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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
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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
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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
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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:
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Regular Meeting Aspen City Council October 22, 2012
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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
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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
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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
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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
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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
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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
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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
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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.
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Mayor Ireland moved to adjourn at 7:55 PM; seconded by Councilman Torre. All in favor,
motion carried.
Kathryn Koch
City Clerk
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Page 1 of 2
MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Finance Director
THRU: Click here to enter text.
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
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$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.
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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
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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
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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
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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
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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%
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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
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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
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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
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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
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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
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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%
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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%
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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.
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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
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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
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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,
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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
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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
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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:
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“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.
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“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.
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“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
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— 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
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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.
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“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.
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“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.”
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(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
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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
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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
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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:
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(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.
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(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.
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(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).
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(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.
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(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
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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,
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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.
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(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.
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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
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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
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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
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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.
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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
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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
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(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:
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(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
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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;
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(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
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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.
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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.
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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]
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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
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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
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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.
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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
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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:
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[STATEMENT OF INSURANCE]
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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
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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
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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,
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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
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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]
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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
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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:
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[STATEMENT OF INSURANCE]
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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:
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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
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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.
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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:
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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
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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
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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
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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
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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:
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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
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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:
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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
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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.
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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
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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:
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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.
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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
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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.
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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
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P394
IX.b
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P395
IX.b
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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
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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.
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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.
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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
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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�