HomeMy WebLinkAboutagenda.council.regular.20170724
CITY COUNCIL AGENDA
July 24, 2017
5:00 PM
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues
NOT scheduled for a public hearing. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters may be adopted together by a single motion)
a) Resolution #100, Series of 2017 - Contract to purchase Backhoe/loader for the
Water Department
b) Resolution #104, Series of 2017 - Aspen Housing Partners Development
Agreement
c) ARC Board Appointment
d) Minutes - July 10, 2017
VII. Notice of Call-Up
a) Notification for 60-Day Call-Up of approval of APCHA Board Resolution No. 02
(Series of 2017), Adopting Amendments to Part II, Sections 5, 6 and 7, and
Adding Appendix L to the Aspen/Pitkin Employee Housing Guidelines pertaining
to Categories 1-7 Income Limits and Use of Area Median Income (AMI)
b) Notice of HPC approval of Demolition, Minor Development, Commercial Design
Review, and Setback Variations for 201 E. Main Street, HPC Resolution #13,
Series of 2017
VIII. First Reading of Ordinances
IX. Public Hearings
a) Ordinance #20, Series of 2017 - Harassing Dog Code Amendment
X. Action Items
*Meeting will be continued until after Work Session for consideration of last
agenda item.*
XI. Executive Session
a) C.R.S. Section 24-6-402(4)(b) and (e)(I): Conference with attorneys and determining positions
relative to matters that may be subject to negotiations; developing strategy for negotiations and
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instructing negotiators regarding pending litigation, Castle and Maroon Creek diligence cases and
Ruedi Augmentation Plan/Queen Street Well.
XII. Adjournment
Next Regular Meeting August 14, 2017
COUNCIL’S ADOPTED GUIDELINES
· Make Decisions Based on 30 Year Vision
· Tone and Tenor Matter
· Remember Where We’re Living and Why We’re Here
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
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MEMORANDUM
TO: Mayor and City Council
FROM: Jerry Nye, Superintendent of Streets
THRU: Scott Miller, Public Works Director
DATE: 7/24/2017
RE: Contract Approval Resolution #100 Series 2017 for the purchase of a Caterpillar
4x4 Backhoe/Loader for the Water Department
REQUEST OF COUNCIL: Staff recommends the approval of Resolution # 100 Series 2017,
contract for the fleet replacement purchase of a Caterpillar 4x4 Backhoe/Loader for the Water
Department.
PREVIOUS COUNCIL ACTION: The purchase was anticipated and included in the 2017
Asset Management Plan. City Council approved the Asset Management Plan as part of the 2017
Budget.
BACKGROUND: Staff contracted with Wagner Equipment Company using the National Joint
Powers Alliance (NJPA) cooperative purchase agreement to purchase the new equipment. The
contract price reflects the trade in of our old backhoe/loader.
DISCUSSION: The Water Department currently has a 1994 John Deere model 710
backhoe/loader for clearing out waterways, head gate work, ditch cleaning, loading and
unloading equipment and supplies, plowing and removing snow from the water campus. The
John Deere was not replaced on the usual ten-year replacement plan because it was still very
dependable and did not require significant maintenance at that time. However, at its current age,
staff anticipates high maintenance costs, frequent breakdown and significant loss of reliability.
The new Caterpillar 430 backhoe/loader is smaller in size, more versatile and economical to
operate. Staff expects it to have a minimum ten-year lifespan and will evaluate replacement at the
end of the ten years.
FINANCIAL/BUDGET IMPACTS: The Water Department has budgeted $155,000 in the
2017 AMP for this expenditure. Cost for the new Caterpillar is:
Caterpillar 430 Backhoe/Loader $120,900.00
Less Trade-in of the John Deere -$17,220.00
Total contract price $103,680.00
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ENVIRONMENTAL IMPACTS: The Caterpillar 430 is equipped with a turbo charged, direct
injection diesel engine that is compliant with EPA Tier 4 emission standards. It is equipped with
an Economy mode that allows the machine to run at lower engine speeds and has load sensing
hydraulics to ensure the machine is running at proper engine speed for the work performed.
Sustainability initiative? Yes
Outcome area affected: Air Quality
Key metrics affected: Reduction in particulate matter and ozone pollution from vehicle
emissions.
RECOMMENDED ACTION: Staff recommends the contract approval for the purchase of the
Caterpillar 430F2 4x4 Backhoe Loader for the Water Department.
ALTERNATIVES:
PROPOSED MOTION:
“I move to approve Resolution # 100 Series of 2017 on the consent calendar of Monday July 24,
2017
CITY MANAGER COMMENTS:
ATTACHMENTS:
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RESOLUTION # 100
(Series of 2017)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND WAGNER EQUIPMENT COMPANY INC. AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for a
Caterpillar Backhoe Loader, between the City of Aspen and Wagner Equipment
Company Inc., a true and accurate copy of which is attached hereto as Exhibit
“A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for a Caterpillar Backhoe Loader, between the City of Aspen and Wagner
Equipment Company Inc., 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 24th day of July, 2017.
Steven Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held July 24, 2017.
Linda Manning, City Clerk
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CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
City of Aspen Project No.: 2017-086.
AGREEMENT made as of 24th day of July, in the year 2017.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Fleet
130 South Galena Street
Aspen, Colorado 81611
Phone: (970) 920-5055
And the Vendor:
Wagner Equipment Company
c/o ___________________________________
PO Box 14620
Denver, CO 80217
Phone: 303-561-0451
Summary Description of Items to be Purchased:
Caterpillar Model 430F2 HRC Backhoe Loader
____________________________________________________________________________
Exhibits appended and made a part of this Agreement:
If this Agreement requires the City to pay
an amount of money in excess of
$25,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date: July 24, 2017
Resolution No.:___________________
Exhibit A: List of supplies, equipment, or materials to be purchased.
Total: $103,680.00
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The City and Vendor agree as set forth below.
1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB 1080 Power Plant Road, Aspen, CO 81611.) [Delivery Address]
3. Contract Documents. This Agreement shall include all Contract Documents as the
same are listed in the Invitation to Bid and said Contract Document are hereby made a part of
this Agreement as if fully set out at length herein.
4. Warranties. (12 Months Unlimited Hours, Parts and Labor (Travel Time included for
the first 6 months).
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be construed, or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney’s Fees. In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney’s fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
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11. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(A) Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B) Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C) Vendor represents that no official, officer, employee or representative of the City during
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D) In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by the City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience.
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14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
15. City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City
Council of the City of Aspen.
16. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap,
or religion shall be made in the employment of persons to perform under this Agreement.
Vendor agrees to meet all of the requirements of City’s municipal code, section 13-98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
17. Integration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
19. Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
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IN
to
ITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
duly executed the day and year first herein written in three i3) copies, all of which, to all
and purposes, shall be considered as the original.
THE CITY OF ASPEN:
City Manager
UIPMENT COMPANY
By:
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EXHIBIT A SUPPLY PROCUREMENT AGREEMENT
2017 CATERPILLAR Model: 430F2 HRC Backhoe Loader
STANDARD EQUIPMENT
BOOMS, STICKS AND LINKAGES - 15' Center pivot excavator style - backhoe - Pilot operated joystick
hydraulic - controls with pattern changer valve - Pilot operated stabilizer controls - Boom transport lock - Swing
transport lock -
OTHER STANDARD EQUIPMENT - Backhoe Safety Manual - Operations and Maintenance Manual - Lockable hood
- Tire Valve
Stem Protection - Long Life Coolant -30C (-20F) - Padlocks (2 on ST, 3 on IT)
BOOMS, STICKS AND LINKAGES - Street pads stabilizer shoes - Anti-drift hydraulics - (Boom, Stick and E-Stick)
- Cat Cushion Swing(tm) system - Bucket level indicator - Lift cylinder brace - Return-to-dig (auto bucket positioner) -
Self-leveling loader with single lever - control - Transmission neutralizer switch - Single Tilt Loader -
POWERTRAIN - Cat C4.4, 86kW (Net 108 HP/81kW) - Direct Injection Turbo Charged Engine, - with ACERT
technology. - US EPA Tier4 Final Emissions Compliant - with Selective Catalytic Reduction(SCR) - Water separator
with service indicator - Thermal starting aid system - Eco mode - A dry-type axial seal air cleaner with - integral
precleaner, automatic dust - ejection system & filter condition
- indicator - Hydraulically boosted multi-plate wet - disk brake with dual pedals & interlock - Differential lock - Drive-
line parking brake
OPERATOR ENVIRONMENT - Interior rearview mirror - Rear fenders - ROPS canopy - 2-inch retractable seat belt
- Tilt steering column - Steering knob - Hand and foot throttle - Automatic Engine Speed Control - One Touch Low
Idle - Floor mat and Coat Strap - Lockable storage area - Air suspension seat
OTHER STANDARD EQUIPMENT - Hydrostatic power steering - Standard Storage Box - Transport tie-downs -
Ground line fill fuel tank with 44 - gallon capacity - Ground line fill diesel exhaust fluid - tank with 5 gallon capacity
- Rubber impact strips on radiator guards - Bumper - CD-ROM Parts Manual
POWERTRAIN - High Ambient Cooling Package - Torque converter - Transmission--four speed synchro mesh - with
power shuttle &
neutral safety - switch - Spin-on fuel, engine oil & transmission - oil filters - Outboard planetary rear axles - Open
Circuit Breather -
HYDRAULICS - Load sensing, variable flow system - with 43 gpm axial piston pump - 6 micron hydraulic filter -
O-ring face seal hydraulic fittings - Caterpillar XT-3 hose - Hydraulic oil cooler - Pilot control shutoff switch -
PPPC, Flow-sharing hydraulic valves - Hydraulic suction strainer -
ELECTRICAL - 12 volt electrical start - 150 ampere alternator - Horn and Backup Alarm - Hazard flashers/turn
signals - Halogen head lights (4) - Halogen rear flood lights (4) - Stop and tail lights - Audible system fault alarm -
Key start/stop system - 880 CCA maintenance free battery - Battery disconnect switch - External/internal power
receptacles(12v) - Diagnostic ports for engine and machine - Electronic Control Modules - Remote jump start
connector -
OPERATOR ENVIRONMENT - Lighted gauge group -
MACHINE SPECIFICATIONS
430F2 BACKHOE
LOADER FORK TINE, 2''
X 5'' X 54'' BELT, SEAT, 2''
SUSPENSION
BUCKET-HD ROCK, 24'', 7.0 CFT
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BUCKET-GP, 1.5 YD3, IT
COUNTERWEIGHT, 1015 LBS
GUARD, STABILIZER
TIRES, 12.5 80/19.5L-24, FS
RADIO & CD PLAYER,
BLUETOOTH RIDE CONTROL
COLD WEATHER PACKAGE, 120V HRC
SEAT, DELUXE FABRIC
COUPLER, PG, MANUAL, DUAL LOCK
PRODUCT LINK, CELLULAR, PL641I
HYDRAULICS, MP, 6FCN/8BNK, IT
PT, 4WD, AUTOSHIFT
CAB, DELUXE
AIR CONDITIONER, T4
STICK, EXTENDABLE, 16FT
ENGINE, 86KW, C4.4 ACERT,
T4F WORKLIGHTS (8)
HALOGEN LAMPS
CARRIAGE, FORK
CUTTING EDGE, TWO PIECE,WIDE
STABILIZER PADS, FLIP-OVER
Wheel Spacers
SELL PRICE $120,900.00
LESS GROSS TRADE ALLOWANCE ($17,220.00)
TOTAL $103,680.00
TRADE-INS
Model
Make Serial Number Year Trade
Allowance
710D JOHN DEERE (JD) 802326 1994 $17,220.00
WARRANTY & COVERAGE
12 months Unlimited Hours, Parts and Labor (Travel Time included for the first 6 months)
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MEMORANDUM
TO: Mayor and City Council
FROM: Chris Everson, Affordable Housing Project Manager
THRU: Barry Crook, Assistant City Manager
DATE OF MEMO: July 17, 2017
MEETING DATE: July 24, 2017
RE: Resolution #104, Series of 2017, Aspen Housing Partners (AHP)
Development Agreement
Note: This memo has been revised since its initial submittal.
REQUEST OF COUNCIL: Staff is requesting approval of Development Agreement with Aspen
Housing Partners (AHP).
BACKGROUND: During the summer of 2015, staff performed community outreach for potential
development of affordable housing at City-owned properties located at 517 Park Circle, 802 West
Main Street and 488 Castle Creek Road. Council subsequently directed staff to issue City of Aspen
RFP # 2015-139 “Public Private Partnership Affordable Housing Development ”. At a work session
on November 1, 2016, Council verified selection of Aspen Housing Partners (AHP) as the selected
developer.
PREVIOUS COUNCIL ACTION: On November 14, 2016, Council approved Resolution #165
of 2016 “Summary of Agreement Terms for Affordable Housing Development between the City
of Aspen and Aspen Housing Partners”.
DISCUSSION: Since November 2016, and in close partnership with staff, AHP has performed
extensive community outreach and has participated in numerous City Council work sessions and
has received approval from City Council to submit development applications for the properties
mentioned above. During that time, AHP has performed significant due diligence and has invested
approximately $375,000 in the planning and design process. During the same time, the City of
Aspen has made no notable funding contributions to these projects. The City purchased the
properties mentioned above in 2008 for $13.2 million.
Thus far, AHP has submitted a development application for 517 Park Circle and is planning to
submit development applications within the next few weeks for 802 West Main Street and 488
Castle Creek Road. The attached Development Agreement is an expansion of the previously
adopted Summary of Agreement Terms and has been approved for submittal to Council by the
City Attorney, although the City attorney wishes to reserve the right to make minor, insignificant
revisions to the form of the agreement and exhibits as needed for finalization.
SCHEDULE: As per the agreement, the project anticipates the use of low income housing tax
credit (LIHTC) financing. Applications for tax credit funding can be submitted only after the re-
zoning entitlements processes are complete for all three properties – which are anticipated to occur
throughout the remaining months of 2017 and potentially into 2018.
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The attached agreement contains a schedule exhibit which suggests construction start in mid-2018
with potential tenants moving into the facilities in mid -2019. Given the unknowns in the
entitlements process and the tax credit application process, this may be optimistic .
FINANCIAL/BUDGET IMPACTS: Council has approved $600,000 from the 150 Housing
Development Fund in budget authority for 2017. While AHP continues to fund the development,
staff will maintain the approved public funding and will request additional budget authority for
2018 to be commensurate with the needs of the project going forward.
The attached Development Agreement includes a budget exhibit which shows an updated
development cost and the City of Aspen’s potential contribution to the development under the
three different scenarios, including the use of 9% Federal tax credits, 4% Federal plus State Tax
Credits and 4% Federal Tax Credits only. Only the 4% Federal scenario is non-competitive thus
staff seeks to remain open to all three scenarios until such a time when we can submit and
potentially be awarded such tax credits. A summary of the potential City funding is included below
for each of the three tax credit scenarios and includes history since originally proposed.
Estimated City of Aspen
Funding Contribution
$2017 (% of total)
9% Federal Tax
Credits
4% Federal
+ State Tax
Credits
4% Federal Tax
Credits Only
Development
Cost Estimate
(Land Not Included)
June 2016 - AHP Proposal
48 Units with (39) Tax Credit Units
+ (4) Cat3 Units + (5) Cat4 Units
$6.9 Million
(29%)
$8.6 Million
(36%)
$11.6 Million
(48%) $24 Million
* December 2016 - Community Outreach
48 Units with (23) Tax Credit Units
+ (14) Cat2 Units + (8) Cat3 Units
+ (3) Cat4 Units
$8.3 Million
(35%)
$13.8 Million
(58%)
$15.7 Million
(65%) $24 Million
† July 2017 - Development Agreement
49 Units with (24) Tax Credit Units
+ (14) Cat2 Units + (9) Cat3 Units
+ (2) Cat4 Units
$9.9 Million
(39%)
$14.9 Million
(58%)
$17.0 Million
(66%) $25.7 Million
Notes:
* Increases from June 2016 to December 2016 are attributable to changes to the income levels to
be served. The proposal evaluation committee was aware that the income mix would need to be
modified, and this was the case for all proposals which were received, not only for AHP. This did
not increase the developer’s fee, and the AHP team was very flexible about the mix and knew that
the City would need to decide on a final income mix. The income mix changes from June to
December were a collaboration among City and Housing Authority staff and was arrived at by
balancing tax credit proceeds while also providing some units as needed at higher income levels .
Non-tax-credit units are not eligible for tax credit funding, therefore the City’s contribution
increased to serve these income levels under the APCHA Guide lines. This income mix was vetted
during the community outreach process and was included in materials provided for City Council
work sessions.
† Increases from December 2016 to July 2017 are attributable to project cost increases due to
changes which occurred during the community outreach process and related City Council work
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sessions. Underground storage was added at 802 West Main Street. Larger storage closets were
added at Park Circle and Castle Creek. Additional parking was added as prescribed by Counc il.
One additional unit was added. A second bathroom was added to all 2-bedroom units. Some
additional contingency was added for site work and utilities as a precautionary measure. Some
variation among the scenarios is also due to fluctuating tax credit va lues which may continue over
time. Estimates are subject to change in the future.
RECOMMENDED ACTION: Staff recommends approval.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Exhibit A: Master Development Agreement between the City of Aspen and Aspen Housing
Partners
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RESOLUTION NO. 104
Series of 2017
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A PROPOSED MASTER DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF ASPEN, COLORADO AND ASPEN HOUSING PARTNERS, LLC, AND
AUTHORIZING THE CITY MANAGER TO EXECUTE A FINAL AGREEMENT ON BEHALF
OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a proposed Master Development
Agreement by and between the City Of Aspen, Colorado and Aspen Housing Partners, LLC, a copy
of which draft agreement is attached hereto.
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby approves the entry into a Master
Development Agreement by and between the City Of Aspen, Colorado and Aspen Housing Partners,
LLC, a copy of which draft agreement is attached hereto and does hereby authorize the City Manager
of the City of Aspen to execute a final agreement on behalf of the City of Aspen in substantially the
form attached hereto, subject to the approval of the City Manager and the City Attorney.
Dated _________________, 2017.
_____________________________
Steve Skadron, Mayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the foregoing is a true
and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a
meeting held July 24, 2017.
______________________________
Linda Manning, City Clerk
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AHP Revised Draft
07.19.17
MASTER DEVELOPMENT AGREEMENT
by and between
CITY OF ASPEN, COLORADO
and
ASPEN HOUSING PARTNERS, LLC
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AHP Revised Draft
07.18.17
i
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS 1
ARTICLE II. ENGAGEMENT; DEVELOPMENT PLAN, SCHEDULE AND BUDGET 5
2.1 Basic Intent ................................................................................................................5
2.2 Designation and Engagement of Developer ................................................................6
2.3 Development Plan ......................................................................................................6
2.4 Project Schedule.........................................................................................................7
2.5 Project Budget ...........................................................................................................7
2.6 Status Reports and Information ..................................................................................7
ARTICLE III. DEVELOPER SERVICES AND DEVELOPER FEE 8
3.1 Developer Services ....................................................................................................8
3.2 Funding of Development Services ..............................................................................9
3.3 Developer Fee ............................................................................................................9
3.4 Contractors and Consultants .......................................................................................9
3.5 Cooperation and Approval Standards .........................................................................9
3.6 Communications ...................................................................................................... 10
ARTICLE IV. DUE DILIGENCE MATTERS 10
4.1 Title Insurance Commitments................................................................................... 10
4.2 Surveys .................................................................................................................... 10
4.3 Access to the Property and Other Investigations ....................................................... 11
4.4 Special Terms Regarding Environmental Conditions ................................................ 11
4.5 Removal of Site, Generally ...................................................................................... 12
ARTICLE V. ENTITLEMENT/FEASIBILITY PERIOD 13
5.1 Entitlement / Feasibility Period, Generally ............................................................... 13
5.2 Design...................................................................................................................... 13
5.3 Public Outreach Process ........................................................................................... 13
5.4 Entitlement Process .................................................................................................. 13
5.5 No Guaranty of City Approval ................................................................................. 14
5.6 Debt Financing ......................................................................................................... 14
5.7 Equity Financing ...................................................................................................... 14
5.8 Minimize City Funds................................................................................................ 14
ARTICLE VI. CLOSING DOCUMENTS 14
6.1 Closing Documents, Generally ................................................................................. 14
6.2 Project Entity Agreement ......................................................................................... 15
6.3 LURA ...................................................................................................................... 15
6.4 APCHA Covenant .................................................................................................... 15
6.5 Ground Leases ......................................................................................................... 15
6.6 Right of First Refusal and Purchase Option .............................................................. 16
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6.7 Cure Rights .............................................................................................................. 17
6.8 City Loan Documents .............................................................................................. 17
6.9 Property Management .............................................................................................. 18
6.10 Admissions and Occupancy Policies; Role of APCHA ............................................. 19
6.11 Construction Contract .............................................................................................. 19
6.12 Guarantees at the Closing ......................................................................................... 19
6.13 Cash Flow Waterfall ................................................................................................ 19
ARTICLE VII. LIHTC PROGRAM SELECTION AND CLOSING 20
7.1 LIHTC Program Selection ........................................................................................ 20
7.2 Closing Contingencies.............................................................................................. 20
7.3 Closing .................................................................................................................... 21
ARTICLE VIII. TERMINATION 21
8.1 Termination by City for Event of Default ................................................................. 21
8.2 Termination by Developer for Event of Default ........................................................ 22
8.3 Events Beyond Control ............................................................................................ 22
8.4 Termination for Infeasibility .................................................................................... 22
8.5 Delivery of Work Product to City ............................................................................. 24
ARTICLE IX. MISCELLANEOUS 24
9.1 Term ........................................................................................................................ 24
9.2 Notices ..................................................................................................................... 24
9.3 Further Assurances ................................................................................................... 25
9.4 Assignment .............................................................................................................. 26
9.5 Counterparts ............................................................................................................. 26
9.6 Interpretation and Governing Law ............................................................................ 26
9.7 Attorneys’ Fees ........................................................................................................ 26
9.8 Severability .............................................................................................................. 26
9.9 Final Agreement ....................................................................................................... 26
9.10 Waivers .................................................................................................................... 26
9.11 Successors ................................................................................................................ 26
9.12 Headings .................................................................................................................. 26
9.13 Construction ............................................................................................................. 26
9.14 Certain Approvals .................................................................................................... 26
9.15 Binding Effect .......................................................................................................... 27
9.16 Cumulative Rights.................................................................................................... 27
9.17 References to this Agreement ................................................................................... 27
9.18 No Commissions ...................................................................................................... 27
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MASTER DEVELOPMENT AGREEMENT
THIS MASTER DEVELOPMENT AGREEMENT is entered into as of ____________
___, 2017 between THE CITY OF ASPEN, a home rule municipality within the State of Colorado
(the “City”), and ASPEN HOUSING PARTNERS, LLC, a Colorado limited liability company
(the “Developer”).
RECITALS
A. On December 18, 2015 the City issued a Request for Proposals (the “RFP”) to select
a private master developer to assist the City with planning, entitling, financing, developing,
managing, operating and maintaining for-rent affordable housing units on three separate sites
owned by the City and located within the municipal boundaries of the City (collectively, the
“Project”). The three development sites owned by the City (the “Sites” and each a “Site”) are
described on Exhibit°A of this Agreement.
B. Pursuant to the RFP, the City competitively selected the Developer as the developer
for the Project . The City and the Developer thereafter entered into that certain Summary of Terms
for Development Agreement for Affordable Housing as approved by City Council Resolution
#165, Series of 2016, November 14, 2016.
C. The City and the Developer now desire to enter into this Agreement in order to set
forth specific rights and responsibilities in connection with carrying out the Project.
D. Capitalized terms used in this Agreement are either defined under the heading
“Definitions” below, or elsewhere within the text of this Agreement.
AGREEMENT
In consideration of the foregoing recitals and the mutual covenants and agreements set
forth herein, which both parties agree to be good and valuable cons ideration, the parties agree as
follows:
ARTICLE I. DEFINITIONS
The following capitalized terms will have the meanings given for them below. Other
capitalized terms that are used in this Agreement but that are not defined below are defined in the
other provisions of this Agreement.
“Affiliate” means, with respect to any entity, any other person or entity that directly or
indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, such entity.
“AFR” is defined in Sect ion 6.8.2.
“Agreement” means this Master Development Agreement (including all attached exhibits),
as amended from time to time.
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“APCHA” means the Aspen/Pitkin County Housing Authority formed by an
intergovernmental agreement (as amended from time to time) between the City and the Board of
County Commissioners of Pitkin County, Colorado .
“APCHA Covenant” means a perpetual Occupancy Deed Restriction a nd Agreement to be
recorded against each Site for the purpose of causing all Units developed on such Site pursuant to
this Agreement (including both the LIHTC Units and the Non-LIHTC Units) to qualify as
affordable housing rental Units in accordance with t he APCHA Guidelines and the final approved
Development Plan.
“APCHA Guidelines” means the annual guidelines published by APCHA to govern the
operation of the APCHA affordable housing program, as amended from time to time.
“Applicable Public Housing Requirements” means any HUD Laws, LIHTC Laws, APCHA
Guidelines, and other federal, state and local regulatory requirements applicable to the Project and
the Units as affordable housing units during the period required by law, together with the LURA
and APCHA Covenant recorded on each Site.
“Cash Flow Waterfall” is defined in Section 6.13.
“CHFA” means the Colorado Housing and Finance Authority, a body corporate and
political subdivision of the State of Colorado, which has been designated as the Colorado state
allocating agency for Tax Credits pursuant to the LIHTC Laws.
“City” is defined in the first paragraph of this Agreement.
“City Funds” means the funds approved and made available by the City for paying a portion
of the development costs for the Project.
“City Loan” means a subordinate loan made by the City to the Project Entity as provided
in a separate commitment letter in the form attached as Exhibit B in the amount of the City Funds.
“Closing” means the date on which all of the principal commitments regarding
development of the Project (including, without limitation, the City Loan, the Ground Leases, the
Tax Credits and Investor financing, all other necessary construct ion and third-party financing, the
Project Entity Agreement, the LURA, the APCHA Covenant, and the Construction Contract) are
performed or converted to binding obligations of performance by the execution of the Closing
Documents.
“Closing Contingencies” is defined in Section 7.2.
“Closing Documents” is defined in Section°6.1.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Construction Contract” is defined in Section 6.11.
“Developer” is defined in the first paragraph of this Agreement.
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“Developer Fee” is defined in Section 3.3.
“Developer Pursuit Costs” means any and all actual out -of-pocket expenses incurred and
paid by Developer or any Affiliate of Developer in performing the Developer Services pursuant
to, and authorized in the manner set forth in, this Agreement, including without limitation (a) all
professional fees and reimbursable expenses paid to third-party consultants in pursuit of the Project
such as architects, landscape architects, engineers, planners, surveyors, lawyers, geotechnical
consultants, environmental consultants, and traffic engineers; (b) all costs incurred to conduct the
Public Outreach Process for the Project, such as facility rental charges, food and beverage charges,
and materials production expenses; (c) travel expenses for travel outside of the Roaring Fork
Valley; and (d) all application fees paid to any governmental entity in connection with the Project
such as, without limitation, the City of Aspen Community Development Department, CHFA,
APCHA, and/or HUD. Notwithstanding the foregoing, Developer Pursuit Costs will not include
Developer’s general overhead expenses such as office rent and utilities, insurance premiums
(except any Project -specific insurance policies obtained by the Developer at the request of the City
or with the City’s approval), salaries or benefits paid to any principal of Developer or any Affiliate
of Developer, and income taxes.
“Developer Services” is defined in Section 3.1.
“Development Plan” is defined in Section 2.3.1.
“Entitlement/Feasibility Period” is defined in Section 5.1.
“Environment” means surface or subsurface soil or strata, surface waters and sediments,
navigable waters, wetlands, groundwater, sediments, drinking water supply, ambient air, species,
plants, wildlife, animals and natural resources. The term also includes indoor air, surfaces and
building materials, to the extent regulated under Environmental Laws.
“Environmental Condition” means the presence of Hazardous Materials in the
Environment at, on, in, under or about a Site.
“Environmental Law” means any present or future federal, state or local law, ordinance,
rule, regulation, permit, license or binding determination of any governmental authority relating
to, imposing liability or standards concerning, or otherwise addressing Hazardous Materials, the
environment, health or safety, including, but not limited to: the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (“CERCLA”); the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (“RCRA”); the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Clean
Water Act, 33 U.S.C. Section 1251 et seq. and any so-called “Superfund” or “Superlien” law, and
the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq., as each is from time to
time amended and hereafter in effect.
“Event of Default” is defined in Section 8.1 (as to the Developer) and Section°8.2 (as to
the City).
“Events Beyond Control” is defined in Section 8.3.
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“Final Entitlement” means that all zoning, subdivision, variance (if applicable), and other
approvals that are necessary under the Land Use Code for all of the Sites to be eligible for submittal
of a building permit application for construction of the Project pursuant to the final Development
Plan have been approved and/or issued and that all applicable appeal, initiative, and referendum
periods have either run without any such appeal, initiative, or referendum being filed, or, if any
such appeal, initiative, or referendum is filed for the purpose of challenging, reversing or
invalidating any such approval, that such appeal, initiative, or referendum has been finally
co ncluded or resolved with all such necessary approvals for the Project being preserved and/or
upheld.
“General Contractor” means the general contractor chosen by the Developer in accordance
with the terms of this Agreement to construct the Project.
“Ground Leases” is defined in Section 6.5.
“Hazardous Materials” means any solid, liquid, or gaseous material, chemical, waste or
substance that is regulated by a federal, state or local governmental authority and includes those
substances listed or defined as “hazardous substance” under CERCLA, “hazardous waste” under
RCRA or otherwise classified as hazardous, dangerous or toxic under any Environmental Law and
will specifically include petroleum, oil and petroleum hydrocarbons, radon, radioactive materials,
asbestos, lead-based paint, urea formaldehyde foam insulation and polychlorinated biphenyls.
“HUD” means the U.S. Department of Housing and Urban Development.
“HUD Laws” means the United States Housing Act of 1937 (42 U.S.C. § 1437, et seq.), as
amended from time to time, and any regulations promulgated by HUD thereunder.
“Investor” means the Tax Credits investor limited partner(s) or non-managing member(s)
in the Project Entity as may be selected pursuant to Section 5.7.
“Land Use Code” means the City of Aspen Land Use Code set forth in Title 26 of the
City’s Municipal Code, as it may be amended from time to time.
“LIHTC Laws” means all Colorado and federal laws and regulations governing the
allocation, issuance, use of and implementation of Tax Credits in the State of Colorado, including
without limitation Section 42 of the Code, and the Treasury Regulations promulgated pursuant
thereto, and Article 22 of Title 39, Colorado Revised Statutes, as amended from time to time, and
the regulations promulgated pursuant thereto.
“LIHTC Units” means those Units developed on each Site pursuant to this Agreement that
qualify as a low-income housing units pursuant to the LIHTC Laws.
“LURA” means a Land Use Restriction Agreement to be recorded against each Site of the
Project with respect to the LIHTC Units, as required by the LIHTC Laws.
“Management Agent” is defined in Section 6.9.
“Management Fee” is defined in Section 8.4.6.
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“Non-LIHTC Units” means those Units developed on each Site pursuant to t his Agreement
that are not LIHTC Units.
“Project” is defined in Recital A of this Agreement.
“Project Budget ” is defined in Section 2.5.
“Project Entity” means a limited liability company or limited partnership to be formed by
the Developer to develop, own, operate and maintain all three Sites in accordance with Section 2.4.
“Project Entity Agreement” means the limited partnership agreement or limited liability
company agreement governing the affairs and management of the Project Entity to be entered into
in accordance with this Agreement.
“Project Schedule” is defined in Section 6.2.
“Public Outreach Process” is defined in Section 5.3.
“RFP” is defined in Recital A of this Agreement .
“Required Remediation Work” is defined in Section 4.4.2.
“Site ESA” is defined in Section 4.4.2.
“Site Investigation” is defined in Section 4.3.
“Sites” or “Site” is defined in Recital A of this Agreement.
“Submittal Date” is defined in Section°5.4.
“Surveys” is defined in Section 4.2.
“Tax Credits” means low income housing tax credits allocated by CHFA for the Project
pursuant to the LIHTC Laws.
“Title Company” means Stewart Title of Aspen as agent for Stewart Title Insurance
Company.
“Units” means all rental housing units to be constructed on the Sites pursuant to this
Agreement.
ARTICLE II. ENGAGEMENT; DEVELOPMENT PLAN, SCHEDULE AND
BUDGET
2.1 Basic Intent. The intent of this Agreement is to create a mechanism for the
City and the Developer to develop the Sites for rental affordable housing purposes in a manner
consistent with the Development Plan and the Applicable Public Housing Requirements. The Sites
are not currently entitled for such development and due diligence has not yet been performed to
confirm the suitability of the Sites for such development. This Agreement establishes a process
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by which (a) due diligence will be performed on the Sites to evaluate suitability for development
of the Project; (b) the Public Outreach Process will be followed to solicit and develop feedback
from neighbors of the Sites and the public at -large concerning the Project; (c) applications for all
necessary zoning, subdivision and other entitlements will be processed for the Sites pursuant to
the Aspen Land Use Code; (d) the costs for development of the Project will be determined and
sources and amounts of funding for such costs (including Tax Credits, City Funds, Investor equity,
and construction financing) will be identified and potentially agreed upon; and (e) if Final
Entitlement occurs, the Closing Documents agreed upon, and all costs and funding sources agreed
upon, the Project will be constructed on the Sites.
2.2 Designation and Engagement of Developer. The City confirms the
designation of the Developer as the developer for the entitlement of the Project and development
of the Sites in accordance with the Development Plan (as defined below) and this Agreement.
Notwithstanding the foregoing, nothing contained in this Agreement will be deemed or construed
to create a relationship of partners, co -venturers, or principal and agent between the City and the
Developer. The Developer will have no power or authority to create any obligation on the part of
the City, as obligor, guarantor, or surety, with respect to any obligation to third parties incurred by
the Developer.
2.3 Development Plan.
2.3.1 Current Development Plan. The current basic plan for development
of the Sites fo r the Project is attached to this Agreement as Exhibit C (as it may be revised
from time to time in accordance with the terms of this Agreement, the “Development
Plan”).
2.3.2 Adjustment of Development Plan. As the City and Developer pursue
the further planning and implementation of the Project pursuant to this Agreement , they
may identify areas in which the Development Plan can be improved so as to make the
Project more economically feasible, to address reasonable concerns of other stakeholders
such as neighbors of the Sites, to better achieve the underlying objective of developing
affordable housing within the City and/or to meet expectations or requirements of funding
sources. The City and Developer recognize that both the Project as a whole and each Site
are wholly dependent upon each of the projected funding sources being available in a
timely manner, and other conditions which are, in part, beyond the parties’ control. The
parties therefore recognize that the Development Plan (and its goal of achieving a certain
number of affordable housing units) may prove to be predicated on assumptions which are
no longer well-founded, causing the Development Plan or segments thereof to be no longer
reasonably feasible, or requiring changes to the number or mix of Units at one or more of
the Sites. Where future amendments to the Development Plan are required by the foregoing
factors or more generally by infeasibility or other circumstances, the City and Developer
will work together to develop changes that accomplish the original goals set forth in the
Development Plan (including its goal of achieving a certain number of affordable housing
units) to the maximum extent reasonably feasible given available resources. The City must
approve any changes to the Development Plan, and the City’s approval of any update to
the Development Plan will confirm the City’s approval of the proposed actions by the
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Developer described in it. Any update to the Development Plan will be deemed
incorporated into this Agreement as if attached in full.
2.4 Project Schedule. The projected schedule for starting and finishing all tasks
contemplated by this Agreement and the Development Plan is attached as Exhibit D (as it may be
supplemented and amended in accordance with the terms of this Agreement, the “Project
Schedule”). The Developer will revise and update the Project Schedule, subject to approval by the
City, to reflect evolving events and circumstances and pr ovide an updated Project Schedule to the
City from time to time. If the City objects to any proposed change in the Project Schedule as
submitted by the Developer, the City will promptly advise the Developer in writing of the City’s
basis for such objectio n and any suggested means of avoiding or otherwise remedying such change.
Each party agrees to advise the other promptly if it learns of any known or reasonably anticipated
event or condition that might affect the Project Schedule. Any approved update to the Project
Schedule will be deemed incorporated into this Agreement as if attached in full.
2.5 Project Budget. The current budget for the overall Project is attached as
Exhibit E (as it may be supplemented and amended in accordance with the terms of this
Agreement, the “Project Budget ”). The Project Budget may include for approval by the City a
budget of proposed Developer Pursuit Costs, and any costs incurred pursuant to any suc h approved
Project Budget shall be authorized under this Agreement. In addition, Developer may submit
specific proposed Developer Pursuit Costs for authorization in addition to any other Developer
Pursuit Costs included in the Project Budget. All material proposed revisions to a Project Budget,
including without limitation any change of 10% or more to any line item (both sources and uses),
and including any appropriate qualifications and/or exclusions (e.g., for any Environmental
Condition), will be submitted by the Developer to the City for approval or when requested by the
City, which upon approval by the City will be deemed to constitute a revised Project Budget. The
Developer shall advise the City of any proposed updates to the Project Budget at least twice
annually. If the City objects to any proposed change in the Project Budget as submitted by the
Developer, the City will promptly advise the Developer in writing of the City’s basis for such
objection and the parties will work in good faith to resolve any disagreement concerning the
proposed change. Each party agrees to advise the other promptly if it learns of any known or
reasonably anticipated event or condition that might affect the Project Budget. Any agreed
modification to the Project Budget will be deemed incorporated into this Agreement as if attached
in full.
2.6 Status Reports and Information. The Developer will provide the City with
periodic progress reports as reasonably requested by the City on the status of all Project -related
activities, and which will include proposed modifications to the Development Plan, Project Budget
and Project Schedule, when necessary. Developer will attend progress meeting s with the City
respecting such matters as the predevelopment phase of the Project progresses. Upon request from
the City, Developer will provide projected timetables and delivery schedules relating to certain
key activities such as the Submittal Date and the date of Closing. In addition, the Developer shall
submit to the City a monthly summary of Developer Pursuit Costs, along with a reconciliation
against any approved budget for such Developer Pursuit Costs.
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ARTICLE III. DEVELOPER SERVICES AND DEVELOPER FEE
3.1 Developer Services. The Developer, directly or through the Project Entity, will
initiate, coordinate, and carry out or contract for all design, Final Entitlement, permitting,
financing, and construction activities in connection with the development, construction and
completion of development of each Site pursuant to the Development Plan, as further provided in
and subject to the terms of this Agreement. The services and activities to be performed by
Developer subject to the terms of this Agreement (the “Developer Services”) include, without
limitation, the following:
3.1.1 The Developer will oversee all due diligence activities to evaluate the
suitability of the Sites for the develop ment of the Project , which process the parties
acknowledge is substantially complete as of the execution of this Agreement.
3.1.2 The Developer will be responsible for, and has completed as of the
execution of this Agreement, conducting the Public Outreach Process described in this
Agreement in order to solicit feedback on the proposed Project from community members,
neighbors and other identified stakeholders.
3.1.3 The Developer will be responsible for applying for and pursuing Final
Entitlement of the Project.
3.1.4 Developer will be responsible for pursuing the award and commitment
of all sources of construction, gap and permanent financing needed for development of the
Project in accordance with the Project Budget, other than the City Funds, as further
provided in this Agreement.
3.1.5 Developer will be responsible for applying for, obtaining and preserving
through Closing an allocation of Tax Credits from CHFA in accordance with the Project
Budget.
3.1.6 Developer will contract with and supervise the delivery of all work
product required for the Project from professional consultants such as architects, landscape
architects, engineers, planners, surveyors, lawyers, geotechnical consultants,
environmental consultants, and traffic engineers, each of which will be under the control
and direction of Developer.
3.1.7 The Developer will be responsible for soliciting and selecting third-
party lenders and the Investor for the Project. The Developer will provide the City with an
opportunity to review and comment on Developer’s proposal for soliciting an Investor and
any lender s. The Developer will provide the City with copies of all Investor and lender
proposals received together with a summary analysis a nd assessment of the proposals, and
shall obtain the approval of the City before accepting or ent ering into any letter of intent
with respect any such proposal.
3.1.8 The Developer shall lease all units in the Project in accordance with the
Applicable Public Housing Requirements.
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3.2 Funding of Development Services. The Developer will be responsible for
funding all expenses incurred to provide the Developer Services and perform its obligations under
this Agreement, subject to the right to be reimbursed and/or compensated for such services through
payment of, as applicable, the Development Fee (if the Closing o ccurs) or the Management Fee
and reimbursement of the Developer Pursuit Costs pursuant to the applicable provisions of Article
VIII. The expenses incurred by Developer in providing the Developer Services will be accounted
for in a standard development accounting format, and the City will have full access to all such
Project accounting records at all times.
3.3 Developer Fee. As compensation for its undertaking and performance of
Developer Services, the Developer (or an Affiliate of Developer designated by Developer) will be
entitled to earn and receive a developer fee from the Project Entity of 12% of the “eligible basis”
costs for the Project as calculated pursuant to the requirements of CHFA (the “Developer Fee”).
The Developer and the Cit y intend that the Developer Fee will equal the maximum amount
available pursuant to the LIHTC Laws and the CHFA program or 12%, whichever is less. Subject
to terms required by the Investor and any senior lender, 20% of the Developer Fee will be earned
by the Developer for the Developer Services it performs up to the Closing and will be paid to the
Developer concurrently with the consummation of the Closing. The remainder of the Developer
Fee will be paid to the Developer over the course of the construction and leasing process for the
Project according to a payment schedule to be approved by the City and the Investor, subject to
commercially reasonable terms for potential deferment of portions of the Development Fee arising
from unanticipated cost overruns. No portion of the Developer Fee will be considered earned or
payable unless and until the Closing occurs. If this Agreement is terminated prior t he Closing,
then the reimbursement and compensation of the Developer for performing the Developer Services
up to the time of termination will be governed by the applicable provisions of Article VIII.
3.4 Contractors and Consultants. The Developer or the Project Entity will be
responsible for the selection and engagement of contractors, consultants and other participating
parties necessary for carrying out the Developer Services. The Developer will notify the City in
advance of all proposed selections by the Developer of contractors, consultants or other
participating parties engaged or selected for participation in the Project, and all such selections
shall be subject to the City’s approval, which shall not unreasonably be withheld. The City hereby
approves all of the consultants and contractors previously engaged by the Developer identified in
Exhibit F. The replacement of any consultant or contractor listed on Exhibit F shall be subject to
the terms of this Section 3.4.
3.5 Cooperation and Approval Standards. The City and the Developer will
cooperate with one another in a good faith effort to complete the Project. Such cooperation will
include reasonable efforts to respond to one another as expeditiously as possible with regard to
requests for information or approvals required hereby and prompt proactive sharing of information
pertinent to the carrying out and orderly progression of the Project. With regard to materials or
documents requiring the approval of one or more parties, if such materials or documents are n ot
approved as initially submitted, then the parties will engage in such communication as is necessary
under the circumstances to resolve the issues resulting in such disapproval. The City will promptly
review any matter submitted and advise the Developer in writing of approval or of why approval
is being withheld. The City’s approval of any matter required hereunder will be in writing and
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will not be unreasonably withheld, conditioned or delayed, except as otherwise specifically
provided in this Agreement.
3.6 Communications. To facilitate communication, the City and the Developer
each will designate a representative with responsibility for the routine administration of such
party’s obligations under this Agreement. Initially such representatives will be Chris Everson,
Affordable Housing Project Manager, for the City and Jason Bradshaw, Manager, for the
Developer.
ARTICLE IV. DUE DILIGENCE MATTERS
4.1 Title Insurance Commitments. The Developer has obtained title insurance
commitments for the three Sites from the Title Company (as updated from time to time, the “Title
Commitments”). The Title Commitment s will be used, if the Closing occurs, as the basis for the
issuance of leasehold title insurance policies to the Project Entity to insure its interests under the
Ground Leases and also to provide a lender’s title insurance policy to the City with respect to the
City Loan and any construction lender with respect to its construction loan (including any
applicable HUD requirements). The Developer, with the assistance and ad vice of legal counsel
and other consultants, has reviewed the Title Commitments and determined that there do not
appear to be any matters of title affecting the Sites that would materially impair or prevent the
Project from being developed on the Sites, such as, for example and without limitation, restrictive
covenants that conflict with the Development Plan. The Developer will cause the Title
Commitments to be updated from time to time prior to the Closing. As a condition to the Closing,
the final form o f the Title Commitments and the insurance coverage to be provided pursuant to the
title insurance policies to be issued pursuant to the Title Commitments will be subject to the
approval of the Project Entity (with respect to its owner’s policy to be issued insuring its leasehold
interests pursuant to the Ground Leases, the City (with respect to its mortgagee’s policy to be
issued with respect to the City Loan), any construction lender for the Project (with respect to its
mortgagee’s policy to be issued with respect to the City Loan), and, to the extent applicable under
the Applicable Public Housing Requirements, any governmental entity participating in the
issuance of the Tax Credits or facilitating any other financing for construction of the Project.
4.2 Surveys. The Developer has obtained preliminary surveys of the Sites prepared
by Peak Surveying, Inc. in accordance with the 2016 Minimum Standard Detail Requirements of
ALTA/NSPS Land Title Surveys, including Items 1 - 5, 7(a), 8, 11 – 14, 16 -19 of Table A (as
updated and revised from time to time, the “Surveys”). The Developer, with the assistance and
advice of legal counsel and other consultants, has reviewed the Surveys and determined that there
do not appear to be any matters affecting the Sites as revealed by the Surveys that would materially
impair or prevent the Project from being developed on the Sites, such as, for example and without
limitation, any easements that conflict with the Development Plan that cannot be terminated or
relocated by the City as the owner of the Sites. The Developer will cause the Surveys to be updated
and supplemented from time to time in accordance with the requirements of CHFA, HUD, the
City, the Title Company, any lender for the Project, and based on the Developer’s review of the
Surveys. As a condition to the Closing, the final form of the Surveys will be subject to the approval
of the Project Entity, the City, the Title Company, any construction lender for the Project, and, to
the extent applicable under the Applic able Public Housing Requirements, any governmental entity
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participating in the issuance of the Tax Credits or facilitating any other financing for construction
of the Project.
4.3 Access to the Property and Other Investigations. For the duration of this
Agreement, the City will permit representatives of the Developer and all consultants and
professionals engaged by the Developer in the performance of the Developer Services to have
access to the Sites at all reasonable times for the purpose of obtaining and up dating information
and conducting studies, evaluations, assessments, tests and investigations of the Sites for the
purpose of evaluating the suitability of the Sites for development of the Project and to assist with
the design of the Project on the Sites (the “Site Investigations”). The Site Investigations may
include, without limitation, surveying work, geotechnical sampling and testing, environmental site
assessments, asbestos testing, mold testing, and traffic studies. The Developer will make available
to the City copies of all work product generated by the Developer and its consultants and
professionals pursuant to the Site Investigations. The Developer, with the assistance of its
professional consultants, will review the results and work product of t he Site Investigations to
determine if there are any matters affecting the Sites as revealed by the Site Investigations that
would materially impair or prevent the Project from being developed on the Sites. The Developer
will notify the City of any such matters that materially impair or prevent the Project from being
developed on the Sites. The Developer will cause the Site Investigations to be updated and
supplemented from time to time in accordance with the requirements of CHFA, HUD, the City,
any lender for the Project, and based on the Developer’s review of the Site Investigations. As a
condition to the Closing, the condition of the Sites as revealed by the Site Investigations will be
subject to the approval o f the Project Entity, the City, any construction lender for the Project, and,
to the extent applicable under the Applicable Public Housing Requirements, any governmental
entity participating in the issuance of the Tax Credits or facilitating any other financing fo r
construction of the Project.
4.4 Special Terms Regarding Environmental Conditions.
4.4.1 Environmental Assessment. As part of the Developer Services,
Developer will cause Phase I environmental site assessments to be completed for the Sites,
and will provide a copy to the City. If recommended by any Phase 1 environmental site
assessment or otherwise deemed warranted by the Developer or the City with respect to an
existing or suspected Environmental Condition identified in any Phase 1 environmental
site assessments or addenda thereto, the Developer will cause to be performed a Phase II
environmental site assessment with respect to any applicable Site along with any further
testing or other evaluation reasonably necessary to determine the existence, scope and
extent of any Environmental Cond ition, and will provide a copy of all such items to the
City. If a Phase II environmental site assessment is determined to be necessary as provided
above, then the Developer and its consultants will be afforded a reasonable period of time
to determine the extent of any Required Remediation Work that will be required with
respect to the applicable Site.
4.4.2 Required Remediation Determination. If a Phase I environmental
site assessment , a Phase II environmental site assessment or any further testing or
evaluation (collectively, a “Site ESA”) identifies the presence of an Environmental
Condition, the Developer will determine, in consultation with the City and appropriate
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environmental consultants engaged for the Project by the Developer, the scope of
remediation, if any, required to be performed at the affected Site to comply with the remedy
standards under the applicable Environmental Laws for the intended use of the Site
pursuant to the Development Plan (the “Required Remediation Work”).
4.4.3 Performance of Required Remediation and Alternatives. The City
and the Developer acknowledge that the third-party funding sources for the Project, as a
condition to the Closing and their funding of the Project, will likely require evidence that
any Required Remediation Work has been completed in accordance with applicable
Environmental Laws, which may inc lude a requirement to obtain a certificate of
completion or a “no further action” clearance letter with respect thereto from the Colorado
Department of Public Health and Environment. If Required Remediation Work is
determined to be needed, then the Developer will determine if the Required Remediation
Work will need to be completed prior to the Closing to satisfy the requirements of all third -
party funding sources. If the third-party funding sources will permit the Required
Remediation Work to be completed after the Closing, then the Required Remediation Work
will become part of the Project and incorporated into the Development Plan for undertaking
as part of the construction work on the applicable Site after the Closing. If, however, the
third-party funding sources will require that the Required Remediation Work be completed
prior to and as a condition of the Closing, then the City will have the option to: (a) eliminate
the affected Site from the Project; or (b) agree with the Developer on a schedule, plan, and
funding arrangement for the purpose of completing the Required Remediation Work on the
affected Site prior to the Closing with the costs thereof treated as Project costs to be
subsequently reimbursed at the time of Closing (if feasible under the LIHTC Laws and all
requirements of third-party funding sources); or (c) agree with the Developer on an
alternative method for addressing the Required Remediation Work that is mutuall y
satisfactory to the Developer, the City, and all third -party funding sources; or (d) terminate
this Agreement pursuant to either Section 8.4.1 or Section 8.4.2, as applicable, and not
proceed with the Project. If the City chooses to eliminate a Site from the Project pursuant
to this Section 4.4.3, then all references in this Agreement to the “Sites” and the “Project”
shall be deemed to omit the Site so eliminated.
4.5 Removal of Site, Generally. The Developer and the City may mutually
determine at any time, based on the investigations of the Sites undertaken by the Developer
pursuant to this Article IV or any other information concerning the feasibility of the Project that
becomes available to the City and the Developer from time to time, that a Site should be eliminated
from the Project. The decision to eliminate a Site from the Project pursuant to this Section 4.5
must be memorialized in an amendment to this Agreement or other written agreement between the
parties. Neither party shall have any obligation to agre e to eliminate a Site from the Project
pursuant to this Section 4.5. If the parties do agree to eliminate a Site from the Project pursuant to
this Section 4.5, then all references in this Agreement to the “Sites” and the “Project” shall be
deemed to omit the Site so eliminated. This Section 4.5 shall not limit the City’s right to eliminate
a Site from the Project on account of Required Remediation Work pursuant to Section 4.4.3.
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ARTICLE V. ENTITLEMENT/FEASIBILITY PERIOD
5.1 Entitlement / Feasibility Period, Generally. There will be a two-year period
beginning upon the date of this Agreement for the Developer to obtain Final Entitlement for the
Project and commitments for all third-party financing necessary to proceed with development of
the Project (the “Entitlement/Feasibility Period”). The Entitlement/Feasibility Period will
encompass and be subject to the following sections of this Article V.
5.2 Design. The Developer will, in consultation with the City and based on input
of the planning consultants, Project Architect, landscape designers, and engineers engaged by the
Developer for the Project, refine and advance the Development Plan for the Project, with it being
intended that the Development Plan will include final construction drawings and specifications for
construction of the Project on the Sites as of the Closing. The Development Plan, as refined and
advanced, will take into consideration community-wide, neighborhood and stakeholder feedback
based on a public outreach effort that will be led by the Developer as described below. The
Developer will cause the Development Plan to be updated and revised from time to time prior to
the Closing as necessary or appropriate to address or incorporate information obtained during
investigation of the Sites, changes in the Project Budget or as needed to be consistent with the
Project Budget, feedback from consultants engaged for the Project, and directives from the City
regarding its preferences for the Project. Each iteration of the Development Plan will be subject
to the approval of the City. All proposed revised versions of the Development Plan will be
submitted to the City for approval, from time to time, as they are being develo ped. The City will
communicate to the Developer its approval or disapproval of any proposed update to the
Development Plan within ten (10) days of submission. If the City disapproves of a proposed
update to the Development Plan, a written explanation will be provided to the Developer.
5.3 Public Outreach Process. Prior to the date of this Agreement, the Developer
commenced a public outreach process to solicit feedback from the community regarding the
Project (the “Public Outreach Process”). The Public Outr each Process included an at-large
community meeting and neighborhood-specific meetings for neighbors of the three Sites. The
Public Outreach Process was used to further develop the Development Plan and the Project Budget,
including, without limitation, the LIHTC Unit/Non-LIHTC Unit mix at each Site and the APCHA
rental categories for the Units. The work product developed from the Public Outreach Process
included a detailed summary of the community input received at each of the public outreach events
in a transparent format and included an executive summary of the same. Such work product was
delivered by the Developer to the City for the City’s consideration and to enable the City to provide
guidance on the current Development Plan attached to this Agreeme nt as Exhibit C.
5.4 Entitlement Process. Based on the current Developed Plan, the Developer will
prepare and submit applications to the City’s Community Development Department for each Site
for the purpose of applying for Final Entitlement. The parties ack nowledge that each of the Sites
will require a rezoning (along with other approvals) to proceed with the Project. The parties agree
that the Developer will apply to rezone each of the Sites as AH – Planned Development pursuant
to the Land Use Code. The date as of which the Developer has submitted applications to the City’s
Community Development Department for the purpose of applying for Final Entitlement with
respect to all of the Sites will be the “Submittal Date” pursuant this Agreement.
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5.5 No Guaranty of City Approval. The City hereby reserves all police power
rights and discretionary approval rights pursuant to the Land Use Code. Nothing in this Agreement
is intended to create, or shall be construed as creating, any obligation on the part of the City, the
City Council, or any department of the City to grant Final Entitlement approval or any preliminary
approval or recommendation that is required to obtain Final Entitlement approval pursuant to the
Land Use Code. The Developer acknowledges that the applications submitted for the purpose of
obtaining Final Entitlement will be subject to all applicable requirements of the Land Use Code.
Without limiting any of the foregoing, it is agreed and acknowledged that the discretion of the City
Council to approve, approve with conditions, or deny any land use application for the Project in
accordance with the standards of the Land Use Code is hereby and will be preserved.
5.6 Debt Financing. As the Final Entitlement process progresses, the Developer
will pursue appropriate debt financing for a construction loan and permanent loan following
completion of construction of the Project. The debt financing may be pursued as a HUD -insured
loan under the HUD § 221(d)(4) program by which the federal Department of Housing and Urban
Development insures a combined construction/permanent loan facility that is provided by a private
commercial lender. The Developer agrees to pursue financing such that the terms, conditions and
net proceeds are competitive so as to require the lowest amount of City Funds reasonably
achievable to complete construction of the Project.
5.7 Equity Financing. Subject to Section 3.1.7, the Developer will have the right
to choose the Investor for the Project. However, the Developer will solicit three competitive bids
for providing equity to the Project Entity from nationally recognized equity providers for Tax
Credits projects to substantiate the proposed pricing being utilized by the Developer and the
Project Entity.
5.8 Minimize City Funds. The Developer agrees to structure the debt and equity
financing for development of the Project so as to require the lowest City Funds amount reasonably
achievable by minimizing development and construction costs and maximizing all debt and equity
sources.
ARTICLE VI. CLOSING DOCUMENTS
6.1 Closing Documents, Generally. The City and the Developer acknowledge that
development and operation of the Project and the Sites contemplates and encompasses certain
long-term continuing relationships between the City, the Developer, the Project Entity and/or
Affiliates of the Developer following completion of construction of the Project that are integral to
the realization of the goals of the Proje ct. The terms and conditions of such continuing
relationships with respect to the Project are to be more fully described and set forth in various
documents and agreements that will be executed in connection with the Closing. The present
understandings bet ween the City and the Developer with respect to such relationships as they relate
to the Project, and as will be memorialized and further detailed in separate agreements at the
Closing, are summarized in the following provisions of this Article VI. The Developer and/or the
Project Entity, as appropriate, the City, the Investor, any third-party lenders, APCHA, CHFA,
HUD (as applicable), and any other applicable parties will execute at Closing such documents as
will be necessary and appropriate to the implementation of the Project in accordance with this
Agreement and the LIHTC Laws, which will collectively be known as the “Closing Documents.”
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The Closing Documents will conform to the particular commitments made in this Agreement and
will be in form and content satisfactory to the Developer, the City, the Developer’s counsel, the
City’s counsel, the Investor, the Investor’s counsel, other lenders’ counsel, bond counsel (as
applicable), the purchasers and the underwriters of any bonds, HUD (as applicable), and/or any
other requisite funding source.
6.2 Project Entity Agreement. Developer will cause the Project Entity to be
formed as a limited partnership or limited liability company in which Developer or an Affiliate of
Developer will be the sole general partner or manager with the authority to manage and make
decisions on behalf of the Project Entity, subject to approval of certain major decisions by the
limited partners or other members. The Developer or its Affiliate, in its capacity as the general
partner or manager of the Project Entity, will make only a de minimus equity contribution to the
Project Entity. At the request of the City, the Project Entity will be structured and the Project
Entity Agreement will be drafted to permit APCHA to be a special limited partner or member for
purposes of securing exemption from ad valorem real estate taxes for the Sites or to achieve other
agreed Project goals, but without APCHA having any participation in the allocation of net losses
or net income or distribution of net cash flow from the Project Entity. In recognition of the
magnitude of the City’s financial investment in the Project in the form of the City Funds, the City
or an Affiliate of the City will be a special limited partner or special member in the Project Entity
for the purpose of giving the City the right to remove and replace the general partner or manager
(as applicable) in the event of uncured material defaults by such general partner or manager under
the Project Entity Agreement and/or to cure materials defaults by the Project Entity under any loan
agreements or the Ground Leases.
6.3 LURA. A LURA will be recorded against each of the Sites at the Closing for
the purpose of imposing income and rent restrictions against all of the LIHTC Units in the Project.
The income and rent restrictions of each LURA will be in place for the initial 15 -year “compliance
period” required by the LIHTC Laws and an additional “extended-use period” of at least 15 years
or whatever period is required pursuant to the LIHTC Laws based on the Tax Credits program
ultimately used for the Project. Each LURA will comply in form and substance with all
requirements of the LIHTC Laws and will also be subject to the approval of the City, APCHA, the
Developer, the Investor, and any Project lenders (including any required and mutually acceptable
subordination provisions).
6.4 APCHA Covenant. An APCHA Covenant will be recorded against each of
the Sites at the Closing for the purpose of imposing income and rent restrictions against all of the
Units in the Project (both the LIHTC Units and the Non-LIHTC Units). The term of the APCHA
Covenants will be perpetual (unless released in the future with the approval of the City and
APCHA). The APCHA Covenants will be senior (i.e., non-subordinated) to all mortgages and
deeds of trust encumbering the Sites for the purpose of securing any of the loans made to fin ance
development of the Project. Each APCHA Covenant will comply in form and substance with all
requirements of the APCHA Guidelines, but will include special provisions to avoid conflicts
between the provisions of the LURA and the pro visions of the APCHA Covenant.
6.5 Ground Leases. The City will hold fee title to each Site but will convey control
of each Site through a long-term ground lease to the Project Entity (the “Ground Leases”). The
form of the Ground Leases will be subject to the approval of the City and the terms required
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pursuant to the Applicable Public Housing Requirements and the reasonable requirement of the
Investor and any lender to the Project; provided, however, that the final form of the Ground Leases
must be acceptable to the City and t he Developer. The basic terms of each of the Ground Leases
will be as follows:
6.5.1 The commencement date of the rental term under each Ground Lease
will occur as of the consummation of the Closing.
6.5.2 The initial rental term of each Ground Lease will be 40 years with an
option for the Project Entity to extend the term by an additional 10 years.
6.5.3 The base rent payable under each Ground Lease will be a nominal
amount of $10.00 per year.
6.5.4 The Project Entity, as the tenant under each Ground Lease, will be the
owner of all the improvements existing or constructed on the Sites and such improvements
will be deeded or otherwise conveyed to the Project Entity in a manner that satisfies the
requirements of the title insurer to insure the Project Entity’s ownership int erest in such
improvements.
6.5.5 The Project Entity, as the tenant, will be responsible for all operating
and ownership costs for the three Sites.
6.6 Right of First Refusal and Purchase Option. The City will have an option to
purchase the Investor’s interests and the interests of the Developer or any affiliate in the Project
Entity or the Project or the Project Entity’s rights to each Site under each Ground Lease and a right
of first refusal to purchase the Project or the Project Entity’s rights to each Site under each Ground
Lease in compliance with the LIHTC Laws, and specifically Section 42(i)(7) of the Code. The
right of first refusal and purchase option will arise at the end of the initial 15 -year compliance
period under the LIHTC Laws, and will be set forth in a separate agreement entered into at the
Closing in connection with the tax credit investment. The purchase price under the right of first
refusal will be equal to the sum of: (a) all outstanding indebtedness and accrued but unpaid interest
owed to the senior lender for the Project; (b) any amount owed to the City as the junior lender
pursuant to the City Loan and any other junior secured debt; plus (c) the amount of all so -called
“exit tax” obligations that will be incurred by the Project Entity and its participants as a result of
the City exercising the option. The purchase price under the purchase option shall be the fair
market value of the interests or assets being purchased. The Developer or its designated Affiliate,
as the general partner or ma nager of the Project Entity, will use commercially reasonable efforts
(with no guaranty) to prevent the participants in the Project Entity from having negative capital
account balances that would increase the exit tax obligations. The capital accounts of the Project
Entity will be monitored in this regard. The Project Entity Agreement will include a provision
under which losses that would otherwise create negative capital accounts can be allocated to the
City as a special limited partner/member in the Pro ject Entity and thereby reduce any exit tax
obligations, subject to compliance with all Treasury Regulations promulgated under the Internal
Revenue Code. The Developer will produce downstream capital account projections to be
included in subsequent iterat ions of the Project Budget delivered to the City pursuant to this
Agreement.
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6.7 Cure Rights. To the extent feasible given the requirements of the senior lender
to the Project, the City will be given notice and cure rights with respect to any defaults by the
Project Entity under its loan from the senior lender for the Project. The City will also have curative
rights as the special limited partner/member in the Project Entity in order to prevent defaults from
occurring under the senior loan. The terms of the senior loan will be subject to the City's approval
in its discretion. The City and the Developer acknowledge that the senior lender (for the
construction phase and permanent financing phase) and/or any loan insurer such as HUD (per
§°221(d)(4) of the HUD Laws) will have its own requirements with respect to the Ground Leases
to protect its interests in the event of a default by the Project Entity as the tenant, but the City will
not be required to accept such requirements.
6.8 City Loan Documents. The City will enter into a loan agreement with the
Project Entity at the Closing to the City Funds to the Project consistent with the final approved
Project Budget . The City Funds will provide the financing necessary to fund the development
costs for the Project in excess of the funds generated from the sale of the Tax Credits, senior loans,
and other approved sources, in an amount approved by the City. The City will not be responsible
for funding any cost overruns in excess of those detailed in the final approved Project Budget
except to the extent caused by the City’s acts or omissions. The City Loan will include and/or
address, as applicable, the following basic terms:
6.8.1 Term. The City Loan will have a term of 50 years or other
commercially available term agreed to by the parties for the purpose of making the Project
financially feasible.
6.8.2 Interest Rate. The annual interest rate will be set at the "applicable
federal rate" (the “AFR”) published by the IRS (i.e., the lowest rate permitted by the IRS)
or another rate agreed to by the parties as necessary to make the Project financially feasible.
If the Project cash flows will not support an interest rate at the AFR, then the interest rate
will be set at the highest rate that allows a “true debt”/”residual value” analysis to show
reasonable repayment.
6.8.3 Note and Leasehold Deed of Trust. The City Loan will be evidenced
by a promissory note and will be secured by a junior leasehold deed of trust on the Project
Entity’s interest in the Sites under the Ground Leases. Such deed of trust will be junior to
the leasehold deeds of trust granted by the Project Entity from time to time to secure the
obligations under the construct ion and permanent financing for the Project, as any such
senior loans may be amended, extended, and/or refinanced from time to time. As the holder
of a junior deed of trust, the City will be required to enter into a commercially reasonable
subordination agreement with the senior lender(s) detailing the relative rights of the lenders
and confirming the City’s junior position, along with its notice and cure rights and other
rights to take over the Project for the purpose of protecting the City’s investment. The final
form of the leasehold deed of trust to be granted to the City and all related inter -creditor
agreements will be subject to the final approval of all parties thereto.
6.8.4 Repayment. The City Loan will be non-recourse to the Project Entity
and prior to maturity will be payable from, and only from, 75% of the annual excess cash
flow, if any, generated by the Project, in accordance with the waterfall set forth in
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Section 6.13. Payments on the City Loan will be applied first to accrued interest and then
to principal.
6.8.5 Funding of City Funds. The method and procedure for funding of the
City Funds into the Project will be subject to the approval of the City, the P roject Entity,
the Investor and the construction lender. The parties acknowledge: (a) that the delivery of
the City Funds for construction of the Project through the City Loan facility will be
structured in a manner that will permit the construction lender and the Project Entity to
verify the contribution of the City Funds in a manner that does not delay the Project; and
(b) t he City Funds will need to be committed to the Project such that they are not subject
to annual appropriation or the voter approval limitations imposed by Section 20,
Article XX of the Colorado Constitution (i.e., the Colorado Taxpayer’s Bill of Rights).
Subject to these considerations and the requirements of the construction lender, the
Developer acknowledges that the City Loan will be funded on a monthly construction
draws basis, after at least 50% of all other equity and debt sources have been funded. The
City will be provided, for its review, a copy of all monthly construction progress reports
and all monthly construction draws and applications for payment under the Construction
Contract pursuant to standard construction industry practices. The parties acknowledge
some flexibility may be needed in determining how and when the City Loan funds are
contributed to the Project over the course of construction and the City may need to fund
the City Loan pari passu with the construction loan or based on agreed completion
milestones instead of after all other sources have been funded.
6.8.6 Excess Funds. Notwithstanding the total amount of City Funds
committed to the City Loan as of the Closing, the City will be obligated to contribute only
that portion of the City Funds that is actually needed for completing construction of the
Project. All construction and related development expenses for the Project will be
accounted for by the Developer in a standard construction accounting format, with the City
having access during normal business hours upon reasonable prior notice to all accounting
and expense records for the Project. Upon completion of construction, the Developer shall
obtain a cost savings audit with respect to the Project. To the extent the actual costs
incurred to complete development of the Project, as reflect in the cost savings audit, less
the other sources of funds, are less than the amount of the City Funds approved as of the
Closing, the City will be permitted to retain such portion of the City Funds and the principal
amount of the Cit y Loan will be reduced by the amount so retained by the City, and any
excess development funds upon conversion to permanent loan status will be applied to pay
down the City loan.
6.9 Property Management. The property management agent for each developed
Site of the Project (the “Management Agent”) will be a management company selected by the
Developer, with the approval of CHFA and the City, with expertise in managing Tax Credits
projects and ensuring compliance with all LIHTC Laws. The Management Agent will be
responsible to the Project Entity for management of each developed Site in accordance with the
terms of a management agreement to be approved by all applicable parties (the “Management
Agreement”) and including a management plan that will provide for (a) obtaining applications
from eligible households, (b) pre- screening applicants to determine their status as eligible
residents, (c) selecting residents from among eligible applicants; (d) criteria for continued
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occupancy, and (e)obtaining final approval of all applications from APCHA. The City will (along
with the Investor and lenders) have a right to approve a successor Management Agent, if
applicable, which approval will not unreasonably be withheld, conditioned or delayed. The
Management Agent will receive an appropriate management fee under the Management
Agreement in an amount not to exceed the fee allowable under the LIHTC Laws.
6.10 Admissions and Occupancy Policies; Role of APCHA. The City and the
Developer acknowledge that the goal of achieving long-term sustainability of each Site as a mixed-
income community will be enhanced by administrative procedures and terms and conditions of
occupancy that reduce discernible distinctions in maintenance, operation and conditions of
continued occupancy, between the LIHTC Units and the Non-LIHTC Units to the greatest extent
feasible while assuring that the rental of the LIHTC Units complies with the LIHTC Laws. The
selection of applicants for admission to and continued occupancy of all the Units at each Site will
be the function of the Project Entity acting through the Management Agent; provided, that prior to
accepting any tenant application, the Project Entity and Management Agent shall submit the tenant
application file to APCHA for review and approval. APCHA approval of all tenants will be
required in accordance with APCHA’s adopted guidelines. A combined form of application
meeting the requirements of both the LIHTC Laws and APCHA’s adopted guidelines will be
developed for the Project.
6.11 Construction Contract. The Developer will select the General Contractor for
the Project through a selection process meeting the requirements of Section 3.4. Prior to selection
of the General Contractor, the Developer will provide the City with the name of any proposed
General Contractor or a list of proposed General Contractors, and the City may advise the
Developer in writing of any objections it may have with respect to any prop osed General
Contractor, which objections will be reasonably considered by the Developer. Developer will
negotiate a fixed price or guaranteed maximum price contract (the “Construction Contract”)
between the Project Entity and the General Contractor. No less than twenty-one (21) days prior to
execution of the Construction Contract, the Developer will submit a final draft to the City for its
review and approval based on its compliance with this Agreement and the Applicable Public
Housing Requirements, and at the City’s election, based upon a reasonableness analysis conducted
by the City. The Developer will require the General Contractor to (i) conduct the bidding process
for subcontractors in a fashion that ensures that all information pertinent to the eva luation of each
bid is provided to the General Contractor, and (ii) provide the City with full access to all books
and records and other information relating to the procurement process for General Contractor sub-
bids under the Construction Contract during normal business hours on reasonable advance notice.
6.12 Guarantees at the Closing. Developer or an Affiliate of Developer will
execute such guarantees as may reasonably be required by the Investor and third -party lenders
including, as applicable, construction completion, development deficit guarantees, operating
deficit guarantees, tax credit recapture guaranties and environmental indemnities. Developer
reserves the right to negotiate the terms of such guarantees with the Investor and such third -party
lenders on a commercially reasonable basis. The City will not be required to provide guarantees
to the Investor or to third-party lenders or to any other party.
6.13 Cash Flow Waterfall. The net cash flow generated from rental of the Units in
the completed Project after the payment of operating expenses (including deposits required to fund
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or restore any reserve accounts to specified amounts based upon the terms of the senior loan and
the requirements of the Investor) and debt service to the senior lender will, subject to modifications
based upon the terms agreed with the Investor, be distributed in the following order, which will be
incorporated into the applicable Closing Documents (the “Cash Flow Waterfall”):
6.13.1 To the payment of an asset management fee to the Investor, and to pay
other amounts owing to the Investor according to the terms of the approved equity
investment;
6.13.2 To the payment of any unpaid balance of any deferred Development Fee
(which in all events must be paid within 12 years regardless of amount);
6.13.3 75% of the remaining cash flow shall be applied to the payment of the
City Loan; and
6.13.4 All remaining cash flow after required payments on the City Loan shall
be paid 90% to the general partner/manager of the Project Entity in payment of a Project
Entity management fee and 10% to the Investor.
ARTICLE VII. LIHTC PROGRAM SELECTION AND CLOSING
7.1 LIHTC Program Selection. After Final Entitlement has occurred or earlier
upon mutual agreement of the Developer and the City, the Developer, with the cooperation of the
City, will pursue an application for Tax Credits from CHFA. Such application will be for one of
the following: (i) a competitive application for 9% federal Tax Credits, or (ii) a competitive
application for 4% federal Tax Credits plus state Tax Credits; or (ii) a non-competitive application
for 4% federal Tax Credits without state Tax Credits, with the actual Tax Credits being applied for
being determined by the City, in consultation with the Developer, based on the option that requires
the City Funds contribution to be as low as possible while having a reasonable probability of being
approved by CHFA. If a competitive application for 9% federal Tax Credits or 4% federal Tax
Credits plus state Tax Credits is denied by CHFA, the City and the Developer may agree to pursue
a non-competitive application for 4% federal Tax Credits. The City may choose to forego a
competitive application altogether and instead initially pursue a non-competitive application for
only 4% federal Tax Credits. The Developer will not submit an application for Tax Credits to
CHFA until it has been authorized to do so by the City. Once the City has authorized the Developer
to submit an application for Tax Credits to CHFA, the Developer will submit such application as
soon as reaso nably practicable and will also begin work on satisfying the other Closing
Contingencies such that, assuming the Tax Credits application is approved by CHFA and all
Closing Contingencies are actually satisfied, the Closing can occur within a commercially
reasonable time following approval of the Tax Credits application by CHFA.
7.2 Closing Contingencies. The consummation of the Closing will be conditioned
on the satisfaction of all contingencies necessary to commence and pay for construction of the
Project in accordance with the final approved Development Plan, Project Budget, and Project
Schedule in accordance with all applicable LIHTC Laws and Applicable Public Housing
Requirements (“Closing Contingencies”). Such Closing Contingencies include, but may not be
limited to the following items, which reflect certain expectations of the parties:
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7.2.1 Final Entitlement for the Project has been obtained and building permits
have been issued for the commencement of construction of the Project on each Site;
7.2.2 CHFA has allocat ed Tax Credits for the Project in accordance with the
LIHTC Laws and the Tax Credits application submitted by the Developer ;
7.2.3 The Project Entity has entered into the Construction Contract with the
General Contractor meeting all requirements of the LIHTC Laws;
7.2.4 All construction loan terms have been agreed to and the construction
lender for the Project is prepared to begin (subject to the satisfaction of typical draw
conditions) advancing construction loan proceeds for development of the Sites pursuant to
the terms of the construction loan;
7.2.5 The Investor has approved the transaction and is committed to fund its
investment in the Project Entity;
7.2.6 The loan documents for the City Loan have been agreed to and approved
by the City and the Project Entity and the City Funds are adequately appropriated and
committed to the Project;
7.2.7 The Title Company has issued pro forma title insurance policies
acceptable to the Project Entity, the construction lender, and the City and is irrevocably
committed to issue title insurance policies to the Project Entity (as the tenant), the
construction lender with respect to its first position deed of trust on the Ground Leases, and
the City with respect to its junior deed of trust on the Ground Leases to secure the City
Loan;
7.2.8 The successful completion of any Required Remediation Work if
required as a condition precedent to Closing by the Investor or any lender ;
7.2.9 The receipt of all necessary government approvals required for
commencement of construction of the Project in addition to Final Entitlement; and
7.2.10 The form of all other Closing Documents have been approved and/or
agreed to by all applicable parties.
7.3 Closing. Unless this Agreement is earlier terminated pursuant to the applicable
provisions of Article VIII, the Closing will be consummated as soon as practicable following
satisfaction of the all the Closing Contingencies and the City and the Developer will execute all
Closing Documents, subject to approval by the City and the Developer, and take all actions
necessary to consummate the Closing.
ARTICLE VIII. TERMINATION
8.1 Termination by City for Event of Default. Upon written notice from the City
and the expiration of any cure rights set forth in this Section 8.1, any of the following will
constitute an “Event of Default” by the Developer under this Agreement entitling the City to
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terminate this Agreement (subject, in any event, to (1) Events Beyond Control in Section 8.3 or
(2) the determination that performance is infeasible due to the occurrence of events contemplated
in Section 8.4):
8.1.1 Developer becoming insolvent, making an arrangement with or for the
benefit o f its creditors, acquiescing in the appointment of a receiver, trustee or liquidator,
instituting or becoming the subject of any proceeding commenced under any law for the
relief of debtors, or otherwise objectively demonstrating financial incapacity to ca rry out
its obligations hereunder; or
8.1.2 Failure of Developer or an Affiliate of Developer to make payment
when due to a third party contractor or consultant engaged by Developer, resulting in a lien
statement being recorded against any of the Sites unless Developer causes such lien
statement to be released within 45 days after the City delivers a copy of such recorded lien
statement to Developer ; or
8.1.3 Material breach of any representation, warranties, covenants, or
certifications made in this Agreement if such material breach is not cured by Developer
within 30 days after receiving written notice of such breach from the City.
8.2 Termination by Developer for Event of Default. Upon written notice from
the Developer, it will constitute an “Event of Default” by the City under this Agreement entitling
the Developer to terminate this Agreement (subject, in any event, to (1) Events Beyond Control in
Section 8.3 or (2) the determination that performance is infeasible due to the occurrence of events
contemplated in Section 8.4) if the City materially breaches any representation, warranty,
co venant, or certification made by it in this Agreement if such material breach is not cured by the
City within 30 days after receiving written notice of such breach from the Developer.
8.3 Events Beyond Control. Notwithstanding Section 8.1 and Section 8.2, this
Agreement will not be terminated for an Event of Default if the delay in completing the work or
other cause of the subject Event of Default arises from unforeseeable causes beyond the reasonable
control of the Developer or the City, as applicable (“Events Beyond Control”). Examples of Events
Beyond Control include without limitation (a) acts of God or public enemy, (b) acts or failure to
act, or delays in action, of CHFA, APCHA, HUD or other governmental entities in either their
sovereign or contractual capacity, (c) fires, (d) floods, (e) strikes or labor disputes, (f)
unavailability of materials, (g) unusually severe weather, (h) delays of subcontractors or suppliers
at any tier arising from unforeseeable causes beyond the control and without fault or negligence
of the Developer, (i) delay caused by litigation tha t is not between the City and the Developer; or
(j) acts or failure to act by the party that has alleged the party is in default .
8.4 Termination for Infeasibility. In the absence of an Event of Default the
parties will nevertheless still have the right to t erminate this Agreement and/or this Agreement
may terminate automatically in certain circumstances as provided below in this Section 8.4.
8.4.1 Termination Prior to Submittal Date. The City and the Developer
will each have the right to terminate this Agreement upon written notice to the other party
at any time prior to the Submittal Date if such party determines in good faith that the Project
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is infeasible or unachievable or excessively costly based on any of the information received
or developed in the course of advancing the Project . Any termination by the City under
this Section 8.4.1 shall be in its sole discretion. If either party terminates this Agreement
prior to the Submittal Date pursuant to this Section 8.4.1, then the City will be responsible
for reimbursing the Developer for all Developer Pursuit Costs incurred by the Developer
through the date of such termination (even if actual payment by the Developer to an
applicable vendor is made after the date of such termination). Such reimbursement by the
City to the Developer will be paid within 30 days after the Developer submits to the City
a written invoice for all such Developer Pursuit Costs together with reasonable back -up for
the total amount owed (e.g., invoices of vendors or other appropriate support for any
amount claimed) together with proof that the Developer has actually paid all such
Developer Pursuit Costs. For the avoidance of doubt, upon any termination prior to the
Submittal Date, no Management Fee (as described belo w) shall be payable to the
Developer.
8.4.2 Termination After Submittal Date and Prior to Closing. After the
occurrence of the Submittal Date, this Agreement will terminate even in the absence of an
Event of Default under the following circumstances: (a) by t he City upon seven (7) days’
written notice delivered to Developer at any time prior to the Closing if the City determines
in good faith, but in its sole and absolute discretion, that the Project is infeasible or
unachievable or excessively costly, on terms acceptable to the City; or (b) automatically as
of the last day of the Entitlement/Feasibility Period if Final Entitlement for the Project does
not occur by the end of the Entitlement/Feasibility Period unless the City and the Developer
agree in writing to extend the Entitlement/Feasibility Period. If this Agreement terminates
pursuant to this Section 8.4.2, then, subject to Section 8.4.3, the City will (i) reimburse the
Developer for all Developer Pursuit Costs incurred by the Developer through the date of
such termination (even if actual payment by the Developer to an applicable vendor is made
after the date of such termination); and (ii) pay the Developer the accrued “Management
Fee” (as defined in Section 8.4.5 below) for providing the Developer Services until the
effective date of such termination. Such reimbursement of the Developer Pursuit Costs
and payment of the Management Fee by the City to the Developer will be paid within 30
days after the Developer submits to the City a written invoice for the Management Fee and
all such Developer Pursuit Costs together with reasonable back -up for the total amount
owed (e.g., invoices of vendors or other appropriate support for any amount claimed)
together with proof that the Developer has actually paid all such Developer Pursuit Costs.
8.4.3 Termination for Failure of Financing. If the Developer is not able to
secure a loan commitment (in a commercially reasonable form, including standard
qualifications and conditions that must be satisfied as a condition to actual closing of the
loan) from one or more qualified lenders to provide financing for construction of the
Project in accordance with the Project Budget by the end of the Entitlement/Feasibility
Period, then this Agreement will automatica lly terminate unless the Developer and the City
agree to extend the Entitlement/Feasibility Period. If this Agreement terminates pursuant
to this Section 8.4.3, then the Developer will not be entitled receive reimbursement from
the City for any of the Developer Pursuit Costs and will not be entitled to receive any
payment of Management Fee or other consideration from the City in compensation for the
Developer Services.
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8.4.4 Effect of Termination for Infeasibility. If this Agreement terminates
or is terminated pursuant to this Section 8.4, then the parties will be released from a ll
obligations to each other under this Agreement except for the reimbursement and payment
terms contained in Section 8.4.1 and Section 8.4.2 and those terms of this Agreement that
expressly survive termination.
8.4.5 Management Fee. The sole compensation to Developer for its services
through the Entitlement/Feasibility Period (ot her than reimbursement of Developer Pursuit
Costs as provided above and the Developer Fee pursuant to Section 3.3) shall be a
management fee (the “Management Fee”) calculated as provided in this Section 8.4.5, and
payable as provided in this Section 8.4. The “Management Fee” means a management fee
equal to the lesser of: (x) $20,000 per calendar month (prorated for any partial month based
on the actual number of days in such month) for the period of time beginning on the
Submittal Date and ending on the day on which this Agreement terminates pursuant to this
Section 8.4, (y) 20% of the Developer Fee that would be earned by the Developer based on
the most recent approved Project Budget if the Closing occurred and the Project were
consummated in accordance with the most recent approved Development Plan and Project
Budget, or (z) $500,000. The Management Fee shall accrue and shall be payable only as
provided in Section 8.4.2; provided, that if the Closing occurs, the accrued Management
Fee shall be waived in lieu of Developer receiving payments of the Developer Fee as
provided in Section 3.3.
8.5 Delivery of Work Product to City. If this Agreement is terminated or
terminates pursuant to Section 8.1 or Section 8.4, the Developer will discontinue all services
affected in pursuit of the Project and deliver to the City, without recourse to the Developer, copies
all written information, reports, papers, and other materials concerning the Sites and the Project
accumulated or generated in performing the Developer Services under this Agreement, but
excluding any internal proprietary financial information concerning the Investor, the Developer or
any Affiliate of the Developer. If this Agreement is terminated pursuant to Section 8.4.1 or
Section 8.4.2, then Developer will not be obligated to deliver such materials to the City until the
City has paid the Developer the amounts to which it is entitled pursuant to Section 8.4.1 or
Section 8.4.2, as applicable. The terms of this Section 8.5 will survive the termination of this
Agreement.
ARTICLE IX. MISCELLANEOUS
9.1 Term. This Agreement will continue in effect until it is terminated pursuant to
its terms or consummation of the Closing. Upon consummation of the Closing, the terms of this
Agreement will merge with and be superseded by the terms of the Closing Documents.
9.2 Notices. Any notice or other communication given or made pursuant to this
Agreement will be in writing and will be (i) delivered personally or by courier, (ii) emailed, (iii)
sent by overnight express delivery, or (iv) mailed by first class mail, to a party at its respective
address set forth below (or at such other address as will be specified by the party by like notice
given to the other party):
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If to City: City of Aspen
Attn: Chris Everson, AH Project Manager
130 S. Galena St.
Aspen, CO 81611
Email: chris.everson@cityofaspen.com
With a copy to:
City of Aspen
Attn: James R. True, Esq., City Attorney
130 S. Galena St.
Aspen, CO 81611
Email: jim.true@cityofaspen.com
If to Developer: Aspen Housing Partners, LLC
Attn: Jason Bradshaw
228 Eastwood Road
Aspen, CO 81611
Email: jebradshaw@mac.com
With a copy to:
Waas Campbell Rivera Johnson & Velasquez LLP
Attn: Bart Johnson, Esq.
420 E. Main St., Ste. 210
Aspen, CO 81611
And:
SCG Development
Attn: Stephen Wilson
8245 Boone Blvd., Suite 640
Vienna, VA 22182
Email: spw@stratfordcapitalgroup.com
All such notices and other communications will be deemed given on the date of personal or local
courier delivery, email transmission confirmed by a delivery receipt , delivery to overnight courier
or express delivery service, or deposit in the United States Mail, and will be deemed to have been
received (i) in the case of personal or local courier delivery, on the date of su ch delivery, (ii) in the
case of telecopy, upon actual receipt, (iii) in the case of delivery by overnight courier or express
delivery service, on the date following dispatch, and (iv) in the case of mailing, on the date
specified in the return receipt therefor.
9.3 Further Assurances. Each party will execute such other and further documents
as may be reasonably necessary or proper for the consummation of the transaction contemplated
by this Agreement.
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9.4 Assignment. Neither this Agreement nor any part or subpart of this Agreement
will be assignable by Developer, except upon written consent of the City.
9.5 Counterparts. This Agreement may be executed in counterparts, each of which
will be deemed original, but all of which, together, will constitute one instrument.
9.6 Interpretation and Governing Law. This Agreement will not be construed
against the party who prepared it but will be construed as though prepared by both parties. This
Agreement will be construed, interpreted, and governed by the laws of the State of Colorado.
9.7 Attorneys’ Fees. If the Developer or the City files a suit to enforce this
Agreement or any provisions contained herein or any legal dispute arises from this Agreement
between the parties, the substantially prevailing party in such suit will be ent itled to recover, in
addition to all other remedies or damages, reasonable attorneys’ fees and court costs incurred in
such suit.
9.8 Severability. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable such portion will be deemed severed from
this Agreement and the remaining parts will continue in full force as though such invalid or
unenforceable provision had not been part of this Agreement.
9.9 Final Agreement. Unless otherwise expressly provided herein, this Agreement
constitutes the final understanding and agreement between the parties with respect to the subject
matter hereof and supersedes all prior negotiations, understandings and agreements between the
parties, whether written or oral. This Agreement may be amended, supplemented or changed only
by a writing signed or authorized by or on behalf of the party to be bound thereby.
9.10 Waivers. The failure of either party to insist in any one or more cases upon the
strict performance of any of the other party’s obligations under this Agreement or to exercise any
right or remedy herein contained will not be construed as a waiver or a relinquishment for the
future of such obligation, right or remedy. No waiver by either party of any provision of this
Agreement will be deemed to have been made unless set forth in writing and signed by that party.
9.11 Successors. The terms, covenants, agreements, provisions, and conditions
contained herein will bind and inure to the benefit of the parties hereto, their successors and
permitted assigns.
9.12 Headings. The headings in this Agreement are inserted for convenience only
and will not be used to define, limit or describe the scope of this Agreement or any of the
obligations herein.
9.13 Construction. Whenever in this Agreement a pronoun is used, it will be
construed to represent either the singular or the plural, either the mascu line or the feminine, as the
case will demand.
9.14 Certain Approvals. Unless otherwise expressly stated, all approvals or
consents required of either party hereunder will not be unreasonably withheld, conditioned or
delayed, and will be in writing.
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9.15 Binding Effect. This Agreement will inure to the benefit of, and will be binding
upon, the City’s successors and assigns except as otherwise provided in this Agreement. This
Agreement will inure to the benefit of, and will be binding upon, Developer’s successors an d
assigns so long as the succession or assignment is permitted pursuant to the terms of this
Agreement.
9.16 Cumulative Rights. Except as expressly limited by the terms of this
Agreement, all rights, powers and privileges conferred hereunder will be cumulative and not
restrictive of those provided at law or in equity.
9.17 References to this Agreement. All references to this Agreement will include
all documents and exhibits incorporated by reference.
9.18 No Commissions. The parties covenant and agree that no brokerage
commission, finder’s fee, or similar compensation is due to any third party in connection with this
Agreement or will be owed upon the Closing. To the extent allowed by applicable law, the City
agrees to indemnify and hold the Developer and the Project Entity harmless from and against any
loss, liability, damage, cost or expense (including, without limitation, court costs and reasonable
attorneys’ fees) paid or incurred by the Developer or the Project Entity by reason of any claim to
any broker’s, finder’s or other fee in connection with this transaction by any party claiming by,
through or under the City. The Developer agrees to indemnify and hold the City harmless from
and against any loss, liability, damage or expense (including, without limitation, c ourt costs and
reasonable attorneys’ fees) paid or incurred by the City by reason of any claim to any broker’s,
finder’s or other fee in connection with this transaction by any party claiming by, through or under
the Developer or the Project Entity. The parties’ obligations under this Section will survive
Closing or any termination of this Agreement and remain fully enforceable thereafter.
[remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement by their duly
authorized signatories on or as of the date first written above.
CITY:
City of Aspen, Colorado, a Colorado home rule
municipal corporation
By: ________________________________
Steven Skadron, Mayor
Attest:
Linda Manning, City Clerk
APPROVED AS TO FORM:
James R. True, Esq., City Attorney
DEVELOPER:
Aspen Housing Partners, LLC, a Colorado limited
liability company
By: ________________________________
Jason Bradshaw, Manager
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A-1
Exhibit A
Description of Sites
517 Park Circle, Aspen, Colorado:
Lot 1,
Re-Subdivision of Lots 1 and 2 of the WAGAR/DETWEILER SUBDIVIS ION, according to the
Plat thereof recorded February 8, 2006 in Plat Book 77 at Page 41 as Reception No. 520689.
COUNTY OF PITKIN, STATE OF COLORADO
802 W. Main Street, Aspen, Colorado:
Lots Q, R, and S,
Block 12,
CITY AND TOWNSITE OF ASPEN
COUNTY OF PITKIN, STATE OF COLORADO
488 Castle Creek Road, Aspen, Colorado:
Lots 1 and 2,
488 CASTLE CREEK ROAD FINAL P.U.D. AND LOT SPLI T SUBDIVISION EXEMPTION
according to the Plat thereof recorded September 27, 2006 in Plat Book 81 at Page 48 as
Reception No. 529046.
COUNTY OF PITKIN, STATE OF COLORADO
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Exhibit B
Current Development Plan
AHP will submit, in a phased approach, three separate land use applications for the
development of 802 West Main St, 517 Park Circle and 488 Castle Creek Rd. Similarly,
construction of the projects will be executed in a phased plan under three separate
construction contracts. It is anticipated that the buildings will commence on 30-45 day
intervals.
The proposed unit mix include one and two bedroom units (71% one bedrooms / 29% two
bedroom) with one parking space per bedroom at each location with the exception of Castle
Creek which will have .84 parking spaces per bedroom. See table below :
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AHP, with input from City staff and APCHA, has assumed the category mix outlined in the table
below. This mix was used in presentations during the public outreach process as well as the
financial budgeting attached as Exhibit ___. The City of Aspen loan in each of the financing
options is based on these assumptions.
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{A0099572 / 2 } C-1
802 West Main Street
Southeast perspective from corner of Main & 7th Streets
Northeast perspective from approach on 7th Street
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{A0099572 / 2 } C-1
488 Castle Creek Road
View from Castle Creek Road
View from Northern Approach
UP P52
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{A0099572 / 2 } C-1
517 Park Circle
View from Park Circle
View from the West
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Exhibit C
Current Project Schedule
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Today's Date 07/18/17 Timeline Start Dec-15 90 Day Periods
Category Process Start Date End Date Days Dec-15 Mar-16 Jun-16 Sep-16 Dec-16 Mar-17 Jun-17 Sep-17 Dec-17 Mar-18 Jun-18 Sep-18 Dec-18 Mar-19 May-19 Aug-19 Nov-19 Feb-20
Total Development Timeline 12/17/15 12/29/19 1,473 2 2 4 4 2 2 6 6 8 14 12 61 83 20 2 2 4 4
I. Pre-Development 12/17/15 08/31/18 988 1 1 2 2 1 1 3 3 2 3 2 1 0 0 0 0 0 0
RFP Response Preperation 12/17/15 03/18/16 92 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Aspen RFP Review and Approval 03/19/16 08/02/16 136 0 0 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Public Outreach Process 08/02/16 05/30/17 301 0 0 0 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0
Land Use Application Preparation 05/30/17 08/14/17 76 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0 0 0
Architectural Design/GC Review/Pricing 05/30/17 08/08/17 70 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0 0 0
Land Use Review and Approval 07/05/17 01/02/18 181 0 0 0 0 0 0 0 1 1 1 0 0 0 0 0 0 0 0
Building Permit Preparation 10/02/17 03/31/18 180 0 0 0 0 0 0 0 0 1 1 1 0 0 0 0 0 0 0
Building Permit Review 01/03/18 08/31/18 240 0 0 0 0 0 0 0 0 0 1 1 1 0 0 0 0 0 0
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
II. Financing 10/01/17 08/31/18 334 0 0 0 0 0 0 0 0 2 4 4 2 0 0 0 0 0 0
Prepare/Submit App for CHFA for Bonds, 4%TCs/State LIHTC 10/01/17 01/01/18 92 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0
CHFA 9% LIHTC or CO State LIHTC review/award 01/02/18 04/02/18 90 0 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0
Prepare/Submit FHA 221(d)4 Construction to Perm Loan App 10/01/17 01/01/18 92 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0
FHA Review 221(d)4 Application and issue Firm Commitment 01/01/18 05/01/18 120 0 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0
Finalize Financing Documents and Close on Mortgage Loans 05/01/18 08/31/18 91 0 0 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0
Underwriting - Federal and State LIHTC Equity 04/02/18 08/31/18 120 0 0 0 0 0 0 0 0 0 0 1 1 0 0 0 0 0 0
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
III. Construction/Lease-up 08/31/18 12/29/19 485 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 2 2
Construction- 3 Properties (PHASED)08/31/18 11/29/19 455 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 1
Lease-up of Apartment Units 08/31/19 12/29/19 120 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1P55VI.b
{A0099572 / 2 } E-1
Exhibit D
Current Project Budget
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Developer Pursuit Costs To Date
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9% AHTC Option
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4% + State AHTC Option
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4% AHTC Option
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Exhibit E
Preliminary List of Approved Consultants
Project Architect: David Johnston Architects
Planning Consultant: Method Planning + Development
General Contractor: Shaw Construction
Landscape Architect: Connect One Design
Civil Engineer: Roaring Fork Engineering
Geotechnical Engineer: HP Kumar
Traffic Engineer: McDowell Engineering, LLC
Environmental Consultant: HP Kumar
Surveyor: Peak Surveying, Inc.
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MEMORANDUM
TO: Mayor and City Council
FROM: Linda Manning, City Clerk
DATE of MEMO: July 18, 2017
MEETING DATE: July 24, 2017
RE: ARC Advisory Committee Appointments
REQUEST OF COUNCIL: The ARC Advisory Committee would like Council approval of a
new general member, Kelly Boggs and a new alternate general member, Sam Louras.
BACKGROUND: The Aspen Recreation Center Advisory Committee was established by
Resolution #53, Series of 2003 to assist the Council and its staff in the use, operation and
maintenance of the physical plant, and the efficient operation of the programs and services
offered within the ARC and the coordination with the Ice Garden.
The Committee is comprised of four members from SPARC, one member appointed by the
Youth Center and two members appointed by City Council. All members must be residents of
Pitkin County for at least one year prior to appointment. Two members appointed by the
SPARC board must be City of Aspen residents at the time of their appointment as well as during
their term as a member of the Advisory Committee. The City Council appointees get further
refined with one member representing the interests of the users of the swimming facilities at the
ARC. The other member represents the general public interests and concerns relative to the
entire ARC facilities including the ice rink, swimming facilities, youth center operations,
climbing wall and other recreational amenities.
ARC staff advertised the opening for several weeks at the facility as well as on the website. The
only applications that were received were from Boggs and Louras. Both applicants were
interviewed by the Committee.
RECOMMENDED ACTION: By adopting the Consent Calendar, Council will make the
following board appointments. Kelly Boggs - General Member. Sam Louras – General Member
Alternate.
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Regular Meeting Aspen City Council July 10, 2017
1
SCHEDULED PUBLIC APPEARANCES –Proclamation Don Sheeley Sailing School ............................ 2
CITIZEN COMMENTS ............................................................................................................................... 2
COUNCILMEMBERS COMMENTS .......................................................................................................... 2
CONSENT CALENDAR ............................................................................................................................. 3
Resolution #102, Series of 2017 – Amendment to contract to analyze the potential use on In-Situ
Reservoirs as a component of Aspen’s Integrated Water System ................................................................. 4
Resolution #99 – IGA with Pitkin County for Management of Buttermilk parking lots ...................... 4
Board Appointments ............................................................................................................................. 4
Minutes – June 26, 2017 ....................................................................................................................... 4
ORDINANCE #19, SERIES OF 2017 .......................................................................................................... 4
RESOLUTION #101, SERIES OF 2017 – Mandated Sign Code Policy Resolution ................................... 5
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2
At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Mullins, Frisch,
Hauenstein and Myrin present.
SCHEDULED PUBLIC APPEARANCES – Proclamation Don Sheeley Sailing School
Mayor Skadron read the proclamation. Don moved here in 1970. He started the sailing classes 47 years
ago at Ruedi reservoir. Don served 25 years on the Sister Cities committee, CCLC and on ACRA. He
proclaimed in Don’s honor that the sailing program be known as the Don Sheeley Sailing School. Jill
and Courtney accepted the Proclamation. Mayor Skadron said Don was a community asset and he is
missed.
CITIZEN COMMENTS
1. Ruth Harrison asked what happened to the BMC building. Steve Barwick, city manager, said it
is owned by the affordable housing fund so it will be housing at some point. It will be quite a
while yet. We have several other housing projects that will probably come first. She said she
does not understand how a fine for a vicious dog is $50 and one for a dog off leash is $100. Jim
True, city attorney, said we have a code for viscous dogs up to destroying the dog. The minimum
penalty, I don’t know off hand. There are progressive penalties for vicious dogs. Ms. Harrison
said the Maker and Place in the old hub, it would be fabulous if the City buys that property and
makes it in to affordable space for the community to open businesses.
2. Peter Greeney said that he is supporting Mitch on the Buttermilk parking plan and opening the
parking lot to RVs.
3. Toni Kronberg said she had a float in the parade asking to vote on the city hall building. She also
asked about charging to park at Buttermilk.
COUNCILMEMBERS COMMENTS
Councilman Hauenstein said it was a very busy 4th. He has received some complaints over the chaos in
one of the bars on the malls. We need to keep in mind the balance of vitality and peaceful over chaos.
Councilman Myrin said the top ten list for Council is the 27th and 28th. Get your idea to us. August 2nd is
a settlement conference for the dams. What is the process to select two elected officials to go to that. I
want to be a part of that. Mayor Skadron said you are in opposition and there are already 10 opposers
going, it makes no point sending you. I will be going and Ann will be going. Councilwoman Mullins
said for consistency I think I should go again. There are already 10 people against the city position, I
agree with the Mayor. Mr. True said my position has been clear that it will be difficult to have three or
more members attending unless we go into executive session then it gets complicated. I don’t recall a lot
of controversy around this last time. Councilman Myrin made a motion for Steve and Ann going and I
will probably vote against this. I think it should be a formal process. Councilman Frisch said it is not
legally required to take formal action to send two people to this. The Mayor has unwritten powers on
behalf of the city council. Mr. True said you are exactly right. Mayor Skadron said Bert has made a
motion to support Steve and Ann. Councilman Frisch seconded the motion. Councilman Hauenstein said
regardless of what happens with the referee, if we are depending on two people reporting back on what
went on, I feel comfortable with those chosen. Ann, Jim and Margaret and three to four other staff
members are there. There are a lot of people bringing back the information. All in favor except
Councilman Myrin. Motion carried.
Councilman Frisch said he had a great trip to Morocco. It is good to be back.
Mayor Skadron gave thanks to everyone who pitched in on the 4th. He gave condolences to the family of
Richie Cohen. There was no more of a staunch defender of the Wheeler than Richie.
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CONSENT CALENDAR
Reso #102 – contract amendment for In-Situ reservoirs
Margaret Medellin, utilities, said this is amending the existing contract with Deere and Ault for in-situ
reservoirs to do some geo-technical work.
Torre asked about the cost and applicability. It sounds like a great idea. He also asked about capacity.
The target does not seem clear enough. Dave Hornbacher, utilities, said on capacity Headwaters will be
back tomorrow to speak on that. We are working concurrently on different types of storage and the
timing of the court case is driving it. Councilman Hauenstein said he is concerned that a contract of this
size did not go through a bid process. He realized there are a few extenuating circumstances as to why it
is not a sole source. There is a familiarity and comfort level with Deer and Ault and the charges are in
line. We are in the process of determining what our storage needs are and looking at options. In the
future, he would like to have a definition of the problems, needs and demands before we spend a lot on
the solutions to know what the problems are. Given we are actively pursuing other sites he would like to
have a competitive bid process.
Councilman Frisch said for 50 some years, city hall has turned in a piece of paper to request an extension
of water rights. This is the first time we have asked how much do we need. We also asked where are we
going to keep it. We have nine hours of water storage if no one else moves to town. That is not prudent
water management. I don’t think it is fair to say things are backwards. We are trying to tackle two really
big things. That brings up carrying capacity, evaporation issues and other things. We are on the right
track to say how much do we need and where are we going to store it. There are a lot of moving parts.
This is not a new contract but an amendment to an existing one. The scope that is coming from the
community is growing. I think it would be shortsighted not to work with the same people. The
community is asking for more. I think it is really important to do this.
Councilwoman Mullins stated this is a complicated problem. The need, the storage, and the supply and
the risk factors we are willing to accept and the compromises we are willing to make. We need to track
all three factors at the same time. This is an add to an existing contract. It is cost effective to use the
same consultant. She supports what is presented. We are moving along in the correct direction.
Councilman Myrin asked if we are pumping to a treatment facility. Ms. Medellin said the details are yet
to be determined. This phase is just to see if the geology is appropriate. Councilman Myrin asked about
the exchange concept, could we purchase water rights on the Roaring Fork. Mr. Hornbacher said we are
looking at alternative transfer mechanisms with Wilderness Workshop. It is one of several options we are
looking at. Councilman Myrin said he would like to know more about that. He is not convinced we have
such a low number of storage hours. Maybe we don’t need the where are you going to put it.
Reso #99 – Buttermilk Parking lot IGA
Mitch Osur, parking, said the lot is owned by Pitkin County. Area A mass transit is free at all times as is
lot D. C would be for construction staging at 40 dollars per day for four spaces.
Councilman Hauenstein said the argument is that for construction vehicles that there will always be them
coming in to town for the need for tools coming in to town. He would encourage seeing the pickup trucks
not coming in to town. Jessica Garrow, community development, replied the CMPs address this. They
do tend to carpool. There is an idea if we could do some staging at construction sites.
Councilwoman Mullins said we have talked for quite a while for better utilizing the lot. How did you
come up with how to use the lot and what outcome. Mr. Osur said we want to see less vehicles coming in
to town. We will keep the lot flexible. The number one request we get is where can I park my RV. Now
we can tell them at Buttermilk. Councilwoman Mullins asked what happens when Buttermilk opens in
December. Mr. Osur replied it goes back to being managed by Buttermilk and the ski company.
Councilman Hauenstein said could C get moved to the Intercept lot in December. Mr. Osur replied it
would go against the agreement with CDOT.
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Councilman Frisch said we have the Intercept lot, Buttermilk and the airport. It is great the lot has been
sitting there empty and it is a good match. He said he hopes Snowmass can do something with their
empty lots. Six dollars is the cheapest RV parking anywhere. He is glad we are trying things.
Councilman Myrin asked if lot D can be next to A to make it easier if trail users are after work. Mr. Osur
said our thought was people would want to park near the trail head if they were using the trail.
Councilman Myrin asked where will the towed cars be towed. Mr. Osur replied the landfill or Shawn’s
towing. Councilman Myrin said the rates are plus or minus 25 percent, do we have the ability to change
it. Mr. Osur said we can do anything we want, we just need to ask the county. Councilman Myrin asked
for the airport lot, who owns it. Mr. True replied he assume the county still owns it. Councilman Myrin
said he would rather see it as construction staging then rental car. He also said he would support the
configuration now with D against the mountain.
Board Appointments – Mayor Skadron thanked Andrew Sandler and Collin Frank for joining the Board
of Adjustment and Scott Kendrick and Roger Moyer for being appointed to the Historic Preservation
Commission.
· Resolution #102, Series of 2017 – Amendment to contract to analyze the potential use on In-Situ
Reservoirs as a component of Aspen’s Integrated Water System
· Resolution #99 – IGA with Pitkin County for Management of Buttermilk parking lots
· Board Appointments
· Minutes – June 26, 2017
Councilwoman Mullins moved to adopt the Consent Calendar; seconded by Councilman Frisch. All in
favor, motion carried.
ORDINANCE #19, SERIES OF 2017 – 211 W Hopkins Avenue, Amendment to Ordinance #29,
Series of 2009
Councilwoman Mullins recused herself as she is a neighbor.
Amy Simon, community development, stated the last 20 years the City has had conversation of post war
era properties and how to preserve them. We have the Aspenmodern program now. In 2009 we were less
certain. The owners of this property decided to enter into discussion and applied for a demolition permit.
Ordinance 29, Series of 2009 was adopted. It granted a demolition permit and gave them 10 years to act
on it. In exchange, they were required to talk to the city to try to come up with a different solution prior
to demolition. That agreement is going to expire. It has been the same owners since 1956. Staff has an
interest in seeing the home preserved. The owners do not want pressure. They are concerned about the
deadline. They would like to allow another 10 years on the demo permit. It will still have a 90 day
cooling off period to talk to the owners. If a negotiation takes place it will be under today’s code. There
is a clause in the 2009 ordinance to allow Council to involuntary designate the property. That is putting
pressure on the applicant. That has been struck in tonight’s version of the ordinance. Staff recommends
Council adopt the amended ordinance.
Mitch Haas, representing the applicant stated several children of the original owners own the property and
are unsure of what they want to do with the property. In 2009 there was an application for demolition to
try to preserve their rights. Now they are closer to the 10 year date and are starting to feel pressure as to
what to do with the property. They are still unsure what to do and would rather leave it be and continue
to use the property as is. The thought was to keep the ordinance in place. It is also in the city’s interest to
keep the ordinance and permit alive. They are concerned with the possibility of the city still using the
involuntary designation. The city still has the guarantee of the 90 day cooling off. It is a pretty elegant
solution where the family may not be on the same page.
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Councilman Myrin asked why are we rewriting the ordinance on the fly. Mr. Haas stated he didn’t see
the packet until Friday afternoon. Mr. True replied I do see his dilemma. Councilman Myrin said the
only thing this changes on the city side is this is the only house in the city excluded. I don’t see any
downside. He would support this as written or as Mitch and Jim come up with.
Councilman Frisch said he did watch the first reading. I appreciate the owners are trying to figure what to
do. The value of the property is getting more valuable every day. The upside for the city is we might
keep a pan abode. I thought we are just kicking the can down the road. We don’t give people 10 year
vesting rights. Ms. Simon said we certainly could pick a different length of time. Councilman Frisch said
he is just wondering if 10 years is really needed and not five. Ms. Simon said she thinks we have good
incentives where multiple family members are involved. Councilman Myrin said the circumstances are so
remote of Council restricting a pan abode in town versus vesting rights.
Mayor Skadron said Bert, this is exactly opposite every development argument you have ever made.
Councilman Myrin said if this went on the market tomorrow it would say it cannot be demolished without
talking to the city for 90 days. Mayor Skadron said why not say make it five years. Councilman Myrin
said he would support five but I support 10 because the possibility of us doing something like mandatory
designating all of these is not going to happen.
Councilman Frisch said he is having a hard time seeing why people need more than half a decade. Ms.
Simon said the family has owned the property for 60 years. They are not in a rush to do something.
Councilman Frisch said for the first 30 it wasn’t worth anything. Councilman Myrin said he thinks that is
fair. Mr. Haas said we did not propose a number of years. We would be fine with five.
Councilman Hauenstein said he does not see how this going away impacts the family. The only thing I
see is the 90 day discussion with the family. I don’t like one off ordinances. I don’t see if this goes away
it changes in any way. They still have the right to control their property. At this point I don’t see the
need for it. Councilman Frisch said if there is nothing done I would recommend they start thinking of
getting rid of the house. They are trying to argue they need some time to figure it out. If we don’t extend
this the chances of the home staying are lessened. Councilman Hauenstein asked why. Councilman
Frisch replied as soon as tomorrow what Bert talked about could happen. Ms. Simon said the ordinance
says if they don’t demolish by 2019 the city can involuntarily designate.
Mayor Skadron said the real concern is the inconsistency of the 10 year vesting with every other vesting
we have granted. He would be more comfortable with five.
Mr. True stated he can fix the wording changes Mitch brought up. Section 1 – amended as follows, 10
year to five years.
Section 1 paragraph 2 unchanged.
Section 1 paragraph 5 deleted.
Section 1 paragraph 6 deleted.
Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public
comment.
Councilman Myrin moved to adopt Ordinance #19, Series of 2017 with amendments. Seconded by
Councilman Frisch. Roll call vote. Councilmembers Hauenstein, yes; Frisch, yes; Myrin, yes; Mayor
Skadron, yes. Motion carried.
RESOLUTION #101, SERIES OF 2017 – Mandated Sign Code Policy Resolution
Councilwoman Mullins returned to the meeting.
Phillip Supino, community development, stated this is to amend the sign code in response to Reed vs
Town of Gilbert supreme court finding. It is only to targeted areas of the sign code. The policy
resolution is step two in the three step code amendment process. Public outreach included 48 survey
respondents, 132 aspen community voice visits, direct outreach to CC, C1 and SCI zones, direct outreach
to stakeholder groups like CCLC, board of realtors, HPC and P&Z.
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Content neutrality means sign regulations cannot make distinctions between uses. Distinction between a
gas station sign and a restaurant sign now must be distinguished as a pole sign. If you must read the sign
to determine its content it is not content neutral. What can be regulated includes size, materials, lighting,
moving parts, portability, location, public property, fixed versus changeable copy, time restrictions and
government copy.
Previous direction from Council includes:
Comply with the requirements of Reed
Maintain the status quo to the extent possible
Allow for non commercial speech on public property
Limit the proliferation of yard signs
Limit the proliferation of sandwich board signs
Ensure no sign type becomes a nuisance
The objectives are to achieve all the Council direction and ensure Reed compliance while maintaining the
status quo.
Councilman Hauenstein said he is confused on marijuana business wraps and business wraps in general.
Mr. Supino said full coverage window wraps in part to comply with state marijuana separation
requirements are different from window decal allowances that are presently in the code. A business can
cover up to 50 percent of a window with up to 25 percent of commercial content. These amendments are
an attempt to move away from blacked out coverage with some type of vinyl. Councilman Hauenstein
said on banners and licensing would it need to be content neutral. Mr. True said it would be our property
and the City’s statements. They would have to provide us with the banners and it becomes City speech.
Councilman Hauenstein said for menu boxes, can they be limited to restaurants. Ms. Garrow said that is
part of the problem. We can’t call out on uses.
Councilwoman Mullins said one of the concerns last time was the proliferation of sandwich boards. Mr.
Supino mentioned the ability to display with the second tier space. We can connect the regulation to that.
You would see a change in the overall number of signs. It is difficult to predict the overall number in
signs.
Councilman Myrin said he would like to keep the historic signs. He asked about construction site signs
and if they could be included in government signs as to what the building is going to look like when it is
done. M.s Garrow said we are trying to work through that with the consultant. There is quite a bit
required.
Councilman Frisch said he would support some type of government required construction site signage in
small font. We are on the right track with sandwich boards. The argument with television displays is
they are not signs. We are on the right track.
Councilman Myrin said he had an email about wrapping the sound barriers at construction sites. Ms.
Garrow said they are an issue. She said we may be able to distinguish between ones wrapped in aspen
trees calling it art versus ones wrapped in PCL which would be advertising for the company.
Mayor Skadron said will the real estate signs be a consistent size. Can they be smaller. Mr. Supino said
you have that power. Ms. Garrow said if you change them for real estate signs you change them for all
yard signs. Mr. Supino said we may change the code for election season to allow for additional yard
signs. Mayor Skadron said sandwich boards will remain the status quo, we did that because the second
floor issue. Councilwoman Mullins said if we can tie them to the second tier and maintain control of
them that’s good. Ms. Garrow said we can provide some options on what the sandwich boards look like.
Mayor Skadron said vehicle signs for right now are the status quo. Mr. Supino said our consultant feels
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communities don’t have the ability to distinguish between the wienermobile and John Smith construction.
They can say the wienermobile can’t park down town overnight and stay for two days.
Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public
comment.
Councilman Myrin moved to adopt Resolution #101, Series of 2017; seconded by Councilman Frisch.
All in favor, motion carried.
Councilman Frisch moved to adjourn at 7:30p.m.; seconded by Councilwoman Mullins. All in favor,
motion carried.
Linda Manning
City Clerk
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POLICY MEMORANDUM
TO: Mayor and City Council
FROM: Mike Kosdrosky, Executive Director
DATE: July 5, 2017
MEETING DATE: July 24, 2017
RE: Notice of Call-Up by APCHA Board of Directors to City Council Adopting
Amendments to the Aspen/Pitkin County Guidelines
On June 21, 2017, the APCHA Board of Directors approved at the Public Hearing APCHA Resolution No. 2
(Series of 2017), Adopting Amendments to Part II, Sections 5, 6 and 7, and Adding Appendix L to the
Aspen/Pitkin Employee Housing Guidelines pertaining to Categories 1-7 Income Limits and Use of Area
Median Income (AMI). This amendment does the following:
1. Establishes single qualification system for determining Maximum Gross Incomes for Categories
1-5 for rental and ownership inventory;
2. Establishes a methodology for determining Maximum Gross Incomes and redefining Target
Household Income Levels based on Area Median Income (AMI);
3. Eliminates Categories 6 and 7 and incorporates them into Category 5; and
4. Expands rental household income categories from four (4) to five (5) categories.
The Fifth Amended Intergovernmental Agreement allows the Pitkin County Board of County
Commissioners (BOCC) and the City of Aspen City Council (Council) a 60-day period to call-up any policy
changes approved by the APCHA Board. This memo provides notification to Council for their Regular
Meeting on July 24, 2017.
ISSUES
· Eight categories (including RO) are more than any peer community, adding to the administrative
complexity of the program. So many categories are not needed to maintain economic diversity
throughout the program.
· The number of categories varies depending on the program (4 for rentals, 7 for ownership, plus
RO for both), which complicates converting to alternative methods for establishing income
categories.
· Income maximums for each Category of housing differ depending upon whether a household is
applying for a rental or ownership unit. This is unique among affordable housing programs,
including peer communities, which use a single standard based on household size. APCHA’s dual
qualification system creates “discriminatory effect” concerns that likely violate the Fair Housing
Act.
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· The current income categories were derived from a combination of five sources used in a
difficult-to-replicate methodology last calculated over 15 years ago. A new system is needed,
which can be easily updated for simplification, transparency, and compatibility with potential
State/Federal standards, to set prices and rents that will remain affordable over time.
· Current Maximum Gross Incomes are no longer representative of actual area incomes.
· Prices are not determined consistently based on an adopted standard for affordability. In some
Categories, rents and prices are too high, about right, or too low relative to income, yet
affordability is a clear objective of the Housing Program.
· APCHA’s current income-calculation method results in a program that does not consistently
serve the same target income market each year (i.e. the relationship between prices and income
over time is inconsistent). In some years, defined incomes target a higher income market and in
some years, target a lower income market.
· According to the 2016 Policy Study of APCHA’s Affordable Housing Guidelines, affordability (i.e.
cost-burden) is an issue for households earning near the minimum incomes in lower income
(Category 1) and lower moderate income (Category 2) categories.
· Affordability for moderate and higher income categories is not an issue (Category 3 and above).
The housing program may be over-subsidizing households in these categories, creating serious
equity questions.
BACKGROUND
The March 13, 2017, APCHA Policy Memorandum to the Board addressed and explored the issues of
APCHA’s current dual qualification system. Preliminary staff recommendations from that memorandum
were:
1. Change the number of Categories for both the rental and ownership programs to 5 Categories
plus RO;
2. Convert Category Maximum Gross Incomes to AMI target incomes for each Category; and
3. Define and adopt an Affordability Standard in the Housing Guidelines.
On April 19, 2017, APCHA staff provided the Board with four detailed scenarios to consider:
· Scenario 1: Keep Current Methodology (Do Nothing Option);
· Scenario 2: Translate Incomes to AMI, but keep Dual Qualification System (4 Rental, 7
Ownership Categories plus RO);
· Scenario 3: Port Incomes to AMI, switch to a Single Qualification System for both Rental and
Ownership, and adopt five (5) Income Categories using Consultant Proposed AMI Ranges);
and
· Scenario 4: Port Incomes to AMI, switch to a Single Qualification System for both Rental and
Ownership, and adopt five (5) Income Categories (using Staff Proposed AMI Ranges).
Staff recommended adopting Scenario 4 because it most closely met the following criteria used for
evaluating program changes:
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· Simplicity
· Transparency
· Consistency
· Ease of transition
· Portability
· Overall Housing Goals
The Board directed staff on May 3rd to move forward with First Reading and public hearings to consider
Scenario 4.
The Board approved Resolution No. 02 (Series of 2017), Adopting Amendments to the Aspen/Pitkin County
Employee Housing Guidelines Pertaining to Categories 1-7 Income Limits and Use of Area Median Income
(AMI), at a Public Hearing held June 21, 2017.
DISCUSSION
Because the current system cannot be directly translated into HUD AMI ranges, any transition would
affect existing conditions, current and future households served, and income limits, rent, and sales
prices within Categories. These tradeoffs need to be considered relative to the numerous advantages
that a simpler program based on AMI would serve over the long term.
As outlined in the March 13 and April 19 Policy Memorandums to the APCHA Board of Directors,
APCHA’s current dual qualification system unintentionally creates a “discriminatory effect” because it
sets different income limits for renters and owners and classifies household size differently (i.e. based
on number of adults for renters and number of dependents for owners).
To address these issues, the dual qualification system should be converted to a single qualification
system based on Area Median Income (AMI) percentages per total number of persons in a household. In
addition, staff also recommended that the total number of categories be standardized to five income
categories, plus RO, for both renters and owners (currently, renters have four (4) income categories and
owners have seven (7) income categories, plus RO for each).
Because the current dual income limits cannot be converted to a single qualification system, new
income limits using AMI percentages had to be calculated. In calculating the new income limits, staff’s
goal was to set the Category income ranges so that the distribution of households within that category
would most closely match the distribution of units in that category, relative to overall inventory.
For example, given that Category 3 units make up the largest portion of total inventory, the Category 3
minimum and maximum incomes were set so that the highest portion of households with a full-time
employee working within Pitkin County fall within that Category income range. To meet this goal, staff
established a methodology to quantify how well the distribution of units matched the distribution of
households within the different income ranges (methodology explained in full in the April 19th Policy
Memorandum Appendix B: Distribution Matching Error Analysis Methodology).
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The proposed Category Income Limits are shown in the table below.
Justification for basing Income Limits on AMI
Inability to update current methodology
While income categories were directly tied to area incomes when established in 2003 using 1999
Median Income, that is no longer the case. APCHA’s income categories are unique, they utilize an
approach that adjusts the income limits each year only by change
in area incomes or housing affordability. CPI is an index that measures changes in consumer prices of
goods and services. Additionally, it is a regional index that is not directly linked to changes in the local
Pitkin County economy.
Recreating the methodology used for the 1999 Median Income, from which all the income levels are
currently derived, would be costly and time intensive. This would need to be done periodically to ensure
that these incomes are reflective of changes in area incomes over time. Given the resources required to
establish a Median Income using this methodology, this is not a feasible option.
What is AMI?
Most affordable housing programs tie income categories to the Area Median Income (AMI). AMI
published annually by the Department of Housing and Urban Development (HUD) for each county and
represents the median family income of an area. In contrast to APCHA’s current qualification system,
HUD calculates income limits based on the number of pers
calculates income limits based on number of dependents
HUD uses a combination of US Census, America Community Survey (ACS), and CPI information to update
incomes and adjust for family size and for areas that have unusually high or low income
relationships. Annual updating is a simple process using the change in AMI, which is calculated by HUD.
HUD uses the same methodology to establish AMI for all states, cou
country. The following methodology was used to calculate the 2017 AMI, also referred to as
Family Income (MFI) (see Using MFI Instead of MHI
1. The U.S. Census Bureau's 2010
calculating HUD's FY2017 MFIs. In areas where the margin of error is more than half of the 2014 5
ACS itself, the state non-metro estimate of median family income is used.
Strengthening Community Through Workforce Housing
4
The proposed Category Income Limits are shown in the table below.
Limits on AMI
Inability to update current methodology to establish new income limits
While income categories were directly tied to area incomes when established in 2003 using 1999
Median Income, that is no longer the case. APCHA’s income categories are unique, they utilize an
approach that adjusts the income limits each year only by changes in CPI, which is not linked to changes
in area incomes or housing affordability. CPI is an index that measures changes in consumer prices of
goods and services. Additionally, it is a regional index that is not directly linked to changes in the local
Recreating the methodology used for the 1999 Median Income, from which all the income levels are
currently derived, would be costly and time intensive. This would need to be done periodically to ensure
of changes in area incomes over time. Given the resources required to
establish a Median Income using this methodology, this is not a feasible option.
Most affordable housing programs tie income categories to the Area Median Income (AMI). AMI
published annually by the Department of Housing and Urban Development (HUD) for each county and
represents the median family income of an area. In contrast to APCHA’s current qualification system,
HUD calculates income limits based on the number of persons per household whereas the APCHA
number of dependents for ownership and number of adults
HUD uses a combination of US Census, America Community Survey (ACS), and CPI information to update
for family size and for areas that have unusually high or low income
relationships. Annual updating is a simple process using the change in AMI, which is calculated by HUD.
HUD uses the same methodology to establish AMI for all states, counties, and metropolitan areas in the
country. The following methodology was used to calculate the 2017 AMI, also referred to as
Using MFI Instead of MHI below):
1. The U.S. Census Bureau's 2010-2014 ACS median family income estimates are used as a basis for
calculating HUD's FY2017 MFIs. In areas where the margin of error is more than half of the 2014 5
metro estimate of median family income is used.
While income categories were directly tied to area incomes when established in 2003 using 1999
Median Income, that is no longer the case. APCHA’s income categories are unique, they utilize an
s in CPI, which is not linked to changes
in area incomes or housing affordability. CPI is an index that measures changes in consumer prices of
goods and services. Additionally, it is a regional index that is not directly linked to changes in the local
Recreating the methodology used for the 1999 Median Income, from which all the income levels are
currently derived, would be costly and time intensive. This would need to be done periodically to ensure
of changes in area incomes over time. Given the resources required to
Most affordable housing programs tie income categories to the Area Median Income (AMI). AMI is
published annually by the Department of Housing and Urban Development (HUD) for each county and
represents the median family income of an area. In contrast to APCHA’s current qualification system,
ons per household whereas the APCHA
number of adults for rental.
HUD uses a combination of US Census, America Community Survey (ACS), and CPI information to update
for family size and for areas that have unusually high or low income-to-housing-cost
relationships. Annual updating is a simple process using the change in AMI, which is calculated by HUD.
nties, and metropolitan areas in the
country. The following methodology was used to calculate the 2017 AMI, also referred to as Median
e estimates are used as a basis for
calculating HUD's FY2017 MFIs. In areas where the margin of error is more than half of the 2014 5-year
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2. If there is a valid 2017 1-year ACS esti
year data with the 1-year data. A valid 1
of the estimate is less than one-half of the estimate.
3. Once the appropriate 2014 ACS data
Budget Office forecast of the national CPI is calculated to inflate the estimate from mid
2017 (or mid FY2017).
HUD publishes one AMI per county yearly, mid
represents 100% AMI for a 4-person household. HUD and state agencies (e.g. Colorado Housing and
Finance Authority) use a standardized methodology to create 100% AMI figures for all household sizes
from the published AMI. The 2017 AMI for Pitkin County, used for the proposed income limits is
$98,000.
Using median incomes instead of average incomes
A measure of central tendency is a
as an index. Measures of central tendency are either the mean, median, or mode of a dataset, and are
selected depending on the distribution of the dataset. To equitably provide services to all Pitkin County
residents, income limits must be set so that they reflect the distributi
Mean (average) is the best measure of central tendency for
assessing the income distribution chart below, one can see that Pitkin County’s income data is
skewed (i.e. not normal). Median is the best measure of central tendency for positively skewed data.
The mean is not an accurate measure of central tendencies for family income distributions in Pitkin
County because 76%* of family incomes are below the measure, and 24%* are
median evenly split the dataset, with 50% of family incomes below and 50% of above the median. Using
the mean, or the average, in this case is misleading because a few extremely wealthy households in the
County (e.g. billionaire households) will substantially raise the mean income making it look like
Strengthening Community Through Workforce Housing
5
year ACS estimate of median family income available, HUD replaces the 5
year data. A valid 1-year 2014 5-year ACS estimate is one where the margin of error
half of the estimate.
3. Once the appropriate 2014 ACS data has been selected, an inflation factor based on the Congressional
Budget Office forecast of the national CPI is calculated to inflate the estimate from mid
HUD publishes one AMI per county yearly, mid-spring for the preceding year. The AMI published
person household. HUD and state agencies (e.g. Colorado Housing and
Finance Authority) use a standardized methodology to create 100% AMI figures for all household sizes
2017 AMI for Pitkin County, used for the proposed income limits is
Using median incomes instead of average incomes
central or typical value for a probability distribution, and can be used
f central tendency are either the mean, median, or mode of a dataset, and are
selected depending on the distribution of the dataset. To equitably provide services to all Pitkin County
residents, income limits must be set so that they reflect the distribution of incomes within the county.
Mean (average) is the best measure of central tendency for normally distributed data; however,
assessing the income distribution chart below, one can see that Pitkin County’s income data is
l). Median is the best measure of central tendency for positively skewed data.
The mean is not an accurate measure of central tendencies for family income distributions in Pitkin
County because 76%* of family incomes are below the measure, and 24%* are above it. Whereas, the
median evenly split the dataset, with 50% of family incomes below and 50% of above the median. Using
the mean, or the average, in this case is misleading because a few extremely wealthy households in the
eholds) will substantially raise the mean income making it look like
mate of median family income available, HUD replaces the 5-
year ACS estimate is one where the margin of error
has been selected, an inflation factor based on the Congressional
Budget Office forecast of the national CPI is calculated to inflate the estimate from mid-2014 to April,
eceding year. The AMI published
person household. HUD and state agencies (e.g. Colorado Housing and
Finance Authority) use a standardized methodology to create 100% AMI figures for all household sizes
2017 AMI for Pitkin County, used for the proposed income limits is
or typical value for a probability distribution, and can be used
f central tendency are either the mean, median, or mode of a dataset, and are
selected depending on the distribution of the dataset. To equitably provide services to all Pitkin County
on of incomes within the county.
distributed data; however,
assessing the income distribution chart below, one can see that Pitkin County’s income data is positively
l). Median is the best measure of central tendency for positively skewed data.
The mean is not an accurate measure of central tendencies for family income distributions in Pitkin
above it. Whereas, the
median evenly split the dataset, with 50% of family incomes below and 50% of above the median. Using
the mean, or the average, in this case is misleading because a few extremely wealthy households in the
eholds) will substantially raise the mean income making it look like
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households have higher incomes on average than they actually do. HUD’s calculations for AMI are
accurate measures of central tendencies for income distributions because they are based on the median
income instead of the average, or mean, income of the ACS dataset. Using the median removes the
effect of outliers, both on the high and low side of the distribution, on the central measure of the
distribution.
Benefits of using AMI
APCHA’s current income-calculation methodology results in a program that does not consistently serve
the same target household income group each year. Because APCHA’s current income limits are not tied
to target household incomes, the program serves a different income group depending on the year given
the change in CPI. An advantage of linking income limits to HUD AMI is that the target household income
group would remain consistent over time.
Additional advantages of basing APCHA Category incomes on AMI include:
· It is a highly reliable, trusted, and readily available data source;
· It is objective and updated annually by HUD;
· Reduces complexity and increases simplicity of system over time;
· Increases fairness because it more consistently maintains the relative affordability of Categories
over time;
· Creates consistency with State (CHFA) and Federal housing programs (e.g. LIHTC Program) and
multiple funding sources;
· Is used by peer communities and would allow Aspen to evaluate itself against similar programs;
and
· Increases methodology consistency, uniformity, and transparency.
It is not possible to directly translate APCHA’s current Category system into HUD AMI ranges because of
the different underlying tier structure of the rental and ownership programs. However, AMI percentages
can be estimated for each Category using some basic assumptions and information from the 2015
Employee Survey1. The AMI’s for households with an employee working in Pitkin County are now well
documented, making it possible to convert the current incomes into AMI percentages.
Using MFI instead of MHI
Along with the Median Family Income (MFI), the ACS also annually publishes a Median Household
Income (MHI). The 2014 and 2015 5-year ACS median household income estimates for Pitkin County are
$71,060 and $71,196, respectively. Family income is the sum of the income of all family members 15
years and older living in the household. Families are groups of two or more people related by birth,
marriage, or adoption and residing together; all such people are considered members of one family.
Household income is the sum of the income of all people 15 years and older living in the household. A
household includes related family members and all the unrelated people, if any, such as lodgers, foster
children, wards, or employees who share the housing unit. A person living alone in a housing unit, or a
group of unrelated people sharing a housing unit, is also counted as a household.
1 Carried out as part of the 2016 Policy Study.
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Some argue Median Household Income (MHI) might be a better index to establish the new income limits
than AMI, which is based on Median Family Income (MFI), simply because it “looks” better (i.e. lower).
However, AMI is the best possible index option to set the new income limits based on the following
(explained further below):
· HUD income tables, based on MFI, are the best-defined income limits by area available;
· ACS data lags and does not account for high housing costs in an area;
· Using MHI to establish income limits would add to the complexity of the program and could deter
private development of affordable housing;
· There is no established methodology for adjusting annually published MHI, a single data point, to
households of different sizes; and
· Current income limits cannot be translated into MHI percentages based on household sizes.
According to a HUD specialist, as to the question of why HUD bases income limits on family income, this
is not a specific requirement; however, it is rooted in Federal statute: 42 USC 1437(b). The term
“family” is used throughout this section of statute; therefore, it follows that HUD would use the family
income statistics to meet the definitions of “low income families,” “very low income families,” and
“extremely low income families”2. The very low-income limits (usually based on 50 percent of MFI) are
the basis of all other income limits, as they are the best-defined income limits and have been the subject
of specific, limited legislative adjustments subsequent to reviews of the HUD calculation methodology.
In addition, a number of other income limit calculations are tied by legislation or regulation to HUD’s
AMI calculation. This is to create a uniform national standard for the relationship between the rent and
income distributions in defining the high- and low-housing cost adjustments, and to prevent fluctuations
in Low-Income Housing Tax Credit Difficult Development Area (DDA) determinations that result solely
from high housing cost income limit fluctuations as areas go in and out of the 50th percentile FMR (Fair
Market Rents) program.3
ACS annually publishes 5-year estimates, summarizing data from five years of annual surveys. Due to the
time required to do the survey and then compile the results, ACS 5-year estimates lag by more than a
year (as of July 6, 2017, the most recent ACS 5-year available was from 2015). To address the time lag in
available ACS data, HUD adjusts MFI using an established methodology to account for inflation and
changes in the market. Additionally, when calculating the AMI from the ACS MFI data, HUD also includes
adjustments for high and low housing costs specific to a geographic region if applicable. Because HUD
does not use the MHI to establish AMI or any other income limits, there are no such adjustments
established for MHI. Using MHI as an index to establish income limits means the data would be dated
and would not account for area specific housing costs, inhibiting APCHA’s ability to serve the same
target markets year-by-year.
One of the main rationales for porting to AMI based income limits is to reduce program/administrative
complexity and increase transparency and fairness in how the program operates. The methodology
2 Source: US Department of Housing and Urban Development, personal communication June 19, 2017
3 Source: HUD Income Limits Briefing Material – FY17
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proposed for the new AMI based income limits is one outlined in detail by HUD, and readily available to
the public. Although not currently used for the general income limits, APCHA is required to use AMI
income limits for its Low-Income Housing Tax Credit (LIHTC) properties. AMI income limits also affect
private developer’s decisions to participate in development partnerships with APCHA, dictating the
amount of tax credits they can receive.
Continuing to base APCHA’s general income limits on a non-AMI index unnecessarily perpetuates
program and administrative complexity of having to oversee properties with different income limits, and
keeps a barrier to entry in place for developers who seek tax credits to build more affordable workforce
housing inventory.
AMI and MHI are both singular data points published annually. However, AMI can be calculated for all
household sizes, whereas MHI cannot be. The AMI published represents 100% AMI for a 4-person
household in a region; the published AMI is used to calculate income limits for all household sizes, using
a methodology established and published by HUD. On the other hand, MHI simply represents the
calculated median income for all households surveyed, with no specific reference to what household
size it represents. The usefulness of MHI as a basis for income limits is further reduced by the fact that
there is no established methodology for converting the singular data point to apply to households of
different sizes.
As part of the 2016 Consultant Policy Study of the APCHA Guidelines and Program, households
containing at least one person employed in Pitkin County, APCHA’s customer base, were surveyed to
draw data about their household sizes and household incomes. The survey data was then compiled and
used to establish the estimated AMI percentages served by each of the APCHA Income Categories. The
proposed AMI-based income limits take into account those calculations to reduce the effect of changing
income limits on APCHA’s target market, especially household currently living in APCHA’s inventory.
Choosing to base income limits on MHI instead of MFI (i.e. AMI) could not use the survey data because
there is no available data on how APCHA’s current categories translate to MHI.
Results of Establishing Income Limits Using MHI
Using MHI data as an alternative to MFI (AMI) data to establish income limits would create arbitrary
assumptions for both income limits and household sizes. Such a decision would be counterproductive to
meeting the organizational goals of APCHA policy initiatives4, as well as fall short of the benefits of using
AMI outlined above.
Attachments:
APCHA Resolution No. 2 (Series of 2017)
4 APCHA policy goals are aimed to decrease program and administrative complexity, increase effectiveness and
efficiency, increase program transparency and predictability, increase the availability of useful, reliable data, and
increase the fairness of program implementation.
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201 E. Main Street - Notice of HPC approval
Staff Memo 7/24/17
Page 1 of 3
MEMORANDUM
TO: Mayor and Aspen City Council
FROM: Justin Barker, Senior Planner
THRU: Jessica Garrow, Community Development Director
RE: Notice of HPC approval of Demolition, Minor Development,
Commercial Design Review, and Setback Variations for 201 E. Main
Street, HPC Resolution #13, Series of 2017
MEETING DATE: July 24, 2017
BACKGROUND: On June 28, 2017, the
Historic Preservation Commission
approved Demolition, Minor
Development, Commercial Design
Review, and Setback Variations for a
project at 201 E. Main Street. The
existing development on the 9,000 square
foot property is a vacant one-story
commercial building. There are two
historic masonry structures that were built
in 1889 and covered in stucco around the
1940s/50s. There is also a wood structure
connecting the two masonry structure.
This element was added in the 1980s and
does not contain historic significance.
The project includes demolition of the existing wood addition between the historic masonry
buildings, construction of a new infill addition, and construction of a service enclosure on the
alley wall. The project also includes relocation of a historic window, reconstruction of the alley
wall, new exterior lighting, a new trash enclosure and code-compliant parking area, and general
landscape improvements.
Drawings representing the approved project are attached as Exhibit A, with conditions of
approval noted. HPC approved the project with conditions by a unanimous 6-0 vote. The
approved Resolution is attached as Exhibit B. Draft minutes from the June 28 HPC meeting will
be provided to Council prior to the July 24th meeting date.
The main topics of discussion for this project were the roof and windows of the new construction.
The application included a pitched roof mechanical enclosure on top of the new addition. HPC was
Figure 1 – Existing building
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201 E. Main Street - Notice of HPC approval
Staff Memo 7/24/17
Page 2 of 3
somewhat divided on this design, but determined that a sloped roof form was not compatible with
the more rectangular forms of the historic masonry structures, and included a condition that the final
mechanical screen design and height would be approved by the HPC monitor and staff. The
application design also included a series of double-hung windows ganged together on both sides of
the new addition. Although the double-hung windows relate to the historic windows, HPC discussed
that the proposed window design was too busy and should be simplified to clearly distinguish from
the historic window pattern and design. This was also added as a condition for the final
configuration to be approved by the HPC monitor and staff.
Aspen Street elevation – new construction in blue
The historic masonry structures are in severe disrepair due to trapped moisture from the stucco. The
alley wall is most affected by this and needs to be rebuilt. HPC discussed whether the new material
should be brick or wood, and decided wood is better to match the other new construction for this
project.
The approval includes relocation of a
historic window on the east wall of the
north building, facing the courtyard. The
original wall contained three windows,
the center one has since been replaced by
a door. The proposal includes relocating
the south window to where the center one
was originally located, and adding a new
door in its place.
The remaining conditions of approval
included a restoration plan detailing all
restoration work on the historic structure
and removal of certain items identified on
the drawings in Exhibit A.
HPC also granted setback variations to memorialize the historic development and to accommodate
the new construction in a manner that is historically appropriate. The approved setback variation
locations are on the following page.
Proposed window relocation
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201 E. Main Street - Notice of HPC approval
Staff Memo 7/24/17
Page 3 of 3
Approved setback variations – historic (blue), new (orange)
PROCEDURE: Pursuant to Section 26.412.040(B), City Council has the option of exercising the
Call Up provisions outlined in Section 26.412.040(B) within 15 days of notification on the
regular agenda.
For this application, City Council may vote to Call Up the project at their July 24th meeting. If
City Council does not exercise the Call Up provision, the HPC Resolution shall stand.
ATTACHMENTS:
Exhibit A: Approved Conceptual Design
Exhibit B: HPC Resolution #13, Series of 2017
Exhibit C: Draft HPC Minutes – June 28, 2017 (to be sent prior to meeting)
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Historic Preservation Commission
Resolution No. 13, Series 2017
Page 1 of 3
RESOLUTION NO. 13
(SERIES OF 2017)
A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION
GRANTING DEMOLITION, MINOR DEVELOPMENT, COMMERCIAL DESIGN
REVIEW, AND SETBACK VARIATION APPROVALS FOR 201 E. MAIN STREET,
LOTS A, B, & C, BLOCK 74, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY,
COLORADO.
Parcel ID: 273707328001
WHEREAS, the Community Development Department received an application from 201
E. Main Holdings, LLC (Applicant), represented by Rybak Architecture & Development, P.C. and
Backen, Gillam & Kroeger Architects, for the following land use review approvals:
• Demolition pursuant to Land Use Code Section 26.415,
• Minor Development pursuant to Land Use Code Section 26.415,
• Setback Variations pursuant to Land Use Code Section 26.415,
• Commercial Design Review pursuant to Land Use Code Section 26.412; and,
WHEREAS, all code citation references are to the City of Aspen Land Use Code in effect
on the day of initial application, April 26, 2017, as applicable to this Project; and,
WHEREAS, pursuant to Chapter 26.304.060 of the Land Use Code, the Community
Development Director may combine reviews where more than one (1) development approval is
being sought simultaneously; and,
WHEREAS, the Aspen Community Development Department reviewed the proposed
Application and recommended continuation; and,
WHEREAS, the Historic Preservation Commission reviewed the Application at a duly
noticed public hearing on June 28, 2017, continued from June 14, 2017, during which time the
recommendations of the Community Development Director and comments from the public were
requested and heard by the Historic Preservation Commission; and,
WHEREAS, during a duly noticed public hearing the Historic Preservation Commission
approved Resolution No. 13, Series of 2017, by a six to zero (6 - 0) vote, granting approval with
the conditions listed hereinafter.
NOW, THEREFORE BE IT RESOLVED BY THE HISTORIC PRESERVATION
COMMISSION OF THE CITY OF ASPEN, COLORADO THAT:
Section 1: Approvals
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the
Historic Preservation Commission hereby grants Demolition, Minor Development, Commercial
Design Review, and Setback Variation approvals for the project as presented to HPC on June 28,
2017, with the following conditions:
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Resolution No. 13, Series 2017
Page 2 of 3
1. HPC grants the following setback variations:
a. West side yard setback reduced to zero (0) feet to recognize the historic
development conditions and to accommodate the proposed infill development.
b. South rear yard setback reduced to zero (0) feet to accommodate a new service
enclosure.
c. North front yard setback reduced to zero (0) feet to recognize the historic
development conditions.
2. The project must include repair of all existing historic exterior materials and features,
including masonry, doors, windows, and porch. A preservation plan detailing all repair
and restoration work shall be submitted to staff for approval prior to building permit
submittal.
3. The Applicant shall restudy the window configuration on the infill addition to simplify the
design, to be approved by staff and monitor.
4. Examine the exposed masonry on the interior of the front structure to identify the exact
location to re-install the historic east facing window.
5. Remove all proposed wall sconces on the historic east walls that are not above an entry.
6. All mechanical equipment shall also be set back from any street-facing façade a minimum
of 15 feet. Final mechanical equipment selection shall be submitted to staff for approval
prior to building permit submittal.
7. Slate, which is proposed as a roofing material on the rear lean-to, was not used historically
in Aspen and is not an approved roofing material. Final selection of a wood shingle or
metal roof material shall be approved by staff and monitor.
8. The proposed evergreen plants are not approved along the base of the west and north sides
of the historic structures because they are uncharacteristic of the historic landscape and
may introduce too much moisture along the foundation of the buildings. Any sprinklers
shall be located a minimum of three (3) feet away from the walls of the historic structures.
9. The mechanical screen shall be wood siding to match the infill addition. Final height and
design shall be approved by staff and monitor.
10. The reconstructed wall on the alley side of the south structure shall be wood siding to match
the infill addition.
Section 2:
All material representations and commitments made by the Applicant pursuant to the development
proposal approvals as herein awarded, whether in public hearing or documentation presented
before the Community Development Department and the Historic Preservation Commission are
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Resolution No. 13, Series 2017
Page 3 of 3
hereby incorporated in such plan development approvals and the same shall be complied with as
if fully set forth herein, unless amended by other specific conditions or an authorized authority.
Section 3:
This Resolution shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
FINALLY, adopted, passed and approved this 28th day of June, 2017.
Approved as to form: Approved as to content:
__________________________ ______________________________
Andrea Bryan, Assistant City Attorney Jeffrey Halferty, Chair
Attest:
_______________________________
Nicole Henning, Deputy City Clerk
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MEMORANDUM
TO: Mayor and City Council
FROM: Aspen Police Department Community Response Officers Ginna Gordon and
Audrey Radlinski
THRU: Assistant Chief Bill Linn
DATE OF MEMO: May 9, 2017
MEETING DATE: July 24, 2017
RE: Ordinance #20, Series of 2017 - Modifications to the Dogs Section 6.08 of the City of
Aspen Municipal Code to include a section prohibiting Harassing Dog behavior
REQUEST OF COUNCIL:
Community Response Officers request the approval of Ordinance 20, which would add a new
Subsection to 6.08 of the City of Aspen Municipal Code to include a Harassing Dog violation. A
citation for a harassing dog violation would have an escalating fine structure of a $50 fine for a
first offense and a $100 fine for a second offense. A third offense will require a mandatory court
appearance in municipal court.
PREVIOUS COUNCIL ACTION: N/A
BACKGROUND:
Aspen Municipal Code Section 6.08.120 currently prohibits the keeping of a “vicious
dog,” defined as a “dog that unprovokedly bites or attacks human beings or other animals either on
public or private property or in a vicious or terrorizing manner approaches any person in apparent
attitude of attack upon the streets, sidewalks or any public ground or place.” Last year, the Aspen
Police Department received 24 animal bite calls for service, but only 5 of those calls warranted a
citation for “Keeping of a Vicious Dog” in the responding officer’s opinion. Under the current
code, officers are limited to two options when dealing with a potentially dangerous/harassing
dog. The first option available is for the responding officer to issue a citation for “Keeping of a
Vicious Dog;” a mandatory court summons which is appropriate for our more severe offenses.
Currently the other option is to issue a “Keeping of a Vicious Dog” warning. This has its
applications, but often fails to hold the dog owner accountable for the animal’s troublesome
behavior. For many situations that we encounter, these options are not viable solutions or
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applicable to the situation at hand. The police department is requesting a more moderate citation
that would apply to most calls we receive and reserve the “Keeping of a Vicious Dog” for our
more severe cases.
DISCUSSION:
The majority of dog bites reported to our department are not vicious in nature. For example, two
dogs in a scuffle over a toy, a playful pup jumping onto a stranger and causing injury, a tethered
dog lunging at a passerby, or a Blue Heeler nipping at the heels of a runner. Many of these
require some level of accountability. A simple warning may not do justice for the victim, but a
“Keeping of a Vicious Dog” citation would be too harsh of a penalty for the circumstances.
Public Safety needs a more moderate option.
Pitkin County Code currently has an ordinance termed “Harassing Dogs, ” in addition to a
vicious dog ordinance, Staff believes it would greatly benefit our community if we adopt an
ordinance similar to Pitkin County’s. Section 6.08.120 - Keeping of a Vicious Dog would remain
untouched, and a new section for Harassing Dog would be implemented to Chapter 6.08 of
Municipal Code. A huge encouragement for this direction is that a similar Pitkin County
ordinance has been successfully implemented throughout Pitkin County and would be easily
accepted by the public.
This resource is necessary for public safety officers to appropriately enforce and correct
problematic behavior. For example, a harassing dog ordinance, would have applied to 75% of the
Aspen Police Department’s Animal Bite calls in 2016. In that same year, only 20% of the total
animal bites calls met the criteria to be cited for “Keeping of a Vicious Dog.” That means that we
are lacking the legal tool to address 75% of difficult dog behavior that is encountered.
The proposed ordinance is attached.
FINANCIAL/BUDGET IMPACTS:
This citation would have an escalating fine structure
· First Offense $50 fine
· Second Offense $100 fine
· Third Offense is a mandatory court appearance with a negotiable fine.
If the Aspen Police Department had cited half of the calls for service last year that would have fit
this violation, the resulting fines would have totaled $500. Projected over 10 years, this easily
could result in $5,000 in revenue.
ENVIRONMENTAL IMPACTS:
This ordinance will protect wildlife preventing harassment from menacing dogs.
RECOMMENDED ACTION:
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A new section for Harassing Dog would be implemented to Chapter 6.08 of the City of Aspen
Municipal Code.
PROPOSED MOTION:
I move to approve a new Ordinance to Section 6.08 of the City Municipal Code for Harassing
Dog.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Exhibit A: Ordinance #20, Series 2017
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ORDINANCE NO. 20
(Series 2017)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING TITLE 6 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN – ANIMALS
AND FOWL - TO ADD A NEW SECTION 6.08.190 ENTITLED: KEEPING A HARASSING
DOG PROHIBITED.
WHEREAS, Aspen Municipal Code Section 6.08.120 currently prohibits the keeping of a
“vicious dog,” which is defined as a “dog that unprovokedly bites or attacks human beings or
other animals either on public or private property or in a vicious or terrorizing manner
approaches any person in apparent attitude of attack upon the streets, sidewalks or any public
ground or place,” and
WHEREAS, the Aspen Police Department received numerous animal bite call for service
every year, but only a small number of those cases meeting the definition of “vicious dog.” The
majority of cases still involve a dog that is potentially dangerous and warrants some law
enforcement action or penalty for the dog owner; and,
WHEREAS, under the current code, the only options available to officers when dealing
with a dangerous or harassing dog is to issue the dog owner summons to municipal court or issue
the dog owner a warning. There are cases, however, that warrant an “intermediate” sanction; and,
WHEREAS, the adoption of a section to the Municipal Code prohibiting harassing dogs
that would allow for a penalty assessment for the first two offenses as opposed to a mandatory
court appearance is necessary for Law Enforcement to appropriately enforce and correct
problematic dog behavior within the City; and,
WHEREAS, the City Council finds that this ordinance furthers and is necessary for the
promotion of the public health, safety, and welfare.
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
Section 1.
That Title 6 – Animals and Fowl - of the Municipal Code of the City of Aspen, Colorado,
is hereby amended by the addition of a new section 6.08.190 – Keeping a Harassing Dog
Prohibited, which section shall read as follows:
6.08.190 Keeping a Harassing Dog Prohibited.
No person shall own, keep, possess, or harbor a harassing dog within the City. For the
purposes of this section, a harassing dog is hereby defined and declared to be any dog that
exhibits an apparent attitude of attack, approaches in a menacing fashion, chases a person or
another animal, or has demonstrated tendencies that would cause a reasonable person to believe
that the dog may inflict injury upon any person or animal. No owner or keeper of a dog shall
permit the dog to harass any other animal or person. A dog shall be deemed harassing, whether
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or not the offending dog inflicts injury. A person charged with a first or second violation of this
section shall have the option of paying a handling, processing and administrative assessment
therefor to a designated City agent, the City of Aspen animal safety officer or his or her
authorized agents, in lieu of further proceedings in court to defend such charge as described in
Section 1.04.080. If such person elects to appear in court, he shall be proceeded against as
otherwise provided by law for the violations charged and shall be subject to the penalties
provided for in Section 1.04.080, if found guilty of such charges. The penalty assessments for a
violator of this section shall be as follows:
First Offense: $50 fine
Second Offense: $100 fine
Third Offense: mandatory court appearance with potential penalties pursuant to
Section 1.04.080.
Section 2: Litigation
This ordinance shall not affect any existing litigation and shall not operate as an abatement of
any action or proceeding now pending under or by virtue of the ordinances repealed or amended
as herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 3: Severability
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this
ordinance in the office of the Pitkin County Clerk and Recorder.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 26 day of June, 2016.
_______________________
Steven Skadron, Mayor
ATTEST:
_____________________________
Linda Manning, City Clerk
P103
IX.a
3
FINALLY, adopted, passed and approved this 24 day of July, 2017.
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Steven Skadron, Mayor
ATTEST:
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Linda Manning, City Clerk
APPROVED AS TO FORM:
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James R. True, City Attorney
P104
IX.a