HomeMy WebLinkAboutagenda.council.regular.20150727
CITY COUNCIL AGENDA
July 27, 2015
5:00 PM
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues
NOT scheduled for a public hearing. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VI. Notice of Call -Up
a) Notice of call-up - 411 E. Hyman, HPC approval
VII . Consent Calendar (These matters may be adopted together by a single motion)
a) Resolution #73 Series of 2015 - Waterline Replacement Design, Roaring Fork Rd
b) Resolution #77, Series of 2015 - 100 Percent Renewable Energy Contracts
c) Council Board Appointments
d) Minutes - July 13, 2015
VIII. First Reading of Ordinances
a) Ordinance 27, 2015 - Land Use Code Reliance Code Amendment
IX. Public Hearings
a) 620 E. Bleeker, Aspen Historical Society - Lot Split - Continued to 8-24-2015
X. Action It ems
a) 400 E. Cooper Ave. (Golden Horn Bld) - Easement request
XI. Adjournment
XII. Executive Session - C.R.S. 24.6.402(4)(b)conference with an attorney and (e)
Determining positions relative to matters that may be subject to negotiations
Next Regular Meeting August 10, 2015
COUNCIL’S ADOPTED GUIDELINES
• Invite the Community to Participate with Us in Solution-Making
• Tone and Tenor Matter
• Remember Where We’re Living and Why We’re Here
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
MEMORANDUM
TO: Mayor Skadron and Aspen City Council
FROM: Justin Barker, Planner
RE: Notice of HPC approval of Conceptual Major Development,
Conceptual Commercial Design, Demolition, and Growth
Management Review, and Mountain View Plane exemption for 411 E.
Hyman Ave., HPC Resolution #20, Series of 2015
MEETING DATE: July 27, 2015
BACKGROUND: On June 10, 2015, the
Historic Preservation Commission approved
Conceptual Major Development,
Conceptual Commercial Design,
Demolition, and Growth Management
Review, and Mountain View Plane
exemption for a project at 411 E. Hyman
Ave. The existing development on the
1,400 square foot property is a two-story
building with commercial on the first floor
and a free-market residential unit on the
second floor. Built in the 1960s, this
building is not historically significant, but is
located within the Commercial Core Historic District, and is adjacent to 413 E. Hyman, which is
on the National Register. The building is also intersected by the Wheeler Opera House view
plane.
The proposal is to demolish the existing building and construct a new one-story commercial space
that occupies the entire footprint of the lot. The proposed building would be similar in height to the
existing building. HPC has also accepted a cash-in-lieu payment for the required provision of public
amenity and off-street parking, due to site constraints. Conditions of approval include further study
of façade elements to better relate to the design guidelines and traditional design in downtown.
HPC has exempted the proposed development from the view plane requirements, pursuant to
Section 26.435.050.C(1), due to existing development already blocking the same view plane.
Typically, on-site replacement would be required as mitigation for the loss of the residential unit.
However, pursuant to Section 26.470.070.5(4), HPC has determined that on-site replacement is not
feasible due to site constraints, and has accepted the provision of Affordable Housing Credits as
mitigation. The view plane exemption and affordable housing mitigation are not subject to the call-
up procedure.
Drawings representing the Conceptual approval are attached as Exhibit A. The draft HPC
Resolution is attached as Exhibit C. The board approved the project by a 6-0 vote.
PROCEDURE : This is not a public hearing and no staff or applicant presentation will be made at
the July 27 th Council meeting. If you have any questions about the project, please contact the
staff planner, Justin Barker, 429-2797 or justin.barker@cityofaspen.com. Pursuant to Section
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26.412.040(B), City Council has the option of exercising the Call Up provisions outlined in
Section 26.412.040(B) within 15 days of notification on the regular agenda.
For this application, City Council may vote to Call Up the project at their July 27 th meeting. If
City Council does not exercise the Call Up provision, the HPC Resolution shall stand.
ATTACHMENTS :
Exhibit A: Conceptual Design
Exhibit B: HPC Minutes – June 10, 2015
Exhibit C: HPC Resolution #20, Series of 2015
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EXHIBIT A
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EXHIBIT BP5
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EXHIBIT CP10
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MEMORANDUM
TO: Mayor and City Council
FROM: Andy Rossello, Utilities Engineer
THRU: Dave Hornbacher, Director of Utilities and Environmental
Initiatives
DATE OF MEMO: July 17th , 2015
MEETING DATE: July 27 th , 2015
RE: Waterline Replacement Design, Roaring Fork Rd.
REQUEST OF COUNCIL: Staff requests a contract award to Roaring Fork Engineering in the
amount of $46,320.00 for the design of a water main replacement on Roaring Fork Road.
PREVIOUS COUNCIL ACTION: Council has approved this capital project with the approval
of a supplemental allocation to the 2015 Budget.
BACKGROUND: The existing conditions of the water line are currently questionable, with no
less than 5 failures having occurred on the line in the past ten years. The existing line is a 6” Cast
Iron Line which connects two 8 inch Ductile Iron Pipes, creating a pinch point, potentially
restricting the flow between these two systems. Bringing the line up to current city standards
involves upsizing the line so any pinch points are removed and pipe material brought into
conformance with current standard design criteria. Additionally, this design allows for the city to
prepare for pressure zone modifications as proposed in the City’s long range asset management
plan, the 2013 Water Utility System Master Plan, which will lead to more efficient management
of the city’s water distribution system.
DISCUSSION: A site specific Bid-Ready project will be created, from the research conducted,
to replace an existing Cast Iron waterline with a new Ductile Iron Pipe system. The project may
include several phases. Initially the engineer will be asked to research existing conditions through
As-Built mapping and field inspection including, but not limited to site visits, communication
with affected property owners, excavation to determine the existing conditions of the pipe and
any existing restraint (i.e. mega-lugs, thrust blocks, tie rods). Upon completion of the existing
conditions research the Engineer will be tasked with providing a design for the new Ductile Iron
Pipe in a city approved alignment conforming to the City of Aspen’s most recently issued Water
Distribution System Standards. Other tasks include, developing all bid documents, and
completing all required permitting (including but not limited to Pitkin County). The design
components will need to include a site specific Construction Management Plan to ensure all
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customers water supply will not be affected for an extended duration during the construction
phase. This can be accomplished through temporary service design and planning, not replacing
the line “in place” or any combination of these two approaches. Finally the engineer will propose
and present new easements for the newly proposed waterline to any and all affected property
owners.
This project was bid as a request for proposals. Four engineering design proposals were received
and reviewed by a panel of three city staff members. Roaring Fork Engineering’s Proposal was
selected based on responsiveness to the criteria (Approach, cost, timeframe, methodology, and
experience) set forth in the Request for Proposals.
FINANCIAL/BUDGET IMPACTS: The funds for this design are requesting approval in the
accompanying Supplement Funding Request.
ENVIRONMENTAL IMPACTS: The potential environmental impacts of this project will be
determined during the design phase.
RECOMMENDED ACTION: We request the council approve the expenditure of $46,320.00
for the design of a water main replacement on Roaring Fork Road.
ALTERNATIVES: Alternatives include, allowing the pipe to continue function as it is or,
abandoning this infrastructure and looking for a new route to serve customers.
PROPOSED MOTION: I move to approve Resolution #73
CITY MANAGER COMMENTS:
ATTACHMENTS:
A. Memo for Supplemental Funding Request
B. Proposal from Roaring Fork Engineering
C. Resolution # 73
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RESOLUTION # 73
(Series of 2015)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND ROARING FORK ENGINEERING 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
design of Roaring Fork Road Waterline Replacement, between the City of Aspen
and Roaring Fork Engineering, 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 design of Roaring Fork Road Waterline Replacement between the City of
Aspen and Roaring Fork Engineering, 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 27 th day of July, 2015.
Steven Skadron, Mayor
I, Linda Manning, 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, July, 27, 2015.
Linda Manning, City Clerk
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MEMORANDUM
TO: Mayor and City Council
FROM: Mike McDill, Deputy Utility Director
THRU: Dave Hornbacher, Director of Utilities & Environmental
Initiatives
DATE OF MEMO: July 17, 2015
MEETING DATE: July 27, 2015
RE: Fall Supplemental Funding Requests: Design of the Roaring
Fork Road Water Line Replacement
REQUEST OF COUNCIL: Staff is requesting a capital budget supplemental request in the
form of a reappropriation of 2016 Water Capital Budget funds into the Water Fund 2015 budget
for the Design of the Roaring Fork Road Water Line Replacement. Staff is requesting $50,000
for this purpose based on the attached competitively selected proposal. If Council approves the
re-appropriation of $50,000 from the 2016 Roaring Fork Road Water Line Replacement project
budget into the 2015 project budget, then a balance of $500,000 would remain for completion of
the project in 2016.
BACKGROUND: The project to replace the existing under-sized and frequently repaired
waterline serving Roaring Fork Road with a new 8-inch ductile iron system was identified as a
high priority in the 2013 Water Utility System Master Plan and is currently programmed in the
2015 10-year Asset Management Plan (AMP) to be constructed in 2016. The budgeted amount
for this project in 2016 is $550,000. Authorizing these design funds this year will allow us to bid
this work in February or March of 2016 and have the project construction ready on April 1. This
is a substantial amount of work to complete and will probably require the whole construction
season. Getting an early start on it will greatly improve the probability of completing all of the
work in one year and avoiding any need to return to the neighborhood again in 2017 to complete
construction re-vegetation and clean-up. Bidding this work early in the construction season will
probably also improve the competitiveness of our bidders.
DISCUSSION: The attached proposal is for $46,320. The requested supplemental
appropriation will provide a contingency of about eight percent, in case we need additional
potholing or see a need to slightly increase the design perimeters.
As for the intended construction work, it is important to complete the water line replacement
work on Roaring Fork Road as quickly, efficiently and cost effectively as possible. Moving
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these funds forward into 2015 will increase the probability that all of the construction work to be
completed in 2016 and reduce the construction impacts to the neighborhood.
FINANCIAL/BUDGET IMPACTS: This action will result in an increase of $50,000 in 2015
to the Water Capital Budget and a similar reduction in the 2016 Water Capital Budget.
ENVIRONMENTAL IMPACTS: There are no significant environmental implications with
allowing the funding for design work to occur in 2015 as opposed to 2016. Increased
construction efficiencies will be possible through the reduction of mobilizations due to the
amount of work which will all occur in 2016.
RECOMMENDED ACTION: Staff recommends Council approves the supplemental
appropriation of $50,000 into the Water Department’s 2015 budget.
ALTERNATIVES: If not approved, the design will start in January 2016, after the selected
consultant is authorized to proceed, and construction work will probably not start until mid-
summer and could continue into 2017. The City could also experience increased costs as the cost
of construction related goods and services (such as concrete, steel, services) may rise, due to
bidding the project late in the construction season.
PROPOSED MOTION: “I move to approve the addition of $50,000 in funds to the Water
2015 budget for the design of the Roaring Fork Road Water Line Replacement capital project.”
CITY MANAGER COMMENTS:
Attachments:
A. Memo For Waterline Replacement Design
B. Proposal from Roaring Fork Engineering
C. Resolution # 73
\2015 Budget\20150715 Fall Supplemental for Roaring Fork Replacement Design
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MEMORANDUM
TO: Mayor and City Council
FROM: William Dolan, Renewable Energy Manager
THRU: David Hornbacher, Director of Utilities and Environmental Initiatives
DATE OF MEMO: July 17 th , 2015
DATE OF MEETING: July 27 th , 2015
RE: 100% Renewable Energy Contracts
PREVIOUS COUNCIL ACTION:
• Step 1 : November 19 th , 2013. During this work session, City staff and NREL representatives
covered foundational concepts and background information (contract history, conceptual
definitions, etc.)—effectively laying the groundwork for steps 2 and 3;
• Step 2 : April 21 st , 2014. This meeting involved a surface-level presentation of all alternatives
explored by City staff and NREL, and an assessment of each according to the project criteria
chosen during Step 1. Staff requested that Council select ~3 alternatives from this list for final
research/investigation by staff. The results of this research was the subject of Step 3;
• Step 3 : December 9 th , 2014. This step dealt with a more in-depth discussion of the alternatives
chosen by Council (wind and landfill gas (LFG)), as well as covered other renewable initiatives
and opportunities beyond 2015 (i.e., microhydro, community solar, etc.). Council reaffirmed the
current direction, and staff provided updates on the current status of negotiations with the City’s
wholesale energy supplier, the Municipal Energy Association of Nebraska (MEAN). Staff also
informed Council of the expected structural changes pending at MEAN, which dealt with the
way revenue collection was calculated. The changes for calculating revenue collection applied
to all MEAN members and is independent of how council elects to move forward with
renewables.
• Step 4 : April 21 st , 2015: During this work session, staff updated Council on the draft renewables
contract and status of ongoing negotiations, as well as provided current timeline and cost
information. Andrew Ross from MEAN also provided a brief update on the structural cost
recovery changes taking place within that organization.
• Step 5 : July 27 th , 2015: Staff will present Council with finalized contracts for approval that
facilitate Aspen’s renewable goals, but also ensure that said contract(s) aligns with the City’s
stated environmental values and fiduciary responsibilities.
DISCUSSION: Based on the outcome of the December 9th, 2014 meeting, during which Council
instructed staff to procure the most ideal combination of additional wind purchases and landfill gas
(LFG), staff entered into negotiations with MEAN to do just that.
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The current outline of the new renewables contract is as follows:
2.5-year term (expires December 31 st , 2017) starting September 1, 2015
Approximately 20,400,768 kWh/yr. of new renewables
90% wind, 5% LFG, 5% LFG RECs
New wind contract has no set monthly allocations 1
New LFG contract does have set monthly allocations
Incrementally added cost of ~$215,591 for first full year (or ~$72,000 for CY 2015) 2
Longer-term contract to be negotiated over the course of current contract
The current cost of the wind product offered by MEAN is $51/MWh, compared to $37.75/MWh for
MEAN’s standard energy product (excluding capacity and transmission). While this represents a
premium over current energy costs, staff is working on creating a long-term fixed rate for wind, which
will become more competitive with MEAN energy rates as they continue to rise.
MEAN sent the first draft of contracts to staff on April 10 th , 2015, which were the basis of continued
negotiations and several iterative drafts throughout the spring and summer. Staff now has a finalized
contract ready for Council approval, which will then clear the way for MEAN Board approval in
August.
FINANCIAL IMPACTS: In preparation for the 2015 budget, staff estimated—and included—the
added costs to achieve 100% renewable energy at $283,940. This number referred to the costs over and
above the null alternative. Based on more current and complete information, staff and MEAN now
believes that this premium will be lower, or around $215,591 to achieve the first full year of 100%
renewable energy.
The price of Aspen’s wholesale fossil-fuel based energy has been escalating quickly (8% in 2013, and
18.5% in 2014), making a fixed-cost wind energy product increasingly competitive from a pure cost
standpoint.
ENVIRONMENTAL IMPACTS: The broader goal of this exercise is to set an example for other
electric utilities—municipal or not—to follow. Locally speaking, replacing the remaining ~25% of
fossil-based electricity in Aspen’s portfolio with the wind (and LFG) energy in these contracts means
reducing consumption of fossil-based electricity by approximately 15-20 million kWh/yr. (this equates
to approximately 30-40 million lbs. of avoided CO2 emissions per year). Achievement of this goal will
also place Aspen amongst an elite group of municipalities nationally who have been able to meet this
ambitious goal, further solidifying Aspen’s leadership position with regard to environmental initiatives.
REQUESTED COUNCIL ACTION: Approve the contracts as presented, which will then be brought
to the MEAN Board meeting in Nebraska on August 21 st for final approvals and signatures.
1 New wind will only kick in when needed – e.g., only during months when our existing resources do not get us to 100%
(there are already months, such as April and May, where the utility is consistently at or above 100% renewable due to high
hydro production). This differs from our existing wind contracts, which are take or pay – i.e., they have set monthly
purchase obligations.
2 Incremental cost breakdown: approximately $185,351 for new wind and $30,240 for new LFG, totaling a net budget
impact of +$215,591 for the first full year of 100% renewable energy. Since the contracts will take effect on September 1st,
2015, the cost for calendar year 2015 will be around $72,000.
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CITY MANAGER COMMENTS:
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
ATTACHMENTS:
1) Exhibit A - Third Supplemental Agreement For Wind-Generated Energy Purchase Between
Municipal Energy Agency of Nebraska and The City of Aspen, Colorado
2) Exhibit B - Third Revised Supplemental Agreement between Municipal Energy Agency of
Nebraska and The City of Aspen, Colorado 3
3) Exhibit C - Supplemental Agreement for Purchase of Landfill Gas Energy Environmental
Attributes between Municipal Energy Agency of Nebraska and The City of Aspen, Colorado
3 This contract is not a new one like the two new renewable contracts, but rather one of our existing contracts that needs
some updating based on the new wind and landfill gas agreements.
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RESOLUTION #77
(Series of 2015)
A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, APPROVING
AMENDED CONTRACT TERMS BETWEEN THE CITY OF ASPEN, COLORADO AND
MUNICIPAL ENERGY AGENCY OF NEBRASKA (MEAN) SETTING FORTH TERMS AND
CONDITIONS REGARDING ADDITIONAL WIND ENERGY AND LANDFILL GAS
ATTRIBUTES FOR THE ASPEN ELECTRICAL UTILITY AND AUTHORIZING THE CITY
MANAGER TO EXECUTE RELATED CONTRACT AMENDMENTS IMPLEMENTING
THESE PURCHASES
WHEREAS, the Aspen City Council plans to meet 100% of the gross electric demands of its municipal
electric utility with renewable energy from September 1 st , 2015 and every year thereafter, and
WHERAS, there have been submitted to the City Council three contract amendments between the City of
Aspen, Colorado and Municipal Energy Agency of Nebraska (MEAN), including: Third Supplemental
Agreement for Wind Energy Purchase; Supplemental Agreement for Purchase of Landfill Gas Energy
Environmental Attributes; and Third Revised Supplemental Agreement (to the Electrical Resource
Pooling and Total Power Requirements Power Purchase Agreements), copies of which are annexed hereto
as Exhibits 1, 2 and 3, respectively, and made a part thereof, and
WHEREAS, the above amended agreements will provide the contractual basis to achieve the goal of
100% renewable electric energy to its electric utility customers.
NOW, THEREFORE, BE IT RESOLVED BY THE ASPEN CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves the Third Supplemental Agreement for Wind
Energy Purchase between Municipal Energy Agency of Nebraska and The City of Aspen, Colorado,
including Exhibits A, B, and C, copies of which are annexed hereto and incorporated herein, to increase
the amount of wind energy purchased through MEAN, attached as Exhibit 1, and does hereby authorize
the City Manager of the City of Aspen to execute said contract amendment on behalf of the City of
Aspen.
Section 2
That the City Council of the City of Aspen hereby approves the Supplemental Agreement for Purchase of
Landfill Gas Energy Environmental Attributes between Municipal Energy Agency of Nebraska and The
City of Aspen, Colorado, including Exhibits A, B, C and D, copies of which are annexed hereto and
incorporated herein, to initiate purchases of landfill gas-based energy and attributes through MEAN,
attached as Exhibit 2, and does hereby authorize the City Manager of the City of Aspen to execute said
contract on behalf of the City of Aspen.
Section 3
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That the City Council of the City of Aspen hereby approves the Third Revised Supplemental Agreement
between the City of Aspen, Colorado and Municipal Energy Agency of Nebraska (MEAN), including
Exhibits A, and B, copies of which are annexed hereto and incorporated herein, regarding approval of
contract amendments to the Service Schedule M Total Power Requirements Power Purchase Agreement
and Electrical Resource Pooling Agreement through (MEAN), attached as Exhibit 3, and does hereby
authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 27 th day of
July, 2015.
__________________________
Steven Skadron, Mayor
I, Linda Manning, 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 July 27, 2015.
__________________________
Linda Manning, City Clerk
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Third Supplemental Agreement
For
Wind-Generated Energy Purchase
Between
Municipal Energy Agency of Nebraska
And
The City of Aspen, Colorado
This Third Supplemental Agreement for Wind-Generated Energy Purchase
(“Agreement”), pursuant to City’s effective firm power Service Schedule of the Electrical
Resources Pooling Agreement (“ERPA”), is dated and made between the Municipal Energy
Agency of Nebraska, an agency and political subdivision of the State of Nebraska (“MEAN”),
and the City of Aspen, Colorado (“City”) on this _____ day of _____________________,
20____. MEAN and City are sometimes referred to collectively as the “Parties” and individually
as “Party”.
WHEREAS, City is a municipal corporation created under the laws of the State of
Colorado; and
WHEREAS, City and MEAN have entered into an Electrical Resources Pooling
Agreement, a Service Schedule M Agreement for firm power service (“Service Schedule
Agreement”), and a Third Revised Supplemental Agreement executed as of _______________,
20___ (“SSM Third Revised Supplemental Agreement”), pursuant to which MEAN is to acquire
and deliver to City all of City’s electrical energy requirements except that with the Western Area
Power Administration and that supplied by certain City renewable energy production facilities
listed on Exhibit B to the SSM Third Revised Supplemental Agreement; and
WHEREAS, City and MEAN have entered into a Supplemental Agreement for Wind-
Generated Energy Purchase executed as of October 31, 2002 (“First Supplemental Wind
Agreement”), pursuant to which MEAN provides to City certain amounts of wind-generated
electrical energy as part of City’s total electrical energy requirements; and
WHEREAS, City and MEAN have entered into a Second Supplemental Agreement for
Wind-Generated Energy Purchase executed as of August 4, 2005 (“Second Supplemental Wind
Agreement”), pursuant to which MEAN provides to City certain additional amounts of wind-
generated electrical energy as part of City’s total electrical energy requirements; and
WHEREAS, simultaneously with execution of this Agreement, City and MEAN have
entered into or intend to enter into a Purchase of Landfill Gas Energy Environmental Attributes,
pursuant to which MEAN provides to City certain amounts of environmental attributes; and
WHEREAS, City has requested MEAN to provide to City an additional amount of wind-
generated electrical energy that will satisfy City’s remaining electrical energy requirements; and
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WHEREAS, City has committed, on an annual basis, to meeting 100% of the gross
electric demands of its municipal utility with renewable energy from the end of 2015 and every
year thereafter; and
WHEREAS, due to unique circumstances affecting this sale of additional wind-generated
electrical energy by MEAN to City, the Parties desire to agree on certain contractual terms and
conditions specific to this third sale and in addition to those that normally attend the sale of the
electrical energy by MEAN to a MEAN participant; and
WHEREAS, City understands and acknowledges that the energy output from a wind
turbine is weather sensitive and speculative in nature and, therefore, it is likely that MEAN may
incur scheduling and/or delivery imbalance penalties and surcharges regarding the delivery of
such energy to City; and
WHEREAS, MEAN has acquired, and may continue to acquire, wind generation
resources to generate and deliver electrical energy for the benefit of MEAN participants and
other regional suppliers; and
WHEREAS, MEAN has acquired, and may continue to acquire under certain
circumstances as provided in this Agreement, the rights to environmental attributes which may
be used to serve MEAN’s obligations hereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and other good and valuable consideration the sufficiency of which is hereby
acknowledged by the Parties, the Parties hereby agree as follows:
1. Representation and Warranties.
A. Within thirty (30) days of execution of this Agreement, City shall provide an
opinion of legal counsel that this Agreement has been duly authorized, executed
and delivered by City and that all financial obligations undertaken or assumed by
City, in connection herewith, are valid and enforceable against City in accordance
with their terms.
B. City has established by ordinance a Utility Enterprise (Enterprise) having all of
the authority to act and operate in all respects as an Enterprise under Colorado
law, Colorado Constitution Article X, §20.
C. City and Enterprise represent and warrant that this Agreement has been executed
in compliance with or is otherwise not subject to Article X, §20, of the Colorado
Constitution (commonly known as the Taxpa yer’s Bill of Rights or “TABOR”).
2. Obligations of the Parties.
A. MEAN shall generate or cause to be generated wind-generated electrical energy,
or, as permitted by this subsection A., MEAN shall generate or cause to be
generated electrical energy and shall acquire equivalent amounts of
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Environmental Attributes, as defined below (“Contract Wind Energy”), and shall
cause to be delivered to City equivalent amounts of electrical energy, in amounts
sufficient to serve City’s total power requirements in excess of the following
resources, which are listed in no particular order of priority and shall be applied to
City’s invoices from MEAN in the order previously agreed under such
agreements: City’s allocation of firm power and energy from the Western Area
Power Administration, resources listed in the then-current Exhibit B to the SSM
Third Revised Supplemental Agreement, City’s purchases from MEAN under the
First Supplemental Wind Agreement and Second Supplemental Wind Agreement,
City’s purchases from MEAN under the Service Schedule Agreement, which will
be calculated in an amount equivalent to the energy which was generated to create
the environmental attributes that City purchases under that certain Supplemental
Agreement for Purchase of Landfill Gas Energy Environmental Attributes
between MEAN and the City (“LFG Agreement”), and Support Energy as
described below.
City and MEAN hereby agree that City’s purchases under this Agreement shall
include but not be limited to Support Energy, as defined in the then-current
Schedule of Rates and Charges to the City’s Service Schedule Agreement with
MEAN. The portion of Contract Wind Energy that satisfies and replaces City’s
Support Energy requirements will be billed at the rate as described in Section 3.A.
for Support Energy.
True-Up. In the event that in any year the energy generated by the sources listed
on Exhibit C hereto is not sufficient to allow MEAN to fulfill its contractual
obligations for such year regarding sales of wind-generated electrical energy from
the sources in the MEAN Wind Resource Pool, for reasons including but not
limited to events of force majeure, MEAN shall be permitted to acquire
Environmental Attributes to fulfill its obligations under this Agreement for such
year as described above. MEAN agrees not to enter into this Agreement with the
sole intention of fulfilling this contractual obligation by purchasing
Environmental Attributes. For any year in which MEAN purchases
Environmental Attributes to fulfill its obligations hereunder, MEAN shall provide
City with written notification of such purchase. Such notification shall state the
amount of energy generated by the MEAN Wind Resource Pool for the applicable
period of time, the amount of Environmental Attributes purchased to fulfill
MEAN’s contractual obligations to all participants in the MEAN Wind Resource
Pool for the applicable time period, and the justification for such purchase.
B. The generation source(s) of Contract Wind Energy may include but not be limited
to the sources listed on Exhibit C, attached hereto and made part of this
Agreement (collectively, the “MEAN Wind Resource Pool”). Upon approval of a
modification to the MEAN Wind Resource Pool, a revised Exhibit C shall be
issued by MEAN and shall be deemed part of this Agreement.
C. For purposes of this Agreement, “Environmental Attributes” shall mean with
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respect to a specified quantity of the wind-generated electricity, the right of a
purchaser of such Environmental Attributes to claim, under applicable energy
generation disclosure and tracking laws and regulations, all of the non-energy
attributes and value associated with the generation of such renewable power,
including: any green tags, tradable renewable certificates or similar renewable
energy certificates, credits, values or premiums associated with such renewable
energy generation; any output-based incentive, allocation, credit, value, set-aside
allowance or non-energy attribute relating to or arising out of the production of
renewable wind energy generation, and emission and greenhouse gas reductions;
whether any of the foregoing arises pursuant to existing or future energy
generation disclosure and tracking laws and regulations, or existing or future
certification, certification program, trading market or exchange; provided,
however, that for purposes of this Agreement, Environmental Attributes shall
specifically exclude any and all state and federal production tax credits,
investment tax credits and any other tax credits which are or will be generated by
facilities within the MEAN Wind Resource Pool or by other facilities from which
the electricity and Environmental Attributes provided hereunder are generated.
The Parties agree that the Environmental Attributes are not currently certified, and
it is not anticipated that they will be certified by MEAN at any time. MEAN
represents that the amount of Environmental Attributes which MEAN enters into
bilateral agreements to sell from the MEAN Wind Resource Pool generation in
each calendar year during the term of this Agreement shall not exceed the sum of
(i) actual energy production by the MEAN Wind Resource Pool in such calendar
year, plus (ii) Environmental Attributes procured by MEAN in such calendar year
in accordance with this Agreement.
It is expressly agreed that City shall own the Environmental Attributes, as defined
above, of the Contract Wind Energy actually generated and sold to City pursuant
to this Agreement. MEAN acknowledges receipt of a certified copy of Resolution
No.18, Series of 2005, adopted by the governing body of City on March 16, 2005,
approving the Canary Initiative for the creation of “The Aspen Global Warming
Alliance” and expressing City’s desire to contract with MEAN to increase City’s
purchase of wind-generated energy. Such resolution is hereby deemed sufficient
to memorialize City’s declaration of intent to retain all rights to such
Environmental Attributes throughout the term of this Agreement. Unless
otherwise agreed in writing by MEAN and City, MEAN shall have no right to
transfer or sell the Environmental Attributes of City to any other MEAN
participant or third party(ies), and City shall be ineligible to receive any financial
or billing credit(s) for any revenue from approved transfers or sales by MEAN of
the Environmental Attributes owned by any other MEAN participant or MEAN.
D. [RESERVED.]
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E. MEAN shall use its available resources and its best efforts to prevent any
scheduling, imbalancing, or distribution penalties or surcharges from being
incurred in the delivery of the wind-generated electrical energy to City.
F. City shall receive energy amounts equivalent to the Contract Wind Energy for the
term of this Agreement and City shall pay all associated monthly charges, as
described in Section 3 below.
3. Charges.
A. City agrees to pay all monthly charges, as set forth in Exhibit A of this
Agreement, associated with generation and delivery of the Contract Wind Energy;
provided, however, that for the portion of Contract Wind Energy that serves as
Support Energy (as defined in Section 2) the Wind Energy Output charged shall
be the higher of the wind energy output charge set forth in Exhibit A or the
Support Energy Rate as set forth in the then-current Schedule of Rates and
Charges to City’s Service Schedule Agreement. The charges and costs are subject
to change from time to time. Written notice of changes to the wind energy output
charge, listed on Exhibit A of this Agreement, shall be provided by issuance of a
revised Exhibit A to City within thirty (30) days of approval by the MEAN
Management Committee or the MEAN Board of Directors.
B. The Parties agree, for the term of this Agreement, that the monthly Contract Wind
Energy under this Agreement will be calculated as the difference between (i) the
City’s Total Metered Energy, as defined below, and (ii) the energy actually
supplied by the resources listed in Section 2.A.i.-2.A.v. during such month. For
purposes of this Agreement, Total Metered Energy shall be equal to the measured
energy at the Point of Measurement, adjusted for losses to the Point of Delivery.
The capitalized terms “Point of Measurement” and “Point of Delivery” shall have
the meanings ascribed thereto in the then-current Schedule of Rates and Charges
to the City’s Service Schedule Agreement with MEAN. There shall be no
capacity credit applied for the wind resource since it is considered a non-firm
resource, therefore City will remain subject to the Fixed Cost Recovery Charge
(or any successor charge) under the then-current Schedule of Rates and Charges
for such Service Schedule Agreement with no reduction for purchases under this
Agreement. In the event that MEAN determines that a reliable level of capacity
can be accredited to its wind resources in accordance with Regional Transmission
Organization (RTO)/Independent System Operator (ISO) guidelines and industry
best practices, MEAN will consider applying the appropriate capacity
accreditation to reduce the impact of the Fixed Cost Recovery Charge on all
participants in the MEAN Wind Resource Pool. Such reduction of the impact of
the Fixed Cost Recovery Charge may be implemented via a reduced MEAN Wind
Resource Pool energy rate if no wind-related fixed costs are part of the Fixed Cost
Recovery Charge.
C. City acknowledges and agrees that the charges described above will be assessed
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each month regardless of actual production of the MEAN Wind Resource Pool in
such month, and that Contract Wind Energy will be trued up at least annually in
accordance with Section 2.A.
D. Except with regard to the energy charge and support energy rate, for which
alternative rates are specified above, all provisions of the then-current Schedule of
Rates and Charges for the Service Schedule Agreement shall apply to City
through the term of this Agreement.
4. Billing and Payment. The terms and conditions for billing and payment of charges
under this Agreement shall be those set forth in Article XVI of the ERPA and in
City’s Service Schedule Agreement for firm power service, which Service Schedule
Agreement is attached hereto as Exhibit B of this Agreement.
5. Term of Agreement.
A. This Agreement shall become effective on, and purchase of wind-generated
energy by City hereunder shall begin as of August 1, 2015.
B. This Agreement, and purchase of wind-generated energy by City hereunder, shall
continue for a term through December 31, 2017, which term may be extended
upon the execution of a written amendment between MEAN and the City. The
City and MEAN may mutually agree in writing to terminate this Agreement prior
to December 31, 2017, if such agreement regarding early termination is signed by
authorized representatives of both parties. In the event City converts its ERPA
participation from one firm power Service Schedule to another firm power
Service Schedule, this Agreement shall continue and become supplemental to the
subsequent Service Schedule, or in the case of Service Schedule J, to the
Supplemental Agreement for Firm Power Interchange Service. At such time,
MEAN and City shall execute an addendum to the subsequent Service Schedule
Agreement for firm power service to incorporate this supplemental Agreement. At
that time and as necessary, MEAN shall issue a revised Exhibit A and Exhibit B
of this Agreement.
C. If at any time, through City’s termination of its Service Schedule Agreement or
otherwise, City ceases to purchase firm power from MEAN, this Agreement shall
terminate, provided that because this Agreement is supplemental to City’s firm
power Service Schedule with MEAN, written notice of intent by City to terminate
purchase of firm power from MEAN, which notice has been given in satisfaction
of the notice requirements of City’s firm power Service Schedule, shall be
deemed to be adequate notice of intent to terminate this Agreement.
D. MEAN shall have the right but not the obligation, upon thirty (30) days advance
written notice to City, to terminate this Agreement or reduce the Contract Wind
Energy amounts, in the event that one or more of the following occurs:
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i. One or more of the facilities or generating units within the MEAN
Wind Resource Pool permanently ceases commercial operation or is
reduced in available energy output, as declared by the owner(s) of such
facility (including MEAN, in its sole discretion, for the Kimball Wind
Project and all other wind generation facilities for which MEAN is the
owner); or
ii. The Participation Power Agreement (as defined in Exhibit C), or other
agreement by which MEAN participates in a MEAN Wind Resource
Pool facility or by which MEAN purchases output from a MEAN
Wind Resource Pool facility, expires, is reduced in available energy
output, or is terminated in accordance with the terms thereof.
In the event MEAN chooses to terminate this Agreement pursuant to this Section
5.D., the obligation of City to purchase Contract Wind Energy pursuant to this
Agreement shall terminate on the date specified in the official notice of
termination from MEAN, and this Agreement shall terminate upon issuance of the
final invoice by MEAN and full payment by City.
6. Relationship to Other Agreements. This Agreement shall be separate from and in
addition to the First Supplemental Wind Agreement, the Second Supplemental Wind
Agreement, the LFG Agreement, the Service Schedule Agreement, the ERPA and the
SSM Third Revised Supplemental Agreement thereto. Termination or expiration of
this Agreement shall not impair, amend, or change such other agreements, City’s
then-current Service Schedule Agreement for firm power service, the SSM Third
Revised Supplemental Agreement thereto, or the LFG Agreement, and nothing in this
Agreement shall limit the rights of MEAN to enforce such other agreements.
7. Severability. If any provision of this Agreement is determined by any court or
regulatory body having jurisdiction over this Agreement to be invalid or
unenforceable, then it is the intention of the Parties that in lieu of each such invalid or
unenforceable provision, there be added as part of this Agreement a provision as
similar in terms as possible to such invalid or unenforceable provision. The
remaining portions of the Agreement shall not be affected thereby and shall remain in
full force and effect.
8. Limitation of Liability. In no event shall either Party be liable to the other Party for
indirect, special, incidental, or consequential damages, including but not limited to
the loss of revenues or profits, cost of substitute services, cost of purchased power,
loss of opportunity, loss of goodwill, loss of data, governmental sanctions or penalties
or claims of third parties, whether such liabilities arise as a result of breach of
contract, warranty, indemnity, tort, negligence, strict liability or otherwise; and
MEAN and City hereby release each other from any such liabilities. Further, in no
event shall MEAN be liable to City for any public claims or marketing efforts made
by a person or entity not a party to this Agreement (including without limitation the
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political subdivisions participating in MEAN) regarding the purchase or ownership of
the Environmental Attributes.
9. Integration Clause. This Agreement, the attached Exhibits, and the ERPA constitute
the complete agreement of the Parties relating to the matter specified in this
Agreement and supersede all prior representations or agreements, whether oral or
written, with respect to such matters. Except as provided in this Agreement, no
modification of this Agreement shall be binding upon either Party unless agreed to in
writing and signed by both Parties.
10. Waiver. Any waiver at any time by either Party to the Agreement of its rights with
respect to a default or any other matter arising under or in connection with the
Agreement shall not be deemed a waiver with respect to any subsequent default or
matter arising under or in connection with the Agreement.
11. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the substantive and procedural laws of the State of Nebraska.
12. Regulatory Approvals. This Agreement may be subject to the regulatory powers of
any state or federal agency having jurisdiction. Each Party shall use its best efforts
and shall cooperate with the other Party to obtain from all such state and federal
authorities as may have jurisdiction, all authorizations, approvals, and orders to the
extent required by law in order to enable them to validly enter into this Agreement
and to perform all their obligations hereunder.
13. Force Majeure. No Party shall be liable for any failure to perform its obligations in
connection with this Agreement, where such failure results from any act of God or
other causes beyond such Party’s reasonable control (including, without limitation,
war, terrorism, extreme weather conditions, substantial unplanned maintenance
activities, strikes, fires, embargos, actions of civil or military enforcement authorities)
and which, by the exercise of due diligence, such Party is unable to prevent or
overcome. Any Party that becomes unable to perform its obligations under this
Agreement because of any such event shall immediately give notice to the other Party
of the occurrence of such an event, and shall promptly notify the other Party of the
anticipated duration of such an event.
14. Changes in Regulations. Should changes in legislation or regulation, either state or
federal, make performance by either Party under the Agreement commercially
impracticable or impractical, the Parties agree that they will renegotiate the terms of
the Agreement as they have been affected by such change in regulation or legislation.
15. Notices. All notices required or permitted to be given with respect to this Agreement
shall be given by (a) mailing the same postage prepaid, or (b) given by facsimile or
by courier, to the addressee Party at such Party’s address as set forth below. Either
Party may change its address for the purpose of notice hereunder by giving the other
Party no less than five (5) days prior written notice of such new address in accordance
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with the preceding provisions.
To MEAN: Municipal Energy Agency of Nebraska
ATTN: Executive Director
8377 Glynoaks Drive
Lincoln, Nebraska 68516
(402) 474-4759 voice
(402) 474-0473 facsimile
To City: The City of Aspen
ATTN:
voice
facsimile
16. Assignment. Neither this Agreement nor the rights or obligations of the Parties
under this Agreement may be assigned or transferred by either Party without the prior
written approval of the other Party, which approval shall not be unreasonably
withheld; provided, any assignment or transfer, whether by merger or otherwise, to a
Party’s affiliate or successor in interest shall be permitted without prior consent if
such affiliate or successor in interest assumes this Agreement in total and the assignor
provides notice to the other Party at least thirty (30) days prior to the assignment or
transfer.
17. Arbitration. If a dispute between the Parties should arise under this Agreement,
either Party may call for submission of the dispute to arbitration, which call shall be
binding upon the other Party. The arbitration shall be governed by the Commercial
Industry Rules of the American Arbitration Association (or the rules and practice of a
similar organization if the American Arbitration Association should not then exist),
with the proviso that the arbitration panel shall, in all events, consist of three (3)
arbitrators, one chosen by each of the Parties and the third chosen by those two (2)
arbitrators. The Parties agree that once the three (3) arbitrators are selected that they
shall at all times thereafter function as neutral arbitrators.
[SIGNATURE PAGE FOLLOWING.]
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IN WITNESS WHEREOF, the Parties hereto have caused this Third Supplemental
Agreement for Wind-Generated Energy Purchase to be executed by their duly authorized
representatives as of the date and year first above written.
MUNICIPAL ENERGY AGENCY CITY OF ASPEN,
OF NEBRASKA COLORADO
By:________________________________ By:_______________________________
Name:_____________________________ Name:_____________________________
Title:______________________________ Title:______________________________
\k\MEAN\Wind\Aspen_Third Wind Supplemental from MEAN resource pool_CO2_071515 final
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THIRD SUPPLEMENTAL AGREEMENT
FOR WIND-GENERATED ENERGY PURCHASE
EXHIBIT A
Monthly Charges:
1. Wind Energy Output: $51.00/MWh, subject to change from time to time by action of
the MEAN Management Committee or the MEAN Board of
Directors. In accordance with Section 2.A. of the Agreement,
the portion of Contract Wind Energy that satisfies City’s
Support Energy requirements will be billed at the rate
described for Support Energy in Section 3.A. of the
Agreement.
2. Transmission Charges: Charged at the City’s transmission provider’s then-current
transmission rate.
3. Other Charges: Other charges shall be those directly attributable to the MEAN
Wind Resource Pool, including but not limited to such things
as energy imbalance charges, ancillary service charges, and
scheduling fees. Other charges will be assessed at the
transmission provider’s then-current rates.
4. Adjustments: The rates and charges shall be adjusted to reflect the impact of
any governmental imposition, such as changes in or additions
to sales tax, property tax, energy use tax or other governmental
or regulatory fees, which are adopted, implemented or enforced
after the execution of the Third Supplemental Agreement for
Wind-Generated Energy Purchase or which occur as a result of
a change after the execution of the Third Supplemental
Agreement for Wind-Generated Energy Purchase in the
interpretation or enforcement by the governmental or
regulatory body of an existing governmental imposition.
Point(s) of Delivery: One or more of the resources in the MEAN Wind Resource
Pool
Effective date of this Exhibit A: August 1, 2015
Supersedes Exhibit A dated effective: N/A
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THIRD SUPPLEMENTAL AGREEMENT
FOR WIND-GENERATED ENERGY PURCHASE
EXHIBIT B
Copy of the Service Schedule Agreement for firm power service between MEAN and City is
hereby attached.
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THIRD SUPPLEMENTAL AGREEMENT
FOR WIND-GENERATED ENERGY PURCHASE
EXHIBIT C
MEAN Wind Resource Pool Facilities List
Effective as of January 19, 2012
i. Wind generation facility near Kimball, Nebraska, which MEAN installed,
operates and maintains (“Kimball Wind Project”);
ii. Wind generation facility near Ainsworth, Nebraska (“Ainsworth Wind
Facility”), in which MEAN participates pursuant to the Participation Power
Agreement executed as of October 26, 2004, between MEAN and the Nebraska
Public Power District;
iii. Wind generation facility near Wessington Springs, South Dakota
(“Wessington Springs Wind Project”), from which MEAN purchases output pursuant
to an agreement with Heartland Consumers Power District;
iv. Wind generation facility near Bloomfield, Nebraska (“Elkhorn Ridge Wind
Plant”), from which MEAN purchases output pursuant to an agreement with
Nebraska Public Power District;
v. Wind generation facility near Petersburg, Nebraska (“Laredo Ridge Wind
Plant”), from which MEAN purchases or will purchase output pursuant to an
agreement with Nebraska Public Power District;
vi. Power Sales Agreement with the Nebraska Public Power District for 10%
(approximately 4 MW) of the energy production that the Nebraska Public Power
District purchases from the Crofton Bluffs Wind, LLC, Plant; and
vii. Any other wind generation resource(s) which MEAN designates as part of the
MEAN Wind Resource Pool and which MEAN acquires through ownership or in
which MEAN participates or purchases output for the benefit of MEAN participants
or other regional suppliers.
The composition of the MEAN Wind Resource Pool is subject to change from time to
time upon action by the MEAN Board of Directors or the MEAN Management
Committee in accordance with the Third Supplemental Agreement for Wind-Generated
Energy Purchase.
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1
Supplemental Agreement for Purchase of Landfill Gas Energy Environmental Attributes
between
Municipal Energy Agency of Nebraska
and
City of Aspen, Colorado
This Supplemental Agreement for Purchase of Landfill Gas Energy Environmental Attributes
(“Agreement”) is made between the Municipal Energy Agency of Nebraska, an agency and political
subdivision of the State of Nebraska (“MEAN”), and the City of Aspen, Colorado (“Municipality”) on
this ______ day of ______________________, 20___ and is subject to the terms and conditions of the
Electrical Resources Pooling Agreement (“ERPA”) to which MEAN and Municipality are parties.
MEAN and Municipality are sometimes referred to collectively as the “Parties” and individually as a
“Party”.
WHEREAS, Municipality and MEAN have entered into the ERPA and a Service Schedule Agreement for
firm power service, pursuant to which MEAN is to acquire and deliver to Municipality all of
Municipality’s electrical energy requirements except that provided by the Western Area Power
Administration or that already under contract with other suppliers not a party to this Agreement and
agreed to by MEAN; and
WHEREAS, Municipality has requested MEAN to provide to Municipality, in addition to electrical
energy provided under the terms of separate agreements described above, environmental attributes from
renewable resources as described herein; and
WHEREAS, MEAN has acquired, and may continue to acquire, rights to electrical energy output from
renewable resources and has acquired, and may continue to acquire under certain circumstances as
provided in this Agreement, the rights to environmental attributes which may be used to serve MEAN’s
obligations hereunder.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and other
good and valuable consideration, the sufficiency of which is hereby acknowledged by the Parties, the
Parties agree as follows:
1. Definitions. For purposes of this Agreement,
a. “Environmental Attribute” means with respect to a specified quantity of electricity, the
right of a purchaser of such Environmental Attributes to claim, under applicable energy
generation disclosure and tracking laws and regulations, all of the non-energy attributes
and value associated with the generation of such renewable power, including: any green
tags, tradable renewable certificates or similar renewable energy certificates, credits,
values or premiums associated with such renewable energy generation; any output-based
incentive, allocation, credit, value, set-aside allowance or non-energy attribute relating to
or arising out of the production of renewable generation, and emission and greenhouse
gas reductions; whether any of the foregoing arises pursuant to existing or future energy
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2
generation disclosure and tracking laws and regulations, or existing or future
certification, certification program, trading market or exchange; provided, however, that
for purposes of this Agreement, Environmental Attributes shall specifically exclude any
and all state and federal production tax credits, investment tax credits and any other tax
credits which are or will be generated by the facilities from which the Environmental
Attributes provided hereunder are generated. Environmental Attributes include, without
limitation, those associated with energy produced by the MEAN Landfill Gas Energy
Environmental Attributes Pool and those purchased by MEAN on the secondary market
by MEAN from other utilities. The Parties acknowledge that the intent is that
Environmental Attributes will be certified by the applicable renewable energy tracking
system, such as the Midwest Renewable Energy Tracking System, Western Renewable
Energy Generation Information System, or the North American Renewables Registry.
MEAN represents that the amount of Environmental Attributes which MEAN enters into
bilateral agreements to sell from the MEAN Landfill Gas Energy Environmental
Attributes Pool generation in each calendar year during the term of this Agreement shall
not exceed the sum of (i) the Environmental Attributes associated with MEAN’s share of
actual energy production by the MEAN Landfill Gas Energy Environmental Attributes
Pool in such calendar year, plus (ii) Environmental Attributes procured by MEAN in such
calendar year in accordance with this Agreement.
b. “Landfill Gas” shall be defined as any and all gases resulting from the anaerobic
decomposition of organic waste within the landfill, consisting principally of methane,
carbon dioxide and traces of other constituent gases.
c. “MEAN Landfill Gas Energy Environmental Attributes Pool” shall have the meaning set
forth in Section 2.b.
2. Obligations of the Parties.
a. MEAN shall provide to Municipality during the term of this Agreement, the
Environmental Attributes associated with the amount of energy per month as shown in
Exhibit A, attached hereto and made part of this Agreement. The Parties acknowledge
and agree that the purchase of Environmental Attributes hereunder shall not include any
electrical energy. Exhibit A may be modified from time to time upon mutual agreement
of the Parties. In the event that in any year the energy generated by the sources listed on
Exhibit B attached hereto and made part of this Agreement (excluding energy associated
with Environmental Attributes not purchased by MEAN participants under this
Agreement and substantially similar agreements) is not sufficient to allow MEAN to
fulfill its contractual obligations for such year regarding sales of Environmental
Attributes from the sources in the MEAN Landfill Gas Energy Environmental Attributes
Pool, for reasons including but not limited to events of force majeure, MEAN shall be
permitted but not required to acquire Environmental Attributes to fulfill its obligations
under this Agreement for such year as described above. MEAN agrees not to enter into
this Agreement with the sole intention of fulfilling this contractual obligation by
purchasing Environmental Attributes. For any year in which MEAN purchases
Environmental Attributes to fulfill its obligations hereunder, MEAN shall provide
Municipality with written notification of such purchase. Such notification shall state the
amount of energy generated by the MEAN Landfill Gas Energy Environmental Attributes
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3
Pool for the applicable period of time, the amount of Environmental Attributes purchased
to fulfill MEAN’s contractual obligations to all participants in the MEAN Landfill Gas
Energy Environmental Attributes Pool for the applicable time period, and the justification
for such purchase.
b. The generation source(s) of Environmental Attributes may include but not be limited to
the sources listed on Exhibit B (collectively, the “MEAN Landfill Gas Energy
Environmental Attributes Pool”). Upon approval of modification to the MEAN Landfill
Gas Energy Environmental Attributes Pool by the MEAN Board of Directors, a revised
Exhibit B shall be issued by MEAN and shall be deemed part of this Agreement. MEAN
has the right to withhold from the MEAN Landfill Gas Energy Environmental Attributes
Pool any Environmental Attributes not initially subscribed by Municipality or other
MEAN participants under this Agreement or substantially similar agreements prior to the
budget approval by the MEAN Board of Directors for the fiscal year in which such new
resource was to achieve commercial operation. Further, all or a portion of the
Environmental Attributes produced by a resource within the MEAN Landfill Gas Energy
Environmental Attributes Pool but not subscribed by the Municipality or any other
MEAN participant under written agreement for the purchase of environmental attributes
may be deemed part of MEAN’s overall power supply portfolio. Annual production
amounts for the MEAN Landfill Gas Energy Environmental Attributes Pool will be
reported to Municipality by issuance of a revised Exhibit C, attached hereto and made
part of this Agreement.
c. MEAN will, upon written request from Municipality, provide a form of resource
authentication that MEAN has acquired, either via MEAN’s landfill gas energy resource
purchase or from other sources, Environmental Attributes for resale to Municipality in an
amount equal to the amount per month as shown in Exhibit A.
d. MEAN agrees that it will not sell the same Environmental Attributes to any other party or
use the Environmental Attributes in any other manner.
e. Municipality agrees to pay MEAN for the Environmental Attributes as set forth in this
Agreement, and such obligation for payment shall survive termination of this Agreement.
3. Charges
a. Municipality will pay to MEAN for the Environmental Attributes sold under this
Agreement an amount calculated in accordance with Exhibit D attached hereto and made
part of this Agreement. The charges and costs are subject to change from time to time.
Written notice of changes to the charges for Environmental Attributes shall be provided
by issuance of a revised Exhibit D to Municipality within thirty (30) days of approval by
the MEAN Board of Directors.
b. Each month during the term of this Agreement, MEAN will include on Municipality’s
monthly power and energy bills, and Municipality shall pay, the amount due for the
Environmental Attributes sold under this Agreement during the month for which such bill
is applicable.
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4
c. Payments for the Environmental Attributes are due from Municipality to MEAN in
accordance with Article XVI of the ERPA. Bills are considered paid when payment is
received in full by MEAN.
4. Term of Agreement.
a. This Agreement shall become effective on, and purchase of Environmental Attributes by
Municipality hereunder shall begin as of August 1, 2015.
b. This Agreement, and purchase of Environmental Attributes by Municipality hereunder,
shall continue through December 31, 2017, unless sooner terminated in accordance with
the terms below in this Section 4. The Municipality and MEAN may mutually agree in
writing to terminate this Agreement prior to December 31, 2017, if such agreement
regarding early termination is signed by authorized representatives of both parties. In the
event Municipality converts its ERPA participation from one firm power Service
Schedule to another firm power Service Schedule, this Agreement shall continue and
become supplemental to the subsequent Service Schedule, or in the case of Service
Schedule J, to the Supplemental Agreement for Firm Power Interchange Service. At such
time, MEAN and Municipality shall execute an addendum to the subsequent Service
Schedule Agreement for firm power service to incorporate this supplemental Agreement.
At that time and as necessary, MEAN shall issue a revised Exhibit A, Exhibit B and
Exhibit D of this Agreement.
c. If at any time, through Municipality’s termination of its Service Schedule Agreement or
otherwise, Municipality ceases to purchase firm power from MEAN, this Agreement
shall terminate, provided that because this Agreement is supplemental to Municipality’s
firm power Service Schedule with MEAN, written notice of intent by Municipality to
terminate purchase of firm power from MEAN, which notice has been given in
satisfaction of the notice requirements of Municipality’s firm power Service Schedule,
shall be deemed to be adequate notice of intent to terminate this Agreement.
d. MEAN shall have the right but not the obligation, upon thirty (30) days advance written
notice to Municipality, to terminate this Agreement or reduce the Environmental
Attributes amounts and issue a revised Exhibit A, in the event that one or more of the
following occurs:
i. One or more of the facilities or generating units within the MEAN Landfill Gas
Energy Environmental Attributes Pool permanently ceases commercial operation
or is reduced in available energy output, as declared by the owner(s) of such
facility (including MEAN, in its sole discretion, for any facilities for which
MEAN is the owner); or
ii. The WM Agreement (as defined in Exhibit B), or other agreement by which
MEAN participates in a MEAN Landfill Gas Energy Environmental Attributes
Pool facility or by which MEAN purchases Environmental Attributes or
purchases output from a MEAN Landfill Gas Energy Environmental Attributes
Pool facility to fulfill its obligations hereunder, expires, is reduced in available
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5
energy or Environmental Attributes output, or is terminated in accordance with
the terms thereof.
In the event MEAN chooses to terminate this Agreement pursuant to this Section 4, the
obligation of Municipality to purchase Environmental Attributes pursuant to this
Agreement shall terminate on the date specified in the official notice of termination from
MEAN, and this Agreement shall terminate upon issuance of the final invoice by MEAN
and full payment by Municipality.
5. Relationship to Other Agreements. Termination or expiration of this Agreement shall not
impair, amend, or change any other agreement, including without limitation the ERPA or
Municipality’s then-current Service Schedule Agreement for firm power service, and nothing in
this Agreement shall limit the rights of MEAN to enforce such agreements.
6. Severability. If any provision of this Agreement is determined by any court or regulatory body
having jurisdiction over this Agreement to be invalid or unenforceable, then it is the intention of
the Parties that in lieu of each such invalid or unenforceable provision, there be added as part of
this Agreement a provision as similar in terms as possible to such invalid or unenforceable
provision. The remaining portions of the Agreement shall not be affected thereby and shall
remain in full force and effect.
7. Limitation of Liability. In no event shall either Party be liable to the other Party for indirect,
special, incidental, or consequential damages, including but not limited to the loss of revenues or
profits, cost of substitute services, loss of opportunity, loss of goodwill, loss of data,
governmental sanctions or penalties or claims of third parties, whether such liabilities arise as a
result of breach of contract, warranty, indemnity, tort, negligence, strict liability or otherwise; and
MEAN and Municipality hereby release each other from any such liabilities. Further, in no event
shall MEAN be liable to Municipality for any public claims or marketing efforts made by a
person or entity not a party to this Agreement (including without limitation the political
subdivisions participating in MEAN) regarding the purchase or ownership of the Environmental
Attributes.
8. Indemnification. Municipality agrees to and shall indemnify, defend and hold harmless MEAN,
its officers, directors, employees, and agents, from and against all claims, including claims for
personal injury, death, or damages to property, arising out of or related to MEAN’s performance
under this Agreement.
9. Integration Clause. This Agreement, the attached Exhibits, and the ERPA constitute the
complete agreement of the Parties relating to the matter specified in this Agreement and
supersede all prior representations or agreements, whether oral or written, with respect to such
matters. Except as provided in this Agreement, no modification of this Agreement shall be
binding upon either Party unless agreed to in writing and signed by both Parties.
10. Waiver. Any waiver at any time by either Party to this Agreement of its rights with respect to a
default or any other matter arising under or in connection with this Agreement shall not be
deemed a waiver with respect to any subsequent default or matter arising under or in connection
with this Agreement.
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11. Governing Law. This Agreement shall be governed by and interpreted in accordance with the
substantive and procedural laws of the State of Nebraska, excluding any conflict-of-law rules and
principles of that jurisdiction which would result in reference to the laws or law rules of another
jurisdiction.
12. Force Majeure. No Party shall be liable for any failure to perform its obligations in connection
with this Agreement, where such failure results from any act of God or other causes beyond such
Party’s reasonable control (including, without limitation, war, terrorism, extreme weather
conditions, substantial unplanned maintenance activities, strikes, fires, embargos, actions of civil
or military enforcement authorities) and which, by the exercise of due diligence, such Party is
unable to prevent or overcome. Any Party that becomes unable to perform its obligations under
this Agreement because of any such event shall immediately give notice to the other Party of the
occurrence of such an event, and shall promptly notify the other Party of the anticipated duration
of such an event. Any event which constitutes an event of force majeure under the terms of the
WM Agreement or other agreement by which MEAN participates in a MEAN Landfill Gas
Energy Environmental Attributes Pool facility or by which MEAN purchases Environmental
Attributes or purchases output from a MEAN Landfill Gas Energy Environmental Attributes Pool
facility to fulfill its obligations hereunder, shall constitute an event of Force Majeure hereunder.
13. Changes in Regulations. Should changes in legislation or regulation, either state or federal,
make performance by either Party under the Agreement commercially impracticable or
impossible, the Parties agree that they will renegotiate the terms of the Agreement as they have
been affected by such change in regulation or legislation.
14. Notices. All notices required or permitted to be given with respect to this Agreement shall be
given by mailing the same postage prepaid or given by facsimile or by courier to MEAN at the
address as set forth below or to the Municipality at the address to which official notices pursuant
to the ERPA are sent. Either Party may change its address for the purpose of notice hereunder by
giving the other Party no less than five (5) days prior written notice of such new address in
accordance with the preceding provisions.
To MEAN: Municipal Energy Agency of Nebraska
ATTN: Executive Director
8377 Glynoaks Drive
Lincoln, Nebraska 68516
Telephone: (402) 474-4759
Facsimile: (402) 474-0473
15. Assignment. Neither this Agreement nor the rights or obligations of the Parties under this
Agreement may be assigned or transferred by either Party without the prior written approval of
the other Party, which approval shall not be unreasonably withheld; provided, any assignment or
transfer, whether by merger or otherwise, to a Party’s affiliate or successor in interest shall be
permitted without prior consent if such Party assumes this Agreement.
16. Arbitration. If a dispute between the Parties should arise under this Agreement, either Party
may call for submission of the dispute to arbitration, which call shall be binding upon the other
Party. The arbitration shall be governed by the Commercial Industry Rules of the American
Arbitration Association (or the rules and practice of a similar organization if the American
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Arbitration Association should not then exist), with the proviso that the arbitration panel shall, in
all events, consist of three (3) arbitrators, one chosen by each of the Parties and the third chosen
by those two (2) arbitrators. The Parties agree that once the three (3) arbitrators are selected that
they shall at all times thereafter function as neutral arbitrators.
IN WITNESS WHEREOF, the Parties hereto have caused this Supplemental Agreement for Purchase of
Landfill Gas Energy Environmental Attributes to be executed in their respective names as of the date and
year below.
MUNICIPAL ENERGY AGENCY CITY OF ASPEN, COLORADO
OF NEBRASKA
By: ________________________________ By: ________________________________
Name: ______________________________ Name: ______________________________
Title: _______________________________ Title: _______________________________
Date: _______________________________ Date: _______________________________
K:\Legal\K\MEAN\Landfill Gas Environmental Attributes Agmt_Aspen_final_071515.doc
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SUPPLEMENTAL AGREEMENT FOR PURCHASE OF LANDFILL GAS ENERGY
ENVIRONMENTAL ATTRIBUTES
EXHIBIT A
Environmental Attributes Amounts
Month Environmental
Attributes
January 84 MWh
February 84 MWh
March 84 MWh
April 84 MWh
May 84 MWh
June 84 MWh
July 84 MWh
August 84 MWh
September 84 MWh
October 84 MWh
November 84 MWh
December 84 MWh
Annual Total 1,008 MWh
Each Environmental Attribute shall be that associated with 1 MWh of energy.
Supersedes Exhibit A dated effective: N/A
WHEREAS, the Parties have duly executed this Exhibit A to the Supplemental Agreement for Purchase
of Landfill Gas Energy Environmental Attributes as of the date and year shown below.
MUNICIPAL ENERGY AGENCY CITY OF ASPEN, COLORADO
OF NEBRASKA
By: ________________________________ By: ________________________________
Name: ______________________________ Name: ______________________________
Title: _______________________________ Title: _______________________________
Date: _______________________________ Date: _______________________________
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SUPPLEMENTAL AGREEMENT FOR PURCHASE OF LANDFILL GAS ENERGY
ENVIRONMENTAL ATTRIBUTES
EXHIBIT B
MEAN Landfill Gas Energy Environmental Attributes Pool Facilities List
1. Agreement for the Sale and Purchase of Renewable Energy with WM Renewable Energy,
LLC (“WM Agreement”) under which MEAN agrees to purchase output from an electric
generating facility fueled by landfill gas, extracted from the Metro Park East Landfill which is
located in Mitchellville, Iowa upon its completion and commercial operation (“Des Moines
LFG Renewable Energy Facility”); and
2. Any other generation resource(s) which MEAN designates as part of the MEAN Landfill
Gas Energy Environmental Attributes Pool.
The composition of the MEAN Landfill Gas Energy Environmental Attributes Pool is subject to change
from time to time upon action by the MEAN Board of Directors in accordance with the Supplemental
Agreement for Purchase of Landfill Gas Energy Environmental Attributes.
Effective date of this Exhibit B: August 18, 2011
Supersedes Exhibit B dated effective: N/A
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SUPPLEMENTAL AGREEMENT FOR PURCHASE OF LANDFILL GAS ENERGY
ENVIRONMENTAL ATTRIBUTES
EXHIBIT C
Annual Production Amounts
Time Period Sum of Annual Production
April 2014 through March 2015 39,222.622MWh
April 2013 through March 20141 3,379.401 MWh
Date of Issuance of this Exhibit C: May 7, 2015
Supersedes Exhibit C issued: N/A
1 The Commercial Operation Date of the Des Moines LFG Renewable Energy Facility was March 2, 2014.
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SUPPLEMENTAL AGREEMENT FOR PURCHASE OF LANDFILL GAS ENERGY
ENVIRONMENTAL ATTRIBUTES
REVISED EXHIBIT D
Charges
Monthly Charges:
1. Environmental Attributes: $30.00/Environmental Attribute (each Environmental Attribute shall
be that associated with 1 MWh of energy), subject to change from
time to time by action of the MEAN Board of Directors.
2. Other Charges Other charges shall be those directly attributable to the MEAN
Landfill Gas Energy Environmental Attributes Pool, including but
not limited to such things as cost of certificate to authenticate
Environmental Attributes, any required cost of registration or
certification of Environmental Attributes as required for either Party
to maintain compliance with any applicable rule, regulation, code,
law or requirement of any governmental authority.
3. Adjustments: The rates and charges shall be adjusted to reflect the impact of any
governmental imposition, such as changes in or additions to sales
tax, property tax, energy use tax or other governmental or regulatory
fees, which are adopted, implemented or enforced after the execution
of the Supplemental Agreement for Purchase of Landfill Gas Energy
Environmental Attributes or which occur as a result of a change after
the execution of the Supplemental Agreement for Purchase of
Landfill Gas Energy Environmental Attributes in the interpretation
or enforcement by the governmental or regulatory body of an
existing governmental imposition.
Effective date of this Exhibit D: April 1, 2015
Supersedes Exhibit D dated effective: N/A
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1
Third Revised
Supplemental Agreement
between
Municipal Energy Agency of Nebraska
and
The City of Aspen, Colorado
This Third Revised Supplemental Agreement, dated the __________ day of
______________________, 2015, between the City of Aspen, Colorado, a home rule
city of the State of Colorado (Aspen), and the Municipal Energy Agency of Nebraska, an
agency and political subdivision of the State of Nebraska (MEAN), supersedes and
replaces effective August 1, 2015, the Second Revised Supplemental Agreement
between Aspen and MEAN executed as of December 12, 2012.
WHEREAS, due to unique circumstances affecting the sale of electric capacity and
energy by MEAN to Aspen, the parties des ire to agree on certain contractual terms in
addition to those that would normally attend the sale of the electric capacity and energy
by MEAN to a municipal customer; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
1. The parties have executed standardized contracts governing the sale of electric
capacity and energy by MEAN to Aspen. These Agreements are the Electrical
Resources Pooling Agreement (Pooling Agreement), dated June 25, 1984, the Service
Schedule M Total Power Requirements Power Purchase Agreement (Schedule M
Agreement), dated June 25, 1984, the Supplemental Agreement for Wind-Generated
Energy Purchase, dated October 31, 2002, the Second Supplemental Agreement for
Wind-Generated Energy Purchase, dated August 4, 2005 (collectively referred to as the
Preexisting Power Agreements), which are incorporated herein by this reference. In the
event of any conflict or contradiction between the provisions of one or more of the
Preexisting Power Agreements, and the provisions of this Agreement, this Agreement
shall govern and control.
2. The City of Aspen, Colorado owns and operates the Ruedi hydroelectric plant under
a permit issued by the Federal Energy Regulatory Commission (FERC) with a rated
capacity of five megawatts and a hydroelectric project known as Maroon Creek with a
rated capacity of .5 megawatts; and Aspen has acquired an interest in a portion of the
output of the Ridgway Hydropower Project (Ridgway); which projects are used to supply
capacity and energy to Aspen for resale to its customers, or in the case of Ridgway , the
output is managed and used by MEAN as described herein . MEAN is fully aware that
Aspen is planning and may construct itself, or jointly with third parties one or more of the
additional proposed hydroelectric projects listed in Exhibit B to this Agreement that may
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2
also be used to supply capacity and energy to Aspen. Aspen has received a Western
Area Power Administration (WAPA) demand allocation under the Post 2004 Resource
Pool of 988 kW in the summer season and 1,560 kW in the winter season. The parties
acknowledge that Aspen’s purchases under the Schedule M Agreement have been
modified by the Supplemental Agreement for Wind-Generated Energy Purchase dated
October 31, 2002, the Second Supplemental Agreement for Wind-Generated Energy
Purchase dated August 4, 2005, and the Third Supplemental Agreement for Wind-
Generated Energy Purchase dated _________________________, 2015. The parties
agree that Aspen’s purchases under the Schedule M Agreement shall be further
reduced by certain Aspen resources as described in this Agreement; notwithstanding
the foregoing, the parties expressly agree that the hydropower output credited to Aspen
under this Agreement for each unit shall be limited and is deemed not to exceed
generation associated with the capacity amount listed for each respective unit on Exhibit
B to this Agreement.
3. Calculation of Fixed Cost Recovery Charge and Energy Charge
A. Fixed Cost Recovery Charge for Aspen will be billed as set forth in the
then-current Exhibit B, Schedule of Rates and Charges, to the Schedule M Agreement,
which Schedule of Rates and Charges is subject to change from time to time upon
action of the MEAN Board of Directors.
B. Energy Charge. Monthly Billing Energy is determined as follows and will
be billed at the Energy Charge rate set forth in the then -current Exhibit B, Schedule of
Rates and Charges, to the Schedule M Agreement, except as provided in subsection 1
below: On an hourly basis, MEAN will reconcile the load and generation for Aspen. For
each hour, the amount of supplemental energy supplied by MEAN under the Schedule
M Agreement shall be actual metered energy minus the sum of energy supplied from
WAPA and the energy generated from the hydropower projects listed on Exhibit B.
Monthly Billing Energy equals the net of the amounts determined on an hourly basis for
the current month, less applicable transmission losses as specified in the PSCo
Contract, the Holy Cross Contract and the Tri-State Generation and Transmission
Association, Inc.’s network transmission service agreement for MEAN’s delivery of
Ridgway, for the current month. In the event Aspen’s resources from the hydropower
generation from the facilities listed on Exhibit B , plus the Supplemental Agreement for
Wind-Generated Energy Purchase dated October 31, 2002, the Second Supplemental
Agreement for Wind-Generated Energy Purchase dated August 4, 2005, and Schedule
M Agreement purchases equivalent to the energy which was generated to create the
environmental attributes that City purchases under the Supplemental Agreement for
Purchase of Landfill Gas Energy Environmental Attributes dated
______________________, 2015 (LFG Agreement) exceed the City’s total electric
power and energy requirements MEAN will credit the City for the excess amounts at the
MEAN Energy Charge rate set forth in the then-current Schedule of Rates and Charges
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3
to the Schedule M Agreement. Notwithstanding anything to the contrary in this
Agreement, no provision of this Agreement shall reduce, modify or affect the amounts to
be charged to Aspen for purchases under the following agreements between MEAN and
Aspen: the Supplemental Agreement for Wind -Generated Energy Purchase, dated
October 31, 2002, the Second Supplemental Agreement for Wind-Generated Energy
Purchase, dated August 4, 2005, the LFG Agreement, and as provided in the Third
Supplemental Agreement for Wind-Generated Energy Purchase dated
_______________________, 2015, Schedule M Agreement purchases equivalent to
the energy which was generated to create the environmental attributes that City
purchases under the LFG Agreement; those amounts will be charged notwithstanding
any excess generation from Aspen’s hydropower projects on Exhibit B or WAPA. In
addition, in the event that for any month the amount of WAPA firm energy purchases
exceeds the amount of City’s Total Metered Energy, as that term is defined in the then-
current Schedule of Rates and Charges to the Schedule M Agreement, MEAN will credit
the City for the excess amounts at the then-current WAPA energy rate.
1. The Parties acknowledge that energy purchases under the Third
Supplemental Agreement for Wind-Generated Energy Purchase dated
________________________, 2015, will be calculated and billed as provided
therein in lieu of the calculation in Section B above.
4. Aspen shall be treated, for purposes of the Pooling Agreement and Schedule M
Agreement, as if those hydroelectric generating facilities listed in Exhibit B which
actually supply capacity and energy to Aspen, were WAPA Allocations (s ubject to
Section 3 above regarding wind-generated energy purchases), and the following
provisions of the Pooling Agreement and Schedule M Agreement shall not be applicable
to Aspen with regard to the facilities listed on Exhibit B:
Pooling Agreement
Article VIII, Article IX; Section 13.02, Section 13.05, Section 13.06,
Section 15.02, Section 15.04
Schedule M Agreement
Article XII and Article XIV
5. Division of responsibility for transmission losses:
A. MEAN shall bear all transmission losses associated with delivery of MEAN
power and energy to Aspen at the Delivery Point. The Delivery Point is set forth in
Exhibit A to this Agreement.
B. Aspen shall bear all transmission losses associated with the delivery of
WAPA power and energy as well as power and energy from the facilities listed on
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Exhibit B.
6. Division of responsibility for transmission charges:
A. MEAN has entered into the PSCo Contract for delivery by PSCo of power and
energy from MEAN resources, Ruedi and WAPA. Aspen has entered into the Holy
Cross Contract for use of Holy Cross transmission and distribution facilities for delivery
of power and energy from Ruedi to the tran smission system of PSCo and from the
transmission system of PSCo to Aspen and for the delivery of all power and energy
from the Delivery Point to Aspen. For the purpose of cost sharing arrangement
between Aspen and MEAN, only the portion of Holy Cross fac ility charges associated
with the Aspen Substation shall be shared between Aspen and MEAN. All remaining
Holy Cross charges shall be passed through by MEAN and paid by Aspen. All
transmission charges for MEAN’s delivery of Ridgway shall be the responsibility of
Aspen as provided in subsection B below.
B. MEAN is responsible for the portion of the transmission cost for delivery of
power and energy from MEAN resources, and the City of Aspen is responsible for the
portion of the transmission cost for delivery of power and energy from Ruedi, Ridgway,
WAPA and any other constructed hydropower projects currently listed as proposed on
Exhibit B. All transmission costs, including losses, associated with the Ridgway
Purchase Power Agreement shall be the sole responsibility of Aspen. Accordingly,
Aspen shall be responsible for the lesser of the following costs: (i) costs of delivering
power from the Ridgway project to Aspen, or (ii) costs for delivering power from the
Ridgway project to MEAN’s network load on Tri-State’s system or other transmission
provider’s system (which load shall be that determined by MEAN in its sole discretion),
including without limitation point-to-point transmission charges incurred to deliver to
such network. The allocation of PSCo and Holy Cross transmission costs between the
City of Aspen and MEAN will be based 50% on the Energy Supply Ratio and 50% on
Peak Demand Ratio defined as follows:
1. Energy Supply Ratio (ER)
The ER for Aspen (ERA) is equal to the sum of the energy supplied by
WAPA and the energy generated at Ruedi, less transmission losses as
specified in the transmission agreements of PSCo and Holy Cross,
divided by the total energy delivered to Aspen at the Point(s) of
Measurement, for the previous calendar year. The ER for MEAN (ERM)
is equal to one (1) minus the ERA.
2. Peak Demand Ratio (DR)
The DR for Aspen (DRA) is equal to the sum of demand allocation from
WAPA and the peak hourly generation from Ruedi coincident with the
annual system peak demand for Aspen, less transmission losses as
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5
specified in the transmission agreements of PSCo and Holy Cross,
divided by the annual system peak demand for Aspen as metered at the
Point(s) of Measurement, for the previous calendar year. The DR for
MEAN (DRM) is equal to one (1) minus the DRA.
C. The monthly cost share will be calculated as follows:
1. The monthly cost share for Aspen shall be:
(ERA x 50% + DRA x 50%) x Monthly Transmission cost from PSCo and
Holy Cross
2. The monthly cost share for MEAN shall be:
(ERM x 50% + DRM x 50%) x Monthly Transmission cost from PSCo and
Holy Cross
D. All arrangements for and charges for transmission, distribution, losses and
other charges on and for all power and energy after it is delivered by MEAN to the
Delivery Point shall be the sole responsibility of Aspen. Except as provided below for
Ridgway, the Delivery Point shall be as set forth in Exhibit A to this Agreement. This
Delivery Point is also the delivery point for Service Schedule M. The Delivery Point for
Ridgway shall be deemed to be the Tri-State meter, or such point as agreed hereafter
by Aspen and Tri-State.
7. Any decrease or increase in transmission losses or transmission charges shall
accrue to or be paid by the party to whom the loss or charge subject to the increase or
decrease would be allocated in accordance with Sections 5 and 6 hereof. Provided,
however, that if as a result of an increase in transmission losses or transmission
charges, a party determines in its sole discretion that continued performance under the
Pooling Agreement or Schedule M Agreement would result, in the case of Aspen, in
Aspen paying a higher rate for power and energy than it would pay to another supplier
other than MEAN, or in the case of MEAN, would r esult in a MEAN Schedule M rate
higher than it would be without Aspen on the system, then the party affected may give
the other party notice of its intent to terminate the Pooling Agreement and Schedule M
Agreement. Following such notification, the partie s shall negotiate in good faith to
reallocate transmission losses and transmission charges between them. If no
agreement is reached between the parties, then the Pooling Agreement and Schedule
M Agreement shall terminate on the third anniversary of the gi ving of the notice
provided for herein. Notwithstanding any other provision of this Section, the Pooling
Agreement and Schedule M Agreement shall not terminate following notice given by
Aspen under this Section if MEAN agrees to bear whatever increased transmission loss
or transmission charge resulted in Aspen's notice of intent to terminate.
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6
In the event that the Pooling Agreement and Schedule M Agreement are terminated in
accordance with this Section 7 and such termination is initiated by Aspen, then an y
Fixed Cost Recovery Charges that would have applied had the contract not been
terminated will still apply. In the event that the Pooling Agreement and Schedule M
Agreement are terminated in accordance with this Section 7 and such termination is
initiated by MEAN, then any Fixed Cost Recovery Charges that would have applied had
the Agreements not been terminated will not apply.
8. In the event Aspen shall become a Contract Purchaser, its obligation to purchase
and MEAN's obligation to supply electric power and energy shall thereafter be at a
Contract Demand equal to the maximum clock hour integrated system demand of
Aspen, less its WAPA allocation, occurring during each Billing Period for the 12
preceding monthly Billing Periods, adjusted to take into account any Aspen
hydroelectric projects listed on Exhibit B operating during the 12 preceding monthly
Billing Periods. The adjustment for hydroelectric projects shall be based upon the
operating experience of each hydroelectric generation unit during the maximum clock
hour of Aspen integrated system demand during the 12 preceding monthly Billing
Periods. Contract Demand, as used herein, shall constitute the Firm Power
Requirement for the City for purposes of 3.01 of the Schedule M Agreement.
9. Management of Ridgway output. Aspen hereby designates MEAN as the party
exclusively responsible for scheduling and managing the Ridgway output for Aspen.
MEAN shall manage Aspen’s Ridgway output and accept delivery of the output from Tri -
County pursuant to the terms and conditions of the agreement between Aspen and Tri -
County for Ridgway output. After receipt of the output by MEAN from Tri -County, MEAN
shall manage the Ridgway output in the manner determined by MEAN in its sole
discretion (as further described in Section 6), and MEAN shall apply any applicable
credit for such output to the extent it qualifies as excess generation as described in
Section 3.B. The City agrees not to take any action or support any effort by Tri -County
or any other third party that would restrict, affect or eliminate MEAN’s right to use the
Ridgway output in the manner described in this Agreement. The parties acknowledge
and agree that the following language in Section 3.2 of the City’s Power Purchase
Agreement with Tri-Country was intended to allow MEAN to schedule the Ridgway
output to MEAN’s loads on the WAPA-CRSP system but after execution of that
agreement it was determined that disposition of the Ridgway output to MEAN’s load on
the Tri-State system would be more cost-effective: “The Unit will be submitted to
Western Area Power Administration (WAPA) Operations under WAPA’s FERC -filed
Network Integration Transmission System (NITS) tariff as a NITS Network Resource on
the WAPA CRSP system.” The City agrees to timely pursue an amendment of the City’s
Power Purchase Agreement with Tri-Country to delete Section 3.2 or revise that
provision to clarify that the contract for the Ridgway output has been designated by
MEAN as a network resource on the Tri-State system. The City shall bear full
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7
responsibility for any consequences to itself or MEAN of the City’s failure to obtain such
amendment.
10. Effective Date. This Third Revised Supplemental Agreement shall be effective as of
August 1, 2015.
11. The parties mutually agree that the provisions of Section 4.02 of the Schedule M
Agreement shall not apply in the case of events resulting from or caused by the
negligent or intentional actions of MEAN.
12. It is mutually agreed and understood that the obligations imposed by the provisions
of the Pooling Agreement, Schedule M Agreement and this Third Revised Supplemental
Agreement are only such as are consistent with applicable state and federal law. The
parties further agree that if any provision of the Pooling Agreement, Schedule M
Agreement or this Third Revised Supplemental Agreement, becomes in its performance
inconsistent with state or federal law or is declared invalid, they will in good faith
negotiate to modify the agreement accordingly.
13. In no event shall the obligations imposed be diminished or agreements be modified
so as to jeopardize the effectiveness of the Schedule M Agreement as security for the
payment of notes, bonds, or other evidences of indebtedness issued by MEAN.
14. This Third Revised Supplemental Agreement shall be governed by the laws of the
State of Nebraska.
[SIGNATURE PAGE FOLLOWING.]
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8
IN WITNESS WHEREOF, the undersigned parties have duly executed this Third
Revised Supplemental Agreement as of the date below.
MUNICIPAL ENERGY AGENCY OF CITY OF ASPEN, COLORADO
NEBRASKA
By: ____________________________ By: _____________________________
Title: __________________________ Title: ___________________________
Date: __________________________ Date: ___________________________
Attest:
_______________________________
City Clerk
(SEAL)
K:\Legal\K\MEAN\ERPA\Aspen, CO\Aspen_Third Revised Supplemental Agreement_final_071515.docx
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Exhibit A
to the
Third Revised Supplemental Agreement
between
Municipal Energy Agency of Nebraska
and
The City of Aspen, Colorado
Delivery Point
P= Point of Delivery
M= Point of Measurement
Point of Delivery Adjustment Equals None
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Exhibit B
to the
Third Revised Supplemental Agreement
between
Municipal Energy Agency of Nebraska
and
The City of Aspen, Colorado
Existing and Proposed Hydropower Projects of the City of Aspen, Colorado
[See attached.]
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EXHIBIT
EXISTING HYDROPOWER PROJECTS OF THE CITY OF ASPEN
Estimated May - Estimated Oct ber -
Year of Installed September Energy April Enery
Project Location Start-up Capacity (KW) Production (GWH) Production (GVH)
Ruedi Reservoir 1986 5,000 9.8 10.5
Maroon Creek Pipeline 1989 360 1.1 0.3
Ridgway Hydro' 2014 4,500 2.8 7.0
Total of Installed Hydro 9,860 13.7 17.8
PROPOSED HYDROPOWER PROJECTS TO BE BUILT OR
PARTICIPATED IN BY THE CITY OF ASPEN
Estimated May - Estimated Oct4ber -
Year of Installed September Energy April Energy
Project Location 2 Start-up Capacity (KW) Production (GWH) Production (GWH)
I-
CastleCreekHydro 2014 1,170 4.7 1.1
Other Hydropower Projects 610 0.5 0.4
Total of Proposed Projects 1,780 5.2 1.5
The City of Aspen will have the ability to purchase Ridgway power during the test period,
starting in late 2013. If, for any reason, Aspen cannot participate in the Ridgway project, the
4,500 KW installed capacity associated with it will be automatically added to the 610 KW
allowed installed capacity for proposed "Other Hydropower Projects."
2
Other hydropower project locations may be substituted, subject to MEAN Board approval,
not to exceed a total project capacity of 1,780 KW, or 6,280 KW if the City of Aspen cannot
participate in the Ridgway project.
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MEMORANDUM
TO: Mayor and Council
FROM: Linda Manning, City Clerk
DATE: July 20, 2015
RE: Council Appointments
Based on Council’s discussion, below are the Council appointments for 2015-2016. By adopting
the consent calendar, Council will be making the following appointments.
Boards
Mayor Pro Tem Adam Frisch
CAST Steve Skadron
RFTA Steve Skadron
RFTA alternate Ann Mullins
DRGW Covenant Enforcement Ann Mullins
NWC Council of Government Bert Myrin
Aspen Chamber Resort Association Steve Skadron
Arts Council Ann Mullins
Ruedi Water & Power Authority Ann Mullins
CORE Board Adam Frisch
Sister Cities Art Daily
Burlingame Housing Inc Barry Crook
CML Policy Advisory Board
Nordic Council Adam Frisch/Art Daily
Pitkin County HHS Board Ann Mullins
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VII.c
Regular Meeting Aspen City Council July 13, 2015
1
COUNCILMEMBER COMMENTS ............................................................................................................ 2
CITY MANAGER COMMENTS ................................................................................................................ 2
BOARD REPORTS ...................................................................................................................................... 2
NOTICE OF CALL UPS .............................................................................................................................. 2
CONSENT CALENDAR ............................................................................................................................. 3
Minutes – May 4, June 8 & 22, 2015 .................................................................................................... 4
Board Appointments ............................................................................................................................. 4
Approved Amendments to the Aspen/Pitkin Employee Housing Guidelines ....................................... 4
ORDINANCE #24, SERIES OF 2015 – Castle Ridge Planned Development Amendment ........................ 4
ORDINANCE #25, SERIES OF 2015 – CC and C-1 Zone Districts Code Amendment ............................. 5
ORDINANCE #26, SERIES OF 2015 – Obermeyer Place Rezoning .......................................................... 6
RESOLUTION #72, SERIES OF 2015 – Land Use Code Reliance Policy Resolution ............................... 8
ORDINANCE #22, SERIES OF 2015 – Hutton Lot Split (725 Cemetery Lane ) ....................................... 9
ORDINANCE #21, SERIES OF 2015 – Gibson Matchless Subdivision ................................................... 11
Call up of HPC approval – 223 E Hallam Street ........................................................................................ 14
RESOLUTION #71, SERIES OF 2015 – Setting Public Hearing for Annexation of 705 West Hopkins .. 15
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VII.d
Regular Meeting Aspen City Council July 13, 2015
2
At 5:00 pm Mayor Skadron called the regular meeting to order with Councilmembers Daily, Myrin,
Frisch and Mullins present.
COUNCILMEMBER COMMENTS
1. Councilwoman Mullins thanked the community for their support from the last few weeks.
2. Councilman Frisch said it is good to be back. Africa was wonderful but Aspen is home.
3. Councilman Myrin passed out an email to Council. He received an invite to a tech conference on
July 22 nd and said it should be noticed.
4. Councilman Myrin thanked the County for the landfill tour. It was very helpful.
5. Mayor Skadron gave a big thank you to the Chamber for a fun 4 th of July. He thanked the fire
department for the soak.
6. Mayor Skadron also thanked Jack Johnson for the landfill tour. It is great science and perspective
on the consumption of our society.
7. Mayor Skadron gave congratulations to former Mayor Mick Ireland who got engaged to be
married this week.
CITY MANAGER COMMENTS
Randy Ready introduced Mitch Osur as the parking services director. He is most recently from American
Recreational Products In Boulder and Aspen Sports before that. He lives in Carbondale. Mr. Osur said
he is excited to be here and has experience with retail and the community. He has hit the ground running.
BOARD REPORTS
1. Councilwoman Mullins said there is a new show at the red brick with a music theme. The plein
air festival coming up as well as the 2 nd annual thrift shop art auction.
2. Councilwoman Mullins attended the RFTA retreat and the theme was enhance versus expand.
Ridership was 4.9 million in 2014 and anticipated to be 5.4 million by 2024. The focus is on
creating a fully integrated system in the next 10 years. More details are online.
3. Councilman Frisch will attend the CORE meeting Thursday and will have more at the next
Council meeting.
4. Councilman Frisch said Frontiers has been meeting twice a month and some of their work will be
coming to fruition tonight along with APCHA.
5. Mayor Skadron attended the Chamber Board meeting and they reported Food & Wine was a great
success. The luncheon had 290 attendees. The Membership arm of the chamber is working with
Mike Kosdrosky from APCHA on a survey that will target workers. The visitor centers are busy
and the airport guest services is busy.
NOTICE OF CALL UPS
100 S Spring Street
Justin Barker, community development, said this is a commercial design project that included renovation
of the existing space as well as some new exterior materials. There is some minor changes to massing
and height of the building. It was a consolidated commercial review approved by the Planning & Zoning
commission by a 6 to 0 vote one June 16.
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Councilwoman Mullins said it is a great improvement over what is there. Is there an effort to minimize
the visual impacts of parking. Mr. Barker said they are require to have two parking spaces and they will
be located in the garage.
Councilman Myrin said the minutes mention colors and materials. Are colors regulated. Mr. Barker
replied colors are not regulated but suggested by staff to make it not look historic. Councilman Myrin
said the recycle trash area is smaller than required. Mr. Barker said there was discussion with the
environmental health department that would allow special review approval for the space. Councilman
Myrin asked if this happen frequently. Mr. Barker replied he is not sure. Sometimes there are
dimensional requirements that require it.
Councilman Daily said he noticed there was no public comment and it was a 6 to 0 vote. He sees no need
to call it up.
Mayor Skadron said the results of the application are to reduce net leasable space that will then become
residential. Mr. Barker replied it will not become residential and it is required to become commercial
space. It is existing as three stores but is being reduced to two stories. Mayor Skadron asked if there is a
concern we are losing net leasable. Mr. Barker said it is an improvement of the space. Mayor Skadron
said the reality is it will become an art gallery. Mr. Barker replied we can’t regulate what goes in to the
commercial space. Mayor Skadron said it is easy to get caught up in the idea of improving the
commercial space. Mr. Barker said it may not be a gallery forever.
Mayor Skadron said it will not be called up.
CONSENT CALENDAR
Board appointments
Mayor Skadron thanked Councilman Frisch for signing off on the appointment letters. The past several
years we have had trouble getting the community to sign up for boards. He thanked everyone for
stepping up and the Council for conducting the interviews. Mayor Skadron read the appointments.
Aspen/Pitkin Employee Housing Guidelines
Mike Kosdrosky, housing, stated they updated the policies in part three table seven to standardize the
square footage requirement for bedroom sizes. Page 18 part three section six “developers of new
affordable housing projects will be required to provide a capital reserve study”. This goes along with the
state legislature common ownership interest act. HOAs going forward will be required to have a capital
reserve study and fund so future deed restricted properties will start off on a strong foot. Page 31 section
5 part 2, adds language if potential tenants provides all the documentation they are still not guaranteed a
unit. All new applicants are required to pass a short quiz to make sure they are an informed buyer. Page
53 part seven, got the most attention and adds a paragraph for owners with more than one property within
the exclusion zone that they only have 180 days to sell one of the units or one of the units must be listed
for sale. There is a procedure in place for this. It requires if you can’t sell within 180 days the most they
can get is 95 percent of the maximum sales price. This only applies to a handful of cases every year. It is
a very necessary regulation to have in place to make sure there are no ownership units to have out there
that could be occupied by someone in need of it.
Councilman Frisch there has been a lot if hard of work by APCHA and frontiers.
Councilman Myrin asked about the five percent and are the lenders ok with this. Mr. Kosdrosky said they
did not check with them directly. They felt it was a necessary and valid stick to make sure non-compliant
owners don’t sit on their property thinking they could get a price above the affordable housing market
price. They are serious about freeing up inventory. Councilman Myrin said he thinks it makes sense.
Cindy Christensen, housing, said they could ask for a hearing in front of the board. The point is not to
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make them go bankrupt or not pay their debt off. Councilman Myrin said his concern is about the lenders
willing to lend. Mr. Kosdrosky said there is a process in place with the notice of violation.
Councilwoman Mullins asked if there is a way to determine what the reserve fund should be. Also,
affordable housing units in a free market complex needs looked in to a little more. Ms. Christensen said
anything new in a mixed project moving forward will have condo decs where the HOA dues can only be a
percentage of the assessed value between the free market and the deed restricted.
Councilman Daily said he thinks they are well considered changes. APCHA made the right decision in
elimination the priority.
Mayor Skadron asked if the map for ownership exclusion zone was not modified. Councilman Frisch
replied no and he is not sure when it was last modified. Ms. Christensen said it has been in place for the
last few years.
• Minutes – May 4, June 8 & 22, 2015
• Board Appointments
• Approved Amendments to the Aspen/Pitkin Employee Housing Guidelines
Councilman Frisch move to adopt the consent calendar; second by Councilwoman Mullins. All in favor,
motion carried.
ORDINANCE #24, SERIES OF 2015 – Castle Ridge Planned Development Amendment
Sara Nadolny, community development, told the Council this is for the Castle Ridge Apartments which
are located in the R15 zone district. It is part of the water plant affordable housing and was approved in
1980. There are eight housing building on the site with ten units per building. There are two small sheds
with a deck and fencing between buildings F and G. They measure approximately 323 square feet. It is
unknown when the sheds were constructed and they were not included in the original plat. There are also
no building permits for them. The applicant is proposing to demolish the sheds and would like to replace
them with one larger 980 sq ft shed. There is no site specific approval for the Castle Ridge apartments
only a final approved plat. The code says in the absence of an approved site specific development plan
the existing development that is on the property when it is approved represents the approved dimensions
of the planned development. The floor area is roughly around 64,000 sq ft. The applicant is requesting a
minor project review to amend the floor area for the planned development by 980 sq ft. The site is
located 8,040 feet above the elevation and is subject to the 8040 green line review. The new shed is
proposed in the same location but a larger footprint. It is one story but larger in size. Staff has reviewed
the criteria and finds it meets the requirements. It is an area suitable for development. Staff worked with
engineering and conditioned the approval with a drainage report. Second reading is scheduled for August
tenth.
Councilman Frisch asked if other options were explored that would not require the public hearing option.
Overall he thinks it is warranted. Ms. Nadolny said it is equipment that needs to be kept on site.
Councilman Myrin asked if this has this been to P&Z. Ms. Nadolny replied it was at P&Z and there will
be minutes for second reading.
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Councilwoman Mullins asked if the increase in size requires a variance. Ms. Nadolny replied it does not.
Councilwoman Mullins said she would like a summary of 8040 review standards.
Mayor Skadron also asked for more information on the 8040 and what is a heightened 8040. Ms.
Nadolny stated it is when it gets to the 8040 elevation it becomes a heightened review. Mayor Skadron
said on page 67 of memo in staff comments it is unclear what the comment of no evidence means. Ms.
Nadolny said they have not found anything this was legally built. They have not found any building
permits or PD amendments.
Councilman Frisch moved to read Ordinance #24, Series of 2015; seconded by Councilman Daily. All in
favor, motion carried.
ORDINANCE NO. 24
(SERIES OF 2015)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING A REQUEST FOR 8040
GREENLINE REVIEW AND MINOR PLANNED DEVELOPMENT AMENDMENT FOR 1175
DOOLITTLE CIRCLE, KNOWN AS CASTLE RIDGE APARTMENTS AND LEGALLY
DESCRIBED AS A METES AND BOUNDS DESCRIPTION, PITKIN COUNTY, COLORADO
Councilwoman Mullins moved to adopt Ordinance #24, Series of 2015 on first reading; seconded by
Councilman Frisch. Roll call vote. Councilmembers Mullins, yes; Daily, yes; Frisch, yes; Myrin, yes;
Mayor Skadron, yes. Motion carried.
ORDINANCE #25, SERIES OF 2015 – CC and C-1 Zone Districts Code Amendment
Chris Bendon, community development, told the Council this ordinance would restore free market
residential as a permitted use in the CC and C1 zone districts. Ordinance 25 of 2012 made it a non-
conforming use. It has created obstacles to remodeling and financing. The policy direction was to restore
the uses as conforming and allow individual units to combine but not allow for expansion. This
ordinance represents that direction. There will be more on deck expansions at second reading. These
changes apply zone wide. The options would include allow no deck expansions which would encourage
no investment. We could allow for deck expansions or a minor level of expansions. There is a question
regarding overhangs and at what point would it trigger FAR.
Councilman Daily said he is looking forward to the deck expansion discussion and generally supports
them. He thinks they do not represent floor area.
Councilman Frisch said non-conforming is at the top of the priority list. He asked if other buildings have
reached out to Staff regarding this. Mr. Bendon replied not that he is aware of. Councilman Frisch said
he could not figure out if deck expansions encouraging investment is a good or bad thing. Mr. Bendon
said increasing decks, particularly rooftop decks could enhance the value of these units and could put
internal strain and conflict on the commercial spaces within these mixed use buildings. Councilman
Frisch said he thinks we need a discussion on expansion and on improvement. You don’t need to be
bigger to be better.
Councilman Myrin stated he was supportive of this in C1 at the last meeting and not in CC because it is a
smaller space and a transition zone. It is important to have this prior to a certain date regardless of the
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zone. The pathway should be the same. He would like to see expanding addressed throughout town not
just C1. If we want to change the path we change it for all zones. For next reading confirm the number
of units in C1 and CC.
Mayor Skadron asked if he would allow in C1 the privileges prior to ordinance 25 including the rooftop
decks. Councilman Myrin replied only those build prior to the ordinance 25 date. Councilman Frisch
said he is happy to explore what Councilman Myrin is talking about. He would like to try to get back to
what they had before and use that as a basis and figure out if we want to curtail or enhance what they had.
I don’t want to curtail their real estate transactions. Rooftop decks require a bigger discussion. I think
we have to be careful dealing with 170 other units. Councilman Myrin said expansion is combining two
units even if there is no technical expansion. He asked for the last couple of applications that tried to
combine units so Council can see how difficult the path is.
Mayor Skadron said there would be no physical increase in the footprint. Mr. Bendon replied correct.
Mayor Skadron asked how is that monitored. Mr. Bendon said it requires a building permit and a land
use approval. Mayor Skadron said the challenge he has with this is he does not want to get in the
situation where we are challenging the situation where ordinance 25 needs to be overturned. What would
prevent the owners in CC from asking for the same thing. Councilman Frisch said when it was put in to
place if we knew then what we know now we might have figured out what to put in place. Just looking at
the non-conforming clause I see no reason why we should increase the height or should see free market
going into these buildings. Any time we are talking about expansion it should be a bigger conversation.
There is a difference between improving wall paper or a new refrigerator and expansion.
Councilman Myrin said it is a trust issue with the City. We need to resolve what happened. He is not
ready to unwind what happened in the commercial core.
Councilman Frisch moved to read Ordinance #25, Series of 2015; seconded by Councilman Daily. All in
favor, motion carried.
ORDINANCE NO 25
(SERIES OF 2015)
AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING AMENDMENTS TO CHAPTER
26.710.140 – COMMERCIAL CORE (CC) ZONE DISTRICT, AND CHAPTER 26.710.150 –
COMMERCIAL (C-1) ZONE DISTRICT, OF THE CITY OF ASPEN LAND USE CODE
Councilman Frisch moved to adopt Ordinance #25, Series of 2015 on first reading; seconded by
Councilwoman Mullins. Roll call vote. Councilmembers Frisch, yes; Myrin, yes; Daily, yes; Mullins,
yes; Mayor Skadron, yes. Motion carried.
ORDINANCE #26, SERIES OF 2015 – Obermeyer Place Rezoning
Sara Nadolny stated Obermeyer Place was approved in 2003 and zoned Service Commercial Industrial
with a PD overlay. There is a mix of residential, commercial and industrial uses within the five building.
There were a number of uses there prior to being developed as Obermeyer Place that were temporarily
located off site and allowed to move back and are considered legally established non-conforming uses.
The SCI zone is a unique zone district and has very specific uses by district. For the past couple of years
Council has had a top ten goals to revitalize the SCI zone. Through outreach it became clear the zoning
was favored by businesses in a few areas but not favored at Obermeyer. The applicant is requesting a
rezone from SCI to NC. They are also requesting an amendment to the planned development overlay that
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would permit the SCI type uses to continue to be allowed to locate within Obermeyer Place. Since the
beginning owners have struggled to find business that fit within the list of allowed uses. Amendments
have been made throughout the years. This went to P&Z on May 26 and they issued a recommendation
of denial. They asked Council to reexamine the SCI zone district language to make an adjustment that
would provide a fix for Obermeyer Places issues. Staff is still supportive of the application. There has
been a history of changing the SCI language to fix what needed to be located there. The history of
amending the zone works well for a while but not for Obermeyer place and is not sustainable. Staff feels
the best way to resolve the problem at Obermeyer place is to rezone it. Second reading is scheduled for
August 24.
Councilman Myrin said he would like to know where the SCI business would go with the rezone. Ms.
Nadolny said that is why Staff is recommending the PD amendment.
Councilwoman Mullins asked if the non-conforming uses would still be allowed. Ms. Nadolny replied
they are non-conforming to SCI but conforming to NC. Councilwoman Mullins said she would like
further discussion on why SCI is not successful and the pros and cons of the NC zoning.
Councilman Daily said the exclusionary uses are too narrow and not brought in the businesses we hoped
for. There is some validity in that. What consideration has given to if the rezoning is authorized as to
what other SCI zones in the City this philosophy would apply to. Ms. Nadolny said when Staff did their
outreach there were some zones that were happy and felt it worked for them. Councilman Daily said
there is good reason to give consideration to this property but wondered if there was questions or
pressures from other areas.
Councilman Frisch asked why shouldn’t we be looking at all the other SCI zones. There are some basic
needs businesses of the community that we would hate to see go away in a high rent town. If affordable
housing has a hard cap this is a soft cap in SCI and NC. If we allow the community to figure out the
types of business to go in there Bert is right the rents will go up. We all agree the SCI zone is broken but
the goal we are trying to reach we all believe in, how to hang on to the basic serving businesses. You also
have empty businesses that the locals can’t go in to. How do we allow the local entrepreneur to flourish
without high rent. He is torn about what to do. NC allows more uses but how much different is it than
C1 in terms of uses. Ms. Nadolny said there is not a lot of difference in uses between C1 and NC.
Councilwoman Mullins said we are lucky we have the SCI zone and should not be too quick to get rid of
it.
Mayor Skadron said he agrees with Councilman Myrin and has great reservations about up zoning. The
original mission of Obermeyer was to keep space affordable for locally serving businesses. He would
like the minutes from the 2006 Council discussion on Obermeyer. He believes SCI should continue to
permit a narrow set of uses but we may need to change what the uses are. We want to create a place
where small business can practice their trade.
Jerome Simecek and Jim Corpland are representing Snowmass Hospitality.
Councilwoman Mullins moved to read Ordinance #26, Series of 2015; seconded by Councilman Frisch.
All in favor, motion carried.
ORDINANCE NO. 26
(SERIES OF 2015)
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AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING A REQUEST FOR
REZONING AND MINOR PD AMENDMENT FOR OBERMEYER PLACE, LEGALLY DESCRIBED
AS ALL LANDS BETWEEN EAST BLEEKER STREET AND RIO GRANDE PLACE, ALL LANDS
BORDERING EAST BLEEKER STREET BETWEEN SPRING STREET AND RIO GRANDE PLACE,
AND PORTIONS OF RIO GRANDE PARK, AND MORE PRECISELY DESCRIBED IN EXHIBIT A,
PITKIN COUNTY, COLORADO
Councilman Frisch moved to adopt Ordinance #26, Series of 2015 on first reading; seconded by
Councilwoman Mullins. Roll call vote. Councilmembers Myrin, yes; Mullins, yes; Frisch, yes; Daily,
yes; Mayor Skadron, yes. Motion carried.
RESOLUTION #72, SERIES OF 2015 – Land Use Code Reliance Policy Resolution
Chris Bendon told the Council they are proposing to amend the land use code regarding vested rights. It
is an administrative policy clarifying what land use code applies to what situation. There are three
distinctions. A minor amendment that is inconsequential would stay in the code it applied or was
approved under. A major amendment would be approved under a current code. They would like to
provide clarity for multi-step process projects like conceptual and final applications. Staff would like
these projects to stay within the code they started the project under. Staff reached out to P&Z and they
are fully supportive of the change.
Councilwoman Mullins asked if Staff is confident the definition of major and minor are clear enough.
Mr. Bendon said he would like to say amending the code would clear that up but he does not think it is
possible. Staff would have to make that decision. He suggests having language in the code that guides
you to that decisions. The preference is to have some guidance in the code. There is an escape route for
folks who don’t like the decision.
Councilman Myrin said the P&Z minutes are really short. Mr. Bendon said it happened at a work session
but Staff can provide some more information. Councilman Myrin said he likes the idea of providing
clarity of when rights become vested for an applicant. He would lean to making it as soon as possible
rather than favoring earlier vested rights for applicants. The code changes are made for good policy
reasons and we want those to take place as soon as possible. He does not want to slide backwards with
this code amendment. Mr. Bendon said staffs intent is that codes apply as quickly as they are legally
allowed to.
Councilman Frisch said he is good with the direction we are going.
Councilman Daily agreed.
Mayor Skadron asked if this tightens the code. Mr. Bendon replied it does not. It enables staff and the
development community to understand the changes they can make without being under a new code.
Mayor Skadron opened the public comment.
1. Mitch Haas said unless you know this policy is written up you don’t know about it. This is a
good idea.
2. Herb Klein said if the new code is more liberal could you get the option to elect to use the new
code. Building in some flexibility would be helpful.
Mayor Skadron closed the public comment.
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Mayor Skadron said he wants to be confident should a more liberal code be in place it doesn’t result in
more development rights or ensure the applicant is not entitled to something they would not have got.
Mr. Bendon said the important thing is understanding what you are bound by. Staff would want to make
sure the end result is something that would not have not been allowed by either code.
Councilman Frisch moved to adopt Resolution #72, Series of 2015; seconded by Councilwoman Mullins.
Roll call vote. Councilmembers Frisch, yes; Mullins, yes; Daily, yes; Myrin, yes; Mayor Skadron, yes.
Motion carried.
ORDINANCE #22, SERIES OF 2015 – Hutton Lot Split (725 Cemetery Lane)
Councilman Frisch stated he has a past and current relationship with Mr. Hutton and recused himself.
Hillary Semnick, community development, told the Council the applicant is seeking lot split approval.
The property is located in the R 15 zone district. It is located on Cemetery Lane and is larger than what is
typically there. There is a lot bordering the westerly parcel known as the Ironwood Condos. The parcel
has not been previously subdivided and is eligible for a lot split. The Ironwood condos does not have
frontage on a public right of way and access to the parcel is provided through an access easement.
Engineering has requested the existing curb cut for the circular driveway be abandoned and will provide
for one new curb cut. The owners of the Ironwood have concern with the shared use of the access
easement. The existing single family home spans the lot line and creates a nonconformity. The ordinance
contains a provision to allow for the life of the existing structure only. The Holden Marolt ditch runs
along the east edge of the property and there is a condition that prior to the recordation of the plat the
ditch will be shown on the plat. The impact fees will be assessed when the structure is demolished. Floor
area calculations must be provided prior to demolition of the existing structure. These fees are then
assessed on the new development and the existing development floor area credit is deducted from that
figure and then assessed on the new floor area. The ordinance included a condition that splits these fees
between the lots. Staff finds the application meets all the review criteria and recommends approval. Staff
received a letter from Pat Mcallister, attorney representing 729 Cemetery Lane, objecting to engineering’s
access easement request. Engineering will allow for one curb cut at lot two and asks for lot ones egress to
be via the non-exclusive easement agreement. Mayor Skadron asked what is the total number of curb cuts
if this would move forward. Ms. Semnick replied currently there is three and engineering wants to reduce
it to two.
Councilwoman Mullins asked if a single family or duplex could be built on 15,000 sq ft. Ms. Semnick
replied correct.
Councilman Daily said currently this is a non-exclusive access easement. Mr. True replied correct.
Mayor Skadron said outside of the easement Ironwoods interests are not touched. Ms. Seminick replied
correct.
Councilman Myrin said on page 254 the access easement is deducted from the FAR. Ms. Semnick said it
would be applied to lot one. That is why the gross lot area is larger than lot two. Each lot will receive
17,681 sq ft. there is approximately 4,000 sq ft deducted for the non-exclusive access easement from the
net lot area from lot one.
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Brian McNellis, from BMC said they are in agreement with Staff’s findings. Staff has been great to work
with. He reviewed the code criteria including lot split and general subdivision review standards. He said
the request complies with the standards including no more than two lots are created by the lot split and
guaranteed access to a public way. The proposed lot line will also approximate the plotting of the original
Aspen town site. He also reviewed zoning conformance. The resulting lots will exceed the minimal
dimensional requirements of the R15 zone district and no non-conformities will be created by the lot split.
The dimensional requirements will also be met by creating two smaller parcels that better conform to the
intent of the R15 zone district. The application complies with every aspect of the code and the zone.
Mayor Skadron opened the public comment.
1. Patrick Mcallister, representing Andrew and Debora Katz, said they don’t oppose the lot split or
the density. Their concern is the impact on the property with the access and parking. It is fenced
and vegetated with mature trees and it is unfair to disturb that. It will overburden the easement.
He handed out the letter that was submitted to Mr. True and Ms. Seminick earlier. Exhibit 2 is
the land use code that was in effect at the time and a duplex was not allowed. There is a question
as to the residential design standards requiring the garage to be pushed back off of Cemetery
Lane. His clients are concerned about the impacts of that. There is a fairness aspect to this.
They would like to see a maximum of 20 feet use of the drive then a left had turn.
Mr. McNellis said this is not a design review but an application requesting a lot split. We are
complying with engineering’s request to use this easement. We get docked FAR by using this
easement. We want to be a good neighbor. We encourage there to be a maintenance agreement
with the Ironwood but are a little hesitant to go into what is dictated as to what can happen on this
property. Steev Wilson said there is a non-exclusive easement that has been there. We would
like to use the easement that already exists. We are not sure what the site development will be.
2. Herb Klein, represents the client that has the other Ironwood unit under contract. He shares Pat’s
clients concerns. He would like Council to take up Mr. McNellis’ s offers for a maintenance
agreement.
Mayor Skadron said the neighbors should work this out without coming to Council. Is this a Council
matter. Mr. True said engineering supports the opportunity to eliminate the curb cut. This is a private
dispute. The neighbors have issues they could assert that could theoretically prevent the use of that non-
exclusive access easement for access to lot one. It has been used in a particular manner for a lot of years
and they could sustain that claim. What is important to the City to maintain is there are only two curb
cuts to the properties. I have proposed a suggestion that will take the City out of the dispute by adding
language to section four where it says engineering if objections by grantees of the easements recorded in
book 572 page 384 prevent the use of that easement by lot one, then lots one and two shall enjoy only one
additional curb cut serving both lots subject to the approval of the city engineer. It takes the City out of
the private dispute and protects us if the private dispute goes too far and turns out lot one cannot enjoy the
non-exclusive easement. Mr. McNellis has offered to share the maintenance. Since they have offered
that I think it is appropriate to make it a condition. I want to protect the City in the event lot one is not
allowed to use it.
Councilman Myrin suggested to start where Mr. True is ending with one curb cut mid way between the
two lots.
Councilwoman Mullins said she is surprised and disappointed we are looking at this. This is not the thing
Council should be looking at.
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Councilman Daily agrees with Councilwoman Mullins. The language of the easement is crystal clear. It
was created for the benefit of both properties. The parties should be able to come to some understanding.
One curb cut is a lot of use for four duplexes. He agrees with the current owners to minimize the impacts
on Ironwood. They don’t need to use the entire length of the driveway. The shared cost agreement
makes a lot of sense. Use by this property was intended by the grantor of this easement.
Councilman Myrin said he is more aligned with one curb cut to be shared by both properties. He would
not support more than two.
Mr. Bendon said Staff’s position is no more than two curb cuts. Our suggestion is the properties work
and resolve this and take the City out of it.
Mr. True said Councilman Daily’s position is different. He is concerned with the one use by four units. I
think you can add two conditions to section four including if lot one is relying on the non-exclusive
easement there shall be a maintenance agreement as well as if they are unable to use the non-exclusive
easement lots one and two shall have to share a curb cut.
Councilwoman Mullins moved to adopt Ordinance #22, Series of 2015 with amendments; seconded by
Councilman Daily. Roll call vote. Councilmembers Myrin, yes; Daily, yes; Mullins, yes; Mayor
Skadron, yes. Motion carried.
ORDINANCE #21, SERIES OF 2015 – Gibson Matchless Subdivision
Chris Bendon stated 980 and 990 Gibson Avenue is located in the Smuggler neighborhood. Both have
historic landmark status. It is a duplex property on one single parcel connected by a garage. Through
quiet title the owners acquired two additional parcels including the northerly parcel of Silver King Drive
and the southerly parcel of Silver King Drive. The original proposal would combine the parcels and split
to create two parcels with a weird shape to create equal development rights. Staff said it did not meet the
subdivision requirements and suggested it be denied. The applicant has revised the application to create a
more simple set of lots to create a more straight lot line with the request to more equally allocate the lots.
The current lot allows for two units with maximum floor area of 4,470 sq ft or 2,486 sq ft per home. The
property is eligible for a 500 sq ft bonus from the HPC. The proposed subdivision is to retain the 2,486
sq ft cap. Each lot would be allowed 3,483 sq ft max with 1,007 sq ft for and ADU or TDRs and each
eligible for a 500 sq ft bonus. The lots are large enough to contain a duplex or single family home. Staff
is recommending in favor of the lot split application. Both structures are in need of historic preservation
attention. There is already a house size cap of 2,486. Typically a bonus is granted with there is an
extraordinary historic preservation effort. All told it is a plus 3,000 sq ft of floor area.
Mitch Haas stated they are good with the staff recommendation. It cleans up the past issues. There are
potential for floor area bonuses in the future. These buildings need some incentive to be able to return to
full glory. It would be good to keep that incentive available. Each dwelling unit will be limited to 2,486
sq ft of floor area with 1,007 left for a voluntary ADU.
Councilman Myrin said the Staff analysis says it is 2,000 sq ft more than what is allowed today. The
2,000 is by right but is the subdivision approval by right. Mr. Bendon replied if they comply with the
criteria for the subdivision. Councilman Myrin said the Council conversation is between the 2,000 sq feet
and the 3,000 sq ft that includes the additional bonus.
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Councilwoman Mullins asked about the comment the floor area bonus cannot be turned into a TDR. Mr.
Haas said it is his understanding when HPC grants the bonus the plans have to use that floor area in those
plans and on site. Mr. Bendon said he does not know if it is a codified change or just a practice of Staff
and HPC.
Councilman Daily said he would like to ask for the same commitment that the 500 sq ft bonus not be
turned into a TDR.
Councilman Frisch asked if the 2,000 sq ft is by right because the property was not fully maxed out when
the structure went up. Mr. Bendon said the parcels acquired by quiet title don’t contribute development
rights. The original parcels are already eligible for a lot split and would generate that much development
in total. Councilman Frisch said he appreciates the client wants to make a 1,007 sq ft ADU but could
they make a larger home. Mr. Bendon replied no. Councilman Frisch said he wants to make sure the
bonus is for exceptional. When does the bonus decision get made. Mr. Bendon said it is not here.
Councilman Frisch said we can take away the bonus opportunity. If we grant it HPC will only grant it if
it is exceptional. Councilwoman Mullins said it would be a mistake to take it away here.
Mayor Skadron asked if the motion fails what direction do you take. Mr. Haas said they haven’t planned
out B or C. He thinks this is reasonable and makes sense. Mayor Skadron asked if the neighbors are
aware of this. Mr. Haas said they did the normal public outreach. The density will not change.
Mayor Skadron opened the public comment.
1. Chris Greenwood, racquet club condos, said she is concerned with the density. The separate
ADU increases the density. She is concerned with the traffic. Gibson is a dangerous road.
Where the driveways are now is better than putting them on Matchless. She is concerned with the
potential of the house being put on the northern side of the lot as it will have a greater impact on
the views.
2. Alan Becker said this is a more reasonable plan than the previous one and a more favorable way
to go. These are quite large lots. To preserve neighborhood character and peace he would prefer
access on Gibson than Matchless. The City and HPC needs to look at the bonus.
Mayor Skadron closed the public comment.
Councilman Myrin said he is supportive where Staff started with the application meets the criteria for
approval. He opposes the HPC bonus. He is comfortable with the ordinance eliminating the 1,000 sq ft
for the bonus. Councilman Frisch responded he is ok with the possibility of the HPC bonus. Councilman
Myrin said to eliminate the HPC bonus. Mr. Bendon said the floor area for each lot is 3,493. It leaves
with 1,007 to figure out what to do with. It could be an ADU or TDRs. There are also potential HPC
bonuses.
Councilman Frisch asked if one possibility is to scrape and start from scratch. Mr. Haas replied no, there
is a historic building on each site. Mr. Bendon said the advantage of the subdivision is the way the Silver
King Drive was vacated through quiet title created two individual lots. Those lots were formerly platted
as right of way have their own exclusive lot with zero floor area. There is some advantage in merging all
the land to clear up all this nonsense of the right of way. Mr. True said the ordinance contains language
for a waiver of possible litigation.
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Councilman Daily said this may be as good as a workable solution as we are going to get. He asked if
moving the access off of Gibson to matchless makes any sense. Mr. Bendon replied that is counter to
engineering’s recommendation. Councilman Daily said he understands Councilman Myrin’s concern
over square footage but it is the current zoning and he does not have a strong objection to it and is
comfortable with Staff’s recommendation as proposed.
Mayor Skadron said the proposal is a home up to 2,486 sq ft plus an ADU or TDR of 1,007 an up to 500
sq ft of HPC bonus per parcel.
Councilman Myrin said he would like the HPC bonus removed. It would more than likely end up off site
as a TDR. Councilman Frisch said the applicant is willing to put in writing that the HPC bonus would not
be used as TDRs. That’s not to say it could be used for the ADU then that square footage would go to the
TDR market.
Councilwoman Mullins said what Staff has proposed is solving one of the problems we see frequently.
FAR is quite a bit less than other lots. Considering the neighborhood it is appropriate. She does not think
you should put a condition that you can’t turn something into a TDR or take away the HPC bonus. It is
up to HPC if they get the bonus. She would support the proposal as presented.
Councilman Frisch said he agrees with Councilwoman Mullins.
Mayor Skadron has concerns about the way the ADU component is being used in the equation. Allowing
the HPC bonus creates an overly generous equation.
Councilman Frisch moved to adopt Ordinance #21, Series of 2015 per Staff recommendation; seconded
by Councilman Daily.
Amended by Councilman Myrin to Section 1 C to remove HPC bonus adding language “except that
neither lot shall be eligible to receive an HPC floor area bonus”
Councilman Frisch said he wants to leave the ordinance as written. Councilman Myrin said he is ok with
withdrawing the amendment.
Mr. Bendon said there was discussion of limiting the floor area bonus from HPC to only for on site
development and asked if there is any continued interest in that. Council replied yes. Mr. Bendon
suggested adding to Section 1 paragraph C “any grant of an HPC floor area bonus shall only be for on site
development not for transfer as a TDR”. Councilman Myrin asked if it is still fungible. Mr. Bendon
replied yes. Councilman Myrin said it is meaningless unless it is addressed.
Mayor Skadron said he would support the HPC bonus if the ADU was deed restricted into the APCHA
program. Mr. Haas said he can’t commit to that.
The motion on the table supports the Staff recommendation with the amendment to add the Vanmeter
Family Living Trust in the first whereas clause as the applicant.
Roll call vote. Councilmembers Frisch, yes; Myrin, no; Mullins, yes; Daily, yes; Mayor Skadron, no.
Motion passes 3 to 2.
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Call up of HPC approval – 223 E Hallam Street
Amy Simon, community development, told the Council in May HPC granted conceptual approval. This
is a very typical and very successful project. Council approved the subdivision. The applicant is asking
to demolish and put it back to the original structure. In the 40s to 50s there was an addition built on to the
front of house. HPC approved removing and restoring the original porch and the original character. The
applicant is proposing to lift the house and move it forward on the site. One of their main concerns is
they don’t want hand rails. They are undertaking restoration work with windows and paint. They were
awarded the 500 sq ft bonus and set back variances. They are not meeting the combined total. HPC gave
a five foot rear yard variance. The applicant worked hard with Staff from the original proposal. The
historic resource is the highlight of the site. Staff supports the proposal. HPC supported it 4 to 3. Two
members thought it should be located more to the east away from the Berko studio. It is not fair to ask
the applicant to react to another approval/applicant.
Councilwoman Mullins said the house is one of the largest in Aspen and the addition is quite large. It is
ten foot instead of 15 for the combined side yard set back. It lost five feet of side yard set back. The
current building goes over the set back as well. Ms. Simon said that is measured at the worse part.
Councilwoman Mullins said it is five feet instead of 10 feet at the alley. It should be reconsidered. The
500 foot bonus should be reserved for extraordinary efforts. It is being moved horizontally and forward.
We don’t know what should be punished because we don’t have a photograph. We have foundations.
HPC relies on us being able to get out there and look at the building and do our best.
Councilman Frisch asked what the three votes of concern included. Ms. Simon replied not having an
exact photo of the front porch and the other two were the relocation away from the Berko studio.
Mayor Skadron asked how many square feet is the historic structure. Scott Writer replied 1,850.
Councilwoman Mullins said it is a vast improvement over the first iterations. The addition completely
overwhelms the Victorian and changes the story. It would be a more successful project if it went back to
HPC. She supports it going back to HPC with set back variances, bonus and making the best project
possible.
Councilman Daily said he is comfortable with the design and we should not be talking about moving it
just because Berko moved closer. He does not see anything that suggest he should be substituting his
judgement for HPC’s or Staffs.
Councilman Frisch appreciates where Councilwoman Mullins is coming from but is not compelled there
is enough there to change anyone’s vote. He is leaning with Councilman Daily to accepting the decision.
Councilwoman Mullins said there is way to munch square footage in the addition. She would like HPC to
review it again. The addition takes away from the importance of the historic resource.
Mayor Skadron said there is not consensus to remand it back to HPC.
Councilman Frisch moved to accept HPC Resolution #16; seconded by Councilman Daily. All in favor
except Councilwoman Mullins. 3 to 1 vote, motion carried.
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RESOLUTION #71, SERIES OF 2015 – Setting Public Hearing for Annexation of 705 West Hopkins
Councilman Daily recused himself.
Jim True, city attorney, said there are three property owners; Starford Investments LLC, Shadow
Mountain Corporation and Westchester Investments, Inc who own three parcels that will be referred to as
705 West Hopkins Avenue. These parcels contain approximately 6.609 acers. The petition for
annexation was properly filled with the Clerk and starts a process for consideration of the possibility of
annexation. Resolution #71 sets a hearing for whether the project meets certain criteria. Is there an
allegation in the petition if it is desirable and necessary for annexation. The petition also has to have an
allegation that the requirements of 31.12.104 and 31.12.105 have been met. Staff has reviewed this and
determined that the requirements have been met. Staff is recommending Resolution #71 be adopted. The
other part of Resolution #71 is to set a public hearing to determine if 31.12.104 and 31.12.105 have
actually been met. That itself does not conclude the annexation. That is done by ordinance. The
ordinance requires a first reading and a public hearing for a second reading. He recommends the public
hearing be set for August 24.
Councilman Myrin asked if this should be continued. Mr. True said this is totally administrative and
starts the process.
Councilman Frisch said there is the annexation discussion that is being done for a specific reason. How
are we supposed to manage that. Mr. Bendon said these first two resolutions are administrative in nature.
We can also take in a land use application and go through the full process. The decision to annex and
approve the land use can happen simultaneously. They get tied together at the end. There will be a full
discussion of the project and that will get flushed out before the decision to annex. Mr. True said this
does not commit the Council to an annexation of the property. That must be done by ordinance.
Tom Todd, attorney for applicant said he sees this as an opportunity for the city and the land owner.
Patrick Freeman said it is our intention through the land use application to provide full disclosure.
Mr. True said Bar X, maroon creek club, highlands all went through county approvals through
annexation. This is distinct that it will not have county approvals that we are accepting.
Councilwoman Mullins asked if the property is in the county. Mr. True replied they would have an
opportunity under the county code to seek certain development approvals. They have chosen to ask for
annexation and apply under our land use process. Mr. Bendon said it is highly preferable to start the
negotiation with the city.
Councilman Frisch said he thinks Council and the community are looking forward to hear what the plan
is.
Councilman Myrin asked if there is an opportunity to meet with the county before we take their land
away. Mr. True said the county has had discussions about this. We can be in communication with the
County. It does not annex all the property the applicant owns and there may be some issues regarding the
subdivision that need to be flushed out. Mr. Bendon replied we can reach out to county com dev and ask
them to comment.
Councilman Myrin said he would like a heads up to the BOCC as well for the meeting on the 24 th . We
should be cooperating with the county. When would a referendum be possible. Mr. True said the zoning
is clearly subject to referendum but he is not sure about the annexation. Councilman Myrin asked about
the approval. Mr. True said it depends on the zoning.
Councilman Frisch asked if a vote can happen at an annexation. Mr. True said there can be elections for
annexations if they were proposed by the owners or part of the owners of the properties. Councilman
Myrin asked if there is an opportunity for Council to refer a decision to a public vote. Mr. True said the
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annexation could be an advisory vote. The zoning could be a final determination. Councilman Myrin
passed out the aspen times article. He does not want the community to think we make decisions on
reputations of applications but on the criteria of the code.
Councilman Frisch moved to adopt Resolution #71, Series of 2015 setting the public hearing for August
24, 2015; seconded by Councilwoman Mullins. All in favor, motion carried.
Mr. Freeman wants to be clear they will not be submitting a project review on August 24.
Councilwoman Mullins moved to continue the meeting to July 14, 2015; seconded by Councilman Frisch.
All in favor, motion carried.
Linda Manning, City Clerk
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Code Amendment - Land Use Code Reliance
First Reading – 7/27/2015
Page 1 of 3
MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Jessica Garrow, Long Range Planner
THRU: Chris Bendon, Community Development Director
RE: Land Use Code Reliance Code Amendment
1st Reading of Ordinance 27, Series of 2015
DATE: July 27, 2015
(PH August 10, 2015)
SUMMARY :
The attached Ordinance would amend City’s Land Use Code to clarify which land use code a
project may rely on when part of a multi-step process or when amending a previous approval.
STAFF RECOMMENDATION :
Staff recommends approval of the proposed Ordinance on First Reading.
LAND USE REQUESTS AND REVIEW PROCEDURES :
This meeting is to review potential changes to the City’s Land Use Code. Pursuant to Land Use
Code Section 26.310, City Council is the final review authority for all code amendments.
All code amendments are subject to a three-step process. This is the third step in the process:
1. Public Outreach
2. Policy Resolution by City Council indicating if an amendment should be pursued
3. Public Hearings on Ordinance outlining specific code amendments.
BACKGROUND :
The Community Development Department often receives inquiries from project applicants
wondering which land use code applies to their project. These questions arise when projects are
part of a multi-step process, such as a project requiring Conceptual HPC Review, and Final HPC
Review, as well as when a vested project requests an amendment to the approval. Staff has a
written policy addressing this issue (attached as Exhibit C), and proposes to formally incorporate
it into the Land Use Code (attached as Exhibit D). A copy of the approved Policy Resolution is
attached as Exhibit E.
OVERVIEW:
Nearly all projects require amendments to their approvals, and this code change would clarify
how to determine which land use code an amendment is subject to. In addition, it would address
which land use code is in effect when multi-step land use processes are required.
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Minor Amendments: Most amendments are simple, non-substantive changes that do not affect
a project’s original representations. For example, in 2014 the Aspen Club received an
amendment approval from the Planning and Zoning Commission to amend a few retaining wall
heights in a setback area along the back of the property. The City applied the same codes to the
amendment as were in effect when the project originally received approval. The proposed code
amendment would clarify that the vested land use code applies.
For the purposes of this code amendment, staff proposes that minor amendments are those which
do not change the inherent nature, use, massing, character, dimensions, or design of the project
or which change these attributes in such a subtle way as to be immaterial. All other amendments
would be considered major.
Major Amendment: Other project amendments appear as completely new projects with nothing
resembling the former project – different uses, new site plan, different massing and architecture,
etc. Staff believes processing these types of “amendments” under an out-of-date code is
inappropriate. This has also been a concern of the Planning and Zoning Commission,
specifically during the reviews of the Aspen Townhomes amendment and the Boomerang
amendment. Staff believes these “amendments” should be considered new projects and subject
to the land use code in effect upon submission of the amendment. Staff’s proposal would require
these so-called major amendments to be subject to the code in effect upon submission, and would
prevent an applicant from using a decades old land use code.
Multi-Step Processes: Often a project is subject to multiple land use reviews. For instance, a
project may be subject to a Conceptual Commercial Design Review and a Final Commercial
Design Review. For these projects, existing department policy is to review them according to
the land use code in effect on the date of the complete application for the first-step. For instance,
a project requiring subsequent applications for Conceptual HPC Review and Final HPC Review,
is reviewed according to the land use code in effect when the complete Conceptual HPC
application is made.
Multiple applications that are not part of a code required multi-step process would be subject to
the land use code in effect for each individual submission. For instance, an application for a
Subdivision would not vest an applicant in that code for a subsequent separate application for
Commercial Design Review.
REFERRALS & OUTREACH :
A meeting was held with the Planning and Zoning Commission to obtain feedback on the
proposed code amendment. The Planning & Zoning Commission strongly supported the code
amendment as proposed by staff to ensure a fairer and clearer review process. A copy of their
meeting minutes is attached as Exhibit B. The City Attorney’s Office has reviewed the
suggested approach and supports staff’s recommendation. In addition, copies of the existing
policy were sent to land use planners when it was issued. Additional outreach through the
Community Development Department’s newsletter is also being conducted.
STAFF RECOMMENDATION :
Staff recommends adoption of the Ordinance, on First Reading.
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RECOMMENDED MOTION (A LL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE ):
“I move to approve Ordinance No. 27, Series of 2015, on First Reading.”
CITY MANAGER COMMENTS :_____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
ATTACHMENTS :
Exhibit A – Staff Findings
Exhibit B – P&Z meeting minutes, May 19, 2015
Exhibit C – Administrative Policy on Land Use Code Reliance
Exhibit D – Proposed Code Language
Exhibit E – Approved Policy Resolution
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Code Amendment – Land Use Code Reliance
First Reading Ordinance 27, Series 2015
Page 1 of 3
ORDINANCE No. 27
(Series of 2015)
AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING AMENDMENTS TO
CHAPTER 26.304 – COMMON DEVELOPMENT REVIEW PROCEDURES, OF THE
CITY OF ASPEN LAND USE CODE.
WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen
Land Use Code, the City Council of the City of Aspen directed the Community Development
Department to prepare amendments related to clarify which land use code a project may rely
on when part of a multi-step process or when amending a previous approval; and,
WHEREAS, pursuant to Section 26.310, applications to amend the text of Title 26 of the
Municipal Code shall begin with Public Outreach, a Policy Resolution reviewed and acted on by
City Council, and then final action by City Council after reviewing and considering the
recommendation from the Community Development; and,
WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development
Department conducted Public Outreach regarding the code amendment; and,
WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing
on July 13, 2015, the City Council approved Resolution No. 72, Series of 2015, by a five to zero (5
– 0) vote, requesting code amendments to clarify which land use code a project may rely on when
part of a multi-step process or when amending a previous approval; and,
WHEREAS, the Community Development Director has recommended approval of the
proposed amendments to the City of Aspen Land Use Code Chapter 26.304 – Common
Development Review Procedures; and,
WHEREAS, the Aspen City Council has reviewed the proposed code amendments and
finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310.050;
and,
WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for
the promotion of public health, safety, and welfare; and
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO THAT:
Section 1: Chapter 26.304, Common Development Review Procedures , shall be amended as
follows:
[No Changes to Sections 26.304.010 through 26.304.060]
26.304.070 Applicability of Land Use Code Amendments.
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Applications for land use approval shall be reviewed according to the land use code in effect on
the date the application was determined by the City to be complete. The application shall
continue to be reviewed according to the provisions of the land use code in effect upon such date
throughout the application’s period of pendency.
Amendments to a project during the period of pendency proposed as a means to achieve
compliance with the land use code shall not interrupt the applicability of the land use code to the
project.
Insubstantial amendments to a project proposed during the period of pendency which are
initiated by the applicant independent of a code requirement shall not interrupt the applicability
of the land use code to the project.
Substantial amendments to a project proposed during the period of pendency which are initiated
by the applicant independent of a code requirement shall be subject to the land use code in effect
upon amendment submission. The entirety of the application shall be subject to all aspects of the
land use code in effect at the time of the amendment submission, not only the amended elements
of the project. No aspect of the project shall be considered immune from compliance.
Unless otherwise stated in the Development Order, insubstantial amendments to an approved
project shall continue to be reviewed according to the land use code under which the project was
approved for the period of statutory vested rights, as may be extended. Approved amendments
to a previously issued Development Order shall cause issuance of a revised Development Order
pursuant to Section 26.304.070.B, but shall not effect a new expiration date of the Development
Order.
Unless otherwise stated in the Development Order, substantial amendments to an approved
project shall be subject to the land use code in effect upon amendment submission. Approved
amendments to a previously issued Development Order shall cause issuance of a revised
Development Order pursuant to Section 26.304.070.B, but shall not effect a new expiration date
of the Development Order.
Amendments to an approved project accepted by the City after the period of statutory vested
rights has expired shall be reviewed according to the land use code in effect on the date the
application was determined by the City to be complete.
For the purposes of this section, insubstantial amendments are those which do not change the
inherent nature, use, massing, character, dimensions, or design of the project or which change
these attributes in such a subtle way as to be immaterial. All other amendments shall be
considered substantial.
[Subsequent sections in the Chapter shall be renumbered as follows:
26.304.080 – Development Orders (no change to text of section)
26.304.090 – Building Permit (no change to text of section)]
Section 2:
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First Reading Ordinance 27, Series 2015
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Any scrivener’s errors contained in the code amendments herein, including but not limited to
mislabeled subsections or titles, may be corrected administratively following adoption of the
Ordinance.
Section 3: Effect Upon 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 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.
In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall
become effective thirty (30) days following final passage.
Section 6:
A public hearing on this ordinance was held on the __ th day of ______________, at a meeting of the
Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall,
Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same was
published in a newspaper of general circulation within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council
of the City of Aspen on the ____ day of ____________, 2014.
Attest:
__________________________ ____________________________
Linda Manning, City Clerk Steven Skadron, Mayor
FINALLY , adopted, passed and approved this ___ day of ______, 2015.
Attest:
__________________________ ___________________________
Linda Manning, City Clerk Steven Skadron, Mayor
Approved as to form:
___________________________
James R. True, City Attorney
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Land Use Code Reliance Policy Direction; Exhibit A
Page 1 of 1
Exhibit A: Staff Findings
26.310.050 Amendments to the Land Use Code Standards of review - Adoption.
In reviewing an application to amend the text of this Title, per Section 26.310.020(B)(3), Step
Three – Public Hearing before City Council , the City Council shall consider:
A. Whether the proposed amendment is in conflict with any applicable portions of this
Title.
Staff Findings:
The proposed amendment is not in conflict with any applicable portion of Title 26. It clarifies
how land use applications are reviewed by specifying when certain codes are used.
Staff finds this criterion to be met.
B. Whether the proposed amendment achieves the policy, community goal, or objective
cited as reasons for the code amendment or achieves other public policy objectives.
Staff Findings:
The 2012 Aspen Area Community Plan includes a policy to “create certainty in zoning and the
land use process.” Updating the vested rights portion of the Code is in concert with this policy
by clarifying how the land use code applies to various applications. Staff believes there is a
community interest in updating the code to clarify how the land use code applies to project
subject to a multi-step process, as well as approved projects requesting amendments. The
proposed amendment implements existing City policy.
Staff finds this criterion to be met.
C. Whether the objectives of the proposed amendment are compatible with the
community character of the City and in harmony with the public interest and the
purpose and intent of this Title.
Staff Findings:
The intent of the proposed amendment is to ensure a predictable and clear zoning review.
Staff finds this criterion to be met.
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Page 5
Mr. Walterscheid then closed the public comment portion of the meeting.
Mr. Walterscheid asked Staff for rebuttal.
Mr. Bendon stated Staff wants to focus on making the units conforming to stay with the intent of the
ordinance. The owners have other mechanisms to utilize to pursue expansions or changes in use for the
units.
Mr. Walterscheid then asked for comments from the commissioners.
Ms. Tygre does not like to change code that only affects one property but feels the ordinance was over‐
reaching. She feels it is best to keep the scope narrow at this point in time. Mr. Gibbs agreed.
Mr. Mesirow asked if the intent of City Council was to cease development of larger penthouses. Mr.
Bendon stated he doesn’t expect the units to amortize away and feels at the time the ordinance was
approved, the focus was on the impact the penthouses had on the commercial use of the buildings
along with height, mass and scale.
Mr. McNellis asked how the 10% cap was determined. Mr. Bendon stated it is an outdated percentage
and Ms. Levy added that she found other cities are eliminating the cap altogether.
Mr. Bendon stated Staff will present options to City Council to consider to move forward.
Land Use Code Applicability
Ms. Garrow described the proposed code amendments to address minor amendments, major
amendments and multi‐step processes.
P&Z supports staff’s recommendations.
Mr. Walterscheid then adjourned the meeting.
Cindy Klob
City Clerk’s Office, Records Manager
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Exhibit D, Proposed Code Language
Land Use Code Reliance, 1 st Reading 7/27/2015
Page 1 of 1
Exhibit D: Proposed Code Language
26.304.070 Applicability of Land Use Code Amendments.
Applications for land use approval shall be reviewed according to the land use code in effect on the date
the application was determined by the City to be complete. The application shall continue to be
reviewed according to the provisions of the land use code in effect upon such date throughout the
application’s period of pendency.
Amendments to a project during the period of pendency proposed as a means to achieve compliance
with the land use code shall not interrupt the applicability of the land use code to the project.
Insubstantial amendments to a project proposed during the period of pendency which are initiated by the
applicant independent of a code requirement shall not interrupt the applicability of the land use code to
the project.
Substantial amendments to a project proposed during the period of pendency which are initiated by the
applicant independent of a code requirement shall be subject to the land use code in effect upon
amendment submission. The entirety of the application shall be subject to all aspects of the land use
code in effect at the time of the amendment submission, not only the amended elements of the project.
No aspect of the project shall be considered immune from compliance.
Unless otherwise stated in the Development Order, insubstantial amendments to an approved project
shall continue to be reviewed according to the land use code under which the project was approved for
the period of statutory vested rights, as may be extended. Approved amendments to a previously issued
Development Order shall cause issuance of a revised Development Order pursuant to Section
26.304.070.B, but shall not effect a new expiration date of the Development Order.
Unless otherwise stated in the Development Order, substantial amendments to an approved project shall
be subject to the land use code in effect upon amendment submission. Approved amendments to a
previously issued Development Order shall cause issuance of a revised Development Order pursuant to
Section 26.304.070.B, but shall not effect a new expiration date of the Development Order.
Amendments to an approved project accepted by the City after the period of statutory vested rights has
expired shall be reviewed according to the land use code in effect on the date the application was
determined by the City to be complete.
For the purposes of this section, insubstantial amendments are those which do not change the inherent
nature, use, massing, character, dimensions, or design of the project or which change these attributes in
such a subtle way as to be immaterial. All other amendments shall be considered substantial.
Subsequent sections in the Chapter shall be renumbered as follows:
26.304.080 – Development Orders (no change to text of section)
26.304.090 – Building Permit (no change to text of section)
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Resolution No. 72, Series 2015
Page 1 of 2
RESOLUTION NO. 72,
(SERIES OF 2015)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REQUESTING AMENDMENTS
TO CLARIFY WHICH CODE AN APPLICANT MAY RELY ON FOR VARIOUS LAND USE
APPLICATIONS.
WHEREAS, pursuant to Section 26.310.020(A), the Community Development Department
received direction from City Council to explore code amendments to clarify which land use code a
project may rely on when part of a multi-step process or when amending a previous approval; and,
WHEREAS, the Community Development Director recommended changes to the Land Use Code
and/or City Charter to implement City Council’s direction; and,
WHEREAS, City Council has reviewed the proposed code amendment policy direction, and finds
it meets the criteria outlined in Section 26.310.040; and,
WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on July
13, 2015, the City Council approved Resolution No. 72, Series of 2015, by a five to zero (5 – 0) vote,
requesting code amendments to clarify which land use code a project may rely on when part of a multi-
step process or when amending a previous approval; and,
WHEREAS, this Resolution does not amend the Land Use Code, but provides direction to staff for
processing amendments to the Land Use Code; and,
WHEREAS, the City Council finds that this Resolution implements the City’s goals related to
creating a clearer and more predictable land use review process, as articulated in the 2012 Aspen Area
Community Plan; and
WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion
of public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN
AS FOLLOWS:
Section 1: Code Amendment Objective and Direction
City Council herby directs staff to process amendments to the City Land Use Code to clarify which land use
code a project may rely on when part of a multi-step process or when amending a previous approval, by:
• Defining a “major amendment” and “minor amendment” to previously approved projects and
outlining a process for each; and
• Clarifying when and how multi-step land use requests are processed in relation to vesting in a
particular land use code.
Section 2:
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Resolution No. 72, Series 2015
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This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or
proceeding now pending under or by virtue of the resolutions or ordinances repealed or amended as herein
provided, and the same shall be conducted and concluded under such prior resolutions or ordinances.
Section 3:
If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held
invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate,
distinct and independent provision and shall not affect the validity of the remaining portions thereof.
FINALLY, adopted this 13 th day of July, 2015.
_______________________________
Steven Skadron, Mayor
ATTEST: APPROVED AS TO FORM:
_______________________________ ______________________________
Linda Manning, City Clerk James R True, City Attorney
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MEMORANDUM
TO: Mayor and City Council
FROM: Jennifer Phelan, Deputy Planning Director
RE: 620 W. Bleeker, Wheeler/Stallard House - Aspen Historical Society – Conditional
Use, Subdivision, Variance, Transferable Development Rights, 1st Reading of
Ordinance No. 23 (Series of 2015)
MEETING
DATE: July, 2015
Due to the scope of comments received at the June 22 nd first reading, the applicant is requesting the
public hearing to be continued to August 24 th .
RECOMMENDATION: Staff recommends continuation of the public hearing to August 24 th .
PROPOSED MOTION: “I move to continue the Aspen Historical Society application for 620
E. Bleeker to August 24th.”
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MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Jennifer Phelan, Deputy Planning Director
RE: 400 E. Cooper, Golden Horn Building –Easement Request
Resolution No. --- (Series of 2015)
MEETING
DATE: July 27, 2015
APPLICANT/OWNER
Aspen Golden Horn LLC
REPRESENTATIVE:
Charles Cunniffe Architects
LOCATION:
400 E. Cooper Ave., cornet of E. Cooper
Ave. and S. Mill St.
CURRENT ZONING AND USE
Located in the Commercial Core (CC)
zone district and the Commercial Core
historic district.
PROPOSED LAND USE:
The Applicant is requesting to
reconstruct and expand the existing
building. Currently all access into the
building (stairs to the basement and
second story as well as the walkway and
ramp into the commercial space along S.
Mill) are located within the right-of-way.
Applicant proposes to redevelop access
into the building along Mill, with the
circulation improvements to be in the
right-of-way and requests a new,
reconfigured easement of Council.
STAFF RECOMMENDATION:
Staff does not support maintaining
encroachments within the right-of-way
with the extensive remodel and
expansion that is being proposed and
recommends denial of the request.
Buildings should be developed on their
own lot and the use of public property for private
development establishes a significant precedent.
Alternatively, staff suggests an easement requires
significant lease rates to minimize this practice on
future projects – such as tripling the prevailing
downtown retail lease rate.
400 E. Cooper Ave (Golden Horn building)
Vicinity map of the site
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LAND USE REQUESTS AND REVIEW PROCEDURES:
The Applicant has requested to provide updated circulation for the building predominately within
the Mill Street right-of-way as part of the reconstruction and expansion of the property. Several
city departments do not support the use of the right-of-way for this use including the engineering
department. As the engineering department is the department associated with regulating the
right-of-way and does not support the request, City Council is being asked to consider the
requested use of the right-of-way as the final decision making body.
BACKGROUND:
The Golden Horn building was built in approximately 1958. It is located in the Commercial Core
historic district but is not a contributing building within the district. The property is comprised of
one townsite lot and the building’s exterior walls encroach into Cooper Avenue, Mill Street, the
rear alley, as well as the shared property line on the east side of the property. The property
currently contains a number of revocable encroachment licenses allowing the circulation
associated with access into the building, planters, and parts of the building itself to be located
within the Mill Street right-of-way and alley. Generally speaking, the length of encroachments
along Mill Street is approximately 105 feet with a typical depth of 5 feet 8 inches and up to 9 feet
in depth along the accessible route and alley.
The Applicant is proposing an extensive remodel and expansion of the building and has proposed
to maintain circulation and access for the building within the Mill Street right-of-way and alley
inclusive of stairs, a new elevator, and a deck element (Exhibit C).
Figure 1: Survey of the existing building
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Figure 2: Existing ground floor footprint
Figure 3: Proposed ground floor footprint
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EASEMENT REQUEST:
It is at the Council’s sole discretion to grant an easement request. Although revocable
encroachment licenses have been granted in the past, for example the latest was for accessible
access into The Meatball Shack, the current level of investment should also address and
reconcile these encroachment issues.
Figure 4: Images of the encroachments
Circulation for the building should not be provided within the pedestrian mall as it reduces the
public use of the mall, the amenity the mall provides for citizens and visitors, and negatively
impacts maintenance of the mall. Additionally, other public amenities are provided along this
stretch of the mall, including the public bathrooms and play area, further constraining the space.
Other property owners are expected to provide circulation for a building within the boundaries of
property when development occurs. Finally, allowing a private individual to continue to
encroach within the pedestrian mall sets a bad precedent. Private development should be
developed on private property.
As proposed, the draft easement submitted by the applicant allows for the improvements to be
located within the right-of-way with the city conveying a temporary, exclusive easement to
construct, maintain and repair the improvements for a forty year time period The term may be
extended by the city at its sole discretion. The city also has the ability to terminate the easement
if it is deemed necessary in the future.
REFERRAL AGENCY COMMENTS:
Engineering, Sanitation, Parks and Environmental Health have commented on the redevelopment
proposal. Comments associated with the encroachments have been included below.
• Parks has concerns on the elevator and proposed stairs “due to snow removal and impacts
to surrounding trees.”
• Engineering comments include “Regardless of the downsized encroachment, the
Engineering Department does not support the use of the ROW for access to the building.
We do not feel this is an appropriate use of the public area. A remodel of this extent is
required to pull all existing revocable encroachments within the property boundary, with
the exception of the existing walls.
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• Sanitation is concerned with the existing planter and stair in the alley as a sewer main is
located in the alley and will need to be replaced, creating constraints for infrastructure
improvements and maintenance.
RECOMMENDATION: Staff recommends that the request be denied. Besides the level of
investment that is associated with the reconstruction of the building, the use of the pedestrian
mall for a building’s access and circulation impacts maintenance of the mall and its
infrastructure, as well as privatizes the public realm for personal use.
If Council is willing to consider an easement, staff recommends that all of the square footage
associated with the encroachment be rented at a downtown market rate, such as triple the going
rental rate. The resolution has been written in the affirmative and should be modified if denied.
PROPOSED MOTION: “I move to approve the easement request for 400 E. Cooper Avenue.”
CITY MANAGER COMMENTS:_____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
ATTACHMENTS:
EXHIBIT A – Draft Easement
EXHIBIT B – Referral Comments
EXHIBIT C – Elevations and Plans
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RESOLUTION NO. 78
(SERIES OF 2015)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING A PROPOSED
EASEMENT AGREEMENT BETWEEN THE CITY OF ASPEN AND ASPEN GOLDEN
HORN LLC, AUTHORIZING THE CITY MANGER TO EXECUTE A FINAL AGREEMENT
ON BEHALF OF THE CITY FOR CERTAIN BUILING IMPROVEMENTS WITHIN THE
MILL STREET RIGHT OF WAY AND ALLEY ASSOCIATED WITH THE PROPERTY
DESCRIBED AS LOT K, BLOCK 89, CITY AND TOWNSITE OF ASPEN AND UNITS 1, 2, 3
AND 4, GOLDEN HORN BUILDING, A CONDOMINIUM, COMMONLY DESCRIBED AS 400
E. COOPER AVENUE
Parcel No. 2737-182-97-001 through 2737-182-97-004 and 2737-182-97-800
WHEREAS, the Community Development Department received an application from Aspen
Golden Horn, LLC, represented by Charles Cunniffe Architects, requesting redevelopment and
expansion of the Golden Horn building, commonly known as 400 E. Cooper Avenue; and,
WHEREAS, the existing building has certain revocable encroachment licenses for parts of the
building including building walls, stairs, walkways, planters and ramping that sit within the public
right-of way along Cooper Avenue, Mill Street and the alley; and,
WHEREAS, the property owner has requested an easement to allow for the continued use of
the rights-of-way for the existing or reconstructed building walls, planters, stairs, walkways and a new
elevator associated with the reconstruction of the building; and,
WHEREAS , there has been submitted to the City Council a proposed Easement Agreement
between the City of Aspen, Colorado and Aspen Golden Horn LLC, a copy of which is attached hereto
and made part of thereof,
WHEREAS, the Community Development Director has reviewed the application and
recommended denial of these new improvements; and,
WHEREAS, a number of referral agencies within or associated with the city have reviewed the
application and recommended denial of the improvements; and,
WHEREAS, during a regular meeting on July 27, 2015 the City Council considered the
request and approved it by a ___to ___ (__-__) vote, with the findings and conditions listed
hereinafter; and,
NOW, WHEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO :
Section 1:
That the City Council of the City of Aspen hereby approves the entry into an Easement Agreement
between the City of Aspen, State of Colorado and Aspen Golden Horn LLC, a draft of which is
attached hereto and does hereby authorize the City Manager of the City of Aspen to execute a final
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agreement on behalf of the City of Aspen in substantially the form attached hereto, subject to the
approval of the City Manager and City Attorney.
Dated ________________, 2015
_______________________
Steven Skadron, Mayor
I, Linda Manning, 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 June
27, 2015.
_____________________________
Linda Manning, City Clerk
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Exhibit A
RECORDING REQUESTED BY:
WHEN RECORDED RETURN TO:
Chris LaCroix, Esq.
Garfield & Hecht, P.C.
601 E Hyman Avenue
Aspen, Colorado 81611
SPACE ABOVE THIS LINE FOR RECORDER’S USE
EASEMENT AGREEMENT
This Easement Agreement (“Agreement”) entered into this _____ day of _________,
2015, by and between THE CITY OF ASPEN, a Colorado municipal corporation and home rule
city, Grantor (hereinafter the "City" or “Grantor”) and Aspen Golden Horn, LLC, a California
limited liability company (hereinafter “Golden Horn” or “Grantee”), concerns and specifies the
following:
RECITALS
WHEREAS, as part of the incorporation of the City of Aspen, commencing with the
recording of a townsite plat in the Plat of Towns, page 1, at pages 28 and 29, of the real property
records of Gunnison County on or about March 25, 1880, and continuing with the issuance of
deed to the City of Aspen on April 3, 1888, by the Pitkin County Probate Judge, unless such
street or alley has been duly vacated, the City of Aspen is the owner of all streets and alleys
within the City, including the streets, rights-of-way and alley known as Cooper Avenue, Mill
Street and Alley Block 89, none of which have ever been vacated and are presently owned and
controlled by the City of Aspen; and,
WHEREAS, Golden Horn is the owner of certain real property in the City of Aspen
known as the Golden Horn Building (the “Building”) which is legally described as
Condominium Units 1, 2, 3 and 4, Golden Horn Building, a Condominium, according to the Plat
thereof recorded June 13, 1984, in Plat Book 16 at Page 9 and as further defined and described in
the Condominium Declaration for Golden Horn Building recorded February 29, 1984, in Book
462 at Page 107 (the “Property”).
WHEREAS, the Building is governed by the Condominium Declaration for Golden Horn
Building recorded February 29, 1984, in Book 462 at Page 107, but the Association pursuant to
the Declaration has never been formed, and Golden Horn is the sole owner of the entire Building.
WHEREAS, the Building is located on the corner of Cooper Avenue and Mill Street on
the 400 block of E Cooper Avenue in the City of Aspen; and,
WHEREAS, historically, certain encroachments have existed on the Property, including
certain portions of the Building itself. The existing encroachments are outlined and set forth on
Exhibit A hereto. The City of Aspen has granted licenses from time to time for the existing
encroachments which include, but may not be limited to:
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Letter Agreement from the City of Aspen dated September 9, 1975, and recorded
September 3, 1976, in Book 316 at Page 265.
Revocable Encroachment License recorded August 7, 2002, as Reception No.
470726.
WHEREAS, Grantee desires at its own cost and expense to reconfigure entry to the
Building, resulting in the reduction in size of certain existing encroachments and in the re-
construction or modification of encroachments in areas as set forth on Exhibit B attached hereto
and made a part hereof; and
WHEREAS, the City is willing to grant and convey an easement to Grantee for the re-
configuration and construction of the proposed encroachments outlined on Exhibit B hereto
subject to the terms and conditions herein provided.
THEREFORE, IN CONSIDERATION of the promises and agreements set forth below,
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Grant of Easement . The City does hereby grant and convey to Grantee, for the
benefit of the Property temporary, exclusive easement (the “Easements”) for the purposes of
providing Grantee with the right to construct, re-construct, maintain, repair, inspect, preserve,
operate and replace certain improvements (the “Improvements”), the exact location, extent and
dimensions of such Easements for the Improvements are depicted on the Encroachment Plan
attached hereto as Exhibit B, including, but not limited to, and existing planter on the west side
of the building adjoining the alley, a new access stair on the NW corner of the Building, removal
of an existing ramp encroachment and construction of new access stair on the west side of the
Building, construction of a new entry and elevator on the west side of the building, and removal
of an existing planter encroachment on the west side of the building and re-configuration of a
new stair location and entry to the lower level of the Building.
2. Term of the Easement . This is a temporary easement granted for a period of
forty-years following the date of the execution of this Agreement. The Easement may be
extended by the City in its discretion at any time prior to the end of the expiration of the initial
term.
3. Termination . In the event that the City of Aspen in its sole discretion determines
that the City’s property within the Easement is needed for public purposes, the City may
terminate the Easement by a resolution of termination adopted at a regular meeting of the Aspen
City Council. Grantee shall be provided notice not less than thirty days prior to the consideration
of any resolution of termination. If the Easement is terminated pursuant to this section, Grantee
shall have one year from the date of the resolution to vacate the premises and at its sole costs and
expense (i) remove all items constructed in the Easement that could reasonably interfere with the
public purposes for which the property within the Easement is needed; and (ii) restore the
property to the fullest extent reasonably practicable to accommodate the public purposes for
which the property within the Easement is needed. Restoration required pursuant to this Section
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4 shall comply with all City standards applicable at the time of restoration and shall be approved
by the City Engineer.
4. Permits/Construction Details . Grantee at its own cost and expense shall obtain all
permits required for construction or re-construction, maintenance and repair of the Improvements
and construct the Improvements as set forth in this Agreement.
5. As-Built Survey . Grantee shall provide the City with an as-built survey of the
Improvements, as constructed. If in the reasonable opinion of the City, such as-built survey
requires an amendment to the terms of this Agreement or any exhibit attached hereto, the parties
shall prepare a mutually acceptable amendment to this Agreement or exhibit, as the case may be.
6. Protection of Utilities . Grantee at its cost and expense shall coordinate with all
appropriate utility companies to ensure that Grantee’s work does not interfere with any utilities
located within or in proximity of the Easements area. If any utility is required to be installed or
modified in the future, including but not limited to sanitation facilities of the Aspen Consolidated
Sanitation District (ACSD), and such expansion or installation is affected by the existence of the
Improvements, then Grantee agrees that it will pay any incremental costs incurred by the entity
installing or modifying the utility as a result of the existence and location of the Improvements.
Grantee shall remove and replace any and all street paving, sidewalks, and curb and gutter, both
inside the Easement areas and in the rights-of-way adjacent thereto, that become broken,
damaged or unsightly as a result of the activity of Grantee during the course of construction of
the Improvements. In the future, Grantee shall also remove, replace or repair any street paving,
sidewalks, and curb and gutter that become broken or damaged when, in the opinion of the City
Engineer, the damage has been caused by the activity of Grantee within the Easements area. All
repair work shall be accomplished without cost to the City and under the supervision of the City
Engineer
7. Compliance with Laws/Regulatory Requirements . Grantee at its sole expense
shall comply with any and all laws, rules and/or regulatory requirements applicable to Grantee’s
work, including without limitation compliance with the construction management plan approved
by the City.
8. Maintenance and Repair . Grantee shall be fully responsible at its cost and expense
for maintenance, repair and replacement of the Improvements, including without limitation any
other work related to keeping the Improvements and Easements area in good condition and
repair.
9. Access to Easements Premises by City . The City's agents, employees, contractors
and other designated persons may go upon the Easements area set forth above at all reasonable
times with reasonable notice to undertake routine inspection, operation, maintenance or
expansion of any City facilities or utilities in the proximity of the Improvements. In the event the
City plans major repairs or replacement of infrastructure, facilities or utilities within the
proximity of the Easements, it shall provide Grantee with reasonable advance notice of the work
to be undertaken, and the estimated time of completion and endeavor not to disrupt the
operations, use or enjoyment of the Improvements more than reasonably necessary.
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10. Indemnification . Grantee shall be responsible for any and all claims, demands,
actions, losses, liabilities, or expenses of whatever sort, including attorney fees, that are brought
against it by any person or entity arising out of or in connection with Grantee’s construction of
the Improvements and/or use or occupancy of the Easements area, or the use or occupation of the
Easements area by their agents, employees, contractors, invitees or licensees. Grantee and its
officers, directors, members, employees, agents, contractors, representatives, heirs or assigns
may be held jointly and severally liable under any statute, decision, or other law providing for
such joint and several liability for their respective activities on the Property or the Easements, the
obligations of each to respond in damages shall be apportioned, as between the parties in
proportion to the contributions of each as measured by the acts and omissions of each which in
fact caused such legal injury, damage or harm as determined by court judgment or settlement of
claims. Further, Grantee agrees to hold the City harmless from and against all claims, demands,
causes of action, damages, losses, liabilities, costs, and expenses, including but not limited to
attorneys’ fees, suffered or incurred by the City on account of or with respect to property damage
or injury or death to persons caused by Grantee’s construction of the Improvements and/or use or
occupancy of the Easements or Grantee’s agents, consultants, contractors, or subcontractors, on
account of or with respect to their respective acts or omissions on or about the subject property,
including but not limited to their respective professional, consulting, construction, maintenance,
or repair services. If any action or proceeding is brought against the City, its employees, or
agents, by reason of any such claim, Grantee, upon notice from the City, will defend the claim at
Grantee’s expense with counsel reasonably satisfactory to the City.
11. Insurance . Grantee and any contractor(s) retained by Grantee and any
subcontractors performing work with respect to the construction and installation of the
Improvements shall, prior to their respective first entries on or about City’s property, and
thereafter maintain in full force and effect for the duration of their respective periods of work,
policies of liability and property damage insurance in forms and with insurance companies
reasonably satisfactory to the City with limits of not less than $2,000,000 per occurrence and
$5,000,000 in the aggregate for liability and property damage, written on an occurrence basis,
and otherwise reasonably acceptable to the City and naming the City as an additional insured.
Insurance provided by Grantee pursuant to preceding sentence must remain in full force and
effect during the term of the Easements. The City may adjust the amount of required insurance
coverage based on inflation increases from time to time. No more than one adjustment may be
made in any two year period. All of such coverages shall be primary with respect to any policies
of insurance obtained or maintained by the City. Each of such party, Grantee, contractors and
subcontractors shall provide the City with a certified copy of each respective policy or a
certificate evidencing that such insurance is in full force and effect, City as an additional insured
and evidencing that each respective policy shall not be cancelled or amended absent 45 days’
prior written notice to City, prior to Grantee’s and each respective contractor’s and
subcontractor’s first entry on or about City’s Property. Additionally, Grantee and each such
contractor and subcontractor shall, for the duration of its respective period of work, obtain and
maintain in full force and effect worker’s compensation insurance meeting statutory limits and
otherwise complying with Colorado law.
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12. Notices . All written notices required to be given shall be deemed given upon hand
delivery or email to the person or entity to whom directed at its address shown herein, or at such
other address as shall be given by notice pursuant to this paragraph. Copies of such notices shall
be directed to the following addresses:
TO CITY:
City Manager
130 S. Galena St.
Aspen, CO 81612
Fax No. (970) 920-5119
With a copy to:
Aspen City Attorney
130 South Galena Street
Aspen, Colorado 81611
Fax No. (970) 920-5119
TO GRANTEE:
Aspen Golden Horn, LLC
c/o Benjamin Nazarian
9420 Wilshire Blvd., 4 th Floor
Beverly Hills, CA 90212
With a copy to:
Garfield & Hecht, P.C.
601 E Hyman Avenue
Aspen, CO 81611
Attn: Avery S. Nelson, Esq.
Phone: (970) 925-1936 x 222
Fax: (970) 925-3008
E-mail: anelson@garfieldhecht.com
13. Binding Agreement - Recording . This Agreement is binding upon the parties
hereto, their successors and assigns, and any sale of the Property, or any portion thereof shall be
subject to this Agreement. To this end it is agreed and understood that any obligation set forth
herein shall be a continuing obligation of Grantee and any successor homeowner associations
that may be created for the Property. This Agreement shall be recorded with the Pitkin County
Clerk and Recorder, and shall impose an easement and covenants running with the land upon the
Property. Deeds to subsequent owners of the Property shall provide notice of this Agreement and
the obligations contained herein.
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14. Governing Law; Venue; Attorneys' Fees . This Agreement and the rights and
obligations of the parties hereunder shall be governed by and construed in accordance with the
laws of the State of Colorado. Venue for all actions arising under this Agreement shall be Pitkin
County, Colorado. In the event legal remedies must be pursued to resolve any dispute or conflict
regarding the terms of this Agreement or the rights and obligations of the parties hereto, the
substantially prevailing party shall be entitled to recover costs incurred in pursuing such
remedies, including expert witness fees and reasonable attorney fees.
15. Authorization of Signatures . The parties acknowledge and represent to each other
that all procedures necessary to validly contract and execute this Agreement have been
performed and that the persons signing for each party have been duly authorized to do so.
16. Counterparts . This Agreement may be signed using counterpart signature pages,
with the same force and effect as if all parties signed on the same signature page.
17. Vacation and Termination of Easement . In addition to the right to terminate set
forth in paragraph 3, above, this Agreement shall be deemed terminated and vacated if Grantee
does not commence construction of the Improvements within two years of the execution of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the date and year
first above written.
GRANTOR:
THE CITY OF ASPEN, COLORADO
A Municipal Corporation and Home Rule City
By:___________________________ Witnessed:___________________________
Name:
Title:
APPROVED AS TO FORM:
_____________________________
Aspen City Attorney
[Acknowledgements and Additional Signatures on Following Page]
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STATE OF ___________ )
) ss.
COUNTY OF __________ )
SUBSCRIBED AND SWORN TO before me this ___ day of ___________, 2015, by
________________________ (name) as _____________________ (title) of the City of Aspen.
WITNESS my hand and official seal.
My commission expires: ____________
___________________________
Notary Public
GRANTEE:
ASPEN GOLDEN HORN, LLC,
a California limited liability company
By: ____________________________
Name: ____________
Title: _____________
STATE OF __________ )
ss.
COUNTY OF ________ )
SUBSCRIBED AND SWORN TO before me this ___ day of ___________, 2014, by
________________________ (name) as _____________________ (title) of Aspen Golden
Horn, LLC, a California limited liability company.
WITNESS my hand and official seal.
My commission expires: ________________
____________________________
Notary Public
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EXHIBIT A
[Historic, Existing Encroachments]
(to be inserted)
EXHIBIT “B”
[Encroachment Map for Proposed Improvements/Encroachments Easements]
(to be inserted)
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Exhibit B
Development Review Committee
Engineering
Right of Way:
1. The proposal states the ROW encroachments will be downsized. The extent of the
downsizing is not clear on the plan sets nor is it called out in terms of existing and
proposed footprint square footage. Drawings should be to scale and additional
information should be submitted.
2. Regardless of the downsized encroachment, the Engineering Department does not
support the use of the ROW for access to the building. We do not feel this is an
appropriate use of the public area. A remodel of this extent is required to pull all existing
revocable encroachments within the property boundary, with the exception of the existing
walls.
3. The proposed plans and connection to the ROW shall consider future city plans for the
development of the mall area.
Stormwater:
1. All roof drains must be disconnected from the sanitary sewer line.
2. The application does not address stormwater requirements. The project will be required
to treat the WQCV. A greenroof is a viable option.
3. There is concern about additional runoff being directed onto the mall which would
increase icing and drainage issues. This will need to be taken into account during the
design process.
Utilities:
1. The transformer in which the property connects cannot be located within the ROW. The
transformer must be located within a property boundary.
Construction Management:
1. Engineering is concerned about the Construction Impacts of this site. Please submit a
construction management plan prior to Council review. The plan must include a planned
sequence of construction that minimizes construction impacts. The plan shall describe
mitigation for parking, staging/encroachments, and truck traffic.
Transportation Impact Analysis:
1. While improvements can be made to enhance the pedestrian access to the building the
current proposal to use the ROW will not be accepted and therefore this measure cannot
receive credit in the TIA.
2. Provide further information on bus pass purchases. For whom are the passes purchased?
How many will be purchased?
Sanitation
1. Permanent improvements are prohibited in sewer easements or right of ways.
Landscaping plans will require approval by ACSD where soft and hard landscaping may
impact public ROW or easements to be dedicated to the district.
2. Soil Nails are not allowed in the public ROW above ASCD main sewer lines and within 3
feet vertically below an ACSD main sewer line.
P120
X.a
Parks
1. Parks would like to see no further encroachment into the mall for the elevator or the
proposed stairs next to the elevator, due to snow removal and impacts to surrounding
trees.
2. The submitted plans do not show how far out into the Mill Street ROW they propose to
go, nor do they indicate whether or not they will be micro piling or soil nailing out in the
ROW.
Environmental Health
Space Allotment for Trash and Recycling comments
1. The applicant is requesting to share the trash enclosure with the adjacent property. Before
this request can be considered, a site visit of existing trash enclosure is required with
applicant and Environmental Health staff.
2. Whether the trash and recycling space is shared on included within this proposed
building, it must meet the minimum standards set forth in Municipal Code 12.30.030.
Applicant did not specify the uses of the adjacent building, so the exact dimensional
requirements are unknown at this time. Further, there were no specification provided
about the dimensions and access of the current shared enclosure.
3. The applicant is requesting to continue the shared agreement with the adjoining property,
but the agreement is not part of the application. This agreement must meet the standards
set forth in Municipal Code 12.10.030 G.
4. This application is subject to Special Review due to the concerns listed above
(12.10.080). There have been no written explanations of the reasons why the applicant
cannot provide space for their needs of the buildings tenants.
Utilities
The development may require an on-site transformer dependent on what there load calculations
validate. Section 26.412.060 B. refers me to Section 12.10 which only addresses areas for trash
and recycling. The improvement survey shows no existing transformer or easements for such
devices on site. Lacking specific info on Water requirements, and electrical requirements it’s is
difficult to comment much further at this point.
APCHA
The APCHA Board reviewed the application at their regular meeting held July 15, 2015, and
although would prefer on-site mitigation, it is not conducive to have a deed restricted in a mixed
use building. The APCHA would recommend that the use of the Certificates of Affordable
Housing Credit program be utilized to satisfy the mitigation requirement for this renovation and
addition, not a fee-in-lieu.
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CHARLES CUNNIFFE ARCHITECTS COPYRIGHT CHARLES CUNNIFFE ARCHITECTS C610 EAST HYMAN AVE. ASPEN, CO 81611 TEL: 970.925.5590 FAX: 970.920.4557www.cunniffe.com SHEET NO.DRAWING:JOB NO.
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A2.21509PROPOSED MAIN LEVEL FLOOR PLANGOLDEN HORN BUILDING LOTS K AND L, BLOCK 89 400 E COOPER AVENUE ASPEN, COLORADO ISSUE: DATE:
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CHARLES CUNNIFFE ARCHITECTS COPYRIGHT CHARLES CUNNIFFE ARCHITECTS C610 EAST HYMAN AVE. ASPEN, CO 81611 TEL: 970.925.5590 FAX: 970.920.4557www.cunniffe.com SHEET NO.DRAWING:JOB NO.
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