171 VII.d P172 VII.d P173 VII.d P174 VII.d P175 VII.d P176 VII.d P177 VII.e P178 VII.e P179 VII.e P180 VII.e P181 VII.e P183 VII.f P184 VII.f P185 VII.f P186 VII.f P187 VII.f P188 VII.f P189 VII.f P190 VII.f P191 VII.f P192 VII.f P193 VII.f P194 VII.f P195 VII.f P196 VII.f P197 VII.f P198 VII.f P199 VII.f P200 VII.f P201 VII.f P202 VII.f P203 VII.f P204 VII.f P205 VII.f P206 VII.f P207 VII.f P208 VII.f P209 VII.f P210 VII.f P211 VII.f P212 VII.f P213 VII.f P214 VII.f P215 VII.f P216 VII.f P217 VII.f P218 VII.f P219 VII.f P220 VII.f P221 VII.f P222 VII.f P223 VII.f P224 VII.f P225 VII.f P226 VII.f P227 VII.f P228 VII.f P229 VII.f P230 VII.f P231 VII.f P232 VII.f P233 VII.f P234 VII.f P235 VII.f P236 VII.f P237 VII.f P238 VII.f P239 VII.f P240 VII.f P241 VII.g P242 VII.g P243 VII.g P244 VII.g P245 VII.g P246 VII.g P247 VII.g P248 VII.g P249 VII.g P250 VII.g P251 VII.g P252 VII.g P253 VII.g P254 VII.g P255 VII.g P256 VII.g P257 VII.g P258 VII.g P259 VII.g P260 VII.g P261 VII.g P262 VII.g P263 VII.g P264 VII.g P265 VII.g P266 VII.g P267 VII.g P268 VII.g P269 VII.g P270 VII.g P271 VII.g P272 VII.g P273 VII.g P275 VII.g P276 VII.g P277 VII.g P278 VII.g P279 VII.g P280 VII.g P281 VII.g P282 VII.g P283 VII.g P284 VII.g P285 VII.g P286 VII.g P287 VII.g P288 VII.g P289 VII.g P290 VII.g P291 VII.g P292 VII.g P293 VII.g P294 VII.g P295 VII.g P296 VII.g P297 VII.g P298 VII.g P299 VII.g P300 VII.g P301 VII.g P302 VII.g P303 VII.g Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Jessica Garrow, Long Range Planner THRU: Chris Bendon, Community Development Director DATE OF MEMO: 10/29/2012 MEETING DATE: 11/12/2012 RE: Policy Direction for Code Amendment on Master Plans REQUEST OF COUNCIL: PREVIOUS COUNCIL ACTION: BACKGROUND: DISCUSSION: FINANCIAL/BUDGET IMPACTS: Click here to enter text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FINANCE REVIEW: Click here to enter text. ENVIRONMENTAL IMPACTS: Click here to enter text. RECOMMENDED ACTION: P305 VIII.a Page 2 of 2 ALTERNATIVES: PROPOSED MOTION: CITY MANAGER COMMENTS: ATTACHMENTS: Notes: • Please use page numbers on all memos and attachments, especially for work sessions • The memo should be as long as it needs to be – but remember, you’re not writing a novel. Use attachments for more detailed information, ordinances and resolutions, etc. • Attachments: All attachments to the memo should be referenced somewhere in the body of the memo. All attachments should be titled as “Attachment”, “Exhibit” or “Schedule” with a letter following: Attachments: A - Exhibit One - Map ... B - Property Description C - Chart of Costs D - Resolution #97-1 P306 VIII.a 11.12.2012 – Master Plans Policy Direction Page 1 of 3 MEMORANDUM TO: Mayor and City Council FROM: Jessica Garrow, Long Range Planner THRU: Chris Bendon, Community Development Director RE: Policy Resolution: Master Plan Process Resolution 104, Series of 2012 MEETING DATE: November 12, 2012 SUMMARY: The attached Resolution outlines Council policy direction for code amendments related to the Master Plan process. The objective of the proposed code amendments is to update and streamline the process for initiating, developing, and adopting all Master Plans. Once the Policy Resolution is approved, staff will bring an Ordinance to City Council that amends the Master Plan process. The memo and resolution summarize the policy direction received to date. STAFF RECOMMENDATION: Staff recommends approval of the proposed resolution. LAND USE REQUESTS AND REVIEW PROCEDURES: This meeting is to review potential changes to the Master Plan process. Pursuant to Land Use Code Section 26.310, City Council is the final review authority for all code amendments. All code amendments are subject to a three-step process. This is the second step in the process: 1. Public Outreach 2. Policy Resolution by City Council indicating if an amendment should the pursued 3. Public Hearings on Ordinance outlining specific code amendments. BACKGROUND & OVERVIEW: The Land Use Code does not outline a specific process for the initiation, development, or adoption of any Plan. The code identifies the Aspen Area Community Plan, but no specific process for developing or adopting the AACP is outlined. In addition, the code does not address how other plans, such as the Civic Master Plan, or a neighborhood plan, should be created. As part of the implementation of the Aspen Area Community Plan (AACP), City Council expressed a desire to explore modifications to the review and adoption process for the AACP. Council members have asked staff to consider the length of the process, the role of the community, P&Z, Council, and staff in any update, as well as the frequency of updates. P307 VIII.a 11.12.2012 – Master Plans Policy Direction Page 2 of 3 Though the City has made significant efforts to engage the community on planning in general and the AACP in particular, the code does not require public outreach on long range planning efforts. Participation by the community is essentially limited to the traditional public hearings. PROPOSED PROCESS: In an effort to clarify the process and enable future long range plans to be reviewed and adopted expeditiously, staff proposes the following change to the review process for all long range and master plans: 1. City Council initiation of a plan. 2. Compile existing conditions/background information as necessary. (staff) 3. Conduct a public outreach process. (staff) 4. Write a draft plan based on steps 2 & 3. (staff) 5. Hold a comment period for the community and boards. During this time, P&Z and HPC would be asked to provide formal comments on the plan. (The length of the comment period would be determined by City Council) 6. Public review of the plan through public outreach and/or hearings. 7. Repeat any steps, as determined necessary by City Council. 8. Formal review and adoption of plan by City Council. This proposal is very similar to how the federal government conducts their public process. Staff believes this review process would effectively utilize staff resources, and would likely engage the community more effectively than the current procedures. Based on past Council comments and the adoption of the AACP, staff is recommending that Master Plans be guiding in nature. PLANNING AND ZONING COMMISSION COMMENTS: Staff met with the Planning and Zoning Commission to review the Master Plan process and to get feedback on the initial direction. The P&Z expressed interest in improving the process, while maintaining the role that the P&Z has held in developing and reviewing plans. The P&Z stated that City Council should be in the role of initiating plans, and that the P&Z should be involved in the public engagement and drafting of a plan. They agreed that a planning process should consist of many citizen boards “championing” the topic or area they have expertise in to ensure a more timely review of a plan. As an example, they expressed frustration in being asked to review the Lifelong Aspenite chapter of the AACP because they are not experts in the health and human services field. They felt that the groups who are experts in that arena should have been tasked with developing and reviewing the chapter. P&Z also supported having timelines associated with reviewing a plan, but cautioned that any time frame should be realistic and flexible. The P&Z was split regarding if Master Plans, including the AACP, should be guiding or regulatory in nature. A majority of P&Z stated that the point of a plan is to serve as a guide for P308 VIII.a 11.12.2012 – Master Plans Policy Direction Page 3 of 3 the future and as such should guiding in nature. One member expressed concern that if a plan was not regulatory that it would not be implemented. STAFF RECOMMENDATION: Staff recommends adoption of the attached Policy Resolution. RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to approve Resolution No. 104, Series of 2012, approving a Policy Resolution outlining direction for code amendments to the Master Plan process.” CITY MANAGER COMMENTS:_____________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ATTACHMENTS: Exhibit A – Staff Findings P309 VIII.a Resolution No __, Series 2012 Page 1 of 2 RESOLUTION N0. 104, (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REQUESTING CODE AMENDMENTS TO THE MASTER PLAN PROCESS. WHEREAS, pursuant to Section 26.310.020(A), the Community Development Department received direction from City Council to explore code amendments related to the Master Plan process; and, WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development Department conducted Public Outreach from the Planning and Zoning Commission to gain feedback on potential code changes to the Master Plan process; and, WHEREAS, the Community Development Director recommended changes to the process for initiating, developing, and adopting Master Plans; and, WHEREAS, City Council has reviewed the proposed code amendment policy direction, and finds it meets the criteria outlined in Section 26.310.040; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on November 12, 2012, the City Council approved Resolution No. __, Series of 2012, by a ____ to ____ (__ – __) vote, requesting code amendments to the Master Plan process; and, WHEREAS, this Resolution does not amend the Land Use Code, but provides direction to staff for amending the Land Use Code; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Code Amendment Objective The objective of the proposed code amendments is to streamline and clarify the process for initiating, developing, and adopting all Master Plans in the City of Aspen. Section 2: Process City Council provides the following direction regarding the process for Master Plans: 1. City Council initiates a master plan 2. Staff to conduct background/existing conditions research, 3. Staff to conduct public outreach 4. Staff to draft plan based on steps 2 and 3 and present to City Council. P311 VIII.a Resolution No __, Series 2012 Page 2 of 2 5. City Council to establish a comment period for city boards, citizens, community organizations, etc, 6. Public review of the plan through meetings/outreach or hearings. 7. City Council adoption of the plan In addition, City Council provides direction that Master Plans should be guiding in nature. Section 3: This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the resolutions or ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 4: If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted this __th day of ____ 2012. _______________________________ Michael C. Ireland, Mayor ATTEST: APPROVED AS TO FORM: _______________________________ ______________________________ Kathryn S. Koch, City Clerk James R True, City Attorney P312 VIII.a 11.12.2012 Master Plan Process Policy Direction; Exhibit A Page 1 of 1 Exhibit A: Staff Findings 26.310.040. Amendments to the Land Use Code standards of review – Initiation In reviewing a request to pursue an amendment to the text of this Title, per Section 26.310.020(B)(2), Step Two – Public Hearing before City Council, the City Council shall consider: A. Whether there exists a community interest to pursue the amendment. Staff Findings: Staff believes there is a community interest in updating the code to create a specific process for Master Plans. Codifying a process will create some reliance for the community on how a process will work and how long that process will take. Staff finds this criterion to be met. B. Whether the objectives of the proposed amendment furthers an adopted policy, community goal, or objective of the City including, but not limited to, those stated in the Aspen Area Community Plan. Staff Findings: As part of the implementation of the Aspen Area Community Plan (AACP), City Council has directed Community Development staff to update the process for initiating, developing, and adopting Master Plans. This direction has been based on the “lessons learned” from the recent adoption of the AACP. Staff finds this criterion to be met. C. Whether the objectives of the proposed amendment are compatible with the community character of the City and in harmony with the public interest and the purpose and intent of this Title. Staff Findings: The intent of the proposed amendments are to ensure a predictable long range planning process. Staff finds this criterion to be met. P313 VIII.a LAW OFFICES OF PAUL J. TADDUNE, P.C. PAUL J.TADDUNE AFFILIATED OFFICE 323 WEST MAIN STREET,SUITE 301 FOWLER,SCHIMBERG&FLANAGAN,P.C. ASPEN,COLORADO 81611 1640 GRANT STREET,SUITE 300 TELEPHONE (970)925-9190 DENVER,COLORADO 80203 TELEFAX (970)925-9199 TELEPHONE (303)298-8603 INTERNET:taddunegcompuserve.com TELEFAX (303)298-8748 November 12, 2012 Mayor Mick Ireland City of Aspen 130 South Galena Street Aspen, CO 81611 Members of the City Council City of Aspen 130 South Galena Street Aspen, CO 81611 Re: Proposed South Aspen Street Lodge Conceptual PUD Dear Mayor Ireland and Members of the City Council: As the general counsel for the Lift One Condominiums,I have been asked to monitor the proposed South Aspen Street Lodge Project, in particular the height and massing impact of the proposed hotel. While the interest on the part of the Council in encouraging additional lodge rooms is understandable,additional rooms should not come at the expense and deterioration of existing lodge accommodations that already provide a significant number of pillows in this neighborhood. My information is that the hearing scheduled for Monday,November 12,2012 will be continued to Monday,November 26,2012. Lift One Condominiums request that the Applicant be directed to provide the following information in a timely fashion prior to the continued meeting so that the Lift One Condominiums can assess the impact and participate in a meaningful fashion at the continued hearing: On the survey,provide an accurate foot print of the Lift One Condominiums building similar to the foot print information provided for the Juan Street housing project and the distance of the building to the lot line. Provide exterior elevations for the north side of the proposed hotel. Mayor Mick Ireland Members of the Aspen City Council November 12, 2012 Page 2 - Trees used for screening the mass of the proposed buildings should be shown with actual proposed species and the size and location at the time of installation. This will give a more accurate representation of the building mass impact which is one of the principal items under review at this time. The only north elevation hotel use submitted thus far uses very mature vegetation which looks nice but is misleading. - If drawings will be presented that are different than previously submitted materials,hard or electronic copies should be made available. - The Applicant should provide a north elevation comparison of the proposed hotel to the approved town home project. - The Application uses the term"interpolated natural grade"in several drawings. Is this method acceptable by the Land Use Code and how does this differ from measuring straight up from existing grade? - Although the Applicant's representatives have been gracious and open in discussing the Application with me, it is more important that meetings be set up with those directly impacted, such as the Board of the Lift One Condominiums project so that appropriate input can be provided. Thank you in advance for your attention to this request. Very truly yours, PAUL J. TADDUNE, P.C. Paul J. Taddune PJT:nwe cc:Chris Bendon,Aspen Community Development Dcpartincnt Director Larry Magcs AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: , Aspen, CO SCHEDULED PUBLIC HEARING DATE: 6M,�� o y 12 , 0 " , 20 I?- STATE OF COLORADO ) ss. County of Pitkin ) 1, —t (name, please print) being or represent'ng an Applicant to the City o Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen(15) days prior to the public hearing and was continuously visible from the_day of , 20_, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Fitkin County as tl-ley appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the om,ners and,,,overnmental agencies so noticed is attached hereto. (Continued on next page) Rezoning or text amendment: Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. Signature The foregoing "Affidavit of Notice" was acknowledged before me this ZG day of 20 /Z by r PU IC NOTE E RE: AMENDM T TO THE CITY OF ASPEN LAND USE CODE NOTICE IS HEI'at n ndd GIVEN that a public hearing WITNESS MY HAND AND OFFICIAL SEAL will be held on ay,November 12,2012,at a meeting to be 5f00 p.m.before the Aspen City Council C cil Chambers,City Hall,130 S. Galena St.,Aspen,to determine if an amendment to the text of the Land Use Code should be pur- sued. The potential amendment would address the '�. My CQII1m1$slon expires: Icy] I process for creating and adopting master plans.For further information,contact Jessica Garrow ai the City of Aspen Community Development De- . partment,130 S.Galena St.,Aspen,CO,(970) _ 429-2780,jessica.garrow&i.aspen.co.us s/Michaellreland Mavor Notary Public Aspen City Council Published in The Aspen Times Weekly on October 25,2012 [8519664] ATTACHMENTS AS APPLICABLE: • COPY OF THE PUBLICATION • PHOTOGRAPH OF THE POSTED NOTICE (SIGN) • LIST OF THE OWNERS AND GOVERNMENT AGENGIES NOTIED BY MAIL • APPLICANT CERTICICATION OF MINERAL ESTATE OWNERS NOTICE AS REQUIRED BY C.R.S. §24-65.5-103.3 Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Chris Bendon, Community Development Director THRU: Click here to enter text. DATE OF MEMO: 10/29/2012 MEETING DATE: 11/12/2012 RE: Policy Direction for Code Amendment on ADUs REQUEST OF COUNCIL: PREVIOUS COUNCIL ACTION: BACKGROUND: DISCUSSION: FINANCIAL/BUDGET IMPACTS: Click here to enter text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FINANCE REVIEW: Click here to enter text. ENVIRONMENTAL IMPACTS: Click here to enter text. RECOMMENDED ACTION: P315 VIII.b Page 2 of 2 ALTERNATIVES: PROPOSED MOTION: CITY MANAGER COMMENTS: ATTACHMENTS: Notes: • Please use page numbers on all memos and attachments, especially for work sessions • The memo should be as long as it needs to be – but remember, you’re not writing a novel. Use attachments for more detailed information, ordinances and resolutions, etc. • Attachments: All attachments to the memo should be referenced somewhere in the body of the memo. All attachments should be titled as “Attachment”, “Exhibit” or “Schedule” with a letter following: Attachments: A - Exhibit One - Map ... B - Property Description C - Chart of Costs D - Resolution #97-1 P316 VIII.b MEMORANDUM TO: Mayor and City Council FROM: Chris Bendon, Community Development Director RE: Policy Resolution: Accessory Dwelling Units Resolution 105, Series of 2012 DATE: November 12, 2012 SUMMARY: The attached Resolution outlines Council policy direction for amending the Accessory Dwelling Unit Program. The objective is to reduce mitigation options to those that provide actual housing commensurate with the impact being mitigated. Because ADUs do not require occupancy, the impact of new development is not being mitigated by the production of ADUs. Restricting mitigation options to those more directly tied to actual housing will offset the actual impacts of residential redevelopment. Once the Policy Resolution is approved, staff will bring an Ordinance to City Council that amends the credits program. STAFF RECOMMENDATION: Staff recommends approval of the proposed resolution. LAND USE REQUESTS AND REVIEW PROCEDURES: This meeting is to review potential changes to the Affordable Housing Certificates program. Pursuant to Land Use Code Section 26.310, City Council is the final review authority for all code amendments. All code amendments are subject to a three-step process. This is the second step in the process: 1. Public Outreach 2. Policy Resolution by City Council indicating if an amendment should the pursued 3. Public Hearings on Ordinance outlining specific code amendments. SUMMARY: The City requires the redevelopment (“scrape-and-replace”) of single-family and duplex properties to provide housing mitigation. Because these projects are replacement of existing development, the mitigation requirements are lower than for new development. Options for these projects include providing an off-site unit, payment of a cash-in-lieu, providing an AH Certificate, or building an ADU on the property. An ADU is an accessory dwelling unit that must be separate from the main house and may only be rented to a local worker. An ADU does not provide any other benefit to a property and “counts” in floor area. The ADU and cash-in-lieu options are highly preferred over other options. P317 VIII.b There are approximately 150 to 200 ADUs, most of which were built as a result of this mitigation requirement. Occupancy of these units is estimated to vary between 20 and 30 percent, much lower than desired by many. However, because the mitigation requirements are based on the net expansion, the actual occupancy in ADUs may still exceed that which would have been achieved through the cash or certificate options. ComDev staff is requesting direction to proceed with eliminating the ADU mitigation option. Remaining options would be cash-in-lieu or the certificate program. This change would provide a boost to the certificate program, which has yet to see a certificate used for mitigation. ADUs could still be built, but would not longer provide a property with a mitigation credit. The Planning and Zoning Commission is supportive of removing the ADU option. Some members would prefer the option remain, but only if mandatory occupancy could be required. The Housing Board is also supportive of eliminating the ADU option. If the ADU option is eliminated, staff also requests direction to provide a mechanism to remove existing ADUs (plus removing the deed restriction) with a reduced mitigation. Currently, the program does not have a reversion mechanism – an owner can easily create an ADU, but the code is silent on how to remove an ADU. The existing ADU inventory does have a considerable (maybe not optimal) role in the overall housing inventory. While occupancy is low, simply eliminating existing ADUs will have a detrimental effect on the housing stock. Staff suggests an administrative process with a cash-in-lieu or certificate option at a rate 25% of that required for scrape-and-replace projects. This would account for the approximate actual impact on the community. Removing an ADU from a property would continue to be at the option of the property owner. RECOMMENDATION: Staff recommends the Council proceed with this code amendment. The ADU option has long been criticized as not offsetting actual housing impacts of redevelopment. With advent of the Housing Certificate program, the City has an opportunity to ensure redevelopment of single-family and duplex properties mitigates its impact on the community. CITY MANAGER COMMENTS: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ _______________________ PROPOSED MOTION: “I move the adoption of Resolution No. 105, Series 2012, directing staff to prepare an ordinance to eliminate the ADU mitigation option.” ATTACHMENTS: A – Staff Findings P318 VIII.b Resolution No __, Series 2012 Page 1 of 2 RESOLUTION N0. ___, (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REQUESTING LAND USE CODE AMENDMENTS TO THE ACCESSORY DWELLING UNIT PROGRAM AND TO GROWTH MANAGEMENT REQUIREMENTS REGARDING SINGLE-FAMILYAND DUPLEX DEVELOPMENT. WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development Department conducted Public Outreach to gain feedback from the community on potential code changes to the Accessory Dwelling Unit Program and growth management requirements for residential redevelopment projects; WHEREAS, the Public Outreach included a outreach to the Planning and Zoning Commission and the Aspen/Pitkin County Housing Authority Board of Directors; and, WHEREAS, the Community Development Director recommends changes to the ADU program and to eliminate ADUs as an option for mitigating the impacts of residential redevelopment; and, WHEREAS, City Council has reviewed the proposed code amendment policy direction, and finds it meets the criteria outlined in Section 26.310.040; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on November 12, 2012, the City Council considered the recommendation of the Community Development Director, comments offered by the public, and approved this resolution by a ___ to ___ (__-__) vote; and, WHEREAS, this Resolution does not amend the Land Use Code, but provides direction to staff for amending the Land Use Code; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Code Amendment Objective The objective of the proposed amendment to Accessory Dwelling Unit program is to reduce mitigation options to those that provide actual housing commensurate with the impact being mitigated. Because ADUs do not require occupancy, the impact of new development is not being mitigated by the production of ADUs. Restricting mitigation options to those more directly tied to actual housing will offset the actual impacts of residential redevelopment. Section 2: P319 VIII.b Resolution No __, Series 2012 Page 2 of 2 This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the resolutions or ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 3: If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted this ________ day of __________ 2012. _______________________________ Michael C. Ireland, Mayor ATTEST: APPROVED AS TO FORM: _______________________________ ______________________________ Kathryn S. Koch, City Clerk James R True, City Attorney P320 VIII.b 11.12.2012 ADU Policy Direction; Exhibit A Page 1 of 1 Exhibit A: Staff Findings 26.310.040. Amendments to the Land Use Code standards of review – Initiation In reviewing a request to pursue an amendment to the text of this Title, per Section 26.310.020(B)(2), Step Two – Public Hearing before City Council, the City Council shall consider: A. Whether there exists a community interest to pursue the amendment. Staff Findings: Staff believes there is a community interest in updating the code to address ADUs. The low occupancy of ADUs was discussed in the AACP process at length. The Housing Board supports this code amendment. Shifting the mitigation options to mechanisms that provide actual housing opportunities is in the interests of the community. Staff finds this criterion met. B. Whether the objectives of the proposed amendment furthers an adopted policy, community goal, or objective of the City including, but not limited to, those stated in the Aspen Area Community Plan. Staff Findings: The Aspen Area Community Plan (AACP), Housing Section stated a policy to “Eliminate the Accessory Dwelling Unit (ADU) program, unless mandatory occupancy is required.” The Plan is advisory only, but does reinforce the sentiment that ADUs have a low occupancy and should no longer be considered a mitigation option. Staff finds this criterion to be met. C. Whether the objectives of the proposed amendment are compatible with the community character of the City and in harmony with the public interest and the purpose and intent of this Title. Staff Findings: The objective is to reduce mitigation options to those that provide actual housing commensurate with the impact being mitigated. Because ADUs do not require occupancy, the impact of new development is not being mitigated through the production of an ADU. Staff believes this is compatible with the community character of the City and in harmony with the public interest and the purpose and intent of this Title. Staff finds this criterion met. P321 VIII.b Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Chris Bendon, Community Development Director THRU: Click here to enter text. DATE OF MEMO: 10/29/2012 MEETING DATE: 11/12/2012 RE: Policy Direction for Code Amendment on Housing Certificates REQUEST OF COUNCIL: PREVIOUS COUNCIL ACTION: BACKGROUND: DISCUSSION: FINANCIAL/BUDGET IMPACTS: Click here to enter text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FINANCE REVIEW: Click here to enter text. ENVIRONMENTAL IMPACTS: Click here to enter text. RECOMMENDED ACTION: P323 VIII.c Page 2 of 2 ALTERNATIVES: PROPOSED MOTION: CITY MANAGER COMMENTS: ATTACHMENTS: Notes: • Please use page numbers on all memos and attachments, especially for work sessions • The memo should be as long as it needs to be – but remember, you’re not writing a novel. Use attachments for more detailed information, ordinances and resolutions, etc. • Attachments: All attachments to the memo should be referenced somewhere in the body of the memo. All attachments should be titled as “Attachment”, “Exhibit” or “Schedule” with a letter following: Attachments: A - Exhibit One - Map ... B - Property Description C - Chart of Costs D - Resolution #97-1 P324 VIII.c AH Certs. Policy Direction Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Chris Bendon, Community Development Director RE: Policy Resolution: Affordable Housing Certificates Resolution 106, Series of 2012 DATE: November 12, 2012 SUMMARY: The attached Resolution outlines Council policy direction for amending the Affordable Housing Certificates Program. The objective is to provide a mechanism for certificates to be exchanged between Categories – an issue that was never contemplated when the program was initiated. Various non-substantive clean-up are also needed to provide clarity to terms and processes within the program. Once the Policy Resolution is approved, staff will bring an Ordinance to City Council that amends the credits program. STAFF RECOMMENDATION: Staff recommends approval of the proposed resolution. LAND USE REQUESTS AND REVIEW PROCEDURES: This meeting is to review potential changes to the Affordable Housing Certificates program. Pursuant to Land Use Code Section 26.310, City Council is the final review authority for all code amendments. All code amendments are subject to a three-step process. This is the second step in the process: 1. Public Outreach 2. Policy Resolution by City Council indicating if an amendment should the pursued 3. Public Hearings on Ordinance outlining specific code amendments. BACKGROUND: The Certificates of Affordable Housing Program is nearly three years old. The first project is complete and occupied and the first Credit Certificates were issued in February this year. A second project is under construction and is expected to be occupied in roughly a year. The program allows a developer of affordable housing to sell his “credit” to another developer to use to P325 VIII.c AH Certs. Policy Direction Page 2 of 2 satisfy housing mitigation requirements. When a Certificate project is built, the units are of specific APCHA Categories and the Credits are issued according to those Categories. The program needs an update. The original code adopted for this program didn’t anticipate the need for Certificate holders to exchange Certificates between different Category designations. This presents a problem between buyer and sellers of Certificates – “I’d like to buy some Category 2 Certificates, but you’re only selling Category 3 Certificates.” Staff has developed a concept of how to exchange between Categories by using the APCHA cash-in-lieu figures. The APCHA cash-in-lieu rates reflect actual subsidy costs to house employees of various Categories. It is more expensive to mitigate for lower Category employees as the subsidy required to house lower Category employees is greater. The same condition exists in the Certificates program – it is more expensive for a developer to create lower category units. And, Certificates of lower Category designation should be worth more. By using these APCHA rates, Certificate holder could exchange their Category designations in an equivalent manner. Using the current rate structure (which will be updated soon), a 4.0 FTE Category 2 Certificate would equate to a 3.75 FTE Certificate at Category 3. The APCHA rates will change from time to time and the code would always refer to the APCHA rates in effect at the time of exchange. OUTREACH: Staff has reviewed this concept with Peter Fornell, the developer of the first two projects and Certificate owner. He is supportive of the direction staff is pursuing. Staff also reviewed the initiative with the APCHA Board and Staff during their November 7th meeting. The APCHA meeting occurred after this staff memo was submitted. Staff will update the Council on APCHA’s input at the hearing. STAFF RECOMMENDATION: Staff recommends proceeding with this code amendment through adoption of the attached Resolution. RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to approve Resolution No. 106, Series of 2012, directing amendments to the Affordable Housing Certificates program.” CITY MANAGER COMMENTS:_____________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ATTACHMENTS: Exhibit A – Staff Findings P326 VIII.c Resolution No __, Series 2012 Page 1 of 2 RESOLUTION N0. 106 (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REQUESTING LAND USE CODE AMENDMENTS TO THE CERTIFICATES OF AFFORDABLE HOUSING PROGRAM. WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development Department conducted Public Outreach to gain feedback from the community on potential code changes to the Certificates of Affordable Housing program; and, WHEREAS, the Public Outreach included a outreach to the Planning and Zoning Commission, the Aspen/Pitkin County Housing Authority Board of Directors, the primary owner of existing Certificates of Affordable Housing, and representatives of potential Certificate applications; and, WHEREAS, the Community Development Director recommends changes to the Certificates Program to permit the exchange of credits between affordable category designations; and, WHEREAS, City Council has reviewed the proposed code amendment policy direction, and finds it meets the criteria outlined in Section 26.310.040; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on November 12, 2012, the City Council considered the recommendation of the Community Development Director, comments offered by the public, and approved this resolution by a ___ to ___ (__-__) vote; and, WHEREAS, this Resolution does not amend the Land Use Code, but provides direction to staff for amending the Land Use Code; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Code Amendment Objective The objective is to provide a mechanism for certificates to be exchanged between affordable housing category designation. Various non-substantive clean-up are also needed to provide clarity to terms and processes within the program. Section 2: This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the resolutions or ordinances P327 VIII.c Resolution No __, Series 2012 Page 2 of 2 repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 3: If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted this ________ day of __________ 2012. _______________________________ Michael C. Ireland, Mayor ATTEST: APPROVED AS TO FORM: _______________________________ ______________________________ Kathryn S. Koch, City Clerk James R True, City Attorney P328 VIII.c 11.12.2012 AH Certs Policy Direction; Exhibit A Page 1 of 1 Exhibit A: Staff Findings 26.310.040. Amendments to the Land Use Code standards of review – Initiation In reviewing a request to pursue an amendment to the text of this Title, per Section 26.310.020(B)(2), Step Two – Public Hearing before City Council, the City Council shall consider: A. Whether there exists a community interest to pursue the amendment. Staff Findings: Staff believes there is a community interest in updating the Certificates of Affordable Housing Program. The original program never contemplated the need to exchange certificates of a specific category for those of a different category. The primary owner of housing certificates is in support of this amendment. The Housing Board supports this code amendment. Staff believes enabling this program to function better is in the interests of the community and finds this criterion met. B. Whether the objectives of the proposed amendment furthers an adopted policy, community goal, or objective of the City including, but not limited to, those stated in the Aspen Area Community Plan. Staff Findings: The existing code has a program for creating, exchanging and extinguishing Housing Credits. The program is nearly three years old and text within the program needs to be clarified, expanded upon to reflect the working logistics of the program. Staff believes these to be non- substantive changes. The program never contemplated the need for a certificate owner and a buyer to amend the certificate category. The primary certificate owner approached the city about this scenario. Staff is suggesting that a successful program needs this component. Staff finds this criterion to be met. C. Whether the objectives of the proposed amendment are compatible with the community character of the City and in harmony with the public interest and the purpose and intent of this Title. Staff Findings: The objective is to provide a mechanism for certificates to be exchanged between Categories – an issue that was never contemplated when the program was initiated. Various non-substantive clean- up are also needed to provide clarity to terms and processes within the program. Staff believes this is compatible with the community character of the City and in harmony with the public interest and the purpose and intent of this Title. Staff finds this criterion met. P329 VIII.c Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Chris Bendon, Community Development Director THRU: Click here to enter text. DATE OF MEMO: 10/29/2012 MEETING DATE: 11/12/2012 RE: South Aspen Lodge Conceptual PUD REQUEST OF COUNCIL: PREVIOUS COUNCIL ACTION: BACKGROUND: DISCUSSION: FINANCIAL/BUDGET IMPACTS: Click here to enter text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FINANCE REVIEW: Click here to enter text. ENVIRONMENTAL IMPACTS: Click here to enter text. RECOMMENDED ACTION: P331 VIII.d Page 2 of 2 ALTERNATIVES: PROPOSED MOTION: CITY MANAGER COMMENTS: ATTACHMENTS: Notes: • Please use page numbers on all memos and attachments, especially for work sessions • The memo should be as long as it needs to be – but remember, you’re not writing a novel. Use attachments for more detailed information, ordinances and resolutions, etc. • Attachments: All attachments to the memo should be referenced somewhere in the body of the memo. All attachments should be titled as “Attachment”, “Exhibit” or “Schedule” with a letter following: Attachments: A - Exhibit One - Map ... B - Property Description C - Chart of Costs D - Resolution #97-1 P332 VIII.d Page 1 of 1 MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Chris Bendon, Community Development Director RE: South Aspen Street Lodge Conceptual PUD Review – Public Hearing Resolution No. ___, Series 2012 DATE: November 12, 2012 SUMMARY: Staff requests continuation of this hearing to the November 26th meeting. The applicant is continuing to pursue design and program options for further review and additional time is necessary for this work. P333 VIII.d LAW OFFICES OF PAUL J. TADDUNE, P.C. PAUL J.TADDUNE AFFILIATED OFFICE 323 WEST MAIN STREET,SUITE 301 FOWLER,SCHIMBERG&FLANAGAN,P.C. ASPEN,COLORADO 81611 1640 GRANT STREET,SUITE 300 TELEPHONE (970)925-9190 DENVER,COLORADO 80203 TELEFAX (970)925-9199 TELEPHONE (303)298-8603 INTERNET;taddune @compuserve.com TELEFAX (303)298-8748 November 12, 2012 Mayor Mick Ireland City of Aspen 130 South Galena Street Aspen, CO 81611 Members of the City Council City of Aspen 130 South Galena Street Aspen, CO 81611 Re: Proposed South Aspen Street Lodge Conceptual PUD Dear Mayor Ireland and Members of the City Council: As the general counsel for the Lift One Condominiums,I have been asked to monitor the proposed South Aspen Street Lodge Project, in particular the height and massing impact of the proposed hotel. While the interest on the part of the Council in encouraging additional lodge rooms is understandable,additional rooms should not come at the expense and deterioration of existing lodge accommodations that already provide a significant number of pillows in this neighborhood. My information is that the hearing scheduled for Monday,November 12, 2012 will be continued to Monday,November 26,2012. Lift One Condominiums request that the Applicant be directed to provide the following information in a timely fashion prior to the continued meeting so that the Lift One Condominiums can assess the impact and participate in a meaningful fashion at the continued hearing: On the survey,provide an accurate foot print of the Lift One Condominiums building similar to the foot print information provided for the Juan Street housing project and the distance of the building to the lot line. Provide exterior elevations for the north side of the proposed hotel. Mayor Mick Ireland Members of the Aspen City Council November 12, 2012 Page 2 - Trees used for screening the mass of the proposed buildings should be shown with actual proposed species and the size and location at the time of installation. This will give a more accurate representation of the building mass impact which is one of the principal items under review at this time. The only north elevation hotel use submitted thus far uses very mature vegetation which looks nice but is misleading. - If drawings will be presented that are different than previously submitted materials,hard or electronic copies should be made available. - The Applicant should provide a north elevation comparison of the proposed hotel to the approved town home project. - The Application uses the term"interpolated natural grade"in several drawings. Is this method acceptable by the Land Use Code and how does this differ from measuring straight up from existing grade? - Although the Applicant's representatives have been gracious and open in discussing the Application with me, it is more important that meetings be set up with those directly impacted, such as the Board of the Lift One Condominiums project so that appropriate input can be provided. Thank you in advance for your attention to this request. Very truly yours, PAUL J. TADDUNE, P.C. Paul J. Taddune PJT:nwe cc:Chris Bendon,Aspen Community Development Department Director Larry Magcs Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Sara Adams, Senior Planner THRU: Chris Bendon, Community Development Director DATE OF MEMO: 10/30/2012 MEETING DATE: 11/12/2012 RE: Notice of Call-up for 422 E. Cooper Avenue REQUEST OF COUNCIL: PREVIOUS COUNCIL ACTION: BACKGROUND: DISCUSSION: FINANCIAL/BUDGET IMPACTS: Click here to enter text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FINANCE REVIEW: Click here to enter text. ENVIRONMENTAL IMPACTS: Click here to enter text. RECOMMENDED ACTION: P335 IX.a Page 2 of 2 ALTERNATIVES: PROPOSED MOTION: CITY MANAGER COMMENTS: ATTACHMENTS: Staff Memo Exhibit A: Approved Plans Exhibit B: HPC Resolution 26, Series 2012 Exhibit C: HPC minutes September 12, 2012 Exhibit D: HPC DRAFT minutes October 24, 2012 Notes: • Please use page numbers on all memos and attachments, especially for work sessions • The memo should be as long as it needs to be – but remember, you’re not writing a novel. Use attachments for more detailed information, ordinances and resolutions, etc. • Attachments: All attachments to the memo should be referenced somewhere in the body of the memo. All attachments should be titled as “Attachment”, “Exhibit” or “Schedule” with a letter following: Attachments: A - Exhibit One - Map ... B - Property Description C - Chart of Costs D - Resolution #97-1 P336 IX.a Page 1 of 2 422 E. Cooper Street Staff Memo for Notice of Call Up MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Sara Adams, Senior Planner THRU: Chris Bendon, Community Development Director RE: Notice of HPC approval of Conceptual Commercial Design, Conceptual Major Development and Demolition: 422 E. Cooper Avenue, HPC Resolution #26, Series of 2012 MEETING DATE: October 24, 2012 BACKGROUND: On October 24, 2012, the Historic Preservation Commission (HPC) approved Conceptual Commercial Design Review and Conceptual Major Development Review for a project at 422 E. Cooper Ave. (aka the poster shop adjacent to the Red Onion). Conceptual Commercial Design Review and Conceptual Major Development address the mass, scale and placement of a proposed building, compatibility of the building within the Commercial Core Historic District and provides the applicant with direction for moving forward with their proposal. The demolition request is to remove the one story addition to the Onion with the exception of the front façade. ACTION TAKEN BY HPC: HPC granted approval to demolish the back portion of the one story commercial space adjacent to the 1892 Red Onion building and construct a three story building. A viewplane exemption was granted due to other development (the Roaring Fork Building and Paragon Building) already blocking the Wheeler viewplane. The 1892 Red Onion sits on a 9,000 square feet lot that includes the one story commercial space to the east (the subject of this review) and a two story commercial space to the west. All three spaces were internally connected at one time to serve as a large Red Onion with a bar, nightclub and family dining room. The entire lot is designated a historic landmark and is considered contributing to the Commercial Core Historic District. The applicant proposes to create one new residential unit that spans the second and third floor of the proposed new addition. There are currently no residential units on the 9,000 square feet parcel. The first floor and basement are proposed to be commercial use. There is no proposed increase in net leasable commercial area. Significant setbacks are proposed for the second and third floors (12’ 1” and 45’ respectively) to maintain the prominence of the historic 1892 Red Onion. The proposed building height is 38.’ There is no rooftop deck proposed atop the 3rd story. Decks are proposed on the front elevation of the 2nd and 3rd stories. After two public hearings, HPC recommended in favor of the design reviews with conditions by a vote of 4:1. A copy of the approved massing is attached as Exhibit A. A copy of the HPC Resolution and Minutes from both HPC meetings are attached as Exhibits B, C and D, respectively. P337 IX.a Page 2 of 2 422 E. Cooper Street Staff Memo for Notice of Call Up PROCESS: For this application, City Council may vote to Call Up the project at their November 12, 2012 meeting. If City Council decides to exercise the Call Up provision, it will be placed on the November 26, 2012 City Council regular agenda for discussion. If City Council does not exercise the Call Up provision, the HPC Resolution shall stand, and the applicant will move forward with an application for a building permit. This application is subject to an administrative Growth Management review to create a free market residential unit on a landmark property (as a benefit to landmarks the first free market unit on a landmark parcel does not require mitigation) and Subdivision review by Planning and Zoning and City Council. If you have any questions about the project, please contact the staff planner, Sara Adams, 429- 2778 or sara.adams@cityofaspen.com RECOMMENDATION: Staff finds that the HPC applied the review criteria in accordance with the Land Use Code and the Historic Preservation program and recommends that City Council accept the decision and not call up the project. ATTACHMENTS: Exhibit A: Approved Plans Exhibit B: HPC Resolution 26, Series 2012 Exhibit C: HPC minutes September 12, 2012 Exhibit D: HPC DRAFT minutes October 24, 2012 P338 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 P339 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 P340 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 P341 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 P342 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 P343 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 P344 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 P345 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 33' - 0"12' - 0" 45' - 0" P346 IX.a A1 1 1 A1 2 A1 0 1 1 A1 4 1 5' - 4"32' - 10"12' - 0 1/2" P347 IX.a EX I S T I N G R E D O N I O N O F F I C E S EX I S T I N G R E D O N I O N 44 2 E . C O O P E R P348 IX.a 38' - 0" P349 IX.a 38' - 0" P350 IX.a P351 IX.a RE D O N I O N O F F I C E S RE D O N I O N 44 2 E . C O O P E R P352 IX.a P353 IX.a P354 IX.a 33' - 0"12' - 0" 45' - 0" P355 IX.a 33' - 0"12' - 0" 45' - 0" P356 IX.a P357 IX.a P358 IX.a P359 IX.a P360 IX.a P361 IX.a P362 IX.a 422 East Cooper Avenue HPC Resolution # 26, Series of 2012 Page 1 of 4 A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) GRANTING MAJOR DEVELOPMENT (CONCEPTUAL), COMMERCIAL DESIGN STANDARD REVIEW (CONCEPTUAL), DEMOLITION, AND VIEWPLANE FOR THE PROPERTY LOCATED AT 422 EAST COOPER AVENUE RED ONION CONDOS, UNIT 1, LOTS N, O, P, BLOCK 89, CITY AND TOWNSITE OF ASPEN, COLORADO RESOLUTION # 26, SERIES OF 2012 PARCEL ID: 2737-182-16-061. WHEREAS, the applicant, Red Onion Investors, LLC, represented by Stan Clauson Associates, Inc., has requested Major Development (Conceptual), Conceptual Commercial Design Standard Review, Demolition, and Viewplane Reviews the property located at 422 East Cooper Avenue, Red Onion Condos, Unit 1, Lots N, O, P, Block 89, City and Townsite of Aspen, Colorado; and WHEREAS, 422 East Cooper Avenue is located within the Commercial Core Historic District and is located on a designated historic parcel; and WHEREAS, Section 26.415.070 of the Municipal Code states that “no building or structure shall be erected, constructed, enlarged, altered, repaired, relocated or improved involving a designated historic property or district until plans or sufficient information have been submitted to the Community Development Director and approved in accordance with the procedures established for their review;” and WHEREAS, for Conceptual Major Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project’s conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, for Conceptual Commercial Design Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project’s conformance with the City of Aspen Commercial, Lodging and Historic District Design Objectives and Guidelines per Section 26.412.040.A.2, Commercial Design Standards Review Procedure, 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, in order to authorize a Demolition, according to Section 26.415.080, Demolition of designated historic properties, it must be demonstrated that the application meets any one of the following criteria: P363 IX.a 422 East Cooper Avenue HPC Resolution # 26, Series of 2012 Page 2 of 4 a. The property has been determined by the city to be an imminent hazard to public safety and the owner/applicant is unable to make the needed repairs in a timely manner, b. The structure is not structurally sound despite evidence of the owner’s efforts to properly maintain the structure, c. The structure cannot practically be moved to another appropriate location in Aspen, or d. No documentation exists to support or demonstrate that the property has historic, architectural, archaeological, engineering or cultural significance, and Additionally, for approval to demolish, all of the following criteria must be met: a. The structure does not contribute to the significance of the parcel or historic district in which it is located, and b. The loss of the building, structure or object would not adversely affect the integrity of the historic district or its historic, architectural or aesthetic relationship to adjacent designated properties and c. Demolition of the structure will be inconsequential to the historic preservation needs of the area; and WHEREAS, pursuant to 26.435.050.C., Mountain Viewplane Review Standards, of the Land Use Code, no development shall be permitted within a mountain view plane unless the Planning and Zoning Commission or the Historic Preservation Commission makes a determination that the proposed development complies with all requirements set forth below. 1. No mountain view plane is infringed upon, except as provided below. When any mountain view plane projects at such an angle so as to reduce the maximum allowable building height otherwise provided for in this Title, development shall proceed according to the provisions of Chapter 26.445 as a Planned Unit Development so as to provide for maximum flexibility in building design with special consideration to bulk and height, open space and pedestrian space and similarly to permit variations in lot area, lot width, yard and building height requirements and view plane height limitations. The Planning and Zoning Commission, after considering a recommendation from the Community Development Department, may exempt a development from being processed as a Planned Unit Development when the Planning and Zoning Commission determines that the proposed development has a minimal effect on the view plane. When any proposed development infringes upon a designated view plane, but is located in front of another development which already blocks the same view plane, the Planning and Zoning Commission shall consider whether or not the proposed development will further infringe upon the view plane and the likelihood that redevelopment of the adjacent structure will occur to re- open the view plane. In the event the proposed development does not further infringe upon the view plane and re-redevelopment to reopen the view plane cannot be anticipated, the Planning P364 IX.a 422 East Cooper Avenue HPC Resolution # 26, Series of 2012 Page 3 of 4 and Zoning Commission shall exempt the development from the requirements of this Section; and WHEREAS, during the September 12, 2012 meeting the applicant demonstrated compliance with Land Use Code Section 26.304.035 Neighborhood Outreach; and WHEREAS, Sara Adams, in her staff report to HPC dated September 12, 2012 performed an analysis of the application based on the standards, found that the review standards had been met, and recommended approval with conditions; and WHEREAS, at their regular meeting on October 24, 2012 continued from September 12, 2012 and September 19, 2012, the Historic Preservation Commission considered the application during a duly noticed public hearing, the staff memo and public comments, and found the proposal consistent with the review standards and recommended approval with conditions by a vote of four – one (4 - 1). NOW, THEREFORE, BE IT RESOLVED: That HPC hereby grants HPC Major Development (Conceptual), Conceptual Commercial Design Standard Review, Demolition, and Viewplane Review for the property located at 422 East Cooper Avenue, Red Onion Condos, Unit 1, Lots N, O, P, Block 89, City and Townsite of Aspen, Colorado with the following conditions: 1. Demolition of the building located at 422 E. Cooper Street and retaining the front façade is approved with the condition that a structural assessment of the front façade be submitted with the Final Review application. 2. The mass and scale is approved as presented in the application. 3. A maximum of 38 feet is approved as presented in the application, with Land Use Code height exemptions for elevator overrun and mechanical equipment as stated in Section 26.575.020.F(4) Allowed Exemptions to Height Limitations. 4. A mechanical plan and elevations shall be submitted with the Final Review application. 5. Off-site public amenity improvements to the Pedestrian Malls is approved in accordance with Land Use Code Section 26.575.030.C(2) Off-site provision of public amenity and is subject to review and approval by the Parks Department. The improvements shall equal or exceed the value of the cash in lieu payment of $67,500. 6. The proposal is determined to have a minimal impact on the viewplane due to the existing development that already blocks the viewplane and is hereby exempt from being processed as a PUD in accordance with Section 26.435.050.C.1. Any mechanical equipment placed within the viewplane shall comply with Section 26.435.050, which may require a new viewplane review. 7. A development application for a Final Development Plan shall be submitted within one (1) year of the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant a one-time extension of the expiration date for P365 IX.a 422 East Cooper Avenue HPC Resolution # 26, Series of 2012 Page 4 of 4 a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. ______________________ Jay Maytin, Vice- Chair Approved as to Form: ___________________________________ Debbie Quinn, Assistant City Attorney ATTEST: ___________________________ Kathy Strickland, Chief Deputy Clerk P366 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 12, 2012 1 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, Sallie Golden and Jane Hills. Staff present: Deborah Quinn, Assistant City Attorney Amy Guthrie, Historic Preservation Officer Kathy Strickland, Chief Deputy City Clerk MOTION: Jay moved to approve the minutes of August 15th second by Nora. All in favor, motion carried. Public comments: Bill Wiener, 701 Gibson. It is important to preserve the character of this community. The height issue is now before the public because of what went on with council and the 28 feet. When we put extra height on a building we are putting extra volume on it also. There are circumstances that where a building needs to be taller than 28 feet. To do that they need to mitigate. It is time to start looking at volume and that is mass and it is changing the character. There is a formula that I can work on. You would get setbacks that create urban feel with little gardens. Jay said our guidelines indicate no setbacks. Bill said the character of this community has been little gardens, flowers and a piece of sculpture and variety around town. This is not that kind of large city where we need everything to the property line. Bill said he will do a volume analysis. 422 E. Cooper Ave. Conceptual Major Development and Conceptual Commercial Design Review, Demolition, Mountain View Plane Review, Public Hearing Sallie recused herself. Deborah Quinn, Assistant City Attorney stated the public notice is in order and the applicant can proceed. Exhibit I Amy said we are dealing with a 9,000 square foot lot on the Cooper Ave mall and it contains 3 structures. One has an art gallery and a t-shirt shop, the Red Onion Restaurant and a poster shop. The entire property is landmarked and in the historic district. At one time the Red Onion occupied P367 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 12, 2012 2 all three spaces. This proposal only affects the portion of the property that is occupied by the poster shop. The structure was built around 1965-66. This application is to demolish the one story poster shop addition. The applicant is proposing to keep the façade as it is now on Cooper but there is some uncertainty as to whether it will survive the construction process. The new construction will have a one story element at the front, a setback two story element and setback three story element. There is no residential use on the lot right now but it would be created. Staff feels because it is set back and sympathetic to the architecture of the Red Onion and adjacent building we feel the scale is appropriate. Staff feels that the signage on the Red Onion restaurant east facing should not be blocked. The floor levels align with the adjacent buildings and staff feels the proportions are good. They are at the allowed height limit and are not asking to exceed it. There is a requirement that they address the public amenity requirement. There are several ways to do that. They can physically set a building back from the street and provide cash-in-lieu. They would like to continue to have the poster shop right at the street line and would make a contribution to improvements to Cooper Ave. They are required to provide a certain amount of trash and utility area and that is being met. They are located within the Wheeler Opera House view plane. There are many things in the way that obstruct that view and some existed at the time the view plane was adopted particularly the Paragon building. The view plan slices across the Red Onion property and we want to ensure that nothing they are constructing now makes the view plane blocked anymore. Their argument is that existing development on the Hyman mall already interferes with the projection of the view plan of Aspen Mountain and they are not making the situation worse. The issues that need addressed are demolition, the appropriateness of the mass, scale and height of the addition, cash-in-lieu; trash and utility and Wheeler Opera House view plane. Staff recommends conceptual approval with conditions. Patrick said if the buildings on Hyman were redeveloped they would have to comply with the view plane. Amy said you are supposed to address the situation as of today and are they infringing further on the view plan than other obstructing buildings already do. Stan Clauson and Associates Inc. Kim Weil, Poss Architects P368 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 12, 2012 3 Stan presented a power point on the existing buildings and proposed development. Regarding the neighborhood outreach we had a meeting explaining the project. The project was generally positively received. The building is a cinder block building, slab on grade and a portion of the Red Onion Restaurant comes into it on the first floor. Kim said the dimensions of the building are 20 x 100. Stan said in documentation that we have we show that 422 E. Cooper is not historical and has no historical significance even though it is associated with the historically designated Red Onion. On the first floor there is 1,000 square feet of net leasable and the proposed residence on the second and third floor would consist of 2,000 square feet. There are significant setbacks. On the first floor to the second floor it is set back 12 feet and on the third floor it is set back 45 feet. The existing façade will be maintained if we can shore it up. An elevator provides access to the third floor. The Red Onion sign would remain. The entry would be the same as it is now with a single doorway adjacent to the large picture window. From the doorway you would enter the commercial space and then enter stairs and the elevator to access the second and third level. There is no access to a third floor roof deck. The elevator has a simple over run on the third story. The highest point is 38 feet which is compliant with the code and then there is approximately a 4 foot elevator run. View plane The building is located within the Wheeler Opera House view plane generally speaking, but due to the height of the buildings on Hyman the proposed development will be blocked from the view plane. The view plane cuts off a portion of the third story. Because it is blocked the code provides for a complete exemption from the view plane. The blockage largely occurs from the Paragon building and the Roaring Fork building. Kim said it was not our intent to create an architectural statement as much as it was to do something of its time and respect the Red Onion. We will keep the white façade and we would step back and use brick and stone and glass rails which tend to minimumize the mass. We wanted to keep it simple because there is an alley behind it and two buildings on either side. Jay asked about the scrubber on the roof for the Red Onion restaurant and where it would be located. P369 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 12, 2012 4 Kim said we will retain a mechanical engineer to determine what our options are. Codes require hoods and kitchen equipment to be up and we aren’t sure which building it will be on top of since the owner owns all three buildings. New technology allows the mechanicals to be smaller. Jane asked about maintaining and retaining the Red Onion sign. With the decks and setbacks people will be living in those units and they will likely have things on their decks. Kim said the second level deck is set back for that very reason. We are holding the deck back from the sign so things can’t be put there. Jamie inquired about the street entrance. Kim said in order to retain the picture window the door entrance will be right where it is now to serve the retail and residential unit. It is a little step up. Nora said given the idea that we are trying to make iconic buildings stand out and have some breathing room how can we not over shadow the Red Onion building. Stan said the proposal has very significant setbacks. On the second floor it is set back 12 feet and 45 feet on the third floor. Kim pointed out that the lot is 100 feet deep and we are 45 feet back and there is no roof deck or stairs to the third floor. Kim said it would be difficult to come back later for a roof top deck because you would need an elevator and two sets of stairs. Chairperson, Ann Mullins opened the public comments. Junee Kirk said she attended the neighborhood meeting and listened to many of the comments. The Red Onion is one of the most iconic buildings and I would hope that you would not put the third story on but rather look at the balance of this. Balance in terms of space and space in terms of not building right next to it. The Red Onion had one story structures on either side. The guidelines indicated buildings next to iconic buildings should not exceed a P370 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 12, 2012 5 height of 28 feet. On the alley side with the third floor addition you will have a 42 foot high structure that will impact the Red Onion. This is an historic block and once you destroy the Red Onion it is sad thing that we are doing to this town and our local history. In Europe they really honor history. You should take the one story and go back 12 to 20 feet on the second story and they can still have their pent house. Chairperson, Ann Mullins closed the public comment section of the agenda item. Sallie stated that the sign should be protected and the mechanical should be addressed on the roof. Jay asked for information on the plate heights. Kim said the first floor is 13 feet and the second level to the third level is 11 feet. The third floor is 12. 6 feet. These are floor to floor heights. The plate heights would be lower. That amounts to a 38 foot high building. Ann outlined the issues: Demolition Mass and scale Height Public amenity Trash/utility View plane Patrick asked staff if by right they can build 38 feet. Amy said that is the maximum they can have and HPC would have to approve that height in the project. Jay pointed out that the Red Onion is the center of the block and everything else tapers down lower. The buildings behind the Red Onion are massive. If any block can handle 38 feet it is this block. I would like to see if the applicant can study the mechanical and see if they can bring the 38 feet down to 36 feet. That is an important part and we might not need the max for the program. Ann said the Red Onion is dominant on the block and we have one owner for all three lots and we can maintain the dominance of that historic resource P371 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 12, 2012 6 within the block. This project does not do that. The demolition is fine. The mass, scale and height is unacceptable. It completely dwarfs the Red Onion and you will get some of the view from the west side. On the east side it will be the tallest building in the block. The third story will stick out and dominate and compromise the Red Onion. The public amenity and trash/utility are fine. I can’t accept that something else is blocking the view plane. The main issue is the third story. Jamie said the third floor is over powering the Red Onion building. Jay said for what is behind this building and the large setback is clearly there to honor the Red Onion. I support the project with a restudy of the height and this project can handle the mass. Sallie recused herself. Jane will be voting. Nora said she feels we are chipping away at our mission. Our mission is to preserve what we have. The Red Onion deserves some prominence. Part of the appeal of this town is what we have in history and as we build these huge buildings next to it I have to look back and ask what I have contributed in preserving what we have. Willis said he feels the board is struggling with reading the mass and scale. It would really help to have a three dimensional representation and show the view planes. A one story building is not in the vocabulary of this project. Stan stated that the Red Onion is flanked by one and two story structures. The entry to the two story structure comes right up to the Red Onion. The building is at 38 feet. With respect to the view plane the code is very clear and if something interrupts the view plane in front of you, you are exempt from the view plane. We could have come to you with a two story building coming all the way out to the front but in respecting the sign and the Red Onion there is a significant setback for the second story and a significant setback for the third floor. We feel this is a very respectful and small project. We can do a three D model. MOTION: Ann moved to continue 422 E. Cooper to Sept. 19th; second by Jamie. Motion carried 6-1. Jay opposed. P372 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF SEPTEMBER 12, 2012 7 Patrick said his issue is the third story. Jamie said her concern is the height against the Red Onion and how much higher is it. Ann said she feels the building should be a two story. If that isn’t possible then there should be no view plane compromise. Willis said he feels the mass and profile is very promising and if you go two stories you will block the sign and that doesn’t make sense. From any pedestrian point of view you won’t see the third story. Jane said she agrees with Willis that a three D contextual of the neighborhood would be helpful. How does it compare to the street. I like the project and want to see it in terms of height context. MOTION: Jay moved to adjourn; second by Ann. All in favor, motion carried. Meeting adjourned at 8:00 p.m. Kathleen J. Strickland, Chief Deputy Clerk P373 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2012 1 Vice-chair, Jay Maytin called the meeting to order at 5:00 p.m. Commissioners in attendance: Nora Berko, Willis Pember, Sallie Golden and Jane Hills. Jamie McLeod, Ann Mullins and Patrick Sagal were absent. Staff present: Deborah Quinn, Assistant City Attorney Amy Guthrie, Historic Preservation Officer Kathy Strickland, Chief Deputy City Clerk Sara Adams, Senior Planner Motion: Nora moved to approve the minutes of Sept. 12th second by Willis. All in favor, motion carried. Motion: Jane moved to approve the minutes of September 19th second by Nora. All in favor, motion carried. Jane will recuse herself on 610 E. Hyman 400 E. Hyman Ave. – Minor Review Debbie Quinn said the public notice affidavit and they are in order and the applicant can proceed. Exhibit I Sara said the project is also called the Tom Thumb building located in the commercial core opposite the Wheeler Opera House. The applicant has submitted for a minor development review to do some window changes and freshening up of the existing building rather than the previous proposal of a large glass box. They are proposing window changes to the first and second floor. On the second floor they want to put larger windows in. This does not meet our strict design guidelines for downtown where it says there is a solid to void ratio on the second floor. However, this building was built in 1981 and we think the proposal to enlarge the windows on the second floor actually freshens up the building and contributes more to the commercial core than leaving the windows the way they are. Signage: Staff has some concerns with the signage and as a condition of approval it should be reviewed by staff and monitor. Signage is not something HPC typically sees. It is usually reviewed with the zoning officer but since it is wrapped with the minor review we thought it prudent to bring it to the board. Our big concern is the location of the signage. There is P375 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2012 2 going to be one commercial tenant for the first and second floors and the signage is proposed for the second floor and we feel it is more important to have it on the first floor. We are also concern about the back lit nature of the signage. What they are proposing meets are zoning regulations for lighting and signage, however this is directly across from the Wheeler and we felt that a back lit sign maybe distracting from the historic Wheeler and we are suggesting the applicant look at a more traditional lighting such as a goose neck to be reviewed by staff and monitor. Regarding the mechanical they are proposing two large HVAC’s on top of the building and it is an HPC concern and a zoning concern. It has to be pushed back from the street façade. Staff is suggesting that they find the smallest HVAC systems that they can and push it back as far as they can. We also recommend that staff review the proposed screening once they are in their location. The plan is also to add two other chair lifts in the plaza area to make the entire facility accessible. Staff is recommending approval with conditions. Louis Loria, architect Ken Sack, owner Louis said with the nature of this particular lot and where it is we thought that by making a more harmonious façade and more transparent would be a nice addition to the retail at street level. The upper larger windows gives the client more ability to translate their product to the people on the street. We feel the signage is appropriate and it meets the criteria and we feel it is not out of character on the second floor. We would prefer the back lit signage and it is an Led within the letters and is soft. It is not a glaring light. The goose neck has a lot of glare and it is out dated. Louis said on the accessibility there is a stairway that goes down and we will put a chair lift that is ADA approved which will make the overall building accessible. One goes to the street level and one goes to the lower level. Louis said the mechanical equipment the building is only 20 feet wide. It would not be visible from Hyman Ave. but is visible from the Wheeler opera house. Code says put the mechanical 20 feet back but it is impossible because the building is only 20 feet wide. We could push the unit back to the other side if the board desires so it is not visible from the Opera House. We are turning the area into a dynamic retail space. New front elevation – Exhibit II P376 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2012 3 Louis said the frames of the windows will be stainless steel and the screening is a brown metal tubing to screen it and be as quiet as possible. Louis said it is really a soft hallow around the letters of the signage. Nora said her concern is looking from the lobby of the Wheeler which is the second floor and looking into the windows. Louis said this building is all one tenant and the windows are translucent windows. Louis said the heating is generated by the lighting within the space and equipment which is driving the cooling out of the space. We have to stay within the energy code. Willis asked about the awning. Louis said the awning will be white and sunbrella fabric. The materials for the lettering will be stainless brushed steel. Jay asked if the windows would be operable. Louis said no. Sallie said the windows enhance the space and should be monitored by staff and monitor. If the mechanical can be pushed back as far as you can that would be appropriate. Willis said this proposal enhances that corner and adding the transparency enhances the building. We need to be careful that the hallow is a modest hallow. The signage is elegant and the location is also elegant. Jane said the proposal is beautiful and the window changes creates a vitality interaction on the street. On the signage that is not in our purview but we need to be careful so that it is a soft subtle light. I am not in favor of the goose neck. The lift is a great amenity for that area. On the awning being white we get a lot of red dust storms and white will be a maintenance issue. Nora concurred with Willis. Nora said her only concern is the view plane from the Wheeler. Jay said he likes the project. On the mechanical we need to make sure that it is the smallest possible. The proposed location is appropriate and I wouldn’t change that. Staff and monitor should review the screening of the mechanical. P377 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2012 4 Vice-chair Jay Maytin opened the public hearing. There were no public comments. The public comment section of the agenda item was closed. Louis said he appreciates all the comments and feels the design is more appropriate for the area. On the lighting I will work with Sara to make it as acceptable as possible. I know what the board wants. This is a luxury store. We can also have a mockup made before it is installed. On the screening we can look at other alternatives. Ken Sack said he is part owner of the store and assured the board that the awning will be kept clean. Jay recommended that condition #2 be amended that the wall sign be reviewed by staff and monitor. #3 the wall sign and lighting and a mockup to be approved by staff and monitor. #4 to be approved by staff and monitor. Motion: Jay moved to approve resolution #25 with the following changes: #2Wall sign location to be reviewed and approved by staff and monitor. #3 Applicant shall provide a mockup of the wall sign including the lighting and to be approved by staff and monitor. #4 Mechanical to be approved by staff and monitor. Motion second by Nora. Willis made a friendly amendment to strike #2 as the sign location is approved on the second floor as presented. Nora accepted the amendment All in favor, motion carried. 5-0. Sallie and Jay are the monitors. 422 E. Cooper Ave. – Conceptual Major Development and Conceptual commercial Design Review, Demolition, Mountain View Plane Review, Public Hearing Sara said the key issues are height, impact of the third floor, vertical sign and mechanical equipment. Stan Clauson did a power point showing the sign from different views. The sign is not obscured as the third floor is set back 45 feet. Stan said they P378 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2012 5 realized the setbacks had to be significant due to the Red Onion. Stan said we can review the mechanical at final and will look for the smallest equipment available. Willis inquired about the view plane. Sara said the view plane is from the steps of the Wheeler opera house. Kim said the overrun on the third floor for mechanical is 4.2 feet. Nora said she supports demolition and the public amenity request and the trash/utility area. Two stories are OK but the 3 rd floor is too much. The Red Onion is the only structure on the block that needs to be prominent. Jane said she is OK with staff’s recommendations. With regard to the massing and scale the applicant has done a great job and the setbacks are OK. Jane said the heights are OK. I’m not in favor of the elevator over fun but it is a requirement. Sallie agreed with Jane’s comments. Willis said it comes down to the third floor as seen from Casa Tua. The massing is successful and the upper floors have no visible connection to the Red Onion. Jay said the project is good. For final there needs to be a restudy of the roofline/cornice. The detailing on the second floor needs to be simpler. Vice-chair Jay Maytin opened the public hearing. Junee Kirk said you can see the massive building from the east side. The Red Onion is the most obvious building on the block. Vice-chair Jay Maytin closed the public hearing. Sallie agreed with Jay that the detailing on the second floor should be restudied for final and the lines simplified. MOTION: Jay moved to approve resolution 26 second by Jane. Motion carried 4-1. Nora opposed. P379 IX.a ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF OCTOBER 24, 2012 6 610 E. Hyman – AspenModern Negotiation for Voluntary Landmark Designation, Conceptual Major Development, Conceptual Commercial Design Review, Special Review for utility/trash recycling area, continued from October 10th – public hearing Jane recused herself. Amy summarized the staff memo. This is an AspenModern negotiation P380 IX.a Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Sara Adams, Senior Planner THRU: Click here to enter text. DATE OF MEMO: 10/31/2012 MEETING DATE: 11/12/2012 RE: Notice of Call-up for 400 E. Hyman Avenue REQUEST OF COUNCIL: PREVIOUS COUNCIL ACTION: BACKGROUND: DISCUSSION: FINANCIAL/BUDGET IMPACTS: Click here to enter text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FINANCE REVIEW: Click here to enter text. ENVIRONMENTAL IMPACTS: Click here to enter text. RECOMMENDED ACTION: P381 IX.b Page 2 of 2 ALTERNATIVES: PROPOSED MOTION: CITY MANAGER COMMENTS: ATTACHMENTS: Notes: • Please use page numbers on all memos and attachments, especially for work sessions • The memo should be as long as it needs to be – but remember, you’re not writing a novel. Use attachments for more detailed information, ordinances and resolutions, etc. • Attachments: All attachments to the memo should be referenced somewhere in the body of the memo. All attachments should be titled as “Attachment”, “Exhibit” or “Schedule” with a letter following: Attachments: A - Exhibit One - Map ... B - Property Description C - Chart of Costs D - Resolution #97-1 P382 IX.b MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Sara Adams, Senior Planner THRU: Chris Bendon, Community Development Director RE: Notice of HPC approval of Final Commercial Design and Minor Development: 400 E. Hyman Avenue, aka Tom Thumb Building, HPC Resolution #25, Series of 2012 MEETING DATE: October 24, 2012 BACKGROUND: On October 24, 2012, the Historic Preservation Commission (HPC) approved Final Commercial Design Review and Minor Development Review for a project at 400 E. Hyman Ave. (aka the Tom Thumb Building) located across from the Wheeler Opera House on the corner of Mill and Hyman. Minor Development addresses compatibility of the building within the Commercial Core Historic District for projects with a very limited scope. ACTION TAKEN BY HPC: HPC approved minor changes including larger windows, signage and mechanical equipment to the corner portion of the existing building located at 400 E. Hyman Avenue which was built in 1981. It is a non-contributing building within the Commercial Core Historic District. HPC included conditions of approval that require the mechanical equipment on the rooftop to be the minimum size allowed and setback from the street façade to the greatest extent practical. In addition, mechanical screening and a mock up of the sign lighting to be reviewed by Staff and monitor to assess the impact of both elements on the historic Wheeler Opera House. HPC staff recommended in favor of the design reviews with conditions by a vote of 5:0. A copy of the approved massing is attached as Exhibit A. A copy of the HPC Resolution and Minutes are attached as Exhibits B and C, respectively. PROCESS: For this application, City Council may vote to Call Up the project at their November 12, 2012 meeting. If City Council decides to exercise the Call Up provision, it will be placed on the November 26, 2012 City Council regular agenda for discussion. If City Council does not exercise the Call Up provision, the HPC Resolution shall stand, and the applicant will move forward with an application for a building permit. This application is not subject to future land use review. If you have any questions about the project, please contact the staff planner, Sara Adams, 429-2778 or sara.adams@cityofaspen.com RECOMMENDATION: Staff finds that the HPC applied the review criteria in accordance with the Land Use Code and the Historic Preservation program and recommends that City Council accept the decision and not call up the project. ATTACHMENTS: Exhibit A: Approved Plans Exhibit B: HPC Resolution 25, Series 2012 Exhibit C: HPC draft minutes P383 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 40 0 E A S T H Y M A N A V E N U E AS P E N , C O L O R A D O 8 1 6 1 1 1 P385 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 01 AE R I A L V I E W 03 VI E W P L A N E P L A N SOUTH M I L L S T . 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P387 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 01 PR O P O S E D F I R S T F L O O R P L A N 4 MI L L S T R E E T HYMAN AVENUE MALL P388 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 02 PR O P O S E D S E C O N D F L O O R P L A N 5 MI L L S T R E E T HYMAN AVENUE MALL P389 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 6 03 PR O P O S E D R O O F P L A N MI L L S T R E E T HYMAN AVENUE MALL P390 IX.b HY M A N A V E N U E M A L L AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 01 CR O S S E L E V A T I O N 7 P391 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 01 PR O P O S E D E X T E R I O R E L E V A T I O N 02 PR O P O S E D E X T E R I O R E L E V A T I O N 8 P392 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 01 PR O P O S E D E X T E R I O R E L E V A T I O N 02 PR O P O S E D E X T E R I O R E L E V A T I O N 9 P393 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 07 EX T E R I O R E L E V A T I O N " G " 10 04 EX T E R I O R E L E V A T I O N " D " 01 EX T E R I O R E L E V A T I O " A " 02 EX T E R I O R E L E V A T I O N " B " 05 EX T E R I O R E L E V A T I O N " E " 06 EX T E R I O R E L E V A T I O N " F " 03 EX T E R I O R E L E V A T I O N " C " 08 EX T E R I O R E L E V A T I O N " H " 09 EX T E R I O R E L E V A T I O N " I " P394 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 11 01 EX T E R I O R E L E V A T I O " J " 02 EX T E R I O R E L E V A T I O " K " 03 EX T E R I O R E L E V A T I O " L " 04 EX T E R I O R E L E V A T I O " M " 05 EX T E R I O R E L E V A T I O " N " P395 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 01 EX I S T I N G P E R S P E C T I V E V I E W 12 P396 IX.b AT M O S P H E R E D E S I G N & A R C H I T E C T U R E , P L L C 24 1 L E X I N G T O N A V E . , M O U N T K I S C O , N Y 1 0 5 4 9 (T ) 9 1 4 . 2 4 4 . 1 3 0 0 ( F ) 9 1 4 . 2 4 4 . 0 5 9 9 HI S T O R I C P R E S E R V A T I O N C O M M I S S I O N R E V I E W O F 1 3 OF F I C I N E P A N E R A I 40 0 E A S T H Y M A N A V E , A S P E N , C O 8 1 6 1 1 01 PR O P O S E D P E R S P E C T I V E V I E W 13 P397 IX.b HPC Resolution No.25, Series of 2012 400 East Hyman Ave. (Tom Thumb Building) Page 1 of 3 A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) APPROVING MINOR DEVELOPMENT AND CONSOLIDATED COMMERCIAL DESIGN STANDARD REVIEW FOR 400 EAST HYMAN AVENUE, TOM THUMB CONDOMINIUMS, SPECIFICALLY UNITS C-301 AND C-302, LOTS K, L AND A PORTION OF LOT M, BLOCK 88, CITY AND TOWNSITE OF ASPEN, COLORADO RESOLUTION #25, SERIES OF 2012 PARCEL ID: 2737-073-43-001 through -005, 2737-073-43-009 through -015, 2737-073-43-706 through -708, and 2737-073-43-801. WHEREAS, the applicant, Ken Sack of 400 Hyman LLC, represented by Louis Loria Atmosphere Design Group, has requested Minor Development and Consolidated Commercial Design Review approval for 400 East Hyman Avenue, Tom Thumb Condominiums, Units C-301 and C-302, Lots K, L and a portion of Lot M, Block 88, 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, the Tom Thumb Condominium Homeowner’s Association has consented to the application; and WHEREAS, the property is located within the Commercial Core Historic District and is considered a non-contributing building; and WHEREAS, for Minor Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project’s conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.C of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, for Consolidated Commercial Design Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project’s conformance with the City of Aspen Commercial, Lodging and Historic District Design Objectives and Guidelines per Section 26.412.040.A.2, Commercial Design Standards Review Procedure, 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 P399 IX.b HPC Resolution No.25, Series of 2012 400 East Hyman Ave. (Tom Thumb Building) Page 2 of 3 WHEREAS, Sara Adams, in her staff reports dated October 24, 2012, performed an analysis of the application based on the standards, found that the review standards, the Commercial, Lodging and Historic District Design Objectives and Guidelines, and the City of Aspen Historic Preservation Design Guidelines are met with conditions; and WHEREAS, during a duly noticed public hearing on October 24, 2012, the Historic Preservation Commission considered the application, found the application was consistent with the applicable review standards and approved the application by a vote of five to zero (5 – 0), with conditions. NOW, THEREFORE, BE IT RESOLVED: That HPC hereby approves Consolidated Commercial Design Review and Minor Development for the property located at 400 E. Hyman Avenue, Tom Thumb Building, Condominium, specifically Units C-301 and C-302, Lots K and L and a portion of Lot M, Block 88, City and Townsite of Aspen, County of Pitkin, State of Colorado, with the following conditions: APPROVED BY THE COMMISSION at its regular meeting on the 24th day of October, 2012. 1. The windows are approved as presented. 2. The applicant shall provide a mock up of the sign lighting. The lighting is to be reviewed and approved by Staff and monitor. 3. The mechanical equipment setback shall be increased to the greatest extent practical and the size of the mechanical equipment reduced to the smallest size allowed, and consolidated into one unit if possible to be approved by Staff and Monitor. 4. The mechanical equipment location is subject to review and approval for a dimensional variance by the Community Development Director. 5. Staff and Monitor shall review and approve the mechanical screen after the location and size of the mechanical equipment is finalized. 6. The accessible lift is approved with the condition that it must meet Building Code requirements. 7. Lighting and signage shall meet City Land Use Code requirements. 8. There shall be no deviations from the exterior elevations as approved without first being reviewed and approved by HPC staff and monitor, or the full board. 9. The development approvals granted herein shall constitute a site-specific development plan vested for a period of three (3) years from the date of issuance of a development order. However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 180 days of the effective date of the development order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of Section 26.104.050 (Void permits). P400 IX.b HPC Resolution No.25, Series of 2012 400 East Hyman Ave. (Tom Thumb Building) Page 3 of 3 Zoning that is not part of the approved site-specific development plan shall not result in the creation of a vested property right. No later than fourteen (14) days following final approval of all requisite reviews necessary to obtain a development order as set forth in this Ordinance, the City Clerk shall cause to be published in a newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to this Title. Such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a site specific development plan, and the creation of a vested property right, valid for a period of three (3) years, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: 400 East Hyman Avenue. Nothing in this approval shall exempt the development order from subsequent reviews and approvals required by this approval of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with this approval. The approval granted hereby shall be subject to all rights of referendum and judicial review; the period of time permitted by law for the exercise of such rights shall not begin to run until the date of publication of the notice of final development approval as required under Section 26.304.070(A). The rights of referendum shall be limited as set forth in the Colorado Constitution and the Aspen Home Rule Charter. __________________________ Jay Maytin, Vice - Chair Approved as to Form: ____________________________________ Debbie Quinn, Assistant City Attorney ATTEST: ___________________________ Kathy Strickland, Chief Deputy Clerk P401 IX.b Exhibit C Vice-chair, Jay Maytin called the meeting to order at 5:00 p.m. Commissioners in attendance: Nora Berko, Willis Pember, Sallie Golden and Jane Hills. Jamie McLeod, Ann Mullins and Patrick Sagal were absent. Staff present: Deborah Quinn, Assistant City Attorney Amy Guthrie, Historic Preservation Officer Kathy Strickland, Chief Deputy City Clerk Sara Adams, Senior Planner Motion: Nora moved to approve the minutes of Sept. 12th second by Willis. All in favor, motion carried. Motion: Jane moved to approve the minutes of September 19th second by Nora. All in favor, motion carried. Jane will recuse herself on 610 E. Hyman 400 E. Hyman Ave. – Minor Review Debbie Quinn said the public notice affidavit and they are in order and the applicant can proceed. Exhibit I Sara said the project is also called the Tom Thumb building located in the commercial core opposite the Wheeler Opera House. The applicant has submitted for a minor development review to do some window changes and freshening up of the existing building rather than the previous proposal of a large glass box. They are proposing window changes to the first and second floor. On the second floor they want to put larger windows in. This does not meet our strict design guidelines for downtown where it says there is a solid to void ratio on the second floor. However, this building was built in 1981 and we think the proposal to enlarge the windows on the second floor actually freshens up the building and contributes more to the commercial core than leaving the windows the way they are. Signage: Staff has some concerns with the signage and as a condition of approval it should be reviewed by staff and monitor. Signage is not something HPC typically sees. It is usually reviewed with the zoning officer but since it is wrapped with the minor review we thought it prudent to bring it to the board. Our big P403 IX.b concern is the location of the signage. There is going to be one commercial tenant for the first and second floors and the signage is proposed for the second floor and we feel it is more important to have it on the first floor. We are also concern about the back lit nature of the signage. What they are proposing meets are zoning regulations for lighting and signage, however this is directly across from the Wheeler and we felt that a back lit sign maybe distracting from the historic Wheeler and we are suggesting the applicant look at a more traditional lighting such as a goose neck to be reviewed by staff and monitor. Regarding the mechanical they are proposing two large HVAC’s on top of the building and it is an HPC concern and a zoning concern. It has to be pushed back from the street façade. Staff is suggesting that they find the smallest HVAC systems that they can and push it back as far as they can. We also recommend that staff review the proposed screening once they are in their location. The plan is also to add two other chair lifts in the plaza area to make the entire facility accessible. Staff is recommending approval with conditions. Louis Loria, architect Ken Sack, owner Louis said with the nature of this particular lot and where it is we thought that by making a more harmonious façade and more transparent would be a nice addition to the retail at street level. The upper larger windows gives the client more ability to translate their product to the people on the street. We feel the signage is appropriate and it meets the criteria and we feel it is not out of character on the second floor. We would prefer the back lit signage and it is an Led within the letters and is soft. It is not a glaring light. The goose neck has a lot of glare and it is out dated. Louis said on the accessibility there is a stairway that goes down and we will put a chair lift that is ADA approved which will make the overall building accessible. One goes to the street level and one goes to the lower level. Louis said the mechanical equipment the building is only 20 feet wide. It would not be visible from Hyman Ave. but is visible from the Wheeler opera house. Code says put the mechanical 20 feet back but it is impossible because the building is only 20 feet wide. We could push the unit back to the other side if the board desires so it is not visible from the Opera House. We are turning the area into a dynamic retail space. New front elevation – Exhibit II P404 IX.b Louis said the frames of the windows will be stainless steel and the screening is a brown metal tubing to screen it and be as quiet as possible. Louis said it is really a soft hallow around the letters of the signage. Nora said her concern is looking from the lobby of the Wheeler which is the second floor and looking into the windows. Louis said this building is all one tenant and the windows are translucent windows. Louis said the heating is generated by the lighting within the space and equipment which is driving the cooling out of the space. We have to stay within the energy code. Willis asked about the awning. Louis said the awning will be white and sunbrella fabric. The materials for the lettering will be stainless brushed steel. Jay asked if the windows would be operable. Louis said no. Sallie said the windows enhance the space and should be monitored by staff and monitor. If the mechanical can be pushed back as far as you can that would be appropriate. Willis said this proposal enhances that corner and adding the transparency enhances the building. We need to be careful that the hallow is a modest hallow. The signage is elegant and the location is also elegant. Jane said the proposal is beautiful and the window changes create a vitality interaction on the street. On the signage that is not in our purview but we need to be careful so that it is a soft subtle light. I am not in favor of the goose neck. The lift is a great amenity for that area. On the awning being white we get a lot of red dust storms and white will be a maintenance issue. Nora concurred with Willis. Nora said her only concern is the view plane from the Wheeler. Jay said he likes the project. On the mechanical we need to make sure that it is the smallest possible. The proposed location is appropriate and I wouldn’t change that. Staff and monitor should review the screening of the mechanical. P405 IX.b Vice-chair Jay Maytin opened the public hearing. There were no public comments. The public comment section of the agenda item was closed. Louis said he appreciates all the comments and feels the design is more appropriate for the area. On the lighting I will work with Sara to make it as acceptable as possible. I know what the board wants. This is a luxury store. We can also have a mockup made before it is installed. On the screening we can look at other alternatives. Ken Sack said he is part owner of the store and assured the board that the awning will be kept clean. Jay recommended that condition #2 be amended that the wall sign be reviewed by staff and monitor. #3 the wall sign and lighting and a mockup to be approved by staff and monitor. #4 to be approved by staff and monitor. Motion: Jay moved to approve resolution #25 with the following changes: #2Wall sign location to be reviewed and approved by staff and monitor. #3 Applicant shall provide a mockup of the wall sign including the lighting and to be approved by staff and monitor. #4 Mechanical to be approved by staff and monitor. Motion second by Nora. Willis made a friendly amendment to strike #2 as the sign location is approved on the second floor as presented. Nora accepted the amendment All in favor, motion carried. 5-0. Sallie and Jay are the monitors. P406 IX.b Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Jennifer Phelan, Deputy Planning Director THRU: Click here to enter text. DATE OF MEMO: 11/2/2012 MEETING DATE: 11/12/2012 RE: 616 E. Hyman Ave., Notice of Call - up REQUEST OF COUNCIL: PREVIOUS COUNCIL ACTION: BACKGROUND: DISCUSSION: FINANCIAL/BUDGET IMPACTS: Click here to enter text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FINANCE REVIEW: Click here to enter text. ENVIRONMENTAL IMPACTS: Click here to enter text. RECOMMENDED ACTION: P407 IX.c Page 2 of 2 ALTERNATIVES: PROPOSED MOTION: CITY MANAGER COMMENTS: ATTACHMENTS: Notes: • Please use page numbers on all memos and attachments, especially for work sessions • The memo should be as long as it needs to be – but remember, you’re not writing a novel. Use attachments for more detailed information, ordinances and resolutions, etc. • Attachments: All attachments to the memo should be referenced somewhere in the body of the memo. All attachments should be titled as “Attachment”, “Exhibit” or “Schedule” with a letter following: Attachments: A - Exhibit One - Map ... B - Property Description C - Chart of Costs D - Resolution #97-1 P408 IX.c MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Jennifer Phelan, Deputy Planning Director THRU: Chris Bendon, Community Development Director RE: Notice of P&Z approval of Conceptual Commercial Design: 616 E. Hyman Avenue, P&Z Resolution #20, Series of 2012 MEETING DATE: November 12, 2012 BACKGROUND: On October 30, 2012, the Planning and Zoning Commission (P&Z) approved Conceptual Commercial Design Review for a project at 616 E. Hyman Ave. (located on the north side of E. Hyman between Hunter and Spring). Conceptual Commercial Design Review addresses the mass, scale and placement of a proposed building, and provides the applicant with direction for moving forward with their proposal. The applicant is proposing the expansion and redevelopment of the existing two story building including an expansion of the existing buildings’ footprint on the second story and a new third story. The project re-uses the existing building, and is proposed to be 38 feet in height, which is within the maximum height of 36 – 40 foot height allowed under the code in effect at the time of initial application. The building is proposed to be a mix of Commercial, Affordable Housing and Free-Market Residential space. ACTION TAKEN BY P&Z: Planning staff recommended in favor of the design review with condition that the height of the building not exceed 36 feet. The Planning and Zoning commission determined that an additional two feet in height, for a maximum height of 38 feet, was appropriate by a vote of 6:1. A copy of the approved massing is attached as Exhibit A. A copy of the HPC Resolution and Minutes are attached as Exhibits B, C and D, respectively. PROCEDURE: For this application, City Council may vote to Call Up the project at their November 12, 2012 or November 26, 2012 meeting. If City Council decides to exercise the Call Up provision, it will be placed on the December 10th City Council regular agenda for discussion. If City Council does not exercise the Call Up provision, the P&Z Resolution shall stand, and the applicant will move forward through the land use review process. This application will be subject to future Subdivision, Growth Management, and Final Commercial Design Reviews. If you have any questions about the project, please contact the staff planner, Jennifer Phelan, 429-2759 or jennifer.phelan@cityofaspen.com. P409 IX.c RECOMMENDATION Staff recommends City Council not call this project up. ATTACHMENTS: Exhibit A: Approved Plans Exhibit B: P&Z Resolution 20, Series 2012 Exhibit C: P&Z draft minutes 10/16/12 Exhibit D: P&Z draft minutes 10/30/12 P410 IX.c P411 IX.c P412 IX.c P413 IX.c P414 IX.c 7 Hyman St. Rendering 38’ Parapet October 16, 2012 P415 IX.c 9 Hyman St. Rendering 38’ Parapet October 16, 2012 P416 IX.c 10 Aerial Rendering 1 October 30, 2012 P417 IX.c 11 Aerial Rendering 2 October 30, 2012 P418 IX.c P419 IX.c P420 IX.c P421 IX.c P423 IX.c P424 IX.c P425 IX.c P426 IX.c P427 IX.c P428 IX.c Regular City Planning & Zoning Meeting – Minutes October 30 2012 1 Continued Public Hearing: 616 E Hyman – Conceptual Commercial Design Review LJ Erspamer opened the continued public hearing for 616 East Hyman – Conceptual Commercial Design Review. Jennifer Phelan noted that this was a continued hearing for 616 East Hyman which was last heard on October 16th and the application was reviewed for conceptual commercial design. Jennifer said the one issue that was not resolved was the building height, since that meeting she asked the applicant to submit sections of the building and a roof plan so the commission could understand better how the building will be built with floor to ceiling heights and floor to floor heights. Jennifer said that was exhibit G of the packet. The roof plan is included on the first page (page 25) with color coding. Jennifer said the elevations were on pages 26 and 27 you can see the actual floor to floor height and the floor to ceiling heights. Staff is still recommending that the building come down to 36 feet rather than the 38 that is being requested. Staff feels that the roof parapet which is 18 inches could be removed and it would reduce the height right there and if you reduced 6 inches floor to ceiling height on the 3rd floor you would be down to your 36 feet. Cliff asked what the commercial core was for C-1 on the 1st floor are we okay. Jennifer said the floor to ceiling heights are a discussion at final commercial design. Jennifer said that we saw one code at the time which did not have a floor to ceiling height but the commercial design standards talk about minimum floor to ceiling heights. Mitch Haas of Haas Land Planning introduced Andy Wisnowski and Les Rosenstein from Poss Architecture and Planning. Mitch said they were at 40 feet on the building height at the highest points of the building and dropped down a little bit. Mitch used power point to show the changes except they were in a mirror image and with Charles Cunniffe’s Building next to it and showed the 10 foot piece and the 9 foot. Mitch said the parapet functional purpose as a drainage system and from the street perspective looking up from the street you won’t see the parapet; there is a reason that all of the old buildings have parapets because they are an important feature. There is not a parapet on the second story behind the wall because you are recessed back. Mitch reminded the commission that this whole block was going through a Renaissance if you will; the building on the corner was going through a change with a 37 foot height limit; between that building and this building, the Charles Cunniffe Building that was approved by HPC with a 38 foot in the back portion of P429 IX.c Regular City Planning & Zoning Meeting – Minutes October 30 2012 2 the building. The Crandall Building already has portions of 38 feet and the other side of the street has everything bigger the Garfield Hecht Building is 36 to 38 feet; The Muse building is 38 feet and the Museum is 57 feet. Mitch said if you want to see over that Museum you need to get as far back as you can which is what we have tried to do. Mitch said 1.24 they have followed the letter of this one precisely using one or more of the following; setting back upper floors to vary the building façade profiles and the roof forms across the width and depth of the building. Mitch said they have set back the upper floor and varied the roof form heights and if we lower the roof to 36 feet it will be a flat roof all the way across the upper 3rd floor. Les showed the next slides where the building drops from 40 to 38 feet; he showed aerial views. Cliff said the 1st floor is 12 foot from floor to floor, the 2nd floor is 11 foot and the 3rd floor is anywhere from 12 feet. Jennifer said the floor to ceiling heights are from 9 to 11.6 feet and you add 2 feet extra feet for structure so you are going from 11.6 to 13.6 and an extra 18 inches for the parapet. LJ asked if you didn’t have the parapet you would be within the code. Jennifer replied it would be 6 inches off; the floor to top of the parapet runs from 12 feet 6 inches to 15 feet depending on the area of the building because there are different floor to ceiling heights on the 3rd floor. Mitch said the qualitative measurement mitigates the quantitative; looking at it the setback, the architecture elements, variation of the roof height takes all of that number that we are focusing on. Andy said that you can see from these images they are not going to be seen. Jim said the issue is 2 feet. Mitch replied right. Jim said staff wants 36. Jennifer replied yes. Jim asked why are you expecting 36. Jennifer said if you look at the design guidelines granting additional range in variation in building they are talking about the street façade so you don’t want every cornice line at the same height on the whole block so you want undulation of different buildings. Jennifer said there doesn’t seem the basis for height in granting the additional height variance to meet the criteria in the commercial design standards. LJ said the canopy was at 36 feet. Andy said it was below that and it helps to screen that height to some degree. Stan asked what drove the size of the 3rd floor. Andy replied that floor area controls the size of the area. Stan asked if there was a lot of mechanical on the roof. Andy responded there would be a little mechanical shed in the back and we have mechanical down in the basement. Andy said it was in the roofline section. P430 IX.c Regular City Planning & Zoning Meeting – Minutes October 30 2012 3 No public comments. Commissioner Comments: Jim said that he would support this application with the 38 foot height. LJ asked if the parapet was the just going up or does it have to do with the ceiling. Bill Poss explained the parapet was like a curb on the roof that helps control drainage, helps screen things. LJ said and that was 18 inches high. Mitch said that was correct. Jasmine agreed with Jim because the 38 feet is only going to be for a portion of that top floor and seems to be a reasonable compromise and when you are faced with a monster across the street everything is going to look minuscule. Jasmine said that is not a reason and unlike Jim she really didn’t care for the architecture; if there weren’t those big panels in front the top the heaviness of the building would be greatly improved. Jasmine said the compromise fits well enough into the code. Stan said we have to look at the intent of these guidelines and look at 1.23 the new building should reflect variation but more importantly it is about the massing that this building presents and there is lots of variation because of the way that this building is designed. Stan said because the building is setback it doesn’t make sense that the 3rd floor is set so far back. Bert said he was reading the guideline from the 1.23 which was pretty clear when we can grant height variances is to achieve different levels in heights; primary function of this building is civic; some portion of the building is affected by height restriction where it may be appropriate for affordable housing or demonstrate energy efficiency. Jim said it makes a demonstrable contribution to the building’s energy. LJ asked what section of the code were we talking about. Jennifer said it was on page 24 of the guidelines. Mitch said the standard was 1.23 everything below that were guidelines. MOTION: Keith Goode moved to extend the meeting to 7:10pm, seconded by Stan Gibbs. All in favor. MOTION: Jim DeFrancia moved to approve Resolution 20 approving the conceptual design review for 616 East Hyman shall not exceed 38 feet in height as represented in the attached exhibits; seconded by Jasmine Tygre. Roll call: Stan Gibbs, yes; Keith Goode, yes; Cliff Weiss, yes; Bert Myrin, no; Jasmine Tygre, yes; Jim DeFrancia, yes; LJ Erspamer, yes. APPROVED 6-1. P431 IX.c Regular City Planning & Zoning Meeting – Minutes October 30 2012 4 Jennifer said the applicant asked for a second motion to add all other dimensional requirements except for the height shall be at final design review and the existing public amenity space is 420 square feet. MOTION: Jim DeFrancia moved to accept the motion to add all other dimensional requirements except for the height at 38 feet shall be at final design review and the existing public amenity space is 420 square feet; seconded by Jasmine Tygre. Roll call vote: Bert Myrin, no; Keith Goode, yes; Cliff Weiss, yes; Stan Gibbs, yes; Jasmine Tygre, yes; Jim DeFrancia, yes; LJ Erspamer, yes. APPROVED 6-1. Adjourned at 7:20 pm. Jackie Lothian, Deputy City Clerk P432 IX.c EXECUTIVE SESSION Date November 12, 2012 Call to order at: 1_ 'cam L Councilmembers present: Councilmembers not present: E Mick Ireland ❑ Mick Ireland [X] Steve Skadron ❑ Steve Skadron Adam Frisch ❑ Adam Frisch Q Torre ❑ Torre R Derek Johnson ❑ Derek Johnson II. Motion to go into executive session by w c,\i s ,« ; seconded by —i,, Other persons present: AGAINST: FOR: FA Mick Ireland ❑ Mick Ireland Steve Skadron ❑ Steve Skadron 0 Adam Frisch ❑ Adam Frisch FX Torre ❑ Torre ® Derek Johnson El 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 (conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions. (c)Matters required to be kept confidential by federal or state law or rules and regulations. pecialized details of security arrangements or investigations, including defenses against terrorism, both domestic a oreign, 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; <f.(j-,YDetermmmg positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators; (f) ersonnel 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-client communication: The undersigned chair of the executive session attests that the discussions in this executive sessn were;limited to the topic(s)described in Section III, above. Adjourned at: 9�2�