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CITY COUNCIL AGENDA
December 02, 2013
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) Resolution #106, 2013 - Approval of Contract for Purchase of Real Property at
715 E. Hopkins (Units 3, 4 and 5)
b) Resolution #108, 2013 - Approving EOTC 2014 Budget
c) Resolution #109, 2013 - Final Design Contract Rubey Park Transit Center
d) Minutes - November 11, 2013
VII. First Reading of Ordinances
a) Ordinance#50, 2013 - Amending Composition of Wheeler Board
VIII. Public Hearings
a) Ordinance #49, 2013 - Mocklin Subdivision - Other Amendment
b) Resolution #107, 2013 - 110 E. Bleeker Street, Extension of Vested Rights
c) Ordinance #46, 2013 - 549 Race Alley, Estblishment of Transferable
Development Rights, TO BE RESCHEDULED
IX. Action Items
a) Direction to staff regarding construction and sale of single family homes Phase II
of Burlingame Ranch
b) 201 E. Hyman Avenue, Call-up notice regarding HPC approval
X. Executive Session - C.R.S. Section 24-6-402 (b) and (e), discussions with Counsel to receive
legal advice and to determine positions relative to litigation negotiations.
XI. Adjournment
Next Regular Meeting December 09, 2013
COUNCIL’S ADOPTED GUIDELINES
• Invite the Community to Participate with Us in Solution-Making
• Tone and Tenor Matter
• Remember Where We’re Living and Why We’re Here
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
1
MEMORANDUM
TO: Mayor and Council
FROM: R. Barry Crook, Assistant City Manager
DATE: November 25, 2013
MEETING DATE: December 2, 2013
RE: Contract for Purchase of property at 715 E. Hopkins
Resolution #106, Series of 2013
Summary
The subject properties are three studio condominiums that are part of the complex known as the
“Edge of Ajax”, located at 715 E. Hopkins. These units are #3, 4 and 5 and range from 417 to
428 square feet. One unit has a one-car garage associated with it, the other units have designated
uncovered parking spots. These units have time-limited deed restrictions associated with them
that require sub-category 1 rents of $402 and $412 per month (Category 1 studio rents are set at
$460 per month). The deed restrictions run until 2032. There are two free market units above the
deed-restricted units. The Ulrych estate has offered to sell the units for $103,000 per unit and a
contract for purchase has been prepared as per Council’s direction.
Previous Council Action:
These units have had a history of compliance issues associated with them and numerous
conversations have been held with Ulyrch representatives seeking to resolve compliance issues and
to offer to deal with what they term as claims of financial hardships imposed by the deed
restrictions. After the death of Mr. Ulyrch, the heirs contacted the city about purchasing the units
and an agreement has been reached to purchase them. This will enable the city to change the deed
restrictions and extend the restrictions permanently.
Discussion:
By purchasing the units we remove the contentious nature of the effort to enforce the deed
restrictions and remove the “end date” on those restrictions. It is our intention to make the center
unit with the attached garage a Cat 2 rental and retain the other two units as Cat 1 rental properties.
By owning the units and controlling the deed restrictions, should the two free market units impose
capital assessments that burden the city’s continued ownership we have the opportunity to either
cease renting the units and sell them under a deed restriction of our choosing, or eliminate the deed
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restriction and return the units to the free market – recovering the purchase price and infusing the
Housing Fund with money to produce other units.
Financial Implications:
The cost of the purchase is $309,000. We have budgeted an additional $75,000 in total to renovate
and repair the units as vacancies occur. Council has previously appropriated funds for these
purposes in the Fall Supplemental.
Staff Recomendation:
Approval of the purchase agreement
Request of Council:
Approve Resolution #106, Series 2013
Attachments:
Resolution #106, Series 2013
Contract to Buy and Sell Real Estate for 715 E. Hopkins, Units 3, 4 and 5
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RESOLUTION NO. 106
Series of 2013
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE PURCHASE
OF THE EDGE OF AJAX CONDOMINIUM UNITS 3, 4, 5 SUBJECT TO THE TERMS OF
THE CONTRACT TO BUY AND SELL REAL ESTATE AND AUTHORIZING THE
EXECUTION OF SUCH CONTRACT AND ALL OTHER DOCUMENTS NECESSARY TO
COMPLETE SUCH PURCHASE.
WHEREAS, pursuant to the Statement of Exception from the Full Subdivision Process for
the Purpose of Condominiumization for the Edge of Ajax Condominiums, Recorded in the Real
Property Records of Pitkin County in Book 427 at Page 864, the Edge of Ajax, Inc., was granted
certain land use approvals condition on entering deed restrictions regarding the three affordable
housing units to be built on the property; and
WHEREAS, a Declaration of Covenants, Restrictions and Conditions for the Edge of
Ajax Condominiums was recorded in the Real Property Records of Pitkin County, at Book 427 at
Page 866. The restrictions set forth therein are for a term of years ending in 2032; and
WHEREAS, given the terms of the declaration of covenants, described above, there
have arisen over the years conflict regarding the terms and restrictions set forth for such
affordable housing units; and,
WHEREAS, the current owner of the property wishes to sell the three affordable
housing units and the City of Aspen staff has recommended the purchase of the units pursuant to
the terms and conditions set forth in the attached contract; and
WHEREAS, it is in the best interests of the citizens of the City of Aspen to purchase the
three affordable housing units, Edge of Ajax Condominium Units 3, 4 and 5 subject to
appropriate inspections and due diligence as set forth in the attached contract.
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NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby approves the purchase of the purchase of
the Edge Of Ajax Condominium Units 3, 4, 5 subject to the terms of the Contract To Buy And
Sell Real Estate and authorizing the execution of such contract and all other documents necessary to
complete such purchase
Dated: _______________________________, 2013.
________________________________
Steve Skadron, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held ________________________, 2013.
______________________________
Kathryn S. Koch, City Clerk
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1
The printed portions of this form, except differentiated additions, have been approved by the Colorado Real Estate Commission. 2
(CBS1-9-12) (Mandatory 1-13) 3
4
THIS FORM HAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL AND TAX OR OTHER 5
COUNSEL BEFORE SIGNING. 6
CONTRACT TO BUY AND SELL REAL ESTATE 7
(RESIDENTIAL) 8
9
Date: 10
11
AGREEMENT
12
1. AGREEMENT. Buyer, identified in § 2.1, agrees to buy, and Seller, identified in § 2.3, agrees to sell, the Property 13
described below on the terms and conditions set forth in this contract (Contract). 14
2. PARTIES AND PROPERTY. 15
2.1. Buyer. Buyer, City of Aspen, will take title to the Property described below as Joint Tenants Tenants 16
In Common Other Owner. 17
2.2. Assignability and Inurement. This Contract Shall Shall Not be assignable by Buyer without Seller’s 18
prior written consent. Except as so restricted, this Contract shall inure to the benefit of and be binding upon the 19
heirs, personal representatives, successors and assigns of the parties. 20
2.3. Seller. Seller, Edge of Ajax, Inc., is the current owner of the Property described below. 21
2.4. Property. The Property is the following legally described real estate in the County of Pitkin, Colorado: 22
See Exhibit A, attached hereto 23
known as No. 24
715 E. Hopkins, Units 3, 4 and 5 Aspen CO 81611
Street Address City State Zip
together with the interests, easements, rights, benefits, improvements and attached fixtures appurtenant thereto, 25
and all interest of Seller in vacated streets and alleys adjacent thereto, except as herein excluded (Property). 26
2.5. Inclusions. The Purchase Price includes the following items (Inclusions): 27
28
2.5.1. Fixtures. If attached to the Property on the date of this Contract, the following items are included unless 29
excluded under Exclusions (§ 2.6): lighting, heating, plumbing, ventilating, and air conditioning fixtures, 30
TV antennas, inside telephone, network and coaxial (cable) wiring and connecting blocks/jacks, plants, 31
mirrors, floor coverings, intercom systems, built-in kitchen appliances, sprinkler systems and controls, 32
built-in vacuum systems (including accessories), garage door openers including no remote controls. 33
Other Fixtures: 34
If any fixtures are attached to the Property after the date of this Contract, such additional fixtures are 35
included in the Purchase Price. 36
2.5.2. Personal Property. If on the Property, whether attached or not, on the date of this Contract, the 37
following items are included unless excluded under Exclusions (§ 2.6): storm windows, storm doors, 38
window and porch shades, awnings, blinds, screens, window coverings, curtain rods, drapery rods, 39
fireplace inserts, fireplace screens, fireplace grates, heating stoves, storage sheds, and all keys. If checked, 40
the following are included: Water Softeners Smoke/Fire Detectors Carbon Monoxide 41
Alarms Security Systems Satellite Systems (including satellite dishes). 42
Other Personal Property: 43
The Personal Property to be conveyed at Closing will be conveyed by Seller free and clear of all taxes, 44
(except personal property taxes for the year of Closing), liens and encumbrances, except n/a. Conveyance 45
shall be by bill of sale or other applicable legal instrument. 46
2.5.3. Parking and Storage Facilities. Use Only Ownership of the following parking facilities: 47
Garage and 2 outdoor spaces; and Use Only Ownership of the following storage facilities: 48
. 49
2.5.4. Water Rights, Water and Sewer Taps. 50
2.5.4.1. Deeded Water Rights. The following legally described water rights: n/a 51
Any water rights shall be conveyed by Deed Other applicable legal instrument. 52
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2.5.4.2. Well Rights. If any water well is to be transferred to Buyer, Seller agrees to supply required 53
information about such well to Buyer. Buyer understands that if the well to be transferred is a 54
Small Capacity Well or a Domestic Exempt Water Well used for ordinary household purposes, 55
Buyer shall, prior to or at Closing, complete a Change in Ownership form for the well. If an 56
existing well has not been registered with the Colorado Division of Water Resources in the 57
Department of Natural Resources (Division), Buyer shall complete a registration of existing well 58
form for the well and pay the cost of registration. If no person will be providing a closing service 59
in connection with the transaction, Buyer shall file the form with the Division within sixty days 60
after Closing. The Well Permit # is n/a 61
2.5.4.3. Water Stock Certificates: n/a 62
2.5.4.4. Water Tap Sewer Tap 63
2.5.4.5. Other Rights: 64
2.6. Exclusions. The following items are excluded (Exclusions): Furniture, artwork, personal items 65
3. DATES AND DEADLINES. 66
67
Item No. Reference Event Date or Deadline
1 § 4.3.1 Alternative Earnest Money Deadline n/a
Title and Association
2 § 7.1 Record Title Deadline November 18, 2013
3 § 7.5 Exceptions Request Deadline November 18, 2013
4 § 8.1 Record Title Objection Deadline November 22, 2013
5 § 8.2 Off-Record Title Deadline November 18, 2013
6 § 8.2 Off-Record Title Objection Deadline November 22, 2013
7 § 8.3 Title Resolution Deadline November 27, 2013
8 § 7.6 Association Documents Deadline November 18, 2013
9 § 7.6 Association Documents Objection Deadline November 22, 2013
10 § 8.5 Right of First Refusal Deadline n/a
Seller’s Property Disclosure
11 § 10.1 Seller’s Property Disclosure Deadline November 18, 2013
Loan and Credit
12 § 5.1 Loan Application Deadline n/a
13 § 5.2 Loan Objection Deadline n/a
14 § 5.3 Buyer's Credit Information Deadline n/a
15 § 5.3 Disapproval of Buyer's Credit Information Deadline n/a
16 § 5.4 Existing Loan Documents Deadline n/a
17 § 5.4 Existing Loan Documents Objection Deadline n/a
18 § 5.4 Loan Transfer Approval Deadline n/a
Appraisal
19 § 6.2 Appraisal Deadline n/a
20 § 6.2 Appraisal Objection Deadline n/a
Survey
21 § 9.1 Current Survey Deadline n/a
22 § 9.2 Current Survey Objection Deadline n/a
Inspection and Due Diligence
23 § 10.2 Inspection Objection Deadline November 20, 2013
24 § 10.3 Inspection Resolution Deadline November 27, 2013
25 § 10.5 Property Insurance Objection Deadline n/a
26 § 10.6 Due Diligence Documents Delivery Deadline November 18, 2013
27 § 10.7.1 Due Diligence Documents Objection Deadline November 22, 2013
28 §10.8 Conditional Sale Deadline n/a
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Item No. Reference Event Date or Deadline
Closing and Possession
29 § 12.3 Closing Date December 3, 2013
30 § 17 Possession Date At closing
31 § 17 Possession Time At closing
32 § 28 Acceptance Deadline Date November 11, 2013
33 § 28 Acceptance Deadline Time 5:00 pm
Note: Applicability of Terms. Any box, blank or line in this Contract left blank or completed with the abbreviation “N/A”, 68
or the word “Deleted” means such provision in Dates and Deadlines (§ 3), including any deadline, is not applicable and the 69
corresponding provision of this Contract to which reference is made is deleted. 70
71
The abbreviation “MEC” (mutual execution of this Contract) means the date upon which both parties have signed this Contract. 72
73
Note: If FHA or VA loan boxes are checked in § 4.5.3 (Loan Limitations), the Appraisal Deadline (§ 3) does Not apply to 74
FHA insured or VA guaranteed loans. 75
76
4. PURCHASE PRICE AND TERMS. 77
4.1. Price and Terms. The Purchase Price set forth below shall be payable in U. S. Dollars by Buyer as follows: 78
79
Item No. Reference Item Amount Amount
1 § 4.1 Purchase Price $309,000
2 § 4.2 Earnest Money
3 § 4.5 New Loan $
4 § 4.6 Assumption Balance $
5 § 4.7 Seller or Private Financing $
6
7
8 § 4.3 Cash at Closing $
9 TOTAL $309,000 $309,000
80
4.2. Seller Concession. Seller, at Closing, shall credit, as directed by Buyer, an amount of $n/a to assist with any or all 81
of the following: Buyer’s closing costs, loan discount points, loan origination fees, prepaid items (including any 82
amounts that Seller agrees to pay because Buyer is not allowed to pay due to FHA, CHFA, VA, etc.), and any 83
other fee, cost, charge, expense or expenditure related to Buyer’s New Loan or other allowable Seller concession 84
(collectively, Seller Concession). Seller Concession is in addition to any sum Seller has agreed to pay or credit 85
Buyer elsewhere in this Contract. Seller Concession will be reduced to the extent it exceeds the aggregate of what 86
is allowed by Buyer’s lender as set forth in the Closing Statement, Closing Disclosure or HUD-1, at Closing. 87
4.3. Earnest Money. The Earnest Money set forth in this section, in the form of a personal or cashier’s check, in the 88
amount of $00 shall be payable to and held by ____________ Title Company (Earnest Money Holder), in its trust 89
account, on behalf of both Seller and Buyer. The Earnest Money deposit shall be tendered, by Buyer, with this 90
Contract unless the parties mutually agree to an Alternative Earnest Money Deadline (§ 3) for its payment. The 91
parties authorize delivery of the Earnest Money deposit to the company conducting the Closing (Closing 92
Company), if any, at or before Closing. In the event Earnest Money Holder has agreed to have interest on Earnest 93
Money deposits transferred to a fund established for the purpose of providing affordable housing to Colorado 94
residents, Seller and Buyer acknowledge and agree that any interest accruing on the Earnest Money deposited with 95
the Earnest Money Holder in this transaction shall be transferred to such fund. 96
4.3.1. Alternative Earnest Money Deadline. The deadline for delivering the Earnest Money, if other than at 97
the time of tender of this Contract is as set forth as the Alternative Earnest Money Deadline (§ 3). 98
4.3.2. Return of Earnest Money. If Buyer has a Right to Terminate and timely terminates, Buyer shall be 99
entitled to the return of Earnest Money as provided in this Contract. If this Contract is terminated as set 100
forth in § 25 and, except as provided in § 24, if the Earnest Money has not already been returned 101
following receipt of a Notice to Terminate, Seller agrees to execute and return to Buyer or Broker 102
working with Buyer, written mutual instructions, i.e. Earnest Money Release form, within three days of 103
Seller’s receipt of such form. 104
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4.4. Form of Funds; Time of Payment; Funds Available. 105
4.4.1 Good Funds. All amounts payable by the parties at Closing, including any loan proceeds, Cash at 106
Closing and closing costs, shall be in funds that comply with all applicable Colorado laws, including 107
electronic transfer funds, certified check, savings and loan teller's check and cashier's check (Good 108
Funds). 109
4.4.2. Available Funds. All funds required to be paid at Closing or as otherwise agreed in writing between the 110
parties shall be timely paid to allow disbursement by Closing Company at Closing OR SUCH PARTY 111
SHALL BE IN DEFAULT. Buyer represents that Buyer, as of the date of this Contract, Does 112
Does Not have funds that are immediately verifiable and available in an amount not less than the amount 113
stated as Cash at Closing in § 4.1. 114
4.5. New Loan. 115
4.5.1. Buyer to Pay Loan Costs. Buyer, except as provided in § 4.4, if applicable, shall timely pay Buyer's 116
loan costs, loan discount points, prepaid items and loan origination fees, as required by lender. 117
4.5.2. Buyer May Select Financing. Buyer may pay in cash or select financing appropriate and acceptable to 118
Buyer, including a different loan than initially sought, except as restricted in § 4.5.3 or § 30 (Additional 119
Provisions). 120
4.5.3. Loan Limitations. Buyer may purchase the Property using any of the following types of loan: 121
Conventional FHA VA Bond Other Rural Development, Private Lending, 122
In-House Lending 123
4.5.4. Good Faith Estimate – Monthly Payment and Loan Costs. Buyer is advised to review the terms, 124
conditions and costs of Buyer's New Loan carefully. If Buyer is applying for a residential loan, the lender 125
generally must provide Buyer with a good faith estimate of Buyer's closing costs within three days after 126
Buyer completes a loan application. Buyer should also obtain an estimate of the amount of Buyer's 127
monthly mortgage payment. If the New Loan is unsatisfactory to Buyer, Buyer has the Right to 128
Terminate under § 25.1, on or before Loan Objection Deadline (§ 3). 129
4.6. Assumption. Buyer agrees to assume and pay an existing loan in the approximate amount of the Assumption 130
Balance set forth in § 4.1, presently payable at $ n/a per n/a including principal and interest presently at the rate 131
of n/a% per annum, and also including escrow for the following as indicated: Real Estate Taxes 132
Property Insurance Premium Mortgage Insurance Premium and n/a. Buyer agrees to pay a 133
loan transfer fee not to exceed $n/a. At the time of assumption, the new interest rate shall not exceed n/a % per 134
annum and the new payment will not exceed $ n/a per principal and interest, plus escrow, if any. If the 135
actual principal balance of the existing loan at Closing is less than the Assumption Balance, which causes the 136
amount of cash required from Buyer at Closing to be increased by more than $ , then Buyer has the Right to 137
Terminate under § 25.1, on or before Closing Date (§ 3), based on the reduced amount of actual principal balance. 138
Seller Shall Shall Not be released from liability on said loan. If applicable, compliance with the 139
requirements for release from liability shall be evidenced by delivery on or before Loan Transfer Approval 140
Deadline (§3) at Closing of an appropriate letter of commitment from lender. Any cost payable for release of 141
liability shall be paid by in an amount not to exceed $ . 142
4.7. Seller or Private Financing. Buyer agrees to execute a promissory note payable to as Joint Tenants 143
Tenants in Common Other: , on the note form as indicated: (Default Rate) NTD81-10-06 144
Other secured by a (1st, 2nd, etc.) deed of trust encumbering the Property, using the form as 145
indicated: Due on Transfer-Strict (TD72-8-10) Due on Transfer-Creditworthy (TD73-8-10) 146
Assumable-Not Due on Transfer (TD74-8-10) Other . The promissory note will be amortized on 147
the basis of Years Months, payable at $ per including principal and interest at the 148
rate of % per annum. Payments will commence and will be due on the day of each 149
succeeding . If not sooner paid, the balance of principal and accrued interest will be due and payable 150
after Closing. Payments Shall Shall Not be increased by of estimated annual real estate 151
taxes, and Shall Shall Not be increased by of estimated annual property insurance premium. The 152
loan shall also contain the following terms: (1) if any payment is not received within days after its due date, 153
a late charge of % of such payment shall be due; (2) interest on lender disbursements under the deed of trust 154
shall be % per annum; (3) default interest rate shall be % per annum; (4) Buyer may prepay without 155
a penalty except ; and (5) Buyer Shall Shall Not execute and deliver, at Closing, a Security 156
Agreement and UCC-1 Financing Statement granting the holder of the promissory note a (1st,2nd, etc.) lien 157
on the personal property included in this sale. 158
Buyer Shall Shall Not provide a mortgagee’s title insurance policy, at Buyer’s expense. 159
160
Transaction Provisions
161
5. FINANCING CONDITIONS AND OBLIGATIONS. 162
5.1. Loan Application. If Buyer is to pay all or part of the Purchase Price by obtaining one or more new loans (New 163
Loan), or if an existing loan is not to be released at Closing, Buyer, if required by such lender, shall make an 164
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application verifiable by such lender, on or before Loan Application Deadline (§ 3) and exercise reasonable 165
efforts to obtain such loan or approval. 166
5.2. Loan Objection. If Buyer is to pay all or part of the Purchase Price with a New Loan, this Contract is conditional 167
upon Buyer determining, in Buyer's sole subjective discretion, whether the New Loan is satisfactory to Buyer, 168
including its availability, payments, interest rate, terms, conditions, and cost of such New Loan. This condition is 169
for the sole benefit of Buyer. Buyer has the Right to Terminate under § 25.1, on or before Loan Objection 170
Deadline (§ 3), if the New Loan is not satisfactory to Buyer, in Buyer’s sole subjective discretion. IF SELLER 171
DOES NOT TIMELY RECEIVE WRITTEN NOTICE TO TERMINATE, BUYER'S EARNEST MONEY 172
SHALL BE NONREFUNDABLE, except as otherwise provided in this Contract (e.g., Appraisal, Title, Survey). 173
5.3. Credit Information and Buyer's New Senior Loan. [Omitted as inapplicable] 174
5.4. Existing Loan Review. [Omitted as inapplicable] 175
6. APPRAISAL PROVISIONS. 176
6.1. Lender Property Requirements. If the lender imposes any requirements or repairs (Requirements) to be made to 177
the Property (e.g., roof repair, repainting), beyond those matters already agreed to by Seller in this Contract, Seller 178
has the Right to Terminate under § 25.1, (notwithstanding § 10 of this Contract), on or before three days following 179
Seller’s receipt of the Requirements, based on any unsatisfactory Requirements, in Seller’s sole subjective 180
discretion. Seller’s Right to Terminate in this § 6.1 shall not apply if, on or before any termination by Seller 181
pursuant to this § 6.1: (1) the parties enter into a written agreement regarding the Requirements; or (2) the 182
Requirements have been completed; or (3) the satisfaction of the Requirements is waived in writing by Buyer. 183
6.2. Appraisal Condition. The applicable Appraisal provision set forth below shall apply to the respective loan type 184
set forth in § 4.5.3, or if a cash transaction, i.e. no financing, § 6.2.1 will apply. 185
6.2.1. Conventional/Other. Buyer shall have the sole option and election to terminate this Contract if the 186
Property’s valuation, determined by an appraiser engaged on behalf of the Lender is less than the 187
Purchase Price. The appraisal shall be received by Buyer or Buyer’s lender on or before Appraisal 188
Deadline (§ 3). Buyer has the Right to Terminate under § 25.1, on or before Appraisal Objection 189
Deadline (§ 3), if the Property’s valuation is less than the Purchase Price and Seller’s receipt of either a 190
copy of such appraisal or written notice from lender that confirms the Property’s valuation is less than the 191
Purchase Price. This § 6.2.1 is for the sole benefit of the Buyer. 192
6.2.2. FHA. It is expressly agreed that, notwithstanding any other provisions of this Contract, the Purchaser 193
(Buyer) shall not be obligated to complete the purchase of the Property described herein or to incur any 194
penalty by forfeiture of Earnest Money deposits or otherwise unless the Purchaser (Buyer) has been given 195
in accordance with HUD/FHA or VA requirements a written statement issued by the Federal Housing 196
Commissioner, Department of Veterans Affairs, or a Direct Endorsement lender, setting forth the 197
appraised value of the Property of not less than $n/a. The Purchaser (Buyer) shall have the privilege and 198
option of proceeding with the consummation of this Contract without regard to the amount of the 199
appraised valuation. The appraised valuation is arrived at to determine the maximum mortgage the 200
Department of Housing and Urban Development will insure. HUD does not warrant the value nor the 201
condition of the Property. The Purchaser (Buyer) should satisfy himself/herself that the price and 202
condition of the Property are acceptable. 203
6.2.3. VA. It is expressly agreed that, notwithstanding any other provisions of this Contract, the purchaser 204
(Buyer) shall not incur any penalty by forfeiture of Earnest Money or otherwise or be obligated to 205
complete the purchase of the Property described herein, if the Contract Purchase Price or cost exceeds the 206
reasonable value of the Property established by the Department of Veterans Affairs. The purchaser 207
(Buyer) shall, however, have the privilege and option of proceeding with the consummation of this 208
Contract without regard to the amount of the reasonable value established by the Department of Veterans 209
Affairs. 210
6.3. Cost of Appraisal. Cost of any appraisal to be obtained after the date of this Contract will be timely paid by 211
Buyer Seller. The cost of the appraisal may include any or all fees paid to the appraiser, appraisal 212
management company, lender’s agent or all three. 213
7. EVIDENCE OF TITLE AND ASSOCIATION DOCUMENTS. 214
7.1. Seller Selects Title Insurance Company. If this box is checked, Seller shall select the title insurance 215
company to furnish the owner’s title insurance policy at Seller’s expense. On or before Record Title Deadline (§ 216
3), Seller shall furnish to Buyer, a current commitment for owner's title insurance policy (Title Commitment), in 217
an amount equal to the Purchase Price, or if this box is checked, an Abstract of title certified to a current date. 218
Seller shall cause the title insurance policy to be issued and delivered to Buyer as soon as practicable at or after 219
Closing. 220
7.2. Buyer Selects Title Insurance Company. If this box is checked, Buyer shall select the title insurance 221
company to furnish the owner’s title insurance policy at Buyer’s expense. On or before Record Title Deadline (§ 222
3), Buyer shall furnish to Seller, a current commitment for owner’s title insurance policy (Title Commitment), in 223
an amount equal to the Purchase Price. 224
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If neither box in § 7.1 or § 7.2 is checked, § 7.1 applies. 225
7.3. Owner’s Extended Coverage (OEC). The Title Commitment Shall Shall Not commit to delete or 226
insure over the standard exceptions which relate to: (1) parties in possession, (2) unrecorded easements, (3) survey 227
matters, (4) unrecorded mechanics’ liens, (5) gap period (effective date of commitment to date deed is recorded), 228
and (6) unpaid taxes, assessments and unredeemed tax sales prior to the year of Closing. (OEC). 229
Note: The title insurance company may not agree to delete or insure over any or all of the standard exceptions. 230
7.3.1. Premium for OEC. If the title insurance company agrees to provide an endorsement for OEC, any 231
additional premium expense to obtain an endorsement for OEC shall be paid by Buyer Seller 232
One-Half by Buyer and One-Half by Seller Other . 233
7.4. Buyer’s Right to Review the Title Commitment and Title Documents. Buyer has the right to review the Title 234
Commitment, its provisions and Title Documents (defined in § 7.5), and if not satisfactory to Buyer, Buyer may 235
exercise Buyer’s rights pursuant to § 8.1. 236
7.5. Copies of Exceptions. Unless the box in § 7.2 is checked (Buyer Selects Title Insurance Company) on or before 237
Record Title Deadline (§ 3), Seller, at Seller's expense, shall furnish to Buyer and n/a, the following: (1) copies 238
of any plats, declarations, covenants, conditions and restrictions burdening the Property, and (2) if a Title 239
Commitment is required to be furnished, and if this box is checked Copies of any Other Documents (or, if 240
illegible, summaries of such documents) listed in the schedule of exceptions (Exceptions). Even if the box is not 241
checked, Seller has the obligation to furnish these documents pursuant to this section if requested by Buyer any 242
time on or before Exceptions Request Deadline (§ 3). This requirement shall pertain only to documents as shown 243
of record in the office of the clerk and recorder in the county where the Property is located. The Abstract or Title 244
Commitment, together with any copies or summaries of such documents furnished pursuant to this section, 245
constitute the title documents (collectively, Title Documents). 246
7.5.1. Existing Abstracts of Title. Seller shall deliver to Buyer copies of any abstracts of title covering all or 247
any portion of the Property (Abstract) in Seller’s possession on or before Record Title Deadline (§ 3). 248
7.6. Homeowners’ Association Documents. Homeowners’ Association Documents (Association Documents) consist 249
of the following: 250
7.6.1. All Homeowners’ Association declarations, bylaws, operating agreements, rules and regulations, party 251
wall agreements; 252
7.6.2. Minutes of most recent annual owners’ meeting; 253
7.6.3. Minutes of any directors’ or managers’ meetings during the six-month period immediately preceding the 254
date of this Contract. If none of the preceding minutes exist, then the most recent minutes, if any; (§§ 255
7.6.1, 7.6.2 and 7.6.3, collectively, Governing Documents). 256
7.6.4. The most recent financial documents which consist of: consisting of: (1) annual and most recent balance 257
sheet, (2) annual and most recent income and expenditures statement, (3) annual budget, and (4) reserve 258
study, if any (collectively, Financial Documents). 259
7.6.5. Common Interest Community Disclosure. THE PROPERTY IS LOCATED WITHIN A 260
COMMON INTEREST COMMUNITY AND IS SUBJECT TO THE DECLARATION FOR 261
SUCH COMMUNITY. THE OWNER OF THE PROPERTY WILL BE REQUIRED TO BE A 262
MEMBER OF THE OWNER’S ASSOCIATION FOR THE COMMUNITY AND WILL BE 263
SUBJECT TO THE BYLAWS AND RULES AND REGULATIONS OF THE ASSOCIATION. 264
THE DECLARATION, BYLAWS, AND RULES AND REGULATIONS WILL IMPOSE 265
FINANCIAL OBLIGATIONS UPON THE OWNER OF THE PROPERTY, INCLUDING AN 266
OBLIGATION TO PAY ASSESSMENTS OF THE ASSOCIATION. IF THE OWNER DOES 267
NOT PAY THESE ASSESSMENTS, THE ASSOCIATION COULD PLACE A LIEN ON THE 268
PROPERTY AND POSSIBLY SELL IT TO PAY THE DEBT. THE DECLARATION, BYLAWS, 269
AND RULES AND REGULATIONS OF THE COMMUNITY MAY PROHIBIT THE OWNER 270
FROM MAKING CHANGES TO THE PROPERTY WITHOUT AN ARCHITECTURAL 271
REVIEW BY THE ASSOCIATION (OR A COMMITTEE OF THE ASSOCIATION) AND THE 272
APPROVAL OF THE ASSOCIATION. PURCHASERS OF PROPERTY WITHIN THE 273
COMMON INTEREST COMMUNITY SHOULD INVESTIGATE THE FINANCIAL 274
OBLIGATIONS OF MEMBERS OF THE ASSOCIATION. PURCHASERS SHOULD 275
CAREFULLY READ THE DECLARATION FOR THE COMMUNITY AND THE BYLAWS 276
AND RULES AND REGULATIONS OF THE ASSOCIATION. 277
7.6.6. Association Documents to Buyer. 278
7.6.6.1. Seller to Provide Association Documents. Seller shall cause the Association Documents to 279
be provided to Buyer, at Seller’s expense, on or before Association Documents Deadline (§ 3). 280
7.6.6.2. Seller Authorizes Association. Seller authorizes the Association to provide the Association 281
Documents to Buyer, at Seller’s expense. 282
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7.6.6.3. Seller’s Obligation. Seller’s obligation to provide the Association Documents shall be fulfilled 283
upon Buyer’s receipt of the Association Documents, regardless of who provides such 284
documents. 285
Note: If neither box in this § 7. 6. 6 is checked, the provisions of § 7. 6. 6.1 shall apply. 286
7.6.7. Conditional on Buyer’s Review. Buyer has the right to review the Association Documents. Buyer has 287
the Right to Terminate under § 25.1, on or before Association Documents Objection Deadline (§ 3), 288
based on any unsatisfactory provision in any of the Association Documents, in Buyer’s sole subjective 289
discretion. Should Buyer receive the Association Documents after Association Documents Deadline (§ 290
3), Buyer, at Buyer’s option, has the Right to Terminate under § 25.1 by Buyer’s Notice to Terminate 291
received by Seller on or before ten days after Buyer’s receipt of the Association Documents. If Buyer 292
does not receive the Association Documents, or if Buyer’s Notice to Terminate would otherwise be 293
required to be received by Seller after Closing Date (§ 3), Buyer’s Notice to Terminate shall be received 294
by Seller on or before Closing (§ 12.3). If Seller does not receive Buyer’s Notice to Terminate within 295
such time, Buyer accepts the provisions of the Association Documents as satisfactory, and Buyer waives 296
any Right to Terminate under this provision, notwithstanding the provisions of § 8.5. 297
8. RECORD TITLE AND OFF-RECORD TITLE. 298
8.1. Record Title. Buyer has the right to review and object to any of the Title Documents (Right to Object, 299
Resolution) as set forth in § 8.3. Buyer’s objection may be based on any unsatisfactory form or content of Title 300
Commitment, notwithstanding § 13, or any other unsatisfactory title condition, in Buyer’s sole subjective 301
discretion. If Buyer objects to any of the Title Documents, Buyer shall cause Seller to receive Buyer’s Notice to 302
Terminate or Notice of Title Objection on or before Record Title Objection Deadline (§ 3). If Title Documents 303
are not received by Buyer, on or before the Record Title Deadline (§ 3), or if there is an endorsement to the Title 304
Commitment that adds a new Exception to title, a copy of the new Exception to title and the modified Title 305
Commitment shall be delivered to Buyer. Buyer shall cause Seller to receive Buyer’s Notice to Terminate or 306
Notice of Title Objection on or before ten days after receipt by Buyer of the following documents: (1) any required 307
Title Document not timely received by Buyer, (2) any change to the Title Documents, or (3) endorsement to the 308
Title Commitment. If Seller receives Buyer’s Notice to Terminate or Notice of Title Objection, pursuant to this § 309
8.1 (Record Title), any title objection by Buyer and this Contract shall be governed by the provisions set forth in § 310
8.3 (Right to Object to Title, Resolution). If Seller does not receive Buyer’s Notice to Terminate or Notice of Title 311
Objection by the applicable deadline specified above, Buyer accepts the condition of title as disclosed by the Title 312
Documents as satisfactory. 313
8.2. Off-Record Title. Seller will deliver to Buyer, on or before Off-Record Title Deadline (§ 3), true copies of all 314
existing surveys in Seller’s possession pertaining to the Property and shall disclose to Buyer all easements, liens 315
(including, without limitation, governmental improvements approved, but not yet installed) or other title matters 316
(including, without limitation, rights of first refusal and options) not shown by public records, of which Seller has 317
actual knowledge (Off-Record Matters). Buyer has the right to inspect the Property to investigate if any third 318
party has any right in the Property not shown by public records (such as an unrecorded easement, unrecorded 319
lease, boundary line discrepancy or water rights). Buyer’s Notice to Terminate or Notice of Title Objection of any 320
unsatisfactory condition (whether disclosed by Seller or revealed by such inspection, notwithstanding § 13), in 321
Buyer’s sole subjective discretion, shall be received by Seller on or before Off-Record Title Objection Deadline 322
(§ 3). If Seller receives Buyer’s Notice to Terminate or Notice of Title Objection pursuant to this § 8.2 (Off-323
Record Title Matters), any title objection by Buyer and this Contract shall be governed by the provisions set forth 324
in § 8.3 (Right to Object, Resolution). If Seller does not receive Buyer’s Notice to Terminate or Notice of Title 325
Objection, on or before Off-Record Title Objection Deadline (§ 3), Buyer accepts title subject to such rights, if 326
any, of third parties of which Buyer has actual knowledge. Unless disclosed in writing, Seller represents and 327
warrants that there are no Off-Record Matters. 328
8.3. Right to Object to Title, Resolution. Buyer’s right to object to any title matters shall include, but not be limited 329
to those matters set forth in §§ 8.1 (Record Title Matters), 8.2 (Off-Record Title Matters), and 13 (Transfer of 330
Title), in Buyer’s sole subjective discretion (collectively, Notice of Title Objection). If Buyer objects to any title 331
matter, on or before the applicable deadline, Buyer shall have the option to either (1) object to the condition of 332
title, or (2) terminate this Contract. 333
8.3.1. Title Resolution. If Seller receives Buyer’s Notice of Title Objection, as provided in § 8.1 (Record Title) 334
or § 8.2 (Off-Record Title ), on or before the applicable deadline, and if Buyer and Seller have not agreed 335
to a written settlement thereof on or before Title Resolution Deadline (§ 3), this Contract shall terminate 336
on the expiration of Title Resolution Deadline (§ 3), unless Seller receives Buyer’s written withdrawal 337
of Buyer’s Notice of Title Objection (i.e., Buyer’s written notice to waive objection to such items and 338
waives the Right to Terminate for that reason), on or before expiration of Title Resolution Deadline (§ 339
3). 340
8.3.2. Right to Terminate – Title Objection. Buyer has the Right to Terminate under § 25.1, on or before the 341
applicable deadline, based on any unsatisfactory title matter, in Buyer’s sole subjective discretion. 342
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8.4. Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL 343
OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL TAX 344
LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN 345
SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND TAX TO 346
SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN 347
THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH 348
AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE THE SPECIAL TAXING 349
DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY CONTACTING THE COUNTY 350
TREASURER, BY REVIEWING THE CERTIFICATE OF TAXES DUE FOR THE PROPERTY, AND 351
BY OBTAINING FURTHER INFORMATION FROM THE BOARD OF COUNTY COMMISSIONERS, 352
THE COUNTY CLERK AND RECORDER, OR THE COUNTY ASSESSOR. 353
Buyer has the Right to Terminate under § 25.1, on or before Off-Record Title Objection Deadline (§ 3), based 354
on any unsatisfactory effect of the Property being located within a special taxing district, in Buyer’s sole 355
subjective discretion. 356
8.5. Right of First Refusal or Contract Approval. If there is a right of first refusal on the Property, or a right to 357
approve this Contract, Seller shall promptly submit this Contract according to the terms and conditions of such 358
right. If the holder of the right of first refusal exercises such right or the holder of a right to approve disapproves 359
this Contract, this Contract shall terminate. If the right of first refusal is waived explicitly or expires, or the 360
Contract is approved, this Contract shall remain in full force and effect. Seller shall promptly notify Buyer in 361
writing of the foregoing. If expiration or waiver of the right of first refusal or Contract approval has not occurred 362
on or before Right of First Refusal Deadline (§ 3), this Contract shall then terminate. 363
8.6. Title Advisory. The Title Documents affect the title, ownership and use of the Property and should be reviewed 364
carefully. Additionally, other matters not reflected in the Title Documents may affect the title, ownership and use 365
of the Property, including, without limitation, boundary lines and encroachments, area, zoning, unrecorded 366
easements and claims of easements, leases and other unrecorded agreements, and various laws and governmental 367
regulations concerning land use, development and environmental matters. The surface estate may be owned 368
separately from the underlying mineral estate, and transfer of the surface estate does not necessarily 369
include transfer of the mineral rights or water rights. Third parties may hold interests in oil, gas, other 370
minerals, geothermal energy or water on or under the Property, which interests may give them rights to 371
enter and use the Property. Such matters may be excluded from or not covered by the title insurance policy. 372
Buyer is advised to timely consult legal counsel with respect to all such matters as there are strict time limits 373
provided in this Contract [e.g., Record Title Objection Deadline (§ 3) and Off-Record Title Objection 374
Deadline (§ 3)]. 375
9. CURRENT SURVEY REVIEW. 376
9.1. Current Survey Conditions. If the box in § 9.1.1 or § 9.1.2 is checked, Buyer, the issuer of the Title 377
Commitment or the provider of the opinion of title if an Abstract, and n/a shall receive a Current Survey, i.e., 378
Improvement Location Certificate, Improvement Survey Plat or other form of survey set forth in § 9.1.2 379
(collectively, Current Survey), on or before Current Survey Deadline (§ 3). The Current Survey shall be 380
certified by the surveyor to all those who are to receive the Current Survey. 381
9.1.1. Improvement Location Certificate. If the box in this § 9.1.1 is checked, Seller Buyer shall 382
order or provide, and pay, on or before Closing, the cost of an Improvement Location Certificate. 383
9.1.2. Other Survey. If the box in this § 9.1.2 is checked, a Current Survey, other than an Improvement 384
Location Certificate, shall be an Improvement Survey Plat . The parties agree that 385
payment of the cost of the Current Survey and obligation to order or provide the Current Survey shall be 386
as follows: n/a 387
9.2. Current Survey Objection. Buyer has the right to review and object to the Current Survey. Buyer has the Right 388
to Terminate under § 25.1, on or before the Current Survey Objection Deadline (§ 3), if the Current Survey is 389
not timely received by Buyer or based on any unsatisfactory matter with the Current Survey, notwithstanding § 8.2 390
or § 13. 391
392
DISCLOSURE, INSPECTION AND DUE DILIGENCE
393
10. PROPERTY DISCLOSURE, INSPECTION, INDEMNITY, INSURABILITY, DUE DILIGENCE, BUYER 394
DISCLOSURE AND SOURCE OF WATER. 395
10.1. Seller's Property Disclosure. On or before Seller's Property Disclosure Deadline (§ 3), Seller agrees to deliver 396
to Buyer the most current version of the applicable Colorado Real Estate Commission's Seller's Property 397
Disclosure form completed by Seller to Seller's actual knowledge, current as of the date of this Contract. 398
10.2. Inspection Objection. Unless otherwise provided in this Contract, Buyer acknowledges that Seller is conveying 399
the Property to Buyer in an “as is” condition, “where is” and “with all faults”. Seller shall disclose to Buyer, in 400
writing, any latent defects actually known by Seller. Buyer, acting in good faith, has the right to have inspections 401
(by one or more third parties, personally or both) of the Property and Inclusions (Inspection), at Buyer’s expense. 402
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If (1) the physical condition of the Property, including, but not limited to, the roof, walls, structural integrity of the 403
Property, the electrical, plumbing, HVAC and other mechanical systems of the Property, (2) the physical condition 404
of the Inclusions, (3) service to the Property (including utilities and communication services), systems and 405
components of the Property, e.g. heating and plumbing, (4) any proposed or existing transportation project, road, 406
street or highway, or (5) any other activity, odor or noise (whether on or off the Property) and its effect or expected 407
effect on the Property or its occupants is unsatisfactory, in Buyer’s sole subjective discretion, Buyer shall, on or 408
before Inspection Objection Deadline (§ 3): 409
10.2.1. Notice to Terminate. Notify Seller in writing that this Contract is terminated; or 410
10.2.2. Inspection Objection. Deliver to Seller a written description of any unsatisfactory physical condition 411
that Buyer requires Seller to correct. 412
Buyer has the Right to Terminate under § 25.1, on or before Inspection Objection Deadline (§ 3) if the 413
Property or Inclusions are unsatisfactory, in Buyer’s sole subjective discretion. 414
10.3. Inspection Resolution. If an Inspection Objection is received by Seller, on or before Inspection Objection 415
Deadline (§ 3), and if Buyer and Seller have not agreed in writing to a settlement thereof on or before Inspection 416
Resolution Deadline (§ 3), this Contract will terminate on Inspection Resolution Deadline (§ 3), unless Seller 417
receives Buyer’s written withdrawal of the Inspection Objection before such termination, i.e., on or before 418
expiration of Inspection Resolution Deadline (§ 3). 419
10.4. Damage, Liens and Indemnity. Buyer, except as otherwise provided in this Contract or other written agreement 420
between the parties, is responsible for payment for all inspections, tests, surveys, engineering reports, or other 421
reports performed at Buyer's request (Work) and shall pay for any damage that occurs to the Property and 422
Inclusions as a result of such Work. Buyer shall not permit claims or liens of any kind against the Property for 423
Work performed on the Property at Buyer's request. Buyer agrees to indemnify, protect and hold Seller harmless 424
from and against any liability, damage, cost or expense incurred by Seller and caused by any such Work, claim, or 425
lien. This indemnity includes Seller's right to recover all costs and expenses incurred by Seller to defend against 426
any such liability, damage, cost or expense, or to enforce this section, including Seller's reasonable attorney fees, 427
legal fees, and expenses. The provisions of this section shall survive the termination of this Contract. This § 10.4 428
does not apply to items performed pursuant to an Inspection Resolution. 429
10.5. Insurability. Buyer has the right to review and object to the availability, terms and conditions of and premium for 430
property insurance (Property Insurance). Buyer has the Right to Terminate under § 25.1, on or before Property 431
Insurance Objection Deadline (§ 3), based on any unsatisfactory provision of the Property Insurance, in Buyer’s 432
sole subjective discretion. 433
10.6. Due Diligence Documents. Seller agrees to deliver copies of the following documents and information pertaining 434
to the Property (Due Diligence Documents) to Buyer on or before Due Diligence Documents Delivery Deadline 435
(§ 3): 436
10.6.1. All current licenses, including any amendments or other occupancy agreements, pertaining to the 437
Property, if any (Leases). 438
10.6.2. Other documents and information: 439
10.7. Due Diligence Documents Conditions. Buyer shall have the right to review and object to Due Diligence 440
Documents, in Buyer’s sole subjective discretion, and has the right to object if Seller fails to deliver to Buyer all 441
Due Diligence Documents. Buyer shall also have the unilateral right to waive any condition herein. 442
10.7.1. Due Diligence Documents Objection. Buyer has the Right to Terminate under § 25.1, on or before Due 443
Diligence Documents Objection Deadline (§ 3), based on any unsatisfactory matter with the Due 444
Diligence Documents, in Buyer’s sole subjective discretion. If all Due Diligence Documents under § 445
10.6 are not received by Buyer on or before the earlier of ten days after Due Diligence Documents 446
Objection Deadline (§ 3) or Closing. 447
10.8 Conditional Upon Sale of Property. This Contract is conditional upon the sale and closing of that certain 448
property owned by Buyer and commonly known as n/a. Buyer, has the Right to Terminate under § 25.1 effective 449
upon Seller's receipt of Buyer’s Notice to Terminate on or before Conditional Sale Deadline (§ 3) if such 450
property is not sold and closed by such deadline. This § 10.8 is for the sole benefit of Buyer. If Seller does not 451
receive Buyer’s Notice to Terminate on or before Conditional Sale Deadline (§ 3), Buyer waives any Right to 452
Terminate under this provision. 453
10.9. Source of Potable Water (Residential Land and Residential Improvements Only). Buyer Does Does 454
Not acknowledge receipt of a copy of Seller's Property Disclosure or Source of Water Addendum disclosing the 455
source of potable water for the Property. Buyer Does Does Not acknowledge receipt of a copy of the 456
current well permit. There is No Well. 457
Note to Buyer: SOME WATER PROVIDERS RELY, TO VARYING DEGREES, ON NONRENEWABLE 458
GROUND WATER. YOU MAY WISH TO CONTACT YOUR PROVIDER (OR INVESTIGATE THE 459
DESCRIBED SOURCE) TO DETERMINE THE LONG-TERM SUFFICIENCY OF THE PROVIDER'S 460
WATER SUPPLIES. 461
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10.10. Carbon Monoxide Alarms. Note: If the improvements on the Property have a fuel-fired heater or appliance, a 462
fireplace, or an attached garage and include one or more rooms lawfully used for sleeping purposes (Bedroom), the 463
parties acknowledge that Colorado law requires that Seller assure the Property has an operational carbon monoxide 464
alarm installed within fifteen feet of the entrance to each Bedroom or in a location as required by the applicable 465
building code. 466
10.11. Lead-Based Paint. Unless exempt, if the improvements on the Property include one or more residential 467
dwellings for which a building permit was issued prior to January 1, 1978, this Contract will be void unless (1) a 468
completed Lead-Based Paint Disclosure (Sales) form is signed by Seller, the required real estate licensees and 469
Buyer; and (2) Seller receives the completed and fully executed form prior to the time when this Contact is signed 470
by all parties. Buyer acknowledges timely receipt of a completed Lead-Based Paint Disclosure (Sales) form 471
signed by Seller and the real estate licensees. 472
10.12. Methamphetamine Disclosure. If Seller knows that methamphetamine was ever manufactured, processed, 473
cooked, disposed of, used or stored at the Property, Seller is required to disclose such fact. No disclosure is 474
required if the Property was remediated in accordance with state standards and other requirements are fulfilled 475
pursuant to § 25-18.5-102, C.R.S. Buyer further acknowledges that Buyer has the right to engage a certified 476
hygienist or industrial hygienist to test whether the Property has ever been used as a methamphetamine laboratory. 477
Buyer has the Right to Terminate under § 25.1, upon Seller’s receipt of Buyer’s written Notice to Terminate, 478
notwithstanding any other provision of this Contract, based on Buyer’s test results that indicate the Property has 479
been contaminated with methamphetamine, but has not been remediated to meet the standards established by rules 480
of the State Board of Health promulgated pursuant to § 25-18.5-102, C.R.S. Buyer shall promptly give written 481
notice to Seller of the results of the test. 482
11. COLORADO FORECLOSURE PROTECTION ACT. The Colorado Foreclosure Protection Act (Act) generally 483
applies if: (1) the Property is residential, (2) Seller resides in the Property as Seller's principal residence, (3) Buyer's 484
purpose in purchase of the Property is not to use the Property as Buyer's personal residence, and (4) the Property is in 485
foreclosure or Buyer has notice that any loan secured by the Property is at least thirty days delinquent or in default. If the 486
transaction is a Short Sale transaction and a Short Sale Addendum is part of this Contract, the Act does not apply. Each 487
party is further advised to consult an attorney. 488
489
CLOSING PROVISIONS
490
12. CLOSING DOCUMENTS, INSTRUCTIONS AND CLOSING. 491
12.1. Closing Documents and Closing Information. Seller and Buyer shall cooperate with the Closing Company to 492
enable the Closing Company to prepare and deliver documents required for Closing to Buyer and Seller and their 493
designees. If Buyer is obtaining a new loan to purchase the Property, Buyer acknowledges Buyer’s lender will be 494
required to provide the Closing Company in a timely manner all required loan documents and financial information 495
concerning Buyer’s new loan. Buyer and Seller will furnish any additional information and documents required by 496
Closing Company that will be necessary to complete this transaction. Buyer and Seller shall sign and complete all 497
customary or reasonably required documents at or before Closing. 498
12.2. Closing Instructions. Colorado Real Estate Commission’s Closing Instructions. Are Are Not executed 499
with this Contract. Upon mutual execution, Seller Buyer shall deliver such Closing Instructions to the 500
Closing Company. 501
12.3. Closing. Delivery of deed from Seller to Buyer shall be at closing (Closing). Closing shall be on the date specified 502
as the Closing Date (§ 3) or by mutual agreement at an earlier date. The hour and place of Closing shall be as 503
designated by the sales contract. 504
12.4. Disclosure of Settlement Costs. Buyer and Seller acknowledge that costs, quality, and extent of service vary 505
between different settlement service providers (e.g., attorneys, lenders, inspectors and title companies). 506
13. TRANSFER OF TITLE. Subject to tender of payment at Closing as required herein and compliance by Buyer with the 507
other terms and provisions hereof, Seller shall execute and deliver a good and sufficient Special Warranty deed to Buyer, at 508
Closing, conveying the Property free and clear of all taxes except the general taxes for the year of Closing. Except as 509
provided herein, title shall be conveyed free and clear of all liens, including any governmental liens for special 510
improvements installed as of the date of Buyer's signature hereon, whether assessed or not. Title shall be conveyed subject 511
to: 512
13.1. Those specific Exceptions described by reference to recorded documents as reflected in the Title Documents 513
accepted by Buyer in accordance with Record Title (§ 8.1), 514
13.2. Distribution utility easements (including cable TV), 515
13.3. Those specifically described rights of third parties not shown by the public records of which Buyer has actual 516
knowledge and which were accepted by Buyer in accordance with Off Record Title (§ 8.2) and Current Survey 517
Review (§ 9), 518
13.4. Inclusion of the Property within any special taxing district, and 519
13.5. Other n/a 520
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14. PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be paid at or before Closing from the 521
proceeds of this transaction or from any other source. 522
15. CLOSING COSTS, CLOSING FEE, ASSOCIATION FEES AND TAXES. 523
15.1. Closing Costs. Buyer and Seller shall pay, in Good Funds, their respective closing costs and all other items 524
required to be paid at Closing, except as otherwise provided herein. 525
15.2. Closing Services Fee. The fee for real estate closing services shall be paid at Closing by Buyer Seller 526
One-Half by Buyer and One-Half by Seller Other 527
15.3. Status Letter and Record Change Fees. Any fees incident to the issuance of Association's statement of 528
assessments (Status Letter) shall be paid by Buyer Seller One-Half by Buyer and One-Half by 529
Seller None. Any record change fees assessed by the Association including, but not limited to, ownership 530
record transfer fees, regardless of name or title of such fee (Association's Record Change Fee) shall be paid by 531
Buyer Seller One-Half by Buyer and One-Half by Seller None. 532
15.4. Local Transfer Tax. The Local Transfer Tax of 0.0% of the Purchase Price shall be paid at Closing by 533
Buyer Seller One-Half by Buyer and One-Half by Seller None. 534
15.5. Private Transfer Fee. Private transfer fees and other fees due to a transfer of the Property, payable at Closing, 535
such as community association fees, developer fees and foundation fees, shall be paid at Closing by Buyer 536
Seller One-Half by Buyer and One-Half by Seller None. The Private Transfer fee, whether one or 537
more, is for the following association(s): n/a in the total amount of n/a% of the Purchase Price or $n/a. 538
15.6. Water Transfer Fees. The Water Transfers Fees can change. The fees, as of the date of this Contract, do not 539
exceed: 540
$n/a for Water Stock/Certificates Water District 541
$n/a for Augmentation Membership Small Domestic Water Company n/a and shall be paid at 542
Closing by Buyer Seller One-Half by Buyer and One-Half by Seller None. 543
15.7. Sales and Use Tax. Any sales and use tax that may accrue because of this transaction shall be paid when due by 544
Buyer Seller One-Half by Buyer and One-Half by Seller None. 545
16. PRORATIONS. The following shall be prorated to Closing Date (§ 3), except as otherwise provided: 546
16.1. Taxes. Personal property taxes, if any, special taxing district assessments, if any, and general real estate taxes for 547
the year of Closing, based on Taxes for the Calendar Year Immediately Preceding Closing Most 548
Recent Mill Levy and Most Recent Assessed Valuation, adjusted by any applicable qualifying seniors property 549
tax exemption, qualifying disabled veteran exemption or Other . 550
16.2. Rents. Rents based on Rents Actually Received Accrued. At Closing, Seller shall transfer or credit to 551
Buyer the security deposits for all Leases assigned, or any remainder after lawful deductions, and notify all 552
tenants in writing of such transfer and of the transferee’s name and address. Seller shall assign to Buyer all 553
Leases in effect at Closing and Buyer will assume Seller’s obligations under such Leases. 554
16.3. Association Assessments. Current regular Association assessments and dues (Association Assessments) paid in 555
advance shall be credited to Seller at Closing. Cash reserves held out of the regular Association Assessments for 556
deferred maintenance by the Association shall not be credited to Seller except as may be otherwise provided by the 557
Governing Documents. Buyer acknowledges that Buyer may be obligated to pay the Association, at Closing, an 558
amount for reserves or working capital. Any special assessment assessed prior to Closing Date (§ 3) by the 559
Association shall be the obligation of Buyer Seller. Except however, any special assessment by the 560
Association for improvements that have been installed as of the date of Buyer’s signature hereon, whether assessed 561
prior to or after Closing, shall be the obligation of Seller. Seller represents that the Association Assessments are 562
currently payable at $ per month and that there are no unpaid regular or special assessments against the 563
Property except the current regular assessments and None. Such assessments are subject to change as provided in 564
the Governing Documents. Seller agrees to promptly request the Association to deliver to Buyer before Closing 565
Date (§ 3) a current Status Letter. 566
16.4. Other Prorations. Water and sewer charges; propane, interest on continuing loan, and n/a. 567
16.5. Final Settlement. Unless otherwise agreed in writing, these prorations shall be final. 568
17. POSSESSION. Possession of the Property shall be delivered to Buyer on Possession Date (§ 3) at Possession Time (§ 3), 569
subject to the following Leases or tenancies: Upon delivery of deed 570
If Seller, after Closing, fails to deliver possession as specified, Seller shall be subject to eviction and shall be additionally 571
liable to Buyer for payment of $150 per day (or any part of a day notwithstanding §18.1) from Possession Date (§ 3) and 572
Possession Time (§ 3) until possession is delivered. 573
Buyer Does Does Not represent that Buyer will occupy the Property as Buyer's principal residence. 574
575
Note: If the parties agree to execute a Post-Closing Occupancy Agreement, the document should appear in Attachments 576
(§ 31). 577
578
GENERAL PROVISIONS
579
18. DAY; COMPUTATION OF PERIOD OF DAYS, DEADLINE. 580
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VI.a
18.1. Day. As used in this Contract, the term “day” shall mean the entire day ending at 11:59 p.m., United States 581
Mountain Time (Standard or Daylight Savings as applicable). 582
18.2. Computation of Period of Days, Deadline. In computing a period of days, when the ending date is not specified, 583
the first day is excluded and the last day is included, e.g., three days after MEC. If any deadline falls on a 584
Saturday, Sunday or federal or Colorado state holiday (Holiday), such deadline Shall Shall Not be 585
extended to the next day that is not a Saturday, Sunday or Holiday. Should neither box be checked, the deadline 586
shall not be extended. 587
19. CAUSES OF LOSS, INSURANCE; DAMAGE TO INCLUSIONS AND SERVICES; CONDEMNATION; AND 588
WALK-THROUGH. Except as otherwise provided in this Contract, the Property, Inclusions or both shall be delivered in 589
the condition existing as of the date of this Contract, ordinary wear and tear excepted. 590
19.1. Causes of Loss, Insurance. In the event the Property or Inclusions are damaged by fire, other perils or causes of 591
loss prior to Closing in an amount of not more than ten percent of the total Purchase Price (Property Damage), 592
Seller shall be obligated to repair the same before Closing Date (§ 3). Buyer has the Right to Terminate under § 593
25.1, on or before Closing Date (§ 3), if the Property Damage is not repaired before Closing Date (§ 3) or if the 594
damage exceeds such sum. Should Buyer elect to carry out this Contract despite such Property Damage, Buyer 595
shall be entitled to a credit at Closing for all the insurance proceeds that were received by Seller (but not the 596
Association, if any) resulting from such damage to the Property and Inclusions, plus the amount of any deductible 597
provided for in such insurance policy. Such credit shall not exceed the Purchase Price. In the event Seller has not 598
received such insurance proceeds prior to Closing, the parties may agree to extend the Closing Date (§ 3) or, at 599
the option of Buyer, Seller shall assign such proceeds at Closing, plus credit Buyer the amount of any deductible 600
provided for in such insurance policy, but not to exceed the total Purchase Price. 601
19.2. Damage, Inclusions and Services. Should any Inclusion or service (including utilities and communication 602
services), system, component or fixture of the Property (collectively Service), e.g., heating or plumbing, fail or be 603
damaged between the date of this Contract and Closing or possession, whichever shall be earlier, then Seller shall 604
be liable for the repair or replacement of such Inclusion or Service with a unit of similar size, age and quality, or 605
an equivalent credit, but only to the extent that the maintenance or replacement of such Inclusion or Service is not 606
the responsibility of the Association, if any, less any insurance proceeds received by Buyer covering such repair or 607
replacement. If the failed or damaged Inclusion or Service is not repaired or replaced on or before Closing or 608
possession, whichever shall be earlier, Buyer has the Right to Terminate under § 25.1, on or before Closing Date 609
(§ 3), or, at the option of Buyer, Buyer will be entitled to a credit at Closing for the repair or replacement of such 610
Inclusion or Service. Such credit shall not exceed the Purchase Price. If Buyer receives such a credit, Seller's right 611
for any claim against the Association, if any, shall survive Closing. Seller and Buyer are aware of the existence of 612
pre-owned home warranty programs that may be purchased and may cover the repair or replacement of such 613
Inclusions. 614
19.3 Condemnation. In the event Seller receives actual notice prior to Closing that a pending condemnation action 615
may result in a taking of all or part of the Property or Inclusions, Seller shall promptly notify Buyer, in writing, of 616
such condemnation action. Buyer has the Right to Terminate under § 25.1, on or before Closing Date (§ 3), based 617
on such condemnation action, in Buyer’s sole subjective discretion. Should Buyer elect to consummate this 618
Contract despite such diminution of value to the Property and Inclusions, Buyer shall be entitled to a credit at 619
Closing for all condemnation proceeds awarded to Seller for the diminution in the value of the Property or 620
Inclusions but such credit shall not include relocation benefits or expenses, or exceed the Purchase Price. 621
19.4. Walk-Through and Verification of Condition. Buyer, upon reasonable notice, has the right to walk through the 622
Property prior to Closing to verify that the physical condition of the Property and Inclusions complies with this 623
Contract. 624
20. RECOMMENDATION OF LEGAL AND TAX COUNSEL. By signing this Contract, Buyer and Seller acknowledge 625
that the respective broker has advised that this Contract has important legal consequences and has recommended the 626
examination of title and consultation with legal and tax or other counsel before signing this Contract. 627
21. TIME OF ESSENCE, DEFAULT AND REMEDIES. Time is of the essence hereof. If any note or check received as 628
Earnest Money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any 629
obligation hereunder is not performed or waived as herein provided, the nondefaulting party has the following remedies: 630
21.1. If Buyer is in Default: 631
21.1.1. Specific Performance. Seller may elect to treat this Contract as canceled, in which case all Earnest 632
Money (whether or not paid by Buyer) shall be paid to Seller and retained by Seller; and Seller may 633
recover such damages as may be proper; or Seller may elect to treat this Contract as being in full force 634
and effect and Seller has the right to specific performance or damages, or both. 635
21.1.2. Liquidated Damages, Applicable. This § 21.1.2. shall apply unless the box in § 21.1.1. is checked. 636
All Earnest Money (whether or not paid by Buyer) shall be paid to Seller, and retained by Seller. Both 637
parties shall thereafter be released from all obligations hereunder. It is agreed that the Earnest Money 638
specified in § 4.1 is LIQUIDATED DAMAGES, and not a penalty, which amount the parties agree is fair 639
and reasonable and (except as provided in § §10.4, 22, 23 and 24), said payment of Earnest Money shall 640
P16
VI.a
be SELLER'S ONLY REMEDY for Buyer's failure to perform the obligations of this Contract. Seller 641
expressly waives the remedies of specific performance and additional damages. 642
21.2. If Seller is in Default: Buyer may elect to treat this Contract as canceled, in which case all Earnest Money 643
received hereunder shall be returned and Buyer may recover such damages as may be proper, or Buyer may elect 644
to treat this Contract as being in full force and effect and Buyer has the right to specific performance or damages, 645
or both. 646
22. LEGAL FEES, COST AND EXPENSES. Anything to the contrary herein notwithstanding, in the event of any 647
arbitration or litigation relating to this Contract, prior to or after Closing Date (§ 3), the arbitrator or court shall award to 648
the prevailing party all reasonable costs and expenses, including attorney fees, legal fees and expenses. 649
23. MEDIATION. If a dispute arises relating to this Contract, prior to or after Closing, and is not resolved, the parties shall 650
first proceed in good faith to submit the matter to mediation. Mediation is a process in which the parties meet with an 651
impartial person who helps to resolve the dispute informally and confidentially. Mediators cannot impose binding 652
decisions. The parties to the dispute must agree, in writing, before any settlement is binding. The parties will jointly 653
appoint an acceptable mediator and will share equally in the cost of such mediation. The mediation, unless otherwise 654
agreed, shall terminate in the event the entire dispute is not resolved within thirty days of the date written notice requesting 655
mediation is delivered by one party to the other at the party’s last known address. This section shall not alter any date in 656
this Contract, unless otherwise agreed. 657
24. EARNEST MONEY DISPUTE. Except as otherwise provided herein, Earnest Money Holder shall release the Earnest 658
Money as directed by written mutual instructions, signed by both Buyer and Seller. In the event of any controversy 659
regarding the Earnest Money (notwithstanding any termination of this Contract), Earnest Money Holder shall not be 660
required to take any action. Earnest Money Holder, at its sole subjective discretion, has several options: (1) await any 661
proceeding, (2) interplead all parties and deposit Earnest Money into a court of competent jurisdiction and shall recover 662
court costs and reasonable attorney and legal fees, or (3) provide notice to Buyer and Seller that unless Earnest Money 663
Holder receives a copy of the Summons and Complaint or Claim (between Buyer and Seller) containing the case number of 664
the lawsuit (Lawsuit) within one hundred twenty days of Earnest Money Holder's notice to the parties, Earnest Money 665
Holder shall be authorized to return the Earnest Money to Buyer. In the event Earnest Money Holder does receive a copy 666
of the Lawsuit, and has not interpled the monies at the time of any Order, Earnest Money Holder shall disburse the Earnest 667
Money pursuant to the Order of the Court. The parties reaffirm the obligation of Mediation (§ 23). 668
25. TERMINATION. 669
25.1. Right to Terminate. If a party has a right to terminate, as provided in this Contract (Right to Terminate), the 670
termination shall be effective upon the other party’s receipt of a written notice to terminate (Notice to Terminate), 671
provided such written notice was received on or before the applicable deadline specified in this Contract. If the 672
Notice to Terminate is not received on or before the specified deadline, the party with the Right to Terminate shall 673
have accepted the specified matter, document or condition as satisfactory and waived the Right to Terminate under 674
such provision. 675
25.2. Effect of Termination. In the event this Contract is terminated, all Earnest Money received hereunder shall be 676
returned and the parties shall be relieved of all obligations hereunder, subject to §§ 10.4, 22, 23 and 24. 677
26. ENTIRE AGREEMENT, MODIFICATION, SURVIVAL. This Contract, its exhibits and specified addenda, constitute 678
the entire agreement between the parties relating to the subject hereof, and any prior agreements pertaining thereto, whether 679
oral or written, have been merged and integrated into this Contract. No subsequent modification of any of the terms of this 680
Contract shall be valid, binding upon the parties, or enforceable unless made in writing and signed by the parties. Any right 681
or obligation in this Contract that, by its terms, exists or is intended to be performed after termination or Closing shall 682
survive the same. 683
27. NOTICE, DELIVERY, AND CHOICE OF LAW. 684
27.1. Physical Delivery. All notices must be in writing, except as provided in § 27.2. Any document, including a 685
signed document or notice, from or on behalf of the Seller, and delivered to Buyer shall be effective when 686
physically received by Buyer, any signatory on behalf of Buyer, any named individual of Buyer, any 687
representative of Buyer, or Brokerage Firm of Broker working with Buyer (except for delivery, after Closing, of 688
the notice requesting mediation described in § 23) and except as provided in § 27.2. Any document, including a 689
signed document or notice, from or on behalf of Buyer, and delivered to Seller shall be effective when physically 690
received by Seller, any signatory on behalf of Seller, any named individual of Seller, any representative of Seller, 691
or Brokerage Firm of Broker working with Seller (except for delivery, after Closing, of the notice requesting 692
mediation described in § 23) and except as provided in § 27.2. 693
27.2. Electronic Delivery. As an alternative to physical delivery, any document, including any signed document or 694
written notice, may be delivered in electronic form only by the following indicated methods: 695
Facsimile Email Internet No Electronic Delivery. If the box “No Electronic Delivery” is 696
checked, this § 27.2 shall not applicable and § 27.1 shall govern notice and delivery. Documents with original 697
signatures shall be provided upon request of any party. 698
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VI.a
27.3. Choice of Law. This Contract and all disputes arising hereunder shall be governed by and construed in 699
accordance with the laws of the State of Colorado that would be applicable to Colorado residents who sign a 700
contract in Colorado for property located in Colorado. 701
28. NOTICE OF ACCEPTANCE, COUNTERPARTS. This proposal shall expire unless accepted in writing, by Buyer and 702
Seller, as evidenced by their signatures below, and the offering party receives notice of such acceptance pursuant to § 27 on 703
or before Acceptance Deadline Date (§3) and Acceptance Deadline Time (§ 3). If accepted, this document shall become 704
a contract between Seller and Buyer. A copy of this Contract may be executed by each party, separately, and when each 705
party has executed a copy thereof, such copies taken together shall be deemed to be a full and complete contract between 706
the parties. 707
29. GOOD FAITH. Buyer and Seller acknowledge that each party has an obligation to act in good faith including, but not 708
limited to, exercising the rights and obligations set forth in the provisions of Financing Conditions and Obligations (§ 5), 709
Record Title and Off-Record Title (§ 8), Current Survey Review (§ 9) and Property Disclosure, Inspection, 710
Indemnity, Insurability, Due Diligence, Buyer Disclosure and Source of Water (§ 10). 711
712
ADDITIONAL PROVISIONS AND ATTACHMENTS
713
30. ADDITIONAL PROVISIONS. (The following additional provisions have not been approved by the Colorado Real 714
Estate Commission.) 715
716
717
31. ATTACHMENTS. 718
31.1. The following attachments are a part of this Contract: 719
31.2. The following disclosure forms are attached but are not a part of this Contract: . 720
721
SIGNATURES
722
Buyer’s Name: City of Aspen Buyer’s Name
723
Buyer’s Signature Date October 8, 2013 Buyer’s Signature Date
Address: 130 S. Galena Street Address:
Aspen, CO 81611
Phone No.: 970-920-5296 Phone No.:
Fax No.: 970-920-5119 Fax No.:
Electronic Address: barry.crook@cityofaspen.com Electronic Address:
[NOTE: If this offer is being countered or rejected, do not sign this document. Refer to § 32]
724
Seller’s Name: Seller’s Name:
725
Seller’s Signature Date Seller’s Signature Date
Address: Address:
Phone No.: Phone No.:
Fax No.: Fax No.:
Electronic Address: Electronic Address:
726
32. COUNTER; REJECTION. This offer is Countered Rejected. 727
728
Initials only of party (Buyer or Seller) who countered or rejected offer __________________________ 729
730
END OF CONTRACT TO BUY AND SELL REAL ESTATE
731
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VI.a
M E M O R A N D U M
TO: Mayor and City Council
THRU: Randy Ready, Assistant City Manager
FROM: John D. Krueger, Director of Transportation
DATE OF MEMO: November11, 2013
MEETING DATE: December 2, 2013
RE: EOTC 2014 1/2% Transit Sales and Use Tax Budget
_______________________________________________________________________________
REQUEST OF COUNCIL: Attached for your review and approval is resolution #108 series 2013
and EOTC budget which, if approved, would authorize the initial 2014 EOTC budget for the Pitkin
County 1/2 cent transit sales and use tax as summarized below.
Total 2014 Revenues $ 5,194,000
Total 2014 Expenditures 4,964,427
Annual Surplus (Deficit) $ 299,573
Cumulative Surplus $ 9,584,076
The Pitkin County Commissioners, Snowmass Village Town Council and Aspen City Council meet
together as the Elected Officials Transportation Committee (“EOTC”) to oversee the budget for
the Pitkin County 1/2 cent transit sales and use tax.
PREVIOUS COUNCIL ACTION:
City Council, as a member of the EOTC, approved the proposed 2014 budget at the November 21st
EOTC meeting. However, the EOTC requested that more detail, including an hourly rate, be
provided for the planning retreat $6,800 line-item. Attached is the detailed proposal for $6,000 of
facilitation for the retreat. The $800 included in the budget for meeting space rental may not be
spent if free space is available as discussed at the EOTC meeting.
BACKGROUND:
The City of Aspen as a member of the EOTC is required to approve the budget by resolution. Each
other member of the EOTC is also required to approve the budget by resolution before the budget
can be considered adopted.
DISCUSSION:
The mission of the EOTC is to “work collectively to reduce and/or manage the volume of vehicles
on the road system and develop a comprehensive, long-range strategy that will insure a convenient
and efficient transportation system for the Roaring Fork Valley.” The 2014 budget provides for a
use of the funds in a manner consistent with the EOTC mission.
FINANCIAL/BUDGET IMPLICATIONS:
There are no financial implications to the City as these are EOTC funds and not City funds.
1
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VI.b
ENVIRONMENTAL IMPACTS:
By encouraging mass transit and working to manage or reduce the number of vehicles on the road
system, the EOTC is having positive impacts on the environment.
RECCOMENDED ACTION:
Staff recommends that Council approve the attached resolution to approve the EOTC budget.
ALTERNATIVES:
Council can decide not to approve the 2014 EOTC budget and send it back to the EOTC for further
discussion and approval.
PROPOSED MOTION:
“I move to approve Resolution #108 series 2013 to approve the 2014 EOTC Budget.”
CITY MANAGER COMMENTS:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
____________________________________________________________________
ATTACHMENTS:
Resolution #108 series 2013 approving the Initial 2014 Budget for the ½-Cent Transit Sales and
Use Tax Fund
EOTC Budget and Multi-year Plan
Outline of EOTC Retreat Plan
2
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VI.b
RESOLUTION NO. 108
SERIES OF 2013
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING THE INITIAL 2014 BUDGET FOR THE PITKIN COUNTY 1/2 CENT TRANSIT
SALES AND USE TAX
WHEREAS, the Aspen City Council, the Pitkin County Board of County Commissioners
and the Town Council of Snowmass Village (the "Parties") have previously identified general
elements of their Comprehensive Valley Transportation Plan (the "Plan") which are eligible for
funding from the Pitkin County one-half cent transit sales and use tax; and
WHEREAS, by intergovernmental agreement dated September 14, 1993, the Parties agreed:
a. to conduct regular public meetings as the Elected Officials Transit
Committee (“EOTC”) to continue to refine and agree upon proposed projects and
transportation elements consistent with or complimentary to the Plan; and
b. that all expenditures and projects to be funded from the County-wide one-
half cent transit sales and use tax shall be agreed upon by the Parties and evidenced
by a resolution adopted by the governing body of each party; and
WHEREAS, at the EOTC meeting held on November 21, 2013, the Parties considered and
approved the attached initial 2014 budget for the Pitkin County one-half cent transit sales and use
tax; and
WHEREAS, the City of Aspen wishes to ratify the approvals given at the EOTC meeting by
adoption of this resolution.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Aspen,
Colorado, that the attached initial 2014 budget for the one-half cent transit sales and use tax is
hereby approved as summarized below:
Total 2014 Revenues $ 5,194,000
Total 2014 Expenditures $ 4,964,427
RESOLVED, APPROVED, AND ADOPTED this 2nd day of December, 2013, by the
City Council for the City of Aspen, Colorado.
_________________________
Steven Skadron, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk, do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held December 2, 2013.
______________________
Kathryn S. Koch, City Clerk
H:\Council Meeting Dec 2 2013\Resolution # 108 series 2013.docx
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VI.b
EOTC BUDGET AND MULTI-YEAR PLAN
EOTC Transit Project Funding Proposed
Actual Budget Budget Plan Plan Plan Plan
2012 2013 2014 2015 2016 2017 2018
FUNDING SOURCES:
a)Pitkin County 1/2% sales tax 3,913,565 4,116,000 4,260,000 4,409,000 4,563,000 4,723,000 4,888,000
b)Pitkin County 1/2% use tax 784,524 813,000 878,000 918,000 946,000 974,000 1,003,000
c)Investment income & misc.51,181 54,000 56,000 58,000 185,000 412,000 546,000
Total Funding Sources 4,749,270 4,983,000 5,194,000 5,385,000 5,694,000 6,109,000 6,437,000
FUNDING USES:
1)Use tax collection costs 78,773 101,809 111,596 116,060 120,702 125,530 130,552
2)Administrative cost allocation & meeting costs 25,041 17,392 18,827 19,768 20,757 21,795 22,884
2a) Planning retreat 6,800
3)Cab ride in-lieu of bus stop safety imprvs 5,171 8,000 8,000 8,280 8,570 8,870 9,180
4)X-Games transit subsidy 50,000 100,000 100,000 100,000 100,000 100,000 100,000
5)Brush Creek Intercept Lot operating costs 28,478 32,000 35,000 36,225 37,493 38,805 40,163
6)RFTA contribution (81.04% of 1/2% sales tax)3,171,553 3,335,606 3,452,304 3,573,054 3,697,855 3,697,855 3,697,855
7)No-fare Aspen-Snowmass-Woody Creek bus service - year-round 553,838
8)No-fare bus service - winter, spring, fall 478,148 476,211 476,211 490,497 490,497 490,497
9)No-fare bus service - summer (funded from SVTC lockbox)75,689 75,689 75,689 77,960 77,960 77,960
10)Capital projects pool ($3M advanced equally from ETA & SVTC lockboxes)
10a) AABC pedestrian crossing design & engineering (addtl $125,000)104,246 20,754
10b) AABC pedestrian crossing construction contribution 2,025,000
10c) remainder - unallocated 850,000
11)AABC ped. crossing design & engineering ($250k advanced from ETA lockbox)158,632
12)Rubey Park planning, scoping & conceptual design (funded from ETA)
12a) scoping & conceptual design 200,000
12b) final design, landuse & permitting 650,000
13)Regional Travel Patterns study 30,000
Total Uses 4,175,732 6,394,398 4,964,427 5,255,287 4,553,834 4,561,312 4,569,091
EOTC ANNUAL SURPLUS/(DEFICIT)573,538 (1,411,398) 229,573 129,713 1,140,166 1,547,688 1,867,909
EOTC CUMULATIVE SURPLUS/(DEFICIT) FUND BALANCE 10,765,901 9,354,503 9,584,076 9,713,789 10,853,955 12,401,644 14,269,552
a)sales tax 3.0%5.2%3.5%3.5%3.5%3.5%3.5%
b)use tax 2.5%3.6%8.0%4.5%3.0%3.0%3.0%
c)investment earnings rate 0.5%0.5%0.6%0.6%1.9%3.8%4.4%
Revenue projections:
11/15/2013 14 EOTC.xlsx
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VI
.
b
EOTC BUDGET AND MULTI-YEAR PLAN
Actual Budget Proposed Plan Plan Plan Plan
Fund balance designated for Snowmass Village Transit Center (SVTC)2012 2013 2014 2015 2016 2017 2018
less summer no- fare service (75,689) (75,689) (75,689) (77,960) (77,960) (77,960)
less 1/2 of advance to capital pool (52,123) (1,022,877) - (425,000) - - -
plus reimbursement of advance to capital pool - - - 32,116 244,775 342,812
Year-end fund balance designated for Snowmass Village Transit Center 6,378,042 5,279,476 5,203,787 4,703,098 4,657,255 4,824,070 5,088,923
Advance
880,296
receivable
Actual Budget Proposed Plan Plan Plan Plan
Calculation of amount allocated to Entrance-to-Aspen (ETA)2012 2013 2014 2015 2016 2017 2018
Pitkin County 1/2% sales tax 3,913,565 4,116,000 4,260,000 4,409,000 4,563,000 4,723,000 4,888,000
Pitkin County 1/2% use tax 784,524 813,000 878,000 918,000 946,000 974,000 1,003,000
less committed funding (187,463) (259,201) (280,223) (280,333) (287,522) (295,000) (302,779)
less RFTA contribution (81.04% of 1/2% sales tax)(3,171,553) (3,335,606) (3,452,304) (3,573,054) (3,697,855) (3,697,855) (3,697,855)
Net revenue to be allocated 1,339,073 1,334,193 1,405,473 1,473,613 1,523,623 1,704,145 1,890,366
Annual 2/3's allocation to Entrance-to-Aspen 892,715 889,462 936,982 982,409 1,015,749 1,136,097 1,260,244
plus reimbursement to ETA for $250,000 pedestrian crossing funding 20,583 18,280 72,993 138,144 - -
less 1/2 of advance to capital pool (52,123) (1,022,877) - (425,000) - - -
plus reimbursement of advance to capital pool - - - 32,116 244,775 342,812
less Rubey Park planning funded from ETA (200,000) (650,000)
less annual discretionary funding deficit (214,931)
Year-end fund balance designated for Entrance-to-Aspen (ETA)4,387,859 4,075,027 4,380,289 5,010,691 6,196,701 7,577,573 9,180,629
Advance
880,296
receivable
Actual Budget Proposed Plan Plan Plan Plan
Calculation of amount allocated to discretionary funding 2012 2013 2014 2015 2016 2017 2018
EOTC ANNUAL SURPLUS (after funding operations)573,538 (1,411,398) 229,573 129,713 1,140,166 1,547,688 1,867,909
less Annual 2/3's allocation to Entrance-to-Aspen (892,715) (889,462) (936,982) (982,409) (1,015,749) (1,136,097) (1,260,244)
plus advance for capital projects pool 104,246 2,045,754 - 850,000 - - -
plus Rubey Park planning funded from ETA 200,000 650,000
plus summer no-fare bus service funded from SVTC lockbox 75,689 75,689 75,689 77,960 77,960 77,960
Remaining annual discretionary funding (214,931) 20,583 18,280 72,993 202,377 489,551 685,624
less reimbursement to ETA for $250,000 ped crossing funding (20,583) (18,280) (72,993) (138,144) - -
less reimbursement of advance to capital pool - - (64,233) (489,551) (685,624)
Net annual discretionary funding after reimbursements - - - - -
Cumulative remaining discretionary funding after reimbursements - - - - - -
remaining balance to reimburse ETA & SVTC for advance to capital pool 104,246 2,150,000 2,150,000 3,000,000 2,935,767 2,446,216 1,760,592
remaining balance to reimburse ETA for 2011-12 $250,000 advance 250,000 229,417 211,137 138,144 - - -
Advance
1,760,592
payable
11/15/2013 14 EOTC.xlsx
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VI
.
b
Outline of EOTC Retreat Plan
Robert Schultz Consulting 9.18.13 Discussion Draft
EOTC Retreat Goals:
1.) Update Mission
2.) Identify Broad Goals
3.) Develop Macro-Priorities
December/January
• One-on-one meetings with Mayor/Chair and one other elected official from each
jurisdiction to identify issues to prep for February retreat.
• Staff meeting to share findings and finalize plan for retreat
14 hours
February
• Retreat- Four Hours
Background
Mission discussion
SWOT
Create Subcommittee
• Notes
12 hours
March
• Two or Three Subcommittee Meetings
Refine mission
Clarify goals
Preliminary priorities
• Staff Meeting
10 hours
April
• Mini-Retreat- Two Hours
Review, revise, adopt subcommittee work
Document results
Staff meeting
12 hours
Total- 48 hours @ 125 = $6,000
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VI.b
MEMORANDUM
TO: Mayor and City Council
FROM: John Krueger and Lynn Rumbaugh, Transportation
THRU: Randy Ready, Assistant City Manager
DATE OF MEMO: November 21, 2013
DATE OF MEETING: December 2, 2013
RE: Professional Services Contract for Rubey Park Final
Design
REQUEST OF COUNCIL
This memo requests that Council approve resolution # 109 series 2013 authorizing the
City manager to execute a contract between the City of Aspen and Studio B for final
design services of the Rubey Park remodel project in the amount of $624,958.00.
This project is funded by the Elected Officials Transportation Committee (EOTC) and
managed by City staff. Final execution of the attached contract will be contingent upon
all EOTC-bodies approving the 2014 EOTC budget at their individual meetings in
December.
PREVIOUS COUNCIL ACTION
• In 2012, a remodel of the Rubey Park Transit Center was identified through the Aspen
Area Community Plan update as one of City Council’s top action items.
• In 2012, Aspen City Council, and the EOTC as a whole approved the expenditure of
$200,000.00 from the Entrance to Aspen lock box for the purpose of outreach and
schematic design related to a Rubey Park remodel.
• At its September 24, 2013 work session, Aspen City Council approved a schematic
remodel design (Attachment C).
• At the November 21, 2013 meeting, the EOTC approved the use of Entrance to Aspen
lock box funds for final design and permitting of this project as part of the EOTC 2014
budget.
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BACKGROUND
The City of Aspen owns the Rubey Park Transit Center (Rubey Park) which serves as the
terminal for all Aspen local services as well as the start/end point for the majority of RFTA
regional routes, including the soon-to-be unveiled BRT service. Rubey Park is leased to RFTA
on an annual basis for the purpose of operating transit related activities such as bus staging, ticket
sales, public information and administration.
Built in the late 1980’s, the facility has deteriorated, resulting in potential safety concerns
including tripping hazards due to cracked and uneven pavement. Further, growing ridership and
increased numbers of employees have resulted in activity levels that exceed the comfortable
capacity of the facility. In particular, driver break rooms, indoor passenger waiting areas and
passenger bathrooms are inadequate in size and condition. In addition, bus parking is far beyond
its maximum, requiring RFTA buses to stage outside of town or loop through the downtown area
while waiting for a space to stage at Rubey Park.
Recognizing these issues, Aspen City Council identified improvements to Rubey Park as one of
the top ten action items related to the Aspen Area Community Plan update. The EOTC-funded
outreach and schematic design portion of the project was completed between the spring and fall
of 2013; on time and under budget, resulting in a schematic design that will move forward to
final design and permitting.
City and RFTA staff has received conditional approval for FASTER funding from the Colorado
Department of Transportation in the amount of $1 million, as well as Federal Lands Access
Program funding from the Federal Highway Administration in the amount of $2 million. Both
grants will fund the construction portion of the project and are contingent upon a swift
completion of final design and permitting.
On November 21, the EOTC agreed to fund the costs of this portion of the project, as part of its
2014 budget, using the Entrance to Aspen lock box. The City of Aspen will review and
potentially approve the 2014 EOTC budget on December 2, followed by the Board of County
Commissioners and Snowmass Village, also in December. The attached contract will not be
fully executed until all entities complete the 2014 EOTC budget approval.
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DISCUSSION
An RFQ for a team to facilitate final design and permitting for the Rubey Park project was issued
in October 2013. As part of this process, a team including City Transportation, Engineering, and
Community Development as well as staff from RFTA Facilities and Operations reviewed four
vendor proposals. From those four proposals, the two top scoring vendors were invited to be
interviewed by the selection team. Interviews and staff discussion led to the selection of the
Studio B team, which combines both local knowledge with national expertise in areas of
engineering, design, outreach, cost estimating and landscaping. Other team members include
Bluegreen, RLB and Sopris Engineering. Together, staff believes that this team is the best
candidate for an important final design process.
Studio B’s scope of work includes permitting meetings and materials, outreach, construction
documents, full cost estimating and support throughout eventual construction. Reviews by both
RFTA and City Engineering staff find the scope of work and cost to be appropriate for this
project. See the project’s contract/scope of work in Attachment B of this memo.
FINANCIAL IMPLICATIONS
The contract between Studio B and the City of Aspen is in the amount of $624,958.00. This
funding will come from the EOTC fund-not from the City of Aspen. The City of Aspen
Transportation Fund will not be impacted by this contract expense.
ENVIRONMENTAL IMPLICATIONS
In the 1980’s, the City of Aspen was designated a PM-10 (particulate pollution sized 10 microns
or less) non-attainment area by the U.S. Environmental Protection Agency. A number of
mitigation measures including free transit helped Aspen receive a PM-10 maintenance
designation in 2003. However, Aspen continues to be challenged in maintaining and meeting
future air quality standards. Providing a quality transit experience, including a welcoming transit
center, is key to these efforts.
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RECOMMENDATION
Staff recommends approval of attached resolution #109 series 2013 and the contract
between the City of Aspen and Studio B for final design services for the remodel of the
Rubey Park Transit Center.
ALTERNATIVES
Council could choose to decline the contract and provide staff with direction to seek an alternate
vendor or undertake a new RFQ process.
PROPOSED MOTION
“I move to approve Resolution # 109 series 2013 approving the contract for final design services
and authorizing the city manager to execute the contract between the City of Aspen and Studio B
for the final design services of the Rubey Park Transit Center.”
CITY MANAGER COMMENTS:
ATTACHMENTS
Attachment A: Resolution # 109 series 2013 Approving Contract with Studio B
Attachment B: Contract Documents
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RESOLUTION NO.109
Series of 2013
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING CONTRACT
BETWEEN THE CITY OF ASPEN, COLORADO, AND STUDIO B FOR FINAL
DESIGN AND PERMITTING SERVICES RELATED TO A RUBEY PARK REMODEL
AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID DOCUMENT ON
BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS a contract between the City of Aspen, Colorado and Studio B, is annexed
hereto and made a part thereof;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO:
That the City Council of the City of Aspen hereby approves a contract between the City of
Aspen, Colorado and Studio B, a copy of which is annexed hereto and incorporated herein,
and does hereby authorize the City Manager of the City of Aspen to execute said contract on
behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 2nd day
of December, 2013.
_________________________
Steven Skadron, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and
accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a
meeting held on the day hereinabove stated.
___________________________
Kathryn S. Koch, City Clerk
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
PROFESSIONAL SERVICES CONTRACT BETWEEN
THE CITY OF ASPEN AND SCOTT A. LINDENAU, ARCHITECT, P.C. d.b.a. STUDIO
B ARCHITECTURE & INTERIORS
CONTRACT NO. 2013-142
This Contract is made and entered into this 2nd day of December, 2013 (“Effective Date”) between the
CITY OF ASPEN, a municipality and political subdivision of the State of Colorado (“The City”) and
SCOTT A. LINDENAU, ARCHITECT, P.C., doing business as STUDIO B ARCHITECTURE +
INTERIORS, a corporation organized pursuant to the laws of the State of Colorado (the
“CONTRACTOR”). The City and Contractor may hereinafter from time to time be referred to as
“Party” or “Parties”.
RECITALS:
WHEREAS, The City desires to engage a qualified and experienced CONTRACTOR to provide
architectural and engineering consulting services as described in Exhibit A – Scope of Services attached
hereto (“Services”); and
WHEREAS, The City has chosen CONTRACTOR to provide the Services following a
competitive procurement process wherein Solicitation No. 13-051 Request for Qualifications (“RFQ”) –
Architectural and Engineering Consulting Services for the Final Design of the Rubey Park Transit
Center, attached as Exhibit F and incorporated herein by reference, was issued, and CONTRACTOR
submitted a Statement of Qualifications in response to the RFQ, attached hereto as Exhibit E and
incorporated herein; and
WHEREAS, the CONTRACTOR has represented to The City that it is sufficiently qualified and
experienced to provide those services described in Exhibit A and The City has relied on such
representations.
NOW, THEREFORE, in consideration of the mutual understandings and agreements set forth, The
City and the CONTRACTOR agree as follows:
ARTICLE 1 – SCOPE OF SERVICES
The required Services are as enumerated and described in Exhibit A – Scope of Services, which
document is attached hereto and incorporated herein.
ARTICLE 2 – COMPENSATION AND PAYMENT
The terms for Compensation and Payment are set forth in Exhibit B – Compensation and Method of
Payment for Professional Services, attached hereto and incorporated herein.
ARTICLE 3 – TERM OF CONTRACT
CONTRACTOR shall commence the Services on the Effective Date set forth above. The City shall
have the option to renew the contract for three (3) additional twelve (12) month periods beginning on
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
January 1, 2015, subject to annual appropriations. Any extension of the Term of Contract will be in
writing and signed by both parties to the Contract in the form of a Contract Amendment as set forth in
Article 12 below.
Notwithstanding anything to the contrary contained in this Contract, no charges shall be made to The
City nor shall any payment be made to the CONTRACTOR in excess of the amount for any services
provided without written approval in accordance with a budget adopted by the City Council in
accordance with provisions of the Colorado Revised Statutes. Moreover, the parties agree that The City
is a governmental entity and that all obligations beyond the current fiscal year are subject to funds being
budgeted and appropriated.
ARTICLE 4 – NEGOTIATED RATE
The contract is a Fixed-Price, Labor Hour contract based upon the negotiated hourly labor rates as
specified in Exhibit B – Compensation and Method of Payment.
(1) The Contract will be based upon the CONTRACTOR’S submitted fee schedule; however, The
City reserves the right to negotiate fees for any specific project.
(2) The total dollar amount of the Contract as specified in Exhibit B – Compensation and Method of
Payment may only be modified by written agreement of both parties to the Contract in the form
of a Contract Amendment as specified in Article 12 below.
(3) The negotiated hourly labor rates may only be modified by written agreement of both parties to
the Contract in the form of a Contract Amendment as specified in Article 12 below.
ARTICLE 5 – ORDER OF PRECEDENCE OF THE CONTRACT DOCUMENTS
In the event of inconsistency between provisions of the Contract Documents, the inconsistency will be
resolved by giving precedence in the following order:
(1) Contract Amendments;
(2) This Professional Services Contract between The City of Aspen and Scott A. Lindenau,
Architect, P.C. d.b.a. Studio B Architecture & Interiors, including Attachment B – Compensation
and Method of Payment for Goods and Services;
(3) Attachment A – Scope of Services;
(4) Attachment E – Solicitation No. 13-051 Request for Qualifications for Architectural &
Engineering Consulting Services for the Final Design of the Rubey Park Transit Center, fully-
conformed and inclusive of all addenda to the RFQ.
ARTICLE 6 – PROJECT AUTHORIZATION AND PERFORMANCE
Following contract execution, The City will issue a “Notice to Proceed” to CONTRACTOR, which shall
authorize and direct CONTRACTOR to begin work on the Contract. The CONTRACTOR shall begin
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
work no later than seven (7) calendar days after the effective date of the Notice to Proceed for the
Contract, or three (3) calendar days after receipt of the Notice to Proceed, whichever is later.
ARTICLE 7 – THE PROJECT MANAGER
The Project Manager for this Contract is John D. Krueger, Director of Transportation, unless otherwise
designated in writing by the City Manager.
ARTICLE 8 – INDEPENDENT CONTRACTOR
CONTRACTOR shall perform the Services required under this Contract as an Independent Contractor,
not as an agent or employee of The City. CONTRACTOR has no authority to make any statement,
representation, or commitment of any kind or to take any action binding upon The City, without The
City’s written authorization. The City is only interested in the results achieved by the Services
performed by the CONTRACTOR; the manner of legally achieving those results is the responsibility of
the CONTRACTOR.
All of the Services required by this Contract shall be performed by CONTRACTOR or under its
supervision, and all personnel engaged in the Services shall be fully qualified.
Furthermore, it is understood that The City will not provide insurance or benefits of any nature to the
CONTRACTOR, its employees, or subcontractors.
The CONTRACTOR agrees that it presently has no interest and shall not acquire any interest, direct or
indirect, which would conflict in any manner or degree with the performance of its Services hereunder.
The CONTRACTOR further agrees that in the performance of the Contract, no person having any such
interests shall be employed.
ARTICLE 9 – INVOICING AND PAYMENT
(1) The City will pay CONTRACTOR, as full and complete compensation for completion of the
Services and assuming all duties, responsibilities, and obligations under the Contract, costs
pursuant to Exhibit B – Compensation and Method of Payment for Professional Services of this
Contract.
(2) In accordance with the requirements of Exhibit B – Compensation and Method of Payment for
Professional Services of this Contract, CONTRACTOR shall submit to The City’s Project
Manager complete, properly supported and audit-worthy invoices for the Services performed.
CONTRACTOR may submit no more than one (1) invoice to The City for every 30 calendar
days of the Term of Contract.
(3) The City will make payment to CONTRACTOR, conditioned upon compliance by
CONTRACTOR with all other provisions of the Contract and CONTRACTOR furnishing The
City with the following:
i. CONTRACTOR's properly supported and audit-worthy invoices for the Services
performed.
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
ii. Proof satisfactory to The City that there are no unsatisfied claims and that no
other indebtedness exists in connection with the Services.
iii. All documents, records, correspondence, and deliverables which CONTRACTOR
and other persons performing the Services are required to provide to The City
under the Contract.
(4) The invoices shall be in a form satisfactory to The City and shall reference The City Contract
No. 2013-142. The invoices shall be submitted to The City’s Project Manager at the following
address:
Original Invoice to:
The City of Aspen
130 South Galena
Aspen, CO 81611
ATTN: John D. Krueger, Director of Transportation
(5) Payment terms are net 30 calendar days following receipt of a correct and audit worthy invoice
by The City.
(6) The invoices submitted to The City for payment shall include the applicable The City contract
number; total invoice amount (including itemized amounts charged for labor and materials); total
number of labor hours expended and labor billing rates; invoice billing period; description of the
Services performed during the invoice billing period (including completed Deliverables); and
any other information that The City may reasonably require.
(7) The presentation of the invoices by CONTRACTOR to The City as set forth in this Article
constitutes an express warranty and representation by CONTRACTOR to The City that the
Services have progressed to the point indicated and that the quality of the Services is in
accordance with this Contract.
(8) No approval of any invoice, nor any payment, final or otherwise, nor any use or approval of
deliverables by The City shall itself constitute Acceptance of the Services.
(9) The City may withhold all or part of any amounts due CONTRACTOR to protect The City from
a loss, including but not limited to, losses caused by the following:
i. Failure of CONTRACTOR to make proper payments to its subcontractors for
Services.
ii. Failure of CONTRACTOR to carry out and/or remedy the Services in accordance
with the Contract.
iii. CONTRACTOR’s breach of warranties.
(10) By acceptance of final payment under the Contract, CONTRACTOR waives any and all
further claims against The City arising out of or in connection with performance of the
Services performed under the Contract.
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
(11) CONTRACTOR shall maintain books and records supporting all amounts invoiced to The
City. CONTRACTOR shall preserve such books and records for the duration of this Contract
and for three (3) years thereafter, during which time The City and its representatives shall have
access to such books and records and shall have the right to make any copies thereof for the
purpose of auditing or verifying invoices or for any other reasonable business purpose.
(12) CONTRACTOR warrants and represents that all books and records specified above shall be
complete and accurate and that The City may rely on such records and books for any purposes.
If CONTRACTOR becomes aware that such records are inaccurate or incomplete,
CONTRACTOR will promptly notify The City in writing.
ARTICLE 10 – EMPLOYMENT OF THE CITY’S PERSONNEL
The CONTRACTOR shall not employ any person or persons in the employ of The City for any work
required by the terms of this Contract without the written permission of The City, except as may
otherwise be provided for herein.
ARTICLE 11 – REVIEW OF WORK
Authorized representatives of The City may, at all reasonable times review and inspect the Services,
financial reports, and data collected under the terms of this Contract and any amendments thereto. All
reports, drawings, studies, specifications, estimates, maps, and computations prepared by or for the
CONTRACTOR pursuant to this Contract, shall be available to authorized representatives of The City
for inspection and review at all reasonable times. Acceptance shall not relieve the CONTRACTOR of
its professional obligation to correct, at its expense, any of its negligent errors in the work.
ARTICLE 12 – CHANGES
(1) The City shall have the right, without additional consent from CONTRACTOR and without
invalidating the Contract, to add, delete, or change the required Services.
(2) Contract Amendments. The City shall issue Contract Amendments to make additions, deletions,
or changes to the required Services. To initiate a Contract Amendment, The City shall send
CONTRACTOR a Request for Contract Amendment. Upon receipt, CONTRACTOR shall
prepare an estimate of the effects of the change on the Contract Budget and/or Term of Contract.
Upon agreement between CONTRACTOR and The City on the effects of the change, The City
will issue a Contract Amendment specifying any change to the Contract Budget or the Term of
Contract.
(3) The Contract Budget and/or Term of Contract shall be subject to adjustment only by Contract
Amendment(s).
ARTICLE 13 – SUBSTANTIAL CHANGES
If, prior to the satisfactory completion of the Services required under this Contract, The City materially
alters the scope, character, complexity, or duration of the Services from those required under the
Contract, a Contract Amendment may be executed between the parties.
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
Minor changes in the Services which do not involve increased compensation, extensions of time or
changes in the goals and objectives of the Services may be made by written notification of such change
by either The City or the CONTRACTOR with written approval by the other party.
ARTICLE 14 – ERRORS AND OMISSIONS
(1) No advantage shall be taken by the Contractor in the omission of any part or detail which goes to
make the execution of the service complete even though such part or detail is not named in the Scope
of Service.
(2) If the CONTRACTOR’s designs, drawings or specifications contain errors or deficiencies, the
CONTRACTOR shall be required to correct the errors or deficiencies at no increase in price to The
City. When errors are discovered during construction, the CONTRACTOR is liable for correction of
the design, drawings or specifications at their own cost, and for the difference between what the
“correct” construction will cost (as a change order issued to the construction contractor) and what it
would have cost in the original contract had the drawings been correct. This includes any tear-out
that needs to be performed.
ARTICLE 15 – INDEMNIFICATION
(1) Professional Liability. The CONTRACTOR shall exercise in its performance of the Services the
standard of care normally exercised by nationally recognized organizations engaged in
performing comparable services. The CONTRACTOR shall be liable to The City for any loss,
damages or costs incurred by The City for the repair, replacement or correction of any part of the
project which is deficient or defective as a result of any failure of the CONTRACTOR to comply
with this standard.
(2) Indemnification. To the fullest extent permitted by law and except for all professional liability
claims, damages, losses and expenses, the CONTRACTOR shall indemnify, defend, and hold
harmless The City and its agents and employees from and against all claims, damages, losses and
expenses, including but not limited to attorneys' fees, arising out of or resulting from the
performance of the Services, provided that any such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible
property (other than the project itself) including the loss of use resulting there from, but only to
the extent caused by the negligent act or omission of, or breach of contract by, the
CONTRACTOR, any subcontractor of the CONTRACTOR, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable.
To the fullest extent permitted by law, the CONTRACTOR shall indemnify and hold harmless
The City and its agents and employees from and against all professional liability claims,
damages, losses and expenses, including but not limited to attorneys' fees, arising out of or
resulting from the performance of the Services, provided that any such claim, damage, loss or
expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction
of tangible property (other than the project itself) including the loss of use resulting there from,
but only to the extent caused by the negligent act or omission of, or breach of contract by, the
CONTRACTOR, any subcontractor of the CONTRACTOR, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable.
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
Such obligations shall not be construed to negate, abridge, or otherwise reduce any other right or
obligation of indemnity which would otherwise exist as to any party or person described in this
Contract. The City may, if it so desires, withhold the payments due the CONTRACTOR so long
as shall be reasonably necessary to indemnify The City on account of such injuries.
In any and all claims against The City or any of its agents or employees by any employee of the
CONTRACTOR, any subcontractor of the CONTRACTOR, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable, the
indemnification obligations under this Contract shall not be limited in any way by any limitation
on the amount or type of damages, compensation or benefits payable by or for the
CONTRACTOR or any subcontractor.
The parties agree that nothing contained herein waives or is intended to waive any protections
that may be applicable to The City under the Governmental Immunity Act, §24-10-101 et. seq.,
C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided
by law, and subject to any applicable provisions of the Colorado Constitution and applicable
laws.
ARTICLE 16 – INSURANCE
(1) Procurement – CONTRACTOR and its subcontractors shall procure and maintain, until all of
their obligations have been discharged, including until any warranty periods under this Contract
are satisfied, insurance against claims for injury to persons or damage to property which may
arise from or in connection with the performance of the Work performed hereunder by the
CONTRACTOR, its agents, representatives, employees, or subcontractors.
(2) Minimum Requirements – The insurance requirements herein are minimum requirements for this
Contract. The City in no way warrants that the minimum limits contained herein are sufficient to
protect the CONTRACTOR from liabilities that might arise out of the performance of the Work
under this Contract by the CONTRACTOR, its agents, representatives, employees, or
subcontractors and CONTRACTOR is free to purchase such additional insurance as may be
determined necessary.
(3) CONTRACTOR shall procure and maintain in effect the following types of insurance at least as
broad and with limits of liability not less than those stated below.
a. Commercial General Liability Insurance - Occurrence form including bodily injury,
property damage, premises and operations coverage, products and completed operations
coverage, coverage for independent contractors, personal and advertising injury coverage,
and broad form contractual liability.
Limits of Liability
General Aggregate: $2,000,000
Each Occurrence: $1,000,000
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
b. Workers Compensation and Employer’s Liability Insurance
Limits of Liability
Workers Compensation: Colorado Statutory Limits
EL: Bodily Injury by Accident – per employee: $100,000
EL: Bodily Injury by Disease – per employee: $100,000
Employer’s Liability (EL) Policy Limits: $500,000
c. Business Automobile Liability
Limits of Liability
Combined Single Limit (Bodily Injury & Property Damage): $1,000,000
d. Professional Liability
Limits of Liability
General Aggregate: $1,000,000
(4) Primary Insurance – The CONTRACTOR’s insurance coverage shall be primary insurance with
respect to The City, its City Council, officials, agents, and employees. Any insurance or self-
insurance maintained by The City, its officers, officials, agents, or employees shall be in excess
to the coverage of the CONTRACTOR’s insurance and shall not contribute to it.
(5) The City as Additional Insured – The City shall be named as an additional insured party under
the CONTRACTOR’s Business Automobile Liability and Commercial General Liability
policies, providing that such insurance is primary with respect to claims made by The City, and
these policies shall be occurrence-based policies, and shall specifically provide that all coverage
limits are exclusive of costs of defense, including attorney fees. The CONTRACTOR shall
provide certificates of insurance to The City indicating compliance with this paragraph.
(6) Waiver of Subrogation – CONTRACTOR and The City waive all rights against
a. each other and any of their vendors, agents and employees, each of the other, and
b. The City, CONTRACTOR, and any of their contractors, subcontractors, agents and
employees for damages caused by fire or other perils to the extent covered by property
insurance provided under the contract or other property insurance applicable to the Work,
except such rights as they may have to proceeds of such insurance held by The City as
fiduciary.
(7) CONTRACTOR shall require its agents and employees, by appropriate agreements, written
where legally required for validity, to obtain similar waivers in favor of other parties enumerated
herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A
waiver of subrogation shall be effective as to a person or entity even though that person or entity
would otherwise have a duty of indemnification, contractual or otherwise, did not pay the
insurance premium directly or indirectly, and whether or not the person or entity had an insurable
interest in the property damaged. This requirement for a waiver of subrogation does not apply to
CONTRACTOR’s Professional Liability insurance policy.
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Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
(8) CONTRACTOR and Subcontractors – CONTRACTOR shall require all of its subcontractors to
provide the aforementioned coverage at levels that the CONTRACTOR and its subcontractors
may consider necessary and any deficiency in the coverage or policy limits of the subcontractors
will be the sole responsibility of CONTRACTOR.
(9) Contractual Liability – The insurance provisions in this Contract in no way affect the liability of
CONTRACTOR or the indemnity covenants stated elsewhere in this Contract.
(10) Deductibles and Self-Insured Retention – All deductibles and/or self-insured retention amounts
must be declared to and approved by The City. At the option of The City, the insurer shall
either reduce or eliminate such deductibles or self-insured retentions with respect to The City,
its City Council, officials, agents, or employees.
(11) Acceptability of Insurers – Insurance is to be placed with insurers duly licensed in the State of
Colorado and with an “A.M. Best” rating of not less than “A:VII” at the time of placement of
the insurance policies. The City in no way warrants that the above required minimum insurer
rating is sufficient to protect the CONTRACTOR from potential insurer insolvency.
(12) Certificates of Insurance – Before commencing performance on the Contract, CONTRACTOR
and its subcontractors must furnish certificates(s) of insurance (using ACORD form or
equivalent) to The City evidencing:
a) Insurance coverage acceptable to The City.
b) Signature by person authorized by insurer to bind coverage on its behalf.
c) Effective expiration dates of policies.
d) The City must be given written notice, in accordance with policy terms, of all cancellation,
non-renewable, or material changes in policy.
e) The City is added as Additional Insured party on the Commercial General Liability and
Business Automobile Liability policies.
f) A waiver of subrogation endorsement has been attached to the Worker’s Compensation and
General Liability policies.
g) Any deductible and/or self-insured retention.
h) Any policy endorsements that restrict or limit coverage.
i) Any exclusion(s) to the policy which are not part of the standard form.
j) Certificate of Insurance title block format is as follows: The City of Aspen, 130 South
Galena, Aspen, CO 81611, ATTN: John D. Krueger, Director of Transportation.
CONTRACTOR shall also provide The City with 30 days written notice of all Contractor-
initiated cancellation, non-renewal, or material changes of Policy of Insurance. Failure to
maintain the insurance policies as required by this Contract or to provide evidence of renewal is
a material breach of the Contract.
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Contract No.: 2013-142
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Grants: CDOT FASTER; FHWA Federal Lands Access Program
ARTICLE 17 – SUBLETTING, ASSIGNMENT, OR TRANSFER
It is understood by the parties to this Contract that the work of the CONTRACTOR is considered
personal by The City. The CONTRACTOR agrees not to assign, sublet, or transfer any or all of its
interest in this Contract without prior written approval by The City.
The City reserves the right to review all subcontracts prepared in connection with the Contract, and the
CONTRACTOR agrees that it shall submit to The City any proposed subcontract documents together
with subcontractor cost estimates for review and written concurrence of The City no later than five (5)
business days in advance of their execution.
Any contract between the CONTRACTOR and any subcontractor shall comply with all provisions of
this Contract. The City’s approval of any assignment, sublet, or transfer shall not release the
CONTRACTOR of any obligation under this Contract. As between The City and the CONTRACTOR,
the CONTRACTOR shall be fully responsible for the acts and omissions of the subcontractors and
persons either directly or indirectly employed by the CONTRACTOR. Nothing contained in this
Contract shall create any contractual relation between any subcontractor and The City.
All subcontracts in the amount of $10,000.00 or more shall include the provisions set forth in this
Contract.
ARTICLE 18 – TERMINATION
(1) Termination for Cause: If the CONTRACTOR fails to perform in the manner called for in this
Contract or if the CONTRACTOR fails to comply with any other provisions of this Contract,
The City may terminate this Contract for cause. Termination shall be effected by serving a
notice of termination on the CONTRACTOR setting forth the manner in which the
CONTRACTOR has breached or is in default. The CONTRACTOR will only be paid the
contract price for services performed in accordance with the manner of performance set forth in
this Contract.
If it is later determined by The City that the CONTRACTOR has an excusable reason for not
performing, such as a strike, fire, flood or other events which are not the fault of or are beyond
the control of the CONTRACTOR, The City, after setting up a new delivery of performance
schedule, may allow the CONTRACTOR to continue work or treat the termination as a
termination of convenience.
The City in its sole discretion may, in the case of a termination for cause, allow the
CONTRACTOR an appropriate period of time to cure the breach or default. In such case, the
notice of termination will state the time period in which cure is permitted and other appropriate
conditions. If the CONTRACTOR fails to remedy to The City’s satisfaction the breach or
default, The City shall have the right to terminate this Contract without any further obligation to
the CONTRACTOR. Any such termination for breach or default shall not in any way operate to
preclude The City from also pursuing all available remedies against the CONTRACTOR and its
sureties for said breach or default.
(2) Termination for Convenience: The City may terminate this Contract for its convenience at any
time by giving written notice to the CONTRACTOR of such termination and specifying the
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effective date thereof, at least five (5) business days before the effective date of such termination.
If the Contract is terminated by The City for convenience, the CONTRACTOR will be paid
compensation for those Services actually performed. Partially completed tasks will be
compensated for based on a signed statement of completion to be submitted by the
CONTRACTOR which shall itemize each task element and briefly state what work has been
completed and what work remains to be done.
ARTICLE 19 – APPLICABLE LAWS AND VENUE AND CONTRACT DISPUTES
This Contract shall be governed by the laws of the State of Colorado. This Contract shall be deemed
entered into in Pitkin County, State of Colorado. At The City's option, the location for settlement of any
and all claims, controversies and disputes arising out of or related to this Contract or any breach thereof,
whether by alternative dispute resolution or litigation, shall be proper only in either county.
Disputes arising in the performance of this Contract, which are not resolved by agreement of the parties,
shall be decided in writing by the City Manager prior to any commencement of an action in court or
alternate dispute resolution concerning any disputes. The decision of the City Manager will state the
reason for the action taken and shall inform the CONTRACTOR of its right to administrative review by
the Aspen City Council acting as the City’s Procurement Appeals Board. The decision of the City
Manger shall be final and conclusive unless within 60 calendar days from the date of delivery of the
decision to the CONTRACTOR, the CONTRACTOR delivers a written appeal to the City Attorney for
consideration by the City Procurement Appeals Board.
In connection with any such appeal, the CONTRACTOR shall be afforded an opportunity to submit
written evidence in support of its position. The appeals proceeding shall be de novo. A decision on the
appeal shall be made by the City Council acting as the City Procurement Appeals Board and shall
become binding upon the CONTRACTOR unless within 60 calendar days from the date of delivery of
the decision to the CONTRACTOR, the CONTRACTOR delivers a written request to the City Attorney
for alternative dispute resolution or litigation. Unless otherwise directed by The City, CONTRACTOR
shall continue performance under this Contract while matters in dispute are being resolved.
In addition to the requirements of Article 22 in this Contract entitled "Notices", a copy of any written
notices, appeals, and documents pertaining to a contract dispute under this Article shall also be delivered
to The City’s Procurement Officer and Attorney.
CONTRACTOR agrees that the economic loss rule shall not serve as a limitation on The City’s right to
pursue tort remedies in addition to other remedies it may have against CONTRACTOR. Such rights and
remedies shall survive the project or any termination of this Contract.
ARTICLE 20 – SEVERABILITY
If any provision of this Contract is held to be invalid, illegal, or unenforceable for any reason, the
validity, legality, and enforceability of the remaining provisions of this Contract will not be adversely
affected.
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ARTICLE 21 – ASSIGNABILITY
The covenants herein contained shall, except as otherwise provided, accrue to the benefit of and be
binding upon the successors and assigns of the parties hereto.
ARTICLE 22 – NOTICES
(1) All official notices and communications under this Contract shall be in writing and shall be deemed
to have been duly given (i) on the date of delivery if delivered personally to the party to whom
notice is given, or (ii) at the date of actual receipt if mailed by U.S. Postal Service, postage prepaid,
return receipt requested.
(2) Notices and other communications shall be directed to the parties at the addresses listed below:
Notice to CONTRACTOR:
Studio B Architecture + Interiors
ATTN: Scott Lindenau, AIA, President
501 Rio Grande Place, #104
Aspen, Colorado 81611
Copy to: Gilbert Sanchez, AIA, Principal
Notice to the City:
City of Aspen
ATTN: Rebecca Hodgson, City of Aspen, Procurement Officer
130 South Galena
Aspen, CO 81611
Copy to: John Krueger, City of Aspen, Director of Transportation
(3) Telephonic and electronic mail communications and facsimile transmittals may be used to expedite
communications, but neither shall be considered official communications under this Contract unless
and until confirmed in writing in accordance with this Article 22, paragraph (1) above.
ARTICLE 23 – OWNERSHIP OF DOCUMENTS
The CONTRACTOR agrees that all reports, drawings, computer disks, specifications, survey notes,
estimates, maps, computations, and other data prepared by or for it under the terms of this Contract shall
be delivered to, become, and remain the property of The City upon termination or completion of the
work. The City shall have the right, at its sole risk, to use the same without restriction or limitation and
without compensation to the CONTRACTOR other than that provided for in this Contract. In the event
of reuse by The City, The City shall indemnify, defend and hold harmless CONTRACTOR from any
and all claims or demands arising from such reuse by The City. The CONTRACTOR shall not have the
right to use same for sale or other benefit without express written permission from The City, which
permission shall not be unreasonably withheld. CONTRACTOR shall be allowed to retain a copy of the
same for its records and as may be required by law
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ARTICLE 24 – PATENT AND RIGHTS IN DATA
If patentable discoveries or inventions should result from work described herein, all rights accruing from
such discoveries or inventions will be the sole property of The City. However, The City agrees to and
does hereby grant to the CONTRACTOR an irrevocable, non-exclusive, non-transferable, and royalty-
free license to practice each invention in the manufacture, use, and disposition according to law of any
article or material and in use of any method that may be developed as a part of the work under this
Contract.
ARTICLE 25 – COPYRIGHTING
The CONTRACTOR and The City agree that any papers, interim reports, forms, and any other material
which are part of the Work under this Contract are to be deemed a “work for hire,” as such term is
defined in the Copyright Laws of the United States. As a “work made for hire”, all copyright interests in
said works will vest in The City upon creation of the copyrightable work. If any papers, interim reports,
forms, or other material which are a part of work under this Contract are deemed by law not to be a
“work for hire”, any copyright interests of the CONTRACTOR are hereby assigned completely and
solely to The City. Publication rights to any works produced under this Contract are reserved by The
City.
ARTICLE 26 – PUBLICATION AND PUBLICITY
Articles, papers, bulletins, data, studies, statistics, interim or final reports, oral transmittals, or any other
materials reporting the plans, progress, analyses, results, or findings of work conducted under this
Contract shall not be presented publicly or published without prior written approval by The City.
All releases of information, findings, and recommendations shall include a disclaimer provision and all
published reports shall include that disclaimer on the cover and title page in the following form:
"The contents of this publication reflect the views of the author(s), who is (are) responsible for the facts
and accuracy of the data presented herein. The opinions, findings, and conclusions in this publication
are those of the author(s) and do not necessarily reflect the official views or policies of those of the City
of Aspen, or the United States Department of Transportation or any of its’ subsidiaries. This
publication does not constitute a standard, specification, or regulation."
If any information concerning the Services, their conduct, results, or data gathered or processed should
be released by the CONTRACTOR without prior approval from The City, the release of same shall
constitute grounds for termination of this Contract without indemnity to the CONTRACTOR. In
addition, the CONTRACTOR shall indemnify and hold harmless The City, its officers, employees, and
agents from any liability arising from such unauthorized release of data.
Any request for information directed to the CONTRACTOR, pursuant to the Colorado Open Records
Act, by the public shall be immediately redirected to The City for handling. The City shall be
responsible for providing the response to requests under the Colorado Open Records Act. The
CONTRACTOR acknowledges and agrees that all records of the Services and the work, including
records of the CONTRACTOR and its subcontractors are subject to the Colorado Open Records Act,
C.R.S. 24-72-201 through 24-72-309 et seq.
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ARTICLE 27 – COVENANT AGAINST CONTINGENT FEES
The CONTRACTOR shall comply with all relevant requirements of all Federal, State, and local laws.
The CONTRACTOR warrants that it has not employed or retained any company or person, other than a
bona fide employee working solely for the CONTRACTOR, to solicit or secure this Contract, and that it
has not paid or agreed to pay any company or person, other than a bona fide employee working solely
for the CONTRACTOR, any fee, commission, percentage, brokerage fee, gifts, or any other
consideration, contingent upon or resulting from the award or making of this Contract. For breach or
violation of this warranty, The City shall have the right to annul this Contract without liability, or in its
discretion, to deduct from the Contract price or consideration, or otherwise recover, the full amount of
such fee, commission, percentage, brokerage fee, gift, or contingent fee.
ARTICLE 28 – CONFLICTS OF INTEREST
The City employees and Council are bound by the City of Aspen’s Code of Ethics and Standards of
Conduct. The City Code of Ethics and Standards of Conduct prohibits City employees and Council
engaged in the award and administration of contracts, or any person acting on their behalf, from
accepting, directly or indirectly, any gift with a value of more than a nominal amount, including meals
or tickets to sporting events, from any person with whom the employee interacts on official The City
business. Therefore, CONTRACTOR, or its subcontractors or suppliers, may not make gifts or favors to
any The City employee or Council. It is a violation of the City Code of Ethics and Standards of Conduct
for any City employee to accept any such gift or favor.
ARTICLE 29 – WARRANTIES
The CONTRACTOR shall exercise in its performance of the Services the standard of care normally
exercised by nationally recognized organizations engaged in performing comparable services.
CONTRACTOR further warrants and agrees that it, and any persons assigned by CONTRACTOR, shall
perform this Contract in compliance with all relevant requirements of federal, state, and local laws,
statutes, acts, ordinances, rules, regulations, codes, or standards.
ARTICLE 30 – NONWAIVER
No failure or waiver or successive failures or waivers on the part of either party, its successors or
permitted assigns, in the enforcement of any condition, covenants, or article of this Contract shall
operate as a discharge of any such condition, covenant, or article nor render the same invalid, nor impair
the right of either party hereto, their successors or permitted assigns, to enforce the same in the event of
any subsequent breaches by the other party hereto, its successors or permitted assigns.
ARTICLE 31 – MERGER
This Contract constitutes the entire agreement of the parties, all prior discussions, representations, and
agreements being merged herein. The Contract may not be changed, modified, extended, or amended,
nor any provision thereof waived, except by a written amendment executed by duly authorized
representatives of the respective parties. The captions in this Contract are for convenience only and
shall not affect the substantive meaning of any provision herein.
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ARTICLE 32 – NO THIRD PARTY RIGHTS
Except as expressly set forth herein, the representations, warranties, terms, and provisions of this
Contract are for the exclusive benefit of the parties hereto and no other person or entity shall have any
right or claim against either party by reason of any of these terms and provisions or be entitled to
enforce any of these terms and provisions against either party.
ARTICLE 33 – ATTACHMENTS
Any attachment or exhibit to this Contract will be incorporated into and made a part of this Contract. In
the event of a conflict between the provisions contained in the body of this Contract and any attachment
or exhibit, the terms in the body of this Contract will control.
ARTICLE 34 – SEPARATE COUNTERPARTS
This Contract may be executed in one or more counterparts, each of which, when so executed, shall be
deemed to be an original. Such counterparts shall together constitute and be one and the same
instrument.
ARTICLE 35 – IMMIGRATION COMPLIANCE
To the extent this Contract constitutes a public contract for services pursuant to C.R.S. 8-17.5-101 et
seq., the following provisions shall apply:
(1) CONTRACTOR certifies that, prior to executing this Contract, it has confirmed the employment
eligibility of all employees who are newly hired for employment to perform work under this
Contract through participation in either the E-verify program administered by the United States
Department of Homeland Security and the Social Security Administration (the “E-verify
Program”), or the employment verification program administered by the Colorado Department of
Labor and Employment (the “Colorado Verification Program”).
(2) CONTRACTOR shall comply with all reasonable requests by the Colorado Department of Labor
and Employment made in the course of an investigation undertaken pursuant to the authority
established in C.R.S. 8-17.5-102(5).
(3) To the extent required by C.R.S. 8-17.5-102(1), by submitting a proposal or bid, the
CONTRACTOR certifies that at the time of proposal or bid submission it did not knowingly
employ or contract with an illegal alien who will perform work under this Contract, and that the
CONTRACTOR will participate in the E-verify Program or the Colorado Verification Program
in order to verify the employment eligibility of all employees who are newly hired for
employment to perform work under this Contract.
ARTICLE 36 – REGULATORY COMPLIANCE
The work to be performed as the Services under this Contract may be financed, in part, by grants
provided under programs of the Federal Transit Act, as amended, and as such is subject to the Terms and
Conditions set forth in the grant agreements. CONTRACTOR understands that Federal laws,
regulations, policies, and related administrative practices applicable to the Contract may be modified
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from time to time. CONTRACTOR acknowledges that the most recent of such Federal requirements
will govern the Contract at any particular time, unless the Federal Government determines otherwise.
Likewise, new Federal laws, regulations, policies, and administrative practices may be established after
the Contract is executed and may apply to the Contract. The laws and regulations detailed in this
Contract include, but are not limited to, those that will be applicable to the Contract. To the extent
applicable, CONTRACTOR shall comply with the Federal, State, and Locally imposed requirements
contained in this Contract.
ARTICLE 37 – NO GOVERNMENT OBLIGATION TO THIRD PARTIES
(1) THE CITY and CONTRACTOR acknowledge and agree that, notwithstanding any concurrence
by the Federal Government in or approval of the solicitation or award of the underlying Contract,
absent the express written consent by the Federal Government, the Federal Government is not a
party to this Contract and shall not be subject to any obligations or liabilities to THE CITY,
CONTRACTOR, or any other party (whether or not a party to that Contract) pertaining to any
matter resulting from the underlying Contract.
(2) The CONTRACTOR agrees to include the above clause in each subcontract financed in whole or
in part with Federal assistance provided by FHWA or other USDOT agency. It is further agreed
that the clause shall not be modified, except to identify the subcontractor who will be subject to
its provisions.
ARTICLE 38 – PROGRAM FRAUD AND FALSE OR
FRAUDULENT STATEMENTS OR RELATED ACTS
(1) The CONTRACTOR acknowledges that the provisions of the Program Fraud Civil Remedies
Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud
Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Contract. Upon
execution of the underlying Contract, the CONTRACTOR certifies or affirms the truthfulness
and accuracy of any statement it has made, it makes, it may make, or causes to be made,
pertaining to the underlying Contract or the FHWA assisted project for which this Contract work
is being performed. In addition to other penalties that may be applicable, the CONTRACTOR
further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent
claim, statement, submission, or certification, the Federal Government reserves the right to
impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the CONTRACTOR
to the extent the Federal Government deems appropriate.
(2) The CONTRACTOR also acknowledges that if it makes, or causes to be made, a false, fictitious,
or fraudulent claim, statement, submission, or certification to the Federal Government under a
contract connected with a project that is financed in whole or in part with Federal assistance
originally awarded by FHWA under authority of 49 U.S.C. § 5307, the Government reserves the
right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the
CONTRACTOR, to the extent the Federal Government deems appropriate.
(3) The CONTRACTOR agrees to include the above two clauses in each subcontract financed in
whole or in part with Federal assistance provided by FHWA. It is further agreed that the clauses
shall not be modified, except to identify the subcontractor who will be subject to the provisions.
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ARTICLE 39 – ACCESS TO RECORDS
The following access to records requirements apply to this Contract:
(1) Where the Purchaser (The City) is the FHWA Recipient or a subgrantee of the FHWA Recipient
in accordance with 49 C. F. R. 18.36(i), the CONTRACTOR agrees to provide the Purchaser
(The City), the FHWA Administrator, the Comptroller General of the United States or any of
their authorized representatives access to any books, documents, papers, and records of the
CONTRACTOR which are directly pertinent to this Contract for the purposes of making audits,
examinations, excerpts and transcriptions.
(2) The CONTRACTOR agrees to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed.
(3) The CONTRACTOR agrees to maintain all books, records, accounts, and reports required under
this Contract for a period of not less than three (3) years after the date of termination or
expiration of this Contract, except in the event of litigation or settlement of claims arising from
the performance of this Contract, in which case CONTRACTOR agrees to maintain same until
the Purchaser (The City), the FHWA Administrator, the Comptroller General, or any of their
duly authorized representatives, have disposed of all such litigation, appeals, claims or
exceptions related thereto. Reference 49 CFR 18.39(i)(11).
(4) FHWA does not require the inclusion of these requirements in subcontracts.
ARTICLE 40 – FEDERAL CHANGES
CONTRACTOR shall at all times comply with all applicable FHWA regulations, policies, procedures,
and directives, including without limitation those listed directly or by reference in the Master Agreement
between Purchaser (The City) and FHWA, as they may be amended or promulgated from time to time
during the term of this Contract. CONTRACTOR’s failure to so comply shall constitute a material
breach of this Contract.
ARTICLE 41 – CIVIL RIGHTS
The following requirements apply to the underlying Contract:
(1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C.
§ 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102,
section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal
transit law at 49 U.S.C. § 5332, the CONTRACTOR agrees that it will not discriminate against
any employee or applicant for employment because of race, color, creed, national origin, sex,
age, or disability. In addition, the CONTRACTOR agrees to comply with applicable Federal
implementing regulations and other implementing requirements FHWA may issue.
(2) Equal Employment Opportunity - The following equal employment opportunity requirements
apply to the underlying Contract:
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a. Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil
Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332,
the CONTRACTOR agrees to comply with all applicable equal employment opportunity
requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal
Contract Compliance Programs, Equal Employment Opportunity, Department of Labor",
41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal
Employment Opportunity", as amended by Executive Order No. 11375, "Amending
Executive Order 11246 Relating to Equal Employment Opportunity", 42 U.S.C. § 2000e
note), and with any applicable Federal statutes, executive orders, regulations, and Federal
policies that may in the future affect construction activities undertaken in the course of
the Contract. The CONTRACTOR agrees to take affirmative action to ensure that
applicants are employed, and that employees are treated during employment, without
regard to their race, color, creed, national origin, sex, or age. Such action shall include,
but not be limited to, the following: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms
of compensation; and selection for training, including apprenticeship. In addition, the
CONTRACTOR agrees to comply with any implementing requirements FHWA may
issue.
b. Age - In accordance with section 4 of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, the
CONTRACTOR agrees to refrain from discrimination against present and prospective
employees for reason of age. In addition, the CONTRACTOR agrees to comply with any
implementing requirements FHWA may issue.
c. Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as
amended, 42 U.S.C. § 12112, the CONTRACTOR agrees that it will comply with the
requirements of U.S. Equal Employment Opportunity Commission, "Regulations to
Implement the Equal Employment Provisions of the Americans with Disabilities Act", 29
C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, the
CONTRACTOR agrees to comply with any implementing requirements FHWA may
issue.
(3) The CONTRACTOR also agrees to include these requirements in each subcontract financed in
whole or in part with Federal assistance provided by FHWA, modified only if necessary to
identify the affected parties.
ARTICLE 42 – DISADVANTAGED BUSINESS ENTERPRISES (DBE)
(1) This Contract is subject to the requirements of Title 49, Code of Federal Regulations, Part 26,
Participation by Disadvantaged Business Enterprises in Department of Transportation Financial
Assistance Programs. The City’s specific contract goal for DBE participation on this project has
been established at 10.25%.
(2) The CONTRACTOR shall not discriminate on the basis of race, color, national origin, or sex in
the performance of this Contract. The CONTRACTOR shall carry out applicable requirements of
49 CFR Part 26 in the award and administration of this DOT-assisted contract. Failure by the
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CONTRACTOR to carry out these requirements is a material breach of this Contract, which may
result in the termination of this Contract or such other remedy as The City deems appropriate.
Each subcontract the CONTRACTOR signs with a subcontractor must include the assurance in
this paragraph (see 49 CFR 26.13(b)).
(3) The CONTRACTOR will be required to report its DBE participation obtained through race-
neutral means throughout the Term of Contract.
(4) The CONTRACTOR is required to pay its subcontractor (s) performing work related to this
contract for satisfactory performance of that work no later than 15 calendar days after the
CONTRACTOR’s receipt of payment for that work from The City. In addition, the
CONTRACTOR may not hold retainage from its subcontractors.
(5) The CONTRACTOR must promptly notify The City, whenever a DBE subcontractor performing
work related to this Contract is terminated or fails to complete its work, and must make good
faith efforts to engage another DBE subcontractor to perform at least the same amount of work.
The CONTRACTOR may not terminate any DBE subcontractor and perform that work through
its own forces or those of an affiliate without prior written consent of The City.
ARTICLE 43 – INCORPORATION OF FEDERAL TERMS AS REQUIRED BY THE UNITED
STATES DEPARTMENT OF TRANSPORTATION (USDOT)
The preceding provisions include, in part, certain Standard Terms and Conditions required by USDOT,
whether or not expressly set forth in the preceding contract provisions. All contractual provisions
required by USDOT, are hereby incorporated by reference. Anything to the contrary herein
notwithstanding, all mandated terms shall be deemed to control in the event of a conflict with other
provisions contained in this Contract. The CONTRACTOR shall not perform any act, fail to perform
any act, or refuse to comply with anything The City requests which would cause The City to be in
violation of the USDOT’s terms and conditions.
ARTICLE 44 – ENERGY CONSERVATION
The CONTRACTOR agrees to comply with mandatory standards and policies relating to energy
efficiency which are contained in the state energy conservation plan issued in compliance with the
Energy Policy and Conservation Act.
ARTICLE 45 – DEBARMENT AND SUSPENSION
This Contract is a covered transaction for purposes of 49 CFR Part 29. As such, the CONTRACTOR is
required to verify that neither the CONTRACTOR, its principals as defined at 49 CFR 29.995, or
affiliates as defined at 49 CFR 29.905, are excluded or disqualified as defined at 49 CFR 29.940 and
29.945.
The CONTRACTOR is required to comply with 49 CFR 29, Subpart C and must include the
requirement to comply with 49 CFR 29, Subpart C in any lower tier covered transaction it enters into.
By signing and submitting its proposal, CONTRACTOR certifies as follows: The certification in this
clause is a material representation of fact relied upon by The City. If it is later determined that the
CONTRACTOR knowingly rendered an erroneous certification, in addition to remedies available to The
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City of Aspen, the Federal Government may pursue available remedies, including but not limited to
suspension and/or debarment. The CONTRACTOR agrees to comply with the requirements of 49 CFR
29, Subpart C throughout the Term of Contract. The CONTRACTOR further agrees to include a
provision requiring such compliance in its lower tier covered transactions.
ARTICLE 46 – FLY AMERICA REQUIREMENTS
The CONTRACTOR agrees to comply with 49 U.S.C. 40118 (the “Fly America” Act) in accordance
with the General Services Administration’s regulations at 41 CFR Part 301-10, which provide that
recipients and sub-recipients of Federal funds and their contractors are required to use U.S. Flag air
carriers for U.S Government-financed international air travel and transportation of their personal effects
or property, to the extent such service is available, unless travel by foreign air carrier is a matter of
necessity, as defined by the Fly America Act. The CONTRACTOR shall submit, if a foreign air carrier
was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag
air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event,
provide a certificate of compliance with the Fly America requirements. The CONTRACTOR agrees to
include the requirements of this section in all subcontracts that may involve international air
transportation.
ARTICLE 47 – TITLE VI
During the performance of this Contract, the CONTRACTOR, for itself, its assignees and successors in
interest agrees as follows:
(1) Compliance with Regulations: The CONTRACTOR shall comply with the regulations relative
to non-discrimination in federally assisted programs of the United States Department of
Transportation (“USDOT”) Title 49, Code of Federal Regulations, Part 21, as they may be
amended from time to time, (the “Regulations”), which are herein incorporated by reference and
made a part of this Contract.
(2) Non-discrimination: The CONTRACTOR, with regard to the Work performed by it during the
Contract, shall not discriminate on the grounds of race, color, or national origin in the selection
and retention of subcontractors, including procurements of materials and leases of equipment.
The CONTRACTOR shall not participate either directly or indirectly in the discrimination
prohibited by Section 21.5 of the Regulations, including employment practices when the
Contract covers a program set forth in Appendix B of the Regulations.
(3) Solicitations for Subcontracts, including procurements of Materials and Equipment: In all
solicitations either by competitive bidding or negotiation made by the CONTRACTOR for
Work to be performed under a subcontract, including procurements of materials or leases
of equipment, each potential subcontractor or supplier shall be notified by the CONTRACTOR
of the CONTRACTOR’s obligations under this Contract and the Regulations relative to non-
discrimination on the grounds of race, color, or national origin.
(4) Information and Reports: The CONTRACTOR shall provide all information and reports
required by the Regulations or directives issued pursuant thereto, and shall permit access to its
books, records, accounts, other sources of information, and its facilities as may be
determined by THE CITY or the Federal Transit Administration (“FTA”) to be pertinent
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to ascertain compliance with such Regulations, orders and instructions. Where any information
required of the CONTRACTOR is in the exclusive possession of another who fails or refuses to
furnish this information the CONTRACTOR shall so certify to THE CITY, or the FHWA as
appropriate, and shall set forth what efforts it has made to obtain the information.
(5) Sanctions for Noncompliance: In the event of the CONTRACTOR’s non-compliance with non-
discrimination provision of this Contract, THE CITY shall impose contract sanctions as it or the
FHWA may determine to be appropriate, including but not limited to:
(6) Withholding of payments to the CONTRACTOR under the Contract until the CONTRACTOR
complies; and/or
(7) Cancellation, termination, or suspension of the Contract, in whole or in part.
(8) Incorporation of Provisions: The CONTRACTOR shall include the provisions of paragraphs (1)
through (6) of this Article in every subcontract, including procurements of materials and leases
of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The
CONTRACTOR shall take such action with respect to any subcontract or procurement as The
City or the USDOT may direct as a means of enforcing such provisions including sanctions for
non-compliance provided, however, that in the event the CONTRACTOR becomes involved in,
or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the
CONTRACTOR may request The City enter into such litigation to protect the interests of The
City, and, in addition, the CONTRACTOR may request the United States federal government to
enter into such litigation to protect the interest of the United States.
[Remainder of page intentionally blank]
21
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VI.c
22
P51
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
EXHIBIT A
SCOPE OF SERVICES
[Excerpted from Solicitation No. 13-051, Part II Scope of Services]
The entire range of services required to reach the Project Milestones should be identified by the
Proposer. The following list is not intended to be a comprehensive or exclusive list of all services to be
provided during the contract term. Proposers are encouraged to include subcontractors on their teams
that can provide all of the listed services, in addition to those that are self-identified. The key project
milestones are displayed in the table below.
Proposers are expected to assess their ability to meet milestones and prepare a work plan to achieve the
milestones before proposing. Alternative approaches and milestones that achieve a building permit by
the end of March 2015 are open for negotiation.
Proposer is expected to describe their approach and capacity to meet the Expected Completion
dates listed in the table below:
MILESTONE EXPECTED
COMPLETION
NOTES ON ABILITY TO
MEET COMPLETION
DATE
Preliminary Design Completed October 2013 Completed by Schematic Design
Team
Final Design Notice to Proceed December 2013
FIR Design January 2014
FOR Design July 2014
Final Land Use Permit Approvals November 2014
Development Documentation
Recordation
December 2014
Building Permit Application December 2014
Construction Begins Mid April 2015
Construction Stops/Completed Thanksgiving 2015
2.1.1 The successful Proposer is expected to perform all tasks associated with the design and
permitting of the Rubey Park Transit Center renovations that allow construction to begin by not
later than mid-April 2015:
23
P52
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
2.1.1.1 Administration
TASKS NOTES ON ABILITY TO
COMPLETE
Manage Subcontractors
Lead Weekly Team Meetings
Prepare monthly Status Reports
Coordinate Scheduling with other City Projects
Contract Administration
Design Quality Control
Public Presentations and Outreach:
• Two (2) public Open Houses;
• Six to eight (6-8) public hearings;
• Two (2) presentations to community
groups; and,
• Two (2) presentations to Funding Partners
2.1.1.2 Civil Engineering
TASKS NOTES ON ABILITY
TO COMPLETE
• FIR Design
• Geometry
• Utilities
• Site
• Drainage
• Stormwater
• Structures
• Geology
• Traffic Control
• Electrical
• Mechanical
• Lighting
• Snowmelt (possible)
• Structural
• ADA/Pedestrian Access
24
P53
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
TASKS NOTES ON ABILITY
TO COMPLETE
Consultation and Review with impacted agencies &
departments:
• Engineering,
• Parks,
• Transportation,
• Utilities,
• Parking, and
• RFTA
• FOR Design
• Geometry
• Utilities
• Site
• Drainage
• Stormwater
• Structures
• Geology
• Traffic Control
• Electrical
• Mechanical
• Lighting
• Snowmelt (possible)
• Structural
• ADA/Pedestrian Access
Drawings for Permit Set, Bid Set, Construction Set
Plats and Plans needed to achieve Land Use and
Building Permits
Construction Management Plan
As-Built Survey
Other services customarily provided for PUD and
Building Permit
Comprehensive Drainage Plan and Design –
Following the City’s Urban Runoff Management
Plan
Geotechnical survey and pavement design –
construction recommendations for earthwork and
construction recommendations for bituminous or
concrete pavements
Memorandum of Design Utilities – contact impacted
utility companies or districts and share FIR and FOR
designs with these companies
25
P54
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
2.1.1.3 Landscape Architecture
TASKS NOTES ON ABILITY TO
COMPLETE
FIR Design landscape, irrigation,
wayfinding, outdoor fixtures and
furnishings, specifications to allow cost
estimation
FOR Design landscape, irrigation,
wayfinding, outdoor fixtures and
furnishings, specifications to allow cost
estimation
Consultation and Review of FIR and
FOR design with City and RFTA staff
Visual Aids for permitting and
presentations – Colored 24 x 26 site
plans with landscaping, fixtures, and
furnishings and two vignette drawings
depicting the sense of place at site.
Other services customarily provided for
PUD and Building Permit
2.1.1.4 Transportation Planning
TASKS NOTES ON ABILITY TO
COMPLETE
FIR Circulation, Staging, and
Loading/Unloading Transit Plans
Consultation and Review with City and
RFTA staff
FOR Circulation, Staging, and
Loading/Unloading Transit Plans
Final Quality of Service Traffic Plan
Other services customarily provided for
PUD and Building Permit
26
P55
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
2.1.1.5 Architecture
TASKS NOTES ON ABILITY TO
COMPLETE
FIR Building Plans for Cost
Estimation, Staff Review, Commercial
Design Review and PUD Preparation
60% Building Plans for Cost
Estimation
FOR Building Plans
Interior and Exterior Lighting Plan
Commercial Design Review Set
Bid Set
Construction Set
Materials Palette and Visual Aids for
Permitting and Presentations
Other services customarily provided for
PUD and Building Permit
Construction Phase Quality Control and
Acceptance
Building Operations and Maintenance
Manual
2.1.1.6 Land Use Planning
TASKS NOTES ON ABILITY TO
COMPLETE
Pre-Application and DRC Meetings
Coordinate and Prepare Applications
for Planned Unit Development, Growth
Management Commercial Design
Review Historic Review (if needed)
Address Issues raised by Staff and
Public
27
P56
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
TASKS NOTES ON ABILITY TO
COMPLETE
Represent City as Applicant in
Hearings, Legal Notice Compliance
Other services customarily provided for
PUD and Building Permit
Prepare and file Development Plan and
Agreement
2.1.1.7 Independent Construction Cost Estimation
TASKS NOTES ON ABILITY TO
COMPLETE
Cost Estimation of 60% Design
Value Engineering Analysis
2.1.1.8 Construction Services- By Relevant Team Member
TASKS NOTES ON ABILITY TO
COMPLETE
Onsite Inspections
Construction RFI and RFP support
Submittal Reviews
Quality Assurance
Materials Testing
2.1.1.9 Energy
TASKS NOTES ON ABILITY TO
COMPLETE
Assessment of FIR Design and
Recommendation to Design Team for
Energy-Efficiency and Renewable
Energy
28
P57
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
TASKS NOTES ON ABILITY TO
COMPLETE
FOR Bid Set and Construction Set
Plans and Specifications, as needed
Operating Manual for achieving Energy
Savings
Post-Occupancy Commissioning
2.2 Special Project Requirement. All work is to be performed under the direction and supervision,
appropriate to the task, of a Colorado-Licensed Professional Engineer, a Colorado-Licensed
Professional Land Surveyor, a Colorado-Licensed Architect, a Colorado-Licensed Landscape
Architect, a Colorado-Certified Industrial Hygienist, or, as appropriate, any combination of the
foregoing.
The Land Use Approval timeline is Staff’s best guess at this time. Proposers should be prepared to
be flexible, as the process is heavily dependent upon a variety of factors, including
• The ability to get on an agenda;
• Changes to the PUD process currently under review by the Aspen City Council, and
• The extent of comments from various review boards.
Proposers should indicate how they will effectively navigate the land use process through the
Historic Preservation Commission (HPC), Planning & Zoning Commission (P&Z), and Aspen City
Council. Staff anticipates the following reviews will be required for this process, though
consolidation of Conceptual and Final PUD may not be feasible depending on the extent of changes
proposed:
1. Conceptual Design review with HPC;
2. Consolidated Conceptual and Final PUD review and GMQS review with P&Z;
3. Consolidated Conceptual and Final PUD review and GMQS review with City Council; and
4. Final Design review with HPC.
29
P58
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
EXHIBIT B
COMPENSATION AND METHOD OF PAYMENT
A. Total Compensation. The contract is a Fixed-Price, Labor Hour contract based upon the
negotiated rates as specified in the attached documents labeled as Exhibit C and Exhibit D.
(1) The document entitled “Attachment B-Detailed Fee Matrix for The Rubey Park Final Design,
November 15, 2013 – (3 pages),” and attached hereto as Exhibit C shall govern charges to
The City for all Services included in the Scope of Work (Exhibit A).
(2) The document entitled “Attachment D-Team Hourly Rates,” and attached hereto as Exhibit
D shall govern charges to The City for all Services performed outside of the scope of work,
or “add-on services” as mentioned in Section 2.3 Contract Information of the RFQ.
(3) It is understood by both parties that the maximum compensation under this Contract shall not
exceed Six Hundred Twenty-Four Thousand, Nine Hundred Fifty-Eight and no/100
Dollars ($624,958.00). The maximum compensation under this Contract may only be
modified by written agreement of both parties to the Contract in the form of a Contract
Amendment as specified in Article 12 of the Contract.
B. Contract Allocation
CONSULTANT TEAM SERVICE FEE
Studio B Architecture + Interiors Architecture $179,140.00
Bluegreen Landscape Architecture $131,440.00
Bluegreen Planning $ 69,300.00
Sopris Engineering Civil Engineering $121,900.00
Fehr & Peers Transportation Planning $ 14,443.00
KL&A Structural Engineering $ 39,750.00
Beaudin Ganze Consulting Engineers MEP $ 50,085.00
Rider Levett Bucknall Cost Estimating $ 18,900.00
TOTAL (NTE) $624,958.00
C. General Terms and Conditions
(1) For full and complete compensation for all work, materials, and services furnished under the
terms of this Contract, the CONTRACTOR shall be paid an amount not to exceed the total
contract budget specified in Section B, above.
(2) The total cost of the Contract shall not exceed the contract budget specified in Section B
above unless The City determines that there is a requirement for a substantial change in the
30
P59
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
scope, character, or complexity of the work from that originally negotiated for the Contract
and issues a Contract Amendment.
(3) The City shall pay the CONTRACTOR for actual Services performed in accordance with
Article 8 of the Contract.
(4) The CONTRACTOR expressly agrees that he shall do, perform and carry out in a
satisfactory and proper manner, as determined by The City, all of the work and services
described in the Contract.
(5) Should the services under the Contract be terminated for convenience by The City, pursuant
to Article 16 of the Contract, the CONTRACTOR shall be paid based upon the percentage of
work completed at the point of termination.
D. Partial Payment. Payment for Services performed under the Contract shall be made based on
actual services completed and substantiated by detailed invoices and other such documentation
that The City may reasonably require. Such invoices and other documentation will be verified
by The City, and payment will be made by The City to the CONTRACTOR in the full amount of
the actual services completed, less the total of all previous payments, up to the amounts
identified in Exhibit B, above.
E. Final Payment. Upon completion, delivery and acceptance of all work contemplated under the
Contract, the CONTRACTOR shall submit one (1) final invoice statement for the balance of the
work performed.
The CONTRACTOR agrees that acceptance of this final payment for the Contract shall be full
and final settlement of all claims arising against The City for work done, materials furnished,
costs incurred, or otherwise arising out of this Contract and shall release The City from any and
all further claims of whatever nature, whether known or unknown, for and on account of said
Contract, and for any and all work done, and labor and materials furnished, in connection with
same.
31
P60
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
EXHIBIT C
SCHEDULE OF CHARGES
[Please see next three unnumbered pages entitled “Attachment B-Detailed Fee Matrix for The Rubey
Park Final Design, November 15, 2013”]
32
P61
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33
P6
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34P63VI.c
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35P64VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
EXHIBIT D
SCHEDULE OF CHARGES
[Please see next unnumbered page entitled “Attachment D-Team Hourly Rates”]
36
P65
VI.c
37
P66
VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
EXHIBIT E
CONTRACTOR STATEMENT OF QUALIFICATIONS
[Contractor’s Statement of Qualifications, including the Best and Final Offer, in response to Solicitation
No. 13-051 Request for Qualifications for the provision of Architectural and Engineering Consulting
Services for the Final Design of the Rubey Park Transit Center is incorporated herein.]
38
P67
VI.c
November 15, 2013
VIA EMAIL
Collina D. Washington
Procurement Manager
Roaring Fork Transportation Authority
1340 Main Street
Carbondale, CO 81623
BEST AND FINAL OFFER
SOLICITATION NO. 13-051
A&E CONSULTING SERVICES FOR FINAL DESIGN OF RUBEY PARK
TRANSIT CENTER
Dear Collina:
This letter represents our Best and Final Offer to provide Architectural and Engineering Consulting
Services for the Final Design of the Rubey Park Transit Center in Aspen, Colorado. We are in
receipt of your Request for Best and Final offer dated November 14, 2013, and our responses to
your questions and requests for clarification are incorporated in this letter and the attached
documents.
PROJECT DESCRIPTION
We understand the Project to be the renovation of the existing Rubey Park Transit Center and
specific adjacent Right-of-Ways in the downtown core of Aspen, Colorado as identified on
Attachment A – Rubey Park Project Boundaries. Per Solicitation No. 13-051, the Project requires
the following:
Design Development and Construction Documents for concrete work, onsite amenities,
and building renovation of the Rubey Park Transit Center, located in Aspen, Colorado
Construction Cost Estimation and Value Engineering
Permitting Planned Improvements
Studio B shall provide all professional Consulting Services stipulated in Solicitation No. 13-051.
The Project shall comply with all applicable codes & approvals required by the City of Aspen and
other relevant jurisdictions.
ARCHITECT’S DESIGNATED REPRESENTATIVE
The Architect’s Designated Representative is:
Gilbert Sanchez, AIA
Principal
501 Rio Grande Place, Suite 104
Aspen, CO 81611
Phone: 970.920.9428
Fax: 970.920.7822
Email: gilbert@studiobarchitects.net
39
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VI.c
Best and Final Offer / Solicitation No. 13-051 Page 2
RESPONSIBILITIES OF STUDIO B
Studio B shall perform these services consistent with the professional skill and care
ordinarily provided by architects practicing in the same or similar locality under the same or
similar circumstances.
Studio B shall perform these services as expeditiously as is consistent with such
professional skill and care and the orderly progress of the Project as outlined in the
attached Project Schedule.
Studio B shall coordinate these services with those services provided by the Client and the
Client’s Consultants if any.
RESPONSIBILITIES OF THE CLIENT
The Client shall provide relevant information in a timely manner regarding requirements for
the Project.
The Client shall provide Studio B with any relevant Project Budget information including
periodic updates.
PROJECT SCHEDULE
The Project shall be completed as outlined on Attachment C – Proposed Project Schedule.
PROJECT DELIVERABLES
The Project Deliverables shall include the following:
Monthly Status Reports
FIR Documents as required by CDOT or as amended by the Client
FOR Documents as required by CDOT or as amended by the Client
Applications & Support Documents as required by the City of Aspen for PUD, GMQS &
Commercial Design Review by HPC
Building Permit Documents as required by the City of Aspen
Bidding Documents
Construction Documents
Other Deliverables identified in Attachment B – Detailed Fee Matrix for the Rubey Park
Final Design
PROFESSIONAL FEES
The fee for the Design Services outlined in this Proposal shall be six hundred twenty-four
thousand nine hundred fifty-eight dollars ($624,958.00). The estimated fee distribution and
reimbursable expenses are outlined in Attachment B – Detailed Fee Matrix for the Rubey Park
Final Design. The matrix is based on the Consultants’ average billing rates and is an estimate
only of anticipated fee distribution for the duration of the Project. The actual circumstances of the
Project may require adjustments to the fee distribution.
The fee breakdown for the Architect and the Consultant Team shall be:
Studio B Architecture + Interiors (Architecture) $179,140.00
Bluegreen (Landscape Architecture) $131,440.00
Bluegreen (Planning) $69,300.00
Sopris Engineering (Civil Engineering) $121,900.00
40
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VI.c
Best and Final Offer / Solicitation No. 13-051 Page 3
Fehr & Peers (Transportation Planning) $14,443.00
KL&A (Structural Engineering) $39,750.00
Beaudin Ganze Consulting Engineers (MEP) $50,085.00
Rider Levett Bucknall (Cost Estimating) $18,900.00
Total Fee $624,958.00
The Consultant Team’s hourly rates are identified in Attachment D – Team Hourly Rates.
The Client may request work that is beyond the scope of this Proposal which shall be completed
as an Additional Service at the Consultant Team’s Hourly Rates or as mutually agreed upon.
EXCLUSIONS
The following are not included in the fee for services outlined above:
1. Permit and Approval Fees required by the City of Aspen or other applicable
jurisdictions.
QUALITY CONTROL
The Studio B Consultant Team shall exercise a professional standard of care to complete the
Project in a timely manner and that satisfies the goals, objectives, program and vision established
by the completed Schematic Design phase. Quality Control is a vital factor in the overall success
of any project and requires both focused input and management. Our process includes the
following:
Generating a tightly coordinated and approved set of design development documents.
Careful Production Planning: A Work Plan coordinated with the Project Schedule that
considers the production times required for each task in its appropriate phase and
coordinating each of the consultant's production schedules.
Consistent Documentation Standards: The establishment of documentation standards (in
conjunction with the Client's standards) such as drawing formats and specification formats.
Maintaining Current Documents and Tracking Revisions: As updates of documents are
issued, dates and reasons for revisions are noted on the sheets. These revisions and
issues are further listed in a master list of documents maintained by Studio B as part of the
project manual.
CAD drawings files are shared to insure each Consultant shares the other's most current
information. Common sheets are combined on the computer and inconsistencies easily
identified.
Team Coordination Meetings: Meetings to document coordination and revision issues, to
review schedules, budgets, design criteria, permitting, etc. shall be schedule at Project
milestones. The Client or the Client’s representative may elect to participate in these
meetings. These are expected to occur prior to the conclusion of 30% Design, 60% Design
& 90% Design.
Program & Document Checklists: Studio B develops custom checklists for each Project to
assist in the verification of Program compliance and that documents are coordinated and
comprehensive.
41
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VI.c
Best and Final Offer / Solicitation No. 13-051 Page 4
Offered by:
Gilbert Sanchez, AIA
Principal, Studio B Architecture + Interiors
5 0 1 r i o g r a n d e p l a c e s u i t e 1 0 4 a s p e n c o . 8 1 6 1 1 9 7 0 . 9 2 0 . 9 4 2 8 f a x 9 7 0 . 9 2 0 . 7 8 2 2
w w w . s t u d i o b a r c h i t e c t s . n e t
42
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43
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2
VI
.
c
44
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VI.c
Contract No.: 2013-142
Solicitation No.: 13-051 Rubey Park Final Design
Grants: CDOT FASTER; FHWA Federal Lands Access Program
EXHIBIT F
SOLICITATION DOCUMENTS
[Solicitation No.13-051 Request for Qualifications for the provision of Architectural and Engineering
Consulting Services, fully conformed, is wholly incorporated herein by reference.]
45
P74
VI.c
Regular Meeting Aspen City Council November 11, 2013
1
CITIZEN PARTICIPATION .......................................................................................................... 2
PROCLAMATION – Purple Star Families .................................................................................... 2
COUNCILMEMBER COMMENTS .............................................................................................. 3
CONSENT CALENDAR ............................................................................................................... 3
Resolution #100, 2013 - Burlingame Phase 2 Change Orders ............................................ 4
Minutes - October 28, 2013 ................................................................................................. 4
ESPN Winter Concerts Wagner Park .................................................................................. 4
ORDINANCE #49, SERIES OF 2013 – Mocklin Subdivision Amendment ................................. 4
ORDINANCE #46, SERIES OF 2013 – 549 Race Alley TDRs .................................................... 5
ORDINANCE 347, SERIES OF 2013 – Supplemental Appropriation 2013 Budget .................... 6
ORDINANCE #48, SERIES OF 2013 – Fees for 2014.................................................................. 8
RESOLUTION #101, SERIES OF 2013 – Adopting 2014 Budget ............................................... 8
ORDINANCE #45, SERIES OF 2013 – Amending APCHA Guidelines to Include “Retiring in
APCHA Rental and Ownership Housing” ...................................................................................... 9
ORDINANCE #23, SEREIS OF 2013 – South Aspen Street Subdivision/PUD Amendment ..... 10
ORDINANCE #28, SERIES OF 2013 – 360 Lake Avenue (Erdman Partnership Lot Split)
Subdivision Amendment ............................................................................................................... 15
P75
VI.d
Regular Meeting Aspen City Council November 11, 2013
2
Mayor Skadron called the meeting to order at 5:00 p.m. with Councilmembers Daily, Frisch,
Romero and Mullins present.
CITIZEN PARTICIPATION
1. Jan Hamilton presented each Council person with a magnet containing an = sign. Ms.
Hamilton said it is a national organization representing equal human rights for all walks of life.
Ms. Hamilton read from Aspen’s Ordinance #60, Series of 1977, prohibiting discriminatory
practices relating to employment, housing, public services and accommodations and noted Aspen
is ahead of the game in anti-discrimination.
2. Heidi Zuckerman Jacobson, Aspen Junior Hockey board, introduced Sean Hathaway, the
new hockey coach. Hathaway thanked Council for their support financially and in-kind for the
hockey program. Hathaway said they just completed the fall face off with 84 teams competing.
Hathaway said they are looking to expand to a spring hockey tournament. The 84 teams bring in
a lot of revenue to Aspen’s lodges and restaurants.
3. Andy Israel told Council he is concerned about event overload at Wagner Park, which is
closed over 100 days/year for events. There should be an understanding of economics of any use
of Wagner Park. Israel said open space should stay open. Jeff Woods, parks department, said it
is a balancing act between community interest, open space and events. Woods told Council he
will meet with Israel.
4. Liz O’Connell, canary initiative, announced that Friday, November 15, is America
Recycles Day and the city is celebrating it 10 a.m. to 2 p.m. at the Recycling Center. There will
be demonstrations on how to turn old skis and snow boards into a bench.
5. Karinjo deVore, Aspen International Mountain Foundation, reported she attended the 4th
global Mountain summit and at this meeting AIMF and Aspen was elected to the steering
committee and is responsible for North America, Central America and the Caribbean. The city
of Aspen deserves credit for supporting AIMF and for being progressive and innovators in
sustainable mountain development.
PROCLAMATION – Purple Star Families
Adam McCabe asked what communities are doing to welcome veterans back home; people who
are out doing what other people do not want to do and who are willing to sacrifice their lives.
McCabe told Council Purple Star Families is petitioning the President of the United States for
development of a viable homecoming preparedness program to help reduce fatalities among
P76
VI.d
Regular Meeting Aspen City Council November 11, 2013
3
veterans and active duty military personnel and hopes to raise 1 million signatures in support of
this.
Mayor Skadron proclaimed that Council and the citizens of Aspen support the efforts of Purple
Star Veterans and Families and encourages the community to sign the petition to support this
important effort.
COUNCILMEMBER COMMENTS
1. Councilman Frisch said he attended the Veteran’s Day ceremony this afternoon. Last
week he attended a fund raising effort for local Nordic skiers, Noah Hoffman, Simi Hamilton
and Michael Ward, hoping to go to the Winter Olympics. November 22nd at the Belly Up there
will be a fund raiser for Wiley Maple, also in support of an Olympic effort.
2. Councilman Daily thanked Adam McCabe for stepping up and sponsoring the Purple Star
Families efforts.
3. Councilman Romero said the 5th grade class from Aspen Middle School attended the
Veterans Day celebration and sang some songs. It is a great lesson for school kids of service
above self.
4. Councilman Romero noted the Aspen Education Foundation held their annual fund raiser,
flamingo a go-go and raised over $400,000 to be used as direct contributions to Aspen schools.
5. Councilman Romero said last week Council met with the Next Generation prospective
board. Councilman Romero said he would like to make sure that the Next Generation advisory
board includes people from all walks of life in Aspen.
6. Mayor Skadron thanked veterans for their service and their sacrifice.
7. Mayor Skadron agreed the AEF fund raiser was a great event. Mayor Skadron thanked
the Aspen Skiing Company for opening early this upcoming weekend.
CONSENT CALENDAR
Councilwoman Mullins asked if all three Burlingame change orders are to do with solar. Jack
Wheeler, capital assets, told Council only change order 123 for $302,000 is the solar. The other
two change orders have been included in recent budget updates.
Councilwoman Mullins moved to approve the consent calendar; seconded by Councilman Frisch.
The consent calendar is:
P77
VI.d
Regular Meeting Aspen City Council November 11, 2013
4
• Resolution #100, 2013 - Burlingame Phase 2 Change Orders
• Minutes - October 28, 2013
• ESPN Winter Concerts Wagner Park
All in favor, motion carried.
Councilman Daily left Council Chambers.
ORDINANCE #49, SERIES OF 2013 – Mocklin Subdivision Amendment
Justin Barker, community development department, told Council this subdivision is located
along Lone Pine road and is 6 single family and 1 multi-family lot. The original 1995 plat
contains a note prohibiting development other than native vegetation outside the defined building
envelopes of the 6 free market lots to protect natural landscape. The note was amended several
years later to resolve a conflict with this note and the necessity to remove some contaminated
soils located in the Smuggler Superfund site. The applicant is requesting an amendment to add
additional language to allow for temporary shoring and site drainage improvements to occur
outside the building envelopes but only during the period of construction. Barker pointed out
this falls under “other amendments” in the land use code, requiring Council approval; however,
there are no criteria for “other amendments” and the only stipulation is that Council must
determine the amendment is consistent with the approved plat.
Councilman Mullins asked why if it was important to not compromise the native landscape
originally that has changed. Barker said the amendment allows for the property owners to
comply with city drainage regulations and to allow for different construction than originally
anticipated. The building envelopes stay the same and the landscape will be protected.
Councilman Romero moved to read Ordinance #49, Series of 2013; seconded by Councilman
Frisch. All in favor, motion carried.
ORDINANCE NO. 49
(Series of 2013)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING THE SUBDIVISION PLAT FOR THE PROPERTIES COMMONLY
KNOWN AS 115, 125, 145, 155 AND 165 MINERS TRAIL ROAD AND LEGALLY
DESCRIBED AS LOTS 1, 2, 3, 4, 5 AND 6, MOCKLIN SUBDIVISION, ACCORDING
TO THE PLAT THEREOF, RECORDED JUNE 14, 1996 IN PLAT BOOK 39 AT PAGE
92, AND FIRST AMENDMENT TO THE FINAL PLAT OF MOCKLIN SUBDIVISION
RECORDED AUGUST 4, 1998 IN PLAT BOOK 45 AT PAGE 59.
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Councilman Romero moved to adopt Ordinance #49, Series of 2013, on first reading; seconded
by Councilman Frisch. Roll call vote; Councilmembers Mullins, yes; Frisch, yes; Romero, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #46, SERIES OF 2013 – 549 Race Alley TDRs
Mayor Skadron recused himself.
Amy Simon, community development department, told Council this ordinance creates 3
transferable development rights. This is a historic landmark property in the center of Fox
Crossing subdivision and is one of the most unaltered miner’s cottages; it has not been lived in
for more than 50 years and is deteriorated. The new owner is going through HPC for a remodel
and addition and restoration. The owner would like to leave 750 square feet of allowed floor
area unused and turn it into 3 TDRs. Ms. Simon told Council the criteria are met.
Councilwoman Mullins asked if this has completed HPC. Ms. Simon said it was continued to a
HPC meeting this week and HPC has not made a final decision. This will need to be
accomplished before second reading of this ordinance. Councilwoman Mullins said the
applicants are asking for 3 TDRs for 750 square feet as well as a 500 square foot bonus.
Councilwoman Mullins said it appears that the 500 square foot bonus is being turned into a TDR
rather than just taking allowable square footage off the site.
Ms. Simon pointed out when the TDR program was created, staff wanted to make sure possible
benefits were not being taken away; it would not be a great incentives to create TDRs and then
be told they did not qualify for the floor area bonus. This applicant is using the bonus as part of
the developed project and selling floor area that is part of the base allowable and is diminishing
what could have been built on the site by 750 square feet. Any applicant has to earn the floor
area bonus with HPC. The maximum allowable FAR on this site is 2722 square feet and the
applicant is proposing to build 2522 square feet. Granting TDRs is solely Council discretion;
HPC looks at the proposal for development. Ms. Simon told Council there is an 800 square foot
building on site that is proposed to be 2522 square feet. Councilwoman Mullins requested the
maximum allowable and the square footage for second reading.
Councilman Romero asked about the sequencing and putting this first reading before HPC’s
decision. Ms. Simon told Council this will not come back for second reading until HPC has
approved the development plan. Karen Woods, representing the applicant, said this sequence
was not planned; the HPC meeting was continued. Mayor Pro Tem Frisch agreed Council does
not want to set a precedent for this sequencing. Jim True, city attorney, said this has happened
that first reading takes place before a board recommendation to Council; the applicant is at risk
in this situation.
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Councilman Romero moved to read Ordinance #46, Series of 2013; seconded by Councilwoman
Mullins. All in favor, motion carried.
ORDINANCE #46
(Series of 2013)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO
APPROVING THREE TRANSFERABLE DEVELOPMENT RIGHTS FOR THE PROPERTY
LOCATED AT 549 RACE ALLEY, LOT 5, FOX CROSSING SUBDIVISION, CITY AND
TOWNSITE OF ASPEN, COLORADO
Councilman Romero moved to adopt Ordinance #46, Series of 2013, on first reading; seconded
by Councilwoman Mullins. Roll call vote; Councilmembers Romero, yes; Mullins, yes; Mayor
Pro Tem Frisch, yes. Motion carried.
Mayor Skadron returned to Council.
ORDINANCE 347, SERIES OF 2013 – Supplemental Appropriation 2013 Budget
Pete Strecker, finance department, told Council this ordinance contains $2.8 million in new
requests, most of which Council has seen. Councilman Frisch asked about the retirement
payouts in several departments. Strecker said when someone retires, they are paid for any
accrued vacation, sick or other time and that amount cannot be absorbed in department’s existing
budgets. Councilman Frisch asked about the appropriation of $50,000 for the change in scope of
the Rio Grande project. Stephen Ellsperman, parks department, told Council these changes are
opportunities and new technologies that came after the design was finished. These items were
looked at by staff who determined they would be beneficial to the project.
Councilman Frisch asked about the $800,000 in the electric utility fund increase. Dave
Hornbacher, utility department, reminded Council the city has a high renewable energy content
portfolio and items like hydropower generate electricity at a lesser rate than purchased through
fossil fuels. Two years of drought caused reservoir levels to drop resulting in a lesser production
from renewable sources and the city had to buy higher costs of fuels. Hornbacher noted the
city’s wholesale provider, MEAN, increased their rates and the city had to buy more energy at
that higher rate. Lee Ledesma, utility department, said the city relies on hydroelectric power at 2
cents/kWh and the city had to buy 6.4 million kWh of coal at 6.9/kWh totaling $450,000. Some
revenues will be returned because the customers are using more than average. The city is
somewhat insulated from these increased charges by the renewable energy mix. Hornbacher said
the contract with MEAN is a member-owned style, which means all members take the advantage
as well as the risk determined by the overall energy wholesale market.
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Councilman Frisch brought up the renewable energy fund request for $40,000 for a design study
on the costs to finish a piping component which would be used by the hydropower plant as well
as other aspects. Hornbacher told Council the $40,000 would be to complete the design and to
do some preliminary planning work necessary to get a bid to construct the remaining part of the
drain line from Thomas reservoir in order to get a detailed cost estimate to bring that project to
Council. Hornbacher said they hope to have a packet ready for bid in April 2014, which will
need Council approval. The earliest construction would be fall 2014. Hornbacher said staff is
looking at the condition of the bridge crossing Castle Creek at Power Plant road and if the bridge
needs to be replaced, those two projects would be coordinated. Ms. Ledesma said another piece
of this is the second feed on the electric system. The city is currently paying Holy Cross
transmission fees of $30,000. Once Burlingame and the water campus are part of the loop, the
city will be saving $50,000/year in transmission fees.
Councilman Romero asked if the drain line is essential for public safety. Hornbacher said it is a
necessary component for a safe evacuation route from the reservoir. Mayor Skadron asked if the
$40,000 could be categorized in a fund other than renewable energy fund. Hornbacher said it
could be in the water department fund. Mayor Skadron agreed this is a water issue, not a
hydropower issue, and it is a necessity for public safety and for the resiliency of the
infrastructure.
Councilman Romero said governmental accounting insures appropriations catch up and projects
get appropriately funded as well as technical adjustments to be made. Councilman Romero said
he would like to see a level of performance statistics or year over year performance. Councilman
Romero asked if management looks at supplemental appropriation for management performance
or organizational performance or for future improvements. Steve Barwick, city manager, told
Council staff will review this at second reading. Councilman Romero asked for an account of
litigation expenditures from 2007 to today, cases live or settled, put in the context of what the
community can expect from year to year.
Councilman Romero moved to read Ordinance #47, Series of 2013; seconded by Councilman
Frisch. All in favor, motion carried.
ORDINANCE NO.47
(Series of 2013)
AN ORDINANCE APPROPRIATING AN INCREASE IN THE ASSET MANAGEMENT
PLAN FUND EXPENDITURES OF $322,030, AN INCREASE IN THE GENERAL FUND
OF $436,530 AN INCREASE IN THE PARKS AND OPEN SPACE FUND OF $164,240, AN
INCREASE IN THE TRANSPORTATION FUND OF $151,100, AN INCREASE IN THE
HOUSING DEVELOPMENT FUND OF $535,000, AN INCREASE IN THE KIDS FIRST
FUND OF $97,000, AN INCREASE IN THE WATER FUND OF $555,920, AN INCREASE
IN THE ELECTRIC FUND OF $820,000, AN INCREASE IN THE RENEWABLE ENERGY
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FUND OF $40,000, AN INCREASE IN THE PARKING FUND OF $42,920, AN INCREASE
IN THE SMUGGLER HOUSING FUND OF $2,000.
Councilwoman Mullins moved to adopt Ordinance #47, Series of 2013, on first reading;
seconded by Councilman Frisch. Roll call vote; Councilmembers Frisch, yes; Mullins, yes;
Romero, yes; Mayor Skadron, yes. Motion carried.
ORDINANCE #48, SERIES OF 2013 – Fees for 2014
Councilman Frisch noted plan check fees are a percentage of the value of the project and asked
why these are not just straight hourly fees. Chris Bendon, community development department,
said the complexity of a review is tied to the cost of a project and staff has found hourly billing
can be a headache, staff tends not to fully account for their time. Councilman Frisch suggested
one system for all community development department billing. Bendon said for applicants
knowing what the planning fee will be is helpful in projecting their budgets. The building and
planning fees are flat carried forward from 2013. Councilwoman Mullins said the fact many fees
stayed the same or had moderate increases is a credit to the city and management of costs of
programs. Councilwoman Mullins requested for second reading a summary of the trends of fees,
increases, percentage, so the public can be aware of how the city is managing costs.
Councilman Romero moved to read Ordinance #48, Series of 2013; seconded by Councilwoman
Mullins. All in favor, motion carried.
ORDINANCE NO. 48
Series of 2013
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING THE MUNICIPAL CODE OF THE CITY OF ASPEN TO ADJUST CERTAIN
MUNICIPAL FEES
Councilman Romero moved to adopt Ordinance #48, Series of 2013, on first reading; seconded
by Councilwoman Mullins. Roll call vote; Councilmembers Romero, yes; Frisch, yes; Mullins,
yes; Mayor Skadron, yes. Motion carried.
RESOLUTION #101, SERIES OF 2013 – Adopting 2014 Budget
Pete Strecker, finance department, told Council this resolution adopts a $85.8 million budget for
2014 of net appropriations which is a 4.6% decrease compared to the originally adopted 2013
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budget. Strecker said this budget is a balance between meeting increased customer demands and
being cautious with sales tax and other revenues.
Mayor Skadron opened the public hearing. There were no comments. Mayor Skadron closed
the public hearing.
Councilman Romero moved to approve Resolution #101, Series of 2013, adopting the 2014
budget; seconded by Councilman Frisch. All in favor, motion carried.
ORDINANCE #45, SERIES OF 2013 – Amending APCHA Guidelines to Include “Retiring in
APCHA Rental and Ownership Housing”
Tom McCabe, housing department, told Council this adds two sections to the housing guidelines,
one to cover rental housing and one to cover ownership housing as well as expanding the
definition section of the guidelines. McCabe noted there is no section in the guidelines spelling
out the rules around retirement. McCabe said people are required to live in their unit 9
months/year, work 1500 hours and not own any other developed property and based on the social
security’s definition of 100% retirement benefits, one can retire in affordable housing at age 65
to 67 depending on when one was born. McCabe pointed out this is not tied to the social security
retirement scale. McCabe pointed out anyone in transition who would have qualified before this
ordinance goes into effect will be grandfathered.
Jim True, city attorney, noted the definition of qualified retiree is one who has reached the age of
67, yet this is adopting a sliding scale. McCabe said the guidelines will read a person who has
reached the age as defined in the guidelines and has worked the prerequisite amount of hours,
this will be corrected. Councilman Frisch said he would prefer a retiree to have worked 10 years
rather than 4.
McCabe said staff hopes with these changes to make it clear the retirement age be up to 67 if in
APCHA housing. McCabe said the definition of APCHA senior includes that one is allowed to
have up to 150% of the net assets allowed at the top of their normal category that one is not
reclassified for saving money and having higher assets. Mayor Skadron questioned the use of
“normal” to describe one’s category, which seems to be a vague term. True said applicable
income/asset category would be clearer.
Mayor Skadron opened the public hearing.
Marcia Goshorn said these changes standardize the retirement age. Ms. Goshorn noted there are
deed restrictions the address at what age a unit owner can retire. These guidelines changes will
not affect the master deed restrictions.
Mayor Skadron closed the public hearing.
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Councilwoman Mullins noted the definition for APCHA senior refers to one who is 65 or older
and the definition of retiree refers to 67, and the full retirement age chart which makes this
unclear. Councilwoman Mullins said she would like it all tied to together and suggested the
ordinance be continued for these re-writes.
Councilman Romero moved to continue Ordinance #45, Series of 2013, to November 18;
seconded by Daily. All in favor, motion carried.
ORDINANCE #23, SEREIS OF 2013 – South Aspen Street Subdivision/PUD Amendment
Jennifer Phelan, community development department, told Council this property is 2.3 acres on 3
lots at the base of Aspen mountain, south of town. This property received an approval in 2003
for 14 free market townhomes and 17 affordable housing units housing 46 employees in 4
buildings. Ms. Phelan said this amendment was submitted in 2011 and there have been several
iterations since then. The current proposal contains 31 multifamily units, 14 free market units
and 17 affordable housing on site. The density is the same, the difference is the number of
employees housed on site because of different unit configuration. The proposal houses 34.25
employees with the ability to add another unit to increase FTEs on the site. There will be 11.75
FTEs housed off site with either actual units east of the S-curves or affordable housing credits.
Council will need to amend the growth management for affordable housing and multi-family
replacement, amend the subdivision approval, approve merging lots 2 and 3 into one lot, vacate
an easement on that lot, and amend the PUD. Ms. Phelan said staff has been working with the
applicants to balance the livability of the affordable housing units with density on site. Ms.
Phelan showed the 2003 approval site plan, pointing out the affordable housing buildings and the
free market residences; showed the 2011 proposal to amend the approval 2003 proposal and
showed the 2013 proposal. Ms. Phelan showed the affordable housing on the two parcels and
one building on the upper parcel was removed.
Ms. Phelan noted parcel 1 has 15 units, building 1 with 12 units and building 2 has 3 affordable
housing units and there will be a duplex on the upper parcel with 2 three-bedroom units. Ms.
Phelan said the conversation with the applicants has been how to make the affordable housing
units more livable. All 17 affordable housing units are larger than the required minimum. Both
buildings in the lower parcel will be accessible by elevator; each unit has one off street parking
space; all units have additional storage in excess of what is in the individual units. Ms. Phelan
showed an elevation of the affordable housing buildings which previously contained a subgrade
floor of housing. The applicants have put the mechanical and storage subgrade and provided
better experience for the affordable housing units. The applicants looked at roof top access for
the building; however, that would require a stairwell and an elevator overrun which added a story
of height to that building. Most of the units have private decks or patios adding some outdoor
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living space to the units. Ms. Phelan noted two of the affordable housing buildings will need
height variance, one for 2’ and the other a 10’ height variance.
Ms. Phelan showed the 2011 proposal and outlined the easement that will be removed, a drive
that will be removed, removed curb cuts, and where some buildings are rotated to have better
orientation with the street. There are 47 parking spaces underground. Ms. Phelan noted all free
market buildings will be within the height limit of 28’. The free market units will remain within
the floor area from 2003. Ms. Phelan showed the triplexes with 3 units each going up South
Aspen street; the architecture is more modern. There are street facing doorways with porch
elements that are within the design guidelines. This proposal exceeds the number of bedrooms
and square feet required by the demolition of the Mine Dumps apartments; the affordable
housing units were reviewed by the housing staff and recommended for approval and the rental
units will be category 2 to 4. Ms. Phelan said the growth management standards for the
amendment are met.
Ms. Phelan pointed out this application proposes merging the two upper lots. In the 2003
approval there was access through a vacated alley. Staff is okay with the vacation of the
easement and recommends the lots be permitted to merge. The ordinance requires the
application meet infrastructure improvements required by city staff.
Ms. Phelan told Council the PUD standards require the development promote the community
plan and insures a more desirable development plan is achieved. Staff supports the latest
iteration as the density is not reduced, the site plan is more reflective of the traditional street grid,
the affordable housing units are more livable for a better balance of density and livability, and it
is an improvement to the previous application. Ms. Phelan pointed out there is an approved
vested project for this site, vested until 2015. The issue is whether the 2013 site plan better than
the previous site plan. Staff believes this site plan is better with more livable employee units
with the same number of employees housing as proposed in 2003, some off site or by affordable
housing credits. Ms. Phelan told Council staff and the applicant looked at an additional floor of
housing on one of the building; after looking at it, staff agreed they do not support the additional
floor because of the elevator required. The removal of subgrade level of housing softened the
grade to that building. Ms. Phelan said the street is 50’ and the neighborhood is concerned about
the loss of on-street parking if this is kept as a two-way street. Engineering staff has looked at
making this a one-way street which would retain some on-street parking. Staff recommends
approval of this site plan with conditions.
Chris Bendon, community development department, reminded Council at the last hearing on this
issue, Council requested staff and the applicant come back on the same page and in this proposal,
they are. Bendon noted the applicant has been responsive to staff’s requests. Bendon said staff
feels this is an improved project and is better than the vested project.
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Councilman Romero asked about comparing the projects and how they fit into the
PUD/subdivision criteria. Ms. Phelan said looking at the removal of the 4th building, it was
pushed up against Shadow mountain and had no street presence and staff felt it was density for
density sake and would not be a great living environment. The neighbors indicated a preference
for more family oriented units. Bendon said that 4th building required a curb cut on Juan street
which disconnected the residents from the street. Bendon said this is a good site for affordable
housing and that use should be optimized while providing high quality units, which necessitated
some reduction in density. Bendon said the remaining density to be provided should be east of
the roundabout, which is a benefit when removing some density from this site.
Councilman Romero asked if, in trying to improve livability, staff looked at the effects of this
project on adjacent property owners. Bendon noted during Council review, staff heard both
“push density” and that quality – open space and breathability - is the biggest issue. Bendon said
Council has to look at staff’s recommendation and also take into account public comments. Ms.
Phelan said with this design, there is a 16’ separation between Juan street affordable housing and
the proposed units. The Juan street units have a bay window that goes into that 16’.
Councilwoman Mullins asked about public comment on the impacts on Juan street residents.
Ms. Phelan said the discussion was about maintaining on street parking, which could be
impactful to the residents. Two-way traffic eliminates all on street parking; one-way traffic
would retain some on street parking.
Councilman Frisch said moving some affordable housing off site makes for a more livable
project as long as the offsite housing is in town. Ms. Phelan showed Council the approved 2003
site plan and the vacated alleyway and a condition of approval was that the utility department
would have the easement for any future utilities. The new site plan is not conducive to have that
easement in that location; the easement is smaller and there is no access. The land on the west is
conservation so there is no concern about future development and the utility department is okay
with removing the easement. Mayor Skadron noted vacating an easement translates to filling in
open space. Ms. Phelan said the alley could be filled in. The only easement was for utilities.
Mayor Skadron opened the public hearing.
Derek Johnson, Juan Street affordable housing, reminded Council the adjacent homeowners have
been working on this project for the last 12 years to try and preserve their quality of life and for
the new residents. Johnson said this proposal is not the best; in previous proposals, consideration
to preserving the side yard between the two properties has been part of the application for
livability of both Juan street and the new affordable housing units. Johnson noted there is 27 to
30’ between the two properties; this proposal has 8’ between the two properties. Johnson said
moving building 3 affordable housing units off site would be good for both properties. Johnson
reminded Council this is a mine dump area and every precaution should be made when the dirt is
being removed.
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Kirsten Morgan, Juan Street affordable housing, said the way this proposal looks, Juan Street
will lose most or all of their yards. Ms. Morgan said these yards are used every day of the year
with sandbox and vegetable garden and play areas for the children. Ms. Morgan said they will
lose their view, sunshine, privacy and some safety and they will like to keep this open space.
Denis Murray, Trainor’s Landing, said the objection seems to be the proximity to Juan Street
housing and if that one building were removed, it would alleviate that objection. Murray said
this is the least presentation on a design option since this originated. Murray noted Council’s
decision is which of the proposals is the better one. Murray agreed eliminating one building next
to Juan street would be a good start. Murray said the one-way street may work but whichever
direction it is going, every car will go by Trainor’s Landing. Murray said this is an important
decision to the entire community, not just the adjacent residents. Murray said the proposed
project, after 10 years, should be much better than the original project. The new proposal
includes a 47 car parking lot with unknown amount of traffic and unknown how the traffic will
flow. Murray said the latest proposal needs to be better than what is proposed.
Ziska Childs noted this corner of Aspen is still a neighborhood and it would be a loss to not have
this little bit of community.
Mayor Skadron closed the public hearing.
Councilman Frisch said he feels Juan street affordable housing units will be better off if the
building #3 could be moved offsite as long as it is within the roundabout. Councilman Frisch
said he feels this is better than that approved in 2003. Councilwoman Mullins said density is
both people on site and square footage on site and she favors more square footage on site similar
to other developments in the area. Councilwoman Mullins asked the developer why this
proposal is better than the one approved in 2003. David Parker, representing the applicants, said
the previous approval has a solid wall of townhomes; this proposal has separations for views
through. The street has been opened up. Previously, a large excavation was planned for the
most toxic part of this site and that excavation has been moved to a better location. The retaining
wall was right up against another building. The proposed building on the west of the site was
sandwiched between open space and asphalt parking lot.
Stephen Holly, representing the applicants, said between the two proposals, there are many bad
planning aspects about the original proposal, especially the inability to address Juan street; the
retaining walls were benched off on the upper lots resulting in no street presence, just a wall.
The building on the west is an island with no front, side or back yard. The parking in the
previous proposal goes all the way through the project. In the earlier proposal, not all units are
accessible and in this proposal, all units but one are accessible. Holly pointed out the
townhouses in this proposal address the street in a better way.
Councilwoman Mullins said she feels the 2003 plan is more fitting with the area, bringing the
facades to Aspen street and respecting the alley, the grid of the city and across the street,
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circulation across the back of the units. Councilwoman Mullins said the proximity of affordable
housing to Juan street in both plans is a problem. Councilwoman Mullins said she does not feel
the new proposed plan solved a lot of the problems. Mayor Skadron concurred about the
livability aspects on the Juan street residents.
Bendon noted building 3 could be amended to provide additional setback or to remove one unit
and make the building a single family building. Bendon said this is an appropriate location for
affordable housing so the building should not be removed altogether. Bendon reiterated
affordable housing brings life to the streets. Bendon said the neighborhood contains Juan street,
Trainor’s Landing and these proposed buildings. Staff supports more family-oriented units and
would support reducing the size of the building.
Councilman Romero noted the subdivision and PUD criteria state optimizing density and
livability should not be at the direct expense of some other neighborhood and he will support this
project only if building 3 is removed and relocated east of the S-curves or using some affordable
housing credits or reducing it to a single family building. Councilman Romero stated this project
is better than that approved in 2003. The negative is adding density just to have density and
impacting neighbors. Councilwoman Mullins stated she would prefer a design that is driven by
the urban fabric around the site. Councilwoman Mullins said on the 2013 proposal, circulation
is driving the design. Holly noted the amount of surface dedicated to driveways in the 2013
design is less than the 2003 project. Councilwoman Mullins said this is an important site and
whatever is built there should be extraordinary.
Bendon said the staff realizes this property will be developed; the community and applicant
pursued a lodge on site, and tried several times to get a lodge development there. Bendon said
the purpose of the original application was to garner an entitled project for this site, which was
approvable and buildable. Bendon said that original project was probably not proposed as the
project that would be built and may not have had a lot of thought put into it. Bendon told
Council they could approve the 2013 iteration, amending building 3 to be a single family unit
with a smaller footprint, or to remove building 3 from the site. Bendon stated staff prefers
building 3 with two units; if not that, building 3 as a single family. Mayor Skadron if building 3
a were single family, asked how much space would be between that on Juan street. Parker said
probably an additional 8’ would be gained. Councilman Romero said he would prefer building 3
be eliminated; however, as a compromise a single family building would give some architectural
and site planning flexibility and honor the community. Councilman Frisch concurred.
Councilwoman Mullins said the design and site planning does not rise to excellence for this
important site. Councilwoman Mullins said the site design seems to be a disconnect from the
adjacent projects. Mayor Skadron said this proposal is better than that of 2003. Ms. Phelan told
Council if adopted, the ordinance will be changed to require a single family unit for building 3,
three or four bedrooms, the number of offsite units will need to be adjusted, the ordinance will
clarify that guest parking spaces can be used by any affordable units, clarification on if the
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applicant builds units and they are over the required mitigation, that they can use those units as
affordable housing credits, there will be no fence between Juan street and building 3.
Councilman Romero moved to adopt Ordinance #23, Series of 2013, with the amendments
above; seconded by Councilman Frisch. Roll call vote; Frisch, yes; Mullins, no; Romero, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #28, SERIES OF 2013 – 360 Lake Avenue (Erdman Partnership Lot Split)
Subdivision Amendment
Sara Adams, community development department, told Council this is a request to amend the
360 Lake Avenue subdivision. This application was continued from July; the applicants request
to amend the original ordinance to allow TDR’s to land on the two lots of the Erdman
Partnership. When the subdivision was approved in 1990, specific floor area for both lots was
prescribed in the ordinance so the ordinance needs to be amended to increase that floor area and
landing TDRs. Ms. Adams told Council the applicant has been reviewing their options and
during this time, some conversations with community development staff have been discovered.
Ms. Adams noted there have been no changes to the request since last appearance.
Ms. Adams stated staff opposes the request; allowing a TDR in additional to the floor area
allowed in the 1990 ordinance results in a house that is too big for the neighborhood and 700
square feet bigger than would be permitted today and is outside the context of the R-6 zone
district. Ms. Adams told Council staff tries not to combine land use codes to create a new code
and believes allowing a TDR in addition to the prescribed floor area creates a new code and is a
way to add more floor area than is allowed in this residential area. Ms. Adams said Council can
approve the request by adopting the ordinance in the packet; Council can amend the 1990
ordinance to omit the prescribed floor area and site coverage so that the parcel is subject to the
land use code in effect at the time of application. This would have the current code apply and
which would allow landing of TDRs; however, the code would lower the allowable floor area.
Council can deny the request.
Chris LaCroix, representing the applicant, told Council at the earlier meeting, the representative
was not aware of the communications between LaCroix and community development staff
before purchasing the TDR. La Croix said this information is relevant. LaCroix told Council he
worked with staff when his client had the TDR under contract and asked that staff say it was
allowable and that the floor area for this property was the floor area proscribed by ordinance in
1990 plus 250 square feet. The client bought the TDR in reliance on that information and has
spent a year working to design a house using that TDR. LaCroix noted staff found a conflict
with the code that no one knew about at the time. LaCroix asked that Council find the applicant
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did everything right and relied on advice from staff. LaCroix said the floor area prescribed in the
1990 ordinance would have allowed this house without TDRs for several years after the
ordinance was adopted.
Chris Bendon, community development department, pointed out there is criteria for landing
TDRs; the first of which is that the property is not restricted by prescribed floor area, which this
property is. Bendon noted the question asked by the applicant is not clear. Bendon told Council
the applicants presented a letter for staff to sign, which staff declined to do and the applicant
should have been put on notice at that point. LaCroix said this was discussion between himself
and staff. LaCroix said the correspondence speaks for itself. Steve Wilson, representing the
applicant, said e-mail made it clear 360 Lake Avenue is a TDR receiving site and said it is not
staff’s practice to sign letters.
Jim True, city attorney, said the concept in which the applicant is asking for Council’s approval
is the doctrine of equitable estoppel, which requires a reasonable reliance on the action of the
City. True noted LaCroix was working with staff and trying to understand what could or could
not be done. The practice outlined by staff is designed to avoid the concept of equitable
estoppel. True stated when staff said it was not their practice, the applicant should have been
alerted to further investigation. Staff does not have authority to waive a code requirement; this
code requirement states a TDR cannot be landed on a site that has a prescribed floor area unless
allowed by ordinance. This 1990 ordinance does not allow it and would require an amendment
to allow a TDR; amending the ordinance is the correct procedure. True stated it is not reasonable
for the applicant to have relied on the string of e-mails, the proposed letter and the circumstances
to conclude what they asked could be accomplished. True noted Council has the discretion to
amend the ordinance; they are not required to amend the ordinance based on an equitable
estoppel claim. True stated there has been no reasonable reliance on an action of the city that
would bind Council to allow the landing of a TDR.
Councilman Romero stated he cannot find anywhere in the correspondence where the staff said
there is a problem and inconsistency with the 1990 land use approvals. Councilman Romeo said
this seems to be a set of mistakes. True said there is a difference between honest mistakes by the
city and having that mistake bind the Council to a certain outcome. Councilman Romero said
based on the evidence, it seems that the city is in the business of trying to identify mistakes made
and try to make repair. True said the issue for him is whether the city is equitably estopped
which says applicants have relied on the position of someone with appropriate authority, the
reliance was reasonable, and Council cannot change that position. True stated the statements
may have been honestly made, they may have been in error, but when the specific document that
would have given authority to reasonably rely on a position of the city was rejected, for whatever
reason, that makes it difficult for an applicant to assert they reasonably relied on positions set
forth in the e-mail string. True reiterated Council is not bound by this because reliance on the e-
mail string is not reasonable.
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Regular Meeting Aspen City Council November 11, 2013
17
True reminded Council the applicants are asking for 1990 Ordinance #66 specific floor area,
measured under the current code, plus 250 square feet TDR. Councilman Romero pointed out
the correspondence was with knowledgeable staff and it seems the repair would be to accept the
request. The evidence in this case would be hard to replicate in the future so this is not
precedence setting. Councilman Romero stated the city is in the business of service. True said
Council has the discretion to allow the landing of the TDR; the basis of discretion is up to
Council.
Mayor Skadron said the outcome would be a house bigger than that allowed under the 1990
ordinance and the house would be out of place with the neighborhood. Councilman Frisch said
he supports backing up staff’s comments and what they tell applicants; however, reading the last
e-mail, one can see why one would say they are ready to go. Councilman Frisch asked who was
to tell an applicant they cannot put a TDR on this parcel. Bendon noted staff has many
conversations with applicants; however, Bendon said this was not a mistake but may have been
confusion on all sides. There was not a thorough examination of the property and all its legal
restrictions by staff; this was an e-mail correspondence and there is a process for examination of
property. Bendon told Council there is a responsibility on the applicant and their team to pursue
all those things. Bendon stated applicants should ask for an official determination or for more
investigation. TDRs do not have a lot of criteria, but the first one is one cannot be landed on a
site with a prescribed floor area. Bendon said there was not enough information to make an
assumption on this issue. Bendon reiterated due diligence should be done by the applicant.
LaCroix said he offered to do that and staff said it was not necessary. LaCroix said this was a
TDR under contract and he would have done the research if so indicated.
Councilwoman Mullins stated she accepts the conclusion of the city attorney that Council is not
bound by the series of misunderstanding. Councilwoman Mullins noted there is service to an
individual and there is service to the community. Councilwoman Mullins said the land use code
creates floor areas that are appropriate for the neighborhoods. Councilwoman Mullins said the
codes cannot be mixed. Mayor Skadron stated he is not a proponent of further allowing mass in
already dense areas and allowing the TDR as well as specified maximum floor area provides too
much floor area on site. Mayor Skadron said he will support staff’s recommendation.
Councilman Romero moved to adopt Ordinance #28, Series of 2013; seconded by Councilman
Frisch.
Councilman Frisch said this is a difficult topic. Council agreed they would like to have all 5
members present. Councilman Romero withdrew his motion.
Councilman Romero moved to continue Ordinance #28, Series of 2013 to November 18;
seconded by Councilman Frisch. Councilman Romero and Frisch in favor; Councilwoman
Mullins and Mayor Skadron opposed. Motion NOT carried.
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Regular Meeting Aspen City Council November 11, 2013
18
Councilman Romero moved to continue Ordinance #28, Series of 2013 to November 18;
seconded by Councilman Frisch.
Councilman Frisch said he would like the full Council to vote on this and supports continuation.
Mayor Skadron said his vote is further allowing mass in a dense area is not something he favors
and the staff recommendation is the appropriate direction. Councilman Romero said owning an
honest mistake by the city is Council’s best path. Councilwoman Mullins said she feels it was
clear a TDR cannot be landed on a site that has a specified FAR. Councilman Romero pointed
out the 1990 ordinance did not come up in the correspondence with staff and the applicant. True
stated the restriction about landing a TDR is clear if the proper analysis is done. True said he
was asked whether the slope reduction would eliminate the landing of a TDR, which it would
not. Bendon agreed there is basic due diligence one can do and there are only 5 or 6 criteria for
landing a TDR on a property. Staff does not do due diligence for an applicant. Bendon said the
issue is the 250 square feet and its appropriateness on the property. Councilman Frisch said he
likes the smaller building but would be trading that for credibility of the city because of the e-
mail correspondence. Councilwoman Mullins said approving this could be setting a harmful
precedence. Mayor Skadron said Council would increase credibility by standing on principle by
not allowing mass in already dense areas.
All in favor with the exception of Mayor Skadron. Motion carried.
Councilwoman Mullins moved to adjourn at 10:20 p.m.; seconded by Councilman Romero. All
in favor, motion carried.
Kathryn Koch, City Clerk
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VI.d
MEMORANDUM
TO: Mayor Skadron and Council
FROM: Wheeler Executive Director Gram Slaton
THRU: Assistant City Manager Randy Ready
DATE OF MEMO: November 20, 2013
RE: Wheeler Board of Directors Ordinance No. 50
SUMMARY: The Board of Directors of the Wheeler Opera House and Wheeler staff are presenting a
suggested change to the composition of the Wheeler board that would change the appointment of a
high school student representative (“youth representative”) and fill that position with a regular board
appointment. This is the first suggested change to the composition of the board of directors since 2005.
The proposed change to the Wheeler Board ordinance would allow Council to continue to fill the seat
with a high school or youth representative, but the board position would not be reserved exclusively for
a high school student.
BACKGROUND: In 1982, in advance of the comprehensive renovation of the Wheeler Opera House,
Aspen City Council established and appointed an initial Board of Directors to undertake the
management of the facility in accordance with Ordinance No. 10 (Series of 1982). Over the years,
Aspen City Council has reorganized and re-established the Wheeler board by three separate ordinances,
these being Ordinance No. 63 (Series of 1992), Ordinance No. 5 (Series of 2004), and Ordinance No. 48
(Series of 2005). These ordinances have served to clarify the role of the board (1992), expanded its
composition (2004), and reduced its composition while also eliminating potential conflicts of interest
(2005). A youth representative was established as part of the 2004 ordinance.
DISCUSSION: Since its establishment in 2004, the Wheeler has had five different youth representatives
on its board, with periodic gaps between appointments. The City Clerk’s office works with a
representative of Aspen High School to ideally secure a student for a two-year period (by ordinance, the
appointment is for a one-year term).
The Wheeler Board of Directors believes that, while the intention of the youth representative on the
board was a good idea and would ensure a direct link between an underserved audience and the
Wheeler, in practice it has proven difficult not only to attract an interested high school student but also
to make the traditional board meeting schedule integrate with the youth representative’s hectic
curricular and extra-curricular schedules. The youth representative has full voting authority and is one
of seven voting members of the board (the eighth member of the board is a representative from the
Aspen Music Festival and School and serves in an ex officio capacity). While the quality of the input
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from the youth representatives has been high, the rate of absenteeism associated with both the
conflicting schedules and traveling distance from school to town has undermined the effectiveness in
allowing this student to make a meaningful contribution to the Wheeler’s board process.
However, Wheeler management in the past few years has developed other avenues for meaningful
involvement with students. Staff and the board believe that these new ways of engaging youth are
actually better than board membership. The Wheeler annually hosts year-end honors ceremonies for
both Aspen and Basalt High Schools. The Wheeler also offers outreach activities that take the
MountainSummit films and guests to the school campus. The Wheeler’s social media efforts engage
young people, make them aware of upcoming programs, and provide interactive opportunities for them
to comment on performances and to make programming suggestions. At present, the Wheeler’s
Audience Services Manager and Marketing Coordinator are organizing a youth advisory group to help
promote shows and receive ideas and feedback about how the Wheeler can be an even-better
entertainment venue for youth.
RECOMMENDATION/COMMENT: Wheeler board and staff recommend Council approval of Ordinance
No. 50, in order to better serve the community through active management and guidance of the
Wheeler Opera House.
CITY MANAGER COMMENTS:
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VII.a
ORDINANCE NO. 50
(Series of 2013)
AN ORDINANCE OF THE CITY OF ASPEN, COLORADO, REPEALING ORDINANCE NO.
48 (SERIES OF 2005) AND RE-ENACTING AN ORDINANCE TO CHANGE THE
COMPOSITION OF THE BOARD OF DIRECTORS OF THE WHEELER OPERA HOUSE.
WHEREAS, the City of Aspen owns the historic structure known as the Wheeler Opera
House, located at the corner of South Mill Street and East Hyman Avenue in the City of Aspen,
Colorado, and has the right and responsibility to manage the same; and
WHEREAS, the City Council did appoint a Board of Directors of the Wheeler Opera
House to undertake the management of the Wheeler Opera House in accordance with Ordinance
No. 10 (Series of 1982); and
WHEREAS, the City Council repealed Ordinance No 10 (Series of 1982) and re-enacted
an ordinance (Ordinance 63 of 1992) to clarify that the Board of Directors is to function as an
advisory board and not a managing board; and
WHEREAS, the City Council repealed Ordinance No. 63 (Series of 1992) and re-enacted
an ordinance (Ordinance No. 5, Series of 2004) to change the powers and duties of the Board of
Directors to clarify its role in establishing policies for the Wheeler Opera House and to expand
the membership of the Board of Directors from seven (7) to nine (9) members; and
WHEREAS, the City Council repealed Ordinance No. 5 (Series of 2004) and re-enacted
an ordinance (Ordinance No. 48, Series of 2005) to decrease the membership of the Board of
Directors from nine (9) to seven (7) members, one of which was designated as a youth
representative, and modified the qualification requirements to eliminate members or candidates
that have a conflict of interest as described in the City Charter (Section 4.7) as “a substantial
personal or financial interest” in the Wheeler Opera House; and
WHEREAS, the City Council desires to now remove the designation of one of the voting
members as a youth representative and return such board seat to another community
representative;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO, THAT:
Section 1. Establishment of the Board of Directors.
There is hereby established the Board of Director of the Wheeler Opera House for the City of
Aspen, Colorado, which Board of Directors shall serve for an indefinite term and at the pleasure
of the City Council.
Section 2. Composition; Term; Qualification.
The Board of Directors shall be constituted as follows:
(a) The Board of Directors of the Wheeler Opera House shall consist of seven (7)
members, all of whom shall serve overlapping three (3)-year terms. The Board shall
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be appointed by the City Council with all appointees designated as at-large
appointees who shall be selected primarily for their knowledge of and experience in
the performing arts and/or financial, management or marketing capabilities.
(b) Except for the filling of vacancies, all terms of appointment shall be for three-year
periods, commencing at the time of appointment.
(c) The Aspen Music Festival and School (AMFS) or its successor organization that may
have the right to the exclusive use of the Wheeler Opera House during the summer
season, as per contract through August 2034, shall appoint a representative to fill a
permanent, non-voting, ex-officio seat on the Board of Directors. By virtue of
AMFS’s Wheeler Opera House management responsibilities for a significant portion
of the year, the AMFS representative shall be entitled to participate in any of the
activities and deliberations of the Board, but shall not vote.
(d) All members of the Board of Directors shall serve at the pleasure of the City Council
and may be removed by majority vote thereof.
(e) The Board of Directors is declared not to be a permanent board within the meaning of
Section 8.2 of the Charter of the City of Aspen and, therefore, there shall be imposed
no age or residency requirement for membership on the Board of Directors nor shall
candidates for appointment be required to be qualified electors.
Section 3. Powers and Duties.
Generally, the Board of Directors is empowered to advise the City of Aspen on the
planning and policy related to the daily and long-term operations of the Wheeler Opera House.
These management duties shall include the following:
(a) Recommend scheduling policy, priorities and rates for the theatre operations; and
(b) Recommend operating policy and rental rates for the commercial space in the Opera
House building.
Section 4. Rules of Procedure.
(a) A quorum to transact the business of the Board of Directors shall consist of four (4)
members.
(b) At its first meeting (which shall be called by the City Manager), the Board of
Directors shall elect a chairperson, vice-chairperson, and secretary.
(c) The Board of Directors shall establish regular meeting times and days. Special
meetings may be called by the chairperson or at the request of any two (2) members
on at least twenty-four (24) hours written notice to each member of the Board of
Directors, provided that a special meeting may be held on shorter notice if all
members of the Board of Directors waive notice in writing. No business shall be
transacted at any special meeting unless it has been stated in the notice of such
meeting.
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VII.a
(d) All regular and special meetings of the Board of Directors shall be open to the public
except for executive (closed door) meetings as are permitted by law. Citizens shall
have a reasonable opportunity to be heard and all minutes and other records of action
of the Board of Directors shall be made available to the public.
(e) The Board of Directors may adopt by-laws for the conduct of its business not
inconsistent with this ordinance and the Charter of the City of Aspen, and shall adopt
such rules of procedures as it deems necessary.
Section 5. Severability
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent provision and shall not affect the validity of the
remaining portions thereof.
Section 6. Public Hearing
A public hearing on the ordinance shall be held on the 9th day of December, 2013, in the
City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the 2nd day of December, 2013.
________________________________
Steven Skadron, Mayor
ATTEST:
__________________________
Kathryn S. Koch, City Clerk
FINALLY adopted, passed and ordered published this 9th day of December, 2013.
________________________________
Steven Skadron, Mayor
ATTEST:
__________________________
Kathryn S. Koch, City Clerk
P97
VII.a
Mocklin Subdivision
Page 1 of 4
MEMORANDUM
TO: Mayor Skadron and Aspen City Council
THRU: Chris Bendon, Community Development Director
FROM: Justin Barker, Planner
RE: Mocklin Subdivision – Subdivision Plat Amendment, Second
Reading of Ordinance #49, Series of 2013
MEETING DATE: December 2, 2013
SUMMARY: The Mocklin
Subdivision contains 6 single-family
lots and 1 multi-family lot. The
applicant proposes to amend the
subdivision to add language in a plat
note allowing for temporary shoring
during construction of the subgrade
walls and drainage improvements
outside of the existing building
envelope on the 6 single-family lots.
The current plat note does not allow
any disturbance outside of the
envelope except to mitigate for
contaminated soils in the Smuggler
Mountain Superfund Site.
This type of amendment is considered an Other Amendment and requires Council approval,
provided the proposed change is consistent with the approved plat.
The purpose of the amendment is to allow what would be considered typical development that is
otherwise restricted by existing plat notes. The proposed amendment does not affect the physical
nature of the subdivision and is consistent with the intent of the approvals outlined in the plat.
Staff recommends APPROVAL.
APPLICANT: Charif Souki, represented by Davis Horn Incorporated.
ADDRESSES: Lots 1, 2, 3, 4, 5 and 6, Mocklin Subdivision, according to the Plat thereof,
recorded June 14, 1996 in Plat Book 39 at Page 92 and First Amendment to the Final Plat of
Mocklin Subdivision recorded August 4, 1998 in Plat Book 45 at Page 59.
Lots 1-6, Mocklin Subdivision
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Mocklin Subdivision
Page 2 of 4
ZONING: (R-15A) Moderate Density Residential.
PRIOR APPROVALS:
o City Council Approvals
In July 1995, Council approved the Mocklin Subdivision by Ordinance No. 35,
Series of 1995. The approval created 6 free-market lots and 1 affordable housing
lot.
o Other Approvals
In June 1998, the Community Development Director approved an Insubstantial
Amendment to eliminate the necessity for lift stations, and revise one of the plat
notes in order to eliminate a conflict with a condition of approval.
BACKGROUND: The Mocklin Subdivision was originally approved through Ordinance No.
35, Series of 1995. As part of this approval, one of the conditions (4.g.) was to include notes on
the Final Plat preventing future development (other than native vegetation) outside of the
building envelope in order to protect the natural landscape. Another condition of approval (5.b.)
was to comply with the Institutional Controls adopted by the City for the Smuggler Superfund
Site. These conditions were memorialized in the recorded Final Plat and Subdivision
Agreement, respectively.
A conflict between these two conditions was realized from the fact that compliance with the
adopted Institutional Controls required that all contaminated soils be remediated. Portions of the
Mocklin Subdivision located outside of the approved building envelopes contain contaminated
soils. Therefore, in order to remediate contaminated soils to comply with condition 5.b,
disturbance would be required outside of the envelopes, causing a conflict with condition 4.g.
This conflict was resolved through an insubstantial amendment by the Community Development
Director, revising Plat Note #3 to read as follows:
“Fencing, patios, decks, hot tubs, landscaping other than native vegetation, and all other
development shall be prohibited outside of the designated building envelopes on lots 1, 2,
3, 4, 5, and 6 to protect the natural landscape; however, disturbance of areas outside of
the designated building envelopes as is reasonably necessary to comply with the
institutional controls which have been adopted by the City of Aspen for the Smuggler
Mountain Superfund Site and to obtain EPA certification that all contaminated soils have
been remediated, shall be permitted provided the owner limits the disturbance and
associated removal of vegetation to the minimum required to comply with the
institutional controls and the recommendations of the Aspen/Pitkin County
Environmental Health Department and to obtain EPA certification, existing vegetation
shall be preserve to the extent feasible and all disturbed areas shall be revegetated with
native species, in accordance with a landscape plan that is reviewed and approved by the
City of Aspen Parks Department. After the soil remediation activities are completed, all
building construction shall be limited to within the designated building envelopes, as
depicted hereon, and all road and utility construction shall be limited to within the
rights-of-way and easements depicted hereon.”
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Mocklin Subdivision
Page 3 of 4
The owner of Lot 4, the last undeveloped lot, would like to construct a single-family home that
requires temporary shoring outside of the envelope in order to construct the subgrade walls. The
final structure will still be contained within the approved building envelope once completed.
Development on the site also requires compliance with the City of Aspen drainage requirements.
The initial application proposed creating several different types of development envelopes
specifically for Lot 4 in order to allow these improvements. After several discussions, staff
encouraged the applicant to approach this more holistically by amending the subdivision plat
instead of creating exceptions for one lot. This creates a similar benefit to all of the single-family
lot owners in the subdivision. The result is the current application.
The proposed temporary shoring and site drainage work outside the building envelope are in
conflict with Plat Note #3. In order to resolve this conflict, the applicant proposes to amend the
plat to include the following under Plat Note #3:
“Notwithstanding the foregoing paragraph, disturbance outside the designated building
envelopes for lots 1, 2, 3, 4, 5 and 6 shall be permitted for the purposes of temporary
shoring and conformance with the requirements for site drainage rules adopted by the
City of Aspen. Such disturbance shall be the minimal amount required to provide
shoring and comply with the site drainage requirements in accordance with
§26.575.020.E.5.L of the Land Use Regulations. Any areas disturbed by shoring and
site drainage activities shall be revegetated with native plant species in accordance with
a landscape plan that is approved by the City of Aspen Parks Department.”
The bolded text is language that has been modified since the first reading. This was done in
response to staff request for more precise language limiting the type and visual impact of site
drainage improvements that could occur outside the building envelopes.
STAFF EVALUATION: The original purpose for creating building envelopes in the Mocklin
Subdivision was to protect the native landscaping that exists on site, specifically the sagebrush
on the southern side of the subdivision. With the amended application, the applicant intends to
maintain the existing envelope as approved. This way the native landscaping is not compromised
and additional development rights are not granted to a single property owner over another.
However, the proposed development is still difficult given the current plat notes which restrict
any sort of disturbance outside of the envelope, even for purposes other than the Superfund Site
Institutional Controls that are required by the City of Aspen. The original plat note was intended
to prevent artificial features from extending into the native landscape, and did not anticipate
alternative construction methods or additional City requirements. The proposed amendment,
similar to the first amendment to this subdivision, is being made in response to unanticipated
conflicts in the language of the plat notes.
This type of amendment does not have specified review criteria. The only requirement is that the
amendment must be consistent with the approved plat, as determined by Council. Staff finds that
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VIII.a
Mocklin Subdivision
Page 4 of 4
the proposed amendment does not affect the physical nature of the subdivision and is consistent
with the intent of the approvals outlined in the plat. The additional language still limits
development to the areas prescribed by the original building envelopes, while allowing for varied
construction techniques and necessary site work.
STAFF RECOMMENDATION: In reviewing the proposal, Staff finds that the proposed
amendment is consistent with the approved plat and recommends APPROVAL to amend the
plat for the Mocklin Subdivision.
PROPOSED MOTION (All motions are worded in the affirmative): “I move to approve
Ordinance No. 49, Series of 2013, on Second Reading.”
CITY MANAGER COMMENTS:
ATTACHMENTS:
Exhibit A – Application
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VIII.a
Mocklin Subdivision
Ordinance #49, Series of 2013
Page 1 of 3
ORDINANCE NO. 49
(Series of 2013)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING THE SUBDIVISION PLAT FOR THE PROPERTIES COMMONLY
KNOWN AS 115, 125, 145, 155 AND 165 MINERS TRAIL ROAD AND LEGALLY
DESCRIBED AS LOTS 1, 2, 3, 4, 5 AND 6, MOCKLIN SUBDIVISION, ACCORDING
TO THE PLAT THEREOF, RECORDED JUNE 14, 1996 IN PLAT BOOK 39 AT PAGE
92, AND FIRST AMENDMENT TO THE FINAL PLAT OF MOCKLIN SUBDIVISION
RECORDED AUGUST 4, 1998 IN PLAT BOOK 45 AT PAGE 59.
PARCEL ID #s:
2737-073-23-001, 2737-073-23-002, 2737-073-23-003, 2737-073-23-004, 2737-073-23-005,
2737-073-23-006
WHEREAS, the Community Development Department received an application from Charif
Souki, represented by Davis Horn Incorporated, requesting a plat amendment to the Mocklin
Subdivision, legally described as Lots 1, 2, 3, 4, 5 and 6, Mocklin Subdivision, according to the
plat thereof, recorded June 14, 1996 in Plat Book 39 at page 92, and first amendment to the final
plat of Mocklin Subdivision recorded August 4, 1998 in Plat Book 45 at page 59; and
WHEREAS, pursuant to Section 26.480.080.B, City Council may approve an Other Amendment
to a subdivision, provided that the proposed change is consistent with the approved plat; and,
WHEREAS, upon review of the application and the applicable code standards, the Community
Development Department recommends approval of the amendment; and
WHEREAS, City Council has reviewed and considered the development proposal under the
applicable provisions of the Municipal Code as identified herein, has reviewed and considered the
recommendation of the Community Development Director, the applicable referral agencies, and has
taken and considered public comment; and,
WHEREAS, during a duly noticed public hearing on December 2, 2013, the Aspen City Council
approved Ordinance No. 49, Series 2013, by a ____ to ____ (_-_) vote; and,
WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion
of public health, safety, and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
Section 1:
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the
City Council hereby approves the Second Amendment to the Final Plat of Mocklin Subdivision,
which amends Plat Note 3 to include the following language:
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VIII.a
Mocklin Subdivision
Ordinance #49, Series of 2013
Page 2 of 3
“Notwithstanding the foregoing paragraph, disturbance outside the designated building
envelopes for lots 1, 2, 3, 4, 5 and 6 shall be permitted for the purposes of temporary shoring
and conformance with the requirements for site drainage rules adopted by the City of Aspen.
Such disturbance shall be the minimal amount required to provide shoring and comply with the
site drainage requirements in accordance with §26.575.020.E.5.L of the Land Use Regulations.
Any areas disturbed by shoring and site drainage activities shall be revegetated with native plant
species in accordance with a landscape plan that is approved by the City of Aspen Parks
Department.”
Section 2:
The applicant shall record a subdivision plat that meets the requirements of Land Use Code
Section 26.480 with the Pitkin County Clerk and Recorder within 180 days of approval.
Section 3:
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held
invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 4:
This ordinance shall not have any effect on existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances amended as herein
provided, and the same shall be construed and concluded under such prior ordinances.
Section 5:
A public hearing on the ordinance shall be held on the 2nd day of December, 2013, in the City
Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a
public notice of the same was published in a newspaper of general circulation within the City of
Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 11th day of November, 2013.
Attest:
_____________________________ _________________________________
Kathryn Koch, City Clerk Steven Skadron, Mayor
FINALLY, adopted, passed and approved this ___ day of ____, 2013.
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Mocklin Subdivision
Ordinance #49, Series of 2013
Page 3 of 3
Attest:
_____________________________ _________________________________
Kathryn Koch, City Clerk Steven Skadron, Mayor
Approved as to form:
__________________________
Jim True, City Attorney
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MEMORANDUM
TO: Mayor Skadron and Aspen City Council
THRU: Chris Bendon, Community Development Director
FROM: Amy Simon, Historic Preservation Officer
RE: 110 E. Bleeker- Extension of Vested Rights, Resolution #107, Series 2013, Public
Hearing
DATE: December 2, 2013
APPLICANT /OWNER:
Lexie Brockway Potamkin
REPRESENTATIVE:
Herb Klein, of Klein, Coté and Edwards
LOCATION:
110 E. Bleeker, Lots L and M, Block 65,
City and Townsite of Aspen, PID#2735-
124-37-006
ZONING:
R-6, historic landmark
PROPOSAL:
The applicant requests a 3 year Extension of Vested
Rights related to an HPC approved remodel to this
single family home.
STAFF RECOMMENDATION:
Staff recommends denial of a 3 year extension.
Vested Rights have been extended twice previously.
SUMMARY:
The Applicant has requested Extension of Vested Rights for the project approved by HPC
Resolution #33, Series of 2004, an approval which allows an addition to this landmarked home, a
floor area bonus, a setback variance and site coverage variance. The approval requires the
applicant to restore the house based on a historic photo, and to remove vegetation that has been
planted in the public right of way, significantly blocking public view of this historic resource.
The photos below show the changed appearance of the home over the years.
Victorian era Current photo Date unknown
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The project was originally initiated by this applicant in 2002. HPC granted Major Development
approval that year. In 2004, a Substantial Amendment was reviewed and approved. The “clock”
for the Vested Rights was re-set to begin on December 8, 2004.
The property owner submitted for a building permit in 2007, but subsequently became involved
in a property line dispute with a neighbor over the encroachment of the garage at 110 E. Bleeker
onto the neighbor’s lot, and into the alley. The building permit was reviewed, extensions were
granted, but the applicant did not pick up the permit when it was ready to be issued in 2009, so it
expired. A private agreement regarding the garage was reached in 2010. The owner approached
City Council at the end of that year with a request to extend Vested Rights due in part to the
delay involved in settling.
Another three years has passed with no action towards constructing the approved project. Vested
Rights extension is requested until December 2016, which would be 14 years past the original
project review.
STAFF COMMENTS:
The review standards that City Council is to apply are attached as Exhibit A. Staff does not find
that the review criteria, particularly Criterion 1b, related to the applicant’s progress towards
acting on the approval, is met.
Vested Rights status allows the project to be constructed under the land use regulations that were
in place in 2004, including the historic preservation provisions, the zone district regulations, and
the methodology for calculating floor area, height, setbacks, etc.
The historic preservation guidelines have not been amended, but the HPC’s interpretation of the
guidelines may have shifted as the board philosophy and membership has changed over the
years. The R-6 zone district has not been meaningfully altered since 2004, but the techniques for
measuring proposed new buildings have. The approved project may or may not comply with
current size limitations.
RECOMMENDATION:
Staff recommends that City Council deny the requested Extension of Vested Rights for 110 E.
Bleeker. The Historic Preservation Commission approval will remain valid, until such time that
area of the code or guidelines are amended. Any building permit submitted after December 9,
2013 will be required to comply with all areas of the land use regulations that have been updated
since 2004. A resolution approving the Extension of Vested Rights has been provided in case
that is the direction of Council.
CITY MANAGER’S COMMENTS:_____________________________________________
_______________________________________________________________________
ATTACHMENTS:
Resolution #107, Series of 2013
EXHIBIT A – Review Criteria and Staff Findings
EXHIBIT B –Application for Extension of Vested Rights
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Exhibit A
EXTENSION OR REINSTATEMENT OF VESTED RIGHTS REVIEW CRITERIA & STAFF FINDINGS
Section 26.308.010.C., Extension or Reinstatement of Vested Rights, of the City Land Use Code
provides that development applications for an extension of vested rights may be approved in
accordance with the following standards and requirements.
1. In reviewing a request for the extension or reinstatement of vested rights the City
Council shall consider, but not limited to, the following criteria:
a. The applicant’s compliance with any conditions requiring performance prior to
the date of application for extension or reinstatement;
Staff Finding:
The applicant is currently in conformance with HPC conditions related to this property.
b. The progress made in pursuing the project to date including the effort to obtain
any other permits, including a building permit, and the expenditures made by
the applicant in pursuing the project;
Staff Finding:
The applicant has initiated a building permit, but allowed it to expire. No application for
permit has been received in over four years.
c. The nature and extent of any benefits already received by the city as a result of
the project approval such as impact fees or land dedications;
Staff Finding:
The City has collected fees as part of processing the land use and building permit
applications, but no other benefits.
d. The needs of the city and the applicant that would be served by the approval of
the extension or reinstatement request.
Staff Finding:
The proposed project includes removing non-historic paint from this brick home,
stabilizing the foundation, and using historic photographs to restore the front porch, bay
windows and other features, which is very valuable to the community. However, the
applicant has not shown active progress in some time. The City’s needs might be better
served by a project that is in alignment with current land use regulations.
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Resolution #107, Series of 2013
Page 1 of 2
RESOLUTION NO. 107
(Series of 2013)
A RESOLUTION OF THE ASPEN CITY COUNCIL APPROVING A THREE YEAR
EXTENSION OF THE VESTED RIGHTS GRANTED BY HPC RESOLUTION #33,
SERIES OF 2004, FOR 110 E. BLEEKER, LOTS L AND M, BLOCK 65, CITY AND
TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO.
Parcel No. 2735-124-37-006
WHEREAS, the Community Development Department received an application
from , represented by, requesting approval of a three (3) year extension of the vested
rights for 110 E. Bleeker, pursuant to HPC Resolution #33, Series of 2004; and,
WHEREAS, City Council has previously extended vested rights for this project
twice, through Council Resolution #95, Series of 2007 and Council Resolution #15,
Series of 2011; and,
WHEREAS, pursuant to Section 26.308.010 Vested Property Rights of the Land
Use Code, City Council may grant an extension of vested rights after a public hearing is
held and a resolution is adopted; and,
WHEREAS, the Community Development Director has reviewed the application
and recommended denial of a three (3) year extension of vested rights; and,
WHEREAS, the Aspen City Council has reviewed and considered the requested
extension of vested rights under the applicable provisions of the Municipal Code as
identified herein, has reviewed and considered the recommendation of the Community
Development Director, and has taken and considered public comment at a public hearing;
and,
WHEREAS, the City Council finds that the extension of vested rights proposal
meets or exceeds all applicable land use standards and that the approval of the extension of
vested rights proposal meets regulatory requirements; 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 ASPEN,
COLORADO, THAT:
Section 1:
The Aspen City Council does hereby approve a three (3) year extension of vested rights
pursuant to HPC Resolution #33, Series of 2004, through December 9, 2016, for 110 E.
Bleeker, Lots K and L, Block 65, City and Townsite of Aspen, Colorado.
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Resolution #107, Series of 2013
Page 2 of 2
Section 2:
All material representations and commitments made by the applicant pursuant to the
development proposal approvals as herein awarded, whether in public hearing or
documentation presented before the City Council, are hereby incorporated in such plan
development approvals and the same shall be complied with as if fully set forth herein,
unless amended by an authorized entity.
Section 3:
This Resolution shall not affect any existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances repealed or
amended as herein provided, and the same shall be conducted and concluded under such
prior ordinances.
Section 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.
Section 5:
A duly noticed public hearing on this Resolution was held on the 2nd day of December,
2013, at 5:00 PM in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
FINALLY, adopted, passed, and approved by a __ to __vote on this 2nd day of December,
2013.
Approved as to form: Approved as to content:
__________________________ ______________________________
James R. True, City Attorney Steven Skadron, Mayor
Attest:
_______________________________
Kathryn S. Koch, City Clerk
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MEMORANDUM
TO: Mayor and Aspen City Council
THRU: Chris Bendon, Community Development Director
FROM: Amy Simon, Historic Preservation Officer
RE: 549 Race Alley- Transferable Development Rights, Second Reading of
Ordinance #46, Series of 2013, TO BE RESCHEDULED
DATE: December 2, 2013
______________________________________________________________________________
SUMMARY: On November 11th, Council held first reading of an ordinance to create 3 TDRs
from a historic landmark site within the Fox Crossing subdivision. The property is currently in a
design review process with HPC. The review has been delayed due to staff and HPC concerns
with the placement of part of a proposed new addition. The next HPC hearing will be in mid-
December.
Newspaper notice for a planned Second Reading for the TDRs at this meeting was completed,
but posting and mailing was abandoned by the applicant. If Second Reading is to move forward,
a new meeting date will be selected and noticing will be accomplished.
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MEMORANDUM
TO: Mayor and Council
FROM: R. Barry Crook, Assistant City Manager
DATE: November 25, 2013
MEETING DATE: December 2, 2013
RE: Direction in re: Single Family Home program for BG2
_____
Summary
Staff seeks to clarify Council’s desires regarding how to construct and sell single family homes
that are authorized for Phase II of Burlingame Ranch.
Previous Council Action:
Previous Council direction regarding the Single Family Home program in Phase 2 of Burlingame
Ranch was developed around the experience from Phase 1 and a desire on the part of City Council
to avoid that experience again. Council’s previous direction for the six lots in Phase 2 was that
those lots were to be developed and sold without any subsidy and as RO homes. To accomplish
this, staff was directed to design homes, build them and sell them as finished product.
Discussion:
In Phase 1, SF home sites were sold to individuals as either RO or Cat 6 lots and they were allowed
to build a home on their purchased lot. As those plans progressed, it became clear owners would
not be able to construct the homes they desired and: (1) afford them and/or (2) be able to re-sell
them at the designated category price for more than it cost them to construct them.
When confronted with homeowners who had a plan they could not afford to follow, Council
determined to subsidize that construction under the following plan (Resolution 56-2008):
• The city would waive payment of water tap fees and building permit fees for each lot.
• The city would pay Sanitation District fees for each dwelling.
• The city would provide subsidy payments to RO lot owners in the amount of $189,500 and
Cat 6 lot owners in the amount of $344,000.
• The city adjusted the maximum resale price: (1) to $995,000 for RO and (2) $640,000 for
Cat 6 homes.
As plans for BG2 progressed, Council determined it did not want to construct any single family
homes in Phase 2. However in order to secure the approval of the Density Agreement with the
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Phase 1 HOA, the City agreed to build six single family homes in Phase 2 – four as part of 2 duplex
sites and two as stand-alone single family sites.
Prior council direction regarding the development and sale of those homes has been as follows:
• Homes will be sold with a RO designation and at the standard appreciation caps of 3% or
CPI whichever is less
• No subsidy will be provided to buyers – as a result an equitable allocation of all costs
associated with the development of Burlingame Ranch would be included in the cost to the
buyer of the RO homes (administration, mitigation, site development, architecture and
design, access and infrastructure, in addition to vertical costs)
• As a way of preventing the situation in Phase 1 from occurring again (i.e. the maximization
of FAR and the subsequent increase in square footage and hence cost – requiring subsidy
for those who desired to build more than they could afford) – the city would design, build
and sell a finished product that met the assessment of the City Council as to the appropriate
size of the home and a price that an RO market would support now and in the future.
Approach 1: City builds and sells finished product
Given that direction, staff has proposed a broad outline for a program to carry out council direction
and develop single family lots in Phase II:
1. Sell them as RO units with no taxpayer subsidy.
2. The City will maintain land ownership until closing and perform the construction.
3. We will continue with the current architectural program.
4. We will use the current “box” (current conceptual drawings). We should be able to
change some interior configurations/finish choices per buyer’s choices.
5. We will find a local interior designer, local architect and local builder and interview them
as a team. The two interested buyers may be included to discuss options and possibilities,
but the City will make the decision. The local design/build team must be capable of
facilitating buyer selection of all interior finishes/upgrades; pricing all finishes/upgrades
within a couple of business days; administering the change orders for these decisions;
then incorporating these changes into the finished units in time for closings to occur and
the newly calculated sales prices.
6. Buyers will pay half of the estimated architectural fee upfront to start the process. This
will act as a deposit until it is consumed and buyer will pay the remainder of all
architectural/design fees as consumed. Completed plans will be owned by the city.
7. We will want a 15% non-refundable deposit and an executed sales contract on both sides
of the duplex of the estimated purchase price to begin construction.
8. Any finishes above “standard” as defined in the sales contract will be cash down, non-
refundable. “Standard” finishes will be the condo upgrade package plus upgraded
cabinets, counter-tops in bathrooms, carpets, light fixtures and flooring.
9. All terms will have to be agreed to by the two Buyers of the duplex units that must be
constructed together.
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We have been approached by two potential buyers and have had conversations about a possible
time table for completing a duplex building of two single family units and some clarifications
around the broad outline above.
Councilmember Frisch has indicated a desire to revisit previous council direction and has had
some conversation with the two potential buyers about returning to an approach whereby the city
simply sells the lots at the Guideline price (currently $179,000), absorbs a subsidy of
approximately $24,000 per lot and permits the buyer to develop the lot under the existing PUD
approvals (2770 square feet – including 912 square feet of basement area, plus an additional 487
square feet of garage space).
If council wishes to consider a program where the city sells the lots and the buyers develop them,
we can develop some elements to ensure that: (1) initial sales prices are set with some degree of
assurance that the costs provided by the owner/developers are indeed the costs incurred, and (2)
no unreasonable level of administrative costs or finishes are included in those numbers.
Approach 2: City sells lots, buyers develop them
If the concerns that drove the current direction continue to be this council’s concerns we can
create a program under the following broad outlines:
1. Continue with the duplex designs for lots 1, 2, 3 and 4 – so two buyers who will agree to
cooperate must exist before any construction on Lots 1 & 2 or Lots 3& 4 would
commence.
2. Maintain architectural review of the buildings and maintain the existing architectural
designs as much as possible.
3. Prohibit the owners from acting as their own General Contractor, or limit their fee to a
reasonable and usual amount for that service.
4. Require review of all invoices to ensure they are reasonable.
5. Approve all finish decisions as to reasonableness or to create an allowance that is the
limit for purposes of establishing the initial sale price (i.e. if the owner decides to
purchase finishes in excess of the allowance, those will not be subject to the initial sales
price determination, subject to appreciation and will not factor into subsequent sales
prices).
6. Establish a “ceiling price” for the initial sales price that would not exceed the cost the city
would have put on the unit had the city built the home and sold it to the owners. This
would provide an upper limit on the initial sales price subject to appreciation and would
put a ceiling on subsequent sales prices. In this case, if the buyer wanted to build a home
that exceeded the ceiling price, they would bear the cost of that decision and would not be
allowed to pass that decision onto the future buyers of the property.
7. Charge an administrative fee to cover: project oversight, review by an owner’s agent as to
the reasonableness of developer expenses/construction costs, and any audit deemed
necessary.
8. Require a construction management plan that would address the construction time frame
in addition to all other required mitigation elements.
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9. Require the buyers to use a bonded construction process to ensure the City will not be
approached for any further “subsidy.”
10. Establish initial HOA and CC&R format for duplex lots.
Request of Council:
Provide direction as to how to proceed with the Single Family Home program in Phase II of
Burlingame Ranch.
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MEMORANDUM
TO: Mayor Skadron and Aspen City Council
FROM: Amy Simon, Historic Preservation Officer
RE: Notice of HPC approval of Conceptual Major Development,
Demolition, On-site Relocation and Variances at 201 E. Hyman
Avenue, through HPC Resolution #34, Series of 2013
MEETING DATE: December 2, 2013
BACKGROUND: On November 13, 2013, the Historic Preservation Commission (HPC)
approved Conceptual Major Development, Demolition, On-site Relocation and Variances for
redevelopment of a landmarked property located at 201 E. Hyman Avenue.
201 E. Hyman Avenue is an 8,000 square foot lot that contains a Victorian home and an
outbuilding. The property owner requested HPC approval to demolish all non-historic
construction on the site, to lift the house for basement excavation, to make an addition to the
house, and to move the outbuilding on the site. The project is represented in the attached
drawings. Staff recommended approval, and HPC voted in favor by 4-0.
Council recently discussed, but did not approve, a height variance for a lightwell at the center of
the site. The applicant will reduce the lightwell for Final HPC review so that no variance is
needed. A code amendment affecting lightwells will be proposed by staff in the near future.
PROCEDURE: This is not a public hearing and no staff or applicant presentation will be made at
the December 2nd Council meeting. If you have any questions about the project, please contact
the staff planner, Amy Simon, at 429-2758 or amy.simon@cityofaspen.com. Pursuant to Section
26.412.040(B), notification of this HPC approval must be placed on City Council’s agenda
within 30 days, or as soon thereafter as is practical under the circumstances. City Council has
the option of exercising the Call Up provisions outlined in Section 26.412.040(B) within 15 days
of notification on the regular agenda.
City Council may vote to Call Up the project at the December 2nd meeting. If City Council does
not exercise the Call Up provision, the HPC Resolution shall stand, and the applicant will pursue
Final HPC design review.
ATTACHMENTS:
Exhibit A: Conceptual Design
Exhibit B: Draft HPC Resolution #34, Series of 2013
Exhibit C: Draft HPC minutes of November 13, 2013
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201 E. Hyman Avenue
HPC Resolution #34, Series of 2013
Page 1 of 2
A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC)
GRANTING MAJOR DEVELOPMENT (CONCEPTUAL), DEMOLITION,
RELOCATION, AND VARIANCE APPROVAL FOR THE PROPERTY LOCATED AT
201 E. HYMAN AVENUE, LOTS A, B AND THE WEST 2/3RD OF LOT C, BLOCK 76,
CITY AND TOWNSITE OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO
RESOLUTION #34, SERIES OF 2013
PARCEL ID: 2735-124-73-001
WHEREAS, the applicant, 201 EH Investments LLC, represented by Guerin Glass Architects and
1 Friday Design Collaborative, requested HPC Major Development (Conceptual), Demolition,
Relocation, and Variance approval for the property located at 201 E. Hyman Avenue, Lots A, B
and the west 2/3rd of Lot C, Block 76, City and Townsite of Aspen; and
WHEREAS, Section 26.415.070 of the Municipal Code states that “no building or structure
shall be erected, constructed, enlarged, altered, repaired, relocated or improved involving a
designated historic property or district until plans or sufficient information have been submitted
to the Community Development Director and approved in accordance with the procedures
established for their review;” and
WHEREAS, for Conceptual Major Development Review, the HPC must review the application,
a staff analysis report and the evidence presented at a hearing to determine the project’s
conformance with the City of Aspen Historic Preservation Design Guidelines per Section
26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC
may approve, disapprove, approve with conditions or continue the application to obtain
additional information necessary to make a decision to approve or deny; and
WHEREAS, for approval of Demolition, the application shall meet the requirements of Aspen
Municipal Code Section 26.415.080.A.4, Demolition of Designated Historic Properties; and
WHEREAS, for approval of Relocation, the application shall meet the requirements of Aspen
Municipal Code Section 26.415.090.C, Relocation of a Designated Property; and
WHEREAS, in order to receive approval for a floor area bonus, the application shall meet the
requirements of Aspen Municipal Code Section 26.415.110.F; and
WHEREAS, the HPC may approve setback variances according to Section 26.415.110.C.1.a,
Variances; and
WHEREAS, the HPC may approve variances to the Residential Design Standards according to
Section 26.410.020.D; and
WHEREAS, at their regular meeting on November 13, 2013, the Historic Preservation
Commission considered the application, the staff memo and public comments, and found the
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201 E. Hyman Avenue
HPC Resolution #34, Series of 2013
Page 2 of 2
proposal consistent with the review standards and granted approval with conditions by a vote of 4
to 0.
NOW, THEREFORE, BE IT RESOLVED:
That HPC hereby grants HPC Major Development (Conceptual), Demolition, Relocation and
Variance approval for the property located at 201 E. Hyman Avenue with the following
conditions:
1. HPC hereby grants a 500 square foot floor area bonus.
2. HPC hereby grants a front yard setback reduction of up to 5’ at the front porch, and a west
sideyard setback reduction of 3’ at a bay window, a 4’ west sideyard reduction for a new
lightwell alongside the Victorian, a 5’ rear yard setback variance and 5’ west sideyard setback
variance for the relocated outbuilding.
3. HPC hereby grants a waiver from the Residential Design Standards related to “build-to line”
and grants a waiver from the Residential Design Standards related to “lightwells” for the
lightwell on the west side of the Victorian house.
4. At building permit submission, provide a $45,000 letter of credit, cashier’s check, or other
form acceptable to the City Attorney to insure the safe relocation of the house and
outbuilding. A relocation plan detailing how and where the buildings will be stored and
protected during construction must be submitted, and the applicant shall include
documentation of the existing elevation of the buildings and the relationship of the
foundation to grade.
5. For Final review, the applicant must restudy the east façade of the Victorian related to the
connector and the lightwell below the historic door. The applicant must also restudy the size
of the central lightwell, or pursue a height variance.
6. A development application for a Final Development Plan shall be submitted within one (1)
year of November 13, 2013, the date of approval of a Conceptual Development Plan. Failure
to file such an application within this time period shall render null and void the approval of
the Conceptual Development Plan. The Historic Preservation Commission may, at its sole
discretion and for good cause shown, grant a one-time extension of the expiration date for a
Conceptual Development Plan approval for up to six (6) months provided a written request
for extension is received no less than thirty (30) days prior to the expiration date.
7. HPC recommends that City Council support the applicant’s request for a height variance.
APPROVED BY THE COMMISSION at its regular meeting on the 13th day of November,
2013.
______________________
Jay Maytin, Chair
Approved as to Form:
___________________________________
Debbie Quinn, Assistant City Attorney
ATTEST:
___________________________
Kathy Strickland, Chief Deputy Clerk
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Karen asked if the restudy is without any kitchen addition. The board said a
kitchen addition could occur.
Charles pointed out that there is always some level of disturbance to the
historic structure must to make it work. We are only asking to touch the part
that was disturbed.
MOTION: Jim moved to continue 549 Race Alley until December 11th;
second by Nora. All in favor, motion carried.
Willis said in the restudy you should include options that don’t disturb the
wall in question.
201 E. Hyman – Conceptual Major Development, Demolition, On-Site
Relocation and Variances, Pubic Hearing
Debbie said there was a glitch in the notice and it has been re-noticed for this
evening. Exhibit I.
Amy said this is a corner lot zoned mixed use; however the applicant in this
particular case is proposing a single family residence use which is a
significantly lower square footage. It is an 8,000 square foot lot and it
contains a very high quality and nicely designed Victorian era home that sits
in the front corner of the lot. There is also an out building along the alley.
The house is 1883 and has an important family history. The applicant is
proposing to remove non-historic 1990’s additions on the house and strip
back to the original building. They propose to pick up the historic house,
dig a basement and put it back down. They would also like to move the shed
somewhat because it sits partially in the alley off the private property. They
would like to pick it up and move it toward Aspen Street on the corner
which is traditional in town. They would like to build an addition to the
house which would be linked to the Victorian house through a connector
which is a one story small linking hallway that leads to a two story addition
that is right up against the Limelight. It is pushed as far away from the
historic resource as possible and it has a very simple form with a gable roof.
There are setback variances requested for the historic house just to allow it
to stay in the same location as it is now. The applicant is requesting a
variance on the Aspen Street side for a new light well and variances are
requested for the out building on the alley to be right up to the alley which is
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MINUTES OF NOVEMBER 13, 2013
8
traditional. They are also requesting some Residential Design Standard
variances. Technically the new construction should be closer up the street
on Hyman Ave. which isn’t what the HPC guidelines want so we suggested
a variance be given for the build to line. The light well needs a variance on
the Aspen Street side. There is also a FAR bonus request and staff finds that
it meets all the criteria for the 500 square foot FAR bonus. The house and
the out building are going to be restored back to their original shape. There
is substantial open space on the property which give a good relationship to
the historic structures. Staff recommends approval and the only areas for
restudy are on the east side of the Victorian house. The attachment should
be lighter and not remove any more of the historic fabric than necessary
where the two points meet. A light well should be moved from in front of
the door to one side or the other. The below grade living space has a large
light well in the center of the site and it isn’t visible from the street but
height is measured from the bottom of the light well and the applicant will
be going to city council for a 5 foot variance.
Derek Skalko, architect
E-mails and correspondence – Exhibit II
Derek said they have reached out to make sure everyone knows what is
going on. The piece in question for the height variance is actually the stair
tower. It is 20.9 inches in height. If we do not get the variance we will
make the light well smaller. By doing the light well it make a greater
amenable use of space in the lower level. There are no changes to this
Victorian house and we are 22 feet back from the property line on Hyman
Avenue. The new construction of this project is proposed to abut the
Limelight Lodge. The shed will move forward toward S. Aspen Street. We
are asking for a zero lot line variance. The shed currently sits two feet three
inches off the property and we are actually putting the shed back onto the
property. The addition canvases the Limelight Lodge. This proposal allows
for a two stall garage.
Jay asked about the above square footage of the new addition. Derek said
the allowable square footage is 3200 approximately. The historical aspects
are around 1,500. We are looking at around 1250 to 1400 when you talk
about the garage, second floor massing and the first floor massing that are
attributed to the connection element. We have moved the light well to the
south so that there is no hanging door. By right with a mixed use we could
go up to 16,000 square feet.
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Chairperson, Jay Maytin opened the public hearing.
Peter Jacobsen, board member of 210 Cooper. Peter thanked Amy for
sending him all the pertinent information. We overall support the project
but we have two concerns. The five foot variance where the garage is.
Immediately across is the ramp for our parking garage which is under the
building. It is tight and a dead end. We also have parking straight in toward
the building and it is difficult to maneuver. On the new outbuilding it looks
too high.
Amy said they comply with the height limit.
Peter said our only concern is the five foot setback.
Valerie McDonald asked about the roofing material and if it is a non-glare
and if the light well will be lit at night.
Willis said the light well is lined with glass to lighten the underground
space.
Amy said a letter from Bob Leatherman, secretary of 2120 Cooper was
entered into the records – Exhibit III. Bob expressed their concern about
the variance for the out building along the alley and variances in general
being requested for the project.
Chairperson, Jay Maytin closed the public comments.
Jay identified the issues:
Variance on the garage. The variances on the Victorian structure is
essentially housekeeping. The house has historically been there before there
were setback requirements. The historic siting of this house is very
important to the preservation of the house.
Willis said the garage is in compliant with its five foot setback. Derek did a
great job of explaining the existing condition in the alley. The proposal is
bettering the alley condition. Regarding the height variance I am all for it.
HPC can’t approve it just by the virtue of the criteria which is hardship.
This is a self-created hardship. It is clearly a conflict with good intentions
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MINUTES OF NOVEMBER 13, 2013
10
with the code and of being in odds with a good design. One of the criteria
might be if it can be proved that the design is better by approving this height
variance then it should be granted. You shouldn’t have to go in front of
council. That kind of language could be broadly stated and put in any design
guideline. A design person’s worse nightmare is to be foiled by design
regulations that inhibit good design and this is the case where that might be
happening. It has been explained well to us and Derek will do a good job
Monday night.
Nora also agreed with Willis. This design stepping down from the Limelight
really highlights the historic house. Nora asked if the garage could be pulled
back two feet.
Jim also asked if the garage could be pulled back in response to the
commentary about the alley.
Willis said the garage is already taking two or three feet out of the alley right
now. By placing it on the property line he is giving back two or three feet.
Jay thanked the applicant for moving the light well. Jay also said he
supports the light well height variance. Jay said the five foot variance on the
garage is an improvement and the argument of accessibility with a vehicle
doesn’t stand because it wouldn’t be appropriate to drive one tire onto this
property in order to use the garage for 210 Cooper. Moving the garage to
the corner is appropriate. At final we will talk about building materials and
light pollution.
Derek said the only way you could see into the interior light well is maybe
from 2010 East Cooper’s peak of their roof because they are about 11 feet
taller than we are proposing for the project. You would have to come up to
about 52 feet before seeing into it. On the roof we are proposing a paint
locked metal, gunmetal gray which non-reflective. On the vegetation
between the building there is ten feet two inches between the Limelight and
the new proposed construction. In reality we are going to try the vegetation
but we aren’t sure it will work and we might have to do some kind of
shrubbery. The garage is around two feet into the community property and
we are actually pushing the new construction back five feet from the
property line. It is 7 feet plus improvement for the situation. When we pull
the garage back the overhang will not be over the property line.
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MOTION: Jay moved to approve resolution #34 for 201 E. Hyman Ave.
adding #7 to recommend to City Council support for the height variance.
Motion second by Jim. All in favor, motion carried.
Roll call vote: Willis, yes; Nora, yes; Jim, yes; Jay, yes.
947 E. Cooper Ave. – Minor Development, continue the PH to Dec. 11th
Debbie said the public notice has been received.
MOTION: Jay moved to continue 947 E. Cooper to January 22nd at the
applicant’s request, second by Jim. All in favor, motion carried.
MOTION: Jim moved to adjourn, second by Nora. All in favor, motion
carried.
Meeting adjourned at 7:30 p.m
Kathleen J. Strickland, Chief Deputy Clerk
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EXECUTIVE SESSION
Date December 2, 2013 Call to order at: 2e
I. Councilmembers present: Councilmembers not present:
Ann Mullins ❑ Ann Mullins
® Steve Skadron ❑ Steve Skadron
/MAdam Frisch F-1 Adam Frisch
Art Daily ❑ Art Daily
Dwayne Romero ❑ Dwayne Romero
1I. Motion to o into executive session b
g y .0 - ; seconded by
Other persons present:
AGAINST:
FQR:
M Ann Mullins ❑ Ann Mullins
VSteve Skadron ❑ Steve Skadron
�.Adam Frisch ❑ Adam Frisch
Art Daily ❑ Art Daily
Dwayne Romero ❑ Dwayne Romero
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
R 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.
(d) Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic
and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the
purpose of committing, or avoiding prosecution for, a violation of the law;
f(e) etermining positions relative to matters that may be subject to negotiations; developing strategy for negotiations;
an structing negotiators;
(f) (I)Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if
the personnel matter involves more than one employee, all of the employees have requested an open meeting.
IV. ATTESTATION:
The undersigned attorney,representing the Council and being present at the executive session, attests that the
subject of the unrecorded portions of the session constituted confidential attorney-clie com�wcat,nn _
The undersigned chair of the executive session attests that the cussions ' thi e ec t' s si ere limited
to the topic(s)described in Section III, above. /
Adjourned at: