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AGENDA
CITY COUNCIL REGULAR MEETING
Amended 4/12/2021 2:45PM
April 13, 2021
5:00 PM, City Council Chambers
130 S Galena Street, Aspen
I.CALL TO ORDER
II.ROLL CALL
III.SCHEDULED PUBLIC APPEARANCES
A.Swearing In Ceremony of Mayor
B.Lights Out Proclamation
IV.CITIZENS COMMENTS & PETITIONS
(Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please
limit your comments to 3 minutes)
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V.SPECIAL ORDERS OF THE DAY
a) Councilmembers' and Mayor's Comments
b) Agenda Amendments
c) City Manager's Comments
d) Board Reports
VI.CONSENT CALENDAR
Resolution #023, Series of 2021 - Operating Lease for Truscott Tennis Facility
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Resolution #026, Series of 2021 - Cozy Point Amended Conservation Easement
Resolution #034, Series of 2021 - Paymentus Contract - Utilities Department
Payment Software
Resolution #035, Series of 2021 - Utility Easements and Trench, Conduit and Vault
Agreement at Cozy Point Ranch
Resolution #036, Series of 2021 - Wheeler Opera House Masonry Change Order –
Additional Paint Stripping & General Conditions
Draft Minutes of March 23rd, 2021
VII.NOTICE OF CALL-UP
VIII.FIRST READING OF ORDINANCES
Ordinance #09, Series of 2021 - Mask Zone
IX.PUBLIC HEARINGS
VIIIA.Ordinance #03, Series of 2021 - Establishment of Transferable Rights (TDR) - 314
West Main Street
VIIIB.Ordinance #04, Series of 2021 - Establishment of Transferable Development Rights
- 212 N Monarch St
X.ACTION ITEMS
XI.ADJOURNMENT
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MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Ben Anderson, Principal Long-Range Planner
MEMO DATE:April 2, 2021
MEETING DATE:April 13, 2021
RE:Proclamation: Lights Out Aspen
REQUEST OF COUNCIL:
Council is asked to support the Lights Out Aspen event through approving and reading
the provided Proclamation.
BACKGROUND AND SUMMARY:
City of Aspen and Pitkin County Community Development staff were approached by two
Aspen High School Students, Tessa Guilander and Brooke O’Sullivan. Tessa and Brooke
are members of the school’s Astronomy Club. The students are preparing a celebration
of the night skies in support of both astronomical observation and the benefits of reduced
energy use that is possible if we are thoughtful about lighting choices. Tessa and Brooke
introduced the idea to City Council during public comment at the February 9, 2021.
The Lights Out Aspen event will be held on April 22nd in witness of the annual Lyrid
meteor shower. Businesses, residents, and visitors are asked to turn off
unnecessary lighting for an hour (9:00p – 10:00p) in celebration and observation.
Tessa and Brooke have support from local media outlets and ACRA in getting the
word out about this event. While staff formatted the Proclamation, Tessa and
Brooke provided the “Whereas” statements.
Pitkin County BOCC will be making a similar proclamation at their regular meeting
on April 14th.
City of Aspen Utilities, Parks, and Asset Departments will participate in the event
related to city facilities and lighting – as is possible, feasible, and safe. Utilities has
worked with Engineering for a plan to turn off street lighting in a significant portion
of the downtown core for the evening of the 22
nd.
Pitkin County Community Development is further along in process than COA
ComDev, but both agencies are pursuing updates to our lighting codes in pursuit
of some of the objectives that this event is highlighting. Staff members across the
agencies have had initial discussions to coordinate lighting policies as much as
possible as we move forward.
CITY MANAGER COMMENTS
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PROCLAMATION
City of Aspen, Colorado
Incorporated 1881
WHEREAS, Lights Out Aspen is an hour-long event on the evening of April 22nd,
2021. It will be from 9:00 to 10:00 PM. During this hour, businesses, residents, and
visitors will be asked to turn off all unnecessary lights to see the stars and meteor shower;
and
WHEREAS, April 22nd falls on the week of the annual Lyrid meteor shower. The
meteors are at their peak on the night of the 22nd and will be the most visible. Earth is
passing through the tail of the comet C/1861 G1 Thatcher. Predictably, there will be
around 20 shooting stars per hour and over 100 meteors per hour; and,
WHEREAS, Those who participate will reduce light pollution and energy
consumption. There is a potential to see 2,500 to 5,000 stars at night. With light pollution,
only 200 to 300 are visible to the naked eye. Bringing awareness to light pollution may help
encourage the people to take part in the 'Dark Sky Initiative,' a global initiative dedicated
to light pollution specifically; and,
WHEREAS, for the best viewing of the stars and meteor shower, the weather has
to permit. If the weather on the 22nd interferes with the stars and meteor's visibility, the
Lights Out Aspen event will be moved to the following evening. The event will continue to
roll to the following evening if the weather conditions continue to block the night sky; and,
WHEREAS, In the United States, 21% of the annual energy consumption is used
residentially, and in Pitkin County, in 2014, 70% of our greenhouse gas emissions are
from powering buildings. Residents, businesses, and guests consume the vast majority of
Pitkin County's energy. In Aspen, 56% of the greenhouse gas emissions are from
residential and commercial buildings. If every resident of Pitkin County turned off their
lights for that hour, it would stop approximately 44 tons of CO2 from being emitted.
NOW, THEREFORE, BE IT RESOLVED that the Mayor, City
Council, and the Citizens of Aspen hereby proclaim April 22nd,
2021 as:LIGHTS OUT ASPEN and call upon the People of
Aspen to recognize and participate in this special observance.
By Order of the City Council This 13th Day of April, 2021
___________________________ ATTEST: _______
Torre, Mayor Nicole Henning, City Clerk
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MEMORANDUM
TO:Mayor and City Council
FROM:Cory Vander Veen, Recreation Director
THROUGH:Austin Weiss, Director of Parks and Recreation
Diane Foster, Assistant City Manager
MEMO DATE:April 1st, 2021
MEETING DATE: April 13
th, 2021
RE:Resolution #23 Operating lease for Truscott Tennis facility
REQUEST OF COUNCIL:The Recreation Department is requesting approval of a new lease
agreement with ZG2ZG Tennis LLC to operate the tennis facility at the City of Aspen golf
course.
SUMMARY AND BACKGROUND:The City of Aspen Parks and Recreation Department
maintains and operates this tennis facility at the City of Aspen Golf Course. The Tennis Club is
home to six regulation clay courts. The City of Aspen Parks and Recreation Department
operates the Aspen Tennis Club, with the goals of providing high-quality tennis instruction,
growth of youth participation in the sport, growth of the tennis program, and providing an
accessible high-quality tennis club experience to the public.
The Aspen Recreation Department has operated the Aspen Tennis Club and has provided all
tennis programming within the City’s Recreation umbrella. The tennis programming has seen
significant growth over the past four years due to the increased popularity of the sport in the
Valley. This demand for high level tennis programming has required a dedicated seasonal
director, and the need for competitive wages for seasonal tennis professionals.
DISCUSSION:In 2020, The Recreation Department, along with the Finance Department and
Human Resources, evaluated the operations of the facility and determined the future success of
the facility would be best served by contracting with an outside operator.
0%
20%
40%
60%
0
2000
4000
2017 2018 2019 2020
Tennis facilty use
participation numbers percent growth
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2
Multiple factors led to the decision to lease operations of the tennis facility. The first one is the
transition of staff such as the long-time seasonal tennis director and a tenured Recreation
manager retiring last year. The second, is that tennis wages have outgrown what is financially
equitable while under the City of Aspen compensation structure. Last, we are unable to support
a program that has this much rapid year-over-year growth with current available resources.
Aspen Recreation has put in key measures to assure that fees stay within acceptable growth,
ensure that the Aspen School District still has competitive use, and ensure that youth and adult
programming still stay a priority.
With these measures in place, Aspen Recreation completed a bid selection process in 2020 with
three operators submitting proposals. Based on an evaluation rubric, the proposal from ZG2ZG
tennis was selected. We selected ZG2ZG based on their references and operating proposal that
includes specific youth programming and an emphasis on community engagement. Staff feels
they are the best suited to provided high level tennis programming for the community moving
forward. The lease dates agreed upon are from May 31 to September 6 with extensions available
on either end depending on weather conditions. The proposed lease is for a three-year contract
with an option of an additional three years if performance measures are met. This contract is for
the sole use of the tennis facility at the golf course and does not include the multi-purpose public
tennis/pickleball courts that are operated by the Parks and Recreation Departments next to Iselin
field.
Financial impact: The Recreation Department has built into the 2021 operating budget a
reduction of these associated tennis expenses and revenues based on this lease contract. The
Department projects to see revenue of $10,000 in rent by this operator. The Parks Department
will continue annual upkeep and will oversee spring startup of the tennis facility courts which
equates to approximately $29,000 annually. The Recreation Department will manage this
contract and ensure all financial reports are submitted and all performance measures are
followed.
Recommendations: Staff recommends the approval of the new lease contract with ZG2ZG
Tennis LLC to operate the tennis facility at the Aspen Golf Course.
City Manager Comments:
Appendix A: Lease Contract
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RESOLUTION # 23
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND ZG2ZG, LLC. AUTHORIZING THE CITY MANAGER TO EXECUTE
SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for the
Lease of the Truscott Tennis facility, between the City of Aspen and ZG2ZG LLC,
a true and accurate copy of which is attached hereto as Exhibit “A”.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for lease of the Truscott Tennis facility building between the City of Aspen and
ZG2ZG, LLC., a copy of which is annexed hereto and incorporated herein, and
does hereby authorize the City Manager to execute said agreement on behalf of the
City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 13
th day of April, 2021.
Torre, Mayor
I, Nicole Henning, 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, April 13th, 2021.
Nicole Henning, City Clerk
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AGREEMENT FOR THE LEASE AND OPERATION OF
THE ASPEN TENNIS CENTER AT THE ASPEN GOLF AND TENNIS CLUB
THIS AGREEMENT entered into at Aspen, Colorado, this ____ day of March, 2021 by
and between the CITY OF ASPEN, COLORADO, a municipal corporation and home-
rule city ("hereinafter "City"), and ZG2ZG, LLC (hereinafter "Operator").
WITNESSETH
WHEREAS, the City is the owner of the Aspen Tennis Center in Aspen, Colorado, and
desires to contract with an operator to provide certain services during the summer seasons
for the operation of a Tennis Program at the Clay Tennis Courts commonly known as the
tennis courts, hereinafter referred to as the "Premises"; and
WHEREAS, Operator has agreed to provide certain services relative to the summer use
of the Tennis Center, as well as provide services regarding the general operation of the Tennis
Center.
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties agree as follows:
1. Term. The City herby grants Operator the exclusive right to use the Premises for the period
of one week prior to Memorial Day to one week after Labor Day of each calendar year (each
a “Lease Year”) beginning on May 24, 2021, extending through September 9, 2024. Operator
has an option to continue through October 15th of each year, which Operator may exercise by
delivering the City written notice of Operator’s intent to exercise this extension option on or
before Labor Day of the year in question. Upon mutual agreement by the parties, Operator
may renew this Agreement for an additional three (3) years, subject to the same terms and
conditions set forth herein as may be subsequently amended by the parties, by delivering the
City written notice of Operator’s intent to exercise this renewal option on or before Labor
Day, 2024.
2. Premises. The Premises subject to this Lease Agreement shall be the Tennis Shop and six
(6) clay tennis courts, together with non-exclusive rights to ingress, egress and parking in the
adjacent parking lot, all located at street address 3551 Highway 82, Aspen, CO 81611.
3. Use. The Premises may be used by Operator solely for the purpose of operating tennis
programming and providing services related thereto, including, but not limited to, retail
sales of tennis equipment, clothing and supplies, renting tennis equipment to the public,
for storage facilities, for use as a tennis center, for tennis lessons, for any and all uses
reasonably attendant to tennis operations. Operator shall not use the Premises for any other
purposes without the City’s written consent. Operator’s use and occupancy of the above-
described Premises shall comply with the rules, regulations and ordinances of any
governmental authority having jurisdiction over the Premises or the activities performed
thereon. Additionally, Operator shall not use the Premises in any manner that will create an
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increase in the rate of insurance or a cancellation of any insurance policy, even if such use
may be in furtherance of Operator's retail sales. Operator shall not keep, use or sell anything
prohibited by any policy of fire insurance covering the Premises.
4. Time of Occupancy, Acceptance and Surrender of Premises. Operator shall be entitled to use
and occupy the Premises during the summer season as set forth at Paragraph 1 herein.
Occupancy of the Premises by the Operator shall be construed as recognition that the Premises
are in a good state of repair and in sanitary condition. Operator will take use and occupancy of
the Premises throughout the dates outlined above (including any applicable extensions of the
season through October 15), of each year this agreement is in effect. The provision herein for
use and occupancy of the Premises may be varied on written understanding of the parties.
Operator shall coordinate with the City to ensure change in possession is orderly and timely.
A representative of the City shall inspect the Premises at the beginning and end of each season's
occupancy, with a representative from Operator to assess if any repairs are necessary and who
shall be responsible for them.
5. Rent. Operator agrees to pay ten percent (10%) of all gross sales up to $100,000 and fifteen
percent (15%) of all gross sales over $100,000 as defined herein. Operator shall pay its first
installment of percentage rent on or before the fifteenth (15th) day of the calendar month
immediately after the one in which the percentage rent became effective, and thereafter it
shall pay the required percent of each month’s gross sales by the fifteenth (15th) day of the
following month. Operator shall also submit to City an itemized statement of gross sales
(as defined below) and a sales tax report for the preceding month on or before the fifteenth
(15th) day of each calendar month during the term of this Lease and any renewal, extensions,
or holding over hereunder.
i) In addition, within thirty (30) days after the end of each Lease Year, Operator
shall deliver to City a written statement signed by a certified public accountant or
by some other person acceptable to City, setting forth the amount of Operator ' s gross
sales for the preceding Lease Year. Accountant or other person shall certify that the
gross sales have been computed in accordance with the definition given below, and
the statement shall be sufficiently detailed to show it was in fact prepared in
accordance with such definition. If the percentage rent for the Lease Year is more
than the total thereof actually paid by Operator, Operator shall pay the balance
due to City within thirty (30) days of delivery of the annual statement.
ii) The term "gross sales" as used in this Lease Agreement shall mean the full
amount of the actual sales price of all merchandise or services sold for cash or
credit in or from the Leased Premises by the Operator. The figure for gross sales
will include deposits not refunded to customers, orders of any kind received or filled
at the leased Premises, receipts from vending machines located upon the leased
Premises, and any other receipts which the Operator ordinarily would credit to his
business. Each credit or installment sale will be treated as a sale for the full price in
the month it is made, and there will be no deductions for uncollected accounts or bad
debts.
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iii) The term “gross sales” as used in this Lease Agreement shall not include:
1) refunds or discounts extended to customers;
2) refunds received by Operator from returns to shippers and manufacturers;
3) sales of trade fixtures or operating equipment;
4) sums received in settlement of claims of loss or damage of merchandise;
5) retail sales tax recorded at the time of each sale and expressly charged to the
customer;
6) postage charged to customers;
7) co-operative advertising revenues provided by suppliers; or
8) any property or sales taxes paid by Operator.
iv) In operating on the leased Premises, the Operator agrees to issue a serially-
numbered duplicate sales slip, invoice, non-resettable cash register receipt, or other
record approved by City, with each sale of any kind. During the term of the Lease
Agreement, Operator shall keep accurate records of all his operations. These
records shall conform to generally accepted accounting practices, and shall include
records of gross sales and of receipts and deliveries of all merchandise. Operator
shall keep all the documents relating to Operator's operations for at least thirty-six (36)
months from the end of the Lease Year to which they apply. If any audit is required,
or Operator and City disagree about the rent, Operator will keep its records until the
audit is completed or the disagreement is settled.
v) At any reasonable time, and following at least twenty-four (24) hours’ notice
in writing to Operator, City or City 's authorized representative may audit any of
Operator ' s records of gross sales. If, when City audits the records for a Lease
Year based on normal accounting procedures, it finds that the Operator has
understated its gross sales for the Lease Year by five percent (5 %) or more,
Operator shall be required to pay for the audit, and shall promptly deliver to City the
difference Operator owes it, plus interest on such difference at the rate of eight
percent (8 %) per annum from the first day of the current Lease Year to the date
such difference is paid. If such audit discloses that Operator has understated his
gross sales for that Lease Year by five percent (5 %) or more, City shall be permitted
to treat such event as a material default hereunder. In this matter, the report of City’s
accountant shall be binding and conclusive.
6. Access to Premises. City shall be entitled to enter upon the Premises at all reasonable
hours for the purpose of inspecting the same, preventing waste or loss, or enforcing any of
City's rights hereunder.
7. Duties of Operator Relative to Operation of Tennis Center. During the term of this
Agreement the Operator agrees:
a. To provide the Tennis-related services described in this Agreement for
each summer season for which this Lease Agreement is in effect.
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b. To employ and maintain for the benefit of the parties, at Operator's own
cost and expense, employees of sufficient number and qualifications to
operate and manage the Premises consistent with the highest professional
standards of quality, courtesy, and customer service.
c. To perform the following general duties, at the discretion of Operator,
with pricing applicable only for the first Lease Year and thereafter
adjusted by Operator following the written approval of the Recreation
Department, which approval shall not be unreasonably withheld:
i. Operate a Tennis school for ages five to adult.
ii. Offer monthly and seasonal membership packages
• Operator will offer memberships for community, ranging
between $75 per month for a single membership and
$120 per month for a family membership
iii. Establish a Junior Development Program with a minimum of 10
weekly clinics at a fee ranging between $25 (60 minute) and $35
(90 minute) per clinic.
iv. Establish an Adult Clinic Program with a minimum of 4 weekly
clinics at a fee ranging between $25 (60 minute) and $45 (90
minute) per clinic.
v. Schedule a minimum of four (4) mixers and/or tournaments
during the summer season.
vi. Offer racket stringing.
vii. Maintain a wide range rental inventory sufficient to meet the
projected needs and demands of the programs offered.
viii. Provide the City of Aspen with monthly reports showing activity
counts, revenues and expenses.
ix. Allow use of Tennis Courts for use by the Aspen High School.
Operator will determine number of available courts and available
times for the Aspen High School Boys Tennis Team practices.
d. To keep full records and accounts in regard to the operation and
management of the Premises, which records and accounts shall be
available at the end of the summer season for inspection by the City’s
auditors and/or Finance Director.
e. To make available for retail sale such merchandise as is commonly sold
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in Tennis-oriented operations; Operator agrees to maintain an adequate
inventory of such merchandise. Operator shall devote its best energies
and adequate time to the promotion of sales at the Premises and may
engage in similar sales at its business locations in the City of Aspen,
provided such off-premises sales do not interfere with Operator 's duties
hereunder.
8. Duties of the City Relative to the Tennis Center. During the term of this Agreement the
City agrees:
a. To maintain the tennis courts property from Memorial Day until Labor
Day. As Operator is largely dependent on the tennis courts for its
revenues, should the City be unable to continue the maintenance of the
courts for any reason Operator shall be released from its obligations under
the lease until such time as the City is able to resume its duties in this
regard.
b. To permit Operator to use the Premises for Operator’s sole use and
occupancy with respect to its duties and privileges under this Agreement.
c. Operator is allowed to get access to the tennis building 7 days prior to
Court completion to allow set up of interior space.
d. To set-up and take down and maintain windscreens, divider nets, tennis
court nets, tennis courts, and fixed assets (such as the court surfaces,
fences, etc). Replacement of fixed assets must go through a multiple year
request process through the City of Aspen. At the end of each season
Operator can request replacement of assets for next year.
e. City shall maintain irrigation system relative to the tennis courts.
f. No business other than the City shall be allowed to store equipment at the
tennis courts.
9. Utilities. Utilities, including water, trash/recycling, coaxial cable/internet hookups, and
electric, will be provided and paid by the City of Aspen.
10. Personal Property. All personal property and trade fixtures placed on the Premises shall
be at Operator's sole risk and City shall not be liable for damage to or loss of such personal
property or trade fixtures arising from the acts or neglect of Operator, its agents or
employees. Any personal property or trade fixtures of Operator or anyone claiming under
Operator, which remains on the. Premises after the date upon which the Premises is
surrendered shall be deemed to have been abandoned and may be retained by City as its
property or disposed of by City in such a manner as City sees fit.
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11. Taxes. In the event any taxes are levied and assessed upon the Premises or upon the
improvements, fixtures or personal property of the Operator during the term of Operator's
occupancy of the Premises or arising therefrom, or upon the leasehold or possessory
interests as created through this lease, Operator shall be solely responsible to satisfy and
pay all such taxes in a timely fashion. Operator shall not allow any liens for taxes or
assessments to exist with respect to the Premises, except that Operator may permit such
taxes or assessment to remain unpaid while pursuing any good faith contest or appeal of same.
12. Indemnification. Operator agrees to indemnify and hold harmless the City, its officers and
employees, from and against all liability, claims, and demands, on account of injury, loss,
or damage, including, without limitation, claims arising from bodily injury, personal injury,
sickness, disease, death , property loss or damage, or any other similar loss , which arise
out of or are in any manner connected with this Agreement, if such injury, loss, or damage
is caused in whole or in part by, or is claimed to be caused in whole or in part by, the
omission, error, or negligence of the Operator , any subcontractor of the Operator, or
which arises out of any workmen's compensation claim of any employee of the Operator
or of any employee of any subcontractor of the Operator. To the extent allowed by law, the
City agrees to indemnify and hold harmless the Operator, its officers and employees, from
and against all liability, claims, and demands, on account of injury, loss, or damage,
including, without limitation, claims arising from bodily injury, personal injury, sickness,
disease, death , property loss or damage, or any other similar loss , which arise out of or are
in any manner connected with this Agreement, if such injury, loss, or damage is caused in
whole or in part by, or is claimed to be caused in whole or in part by, the omission, error,
or negligence of the City, any subcontractor of the City, or arises out of any workmen's
compensation claim of any employee of the City or of any employee of any subcontractor
of the City.
13. Public Liability Insurance. Operator agrees to furnish City with certificate(s) of insurance as
proof that it has secured and paid for a policy of public liability insurance covering all
public risks related to the leasing, use, occupancy, maintenance, operation or location of
the Premises. The insurance shall be procured from a company authorized to do business
in the State of Colorado and be satisfactory to City. The amount of this insurance, without
co-insurance clauses, shall not be less than the maximum liability that can be imposed upon
the City of Aspen under the laws of the State of Colorado found at C.R.S. 24-10-101 et
seq., as amended. At present, such amounts shall be as follows:
$350,000.00 for any injury to one person in any single occurrence
$990,000.00 for any injury to two or more persons in any single occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set
forth at C.R.S. 24-10-114, as amended.
14. Premises Insurance. During the full term of this Agreement, Operator, at its sole cost and
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expense, shall also cause all of the furniture, fixtures, and equipment (excluding the ball
machines) in the premises to be kept insured, without co-insurance clauses, to the full
insurable value against the perils of wind, storm, hail, lightning, explosion, fire and like
perils. "Full insurance value" means the cost, as of the date of loss, for replacement of
the damaged or destroyed property in a new condition with materials of like size, kind and
quality. The insurance shall stand as primary insurance for the furniture, fixtures, and
equipment in the Premises to be procured from a company authorized to do business in
the State of Colorado and be satisfactory to the City. All policies as required herein shall
contain a waiver of subrogation by the insurer against City. A complete list of equipment
needs will be established at the beginning and end of each season.
15. Termination Due to Fire or Similar Catastrophe . If negligent on part of operator , the
Premises shall be damaged by fire or other catastrophe so as to render said Premises wholly
inoperable, and if such damage is so great that a competent licensed architect in good
standing in Pitkin County, Colorado, as selected by the City within fourteen (14) days from
the date of loss, shall certify in writing to the City and Operator that the Premises, with
reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the
happening of the occurrence of the damage, then this Agreement may terminate and City
may re-enter and take possession. Such a termination of the Agreement shall not forgive
Operator's obligations to return the Premises to City in as good repair as when operator
originally assumed possession thereof, regular and ordinary wear and tear excepting.
Alternatively, Operator shall subordinate its rights and interests in any insurance proceeds
as provided for in any insurance policy as required by this Agreement. If, however, the
damage is not such as to prevent reoccupation and use of the Premises within ninety (90)
days, then repairs thereto shall be undertaken by Operator with all reasonable speed to
restore the Premises to its former condition and the Agreement shall remain in effect.
Operator's duties and obligations to provide services and to pay rent to the City as herein
set forth shall be suspended during those time periods wherein the Premises are unfit for
normal business activities due to fire or other catastrophe, and/or repair activities associated
therewith.
16. City to be named a Co-Insured or Additional Insurance . Operator shall name City as co-
insured or additional insured on all insurance policies and such policies shall include a
provision that written notice of any non-renewal, cancellation or material change in a policy by
the insurer shall be delivered to City thirty (30) days in advance of the effective date.
17. Repairs and Alterations by Operator. Operator, upon City’s written consent, may, at its own
expense, make reasonable and necessary alterations or improvements to the Premises. All
alterations, additions and improvements shall be performed in a workmanlike manner, in
accordance with all applicable building and safety codes, and shall not weaken or impair the
structural strength or lessen the value of the Premises. All alterations, additions and
improvements made in or to the Premises shall be the property of City and remain and be
surrendered with the Premises upon termination of this Agreement. Operator agrees that prior to
any construction or installation of alternations, additions or improvements, Operator shall post
on the Premises in a conspicuous place a notice of non-liability for mechanic's lien as specified
at C.R.S. Section 38-22-105 on behalf of the City and shall notify City of such posting and
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the exact location of same. Perfection of a mechanic's lien against the Premises as a result of
Operator's acts or omissions may be treated as a material breach of this lease.
18. Repairs and Alterations by City . City reserves the right, from time to time, at its own expense
and by its officials, employees and contractors, to make such alterations, renovations or
repairs in and about the Premises, other than those noted above as required by Operator, as
City deems necessary or desirable and Operator covenants to make no claim against City
for any interference with its interest as herein provided in the Premises. City shall provide
reasonable notice to Operator in advance of any intent to undertake alterations or repairs as
authorized in this paragraph and all work shall be performed at such times as mutually agreed
to between the parties so as to eliminate or minimize any disruption of Operator's business.
19. Condemnation. If dur ing the term of this Agreement, or any renewal of it, the whole or part
of the Premises, or such portion as will make the Premises unusable for the purpose leased,
or the leasehold interest, be condemned by public authority, including City, for public use,
then this Agreement shall cease as of the date of the vesting of title in the Premises in such
condemning authority, or when possession is given to such authority, whichever event occurs
first. Operator shall not be entitled to any part of any condemnation award for the value of the
unexpired term of this Agreement or for any other estate or interest in the Premises, such amount
belonging entirely to City.
20. Assignment of Agreement . Operator shall not assign, pledge, sublease or otherwise dispose of
or encumber this lease, or the leased Premises, without the prior written consent of the City,
which consent shall not be unreasonably withheld. Operator shall, likewise, not permit any
third party to occupy or use the Premises absent the prior written consent of the City.
21. Signs. Operator shall not place any signs upon the Premises or upon the buildings except of such
design and construction as may be permitted by City. It is understood by the parties that placement
of an identification sign or signs is important and necessary to Operator's business. Any sign
permitted by City shall at all times comply with applicable ordinances, rules and regulations.
22. Breach by Operator Defined. If Operator shall fail to timely comply with any of the terms or
conditions of this Agreement or any notice given under it, or shall become insolvent, or shall
have or attempt to make an assignment for the benefit of creditors, or if any of its property be
attached and such attachment is not promptly released, or if an execution be issued against it, or
if a petition be filed by or against it, to have it adjudicated a bankrupt, or if a trustee or receiver
shall be created or appointed to take charge of its assets, or if it shall abandon the Premises
for a period of more than seventy-two (72) hours, then at any time afterwards City may treat
such act or omission as a breach of this Agreement and, at its option, enter into the Premises
and remove all persons and take and retain possession thereof either with process of law.
23. City’s Remedy for Breach. Any breach, default or failure by Operator to perform any of the
duties or obligations assumed by Operator under this Agreement shall be cause for termination
of the Agreement by City in the manner set forth in this paragraph. City shall deliver to Operator
thirty (30) days' prior written notice of its intention to terminate this Agreement, including in
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9
the notice a reasonable description of the breach, default or failure. If within that thirty (30)
days Operator shall fail or refuse to cure, adjust or correct the breach, default or failure to the
reasonable satisfaction of City, the City shall have the right to declare this Agreement terminated
and all rights, powers and privileges of Operator as provided through the Agreement shall cease,
and Operator shall immediately vacate the entire Premises and shall make no claim of any kind
against City by reason of the termination. The thirty (30) days' prior written notice shall be
conclusively determined to have been delivered to Operator by the posting of same upon the
main business entrance to the Premises, or at the time it is deposited in the U.S. Mail, certified,
postage prepaid, addressed to the address set forth at Paragraph 29 herein.
24. Non-Waiver of Rights. Any failure by City to so terminate this Agreement as herein provided
after the breach, default or failure by Operator to adhere to the terms of the Agreement shall
not be deemed or construed to be a waiver or continuing waiver by City of any rights to terminate
the Agreement for any present or subsequent breach, default or failure.
25. Termination by Operator. Operator may terminate this Agreement and be relieved of all
obligations hereunder by providing City thirty (30) days' written notice of its intent to terminate.
Operator shall provide a full accounting of all funds, costs and equipment upon termination.
26. Non-Discrimination. Operator agrees to comply with all laws, ordinances , rules and regulations
that may pertain or apply to the Premises and its use. In performing under the Agreement,
Operator shall not discriminate against any worker, employee or job applicant, or any member
of the public, because of race, color , creed, religion, ancestry, national origin, sex, age, marital
status, physical handicap, affectional or sexual orientation, family responsibility or political
affiliation, nor otherwise commit an unfair employment practice.
27. Independent Contractor Status. It is expressly acknowledged and understood by the parties that
nothing contained in this Agreement shall result in, or be construed as establishing an
employment relationship. To the extent that this Agreement may be construed as requiring
Operator to provide services to or on behalf of City, Operator shall be, and shall perform as,
an independent contractor who agrees to use his or her best efforts to provide the said services
on behalf of the City. No agent, employee, or servant of Operator shall be, or shall be deemed
to be, the employee, agent or servant of the City. City is interested only in the results obtained
under this Agreement. The manner and means of conducting the work are under the sole control
of operator. None of the benefits provided by City to its employees including, but not limited
to, workers' compensation insurance and unemployment insurance, are available from City to
the employees, agents or servants of Operator. Operator shall be solely and entirely responsible
for its acts and for the acts of Operator's agents, employees, servants and subcontractors
during the performance of this Agreement. Operator shall indemnify City against all liability
and loss in connection with, and shall assume full responsibility for, ·payment of all federal ,
state and local taxes or contributions imposed or required under unemployment insurance,
social security and income tax law, with respect to Operator and/or Operator's employees
engaged in the performance of the services agreed to herein.
28. Notice. Whenever this Agreement calls for or provides for notice and notice is not otherwise
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10
specified, the same shall be provided in writing and shall be served on the person( s) as
designated by the parties below, either in person or by certified mail, postage prepaid and
return receipt requested.
For City: Aspen City Manager
130 South Galena Street Aspen, Colorado 81611
For Operator: ZG2ZG, LLC
40 Twin Ridge Dr., Aspen, CO 81611
The parties may change or add such designated person(s) or addresses as may be
necessary from time to time in writing.
29. Binding Effect. All of the terms and conditions as contained in this Agreement shall inure
to the benefit of and be binding upon the successors and assigns of the parties.
30. Controlling Law. This Agreement shall be enforced and interpreted in accordance with
the laws of the State of Colorado. Any action brought to enforce or interpret this Agreement
shall be brought in the District Court in and for Pitkin County, Colorado. In the event of
litigation between the parties concerning this Agreement or matters arising therefrom, the
prevailing party shall be awarded its costs and reasonable attorney’s fees.
31. Entire Agreement. This instrument constitutes the entire Agreement by the parties
concerning the Premises and shall supplant and supersede any previous agreements
between the parties pertinent to the Premises. Any prior or contemporaneous oral or
written agreement that purports to vary from the terms as set forth herein shall be void
and of no effect.
32. Amendments. Except as otherwise provided herein, this Agreement and all of its terms
and conditions may not be amended or modified absent a written agreement duly executed
by the parties.
WHEREFORE, the parties, through their duly authorized representatives, have executed this
Agreement upon the dates as forth herein.
[Remainder of this page intentionally blank, signature page follows]
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CITY OF ASPEN
_________________________________
Sara Ott, City Manager Date:
OPERATOR:
ZG2ZG LLC
By:____________________________
Petra Crimmel Date
Title: _______________________
By:____________________________
Karen Lutz Date
Title: _______________________
DocuSign Envelope ID: 6E8B08EC-B5FA-40E5-B688-5303DEDF9E04
Managing partner
3/29/2021 | 10:35:05 AM PDT
3/29/2021 | 3:09:53 PM PDT
Partner
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MEMORANDUM
TO:Mayor and City Council
FROM:John Spiess, Open Space and Natural Resource Manager, Parks and Open Space
THROUGH:Matt Kuhn, Parks and Open Space Director
MEETING DATE: April 13, 2021
RE:Amended and Restated Deed of Conservation Easement Cozy Point Ranch,
Resolution #026
REQUEST OF COUNCIL:
Staff is seeking Council approval for the Amended and Restated Conservation Easement at Cozy Point
Ranch.
SUMMARY / BACKGROUND:
Cozy Point Ranch, a 168-acre parcel owned by the City of Aspen, was originally put under conservation
easement in 2003 with the Aspen Valley Land Trust (AVLT). The City of Aspen has worked with (AVLT)
over the past year to amend this conservation easement to closer align with the goals of the Cozy Point
Ranch Management Plan. This management plan was adopted by the City of Aspen on March 27th, 2017
after an extensive public process (Resolution # 059-17).
DISCUSSION:
The vision for the property as stated within the management plan is as follows:
“Preserving our valley’s ranching heritage and fostering ecological & community health through
innovative management approaches that provide locally-grown food and enhance equestrian and
agricultural operations, while connecting the community with the land.”
To achieve this vision, it was necessary to revisit the existing conservation easement and modify the
location and extent of the activity envelopes. This revision creates a central core within the ranch from
which both Lessees, The Farm Collaborative and Cozy Point LLC, can run their operations in accordance
with the 2017 Management Plan. The amendment to the conservation agreement extinguishes the
City’s ability to build polo grounds and/or a soccer complex on the property. As part of the process two
of the three activity envelopes have been consolidated on the central portion of the ranch and their
overall size has been reduced from 24 acres to 21 acres.
Below we have outlined the critical changes to the conservation easement captured within the amended
and restated Conservation Easement.
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Activity Envelope & Use:
2003 CE:“all enclosed buildings (excluding horse pasture shelters) limited to a building envelope not to
exceed ten acres, as shown in Exhibit A.”
“D. Use of up to 12 acres of the south pasture for polo and/or soccer playing field, along with standard
field amenities such as parking, spectator facilities and restrooms, but no lighting as are consistent with
the City of Aspen Resource Management Plan, provided any permanent facilities are located along the
Western side of the pasture to preserve a greenbelt area along Highway 82.”
“E. Use of approximately 2 acres for the operation of an archery range”
2021 A&R CE:“Landowner retains a 19-acre activity envelope, ”Activity Envelope A”, and a 2-acre activity
envelope for use of the archery range, “Activity Envelope B”.
Building and Improvements:
2003 CE:“To erect, maintain or replace one single family home of up to 4,000 square feet, to erect,
maintain or replace five Employee Dwelling Units of up to 1,000 square feet each.”
2021 A&R CE: “Construct, locate, rebuild, remodel, relocate, maintain, or replace up to total of 9,000
square feet of residential structures”
FINANCIAL/BUDGET IMPACTS:
The closing costs for this agreement are $7,500. The costs will be paid from the Parks Fund (100) within
the Cozy Point programs operational budget.
ENVIRONMENTAL IMPACTS:
The consolidation of the activity envelope and the removal of playing fields as a potential use will
protect a larger portion of the ranch from potential human impacts.
STAFF RECOMMENDATION:
Staff recommends approval of the amended and restated conservation easement.
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RESOLUTION #026
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING AN AMMENDMENT TO THE CONSERVATION
EASEMENT FOR COZY POINT RANCH AUTHORIZING TORRE, MAYOR,
TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council an amended and
restated deed of conservation easement to the Aspen Valley Land Trust, a true and
accurate copy of which is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves an amended and
restated deed of conservation easement to the Aspen Valley Land Trust, a copy of
which is annexed hereto and incorporated herein, and does hereby authorize the
Mayor to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 13
th day of April 2021.
Torre, Mayor
I, Nicole Henning, 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, April 13th, 2021.
Nicole Henning, City Clerk
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NOTICE TO TITLE COMPANY: Division of the property subject to this Easement
is prohibited in accordance with Section 7.1. This Easement further requires %0.05
(one half of one percent) of sale price be paid by the recipient to Aspen Valley Land
Trust or its successor at the time of every transfer of this Property, as described in
Section 16. This payment is exempt from the transfer fee restrictions contained within
C.R.S. 38-35-127.
FIRST AMENDED AND RESTATED
DEED OF CONSERVATION EASEMENT IN GROSS
COZY POINT RANCH
Pitkin County
THIS FIRST AMENDED AND RESTATED DEED OF CONSERVATION
EASEMENT IN GROSS (“A&R Easement”) is granted this ______ day of ___________,
2021, by the CITY OF ASPEN, a Colorado municipality (“Landowner”) to and for the
benefit of ASPEN VALLEY LAND TRUST, a Colorado nonprofit corporation having
offices at 320 Main Street, Suite 204, Carbondale, Colorado 81623 (the “Trust”)
(collectively, the “Parties”).
The following exhibits are attached hereto and incorporated by reference herein:
Exhibit A: Property Legal Description
Exhibit B: Map of Property
Exhibit C: Activity Envelopes
RECITALS
WHEREAS, Landowner donated a conservation easement in gross to the Trust by
grant of that certain Deed of Conservation Easement recorded in Pitkin County on June 30,
2003 as Reception No. 484726 (the “Original Easement”) over and across all of the fee
simple interest of approximately 168 acres of real property along Highway 82 at the
intersection of Brush Creek Road, in the County of Pitkin, State of Colorado, and legally
described as the “Original Conservation Easement” in Exhibit A (the “Property”);
WHEREAS, Landowner and the Trust intend this document to encumber the
Property and to amend and restate the Original Easement such that upon its execution and
recordation, this A&R Easement shall supersede and replace the Original Easement in its
entirety so that the Original Easement shall have no further force or effect;
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WHEREAS, the Property possesses natural (including habitat), scenic, open space
(including agriculture), conservation education, and recreational values (collectively,
“Conservation Values”) of importance to Landowner, the Trust, the people of Pitkin
County, and the people of the State of Colorado that are worthy of preservation;
WHEREAS, the Conservation Values of the Property are more particularly
described in the 2003 Baseline Documentation, described in Section 4 herein, and include
the following conservation purposes, the protection of which are recognized for qualified
conservation contributions under Section 170(h)(4)(A) of the Internal Revenue Code of
1986, as amended (“IRC”), and under Section 1.170A-14(d) of the Treasury Regulations:
Relatively Natural Habitat [Reg. § 1.170A-14(d)(3)]. The Property is generally
characterized by long, cold and moist winters, and short, cool, dry summers. The
northern portion of the Property is managed as a natural area, providing food,
shelter, breeding ground, and migration corridors for several wildlife species.In
addition, Brush Creek, a perennial tributary to the Roaring Fork River, flows across
west to east across the southern portion of the Property. Cougar Creek, a small
intermittent stream north of Brush Creek, provides riparian vegetation. The Property
serves as natural habitat for coyote, mule deer, elk, red fox, squirrels, mountain lion,
bear, and mountain cottontail rabbit, as well as many avian species.
Open Space [Reg. § 1.170A-14(d)(4)]. The Property qualifies as open space
because it will be it is pursuant to clearly delineated federal, state or local
governmental conservation policies.
o Scenic Enjoyment. The Property adds to the scenic character of the local rural
landscape in which it lies, and provides a degree of openness, contrast and
variety to the overall landscape. A large portion of the Property is visually
accessible to the general public from Highway 82, Brush Creek Road, and
Juniper Hill Road which are open and actively used by residents of Pitkin
County and the State of Colorado. The terms of the Easement do not permit a
degree of intrusion or future development that would interfere with the essential
scenic quality of the land.
o Agriculture. A portion of the Property is currently used for agricultural
purposes including irrigated crop production and livestock grazing. This use is
compatible with other land use in the vicinity.
o Governmental Policies. Conservation of the Property is promoted by the
following local, state, and federal governmental policies, including the goals
and policies of Pitkin County, and the laws and regulations of the State of
Colorado and the United States support conservation of the Property relative to
its wildlife habitat, agricultural heritage, and natural area values:
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Local Policies: In 2001 the City of Aspen created the Open Space
and Trails Board. The mission of the Open Space and Trails Board is
to continually acquire, preserve, manage and maintain open space
and trails within the community for the benefit of current and future
generations. The Board makes recommendations to City Council and
Staff on the acquisition and management of open space. The policy
of the Board is to further the purposes of the program as set out in
Section 2 of Resolution No. 108 (series 2001) as follows:
Incorporating or protecting wildlife habitat and corridors;
Preventing, protecting and enhancing encroachment on flood
plain and riparian areas; Protecting public lands from the
impacts of development; Preserving historic routes of ingress
and egress to public lands and waterways; Providing access
to and from recreational or urban destinations; Protecting
Historic open spaces and its structures.
The Pitkin County Open Space and Trails program was founded in
1990 for the purposes of: (1) Shaping development (greenbelt and
viewplanes). (2) Incorporating or protecting significant wildlife
habitat and corridors. (3) Preserving historic agricultural and
ranching activities. (4) Protecting other public lands from the
impacts of development. (5) Preserving historic routes of ingress and
egress to public lands and waterways. (6) Providing recreational
opportunities throughout Pitkin County, which are directly related to
and not inconsistent with the foregoing purposes.
This easement grant will support this policy’s objective by conserving wildlife
habitat and corridors and local agricultural lands.
Statewide Policies: The State of Colorado has recognized the importance of
private efforts toward the preservation of land by the enactment of Colorado
Revised Statutes (“C.R.S.”) §§38-30.5-101 et seq.In addition, C.R.S. §33-1-
101 provides in relevant part that “it is the policy of the State of Colorado that
wildlife and their environment are to be protected, preserved, enhanced, and
managed for the use, benefit, and enjoyment of the people of this state and its
visitors.” C.R.S. §38-30.5-102 provides for the creation of conservation
easements to maintain land “in a natural, scenic, or open condition, or for
wildlife habitat, or for agricultural, horticultural, wetlands, recreational, forest
or other use or condition consistent with the protection of open land . . .”
The State of Colorado also has provided incentive for Colorado
landowners to protect their land with conservation easements created
pursuant to C.R.S. §§38-30.5-101 et seq.and §170(h) of the IRC with the
enactment of the Conservation Easement Credit Against Income Taxes,
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C.R.S. §39-22-522, which provides a transferable tax credit for qualifying
grants of conservation easements in gross.
The Colorado Department of Agriculture, statutes, C.R.S. §§35-1-101 et
seq., provide in part that “it is the declared policy of the State of Colorado to
conserve, protect, and encourage the development and improvement of its
agricultural land for the production of food and other agricultural products.”
The Property contains significant sagebrush and riparian habitat and its
conservation is therefore promoted by the Colorado Parks and Wildlife
(“CPW”), Comprehensive Wildlife Conservation Strategy approved by the
US Fish and Wildlife Service in 2006, which lists sagebrush and West Slope
Rivers and Streams as High Priority Habitat.
Federal Policies: Federal legislation supports conservation of the Property
through the Farmlands Protection Policy Act and 2008 Farm Bill and
extensions of benefits originally provided by the 2006 Pension Protection
Act. The Farmlands Protection Policy Act, P.L. 97-98, 7 U.S.C. §§4021 et
seq., the purpose of which is “to minimize the extent to which federal
programs and policies contribute to the unnecessary and irreversible
conversion of farmland to nonagricultural uses, and to assure that federal
programs are administered in a manner that, to the extent practicable, will
be compatible with state, units of local government, and private programs
and policies to protect farmland,” supports the Property’s
protection. Section 170(b)(1)(E)(iv) of the Internal Revenue Code, as
amended by the 2006 Pension Protection Act, the benefits of which
amendment were made permanent through the passage of the Consolidated
Appropriations Act, 2016 (HR.2029) on December 18, 2015, creates a
greater tax deduction and carry forward period for landowners conserving
their properties through the use of perpetual conservation easements, with
even greater tax benefits available to agricultural landowners, provided that
the conserved property remains available for either agricultural or livestock
production, or both.
Recreation and Education [Reg. § 1.170A-14(d)(2)]. Portions of the Property
outside of the leased areas will be made available to the general public for posted
seasonal recreational use along designated trails and through educational
programing for the benefit of the public. Recreational opportunities on the Property
will also include an equestrian trail for public use accessible from nearby equestrian
facilities.
WHEREAS, Landowner conveyed to the Trust in 2003 the right to preserve and
protect the Conservation Values in perpetuity and the Trust agreed, by accepting said grant,
to honor the intentions of Landowner stated herein and to preserve and protect in
perpetuity the Conservation Values;
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WHEREAS, the Original Easement provided for “a building envelope not to
exceed ten acres”, “to preserve and restore the historic barn and cabins/homes on the
homestead site”, “use of up to 12-acres of the south pasture for a polo and/or soccer
playing field, along with standard field amenities such as parking, spectator facilities and
restrooms”, and “use of approximately 2 acres for the operations of an archery range”. This
A&R Easement will maintain the Property as one parcel and reduce the Property’s Activity
Envelope down to one 19-acre (nineteen-acre) Activity Envelope (Activity Envelope A)
and the existing 2-acre (two-acre) archery range (Activity Envelope B), as shown on
Exhibit B. The Landowner is a public entity, working in the public’s best interest,
benefitting the public through the A&R Easement’s changes to create more directed uses
and activities within specific envelopes in exchange for relinquishing the right to build a
soccer complex.
WHEREAS, Grantor intends that the Conservation Values of the Property be
preserved and maintained by the continuation of land use patterns, including, without
limitation, those relating to open space, wildlife habitat and recreational uses existing at the
time of this grant, including the equestrian center, farm including agricultural and
educational activities, and related employee housing, agricultural structures and equestrian
facilities, which the Trust acknowledges and agrees do not significantly impair or interfere
with those values; and
WHEREAS, Grantor intends, as owner of the Property, to convey to the Trust the
right to preserve and protect the Conservation Values of the Property in perpetuity; and
WHEREAS, the Trust agrees by accepting this grant to honor the intentions of
Grantor stated herein and to preserve and protect in perpetuity the Conservation Values of
the Property for the benefit of this generation and the generations to come;
WHEREAS, the Trust is a charitable organization as described in IRC §501(c)(3),
and is a publicly-supported organization as described in IRC §170(b)(1)(A) whose primary
purpose is to permanently preserve and protect the natural, scenic, agricultural, historical,
and open space resources of the greater Roaring Fork and Colorado River Valleys, and
who is a “qualified organization” to do so within the meaning of IRC §170(h)(3),
possessing the resources and commitment to protect and defend the conservation purposes
of this grant;
WHEREAS, the Trust also meets requirements of Colorado law as a qualified
recipient for a conservation easement under C.R.S. §38-30.5-104, and is certified to hold
conservation easements for which a state tax credit is claimed by the State of Colorado’s
Division of Real Estate as outlined in C.R.S. §12-61-724 and in Rule 2.1 of the Code of
Colorado Regulations, Qualifications for Certification to Hold Conservation Easements (4
CCR 725-4, Rule 2.1), for the current year. The Trust is also accredited by the Land Trust
Accreditation Commission, a national accreditation program sponsored by the Land Trust
Alliance, at this time; and
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WHEREAS, the Board of Directors of the Trust has duly authorized the Trust’s
Executive Director or her designee to execute and accept this conservation easement on
behalf of the Trust.
AGREEMENT
NOW, THEREFORE, in consideration of the matters above, the mutual
covenants, terms, conditions and restrictions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:
1. GRANT
Landowner hereby voluntarily and irrevocably grants and conveys to the Trust this
unrestricted gift of a perpetual Conservation Easement in gross (“Easement”) over and
across the Property pursuant to C.R.S. §§38-30.5-101 et seq., through the terms mutually
agreed to in this Easement, and to hold said Easement unto the Trust and its successors and
assigns forever. Landowner agrees that the donation of the Easement gives rise to a
property right, immediately vested in the Trust, which shall constitute a binding servitude
upon the Property and shall be subject to prior reservations, easements, encumbrances and
exceptions of record, except as otherwise set forth herein.
2. PURPOSES
Pursuant to the terms of C.R.S. §§38-30.5-101 et seq., the purposes of the Easement
are to assure that the Property will remain forever predominantly in its relatively natural
habitat, scenic views, agricultural open space, and recreational values subject to the uses of
the Property permitted hereunder, including ongoing agricultural use, to prevent any use of
the Property that is inconsistent with the preservation and protection of the Conservation
Values and, in the event of their degradation or destruction, to require restoration of such
Conservation Values.
The purpose of this Easement is to preserve and protect the Conservation Values of
the Property in perpetuity, listed hereafter in order of priority. The primary purpose of this
Deed is to protect the Property’s relatively natural wildlife habitat; the secondary purpose
of this Deed is to protect the Property’s agricultural and educational open space, which
provides significant public benefit; and the tertiary purpose of this Deed is to protect the
Property’s scenic views and recreational values, which provides a significant public
benefit. (This paragraph collectively defines the “Purposes”).
Should the Property’s use for the primary Purpose become impossible to achieve,
the Property shall continue to be protected for the secondary and tertiary Purposes, and
remain available for the primary Purpose. Should the Property’s use for all of the listed
Purposes become impossible, the parties shall proceed in accordance with Sections 14 and
15 below, and consistent with applicable laws, to continue to honor the original Purposes
set out for protection by this Easement.
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3. INTENT
Subject to the express reservations and prohibitions described in Section 7 below,
the Parties’ intent is to permit all uses of the Property that are consistent with the Purposes
of the Easement (defined above) as determined by the Trust in its sole discretion. Nothing
in this Easement is intended to prevent Landowner’s quiet and reasonable enjoyment of the
Property, or to compel a specific use of the Property other than the preservation and
protection of the Conservation Values.
4. BASELINE DOCUMENTATION
The Parties acknowledge that a Baseline Documentation of the Conservation
Values and relevant features of the Property was prepared on November 7, 2003 by
Newland Project Resources, Inc. a company that was familiar with conservation easement,
the Property, and the environs, and is on file with the Parties and incorporated herein by
reference (the “Baseline Documentation”). The Trust and Landowner acknowledge and
agree that by the execution of this Easement they approve, acknowledge, and accept the
Baseline Documentation as an accurate representation of the condition of the Property at
the time of the Original Easement. The Parties agree that the Baseline Documentation is
not intended to preclude the use of other evidence to establish the present condition of the
Property should a controversy arise over its use.
5. RIGHTS OF THE TRUST
To fulfill the Purposes of this Easement, Landowner hereby conveys to the Trust a
property right and interest in the form of this Easement, which immediately vests with the
Trust (as agreed in Section 1 and stipulated in Section 14.3, herein), and includes the
following affirmative rights:
5.1.All development rights deriving from the Property in any way (“Trust’s
Development Rights”), except those expressly reserved by Landowner in Section 7 of this
Easement. The Parties agree that Trust’s Development Rights shall be held by the Trust in
perpetuity in order to fulfill the Purposes of this Easement, and to ensure that such rights
are forever released and terminated as to Landowner. Such Development Rights shall not
be utilized by the Trust on or off of the Property;
5.2.The right to preserve and protect the Conservation Values in perpetuity;
5.3.The right to enter upon the Property at least annually at times agreed to
mutually by Landowner and the Trust to inspect the Property thoroughly, to monitor
Landowner’s compliance with, and otherwise enforce the terms of this Easement; provided
that such entry shall not unreasonably interfere with Landowner’s use and quiet enjoyment
of the Property, with the exception that no notice by the Trust to the Landowner prior to
entry onto the Property shall be required in the event the Trust believes that immediate
entry upon the Property is essential to prevent or mitigate a violation of the Easement;
5.4.The right, as an interest owner in the Property, to prevent or enjoin
Landowner or third parties (whether or not invitees of Landowner) from engaging in any
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activity or use of the Property that is inconsistent with the Purposes of the Easement; and
the right to require Landowner or third parties, as may be responsible, to restore such areas
or features of the Property that are damaged by any activity or use inconsistent with the
Purposes and terms of this Easement, subject to the qualifications of Section 13.5 herein;
5.5.To place and maintain on the Property a sign or signs indicating that a
conservation easement is held by the Trust on the Property. The Trust shall be responsible
for the maintenance of any such signs, and location, sign size, and general design shall be
mutually agreeable to both parties.
5.6.The right, as an interest owner in the Property, to receive notification from
and join Landowner as a party to any condemnation or eminent domain proceedings
affecting the Property (as described in Section 14), or to any leases, surface use
agreements, damage agreements or rights-of-way that may be proposed, granted or
required hereafter as a result of mineral development (as described in Section 7.3.G) or
other activities with the potential to impact the surface of the Property or its Conservation
Values; and
5.7.Any other rights that the Parties may mutually agree upon that are
consistent with the Purposes of the Easement, including adding additional purposes or
defining additional Conservation Values.
6. RIGHTS OF LANDOWNER
Landowner reserves to itself and to its personal representatives, heirs, successors,
and assigns, all rights and obligations accruing from its ownership of the Property,
including the right to engage in activities and uses of the Property not prohibited herein and
that are consistent with the Purposes of the Easement, pursuant to IRC §170(h)(4) and
C.R.S. §38-30.5-102.
7. PROHIBITED AND PERMITTED USES
The following uses and practices by Landowner, though not an exhaustive recital,
are either permitted or prohibited by this Easement. Certain uses, where indicated, require
notice to or approval from the Trust, or both, according to Sections 10 and 11. Any other
activities that are inconsistent with the Purpose of this Easement, as defined by Section 2,
or with preservation and protection of the Conservation Values, as described in more detail
in the Recitals, are prohibited. Landowner shall request the Trust’s prior approval for uses
not expressly described herein when there is a question as to their consistency with the
Purposes of this Easement.
7.1.No Division of Property. Landowner may not divide or subdivide
(including de facto subdivision) the Property into more than one parcel of land. At all times
the Property shall be owned as a single parcel subject to this Easement. Ownership of the
single parcel by joint tenancy or tenancy in common is permitted; however, actions to
partition or condominiumize the Property are prohibited.
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7.2.Buildings and Improvements. The construction, location, relocation or
expansion of any structures or improvements (defined as permanent or temporary
structures or other physical, human-introduced development of or on the Property) is
prohibited on the Property, except as follows in this Section 7.2:
A. Activity Envelopes. Landowner retains a 19-acre activity envelope
“Activity Envelope A”, and a 2-acre activity envelope for use of the archery
range, “Activity Envelope B”,legally described on Exhibit A and shown
approximately on Exhibit C, within which Landowner may engage in all non-
industrial uses then permitted by Pitkin County Regulations and all other
applicable laws (as defined in Section 21.1 and referred to hereafter as
“Applicable Laws”), including but not limited to landscaping, grading, and
construction. Together, within Activity Envelope A and Activity Envelope B,
Landowner reserves the right to:
a.Construct, locate, rebuild, remodel, relocate, maintain, or replace up to a
total of 9,000 square feet of residential structures;
b.Maintain and redevelop an equestrian center, barns, and other accessory
buildings for the operation of a horse ranch and equestrian facility;
c.Construct, locate, rebuild, remodel, relocate, maintain, or replace barns
and other accessory buildings for the operation of farming and agricultural
education;
d.Construct, locate, rebuild, remodel, relocate, maintain, or replace
archery equipment;
e.Facilities and improvements must be permitted by Pitkin County
(including but not limited to utility lines, septic systems, fences, corrals,
picnic areas, and driveways).
B. Agricultural Structures Outside of the Activity Envelopes. Landowner
retains the right to construct, replace, enlarge, relocate and maintain existing
and additional minor, off-grid structures (as defined below) for agricultural
purposes outside of the Activity Envelopes (such as hay sheds, greenhouses,
machine sheds, loafing sheds, or pump houses), provided it supports the
property’s conservation values is consistent with the Property’s Management
Plan. Minor, off-grid structures are defined as being unenclosed (i.e., possessing
three or fewer walls), not connected to utility lines, and not having excavated,
raised or slab foundations.
C. Fencing. New or replaced fencing shall be constructed in a manner that is
compatible with the movement of wildlife across the Property and is consistent
with the Property’s Management Plan. Any disturbance to the Property that
results from such fence maintenance or construction shall be reseeded within
three months, season permitting, or as otherwise approved by the Trust so as to
prevent the spread of weeds.
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Corrals, livestock holding pens and other enclosures or exclosures that do
not meet the above guidelines are permitted only within the Activity Envelopes.
Outside of the Activity Envelopes, the Landowner may erect Colorado Parks
and Wildlife approved fencing for agricultural operations. To protect the
integrity of Brush Creek and Cougar Creek’s banks, a 100-foot setback will be
required for any additional fencing. Existing fences and structures within this
setback are permitted.
D. Roads and Access Easements. Existing ranch roads on the Property, as
shown on Exhibit B, may be maintained, graded and graveled to support
agricultural use of the Property. Paving of roads, except within the Activity
Area, is prohibited, and Low-Impact two-track dirt vehicle trails may be
established and/or maintained on the Property as necessary for agriculture or
property maintenance. The construction of new roads or granting of access
easements or rights-of-way outside of the Activity Envelopes is prohibited,
except that dirt or gravel roads may be constructed as necessary to access
permitted agricultural and residential buildings and is consistent with the
Property’s Management Plan.
E. Trails. The development and use of unimproved footpaths and unimproved
single- or two-track trails (including vehicle trails, not to be considered “roads”
for the purpose of this Easement) are permitted in a low-impact manner and
location that minimizes erosion and disturbance to the Property’s wildlife and
scenic values for non-motorized recreation, property management and
agricultural purposes that avoid riparian areas and is consistent with the
Property’s Management Plan. Recreational courses or tracks for motorized
vehicles are prohibited. The term “unimproved” for this purpose means not
graded, cut, graveled or filled (except in isolated areas as necessary for trail
maintenance), or surfaced with impermeable materials. In some cases,
improved trails, meaning graded, cut, graveled, or filled, may be permitted with
prior approval of the Trust.
F. Recreational Structures and Improvements Outside of the Activity
Envelopes. Temporary and low-impact (defined in Section 21.1 herein)
recreational structures, such as tents, picnic tables, benches, fire pits, and
equestrian obstacles, are permitted in a location and manner not damaging to
the Conservation Values or riparian areas and is consistent with the Property’s
Management Plan. Permanent, roofed, or high-impact (defined in Section 21.1)
structures or improvements, such as gazebos, covered or open riding arenas,
and hard-surfaced trails requiring land contouring are prohibited outside of the
Activity Envelopes.
G. Ponds and Agricultural Water Sources. The installation, maintenance and
improvement of water catchments for agricultural purposes or the enhancement
of wildlife habitat, such as stock ponds (as defined in Section 21.1), wildlife
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guzzlers (which collect rain, snow and runoff to provide a water source for ag
production or wildlife), wetlands, low-impact water storage tanks and other
agricultural or wildlife-friendly water features, each under one acre in size, are
permitted in a manner consistent with the Purposes of this A&R Easement and
all Applicable Laws. Construction of reservoirs, ponds or water features for
residential or other purposes is restricted to the Activity Envelopes. Soil, sand,
rock and gravel produced during the excavation or construction of permitted
ponds or other water features may be used or relocated on the Property in a
manner consistent with the Purposes of this A&R Easement.
H. Leach Fields. The installation, maintenance, and improvement of leach
fields is permitted on the Property in a manner consistent with the Purposes of
this A&R Conservation Easement and all Applicable Laws. Any disturbance to
the Property that results from such leach field maintenance or construction shall
be reseeded within three months, season permitting, to prevent the spread of
weeds.
I. Utilities, Irrigation, and Other Technology. The installation of, or granting
of, easements and rights-of-way for utilities, utility lines, and other
technological infrastructure requires prior approval from the Trust, except
within the Activity Envelopes and as permitted by easements or rights-of-way
existing prior to the grant of this A&R Easement, and as follows:
a. Utility Lines.Above- and below-ground utility lines may be located
within existing pasture areas and along permitted roads or road rights-of-
way as necessary to service the Activity Envelopes;
b. Water Wells. Water wells, pumps, and low-impact (defined in Section
21.1) water storage tanks, and maintenance and repair thereof, are permitted
as necessary for permitted residential, agricultural and wildlife uses of the
Property in accordance with all Applicable Laws and Section 8.3.I, Water
Rights, provided that wells and water lines for domestic use shall be located
within the Activity Envelopes if practically possible;
c.Irrigation Structures. Maintenance, repair, improvement and
restoration of existing irrigation infrastructure (such as ditches, laterals,
pipelines, sprinklers, headgates, pumps and pumphouses) is permitted in
compliance with all Applicable Laws. Installation, maintenance, and repair
of ditches or irrigation infrastructure in new locations for the purpose of
maintaining or enhancing wildlife habitat or agricultural use of the Property
is permitted only upon approval of the Trust, in support of the Purposes of
this A&R Easement, and in accordance with all said laws and restrictions,
unless permitted by previously existing agreements;
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d. Renewable Energy Technology. Low-impact, renewable energy-
generating or storing structures (terms defined in Section 21.1 herein) are
permitted as necessary to facilitate the Purposes of this A&R Easement,
such as roof-mounted solar panels, solar- or wind-powered pumps or solar-
powered electric fences. Commercial production of energy or the
connection of renewable energy-generating structures to the power grid
requires the Trust’s prior approval except within the Activity Envelopes.
Landowner shall promptly reseed and restore any surface impacts that result from the
installation or maintenance of any above-described improvements to as close to the
Property’s original condition as possible within three months, season permitting, or as
otherwise approved by the Trust.
7.3.Natural Resource Management Land Use. Landowner recognizes the
importance of good resource management and stewardship to preserve and protect the
Conservation Values. Accordingly, Landowner agrees not to alter the topography of the
Property outside of the Activity Envelopes through placement or removal of soil, gravel,
land fill, or other materials nor to impair or disturb the relatively natural habitat for native
plants, wildlife, or ecosystems on the Property, except: (a) as necessary in emergencies
including wildfire, flood and landslide; (b) as approved any required permitting agencies
for habitat enhancement or restoration purposes; (c) is consistent with the Property’s
Management Plan; (d) as necessary for improvements described in Section 7.2 above; and
(e) as necessary for uses described in this Section 7.3, below. No surface alterations may
be made that damage the Conservation Values, including the Property’s use for agriculture.
A. Agriculture. Landowner retains the right to conduct agricultural operations
on the Property, and to lease lands with appurtenant Water Rights for
agriculture, in a manner consistent with sound farming and range management
practices so as not to cause significant soil erosion or low soil quality as then-
determined by the Natural Resources Conservation Service or its successor
organization (“NRCS”). Permitted agricultural operations include grazing and
raising of horses and livestock, maintenance of pasturelands, cultivation and
raising of crops of all kinds (including, without limitation, crops for food, fiber,
biofuel production or carbon sequestration, such as trees, cellulose crops, switch
grass and oil seeds) and all other agricultural activities not inconsistent with
protection of the long-term ecological viability of the land. It is the intention of
this A&R Easement that the Property remain viable for agricultural production
in the future.
The following agricultural practices are considered inconsistent with the
Purposes of this A&R Easement, and are therefore prohibited on the Property:
(1) intensive growth livestock farms, Concentrated Animal Feeding Operations
(referred to as “CAFO’s” by the Environmental Protection Agency), or
commercial feed lots, (defined as confined areas or facilities for animals, within
which the Property is not vegetated or is not grazed or cropped annually, for
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purposes of extended feeding and finishing of large numbers of livestock for
commercial hire); (2) meat or poultry processing facilities except in a manner
consistent with the terms and Purposes of this A&R Easement and approved by
the Property’s adopted Management Plan; (3) sawmills or logging operations or
facilities; (4) commercial tree farms, sod farms, nurseries, located outside of the
Activity Envelopes.
If agricultural operations on the Property cease in the future, Landowner agrees
to reseed heavily disturbed areas and take other measures necessary to establish
native or drought-tolerant, non-invasive ground cover to prevent the spread of
noxious weeds consistent with the Property’s Management Plan.
B. Forest and Vegetation Management. Selective cutting, thinning (see
definitions in Section 21.1) and burning of native vegetation on the Property is
permitted on a limited and localized basis (meaning limited in scope, scale and
impact) to control fire danger, insects, and disease; to prevent personal injury
and property damage; for personal firewood collection and construction of
permitted structures; or to otherwise maintain the health of the wildlife habitat
or ecosystem. The Trust may require that any activities performed on a large-
scale basis with the potential to temporarily damage the Conservation Values
follow the Property’s management plan. Landowner may allow wildfires to
burn on the Property and conduct controlled burns as appropriate to maintaining
long-term ecosystem health.
C. Weed Control. Landowner agrees to control noxious weeds and invasive
plant species on the Property in accordance with the Colorado Noxious Weed
Act (January 23, 2006), as amended, and other Applicable Laws, and shall not
intentionally introduce noxious weeds or invasive species to the Property.
D. Off-Road Use of Vehicles. Off-road use of motor vehicles is permitted only
as necessary for property maintenance, agriculture, and range management, in a
manner that does not result in rutting, erosion, harassment of wildlife, or
damage to the natural ecosystems or scenic values of the Property and in
emergency situations. Motorized vehicles shall not be parked or stored on the
Property outside of the Activity Envelopes.
E. Hunting and Fishing. Hunting, fishing and the leasing of hunting rights on
the Property may be permitted or prohibited at Landowner’s discretion and in
accordance with all CPW regulations and other Applicable Laws.
F. Trash and Dumping. Landowner shall not dump or permanently accumulate
trash, garbage, or other refuse on the Property, except for agricultural by-
products and compostable matter produced or used on the Property.
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G. Mining and Minerals.Mining, quarrying, drilling, boring, or exploring for
or removing oil, gas, minerals, rocks, stones, gravel or earth (collectively
hereafter “minerals”) on or below the Property is prohibited, except by third
party mineral rights holders having the pre-existing right to this grant of A&R
Easement to explore for, extract or develop minerals associated with the
Property. Landowner shall not sell, lease, transfer or separate from the Property
any mineral rights owned or controlled by Landowner as of the date of this
A&R Easement grant, but should a third party mineral rights holder require
surface or sub-surface access to minerals on or below the Property, Landowner
agrees to notify the Trust and include Trust as a party to any negotiations
regarding mineral leases, surface use agreements, damage agreements, or other
related mineral agreements (collectively hereafter “Mineral Agreements”) that
may affect the surface of the Property or its Conservation Values (including
ground and surface water resources) for the purpose of protecting and
preserving to the extent possible, and if necessary, restoring and remediating,
the Conservation Values. The Trust shall claim no rights to proceeds or
royalties from any permitted mineral development and Landowner shall retain
sole execution authority for all permitted Mineral Agreements, provided the
Trust has been properly notified and provided the opportunity to participate in
negotiations for such Mineral Agreements.
a. Future Non-Surface Mineral Development. In accordance with Section
5.6, Landowner shall notify and obtain the consent of the Trust prior to
engaging in or entering into any permitted non-surface occupancy mineral
development, units, pools, leases, or agreements affecting the Property or
underlying minerals, which documents, leases, and agreements (the
“Mineral Agreement” or “Mineral Agreements”) shall be subordinate to this
A&R Easement, shall reference this A&R Easement, and shall incorporate
the restrictions of Section 7.3.G, and summarize the restrictions of this
paragraph. The Trust shall claim no rights to proceeds or royalties from any
permitted mineral development, except that the Trust shall have the right to
charge a fee to cover its time and expenses for reviewing any proposed
Mineral Agreement. Landowner retains sole execution authority for all
permitted Mineral Agreements, excluding surface use agreements, for
which the Trust retains the right to execute together with Landowner,
provided the Trust has been properly notified and has had the opportunity to
review the Mineral Agreement as required herein.
b. Current Mineral Leases and Development. There are no active oil and
gas or other mineral leases or agreements on or affecting the Property at this
time.
H. Water Resources. Landowner shall not divert, dam, pollute, drain, dredge,
alter, or intentionally destabilize or degrade natural banks, shorelines or riparian
areas of, Brush Creek, Cougar Creek, or other naturally-occurring streams,
35
springs, ponds or other surface or subsurface water features (whether seasonal,
intermittent or perennial) that may occur on the Property now or in the future
without approval of the Trust and in compliance with the Property’s adopted
Management Plan all Applicable Laws. Landowner shall observe a 100 foot
setback from the banks of Brush Creek and Cougar Creek to protect against
degradation of the creeks and their banks. Permitted activities on the Property
that may produce silt, contaminated runoff, or erosion, within this setback must
get prior approval of the Trust, as described in Section 7.3.B. Existing fences
and structures within this setback are permitted.
I. Water Rights. There are no water rights included in or encumbered by this
Easement.
J. Commercial and Industrial Activities. Landowner shall not conduct
commercial or industrial activity on the Property, except in a manner consistent
with the terms and Purposes of this A&R Easement and the adopted
Management Plan.
K. Recreation. Low-Impact, as defined below in Section 21.1(D), non-
motorized recreational uses such as hiking, horseback riding, mountain biking,
cross-country skiing, hunting, fishing are permitted on the Property in a manner
with little to no impact to or on protected Conservation Values, consistent with
the terms and Purposes of this A&R Easement. Motorized recreational use is
prohibited except as incidental to permitted hunting activities, and except for
occasional, private, non-commercial use that does not result in rutting, erosion,
harassment of wildlife, or other damage to the Conservation Values.
Recreational tracks or courses for dirt bikes or motorcycles are prohibited.
Public or commercial firearm shooting ranges are also prohibited.
Nothing permitted by this A&R Easement or approved by the Trust in accordance
with this A&R Easement constitutes approval by any government or regulatory agency for
construction, development or land use; nor does any permit or approval granted by a
government or regulatory agency override the terms of this A&R Easement. Landowner
retains responsibility for obtaining and complying with all necessary permits and
Applicable Laws before engaging in uses or activities permitted under this A&R Easement.
8. PUBLIC ACCESS
Landowner shall ensure that any public access is consistent with Colorado’s
recreational use statute C.R.S. § 33-41-101 et seq. and provides indemnity to the Trust for
the public’s access to and use of the Property.
9. REPRESENTATIONS AND WARRANTIES
Landowner represents and warrants that, after reasonable investigation and to the
best of its knowledge:
36
9.1.Except for fuels customarily used or transported in connection with
agricultural and construction activities; no substance defined, listed, or otherwise classified
pursuant to any federal, state, or local law or regulation as hazardous, toxic, polluting, or
otherwise or threatening to human health or the environment exists or has been used or
released on the Property;
9.2.There are not now any underground storage tanks located on the Property,
and no underground storage tanks have been removed from the Property in a manner not in
compliance with Applicable Laws;
9.3.Landowner and the Property are in compliance with all federal, state, and
local laws and regulations applicable to the Property and there is no existing, pending or
threatened litigation affecting or relating to the Property;
9.4.Landowner has good and sufficient title to the Property and has lawful
authority to grant and convey the A&R Easement, that any mortgages or liens on the
Property are subordinate to the terms of this A&R Easement, and that Landowner shall
warrant and forever defend the title to the A&R Easement against all and every person or
persons lawfully claiming by, through or under Landowner, the whole or any part thereof,
except for rights-of-way, easements, restrictions, covenants and mineral reservations of
record.
10. NOTICE OF INTENTION TO UNDERTAKE CERTAIN PERMITTED ACTIONS;
REQUESTS FOR APPROVAL
The purpose of requiring Landowner to notify the Trust before undertaking certain
activities and uses of the Property, as identified in Section 7 or elsewhere in this A&R
Easement, is to afford the Trust an opportunity to update its records and, if approval is
required, to ensure that the activities in question are consistent with the terms and Purposes
of this A&R Easement. Landowner shall notify Trust and seek its approval, according to
Section 11 below, for proposed activities or uses not described herein when there is a
question as to consistency with the terms or Purposes of the A&R Easement or protection
of the Conservation Values. Whenever notice and the Trust’s approval are required,
Landowner shall notify the Trust in writing not less than 60 days prior to the date
Landowner intends to undertake the activity in question, and describe the nature, scope,
design, location, timetable, and any other material aspect of the proposed activity in
sufficient detail to permit the Trust to make an informed judgment as to the activity’s
consistency with the terms and Purposes of this A&R Easement. Whenever notice is
required, but not Trust’s approval, Landowner shall notify the Trust in writing not less than
30 days in advance of the proposed activity, unless this A&R Easement provides
otherwise.
11. THE TRUST’S APPROVAL
Whenever this A&R Easement requires that Landowner obtain the Trust’s approval
for any activity or use of the Property, or if Landowner desires approval for any activity or
use not clearly consistent with the terms or Purposes of the A&R Easement, such approval
37
shall be given in the Trust’s sole discretion, according to whether the Trust determines that
such activity will not damage the Conservation Values, which burden of proof lies with the
Landowner. The Trust’s approval may be withheld in its sole discretion if the Trust
determines that the proposed activity would damage the Conservation Values or be
otherwise inconsistent with the terms and Purposes of this A&R Easement. The Trust shall
set forth its determination, and the reason(s) for the determination, in writing to Landowner
within 30 days of receipt of Landowner’s written notice and request for approval (as
described in Section 10, above). In the event the Trust should withhold its approval, it may
also specify to Landowner any modifications to the request that might render the request
consistent with the terms and Purposes of the A&R Easement.
12. TRUST’S REMEDIES:ENFORCEMENT
The Trust shall have the right to prevent and correct, or require correction of,
violations of this A&R Easement. The Trust is not responsible for monitoring for or
enforcing violations of any Applicable Laws, permits, or third party contracts affecting the
Property now or in the future, except to the degree that any violations of Applicable Laws
also violate this A&R Easement, damage the Conservation Values, or be otherwise
inconsistent with the Purposes or terms of this A&R Easement.
If the Trust finds what it believes is a violation, or a threat of a violation of this
A&R Easement, the Trust shall notify Landowner of the nature of the alleged violation.
Upon receipt of this notice, Landowner shall immediately discontinue any of its activity or
assist to discontinue any third party’s activity that could increase or expand the alleged
violation and shall either: (a) restore the Property within 60 days as is best possible to its
condition prior to the violation, or if immediate restoration is not possible, Landowner shall
submit a restoration plan to the Trust within 60 days; or (b) provide a written explanation
to the Trust of the reason why the alleged violation should be permitted. If the Trust is not
satisfied with Landowner’s written explanation or restoration actions, the Parties agree to
meet as soon as possible to resolve their difference. If a resolution cannot be achieved at
the meeting, the Parties agree to attempt to resolve the dispute pursuant to Section 12.1,
below.
At any time, including if Landowner does not immediately discontinue any activity
that could increase or expand the alleged violation, or if the Trust believes an ongoing,
imminent, or threatened activity violates the A&R Easement, the Trust may take
immediate legal action to stop the activity without prior notice to Landowner, without
waiting for the period provided for cure to expire, and without waiting for the 60-day
mediation period to expire. The Trust may bring an action at law or in equity, ex parte as
necessary, in a court of jurisdiction to enforce the terms of this A&R Easement and to
enjoin a violation by temporary or permanent injunction, which may require restoration of
the Property to the condition that existed prior to the violation. The Trust's remedies
described here shall be in addition to all remedies now or hereafter existing at law or in
equity, and shall include, without limitation, the right to recover damages for violation of
the terms of this A&R Easement or injury to the Conservation Values, including damages
for the loss of scenic, aesthetic, or environmental values, and the right to other remedies
38
designed to deter bad acts, including restitution of tax benefits or payments for the A&R
Easement, disgorgement of profits, and liquidated and punitive damages. The Trust, may
apply any damages recovered to the cost of undertaking restorative, remedial or corrective
action on the Property without limiting Landowner’s liability for such damages or
corrective action.
Enforcement of the terms of this A&R Easement shall be at the sole discretion of
the Trust, and any forbearance by the Trust to exercise its rights under this A&R Easement
shall not be construed to be a waiver by the Trust of its rights, or of any term(s) of the
A&R Easement, including any subsequent breach of the same or other term(s) of this A&R
Easement. No delay or omission by the Trust in the exercise of any right or remedy shall
impair such right or remedy or be construed as a waiver. The failure of the Trust to
discover a violation or to take immediate legal action shall not bar the Trust from doing so
at any time after the date upon which the violation is discovered.
All reasonable costs incurred by the Trust in enforcing the terms of this A&R
Easement by legal or other means, including but not limited to expert fees, staff time, legal
fees, and costs of pursuing legal or other action, and costs of restoration necessitated by
Landowner’s violation of the terms of this A&R Easement, shall be borne by Landowner,
unless Landowner ultimately prevails in a judicial enforcement action, in which cases each
Party shall bear its own costs, unless the Trust is found by a final court of competent
jurisdiction to have acted in bad faith. If Trust prevails in part, then Landowner shall be
responsible for all fees and costs of both parties as set forth above. If the Parties agree to
mediation, the Parties will equally share the cost of the mediator’s fees.
12.1.Mediation. If a dispute arises between the Parties concerning the
consistency of any proposed activity with the terms of this A&R Easement, and
Landowner agrees not to proceed with the activity pending resolution of the dispute, either
Party may refer the dispute to mediation by written request to the other. Within 10 days of
the receipt of such request, the Parties shall select a trained and impartial mediator,
preferably with experience in real property law and land conservation. If the Parties are
unable to agree on a mediator, or no such experienced mediator is available, then the
Parties shall each select a qualified mediator and those two mediators shall select a
mediator who shall alone mediate the dispute. Mediation shall then proceed in accordance
with the following guidelines:
A. Purpose. The purpose of the mediation is to: (a) promote discussion
between the Parties; (b) help the Parties develop and exchange information
concerning the issues in dispute; and (c) help the Parties develop proposals that
will enable them to arrive at a mutually acceptable resolution. The mediation is
not intended to result in or be interpreted as resulting in any modification or
amendment of the terms, conditions, or restrictions of this A&R Easement;
39
B. Participation. The mediator may meet with the Parties and their counsel
jointly or ex parte. The Parties agree that they will participate in the mediation
process in good faith and expeditiously, except in cases where the Trust
believes that there is ongoing damage to Conservation Values, in which case the
Trust can suspend its involvement in the mediation to remedy this threat of
ongoing violation. Representatives of the Parties with settlement authority will
attend mediation sessions as required by the mediator;
C. Confidentiality. All information presented to the mediator shall be
confidential and may be disclosed by the mediator only with the consent of the
Parties or their respective counsel. The mediator shall not be subject to
subpoena by any Party in any subsequent litigation;
D. Time Period and Fees. Neither Party shall be obligated to continue the
mediation process beyond a period of 60 days from the date of the initial
meeting with the mediator, nor if the mediator concludes that there is no
reasonable likelihood that continuing mediation will result in a mutually
agreeable resolution. The Parties shall each bear 50% of the mediator’s fees.
13. COSTS,LIABILITIES,TAXES,AND ENVIRONMENTAL COMPLIANCE
13.1.Costs, Legal Requirements and Liabilities. Landowner retains all
responsibilities and obligations and shall bear all costs and liabilities related to the
ownership, operation, and maintenance of the Property, including the payment of property
and other taxes related to the Property, and maintenance of liability insurance coverage.
Landowner shall make best efforts to keep the Property free of any liens arising out of any
work performed for, materials furnished to, or obligations incurred by Landowner. Nothing
in this A&R Easement shall be interpreted as prohibiting Landowner from obtaining loans
secured by deeds of trust encumbering the Property, provided any such deeds of trust are
subordinate to this A&R Easement;
13.2.Control.Nothing in this A&R Easement shall be construed as giving rise,
in the absence of a judicial decree, to any right or ability of the Trust to exercise physical
or managerial control over the day-to-day operations of the Property, or over any of
Landowner’s activities on the Property, or otherwise to become an operator with respect to
the Property within the meaning of The Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (“CERCLA”), and any Colorado
state law counterpart;
13.3.Hold Harmless. Landowner shall hold harmless, indemnify and defend the
Trust and its members, directors, officers, employees, agents, and contractors and the heirs,
personal representatives, successors, and assigns of each of them (collectively, the “Trust
Parties”) from and against all liabilities, including, without limitation, court awarded third-
party attorneys’ fees, arising from or in any way connected with: (a) the injury to or the
death of any person, or damage to property, occurring on or about or related to the
Property, unless and to the extent such injury, death, or damage was caused by the willful
40
and wanton act (as defined by C.R.S. §13-21-102(1)(b)) or omission of any of the Trust
Parties; (b) the violation or alleged violation of, or other failure to comply with, any state,
federal, or local law, regulation, or requirement, including, without limitation, CERCLA,
by any person other than any of the Trust Parties, in any way affecting, involving, or
relating to the Property; (c) the presence or release of hazardous or toxic substances in, on,
from, or under the Property at any time, of any substance now or hereafter defined, listed,
or otherwise classified pursuant to any federal, state, or local law, regulation, or
requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or
soil, or in any way harmful or threatening to human health or the environment, unless and
to the extent caused by any of the Trust Parties; (d) payment of taxes imposed upon or
incurred by the Property as a result of this A&R Easement, including property taxes and
the sale of income tax credits acquired as a result of this A&R Easement; (e) tax benefits or
consequences of any kind which result or do not result from entering into this A&R
Easement; and (f) the obligations, covenants, representations, and warranties described
herein;
13.4.Waiver of Certain Defenses. Landowner hereby waives the defenses of
laches, estoppel and prescription. Landowner waives any defenses or rights available to
Landowner pursuant to C.R.S. §38-41-119 and agrees that the one-year statute of limitation
provided by C.R.S. §38-41-119 does not apply to this A&R Easement;
13.5.Acts Beyond Landowner’s Control. Nothing contained in this A&R
Easement shall be construed to entitle the Trust to bring any action against Landowner for
any injury to or change in the Property resulting from causes beyond Landowner’s control
or from any prudent action taken by Landowner under emergency conditions to prevent,
abate, or mitigate significant injury to the Property. Landowner is not responsible for acts
of third parties not authorized to access the Property, but shall be responsible for all third
parties, including guests or invitees, authorized by Landowner to access the Property. The
Trust retains the right to enforce the terms of this A&R Easement against third parties or
Landowner or both for violations of the A&R Easement or damage to the Property.
14. EXTINGUISHMENT AND CONDEMNATION
14.1.Extinguishment. The Parties agree that any changes in the economic
viability of the uses permitted or prohibited by this A&R Easement, or changes to
neighboring land and its use shall not be deemed circumstances or conditions justifying the
termination or extinguishment of the A&R Easement. In addition, the inability of
Landowner, or Landowner’s heirs, successors or assigns, to implement any or all of the
uses permitted under this A&R Easement shall not impair the validity of the A&R
Easement, or be considered grounds for termination or extinguishment of this A&R
Easement. Further, this A&R Easement cannot be abandoned, released, terminated,
extinguished, or affected by adverse possession.
If circumstances arise in the future that render the Purposes of this A&R Easement
impossible to accomplish, the A&R Easement can only be terminated or extinguished, in
whole or in part, by judicial proceedings after a court of competent jurisdiction has found
41
that the Purposes of this A&R Easement are impossible to accomplish and has explored all
options for importing other Purposes for the A&R Easement. Each Party shall promptly
notify the other when it first learns of such circumstances. The amount of the proceeds to
which the Trust shall be entitled from any sale, exchange, or involuntary conversion of all
or any portion of the Property subsequent to such termination, shall be determined, unless
otherwise provided by Colorado law at the time, in accordance with the Proceeds
paragraph below, and such proceeds shall be used by the Trust in a manner consistent with
the conservation Purposes of the Original Easement contribution, as required by §1.170A-
14(g)(6)(i) of Treasury Regulations;
14.2.Condemnation. If all or any part of the Property is taken by condemnation,
or by purchase in lieu of condemnation by any public, corporate, or other authority so as to
terminate the A&R Easement in whole or in part, Landowner and the Trust shall act jointly
to recover the full value of the interests in the Property subject to the taking or in-lieu
purchase, and all damages resulting there from. All expenses reasonably incurred by
Landowner and the Trust in connection with the taking or in-lieu purchase shall be paid out
of the amount recovered. The Trust’s share of the balance of the amount recovered shall be
determined by multiplying that balance by the percentage set forth in Proceeds paragraph
below;
14.3.Proceeds.Landowner and the Trust stipulate that as of the date of this A&R
Easement, they are each vested with a real property interest in the Property. The Parties
further stipulate that the Trust’s interest in the A&R Easement has a value that shall be
determined by a qualified conservation easement real estate appraisal at the time of
extinguishment, condemnation, or any other event terminating part or all of the A&R
Easement on the property, should any such event occur in the future. This value shall be
represented as a percentage of the fair market value of the Property that is at least equal to
the proportionate value that the A&R Easement bears to the value of the Property as a
whole at the time of the A&R Easement's grant, which percentage shall remain constant in
relation to any future fair market value of the Property. Such percentage shall be used only
for determining the Trust’s proportion of proceeds from any payment of damages or action
resulting from circumstances described in the Extinguishment and Condemnation
paragraphs above, and including other events of partial or complete termination of the
A&R Easement. The Parties agree that the value of any improvements to the Property
made by Landowner after the date of this A&R Easement is reserved to Landowner.
15. ASSIGNMENT OF EASEMENT
In the event the Trust is no longer able to carry out its duties and obligations under
this A&R Easement, or if circumstances change so that another similar organization is
better able to carry out such duties and obligations, the Trust may, upon prior notice to
Landowner, elect to transfer the A&R Easement and assign its rights and obligations under
this A&R Easement to a qualified land conservation organization or government entity that
is, at the time of transfer: (a) willing and able to accept the transfer; (b) a qualified
organization under IRC §170(h) (or any successor provision then applicable), and its
applicable Treasury Regulations; (c) authorized to hold conservation easements under
42
Colorado law; and (d) charged with a mission similar to that of the Trust. As a condition of
such transfer, the Trust shall require the transferee to expressly agree, in writing, to uphold
the Purposes of the A&R Easement and otherwise assume all of the obligations and
liabilities of the Trust set forth in this A&R Easement. After such transfer, the Trust shall
have no further obligation or liability under this A&R Easement. Should the Trust be
unable to assign the A&R Easement according to this procedure, a court with competent
jurisdiction shall assign the A&R Easement.
16. SUBSEQUENT TRANSFERS OF PROPERTY
Landowner agrees to notify any party who may purchase, lease, or otherwise hold
interest in this Property of the terms of this A&R Easement, and to provide a copy of the
A&R Easement and the Baseline Documentation to such party if requested. The
conveyance document shall expressly refer to this A&R Easement and acknowledge that
all subsequent owners are subject to its terms. The Trust shall be available to meet with any
prospective recipient of the Property to explain the terms of this A&R Easement, either
before or after closing, and to answer any questions related to this A&R Easement or its
supporting documentation.
In addition, at any time Landowner transfers the Property to a third party,
including all subsequent transfers, that party shall pay %0.05 (one half of one percent) of
sale price to the Trust to cover administrative costs associated with the transfer, as well as
to put the third party recipient on notice of the existence of this A&R Easement. This
payment is exempt from transfer fee restrictions of C.R.S. §38-35-127 because the
payment shall be used by the Trust only to benefit the Property, any adjacent or contiguous
real property, or the community in which the Property is located to support preservation of
open space, recreational, environmental, conservation, or similar activities.
17. NOTICES
Any communication that either Party is required to give to the other under the terms
of this A&R Easement shall be in writing and physically delivered or sent by first class
mail, postage prepaid, to the following addresses, or to such other address as either Party
may designate in the future by written notice to the other. Other communications not
required by this A&R Easement may be in the form of email or other electronic
communication:
To Landowner:
The City of Aspen
130 South Galena
Aspen, CO 81611
970-920-5120
To the Trust:
Aspen Valley Land Trust
320 Main Street, Suite 204
Carbondale, CO 81623
970-963-8440
43
18. RECORDATION
The Trust shall record this A&R Easement in the official records of Pitkin County,
Colorado and may re-record it at any time as may be required to preserve its rights in this
A&R Easement.
19. AMENDMENT
If circumstances arise under which an amendment to this A&R Easement would be
appropriate to promote the Purposes of the A&R Easement, Landowner and the Trust may
jointly amend this A&R Easement. However, the Trust is under no obligation to amend
this A&R Easement, and may decline any amendment in its sole discretion. Any
amendment shall be consistent with the Purposes of the A&R Easement, and may not
affect the A&R Easement’s perpetual duration. Any amendment shall be in writing, signed
by all the Parties, and recorded in the records of the Clerk and Recorder of the appropriate
Colorado County. Corrections to correct factual mistakes or typographical or clerical errors
may be made at the discretion of the Trust. No amendment shall be allowed that affects the
qualification of this A&R Easement or the status of the Trust under any Applicable Laws,
including C.R.S. §§38-30.5-101 et seq., or IRC §170(h), or § 501(c)(3), or any regulations
promulgated thereunder. No amendment shall be permitted that will confer impermissible
private benefit to Landowner or to any other individual or entity (see Treas. Reg. 1.170A-
14(h)(3)(i)), or that will result in private inurement to a Board member, staff or contract
employee of the Trust (see Treas. Reg. 1.501(c)(3)-1(c)(2)). Amendments may be subject
to a fee set by the Trust according to Trust policies to cover its staff time, legal and other
costs.
20. SUBORDINATION
The Property is not subject to any mortgages or liens.
21. GENERAL PROVISIONS
21.1.Definitions. For the purposes of this Easement, the following words and
phrases are defined as follows:
A. Landowner and Trust. The terms "Landowner" and "the Trust," and any
pronouns used in place of those terms, refer to, respectively, the original
landowner and all other landowners who succeed the original landowner,
including but not limited to Landowner and Landowner’s heirs, personal
representatives, executors, administrators, successors and assigns, and the Trust
and its successors and assigns;
B. Easement. The terms “Easement”, “A&R Easement”, “conservation
easement”, “Deed of Conservation Easement”, and “Deed of Conservation
Easement in gross” refer to this legal document and to the immediately vested
interest in real property defined by Colorado Revised Statutes §§38-30.5-101 et
seq.;
44
C. Applicable Laws. The term “Applicable Laws” refers to all relevant federal,
state, and local statutes, ordinances, judicial decisions, executive orders, codes
or regulations having the force and effect of law that have bearing on or may
control certain uses allowed by the A&R Easement;
D. Low-Impact. The term “Low-Impact” refers to activities or improvements
whose location, use and construction have negligible or no surface impact on
the Property and do not damage the Conservation Values (meaning,they have
no scenic impact from public rights-of-way; do not result in harassment of
wildlife, increased erosion or compaction of soils; earthmoving or re-contouring
of land; construction of roads or installation of utility lines; nor damage to
relatively natural habitat including wetlands, riparian areas or other water
resources);
E. High-Impact. The term “high-impact” refers to any activities or
improvements whose location, use and construction may impact more than 10%
of the Property, or which may impair the Conservation Values through scenic
impact from public rights-of-way, harassment of wildlife, earthmoving, re-
contouring of land, construction of roads or installation of utility lines,
increased erosion or compaction of soils, or damage to relatively natural
habitat;
F. Off-Grid. The term “off-grid” refers to structures or improvements that are
not connected to the local or national power grid, nor to utility transmission
lines, unless such lines are contained within the Activity Envelopes. Instead,
power or water may be provided to such structures by attached, built-in, or
other energy sources or wells located within the Activity Envelopes.
G. Renewable Energy Resource. The Term “renewable energy resource” refers
to an energy source that is replaced rapidly by natural processes, such as
biomass, hydro, geothermal, solar or wind.
H. Renewable Energy Generating Structures. The term “renewable energy
generating structures” refers to structures used to collect renewable energy
resources that are replaced rapidly by natural processes, such as biomass, hydro,
geothermal, solar or wind.
I. Forestry Terms. The term “selective cutting” refers to cutting that removes
only a portion of trees in a stand, and “thinning” refers to a treatment made to
reduce stand density of trees primarily to improve growth, enhance forest
health, or recover potential mortality.
J. Stock Ponds. Stock ponds, also known as livestock water tanks," are defined
in C.R.S. § 35-49-103 and for the purpose of this A&R Easement as including
“all reservoirs created by dams constructed after April 17, 1941, on
45
watercourses, the channels of which are normally dry as determined by the state
engineer, having a capacity not exceeding ten acre feet and a vertical height not
exceeding fifteen feet from the bottom of the channel to the bottom of the
spillway to be used for stock watering purposes.”
21.2.Controlling Law. The interpretation and performance of this A&R
Easement shall be governed by the laws of the State of Colorado;
21.3.Liberal Construction. This A&R Easement shall be liberally construed in
favor of the grant to effect the Purposes of the A&R Easement and the policy and purpose
of C.R.S. §38-30.5-101 et seq.If any provision in this instrument is found to be
ambiguous, an interpretation consistent with ensuring continuation of the Purposes of the
A&R Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid. The common law rules of construction and of
disfavoring restrictions on the use of real property and construing restrictions in favor of
the free and unrestricted use of real property shall not apply to interpretations of this A&R
Easement or to disputes between the Parties concerning the meaning of particular
provisions of this A&R Easement;
21.4.Severability. If any provision or application of any provision of this A&R
Easement, is found to be invalid, the remainder of the provisions shall be deemed severable
and remain in full force and effect;
21.5.Entire Agreement. This instrument sets forth the entire agreement between
the Parties with respect to the A&R Easement and supersedes all prior discussions,
negotiations, understandings, or agreements relating to the A&R Easement. This A&R
Easement amends and restates the prior Original Easement in its entirety such that all of
the terms and conditions of this document shall apply to the A&R Easement covering the
Original Easement in its entirety, which Original Easement will have no further force or
effect;
21.6.No Forfeiture. Nothing contained in this A&R Easement will result in a
forfeiture or reversion of Landowner’s title in any respect;
21.7.Joint and Several Obligation. The obligations imposed by this A&R
Easement upon Landowner shall be joint and several. If the Property’s ownership, now or
in the future, is by a single entity consisting of multiple parties including shareholders,
partners, or members, that entity is required to notify its shareholders, partners, or members
of the entity’s and its parties’ individual rights and responsibilities, including monetary or
other obligations set forth in this A&R Easement;
21.8.Successors. The covenants, terms, conditions, and, restrictions of this A&R
Easement shall be binding upon, and inure to the benefit of, the Parties hereto and
Landowner’s respective personal representatives, heirs, successors, transferees, and
46
assigns, and the Trust’s successors, transferees, and assigns, and shall continue as a
servitude running in perpetuity with the Property;
21.9.Termination of Rights and Obligations. A Party’s rights and obligations
under this A&R Easement terminate upon transfer of the Party’s interest in the A&R
Easement or the Property, except that liability for acts or omissions occurring prior to
transfer shall survive transfer;
21.10. Captions. The captions in this instrument have been inserted solely for
convenience of reference and shall have no effect upon construction or interpretation;
21.11. Counterparts. The Parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by all the Parties. Each counterpart
shall be deemed an original instrument as against any Party who has signed it. In the event
of any disparity between the counterparts produced, the recorded counterpart shall be
controlling;
21.12. Merger. Unless the Parties expressly state that they intend a merger of
estates or interests to occur, no merger shall be deemed to have occurred hereunder or
under any document executed in the future affecting this A&R Easement; Should the Trust
in the future own all or a portion of the fee interest in the Property, the Trust as successor
in title to Landowner, shall observe and be bound by the obligations of Landowner and the
restrictions imposed on the Property by this A&R Easement. In addition, this A&R
Easement shall not merge with the fee title without the prior written approval of
Landowner. The Easement shall not be extinguished, in whole or in part, through the legal
doctrine of merger in view of the public interest in its enforcement.
21.13. Acceptance of Gift per IRC Section 170(F)(8). The Trust acknowledges
receipt and acceptance of this A&R Easement encumbering the Property, for which no
goods or services were provided;
21.14. Authority to Execute. Each Party represents that such Party has full power
and authority to execute and deliver this Amended and Restated Deed of Conservation
Easement; to perform its obligations under this A&R Easement; that the individual
executing this A&R Easement on behalf of said Party is fully empowered and legally
authorized to do so; and that this A&R Easement constitutes a valid, enforceable, and
legally binding obligation of said Party.
IN WITNESS WHEREOF, Landowner and the Trust have executed this Deed of
Conservation Easement as of the date first written above.
(Signatures on following pages)
47
LANDOWNER:
CITY OF ASPEN,
a Colorado municipality,
By:___________________________________________________
Torre, Mayor
STATE OF COLORADO )
) ss.
COUNTY OF ____________)
The foregoing instrument was acknowledged before me this ______ day of ____________,
2021, by Torre, as Mayor of the CITY OF ASPEN, a Colorado Municipality as
Landowner.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
Notary Public
My commission expires: ________________
48
ACCEPTED by the TRUST:
ASPEN VALLEY LAND TRUST,
a Colorado nonprofit corporation,
By: ______________________________________
Suzanne Stephens, Executive Director
STATE OF COLORADO )
) ss.
COUNTY OF ____________)
The foregoing instrument was acknowledged before me this ____ day of
________________, 2021, by Suzanne Stephens as Executive Director of ASPEN
VALLEY LAND TRUST, a Colorado nonprofit corporation.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
Notary Public
My commission expires: ________________
49
EXHIBIT A
Legal Description of Property and Activity Envelopes
PROPERTY LEGAL DESCRIPTION
A parcel of land situated in Sections 16 and 21, Township 9 South,Range 85 West of the
6th P.M. being a portion of the Cozy Point Ranch as described in Book 690 at Page 5 of
the Pitkin County records described as follows:
Beginning at a point on the Westerly boundary of the Dedicated Open Space Parcel of the
Cozy Point Ridge Subdivision recorded in Plat Book 22 at Page 26 of the Pitkin County
records whence the Northwest corner of Section 16 (1913 Brass Cap) bears N 20
021'49” W
502.66 feet;
thence N 69023’59" E 674.16 feet to the Northwesterly right of way of Colorado State
Highway No. 82;
thence Southerly along the Westerly right of way of Colorado State Highway No. 82 as
described in Book 157 at Pages 538, 539 & 540 and Book 575 at Page 976 as follows:
S 410 33'37” E 395.21 feet;
591.57 feet along the arc of a curve to the right whose radius is 1,382.50 feet (chord bears
S 29
018'07" E 587.07 feet)
S 170 02'37" E 1,360.80 feet;
130.20 feet along the arc of a curve to the right whose radius is 2,815.00 feet (chord bears
S 150 43’07” E 130.19 feet)
S 14023’37" E 2,435.30 feet;
131.14 feet along an arc of a curve to the left whose radius is 5,780.00 feet (chord bears
S 15002’37" E 131.14 feet)
S 15040’45”E 912 .95 feet;
S 74
021' W 20.0 feet;
S 02
047’W 63.2 feet;
S 15039’E 50. 0 feet;
S 64028'14”E 53.22 feet;
S 150 40’45" E 2,039.41 feet;
S 15041’37”E 2,084.63 feet to the Northerly right of way of Brush Creek County Road;
thence Westerly along the Northerly right of way of Brush Creek County Road as follows:
S 430 43’17" W 116. 15 feet;
S 73032’00” W 145.71 feet;
404.44 feet along an arc of a curve to the left whose radius is 1,005.70 feet (chord bears
S 620 00'46" W 401.72 feet);
thence N 19
0 44’W 38.62 feet to the Southeast corner of Brush Creek Village Subdivision
Filing 2 as Platted;
thence Northerly along the Easterly line of Brush Creek Village Subdivision Filing 2 as
Platted as follows :
N 19044 ' W 390.00 feet;
N 310 25’W 732.00 feet;
50
N 240 00’W 1,831.29 feet;
N 64055' W 340.50 feet to the Easterly line of the Elay Parcel described in Book 228 at
Page 599 of the Pitkin County Records;
thence Northerly along the Easterly line of said Elay Parcel as follows :
N 25048'20" E 153.17 feet;
370.63 feet along an arc of a curve to the left whose radius is 531.95 feet (chord bears
N 05050'56”E 363.18 feet)
197.92 feet along an arc of a curve to the right whose radius is 630.00 Feet (chord beards
N 050 06’40" W 197.11 feet)
N 03053'20" E 576.86 feet;
thence N 070 01’32” W 1,942.73 feet to the Westerly line of the Dedicated Open Space
Easement of the Cozy Point Ridge Subdivision;
thence N 20021'49” W 3,989.84 feet along the Easterly line of said Open Space Easement
to the point of beginning.
COUNTY OF PITKIN, STATE OF COLORADO.
51
“ACTIVITY ENVELOPE A” LEGAL DESCRIPTION
A PARCEL OF LAND SITUATED IN SECTION 21, TOWNSHIP 9 SOUTH, RANGE
85 WEST OF THE 6TH P.M. A PORTION OF THE COZY POINT RANCH AS
DESCRIBED IN BOOK 690 AT PAGE 5 OF THE PITKIN COUNTY RECORDS
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SECTION 16 (1913 BRASS
CAP); THENCE S 20°20'14" E A DISTANCE OF 502.46 FEET TO THE NORTHWEST
CORNER OF COZY POINT RANCH A FOUND REBAR AND CAP LS NO. 16129;
THENCE ALONG THE WESTERLY BOUNDARY OF SAID RANCH S 20°21'50" E A
DISTANCE OF 3989.84 FEET TO A FOUND REBAR AND CAP LS NO. 16129;
THENCE CONTINUING ALONG SAID BOUNDARY S 07°01'32" E A DISTANCE OF
1942.73 FEET TO A FOUND REBAR AND CAP LS NO. 16129; THENCE LEAVING
SAID BOUNDARY S 05°34'47" E A DISTANCE OF 322.18 FEET TO THE POINT OF
BEGINNING; THENCE THE FOLLOWING FORTY (40) COURSES:
1) N 80°03'46" E, 786.83 FEET TO A POINT ON THE EASTERLY BOUNDARY OF
SAID COZY POINT RANCH;
2) S 24°42'27" E ALONG SAID EASTERLY BOUNDARY, 247.49 FEET;
3) LEAVING SAID EASTERLY BOUNDARY S 28°04'45" W, 47.09 FEET;
4) S 16°13'04" W, 48.58 FEET;
5) S 19°30'27" E, 67.39 FEET;
6) S 70°09'00" W, 38.00 FEET;
7) S 26°16'23" W, 28.41 FEET;
8) S 14°03'33" E, 43.53 FEET;
9) S 26°18'27" W, 64.21 FEET;
10) S 38°57'50" W, 59.99 FEET;
11) S 28°52'26" E, 58.93 FEET;
12) S 39°08'17" W, 25.16 FEET;
13) S 20°59'37" E, 7.44 FEET;
14) S 14°40'53" W, 48.06 FEET;
15) S 06°27'17" E, 52.11 FEET;
16) S 19°25'46" E, 26.43 FEET;
17) N 86°10'08" E, 54.19 FEET;
18) N 10°34'57" W, 83.57 FEET;
19) N 77°20'58" E, 105.22 FEET;
20) S 07°40'55" E, 99.22 FEET;
21) S 86°00'29" W, 41.90 FEET;
22) S 02°33'07" E, 26.29 FEET;
23) S 85°54'36" W, 117.65 FEET;
24) S 06°30'48" E, 113.87 FEET;
25) 20.18 FEET ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 29.73
FEET AND A CENTRAL ANGLE OF 38°54'13" (CHORD BEARS S 12°56'19" W,
19.80);
52
26) 39.39 FEET ALONG A COMPOUND CURVE TO THE RIGHT HAVING A
RADIUS OF 56.36 FEET AND A CENTRAL ANGLE OF 40°03'09" (CHORD BEARS
S 52°24'59" W, 38.60);
27) 30.63 FEET ALONG A COMPOUND CURVE TO THE RIGHT HAVING A
RADIUS OF 179.86 FEET AND A
CENTRAL ANGLE OF 09°45'28" (CHORD BEARS S 77°19'17" W, 30.59);
28) S 61°52'20" W, 21.12 FEET;
29) S 70°26'49" W, 20.87 FEET;
30) S 22°27'26" W, 31.04 FEET;
31) S 07°31'18" E, 122.40 FEET;
32) S 81°10'39" W, 308.42 FEET;
33) S 73°13'12" W, 183.32 FEET;
34) N 61°23'43" W, 25.84 FEET;
35) N 15°41'10" W, 438.02 FEET;
36) N 61°52'39" W, 42.33 FEET;
37) N 72°57'52" W, 17.14 FEET;
38) 187.96 FEET ALONG A NON-TANGENT CURVE TO THE LEFT HAVING A
RADIUS OF 584.95 FEET AND A
CENTRAL ANGLE OF 18°24'40" (CHORD BEARS N 04°54'21" W, 187.16);
39) 181.27 FEET ALONG A REVERSE CURVE TO THE RIGHT HAVING A RADIUS
OF 577.00 FEET AND A CENTRAL ANGLE OF 18°00'01" (CHORD BEARS N
05°06'40" W, 180.53);
40) N 03°53'20" E, 259.07 FEET TO THE POINT OF BEGINNING SAID PARCEL OF
LAND CONTAINING 829,569 SQUARE FEET OR 19.044 ACRES, MORE OR LESS.
53
“ACTIVITY ENVELOPE B” LEGAL DESCRIPTION
A PARCEL OF LAND SITUATED IN SECTIONS 16 AND 21, TOWNSHIP 9 SOUTH,
RANGE 85 WEST OF THE 6TH P.M., SNOWMASS VILLAGE, COUNTY OF PITKIN,
STATE OF COLORADO. A PORTION OF THE COZY POINT RANCH AS
DESCRIBED IN BOOK 690 AT PAGE 5 OF THE PITKIN COUNTY RECORDS
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SECTION 16 (1913 BRASS
CAP); THENCE S 20°20'14" E A DISTANCE OF 502.46 FEET TO THE NORTHWEST
CORNER OF COZY POINT RANCH A FOUND REBAR AND CAP LS NO. 16129;
THENCE ALONG THE WESTERLY BOUNDARY OF SAID RANCH S 20°21'50" E A
DISTANCE OF 3989.84 FEET TO A FOUND REBAR AND CAP LS NO. 16129;
THENCE LEAVING SAID BOUNDARY S 22°08'39" E A DISTANCE OF 837.22 FEET
TO THE POINT OF BEGINNING; THENCE THE FOLLOWING TWENTY-SEVEN
(27) COURSES:
1) S 67°21'43" E, 160.72 FEET;
2) S 71°45'18" E, 87.84 FEET;
3) S 02°32'49" W, 163.02 FEET;
4) S 09°50'37" W, 51.31 FEET;
5) S 73°53'59" E, 67.82 FEET;
6) S 11°38'39" E, 83.01 FEET;
7) S 36°33'44" W, 89.57 FEET;
8) S 40°28'32" W, 66.02 FEET;
9) S 66°18'19" W, 86.11 FEET;
10) S 55°05'04" W, 26.76 FEET;
11) N 77°09'45" W, 71.02 FEET;
12) N 23°39'12" W, 27.76 FEET;
13) N 12°51'32" E, 50.77 FEET;
14) N 63°50'49" E, 36.16 FEET;
15) N 04°37'02" W, 35.94 FEET;
16) N 32°31'28" E, 31.93 FEET;
17) N 19°47'20" E, 31.49 FEET;
18) N 16°08'47" E, 42.89 FEET;
19) N 23°06'16" E, 52.02 FEET;
20) S 88°20'50" E, 61.14 FEET;
21) N 09°10'26" E, 13.80 FEET;
22) N 10°52'54" W, 49.83 FEET;
23) N 24°16'03" W, 35.72 FEET;
24) N 72°29'55" W, 63.78 FEET;
25) N 69°15'19" W, 116.40 FEET;
26) N 38°38'29" W, 34.61 FEET;
27) N 16°10'01" E, 110.48 FEET TO THE POINT OF BEGINNING.
SAID ENVELOPE CONTAINING 86,030 SQUARE FEET OR 1.975 ACRES, MORE
OR LESS.
54
EXHIBIT B
Map of Property
55
35
EXHIBIT C
Survey of Property & Activity Envelopes
56
36 57
37 58
38 59
39 60
STATEMENT OF AUTHORITY
Pursuant to C.R.S. §38-30-172, the undersigned hereby executes this Statement
of Authority on behalf of The City of Aspen, a Colorado municipality, an entity other
than an individual, capable of holding title to real property (the “Entity”), and states as
follows:
The name of the Entity is: The City of Aspen
The Entity is a:Colorado municipality
The mailing address for the Entity is: 130 S Galena Street, Aspen, CO 81611
The name or position of the person authorized to execute instruments conveying,
encumbering, or otherwise affecting title to real property on behalf of the Entity,
including grant and conveyance of conservation easements, is:Torre, Mayor, City of
Aspen, Colorado.
The limitations upon the authority of the person named above or holding the position
described above to bind the Entity are as follows: __None_________________________
The Entity is authorized to enter into transactions involving, conveying,
and granting deeds of conservation easement on the real property it owns.
EXECUTED this ___ day of _____________, 2020.
Signature: _________________________________
Torre, Mayor, Aspen Colorado
STATE OF COLORADO ) ss.:
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this __ day of ____________,
2020 by Sara Ott, City Manager, City of Aspen, a Colorado municipality, on behalf of the
corporation, as his or her, and its, free act and deed.
____________________________________
Notary Public
My Commission Expires: _______________
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Page 1 of 3
MEMORANDUM
TO:Mayor and Aspen City Council
FROM:Lee Ledesma, Finance and Administrative Services Manager
Karen Harrington, Director of Quality
THRU:Tyler Christoff, Utilities Director
MEETING DATE:April 13, 2021
RE:Resolution #034 -Contract with Paymentus Corporation
Utilities Department payment software
REQUEST OF COUNCIL:
Staff requests that Council approve a contract withPaymentus Corporation (Paymentus) for an online bill
payment system for Utilities Department.
PREVIOUS COUNCIL ACTION:
Utilities Billing has provided an online payment option for customers since 2003. Most recently, on in
June of 2018 Council approved a contract with Invoice Cloud for the online payment system for Utilities.
DISCUSSION:
The City is nearing the end of its contract with Invoice Cloud, who is the current online payment services
vendor for Utilities. Unfortunately, Invoice Cloud’s payment platform has failed to keep pace with the
changing demands of Aspen Utilities’ customer base. The new system must be capable of handling both
payments made by and individual, as well as payments made by a third party for multiple clients. The
ability for such third parties to link and handle the accounts for which they are responsible via a single
login, and without complications or errors, is essential. By moving to a new system, City staff hopes to
reduce the time and effort it takes for customers and staff to handle utility payments.
Specific objectives of contracting with a new Utilities bill payment vendor are:
Reduce billing errors
Decrease the need for staff assistance to support individual customers with online payments
Present an easy and intuitive platform for customers
Provide an easy and intuitive platform for 3rd parties to manage multiple accounts on behalf of
their clients
Assure customers and office staff have immediate access to all the information they need, 24/7
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Page 2 of 3
In fall 2020, Utilities issued an RFP for an online payment system vendor who could meet a detailed set of
business requirements. Thirteen vendors responded to the RFP. A cross-functional evaluation team with
representatives from Utilities, the Quality Office, IT, and Finance evaluated the proposals and selected
Paymentus as the successful vendor. Some of the relative strengths of Paymentus include:
The ability to accept a wide variety of payment types, going beyond standard credit card and
eCheck payment methods to options such as PayPal, Amazon Pay, Venmo and others
The ability to pay online, via IVR or via text
Strong work relationships with DataProse (Utility’s billing vendor) and Tyler MUNIS (the Utility
Billing financial software)
Strong reporting capability
Willingness to indemnify the City for Level 1 PCI compliance
The ability to effectively meet the needs of property management companies, who handle
multiple accounts
The ability to handle financial transactions beyond monthly Utility bills, thus meeting the broader
needs of Utilities and, potentially in the future, other departments within the City.
The initial development phase of the project is anticipated to take about two months. There is no cost for
the design and configuration of the system. Instead, the vendor has a per transaction feeonce the system
is up and running. This fee, along with fees charged by banks or credit card companies, can either be
passed on to customers or absorbed by the City. In this case, Utilities is electing to absorb the fees, which
is expected in turn to encourage online payment participation. Because the charges are dependent on
factors such as the number and types of transaction made, a specific charge for the year is estimated
based on historical use, at $45,000 per year.
FINANCIAL/BUDGET IMPACTS: Current operating budgets in Water and Electric include authority for
credit card processing and banking fees. The change in vendors from Invoice Cloud to Paymentus should
not largely impact the operational costs to provide these services for customers, with the exception of
any additional volume of transactions pushed through this payment portal. Therefore, at this time, there
is no expectation for increased spending authority to make this change to the online bill payment provider.
RECOMMENDED ACTION: Staff recommends that Council approve the contract with Paymentus
Corporation for the configuration, use and maintenance of its online Utilities payment services.
PROPOSED MOTION:I move to approve Resolution #034, Series of 2021, to execute a Professional
Services Agreement between the City of Aspen, Colorado, and Paymentus Corporation for professional
services related to the setup, use and maintenance of its online payment system.
CITY MANAGER COMMENTS:
ATTACHMENTS
Exhibit A: Resolution #034, Series of 2021
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Page 3 of 3
Exhibit B: Professional Services Agreement with Paymentus Corporation
64
RESOLUTION # 034
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND PAYMENTUS CORPORATION. AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract for
Utilities payment software services, between the City of Aspen and Paymentus
Corporation, a true and accurate copy of which is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for Utilities payment software services, between the City of Aspen and Paymentus
Corporation, a copy of which is annexed hereto and incorporated herein, and does
hereby authorize the City Manager to execute said agreement on behalf of the City
of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 13
th day of April, 2021.
Torre, Mayor
I, Nicole Henning, 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, April 13th, 2021.
Nicole Henning, City Clerk
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1
CITY OF ASPEN STANDARD FORM OF AGREEMENT V 2009
MASTER SERVICES AGREEMENT
City of Aspen Contract No.: 2020-084
AGREEMENT made as of April __ , 2021.
BETWEEN the City:
Contract Amount:
And Paymentus:
For the Following Project:
Exhibits appended and made a part of this Agreement:
Online Utility Billing Services
If this Agreement requires the City to
pay an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval Date: ___
Resolution No.: ___________
The City of Aspen (“Client” or “City”)
Utilities Department
Attn: Tyler Christoff
Aspen, Colorado 81611
Phone: 970-920-5118
Total: Fees as charged in Exhibit B,
per transaction
Paymentus Corporation (“Paymentus”)
Attention: Jerry Portocalis
13024 Ballantyne Corporate Park, Suite 400
Charlotte, NC 28277
Phone: 980-255-3000
Exhibit A:
Exhibit B:
Exhibit C:
Scope of Work
Fee Structure
Service Level Commitments
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This Master Services Agreement (“Agreement”) is entered into as of the date of the last of the
signatures set forth below (“Effective Date”), by and between the City of Aspen and Paymentus
Corporation, a Delaware Corporation with a principal place of business at 13024 Ballantyne Corporate
Parkway, Suite 400, Charlotte, North Carolina 28277.
STATEMENT OF PURPOSE
Paymentus desires to provide and the City desires to receive electronic bill payment services as more
particularly described in this Agreement under the terms and conditions set forth herein.
AGREEMENT
In consideration of the mutual covenants hereinafter set forth, the receipt and sufficiency of which
are hereby acknowledged, the parties, intending to be legally bound, hereby covenant and agree as
follows. This Agreement consists of the following documents:
(i) The cover page
(ii) the General Terms and Conditions
(iii) the signature page
(iv) the following Exhibits:
a. Exhibit A: Scope of Work
b. Exhibit B: Paymentus Service Fee Schedule
c. Exhibit C: Service Level Commitments
This Agreement represents the entire agreement between the parties with respect to its subject
matter, supersedes all prior written or oral agreements or understandings related to the subject matter
hereof, and may be changed only by agreements in writing signed by the authorized representatives of
each of the parties.
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GENERAL TERMS AND CONDITIONS
FOR PAYMENTUS MASTER SERVICES AGREEMENT BETWEEN PAYMENTUS
CORPORATION AND THE CITY OF ASPEN, COLORADO
1 Definitions
For the purposes of the Agreement, the following terms and words have the meaning ascribed to
them, unless the context clearly indicates otherwise.
1.1 “Agreement “or “Master Agreement” means the Master Services Agreement between the
parties, as amended from time to time.
1.2 “Average Bill Amount” means the total amount of Payments processed through Paymentus
in a given month divided by the number of the Payments for the same month.
1.3 “Effective Date” means the date the City provides a Notice to Proceed, which shall occur
within 30 days of the last date of the last contract signature.
1.4 “Excess Payment Amount” means the amount by which the total of all Payment Amounts from
Non-Qualified Transactions processed in a calendar month exceeds 5% of the total of the Payment
Amounts of all card Payments processed that month.
1.5 “Fee Assumptions” means information used to calculate the Paymentus Fee (as defined in
Section 3.2), including (i) the projected Average Bill Amount, (ii) the projected payment method mix
(credit vs debit vs e-check) and (iii) an assumption by Paymentus that the total Payment Amount
processed each month resulting from Non-Qualified Transactions shall not exceed five percent (5%)
of the total Payment Amount of all card Payments processed that month.
1.6 “Initial Setup” means the first personalization and activation of the standard service with
respect to each channel described on Schedule A as specified during the implementation process.
1.7 “IPN” or “Instant Payment Network™” means the network developed by Paymentus to enable
customer engagement, bill presentment and receipt of payments by businesses through multiple
channels as enabled from time to time by Paymentus.
1.8 “Launch Date” means the date on which the City completes the introduction to Users of all
Services selected by The City as of the Effective Date.
1.9 “Non-Qualified Transaction” means (i) a Payment made with a card or payment method
generally issued for business use that results in interchange fees or other processing charges assessed
by a Paymentus Authorized Processor or card payment association that are higher than those charged
for transactions with cards payment methods issued for consumer use; or (ii) a Payment that does not
qualify for reduced interchange fees under programs in which is then currently participating. These
high-cost cards payment methods may include, among others, corporate cards, virtual cards, purchase
cards, business cards, and travel and entertainment cards.
1.10 “Payment” means payment by a User through the Platform for The City’s services, The City’s
bills, or other amounts owed to The City.
1.11 “Payment Amount” means the amount of a Payment.
1.12 “Paymentus Authorized Processor” means a Paymentus authorized merchant account provider
or payment processing intermediary or gateway.
1.13 “Paymentus Fee” is defined in Section 3.2.
1.14 “Platform” is defined in Section 2.1.
1.15 “Reversed or Chargeback Transactions” means cancelled transactions due to (i) User error,
(ii) a User’s challenge to Payment authenticity, or (iii) an action by a financial institution or a
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Paymentus Authorized Processor (commonly referred to as ACH or
eCheck returns or credit/debit card chargebacks).
1.16 “Services” means the performance by Paymentus of the payment
and related services selected by The City as set forth in Exhibits A, B and
C as provided in Section 2.3.
1.17 “User” means a user of the City’s services.
1.18 “Vendors” means MUNIS and DataProse.
2 Description of Services to be Performed
2.1 Scope of Services
Paymentus agrees to perform the Services described throughout this agreement.
Paymentus will provide Users the opportunity to view and receive bills, make Payments
using the payment methods provided under Exhibit B and other payment methods and
wallets as offered by Paymentus from time to time under the terms of Section 2.4 of this
Agreement. The payment methods and other services provided may be used within the
channels described on Exhibit B or on other websites or mobile/web apps or chatbots or
voice assistants that are part of the Instant Payment Network™, (collectively referred to
as the “Platform”). During the term of this contract, Paymentus will be the exclusive
provider of the Services described in this contract for City Utility Billing.
2.2 Professionalism
Paymentus will perform in a professional manner all Services required to be performed
under the Agreement. Paymentus shall commence Work immediately upon receipt of a
written Notice to Proceed from the City, which Notice shall be issued no later than thirty
(30) days from the date of the last required signature on the Agreement, and complete all
tasks and provide services expeditiously as is consistent with professional skill and care.
The parties anticipate, provided that 1) this Agreement is signed, 2) the Work can
commence in April 2021 and 3) Paymentus receives full cooperation from City and its
Vendors, that all configuration and integration work pursuant to this Agreement shall be
completed no later than June 30, 2021, with online payment services starting immediately
thereafter on a mutually agreed upon Launch Date.
Upon request of the City, Paymentus shall submit, for the City's approval, a schedule for
the performance of Paymentus's configuration and implementation services, which may be
reasonably adjusted as required as the project proceeds, and which shall include
allowances for periods of time required by Paymentus or the City’s project manager for
review and approval of submissions and for approvals of authorities having jurisdiction
over the project. This schedule, when approved by the City, shall not, except for
reasonable cause, be exceeded by Paymentus for other than delays caused by the City or
its Vendors.
Paymentus shall be fully responsible for all acts and omissions of its subcontractors to
the same extent that Paymentus is responsible for the acts and omissions of persons
directly employed by it.
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2.3 New or Enhanced Services
From time to time Paymentus may offer the City new or enhanced services, such as new
functionality within the IPN, the ability to accept other payment methods, methods of
bill presentment, the ability to access alternative payment processors or other service
providers or Paymentus Authorized Processors or otherwise modify the terms and
conditions under which the Services are provided (“Service Enhancements”). Paymentus
will provide the City, with notice by email to the person designated as provided in
Section 9.1 disclosing the terms, including any contacts or contract amendments, under
which the Service Enhancements will be made available. If the Service Enhancements
will result in additional fees to or impose additional obligations on the City or Users, the
City will have at least thirty (30) days after the date of the notice to opt-out of the Service
Enhancements in the manner provided in the notice. If the City does not opt-out, then
when the Service Enhancements are introduced they will form part of the Services and
the City will be bound by the additional terms as disclosed in the notice, and Exhibit B
will be deemed amended to reflect changes in the Services and fees.
3 Acceptance Of Deliverables And Service Standards
Exhibits A and Exhibit C detail Service requirements and service support standards.
Paymentus agrees that these requirements and standards, as well as any others described
in this Agreement or mutually agreed to in a signed Amendment to this Agreement, will
be met for the full term of this contract.
3.1 Initial Configuration
City acknowledges that Paymentus has demonstrated its Platform to City and City is
entering into this Agreement based on the understanding that Paymentus is not a custom
software development entity and has a fully functional Platform that is operational today.
The purpose of any Initial Acceptance Test below in Section 3.2 is to verify if the
requirements that City has requested are included in the Platform, have been delivered by
Paymentus, and are operating as expected. City further acknowledges that Paymentus is
the sole expert in its own Platform design and shall use its expertise to collaborate with
the City in making design decisions that accomplish the requirements specified by City.
In case of a conflict between the City and Paymentus on the design options, Paymentus
shall have the final authority to make the decision. However, should the solution selected
by Paymentus be determined by the City not to meet the requirements and clearly provides
reasonable detail to support this conclusion to Paymentus in accordance with Section 3.3
below, then Paymentus shall acknowledge that such requirement was not met and shall
promptly work to meet the requirement in accordance with the requirements in Section
3.3 below.
3.2 Initial Acceptance Timelines and Criteria
Upon receipt of a written notice from Paymentus, delivered via email to the City Project
Manager, that it has completed the initial implementation, City will have no more than thirty (30)
business days to review, inspect, and test the Platform as implemented to determine whether it
complies with this Agreement.
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The City will use an Acceptance Test to make the initial determination of performance.
Paymentus shall collaborate with, guide and assist the City in establishing the Acceptance Test.
The Acceptance Test will include Criteria designed to determine:
1. Whether all agreed upon functionalities are working as expected and without errors and bugs.
This includes the functionalities in Table 1 of Exhibit A; integrations other City Systems; and
any refined or updated requirements that may be agreed to by both parties during the initial
configuration and implementation of this project.
2. Whether the security protocols Paymentus claims to meet are in fact met.
3. Whether overall system performance and response times are acceptable, with no time-out
errors or significant delays in processing.
At no additional cost to the City, Paymentus personnel shall be available during the Acceptance
Test to provide assistance as reasonably necessary. The City’s acceptance of the Software and
other Deliverables shall in no manner waive the City’s rights under any representation or
warranty set forth in this Agreement.
In the event the City determines that additional time is needed to complete the Acceptance Test,
the City will in a timely manner collaborate with Paymentus to establish an Extension to the Test
Period. Paymentus shall not unreasonably withhold such an Extension of a Test Period. Should
no Extension of the Test Period be requested by the City within the originally agreed to Test
Period or a subsequent Extension of the Test Period and should no Reject Notice be received by
Paymentus from the City within the agreed upon Test Period or a subsequent Extension Test
Period, then the configuration or integration will be considered to be accepted.
3.3 Initial Acceptance Testing Results and Notifications
If the City determines that the Platform has successfully passed the Acceptance Test, it will
promptly acknowledge acceptance by providing such determination (the “Acceptance Notice”) in
writing via email to the Paymentus Authorized Representative listed in Exhibit A. For purposes
of this agreement “Acceptance” means successful passing of the Acceptance Test performed by
the City to demonstrate whether the system successfully meet the conditions and criteria set forth
or referenced in this Agreement.
If City determines the Platform has not successfully passed the Acceptance Test, the City will
promptly notify Paymentus in writing of such determination (the “Failure Notice”) and will
describe in reasonable detail its reasons for such determination. The Parties will have 10 (ten) days
to discuss the reasons for the failure. If such material defects are directly caused by Paymentus
(“Defects”), Paymentus shall have thirty (30) days to correct any such Defects, at its expense
unless such defect is due to connectivity with the Vendor CIS.
If Paymentus is unable to cure Defects, within the thirty (30) days cure period, the City shall have
the right and option to terminate this Agreement. Paymentus will provide a notice in writing to the
City if Paymentus disagrees with the City’s decision or if it reasonably believes based on is
experience in the industry that Defects require additional time to cure. The City shall not
unreasonably withhold additional time to cure a defect if Paymentus is able to illustrate that in the
industry more time is typically required to cure the defect in question. If the defect cannot be
cured, the City and Paymentus each retain the right to terminate this agreement.
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3.5. Ongoing Support Service Levels
Following the Launch Date, Paymentus agrees to provide regular service support in accordance
with the Service Levels detailed in Attachment C, and agrees that it will not degrade the
functionality of the Services described in this Agreement at any time during the term of this
Agreement.
4 Compensation
4.1 No Fee Installation
Paymentus will charge no fees related to the Initial Setup of standard service and any
additional implementation or configuration services associated with meeting the
requirements of the City, as outlined in this Agreement as may be jointly clarified and
agreed upon during the project.
4.2 Paymentus Fee
The City will be billed the fees as provided in Exhibit B (“Paymentus Fee”), unless a fee
is User paid, in which case Paymentus will charge each User the Paymentus Fee as
provided in Exhibit B to be collected in addition to the corresponding Payment as part of
the transaction. Paymentus will pay the corresponding processing and related fees
(“Transaction Fees”) except for fees related to Reversed or Chargeback Transactions.
The Paymentus Fee is based on the Fee Assumptions. The City will be billed additional
Paymentus Fees equal to 3.5% of the Excess Payment Amount for each month during
which there is an Excess Payment Amount. Paymentus may amend Exhibit B upon prior
written notice to the City if there are changes in the card or payment system rules or
changes in payment processing fees or other events that increase the cost of processing
transactions, such as changes in the average Payment Amount, the mix of payment
methods or of interchange rates applied to transactions. The amended Paymentus Fee will
take effect 30 days after written notice to the City.
Fee increases will only apply if there are major changes in costs, due to industry
adjustments over which Paymentus has no control. In such circumstances, Paymentus will
(i) provide evidence to the City of the price increase and (ii) apply a calculation to make
a proportional increase across the customer base to cover Paymentus costs.
4.3 Disputed Fees
In the event that City disputes, in good faith, any charges assessed by Paymentus, it shall
notify Paymentus of such dispute within seven (7) business days of the receipt of the
respective charges and the parties shall resolve the dispute in good faith within fourteen
(14) calendar days following City’s notice to Paymentus thereof.
4.4 Fund Availability
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Financial obligations of the City payable after the current fiscal year are contingent upon
funds for that purpose being appropriated, budgeted and otherwise made available. If this
Agreement contemplates the City utilizing state or federal funds to meet its obligations
herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement. If the funds become unavailable City
will give Paymentus three (3) months’ notice before terminating this Agreement.
Notwithstanding the forgoing, the City agrees that prior to giving notice of termination, it
will engage in discussions with Paymentus to explore the opportunity of changing to a
payment model where the City’s customers pay the fees (“Convenience Fee Model”) so
that the Services might continue to be provided to the City free of charge to the City, and
if such an agreement is reached, the parties will memorialize any agreement that they
reach in an Amendment to this Agreement which will agree to honor the remainder of the
Term as set forth herein using the Convenience Fee Model for payment. The City retains
the discretion to decline to accept a Convenience Fee Model agreement.
5 Payment Processing
5.1 Integration with The City’s Systems
At no charge from Paymentus to the City, Paymentus will develop one (1) file format
interface with the City’s billing system for each of the current Vendors using the City’s
existing text file format currently used to post payments to the City’s billing system. The
City will be responsible to provide Paymentus with the file format specification and will
fully cooperate with Paymentus during the development of the said interfaces.
The City may choose instead to create an automated file integration process with the
billing system, also at no charge. If the City chooses instead to create an automated file
integration process to download the posting file, due to Paymentus security requirements,
the City will use Paymentus specified integration process. As such, the Paymentus
platform does and can function independent of any billing system integration. A payment
posting file can be emailed or downloaded from the Paymentus Agent Dashboard.
If the City chooses to have the Paymentus platform integrated with its billing system,
Paymentus offers two options:
(i) Paymentus standard integration specification that the City can use to
integrate its billing systems with Paymentus platform (“Standard Integration”); or
(ii) Paymentus to either customize or configure its platform to integrate
with the City using file specification or APIs supported by the City’s billing system (“The
City Specific Integration”).
If the City chooses Standard Integration, Paymentus agrees to fully cooperate with the
City and will provide its specification to the City. Paymentus also agrees to participate in
meetings with the City’s software vendor to provide any information or clarifications
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needed to understand Standard Integration. Paymentus agrees to provide all
integration/interface specifications within 30 days from the Effective Date. The City will
take commercially reasonable steps to develop the integration within 60 days from the
date on which the City has received all integration specifications from Paymentus.
If the City chooses the City Specific Integration, Paymentus agrees to develop that
integration at no charge from Paymentus to the City, provided however, the City agrees
to fully cooperate with Paymentus and cause its software vendors and other service
providers to fully cooperate with Paymentus. The City agrees to provide all specifications
required for the City Specific Integration. The City further agrees to participate in testing
with Paymentus and if needed, cause its billing software vendors and other service
providers to participate in testing. The City agrees to provide or make available all
integration/interface specifications within 45 days from the Effective Date. Paymentus
will take commercially reasonable steps to develop the integration within 60 days from
the date on which Paymentus has received all the integration specifications from the City
or its vendors.
Parties agree that if the parties do not cooperate fully, it can lead to each party being unable
to perform its duties to deliver the integration on time.
Based on the City’s use of the Platform and its respective modules selected under the
Agreement, Paymentus will require the following integration points for the integration
with the billing system:
MODULE INTEGRATION POINT
One-time payment
Module
Customer Information: Text File or
Real Time Payment Posting: Text
File or Real Time
Recurring Payment
Module
Text File
E-billing Module for
Billing Data
Text File or Real-time link to billing data
Out-bound Notification-
Audience File
Text File for customer engagement messages
Each of these can be based on Standard Integration or the City Specific Integration.
The Initial Setup for the Web or IVR interface will be considered complete when the first
Standard Integration or the City Specific Integration, as applicable for all City Vendors,
is completed such that Paymentus and the City are able to exchange files relevant to each
interface without error, as contemplated in this Section 4.1.
In the event the City determines it is allowable to implement the Services without
integration, the Initial Setup will be considered complete when a User is able to access the
Platform to process a payment and the requirements in Exhibit A have been met along
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with the completion of the tasks in the Project Plan and any other documents developed
and mutually agreed to in the course of this Agreement.
5.2 Enhancements
The parties agree that the Services are provided on a “platform as a service” basis, and
not as a result of custom software development. Paymentus’ standard Platform will be
personalized to achieve certain additional functional requirements of the City, as
clarified and agreed during implementation (“Enhancements”) and as required in the
Scope of Work in Exhibit A.
Enhancements may include some or all of the features included in any technical
requirements or similar document provided to Paymentus. The parties will fully co-
operate with one another to: a) ensure that requirements with respect to Enhancements
are clarified as needed; b) accept Paymentus proposed reasonable alternatives to achieve
the City’s functional objectives within the limits of the Paymentus platform; and c)
accept Paymentus’ reasonable estimates of time for completion, designs and plans with
respect to agreed Enhancements. There will be no fee charged by Paymentus to the City
for Enhancements, provided Paymentus designs and plans are accepted by the City. If
the Services are to be offered at multiple locations, or if the Services include multiple
Enhancements, the parties will agree to a phased implementation.
5.3 PCI Compliance
To the extent that either party receives payment card information subject to the Payment
Card Industry Data Security Standards (“PCI-DSS”) in connection with providing the
Services, it will comply with all requirements of the PCI-DSS with respect to storage,
transmission and disclosure of payment card information.
5.4 Explicit User Confirmation
Paymentus will confirm the dollar amount of all Payments, and when paid by the User,
the corresponding Paymentus Fee to be charged and electronically obtain the User’s
approval of the charges prior to initiating payment authorizations transaction. Paymentus
will provide User with electronic confirmation of all transactions.
5.5 Merchant Account
Paymentus will arrange for the City to have a merchant account with the Paymentus
Authorized Processor for processing and settlement of transactions.
5.6 Payment Authorization.
For authorization purposes, Paymentus will electronically transmit all card or other
payment transactions to the appropriate processing center, in real time as the transactions
occur or as provided in applicable rules. In its discretion, Paymentus may refuse to
process any transaction that is submitted in violation of its terms of use or to protect the
City, Users, itself or others from potentially illegal, fraudulent or harmful transactions.
5.7 Settlement
Paymentus together with a Paymentus Authorized Processor will forward the payment
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transactions, and when paid by User, the corresponding Paymentus Fee to the
appropriate organizations for settlement (other than the Paymentus Fee) directly to the
City ’s depository bank account previously designated by the City (“The City Bank
Account”). When the City pays the Paymentus Fee, Paymentus will invoice the City and
debit the fees from the City Bank Account on a monthly basis.
Paymentus together with the Paymentus Authorized Processor will continuously review
its settlement and direct debit processes for its simplicity and efficiencies. The City and
Paymentus agree to fully co-operate with each other if Paymentus were to change its
settlement and invoicing processes.
5.8 Reversed or Chargeback Transactions
With respect to all Reversed or Chargeback Transactions the City authorizes Paymentus
and Paymentus Authorized Processor (and/or the respective payment organizations) to
debit the City Bank Account for the Payment Amount and Paymentus will refund to the
payment organization for credit back to the User the corresponding Paymentus Fee, if
any.
Paymentus together with Paymentus Authorized Processor will continuously review its
processes for Reversed or Chargeback Transactions for simplicity and efficiencies. The
City and Paymentus agree to reasonably co-operate with each other if Paymentus
requires any change to its settlement and invoicing processes for these transactions.
6 General Conditions of Services
6.1 Service Reports
Paymentus will provide the City with reports summarizing use of the Services by Users
for a given reporting period.
6.2 User Adoption Communication by the City
The City will communicate the Services as a payment option to its customers wherever
the City usually communicates its other payment options.
The City will make the Services known or available to its customers by different means
of customer communication such as a) through bills, invoices and other notices; b) if
direct payments have been activated, by providing IVR and Web payment details on the
City ’s website including a “Pay Now” or similar link on a mutually agreed prominent
place on the City’s web site; c) if IVR payments have been activated, through the City ’s
general IVR/Phone system; and d) other channels deemed appropriate by the City.
Paymentus will provide the City with logos, graphics and other marketing materials for
the City’s use in its communications with its customers regarding the Services and/or
Paymentus.
6.3 Independent Contractor
Paymentus is an independent contractor. It is expressly acknowledged and understood
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by the parties that nothing contained in this agreement shall result in or be construed as
establishing an employment relationship. Paymentus shall be, and shall perform as, an
independent Contractor who agrees to use its best efforts to provide the said services on
behalf of the City. No agent, employee, or servant of Paymentus shall be, or shall be
deemed to be, the employee, agent or servant of the City. City is interested only in the
results obtained under this contract. The manner and means of conducting the work are
under the sole control of Paymentus. None of the benefits provided by City to its
employees including, but not limited to, workers' compensation insurance and
unemployment insurance, are available from City to the employees, agents or servants of
Paymentus. Paymentus shall be solely and entirely responsible for its acts and for the acts
of Paymentus’s agents, employees, servants and subcontractors during the performance
of this contract. Paymentus shall be responsible for all liability and loss in connection
with, and shall assume full responsibility for payment of all federal, state and local taxes
or contributions imposed or required under unemployment insurance, social security and
income tax law, with respect to Paymentus and Paymentus employees engaged in the
performance of the Services agreed to herein.
6.4 The City’s Responsibilities
In order for Paymentus to provide the Services outlined in the Agreement, the City
will co-operate with Paymentus by:
(i) Entering into (and authorizing Paymentus to do so on its behalf) all
applicable merchant processing, cash management, ACH origination, or kiosk
agreements, provided that the City is given notice of and approves any additional fees
associated with those agreements, and providing information and consents reasonably
requested in connection with the agreements.
(ii) Keeping throughout the duration of the Agreement during which
direct payments via the web is activated, a bill payment link connecting to the Paymentus
Platform at a prominent and mutually agreed location on the City’s website. If the IVR
channel is activated, the phone number for IVR payments will also be added to the web
site and as an option as part of the City’s general phone system.
(iii) Sharing User Adoption marketing as described in Section 5.2.
(iv) Launching the Service within 30 days of Paymentus completing the
system configuration and integrations, verification of proper system function, and
making the system available.
(v) Dedicating sufficient and properly trained personnel, to support the
implementation process and its use of the Services in compliance with all laws applicable
to its use of the Services.
(vi) Providing Paymentus with the file format specification currently
used to post payments to the billing systems to allow Paymentus to provide the City with
posting files for posting to the City’s billing systems.
(vii) Fully cooperating with Paymentus and securing the cooperation of
its software and service providers to timely provide the information required to integrate
with the City’s billing system.
(viii) Fully cooperating with Paymentus to integrate its systems with the
Paymentus Platform through the use of Paymentus’ APIs to enable The City’s access to
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the IPN, if selected.
7 Indemnification and Limitation of Liability
7.1 Paymentus Indemnification and Hold Harmless
Paymentus agrees to defend and indemnify the City and its directors, officers or
governing officials, or employees (collectively, the “The City Indemnitees”) from and
against all liabilities, demands, losses, damages, costs or expenses (including reasonable
attorney’s fees and costs), incurred by any the City Indemnitee arising from a claim or
demand brought by a third party to the extent the claim or demand alleges that the
Services provided under this Agreement infringe the intellectual property rights of the
third-party.
7.2 The City Indemnification and Hold Harmless
To the extent allowed by law, the City agrees to defend and indemnify Paymentus and
its directors, officers, or employees (collectively, the “Paymentus Indemnitees”) from
and against all liabilities, demands, losses, damages, costs or expenses (including
reasonable attorney’s fees and costs), incurred by any Paymentus Indemnitee arising
from a claim or demand brought by a third party to the extent the claim or demand
relates to the underlying relationship or obligations of the City and its Users.
7.3 Indemnification Procedure
The indemnified party will give the indemnifying party prompt written notice of any
claim for which indemnification is sought. The indemnifying party will have the right to
control the defense and settlement of any claim, provided that any settlement that
adversely affects the indemnified party requires the indemnified party’s consent, which
will not be unreasonably delayed or withheld. The indemnified party will not settle any
claim without the consent of the indemnifying party, which will not be unreasonably
delayed or withheld.
7.4 Warranty Disclaimer
Except as otherwise expressly set forth in this Agreement in Sections 2.3 and Exhibits
A and C, Paymentus disclaims all representations or warranties, express or implied,
made to the City or any other person, including without limitation, any warranties
regarding quality, suitability, merchantability, fitness, for a particular purpose or
otherwise of any services or any good provided incidental to the Services provided under
the Agreement.
7.5 Limitation of Liability
Notwithstanding the foregoing, Paymentus will not be liable for any lost profits, lost
savings or other special, indirect or consequential damages, even if it has been advised
of or could have foreseen the possibility of these damages. In no event will Paymentus
be liable for any losses or damages resulting from the acts, omissions or errors of third
parties or of the City or for providing agreements, instructions or information to Users
as instructed by the City. Paymentus’ total liability for damages for any and all actions
associated with the Agreement or the Services will in no event exceed (i) for an error or
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other action affecting the processing of one or more Payments, the amount of the
Paymentus Fee associated with each Payment, (ii) for other claims, the amount of the
Paymentus Fee (net of direct processing and other fees paid by Paymentus) paid to
Paymentus (“Net Fees”) in the six (6) months before the events given rise to the claim
or claims arising from the same circumstances; and (iii) in no event more than the lesser
of $1,000,000.00 or the Net Fees under the Agreement.
8 Term and Termination
8.1 Term
The term of the Agreement will commence on the Effective Date and continue for a
period of 7 (seven) years (“Initial Term”) from the Launch Date. The City has the option
to renew, at its discretion, for additional two-year terms. The City may choose not to
renew, without specifying a reason therefor. The City will notify Paymentus in writing
of its decision whether to renew at least 90 days prior to the expiration of each term.
8.2 Material Breach
A material breach of the Agreement will be cured within 30 business days (“Cure
Period”) after a party notifies the other of the breach. In the event the material breach
has not been cured within the Cure Period, the non-breaching party can terminate the
Agreement by providing the other party with a 30 business days’ notice.
8.3 Upon Termination
Upon termination of the Agreement, the parties agree to cooperate with one another to
ensure that all Payments are accounted for and all refundable transactions have been
completed. Upon termination, Paymentus will cease all Services being provided
hereunder unless otherwise directed agreed in writing.
The parties agree that on the termination of the provision of the services, Paymentus
shall, at the choice of the City, return all the personal data transferred including any data
storage media supplied to Paymentus, and the copies thereof to the City or shall destroy
all the personal data and certify to the City that it has done so, except for the limited
period needed to handle withdrawals and reversals, except that Paymentus may retain
data that will be written over in the normal course of business or that is required to be
retained under its document retention program, provided that such data shall continue to
be protected by the confidentiality provisions of this Agreement. Paymentus, in that
case, warrants that it will maintain the confidentiality of the personal data transferred
and will not actively process the personal data transferred anymore, except in connection
with withdrawals and reversals.
8. Use by Other Localities.
The parties agree that this Paymentus Master Services Agreement may be extended, with
the authorization of the City, to other public entities or public agencies or institutions of
the United States (“Other Public Customers”) to permit their use of the Paymentus
Services Agreement at the same prices and/or discounts and terms and conditions of this
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Paymentus Services Agreement. If any other public entity decides to use the Paymentus
Services Agreement, Paymentus must deal directly with that public entity concerning the
placement of orders, issuance of the purchase orders, contractual disputes, invoicing and
payment. The City acts only as the “Contracting Agent” for these public entities. It is
Paymentus’ responsibility to notify the public entities of the availability of this Paymentus
Master Services Agreement. Other public entities desiring to use this Paymentus
Agreement must make their own legal determination as to whether the use of this
Paymentus Services Agreement is consistent with their laws, regulations, and other
policies. Each public entity has the option of executing a separate contract with
Paymentus. Public entities may add terms and conditions required by statute, ordinances,
and regulations, to the extent that they do not conflict with the Paymentus Master
Services Agreement’s General Terms and Conditions. If, when preparing such a contract,
the general terms and conditions of the public entity are unacceptable to Paymentus,
Paymentus may withdrawal its extension of the award to that public entity. The City
shall not be held liable for any costs or damages incurred by another Public Customer as
a result of any award extended to that Other Public Customer by Paymentus. The City
retains the right to decline to offer or allow the use of this Paymentus Master Services
Agreement by other entities for any reason whatsoever.
9 Miscellaneous
9.1 Authorized Representative.
Each party will designate an individual to act as its representative, with the authority to
transmit instructions and receive information. The parties may from time to time designate
other individuals or change the individuals.
9.2 Notices.
All notices of any type hereunder will be in writing and sent to the addresses
indicated on the signature page, and except as otherwise provided in these Terms
and Conditions will be given by certified mail or a national courier or by hand
delivery.Notices will be considered to have been given or received on the date the
notice is physically received. Any party by giving notice in the manner set forth
herein may unilaterally change the name of the person to whom notice is to be
given or the address at which the notice is to be received.
9.3 Interpretation
It is the intent of the parties that no portion of the Agreement will be
interpreted more harshly against either of the parties as the drafter.
9.4 Governing Law
The Agreement will be governed by the laws of the state of Colorado,
without giving effect to any principles of conflicts of law.
9.5 Severability
If a word, sentence or paragraph herein is declared illegal, unenforceable,
or unconstitutional, that word, sentence or paragraph will be severed from the
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Agreement, and the Agreement will be read as if that word, sentence or paragraph
did not exist. If any of the provisions of this Agreement shall be held invalid,
illegal or unenforceable it shall not affect or impair the validity, legality or
enforceability of any other provision.
9.6 Attorney’s Fees.
Should any litigation arise concerning the Agreement between the parties hereto, the
parties agree to bear their own costs and attorney’s fees.
9.7 Confidentiality
All terms of this agreement, including Exhibits A, B and C are public under Colorado law.
However, certain other information furnished or disclosed by Paymentus or the City (the
“Disclosing Party”) to the other (the “Receiving Party”), outside of this agreement, and in
connection with the performance of their respective obligations under this Agreement may
contain or reflect confidential information with respect to the Disclosing party.
"Confidential Information" means all information outside of this agreement disclosed by
the Disclosing Party to the Receiving Party that is clearly marked or otherwise clearly
designated as “confidential” or that is or should reasonably be understood by the
Receiving Party to be confidential, relating to(i) the technology, products and services of
the Disclosing Party, including without limitation, technical data, trade secrets, know-
how, research, ideas or concepts, software, inventions, patent applications, techniques,
processes, developments, algorithms, formulas, designs, schematics, drawings,
engineering and hardware configuration information, and (ii) information relating to the
operations and business or financial plans and strategies of Disclosing Party, including
but not related to customers, customer lists, market, financial statements and projections,
product pricing and marketing, financial or other strategic business plans or information.
The Disclosing Party’s Confidential Information shall not include any information that:
(i) is or becomes part of the public domain through no act or omission of the other party;
(ii) the Receiving Party can demonstrate was in its lawful possession prior to the
disclosure and had not been obtained by it either directly or indirectly from anyone under
an obligation of confidence or from anyone who
to the knowledge of the Receiving Party after exercising due diligence owned an
obligation of confidentiality with regard to the information; (iii) the Receiving Party can
demonstrate was independently developed by the Receiving Party without access or
reference to the party’s Confidential Information; or (iv) the Receiving Party can
demonstrate was received from a third party without breach of any confidentiality
obligation.
To the extent permitted by public disclosure laws, the Receiving Party agrees to hold the
Disclosing Party’s Confidential Information in strict confidence, not to disclose such
Confidential Information to third parties not authorized by the Disclosing Party to receive
such Confidential Information, and not to use such Confidential Information for any
purpose except to perform its obligations under this Agreement. The foregoing prohibition
on disclosure of Confidential Information shall not apply to the extent Confidential
Information is required to be disclosed by the Receiving Party as a matter of law or by
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order of a court, provided that: (i) the Receiving Party uses reasonable efforts to provide
the Disclosing Party with prior notice of such obligation to disclose to allow the
Disclosing Party to obtaining a protective order from such disclosure; and (ii) the
Receiving Party only discloses that portion of Confidential Information which it
reasonably believes, based on the advice of counsel, is required to be disclosed.
Nothing contained in this Agreement shall restrict either party from the use of any
general ideas, concepts, know-how, methodologies, processes, technologies, algorithms
or techniques retained in the unaided mental impressions of such party's personnel relating
to the Services which either party, individually or jointly, develops or discloses under this
Agreement ("Residual Knowledge"); provided, however, that in doing so such party does
not (a) infringe the intellectual property rights of the other party or third parties who have
licensed or provided materials to the other party, or (b) breach its confidentiality
obligations under this Agreement.
9.8 Intellectual Property
In order that the City may promote the Services and Paymentus’ role in providing
the Services, Paymentus grants to the City a revocable, non-exclusive, royalty-free,
license to use Paymentus’ logo and other service marks (the “Paymentus Marks”) for this
purpose only. The City does not have any right, title, license or interest, express or implied
in and to any object code, software, hardware, trademarks, service mark, trade name,
formula, system, know-how, telephone number, telephone line, domain name, URL,
copyright image, text, script (including, without limitation, any script used by Paymentus
on the IVR or the Website) or other intellectual property right of Paymentus (“Paymentus
Intellectual Property”). All Paymentus Marks, Paymentus Intellectual Property, and the
Platform and all rights therein (other than rights expressly granted herein) and goodwill
pertain thereto belong exclusively to Paymentus.
9.9 Force Majeure
Paymentus will be excused from performing the Services to the extent its
performance is delayed, impaired or rendered impossible by acts of God or other events
that are beyond Paymentus’ reasonable control and without its fault or judgment,
including without limitation, natural disasters, war, terrorist acts, riots, acts of a
governmental entity (in a sovereign or contractual capacity), fire, storms, quarantine
restrictions, floods, explosions, labor strikes, labor walk-outs, extra-ordinary losses
utilities (including telecommunications services), external computer “hacker” attacks,
and/or delays of common carrier.
9.10 Entire Agreement
This written Agreement including the Exhibits shall constitute the contract
between the parties and supersedes or incorporates any prior written and oral agreements
of the parties and may only be changed by an agreement in writing signed by the
authorized representative of each of the parties.
The parties acknowledge and understand that there are no conditions or limitations to
this understanding except those as contained herein at the time of the execution hereof and
that after execution no alteration, change or modification shall be made except upon a
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writing signed by the parties.
Any modifications to the Scope of Work in Exhibit A shall be mutually agreed
upon in writing between the parties and will be governed by the terms and conditions of this
Agreement. Paymentus shall not be obligated to provide the work required by a change in
Exhibit A until such time as a change order is agreed to in writing by both Paymentus and
the City. Any work outside the scope of the agreement and done so prior to the mutual
agreement in writing of a change order is done at Paymentus’ sole expense. Minor changes
associated with the finalization and clarification of requirements will not result in additional
expense to the City, nor will substantially equal substitutions.
9.11 Counterparts
The Agreement and any amendment or other document related to the Agreement
may be executed in counterparts, each of which will constitute an original, and all of which
will constitute one agreement. The Agreement and any amendment or other document
related to the Agreement may be signed electronically. A photographic or facsimile copy
of the signature evidencing a party’s execution of the Agreement will be effective as an
original signature.
9.12 Waiver
The waiver by a party of any term, covenant, or condition hereof shall not operate
as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
condition of this Agreement can be waived except by the written consent of each of the
parties, and forbearance or indulgence by either party in any regard whatsoever shall not
constitute a waiver of any term, covenant, or condition to be performed by the other party
to which the same may apply and, until complete performance by such party of said term,
covenant or condition, other party shall be entitled to invoke any remedy available to it under
this Agreement or by law despite any such forbearance or indulgence.
10. Notice
Any written notices as called for herein may be hand delivered or mailed by certified
mail return receipt or sent by a nationally recognized overnight courier and directed to the
respective persons and/or addresses listed herein:
Paymentus Corporation City of Aspen
Address: Same as on page 1 Attention: Tyler Christoff
Directed to the CEO, with a copy 130 S. Galena Street
Directed to the Legal Department Aspen, Colorado 81611
At the same address. christoff@cityofaspen.com
11. Paymentus Insurance
Paymentus agrees to procure and maintain, at its own expense, a policy or policies of
insurance sufficient to insure against all liability, claims, demands, and other obligations of
Paymentus pursuant to this Agreement. Such insurance shall be in addition to any other
insurance requirementsimposed by this contract or by law. Paymentus shall not be relieved
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of any liability, claims, demands, or other obligations assumed pursuant to Section 6
(Indemnification) above by reason of its failure to procure or maintain insurance, or by
reason of its failure to procure or maintain insurance in sufficient amounts, duration, or
types.
(a) Paymentus shall procure and maintain and shall cause any
subcontractor of Paymentus to procure and maintain, the minimum insurance coverages
listed below. Such coverages shall be procured and maintained with reputed insurers/
reinsurers. All coverages shall be continuously maintained to cover all liability, claims,
demands, and other obligations of Paymentus pursuant to Section 6 (Indemnification)
above. In the case of any claims-made policy, the necessary retroactive dates and extended
reporting periods shall be procured to maintain such continuous coverage.
(i) Workers’ Compensation insurance (only applicable
for the service performed in US) to cover obligations imposed by applicable laws for any
employee engaged in the performance of work under this contract, and Employers' Liability
insurance (only applicable for the service performed in US) with minimum limits of FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) - policy limit, and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence
of qualified self-insured status may be substituted for the Workers' Compensation
requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum
combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence
and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be
applicable to all premises and operations. The policy shall include coverage for bodily
injury, broad form property damage (including completed operations), personal injury
(including coverage for contractual and employee acts), blanket contractual, independent
contractors, products, and completed operations. The policy shall contain a severability of
interests provision.
(iii) Comprehensive Automobile Liability insurance (only
applicable for the service performed in US) with minimum combined single limits for
bodily injury and property damage of not less than ONE MILLION DOLLARS
($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00)
aggregate with respect to each Paymentus's owned, hired and non-owned vehicles assigned
to or used in performance of the Scope of Work. The policy shall contain a severability of
interests provision. If Paymentus has no owned automobiles, the requirements of this
Section shall be met by each employee of Paymentus providing services to the City under
this contract.
(iv) Paymentus Liability insurance with the minimum limits of
ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS
($1,000,000) aggregate.
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(b) The policy or policies required above (except for Workers
Compensation, Employer’s Liability and Paymentus Liability) shall be endorsed to include
the City and the City's officers and employees as additional insureds. Every policy required
above shall be primary insurance, and any insurance carried by the City, its officers or
employees, or carried by or provided through any insurance pool of the City, shall be excess
and not contributory insurance to that provided by Paymentus. No additional insured
endorsement to the policy required above shall contain any exclusion for bodily injury or
property damage arising from completed operations. Paymentus shall be solely responsible
for any deductible losses under any policy required above.
(c) The certificate of insurance provided to the City shall be completed
by Paymentus's insurance agent as evidence that policies providing the required coverages,
conditions, and minimum limits are in full force and effect, that Paymentus confirm that
the coverages afforded under the policies shall not be canceled, terminated or materially
changed until at least thirty (30) days prior written notice has been given to the City.
(d) Failure on the part of Paymentus to procure or maintain policies
providing the required coverages, conditions, and minimum limits shall constitute a material
breach of contract upon which after providing 30 days prior notice to Paymentus, City may
at its discretion procure or renew any such policy or any extended reporting period thereto
and may pay any and all premiums in connection therewith, and all monies so paid by
City shall be repaid by Paymentus to City upon demand, or City may offset the cost of the
premiums against monies due to Paymentus from City.
(e) The parties hereto understand and agree that City is relying on, and
does not waive or intend to waive by any provision of this contract, the monetary limitations
(presently $350,000.00 per person and $990,000 per occurrence) or any other rights,
immunities, and protections provided by the Colorado Governmental Immunity Act,
Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available
to City, its officers, or its employees.
12. Successors and Assigns
This Agreement and all of the covenants hereof shall inure to the benefit of and
be binding upon the City and Paymentus respectively and their agents, representatives,
employee, successors, assigns and legal representatives. Neither the City nor Paymentus
shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party, which shall not be unreasonably delayed
or withheld.
13. No Third Party Beneficiaries
This Agreement does not and shall not be deemed or construed to confer upon or grant
to any third party or parties, except to parties to whom Paymentus or City may assign
this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or
Paymentus because of any breach hereof or because of any of the terms, covenants,
agreements or conditions herein contained.
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14. System and Network Security, Access, Software and Tools
(a) Security Procedures and practices
Paymentus is required to implement and maintain security procedures and
practices that protect City owned data and personal identifying information (PII) from
unauthorized access, use, modification, disclosure, or destruction. Paymentus shall use
industry-standard best practices and up to date security tools, technologies and procedures
to protect such data and PII. Paymentus shall prevent the transfer of malicious software
that could infect City computers, systems, or networks to City computers via the
connection from the Paymentus’s system. Paymentus represents that its security measures
do, and will at all times, comply with any security requirements outlined in this
Agreement.
(b) Data Security Breaches and Reporting Procedures
The City is required by Colorado Statutes (CRS 6-1-716) to notify its residents of
a Data Security Breach involving their personal identifying information. Paymentus is
under a strict obligation to notify the City of a Data Security Breach within 24 hours of
the Paymentus becoming aware of a breach of their systems. In the event of a breach
Paymentus is required to provide those details that are known about the breach to the City.
Such details include, but are not limited to the following:
• How the breach was stopped and access to the system removed.
• The date and time, estimated date and time, or estimated
date range of the security breach;
• A description of all the information that was acquired or
potentially acquired as part of the security breach;
• What format the information would have been in and how
likely would it be that information could become readable by whomever perpetrated the
breach.
The Paymentus notification of the City is not to be delayed in order to complete a
forensics investigation or because further research might be needed. Additional
information that may be developed later will be shared with the City as it becomes
available. Paymentus agrees to provide any reasonable assistance as is required by the
City to facilitate the handling of any Data Security Breach in an expeditious and compliant
manner. Paymentus will provide the City timely updates of the investigation and process.
In the event of a Data Security Breach at City’s location, City will alert Paymentus
about the incident within 24 hours of the City becoming aware of the breach. The City
will work with Paymentus to determine if any additional security controls are to be
implemented.
This provision does not preclude the City from seeking a remedy via court in the State of
Colorado.
(c) Resolution of disputes regarding Personal Data
In the event of a dispute or claim concerning the processing of Personal Data against either
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or both parties, the Parties will inform each other about any such disputes or claims, and
will cooperate with a view to settling them amicably in a timely fashion.
Each Party shall abide by a decision of a competent court in the State of Colorado.
15. Additional Terms.
a. Non-Discrimination. No discrimination because of race, color,
creed, sex, marital status, affectional or sexual orientation, family responsibility, national
origin, ancestry, handicap, or religion shall be made in the employment of persons to
perform services under this contract. Paymentus agrees to meet all of the requirements of
City's municipal code, Section 15.04.570, pertaining to non-discrimination in employment.
b. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of
Interest.
i. Paymentus warrants that no person or selling agency has
been employed or retained to solicit or secure this Contract upon an agreement or
understanding for a commission, percentage, brokerage, or contingent fee, excepting bona
fide employees or bona fide established commercial or selling agencies maintained by
Paymentus for the purpose of securing business.
ii. Paymentus agrees not to give any employee of the City a
gratuity or any offer of employment in connection with any decision, approval,
disapproval, recommendation, preparation of any part of a program requirement or a
purchase request, influencing the content of any specification or procurement standard,
rendering advice, investigation, auditing, or in any other advisory capacity in any
proceeding or application, request for ruling, determination, claim or controversy, or other
particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore.
iii. In addition to other remedies it may have for breach of the
prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City
shall have the right to:
1. Cancel this Purchase Agreement without any liability by the
City ;
2. Debar or suspend the offending parties from being a
Paymentus, contractor or subcontractor under City contracts;
3. Deduct from the contract price or consideration, or
otherwise recover, the value of anything transferred or received by Paymentus; and
4. Recover such value from the offending parties.
c. Governing Law. This Agreement shall be governed by the laws of the State
of Colorado as from time to time in effect. Venue is agreed to be exclusively in the courts
of Pitkin County, Colorado.
d. Taxes, VAT, & Service Tax. Paymentus and the City shall each bear sole
responsibility for all US taxes, assessments, and other real property-related levies or
property taxes on its owned property. The City shall be responsible for Service tax, GST,
or Value Added Tax or similar taxes applicable on the sale of services or goods.
16. Records to be Kept by Paymentus
Paymentus shall make available to the City if requested, true and complete records,
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which support billing statements, reports, deliverables, performance and all other related
documentation to this agreement (the Documentation). The City shall have the right to
audit all activities in connection with the Services that are performed under this Agreement
provided that such audits are conducted (i) no more than one time a year, (ii) in accordance
with the requirements of Paymentus’ security policies (which shall be provided to Client
prior to the Audit) and (iii) in a manner that will not unreasonably interfere with
Paymentus’ business, (iv) and subject to terms of confidentiality at least as restrictive as
those contained herein. Paymentus will provide reasonable access to Paymentus
personnel, and to data and records, for the purpose of performing audits and inspections
to verify: (i) the accuracy of Paymentus' charges and invoices; and (ii) compliance with
this Contract. Paymentus will provide to such auditors and representatives such assistance,
as they reasonably require, and shall not unreasonably restrict the scope of any such audit.
Paymentus agrees that it will keep and preserve for at least seven (7) years all documents
related to the Agreement which are routinely prepared, collected or compiled by Paymentus
during the performance of this Agreement.
17. Waiver of Presumption
This Agreement was negotiated and reviewed through the mutual efforts of the
parties hereto and the parties agree that no construction shall be made or presumption shall
arise for or against either party based on any alleged unequal status of the parties in the
negotiation, review or drafting of the Agreement.
18. Certification Regarding Debarment, Suspension, Ineligibility, and
Voluntary Exclusion Paymentus certifies, by acceptance of this Agreement, that neither
it nor its principals is presently debarred, suspended, proposed for debarment, declared
ineligible or voluntarily excluded from participation in any transaction with a Federal or
State department or agency. It further certifies that prior to submitting its Bid that it
did include this clause without modification in all lower tier transactions, solicitations,
proposals, contracts and subcontracts. In the event that Paymentus or any lower tier
participant was unable to certify to the statement, an explanation was attached to this
agreement and was determined by the City to be satisfactory to the City.
19. Electronic Signatures and Electronic Records
This Agreement and any amendments hereto may be executed in several
counterparts, each of which shall be deemed an original, and all of which together shall
constitute one agreement binding on the Parties, notwithstanding the possible event that
all Parties may not have signed the same counterpart. Furthermore, each Party consents to
the use of electronic signatures by either Party. Documents requiring a signature
hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties
agree not to deny the legal effect or enforceability of the Agreement solely because it is
in electronic form or because an electronic record was used in its formation. The Parties
agree not to object to the admissibility of the Agreement in the form of an electronic
record, or a paper copy of an electronic documents, or a paper copy of a document bearing
an electronic signature, on the grounds that it is an electronic record or electronic signature
or that it is not in its original form or is not an original.
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20. Execution of Agreement by City
This Agreement shall be binding upon all parties hereto and their respective heirs,
executors, administrators, successors, and assigns. Notwithstanding anything to the contrary
contained herein, this Agreement shall not be binding upon the City unless duly executed
by the City Manager of the City of Aspen (or a duly authorized official in his or her
absence).
27. Authorized Representative. The undersigned representative of
Paymentus Corporation, as an inducement to the City to execute this Agreement,
represents that he/she is an authorized representative of Paymentus for the purposes of
executing this Agreement and that he/she has full and complete authority to enter into this
Agreement for the terms and conditions specified herein.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be
executed by their duly authorized officials, this Agreement of which shall be deemed an
original on the date first written above.
CITY OF ASPEN, COLORADO: PAYMENTUS CORPORATION:
[Signature] [Signature]
By:_____________________________ By:____________________________
[Name]
Title: Utilities Director
Title: SVP
Date: Date:
Approved as to form:
City Attorney’s Office
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Jerry Portocalis
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EXHIBIT A:
SCOPE OF WORK
This Scope of Work is issued pursuant to and in accordance with all of the terms of the Master Services Agreement
(“Agreement”) effective as of the date of the City’s Notice to Proceed, between the City of Aspen, Colorado with a
principal place of business located at 130 Galena Street, Aspen, Colorado 81611 (“Client”) and Paymentus Corporation,
a Delaware Corporation with a principal place of business located at 13024 Ballantyne Corporate Park, Charlotte, North
Carolina 28277 (“Vendor” or “Paymentus). Client and Paymentus are hereinafter collectively referred to as the
“Parties”). Capitalized terms in this SOW shall have the same meanings ascribed to them in the Agreement. In the
event of a conflict between the terms of this SOW and those of the Agreement, the terms in the Agreement shall prevail.
1. PROJECT CONTACTS
a. Client Authorized Representatives. The Primary contact for Client that is responsible for
Acceptance/rejection of the project deliverables is:
NAME: Lee Ledesma
TITLE: Project Manager (will serve as a liaison, ensuring that
communications are timely and accurate, activity is coordinated
and any issues are promptly dealt with seamlessly)
TELEPHONE NO. 970-429-1975
EMAIL ADDRESS: Lee.ledesma@cityofaspen.com
ADDRESS: 130 South Galena St., Aspen, CO 81611
NAME: Karen Harrington
TITLE: Technical Implementation Manager (will lead, manage and
coordinate Client's implementation from project kick-off to go-
live and customer training. The TIM is responsible for overall
contract coordination and is your primary point of contact for
technical items. The TIM will communicate directly with Client to
manage expectations and deliver services on time and on budget.
The TIM will manage ongoing operational requirements for Client
such as change requests, configuration updates and technical and
operational inquiries.
TELEPHONE NO. 970-429-2856
EMAIL ADDRESS: Karen.harrington@cityofaspen.com
ADDRESS: 130 S. Galena, Aspen, CO 81611
b. Paymentus Authorized Representative. The Primary contact for Paymentus that is responsible for the Services
to be performed under this SOW, and to receive notices from Paymentus under this SOW:
NAME: Christine Miles
TITLE: Technical Implementation Manager
TELEPHONE NO. (540) 739-2054
EMAIL ADDRESS: cmiles@paymentus.com
ADDRESS: 13024 Ballantyne Corporate Place, Suite 450, Charlotte, NC 28277
Should the above contacts change, the City or Paymentus will let the other know within 10 business days.
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2. DESCRIPTION OF THE WORK.
Paymentus will assure that its system will accurately and consistently provide the functionalities described below in
Table 1 throughout the term of this contract, unless the parties otherwise agree in a written Amendment to this
Agreement. The approach to this work is further described below Table 1.
Table 1: System Requirements
Number
Requirement Description
OOB,
Config,
Coding, Not
Available
Notes/Comments
Part 1: Individual Utility Customer
Requirements
As an individual with a utility
customer account, I need to be able
to:
1
Access a secure, easy to use portal
for online bill payments
OOB We are focused on adoption and usability. The
Paymentus online payment channel is easy to
navigate and simple to understand with
automated technologies to help prevent user
errors and ensure absolute security and privacy.
With enrolled and non-enrolled user
experiences, this convenient payment access
maximizes customer satisfaction and
confidence while powerful authorization tools
collect payment information. Customers find
our systems easy to use as they follow prompts
and step-by-step instructions supplemented
with pictures to help the user locate necessary
pay account information.
We look forward to the opportunity to
demonstrate functionality and intuitive
navigation for you during a presentation with
your team.
2
Easily identify the portal as the City
of Aspen utility payment portal,
through branding of the site
OOB Our user interfaces (UIs) will be tailored to
match your branding. This includes logo, color,
font, icons, fields, field names and help text to
ensure it aligns with the look-and-feel and tone
of other
content on your website.
3
Receive email notifications of bills due OOB Our standard offering includes payment
reminder and bill ready notifications that can be
delivered via email, text and IVR call based on
the
customer’s preference.
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4
Via a link in an email
notification of bills due, be
taken to the portal to pay my
bill.
OOB The bill ready notification includes a link back to the
portal to view and pay the bill.
Additionally, we offer a secure PDF delivery for
eBills. With this offering, your customers will
receive an email with an attached PDF bill that
displays the account number, amount due, due
date, masked payment method and the field
where the customer can enter the amount and
make a payment all within the secure PDF
attachment.
5
Access an electronic,
printable invoice for
payments due and a
printable statement of
payments made.
OOB We provide online access to 24-months of billing and
payment history ─ all channels and methods.
Customers can search, download and print a detail
view of all past payments and current payments
due.
6
Register for the payment site
using a City of Aspen
designated authentication
method such as a customer ID
#
OOB The City will define the access rights and
authentication protocol used for your customers and
staff. For most clients, this includes using the account
number as the primary data point with the option to
add a secondary (or more) element for
authentication.
We will work with your team during implementation
to establish authentication capabilities (including
options for single sign-on) that meet your business
and technical requirements. We use your original
source of record for authentication, such as a
customer ID #.
7 Access my, and only
my, utility customer
account information
OOB Customers must be authenticated to gain access
to the system and their account information.
8
Complete one time-
payments on specified
non-utility bill items
OOB Payers have the option to make a one-time
payment (immediate or future dated). This
includes options for non-utility bill items as
defined by the City.
9 Access current and historical
bills up to 24 months for my
customer ID
OOB As shared, Paymentus will provide online access
to 24-months of billing and payment history.
10
View current balance on
account
OOB Via the Customer Portal, customers will have a view
of their account(s) information, including the current
balance provided by the City via daily file
or a real-time connection with your Munis system.
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11
View account transaction history OOB In the Customer Portal, customers will have a
unified view of all past transactions, including bills
and payments from all channels.
12
Schedule a one-time payment, with or
without registering for an online
account
OOB Paymentus offers both a guest (unregistered) and
registered user experience. The guest user
experience does not require pre-registration or a
login and provides a way for your customers to
make a one-time payment quickly and easily. This
is based on the original source of record as well
such as a Customer ID #.
13
Schedule payments for multiple months
in the future (for instance, to pay when I
plan to be out of town)
OOB Paymentus provides multiple options for
scheduled payments including a one-time future-
dated payment, defined number of payments for
a future date and AutoPay.
When entering the payment, the customer or City
staff can choose to pay the Amount Due or enter
a specific amount to pay and then select to Pay
Later, which brings up a calendar widget that
allows the user to choose an available date. The
available pay dates and how far into the future a
payment can be scheduled will be defined by the
City.
14
Enroll/Dis-enroll in Auto-pay OOB Our AutoPay solution allows your customers to
setup worry-free automatic payments. It is one of
the simplest ways to ensure that bills are paid on
time. Enrollment is simple and customers can dis-
enroll whenever they choose.
Customers choose the frequency (monthly, semi-
monthly, weekly, etc.) and method of payment
(credit card, debit card and ACH) from the
available options that you define. The service
includes management of enrollments, de-
enrollments, notifications, schedule changes,
payment method changes, returned payments,
NOCs and card updater services. Additionally, City
staff can be given permission to set-up scheduled
payments on behalf of a customer using the Agent
Dashboard.
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The amount due will be updated automatically
each month using information provided by the
City. Once completed, we will provide payment
updates via a daily file or real-time connection
with your billing system.
Most importantly, we make sure the information
is kept secure within the Paymentus PCI-certified
platform that incorporates encryption and
tokenization technologies so that payment
information is never captured or stored in the City
systems or the City-accessible databases.
15
Select and modify payment type OOB Customers (and City staff if you allow) have the
ability to save payment methods to a secure
digital wallet. Saved payment methods can then
be used for one-time or recurring payments in any
channel. Customers are prompted to use a
payment method already saved in their wallet or
asked if they want to save a newly-entered
payment method.
The Paymentus Customer Portal provides your
customers with direct online access to not only
setup and modify scheduled payments when they
choose, but they can also modify profile and
contact information, user preferences, paper
suppression and more.
16
Utilize a "shopping cart functionality" in
order to select multiple items for
payment
OOB Our platform supports “shopping cart
functionality” with the ability to pay multiple
account/bills with a single transaction.
The customer experience allows for the
presentment of billing data for multiple accounts
and the ability to pay multiple accounts in a single
transaction flow.
Customers simply choose, by clicking the
checkbox, which of the accounts/billing
statements linked to their profile that they want
to view and/or pay.
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17
Select a paperless billing option OOB With Paymentus, there is no complicated
enrollment or activation process so it’s easy for
customers to opt-in for paperless billing whenever
they choose.
We provide your customers with several options
to view their bill including at the City’s website,
through a secure, password protected PDF via
email, via summary in a text and in the wallet app
on their mobile device.
We will also provide paperless enrollment and de-
enrollment updates to both the City and
DataProse (or your chosen print vendor) as
required.
18
Chose specific payment dates for
payments
OOB Due the inherent flexibility of our platform,
Paymentus configures the scheduled payment
options according to your requirements.
Customers can choose to pay on the due date or a
different/specific date. They can also choose the
frequency (monthly, semi-monthly, weekly, etc.)
of payment and "Start" and "Stop" dates from the
available options that you define.
19
Access contact info for City Utility Billing
staff from within the system, including
contact email address and phone
number
OOB We can support this a number of ways including,
but not limited to the following:
1. Leverage the functionality available in our
chat and feedback/review offerings
2. Provide City contact details on Paymentus-
hosted pages
3. Link to an existing City Questions or Contact
Us page
4. Leverage our functionality to create a
Contact Us web form and capture
customer-entered content that can be
made available to City agents via the Agent
Dashboard and/or via form-to-email
delivery
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20
Communicate back and forth with
Billing staff from within the system,
with a record of the communication
staying within my account record.
OOB Paymentus provides a secure chat service that
integrates directly with your website. Your
customers can chat directly with City staff in real-
time without a call into your call center. The
Paymentus chatbot uses machine
learning/artificial intelligence to improve the
speed and quality of every interaction providing a
personalized experience.
All communications to customers are tracked and
logged. Your staff users can search and view the
status of outbound notifications from the
notification reports available in the Agent
Dashboard.
21
Make payments via credit cards or
electronic checks
OOB Paymentus supports the full array of payment
methods from legacy methods to unique
advanced payment methods including any or all of
the following:
• Visa • PayPal
• MasterCard • PayPal Credit
• Discover • Venmo
• American Express • Amazon Pay
• ACH/eCheck • And more…
• Cash
22
Make payments via Zelle (Optional) Not Available We are looking to add this functionality to our
roadmap. As shared above, Paymentus currently
supports multiple digital wallet solutions
including:
• PayPal, the most used digital wallet in the
world with 100 million+ in U.S. and over
300 million active users worldwide.
• Venmo has 27 million active users and is
growing 80% YOY. This 'social' payment
method has a strong network effect that is
accelerating utilization.
• Amazon Pay, which uses the consumer base
of Amazon.com and is growing in
popularity.
• We are also currently working to add Apple
Pay and Google Pay to the growing list of
payment options.
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These digital wallet payments are offered at the
same cost and integration as legacy methods
through Paymentus because we uniquely
incorporate them into our platform.
23
See a confirmation screen, with an opt
out, prior to finalizing a payment
OOB On the Review and Confirm screen, the customer
will have a view of the payment, including the
amount paid, the service fee (if applicable) and
the total amount of the transaction as well as any
disclosure the City may want to include. At this
point the customer can opt out (close the window,
navigate to another page or simply not proceed),
choose Back to modify the payment or click Pay to
complete the payment.
24
Make full or partial payments against
selected bills
OOB Our solution will allow the customer to make a
payment that is different (greater than/less than)
than the amount due. The options available to the
customer will be defined based on the City's
specific business rules, set at a system- or
account-level.
25
Make an overpayment (rolling credit
balance)
OOB As shared above, customers can pay more than
the current amount due based on the City's
business rules, set at a system- or account-level.
26
Cancel or modify a scheduled payment
prior to scheduled date
OOB The customer (or other authorized user from the
City) have the ability to modify or cancel a
scheduled payment anytime up until the close of
business on the date it is scheduled to be
processed.
27
Register to use multiple payment
methods by providing necessary
payment details
OOB As mentioned, customers (and City staff if you
allow) have the ability to save payment methods
to a secure digital wallet. Saved payment methods
can then be used for one-time or recurring
payments in any channel. Customers are
prompted to use a payment method already
saved in their wallet or asked if they want to save
a newly-entered payment method.
28
Set default payment type and payment
acccount for future payments
OOB As part of the guest experience, customers making
a one-time payment may save that payment
method to be used for future payments. As part of
the enrolled experience, customers may set up a
wallet with multiple pay types and designate one
as the default.
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29
Complete one payment using multiple
payment methods
OOB Using multiple payment methods to pay one
bill/account is a standard capability for all of our
user experiences.
30
Complete multiple payments using
multiple payment methods
OOB Using multiple payment methods to pay multiple
bills/accounts is a standard capability for all of our
user experiences.
31
Receive 1) automatic 2) scheduled and
3) one-off custom emails, including
emails with attachments from system
(Please reference Appendix B for list of
required notifications)
OOB Paymentus provides an array of standard
notifications and reminders delivered to
customers based on their preference for email,
text or IVR. All of the messages that can be
configured for the City specifications (wording and
branding).
Additionally, we offer a powerful Enterprise
Communications Manager (ECM) tool to send
automated communications to customers therein
helping our clients to alleviate the time and
expense associated with sending out paper
communication or having CSRs make outbound
calls.
With ECM, messages can be sent to all customers
or targeted to specific customers depending on
the need. Therefore, whether notifying customers
about a service outage, promoting new payment
options or encouraging late payers to sign up for
AutoPay, you have a powerful tool at your
fingertips.
32
In the event of a failed payment, view
of notification of why the payment
failed
OOB If a payment fails/is not authorized, our solution
will notify the customer in session with a City-
approved reason code and prompt them for an
alternative method of payment. If it is an AutoPay
or scheduled payment, the customer will be
notified via email with the associated reason code
that the payment was not processed.
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Part 2: Users responsible for managing
multiple accounts
OOB, Config,
Coding, Not
Available
Notes/Comments
As a property manager that manages
multiple properties with utilities
accounts, I need to be able to:
33
Perform all of the tasks mentioned
above under Part 1 for the multiple
individual utility customer account I am
managing, in addition to performing the
tasks mentioned below.
OOB All of the functionality listed in Part 1 is
supported. We will work with the City to define
the account hierarchies and permissions available.
34
Link multiple individual utility accounts
under one registered online portal user
account, for the purpose of managing
such accounts under my online user
account
OOB With the Paymentus platform, multiple accounts
can be linked under a single profile. Our account
hub with activity tracker will not only display the
accounts the customer/property manager has, but
also show bills, payments, messages and other
information that is linked to each account.
35
During a single session, set up and
schedule multiple payments on multiple
service accounts for individual utility
customer account holders I manage, for
the current and for future billing periods
OOB The customer experience allows for the
presentment of billing data for multiple accounts
and the ability to pay multiple accounts in a single
transaction flow.
Users simply choose, by clicking the checkbox,
which of the accounts linked to their profile that
they want to view and/or pay.
The system can be configured to process multiple
transactions in a single session or process one
transaction paid to multiple accounts. The user
experience is dictated by the business decisions of
the City.
36
View a list of which utility customer
accounts are paid or to be paid, on what
dates, by what methods, and in what
amounts
OOB Our account hub with activity tracker will display
accounts and account details including past and
present bills and payments.
37
Add, modify or remove one or more
utility customer accounts from my
portal account, without interrupting
linkages to remaining linked accounts.
OOB Customer utility accounts can be added or
removed from a customer profile by a customer
without interrupting linkages to remaining linked
accounts. Rules will be handled in accordance with
your hierarchy from most specific to most generic
rules.
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Number Requirement Description OOB, Config,
Coding, Not
Available
Notes
Part 3: Staff & Administrative Functions
As a Utility Billing Staff member, I need
to be able to perform the following,
depending on my specific roles and
permissions:
38
Access an administrative portal with
secure, individual-specific access
OOB Role-based security is a pillar of our solution.
Users must be authenticated to gain access to the
system. All access and permissions are assigned
based on legitimate business need using role- and
permission-based controls.
With the Agent Dashboard, designated
administrators from the City will set up new users
and control access using City-defined roles and
permissions. Specific functionalities available to
each role and even individual user are defined
based on your business requirements.
39
Manage external and internal users and
users groups, including adding, viewing,
modifying, and deleting users and user
groups
OOB Paymentus will assist the City in setting up user
groups and users during implementation. Each
function in the Agent Dashboard is selectable or
de-selectable as a permission. The City will assign
internal administrators who can add/delete/edit
users.
40
Manage roles and permissions for
internal and external users and user
groups
OOB The Paymentus project team will coordinate with
the City to define the roles with specified
capabilities and access rights. Single sign-on using
existing City roles can be mapped and used as
well.
The user management tool of the Agent
Dashboard is a configurable permission-based
model that allows the City to define the exact
features to which a user group or individual user
will have access.
We have many clients with multiple user types
and divisions who benefit from the flexibility of
this tool and the ability to accommodate multiple
groups and roles with different access rights.
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41
Add, view, modify and delete
information in user account fields (ex.
service address and account name)
OOB Depending on your business rules, designated
users can be granted the permission to add, view,
modify and remove information in user account
fields.
42
Access help resources from within the
system
OOB Paymentus provides training materials, an online
knowledge base that includes video how-to’s and
on-demand support via call center and client
services helpdesks.
Moreover, we are in the process of expanding and
enhancing our offering with web-based video and
content that can be accessed on demand and
tailored to the user role (e.g., consumer, CSR,
technical staff).
43
Access high quality training & support
materials
OOB The Paymentus online payment channel is easy to
navigate and simple to understand with simple
flows, personalized information, FAQs and help
text and prompts when needed.
Our focus and dedication is in offering an intuitive
and reliable service that is not heavily dependent
on human intervention (CSR support).
At no additional cost, the Paymentus team will
conduct training sessions during implementation
for both your technical team and your Utility
Billing staff. After implementation, additional
training can easily be schedule at no additional
cost for refreshers or new employees.
This includes documentation, quick reference
guides and training manuals for the Paymentus
system. Our primary goal is to ensure that all City
staff are extremely comfortable with the payment
platform, so that they can confidently support
your customers.
We also provide an internal, web-based test
environment that the City can use during the life
of the contract for training and testing purposes.
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44
Login as an external online account
user, to assist in resolving issues
OOB The City staff can view the customer's account/bill
concurrently with the customer via the Agent
Dashboard. The service also gives the staff
member the ability to login to a test account to
assist a customer with any UI or functionality
questions.
45
Create, view, modify, and delete email
and letter notification templates (See
required notifications listed in Appendix
B)
OOB In addition to standard alerts, which are
automatically sent according to customer
preferences, Paymentus offers more robust
capabilities through our Enterprise
Communications Manager (ECM) tool. With ECM,
messages can be sent to all customers or targeted
to specific customers depending on the need.
With this tool, the City can create and modify
message content, assign targets through your
customer database and define the dates/times for
delivery. The messages can be added by
designated City users via the Agent Dashboard or
can be provided to the Paymentus support team
to add on your behalf. Maintenance settings
include a free form or dropdown of approved
messaging.
46
Create, view, modify, and delete
queries and reports, using any set of
fields within the system. This includes
but is not limited to queries and
reports on an individual account,
multiple accounts, and summaries of
multiple accounts.
OOB With the Agent Dashboard, Paymentus provides
access to real-time payment transaction
information from all channels. The Agent
Dashboard is also the single access point for
authorized City users to run summary- and
transaction-level reports on demand.
All of our reports are provided in a modular
technology environment, so various City users can
choose the reports that they require.
The City staff also have the ability to search and
export data based on the following criteria:
• Confirmation number
• Account number
• Payment date or date range
• Payment status
• Payment amount range
• Payment method
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• Payment channel
• Customer name
• User ID
• Email address
• City-defined fields
47
Create, view, modify and delete reports
in support of financial auditing and
financial management, including but
not limited to reports on successful,
modified, deleted and failed
transactions
OOB The Paymentus platform provides a
comprehensive suite of reports that are populated
with data pulled in real-time from Paymentus
databases. Authorized City users have the ability
to run summary- and transaction-level reports on
demand or schedule reports to run at defined
intervals. Report detail can also be exported via
CSV for further analysis and customization in Excel
or any other data management tool.
Standard reporting structures include the
following:
• Report totals sub-tab: Transactions and
revenue totals with just one click
• Payments made today, last 7 days, last 30
days and custom date range (includes
reversed/cancelled payments)
• Deposits and returns
• Paper suppression
• Bill lifecycle and late payers
• Outbound communications
• CIF and posting files
• Digital wallet enrollment
• Pay by PDF and text enrollment
• Users
As standard protocol, we will work with you to
consolidate or segment information based on the
service type, customer type and any other
classifications that you define.
Because ALL payments avenues are native to our
platform and we do not employ third parties to
round out our solution, the City can see every
payment, through every channel, via every
method in one place.
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With more than 1,800 clients, we are confident
we have the reports to meet your business needs.
48
Generate a accurate, configured
financial export report for import into
MUNIS.
OOB We deliver payment updates with the format and
frequency you want. Paymentus integrated our
platform with over 450 different CRM, billing and
customer information systems – including
numerous integrations with Tyler Munis.
For both API and file-based integrations, the
format and data fields passed will be defined
based on the City’s requirements. Paymentus can
even work with your existing APIs and file formats,
making any modifications and customizations
needed to support your latest business and
technical needs.
49
Successfully and accurately import
information from DataProse (the
existing bill mailer), including
information with updates to customer
accounts and service locations
OOB Paymentus has extensive experience working
collaboratively with DataProse and other print
vendors. We can import customer information
from DataProse and/or the City, ensuring that
information is accurate and synced across City
vendors and systems.
50
Perform simple configurations (such as
changing the choices available in drop-
down lists) or adding, changing, or
deleting certain custom fields on forms
OOB The Paymentus platform is highly configurable.
Both the web and CSR interfaces can display the
City-specific fields or re-labeling of standard fields
to reflect your naming conventions.
51
Access an audit trail of key actions
taken within the system, including who
made payments, when, and by what
method; who deleted payments; and
who made modifications to customer
accounts
OOB Our systems provide a full audit trail with the
dates and time of all payment transaction activity
in the CSR and customer channels. This
information is available as a part of payment
transaction details as well as system reports
accessible from the Agent Dashboard.
52
Create or remove linkages between
customer accounts, on behalf of
property managers in certain specified
circumstances
OOB Designated employees with proper permissions
can add or remove linkages between multiple
customer accounts in the Agent Dashboard.
53
Create, view, modify and delete static
information (such as directions) on the
customer portal
OOB The City will have extensive capabilities to control
the Paymentus-hosted user interfaces (UIs)
including the ability to add, modify and remove
static information.
54
Create, view, modify and delete
information in customer accounts (such
as phone or email information)
OOB Depending on your business rules, designated
users can be granted the permission to add, view,
modify and remove information in customer
account fields.
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55
Correct financial transaction errors
made by customers, such as reversing or
voiding transactions.
OOB Authorized City users have the ability to
void/reverse payments and issue a full (or partial)
refund. The customer immediately receives an
email notification of the cancellation. At the same
time, the Paymentus system automatically sends
notification to credit the customer for the refund
amount of the bill payment. The cancellation is
recorded in the Agent Dashboard and an update is
sent to your billing system(s). The next day, the
cancellation is detailed in the daily Deposits and
Returns reports, to facilitate easy reconciliation.
56
Perform, from the adminstrative portal,
those tasks listed in Parts 1 and 2, on
behalf of customers, should the
customer portal be malfunctioning or
down for any reason
OOB With the Agent Dashboard from Paymentus, your
staff will have the ability to transact payments and
make changes on behalf of customers as well as
perform a broad array of customer care and back-
office tasks including, but not limited to the
following:
• View payments in real time
• Cancel payments in real time
• Suspend/block payment methods
• View billing statements
• Suppress paper for customers
• Live chat with customers
• View and access reports
• Download reports to Excel, CSV, etc.
• Create/manage customer messages
• Open and track status of a case
• View and track payment metrics
• Control access permissions
• Manage files
• Analyze data
57
Search for key information, such as
payment transactions or customer
records
OOB Using the Agent Dashboard, City staff will have the
ability to lookup/research payments using
confirmation number, account number, date
range, payment status, dollar range, payment
method, payment channel, customer name, user
ID, email and other client-defined field(s).
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58
Submit helpdesk support tickets for
items staff unable to resolve, with
same business day response for
critical issues (those that result in the
system being down or unusable) and
with reasonably quick turnaround
times for non-critical issues
OOB City staff members who have questions or
technical issues can initiate a case via email, toll-
free client support line or directly through the
Agent Dashboard. It is reviewed by Client Services
with acknowledgement sent to the originator
within 15 minutes that includes a case number for
tracking purposes.
We respond as quickly as possible with the goal to
minimize impact and reduce the duration of any
incident. Work begins immediately to identify,
prioritize and resolve the problem in accordance
with assigned severity levels and protocols. The
incident is logged and managed through our case
tracking system, which can also be viewed by the
City for status and resolution updates.
Severity Levels
• Severity 1: Channel-level issue (one channel is
not operational)
o Response: 30-60 minutes
• Severity 2: Business process issue (batch files,
payment posting file unable to download via
both automated and on demand)
o Response: 2-4 business hours
• Severity 3: Individual issue or research
request for payments and chargebacks
o Response: 1 business day
• Severity 4: Questions, clarifications and
change request
o Response: 1 business day
o
59
Readily access technical support during
normal business hours, via email and
phone
OOB Our Client Services team is available 24/7/365 via
telephone, email and online case submission tool.
Each request/case is monitored and tracked with
prompt response and regular updates provided to
the City.
60
Access after hours emergency support
via email and phone
OOB In addition to our 24/7 Client Services Team, your
Account Manager is available during business
hours with after-hours contact via mobile phone
provided for urgent issues.
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61
Be given sufficient notice of system
upgrades and enhancements, and
information on the expected
performance enhancements and
potential problems associated with such
upgrades.
OOB Your Account Manager will share information and
events that may impact the City. This includes
providing advance notice to introduce upcoming
features that the City may want to enable in your
environment.
As other vendors struggle with delivering new
functionality to clients after the initial
deployment, Paymentus delivers continuous
innovation and makes it easy for clients to take
advantage of new features and system
enhancements. Paymentus is a future proof
partner for Aspen.
We plan for one quarterly major release and two
minor releases. A new feature that is created
based on a specific client request is developed,
released and then is available for all clients. All
releases are made available in a client test
environment and are not pushed to production
until successfully tested and approved by the
client. Deployments are automated so that the
process to add new features is simple and
effective.
62
Access breakdown of types of desposits
from vendor
OOB You will have full visibility, at all times and on a
real time basis, to the amount that is due to be
paid out to you. Paymentus offers an industry
leading automated process for simple and
accurate reconciliation including the number of
payments and correct dollars processed. Real-time
detail- and summary-level reports are available to
view every transaction, payment and reconcile
with the associated bank deposit.
Reports included in the “Deposits and Returns”
tab include:
• Net Deposit Summary
• Returns
• Customized Deposit Reports
63
Receive deposits on a daily or weekly
frequency
OOB Daily funds will be submitted to the City's bank
account(s) the next business day. The total of the
deposit will match the daily remittance file.
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Number
Requirement Description
OOB, Config,
Coding, Not
Available
Notes
Part 4: System Integrations
The system should have:
63
Demonstrated ability to integrate with
MS Outlook
OOB Paymentus will interface with MS Outlook where
applicable.
We have implemented more than 1,800 clients
and over 450 different systems. Paymentus will
look to the City for direction on the type of
integration required for any third party
applications you may use.
64
Demonstrated ability to integrate with
Tyler MUNIS
OOB Paymentus has firsthand experience integrating
with Tyler Munis for Utility Billing and will
leverage our established APIs and expertise to
ensure the most up-to-date information with
consistency and accuracy between systems.
65
Demonstrated ability to integrate with
Dataprose*
OOB Paymentus has a long-standing, proven
partnership with DataProse since 2006. We have
partnered to provide more than 100 clients with
our combined, highly successful billing and
payment solutions.
Please refer to the enclosed DataProse
Recommendation Letter.
66
Demonstrated ability to integrate with
payment gateways (preferably
Authorize.net or Municipay), unless the
system includes its own payment
gateway
OOB Paymentus is proposing an end-to-end digital
payments and engagement platform that includes
user interfaces, gateway services, payment
processing, funding and reporting.
Paymentus has partnered with more than a dozen
processors and we coordinate with our clients in
choosing the best service provider based on their
industry, treasury needs, funding needs and
payment methods offered to name a few criteria.
We have established secure, direct and redundant
connections with our processing partners to offer
both the traditional (credit, debit, ACH) as well as
the advanced payment methods (PayPal, Venmo,
PayPal Credit, Amazon Pay, etc.). We manage
these connections and relationships effectively
with no impact or burden on our clients.
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It's important to note that unlike other service
providers, with Paymentus, the City will only have
one integration that takes advantage of the full
power of the Paymentus platform and multiple
processors. The City will only have one contract,
one vendor, one call for problem resolution, one
place to go for reporting and reconciling – ONE
provider for everything proposed.
67
Demonstrated ability to integrate with
all necessary systems without a
significant decrease in system
performance, responsiveness or
accuracy
OOB No one in the industry has more direct
integrations than Paymentus, including numerous
integrations with MUNIS and DataProse. Our
ability to support multiple systems and functions
is unmatched.
The Paymentus technology is built on a single
core, enabling complete interoperability between
functions and elimination of data latency that
plagues legacy provider systems.
We closely monitor the capacity or our systems
based on volumes and responsiveness. The
architecture of our platform scales both
horizontally and vertically with no compromise in
performance, availability or reliability.
More than just a promise, transparency is a top
priority for Paymentus and one of the reasons
why we provide live monitoring and performance
metrics for your service within the Agent
Dashboard.
Your administrators and designated staff will have
a view of the overall health check of the platform,
transactions and file exchanges.
* Vendor may also propose to replace
Dataprose functions, which are centered
around paper bill mailings. This should
clearly be identified as an Add-alt and
priced separately from and in addition
to an integration with Dataprose.
Paymentus has a long-standing, proven
partnership with DataProse since 2006.
Our solution is rules-based and therefore highly
configurable, allowing us to interface with any
print providers and other third party partners that
the City may choose. This includes working with
the bill data file and paper suppression flags – any
format, any frequency.
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Part 5: CITY OF ASPEN IT SYSTEM COMPATIBILITY
FOR CLOUD-HOSTED SOLUTIONS
Number REQUIREMENT Yes, No, Not
Applicable Notes
68
Any locally installed software or client is
fully compatible with the latest version
of the Windows 10 Pro operating
system.
Not applicable The Paymentus solution is accessed via a web
browser over the Internet. The City will not need
to install any software to use the proposed
services.
Windows versions that support commonly used
browsers are recommended.
69
Any locally installed software or client is
fully compatible with Microsoft Active
Directory Domain Services running in
the customer's network.
Not applicable The Paymentus solution is accessed via a web
browser over the Internet. The City will not need
to install any software to use the proposed
services.
The Paymentus platform supports single sign-on
(SSO) into the Customer Portal and Agent
Dashboard. Options include ADFS as well as other
SSO technologies.
70
The solution is compatible with Sophos
anti-malware end point protection with
Intercept X, running on the local PC.
Yes
71
The solution is fully compatible with the
latest versions of common client
browsers: Microsoft Edge, Mozilla
Firefox, Google Chrome, Apple Safari,
etc.
Yes The Paymentus user interfaces are compatible
with all commonly used browsers.
72
The solution is fully compatible with the
latest version of Microsoft Office 365
Office Suite Applications: Outlook,
Excel, Word, etc.
Yes Paymentus is capable of integrating with external
applications based on your business
requirements.
73
The solution is fully compatible with the
latest versions of Microsoft Office 365
Business Applications: Teams, Power
BI/BI Pro, etc.
Yes Paymentus is capable of integrating with external
applications based on your business
requirements.
74
The solution uses the latest version of
any open source or proprietary
database.
Yes All open sourced software follows PCI
requirements for transmission and processing.
75
The solution is compatible with
networked HP, Ricoh, and Xerox
printers.
Yes Any networked printers available to City staff
within their printer settings can be selected to
print reports, confirmations and other detail as
needed.
76 The solution is compatible with HP,
Fujitsu, and Canon scanners.
Not Applicable The Paymentus solution does not require
scanning capabilities in order to use the system.
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We look forward to learning more about your
business needs in this area.
77
The solution is fully compatible and
functional from mobile devices (iPads
and iPhones) while in the field.
Yes Paymentus uses responsive web design (RWD)
technology to ensure easy reading and navigation
with a minimum of resizing, panning and scrolling
across a wide range of devices, from mobile
phones to tablets.
Paymentus also supports payments through a
tablet or mobile device with encrypted swipe card
readers for field payments. Field employees could
leverage the payment feature of the mobile-
responsive Agent Dashboard or leverage available
APIs to integrate with an existing mobile
application used by the City.
78
System complies with Federal E-
Signature Act for paperless billing and
AutoPay by providing a system in which
a Payer must confirm enrollment in
those payment/billing options.
Yes For the best user experience and in full
compliance with regulatory requirements,
auditable customer consent is captured within the
user interface as part of the enrollment process.
Additional mandatory questions related
to Cloud Hosted Solutions:
Yes, No, Not
Applicable
Notes
79
Does the solution send customer
generated email using the vendor's
domain address?
Yes Alternatively, the City would need to grant
Paymentus permissions to send emails using your
domain.
79a If so, does that mail system have SPF,
DKIM, and DMARC protocols in place?
Yes
79b
Does the solution allow for sending
customer generated or reply email using
the customer’s domain address?
No We look forward to learning more about the
City’s needs in this area. Currently, email
notifications instruct customers not to reply to
the email.
79c
If so, can the vendor supply the mail
system's SPF IP addresses and a DKIM
generated certificate to use in the
customer’s DNS records?
Yes
80
What are the minimum PC requiments
for the customer's desktop to connect
and run the solution?
Not Applicable Any PC with internet connection and current
browser can access the Paymentus solution.
Customers can also use other channels that don’t
require a desktop/laptop: phone, mobile, text,
Amazon Alexa, in-person.
81
Does the solution require any hybrid
cloud architecture or additional internal
resources, services or connections?
No Paymentus is proposing a fully hosted SaaS
solution, with all software and hardware located
at our secure operating facilities.
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81a
If so, please list all the requirements for
customer's on-premise virtual
servers/systems to accommodate this?
Not Applicable
82
Does the solution have a financial
transaction component?
Not Applicable Our single platform, single technology stack
solution provides a 360-degree view across
touchpoints with analytics and reporting that
provide actionable business intelligence. You will
be able to engage with your customers through
self-service interactions that are personalized and
available 24/7 via the channels that they choose.
All interactions are managed centrally, giving you
everything you need to understand both the
revenue cycle and customer journey no matter
what channel or method they choose.
82a
If so, how will it interface with the City's
Oracle financial system?
Not Applicable Paymentus is capable of integrating with external
applications based on your business
requirements.
83
Does the solution require a browser
plug-in, extension or player app such as
Adobe Flash or Javascript runtime?
No
84
Does the solution allow for sending
customer generated email using the
customer’s domain address?
Yes The City will need to grant Paymentus permissions
to send emails using your domain.
85
Does any local software/client require
administrative permission to install? To
use?
Not Applicable
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Part 6: CITY OF ASPEN IT SYSTEM SECURITY FOR CLOUD- HOSTED
SOLUTIONS
Number REQUIREMENT Yes, No, Not
Applicable Notes
86
Ability for RBAC security at a granular
level within the application so as to
provide specified users and groups with
access to screens, tables, records and
fields as required.
Yes Role-based security is a pillar of our solution.
Users must be authenticated to gain access the
system. All access and permissions are assigned
based on legitimate business need using role- and
permission-based controls. Designated
administrators from the City will set up new users
and control access using predefined roles and
permissions. Specific functionalities available to
each role and even individual user are defined
based on your business requirements.
87
Ability for private records to be kept
confidential, through assignment of
application security and permissions.
Yes Individuals are assigned to different permissions
for a segregation of duties as well as for checks
and balances. The City will define and control
access rights for customers and staff.
88
Ability for administrative users to
control edit and validation rules to
ensure data integrity.
Yes From the beginning, the validation and business
rules will be configured to meet the City’s
business and technical requirements.
All interactions are automated and centrally
managed, eliminating the need for manual
processes or staff involvement. If allowed,
authorized City staff users can be granted
permission to override velocity limits and blocks
as well as add notes so that it is documented
against the account for future reference.
89 Ability to keep log records of all actions
executed in the system.
Yes All activities from every channel are logged and
available in log reporting for auditing purposes.
90
Ability to keep a separate audit log of
system administrator actions.
Yes All users of the Paymentus Agent Dashboard will
have their own login ID and password. All
activities from every channel are logged and
available in log reporting for auditing purposes.
91
Ability to keep overall database
integrity.
Yes Paymentus uses a three-tiered approach to ensure
data integrity with zero data loss in all exchanges.
1. Guarantee of receipt/transmission. All file
exchanges over SFTP contain a control file with
metadata about the contents of the file and sent
by the originator immediately after the data file is
transmitted.
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Other data verification techniques such as
header/trailer records are highly encouraged but
are dependent on the capabilities of our clients.
In addition to automated SFTP-based data
exchanges, all outbound files from Paymentus are
also available for download via the Agent
Dashboard. Customer-facing interfaces use HTTP
over TLS and TCP/IP transmission controls
inherent in the protocol.
2. Verification of accuracy. We verify the
accuracy of data transmissions inbound from
our clients against the metadata and
established file standards/formats. As a
second layer of validation, we also extract and
emit sensory metrics (e.g., file size, record
count, total $-amount for all accounts, due
date) in a time-series data store. Each time a
new file is received and processed, metrics for
that file are compared with the time-series
analytics from prior transmissions and this
process is repeated on every transmission.
This sensory data is then analyzed in real-time
by our data pipeline/stream-processing
engine and if the standard deviation from the
mean/average is beyond a threshold, an alert
is created. Alerts are routed to our 24/7
operations team and to client-defined
contacts for action.
3. Proactive data-driven monitoring. We
recommend that clients establish a clear data
transmission schedule for each file and for
every destination. Based on this schedule, our
system will generate events based on the
presence/absence of expected files. For
example, if an inbound file is expected at a
specific time and it is not received, our data
monitoring automation will trigger an alert.
Alerts can be configured per file type,
destination, etc.
92
Ability to prevent a primary record
from being deleted if secondary
records exists.
Yes
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93
Ability to encrypt all or certain data
fields for data that is at rest.
Yes By default, our solution masks card and bank
information. Clients also have the opportunity to
mask other sensitive information such as the
customer phone numbers and email addresses.
This ensures that certain users are not able to see
sensitive and identifiable information that can be
misused or manipulated.
Data at rest is encrypted with AES 256-bit
encryption.
94 Ability to encrypt all data in transit
from end to end.
Yes Data in transit is protected with TLS and RSA 2048-
bit certificates and AES 256-bit ciphers.
95
All encryption architectures must use
well-known and openly vetted
standards.
Yes Our solution uses the latest encryption technology
and all user sessions employ HTTP over TLS and
TCP/IP transmission controls.
All pay account data is tokenized and tokens are
encrypted with AES 256-bit.
96 Transport Layer Security must use the
TLS 1.2 protocol or higher.
Yes All traffic must be encrypted end-to-end via
TLSv1.2 with 2048-bit key.
97
Certificates are signed by a well-known
and trusted public certification
authority.
Yes
98 System run in a datacenter that meets
SOC-2 audit certification.
Yes
98a
If so, can you provide the audit report? Yes Paymentus undergoes annual SOC1 and SOC2
Type II audits of the latest standards, Statement
on Standards for Attestation Engagements (SSAE).
We ask that evidence of our audits be shared with
the City separate from the RFP as our discussions
mature and NDA is executed. Please let us know if
this is not acceptable and we will gladly work with
you to provide the information in private forum.
99
Have backup datacenter, and how far
away is it from the primary center.
Yes Our data centers operate in an active-active
configuration. Rather than just a single functioning
site and switch over to backup in the event of a
failure, transactions are flowing through both
centers at all times. If an issue occurs with one
center, transactions would automatically re-route
to the healthy center.
The primary data centers we will use for the City
are in Dallas and Atlanta.
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100
System provides backup/failover
solutions that provides RTO/RPO times
of 24 hours or less.
Yes As shared above, our platform is architected with
an active-active mirrored topology. Data is
replicated in real-time between data centers. This
architecture ensures continuous operations in the
event of a system or site failure.
Our systems are redundant, fault-tolerant and
constantly monitored and operated to deliver an
unmatched level of performance. Every
component of our service is built with N+1
redundancy including multiple, independent
power and data feeds, UPS power. Disparate,
redundant connections to telecom carriers and
processors as well as redundant web, application
and database servers to provide additional
assurances and eliminate single points of failure.
Number Additional Questions for Cloud Based
Solutions System Security
Yes, No, Not
Applicable Notes
101 What is your RTO? Yes The intra-center RTO is 24 hours.
102 What is your RPO? Yes The RPO is less than five minutes.
103 What is your monthly uptime? Yes Our standard SLA guarantees 99.9% system
uptime.
104
What was your annual uptime for the
past 5 calendar years?
Yes Paymentus has maintained uptime of 99.9%+ for
the past 5 years. We promote customer
confidence and encourage digital self-service by
ensuring that our services are available day and
night.
105
Will you provide a copy of your
standard Service Level Agreement
contract language for system uptime?
Yes We are happy to share this information with the
City as our discussions mature.
106
Please specify what security measures
are used that prevent unauthorized
access/data breaches of the system?
Yes Paymentus goes beyond PCI requirements to
deliver fortress-level security with 5-layer
intrusion detection system, multi-factor
authentication and powerful encryption and
tokenization capabilities.
We enforce our rigorous security policies and
procedures through regular internal and third
party audits, 24/7 monitoring, continued
education and sophisticated technology tools. All
data is protected with 256-bit TLS encryption.
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Any communication with any external party and
all users of the system access the system using
secure HTTP. All authorization processes and
information exchanged with partners such as
payment processors or a client is also done using
highly secure channels including IP address
restrictions.
We architected our production network into
separate segments (DMZ, application, storage,
management) with restricted flow between the
segments to minimize threats from external
sources. Redundant and shared firewalls have
been used to separate public-facing web servers in
the demilitarized zone from the back-end
application and database servers in the trusted
zone. Network firewalls are used to segregate the
web layer from the application layer and the
application layer from the database layer.
Paymentus has an Intrusion Detection System
(IDS) which involves five layers of security on our
servers, monitored 24/7. The IDS has both host-
based and network-based components. Any
unauthorized attempt to access the system
initiates alerts to our technology staff. Log files are
created and maintained to analyze any intrusion
attempts.
In addition to IDS, we use two-factor
authentications for all access to the processing
environment. Multiple levels of firewalls are used
to protect the environment. Application firewall is
used to safeguard against application level
attacks. All file changes are tracked for integrity.
As part of PCI DSS Level-1 requirements, we
perform regular network application vulnerability
tests. All locations of cardholder data, and all key
applications that store, process or transmit
cardholder data, all key network connections and
all key access points are included.
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107 Has your system ever experienced a
DDoS attack?
No
108 If so, how long were your servers down
for?
Not Applicable
109
What is your current methodology to
prevent/mitigate DDoS attacks?
Yes The Paymentus platform is protected from L2 and
L3 network attacks with multiple traffic cleansing
centers. L4+ protection is provided by leading
application firewall solutions and protections built
into the Paymentus platform.
110
If your corporate network goes down
due to ransomware or other malware
infection, will it affect the customer's
system?
No The Paymentus corporate network is physically
and logically separated from client production
systems.
111
Does the system have a 2FA/MFA
option for administrators to access the
system?
Yes Multi-factor authentication is supported in both
the customer and client portals.
We will work with your team during
implementation to establish authentication
capabilities based on your requirements.
112
Is there an option for using the City's
SSO SAML 2.0 based system (OneLogin)
for login access by City staff?
Yes Paymentus provides single sign-on (SSO) into the
Customer Portal and Agent Dashboard. We
support SAML, oAUTH, and ADFS integration
options for SSO between the City and Paymentus.
113
Who is considered the owner of all City
data placed in the system?
The City owns all data from the City or your
customers including but not limited to customer
data, payment data and other transaction data.
114
In what format(s) can the data be
exported out in the event of contract
termination?
Paymentus is flexible and would coordinate with
the City to agree on a transition plan that is secure
and efficient with no undue demands on your
resources.
115
Does the system's coding uses secure
software development standards in
order to mitigate the OWASP top 10
vulnerability risks?
Yes We follow OWASP and PCI-mandated System
Development Life Cycle (SDLC) processes that, in
addition to traditional SDLC, include security
design, review and security testing.
116
Has all backdoor developer/admin
access commonly used during software
development been removed from the
production system?
Yes Where applicable, all software is thoroughly
evaluated and all hardware and infrastructure
components are hardened before deployment.
117
Can the vendor provide an attestation
statement from a reputable security
audit/penetration testing company
that the system meets current
standards and best practices for data
confidentiality, integrity and
availability?
Yes Paymentus is certified across multiple industry
and regulatory guidelines and security control
sets. We audit our systems daily, weekly, monthly,
quarterly and annually against best security
practices.
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Paymentus undergoes annual PCI-DSS
assessments and SOC1/SOC2 audits, which clearly
demonstrate and attest to the security of our
systems and detailed, disciplined and rigorous
efforts in executing all aspects of our business.
We ask that evidence of our audits be shared with
the City separate from the RFP as our discussions
mature and we move to the next stage of the
evaluation. Please let us know if this is not
acceptable and we will gladly work with you to
provide the information in an agreeable and more
private forum.
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Component purchases from approved
vendors are tightly controlled and
prequalified. Software from other
vendors is inspected, reviewed and
validated before being accepted as part
of the solution. Is the vendor willing to
provide information on component
purchases if requested?
Yes Where applicable, all software is thoroughly
evaluated and all hardware and infrastructure
components are hardened before deployment.
119
Colorado's data protection law CRS 6-
1-713 places certain notification
requirements on the City. Vendor must
agree in the contract to notify the City
in the event of a data breach as soon
as one is suspected to have occurred,
regardless of the need for further
investigation or forensics examinations
to verify such breach. Is the vendor
willing to provide such information per
the requirements of the law?
Yes Paymentus will provide notification in a timely
manner, per mutually agreed business
requirements.
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Part 7: Reporting and Notifications
Notifications to Customers
OOB, Config,
Coding, Not
Available
Notes/Comments
System can generate notifications
including but not limited to the listing
below:
Many Paymentus notifications can be defined by
the end user to ensure best experience for the
end user based on their preferences.
First Invoice Email Notification
(Optional)
OOB A bill ready notification is delivered as soon the
bill is loaded into the system and available to
view.
Second Invoice Email Notification
(Optional)
OOB We will work the City during implementation to
define the content and timing for this notification.
Payment Transaction Receipt OOB A payment receipt can be emailed or texted to the
customer or printed from the screen.
Declined Auto Pay Transaction OOB
Late Fee Email Notification (Optional) OOB We will work the City during implementation to
define the content and timing for this notification.
Declined Scheduled Payment
Notification
OOB If a payment scheduled by a customer is declined
on the date it processes, the Paymentus platform
will send a message to the customer to notify
them that the payment was not authorized. The
notification can include instructions and/or link to
make a payment using an alternative payment
method.
Newly Registered Customer Welcome
Email
OOB We will work the City during implementation to
define the content and timing for this notification.
AutoPay Registration Notification OOB
Paperless Registration Notification OOB We will work the City during implementation to
define the content and timing for this notification.
ACH Reject/Chargeback Notices (with
reason codes and/or descriptors)
OOB If a payment scheduled by a customer is declined
on the date it processes, the Paymentus platform
will send a message to the customer to notify
them that the payment was not authorized. The
notification can include instructions and/or link to
make a payment using an alternative payment
method.
Credit Card Expiration Notification OOB Paymentus will generate a notification to the
customer who has an upcoming card expiration
date. In addition, we automatically update credit
card expiration dates from all the major issuers
without the customer or the City having to take
any action.
Scheduled Payment Confirmation OOB
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AutoPay Reminder Notification OOB The Proactive Payment Notification Reminder is a
standard email sent out to all users upon who
have elected to receive a reminder prior to their
AutoPay/Scheduled Payment from being
processed.
Scheduled Payment Reminder
(Optional)
OOB
Paperless Off Confirmation OOB We will work the City during implementation to
define the content and timing for this notification.
Pending payments for auto-pay
enrollees
OOB
Online Bank Direct Payment Receipt Not Available This capability is already provided by the
customer’s bank and could impact negatively on
the user experience.
AutoPay Off Confirmation OOB
Conveyed Customer Notification OOB In addition to our full complement of standard
notifications and reminders, Paymentus provides
dynamic messaging capabilities through our
Enterprise Communications Manager (ECM). This
powerful tool will give the City the ability to create
and send other types of customer
communications such as outage notifications,
service terms updates, targeted campaigns and
more. The process is simple with our intuitive ECM
interface to assign the targets, determine the
delivery method, define the date and time for
delivery and provide the content.
Recurring Scheduled Payment
Confirmation (Optional)
OOB
Recurring Scheduled Payment Canceled
(Optional)
OOB
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Notifications to Staff
OOB, Config,
Coding, Not
Available
Notes/Comments
ACH Reject Notifications OOB We offer a more convenient approach than
receiving numerous system-driven emails. City
staff will have direct, real-time access to all
billing and payment activity and reports via the
Agent Dashboard.
Declined payment notice w/ details OOB We offer a more convenient approach than
receiving numerous system-driven emails. City
staff will have direct, real-time access to all
billing and payment activity and reports via the
Agent Dashboard.
Batch Close Notifications OOB We offer a more convenient approach than
receiving numerous system-driven emails. City
staff will have direct, real-time access to all
billing and payment activity and reports via the
Agent Dashboard.
Daily Management Report OOB We offer a more convenient approach than
receiving numerous system-driven emails. City
staff will have direct, real-time access to all
billing and payment activity and reports via the
Agent Dashboard.
File Processing Notifications OOB We offer a more convenient approach than
receiving numerous system-driven emails. City
staff will have direct, real-time access to all
billing and payment activity, reports and file
exchanges via the Agent Dashboard.
Month End Billing Invoice OOB We will send copies of the monthly invoice to
designated City contacts.
Paperless Customer Email Bounce Daily
Report
OOB City staff will have self-service access to a
bounceback report generated automatically
and made available via the Agent Dashboard.
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Reports Available to Staff
OOB, Config,
Coding, Not
Available
Notes/Comments
System can generate reports including
but not limited to the listing below:
Monthly financial Activity Summary OOB In addition, our platform offers a broad array of
actionable data, reports and dashboard metrics
to help our clients to understand the bill-to-
payment lifecycle, payment volumes, payment
trends and consumer behavior.
Account Registration Report OOB
Auto-Pay Report OOB
Paperless Report OOB
Data Synchronization History Config Paymentus has multiple options for export or
download of payment and customer
information and would be interested in learning
more about your specific needs.
EFT/ACH Rejections OOB
View Scheduled Payments OOB
Import Errors OOB We verify the receipt and accuracy of data
transmissions inbound from our clients.
Proactive monitoring will be applied and our
system will generate events based on the
receipt of expected files in accordance with the
City's deadline.
Daily Payments Received OOB
Total Outstanding Invoices (# of invoices
& total dollar amount)
OOB Paymentus would be interested in learning
more about your specific needs in this area.
Because we base interactions off the City’s
original record of source, not an invoice, the
City will be able to see all account based details
easily.
With more than 1,800 clients, we are confident
we have the capability to meet your latest
reporting needs.
Email Notification Summary (Optional) OOB
Email Statistics (Optional) OOB Paymentus captures and delivers extensive
telemetry on all activity in the platform. Our
platform offers a broad array of actionable
data, reports and dashboard metrics to help our
clients to understand the bill-to-payment
lifecycle, payment trends and consumer
behavior.
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Email Tracking (Optional) OOB All communication to customers is tracked and
logged.
Undeliverable Email Breakdown OOB Paymentus provides a daily bounceback report
for email bouncebacks.
Audit trail of who made
payment and source of payment
OOB Our systems provide a full audit trail with the dates
and time of all payment transaction activity in the CSR
and customer channels. This information is available as
a part of payment transaction details as well as system
reports
accessible from the Agent Dashboard.
3.0. PROJECT APPROACH AND MANAGEMENT
3.1. Scope of implementation and milestones.
The Paymentus and City implementation teams will work together in refining the business, functional and technical
requirements of this project, and ultimately the milestone dates that drive the implementation timeline. While many
aspects of the solution build are common for all implementations, the data elements, rules and controls will be
defined specifically to the City’s business needs. Paymentus will work collaboratively with the City to identify the
best opportunities for enhancement and optimal value that focuses on the City’s key objectives and takes advantage
of the expertise and insights of the Paymentus team.
Key Milestones
• Business requirement definition and specifications with sign-off by both teams
• Detailed project plan developed based on above with sign-off by both teams
• Setup of funds settlement framework and options for digital disbursements
• Migration planning to understand the data to migrate and devise a schedule
• Integration with Client and other third party systems as required
• Incorporate your rules and permissions for staff and customers
• Test using a live pre-production UAT system with sign-off by Client
• Define training approach, conduct training and identify staff administrators and users
• Launch planning
• Post-Launch monitoring
3.2 Setting up a project steering committee, agreeing on communication plan and creation of account setup
worksheet.
Paymentus will work with Client to do the following in the kickoff meeting:
a. Form a project steering committee including decision makers from stakeholder groups at project
inception, which will work to actively prioritize and authorize change requests, if applicable;
b. Agree upon a communication plan that incorporates insights gained while transitioning customers from
your existing provider (and other providers) and using the same Services that Client is implementing, including the
creation of an account setup worksheet.
3.3 Integration.
At no charge, Paymentus will integrate the City’s systems with the Paymentus Platform, in accordance with the type
of integrations selected by the City as detailed in this contract.
3.4 Merchant Account.
Paymentus will arrange for the City to have a merchant account with the Paymentus Authorized Processor for
processing and settlement of transactions.
3.5 Agent Dashboard.
Paymentus will provide the City with access to the Agent Dashboard, which shall be configured to the City’s
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preferences, and will allow (i) Agents to interface with City customers who are making inquiries about, or payments
of their bills, (ii) allow access to reports and invoices pursuant to security protocols which will be set up as directed
by the City
3.6. Creation of Reports.
Paymentus will assist the City in configuring the Agent Dashboard so that the City will receive reports
accessed through the Agent Dashboard (and configured to provide information requested by the City, including (i)
posting of transactions by date or date range, (ii) reports for reconciliation and settlement and (iii) data reports,
which summarize the use of the Services by Users for a given reporting period. The City has the responsibility of
reconciliation of all Reports.
3.7. Training.
Work with the City to assist City Representatives to learn the system (specifically the Agent Dashboard which
contains all information City’s CSRs and agents will need to see to manage the City’s business in real time). The
Parties will work to create a mutually acceptable agenda for each training session. Typical training sessions include
the following:
• Making agent assisted payments
• Scheduling payments on behalf of a customer
• Controlling accessibility (add, suspend, block payment method)
• Running and managing reports
• Performing accurate reconciliations
• Administrator tasks including how to create users and assign user rights
• Creating outbound messages
Paymentus will work with the City to develop a “train the trainers” training program for the City’s staff users, at no
additional cost. If a second session is requested, Paymentus will provide additional training at no cost.
3.8 Development of Marketing/Communications.
Work with the City to identify communication plans to the City’s customers that will update such customers via the
City’s website or other methods identified by the parties.
3.9 Acceptance Testing
The Acceptance Testing approach and details can be found in the Master Services Agreement, Section 3.
4.0 CHANGE ORDERS
If the City requests material changes to this scope of work and Paymentus agrees to perform such work, then a
mutually agreed upon Change Order will be developed, signed and added to this Agreement as an Addendum.
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EXHIBIT B. FEE SCHEDULE
For the term of this contract, payments will be made by the City to Paymentus according to the Fee Schedule below,
unless a different fee schedule is mutually agreed upon by both parties.
Notes:
• Chargebacks and returned checks are $9.95 per item.
• Average payment amount is $300.00.
• Maximum Payment amount is $1,000.00. Multiple payments can be made.
Equipment Fees
If equipment is requested, Paymentus Service Fees charged to the Client will be based on one of the following tables:
Encrypted Swipe Devices (optional)
• SecureMag™ (Over-the-Counter) $250.00 per device plus shipping & handling
• EMV Device (Over-the-Counter) $350.00 per device plus shipping & handling
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Outbound Notifications (optional)
• Outbound Notifications include 3,000 (phone, email and/or text) messages per
month; additional usage invoiced at $0.20 per message.
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EXHIBIT C:
Paymentus Ongoing Service Level Schedule
This table identifies the types of support services and service time expectations for ongoing customer
service support of the Paymentus Platform..
CUSTOMER SERVICE
RESPONSE
For any customer service request via customercare@paymentus.com, a
case is created immediately with a unique case number. A response is
sent to the originator with the acknowledgement that a case has been
created. Such response is sent within 15 minutes of the receipt of an email
via Paymentus.
On a triage basis, an appropriate severity level is assigned to the case and
the following guidelines are setup for response times.
Severity Levels:
• Severity 0: System Level Issue (Entire System is not operational)
• Severity 1: Channel Level Issue (One Channel is not operational -
Web, IVR or Agent Dashboard)
• Severity 2: Business Process Issue (Batch Files, Payment Posting
File)
Unable to download via both Automated and On-demand via
Agent Dashboard)
• Severity 3: Individual Payment Issue or Research Request for
Payments and Charge-backs.
• Severity 4: Information Request, Questions, Clarifications,
Change Request. This includes training calendaring, questions
regarding files, Paymentus procedures, payment schedules or
other similar information requests.
Response Timeframes:
• Severity 0: 30-60 minutes; Paymentus Executive Sponsor
• Severity 1: 30-60 minutes; Paymentus Account Manager
• Severity 2: 2-4 business hours; Paymentus Account Manager
• Severity 3: one business day; Paymentus Account Manager
• Severity 4: one business day; Paymentus Account Manager
Bill Presentment Data Provided the Client follows Paymentus standard integration guidelines,
the timelines of presentment and receipt of bill data on the Biller Direct
Site (i.e., the processing of the bill file so they are available to the System's
customers within 6 hours of receipt of the bill file). Paymentus shall
demonstrate that greater than 99.0% of all files are processed within the
specified window.
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Payment Processing Data Provided the Client follows Paymentus standard integration guidelines,
the timelines for sending payment data for a biller-direct site using the
System's financial institution for payment processing (i.e., payments
requested before the cut-off time, Paymentus will create a payment
instruction file every banking day and send a payment instruction file to
the predefined financial institution for payment processing). Paymentus
shall demonstrate that greater than 99.0% of all payment files are
processed by the vendor within 6 hours of creating such files.
System Availability Online, Mobile and IVR system availability supported by Paymentus-
Paymentus is expected to maintain a 99.0% system uptime, except for
scheduled maintenance. Whenever possible, advanced notice must be
provided to the Client.
Outbound Notification Paymentus is required to generate the outbound notification 99.0% of the
time within 6 hours of the event that generated that message.
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MEMORANDUM
TO:Mayor and City Council
FROM:John Spiess, Open Space and Natural Resource Manager, Parks and Open Space
THROUGH:Matt Kuhn, Parks and Open Space Director
MEETING DATE: April 13, 2021
RE:Utility Easements and Trench, Conduit and Vault Agreement at Cozy Point
Ranch, Resolution #035
REQUEST OF COUNCIL:
Staff is seeking Council approval for two utility easements and a trench, conduit and vault agreement at
Cozy Point Ranch.
SUMMARY / BACKGROUND:
Cozy Point Ranch, a 168-acre parcel owned by the City of Aspen, has two leaseholders: Cozy Point Ranch
LLC and The Farm Collaborative LLC. Electrical service to the property does not meet the current or
projected needs of the two lessees in particular the Farm Collaborative.
DISCUSSION:
To establish an appropriate level of service to the Farm Collaborative it was determined that the primary
power lines should be extended from their existing location to the lease boundary. The easements and
agreements (exhibits A, B and C) will facilitate the infrastructure upgradesthat are necessary to meet
the electrical needs of the Farm Collaborative and other future ranch needs. Installation of the conduit,
vaults and transformer will be the responsibility of the City of Aspen in conjunction with Holy Cross
Energy. The Farm Collaborative will assume responsibility for the installation of wiring from the
transformer to uses proposed within their leased area.
FINANCIAL/BUDGET IMPACTS:
The granting of these easements will help facilitate the installation of a new transformer that is
projected to cost $34,600. The costs will be paid from the Parks and Open Space Fund and can be
achieved within existing appropriations.
ENVIRONMENTAL IMPACTS:
This work will have no environmental impact.
STAFF RECOMMENDATION:
Staff recommends approval of the utility easements and the trench, conduit, and vault agreement.
130
RESOLUTION #035
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING TWO EASEMENTS AND A TRENCH AND
VAULT AGREEMENT FOR UTITLITES AT COZY POINT RANCH
AUTHORIZING TORRE, MAYOR, TO EXECUTE SAID EASEMENTS AND
AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council two easements
and a trench and vault agreement, a true and accurate copy of which is attached
hereto as Exhibit “A”, Exhibit “B” and Exhibit “C”;
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 two easements
and a trench and vault agreement for utilities at Cozy Point Ranch, a copy of the
easements and agreement is annexed hereto and incorporated herein, and does
hereby authorize the Mayor to execute said agreement on behalf of the City of
Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 13
th day of April 2021.
Torre, Mayor
I, Nicole Henning, 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, April 13th, 2021.
Nicole Henning, City Clerk
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HOLY CROSS ENERGY
RIGHT-OF-WAY EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
City of Aspen
(hereinafter called "Grantor"), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does
hereby grant unto Holy Cross Energy, a Colorado corporation whose post office address is P. O. Box 2150, Glenwood
Springs, Colorado (hereinafter called "Grantee") and to its successors and assigns, the right of ingress and egress across
lands of Grantor, situate in the County of Pitkin, State of Colorado, described as follows:
A parcel of land situate in Sections 16 and 21, Township 9 South, Range 85 West of the 6th P.M., as more fully
described at Reception Number 375046 in the records of the Pitkin County Clerk and Recorder’s Office, Aspen,
Colorado.
And, to construct, reconstruct, enlarge, operate, maintain and remove an electric transmission or distribution line or
system, within the above mentioned lands, upon an easement described as follows:
An easement thirty (30) feet in width, the centerline for said easement being a power line as constructed, the approximate
location of which upon the above described property is shown on Exhibit A attached hereto and made a part hereof by
reference.
The rights herein granted specifically allow Grantee to (1) install down guys with anchors as needed on any pole located on
the above described easement, and (2) install additional poles, down guys with anchors, overhead conductors and/or
related facilities within the above described easement at any time in the future.
And, in addition, Grantor hereby grants to Grantee, and to its successors and assigns, the right to clear all trees and brush,
by machine work or otherwise, within said easement, and the further right to cut trees, even though outside of said
easement, which are tall enough to strike the wires in falling.
Grantor agrees that the surface of the ground will not be changed nor will any other alteration be made within the
boundaries of the easement which would violate National Electrical Safety Code requirements for minimum clearance from
the power line conductors.
Grantor agrees that all poles, wire and other facilities installed by Grantee on the above described lands, shall remain the
property of Grantee, and shall be removable at the option of Grantee.
Grantor covenants that they are the owner of the above described lands and that the said lands are free and clear of
encumbrances and liens of whatsoever character, except those held by the following: All those of Record.
TO HAVE AND TO HOLD, said right-of-way and easement, together with all and singular, the rights and privileges
appertaining thereto, unto Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this day of ,
20 .
W/O#21-24099:78-53:Cozy Point Ranch Padmount Farm Collaborative 3/17/21 21-24099 LC Page 1 of 2 Revised 4/5/11
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The individual signing this Holy Cross Energy Right-of-Way Easement hereby represents that they have full power and
authority to sign, execute, and deliver this instrument.
City of Aspen
Mayor
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 20 ,
by as Mayor of City of Aspen.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
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TRENCH, CONDUIT, AND VAULT AGREEMENT
This agreement is made and entered into this day of , 20 ,
between City of Aspen, whose mailing address is 130 S. Galena St., Aspen, CO 81611, hereinafter called "Owner", and Holy
Cross Energy, a Colorado corporation whose mailing address is P. O. Box 2150, Glenwood Springs, Colorado 81602, hereafter
called "Holy Cross".
WHEREAS, Holy Cross has been requested by Owner to provide underground electric facilities, hereinafter called “Facilities”,
to serve a project known as Cozy Point Ranch Padmount Farm Collaborative, hereinafter called “Project”; and,
WHEREAS, Owner is required to provide all excavation, conduit and vault installation, backfill, compaction and cleanup
needed to construct said requested Facilities; and,
WHEREAS, Owner owns real property described as follows: A parcel of land situate in Sections 16 and 21, Township 9
South, Range 85 West of the 6th P.M., as more fully described at Reception Number 375046 in the records of the Pitkin
County Clerk and Recorder’s Office, Aspen, Colorado, hereinafter called “Property”, which Property is the real property
where the Project is being developed; and,
WHEREAS, installation of Facilities to serve the Project may require trenching or other excavation on certain real property
adjacent to the Project described as follows: N/A, hereinafter called “Adjacent Land”.
NOW, THEREFORE, Owner and Holy Cross agree as follows:
1. Owner shall provide all excavation, conduit and vault installation, backfill, compaction and cleanup necessary for
installation of Facilities to serve the Project. Such excavation shall be located as shown on the construction plans
approved by Holy Cross, and performed in accordance with Holy Cross Vault Installation Specifications, Construction
Specifications and inspector requirements. Any deviation from the approved construction plans will not be made unless
approved by Holy Cross in advance. All Facilities installed hereunder shall be inspected during construction by Holy
Cross and shall meet all Holy Cross requirements prior to acceptance of such Facilities by Holy Cross.
a. Prior to commencement of any work hereunder, Holy Cross shall furnish to Owner its Vault Installation Specifications
and Construction Specifications and such specifications are made a part hereof by reference.
b. All Facilities installed within the Property and Adjacent Land shall be within dedicated or conveyed and recorded
utility easements.
c. The top of all conduits installed hereunder shall be located a minimum of 48” below the final grade of the ground
surface.
d. A twelve-inch (12”) minimum separation will be maintained between conduits installed for the Facilities and all other
new or existing underground utilities. Wherever possible, this separation will be horizontal. The Facilities conduit
separation from plastic gas lines shall be greater than this minimum wherever practicable.
e. Holy Cross will supply the necessary conduit and vaults for installation by the Owner upon completion of contractual
arrangements. Owner assumes responsibility for all material lost or damaged after such material has been issued
to and signed for by Owner or by an agent of Owner. Alternatively, Owner may provide its own conduit and vaults
meeting Holy Cross specifications for use on the Project and convey such provided material to Holy Cross with an
acceptable Bill of Sale. After installation by the Owner and acceptance by Holy Cross, Holy Cross shall continue as
the owner of the conduit, vaults and related structures and facilities.
f. If conduit and/or vault installation provided by Owner for the Project are found to be unusable or improperly
constructed, irrespective of whether such discovery is made during or after installation, Owner will be responsible
for correcting said problems at its expense as specified by Holy Cross and Owner shall reimburse Holy Cross for all
additional costs resulting from conduit and/or vault installation being unusable or improperly constructed.
2. Despite the fact that Holy Cross reserves the right to specify acceptable work performed hereunder, Owner shall perform
work hereunder as an independent contractor, including, but not limited to, the hiring and firing of its own employees,
providing its own tools and equipment, payment of all wages, taxes, insurance, employee withholdings, and fees
connected with its work on the Project.
3. Owner shall obtain all necessary digging permits and utility locations prior to excavation for work performed hereunder.
Owner shall repair all damage caused during excavation promptly and at its expense. No excavation will be undertaken
within five (5) feet of existing underground electric facilities except under the on site supervision of a Holy Cross
employee.
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4. Owner shall indemnify, save, and hold harmless Holy Cross, its employees and agents, against any and all loss, liability,
claims, expense, suits, causes of action, or judgments for damages to property or injury or death to persons that may
arise out of work performed hereunder, or because of a breach of any of the promises, covenants and agreements herein
made by the Owner. Owner shall promptly defend Holy Cross whenever legal proceedings of any kind are brought
against it arising out of work performed hereunder by the Owner and/or work performed at the direction of the Owner.
In the event Owner shall fail to promptly defend Holy Cross, it shall be liable to Holy Cross, and shall reimburse it, for
all costs, expenses and attorney fees incurred in defending any such legal proceeding. Owner agrees to satisfy, pay,
and discharge any and all judgments and fines rendered against Holy Cross arising out of any such proceedings. Owner
also agrees to promptly satisfy and pay any monetary settlements of disputes that arise hereunder, provided Owner has
been given the opportunity to join in such settlement agreements. The above indemnification clause shall not apply to
state and local governments or local service districts. In lieu thereof, whenever Owner is a government or district it shall
procure and maintain in effect at least $1,000,000 of public liability insurance covering the acts, damages and expenses
described in the above indemnification clause. Upon Holy Cross’ request, such an Owner shall furnish a Certificate of
Insurance verifying the existence of such insurance coverage.
5. Owner shall repair, at its expense, any excavation settlement and damage to asphalt paving or other surface
improvements caused by such settlement resulting from work performed hereunder within the Property and Adjacent
Land for a period of two (2) years beginning on the date backfill and cleanup are completed.
6. Owner, at its expense, shall stop the growth of thistles and/or other noxious weeds in all areas disturbed by excavation
performed hereunder for a period of two (2) years beginning on the date backfill and cleanup are completed.
7. In the event Owner shall not promptly complete all of the obligations hereinabove agreed to be performed by Owner,
Holy Cross may give written notice by registered or certified mail demanding Owner to complete the work and obligations
undertaken by Owner herein, and if such is not completed within 30 days after receipt of such notice by Owner, Holy
Cross may complete the work and obligations hereof. If Holy Cross shall be required to complete the work, all costs of
completion shall be chargeable to and collectible from Owner.
8. As set forth in paragraph 1 above, Owner covenants that the trench, and all Facilities within the trench installed hereunder
shall be located within dedicated or conveyed and recorded utility easements and at the proper depth below finished
grade. It shall be the obligation of Owner to properly locate and construct the Facilities within the easement. Should it
ever be discovered that such Facilities have not been properly located within dedicated or conveyed and recorded utility
easements, or at the proper depth, it shall be the obligation of Owner to provide new easements for the actual location
of the Facilities, or to relocate the Facilities within the easement, all of which shall be at the sole cost and expense of
Owner.
9. It shall be Owner’s responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed
hereunder on the Property are accessible by Holy Cross boom trucks and other necessary equipment and personnel at
all times. The use of such access by Holy Cross shall not require removal or alteration of any improvements, landscaping,
or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and
transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer
and switchgear vaults shall be six (6) inches below the top of the pad. The ground surface grade at said splice vaults
shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow)
and accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers
and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface
within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping,
and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non-
opening sides and backs of said transformers and switchgear. Owner hereby agrees to maintain the requirements of
this paragraph and further agrees to correct any violations that may occur as soon as notified by Holy Cross. Said
corrections will be made at the sole cost and expense of Owner.
10. All Holy Cross meter locations must be approved in advance. Notwithstanding such advance approval, it shall be the
Owner’s responsibility to maintain acceptable access, as determined solely by Holy Cross, to all Holy Cross meters at all
times. At any time in the future, should access to any Holy Cross meters be determined by Holy Cross to be unacceptable,
then it shall be the Owner’s responsibility, at the Owner’s sole cost, to correct the access and make it acceptable, as
determined solely by Holy Cross.
11. Owner covenants that it is the owner of the above described Property and that said Property is free and clear of
encumbrances and liens of any character, except those held by the following: All those of Record.
The promises, agreements and representations made by Owner herein shall be covenants that run with the Property and
shall be binding upon the successors in interest, and assigns, of the Property.
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The individual signing this Trench, Conduit and Vault Agreement hereby represents that he/she has full power and
authority to sign, execute, and deliver this instrument.
Holy Cross Energy, a Colorado corporation City of Aspen
By: By:
David Bleakley – Vice President, Engineering Mayor
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 20 ,
by as Mayor of City of Aspen.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of , 20 ,
by David Bleakley – Vice President, Engineering Holy Cross Energy, a Colorado corporation.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
W/O#21-24099:78-53:Cozy Point Ranch Padmount Farm Collaborative 3/17/21 21-24099 LC Page 3 of 3 Revised 4/5/11
Trench, Conduit and Vault Agreement
Holy Cross Energy
137
HOLY CROSS ENERGY
UNDERGROUND RIGHT-OF-WAY EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
City of Aspen
(hereinafter called "Grantor"), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does
hereby grant unto Holy Cross Energy, a Colorado corporation whose post office address is P. O. Box 2150, Glenwood
Springs, Colorado (hereinafter called "Grantee") and to its successors and assigns, the right of ingress and egress across
lands of Grantor, situate in the County of Pitkin, State of Colorado, described as follows:
A parcel of land situate in Sections 16 and 21, Township 9 South, Range 85 West of the 6th P.M., as more fully
described at Reception Number 375046 in the records of the Pitkin County Clerk and Recorder’s Office,
Aspen, Colorado.
And, to construct, reconstruct, repair, change, enlarge, re-phase, operate, and maintain an underground electric
transmission or distribution line, or both, with the underground vaults, conduit, fixtures and equipment used or useable in
connection therewith, together with associated equipment required above ground, within the above mentioned lands, upon
an easement described as follows:
An easement ten (10) feet in width, the centerline for said easement being an underground power line as constructed, the
approximate location of which upon the above described property is shown on Exhibit B attached hereto and made a part
hereof by reference.
The rights herein granted specifically allow Grantee to install additional underground and/or pad-mounted facilities within
the easement described herein.
It shall be the Grantor’s responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed
hereunder on said real property are accessible by Grantee’s boom trucks and other necessary equipment and personnel at
all times. The use of such access by Grantee shall not require removal or alteration of any improvements, landscaping, or
other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and
transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and
switchgear vaults shall be six (6) inches below the top of the pad. The ground surface grade at said splice vaults shall be
even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and
accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers and
switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten
(10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping, and other
obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non-opening
sides and backs of said transformers and switchgear. Grantor hereby agrees to maintain the requirements of this
paragraph and further agrees to correct any violations which may occur as soon as notified by Grantee. Said corrections
will be made at the sole cost and expense of Grantor.
Together with the right to remove any and all trees, brush, vegetation and obstructions within said easement and the right
to pile spoils outside said easement during construction and maintenance, when such is reasonably necessary for the
implementation and use of the rights hereinabove granted. In areas where vegetation is disturbed by the above described
use of the easement, the ground surface shall be seeded using a standard native mix by Grantee. Grantor agrees that
landscaping or other surface improvements added on said easement after the date of execution hereof will be minimized
and that Grantee will not be responsible for damage to said additional landscaping or surface improvements caused by
exercise of its rights granted by this easement.
Grantor agrees that all facilities installed by Grantee on the above described lands, shall remain the property of Grantee,
and shall be removable at the option of Grantee.
Grantor covenants that they are the owner of the above described lands and that the said lands are free and clear of
encumbrances and liens of whatsoever character, except those held by the following: All those of Record.
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TO HAVE AND TO HOLD, said right-of-way and easement, together with all and singular, the rights and privileges
appertaining thereto, unto Grantee, its successors and assigns, forever.
IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this day of
, 20 .
The individual signing this Holy Cross Energy Underground Right-of-Way Easement hereby represents that they have full
power and authority to sign, execute, and deliver this instrument.
City of Aspen
By:
Mayor
STATE OF )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
20 , by as Mayor of City of Aspen.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
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140
MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Robert Schober, Capital Asset Project Manager
THROUGH:Lisa Rigsby Peterson, Director of the Wheeler Opera House
MEMO DATE:April 5, 2021
MEETING DATE:April 13, 2021
RE:Wheeler Opera House Masonry Change Order – Additional Paint
Stripping & General Conditions
REQUEST OF COUNCIL:
Request approval and execution of Summit Sealants change order #2 for additional paint
stripping for the masonry window surrounds & general conditions.
SUMMARY AND BACKGROUND:
After completing the initial paint removal on the masonry at the Wheeler Opera House,
Mills + Schnoering Architect’s has recommended that in lieu of the original specification
for a semi-transparent keim coating installation around the window surrounds that the
stone be left uncoated and exposed. Summit Sealants will strip the last remaining bits of
paint from the windows using a combination of light chemicals and hand removal with
tools. Exhibit A shows pictures of the windows in their current state with the paint
remaining to be removed.
In addition, the change order includes costs for general conditions that are being
performed by Summit Sealants for “prime contractor duties” after the release of the
original prime contractor from the project. These duties include opening/closing of the
site, submittals/RFI’s, safety & ROW management as well as rental of additional
equipment.
DISCUSSION:
Staff is requesting approval of the attached change order from Summit Sealants. A copy
of the change order is attached as Exhibit B.
The updated project schedule has the east elevation of the building having a final wash
& scaffolding removed by 7/7/21. There will be additional work in the ROW for the
installation of the remaining large “lower profile D” stones underneath the windows using
a boom fork truck after the scaffolding is pulled. These stones are too heavy to install
141
from the scaffold. The installation of these stones will result in intermittent closures of the
sidewalk through the beginning of July. The business tenets on the Hyman Avenue side
of the Wheeler are privy to the current schedule and the project team will work with them
moving forward in order to minimize impacts to their operations after the scaffolding is
removed.
The remaining south elevation stone replacement is currently scheduled for completion
in early September. The Wheeler is planning to reopen on or around May 17th and the
project site has been made safe for both the public and Wheeler staff in order to allow for
the reopening.
FINANCIAL IMPACTS:
This request is funded through a combination of funds held within capital project #51041
Wheeler Building and Site Improvements (Phase 1) which included the mockup and
discovery process, and Project #51428 Wheeler Masonry Restoration.
Current project funding is as follows:
Council summary
Remaining Funds Project #51041 Wheeler Building & Site Improvements $279,928
Current Project Budget #51428 Wheeler Masonry Restoration $2,057,000
Current project budget $2,336,928
Total obligated $2,165,285
Summit change order #2 $100,157
Total with changes $2,265,442
Remaining project funds for contingency $71,486
ENVIRONMENTAL IMPACTS: N/A
RECOMMENDATIONS:
Council to approve Summit Sealants change order #2.
CITY MANAGER COMMENTS:
142
RESOLUTION #36
(Series of 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A CONTRACT CHANGE ORDER FOR THE WHEELER OPERA HOUSE
PROJECT BETWEEN THE CITY OF ASPEN AND SUMMIT SEALANTS AND
RESTORATION SERVICES INC.,AND AUTHORIZING THE CITY MANAGER TO
EXECUTE THE CONTRACT CHANGE ORDER ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, the City of Aspen and Summit Sealants and Restoration Services Inc. have
proposed a change order for the Wheeler Opera House project, a copy of which is attached
hereto as Exhibit A; and,
WHEREAS, the City Council has determined that it is in the best interest of the
City of Aspen to approve the Contract pursuant to the terms 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 the attached Contract
Change Order between the City of Aspen and Summit Sealants and Restoration Services Inc.,
and does hereby authorize the City Manager to execute the Contract Change Order on behalf of
the City of Aspen.
INTRODUCED,READ AND ADOPTED by the City Council of the City of Aspen on
the 13th, day of April 2021.
Torre,Mayor
I,Nicole Henning,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,April 13,2021.
Nicole Henning,City Clerk
143
Exhibit A – Current Condition Wheeler Masonry Window Surrounds
144
145
183 N. 12th St. | Carbondale, CO 81623 | www.ConceptOneGroup.com | (970) 456-6470
April 5, 2021
Mr. Rob Schober
Project Manager
City of Aspen
130 South Galena Street
Aspen, CO 81611
CITY OF ASPEN – WOH PHASE 2: SUMMIT SEALANTS CO #2
Dear Rob:
The purpose of this letter is to recommend the approval of the Summit Sealants Change Order #2.
BACKGROUND
This change order is for the costs associated with additional general conditions and additional
coating/paint removal. These additional responsibilities are due to Summit Sealants taking
responsibilities for “prime contractor duties” due to the release of Aspen Constructors from the project.
PROJECT COSTS
The cost for this change is $100,157.00.
Total Cost of Change Order #2: $100,157.00
Best Regards,
Jack Wheeler
President
Concept One Group, Inc.
Attachment: Summit Sealants Change Order #2
Exhibit B
146
Montrose • Gypsum • Denver • Seattle
_____________________________________________________________________________________________
March 23, 2021 Wheeler Opera House Preservation CO2 Page: 1/2
"At the Top of the Sealant and Restoration Industry for 13 Years”
Denver Office
2000 W. Quincy Avenue
Englewood, CO 80110
P: 720-389-8633
F: 720-242-9276
Main Office/ Accounting
2450 North Townsend Ave
Montrose, CO 81401
P: 970-240-5971
F: Fax 970-240-0951
Seattle Office
4210 B Street NW, Ste A
Auburn, WA 98001
P: 253-243-6172
F: 253-243-6194
In accordance with your request to provide additional General Contracting Services and additional Coating/Paint
Removal as directed for the above-mentioned property, we are providing this Change order #2 proposal for
review and approval. All work will be performed in accordance to the
National Historic Register and workmanship of the highest quality be utilized, as directed by the City of Aspen,
Concept One Group and M+S Architects. All materials will be installed in accordance with manufacturer’s
written recommendation.
Additional General Conditions
• Opening/closing of site
• Safety
• Skid steer/heavy equipment
• Admin
• Overhead/Project management
• Assist with urgent/emergency situations, after hours.
• Additional communications; submittals, RFI’s, etc..
Additional Coating/Paint Removal
Total Additional Cost for Change Order #2: +$100,157.00
The proposed work is to be completed during normal working hours M-F, 7:00 am – 3:30 pm.
Payment Terms: “Net 30 Days. Price is valid for 30 days.”
This proposal is proprietary and confidential, intended only for the recipients addressed above.
General Exclusions: Adequate- water, power, parking, sanitation, staging/laydown area, notifying tenants/public
of noise associated with work, landscaping, temporary storage, uninterrupted access to work location, Removal or
replication of any interior furnishings, including window treatments and coverings, multiple
mobilizations/demobilizations, Fencing, abatement.
March 23, 2021 Email: wheeler@conceptonegroup.com
robert.schober@cityofaspen.com
City of Aspen
130 South Galena Street
Aspen, CO 81611
Re: Wheeler Opera House Preservation CO2
147
Montrose • Gypsum • Denver • Seattle
_____________________________________________________________________________________________
March 23, 2021 Wheeler Opera House Preservation CO2 Page: 2/2
"At the Top of the Sealant and Restoration Industry for 13 Years”
Denver Office
2000 W. Quincy Avenue
Englewood, CO 80110
P: 720-389-8633
F: 720-242-9276
Main Office/ Accounting
2450 North Townsend Ave
Montrose, CO 81401
P: 970-240-5971
F: Fax 970-240-0951
Seattle Office
4210 B Street NW, Ste A
Auburn, WA 98001
P: 253-243-6172
F: 253-243-6194
Summit Sealants and Restoration Services Inc. proposal is based from its review of physical site conditions.
Reference of (construction drawings project # 1909) provided by M+S Architects; And our experience performing
similar scope of work. Please keep in mind exact stone details have not been provided and Should work reveal
hidden problems or defects, changes in cost and scope of work may be required.
Upon review and approval Summit Sealants and Restoration Services Inc. will submit all necessary schedules,
mock-ups, samples, technical data sheets etc.
Sincerely,
Summit Sealants and Restoration Services Inc.
Derek Reece
Derek Reece
Project Manager
970-901-6698
Derekr@summitsealants.com
148
1
REGULAR MEETING ASPEN CITY COUNCIL MARCH 23RD, 2021
At 5:00 p.m. Mayor Torre called the regular meeting to order with Councilors Richards, Mullins, Mesirow
and Hauenstein joining via video conference.
PUBLIC COMMENT:
Peter Fornell – Mr. Fornell said he would like to comment on the April 19
th appeal of 1020 E. Cooper.
Mayor Torre asked for City Attorney, James R. True, to comment on this.
Mr. True said the resolution they will pass later in the evening provides a process for public comment.
All comments should be submitted to the record until April 9
th at noon in writing prior to the meeting
and submitted to the clerk. We will not take public comment the night of the meeting, but only in
writing prior to the meeting.
Mayor Torre said we are making provisions for ex parte communications.
Councilor Mesirow asked if we are censoring or filtering.
Mr. True said it’s not our intention to do that,we just don’t want new facts submitted. We want the
factual record to remain as it is.
Mike Maple – Mr. Maple of 1250 Mountain View Drive said these COVID times are very strange and
there has been a lot of appropriate limitations on our rights and city services, but one of the services
being terminated again this year is the “spring cleanup”. He doesn’t see how this is a COVID risk
environment and would like to see it happen this year. It’s one of the best services provided to Aspen
citizens.
Mayor Torre said he also missed it last year as well, so we can take another look at this.
Peter Fornell – Mr. Fornell said that last week marks the second anniversary of the zoning officer writing
a letter to the owner of 851 Gibson writing a letter. We are two years into this now. He watched all
summer long with a dumpster in front of his house remodeling his property without a permit. It’s time
to take some action here.
Miller Ford – Mr. Ford said he is here under unfortunate circumstances reporting here on the mental
health issues of Aspen. He thanked council for their help. The meetings are running well. He thanked
Ward personally and Torre regarding the emails they sent to the churches. He said he was very active
with one of the candidates who ran in this last election regarding mental health issues. The candidate
didn’t win, but that’s the nature of politics. He would love to put out something on suicides in ski towns.
He asked council to help leave a legacy and save a life.
Councilor Hauensteinsaid that he will continue to work on this regardless of who won the election.
Councilor Richards said this will continue to be an on-going issue. She said for him to please be sure to
talk to the BOCC. The city is happy to help, but the county through the state is the designated entity for
dealing with mental health of the community. We are partners with them.
COUNCIL COMMENTS:
Councilor Mullins discussed the food tax refund and said she doesn’t see that it’s available in Spanish.
We should make sure to look into that. The other concern is that you can only do it online. She would
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2
REGULAR MEETING ASPEN CITY COUNCIL MARCH 23RD, 2021
like for it to be offered in person, so it is not discriminatory or inconvenient for anyone. She also
recognized the tragedy in Boulder. This speaks to mental health and gun control.
Councilor Richards saidour congressional rep has put out a statement. We need to think about where
this leads us legislatively on a bigger level. We won’t let a single sick individual dictate the law for all of
us.
Councilor Hauenstein reminded everyone, with Boulder in mind, to love without boundaries. The love
that we show each other is what is important.
Councilor Mesirow said he could see that King Sooper’s from where he lived in college. It’s all been said.
We all support doing what we can on all sides. This change ain’t coming from Washington. He said to
continue to be grateful and show up at the local level. His heart goes out to everyone in Boulder.
Mayor Torre said he is thinking about taking deep breaths and taking it all in. Today, there was a real
palpable tension today on the streets. Times are tense right now. Here in Aspen, we got news of moving
back to level orange. There are lots of issues people are dealing with. We were busy in March and still
are. A lot of people are suffering and having a lot of heartache. Please be smart and be safe. It’s not just
our visitors, our locals aren’t taking the full measures they need to in order to stay safe. He hears daily
complaints about individuals and business that aren’t in line with our guidelines right now. He’s hoping
to get community buy in to make a change. He said to stay calm, connected, and reach out to friends,
family, neighbors, etc. We’ll get through this.
CITY MANAGER COMMENTS:
Ms. Ott said the whole City of Aspen website can be translated into other languages and as for the food
tax issue, we do accept people as walk ins at the finance counter. It’s a manual process regardless, and
we’ll follow up on Spanish component.
BOARD REPORTS:
Councilor Richards said that the Club 20 Spring meeting is coming April 8th and 9th. There will be
discussion about whether or not to weigh in redistricting that is bubbling up around the state. Colorado
is slated to get one new district due to population growth.
Councilor Mesirow said he had APCHA where they approved Resolution #2, which contain regulation
changes and introduced our standards for sellers. This is a big important one. This will likely be over the
course of several meetings. He invites people to join in for APCHA meetings. They will also be touching
on compliance.
Mayor Torre said that next Tuesday he will return to ACRA.
CONSENT CALENDAR:
Mayor Torre mentioned the board appointment for the Wheeler Advisory Board and congratulated
Lauren Foreman. He thanked her for her application as well as the other applicants. Councilor Richards
pointed out that the candidates were great.
Councilor Richards motioned to approve the consent calendar; Councilor Mullins seconded.
Councilor Mesirow thanked Peter Grenney for his time and service on the board.
150
3
REGULAR MEETING ASPEN CITY COUNCIL MARCH 23RD, 2021
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
FIRST READING OF ORDINANCES:
Ordinance #08, Series of 2021 – 1001 Ute Avenue Minor Amendment to Project Review & 8040
Greenline Review – Kevin Rayes
Mr. Rayes shared his screen and introduced the item. He said that this council was present in 2019 when
there were some reviews to memorialize and rectify on this site. Ordinance 33 was approved at the
time, and all of those improvements have been made. This PD was broken into seven different parcels.
The request tonight is to land four TDR’s. There would be two TDR’s on lot 1 and two TDR’s on lot two in
order to increase development rights of each of these properties. Staff recommends denial of the
request. But because this is first reading, we are recommending approval to have the public hearing on
April 27th.
Councilor Mullins motioned to read Ordinance #08, Series of 2021; Councilor Richards seconded.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
City Clerk, Nicole Henning, read Ordinance #08.
Councilor Richards asked Chris Bendon why this request is coming through.
Mr. Bendon explained that there are some areas which are partially enclosed. These are two separate
ownerships, and both owners would like to fully enclose.
Mayor Torre said that one observation he had is regarding something in the packet. This is the first and
maybe only time that in our packet, underneath “dimensions”, the term, “sorta meh”, was used. It’s on
page 160 of the packet.
Councilor Mullins motioned to approve Ordinance #08, Series of 2021 on first reading; Councilor
Mesirow seconded.
Councilor Richards said she asked earlier about context of the broader city TDR program. The county
would give updates on what landed and price, etc. She said COMDEV recently provided to her a report
which states that 82 TDR’s have been severed from their properties. There are 35 out there that have
not yet landed.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
ACTION ITEMS:
Resolution #033, Series of 2021 – Rules for 1020 E. Cooper Appeal – James R. True
Mr. True said the City of Aspen attorney’s office has worked to come up with a process for the appeal at
1020 E. Cooper Ave. We’ve reached out to outside council to come up with a process because we want
to make sure all the rights are met. The code doesn’t speak to procedures in a public context. We have
allowed for council to set forth rules, and we want to make certain the public understands that the
applicant will address this in writing and that council would review arguments in opposition to the item.
There will be no public oral comment at that meeting, but those comments are due April 9
th by noon
and the hearing will be on April 19
th. Our recommendation isthat council approve this resolution.
151
4
REGULAR MEETING ASPEN CITY COUNCIL MARCH 23RD, 2021
Councilor Mesirow said they will be able to read the record, watch the HPC meeting and can read
written comments.
Mr. True said this is still a quasi-judicial decision on council’s part and ex parte discussion is not allowed.
Mayor Torre said council has been receiving some emails which have been forwarded to the city clerk
and Jim.
Councilor Richards motioned to approve Resolution #033, Series of 2021; Councilor Mullins seconded.
Mayor Torre thanked Jim because he pursued this out of virtue of this appeal being run in a fair manner.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
EXECUTIVE SESSION:
Mr. True introduced the executive session citing CRS 24-6-402 (4)(f) regarding the review of the city
attorney.
Councilor Hauenstein motioned to move into executive session; Councilor Richards seconded.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
_______________________________
City Clerk, Nicole Henning
152
MEMORANDUM
TO:MAYOR AND CITY COUNCIL
FROM: JAMES R. TRUE, CITY ATTORNEY
DATE: APRIL 8, 2021
MEETING DATE:APRIL 13, 2021
RE:ORDINANCE #9, SERIES OF 2021
Request of Council:To consider the adoption of Ordinance #9, which amends Ordinance #12,
Series of 2021, by extending the provisions therein regarding mandatory face coverings beyond
May 1, 2021.
Background:At a work session held on October 12, 2020, City Council discussed the
prospect of extending the provisions regarding face covering through the winter. The
provisions set forth in Ordinance #12, Series of 2020, were set to expire on November 4, 2020.
Based on that discussion, Council considered Ordinance #18, Series of 2020. Ordinance #18
amended the expiration date and extended the expiration until May 1, 2021.
At a work session held on March 22, 2021, City Council discussed the extension of the
expiration date beyond May 1, 2021. Based on such discussions and given Council’s schedule
prior to May 1st, the City Attorney’s Office determined that it would be prudent to bring
forward at this regular meeting an emergency ordinance that again amends Ordinance #12,
Series of 2020. Pursuant to Sec. 4.11 of the Aspen Municipal Charter, two meetings are
required to adopt an emergency ordinance, but neither is a public hearing and the first hearing
requires no prior public notice. Thus, this item is presented to you based on comments from
Council at the work session of March 22, 2021. The second reading is proposed for April 27,
2021.
Discussion:As noted above, provisions of Ordinance #12, Series of 2020, which amended
Ordinance #11, Series of 2020,and which was subsequently amended by Ordinance #18, Series
of 2020, are set to expire on May 1, 2021. Ordinance #9, Series of 2021, simply extends the
provisions of Ordinance #12, regarding mandatory face coverings, to June 7, 2021. At the work
session,no specific date was discussed for the extension. This date was picked to coincide with
the mandatory requirements adopted by Snowmass Village. The termination date can be
amended at first reading and revisited at Council’s discretion.
Recommendation:The City Attorney’s Office has no recommendation regarding Ordinance #9,
Series of 2021 which extends the application of Ordinance #12, Series of 2020, regarding
mandatory face coverings, until June 7, 2021.
153
ORDINANCE NO. 9
(SERIES OF 2021)
AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, AMENDING ORDINANCE #12, SERIES OF 2020, TO EXTEND
THE EFFECTIVE DATES OF THE PROVISIONS FOR FACE COVERING
REGULATIONS.
WHEREAS, the City of Aspen (the “City”) is a legally and regularly created, established,
organized and existing municipal corporation under the provisions of Article XX of the
Constitution of the State of Colorado and the home rule charter of the City (the “Charter”); and
WHEREAS, Section 4.11 of the Charter authorizes the City Council to enact emergency
ordinances for the preservation of public property, health, peace, or safety upon the unanimous
vote of City Council members present or upon a vote of four (4) Council members, whichever is
less; and
WHEREAS, the City of Aspen declared a local disaster emergency onMarch 12, 2020 pertaining
to the occurrence or imminent threat of widespread or severe damage, injury or loss of life or
property resulting from COVID-19; and
WHEREAS, the City of Aspen commenced and continues to support crisis response efforts,
through both personal and other resources; and
WHEREAS, pursuant to State and Local Public Health Orders, businesses have been allowed to
open to the public under strict guidelines for the health and safety of the public; and
WHEREAS, the Centers for Disease Control and Prevention recommends wearing face coverings
in public settings to prevent the spread of COVID-19; and
WHEREAS, the City Council proposes to amend the provisions of Ordinance #12 (Series of
2020) to extend the effective dates for provisions regarding the requirements for face covering
beyond the expiration date of May 1, 2021, as set forth in Ordinance #18 (Series of 2020); and
WHEREAS, failure of individuals and businesses to comply with public health guidelines can
jeopardize the health of the community as a whole and could require the reinstatement of stay at
home orders and the re-closing of all businesses leading to devastating economic impacts; and
WHEREAS, the City Council finds that it is appropriate and in the interests of the public health,
safety, and welfare and would further protect property and civil order, for the City Council to
adopt this amendment as an Emergency Ordinance.
154
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN
CITY THAT:
Section 1.
Section 2.6, Effective Date and Time, Limitations and Area, set forth in Section #1 of Ordinance #12,
Series of 2020, and which was amended by Ordinance #18, is hereby amended to read as follows:
The Public Health Order and all other provisions set forth in Section 1, of Ordinance #12,
Series of 2020, which amended Section 2, of Ordinance #11, Series of 2020, shall remain in
full force and effect until June 7, 2021. This Order is effective within the entirety of the
territory of the City of Aspen, Colorado.
Section 2.Emergency Declaration
It is hereby declared that, in the opinion of the City Council, an emergency exists; there is a need for
the preservation of public property, health, peace, or safety of the City of Aspen, its residents, and
guests; and, this ordinance and public health order adopted as an emergency ordinance provides the
protection of the health, peace and safety of the citizens of the City of Aspen.
Section 3.Publication.
The City Clerk is directed that publication of this ordinance shall be made as soon as practical and
no later than ten (10) days following final passage.
Section 4.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 5.Effective Date.
Except as otherwise set forth herein, pursuant to Sec.4.11 of the Aspen Municipal Charter, the
ordinance shall take effect and be in full force upon adoption of this ordinance by the affirmative
votes of at least four (4) members of the Aspen City Council or the unanimous vote of all City
Council members present
Section 6.Existing Litigation.
This ordinance shall not have any effect on existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances amended as herein
provided, and the same shall be construed and concluded under such prior ordinances.
155
INTRODUCED AND READ as provided by law as an emergency ordinance by the City
Council of the City of Aspen on the 13th day of April 2021.
________________________
Torre, Mayor
ATTEST:
NicoleHenning,CityClerk
FINALLYadopted,passedand approvedthis 27
th dayof April2021,by∎the unanimous vote of all City Council members present; or
a vote of four (4) council members.
_________________________
Torre, Mayor
ATTEST:
__________________________
Nicole Henning
156
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Sarah Yoon, Preservation Planner; Community Development
THROUGH: Phillip Supino, Community Development Director
MEMO DATE: April 5, 2021
MEETING DATE: April 13, 2021
RE: Ordinance No. 03, Series of 2021; 314 West Main Street - Establishment of
Transferable Development Rights (TDR), PUBLIC HEARING
Applicant:
314 West Main LLC, Wendi Sturgis,
Manager
Representative:
BendonAdams LLC
Location:
314 W. Main Street;
Lot B, Historic Landmark Lot Split at
320 W. Main Street, According to the
Final Plat Recorded September 3,
2003 in Plat Book 66 at Page 32, City
and Townsite of Aspen, Colorado.
Current Zoning & Use:
Mixed Use (MU); Residential Use.
Summary: The owners of 314 W.
Main Street propose to convert unused
floor area into three Transferable
Development Rights (TDRs).
Staff Recommendation: Staff
recommends City Council approve the
establishment of up to three TDRs, on
first reading
Vicinity Map – Aerial Image
314 W. Main Street, 1991
157
Page 2 of 4
Establishment of TDRs
314 W. Main Street
City Council 1st Reading
On March 9, 2021, City Council heard the request to establish Transferable Development Rights (TDRs)
for this site on first reading. At the meeting City Council asked the following question regarding the request:
1. Council asked for an overview of the City’s TDR program, specifically regarding the floor
area associated with each TDR, allowed landing sites, and a TDR purchaser’s rights. A TDR
certificate is calculated in increments of 250 square feet of floor area or 500 square feet of net
livable area. Landing sites for TDRs are detailed in Chapter 26.710 (Zone Districts). TDRs may be
sold, assigned, transferred, or conveyed. Under the direction of City Council, staff is in the process
of preparing an information only memo about the Transferable Development Rights (TDR) program.
2. Council asked if the appearance of 314 W. Main Street (the historic carriage house) was
changed and if the structure was moved from its original location on the lot. Exterior repair
and changes such as repainting the exterior of the historic carriage house have been made, but
the structure remains in its original location on the site and maintains its historic relationship with
the Smith-Elisha House on the adjacent lot.
3. Council asked if all the conditions outlined in Section 2 of Ordinance #14, Series of 2002
were met within the timeframe set forth in the ordinance. All required conditions in the
ordinance were met. Ordinance #14, Series of 2002 approved the request for a historic landmark
lot split on June 24, 2020. This approval included the granting of a 500 square foot floor area bonus
upon the completion of preservation related work on the principal historic structure at 320 W. Main
Street. The applicant worked with staff and completed the specified preservation work on the
principal structure prior to December 31, 2002.
4. Council asked where the 500 square foot floor area bonus was applied. At the time of the
historic landmark lot split, a 500 square foot floor area bonus was granted with the sole purpose of
allowing the historic Smith-Elisha home (320 W. Main Street) to remain in place. The approvals
clearly state, “the bonus is not being awarded to allow any expansion on the property.” No part of
this floor area bonus was used on 314 W. Main Street.
158
Page 3 of 4
Establishment of TDRs
314 W. Main Street
REQUEST OF COUNCIL: The Applicant is requesting the following approval from City Council.
• Transferable Development Rights (Section 26.535) for the establishment of three TDRs,
representing remaining residential development allowed on this historic lot. The Historic
Preservation Commission is a recommending body and Aspen City Council is the final review
authority.
SUMMARY AND BACKGROUND: 314 West Main Street is a designated landmark property that qualifies
for the preservation benefit to sever unused development rights from the parcel by establishing TDRs in
increments of 250 square feet. The applicant proposes to remove all but 45.16 square feet of the remaining
residential development rights left on the property in the form of Transferable Development Rights (TDRs).
For the purpose of establishing TDRs, the applicant is required to determine the maximum allowable floor
area for residential development on the parcel and determine the remaining unused floor area. All
calculations must be verified by Zoning prior to the issuance of TDR certificates.
Background
314 West Main Street is a 4,500 square foot lot that was created through a Historic Landmark Lot Split via
Ordinance #14, Series of 2002. 314 W. Main Street contains the historic carriage house that is associated
with the Smith-Elisha House on the adjacent lot addressed 320 W. Main Street. It is the lot with the carriage
house that seeks to create TDRs.
Although this is a 4,500 square foot lot, slope deductions reduce the final net lot area to 3,431.24 square
feet. The maximum floor area for a single-family dwelling for the purposes of creating TDRs is
approximately 2,520 square feet. According to the as-built survey provided in the application, the floor
area calculations are as follows:
• Allowable Floor Area = 2,520.4 square feet
• Existing Floor Area = 1,725.24 square feet
• Total Floor Area Remaining = 795.16 square feet
The remaining floor area may be converted into three TDRs, which will consume all but 45.16 square feet
of allowed development rights on the site.
HPC Meeting Summary
The Historic Preservation Commission (HPC) met on February 24, 2021 to discuss the application for
establishing three TDRs. The establishment of TDRs is encouraged because it removes development
rights from the property which prevents the increase of additional mass and scale to the historic resource.
HPC voted unanimously (4-0) in favor of the proposed request.
Both Historic Preservation staff and the HPC recommend City Council approve the establishment of three
TDRs. See Exhibit B – HPC draft meeting minutes for more details.
DISCUSSION:
The standard of review for the establishment of TDRs is in Section 26.535.070 of the Land Use Code. The
applicant demonstrates the existence of unused development rights exceeding 250 square feet of floor
area on the parcel. Underlying zoning permits the use of single-family residential, and the code allows for
TDRs to be calculated using 100% of the maximum allowable floor area. The severing of development
rights will not create any non-conforming uses or structures on this site. Once the TDRs are created the
applicant plans to comply with the required steps of executing and delivering a deed restriction. A draft
deed restriction was submitted with the application. In addition, the applicant agrees to disclose information
159
Page 4 of 4
Establishment of TDRs
314 W. Main Street
related to the sale, assignment, conveyance or other transfer/change of ownership of the TDRs to the City
of Aspen Community Development Department within five days of the transaction. Staff finds the criteria
for establishing TDRs are met. (See Exhibit A for review criteria and staff findings.)
FINANCIAL IMPACTS: N/A
ENVIRONMENTAL IMPACTS: N/A
ALTERNATIVES: N/A
RECOMMENDATIONS:
Staff and the HPC recommends approval of Ordinance No. 03, Series of 2021 on Second Reading.
Recommended Motion
“I move to adopt Ordinance No. 03, Series of 2021.”
CITY MANAGER COMMENTS:
___________________________________________________________________________________
___________________________________________________________________________________
___________________________________________________________________________________
___________________________________________________________________________________.
EXHIBITS:
A – TDR Review Criteria & Staff Findings
B – HPC Meeting Minutes from February 24, 2021
C – Land Use Application
160
Ordinance No. 03, Series of 2021
314 West Main Street
Page 1 of 3
ORDINANCE NO. 03
(SERIES OF 2021)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING THE
ESTABLISHMENT OF TRANSFERABLE DEVELOPMENT RIGHTS FOR THE
PROPERTY LOCATED AT 314 WEST MAIN STREET, LOT B, HISTORIC
LANDMARK LOT SPLIT AT 320 WEST MAIN STREET, ACCORDING TO THE
FINAL PLAT RECORDED SEPTEMBER 3, 2003 IN PLAT BOOK 66 AT PAGE 32,
CITY AND TOWNSITE OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO
PARCEL ID: 2735-124-41-011
WHEREAS, the Community Development Department received an application from the
applicants, 314 West Main LLC, represented by BendonAdams LLC, for the property located at
314 West Main Street, Lot B, Historic Landmark Lot Split at 320 West Main Street, according to
the Final Plat Recorded September 3, 2003 in Plat Book 66 at Page 32, City and Townsite of
Aspen, Colorado, requesting approval for the following:
• Transferable Development Rights (TDR) - Section 26.535 for the establishment of up to
three (3) TDRs, representing the remaining residential development allowed on this
historic parcel.
WHEREAS, the Community Development Department reviewed the proposed
application, found that the review standards were met, and recommended in favor of establishing
three (3) TDRs for this site; and
WHEREAS, the Historic Preservation Commission reviewed the application on
February 24, 2021, during which the recommendations of the Community Development
Department were heard by the Historic Preservation Commission (HPC), and the Commission
recommended in favor of the establishment of up to three (3) TDRs through Resolution #05,
Series of 2021, by a vote of four to zero (4 – 0).
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 recommendations of the Community Development Director and the Historic Preservation
Commission; and,
WHEREAS, on March 9, 2021, the Aspen City Council approved Ordinance No. 03,
Series of 2021, on First Reading; and,
WHEREAS, during a duly noticed public hearing on April 13, 2021, the Aspen City
Council approved Ordinance No. 03, Series of 2021, on Second Reading by a ____ to ____ ( __ –
__ ) vote, approving the establishment of up to three (3) TDRs; and,
WHEREAS, City Council finds that the development proposal meets or exceeds all the
applicable development standards; and,
161
Ordinance No. 03, Series of 2021
314 West Main Street
Page 2 of 3
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 OF ASPEN CITY COUNCIL
AS FOLLOWS:
Section 1: Transferable Development Rights (TDR)
Pursuant to the findings set forth above, the City Council does hereby authorize the creation of up to
three (3) TDRs from the 314 West Main Street with the following conditions:
1. Commencing with the severing of the first TDR from the property, the maximum floor area for
all development on the lot shall be 2,520.4 square feet minus 250 square feet for each TDR
Certificate issued.
2. Upon satisfaction of all requirements, the City and the applicant shall establish a date on which
the respective Historic TDR Certificates shall be validated and issued by the City and a deed
restriction on the property shall be accepted by the City and filed with the Pitkin County Clerk
and Recorder. The property owner may decide when and if, as warranted by the TDR market,
the development rights will be converted into certificates and sold.
3. On the mutually agreed upon date, the Mayor of the City of Aspen shall execute and deliver
the applicable number of Historic TDR Certificates on the property owner and the property
owner shall execute and deliver a deed restriction lessening the available development right of
the Sending Site by 250 square feet per TDR issued together with the appropriate fee for
recording the deed restriction with the Pitkin County Clerk and Recorder’s Office.
4. All calculations shall be verified by The City prior to the issuance of Historic TDR
Certificates.
Section 2: Existing Litigation
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 3: Severability
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 4: Public Hearing
A duly noticed public hearing on this Ordinance was held on the 13th day of April, 2021 at 5:00 PM
in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISED as provided by law, by the City
Council of the City of Aspen on the 9th day of March, 2021.
162
Ordinance No. 03, Series of 2021
314 West Main Street
Page 3 of 3
Attest: Approved as to content:
____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
FINALLY, adopted, passed and approved this _____ day of __________, 2021.
Approved as to form: Approved as to content:
____________________________ ____________________________
James R. True, City Attorney Torre, Mayor
Attest:
____________________________
Nicole Henning, City Clerk
163
Page 1 of 3
Exhibit A
Transferable Development Rights Criteria
Staff Findings
Section 26.535.070
A historic TDR certificate may be established by the Mayor if the City Council, pursuant to adoption
of an ordinance, finds all the following standards met:
A. The sending site is a historic landmark on which the development of a single-family or
duplex residence is a permitted use, pursuant to Chapter 26.710, Zone Districts. Properties
on which such development is a conditional use shall not be eligible.
Staff Findings: 314 W. Main is a designated historic landmark that is an eligible
sending site that can establish and sever transferable development rights (TDRs).
Single-family residential and duplex development are permitted uses in the Mixed
Use (MU) zone district. Staff finds this criterion is met.
B. It is demonstrated that the sending site has permitted unbuilt development rights, for either
a single-family or duplex home, equaling or exceeding two hundred and fifty (250) square
feet of floor area multiplied by the number of historic TDR certificates requested.
Staff Findings: For the purposes of calculating TDRs, the maximum allowable floor
area for a single-family home on a 3,431.24 square foot lot is approximately 2,520.4
square feet. The applicant has provided as-built calculations indicating that 795.16
square feet of unbuilt floor area remains on the lot, which will result in a total of three
TDRs and 45.16 square feet remaining. Final floor area calculations shall be verified
by the City’s Zoning Department prior to issuance. Staff finds this criterion is met.
C. It is demonstrated that the establishment of TDR certificates will not create a
nonconformity. In cases where a nonconformity already exists, the action shall not increase
the specific nonconformity.
Staff Findings: The creation of TDRs will not create or increase a nonconformity.
Staff finds this criterion is met.
D. The analysis of unbuilt development right shall only include the actual built development,
any approved development order, the allowable development right prescribed by zoning
for a single-family or duplex residence, and shall not include the potential of the sending
site to gain floor area bonuses, exemptions or similar potential development incentives.
Properties in the MU Zone District which do not currently contain a single-family home or
duplex established prior to the adoption of Ordinance #7, Series of 2005, shall be permitted
to base the calculation of TDRs on 100% of the allowable floor area on an equivalent-sized
lot in the R-6 zone district. This is only for the purpose of creating TDRs and does not
164
Page 2 of 3
permit the on-site development of 100% of the allowable floor area on an equivalent-sized
lot in the R-6 zone district. If the additional 20% of allowable floor area exceeds 500 square
feet, the applicant may not request a floor area bonus from HPC at any time in the future.
Any development order to develop floor area, beyond that remaining legally connected to
the property after establishment of TDR Certificates, shall be considered null and void.
Staff Findings: This criterion allows for properties in the MU zone district to
calculate TDRs by using 100% of the allowable floor area for a single-family home.
The applicant is calculating 2,520.4 square feet as the maximum allowable floor area
for this lot. Staff finds that this criterion is met.
E. The proposed deed restriction permanently restricts the maximum development of the
property (the sending site) to an allowable floor area not exceeding the allowance for a
single-family or duplex residence minus two hundred and fifty (250) square feet of floor
area multiplied by the number of historic TDR certificates established.
For properties with multiple or unlimited floor areas for certain types of allowed uses,
the maximum development of the property, independent of the established property
use, shall be the floor area of a single-family or duplex residence (whichever is
permitted) minus two hundred fifty (250) square feet of floor area multiplies by the
number of historic TDR certificates established.
The deed restriction shall not stipulate an absolute floor area, but shall stipulate a
square footage reduction from the allowable floor area for a single-family or duplex
residence, as may be amended from time to time. The sending site shall remain eligible
for certain floor area incentives and/or exemptions as may be authorized by the City
Land Use Code, as may be amended from time to time. The form of the deed restriction
shall be acceptable to the City Attorney.
Staff Findings: At the point of issuing a TDR certificate, the applicant will be required
to file a deed restriction that will permanently reduce the allowable floor area by 250
square feet. All documents shall be reviewed by the City Attorney prior to execution.
F. A real estate closing has been scheduled at which, upon satisfaction of all relevant
requirements, the City shall execute and deliver the applicable number of historic TDR
certificates to the sending site property owner and that property owner shall execute and
deliver a deed restriction lessening the available development right of the subject property
together with the appropriate fee for recording the deed restriction with the County Clerk
and Recorder's office.
Staff Findings: This is a mandatory process that the applicant must pursue.
165
Page 3 of 3
G. It shall be the responsibility of the sending site property owner to provide building plans
and a zoning analysis of the sending site to the satisfaction of the Community Development
Director. Certain review fees may be required for the confirmation of built floor area.
Staff Findings: The applicant has provided detailed floor area calculations as part of
the proposal. Final calculations shall be reviewed by The City prior to the issuance
of the TDR certificate.
H. The sale, assignment, conveyance or other transfer or change in ownership of transferable
development rights certificates shall be recorded in the real estate records of the Pitkin
County Clerk and Recorder and must be reported by the grantor to the City of Aspen
Community Development Department within five (5) days of such transfer. The report of
such transfer shall disclose the certificate number, the grantor, the grantee and the total
value of the consideration paid for the certificate. Failure to timely or accurately report such
transfer shall not render the transferable development right certificate void.
Staff Findings: This is a mandatory process that the applicant must pursue.
I. TDR certificates may be issued at the pace preferred by the property owner.
Staff Findings: N/A
J. City Council may find that the creation of TDRs is not the best preservation solution for the
affected historic resource and deny the application to create TDRs. HPC shall provide
Council with a recommendation.
Staff Findings: The applicant is requesting HPC recommend in favor of establishing
up to three (3) TDRs with this application. HPC is a recommending body and City
Council is the final authority for granting the TDR request.
166
REGULAR MEETING HISTORIC PRESERVATION COMMISSION FEBRUARY 24,2021
Chairperson Thompson opened the meeting at 4:30 p.m.
Commissioners in attendance: Kara Thompson, Scott Kendrick, Roger Moyer, Jeff Halferty,
Sheri Sanzone
Commissioners not in attendance:
Staff present:
Amy Simon, Planning Director
Sarah Yoon, Historic Preservation Planner
Michelle Bonfils Thibeault, Planner II
Kate Johnson, Assistant City Attorney
Wes Graham, Deputy City Clerk
APPROVAL OF MINUTES: None
PUBLIC COMMENT: None
COMMISSIONER COMMENTS: None
DISCLOSURE OF CONFLICT: Ms. Sanzone is conflicted on 314 West Main - TDR
Referral.
PROJECT MONITORING: Ms. Simon stated she will be reaching out to Mr. Moyer about a
landscaping update regarding the log cabin on Main St.
CERTIFICATE OF NO NEGATIVE EFFECT: None
STAFF COMMENTS: Ms. Simon stated that they received an appeal from the applicant of
1020 E. Cooper regarding the decision on the affordable housing proposal.
Ms. Simon said that the Aspen Daily News will be running an article encouraging individuals to
volunteer on the HPC board.
CALL UPS: Ms. Yoon stated that she did take an item to City Council for call up notice 925
King street. She said it was not called up and City Council upheld HPC’s decision.
OLD BUSINESS: None
NEW BUSINESS: 212 N Monarch - TDR Referral. Alan Richman representing owners.
Mr. Richman stated that the owners have owned the property for 49 years, they've lived in the
property all that time and maintained it.
Mr. Richman said that the owner asked for an evaluation of the property to see if there was any
unused floor area that could be extinguished with one or more TDRs. Mr. Richman stated that
they discovered 626 sq ft. of unused floor area, which allows for two TDRs and is being
requested. He explained that the owner’s intent is to sell those TDRs and establish a trust for the
children of the family which will keep the property in the family for the long term.
STAFF COMMENTS: Ms. Thibeau stated that the allowable floor area for a 5,256sf lot is
3,031sf and the existing floor area is 2,405sf with a remaining floor area of 626sf which allows 2
TDRs. Ms. Thibeau stated that the staff supports the application.
Mr. Kendrick moved to approve Resolution #04-2021; Ms. Sanzone seconded.
ROLL CALL: Mr. Halfery, Yes; Ms. Thompson, Yes; Mr. Kendrick, Yes; Mr. Moyer, Yes; Ms.
Sanzone, Yes.
Ms. Sanzone left the meeting.
NEW BUSINESS: 314 West Main - TDR Referral. Sara Adams with BendonAdams.
Ms. Adams stated that she is representing the owners of the carriage house Smith, Elijah carriage
house located at 314, West main street. She said the property was built in 1890 and in 2002, the
167
REGULAR MEETING HISTORIC PRESERVATION COMMISSION FEBRUARY 24,2021
9000sf. the lot was split into 2 properties. There's a 4500-sf. the lot that contains the main Queen
Ann style Victorian. The other lot is the subject of the TDR application for the carriage house.
Ms. Adams showed a site plan that depicted show you all the undeveloped area in front of the
carriage house. She said to maintain the relationship between the primary Queen Ann style
Victorian and carriage house the request for TDRs will essentially sterilize any development on
this property. Ms. Adams said that the 2,520.7 sf allowable FAR, the built FAR is 1,725.3 and
the unused FAR is 795.4 equaling 3 TDRs leaving 45.4 sf of FAR.
STAFF COMMENTS: Ms. Yoon stated that this is a recommendation to the City Council for
the establishment of TDRs. Ms. Yoon reviewed the history of the historic lot. She said that the
final floor area numbers will be verified prior to any issuance. Ms. Yoon said that there can be
795.16 sf. severed from this property in the form of 3 TDRs with 45.16 sf. remaining on the lot.
Ms. Yoon stated that staff is in support of the recommendation of the establishment of 3 TDRs.
Ms. Thompson stated that it is great to get the square footage off the front of the property. She
added she would not want to see anything built in front of the resource.
Mr. Moyer moved to approve Resolution #05-2021; Ms. Thompson seconded.
ROLL CALL: Mr. Halfery, Yes; Ms. Thompson, Yes; Mr. Kendrick, Yes; Mr. Moyer, Yes.
Ms. Sanzone returned to the meeting.
NEW BUSINESS: 227 East Bleeker Street - Final Major Development. Kim Raymond
Architecture + Interiors.
Ms. Raymond reviewed what was presented at the December 9th hearing. She showed the site
plan and landscape that include mostly grass in the front, flowerbeds, and a narrowed walkway
leading to the historic resource. Ms. Raymond said that the lilac bushes cannot be saved where
they stand now and will be relocated next to the transformer or in front of the paved parking
spot. She stated that they drop the plate height 8” to address the massing concern, however, the
civil engineer had to lift the new addition creating only a few inches difference of plate height.
Ms. Raymond stated that there is still a concern with the storm tech plan and this can be worked
out with staff and monitor. She said the preservation plan will be submitted soon. She said that in
the staff memo there was concern about the skylight and window not having enough separation,
she explained they added a thicker trim to separate. Ms. Raymond stated that they can add
thicker trim to all the gable overhang to relate to the historic cabin. She said that there is great
detail going into the preservation and restoration of the front open porch using historic pictures
and samples. Ms. Raymond said that they will work with the monitor regarding the renovations
of the historic chimney. She said that the skirting will be 6 inches of concrete. Ms. Raymond
outlined the materials that will be used on the historic structure and new addition. She adds that
there will be added louver to the second-floor deck on the addition for privacy. Ms. Raymond
said that they are not sure where the downspouts will go at this time, that this could be worked
with the monitor.
Ms. Thompson asked how large will the pavers be in the rain garden and the height of the pavers
to the grass.
Ms. Raymond stated that there will only be a few pavers and will be a 6-inch step-down.
Ms. Thompson asked what will the material be for the front porch steps.
Ms. Raymond said they will be using wood.
Ms. Thompson asked what material will be used on top of the linking element.
Ms. Raymond said that it will be TPO material.
Mr. Halferty asked what material will be used for the skirt.
168
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
November 6, 2020
Community Development Department
City of Aspen
130 So. Galena St.
Aspen, Colorado 81611
RE: 314 West Main Street – Establishment of Transferrable Development Right
Certificates
Aspen City Council, Historic Preservation Commission,
and Community Development:
Please accept this application to establish
transferrable development right certificates
(TDRs) at 314 West Main Street.
The 314 building is a locally designated historic
carriage house associated with Smith Elisha
House at 320 W. Main St. A lot split was approved
via Ordinance 14, 2002, separating ownership of
the two parcels. A lot split plat was filed with the
Pitkin County Clerk in 2003 as reception no.
487835. The 314 building, at the time of the lot
split application, was represented as having
commercial office use on the ground floor with
residential use above. In 2019 HPC and Planning
Staff approved a minor development application
and change in use to single family residential via
Resolution 19-2019.
314 W. Main Street
The property is legally described as Lot B, Historic Landmark Lot Split at 320 W. Main Street, according to
the final plat recorded September 3, 2003, in plat book 66, page 32. The property is owned by 314 West
Main LLC, a Colorado Limited Liability Company. Wendi Sturgis is the Manager for 314 and has authorized
BendonAdams to submit this application.
The applicant respectfully requests approval to remove the unbuilt floor area from the property in the form
of 3 TDRs equal to 750 sf of floor area. Removal of unbuilt floor area sterilizes the development potential
169
for the property. The existing home comprises 1,725.3 sf of floor area out of a maximum allowable of
2,520.7sf of floor area.
This property is a great example for the historic TDR program. The carriage house and main Smith Elisha
house are on separate lots; however, the relationship between the two buildings remains intact which is
rare in Aspen. The 2003 lot split recognized the importance of the connection between the main Victorian
era building and the subordinate carriage house by prohibiting certain improvements, for example a
walkway to the carriage house from Main Street, that would represent the carriage house as its own entity.
Response to review criteria and the necessary documents for a complete application are attached. Please
let us know if there are additional items needed for your review or if we can assist with a site visit.
Kind Regards,
Sara Adams, AICP
BendonAdams LLC
1. TDR Review Criteria
1.a Acknowledgement of TDR creation
1.b Draft TDR Agreement
2. Application Form
3. Pre-Application Summary
4. Agreement to Pay
5. HOA Form
6. Authorization to Represent
7. Proof of Ownership
8. Vicinity Map
9. Survey & Existing Plans
10. Ord. 14-2002
11. Recorded Historic Landmark Lot Split Plat
12. 2019 Change in use approval
170
Exhibit 1
Review Criteria
Exhibit 1
Review Criteria
314 West Main - TDRs
Sec. 26.535.070. - Review criteria for establishment of a historic transferable development right.
A historic TDR certificate may be established by the Mayor if the City Council, pursuant to adoption of an
ordinance, finds all the following standards met.
(a) The sending site is a historic landmark on which the development of a single-family or duplex
residence is a permitted use, pursuant to Chapter 26.710, Zone Districts. Properties on which such
development is a conditional use shall not be eligible.
Response – 314 West Main Street is currently a single family home located in the Mixed Use Zone
District, which permits single family and duplex residential uses.
(b) It is demonstrated that the sending site has permitted unbuilt development rights, for either a
single-family or duplex home, equaling or exceeding two hundred and fifty (250) square feet of
floor area multiplied by the number of historic TDR certificates requested.
Response – The allowable floor area for a single family home on the subject property is 2,520.4 sf and
a total of 1,725.24 sf of floor area exists. 795.16 sf of allowable floor area is unused on the subject
property, which equals 3 TDR certificates. There will be no available floor area left on the property
(refer to criteria d below).
(c) It is demonstrated that the establishment of TDR certificates will not create a nonconformity. In
cases where a nonconformity already exists, the action shall not increase the specific
nonconformity.
Response – A nonconformity is not created or increased as part of this request.
(d) The analysis of unbuilt development right shall only include the actual built development, any
approved development order, the allowable development right prescribed by zoning for a single-
family or duplex residence, and shall not include the potential of the sending site to gain floor area
bonuses, exemptions or similar potential development incentives. Properties in the MU Zone
District which do not currently contain a single-family home or duplex established prior to the
adoption of Ordinance #7, Series of 2005, shall be permitted to base the calculation of TDRs on
one hundred percent (100%) of the allowable floor area on an equivalent-sized lot in the R-6 zone
district. This is only for the purpose of creating TDRs and does not permit the on-site development
of one hundred percent (100%) of the allowable floor area on an equivalent-sized lot in the R-6
zone district. If the additional twenty percent (20%) of allowable floor area exceeds five hundred
(500) square feet, the applicant may not request a floor area bonus from HPC at any time in the
future. Any development order to develop floor area, beyond that remaining legally connected to
the property after establishment of TDR Certificates, shall be considered null and void.
Response - The allowable floor area for a single family home on the subject property is 2,520.4 sf and
a total of 1,725.24 sf of floor area exists. 795.16 sf of allowable floor area is unused on the subject
property, which equals 3 TDR certificates.
The allowable floor area is calculated based on 100% of the allowable floor area on an equivalent sized
lot in the R-6 Zone District. The single family home was established after Ordinance 7, Series of 2005
and therefore is eligible for 100% of the allowable floor area as noted above.
171
Exhibit 1
Review Criteria
Exhibit 1
Review Criteria
314 West Main - TDRs
(e) The proposed deed restriction permanently restricts the maximum development of the property
(the sending site) to an allowable floor area not exceeding the allowance for a single-family or
duplex residence minus two hundred and fifty (250) square feet of floor area multiplied by the
number of historic TDR certificates established.
For properties with multiple or unlimited floor areas for certain types of allowed uses, the
maximum development of the property, independent of the established property use, shall be
the floor area of a single-family or duplex residence (whichever is permitted) minus two hundred
fifty (250) square feet of floor area multiplies by the number of historic TDR certificates
established.
The deed restriction shall not stipulate an absolute floor area, but shall stipulate a square footage
reduction from the allowable floor area for a single-family or duplex residence, as may be
amended from time to time. The sending site shall remain eligible for certain floor area incentives
and/or exemptions as may be authorized by the City Land Use Code, as may be amended from
time to time. The form of the deed restriction shall be acceptable to the City Attorney.
Response – A draft deed restriction is included in the application for review. It is understood that the
property owner may elect to sever up to three TDR certificates and is not obligated to sever all three
TDRs. It is also understood that floor area equal to the number of TDRs issued is permanently severed
from the property upon the recordation of the deed restriction, and not upon approval of an ordinance.
(f) A real estate closing has been scheduled at which, upon satisfaction of all relevant
requirements, the City shall execute and deliver the applicable number of historic TDR certificates
to the sending site property owner and that property owner shall execute and deliver a deed
restriction lessening the available development right of the subject property together with the
appropriate fee for recording the deed restriction with the County Clerk and Recorder's office.
Response – n/a.
(g) It shall be the responsibility of the sending site property owner to provide building plans and a
zoning analysis of the sending site to the satisfaction of the Community Development Director.
Certain review fees may be required for the confirmation of built floor area.
Response – Please refer to Exhibit 9 for a zoning analysis.
(h) The sale, assignment, conveyance or other transfer or change in ownership of transferable
development rights certificates shall be recorded in the real estate records of the Pitkin County
Clerk and Recorder and must be reported by the grantor to the City of Aspen Community
Development Department within five (5) days of such transfer. The report of such transfer shall
disclose the certificate number, the grantor, the grantee and the total value of the consideration
paid for the certificate. Failure to timely or accurately report such transfer shall not render the
transferable development right certificate void.
Response – n/a.
172
Exhibit 1
Review Criteria
Exhibit 1
Review Criteria
314 West Main - TDRs
(i) TDR certificates may be issued at the pace preferred by the property owner.
Response – It is understood that the property owner may elect to sever up to three TDR certificates and
is not obligated to sever all three TDRs. It is also understood that floor area equal to the number of
TDRs issued is permanently severed from the property upon the recordation of the deed restriction,
and not upon approval of an ordinance.
(j) City Council may find that the creation of TDRs is not the best preservation solution for the
affected historic resource and deny the application to create TDRs. HPC shall provide Council with
a recommendation.
Response – n/a.
173
174
1
DEED RESTRICTION AND AGREEMENT FOR ESTABLISHMENT OF A
HISTORIC TRANSFERABLE DEVELOPMENT RIGHT
PURSUANT TO ASPEN CITY COUNCIL
ORDINANCE #___ , SERIES OF 20__
THIS DEED RESTRICTION AND AGREEMENT is made and entered into this _____
day of ______________, 20__, by 314 West Main LLC, (hereinafter referred to as “Owner”),
whose address is 314 West Main Street, Lot B of the Historic Landmark Lot Split at 320 W. Main
Street, and The City of Aspen, a body politic and corporate pursuant to its Home-Rule Charter
and the Constitution of the State of Colorado, acting through its City Council, (hereinafter the
“City”);
WITNESSETH
WHEREAS, Owner owns real property more specifically described as; Lot B of the
Historic Landmark Lot Split at 320 W. Main Street, Parcel ID 2735-124-41-011, Pitkin County,
Colorado, (hereinafter referred to as “Real Property”), which Real Property is designated as a
Historic Site, as such are defined in the City of Aspen Land Use Code (“City Code”); and
WHEREAS, Owner has submitted an affidavit, duly notarized, in compliance with
Section 26.535.090.A.2 of the City Code, and supplied the necessary application materials
identified in Section 26.535.090 showing compliance with the criteria set forth in Section
26.535.070 of the City Code; and
WHEREAS, The Community Development Department has reviewed Owner’s
application according to the review standards identified in 26.535.070 of the City Code, and has
recommended approval of the application and the establishment of up to three (3) approved
Historic TDR Certificates as set forth herein; and
WHEREAS, City Council Ordinance #____, Series of 20___ (the “Ordinance”) was
approved on ___(date)__________, establishing the above referenced Historic TDR Certificates,
and requiring that a Deed Restriction be recorded in real property records of Pitkin County,
designating the Real Property as a Sending Site and permanently restricting the development of
the Real Property (the Sending Site) to an allowable Floor Area not exceeding the allowance for
a single-family residence or duplex if allowed, minus two hundred and fifty (250) square feet of
Floor Area multiplied by the number of Historic TDR Certificates established; and
WHEREAS, in consideration of the establishment of one (1), or the first of three (3),
second of three (3), or the third of three (3). Historic TDR Certificates pursuant to the
Ordinance and City Code, Owner agrees to restrict the Real Property as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and obligations contained
herein, Owner and the City hereby covenant and agree as follows:
1. Development of the Real Property (the Sending Site) is hereby permanently
restricted to an allowable Floor Area not exceeding the allowance for a single-
175
2
family residence or duplex as otherwise permitted by the City Code on the Real
Property, minus any deductions resulting from previous issuance of TDR
certificate(s) and minus 250 square feet, that being two hundred fifty (250) square
feet of Floor Area multiplied by the one (1) Historic TDR Certificate hereby
established.
2. The property owner may elect to sever up to three (3) TDR certificates from the
property and is not required by Ordinance # ___, Series of 2021 to sever all three
TDR certificates. The property owner, at their sole discretion, may elect to sever
no TDRs, one (1) TDR, two (2) TDRs, or three (3) TDRs from the property.
3. In consideration of the foregoing, and pursuant to the City Code and the
Ordinance, the City shall cause the issuance of one (1) Historic TDR Certificate,
executed by the Mayor, allowing the transfer of development rights to a Receiver
Site to be determined pursuant to the City Code. This Historic TDR Certificate
may be sold, assigned, transferred, or conveyed. Transfer of title shall be
evidenced by an assignment of ownership on the actual certificate document.
Upon transfer, the new owner may request the City re-issue the certificate
acknowledging the new owner. Reissuance shall not require adoption of a new
ordinance. The market for such Historic TDR Certificates shall remain
unrestricted and the City shall not prescribe or guarantee the monetary value of
any Historic TDR Certificates.
4. This deed restriction shall not be construed to stipulate an absolute Floor Area on
the Real Property, but only a square footage reduction from the allowable Floor
Area, as that allowable Floor Area may be amended from time to time.
5. The Real Property (Sending Site) shall remain eligible for Floor Area incentives
and/or exemptions as may be authorized by the City Code, as it may be amended
from time to time.
6. This restriction may be modified only in a writing signed by both the Owner and
the City.
7. Unless modified as stated above, this Agreement shall constitute a covenant
running with the Real Property as a burden thereon for the benefit of, and shall be
specifically enforceable by, the City Council of the City of Aspen by any
appropriate legal action including, but not limited to, injunction or abatement.
[SIGNATURES ON FOLLOWING PAGES]
176
3
IN WITNESS HEREOF, the parties hereto have executed this instrument on the date and
year above first written.
OWNER:
By:___________________________
Wendi Sturgis, 314 West Main LLC, a Colorado limited liability company
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this ________ day of
______________, 20___, by ___________
Witness my hand and official seal.
My commission expires:___________________
_____________________________
Notary Public
177
4
APPROVAL OF CITY ATTORNEY
By:___________________________
James R. True, City Attorney
THE CITY OF ASPEN, COLORADO
a body politic and corporate pursuant to
its Home-Rule Charter and the Constitution of the State of Colorado
By:____________________________ Date:______________
Torre, Mayor
STATE OF COLORADO )
)ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this _____ day of
_________________, 20__, by_____________, as Mayor of the City of Aspen, Colorado.
Witness my hand and official seal.
My commission expires:___________________
_____________________________
Notary Public
178
November 2017 City of Aspen|130 S. Galena St.|(970) 920 5090
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE APPLICATION
Project Name and Address:_________________________________________________________________________
Parcel ID # (REQUIRED) _____________________________
APPLICANT:
Name: ______________________________________________________________________________________________
Address: _______________________________________________________________________________________________
Phone #: ___________________________ email: __________________________________
REPRESENTIVATIVE:
Name: _________________________________________________________________________________________________
Address:________________________________________________________________________________________________
Phone#: _____________________________ email:___________________________________
Description: Existing and Proposed Conditions
Review: Board Review
Have you included the following?FEES DUE: $ ______________
Pre-Application Conference Summary
Signed Fee Agreement
HOA Compliance form
All items listed in checklist on PreApplication Conference Summary
Growth Management Quota System (GMQS) required fields:
Net Leasable square footage _________ Lodge Pillows______ Free Market dwelling units ______
Affordable Housing dwelling units_____ Essential Public Facility square footage ________
Establish 3 TDRs. No physical improvements proposed.
314 West Main LLC; Wendi Sturgis, Manager
BendonAdams
(existing)
Required Land Use Review(s):
Establish TDRs
179
City of Aspen Community Development Department
Aspen Historic Preservation Land Use Packet
City of Aspen|130 S. Galena Street.| (970) 920 5090 Historic Land Use Application Requirements, Updated: March 2016
General Information
Please check the appropriate boxes below and submit this page along with your application. This
information will help us review your plans and, if necessary, coordinate with other agencies that
may be involved.
YES NO
Does the work you are planning include exterior work; including additions, demolitions,
new construction, remodeling, rehabilitation or restoration?
Does the work you are planning include interior work, including remodeling,
rehabilitation, or restoration?
Do you plan other future changes or improvements that could be reviewed at this time?
In addition to City of Aspen approval for a Certificate of Appropriateness or No Negative
Effect and a building permit, are you seeking to meet the Secretary of the Interior’s
Standards for Rehabilitation or restoration of a National Register of Historic Places
Property in order to qualify for state or federal tax credits?
If yes, are you seeking federal rehabilitation investment tax credits in
Conjunction with this project? (Only income producing properties listed
on the National Register are eligible. Owner-occupied residential
properties are not.)
If yes, are you seeking the Colorado State Income Tax Credit for
Historical Preservation?
Please check all City of Aspen Historic Preservation Benefits which you plan to use:
Rehabilitation Loan Fund Conservation Easement Program Dimensional Variances
Increased Density Historic Landmark Lot Split Waiver of Park Dedication Fees
Conditional Uses Tax Credits
Exemption from Growth Management Quota System
180
181
•
•
•
•
•
•
o
182
o
o
o
o
183
184
185
186
ALTA Commitment For Title Insurance
AUTHORIZED AGENT:
PITKIN COUNTY TITLE, INC.
601 E. HOPKINS AVE. 3
RD
FLOOR
ASPEN, COLORADO 81611
970-925-1766-PHONE
970-925-6527-FAX
877-217-3158-TOLL FREE
E-MAIL ADDRESS:
TITLE MATTERS: CLOSING MATTERS:
Nola Warnecke (nola@sopris.net) TJ Davis - (tjd@sopris.net)
Joy Higens - (joy@sopris.net)
Issued By
Home Office:
875 Concourse Parkway South, Suite 200
Maitland, FL 32751
Telephone (407) 629-5842
187
ALTA Commitment Form (6-17-06)
COMMITMENT FOR TITLE INSURANCE
ISSUED BY
WESTCOR LAND TITLE INSURANCE COMPANY
Westcor Land Title Insurance Company, a California Corporation,("Company"), for a valuable consideration,
hereby commits to issue its policy or policies of title insurance, as identified in Schedule A, in favor of the
Proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest covered hereby in the
land described or referred to in Schedule A, upon payment of the premiums and charges and compliance with
the Requirements; all subject to the provisions of Schedule A and B and to the Conditions of this Commitment.
This Commitment shall be effective only when the identity of the Proposed Insured and the amount of the policy
or policies committed for have been inserted in Schedule A hereof by the Company.
All liability and obligations under this Commitment shall cease and terminate within six (6) months after the
Effective Date or when the policy or policies committed for shall issue, whichever first occurs, provided that
the failure to issue such policy or policies is not the fault of the Company.
The Company will provide a sample of the policy form upon request.
IN WITNESS WHEREOF, WESTCOR LAND TITLE INSURANCE COMPANY has caused its corporate
name and seal to be hereunto affixed and these presents to be signed in facsimile under authority of its by-laws
on the date shown in Schedule A.
Issued By: WESTCOR LAND TITLE INSURANCE COMPANY
Countersigned:
Authorized Signature
CO 1045 * *
Pitkin County Title, Inc.
601 E. Hopkins #3
Aspen, CO 81611
188
CONDITIONS AND STIPULATIONS
1. The term "mortgage", when used herein, shall include deed of trust, trust deed or other security instrument.
2. If the Proposed Insured has or acquires actual knowledge of any defect, lien, encumbrance, adverse claim or
other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than
those shown in Schedule B hereof, and shall fail to disclose such knowledge to the Company in writing, the
Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to
the extent the Company is prejudiced by failure to so disclose such knowledge. If the Proposed Insured shall
disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any
such defect, lien or encumbrance, adverse claim or other matter, the Company at its option may amend
Schedule B of this Commitment accordingly, but such amendment shall not relieve the Company from
liability previously incurred pursuant to paragraph 3 of these Conditions and Stipulations.
3. Liability of the Company under this Commitment shall be only to the named Proposed Insured and such
parties included under the definition of Insured in the form of policy or policies committed for and only for
actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements
hereof, or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest
or mortgage thereon covered by this Commitment In no event shall such liability exceed the amount stated
in Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions
and Conditions and Stipulations and the Exclusions from Coverage of the form of policy or policies
committed for in favor of the Proposed Insured which are hereby incorporated by reference and are made a
part of this Commitment except as expressly modified herein.
4. This Commitment is a contract to issue one or more title insurance policies and is not an abstract of title or a
report of the condition of title. Any action or actions or rights of action that the Proposed Insured may have
or may bring against the Company arising out of the status of the title to the estate or interest or the status of
the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of
this Commitment.
5. The policy to be issued contains an arbitration clause. All arbitrable matters when the Amount of Insurance is $2,000,000.00 or
less shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. You may review
a copy of the arbitration rules at http://www.alta.org.
189
COMMITMENT FOR TITLE INSURANCE
SCHEDULE A
1. Effective Date: November 30, 2020 at 8:00 AM Case No. PCT25600W
2. Policy or Policies to be issued:
(a) ALTA Owner's Policy-(8/1/2016) Amount$
Premium$
Proposed Insured: Rate:
TO BE DETERMINED
(b) ALTA Loan Policy-(8/1/2016) Amount$
Premium$
Proposed Insured: Rate:
(c) ALTA Loan Policy-(8/1/2016) Amount$
Premium$
Proposed Insured: Rate:
3. Title to the FEE SIMPLE estate or interest in the land described or referred to in this Commitment is at the
effective date hereof vested in:
314 WEST MAIN LLC, a Colorado limited liability company
4. The land referred to in this Commitment is situated in the County of PITKIN State of COLORADO and is
described as follows:
LOT B,
HISTORIC LANDMARK LOT SPLIT AT 320 W. MAIN STREET, according to the Final Plat recorded
September 3, 2003 in Plat Book 66 at Page 32.
PITKIN COUNTY TITLE, INC. Schedule A-PG.1
601 E. HOPKINS, ASPEN, CO. 81611 This Commitment is invalid
970-925-1766 Phone/970-925-6527 Fax unless the Insuring
877-217-3158 Toll Free Provisions and Schedules
A and B are attached.
AUTHORIZED AGENT
Countersigned:
190
SCHEDULE B - SECTION 1
REQUIREMENTS
The following are the requirements to be complied with:
ITEM (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the
estate or interest to be insured.
ITEM (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly
filed for record to-wit:
THIS COMMITMENT IS FURNISHED FOR INFORMATIONAL PURPOSES ONLY, IT IS NOT A
CONTRACT TO ISSUE TITLE INSURANCE AND SHALL NOT BE CONSTRUED AS SUCH. IN THE
EVENT A PROPOSED INSURED IS NAMED THE COMPANY HEREBY RESERVES THE RIGHT TO
MAKE ADDITIONAL REQUIREMENTS AND/OR EXCEPTIONS AS DEEMED NECESSARY. THE
RECIPIENT OF THIS INFORMATIONAL REPORT HEREBY AGREES THAT THE COMPANY HAS
ISSUED THIS REPORT BY THEIR REQUEST AND ALTHOUGH WE BELIEVE ALL INFORMATION
CONTAINED HEREIN IS ACCURATE AND CORRECT, THE COMPANY SHALL NOT BE CHARGED
WITH ANY FINANCIAL LIABILITY SHOULD THAT PROVE TO BE INCORRECT AND THE COMPANY
IS NOT OBLIGATED TO ISSUE ANY POLICIES OF TITLE INSURANCE.
191
SCHEDULE B SECTION 2
EXCEPTIONS
The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to
the satisfaction of the Company:
1. Rights or claims of parties in possession not shown by the public records.
2. Easements, or claims of easements, not shown by the public records.
3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, any facts which a correct
survey and inspection of the premises would disclose and which are not shown by the public records.
4. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law
and not shown by the public records.
5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public
records or attaching subsequent to the effective date hereof but prior to the date the proposed insured
acquires of record for value the estate or interest or mortgage thereon covered by this Commitment.
6. Taxes due and payable; and any tax, special assessment, charge or lien imposed for water or sewer
service or for any other special taxing district.
7. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for the City and
Townsite of Aspen recorded March 1, 1897 in Book 139 at Page 216.
8. Reservations and exceptions as set forth in the Deed from the City of Aspen recorded December 6, 1887
in Book 59 at Page 129 providing as follows: "That no title shall be hereby acquired to any mine of gold,
silver, cinnabar or copper or to any valid mining claim or possession held under existing laws".
9. Terms, conditions, obligations and provisions of Easement Agreement as set forth in instrument recorded
December 11, 1986 in Book 524 at Page 964.
10. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the City Council
recorded December 18, 1992 in Book 698 at Page 213 as Resolution No. 56.
11. Terms, conditions, provisions and obligations as set forth in Quit Claim Deed recorded September 2, 1999
as Reception No. 435152.
12. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic
Preservation Commission recorded June 19, 2002 as Reception No. 468870 as Resolution No. 19.
13. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic
Preservation Commission recorded July 5, 2002 as Reception No. 469507 as Resolution No. 21.
14. Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No. 14, Series of 2002
by Aspen City Council recorded September 8, 2002 as Reception No. 471904.
15. Terms, conditions, provisions and obligations as set forth in Subdivision Agreement recorded September
3, 2003 as Reception No. 487833.
16. Easements, rights of way and all matters as disclosed on Plat of subject property recorded September 3,
2003 in Plat Book 66 at Page 32.
17. Terms, conditions, provisions and obligations as set forth in Notice of Approval for a Change in Use of
Historic Landmark Structure recorded October 23, 2019 as Reception No. 659852.
(Continued)
192
SCHEDULE B SECTION 2
EXCEPTIONS - (Continued)
18. Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Aspen Historic
Preservation Commission recorded October 25, 2019 as Reception No. 659919 as Resolution No. 19 Series
of 2019.
19. Any and all leases and/or tenancies.
20. Encroachments and all matters as disclosed by Survey of SOPRIS ENGINEERING - LLC dated SEPTEMBER
2018 as Job No. GRK 11076.
21. Deed of Trust from : 314 WEST MAIN LLC
To the Public Trustee of the County of Pitkin
For the use of : MORGAN STANLEY PRIVATE BANK, NATIONAL ASSOCIATION
Original Amount : $ 1,100,000.00
Dated : OCTOBER 12, 2018
Recorded : OCTOBER 15, 2018
Reception No. : 651212
22. NOTE: The title commitment is subject to underwriting approval. The Company reserves the right to
make changes.
193
ENDORSEMENT SCHEDULE FOR OWNERS POLICY
ATTACHED TO AND BECOMING A PART OF CASE NO: PCT25600W
SELLER:
314 WEST MAIN LLC, a Colorado limited liability company
BUYER:
TO BE DETERMINED
The following endorsements will be issued in connection with the Policy to be issued hereunder as referenced above:
ENDORSEMENTS: For a fee of: $
For a fee of: $
For a fee of: $
For a fee of: $
For a fee of: $
Upon compliance with the requirements set forth below, the following exceptions will be deleted from the final policy.
The fee for deleting exceptions 1 thru 3 is $55.00
A satisfactory affidavit and agreement indemnifying the Company against any defects, liens, encumbrances, adverse
claims, or other matters known by Seller and Buyer.
The Company hereby reserves the right to make additional requirements as may be deemed necessary in the event
information regarding defects, liens, encumbrances, adverse claims, or the like are discovered.
The fee for deleting exception 4 is $10.00 for Residential Property and $25.00 for Commercial Property.
Exception Number 5 is automatically deleted upon recordation of the documents called for on the requirement page of this
commitment.
Exception Number 6 will be amended to read: Taxes for the current year not yet due or payable, upon evidence
satisfactory that the Taxes for the prior year(s) have been paid.
NOTE: A satisfactory affidavit and agreement indemnifying the Company against unfiled mechanic's and
materialmens liens, executed by the seller and any additional parties deemed necessary by the Company.
The company hereby reserves the right to make additional requirements as may be deemed necessary in
the event additional facts regarding development, construction or other building or work are disclosed to
the company that may fall within any lien period as defined in the Statues of the State of Colorado, and
may result in additional premiums and/or fees for such coverage and any additional requirements deemed
necessary by the Company.
The Company hereby reserves the right to deny any of the above coverage's at its sole discretion.
194
PITKIN COUNTY TITLE, INC.
Disclosures
Water rights, claims or title to water. (NOTE: THIS EXCEPTION WILL APPEAR ON THE OWNER'S AND
MORTGAGE POLICY TO BE ISSUED HEREUNDER)
All documents received for recording or filing in the Clerk and Recorder's office shall contain a top margin of at least one inch and a
left, right and bottom margin of at least one half of an inch. The Clerk and Recorder will refuse to record or file any document that
does not conform to the requirements of this section. Pursuant to C.R.S. 30-10-406(3)(a).
The company will not issue its policy or policies of title insurance contemplated by this commitment until it has been provided a
Certificate of Taxes due or other equivalent documentation from the County Treasurer or the County Treasurer's authorized agent: or
until the Proposed Insured has notified or instructed the company in writing to the contrary. Pursuant to C.R.S. 10-11-122.
No person or entity that provides closing and settlement services for a real estate transaction shall disburse funds as a part of such
services until those funds have been received and are available for immediate withdrawals as a matter of right. Pursuant to C.R.S.
38-35-125(2).
The Company hereby notifies the proposed buyer in the current transaction that there may be recorded evidence that the mineral estate,
or portion thereof, has been severed, leased, or otherwise conveyed from the surface estate. If so, there is a substantial likelihood that a
third party holds some or all interest in the oil, gas, other minerals, or geothermal energy in the subject property. Such mineral estate
may include the right to enter and use the property without the surface owner's permission. Pursuant to C.R.S. 10-11-123.
If this transaction includes a sale of property and the sales price exceeds $100,000.00, the seller must comply with the
disclosure/withholding requirements of said section. (Nonresident withholding) Pursuant to C.R.S. 39-22-604.5.
Notice is hereby given that: The subject property may be located in a special taxing district. A Certificate of Taxes due listing each
taxing jurisdiction shall be obtained from the County Treasurer or the County Treasurer's authorized agent. Information regarding
special districts and the boundaries of such districts may be obtained from the Board of County Commissioners, the County Clerk and
Recorder, or the County Assessor. Pursuant to C.R.S. 10-11-122.
Notice is hereby given that: Pursuant to Colorado Division of Insurance Regulation 8-1-2;
"Gap Protection" -When this Company conducts the closing and is responsible for recording or filing the legal documents
resulting from the transaction, the Company shall be responsible for all matters which appear on the record prior to such time or
recording or filing; and
"Mechanic's Lien Protection" - If you are the buyer of a single family residence, you may request mechanic's lien coverage to be
issued on your policy of Insurance. If the property being purchased has not been the subject of construction, improvements or
repairs in the last six months prior to the date of this commitment, the requirements will be payment of the appropriate premium
and the completion of an Affidavit and Indemnity by the seller. If the property being purchased was constructed, improved or
repaired within six months prior to the date of this commitment the requirements may involve disclosure of certain financial
information, payment of premiums, and indemnity, among others. The general requirements stated above are subject to revision
and approval by the Company. Pursuant to C.R.S. 10-11-122.
Notice is hereby given that an ALTA Closing Protection Letter is available, upon request, to certain parties to the transaction
as noted in the title commitment. Pursuant to Colorado Division of Insurance Regulation 8-1-3.
Nothing herein contained will be deemed to obligate the Company to provide any of the coverages referred to herein unless
the above conditions are fully satisfied
NOTE: The policy(s) of insurance may contain a clause permitting arbitration of claims at the request of either
the Insured or the Company. Upon request, the Company will provide a copy of this clause and the
accompanying arbitration rules prior to the closing of the transaction.
NOTICE REGARDING CONSTRUCTION FINANCING: If it is not disclosed to the company that the loan to be
insured hereunder is in fact a construction loan, any coverage given under the final policy regarding
mechanic or materialmen's liens shall be deemed void and of no effect.
195
Pitkin County Title, Inc.
Privacy Policy
We collect nonpublic information about you from the following sources:
• Information we receive from you, such as your name, address, telephone
number, or social security number;
• Information about your transactions with us, our affiliates, or others. We
receive this information from your lender, attorney, real estate broker, etc.; and
Information from public records
We do not disclose any nonpublic personal information about our customers or former
customers to anyone, except as permitted by law.
We restrict access to nonpublic personal information about you to those employees
who need to know that information to provide the products or services requested by
you or your lender.
We maintain physical, electronic, and procedural safeguards that company with
appropriate federal and state regulations.
196
Notice of Privacy Policy
of
Westcor Land Title Insurance Company
Westcor Land Title Insurance Company ("WLTIC") values its customers and is committed to protecting the privacy of
personal information. In keeping with that philosophy, we have developed a Privacy Policy, set out below, that will
ensure the continued protection of your nonpublic personal information and inform you about the measures WLTIC takes
to safeguard that information.
Who is Covered
We provide our Privacy Policy to each customer when they purchase an WLTIC title insurance policy. Generally, this
means that the Privacy Policy is provided to the customer at the closing of the real estate transaction.
Information Collected
In the normal course of business and to provide the necessary services to our customers, we may obtain nonpublic
personal information directly from the customer, from customer-related transactions, or from third parties such as our title
insurance agents, lenders, appraisers, surveyors or other similar entities.
Access to Information
Access to all nonpublic personal information is limited to those employees who have a need to know in order to perform
their jobs. These employees include, but are not limited to, those in departments such as legal, underwriting, claims
administration and accounting.
Information Sharing
Generally, WLTIC does not share nonpublic personal information that it collects with anyone other than its policy issuing
agents as needed to complete the real estate settlement services and issue its title insurance policy as requested by the
consumer. WLTIC may share nonpublic personal information as permitted by law with entities with whom WLTIC has a
joint marketing agreement. Entities with whom WLTIC has a joint marketing agreement have agreed to protect the
privacy of our customer's nonpublic personal information by utilizing similar precautions and security measures as
WLTIC uses to protect this information and to use the information for lawful purposes. WLTIC, however, may share
information as required by law in response to a subpoena, to a government regulatory agency or to prevent fraud.
Information Security
WLTIC, at all times, strives to maintain the confidentiality and integrity of the personal information in its possession and
has instituted measures to guard against its unauthorized access. We maintain physical, electronic and procedural
safeguards in compliance with federal standards to protect that information.
The WLTIC Privacy Policy can also be found on WLTIC's website at www.wltic.com.
197
198
PITKIN COUNTY TITLE, INC.
601 E. HOPKINS, THIRD FLOOR
ASPEN, CO 81611
970-925-1766/970-925-6527 FAX
TOLL FREE 877-217-3158
WIRING INSTRUCTIONS FOR ALL TRANSACTIONS REGARDING THE CLOSING OF THIS FILE
ARE AS FOLLOWS:
ALPINE BANK-ASPEN
600 E. HOPKINS AVE.
ASPEN, CO. 81611
ABA ROUTING NO. 102103407
FOR CREDIT TO:
PITKIN COUNTY TITLE, INC., ESCROW ACCOUNT
ACCOUNT NO. 8910 354 425
REFERENCE:PCT25600W/TO BE DETERMINED
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Date: 11/20/2020
Geographic Information Systems
This map/drawing/image is a graphical
representation of the features
depicted and is not a legal representation.
The accuracy may change
depending on the enlargement or reduction.
Copyright 2020 City of Aspen GIS
0 0.01 0.030.01
mi
When printed at 8.5"x11"
4
Legend
AspenEditEnabled - Aspen
Address
ComDev - UGB
AspenEditEnabled - Aspen City
Limits
ComDev - Historic Sites
Pitkin_Layers - Pitkin Parcels
Pitkin_Layers - Pitkin Roads
Zoomed In
Scale: 1:1,505
314 W Main Vicinity
Map
200
ZN-001
SITE SURVEY
ISSUANCE
SEAL
DRAWING NO:
DRAWING TITLE:
PROJECT #
SCALE
DATE
314- MAIN
01 FA STUDY/ NUMERICS
c 1 FRIDAY DESIGN, LLC 2020314 WESTMAIN STREETRESIDENCE314 West Main Street, Aspen, CO 81611LOCAL ASSITANCE
1 Friday Design
PO BOX 7928
Aspen, Colorado 81612
T: 970.309.0695
www.1friday.com
d e r e k m s k a l k o
SURVEY ENGINEER
Sopris Engineering LLC.
502 Main Street, Suite A-3
Carbondale, CO 81623
T: 970.703.0311
www.soprisengineering.com
LAND PLANNER / CITY
REPRESENTATIVE
Bendon Adams
300 South Spring Street, Suite #202
Aspen, Colorado 81611
T: 970.925.2855
www.bendonadams.com
Owner:
Mr. Alex Yong, Co-Owner
Ms. Wendi Sturgis, Co-Owner
314 W Main Street
Aspen, CO 81611
314- MAIN-1 OCT 20
PER DRAWING
201
ZN-002
SITE SURVEY
ISSUANCE
SEAL
DRAWING NO:
DRAWING TITLE:
PROJECT #
SCALE
DATE
314- MAIN
01 FA STUDY/ NUMERICS
c 1 FRIDAY DESIGN, LLC 2020314 WESTMAIN STREETRESIDENCE314 West Main Street, Aspen, CO 81611LOCAL ASSITANCE
1 Friday Design
PO BOX 7928
Aspen, Colorado 81612
T: 970.309.0695
www.1friday.com
d e r e k m s k a l k o
SURVEY ENGINEER
Sopris Engineering LLC.
502 Main Street, Suite A-3
Carbondale, CO 81623
T: 970.703.0311
www.soprisengineering.com
LAND PLANNER / CITY
REPRESENTATIVE
Bendon Adams
300 South Spring Street, Suite #202
Aspen, Colorado 81611
T: 970.925.2855
www.bendonadams.com
Owner:
Mr. Alex Yong, Co-Owner
Ms. Wendi Sturgis, Co-Owner
314 W Main Street
Aspen, CO 81611
314- MAIN-1 OCT 20
PER DRAWING
SITE TOPOGRAPHY
SLOPE ANALYSIS
202
EXISTING SITE PLAN : 1/8" = 1'-0"
ZN-003
SITE PLAN
EXISTING
ISSUANCE
SEAL
DRAWING NO:
DRAWING TITLE:
PROJECT #
SCALE
DATE
314- MAIN
01 FA STUDY/ NUMERICS
c 1 FRIDAY DESIGN, LLC 2020314 WESTMAIN STREETRESIDENCE314 West Main Street, Aspen, CO 81611LOCAL ASSITANCE
1 Friday Design
PO BOX 7928
Aspen, Colorado 81612
T: 970.309.0695
www.1friday.com
d e r e k m s k a l k o
SURVEY ENGINEER
Sopris Engineering LLC.
502 Main Street, Suite A-3
Carbondale, CO 81623
T: 970.703.0311
www.soprisengineering.com
LAND PLANNER / CITY
REPRESENTATIVE
Bendon Adams
300 South Spring Street, Suite #202
Aspen, Colorado 81611
T: 970.925.2855
www.bendonadams.com
Owner:
Mr. Alex Yong, Co-Owner
Ms. Wendi Sturgis, Co-Owner
314 W Main Street
Aspen, CO 81611
314- MAIN-1 OCT 20
1/8" = 1'-0"
203
EXISTING MAIN LVL. FLOOR PLAN: 1/8" = 1'-0"
FAR (Z-005)
EXISTING UPPER LVL. FLOOR PLAN: 1/8" = 1'-0"
EXISTING MAIN LVL. FA DIAGRAM: 1/8" = 1'-0"EXISTING UPPER LVL. FA DIAGRAM: 1/8" = 1'-0"
EXISTING LOFT LVL. FLOOR PLAN: 1/8" = 1'-0"
EXISTING LOFT LVL. FA DIAGRAM: 1/8" = 1'-0"
HABITABLE
GARAGE
PORCH/ DECK
EXTERIOR STORAGE
LEGENDEXISTING FLOOR AREA CALCULATIONS - 100% of R-6 Definition
839.35 GROSS SQUARE FEET
789.04 SF FA COUNTABLE
VICTORIAN GH
839.35 GROSS SQUARE FEET
839.35 SF FA COUNTABLE
VICTORIAN GH
135.7 GROSS SQUARE FEET
38.35 EXEMPT / 96.85 SF FA COUNTABLE
UPPER LVL. LOFT AREA
(+ 30" in HEIGHT)
EXISTING MAIN LEVEL FLOOR AREA CALCULATIONS - VICTORIAN GH
839.35 (FA)GROUND FLOOR AREA (SQ FT) - FA
GROUND PORCH/ DECK AREA (GROSS SQ FT)
1,725.24 (FA) :: 2,520.4 FA Allowable :: 795.16 FA UnusedTOTAL EXISTING FLOOR AREA (SQ FT) - 100%
GROUND FLOOR STAIR & MISC. EXEMPTIONS: INT. 0 (GROSS)
839.35 (GROSS)GROUND FLOOR AREA (GROSS SQ FT HAB)
GARAGE FLOOR AREA (SQ FT) - FA
GARAGE FLOOR AREA (GROSS SQ FT)N/A: 0 (GROSS)
N/A: 0 (FA)
Standard R-6 Zoning Allowance
514.68 Lot Total Allowable
EXISTING UPPER LEVEL FLOOR AREA (+ LOFT ACCESSED AREA) CALCULATIONS - VICTORIAN GH
789.04 (FA)UPPER LEVEL FLOOR AREA (SQ FT) - FA
UPPER PORCH/ DECK AREA (GROSS SQ FT)
UPPER FLOOR STAIR & MISC. EXEMPTIONS: INT.50.31 (GROSS)
839.35 (GROSS)UPPER LEVEL FLOOR AREA (GROSS SQ FT HAB)
1st 250 Exempt / 2nd 250 - 50%
No Exemptions 1:1 Ratio
50.31 Open Stair Exemption
N/A: 0 (EX) =0 (FA)
24.6 (EX) = 0 (FA)
514.68 Lot Total Allowable
96.85 (FA)UPPER LOFT LEVEL FLOOR AREA (SQ FT) - FA
LOFT FLOOR STAIR & MISC. EXEMPTIONS: INT.38.85 (GROSS)
135.7 (GROSS)UPPER LVL. LOFT FLOOR AREA (GROSS SF HAB)
38.85 Exemption: Less than 30"
Floor Area Summary Existing Gross (Sq Ft)Existing Floor Area (Sq Ft) Proposed Gross (Sq Ft)Proposed Floor Area (Sq Ft) Reference
ZN-001 through ZN-0005Basement Habitable (Lower Subgrade Level) N/A N/A
Main Level Habitable (Ground Floor)839.35
Upper Level Habitable (2nd Floor)
Porch/ Stair Access / Patio / Roof Deck Area
Total 1,814.4 Hab / 0 Gar 1,725.24 FA N/AN/A
Floor Area Allowable For 314 W Main Street 2,520.4 square foot FA For SFR FA per R-6 on 3,431.24 square foot lot
Main Level Garage (Ground Floor)
N/A N/A0 FA Countable / 514.68 Allowable24.6 (Existing)
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
7901
7902
T.O. Conc. Mecha
ELEV - 96'-6" (V.I.F
T.O. F.F. Main Lev
ELEV - 100'-0" (V.I.
T.O. F.F. Upper Le
ELEV - 109'-8" (V.I.
T.O. F.F. Loft Area
ELEV - 118'-1/2" (V
T.O. 13/12 Gable
ELEV - 126'-2 1/4"
MECHANICAL AREA: MAIN
LEVEL ACCESS - SUNKEN -
3'-6" FROM MAIN LVL. F.F.
B.0
EX
REAR (ALLEY)PROPERTY LINE5' GARAGE REARYARD SETBACK10' HABITABLE REARYARD SETBACK69' APPROX. TOFRONT YARD (MAIN)PROPERTY LINEA.0
EX
25' MU Height Limit
(Detached Residential)
T.O. 1/3 Point 12/1
ELEV - 118'-4" (V.I.
T.O. 1/3 Point 12/1
ELEV - 120'-1 3/4" 2'-6"2'-8 9
16"9'-8"2'-8 9
16"
30" SPRING POINT
LOFT AREA
GREATER THAN 30"
LOFT AREA
LOFT SECTION: 1/8" = 1'-0"
N/A
N/A N/A
839.35
Upper Level Habitable (2nd Lvl. Loft Area)
839.35 789.04
135.7 96.85
795.16 square foot FA Unused
ZN-001 through ZN-0005
ZN-001 through ZN-0005
ZN-001 through ZN-0005
ZN-001 through ZN-0005
ZN-001 through ZN-0005
ZN-001 through ZN-0005
ZN-004
FLOOR AREA
DIAGRAMS &
NUMERIC
ISSUANCE
SEAL
DRAWING NO:
DRAWING TITLE:
PROJECT #
SCALE
DATE
314- MAIN
01 FA STUDY/ NUMERICS
c 1 FRIDAY DESIGN, LLC 2020314 WESTMAIN STREETRESIDENCE314 West Main Street, Aspen, CO 81611LOCAL ASSITANCE
1 Friday Design
PO BOX 7928
Aspen, Colorado 81612
T: 970.309.0695
www.1friday.com
d e r e k m s k a l k o
SURVEY ENGINEER
Sopris Engineering LLC.
502 Main Street, Suite A-3
Carbondale, CO 81623
T: 970.703.0311
www.soprisengineering.com
LAND PLANNER / CITY
REPRESENTATIVE
Bendon Adams
300 South Spring Street, Suite #202
Aspen, Colorado 81611
T: 970.925.2855
www.bendonadams.com
Owner:
Mr. Alex Yong, Co-Owner
Ms. Wendi Sturgis, Co-Owner
314 W Main Street
Aspen, CO 81611
314- MAIN-1 OCT 20
BREAKDOWNS
1/8" = 1'-0"
(100% - R-6 DEF)
204
FAR (Z-007)
7902
7901
7903
7903
T.O. Conc. Mechanical
ELEV - 96'-6" (V.I.F.)
T.O. F.F. Main Level
ELEV - 100'-0" (V.I.F.)
T.O. F.F. Upper Level
ELEV - 109'-8" (V.I.F.)
T.O. F.F. Loft Area
ELEV - 118'-1/2" (V.I.F.)
T.O. 13/12 Gable Ridge
ELEV - 126'-2 1/4" (V.I.F.)
T.O. Conc. Mechanical
ELEV - 96'-6" (V.I.F.)
T.O. F.F. Main Level
ELEV - 100'-0" (V.I.F.)
T.O. F.F. Upper Level
ELEV - 109'-8" (V.I.F.)
T.O. F.F. Loft Area
ELEV - 118'-1/2" (V.I.F.)
T.O. 13/12 Gable Ridge
ELEV - 126'-2 1/4" (V.I.F.)WEST SIDE YARDPROPERTY LINE1.0
EX
2.0
EX
1.0
EX
2.0
EX
MECHANICAL AREA: MAIN
LEVEL ACCESS - SUNKEN -
3'-6" FROM MAIN LVL. F.F.
MECHANICAL AREA: MAIN
LEVEL ACCESS - SUNKEN -
3'-6" FROM MAIN LVL. F.F.WEST SIDE YARD 5'SETBACKEAST SIDE YARDPROPERTY LINEEAST SIDE YARDPROPERTY LINET.O. 1/3 Point 13/12 W-E Gable
ELEV - 118'-4" (V.I.F.)
T.O. 1/3 Point 13/12 N-S Dormer Gable
ELEV - 120'-1 3/4" (V.I.F.)
T.O. 1/3 Point 12/12 W-E Gable
ELEV - 118'-4" (V.I.F.)
T.O. 1/3 Point 12/12 N-S Dormer Gable
ELEV - 120'-1 3/4" (V.I.F.)WEST SIDE YARDPROPERTY LINEWEST SIDE YARD 5'SETBACKEAST SIDE YARDPROPERTY LINEEAST SIDE YARDPROPERTY LINET.O. 13/12 N-S Gable Cupola
ELEV - 129'-5 1/8" (V.I.F.)
25' MU Height Limit
(Detached Residential)
25' MU Height Limit
(Detached Residential)
EXISTING NORTH (ALLEY) ELEVATION: 1/8" = 1'-0"
7901
7902
7903
7902
T.O. Conc. Mechanical
ELEV - 96'-6" (V.I.F.)
T.O. F.F. Main Level
ELEV - 100'-0" (V.I.F.)
T.O. F.F. Upper Level
ELEV - 109'-8" (V.I.F.)
T.O. F.F. Loft Area
ELEV - 118'-1/2" (V.I.F.)
T.O. 13/12 Gable Ridge
ELEV - 126'-2 1/4" (V.I.F.)
T.O. Conc. Mechanical
ELEV - 96'-6" (V.I.F.)
T.O. F.F. Main Level
ELEV - 100'-0" (V.I.F.)
T.O. F.F. Upper Level
ELEV - 109'-8" (V.I.F.)
T.O. F.F. Loft Area
ELEV - 118'-1/2" (V.I.F.)
T.O. 13/12 Gable Ridge
ELEV - 126'-2 1/4" (V.I.F.)
MECHANICAL AREA: MAIN
LEVEL ACCESS - SUNKEN -
3'-6" FROM MAIN LVL. F.F.
MECHANICAL AREA: MAIN
LEVEL ACCESS - SUNKEN -
3'-6" FROM MAIN LVL. F.F.
B.0
EX
REAR (ALLEY)PROPERTY LINE5' GARAGE REARYARD SETBACK10' HABITABLE REARYARD SETBACK69' APPROX. TOFRONT YARD (MAIN)PROPERTY LINEA.0
EX
B.0
EX
REAR (ALLEY)PROPERTY LINE5' GARAGE REARYARD SETBACK10' HABITABLE REARYARD SETBACK69' APPROX. TOFRONT YARD (MAIN)PROPERTY LINEA.0
EX
25' MU Height Limit
(Detached Residential)
T.O. 1/3 Point 12/12 W-E Gable
ELEV - 118'-4" (V.I.F.)
T.O. 1/3 Point 12/12 N-S Dormer Gable
ELEV - 120'-1 3/4" (V.I.F.)
T.O. 1/3 Point 12/12 W-E Gable
ELEV - 118'-4" (V.I.F.)
T.O. 1/3 Point 12/12 N-S Dormer Gable
ELEV - 120'-1 3/4" (V.I.F.)
T.O. 13/12 N-S Gable Cupola
ELEV - 129'-5 1/8" (V.I.F.)
25' MU Height Limit
(Detached Residential)
EXISTING SOUTH (314 W MAIN ST) ELEVATION: 1/8" = 1'-0"
EXISTING EAST (SIDE) ELEVATION: 1/8" = 1'-0"EXISTING WEST (SIDE) ELEVATION: 1/8" = 1'-0"
ZN-005
ELEVATIONS
ISSUANCE
SEAL
DRAWING NO:
DRAWING TITLE:
PROJECT #
SCALE
DATE
314- MAIN
01 FA STUDY/ NUMERICS
c 1 FRIDAY DESIGN, LLC 2020314 WESTMAIN STREETRESIDENCE314 West Main Street, Aspen, CO 81611LOCAL ASSITANCE
1 Friday Design
PO BOX 7928
Aspen, Colorado 81612
T: 970.309.0695
www.1friday.com
d e r e k m s k a l k o
SURVEY ENGINEER
Sopris Engineering LLC.
502 Main Street, Suite A-3
Carbondale, CO 81623
T: 970.703.0311
www.soprisengineering.com
LAND PLANNER / CITY
REPRESENTATIVE
Bendon Adams
300 South Spring Street, Suite #202
Aspen, Colorado 81611
T: 970.925.2855
www.bendonadams.com
Owner:
Mr. Alex Yong, Co-Owner
Ms. Wendi Sturgis, Co-Owner
314 W Main Street
Aspen, CO 81611
314- MAIN-1 OCT 20
1/8" = 1'-0"
205
Page: 1 of 4
09/05/2002 09: 1 ll:t
ILVIA DAVIS PlTKTN COUNTY CO R 21.00 D 0.00
ORDINANCE NO. 14
Series of 2002)
AN ORDINANCE OF THE ASPEN CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, TO GRANT APPROVAL FOR A suBDIVISION EXEMPTION
FOR AN HISTORIC LANDMARK LOT SPLIT AT 320 W. MAIN STREET,
LOTS N, O, AND P, BLOCK 44, CITY AND TOWNSITE OF ASPEN
PARCEL ID#: 2735-
124-41-005 WHEREAS, pursuanttoSections26.480.030(A)(2)
and (4), Section 26.470.070(C), andSection26.415.010(D) of the Municipal Code,
a Historic Landmark Lot Split is a subdivision exemption subject to review and approval by
City Council after obtaining a recommendation from the Historic
preservation Commission (
hereinafter HPC); and WHEREAS, the applicants, Scott and Mary Caroline McDonald,
owners of 320 W. Main Street, Lots N, O, and P, BlOck 44, Cityand ToWnSite Of'
Aspen, have requested approval tosplit a 9,000 square foot parcel into twolots of 4,500 square
feet each; and WHEREAS, the Community Development Department
has reviewed the application and recommends approval of the Historic Landmark
Lot SPlit; and WltEREAS, the HPC reviewed the request for the historic lot split
at a properly noticed public hearing on May 8, 2002, and reviewed a setback variance
request at a public hearing on June 12, 2002, and
recommended approval; and WHEREAS, the Aspen City Council has reviewed
and considered the subdivision exemption under the applicable provisions of the
Municipal Code as identified herein, has reviewed and considered those recommendations
made by the Community Development Department, and the Historic
Preservation Commission, and has taken and considered public comment at a
public hearing; and WltEREAS, the City Council finds that the Historic Landmark Lot
Split meets or exceeds all applicable development standards of the above
referenced Municipal
Code sections; and WHEREAS, the City Council finds that this Ordinance furthers
and is necessary for the public health,
safety and welfare.NOW, THEREFORE, BE IT ORDAINED BY THE CITY
COUNCIL OF THE CITY OF
206
Page: 2 of' 4
09105/2002 09: 1 lA
ILVIA D~VIS PYTKIN COUNTY CO R 2~..00 D 0.00
Section 1 ~
Pursuant to Sections 26.480.030(A)(2) and (4), Section 26.470.070(C), and
Section 26.415.010(D) of the Municipal Code, and subject to those conditions of
approval as specified herein, the City Council finds as follows in r~gard to the
subdivision exemption:
1. The applicant's submission is complete and sufficient to afford review and
evaluation for approval; and
2. The subdivision exemption is consistent with the purposes of subdivision as
outlined in Section 26.480 of the Municipal Code, which purposes include: assist
in the orderly and efficient development of the City; ensure the proper
distribution of development; encourage the well-planned subdivision of land
by establisking standards for the design of a subdivision; improve land records
and survey monuments by establishing standards for surveys and plats; coordinate
the construction of public facilities with the need for public facilities; safeguard
the interests of the public and the subdivider and provide consumer protection for
the purchaser; acquire and ensure the maintenance of public open spaces and
parks,provide procedures so that development encourages the preservation of
important and unique natural or scenic features, including but not limited to mature trees
or indigenous vegetation, bluff, hillsides, or similar geologic features, or edges
of rivers and other bodies of water, and, promote the health, safety and
general welfare of the residents of the City of
Aspen.Section
2 Pursuant to the findings set forth in Section 1, above, the City Council
does hereby grant an Historic Landmark Lot Split subdivision exemption for 320 W.
Main Street with the following
conditions:1. The HPC has approved a 500 square foot FAR bonus, for the purpose of
allowing the existing structures to remain in place. The bonus is not being awarded to
allow any expansion on the property. This condition shall be noted on the
plat.2. In order to qualify for the bonus, the applicant must meet "City of Aspen
Historic Preservation Design Guideline2.2." A plan for repair and repainting of
the Smith-Elisha house must be submitted to HPC staff by July 31, 2002,
and the work must be completed by December 31, 2002. The City will require
a financial security be posted by the applicant to ensure that this condition
is met.3. The HPC has waived any of the required parking that cannot be contained
on the site in the form of legal sized spaces. This condition shall be noted on
the plat.4. The HPC has granted a 3 foot sideyard setback variance along the east side
ofthe Smith-E1/sha House. As a condition of the variance, which
was partially justifiedby the owner's desire to have the two new lots share an existing
207
ILVIA DAVIS P;TKIN COUNTY CO R 21.00 O 0.00
determined that as lung as the historic caniagc house remains the o~y sa-
ucture on the east half of Lot 0 and all of Lot ?, Block 44, City andTov~site of
Aspen,said building shall be accessed from the street via the shared sidewalk which
runs down the east side of the adjacent Smith- Elisha house. No new sidewalk can
be created from Main Street to the carriage house unless approved by the HPC.
This condition shall be noted on the
plat.5. A subdivision plat and subdivision exemption agreement shall be reviewed
and approved by the Community Development Department and recorded in the
office of the Pitkin County Clerk and Recorder within one hundred eighty (I 80) days
of final approval by City Council. Failure to record the plat and
subdivision exemption agreement within the specified time limit shall render the plat
invalid and reconsideration of the plat by City Council will be required for a showing
of good cause. As a minimum, the subdivision plat
shall:a. Meet the requirements of Section26.480 of the Aspen Municipal
Code;b. Contain a plat note stating that the lots contained therein shall
be prohibited from further subdivision and any development of the lots
will comply with the applicable provisions of the Land Use Code in effect
at the time of
application;c. Contain a plat note stating that all new development on the lots
will conform to the dimensional requirements of the Office zone
district,except the variances approved by the
HPC.4. The FAR on the two lots created by this lot split shall be based on the use of
the buildings. At this time the Smith-Elisha house is intended to be a
residence and the carriage house is mixed-use. The maximum FAR for each lot
may be affected by applicable lotarea reductions (i.e., slopes, access
easements, etc.). The applicant shall verify with the City Zoning Officer the total
allowable FAR on each lot, taking into account any and all applicable lot
area reductions. The property shall be subdivided into two parcels, Lots A andB, each
4,500 square feet in size. This condition shall be noted
on the plat.5. The site is located on Main Street, where pedestrian improvements
are an important goal. The applicant must verify that the existing sidewalk, curb, and
gutter in front of the property meet the requirements of the City
Engineering Department, or rectify any inadequacies Pd0r to
filing the plat.6. Part of the historic significance of this property lies in the fact that
this is a significant residence with a large carriage house on the site.
These two structures are strongly associated architecturally and establish a strong
historic context on the site. The HPC will review any future development on
the property, however,as a condition of approval of this lot split, a fence shall not be
allowed to be constructed between the two newly create lots, which
would separate them visually from each other. This shall be noted
on the
plat.Section 3 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
208
the ordinances repealed or amended as herein provided, and the same shall be conducted
and concluded under such prior ordinances.
Section 4
If any section, subsection, sentence, clause, phrase or portion of this ordinance is
for any reason held invalid or unconstitutional by any 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 public hearing on the Ordinance was held On the 24th day of June, 2002, 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 13th day of May, 2002.. t ~ ·
H~en ~Kali~ Kl'~'e~ud, Mayor
City Clerk
adopted, passed and approved this 2002.
City Clerk
Approved as to form:
John 1~. Worcester
City Attorney
209
210
211
212
213
214
Page 1 of 5
130 South Galena Street Aspen, CO 81611-1975 | P: 970.920.5197 | cityofaspen.com
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Michelle Bonfils Thibeault, Planner II
THROUGH: Phillip Supino, AICP, Community Development Director
MEMO DATE: March 29, 2021
MEETING DATE: April 13, 2021
RE: 212 N. Monarch: Establishment of Transferable Development Rights (TDR)
APPLICANT /OWNER:
Philip R Hodgson and Patricia
Hodgson Family Trust
REPRESENTATIVE:
Alan Richman Planning Services,
Inc.
LOCATION:
Street Address:
212 N. Monarch Street
Legal Description:
The South Sixty-Two Feet of Lots
A, B, and C, Block 78 City and
Townsite of Aspen, Colorado
Parcel Identification Number:
PID# 2737-073-17-003
CURRENT ZONING & USE
R-6 (Medium-Density Residential);
Historic Landmark (H); The
property is developed with a
designated historic structure
known as the Kobey House.
PROPOSED ZONING & USE:
No change
SUMMARY: The applicant requests approval by City Council to
establish two (2) historic transferrable development rights (TDR’s)
which will remove 500 square feet of undeveloped floor area from
the 212 N. Monarch Street property. The property is a designated
Historic Landmark containing the historic structure known as the
Kobey house. While HPC has no formal role in the establishment
of Historic TDR Certificates, the applicant requests a
recommendation to Council to maintain the historic landmark by
establishing two TDRs removing 500 square feet of available floor
area from the historic lot.
STAFF RECOMMENDATION: Staff recommends approval of the
request to establish two (2) historic transferrable development rights
(TDR’s) extinguishing 500 square feet of development rights from
the property to further preserve the Historic Landmark known as the
Kobey House.
VICINITY MAP
215
Page 2 of 5
130 South Galena Street Aspen, CO 81611-1975 | P: 970.920.5197 | cityofaspen.com
REQUEST OF COUNCIL: The Applicant is requesting the following Land Use approvals from City
Council. Council has the final decision-making authority on the requests.
• Transferable Development Rights (Section 26.535) for the establishment of two TDRs,
representing all but 126 square feet of the remaining residential development allowed on
this historic parcel.
The applicant proposes to maintain the historic landmark and extinguish the unused, remaining
development rights on the property. The applicant requests approval to remove 500 square feet
of developable floor area from the historic lot through the establishment of two (2) Transferable
Development Rights (TDRs). Historic TDR Certificates are issued in increments of 250 square
feet.
BACKGROUND:
212 N. Monarch Street is approximately 5,634 s.f. lot in size and located in the R-6 zone district.
The lot contains an historic Late Victorian structure, known as the Kobey House, built in 1888.
The structure has been inhabited as a residence for over 120 years.
Figure 1: Photo of subject site view from Monarch Street.
216
Page 3 of 5
130 South Galena Street Aspen, CO 81611-1975 | P: 970.920.5197 | cityofaspen.com
The entire property is historically designated via Ordinance #57, Series of 1981. Pursuant to HPC
Resolution #009, Series of 2010, the Historic Preservation Commission granted approval to install
a driveway along the north side of the property.
The applicant is the resident-owner of the property and has maintained the historic integrity of the
property since the purchase nearly 50 years ago. The applicant requests to create two (2) historic
transferable development rights (TDR’s), the revenues from which will be used to continue to
maintain the property under the same family ownership.
Only two land use applications have occurred on the property during the 50-year ownership of the
applicant. The first land use application was historic designation by Ordinance No. 57, Series of
1981. The second land use application was Minor Development approval of a driveway along the
northern side of the property, approved by the Historic Preservation Commission Resolution No.
009, Series of 2010. No other benefits, variations, or such have been requested by the property
owner during the 50 years of ownership of this historic resource.
DISCUSSION:
The maximum floor area for constructing a single-family dwelling on a 5,634 s.f. lot in the R-6
zone district is 3,122 s.f.. The property is subject to slope reductions in lot area as follows:
5,634 s.f. gross lot area
-333 s.f. lot area with slopes greater than 30% (eliminated from the net lot area)
- 44 s.f. 89 s.f. on slopes between 20 – 30 %, of which only half count toward the net lot area
5,256 Lot Area for calculating Floor Area
Pursuant to Section 26.710.040, the allowable floor area on the 5,256 s.f. property is 3,031 s.f..
Following is the calculation demonstrating available floor area to be extinguished by creating two
(2) Historic TDR certificates.
3,031 s.f. allowable floor area
2,405 s.f. existing floor area of Historic Landmark
626 s.f. undeveloped floor area and existing development rights
The remaining floor area that may be converted into TDRs on 212 West Monarch equals 626
square feet. The applicant requests approval for 2 TDRs, the severing of which will leave a
remainder of 126 square feet of allowed development rights on the site.
The property is an historic landmark and the applicant has demonstrated the existence of unused
development rights exceeding two hundred fifty square feet (250) square feet of floor area on the
parcel. Once the TDRs are created the applicant plans to comply with the required steps of
executing and delivering a deed restriction. A draft deed restriction was submitted with the
application. In addition, the applicant agrees to disclose information related to the sale,
assignment, conveyance or other transfer or change of ownership of the TDRs to the City of
217
Page 4 of 5
130 South Galena Street Aspen, CO 81611-1975 | P: 970.920.5197 | cityofaspen.com
Aspen Community Development Department within five (5) days. The review criteria for the
creation of TDRs and staff analysis of those criteria are attached as Exhibit A. Staff finds the
criteria for establishing TDRs are met.
At the February 24, 2021 Historic Preservation Committee (HPC) meeting, the committee
unanimously agreed that the application meets the intent of the TDR program by removing
existing development rights from the property, further protecting the historic resource and similarly
financially incentivizing the applicant with the ability to sell TDRs associated with the property.
City Council 1st Reading:
On March 9, 2021, City Council heard the request to establish Transferable Development Rights
(TDRs) for this site on first reading. At the meeting City Council asked the following question
regarding the request:
1. Council asked for an overview of the City’s TDR program, specifically regarding the floor
area associated with each TDR, allowed landing sites, and a TDR purchaser’s rights. A TDR
certificate is calculated in increments of 250 s.f. of floor area or 500 s.f. of net livable area. Landing
sites for TDRs are detailed in Chapter 26.710 (Zone Districts). TDRs may be sold, assigned,
transferred, or conveyed. Under the direction of City Council, staff is in the process of preparing
an information only memo about the Transferable Development Rights (TDR) program.
2. Council asked if the square footage associated with creating two TDRs from the subject
property had to be contiguous to be severed from the property. TDRs are based on the concept
of a maximum amount of square footage allowed on a lot in consideration of zoning, lot size, and
existing development on the site. Severing the development right from a property is conceptual
in nature and not specific to a certain location on the property. The amount of conceptual square
footage being severed must be specifically determined to create the TDR(s).
REQUEST OF COUNCIL: The Applicant is requesting the following approval from City Council.
• Transferable Development Rights (Section 26.535) for the establishment of three TDRs,
representing remaining residential development allowed on this historic lot. The Historic
Preservation Commission is a recommending body and Aspen City Council is the final review
authority.
FINANCIAL IMPACTS: N/A
ENVIRONMENTAL IMPACTS: N/A
ALTERNATIVES: N/A
RECOMMENDATION: Staff and HPC recommends approval of Ordinance No. 04, Series of 2021
on Second Reading.
218
Page 5 of 5
130 South Galena Street Aspen, CO 81611-1975 | P: 970.920.5197 | cityofaspen.com
CITY MANAGER COMMENTS:
PROPOSED MOTION:
“I move to approve Ordinance No. 04 Series of 2021 on Second Reading.”
ATTACHMENTS:
Ordinance # 004, Series of 2021
Exhibit A – Review Criteria & Staff Findings
Exhibit B – HPC Meeting Minutes (Feb 24, 2021) and HPC Resolution #004, Series of 2021
Exhibit C – Land Use Application
219
Ordinance No. 04, Series of 2021
212 North Monarch Street
Page 1 of 4
ORDINANCE NO. 04
(SERIES OF 2021)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING THE
ESTABLISHMENT OF TRANSFERABLE DEVELOPMENT RIGHTS FOR THE
PROPERTY LOCATED AT 212 NORTH MONARCH STREET, THE SOUTH SIXTY-
TWO FEET OF LOTS A, B, AND C, BLOCK 78, CITY AND TOWNSITE OF ASPEN,
COUNTY OF PITKIN, STATE OF COLORADO
PARCEL ID: 2737-073-17-003
WHEREAS, the Community Development Department received an application from the
applicants, Philip R Hodgson and Patricia Hodgson Family Trust, represented by Alan Richman
Planning Services, Inc., for the property located at 212 North Monarch Street, City and Townsite
of Aspen, Colorado, requesting approval for the following:
• Transferable Development Rights (TDR) - Section 26.535 for the establishment of up to
two (2) TDRs, representing the remaining 626 square feet of residential development
allowed on this historic parcel. Development rights for 126 square feet will remain after
establishment of two (2) TDRs.
WHEREAS, the Community Development Department reviewed the proposed
application, found that the review standards were met, and recommended in favor of establishing
two (2) TDRs for this site; and
WHEREAS, the Historic Preservation Commission reviewed the application on
February 24, 2021, during which the recommendations of the Community Development
Department were heard by the Historic Preservation Commission (HPC), and the Commission
recommended in favor of the establishment of up to two (2) TDRs through Resolution #004,
Series of 2021, by a vote of five to zero (5 – 0).
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 recommendations of the Community Development Director and the Historic Preservation
Commission; and,
WHEREAS, on March 9, 2021, the Aspen City Council approved Ordinance No. 04
Series of 2021, on First Reading; and,
WHEREAS, during a duly noticed public hearing on April 13, 2021, the Aspen City
Council approved Ordinance No. 04, Series of 2021, on Second Reading by a ____ to ____ ( __ –
__ ) vote, approving the establishment of up to two (2) TDRs; and,
WHEREAS, City Council finds that the development proposal meets or exceeds all the
applicable development standards; and,
220
Ordinance No. 04, Series of 2021
212 North Monarch Street
Page 2 of 4
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 OF ASPEN CITY COUNCIL
AS FOLLOWS:
Section 1: Transferable Development Rights (TDR)
Pursuant to the findings set forth above, the City Council does hereby authorize the creation of up to
two (2) TDRs from the 212 North Monarch Street with the following conditions:
1. Commencing with the severing of the first TDR from the property, the maximum floor area
for the lot shall be 3,031 square feet minus 250 square feet for each TDR Certificate issued.
2. Upon satisfaction of all requirements, the City and the applicant shall establish a date on
which the respective Historic TDR Certificates shall be validated and issued by the City and
a deed restriction on the property shall be accepted by the City and filed with the Pitkin
County Clerk and Recorder. The property owner may decide when and if, as warranted by
the TDR market, the development rights will be converted into certificates and sold.
3. On the mutually agreed upon date, the Mayor of the City of Aspen shall execute and deliver
the applicable number of Historic TDR Certificates on the property owner and the property
owner shall execute and deliver a deed restriction lessening the available development right
of the Sending Site by 250 square feet per TDR together with the appropriate fee for
recording the deed restriction with the Pitkin County Clerk and Recorder’s Office.
4. All calculations shall be verified by The City prior to the issuance of Historic TDR
Certificates.
Section 2: Existing Litigation
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 3: Severability
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 4: Vested Rights
The development approvals granted herein shall constitute a site-specific development plan vested
for a period of three (3) years from the date of issuance of a development order. However, any
failure to abide by any of the terms and conditions attendant to this approval shall result in the
forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly
record all plats and agreements required to be recorded, as specified herein, within 180 days of the
effective date of the development order shall also result in the forfeiture of said vested property
rights and shall render the development order void within the meaning of Section 26.104.050 (Void
permits). Zoning that is not part of the approved site-specific development plan shall not result in the
creation of a vested property right.
221
Ordinance No. 04, Series of 2021
212 North Monarch Street
Page 3 of 4
No later than fourteen (14) days following final approval of all requisite reviews necessary to obtain
a development order as set forth in this Ordinance, the City Clerk shall cause to be published in a
newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice
advising the general public of the approval of a site specific development plan and creation of a
vested property right pursuant to this Title. Such notice shall be substantially in the following form:
Notice is hereby given to the general public of the approval of a site specific development plan, and
the creation of a vested property right, valid for a period of three (3) years, pursuant to the Land Use
Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the
following described properties: 212 North Monarch Street.
Nothing in this approval shall exempt the development order from subsequent reviews and approvals
required by this approval of the general rules, regulations and ordinances or the City of Aspen
provided that such reviews and approvals are not inconsistent with this approval.
The approval granted hereby shall be subject to all rights of referendum and judicial review; the
period of time permitted by law for the exercise of such rights shall not begin to run until the date of
publication of the notice of final development approval as required under Section 26.304.070(A).
The rights of referendum shall be limited as set forth in the Colorado Constitution and the Aspen
Home Rule Charter.
Section 5:
A duly noticed public hearing on this Ordinance was held on the 13th day of April, 2021 at 5:00 PM
in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISED as provided by law, by the City
Council of the City of Aspen on the 13th day of April, 2021.
Attest: Approved as to content:
____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
FINALLY, adopted, passed and approved this _____ day of __________, 2021.
222
Ordinance No. 04, Series of 2021
212 North Monarch Street
Page 4 of 4
Approved as to form: Approved as to content:
____________________________ ____________________________
James R. True, City Attorney Torre, Mayor
Attest:
____________________________
Nicole Henning, City Clerk
223
Page 1 of 3
Exhibit A
Transferable Development Rights Criteria
Staff Findings
Section 26.535.070
A historic TDR certificate may be established by the Mayor if the City Council, pursuant to adoption
of an ordinance, finds all the following standards met:
A. The sending site is a historic landmark on which the development of a single-family or
duplex residence is a permitted use, pursuant to Chapter 26.710, Zone Districts. Properties
on which such development is a conditional use shall not be eligible.
Staff Findings: 212 N. Monarch Street is a designated historic landmark that is an
eligible sending site that can establish and sever transferable development rights
(TDRs). Single-family residential development is a permitted use in the R-6 zone
district.
B. It is demonstrated that the sending site has permitted unbuilt development rights, for either
a single-family or duplex home, equaling or exceeding two hundred and fifty (250) square
feet (sf) of floor area multiplied by the number of historic TDR certificates requested.
Staff Findings: Floor area calculations have been provided using the existing lot
configuration. The historic lot has an allowable floor area of 626 square feet after
subtracting the floor area of the historic structure proposed to remain. Two TDRs
equaling 250 square feet each may be established, and final floor area calculations
will be verified by the Zoning staff prior to the issuance of a TDR. If the lot
configuration is to change, new floor area calculations will need to be provided and
verified.
C. It is demonstrated that the establishment of TDR certificates will not create a
nonconformity. In cases where a nonconformity already exists, the action shall not increase
the specific nonconformity.
Staff Findings: The creation of a TDR will not create or increase a nonconformity.
D. The analysis of unbuilt development right shall only include the actual built development,
any approved development order, the allowable development right prescribed by zoning
for a single-family or duplex residence, and shall not include the potential of the sending
site to gain floor area bonuses, exemptions or similar potential development incentives.
Properties in the MU Zone District which do not currently contain a single-family home or
duplex established prior to the adoption of Ordinance #7, Series of 2005, shall be permitted
to base the calculation of TDRs on 100% of the allowable floor area on an equivalent-sized
lot in the R-6 zone district. This is only for the purpose of creating TDRs and does not
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permit the on-site development of 100% of the allowable floor area on an equivalent-sized
lot in the R-6 zone district. If the additional 20% of allowable floor area exceeds 500 square
feet, the applicant may not request a floor area bonus from HPC at any time in the future.
Any development order to develop floor area, beyond that remaining legally connected to
the property after establishment of TDR Certificates, shall be considered null and void.
Staff Findings: The allowable floor area for a detached single-family residence on a
5,256 sf lot in the R-6 zone district is approximately 3,031 sf after reductions due to
steep slopes on the property. The existing landmark is 2,405 sf. Unbuilt floor area
of 626 is available to convert to TDRs.
E. The proposed deed restriction permanently restricts the maximum development of the
property (the sending site) to an allowable floor area not exceeding the allowance for a
single-family or duplex residence minus two hundred and fifty (250) square feet of floor
area multiplied by the number of historic TDR certificates established.
For properties with multiple or unlimited floor areas for certain types of allowed uses, the
maximum development of the property, independent of the established property use, shall
be the floor area of a single-family or duplex residence (whichever is permitted) minus two
hundred fifty (250) square feet of floor area multiplies by the number of historic TDR
certificates established.
The deed restriction shall not stipulate an absolute floor area, rather shall stipulate a square
footage reduction from the allowable floor area for a single-family or duplex residence, as
may be amended from time to time. The sending site shall remain eligible for certain floor
area incentives and/or exemptions as may be authorized by the City Land Use Code, as
may be amended from time to time. The form of the deed restriction shall be acceptable to
the City Attorney.
Staff Findings: At the point of issuing a TDR certificate, the applicant will be required
to file a deed restriction that will permanently reduce the allowable floor area by 500
sf. All documents shall be reviewed by the City Attorney prior to execution.
F. A real estate closing has been scheduled at which, upon satisfaction of all relevant
requirements, the City shall execute and deliver the applicable number of historic TDR
certificates to the sending site property owner and that property owner shall execute and
deliver a deed restriction lessening the available development right of the subject property
together with the appropriate fee for recording the deed restriction with the County Clerk
and Recorder's office.
Staff Findings: This is a mandatory process that the applicant must pursue.
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G. It shall be the responsibility of the sending site property owner to provide building plans
and a zoning analysis of the sending site to the satisfaction of the Community Development
Director. Certain review fees may be required for the confirmation of built floor area.
Staff Findings: The applicant has provided detailed floor area calculations as part of
the proposal. Final calculations shall be reviewed by the Community Development
Director prior to the issuance of the TDR certificate.
H. The sale, assignment, conveyance or other transfer or change in ownership of transferable
development rights certificates shall be recorded in the real estate records of the Pitkin
County Clerk and Recorder and must be reported by the grantor to the City of Aspen
Community Development Department within five (5) days of such transfer. The report of
such transfer shall disclose the certificate number, the grantor, the grantee and the total
value of the consideration paid for the certificate. Failure to timely or accurately report such
transfer shall not render the transferable development right certificate void.
Staff Findings: This is a mandatory process that the applicant must pursue.
I. TDR certificates may be issued at the pace preferred by the property owner.
Staff Findings: N/A
J. City Council may find that the creation of TDRs is not the best preservation solution for the
affected historic resource and deny the application to create TDRs. HPC shall provide
Council with a recommendation.
Staff Findings: The applicant is requesting HPC recommend in favor of establishing
two (2) TDRs with this application. HPC is a recommending body and City Council
is the final authority for granting the TDR request.
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REGULAR MEETING HISTORIC PRESERVATION COMMISSION FEBRUARY 24,2021
Chairperson Thompson opened the meeting at 4:30 p.m.
Commissioners in attendance: Kara Thompson, Scott Kendrick, Roger Moyer, Jeff Halferty,
Sheri Sanzone
Commissioners not in attendance:
Staff present:
Amy Simon, Planning Director
Sarah Yoon, Historic Preservation Planner
Michelle Bonfils Thibeault, Planner II
Kate Johnson, Assistant City Attorney
Wes Graham, Deputy City Clerk
APPROVAL OF MINUTES: None
PUBLIC COMMENT: None
COMMISSIONER COMMENTS: None
DISCLOSURE OF CONFLICT: Ms. Sanzone is conflicted on 314 West Main - TDR
Referral.
PROJECT MONITORING: Ms. Simon stated she will be reaching out to Mr. Moyer about a
landscaping update regarding the log cabin on Main St.
CERTIFICATE OF NO NEGATIVE EFFECT: None
STAFF COMMENTS: Ms. Simon stated that they received an appeal from the applicant of
1020 E. Cooper regarding the decision on the affordable housing proposal.
Ms. Simon said that the Aspen Daily News will be running an article encouraging individuals to
volunteer on the HPC board.
CALL UPS: Ms. Yoon stated that she did take an item to City Council for call up notice 925
King street. She said it was not called up and City Council upheld HPC’s decision.
OLD BUSINESS: None
NEW BUSINESS: 212 N Monarch - TDR Referral. Alan Richman representing owners.
Mr. Richman stated that the owners have owned the property for 49 years, they've lived in the
property all that time and maintained it.
Mr. Richman said that the owner asked for an evaluation of the property to see if there was any
unused floor area that could be extinguished with one or more TDRs. Mr. Richman stated that
they discovered 626 sq ft. of unused floor area, which allows for two TDRs and is being
requested. He explained that the owner’s intent is to sell those TDRs and establish a trust for the
children of the family which will keep the property in the family for the long term.
STAFF COMMENTS: Ms. Thibeau stated that the allowable floor area for a 5,256sf lot is
3,031sf and the existing floor area is 2,405sf with a remaining floor area of 626sf which allows 2
TDRs. Ms. Thibeau stated that the staff supports the application.
Mr. Kendrick moved to approve Resolution #04-2021; Ms. Sanzone seconded.
ROLL CALL: Mr. Halfery, Yes; Ms. Thompson, Yes; Mr. Kendrick, Yes; Mr. Moyer, Yes; Ms.
Sanzone, Yes.
Ms. Sanzone left the meeting.
NEW BUSINESS: 314 West Main - TDR Referral. Sara Adams with BendonAdams.
Ms. Adams stated that she is representing the owners of the carriage house Smith, Elijah carriage
house located at 314, West main street. She said the property was built in 1890 and in 2002, the
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REGULAR MEETING HISTORIC PRESERVATION COMMISSION FEBRUARY 24,2021
9000sf. the lot was split into 2 properties. There's a 4500-sf. the lot that contains the main Queen
Ann style Victorian. The other lot is the subject of the TDR application for the carriage house.
Ms. Adams showed a site plan that depicted show you all the undeveloped area in front of the
carriage house. She said to maintain the relationship between the primary Queen Ann style
Victorian and carriage house the request for TDRs will essentially sterilize any development on
this property. Ms. Adams said that the 2,520.7 sf allowable FAR, the built FAR is 1,725.3 and
the unused FAR is 795.4 equaling 3 TDRs leaving 45.4 sf of FAR.
STAFF COMMENTS: Ms. Yoon stated that this is a recommendation to the City Council for
the establishment of TDRs. Ms. Yoon reviewed the history of the historic lot. She said that the
final floor area numbers will be verified prior to any issuance. Ms. Yoon said that there can be
795.16 sf. severed from this property in the form of 3 TDRs with 45.16 sf. remaining on the lot.
Ms. Yoon stated that staff is in support of the recommendation of the establishment of 3 TDRs.
Ms. Thompson stated that it is great to get the square footage off the front of the property. She
added she would not want to see anything built in front of the resource.
Mr. Moyer moved to approve Resolution #05-2021; Ms. Thompson seconded.
ROLL CALL: Mr. Halfery, Yes; Ms. Thompson, Yes; Mr. Kendrick, Yes; Mr. Moyer, Yes.
Ms. Sanzone returned to the meeting.
NEW BUSINESS: 227 East Bleeker Street - Final Major Development. Kim Raymond
Architecture + Interiors.
Ms. Raymond reviewed what was presented at the December 9th hearing. She showed the site
plan and landscape that include mostly grass in the front, flowerbeds, and a narrowed walkway
leading to the historic resource. Ms. Raymond said that the lilac bushes cannot be saved where
they stand now and will be relocated next to the transformer or in front of the paved parking
spot. She stated that they drop the plate height 8” to address the massing concern, however, the
civil engineer had to lift the new addition creating only a few inches difference of plate height.
Ms. Raymond stated that there is still a concern with the storm tech plan and this can be worked
out with staff and monitor. She said the preservation plan will be submitted soon. She said that in
the staff memo there was concern about the skylight and window not having enough separation,
she explained they added a thicker trim to separate. Ms. Raymond stated that they can add
thicker trim to all the gable overhang to relate to the historic cabin. She said that there is great
detail going into the preservation and restoration of the front open porch using historic pictures
and samples. Ms. Raymond said that they will work with the monitor regarding the renovations
of the historic chimney. She said that the skirting will be 6 inches of concrete. Ms. Raymond
outlined the materials that will be used on the historic structure and new addition. She adds that
there will be added louver to the second-floor deck on the addition for privacy. Ms. Raymond
said that they are not sure where the downspouts will go at this time, that this could be worked
with the monitor.
Ms. Thompson asked how large will the pavers be in the rain garden and the height of the pavers
to the grass.
Ms. Raymond stated that there will only be a few pavers and will be a 6-inch step-down.
Ms. Thompson asked what will the material be for the front porch steps.
Ms. Raymond said they will be using wood.
Ms. Thompson asked what material will be used on top of the linking element.
Ms. Raymond said that it will be TPO material.
Mr. Halferty asked what material will be used for the skirt.
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212 NORTH MONARCH ST.
ASPEN, CO 81611BEDROOMBEDROOMBEDROOMBEDROOM23'-1058"2'-858"8'-478"13'-638"4'-0"2'-85
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TRUE DIMENSIONSTHESE DRAWINGS ARE PRODUCED IN14" SCALE. IF THIS ABOVE DIMENSIONDOES NOT MEASURE WITH A RULERONE INCH (1"), THAN THESE DRAWINGSHAVE BEEN ENLARGED OR REDUCEDTHEREFORE AFFECTING THE LABELEDSCALE.THESE DRAWINGS ARE THE PROPERTY& COPYRIGHT OF TRUE DIMENSIONS,ASPEN, CO & SHALL NEITHER BE USEDON ANY OTHER WORK NOR BE USEDBY ANY OTHER PERSON FOR ANY USEWHATSOEVER WITHOUT WRITTENPERMISSION.1 " INCHKITCHENPANTRYDINING ROOMLAUNDRYLIBRARYLIVING ROOMBATH48'-612"13'-638"8'-638"23'-918"2'-858"35'-10"
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13'-0"14 sq. ft. exempt30 sq. ft. exemptFront Porch112 sq. ft.exemptDeck 201 sq. ft.exempt5'-10"Lower Level100% below grade245 sq. ft. - exempt263
7895 SOSWGEFOUND REBAR & 1-1/4"ORANGE PLASTIC CAP LS28643SITE BENCH MARKFOUND REBAR & 1-1/4"YELLOW PLASTIC CAP LS9018ELEVATION:7899.14SET REBAR & 1-1/4"ORANGE PLASTIC CAPTNC PLS38215(FOUND LARGE SPIKE SE-1'±)FOUND REBAR & 1-1/2"ALUMINUM CAP LS2376FOUND REBAR & 1-1/4"YELLOW PLASTIC CAPHCE LS38215WOOD RET
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ELECTRIC PEDESTALCATV PEDESTALOSWPOWER POLE (CUT DOWN)WATER SHUTOFFWOOD FENCE SSANITARY MANHOLEGAS METERELECTRICAL METERGLEGENDESURVEYOR'S CERTIFICATIONSURVEY NOTES:5.THIS PROPERTY IS SUBJECT TO RESERVATIONS, RESTRICTIONS, COVENANTS AND EASEMENTS OF RECORD OR INPLACE.6.THIS SURVEY WAS PREPARED WITHOUT THE BENEFIT OF A TITLE COMMITMENT, THEREFORE, ANY EXCEPTIONS TOTITLE THAT MAY AFFECT THE SUBJECT PROPERTY HAVE NOT BEEN REVIEWED BY TRUE NORTH COLORADO, LLC.7.ELEVATIONS SHOWN HEREON ARE BASED ON NORTH AMERICAN VERTICAL DATUM OF 1988 (NAVD 88)REFERENCED FROM NATIONAL GEODETIC SURVEY (NGS) STATION S 159 HAVING AN ELEVATION OF 7720.88.8.CONTOUR INTERVAL EQUALS 1 FOOT.TRACT R - 44 STARWOOD FIVESECTION 35, TOWNSHIP 9 SOUTH, RANGE 85 WEST OF THE 6TH PMCOUNTY OF PITKIN, STATE OF COLORADOIMPROVEMENT SURVEY PLAT TRUE NORTH COLORADO LLC.A LAND SURVEYING AND MAPPING COMPANYP.O. BOX 614 - 386 MAIN STREET UNIT 3NEW CASTLE, COLORADO 81647(970) 984-0474www.truenorthcolorado.comPROJECT NO: 2020-447DATE:December 14, 2020DRAWNRPKSURVEYEDMANSHEET1 OF 1TRUENORTHA LAND SURVEYING AND MAPPING COMPANY10'5'20'SCALE: 1" = 10'N0NOTICE: ACCORDING TO COLORADO LAW YOU MUST COMMENCE ANYLEGAL ACTION BASED UPON ANY DEFECT IN THIS SURVEY WITHIN THREEYEARS AFTER YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY ANYACTION BASED UPON ANY DEFECT IN THIS SURVEY BE COMMENCED MORETHAN TEN YEARS FROM THE DATE OF CERTIFICATION SHOWN HEREON.PROPERTY DESCRIPTION:PROPERTY ZONINGMETAL FENCE SLOPES264
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Notes
212 North Monarch Street
THIS MAP IS FOR INFORMATIONAL PURPOSES.
Pitkin County GIS makes no warranty or guarantee
concerning the completeness, accuracy, or reliability
of the content represented.
Map Created on 11:59 AM 12/14/20 at http://www.pitkinmapsandmore.com
State Highway
Road Centerline 4K
Primary Road
Secondary Road
Service Road
Rivers and Creeks
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Intermittent
River, Lake or Pond
Town Boundary
Federal Land Boundary
BLM
State of Colorado
USFS
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