HomeMy WebLinkAboutagenda.council.special.20160906
CITY COUNCIL SPECIAL MEETING
CITY COUNCIL CHAMBERS
4:00 PM
I. City Council Special Meeting -
II. Aspen Country Inn - Resolution amending partnership agreement
III. IGA with Pitkin County - Construction of Sheriff and Police Departments
IV. Council Discussion
V. Pedestrian and Bicycle Master Plan Update
VI. Living Lab/Hallam Street Design Project Update
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MEMORANDUM
TO: Mayor and City Council
FROM: Don Taylor, Director of Finance
THRU: Steve Barwick, City Manager
DATE OF MEMO: September 2, 2016,
MEETING DATE: September 6, 2016
RE: Discussion on the structure of Aspen Country Inn (ACI)
Refinancing
REQUEST OF COUNCIL: This request that Council consider adoption of a resolution
authorizing execution of a Partnership Agreement, a Development Agreement, a Purchase
Option and Right of First Refusal and the Incentive Management Agreement for the purpose of
rehabilitation of the Aspen Country Inn and the refinancing of the project.
PREVIOUS COUNCIL ACTION: City Council agreed to make a loan in the amount of
$1,691,130 in 2000 in order to provide a layer of the financing required for this Low Income
Housing Tax Credit project (ACI). APCHA entered into a partnership agreement with private
equity partners to get tax credits and a permanent loan was obtained to complete the financing.
Interest has not been paid on the City’s note, so the balance owed to the City from ACI is now
approximately $3.34 million. On August 8, 2016 the city council approved the basic structure of
the partnership agreement and the form of the financing. The partnership agreement now needs
to be amended in order to admit the private equity partners and to provide for the terms
necessary for them to purchase the tax credits.
BACKGROUND: The City and APCHA worked together to create the Aspen Country Inn
(ACI) as an affordable housing project in 2000. APCHA created an LLC and partnered with
private equity investors that infused cash into the partnership in exchange for rights to
depreciation, tax credits and profits or losses. The city put the land into the project and took a
promissory note and deed of trust for the value of the land. At the end of the tax credit
compliance period (15 years) APCHA bought out the interest of the private equity investors.
The City and APCHA have been working together to try and refinance the property and re-
syndicate tax credits in order to lower interest costs and finance major repairs that need to
happen at ACI. Some of the repairs were discovered as part of the capital needs assessment that
was performed as part of the financing requirements.
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The cost of these repairs are estimated to be 5.7 million dollars. The largest component of this
cost is replacing the roof which is seriously damaged. There is also radon mitigation, storm
water management, HVAC, some siding replacement and appliance replacement components to
this project. Most of this is required by either HUD or tax credit investors as a condition of their
investment.
DISCUSSION: The City and APCHA will form a new partnership entity. The City will be the
managing general partner with a less than 1% interest. Private equity partners will be given a
99%+ interest in exchange for buying tax credits that the project will be eligible for. This will
raise approximately $5,604,000 toward completion of the project and the cost of putting the tax
credit deal together. Colorado Housing and Finance Authority (CHFA) will issue a tax exempt
bond for the construction financing of the project that will not exceed $7,500,000. The tax
exempt financing component of the initial construction financing makes the project eligible for
Low Income Housing Tax Credits (LIHTC). These funds will be loaned to the new ACI
partnership to accomplish the construction work and to pay off the existing mortgages
The City will buy the Bond issued by CHFA as an investment as part of its investment portfolio.
This will be a private placement by CHFA. This eliminates the need for disclosure counsel and
eliminates marketing costs, saving the project approximately $50,000. This bond will have a less
than one-year term. In addition, the City will earn a loan origination fee and collect interest
The permanent financing will be put in place upon the completion of the project through a HUD
guaranteed loan. While the city tax exempt bond will be paid off it will be necessary for the city
to both increase the amount of the existing $3,350,000 promissory note and take back an
additional promissory note that will be a maximum of $2,570,000 The existing note increase
does not require any cash outlay but is a function of a higher purchase price between the old and
new partnership The new $2.570,000 note will be adjusted at the permanent loan closing to an
amount that is actually required to pay off the construction loan and should be significantly less
than the amount shown. Additional Sources of revenue to the City generated by the project ie;
the developer fee, construction loan origination fee, and operating income during the
construction period, are anticipated to bring the City net cash into the deal down to $927,000 or
less. This financing maximizes opportunity for success for the operation of ACI as a category
two rental property. Tax credits will allow substantial improvement to the property and the
property will be in better shape at the end of the 15-year tax credit amortization period when the
city exercises its option to purchase the property.
FINANCIAL/BUDGET IMPACTS: The net additional investment in the project by the City is
currently estimated to be $927,000. The financing project has been structured so that the rents
from the project can support the ongoing operational costs and the primary debt financing costs.
There may be some payment of interest to the city on its subordinate loan but no real
amortization of the loan. In year 15 of the partnership agreement the City will have the option to
buy out the tax credit partners for essentially their tax costs as there will be no real equity in the
property. Risks for the City would be if the bottom fell out of the category 2 rental market and
the project was no longer able to cash flow. Another risk is if the City/APCHA fails to properly
qualify residents for the project and tax credits were revoked. The City would have to pay the
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investors back for the tax credit money that was invested. APCHA has successfully
administered Low Income Housing Tax Credits for 16 years.
RECOMMENDED ACTION: Staff recommends approval of this financial structure.
ALTERNATIVES: The City could choose not to do this work at this time and not refinance the
property.
PROPOSED MOTION: I move to approve Resolution authorizing issuance of CHFA housing
revenue Bond and execution of related documents.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Agreement of Limited Partnership
Development Agreement
Purchase Option and Right of First Refusal
Incentive Management Agreement
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RESOLUTION #133
(Series of 2016)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN
CONCERNING THE ASPEN COUNTRY INN PROJECT AND
APPROVING AND AUTHORIZING THE EXECUTION OF AN
AMENDED AND RESTATED PARTNERSHIP AGREEMENT AND
RELATED DOCUMENTS
WHEREAS the provision of affordable housing is important to allow people who work in
the City of Aspen (the “City”) and Pitkin County to live near where they work and to be part of
the community; and
WHEREAS, the Aspen Country Inn (the “Project”) is a 40 unit affordable rental project
located in the City; and
WHEREAS, the Project is currently owned by Aspen Country Inn I, L.P. (the “Seller”), of
which the City is currently a limited partner; and
WHEREAS, the City currently holds a promissory note, secured by a deed of trust in the
principal amount of approximately of $1,691,130 owing by the Seller and secured by the Project
(the “Existing Note”);
WHEREAS, in order to obtain financing for the acquisition, rehabilitation and equipping
of the Project, the City has formed and become the general partner in ACI Affordable 1 LLLP, a
Colorado limited liability limited partnership (“ACI”); and
WHEREAS, the Seller intends to sell the Project to ACI, in exchange for a payment of
cash and a promissory note secured by a deed of trust (“Seller Note”), and further desires to
assign the Seller Note to the City in satisfaction of all or part of the obligations of the Seller to
the City, including the Existing Note; and
WHEREAS, the City desires to bring about the renovation of the Project, and to do so in
part by means of financing using low income housing tax credits; and
WHEREAS, the City desires to cause the existing partnership agreement of ACI to be
amended and restated (the “Amended Partnership Agreement”) to admit Boston Capital Rocky
Mountain Affordable Housing Fund, a Limited Partnership (the “Investment Limited Partner”),
as a limited partner in exchange for certain capital contributions, and to admit BCCC, Inc. (the
“SLP”) as the Special Limited Partner in the Partnership, and to admit Aspen/Pitkin County
Housing Authority as the Class B Limited Partner in the Partnership; and
WHEREAS, the City desires to help to finance the renovation of the Project by loaning to
ACI funds in the approximate aggregate amount of $6,019,930 and subordinate the Seller Note to
certain other obligations of ACI; and
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WHEREAS, there are on file with the City Clerk the proposed forms of the following
documents (the “Documents”):
(a) ACI Affordable 1 LLLP Amended and Restated Agreement of Limited
Partnership (the “Amended Partnership Agreement”) admitting the Investment
Limited Partner, the Special Limited Partner and the Class B Limited Partner, and
undertaking certain obligations to complete the financing and renovation of the
Project; and
(b) Development Agreement between ACI and the City;
(c) Purchase Option and Right of First Refusal between ACI, the Investment
Limited Partner, the Class B Limited Partner and the City;
(d) Incentive Management Agreement between ACI and the City;
WHEREAS, the City is willing to approve and authorize the purchase of the Bond and
the execution and delivery of the Documents.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN:
1. The Council hereby determines that the provision of affordable housing such as
the Project and, in connection therewith, the authorization and approval of the City Loan, the
Amended Partnership Agreement and the Ancillary Documents, and the receipt of the Seller
Note, serves an important public purpose.
2. The financing of all or a portion of the costs of the Project through the City Loan,
and undertaking the obligations in the Amended Partnership Agreement, and the receipt and
subordination of the Seller Note, is hereby authorized and approved.
3. The Documents, in substantially the forms on file with the City Clerk, are hereby
approved. The Mayor, the City Manager and the Director of Finance, as required, are hereby
authorized to execute such Documents and the City Clerk or the Deputy City Clerk is hereby
authorized to affix the seal of the City thereto and to attest the same, as required.
4. The officers of the City are hereby authorized, empowered and directed to execute
and deliver all such additional certificates, instruments, agreements and documents, pay all such
fees, charges and expenses and to do all such further acts and things as may be necessary, or in
the reasonable discretion of the person acting, desirable and proper to effect the purposes of this
resolution and to cause compliance by the City with all the terms, covenants and provisions of
the Documents binding upon the City.
5. No provision of this Resolution or of any of the Documents shall be construed or
interpreted (i) to directly or indirectly obligate the City to make any payment in any fiscal year in
excess of amounts appropriated for such fiscal year, (ii) as creating a debt or multiple fiscal year
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direct or indirect debt or other financial obligation whatsoever of the City within the meaning of
the City Charter or Article X, Section 20 of the Colorado Constitution or any other constitutional
or statutory limitation or provision. No provision of this Agreement or of any of the Documents
shall be construed to pledge or to create a lien on any class or source of moneys of the City, nor
shall any provision of this Agreement or of any of the Documents restrict the future issuance of
any obligations of the City, payable from any class or source of moneys of the City.
6. All resolutions, or parts thereof, inconsistent herewith are hereby repealed to the
extent only of the inconsistency.
7. This resolution shall take effect immediately.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the 6th day of September, 2016.
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, September 6, 2016.
_____________________________________
Linda Manning, City Clerk
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PURCHASE OPTION AND
RIGHT OF FIRST REFUSAL AGREEMENT
This PURCHASE OPTION AND RIGHT OF FIRST REFUSAL AGREEMENT (the
“Agreement”) is made as of September 1, 2016, by and between ACI AFFORDABLE 1 LLLP, a
Colorado limited liability limited partnership (the “Partnership”), the CITY OF ASPEN,
COLORADO, a Colorado municipal corporation (“Grantee” or the “General Partner”),
BOSTON CAPITAL ROCKY MOUNTAIN AFFORDABLE HOUSING FUND, A LIMITED
PARTNERSHIP, a Massachusetts limited partnership (the “Investment Limited Partner”), and
BCCC, INC., a Massachusetts corporation (“BCCC” and together with the Investment Limited
Partner, the “Limited Partners”), and is consented to hereinbelow by ASPEN/PITKIN COUNTY
HOUSING AUTHORITY, a Colorado body corporate and politic (“APCHA”).
WHEREAS, the General Partner, the Investment Limited Partner, BCCC and APCHA,
concurrently with the execution and delivery of this Agreement, are entering into that certain
First Amended and Restated Agreement of Limited Partnership dated as of the date hereof (the
“Partnership Agreement”) continuing the Partnership by amending and restating a prior
partnership agreement; and
WHEREAS, Grantee has been instrumental in the development of that certain low-
income housing project located in Aspen, Colorado (the “Apartment Complex”), as described in
the Partnership Agreement, and will continue to provide services to the Partnership in connection
with the continuation of the Partnership for the further development and operation of the
Apartment Complex; and
WHEREAS, the Apartment Complex is or will be subject to a governmental agency
regulatory agreement (the “Regulatory Agreement”) restricting its use to low-income housing
(such use restrictions under the Regulatory Agreement being referred to collectively herein as the
“Use Restrictions”); and
WHEREAS, Grantee, the Investment Limited Partner, BCCC and APCHA desire to
provide for the continuation of the Apartment Complex as low-income housing upon termination
of the Partnership by Grantee purchasing the Apartment Complex at the applicable price
determined under this Agreement and operating the Apartment Complex in accordance with the
Use Restrictions; and
WHEREAS, as a condition precedent to the formation or continuation of the Partnership
pursuant to the Partnership Agreement, Grantee has required that the Partnership shall execute
and deliver this Agreement in order to provide for such low-income housing, and the Investment
Limited Partner and BCCC have agreed and APCHA has consented to this Agreement in order to
induce the General Partner to execute and deliver the Partnership Agreement;
NOW, THEREFORE, in consideration of the execution and delivery of the Partnership
Agreement and the payment by the Grantee to the Partnership of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
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1. Grant of Option. The Limited Partners (as to the option with respect to the LP
Interests, as hereinafter defined) and the Partnership (as to the option with respect to the
Property, as hereinafter defined) hereby grant to the Grantee an option (the “Option”) (A) to
purchase all (but not less than all) of the Interests of the Limited Partners in the Partnership (the
“LP Interests”) for a period of two (2) years following the close of the Compliance Period as
determined under Section 42(i)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”) or (B) to purchase the real estate, fixtures, personal property and reserves comprising
the Project or associated with the physical operation thereof and owned by the Partnership at the
time of purchase (the “Property”) for a period of two (2) years following the close of the
Compliance Period (each, an “Option Period”) on the terms and conditions set forth in this
Agreement and subject to the conditions precedent to the exercise of the Option specified herein.
The Property real estate is legally described in Exhibit A attached hereto and made a part hereof.
2. Grant of Refusal Right. In the event that the Partnership receives a bona fide
third-party offer to purchase the Apartment Complex (other than under the circumstances
described in paragraph 1), which offer the Partnership intends to accept, Grantee shall have a
right of first refusal to purchase the Apartment Complex (the “Refusal Right”) for a period of
two (2) years (the “Refusal Right Period”) following the close of the Compliance Period, on the
terms and conditions set forth in this Agreement and subject to the conditions precedent to
exercise of the Refusal Right specified herein. In addition to all other applicable conditions set
forth in this Agreement, (a) the foregoing grant of the Refusal Right shall be effective only if
Grantee is a qualified nonprofit organization, as defined in Section 42(h)(5)(C) of the Code, or a
government agency, currently and remains such at all times hereafter until the earlier of (i) the
date that the Refusal Right has been exercised and the resulting purchase and sale has been
closed or (ii) the date that the Refusal Right has been assigned to a Permitted Assignee described
in Paragraph 10 hereof, and (b) any assignment of the Refusal Right permitted under this
Agreement and the Refusal Right so assigned shall be effective only if the assignee is at the time
of the assignment and remains at all times thereafter, until the Refusal Right has been exercised
and the resulting purchase and sale has been closed, a Permitted Assignee described in Paragraph
10 hereof meeting the requirements of Section 42(i)(7)(a) of the Code. Prior to accepting any
bona fide offer to purchase the Apartment Complex, the Partnership shall notify Grantee, the
General Partner, the Limited Partners and APCHA of such offer and deliver to each of them a
copy thereof. The Partnership shall not accept any such offer unless and until the Refusal Right
has expired without exercise by Grantee under Paragraph 6 hereof.
3. Purchase Price Under Option.
The purchase price for the Option (the “Option Price”) shall be as follows:
(a) If the Grantee is purchasing the LP Interests, the Option Price for the LP Interests
in the Partnership pursuant to the Option shall be an amount equal to the greater of (i) the
appraised fair market value of the LP Interests as determined in accordance with the procedures
described in Section 3.5(d) of the Partnership Agreement or (ii) the sum of (x) all amounts owed
by the Partnership or the General Partners to the Limited Partners including, without limitation,
any accrued but unpaid Asset Management Fees, any theretofore unpaid Tax Credit adjuster
payments, and any outstanding Voluntary Loans and (y) an amount equal to the sum of all
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federal, state, and local taxes payable by the Limited Partners (or constituent partners of the
Investment Limited Partner as a result of such sale) due upon such sale.
(b) If the Grantee is purchasing the Property, the Option Price for the Property shall
be an amount equal to the greater of (i) the appraised fair market value of the Property, appraised
as low-income housing to the extent continuation of such use is required under the Use
Restrictions, as determined in accordance with the procedures described in Section 3.5(d) of the
Partnership Agreement or (ii) the sum of (x) outstanding principal, accrued interest, any
prepayment penalty and any other amounts then due under all mortgage documents relating to
the Property, whether or not such amounts are due upon sale, and the total amount of all other
indebtedness of the Partnership as of the date of the closing hereunder, (y) all amounts owed by
the Partnership or the General Partners to the Limited Partners including, without limitation, any
accrued but unpaid Asset Management Fees, any theretofore unpaid Tax Credit adjuster
payments, and any outstanding Voluntary Loans, and (z) an amount equal to the sum of all
federal, state, and local taxes payable by the Limited Partners (or constituent partners of the
Investment Limited Partner as a result of such sale) due upon such sale.
4. Purchase Price Under Refusal Right. The purchase price for the Apartment
Complex pursuant to the Refusal Right shall be the amount as determined under Section 3(b(ii)
above. Notwithstanding the foregoing, however, the purchase price for the Refusal Right shall
never be less than the amount of the “minimum purchase price” as defined in Section 42(i)(7)(B)
of the Code plus an amount sufficient to assure receipt by the Investment Limited Partner form
the proceeds of the sale of the Property of an additional amount equal to amounts owed by the
Partnership or the General Partners to the Limited Partners including, without limitation, any
accrued but unpaid Asset Management Fees, any theretofore unpaid Tax Credit adjuster
payments, and any outstanding Voluntary Loans.
5. Conditions Precedent. Notwithstanding anything in this Agreement to the
contrary, the Option and the Refusal Right granted hereunder shall be contingent on the
following:
(a) General Partners. Grantee shall have remained in good standing as a
General Partner of the Partnership without the occurrence of any event described in
Section 4.5(a)(iii) of the Partnership Agreement after giving effect to the curative
provisions applicable thereto; and
(b) Regulatory Agreement. Either (i) the Regulatory Agreement shall have
been entered into and remains in full force and effect, or (ii) if the Regulatory Agreement
is no longer in effect due to reasons other than a default thereunder by the Partnership,
such Use Restrictions shall have remained in effect as to the Apartment Complex by
other means.
If any or all of such conditions precedent have not been met, the Option and the Refusal Right
shall not be exercisable. Upon any of the events terminating the Option or the Refusal Right
under this Paragraph 5, the Option and the Refusal Right shall be void and of no further force
and effect.
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6. Exercise of Option or Refusal Right. The Option and the Refusal Right each may
be exercised by Grantee by (a) giving prior written notice of its intent to exercise the Option or
the Refusal Right to the Partnership and each of its Partners in the manner provided in the
Partnership Agreement and in compliance with the requirements of this Paragraph 6, and (b)
complying with the contract and closing requirements of Paragraph 9 hereof. Any such notice of
intent to exercise the Option shall be given during the period commencing one (1) year prior to
the expiration of the Compliance Period and terminating at the end of the Option Period. Any
such notice of intent to exercise the Refusal Right shall be given within ninety (90) days after
Grantee has received the Partnership’s notice of a bona fide offer pursuant to Paragraph 2 hereof.
In either case, the notice of intent shall specify a closing date within one hundred twenty (120)
days immediately following the date of exercise. If the foregoing requirements (including those
of Paragraph 9 hereof) are not met as and when provided herein, the Option or the Refusal Right,
or both, as applicable, shall expire and be of no further force or affect. Upon notice by Grantee
of its intent to exercise the Option or the Refusal Right, all rights under the other shall be
subordinate to the rights then being so exercised unless and until such exercise is withdrawn or
discontinued, and upon the closing of any sale of the Apartment Complex pursuant to such notice
shall expire and be of no further force or effect, provided that in the event that the Option and the
Refusal Right are hereafter held by different parties by reason of any permitted assignment or
otherwise, Grantee in its assignment or such parties by written agreement may specify any other
order of priority consistent with the other terms and conditions of this Agreement.
7. Determination of Price. Upon notice by Grantee of its intent to exercise the
Option or the Refusal Right, the Partnership and Grantee shall exercise best efforts in good faith
to agree on the purchase price for the Apartment Complex. Any such agreement shall be subject
to the prior written consent of the Limited Partners, which shall not be withheld as to any
purchase price determined properly in accordance with this Agreement. If the parties fail to
agree or the Limited Partners fail to consent, then the purchase price shall be determined by
arbitration. In the event Grantee for any reason withdraws or discontinues its exercise of the
Option or the Refusal Right, it shall pay any and all expenses of accounting, appraisal, and
arbitration incurred in the determination of the purchase price and any expenses incurred in the
preparation of a purchase contract as provided hereinbelow, including without limitation
reasonable legal fees of the Partnership and the Limited Partners in connection with any such
arbitration and contract.
8. Arbitration. In the event the purchase price for the Apartment Complex is to be
determined by arbitration, or in the event of any other dispute hereunder, each of Grantee, the
General Partner, the Limited Partners, and any other Partners of the Partnership who are in
disagreement on the amount of the purchase price shall exercise best efforts in good faith to
agree on a single arbitrator to act hereunder. Such arbitrator shall conduct proceedings in the
geographic area in which the Apartment Complex is located, according to such procedures as the
arbitrator shall designate, provided that they are fair and do not violate the Uniform Arbitration
Act if and as adopted by the state in which the Apartment Complex is located or any similar act
that may apply. In the absence of an agreement by such parties on a single arbitrator or on any
other method of arbitration, such dispute shall be submitted for arbitration in accordance with the
applicable rules of the American Arbitration Association.
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In any event, the arbitrator(s) appointed hereunder shall have all of the jurisdiction and
powers of courts of law and equity in civil matters. In the event any accountant’s or appraiser’s
determination under Paragraph 3 or 4 hereof is in dispute, the arbitrators shall have the right to
appoint an independent accountant or appraiser, as applicable, to assist in rendering a decision on
the purchase price, but the arbitrators shall also consider any such determinations submitted by
any party to the arbitration proceedings. The parties to such arbitration hereby agree to acceptant
decision or award made by the arbitrators in accordance with arbitration proceedings conducted
pursuant hereto, and the same shall be final and binding on such parties. Any such decision or
award may be enforced, and judgment thereon may be entered, by any court of competent
jurisdiction. All fees and expenses of such arbitration proceedings, including both those of the
arbitrator(s) and reasonable attorneys’ fees of counsel for the respective parties to arbitration,
shall be paid by the party or parties against whom the decision or award is rendered or as may
otherwise be determined to be equitable by the arbitrators. In the event any disagreeing party
fails to appoint an arbitrator who is able and willing to serve hereunder within twenty (20) days
after any demand for arbitration by any other party or fails to proceed in good faith with
arbitration proceedings hereunder, the other parties may each at its option take any action
available to them in law or equity in any court of competent jurisdiction.
9. Contract and Closing. Upon determination of the purchase price, the Partnership
and Grantee shall enter into a written contract for the purchase and sale of the Apartment
Complex in accordance with this Agreement and containing such other terms and conditions as
are standard and customary for similar commercial transactions in the geographic area which the
Apartment Complex is located, providing for a closing not later than the date specified in the
Grantee’s notice of intent to exercise the Option or the Refusal Right, as applicable, or thirty (30)
days after the purchase price has been determined whichever is later. In the absence of any such
contract, this Agreement shall be specifically enforceable upon the exercise of the Option or the
Refusal Right, as applicable. The purchase and sale hereunder shall be closed through a deed-
and-money escrow with the title insurer for the Apartment Complex or another mutually
acceptable title company.
10. Assignment. Grantee may assign all or any of its rights under this Agreement to
(a) a qualified nonprofit organization, as defined in Section 42(h)(5)(C) of the Code, (b) a
government agency, or (c) a tenant organization (in cooperative form or otherwise) or resident
management corporation of the Apartment Complex (each a “Permitted Assignee”) that
demonstrates its ability and willingness to maintain the Apartment Complex as low-income
housing in accordance with the Use Restrictions, in any case subject to the prior written consent
of the Limited Partners, and subject in any event to the conditions precedent to the Refusal Right
and the Option set forth herein. Prior to any assignment or proposed assignment of its rights
hereunder, Grantee shall give written notice thereof to the Partnership, the General Partner,
APCHA and the Limited Partners. Upon any permitted assignment hereunder, references in this
Agreement to Grantee shall mean the Permitted Assignee where the context so requires, subject
to all applicable conditions to the effectiveness of the rights granted under this Agreement and so
assigned. No assignment of Grantee’s rights hereunder shall be effective unless and until the
Permitted Assignee enters into a written agreement accepting the assignment and assuming all of
Grantee’s obligations under this Agreement and copies of such written agreement are delivered
to the Partnership, the General Partner, APCHA and the Limited Partners. Except as specifically
permitted herein, Grantee’s rights hereunder shall not be assignable.
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11. Miscellaneous. This Agreement shall be liberally construed in accordance with
the laws of the State of Colorado in order to effectuate the purposes of this Agreement. This
Agreement may be executed in counterparts or counterpart signature pages, which together shall
constitute a single agreement.
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IN WITNESS WHEREOF, the parties have executed this document as of the date first set
forth hereinabove.
PARTNERSHIP:
ACI AFFORDABLE 1 LLLP, a Colorado limited
liability limited partnership, by its general partner,
City of Aspen, Colorado, a Colorado municipal
corporation
By: ____________________
Name:
Title:
GRANTEE:
CITY OF ASPEN, COLORADO, a Colorado
municipal corporation
By: ________________________________
Name:
Title:
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INVESTMENT LIMITED PARTNER:
BOSTON CAPITAL ROCKY MOUNTAIN
AFFORDABLE HOUSING FUND, A LIMITED
PARTNERSHIP, a Massachusetts limited
partnership, by its general partner,
___________________, a Massachusetts limited
liability company, by its manager,
___________________, a Massachusetts
corporation
By: ____________________________
Jeffrey H. Goldstein,
Executive Vice President
SPECIAL LIMITED PARTNER:
BCCC, INC., a Massachusetts corporation
By: __________________________
Jeffrey H. Goldstein,
Executive Vice President
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Acknowledgments
STATE OF COLORADO )
) SS.
COUNTY OF PITKIN )
On September __, 2016, before me, the undersigned, personally appeared
[__________________], personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________
Signature
(notarial seal)
STATE OF COLORADO )
) SS.
COUNTY OF PITKIN )
On September __, 2016, before me, the undersigned, personally appeared
[__________________], personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________
Signature
(notarial seal)
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#47313394_v6
Acknowledgments
STATE OF ______________ )
) SS.
COUNTY OF __________________)
On ________________, 20__, before me, the undersigned, personally appeared
[_________________], personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________
Signature
(notarial seal)
Acknowledgments
STATE OF ______________ )
) SS.
COUNTY OF __________________)
On ________________, 20__, before me, the undersigned, personally appeared
[_________________], personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________
Signature
(notarial seal)
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#47313394_v6
The undersigned hereby consents to the foregoing Agreement as of the date first set forth
hereinabove.
APCHA:
ASPEN/PITKIN COUNTY HOUSING
AUTHORITY, a Colorado body corporate and
politic
By: _________________________________
Name:
Title:
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#47313394_v6
COMMONWEALTH OF MASSACHUSETTS )
) SS.
COUNTY OF SUFFOLK )
On ________________, 20__, before me, the undersigned, personally appeared [BCP
signatory], personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________
Signature
(notarial seal)
P18
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#47313394_v6
EXHIBIT A
LEGAL DESCRIPTION OF
PROJECT REAL ESTATE
A parcel of land situated in Section 11, Township 10 South, Range 85 West of the 6th Principal
Meridian; said parcel is also situated within Golf Course Parcel "B" of the Maroon Creek Club
Subdivision and PUD, recorded in Plat Book 33 at Page 4, Pitkin County, Colorado being more
particularly described as follows:
Beginning at a point on the northerly boundary of said Golf Course Parcel "B", also being the
southerly right-of-way of Colorado State Highway No. 82 from which the West 1/4 corner of Section
11 bears S 38 Degrees 21'57" W 2845.72 feet;
thence leaving said highway right-of-way line S 30 Degrees 04'07" W 257.51 feet;
thence S 27 Degrees 20'18" E 44.58 feet;
thence South 60 Degrees 43'07" E 166.50 feet;
thence S 29 Degrees 03'53" W 127.37 feet;
thence S 61 Degrees 28'57" E 156.10 feet;
thence N 29 Degrees 26'24" E 138.29 feet;
thence S 60 Degrees 38'32" E 41.08 feet;
thence N 30 Degrees 06'33" E 269.67 feet to a point on the southerly right-of-way of Colorado
Highway No. 82, also being the northwesterly corner of the Pomegranate Parcel;
thence along said highway right-of-way line N 60 Degrees 48'00" W 402.01 feet to the point of
beginning.
County of Pitkin, State of Colorado
Also described according to survey by Sopris Engineering-LLC dated April 28, 2016 as:
A parcel of land situated in Section 11, Township 10 South, Range 85 West of the 6th Principal
Meridian; said parcel is also situated within Golf Course Parcel “B” of the Maroon Creek Club
Subdivision and PUD, recorded in Plat Book 33 at Page 4, Pitkin County, Colorado. All bearings
contained herein being relative to the City of Aspen’s bearing base as shown on the 2009 Marcin
Engineering Control map, yielding a bearing of N00°17’47”E between the W¼ Corner of Section 11
and the NW Corner of Section 11, being a found U.S. GLO Brass Cap, dated 1913 and a found 3¼”
Alum. Monument, L.S. 15710, respectively. Said parcel of land being more particularly described as
follows:
Beginning at a point on the northerly boundary of said Golf Course Parcel “B”, also being on the
southerly right-of-way line of Colorado State Highway No. 82; whence the W¼ Corner of said
Section 11 bears S39°12’39”W, a distance of 2845.70 feet; thence leaving said highway right-of-way
line S30°54’18”W, a distance of 257.51 feet; thence S26°30’07”E, a distance of 44.58 feet; thence
S59°52’56”E, a distance of 166.50 feet; thence S29°54’04”W, a distance of 127.37 feet; thence
S60°38’46”E, a distance of 156.10 feet; thence N30°16’36”E, a distance of 138.29 feet; thence
S59°48’21”E, a distance of 40.98 feet to a point on the common boundary line with the Pomegranate
Inn parcel as shown on the plat of said Golf Course Parcel “B”; thence along said common boundary
line N30°56’44”E, a distance of 269.97 feet to a point on the said southerly right-of-way line of
Colorado State Highway No. 82; thence leaving said common boundary line and along said southerly
highway right-of-way line N59°57’49”W, a distance of 402.01 feet to the point of beginning.
County of Pitkin, State of Colorado
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H&K DRAFT 09/01/16
137812.4
ACI AFFORDABLE 1 LLLP
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
Dated as of September 1, 2016
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137812.4
ACI AFFORDABLE 1 LLLP
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
Preliminary Statement
ACI Affordable 1 LLLP (the “Partnership”) was formed as a Colorado limited partnership
pursuant to an Agreement of Limited Partnership dated June 30, 2016 (the “Original Agreement”)
by and between the CITY OF ASPEN, COLORADO, a municipal corporation of the State of
Colorado (the “City”), ASPEN/PITKIN COUNTY HOUSING AUTHORITY, a Colorado body
corporate and politic (the “Housing Authority”), and a Certificate of Limited Partnership ( the
Certificate”) filed in the Filing Office on February 25, 2016.
The parties desire to amend and restate the Original Agreement to (i) designate the Housing
Authority as the Class B Limited Partner, (ii) designate the City as the Managing General Partner,
iii) provide for the admission of BOSTON CAPITAL ROCKY MOUNTAIN AFFORDABLE
HOUSING FUND, A LIMITED PARTNERSHIP, a Massachusetts limited partnership
BCRMAHF”), as the Investment Limited Partner, (iv) provide for the admission of BCCC, INC.,
a Massachusetts corporation (“BCCC”) as the Special Limited Partner, and (v) more fully set forth
the rights and obligations of the Partners.
In consideration of the mutual agreements set forth herein, it is agreed and certified, and
the Original Agreement is hereby amended and restated in its entirety as follows:
ARTICLE I
Defined Terms
The defined terms used in the Agreement shall have the meanings specified below:
Act” means the Revised Uniform Limited Partnership Act as in effect in the State.
Actual Credit” means, with respect to a particular Fiscal Year, the total amount of Tax
Credit properly allocable by the Partnership to the Investment Limited Partner for such Fiscal Year.
The Actual Credit shall be retroactively revised if the amount of Tax Credit properly allocable to
the Investment Limited Partner is revised as the result of an audit or is recaptured.
Adjusted Capital Account Deficit” means, with respect to any Partner, the deficit balance,
if any, in such Partner’s Capital Account as of the end of the relevant Fiscal Year, after giving
effect to the following adjustments:
i) Credit to such Capital Account any amounts which such Partner is obligated
to restore pursuant to any provisions of this Agreement or is deemed to be obligated to
restore pursuant to the penultimate sentences of Treasury Regulations Sections 1.704-
2(g)(1) and 1.704-2(i)(5), respectively; and
ii) Debit to such Capital Account the items described in Sections 1.704-
1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the Treasury
Regulations.
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The foregoing definition of Adjusted Capital Account Deficit and the application of such term in
the manner provided in Section 10.4(b)(x) is intended to comply with the provisions of Section
1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistently therewith.
Admission Date” means the first date on which all parties hereto shall have executed this
Agreement.
Adverse Consequences” means all actions, suits, proceedings, hearings, investigations,
charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages,
dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, taxes,
liens, losses, expenses and fees, including court costs and reasonable attorneys’ fees and expenses.
Affiliate” means as to a specified Person, (i) such Person; (ii) each member of the
Immediate Family of such Person; (iii) each successor or assignee of any Person referred to in the
preceding clauses (i) or (ii); (iv) each trustee of a trust for the benefit of any Person referred to in
the preceding clauses (i) or (ii); or (v) any other Person (a) who directly or indirectly controls, is
controlled by, or is under common control with such Person, (b) who is an officer of, director of,
partner in or trustee of, or serves in a similar capacity with respect to, such Person or of which
such Person is an officer, director, partner or trustee, or with respect to which such Person serves
in a similar capacity, (c) who, directly or indirectly, is the beneficial owner of ten percent (10%)
or more of any class of equity securities of such Person or of which such Person is directly or
indirectly the owner of ten percent (10%) or more of any class of equity securities, (d) who is an
officer, director, general partner, trustee or holder of ten percent (10%) or more of the voting
securities or beneficial interests of any Person referred to in the foregoing clauses (v) (b) or (v) (c),
or (e) who, whatever such Person’s title, performs functions for such Person or any Affiliate of
such Person similar to a Chairman or member of the Board of Directors, or executive officer such
as the President, Executive Vice President or Senior Vice President, Corporate Secretary, or
Treasurer, or any Person holding a ten percent (10%) or more equity interest in such Person, or
any Person having the power to direct or cause the direction of such Person whether through the
ownership of voting securities, by contract or otherwise. An Affiliate of any Investment Limited
Partner or of any Investment General Partner does not include an employee of a Person or a Person
who is a partner in a Partnership or joint venture with any Investment Limited Partner or any other
Affiliate of any Investment Limited Partner if such Person is not otherwise an Affiliate of any
Investment Limited Partner or any Investment General Partner. For purposes of this definition,
the term Affiliate shall not be deemed to include any law firm (or member or associate or employee
thereof) providing legal services to any Investment Limited Partner, any Investment General
Partner, the General Partner, the Class B Limited Partner or any Affiliate of any of them.
AFR” means the long-term “applicable federal rate” as defined and determined in the
manner set forth in Section 1274 of the Code.
After-Tax Basis” means with respect to any payment to be received by a Person (or, in
the case of a pass-through entity, the partners or members of such Person), the amount of such
payment supplemented by a further payment or payments so that, after deducting from such
payments the amount of all Taxes (net of any current credits, deductions or other tax benefits
arising from the payment by such Person (or its partners or members) of any amount, including
Taxes, for which the payment to be received is made) imposed currently on such Person by the
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Internal Revenue Service or any other taxing authority with respect to such payments, the balance
of such payments shall be equal to the original payment received. For the purposes of this
definition, and for purposes of any payment to be made to a Person (or its partners or members)
on an After-Tax Basis, it shall be assumed that federal, state and local taxes are payable at the
highest combined marginal federal and Colorado state statutory income tax rate (taking into
account the deductibility of state income taxes for federal income tax purposes) applicable to
corporations from time to time.
Agency” means the Credit Agency or any other Governmental Authority with jurisdiction
over the Apartment Complex, or the business and operations of the Partnership.
Agreed-Upon Set-Aside” means the set aside test agreed upon by the Partnership whereby
fifteen percent (15%), or six (6) of the units in the Apartment Complex must be occupied by
individuals with incomes equal to 40% or less of area median income, as adjusted for family size
and eighty-five percent (85%), or thirty-four (34) of the units in the Apartment Complex must be
occupied by individuals with incomes equal to 50% or less of area median income, as adjusted for
family size, or such other set aside test agreed upon by the Partnership with the approval of the
Special Limited Partner, the Lender and the Agency.
Agreement” means this First Amended and Restated Agreement of Limited Partnership,
including Schedule A, as amended from time to time.
Allocation Regulations” means the Treasury Regulations issued under Sections 704(b)
and 752 of the Code, as the same may be modified or amended from time to time. In the event
that the Allocation Regulations are revised or amended subsequent to the date of this Agreement,
references herein to sections or paragraphs of the Allocation Regulations shall be deemed to be
references to the applicable sections or paragraphs of the Allocation Regulations as then in effect.
Apartment Complex” means the real property located in Aspen, Aspen County, Colorado,
as more fully described in Exhibit A attached hereto, together with (i) all buildings and other
improvements constructed or to be constructed thereon and (ii) all furnishings, equipment and
personal property located thereon or otherwise covered by the Mortgages.
Applicable Percentage” has the meaning set forth in Section 42(b) of the Code.
Applied Amounts” shall have the meaning set forth in Section 6.10.
Asset Management Fee” means the fee payable to BCRMAHF or an Affiliate thereof
pursuant to the provisions of Section 6.12(b).
Assignee” shall have the meaning set forth in Section 4.1(c).
Auditors” means [McMahon & Associates, L.L.C. of Avon, Colorado], or such other firm
of independent certified public accountants, which accountants must be registered with the Public
Company Accounting Oversight Board, as may be engaged by the General Partner with the
Consent of the Special Limited Partner for the purposes of preparing the Partnership’s income tax
returns, auditing the books and records of the Partnership and certifying financial reports of the
Partnership.
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BCCC” means BCCC, Inc., a Massachusetts corporation, and its successors and assigns.
BCRMAHF” means Boston Capital Rocky Mountain Affordable Housing Fund, A
Limited Partnership, a Massachusetts limited partnership, and its successors and assigns.
Best Knowledge” shall mean and include, in the case of a specified Person, (i) actual
knowledge and (ii) that knowledge which a prudent businessperson (including, in the case of an
Entity, the general or managing partners, officers, directors and key employees of such Entity)
should have obtained in the management of his or her business affairs after making due inquiry
and exercising due diligence with respect thereto. In connection therewith, the knowledge (both
actual and constructive) of any general or managing partner, director or executive officer of an
Entity shall be deemed to be the knowledge of the Entity.
Bond Documents” means the Bond Purchase Agreement, the Bonds, and all other
documents and instruments executed and delivered in connection with the issuance and sale of the
Bonds.
Bond Lender” means the City.
Bond Loan” means the construction-period loan in the principal amount of up to
7,500,000 made or to be made by the Bond Lender to the Issuer, and by the Issuer to the
Partnership, pursuant to the Bond Loan Documents. The Bond Loan has a term of 18 months and
bears interest at the rate of 2.67% per annum. Monthly payments of interest only will be made
during the term of the Bond Loan. Upon maturity of the Bond Loan, all outstanding principal and
accrued but unpaid interest (if any) is unconditionally due and payable in full by the Partnership.
Bond Loan Documents” means the Bond Loan Mortgage, the Bond Loan Note, the Bond
Regulatory Agreement, the Bond Purchase Agreement, and all other documents evidencing and
securing the Bond Loan or otherwise entered into connection therewith.
Bond Loan Mortgage” means the deed of trust recorded as a first-priority lien against the
Apartment Complex as security for the obligations of the Partnership under the Bond Loan
Documents.
Bond Loan Note” means the promissory note in the original principal amount of up to
7,500,000 executed by the Partnership in favor of the Issuer and assigned to the Bond Lender as
evidence of the Partnership’s obligations under the Bond Loan Documents.
Bond Purchase Agreement” means that certain Financing Agreement by and between the
Bond Lender, the Partnership and the Issuer in connection with the issuance and sale of the Bonds.
Bond Regulatory Agreement” means that certain Regulatory Agreement and Declaration
of Restrictive Covenants by and between the Issuer and the Partnership governing the affordability
restrictions applicable to the Apartment Complex in connection with the issuance and sale of the
Bonds.
Bonds” means that certain Multifamily Housing Revenue Bond (Aspen Country Inn
Project) Series 2016, issued by the Issuer to the Bond Lender. The interest on the Bonds qualifies
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for an exemption from federal income tax under Section 103 and 142 of the Code and is within the
State’s volume cap as provided in Section 146 of the Code.
Capital Account” has the meaning set forth in Section 4.1(b).
Capital Contribution” means the total value of cash or property contributed and agreed to
be contributed to the Partnership by each Partner, as set forth in Schedule A. Any reference in this
Agreement to the Capital Contribution of a then Partner shall include a Capital Contribution
previously made by any prior Partner for the Interest of such then Partner.
Capital Proceeds” means the proceeds of a Capital Transaction less (a) all reasonable costs
and expenses incurred by the Partnership in connection with the applicable Capital Transaction
giving rise to such proceeds, (b) all principal and interest payments and other sums paid on or with
respect to any indebtedness of the Partnership, required to be paid in connection with such Capital
Transaction (but not including any Subordinated Loans, Voluntary Loans, unpaid Development
Fee or amounts under a Deferred Development Fee Note and other fees payable to the Partners),
and (c) any Operating Expenses then due and payable and for which there are insufficient Cash
Receipts to pay. Capital Proceeds shall include all principal and interest payments with respect to
any note or other obligation received by the Partnership in connection with the applicable Capital
Transaction.
Capital Transaction” means a refinancing of any Partnership indebtedness or a sale,
exchange, eminent domain taking, damage or destruction (whether insured or uninsured), insured
title defect or other disposition of all or any portion of the Apartment Complex (other than an event
generating proceeds of any business or rental interruption insurance), but excluding the payment
of Capital Contributions.
Cash Available for Debt Service Requirements” for any period, means the excess of (i) all
cash actually received by the Partnership on a cash basis from normal operations during such
period (but not including public subsidy payments in excess of Section 42 rents), but specifically
excluding the proceeds of insurance (other than business or rental interruption insurance), loans,
Capital Transactions or Capital Contributions over (ii) the greater of (x) all cash requirements of
the Partnership properly allocable to such period of time on an accrual basis (not including
expenses paid from reserves, distributions to Partners out of Cash Flow of the Partnership or fees
payable from Cash Flow) and, on an annualized basis, all projected expenditures, including those
of a seasonal nature, which might reasonably be expected to be incurred on an unequal basis during
a full annual period of operation as determined by the Auditors but specifically excluding Debt
Service Requirements or (y) the Investment Limited Partner’s underwriting expenses, as shown
on Schedule B attached hereto and increased by 3% per annum (or any portion thereof) from and
after the Admission Date. For purposes of this definition, (A) cash requirements of the Partnership
shall include to the extent not otherwise covered above, required deposits to reserves for the
applicable period (including, without limitation, funding of the Replacement Reserve), insurance,
utilities, fees not payable pursuant to Section 10.2 hereof, normal repairs, real estate taxes at fully
assessed levels assuming a fully improved property (except to the extent an exemption is available)
and necessary capital improvements and (B) if free rent or other rental concessions shall have been
granted to tenants, the calculation of rental revenues under clause (i) of the preceding sentence
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shall be adjusted so that the effect of such concessions is amortized equally over the term of all
leases (excluding renewal periods) to which it applies.
Cash Expenditures” means all disbursements of cash during a specified Fiscal Year (other
than distributions to Partners), including, without limitation, payment of operating expenses,
payment of principal and interest on any Partnership indebtedness (other than payments of
principal and interest on any Subordinated Loans, Voluntary Loans or any Mortgage Loans made
to the Partnership the debt service on which is payable solely from Cash Flow), the cost of repairs
to the Apartment Complex, amounts allocated to reserves by the General Partner or otherwise set
aside in the discretion of the General Partner for anticipated expenses and expenses incurred but
not yet paid, and the payment of any fees other than the Asset Management Fee, the Partnership
Management Fee, the Incentive Management Fee and the Development Fee. In addition, except
for a net increase resulting from interest earnings, and without duplication, the net increase during
such Fiscal Year in any escrow account or reserve maintained by or for the Partnership shall be
considered a Cash Expenditure during such Fiscal Year. The term Cash Expenditures shall not
include Development Costs. Cash Expenditures payable to Partners or Affiliates of Partners shall
be paid after Cash Expenditures payable to third parties.
Cash Flow” means the excess of Cash Receipts over Cash Expenditures. Cash Flow shall
be determined separately for each Fiscal Year or portion thereof.
Cash Receipts” means all cash receipts of the Partnership from whatever source derived
other than from a Capital Transaction, including, without limitation, rental revenues and
government subsidy payments. In addition, the net reduction in any Fiscal Year in the amounts of
any escrow account or reserve maintained by or for the Partnership (including, without limitation,
the Operating Reserve and the Replacement Reserve) shall be considered a cash receipt of the
Partnership for such Fiscal Year. Notwithstanding the foregoing, at the election of the General
Partner, Cash Receipts received near the end of a Fiscal Year and intended for use in meeting the
Partnership’s obligations (including the cost of acquiring assets or paying debts or expenses) in
the subsequent Fiscal Year shall not be deemed to be received until such following Fiscal Year.
Certificate” shall have the meaning set forth in the Preliminary Statement.
Change in Law” means an amendment to the Code or the Treasury Regulations
promulgated thereunder that is applicable to the Apartment Complex and provides for the
reduction or elimination of Tax Credits for qualified low-income housing projects (as defined in
Section 42(g)(1) of the Code) or substantially changes the requirements for qualifying for Tax
Credits in a manner that cannot reasonably be satisfied by the Partnership.
CHFA” means the Credit Agency.
CHFA Commitment” means that certain Loan Commitment dated August 8, 2016 from
CHFA with respect to the CHFA Loan.
CHFA Loan” means the permanent loan to be provided by CHFA to the Partnership
pursuant to the CHFA Commitment and the CHFA Loan Documents in accordance with the
Permanent Loan Conditions.
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CHFA Loan Agreement” means the loan agreement in connection with the CHFA Loan
to be entered into between CHFA and the Partnership, as may be amended.
CHFA Loan Documents” means the CHFA Loan Agreement, the CHFA Loan Note, the
CHFA Loan Mortgage and all other documents to be executed by the Partnership in con nection
with the CHFA Loan upon the Consent of the Special Limited Partner.
CHFA Loan Mortgage” means the Mortgage securing the Partnership’s obligations under
the CHFA Loan Note.
CHFA Loan Note” means the promissory note to be executed by the Partnership to
evidence its obligations with respect to the CHFA Loan, which loan will be secured by the CHFA
Loan Mortgage.
City” means the City of Aspen, Colorado, a municipal corporation of the State of
Colorado.
City Loan” means the loan in the aggregate amount of up to $2,583,000 to be provided
by the City to the Partnership pursuant to the terms of the City Loan Documents. The principal
amount of the City Loan shall be determined at the time of Permanent Mortgage Commencement,
but shall not exceed $2,583,000.
City Loan Agreement” means the loan agreement in connection with the City Loan to be
entered into between the City and the Partnership, as may be amended.
City Loan Documents” means the City Loan Agreement, the City Loan Note, the City
Loan Mortgage and all other documents to be executed by the Partnership in connection with the
City Loan upon the Consent of the Special Limited Partner.
City Loan Mortgage” means the Mortgage securing the Partnership’s obligations under
the City Loan Note.
City Loan Note” means the promissory note to be executed by the Partnership to evidence
its obligations with respect to the City Loan, which loan is secured by the City Loan Mortgage.
City Obligation Capped Amount” shall have the meaning set forth in Section 14.1.
Class B Limited Partner” means the Housing Authority.
Class Contribution” means the aggregate Capital Contributions of all members of a
particular class of Partners (i.e., the General Partner, the Class B Limited Partner, the Investment
Limited Partner, the Special Limited Partner or any Substituted Limited Partner).
Code” means the Internal Revenue Code of 1986, as amended from time to time, and the
regulations (permanent and temporary) issued thereunder. References herein to any Code section
shall include any successor provisions.
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Commencement Date” means the first day of the month in which the Admission Date
occurs.
Competitive Real Estate Commission” means that real estate or brokerage commission
paid for the purchase or sale of the Apartment Complex or other Partnership property which is
reasonable, customary and competitive in light of the size, type and location of the Apartment
Complex or other property.
Completion Date” means the later of: (i) the date the Investment Limited Partner shall
have received copies of all requisite certificates or permits (including final inspection approvals)
permitting occupancy of 100% of the apartments units in the Apartment Complex as issued by
each agency having jurisdiction; provided, however, that if such certificates or permits are of a
temporary nature, the Completion Date shall not be deemed to have occurred unless the General
Partner certifies to the Investment Limited Partner that any work remaining to be completed is for
so-called “punch list items” and the General Partner knows of no reason why permanent
certificates of occupancy will not be issued upon completion of such “punch list items”; (ii) the
date as of which the Inspecting Consultant certifies that the work to be performed by the Contractor
under the Construction Contract is substantially complete, which certification shall be made on
AIA Form G704 or other form reasonably acceptable to the Special Limited Partner; (iii) the date
the Investment Limited Partner shall have received Estoppel Letters and a Contractor Pay-Off
letter and lien waivers in form acceptable to the Special Limited Partner; and (iv) the General
Partner has caused the Partnership toinstall in each building in the Apartment Complex, by a radon
mitigation contractor licensed by the Colorado Department of Environmental Protection, an active
radon mitigation system meeting the guidelines for radon prevention and/or mitigation of the
Environmental Protection Agency’s (the “EPA”) as approved by the Special Limited Partner, in
its reasonable discretion. Any representation by the General Partner under this Agreement that the
Completion Date has occurred shall be subject to confirmation by the Special Limited Partner
pursuant to a physical inspection of the Apartment Complex; provided, however, that in the event
that the Special Limited Partner does not make such physical inspection of the Apartment Complex
within ten (10) business days after having received a written representation of the General Partner
that the Completion Date has occurred, then the Special Limited Partner will be deemed to have
waived the physical inspection requirement.
Compliance Period” means the fifteen (15)-year period commencing with the first year of
the Credit Period.
Consent of the Investment Limited Partner” means the prior written consent or approval
of the Investment Limited Partner which, unless otherwise specifically provided herein, may be
given or withheld in its sole discretion. The Consent of the Investment Limited Partner shall be
exercised by and through the Investment General Partner, acting in the name and on behalf of the
Investment Limited Partner.
Consent of the Special Limited Partner” means the prior written consent or approval of
the Special Limited Partner which, unless otherwise specifically provided herein, may be given or
withheld in its sole discretion.
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Construction Contract” means the construction contract dated as of
2016, by and between the Contractor and the Partnership, as amended.
Construction Permitting Date” means the first date upon which the Partnership shall have
received the Requisite Approvals for the commencement of the rehabilitation and operation of the
Apartment Complex in accordance with the Plans and Specifications therefor.
Consumer Price Index” means the Consumer Price Index for All Urban Consumers, All
Cities, for All Items (base 1982-84 = 100) published by the United States Bureau of Labor
Statistics. In the event such index is not in existence when any determination relying on such
index under this Agreement is to be made, the most comparable governmental index published in
lieu thereof shall be substituted therefor.
Contractor” means PNCI Construction, Inc., a _____________ ___________, and its
successors.
Contractor Pay-Off Letter” means a letter in form and substance reasonably satisfactory
to the Special Limited Partner delivered by the Contractor to the Partnership which certifies that
i) all amounts due to the Contractor from the Partnership have been paid, (ii) the Partnership is
not in default under the Construction Contract and (iii) the Contractor has paid in full each
materialman and subcontractor who performed work on the Apartment Complex.
Cost Certification” means the date upon which each Limited Partner shall have received
the written certification of the Auditors, in a form and in substance satisfactory to the Special
Limited Partner, as to the itemized amounts of the construction and development costs of the
Apartment Complex and the Actual Credit pertaining to each building in the Apartment Complex.
Credit Agency” means the Colorado Housing and Finance Authority, and its successors.
Credit Approval” means the letter(s) issued by the Credit Agency and the Issuer pursuant
to Section 42(m)(1)(D) and 42(m)(2)(D) of the Code, respectively, preliminarily approving Tax
Credits with respect to the Apartment Complex in an amount equal to $523,862 per annum. The
Credit Approval includes an initial determination by the Credit Agency (in its capacity as Credit
Agency and Issuer) that the Project satisfies the requirements of the State’s qualified allocation
plan and is not more than necessary for the financial feasibility of the Project and its viability as a
qualified low-income housing project pursuant to Section 42(m)(1)(D) and 42(m)(2)(D) of the
Code.
Credit Period” has the meaning set forth in Section 42(f)(1) of the Code and shall also
include the first year after the end of the period described in Section 42(f)(1) of the Code with
respect to Tax Credits that are available in such year pursuant to Section 42(f)(2)(B) of the Code.
Debt Service Coverage Ratio” means, for any period with each month considered
individually, a fraction, the numerator of which is the Cash Available for Debt Service
Requirements with respect to such period and the denominator of which is the Debt Service
Requirements for such period. The achievement by the Partnership of a specified Debt Service
Coverage Ratio shall be confirmed by the Auditors and shall be subject to the approval of the
Special Limited Partner, which shall not be unreasonably withheld, provided, however, that no
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objection by the Special Limited Partner to the determination of the Auditors shall be valid unless
the General Partner is notified of such objection, and the specific reasons therefor, within seven
7) business days following the receipt by the Special Limited Partner of the Auditor’s
determination letter and in the event that the Special Limited Partner does not so notify the General
Partner within such seven (7) business day period, the Special Limited Partner will be deemed to
have waived its right to object to such determination; provided, however, such deemed waiver
shall not be presumed unless the General Partner shall have first sent a second notice to the Special
Limited Partner or otherwise confirmed that the first notice was timely received by the Special
Limited Partner.
Debt Service Requirements” means for any period, all debt service, reserve, mortgage
insurance premium, tax and insurance escrows and/or other cash requirements imposed with
respect to the Mortgage or any other indebtedness (except for the Subordinated Loans, any
Mortgage Loans made to the Partnership the debt service on which is payable solely from Cash
Flow and Voluntary Loans) properly allocable to such period of time on an annualized accrual
basis as determined by the Auditors. To the extent the relevant period includes any period prior
to Permanent Mortgage Commencement, Debt Service Requirements for such period shall be
computed based upon the assumption that Permanent Mortgage Commencement had occurred
prior to the beginning of such period.
Deferred Development Fee Note” shall have the meaning set forth in the Development
Agreement.
Deficit Restoration Obligation” shall have the meaning set forth in Section 10.3(c).
Defined Mortgagee” shall have the meaning set forth in Section 3.6.
Designated Net Worth Requirements” means as of the date of determination, such
standards or criteria (relating to net worth or other characteristics) as may be approved by the
Special Limited Partner, provided, however, that the conditions of this definition shall be deemed
to be fully satisfied if the General Partner maintains at all times a net worth of not less than
1,000,000.
Developer” means the City, and its successors.
Development Agreement” means the Development Agreement, dated as of September 1,
2016, by and between the Developer and the Partnership.
Development Costs” means any and all costs and expenses necessary to (i) cause the
construction of the Apartment Complex to be completed, in a good and workmanlike manner, free
and clear of all mechanics’, materialmen’s or similar liens, in accordance with the Plans and
Specifications, (ii) equip the Apartment Complex with all necessary and appropriate fixtures,
equipment and articles of personal property (including, without limitation, refrigerators and
ranges), (iii) obtain all required certificates of occupancy for the apartment units and other space
in the Apartment Complex, (iv) pay the Development Fee (other than the portion thereof evidenced
by the Deferred Development Fee Note, if any), (v) finance the construction of the Apartment
Complex and achieve Rental Achievement in accordance with the provisions of the Project
Documents, (vi) discharge all Partnership liabilities and obligations arising out of any casualty
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generating insurance proceeds for the Partnership prior to Rental Achievement, (vii) fund any
Partnership reserves required hereunder or under any of the Project Documents, (viii) repay and
discharge the Bond Loan, and (ix) pay any other costs or expenses necessary to achieve the
Completion Date and Rental Achievement.
Development Fee” means the fees and overhead payable by the Partnership to the
Developer pursuant to the terms of the Development Agreement for its services in connection with
the development and rehabilitation of the Apartment Complex.
Disposition” (including the forms Dispose and Disposing) means, as to a specified
Partner, theassignment, sale, transfer, exchange or other disposition of all or any part of its Interest.
Due Diligence Recommendations” means those developmental recommendations set
forth on Exhibit C hereto.
Economic Risk of Loss” has the meaning set forth in Treasury Regulation Section 1.752-
2.
Eligible Basis” has the meaning set forth in Section 42(d) of the Code.
Entity” means any Person, general partnership, limited partnership, limited liability
company, corporation, joint venture, trust, business trust, cooperative or association.
Environmental Law” means and includes any federal, state and local laws, statutes, rules,
regulations and ordinances pertaining to the protection of the environment or otherwise pertaining
to public health or employee health and safety, including but not limited to, CERCLA, the Clean
Air Act, the Clean Water Act, the Toxic Substance Control Act, the Safe Drinking Water Act, the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, the
Emergency Planning and Community Right to Know Act and the Occupational Safety and Health
Act of 1970.
Estoppel Letter” means an estoppel letter in form and substance reasonably satisfactory
to the Special Limited Partner delivered to the Partnership from each Lender which certifies as to
each Mortgage Loan (i) that there is no default ongoing pursuant to the Mortgage Loan
Documents, (ii) the amounts of interest and principal paid on such Mortgage Loan to date and
iii) the outstanding principal balance of such Mortgage Loan.
Event of Bankruptcy” means with respect to any Person,
i) the entry of a decree or order for relief by a court having jurisdiction in
respect of such Person in an involuntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of his property,
or ordering the winding-up or liquidation of his affairs and the continuance of any such
decree or order unstayed and in effect for a period of sixty (60) consecutive days;
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ii) the commencement by such Person of a voluntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or any other applicable federal
or state bankruptcy, insolvency or other similar law, or the consent by him to the
appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of such Person or for any substantial part of his property,
or the making by him of any assignment for the benefit of creditors, or the taking of
corporate action by the Person in furtherance of any of the foregoing;
iii) the commencement against such Person of an involuntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, which has not been
vacated, discharged or bonded within sixty (60) consecutive days;
iv) the admission of such Person of his or its inability to pay his or its debts as
they become due; or
v) such Person becoming “insolvent” by the taking of any action or the making
of any transfer or otherwise, as insolvency is or may be defined pursuant to the federal
bankruptcy laws (as now or hereafter constituted) or any other applicable federal or state
bankruptcy, insolvency or similar law.
Extended Use Agreement” means the extended use housing commitment to be executed
by the Partnership in accordance with the requirements of the Credit Agency and the provisions of
Section 42(h)(6)(A) of the Code.
50% Completion Date” means the date that fifty percent (50%) of the projected hard
construction costs for the completion of the Apartment Complex, as evidenced by the certification
on the AIA form payment application, have been incurred by the Partnership.
Filing Office” means the Office of the Secretary of State of the State.
Fiscal Year” means the twelve (12)-month period which begins on the first day of January
and ends on the thirty-first day of December of each calendar year (or ends on the date of final
dissolution for the year in which the Partnership is wound up or dissolved).
General Partner” means the Managing General Partner, and any Person who becomes a
General Partner as provided herein, in its capacity as a general partner of the Partnership. At any
and all times where there is more than one General Partner, the term General Partner shall mean
such General Partners.
Governmental Authority” means the City (other than in its capacity as a Partner), the
Credit Agency or any other federal, state or local governmental authority having jurisdiction over
the particular matter to which reference is being made.
GP Obligations” shall have the meaning set forth in Section 14.1.
Gross Asset Value” means, with respect to any asset, the asset’s adjusted basis for federal
income tax purposes, except as follows:
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i) The initial Gross Asset Value of any asset contributed by a Partner to the
Partnership shall be the gross fair market value of such asset, as determined by the
contributing Partner and the Partnership;
ii) The Gross Asset Values of all Partnership assets shall be adjusted to equal
their respective gross fair market values, as determined by the General Partner, as of the
following times: (a) the acquisition of an additional interest in the Partnership by anynew
or existing Partner in exchange for more than a de minimis Capital Contribution; (b) the
distribution by the Partnership to a Partner of more than a de minimis amount of Partnership
property as consideration for an interest in the Partnership; and (c) the liquidation of the
Partnership within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Allocation
Regulations; provided, however, that the adjustments pursuant to clauses (a) and (b) above
shall be made only if the General Partner reasonably determines that such adjustments are
necessary or appropriate to reflect the relative economic interests of the Partners in the
Partnership;
iii) The Gross Asset Value of any Partnership asset distributed to any P artner
shall be the gross fair market value of such asset on the date of distribution; and
iv) The Gross Asset Values of Partnership assets shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code
Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are
taken into account in determining Capital Accounts pursuant to Section
1.704-1(b)(2)(iv)(m) of the Allocation Regulations and Section 4.1 hereof; provided,
however, that Gross Asset Values shall not be adjusted pursuant to this clause (iv) to the
extent that the General Partner determines that an adjustment pursuant to clause (ii) hereof
is necessary or appropriate in connection with a transaction that would otherwise result in
an adjustment pursuant to this clause (iv).
If the Gross Asset Value of an asset has been determined or adjusted pursuant to Section
i), (ii) or (iv) hereof, such Gross Asset Value shall thereafter be adjusted by the depreciation taken
into account with respect to such asset for purposes of computing Profits or Losses.
Hazardous Material” has the collective meanings given to the terms “hazardous material”,
hazardous substances”, “hazardous wastes”, “toxic substances”, “toxic waste” and analogous
terms, in (i) the Federal Comprehensive Environmental Response, Compensation and Liability Act
of 1980, 42 U.S.C. Sec. 9601 et seq., as amended, (ii) the Hazardous Materials Transportation Act,
as amended, 39 U.S.C. Section 1801 et seq., (iii) the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et seq., (iv) any similar applicable state or local law, or (v) any
regulation adopted or publication promulgated pursuant to any such law, and to the term
radioactive materials” in the context of the Atomic Energy Act, 28 U.S.C. Sec. 2344, and also
includes any meanings given to such terms in any similar state or local statutes, ordinances,
regulations or by-laws. The term Hazardous Material also includes oil and any other substance
known to be hazardous.
Housing Authority” means Aspen/Pitkin County Housing Authority, a Colorado body
corporate and politic.
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Immediate Family” means with respect to any Person, such Person’s spouse, parents,
parents-in-law, descendants, nephews, nieces, brothers, sisters, brothers-in-law, sisters-in-law,
children, children-in-law, grandchildren and grandchildren-in-law.
Incentive Management Agreement” means the agreement by and between the Partnership
and the General Partner which provides for the payment of the Incentive Management Fee.
Incentive Management Fee” means the fee payable under the Incentive Management
Agreement to the General Partner for supplemental services provided with respect to the
Apartment Complex.
Initial Adjustment Date” shall have the meaning set forth in Section 5.1(e).
Initial Compliance Audit” shall have the meaning set forth in Section 12.7(n).
Initial Full Occupancy Date” means the first date on which the Investment Limited Partner
shall have received documentation evidencing that (i) not less than 95% of the 40 low-income
apartment units in the Apartment Complex shall have been leased to and shall have been initially
occupied by tenants on such date meeting the terms of the Minimum Set-Aside Testunder executed
leases at rentals meeting the requirements of the Rent Restriction Test such that all such units
qualify for the Tax Credit and (ii) not less than 95% of the apartment units in the Apartment
Complex are then physically occupied by tenants.
Inspecting Consultant” means the consultant retained by any Lender (including, without
limitation, the Bond Lender) or the Partnership with the Consent of the Special Limited Partner to
monitor the progress of the rehabilitation of the Apartment Complex and to certify as to the
completion of such construction.
Installment” means an installment of the Investment Limited Partner’s Capital
Contribution paid or payable to the Partnership pursuant to Section 5.1.
Insurance Requirements” means the insurance which the General Partner is required to
cause the Partnership to maintain during the term of the Partnership as set forth on Exhibit D
hereto.
Interest” means the entire interest of a Partner in the Partnership at any particular time,
including the right of such Partner to any and all benefits to which a Partner may be entitled
hereunder, such as Profits, Losses and distributions, and to and the obligation of such Partner to
comply with the terms of this Agreement.
Invested Amount” means (i) as to the Investment Limited Partner, an amount equal to the
Capital Contribution divided by 0.95 and (ii) as to any other Partner, an amount equal to its paid-in
Capital Contribution.
Investment General Partner” means BCCTC Rocky Mountain Associates, LLC, a
Massachusetts limited liability company, in its capacity as the general partner of the Investment
Limited Partner, and any other Person who may become a successor or additional general partner
of the Investment Limited Partner.
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Investment Limited Partner” means BCRMAHF and any Person or Persons who replace
it as Substituted Limited Partner.
Issuer” means the Credit Agency, and its successors, as the issuer of the Bonds.
Lender” means any Person (other than the General Partner or the Class B Limited Partner
or their respective Affiliates) who makes a loan to the Partnership, whether or not such loan is
secured by a Mortgage, or the successors and assigns of such Person in such capacity.
Limited Partners” means the Investment Limited Partner, the Special Limited Partner and
any Substituted Limited Partner. The Limited Partners shall not include the Class B Limited
Partner.
Liquidating Event” shall have the meaning set forth in Section 2.4.
Management Agent” means the Housing Authority, in its capacity as the initial
management and rental agent for the Apartment Complex, and any successor management and
rental agent designated or appointed at any time.
Management Agreement” means the agreement between the Partnership and the
Management Agent providing for the management of the Apartment Complex.
Management Fee” means the Management Fee to which reference is made in
Section 11.1.
Managing General Partner” means any Person designated as such pursuant to the
provisions of Section 6.4.
Material Agreement” means any agreement to which the Partnership is a party or towhich
the Apartment Complex is subject, the termination of which would have a material adverse impact
on the Apartment Complex or the business and operations of the Partnership.
Material Event” means the occurrence of any of the following events:
i) a material breach by a General Partner, Class B Limited Partner (or any of
their Affiliates), as the case may be, in the performance of any of its obligations under this
Agreement, or any of the Material Agreements;
ii) a Terminating Event as to any General Partner or Class B Limited Partner,
as the case may be, or an Event of Bankruptcy as to the Partnership, or prior to the
Completion Date, the Developer;
iii) a material violation by any General Partner of its fiduciary duties as a
General Partner of the Partnership;
iv) a violation by any General Partner or Class B Limited Partner, as the case
may be, of any law, regulation or order applicable to the General Partner or Class B Limited
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Partner or the Partnership which has or may have a material adverse effect on the
Partnership or the Apartment Complex;
v) a material breach by the Partnership or any General Partner (or any of their
respective Affiliates) under any Project Document or other material agreement or
document affecting the Partnership or the Apartment Complex;
vi) the failure to achieve the Completion Date by December 31, 2017;
vii) the failure to begin the Credit Period for all buildings in the Apartment
Complex during calendar year 2017;
viii) the commencement of foreclosure proceedings with respect to any
Mortgage, which have not been withdrawn or dismissed within thirty (30) days after the
date of such commencement;
ix) the failure of the General Partner to make any payment required to be made
to the Investment Limited Partner pursuant to the provisions of Section 5.1(e) or (f); or
x) the fraud, bad faith, gross negligence, or willful misconduct by a General
Partner or Class B Limited Partner.
Minimum Balance” has the meaning set forth in Section 6.5(e)(ii).
Minimum Set-Aside Test” means the set aside test selected by the Partnership pursuant to
Section 42(g) of the Code whereby at least 40% of the units in the Apartment Complex must be
occupied by individuals with incomes equal to 60% or less of area median income, as adjusted for
family size.
Mortgage” means any mortgage indebtedness of the Partnership evidenced by any Note
and secured by any mortgage on the Apartment Complex from the Partnership to any Lender; and,
where the context admits, the term “Mortgage” shall mean and include any of the mortgages
securing said indebtedness and any other documents pertaining to said indebtedness which were
required by the Lender as a condition to making such Mortgage Loan. In case any Mortgage is
replaced by any subsequent mortgage or mortgages, such term shall refer to any such subsequent
mortgage or mortgages. The term “mortgage” means any mortgage, mortgage deed, deed of trust,
deed to secure debt or any similar security instrument, and “foreclose” and words of like import
include the exercise of a power of sale under a mortgage or comparable remedies.
Mortgage Loan” means a loan to the Partnership made by any Lender and secured by a
Mortgage, including but not limited to the Bond Loan, the CHFA Loan, the City Loan, and the
Seller Loan.
Mortgage Loan Documents” means all documents evidencing and securing each of the
Mortgage Loans or otherwise entered into connection therewith, and/or the Permanent Loan
Documents, as the context may require.
New Allocation” shall have the meaning set forth in Section 10.5(b).
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Nonrecourse Debt” or “Nonrecourse Liability” means any indebtedness for which none
of the Partners has any Economic Risk of Loss other than through his or its interest in the
Partnership property securing such indebtedness, as defined in Section 1.752-1(a)(2) of the
Allocation Regulations.
Nonrecourse Deductions” has the meaning set forth in Section 1.704-2(b)(1) of the
Allocation Regulations.
Note” means and includes any Note from the Partnership to a Lender evidencing a
Mortgage Loan, and shall also mean and include any Note supplemental to said original Note
issued to a Lender or any Note issued to a Lender in substitution for any such original Note.
Operating Deficit” means, for any specified period of time, the amount by which the Cash
Receipts of the Partnership are less than the amount necessary to pay all Cash Expenditures of the
Partnership.
Operating Profits or Losses” means, with respect to any Fiscal Year, the Profits or Losses
of the Partnership for such Fiscal Year other than Profits or Losses from a Capital Transaction.
Operating Reserve” shall have the meaning set forth in Section 6.5(e)(ii).
Original Agreement” has the meaning set forth in the Preliminary Statement.
Original Limited Partner” has the meaning set forth in the Preliminary Statement.
Partner” means any General Partner, Class B Limited Partner or Limited Partner.
Partner Nonrecourse Debt” has the meaning set forth in Section 1.704-2(b)(4) of the
Allocation Regulations.
Partner Nonrecourse Debt Minimum Gain” has the meaning set forth in Sections
1.704-2(i)(2) and (3) of the Allocation Regulations.
Partner Nonrecourse Deductions” has the meaning set forth in Sections 1.704-2(i)(1) and
1.704-2(i)(2) of the Allocation Regulations.
Partnership” means the limited partnership continued pursuant to this Agreement.
Partnership Management Fee” shall have the meaning set forth in Section 6.12(c).
Partnership Minimum Gain” has the meaning set forth in Section 1.704-2(d) of the
Allocation Regulations.
Payment Certificate” shall have the meaning set forth in Section 5.1(b)
Percentage Interests” means the interests of the Partners in Profits and Losses, tax-exempt
income, non-deductible, non-capitalizable expenditures and Tax Credits, as set forth in
Schedule A.
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Permanent Lender” means the City or any other Lender providing permanent financing
for the ApartmentComplex who has been approved by the Special Limited Partner and the General
Partner, except as otherwise provided in Section 3.2.
Permanent Loan” means any permanent loan provided by the Permanent Lender to the
Partnership pursuant to the terms of the Permanent Loan Documents and approved by the Special
Limited Partner.
Permanent Loan Conditions” means that (a) the CHFA Loan (i) has a term of not less than
40 years, (ii) has an amortization schedule not longer than 40 years, (iii) is in a principal amount
of not more than $2,460,000 and (b) when the CHFA Loan is in place, the Debt Service Coverage
Ratio of the Partnership is projected to be not less than 1.20 to 1.00, assuming annual operating
expenses of the greater of actual expenses or $________ per year, and a vacancy factor of 5%.
Permanent Loan Documents” means the Permanent Note, the Permanent Mortgage and
all other documents executed and/or delivered in connection with the Permanent Loan.
Permanent Mortgage” means the Mortgage securing the Partnership’s obligations under
the Permanent Note.
Permanent Mortgage Commencement” means the payment and discharge of the Bond
Loan, the full disbursement of and commencement of the amortization of the CHFA Loan and the
execution and delivery of the CHFA Loan Documents.
Permanent Note” means any Note to be executed by the Partnership to evidence its
obligations with respect to the Permanent Loan, which Note shall be secured by a Permanent
Mortgage.
Person” means any individual or Entity.
Plans and Specifications” means the plans and specifications for the rehabilitation of the
Apartment Complex, including, without limitation, specifications for materials, and all properly
approved amendments and modifications thereof.
Prime Rate” means the rate of interest announced from time to time by The Wall Street
Journal as its base rate.
Profits or Losses” shall have the meaning set forth in Section 10.4(b)(v).
Project Documents” means and includes the Mortgage Loan Documents, this Agreement,
the Development Agreement, anyDeferred Development Fee Note, the Extended Use Agreement,
the Incentive Management Agreement, the Management Agreement, the Purchase Option, all other
instruments delivered to (or required by) any Lender and all other documents relating to the
Apartment Complex and by which the Partnership is bound, as amended or supplemented from
time to time.
Projected Credit” means with respect to a particular Fiscal Year, the total amount of Tax
Credit projected to be allocable by the Partnership to the Investment Limited Partner for such
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Fiscal Year, and shall be as follows: [$523,810 per annum for each of the Fiscal Years 2017
through 2026 (inclusive), provided, however, that the Projected Credit for 2017 shall be reduced
by the amount, if any, by which the Actual Credit for 2026 exceeds $523,810], and provided further
that upon the occurrence of any of the events described in Section 5.1(e), the Projected Credit shall
thereafter be the Revised Projected Credit.
Projected Rents” means the rents described in Exhibit B attached hereto and made a part
hereof.
Purchase Option” means that certain Purchase Option and Right of First Refusal
Agreement dated as of September 1, 2016, by and among the Partnership, the Managing General
Partner, the Class B Limited Partner and the Limited Partners, as amended.
Qualified Basis” has the meaning set forth in Section 42(c) of the Code.
Qualified Contract” has the meaning set forth in Section 3.5(a).
Qualified Income Offset Item” means (1) an allocation of loss or deduction that, as of the
end of each year, reasonably is expected to be made (a) pursuant to Section 704(e)(2) of the Code
to a donee of an interest in the Partnership, (b) pursuant to Section 706(d) of the Code as the result
of a change in any Partner’s Interest, or (c) pursuant to Treasury Regulation Section
1.751-1(b)(2)(ii) as the result of a distribution by the Partnership of unrealized receivables or
inventory items and (2) a distribution that, as of the end of such year, reasonably is expected to be
made to a Partner to the extent it exceeds offsetting increases to such Partner’s Capital Account
which reasonably are expected to occur during or prior to the Partnership taxable year in which
such distribution reasonably is expected to occur.
Recapture Amount” shall have the meaning set forth in Section 10.6.
Recapture Event” shall have the meaning set forth in Section 10.6(a).
RECD” means the Rural Economic Community and Development office of the United
States Department of Agriculture.
Recourse Obligations” shall have the meaning set forth in Section 10.4(b)(i).
Reduction Amount” shall have the meaning set forth in Section 5.1(f).
Reduction Year” shall have the meaning set forth in Section 5.1(f).
Regulations” means the rules and regulations applicable to the Apartment Complex or the
Partnership of the Credit Agency, and any Governmental Authority having jurisdiction over the
Partnership and/or the Apartment Complex.
Related Person” means a Person related to a Partner within the meaning of Treasury
Regulation Section 1.752-4(b).
Remaining Interest” shall have the meaning set forth in Section 7.4(d).
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Rent Restriction Test” means the test pursuant to Section 42 of the Code whereby the
gross rent charged to tenants of the low-income units in the Apartment Complex may not exceed
thirty percent (30%) of the qualifying income levels.
Rental Achievement” means the first time following three (3) consecutive full calendar
months of operations after Permanent Mortgage Commencement (with each month considered
individually) that the Apartment Complex generates a 1.15 to 1.00 Debt Service Coverage Ratio.
Replacement Reserve” shall have the meaning set forth in Section 6.5(e).
Repurchase Amount” shall have the meaning set forth in Section 5.2(a).
Repurchase Event” shall have the meaning set forth in Section 5.2(a).
Required Sale Notice” has the meaning set forth in Section 3.5(b).
Requisite Approvals” means any required approvals of each Lender and Agency to an
action proposed to be taken by the Partnership.
Revised Projected Credit” has the meaning set forth in Section 5.1(e).
Schedule A” means Schedule A to this Agreement, as amended from time to time.
Seller” means Aspen Country Inn 1, L.P., a Colorado limited partnership.
Seller Loan” means the loan in the aggregate amount of [$3,855,930] to be provided by
the Seller to the Partnership pursuant to the terms of the Seller Loan Documents.
Seller Loan Agreement” means the loan agreement to be entered into between the Seller
and the Partnership, as may be amended.
Seller Loan Documents” means the Seller Loan Agreement, the Seller Loan Note, the
Seller Loan Mortgage and all other documents to be executed by the Partnership in connection
with the Seller Loan upon the Consent of the Special Limited Partner. The Seller Loan is expected
to be assigned by the Seller to the City subsequent to Investment Closing.
Seller Loan Mortgage” means the Mortgage securing the Partnership’s obligations under
the Seller Loan Note.
Seller Loan Note” means the promissory note to be executed by the Partnership to
evidence its obligations with respect to the Seller Loan, which loan is secured by the Seller Loan
Mortgage.
Service” means the Internal Revenue Service.
Share of Partner Nonrecourse Debt Minimum Gain” means, for each Partner an amount
equal to his or its “share of partner nonrecourse debt minimum gain” as determined in accordance
with Section 1.704-2(i)(5) of the Allocation Regulations.
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Share of Partnership Minimum Gain” means for each Partner, an amount equal to his or
its “share of partnership minimum gain” as determined in accordance with Section 1.704 -2(g) of
the Allocation Regulations.
Site” has the meaning given to it in the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601 et seq., as amended, and shall also
include any meaning given to it in any similar state or local statutes, ordinances, regulations or
by-laws.
Special Limited Partner” means BCCC, and any Person who becomes a Special Limited
Partner as provided herein, in its capacity as a special limited partner of the Partnership.
Specified Proceeds” means (i) the proceeds of all Mortgage Loans, (ii) the net rental
income, if any, generated by the Apartment Complex prior to Rental Achievement which is
permitted by the Lenders to be applied to the payment of Development Costs, (iii) the Capital
Contributions of the Limited Partners, (iv) the Capital Contributions of the General Partner and
Class B Limited Partner in the amounts set forth in Schedule A as of the date hereof, (v) any
insurance proceeds arising out of casualties occurring prior to Rental Achievement, and (vi) all
other sources of funds including net rental income available to the Partnership prior to Rental
Achievement, not specifically earmarked for other purposes.
State” means the State of Colorado.
State Designation” means the date on which the Partnership receives an allocation in
proper form pursuant to Section 42 of the Code from the Credit Agency of Tax Credits, as
evidenced by the execution by or on behalf of the Credit Agency of one or more Form(s) 8609.
Subordinated Loan” means any loan made by the General Partner to the Partnership
pursuant to Section 6.5(e)(i), Section 6.10 or anyother provision of this Agreement which specifies
advances to be made as a Subordinated Loan.
Subordinated Loan Period” shall have the meaning set forth in Section 6.10.
Subordinated Management Fee” shall have the meaning set forth in Section 11.1.
Substantial Completion Certificate” means the certificate to be issued by the project
architect on or after the Completion Date in the form attached hereto as Exhibit E.
Substituted Limited Partner” means any Person who is admitted to the Partnership as
Limited Partner under Section 8.2 or acquires the Interest of a Limited Partner pursuant to Section
5.2.
Syndication Expenses” means all expenditures classified as syndication expenses
pursuant to Treasury Regulation Section 1.709-2(b). Syndication Expenses shall be taken into
account under this Agreement at the time they would be taken into account under the Partnership’s
method of accounting if they were deductible expenses.
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Tax” or “Taxes” means any and all liabilities, losses, expenses and costs that are, or are
in the nature of, taxes, fees or other governmental charges, including interest, penalties, fines and
additions to tax imposed by the Internal Revenue Service or any other taxing authority.
Tax Accountants” means CohnReznick LLP of Bethesda, Maryland or such other firms
of independent certified public accountants as may be engaged by the Special Limited Partner to
review the Partnership income tax returns.
Tax Credit” means the low-income housing taxcredit described in Section 42 of the Code.
Tax Credit Set-Aside” means the date on which the Partnership receives the Credit
Approvals.
Terminating Event” means the death or permanent disability of, or a final determination
by a court of competent jurisdiction of insanity or incompetence as to, an individual General
Partner (unless the Consent of the Special Limited Partner to a substitute General Partner is
received, and such substitute General Partner is admitted to the Partnership by the first to occur of
i) the sixtieth (60th) day following such event or (ii) such earlier date as is necessary to prevent a
dissolution of the Partnership under the Act), an Event of Bankruptcy or dissolution of a General
Partner, the transfer of all or any portion of its Partnership Interest by a General Partner, or the
voluntary or involuntary Withdrawal of the General Partner from the Partnership. For purposes of
the foregoing, an individual General Partner shall be deemed to be permanently disabled if he or
she becomes disabled during the term of this Agreement through any illness, injury, accident or
condition of either a physical or psychological nature and, as a result, is unable to perform
substantially all of his or her duties and responsibilities hereunder for one hundred twenty (120)
days during any period of three hundred sixty-five (365) consecutive calendar days. Involuntary
withdrawal shall occur whenever a General Partner may no longer continue as a General Partner
by law or pursuant to any terms of this Agreement. In the case of a General Partner which is an
Entity, a transfer of a majority of the voting stock (or other beneficial interest) of the General
Partner to a Person who is not an Affiliate of the General Partner or any Entity constituting the
General Partner shall be deemed to be a Terminating Event.
Termination Notice” has the meaning set forth in Section 3.5(a).
Title Policy” means the owner’s title insurance policy, or at the option of the Special
Limited Partner an endorsement thereto, with an effective date on or after the date hereof, in the
amount of not less than [$14,181,910], issued by Stewart Title Guaranty Company to the
Partnership, evidencing the Partnership’s ownership of the Apartment Complex subject only to
such exclusions, exceptions, conditions and stipulations as may be approved by the Special
Limited Partner in its sole discretion and endorsed at a minimum with an endorsement insuring
against all zoning defects relating to the Apartment Complex, a Fairway endorsement, a non-
imputation endorsement, an access endorsement, a comprehensive endorsement and a same-as-
survey endorsement.
Vessel” has the meaning given to it in the Federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Sec. 9601 et seq., as amended, and
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shall also include any meaning given to it in any similar state or local statutes, ordinances,
regulations or by-laws.
Voluntary Loans” shall have the meaning set forth in Article IX.
Withdrawal” (including the forms Withdraw, Withdrawing and Withdrawn) means, as to
a General Partner or Class B Limited Partner, the occurrence of death, adjudication of insanity or
incompetence, Event of Bankruptcy, dissolution, liquidation, or voluntary or involuntary
withdrawal or retirement from the Partnership for any reason, including whenever a General
Partner or Class B Limited Partner may no longer continue as a General Partner or Class B Limited
Partner by law or pursuant to any terms of this Agreement. Withdrawal also shall mean the sale,
assignment, transfer or encumbrance by a General Partner or Class B Limited Partner of its interest
as a General Partner or Class B Limited Partner other than a pledge or assignment by a General
Partner or Class B Limited Partner of its Interest required pursuant to the terms of the Bond Loan
Documents and as approved in writing by the Special Limited Partner. A General Partner or Class
B Limited Partner which is a corporation, limited liability company or partnership shall be deemed
to have sold, assigned, transferred or encumbered its interest as a General Partner or Class B
Limited Partner in the event (as a result of one or more transactions) of any sale, assignment or
other transfer (but specifically excluding any transfer occurring pursuant to the laws of descent
and distribution) or encumbrance of a controlling interest in a corporate or limited liability
company General Partner or of a general partner or member interest in a General Partner or Class
B Limited Partner which is a partnership or limited liability company to a Person who is not an
Affiliate of the General Partner or Class B Limited Partner. For purposes of this definition of
Withdrawal, the term “controlling interest” shall mean the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise.
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ARTICLE II
Name and Business
2.1 Name; Continuation
The name of the Partnership is “ACI Affordable 1 LLLP”. The Partners agree to continue
the Partnership which was formed pursuant to the provisions of the Act.
2.2 Office and Registered Agent
a) The principal office of the Partnership is c/o City of Aspen, 130 Galena Street,
Aspen, Colorado 81611, at which office there shall be maintained those records required by the
Act to be kept by the Partnership. The Partnership may have such other or additional offices as
the General Partner shall deem desirable. The General Partner may at any time change the location
of the principal office and shall give due notice thereof to the Limited Partners and the Class B
Limited Partner, provided that doing so shall not adversely affect the Investment Limited Partner
for tax purposes.
b) The registered agent for the Partnership in the State for service of process is as
follows:
City of Aspen
130 Galena Street
Aspen, Colorado 81611
2.3 Purpose
The purpose of the Partnership is to acquire, hold, invest in, secure financing for, construct,
rehabilitate, develop, improve, maintain, operate, lease and otherwise deal with the Apartment
Complex. The Partnership shall operate the Apartment Complex in accordance with any
applicable Regulations. The Partnership shall not engage in any other business or activity.
2.4 Term and Dissolution
a) The Partnership shall continue in full force and effect until December 31, 2076,
except that the Partnership shall be dissolved and its assets liquidated prior to such date upon the
first to occur of the following events (“Liquidating Events”):
i) The sale or other disposition of all or substantially all of the assets of the
Partnership;
ii) The Withdrawal of a General Partner, unless the Partnership is continued as
provided in Section 7.2;
iii) The election to dissolve the Partnership made in writing by the General
Partner with the Consent of the Investment Limited Partner and any Requisite Approvals;
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iv) The entry of a final decree of dissolution of the Partnership by a court of
competent jurisdiction; or
v) Any other event which causes the dissolution of the Partnership under the
Act if the Partnership is not reconstituted pursuant to the provisions of Section 7.2 or
Section 7.3.
b) Upon the dissolution of the Partnership, the General Partner (or for purposes of this
paragraph, its trustees, receivers or successors) shall cause the cancellation of the Certificate and
shall liquidate the Partnership assets and apply and distribute the proceeds thereof in accordance
with the provisions of Section 10.3, unless the Investment Limited Partner elects to reconstitute
the Partnership and continue its business as provided in Section 7.2 or 7.3, in which case the
Partnership assets shall be transferred to the new Partnership as provided in such Section.
Notwithstanding the foregoing, if, during liquidation, the General Partner shall determine that an
immediate sale of part or all of the Partnership’s assets would be impermissible, impractical or
cause undue loss to the Partners, the General Partner may defer liquidation of, and withhold from
distribution for a reasonable time, any assets of the Partnership except those necessary to satisfy
Partnership debts and obligations (other than Subordinated Loans).
2.5 Nature of Partnership Interests
No Partnership Interest hereunder shall be represented by any certificate or be considered
a “security” or “investment property” for purposes of Article 8 and Article 9 of the Uniform
Commercial Code of any jurisdiction.
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ARTICLE III
Mortgage, Refinancing and Disposition of Property
3.1 Personal Liability
Subject to compliance with the Permanent Loan Conditions, the Partnership shall be
authorized to obtain the Bond Loan to finance the acquisition, development and construction of
the Apartment Complex and shall secure the Bond Loan by the Bond Mortgage. The General
Partner and its Affiliates, jointly and severally, are hereby authorized to incur personal liability for
the repayment of funds advanced by the Bond Lender (and interest thereon) pursuant to the Bond
Loan Documents. However, from and after the date of Permanent Mortgage Commencement,
neither the General Partner nor Class B Limited Partner nor any respective Related Person shall at
any time bear, nor shall the General Partner or Class B Limited Partner permit any other Partner
or any Related Person to bear, the Economic Risk of Loss for the payment of any portion of any
Mortgage Loan (other than the City Loan and the Seller Loan) unless, prior to the effectiveness of
the transaction in which such Economic Risk of Loss is created or assumed, the General Partner
shall have obtained, at the expense of the Partnership, an opinion from reputable tax counsel, in
form and substance reasonably satisfactory to the Special Limited Partner, to the effect that such
Economic Risk of Loss will not result in the reallocation of Tax Credits or Losses from any Limited
Partner to the General Partner or Class B Limited Partner. The General Partner shall cause the
Partnership to elect promptly, to the extent permitted and in the manner prescribed by any Agency
or Lender having jurisdiction, that all debt service payments made by the Partnership to the holder
of the Permanent Mortgage shall be applied first to interest determined at the stated rate set forth
in the Permanent Note, and then to principal due with respect to the Permanent Note.
3.2 Refinancings; Permanent Loan Documents
The Partnership may decrease, increase or refinance any Mortgage Loan and may make
any required transfer or conveyance of Partnership assets for security or mortgage purposes,
provided, however, any such decrease, increase or refinancing of any Mortgage Loan (except for
the repayment of the Bond Loan in accordance with the Bond Loan Documents and the borrowing
of the original principal amount of the CHFA Loan) may be made by the General Partner only
with the Consent of the Special Limited Partner. To the extent not executed as of the date hereof,
the form and content of the Permanent Loan Documents shall be subject to the reasonable Consent
of the Special Limited Partner.
3.3 Sale of Assets
Except pursuant to Section 3.5 or the Purchase Option, the Partnership may sell, lease,
exchange or otherwise transfer or convey all or substantially all the assets of the Partnership only
with the Consent of the Special Limited Partner. Notwithstanding the foregoing and except as set
forth in Section 6.2(a)(vi), no Consent of the Special Limited Partner shall be required for the
execution and delivery of the Bond Loan Documents, the City Loan Documents, the Seller Loan
Documents, the leasing of apartments to tenants in the normal course of operations or the leasing
of all or substantially all the apartments to a public housing authority at rents satisfactory to any
Agency or Lender as expressed in writing, provided (subject to the Rent Restriction Test) that such
rents are not less than the Projected Rents.
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3.4 Real Estate Commissions
The total compensation to all Persons for the sale of the Apartment Complex shall be
limited to a Competitive Real Estate Commission, which in no event shall exceed six percent (6%)
of the contract price for the sale of the Apartment Complex.
3.5 Sale of the Apartment Complex
a) Notwithstanding any provision of this Agreement to the contrary, but subject to and
without limiting the rights of the Managing General Partner or in any way impairing the exercise
of rights under the Purchase Option and the laws of the State, the Special Limited Partner and/or
the Investment Limited Partner shall have the right at any time after the end of the Compliance
Period to require, by notice to the General Partner that the General Partner submit a written request
the “Termination Notice”) to the Credit Agency to find a person to acquire the Partnership’s
interest in the low-income portion of the Apartment Complex pursuant to the provisions of the
Extended Use Agreement and in accordance with the provisions of Section 42(h)(6) of the Code,
unless the Partnership has waived its right to do so. If the General Partner shall fail to submit the
Termination Notice within ninety (90) days of the Special Limited Partner’s request therefor, then
the Special Limited Partner shall have the right at any time thereafter to submit the Termination
Notice to such Credit Agency; provided, that such 90-day period shall be suspended if any action
has been taken by the Managing General Partner to exercise rights under the Purchase Option. If
within one year of the Credit Agency’s receipt of the Termination Notice, the Credit Agency
presents a “qualified contract,” as said term is defined in Section 42(h)(6)(F) of the Code
hereinafter “Qualified Contract”), for the acquisition of the Apartment Complex, then the General
Partner shall cause the Partnership promptly to sell the Apartment Complex in accordance with
the terms of said Qualified Contract, but in no event shall any such sale occur prior to the end of
the Compliance Period without the prior written Consent of the Investment Limited Partner.
b) Notwithstanding any provision of this Agreement to the contrary, and without
limiting the rights of the Managing General Partner or in any way impairing the exercise of rights
under the Purchase Option, and subject to any Requisite Approvals, at any time after the later of:
i) ninety (90) days after the end of the Compliance Period, or (ii) the termination of the term of
the Purchase Option, the Special Limited Partner shall have the right to require, by notice to the
General Partner (the “Required Sale Notice”), that the General Partner promptly use commercially
reasonable efforts to obtain a buyer for the Apartment Complex on the most favorable terms then
available. The General Partner shall submit the terms of any proposed sale to the Special Limited
Partner and the Investment Limited Partner for their approval as provided in Section 3.5(a). If the
General Partner shall fail to so obtain a buyer for the Apartment Complex within twelve (12)
months of the Required Sale Notice or if the Special Limited Partner and/or the Investment Limited
Partner in its/their sole discretion shall withhold its/their consent to any proposed sale to such
buyer, then the Special Limited Partner shall have the right at any time thereafter to obtain a buyer
for the Apartment Complex on terms most favorable then available and otherwise acceptable to
the Special Limited Partner. In the event that such sale is not consummated because of actions
taken or not taken by the General Partner, the General Partner shall upon receipt of notice from
the Investment Limited Partner promptly purchase the Interests of the Investment Limited Partner
and Special Limited Partner for a price equal to the amount each such Partner would have received
giving effect to reasonable estimates of closing costs which would have been incurred) in
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liquidation of the Partnership had such sale been consummated. In the event that the Special
Limited Partner so obtains a buyer, it shall notify the General Partner and the Investment Limited
Partner in writing with respect to the terms and conditions of the proposed sale and, provided the
Investment Limited Partner approves, in its sole discretion, the terms of such sale, the General
Partner shall cause the Partnership promptly to sell the Apartment Complex to such buyer. In the
event that the Investment Limited Partner fails to approve any sale proposed by the General Partner
for a purchase price of equal to or greater than the fair market value of the Apartment Complex (as
determined by appraisal in accordance with Section 3.5(d) below), the General Partner shall have
the right to purchase the Interests of the Special Limited Partner and the Investment Limited
Partner for a price equal to the amount which they would have received (giving effect to reasonable
estimates of closing costs which would have been incurred) in liquidation of the Partnership had
such sale been consummated. In the event that the General Partner fails to exercise such right or,
having exercised the same, to consummate the purchase of such Interests within thirty (30) days
after the disapproval by the Investment Limited Partner of the proposed sale, the Investment
Limited Partner shall have the right to purchase the Interest of each General Partner for a price
equal to the amount it would have received (giving effect to reasonable estimates of closing costs
which would have been incurred) in liquidation of the Partnership had the sale which was not
approved been consummated and the right to replace the General Partner.
c) The General Partner is hereby required, within five (5) days after its receipt of any
offer to purchase the Apartment Complex or all of the Interests in the Partnership, to send a copy
of such offer (or a written description of any such oral offer) to each of the Limited Partners. In
connection with any proposed sale of the Apartment Complex, the Special Limited Partner (or its
designee) shall have the right to (i) receive and review copies of all documents relating to the
proposed sale, (ii) participate in the negotiations of the terms and conditions of the proposed sale,
iii) meet with the proposed purchaser, (iv) solicit proposals for alternative offers for the Apartment
Complex, and (v) provide such other services in connection with the proposed sale as it deems to
be appropriate.
d) In any instance in which the fair market value of the Apartment Complex is required
to be determined by appraisal, the following provisions shall apply. Any such appraisal shall be
conducted by one or more Independent Appraisers (as defined below), to be selected as follows:
As soon as practicable and in any event within thirty (30) days following the General Partner’s
determination that the Investment Limited Partner has failed to approve a sale proposed by the
General Partner for a purchase price of equal to or greater than the fair market value of the
Apartment Complex, the General Partner and the Limited Partners shall select an Independent
Appraiser. In the event the parties are unable to agree upon an Independent Appraiser within such
thirty (30) day period, the General Partner on the one hand and the Limited Partners on the other
shall each select an Independent Appraiser. If the difference between the two appraisals is within
ten percent (10%) of the lower of the two appraisals, the fair market value shall be the average of
the two (2) appraisals. If the difference between the two (2) appraisals is greater than ten percent
10%) of the lower of the two (2) appraisals, then the two appraisers shall jointly select a third
appraiser whose determination of fair market value shall be deemed to be binding on all parties.
If the two (2) appraisers are unable jointly to select a third appraiser, either the General Partner or
the Limited Partners may, upon written notice to the other, apply to the presiding judge of a court
of competent jurisdiction in Aspen County, Colorado for the selection of the third appraiser who
shall then participate in such appraisal proceeding, and who shall be selected from a list of names
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of Independent Appraisers submitted by the General Partner and the Limited Partners. Each list
of names of Independent Appraisers shall be submitted within ten (10) written days after the date
on which the appraisal proceeding is invoked, or will be disregarded and the appraiser shall be
selected from the list provided. The appraisals shall take into account the Extended Use Agreement
and any other restriction recorded as of record against the Apartment Complex. Each of the
General Partner and the Limited Partners shall pay the cost of any appraiser(s) selected by it
pursuant to this Section 3.5(d). If the parties agree on the selection of a single Independent
Appraiser then the costs of such appraiser shall be paid by the General Partner; if the parties are
required to use a third appraiser, then the costs of such third appraiser shall be split between
General Partner and Limited Partners. For purposes of this Section 3.5(d), the term “Independent
Appraiser” means a firm that is generally qualified to render opinions as to the fair market value
of assets such as the Apartment Complex, which satisfies the following criteria: (i) such firm is
not a Partner or an Affiliate of the Partnership or any Partner; (ii) such firm (or a predecessor in
interest to the assets and business of such firm) has been in business for at least five (5) years, and
at least one of the principals of such firm has been in the active business of appraising substantially
similar assets for at least ten (10) years; (iii) such firm has regularly rendered appraisals of
substantially similar assets for at least five (5) years on behalf of a reasonable number of unrelated
clients, so as to demonstrate reasonable market acceptance of the valuation opinions of such firm;
iv) one or more of the principals or appraisers of such firm are members in good standing of an
appropriate professional association or group that establishes and maintains professional standards
for its members; and (v) such firm renders an appraisal only after entering into a contract that
specifies the compensation payable for such appraisal.
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ARTICLE IV
Partners; Capital
4.1 Capital and Capital Accounts
a) The capital of the Partnership shall be the aggregate amount of the cash and the
Gross Asset Value of property contributed by the General Partner and Class B Limited Partner and
by the Limited Partners as set forth in Schedule A. No interest shall be paid by the Partnership on
any Capital Contribution to the Partnership. Schedule A shall be amended from time to time to
reflect the withdrawal or admission of Partners, any changes in the Partnership Interests held by a
Partner arising from the transfer of an Interest to or by such Partner and any change in the amounts
to be contributed or agreed to be contributed by any Partner. No Partner shall have the right to
withdraw or receive a return of any of its Capital Contributions except as set forth in this
Agreement.
b) An individual Capital Account shall be established and maintained for each Partner,
including any additional or substituted Partner who shall hereafter receive an interest in the
Partnership. The Capital Account of each Partner shall be maintained in accordance with the
following provisions:
i) To each Partner’s Capital Account there shall be credited such Partner’s
Capital Contributions, such Partner’s distributive share of Profits, and any items in the
nature of income or gain that are specially allocated pursuant to Section 10.4 hereof, and
the amount of any Partnership liabilities that are assumed by such Partner or that are
secured by any Partnership Property distributed to such Partner;
ii) To each Partner’s Capital Account there shall be debited the amount of cash
and the Gross Asset Value of any Partnership Property distributed to such Partner pursuant
to any provision of this Agreement, such Partner’s distributive share of Losses, and any
items in the nature of expenses or losses that are specially allocated pursuant to Section
10.4 hereof, and the amount of any liabilities of such Partner that are assumed by the
Partnership or that are secured by any property contributed by such Partner to the
Partnership.
In the event that the Gross Asset Values of Partnership assets are adjusted pursuant to this
Agreement, the Capital Accounts of all Partners shall be adjusted simultaneously to reflect the
aggregate net adjustment as if the Partnership recognized gain or loss equal to the amount of such
aggregate net adjustment.
c) The original Capital Account established for any Assignee (as hereinafter defined)
shall be in the same amount as, and shall replace, the adjusted Capital Account of the Partner which
such Assignee succeeds, and, for the purpose of the Agreement, such Assignee shall be deemed to
have made the Capital Contribution, to the extent actually paid in, of the Partner which such
Assignee succeeds. The term “Assignee,” as used in this paragraph, shall mean a Person who shall
become entitled to receive a share of the Profits, Losses, Tax Credits and distributions of the
Partnership by reason of such Person succeeding to the Interest of a Partner by assignment of all
or any part of an Interest. To the extent an Assignee receives less than 100% of the Interest of a
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Partner, such Assignee’s Capital Account and Capital Contribution shall be in proportion to the
Partnership Interest such Assignee receives, and the Capital Account and Capital Contribution of
the Partner who retains a partial interest in the Partnership shall continue, and not be replaced, in
proportion to the Partnership Interest such Partner retains.
d) The foregoing provisions and other provisions of this Agreement relating to the
maintenance of the Capital Accounts are intended to comply with the Allocation Regulations, and
shall be interpreted and applied in a manner consistent with such Allocation Regulations.
4.2 General Partner
a) The name, address and Capital Contribution of the General Partner are as set forth
on Schedule A.
b) The General Partner has contributed or will contribute contemporaneously with the
execution hereof $100 to the capital of the Partnership.
c) Notwithstanding anything contained herein to the contrary, in the event that the
Developer is an Affiliate of any General Partner, at the election of the Special Limited Partner in
its sole and absolute discretion, upon the removal of such General Partner in accordance with the
terms hereof, to the extent all or any portion of the Development Fee or the Deferred Development
Fee Note, if any, remains unpaid as of the effective date of such removal of such General Partner,
such General Partner shall immediately prior to such removal make a capital contribution to the
Partnership in an amount sufficient to pay any unpaid balance of the Development Fee and the
Deferred Development Fee Note, if any, and all accrued but unpaid interest thereon, and the
Partnership shall thereafter promptly pay to the Developer such remaining balance of the
Development Fee and the Deferred Development Fee Note, if any, and all accrued but unpaid
interest thereon.
4.3 Class B Limited Partner
a) The name, address and Capital Contribution of the Class B Limited Partner are as
set forth on Schedule A.
b) The Class B Limited Partner has contributed or will contribute contemporaneously
with the execution hereof $100 to the capital of the Partnership.
4.4 Limited Partners
a) Each of the Special Limited Partner and the Investment Limited Partner is hereby
admitted to the Partnership as a Limited Partner as of the Admission Date and agrees to be bound
by the terms and provisions of the Project Documents and this Agreement. The name and address
of the Investment Limited Partner and the Special Limited Partner are as set forth on Schedule A.
b) Except as otherwise specifically set forth in Sections 4.5 or 7.4, the General Partner
shall have no authority to admit additional Limited Partners without the Consent of the Investment
Limited Partner.
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4.5 Liability of the Limited Partners
Neither any Limited Partner, the Class B Limited Partner nor any Person who becomes a
Substituted Limited Partner shall be liable for any debts, liabilities, contracts or obligations of the
Partnership; such Persons shall be liable only to pay their respective Capital Contributions as and
when the same are due hereunder and under the Act. After its Capital Contribution shall be fully
paid, neither any Limited Partner nor the Class B Limited Partner shall, except as otherwise
required by the Act, be required to make any further capital contributions or payments or lend any
funds to the Partnership.
4.6 Special Rights of the Special Limited Partner
a) Notwithstanding any other provisions herein (other than Section 13.8), to the extent
the law of the State is not inconsistent, the Special Limited Partner shall have the right, subject to
any Requisite Approvals, to:
i) amend this Agreement, provided, however, that no such amendment affect
any material rights (including, without limitation, the right to receive any fees, allocable
share of Cash Flow or other distributions, or Profits or Losses and Tax Credits hereunder
and management authority or rights) or increase any of the liabilities or obligations of any
General Partner without its prior written consent;
ii) dissolve the Partnership, provided, however, that such dissolution shall not
be caused by the Special Limited Partner unless the General Partner has violated a material
provision of any Project Document, which violation has not been cured within any
applicable cure period specified;
iii) remove any General Partner and elect a new General Partner (A) on the
basis of actions of the General Partner constituting fraud, bad faith, gross negligence,
willful misconduct or breach of fiduciary duty, or (B) upon the occurrence of a Material
Event with respect to a General Partner;
iv) remove the Class B Limited Partner and admit a separate housing authority
as a replacement Class B Limited Partner (A) due to actions of the Class B Limited Partner
constituting fraud, bad faith, gross negligence, willful misconduct or breach of fiduciary
duty or (B) upon the occurrence of a Material Event with respect to the Class B Limited
Partner;
v) continue the business of the Partnership with a substitute General Partner,
provided that the General Partner has been removed pursuant to Section 4.5(a)(iii) above;
and
vi) approve or disapprove the sale of all or substantially all of the assets of the
Partnership, which approval shall not unreasonably be withheld after the end of the
Compliance Period.
b) Upon the removal of a General Partner for cause pursuant to Section 4.5(a)(iii),
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i) without any further action by any Partner, the Special Limited Partner shall
cause an Affiliate automatically to become a General Partner (the “Substitute General
Partner”) and acquire in consideration of a cash payment of $100 such portion of the
Interest of the removed General Partner as counsel to the Special Limited Partner shall
determine is the minimum appropriate interest in order to assure the continued status of the
Partnership as a partnership under the Code and under the Act;
ii) the remaining portion of the economic Interest of the removed General
Partner shall automatically be transferred to the Partnership, not as a penalty but as
liquidated damages to compensate the Partnership for the action or omission of such
General Partner leading to its removal, or for the fact of its violation of the terms of this
Agreement and to allow the Partnership to adequately compensate any replacement
General Partner; and
iii) the Substitute General Partner shall automatically be irrevocably delegated
all of the powers and duties of the General Partners pursuant to Section 6.13. A General
Partner so removed will not be liable as a general partner for any obligations of the
Partnership incurred after the effective date of its removal, except to the ex tent that such
obligations arise due to the action or inaction of the General Partner prior to its removal.
Each General Partner hereby grants to the Special Limited Partner an irrevocable (to the
extent permitted by applicable law) power of attorney coupled with an interest to execute
and deliver any and all documents and instruments on behalf of such General Partner and
the Partnership as the Special Limited Partner may deem to be necessary or appropriate in
order to effect the provisions of this Section 4.5 and to enable the new General Partner to
manage the business of the Partnership.
4.7 Meetings
The General Partner, Class B Limited Partner or Limited Partners holding more than ten
percent (10%) of the then outstanding Limited Partner Interests may call meetings of the
Partnership for any matters for which the Limited Partners may vote as set forth in this Agreement.
A list of the names and addresses of all Limited Partners and the Class B Limited Partner shall be
maintained as part of the books and records of the Partnership and shall be made available upon
request to the Class B Limited Partner, any Limited Partner or his representative at his cost. Upon
receipt of a written request either in person or by certified mail stating the purpose(s) of the
meeting, the General Partner shall provide all Limited Partners and the Class B Limited Partner
within ten (10) days after receipt of said request, written notice of a meeting and the purpose of
such meeting to be held on a date not less than fifteen (15) nor more than sixty (60) days after
receipt of said request, at a time and place convenient to the Limited Partners or the Class B
Limited Partner, as applicable.
4.8 Rights and Duties of the Class B Limited Partner.
a) The Class B Limited Partner shall assist and cooperate with the Partnership in the
Partnership’s application for an exemption from special assessments and real propertytax provided
under Colorado Rev. Stat. §29-4-226, §29-4-227 and §29-1-204.5(10) (as applicable). Any letters
or other documents providing for exemption based on the ownership interest in the Partnership of
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the Class B Limited Partner shall be subject to the prior review and approval of the Class B Limited
Partner. The Class B Limited Partner makes no representation or warranty concerning any such
exemption and provides no other assurances regarding the current or continued availability of any
such property tax exemption or the qualification of the Partnership for any such tax exemption.
b) The Class B Limited Partner and all of its past and present officers, directors,
managers, employees, partners, agents, shareholders, members, trustees, predecessors, successors,
subrogees, and attorneys (collectively, the “ALP Parties”), shall incur no liability for the Class B
Limited Partner’s acts or omissions in connection with the Partnership or the Project, except that
the Class B Limited Partner shall be liable to the extent provided by law for its gross negligence,
willful misconduct or knowing violation of law. The Partnership and the General Partner shall
indemnify and hold harmless each of the ALP Parties against any loss, liability, claim or damage
arising from or related to the acts, omissions or conduct of the Partnership or the Project and shall
advance expenses (including attorney fees) incurred in connection therewith. Without limiting the
foregoing, any indemnity obligations under the Partnership Agreement for the benefit of the
Investment Limited Partner shall also apply to each of the ALP Parties, subject to the same
limitations and conditions that apply to the Investment Limited Partner.
c) The prior written consent of the Class B Limited Partner shall be required for:
i) except as provided in (ii) below, the transfer of either (A) the interest of the
General Partner in the Partnership, (B) control of the General Partner, or (C) a majority of
the equity interests in the General Partner;
ii) the withdrawal of the General Partner from the Partnership; provided that
the Investment Limited Partner shall have the right to remove the General Partner pursuant
to this Agreement without the consent of the Class B Limited Partner;
iii) any material amendment or modification to the Extended Use Agreement
other than any amendment required by law); and
iv) any amendment or modification to this Agreement that would (I) have a
material effect on the rights or obligations of the Class B Limited Partner, (II) materially
change the purposes of the Partnership as described in Section 2.3, or (III) authorize the
Apartment Complex to be operated other than as an affordable housing project in
compliance with Section 42 of the Code, the Extended Use Agreement and this Agreement.
d) The Class B Limited Partner shall have the right to withdraw from the Partnership
at any time after occurrence of the following: (i) a material breach by the Partnership or the
General Partner of any provisions of this Section 4.7 if such breach is not cured within thirty (30)
days following written notice thereof by the Class B Limited Partner to the General Partner and
the Investment Limited Partner; (ii) a failure of the Partnership to maintain the ApartmentComplex
in compliance with the Extended Use Agreement and such failure is not cured within thirty (30)
days following written notice thereof by the Class B Limi ted Partner to the General Partner and
the Investment Limited Partner; or (iii) an Event of Bankruptcy with respect to the Partnership;
provided that, if (and only if) the events giving rise to the withdrawal of the Class B Limited
Partner also give rise to the right of the Investment Limited Partner to remove the General Partner
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as provided in this Agreement and the removal of the General Partner is needed in order to effect
a cure hereunder, the Investment Limited Partner shall be granted such additional time as may be
reasonably needed to remove the General Partner so that cure can be effected, in which event the
Class B Limited Partner shall not withdraw. Furthermore, the Class B Limited Partner shall not
withdraw until it finds a replacement satisfactory to the Investment Limited Partner.
e) The General Partner shall cause the Class B Limited Partner to be listed as an
additional insured on all policies of insurance that are required under this Agreement.
f) The Class B Limited Partner shall have the authority (but no obligation) to:
i) Review and comment each year on the content and format of reports to be
provided by the Partnership to the Agency and other funding agencies relating to the use
of the Partnership property to provide affordable housing; and
ii) At its expense, take such other actions as it deems appropriate and as
authorized or contemplated by this Agreement in order to promote efficient use of the
Partnership property to provide affordable housing.
g) For as long as the Class B Limited Partner is a Partner in the Partnership, the
Partnership shall comply with the Extended Use Agreement. In addition, the General Partner
agrees to notify the Class B Limited Partner of vacancies in the Apartment Complex which, based
on the waiting list, are not anticipated to be filled with qualified tenants within forty-five (45) days
and the Class B Limited Partner shall be entitled to coordinate with the General Partner and
Management Agent with respect to the filling of such Apartment Complex vacancies.
h) The Class B Limited Partner shall not have the power or authority to bind the
Partnership or to sign any agreement or document in the name of the Partnership.
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ARTICLE V
Capital Contributions of the Investment Limited Partner
and the Special Limited Partner
5.1 Payments
a) The Special Limited Partner’s Capital Contribution of $10 shall be paid in full in
cash on the Admission Date. The Investment Limited Partner’s Capital Contribution in the
aggregate amount of [$5,604,763] shall be paid in cash installments (the “Installments”), as
follows:
i) [$980,834] (the “First Installment”) on the latest of (A) the Admission Date,
B) the closing of the Mortgage Loans (other than the CHFA Loan), (C) Tax Credit Set-
Aside or (D) the Construction Permitting Date; provided, however, that the General Partner
shall cause the sum of $15,000 to be paid by the Partnership from the proceeds of the First
Installment to the Investment Limited Partner as reimbursement for its legal and due
diligence costs associated with the Apartment Complex (such amount, for administrative
convenience, to be withheld from the First Installment contribution by the Investment
Limited Partner);
ii) [$980,834] (the “Second Installment”) on the latest of (A) the 50%
Completion Date, (B) receipt of an updated Title Policy in form and substance satisfactory
to the Special Limited Partner, (C) receipt by the Investment Limited Partner of an Estoppel
Letter from each Lender and evidence of satisfaction of the Insurance Requirements, and
D) November 1, 2016;
iii) [$280,238] (the “Third Installment”), on the latest of (A) the Completion
Date, (B) Cost Certification, (C) receipt of an updated Title Policy in form and substance
satisfactory to the Special Limited Partner, which policy in no event shall contain a survey
exception, (D) receipt by the Investment Limited Partner of the Contractor Pay-Off Letter,
an Estoppel Letter from each Lender, and evidence of satisfaction of the Insurance
Requirements and the Due Diligence Recommendations, (E) delivery of an “As Built”
survey by a professional engineer licensed in the State reflecting all improvements to the
property, (F) receipt by the Investment Limited Partner of the Substantial Completion
Certificate, (G) receipt by the Investment Limited Partner of the properly recorded
Extended Use Agreement and evidence of the release of the existing land use restriction
agreement with respect to the Apartment Complex, and (H) March 1, 2017;
iv) [$3,082,620] (the “Fourth Installment”) on the latest of (A) the Initial Full
Occupancy Date, (B) Permanent Mortgage Commencement, and (C) April 1, 2017; and
v) [$280,238] (the “Fifth Installment”) upon (A) State Designation, (B)
deliveryto the Investment Limited Partner of a copy of the executed Deferred Development
Fee Note, (C) Rental Achievement, (D) the Initial Compliance Audit which shows no
material noncompliance (as set forth in Section 12.7(n)), and (E) October 1, 2017;
provided, however, that (x) the General Partner shall give the Investment Limited Partner not less
than twenty-one (21) days’ written notice prior to the due date of each Installment subsequent to
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the First Installment, (y) no Installment shall be due unless and until all conditions to the payment
of all prior Installments have been satisfied, and (z) the full amount of the First Installment of the
Investment Limited Partner’s Capital Contribution (less all amounts approved as reimbursement
for Development Costs on the Admission Date) may be held by the Investment Limited Partner or
Bond Lender and identified for the Apartment Complex (the “First Installment Escrow”).
b) The obligation of the Investment Limited Partner to pay each Installment is
conditioned upon delivery by the General Partner to the Investment Limited Partner of a written
certificate (the “ Payment Certificate”) stating that as of the date of such certificate (i) all the
conditions to the payment of such Installment and each prior Installment have been satisfied, (ii) all
representations and warranties of the General Partner contained in this Agreement are true and
correct and the General Partner is not in default of any of its duties and obligations set forth in this
Agreement and (iii) no event has occurred which suspends or terminates the obligations of the
Investment Limited Partner to pay Installments under this Agreement which has not been cured as
herein provided, (iv) no event has occurred which, with the giving of notice, would oblige the
General Partner to repurchase the Interests of the Investment Limited Partner pursuant to Section
5.2(a). Except as provided in the final sentence of this Section 5.1(b), acceptance by the
Partnership of any Installment shall constitute a confirmation that, as of the date of payment, all
such conditions are satisfied and all such representations and warranties are true and correct. The
obligation of the Investment Limited Partner to pay the First Installment is also conditioned upon
delivery by the General Partner to the Investment Limited Partner of (x) a legal opinion of
independent counsel to the Partnership, the General Partner, and the Developer, which opinion(s)
must be satisfactory to the Investment Limited Partner as to form, content and identity of counsel
and (y) a photocopy of a binding commitment, in form and substance satisfactory to the Special
Limited Partner, to issue the Title Policy and any endorsements thereto in form and substance
reasonably satisfactory to the Special Limited Partner. In no event shall any Installment become
due until all of the conditions for all of the Installments listed prior to the Installment in question
in Section 5.1(a) shall have been satisfied and all of such prior Installments shall have become due.
Notwithstanding the foregoing, however, if at any time prior to the date when an Installment
becomes due and payable, the Partnership has an Operating Deficit which the General Partner
would be required to fund pursuant to Section 6.10 as a result of which the Payment Certificate
cannot be delivered, then, provided that all other conditions to the Installment in question are met,
the Investment Limited Partner may, at its option, waive the requirement of the delivery of the
Payment Certificate or any other condition with respect to part or all of such Installment and pay
such part or all of such Installment, provided that the proceeds of the amount so paid are used by
the Partnership to fully fund such Operating Deficit; provided, however, that if the proceeds of
such amount so paid are designated in Section 6.12 to be used to pay fee(s), then such proceeds
shall be utilized to pay such fee(s) and the recipient(s) thereof shall be required to, and hereby
agree to, utilize the proceeds of such fee(s) to fund such Operating Deficit, in which case the
Investment Limited Partner is hereby authorized to directly fund such Operating Deficit , with the
funds so applied being deemed to have been paid as aforesaid.
c) The Payment Certificate for each Installment shall be dated and delivered not less
than ten (10) nor more than thirty (30) days prior to the due date for such Installment.
d) If, as of the date when an Installment would otherwise be due, any statement
required to be made in the Payment Certificate for such Installment cannot be truthfully made, the
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General Partner shall notify the Investment Limited Partner of the reason why such statement
would be untrue if made, and the Investment Limited Partner shall not be required to pay such
Installment; provided, however, that if (i) any such statement can subsequently be truthfully made
and (ii) the Investment Limited Partner shall not have irrevocably lost, in the good faith judgment
of the Investment General Partner, any material tax or other benefits hereunder (other than tax
benefits for which the Investment Limited Partner has been fully compensated pursuant to the
provisions of paragraphs (e), (f) and (g) of this Section 5.1), then the Investment Limited Partner
shall pay such Installment to the Partnership thirty (30) days after delivery by the General Partner
to the Investment Limited Partner of the Payment Certificate together with an explanation of the
manner in which each such statement had become true.
e) In the event that as of or any time prior to State Designation (the “Initial Adjustment
Date”) or as a result of a subsequent audit, the Investment Limited Partner shall receive a written
certification of the Auditors indicating that the aggregate Actual Credit during the Credit Period
will be less than the aggregate Projected Credit during the Credit Period, then (i) the next
succeeding Installments of the Capital Contributions of the Investment Limited Partner shall be
reduced by an amount equal to the product of (X) the difference between (1) the aggregate
Projected Credit during the Credit Period and (2) the aggregate Actual Credit during the Credit
Period and (Y) 1.07 as to each dollar of Tax Credit, and (ii) the Projected Credit for each Fiscal
Year shall thereafter be redefined to mean the Actual Credit, as so determined (the “Revised
Projected Credit”). Any such reduction pursuant to this Section 5.1(e) shall be made first to the
Installment, if any, next due to be paid by the Investment Limited Partner, and any balance of such
amount payable by the General Partner in excess of the amount of such Installment shall be applied
to succeeding Installments, if any, provided that if the amount of any such reductions exceeds the
sum of the remaining Installments, if any, then an amount equal to the amount of such excess shall
be paid by the General Partner to the Partnership as a Capital Contribution and immediately
distributed to the Investment Limited Partner promptly after demand is made therefor (or, to the
extent such General Partner Capital Contribution would in the opinion of counsel to the Investment
Limited Partner cause tax benefits intended for the Investment Limited Partner to be lost or
reallocated to another Partner, then payments due from the General Partner shall be made, on an
After-Tax Basis, directly to the Investment Limited Partner, as a payment of damages for breach
of warranty), regardless of the reason for the occurrence of such event (unless such reduction was
caused by an act or omission of the Investment Limited Partner or its Affiliates, in which event no
such reduction or payment shall be required). No reduction of any Installment pursuant to this
Section 5.1(e) shall be deemed to be a Capital Contribution by the General Partner to the
Partnership.
f) If for any reason, including without limitation, a Recapture Event, with respect to
any Fiscal Year (except to the extent already accounted for in Section 5.1(e) above) all or a portion
of which occurs before or during the Compliance Period, the Actual Credit is or was less than the
Projected Credit (or the Revised Projected Credit, if applicable) for such Fiscal Year (a “Reduction
Year”), then the General Partner shall pay to the Investment Limited Partner the Reduction
Amount. The Reduction Amount shall be equal to the sum of (A) the excess of the Projected Credit
or the Revised Projected Credit, if applicable) for such Fiscal Year over the Actual Credit for such
Fiscal Year multiplied by 1.07 (provided that in the event a Reduction Amount is due for 2017 and
any of the Projected Credit for such year will be allocable to the Investment Limited Partner in
2027, then for such Reduction Year only 0.70 shall be substituted for 1.07) as to each dollar of
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Tax Credit, plus (B) the Recapture Amount as determined pursuant to Section 10.6 and, to the
extent not already accounted for, any interest or penalties payable by the limited partners of the
Investment Limited Partner as a result of such shortfall or Recapture Event, assuming that each
limited partner of the Investment Limited Partner used all of the Tax Credits allocated to it in the
Fiscal Year of allocation. The Auditors shall make their determination of the amount of the Actual
Credit with respect to each Reduction Year within thirty (30) days following the end of such Fiscal
Year, provided that, if it is known at the time of an event or circumstance causing a Reduction
Year that any or all of the remaining years in the Credit Period also will be Reduction Years as a
result of such event or circumstance, then anyReduction Amount calculable for such future year(s)
shall be paid at the time of the first such Reduction Year. The Investment Limited Partner shall
be eligible to be paid a Reduction Amount as hereinabove described with respect to each Reduction
Year. Any Reduction Amount shall first be applied to the Installment next due to be paid by the
Investment Limited Partner, with any portion of such Reduction Amount in excess of the amount
of such Installment then being applied to succeeding Installments, provided that if no further
Installments remain to be paid or if the Reduction Amount shall exceed the sum of the amounts of
the remaining Installments, then the entire Reduction Amount or the balance of the Reduction
Amount, as the case may be, shall be paid by the General Partner to the Partnership as a Capital
Contribution and immediately distributed to the Investment Limited Partner promptly after
demand is made therefor (or, to the extent such General Partner Capital Contribution would in the
opinion of counsel to the Investment Limited Partner cause tax benefits intended for the Investment
Limited Partner to be lost or reallocated to another Partner, then payments due from the General
Partner shall be made, on an After-Tax Basis, directly to the Investment Limited Partner, as a
payment of damages for breach of warranty), regardless of the reason for the occurrence of such
event (unless such reduction was caused by an act or omission of the Investment Limited Partner
or its Affiliates, in which event no Reduction Amount shall be payable). No reduction of any
Installment pursuant to this Section 5.1(f) shall be deemed to be a Capital Contribution to the
Partnership. Notwithstanding anything to the contrary herein, if for any reason, including without
limitation, a Recapture Event, with respect to any Fiscal Year (except to the extent already
accounted for in Section 5.1(e) above) all or a portion of which occurs before or during the
Compliance Period, the Actual Credit is or was less than the Projected Credit (or the Revised
Projected Credit, if applicable) as a result of a Change in Law, then any amounts due and owing
to the Investment Limited Partner under this Section 5.1(f) as a result thereof shall be paid solely
from first available Cash Flow and Capital Transaction proceeds.
g) In the event that the Investment Limited Partner shall receive a written certification
of the Auditors indicating that the aggregate Actual Credit during the Credit Period will be greater
than the aggregate Projected Credit during the Credit Period, then (i) the final Installment of the
Capital Contributions of the Investment Limited Partner shall be increased by an amount (up to a
maximum amount of $328,000) (the “Investor Increased Amount”) equal to the product of (X) the
difference between (1) the aggregate Actual Credit during the Credit Period as certified by the
Auditors and (2) the aggregate Projected Credit during the Credit Period and (Y) an amount to be
agreed based upon current market pricing as to each dollar of the increased Tax Credits, and (ii)
the Projected Credit for each Fiscal Year shall thereafter be redefined to mean the Revised
Projected Credit, provided, however, that the provisions of this Section 5.1(g) shall not apply in
the event that the Investment Limited Partner does not have sufficient funds to make the additional
Capital Contribution and, after a diligent good faith effort, the Investment Limited Partner cannot
cause any of its Affiliates to make such additional Capital Contribution. Additional Capital
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Contributions made pursuant to this Section 5.1(g) shall be applied first to the payment of the
Development Fee if so required by the Special Limited Partner in its reasonable discretion. If the
Investment Limited Partner elects not to increase the amount of its Capital Contribution by the full
amount of the Investor Increased Amount, in such event, the General Partner’s share of the Profits
and Loss (and, correspondingly, depreciation and Tax Credits) will be increased, and the
Investment Limited Partner’s share decreased, such that the Investment Limited Partner will be
entitled to receive allocations of Tax Credits equal to the Projected Tax Credits plus the Tax Credits
used in the calculation of the actual Investor Increased Amount. The General Partner and
Investment Limited Partner agree to amend this Agreement to reflect any increase in the
Investment Limited Partner’s Capital Contribution or increase in the Gen eral Partner’s share of
Profits and Losses (and, correspondingly, depreciation and Tax Credits), as the case may be.
h) In the event that, as result of accelerated lease-up (and not to the extent already
accounted for in Section 5.1(g) above), the Actual Credit for 2017 is greater than the Projected
Credit for 2017, then the Capital Contribution of the Investment Limited Partner shall be increased
by an amount equal to the product of (A) the difference between (1) the Actual Credit for 2017 as
certified by the Auditors and (2) the Projected Credit for 2017 and (B) 0.30 (the “Upward Timing
Amount”), payable at the time of the payment of the Investment Limited Partner’s Fifth
Installment, provided, however, that in no event will the Investment Limited Partner be obligated
to pay as the Upward Timing Amount more than $25,000.
5.2 Return of Capital Contributions
a) Failure to Achieve Development and/or Tax Credit Benchmarks and Standards.
Upon the occurrence of any of the events (a “Repurchase Event”) listed below in this Section
5.2(a), within five (5) days of the occurrence thereof, the General Partner shall send to the
Investment Limited Partner notice of such event and of the General Partner’s obligation to
repurchase the Interests of the Investment Limited Partner by paying to the Investment Limited
Partner an amount in cash (the “Repurchase Amount”) equal to each such Partner’s Invested
Amount minus the portion, if any, of such Partner’s Capital Contribution which shall not yet have
been paid (or deemed to have been paid) to the Partnership plus the outstanding principal and
accrued interest in respect of any loans made by the Limited Partners to the Partnership and the
amount of any third-party costs, including, without limitation, attorney’s fees incurred by or on
behalf of such Partner in implementing this Section 5.2(a) in the event the Investment Limited
Partner requires such a repurchase plus interest thereon at the long-term AFR commencing on the
fifth (5th) dayafter delivery of the notice referred to in the next sentence. If the Investment Limited
Partner elects to require a repurchase of its Interest and the payment to it of an amount equal to its
Repurchase Amount, it shall send notice thereof to the Partnership within thirty (30) days after the
mailing date of the General Partner’s notice, or at any time after the occurrence of any of the
foregoing if the General Partner shall not have sent a notice thereof, and the General Partner shall
within ten (10) days after the Partnership receives any such notice from a Partner requesting the
purchase of its Interest repurchase the Interest of such Partner by paying to such Partner an amount
equal to its Repurchase Amount. If funds are insufficient, the Interest of the Investment Limited
Partner shall bepurchased first, then the Special Limited Partner Interest shall be purchased. Upon
the payment of the Repurchase Amount to the Investment Limited Partner and the Special Limited
Partner each such Partner shall withdraw as limited partners of the Partnership. If, following
receipt of the General Partner’s notice, any Partner fails to send notice to the General Partner by
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the end of such thirty (30)-day period requesting the General Partner to purchase its Interest, such
Partner, as the case may be, shall be deemed to have waived its right to cause the General Partner
to purchase its Interest as a result of the event described in the General Partner’s notice; provided,
however, such deemed waiver shall not be presumed unless the General Partner shall have first
sent a second notice to such Partner or otherwise confirmed that the first notice was timely received
by such Partner. No such waiver, however, shall affect the right of the Investment Limited Partner
to cause the General Partner to purchase its Interest upon the occurrence of any other event
described in this Section 5.2(a), or upon any subsequent occurrence of the event described in the
General Partner’s notice. The Repurchase Events are as follows:
i) by December 31, 2017 (which date may be extended upon the
circumstances described in Section 5.2(a)(xi)), the Completion Date shall not have
occurred; or
ii) construction or operation of the Apartment Complex shall have been
enjoined by a final order (from which no further appeals are possible) of a court having
jurisdiction and such injunction shall continue for a period of ninety (90) days; or
iii) Permanent Mortgage Commencement shall not have been achieved prior to
the date required pursuant to the Bond Loan Documents; or
iv) if at any time it shall be determined by the Service or by the Tax
Accountants that less than 50% of the Partnership’s basis in the Apartment Complex and
its land shall have been financed with the proceeds of bonds (x) the interest from which is
exempt from federal taxation under Section 103 of the Code, (y) which are taken into
account under Section 146 of the Code and (z) which will be redeemed within a reasonable
period using principal payments on the loans provided from the proceeds of the issuance
of such bonds; or
v) State Designation shall not have occurred by April 15, 2018 (or any later
date fixed by the General Partner with the Consent of the Investment Limited Partner) and
by said date the General Partner shall not have made any payment as described in the next
to last sentence of Section 5.1(e) or, if the Investment Limited Partner shall have elected to
have all or a portion of any payment under Section 5.1(e) applied toward future Installment
obligations of the Investment Limited Partner, amendments to this Agreement shall not
have been adopted and filed in the Filing Office, reflecting such event; or
vi) if by the date which is nine (9) months following the Completion Date,
Rental Achievement shall not have been achieved; or
vii) the Partnership shall fail to meet the Minimum Set-Aside Test or the Rent
Restriction Test by the close of the first year of the Credit Period and/or fails to continue
to meet either of such tests or any other tenant set-asides required by the Credit Agency at
any time during the sixty (60)-month period commencing on such date; or
viii) (A) foreclosure proceedings shall have commenced under any Mortgage
and such proceedings shall not have been dismissed within ninety (90) days, provided
however that, after Rental Achievement, this clause (A) shall continue to be effective only
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if the General Partner is in default of its obligations under Section 5.1(e), 5.1(f) or 6.10,
B) any of the commitments of a Lender to provide a Mortgage Loan and/or any subsidy
financing shall be terminated or withdrawn and not reinstated or replaced within sixty (60)
days with terms at least as favorable to the Partnership or terms for which the Consent of
the Investment Limited Partner and any Requisite Approvals shall have been obtained, or
C) the Bond Lender, acting in good faith and in accordance with the provisions of the
Bond Loan Documents, shall have irrevocably refused to make any further advances under
the Bond Loan Documents and such decision shall not have been reversed or the Bond
Lender replaced within thirty (30) days; or
ix) at any time the General Partner fails to advance Subordinated Loans and
such failure continues for ten (10) days; or
x) any action is commenced to foreclose any mechanics, or any other lien
other than the lien of a Mortgage) against the Apartment Complex and such action has not
within sixty (60) days been either bonded against in such a manner as to preclude the holder
of such lien from having any recourse to the Apartment Complex or to the Partnership for
payment of any debt secured thereby, or affirmatively insured against by the title insurance
policy or an endorsement thereto issued to the Partnership by a reputable title insurance
company (which insurance company will not have indemnity from or recourse against
Partnership assets by reason of any loss it may suffer by reason of such insurance) in an
amount satisfactory to the Investment Limited Partner; or
xi) a casualty occurs resulting in substantial destruction of all or a portion of
the ApartmentComplex, and the insurance proceeds (if any) (together with additional grant
or loan funds secured by the General Partner and funds that the General Partner or an
Affiliate may elect to make available) are insufficient to restore the Apartment Complex
within twenty-four (24) months following such casualty; or
xii) at any time prior to Rental Achievement, an action is commenced to
abandon or permanently enjoin the construction of the Apartment Complex; or
xiii) a final determination by the Tax Accountants that the Investment Limited
Partner shall be allocated less than 70% of the Projected Credit during the Credit Period.
b) Lender/Agency Disapproval. If any Agency or Lender shall disapprove, or fail to
give any required approval of, the Investment Limited Partner and/or the Special Limited Partner
as a Limited Partner hereunder within one hundred eighty (180) days of the Admission Date, then
the Partner being disapproved or not approved shall, effective as of such time or such later time
as may be elected by the Partner being disapproved or not approved as may be specified by such
Agencyor Lender in its disapproval, at the option of the Partner being disapproved or not approved
if not directed by such Agencyor Lender to withdraw), cease to be a Limited Partner. The General
Partner shall, within ten (10) days of the effective date of such cessation, pay to the Partner being
disapproved or not approved an amount equal to its paid-in Capital Contributions and the
outstanding balance of any loans made by the Limited Partners to the Partnership plus the amount
of any third party costs, including, but not limited to attorney’s fees, incurred by or on behalf of
such Partner in implementing this Section 5.2(b).
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c) Substitution and Indemnification. Upon the receipt by the Investment Limited
Partner and/or the Special Limited Partner of the amount due to it pursuant to either Section 5.2(a)
or Section 5.2(b), the Interest of such Partner shall terminate, and the General Partner shall
indemnify and hold harmless such Partner from and against any Adverse Consequences to which
such Partner (as a result of its participation hereunder) may be subject, provided that such Adverse
Consequences do not result from such Partner’s acts or omissions.
d) Waiver of Repurchase Right. Each of the Investment Limited Partner and the
Special Limited Partner shall have the right to irrevocably waive its right to have its Interest
repurchased pursuant to any clause or clauses of Section 5.2(a), or any portion thereof, at any time
during which any of such rights shall be in effect. Such a waiver shall be exercised by delivery to
the General Partner of a written notice statingthat the rights being waived pursuant to any specified
clause or clauses of Section 5.2(a), or any specified portion thereof, are thereby waived for a
specified period of time.
e) Additional General Partner. If the General Partner shall fail to make on the due
date therefor any payment required under Section 5.2(a) or Section 5.2(b), time being of the
essence, at any time thereafter the Special Limited Partner shall have the option, exercisable in its
sole discretion, to cause itself or its designee to be admitted as an additional General Partner,
receiving from the existing General Partner, in consideration of the payment of ten dollars
10.00), an interest in the Profits, Losses, Tax Credits and distributions of the Partnership
sufficient in the opinion of counsel to the Special Limited Partner to cause the Special Limited
Partner to become a General Partner of the Partnership, with the Special Limited Partner retaining
its status as such and its economic interest in the Partnership as the Special Limited Partner (or its
designee as an additional General Partner). If the Special Limited Partner exercises the option
described in this Section 5.2(e), each of the other General Partners hereby agrees that all of its
rights and powers hereunder as a General Partner shall automatically be irrevocably delegated to
the Special Limited Partner pursuant to Section 6.13 without the necessity of any further action by
any Partner. Each Partner hereby grants to the Special Limited Partner an irrevocable (to the extent
permitted by applicable law) power of attorney coupled with an interest to take any action and to
execute, deliver and file or record any and all documents and instruments on behalf of such Partner
and the Partnership as the Special Limited Partner may deem necessary or appropriate in order to
effectuate the provisions of this Section 5.2(e) and to allow the additional General Partner to
manage the business of the Partnership. The admission of the Special Limited Partner or its
designee as an additional General Partner shall not relieve any other General Partner of any of its
economic obligations hereunder, and each other General Partner shall fully indemnify and hold
harmless the additional General Partner on an After-Tax Basis from and against any and all
Adverse Consequences sustained by such additional General Partner in connection with its status
as a General Partner (other than Adverse Consequences arising solely from the gross negligence
or willful misconduct of such additional General Partner) for so long as such additional General
Partner remains a General Partner of the Partnership. Any such additional General Partner shall
withdraw (notwithstanding the provisions of Article VII), as such and remain only as the Special
Limited Partner upon the payment of all amounts due under Sections 5.2(a) and 5.2(b).
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ARTICLE VI
Rights, Powers and Duties of General Partner
6.1 Authorized Acts
Subject to the provisions of Section 6.2, Section 6.3, Section 6.15 and all other provisions
of this Agreement, the General Partner for, in the name and on behalf of the Partnership, is hereby
authorized, in furtherance of the purposes of the Partnership:
i) to acquire by purchase, lease, exchange or otherwise any real or personal
property;
ii) to construct, rehabilitate, operate, maintain, finance and improve, and to
own, sell, convey, assign, mortgage or lease any real estate and any personal property;
iii) to borrow money and issue evidences of indebtedness and to secure the
same by mortgage, pledge or other lien on the Apartment Complex or any other assets of
the Partnership;
iv) to execute the Mortgage Loan Documents and the other Project Documents
and all such other documents as the General Partner deems to be necessary or appropriate
in connection with the acquisition, development, construction and financing of the
Apartment Complex;
v) subject to Section 3.2, to prepay in whole or in part, refinance or modify
any Mortgage Loan or other financing affecting the Apartment Complex;
vi) to employ theManagement Agent (which may be an Affiliate of the General
Partner) and, subject to the provisions of Article XI, to pay reasonable compensation for
its services;
vii) to employ its Affiliates to perform services for, or sell goods to, the
Partnership provided that (except with respect to any contract specifically authorized by
this Agreement) the terms of any such transaction with an Affiliate shall not be less
favorable to the Partnership than would be arrived at by unaffiliated parties dealing at arms’
length;
viii) to execute contracts with any Agency, the State or any subdivision or
agency thereof or any other Governmental Authority to make apartments or tenants in the
Apartment Complex eligible for any public-subsidy program;
ix) to execute leases of some or all of the apartment units of the Apartment
Complex to individuals and/or to a public housing authority and/or to a non-profit
corporation, cooperative or other non-profit Entity;
x) to employ or engage such engineers, architects, technicians, accountants,
attorneys and other Persons, as may be necessary, convenient or incidental to the
accomplishment of the purposes of the Partnership; and
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xi) to enter into any kind of activity and to perform and carry out contracts of
any kind which may be lawfully carried on or performed by a partnership and to file all
certificates and documents which may be required under the laws of the State.
6.2 Restrictions on Authority
a) Notwithstanding any other Section of this Agreement, neither the General Partner
nor the Class B Limited Partner shall have authority to perform any act in violation of the Act, any
other applicable law, Agency or other government regulations, the requirements of any Lender, or
the Project Documents. In the event of any conflict between the terms of this Article VI and any
applicable Regulations or requirements of any Lender, the terms of such Regulations or the
requirements of such Lender, as the case may be, shall govern. Subject to the provisions of Section
6.2(b), the General Partner, acting in its capacity as General Partner, either on its own behalf or on
behalf of the Partnership, shall not have the authority, without the Consent of the Special Limited
Partner:
i) to have unsecured borrowings in excess of twenty thousand dollars
20,000.00) in the aggregate at any one time outstanding, except ordinary accounts
payable and borrowings constituting Subordinated Loans;
ii) to borrow funds from the Partnership or commingle Partnership funds with
the funds of any other Person;
iii) following the Completion Date, to construct any new or replacement capital
improvements on the Apartment Complex which substantially alter the character or use of
the Apartment Complex or which cost in excess of twenty-five thousand dollars
25,000.00) in a single Fiscal Year, except (x) replacements and remodeling in the
ordinary course of business or under emergency conditions or (y) construction paid for
from insurance proceeds;
iv) to acquire any real property in addition to the Apartment Complex;
v) to borrow the CHFA Loan on terms other than the Permanent Loan
Conditions or to increase, decrease or modify the terms of or refinance any Mortgage Loan;
vi) to rent apartments in the Apartment Complex such that the Apartment
Complex would not meet the requirements of the Minimum Set-Aside Test or the Rent
Restriction Test;
vii) except as specifically contemplated by the Purchase Option, to sell,
exchange or otherwise convey or transfer the Apartment Complex or substantially all the
assets of the Partnership;
viii) to terminate any Material Agreement;
ix) to permit an Event of Bankruptcy with respect to the Partnership;
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x) except for the Project Documents, to execute contracts with any Agency,
the State or any subdivision or agency thereof or any other Governmental Authority to
make apartments or tenants in the Apartment Complex eligible for any project-based
public-subsidy program;
xi) to amend any construction or rehabilitation contract other than in
connection with permitted change orders;
xii) to pledge or assign any of the Capital Contributions of the Investment
Limited Partner or the proceeds thereof (except to the extent required by the terms of the
Bond Loan Documents and agreed to in writing by the Special Limited Partner);
xiii) to amend or terminate any Project Document;
xiv) to approve any material changes to the Plans and Specifications for the
Apartment Complex or make any changes which would result, either individually or in the
aggregate, in an overall development cost increase or decrease in excess of $75,000;
xv) to permit the merger, consolidation, acquisition, termination or dissolution
of the Partnership;
xvi) to do any act required to be approved or ratified by all limited partners under
the Act;
xvii) to admit any additional Partner to the Partnership;
xviii) to make any discretionary capital calls;
xix) to confess any judgment on behalf of the Partnership;
xx) to cause the Partnership to institute, settle, compromise, mediate or
otherwise relinquish any claim (actual or prospective), or to release, waive ordiminish any
material Partnership rights in any litigation or arbitration matter involving a claim in excess
of $25,000;
xxi) to change the nature of the Partnership’s business;
xxii) to grant any approval or consent on behalf of the Partnership under the
Project Documents that would have a material adverse effect on the Partnership or the
Limited Partners;
xxiii) to make any decision not to repair or rebuild in the case of material damage
to or condemnation of the Apartment Complex;
xxiv) to do any act which is in contravention or inconsistent with this Agreement,
the Extended Use Agreement or the Project Documents;
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xxv) to make, amend or revoke any tax election required of or permitted to be
made by the Partnership under the Code, including, without limitation, any election under
Section 42 or Section 754 of the Code. In this regard, the General Partner shall make any
elections required or permitted under Section 42 of the Code requested in writing by the
Investment Limited Partner;
xxvi) to change any accounting method or practice of the Partnership, except as
required by law or by applicable accounting principles, or terminate or replace the
Auditors;
xxvii) to take any action (or fail to take any action) which would cause or result in
a breach of any of the representations, warranties or covenants of the General Partner set
forth in this Agreement, including, without limitation, those set forth in Section 6.6;
xxviii)to deposit any Partnership funds in any bank, savings and loan or other
financial institution whose accounts are not fully insured by the Federal Deposit Insurance
Corporation or are not subject to the Public Deposit Protection Act;
xxix) to make any single expenditure of more than $10,000 or any total annual
expenditures greater than $50,000 which are not consistent with operating budget provided
to the Special Limited Partner pursuant to Article XII of this Agreement, or make any
material modification to any operating budget;
xxx) to hire any employees for any purpose;
xxxi) to receive or allow any rebate or give-up or participate in any reciprocal
business arrangements which would circumvent the provisions hereof; or
xxxii) execute any Deferred Development Fee Note.
b) In the event that any General Partner violates any provision of Section 6.2(a) and
does not cure such violation within thirty (30) days following notice from the Special Limited
Partner, the Special Limited Partner in its sole discretion and without prejudice to its rights under
Sections 4.5(b) and 7.6(a), may cause itself or its designee to be admitted as an additional General
Partner without any further action by any other Partner. Upon any such admission of an additional
General Partner, each existing General Partner shall be deemed to have assigned proportionally to
the additional General Partner, automatically and without further action, such portion of its General
Partnership Interest so that the additional General Partner shall receive an interest in the Profits,
Losses, Tax Credits and distributions of the Partnership sufficient in the opinion of counsel to the
Special Limited Partner to cause such additional General Partner to be a Partner of the Partnership,
in consideration of one dollar ($1.00) and any other consideration which may be agreed upon. An
additional General Partner so admitted shall automatically become the Managing General Partner
and shall be irrevocably delegated all of the power and authority of all of the General Partner
pursuant to Section 6.13. Any such additional General Partner shall have the right to withdraw as
a General Partner at any time, leaving the prior General Partner once again as the only General
Partner, the provisions of Article VII notwithstanding. Each Partner hereby grants to the Special
Limited Partner a special power of attorney, irrevocable to the extent permitted by law and coupled
with an interest, to amend this Agreement and to do anything else which, in view of the Special
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Limited Partner, may be necessary or appropriate to accomplish the purposes of this Section 6.2(b)
or to enable any additional General Partner admitted pursuant to this Section 6.2(b) to manage the
business of the Partnership. The admission of an additional General Partner shall not relieve any
other General Partner of any of its economic obligations hereunder, and each other General Partner
on an After-Tax Basis shall fully indemnify and hold harmless the additional General Partner from
and against any and all Adverse Consequences sustained by the additional General Partner in
connection with its status as a General Partner (other than Adverse Consequences arising solely
from the gross negligence or willful misconduct of such additional General Partner).
6.3 Personal Services; Other Business Ventures
No General Partner or Class B Limited Partner or Affiliate thereof shall receive any salary
or other direct or indirect compensation for any services or goods provided in connection with the
Partnership or the Apartment Complex, except as may be specifically provided in Section 6.12,
Section 6.15 and Article XI, in connection with the Bond Loan, or as to which the Consent of the
Special Limited Partner shall have been obtained to the precise terms thereof prior to the
commencement of such services or the provision of such goods. Nothing in this Section 6.3 shall
prohibit or limit the payment of salary or other compensation to officers, directors or employees
of the City or the Housing Authority and who have not been directly engaged in such capacity by
the Partnership. Any Partner may engage independently or with others in other business ventures
of every nature and description, including the ownership, operation, management, syndication and
development of real estate; neither the Partnership nor any other Partner shall have any rights in
and to such independent ventures or the income or profits derived therefrom.
6.4 Business Management and Control
a) Subject to the provisions of this Agreement, the General Partner shall have the
exclusive right to control the business of the Partnership. If at any time there is more than one
General Partner, the powers and duties of the General Partners hereunder shall be exercised in the
first instance by a Managing General Partner who, subject to the terms and provisions of this
Agreement, shall manage the business and affairs of the Partnership. The Managing General
Partner may bind the Partnership by executing and delivering, in the name and on behalf of the
Partnership, any documents which this Agreement authorizes the General Partners to execute
hereunder without the requirement that any other General Partner execute such documents. The
initial Managing General Partner shall be the City; if it is unwilling or unable to serve in such
capacity or shall cease to be a General Partner, the remaining General Partners may from time to
time designate a new Managing General Partner. If for any reason no designation is in effect, the
powers of the Managing General Partner shall be exercised by a majority in interest of the General
Partners. Any action required or permitted to be taken by a corporate General Partner hereunder
may be taken by such of its proper officers or agents as it shall validly designate for such purpose.
b) Subject to Section 6.2 and the other provisions of this Agreement, the Managing
General Partner shall have control over the business of the Partnership and shall have all rights,
powers and authority conferred by law as necessary, advisable or consistent in connection
therewith. Without limiting the generality of the foregoing, the Managing General Partner shall
have the right, power and authority to execute any documents relating to the acquisition, financing,
rehabilitation, operation and sale of all or any portion of the Apartment Complex with the prior
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approval of the other General Partners, if any. The Managing General Partner shall be responsible
for administering anyconstruction-phase loan draw requests for the development of the Apartment
Complex.
c) Neither the Investment Limited Partner, the Special Limited Partner, nor the Class
B Limited Partner shall have any right to take part in the management or control of the business
of the Partnership or to transact any business in the name of the Partnership. No provision of this
Agreement which makes the Consent of the Investment Limited Partner or the Consent of the
Special Limited Partner a condition for the effectiveness of an action taken by the General Partner
is intended, and no such provisions shall be construed, to give the Investment Limited Partner or
the Special Limited Partner, as the case may be, any participation in the control of the Partnership
business. Each of the Special Limited Partner and the Investment Limited Partner hereby consents
to the exercise by the General Partner of the powers conferred on it by law and this Agreement,
and the General Partner agrees to exercise control of the business of the Partnership only in
accordance with the provisions of this Agreement. Notwithstanding the foregoing, in no event
may the provisions of this Section 6.4 be invoked by any General Partner or by any other Person
as a defense against or as an impediment to the ability of either the Investment Limited Partner or
the Special Limited Partner to take any action hereunder.
6.5 Duties and Obligations
a) The General Partner shall manage the affairs of the Partnership to the best of its
ability, shall use its best efforts to carry out the purpose of the Partnership, and shall devote to the
Partnership such time as may be necessary for the proper performance of its duties and the business
of the Partnership. The General Partner shall promptly take all action which may be necessary or
appropriate for the proper development, construction, maintenance and operation of the Apartment
Complex in accordance with the provisions of this Agreement, the Project Documents and any
applicable laws and Regulations. The General Partner is responsible for the management and
operation of the Partnership, including the oversight of the rent-up and operational stages of the
Apartment Complex.
b) Subject to the provisions of Section 6.5(g), the General Partner shall use its diligent
good faith efforts to cause the Partnership to generate Cash Flow for distribution to the Partners at
the maximum realizable level in view of (i) any applicable Regulations, (ii) the Minimum Set -
Aside Test, (iii) the Rent Restriction Test and (iv) the Projected Rents, and, if necessary, the
General Partner also shall use reasonable efforts, consistent with the restrictions identified
previously in this sentence, to obtain approvals and implementation of appropriate adjustments in
the rental schedule of the Apartment Complex; provided, that the General Partner may phase in
permitted increases over a reasonable period of time.
c) The General Partner shall cause the Partnership to obtain and keep in force, during
the term of the Partnership, insurance policies in accordance with the Insurance Requirements set
forth on Exhibit D hereto. Throughout the term of the Partnership, the General Partner shall
provide copies of all such policies (or binders) to the Investment Limited Partner within thirty (30)
days after their receipt thereof. The General Partner shall cause the applicable insurer to name the
Investment Limited Partner as an “additional insured” on each Partnership insurance policy. Each
Partnership insurance policy shall include a provision requiring the insurance company to notify
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the Investment Limited Partner in writing no less than thirty (30) days prior to any cancellation,
non-renewal or material change in the terms and conditions of coverage. The General Partner shall
review regularly all of the Partnership and Apartment Complex insurance coverage to insure that
it is adequate and continuing. In particular, the General Partner shall review at least annually the
insurance coverage required by this Section 6.5(c) to insure that it is in an amount at least equal to
the then current full replacement value of the Apartment Complex.
Without limitation of the foregoing, the General Partner shall deliver to the Investment
Limited Partner on or before the Admission Date one or more certificates or memoranda of
insurance, in form reasonably acceptable to the Investment Limited Partner, evidencing, (i) the
existence of the insurance policies and coverages specified on Exhibit D, (ii) that the Partnership
and its Partners (including the Investment Limited Partner) are named insured on such policies,
and (iii) that such insurance policies will not be cancelled by the insurers except within thirty (30)
days’ written notice to the Investment Limited Partner. From time to time following the Admission
Date, the General Partner shall deliver to the Investment Limited Partner such further certificates
or memoranda of insurance as the Investment Limited Partner may reasonably require to confirm
that such insurance and notice provisions with respect to insurance under this Agreement have
been complied with.
d) If at any time there is more than one General Partner, the obligations of the General
Partners hereunder shall be the joint and several obligations of each General Partner. Except as
otherwise provided in Sections 4.5(b) and 7.1, such obligations shall survive any Withdrawal of a
General Partner from the Partnership.
e) (i) The General Partner shall on the Completion Date establish and thereafter
maintain reasonable reserves (the “ Replacement Reserve”) to provide for working capital needs,
improvements, replacements and any other contingencies of the Partnership. At a minimum, the
General Partner shall cause the Partnership to annually deposit $14,000 from Cash Flow into the
Replacement Reserve (which requirement shall be offset against and not be in addition to any
similar capital replacement reserve requirement of any Lender); to the extent that Cash Flow (as
determined before deduction of such reserve deposit) for any Fiscal Year shall be insufficient to
make such deposit in full, the payment obligation may be deferred for up to three years, with all
deferred payments accruing, and thereafter the General Partner shall fund such shortfall from its
own funds as a Subordinated Loan, which obligation to advance Subordinated Loans under this
Section 6.5(e)(i) shall neither be subject to, nor limited by, the Subordinated Loan Period and the
Subordinated Loan Cap.
ii) In addition to the requirements of Section 6.5(e)(i), in order to fund
Operating Deficits, the General Partner (or its designee), shall upon the satisfaction of the
conditions to the payment of the Fourth Installment deposit [$122,190] (the “Minimum Balance”)
into a segregated reserve account ( the “Operating Reserve”) to secure the General Partner’s
obligation to fund Operating Deficits. Funds held in the Operating Reserve may be released to
pay operating expenses only after Rental Achievement and with the reasonable approval of the
Special Limited Partner. The Operating Reserve may be terminated by the General Partner and
upon such termination the funds, if any, remaining in the Operating Reserve shall be released and
distributed as Cash Flow in accordance with the provisions of Section 10.2(a), upon the end of the
Compliance Period. Any funds utilized from the Operating Reserve to pay Partnership operating
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expenses shall not constitute Subordinated Loans. Upon the utilization of such funds from the
Operating Reserve, the General Partner shall redeposit Partnership funds in the Operating Reserve
in an amount sufficient to maintain the Minimum Balance as provided in Section 10.2(a).
f) Each General Partner shall be bound by the provisions of the Project Documents,
and no additional General Partner shall be admitted if he, she or it has not first agreed to be bound
by this Agreement (and assume the obligations of a General Partner hereunder) and by the Project
Documents to the same extent and under the same terms as each of the other General Partners.
g) The General Partner shall take all actions appropriate to ensure that the Investment
Limited Partner receives the full amount of the Projected Credit, including, without limitation, the
rental of apartments to appropriate tenants and the filing of annual certifications as may be
required. In this regard, the General Partner shall, inter alia, cause (i) the Partnership to satisfy the
Minimum Set-Aside Test, the Rent Restriction Test and all other requirements imposed from time
to time under the Code, or otherwise by the Credit Agency with respect to rental levels and
occupancy by qualified tenants by the close of the first year of the Credit Period and throughout
the Compliance Period so as to permit the Partnership to be entitled to the maximum available Tax
Credit (ii) the Partnership to comply with all Tax Credit monitoring procedures of the State, (iii)
all dwelling units in the Apartment Complex to be leased for initial periods of not less than six
months to individuals satisfying the Rent Restriction Test, (iv) the Partnership to make all
appropriate Tax Credit elections in a timely fashion, and (v) all rental units in the Apartment
Complex to be of equal quality with comparable amenities available to low-income tenants on a
comparable basis without separate fees.
h) On or before the Admission Date, the General Partner shall provide to the Special
Limited Partner either (i) an appraisal of the Apartment Complex prepared by a competent
independent appraiser or (ii) completed RECD Forms 1924-13 (estimate and certificate of actual
cost) and 1930-7 (statement of budget, income and expense) or HUD project cost and budget
analysis on Form 2264, or any successor RECD or HUD form, any comparable form of a state or
other Governmental Authority, including any applicable Credit Agency, setting forth estimates
with respect to construction, rehabilitation and mortgage financing costs and initial rental income
and operating expense figures for the Apartment Complex.
i) The General Partner shall (i) not store or dispose of (except in compliance with all
laws, ordinances, and regulations pertaining thereto) any Hazardous Material at the Apartment
Complex, or at or on any other Site or Vessel owned, occupied, or operated either by any General
Partner, any Affiliate of a General Partner, or any Person for whose conduct any General Partner
is or was responsible; (ii) neither directly nor indirectly transport or arrange for the transport of
any Hazardous Material (except in compliance with all laws, ordinances, and regulations
pertaining thereto); (iii) provide the Investment Limited Partner with written notice (x) upon any
General Partner’s obtaining knowledge of any potential or known release, or threat of release, of
any Hazardous Material at or from the Apartment Complex or any other Site or Vessel owned,
occupied, or operated by any General Partner, any Affiliate of a General Partner or any Person for
whose conduct any General Partner is or was responsible or whose liability may result in a lien on
the Apartment Complex; (y) upon any General Partner’s receipt of any notice to such effect from
any federal, state, or other Governmental Authority; and (z) upon any General Partner’s obtaining
knowledge of any incurrence of any expense or loss by any such government authority in
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connection with the assessment, containment, or removal of any Hazardous Material for which
expense or loss any General Partner may be liable or for which expense or loss a lien may be
imposed on the Apartment Complex. Nothing in this Section 6.5(i) shall prevent the use or storage
at the Apartment Complex of reasonable quantities of fuels, cleaning materials or lubricants in
connection with the operation of the Apartment Complex.
j) The General Partner shall promptly request in writing of the Permanent Lender that
the Permanent Lender cause the Special Limited Partner to be named as an “interested party” in
the Permanent Loan Documents, so that the Permanent Lender will notify the Special Limited
Partner of any default under the Permanent Mortgage or the General Partner shall itself notify the
Special Limited Partner of any such default.
k) The General Partner shall provide the Special Limited Partner with a true and
accurate copy of each construction period requisition and any supporting documents and
information which has been submitted for approval by the Bond Lender (whethersubmitted before
or after the Admission Date).
l) The General Partner shall have a fiduciary responsibility for the safekeeping and
use of all funds and assets of the Partnership, whether or not in its immediate possession or control.
The General Partner shall not employ, or permit another to employ, such funds or assets in any
manner except for the exclusive benefit of the Partnership. No General Partner shall contract away
the fiduciary duty owed at common law to the Limited Partners or to the Class B Limited Partner.
m) The General Partner shall cause the Partnership to comply with all of the duties and
obligations of the Apartment Complex owner under the Permanent Loan Documents and shall
provide any funds required in excess of available Cash Receipts or Specified Proceeds necessary
to comply with such duties and obligations.
n) The General Partner shall cause the Partnership to provide all social services which
the Partnership is obligated to provide in connection with the Apartment Complex, including,
without limitation, any such social services described in the Partnership’s Tax Credit application.
In addition to the foregoing, the General Partner shall take all action necessary to cause the
Partnership to pay all amounts incurred by the Partnership in connection with the provisions of
any such social services.
o) The General Partner will cause the payment for the rehabilitation of the Apartment
Complex to be made in conformity with the requirement of any so-called “Davis-Bacon” or other
prevailing wage statutes, as required by any Lender of a Mortgage Loan or any Project Document.
p) The General Partner will cause the Partnership to rent all units so as to maintain at
all times the Agreed-Upon Set-Aside and the Minimum Set-Aside.
q) Unless the Special Limited Partner consents in writing otherwise, the General
Partner shall cause the Partnership to depreciate (i) 9% of the residential portion of the Apartment
Complex over 27.5 years, 9% of the other site improvements over 15 years and 9% of all personal
property of the Partnership over 5 years and (ii) 91% of the residential portion of the Apartment
Complex over 40 years, 91% of other site improvements over 20 years and 91% of all personal
property of the Partnership over 9 years.
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6.6 Representations and Warranties
The General Partner jointly and generally represents and warrants to the Investment
Limited Partner and the Special Limited Partner and (to the extent specified below) the Class B
Limited Partner as follows:
a) The Partnership is a duly organized limited partnership validly existing and in good
standing under the laws of the State and has complied with all filing requirements necessary for
its existence and to preserve the limited liability of the Investment Limited Partner and the Special
Limited Partner.
b) No event or proceeding has occurred or is pending or, is to the Best Knowledge of
the General Partner, threatened which would (i) materially adversely affect the Partnership or its
properties, or (ii) materially adversely affect the ability of the General Partner or any of its
Affiliates to perform their respective obligations hereunder or under any other agreement with
respect to the Apartment Complex, other than legal proceedings which have been bonded against
without recourse to Partnership assets in such manner as to stay the effect of the proceedings or
otherwise have been adequately provided for. This subparagraph shall be deemed to include,
without limitation, the following: (w) the occurrence and continuation of a Material Event; (x)
legal actions or proceedings before any court, commission, administrative body or other
Governmental Authority having jurisdiction over the zoning applicable to the ApartmentComplex;
y) labor disputes; and (z) acts of any Governmental Authority.
c) No default (or event which, with the giving of notice or the passage of time or both,
would constitute a default) has occurred and is continuing under this Agreement or under any
material provision of the Project Documents, and the Project Documents are in full force and
effect.
d) Except as specifically permitted under Section 3.1, no Partner or Related Person
bears (or will bear) the Economic Risk of Loss with respect to the Permanent Mortgage Loan. No
General Partner has, either on its own behalf or on behalf of the Partnership, incurred any financial
obligation with respect to the Partnership prior to the Admission Date, other than as disclos ed in
writing to the Special Limited Partner prior to the Admission Date.
e) The Apartment Complex will be, is being, or has been constructed in a timely
manner in conformity with the Project Documents. There is no violation by the Partnership or the
General Partner of any zoning, environmental or similar regulation applicable to the Apartment
Complex which could have a material adverse effect thereon, and the Partnership has complied
and will comply with all applicable municipal and other laws, ordinances and regulations relating
to such construction and use of the Apartment Complex. All appropriate public utilities, including,
but not limited to, water, electricity, gas (if called forin the Plans and Specifications), and sanitary
and storm sewers, are or will be available and operating properly for each unit in the Apartment
Complex at the time of the initial occupancy of such unit.
f) The Partnership owns good and marketable fee simple title to the Apartment
Complex and will at all times be considered to be the owner of the Apartment Complex for federal
income tax purposes, subject to no material liens, charges or encumbrances other than those which
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i) are both permitted by the Project Documents and are noted or excepted in the Title Policy, (ii)
do not materially interfere with use of the Apartment Complex (or any part thereof) for its intended
purpose or, other than the permitted Mortgages, have a material adverse effect on the value of the
Apartment Complex, or (iii) have been bonded or insured against in such a manner as to preclude
the holder of such lien or such surety or insurer from having any recourse to the Apartment
Complex or the Partnership for payment of any debt secured thereby, which bond(s) or insurance
have been approved by the Lenders.
g) The General Partner has provided the Limited Partners with true, complete and
correct copies of all material correspondence and contracts with, applications to, and allocation
certifications, if any, from the City, in its capacity as Permanent Lender, concerning the Permanent
Loans. The Permanent Loan Documents are binding and in full force and effect in accordance
with their respective terms.
h) The General Partner has provided the Limited Partners and the Class B Limited
Partner with true, complete and correct copies of all material correspondence and contracts with,
applications to, and allocation certifications, if any, from any Credit Agency concerning the Tax
Credits allocated or otherwise available to the Apartment Complex.
i) The execution and delivery of all instruments and the performance of all acts
heretofore or hereafter made or taken pertaining to the Partnership or the Apartment Complex by
each Affiliate of a General Partner which is a corporation or limited liability company have been
or will be duly authorized by all necessary corporate or other actions, and the consummation of
any such transactions with or on behalf of the Partnership will not constitute a breach or violation
of, or a default under, the charter or by-laws of such Affiliate or any agreement by which such
Affiliate or any of its properties is bound, nor constitute a violation of any law, administrative
regulation or court decree.
j) Any General Partner (or partner or member of a General Partner) which is a
corporation or limited liability company (a “Corporation/LLC”) has been duly organized, is validly
existing and in good standing under the laws of its state of organization and has all requisite
corporate and other power to be a General Partner and to perform its duties and obligations as
contemplated by this Agreement and the Project Documents. Neither the execution and delivery
by any Corporation/LLC of this Agreement nor the performance of any of the actions of any
Corporation/LLC contemplated hereby has constituted or will constitute a violation of (a) the
articles of incorporation, operating agreement, by-laws and any other organizational documents
of such Corporation/LLC, (b) any agreement by which such Corporation/LLC is bound or to which
any of its property or assets is subject, or (c) any law, administrative regulation or court decree.
k) No Event of Bankruptcy has occurred with respect to the Partnership, the Managing
General Partner, or the Developer.
l) All accounts of the Partnership required to be maintained under the terms of the
Project Documents, including, but not necessarily limited to, any account for replacement
reserves, are currently funded to the levels required by any Agency or Lender.
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m) The General Partner has and shall at all times maintain a net worth which satisfies
the Designated Net Worth Requirements.
n) All anticipated payments and expenses required to be made or incurred in order to
complete the construction of the Apartment Complex in conformity with the Project Documents,
to fund any reserves hereunder or under any other Project Document required to be funded at or
prior to the later of the Admission Date or Rental Achievement, to satisfy all requirements under
the Project Documents and to pay the Development Fee and all other fees, have been or will be
paid or provided for utilizing only (i) the funds available from the Bond Loan, the Seller Loan and
the City Loan, (ii) the Capital Contributions of the Investment Limited Partner, (iii) the Capital
Contributions of the General Partner in the amounts set forth on Schedule A as of the Admission
Date, (iv) the available net rental income, if any, earned by the Partnership prior to Rental
Achievement (to the extent that it is permitted to be used for such purposes by any Agency or
Lender), (v) any Cash Flow generated subsequent to Rental Achievement (to the extent provided
in Section 10.2(a)), (vi) any insurance proceeds and (vii) any funds furnished by the General
Partner pursuant to Sections 6.5(e) and 6.11(a).
o) The aggregate amount of Tax Credit which is expected to be allocated by the
Partnership to the Investment Limited Partner is as set forth in the definition of Projected Credit,
provided, however, that the General Partner shall have no liability to the Investment Limited
Partner or the Special Limited Partner for any breach of the representation contained in this
paragraph (m) if (but only to the extent that) the adjuster provisions set forth in Sections 5.1(e), (f)
and (g) have become operative and all required payments or adjustments have been made
thereunder in accordance with the terms thereof.
p) The Apartment Complex will be, is being or has been constructed and operated in
a manner which satisfies Section 42 of the Code and shall continue to satisfy all existing and
anticipated restrictions applicable to projects generating Tax Credits.
q) No General Partner, Affiliate of a General Partner or Person for whose conduct any
General Partner is or was responsible has ever: (i) owned, occupied, or operated a Site or Vessel
on which any Hazardous Material was or is stored, transported, or disposed of, except if such
storage, transport or disposition was and is at all times in compliance with all laws, ordinances,
and regulations pertaining thereto; (ii) directly or indirectly transported, or arranged for transport,
of any Hazardous Material (except if such transport was and is at all times in compliance with all
laws, ordinances and regulations pertaining thereto); (iii) caused or was legally responsible for any
release or threat of release of any Hazardous Material; (iv) received notification from any federal,
state or other Governmental Authority of (x) any potential, known, or threat of release of any
Hazardous Material from the Apartment Complex or any other Site or Vessel owned, occupied, or
operated by any General Partner, by any Affiliate of a General Partner, or by any Person for whose
conduct any General Partner is or was responsible or whose liability may result in a lien on the
Apartment Complex; or (y) the incurrence of any expense or loss by any such Governmental
Authority or by any other Person in connection with the assessment, containment, or removal of
any release or threat of release of any Hazardous Material from the Apartment Complex or any
such Site or Vessel.
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r) To the Best Knowledge of the General Partner, no Hazardous Material was ever or
is now stored on, transported, or disposed of on the land comprising the Apartment Complex,
except to the extent any such storage, transport or disposition was at all times in compliance with
all laws, ordinances, and regulations pertaining thereto. The General Partner has provided to the
Investment Limited Partner a complete copy of a “ Phase I” hazardous waste site assessment report
for the Apartment Complex, prepared in accordance with ASTM standards.
s) The General Partner has fulfilled and will continue to fulfill all of its duties and
obligations under Section 6.5.
t) The General Partner has completed or will complete on a timely basis all of the Due
Diligence Recommendations.
u) Certifications have been obtained or will be obtained in a timely fashion from the
CreditAgency and the Issuer, to the extentrequired in accordance with CodeSections 42(m)(1)(D)
and 42(m)(2)(D), which confirm their determinations that (i) the Apartment Complex satisfies the
requirements for allocation of Tax Credits under the qualified allocation plan applicable to the area
in which the Apartment Complex is located, and (ii) the Tax Credits to be claimed with respect to
the Apartment Complex do not exceed the amount necessary for the financial feasibilit y of the
Apartment Complex and its viability as a qualified low-income housing project throughout the
Compliance Period.
v) At least 50% of the aggregate basis of the improvements and land comprising the
Apartment Complex has been or will be financed by the proceeds of bonds (i) the interest from
which is exempt from federal income taxation under Section 103 of the Code, (ii) which are taken
into account under Section 146 of the Code and (iii) which will be redeemed within a reasonable
period using principal payments on the loans provided from the proceeds of the issuance of the
bonds.
w) To the General Partner’s Best Knowledge, all consents or approvals of any
governmental authority, or any other Person, necessary in connection with the transactions
contemplated by this Agreement or necessary to admit the Investment Limited Partner to the
Partnership as a Limited Partner have been obtained by the General Partner and as of the
Admission Date, the Investment Limited Partner is duly admitted as a Limited Partner of the
Partnership owning a 99.99% limited partnership interest in the Partnership free and clear of any
and all claims, liens, charges and encumbrances.
x) The General Partner and the Partnership are under no obligation under any federal
or state law, rule, or regulation to register the Interests or to take any action in order to comply
with any exemption available for the sale of Interests without registration.
y) None of the loans evidenced by the Mortgages constitutes a “federal grant” within
the meaning of Section 42(d)(5)(A) of the Code.
z) The Partnership and the Credit Agency have entered or, prior to the end of the first
year of the Credit Period, will enter, into the “extended low-income housing commitment” within
the meaning of Section 42(h)(6)(B) of the Code and such commitment shall remain in full force
and effect throughout the entire extended use period as defined in Section 42(h)(6)(D) of the Code.
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aa) The General Partner shall not act in any manner which will cause (i) the Partnership
to be treated for federal income tax purposes as an association taxable as a corporation, (ii) the
Partnership to fail to qualify as a limited partnership under the Act, or (iii) the Limited Partner or
the Class B Limited Partner to be liable for Partnership obligations, including, without limitation,
the obligations set forth in the Mortgage documents.
bb) The General Partner shall not employ any person as an employee of the Partnership.
cc) The Apartment Complex was acquired by the Partnership by “purchase” (as defined
in Sections 179(d)(2) and 42(d)(2)(B)(i) of the Code).
dd) The General Partner is not presently under any commitment to any real estate
broker, rental agent, finder, syndicator or other intermediary with respect to the Apartment
Complex or any portion thereof, except for the Management Agreement and other arrangements
described in the Project Documents.
ee) No fact necessary to make the information and statements contained in this Section
6.6 not misleading has been omitted therefrom, and to the Best Knowledge of the General Partner,
no material fact concerning the Apartment Complex, the Tax Credits, the General Partner, the
Partnership, or the Developer has been withheld from the Limited Partners and no material
document has not been delivered to the Limited Partners.
ff) A period of at least 10 years elapsed between the date of the acquisition of the
Apartment Complex by the Partnership and the date it was last placed in service. For purposes of
the representation contained in this paragraph, there shall not be taken into account any placement
in the service described in clauses (I) through (V) of Section 42(d)(2)(D)(ii) of the Code.
gg) The Apartment Complex was not previously placed in service by the Partnership or
by any person who was a “related person” (as defined in Section 42(d)(2)(D)(iii)(II) of the Code)
with respect to the Partnership as of the time the Apartment Complex was previously placed in
service. The Limited Partners acknowledge and agree that, in making this representation and
warranty, the General Partner isrelying on the Limited Partners’ representation that no Person who
owns an interest in a Limited Partner will cause the Partnership to be related to the Seller.
6.7 Liability on Mortgages
Neither any General Partner nor any Related Person shall at any time bear the Economic
Risk of Loss for the payment of any portion of any Mortgage Loan, and the General Partner shall
not permit any other Partner or any Related Person to bear the Economic Risk of Loss for the
payment of any portion of any Mortgage Loan, except as described in Section 3.1 or as may be
expressly permitted pursuant to the provisions of Article III or with the Consent of the Special
Limited Partner.
6.8 Indemnification of the General Partner
a) Except as provided by Article V, no General Partner or any Affiliate thereof shall
have liability to the Partnership or to any Limited Partner or the Class B Limited Partner for any
loss suffered by the Partnership which arises out of any action or inaction of any General Partner
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or Affiliate thereof if such General Partner or Affiliate thereof in good faith determined that such
course of conduct was in the best interest of the Partnership and such course of conduct did not
constitute gross negligence or willful misconduct of such General Partner or Affiliate thereof.
b) A General Partner or any Affiliate thereof shall be indemnified by the Partnership
from and against any Adverse Consequences sustained in connection with the business and
operations of the Partnership, provided that all of the following conditions are met: (i) such
General Partner has determined, in good faith, that the course of conduct which caused the loss,
judgment, liability, expense or amount paid in settlement was in the best interests of the
Partnership; and (ii) such Adverse Consequences were not the result of gross negligence or willful
misconduct on the part of such General Partner or Affiliate thereof; and (iii) such indemnification
or agreement to hold harmless is recoverable only out of the assets of the Partnership, and not from
the Limited Partners or the Class B Limited Partner.
c) Notwithstanding the above, no Partner or any Affiliate thereof performing services
for the Partnership or any broker-dealer shall be indemnified for any Adverse Consequences
arising from or out of an alleged violation of federal or state securities laws unless there has been
a successful adjudication on the merits of each count involving securities laws violations as to the
particular indemnitee and the court finds that indemnification of the settlement and related costs
should be made. In any claim for indemnification for federal or state securities law violations, the
party seeking indemnification shall, prior to seeking court approval for such indemnification, place
before the court the positions of the Securities and Exchange Commission, the Massachusetts
Securities Division and any other applicable state securities administrator with respect to the issue
of indemnification for securities law violations.
d) The Partnership shall not incur the cost of the portion of any insurance, other than
public liability insurance or course of construction insurance, which insures any party against any
liability as to which such party is herein prohibited from being indemnified.
e) The Partnership may indemnify Affiliates of a General Partner under this Section
6.8 only if the loss involves an activity in which such Affiliates acted in the capacity of a General
Partner.
f) For purposes of this Section 6.8 only, the term “Affiliate” shall mean (i) any Person
performing services on behalf of the Partnership who (x) directly or indirectly controls, is
controlled by or is under common control with a General Partner; (y) owns or controls ten percent
10%) or more of the outstanding voting securities of a General Partner or (z) is an officer, director,
partner, member, manager or trustee of a General Partner; and (ii) any Person for whom the
General Partner acts as an officer, director, partner or trustee. For purposes of this Section 6.8
only, the term “controls” and any form of such termshall mean the power to direct the management
and policies of a Person, directly or indirectly, whether through ownership of voting securities, by
contract or otherwise.
6.9 Indemnification of the Partnership and the Limited Partners
a) The General Partner jointly and severally, to the extent permitted by law, will
indemnify and hold the Partnership, the Limited Partners and the Class B Limited Partner harmless
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from and against any and all Adverse Consequences which the Partnership or any Limited Partner
may incur by reason of (i) the past, present or future actions or omissions of the General Partner
or any of its Affiliates constituting gross negligence or willful misconduct, or (ii) any liabilities to
which either the Partnership or the Apartment Complex is subject; provided, however, that the
foregoing indemnification shall not be construed to (x) affect the non-recourse nature of any
Mortgage or (y) limit the Partnership’s primary liability for contractual obligations incurred
pursuant to the requirements of any Agency or Lender in connection with the operation of the
Apartment Complex in the ordinary course of business.
b) Notwithstanding the foregoing, no General Partner shall be liable to a Limited
Partner, the Class B Limited Partner or the Partnership for any act or omission for which the
Partnership is required to indemnify such General Partner under Section 6.8, except as provided
by Article V.
c) The General Partner shall jointly and severally, to the extent permitted by law,
indemnify, defend, and hold the Limited Partners and the Class B Limited Partner harmless on an
After-Tax Basis from and against any Adverse Consequences related to or arising directly or
indirectly out of the presence on, under or about the Apartment Complex of any Hazardous
Material at the Apartment Complex, the use, generation, manufacture, migration, storage or
disposal of any Hazardous Material on, under or about the Apartment Complex, or the violation
of any Environmental Laws by the General Partner or its representatives (other than any Adverse
Consequences resulting from the acts or omissions of the Limited Partners or the Class B Limited
Partner, as applicable). Any claim or loss described in the immediately preceding sentence may
be defended, compromised, settled, or pursued by the Limited Partners or the Class B Limited
Partner, as the case may be, with counsel of the Limited Partners’ or the Class B Limited Partner’s
selection, as the case may be, but at the expense of the General Partner. Notwithstanding anything
else set forth herein, this indemnification shall survive the withdrawal of any General Partner
and/or the termination of this Agreement.
6.10 Operating Deficits
Subject to any Requisite Approvals, the General Partner shall be obligated (the “Operating
Obligation”) during the period from Rental Achievement until the latest of (a) the fifth (5th)
anniversary of Rental Achievement, (b) the date that the Apartment Complex achieves a 1.15 Debt
Service Coverage Ratio as an average for the prior twelve (12) month period (based upon audited
financials), and (c) the Operating Reserve is funded to the Minimum Balance (the “Subordinated
Loan Period”), to promptly advance funds to eliminate any Operating Deficit, provided however,
that the General Partner shall not be obligated to have Subordinated Loans outstanding at any one
time in excess of $[255,000] (the “Subordinated Loan Cap”). In any case in which the General
Partner otherwise would be required to advance funds under this Section 6.10, any amounts then
held in the Operating Reserve may be released and disbursed for the purpose of eliminating the
Operating Deficit before the General Partner shall be required to advance their own funds. In the
event that the General Partner shall fail to make any such advance as aforesaid, (a) the Partnership
shall utilize amounts (the “Applied Amounts”) otherwise payable to the General Partner or its
Affiliates under Section 6.12 and/or Article X to meet the obligations of the General Partner
pursuant to this Section 6.10, with such utilization of Applied Amounts constituting payment and
satisfaction of the corresponding amounts payable to the General Partner or its Affiliates under
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Section 6.12 and/or Article X, with the proceeds thereof being applied to such obligations, and
with the obligation of the Partnership to make such payments to the General Partner or its Affiliates
pursuant to Section 6.12 and/or Article X being deemed to have been satisfied to the extent thereof
and (b) if such failure has not been cured within 15 days’ notice to the General Partner, the Special
Limited Partner shall have the option, exercisable in its sole discretion, to cause it or one or more
of its designees to be admitted to the Partnership as additional General Partner(s). An additional
General Partner so admitted shall automatically, without the need for any further action by any
Partner, become the Managing General Partner and shall be delegated all of the powers and
authority of all of the General Partners pursuant to Section 6.13. Each Partner hereby grants to
any such additional General Partner a power of attorney, coupled with an interest and irrevocable
to the extent permitted bylaw, to execute and deliver any and all instruments and documents which
it believes to be necessary or appropriate in order to accomplish the purposes of this Section 6.10
and to manage the business of the Partnership. The admission of an additional General Partner
shall not relieve any other General Partner of any of its economic obligations hereunder, and each
other General Partner shall indemnify and hold harmless the additional General Partner from and
against any and all Adverse Consequences sustained in connection with the additional General
Partner’s status as a General Partner (other than Adverse Consequences arising solely out of the
negligence or misconduct of such additional General Partner). Any additional General Partner
admitted under this paragraph shall withdraw (notwithstanding the provisions of Article VII) as
such and remain only as the Special Limited Partner upon payment by the General Partner of all
amounts due under this paragraph. For the purpose of this Section 6.10, all expenses shall be paid
on a thirty (30)-day current basis. Moreover, the General Partner may in its sole discretion at any
time advance funds to the Partnership to pay operating expenses and/or debt service of the
Partnership in order to facilitate the Partnership’s compliance with the Rent Restriction Test. All
advances pursuant to Section 6.5(e) and this Section 6.10 (including any Applied Amounts), except
advances from the Operating Reserve, shall constitute non-interest-bearing Subordinated Loans.
Subordinated Loans shall be repaid in accordance with the provisions of Article X. The form and
provisions of all Subordinated Loans shall conform to any applicable Regulations.
6.11 Obligation to Complete the Construction of the Apartment Complex
a) To the extent the Developer fails to do so under the Development Agreement, the
General Partner shall be obligated to complete the construction of the Apartment Complex and
pay all costs necessary to achieve Rental Achievement in the manner set forth in this Agreement
and the Development Agreement.
b) The General Partner shall be obligated to pay all costs necessary to achieve
Permanent Mortgage Commencement and Rental Achievement in the manner set forth in this
Agreement, and may be reimbursed for such payments only out of Specified Proceeds.
c) The completion of the Apartment Complex shall be secured by a completion bond
in an amount at least equal to the full amount of the Construction Contract for the Apartment
Complex.
6.12 Certain Payments to the General Partner and Others
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a) As reimbursement for certain advances and as compensation for the Developer’s
services in connection with the development and rehabilitation of the Apartment Complex, the
Partnership shall pay to the Developer a development fee (the “Development Fee”) in the amount
and at the times set forth in the Development Agreement. If Specified Proceeds are insufficient to
pay the Development Fee, such unpaid amounts shall be evidenced by a Deferred Development
Fee Note as set forth in the Development Agreement, provided however that the maximum amount
of the Deferred Development Fee Noteshall be [$186,413] (or such larger amount as in the opinion
of tax counsel to the Investment Limited Partner would not cause tax benefits to be projected to be
reallocated from the Investment Limited Partner to another Partner during the Compliance Period).
Any unpaid portion of the Development Fee not evidenced by the Deferred Development Fee Note
must be paid as a Development Cost as set forth in Section 6.11. The General Partner, with the
Consent of the Special Limited Partner, shall cause the Deferred Development Fee Note, if any, to
be executed by the Partnership at the time set forth in and in accordance with the terms of the
Development Agreement. If the Development Fee, including without limitation, any portion
evidenced by a Deferred Development Fee Note and all accrued but unpaid interest thereon, has
not been fully paid by the thirteenth (13th) anniversary of the Completion Date, the General Partner
shall make a Capital Contribution to the Partnership in an amount sufficient to enable the
Partnership to pay any unpaid portion of the Development Fee, including without limitation, any
portion evidenced by a Deferred Development Fee Note and all accrued but unpaid interest
thereon.
b) The Partnership shall pay to the Investment Limited Partner or an Affiliate thereof
a fee (the “Asset Management Fee”) commencing in 2016 for its services in connection with the
Partnership’s accounting matters relating to the Investment Limited Partner and assisting with the
preparation of tax returns and the reports required by Section 12.7 in the annual amount of $3,000,
adjusted each year by a factor equal to the percentage change in the Consumer Price Index for such
year (but in no event to less than $3,000 per annum). The Asset Management Fee shall be payable
from Cash Flow in the manner and priority set forth in Section 10.2(a); provided however, that if
in any Fiscal Year, Cash Flow is insufficient to pay the full amount of the Asset Management Fee,
the unpaid portion thereof shall accrue and be payable on a cumulative basis in the first Fiscal Year
in which there is sufficient Cash Flow or Capital Proceeds as provided in Article X.
c) In consideration of the services of the General Partner in managing the day-to-day
business and affairs of the Partnership, the Partnership shall pay to the General Partner an annual
fee (the “Partnership Management Fee”) commencing in 2016 in the amount of $3,000, adjusted
each year by a factor equal to the percentage change in the Consumer Price Index for such year
and payable from Cash Flow in the manner set forth in Section 10.2(a). The Partnership
Management Fee shall be noncumulative so that if there is not sufficient Cash Flow in any Fiscal
Year to pay the amount of the Partnership Management Fee specified for such use in Section
10.2(a), the Partnership shall have no obligation to pay such shortfall in any future Fiscal Year.
d) The Partnership also shall pay to the General Partner the Incentive Management
Fee as set forth in the Incentive Management Agreement.
6.13 Delegation of General Partner Authority
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a) If there shall be more than one General Partner serving hereunder, each General
Partner may from time to time, by an instrument in writing, delegate all or any of his powers or
duties hereunder to another General Partner or General Partners.
b) Each contract, deed, mortgage, lease and other instrument executed by any General
Partner shall be conclusive evidence in favor of every Person relying thereon or claiming
thereunder that at the time of the delivery thereof (i) the Partnership was in existence, (ii) this
Agreement had not been amended in any manner so as to restrict the delegation of authority among
General Partners (except as shown in certificates or other instruments duly filed in the Filing
Office) and (iii) the execution and delivery of such instrument was duly authorized by the General
Partners. Any Person may always rely on a certificate addressed to him and signed by any General
Partner hereunder:
1) as to who are the General Partners or Limited Partners or the Class B
Limited Partner hereunder;
2) as to the existence or nonexistence of any fact which constitutes a condition
precedent to acts by the General Partners or in any other manner germane to the affairs of
the Partnership;
3) as to who is authorized to execute and deliver any instrument or document
of the Partnership;
4) as to the authenticity of any copy of this Agreement and any amendments
thereto; or
5) as to any act or failure to act by the Partnership or as to any other matter
whatsoever involving the Partnership or any Partner.
6.14 Assignment to Partnership
The Developer and the General Partner hereby transfer and assign to the Partnership all of
their right, title and interest in and to the Apartment Complex and in and to all of the Project
Documents, including, but not limited to, the following: (i) all contracts with architects,
supervising architects, engineers and contractors with respect to the development of the Apartment
Complex; (ii) all plans, specifications and working drawings heretofore prepared or obtained in
connection with the Apartment Complex; (iii) all governmental commitments and approvals
obtained, and applications therefore, including, but not limited to those relating to planning,
zoning, building permits and Tax Credits; (iv) any and all commitments with respect to any
Mortgage(s); and (v) any and all contracts or rights with respect to any agreements with any
Agency or Lender.
6.15 Contracts with Affiliates
a) The General Partner or any Affiliate thereof may act as Management Agent upon
the terms and conditions set forth in Article XI.
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b) The General Partner or any Affiliates thereof shall have the right to contract or
otherwise deal with the Partnership for the sale of goods or services to the Partnership in addition
to those set forth herein, if (i) compensation paid or promised for such goods or services is
reasonable (i.e., at fair market value) and is paid only for goods or services actually furnished to
the Partnership, (ii) the goods or services to be furnished shall be reasonable for and necessary to
the Partnership, (iii) the fees, terms and conditions of such transaction are at least as favorable to
the Partnership as would be obtainable in an arm’s-length transaction, (iv) the Consent of the
Special Limited Partner is obtained for any such contract where the compensation to be paid by
the Partnership to the General Partner or its Affiliates is $50,000 or more, and (v) no agent,
attorney, accountant or other independent consultant or contractor who also is employed on a full-
time basis by the General Partner or any Affiliate shall be compensated by the Partnership for his
services. Any contract covering such transactions shall be in writing and shall be terminable
without penalty on sixty (60) days written notice. Any payment made to the General Partner or
any Affiliate for such goods or services shall be fully disclosed to all Limited Partners in the reports
required under Article XII. Neither the General Partner nor any Affiliate shall, by the making of
lump-sum payments to any other Person for disbursement by such other Person, circumvent the
provisions of this Section 6.15(b).
6.16 Tax Matters Partner
a) The General Partner hereby is designated as Tax Matters Partner of the Partnership,
and shall engage in such undertakings as are required of the Tax Matters Partner of the Partnership
as provided in treasury regulations pursuant to Section 6231 of the Code. Each Partner, by the
execution of this Agreement, consents to such designation of the Tax Matters Partner and agrees
to execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices
such documents as may be necessary or appropriate to evidence such consent.
b) With the Consent of the Investment Limited Partner, the Tax Matters Partner hereby
is authorized, but not required:
i) to enter into any settlement agreement with the Service with respect to any
tax audit or judicial review, in which agreement the Tax Matters Partner may expressly
state that such agreement shall bind the other Partners, except that such settlement
agreement shall not bind any Partner who (within the time prescribed pursuant to the Code
and treasury regulations thereunder) files a statement with the Service providing that the
Tax Matters Partner shall not have the authority to enter into a settlement agreement on the
behalf of such Partner;
ii) in the event that a notice of final administrative adjustment at the
Partnership level of any item required to be taken into account by a Partner for tax purposes
a “Final Adjustment”) is mailed to the Tax Matters Partner, to seek judicial review of such
Final Adjustment, including the filing of a petition for readjustment with the Tax Court,
the District Court of the United States for the district in which the Partnership’s principal
place of business is located, or the United States Claims Court;
iii) to intervene in any action brought by any other Partner for judicial review
of a Final Adjustment;
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iv) to file a request for an administrative adjustment with the Service at any
time and, if any part of such request is not allowed by the Service, to file an appropriate
pleading (petition or complaint) for judicial review with respect to such request;
v) to enter into an agreement with the Service to extend the period for assessing
any tax which is attributable to any item required to be taken into account by a Partner for
tax purposes, or an item affected by such item; and
vi) to take any other action on behalf of the Partners or the Partnership in
connection with any administrative or judicial tax proceeding to the extent permitted by
applicable law or Regulations.
c) The Partnership shall indemnify and reimburse the Tax Matters Partner for all
expenses, including legal and accounting fees, claims, liabilities, losses and damages incurred in
connection with any administrative or judicial proceeding with respect to the tax liability of the
Partners. The payment of all such expenses shall be made before any distributions are made from
Cash Flow or any discretionary reserves are set aside by the General Partner. The General Partner
shall have the obligation to provide Partnership funds for such purpose, but only to the extent of
available Partnership resources. The taking of any action and the incurring of any expense by the
Tax Matters Partner in connection with any such proceeding, except to the extent required by law,
is a matter in the sole discretion of the Tax Matters Partner and the provisions on limitations of
liability of the General Partner and indemnification set forth in Section 6.8 of this Agreement shall
be fully applicable to the Tax Matters Partner in its capacity as such.
d) Beginning on January 1, 2018, the Managing General Partner shall constitute the
partnership representative” under Section 6223 of Chapter 63 of the Code (as in effect pursuant
to the Bipartisan Budget Act), and the Managing General Partner shall take any and all action
required under the Code or Treasury Regulations, as in effect from time to time, to designate itself
the “partnership representative.” The designation of someone other than the Managing General
Partner as the partnership representative will require the Consent of the Investment Limited
Partner. To the extent permitted by the Code and Treasury Regulations, the Managing General
Partner, in its capacity as “partnership representative” shall be bound by the obligati ons and
restrictions imposed on the Tax Matters Partner pursuant to this Section 6.19. Upon the
promulgation of Treasury Regulations implementing subchapter C of Chapter 63 of the Code (as
revised by the Bipartisan Budget Act), the Managing General Partner will evaluate and consider
options available with respect to preserving the allocation of responsibility and authority described
in this Section 6.16, while conforming with the applicable provisions of the revised partnership
audit procedures. Any action taken by the Managing General Partner pursuant to this Section
6.16(d), including any election permitted under the Bipartisan Budget Act, shall be made only with
the Consent of the Investment Limited Partner. The Managing General Partner and the Partners
agree to work together in good faith to amend this Agreement if either party determines that an
amendment is required to maintain the intent of the parties with respect to the obligations and
limitations of the Tax Matters Partner.
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ARTICLE VII
Withdrawal of a General Partner; New General Partners
7.1 Voluntary Withdrawal
No General Partner shall have the right to Withdraw voluntarily from the Partnership or to
sell, assign or encumber its Interest without the Consent of the Investment Limited Partner and
each of the other General Partners (if any) and, if required, any Requisite Approvals.
7.2 Reconstitution
In the event of the Withdrawal of a General Partner, the Partnership shall not be dissolved
or required to be wound up if (i) at the time of such Withdrawal there is at least one remaining
General Partner and that General Partner carries on the business of the Partnership (any such
remaining General Partner being hereby authorized to carry on the business of the Partnership), or
ii) within ninety (90) days after such Withdrawal all remaining Partners agree in writing to
continue the business of the Partnership and to the appointment, effective as of the date of such
Withdrawal, of one or more additional General Partners. Within ten (10) days after the occurrence
of such Withdrawal, the remaining General Partners, if any, shall notify the Investment Limited
Partner thereof:
i) The reconstituted limited partnership shall continue until the occurrence of
a Liquidating Event as provided in Section 2.4;
ii) If the successor General Partner is not a former General Partner, then the
provisions of Section 7.4(d) shall apply; and
iii) All necessary steps shall be taken to cancel this Agreement and the
Certificate and to enter into a new partnership agreement and certificate of limited
partnership, and the successor General Partner shall be obligated to take such steps.
7.3 Successor General Partner
a) Upon the occurrence of any Withdrawal, the remaining General Partners may
designate a Person to become a successor General Partner to the Withdrawing General Partner.
Any Person so designated, subject to any Requisite Approvals, the Consent of the Investment
Limited Partner and, if required by the Act or any other applicable law, the consent of any other
Partner so required, shall become a successor General Partner upon his written agreement to be
bound by the Project Documents and by the provisions of this Agreement.
b) If any Withdrawal shall occur at a time when there is no remaining General Partner
and the Partners do not unanimously elect to continue the business of the Partnership in accordance
with the provisions of clause (ii) of Section 7.2(a) above, then the Investment Limited Partner shall
have the right, subject to any Requisite Approvals, to designate a Person to become a successor
General Partner upon his written agreement to be bound by the Project Documents and by the
provisions of this Agreement.
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c) If the Investment Limited Partner elects to reconstitute the Partnership and admit a
successor General Partner pursuant to this Section 7.3, the relationship of the Partners in the
reconstituted Partnership shall be governed by this Agreement.
7.4 Interest of Predecessor General Partner
a) No assignee or transferee of all or any part of the Interest as a General Partner of a
General Partner shall have any automatic right to become a General Partner. Until the acquisition
of the Interest of a Withdrawing General Partner pursuant to Section 7.4(d) or 7.6, such Interest
shall be deemed to be that of an assignee and the holder thereof shall be entitled only to such rights
as an assignee may have as such under the laws of the State.
b) Anything herein contained to the contrary notwithstanding, any General Partner
who Withdraws voluntarily in violation of Section 7.1 shall remain liable for all of its obligations
under this Agreement, for all its other obligations and liabilities hereunder incurred or accrued
prior to the date of its Withdrawal and for any loss or damage which the Partnership or any of its
Partners may incur as a result of such Withdrawal (except as provided in Section 6.8(a)).
c) The estate (which term, for purposes of this Section 7.4(c), shall include the heirs,
distributees, estate, executors, administrators, guardian, committee, trustee or other personal
representative) of a Withdrawn General Partner shall be liable for all his liabilities and obligations
hereunder, except as provided in this Section 7.4(c). In the event of the death, insanity or
incompetency of a General Partner, his estate shall remain liable for all of his obligations and
liabilities hereunder incurred or accrued prior to the date of such event, and for any damages arising
out of any breach of this Agreement by him, but his estate shall not have any obligation or liability
on account of the business of the Partnership or the activities of the other General Partners after
his death, insanityor incompetency unless it becomes a General Partner pursuant to Section 7.3(a).
d) The Disposition of the General Partner Interest of a General Partner who or which
Withdraws voluntarily in compliance with this Agreement shall be accomplished in such manner
as shall be acceptable to the remaining General Partners and shall be approved by Consent of the
Investment Limited Partner. Except as provided in the preceding sentence, upon the Withdrawal
of a General Partner (other than a General Partner who or which is removed as such pursuant to
Section 4.5), such Withdrawn General Partner shall be deemed to have automatically transferred
to the remaining General Partners, in proportion to their respective General Partner Interests, or, if
there shall be no remaining General Partner, then to the Partnership for the benefit of the remaining
Partners, all or such portion of the General Partner Interest of such Withdrawn General Partner
which, when aggregated with the existing General Partner Interests of all such remaining General
Partners, will be sufficient in the opinion of the Tax Accountants to assure such remaining General
Partners a sufficient interest in all Profits, Losses, Tax Credits and distributions of the Partnership
under Article X so as to be deemed to be a Partner of the Partnership for federal income tax
purposes. No documentation shall be necessary to effectuate such transfer, which shall be
automatic, and no consideration shall be payable therefor. For the purposes of Article X, the
effective date of the transfer pursuant to the provisions of this Section 7.4(d) of the General Partner
Interest of a Withdrawn General Partner shall be deemed to be the date on which such Withdrawal
occurs. That portion of the General Partner Interest (the “Remaining Interest”) of the Withdrawing
General Partner which shall not have been transferred pursuant to this Section 7.4(d) (except in
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respect of a removed General Partner), shall be retained by such Withdrawing General Partner (or
pass to legal representatives thereof) who or which shall have the status of a special limited partner
an Article VII Special Limited Partner), but with the right to receive only that share of the Profits,
Losses, Tax Credits and distributions of thePartnership towhich the Withdrawing General Partner,
as such, would have been entitled had he or it remained, reduced to the extent of the General
Partner Interest transferred hereunder, but such Withdrawing Partner (or his or its legal
representatives, as the case may be) shall not be considered to be a Special Limited Partner for the
purpose of exercising any rights reserved to the Special Limited Partner under this Agreement or
sharing the benefits allocated to the Special Limited Partner under Article X hereof and shall not
participate in the votes or consents of the Limited Partners hereunder; provided, however, that in
the case of a General Partner who or which Withdraws involuntarily without violation of this
Agreement, the Partnership shall have the option (but not the obligation), exercisable by notice to
the holder of such Interest within six (6) months following the date of such Withdrawal, to acquire
the Remaining Interest of such Withdrawing General Partner (or the Article VII Special Limited
Partner Interest deriving therefrom) in accordance with the valuation and payment provisions of
Section 7.6.
7.5 Amendment of Certificate; Approval of Certain Events
a) Upon the admission of a new General Partner pursuant to the preceding provisions
of this Article VII, Schedule A shall be amended to reflect such admission and an amendment to
the Certificate, also reflecting such admission, shall be filed as required by the Act.
b) Each Partner hereby consents to and authorizes any admission or substitution of a
General Partner or any other transaction, including, without limitation, the continuation of the
Partnership business, which has been authorized under the provisions of this Agreement, and
hereby ratifies and confirms each amendment of this Agreement necessary or appropriate to give
effect to any such transaction.
7.6 Valuation and Sale of Interest of Former General Partner
a) Subject to the provisions of Section 7.4(d), if the business of the Partnership is
continued after the Withdrawal of a General Partner, or if, following such event, the Partnership
is reconstituted and continued, in each case as contemplated by this Agreement, the Partnership
shall purchase such General Partner’s Interest if such removal is without cause or if such
Withdrawal is not in violation of this Agreement (which term, and words of like import, as used
in this Section 7.6 shall refer only to the “Remaining Interest” of such Withdrawing General
Partner as defined in Section 7.4(d) in all cases where applicable) each for a price equal to the fair
market value thereof. Such fair market value shall be determined by two independent appraisers,
one selected by the former General Partner or its representative and one by the Partnership. If such
appraisers are unable to agree on the value of the former General Partner’s Interest, they shall
jointly appoint a third independent appraiser whose determination shall be final and binding. The
appraisers may act with or without a hearing, and the cost of the appraisal will be shared equally
between such former General Partner and the Partnership. If a General Partner is removed by the
Investment Limited Partner for cause, or if a General Partner has voluntarily withdrawn from the
Partnership in contravention of the terms of this Agreement, the General Partner shall forfeit its
Interest to the Partnership, not as a penalty but as liquidated damages to compensate the Partnership
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for the action of such General Partner leading to its removal, or for the fact of its violation of the
terms of this Agreement.
b) Promptly after the determination of the purchase price of a former General Partner’s
Interest pursuant to Section 7.6(a), the Partnership shall deliver to such former General Partner a
promissory note of the Partnership for such purchase price, payable in five equal consecutive
annual installments commencing on the first anniversary of the date of such note. Such promissory
note shall bear simple interest at the rate per annum which is at all times the long-term AFR,
payable on the last day of each calendar quarter during which such note is outstanding. Within
one hundred twenty (120) days after the determination of the purchase price of the former General
Partner’s Interest, the Partnership may, with the consent of all remaining General Partners and the
Consent of the Investment Limited Partner, sell such Interests to one or more Persons, who may
be Affiliates of the remaining General Partner or General Partners, and admit such Person or
Persons to the Partnership as substitute General Partners; provided, however, that the purchase
price to be paid to the Partnership for the Interest of the former General Partner shall not be less
than its purchase price as determined by the appraisal and, if applicable, arbitration described
above. Such substitute General Partners may pay said purchase price in installments in the manner
set forth above in this Section 7.6(b).
7.7 Designation of New General Partners
The General Partner may, with the written consent of all Limited Partners, at any time
designate new General Partners, each with such Interest as a General Partner in the Partnership as
the General Partner may specify, subject to any Requisite Approvals.
Any new General Partner shall, as a condition of receiving any interest in the Partnership
property, agree to be bound by the Project Documents and any other documents required in
connection therewith and by the provisions of this Agreement, to the same extent and on the same
terms as any other General Partner.
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ARTICLE VIII
Transferability of a Limited Partner’s Partnership Interests
8.1 Assignments
a) Except as set forth in Section 8.2, each of the Limited Partners may assign all or
any part of its Interest without the consent of any other Partner. The Investment Limited Partner
hereby represents and warrants that any transfer of its Interest in the Partnership, either directly or
indirectly prior to payment in full of all of its Capital Contributions hereunder, shall be to a
Creditworthy Entity (as hereinafter defined). For purposes of the preceding sentence, the term
Creditworthy Entity” shall mean: (i) any national bank, banking corporation, national banking
association or other banking institution, or (ii) any insurance company subject to supervision by
the insurance commissioner or similar regulatory agency, or (iii) any investment company
registered under the Investment Company Act of 1940, or (iv) any publicly-held corporation with
a rating of BBB- or better by Standard & Poor’s or Baa3 or better by Moody’s Investor Service,
Inc., or an equivalent or higher rating by another recognized rating agency, or (v) any subsidiary
of any of the foregoing. Nothing herein shall be construed as limiting the right of the Investment
Limited Partner to transfer its Interest in the Partnership, either directly or indirectly, to Affiliates
of Boston Capital or any Entity that is otherwise controlled by or under common control with
Boston Capital.
b) An assignee of a Limited Partner who does not become a Substituted Limited
Partner shall have, and shall only have, the right to receive the share of allocations and distributions
of the Partnership to which the assigning Limited Partner would have been entitled with respect to
the Partnership Interest (or portion thereof) so assigned if no such assignment had been made by
such Limited Partner. Any assigning Limited Partner whose assignee becomes a Substituted
Limited Partner shall thereupon cease to be a Limited Partner and shall no longer have any of the
rights or privileges of a Limited Partner. Where the assignee does not become a Substituted
Limited Partner, the Partnership shall recognize such assignment not later than the last day of the
calendar month following receipt of notice of assignment and all documentation required in
connection therewith. The General Partner shall cooperate with the Limited Partners in facilitating
such assignment by promptly furnishing complete and accurate financial and other relevant data
regarding the Partnership, the Apartment Complex, the General Partner and Affiliates of the
General Partner and any other matters reasonably necessary in the judgment of the Special Limited
Partner to facilitate such Assignment, but only to the extent such information is readily available
to the General Partner either (a) at no or at nominal cost, or (b) the Limited Partners shall reimburse
the General Partner for the reasonable cost thereof.
c) Every assignee of a Limited Partner’s Partnership Interest (or any portion thereof)
who desires to make a further assignment of its Partnership Interest shall be subject to all the
provisions of this Article VIII.
8.2 Substituted Limited Partner
Each Limited Partner shall have the right to substitute an assignee as Limited Partner in its
place without the consent of any other Partner; provided that any Substituted Limited Partner shall
execute such instrument or instruments as shall be reasonably required by the General Partners to
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signify the agreement of such Substituted Limited Partner to be bound by all the provisions of this
Agreement.
8.3 Restrictions
a) No Disposition of a Limited Partner Interest may be made if such Disposition would
violate the provisions of Sections 8.1, 8.2 or 13.1.
b) In no event shall all or any part of a Limited Partner Interest be Disposed of to a
minor (other than to a descendant by reason of death) or to an incompetent.
c) The General Partner may, in addition to any other requirement it may impose,
require as a condition of any Disposition of a Limited Partner Interest that the transferor (i) assume
all costs incurred by the Partnership in connection therewith and (ii) furnish the Partnership and
the other Partners with an opinion of counsel satisfactory to counsel to the Partnership that such
Disposition complies with applicable federal and state securities laws.
d) Any sale, exchange, transfer or other Disposition of a Limited Partner Interest in
contravention of any of the provisions of this Section 8.3 shall be void and ineffectual and shall
not bind or be recognized by the Partnership.
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ARTICLE IX
Borrowings
All Partnership borrowings shall be subject to the terms of this Agreement and the Project
Documents and may be made from any source, including Partners and their Affiliates. Any
Partnership borrowings from any Partner, other than the Subordinated Loans, shall be subject to
any Requisite Approvals and the Consent of the Special Limited Partner. If any Partner shall lend
any monies to the Partnership, the amount of any such loanshall not increase such Partner’s Capital
Contribution. If any Partner shall so lend monies, each such loan (a “Voluntary Loan”) shall be
an obligation of the Partnership and (except for Subordinated Loans) shall be repayable to such
Partner on the same basis and with the same rate of interest as would be applicable to a comparable
loan to the Partnership from a third party. Funds advanced by the General Partner to the
Partnership as Subordinated Loans shall not constitute borrowings for the purposes of this
Article IX or for any other purposes.
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ARTICLE X
Profits, Losses, Tax Credits, Distributions and Capital Accounts
10.1 Profits, Losses and Tax Credits
a) Subject to the provisions of Section 10.1(b) and Section 10.4, for each Partnership
Fiscal Year or portion thereof, all Operating Profits and Losses, tax-exempt income, losses, non-
deductible non-capitalizable expenditures and Tax Credits incurred or accrued on or after the
Commencement Date shall be allocated 99.99% to the Investment Limited Partner, 0.005% to the
Managing General Partner, and 0.005% to the Class B Limited Partner.
b) Except as otherwise specifically provided in this Article, all Profits and Losses
arising from a Capital Transaction shall be allocated to the Partners as follows:
As to Profits:
First, that portion of Profits (including any Profits treated as ordinary income for
federal income tax purposes) shall be allocated to the Partners who have negative Capital
Account balances in proportion to the amounts of such balances, provided that no Profits
shall be allocated to a Partner under this Clause First to increase any such Partner’s Capital
Account above zero; and
Second, Profits in excess of the amounts allocated under Clause First above shall
be allocated to and among the Partners in the same percentages as cash is distributed under
Clause Fifth of Section 10.2(b);
As to Losses:
First, an amount of Losses shall be allocated to the Partners to the extent and in
such proportions as shall be necessary such that, after giving effect thereto, the respective
balances in all Partners’ Capital Accounts shall be in the ratio of 99.99% to the Investment
Limited Partner, 0.005% to the Managing General Partner, and 0.005% to the Class B
Limited Partner;
Second, an amount of Losses shall be allocated to the Partners until the balance in
each Partner Capital Account equals the amount of such Partner’s Capital Contribution
after the allocation under Clause First above);
Third, an amount of Losses shall be allocated to the Partners to the extent of and in
proportion to such Partners’ Capital Account balances (after the allocations under Clauses
First and Second above); and
Fourth, any remaining amount of Losses after the allocation under Clauses First,
Second and Third above shall be allocated to the Partners in accordance with the manner
in which they bear the Economic Risk of Loss associated with such Loss; provided,
however, that in the event that no Partner bears an Economic Risk of Loss then any
remaining Losses shall be allocated 99.99% to the Investment Limited Partner, 0.005% to
the Managing General Partner, and 0.005% to the Class B Limited Partner.
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10.2 Cash Distributions Prior to Dissolution
a) Cash Flow
Subject to any Requisite Approvals, Cash Flow for each Fiscal Year or portion thereof shall
be applied as follows:
First, to the payment to the Investment Limited Partner of the full amount
including interest) of any amounts due and owing to the Investment Limited Partner,
including without limitation, adjusters under Section 5.1, any Recapture Amount pursuant
to Section 10.6, guaranty payments and/or indemnity payments which the Investment
Limited Partner is entitled to receive pursuant to this Agreement, the Development
Agreement and to repay any Voluntary Loan made by the Investment Limited Partner
pursuant to Article IX;
Second, to the payment of the Asset Management Fee for such Fiscal Year and for
any previous Fiscal Year(s) as to which the Asset Management Fee shall not yet have been
paid in full;
Third, to deposit into the Operating Reserve the amount necessary to maintain the
Minimum Balance;
Fourth, to the payment of any unpaid portion of the Development Fee, including
without limitation, any amounts evidenced by a Deferred Development Fee Note;
Fifth, to the repayment of any GP Obligations above the City Obligation Capped
Amount;
Sixth, to the repayment of any Subordinated Loans;
Seventh, to the payment of the Partnership Management Fee for such Fiscal Year;
Eighth, to the payment of any Subordinated Management Fee;
Ninth, pari passu, to the repayment of the Seller Loan and the City Loan; and
Tenth, the balance thereof, if any, shall be distributed annually, seventy-five (75)
days after the end of the Fiscal Year, 89.95% to the Investment Limited Partner, 10% to
the General Partners, first as payment of the Incentive Management Fee and then as a
distribution, and 0.05% to the Class B Limited Partner.
b) Distributions of Capital Proceeds
Prior to dissolution, if Capital Proceeds are available for distribution from a Capital
Transaction, such Capital Proceeds shall be applied or distributed as follows:
First, to the payment of any accrued and unpaid Asset Management Fees;
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Second, to the payment to the Investment Limited Partner of the full amount
including interest) of any amounts due and owing to the Investment Limited Partner,
including without limitation, adjusters under Section 5.1, any Recapture Amount pursuant
to Section 10.6, guaranty payments and/or indemnity payments which the Investment
Limited Partner is entitled to receive pursuant to this Agreement, the Development
Agreement and to repay any Voluntary Loan made by the Investment Limited Partner
pursuant to Article IX;
Third, to the repayment of any remaining unpaid debts and liabilities owed to
Partners or Affiliates thereof by the Partnership for Partnership obligations (exclusive of
Subordinated Loans) to any of them, including, but not limited to, accrued and unpaid
amounts due in respect of any and all fees (including but not limited to the Development
Fee and any Deferred Development Fee Note) due and payable to the General Partner or
its Affiliates as set forth in Section 6.12; provided, however, that any debts or obligations
to be repaid to any Limited Partner or Affiliate thereof pursuant to this Clause Third shall
be repaid prior to the repayment of any such debts or obligations to any General Partner or
Affiliate thereof;
Fourth, to the repayment of any Subordinated Loans;
Fifth, subject to the provisions of Section 10.3(a), any balance 89.949% to the
Investment Limited Partner, 0.001% to the Special Limited Partner, 10% to the General
Partner, and 0.05% to the Class B Limited Partner.
10.3 Distributions Upon Dissolution
a) Upon dissolution and termination, after payment of, or adequate provision for, the
debts and obligations of the Partnership, the remaining assets of the Partnership shall be distributed
to the Partners in accordance with the positive balances in their Capital Accounts after taking into
account all Capital Account adjustments for the Partnership Fiscal Year, including adjustments to
Capital Accounts pursuant to Sections 10.1(b) and 10.3(b). In the event that a General Partner has
a negative balance in its Capital Account following the liquidation of the Partnership or such
Partner’s Interest, after taking into account all Capital Account adjustments for the Partnership
Fiscal Year in which such liquidation occurs, such Partner shall pay to the Partnership in cash an
amount equal to the negative balance in such Partner’s Capital Account. Such payment shall be
made by the end of such Fiscal Year (or, if later, within ninety (90) days after the date of such
liquidation) and shall, upon liquidation of the Partnership, be paid to recourse creditors of the
Partnership or distributed to other Partners in accordance with the positive balances in their Capital
Accounts.
b) With respect to assets distributed in kind to the Partners in liquidation or otherwise,
i) any unrealized appreciation or unrealized depreciation in the values of such assets shall be
deemed to be Profits and Losses realized by the Partnership immediately prior to the liquidation
or other distribution event; and (ii) such Profits and Losses shall be allocated to the Partners in
accordance with the provisions of Section 10.1(b), and any property so distributed shall be treated
as a distribution of an amount in cash equal to the excess of such fair market value over the
outstanding principal balance of and accrued interest on any debt by which the property is
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encumbered. For the purposes of this Section 10.3(b), the terms “ unrealized appreciation” or
unrealized depreciation” shall mean the difference between the fair market value of such assets,
taking into account the fair market value of the associated financing (but subject to the provisions
of Section 7701(g) of the Code), and the Partnership’s adjusted basis for such assets as determined
under the applicable provisions of the Allocation Regulations. This Section 10.3(b) is merely
intended to provide a rule for allocating unrealized gains and losses upon liquidation or other
distribution event, and nothing contained in this Section 10.3(b) or elsewhere herein is intended to
treat or cause such distributions to be treated as sales for value. The fair market value of such
assets shall be determined by an appraiser to be selected by the General Partner with the Consent
of the Special Limited Partner.
c) The Investment Limited Partner may, prior to the time prescribed by law for filing
of the Partnership’s federal income tax return for any Fiscal Year (not including extensions), elect
to be unconditionally obligated to restore all or a portion of any deficit in the Investment Limited
Partner’s Capital Account upon liquidation of its Interest in the Partnership. Any such election
shall be evidenced by written notice to the General Partner, delivered prior to such time, specifying
the amount of any deficit for which the Investment Limited Partner elects a deficit restoration
obligation. Any amount owing pursuant to a deficit restoration obligation shall be payable upon
the later of (a) the end of the Fiscal Year in which Investment Limited Partner’s Interest is
liquidated or (b) ninety (90) days after the date of such liquidation. The amount of any such
election shall automatically be reduced to the extent the deficit in the Investment Limited Partner’s
Capital Account (after reduction for the items described in (4), (5) and (6) of Treasury Regulations
Section 1.704-1(b)(2)(ii)(d)) is subsequently reduced or eliminated as of the end of the
Partnership’s taxable year without affecting the validity of prior allocations. If an allocation or
distribution thereafter increases the deficit in the Investment Limited Partner’s Capital Account,
unless the Investment Limited Partner elects otherwise under (i) below, the Investment Limited
Partner will be obligated to restore the deficit only to the extent of the lesser of (i) the deficit
amount the Investment Limited Partner has previously elected to restore or (ii) the smallest deficit
balance in the Investment Limited Partner’s Capital Account (after reduction for the items
described in (4), (5) and (6) of Treasury Regulations Section 1.704-1(b)(2)(ii)(d)) as of the end of
the Partnership’s taxable year subsequent to the taxable year for which the election above was
made. For purposes of determining the amount referred to in (ii), the income, gain, losses and
deductions of the Partnership shall be allocated under an interim closing of the books method.
10.4 Special Provisions
a) Except as otherwise provided in this Agreement, all Profits, tax -exempt income,
Losses, non-deductible non-capitalizable expenditures, Tax Credits and cash distributions shared
by a class of Partners shall be shared by each Partner in such class in the ratio of such Partner’s
paid-in Capital Contribution to the paid-in Class Contribution of the class of Partners of which
such Partner is a member.
b) Notwithstanding the foregoing provisions of this Article X:
i) If (a) the Partnership incurs recourse obligations or Partner Nonrecourse
Debt (including, without limitation, Voluntary Loans or Subordinated Loans) or (b) the
Partnership incurs Losses from extraordinary events which are not recovered from
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insurance or otherwise (collectively “Recourse Obligations”) in respect of any Partnership
Fiscal Year, then the calculation and allocation of Profits and Losses shall be adjusted as
follows: first, an amount of deductions attributable to the Recourse Obligations shall be
allocated to the Partner who bears the Economic Risk of Loss therefor; and second, the
balance of such deductions shall be allocated as provided in Section 10.1(a).
ii) If any Profits arise from the sale or other disposition of any Partnership asset
which shall be treated as ordinary income under the depreciation recapture provisions of
the Code, then the full amount of such ordinary income shall be allocated among the
Partners in the proportions that the Partnership deductions from the depreciation giving
rise to such recapture were actually allocated. In the event that subsequently-enacted
provisions of the Code result in other recapture income, no allocation of such recapture
income shall be made to any Partner who has not received the benefit of those items giving
rise to such other recapture income.
iii) If the Partnership shall receive any purchase money indebtedness in partial
payment of the purchase price of the Apartment Complex and such indebtedness is
distributed to the Partners pursuant to the provisions of Section 10.2(b) or Section 10.3, the
distributions of the cash portion of such purchase price and the principal amount of such
purchase money indebtedness hereunder shall be allocated among the Partners in the
following manner: On the basis of the sum of the principal amount of the purchase money
indebtedness and cash payments received on the sale (net of amounts required to pay
Partnership obligations and fund reasonable reserves), there shall be calculated the
percentage of the total net proceeds distributable to each class of Partners based on Section
10.2(b) or Section 10.3, as applicable, treating cash payments and purchase money
indebtedness principal interchangeably for this purpose, and the respective classes shall
receive such respective percentages of the net cash purchase price and purchase money
principal. Payments on such purchase money indebtedness retained by the Partnership
shall be distributed in accordance with the respective portions of principal allocated to the
respective classes of Partners in accordance with the preceding sentence, and if any such
purchase money indebtedness shall be sold, the sale proceeds shall be allocated in the same
proportion.
iv) Income, gain, loss and deduction with respect to any asset which has a
variation between its basis computed in accordance with the applicable provisions of the
Allocation Regulations and its basis computed for federal income tax purposes shall be
shared among the Partners so as to take account of such variation in a manner consistent
with the principles of Section 704(c) of the Code and Section 1.704-1(b)(2)(iv)(g) of the
Allocation Regulations.
v) The terms “Profits” and “Losses” used in this Agreement shall mean income
and losses, and each item of income, gain, loss, deduction or credit entering into the
computation thereof, as determined in accordance with the accounting methods followed
by the Partnership and computed in accordance with Treasury Regulation Section 1.704-
1(b)(2)(iv). Profits and Losses for federal income tax purposes shall be allocated in the
same manner as set forth in this Article X, except as provided in Section 10.4(b)(iv).
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vi) Nonrecourse Deductions shall be allocated 0.005% to the Managing
General Partner, 0.005% to the Class B Limited Partner, and 99.99% to the Investment
Limited Partner.
vii) Partner Nonrecourse Deductions shall be allocated to and among the
Partners in the manner provided in the Allocation Regulations.
viii) Subject to the provisions of Section 10.4(b)(xix), if there is a net decrease
in Partnership Minimum Gain for a Partnership Fiscal Year, the Partners shall be allocated
items of Partnership income and gain in accordance with the provisions of Section 1.704-
2)(f) of the Allocation Regulations.
ix) Subject to the provisions of Section 10.4(b)(xix), if there is a net decrease
in Partner Nonrecourse Debt Minimum Gain for a Partnership Fiscal Year then any Partner
with a Share of such Partner Nonrecourse Debt Minimum Gain shall be allocated items of
Partnership income and gain in accordance with the provisions of Section 1.704-2(i)(4) of
the Allocation Regulations.
x) Subject to the provisions of 10.4(b)(vi) through 10.4(b)(ix) above, in the
event that any Partner unexpectedly receives any adjustments, allocations or distributions
described in Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Allocation Regulations, items
of Partnership income and gain shall be specially allocated to each such Partner in an
amount and manner sufficient to eliminate, to the extent required by the Allocation
Regulations, the Adjusted Capital Account Deficit of such Partner as quickly as possible.
This Section 10.4(b)(x) is intended to constitute a “qualified income offset” provision
within the meaning of the Allocation Regulations and shall be interpreted consistently
therewith. For purposes of this Section 10.4(b)(x), a Partner’s Capital Account shall be
treated as reduced by Qualified Income Offset Items.
xi) Subject to the provisions of Sections 10.4(b)(vi) through 10.4(b)(x) above,
in no event shall any Limited Partner be allocated Losses that would cause it to have an
Adjusted Capital Account Deficit as of the end of any Partnership Fiscal Year. Any Losses
that are not allocated to a Limited Partner by reason of the application of the provisions of
this Section 10.4(b)(xi) shall be allocated to the General Partner. [As necessary to comply
with Sections 10.4(b)(vi) through 10.4(b)(xi) and achieve the objectives of this Section
10.4(b)(xi), the General Partner may cause individual items of income, loss, deduction and
credit to be allocated separately to the Limited Partners and the General Partner.]
xii) Subject to the provisions of Sections 10.4(b)(vi) through 10.4(b)(xi) above,
in the event that any Partner has an Adjusted Capital Account Deficit at the end of any
Partnership Fiscal Year, items of Partnership income and gain shall be specially allocated
to each such Partner in the amount of such Adjusted Capital Account Deficit as quickly as
possible.
xiii) Syndication Expenses for any Fiscal Year or other period shall be specially
allocated to the Investment Limited Partner.
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xiv) For purposes of determining the Profits, Losses, Tax Credits or any other
items allocable to any period, Profits, Losses, Tax Credits and any such other items shall
be determined on a daily, monthly, or other basis, as determined by the General Partner
using any permissible method under Code Section 706 and the Treasury Regulations
thereunder.
xv) To the extent that interest on loans (or other advances which are deemed to
be loans) made by a General Partner to the Partnership is determined to be deductible by
the Partnership in excess of the amount of interest actually paid by the Partnership, such
additional interest deduction(s) shall be allocated solely to such General Partner.
xvi) To the extent the Partnership earns interest income on the deposit or
investment of Mortgage Loan proceeds, an equal amount of gross income shall be specially
allocated to the General Partner. Any taxable income of the Partnership resulting from its
receipt of donations, contributions, grants or subsidies (whether in the form of property,
cash, or forgivable debt) shall be specially allocated to the General Partner.
xvii) For purposes of determining each Partner’s proportionate share of the
excess Nonrecourse Liabilities of the Partnership pursuant to Section 1.752-3(a)(3) of the
Allocation Regulations, the Investment Limited Partner shall be deemed to have a 99.99%
interest in Profits, the Managing General Partner shall be deemed to have a 0.005% interest
in Profits, and the Class B Limited Partner shall be deemed to have a 0.005% interest in
Profits.
xviii) Any recapture of any Tax Credit shall be allocated to and among the
Partners in the same manner as such Tax Credit was allocated to the Partners.
xix) If for any Fiscal Year the application of the minimum gain chargeback
provisions of Section 10.4(b)(viii) or Section 10.4(b)(ix) of this Agreement would cause
distortion in the economic arrangement among the Partners and it is not expected that the
Partnership will have sufficient other income to correct that distortion, the General Partner
may request a waiver from the Commissioner of the Service of the application in whole or
in part of Section 10.4(b)(viii) or Section 10.4(b)(ix) in accordance with Section 1.704-
2(f)(4) of the Allocation Regulations. Furthermore, if additional exceptions to the
minimum gain chargeback requirements of the Allocation Regulations have been provided
through private letter rulings issued to the Partnership or published revenue rulings or other
binding administrative authority, the General Partner is authorized to cause the Partnership
to take advantage of such exceptions if to do so would be in the best interest of a majority
in interest of the Partners.
xx) In the event that any fee payable to any for-profit General Partner or any
for-profit Affiliate thereof shall instead be determined to be a non -deductible, non-
capitalizable distribution from the Partnership to a Partner for federal income tax purposes,
then there shall be allocated to such General Partner an amount of gross income equal to
the amount of such distribution.
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xxi) In applying the provisions of Article X with respect to distributions and
allocations, the following ordering of priorities shall apply:
1) Capital Accounts shall be deemed to be reduced by Qualified
Income Offset Items.
2) Capital Accounts shall be reduced by distributions of Cash Flow
under Clause Tenth of Section 10.2(a).
3) Capital Accounts shall be reduced by distributions of Capital
Proceeds under Clause Fifth of Section 10.2(b).
4) Capital Accounts shall be increased by any minimum gain
chargeback under Section 10.4(b)(viii) or Section 10.4(b)(ix).
5) Capital Accounts shall be increased by any qualified income offset
required under Section 10.4(b)(x).
6) Capital Accounts shall be increased by allocations of Operating
Profits under Section 10.1(a).
7) Capital Accounts shall be reduced by allocations of Operating
Losses under Section 10.1(a).
8) Capital Accounts shall be reduced by allocations of Losses under
Section 10.1(b).
9) Capital Accounts shall be increased by allocations of Profits under
Section 10.1(b).
10) All remaining allocations shall be made in the order in which they
appear in Section 10.4(b).
xxii) To the maximum extent permitted under the Code, allocations of Profits and
Losses in any period shall be modified so that the Partners’ Capital Accounts reflect the
amount they would have reflected if adjustments required by Sections 10.4(b)(x),
10.4(b)(xi) and 10.4(b)(xii) in prior periods had not occurred.
xxiii) In the event the Investment Limited Partner shall give notice to the General
Partner that, in the reasonable judgment of the Investment Limited Partner, its Capital
Account as of the close of the tax year in which such notice is given either will have a zero
balance or there will be an increase in Partner Nonrecourse Debt Minimum Gain for such
year that is attributable to the Mortgage Loans or the Deferred Development Fee Note, the
General Partners shall take all such action as may be necessary to assure that any
outstanding balance of any Mortgage Loan or Deferred Development Fee Note shall
constitute a “partnership nonrecourse liability” of the Partnership, as such term is defined
in Treasury Regulation Section 1.752-1(a)(2) or any successor regulation. One such action
shall be the assignment of any Mortgage Loan or Deferred Development Fee Note to an
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Entity that is not a “related person,” as defined in Section 42(d)(2)(D)(iii) of the Code, to
the Partnership.
xxiv) The Partners intend that the total of all amounts paid or distributed to the
Seller or any Person or Entity which is a “related person” to the Seller within the meaning
of Section 42(d)(2)(D)(iii) of the Code (each, a “Seller Related Entity” and collectively,
the “Seller Related Entities”), whether as fees or distributions, and whether paid directly
by the Partnership to the Seller Related Entities or by the Partnership to the General Partner
and then distributed or paid by the General Partner to any Seller Related Entity, shall not
exceed 50% of the cumulative aggregate amount available to be paid or distributed by the
Partnership (excluding, for this purpose, any Loans payable to a Seller Related Entity).
Any excess payment or distribution shall be deemed to be a loan from the Partnership
repayable by the Seller Related Entity within thirty (30) calendar days.
xxv) The Partners intend that allocations of income, gain, loss, deduction, and
credit to the Seller Related Entities, whether individually or in the aggregate, shall not
exceed 50% of the cumulative aggregate amount available to be allocated by the
Partnership. Accordingly, all provisions of this Agreement shall be construed and
interpreted in a manner consistent with the Partners’ intentions and no item of income,
gain, loss, deduction, or credit shall be allocated under any provision of this Agreement if,
as a result of such allocation, the Seller Related Entities would have, either directly or
indirectly, a greater than 50% interest in the capital or profits of the Partnership within the
meaning of Sections 179(d), 267(b) and/or 707(b) of the Code and the Treasury
Regulations promulgated thereunder.
10.5 Authority of the General Partner to Vary Allocations to Preserve and Protect the
Partners’ Intent
a) It is the intent of the Partners that each Partner’s distributive share of Profits, tax -
exempt income, Losses, non-deductible non-capitalizable expenditures and Tax Credits (and items
thereof) shall be determined and allocated in accordance with this Agreement to the fullest extent
permitted by Section 704(b) of the Code and the Allocation Regulations. In order to preserve and
protect the determinations and allocations provided for in this Agreement, the General Partner is
hereby authorized and directed to allocate Profits, tax-exempt income, Losses, non-deductible non-
capitalizable expenditures and credits (and items thereof) arising in any Fiscal Year differently
than otherwise provided for in this Agreement to the extent that allocating Profits, tax -exempt
income, Losses, non-deductible non-capitalizable expenditures or credits (or any item thereof) in
the manner provided for herein would cause the determinations and allocations of each Partner’s
distributive share of Profits, tax-exempt income, Losses, non-deductible non-capitalizable
expenditures or credits (or any item thereof) not to be permitted by Section 704(b) of the Code.
Any allocation made pursuant to this Section 10.5 shall be deemed to be a complete substitute for
any allocation otherwise provided for in this Agreement and shall only be made with the Consent
of the Investment Limited Partner.
b) In making any allocation (the “New Allocation”) under Section 10.5(a), the General
Partner is authorized to act only with the Consent of the Investment Limited Partner after having
been advised in writing by the Tax Accountants that, under Section 704(b) of the Code and/or the
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Allocation Regulations, (i) the New Allocation is necessary, and (ii) the New Allocation is the
minimum modification of the allocations otherwise provided for in this Agreement necessary in
order to assure that, either in the then-current Fiscal Year or in any preceding Fiscal Year, each
Partner’s distributive share of Profits, tax-exempt income, Losses, non-deductible non-
capitalizable expenditures and Tax Credits (or any item thereof) is determined and allocated in
accordance with this Agreement to the fullest extent permitted by Section 704(b) of the Code and
the Allocation Regulations.
c) New Allocations made by the General Partner under Section 10.5 shall be deemed
to be made pursuant to the fiduciary obligation of the General Partner to the Partnership and the
Limited Partners, and no such allocation shall give rise to any claim or cause of action by any
Limited Partner.
10.6 Recapture Amount
a) If at any time during the “compliance period” (as defined in Section 42(i)(1) of the
Code), the Apartment Complex ceases to be a “qualified low income housing project” (as defined
in Section 42(g)(1) of the Code), any Low-Income Unit in the Apartment Complex ceases to be a
low income unit” (as defined in Section 42(i)(3) of the Code), or for any other reason all or any
portion of credits allowed to the Partnership and its Partners under Section 42 of the Code are
subject to recapture pursuant to Section 42(j) of the Code (such an occurrence being referred to
herein as a “Recapture Event”), the Investment Limited Partner shall become entitled to receive
funds equal to the “Recapture Amount”. The Recapture Amount shall be in the form of an offset
against future Installments, a cash distribution or payment to the Investment Limited Partner, in
each case as set forth in Sections 5.1(e) and/or (f).
b) The Recapture Amount is an amount equal the sum of (i) the “credit recapture
amount” allocable to the Investment Limited Partner as defined in Section 42(j) of the Code plus
ii) all income taxes payable by the Investment Limited Partner (or its partners or members) as
computed under Section 10.6(d).
c) Any Recapture Amount distributable to the Investment Limited Partner pursuant to
the foregoing provisions shall be distributed as funds become available for such distributions, but
such distributions shall not be made prior to (i) in the case of the “credit recapture amount”, the
year of the Recapture Event and (ii) in the case of any credits disallowed with respect to any year
subsequent to the Recapture Event, in each such subsequent year.
d) Determination of the Recapture Amount shall be made on the assumption that
receipt or accrual by each partner of the Investment Limited Partner of an y amounts distributable
to such partner under Subsection (c) above will currently be subject to United States federal and
State income tax at the highest marginal rate applicable to corporations for the year(s) in question
and assuming the non-applicability of the alternative minimum tax).
e) All computations required under this Section 10.6 shall be made reasonably by the
Investment Limited Partner, and the results of such computations, together with a statement
describing in reasonable detail the manner in which such computations were made, shall be
delivered to the Managing General Partner in writing. Within fifteen (15) days following receipt
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of such computation, the Managing General Partner may request that the Auditors determine
whether such computations are reasonable and are not erroneous. If the Auditors determine that
such computations are unreasonable or contain errors, then the Auditors shall determine what they
believe to be the appropriate computations. If the Investment Limited Partner does not agree with
the determination of the Auditors, then another accounting firm other than the Auditors to be
selected jointly by the Investment Limited Partner and the Managing General Partner or, if they
cannot agree, by the American Arbitration Association, from among the ten largest national
accounting firms, shall make such computations. The computations of the Investment Limited
Partner, the Auditors, or the other accounting firm so selected, whichever is applicable, shall be
final, binding and conclusive upon the parties. All fees and expenses payable to an accounting
firm other than the Auditors under this paragraph shall be borne solely by the Managing General
Partner. All fees and expenses payable to the American Arbitration Association shall be borne
equally by the General Partner and the Investment Limited Partner.
ARTICLE XI
Management Agent
11.1 General
The General Partner shall engage the Management Agent to manage the Apartment
Complex pursuant to the Management Agreement. The Management Agent shall receive a
Management Fee of those amounts payable from time to time by the Partnership to the
Management Agent for management services in accordance with a management contract approved
by any Agency or Lender with the right to approve the same, or, when any such management
contract is not subject to the approval of any Agency or Lender, in accordance with a reasonable
and competitive fee arrangement, provided, however, that at any time that the Apartment Complex
is operating below a Debt Service Coverage Ratio of 1.00 to 1.00, the Management Agent agrees
to subordinate the Management Fee to the extent necessary to cause the Debt Service Coverage
Ratio to be 1.00 to 1.00 (the “Subordinated Management Fee”). The initial Management Agent
shall be the Housing Authority. From and after the Admission Date, the Partnership shall not enter
into any Management Agreement or modify or extend any Management Agreement unless (i) the
General Partner shall have obtained the prior Consent of the Special Limited Partner to the identity
of the Management Agent and the terms of the Management Agreement or the modification or
extension thereof and (ii) such new Management Agreement or modified or extended Management
Agreement provides that it is terminable by the Partnership on thirty (30) days’ notice by the
Partnership in the event of any change in the identity of the General Partner. The Management
Agent shall maintain insurance in accordance with the applicable Insurance Requirements set forth
in Exhibit D. Copies of such policies (or binders) shall be provided to the Partnership and the
Investment Limited Partner within thirty (30) days after the effective date of the Management
Agreement and annually thereafter.
11.2 Fees
Notwithstanding the provisions of Section 11.1, however, should the Investment General
Partner or an Affiliate thereof perform property management services for the Partnership, property
management, rent-up or leasing fees shall be paid to the Investment General Partner or such
Affiliate only for services actually rendered and shall be in an amount equal to the lesser of (i) fees
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competitive in price and terms with those of non-affiliated Persons rendering comparable services
in the locality where the Apartment Complex is located and which could reasonably be availab le
to the Partnership, or (ii) five percent (5%) of the gross revenues of the Apartment Complex. No
duplicate property manager fees shall be paid to any Person.
11.3 Removal and Replacement
If (i) the Apartment Complex shall be subject to a substantial building code violation which
shall not have been cured within six (6) months after notice from a Governmental Authority or (ii)
the Partnership shall not have achieved a 1.15 to 1.00 Debt Service Coverage Ratio during any
Fiscal Year commencing on January 1, 2017 or (iii) an Event of Bankruptcy shall occur with
respect to the Management Agent, or (iv) the Management Agent shall commit willful misconduct
or gross negligence in its conduct of its duties and obligations under the Management Agreement
or (v) there is any change in the Persons acting as General Partners (to which the Special Limited
Partner has not consented), or (vi) the Management Agent is cited by the Credit Agency or any
other Tax Credit monitoring or compliance agency of the State or any other Governmental
Authority for a violation or alleged violation of any applicable rules, regulations or requirements,
including, without limitation, non-compliance with the Agreed-Upon Set-Aside Test, the Rent
Restriction Test or any other Tax Credit-related provision, or (vii) the Management Agent fails to
promptly and competently perform (after notice and a cure period of at least 45 days) all duties of
the Management Agent under the Management Agreement, or (viii) the Apartment Complex fails
to generate at least 90% of the Revised Projected Tax Credits in any calendar year, or (ix) the
Management Agent fails to materially comply with the record keeping, tenant qualification and
rental requirements of the Extended Use Agreement, and Code Section 42 and the Regulations,
rulings and policies related thereto, or (x) the Apartment Complex is materially mismanaged, or
xi) the General Partner is removed, then, upon request by the Special Limited Partner and subject
to Agency and Lender approval, if required, the General Partner shall cause the Partnership to
promptly terminate the Management Agreement with the Management Agent and appoint a new
Management Agent selected by the Special Limited Partner, which new Management Agent shall
not be an Affiliate of a General Partner. Each General Partner hereby grants to the Special Limited
Partner an irrevocable (to the extent permitted by applicable law) power of attorney coupled with
an interest to take any action and to execute and deliver any and all documents and instruments on
behalf of such General Partner and the Partnership as the Special Limited Partner may deem to be
necessary or appropriate in order to effectuate the provisions of this Article XI. Subject to any
Requisite Approvals, the Partnership shall not enter into any future management arrangement or
renew or extend any existing management arrangement unless such arrangement is terminable
without penalty upon the occurrence of the events described in this Article XI.
11.4 Lack of Management Agent
The General Partner shall have the duty to manage the Apartment Complex during any
period when there is no Management Agent.
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ARTICLE XII
Books and Records, Accounting, Tax Elections, Etc.
12.1 Books and Records
The Partnership shall maintain all books and records which are required under the Act or
by any Governmental Authority and may maintain such other books and records as the General
Partner in its discretion deems advisable or as reasonably requested by the Special Limited Partner.
Each Limited Partner, or its duly authorized representatives, and the Class B Limited Partner shall
have access to the records of the Partnership at the principal office of the Partnership at any and
all reasonable times, and may inspect and copy any of such records. A lis t of the name and
addresses of all of the Limited Partners shall be maintained as part of the books and records of the
Partnership and shall be mailed to any Limited Partner upon request. The Partnership may require
reimbursement for any out of pocket expenses which it incurs as a result of the exercise by any
Limited Partner and the Class B Limited Partner of its rights under this Section 12.1, including,
without limitation, photocopying expenses. The General Partner shall cause the Partnership to
maintain at all times all informational and qualification files of each tenant of the Apartment
Complex in fire proof storage facilities (whether paper files or micro fiche or film) and in a secure
location controlled by the Partnership, for the later of six (6) years after completion of the
Compliance Period or as long as is required under applicable law.
12.2 Bank Accounts
The bank accounts of the Partnership shall be maintained in the Partnership’s name with
such financial institutions as the General Partner shall determine. Withdrawals shall be made only
in the regular course of Partnership business on such signature or signatures as the General Partner
may determine. All deposits (including security deposits and other funds required to be escrowed
by any Lender or Agency) and other funds not needed in the operation of the business shall be
deposited, if required by applicable law and to the extent permitted by applicable Agency or Lender
requirements, in interest bearing accounts or invested in United States Government obligations
maturing within one year.
12.3 Auditors
a) The Auditors shall prepare, for execution by the General Partner, all tax returns of
thePartnership. Priorto the filingof thePartnership tax returns, and in no event later than February
1 of each Fiscal Year, the Auditors shall deliver the tax returns for the prior Fiscal Year to the Tax
Accountants for their review and comment. If a dispute arises between the Auditors and the Tax
Accountants over the proper preparation of the tax returns and such dispute cannot be resolved by
the Auditors and the Tax Accountants by March 1 of such Fiscal Year, then the Tax Accountants
shall make the final decision with respect to whether any changes are necessary. The Partnership
shall reimburse the Investment Limited Partner and its Affiliates for all costs and expenses paid to
the Tax Accountants for the aforementioned services.
b) The Auditors shall certify all annual financial reports to the Partners in accordance
with generally accepted auditing standards.
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c) If the Partnership fails to fulfill any of its obligations under Section 12.7(a)(i) and/or
Section 12.7(a)(ii) within the time periods set forth therein, at any time thereafter upon written
notice from the Special Limited Partner, the General Partner shall appoint replacement Auditors.
If no such notice from the Special Limited Partner is delivered, the Consent of the Special Limited
Partner must be received to the appointment of replacement Auditors. If the General Partner fails
to appoint replacement Auditors within thirty (30) days of the notice from the Special Limited
Partner to replace the Auditors, then the Special Limited Partner shall appoint replacement
Auditors of its own choosing, the cost of which shall be borne by the Partnership as a Partnership
expense. All of the Partners hereby grant to the Special Limited Partner a special power of
attorney, irrevocable to the extent permitted by law, coupled with an interest, to so appoint
replacement Auditors and to anything else which in the judgment of the Special Limited Partner
may be necessary or appropriate to accomplish the purposes of this Section 12.3(c).
d) On or prior to the date which is thirty (30) days after the Admission Date, the
General Partner shall cause the Partnership (i) in writing, to engage the Auditors to perform the
services required herein and (ii) to deliver to the Investment Limited Partner copies of all such
engagement letters and agreements.
12.4 Cost Recovery and Elections
a) With respect to all depreciable assets for which cost recovery deductions are
permitted, the Partnership shall elect to use, so far as permitted by the provisions of the Code,
accelerated cost recovery methods. However, with the Consent of the Investment Limited Partner,
the Partnership may change to another method of cost recovery if such other method is, in the
opinion of the Auditors, more advantageous to the Investment Limited Partner (and the limited
partners thereof).
b) Subject to the provisions of Section 12.5, all other elections required or permitted
to be made by the Partnership under the Code shall be made by the General Partner with the
Consent of the Investment Limited Partner, in such manner as will, in the opinion of the Auditors,
be most advantageous to the Investment Limited Partner and the limited partners thereof.
12.5 Special Basis Adjustments
In the event of a transfer of all or any part of the Interest of the Investment Limited Partner
or a transfer of all or any part of an interest of a partner of the Investment Limited Partner, the
Partnership shall elect, upon the request of the Investment Limited Partner, pursuant to Section
754 of the Code, to adjust the basis of the Partnership property. Any adjustments made pursuant
to said Section 754 shall affect only the successor in interest to the transferrin g Partner or partner
thereof. Each Partner will furnish the Partnership all information necessary to give effect to any
such election.
12.6 Fiscal Year
Unless otherwise required by law, the Fiscal Year and tax year of the Partnership shall be
the calendar year. The books of the Partnership shall be maintained on an accrual basis.
12.7 Information to Partners
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a) The General Partner shall cause to be prepared and distributed to all Persons who
were Partners at any time during a Fiscal Year of the Partnership:
i) Within sixty (60) days after the end of each Fiscal Year of the Partnership,
A) a draft balance sheet as of the end of such Fiscal Year, a statement of income, a
statement of partners’ equity, and a statement of cash flows, each for the Fiscal Year then
ended, all of which, except the statement of cash flows, shall be prepared in accordance
with generally accepted accounting principles and accompanied by a report of the Auditors
containing an opinion of the Auditors (with final versions of such items to be delivered
within seventy-five (75) days following the end of such Fiscal Year), and (B) a report of
the activities of the Partnership during the period covered by the report. With respect to
any distribution to the Investment Limited Partner, the report called for shall separately
identify distributions from (1) Cash Flow from operations during the period, (2) Cash Flow
from operations during a prior period which had been held as reserves, (3) proceeds from
disposition of property and investments, (4) lease payments on net leases with builders and
sellers, (5) reserves from the gross proceeds of the Capital Contributions of the Investment
Limited Partner, (6) borrowed monies, and (7) transactions outside of the ordinary course
of business with a description thereof.
ii) Within thirty (30) days after the end of each Fiscal Year of the Partnership,
all information relating to the Partnership and/or the Apartment Complex which is
necessary, in the view of the Tax Accountants, for the preparation of the Limited Partners’
federal income tax returns for the prior Fiscal Year.
iii) Within thirty (30) days after the end of each quarter of a Fiscal Year of the
Partnership, a report containing:
A) a balance sheet, which may be unaudited;
B) a statement of income for the quarter then ended, which may be
unaudited;
C) a certification of the General Partner that the Apartment Complex
and its tenants are in compliance with all applicable federal, state
and local requirements and regulations;
D) a Tax Credit monitoring form, a copy of the rent roll for the
Apartment Complex for each month during such quarter, a statement
of income and expenses, an operating statement and an
Occupancy/Rental Report, all in a form specified by the Special
Limited Partner;
E) a certification of the General Partner that it has received no notice
of a building, health or fire code violation or similar violation of a
governing law, ordinance or regulation against the Apartment
Complex, or, if there is any such violation, a detailed description
thereof; and
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F) all other information which would be pertinent to a reasonable
investor regarding the Partnership and its activities during the
quarter covered by the report.
b) Within ninety (90) days after the end of each Fiscal Year of the Partnership a copy
of the annual report to be filed with the United States Treasury concerning the status of the
Apartment Complex as low-income housing and, if required, a certificate to the appropriate state
agency concerning the same.
c) Upon the written request of the Investment Limited Partner for further information
with respect to any matter covered in item (a) or item (b) above, the General Partner shall furnish
such information within thirty (30) days of receipt of such request.
d) Prior to October 15 of each Fiscal Year, the Partnership shall send to the Investment
Limited Partner an estimate of the Investment Limited Partner’s share of the Tax Credits, Profits
and Losses of the Partnership for federal income tax purposes for the current Fiscal Year. Such
estimate shall be prepared by the General Partner and the Auditors and shall be in the form
specified by the Special Limited Partner.
e) The General Partner shall send the Investment Limited Partner a detailed report
within fifteen (15) days after the end of any calendar quarter during which any of the following
events occur:
i) there is a material default by the Partnership under any Project Document
or in the payment of any mortgage, taxes, interest or other obligation on secured or
unsecured debt,
ii) any reserve has been reduced or terminated by application of funds therein
for purposes materially different from those for which such reserve was established,
iii) any General Partner has received any notice of a material fact which may
substantially affect further distributions or Tax Credit allocations to any Limited Partner,
or
iv) any Partner has pledged or collateralized its Interest in the Partnership.
f) After the Admission Date, the Partnership shall send to the Investment Limited
Partner copies of all applicable periodic reports covering the status of project operations and any
matters relating to the Tax Credit as are required by any Lender or Agency. The General Partner
shall deliver to the Investment Limited Partner copies of all construction draw requests (and all
supporting documentation) submitted to the Lender prior to the Admission Date, if any, and shall
deliver to the Investment Limited Partner simultaneously with their submission to the Lender
copies of all construction draw requests (and all supporting documentation) submitted to the
Lender on or after the Admission Date.
g) On or before May 1 of each Fiscal Year, the Partnership shall send to the
Investment Limited Partner a report on operations, in the form supplied by the Special Limited
Partner.
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h) The General Partner hereby consents to each Lender or Agency providing the
Investment Limited Partner with copies of all material communications between any such Lender
orAgency and the General Partner and/or the Partnership, including, but not limited to, any notices
of default.
i) If the earlier of (A) the Completion Date or (B) the date upon which tenants first
occupied apartment units in the Apartment Complex after the construction of such units, shall have
occurred six (6) months or more prior to the date on which the Investment Limited Partner acquired
its Interest in the Partnership, then the General Partner shall cause to be prepared and delivered to
the Investment Limited Partner within sixty (60) days of the Admission Date the following items:
i) An unaudited statement of income of the Partnership for the year (or such
shorter period as there may be from the date of the most recent audited statement of income
of the Partnership) ended on the date upon which the Investment Limited Partner acquired
its Interest in the Partnership; and
ii) An audited statement of income of the Partnership for any fiscal year of the
Partnership ending between (A) the earlier of (1) the Completion Date or (2) the date upon
which tenants first occupied apartment units in the Apartment Complex after the
rehabilitation of such units and (B) the date upon which the Investment Limited Partner
acquired its Interest in the Partnership.
j) Within thirty (30) days following the Completion Date, the General Partner shall
prepare, or cause the Auditors to prepare, and deliver to each Limited Partner a Tax Cred it basis
worksheet for each building in the Apartment Complex, all in a form specified by the Special
Limited Partner.
k) Promptly after Permanent Mortgage Commencement, the General Partner shall
send to the Special Limited Partner a closing binder containing photocopies of the fully executed
versions of all documents signed in connection with the Permanent Loan(s). From and after any
date upon which the General Partner receives notice from the Special Limited Partner that the
Special Limited Partner would like copies of the monthly rent rolls for the Apartment Complex to
be sent to the Special Limited Partner, the General Partner shall send copies of the rent rolls to the
Special Limited Partner no later than ten (10) days after the expiration of each month.
l) If the General Partner does not cause the Partnership to fulfill its obligations under
Section 12.7(a)(i) and/or Section 12.7(a)(ii) within the time periods set forth therein, the General
Partner shall pay as damages the sum of $250 per day (plus interest at a rate equal to the Prime
Rate plus three percent (3%)) to the Investment Limited Partner until such obligations shall have
been fulfilled. Such damages shall be paid forthwith by the General Partner, and the failure to pay
any such damages shall constitute a material default by the General Partner hereunder. In addition,
if the General Partner shall fail to pay any such damages, the General Partner and its Affiliates
shall forthwith cease to be entitled to the distribution of any Cash Flow or Capital Proceeds to
which they may otherwise be entitled hereunder. Such distributions of Cash Flow and Capital
Proceeds shall be restored only upon the payment of such damages in full, and any amount of such
damages not so paid shall be deducted against distributions of Cash Flow and Capital Proceeds
otherwise due to the General Partner or its Affiliates.
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m) On or before December 1 of each Fiscal Year, the General Partner shall cause the
Partnership to send to the Investment Limited Partner an operating budget of the Apartment
Complex for the upcoming Fiscal Year. The Special Limited Partner shall have the right to review
and comment on the budget, and the General Partner shall incorporate the Special Limited
Partner’s recommendations, subject to the approval of the Agency. If the General Partner and the
Special Limited Partner are unable to agree on a budget for a particular Fiscal Year, the budget for
such year shall be the budget for the preceding year increased by 5%. The General Partner shall
keep the Special Limited Partner informed concerning the general state of the business and
financial condition of the Partnership and shall, upon the reasonable request of the Special Limited
Partner, furnish to the Special Limited Partner full information, accounts and documentation
concerning the state of the business and financial condition of the Partnership. Such budget shall
include, but not be limited to:
i) an overall assessment of the market in the general vicinity of the Apartment
Complex,
ii) an assessment of repairs and capital improvements needed and the priority
of such items; and
iii) a proposed repairs and capital improvements budget for the year affected.
n) Notwithstanding anything to the contrary contained herein, the General Partner
shall cause to be conducted and delivered to the Limited Partners pursuant to Section 5.1(a) an
audit on one hundred (100%) percent of the initial leases or occupancy agreements executed in
connection with the Apartment Complex in order to ensure compliance with the applicable Rent
Restriction Test, Minimum Set Aside Test, or any other applicable tenant restriction test (“Initial
Compliance Audit”). The Special Limited Partner shall select at its option, any combination of
occupancy agreements which shall comprise the Initial Compliance Audit (the “Selected
Occupancy Agreements”). The Initial Compliance Audit shall consist of a review of the complete
tenant files in connection with the Selected Occupancy Agreements, including but not limited to
any tenant financial information. Further, the Initial Compliance Audit shall be conducted with
the cooperation of, and at the sole cost and expense of the General Partner if the Initial Compliance
Audit reveals an instance of material noncompliance. An instance of material noncompliance shall
be deemed to exist if at least five (5) occupancy agreements reveal noncompliance or violations of
any applicable tenant restriction test. If the Initial Compliance Audit does not reveal any instance
of material noncompliance the Partnership shall bear the cost of such audit.
o) The General Partner shall deliver to the Investment Limited Partner audited annual
financial statements of the General Partner within one hundred eighty (180) days of the end of
each fiscal year of the Partnership, unless waived by the Special Limited Partner, in writing.
12.8 Expenses of the Partnership.
All expenses of the Partnership shall be billed directly to and paid by the Partnership.
12.9 Review of Compliance.
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The General Partner shall, within seventy-five (75) days after the end of each Fiscal Year
of the Partnership, certify to each Limited Partner in the same scope and manner that it is required
to certify, if requested, to the Agency, that the Partnership is in compliance with all regulations
and procedures relating to the operation of the Apartment Complex as a qualified Tax Credit
project within the meaning of Section 42(g) of the Code. The Special Limited Partner may, at its
own expense, conduct or cause to be conducted an audit or review of the Partnership’s compliance
with all regulations and procedures relating to the operation of the Apartment Complex as a
qualified Tax Credit project within the meaning of Section 42(h) of the Code. Such audit or review
shall be conducted upon not less than thirty (30) nor more than ninety (90) days prior written
request. The General Partner shall cooperate with any such audit by making appropriate personnel
of the General Partner and Property Manager and all books and records of the Apartment Complex
and Partnership available to the Investment Limited Partners or their representatives at the offices
of the Partnership during regular business hours.
12.10 Inspections.
The Special Limited Partner, at its sole cost and expense, shall have the right to conduct
physical inspections of the Apartment Complex on an annual basis and the General Partner shall
take all reasonable steps necessary to cooperate therewith.
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ARTICLE XIII
General Provisions
13.1 Restrictions by Reason of Section 708 of the Code
No Disposition of an Interest may be made if the Interest sought to be Disposed of, when
added to the total of all other Interests Disposed of within the period of twelve (12) consecutive
months prior to the proposed date of the Disposition, would, in the opinion of the Tax Accountants
or tax counsel to the Partnership, result in the termination of the Partnership under Section 708 of
the Code, unless the transferring Partner agrees to indemnify the other Partners for any federal
income tax liability resulting from such Disposition. This Section 13.1 shall have no application
to any required repurchase of the Investment Limited Partner’s Interest. Any Disposition in
contravention of any of the provisions of this Section 13.1 shall be void ab initio and ineffectual
and shall not bind or be recognized by the Partnership. Notwithstanding the foregoing provisions
of this Section 13.1, however, the Investment Limited Partner may waive the provisions of this
Section 13.1 at any time as to a Disposition or series of Dispositions, and in the event of such a
waiver, this Section 13.1 shall have no force or effect upon such Disposition or series of
Dispositions.
13.2 Amendments to Certificates
Within one hundred twenty (120) days after the end of the Partnership Fiscal Year in which
the Investment Limited Partner shall have received any distributions under Article X, the General
Partner shall file an amendment to the Certificate reducing the amount of its allocable share of
such distribution the amount of Capital Contribution of the Investment Limited Partner as stated
in the last previous amendment to the Certificate. However, Schedule A shall not be amended on
account of any such distribution.
The Partnership shall amend the Certificate at least once each calendar quarter to effect the
substitution of Substitute Limited Partners, although the General Partner may elect to do so more
frequently. In the case of assignments, where the assignee does not become a Substitute Limited
Partner, the Partnership shall recognize the assignment not later than the last day of the calendar
month following receipt of notice of assignment and all documentation required in connection
therewith hereunder.
Notwithstanding the foregoing provisions of this Section 13.2, no such amendments to the
Certificate need be filed by the General Partner if the Act does not require it and the Certificate
does not identify the Limited Partners or their Capital Contributions in such capacity.
13.3 Notices
Except as otherwise specifically provided herein, all notices, demands or other
communications hereunder shall be in writing and shall be deemed to have been given when the
same are (i) deposited in the United States mail and sent by certified or registered mail, postage
prepaid, three business days after mailing, (ii) sent by nationally recognized overnight delivery
service, one business day after deposit with such nationally recognized overnight delivery service,
provided all delivery charges have been prepaid, (iii) sent by telecopier or other facsimile
transmission, answerback requested with a copy by regular mail, on the date such answerback is
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received, or (iv) delivered personally, in each case, to the parties at the addresses set forth below
or at such other addresses as such parties may designate by notice to the Partnership:
a) If to the Partnership, at the office of the Partnership set forth in Section 2.2.
b) If to a Partner, at its address set forth in the Schedule, with copies to Douglas W.
Clapp, Esq., Holland & Knight LLP, 10 St. James Avenue, Boston, MA 02116 and Paul E. Smith,
Esq., Bryan Cave LLP, 1801 13th Street, Suite 300, Boulder, CO 80302.
13.4 Word Meanings
The words such as “herein,” “ hereinafter,” “ hereof” and “ hereunder” refer to this
Agreement as a whole and not merely to a subdivision in which such words appear unless the
context otherwise requires. The singular shall include the plural, and vice versa, and each gender
masculine, feminine and neuter) shall include the other genders, unless the context requires
otherwise. Each reference to a “Section” or an “Article” refers to the corresponding Section or
Article of this Agreement, unless specified otherwise. References to Treasury Regulations
permanent or temporary) or Revenue Procedures shall include any successor provisions.
13.5 Binding Effect
The covenants and agreements contained herein shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors and assigns of the respective parties
hereto.
13.6 Applicable Law
This Agreement shall be construed and enforced in accordance with the laws of the State.
13.7 Counterparts
This Agreement may be executed in several counterparts and all so executed shall
constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not
signed the original or the same counterpart.
13.8 Financing Regulations
a) So long as any of the Project Documents are in effect, (i) each of the provisions of
this Agreement shall be subject to, and the General Partner covenants to act in accordance with,
the Project Documents; (ii) the Project Documents shall govern the rights and obligations of the
Partners, their heirs, executors, administrators, successors and assigns to the extent expressly
provided therein; (iii) upon any dissolution of the Partnership or any transfer of the Apartment
Complex, no title or right to the possession and control of the Apartment Complex and no right to
collect the rent therefrom shall pass to any Person who is not, or does not become, bound by the
Project Documents in a manner satisfactory to the Lenders and any Agency (to the extent that its
approval is required); (iv) no amendment to any provision of the Project Documents shall become
effective without the prior written consent of any Lender and/or Agency (to the extent that its
approval is required); and (v) the affairs of the Partnership shall be subject to the Regulations, and
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no action shall be taken which would require the consent or approval of any Lender and/or Agency
unless the prior consent or approval of such Lender and/or Agency, as the case may be, shall have
been obtained. No new Partner shall be admitted to the Partnership, and no Partner shall withdraw
from the Partnership or be substituted for without the consent of any Lender and/or Agency (if
such consent is then required). No amendment to this Agreement relating to matters governed by
the Regulations or requirements shall become effective until any Requisite Approvals to such
amendment shall have been obtained.
b) Any conveyance or transfer of title to all or any portion of the Apartment Complex
required or permitted under this Agreement shall in all respects be subject to all conditions,
approvals and other requirements of any Regulations applicable thereto.
13.9 Separability of Provisions
Each provision of this Agreement shall be considered separable and (a) if for any reason
any provision is determined to be invalid, such invalidity shall not impair the operation of or affect
those portions of this Agreement which are valid, and (b) if for any reason any provision would
cause the Investment Limited Partner or the Special Limited Partner (in its capacity as a Limited
Partner) to be bound by the obligations of the Partnership (other than the Regulations and the other
requirements of any Agency or Lender), such provision or provisions shall be deemed void and of
no effect.
13.10 Paragraph Titles
All article and section headings in this Agreement are for convenience of reference only
and are not intended to qualify the meaning of any article or section.
13.11 Amendment Procedure
This Agreement may be amended by the General Partner only with the Consent of the
Investment Limited Partner and the Consent of the Special Limited Partner.
13.12 Extraordinary Limited Partner Expenses
a) Any and all costs and expenses incurred by the Investment Limited Partner and/or
the Special Limited Partner in connection with exercising rights and remedies against the General
Partner with respect to this Agreement, including, without limitation, reasonable attorneys’ fees,
shall be paid by the General Partner on demand. All amounts due to the Investment Limited
Partner and/or the Special Limited Partner pursuant to this provision shall bear interest from
demand at a rate of nine percent (9%) per annum.
b) If any General Partner breaches any provision of this Agreement, the Investment
Limited Partner and/or the Special Limited Partner may employ an attorney or attorneys to protect
its rights hereunder, and the General Partner shall pay on demand the reasonable attorneys’ fees
and expenses incurred by the Investment Limited Partner and/or the Special Limited Partner,
whether or not a legal action is actually commenced against any General Partner by reason of such
breach. All amounts due to the Investment Limited Partner and/or the Special Limited Partner
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pursuant to this provision shall bear interest from demand at a rate equal to nine percent (9%) per
annum.
13.13 Time of Admission
The Investment Limited Partner shall be deemed to have been admitted to the Partnership
as of the Commencement Date for all purposes of this Agreement, including Article X, provided,
however, that if treasury regulations are issued under the Code or an amendment to the Code is
adopted which would require, in the opinion of the Auditors, that the Investment Limited Partner
be deemed admitted on a date other than as of the Commencement Date, then the General Partner
shall select a permitted admission date which is most favorable to the Investment Limited Partner.
13.14 Tax Shelter Provisions
The Partnership and its Partners shall be permitted to disclose to any and all Persons,
without limitation of any kind, the tax treatment and tax structure (as defined in Treasury
Regulation Section 1.6011-4(c) or its successor) of the transaction contemplated by this Agreement
and all materials of any kind (including opinions or other tax analyses) relating to such tax
treatment and tax structure. The General Partners will notify the Partners of any “ reportable
transaction” under Treasury Regulation Section 1.6011-4 (or its successor) in which the
Partnership shall engage.
ARTICLE XIV
Additional Provisions
14.1 Limitations on Obligations of the City
a) The City agrees that, prior to the beginning of each Fiscal Year of the City, it will
cause the officer of the City who is responsible for formulating budget proposals with respect to
payments owing by the General Partner under this Agreement (the “GP Obligations”) to (i)
estimate the maximum amount of the GP Obligations that the City expects to be payable in the
following Fiscal Year based upon then-current circumstances, including any unpaid GP
obligations for the current Fiscal Year (the “Estimated GP Obligations”), (ii) include in the annual
budget proposal submitted to the City Council for the following Fiscal Year an amount equal to
the Estimated GP Obligations (the “Requested Appropriation Amount”), and (iii) to deliver to the
Investment Limited Partner a copy of its calculation of the Requested Appropriation Amount.
Notwithstanding this directive regarding the formulation of budget proposals, any decision to
effect an appropriation for the Requested Appropriation Amount shall be made solely by the City
Council in its absolute discretion and not by any other official of the City.
b) Notwithstanding any other provision of this Agreement, the obligation of the City
to make payments with respect to any of the GP Obligations in any Fiscal Year shall be subject to
the availability of currently appropriated funds (the “City Obligation Capped Amount”).
c) No provision of this Agreement or any other Project Document shall be construed
or interpreted (i) to directly or indirectly obligate the City to make any payment in any Fiscal Year
in excess of amounts appropriated for such Fiscal Year, (ii) as creating a debt or multiple Fiscal
Year direct or indirect debt or other financialobligation whatsoever of the City within the meaning
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of Article XI, Section 6 or Article X, Section 20 of the Colorado Constitution or any other
constitutional or statutory limitation or provision; (iii) as a delegation of governmental powers by
the City; (iv) as a loan or pledge of credit or faith of the City or as creating any responsibility by
the City for any debt or liability of any person, company or entity within the meaning of Article
XI, Section 1 of the Colorado Constitution; or (v) as a donation or grant by the City to, or in aid
of, any person, company or entity within the meaning of Article XI, Section 2 of the Colorado
Constitution.
d) No provision of this Agreement or any Project Document shall be construed to
pledge or to create a lien on any class or source of moneys of the City, nor shall any provision of
this Agreement or anyProject Document restrict the future issuance of any obligations of the City,
payable from any class or source of moneys of the City.
14.2 CHFA Loan Provisions
a) Notwithstanding anything to the contrary contained herein, the following
provisions shall control for so long as CHFA holds a deed of trust on the Apartment Complex:
i) The Partnership’s sole function shall be the ownership and operation of the
Apartment Complex.
ii) Subject to the Consent of the Investment Limited Partner, the Partnership is
authorized to execute and deliver a promissory note and deed of trust to CHFA relating to
the Apartment Complex, and is also authorized to execute a regulatory agreement (the
CHFA Regulatory Agreement”) and such other loan documents as are required by CHFA
in connection with the CHFA Loan.
iii) The CHFA Regulatory Agreement shall be a binding obligation upon the
Partnership, its successors or assigns. Any incoming General Partner shall, as a condition
of receiving an interest in the Partnership, agree to be bound by the CHFA Loan
Documents, to the same extent and on the same terms as the other General Partners.
iv) Subject to the Consent of the Investment Limited Partner, the Partnership is
authorized to execute such other notes, deeds of trust, loan agreements, loan commitments
or other loan documents or agreements as may be necessary to effectuate the purposes of
this Agreement.
v) Subject to the terms of this Agreement, no General Partner will voluntarily
withdraw from, or be substituted by, the Partnership with CHFA’s prior written approval,
which approval will not be unreasonably withheld if there are one or more remaining or
substitute general partners who, in CHFA’s opinion and sole discretion, are financially
capable and competent to cause the Partnership to have the capacity to effectively own and
operate the Apartment Complex in accordance with the terms and provisions of the CHFA
Regulatory Agreement and this Agreement.
vi) The Partnership created by this Agreement maynot change itsform of entity
without the express written consent of CHFA.
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vii) No amendments will be made to this Agreement which would affect
CHFA’s rights under the CHFA Loan Documents without CHFA’s prior written approval.
viii) In the event that there is a conflict or inconsistency between any term or
provision in this Agreement and any term or provision in any of the CHFA Loan
Documents, then the terms and provisions in the CHFA Loan Documents shall control.
Remainder of Page Intentionally Left Blank]
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WITNESS the execution hereof under seal as of the date first written above.
MANAGING GENERAL PARTNER:
CITY OF ASPEN, COLORADO
By:
CLASS B LIMITED PARTNER:
ASPEN/PITKIN COUNTY HOUSING
AUTHORITY
By:
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SPECIAL LIMITED PARTNER:
BCCC, INC., a Massachusetts corporation
By:
Jeffrey H. Goldstein,
Executive Vice President
INVESTMENT LIMITED PARTNER:
BOSTON CAPITAL ROCKY MOUNTAIN
AFFORDABLE HOUSING FUND, A
LIMITED PARTNERSHIP, a Massachusetts
limited partnership, by its general partner,
a Massachusetts
limited liability company, by its manager,
a Massachusetts
corporation
By:
Jeffrey H. Goldstein,
Executive Vice President
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CONSENT AND AGREEMENT
The undersigned hereby executes this Agreement for the sole purpose of agreeing to the
provisions of Article XI of the foregoing First Amended and Restated Agreement of Limited
Partnership notwithstanding any provision of the Management Agreement to the contrary.
ASPEN/PITKIN COUNTY HOUSING
AUTHORITY
By:
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ACI AFFORDABLE 1 LLLP
SCHEDULE A
As of September 1, 2016
Capital Contribution Percentage Interests of
Operating Profits and
Losses
Percentage Interests
of Tax Credits
Managing General Partner
City of Aspen, Colorado
130 S. Galena Street
Aspen, CO 81611
100 0.005% 0.005%
Class B Limited Partner
Aspen/Pitkin County Housing
Authority
210 E. Hyman, Suite 202
Aspen, CO 81611
100 0.005% 0.005%
Special Limited Partner
Capital Contribution Percentage Interests of
Operating Profits and
Losses
Percentage Interests
of Tax Credits
BCCC, Inc.
c/o Boston Capital Partners, Inc.
One Boston Place, 21st Floor
Boston, MA 02108
10 0% 0%
Investment
Limited Partner
Total Agreed-to
Capital Contribution
Paid-In Capital
Contribution*
Percentage
Interests of
Operating
Profits and
Losses
Percentage
Interests of Tax
Credits
Boston Capital Rocky Mountain
Affordable Housing Fund, A
Limited Partnership
One Boston Place, 21st Floor
Boston, MA 02108
5,604,763 $980,834 99.99% 99.99%
Paid-in Capital Contribution as of the date of this Schedule A. Future Installments of Capital Contribution
are subject to adjustment and are due at the times and subject to the conditions set forth in the Agreement
to which this Schedule is attached.
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SCHEDULE B
INVESTMENT LIMITED PARTNER UNDERWRITTEN OPERATING EXPENSES
TO BE INSERTED]
PLEASE PROVIDE]
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EXHIBIT A
LEGAL DESCRIPTION
A parcel of land situated in Section 11, Township 10 South, Range 85 West of the 6th Principal
Meridian; said parcel is also situated within Golf Course Parcel "B" of the Maroon Creek Club
Subdivision and PUD, recorded in Plat Book 33 at Page 4, Pitkin County, Colorado being more
particularly described as follows:
Beginning at a point on the northerly boundary of said Golf Course Parcel "B", also being the
southerly right-of-way of Colorado State Highway No. 82 from which the West 1/4 corner of
Section 11 bears S 38 Degrees 21'57" W 2845.72 feet;
thence leaving said highway right-of-way line S 30 Degrees 04'07" W 257.51 feet;
thence S 27 Degrees 20'18" E 44.58 feet;
thence South 60 Degrees 43'07" E 166.50 feet;
thence S 29 Degrees 03'53" W 127.37 feet;
thence S 61 Degrees 28'57" E 156.10 feet;
thence N 29 Degrees 26'24" E 138.29 feet;
thence S 60 Degrees 38'32" E 41.08 feet;
thence N 30 Degrees 06'33" E 269.67 feet to a point on the southerly right-of-way of Colorado
Highway No. 82, also being the northwesterly corner of the Pomegranate Parcel;
thence along said highway right-of-way line N 60 Degrees 48'00" W 402.01 feet to the point of
beginning.
County of Pitkin, State of Colorado
Also described according to survey by Sopris Engineering-LLC dated April 28, 2016 as:
A parcel of land situated in Section 11, Township 10 South, Range 85 West of the 6th Principal
Meridian; said parcel is also situated within Golf Course Parcel “B” of the Maroon Creek Club
Subdivision and PUD, recorded in Plat Book 33 at Page 4, Pitkin County, Colorado. All bearings
contained herein being relative to the City of Aspen’s bearing base as shown on the 2009 Marcin
Engineering Control map, yielding a bearing of N00°17’47”E between the W¼ Corner of Section
11 and the NW Corner of Section 11, being a found U.S. GLO Brass Cap, dated 1913 and a found
3¼” Alum. Monument, L.S. 15710, respectively. Said parcel of land being more particularly
described as follows:
Beginning at a point on the northerly boundary of said Golf Course Parcel “B”, also being on the
southerly right-of-way line of Colorado State Highway No. 82; whence the W¼ Corner of said
Section 11 bears S39°12’39”W, a distance of 2845.70 feet; thence leaving said highway right-of-
way line S30°54’18”W, a distance of 257.51 feet; thence S26°30’07”E, a distance of 44.58 feet ;
thence S59°52’56”E, a distance of 166.50 feet; thence S29°54’04”W, a distance of 127.37 feet;
thence S60°38’46”E, a distance of 156.10 feet; thence N30°16’36”E, a distance of 138.29 feet;
thence S59°48’21”E, a distance of 40.98 feet to a point on the common boundary line with the
Pomegranate Inn parcel as shown on the plat of said Golf Course Parcel “B”; thence along said
common boundary line N30°56’44”E, a distance of 269.97 feet to a point on the said southerly
right-of-way line of Colorado State Highway No. 82; thence leaving said common boundary line
and along said southerly highway right-of-way line N59°57’49”W, a distance of 402.01 feet to the
point of beginning.
County of Pitkin, State of Colorado
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EXHIBIT B
PROJECTED RENTS
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EXHIBIT C
DUE DILIGENCE RECOMMENDATIONS
PLEASE PROVIDE]
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EXHIBIT D
INSURANCE REQUIREMENTS
The following are construction and permanent insurance requirements. This outline describes the
minimum types and amounts of insurance that are satisfactory to Boston Capital Partners, Inc.
Boston Capital”), its affiliates, and/or its assigns. Special Limited Partner reserves the right to
modify the insurance requirements as conditions warrant.
Carrier Requirement
All carriers must be A- or better rated according to A.M. Best Company, with a Financial
Size Category rating by A.M. Best of VII or higher.
Policy Requirements
Reference the name of the insured property (“Property”), including address, in the “description
section” of the insurance certificate.
Policies shall provide Boston Capital entities a 30-day prior written notice of cancellation,
termination, or reduction of coverage except for non-payment of premium where ten (10) days
notice shall be given.
Insurance binders, certificates, and policies must name the identified Boston Capital entity
shown below as Loss Payee and Additional Insured.
Copies of policies, binders and certificates shall be provided to Boston Capital no later than
the effective date of the policy.
Additional Insured / Loss Payee or Certificate Holder, as applicable:
For all policies, the following entities should be named:
o Investment Limited Partner – its successors and/or its assigns (“ILP”)
o Special Limited Partner – its successors and/or its assigns (“SLP”)
Construction Period Coverage
Prior to the commencement of any construction activities, the General Partner shall obtain (or
cause to be obtained by the general contractor or the architect, as applicable) the following
coverages, which shall remain in force until receipt of the certificates of occupancy for all
buildings:
Partnership
Builder’s All Risk ( Property)- if rehab, insurance must be in place to cover both
construction phase and existing structures.
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Named Insured: Partnership
Loss Payee: ILP and SLP
Form: Completed Value (Non-Reporting Form)
Perils: Special form “All Risk” policy, including wind/hail, subject to the
policy terms, conditions and exclusions
Flood and Earthquake exclusion acceptable (unless specifically
required by the Special Limited Partner as outlined in the
Additional Insurance section on Page 2 of this form)
Valuation: Replacement Cost including the existing structure(s), if applicable
Deductible: Not to exceed $10,000 for 1-100 units/$25,000 for 101 or more
units per occurrence
If located in Tier One Wind County, wind/hail deductible not to
exceed 5%. All other locations, wind/hail deductible not to
exceed $10,000 for 1-100 units/$25,000 for 101 or more units
Endorsements/Extensions: Permission to Occupy Endorsement
Renovations Coverage Endorsement
Loss of Rents (12 Months)/Delay in Start Up
Soft Costs
Ordinance and Law Coverage, if zoned legal non-conforming
Waiver of Co-insurance or Agreed Value Endorsement
Transit
Must Obtain Property Insurance on a Building by Building Basis
once the Certificate of Occupancy is received for that building
Commercial General Liability
Named Insured: Partnership
Additional Insured: ILP and SLP
Form: ISO, Occurrence Form (please supplyCertificate of Insurance on an
ACORD form 25)
Minimum Limits: Aggregate Limit $2,000,000
Products / completed operations aggregate $1,000,000
Personal & Advertising Injury $1,000,000
Each Occurrence $1,000,000
Fire Damage $50,000
Medical Expense $5,000
Note: aggregate limits must be written on a “per location” basis
Deductible No greater than $10,000
Primary and Non Contributory
Umbrella Liability
Named Insured: Partnership
Additional Insured: ILP and SLP
Minimum Limits: 1-10 stories $5,000,000
11-20 stories $10,000,000
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21 or more $25,000,000
Note: umbrella to be written on a
following form
Deductible/SIR: $10,000
Boiler and Machinery (if property has centralized equipment, boilers or elevators)
Named Insured: Partnership
Loss Payee/Additional
Interest:
ILP and SLP
Form: Comprehensive Form
Limit: Limit equal to the replacement value of the covered equipment
Valuation: Replacement Cost
Extensions: Loss of Rents with Mechanical Breakdown Endorsement
Additional Coverages, if applicable
Flood: Required if buildings are located within a 100-year flood plain
FEMA Flood Zone “A” or “V” – or any sub-designation of
Zone “A” or “V”).
Policies must be obtained through the National Flood Insurance
Plan (NFIP) in the amount equal to the lesser of the full
insurable value or $250,000 ($500,000 if 5 or more units) per
building with a deductible not to exceed $5,000 per building.
An excess Flood or Difference in Conditions (DIC) policy
should provide for the difference, if any, between the maximum
limit provided by NFIP policies and the full insurable value.
Flood policies must be in full effect for both the construction
and permanent phases.
Earthquake: If located in Seismic Zones 3 or 4, a Seismic Report must be
completed to determine Scenario Expected Loss (SEL)
If the SEL is shown to have an expected seismic damage ratio
of less than 20%, earthquake coverage is not required.
If earthquake coverage is required, it must be in full effect for
both construction and permanent phases in the amount not less
than full insurance value, with deductible less than 10% Total
Insurable Value, and Business Income/Rent Loss at minimum,
of 12 month rents.
Wind: Must be included peril. If excluded, a separate wind/hail policy
must be provided at the same limits as the property or builders
risk with 12 months rents. If located in a Tier 1 county, Named
Storm coverage must be provided
Ordinance and Law: Must be obtained when the Property represents a non-
conforming use under current building, zoning or land use laws
or ordinances. The amount is to cover any losses to the
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undamaged portion of the building at replacement cost, 10% of
the demolition cost and the increased cost of construction.
Terrorism: Terrorism coverage is not required unless deemed by the special
limited partner to be in a high risk area. To be determined during
the underwriting process.
Worker’s Compensation and Employer’s Liability*
If the Partnership has employee(s), provide evidence of Workers Compensation as applicable
by law.
Certificate Holder: ILP and/or SLP
Worker’s
Compensation:
State Statutory Requirement applies
Automobile-Hired and Non-Owned (Owned if Partnership owns any vehicles)
Liability: Per accident Combined Single Limit (CSL) $1,000,000
General Contractor
Commercial General Liability
Additional Insured: ILP and SLP
Form: ISO, Occurrence Form (please supplyCertificate of Insurance on an
ACORD form 25)
Minimum Limits: Aggregate Limit $2,000,000
Products / completed operations aggregate $1,000,000
Personal & Advertising Injury $1,000,000
Each Occurrence $1,000,000
Fire Damage $50,000
Medical Expense $5,000
Note: aggregate limits must be written on a “per project” basis
Deductible No greater than $10,000
Umbrella Liability
Additional Insured: ILP and SLP
Minimum Limits: 1-10 stories $5,000,000
11-20 stories $10,000,000
21 or more $25,000,000
Note: umbrella to be written on a following
form
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Deductible/SIR: $10,000
Worker’s Compensation, Employer’s Liability, and Automobile Liability
Certificate Holder: ILP and/or SLP
Worker’s
Compensation:
State Statutory Requirement applies
Automobile Liability: Per accident Combined Single Limit (CSL) $1,000,000
Architect
Professional (Errors & Omissions) Liability – including contractual liability coverage
Certificate Holder: ILP and/or SLP
Minimum Limit: 10% of construction cost with a maximum requirement of
1,000,000 (please supply Certificate of Insurance on an ACORD
Form 25)
Property Management Company
Note: Coverage required for both construction (if occupied rehab) and permanent phases. If
new construction or unoccupied rehab, certificates will be required for review purposes to ensure
proper coverage at the time the management is on site..
Worker’s Compensation, Employer’s Liability, Automobile Liability and Fidelity Bond
Certificate Holder: ILP and/or SLP
Worker’s
Compensation:
State Statutory Requirement applies
Fidelity Bond 3 months of projects gross rental receipts; Fidelity Bond coverage
must be in full effect at time of occupancy. Coverage to be held by
the General Partner or the Management Agent
Automobile Liability: Per accident Combined Single Limit (CSL) $1,000,000
Permanent Phase Coverage
Partnership
Property Insurance
Named Insured: Partnership
Loss Payee: ILP and SLP
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Form: ISO Special Form (please supply Evidence of Property Insurance,
ACORD form 28 “Special” or “All Risk” form); Copies of Policies
to follow within 90 day of acceptance
Limits: Building (Real Property: 100% of Insurable Value (Replacement
Cost)
Contents (Personal
Property):
Replacement Cost Coverage
Business Interruption: 12 months gross rental income with
extra expense. This is to include
tenant’s gross rents as well as any
subsidies
Valuation: Replacement Cost
Deductible: $10,000 for 1-100 units/$25,000 for 101 or more units per
occurrence
If located in Tier 1 Wind County - wind deductible not to exceed
5%. All other locations, wind/hail deductible not to exceed $10,000
for 1-100 units/$25,000 for 101 or more units.
Extensions: Vacancy/Un-occupancy up to 60 days
Ordinance and Law if legal non-conforming
Waiver of Coinsurance/Agreed Amount Endorsement
Commercial General Liability
Named Insured: Partnership
Additional Insured: ILP and SLP
Form: ISO, Occurrence Form (please supply Certificate of Insurance on
an ACORD form 25)
Minimum Limits: Aggregate Limit $2,000,000
Products / completed operations aggregate $1,000,000
Personal & Advertising Injury $1,000,000
Each Occurrence $1,000,000
Fire Damage $50,000
Medical Expense $5,000
Note: aggregate limits must be written on a “per location” basis.
per policy” if a stand alone policy.
Deductible: No greater than $10,000
Worker’s Compensation and Employer’s Liability*
If the Partnership has employee(s), provide evidence of Workers Compensation as applicable
by law.
Certificate Holder: ILP and/or SLP
Worker’s
Compensation:
State Statutory Requirement applies
Automobile-Hired and Non-Owned (Owned if Partnership owns any vehicles)
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Liability: Per accident Combined Single Limit (CSL) $1,000,000
Umbrella Liability
Named Insured: Partnership
Additional Insured: ILP and SLP
Minimum Limits: 1-10 stories $5,000,000
11-20 stories $10,000,000
21 or more $25,000,000
Note: umbrella to be written on a following
form
Boiler and Machinery (if property has centralized equipment, boilers or elevators)
Named Insured: Partnership
Loss Payee/Additional
Interest:
ILP and SLP
Form: Comprehensive Form
Limit: Limit equal to the replacement value of the covered equipment
Valuation: Repair and/or Replacement
Extensions: Loss of Rents with Mechanical Breakdown Endorsement
Additional Coverages, if applicable
Flood: Required if buildings are located within a 100-year flood plain
FEMA Flood Zone “A” or “V” – or any sub-designation of
Zone “A” or “V”).
Policies must be obtained through the National Flood Insurance
Plan (NFIP) in the amount equal to the lesser of the full
insurable value or $250,000 ($500,000 if 5 or more units) per
building with a deductible not to exceed $5,000 per building.
An excess Flood or Difference in Conditions (DIC) policy
should provide for the difference, if any, between the maximum
limit provided by NFIP policies and the full insurable value.
Flood policies must be in full effect for both the construction
and permanent phases.
Earthquake: If located in Seismic Zones 3 or 4, a Seismic Report must be
completed to determine Scenario Expected Loss (SEL)
If the SEL is shown to have an expected seismic damage ratio
of less than 20%, earthquake coverage is not required.
If earthquake coverage is required, it must be in full effect for
both construction and permanent phases in the amount not less
than full insurance value, with deductible less than 10% Total
Insurable Value, and Business Income/Rent Loss at minimum,
of 12 month rents.
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Additional Coverages, if applicable
Wind: Must be included peril. If excluded, a separate wind/hail policy
must be provided at the same limits as the property or builders
risk with 12 months rents. If located in a Tier 1 county, Named
Storm coverage must be provided
Ordinance and Law: Must be obtained when the Property represents a non-
conforming use under current building, zoning or land use laws
or ordinances. The amount is to cover any losses to the
undamaged portion of the building at replacement cost, 10% of
replacement cost for the demolition cost and the increased cost
of construction.
Terrorism: Terrorism coverage is not required unless deemed by the special
limited partner to be in a high risk area. To be determined during
the underwriting process.
Worker’s
Compensation:
Only required if partnership has employees. State Statutory
requirements apply
Pollution Liability Required if the property is deemed to have environmental issues
prior to closing or at any time during the compliance period.
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EXHIBIT E
SUBSTANTIAL COMPLETION CERTIFICATE
The undersigned, an architect duly licensed and registered in the State of Colorado has
reviewed final working plans, detailed specifications (including, without limitation, for heating,
ventilation and cooling systems, roof and structural details, and mechanical and electrical systems),
and soil tests for ACI Affordable 1 LLLP (the “Partnership”), dated and identified as set forth in
Schedule 1 attached hereto. This certification is provided in connection with that certain First
Amended and Restated Agreement of Limited Partnership (the “Partnership Agreement”) between
the City of Aspen, Colorado, a municipal corporation of the State of Colorado, Aspen/Pitkin
County Housing Authority, a Colorado body corporate and politic, Boston Capital Rocky
Mountain Affordable Housing Fund, A Limited Partnership, a Massachusetts limited partnership,
and BCCC, Inc., a Massachusetts corporation, in connection with the rehabilitation of
improvements on certain real property located in Aspen, Colorado, such improvement or project
being known as “Aspen Country Inn” (the “Improvements”).
The undersigned hereby represents and warrants that (i) it has approved the aforesaid plans
and specifications, (ii) to the best of its knowledge, information and belief, with due inquiry, based
upon periodic inspection of the Improvements during construction, and a final inspection after
completion of the Improvements, the Improvements have been completed in material conformance
with the aforesaid plans and specifications, (iii) a temporary certificate of occupancy and all other
permits required for the continued use and occupancy of the Improvements have been issued with
respect thereto by the governmental agencies having jurisdiction thereof, (iv) in its professional
opinion, the Improvements have been designed in compliance with all laws, regulations, codes,
requirements and restrictions of all governmental authorities having jurisdiction in effect as of the
date on the plans and specifications, including, without limitation, all applicable zoning, building,
environmental, fire, health ordinances, rules and regulations, including any accessibility
requirements found in the Americans with Disabilities Act (42 U.S.C. § 12101 et seq., as
amended), the Rehabilitation Act of 1973 (20 U.S.C. § 794 et seq., as amended) and the Fair
Housing Act (42 U.S.C. § 3601 et seq., as amended), and (v) it has signed the final draw request
AIA Form __________) for the improvements and amounts in dispute are listed on Schedule 2
attached hereto.
NAME OF ARCHITECT]
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
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TABLE OF CONTENTS
ARTICLE I DEFINED TERMS ......................................................................................................1
ARTICLE II NAME AND BUSINESS .........................................................................................24
2.1 Name; Continuation .......................................................................................................24
2.2 Office and Registered Agent ..........................................................................................24
2.3 Purpose ...........................................................................................................................24
2.4 Term and Dissolution .....................................................................................................24
2.5 Nature of Partnership Interests ......................................................................................25
ARTICLE III MORTGAGE, REFINANCING AND DISPOSITION OF PROPERTY ..............26
3.1 Personal Liability ...........................................................................................................26
3.2 Refinancings; Permanent Loan Documents ...................................................................26
3.3 Sale of Assets .................................................................................................................26
3.4 Real Estate Commissions ...............................................................................................27
3.5 Sale of the Apartment Complex .....................................................................................27
3.6 Investor Provisions ........................................................ Error! Bookmark not defined.
ARTICLE IV PARTNERS; CAPITAL .........................................................................................30
4.1 Capital and Capital Accounts ........................................................................................30
4.2 General Partner ..............................................................................................................31
4.3 Class B Limited Partner ................................................. Error! Bookmark not defined.
4.4 Limited Partners .............................................................................................................31
4.5 Liability of the Limited Partners ....................................................................................32
4.6 Special Rights of the Special Limited Partner ...............................................................32
4.7 Meetings .........................................................................................................................33
ARTICLE V CAPITAL CONTRIBUTIONS OF THE INVESTMENT LIMITED
PARTNER AND THE SPECIAL LIMITED PARTNER .................................................36
5.1 Payments ........................................................................................................................36
5.2 Return of Capital Contributions .....................................................................................40
ARTICLE VI RIGHTS, POWERS AND DUTIES OF GENERAL PARTNER ..........................44
6.1 Authorized Acts .............................................................................................................44
6.2 Restrictions on Authority ...............................................................................................45
6.3 Personal Services; Other Business Ventures .................................................................48
6.4 Business Management and Control ...............................................................................48
6.5 Duties and Obligations ...................................................................................................49
6.6 Representations and Warranties .....................................................................................53
6.7 Liability on Mortgages ...................................................................................................57
6.8 Indemnification of the General Partner .........................................................................57
6.9 Indemnification of the Partnership and the Limited Partners ........................................58
6.10 Operating Deficits ..........................................................................................................59
6.11 Obligation to Complete the Construction of the Apartment Complex ..........................60
6.12 Certain Payments to the General Partner and Others ....................................................60
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6.13 Delegation of General Partner Authority .......................................................................61
6.14 Assignment to Partnership .............................................................................................62
6.15 Contracts with Affiliates ................................................................................................62
6.16 Tax Matters Partner .......................................................................................................63
6.17 Single Purpose Entity ..................................................... Error! Bookmark not defined.
ARTICLE VII WITHDRAWAL OF A GENERAL PARTNER; NEW GENERAL
PARTNERS .......................................................................................................................65
7.1 Voluntary Withdrawal ...................................................................................................65
7.2 Reconstitution ................................................................................................................65
7.3 Successor General Partner .............................................................................................65
7.4 Interest of Predecessor General Partner .........................................................................66
7.5 Amendment of Certificate; Approval of Certain Events ...............................................67
7.6 Valuation and Sale of Interest of Former General Partner ............................................67
7.7 Designation of New General Partners ...........................................................................68
ARTICLE VIII TRANSFERABILITY OF A LIMITED PARTNER’S PARTNERSHIP
INTERESTS ......................................................................................................................69
8.1 Assignments ...................................................................................................................69
8.2 Substituted Limited Partner ...........................................................................................69
8.3 Restrictions ....................................................................................................................70
ARTICLE IX BORROWINGS......................................................................................................71
ARTICLE X PROFITS, LOSSES, TAX CREDITS, DISTRIBUTIONS AND CAPITAL
ACCOUNTS ......................................................................................................................72
10.1 Profits, Losses and Tax Credits .....................................................................................72
10.2 Cash Distributions Prior to Dissolution .........................................................................73
10.3 Distributions Upon Dissolution .....................................................................................74
10.4 Special Provisions ..........................................................................................................75
10.5 Authority of the General Partner to Vary Allocations to Preserve and Protect the
Partners’ Intent ...............................................................................................................80
10.6 Recapture Amount .........................................................................................................81
ARTICLE XI MANAGEMENT AGENT .....................................................................................82
11.1 General ...........................................................................................................................82
11.2 Fees ................................................................................................................................82
11.3 Removal and Replacement ............................................................................................83
11.4 Lack of Management Agent ..........................................................................................83
ARTICLE XII BOOKS AND RECORDS, ACCOUNTING, TAX ELECTIONS, ETC. ............84
12.1 Books and Records ........................................................................................................84
12.2 Bank Accounts ...............................................................................................................84
12.3 Auditors .........................................................................................................................84
12.4 Cost Recovery and Elections .........................................................................................85
12.5 Special Basis Adjustments .............................................................................................85
12.6 Fiscal Year .....................................................................................................................85
12.7 Information to Partners ..................................................................................................85
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12.8 Expenses of the Partnership. ..........................................................................................89
12.9 Review of Compliance. ..................................................................................................89
12.10 Inspections. ....................................................................................................................90
ARTICLE XIII GENERAL PROVISIONS...................................................................................91
13.1 Restrictions by Reason of Section 708 of the Code .......................................................91
13.2 Amendments to Certificates ...........................................................................................91
13.3 Notices ...........................................................................................................................91
13.4 Word Meanings ..............................................................................................................92
13.5 Binding Effect ................................................................................................................92
13.6 Applicable Law ..............................................................................................................92
13.7 Counterparts ...................................................................................................................92
13.8 Financing Regulations ...................................................................................................92
13.9 Separability of Provisions ..............................................................................................93
13.10 Paragraph Titles .............................................................................................................93
13.11 Amendment Procedure ..................................................................................................93
13.12 Extraordinary Limited Partner Expenses .......................................................................93
13.13 Time of Admission ........................................................................................................94
13.14 Tax Shelter Provisions ...................................................................................................94
ARTICLE XIV CITY PROVISIONS ............................................................................................94
14.1 Limitations on Obligations of the City ..........................................................................94
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#47414282_v5
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT made as of September 1, 2016 by and between
ACI AFFORDABLE 1 LLLP, a Colorado limited liability limited partnership (the
“Partnership”), and CITY OF ASPEN, COLORADO, a municipal corporation of the State of
Colorado (the “Developer”).
Recitals
WHEREAS, the Partnership was formed to acquire, construct, develop, improve,
maintain, own, operate, lease, dispose of and otherwise deal with an apartment project located in
Aspen, Colorado, known as “Aspen Country Inn Apartments” (the “Apartment Complex”).
WHEREAS, capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the First Amended and Restated Agreement of Limited Partnership of the
Partnership of even date herewith (the “Partnership Agreement”).
WHEREAS, the Apartment Complex, following the completion of rehabilitation, is
expected to constitute a “qualified low-income housing project” (as defined in Section 42(g)(1)
of the Code).
WHEREAS, the Developer has already provided and, pursuant to the terms hereof, will
continue to provide certain services with respect to the Apartment Complex during the
acquisition, development, rehabilitation and initial operating phases thereof.
WHEREAS, in consideration for such services, past and future, the Partnership has
agreed to pay to the Developer certain fees computed and paid in the manner stated herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth
herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
Section 1. Defined Terms.
“Construction Costs” means any and all costs and expenses necessary to (i) cause the
rehabilitation of the Apartment Complex to be completed, in a good and workmanlike manner,
free and clear of all mechanics’, materialmen’s or similar liens, in accordance with the Plans and
Specifications, (ii) equip the Apartment Complex with all necessary and appropriate fixtures,
equipment and articles of personal property (including, without limitation, refrigerators and
ranges), (iii) obtain all required certificates of occupancy for the apartment units and other space
in the Apartment Complex, (iv) pay the Development Fee (other than the amount evidenced by
any Deferred Development Fee Note), (v) finance the rehabilitation of the Apartment Complex
and achieve the Completion Date in accordance with the provisions of the Project Documents,
(vi) discharge all Partnership liabilities and obligations arising out of any casualty generating
insurance proceeds for the Partnership prior to the Completion Date, (vii) fund any Partnership
reserves required hereunder or under any of the Project Documents, (viii) repay and discharge
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the construction-phase of the Bond Loan and (ix) pay any other costs or expenses necessary to
achieve the Completion Date.
“Designated Construction Proceeds” means (i) the proceeds of all Mortgage Loans, (ii)
the net rental income, if any, generated by the Apartment Complex prior to the Completion Date
which is permitted by the Lenders to be applied to the payment of Construction Costs, (iii) the
Capital Contributions of the Investment Limited Partner and the Special Limited Partner, (iv) the
Capital Contributions of the General Partner and the Administrative Limited Partner in the
amounts set forth in Schedule A of the Partnership Agreement as of the Admission Date and (v)
any insurance proceeds arising out of casualties occurring prior to the Completion Date.
“Development Advances” has the meaning set forth in Section 2.
Section 2. Obligation to Complete Rehabilitation and to Pay Construction Costs.
The Developer shall complete the rehabilitation of the Apartment Complex or cause the
same to be completed in a good and workmanlike manner, free and clear of all mechanics’,
materialmen’s or similar liens and shall equip the Apartment Complex or cause the same to be
equipped with all necessary and appropriate fixtures, equipment and articles of personal
property, including without limitation, refrigerators and ranges, provided for in the Project
Documents and the Plans and Specifications. The Developer also shall cause the achievement of
the Completion Date in accordance with the terms of the Partnership Agreement. If the
Designated Construction Proceeds as available from time to time are insufficient to pay all
Construction Costs and achieve the Completion Date, the Developer shall advance or cause to be
advanced to the Partnership from time to time as needed all such funds as are required to pay
such deficiencies. Any such advances (“Development Advances”) shall, to the extent permitted
under the Project Documents and any applicable Regulations or requirements of any Lender or
Agency (or otherwise with any Requisite Approvals), be reimbursed at or prior to the payment of
the Investment Limited Partner’s final Capital Contribution only out of Designated Construction
Proceeds available from time to time after payment of all Construction Costs. Any balance of
the amount of each Development Advance not reimbursed at the time of the payment of the
Investment Limited Partner’s final Capital Contribution shall not be reimbursable, shall not be
credited to the Capital Account of any Partner, or otherwise change the interest of any Person in
the Partnership, but shall be borne by the Developer under the terms of this Agreement.
Section 3. Development Services.
(a) The Developer has heretofore performed certain services relating to the
development of the Apartment Complex and shall continue to oversee the rehabilitation and
development of the Apartment Complex, and shall perform the services and carry out the
responsibilities with respect to the Apartment Complex as are set forth herein, and such
additional duties and responsibilities as are reasonably within the general scope of such services
and responsibilities and are designated from time to time by the General Partner.
(b) The Developer’s services shall be performed in the name and on behalf of the
Partnership and shall consist of the duties set forth in subparagraphs (i)-(xii) below of this
Section 3(b) and as provided elsewhere in this Agreement; provided, however, that if the
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performance of any duty of the Developer set forth in this Agreement is beyond the reasonable
control of the Developer, the Developer shall nonetheless be obligated to (i) use its best efforts to
perform such duty and (ii) promptly notify the General Partner that the performance of such duty
is beyond its reasonable control. The Developer has performed or shall perform the following:
(i) Negotiate and cause to be executed in the name and on behalf of the
Partnership, or in the name of the Developer subject to assignment to the Partnership, any
agreements for architectural, engineering, testing or consulting services for the Apartment
Complex, and any agreements for the rehabilitation of any improvements or tenant
improvements to be constructed or installed by the Partnership or the furnishing of any
supplies, materials, machinery or equipment therefor, or any amendments thereof,
provided that no agreement shall be executed nor binding commitment made until the
terms and conditions thereof and the party with whom the agreement is to be made have
been approved by the General Partner unless the terms, conditions, and parties comply
with guidelines issued by the General Partner concerning such agreements;
(ii) Establish and implement appropriate administrative and financial controls
for the design and rehabilitation of the Apartment Complex, including but not limited to:
(A) coordination and administration of the Apartment Complex
architect, the general contractor, and other contractors, professionals and
consultants employed in connection with the design or rehabilitation of the
Apartment Complex;
(B) administration of any construction contracts on behalf of the
Partnership;
(C) participation in conferences and the rendering of such advice and
assistance as will aid in developing economical, efficient and desirable design and
rehabilitation procedures;
(D) the rendering of advice and recommendations as to the selection of
subcontractors and suppliers;
(E) the review and submission to the General Partner for approval of
all requests for payments under any architectural agreement, general contractor’s
agreement, or any loan agreements with any lending institutions providing funds
for the benefit of the Partnership for the design or rehabilitation of any
improvements;
(F) the submission of any suggestions or requests for changes which
could in any reasonable manner improve the design, efficiency or cost of the
Apartment Complex;
(G) applying for and maintaining in full force and effect any and all
governmental permits and approvals required for the lawful rehabilitation of the
Apartment Complex;
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(H) compliance with all terms and conditions applicable to the
Partnership or the Apartment Complex contained in any governmental permit or
approval required or obtained for the lawful rehabilitation of the Apartment
Complex, or in any insurance policy affecting or covering the Apartment
Complex, or in any surety bond obtained in connection with the Apartment
Complex;
(I) furnishing such consultation and advice relating to the Apartment
Complex as may be reasonably requested from time to time by the General
Partner;
(J) keeping the General Partner fully informed on a regular basis of
the progress of the design and rehabilitation of the Apartment Complex, including
the preparation of such reports as are provided for herein or as may reasonably be
requested by the General Partner and which are of a nature generally requested or
expected of construction managers or similar owner’s representatives on similar
projects;
(K) giving or making the Partnership’s instructions, requirements,
approvals and payments provided for in the agreements with the Apartment
Complex architect, general contractor, and other contractors, professionals and
consultants retained for the Apartment Complex; and
(L) at the Partnership’s expense, filing on behalf of and as the
attorney-in-fact for the Partnership any notices of completion required or
permitted to be filed upon the completion of any improvement(s) and taking such
actions as may be required to obtain any certificates of occupancy or equivalent
documents required to permit the occupancy of the Apartment Complex.
(iii) Inspect the progress of the course of the rehabilitation of the Apartment
Complex, including verification of the materials and labor being furnished to and on such
rehabilitation so as to be fully competent to approve or disapprove requests for payment
made by the Apartment Complex architect and the general contractor, or by any other
parties with respect to the design or rehabilitation of the Apartment Complex, and in
addition to verify that the rehabilitation is being carried out substantially in accordance
with the Plans and Specifications approved by the General Partner or, in the event that the
rehabilitation is not being so carried out, to promptly notify the General Partner;
(iv) If requested to do so by the General Partner, perform on behalf of the
Partnership all obligations of the Partnership with respect to the design or rehabilitation
of the Apartment Complex contained in any loan agreement or security agreement
entered into in connection with any construction or long-term financing for the
Apartment Complex, or in any lease or rental agreement relating to space in the
Apartment Complex, or in any agreement entered into with any governmental body or
agency relating to the terms and conditions of such rehabilitation, provided that copies of
such agreements have been provided by the Partnership to the Developer or the
Partnership has otherwise notified the Developer in writing of such obligations;
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(v) To the extent requested to do so by the General Partner, prepare and
distribute to the General Partner a critical path schedule, and periodic updates thereto as
necessary to reflect any material changes, but in any event not less frequently than
quarterly, other design or rehabilitation cost estimates as required by the General Partner,
and financial accounting reports, including monthly progress reports on the quality,
progress and cost of the rehabilitation and recommendations as to the drawing of funds
from any loans arranged by the Partnership to cover the cost of design and rehabilitation
of the Apartment Complex, or as to the providing of additional capital contributions
should such loan funds for any reason be unavailable or inadequate;
(vi) At the Partnership’s expense, obtain and maintain insurance coverage for
the Apartment Complex, the Partnership, and the Developer and its employees, at all
times until final completion of the rehabilitation of the Apartment Complex, in
accordance with an insurance schedule approved by the General Partner, which insurance
shall include general public liability insurance covering claims for personal injury,
including but not limited to bodily injury, or property damage, occurring in or upon the
Property or the streets, passageways, curbs and vaults adjoining the Property. Such
insurance shall be in a liability amount approved by the General Partner;
(vii) Comply with all applicable present and future laws, ordinances, orders,
rules, regulations and requirements (hereinafter in this subparagraph (vii) called “laws”)
of all federal, state and municipal governments, courts, departments, commissions,
boards and offices, any national or local Board of Fire Underwriters or Insurance
Services Offices having jurisdiction in the county in which the Apartment Complex is
located or any other body exercising functions similar to those of any of the foregoing,
or any insurance carriers providing any insurance coverage for the Partnership or the
Apartment Complex, which may be applicable to the Apartment Complex or any part
thereof. Any such compliance undertaken by the Developer on behalf of and in the name
of the Partnership, in accordance with the provisions of this Agreement, shall be at the
Partnership’s expense. The Developer shall likewise ensure that all agreements between
the Partnership and independent contractors performing work in connection with the
Apartment Complex shall include the agreement of said independent contractors to
comply with all such applicable laws;
(viii) Assemble and retain all contracts, agreements and other records and data
as may be necessary to carry out the Developer’s functions hereunder. Without limiting
the foregoing, the Developer will prepare, accumulate and furnish to the General Partner
and the appropriate governmental authorities, as necessary, data and information
sufficient to identify the market value of improvements in place as of each real property
tax lien date, and will make application for appropriate exclusions from the capital costs
of the Apartment Complex for purposes of real property ad valorem taxes;
(ix) Coordinate and administer the design and rehabilitation of all interior
tenant improvements to the extent required under any leases or other occupancy
agreements to be constructed or furnished by the Partnership with respect to the initial
leasing of space in the Apartment Complex, whether involving building standard or
non-building standard work;
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(x) Use its best efforts to accomplish the timely completion of the Apartment
Complex in accordance with the approved Plans and Specifications and the time
schedules for such completion approved by the General Partner;
(xi) At the direction of the General Partner, implement any decisions of the
General Partner made in connection with the design, rehabilitation and development of
the Apartment Complex or any policies and procedures relating thereto, exclusive of
leasing activities; and
(xii) Perform and administer any and all other services and responsibilities of
the Developer which are set forth in any other provisions of this Agreement, or which are
requested to be performed by the General Partner and are within the general scope of the
services described herein.
Section 4. Limitations and Restrictions.
Notwithstanding any provisions of this Agreement, the Developer shall not take any
action, expend any sum, make any decision, give any consent, approval or authorization, or incur
any obligation with respect to any of the following matters unless and until the same has been
approved by the General Partner:
(a) Approval of all construction and architectural contracts and all architectural plans,
specifications and drawings prior to the rehabilitation and/or alteration of any improvements
contemplated thereby, except for such matters as may be expressly delegated in writing to the
Developer by the General Partner;
(b) Any proposed change in the work of the rehabilitation of the Apartment Complex,
or in the Plans and Specifications therefor as previously approved by the General Partner, or in
the cost thereof, or any other change which would affect the design, cost, value or quality of the
Apartment Complex, except for such matters as may be expressly delegated in writing to the
Developer by the General Partners;
(c) Making any expenditure or incurring any obligation by or on behalf of the
Partnership or the Apartment Complex involving a sum in excess of $25,000 or involving a sum
of more than $5,000 where the same relates to a component part of any work, the combined cost
of which exceeds $25,000, except for expenditures made and obligations incurred pursuant to
and specifically set forth in a construction budget approved by the General Partner (the
“Construction Budget”) or for such matters as may be otherwise expressly delegated to the
Developer by the General Partner;
(d) Making any expenditure or incurring any obligation which, when added to any
other expenditure, exceeds the Construction Budget or any line item specified in the
Construction Budget, except for such matters as may be otherwise expressly delegated in writing
to the Developer by the General Partner; or
(e) Expending more than what the Developer in good faith believes to be the fair and
reasonable market value at the time and place of contracting for any goods purchased or leased
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or services engaged on behalf of the Partnership or otherwise in connection with the Apartment
Complex.
Section 5. Accounts and Records.
(a) The Developer on behalf of the Partnership, shall keep such books of account and
other records as may be required and approved by the General Partner, including, but not limited
to, records relating to the costs of rehabilitation and rehabilitation advances. The Developer shall
keep vouchers, statements, receipted bills and invoices and all other records, in the form
approved by the General Partner, covering all collections, if any, disbursements and other data in
connection with the Apartment Complex prior to the Completion Date. All accounts and records
relating to the Apartment Complex, including all correspondence, shall be surrendered to the
Partnership, upon demand without charge therefor.
(b) All books and records prepared or maintained by the Developer shall be kept and
maintained at all times at the place or places approved by the General Partner, and shall be
available for and subject to audit, inspection and copying by the Management Agent, the General
Partner or any representative or auditor thereof or supervisory or regulatory authority, at the
times and in the manner set forth in the Partnership Agreement.
Section 6. Development Fees.
(a) For its services in connection with the development of the Apartment Complex
and the supervision of the construction of the Apartment Complex, and as reimbursement for
Development Advances, the Developer shall receive a fee (the “Development Fee”) in the
amount of $1,835,518. The remainder of the Development Fee shall be deemed to have been
earned as and when the Developer’s services are rendered and such Development Fee shall be
paid out of Designated Construction Proceeds, provided, however, (i) not more than [$409,675]
of the Development Fee shall be paid prior to the payment of the First Installment, (ii) an
additional amount of not more than [$204,838] of the Development Fee shall be paid prior to the
payment of the Second Installment, (iii) an additional amount of not more than [$204,838] of the
Development Fee shall be paid prior to the payment of the Third Installment, (iv) an additional
amount of not more than [$539,113] of the Development Fee shall be paid prior to the payment
of the Fourth Installment, and (v) an additional amount of not more than [$280,238] of the
Development Fee shall be paid prior to the payment of the Fifth Installment. In any event, the
General Partner shall cause the Partnership to pay such Development Fee only after the payment
of all Development Costs (other than the Development Fee). If Designated Construction
Proceeds are insufficient to pay the Development Fee, subject to the limitations set forth in
Section 6.12(a) of the Partnership Agreement, such unpaid amounts shall be evidenced by a
promissory note (the “Deferred Development Fee Note”) and such note shall be paid out of Cash
Flow and/or Capital Proceeds of the Partnership pursuant to the terms thereof. The parties
hereto, upon the Consent of the Special Limited Partner, shall (i) calculate the amount of the
Deferred Development Fee Note at such time as it may be determined what the unpaid amount of
the Development Fee will be after the application of all Designated Construction Proceeds, but in
any event such calculation shall be completed prior to the payment of the final Installment of the
Investment Limited Partner’s Capital Contributions to the Partnership and (ii) execute such
Deferred Development Fee Note in the form attached hereto as Exhibit A and promptly deliver a
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copy thereof to the Investment Limited Partner. The unpaid balance of the Deferred
Development Fee Note shall bear no interest. If the Deferred Development Fee Note has not
been fully paid by the thirteenth (13th) anniversary of the Completion Date, the General Partner
shall make a Capital Contribution to the Partnership in an amount sufficient to enable the
Partnership to pay any unpaid portion of the Deferred Development Fee Note.
(b) Notwithstanding anything to the contrary set forth herein, the Developer agrees
that in the event that at any time the Auditors determine that less than 50% of the aggregate basis
of the Apartment Complex has been or will be financed by the proceeds of the Bonds, the
Development Fee and any other fee payable by the Partnership to the Developer or its principals
or Affiliates shall be reduced to the extent necessary to eliminate such condition. The parties
hereto acknowledge that a reduction of the Development Fee shall be the first, but not the
exclusive, action taken to cure the condition described in this Section 6(b).
(c) In the event that the Investment Limited Partner shall give notice to the General
Partner that in the reasonable judgment of the Investment Limited Partner depreciation
deductions project to no longer be allocated to the Investment Limited Partner as a result of the
treatment of the outstanding balance of the Deferred Development Fee Note as either Partner
Nonrecourse Debt or a recourse obligation of the Partnership, as applicable, the Developer
agrees that the General Partner may take all such action as may be necessary to assure that the
outstanding balance of the Deferred Development Fee Note shall constitute a “partnership
nonrecourse liability” of the Partnership as such term is defined in Treasury Regulation Section
1.752-1(a)(2) or any successor regulation. One such action may be the assignment of the
outstanding balance of the Deferred Development Fee Note to an Entity which is not a Related
Person to the General Partner. The Developer agrees that, if requested to do so by the General
Partner under the foregoing circumstances, it will assign any outstanding balance of the Deferred
Development Fee Note to an Entity which is not a Related Person to the General Partner.
Section 7. Applicable Law.
This Agreement, and the application or interpretation hereof, shall be governed by and
construed in accordance with the laws of the State of Colorado.
Section 8. Binding Agreement.
This Agreement shall be binding on the parties hereto, their heirs, executors, personal
representatives, successors and assigns. As long as the Developer is not in default under this
Agreement, the obligation of the Partnership to pay the Development Fee shall not be affected by
any change in the identity of the General Partner of the Partnership.
Section 9. Headings.
All section headings in this Agreement are for convenience of reference only and are not
intended to qualify the meaning of any section.
Section 10. Terminology.
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All personal pronouns used in this Agreement, whether used in the masculine, feminine
or neuter gender, shall include all other genders, the singular shall include the plural, and vice
versa as the context may require.
Section 11. Benefit of Agreement.
The obligations and undertakings of the Developer set forth in this Agreement are made
for the benefit of the Partnership and its Partners and shall not inure to the benefit of any creditor
of the Partnership other than a Partner, notwithstanding any pledge or assignment by the
Partnership of this Agreement or any rights hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the date first written above.
PARTNERSHIP: ACI AFFORDABLE 1 LLLP, a Colorado limited
liability limited partnership, by its general partner,
City of Aspen, Colorado, a Colorado municipal
corporation
By:
Name:
Title:
DEVELOPER: ASPEN/PITKIN COUNTY HOUSING
AUTHORITY, a Colorado body corporate and
politic
By:
Name:
Title:
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EXHIBIT A
DEFERRED DEVELOPMENT FEE NOTE
$___________________
_______________, 20__
FOR VALUE RECEIVED, ACI AFFORDABLE 1 LLLP, a Colorado limited liability
limited partnership (the “Partnership”) promises to pay the order of CITY OF ASPEN,
COLORADO, a municipal corporation of the State of Colorado (the “Developer”) the principal
sum of _____________________________________ AND ______/100 DOLLARS
($______________), on or before the earlier to occur of the thirteenth (13th) anniversary of the
Completion Date or the date of liquidation of the Partnership (the “Maturity Date”), in
accordance with that certain Development Agreement by and between the Partnership and the
Developer dated as of September 1, 2016 (the “Development Agreement”).
This note evidences the obligation of the Partnership to pay the Developer a deferred
Development Fee pursuant to the Development Agreement. The balance of this note shall be
paid from Cash Flow or Capital Proceeds in accordance with the provisions of Sections 10.2(a)
and 10.2(b) of the First Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of September 1, 2016, as may be amended from time to time (as amended,
the “Partnership Agreement”), the provisions of which are specifically incorporated herein by
this reference. Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Partnership Agreement.
The outstanding principal balance of this note, together with all accrued interest thereon,
shall unconditionally be due and payable on the Maturity Date.
If payment of the balance of this note is not paid on the Maturity Date, and such default
continues for a period of ten (10) days after written notice from the Developer to the Partnership,
then interest on the unpaid principal amount of this note shall be computed at a rate per annum
equal to two percent (2%) over the prevailing prime rate from time to time in effect as published
in the Wall Street Journal in its Money Rates section and changing simultaneously with each
published change in such published prime rate, which rate shall commence upon the expiration
of such ten (10) day period and shall continue in effect until all past due principal and interest
has been paid.
The Partnership may, at its election, but only with the Consent of the Special Limited
Partner, from time to time prior to maturity, prepay without penalty all or any portion of the
principal indebtedness of this note.
Demand for payment shall be presumed to have been issued and the entire unpaid
principal sum of this note, together with accrued interest thereon, if any, shall become
immediately due in the event of the occurrence of any one or more of the following: default in
the payment of any installment due hereunder continuing for a period in excess of ten (10) days
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after written notice from the Developer to the Partnership; the filing by the Partnership of a
voluntary petition in bankruptcy; or the failure by the Partnership within ninety (90) days thereof
to lift any filing against the Partnership of any involuntary petition, execution, or attachment; or
the adjudication of the Partnership as bankrupt; or any assignment by the Partnership of all or
substantially all of its assets for the benefit of its creditors; or the invalidity or illegality of any
portion of this note by reason of any act or omission by the Partnership.
Except as may be specifically required under the provisions of Section 6 of the
Development Agreement, this note shall not be assigned, hypothecated, pledged, sold, or
otherwise transferred without the prior written consent of the Partnership and its Special Limited
Partner, and any such other transfer without such consent shall be null and void.
The payment of this note shall be a recourse obligation of the Partnership.
This note shall be governed by and construed in accordance with the internal laws of the
State of Colorado.
IN WITNESS WHEREOF, the Partnership has executed this note as of the date first
written above.
PARTNERSHIP: ACI AFFORDABLE 1 LLLP, a Colorado
limited liability limited partnership, by its
general partner, City of Aspen, Colorado, a
Colorado municipal corporation
By: ______________________________
Name:
Title:
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INCENTIVE MANAGEMENT AGREEMENT
INCENTIVE MANAGEMENT AGREEMENT dated as of September 1, 2016, between
ACI AFFORDABLE 1 LLLP, a Colorado limited liability limited partnership (the
“Partnership”), and CITY OF ASPEN, COLORADO, a municipal corporation of the State of
Colorado (the “Supervisory Management Agent”).
Preliminary Statement
A. The Partnership, pursuant to its First Amended and Restated Agreement of
Limited Partnership dated as of September 1, 2016 (the “Partnership Agreement”), is engaged in
the ownership and operation of an apartment complex located in Aspen, Colorado (the
“Apartment Complex”).
B. ASPEN/PITKIN COUNTY HOUSING AUTHORITY, a Colorado body
corporate and politic (the “Management Agent”), has been retained to be the manager for the
Apartment Complex pursuant to the Management Agreement (the “Management Agreement”).
C. The Supervisory Management Agent also is being retained to perform certain
additional supervisory management and other services, and the Partnership has agreed to pay the
Supervisory Management Agent a certain fee, all as hereinafter provided.
D. Capitalized terms used and not otherwise defined herein shall have the respective
meanings set forth in the Partnership Agreement.
Accordingly, the parties hereto agree as follows.
1. Services and Duties of Supervisory Management Agent. The Supervisory
Management Agent shall provide consultative and supervisory services to the Partnership and the
Apartment Complex. Such services are intended to enable the Partnership better to be able to
achieve its purposes and shall include, without limitation, the preparation of (i) an annual pro
forma operating budget for each fiscal year within sixty (60) days after the beginning of each
calendar year, (ii) an estimate of the profits and losses and tax credits of the Partnership for
federal income tax purposes for each fiscal year not later than September 30 of such year and
(iii) a balance sheet as of the end of each fiscal year of the Partnership and a statement of
income, retained earnings and changes in financial position for such year. Further, the
Supervisory Management Agent will monitor the activities of the Partnership and the
Management Agent so as to enable the Partnership to comply with all Code requirements for the
low-income housing tax credit to establish eligibility for such credit with respect to the
Apartment Complex and avoid recapture thereof during the compliance period established under
the Code.
2. Incentive Management Fee. In consideration of its services, the Partnership shall
pay to the Supervisory Management Agent an annual, non-cumulative fee (the “Incentive
Management Fee”). The Incentive Management Fee shall be an annual amount equal to twelve
percent (12%) of the Cash Flow available for distribution after giving effect to Clause Ninth of
Section 10.2(a) of the Partnership Agreement, but in no event more than 12% of the gross
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receipts generated by the Apartment Complex in such year. No portion of the Incentive
Management Fee shall be earned or payable unless and until any outstanding amounts due to the
Investment Limited Partner pursuant to Sections 5.1(e) and (f) of the Partnership Agreement
shall have been paid to the Investment Limited Partner.
3. Additional Services. In addition to the services described in Section 1 hereof, the
Supervisory Management Agent shall assist the Partnership and Management Agent in planning,
supervising and developing a marketing program for the Apartment Complex, including, without
limitation, the following:
(i) assisting in (x) the supervision of such professional copywriters,
sign painting companies, artists and agencies as may be required to develop
advertising programs, brochures, grand opening campaigns or daily newspaper
advertisements, and (y) the selection and supervision of such decorating services
as may be required to furnish model apartment units, furnish recreation areas or
develop rental displays;
(ii) furnishing such assistance as may be required to develop a market
analysis through field inspections of competitive projects or surveys of property
managers and owners, and assisting in developing a rental schedule;
(iii) assisting the Partnership in developing systems for processing
applications, credit checks, occupancy schedules and such other procedures as
may be required to assure an orderly occupancy of the Apartment Complex;
(iv) assisting the Partnership in coordinating efforts to achieve a
desirable tenant selection through recruitment and screening of tenants before and
during occupancy and assisting in helping tenants organize themselves for social
programs;
(v) performing the reporting and accounting services (other than those
to be performed by the Auditors referred to in the Partnership Agreement)
contemplated by Section 12.7 of the Partnership Agreement;
(vi) maintaining Partnership bank accounts and safekeeping all funds
and assets of the Partnership;
(vii) consulting with and coordinating the activities of attorneys,
accountants and other professionals for the benefit of the Partnership and the
Apartment Complex;
(viii) developing and maintaining favorable community relations
between the Partnership and various social and community organizations; and
(ix) maintaining effective communications with all governmental
bodies having jurisdiction over the Apartment Complex.
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4. Termination of Supervisory Management Agent. Notwithstanding anything
contained in this Agreement to the contrary, in the event that the Supervisory Management
Agent shall default in any material respect in any of its obligations hereunder and such default
shall continue for fifteen (15) days, then the General Partner shall forthwith give to the
Investment Limited Partner notice of such event, and if such default has not been cured within
thirty (30) days of the receipt by the Investment Limited Partner of notice thereof, the
Partnership shall, subject to all Requisite Approvals, forthwith terminate this Agreement, unless
the Consent of the Investment Limited Partner is obtained to the retention of the Supervisory
Management Agent hereunder. In addition, this Agreement shall automatically terminate upon
the removal of a General Partner for cause or the Withdrawal of a General Partner under the
terms of the Partnership Agreement unless, in either case, the Consent of the Investment Limited
Partner is obtained to the retention of the Supervisory Management Agent.
5. Reporting Obligation Damages. If the General Partner shall be obligated to pay
damages to the Investment Limited Partner under Section 12.7(l) of the Partnership Agreement,
the Supervisory Management Agent shall forthwith cease to be entitled to the Incentive
Management Fee. Payments of the Incentive Management Fee shall only be restored upon the
payment of such damages in full, and any amount of such damages not so paid shall be deducted
against payments of the Incentive Management Fee otherwise due and payable.
6. Term of Agreement. The term of this Agreement shall commence on and as of
the date hereof and shall continue in full force and effect until termination of the Partnership.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
PARTNERSHIP:
ACI AFFORDABLE 1 LLLP, a Colorado
limited liability limited partnership, by its
general partner, City of Aspen, Colorado, a
Colorado municipal corporation
By: ______________________________
______________, _______________
SUPERVISORY MANAGEMENT AGENT:
CITY OF ASPEN, COLORADO, a Colorado
municipal corporation
By: ______________________________
______________, _______________
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MEMORANDUM
TO: Mayor and City Council
FROM: Jack Wheeler, Capital Asset Manager
Jeff Pendarvis, Capital Asset Project Manager
Thru: Jack Wheeler, Capital Asset Manager
DATE OF MEMO: August 31, 2016
MEETING DATE: September 6, 2016
RE: Intergovernmental Agreement for APD with Pitkin County
REQUEST OF COUNCIL: Staff requests Approval of Resolution #131 for an
Intergovernmental Agreement between the City of Aspen and Pitkin County to serve as
an operating agreement and facilitate cost sharing for items related to the construction of
the new Aspen Police Department and Pitkin County Sherriff’s Office Facilities.
PREVIOUS COUNCIL ACTION: Staff requested City Council select one of the
options to move forward into final design.
Direction received:
1. Police programing of 14,900 sf at the 540 Main St. Site was approved to move to
detailed design by a unanimous vote 5-0
Council agreed with the recommended action below with the vote outlined above and has
asked that the project move to the construction phase as soon as possible.
RECOMMENDED ACTION: This recommendation includes the decision to have the
Police facility as outlined at 540 Main to allow collaboration and efficiencies with the
County public safety facility at the adjoining location. The police facility will move to its
own track for completion of design and construction.
BACKGROUND: The decision was made to construct a new facility for the Aspen
Police Department at 540 E. Main St. Relocation of infrastructure and upgrading the
water main are required as part of this project and this phase of the project is currently
underway. This Intergovernmental Agreement will help streamline this process and
ensure that the APD and Sherriff’s facilities are built in a manner that streamlines
security and logistical concerns between the two law enforcement agencies.
REQUESTED COUNCIL ACTION:
Staff requests direction for approval of the Intergovernmental Agreement between the
City of Aspen and Pitkin County.
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CITY MANAGER COMMENTS:
ATTACHMENTS: Exhibit A Intergovernmental Agreement
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INTERGOVERNMENTAL AGREEMENT FOR THE
CONSTRUCTION OF THE PITKIN COUNTY SHERIFF AND
ADMINISTRATION FACILITY AND THE CITY OF ASPEN
POLICE DEPARTMENT FACILITY
THIS INTERGOVERNMENTAL AGREEMENT (the “Agreement”) is made this ______day of
_______________, 2016 by the COUNTY OF PITKIN, STATE OF COLORADO, by and through
its Board of County Commissioners, whose address is 530 East Main Street, Aspen, Colorado,
81611 (“Pitkin”) and the City of Aspen. Colorado (“City”) by and through its Council, whose
address is 130 South Galena St., Aspen, Colorado, 81611, collectively the (“Parties”).
NOW, THEREFORE, in consideration of the mutual promises and agreements of the parties and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. This Agreement is entered into pursuant to, inter alia, C.R.S. § 29-1-201, et seq., and Article
XIV, Section 18 of the Colorado Constitution.
2. Term. The term of this Agreement is perpetual unless otherwise canceled, pursuant to
paragraph 11 below.
3. City and County Obligations. See Exhibit “A”
4. Assignability. This agreement is not assignable by either party.
5. Modification. This Agreement may be changed or modified only in writing by an agreement
approved by the respective governing bodies of the Governments and signed by authorized
officers of each party, however Exhibit A of this agreement may be modified by the
signatures of that Exhibit. This Agreement constitutes the entire Agreement between the
parties and all other promises and agreements relating to the subject of this Agreement,
whether oral or written, are merged herein and/or attached hereto.
6. Severability. Should any one or more sections or provisions of this Agreement be judicially
adjudged invalid or unenforceable, such judgment shall not affect, impair, or invalidate the
remaining provisions of this Agreement, the intention being that the various sections and
provisions hereof are severable.
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7. Notice. Any notice required or permitted under this Agreement shall be in writing and shall
be hand-delivered or sent by registered or certified regular mail, postage pre-paid to the
addresses of the parties as follows. Each party by notice sent under this paragraph may
change the address to which future notices should be sent. Electronic delivery of notices
shall also be deemed sufficient and considered delivered upon receipt of confirmation of
delivery on the part of the sender.
To: Pitkin County With copies to:
Jodi Smith
Facilities Supervisor Pitkin County Attorney’s Office
Address: 485 Rio Grande Place, 530 E. Main Street, #302
#101, Aspen, CO 81611 Aspen, Colorado 81611
FAX: FAX:
E-mail: jodi.smith@pitkincounty.com E-mail: john.ely@pitkincounty.com
Other Party: With copies to:
Jack Wheeler James R. True, County Attorney
Capital Asset Manager 130 South Galena St, 2nd 130 S Galena
Aspen, Colorado 81611 Aspen, CO 81611
FAX: 970.920.5081 FAX: 970.920.5081
Email:jack.wheeler@cityof aspen.com E-mail: jim.true@cityofaspen.com
8. Government Immunity. The parties agree and understand that both parties are relying on and
do not waive, by any provisions of this Agreement, the monetary limitations or terms or any
other rights, immunities, and protections provided by the Colorado Governmental Immunity
Act, C.R.S. 24-10-101, et seq., as from time to time amended or otherwise available to the
parties or any of their officers, agents, or employees. (If applicable)
9. Binding Rights and Obligations. The rights and obligations of the parties under this
Agreement shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns.
10. Agreement made in Colorado. This Agreement shall be construed according to the laws of
the State of Colorado, and venue for any action shall be in the District Court in and for Pitkin
County, Colorado. Each party to this Agreement shall have standing to bring an action to
enforce the terms of this Agreement in District Court, including an action for specific
performance and injunctive relief.
11. Termination: This agreement may only be terminated by an action of both governing boards.
12. Attorney’s Fees: In the event that legal action is necessary to enforce any of the provisions
of this agreement and Exhibit A attached hereto, the substantially prevailing party, whether
by final judgment or out of court settlement, shall recover from the other party all costs and
expenses of such action of suit including reasonable attorney’s fees.
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The foregoing Agreement is approved by the Board of County Commissioners of Pitkin County,
Colorado at its regular meeting held on the _____ day of _____________, 2016.
The Foregoing Agreement is approved by the Aspen City Council at its special meeting held on the
_______ day of __________, 2016.
Signatures on the following page:
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In witness whereof the parties hereto have caused this agreement to be executed as of the day and
year first written.
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY:
ATTEST: BOARD OF COUNTY COMMISSIONERS
____________________________ _________________________________
Jeannette Jones Rachel E. Richards, Chair
Deputy County Clerk
Date: ________________
APPROVED AS TO FORM: MANAGER APPROVAL
__________________________ __________________________________
John Ely, County Attorney Jon Peacock, County Manager
ATTEST: ASPEN CITY COUNCIL
____________________________ __________________________________
Linda Manning, City Clerk Steven Skadron, Mayor
Date: _______________
APPROVED AS TO FORM MANAGER APPROVAL
____________________________ __________________________________
James R. True, City Attorney Steven Barwick, City Manager
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RESOLUTION #131
(Series of 2016)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING AN INTERGOVERNMENTAL AGREEMENT FOR THE CONSTRUCTION
OF THE PITKIN COUNTY SHERIFF AND ADMINISTRATION FACILITY AND THE CITY
OF ASPEN POLICE DEPARTMENT FACILITY AUTHORIZING THE CITY MANAGER
TO EXECUTE SAID INTERGOVERNMENTAL AGREEMENT ON BEHALF OF THE CITY
OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council An Intergovernmental
Agreement – between the City of Aspen and Pitkin County, 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 the Intergovernmental
Agreement between the City of Aspen and Pitkin County that will serve as the operating
agreement and facilitate cost sharing for items related to the construction of the new Aspen
Police Department and Pitkin County Sherriff’s Office Facilities, 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 6th day of September, 2016.
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 on the 6th day of September, 2016.
Linda Manning, City Clerk
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MEMORANDUM
TO: Mayor and City Council
FROM : Justin Forman, P.E., Senior Project Manager, City of Aspen
Matt Kuhn, Parks Operations Manager, City of Aspen
THRU: Trish Aragon, P.E., City Engineer, City of Aspen
Tom Rubel, Director of Parks and Open Space, City of Aspen
DATE OF MEMO: September 2nd, 2016
MEETING DATE: September 6th, 2016
RE: Bicycle & Pedestrian Master Plan Update
SUMMARY: City staff seeks input and to provide an update to Council regarding the proposed
Bicycle & Pedestrian Master Plan project. The goals for the work session include the following:
Highlight phase 1 summary.
Introduce phase 2 of the master plan.
o Bicycle boulevards
o Converting street right-of-way (ROW) to trails
o Moving east/west through the downtown core
o General wayfinding
o Bicycle lane striping
o Sidewalks
BACKGROUND: The City of Aspen has a long history of working bicycle and pedestrian
plans, some dating back to the 1970’s. These plans have defined everything from the aesthetic of
our sidewalks to the trail system that exists throughout the community already. The last
comprehensive Bicycle and Pedestrian plan for the City was completed in 1991.
In 2014 and 2015, staff worked with Alta Planning and Design to create the first phase of a new
Bicycle & Pedestrian Master Plan. Alta, along with staff, assembled an existing conditions map
and undertook a comprehensive public survey process to identify priorities and needs within the
community. This information was distilled down to a final map and set of recommendations for
proposed improvements to the bicycle and pedestrian infrastructure. Alta also reviewed
documents such as the Aspen Area Community Plan, Aging Well in Pitkin County and City of
Aspen Civic Master Plan to help ensure these proposed improvements were in line with the
community vision. Phase I of the plan can be found in Attachment A.
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DISCUSSION:
In early 2016 staff reached out to key internal departments to solicit feedback on the Phase I
recommendations. Staff created the website, www.aspenbikeped.com, as a way to provide the
plan to the community and collect feedback on Phase I of the plan. This site will remain as a
community informational hub moving into Phase II.
Staff further held a public outreach event at Conner Memorial Park and staffed a booth at the
farmer’s market to allow for feedback and discussion on Phase I recommendations.
Phase I contains a comprehensive list of potential projects. The cost and time associated with
implementing the entire list could be prohibitively high, therefore staff reviewed the list
thoroughly and recommends that Phase II proceed with a narrower focus with emphasis on six
key elements/projects. Staff believes it is important to check in with Council to ensure that the
projects that are included in the Phase II scope of work fall in line with Council’s vision of
bicycle and pedestrian projects for the next 10-20 years.
Bicycle Boulevards:
Bicycle boulevards are designed to discourage non-local motor vehicle traffic, lower
motor-vehicle volumes and speeds, and provide a free-flow travel for bikes by assigning
right-of-way. The City of Aspen currently has this treatment on West Hopkins Avenue.
The Phase I planning process proposes five new bicycle boulevards. Staff propose to
include an analysis/design of future Bicycle Boulevards in the scope of work for Phase II
of the plan. The goal would be to work with the community to determine what aesthetic
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any new bicycle boulevards would have. The Phase II plan will also provide direction to
staff regarding an expedited implementation of a new bicycle boulevard on Hallam Street
from 7th to either South Aspen Street or Mill Street, and other instances throughout the
city.
Converting Street Right-of-Way to Incorporate Trails:
An excellent example of converting traditional street right-of-way to accommodate a trail
would be Cemetery Lane.
There are approximately 14 new trails throughout town recommended in Phase I, with
most of these occurring within existing street right of way. Staff recognize that many of
these are significant shifts from the status quo and are not high priorities at this time.
With Council approval, staff would like to include a concept analysis in the Phase II
scope of work to analyze a trail on 4th Street from Main Street to the Music Tent. Staff
have heard through public outreach that moving bicycles and pedestrians through this
corridor more safely is a priority. The study would solicit community guidance in design
and provide an overall feasibility study, estimated cost, and conceptual design.
Concept Study for Downtown Feasibility East to West Corridor:
Although Phase I shows various treatments to be applied within the downtown core, staff
believes a larger concept study should be looked at in order to answer the question: How
do bicycles and pedestrians safely move through the downtown core in an east-west
direction? This topic has been discussed at the City’s Pedestrian and Bicycle Safety
Team level, and after meeting with the City departments and hearing from the community
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in 2016, staff would like to include this question in the scope of work for Phase II of the
plan. Community process and expert design will provide a project design that may
implemented holistically or incrementally.
General Wayfinding:
The parks department has provided trail signage throughout the trail system for decades,
however this signage system degrades once you are in town. The highest priority in the
needs assessment map in Phase I was for the City to have better wayfinding within town.
Providing visitors and residents a comprehensive wayfinding system throughout town for
bicycle routes, trails, parks, and civic institutions is paramount. Due to the complexity of
this project, staff propose that this is an independent project in-lieu of including in Phase
II.
Bicycle Lane Striping: (Protected/Advisory/Lane):
Bike lane striping are pavement markings in the roadway that give the bicyclist an
assigned travel path. The City has applied bike lanes in numerous places throughout town
such as Mill Street, S. Original Street, and South Aspen Street.
Phase II of the plan will solidify and provide direction to further the on-street bicycle
infrastructure. Staff recommends that bicycle lane striping is expanded, as it provides a
low-cost and effective improvement for cyclists in the roadway.
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Sidewalks: Community driven prioritization.
An integral part of the pedestrian and bike connectivity plan is the City’s network of
sidewalks. While there are several areas in town where pedestrians travel on the roadway
surface, this poses challenges to those who need accessible access including but not
limited to visually impaired, children, mobility impaired, and others. The City’s plan for
a connected sidewalk network is included in the Phase I of the Bicycle and Pedestrian
Plan. This network recognizes the City’s desire to incorporate sidewalk free zones in the
West End while still recognizing how important it is to have an accessible network in key
areas.
As part of Phase II staff is recommending a prioritization of completing the top 5
sidewalk gaps in the City’s network. This prioritization process would include a public
process, and incorporate known high priority gaps.
One potential gap includes the connection along Spruce Street. This is a critical sidewalk
link because it connects the Smuggler Park area to the Centennial Apartments and the
Lani White Trail. This is also the connection route for residents of the Centennial
Apartments to the bus stop located at Smuggler Park.
FINANCIAL IMPLICATIONS: At this time, there are no financial decisions that need to be
made. With Council approval on the above mentioned Discussion items, staff will put together a
full scope of work that will frame a request for proposal. Staff expects to return to Council in
late October for the approval of the consultant contract.
CITY MANAGER COMMENTS:
Attachment A – Phase I Bicycle & Pedestrian Master Plan
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AspenRec Center
Aspen High School
Music Tent
and Harris Hall
Aspen
InsƟtute
Aspen Center forEnvironmental Studies
Pitkin CountyLibrary
and Plaza
Aspen ArtMuseum
CityMarketAspenMountain
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WheelerOpera House
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Aspen Highlands
Ruby Park Transit Center
Red Brick
Rec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
AspenIce Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen HighlandsBase Area
Aspen - PitkinCounty Airport
Aspen Business Center
Hall
To Sky Mountain Park
Marolt Museum
Aspen Golf Clubhouse
and Nordic Center
Bike ToolStaƟon
Bike Tool
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Red BuƩe
Moore Open Space
Burlingame Ranch/Deer Hill
Red BuƩe
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Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust ExempƟon
Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
LiƩle Cloud
Thomas Estate
Twin Ridge
LiƩle Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside Park
Annie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt
Red BuƩe Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold BuƩe Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring F
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Fork
R
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Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballelds
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
LiŌ One A Park
Aspen Alps Park
Wheeler Park
Park
Armstrong (Crash Point)Rio
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82
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Gondola Plaza
Aspen ArtMuseum
Clark’s Market
Aspen Ice Garden
Red Bridge RecreaƟon
and Arts Center
Wheeler/StallardHouse Museum
Barbee
Marolt Ranch
Rubey Lot 6/ Williams Woods
LiƩle Cloud
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Center Lode Mining Claim
Holy Cross Electric
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Silver Circle
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Triangle Park
Fox Crossing Park
Pioneer Park
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Armstrong (Crash Point)
82
Existing ConditionsExisting Conditions MapDecember, 2014Downtown Aspen
B
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HYMAN AVE
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EE HOE HOPE HOPHOPEEEEEEN 4TH STTHN 5TH STTHS MILL STS MILL STMILL STS MILL STN 6TH STTHW BLEE
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and Arts Center
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5000 1000250 2000 Feet
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3000 600150 1200
Scale: 1” = 500 Feet
Scale: 1” = 300 Feet
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Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Bicycle Facilities
Bike Lane
Sharrow
Paved Trail
Bike and Ped Way
Unpaved Trail
Sidewalks
Advisory Pedestrian Lane
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
U
B
Existing ConditionsExisting Conditions MapP197V.
Aspen Bicycle and Pedestrian Master Plan
The Takeaway:
Results and ndings from the Aspen survey and online community input: 49 surveys and 187 location specic comments
Residents walk and bicycle for a variety of reasons from transportation to recreation and exercise, and voice concerns centered around
perceived safety and convenience issues.
Biking and walking are important to those who live, work and play in Aspen. They use facilties for recreation as well as to commute or for fun.
With improved signage and better connectivity, people woud be more willing to get out and walk or bike to their destinations.
say Improving Conditions is
VERY IMPORTANT
Why We Walk and Bike (or Don’t)
Which of the following are the most appealing aspects of biking to you?
VeryNot
Top
What are the top three obstacles or concerns
that prevent you from walking more frequently?
Top
What are the top three obstacles or concerns that may prevent you from biking?
More
What do you think are the most important benefits and uses of a trail system?
Less
What type of bicyclist are you?What is your gender identity?Respondent age:
We heard from approximately 236 residents, business owners, students, and visitors, with 49 survey respondents. Respondents covered
a wide range in age with roughly 75% of respondents residing in, 85% working in and 71% recreating in Aspen.
Who We Heard From
10-19
2.2%
20-29
15.2%
30-39
28.3%
40-49
15.2%
50-59
23.9%
60-69
15.2%
Other
4.7%
Female
59.6%
Male
38.3%
Enthused and
Condent
36.2%
Strong and
Fearless 44.7%
Interested but
Concerned
19.1%
Health and fitness
Money saved on fuel
More time outdoors
Faster commute
Easier to find convenient parking
Fewer traffic jams
Reducing the amount of time spent in a car
Pleasure
Less impact on the environment
Quality time spent with children/grandchildren
Beautiful scenery
Connected network
The bike lanes/trails don't go where I need to travel
I have too much to carry
Street crossings feel unsafe
I get too sweaty
Drivers are too aggressive
I don't know how to bike
I don't have access to a bike
I can't bike for other reasons
I do ride frequently; no concerns here!
Lack of interest in biking
The distance to my destination is too far
The roads/trails do not feel safe
Not enough bike parking/storage at my desinations
I don't know the best routes for biking
There isn't enough space to bring my bike on transit
There is often too much debris in the bike lane
I do walk frequently; no concerns here!
Lack of interest in walking
Lack of people/friends to walk with
The distance to destinations is too far to walk
The roads and sidewalks do not feel safe
The trails/greenways do not feel safe
The hills are too strenuous
I don't know the best walking routes
There isn't enough shade
The sidewalks are not well-maintained
There are no sidewalks or paths
Community-building and events
Connectivity between local areas
Environmental improvements
Education and outreach
Exercise
Recreation
Tourism and place making
Transportation alternative Existing ConditionsSurvey Results1 of 4This graphic summarizes feedback received from the public meeting and the online wiki maps tool.P198V.
The Takeaway:Bicyclists and pedestrians in Aspen primarily want to walk and ride on facilities that are separated from trac. say Improving Conditions is VERY IMPORTANT What Could be Better?0510152025 Directional andwayfinding signagefor bicyclistsBicycle Boulevard(share, low-speedstreets)Striped bike lanesBuffered bike lanesCycle tracks (bikelanes that arephysically separatedby curb or parking)Intersectionimprovements forbicyclistsOff-street pathsBetter bicyclenetwork to transit(e.g. parking)What is the likelihood that the following types of bicycling facilities would influence you to bike more often? Very unlikelyUnlikelyLikelyVery likely 02468101214161820 Wayfindingsignage forpedestriansMore sidewalksWider sidewalksSidewalksseparated fromtraffic by parkedcarsRoadway crossingimprovements forpedestriansOff-street pathsBetter pedestrianaccess to transitSidewalk networkthat connectswhere I want to goSecurity featuresand good lightingVery unlikelyUnlikelyLikelyVery likelyHow likely is it that the following improvements would encourage you to walk more?
How do you rate the overall
bicycling experience
in Aspen?
Over all people feel that the bicycling and pedestrian experiences in Aspen are good but that they can be improved. We also know
that the trail system in Aspen is an important part of both the recreation and commuter networks.
Poor
4%
Good
56%
Fair
21%
Excellent
19%
How do you rate the overall
pedestrian experience
in Aspen?
Poor
2%
Good
52%
Fair
23%
Excellent
23%
How often do you use the
trail system now
in Aspen?
Not Currently
but Thought About It
2%
Few Times
per Week
69%
Few Times
per Year
16%
Few Times
per Month
13%
8th StreetHwy 82 + 8thGarmishAspen RdMain St.Hopkins MeadowsCastle Creek Bridge MillCastle Creek RdDurantUteParkHallam3rdGalena7thBleeker6thSpringCity MarketRed Mountain Rd Cooper 4thHymanCastle Creek BridgeCrossingMain St.Hwy 82 OriginalHopkins8th St MillMaroon Creek RdSpringDurantAspenHallamCooperMonarchGalenaGarmishUteBicycling:Walking:Where Could it be Better?When surveyed, people said that they would like to see roadway corridor improvements in the following locations for bicycling and walking (the larger the word or phrase, the more often it was seen in survey responses):
Improved facilities at locations that are key to the bicycle and pedestrian networks would inuence more people to walk and rid e. Existing ConditionsSurvey Results2 of 4This graphic summarizes feedback received from the public meeting and the online wiki maps tool.P199V.
Aspen Bicycle and Pedestrian Master Plan
The Takeaway:
Results and ndings from the Aspen survey and online community input: 49 surveys and 187 location specic comments
Residents walk and bicycle for a variety of reasons from transportation to recreation and exercise, and voice concerns centered around
perceived safety and convenience issues.
Biking and walking are important to those who live, work and play in Aspen. They use facilties for recreation as well as to commute or for fun.
With improved signage and better connectivity, people woud be more willing to get out and walk or bike to their destinations.
say Improving Conditions is VERY IMPORTANT
Why We Walk and Bike (or Don’t)
Which of the following are the most appealing aspects of biking to you?
VeryNot
Top
What are the top three obstacles or concerns
that prevent you from walking more frequently?
Top
What are the top three obstacles or concerns that may prevent you from biking?
More
What do you think are the most important benefits and uses of a trail system?
Less
What type of bicyclist are you?What is your gender identity?Respondent age:We heard from approximately 236 residents, business owners, students, and visitors, with 49 survey respondents. Respondents covered a wide range in age with roughly 75% of respondents residing in, 85% working in and 71% recreating in Aspen.Who We Heard From 10-192.2%20-2915.2%30-3928.3%
40-49
15.2%
50-5923.9%60-6915.2%Other4.7%Female59.6%Male38.3%Enthused and Condent36.2%Strong and Fearless 44.7%Interested but Concerned 19.1%
Health and fitness
Money saved on fuel
More time outdoors
Faster commute
Easier to find convenient parking
Fewer traffic jams
Reducing the amount of time spent in a car
Pleasure
Less impact on the environment
Quality time spent with children/grandchildren
Beautiful scenery
Connected network
The bike lanes/trails don't go where I need to travel
I have too much to carry
Street crossings feel unsafe
I get too sweaty
Drivers are too aggressive
I don't know how to bike
I don't have access to a bike
I can't bike for other reasons
I do ride frequently; no concerns here!
Lack of interest in biking
The distance to my destination is too far
The roads/trails do not feel safe
Not enough bike parking/storage at my desinations
I don't know the best routes for biking
There isn't enough space to bring my bike on transit
There is often too much debris in the bike lane
I do walk frequently; no concerns here!
Lack of interest in walking
Lack of people/friends to walk with
The distance to destinations is too far to walk
The roads and sidewalks do not feel safe
The trails/greenways do not feel safe
The hills are too strenuous
I don't know the best walking routes
There isn't enough shade
The sidewalks are not well-maintained
There are no sidewalks or paths
Community-building and events
Connectivity between local areas
Environmental improvements
Education and outreach
Exercise
Recreation
Tourism and place making
Transportation alternative
Existing ConditionsSurvey Results3 of 4This graphic summarizes feedback received from the public meeting and the online wiki maps tool.P200V.
The Takeaway:
Bicyclists and pedestrians in Aspen primarily want to walk and ride on facilities that are separated from trac.
say Improving Conditions is
VERY IMPORTANT
What Could be Better?
0
5
10
15
20
25
Directional andwayfinding signagefor bicyclistsBicycle Boulevard(share, low-speedstreets)Striped bike lanesBuffered bike lanesCycle tracks (bikelanes that arephysically separatedby curb or parking)Intersectionimprovements forbicyclistsOff-street pathsBetter bicyclenetwork to transit(e.g. parking)What is the likelihood that the following types of bicycling facilities
would influence you to bike more often?
Very unlikelyUnlikelyLikelyVery likely
0
2
4
6
8
10
12
14
16
18
20
Wayfindingsignage forpedestriansMore sidewalksWider sidewalksSidewalksseparated fromtraffic by parkedcarsRoadway crossingimprovements forpedestriansOff-street pathsBetter pedestrianaccess to transitSidewalk networkthat connectswhere I want to goSecurity featuresand good lightingVery unlikelyUnlikelyLikelyVery likely
How likely is it that the following improvements would encourage you to walk more?
How do you rate the overall
bicycling experience
in Aspen?
Over all people feel that the bicycling and pedestrian experiences in Aspen are good but that they can be improved. We also know
that the trail system in Aspen is an important part of both the recreation and commuter networks.
Poor
4%
Good
56%
Fair
21%
Excellent
19%
How do you rate the overall
pedestrian experience
in Aspen?
Poor
2%
Good
52%
Fair
23%
Excellent
23%
How often do you use the
trail system now
in Aspen?
Not Currently
but Thought About It
2%
Few Times
per Week
69%
Few Times
per Year
16%
Few Times
per Month
13%
8th Street
Hwy 82 + 8thGarmish
Aspen RdMain St.
Hopkins
Meadows
Castle Creek Bridge Mill
Castle Creek RdDurant
Ute
Park
Hallam
3rd
Galena
7th
Bleeker
6th
Spring
City MarketRed Mountain Rd
Cooper
4th
Hyman
Castle Creek Bridge
CrossingMain St.
Hwy 82
Original
Hopkins
8th St MillMaroon Creek Rd
Spring DurantAspen
Hallam
Cooper
Monarch
GalenaGarmish
Ute
Bicycling:Walking:
Where Could it be Better?
When surveyed, people said that they would like to see roadway corridor improvements in the following locations for bicycling and
walking (the larger the word or phrase, the more often it was seen in survey responses):
Improved facilities at locations that are key to the bicycle and pedestrian networks would inuence more people to walk and rid e. Existing ConditionsSurvey Results4 of 4This graphic summarizes feedback received from the public meeting and the online wiki maps tool.P201V.
Existing ConditionsNeeds Assessment MapThis map summarizes feedback received from the public meeting and the online wiki maps tool. Points on the map represent existing gaps in the network as well as desired routes that would increase connectivity.B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
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B
B
B
B
B
B
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AspenRec Center
Aspen High School
Music Tentand
Harris Hall
AspenInsƟtute
Aspen Center for
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Pitkin CountyLibrary and Plaza
Aspen Art
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AspenMountainGondola Plaza
Wheeler
Opera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park
Transit Center
Red BrickRec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen HighlandsBase Area
Aspen - PitkinCounty Airport
Aspen Business Center
Aspen City Hall
To Sky Mountain Park
Marolt Museum
Aspen Golf Clubhouseand Nordic Center
Bike ToolStaƟon
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Red BuƩe
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Burlingame Ranch/Deer Hill
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Hunter Valley Way
Ute Mesa
Ute Cemetery
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Aspen Highlands Village
Center Lode Mining Claim
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LiƩle Cloud
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Twin Ridge
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Millionaire Millsite
Jenny Adair Park
Stein Riverside Park
Annie Mitchell Open Space
Mill Street Parcel
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Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
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Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballelds
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
LiŌ One A Park
Aspen Alps Park
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Existing ConditionsNeeds Assessment MapFebruary, 2015This map summarizes feedback recieved from the public meeting and the online wiki maps tool. Points on the map represent existing gaps in the network as well as desired routes that would increaase connectivity. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Bicycle Facilities
Bike Lane
Sharrow
Paved Trail
Unpaved Trail
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
U
B
Gap or Conflict Point
WeCycle Station Need
Bike Parking Need
Bike Network Area Gap
Corridor Need
NEEDS AND GAPS
LEGEND
We
Better signage or sight aids for entering and leaving the tunnel
Better signage or sight aids for transition to and from Harmony and Old Stage Trail
Dangerous crossing
Dangerous crossing
Dangerous crossing
Most cylists stay on the road due to bad/confusing trail signage
Plow bridge from High School to the Recreation Center for pedestrians in winter
Need official bicycle facility to Truscott
Limited line of sight out of tunnel
Limited line of sight due to spruce trees
Gap in sidewalk and bike route
Bike lane ends at this intersection and is dangerous for pedestrians and cyclists
Dangerous intersection for cyclists at free right turn, little awareness an d space for bicyclists
Provide pedestrian crossing island
Sprinkler system waters the bike path spring through fall
Cyclists and drivers don’t adhere to stop sign
Dangerous, blind intersection at crossing of Marolt Trail and Castle Creek Road
Dangerous intersection, difficult crossing for pedestrians with turning traffic
Vehicle and bicycle conflicts
Limited sight at intersection
Major crossing area with no crosswalk
Change parking on west side of Monarch to parallel to offer more space to through traffic
New sidewalk along west side of Wagner Park
Dangerous route for bikes; conflict with busses and views blocked by buses
Intersection is squeezed and dangerous
Bicycle facility through pedestrian mallDangerous corner
Streetlights in center of sidewalk; change so cars and pedestrians don’t have to navigate around
Dangerous intersection for bicycles and pedestrians
Gaps:
1
1
Bike path in disrepair, not suited for road bikes; continue path up Maroon Creek Rd
Lack of shoulder; provide safe route to Aspen Music School Campus
Bike trail is impassable for much of the winter
Unsafe stretch for bicyclists and pedestrians, very narrow, slippery and uncomfortable
Pack this trail for pedestrians in the winter
Dangerous route and lacks signage through town
Continute River Trail connection
Lacking bicycle facility on this dangerous and narrow uphill
Vehicules and parking make this a scary route
Steep and dangerous hill for cyclists with drivers and driveways; specifically driveway at bottom
Difficult connection from Rio Grande Trail to Hopkins Bike and Ped Way
High-speed, blind driveways, high traffic makes dangerous decent from Hunter Creek
Desired route but unsafe for bicyclists
Narrow roadway to trails; need bike facility
Improved pedestrian and bicycyling facilities along N 8th St. and Meadows Rd. - feels unsafe in icy winter months and walking feels unsafe when dividers are up in summer time
Corridors:
2
Dangerous intersection to cross for pedestrians
Dangerous intersection, cars still go through when it’s pedestrians’ turn
Unsafe intersection favors vehicle traffic; make pedestrian light more responsive
Unsafe intersection for bicyclists
Unsafe; needs 4-way stop
Visibility is limited for drivers approaching crosswalk, don’t know it’s there
Busy intersection; needs pedestrian crossing
Busy intersection; needs pedestrian crossing
Confusing intersection
Busy intersection needs crosswalk and more lighting
Provide improvements to accommodate safe pedestrian crossing
2
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P202V.
ColoredBike Lanes
Colored bike lanes are used in areas where
automobiles and bicycles cross paths and it
is not clear who has the right-of-way. Colored
bike lanes and accompanying signs assign
priority to the bicyclist. Studies showed that
motorists yield more often to cyclists once
colored lanes were installed.
Signs and Pavement Markings
Destination signs can be located around a
city’s bikeway network to tell cyclists how to
get to popular destinations, and how long it
will take at a certain pace. Pavement markings
can be used on bicycle boulevards, which are
low-traffi c bike routes without bike lanes.
Shared Lane Marking
Shared-lane markings or “sharrows” are
designed to inform motorists to expect
cyclists to be in the middle of the travel lane,
and to inform cyclists that they should be in
the travel lane and away from parked cars.
Studies have shown that shared-lane markings
improve both cyclist positioning and motorist
behavior.
Cycle Tracks
A cycle track is a bicycle facility that
combines a separated path with the
on-street infrastructure of a conventional bike
lane. They are intended primarily for cyclists
and are separated from vehicle travel lanes,
parking lanes, and sidewalks.
Bike Boxes
Bike boxes give cyclists priority on
bicycle streets by allowing them to go to the
head of the line at a red light. This also makes
it easier and safer for bicyclists to proceed
once the signal turns green.
On-Street Bike Parking
High-volume, on-street bicycle parking
removes an auto parking spot and fi lls it with
bike racks. These projects can be very popular
with bicyclists and merchants. In places with
narrow sidewalks and many bicyclists, it frees
up the sidewalk for pedestrians while also
accommodating parked bikes.
Innovative Bicycle Facilities Existing ConditionsInnovative Bicycle Facilities - 1 of 4P203V.
Bike Left-Turn Lanes
Bike left-turn lanes help bicyclists through a
dog-leg in the bike route. They are created by
removing vehicle parking spaces and
re-distributing that space to the center of the
street.
Buff ered Bike Lane
Bicycle lane with a buff er to increase the space
between the bicycle lanes and auto lane or
parked cars.
Bike-Only Signals
There are a variety of signal options
available for cyclists. One option allows the
user to press a signal actuator, so that auto
traffi c will stop to allow the cyclist to go. At
some locations, a bicycle-only signal tells the
cyclist when it is safe to cross.
Bike Share/Hire
Bicycle sharing is gaining momentum globally,
helping cities become greener, quieter
and healthier places to live. It is a unique
opportunity to convert non-bicyclists to
cycling, and to increase visibility of bicycles.
Funding for the initial capital outlay is the key
planning step. Options include public funds,
private sponsors and advertising.
Bike-Only Entry
Intersections and neighborhood streets
can be designed to allow only bicycles to
pass through the entry to the street. These
intersections are marked with “Do Not Enter
Except Bicycles” signs.
Automatic Counters
Utilized in places such as Copenhagen,
automatic counters provide a highly visible
display of the number of bicycles that have
passed a given point.
Innovative Bicycle Facilities
Innovative Bicycle Facilities
Existing ConditionsInnovative Bicycle Facilities - 2 of 4P204V.
Sidewalks
Good sidewalks are continuous, accessible
to everyone, provide adequate travel width
and feel safe. Sidewalks can provide social
spaces for people to interact and contribute
to quality of place.
Pedestrian Refuge Islands
Refuge islands allow pedestrians to cross
one segment of the street to a relatively
safe location out of the travel lanes, and
then continue across the next segment in a
separate gap in traffi c. A median refuge island
allows the pedestrian to tackle each direction
of traffi c separately.
ADA Curb Ramps
Curb ramps are a fundamental element of an
accessible public realm. A sidewalk without
a curb ramp can be useless to someone in a
wheelchair, forcing them back to a driveway
and out into the street for access. Truncated
domes provide a cue to visually-impaired
pedestrians that they are entering a street or
intersection.
Curb Extensions
Curb extensions reduce the crossing distance
for pedestrians. They allow pedestrians to
move safely beyond a lane of parked cars to
a position where they can see and be seen as
they begin their crossing. Curb extensions can
also provide an area for accessible transit stops
and other pedestrian amenities and street
furnishings.
Transit Stop Enhancements
Providing amenities at transit stops, such
as benches, trash receptacles, shelters, and
lighting can signifi cantly increase user comfort
and willingness to wait. Enhancing transit
stops may increase transit usage.
Enhanced Pedestrian Signals
Enhanced pedestrian signals include features
designed to make crossing easier, specifi cally
for people with a disability (e.g., audible
signals) or in areas where crossing is diffi cult
due to limited traffi c gaps or long block
lengths (e.g., pedestrian only signals at mid-
block crossings).
Innovative Pedestrian Facilities Existing ConditionsInnovative Bicycle Facilities - 3 of 4P205V.
Streetscape Improvements
Streetscape improvements are features
that enhance the pedestrian experience.
These include public art, pocket parks,
ornamental lighting, gateway features
and street furniture. Many of these im-
provements can easily integrate environ-
mentally-friendly “green” elements.
HAWK Signals
An emerging signal technique, HAWK signals
stop vehicle traffi c when activated by a
pedestrian or bicyclist (either by a push button
or in-pavement loop detector). This technique
is useful at trail/roadway crossings and other
intersections experiencing frequent pedestrian
crossing movements.
Grade Separated
Crossing
Grade separated crossings physically
separate the crossing of pedestrian
traffi c from motor vehicle fl ow. They may
eliminate vehicular-pedestrian confl icts but
are necessarily limited to selected locations
where the benefi ts clearly
balance the public investment.
Colored/Textured
Crosswalks
Colored or textured crosswalks heighten
driver awareness of pedestrian crossings by
providing an additional visual cue beyond
traditional crosswalk markings.
Driveway Consolidation
Consolidating driveways along a roadway reduces the number of confl ict points
between pedestrians on the sidewalk and vehicles entering or leaving driveways.
This strategy may also improve vehicle traffi c fl ow on the roadway.
Innovative Pedestrian Facilities Existing ConditionsInnovative Bicycle Facilities - 4 of 4P206V.
Existing ConditionsRecommended Bicycle Facilities MapThis map outlines facilities recommended to the City of Aspen. it is based on existing conditions and the Needs Assessment.B
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Aspen
Rec Center
Aspen High School
Music Tent
and
Harris Hall
AspenInstitute
Aspen Center for
Environmental Studies
Pitkin CountyLibrary and Plaza
Aspen ArtMuseum
AspenMountainGondola Plaza
Wheeler
Opera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park
Transit Center
Red BrickRec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen HighlandsBase Area
Aspen - PitkinCounty Airport
Aspen Business Center
Aspen City Hall
To Sky Mountain Park
Marolt Museum
Aspen Golf Clubhouse
and Nordic Center
Bike ToolStation
Bike Tool
Station
Red Butte
Moore Open Space
Burlingame Ranch/Deer Hill
Red Butte
Red Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside Park
Annie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt
Red Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring F
o
r
k
R
i
v
e
r
Roaring
Fork
R
iver
Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio
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ran
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ClimbingBike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CREEK
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Alignment
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Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’
EOP to EOP
travel lanes multi-use
path
10’34’
40’
EOP to EOP
shared travel lanes
A Section: Multi-use Path
Scale: N/A B Section: Bike Boulevard
Scale: N/A
A
A’
B
B’
Recommended Facility Aids
Rectangular Rapid Flash
Beacon (RRFB)
Wecycle Station
Underpass
Proposed Sidewalks
Recommeded Bicycle Facilities
Protected Bike Lane
Bike Lane
Advisory Bike Lane
Sharrow
Bike Boulevard
Multi-Use Paved Trail
Unpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
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P207V.
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B8282
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Aspen
Rec Center
Aspen High School
Music Tentand Harris HallAspenInstituteAspen Center forEnvironmental Studies
Pitkin County
Library
and Plaza
Aspen Art
Museum
Aspen
Mountain
Gondola Plaza
Wheeler
Opera House
Hotel
Jerome
Clark’s
Market
Aspen Highlands
Ruby Park
Transit Center
Red Brick
Rec and Arts Center
Aspen Grove Cemetery
Wheeler/Stallard
House Museum
Aspen Centerfor Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen Highlands
Base Area
Aspen - PitkinCounty AirportAspen Business Center
Aspen
City
Hall
To Sky Mountain Park
Marolt
Museum
Aspen Golf Clubhouseand Nordic CenterBike ToolStation
Bike Tool
Station
Red Butte
Moore Open Space
Burlingame Ranch/Deer HillRed ButteRed Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin ReserveMaroon Creek Wetlands Randall ParkDeer Hill/ Park Trust Exemption Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside ParkAnnie Mitchell Open Space
Mill Street Parcel
AABC GreenbeltRed Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing AreaAirport RanchSewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay ParcelRoaring Fork River
Roaring
Fork
R
iver
Roaring Fork RiverMaroon CreekCastle CreekAspen GolfZoline PropertyMaroon Creek Golf CourseMaroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson Park
Rio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa Park
Pioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio Grande Trail
Climbing
Bike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CREEK
RDUTE AVE
STAGE RD WILLOUGHBY WAY
MOORE D
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MIDLAND
P
A
R
K
P
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SHAVANO DRSUMM
I
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T
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CLUBSIDE DRHIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LNTOBY
L
NOREGON TRLALICE LNRIVER DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VISTA DRCLUB CIR
E FRANCIS ST
MTN LAUREL CTSALVATION CIRASPEN MEADOWS
S WILLOW CTWOOD DUCK LN
GROVE CTW NORT
H
S
T
DEAN S
T
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K
E
R
S
T
W NORTH STSTAGE RDHWY 82ALLEY
DEAN S
T
E COOP
E
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. Nordic
Alignment
U
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’EOP to EOPtravel lanesmulti-usepath10’34’40’EOP to EOPshared travel lanesASection: Multi-use Path Scale: N/A B Section: Bike Boulevard Scale: N/A
A
A’
B
B’Recommended Facility Aids Rectangular Rapid Flash Beacon (RRFB)Wecycle StationUnderpassProposed SidewalksRecommeded Bicycle FacilitiesProtected Bike LaneBike LaneAdvisory Bike LaneSharrowBike BoulevardMulti-Use Paved TrailUnpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
82
82
82
82
82
82
P
U
U
UU
U
U
U
AspenRec Center
Aspen High School
Music Tentand Harris Hall
AspenInstitute
Aspen Center forEnvironmental Studies
Pitkin CountyLibrary and Plaza
Aspen ArtMuseum
AspenMountainGondola Plaza
WheelerOpera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park Transit Center
Red BrickRec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
AspenIce Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen HighlandsBase Area
Aspen - PitkinCounty Airport
Aspen Business Center
Aspen City Hall
To Sky Mountain Park
Marolt Museum
Aspen Golf Clubhouseand Nordic Center
Bike ToolStation
Bike ToolStation
Red Butte
Moore Open Space
Burlingame Ranch/Deer Hill
Red Butte
Red Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside ParkAnnie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt Red Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring For
k
R
i
v
e
r
Roar
ing
Fo
rk
R
ive
r
Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio G
r
an
d
e
T
r
a
i
l
ClimbingBike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CRE
EK
RDUTE
A
V
E
STAGE RD
WILLOUGHBY WAY
MOORE DR
W MAIN
S
T
HYMAN
A
V
E
E MAIN S
T
ASPEN MTN R
D
E DURAN
T
A
V
EN 4TH STPFISTER
DR
GIBSON
A
V
EN 5TH STN 6TH STRED M
TN
RD
W BLEEK
E
R
S
T
MEADOWOOD DRRELAY RDS ASPEN STW FRAN
C
I
S
S
TN 7TH STW SMUG
G
L
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R
S
T
S 7TH
ST N MILL STE AIRPORT RDW HOPKI
N
S
A
V
E SPRUCE STN 2ND STHARMONY RDRED
B
U
T
T
E
D
R
N 1ST STDOOLITTLE
DRMEADOWS RDGLEN EAGLES DRSMUGGLER MTN RDPARK AVEN 8TH STPIT
K
I
N
W
A
Y
FALCON RD
SILVE
R
K
I
N
G
D
R
MTN
LAURE
L
DRLAKE AVEHIGHLAN
D
S
S
U
M
M
E
R
R
D MCSKIMMING
RDS ORIGINAL STFORGE RDMAROLT
PL
HEATHER LN SILVERLODE
DRPYRAMID RDE
LUP
INE
DRSNEAKY LNOAK LN
LONE
P
I
N
E
R
D
S HUNTER STPOWDERBOWL TRLS WEST END STMUSIC SCHOOL RDPAEPCKE DR
VINE ST
NEALE AVEN SPRING STUTE PL
GILLESPIE ST N 3RD
ST
HOM
E
S
T
A
K
E
D
R
SHADY LNMIDLAND AVE
EASTWOOD DR
STILLWATER LNKING
S
T
E BLEEK
E
R
S
T
THUNDERBOWL L
N MCLAIN
FLATS
RDEXHIBITION LNBONITA DR
MTN VIEW DR
GLEN DEE RDWESTVIEW DR
WATERS
A
V
EBUTTERMILK SUMMER RDMAPLE LNMAROON DRPASSGO LNW HALL
A
M
S
T
RACE STSKIMMING LN
TRU
S
C
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T
T
P
L
N GARMISCH STSNOWBUNNY LN
ROARING FORK DRARDMORE DRHALLAM
S
TSIERRA VISTA DRMINING STOCK PKWYN ASPEN STHIGH SC
H
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O
L
R
D
W LUPINE
DRCHATFIELD RDAJAX AVE
PROSP
E
C
T
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R
R
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OWL C
R
E
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K
R
D
NORTHWAY DRBOOME
R
A
N
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R
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S
LN
JUAN ST
STA
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C
T
RIVERSIDE DRHARBOUR LNROARIN
G
F
O
R
K
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POWER
PLANT
RDCASTLE CREEK DRS RIVERSIDE AVESPRUCE
CT
MUSIC S
C
H
O
O
L
CI
R
ASPEN GROVE RDPITKIN
MESA
DR
CINNA
M
O
N
C
T CLEVELAND STOVERLOOK DRQUEEN ST
CASCADE LN SESAME STCASTLE RIDGE RD COTTONWOOD LN
TWIN RIDGE DRPEARL CT
MIDLAND P
A
R
K
P
L
SHAVANO DRSUMMI
T
S
TMAROON CTFIVE TR
E
ES
L
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T
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L
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TLAZY CHAIR RANCH RDFABI LOOPW NORT
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T
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E S
ILV
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R
CT
CLUBSIDE DR
HIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LN
TOBY L
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DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VI
S
T
A
D
R
CLUB CIR
E FRANCIS ST
MTN LAUREL CTSALVATIO
N
CI
R
ASPEN ME
A
D
O
W
S
S WILLOW
CT
WOOD DUCK LN
GROVE CT
W NORTH
S
T
DEAN ST
E BLEEK
E
R
S
T
W NORTH
S
TSTAGE RDHWY 82ALLEY
DEAN ST
E COOPE
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. NordicAlignment
U
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’EOP to EOPtravel lanes multi-usepath10’34’40’EOP to EOPshared travel lanes
A Section: Multi-use Path
Scale: N/A B Section: Bike Boulevard
Scale: N/A
A
A’
B
B’
Recommended Facility Aids
Rectangular Rapid Flash
Beacon (RRFB)
Wecycle Station
Underpass
Proposed Sidewalks
Recommeded Bicycle Facilities
Protected Bike Lane
Bike Lane
Advisory Bike Lane
Sharrow
Bike Boulevard
Multi-Use Paved Trail
Unpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
82
82
82
82
82
82
P
U
U
UU
U
U
U
AspenRec Center
Aspen High School
Music Tentand
Harris Hall
AspenInstitute
Aspen Center for
Environmental Studies
Pitkin County
Library
and Plaza
Aspen Art
Museum
AspenMountainGondola Plaza
Wheeler
Opera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park Transit Center
Red Brick
Rec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen Highlands
Base Area
Aspen - Pitkin
County Airport
Aspen Business Center
Aspen
City
Hall
To Sky
Mountain Park
Marolt
Museum
Aspen Golf Clubhouseand Nordic Center
Bike ToolStation
Bike ToolStation
Red Butte
Moore Open Space
Burlingame Ranch/Deer Hill
Red Butte
Red Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside Park
Annie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt Red Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring F
o
r
k
R
i
v
e
r
Roaring
Fork
R
iver
Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio
G
r
an
d
e
T
ra
i
l
Climbing
Bike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CREEK
RDUTE
AV
E
STAGE RD
WILLOUGHBY WAY
MOORE DR
W MAI
N
S
T
HYMAN
A
V
E
E MAIN
S
T
ASPEN MTN
R
D
E DURA
N
T
A
V
EN 4TH STPFISTER DR
GIBSO
N
A
V
EN 5TH STN 6TH STRED MTN
RD
W BLEE
K
E
R
S
T
MEADOWOOD DRRELAY RDS ASPEN STW FRA
N
C
I
S
S
TN 7TH STW SMU
G
G
L
E
R
S
T
S 7TH STN MILL STE AIRPORT RDW HOP
K
I
N
S
A
V
E SPRUCE STN 2ND STHARMONY RDRED
B
U
T
T
E
D
R
N 1ST STDOOLITTLE DRMEADOWS RDGLEN EAGLES DRSMUGGLER MTN RDPARK AVEN 8TH STPIT
K
I
N
W
A
Y
FALCON RD
SILVE
R
K
I
N
G
D
R
MTN LAUREL
DRLAKE AVEHIGHLAN
D
S
S
U
M
M
E
R
R
D MCSKIMMING RDS ORIGINAL STFORGE RDMAROLT PL
HEATHER LN SILVERLODE
DRPYRAMID RDE LUP
INE
DRSNEAKY LNOAK LN
LON
E
P
I
N
E
R
D
S HUNTER STPOWDERBOWL TRLS WEST END STMUSIC SCHOOL RDPAEPCKE DR
VINE ST
NEALE AVEN SPRING STUTE PL
GILLESPIE ST N 3RD
ST
HOM
E
S
T
A
K
E
D
R
SHADY LNMIDLAND AVEEASTWOOD DR
STILLWATER LNKING
S
T
E BLEEK
E
R
S
T
THUNDERBOW
L
L
N MCLAIN
FLATS
RDEXHIBITION LNBONITA DRMTN VIEW DR
GLEN DEE RDWESTVIEW DR
WATERS
A
V
EBUTTERMILK SUMMER RDMAPLE LNMAROON DRPASSGO LNW HALL
A
M
S
T
RACE STSKIMMING LN
TRU
S
C
O
T
T
P
L
N GARMISCH STSNOWBUNNY LN
ROARING FOR
K
D
RARDMORE DRHALLAM
S
TSIERRA VISTA DRMINING STOCK PKWYN ASPEN STHIGH S
C
H
O
O
L
R
D
W LUP
INE
DRCHATFIELD RDAJAX AVEPROS
P
E
C
T
O
R
R
D
OWL C
R
E
E
K
R
D
NORTHWAY DRBOOM
E
R
A
N
G
R
D WILLIAMS WAYNICHOLAS
LN
JUAN ST
STA
G
E
C
T
RIVERSIDE DRHARBOUR LNROARI
N
G F
O
R
K
R
D
POWER PLANT
RDCASTLE CREEK DRS RIVERSIDE AVESPRUCE CT
MUSIC S
C
H
O
O
L
CI
R
ASPEN GROVE RDPITKIN MESA DRCINNA
M
O
N
C
T CLEVELAND STOVERLOOK DRQUEEN ST
CASCADE LN SESAME STCASTLE RIDGE RD COTTONWOOD LNTWIN RIDGE DRPEARL CT
MIDLAND
P
A
R
K
P
L
SHAVANO DRSUMMI
T
S
TMAROON CTFIVE T
REE
S L
N
GILBER
T
S
T
T
EA
L
C
TLAZY CHAIR RANCH RDFABI LOOPW NORT
H
S
T
FREE S
I
LVER
CT
CLUBSIDE DR
HIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LNTOBY L
NOREGON TRLALICE LNRIVER
DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VI
S
T
A
D
R
CLUB CIR
E FRANCIS ST
MTN LAUREL CTSALVATIO
N
CI
R
ASPEN M
E
A
D
O
W
S
S W
ILLOW
CT
WOOD DUCK LN
GROVE CTW NORT
H
S
T
DEAN S
T
E BLEEK
E
R
S
T
W NORT
H
S
TSTAGE RDHWY 82
ALLEY
DEAN S
T
E COOP
E
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. Nordic
Alignment
U
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’
EOP to EOP
travel lanes multi-use
path
10’34’
40’
EOP to EOP
shared travel lanes
A Section: Multi-use Path
Scale: N/A B Section: Bike Boulevard
Scale: N/A
A
A’
B
B’
Recommended Facility Aids
Rectangular Rapid Flash
Beacon (RRFB)
Wecycle Station
Underpass
Proposed Sidewalks
Recommeded Bicycle Facilities
Protected Bike Lane
Bike Lane
Advisory Bike Lane
Sharrow
Bike Boulevard
Multi-Use Paved Trail
Unpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
Existing ConditionsRecommended Bicycle Facilities MapEnlargement 1 of 3P208V.
B
B
B
B
B
B
B
B
BB
B
B
B
B
B
B
B
B
B
B
BBBBB
B
B
B
B
B
B
B
B
B
B
B
B
82
82
82
82
82
82
P
U
U
UUUU
U
Aspen
Rec Center
Aspen High School
Music Tent
and
Harris Hall
AspenInstitute
Aspen Center for
Environmental Studies
Pitkin County
Library
and Plaza
Aspen Art
Museum
Aspen
Mountain
Gondola Plaza
Wheeler
Opera House
Hotel
Jerome
Clark’s
Market
Aspen Highlands
Ruby Park
Transit Center
Red Brick
Rec and Arts Center
Aspen Grove Cemetery
Wheeler/Stallard
House Museum
Aspen Center
for Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen Highlands
Base Area
Aspen - PitkinCounty AirportAspen Business Center
Aspen
City
Hall
To Sky Mountain Park
Marolt
Museum
Aspen Golf Clubhouseand Nordic CenterBike ToolStation
Bike Tool
Station
Red Butte
Moore Open Space
Burlingame Ranch/Deer HillRed ButteRed Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin ReserveMaroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside ParkAnnie Mitchell Open Space
Mill Street Parcel
AABC GreenbeltRed Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing AreaAirport RanchSewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring Fork River
Roaring
Fork
R
iver
Roaring Fork RiverMaroon CreekCastle CreekAspen GolfZoline PropertyMaroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson Park
Rio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa Park
Pioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio
G
rande
T
ra
i
l
Climbing
Bike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CREEK
RDUTE AVE
STAGE RD WILLOUGHBY WAY
MOORE D
R
W MAI
N
S
T
HYMA
N
A
V
E
E MAIN
S
T
ASPEN MTN
R
D
E DUR
A
N
T
A
V
EN 4TH STPFISTER DRGIBSO
N
A
V
EN 5TH STN 6TH STRED MTN
RD
W BLEE
K
E
R
S
T
MEADOWOOD DRRELAY RDS ASPEN STW FRA
N
C
I
S
S
TN 7TH STW SMU
G
G
L
E
R
S
T
S 7TH STN MILL STE AIRPORT RDW HOP
K
I
N
S
A
V
E SPRUCE STN 2ND STHARMONY RDRED BUTTE DR
N 1ST STDOOLITTLE DRMEADOWS RDGLEN EAGLES DRSMUGGLER MTN RDPARK AVEN 8TH STPITKIN WAY
FALCON RD
SILVER KING DR
MTN LAUREL
DRLAKE AVEHIGHLAN
D
S
S
U
M
M
E
R
R
D MCSKIMMING RDS ORIGINAL STFORGE RDMAROLT PL
HEATHER LN SILVERLODE DRPYRAMID RDE LUP
INE
DRSNEAKY LNOAK LNLON
E
P
I
N
E
R
D
S HUNTER STPOWDERBOWL TRLS WEST END STMUSIC SCHOOL RDPAEPCKE DR
VINE ST
NEALE AVEN SPRING STUTE PL
GILLESPIE ST N 3RD
ST
HOMESTAKE DR
SHADY LNMIDLAND AVEEASTWOOD DR
STILLWATER LNKIN
G
S
T
E BLEE
K
E
R
S
T
THUNDERBOW
L
L
NMCLAIN FLATS RDEXHIBITION LNBONITA DRMTN VIEW DR
GLEN DEE RDWESTVIEW DR
WATERS
A
V
EBUTTERMILK SUMMER RDMAPLE LNMAROON DRPASSGO LNW HAL
L
A
M
S
T
RACE STSKIMMING LN
TRUSCOTT
P
L
N GARMISCH STSNOWBUNNY LN
ROARING FOR
K
D
RARDMORE DRHALLA
M
S
TSIERRA VISTA DRMINING STOCK PKWYN ASPEN STHIGH S
C
H
O
O
L
R
D
W LUP
INE
DRCHATFIELD RDAJAX AVEPROS
P
E
C
T
O
R
R
D
OWL CREEK RD
NORTHWAY DRBOOM
E
R
A
N
G
R
D WILLIAMS WAYNICHOLAS
LN
JUAN S
T
STAGE CT
RIVERSIDE DRHARBOUR LNROARI
N
G F
O
R
K
R
D
POWER PLANT
RDCASTLE CREEK DRS RIVERSIDE AVESPRUCE CT
MUSIC S
C
H
O
O
L
CI
R
ASPEN GROVE RDPITKIN MESA DRCINNA
M
O
N
C
T CLEVELAND STOVERLOOK DRQUEEN S
T
CASCADE LN SESAME STCASTLE RIDGE RD COTTONWOOD LNTWIN RIDGE DRPEARL CT
MIDLAND
P
A
R
K
P
L
SHAVANO DRSUMM
I
T
S
TMAROON CTFIVE TREES L
N
GILBE
R
T
S
T TEAL
CTLAZY CHAIR RANCH RDFABI LOOPW NOR
T
H
S
T
FREE S
ILVER
CT
CLUBSIDE DR
HIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LNTOBY
L
NOREGON TRLALICE LNRIVER DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VISTA DRCLUB CIR
E FRANCIS ST
MTN LAUREL CTSALVATION CIRASPEN MEADOWS
S WILLOW CTWOOD DUCK LN
GROVE CTW NORT
H
S
T
DEAN S
T
E BLEE
K
E
R
S
T
W NOR
T
H
S
TSTAGE RDHWY 82ALLEY
DEAN S
T
E COOP
E
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. Nordic
Alignment
U
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’EOP to EOPtravel lanes multi-usepath10’34’40’EOP to EOPshared travel lanesASection: Multi-use Path Scale: N/A B Section: Bike Boulevard Scale: N/A
A
A’
B
B’
Recommended Facility Aids Rectangular Rapid Flash Beacon (RRFB)Wecycle StationUnderpassProposed SidewalksRecommeded Bicycle Facilities
Protected Bike Lane
Bike Lane
Advisory Bike Lane
Sharrow
Bike Boulevard
Multi-Use Paved Trail
Unpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
82
82
82
82
82
82
P
U
U
UU
U
U
U
AspenRec Center
Aspen High School
Music Tentand Harris Hall
AspenInstitute
Aspen Center forEnvironmental Studies
Pitkin CountyLibrary and Plaza
Aspen ArtMuseum
AspenMountainGondola Plaza
WheelerOpera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park Transit Center
Red BrickRec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
AspenIce Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen HighlandsBase Area
Aspen - PitkinCounty Airport
Aspen Business Center
Aspen City Hall
To Sky Mountain Park
Marolt Museum
Aspen Golf Clubhouseand Nordic Center
Bike ToolStation
Bike ToolStation
Red Butte
Moore Open Space
Burlingame Ranch/Deer Hill
Red Butte
Red Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside ParkAnnie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt Red Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring For
k
R
i
v
e
r
Roar
ing
Fo
rk
R
ive
r
Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio G
r
an
d
e
T
r
a
i
l
ClimbingBike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CRE
EK
RDUTE
A
V
E
STAGE RD
WILLOUGHBY WAY
MOORE DR
W MAIN
S
T
HYMAN
A
V
E
E MAIN S
T
ASPEN MTN R
D
E DURAN
T
A
V
EN 4TH STPFISTER
DR
GIBSON
A
V
EN 5TH STN 6TH STRED M
TN
RD
W BLEEK
E
R
S
T
MEADOWOOD DRRELAY RDS ASPEN STW FRAN
C
I
S
S
TN 7TH STW SMUG
G
L
E
R
S
T
S 7TH
ST N MILL STE AIRPORT RDW HOPKI
N
S
A
V
E SPRUCE STN 2ND STHARMONY RDRED
B
U
T
T
E
D
R
N 1ST STDOOLITTLE
DRMEADOWS RDGLEN EAGLES DRSMUGGLER MTN RDPARK AVEN 8TH STPIT
K
I
N
W
A
Y
FALCON RD
SILVE
R
K
I
N
G
D
R
MTN
LAURE
L
DRLAKE AVEHIGHLAN
D
S
S
U
M
M
E
R
R
D MCSKIMMING
RDS ORIGINAL STFORGE RDMAROLT
PL
HEATHER LN SILVERLODE
DRPYRAMID RDE
LUP
INE
DRSNEAKY LNOAK LN
LONE
P
I
N
E
R
D
S HUNTER STPOWDERBOWL TRLS WEST END STMUSIC SCHOOL RDPAEPCKE DR
VINE ST
NEALE AVEN SPRING STUTE PL
GILLESPIE ST N 3RD
ST
HOM
E
S
T
A
K
E
D
R
SHADY LNMIDLAND AVE
EASTWOOD DR
STILLWATER LNKING
S
T
E BLEEK
E
R
S
T
THUNDERBOWL L
N MCLAIN
FLATS
RDEXHIBITION LNBONITA DR
MTN VIEW DR
GLEN DEE RDWESTVIEW DR
WATERS
A
V
EBUTTERMILK SUMMER RDMAPLE LNMAROON DRPASSGO LNW HALL
A
M
S
T
RACE STSKIMMING LN
TRU
S
C
O
T
T
P
L
N GARMISCH STSNOWBUNNY LN
ROARING FORK DRARDMORE DRHALLAM
S
TSIERRA VISTA DRMINING STOCK PKWYN ASPEN STHIGH SC
H
O
O
L
R
D
W LUPINE
DRCHATFIELD RDAJAX AVE
PROSP
E
C
T
O
R
R
D
OWL C
R
E
E
K
R
D
NORTHWAY DRBOOME
R
A
N
G
R
D WILLIAMS WAYNICHOLA
S
LN
JUAN ST
STA
G
E
C
T
RIVERSIDE DRHARBOUR LNROARIN
G
F
O
R
K
R
D
POWER
PLANT
RDCASTLE CREEK DRS RIVERSIDE AVESPRUCE
CT
MUSIC S
C
H
O
O
L
CI
R
ASPEN GROVE RDPITKIN
MESA
DR
CINNA
M
O
N
C
T CLEVELAND STOVERLOOK DRQUEEN ST
CASCADE LN SESAME STCASTLE RIDGE RD COTTONWOOD LN
TWIN RIDGE DRPEARL CT
MIDLAND P
A
R
K
P
L
SHAVANO DRSUMMI
T
S
TMAROON CTFIVE TR
E
ES
L
N
GILBER
T
S
T
TE
A
L
C
TLAZY CHAIR RANCH RDFABI LOOPW NORT
H
S
T
FRE
E S
ILV
E
R
CT
CLUBSIDE DR
HIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LN
TOBY L
NOREGON TRLALICE LNRIVER
DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VI
S
T
A
D
R
CLUB CIR
E FRANCIS ST
MTN LAUREL CTSALVATIO
N
CI
R
ASPEN ME
A
D
O
W
S
S WILLOW
CT
WOOD DUCK LN
GROVE CT
W NORTH
S
T
DEAN ST
E BLEEK
E
R
S
T
W NORTH
S
TSTAGE RDHWY 82ALLEY
DEAN ST
E COOPE
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. NordicAlignment
U
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’EOP to EOPtravel lanes multi-usepath10’34’40’EOP to EOPshared travel lanes
A Section: Multi-use Path
Scale: N/A B Section: Bike Boulevard
Scale: N/A
A
A’
B
B’
Recommended Facility Aids
Rectangular Rapid Flash
Beacon (RRFB)
Wecycle Station
Underpass
Proposed Sidewalks
Recommeded Bicycle Facilities
Protected Bike Lane
Bike Lane
Advisory Bike Lane
Sharrow
Bike Boulevard
Multi-Use Paved Trail
Unpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
Existing ConditionsRecommended Bicycle Facilities MapEnlargement 2 of 3B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
82
82
82
82
82
82
P
U
U
UU
U
U
U
AspenRec Center
Aspen High School
Music Tentand
Harris Hall
AspenInstitute
Aspen Center for
Environmental Studies
Pitkin County
Library
and Plaza
Aspen Art
Museum
AspenMountainGondola Plaza
Wheeler
Opera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park Transit Center
Red Brick
Rec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen Highlands
Base Area
Aspen - Pitkin
County Airport
Aspen Business Center
Aspen
City
Hall
To Sky
Mountain Park
Marolt
Museum
Aspen Golf Clubhouseand Nordic Center
Bike ToolStation
Bike ToolStation
Red Butte
Moore Open Space
Burlingame Ranch/Deer Hill
Red Butte
Red Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside Park
Annie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt Red Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring F
o
r
k
R
i
v
e
r
Roaring
Fork
R
iver
Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio
G
r
an
d
e
T
ra
i
l
Climbing
Bike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CREEK
RDUTE
AV
E
STAGE RD
WILLOUGHBY WAY
MOORE DR
W MAI
N
S
T
HYMAN
A
V
E
E MAIN
S
T
ASPEN MTN
R
D
E DURA
N
T
A
V
EN 4TH STPFISTER DR
GIBSO
N
A
V
EN 5TH STN 6TH STRED MTN
RD
W BLEE
K
E
R
S
T
MEADOWOOD DRRELAY RDS ASPEN STW FRA
N
C
I
S
S
TN 7TH STW SMU
G
G
L
E
R
S
T
S 7TH STN MILL STE AIRPORT RDW HOP
K
I
N
S
A
V
E SPRUCE STN 2ND STHARMONY RDRED
B
U
T
T
E
D
R
N 1ST STDOOLITTLE DRMEADOWS RDGLEN EAGLES DRSMUGGLER MTN RDPARK AVEN 8TH STPIT
K
I
N
W
A
Y
FALCON RD
SILVE
R
K
I
N
G
D
R
MTN LAUREL
DRLAKE AVEHIGHLAN
D
S
S
U
M
M
E
R
R
D MCSKIMMING RDS ORIGINAL STFORGE RDMAROLT PL
HEATHER LN SILVERLODE
DRPYRAMID RDE LUP
INE
DRSNEAKY LNOAK LN
LON
E
P
I
N
E
R
D
S HUNTER STPOWDERBOWL TRLS WEST END STMUSIC SCHOOL RDPAEPCKE DR
VINE ST
NEALE AVEN SPRING STUTE PL
GILLESPIE ST N 3RD
ST
HOM
E
S
T
A
K
E
D
R
SHADY LNMIDLAND AVEEASTWOOD DR
STILLWATER LNKING
S
T
E BLEEK
E
R
S
T
THUNDERBOW
L
L
N MCLAIN
FLATS
RDEXHIBITION LNBONITA DRMTN VIEW DR
GLEN DEE RDWESTVIEW DR
WATERS
A
V
EBUTTERMILK SUMMER RDMAPLE LNMAROON DRPASSGO LNW HALL
A
M
S
T
RACE STSKIMMING LN
TRU
S
C
O
T
T
P
L
N GARMISCH STSNOWBUNNY LN
ROARING FOR
K
D
RARDMORE DRHALLAM
S
TSIERRA VISTA DRMINING STOCK PKWYN ASPEN STHIGH S
C
H
O
O
L
R
D
W LUP
INE
DRCHATFIELD RDAJAX AVEPROS
P
E
C
T
O
R
R
D
OWL C
R
E
E
K
R
D
NORTHWAY DRBOOM
E
R
A
N
G
R
D WILLIAMS WAYNICHOLAS
LN
JUAN ST
STA
G
E
C
T
RIVERSIDE DRHARBOUR LNROARI
N
G F
O
R
K
R
D
POWER PLANT
RDCASTLE CREEK DRS RIVERSIDE AVESPRUCE CT
MUSIC S
C
H
O
O
L
CI
R
ASPEN GROVE RDPITKIN MESA DRCINNA
M
O
N
C
T CLEVELAND STOVERLOOK DRQUEEN ST
CASCADE LN SESAME STCASTLE RIDGE RD COTTONWOOD LNTWIN RIDGE DRPEARL CT
MIDLAND
P
A
R
K
P
L
SHAVANO DRSUMMI
T
S
TMAROON CTFIVE T
REE
S L
N
GILBER
T
S
T
T
EA
L
C
TLAZY CHAIR RANCH RDFABI LOOPW NORT
H
S
T
FREE S
I
LVER
CT
CLUBSIDE DR
HIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LNTOBY L
NOREGON TRLALICE LNRIVER
DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VI
S
T
A
D
R
CLUB CIR
E FRANCIS ST
MTN LAUREL CTSALVATIO
N
CI
R
ASPEN M
E
A
D
O
W
S
S W
ILLOW
CT
WOOD DUCK LN
GROVE CTW NORT
H
S
T
DEAN S
T
E BLEEK
E
R
S
T
W NORT
H
S
TSTAGE RDHWY 82
ALLEY
DEAN S
T
E COOP
E
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. Nordic
Alignment
U
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’
EOP to EOP
travel lanes multi-use
path
10’34’
40’
EOP to EOP
shared travel lanes
A Section: Multi-use Path
Scale: N/A B Section: Bike Boulevard
Scale: N/A
A
A’
B
B’
Recommended Facility Aids
Rectangular Rapid Flash
Beacon (RRFB)
Wecycle Station
Underpass
Proposed Sidewalks
Recommeded Bicycle Facilities
Protected Bike Lane
Bike Lane
Advisory Bike Lane
Sharrow
Bike Boulevard
Multi-Use Paved Trail
Unpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
P209V.
BB
B
B
B
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B
B
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B
B
BBB
B
B
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82
82
82
P
UUUUUU
U
Aspen
Rec Center
Aspen High SchoolMusic Tentand Harris HallAspenInstitute Aspen Center forEnvironmental Studies
Pitkin County
Library
and Plaza
Aspen Art
Museum
Aspen
Mountain
Gondola Plaza
Wheeler
Opera House
Hotel
Jerome
Clark’sMarket
Aspen Highlands
Ruby Park
Transit Center
Red BrickRec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse MuseumAspen Centerfor Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen Highlands
Base Area
Aspen - PitkinCounty AirportAspen Business Center
Aspen
City
Hall
To Sky Mountain ParkMarolt MuseumAspen Golf Clubhouseand Nordic CenterBike ToolStation
Bike Tool
Station
Red ButteMoore Open SpaceBurlingame Ranch/Deer HillRed ButteRed Butte Ranch Open SpaceMarolt Ranch
Barbee
North Ranch Hallam LakeMeadows Lot 4Thomas Ranch PropertyPitkin ReserveMaroon Creek Wetlands Randall ParkDeer Hill/ Park Trust Exemption Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair ParkStein Riverside ParkAnnie Mitchell Open Space Mill Street ParcelAABC GreenbeltRed Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing AreaAirport RanchSewer Falls Ice Climbing Area Rubey Lot 7 Lindsay ParcelRoaring Fork River
Roaring
Fork
R
iver
Roaring Fork RiverMaroon CreekCastle CreekAspen GolfZoline PropertyMaroon Creek Golf CourseMaroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver SanctuaryAcross The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot ParkHillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park Fox Crossing Park Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio Grande Trail
Climbing
Bike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CREEK RDUTE AVE
STAGE RD WILLOUGHBY WAY
MOORE D
R
W MAIN ST
HYMA
N
A
V
E
E MAIN
S
T
ASPEN MTN
R
D
E DURA
N
T
A
V
EN 4TH STPFISTER DRGIBSON AVEN 5TH STN 6TH STRED MTN RDW BLEEKER ST
MEADOWOOD DRRELAY RDS ASPEN STW FRANCIS STN 7TH STW SMUGGLER ST
S 7TH STN MILL STE AIRPORT RDW HOP
K
I
N
S
A
V
E SPRUCE STN 2ND STHARMONY RDRED BUTTE DR N 1ST STDOOLITTLE DRMEADOWS RDGLEN EAGLES DRSMUGGLER MTN RDPARK AVEN 8TH STPITKIN WAY
FALCON RD
SILVER KING DR
MTN LAUREL
DRLAKE AVEHIGHLAN
D
S
S
U
M
M
E
R
R
D MCSKIMMING RDS ORIGINAL STFORGE RDMAROLT PLHEATHER LN SILVERLODE DRPYRAMID RDE LUP
INE
DRSNEAKY LNOAK LNLONE PINE RD
S HUNTER STPOWDERBOWL TRLS WEST END STMUSIC SCHOOL RDPAEPCKE DRVINE ST
NEALE AVEN SPRING STUTE PL
GILLESPIE STN 3RD STHOMESTAKE DR SHADY LNMIDLAND AVEEASTWOOD DR
STILLWATER LNKIN
G
S
T
E BLEEKER ST
THUNDERBO
W
L
L
NMCLAIN FLATS RDEXHIBITION LNBONITA DRMTN VIEW DR
GLEN DEE RDWESTVIEW DR
WATER
S
A
V
EBUTTERMILK SUMMER RDMAPLE LNMAROON DRPASSGO LNW HALLAM ST RACE STSKIMMING LN
TRUSCOTT PL N GARMISCH STSNOWBUNNY LN
ROARING FOR
K
D
RARDMORE DRHALLAM STSIERRA VISTA DRMINING STOCK PKWYN ASPEN STHIGH S
C
H
O
O
L
R
D
W LUP
INE
DRCHATFIELD RDAJAX AVEPROS
PE
CT
O
R
R
D
OWL CREEK RD
NORTHWAY DRBOOME
R
A
N
G
R
D WILLIAMS WAYNICHOLAS LN
JUAN S
T
STAGE CT
RIVERSIDE DRHARBOUR LNROARING FORK RDPOWER PLANT RDCASTLE CREEK DRS RIVERSIDE AVESPRUCE CT
MUSIC S
C
H
O
O
L
CI
R
ASPEN GROVE RDPITKIN MESA DRCINNA
M
O
N
C
T CLEVELAND STOVERLOOK DRQUEEN S
T
CASCADE LN SESAME STCASTLE RIDGE RD COTTONWOOD LNTWIN RIDGE DRPEARL CT
MIDLAND
P
A
R
K
P
L
SHAVANO DRSUMM
I
T
S
TMAROON CTFIVE TREES L
N
GILBE
R
T
S
T TEAL CTLAZY CHAIR RANCH RDFABI LOOPW NORTH ST FREE SILVER CTCLUBSIDE DRHIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LNTOBY
L
NOREGON TRLALICE LNRIVER DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VISTA DRCLUB CIR E FRANCIS ST
MTN LAUREL CTSALVATION CIRASPEN MEADOWSS WILLOW CTWOOD DUCK LN
GROVE CTW NORTH ST
DEAN S
T
E BLEE
K
E
R
S
T
W NORTH STSTAGE RDHWY 82ALLEY
DEAN S
T
E COOP
E
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. NordicAlignmentU
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’EOP to EOPtravel lanes multi-usepath10’34’40’EOP to EOPshared travel lanesASection: Multi-use Path Scale: N/A B Section: Bike Boulevard Scale: N/AAA’BB’Recommended Facility Aids Rectangular Rapid Flash Beacon (RRFB)Wecycle StationUnderpassProposed SidewalksRecommeded Bicycle FacilitiesProtected Bike LaneBike LaneAdvisory Bike LaneSharrowBike BoulevardMulti-Use Paved TrailUnpaved TrailExisting Bicycle FacilitiesBike LaneSharrowMulti-Use PathUnpaved TrailExisting Conditions Elementsand DestinationsChallenging Trail SegmentCar Share LocationsWecycle StationsTransit StopsTrailheadsTraffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
82
82
82
82
82
82
P
U
U
UU
U
U
U
AspenRec Center
Aspen High School
Music Tentand Harris Hall
AspenInstitute
Aspen Center forEnvironmental Studies
Pitkin CountyLibrary and Plaza
Aspen ArtMuseum
AspenMountainGondola Plaza
WheelerOpera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park Transit Center
Red BrickRec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
AspenIce Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen HighlandsBase Area
Aspen - PitkinCounty Airport
Aspen Business Center
Aspen City Hall
To Sky Mountain Park
Marolt Museum
Aspen Golf Clubhouseand Nordic Center
Bike ToolStation
Bike ToolStation
Red Butte
Moore Open Space
Burlingame Ranch/Deer Hill
Red Butte
Red Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside ParkAnnie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt Red Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring For
k
R
i
v
e
r
Roar
ing
Fo
rk
R
ive
r
Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio G
r
an
d
e
T
r
a
i
l
ClimbingBike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CRE
EK
RDUTE
A
V
E
STAGE RD
WILLOUGHBY WAY
MOORE DR
W MAIN
S
T
HYMAN
A
V
E
E MAIN S
T
ASPEN MTN R
D
E DURAN
T
A
V
EN 4TH STPFISTER
DR
GIBSON
A
V
EN 5TH STN 6TH STRED M
TN
RD
W BLEEK
E
R
S
T
MEADOWOOD DRRELAY RDS ASPEN STW FRAN
C
I
S
S
TN 7TH STW SMUG
G
L
E
R
S
T
S 7TH
ST N MILL STE AIRPORT RDW HOPKI
N
S
A
V
E SPRUCE STN 2ND STHARMONY RDRED
B
U
T
T
E
D
R
N 1ST STDOOLITTLE
DRMEADOWS RDGLEN EAGLES DRSMUGGLER MTN RDPARK AVEN 8TH STPIT
K
I
N
W
A
Y
FALCON RD
SILVE
R
K
I
N
G
D
R
MTN
LAURE
L
DRLAKE AVEHIGHLAN
D
S
S
U
M
M
E
R
R
D MCSKIMMING
RDS ORIGINAL STFORGE RDMAROLT
PL
HEATHER LN SILVERLODE
DRPYRAMID RDE
LUP
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DRSNEAKY LNOAK LN
LONE
P
I
N
E
R
D
S HUNTER STPOWDERBOWL TRLS WEST END STMUSIC SCHOOL RDPAEPCKE DR
VINE ST
NEALE AVEN SPRING STUTE PL
GILLESPIE ST N 3RD
ST
HOM
E
S
T
A
K
E
D
R
SHADY LNMIDLAND AVE
EASTWOOD DR
STILLWATER LNKING
S
T
E BLEEK
E
R
S
T
THUNDERBOWL L
N MCLAIN
FLATS
RDEXHIBITION LNBONITA DR
MTN VIEW DR
GLEN DEE RDWESTVIEW DR
WATERS
A
V
EBUTTERMILK SUMMER RDMAPLE LNMAROON DRPASSGO LNW HALL
A
M
S
T
RACE STSKIMMING LN
TRU
S
C
O
T
T
P
L
N GARMISCH STSNOWBUNNY LN
ROARING FORK DRARDMORE DRHALLAM
S
TSIERRA VISTA DRMINING STOCK PKWYN ASPEN STHIGH SC
H
O
O
L
R
D
W LUPINE
DRCHATFIELD RDAJAX AVE
PROSP
E
C
T
O
R
R
D
OWL C
R
E
E
K
R
D
NORTHWAY DRBOOME
R
A
N
G
R
D WILLIAMS WAYNICHOLA
S
LN
JUAN ST
STA
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C
T
RIVERSIDE DRHARBOUR LNROARIN
G
F
O
R
K
R
D
POWER
PLANT
RDCASTLE CREEK DRS RIVERSIDE AVESPRUCE
CT
MUSIC S
C
H
O
O
L
CI
R
ASPEN GROVE RDPITKIN
MESA
DR
CINNA
M
O
N
C
T CLEVELAND STOVERLOOK DRQUEEN ST
CASCADE LN SESAME STCASTLE RIDGE RD COTTONWOOD LN
TWIN RIDGE DRPEARL CT
MIDLAND P
A
R
K
P
L
SHAVANO DRSUMMI
T
S
TMAROON CTFIVE TR
E
ES
L
N
GILBER
T
S
T
TE
A
L
C
TLAZY CHAIR RANCH RDFABI LOOPW NORT
H
S
T
FRE
E S
ILV
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CT
CLUBSIDE DR
HIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LN
TOBY L
NOREGON TRLALICE LNRIVER
DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VI
S
T
A
D
R
CLUB CIR
E FRANCIS ST
MTN LAUREL CTSALVATIO
N
CI
R
ASPEN ME
A
D
O
W
S
S WILLOW
CT
WOOD DUCK LN
GROVE CT
W NORTH
S
T
DEAN ST
E BLEEK
E
R
S
T
W NORTH
S
TSTAGE RDHWY 82ALLEY
DEAN ST
E COOPE
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. NordicAlignment
U
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’EOP to EOPtravel lanes multi-usepath10’34’40’EOP to EOPshared travel lanes
A Section: Multi-use Path
Scale: N/A B Section: Bike Boulevard
Scale: N/A
A
A’
B
B’
Recommended Facility Aids
Rectangular Rapid Flash
Beacon (RRFB)
Wecycle Station
Underpass
Proposed Sidewalks
Recommeded Bicycle Facilities
Protected Bike Lane
Bike Lane
Advisory Bike Lane
Sharrow
Bike Boulevard
Multi-Use Paved Trail
Unpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
Existing ConditionsRecommended Bicycle Facilities MapEnlargement 3 of 3B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
82
82
82
82
82
82
P
U
U
UU
U
U
U
AspenRec Center
Aspen High School
Music Tentand
Harris Hall
AspenInstitute
Aspen Center for
Environmental Studies
Pitkin County
Library
and Plaza
Aspen Art
Museum
AspenMountainGondola Plaza
Wheeler
Opera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park Transit Center
Red Brick
Rec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen Highlands
Base Area
Aspen - Pitkin
County Airport
Aspen Business Center
Aspen
City
Hall
To Sky
Mountain Park
Marolt
Museum
Aspen Golf Clubhouseand Nordic Center
Bike ToolStation
Bike ToolStation
Red Butte
Moore Open Space
Burlingame Ranch/Deer Hill
Red Butte
Red Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside Park
Annie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt Red Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring F
o
r
k
R
i
v
e
r
Roaring
Fork
R
iver
Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio
G
r
an
d
e
T
ra
i
l
Climbing
Bike Lane
AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CREEK
RDUTE
AV
E
STAGE RD
WILLOUGHBY WAY
MOORE DR
W MAI
N
S
T
HYMAN
A
V
E
E MAIN
S
T
ASPEN MTN
R
D
E DURA
N
T
A
V
EN 4TH STPFISTER DR
GIBSO
N
A
V
EN 5TH STN 6TH STRED MTN
RD
W BLEE
K
E
R
S
T
MEADOWOOD DRRELAY RDS ASPEN STW FRA
N
C
I
S
S
TN 7TH STW SMU
G
G
L
E
R
S
T
S 7TH STN MILL STE AIRPORT RDW HOP
K
I
N
S
A
V
E SPRUCE STN 2ND STHARMONY RDRED
B
U
T
T
E
D
R
N 1ST STDOOLITTLE DRMEADOWS RDGLEN EAGLES DRSMUGGLER MTN RDPARK AVEN 8TH STPIT
K
I
N
W
A
Y
FALCON RD
SILVE
R
K
I
N
G
D
R
MTN LAUREL
DRLAKE AVEHIGHLAN
D
S
S
U
M
M
E
R
R
D MCSKIMMING RDS ORIGINAL STFORGE RDMAROLT PL
HEATHER LN SILVERLODE
DRPYRAMID RDE LUP
INE
DRSNEAKY LNOAK LN
LON
E
P
I
N
E
R
D
S HUNTER STPOWDERBOWL TRLS WEST END STMUSIC SCHOOL RDPAEPCKE DR
VINE ST
NEALE AVEN SPRING STUTE PL
GILLESPIE ST N 3RD
ST
HOM
E
S
T
A
K
E
D
R
SHADY LNMIDLAND AVEEASTWOOD DR
STILLWATER LNKING
S
T
E BLEEK
E
R
S
T
THUNDERBOW
L
L
N MCLAIN
FLATS
RDEXHIBITION LNBONITA DRMTN VIEW DR
GLEN DEE RDWESTVIEW DR
WATERS
A
V
EBUTTERMILK SUMMER RDMAPLE LNMAROON DRPASSGO LNW HALL
A
M
S
T
RACE STSKIMMING LN
TRU
S
C
O
T
T
P
L
N GARMISCH STSNOWBUNNY LN
ROARING FOR
K
D
RARDMORE DRHALLAM
S
TSIERRA VISTA DRMINING STOCK PKWYN ASPEN STHIGH S
C
H
O
O
L
R
D
W LUP
INE
DRCHATFIELD RDAJAX AVEPROS
P
E
C
T
O
R
R
D
OWL C
R
E
E
K
R
D
NORTHWAY DRBOOM
E
R
A
N
G
R
D WILLIAMS WAYNICHOLAS
LN
JUAN ST
STA
G
E
C
T
RIVERSIDE DRHARBOUR LNROARI
N
G F
O
R
K
R
D
POWER PLANT
RDCASTLE CREEK DRS RIVERSIDE AVESPRUCE CT
MUSIC S
C
H
O
O
L
CI
R
ASPEN GROVE RDPITKIN MESA DRCINNA
M
O
N
C
T CLEVELAND STOVERLOOK DRQUEEN ST
CASCADE LN SESAME STCASTLE RIDGE RD COTTONWOOD LNTWIN RIDGE DRPEARL CT
MIDLAND
P
A
R
K
P
L
SHAVANO DRSUMMI
T
S
TMAROON CTFIVE T
REE
S L
N
GILBER
T
S
T
T
EA
L
C
TLAZY CHAIR RANCH RDFABI LOOPW NORT
H
S
T
FREE S
I
LVER
CT
CLUBSIDE DR
HIDEAWAY LNMOLLY CTN WILLOW CTS MEADOW LNTOBY L
NOREGON TRLALICE LNRIVER
DRS SPRING STMEADOWS TRUSTEEBUS BARN LNALTA VI
S
T
A
D
R
CLUB CIR
E FRANCIS ST
MTN LAUREL CTSALVATIO
N
CI
R
ASPEN M
E
A
D
O
W
S
S W
ILLOW
CT
WOOD DUCK LN
GROVE CTW NORT
H
S
T
DEAN S
T
E BLEEK
E
R
S
T
W NORT
H
S
TSTAGE RDHWY 82
ALLEY
DEAN S
T
E COOP
E
R
A
V
EN 3RD STHIGH SCHOOL RDMAROON CREEK RDN MONARCH STAlt. Nordic
Alignment
U
U
U
U
Existing ConditionsRecommended Facilities MapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’
EOP to EOP
travel lanes multi-use
path
10’34’
40’
EOP to EOP
shared travel lanes
A Section: Multi-use Path
Scale: N/A B Section: Bike Boulevard
Scale: N/A
A
A’
B
B’
Recommended Facility Aids
Rectangular Rapid Flash
Beacon (RRFB)
Wecycle Station
Underpass
Proposed Sidewalks
Recommeded Bicycle Facilities
Protected Bike Lane
Bike Lane
Advisory Bike Lane
Sharrow
Bike Boulevard
Multi-Use Paved Trail
Unpaved Trail
Existing Bicycle Facilities
Bike Lane
Sharrow
Multi-Use Path
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Parallel Parking
Angle Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
P
B
U
U
P210V.
Existing ConditionsMaster Sidewalk MapThis map outlines facilities recommended to the City of Aspen. it is based on existing conditions and the Needs Assessment.U
U
U
U
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
B
82
82
82
82
82
82
P
U
U
UU
U
U
U
Aspen
Rec Center
Aspen High School
Music Tent
and
Harris Hall
AspenInstitute
Aspen Center for
Environmental Studies
Pitkin CountyLibrary and Plaza
Aspen ArtMuseum
AspenMountainGondola Plaza
Wheeler
Opera House
Hotel Jerome
Clark’sMarket
Aspen Highlands
Ruby Park
Transit Center
Red BrickRec and Arts Center
Aspen Grove Cemetery
Wheeler/StallardHouse Museum
Aspen Centerfor Physics
Aspen
Ice Garden
Aspen Country Day School
Aspen Music School
Aspen Valley Hospital
Aspen HighlandsBase Area
Aspen - PitkinCounty Airport
Aspen Business Center
Aspen City Hall
To Sky Mountain Park
Marolt Museum
Aspen Golf Clubhouse
and Nordic Center
Bike ToolStation
Bike Tool
Station
Red Butte
Moore Open Space
Burlingame Ranch/Deer Hill
Red Butte
Red Butte Ranch Open Space
Marolt Ranch
Barbee
North Ranch
Hallam Lake
Meadows Lot 4
Thomas Ranch Property
Pitkin Reserve
Maroon Creek Wetlands
Randall Park
Deer Hill/ Park Trust Exemption
Hunter Valley Way
Ute Mesa
Ute Cemetery
Silverking Associates
Aspen Highlands Village
Center Lode Mining Claim
Moore Playing Fields Open Space
Rubey Lot 6/ Williams Woods
Little Cloud
Thomas Estate
Twin Ridge
Little Cloud Park
Millionaire Millsite
Jenny Adair Park
Stein Riverside Park
Annie Mitchell Open Space
Mill Street Parcel
AABC Greenbelt
Red Butte Ranch Open Space
Millionaire Lode
Holden Marolt barn area
Prockter Garrish Park
Reeder Open Space
Ute 1010 Open Space
Stein Open Space
Freddie Fisher Park
Gold Butte Climbing Area
Airport Ranch Sewer Falls Ice Climbing Area
Rubey Lot 7
Lindsay Parcel
Roaring F
o
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k
R
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e
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Roaring
Fork
R
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Roaring Fork RiverMaroon CreekCastle CreekAspen Golf
Zoline Property
Maroon Creek Golf Course
Maroon Creek Golf Course
Iselin Park
Moore Ballfields
Rotary Park
Molly Gibson ParkRio Grande Park
Ajax Park
Harmony Park
Ute Park
Wagner Park
Snyder Park
Herron Park
Anderson
Henry Stein Park
Newbury Park
John Denver Sanctuary
Across The Pond Park
Paepcke Park
Bugsy Barnard Park
Koch Lumber Park
Glory Hole Park
Willoughby Park
Yellow Brick School Park
Waite Robinson Park
Hyman Park and Mall
Cooper Park and Mall
Silver Circle Ice Rink
Tot Lot Park
Hillyard Park
Highland Villa Park
Francis Whitaker Park
Triangle Park
Fox Crossing Park
Willa ParkPioneer Park
Lift One A Park
Aspen Alps Park
Wheeler ParkRio
G
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AdvisorySidewalkHWY 82TIEHACK RDMAROON CREEK RDCEMETERY LNCASTLE CREEK
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Alignment
Existing ConditionsMaster SidewalkMapApril, 2015This map outlines facilities recommended to the City of Aspen. It is based on existing conditions and the needs assessment. 5000 1000250 2000 Feet
N
Scale: 1” = 500 Feet
44’
EOP to EOP
travel lanes multi-use
path
10’34’
A Section: Multi-use Path
Scale: N/A
Recommended Facility Aids
Rectangular Rapid Flash
Beacon (RRFB)
Wecycle Station
Underpass
Proposed Sidewalks
Recommeded Bicycle Facilities
Multi-Use Paved Trail
Unpaved Trail
Existing Conditions Elements
and Destinations
Challenging Trail Segment
Car Share Locations
Wecycle Stations
Transit Stops
Trailheads
Traffic Lights
Schools
Bike Shops
Rectangular Rapid Flash
Beacon
Bicycle/Pedestrian Bridges
Underpass
Vehicular Bridges
Parking Structures
Hospital
Post Office
Grocery
Sidewalks
Pedestrian Deferred Zones
Parallel Parking
Rivers
Ruby Park Transit Center
Pedestrian Mall
Destinations
Parks
Open Space
Water
City of Aspen
LEGEND
B
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P211V.
Aspen Bicycle and Pedestrian Plan – Tech Memo #1 – Summary of Background Documents
Date: June 2, 2015
To: Tyler Christoff, Matt Kuhn
From: Alta Planning + Design
Re: Aspen Bicycle and Pedestrian Plan: Tech Memo #1 - Plan Summary
Overview
The plans and studies reviewed for this project are listed below:
City-Wide Plans and Studies
Aspen Area Community Plan (AACP)
The 2012 AACP is intended to describe a vision for the future of the Aspen Area and an action plan for
achieving community goals and upholding community values. The visions that make up the planned
future for the Aspen Area are to:
Revitalize and sustain the Aspen Idea
Manage growth for community and economic sustainability
Maintain a land use pattern and scenic quality along the West of Castle Creek Corridor
Provide an efficient, multi-modal and integrated transportation system that reduces congestion
and air pollution
Provide a strong and diverse year-round community and a viable and healthy local workforce
Preserve and enhance our enjoyment of and access to parks, recreational opportunities, open
space and trails
Be a local, regional, state and national leader in all aspects of environmental stewardship
Preserve historic resources
Strengthen the quality of life and well-being for all people in our community by promoting
opportunities in housing, jobs and access to services, such as education, public safety and
health through all phases of life
The primary effort of the AACP process was to administer the broadest public feedback effort possible in
order to engage everyone who “lives, works or visits” the Aspen Area in order to gauge the whole of the
community consensus. With the background of referencing five decades of citizen planning, this
document serves as a map for the whole of the Aspen Area Community as it exists within the Aspen
Urban Growth Boundary. While those involved in the development of the plan recognize that that
boundary is limited, efforts are made within the plan itself to recognize that the Aspen Area is part of
the greater Roaring Fork community.
Traffic Count Summary Data
Traffic count summary data was collected from studies conducted by the City of Aspen in the years
2012-2013. Data gathered was used to determine existing conditions and volumes at each intersection.
This information of counts and volumes is used to evaluate what facility type is most appropriate for a
particular location and in turn informs a recommendations report.
Existing ConditionsPlan Summary technical Memo - 1 of 3P212V.
Aging Well in Pitkin County (AWCPI)
This 2014 report, produced by the Aging Well Community Planning Initiative (AWCPI), outlines a broad
approach to providing an ever increasing local senior population with an enhanced quality of life. The
Pitkin County Aging Well Community Planning Initiative’ mission is to develop strategies to build
resources and lead change so that, into the next decade and beyond, Pitkin County achieves its full
potential as a thriving community for aging well. The Initiative will produce a viable, long-term
community-wide plan, including goals, objectives, and action steps to address the needs of a growing
older adult population. The vision of this plan is to ensure that Pitkin County is a thriving community for
aging well.
Below are relevant goals, objectives and action steps from the Pitkin County Aging Well Community
Plan.
Goal 3: Pitkin County will be a safe place for older adults, both in terms of the built environment,
situational safety, financial exploitation, and elder abuse.
Objective 3.1
Identify senior friendly elements that ensure safety of the built environment and are
appropriate for Pitkin County. (Examples include walkways and lighting, longer crosswalk signals,
easy access to buildings, and pedestrian safety on walking/biking paths.)
Action Steps
Implement improvements identified in the West of Maroon Creek Plan regarding safe
access to transportation and senior friendly recreation. (Identify solutions. Create
funding. Develop construction plans. Implement.)
Inventory current recreation areas and groups, e.g., walking, cycling or hiking clubs to
determine upgrades needed to the built environment, i.e., safety, comfort,
attractiveness, proximity to senior population densities, accessibility, and pedestrian
infrastructure such as sidewalks and lighting. Community gardens could also be updated
to include built up garden boxes and wheelchair accessibility. (Conduct surveys. Conduct
inventories.)
Goal 6: Pitkin County older adults will have access to a range of activities and services to support their
wellness. (Wellness options include nutrition, physical fitness and recreation, brain fitness, socialization,
and spirituality.)
OBJECTIVE 6.1 Enhance awareness of the importance of nutrition, exercise, brain fitness,
socialization, and spirituality in the aging well process.
OBJECTIVE 6.4 Identify needs and fill voids for older adults in the areas of recreation and fitness.
Action Steps
Work with ARC and TOSV recreation departments to continue to develop and promote
recreation and fitness programs for older adults.
Identify and publish a list of senior-friendly programs and classes at Pitkin County’s
public and private recreation facilities; utilize all mediums.
Encourage local efforts in rural areas to increase activity opportunities for older adults--
such as Walk and Talk in Redstone.
GOAL 11: Pitkin County Senior Services will be known as a hub for information, activities, programs, and
services promoting health and independence for older adults.
City of Aspen Bicycle Master Plan – 1991
The updated 1991 City of Aspen Bicycle Master Plan route map outlined a proposed network of primary
bikeway routes, secondary bikeway routes and trails. The proposed primary bike routes follow major
roadway corridors and the proposed secondary bike routes connect primary routes to neighborhoods,
destinations and trails. See image for more detailed proposed corridor information.
Aspen Area Community Plan – 2012
The 2012 Aspen Area Community Plan (AACP) is intended to describe a vision for the future of the Aspen
Area that will help guide community decision-making. The purpose of the Aspen Area Community Plan is
to serve as a guide for the future. It is a vision, a map and a plan of action for achieving community
goals. Many parts of the 2012 AACP focus on reaffirming the Aspen Area’s long-held community values,
such as:
• Maintain community character and quality of life
• Preserve open space buffers and scenic views in the West of Castle Creek area.
• Improve and link alternative methods of transportation.
• Continue to acquire parks and open space and improve recreational opportunities. Existing ConditionsPlan Summary technical Memo - 2 of 3P213V.
Transportation Vision: “We are committed to providing an efficient, multi-modal and integrated
transportation system that reduces congestion and air pollution.”
Aspen aims to provide a multimodal transportation network, committed to alternative modes of travel
where the automobile plays a smaller role. Bike and pedestrian policies include the following:
Extend and/or improve commuter pedestrian/bike trails with the greatest potential for
integration with the public transit system.
Expand and improve bicycle parking/storage in the UGB.
Improve the convenience, safety and quality of experience for bicyclists and pedestrians on
streets and trails.
Reduce vehicular trips that are generated by employment, special events, construction activity,
schools, recreation, the service industry, local residents and other activities.
Parks, Recreation, Open Space and Trails Vision “We believe in preserving and enhancing our
enjoyment of and access to parks, recreational opportunities, open space and trails.”
Aspen has made great strides in the acquisition of open space, as well as in the improvement of the trail
system and recreational facilities. Future acquisition of open space should focus on the intrinsic value of
open space, wildlife habitat protection of scenic resources, recreational uses, trail connectivity and
accessibility. Future trail expansion should connect existing trails to improve and maintain easy access to
public lands and provide opportunities for the use of trails by commuters in both summer and winter.
Open Space and Trails polices include the following:
Acquire, improve and develop trail connections throughout the Aspen Area.
Encourage regional trail planning and multi-jurisdictional collaboration.
Increase opportunities for year-round trail commuting.
Continue to promote multi-jurisdictional collaboration for open space acquisition,
acknowledging that open space and trail systems are regional assets that improve the region’s
quality of life
City of Aspen Civic Master Plan - 2006
The City of Aspen Civic Master Plan outlines a need to establish pedestrian routes that are both clearly
visible and inviting to pedestrians. The overall focus is improving pedestrian movement between the
downtown, across Main Street and down to Rio Grande Park and the Roaring Fork River corridor. In
addition to addressing Main Street itself, the Civic Master Plan calls for physical improvements that
would create three visible and inviting pedestrian routes across Main Street to Rio Grande Park and
beyond:
The Obermeyer Place Route
The Galena Plaza Route
The North Mill Street Route.
The Civic Master Plan Advisory Group (CMPAC) found that Main Street itself is “intimidating to
pedestrians and has become a barrier to north-south pedestrian movement.” The CMPAC
recommended that the City of Aspen work with the Colorado Department of Transportation to explore
design changes to Main Street to make it more pedestrian friendly, including but not limited to:
• Stamped/colored concrete x-walks
• Raised x-walks
• Bulb-outs
• Refuge Islands
• Wayfinding
Existing ConditionsPlan Summary technical Memo - 3 of 3P214V.
MEMORANDUM
TO: Mayor and City Council
FROM : Justin Forman, P.E., Senior Project Manager
Matt Kuhn, Parks Operations Manager
Peter Rice, P.E., Civil Engineer II
THRU: Trish Aragon, P.E., City Engineer
Tom Rubel, Director of Parks and Open Space
DATE OF MEMO: September 2nd, 2016
MEETING DATE: September 6th, 2016
RE: Castle Creek/Hallam Street Connectivity Study: Living Lab Experiment and
Hallam Street 30% Design Update
SUMMARY: City staff seeks input and to provide an update to Council regarding the proposed
pedestrian and bicycle improvements for the Castle Creek/Hallam Street Connectivity project. The
goals for the work session include the following:
Review the public input received from the project outreach.
Review the traffic study conducted during the Living Lab Experiment.
Discuss snow removal and bridge railings.
o Decision Point #1: Proceed with design on Castle Creek Bridge with a simplified
outside rail design and analyze options for a seasonal handrail or barricade
between the sidewalk and traffic.
Review the Hallam Street Improvements 30% Submittal
o Decision Point #2: Proceed with Hallam Street design to 60%.
o Decision Point #3: Hire a construction phasing expert.
BACKGROUND: As early as 2013, Open Space and Trails Board members along with
Engineering, Parks, and Transportation staff identified the Castle Creek Bridge and Hallam
Street corridor as a deficient link in Aspen’s bicycle and pedestrian network. Due to
topographic, property, and geometric constraints, safe travel options for cyclists and pedestrians
are limited through this area.
The Castle Creek/Hallam Street Connectivity Study follows the ideals of The AACP. The Plan
states “Aspen’s future should be one in which the automobile plays a smaller role in people’s
everyday lives… (We) should increase the percentage of trips made via alternative modes of
transportation. This can be accomplished by continuing to make….. the pedestrian/bike trail
system more convenient, efficient, accessible, affordable and enjoyable. ….. Our commitment to
alternative modes of transportation helps reduce traffic congestion, improves air quality,
reduces greenhouse gas emissions, promotes public health and reduces our dependence on non –
renewable resources.”
P215
VI.
In the spring of 2014, the City contracted with Loris and Associates in order to develop a
conceptual plan that would improve the corridor. The concept design process included multiple
public meetings to discuss the design and to solicit input on alternatives designs between 7th
Street and the west end of Castle Creek Bridge.
In the July 28, 2015 work session Council recommended separating the bridge railing and
bridge improvement aspects of the project from the remaining Hallam Street corridor
improvements. In the October 27th, 2015 work session, Council further directed staff to
continue planning for the Living Lab Experiment for the bridge section only, and obtain a
special use permit from CDOT.
Final implementation and construction of the Living Lab Experiment was approved by
Council at a January 26, 2016 work session and implemented in April. During this work
session, Council also approved a contract with Loris & Associates to begin the final
design on the Hallam Street Improvements portion of the project.
DISCUSSION:
Living Lab:
Construction of the Living Lab was completed in late April and is planned to remain in place
until October.
Bicycle and Pedestrian usage during Living Lab:
Trail usage was tracked to understand the usage and improvements on the Castle
Creek Bridge.
Usage during the peak hour on the bridge doubled for pedestrian traffic and bicycle
traffic increased by 47%.
33% increase in bicycle usage between 2015 and 2016 (05/01-08/21)
28,337 bicycle trips were made across the Living Lab since May 1st
0
500
1000
1500
2000
2500
3000
3500
May May May May May June June June June July July July July July Aug Aug
Castle Creek Bridge ‐Weekly Bicycle Counts
Bridge Counter 2015 Bridge Counter 2016
P216
VI.
Approximately 4,590 pedestrian trips have been made since May 1st with an
approximate ratio of 6 cyclists to every 1 pedestrian
Living Lab Public Input: A comprehensive public outreach process was implemented
for this project. Outreach included the website www.castlecreekbridge.com, three public
outreach events, and two Saturday farmer’s markets. In addition to verbal feedback we
also received 89 formal surveys on the project. The following are a summary of key
items:
Survey respondents overall felt that the barrier added safety to the bridge. Many
people commented that the 4-foot-wide walk across the bridge was too narrow.
Concerns included the cost of the project, that an underpass under Highway 82 is
already in place that conveys bicyclists into Aspen, that snow removal will be a
challenge and the possibility of creating a negative impact on traffic.
Living Lab Experiment Traffic Study: Fox Tuttle Hernandez Transportation Group
(FTH) conducted two separate traffic studies in June and July to assess the impact the
Living Lab Experiment would have on traffic through the bridge. FTH studied peak
traffic patterns on Castle Creek Bridge for both inbound and outbound traffic. Staff also
recorded vehicle speeds throughout different periods of the summer. The full traffic
report is included as Attachment B. The following is a summary of key items included in
the report:
The daily traffic carrying capacity of the bridge has not been reduced by the lane
narrowing or the adjacent barrier. In 2015, during the week after July 4th, 27,100
vehicles per day were observed crossing the bridge. In 2016, also during the week
after July 4th, 27,500 vehicles per day were observed crossing the bridge.
Implement
85%
Don't Implement
15%
Implement Don't Implement
P217
VI.
Additional traffic did not divert to West Smuggler Street and Power Plant Road. The
sum of the AM and PM peak hour traffic on Power Plant Road was actually slightly
lower in July of 2016 than in July of 2015.
The speed of traffic crossing the bridge did not statistically decrease. The average
speeds remained the same. However, the number of people speeding (ie greater than
30 mph) decreased by 12%.
Snow removal and bridge railing: Following the January work session two important
questions were posed to staff: how the proposed changes to the corridor would impact
snow removal and plowing operations, and what would CDOT require regarding bridge
railing designs?
Engineering, parks, and streets departments collaborated to develop a snow removal
solution that would not impede traffic, not add additional plowing for the bridge, and also
provide enough snow storage space during mid-day snow storms. It was determined that
the barrier separating traffic should be removed in winter to provide as much room as
possible for snow storage on the centerline of the bridge. Removing the barrier in the
winter provides a reduced impact to snow removal while providing a year round widened
pathway. Installing a barrier from April through October provides greater pedestrian
protection during the high-use summer months.
Any significant structural changes to the existing bridge railings will require that the
exterior bridge railing be vehicle crash rated, per conversations with CDOT. Considering
snow removal and removing the barrier as discussed above, staff believes the best option
is to replace the chain link fencing on the exterior railing to a more aesthetic steel mesh
and not proceed further with the cobra style rail system as previously proposed.
27100
27500
26900
27000
27100
27200
27300
27400
27500
27600
2015 2016
Week after July 4th Traffic Volume on Castle
Creek Bridge
P218
VI.
This fall, pending CDOT approval, staff would like to remove the barricade for a period
of one to two weeks in order to test the proposed scenario of an extended path without a
barricade.
P219
VI.
Decision #1: Proceed with the design of the bridge which includes a removable barrier to
accommodate snow removal operations. Staff will present the design during upcoming
community events and at a future Council work session.
Staff recommendation: The Living Lab Experiment has proven to have negligible impacts on
vehicle traffic, greatly improves bicycle and pedestrian connectivity in and out of town, increases
the pedestrian and bicycle use and has an 85 percent approval rating identified in the community
surveys. As stated previously, modifications will need to be made to the final design compared to
the conceptual to adequately address snow storage during winters. The consultants as well as
staff will need to further evaluate alternative handrails or barriers to separate vehicle traffic and
the path.
P220
VI.
30% Hallam Street Improvements Construction Drawings:
Loris & Associates has provided staff with the 30% construction plans, and staff have reviewed
the plans with a number of key stakeholders. The plan set builds from the concept design and
now includes a more thorough analysis of grades, utilities, vegetation, and greater overall detail.
Outbound View of Hallam Street between 7th and 8th Street
Highlights from 30% design stakeholder and public review include:
The lane widths have been modified from the early concept study to provide greater snow
storage space and buffers between lanes.
Staff are working with the Aspen Sopris Ranger District to acquire a special use permit
that will allow the trail to encroach upon their property in order to limit removal of
existing trees.
Proposed landscaped areas within the ROW will be modified based on immediate area
resident comments and CDOT roadway standards.
P221
VI.
Inbound View of Hallam Street at 8th Street Intersection
Looking ahead at the estimated Project Timeline:
Early October - 60% Design
Mid-October - 60% Design Public Outreach
Early December - 90% Design
Mid-December - 90% Design Public Outreach
Mid-January 2017 - Construction Drawings Complete
Late January 2017 - Council Review
April 2017 - Construction (Pending Budget Approvals)
Decision #2 is the approval to proceed to the 60% design level. Staff will continue to meet with
stakeholders and hold public outreach events to provide input and feedback on the design.
Decision #3 is for the approval for staff to hire a construction phasing expert to facilitate a plan
that will minimize impacts on the community and vehicle traffic during project construction. The
phasing expert will indicate an acceptable and practical method of how the drainage, roadway
and bridge construction can take place with minimal disruption to vehicular, transit, pedestrian
and bicycle traffic.
P222
VI.
FINANCIAL IMPLICATIONS: There are no financial implications for Council to make a
decision on at this time. With the above approval of Decision #3, there will be a change order to
Loris & Associates for the construction phasing expert. Loris and Associates has provided an
estimate for this added service which is approximately $20,000.
CITY MANAGER COMMENTS:
Attachment A - Hallam Street Improvements 30 percent Design Drawings
Attachment B – FTH Traffic Study Analysis
P223
VI.
Know what's below.R Call before you dig.CITY OF ASPENENGINEERING DIVISIONHALLAM STREET RECONSTRUCTIONPROJECT NO. 138-14103ASPEN, COSECTION 12, TOWNSHIP 10 SOUTH, RANGE 85 WESTP224VI.
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STANDARD GREY CONCRETESIDEWALK 10' WIDTH; CONTROLJOINTS EVERY 10' MIN.CITY OF ASPEN STANDARDTRUNCATED DOME TYP.RAISED CROSSWALK CROSSWALKSIMILAR TO NEALE AVENUERAISED CROSSWALK CROSSWALKSIMILAR TO NEALE AVENUEEXISTING BRICK RED CONCRETEWITH HAND TOOLED JOINTSPERMEABLE PAVER BRICKS TOMATCH EXISTING PERMEABLEPAVERS AT RFTA BRT STATIONS34" EXPOSED AGGREGATESTANDARD GRAY CONCRETEWITH 5' JOINTSCITY OF ASPEN/RFTASTANDARD BUS SHELTERCITY OF ASPEN STANDARDTRASH AND RECYCLINGRECEPTACLESBIKE RACKS TO MATCHEXISTING BIKE RACKS ATRUBEY PARKEXISTING BIORETENTION BEDSKI RACKS TO MATCHRUBEY PARKCITY OF ASPEN STANDARD RAMP TYP.STANDARD GREY CONCRETESIDEWALK 5' WIDTH; CONTROL JOINTSEVERY 10' MIN.COTTONWOOD TREE PLANTING 30'O.C. WITH SOD UNDERSTORY; RE:SHEET L4.0REMOVABLE/COLLAPSABLE BOLLARD30% SUBMITTALJULY 27, 20166001 OF 4CPSCPSMATERIALS1" =25'Hallam-Sheets.dwgJuly 27, 2016HALLAM STREET - CASTLE CREEK BRIDGE TO 7TH ST.P257VI.
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AREA 1-PROVIDE SLEEVING UNDER NEW SIDEWALKFROM VALVE BOX. RE-USE EXISTING ZONETHAT IRRIGATED PREVIOUS LANDSCAPEDSTRIP. RE-USE HEADS IN THE NEWLANDSCAPED AREA.AREA 2-PROVIDE NEW SLEEVE UNDER WIDENEDSIDEWALK. RE-USE EXISTING ZONE IF PSI +GPM ALLOW FOR THE BERM. NEW HEADSAND DRIP IRRIGATION TO EXISTING TREESAS IRRIGATION IN THIS ZONE HAS NOT BEENACTIVATED THIS YEAR.AREA 3-USE EXISTING ZONE AND HEAD BY CORNEROF CRIB WALL AND REPLACE NOZZLE. ADDONE MORE HEAD TO ZONE IF PSI + GPMPERMIT FOR DOUBLE COVERAGE- RADIUSNEED ONLY BE 10' MAX.AREA 1AREA 3AREA 2NEW HEAD30% SUBMITTALJULY 27, 2016Xref C:\Users\Christine Shine\Dropbox (Connect One Design)\C1D SERVER\C1D PROJECTS\253-Hallam Street Corridor\CAD\SD\Source Data Xref\00000-new (CDOT) Att.dwg6023 OF 4CPSCPSIRRIGATION1" =25'Hallam-Sheets.dwgJuly 27, 2016HALLAM STREET - CASTLE CREEK BRIDGE TO 7TH ST.P259VI.
PER PLAN104" CAL.POPULUS ANGUSTIFOLIA'CREEKSIDE'PaCNARROWLEAFCOTTONWOODLEGENDSPACINGABBR.QUANTITYSIZEBOTANICAL NAMECOMMON NAMESYMBOL2096 sfSOD318 sfPART SUN/PART SHADE PERENNIAL MIX2882 sfSHADE PERENNIAL MIX682 sfFULL SUN PERENNIAL MIX (ISLAND);TBD BY THE CITY OF ASPEN PARKS DEPARTMENTPER PLAN7MIN 6'VIBURNUM LENTAGOVLNANNYBERRY VIBURNUMPER PLANPER PLANPER PLANPER PLAN30% SUBMITTALJULY 27, 2016Xref C:\Users\Christine Shine\Dropbox (Connect One Design)\C1D SERVER\C1D PROJECTS\253-Hallam Street Corridor\CAD\SD\Source Data Xref\00000-new (CDOT) Att.dwg6034 OF 4CPSCPSPLANTING1" =25'Hallam-Sheets.dwgJuly 27, 2016HALLAM STREET - CASTLE CREEK BRIDGE TO 7TH ST.P260VI.
P.O. BOX 19768, BOULDER, COLORADO 80308-2768
PHONE: 303.652.3571 | WWW.FOXTUTTLE.COM
MEMORANDUM
To: Justin Forman
From: Bill Fox
Date: September 1, 2016
Project: Hallam Street/Castle Creek Bridge Living Lab Traffic Study
Subject: Summary of Before and After Traffic Conditions
In 2015 the Fox Tuttle Hernandez Transportation Group was retained by the City of Aspen to
complete a feasibility analysis of traffic for the proposed improvements identified in the 2014
Castle Creek/Hallam Street Connectivity Study prepared by Loris and Associates. The Loris
Connectivity Study identified a set of near term multi‐modal improvements along State Highway
82 between Cemetery Lane and 7th Street along this entrance to Aspen. Fox Tuttle Hernandez
(FTH) concluded that the proposed multi‐modal
improvements were indeed feasible, and would be
a benefit to bicyclists and pedestrians in the area
without compromising automobile travel. [the FTH
analysis and findings are included in a technical
report dated January 21, 016].
The cornerstone of the Loris Connectivity Study was
the recommendation to narrow the lanes on the
Castle Creek Bridge to provide width to allow the
widening of the north sidewalk and converting it to
a barrier protected multi‐use path. City Council
directed staff to design and implement a test of the
proposed modifications to the Castle Creek Bridge
during the spring and summer of 2016. Staff
worked with Loris and CDOT to design and
implement the test, which was then installed in
April of this year. The test cross‐section on the
bridge resulted in narrowing the travel lanes from
12 feet wide to 11 feet wide, and the shoulders
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Hallam Street/Castle Creek Bridge Living Lab Traffic Study
Summary of Before and After Traffic Conditions
September 2, 2016 Page 2
were narrowed from 3 feet to 2 feet in width. This narrowing of the roadway then allowed room
to widen the north sidewalk and install a temporary barrier to separate it from the travel lanes.
The widened and protected sidewalk then effectively became a multi‐use path across the bridge
to serve bicyclists and pedestrians. Photo 1 illustrates the completed experimental cross‐section
with a bicyclist crossing the bridge.
The most significant concern expressed by citizens and the City Council before the test was that
the narrowing of the automobile lanes and the presence of the adjacent barrier might significantly
reduce the capacity of the bridge to carry automobile traffic or significantly slow the already
congested traffic flow across the bridge. An additional related concern was that the changes on
the bridge might result in more traffic diverting to West Smuggler Street and Power Plant Road
through adjacent neighborhoods to access the City of Aspen.
To address these concerns and allow an evaluation of the Living Lab Test, FTH was asked to
recollect the multi‐modal traffic data that was collected in the Before condition during July of
2015, with After observations during June and again in July of 2016.
In this context, this memorandum summarizes the information compiled before and after the
implementation of the temporary multi‐use path and lane narrowing on the Castle Creek Bridge.
Executive Summary:
The quick summary of findings of the Living Lab test on the Castle Creek Bridge is that none of the
major concerns about the project that were listed above actually materialized or proved to be
warranted.
The daily traffic carrying capacity of the bridge has not been reduced by the lane narrowing
or the adjacent barrier. In 2015, during the week after July 4th, 27,100 vehicles per day
were observed crossing the bridge. In 2016, also during the week after July 4th, 27,500
vehicles per day were observed crossing the bridge.
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Hallam Street/Castle Creek Bridge Living Lab Traffic Study
Summary of Before and After Traffic Conditions
September 2, 2016 Page 3
Additional traffic did not divert to West Smuggler Street and Power Plant Road. The sum
of the AM and PM peak hour traffic on Power Plant Road was actually slightly lower in July
of 2016 than in July of 2015.
The speed of traffic crossing the bridge did not statistically decrease such that it would
cause diversion or reduce the automobile carrying capacity of the bridge. The average
speeds remained the same. The free flow speed of traffic (defined in this case as the 85th
percentile speed measured during uncongested conditions between 7:00 PM and 7:00
AM) remained approximately the same as well. A positive effect that was noted is that
there was a 12% reduction in motorists exceeding 30 miles per hour during these off peak
times after the lanes were narrowed and the barrier was installed.
In addition, the volume of pedestrian and bicycle traffic crossing the bridge increased when
comparing the AM and PM peak hour counts from July 2015 to July 2016. In this one day sample,
pedestrian traffic more than doubled, while bicycle traffic increased by 47%.
On this basis I would consider the Castle Creek Bridge Living Lab Experiment a success, and
recommend the permanent installation of these improvements.
More detailed observations and findings are summarized by topic as follows:
Comparison of Multi‐modal Traffic Data
The multi‐modal traffic data collected during the week after July 4th in 2015 are illustrated in
Figures 1 – 3. The same data (with a focus on the Castle Creek Bridge area) was recollected in
early June and again in early July of 2016. The multi‐modal data from 2016 is illustrated in Figures
4 – 9. This data includes:
24‐hour automobile traffic counts with volume and speed data on Hallam Street (SH 82)
between the Castle Creek Bridge and 8th Street
AM and PM peak hour counts, including automobile, bicycle, pedestrian and bus traffic at
the following three intersections:
‐ Cemetery Lane/SH 82
‐ Hallam Street/8th Street
‐ West Smuggler Street/8th Street
Bicycle and pedestrian counts on the trails just southwest of the Castle Creek bridge
Bicycle, pedestrian and bus transit counts on the Castle Creek bridge.
The following tables compare the 2015 and 2016 traffic counts.
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Hallam Street/Castle Creek Bridge Living Lab Traffic Study
Summary of Before and After Traffic Conditions
September 2, 2016 Page 4
It can be seen in Table 1 and the following chart that the peak July traffic crossing the Castle Creek
Bridge did not decrease with the narrowing of the travel lanes and the addition of the barrier
separating the autos from the multi‐use path during the experiment. As expected, the narrowing
of the lanes from 13 feet to 11 feet did not reduce the capacity of the roadway on the bridge. In
fact, Photos 2 through 6 illustrate how easily the narrowed lanes accommodate the large vehicles
that regularly cross the bridge in mixed traffic.
Table 1. Daily Traffic Volume Comparison on Bridge – (cars per day)
Date of Count Eastbound Traffic Westbound Traffic Total Daily Traffic
July 2015 13,500 13,600 27,100
June 2016 12,700 11,700 24,400
July 2016 14,300 13,200 27,500
The traffic counts summarized below in Table 2 track the traffic using Power Plant Road during
the inbound and outbound peak hours of the day, when some motorists try and bypass congestion
on CO 82 when accessing the City of Aspen. This data illustrates that the traffic on Power Plant
Road did not go up during the Living Lab experiment. This indicates that reducing the lane widths
and adding the barrier on the bridge did not result in increased diversion through the adjacent
neighborhood.
Table 2. Peak Hour Traffic On Power Plant Road – (vehicles per hour)
AM (vph) PM (vph)
Date of Count Eastbound Westbound Eastbound Westbound Total (vph)
July 2015 116 15 39 545 715
June 2016 126 9 23 461 619
July 2016 164 12 39 513 728
Traffic speed on Hallam Street just east of the bridge was also measure in the Before and After
conditions to see if speeds were significantly reduced during the experiment. The results are
summarized in Table 3. When reviewing this data one should recall the previous FTH report that
highlighted the fact that CO 82 in this area carries one of the highest daily traffic volumes on a 2‐
lane road in Colorado, and is at or near its capacity. This is illustrated by the fact that the average
speed is at least 5 miles below the speed limit. In this context, the speed of traffic likely has more
to do with the traffic volume and adjacent intersections along the corridor and the congestion
they cause rather than the lane widths on the Castle Creek bridge. That said, the traffic speeds
measured this July were only slightly less than those measured last July.
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Hallam Street/Castle Creek Bridge Living Lab Traffic Study
Summary of Before and After Traffic Conditions
September 2, 2016 Page 5
Table 3. Daily Traffic Speed Comparison – Just East of Bridge
Eastbound (mph) Westbound (mph) Combined (mph)
Date of Count Average 85% Average 85% Average 85%
July 2015 20 24 20 26 20 25
June 2016 21 25 19 24 20 24.5
July 2016 19 23 20 24 19.5 23.5
The volume of bicyclists and pedestrians crossing the bridge during the AM and PM peak hours
was compared for each data collection period (see Table 4). While the sample size is small, it does
appear that more pedestrians and bicyclists are crossing the bridge (July 2015 v. July 2016) with
the protected multi‐use path in place.
Table 4. Bicycles and Pedestrians Crossing the Bridge During AM and PM Peak Hours
Pedestrians Bicyclists Total
Date of Count/Time AM PM AM PM AM PM Total AM+PM
July 2015 14 2 33 24 47 26 73
June 2016 8 6 17 22 25 28 53
July 2016 21 15 39 45 60 60 120
A final comparison made in the Before and After condition was the volume of RFTA buses crossing
the Castle Creek Bridge during the AM and PM peak hours of the day. This comparison was made
to see if the lane narrowing on the bridge was compromising the ability of RFTA buses to make
their scheduled runs. Again, comparing July to July, it appears that as many buses crossed the
bridge during the experiment as before. It is not clear why June counts were lower unless there
were less buses in use at the time.
Table 5. AM and PM Peak Hour RFTA Bus Traffic on the Castle Creek Bridge
AM Buses PM Buses Total
Date Eastbound Westbound Total Eastbound Westbound Total
July 2015 22 17 39 17 21 38 77
June 2016 19 15 34 15 18 33 67
July 2016 21 17 38 19 22 41 79
I hope this technical memorandum summarizing the Before and After data collected in relation to
the Living Lab experiment on the Castle Creek Bridge is helpful. I believe it can be concluded that:
The narrower lanes and barrier on the bridge has not reduced the amount of traffic that
can cross the bridge during the peak July traffic season;
The experiment has not resulted in increased traffic diversion onto Power Plant Road and
through the adjacent neighborhoods;
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Hallam Street/Castle Creek Bridge Living Lab Traffic Study
Summary of Before and After Traffic Conditions
September 2, 2016 Page 6
More pedestrians and bicyclists appear to be crossing the bridge during the peak July
season with the protected multi‐use path in place;
The experiment has not caused a statistical reduction in traffic speed along Hallam Street
during the congested portion of the day;
Large trucks and buses are easily accommodated by the 11 foot wide lanes with 2 foot
wide shoulders that have been implemented during the experiment.
As a result, I support the permanent installation of the proposed multi‐use path across the Castle
Creek Bridge.
Please let me know if you have any questions.
WCF/
Attachments: Before and After Traffic Photographs
Multi‐modal traffic count Figures 1 – 9
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Hallam Street/Castle Creek Bridge Living Lab Traffic Study
Summary of Before and After Traffic Conditions
September 2, 2016 Page 7
Photos of the Castle Creek Bridge with the Living Lab Experiment In Place:
Photo 1 Westbound bicyclist on new protected multi‐use path
Photo 2 Mixed traffic with a westbound bus
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Hallam Street/Castle Creek Bridge Living Lab Traffic Study
Summary of Before and After Traffic Conditions
September 2, 2016 Page 8
Photo 3 Mixed traffic with a westbound truck
Photo 4 Mixed Traffic with a westbound bus
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Summary of Before and After Traffic Conditions
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Photo 5 Westbound tractor‐trailer truck
Photo 6 Eastbound bus
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FT Project # Original Scale Date Drawn by Figure #opurTranspor GnoittaSH 82 MULTI-USE PATH EVALUATION2015 EXISTING VEHICLE AND BUS VOLUMES15019 NTS 7/16/15 CRS 1
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FT Project #Original Scale Date Drawn by Figure #
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FT Project #Original Scale Date Drawn by Figure #
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