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agenda.council.regular.20170925
CITY COUNCIL AGENDA September 25, 2017 5:00 PM I. Call to Order II. Roll Call III. Scheduled Public Appearances a) Roland McCook and Deanne Vitrac-Kessler to discuss Indigenous Peoples Day 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 #123, Series of 2017, Contract for New Year's Eve Fireworks b) Resolution #120, Series of 2017 - HVAC Yellow Brick c) Resolution #110, Mill Street and Main Street Intersection Improvements d) Resolution #131, Series of 2017 - Marolt Trail Asphalt Overlay e) Resolutions #129 and #130, Series of 2017 - Cozy Point Ranch Lease Extension with Cozy Point Ranch, LLC and AspenTREE f) Resolutions #124 and #125 - Bond Counsel and Underwriter Services g) Resolution #128, Series of 2017 - Compact of Colorado Communities membership h) Council Board Appointments i) Minutes - September 11, 2017 VII. Notice of Call-Up VIII. First Reading of Ordinances a) Ordinance #24, Series of 2017 - Code Amendment Section 23.04.010 - definitions for the Sales Tax code. b) Ordinance #24, Series of 2016 - 119 Neale Avenue-Transferable Development Rights IX. Public Hearings a) Resolution #126, Series of 2017 - Policy Resolution - Post-Moratorium Clean-Up Ordinance X. First Reading of Ordinances a) Ordinance #23, Series of 2017 - Post-Moratorium Clean-Up Code Amendment P1 XI. Action Items a) Call-up of HPC’s approval of Conceptual Major Development, Demolition, Relocation, Floor Area Bonus, Setback and Residential Design Standards Variations for 209 E. Bleeker, HPC Resolution #17, Series of 2017 XII. Adjournment Next Regular Meeting October 09, 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. P2 Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Sandra Doebler Special Events Coordinator City of Aspen DATE OF MEMO: September 6, 2017 MEETING DATE: September 25, 2017 RE: Resolution #123, Series of 2017 - New Year’s Eve - Fireworks REQUEST OF COUNCIL: Staff is requesting Council approve the Western Enterprises, Inc contract at $28,000 to provide the on mountain fireworks during New Year’s Eve. PREVIOUS COUNCIL ACTION: Council has previously approved funding for the fireworks. BACKGROUND: Since 2006 the City’s Special Events Department has worked closely with the Aspen Police Department and the Parks Department to create a safe and fun New Year’s Eve for the community and guests during this holiday. A major factor of any New Year’s Eve is fireworks. For our celebration, fireworks are “shot” off twice in the night. The “family friendly” version which is approximately 20 minutes long happens at 8:00pm and the “traditional” version occurs at midnight for approximately 5 minutes. Staff first split the fireworks into two shows in 2007 and received positive comments from the community and businesses. By splitting the fireworks, this enables many families to bring the kids and come out and watch the show. Staff received feedback that this had helped the early seating with some restaurants and RFTA showed an increase in ridership early and on outbound busses immediately following the show. Staff would like to continue this tradition. DISCUSSION: The heart of any New Year’s Eve celebration is the fireworks show. Western Enterprises, INC has been the fireworks supplier and facilitator since 2013. They are also the fireworks company that Aspen Skiing Company uses and the Aspen Chamber Resort Association uses. Because of these relationships, most importantly the Aspen Skiing Company, Western Enterprises is able to be more efficient with their set up and tear down, which translates to a cost savings. Western Enterprises also has a very strong working relationship with the Aspen Fire Department utilizing the knowledge of local fire fighter Ken Josling, who is the liaison during the New Year’s Eve fireworks shows, FINANCIAL/BUDGET IMPACTS: This expenditure is currently within the New Year’s Eve budget allotment. P3 VI.a Page 2 of 2 ENVIRONMENTAL IMPACTS: While bringing more people to town at an already-busy time when traffic levels will be high could be a concern, this event is not intended, nor is it likely to bring more people to town. Because town is so full and parking is limited, people already tend to use the bus on New Year’s Eve to a much greater extent than usual. RECOMMENDED ACTION: Staff would like Council to approve this contract. ALTERNATIVES: If Council disagrees with the direction above, staff will cancel the fireworks. CITY MANAGER COMMENTS: P4 VI.a RESOLUTION # 123 (Series of 2017) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND WESTERN ENTERPRISES, 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 New Year’s Eve Fireworks between the City of Aspen and Western Enterprises, 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, New Year’s Eve Fireworks between the City of Aspen and Western Enterprises, 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 25th day of September, 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 September 25, 2017. Linda Manning, City Clerk P5 VI.a August 23, 2017 Ms. Sandra Doebler Special Events Coordinator City of Aspen 130 S. Galena St. Aspen, CO 81611 Hi Sandy; I want to thank you again for getting in touch with us to confirm the NYE fireworks displays for Aspen. As you have requested, I have maintained the same $28,000 budget as last year, and I am attaching the “Fireworks Production Contract” for your review and consideration. As I recall, your legal department will probably blend our contract with your contract, and so whenever they can develop their draft please have them forward it to us for review as well. Our production contract includes our $5,000,000 fireworks liability coverage and a crew of Colorado certified pyrotechnic operators who will be in charge of the “load-in, firing and load-out” of both firework performances (8:00pm and midnight) for New Year’s Eve in Aspen. Of course, our operators are covered by worker’s compensation coverage, with statutory limits of the state of Colorado. We will work with Tim Cottrell to assist in coordination of permitting and logistics and my son (Ron Burnett) will be the licensed pyrotechnic operator in charge of both your NYE displays. Thanks again for everything Sandy, and we truly consider it an honor to stage the fireworks for Aspen. Take care and please do not hesitate to contact us if you have any questions whatsoever. Respectfully, Jim Burnett WESTERN ENTERPRISES, INC. Creating the Spectrum of Pyrotechnic Production Excellence Post Office Box 60 – Carrier, Oklahoma 73727 (800) 375-2204 – (580) 855-2205 FAX P6 VI.a FIREWORKS PRODUCTION CONTRACT 1. This Contract is entered into this ______ day of _________________, 20_____, by and between WESTERN ENTERPRISES, INC., designated herein as the "SELLER", and CITY OF ASPEN, COLORADO, designated herein as the "PURCHASER" for two (2) fireworks productions (one at 8:00pm and one at 12:00 midnight) to be held on DECEMBER 31, 2017. 2. SELLER will secure, prepare and deliver said fireworks as outlined, or will make necessary substitutions of equal or greater value. SELLER will include the services of a Pyrotechnic Operator to take charge of, set up and fire the display, along with such help as he deems necessary to perform the fireworks display safely, and in accordance with such Federal, State or Local laws that might be applicable. 3. SELLER agrees that the Operator and Assistant(s) are to check the display area after the presentation of the fireworks display for any "duds" or other material, which might not have ignited. Any such material, found by any person other than the Operator, shall be turned over to the Operator for safekeeping or disposal of said material. 4. PURCHASER will furnish the secured minimum safety distances established by the SELLER after an on-site inspection of the proposed firing location. PURCHASER will provide adequate police protection and/or other adequate security to maintain these distances. PURCHASER also agrees to have a fire truck available on location during the display. 5. A Certificate of Insurance covering the fireworks display will be provided by the SELLER upon signing of the contract, for coverage in the amount of FIVE MILLION DOLLARS ($5,000,000.00) broad form, bodily injury and property damage liability, Statutory Workers Compensation Coverage, Comprehensive Automobile Liability in the amount of FIVE MILLION DOLLARS ($5,000,000.00) Combined Single Limit. PURCHASER agrees to provide a complete list of all additional insureds to be named on the certificate. 6. It is agreed and understood that the PURCHASER will pay to the SELLER the sum of TWENTY-EIGHT THOUSAND DOLLARS ($28,000.00) to be paid as follows; Forty percent deposit ($11,200.00) with signed contract and the remainder ($16,800.00) within fifteen (15) days after the date of the display. Unpaid accounts are subject to one percent (1%) interest charge per month after fifteen days. 7. In the event of inclement weather or other adverse conditions, so as to cause postponement of the display it is agreed and understood that PURCHASER will notify SELLER regarding the postponement date, normally the following night, or at some future date within the calendar year. If the PURCHASER will not re-schedule the display within the calendar year, or completely cancels the display, the PURCHASER agrees to surrender the deposit amount of ($11,200.00) to the SELLER. It is understood and agreed that SELLER shall be solely responsible for failure of the performance of the fireworks display for any reason under SELLERS control. 8. Witness whereof, we have caused our signatures to be affixed to this Document, on this ______ day of __________________, 20_____. WESTERN ENTERPRISES, INC. CITY OF ASPEN SELLER PURCHASER BY: BY: authorized agent authorized agent P7 VI.a August 23, 2017 CITY OF ASPEN Ms. Sandra Doebler ASPEN, COLORADO City of Aspen, Special Events DECEMBER 31, 2017 130 S. Galena Aspen, CO 81611 970-429-2093 (work) * * * PYROTECHNIC PRODUCTION * * * As a beginning declaration, this program proposal comprises a detailed listing of the very best pyrotechnic devices and aerial shells available anywhere. All ideas, concepts and itemized product listing are deemed confidential, intended solely for the client's review, and should not be disseminated to anyone other than the client. Western Enterprises, Inc. is honored to have the opportunity to submit this pyrotechnic production program for the 2017 CITY OF ASPEN NEW YEAR’S EVE Fireworks Spectacular! We understand the importance of this significant event to your event and we can assure you that Western Enterprises, Inc. is committed to staging an evening of pyrotechnic "magic" for your audience. Western Enterprises, Inc. is committed to provide our clientele with the highest quality pyrotechnic products in our entire industry. We are proud to be able to produce our own very unique line of special-made designer shells in our productions, and from our personal trips to China we have acquired some truly magical pyrotechnic effects that we are excited about integrating them together in your performance for this year. Having provided you with the above information, we would like to confirm several elements that are important to your production. 1. PLANNING CONSIDERATIONS. The following factors must be considered to assure the success of this production. a. Duration. There are two (2) performances for New Year’s Eve. The first performance at 8:00pm will last approximately 15-minutes in duration, and the second performance at 12:00 midnight will last approximately 7 minutes in length. b. Musical Accompaniment. These performances are NOT scheduled to be staged and produced to a special musical score. P8 VI.a TO: MS. SANDRA DOEBLER EVENT: ASPEN NEW YEAR’S EVE DATE: DECEMBER 31, 2017 PAGE: TWO c. Permits. All permits, clearances and other documentation regarding the pyrotechnics need to be in collaboration with the PURCHASER (City of Aspen), the SELLER (Western Enterprises, Inc.) and the ASPEN FIRE AUTHORITY. d. Preliminary Meetings. Initial discussions have been conducted between Sandra Doebler and Jim Burnett to discuss the logistical and safety elements that are important to the conduct of this display. The pyrotechnic operator in charge of handling the firing of the fireworks for Western Enterprises, Inc will communicate with Tim Cottrell and Aspen Mountain Operations managers to coordinate the timing of the “load-in, firing and load-out” of the equipment and fireworks. e. Labor. Western Enterprises, Inc. will provide all necessary personnel to handle the “load-in, firing and load-out” of this pyrotechnic production. f. Security. It is the responsibility of the Sponsor to provide the necessary personnel and barriers (rope, fencing, etc.) with which to secure the designated display site. This display site must be void of all spectators and automobiles. g. Insurance. Western Enterprises, Inc. will provide the following insurance Coverage for your event: (1) $5,000,000 Fireworks liability insurance coverage (Includes all "Additional Insureds”), (2) Colorado Worker's Compensation coverage on all Western Enterprises, Inc. technicians and (3) $5,000,000 liability coverage on all vehicles hauling explosives. 2. GENERAL OVERVIEW OF PERFORMANCE. Your program includes a wide variety of pyrotechnic aerial shells from around the world. And we are very proud to include some of our own Special-Made Competition Shells that we have showcased in various International Fireworks Competitions and also at Disney World. Your performance will begin with a barrage of “Heavy Reporting Bombs” to announce the opening of the performance; after which there will be a pause and then your display will be fired in its entirety. As your fireworks display draws to its conclusion, your "GRAND AERIAL FINALE" will be the most dramatic portion of the entire performance. It will begin with a barrage of Red Flower Shells, followed by a barrage of Blue Flower Shells, followed by a barrage of luxurious cascading Golden Brocade Kimuro Mums and ultimately finishes with a tremendous barrage of Heavy Reporting Bombs which brings a thrilling conclusion to the 2017 ASPEN NEW YEAR’S EVE Fireworks Spectacular! “The Sky provides the Pyrotechnician’s canvas and our art-form is expressed by how we portray ourselves in the stars” P9 VI.a TO: MS. SANDRA DOEBLER EVENT: ASPEN NEW YEAR’S EVE DATE: DECEMBER 31, 2017 PAGE: THREE ITEMIZED PRODUCT LISTING SPECIAL EFFECT BARRAGES 3 - 100-SHOT WATERFALL MINE W/BLUE TIP BARRAGE (Golden silk Brocade threads propel into the air and cascade over in blue tips) 3 - 100-SHOT “Zipper” BROCADE CROWN W/GREEN STROBE BARRAGE (Brocade Crown Comets w/Green strobe flowers) 2 - 100-SHOT BROCADE AERIAL MINE BARRAGE (Brocade Flowers in fan pattern) 2 - 210-SHOT “Zipper” SILVER RHYME OF DANCING BARRAGE (Green and Gold Comets weave back and forth across the sky) 2 - 100-SHOT CRACKLING SILVER “ZIPPER” BARRAGES (Silver Crackling Comets) OPENING SHELLS (24 Shells) 20 – 3” SALUTES (2 – 10/3” Salute Chain, used for “Opening Announcement Bombs”) 2 – 5” SILVER CROWN KIMURO SHELLS (Fired with Salutes for “Opening Announcement Shells”) 2 – 6” SILVER CROWN KIMURO SHELLS (Fired with Salutes for “Opening Announcement Shells”) GRAND AERIAL FINALES 90 – 3” RED FLOWER SHELLS (9 - 10/3" Red Flower Chains) 10 – 4” RED FLOWER SHELLS (2 – 5/4” Red Flower Chain) 90 – 3” BROCADE FLOWER SHELLS (9 - 10/3" Gold Flower Chains) 10 – 4” BROCADE FLOWER SHELLS (2 – 5/4" Gold Flower Chains) 1 – 6” BROCADE FLOWER SHELLS (1 – 6” Brocade Silk Shells) 1 – 8” BROCADE FLOWER SHELL (1 – 8” Brocade Silk Shell) P10 VI.a TO: MS. SANDRA DOEBLER EVENT: ASPEN NEW YEAR’S EVE DATE: DECEMBER 31, 2017 PAGE: FOUR GRAND AERIAL FINALES (continued) 90 – 3” BLUE FLOWER SHELLS (9 – 10/3" Blue Flower Chains) 10 – 4” BLUE FLOWER SHELLS (2 – 5/4” Blue Flower Chain) 20 – 3” SALUTE SHELLS (2 - 10/3" Salute Chains) 200 – 1” SALUTES (2 – 100-Shot Home Run Salute Barrages, fired with Salutes above in sequence to conclude display) THREE INCH SHELLS (300 Shells) 35 - COLOR & FANCY STAR SHELLS (Consisting of: Ruby, Blue, Emerald, Pearl, Yellow & Purple with Titanium Twinklers & Aluminum Flitters) 100 - ORIENTAL FLOWER PATTERNS (Consisting of: Chrysanthemum, Peonies & Dahlias) 15 - SPECIAL SHELLS (Consisting of: Whistles, Silver Wasps, Serpents, Fish, Gold & Silver Whirls, Diamond Screamers, etc.) 35 - PATTERN SHELLS (Consisting of: Rings, Spider Webs, Willows) 35 – PATRIOTIC DESIGNER SHELLS (Consisting of: Red & Blue Criss-Cross, Ruby & Sapphire Meteor, Red Magnesium Crackling Meteors, Blue Magnesium Crackling Meteors, Blue w/White Strobe core, Red w/White Strobe core, etc.) 35 – NEW PATTERN SHELLS (Consisting of: Poinsettia Multi-Color w/rising tail, Silver Wave Sunflower Ring w/Turquoise pistil w/silver tail, Bowtie w/red ring, Thousand Butterflies, and Orange and Purple Strobing Stars Brocade Ring w/purple pistils, etc.) 25 – NEW PASTEL EFFECT SHELLS (Consisting of: Cyan Peony w/Lemon Pistils, Cyan Peony w/Peach pistils, Lemon Chrys w/cyan pistils, Magenta Chrys w/aqua pistils, Magenta Chrys w/tourquoise pistils, and Orange Chrys w/magenta pistils, etc.) P11 VI.a TO: MS. SANDRA DOEBLER EVENT: ASPEN NEW YEAR’S EVE DATE: DECEMBER 31, 2017 PAGE: FIVE THREE INCH SHELLS (continued) 20 – SPECIAL-MADE COMPETITION SHELLS (Consisting of: Long duration Color-Changing Willows, Golden Silk Brocades, Silver Crown Kimuros, Color-changing Plumes, Long burning Solid color and Pastel color Octopus, Color Strobe Plumes, Pixie Dust Willows w/variegated pistils, Pastel-Color Plumes, Variegated Coconut Shells) FOUR INCH SHELLS (200 Shells) 35 - COLOR & FANCY STAR SHELLS (Consisting of: Ruby, Blue, Emerald, Pearl, Yellow & Purple with Titanium Twinklers & Aluminum Flitters) 70 - ORIENTAL FLOWER PATTERNS (Consisting of: Chrysanthemum, Peonies & Dahlias) 35 - PATTERN SHELLS (Consisting of: Rings, Spider Webs, Willows) 30 – PATRIOTIC DESIGNER SHELLS (Consisting of: Red & Blue Criss-Cross, Ruby & Sapphire Meteor, Red Magnesium Crackling Meteors, Blue Magnesium Crackling Meteors, Blue w/White Strobe core, Red w/White Strobe core, etc.) 30 – NEW PATTERN SHELLS (Consisting of: Poinsettia Multi-Color w/rising tail, Silver Wave Sunflower Ring w/Turquoise pistil w/silver tail, Bowtie w/red ring, Thousand Butterflies, and Orange and Purple Strobing Stars Brocade Ring w/purple pistils, etc.) FIVE INCH SHELLS (125 Shells) 25 - COLOR & FANCY STAR SHELLS (Consisting of: Ruby, Blue, Emerald, Pearl, Yellow & Purple with Titanium Twinklers & Aluminum Flitters) 50 - ORIENTAL FLOWER PATTERNS (Consisting of: Chrysanthemum, Peonies & Dahlias) 15 - PATTERN SHELLS (Consisting of: Rings, Spider Webs, Willows) 15 – PATRIOTIC DESIGNER SHELLS (Consisting of: Red Bees, Blue Bees, Blue Criss-Cross, Ruby & Sapphire Meteor, Red Magnesium Crackling Meteors, Blue Magnesium Crackling Meteors, Blue w/White Strobe core, Red w/core, etc) P12 VI.a TO: MS. SANDRA DOEBLER EVENT: ASPEN NEW YEAR’S EVE DATE: DECEMBER 31, 2017 PAGE: SIX FIVE INCH SHELLS (continued) 10 – NEW PATTERN SHELLS (Consisting of: Poinsettia Multi-Color w/rising tail, Silver Wave Sunflower Ring w/Turquoise pistil w/silver tail, Bowtie w/red ring, Thousand Butterflies, and Orange and Purple Strobing Stars Brocade Ring w/purple pistils, etc.) 10 – SPECIAL-MADE COMPETITION SHELLS (Consisting of: Long duration Color-Changing Willows, Golden Silk Brocades, Silver Crown Kimuros, Color-changing Plumes, Long burning Solid color and Pastel color Octopus, Color Strobe Plumes, Pixie Dust Willows w/variegated pistils, Pastel-Color Plumes, Variegated Coconut Shells) SIX INCH SHELLS (50 Shells) 12 - COLOR & FANCY STAR SHELLS (Consisting of: Ruby, Blue, Emerald, Pearl, Yellow & Purple with Titanium Twinklers & Aluminum Flitters) 14 - ORIENTAL FLOWER PATTERNS (Consisting of: Chrysanthemum, Peonies & Dahlias) 12 - PATTERN SHELLS (Consisting of: Rings, Spider Webs, Willows) 12 – PATRIOTIC DESIGNER SHELLS (Consisting of: Red & Blue Criss-Cross, Ruby & Sapphire Meteor, Red Magnesium Crackling Meteors, Blue Magnesium Crackling Meteors, Blue w/White Strobe core, Red w/White Strobe core, etc.) EIGHT INCH SHELLS (15 Shells) 8 – NEW PATTERN SHELLS (Consisting of: Poinsettia Multi-Color w/rising tail, Silver Wave Sunflower Ring w/Turquoise pistil w/silver tail, Bowtie w/red ring, Thousand Butterflies, and Orange and Purple Strobing Stars Brocade Ring w/purple pistils, etc.) 7 - ORIENTAL FLOWER PATTERNS (Consisting of: Chrysanthemum, Peonies & Dahlias) P13 VI.a TO: MS. SANDRA DOEBLER EVENT: ASPEN NEW YEAR’S EVE DATE: DECEMBER 31, 2017 PAGE: SEVEN INSURANCE ON DISPLAY $5,000,000 Fireworks Liability Coverage for Broad Form, Contractual, Bodily Injury & Property Damage (additional insureds included) Colorado Worker’s Compensation Coverage on technicians (statutory limits) MATERIALS & EQUIPMENT All mortars, racks and other equipment are provided on loan-basis and are the property of Western Enterprises, Inc. 300-SHOT FIRING SYSTEM (COMPLETE) 180-SHOT FIRING SYSTEM (with 6 rails and 6 cables) TOTAL CONTRACT PRICE-- - - $28,000.00 P14 VI.a From:Linda Manning To:Linda Manning Subject:RE: New Year"s Eve Fireworks Contract, City Council Meeting Date:Tuesday, September 19, 2017 7:18:50 AM Attachments:image001.png image003.png From: "Sandra Doebler" <sandra.doebler@cityofaspen.com> To: "Nancy Lesley" <nancy.lesley@cityofaspen.com> Subject: FW: New Year's Eve Fireworks Contract, City Council Meeting Sandra Doebler Special Events Coordinator|City of Aspen|Aspen Recreation (970)429-2093 |F (970)544-9447|www.aspenrecreation.com From: Tim Cottrell [mailto:Tim.Cottrell@sothebysrealty.com] Sent: Monday, September 18, 2017 1:37 PM To: Sandra Doebler <sandra.doebler@cityofaspen.com> Cc: Jim Burnett <jamesb@fireworksbywestern.com> Subject: Re: New Year's Eve Fireworks Contract, City Council Meeting Sandra, Thank you for your note concerning the fireworks permit for New Year's Eve, 2018. As we discussed, the Marketing Dept. is concerned that City Council may request separate bids for these shows as a means to secure a better price. As I have been involved with the production and management of fireworks on Aspen Mt. since 1974, I’m happy to provide my opinion on this topic. Your letter to Council dated Sept. 13 addresses this issue correctly under the “Discussion” paragraph. While Western Enterprises has been our provider since 2013, I also worked closely with Americana Fireworks, our previous provider for over 30 years. It is an expensive proposition to produce these shows, even with the volume we deliver in the Roaring Fork Valley. Especially since 9-11, the cost of transportation, training, storage, product cost, safety and security have all increased. The budgets on the other hand have not increased at a similar level. While it may be possible to have a contractor from another company give you a lessor bid for a show, Western Enterprises is here for the long haul and also produces the shows for Snowmass Village, Wildcat Ranch and the Roaring Fork Club. In addition they produce shows for Avon, Vail, Crested Butte, Blackhawk and the City of Denver to name a few in Colorado. This is a very dedicated, professional pyrotechnic company and I strongly recommend we stay the course. I am traveling back to Aspen on Monday and if I make town in time for the meeting with City Council, I will gladly stop by to answer any questions that may remain. Otherwise please deliver this letter as my response. Best regards, Tim Cottrell Certified Display Operator Aspen Pyrotechnic Team Tim Cottrell P15 VI.a Broker Associate Aspen Snowmass Sotheby's International Realty 415 East Hyman Avenue Aspen, CO 81611 970 925-6060 Office 970 379-0999 Cell 970 920-9993 Fax tim.cottrell@sir.com www.AspenSnowmassSIR.com On Sep 13, 2017, at 9:25 AM, Sandra Doebler <sandra.doebler@cityofaspen.com> wrote: <2017nyefireworks_memo.doc> P16 VI.a Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Shirley Ritter, Kids First Director THRU: Sara Ott, Assistant City Manager DATE OF MEMO: 9-1-2017 MEETING DATE: 9-25-2017 RE: Resolution #120, Contract for HVAC software control Maintenance Services for Yellow Brick REQUEST OF COUNCIL: Council review and approval of 5-year contact with Alerton Technology Services in the amount of $55,720.00. PREVIOUS COUNCIL ACTION: None BACKGROUND: These services have been provided on an annual basis for several years; because this is a 5-year agreement, the amount requires council action. DISCUSSION: Kids First began managing the Yellow Brick Building in 2004. At that time the HVAC system had recently been replaced, including the computer management system. Alerton Technology Services (ATS) has provided software update, maintenance of the system, training, trouble shooting, and both on-site and on-line response. ATS has been an integral part of the overall efficiency and pro-active management of the HVAC system continuously during the 13 years Kids First has managed the Yellow Brick Building. This contract is an acknowledgement of our intention to continue this agreement, and create an efficiency for the city; at the same time allow for changes over time, if this agreement no longer meets our needs or expectations. There are no impacts to zoning, parking, noise etc.; financial impacts and environmental impacts are addressed below. FINANCIAL/BUDGET IMPACTS: This contract is reflective of costs currently being paid annually, and of services being provided. This amount is included in the Kids First operating budget for the Yellow Brick Building each year; this would continue to be an annual payment. There is no budget amendment or supplemental being requested. P17 VI.b Page 2 of 2 ENVIRONMENTAL IMPACTS: Sustainability initiative? Yes Outcome area affected: Energy Key metric affected: This on-going maintenance allows the current HVAC to continue to operate as efficiently as possible, until the time that a new HVAC system is warranted for the building. RECOMMENDED ACTION: Staff recommends Resolution #120 be approved and executed for the contract with ATS. ALTERNATIVES: If Council does not want to approve the staff recommendation, staff will revert to annual contracts for this service. PROPOSED MOTION: I move to approve Resolution #120, contact with Allerton Technology Services in the amount of $55,720.00 for HVAC maintenance services. CITY MANAGER COMMENTS: ATTACHMENTS: A – Resolution 120, Series of 2017 B – Professional Services Agreement P18 VI.b RESOLUTION #120 (Series of 2017) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND ATS ROCKY MOUNTAIN 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 annual HVAC maintenance between the City of Aspen and ATS Rocky Mountain 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 annual HVAC maintenance between the City of Aspen and ATS Rocky Mountain 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 25th day of September, 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 September 25, 2017. Linda Manning, City Clerk P19 VI.b Agreement Professional Services Page 0 CITY OF ASPEN STANDARD FORM OF AGREEMENT V 2009 PROFESSIONAL SERVICES City of Aspen Project No.: 2017-066. AGREEMENT made as of 25th day of August, in the year 2017. BETWEEN the City: Contract Amount: The City of Aspen c/o Kids First 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5079 And the Professional: ATS Rocky Mountain c/o Matt Gompert 8200 S. Akron Street, #117 Centennial, CO 80112 Phone: 303-799-1887 For the Following Project: Annual HVAC Maintenance 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: ___________________________ Resolution No.:___________________ Exhibit A: Scope of Work. Exhibit B: Fee Schedule. Total: $55,720.00 over a Five Year Period P20 VI.b Agreement Professional Services Page 1 The City and Professional agree as set forth below. 1. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein. 2. Completion. Professional shall commence Work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed on an annual basis. Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment. In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed the amount set forth above. Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assignability. Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors’ officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor. 5. Termination of Procurement. 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. 6. Termination of Professional Services. The Professional or the City may terminate the Professional Services component of this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of P21 VI.b Agreement Professional Services Page 2 this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set-off until such time as the exact amount of damages due the City from the Professional may be determined. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent and for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. Professional's Insurance. (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations P22 VI.b Agreement Professional Services Page 3 assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers’ Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workers' Compensation requirements of this paragraph. (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non- owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. P23 VI.b Agreement Professional Services Page 4 (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided to the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper- ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk Management Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 11. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written P24 VI.b Agreement Professional Services Page 5 representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. Illegal Aliens – CRS 8-17.5-101 & 24-76.5-101. (a) Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. “Basic Pilot Program” means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public P25 VI.b Agreement Professional Services Page 6 Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. “Public Contract for Services” means this Agreement. “Services” means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. (c) By signing this document, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not illegal aliens. (d) Professional hereby confirms that: (i) Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Professional shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Professional is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Professional shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. P26 VI.b Agreement Professional Services Page 7 (v) If Professional obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Professional shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Professional violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Professional’s violation of Subsection 8-17.5-102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 16. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. (a) Professional 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 Professional for the purpose of securing business. (b) Professional agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, P27 VI.b Agreement Professional Services Page 8 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) Professional 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 Professional, 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 Professional; and 4. Recover such value from the offending parties. 17. 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 utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 18. General Terms. (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. P28 VI.b Agreement Professional Services Page 9 (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 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. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. CITY OF ASPEN, COLORADO: PROFESSIONAL: ________________________________ ______________________________ [Signature] [Signature] By: _____________________________ By: _____________________________ [Name] [Name] Title: ____________________________ Title: ____________________________ Date: ___________________ Date: ___________________ Approved as to form: _______________________________ City Attorney’s Office P29 VI.b Agreement Professional Services Page 10 EXHIBIT A PROFESSIONAL SERVICES AGREEMENT Building Automation Control System Services: 1. Alerton Technology Updates · Alerton Software Updates 2. System Performance Services; On-Line/ On-site Services · Troubleshooting and Diagnostics · Building Control System Database Protection · Building Control System Analysis · Flex-Hours Support 3. Central Equipment Performance Testing · Air Handler Performance Testing · Boiler/Hot Water System Performance Testing 4. Customer Training · On-Site Informal Operator Training/Software Consultation 5. Emergency Response Services (Standard) · On-Line Response (Direct Connect or via Telephone) · On-Site Response 6. General Services; Included in All Support Agreements · Account Management · Documentation of All Services Provided · Quality Assurance Program · Discounted Material & Labor Rates 1. Technology Updates Alerton periodically releases software updates that provide added features, increase communications and processing speed for the Alerton Control System. ATS will provide software only updates as they become available, always keeping your system software state-of- the-art. Platform upgrades, hardware, operating system or other 3rd-party software updates or upgrades are not included. 2. System Performance Services; On-Line/ On-Site Services A. Online Services Troubleshooting and Diagnostics Assistance (normal working hours): ATS will provide limited troubleshooting and diagnostics assistance via telephone, modem and/or Internet during normal working hours. ATS will sign-on to the system as a first step to the request or inquiry. ATS operations personnel will try to fix the problem, or at a minimum, scope the problem down to a specific item or group of items. The operations group will contact Kids First when the sign-on is completed and conclusions have been reached. This service does not included after-hours support. P30 VI.b Agreement Professional Services Page 11 B. Onsite Services Building Control System Database Protection ATS will back-up the HVAC Control System database, software, and graphics a minimum of one (1) time per year, and provide safe storage of this information. Should a catastrophic event occur, ATS will respond onsite (or online) to reload the databases and system files from the stored backup copy and to ensure proper operation and performance. Repair costs and the costs to reload the databases and system file will be at the preferred material and labor rate stated herein. Performed annually. Building Control System Analysis The DDC control system is a very dynamic and interactive system. As such, its operations, graphics, and programming intentionally and unintentionally change over time. With Control System Analysis service includes: 1. Inspect the physical and electrical condition of each global controller. 2. Perform a sequence of operations review 3. File & database analysis 4. Review alarms, trend logs, schedules and energy log reporting. 5. Perform Compass server computer performance optimization. New reports are compared to the prior status report. ATS will meet with staff to discuss the effects of the changes on the operation of the Alerton building control system. Performed annually. Flex-Hours Support Services Flex-hours support, as it is needed, whether it is online support from ATS’ office, or for an on- site visit from a service technician. Eight (8) hours of flex-hours support included annually. 3. Central Equipment Functional Performance Testing Air Handler Functional Performance Testing ATS will analyze the performance of the HVAC air handling systems two (2) times per year: Spring & Fall. During the spring service, ATS will focus on the operation of the air handler cooling system control loops: outside air dampers, mixed air dampers, chilled water valve actuators, temperature sensors. During the fall service, ATS will focus on the operation of the air handler heating system control loops: outside air dampers, mixed air dampers, heating valve actuators, temperature sensors, water coil freeze protection sensors and temperature alarms. Boiler/Hot Water System Functional Performance Testing As part of this performance service one (1) time per year ATS will run an operational controls sequence to test the full range of the boiler and hot water distribution system. ATS will analyze the hot water supply temperatures at low and full-fire conditions; verify temperature set point reset operations, boiler alarm interface to the Alerton DDC system, and the lead/lag operations of the hot water system. Performed annually. P31 VI.b Agreement Professional Services Page 12 5. Customer Training On-Site Training/Operator Coaching ATS will introduce, review and reinforce user skills, leading to greater utilization of HVAC Control System applications implemented in your facility. Coaching for Kids First facility staff has be performed Monday through Friday 8:00 a.m. to 5:00 p.m. ATS systems experts assist operators in identifying, verifying and resolving problems found in executing tasks. During the training/coaching sessions, ATS will address logbook issues, assist operators in becoming more self-sufficient, and tailor HVAC Control System applications to the needs of the facility and to operators’ specific job responsibilities. Four (4) hours included annually. 6. Emergency Response Services After-Hours Support: ATS has available a 24-7 emergency answering service that can be utilized in an after-hours emergency situation by calling 303-799-1887. Emergency services are billed via the rates listed in Exhibit B. 7. General ATS Customer Support Agreement Features · Account Manager - A dedicated Account Manager will be responsible to provide the designated services, monitor equipment performance, track equipment service history, and consult with Kids First. · Dedicated Service Team - A Primary and a Secondary ATS Service Technician will be assigned to Kids First’s account. Service technicians shall be factory trained on Alerton equipment, and specialists in maintaining and troubleshooting the system. · Documentation - All service visits shall be documented by a work order detailing the service performed, materials used, and hours spent. System and Service Log - ATS will provide a log for documentation of concerns, system problems, and other related items requiring attention. Each scheduled service visit shall begin with a review of the log. · Price Advantage- Discounted Labor and Material – Kids First will receive a discount off the normal labor and material prices approximately an 18% discount on labor and an additional 22% discount on material. Any components listed in the Alerton Controls Price List your multiplier will be .45 times List Price. P32 VI.b Agreement Professional Services Page 13 EXHIBIT B PROFESSIONAL SERVICES AGREEMENT Fee Schedule Pricing for services based on a 5-year program, billed monthly at the beginning of the contract year. Year 1: $10,391 beginning January 1, 2018 Year 2: $10,755 beginning January 1, 2019 Year 3: $11,131 beginning January 1, 2020 Year 4: $11,520 beginning January 1, 2021 Year 5: $11,923 beginning January 1, 2022 Labor Rates for Additional Services: Standard Time & Material Rate (M-F 8 AM to 5 PM) excl. Holidays Preferred Time & Material Rate (M-F 8 AM to 5 PM) excl. Holidays Standard Overtime Rate (M-F 5 PM to 8 AM, Sat, Sun & Holidays) Preferred Overtime Rate (M-F 5 PM to 8 AM, Sat, Sun & Holidays) Service Engineer $ 135.00 $ 105.00 $ 185.00 $ 145.00 Account Manager $ 135.00 $ 105.00 $ 185.00 $ 145.00 P33 VI.b MEMORANDUM TO: Mayor and City Council FROM : Peter Rice, P.E., Senior Project Manager THRU: Trish Aragon, P.E., City Engineer DATE OF MEMO: September 18th, 2017 MEETING DATE: September 25th, 2017 RE: Mill Street and Main Street Intersection Improvements (Resolution #110, Series of 2017) SUMMARY: Staff recommends Council approval of the Mill Street and Main Street Intersection Improvements (Resolution #110, Series of 2017) contract with Haselden Construction, Inc. in the amount of $143,884 plus additional 5% contingency. BACKGROUND: This project follows the ideals of The City of Aspen Civic Master Plan (CMPAG) adopted by City Council in December 2006. The Plan states: “Aspen’s future should be one in which the automobile plays a smaller role in people’s everyday lives. Other modes of travel should be made as safe and convenient as possible to facilitate that goalthe level of investment inmor e and better bikeways and walkways should increase.” In the spring of 2015, CDOT placed a new signal pole at the Mill and Main Streets intersection. During a July 28th, 2015 Work Session, Engineering was directed by Council to provide a traffic study at that time due to concerns from citizens on the level of service for this intersection. The study lead to improvement recommendations at a Work Session on February 2, 2016. Council directed staff to proceed with the construction drawings for improvements that were recommended on the intersection at that meeting. The scope of work for this phase includes the realignment of striping to allow a right only turn onto Main Street from Mill Street to head west. The modification to the center lane will be the combination of a Mill Street through and left turn onto Main Street. The bike lane will then be placed between these two lanes to allow a right turn vehicle movement without bikes prohibiting their movement. The work to complete this configuration includes relocation of signs, striping, detection loops and the addition of a bike detector on the traffic light including a bike box. P34 VI.c Staff utilized the proposal provided by the contractor who is currently working on the Hotel Jerome Improvements. The proposal implemented their competitive bid prices to yield the greatest economies of scale, minimize disturbance, and produce the highest quality finished product. The contractor used for this project will be Haselden Construction. The schedule for the work will be done with the work that Haselden Construction is doing on the Hotel Jerome. It is anticipated this work will occur during the month of October prior to the end of Right-of-Way work. However, there will be allowance for additional work to be finalized in April of 2018. DISCUSSION: The Mill Street and Main Street Intersection Improvements (Resolution #110, Series of 2017) construction bid prices from Haselden Construction established through the Hotel Jerome’s contractor selection. The construction bid for this project is summarized below: Haselden Construction $ 143,884.00 Staff evaluated the bid in the best interests of the City of Aspen. In making that evaluation, total price, key project staffing, project experience, specialty work experience, subcontractor’s experience and criteria set forth in bidding documents were used to make the selection. Staff determined Haselden was responsive to the evaluation criteria and could complete the scope of work outlined for this project. Staff recommends that it is in the City’s best interests to award the final construction contract to this vendor. P35 VI.c FINANCIAL IMPLICATIONS: Funding Allocated Main Street Pedestrian Improvements (000.327.81200.52130.50017) $117,958.00 Concrete Replacement (000.327.81200.53399.50465) $32,926.00 2017 Expenditures Haselden Construction $143,884.00 Contingency (5% of Total Cost) $7,000.00 Total Cost for Project $150,884.00 RECOMMENDATION: Staff recommends Council approve the Mill Street Complete Streets: Main Street (SH82) and Mill Street Traffic Improvements contract with Haselden Construction, Inc. in the amount of $150,884.00. PROPOSED MOTION: “I move to approve Resolution No. 110, Series of 2017.” CITY MANAGER COMMENTS: Attachment A: Construction Contract – Haselden Construction. Attachment B: Mill Street Complete Street Plan Set P36 VI.c RESOLUTION #110 (Series of 2017) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND HASELDEN CONSTRUCTION, 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 Mill Street and Main Street Intersection Improvements between the City of Aspen and Haselden Construction 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 Mill Street and Main Street Intersection Improvements between the City of Aspen and Haselden Construction 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 in substantially the form attached hereto, subject to the approval of the City Manager and the City Attorney. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of September 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 September 25, 2017. Linda Manning, City Clerk P37 VI.c AIA ® Document A105TM – 2007 Standard Form of Agreement Between Owner and Contractor for a Residential or Small Commercial Project AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 1 ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. State or local law may impose requirements on contracts for home improvements. If this document will be used for Work on the Owner’s residence, the Owner should consult local authorities or an attorney to verify requirements applicable to this Agreement. ELECTRONIC COPYING of any portion of this AIA® Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document. AGREEMENT made as of the «___September » day of «___325____ » in the year «20 17 » (In words, indicate day, month and year.) BETWEEN the Owner: (Name, legal status, address and other information) »The City of Aspen 130 South Galena Street Aspen, CO 81611-1975 and the Contractor: (Name, legal status, address and other information) »Haselden Construction, LLC 6950 S. Potomac Street Centennial, Colorado 80112 for the following Project: (Name, location and detailed description) « __Mill Street Complete Street_________________» «__Contract will be based on the drawings provided to Haselden with a date 9/21/16 indicated on the cover sheet. The project is located on Mill Street and at the intersection of Main Street within the City of Aspen limits. The general scope of work includes roadway striping removal and replacement on Mill Street and the eastbound turn striping on Main Street. Adjustments to the signals, loop detection and signage to the intersection are included in the _scope. Traffic control and meeting COA permitting is to be included within the scope of the project.________________ » «___________________ » The Architect: (Name, legal status, address and other information) «Civil Engineer JR Engineering 7200 South Alton Way, Suite C400___________________ »« » Centenial, CO 80112« ___________________ » «Eli Farney ___________________ » « ___________________ » The Owner and Contractor agree as follows. Formatted: Font color: Text 1 Formatted: Font color: Text 1 Formatted: Font color: Text 1, Pattern: Clear P38 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 2 TABLE OF ARTICLES 1 THE CONTRACT DOCUMENTS 2 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION DATE 3 CONTRACT SUM 4 PAYMENT 5 INSURANCE 6 GENERAL PROVISIONS 7 OWNER 8 CONTRACTOR 9 ARCHITECT 10 CHANGES IN THE WORK 11 TIME 12 PAYMENTS AND COMPLETION 13 PROTECTION OF PERSONS AND PROPERTY 14 CORRECTION OF WORK 15 MISCELLANEOUS PROVISIONS 16 TERMINATION OF THE CONTRACT 17 OTHER TERMS AND CONDITIONS ARTICLE 1 THE CONTRACT DOCUMENTS § 1.1 The Contractor shall complete the Work described in the Contract Documents for the Project. The Contract Documents consist of the plan set for Mill Street Complete Set- Main Street (SH82) and Mill Street Traffic Improvements dated 9-21-16 .1 this Agreement signed by the Owner and Contractor; .2 Mill Street Complete Set- Main Street (SH82) and Mill Street Traffic Improvements dated 9-21-16 the drawings and specifications prepared by the Architect, as set forth in Contractor’s Cost Proposal, attached as Exhibit A. .3 written orders for changes in the Work issued after execution of this Agreement; and .4 other documents, if any, identified as follows: « None. »A proposal dated August 21, 2017 submitted by Brad Nobbe from Haselden Construction forin the amount of $143,884. § 1.1 Precedence of Contract Documents The Contract governs over the Contract Documents. A Change Order governs over all other Contract Documents impacted by change. Mill Street Complete Set – Main Street (SH82) and Mill Street Traffic Improvements dated 9-21-16, drawings, specifications, and general conditions govern over the proposal dated 8-21-17 submitted by Brad Nobbe from Haselden Construction. Formatted: Indent: Left: 0 pt P39 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 3 ARTICLE 2 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION The number of calendar days available to the Contractor to substantially complete the Work is the Contract Time. The date of commencement of the Work shall be the date (iOctober 1, 2017) the Owner issues a written notice to proceed, (ii) written confirmation is received by the Contractor that the Owner’s funding sources are in place for the Project, and (iii) the required building permits have been received by the Contractor (the "Construction Notice"). The Contractor shall substantially complete the Work, no later than «June 1, 20178 __________» ( «__243_ » ) calendar days from the date of the Construction Notice, subject to adjustment as provided in Article 10 and Article 11. « » ARTICLE 3 CONTRACT SUM § 3.1 Subject to additions and deductions in accordance with Article 10, the Contract Sum is: « __One hundred, forty three thousand, eight hundred and eight four_____________ dollars » ($ «_143,884.00_________ » ), as set forth in Contractor’s Cost Proposal, attached as Exhibit A. § 3.2 For purposes of payment, the Contract Sum includes the following values related to portions of the Work: (Itemize the Contract Sum among the major portions of the Work.) Portion of Work Value See Exhibit A. 143,884.00 § 3.3 Unit prices, if any, are as follows: (Identify and state the unit price; state the quantity limitations, if any, to which the unit price will be applicable.) Item Units and Limitations Price per Unit ($ 0.00) See Exhibit A. § 3.4 Allowances included in the Contract Sum, if any, are as follows: (Identify allowance and state exclusions, if any, from the allowance price.) Item Price See Exhibit A. § 3.5 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If the bidding or proposal documents permit the Owner to accept other alternates subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires.) « See Exhibit A.» § 3.6 The Contract Sum shall include all items and services necessary for the proper execution and completion of the Work. ARTICLE 4 PAYMENT § 4.1 Based on Contractor’s Applications for Payment certified by the Architect, the Owner shall pay the Contractor, in accordance with Article 12, as follows: (Insert below timing for payments and provisions for withholding retainage, if any.) «Owner shall pay Contractor within fifteen thirty (1530) days following receipt of the Contractor’s Applications for Payment. » § 12.2.3 Retainage of five percent (5%) will be withheld. § 4.2 Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at the rate below, or in the absence thereof, at the legal rate prevailing at the place of the Project. « monthly rate of One Percent (1%), compounded monthly. » « » Formatted: Pattern: Clear, Highlight P40 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 4 ARTICLE 5 INSURANCE § 5.1 The Contractor shall provide Contractor’s general liability and other insurance as follows: (Insert specific insurance requirements and limits.) Type of insurance Limit of liability ($ 0.00) See Insurance Summary, attached as Exhibit BB. Payment and Performance Bonds Contractor Insurance: General Liability Automobile Liability Excess Liability Umbrella Pollution Liability Insurance Workers Compensation Employers Liability Builders Risk Insurance 5,461.65 Each in the full Contract amount. $2 million per occurrence $3 million aggregate $3 million completed operations $1 million covering owned, hired and non-owned automobiles $3 million per occurrence (following form on employer’s liability, general liability and automobile coverages and excess liability or umbrella limits may be combined with employer’s liability, general liability and automobile coverages to meet the limits required in the Contract) $2 million per occurrence $3 million aggregate Colorado statutory limits $1 million/ $1 million/ $1 million In the full Contract amount § 5.2 The Owner shall provide property insurance to cover the value of the Owner’s property, including any Work provided under this Agreement. The Contractor is entitled to receive an increase in the Contract Sum equal to the insurance proceeds related to a loss for damage to the Work covered by the Owner’s property insurance. § 5.3 The Contractor shall obtain an endorsement to its general liability insurance policy to cover the Contractor’s obligations under Section 8.12. § 5.4 Each party shall provide certificates of insurance showing their respective coverages prior to commencement of the Work. § 5.5 Unless specifically precluded by the Owner’s property insurance policy, the Owner and Contractor waive all rights against (1) each other and any of their subcontractors, suppliers, agents and employees, each of the other; and (2) the Architect, Architect’s consultants and any of their agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance or other insurance applicable to the Work. § 5.6 Governmental Immunity: The parties hereto understand and agree that Owner is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to Owner, its officers, or its employees. §5.7 Owner’s Insurance: The parties hereto understand that the Owner is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Contractor for inspection during normal business hours. Owner makes no representations whatsoever with respect to specific coverages offered by CIRSA. Owner shall provide reasonable notice of any changes in its membership or participation in CIRSA. P41 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 5 ARTICLE 6 GENERAL PROVISIONS § 6.1 THE CONTRACT The Contract represents the entire and integrated agreement between the parties and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written modification in accordance with Article 10. § 6.2 THE WORK The term "Work" means the construction and services required by the Contract Documents, and includes all other labor, materials, equipment and services provided, or to be provided, by the Contractor to fulfill the Contractor’s obligations. § 6.3 INTENT The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. § 6.4 OWNERSHIP AND USE OF ARCHITECT’S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS Documents prepared by the Architect are instruments of the Architect’s Owners’s service for use solely with respect to this Project. The Architect Owner shall retain all common law, statutory and other reserved rights, including the copyright. The Contractor, subcontractors, sub-subcontractors, and material or equipment suppliers are authorized to use and reproduce the instruments of service solely and exclusively for execution of the Work. The instruments of service may not be used for other Projects or for additions to this Project outside the scope of the Work without the specific written consent of the Architect. § 6.5 Electronic Notice Written notice under this Agreement may be given by one party to the other by email as set forth below. For the City of Aspen Pete Rice City of Aspen Engineering Department Civil Engineer/Project Manager Pete.rice@cityofaspen.com Require a Read Receipt for all email transmissions (Insert requirements for delivering written notice by email such as name, title, and email address of the recipient, and whether and how the system will be required to generate a read receipt for the transmission.) ARTICLE 7 OWNER § 7.1 INFORMATION AND SERVICES REQUIRED OF THE OWNER § 7.1.1 If requested by the Contractor, the Owner shall furnish all necessary surveys and a legal description of the site. § 7.1.2 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, the Owner shall obtain and pay for other necessary approvals, easements, assessments and charges. § 7.2 OWNER’S RIGHT TO STOP THE WORK If the Contractor fails to correct Work which is not in accordance with the Contract Documents, the Owner may direct the Contractor in writing to stop the Work until the correction is made. § 7.3 OWNER’S RIGHT TO CARRY OUT THE WORK If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies, correct such deficiencies. In such case, the Contract Sum shall be adjusted to deduct the cost of correction from payments due the Contractor. Field Code Changed P42 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 6 § 7.4 OWNER’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § 7.4.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner’s own forces, and to award separate contracts in connection with other portions of the Project. § 7.4.2 The Contractor shall coordinate and cooperate with the Owner’s own forces and separate contractors employed by the Owner. § 7.4.3 Costs caused by delays or by improperly timed activities or defective construction shall be borne by the party responsible therefor. ARTICLE 8 CONTRACTOR § 8.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 8.1.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. § 8.1.2 The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the Owner. Before commencing activities, the Contractor shall (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to the Contractor with the Contract Documents; and (3) promptly report errors, inconsistencies or omissions discovered to the Architect. § 8.2 CONTRACTOR’S CONSTRUCTION SCHEDULE The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner’s and Architect’s information a Contractor’s construction schedule for the Work. § 8.3 SUPERVISION AND CONSTRUCTION PROCEDURES § 8.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work. § 8.3.2 The Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the names of subcontractors or suppliers for each portion of the Work. The Contractor shall not contract with any subcontractor or supplier to whom the Owner or Architect have made a timely and reasonable objection. § 8.4 LABOR AND MATERIALS § 8.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work. § 8.4.2 The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other persons carrying out the Contract Work. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. § 8.5 LICENSURE OF CONTRACT Contractor hereby represents and warrants to City that Contractor is duly licensed as a general contractor in the State of Colorado, and if applicable, in the County of Pitkin. § 8.5 WARRANTY The Contractor warrants to the Owner and Architect that: (1) materials and equipment furnished under the Contract will be new and of good quality unless otherwise required or permitted by the Contract Documents; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Contract Documents. § 8.6 TAXES The Contractor shall pay sales, consumer, use and similar taxes that are legally required when the Contract is executed. Formatted: AIA Agreement Body Text P43 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 7 § 8.7 PERMITS, FEES AND NOTICES § 8.7.1 The Contractor shall obtain and pay for the building permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work. § 8.7.2 The Contractor shall comply with and give notices required by agencies having jurisdiction over the Work. If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume full responsibility for such Work and shall bear the attributable costs. The Contractor shall promptly notify the Architect in writing of any known inconsistencies in the Contract Documents with such governmental laws, rules and regulations. § 8.8 SUBMITTALS The Contractor shall promptly review, approve in writing and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents. Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. § 8.9 USE OF SITE The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits, the Contract Documents and the Owner. § 8.10 CUTTING AND PATCHING The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. § 8.11 CLEANING UP The Contractor shall keep the premises and surrounding area free from accumulation of debris and trash related to the Work. At the completion of the Work, the Contractor shall remove its tools, construction equipment, machinery and surplus material; and shall properly dispose of waste materials. § 8.12 INDEMNIFICATION To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect’s consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. ARTICLE 9 ARCHITECT § 9.1 The Architect will provide administration of the Contract as described in the Contract Documents. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents. § 9.2 The Architect will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the Work. § 9.3 The Architect will not have control over or charge of, and will not be responsible for, construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor’s responsibility. The Architect will not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents. § 9.4 Based on the Architect’s observations and evaluations of the Contractor’s Applications for Payment, the Architect will review and certify the amounts due the Contractor. § 9.5 The Architect has authority to reject Work that does not conform to the Contract Documents. § 9.6 The Architect will promptly review and approve or take appropriate action upon Contractor’s submittals, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. P44 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 8 § 9.7 The Architect will promptly interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request from either the Owner or Contractor. § 9.8 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions rendered in good faith. § 9.9 The Architect’s duties, responsibilities and limits of authority as described in the Contract Documents shall not be changed without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld. ARTICLE 10 CHANGES IN THE WORK § 10.1 The Owner, without invalidating the Contract, may order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly in writing. If the Owner and Contractor can not agree to a change in the Contract Sum, the Owner shall pay the Contractor its actual cost plus reasonable overhead and profit. § 10.2 The Architect will have authority to order minor changes in the Work not involving changes in the Contract Sum or the Contract Time and not inconsistent with the intent of the Contract Documents. Such orders shall be in writing and shall be binding on the Owner and Contractor. The Contractor shall carry out such orders promptly. § 10.3 If concealed or unknown physical conditions are encountered at the site that differ materially from those indicated in the Contract Documents or from those conditions ordinarily found to exist, the Contract Sum and Contract Time shall be subject to equitable adjustment. § 10.4 Notwithstanding anything in the Contract Documents to the contrary, Amendments, Construction Change Directives, or Change Orders shall not be binding on the City without an authorized signature in accordance with the City of Aspen Procurement Code. ARTICLE 11 TIME § 11.1 Time limits stated in the Contract Documents are of the essence of the Contract. § 11.2 If the Contractor is delayed at any time in progress of the Work by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor’s control, the Contract Time shall be subject to equitable adjustment. ARTICLE 12 PAYMENTS AND COMPLETION § 12.1 CONTRACT SUM The Contract Sum stated in the Agreement, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. § 12.2 APPLICATIONS FOR PAYMENT § 12.2.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the Architect an itemized Application for Payment for Work completed in accordance with the values stated in the Agreement. Such Application shall be supported by data substantiating the Contractor’s right to payment as the Owner or Architect may reasonably require. Payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment stored, and protected from damage, off the site at a location agreed upon in writing. § 12.2.2 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment, all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor’s knowledge, information and belief, be free and clear of liens, claims, security interests or other encumbrances adverse to the Owner’s interests. Formatted: Tab stops: 84.75 pt, Left + Not at 36 pt P45 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 9 § 12.2.3 Retainage of five percent (5%) will be withheld. § 12.3 CERTIFICATES FOR PAYMENT The Architect will, within seven days after receipt of the Contractor’s Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect’s reasons for withholding certification in whole or in part. § 12.4 PROGRESS PAYMENTS § 12.4.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in the manner provided in the Contract Documents. § 12.4.2 The Contractor shall promptly pay each subcontractor and supplier, upon receipt of payment from the Owner, an amount determined in accordance with the terms of the applicable subcontracts and purchase orders. § 12.4.3 Neither the Owner nor the Architect shall have responsibility for payments to a subcontractor or supplier. § 12.4.4 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the requirements of the Contract Documents. § 12.5 SUBSTANTIAL COMPLETION § 12.5.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so the Owner can occupy or utilize the Work for its intended use. § 12.5.2 When the Work or designated portion thereof is substantially complete, the Architect will make an inspection to determine whether the Work is substantially complete. When the Architect determines that the Work is substantially complete the Architect shall prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall establish the responsibilities of the Owner and Contractor, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. § 12.5.3 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for 200% of the value of the Work that is incomplete or not in accordance with the requirements of the Contract Documents. The value of the incomplete or noncompliant Work shall be based on the Cost to the Owner to complete or repair the Work using other Contractors. § 12.6 FINAL COMPLETION AND FINAL PAYMENT § 12.6.1 Upon receipt of a final Application for Payment, the Architect will inspect the Work. When the Architect finds the Work acceptable and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment. § 12.6.2 Final payment shall not become due until the Contractor submits to the Architect releases and waivers of liens, and data establishing payment or satisfaction of obligations, such as receipts, claims, security interests or encumbrances arising out of the Contract. § 12.6.3 Acceptance of final payment by the Contractor, a subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE 13 PROTECTION OF PERSONS AND PROPERTY The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, including all those required by law in connection with performance of the Contract. The Contractor shall take reasonable precautions to prevent damage, injury or loss to employees on the Work, the Work and materials and Formatted: No underline, Font color: Auto, Highlight P46 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 10 equipment to be incorporated therein, and other property at the site or adjacent thereto. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, or by anyone for whose acts the Contractor may be liable. ARTICLE 14 CORRECTION OF WORK § 14.1 The Contractor shall promptly correct Work rejected by the Architect as failing to conform to the requirements of the Contract Documents. The Contractor shall bear the cost of correcting such rejected Work, including the costs of uncovering, replacement and additional testing. § 14.2 In addition to the Contractor’s other obligations including warranties under the Contract, the Contractor shall, for a period of one year after Substantial Completion, correct work not conforming to the requirements of the Contract Documents. § 14.3 If the Contractor fails to correct nonconforming Work within a reasonable time, the Owner may correct it in accordance with Section 7.3. ARTICLE 15 MISCELLANEOUS PROVISIONS § 15.1 ASSIGNMENT OF CONTRACT Neither party to the Contract shall assign the Contract as a whole without written consent of the other. § 15.2 TESTS AND INSPECTIONS § 15.2.1 At the appropriate times, the Contractor shall arrange and bear cost of tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities. § 15.2.2 If the Architect requires additional testing, the Contractor shall perform those tests. § 15.2.3 The Owner shall bear cost of tests, inspections or approvals that do not become requirements until after the Contract is executed. § 15.3 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located. § 15.4 NON-DISCRIMINATION The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, marital status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. The Contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, sex, age, sexual orientation, handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. § 15.5 WARRANTIES AGAINST CONTINGENT FEES, GRATUITIES, KICKBACKS AND CONFLICT OF INTEREST § 15.5.1 The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon a Contract or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. § 15.5.2 The Contractor agrees not to give any employee or former 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 of 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 Contract or to any solicitation or proposal therefor. § 15.5.3 It shall be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or Formatted: AIA Agreement Body Text P47 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 11 on behalf of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person associated therewith, as an inducement for the award of a Subcontract or order. The Contractor is prohibited from inducing, by any means, any person employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regulations. § 15.6 ELECTRONIC SIGNATURES AND ELECTRONIC RECORDS § 15.6.1 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. ARTICLE 16 TERMINATION OF THE CONTRACT § 16.1 TERMINATION BY THE CONTRACTOR If the Architect fails to certify payment as provided in Section 12.3 for a period of 7 days through no fault of the Contractor, or if the Owner fails to make payment as provided in Section 12.4.1 for a period of 7 days, the Contractor may, upon seven additional days’ written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment for Work executed including reasonable overhead and profit, and costs incurred by reason of such termination. § 16.2 TERMINATION BY THE OWNER FOR CAUSE § 16.2.1 The Owner may terminate the Contract if the Contractor .1 repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the subcontractors; .3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or .4 is otherwise guilty of substantial breach of a provision of the Contract Documents. § 16.2.2 When any of the above reasons exist, the Owner, after consultation with the Architect, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor’s surety, if any, seven days’ written notice, terminate employment of the Contractor and may .1 take possession of the site and of all materials thereon owned by the Contractor, and .2 finish the Work by whatever reasonable method the Owner may deem expedient. § 16.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 16.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 16.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor shall pay the difference to the Owner. This obligation for payment shall survive termination of the Contract. § 16.3 TERMINATION BY THE OWNER FOR CONVENIENCE The Owner may, at any time, terminate the Contract for the Owner’s convenience and without cause. The Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed.In cases of such termination for the Owner’s convenience, the Owner shall pay the Contractor for Work properly executed; costs incurred by reason of termination, including the costs attributed to termination of Subcontractors; and the termination fee, if any, set forth in the Agreement. ARTICLE 17 OTHER TERMS AND CONDITIONS (Insert any other terms or conditions below.) Formatted: AIA Agreement Body Text Formatted: AIA Agreement Body Text Formatted: No underline, Font color: Auto, Highlight P48 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 12 «§ 17.1 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes: .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. «§ 17.2 Illegal Aliens – CRS 8-17.5-101 & 24-76.5-101 shall govern this contract and shall be in effect during the entire contracted time. § 17.3 Claims and Disputes § 17.3.1 Definition A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. The responsibility to substantiate Claims shall rest with the party making the Claim. § 17.3.2 Notice of Claims Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the Initial Decision Maker with a copy sent to the Construction Manager, including Claims under section 3.2.4. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. § 17.3.2.1 Claims against the Owner shall be in the form of a written notice containing the name and address of the claimant, and the name and address of the attorney, if any; a concise statement of the basis of the claim, including the date, time, place, and circumstance of the act, omission, or event complained of; a concise statement of the nature and extent of the injury claimed to have been suffered; and a statement of the amount of monetary damages that is being requested. § 17.3.4 Continuing Contract Performance Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section 9.7 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. The Architect will prepare Change Orders and issue Certificates for Payment in accordance with the decisions of the Initial Decision Maker. § 17.3.5 Claims for Additional Cost If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10.4. § 17.3.5.1 In no event shall adjustment to the Contract Sum be made for conditions of which the Contractor knew or should have been known, or which would have been noticed by a Contractor of similar experience pursuant to on-site inspection, by conditions referenced in any other inspections or tests concerning the site which have been made available to the Contractor, which have been performed by the Contractor or its subcontractors, or are part of the Contract Documents used in constructing the improvements. § 17.3.6 Claims for Additional Time § 17.3.6.1 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor’s Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary. § 17.3.6.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. § 17.3.6.3 Extensions of the Contract Time for delays due to weather conditions may be made only when such conditions are more severe and extended than those reflected by the ten-year average for the month as evidenced by Formatted: Font: Not Bold, No underline, Font color: Auto Formatted: Font: Not Bold Formatted: Font: Not Bold, No underline, Font color: Auto Formatted: Font: Not Bold Formatted: Font: Not Bold, No underline, Font color: Auto Formatted: Font: Not Bold, No underline, Font color: Auto Formatted: Font: Not Bold, No underline, Font color: Auto Formatted: Font: Not Bold Formatted: Font: Times New Roman, Not Bold, No underline, Font color: Auto Formatted: AIA Subheading Formatted: Font: Times New Roman, Not Bold, No underline, Font color: Auto Formatted: Font: Not Bold, No underline, Font color: Auto Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: (Default) Times New Roman, Not Bold P49 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 13 the Colorado Climate Data maintained by Colorado State University, Fort Collins, Colorado, or other data as mutually agreed between Owner and Contractor, for the project area. Extensions of time due to weather will be granted on the basis of one-and-four-tenths (1.4) calendar days added for every working day lost, with each separate extension figured to the nearest whole calendar day. The extension of the Contract Time for weather conditions will occur only in the event that the weather in question impacted activities on the critical path of the Contractor’s current Construction Schedule. § 17.4 Initial Decision § 17.4.1 Claims, excluding those arising under Sections 10.3, 10.4, 11.3.9, and 11.3.10, shall be referred to the Initial Decision Maker for initial decision. The Architect will serve as the Initial Decision Maker. Except for those Claims excluded by this Section 15.2.1, an initial decision shall be required as a condition precedent to mediation of any Claim arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Initial Decision Maker with no decision having been rendered. Unless the Initial Decision Maker and all affected parties agree, the Initial Decision Maker will not decide disputes between the Contractor and persons or entities other than the Owner. § 17.4.2 The Initial Decision Maker will review Claims and within ten days of the receipt of a Claim take one or more of the following actions: (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties that the Initial Decision Maker is unable to resolve the Claim if the Initial Decision Maker lacks sufficient information to evaluate the merits of the Claim or if the Initial Decision Maker concludes that, in the Initial Decision Maker’s sole discretion, it would be inappropriate for the Initial Decision Maker to resolve the Claim. § 17.4.3 In evaluating Claims, the Initial Decision Maker may, but shall not be obligated to, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Initial Decision Maker in rendering a decision. The Initial Decision Maker may request the Owner to authorize retention of such persons at the Owner’s expense. § 17.4.4 If the Initial Decision Maker requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of such request, and shall either (1) provide a response on the requested supporting data, (2) advise the Initial Decision Maker when the response or supporting data will be furnished or (3) advise the Initial Decision Maker that no supporting data will be furnished. Upon receipt of the response or supporting data, if any, the Initial Decision Maker will either reject or approve the Claim in whole or in part. § 17.4.5 The Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating that the Initial Decision Maker is unable to resolve the Claim. This initial decision shall (1) be in writing; (2) state the reasons therefor; and (3) notify the parties and the Architect, if the Architect is not serving as the Initial Decision Maker, of any change in the Contract Sum or Contract Time or both. The initial decision shall be final and binding on the parties but subject to mediation and, if the parties fail to resolve their dispute through mediation, to binding dispute resolution. § 17.4.6 Either party may file for mediation of an initial decision at any time, subject to the terms of Section 15.2.6.1. § 17.4.6.1 Either party may, within 30 days from the date of an initial decision, demand in writing that the other party file for mediation within 60 days of the initial decision. If such a demand is made and the party receiving the demand fails to file for mediation within the time required, then both parties waive their rights to mediate or pursue binding dispute resolution proceedings with respect to the initial decision. § 17.4.7 In the event of a Claim against the Contractor, the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor’s default, the Owner may, but is not obligated to, notify the surety and request the surety’s assistance in resolving the controversy. § 17.4.8 If a Claim relates to or is the subject of a mechanic’s lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines. Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: (Default) Times New Roman Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: (Default) Times New Roman Formatted: Font: Not Bold P50 VI.c AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 14:22:14 on 04/11/2014 under Order No.2642883314_1 which expires on 04/10/2015, and is not for resale. User Notes: (1181576535) 14 § 17.5 Mediation § 17.5.1 Claims, disputes, or other matters in controversy arising out of or related to the Contract except those waived as provided for in Sections 9.10.4, 9.10.5, and 15.1.6 shall be subject to mediation as a condition precedent to litigation. Venue and jurisdiction for any suit brought to enforce the terms of this Agreement shall be in Pitkin County District Court, State of Colorado. § 17.5.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be administered by the Judicial Arbiter Group, Denver, Colorado, in accordance with the Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of litigation proceedings but, in such event, mediation shall proceed within 60 days from the date of filing, unless stayed for a longer period by agreement of the parties. § 17.5.3 The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in Aspen, Colorado. Written agreements, executed by the parties, reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 17.6 Litigation § 17.6.1 Litigation. This Contract, and all matters interpreting it and arising under it shall be enforced in, and all parties do now submit to, the exclusive jurisdiction and venue of the District Court, City and County of Pitkin, State of Colorado, in the event of any litigation concerning this Contract, and regardless of where this Contract may be executed. Each party consents to and agrees to file a general appearance in the event that it receives service of process. § 17.6.2 Jury Trial Waiver. To the fullest extent permitted by law, Owner and Contractor specifically waive any right to a trial by jury in any court with respect to any contractual, tortious or statutory claim, counterclaim or cross-claim against the other arising out of or connected in any way to the project or the Contract Documents. The complex commercial and professional aspects of the Contract make a jury determination neither desirable nor appropriate. Contractor shall include this provision in all of its subcontracts and purchase orders. § 17.6.3 Removal Waiver. To the fullest extent permitted by law, Owner and Contractor specifically waive any right to remove any action to United States District Court for the District of Colorado, regardless of the presence of diversity of citizenship among or between the parties. Contractor shall include this provision in all of its subcontracts and purchase orders. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Article 16. » This Agreement entered into as of the day and year first written above. (If required by law, insert cancellation period, disclosures or other warning statements above the signatures.) « » OWNER (Signature) CONTRACTOR (Signature) « »« » « » « »« » « » (Printed name, title and address) (Printed name, title and address) Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: (Default) Times New Roman, Not Bold Formatted: Font: (Default) Times New Roman, Not Bold P51 VI.c August 21, 2017 Pete Rice City Of Aspen 201 N. Mill St Suite 203 Aspen, CO 81611 Reference: Mill Street Traffic Improvements Dear Mr. Rice: We are pleased to submit this Lump Sum proposal for your review pricing to provide all necessary labor, materials and equipment for the Mill Street improvements per JR Engineering plans dated 9/21/16 (Mill Street Complete Street) Base Bid:………………………………………………..$ 143,884 CLARIFICATIONS: · We have excluded any asphalt patching as none is shown · CDOT permit will be provided by City of Aspen · Conduit will need to be laid during the sidewalk work taking place in September & October 2017 · Bore of 21 feet must take place during Mill St sidewalk work September & October 2017 · Pricing does not include temporary striping at Mill St. · Re-Mobilization of painting operation only all other work to be completed in one mobilization DOCUMENTS: Our proposal is based off documents provided to the team by City of Aspen from JR Engineering Dated 9/21/2016. Sincerely, HASELDEN CONSTRUCTION Brad Nobbe Project Manger CC: Brian Hunt P52 VI.c Quote DIVISION 1 - PROJECT LOGISTICS 23,620.00$ 00B Site Logistics 14,500.00$ 01B Project Manager / Superintendent 9,120.00$ 01C Infection Control NIC 01D Snow Removal NIC 01E Surveying/As Builts NIC DIVISION 2 - DEMOLITION 2,000.00$ 02A - Demolition (Sawcut at Main & Mill)2,000.00$ DIVISION 3 - CONCRETE 2,000.00$ 03A Concrete (Patch back at Main & Mill)2,000.00$ DIVISION 4 - MASONRY -$ 04A Masonry NIC DIVISION 5 - STEEL -$ 05A Structural Steel NIC 05B Miscellaneous Steel NIC DIVISION 6 - WOODS & PLASTICS -$ 06A - Rough Carpentry NIC 06B - Architectural Woodwork NIC DIVISION 7 - THERMAL & MOISTURE PROTECTION -$ 07A Dampproofing / Waterproofing NIC 07C Building Insulation NIC 07E Roofing / Sheet Metal NIC 07G Fireproofing NIC 07i Joint Sealants NIC 07J Expansion Control NIC DIVISION 8 - DOORS AND WINDOWS -$ 08A Door/Frame/Hardware Install NIC 08B Door/Frame/Hardware Supply NIC 08D Overhead Coiling Doors NIC 08E Aluminum Storefront NIC DIVISION 9 - FINISHES -$ 09A Plaster / Stucco NIC 09B Gypsum Board Systems NIC 09D Acoustical Ceilings / Wall Panels NIC 09G Resilient Flooring / Carpet NIC 09I Misc. Finishes NIC 09J Painting NIC DIVISION 10 - SPECIALTIES -$ 10B Signage NIC 10C Toilet Compartments / Accessories NIC 10D Cubicle Curtain NIC 10G Wall and Corner Protection NIC 10H Fire Protection Specialties NIC 10I Lockers NIC 10M Fireplaces NIC 10N Time Capsule NIC DIVISION 11 - EQUIPMENT -$ 11C Appliances NIC DIVISION 12 - FURNISHINGS -$ 12B Window Treatments NIC DIVISION 14 - CONVEYING SYSTEMS -$ 14A Elevators NIC 14E Pneumatic Tube System NIC DIVISION 21 - FIRE PROTECTION SYSTEMS -$ 21A Fire Protection Systems NIC DIVISION 23 - MECHANICAL SYSTEMS -$ 23A Mechanical / Plumbing Systems NIC DIVISION 26 - ELECTRICAL SYSTEMS -$ 26A Electrical Systems NIC 27A Teledata/ Low voltage NIC 27C Paging, Sound Masking & Access Control NIC DIVISION 31 - EARTHWORK -$ 31A Earthwork NIC 31B Erosion Control NIC 31C Shoring Stabilization NIC DIVISION 32 - SITE IMPROVEMENTS 93,750.00$ 32A Asphalt Paving / Markings / Signal Work / Signs 93,750.00$ 32B Temp Striping NIC 32C Site Pavers NIC 32E Site Furnishings NIC 32F Fences and Gates NIC 32H Landscaping NIC DIVISION 33 - SITE UTILITIES -$ 33A Site Utilities NIC MISC. ADJUSTMENTS -$ -$ 121,370.00$ CONTINGENCIES Bidding Contingency 0.00% -$ Construction Contingency 0.00% -$ Escalation 0.00% NIC CONTINGENCIES COST TOTAL -$ Lump Sum General Conditions Approximate Proration -$ 121,370.00$ INDIRECT COSTS: Design And Professional Services By COA Plan Review Fee By COA Building Permit Fee By COA Excise Tax By COA Tap And Development Fees By COA INDIRECT COST TOTAL -$ 121,370.00$ INSURANCE COSTS: Liability Insurances 2.00% 2,427.40$ Subguard 1.50% 1,820.55$ Builder's Risk Insurance 1.00% 1,213.70$ INSURANCE COST TOTAL 5,461.65$ CONSTRUCTION FEES: CM/GC Pre-Construction Fee 0.00% -$ CM/GC Construction Fee 10.00% 12,137.00$ CONSTRUCTION FEES COST TOTAL 12,137.00$ BOND COSTS: ROW Maintenance Bond 2.50% 3,034.25$ Performance & Payment Bond 1.55% 1,881.24$ BOND COST TOTAL 4,915.49$ -$ -$ -$ -$ -$ $143,884 -$ -$ -$ -$ -$ New Construction PROJECT TOTALS >>> TRADE DESCRIPTION DIRECT COST W/ CONTINGENCY & GC SUBTOTAL >>> DIRECT COST TOTAL >>> DIRECT & INDIRECT COST TOTAL >>> City of Aspen - Mill Street Complete Street 9/26/16 Drawings by JR Engineering P53 VI.c Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Brian Long, Trails Field Supervisor THRU: Austin Weiss, Parks and Open Space Director Ben Carlsen, Open Space and Natural Resources Manager DATE OF MEMO: September 18, 2017 MEETING DATE: September 25, 2017 RE: Resolution #131, Series of 2017 - Marolt Trail Asphalt Overlay REQUEST OF COUNCIL: The Parks Department is requesting approval of a contract with Elam Construction for $77,364.00 for asphalt milling and overlay. PREVIOUS COUNCIL ACTION: In November of 2016, the 2017 Parks Department Budget was approved which included $75,000 for general trail surface improvements. In addition $20,359.00 was carried forward from 2016 for a total Trail Surface Improvement budget of $95,359.00. DISCUSSION: The City of Aspen Parks Department maintains over 20 miles of pedestrian and bike trails throughout the City. The Marolt Trail near the Mining and Ranching Museum is cracked and worn out and was targeted as in need of resurfacing in 2017. FINANCIAL/BUDGET IMPACTS: The Parks Department sought vendors for trail asphalt overlay work on the Marolt/Thomas property in 2017. The contract was awarded to Elam Construction through a competitive Invitation to Bid process, following the City of Aspen Purchasing procedures. The action proposed is to approve the contract with Elam Construction for $77,364.00. The Parks Department 2017 budget has $95,359.00 remaining in a fund dedicated to Trail Surface Improvements. ENVIRONMENTAL IMPACTS: Keeping the pedestrian trails in good shape encourages alternative transportation and thus contributes to a reduction of air and noise pollution. RECOMMENDED ACTION: Parks Staff recommends approval of the asphalt milling and overlay contract with Elam Construction. P54 VI.d Page 2 of 2 ALTERNATIVES: Council could decide not to approve the contract in which case the trail would remain in the current condition. The main concerns regarding non-approval of this work is the potential safety hazards that could appear on areas of the trail that are deteriorating and an accelerated rate of deterioration. PROPOSED MOTION: “I move to approve Resolution #131” CITY MANAGER COMMENTS: ATTACHMENTS: A – Contract with Elam Construction B – Resolution C – Map of Marolt Trail Overlay area P55 VI.d RESOLUTION #131 (Series of 2017) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND ELAM CONSTRUCTION AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for the milling and overlay of asphalt on the Marolt Trail, between the City of Aspen and Elam Construction, 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 the milling and overlay of asphalt on the Marolt Trail, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said contract on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of September, 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, September 25th, 2017. Linda Manning, City Clerk P56 VI.d P57 VI.d P58 VI.d P59 VI.d P60 VI.d P61 VI.d P62 VI.d P63 VI.d P64 VI.d P65 VI.d P66 VI.d P67 VI.d P68 VI.d P69 VI.d P70 VI.d P71 VI.d P72 VI.d P73 VI.d P74 VI.d P75 VI.d P76 VI.d P77 VI.d P78 VI.d P79 VI.d P80 VI.d P81 VI.d P82 VI.d P83 VI.d P84 VI.d P85 VI.d P86 VI.d P87 VI.d P88 VI.d P89 VI.d P90 VI.d Marolt Trail Overlay 2017 Untitled layer Marolt Trail Overlay 2017 Marolt Trail Overlay 2017 P91 VI.d 1 MEMORANDUM TO: Mayor and City Council FROM: Austin Weiss, Parks and Open Space Director THRU: Sara Ott, Assistant City Manager THRU: Jim True, City Attorney DATE OF MEMO: September 18, 2017 MEETING DATE: September 25, 2017 RE: Resolution #129 and #130 Series of 2017 - Cozy Point Ranch Lease Extension with Cozy Point Ranch, LLC and AspenTREE CC: Steve Barwick, City Manager REQUEST OF COUNCIL: Staff is seeking approval of 3 month Lease Agreement extensions with Cozy Point Ranch, LLC and AspenTREE. The extension of these two leases will insure the continued operations at Cozy Point Ranch while staff completes negotiations and finalizes long term leases with both tenants. BACKGROUND: In the fall of 2014, Patti Watson took over ownership of Cozy Point Ranch, LLC, which had previously managed the operations of Cozy Point Ranch for the last 14 years under the ownership of Monroe Summers. At that time, staff restructured the lease to allow Patti to focus her efforts on the management of the equestrian operations and to allow City staff oversight of the day to day operations of the ranch itself. In 2011, Monroe Summers invited AspenTREE to base its “Farm Park” operations on Cozy Point Ranch and allowed Eden Vardy, AspenTREE’s Executive Director, to use a .5 acre portion of the ranch on which to run his operation. This agreement was made between Cozy Point P92 VI.e 2 Ranch, LLC and AspenTREE, and as a result Patti Watson assumed responsibility for that agreement when she took over the ranch operations lease in 2015. However, since the City took over the management of the day to day operations of the greater ranch property, the AspenTREE lease is now held with the City of Aspen. In 2015, Parks staff began a 2 year effort to develop a comprehensive management plan for Cozy Point Ranch. Through this period of management plan development, the City of Aspen entered into lease agreements on a 1 year basis with both Cozy Point Ranch, LLC and AspenTREE in order to continue to provide their services to the community. The Cozy Point Ranch Management Plan was finalized and approved by City Council in March of 2017. In May of 2017, City staff advertised a Request for Proposals in order to secure operators for both the equestrian operation, and a sustainable agriculture/education operation. After a thorough review process, the Cozy Point Ranch RFP Selection Committee made a recommendation to award both Cozy Point Ranch, LLC and AspenTREE with long term leases for the Ranch operations. DISCUSSION: Cozy Point Ranch is home to the only public equestrian facility in the Roaring Fork Valley. Cozy Point Ranch, LLC has managed this equestrian operation for over 15 years and has a proven track record of providing excellent service as well as gaining community support. When ownership of Cozy Point Ranch, LLC changed hands from Monroe Summers to Patti Watson, staff felt that continuing to work with Patti Watson as the lease holder was in the best interest of the ranch and that this decision would continue providing excellent service to the public which is something the public was used to. In 2015, after Patti Watson took over the lease, she not only continued to provide the past services of the ranch but more importantly, she elevated and grew these services to an even higher level than has been seen before at the ranch. For instance, in 2015, Patti achieved the highest horse boarder rate than the ranch has ever seen before and she currently has 20 boarders more than she had last year at this same time. Patty also continues to provide excellent services to the youth of the valley by providing ever growing equestrian programming and horse camps for kids of all ages that are often filled to capacity. Most impressively, Patti has also grown the high school equestrian team into one of the largest high school equestrian teams in the region. Overall, the equestrian facility has seen roughly 26,000 user days in 2016. Additionally, Patti has continued to work closely with City’s onsite ranch manager for Cozy Point, to identify improvements needed at the equestrian facilities. As a result of these efforts, City Staff has implemented several new pasture management practices as well as making significant improvements to riding facilities and employee housing. The AspenTREE program is also operated on the Cozy Point Ranch property, and provides educational opportunities, sustainable agriculture resources, and food production program on site. AspenTREE continues to offer year round programs for the community in sustainable agricultural education and they regularly include the local school districts in their programming. They also offer an affordable summer camp program as a child care alternative for both working P93 VI.e 3 families and visitors to the valley which teaching hands-on skills in farm stewardship, environmental citizenship, and environmental leadership. AspenTREE runs their operation on the concept of a "Farm Park" and they keep it open to the public at any time similar to a town park. AspenTREE, estimates that they have nearly doubled their program enrollment since they began their operations at Cozy Point in 2001 and in the summer of 2016 they estimate that they had roughly 9,000 user days at their facility. AspenTREE has also increased participation at their annual Community Meal that they host each fall and they served over 1,200 people at this year’s event. AspenTREE also grows produce, and provides organic eggs and poultry for sale to CSA and cooperative members, as well selling these items as at the Aspen Saturday Market. Parks staff have been negotiating with both Cozy Point Ranch, LLC and AspenTREE to finalize the language of each long term lease and hopes to have that completed over the next several weeks. Those leases will then be taken to the City of Aspen Open Space and Trails Board for their review and then staff will be coming back to City Council for their approval at the next earliest opportunity. FINANCIAL IMPLICATIONS: If City Council approves the Extended Lease Agreements with Cozy Point Ranch, LLC, and Aspen TREE, funds will be collected during the last 3 months of 2017 based on the fact that Cozy Point Ranch, LLC will be paying one half of their net profits to the City of Aspen. RECOMMENDED ACTION: Staff recommends approval of the proposed Extended Lease Agreements with both Cozy Point Ranch, LLC and AspenTREE. ALTERNATIVES: City Council could choose not to approve the recommended Extended Lease Agreements with Cozy Point Ranch, LLC and AspenTREE, however, this action could result in reduced services and/or a deterioration in operations at Cozy Point Ranch. PROPOSED MOTIONS: I move to approve Resolution #129, Series 2017, approving the Amended Lease Agreement between the City of Aspen and Cozy Point Ranch, LLC for operational management of Cozy Point Ranch equestrian facility. I move to approve Resolution #130, Series 2017, approving the Lease Agreement between the City of Aspen and AspenTREE for the operation of its permaculture and educational facility. ATTACHMENTS: Exhibit A – Amended Lease Agreement with Cozy Point Ranch, LLC and Resolution of Approval Exhibit B – Amended Lease Agreement with AspenTREE and Resolution of Approval P94 VI.e RESOLUTION # 129 (Series of 2017) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN AMENDMENT TO THE LONG-TERM STEWARDSHIP LEASE AGREEMENT FOR THE COZY POINT RANCH AND EQUESTRIAN CENTER BETWEEN THE CITY OF ASPEN AND COZY POINT RANCH LLC AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AMENDMENT TO LEASE ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a proposed Amendment to the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and Equestrian Center between the City of Aspen and Cozy Point Ranch LLC, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the Amendment to the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and Equestrian Center between the City of Aspen and Cozy Point Ranch LLC, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 25th day of September 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, September 25, 2017. Linda Manning, City Clerk P95 VI.e RESOLUTION # 130 (Series of 2017) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF ASPEN AND ASPEN TREE FOR ITS FARM PARK EDUCATION AND PERMACULTURE FACILITY AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AMENDMENT TO LEASE ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a proposed Lease Agreement between the City of Aspen and Aspen TREE, for its Farm Park education and permaculture facility, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the Lease Agreement between the City of Aspen and Aspen TREE, 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 25th day of September 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, September 25, 2017. Linda Manning, City Clerk P96 VI.e AMENDMENT AND EXTENSION TO LONG-TERM STEWARDSHIP LEASE AGREEMENT FOR THE COZY POINT RANCH EQUESTRIAN CENTER THIS AMENDMENT AND EXTENSION TO LONG TERM STEWARDSHIP AND LEASE AGREEMENT entered into at Aspen, Colorado, this ____ day of _______________, 2017, by and between the CITY OF ASPEN, COLORADO, a municipal corporation and home- rule city (“City”), and COZY POINT RANCH, LLC, a Colorado limited liability company (“Tenant”) amends and extends the amended Long-Term Stewardship Lease Agreement for the Cozy Point Ranch and Equestrian Center as follows: W I T N E S S E T H: WHEREAS, the City is the owner of the Cozy Point Ranch and Equestrian Center in Pitkin County, Colorado, which property is described on the map attached hereto as Exhibit A (the “Ranch”), consisting of approximately 32 acres; and WHEREAS, on or about April 15, 2010, the City and Tenant entered into the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch Equestrian Center (hereinafter the “Lease”); and WHEREAS, at the time of the entry of the lease Tenant was a Colorado Limited Liability Company consisting of two members, Monroe Summers and Glenda Summers; and WHEREAS, following the unexpected and untimely death of Monroe Summers on April 26, 2104, Cozy Point Ranch, LLC was acquired in full by Patricia K. Watson, a former employee of the Tenant; and WHEREAS, Patti Watson has experience in equestrian center management and desires to continue the operation of that part of the prior tenancy and terminate and release the LLC from obligations to City for certain provisions of the previous Long-Term Stewardship Lease Agreement for the Cozy Point Ranch Equestrian Center; and WHEREAS, on or about December 12, 2016, the City and Tenant entered into an Amendment to the Long-Term Stewardship Lease Agreement for the Cozy Point Ranch Equestrian Center, which amended and extended the agreement to September 30, 2017; and, WHEREAS, the City and Tenant are desirous of amending and extending the Amended Long-Term Stewardship Lease Agreement for the Cozy Point Ranch Equestrian Center on the terms and conditions set forth herein. P97 VI.e 2 NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions contained herein, the parties agree as follows: 1. Term. The term of the Lease is hereby extended to December 31, 2017. The parties may extend the term set forth herein for such time and on such terms as the parties may agree at any time prior to the end of the Lease. Except as amended herein, all terms and conditions of the Amended Long-Term Stewardship Lease Agreement for the Cozy Point Ranch Equestrian Center shall remain in full force and effect. 2. The premises to which this lease pertains are hereby amended to include that portion of the Ranch specifically described in Exhibit A. The remainder of the Ranch shall be managed or leased by the City. 3. Tenant shall provide and allow access to and parking for the parcel reserved by the City and depicted on Exhibit A for Aspen T.R.E.E., as has been traditionally provided. If the Tenant and City disagree as to the area of access or parking, the City shall designate such area, at its sole discretion, on an amended Exhibit A. In addition, Tenant shall provide access to a bathroom facility designated by the City for use by Aspen T.R.E.E. and its guests during summer camps when the building is open for public use (8:00am to 5:00pm June, July and August). Aspen T.R.E.E. or the City shall pay Tenant $150 per month for the maintenance and upkeep of the bathroom facility related to Aspen T.R.E.E’s use of the facility. 4. Paragraph 7. c., of the Amended Long-Term Stewardship Lease Agreement for the Cozy Point Ranch Equestrian Center is hereby deleted in its entirety. WHEREFORE, the parties, through their duly authorized representatives, have executed this Agreement upon the dates as set forth herein. LESSOR: THE CITY OF ASPEN, COLORADO By: __________________________ Name: Stephen Barwick Title: City Manager ATTEST: ___________________________ Linda Manning, City Clerk LESSEE (Tenant): COZY POINT RANCH, LLC By: ______________________ Name: Patricia K. Watson Title: Manager P98 VI.e LEASE AGREEMENT EXTENSION BETWEEN ASPEN T.R.E.E. AND THE CITY OF ASPEN THIS LEASE AGREEMENT entered into at Aspen, Colorado, this ____ day of _______________, 2017, by and between the CITY OF ASPEN, COLORADO, a municipal corporation and home-rule city (“City”), and ASPEN T.R.E.E., a Colorado Non Profit corporation, concerns and specifies the following: W I T N E S S E T H: WHEREAS, the City is the owner of the Cozy Point Ranch and Equestrian Center in Pitkin County, Colorado, which property is described on the map attached hereto as Exhibit A (the “Ranch”), consisting of approximately 93.5 acres; and, WHEREAS, ASPEN T.R.E.E., also doing business as Earth Keepers, is) a 501 (c)((3) nonprofit (hereafter referred to as “Aspen T.R.E.E. ”), whose mission on site is to engage the greater community about environmentalism and sustainable land stewardship and agriculture, empower youth to be stewards of their community and nature while providing an affordable child care program, grow produce, eggs, and vegetables for the community, bring young farmers together to share best practices and provide operational support, and demonstrate high altitude sustainable farming strategies that are financially sustainable, productive, and replicable; and, WHEREAS, the City and Aspen T.R.E.E. are desirous of leasing a portion of the Cozy Point Ranch on the terms and conditions set forth herein; and WHEREAS, the City and Aspen T.R.E.E. entered into a lease agreement on January 1, 2017 (hereinafter the “Lease”). NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions contained herein, the parties agree as follows: DESCRIPTION OF PREMISES. The City hereby leases to Aspen T.R.E.E. that portion of the Cozy Point Ranch and Equestrian Center set forth in Exhibit A, attached hereto. The City shall provide access to the premises as designated on Exhibit A, including, use of the “Farm Park” plot (area delineated on attached map), its buildings, fencing, infrastructure and gardens within the existing area currently utilized by Aspen T.R.E.E. . TERM The term of this lease extension shall be for a period of three (3) months commencing on October 1, 2017 and ending on December 31, 2017. The parties may extend the Lease for such time and on such terms as the parties may agree at any time prior to the end of the Lease. RENT Rent for the “Farm Park” for the Calendar year 2017 will be $1.00. Use of the bathroom facilities operated by Cozy Point Ranch, LLC for the lease period shall be an additional $150.00 per month which shall be paid to Cozy Point, LLC by the City of Aspen. P99 VI.e CONDITIONS The conditions for both parties regarding the use of the property are hereby defined and agreed to as follows. The City will provide the following: 1. Use of the “Farm Park” plot (area delineated on attached map), its buildings, fencing, infrastructure, gardens and within the existing area currently utilized by Aspen T.R.E.E. 2. Utilities necessary to operate the “sustainable farmyard” including electricity and water. 3. Aspen T.R.E.E. shall be allowed to park vehicles on the site that are necessary for Aspen T.R.E.E. ’s regular farm and program operations as agreed upon between Aspen T.R.E.E. and the City’s site manager. Aspen T.R.E.E. will provide the following: 1. A supervisor whose on-site responsibilities are: daily supervision of the children entrusted to their care during the yearly agreed to times allotted including sign-in and registration with parents; scheduling daily activities; developing the daily learning plan; dispensing and enforcing the “sustainable farmyard rules”; supervising additional staff or volunteer help; and communicating and cooperating with ranch management about issues germane to a safe, successful, educational and enjoyable camper experience. 2. On and off-site management of the Aspen T.R.E.E. Programs includes monthly bookkeeping and yearly accounting records, donor/client billing and collections, advertising and marketing, accounts payable and good credit relations, payroll expenses and taxes, employee records and benefits, Tax return preparation, insurance for general liability and workman’s compensation 3. Aspen T.R.E.E. will provide its own tools and equipment necessary to maintain and operate the gardens, and the poultry house. If extra tools or labor is required, it will be charged by Cozy Point Ranch at the attached rates (see attachment). 4. Aspen T.R.E.E. will provide daily cleaning and maintenance of all mutually agreed upon areas under its responsibility including trash collection and disposal, manure collection and composting, tool storage and tidying up of all areas of the “sustainable farmyard”. ADDITIONAL STIPULATIONS 1. Aspen T.R.E.E. will identify the City of Aspen as additionally named insured on its general liability and workman’s compensation policies and will furnish copies of the policies or riders to the City. 2. Rules of the “Farm Park” will be conspicuously posted by Aspen T.R.E.E. so that all parents and children will be aware of and will abide by them. 3. Aspen T.R.E.E. will notify The City of any events 30 days in advance or volunteer or community service work days at least 7 days in advance in writing (robert.covington@cityofaspen.com). 4. Any and all new improvements, fencing, or changes to existing infrastructure (with the exception of gardens) must be reviewed and approved in advance in writing by the City of Aspen. 5. City reserves the right to undertake any mutually agreed upon changes or improvements within the sustainable farmyard area with its own personnel, equipment and supplies and be reimbursed for same in a timely manner. Any requests for Cozy Point, LLC equipment, supplies, tractor time, and labor will be handled separately by agreement between Cozy Point, LLC and Aspen T.R.E.E. 6. Any improvements made by Aspen T.R.E.E. may be removed at Aspen T.R.E.E’s expense as long as it is done in a timely manner if the lease is terminated at any time. 7. Aspen T.R.E.E. shall not be obligated to board animals with Cozy Point Ranch, LLC or its successor, but may do so if arrangements satisfactory to Aspen T.R.E.E. are agreed upon with Cozy Point Ranch, LLC. 8. Proper animal husbandry practices are required for all livestock and poultry and proof of current vaccinations for goats and alpacas. Premises and livestock to be examined three times a year or as needed if deemed so by the City by a certified veterinarian approved by the City. If conditions are not met, all livestock shall be removed upon request by the City of Aspen. P100 VI.e 9. City shall be entitled to enter upon the Premises at all reasonable hours for the purpose of inspecting the same, preventing waste or loss, or enforcing any of City’s rights hereunder. Aspen T.R.E.E. shall insure that the facilities and the property covered under this lease agreement are open and safe for the enjoyment of the public. Employees, volunteers and visitors to Aspen T.R.E.E. shall be allowed access at all hours to the farmyard facility, including reasonable access with motor vehicles (except as expressed in section 11 of extra stipulations. In addition, Aspen T.R.E.E. employees, approved volunteers, and visitors shall be allowed access to the public restroom facilities at Cozy Point Ranch (building A on map) during summer camps when the building is open for public use (8:00am to 5:00 pm June, July and August). Use of the Cozy Point Ranch, LLC operated restroom facilities by Aspen T.R.E.E. programs shall cost Aspen T.R.E.E. an additional $150.00 per month as previously outlined in the Rent portion of this agreement. The City may also elect to provide use of a temporary porta potty on the Aspen T.R.E.E. leased space for all other times. 10. Aspen T.R.E.E. will respect the behavior of horses as unpredictable by containing the animals of the farmyard to the farmyard with the exception of walking the alpacas to the river or alpaca trailer, but never near the horses mounted or un-mounted, or the arenas when in use by horses. Horses will spook at the alpacas and other animals and could cause serious injury to themselves or the people around them. 11. For the safety of the horses and boarders, Aspen T.R.E.E. will be escorted through the mare pasture (at no extra charge) with a minimum of one-hour notice as needed for truck access by staff of the Ranch. Ranch staff is on site 24 hours a day and arrangements can be made by calling Patti’s cell phone. 12. Aspen T.R.E.E. shall have the right to purchase hay for its animals from Cozy Point Ranch, LLC on terms mutually agreeable to the parties. Alternatively, Aspen T.R.E.E. shall also have the right to purchase hay from third parties, should Aspen T.R.E.E. deem that such other hay providers would be in the best interests of Aspen T.R.E.E. ’s animals. All hay, feed and bedding products to be stored on Aspen T.R.E.E. ’s leased area unless other arrangements are made. 13. Aspen T.R.E.E. is encouraged to plan and provide for community events that attract a wide demographic to Cozy Point Ranch. 14. The City of Aspen and Aspen T.R.E.E. shall work together as part of the planning process to design a specific signage plan that clearly and specifically identifies that the leased property is owned by the City of Aspen and that the members of the community are welcome to observe Aspen T.R.E.E. ’s operations and participate in Aspen T.R.E.E. ’s programs. The signage plan shall be designed to provide information to the public about general directions, hours of operations, emergency contact information, recreational opportunities, and other specific information about Aspen T.R.E.E. and its operations and programs as appropriate. 15. Aspen T.R.E.E. will insure that its Board of Directors, employees, volunteers and donors are fully apprised of its relationship with the City and the terms and intent of this agreement. 16. Aspen T.R.E.E. agrees to indemnify and hold the City of Aspen harmless from liability for claims for damages arising directly or indirectly out of, or in connection with, any of its programs or activities, and from liability from injuries suffered by any employee or other person in connection therewith. This indemnification and hold harmless provision shall extend to and include all attorney's fees and costs incurred by the ranch or the City of Aspen in connection with such actions or claims. Aspen T.R.E.E. agrees to defend any suits that are brought against the Ranch or the City of Aspen in connection with the “sustainable farmyard” or this agreement. WHEREFORE, the parties, through their duly authorized representatives, have executed this Agreement upon the dates as set forth herein. LESSOR: THE CITY OF ASPEN, COLORADO By: __________________________ Name: Stephen Barwick Title: City Manager ATTEST: ___________________________ Linda Manning, City Clerk P101 VI.e LESSEE (Tenant): ASPEN T.R.E.E. by: _______________________________ Eden Vardy P102 VI.e Pitkin County Cozy Point Ran ch, LLCLease Area Exhibit ALease Area Aspen TREE Lease Area .1 i nch = 375 feet Cozy Point Ranch Parcel Boundary Cozy Point Ranch, LLC Lease Area P103 VI.e MEMORANDUM TO: Mayor and City Council FROM: Don Taylor, Finance Director THRU: Steve Barwick, City Manager MEETING DATE: September 25, 2017 RE: Resolutions #124 and 125, Series of 2017 - Bond Counsel and Underwriter Services REQUEST OF COUNCIL: Staff is requesting Council approval to engage Stifel, Nicolaus & Company to serve as underwriter, and Butler Snow to serve as bond counsel, for the issuance of new debt associated with construction of a new administrative office building and for the land purchase tied to future municipal water storage. PREVIOUS COUNCIL ACTION: At August 15th and 21st Council work sessions, Staff received direction to proceed with financing options for both a new administrative office building (Certificates of Participation) and land associated with future water storage solutions (water utility revenue-supported general obligation bonds). BACKGROUND: For the recent Aspen Police Department debt issuance, the City engaged both Stifel, Nicolaus and Co. and Butler Snow to assist in the preparation of documents and for the placement of the actual debt issuances into the market. Over roughly the last decade, both firms have supported the City in other similar financial matters, and in all cases, have provided reliable teams that possess a solid understanding of Aspen’s home rule charter provisions, Colorado TABOR regulations, and extensive experience in public sector debt issuances. Because of the expertise and level of service these two firms have brought forth in previous transactions, the City is requesting to continue utilizing these firms as sole sourced contractors for these two new financing deals. DISCUSSION: Underwriter services include working with the City, the City’s bond counsel and City’s financial advisor (PFM) in evaluating terms and conditions that would affect the pricing and sale of the Certificates of Participation and general obligation bonds. This includes preparation and/or review of all documents necessary to implement the actual issuances. The underwriter will also perform the actual marketing of the securities. This includes supporting presentations to rating agencies, providing market information around and on the actual date of sale for the certificates / bonds, soliciting actual investors, and potentially purchasing any certificates or bonds that were not sold. Underwriter expenses are covered by the proceeds from the issuance; therefore, the underwriter is not compensated unless the transaction occurs. Bond counsel services include assistance with (for certificates of participation) lease and site lease documents, indenture agreement, reimbursement resolution and release ordinance, evaluation of title, preliminary and final official statements, (for general obligation bonds) ballot language, and more. Bond counsel will work with both the underwriter and the City’s financial advisor (PFM) to package each new issuance. P104 VI.f RECOMMENDED ACTION: Staff proposes that Council approve the use of Stifel, Nicolaus and Company (as underwriter) and Butler Snow (as bond counsel) for the pending issuances of (1) Certificates of Participation related to a new administrative office building and for (2) general obligation bonds related to the land acquisition associated with future municipal water storage. PROPOSED MOTION: “I move to adopt Resolutions #124 and #125, Series of 2017, approving the City to utilize Stifel, Nicolaus and Company for underwriting services, and Bulter Snow for bond counsel, related to the financing associated with a new administrative office building and land acquisition for future municipal water storage.” CITY MANAGER COMMENTS: P105 VI.f RESOLUTION #124 (Series of 2017) A RESOLUTION OF THE ASPEN CITY COUNCIL, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND BUTLER SNOW, LLP, AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, the City is proposing to issue new debt for the financing of two large capital projects including a new administrative office building and the purchase of land associated with future municipal water supplies; and WHEREAS, the City requires a level of legal oversight to the preparation of financial documents associated with the issuance of such issuances of debt, and WHEREAS, the firm of Butler Snow, LLC provides comprehensive and diverse legal expertise in public finance and has one of the largest and most successful practices in the country, and WHEREAS, the proposed issuances of debt are similar to the recent financing for the Aspen Police Department in which Butler Snow, LLC supported the City and therefore has intimate knowledge of the City’s financial policies, home rule charter and of Colorado TABOR regulations in general; 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 bond counsel services (attached hereto), between the City of Aspen and Butler Snow, LLC 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 25th day of September, 2017. ___________________________________ Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do hereby certify that the foregoing is a true and accurate copy of the resolution adopted by the City Council of the City of Aspen, Colorado, at the meeting held September 25, 2017. ___________________________________ Linda Manning, City Clerk P106 VI.f 1801 California Street Suite 5100 Denver, Colorado 80202 DEE P. WISOR (720) 330-2357 Dee.Wisor@ButlerSnow.com T (720) 330-2300 F (720) 330-2301 www.butlersnow.com BUTLER SNOW LLP September 5, 2017 VIA E-MAIL City of Aspen 130 S. Galena Aspen, CO 81611 Attn: Don Taylor, Finance Director Re:Bond and Disclosure Counsel Services – City of Aspen Lease Purchase Agreement Financing for Administration Building Dear Don: We are pleased to confirm our engagement as counsel to City of Aspen (the “City”). We appreciate your confidence in us and will do our best to continue to merit it. In establishing our attorney-client relationship, current practice standards dictate that we set forth in writing (and in some detail) the elements of our mutual understanding. While some of the matters covered in this engagement letter will never be relevant or of concern between us, we hope you will understand that as attorneys and counselors it is our natural function to try to make communication clear and complete, and to anticipate and resolve questions before they arise. We also believe that the performance of our services may require your effort and cooperation. Consequently, the better we each understand our respective roles, responsibilities and contributions, the more efficient, effective and economical our work for you can be. Personnel This letter sets forth the role we propose to serve and the responsibilities we propose to assume as bond and disclosure counsel to the City in connection with the a lease purchase agreement financing in the approximate principal amount of $18,000,000, including the issuance of related certificates of participation (collectively, the “Obligations”). Dee Wisor will be principally responsible for the work performed by Butler Snow LLP on your behalf. Where appropriate, certain tasks may be performed by other attorneys or paralegals. At all times, however, Dee Wisor will coordinate, review, and approve all work completed for the City. Scope of Employment Bond Counsel is engaged as a recognized expert whose primary responsibility is to render an objective legal opinion with respect to the authorization of securities like the P107 VI.f City of Aspen, Colorado September 5, 2017 Page 2 Obligations. As your bond counsel, we will: examine applicable law; consult with the parties to the transaction prior to the execution of the Obligations; prepare customary authorizing and operative documents, and closing certificates; review a certified transcript of proceedings; and undertake such additional duties as we deem necessary to render the opinion. Subject to the completion of proceedings to our satisfaction, we will render our opinion relating to the validity of the Obligations, the enforceability of the security for the Obligations, and the exclusion of the interest on the Obligations (subject to certain limitations which may be expressed in the opinion) from gross income for federal income tax purposes and for Colorado income tax purposes. We are also being retained by you to act as special counsel to the City in connection with the Official Statement for the Obligations (the “Official Statement”). As such, we will provide advice to the City on the applicable legal standards to be used in preparing the Official Statement and meeting the City’s disclosure responsibilities. At the conclusion of the transaction we will deliver a letter to you stating that we have assisted the City in the preparation of the Official Statement, and that in the course of such assistance, nothing has come to the attention of the attorneys in our firm rendering legal services in connection with our representation which leads us to believe that the Official Statement, as of its date (except for the financial statements, other statistical data and statements of trends and forecasts, and information concerning the bond insurer, if any, and information concerning The Depository Trust Company (“DTC”) provided by DTC contained in the Official Statement and its Appendices, as to which we express no view), contains any untrue statement of material fact or omits to state any material fact necessary to make the statements in the Official Statement, in light of the circumstances under which they were made, not misleading. In delivering our opinion and letter, we will rely upon the certified proceedings and other certifications of public officials and other persons furnished to us without undertaking to verify the same by independent investigation. Our opinion and letter will be addressed to the City and will be executed and delivered by us in written form on the date the Obligations are exchanged for their purchase price (the “Closing”). The opinion and letter will be based on facts and law existing as of their date. Our services are limited to those contracted for explicitly herein; the City’s execution of this letter constitutes an acknowledgment of those limitations. Specifically, but without implied limitation, our responsibilities do not include any representation by Butler Snow LLP in connection with any IRS audit, SEC enforcement action or any litigation involving the City or the Obligations, or any other matter. Neither do we assume responsibility for the preparation of any collateral documents (e.g., environmental impact statements) which are to be filed with any state, federal or other regulatory agency. Nor do P108 VI.f City of Aspen, Colorado September 5, 2017 Page 3 our services include financial advice (including financial advice about the structure of Obligations) or advice on the investment of funds related to the Obligations. Representation of the City In performing our services, the City will be our client and an attorney-client relationship will exist between us. We will represent the interests of the City rather than the City Council or its individual members. We will work closely with the City’s general counsel and will rely on the opinion of the general counsel with regard to specific matters, including pending litigation. We assume that other parties to the transaction will retain such counsel as they deem necessary and appropriate to represent their interests in this transaction. Conflicts of Interest Our firm sometimes represents, in other unrelated transactions, certain of the financial institutions that may be involved in this transaction, such as underwriters, credit enhancers, and banks. We do not believe that any of these representations will materially limit or adversely affect our ability to represent the City in connection with the Obligations, even though such representations may be characterized as adverse under the Colorado Rules of Professional Conduct (the “Rules”). In any event, during the term of our engagement hereunder, we will not accept a representation of any of these parties in any matter in which the City is an adverse party. However, pursuant to the Rules, we do ask that you consent to our representation of such parties in transactions that do not directly or indirectly involve the City. Your execution of this letter will signify the City’s prospective consent to such representations in matters unrelated to the City while we are serving as bond counsel hereunder. Fee Arrangement Based upon: (i) our current understanding of the terms, structure, size and schedule of the financing, (ii) the duties we will undertake pursuant to this letter, (iii) the time we anticipate devoting to the financing, and (iv) the responsibilities we assume, we estimate that our fee for this engagement will be $65,000. Such fee may vary: (i) if the principal amount of the Obligations actually issued increases significantly, (ii) if material changes in the structure of the financing occur, (iii) if unusual or unforeseen circumstances arise which require a significant increase in our time or our responsibilities or (iv) the Obligations are not delivered by January 31, 2018. If, at any time, we believe that circumstances require an adjustment of our original fee estimate, we will consult with you. P109 VI.f City of Aspen, Colorado September 5, 2017 Page 4 Our fees are usually paid at Closing out of proceeds of the Obligations. We customarily do not submit any statement until the Closing, unless there is a substantial delay in completing the financing. We understand and agree that our fees will be paid at Closing out of proceeds. Termination of Engagement The City may terminate our engagement, with or without cause, upon 5 days’ written notice to us. We may terminate this engagement, upon 45 days’ written notice to the City. Our fees for this engagement contemplate compensation for usual and customary services as bond and disclosure counsel as described above. Upon delivery of the opinion, our responsibilities as bond and disclosure counsel will terminate with respect to this financing, and our representation of the City and the attorney-client relationship created by this engagement letter will be concluded. Specifically, but without implied limitation, we do not undertake to provide continuing advice to the City or to any other party to the transaction. Many post-issuance events may affect the Obligations, the tax-exempt status of interest on the Obligations, or liabilities of the parties to the transaction. Such subsequent events might include a change in the project to be financed with proceeds, a failure by one of the parties to comply with its contractual obligations (e.g., rebate requirements, continuing disclosure requirements), an IRS audit, an SEC enforcement action, or a change in federal or state law. Should the City seek the advice of bond counsel on a post-closing matter or seek other, additional legal services, we would be happy to discuss the nature and extent of our separate engagement at that time. Document Retention At or within a reasonable period after Closing, we will review the file to determine what materials should be retained as a record of our representation and those that are no longer needed. We will provide you with a copy of the customary transcript of documents after Closing and will return any original documents obtained from you (if a copy is not included in the transcript). Our document retention policy is attached hereto. Approval If the other foregoing terms of this engagement are acceptable to you, please so indicate by returning a copy of this letter signed by the officer so authorized, keeping a copy for your files. We appreciate this opportunity to serve as your bond counsel and disclosure counsel and look forward to a mutually satisfactory and beneficial relationship. P110 VI.f City of Aspen, Colorado September 5, 2017 Page 5 BUTLER SNOW LLP By: ACCEPTED AND APPROVED: CITY OF ASPEN By: Title: Date: DPW/jw Enclosure P111 VI.f City of Aspen, Colorado September 5, 2017 Page 6 NOTICE TO CLIENTS OF BUTLER SNOW’S RECORD RETENTION & DESTRUCTION POLICY FOR CLIENT FILES Butler Snow maintains its client files electronically. Ordinarily, we do not keep separate paper files. We will scan documents you or others send to us related to your matter to our electronic file for that matter and will ordinarily retain only the electronic version while your matter is pending. Unless you instruct us otherwise, once such documents have been scanned to our electronic file, we will destroy all paper documents provided to us. If you send us original documents that need to be maintained as originals while the matter is pending, we ordinarily will scan those to our client file and return the originals to you for safekeeping. Alternatively, you may request that we maintain such originals while the matter is pending. If we agree to do that, we will make appropriate arrangements to maintain those original documents while the matter is pending. At all times, records and documents in our possession relating to your representation are subject to Butler Snow’s Record Retention and Destruction Policy for Client Files. Compliance with this policy is necessary to fulfill the firm’s legal and ethical duties and obligations, and to ensure that information and data relating to you and the legal services we provide are maintained in strict confidence at all times during and after the engagement. All client matter files are subject to these policies and procedures. At your request, at any time during the representation, you may access or receive copies of any records or documents in our possession relating to the legal services being provided to you, excluding certain firm business or accounting records. We reserve the right to retain originals or copies of any such records of documents as needed during the course of the representation. Unless you instruct us otherwise, once our work on this matter is completed, we will designate your file as a closed file on our system and will apply our document retention policy then in effect to the materials in your closed files. At that time, we ordinarily will return to you any original documents we have maintained in accordance with the preceding paragraph while the matter was pending. Otherwise, we will retain the closed file materials for our benefit and subject to our own policies and procedures concerning file retention and destruction. Accordingly, if you desire copies of any documents (including correspondence, e-mails, pleadings, contracts, agreements, etc.) related to this matter or generated while it was pending, you should request such copies at the time our work on this matter is completed. You will be notified and given the opportunity to identify and request copies of such items you would like to have sent to you or someone else designated by you. You will have 30 days from the date our notification is sent to you to advise us of any items you would like to P112 VI.f City of Aspen, Colorado September 5, 2017 Page 7 receive. You will be billed for the expense of assimilating, copying and transmitting such records. We reserve the right to retain copies of any such items as we deem appropriate or necessary for our use. Any non-public information, records or documents retained by Butler Snow and its employees will be kept confidential in accordance with applicable rules of professional responsibility. Any file records and documents or other items not requested within 30 days will become subject to the terms of Butler Snow’s Record Retention and Destruction Policy for Client Files and will be subject to final disposition by Butler Snow at its sole discretion. Pursuant to the terms of Butler Snow’s Record Retention and Destruction Policy for Client Files, all unnecessary or extraneous items, records or documents may be removed from the file and destroyed. The remainder of the file will be prepared for closing and placed in storage or archived. It will be retained for the period of time established by the policy for files related to this practice area, after which it will be completely destroyed. This includes all records and documents, regardless of format. While we will use our best efforts to maintain confidentiality and security over all file records and documents placed in storage or archived, to the extent allowed by applicable law, Butler Snow specifically disclaims any responsibility for claimed damages or liability arising from damage or destruction to such records and documents, whether caused by accident; natural disasters such as flood, fire, or wind damage; terrorist attacks; equipment failures; breaches of Butler Snow’s network security; or the negligence of third-party providers engaged by our P113 VI.f 1801 California Street Suite 5100 Denver, Colorado 80202 DEE P. WISOR (720) 330-2357 Dee.Wisor@ButlerSnow.com T (720) 330-2300 F (720) 330-2301 www.butlersnow.com BUTLER SNOW LLP September 5, 2017 VIA E-MAIL City of Aspen 130 S. Galena Aspen, CO 81611 Attn: Don Taylor, Finance Director Re:Bond and Disclosure Counsel Services – City of Aspen General Obligation Bonds for the Purchase of Certain Property for Use as Storage of Municipal Water Supplies . Dear Don: We are pleased to confirm our engagement as counsel to City of Aspen (the “City”). We appreciate your confidence in us and will do our best to continue to merit it. In establishing our attorney-client relationship, current practice standards dictate that we set forth in writing (and in some detail) the elements of our mutual understanding. While some of the matters covered in this engagement letter will never be relevant or of concern between us, we hope you will understand that as attorneys and counselors it is our natural function to try to make communication clear and complete, and to anticipate and resolve questions before they arise. We also believe that the performance of our services may require your effort and cooperation. Consequently, the better we each understand our respective roles, responsibilities and contributions, the more efficient, effective and economical our work for you can be. Personnel This letter sets forth the role we propose to serve and the responsibilities we propose to assume as bond and disclosure counsel to the City in connection with the issuance of general obligation bonds of the City in the approximate principal amount of $3,000,000 (the “Bonds”). Dee Wisor will be principally responsible for the work performed by Butler Snow LLP on your behalf. Where appropriate, certain tasks may be performed by other attorneys or paralegals. At all times, however, Dee Wisor will coordinate, review, and approve all work completed for the City. Scope of Employment Bond Counsel is engaged as a recognized expert whose primary responsibility is to render an objective legal opinion with respect to the authorization of securities like the P114 VI.f City of Aspen, Colorado September 5, 2017 Page 2 Bonds. As your bond counsel, we will: examine applicable law; consult with the parties to the transaction prior to the issuance of the Bonds; prepare customary authorizing and operative documents, including documents related to the election concerning the Bonds, and closing certificates; review a certified transcript of proceedings; and undertake such additional duties as we deem necessary to render the opinion. Subject to the completion of proceedings to our satisfaction, we will render our opinion relating to the validity of the Bonds, the enforceability of the security for the Bonds, and the exclusion of the interest on the Bonds (subject to certain limitations which may be expressed in the opinion) from gross income for federal income tax purposes and for Colorado income tax purposes. We are also being retained by you to act as special counsel to the City in connection with the Official Statement for the Bonds (the “Official Statement”). As such, we will provide advice to the City on the applicable legal standards to be used in preparing the Official Statement and meeting the City’s disclosure responsibilities. At the conclusion of the transaction we will deliver a letter to you stating that we have assisted the City in the preparation of the Official Statement, and that in the course of such assistance, nothing has come to the attention of the attorneys in our firm rendering legal services in connection with our representation which leads us to believe that the Official Statement, as of its date (except for the financial statements, other statistical data and statements of trends and forecasts, and information concerning the bond insurer, if any, and information concerning The Depository Trust Company (“DTC”) provided by DTC contained in the Official Statement and its Appendices, as to which we express no view), contains any untrue statement of material fact or omits to state any material fact necessary to make the statements in the Official Statement, in light of the circumstances under which they were made, not misleading. In delivering our opinion and letter, we will rely upon the certified proceedings and other certifications of public officials and other persons furnished to us without undertaking to verify the same by independent investigation. Our opinion and letter will be addressed to the City and will be executed and delivered by us in written form on the date the Bonds are exchanged for their purchase price (the “Closing”). The opinion and letter will be based on facts and law existing as of their date. Our services are limited to those contracted for explicitly herein; the City’s execution of this letter constitutes an acknowledgment of those limitations. Specifically, but without implied limitation, our responsibilities do not include any representation by Butler Snow LLP in connection with any IRS audit, SEC enforcement action or any litigation involving the City or the Bonds, or any other matter. Neither do we assume responsibility for the preparation of any collateral documents (e.g., environmental impact statements) which are to be filed with any state, federal or other regulatory agency. Nor do our services include P115 VI.f City of Aspen, Colorado September 5, 2017 Page 3 financial advice (including financial advice about the structure of Bonds) or advice on the investment of funds related to the Bonds. Representation of the City In performing our services, the City will be our client and an attorney-client relationship will exist between us. We will represent the interests of the City rather than the City Council or its individual members. We will work closely with the City’s general counsel and will rely on the opinion of the general counsel with regard to specific matters, including pending litigation. We assume that other parties to the transaction will retain such counsel as they deem necessary and appropriate to represent their interests in this transaction. Conflicts of Interest Our firm sometimes represents, in other unrelated transactions, certain of the financial institutions that may be involved in this transaction, such as underwriters, credit enhancers, and banks. We do not believe that any of these representations will materially limit or adversely affect our ability to represent the City in connection with the Bonds, even though such representations may be characterized as adverse under the Colorado Rules of Professional Conduct (the “Rules”). In any event, during the term of our engagement hereunder, we will not accept a representation of any of these parties in any matter in which the City is an adverse party. However, pursuant to the Rules, we do ask that you consent to our representation of such parties in transactions that do not directly or indirectly involve the City. Your execution of this letter will signify the City’s prospective consent to such representations in matters unrelated to the City while we are serving as bond counsel hereunder. Fee Arrangement Based upon: (i) our current understanding of the terms, structure, size and schedule of the financing, (ii) the duties we will undertake pursuant to this letter, (iii) the time we anticipate devoting to the financing, and (iv) the responsibilities we assume, we estimate that our fee for this engagement will be $35,000. Such fee may vary: (i) if the principal amount of the Bonds actually issued increases significantly, (ii) if material changes in the structure of the financing occur, (iii) if unusual or unforeseen circumstances arise which require a significant increase in our time or our responsibilities or (iv) the Bonds are not delivered by March 31, 2018. If, at any time, we believe that circumstances require an adjustment of our original fee estimate, we will consult with you. P116 VI.f City of Aspen, Colorado September 5, 2017 Page 4 Our fees are usually paid at Closing out of proceeds of the Bonds. We customarily do not submit any statement until the Closing, unless there is a substantial delay in completing the financing. We understand and agree that our fees will be paid at Closing out of proceeds. Termination of Engagement The City may terminate our engagement, with or without cause, upon 5 days’ written notice to us. We may terminate this engagement, upon 45 days’ written notice to the City. Our fees for this engagement contemplate compensation for usual and customary services as bond and disclosure counsel as described above. Upon delivery of the opinion, our responsibilities as bond and disclosure counsel will terminate with respect to this financing, and our representation of the City and the attorney-client relationship created by this engagement letter will be concluded. Specifically, but without implied limitation, we do not undertake to provide continuing advice to the City or to any other party to the transaction. Many post-issuance events may affect the Bonds, the tax-exempt status of interest on the Bonds, or liabilities of the parties to the transaction. Such subsequent events might include a change in the project to be financed with proceeds, a failure by one of the parties to comply with its contractual obligations (e.g., rebate requirements, continuing disclosure requirements), an IRS audit, an SEC enforcement action, or a change in federal or state law. Should the City seek the advice of bond counsel on a post-closing matter or seek other, additional legal services, we would be happy to discuss the nature and extent of our separate engagement at that time. Document Retention At or within a reasonable period after Closing, we will review the file to determine what materials should be retained as a record of our representation and those that are no longer needed. We will provide you with a copy of the customary transcript of documents after Closing and will return any original documents obtained from you (if a copy is not included in the transcript). Our document retention policy is attached hereto. Approval If the other foregoing terms of this engagement are acceptable to you, please so indicate by returning a copy of this letter signed by the officer so authorized, keeping a copy for your files. We appreciate this opportunity to serve as your bond counsel and disclosure counsel and look forward to a mutually satisfactory and beneficial relationship. P117 VI.f City of Aspen, Colorado September 5, 2017 Page 5 BUTLER SNOW LLP By: ACCEPTED AND APPROVED: CITY OF ASPEN By: Title: Date: DPW/jw Enclosure P118 VI.f City of Aspen, Colorado September 5, 2017 Page 6 NOTICE TO CLIENTS OF BUTLER SNOW’S RECORD RETENTION & DESTRUCTION POLICY FOR CLIENT FILES Butler Snow maintains its client files electronically. Ordinarily, we do not keep separate paper files. We will scan documents you or others send to us related to your matter to our electronic file for that matter and will ordinarily retain only the electronic version while your matter is pending. Unless you instruct us otherwise, once such documents have been scanned to our electronic file, we will destroy all paper documents provided to us. If you send us original documents that need to be maintained as originals while the matter is pending, we ordinarily will scan those to our client file and return the originals to you for safekeeping. Alternatively, you may request that we maintain such originals while the matter is pending. If we agree to do that, we will make appropriate arrangements to maintain those original documents while the matter is pending. At all times, records and documents in our possession relating to your representation are subject to Butler Snow’s Record Retention and Destruction Policy for Client Files. Compliance with this policy is necessary to fulfill the firm’s legal and ethical duties and obligations, and to ensure that information and data relating to you and the legal services we provide are maintained in strict confidence at all times during and after the engagement. All client matter files are subject to these policies and procedures. At your request, at any time during the representation, you may access or receive copies of any records or documents in our possession relating to the legal services being provided to you, excluding certain firm business or accounting records. We reserve the right to retain originals or copies of any such records of documents as needed during the course of the representation. Unless you instruct us otherwise, once our work on this matter is completed, we will designate your file as a closed file on our system and will apply our document retention policy then in effect to the materials in your closed files. At that time, we ordinarily will return to you any original documents we have maintained in accordance with the preceding paragraph while the matter was pending. Otherwise, we will retain the closed file materials for our benefit and subject to our own policies and procedures concerning file retention and destruction. Accordingly, if you desire copies of any documents (including correspondence, e-mails, pleadings, contracts, agreements, etc.) related to this matter or generated while it was pending, you should request such copies at the time our work on this matter is completed. You will be notified and given the opportunity to identify and request copies of such items you would like to have sent to you or someone else designated by you. You will have 30 days from the date our notification is sent to you to advise us of any items you would like to P119 VI.f City of Aspen, Colorado September 5, 2017 Page 7 receive. You will be billed for the expense of assimilating, copying and transmitting such records. We reserve the right to retain copies of any such items as we deem appropriate or necessary for our use. Any non-public information, records or documents retained by Butler Snow and its employees will be kept confidential in accordance with applicable rules of professional responsibility. Any file records and documents or other items not requested within 30 days will become subject to the terms of Butler Snow’s Record Retention and Destruction Policy for Client Files and will be subject to final disposition by Butler Snow at its sole discretion. Pursuant to the terms of Butler Snow’s Record Retention and Destruction Policy for Client Files, all unnecessary or extraneous items, records or documents may be removed from the file and destroyed. The remainder of the file will be prepared for closing and placed in storage or archived. It will be retained for the period of time established by the policy for files related to this practice area, after which it will be completely destroyed. This includes all records and documents, regardless of format. While we will use our best efforts to maintain confidentiality and security over all file records and documents placed in storage or archived, to the extent allowed by applicable law, Butler Snow specifically disclaims any responsibility for claimed damages or liability arising from damage or destruction to such records and documents, whether caused by accident; natural disasters such as flood, fire, or wind damage; terrorist attacks; equipment failures; breaches of Butler Snow’s network security; or the negligence of third-party providers engaged by our P120 VI.f RESOLUTION #125 (Series of 2017) A RESOLUTION OF THE ASPEN CITY COUNCIL, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND STIFEL, NICOLAUS & COMPANY, AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, the Finance Department distributed an open bid for services underwriter services associated with the financing of a new public safety building for the Aspen Police Department in 2016; and WHEREAS, the City received six responses for said services and evaluated those responses for the following criteria: firm and individual team member experience, knowledge of the City of Aspen and its financial position, knowledge of COP placement and past performance with COP issues, fees, and references; and WHEREAS, Stifel, Nicolaus & Company, submitted the best combined proposal relative to firm and individual experience, knowledge of Aspen and resort mountain towns in general, and fees; and WHEREAS, the proposed issuances of debt for new administrative offices and water storage projects are similar in nature and can leverage the recent experience of Stifel, Nicolas and Company under the same terms of the City’s recent engagement for the Aspen Police Department financing; 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 underwriter services (attached hereto), between the City of Aspen and Stifel, Nicolaus & Company 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 25th day of September, 2017. ___________________________________ Steven Skadron, Mayor I, Linda Manning, duly appointed and acting City Clerk do hereby certify that the foregoing is a true and accurate copy of the resolution adopted by the City Council of the City of Aspen, Colorado, at the meeting held September 25, 2017. ___________________________________ Linda Manning, City Clerk P121 VI.f UNDERWRITER ENGAGEMENT AGREEMENT THIS AGREEMENT is made and entered into this ________ day of ________, 20__, by and among the City of Aspen, Colorado (the "Issuer") and Stifel, Nicolaus & Company, Incorporated, (the "Underwriter" or “Stifel”), with reference to the following facts: RECITALS WHEREAS, the Issuer plans to issue General Obligation Bonds, (the “Bonds”) and, Certificates of Participation (“COPs”, collectively, the “2017/2018 Bond Issues”) to finance certain improvments to the City’s water system and construction of a new Town Hall (the “Projects”); and WHEREAS, the Issuer desires and is authorized by law to retain the services of the Underwriter in connection with the issuance of the Bonds; and WHEREAS, the Underwriter agrees to be retained by the Issuer and to provide to the Issuer the services described herein; and WHEREAS, Stifel agrees to act as underwriter, subject to the conditions set forth herein; NOW therefore, for and in consideration of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: Scope of Services The Issuer has engaged the Underwriter to perform various services related to the issuance of the Bonds, which are to be performed within the framework of all relevant rules and regulations. All services are provided on an arm’s length, commercial basis and may or may not be provided in conjunction with services provided by advisors to the Issuer, such as, but not limited to, a financial advisor or a municipal advisor. With this understanding, the Underwriter may provide the following services and perform the following functions with respect to the Bonds: A. Structuring the Financing 1. The Underwriter will work with the Issuer, its bond counsel, financial advisor, disclosure counsel, and other members of the Issuer's financing team in evaluating specific terms and conditions affecting the Bonds with the purposes of meeting the Issuer’s financing objectives and assuring appropriate credit quality; 2. The Underwriter will work with the Issuer to create a feasible and efficient structure for the 2017/2018 Bond Issues in order to enhance the Bonds’ marketability; 3. In cooperation with Issuer, the Underwriter will assist in the preparation of and/or review of all documents necessary to implement the issuance of the 2017/2018 Bond Issues, including, but not limited to, authorizing resolutions, bond purchase agreements, and preliminary and final official statements distributed to potential investors, as required; P122 VI.f B. Marketing the Securities 1. The Underwriter will provide information and material as needed to support presentations for rating agencies and/or bond insurance companies; if requested; 2. The Underwriter will coordinate printing and distribution of the preliminary and final official statements; 3. Together with the Issuer and other appropriate parties, the Underwriter will provide market information on the timing of the sale of the Bonds in relation to the market conditions and financing needs; 4. The Underwriter will arrange for distribution of the final official statements in accordance with Section 240.15c2-12 of Title 17 of the Code of Federal Regulations; and 5. The Underwriter will serve as sole managing underwriter of the Bonds, which obligation is conditioned upon the execution of a mutually satisfactory bond purchase agreements and other customary documentation, and coordinate with all parties so as to consummate the sale and delivery of the 2017/2018 Bond Issues in a timely manner. Regulatory Disclosure Issuer is aware of Section 975 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Securities and Exchange Commission’s adopted rule commonly known as the “Municipal Advisor Rule” (SEC Rule 15Ba1-1 to 15Ba1-8 -“the Rule”) and the underwriter exclusion from the definition of “municipal advisor” for a firm serving as an underwriter for a particular issuance of municipal securities. Some of the services that the Stifel will be called upon to perform, such as providing advice with respect to the sizing, structure, timing and terms of the Bond issuance, are services that are also commonly provided by financial advisory firms. However, in providing such services for the 2017/2018 Bond Issues, the parties understand and agree that Stifel is serving as an underwriter for these transactions and is permitted to give advice and recommendations under the “underwriter exclusion” provision of the Rule. Issuer agrees that Stifel will not be serving as the Issuer’s financial advisor or acting as an agent or fiduciary for the Issuer and that the Issuer will be consulting with its own legal, financial and other advisors. This Agreement and relationship shall be either executed, approved or acknowledged by the governing board of Issuer (the “Governing Board”). Disclosures Required by MSRB Rule G-17 Concerning the Role of the Underwriter 1. Municipal Securities Rulemaking Board (“MSRB”) Rule G-17 requires an underwriter to deal fairly at all times with both municipal issuers and investors. 2. The underwriter’s primary role is to purchase securities with a view to distribution in an arm’s-length commercial transaction with the Issuer. The underwriter has financial and other interests that differ from those of the issuer. 3. The underwriter does not have a fiduciary duty to the issuer under the federal securities laws and is, therefore, not required by federal law to act in the best interests of the issuer without regard to its own financial or other interests. 4. The underwriter has a duty to purchase the securities from the issuer at a fair and reasonable price, but must balance that duty with its duty to sell the securities to investors at prices that are fair and reasonable. 5. The underwriter will review the official statement for the securities in accordance with, and as part of, its respective responsibilities to investors under the federal securities laws, as applied to the facts and circumstances of this transaction. 2 P123 VI.f Disclosures Concerning the Underwriter Compensation The underwriter will be compensated by fees and/or an underwriting discount as outlined in the respective bond purchase agreements to be negotiated and entered into in connection with the issuance of the securities. Payment or receipt of the underwriting fee or discount will be contingent on the closing of the transactions and the amount of the fees or discount may be based, in whole or in part, on a percentage of the principal amounts of the securities. While this form of compensation is customary in the municipal securities market, it presents a conflict of interest since the underwriter may have an incentive to recommend to the Issuer a transaction that is unnecessary or to recommend that the size of the transaction be larger than is necessary. Conflicts of Interest Disclosures Stifel has not identified any additional potential or actual material conflicts that require disclosure. Disclosures Relating to Complex Municipal Securities Financing Since Stifel has not recommended a “complex municipal securities financing” to the Issuer, additional disclosures regarding the financing structures for the 2017/2018 Bond Issues is not required under MSRB Rule G-17. However, if Stifel recommends, or if the Issue is ultimately structured in a manner considered a “complex municipal securities financing” to the Issuer, this letter will be supplemented to provide disclosure of the material financial characteristics of that financing structure as well as the material financial risks of the financing that are known to us and are reasonably foreseeable at that time Limitation of Duties The Issuer acknowledges and agrees that Stifel is not making a commitment to extend credit, make a loan or otherwise fund the Projects beyond the obligations contained in a mutually satisfactory bond purchase agreement. The Issuer acknowledges that the services provided under this Agreement involve professional judgment by Stifel and that the results cannot be, and are not, guaranteed. As addressed above, among the services that Stifel will perform under this Agreement is assistance in preparation of, and/or review of the preliminary and final official statements for the Bonds. We note, however, that under federal securities law, an issuer of securities has the primary responsibility for disclosure to investors. Our assistance with respect to, and/or review of the official statement will be solely for purposes of satisfying our obligations as underwriter under the federal securities laws and such assistance and/or review should not be construed by the Issuer as a guarantee of the accuracy or completeness of the information in the official statement. Expenses The Issuer, from the Bond proceeds or other lawfully available funds, will pay for legal fees, including disclosure counsel; rating agency and credit enhancement fees including all related travel (if any); the cost of appraisal, fiscal consultant, statistical, computer, and graphics services (if any), cost of printing and distribution of the official 3 P124 VI.f statements and expense of publication, advertising, and informational meetings; and the costs of fiscal agent or bond trustee and registrar. Compensation The Underwriter agrees to prepare and coordinate all aspects of the sale of the Bonds. Stifel will be paid only when the Bonds are sold. The fee for Stifel’s preparation and coordination of the sale of the Bonds shall be $3.845 per $1,000.00 of Bonds sold. The underwriting fee is contingent on a successful sale of the 2017/2018 Bond Issues and is payable from the proceeds of the 2017/2018 Bond Issues. Term of Agreement This Agreement is to continue until the Project is financed or until the Governing Board formally abandons the Project, unless previously terminated by mutual written consent of the parties hereto. This Agreement may be terminated at any time by the Issuer, upon five business days’ prior notice to such effect to the Underwriter, or by the Underwriter upon five business days’ prior notice to such effect to the Issuer. Any such termination, however, shall not affect the obligations of the Issuer under the Expenses section hereof. Severability of Provisions If any provision of this Agreement is held invalid, the remainder of the Agreement shall not be affected thereby if such remainder would then continue to conform to the terms and requirements of applicable law. Governing Law This Agreement, and the rights and obligations of the parties hereto, shall be construed, interpreted and enforced pursuant to the laws of the State of Colorado, and exclusive venue in any and all actions existing under this Agreement shall be laid in the action or proceeding which Issuer or Underwriter may be required to prosecute to enforce its respective rights within this Agreement. The unsuccessful party therein agrees to pay all costs incurred by the prevailing party therein, including reasonable interest and attorney's fees, to be fixed by court, and said costs, interest, and attorneys' fees shall be made a part of the judgment in said action. Prior to the commencement of any litigation concerning this Agreement, the Issuer and the Underwriter agree to first submit any disagreements to mediation. This mediation requirement is intended to reduce the costs of dispute resolution for both parties. Subcontractors The Underwriter shall, with the prior written approval of the Issuer, use such subcontractors as are necessary in the fulfillment of this Agreement. Miscellaneous Nothing contained herein shall preclude the Underwriter from carrying on its customary and usual business activities. The Underwriter specifically reserves the right, but is not obligated, to bid for and maintain secondary markets on any Issuer outstanding bonds subject to appropriate information barriers. Services provided by the Underwriter in connection with this Agreement shall not limit the Underwriter from providing services for the Issuer in conjunction with other services requested by the Issuer except as limited by rule of law or regulation. 4 P125 VI.f In connection with services agreed to herein, it is understood that the Underwriter will render professional services as an independent contractor. Neither the Underwriter nor any of its agents or employees shall be deemed an employee of the Issuer for any purpose. The Underwriter shall not assign or otherwise transfer any interest in this Agreement without the prior written consent of the Issuer. The Issuer acknowledges and recognizes Stifel as Underwriter with respect to the municipal securities referenced for purposes of MSRB Rule G-23 and Securities and Exchange Commission Rule 17 CFR (Registration of Municipal Advisors) and acknowledges receipt of the G-17 disclosures included herein. It is our understanding that you have the authority to bind the Issuer by contract with us, and that you are not a party to any conflict of interest relating to the subject transaction. If our understanding is incorrect, please notify the undersigned immediately. This Agreement constitutes the entire agreement between the parties relating to the subject matter thereof and supersedes any prior understandings or representations. The Agreement may be amended or modified only by a writing signed by both parties. It is solely for the benefit of the Issuer and Stifel, and no other person. This Agreement is submitted in duplicate originals. The acceptance of this Agreement by the Issuer will occur upon the return of one original executed by an authorized Issuer representative, and the Issuer hereby represents that the signatory below is so authorized. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. Stifel, Nicolaus & Company, Incorporated By: _________________________________________ Name: Michael Lund Title: Director Date: September 6, 2017 5 P126 VI.f ACCEPTANCE City of Aspen, Colorado By: _________________________________________ Name: Don Taylor Title: Director of Finance & Administrative Services Date: _________________________________________ 6 P127 VI.f Page 1 of 3 MEMORANDUM TO: Mayor and City Council FROM: Ashley Perl, Climate Action Manager THROUGH: CJ Oliver, Environmental Health and Sustainability Director DATE OF MEMO: September 18, 2017 MEETING DATE: September 25, 2017 RE: Resolution #128, Series of 2017 – Compact of Colorado Communities Membership REQUEST OF COUNCIL: Staff requests that City Council approve Resolution #128 and support the City of Aspen’s membership in the Compact of Colorado Communities. PREVIOUS COUNCIL ACTION: Beginning in 2016, City Council supported Mayor Skadron’s vision to establish a state-wide network of Colorado’s towns, cities and counties united together in taking aggressive climate actions. City of Aspen staff worked with City Council throughout 2016 and 2017 to form the new network known as the Compact of Colorado Communities and host the kick-off event in Aspen in May, 2017. BACKGROUND: Originally introduced by Mayor Skadron, and supported and informed by City Council, the Compact of Colorado Communities was an idea that originated from Mayor Skadron’s experience at COP21, the international climate talks in Paris. Mayor Skadron returned from Paris energized to replicate the cooperation and collaboration he witnessed in Paris here in Colorado. He proposed to City Council and staff that the City of Aspen take the lead in the state of Colorado by uniting mayors, commissioners and council members across the state around a shared vision for climate action and resiliency building. The responsibility to reduce global greenhouse gas emissions falls heavily to cities and states, especially in the face of limited climate action from the US federal government. The City of Aspen continues to work in partnership with the community it serves to significantly reduce local emissions, however larger reductions are needed across the world to curb the impacts of a changing climate. Aspen can have a meaningful impact by leading the way and setting a replicable example as a catalyst for much larger action and emissions reductions in cities large and small. By setting an example through a local commitment and by also coalescing other local governments around a shared vision, the City of Aspen can play a significant role in reducing global greenhouse gas emissions. P128 VI.g Page 2 of 3 Staff and City Council worked for over a year to create the structure and process for the Compact of Colorado Communities. To kick-off the Compact, Aspen hosted over one-hundred leaders, representing 35 cities and counties, at the Climate Communities Summit. This day-long event was revered by many as a truly unique gathering of Colorado’s local elected officials. At the Summit, these 35 communities agreed to champion the Compact and return to their respective boards and councils with a formal resolution or executive order to formerly join and participate in the Compact. Mayor Skadron was the first to sign the agreement that read “I commit to advancing my community’s efforts to address climate change by championing our participation in the Compact of Colorado Communities. I will ask that my governing body consider the Compact’s charter by no later than September 30, 2017.” Attachment C includes a picture of Mayor Skadron signing. DISCUSSION: Although the City of Aspen is the founder and creator of the Compact, it is still necessary for the City to formally join the Compact and commit to be an active participant. To date, 23 cities and counties have formerly joined the Compact through a resolution or executive order, and it is anticipated that more will join in the coming weeks. After the Summit in Aspen, administration and organization of the Compact was turned over to the Association of Climate Change Officers (ACCO). Staff from ACCO were instrumental in creating the structure and functionality of the Compact. The Charter document of the Compact, as written and created by ACCO, with support and input from Compact members, states that the Compact will provide training and technical support to member communities in developing and delivering community improvement programs advancing GHG reduction, clean energy and climate preparedness. More specific resources available to all members include: • Facilitating peer learning and resource sharing between local governments • Enhancing local government capacity to address climate related risks and opportunities throughout critical decision-making roles • Securing technical support and funding resources for members’ local implementation efforts • Spurring creation of jobs, improving public health and demonstrating bold actions • Advancing statewide preparedness and resilience By joining the Compact, the City of Aspen agrees to the following commitments from the Compact’s charter document: 1. Training & Capacity Building • Commit at least one elected official and assign at least one senior staff member to participate in the annual convening of the Compact. • Commit leadership and senior staff participation in annual climate change training as referenced in the Compact’s published guidelines. 2. Contribution & Funding • Make an annual contribution to the Compact, with the first contribution • Encourage staff, as appropriate, to provide non-financial support to the Compact’s fundraising efforts to ensure that the Compact has sufficient and sustainable funding to supports its members. 3. Actions P129 VI.g Page 3 of 3 • Establish and publicly announce a new goal or initiative by no later than September 30, 2019 that meets an appropriate aggressiveness threshold to be agreed upon by the Steering Committee in consultation with ACCO and Compact staff. 4. Participation • Assign one elected official and one senior staff person to serve as liaisons and official representatives to the Compact. • Elected officials will be invited to participate in activities designed and appropriate for elected officials and government leaders (to be held no more frequently than twice annually). • Staff liaisons will be asked to address administrative issues, process annual contributions, coordinate usage of Compact benefits and participate in Compact-wide meetings (to be held no more frequently than on a quarterly basis). Attachment B includes the Compact of Colorado Communities Agreement. FINANCIAL/BUDGET IMPACTS: The City of Aspen’s annual contribution to the Compact will be $2400. These funds will be paid out of the Climate Action budget in 2017 and 2018. ENVIRONMENTAL IMPACTS: Aggressive climate action and adaptation remains a key focus of the City of Aspen. By joining the Compact, the City will increase its ability and capacity to address climate change. This will impact a number of City Council’s environmental sustainability indicators including: § Percent of energy from renewable sources § Community-wide greenhouse gas emissions § Energy use from the built environment § Mass transit use RECOMMENDED ACTION: City Council approve the resolution and formerly join the Compact of Colorado Communities. ALTERNATIVES: City Council could elect to not join the Compact and the City of Aspen would not receive support and benefits from the Compact. ATTACHMENTS: Attachment A: Resolution #128 Attachment B: Compact Agreement Attachment C: Picture of Mayor Skadron at the Climate Communities Summit P130 VI.g RESOLUTION #128 (Series of 2017) A RESOLUTION APPROVING THE CITY OF ASPEN TO JOIN AND PARTICIPATE IN THE COMPACT OF COLORADO COMMUNITIES. WHEREAS, the City of Aspen is committed to creating, supporting and maintaining a sustainable and prosperous community, and WHEREAS, Colorado communities, including Aspen, are already beginning to feel the impacts of climate change such as reduced snowpack, earlier snowmelt runoff, and more frequent and severe floods, droughts and wildfires, and WHEREAS, a sustainable Aspen is one that takes responsibility for its impact and footprint on the surrounding environment while at the same time building resiliency to coming changes, and WHEREAS, Aspen is currently working towards reducing the community’s carbon by 30% by the year 2020 and 80% by 2050, and WHEREAS, Aspen and other communities across the world require staff capacity, funding, and support to achieve ambitious carbon reduction goals, and WHEREAS, Aspen alone cannot reduce greenhouse gas emissions sufficiently to curb global climate change and relies on others to do the same, and WHEREAS, all local governments, communities, towns and cities across the globe must aggressively work to reduce their carbon footprints, and WHEREAS, Aspen seeks to join neighboring cities and counties in developing innovative ways to address climate change, build community resilience and stimulate local economies, and WHEREAS, on May 19, 2017, Aspen Mayor Steven Skadron urged Colorado’s elected officials to join together to fight global climate change and build a sustainable Colorado through the formation of the Compact of Colorado Communities, and WHEREAS, the mission of the Compact of Colorado Communities is to build the capacity of Colorado’s cities and counties in developing and implementing aggressive climate change and clean energy initiatives thus ensuring the security and economic prosperity of its member communities, and P131 VI.g WHEREAS, the Compact of Colorado Communities will advance climate action and preparedness of its member communities, including the City of Aspen, and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen formally joins the Compact of Colorado Communities as an active member and agrees to support the activities of the Compact. Dated: September 25, 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 September 25, 2017. ______________________________ Linda Manning, City Clerk P132 VI.g Compact of Colorado Communities Member Agreement Purpose The Compact of Colorado Communities (the “Compact”) has been established to the mission of the Compact of Colorado Communities is to build capacity of Colorado cities and counties in developing and implementing aggressive climate change and clean energy initiatives thus ensuring the security and economic prosperity of its member communities. The Compact seeks to ensure that Colorado communities are sustainable, prosperous and responsible through accelerated capacity building, alignment of resources and interests, and public engagement on climate change action. Compact Objectives • Providing training and technical support to member communities in developing and delivering community improvement programs advancing GHG reduction, clean energy and climate preparedness; • Facilitating peer learning and resource sharing between local governments • Enhancing local government capacity to address climate related risks and opportunities throughout critical decision-making roles; • Securing technical support and funding resources for members’ local implementation efforts; • Spurring creation of jobs, improving public health and demonstrating bold actions; and • Advancing statewide preparedness and resilience. Membership To join the Compact using this agreement template, the local government’s mayor must agree to the following requirements and execute the form below. Membership in the Compact is binding and has no term length. 1. Training & Capacity Building • Commit at least one elected official and assign at least one senior staff member to participate in the annual convening of the Compact. • Commit leadership and senior staff participation in annual climate change training as referenced in the Compact’s published guidelines. 2. Contribution & Funding • Make an annual contribution to the Compact per the published guidelines, with the first contribution due by no later than 30 days after your fiscal year start date. • Encourage staff, as appropriate, to provide non-financial support to the Compact’s fundraising efforts to ensure that the Compact has sufficient and sustainable funding to supports its members. P133 VI.g Compact of Colorado Communities Member Agreement 3. Actions • Establish and publicly announce a new goal or initiative by no later than September 30, 2019 that meets an appropriate aggressiveness threshold to be agreed upon by the Steering Committee in consultation with ACCO and Compact staff. 4. Participation • Assign one elected official and one senior staff person to serve as liaisons and official representatives to the Compact. • Elected officials will be invited to participate in activities designed and appropriate for elected officials and government leaders (to be held no more frequently than twice annually). • Staff liaisons will be asked to address administrative issues, process annual contributions, coordinate usage of Compact benefits and participate in Compact-wide meetings (to be held no more frequently than on a quarterly basis). A more detailed list of Compact guidelines has been published at: https://www.compactofcoloradocommunities.org/s/ACCO-ColoradoCompact-Guidelines.pdf The undersigned represents that he/she is authorized to enter into this Agreement on behalf of his/her local government. EXECUTING THIS AGREEMENT REPRESENTS AND WARRANTS TO THAT YOU HAVE READ AND FULLY UNDERSTAND THE TERMS AND PROVISIONS HEREOF, HAVE HAD AN OPPORTUNITY TO REVIEW THIS AGREEMENT WITH LEGAL COUNSEL, AND HAVE EXECUTED THIS AGREEMENT BASED YOUR OWN JUDGMENT AND ADVICE OF INDEPENDENT LEGAL COUNSEL (IF SOUGHT). I hereby authorize __________________________________________ to join the Compact of Colorado Communities, authorizing our staff to abide by the above-referenced program guidelines. _________________________________________ Signature _________________________________________ Local Government Name _________________________________________ Date ________________________________________ Print Name ________________________________________ Title P134 VI.g P135 VI.g MEMORANDUM TO: Mayor and City Council FROM: Linda Manning, City Clerk DATE: September 20, 2017 RE: Council Board Appointments Based on Council’s discussion, below are the Council appointments for 2017-2018. By adopting the consent calendar, Council will be making the following appointments. Boards Mayor Pro Tem Ann Mullins CAST Steve Skadron RFTA Steve Skadron / Ann Mullins DRGW Covenant Enforcement Ann Mullins NWC Council of Government Ward Hauenstein / Bert Myrin Aspen Chamber Resort Association Steve Skadron / Bert Myrin Arts Council Ann Mullins / Adam Frisch / Steve Skadron Ruedi Water & Power Authority Ann Mullins CORE Board Adam Frisch / Ward Hauenstein Sister Cities Ward Hauenstein / Adam Frisch Burlingame Housing Inc Barry Crook CML Policy Advisory Board Ann Mullins Nordic Council Adam Frisch / Ward Hauenstein State Board of Health Ann Mullins P136 VI.h Regular Meeting Aspen City Council September 11, 2017 1 CITIZEN COMMENTS ............................................................................................................................... 2 COUNCIL COMMENTS ............................................................................................................................. 2 CONSENT CALENDAR ............................................................................................................................. 3 Resolution #121, Series of 2017 – Water Campus Backwash Pond Sediment Removal Contract ....... 3 Minutes – August 28 and September 5, 2017 ....................................................................................... 3 ORDINANCE #21, SERIES OF 2017 .......................................................................................................... 3 SPECIAL MEETING – September 19, 2017 ............................................................................................... 8 P137 VI.i Regular Meeting Aspen City Council September 11, 2017 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Hauenstein, Myrin, Frisch and Mullins present. Mayor Skadron said today is September 11th and he would like everyone to take a moment of silence in remembrance. He attended the memorial at the fire station today and they handed out red rose for the fireman we lost and white rose for the police officers we lost. He also said we are thinking about those who have suffered during the hurricanes. We started tonight with a site visit at the Boomerang. CITIZEN COMMENTS 1. Emzy Veazy III said the high holy days are coming up. The golf course is a profit center and we should be making money from it. We should cater to high school and college students. 2. Jordan Gray-Dekraai, engineering department, said they recently purchase two E bikes instead of buying a new car in part to reduce greenhouse gases. They will help to get staff to where they need to go. They want to encourage anyone to test drive them to stop by the department. The base model was 900 dollars. 3. Bob Morris did a show and tell of doggie bags. The old bags were much better. The new ones are smaller and cheaper made. You have to lick your fingers to get them open and can’t tell what end is the one to open. They will be difficult to use when the weather gets colder. COUNCIL COMMENTS Councilman Myrin thanked Jordan for the e bike presentation. I think the police have one as well. He completely agrees on the dog bags. The change will be a problem as soon as winter comes. Councilwoman Mullins said a little over a year ago Liz Chapman gave a presentation on the landfill. I would like staff to revisit that presentation. Construction trash is a problem as well as composting. The window on the landfill is closing quickly. Boulder has a really good ordinance. Councilman Frisch said he attended the ACRA/Ski Co presentation last week. He thanked both organizations for the great gathering. AT the last Council meeting we discussed getting the sign code more in line with the supreme court ruling. Bert and myself had a discussion if there was a way to automatically extend the signs being used without getting into a fee issue. After 2018 the sandwich boards will not be allowed on city property. I was wondering if there was a way to automatically extend them to that date. Jim True, city attorney, said the ordinance did allow the extension of any permit applied for before the September 28th 2017 deadline to be extended to September of 2018. If you have a valid permit that expires this month it will continue to 2018. The question is if you do not have a valid permit for a sandwich board or it expires then you need to come in and seek a permit for it then it will be good until Sept of 2018. Councilman Frisch said he is not sure how many people are aware they will be gone in 2018. I believe staff is trying to contact all sandwich board owners. Jessica Garrow, community development, said she would suggest all the business owners who have one or want one come in and speak to us. Anything that is valid after the effective date of the ordinance is automatically renewed. Councilman Hauenstein said at noon there were about 400 roses stuffed in boots and each rose had a name and picture of someone killed on 9-11. I ask you to remember John Giradono. Mayor Skadron thanked Rick Balentine from the fire department for the memorial. He also thanked Keith from parks for the Mack And Cheese fest. The winner was Cache Cache. Ironically a vegetarian dish. He also thanked the team from parks for putting on the community picnic at the golf course yesterday. Lots came out and it was a fun day. P138 VI.i Regular Meeting Aspen City Council September 11, 2017 3 CONSENT CALENDAR Reso 121 – backwash sediment removal Councilwoman Mullins said sometimes the dregged up stuff is quite rich in nutrients. Can it be put to use. Tyler Christoff, utilities, said he does not believe it is rich in nutrients. It is coming from Castle and Maroon creeks. The testing have not found it to be the case. Councilman Hauenstein said it looks as though every two to three years this has to be done. He suggested this put it in the budget. Mr. Christoff stated it will be. · Resolution #121, Series of 2017 – Water Campus Backwash Pond Sediment Removal Contract · Minutes – August 28 and September 5, 2017 Councilman Frisch moved to adopt the consent calendar; seconded by Councilman Hauenstein. All in favor, motion carried. ORDINANCE #21, SERIES OF 2017 – 500 W Hopkins Avenue ( Boomerang Lodge) PD Amendment Jennifer Phelan, community development, told the Council this property is located at 500 West Hopkins between 4th and 5. Staff is recommending to continue the public hearing to October 9th. The property was approved in 2006. Tonight’s application is to make some changes to the original approvals. There was a site visit at 4pm to look at the original wing that is still standing. There were some late letters that were forwarded to Council that have been entered as exhibit I. The history goes back to the 2006 redevelopment that was approved by Council. It approved the middle and west wing. It was for 47 keys, 29 units, 5 free market units and 2 affordable housing units. It is a mix of 2.5 stories to 36 feet and 26.6 feet on the west wing. There is a lodge overlay on the property. The site specific development locked in the heights and programming. A development order was issued with three years of vested rights. In 2007 a demolition permit was issued and most of the building was demolished. A permit for redevelopment was submitted but never issued. In 2009 an extension of vested rights was granted until 2012. In 2011 a planned development amendment to modify the affordable housing was granted. Later in 2011 a complaint was filed in district court and upheld in 2013. The decision was later appealed. In 2012 a second extension of vested rights was granted until October 2015. Prior to 2015 a building permit application was submitted and deemed complete. Today, the project is in the building permit review. What can be built today is the 2006 approval. The maximum floor area is 46,140 square feet. what is proposed is to change some of the programming, materials and architecture. They are not proposing any changes to height, setbacks, floor area or parking requirements. Since the vested rights have expired these changes need to be reviewed under the current code. They do need to make the trash enclosure larger and the parking needs to be moved and turned into parallel parking. The 2017 amendments propose changes in programming and circulation and architectural changes. There are still 47 keys but a drop in the number of units to 23. There are also circulation changes. They are proposing changes from exterior circulation to interior and sheltered. There are also slight changes in glazing and a roof plane change. The lodge units become more suite like. What this does is the keys remain the same but the units drop. The average unit goes from 800 square feet to just over 1,000. On the second story, exterior circulation has been replaced with balconies and the circulation has been moved to the interior. The applicant is asking for a discount in the permit fees and an expedited review process as part of the small lodge package. In exchange, they will run it as a lodge for 20 years. Affordable housing does not change on the project. Since first reading we would like to see smaller lodge unit sizes, more amenity apace and updates to the trash. The basement stays the same. We are recommending a continuation to October 9th. Councilwoman Mullins asked if there are still five free market units and what the average size is. Ms. Phelan replied the 3rd story average size is about 1,700 square feet. The fourth story average size is between 2,500 and 2,650. Councilwoman Mullins asked if there are still two affordable housing units. P139 VI.i Regular Meeting Aspen City Council September 11, 2017 4 Ms. Phelan replied yes. Councilwoman Mullins said the interior corridor is it taking away from the communal space. Ms. Phelan said initially when we looked at the floor area numbers it looked like there were changes to meet the floor area numbers. It looks like it is what people expect today in a lodge. Councilman Myrin said he saw this in 2001 for P&Z and in 2010. He said he commented in 2014 on the lodge incentive program. On page 58 this is not met. Ms. Phelan said the dimensional requirements are met because they are locked in with the PD. We are concerned about the larger lodge units because we have a cap. Councilman Frisch asked about the fee reduction and what happens if they don’t honor it and after 20 years if it were not to be a lodge at all. What happens on 20 years and a day. Ms. Garrow said the program was approved and specifically lists the Boomerang can take advantage of the benefits. There are three tiers of guarantees. If a lodge signs that it will be a lodge for 5, 15 and 20 years. Because it is a significant redevelopment it requires the longest time and smallest amount of fee waiver. Boomerang lodge, because of what they are proposing, they need to enter into an agreement that says 20 years. If 20 years and a day they want to do something different they need to come to City Council and amend their approval to change the use. If during the 20 years they change the use, we are owed the fee reduction. Councilman Frisch said the loss of the 25 percent is not the only thing stopping them. They would have to come back to change the use. Ms. Garrow said an example would be the little red ski house. They would have to tear off much of the non historic part of the building. Councilwoman Mullins asked what is the criteria for the small lodge program. Ms. Garrow said because they are listed in the ordinance they are able to opt in. we have had two lodges enter into agreements in the 5 year program. Applicant Chris Bendon, Eric Witmondt, ME Aspen One Ventures LLC, Rob Sinclair, Sinclair architects. and Ben Genshaft. Mr. Bendon stated the project is shovel ready. They are simple modest improvements to the approval to improve the amenity space. All else is the same. The changes are to the program, interior layouts and amenity space. He showed the floorplan of the first floor existing approval. The existing approval consists of 39 units with 47 keys. The proposal is 23 units with 47 keys. It will relocate a stair in the existing as well as the end of a hallway in the proposal. We did do outreach to the neighbors. What we heard is parking, trash and recycle. We have a beer and wine license in the proposal and there is a concern from the Christiana about that. We want to talk about the 1,500 square feet. There are zone districts where this limitation applies. It does not apply to residential and LP or city owned properties or SCI, NC, MU, CL, SKI, L. What is left is the CC and C1. They allow for lodging but not the principal use. This is post moratorium. Our property on West Hopkins is zoned R6 with a LP overlay. It is our position that the limitation should not apply. Our other argument is the unit sizes in the largest configuration is they hover around 1,500. We are not looking at units that are obscene on their face. Lastly, we are attempting to use an existing approval. For the lodge amenity space the current entry point is pretty dismal. We want to provide an obvious point for where the action is taking place. The parking requirement is for 31 spaces on site. There are 32 in the garage. There are 11 surface spaces. We prefer more rather than fewer. We heard that loud and clear from the neighborhood. The most important thing for us is access. If they could be signed for the Boomerang we could live with that. Heights – the property itself has a 6 to 7 foot fall. As designed the project has some internal heights that we could not make sense of. There is a five inch change we are proposing on the west. We see this as a technical correction. This is an iron clad lodging operation. This is a lodge and subject to all the lodge operations. Yes, this is absolutely a lodge and we are very aware of the limitations on use. Our first priority is we have a highly functioning project and flexibility. We are intending to opt in to the lodge incentive program. We’ve talked about the city’s request for an audit and are willing to comply. P140 VI.i Regular Meeting Aspen City Council September 11, 2017 5 Mr. Witmondt stated when Marshall and I started thinking of taking on this here we have some history. I started coming to Aspen with my father, now with my wife and child. Marshal started coming here when he was in college. Together our two families bought a home on East Hopkins and that is what got us interested in this project. When we were originally introduced in this project we thought it had a lot of merit. We looked at programming and think it is a spot where families will want to be. The other aspect was the sense of arrival and using the lodge as a place where you want to stay. Mr. Bendon said we are in receipt of the Jody Edwards letter. We disagree with his assessment of the vested rights. The city has been very clear with us. We also disagree with his assessment of Ref 1. We feel we have a simple and modest amendment that is shovel ready. We can make the project better and this will return lodging to a property that has historically had lodging on it. Councilman Frisch said the ability was to walk in to the building department with a permit and build what was approved. Some rooms get a little larger. Mr. Bendon said it is an attractive projective. It has its design flaws. We look at this as a way to dramatically improve the functionality and guest experience. Councilman Frisch said the 1,500 square feet was more of a suggestion then a violation of any zone. Ms. Garrow replied correct, Chris’s characterization is accurate. This is a development and we felt it important to highlight. It is not a technical violation. Councilman Frisch said without the LP overlay, there is a single family house that can go up. With the LP there is no permit in process. If someone wanted to put a lodge there they could. What dimensions would we be looking at. Ms. Phelan replied it is a PD so it would be setting the dimensions. Councilman Frisch said it is not like this is zoned 2 or 3 stories as a lodge. Ms. Phelan replied correct. The Council in 2006 determined the dimensions through the PD were appropriate for the neighborhood. Councilman Frisch asked if they can talk about your hospitality background and where this fits in. Mr. Witmondt said neither Marshall or I are hotel operators we are real-estate developers. We then always bring in a hotel operator. We go out to the best in class to manage. In Two Roads we felt we found the best. Councilman Myrin said the parking proposed reduction is justified because the code has changed. Ms. Phelan said in 2006 it was 31 on site spaces. As part of the approval it also allowed for use of the right of way. Today the standards state the minimum is 31 and could be reduced with mobility and improvements on site to 29. The standards also allow for up to 42. The site plan shows 32 spaces in the basement which meet the requirement. Engineering requests the right of way parking be updated to parallel and only available to the public. Councilman Myrin said as approvers of the current PD we would set the parking requirement. On site wouldn’t include the on street. Another moving part is the free market residences are above 1,500 square feet. We can set that number in the PD. Ms. Phelan said there was not a cap in 2006. Today there is a range up to 1,500 and 2,000 with a TDR. Generally speaking, they are in the range. Councilman Myrin said it would require a TDR if they are over 1,500. The exemption for decks and stairs is new this time. Ms. Phelan said that was locked in via an ordinance last year. In 2006 the drawings and plans did not reconcile. Last year the drawings and ordinance were reconciled. Councilman Myrin said the butterfly roof is new. Ms. Phelan said we are seeing more of those today. Mayor Skadron said the first standard includes development suitability. Ms. Phelan replied things like steep slopes, mud flow zone, flood plane and natural hazards on site. Mayor Skadron said for item C, site planning is not met. Is staff’s objection to the head in parking. Ms. Phelan replied yes, it would need changed to meet the engineering standards as well as to massing. Mayor Skadron said character suitable for indicative uses. Are the proposed dimensions suitable for primary use, specifically to proposed program. Ms. Phelan said it is a departure from the original approval. Mayor Skadron said for the Jerome approval, was that granted with the larger rooms. Ms. Phelan said there were a couple presidential suites. Ms. Garrow said the request from the applicant is to reduce the number of units that results in the larger size. Councilman Hauenstein asked if they had to have larger units for the marker. What are you basing that on, Two roads management or your gut. Mr. Witmondt said we spoke to a number of management P141 VI.i Regular Meeting Aspen City Council September 11, 2017 6 companies and looked at the Star report plus our own gut, residential neighborhood and our own experience. We are still maintaining all the smaller rooms but allowing the flexibility and different choices. We are opening up the market instead of saying one size fits all. Mayor Skadron opened the public comment. 1. Jody Edwards said he represent Steve Goldenberg, John Staton and the Christiana. He sent two letters last week and wants to make sure they are in the record. Ms. Phelan stated they are in the record as exhibit I. Mr. Edwards said it is a really simple matter. You don’t have jurisdiction to review this matter. The development orders expire after 10 years. This is the 11th year. There is nothing left to review tonight. The disagreement focuses on 26.304.080d. It is clear there is no site specific plan order or vested rights that exist today. Without this there is nothing to amend. The applicant is ignoring “in no case shall a development order be valid more than 10 years”. In this case this has been done too long. There is an ultimate limit. The development order is not valid. A permit does not constitute a site specific development plan. There is a good reason for having expiration on development orders. Things change. The parking requirements are set forth in ordinance 26 of 2006. It is 31 underground and 12 on the surface. It is a reduction in the parking therefore you go to Ref 1. Mr. True said Jody raised a lot of issues. I think Council should focus on the application that is in front of you. If you want to consider these arguments I think you should consider the application. The applicant has a right and the city has an obligation to study these arguments in more detail. We received this letter Thursday night. 2. Daryl Shawl, president of the Christiana HOA, said he is interested to understand the agreement over time as how it will impact the owners of the units. Those individual lodge rooms were considered necessary by that council because there was a dearth of those units at that time. Now what you are asking to do is defacto create a number of condominium units so it is not a lodge. These have approved aspects of condominiumization that don’t make it a normal lodge. A lot of things have changed over time and I’m wondering if they are addressing all the code changes over time. Our neighborhood has remained relatively residential. 3. Dick Carter stated the height has not been focused on enough and the impact it has on the entire neighborhood. They have good intentions but what they will do is put a big shadow over the neighborhood. If there was such a need why hasn’t it been built before. There is no reason to start it now. 4. Cheryl Goldenberg said she appreciates them reaching out to us. She has lived there since 1986. I went to P&Z in 2001. They did not like what was happening. It was good will for the Boomerang. It was never something that worked. It is just too big. It is bigger than the art museum. The building that was approved doesn’t fit. 5. Steve Goldenberg said from today on you need to vote no. It has to be right for the site from now. I appreciate Chris reaching out to us. You need to do what is right and legal. It is too big and massive and it needs to be fixed. 6. Michael Hoffman, on behalf of the contract seller, read a statement from Steve Stunda. He said this has been the most scrutineer project in Aspen history. They believe the building permit was ready to be issued this past June upon payment of fees. The application you are considering today seeks changes only to the exterior of the project. We strongly believe this hearing should be focused only on the narrow interior changes. He urged council to approve the request. The two bases that refute the 2006 approval are dead. The process we went through with council last year gave us a new development order and vested rights. The vested rights either had power or did not. We submitted our building permit application two years ago today and got notice the application was complete, before the October deadline. 7. Toni Kronberg said she does not see any transportation mitigation in this ordinance. You could have an additional 54 cars at full capacity. It is a very limited neighborhood. Mr. Bendon said he wants to reinforce what is in our mind minimal changes to a live building permit. For the parking within the right of way, we are large part subject to city direction. P142 VI.i Regular Meeting Aspen City Council September 11, 2017 7 Councilman Myrin said page 56 does a good job of outlining the review standards for this. #C compatible with context, he does not find this to be in any way. He agrees with staff on the head in parking. Also, a discussion about reducing the number of rooms. He does not support it. Page 57, table 1 dimensional requirements is missing the free market units. The reduction in 6 units and parking by 3 units I don’t support those. Page 58, #2 – lodge unit size, I agree with staff that these units are proposed larger than other zone districts in town. The reason for smaller units is to get people out of the units and enjoying town even if we have to have tents over restaurants over Christmas. Page 59, parking, I don’t see the reduction in the number of cars coming. Parking on street needs to go underneath the property as car storage. Page 60 #E – design standards, the butterfly roof flys in the face of the adjacent properties. I would support a denial of this ordinance tonight. If there is not support for that I would support the staff recommendation for continuation. Councilwoman Mullins said she is separating the request for the amendment from whether the application should stand. We can consider the application on its own merits. I’m looking at just the amendment. The small lodge program is quite successful and generated from a report. Our bed base is 40 percent condos and the rest hotel and lodge rooms. The families are taken care of through the condo inventory. What we need are the smaller rooms. What I see is this proposal going from more rooms to fewer is not what we need here. What we need are the smaller units. The common areas are great. The parking I would support. The architecture, I don’t have a whole lot to say. The entire project I think is too large. I can’t support approving this amendment because what we are looking for generally is smaller lodging units. Councilman Frisch said the long term health of the community is best served by a community with appropriate sized lodges. Any lodge approved regardless of size but it must be based on turn over. A single ownership entity who wants to rent out as many rooms as possible for as much money as possible as often as possible. The issue becomes in the condominium ownership model the master owner will unload the financial risk from the master owner to the individual owner who very well might be happy to keep dark unless they might want to use it for no more than 30 consecutive days or 90 days in a year. When the rooms are being used it doesn’t matter who owns the lodge. The problem becomes and what is the financial incentive for someone to put the rooms into the rental pool. A traditional hotel will want to rent out as much as possible. The Gant model works because it is kept in the rental pool. The chances of rooms that are condominimized being dark are vastly greater than those that are owned by a single entity or is running the who building and that is a concern. I don’t think we should be involved in the room size. If we are dealing with a traditional hotel the new room size is better than the old. If one has an interest to maximize the condo they will want it to be as big and as nice as possible and that is the crux of my problem. The layout and room size remains a rounding error of the issue. The elephant in the room is the height and longevity of the project. I don’t have a tremendous amount of sympathy of the neighbors who say it is a residential zone. If this was a two story building it would be a great path to success but we have more than that we have to have a discussion on. Bigger is ok as long as it is filled up by a use that is going to be used by the community. Councilman Hauenstein said for him it is not so much ordinance 21, 2017 but 26, 2006. I don’t think we would be talking about the issues Jody brought up if this was here two years ago. Page two of Michael’s letter, the project shouldn’t expire until 2026. He would support continuing this. He wants to make sure we have a live application. Councilwoman Mullins said if we don’t approve the amendment we are still going to look at the validity of the application. Mr. True said what happens with the remainder is a totally different discussion. The owner of the property would have an opportunity to address that. If you deny that we are on totally different footing on the validity of the permit that has been applied for. That may take a whole different life. I’m not prepared to address that. What Mr. Edwards has raised is a jurisdictional question and if you deny the application it is muted. P143 VI.i Regular Meeting Aspen City Council September 11, 2017 8 Mayor Skadron said where he struggles is finding that what is presented satisfies the review standards and dimensions points 2 and 3. Are the primary uses compatible with and enhance the neighborhood. Councilman Myrin moved to continue to October 9th. Mayor Skadron said this is in part to satisfy Wards desire as well as Adams. Councilwoman Mullins said she is not clear why we are continuing if we are just facing the same thing in October. Mr. True said you certainly may face the same thing in October. Assuming they have a valid land use approval and then you may just be asked to do is approve the amendments in front of you right now. Nothing may change except to answer Mr. Edwards questions. You very well could be right back where you are. Councilwoman Mullins said she still stand by with what she said earlier. Mayor Skadron said if the motion is made to approve what the applicant is proposing tonight and it fails. Mr. Bendon said we have an interest in the legal disposition of the property itself. A lot of these issues were brought up last minute. It is our preference the application be continued to understand the legal disposition. Councilman Frisch said on the legal issue in a couple weeks the city attorney may have a strong view one way or the other. The reason we wait for October 9th is for more clarity. If we are going to get this height in this box no matter what I think the applicant has turned it in. I think we should continue to October 9th. Roll call vote. Councilmembers Frisch, yes; Hauenstein, yes; Myrin, no; Mullins, no; Mayor Skadron, yes. Motion carried. Councilman Hauenstein moved to adjourn at 9:20 p.m.; seconded by Councilman Frisch. All in favor, motion carried. Linda Manning City Clerk SPECIAL MEETING – September 19, 2017 At 5:45 p.m. Mayor Skadron called the special meeting to order with Councilmembers Mullins, Frisch, Myrin and Hauenstein present. Jim True, city attorney, requested Council go in to executive session pursuant to C.R.S. 24-6-402 (b)(e) conference with attorneys and determining positions relative to matters that may be subject to negotiations, developing strategy for negotiations and instructing negotiations regarding the Castle and Maroon Creek diligence cases. Councilman Frisch moved to go in to executive session; seconded by Councilman Hauenstein. All in favor, motion carried. At 6:26 p.m.; Councilwoman Mullins moved to come out of executive session; seconded by Councilman Hauenstein. All in favor, motion carried. Councilman Frisch moved to adjourn; seconded by Councilman Hauenstein. All in favor, motion carried. Linda Manning City Clerk P144 VI.i Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Anthony Lewin, Tax Auditor THRU: Don Taylor, Finance Director DATE OF MEMO: September 18, 2017 MEETING DATE: September 25, 2017 RE: Ordinance #24, Series of 2017 –Standardized Definitions Project REQUEST OF COUNCIL: The words and phrases defined in the City Code Chapter 23.04.010, were last updated in 1992 (Ord. No. 26-1992). This section defines key words for taxation in the City of Aspen. The request to City Council is to update the definitions per the standardized definitions project spearheaded by the Colorado Municipal League. PREVIOUS COUNCIL ACTION: In 1992, the City Council of Aspen, adopted the standardized definitions which we currently use (through Ord. No. 26-1992). BACKGROUND: Colorado is virtually unique among the states when it comes to the manner in which sales taxes are collected. Home rule municipalities often impose local collection, thus, requiring businesses to remit sales tax returns and payments directly to each municipality. While the system is quite effective for municipalities, it is largely regarded by multi-jurisdictional businesses as complex and burdensome. In an effort to simplify local collection, the Colorado General Assembly adopted Senate Joint Resolution 14-038 requesting that the Colorado Municipal League, in cooperation with the 69 locally collecting municipalities, create a set of standardized sales tax definitions. The primary objective of the request is that of improving clarification of the current tax practices, while not resulting in the levy of additional taxes, or the exemption of currently taxable goods or services. An additional goal was that these definitions could be adopted without any difference in tax treatment being experienced by local businesses. DISCUSSION: It is the Finances Department’s goal to create a sales tax ordinance that is fully enforceable, that minimizes the necessity for judgment calls and/or interpretations, and that contains no provisions which the City is not likely to enforce. P145 VIII.a Page 2 of 2 Finance department staff has conducted a thorough evaluation of the proposed standardized definitions via the development of the enclosed redline definitions. Staff has concluded adoption of certain standardized definitions will have no impact on Aspen’s existing tax practices, thus remaining revenue neutral. It will also provide clarity to the businesses that operate in more than one home rule municipality. Attachment (A) Section 23.04.010 Words and Phrases Defined (Redline Version) is provided to assist in a visual representation of the proposed changes. Additions to the current code can be found colored red, movement from one area in the code to another section is colored blue. Deleted sections are red with a strikethrough. FINANCIAL/BUDGET IMPACTS: The goal of this amendment is to achieve the standardization of definitions with other home rule municipalities and not impact the financial or budget aspect. RECOMMENDED ACTION: The Finance Department Staff recommends approval of the enclosed ordinance as presented. ALTERNATIVES: If Council does not want to approve the standardized definitions, the alternative is to maintain the 1992 version of standardized definitions. PROPOSED MOTION: I move to approve Ordinance #24, Series of 2017 CITY MANAGER COMMENTS: ATTACHMENTS: A – Section 23.04.010 Words and Phrases Defined (Redline Version) P146 VIII.a 1 | P a g e ORDINANCE NO. 24 SERIES OF 2017 AN ORDINANCE AMENDING SECTION 23.04.010 OF THE CITY OF ASPEN MUNICIPAL CODE PERTAINING TO SALES AND USE TAX DEFINITIONS. WHEREAS, in Senate Joint Resolution No. 14-038, the Colorado General Assembly asked the Colorado Municipal League to revive the tax simplification project from the 1990s to address current systemic problems identified by the retail business community regarding local sales and use tax definitions and exemptions; and WHEREAS, City Council has determined that the standard tax definitions project is a major collaborative sales tax simplification initiative by Colorado’s home rule municipalities that locally collect their sales tax and the retail business community; and WHEREAS, City Council has determined that the City will cooperate in furtherance of a statewide goal to have all locally collecting municipalities agree to use standard definitions in their sales and use tax codes; and WHEREAS, City Council has determined that maintaining the local collection of sales and use taxes for the City is of paramount importance to the continued financial strength of the City; and WHEREAS, City Council acknowledges that the retail business community desires better uniformity and simplicity when operating in multiple cities; and WHEREAS, City Council has determined that the City can simplify the tax code definitions without sacrificing revenue; and WHEREAS, City Council has determined that it can modify the City’s sales and use tax inclusions and exemptions in compliance with the Taxpayer Bill of Rights by remaining revenue neutral. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. Section 23.04.010, Words and phrases defined, of the City of Aspen Municipal Code is hereby amended to read as follows: Sec. 23.04.010. Words and phrases defined. When not clearly indicated otherwise by the context, the following words and phrases as used in this Title, shall have the following meanings: Aircraft means a device that is used or intended to be used for flight in the air. P147 VIII.a 2 | P a g e Aircraft Part means any tangible personal property that is intended to be permanently affixed or attached as a component part of an aircraft. Airline Company means any operator who engages in the carriage by aircraft of persons or property as a common carrier for compensation or hire, or the carriage of mail, or any aircraft operator who operates regularly between two (2) or more points and publishes a flight schedule. Airline Company shall not include operators whose aircraft are all certified for a gross takeoff weight of twelve thousand five hundred (12,500) pounds or less and who do not engage in scheduled service or mail carriage service. Auction means any sale where tangible personal property is sold by an auctioneer who is either the agent for the owner of such property or is in fact the owner thereof. Automotive vehicle means any vehicle or device in, upon, or by which any person or property is or may be transported or drawn upon a public highway, or any device used or designed for aviation or flight in the air. This term includes, but is not limited to, motor vehicles, trailers, semi- trailers and mobile homes. This term shall not include devices moved by human power or used exclusively upon stationary rails or tracks. Business means all activities engaged in or caused to be engaged in with the object of gain, benefit or advantage, direct or indirect. It shall include any business, trade, occupation, profession or calling of any kind and all other kinds of activities and matters, together with all devices, machines, vehicles and appurtenances used therein, any of which are conducted for private profit or benefit, either directly or indirectly, within the City. Business License means an Aspen City sales tax license required pursuant to Section 23.32.030. Candy means a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruit, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces. Candy does not include any preparation containing flour, products that require refrigeration or marijuana infused products. Casual sale means an individual, single or incidental transaction which in itself does not constitute the carrying on of business. Carrier Access services means the services furnished by a local exchange company to its customers who provide telecommunications services, which allow them to provide such telecommunications services. Charitable organization means any entity which: (1) Has obtained tax exempt status as a charitable not-for-profit organization pursuant to Section 501(c)(3) of the Internal Revenue Code; and (2) Is a religious organization or an organization which exclusively, and in a manner consistent with existing laws and for the benefit of an indefinite number of persons, freely and voluntarily ministers to the physical, mental or spiritual needs of persons and which thereby lessens the burdens of government. City means the municipality of Aspen. Code means the Aspen Municipal Code. Coins means monetized bullion or other forms of money manufactured from gold, silver, platinum, palladium or other such metals now, in the future or heretofore designated as a medium of exchange under the laws of this State, the United States or any foreign nation. P148 VIII.a 3 | P a g e Coin operated device means any device operated by coins or currency. Collection Costs shall include, but is not limited to, all costs of audit, assessment, bank fees, hearings, execution, lien filing, distraint, litigation, locksmith fees, auction fees and costs, prosecution and attorney fees. Commercial packaging materials means containers, labels and/or cases, that become part of the finished product to the purchaser, used by or sold to a person engaged in manufacturing, compounding, wholesaling, jobbing, retailing, packaging, distributing or bottling for sale, profit or use, and is not returnable to said person for reuse. Commercial Packaging Materials does not include Commercial Shipping Materials. Commercial Shipping Materials means materials that do not become part of the finished product to the purchaser which are used exclusively in the shipping process. Commercial Shipping Materials include but are not limited to containers, labels, pallets, banding material and fasteners, shipping cases, shrink wrap, bubble wrap or other forms of binding, padding or protection. Community Organization means a nonprofit entity organized and operated exclusively for the promotion of social welfare, primarily engaged in promoting the common good and general welfare of the community, so long as: (1) No part of the net earnings of which inures to the benefit of any private shareholder or individual; (2) No substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation; and (3) Which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office. Construction equipment means any equipment including mobile machinery and mobile equipment, which is used to erect, install, alter, demolish, repair, remodel, or otherwise make improvements to any real property, building, structure or infrastructure. Construction materials means tangible personal property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a completed structure or project including public and private improvements. This term includes, but is not limited to such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal site lighting, steel, stone stucco, tile, trees, shrubs and other landscaping materials, wallboard, wall coping, wallpaper, weather stripping, wire netting and screen, water mains and meters and wood preserver. The above materials, when used for forms, or other items which do not remain as an integral or inseparable part of a completed structure or project, are not construction materials. Consumer means any individual person, or person engaged in business in the City, who uses, stores, distributes or otherwise consumes in the City, tangible personal property or taxable services purchased from sources inside or outside the City. Contractor means any person who shall build, construct, reconstruct, alter, expand, modify, or improve any building, dwelling, structure, infrastructure, or other improvement to real property for another party pursuant to an agreement. For purposes of this definition, Contractor also includes subcontractor. Cover Charge means a charge paid to a club or similar entertainment establishment which may, or may not, entitle the patron paying such charge to receive tangible personal property, such as food and/or P149 VIII.a 4 | P a g e beverages. Data Processing Equipment means any equipment or system of equipment used in the storage, manipulation, management, display, reception or transmission of information. Digital Product means an electronic product including, but not limited to: (1) “digital images” which means works that include, but are not limited to, the following that are generally recognized in the ordinary and usual sense as “photographs,” “logos,” “cartoons,” or “drawings.” (2) “digital audio-visual works” which means a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any, (3) “digital audio works” which means works that result from the fixation of a series of musical, spoken, or other sounds, including ringtones. For purposes of the definition of “digital audio works”, “ringtones” means digitized sound files that are downloaded onto a device and that may be used to alert the customer with respect to a communication, and (4) “digital books” which means works that are generally recognized in the ordinary and usual sense as “books”. Distribution means the act of distributing any article of tangible personal property for use or consumption, which may include, but not be limited to, the distribution of advertising gifts, shoppers’ guides, catalogs, directories, or other property given as prizes, premiums, or for goodwill or in conjunction with the sales of other commodities or services. Dual Residency means those situations including, but not limited to, where a person maintains a residence, place of business or business presence, both within and outside the City. A person shall be deemed to have established a legitimate residence, place of business or business presence outside of the City for purposes of dual residency if the person has a physical structure owned, leased or rented by such person which is designated by street number or road location outside of the City, has within it a telephone or telephones in the name of such person and conducts business operations on a regular basis at such location in a manner that includes the type of business activities for which the business (person), as defined in this Code, is organized. Dwelling Unit means a building or any portion of a building designed for occupancy as complete, independent living quarters for one (1) or more persons, having direct access from the outside of the building or through a common hall and having living, sleeping, kitchen and sanitary facilities for the exclusive use of the occupants. Employee means any person working for pay under the control and direction of an employer. Engaged in business in the City means performing or providing services, or selling, leasing, renting, delivering or installing tangible personal property for storage, use or consumption within the City. This term includes, but is not limited to, any one of the following activities by a person: (1) Directly, indirectly or by a subsidiary, maintains a building, store, office, salesroom, warehouse or other place of business within the City; (2) Sends one (1) or more employees, agents or commissioned sales persons into the City to solicit business or to install, assemble, repair, service or assist in the use of its products or for demonstration or other reasons; (3) Maintains one (1) or more employees, agents or commissioned sales persons on duty at a location within the City; P150 VIII.a 5 | P a g e (4) Owns, leases, rents or otherwise exercises control over real or personal property within the City; or Makes more than one (1) delivery into the City within a twelve (12) month period. Factory Built Housing means a manufactured home or modular home. Finance Director means the Finance Director of the City or such other person designated by the City. The term shall also include such person's designee. Food For Home Consumption means food for domestic home consumption as defined in 7 U.S.C. sec. 2012 (k) (2014), as amended, for purposes of the supplemental nutrition assistance program, or any successor program, as defined in 7 U.S.C. sec. 2012 (t), as amended; except that "food" does not include carbonated water marketed in containers; chewing gum; seeds and plants to grow foods; prepared salads and salad bars; packaged and unpackaged cold sandwiches; deli trays; and hot or cold beverages served in unsealed containers or cups that are vended by or through machines or non-coin-operated coin-collecting food and snack devices on behalf of a vendor. Garage Sales means sales of tangible personal property, except automotive vehicles, occurring at the residence of the seller, where the property to be sold was originally purchased for use by members of the household where such sale is being conducted. The term includes, but is not limited to, yard sales, estate sales, and block sales. Gross sales means the total amount received in money, credit, property or other consideration valued in money for all sales, leases or rentals of tangible personal property or services. Internet Access Services means services that provide or enable computer access by multiple users to the Internet, but shall not include that portion of packaged or bundled services providing phone or television cable services when the package or bundle includes the sale of Internet Access Services. Internet Subscription Service means software programs, systems, data and applications available online through rental, lease or subscription, that provide information and services including, but not limited to, data linking, data research, data analysis, data filtering or record compiling. Linen Services means services involving the provision and cleaning of linens, including but not limited to rags, uniforms, coveralls and diapers. License officer means the Finance Director of the City. Lodging services means the furnishing of rooms or accommodations by any person, partnership, association, corporation, estate or any other combination of individuals by whatever name known to a person who, for a consideration, uses, possesses or has the right to use or possess any room in a hotel, inn, bed and breakfast residence, apartment hotel, lodging house, motor hotel, guest house, guest ranch, trailer coach, mobile home, auto camp, trailer court and park or similar establishment, for a period of less than thirty (30) days under any concession, permit, right of access, license to use or other agreement or otherwise. Machinery means any apparatus consisting of interrelated parts used to produce an article of tangible personal property. The term includes both the basic unit and any adjunct or attachment necessary for the basic unit to accomplish its intended function. Manufactured Home means any pre-constructed building unit or combination of pre-constructed building units, without motive power, where such unit or units are manufactured in a factory or at a location other than the residential site of the completed home, which is designed and commonly used for occupancy by persons for residential purposes, in either temporary or permanent locations, and which unit or units are not licensed as a vehicle. P151 VIII.a 6 | P a g e Manufacturing means the operation or performance of an integrated series of operations which places a product, article, substance, commodity, or other tangible personal property in a form, composition or character different from that in which it was acquired whether for sale or for use by a manufacturer. The change in form, composition or character must result in a different product having a distinctive name, character or use from the raw or prepared materials. Medical Marijuana means marijuana acquired, possessed, cultivated, manufactured, delivered, transported, supplied, sold, or dispensed to a person who qualifies as a patient with a debilitating medical condition(s) under Article XVIII, Section 14, of the Colorado Constitution, and which person holds a valid “registry identification card” issued by the State of Colorado pursuant to Colorado Constitution, Article XVIII, Section 14. Mobile Machinery and Self-Propelled Construction Equipment means those vehicles, self-propelled or otherwise, which are not designed primarily for the transportation of persons or cargo over the public highways, and those motor vehicles which may have originally been designed for the transportation of persons or cargo over the public highways, and those motor vehicles which may have originally been designed for the transportation of persons or cargo but which have been redesigned or modified by the mounting thereon of special equipment or machinery, and which may be only incidentally operated or moved over the public highways. This definition includes but is not limited to wheeled vehicles commonly used in the construction, maintenance, and repair of roadways, the drilling of wells, and the digging of ditches. Modular Home means any structure that consists of multiple sections fabricated, formed or assembled in manufacturing facilities for installation and assembly at the building site, and is constructed to the building codes adopted by the State Division of Housing, created in Section 24-32-706, C.R.S., and is designed to be installed on a permanent foundation. Motor Fuel means gasoline, casing head or natural gasoline, benzol, benzene and naphtha, gasohol and any other liquid prepared, advertised, offered for sale, sold for use or used or commercially usable in internal combustion engines for the generation of power for the propulsion of motor vehicles upon the public highways. The term does not include fuel used for the propulsion or drawing of aircraft or railroad cars or railroad locomotives. Medical supplies means insulin in all its forms dispensed pursuant to the direction of a licensed physician; glucose useable for treatment of insulin reactions; urine and blood-testing kits and materials; insulin measuring and injecting devices, including hypodermic syringes and needles; prosthetic devices; wheelchairs and hospital beds; drugs or materials when furnished by a doctor as part of professional services provided to a patient; and corrective eyeglasses, contact lenses or hearing aids. Mini storage or mini-warehouse means a building or group of buildings containing individual storage units rented or leased to individuals for the storage of merchandise, commodities or private property. Municipality. Any municipal corporation or similar form of local government including any city, town or city and county, whether organized pursuant to charter, constitution or statute, in Colorado or another state, except counties, school districts or special districts and the city. Newspaper. A publication, printed on newsprint, intended for general circulation and published regularly at short intervals, containing information and editorials on current events and news of general interest. The term newspaper does not include: magazines, trade publications or journals, credit bulletins, advertising inserts, circulars, directories, maps, racing programs, reprints, newspaper clipping and mailing services or listings, publications that include an updating or revision service, books nor pocket editions of books. Online Garage Sales means sales of tangible personal property, except automotive vehicles, occurring P152 VIII.a 7 | P a g e online, where the property to be sold was originally purchased for use by the seller or members of the seller’s household. Open to the public. Any place, event or activity where the admission or access to, which is open to members of the public, whether upon payment of a charge or fee or not. Person. Any individual, firm, partnership, joint venture, corporation, estate or trust, receiver, trustee, assignee, lessee or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit. Photovoltaic System means a power system designed to supply usable solar power by means of photovoltaics, a method of converting solar energy into direct current electricity using semiconducting materials that create voltage or electric current in a material upon exposure to light. It consists of an arrangement of several components, including solar panels to absorb and convert sunlight into electricity, a solar inverter to change the electric current from DC to AC, as well as mounting, cabling, metering systems and other electrical accessories to set up a working system. Precious Metal Bullion means any precious metal, including but not limited to, gold, silver, platinum, palladium, that has been put through a process of refining and is in such a state or condition that its value depends upon its precious metal content and not its form. Prepress Preparation Material means all materials used by those in the printing industry including, but not limited to, airbrush color photos, color keys, dies, engravings, light-sensitive film, light-sensitive paper, masking materials, Mylar, plates, proofing materials, tape, transparencies, and veloxes, which are used by printers in the preparation of customer specific layouts or in plates used to fill customers' printing orders, which are eventually sold to a customer, either in their original purchase form or in an altered form, and for which a sales or use tax is demonstrably collected from the printer's customer, if applicable, either separately from the printed materials or as part of the inclusive price therefor. Materials sold to a printer which are used by the printer for the printer's own purposes, and are not sold, either directly or in an altered form, to a customer, are not included within this definition. Preprinted Newspaper Supplements shall mean inserts, attachments or supplements circulated in newspapers that: (1) are primarily devoted to advertising; and (2) the distribution, insertion, or attachment of which is commonly paid for by the advertiser. Pre-written computer programs. Systems, programs or application programs that are not written specifically for the user. Prescription drugs for animals. Drugs dispensed in accordance with any order in writing, dated and signed by a practitioner, or given orally by a practitioner specifying the animal for which the medicine or drug is offered and directions, if any, to be placed on the label. Price or purchase price. (1) The price to the consumer, exclusive of any direct tax imposed by the federal government or by this Chapter and, in the case of all retail sales involving the exchange of property, also exclusive of the fair market value of the property exchanged at the same time and place of the exchange, if: a. Such exchanged property is to be sold thereafter in the usual course of the retailer's business; or b. Such exchanged property is a vehicle and is exchanged for another vehicle and P153 VIII.a 8 | P a g e both vehicles are subject to licensing, registration or certification under the laws of this State, including but not limited to vehicles operating upon public highways, off-highway recreation vehicles, watercraft and aircraft. Any money or other consideration paid over and above the value of the exchanged property is subject to tax. (2) The terms price or purchase price include: a. The amount of money received or due in cash and credits. b. Property at fair market value taken in exchange but not for resale in the usual course of the retailer's business. c. Any consideration valued in money, such as trading stamps or coupons whereby the manufacturer or someone else reimburses the retailer for part of the purchase price and other media of exchange. d. The total price charged on credit sales, including finance charges which are not separately stated. An amount charged as interest on the unpaid balance of the purchase price is not part of the purchase price, unless the amount added to the purchase price is included in the principal amount of a promissory note; except the interest or carrying charge set out separately from the unpaid balance of the purchase price on the face of the note is not part of the purchase price. An amount charged for insurance on the property sold and separately stated is not part of the purchase price. e. Installation, delivery and wheeling-in charges included in the purchase price and not separately stated. f. Transportation and other charges to effect delivery of tangible personal property to the purchaser. g. Indirect federal manufacturers' excise taxes, such as taxes on automobiles, tires and floor stock. h. The gross purchase price of articles sold after manufacturing or after having been made to order, including the gross value of all materials used, labor and service performed and the profit thereon. (3) The terms price or purchase price do not include: a. Any sales or use tax imposed by the State or by any political subdivision thereof. b. The fair market value of property exchanged if such property is to be sold thereafter in the retailer's usual course of business. This is not limited to exchanges in Colorado. Out-of-state trade-ins are an allowable adjustment to the purchase price. c. Discounts from the original price if such discount and the corresponding decrease in sales tax due are actually passed on to the purchaser. An anticipated discount to be allowed for payment on or before a given date is not an allowable adjustment to the price in reporting gross sales. Private Communications Services means telecommunications services furnished to a subscriber, which entitles the subscriber to exclusive or priority use of any communication channel or groups of channels, or to the exclusive or priority use of any interstate inter-communications system for the subscriber's stations. Prosthetic devices for Humans. Any artificial limb, part, device or appliance for human use which aids or replaces a bodily function; is designed, manufactured, altered or adjusted to fit a particular individual; and is prescribed by a licensed practitioner of the healing arts. Prosthetic devices include but are not P154 VIII.a 9 | P a g e limited to prescribed auditory, ophthalmic or ocular, cardiac, dental, or orthopedic devices or appliances, oxygen concentrators and oxygen with related accessories. Public. Any individual, firm, co-partnership, joint venture, corporation, society, club, league, association, joint stock company, estate or trust, receiver, trustee, assignee, lessee or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit and the plural as well as the singular number. Purchase or sale. (1) The acquisition for any consideration by any person of tangible personal property or taxable services that are purchased, leased, rented, sold, used, stored, distributed or consumed, but excludes a bonafide gift of property or services. These terms include capital leases, installment and credit sales and property and services acquired by: a. Transfer, either conditionally or absolutely, of title or possession, or both, to tangible personal property. b. A lease, lease-purchase agreement, rental, or grant of a license, including royalty agreements; to use tangible personal property or taxable services. The use of coin- operated devices, except coin-operated telephones, which do not vend articles of tangible personal property, shall be considered short term rentals of tangible personal property. c. Performance of taxable services; or d. Barter or exchange for other property or services including coupons. (2) The terms purchase and sale do not include: a. A division of partnership assets among the partners according to their interests in the partnership; b. The formation of a corporation by the owners of a business and the transfer of their business assets to the corporation in exchange for all of the corporation’s outstanding stock, except qualifying shares, in proportion to the assets contributed; c. The transfer of assets of shareholders in the formation or dissolution of professional corporations; d. The dissolution and the pro rata distribution of a corporation's assets to its stockholders; e. A transfer of a partnership interest; f. The transfer in a reorganization qualifying under Section 368(a)(1) of the Internal Revenue Code of 1954, as amended; g. The formation of a partnership by the transfer of assets to the partnership or transfers to a partnership in exchange for proportionate interests in the partnership; h. The repossession of personal property by a chattel mortgage holder or foreclosure by a lienholder; i. The transfer of assets from a parent corporation to a subsidiary corporation or corporations which are owned at least eighty percent (80%) by the parent corporation, which transfer is solely in exchange for stock or securities of the subsidiary corporation; P155 VIII.a 10 | P a g e j. The transfer of assets from a subsidiary corporation or corporations which are owned at least eighty percent (80%) by the parent corporation to a parent corporation or to another subsidiary which is owned at least eighty percent (80%) by the parent corporation, which transfer is solely in exchange for stock or securities of the parent corporation or the subsidiary which received the assets; or k. The transfer of assets between parent and closely held subsidiary corporations, or between subsidiary corporations closely held by the same parent corporation or between corporations which are owned by the same shareholders in identical percentage of stock ownership amounts, computed on a share-by-share basis, when a tax imposed by this Title was paid by the transferor corporation at the time it acquired such assets, except to the extent that there is an increase in the fair market value of such assets resulting from the manufacturing, fabricating or physical changing of the assets by the transfer or corporation. To such an extent any transfer referred to in this Subsection (k) shall constitute a sale. For the purpose of this Subsection (k), a closely held subsidiary corporation is one in which the parent corporation owns stock possessing at least eighty percent (80%) of the total combined voting power of all classes of stock entitled to vote and owns at least eighty percent (80%) of the total number of shares of all other classes of stock. Recreation Services means all services relating to athletic or entertainment participation events and/or activities including but not limited to pool, golf, billiards, skating, tennis, bowling, health/athletic club memberships, coin operated amusement devices, video games and video club memberships. Renewable Energy means any energy resource that is naturally regenerated over a short time scale and derived directly from the sun (such as thermal, photochemical, and photoelectric), indirectly from the sun (such as wind, hydropower, and photosynthetic energy stored in biomass), or from other natural movements and mechanisms of the environment (such as geothermal and tidal energy). Renewable Energy does not include energy resources derived from fossil fuels, waste products from fossil sources, or waste products from inorganic sources. Retail sales. All sales made within the City except wholesale sales. Retailer. Any person selling, leasing or renting tangible personal property or service at retail. Retailer shall include any: (1) Auctioneer; (2) Salesperson, representative, peddler or canvasser who makes sales as a direct or indirect agent of, or obtains such property or services sold from, a dealer, distributor, supervisor or employer. (3) Charitable organization or governmental entity which makes sales of tangible personal property to the public, notwithstanding the fact that the merchandise sold may have been acquired by gift or donation or that the proceeds are to be used for charitable or governmental purposes. Retailer-Contractor means a contractor who is also a retailer of building supplies, construction materials, or other tangible personal property, and purchases, manufactures, or fabricates such property for sale (which may include installation), repair work, time and materials jobs, and/or lump sum contracts. Return. The sales tax reporting form used to report sales tax. Sale that Benefits a Colorado School means a sale of a commodity or service from which all proceeds of the sale, less only the actual cost of the commodity or service to a person or entity as described in this Code, are donated to a school or a school-approved student organization. P156 VIII.a 11 | P a g e Sales tax. The tax to be collected and remitted by a retailer on sales taxes under this Title. School means a public or nonpublic school for students in kindergarten through 12th grade or any portion thereof. Security System Services means electronic alarm and/or monitoring services. Such term does not include non-electronic security services such as consulting or human or guard dog patrol services. Soft Drink means a nonalcoholic beverage that contains natural or artificial sweeteners. “Soft drink” does not include beverages that contain milk or milk products, soy, rice, or similar milk substitutes, or greater than fifty percent of vegetable or fruit juice by volume. Software Program means a sequence of instructions that can be measured, interpreted and executed by an electronic device (e.g. a computer, tablets, smart phones) regardless of the means by which it is accessed or the medium of conveyance. Software program includes: (1) Custom software program, which is a software program prepared to the special order or specifications of a single customer; (2) Pre-written software program, which is a software program prepared for sale or license to multiple users, and not to the special order or specifications of a single customer. Pre- written software is commonly referred to as “canned,” “off-the-shelf (“COTS”),” “mass produced” or “standardized;” (3) Modified software, which means pre-written software that is altered or enhanced by someone other than the purchaser to create a program for a particular user; and (4) The generic term “software,” “software application,” as well as “updates,” “upgrades,” “patches,” “user exits,” and any items which add or extend functionality to existing software programs. Software as a Service means software that is rented, leased or subscribed to from a provider and used at the consumer’s location, including but not limited to applications, systems or programs. Software License Fee means a fee charged for the right to use, access, or maintain software programs. Software Maintenance Agreement means an agreement, typically with a software provider, that may include (1) provisions to maintain the right to use the software; (2) provisions for software upgrades including code updates, version updates, code fix modifications, enhancements, and added or new functional capabilities loaded into existing software, or (3) technical support Solar Thermal Systems means a system whose primary purpose is to use energy from the sun to produce heat or cold for: (1) Heating or cooling a residential or commercial building; (2) Heating or cooling water; or (3) Any industrial, commercial, or manufacturing process Sound System Services means the provision of broadcast or pre-recorded audio programming to a building or portion thereof. Such term does not include installation of sound systems where the entire system becomes the property of the building owner or the sound system service is for presentation of live performances. Special Sales Event means any sales event which includes more than three (3) Vendors taking place at a single location for a limited period of time not to exceed seven (7) consecutive days. P157 VIII.a 12 | P a g e State. The State of Colorado. Storage means any keeping or retention of, or exercise dominion or control over, or possession of, for any length of time, tangible personal property not while in transit but on a stand still basis for future use when leased, rented or purchased at retail from sources either within or without the City from any person or vendor. Student means any person enrolled in a school. Tangible Personal Property means personal property that can be one or more of the following: seen, weighed, measured, felt, touched, stored, transported, exchanged, or that is in any other manner perceptible to the senses. Tax. The sales tax due from a retailer. Tax Deficiency or Deficiency means any amount of tax, penalty, interest, or other fee that is not reported and/or not paid on or before the date that any return or payment of the tax is required under the terms of this Code. Taxable sales. Gross sales less any exemptions and deductions specified in this Title. Taxable services. Services subject to the tax pursuant to this Title. Taxpayer. Any person obligated to collect and/or pay tax under the terms of this Title. Telecommunications services. The transmission of any two-way interactive electromagnetic communications including, but not limited to voice, image, data and any other information, by the use of any means, but not limited to wire, cable, fiber optical cable, microwave, radio wave or any combinations of such media. This term includes, but is not limited to basic local exchange telephone service, toll telephone service and teletypewriter service, including but not limited to residential and business service, directory assistance, cellular mobile telephone, or telecommunication service, specialized mobile radio and two-way pagers and paging service, including any form of mobile two-way communication. This term does not include separately stated non-transmission services which constitute computer-processing applications used to act on the information to be transmitted. Television & Entertainment Services means audio or visual content, that can be transmitted electronically by any means, for which a charge is imposed. Therapeutic device. Devices, appliances or related accessories that are sold to correct or treat a human physical disability or surgically created abnormality; if such device, appliance or related accessory has a retail value of more than one hundred dollars ($100.00), it must be sold in accordance with a written recommendation from a licensed doctor to qualify as a therapeutic device for purposes of this Code. Toll Free Telecommunications Service means a Telecommunications Service that allows a caller to dial a number without incurring an additional charge for the call. Total tax liability. The total of all tax, penalties or interest owed by a taxpayer and shall include sales tax collected in excess of such tax computed on total sales. Transient/temporary vendor. Any person who engages in a temporary business of selling and delivering goods within the City and who, in furtherance of such purpose, leases, uses or occupies any physical space within the City for the exhibition and sale of such goods for a period of thirty days or less. Use means the exercise, for any length of time by any person within the City of any right, power or dominion over tangible personal property or services when rented, leased or purchased at retail from sources either within or without the City from any person or vendor or used in the performance of a P158 VIII.a 13 | P a g e contract in the City whether such tangible personal property is owned or not owned by the taxpayer. Use also includes the withdrawal of items from inventory for consumption. Wholesale sales mean sales to licensed retailers, jobbers, dealers or wholesalers for resale. Sales by wholesalers to consumers are not wholesale sales. Sales by wholesalers to non-licensed retailers are not wholesale sales. Wholesaler. Any person selling to retailers, jobbers, dealers or other wholesalers, for resale and not for storage, use, consumption or distribution. (Code 1971, § 21-1.1;§ 3; Ord. No. 11-2000, § 1) Section 2: Any scrivener’s errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Section 3: Effect Upon Existing Litigation. This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4: Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5: Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty (30) days following final passage. Section 66: Public Notice A public hearing on this ordinance shall be held on the 9th day of October, 2017, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, a minimum of seven days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the , 2017. Attest: _____________________________ ____________________________ Linda Manning, City Clerk Steven Skadron, Mayor FINALLY, adopted, passed and approved this , 2017. Attest: _____________________________ ____________________________ Linda Manning, City Clerk Steven Skadron, Mayor Approved as to form: _____________________________ James R. True, City Attorney P159 VIII.a 14 | P a g e P160 VIII.a 1 | P a g e Chapter 23.04 GENERAL PROVISIONS1, 2, 3 1 Editor's note—Ord. No. 26-1992, repealed the provisions of former Art. III, relative to licenses and tax for retail sales and services and enacted new Arts. I and II [Ch. 23.04 through 23.32] to read as herein set out subsequently renumbering former Art. II as Art. III [Ch. 23.36]. The provisions of former Art. III derived from Ord. No. 16-1970; Ord. No. 28-1970; and Ord. No. 15-A-1972. 2 Charter reference—Taxation, Art. XII. 3 Cross reference—Administration generally, Title 2; licenses and permits generally, Title 14. Sec. 23.04.010. Words and phrases defined. When not clearly indicated otherwise by the context, the following words and phrases as used in this Title, shall have the following meanings: Aircraft means a device that is used or intended to be used for flight in the air. Aircraft Part means any tangible personal property that is intended to be permanently affixed or attached as a component part of an aircraft. Airline Company means any operator who engages in the carriage by aircraft of persons or property as a common carrier for compensation or hire, or the carriage of mail, or any aircraft operator who operates regularly between two (2) or more points and publishes a flight schedule. Airline Company shall not include operators whose aircraft are all certified for a gross takeoff weight of twelve thousand five hundred (12,500) pounds or less and who do not engage in scheduled service or mail carriage service. Auction means any sale where tangible personal property is sold by an auctioneer who is either the agent for the owner of such property or is in fact the owner thereof. Automotive vehicle means any vehicle or device in, upon, or by which any person or property is or may be transported or drawn upon a public highway, or any device used or designed for aviation or flight in the air. This term includes, but is not limited to, motor vehicles, trailers, semi- trailers and mobile homes. This term shall not include devices moved by human power or used exclusively upon stationary rails or tracks. Business means all activities engaged in or caused to be engaged in with the object of gain, benefit or advantage, direct or indirect. It shall include any business, trade, occupation, profession or calling of any kind and all other kinds of activities and matters, together with all devices, machines, vehicles and appurtenances used therein, any of which are conducted for private profit or benefit, either directly or indirectly, within the City. Business License means an Aspen City sales tax license required pursuant to Section 23.32.030. Candy means a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruit, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces. Candy does not include any preparation containing flour, products that require refrigeration or marijuana infused products. Casual sale means an individual, single or incidental transaction which in itself does not constitute the carrying on of business. Carrier Access services means the services furnished by a local exchange company to its customers who provide telecommunications services, which allow them to provide such telecommunications services. Charitable organization means any entity which: (1) Has obtained tax exempt status as a charitable not-for-profit organization pursuant to P161 VIII.a 2 | P a g e Section 501(c)(3) of the Internal Revenue Code; and (2) Is a religious organization or an organization which exclusively, and in a manner consistent with existing laws and for the benefit of an indefinite number of persons, freely and voluntarily ministers to the physical, mental or spiritual needs of persons and which thereby lessens the burdens of government. City means the municipality of Aspen. Code means the Aspen Municipal Code. Coins means monetized bullion or other forms of money manufactured from gold, silver, platinum, palladium or other such metals now, in the future or heretofore designated as a medium of exchange under the laws of this State, the United States or any foreign nation. Coin operated device means any device operated by coins or currency. Collection Costs shall include, but is not limited to, all costs of audit, assessment, bank fees, hearings, execution, lien filing, distraint, litigation, locksmith fees, auction fees and costs, prosecution and attorney fees. Commercial packaging materials means containers, labels and/or cases, that become part of the finished product to the purchaser, used by or sold to a person engaged in manufacturing, compounding, wholesaling, jobbing, retailing, packaging, distributing or bottling for sale, profit or use, and is not returnable to said person for reuse. Commercial Packaging Materials does not include Commercial Shipping Materials. Commercial Shipping Materials means materials that do not become part of the finished product to the purchaser which are used exclusively in the shipping process. Commercial Shipping Materials include but are not limited to containers, labels, pallets, banding material and fasteners, shipping cases, shrink wrap, bubble wrap or other forms of binding, padding or protection. Community Organization means a nonprofit entity organized and operated exclusively for the promotion of social welfare, primarily engaged in promoting the common good and general welfare of the community, so long as: (1) No part of the net earnings of which inures to the benefit of any private shareholder or individual; (2) No substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation; and (3) Which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office. Construction equipment means any equipment including mobile machinery and mobile equipment, which is used to erect, install, alter, demolish, repair, remodel, or otherwise make improvements to any real property, building, structure or infrastructure. Construction materials means tangible personal property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a completed structure or project including public and private improvements. This term includes, but is not limited to such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal site lighting, steel, stone stucco, tile, trees, shrubs and other landscaping materials, wallboard, wall P162 VIII.a 3 | P a g e coping, wallpaper, weather stripping, wire netting and screen, water mains and meters and wood preserver. The above materials, when used for forms, or other items which do not remain as an integral or inseparable part of a completed structure or project, are not construction materials. Consumer means any individual person, or person engaged in business in the City, who uses, stores, distributes or otherwise consumes in the City, tangible personal property or taxable services purchased from sources inside or outside the City. Contractor means any person who shall build, construct, reconstruct, alter, expand, modify, or improve any building, dwelling, structure, infrastructure, or other improvement to real property for another party pursuant to an agreement. For purposes of this definition, Contractor also includes subcontractor. Cover Charge means a charge paid to a club or similar entertainment establishment which may, or may not, entitle the patron paying such charge to receive tangible personal property, such as food and/or beverages. Data Processing Equipment means any equipment or system of equipment used in the storage, manipulation, management, display, reception or transmission of information. Digital Product means an electronic product including, but not limited to: (1) “digital images” which means works that include, but are not limited to, the following that are generally recognized in the ordinary and usual sense as “photographs,” “logos,” “cartoons,” or “drawings.” (2) “digital audio-visual works” which means a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any, (3) “digital audio works” which means works that result from the fixation of a series of musical, spoken, or other sounds, including ringtones. For purposes of the definition of “digital audio works”, “ringtones” means digitized sound files that are downloaded onto a device and that may be used to alert the customer with respect to a communication, and (4) “digital books” which means works that are generally recognized in the ordinary and usual sense as “books”. Distribution means the act of distributing any article of tangible personal property for use or consumption, which may include, but not be limited to, the distribution of advertising gifts, shoppers guides, catalogs, directories, or other property given as prizes, premiums, or for goodwill or in conjunction with the sales of other commodities or services. Dual Residency means those situations including, but not limited to, where a person maintains a residence, place of business or business presence, both within and outside the City. A person shall be deemed to have established a legitimate residence, place of business or business presence outside of the City for purposes of dual residency if the person has a physical structure owned, leased or rented by such person which is designated by street number or road location outside of the City, has within it a telephone or telephones in the name of such person and conducts business operations on a regular basis at such location in a manner that includes the type of business activities for which the business (person), as defined in this Code, is organized. Dwelling Unit means a building or any portion of a building designed for occupancy as complete, independent living quarters for one (1) or more persons, having direct access from the outside of the building or through a common hall and having living, sleeping, kitchen and sanitary facilities for the exclusive use of the occupants. Employee means any person working for pay under the control and direction of an employer. P163 VIII.a 4 | P a g e Engaged in business in the City means performing or providing services, or selling, leasing, renting, delivering or installing tangible personal property for storage, use or consumption within the City. This term includes, but is not limited to, any one of the following activities by a person: (1) Directly, indirectly or by a subsidiary, maintains a building, store, office, salesroom, warehouse or other place of business within the City; (2) Sends one (1) or more employees, agents or commissioned sales persons into the City to solicit business or to install, assemble, repair, service or assist in the use of its products or for demonstration or other reasons; (3) Maintains one (1) or more employees, agents or commissioned sales persons on duty at a location within the City; (4) Owns, leases, rents or otherwise exercises control over real or personal property within the City; or Makes more than one (1) delivery into the City within a twelve (12) month period. Factory Built Housing means a manufactured home or modular home. Finance Director means the Finance Director of the City or such other person designated by the City. The term shall also include such person's designee. Food For Home Consumption means food for domestic home consumption as defined in 7 U.S.C. sec. 2012 (k) (2014), as amended, for purposes of the supplemental nutrition assistance program, or any successor program, as defined in 7 U.S.C. sec. 2012 (t), as amended; except that "food" does not include carbonated water marketed in containers; chewing gum; seeds and plants to grow foods; prepared salads and salad bars; packaged and unpackaged cold sandwiches; deli trays; and hot or cold beverages served in unsealed containers or cups that are vended by or through machines or non-coin-operated coin-collecting food and snack devices on behalf of a vendor. Garage Sales means sales of tangible personal property, except automotive vehicles, occurring at the residence of the seller, where the property to be sold was originally purchased for use by members of the household where such sale is being conducted. The term includes, but is not limited to, yard sales, estate sales, and block sales. Gross sales means the total amount received in money, credit, property or other consideration valued in money for all sales, leases or rentals of tangible personal property or services. Internet Access Services means services that provide or enable computer access by multiple users to the Internet, but shall not include that portion of packaged or bundled services providing phone or television cable services when the package or bundle includes the sale of Internet Access Services. Internet Subscription Service means software programs, systems, data and applications available online through rental, lease or subscription, that provide information and services including, but not limited to, data linking, data research, data analysis, data filtering or record compiling. Linen Services means services involving the provision and cleaning of linens, including but not limited to rags, uniforms, coveralls and diapers. License officer means the Finance Director of the City. Lodging services means the furnishing of rooms or accommodations by any person, partnership, association, corporation, estate or any other combination of individuals by whatever name known to a person who, for a consideration, uses, possesses or has the right to use or possess any room in a hotel, inn, P164 VIII.a 5 | P a g e bed and breakfast residence, apartment hotel, lodging house, motor hotel, guest house, guest ranch, trailer coach, mobile home, auto camp, trailer court and park or similar establishment, for a period of less than thirty (30) days under any concession, permit, right of access, license to use or other agreement or otherwise. Machinery means any apparatus consisting of interrelated parts used to produce an article of tangible personal property. The term includes both the basic unit and any adjunct or attachment necessary for the basic unit to accomplish its intended function. Manufactured Home means any pre-constructed building unit or combination of pre-constructed building units, without motive power, where such unit or units are manufactured in a factory or at a location other than the residential site of the completed home, which is designed and commonly used for occupancy by persons for residential purposes, in either temporary or permanent locations, and which unit or units are not licensed as a vehicle. Manufacturing means the operation or performance of an integrated series of operations which places a product, article, substance, commodity, or other tangible personal property in a form, composition or character different from that in which it was acquired whether for sale or for use by a manufacturer. The change in form, composition or character must result in a different product having a distinctive name, character or use from the raw or prepared materials. Medical Marijuana means marijuana acquired, possessed, cultivated, manufactured, delivered, transported, supplied, sold, or dispensed to a person who qualifies as a patient with a debilitating medical condition(s) under Article XVIII, Section 14, of the Colorado Constitution, and which person holds a valid “registry identification card” issued by the State of Colorado pursuant to Colorado Constitution, Article XVIII, Section 14. Mobile Machinery and Self-Propelled Construction Equipment means those vehicles, self-propelled or otherwise, which are not designed primarily for the transportation of persons or cargo over the public highways, and those motor vehicles which may have originally been designed for the transportation of persons or cargo over the public highways, and those motor vehicles which may have originally been designed for the transportation of persons or cargo but which have been redesigned or modified by the mounting thereon of special equipment or machinery, and which may be only incidentally operated or moved over the public highways. This definition includes but is not limited to wheeled vehicles commonly used in the construction, maintenance, and repair of roadways, the drilling of wells, and the digging of ditches. Modular Home means any structure that consists of multiple sections fabricated, formed or assembled in manufacturing facilities for installation and assembly at the building site, and is constructed to the building codes adopted by the State Division of Housing, created in Section 24-32-706, C.R.S., and is designed to be installed on a permanent foundation. Motor Fuel means gasoline, casing head or natural gasoline, benzol, benzene and naphtha, gasohol and any other liquid prepared, advertised, offered for sale, sold for use or used or commercially usable in internal combustion engines for the generation of power for the propulsion of motor vehicles upon the public highways. The term does not include fuel used for the propulsion or drawing of aircraft or railroad cars or railroad locomotives. Medical supplies means insulin in all its forms dispensed pursuant to the direction of a licensed physician; glucose useable for treatment of insulin reactions; urine and blood-testing kits and materials; insulin measuring and injecting devices, including hypodermic syringes and needles; prosthetic devices; wheelchairs and hospital beds; drugs or materials when furnished by a doctor as part of professional services provided to a patient; and corrective eyeglasses, contact lenses or hearing aids. P165 VIII.a 6 | P a g e Mini storage or mini-warehouse means a building or group of buildings containing individual storage units rented or leased to individuals for the storage of merchandise, commodities or private property. Municipality. Any municipal corporation or similar form of local government including any city, town or city and county, whether organized pursuant to charter, constitution or statute, in Colorado or another state, except counties, school districts or special districts and the city. Newspaper. A publication, printed on newsprint, intended for general circulation and published regularly at short intervals, containing information and editorials on current events and news of general interest. The term newspaper does not include: magazines, trade publications or journals, credit bulletins, advertising inserts, circulars, directories, maps, racing programs, reprints, newspaper clipping and mailing services or listings, publications that include an updating or revision service, books nor pocket editions of books. Online Garage Sales means sales of tangible personal property, except automotive vehicles, occurring online, where the property to be sold was originally purchased for use by the seller or members of the seller’s household. Open to the public. Any place, event or activity where the admission or access to, which is open to members of the public, whether upon payment of a charge or fee or not.Person. Any individual, firm, partnership, joint venture, corporation, estate or trust, receiver, trustee, assignee, lessee or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit. Photovoltaic System means a power system designed to supply usable solar power by means of photovoltaics, a method of converting solar energy into direct current electricity using semiconducting materials that create voltage or electric current in a material upon exposure to light. It consists of an arrangement of several components, including solar panels to absorb and convert sunlight into electricity, a solar inverter to change the electric current from DC to AC, as well as mounting, cabling, metering systems and other electrical accessories to set up a working system. Precious Metal Bullion means any precious metal, including but not limited to, gold, silver, platinum, palladium, that has been put through a process of refining and is in such a state or condition that its value depends upon its precious metal content and not its form. Prepress Preparation Material means all materials used by those in the printing industry including, but not limited to, airbrush color photos, color keys, dies, engravings, light-sensitive film, light-sensitive paper, masking materials, Mylar, plates, proofing materials, tape, transparencies, and veloxes, which are used by printers in the preparation of customer specific layouts or in plates used to fill customers' printing orders, which are eventually sold to a customer, either in their original purchase form or in an altered form, and for which a sales or use tax is demonstrably collected from the printer's customer, if applicable, either separately from the printed materials or as part of the inclusive price therefor. Materials sold to a printer which are used by the printer for the printer's own purposes, and are not sold, either directly or in an altered form, to a customer, are not included within this definition. Preprinted Newspaper Supplements shall mean inserts, attachments or supplements circulated in newspapers that: (1) are primarily devoted to advertising; and (2) the distribution, insertion, or attachment of which is commonly paid for by the advertiser. Pre-written computer programs. Systems, programs or application programs that are not written specifically for the user. Prescription drugs for animals. Drugs dispensed in accordance with any order in writing, dated and P166 VIII.a 7 | P a g e signed by a practitioner, or given orally by a practitioner specifying the animal for which the medicine or drug is offered and directions, if any, to be placed on the label. Price or purchase price. (1) The price to the consumer, exclusive of any direct tax imposed by the federal government or by this Chapter and, in the case of all retail sales involving the exchange of property, also exclusive of the fair market value of the property exchanged at the same time and place of the exchange, if: a. Such exchanged property is to be sold thereafter in the usual course of the retailer's business; or b. Such exchanged property is a vehicle and is exchanged for another vehicle and both vehicles are subject to licensing, registration or certification under the laws of this State, including but not limited to vehicles operating upon public highways, off-highway recreation vehicles, watercraft and aircraft. Any money or other consideration paid over and above the value of the exchanged property is subject to tax. (2) The terms price or purchase price include: a. The amount of money received or due in cash and credits. b. Property at fair market value taken in exchange but not for resale in the usual course of the retailer's business. c. Any consideration valued in money, such as trading stamps or coupons whereby the manufacturer or someone else reimburses the retailer for part of the purchase price and other media of exchange. d. The total price charged on credit sales, including finance charges which are not separately stated. An amount charged as interest on the unpaid balance of the purchase price is not part of the purchase price, unless the amount added to the purchase price is included in the principal amount of a promissory note; except the interest or carrying charge set out separately from the unpaid balance of the purchase price on the face of the note is not part of the purchase price. An amount charged for insurance on the property sold and separately stated is not part of the purchase price. e. Installation, delivery and wheeling-in charges included in the purchase price and not separately stated. f. Transportation and other charges to effect delivery of tangible personal property to the purchaser. g. Indirect federal manufacturers' excise taxes, such as taxes on automobiles, tires and floor stock. h. The gross purchase price of articles sold after manufacturing or after having been made to order, including the gross value of all materials used, labor and service performed and the profit thereon. (3) The terms price or purchase price do not include: a. Any sales or use tax imposed by the State or by any political subdivision thereof. b. The fair market value of property exchanged if such property is to be sold thereafter in the retailer's usual course of business. This is not limited to exchanges in P167 VIII.a 8 | P a g e Colorado. Out-of-state trade-ins are an allowable adjustment to the purchase price. c. Discounts from the original price if such discount and the corresponding decrease in sales tax due are actually passed on to the purchaser. An anticipated discount to be allowed for payment on or before a given date is not an allowable adjustment to the price in reporting gross sales. Private Communications Services means telecommunications services furnished to a subscriber, which entitles the subscriber to exclusive or priority use of any communication channel or groups of channels, or to the exclusive or priority use of any interstate inter-communications system for the subscriber's stations. Prosthetic devices for Humans. Any artificial limb, part, device or appliance for human use which aids or replaces a bodily function; is designed, manufactured, altered or adjusted to fit a particular individual; and is prescribed by a licensed practitioner of the healing arts. Prosthetic devices include but are not limited to prescribed auditory, ophthalmic or ocular, cardiac, dental, or orthopedic devices or appliances, oxygen concentrators and oxygen with related accessories. Public. Any individual, firm, copartnership, joint venture, corporation, society, club, league, association, joint stock company, estate or trust, receiver, trustee, assignee, lessee or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit and the plural as well as the singular number. Purchase or sale. (1) The acquisition for any consideration by any person of tangible personal property or taxable services that are purchased, leased, rented, sold, used, stored, distributed or consumed, but excludes a bonafide gift of property or services. These terms include capital leases, installment and credit sales and property and services acquired by: a. Transfer, either conditionally or absolutely, of title or possession, or both, to tangible personal property. b. A lease, lease-purchase agreement, rental, or grant of a license, including royalty agreements; to use tangible personal property or taxable services. The use of coin- operated devices, except coin-operated telephones, which do not vend articles of tangible personal property, shall be considered short term rentals of tangible personal property. c. Performance of taxable services; or d. Barter or exchange for other property or services including coupons. (2) The terms purchase and sale do not include: a. A division of partnership assets among the partners according to their interests in the partnership; b. The formation of a corporation by the owners of a business and the transfer of their business assets to the corporation in exchange for all of the corporation’s outstanding stock, except qualifying shares, in proportion to the assets contributed; c. The transfer of assets of shareholders in the formation or dissolution of professional corporations; d. The dissolution and the pro rata distribution of a corporation's assets to its stockholders; e. A transfer of a partnership interest; P168 VIII.a 9 | P a g e f. The transfer in a reorganization qualifying under Section 368(a)(1) of the Internal Revenue Code of 1954, as amended; g. The formation of a partnership by the transfer of assets to the partnership or transfers to a partnership in exchange for proportionate interests in the partnership; h. The repossession of personal property by a chattel mortgage holder or foreclosure by a lienholder; i. The transfer of assets from a parent corporation to a subsidiary corporation or corporations which are owned at least eighty percent (80%) by the parent corporation, which transfer is solely in exchange for stock or securities of the subsidiary corporation; j. The transfer of assets from a subsidiary corporation or corporations which are owned at least eighty percent (80%) by the parent corporation to a parent corporation or to another subsidiary which is owned at least eighty percent (80%) by the parent corporation, which transfer is solely in exchange for stock or securities of the parent corporation or the subsidiary which received the assets; or k. The transfer of assets between parent and closely held subsidiary corporations, or between subsidiary corporations closely held by the same parent corporation or between corporations which are owned by the same shareholders in identical percentage of stock ownership amounts, computed on a share-by-share basis, when a tax imposed by this Title was paid by the transferor corporation at the time it acquired such assets, except to the extent that there is an increase in the fair market value of such assets resulting from the manufacturing, fabricating or physical changing of the assets by the transfer or corporation. To such an extent any transfer referred to in this Subsection (k) shall constitute a sale. For the purpose of this Subsection (k), a closely held subsidiary corporation is one in which the parent corporation owns stock possessing at least eighty percent (80%) of the total combined voting power of all classes of stock entitled to vote and owns at least eighty percent (80%) of the total number of shares of all other classes of stock. Recreation Services means all services relating to athletic or entertainment participation events and/or activities including but not limited to pool, golf, billiards, skating, tennis, bowling, health/athletic club memberships, coin operated amusement devices, video games and video club memberships. Renewable Energy means any energy resource that is naturally regenerated over a short time scale and derived directly from the sun (such as thermal, photochemical, and photoelectric), indirectly from the sun (such as wind, hydropower, and photosynthetic energy stored in biomass), or from other natural movements and mechanisms of the environment (such as geothermal and tidal energy). Renewable Energy does not include energy resources derived from fossil fuels, waste products from fossil sources, or waste products from inorganic sources. Retail sales. All sales made within the City except wholesale sales. Retailer. Any person selling, leasing or renting tangible personal property or service at retail. Retailer shall include any: (1) Auctioneer; (2) Salesperson, representative, peddler or canvasser who makes sales as a direct or indirect agent of, or obtains such property or services sold from, a dealer, distributor, supervisor or employer. (3) Charitable organization or governmental entity which makes sales of tangible P169 VIII.a 10 | P a g e personal property to the public, notwithstanding the fact that the merchandise sold may have been acquired by gift or donation or that the proceeds are to be used for charitable or governmental purposes. Retailer-Contractor means a contractor who is also a retailer of building supplies, construction materials, or other tangible personal property, and purchases, manufactures, or fabricates such property for sale (which may include installation), repair work, time and materials jobs, and/or lump sum contracts. Return. The sales tax reporting form used to report sales tax. Sale that Benefits a Colorado School means a sale of a commodity or service from which all proceeds of the sale, less only the actual cost of the commodity or service to a person or entity as described in this Code, are donated to a school or a school-approved student organization. Sales tax. The tax to be collected and remitted by a retailer on sales taxes under this Title. School means a public or nonpublic school for students in kindergarten through 12th grade or any portion thereof. Security System Services means electronic alarm and/or monitoring services. Such term does not include non-electronic security services such as consulting or human or guard dog patrol services. Soft Drink means a nonalcoholic beverage that contains natural or artificial sweeteners. “Soft drink” does not include beverages that contain milk or milk products, soy, rice, or similar milk substitutes, or greater than fifty percent of vegetable or fruit juice by volume. Software Program means a sequence of instructions that can be measured, interpreted and executed by an electronic device (e.g. a computer, tablets, smart phones) regardless of the means by which it is accessed or the medium of conveyance. Software program includes: (1) Custom software program, which is a software program prepared to the special order or specifications of a single customer; (2) Pre-written software program, which is a software program prepared for sale or license to multiple users, and not to the special order or specifications of a single customer. Pre- written software is commonly referred to as “canned,” “off-the-shelf (“COTS”),” “mass produced” or “standardized;” (3) Modified software, which means pre-written software that is altered or enhanced by someone other than the purchaser to create a program for a particular user; and (4) The generic term “software,” “software application,” as well as “updates,” “upgrades,” “patches,” “user exits,” and any items which add or extend functionality to existing software programs. Software as a Service means software that is rented, leased or subscribed to from a provider and used at the consumer’s location, including but not limited to applications, systems or programs. Software License Fee means a fee charged for the right to use, access, or maintain software programs. Software Maintenance Agreement means an agreement, typically with a software provider, that may include (1) provisions to maintain the right to use the software; (2) provisions for software upgrades including code updates, version updates, code fix modifications, enhancements, and added or new functional capabilities loaded into existing software, or (3) technical support P170 VIII.a 11 | P a g e Solar Thermal Systems means a system whose primary purpose is to use energy from the sun to produce heat or cold for: (1) Heating or cooling a residential or commercial building; (2) Heating or cooling water; or (3) Any industrial, commercial, or manufacturing process Sound System Services means the provision of broadcast or pre-recorded audio programming to a building or portion thereof. Such term does not include installation of sound systems where the entire system becomes the property of the building owner or the sound system service is for presentation of live performances. Special Sales Event means any sales event which includes more than three (3) Vendors taking place at a single location for a limited period of time not to exceed seven (7) consecutive days. State. The State of Colorado. Storage means any keeping or retention of, or exercise dominion or control over, or possession of, for any length of time, tangible personal property not while in transit but on a stand still basis for future use when leased, rented or purchased at retail from sources either within or without the City from any person or vendor. Student means any person enrolled in a school. Tangible Personal Property means personal property that can be one or more of the following: seen, weighed, measured, felt, touched, stored, transported, exchanged, or that is in any other manner perceptible to the senses. Tax. The sales tax due from a retailer. Tax Deficiency or Deficiency means any amount of tax, penalty, interest, or other fee that is not reported and/or not paid on or before the date that any return or payment of the tax is required under the terms of this Code. Taxable sales. Gross sales less any exemptions and deductions specified in this Title. Taxable services. Services subject to the tax pursuant to this Title. Taxpayer. Any person obligated to collect and/or pay tax under the terms of this Title. Telecommunications services. The transmission of any two-way interactive electromagnetic communications including, but not limited to voice, image, data and any other information, by the use of any means, but not limited to wire, cable, fiber optical cable, microwave, radio wave or any combinations of such media. This term includes, but is not limited to basic local exchange telephone service, toll telephone service and teletypewriter service, including but not limited to residential and business service, directory assistance, cellular mobile telephone, or telecommunication service, specialized mobile radio and two-way pagers and paging service, including any form of mobile two-way communication. This term does not include separately stated nontransmission services which constitute computer-processing applications used to act on the information to be transmitted. Television & Entertainment Services means audio or visual content, that can be transmitted electronically by any means, for which a charge is imposed. Therapeutic device. Devices, appliances or related accessories that are sold to correct or treat a human physical disability or surgically created abnormality; if such device, appliance or related accessory has a retail value of more than one hundred dollars ($100.00), it must be sold in accordance with a written P171 VIII.a 12 | P a g e recommendation from a licensed doctor to qualify as a therapeutic device for purposes of this Code. Toll Free Telecommunications Service means a Telecommunications Service that allows a caller to dial a number without incurring an additional charge for the call. Total tax liability. The total of all tax, penalties or interest owed by a taxpayer and shall include sales tax collected in excess of such tax computed on total sales. Transient/temporary vendor. Any person who engages in a temporary business of selling and delivering goods within the City and who, in furtherance of such purpose, leases, uses or occupies any physical space within the City for the exhibition and sale of such goods for a period of thirty days or less. Use means the exercise, for any length of time by any person within the City of any right, power or dominion over tangible personal property or services when rented, leased or purchased at retail from sources either within or without the City from any person or vendor or used in the performance of a contract in the City whether such tangible personal property is owned or not owned by the taxpayer. Use also includes the withdrawal of items from inventory for consumption. Wholesale sales mean sales to licensed retailers, jobbers, dealers or wholesalers for resale. Sales by wholesalers to consumers are not wholesale sales. Sales by wholesalers to non-licensed retailers are not wholesale sales. Wholesaler. Any person selling to retailers, jobbers, dealers or other wholesalers, for resale and not for storage, use, consumption or distribution. (Code 1971, § 21-1.1;§ 3; Ord. No. 11-2000, § 1) P172 VIII.a 1 MEMORANDUM TO: Mayor Skadron and City Council FROM: Amy Simon, Historic Preservation Officer THRU: Jessica Garrow, Community Development Director RE: 119 Neale Avenue- First Reading of Ordinance #24, Series of 2016, Transferable Development Rights DATE: September 25, 2017 APPLICANT: 119 Neale Ave, LLC, Jeffrey Shoaf, Registered Agent. PARCEL ID: 2737-073-53-003. ADDRESS: 119 Neale Avenue, Lot 1, Benedict Cabin Subdivision, City and Townsite of Aspen, Colorado. A photo of the parcel as viewed from Neale Avenue appears below. ZONING: R-15, Moderate Density Residential. SUMMARY: 119 Neale Avenue is a lot that was created in 2012 as a result of a Historic Landmark Lot Split. To the south of the subject parcel is the other half of the subdivision, 117 Neale Avenue. 117 Neale Avenue contains the historic resource, an 1880s era log cabin, that is the basis for the designation and preservation benefits available to both sites. The applicant is requesting three (3) TDRs be severed from the development rights currently available to the property. LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approvals from City Council: • Transferable Development Rights– (Chapter 26.535.070) for the creation of three (3) TDRs. Council has the final decision-making authority. BACKGROUND: In 2015, the owner of 119 Neale Avenue applied to amend one of the conditions of the 2012 subdivision approval that affects his property. The amendment would allow a duplex, rather than a single family home at 119 Neale, a use which complies with underlying zoning, but which was specifically not permitted by Council at the time of subdivision. The applicant also asked to convert some unbuilt floor area into Transferable P173 VIII.b 2 Development Rights, to be constructed elsewhere in Aspen. This program is available only to landmarked properties. Council conducted a First and Second Reading of the request in Spring 2015. Minutes from Second Reading are attached. The review process was tabled in May 2015 after the applicant stated that the house was being used as a duplex, contrary to approvals. Council was concerned by this information as well as some public comment questioning the property boundaries. Progress on these topics was made following the Council hearing and the applicant asked to restart the discussion. First Reading of the Ordinance was repeated on August 22, 2016. Second Reading was scheduled for September 26, 2016, however on the day of the hearing staff received a complex letter of objection from a neighbor two parcels to the south of the subject site. With staff and the applicant unable to address the letter in time for the hearing a continuance to November 14th was requested. Leading up to the November 14th meeting, the applicant hired new representation, Haas Land Planning, and indicated that they wish to withdraw the duplex request and proceed with TDRs only. A hearing was held, at which time Council continued to express concerns about a possible illegal duplex unit on the site. Council tabled the Ordinance and directed staff to actively pursue enforcement. The City filed a Municipal Court complaint and commenced prosecution against the owner of 119 Neale Avenue, Jeff Shoaf, for violating Ordinance #2, 2012 (the subdivision ordinance). Mr. Shoaf plead not guilty and a trial to the court was held on July 26, 2017. On July 31, the Municipal Court Judge found Mr. Shoaf not guilty of violating Ordinance #2 on the grounds that the property does not meet the land use code definition of duplex and is considered a single family home as defined in the land use code. The judge did reprimand Mr. Shoaf for an apparent history of misleading the City on the use of the property and ordered that he must allow the City to inspect the property up to 6 times in the next year with 24 hours’ notice to ensure compliance with the land use code. No further enforcement action is currently planned, as the property was found to be in compliance with use as a single family home. Because the property is in compliance, this request can proceed. STAFF EVALUATION: Detailed findings for the TDR request can be found in Exhibit A. The property, due to its historic designation, is eligible for the creation of TDRs if surplus floor area is available. The applicant wishes to create three TDRs, removing 750 square feet of floor area from 119 Neale Avenue. Given previous public comment about the property boundaries, in particular the status of a 785 square foot area of 119 Neale that was acquired by Quit Claim, staff has analyzed this TDR request excluding that disputed area from calculations of development rights. Staff is not making a judgement about the parcel ownership as it is out of the purview of this specific application, as even with this portion of the lot excluded, the property is eligible for up to three (3) TDRs. P174 VIII.b 3 According to City Council Ordinance #2, Series of 2012, the property is allowed a maximum floor area of 4,200 square feet. To the extent that the existing development represents less than that, the owner may apply to sever Transferable Development Rights in increments of 250 square feet of floor area. A table indicating all approved TDRs within the City is attached as Exhibit I. Staff has taken a careful look at the development rights available for this property, including asking the applicant to revisit the steep slopes on the fathering site that must be deducted from floor area calculations. It has been determined that the slope impact is slightly larger than was represented during the 2012 subdivision. Staff and the applicant have agreed on corrected numbers. In addition, as stated above, staff is discounting the disputed Quit Claim parcel on the north end of the site. Viewing the original parcel as a 15,017 square foot lot and deducting 3,394 square feet of lot area due to steep slopes, the original parcel net lot area is 11,623 square feet. The floor area permitted to be split by the two lots, 117 Neale and 119 Neale, based on R-15 zoning, plus a 500 square foot bonus that was granted in 2012 by HPC, is 5,183 square feet. 1,133 square feet was assigned to the historic house at 117 Neale, leaving 4,050 square feet for 119 Neale. The existing structure has been calculated to be 3,265 square feet, allowing for three (3) TDRs (750 square feet) with a minimal amount of floor area left for future expansion (4,050 -3,265= 785-750 square feet in TDRS = 35 square feet available for future development on the lot). The application demonstrates that, taking a conservative approach to the lot area, there is unused FAR available that can be used for the creation of up to three (3) TDRs. Given that the review criteria are based on available floor area on a parcel, staff recommends that the parcel be granted up to three (3) TDRs. RECOMMENDATION: Staff recommends Council approve the creation of TDRs based on the fact that there is available square footage for TDRs to be created from the parcel. RECOMMENDED MOTION: “I move to approve Ordinance #24, Series of 2016, on First Reading, and to schedule Second Reading for October 23rd, 2017.” CITY MANAGER COMMENTS: ________________________________________________ ______________________________________________________________________________ Exhibits: Ordinance #24, Series of 2016 A. TDR Criteria B. Application C. Proof of Ownership and Right to Apply D. Subdivision Ordinance, Ordinance #2, Series of 2012 E. Council minutes, Second Reading of Ordinance #2, Series of 2012, February 27, 2012 F. Subdivision Plat P175 VIII.b 4 G. Council minutes, Second Reading of Ordinance #24, Series of 2016, Subdivision Amendment and TDRs, May 5, 2015 H. Council minutes, Second Reading of Ordinance #24, Series of 2016, TDRs, November 14, 2016 I. Record of all TDRs P176 VIII.b Ordinance 24, Series 2016 119 Neale Ave TDRs Page 1 of 3 ORDINANCE #24 (Series of 2016) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO CREATING THREE TRANSFERABLE DEVELOPMENT RIGHTS FROM THE PROPERTY LOCATED AT 119 NEALE AVENUE, LOT 1, BENEDICT CABIN SUBDIVISION, CITY AND TOWNSITE OF ASPEN, COLORADO PARCEL ID: 2737-073-53-003 WHEREAS, 119 Neale Avenue, LLC, Jeffrey Shoaf, registered agent, requested approval to create and sever three Transferable Development Rights (TDRs) at 119 Neale Avenue; and WHEREAS, Section 26.535.070 of the Aspen Municipal Code establishes the process for creation for Transferable Development Rights, which shall be approved if City Council determines sufficient evidence exists that the property meets the established review criteria; and WHEREAS, Amy Simon, Historic Preservation Officer, in her staff report to City Council, performed an analysis of the application, found that the review standards were met, and recommended approval. City Council held a First Reading of this Ordinance on August 22, 2016 and a Second Reading on November 14, 2016, at which time Council tabled the Ordinance and directed staff to address allegations of a zoning violation on the subject property. This was pursued through a Municipal Court complaint which resulted in a finding of no violation. In taking this Ordinance back up, Council repeated First and Second Readings; and WHEREAS, the City Council finds that the proposal meets or exceeds all applicable development standards and that the approval of the development proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section 1: Transferable Development Rights Pursuant to the findings set forth above, the City Council does hereby authorize the grant of three (3) Transferable Development Rights from 119 Neale Avenue, Lot 1, Benedict Cabin Subdivision, City and Townsite of Aspen, Colorado with the following conditions: 1. Upon satisfaction of all requirements, the city and the applicant shall establish a date on which the respective Historic TDR Certificates shall be validated and issued by the City and a deed restriction on the property shall be accepted by the City and filed with the Pitkin County Clerk and Recorder. The property owner may decide when and if, as warranted by the TDR market, the development rights will be converted into certificates and sold. P177 VIII.b Ordinance 24, Series 2016 119 Neale Ave TDRs Page 2 of 3 2. On the mutually agreed upon date, the Mayor of the City of Aspen shall execute and deliver the applicable number of Historic TDR Certificates to the property owner and the property owner shall execute and deliver a deed restriction lessening the available development right of the Sending Site, 119 Neale Avenue, Lot 1, Benedict Cabin Subdivision, City and Townsite of Aspen, Colorado, by 250 square feet per TDR together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder’s Office. Section 2: 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. Section3: Existing Litigation This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 4: Vested Rights The development approvals granted herein shall constitute a site-specific development plan vested for a period of three (3) years from the date of issuance of a development order. However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 180 days of the effective date of the development order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of Section 26.104.050 (Void permits). Zoning that is not part of the approved site-specific development plan shall not result in the creation of a vested property right. No later than fourteen (14) days following final approval of all requisite reviews necessary to obtain a development order as set forth in this Ordinance, the City Clerk shall cause to be published in a newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to this Title. Such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a site specific development plan, and the creation of a vested property right, valid for a period of three (3) years, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: 119 Neale Avenue. Nothing in this approval shall exempt the development order from subsequent reviews and approvals required by this approval of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with this approval. P178 VIII.b Ordinance 24, Series 2016 119 Neale Ave TDRs Page 3 of 3 The approval granted hereby shall be subject to all rights of referendum and judicial review; the period of time permitted by law for the exercise of such rights shall not begin to run until the date of publication of the notice of final development approval as required under Section 26.304.070(A). The rights of referendum shall be limited as set forth in the Colorado Constitution and the Aspen Home Rule Charter. Section 5: Public Hearing A public hearing on the ordinance was held on the 23rd day of October, 2017, in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 25th day of September, 2017. ______________________ Steven Skadron, Mayor ATTEST: _____________________________ Linda Manning, City Clerk FINALLY, adopted, passed and approved this ___ day of _________, 2017. _______________________ Steven Skadron, Mayor ATTEST: _______________________ Linda Manning, City Clerk APPROVED AS TO FORM: __________________________ James R. True, City Attorney P179 VIII.b 119 Neale Ave TDRs Exhibit A, Staff Findings Page 1 of 3 EXHIBIT A TDR REVIEW CRITERIA 26.535.070. Review criteria for establishment of a historic transferable development right. A historic TDR certificate may be established by the Mayor if the City Council, pursuant to adoption of an ordinance, finds all the following standards met: A. The sending site is a historic landmark on which the development of a single-family or duplex residence is a permitted use, pursuant to Chapter 26.710, Zone Districts. Properties on which such development is a conditional use shall not be eligible. Staff Finding: 119 Neale Avenue is a landmarked property. Single family and duplex uses are permitted in the zone district where 119 Neale Avenue is located. Staff finds this criterion is met. B. It is demonstrated that the sending site has permitted unbuilt development rights, for either a single-family or duplex home, equaling or exceeding two hundred and fifty (250) square feet of floor area multiplied by the number of historic TDR certificates requested. Staff Finding: According to City Council Ordinance #2, Series of 2012, the property is allowed a maximum floor area of 4,200 square feet. To the extent that the existing development represents less than that, the owner may apply to sever Transferable Development Rights in increments of 250 square feet of floor area. A table indicating all approved TDRs within the City is attached as Exhibit I. Staff has taken a careful look at the development rights available for this property, including asking the applicant to revisit the steep slopes on the fathering site that must be deducted from floor area calculations. It has been determined that the slope impact is slightly larger than was represented during the 2012 subdivision. Staff and the applicant have agreed on corrected numbers. In addition, as stated above staff is discounting the disputed Quit Claim parcel on the north end of the site. Viewing the original parcel as a 15,017 square foot lot and deducting 3,394 square feet of lot area due to steep slopes, the original parcel net lot area is 11,623 square feet. The floor area permitted to be split by the two lots, 117 Neale and 119 Neale, based on R-15 zoning, plus a 500 square foot bonus that was granted in 2012 by HPC, is 5,183 square feet. 1,133 square feet was assigned to the historic house at 117 Neale, leaving 4,050 square feet for 119 Neale. The existing structure has been calculated to be 3,265 square feet, allowing for three TDRs (750 square feet) with a minimal amount of floor area left for future expansion (4,050 -3,265= 785-750 square feet in TDRS = 35 square feet available for future development on the lot). The application demonstrates that, taking a conservative approach to the lot area, there is unused FAR available. Staff finds this criterion is met. C. It is demonstrated that the establishment of TDR certificates will not create a nonconformity. In cases where a nonconformity already exists, the action shall not increase the specific nonconformity. P180 VIII.b 119 Neale Ave TDRs Exhibit A, Staff Findings Page 2 of 3 Staff Finding: No non-conformities will be created by the establishment of TDRs. Staff finds this criterion is met. D. The analysis of unbuilt development right shall only include the actual built development, any approved development order, the allowable development right prescribed by zoning for a single-family or duplex residence, and shall not include the potential of the sending site to gain floor area bonuses, exemptions or similar potential development incentives. Staff Finding: The analysis only includes development that is by right. Staff finds this criterion is met. E. Any development order to develop floor area, beyond that remaining legally connected to the property after establishment of TDR Certificates, shall be considered null and void. Staff Finding: No such development order exists. Staff finds this criterion is not applicable. F. The proposed deed restriction permanently restricts the maximum development of the property (the sending site) to an allowable floor area not exceeding the allowance for a single-family or duplex residence minus two hundred and fifty (250) square feet of floor area multiplied by the number of historic TDR certificates established. For properties with multiple or unlimited floor areas for certain types of allowed uses, the maximum development of the property, independent of the established property use, shall be the floor area of a single-family or duplex residence (whichever is permitted) minus two hundred fifty (250) square feet of floor area multiplies by the number of historic TDR certificates established. The deed restriction shall not stipulate an absolute floor area, but shall stipulate a square footage reduction from the allowable floor area for a single-family or duplex residence, as my be amended from time to time. The sending site shall remain eligible for certain floor area incentives and/or exemptions as may be authorized by the City Land Use Code, as may be amended from time to time. The form of the deed restriction shall be acceptable to the City Attorney. Staff Finding: The deed restriction will follow the form approved by the City Attorney. Staff finds this criterion is met. G. A real estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of historic TDR certificates to the sending site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the County Clerk and Recorder's office. P181 VIII.b 119 Neale Ave TDRs Exhibit A, Staff Findings Page 3 of 3 Staff Finding: A closing will be scheduled at the conclusion of the review. Staff finds this criterion is met. H. It shall be the responsibility of the sending site property owner to provide building plans and a zoning analysis of the sending site to the satisfaction of the Community Development Director. Certain review fees may be required for the confirmation of built floor area. (Ord. 54-2003, §§ 4, 5) Staff Finding: The applicant has provided floor area analysis. Staff finds this criterion is met. P182 VIII.b P183 VIII.b P184 VIII.b October 5, 2016 Ms. Amy Simon, Historic Preservation Planner City of Aspen Community Development Department 130 South Galena Street Aspen, CO 81611 RE: 119 Neale Avenue Application for Subdivision Amendment and Transferable Development Rights (TDR) (Parcel Identification Number 2737-073-53-003) Dear Amy: As you know, I recently began working with and advising Jeffrey Shoaf (the applicant) with regard to his pending land use application. I am submitting this letter both to amend the pending requests and to address a few issues that been raised in the course of the review process to date. To begin, we hereby officially withdraw the request to amend Ordinance Number 2 (Series of 2012). The applicant no longer desires to convert his single- family dwelling unit to a duplex and, therefore, has no need to amend the old approvals. Ordinance No. 2 (the “Ordinance”) approved Historic Landmark Designation and a Historic Landmark Lot Split, with conditions. Section 2 of the Ordinance provides that the subject lot (Lot 1) is entitled to 4,200 square feet of Floor Area for a single-family house. The applicant seeks to maintain single- family residential use and comply with this condition of approval given currently applicable Land Use Code provisions but continues to seek approval to sever up to three (3) TDR --- one at a time --- and thereby limit the buildable Floor Area accordingly. The terms of Section 2 in the Ordinance are memorialized on the recorded Lot Split Plat and remain valid. The vested property rights associated with the Ordinance have, however, been expired since February 28, 2015. As such, while the approvals remain in tact and valid, they and the property, in general, have become subject to the current provisions of the Aspen Land Use Code. Since the time the Ordinance was approved, the City considered and saw fit to duly amend the Land Use Code is many ways, including but not limited to with HAAS LAND PLANNING, HAAS LAND PLANNING, LLCLLC • 420 E . MAIN STREET, SUITE 10-B • ASPEN, COLORADO • 81611 • • PHONE: (970) 925-7819 • EMAIL: MITCH@HLPASPEN.COM • P185 VIII.b 119 Neale Avenue TDR Application Page 2 regard to its definitions of “Dwelling, detached residential,” “ Dwelling, duplex,” “Dwelling unit,” and “Family.” These codified definitions are as follows: Dwelling, detached residential. A residential structure consisting of a Dwelling Unit with open yards on all sides, excluding mobile homes. Also known as a Single-Family Home or a Single-Family Residence. Dwelling, duplex. A residential building on a single lot or parcel comprised of two (2) attached Dwelling Units in either an over-and-under or side-by-side configuration having a common unpierced above-grade wall of at least one (1) story in height and ten (10) feet in length, or a common unpierced wall or floor/ceiling as applicable. Each unit in a duplex shall contain no less than twenty-five percent (25%) of the total floor area of the duplex structure. Dwelling unit. A structure or portion thereof, providing complete, independent living facilities for one or more persons, including, but not limited to, permanent provisions for living, sleeping, eating, cooking, and sanitation, and which shall not have an internal connection to any other residential or non-residential unit or use. Also known as a Dwelling or a Residence. Family. Two (2) or more persons related by blood, marriage or adoption or between whom there is a legally recognized relationship or not more than five (5) unrelated persons occupying the same dwelling unit. Before addressing the subject structure, a few points about these definitions need to be understood. First, in order for a residential building to be considered a “duplex” it must include an un-pierced demising wall or floor/ceiling of a specified minimum size between the two distinct dwelling units. There are not two distinct dwelling units in the subject structure nor does the structure contain any un-pierced demising walls or floor/ceilings of any size; therefore, the existing structure is certainly not a duplex. Whatever these definitions might have said prior to their amendment is fully irrelevant. Next, since the existing structure does, however, consist of one (not two or more) Dwelling Unit with open yards on all sides and it does not have an internal connection to any other unit or use, it is clearly a “Single-Family Residence.” Finally, the applicant and a family of three (3) persons who rent space from him occupy the single-family residence; as fewer than five (5) unrelated persons occupying the same dwelling unit, the City of Aspen has chosen to define this arrangement as a “Family.” These definitions also implicitly allow certain uses and arrangements. More specifically, there is nothing in these definitions or elsewhere in the City of Aspen Municipal Code that precludes a property owner from renting out all or part of their property and the definition of “Family” certainly implies that doing so is fully permissible. Similarly, there is nothing in these definitions or P186 VIII.b 119 Neale Avenue TDR Application Page 3 elsewhere in the Aspen Municipal Code that would preclude application for and issuance of a building permit for the installation of more than one kitchen within a single-family residence; indeed, many homes in the City of Aspen include a legitimate main kitchen and a secondary kitchen, which makes perfect sense given the allowance for renting space within a residence. The existing improvements clearly and explicitly meet the requirements of a “Dwelling, detached residential” and its occupancy complies with the limitation set forth in the definition of “Family.” Furthermore, it clearly does not qualify under the definition of “Dwelling, duplex” and the existing structure was recently and appropriately issued a valid Certificate of Occupancy from the City of Aspen, dated 12 September 2016, under the “SFR,” or single-family residential, use classification. The applicant was uninformed and, thus, incorrect when he erroneously told the City Council that he already has or operates a bandit duplex. He, in fact, had and maintains a single-family residence that is legally occupied by a “family.” There are no current or outstanding Code violations of any kind. To the extent that any violations had existed, they have been fully rectified by either the applicant’s remedial actions or the City’s decisions in amending its regulations. Accordingly, the applicant seeks only to maintain the existing, legal single-family residential use. He is not interested in installing a common un-pierced wall or ceiling/floor, nor is he interested in adding parking or otherwise intensifying his existing, long-standing and legitimate single-family residential use. He wishes to leave things as there are, which should also serve to address concerns that have been voiced by a few neighbors. As such, there is no need for or desire to amend the Ordinance to allow duplex dwellings. Should the applicant choose to add a second kitchen within his single-family dwelling, as currently allowed, he reserves the right to seek a building permit for such. The above-cited provisions of the Code provide clear, black-and-white language that the applicant and the public, in general, have every right to rely upon without any presumption of a different meaning. The applicable code language is plenty clear enough to be relied upon without “interpretation.” Had the City meant something other than what is said in the clear language, be it about the presence of kitchens or bathrooms, or anything else for that matter, the City could have easily codified its intentions and written language to address those. Instead, the public is left only with the codified language and the existing conditions at 119 Neale Avenue are fully consistent with the regulations. Similarly, the applicant certainly maintains the right to amend his proposal as provided herein. Applicants for land use entitlements amend their requests P187 VIII.b 119 Neale Avenue TDR Application Page 4 routinely and often at the direction of City staff. To hold that an applicant cannot amend his/her request would be to say that one cannot be responsive to concerns raised by staff, the public, or the elected and appointed boards or commissions without withdrawing an application and starting over again. Clearly, this is not how the land use review process should work, has ever worked or currently works. Given the foregoing, the only request that remains and that requires approval from the City Council is the designation of the subject property as a TDR sending site. The applicant continues to respectfully request that he be permitted to remove up to three (3) TDRs, one at a time, from the available development rights on his property. Per the Ordinance, the subject lot is entitled to single- family residential development of up to 4,200 square feet of Floor Area. The applicant has adequately demonstrated that his existing improvements fall well enough below this limit to allow removal of these rights without rendering the structure nonconforming, and the piecemeal removal of these rights is not only consistent with the City’s prior approvals of the same kind but also with the neighbors’ desires to see that the use of the property not be intensified from that existing. It is hoped that the provided information proves helpful in the review of Mr. Shoaf’s application. Should there be any questions or should any additional information be desired, please do not hesitate to contact me. Truly yours, Haas Land Planning, LLC Mitch Haas Owner/Manager P188 VIII.b Land Use Application Responses 26.535.070 Review criteria for establishment of a historic transferable development right 9. The sending sight is an historical property identified on the Aspen modern map. The development of a single-family or duplex residence is a permitted use, pursuant to chapter 26.710, Zone Districts 10. I have demonstrated that the sending site has permitted unbuilt development rights equal or exceeding enough to allow for up to three 250 sq. ft. of floor area TDR certificates. 11. I have demonstrated that the establishment of these three TDR certificates will not create a nonconformity. 12. As per the analysis of unbuilt development right I shall only include the actual built development for a single family or duplex residence. 13. I agree that any development order to develop floor area, beyond that remaining legally connected to the property after establishment of TDR Certificates, shall be considered null and void. 14. I agree that the proposed deed restriction permanently restricts the maximum development of the property to an allowable floor area not exceeding the allowance for a single-family or duplex residence minus 250 sq. ft. of floor area multiplied by the number of historic TDR certificates issued. 15. I am asking for a real estate closing to be scheduled where by upon satisfaction of all requirements the city shall execute and deliver my requested number of allowed historical TDR certificates. 16. I will provide as sending site property owner building plans and a zoning analysis to the satisfaction of the community development director. 17. The sale, etc., transfer or change in ownership of these TDR certificates shall be recorded with the Pitkin County Clerk and Recorder and will be reported by me to the City of Aspen Development Department within 5 days of such transfer as per all city regulations. P189 VIII.b 1 DEED RESTRICTION AND AGREEMENT FOR ESTABLISHMENT OF A HISTORIC TRANSFERABLE DEVELOPMENT RIGHT PURSUANT TO ASPEN CITY COUNCIL ORDINANCE #___ , SERIES OF 20__ THIS DEED RESTRICTION AND AGREEMENT is made and entered into this _____ day of ______________, 20__, by_________________, (hereinafter referred to as “Owner”), whose address is___________________________________, and The City of Aspen, a body politic and corporate pursuant to its Home-Rule Charter and the Constitution of the State of Colorado, acting through its City Council, (hereinafter the “City”); WITNESSETH WHEREAS, Owner owns real property more specifically described as (address and legal description______________; Parcel ID ____________, Pitkin County, Colorado, (hereinafter referred to as “Real Property”), which Real Property is designated as a Historic Site, as such are defined in the City of Aspen Land Use Code (“City Code”); and WHEREAS, Owner has submitted an affidavit, duly notarized, in compliance with Section 26.535.090.A.2 of the City Code, and supplied the necessary application materials identified in Section 26.535.090 showing compliance with the criteria set forth in Section 26.535.070 of the City Code; and WHEREAS, The Community Development Department has reviewed Owner’s application according to the review standards identified in 26.535.070 of the City Code, and has recommended approval of the application and the establishment of one (1), or the first of two (2), second of two (2), etc. approved Historic TDR Certificates as set forth herein; and WHEREAS, City Council Ordinance #____, Series of 20___ (the “Ordinance”) was approved on ___(date)__________, establishing the above referenced Historic TDR Certificates, and requiring that a Deed Restriction be recorded in real property records of Pitkin County, designating the Real Property as a Sending Site and permanently restricting the development of the Real Property (the Sending Site) to an allowable Floor Area not exceeding the allowance for a single-family residence or duplex if allowed, minus two hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates established; and WHEREAS, in consideration of the establishment of one (1), or the first of two (2), second of two (2), etc. Historic TDR Certificates pursuant to the Ordinance and City Code, Owner agrees to restrict the Real Property as set forth herein. NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, Owner and the City hereby covenant and agree as follows: 1. Development of the Real Property (the Sending Site) is hereby permanently restricted to an allowable Floor Area not exceeding the allowance for a single- family residence or duplex as otherwise permitted by the City Code on the Real P190 VIII.b 2 Property, minus any deductions resulting from previous issuance of TDR certificate(s) and minus 250 square feet, that being two hundred fifty (250) square feet of Floor Area multiplied by the one (1) Historic TDR Certificate hereby established. 2. In consideration of the foregoing, and pursuant to the City Code and the Ordinance, the City shall cause the issuance of one (1) Historic TDR Certificate, executed by the Mayor, allowing the transfer of development rights to a Receiver Site to be determined pursuant to the City Code. This Historic TDR Certificate may be sold, assigned, transferred, or conveyed. Transfer of title shall be evidenced by an assignment of ownership on the actual certificate document. Upon transfer, the new owner may request the City re-issue the certificate acknowledging the new owner. Reissuance shall not require adoption of a new ordinance. The market for such Historic TDR Certificates shall remain unrestricted and the City shall not prescribe or guarantee the monetary value of any Historic TDR Certificates. 3. This deed restriction shall not be construed to stipulate an absolute Floor Area on the Real Property, but only a square footage reduction from the allowable Floor Area, as that allowable Floor Area may be amended from time to time. 4. The Real Property (Sending Site) shall remain eligible for Floor Area incentives and/or exemptions as may be authorized by the City Code, as it may be amended from time to time. 5. This restriction may be modified only in a writing signed by both the Owner and the City. 6. Unless modified as stated above, this Agreement shall constitute a covenant running with the Real Property as a burden thereon for the benefit of, and shall be specifically enforceable by, the City Council of the City of Aspen by any appropriate legal action including, but not limited to, injunction or abatement. [SIGNATURES ON FOLLOWING PAGES] P191 VIII.b 3 IN WITNESS HEREOF, the parties hereto have executed this instrument on the date and year above first written. OWNER: By:___________________________ (property owner) STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ________ day of ______________, 20___, by ___________ Witness my hand and official seal. My commission expires:___________________ _____________________________ Notary Public P192 VIII.b 4 APPROVAL OF CITY ATTORNEY By:___________________________ James R. True, City Attorney THE CITY OF ASPEN, COLORADO a body politic and corporate pursuant to its Home-Rule Charter and the Constitution of the State of Colorado By:____________________________ Date:______________ Steve Skadron, Mayor STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this _____ day of _________________, 20__, by_____________, as Mayor of the City of Aspen, Colorado. Witness my hand and official seal. My commission expires:___________________ _____________________________ Notary Public P193 VIII.b P194VIII.b P195VIII.b Customer Distribution Our Order Number: Q62008047 Date: 01-17-2017 Property Address: 119 NEALE AVE, ASPEN, CO 81611 For Title Assistance KIM SHULTZ 533 E HOPKINS #102 ASPEN, CO 81611 970-927-0405 (phone) 970-925-6243 (fax) valleyresponse@ltgc.com PLEASE CONTACT YOUR CLOSER OR CLOSER'S ASSISTANT FOR WIRE TRANSFER INSTRUCTIONS Buyer/Borrower BUYER TO BE DETERMINED Delivered via: Electronic Mail ASPEN REALTY EXCHANGE INC Attention: JEFFREY SHOAF PO BOX 3123 ASPEN, CO 81612 970-948-3129 (phone) 970-925-4501 (work) 970-925-2577 (work fax) jeffreyshoaf@me.com Delivered via: Electronic Mail Seller/Owner 119 NEALE AVE LLC Delivered via: Electronic Mail HAAS LAND PLANNING LLC Attention: MITCH HAAS 420 E MAIN ST #10B ASPEN, CO 81611 970-925-7819 (work) mitch@hlpaspen.com Delivered via: Electronic Mail P196 VIII.b Land Title Guarantee Company Estimate of Title Fees Order Number:Q62008047 Date: 01-17-2017 Property Address:119 NEALE AVE, ASPEN, CO 81611 Buyer/Borrower:BUYER TO BE DETERMINED Seller:119 NEALE AVE LLC A COLORADO LIMITED LIABILITY COMPANY Visit Land Title's website at www.ltgc.com for directions to any of our offices. Estimate of Title Insurance Fees TBD Commitment $204.00 If Land Title Guarantee Company will be closing this transaction, the fees listed above will be collected at closing. Total $204.00 THANK YOU FOR YOUR ORDER! P197 VIII.b ALTA COMMITMENT Old Republic National Title Insurance Company Schedule A Order Number: Q62008047 Customer Ref-Loan No.: Property Address: 119 NEALE AVE, ASPEN, CO 81611 1. Effective Date: 01-06-2017 At 5:00 P.M. 2. Policy to be Issued and Proposed Insured: "TBD" Commitment $0.00 Proposed Insured: BUYER TO BE DETERMINED 3. The estate or interest in the land described or referred to in this Commitment and covered herein is: A FEE SIMPLE 4. Title to the estate or interest covered herein is at the effective date hereof vested in: 119 NEALE AVE LLC A COLORADO LIMITED LIABILITY COMPANY 5. The Land referred to in this Commitment is described as follows: LOT 1, BENEDICT CABIN SUBDIVISION EXEMPTION, ACCORDING TO THE PLAT THEREOF RECORDED JULY 23, 2012 IN PLAT BOOK 100 AT PAGE 42. COUNTY OF PITKIN, STATE OF COLORADO. Copyright 2006-2017 American Land Title Association. All Rights Reserved The use of this Form is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are prohibited. Reprinted under license from the American Land Title Association. P198 VIII.b ALTA COMMITMENT Old Republic National Title Insurance Company Schedule B-1 (Requirements) Order Number: Q62008047 The following are the requirements to be complied with: Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to-wit: 1.RELEASE OF DEED OF TRUST DATED JANUARY 04, 2008 FROM JEFFREY S. SHOAF TO THE PUBLIC TRUSTEE OF PITKIN COUNTY FOR THE USE OF COUNTRYWIDE BANK, FSB TO SECURE THE SUM OF $2,000,000.00 RECORDED JANUARY 09, 2008, UNDER RECEPTION NO. 545702. SAID DEED OF TRUST WAS ASSIGNED TO BANK OF AMERICA, N.A. IN ASSIGNMENT RECORDED JULY 05, 2012 UNDER RECEPTION NO. 590364. 2.WRITTEN INSTRUCTIONS AUTHORIZING LAND TITLE TO PREPARE A STATEMENT OF AUTHORITY FOR 119 NEALE AVE LLC A COLORADO LIMITED LIABILITY COMPANY, STATING UNDER WHICH LAWS THE ENTITY WAS CREATED, THE MAILING ADDRESS OF THE ENTITY, AND THE NAME AND POSITION OF THE PERSON(S) AUTHORIZED TO EXECUTE INSTRUMENTS CONVEYING, ENCUMBERING, OR OTHERWISE AFFECTING TITLE TO REAL PROPERTY ON BEHALF OF THE ENTITY; OR, A DULY EXECUTED AND ACKNOWLEDGED STATEMENT OF AUTHORITY SETTING FORTH THE NAME OF 119 NEALE AVE LLC A COLORADO LIMITED LIABILITY COMPANY AS A LIMITED LIABILITY COMPANY. NOTE: ANY STATEMENT OF AUTHORITY MUST BE IN COMPLIANCE WITH THE PROVISIONS OF SECTION 38-30-172, C.R.S. AND BE RECORDED WITH THE CLERK AND RECORDER. 3.WARRANTY DEED FROM 119 NEALE AVE LLC A COLORADO LIMITED LIABILITY COMPANY TO BUYER TO BE DETERMINED CONVEYING SUBJECT PROPERTY. THIS COMMITMENT IS FOR INFORMATION ONLY, AND NO POLICY WILL BE ISSUED PURSUANT HERETO. P199 VIII.b Old Republic National Title Insurance Company Schedule B-2 (Exceptions) Order Number: Q62008047 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1.Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 2.Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 3.Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 4.Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. 5.Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date of the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6.(a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the Public Records. 7.(a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water. 8.RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED AUGUST 29, 1958 IN BOOK 185 AT PAGE 69 AS RECEPTION NO. 106874. 9.TERMS, AGREEMENTS, PROVISIONS, CONDITIONS AND OBLIGATIONS OF SIDEWALK, CURB AND GUTTER IMPROVEMENT AGREEMENT RECORDED MAY 19, 1994 AS RECEPTION NO. 370198. 10.ANY AND ALL RIGHTS AS CONVEYED TO JEFFREY SHOAF IN QUIT CLAIM DEED RECORDED NOVEMBER 14, 1995 AS RECEPTION NO. 387385. 11.TERMS, AGREEMENTS, PROVISIONS, CONDITIONS AND OBLIGATIONS OF SIDEWALK EASEMENT AGREEMENT RECORDED AUGUST 21, 1998 AS RECEPTION NO. 420959. 12.EASEMENTS, RIGHTS OF WAY, AND ALL OTHER MATTERS AS SHOWN ON THE PLAT OF SHOAF'S WATERFALL SUBDIVISION RECORDED AUGUST 29, 1979 IN PLAT BOOK 8 AT PAGE 37 AND AMENDED PLAT RECORDED MARCH 22, 1982 IN PLAT BOOK 13 AT PAGE 3. 13.TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS OF RIGHT OF WAY EASEMENT RECORDED JULY 14, 1999 AS RECEPTION NO. 433395. 14.TERMS, CONDITIONS AND PROVISIONS OF RESOLUTION# 1, SERIES OF 2012 RECORDED JANUARY 27, 2012 AT RECEPTION NO. 586233. 15.TERMS, CONDITIONS AND PROVISIONS OF ORDINANCE# 2, SERIES OF 2012 RECORDED JUNE 01, P200 VIII.b Old Republic National Title Insurance Company Schedule B-2 (Exceptions) Order Number: Q62008047 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 2012 AT RECEPTION NO. 589485. 16.TERMS, CONDITIONS AND PROVISIONS OF SUBDIVISION EXEMPTION AGREEMENT RECORDED JULY 23, 2012 AT RECEPTION NO. 590765. 17.EASEMENTS, RIGHTS OF WAY AND ALL OTHER MATTERS AS DISCLOSED ON THE BENEDICT CABIN SUBDIVISION EXEMPTION PLAT RECORDED JULY 23, 2012 IN PLAT BOOK 100 AT PAGE 42. 18.RESTRICTIVE COVENANTS, WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW, AS CONTAINED IN INSTRUMENT RECORDED JULY 08, 2013, UNDER RECEPTION NO. 600940. P201 VIII.b JOINT NOTICE OF PRIVACY POLICY OF LAND TITLE GUARANTEE COMPANY, LAND TITLE GUARANTEE COMPANY - GRAND JUNCTION, LAND TITLE GUARANTEE COMPANY OF SUMMIT COUNTY LAND TITLE INSURANCE CORPORATION AND OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY This Statement is provided to you as a customer of Land Title Guarantee Company and Meridian Land Title, LLC, as agents for Land Title Insurance Corporation and Old Republic National Title Insurance Company. We want you to know that we recognize and respect your privacy expectations and the requirements of federal and state privacy laws. Information security is one of our highest priorities. We recognize that maintaining your trust and confidence is the bedrock of our business. We maintain and regularly review internal and external safeguards against unauthorized access to non-public personal information ("Personal Information"). In the course of our business, we may collect Personal Information about you from: applications or other forms we receive from you, including communications sent through TMX, our web-based transaction management system; your transactions with, or from the services being performed by, us, our affiliates, or others; a consumer reporting agency, if such information is provided to us in connection with your transaction; and the public records maintained by governmental entities that we either obtain directly from those entities, or from our affiliates and non-affiliates. Our policies regarding the protection of the confidentiality and security of your Personal Information are as follows: We restrict access to all Personal Information about you to those employees who need to know that information in order to provide products and services to you. We maintain physical, electronic and procedural safeguards that comply with federal standards to protect your Personal Information from unauthorized access or intrusion. Employees who violate our strict policies and procedures regarding privacy are subject to disciplinary action. We regularly access security standards and procedures to protect against unauthorized access to Personal Information. WE DO NOT DISCLOSE ANY PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR ANY PURPOSE THAT IS NOT PERMITTED BY LAW. Consistent with applicable privacy laws, there are some situations in which Personal Information may be disclosed. We may disclose your Personal Information when you direct or give us permission; when we are required by law to do so, for example, if we are served a subpoena; or when we suspect fraudulent or criminal activities. We also may disclose your Personal Information when otherwise permitted by applicable privacy laws such as, for example, when disclosure is needed to enforce our rights arising out of any agreement, transaction or relationship with you. Our policy regarding dispute resolution is as follows. Any controversy or claim arising out of or relating to our privacy policy, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. P202 VIII.b LAND TITLE GUARANTEE COMPANY LAND TITLE GUARANTEE COMPANY - GRAND JUNCTION DISCLOSURE STATEMENTS Note: Pursuant to CRS 10-11-122, notice is hereby given that: A)The Subject real property may be located in a special taxing district. B)A certificate of taxes due listing each taxing jurisdiction will be obtained from the county treasurer of the county in which the real property is located or that county treasurer's authorized agent unless the proposed insured provides written instructions to the contrary. (for an Owner's Policy of Title Insurance pertaining to a sale of residential real property) C)The information regarding special districts and the boundaries of such districts may be obtained from the Board of County Commissioners, the County Clerk and Recorder, or the County Assessor. Note: Effective September 1, 1997, CRS 30-10-406 requires that all documents received for recording or filing in the clerk and recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at least one half of an inch. The clerk and recorder may refuse to record or file any document that does not conform, except that, the requirement for the top margin shall not apply to documents using forms on which space is provided for recording or filing information at the top margin of the document. Note: Colorado Division of Insurance Regulations 8-1-2 requires that "Every title entity shall be responsible for all matters which appear of record prior to the time of recording whenever the title entity conducts the closing and is responsible for recording or filing of legal documents resulting from the transaction which was closed". Provided that Land Title Guarantee Company conducts the closing of the insured transaction and is responsible for recording the legal documents from the transaction, exception number 5 will not appear on the Owner's Title Policy and the Lenders Policy when issued. Note: Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B-2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following conditions: A)The land described in Schedule A of this commitment must be a single family residence which includes a condominium or townhouse unit. B)No labor or materials have been furnished by mechanics or material-men for purposes of construction on the land described in Schedule A of this Commitment within the past 6 months. C)The Company must receive an appropriate affidavit indemnifying the Company against un-filed mechanic's and material-men's liens. D)The Company must receive payment of the appropriate premium. E)If there has been construction, improvements or major repairs undertaken on the property to be purchased within six months prior to the Date of the Commitment, the requirements to obtain coverage for unrecorded liens will include: disclosure of certain construction information; financial information as to the seller, the builder and or the contractor; payment of the appropriate premium fully executed Indemnity Agreements satisfactory to the company, and, any additional requirements as may be necessary after an examination of the aforesaid information by the Company. No coverage will be given under any circumstances for labor or material for which the insured has contracted for or agreed to pay. Note: Pursuant to CRS 10-11-123, notice is hereby given: This notice applies to owner's policy commitments disclosing that a mineral estate has been severed from the surface estate, in Schedule B-2. A)That there is recorded evidence that a mineral estate has been severed, leased, or otherwise conveyed from the surface estate and that there is a substantial likelihood that a third party holds some or all interest in oil, gas, other minerals, or geothermal energy in the property; and B)That such mineral estate may include the right to enter and use the property without the surface owner's permission. Note: Pursuant to CRS 10-1-128(6)(a), It is unlawful to knowingly provide false, incomplete, or misleading facts or information to an insurance company for the purpose of defrauding or attempting to defraud the company. Penalties may include imprisonment, fines, denial of insurance, and civil damages. Any insurance company or agent of an insurance company who knowingly provides false, incomplete, or misleading facts or information to a policyholder or claimant for the purpose of defrauding or attempting to defraud the policyholder or claimant with regard to a settlement or award payable from insurance proceeds shall be reported to the Colorado Division of Insurance within the Department of Regulatory Agencies. Note: Pursuant to Colorado Division of Insurance Regulations 8-1-3, notice is hereby given of the availability of a closing protection letter for the lender, purchaser, lessee or seller in connection with this transaction. P203 VIII.b Commitment to Insure ALTA Commitment - 2006 Rev. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Minnesota corporation, (Company) for a valuable consideration, commits to issue its policy or policies of title insurance, as identified in Schedule A, in favor of the Proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest in the land described or referred to in Schedule A, upon payment of the premiums and charges and compliance with the requirements; all subject to the provisions of Schedule A and B and to the Conditions of this Commitment. This Commitment shall be effective only when the identity of the Proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A by the Company. All liability and obligation under this commitment shall cease and terminate six months after the Effective Date or when the policy or policies committed for shall issue, whichever first occurs, provided that the failure to issue such policy or policies is not the fault of the Company. CONDITIONS AND STIPULATIONS 1.The term "mortgage", when used herein, shall include deed of trust, trust deed, or other security instrument. 2.If the proposed Insured has or acquires actual knowledge of any defect, lien, encumbrance, adverse claim or other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those shown in Schedule B hereof, and shall fail to disclose such knowledge to Company in writing, the Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced by failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien, encumbrance, adverse claim or other matter, the Company at its option may amend Schedule B of this Commitment accordingly, but such amendment shall not relieve the Company from liability previously incurred pursuant to paragraph 3 of these Conditions and Stipulations. 3.Liability of the Company under this Commitment shall be only to the named proposed Insured and such parties included under the definition of Insured in the form of policy or policies committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements hereof or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment. In no event shall such liability exceed the amount stated in Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions and the Conditions and Stipulations and the Exclusions from Coverage of the form of policy or policies committed for in favor of the proposed Insured which are hereby incorporated by reference and are made a part of this Commitment except as expressly modified herein. 4.This commitment is a contract to issue one or more title insurance policies and is not an abstract of title or a report of the condition of title. Any action or actions or rights of action that the proposed Insured may have or may bring against the Company arising out of the status of the title to the estate or interest or the status of the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of this Commitment. 5.The policy to be issued contains an arbitration clause. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. You may review a copy of the arbitration rules at www.alta.org. STANDARD EXCEPTIONS In addition to the matters contained in the Conditions and Stipulations and Exclusions from Coverage above referred to, this Commitment is also subject to the following: 1.Rights or claims of parties in possession not shown by the Public Records. 2.Easements, or claims of easements, not shown by the Public Records. 3.Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey or inspection of the Land would disclose and which are not shown by the Public Records. 4.Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the Public Records. 5.Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the Public Records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. IN WITNESS WHEREOF, Old Republic National Title Insurance Company has caused its corporate name and seal to be affixed by its duly authorized officers on the date shown in Schedule A to be valid when countersigned by a validating officer or other authorized signatory. Old Republic National Title Insurance Company a Stock Company 400 Second Avenue South Minneapolis, Minnesota 55401 (612)371-1111 Issued by: Land Title Guarantee Company 3033 East First Avenue Suite 600 Denver, Colorado 80206 303-321-1880 P204 VIII.b P205 VIII.b P206 VIII.b P207 VIII.b P208 VIII.b P209 VIII.b P210 VIII.b P211 VIII.b P212 VIII.b P213 VIII.b P214 VIII.b P215 VIII.b P216 VIII.b P217 VIII.b P218 VIII.b P219 VIII.b 2,256 376.0 Legend 1: WGS_1984_Web_Mercator_Auxiliary_Sphere Feet0376.0188.00 Notes Pitkin Maps & More THIS MAP IS FOR INFORMATIONAL PURPOSES. Pitkin County GIS makes no warranty or guarantee concerning the completeness, accuracy, or reliability of the content represented. 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Vos Caudill, Pitkin County, CO ORDINANCE #2 Series of 2012) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,COLORADO APPROVING HISTORIC LANDMARK DESIGNATION AND HISTORIC LANDMARK LOT SPLIT AND CREATING TRANSFERABLE DEVELOPMENT RIGHTS FOR THE PROPERTY LOCATED AT 117/119 NEALE AVENUE, LOT 2, AMENDED SHOAF'S WATERFALL SUBDIVISION, TOGETHER WITH THE PROPERTY DESCRIBED ON THE DEED RECORDED IN BOOK 799 AT PAGE 660, CITY AND TOWNSITE OF ASPEN, COLORADO CITY AND TOWNSITE OF ASPEN CITY AND TOWNSITE OF ASPEN, COLORADO PARCEL ID: 2737-073-53-002 WHEREAS, the property owner, Jeffrey Shoaf, applied for voluntary Historic Landmark Designation, Historic Landmark Lot Split and creation of Transferable Development Rights TDRs); and WHEREAS, Section 26.415.050.030.B of the Aspen Municipal Code establishes the process for Designation and states that an application for listing on the Aspen Inventory of Historic Landmark Sites and Structures shall be approved if City Council, after a recommendation from HPC, determines sufficient evidence exists that the property meets the following criteria: 26.415.030.B. Aspen Victorian Criteria. To be eligible for designation on the Aspen Inventory of Historic Landmark Sites and Structures as an example of Aspen Victorian, an individual building, site, structure or object or a collection of buildings, sites, structures or objects must have a demonstrated quality of significance. The quality of significance of properties shall be evaluated according to the criteria described below. When designating a historic district, the majority of the contributing resources in the district shall meet the criteria described below: a. The property or district is deemed significant for its antiquity, in that it contains structures which can be documented as built during the 19th century, and b. The property or district possesses an appropriate degree of integrity of location, setting, design, materials, workmanship and association, given its age. The City Council shall adopt and make available to the public score sheets and other devices which shall be used by the Councitland Historic Preservation Commission to apply this criterion; and WHEREAS, for City Council approval of a Historic Landmark Lot Split, the application shall meet the following requirements: 26.480.030(A)(2),SUBDIVISION EXEMPTIONS,LOT SPLIT The split of a lot for the purpose of the development of one detached single-family dwelling on a lot formed by a lot split granted subsequent to November 14, 1977, where all of the following conditions are met: 117/119 Neale Avenue Ordinance #2, Series of 2012 Page 1 of 7 P230 VIII.b a) The land is not located in a subdivision approved by either the Pitkin County Board of County Commissioners or the City Council, or the land is described as a metes and bounds parcel which has not been subdivided after the adoption of subdivision regulations by the City of Aspen on March 24, 1969. This restriction shall not apply to properties listed on the Aspen Inventory of Historic Landmark Sites and Structures; and b) No more than two (2) lots are created by the lot split, both lots conform to the requirements of the underlying zone district. Any lot for which development is proposed will mitigate for affordable housing pursuant to Section 26.470.070(B); and c) The lot under consideration, or any part thereof, was not previously the subject of a subdivision exemption under the provisions of this chapter or a "lot split" exemption pursuant to Section 26.470.040(C)(1)(a): and d) A subdivision plat which meets the terms of this chapter, and conforms to the requirements of this title, is submitted and recorded in the office of the Pitkin County clerk and recorder after approval, indicating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to this chapter and growth management allocation pursuant to Chapter 26.470. e) Recordation. The subdivision exemption agreement and plat shall be recorded in the office of the Pitkin County clerk and recorder. Failure on the part of the applicant to record the plat within one hundred eighty (180) days following approval by the City Council shall render the plat invalid and reconsideration of the plat by the City Council will be required for a showing of good cause. f)In the case where an existing single-family dwelling occupies a site which is eligible for a lot split, the dwelling need not be demolished prior to application for a lot split. g) Maximum potential buildout for the two (2) parcels created by a lot split shall not exceed three (3) units, which may be composed of a duplex and a single-family home, and 26.480.030(A)(4),SUBDIVISION EXEMPTIONS,HISTORIC LANDMARK LOT SPLIT a.) The original parcel shall be a minimum of six thousand (6,000) square feet in size and be located in the R-6, R-15, R-15A, RMF or 0 Zone District. b.) The total FAR for both residences shall be established by the size of the parcel and the Zone District where the property is located. The total FAR for each lot shall be noted on the subdivision exemption plat. c.) The proposed development meets all dimensional requirements of the underlying Zone District. The variances provided in Paragraphs 26.415.120.B.1.a, b and c are 117/119 Neale Avenue Ordinance #2, Series of 2012 Page2of7 P231 VIII.b only permitted on the parcels that will contains an historic structure. The FAR bonus will be applied to the maximum FAR allowed on the original parcel, and 26.415.110(A),BENEFITS Historic landmark lot split. Properties listed on the Aspen Inventory of Historic Landmark Sites and Structures may receive an exemption from the subdivision and growth management quota system, pursuant to Sections 26.480 and 26.470, allowing owners of designated historic properties to create a second unit in addition to the historic building on their lot through the subdivision of the property. Refer to specific zone district information in Chapter 26.710 for further information. All parcels created through a Historic Landmark lot split shall retain designation on the Aspen Inventory of Historic Sites and Structures; and WHEREAS, Section 26.535.070 of the Aspen Municipal Code establishes the process for creation for Transferable Development Rights, which shall be approved if City Council determines sufficient evidence exists that the property meets the following criteria: 26.535.070. Review criteria for establishment of a historic transferable development right. A. The sending site is a historic landmark on which the development of a single- family or duplex residence is a permitted use, pursuant to Chapter 26.710, Zone Districts. Properties on which such development is a conditional use shall not be eligible. B. It is demonstrated that the sending site has permitted unbuilt development rights, for either a single-family or duplex home, equaling or exceeding two hundred and fifty 250) square feet of floor area multiplied by the number of historic TDR certificates requested. C. It is demonstrated that the establishment of TDR certificates will not create a nonconformity. In cases where a nonconformity already exists, the action shall not increase the specific nonconformity. D. The analysis of unbuilt development right shall only include the actual built development, any approved development order, the allowable development right prescribed by zoning for a single-family or duplex residence, and shall not include the potential of the sending site to gain floor area bonuses, exemptions or similar potential development incentives. E. Any development order to develop floor area, beyond that remaining legally connected to the property after establishment of TDR Certificates, shall be considered null and void. F. The proposed deed restriction permanently restricts the maximum development of the property (the sending site) to an allowable floor area not exceeding the allowance for 117/119 Neale Avenue Ordinance #2, Series of 2012 Page 3 of 7 P232 VIII.b a single-family or duplex residence minus two hundred and fifty (250) square feet of floor area multiplied by the number of historic TDR certificates established. For properties with multiple or unlimited floor areas for certain types of allowed uses, the maximum development of the property, independent of the established property use, shall be the floor area of a single-family or duplex residence (whichever is permitted) minus two hundred fifty (250) square feet of floor area multiplies by the number of historic TDR certificates established. The deed restriction shall not stipulate an absolute floor area, but shall stipulate a square footage reduction from the allowable floor area for a single-family or duplex residence, as my be amended from time to time. The sending site shall remain eligible for certain floor area incentives and/or exemptions as may be authorized by the City Land Use Code, as may be amended from time to time. The form of the deed restriction shall be acceptable to the City Attorney. G. A real estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of historic TDR certificates to the sending site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the County Clerk and Recorder's office. H. It shall be the responsibility of the sending site property owner to provide building plans and a zoning analysis of the sending site to the satisfaction of the Community Development Director. Certain review fees may be required for the confirmation of built floor area; and WHEREAS, Amy Guthrie, Historic Preservation Officer, in her staff report to City Council, performed an analysis of the application, found that the review standards for Historic Landmark Designation, Historic Landmark Lot Split and Transferable Development Rights are met, and recommended approval; and WHEREAS, at their regular meeting on January 11, 2012, the Historic Preservation Commission considered the application for Historic Landmark Designation, Historic Landmark Lot Split, and benefits within their purview, namely an FAR bonus, setback variances and parking variances, found the application was consistent with the review standards and unanimously recommended approval by a vote of five to zero (5 to 0), with conditions; and WHEREAS, the City Council finds that the proposal meets or exceeds all applicable development standards and that the approval of the development proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS,the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. 117/119 Neale Avenue Ordinance #2, Series of 2012 Page 4 of 7 P233 VIII.b NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,THAT: Section 1: Historic Designation Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, Aspen City Council hereby approves Historic Designation for 117/119 Neale Avenue, Lot 2, Amended Shoaf's Waterfall Subdivision, Together With The Property Described On The Deed Recorded In Book 799 At Page 660, City and Townsite of Aspen, Colorado. Section 2: Historic Landmark Lot Split Pursuant to the findings set forth in Section 1, above, the City Council does hereby grant a Historic Landmark Lot Split Subdivision Exemption for 117/119 Neale Avenue, Lot 2, Amended Shoaf s Waterfall Subdivision, Together With The Property Described On The Deed Recorded In Book 799 At Page 660, City and Townsite of Aspen, Colorado with the following conditions: 1.A subdivision exemption plat and subdivision exemption agreement shall be reviewed and approved by the Community Development Department and recorded in the office of the Pitkin County Clerk and Recorder within one hundred eighty (180) days of final approval by City Council. Failure to record the plat and subdivision exemption agreement within the specified time limit shall render the plat invalid and reconsideration of the plat by City Council will be required for a showing of good cause. As a minimum, the subdivision plat shall: a. Meet the requirements of Section 26.480 of the Aspen Municipal Code; b. Contain a plat note stating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to the provisions of the Land Use Code in effect at the time of application; c. Contain a plat note stating that all new development on the lots will conform to the dimensional requirements of the R-15 zone district, except the variances approved by the HPC; and d. Be labeled to indicate that the FAR allowance is as follows: Lot 1 is entitled to 4,200 square feet of Floor Area for a single family house. Lot 2 is entitled to 1,133 square feet of Floor Area for a single family house (which includes a 500 square foot floor-area bonus granted by the HPC). 500 square feet of the Floor Area entitlement can only be used for the creation of two Transferable Development rights (TDRs), which must be severed and sold to an eligible property. e. An easement shall be indicated on Lot 1 for the purpose of creating one parking space dedicated in perpetuity for the use of Lot 2. The curb cut, driveway and/or parking area on Lot 1 shall meet the City Engineer's requirements for safety. Section 3: Transferable Development Rights At the time of issuance of the TDRs, the owner will record a deed restriction permanently restricting the maximum development of the property (the sending site) to an allowable floor area not exceeding the allowance for a duplex residence plus a 500 square foot FAR bonus awarded by HPC, minus five hundred (500) square feet of floor area that shall be converted into two TDR certificates. 117/119 Neale Avenue Ordinance#2, Series of 2012 Page 5 of 7 P234 VIII.b Section 4: Severability If any section, subsection, sentence, clause,phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5: Existing Litigation This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 6: Vested Rights The Land Use entitlements granted herein shall be vested for a period of three (3) years from the date of issuance of a development order. However, any failure to abide by any of the terms and conditions attendant to this approval shall result in the forfeiture of said vested property rights. Unless otherwise exempted or extended, failure to properly record all plats and agreements required to be recorded, as specified herein, within 180 days of the effective date of the development order shall also result in the forfeiture of said vested property rights and shall render the development order void within the meaning of Section 26.104.050 (Void permits). Zoning that is not part of the approved site-specific development plan shall not result in the creation of a vested property right. No later than fourteen (14) days following final approval of all requisite reviews necessary to obtain a development order as set forth in this Ordinance, including Final Major Development and Commercial Design Reviews by the HPC, the City Clerk shall cause to be published in a newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to this Title. Such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a site specific development plan, and the creation of a vested property right, valid for a period of three (3) years, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes,pertaining to the following described property: 117/119 Neale Avenue, Lot 2, Amended Shoaf's Waterfall Subdivision, Together With The Property Described On The Deed Recorded In Book 799 At Page 660, City and Townsite of Aspen, Colorado. Nothing in this approval shall exempt the development order from subsequent reviews and approvals required by this approval of the general rules, regulations and ordinances or the City of Aspen provided that such reviews and approvals are not inconsistent with this approval. The approval granted hereby shall be subject to all rights of referendum and judicial review; the period of time permitted by law for the exercise of such rights shall not begin to run until the date of publication of the notice of final development approval as required under Section 26.304.070(A). The rights of referendum shall be limited as set forth in the Colorado Constitution and the Aspen Home Rule Charter. 117/119 Neale Avenue Ordinance #2, Series of 2012 Page 6 of 7 P235 VIII.b Section 7: Public Hearing A public hearing on the ordinance shall be held on the 27th day of February, 2012 in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a public notice of the same was published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 23rd day of January, 2012. ov •114 1.7 4/P'•4fr Michael C. Ireland MayorY ,, AT ' ST: Kathryn Koch ity Clerk FINALLY,adopted,passed and approved this 27th day of February 2012. 44- Michael C. Ireland, Mayo AT ST: y/1; ii, Kathryn Koch City Clerk APPROVED AS TO FORM: ames R. True, City Attorney 117/119 Neale Avenue Ordinance #2, Series of 2012 Page 7 of 7 P236 VIII.b ry J C 1 N O . rsl m • d V H« oco r= mLy- 5 . O 9N, NE$ a>.- o a a, Qa – N O2NUiL O o LLxN E Zv. NC OO>, O U •, a i= QOO roOc - YO 8: 2, i– g. J. a_ Jat 2?_ a yWad « 0OQ Wa, oc m- o,, d yx n, m Z9NC Y « 0Y.- m . O . aVV, L-, O-. L- N O. • U Cn O Op L.. I. ¢ Oc`~ ro9- 2 dy 3- _ t wN 0‘ n• O N« O L O F 3 = U d N o c Q OQ/ .. i IIIIII11111\ G m - 7 w ' O E w U a 3 Nal H 1) 78 o U L v Q Z = C fa o a oa3 ° aN o O v v a o , c 0 •- Z MI= 0 m ,- cl " ' 0-) „;-• .( 74 " 4 1- v) 4-, 1 i .. 4.' PL4 wrsi ." a Q v o v 3 f- T- 4 glom 0 7: i iii v • - 3 vl : 0 0 3U ra. 4•.- 1 cn u Q M cC d' fl - U p q CL H ca u .„ . crri rip C. 7 Q P237VIII.b r Regular Meeting Aspen City Council February 27, 2012 the financial needs of the project. This neighborhood is one of the last affordable middle income neighborhoods in Aspen. Ms. Kohlberg said she does not feel this development will keep the area and neighborhood vital. Mary Ellen Sheridan, property manager for this project, said the existing buildings need to be replaced and the location needs to be redeveloped. This is a great project and the changes have all been for the improvement of the project. Mayor Ireland closed the public hearing. Councilman Skadron asked if what is happening to the west end is being replicated in this area. Clauson noted the R -6 zoning in the west end does not allow multi - family development or to provide for affordable housing. This area is zoned RMF and allows redevelopment that would include affordable housing. Clauson said this proposal has an increase in the number of FTEs housed under the affordable housing program. Councilman Frisch said there is probably not a maximum size free market unit that would insure occupancy. Councilman Frisch said if this proposal disappears, this issue becomes what might replace it. Councilman Frisch said the applicants have listened to Council and made changes over the many meetings. Councilman Frisch said the housing portion mixes livability with affordability; this is a great location in which to live. Councilman Johnson moved to adopt Ordinance #19, Series of 2011; seconded by Councilman Frisch. Councilman Johnson said there have been improvements, like more open space, larger setbacks, smaller footprint, and the architecture. Councilman Johnson noted the livability for the affordable housing has improved, roof top decks are gone, there is improved storage, the parking situation is better, and there are balconies and decks. The notion of a public /private partnership is a good one; there will be 27.5 FTEs on site. Councilman Johnson said he feels it is time to approve this project for this area as it provides things Council wants for the community. Councilman Torre agreed there are benefits of the project; however, his fear is creating free market residential in this location that will not serve the community. Councilman Torre agreed the applicants have listened to Council's comments. Councilman Torre said the underground parking is a departure from the development of this area. Councilman Skadron said he will support this project; he does not know what else he could ask for to make it more palatable. Councilman Skadron said there is an element of reason that needs to be recognized. Mayor Ireland said he has mixed feelings and does not know if there is anything the city can do to reverse the darkening of neighborhoods. There are forces beyond the community that cause that trend. Mayor Ireland said it is frustrating to get 1% reduction at a time; however, people do give ground slowly. Roll call vote; Johnson, yes; Frisch, yes; Torre, no; Skadron, yes; Mayor Ireland, no. Motion carried. ORDINANCE #2, SERIES OF 2012 — Historic Designation/Lot Split 117 — 199 Neal Avenue 9 P238 VIII.b Regular Meeting Aspen City Council February 27, 2012 Amy Guthrie, community development department, noted this site currently contains a single family house and log cabin, which was moved into the city in the 1960's by the Benedicts to Stillwater ranch. In the 1990's, the applicant purchased the cabin and moved it to this location, restored the cabin and turned it into a voluntary ADU. The applicant has requested voluntary historic designation and a lot split with a 3,000 square foot lot so that the cabin cannot be substantially added on to. Ms. Guthrie told Council there are several different development scenarios, all of which add up to the same amount of development. Ms. Guthrie said the steep slope calculations have to be subtracted and HPC would like to award a 500 square foot bonus for preserving the cabin. There is 5333 of FAR in total that can be developed and allocated between the two lots. Ms. Guthrie reiterated all 3 options result in about the same development. The applicant will probably sell up to 3 TDRs to relieve development pressure on the cabin. Mayor Ireland opened the public hearing. There were no comments. Mayor Ireland closed the public hearing. Mayor Ireland moved to adopt Ordinance #2, Series of 2012, with option 1 and up to 3 TDRs; seconded by Councilman Skadron. Mayor Ireland said option 1 allows the least amount of development on the lot and allows sale of TDRs which would help defray the costs. Councilman Frisch said ADUs had their time and have not worked successfully and he would like to not approve anymore. Jeff Shoaf, applicant, said he likes the 3 options because it allows more flexibility. Shoaf noted there is little difference in the amount of square footage that would be allowed. Roll call vote; Frisch yes; Johnson, yes; Torre, yes; Skadron, yes; Mayor Ireland, yes. Motion carried. ORDINANCE #4, SERIES OF 2012 — Subdivision Amendment 320 Lake Avenue Amy Guthrie, community development department, said this proposal is to remove a condition of approval placed on a plat for this property from the 1980's. This lot was created through a subdivision process in 1987. During subdivision review, a lot of concern for the trees on this site and its proximity to Hallam Lake was expressed. Council created special setback requirements, especially for the cottonwoods. Ms. Guthrie said there is a proposed redevelopment for the property; it has received conceptual approval from HPC. The proposal is to demolish a non- historic addition to the house and replace it; part of the proposal is to move the house over on the site and in order to do that, the applicant requests the plat note be removed. Ms. Guthrie noted the cottonwood trees on site have declined; they are decayed and the parks department has issued a tree removal permit so the requirement for a special setback is no longer necessary. Any redevelopment will still have to meet the Hallam Lake setback. Mike Hoffman, representing the applicant, said the request is to amend a subdivision plat to allow the south side setback to conform to the R -6 zone district rather than a special setback. Hoffman said in the 1990's Ronnie Marshall requested a subdivision of her property into two parcels; this is a request for parcel 1. Hoffman showed the plat, the trees subject to the special setback. The applicants are proposing a revised plat. 10 P239 VIII.b P240VIII.b P241VIII.b Regular Meeting Aspen City Council May 4, 2015 8 allotments and the affordable housing mitigation using the cash in lieu at the regulations current at the time of application. Mayor Skadron said he can agree with some of it but not all. The allowable FAR is based on the lot as platted. Councilman Frisch said it is important to not treat these lots any different than if a private seller did the transaction. He said he is having a hard time supporting this because it seems like the government pulled out an eraser and redrew and lots. Councilwoman Mullins said maybe the road was there first. It is in the code currently and we should not go against it. Ms. Phelan said the right of way was never intended to have development rights associated with it. Mayor Skadron opened the public comment. 1. Peter Fornell said the applicant is not asking to pay money but to mitigate for a quantity of employees. If he buys certificates from me, he satisfy that, if he builds on site he satisfy it, if he builds off site he satisfy it, if he purchases a buy down he satisfy it, if he pays cash in lieu he will not satisfy that concern. 2. Marcia Goshorn said she is glad they did not suggest an ADU. She is not a big fan of cash in lieu she would rather see a unit built. One issue is treating projects fairly. Sky was given credit for a vacated right of way. 3. Tracey said she has been working closely with the lots since they were purchased. This is the west end. Every lot around it is being treated as a west end lot except these. Every part of the code refers to the 1800’s map and shows these lots as originally there. She does not understand why we are here. It is a frustrating process. It should go back to the original town site. 4. Curt Sanders said he represents the other two lot owners. On behalf of the other owners it would go a long way if Council accepted the cash in lieu. Mayor Skadron closed the public comment. Councilman Romero said he is ok with the cash in lieu. Mr. Hoffman said they are proposing the cash in lieu to be determined at the rate described in the code at the time they submit a building permit application. Ms. Phelan reviewed the ordinance changes to include the slopes are man-made at the site and not to be deducted, the alley and West Francis Street shall be deducted from lot 4 and 5, the vesting period is three years, credits or cash in lieu at time of building permit issuance. Councilman Romero moved to adopt Ordinance #16, Series of 2015 with amendments; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Romero, yes; Mullins, yes; Frisch, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #17, SERIES OF 2015 – 119 Neale Avenue Subdivision Amendment and Transferable Development Rights Amy Simon, community development, stated this is a proposed subdivision amendment and creation of TDRs. Around three years ago, Council approved the subdivision on Neale Avenue which took a 16,000 sq ft lot and landmarked it and allowed for a historic lot split. There is an 1800s log cabin on the fathering parcel that was moved here from outside of town that was rescued and restored. That was the reason for placing the landmark designation on the property. It allows the separation of property rights. It created a 3,000 sq ft lot with the cabin and a 12,000 sq ft lot with an existing home. The lot with the existing home was allowed 4,200 sq ft of floor area. When Council approved the subdivision the larger house could have had a duplex but Council elected to restrict it to a single family home. The applicant, P242 VIII.b Regular Meeting Aspen City Council May 4, 2015 9 Geoff Shoaf, would like Council to change that restriction and allow the duplex. This is not a discussion about increasing floor area just relief of that restriction. He would also like to create three TDRs. Staff is supportive of the application. Geoff Shoaf, applicant, said the floor area stays the same if it is a duplex or a single family home. In 2012 he screwed up. He thought he had options and did not have to make the call right then. That is how it became a single family home. He said the duplex allows for the possibility of him to continue to live here when he retires. Any redevelopment would be moved farther away from the historic cabin. Councilman Frisch said he would like to have the duplex issue cleared up before he tackles the TDR issue. Mayor Skadron opened the public comment. 1. George Benninghoff said he is a neighbor. He said there is property in dispute and if FAR as it is calculated may not be correct. He is not in favor of a duplex and Council should not allow this to happen. 2. David Harris asked Council to reject the proposal. Doubling the number of units on one parcel is not minor and not consistent with the original approval. We are in a war with this guy who has been illegally using this place since 1986 and I am being asked to accept double the density next door to me. I just don’t know how you can allow it. Mayor Skadron closed the public comment. Councilman Frisch suggested Mr. Shoaf pull his application, pause and reflect. Council is better to post pone until they have more clarity. Councilwoman Mullins said the underlying zoning allows a duplex or a single family home. From the minutes the decision of a single family was somewhat arbitrary and was decided too quickly without enough research. By turning it into a duplex Council would be correcting some mistakes that should not have been made and she is not sure that is the right move. She is reluctant to turn it back to a duplex just to correct some illegal activity that is going on. Councilman Romero said it may be time to pull it back. There was gain in 2012. He said he is with Councilman Frisch to recommend a continuance. He said he would support the TDR application. Councilman Frisch moved to table Ordinance #17, Series of 2015; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Mullins, yes; Frisch, yes; Romero, yes; Mayor Skadron, yes. Motion carried. Councilman Frisch moved to adjourn at 9:52pm; seconded by Councilwoman Mullins. All in favor, motion carried. Linda Manning, City Clerk. P243 VIII.b Regular Meeting Aspen City Council November 14, 2016 16 beautiful site that should be redone. Putting affordable housing on it flies in the face of historic preservation. 2. Kim Kaylin said her concern with the design is the lack of parking. She manages Centennial and this should have 18 parking spaces not 6. There is limited parking there already. 3. Bob Bowden said he is a minority partner in this project. He has seen very few projects that are as a win as this one. We need housing. We have satisfied HPC with this. We met 6 of the 7 parking space requirements. If not now, when. If not here, where. Councilman Frisch asked what is the code as far as parking. Mr. Barker replied one parking space per unit. It doesn’t matter the size. Seven are required they are meeting six and paying cash for one. Councilwoman Mullins said there is a seven unit affordable housing development just down the street from my house. At the time they were only going to provide four spaces and ended up with six. It has been no problem. One of the guidelines is a distinction between new and old. There doesn’t seem to be a lot of distinction. Mr. May said when we originally started it was in a different spot. HPC wanted to see a more similar form. The plan is to differentiate with materials as we move towards final. Mr. Rawley said the historic resource will occupy a prominent spot on the site and giving it its due. Mr. May said we did try to get more modern with the building along 8tth Street. Councilwoman Mullins said it would be great to have each of these historic building restored on large lots. Unfortunately, that does not happen anymore. At this point there are two options, affordable housing or a private residence. I’ve seen private residence much more detrimental to the resource than this type of development. It is a compromise we have to make to save these resources. Councilman Frisch said to go back to the historic building, when it is done in real life the building on the corner will stand out more than in the drawing. Mr. May replied yes. Councilman Myrin said as you come in to town the first thing you see are the Victorians of Aspen. I will support this because the comments from Peter in the minutes. What concerns me is this is .86 FAR and what is on Main is significantly more. Ideally we have a code that starts at 50 percent. Will this be designed so there will be no snowmelt needed. Mr. May said we will take it into consideration. Mayor Skadron said on parking the code requires seven. Kim suggested we think of it in terms of bedrooms. Mr. Brown said Peter has two building and one had a full waiver of parking the other had a three waiver of parking. Mayor Skadron said this brings loads of community values and furthers the maturation of the credit program and activates this critical location in town. The square feet is not a signification increase. He accepts HPC comments. It appears to be high quality and livable and meets many of our community needs. Councilwoman Mullins moved to adopt Ordinance #23, Series of 2016; seconded by Councilman Daily. Roll call vote. Councilmembers Mullins, yes, Frisch, yes, Daily, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #24, SERIES OF 2016 – Transferable Development Rights, Public Hearing Continued From September 26, 2016 Mr. True stated for the record Art Daily has left. P244 VIII.b Regular Meeting Aspen City Council November 14, 2016 17 Amy Simon, community development said the applicant would like to create three TDRs to be removed from 119 Neale Avenue. Jeff Shoaf has been the owner of the property for some time. He came and asked for a subdivision and created two lots. In the 90s he had the opportunity to buy a historic cabin from Fritz Benedict and move it to the site. In 2011 he came to the planning office and asked to participate in the historic program. Through the landmark program it was approved. He sold off one of the lots and some TDRs were created. During the lot split Council decided to limit some of the density. Council made the decision to limit it to a single family home. A year ago he asked to amend the ordinance to allow a duplex and create more TDRs. In 2015 at second reading, partly due to public input, he told Council he already had a duplex and partly hid it from inspectors. That brought the project to a halt. The building department did an inspection and found some deficiencies. They did not find two kitchens. A CO was issued recently for a single family home. The zoning allows a duplex on the site. Recently the applicant hired Mitch Haas as his representative. They withdrew the duplex request. We can just talk about TDRs. Staff still feels there is a violation. There is discussion about public comment from the neighbors. There is a property line dispute. We see it as an issue between the neighbors. Even if it is reallocated it still leaves the applicants property big enough for the lot split to occur and the TDRs to be requested. We support the creation of the TDRs. Mitch Haas, representing the applicant, said he started working with Mr. Shoaf three weeks ago. The original approval for the lot split allowed for the TDRs. Even with the disputed property there would still be enough lot area for the TDRs to happen. We are still attempting to work through the duplex issue with staff. He is not sure why the neighbors are opposed to this. Councilwoman Mullins asked if the 785 square feet was lost and the three TDRs are sold does it affect the ability to do a duplex. Ms. Simon replied no, the fathering parcel is big enough for this amount of density. Councilman Myrin asked is it typical that TDRs be taken off one at a time or all together. Ms. Simon said there is no requirement. There is no limit. Councilman Frisch said he was a little hot under the collar the last time this applicant was here. I kind of feel the same way now. We have someone violating some part of the city code and I would feel better if he figured out his past transgressions before asking for more. Mr. True said our code does not have a provision at this time that prohibits someone from moving forward with something. Enforcement of the other issue is up to staff and the court. At this point the only thing you can do is review this application under the provision of the code. Ms. Garrow said staff shares your frustration and as part of the moratorium code amendments there is language in there that would address this going forward. The request in front of us is for TDRs. Councilman Frisch said usually there is an applicant that sits in front of Council that needs something by right. Mr. True said your flexibility is set forth by a reasonable manner. Mayor Skadron opened the public comment. 1. Kelsey Nichols, attorney representing David Fuente, stated that they oppose this application because the owner does not have clear title. 26.304.030b2 states an applicant has to provide a legal description. The title issues go back to 1977. The 785 square feet is a limited common element of Urban Blight Condominiums. Land cannot be transferred separately from a condominium unit. It would be a mistake to rely on the title report to determine this type of issue. The 1995 deed shows more clearly the sliver of land. If he doesn’t own this land, we can’t P245 VIII.b Regular Meeting Aspen City Council November 14, 2016 18 determine the maximum square footage or the total number of TDRs. Is he complying with Ordinance number 2. She showed an image of the plat that was submitted with the application. She requests that the application be denied. He has not met the minimum requirement of showing clear title. It is my legal opinion there is a clear legal title issue. Without knowing the size of the lot you just don’t know. Combined with the numerous enforcement issues there are too many problems for council to be able to proceed. Mr. True said you don’t challenge his title to the 15,000 square feet that does not include the sliver. Ms. Nichols replied including the 785, lot one is 12,765 and lot 2 is 340. We disagree it includes the 785. 2. George Benninghoff, owner of unit 2 of Urban Blight, said they have not been able to arrive at a satisfactorily conclusion or quiet title action. He does not wish to stand in the way of Mr. Shoafs use of his own property but do wish to stand in the way of the use of his property. The entity itself made no such transfer of property. This is a fairly valuable little slice of property. It prevents Urban Blights access to the roaring fork river. 3. David Harris said he does not want to deny Mr. Shoaf any of his legal rights. This has been wrong, wrong wrong. He is asking council to get it right and go forward. He disputes the amount of square feet on the plat. The fathering parcel is under 15,000 square feet. Even without the 785 square feet this lot does not qualify for 3 TDRs. He just wants it to be right. He would like staff to redo the calculations. No progress has been made. The building is still being used illegally. The CO was issues in September. Give us some certainty. He is not sure how you can hand out TDRs when you don’t know what someone owns. Councilman Frisch asked are you saying in 2015 there was a lack of clear title and he was going to work on it and nothing was done. Mr. Harris replied my professional agreement is that strip of land is owned by Urban Blight Condominium Association. Mr. True said that Mr. Harris pointed out that lot 2 has 1.344 acres. We have struggled over this today. This subdivision started with 30,001 square feet. It was divided that gave one lot 15,000 and ¼ square feet. To say that .344 acres is a rounding issue. What you are forgetting is you started with 30,000 and divided in half. If you didn’t have a 15,000 lot you couldn’t do the lot split. Even without the 785 of the sliver that have over 15,000 that would translate into 3 TDRs. Mayor Skadron closed the public comment. Mr. Haas said there is a lot of dispute going on here. Council is being asked to play the court of law here. My client has title to the property and a recorded plat. The plat is signed by a title examiner as well. We know the size of the lot. It is on the plat. We are not asking you to decide on the size of the lot or the duplex issue. We are asking you about the TDRs. Councilman Frisch said in 5 years this is the second time ever there is a base agreement on some facts. I’m not happy we are even having this discussion until some basic facts are even figured out. In this situation like before it is a self-inflicted wound from the applicant. I’m not sure why we were forced to take this up now in the midst of a moratorium. I’m not going to support the TDR thing. He also said on the record that he was going to work on clean title and he has done zilch, zippo, nada. I’ve heard three people say that he has done nothing. The applicant should come back when the bare minimum has been met. Ms. Simon replied all we ask of the applicant is for a bare minimum title fact. That is what they provided. Councilman Frisch said I’m not picking sides about who owns the sliver. Ms. Garrow stated she is not sure there is much more analysis staff can do. There are often rounding errors to be some clarity of who owns the property before he starts asking for more from the community. P246 VIII.b Regular Meeting Aspen City Council November 14, 2016 19 Councilwoman Mullins said if there is enough dispute should we go for another title search. Based on the requirements and what you presented should go on plats. As Amy said the applicant updated their title commitment, that is why we are here. If there is a dispute it is a private matter at this point. Mr. True said a lot of this turns in to unraveling ordinance #2, which I don’t know how we do. If council wishes to continuing the matter it would be under a further analysis of B and C. I agree with Jessica that the arithmetic is arithmetic. It is a difficult situation. I’m not sure how we change anything by evaluating it further. Mayor Skadron said he wants to apply the criteria but I find myself unable to sufficiently apply B and C. My suggestion would be to continue the matter for clarity. Mr. True said staff feels the criteria have been met, despite the sliver. I support that position. We can see if there is anything that would change that position. Ms. Garrow said we don’t have the resources or funding to do that. Mr. True said that may resolve the whole thing. He does not know what additional work staff can do on it. You can ask the applicant to do another full title search. Councilwoman Mullins said too many questions have come up. She would support asking the applicant to update the survey. Ms. Garrow said Council is struggling with criteria C. She does not see Council making a decision tonight. She recommends tabling or continuing to a date certain and have the applicant provide more information either through a title search or a survey. Mayor Skadron said he will not be bullied into an outcome that is unsatisfactory. Ms. Garrow recommend tabling to provide time for the applicant to do that. Councilman Myrin moved to table Ordinance #24, Series of 2016; second by Councilman Frisch. All in favor, motion carried. Councilman Frisch moved to adjourn at 10:50 p.m.; seconded by Councilwoman Mullins. All in favor, motion carried. Linda Manning, City Clerk P247 VIII.b Regular Meeting Aspen City Council November 14, 2016 20 P248 VIII.b 1 of 19 City of Aspen Historic TDRs Last Updated: Certificate Number Former Cert. No.TDR Number Issuance Date Certificate Owner Sending Site Sending Site Parcel ID # Landing Site or New Cert. No. Landing Site Parcel ID # 1 N/A FC Lot 5 TDR 1 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Lot 5 273707392005 Fox Crossing Lot 11, Unit A 273707392015 2 N/A FC Lot 5 TDR 2 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Lot 5 273707392005 Fox Crossing Lot 13 273707392013 3 N/A FC Meadow TDR 1 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Meadow 273707392014 Fox Crossing Lot 9 273707392009 4 N/A FC Meadow TDR 2 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Meadow 273707392014 Fox Crossing Lot 9 273707392009 5 N/A FC Meadow TDR 3 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Meadow 273707392014 Fox Crossing Lot 10 273707392010 6 N/A FC Meadow TDR 4 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Meadow 273707392014 Fox Crossing Lot 10 273707392010 7 N/A FC Meadow TDR 5 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Meadow 273707392014 Fox Crossing Lot 13 273707392013 8 N/A FC Lot 6 TDR 1 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Lot 6 273707392006 Fox Crossing Lot 1 273707392001 9 N/A FC Lot 6 TDR 2 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Lot 6 273707392006 Fox Crossing Lot 1 273707392001 10 N/A FC Lot 6 TDR 3 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Lot 6 273707392006 Fox Crossing Lot 2 273707392002 11 N/A FC Lot 6 TDR 4 1/31/2006 Fox Crossing Partners, LLC Fox Crossing Subdivision Lot 6 273707392006 Fox Crossing Lot 2 273707392002 12 N/A TS-B65-LK-1 1/2/2007 Nancy Spears 100 East Bleeker Street, Lot k Block 65 273512437005 850 Moore Drive 273514111109 13 N/A TS-B65-LK-2 1/2/2007 Nancy Spears 100 East Bleeker Street, Lot k Block 65 273512437005 850 Moore Drive 273514111109 14 N/A TS-B36-LIH-1 9/13/2007 Mary Janss 1992 Revocable Living Trust 403 West Hallam Street, Lot I and East 1/2 of Lot H, Block 36 273512433005 She sold her TDRs. Do not call her for TDRs. 15 N/A TS-B36-LIH-2 11/1/2007 Mary Janss 1992 Revocable Living Trust 403 West Hallam Street, Lot I and East 1/2 of Lot H, Block 36 273512433005 406 E. Hopkins Avenue, Unit B of the Isis Theatre Condos 273707330010 16 N/A TS-B71-LDE-1 12/20/2007 Frost Barn Property, LLC 208 East Hallam Street, Lots D and E, Block 71 273707314003 201 West Hallam 273512435002 17 N/A TS-B71-LDE-2 12/20/2007 Frost Barn Property, LLC 208 East Hallam Street, Lots D and E, Block 71 273707314003 200 West Hallam Street 273512422006 18 N/A TS-B71-LDE-3 12/20/2007 Frost Barn Property, LLC 208 East Hallam Street, Lots D and E, Block 71 273707314003 602 E. Hyman Avenue 2737-182-12-003 4/27/2012- $275,000 19 N/A TS-B71-LDE-4 12/20/2007 Frost Barn Property, LLC 208 East Hallam Street, Lots D and E, Block 71 273707314003 20 N/A TS-B71-LDE-5 12/20/2007 Frost Barn Property, LLC 208 East Hallam Street, Lots D and E, Block 71 273707314003 September 14, 2017 P249VIII.b 2 of 19 Certificate Number Former Cert. No.TDR Number Issuance Date Certificate Owner Sending Site Sending Site Parcel ID # Landing Site or New Cert. No. Landing Site Parcel ID # 21 N/A TS-B25-LB-1 4/18/2008 Douglas Kelso 627 West Main Street, Lot B, Block 25 273512448010 22 N/A TS-B113-LPQ-1 5/30/2008 Nyla White 827 Dean Street, Lots P and Q, Block 113 273718258004 23 N/A TS-B113-LPQ-2 3/12/2009 Nyla White 827 Dean Street, Lots P and Q, Block 113 273718258004 855 Roaring Fork Road 273512104017 24 N/A TS-B113-LPQ-3 10/27/2009 Nyla White 827 Dean Street, Lots P and Q, Block 113 273718258004 864 Moore Drive 273514111108 25 N/A TS-B25-LB-2 8/13/2010 Douglas Kelso 627 West Main Street, Lot B, Block 25 273512448010 864 Moore Drive 273514111108 26 N/A TS-B99-LRS-1 5/5/2011 630 E. Hyman LLC 630 E. Hyman Avenue, Lots R and S, Block 99 273718212007 630 E. Hyman Ave. 273718212007 27 N/A C-L14-1 5/5/2011 Susan Geary Griffin, Bonnie Geary Grenney, and William Scott Geary 1102 Waters Avenue, Lot 14, Calderwood Subdivision 273718266001 12/14/2012- $190,000 28 N/A TS-B113-LPQ-4 10/31/2011 Nyla White 827 Dean Street, Lots P and Q, Block 113 273718258004 614 N. Fourth Street 2735-121-10-004 Contact 614 Aspen LLC to find out purchase price for this TDR 29 N/A TS-B24-OP-1 1/25/2012 612 West LLC 612 W. Main, Lots O and P, Block 24 273512444006 1/27/2012-$185,000 30 N/A TS-B24-OP-2 1/25/2012 612 West LLC 612 W. Main, Lots O and P, Block 24 273512444006 1/27/2012-$185,000 31 N/A BC21 7/25/2012 Jeffrey Shoaf 117 Neale Avenue, Lot 2, Benedict Cabin Subdivision Exemption 273707353004 7/30/2012- $175,000 32 N/A BC22 7/25/2012 Jeffrey Shoaf 117 Neale Avenue, Lot 2, Benedict Cabin Subdivision Exemption 273707353004 7/30/2012- $175,000 P250VIII.b 3 of 19 Certificate Number Former Cert. No.TDR Number Issuance Date Certificate Owner Sending Site Sending Site Parcel ID # Landing Site or New Cert. No. Landing Site Parcel ID # 33 31 BC21 7/30/2012 Bell 26, LLC 835 Chatfield 2735-024-02-007 2017- $198,000 34 32 BC22 7/30/2012 Bell 26, LLC 35 N/A TS-B24-OP-3 12/7/2012 612 West LLC 612 W. Main, Lots O and P, Block 24 273512444006 600 N. Third Street 273512402002 12/7/2012-$180,000 36 N/A TS-B24-OP-4 12/7/2012 612 West LLC 612 W. Main, Lots O and P, Block 24 273512444006 2/25/2013-$205,000 37 N/A TS-B24-OP-5 12/7/2012 612 West LLC 612 W. Main, Lots O and P, Block 24 273512444006 675 S. Alps Rd., Lot 2 of the Moses Lot Split 2737-182-56-001 5/31/2013-$205,000 38 N/A TS-B24-OP-6 12/7/2012 612 West LLC 612 W. Main, Lots O and P, Block 24 273512444006 201 S. Garmisch 273512459003 11/11/2013-$240,000 39 N/A FC Lot 6 TDR 5 9/5/2013 Fox Crossing Properties, LLC Fox Crossing Subdivision Lot 6 273707392006 40 N/A FC Lot 6 TDR 6 9/5/2013 Fox Crossing Properties, LLC Fox Crossing Subdivision Lot 6 273707392006 41 N/A FC Lot 6 TDR 7 9/5/2013 Fox Crossing Properties, LLC Fox Crossing Subdivision Lot 6 273707392006 Fox Crossing Lot 11, Unit B 273707392016 no price - it was wrapped into the sale price of Lot 11, Unit B (a vacant lot) 42 N/A SC-Unit B-1 12/5/2013 624 West Francis LLC Starri Condominiums, Unit B 273512409012 1208 E. Hopkins 2737-181-00-041 no price- the person who created it used it on another property they own see Certificate 31 see Certificate 32 See certificate 53 P251VIII.b 4 of 19 Certificate Number Former Cert. No.TDR Number Issuance Date Certificate Owner Sending Site Sending Site Parcel ID # Landing Site or New Cert. No. Landing Site Parcel ID # 43 N/A 604-Lot 2-1 12/5/2013 604 West LLC 604 West Main Historic Landmark Lot Split, Lot 2 TBD 10/23/2014- $220,000 44 N/A 604-Lot 2-2 12/5/2013 604 West LLC 604 West Main Historic Landmark Lot Split, Lot 2 TBD 7/28/17- $180,000 45 N?A Beck Historic - Lot B -1 12/5/2013 John Rowland and Sarah Broughton Beck Historic Lot Split, Lot B 273512111007 623 E. Hopkins 273718212001 12/9/2013-$240,000 46 N/A Beck Historic - Lot B -2 12/5/2013 John Rowland and Sarah Broughton Beck Historic Lot Split, Lot B 273512111007 47 N/A 430-Lot 1-1 10/29/2014 Karbank 430 LLC 430 West Main Historic Landmark Lot Split, Lot 1 273512442009 501 W. Hopkins Avenue 2735-124-66-002 48 N/A 430-Lot 1-2 10/29/2014 Karbank 430 LLC 430 West Main Historic Landmark Lot Split, Lot 1 273512442009 2/9/17- $185,000 49 N/A HA-B40-L567-1 2/11/2015 301 Lake Avenue LLC 301 Lake Avenue, the east 1/2 of Lot 5 and all of Lots 6 and 7, Block 40, Hallam's Addition 2735-124-16-003 50 N/A 120RMR-1 1/5/2015 Red Mountain Riverfront LLC 120 Red Mountain Road 2737-072-00-028 100 E. Main 2735-124-01-202 no sale price- owner landed TDR on another parcel he owns 51 N/A 120RMR-2 1/5/2015 Red Mountain Riverfront LLC 120 Red Mountain Road 2737-072-00-028 52 28 TS-B113-LPQ-4 2/2/2015 707 HC, LLC and Young Investments, LLC See Certificate 28See Certificate 28 P252VIII.b 5 of 19 Certificate Number Former Cert. No.TDR Number Issuance Date Certificate Owner Sending Site Sending Site Parcel ID # Landing Site or New Cert. No. Landing Site Parcel ID # 53 36 TS-B24-OP-4 4/27/2015 DH Hallam LLC 54 14 TS-B36-LIH-1 7/7/2015 Ruth A Carver, Trustee of the Ruth A. Carver Revocable Trust 55 N/A FC Lot 5 TDR 3 9/18/2015 Fox Crossing Properties- Lot 5 LLC Fox Crossing Subdivision Lot 5 273707392005 1/3/17- sold along with TDR 56 for $340,000 56 N/A FC Lot 5 TDR 4 9/18/2015 Fox Crossing Properties- Lot 5 LLC Fox Crossing Subdivision Lot 5 273707392005 1/3/17- sold along with TDR 55 for $340,000 57 N/A FC Lot 5 TDR 5 9/18/2015 Fox Crossing Properties- Lot 5 LLC Fox Crossing Subdivision Lot 5 273707392005 58 N/A TS-B65-LM-1 3/11/2016 Bleek House, LLC 110 E. Bleeker 2735-124-37-006 59 N/A TS-B65-LM-2 3/11/2016 Bleek House, LLC 110 E. Bleeker 2735-124-37-006 60 N/A SC-CUA-1 7/5/2016 626 Francis, LLC 626 W. Francis 2735-124-09-011 61 N/A SC-CUA-2 7/5/2016 626 Francis, LLC 626 W. Francis 2735-124-09-011 62 N/A SC-CUA-3 7/5/2016 626 Francis, LLC 626 W. Francis 2735-124-09-011 See Certificate 14 See Certificate 36 P253VIII.b 6 of 19 Certificate Number Former Cert. No.TDR Number Issuance Date Certificate Owner Sending Site Sending Site Parcel ID # Landing Site or New Cert. No. Landing Site Parcel ID # 63 N/A TS-HSLS-L1-1 7/5/2016 Elm 223, LLC 211 E. Hallam 2737-073-16-007 3/15/17-$185,000 64 N/A TS-HSLS-L1-2 7/5/2016 Elm 223, LLC 211 E. Hallam 2737-073-16-007 65 N/A 430-Lot 1-3 8/3/2017 Karbank 430 LLC 430 West Main Historic Landmark Lot Split, Lot 1 273512442009 7/28/17- $180,000 66 N/A 604-Lot 2-3 in progress 604 West LLC 604 West Main Historic Landmark Lot Split, Lot 2 273512444012 To extinguish, assign the certificate to "The City of Aspen" The TDR number is determined as follows: original townsite/ subdivision name- block- lot- number of tdr for the property For example: a property that is part of the original townsite, block 65, lot K with only 1 tdr being established would be: TSB65LK1 another example: a property that is part of the fox crossing subdivision, lot 6, the second tdr being established on the lot would be: FC62 P254VIII.b APPROVED TDRs Property number of TDRs approved Ordinance #Year Fox Crossing Lot 5 2 50 2004 Fox Crossing Meadow 5 50 2004 Fox Crossing Lot 6 4 50 2004 100 East Bleeker 2 31 2006 403 West Hallam 2 32 2006 208 East Hallam 5 42 2007 627 Main Street 1 2 2008 827 Dean Street 4 6 2008 612 West Main Street 6 12 2008 541 Race Street (fox crossing lot 6)3 30 2008 627 Main Street 1 12 2009 630 E. Hyman Avenue 1 26 2009 1102 Waters Avenue 1 23 2010 117/119 Neale Avenue 2 2 2012 604 W. Main 12 24 2013 507 Gillespie 2 25 2013 430 W. Main 10 30 2013 624 W. Francis 1 40 2013 549 Race Alley (Fox Crossing Lot 5)3 46 2013 1006 E. Cooper Avenue 2 28 2014 120 Red Mountain 2 18 2014 301 Lake Avenue 1 21 2014 211 E. Hallam 2 14 2015 110 E. Bleeker 2 31 2015 626 W. Francis 3 2 2016 total number of approved TDRs 79 P255VIII.b September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 1 of 8 MEMORANDUM TO: Mayor and City Council FROM: Justin Barker, Senior Planner Phillip Supino, Principal Long-Range Planner THRU: Jessica Garrow, Community Development Director James R. True, City Attorney RE: Policy Resolution: Resolution 126, Series 2017 – Post-Moratorium Clean-Up Ordinance First Reading: Ordinance 23, Series 2017 – Post-Moratorium Clean-Up Ordinance MEETING DATE: September 25, 2017 SUMMARY: Following the completion of the AACP-LUC Coordination Process, staff has identified a handful of follow-up amendments to the Land Use Code which will ensure the revised code delivers Council’s stated policy and regulatory goals. The amendments, outlined below, are based on discussions with Council during the coordination process and staff’s experiences in working with the Land Use Code since the ordinances were adopted. Given that all the items included in the proposed ordinance are based on Council discussion during the coordination process, the Planning staff and City Attorney suggest Council initiate the recommended code amendments through a combined Policy Resolution and First Reading hearing. The combined process will reduce the time required of Council and staff to complete the amendment process. This will facilitate the development of a large miscellaneous code amendment later in the year to address more substantive code revisions. Should Council require deeper analysis or discussion of any of the items included in Ordinance 23, staff recommends pulling that item from the ordinance and considering it as part of the upcoming miscellaneous code amendment. STAFF RECOMMENDATION: Staff recommends approval of the proposed resolution and first reading of the ordinance. LAND USE REQUESTS AND REVIEW PROCEDURES This meeting is to review potential changes to the Land Use Code sections regulating signage. Pursuant to Land Use Code Section 26.310, City Council is the final review authority for all code amendments. All code amendments are subject to a three-step process. This combined hearing covers the second and third steps in the process: 1. Public Outreach. P256 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 2 of 8 2. Policy Resolution by City Council indicating if an amendment should be pursued. 3. Public Hearings on Ordinance outlining specific code amendments. City Council is first asked to review and vote on the proposed Policy Resolution. Should the policy resolution be approved, Council is then asked to vote on whether to open the public hearing on Ordinance 23. Ordinance 23, 2017 combines all of the proposed code amendments. This reflects past practice and simplifies the code amendment and codification process. However, should any of the proposed code amendments warrant further discussion beyond consideration of the rest of Ordinance 23, staff can pull specific items from the draft ordinance for consideration at a later date. BACKGROUND In February of 2016, City Council adopted a commercial development moratorium to provide Council and staff with the time required to look comprehensively at a variety of code sections. Council’s stated goal was to “coordinate the Land Use Code with the Aspen Area Community Plan, so the LUC delivers what the AACP promises.” To achieve this goal, City Council and the Community Development Department engaged in a comprehensive re-write of many of the regulations governing commercial development within the City’s commercial zone districts for much of 2016. That process concluded in February, 2017 with the adoption of Ordinances 29, 30, 31, 32, 33 and, three months later, 34. As staff and the consultant team stated during the moratorium process, code amendments of that size, and under those time constraints will require a subsequent follow-up to address any unintended oversights and omissions, incorrect references and general scrivener’s errors. In the case of the proposed post-moratorium clean-up, those items include Definitions in section 26.100, Growth Management Quota System in section 26.470, the parking standards in section 26.515, Commercial Design Standards in section 26.412, and zoning standards in 26.710. The following memo outlines those proposed code amendments. OVERVIEW Typos, Errors and Omissions Given the length and complexity of the Land Use Code, it is inevitable that there are typos, incorrect cross-references, and missing words or references in the code. Staff keeps a running list of these errors, and the proposed ordinance includes fixes to those errors which are contained within areas of the code being amended in Ordinance 23. Lodge Definition, Auditing, and Growth Management As the line blurs between private residence, short-term vacation rental and lodge, it is increasingly important to have definitions and regulations that reflect AACP policies and Council priorities. To that end, staff proposes creating a second lodge use category, “Boutique Lodge,” to distinguish between lodge use types. Ordinance 23 outlines this approach, whereby Boutique Lodges are distinguished from more traditional Lodge uses by the number of rooms, the quantity and scale of on-site amenities and services, and the general character of the lodge use. Boutique lodge is defined as having between five and 10 units, limited on-site amenities P257 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 3 of 8 and is required to comply with the lodge audit standards. Lodge is defined as having more than 10 units, more on-site amenities, accessory uses, and is required to comply with the lodge audit requirements. The proposed lodge use categories make clearer distinctions between traditional lodges and those which may be residential uses occasionally made available as vacation rentals. The exceptions section of both definitions (Boutique Lodge and Lodge) include language which clarifies the relationship of lodge uses to other uses. Exceptions are established for single-family and duplex properties which may be available for short-term occupancy but the primary purpose is occupancy by an owner, rather than operation as a lodge. The ordinance also contains language exempting existing lodges established prior to the adoption of this ordinance from the new requirements. This language reflects the same exemption provided to residential uses in commercial zone districts where such uses are no longer permitted, and it ensures that any lodges established prior to adoption of Ordinance 23 are not bound by the limitations of being deemed a nonconforming use1. As a new use category, Boutique Lodge is proposed to be a conditional use in the CC, C-1, Mixed-Use, and Lodge zone districts. In discussion with P&Z on the proposed amendments, the commission was strongly in favor of making Boutique Lodge a conditional use, because the review process would afford P&Z and Council stronger tools to assess the intended use and appropriateness of proposed new Boutique Lodge uses in the zone districts where it is allowed. The commission expressed an interest in ensuring that they and Council are provided the tools to prevent the development of lodge uses which ultimately function as private residences. As a conditional use, Boutique Lodge would be subject to standards specific to the use in section 26.425.035. Those standards are based in part on the lodging sector policies in the AACP. Another factor in developing the standards was the operational and site-specific amenities unique to lodge uses. These were developed in consultation with local small lodge operators and the research into other communities’ approach to lodge regulations. The specifics in these conditional use standards reflect the operational characteristics and amenities listed in the revised use categories discussed above. P&Z would use these criteria, along with information provided by Boutique Lodge applicants, to assess the appropriateness of a conditional use for a proposed project. The revised use categories maintain much of the old approach to lodges, such as the relationship between lock-offs (keys) and lodge units, where each key constitutes a unit. The accessory uses remain the same, providing lodges the opportunity to include uses such as restaurant and retail when incidental to the primary use as a lodge. In addition to revising the definition of lodge, the proposed ordinance also augments the lodge audit provisions. The lodge audit requirements contained in the Miscellaneous Regulations of code section 26.575 are in place to provide the City with a tool to ensure that lodge uses operate according to the standards for lodge uses and the requirements of site specific approvals. There are a variety of lodge use types in Aspen, from traditional small lodges to timeshares and condo 1 This is the same approach used in the moratorium code amendments when new free-market residential was eliminated from all commercial zones. P258 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 4 of 8 hotels. Each was developed in response to consumer preferences at that time, which often means that the operations and occupancy of the lodges differ widely. The lodge audit provision ensures that, to the extent that the City requires information about the current operations of a lodge to inform a future land use decision, it has the tools to get that information. Staff proposes making the audit provision more robust by adding to the list of metrics which may be included in a lodge audit request. Those include employee information, contractor and service provider information, details on the types of guests booking the lodge rooms, how lodge rooms are booked, and ownership details to ensure that the lodge is not held and operated as a privately-owned residential property. There are also sections governing lodge development and uses which are proposed to be amended in 26.470 Growth Management Quota System. Section 26.470.080.D establishes a lodge affordable housing mitigation rate of 65%. But section 26.470.100.H provides a more detailed sliding scale of lodge mitigation rates depending on the average size of the units within the lodge development. While not contradictory, the language is confusing and is clarified through the proposed code amendments. The proposed ordinance also makes clear that the conversion of a lodge, residential or commercial to boutique lodge is subject to the full 65% affordable housing mitigation rate required of most use conversions, rather than the reduced rate provided as incentive to uses converting to traditional Lodge use. The intent of this change is to continue to provide that incentive to strengthen the City’s bed base with traditional lodge development, while ensuring that there is no incentive in place for Boutique Lodge conversions, which do not have the same impact on bed base. The proposed lodge amendments are intended to confirm that the lodge use category and definition reflect current lodge use patterns. The amendments also ensure that future proposed lodge uses meet the needs of the community in terms of adding to the bed base, providing a variety of lodging options and price points in accordance with the AACP. Additionally, these are consistent with the goals of the small lodge program. The small lodge policy resolution and ordinance are attached as Exhibits C and D for reference. To ensure that the draft lodge amendments reflect best practices in destination communities and are rooted in established precedent, the Planning staff conducted research into the various ways other destination communities define and regulate lodge uses. Specifically, Steamboat Springs, Breckenridge and Las Vegas, Nev. have regulations which informed the approach taken in Ordinance 23. All three communities make distinctions between various types of lodge uses based on a combination of room count, on-site amenities and accessory uses. For example, Steamboat Springs distinguishes between Hotel (20 or more rooms), Inn (five to eight rooms), and Lodge (nine to 19 rooms) uses, and regulates by zone district where the various use types are permitted. Similarly, Las Vegas makes distinctions between lodge uses by room count and on- site amenities, albeit on a much larger scale. Breckenridge makes distinctions based primarily on amenities and neighborhood impacts, with only small-scale lodge use types permitted in residential zone districts. In each case, each community has determined that making size and P259 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 5 of 8 amenity distinctions between lodge use types help achieve a healthy balance between lodging and other land uses relative to community goals. Use Categories and Zone Districts As part of the moratorium ordinances, Use Categories were developed to supplement the definitions in 26.100 and the zoning standards in 26.710. The use categories were designed to provide more guidance to planners and applicants as to the uses appropriate in various zone districts, as well as to provide a framework for assessing the appropriateness of proposed uses that are not explicitly called-out in the zone districts. The new use category system makes the zone districts more flexible in response to new industries and use types coming to the community. There are a handful of errors and omissions in various zone districts which staff has discovered since beginning to work with the new code language. In some cases, the zone districts in 26.710 do not list the use category, merely some specific uses, which are a holdover from the previous iteration of the code. Some of the changes planned for this aspect of the ordinance are: 1. Rewording the Permitted Uses section in the Commercial Lodge zone district to make clear those uses allowed as conditional uses on upper floors. 2. Remove Neighborhood Commercial and other outdated uses, and separate retail, restaurant and entertainment uses to reflect the new use categories in various zone district sections. 3. Fix missing references to Lodge and Hotel in Part 100, as well as updating the Lodge Use category description. 4. Differentiate between General and Specialty Retail and account for Formula Retail in those zone districts accidentally omitted from the original moratorium code amendments. There are other examples of this type of discrepancy between Part 100 and Part 700. The proposed ordinance fixes those errors. Parking Standards The moratorium included a complete re-write of the parking section of the Land Use Code, changing the City’s approach to parking by integrating mobility and transit policies and regulations into the parking requirements for commercial, lodge and mixed-use development. The most substantive change was converting requirements for hardscaped parking spaces for individual projects into parking impact units. A project’s parking impact unit requirement can be met through the provision of parking spaces, cash-in-lieu, mobility improvements, and off-site or shared parking. The parking ordinance addressed the parking requirements for commercial and lodge zone districts, but it failed to list all zone districts properly. Ordinance 23 proposes to simplify the table outlining zone district parking requirements by removing the specific list of “Remaining Zone Districts” in column one. Commercial Core and C-1 are specifically called out in column one. By referring to “remaining commercial and lodging zones” that category captures all of the necessary zones. From an administrative standpoint, this amendment will ensure that, to the P260 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 6 of 8 extent there are changes to the name or number of commercial and mixed-use zone districts, this table will not need to be amended to reflect those future changes. Commercial Design Review During the moratorium, P&Z and Council discussed including an administrative review level for minor changes to commercial buildings similar to the Certificate of No Negative Effect used for historic properties. This was inadvertently left out of the final commercial design ordinance. The primary reason for the review is properties without a previous Commercial Design review get pushed to a board level review, regardless of the extent of the changes, simply because they were built prior to 2007 and the advent of Commercial Design Guidelines. If a property owner in a pre-2007 building desired to make minor changes, such as replace a window with a door or add an awning, they get pushed to P&Z, despite the fact that these types of changes are minor. The proposed change would lower barriers for minor remodels, which Council expressed preferences for throughout the moratorium process, and reduce staff review time for such projects. Pedestrian Amenity When P&Z and Council supported the development of new Commercial Design Standards, one of the substantive changes included in the new standards was changing the term public amenity to pedestrian amenity. This semantic change reflects the use and intent of those spaces on private property in commercial areas: the spaces are created as open space within a development to enhance the pedestrian experience, not necessarily provide free access to the public in all circumstances. A good example of this functional distinction is an outdoor restaurant seating area. Outdoor seating on private property is accessible for customers only, but it meets the intent and standards for pedestrian amenity. There are various sections of the Land Use Code which reference public not pedestrian amenity, which need to be updated. Those are proposed to be addressed through this code amendment. Affordable Housing Standards With the reorganization of the growth management section in moratorium Ordinance 31, affordable housing was divided into two sections: those required for mitigation or for the development of Affordable Housing Credits, and voluntary units. Prior to the code amendment, all affordable housing units, required for mitigation or voluntary, had certain basic requirements including complying with the APCHA Guidelines, and providing 50% or more of the unit’s net livable area above grade. These are no longer listed as requirements for voluntary units, which was an error in the moratorium codification. Staff believes these are important qualities for all affordable housing units and were merely omitted as a requirement for voluntary units. The proposed ordinance restores those requirements. P&Z FEEDBACK: The Planning and Zoning Commission (P&Z) discussed the proposed code changes at their September 9, 2017 meeting. The discussion included all the key amendments outlined in this memo. P&Z focused their comments on the following areas: 1. Lodge Definition, Auditing and Growth Management: The commission was unanimous that the code should be amended to respond to changes in lodge use characteristic and ensure the long-term health of the lodge industry in Aspen. The commission cited a handful of specific land use cases in which they felt the heightened review provided by a conditional P261 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 7 of 8 use review process would have yielded a better project achieving more community goals with regard to lodge uses. They also supported the addition of Boutique Lodge to reflect the small lodge use proposals seen in recent years. P&Z also supported strengthening the requirements under the lodge audit provision to ensure that the community has access to the information needed to monitor lodge operations and ensure compliance with LUC requirements. 2. Use Categories and Zone Districts: P&Z supported the proposed amendments to Parts 100 and 700. The consensus was support for any amendment that ensures the proper functioning of the LUC and which meet the intent of the new code. 3. Parking: Commissioners were generally supportive of ensuring that the parking section functions and is easy for staff and applicants to understand. One commissioner noted that, given the ability for projects to use mobility improvements to meet parking impact requirements, it would be helpful to the commission to understand what those will be as part of an application. This comment is not addressed in the proposed ordinance, but staff has made a note of it for discussion with Council in future discussions of the parking regulations. 4. Commercial Design Review: There was unanimous support for the proposed administrative review process for small-scale commercial projects. It was noted that mimicking the process for HPC projects is a good process improvement, and incentivizing remodel activity over more impactful redevelopment is a good policy. 5. Pedestrian Amenity: The commission supported making the necessary amendments to correct references to public amenity. 6. Affordable Housing Standards: This issues was discovered by staff after the September 9th P&Z hearing, so no feedback was gathered from the commission on this specific issue. ADDITIONAL OUTREACH: The planning staff will continue to work with small lodge operators to ensure that the proposed changes to lodge standards support their businesses and City policies. Based on their continued feedback, minor changes to the lodge portion of the ordinance may be needed between first and second reading. POLICY RESOLUTION - RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to approve Resolution No. 126, Series 2017, approving a Policy Resolution regarding various moratorium-related amendments to Land Use Code.” FIRST READING - RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): “I move to approve Ordinance 23, Series 2017 upon first reading.” CITY MANAGER COMMENTS: ______________________________________________________________________________ ______________________________________________________________________________ P262 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 8 of 8 ATTACHMENTS: Resolution 126, 2017 Ordinance 23, 2017 Exhibit A – Staff Findings - Initiation Exhibit B – Staff Findings - Adoption Exhibit C – Small Lodge Program Policy Resolution Exhibit D – Small Lodge Program Ordinance Exhibit E – Lodge standards research Exhibit F – Small Lodge Program Participant Information P263 IX.a Post-Moratorium Clean-Up Ordinance Resolution No. 126, Series 2017 Page 1 of 3 RESOLUTION NO. 126 SERIES OF 2017 A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL TO AMEND THE LAND USE CODE WHEREAS, pursuant to Section 26.310.020(A), a Policy Resolution is required to initiate the process of amending the City of Aspen Land Use Code; and, WHEREAS, on January 23 and 30, 2017 Council approved Ordinances 29, 30, 31, 32 and 33, Series 2017 as part of the Aspen Area Community Plan-Land Use Code coordination process; and, WHEREAS, the aforementioned ordinances contained limited errors and omissions which require Council approval to remedy; and, WHEREAS, the 2012 Aspen Area Community Plan identifies the lodging sector of the economy as essential to ensuring the economic sustainability of the City; and, WHEREAS, the 2012 Aspen Area Community Plan includes policies related to the diversification and preservation of the lodging sector bed base in the City of Aspen; and WHEREAS, aspects of the definition and standards for lodge were not addressed in the 2016 Aspen Area Community Plan-Land Use Code coordination process; and, WHEREAS, the Community Development Department conducted research into best practices regarding the definition and permitting of lodge uses to aid in the drafting of revised regulations; and, WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development Department conducted Public Outreach with the Planning & Zoning Commission and Small Lodge Preservation Program participants regarding the amendments to the code; and, WHEREAS, amending the Land Use Code as described below will ensure the ongoing effectiveness and viability of the regulations within the City of Aspen Land Use Code to achieve City Council’s policy and regulatory goals; and, WHEREAS, City Council has reviewed the proposed code amendment policy direction, and finds it meets the criteria outlined in Section 26.310.040; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on September 25, 2017, the City Council approved Resolution No. 126, Series of 2017, by a vote of (____ to _____), requesting code amendments to the Land Use Code; and, P264 IX.a Post-Moratorium Clean-Up Ordinance Resolution No. 126, Series 2017 Page 2 of 3 WHEREAS, this Resolution does not amend the Land Use Code, but provides direction to staff for amending the Land Use Code; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Code Amendment Objective The objectives of these code amendments are to: 1. Ensure that the Moratorium ordinances deliver the policies identified in the Aspen Area Community Plan and regulatory outcomes identified by Council. 2. Remedy typographical errors and omissions from recently adopted legislation to ensure effective administration and clear comprehension of City regulations. 3. Improve the clarity and utility of the definitions and standards for lodge uses. 4. Strengthen Commercial Design Regulations by providing clear processes for administrative and non-administrative review of small-scale projects. Section 2: Code Amendment Direction from the Planning and Zoning Commission The Planning and Zoning Commission provided the following general direction in work sessions related to these code amendments: 1. Develop code amendments which clarify regulations and improve ease of use for city boards and commissions, staff, applicants, and the community. 2. Provide an administrative-level Commercial Design Review process for minor alterations of non-historic structures in-line with that provided for historic properties. 3. Revise regulations to provide for the ongoing health and vibrancy of the lodging sector. 4. Ensure that various lodge use types are accounted for in the Land Use Code. 5. Provide City Council and Boards and Commissions with the regulatory tools necessary to assess the appropriateness of lodge types in different zone districts. 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 resolutions or ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or 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. P265 IX.a Post-Moratorium Clean-Up Ordinance Resolution No. 126, Series 2017 Page 3 of 3 FINALLY, adopted this 25th Day of September, 2017. _______________________________ Steven Skadron, Mayor ATTEST: APPROVED AS TO FORM: _______________________________ ______________________________ Linda Manning, City Clerk James R True, City Attorney P266 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Staff Findings - Initiation Page 1 of 1 Exhibit A: Staff Findings 26.310.040. Amendments to the Land Use Code standards of review – Initiation In reviewing a request to pursue an amendment to the text of this Title, per Section 26.310.020(B)(2), Step Two – Public Hearing before City Council, the City Council shall consider: A. Whether there exists a community interest to pursue the amendment. Staff Findings: Staff believes there is a community interest in amending the Land Use Code (LUC) to address items remaining following the completion of the Aspen Area Community Plan-Land Use Code coordination process. Ordinances 29, 30, 31, 32 and 33, Series 2017 contained errors and omissions that impact the functionality and impact of the regulations. Amending the code to address those issues will improve land use process outcomes and administration. Additionally, amending the lodge use standards and definitions will provide greater clarity in zoning and land use processes. Staff finds these requirements to be met. B. Whether the objectives of the proposed amendment furthers an adopted policy, community goal, or objective of the City including, but not limited to, those stated in the Aspen Area Community Plan. Staff Findings: City Council directed staff in 2016 to amend the Land Use Code to ensure it results in development which reflects the policies in the Aspen Area Community Plan. The proposed amendments in Ordinance 23, 2017 address issues from previously adopted ordinances to achieve that Council goal. These amendments are supported by the following Aspen Area Community Plan Policies: · IV.4 Zoning and land use processes should result in lodging development that is compatible and appropriate within the context of the neighborhood, in order to: · Create certainty in land development. · Prioritize maintain our mountain views. · Protect our existing lodges. · Protect our small town community character and historical heritage. · Limit consumption of energy and building materials. · Limit the burden on public infrastructure and ongoing public operating costs. · Reduce short- and long-term job generation impacts, such as traffic congestion and demand for affordable housing. (Managing Growth, p. 25) · VIII.2 Create certainty in zoning and the land use process. (Managing Growth, p. 27) Staff finds these requirements to be met. C. Whether the objectives of the proposed amendment are compatible with the community character of the City and in harmony with the public interest and the purpose and intent of this Title. Staff Findings: The proposed policies and code amendments support and enhance community character by creating increased certainty in zoning and land use processes, improving the clarity and accuracy of the Land Use Code, and ensuring that lodge regulations reflect community needs and industry best practices. Further, the proposed code amendments ensure the ongoing effectiveness and viability of the City’s development and lodging regulations. Staff finds these requirements to have been met. P267 IX.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Page 1 of 1 MEMORANDUM TO: Mayor and City Council FROM: Justin Barker, Senior Planner Phillip Supino, Principal Long-Range Planner THRU: Jessica Garrow, Community Development Director James R. True, City Attorney RE: Policy Resolution: Resolution 126, Series 2017 – Post-Moratorium Clean-Up Ordinance First Reading: Ordinance 23, Series 2017 – Post-Moratorium Clean-Up Ordinance MEETING DATE: September 25, 2017 SUMMARY: The memorandum for the First reading of ordinance 23, 2017 is combined with the memorandum for Resolution 126, 2017. Please refer to the memo associated with the resolution for discussion of Ordinance 23, 2017. P268 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 1 of 13 ORDINANCE No. 23 Series of 2017 AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING CODE AMENDMENTS RELATED TO LAND USE CODE SECTION 26.100.104, DEFINITIONS, SECTION 26.100.110, USE CATEGORIES, CHAPTER 26.515, TRANSPORTATION AND PARKING MANAGEMENT, SECTION 26.575, MISCELLANEOUS REGULATIONS, CHAPTER 26.710, ZONE DISTRICTS, AND CHAPTER 26.470, GROWTH MANAGEMENT QUOTA SYSTEM, AND TO AMEND THE SMALL LODGE PRESERVATION PROGRAM ESTABLISHED IN ORDINANCE 15, SERIES 2015. WHEREAS, in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City Council of the City of Aspen directed the Community Development Department to craft code amendments to related to the definition of Lodge and the lodge audit standards, parking regulations, zone district standards, and changes to the Growth Management Quota system; and, WHEREAS, the code and ordinance amendments contained herein are a follow up to the 2016-2017 Land Use Moratorium, which included extensive Public Outreach pursuant to Section 26.310.020(B)(1); and, WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development Department conducted additional Public Outreach with the Planning & Zoning Commission, City Council, and Small Lodge Preservation Program participants regarding the definition of Lodge and the development of a lodge unit quota system; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on September 25, 2017, the City Council approved Resolution No. 126, Series 2017, by a ___ to ___ (_ – _) vote, requesting code amendments to the Land Use Code; and, WHEREAS, Aspen Area Community Plan policy IV.1 (Managing Growth for Community & Economic Sustainability) calls for regulations which minimize the further loss of lodging inventory; and WHEREAS, Aspen Area Community Plan policy IV.2 (Managing Growth for Community & Economic Sustainability) calls for regulations which replenish the declining bed base with an emphasis on a balanced inventory and diverse price points; and WHEREAS, Aspen Area Community Plan policy IV.4 (Managing Growth for Community & Economic Sustainability) states that zoning and land use processes should result in lodging development that is compatible and appropriate within the context of the neighborhood; and P269 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 2 of 13 WHEREAS, Aspen Area Community Plan policy VIII.2 (Managing Growth for Community & Economic Sustainability) requires there be certainty in zoning and the land use process; and WHEREAS, the Community Development Director has recommended approval of the proposed amendments to the City of Aspen Land Use Code; and WHEREAS, the Aspen City Council finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310 and that the approval of the amendments is consistent with the goals and elements of the Aspen Area Community Plan; and WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health safety and welfare; and NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN COLORADO THAT: Section 1: The following use category shall be added to Section 26.104.110, Use Categories: Boutique Lodge uses. Characteristics A building or parcel containing between six (6) and ten (10) individual units used for overnight lodging by the general public on a short-term basis for a fee, with or without kitchens within individual units, with or without meals provided and which has common reservation and cleaning services, combined utilities and on-site management and reception services. On-site, in-person management and reception services must be provided during normal business hours. Remote management and reception services may be provided all other times. For Lodges with flexible unit configurations, also known as “lock-off units,” each rentable division or “key” shall constitute a lodge unit for the purposes of this Title. Occupancy periods of a hotel or unit thereof by individuals or entities with any ownership interest in the hotel or unit thereof and any non-paying guests of such owners shall not exceed thirty (30) consecutive days or exceed a cumulative total of ninety (90) days within any calendar year for all such owners and non-paying guests. For the purposes of this section, if two or more units or fractional interests are owned by separate corporations, limited liability companies or partnerships with common owners or a common owner of all or any portion of the separate corporate, company or partnership interests, the unit or fractional interest shall be deemed in one ownership for the purposes of determining the occupancy limitations set forth herein. P270 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 3 of 13 Occupancy periods for person or entities with no ownership interest in a property (e.g. vacationers) shall be limited to thirty (30) consecutive days and ninety (90) days per calendar year. Examples Motels, hotels, and timeshare (fractional) and condo hotels. See section 26.590 for standards governing the establishment and management of timeshare (fractional) developments. Accessory Uses Accessory uses may include offices related to the operation of the primary use, maintenance facilities for the uses on the site, parking, and garbage, trash and recycling areas consistent with City Code Chapter 12.04. Restaurants and retail uses are allowed up to the FAR limits and in the locations prescribed by the applicable zone. Exceptions Single-family, duplex and multi-family dwelling units whose primary purpose is transient occupancy by an owner, but which are secondarily made available on a short-term basis as a vacation rental, are classified as residential uses. Single-family, duplex and multi-family dwelling units that are located on a parcel not adjacent to an associated lodge use are classified as residential uses. Units which are located within a mixed-use building where the primary use of the structure is commercial, service or office are classified as residential uses. Bed and breakfasts are classified as residential uses. Section 2. The following definition in Section 26.104.100, Definitions, shall be deleted: Lodge: Same as Hotel. Section 3: The use category Hotel (Lodge) in Section 26.104.110, Use Categories, shall be deleted and replaced with the following: Lodge uses. Characteristics A building or parcel containing at least eleven (11) individual units used for overnight lodging by the general public on a short-term basis for a fee, with or without kitchens within individual units, with or without meals provided and which has common reservation and cleaning services, combined utilities and on-site management and reception services. On-site, in-person management and reception services must be provided during normal business hours. Remote management and reception services P271 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 4 of 13 may be provided all other times. To qualify as a Lodge use, the property must have at least three (3) of the following amenities on-site and proportional to the size of the development: · Commercial kitchen or in-house food service, · Fitness or gym facilities, · Pool, hot tub, sauna, or spa facilities, · Lounge, · Bar or restaurant, · Retail or services (such as guide services, concierge, equipment rental or repair, spa or beauty facility), · Meeting, conference, entertainment, or ballroom facilities. For Lodges with flexible unit configurations, also known as “lock-off units,” each rentable division or “key” shall constitute a lodge unit for the purposes of this Title. Occupancy periods of a hotel or unit thereof by individuals or entities with any ownership interest in the hotel or unit thereof and any non-paying guests of such owners shall not exceed thirty (30) consecutive days or exceed a cumulative total of ninety (90) days within any calendar year for all such owners and non-paying guests. For the purposes of this section, if two or more units or fractional interests are owned by separate corporations, limited liability companies or partnerships with common owners or a common owner of all or any portion of the separate corporate, company or partnership interests, the unit or fractional interest shall be deemed in one ownership for the purposes of determining the occupancy limitations set forth herein. Occupancy periods for person or entities with no ownership interest in a property (e.g. vacationers) shall be limited to thirty (30) consecutive days and ninety (90) days per calendar year. Examples Motels, hotels, timeshare (a.k.a. fractional) units and timeshare developments, and hostels. See section 26.590 for standards governing the establishment and management of timeshare (fractional) developments. Accessory Uses Accessory uses may include offices related to the operation of the primary use, maintenance facilities for the uses on the site, parking, and garbage, trash and recycling areas consistent with City Code Chapter 12.04. Restaurants and retail uses are allowed up to the FAR limits and in the locations prescribed by the applicable zone. Exceptions Boutique Lodges. Single-family, duplex and multi-family dwelling units whose primary purpose is transient occupancy by an owner, but which are P272 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 5 of 13 secondarily made available on a short-term basis as a vacation rental, are classified as residential uses. Single-family, duplex and multi-family dwelling units that are located on a parcel not adjacent to an associated lodge use are classified as residential uses. Multi-family units which are located within a mixed-use building where the primary use of the structure is commercial, service or office are classified as residential uses. Bed and breakfasts are classified as residential uses. Section 4: Section 26.710.140.C, Zone Districts, Commercial Core (CC), Conditional uses, shall be amended by the addition of the following: 5. Boutique lodge. Section 5: Section 26.710.150.C, Zone Districts, Commercial (C-1), Conditional uses, shall be amended by the addition of the following: 5. Boutique lodge. Section 6: Section 26.710.180.C, Zone Districts, Mixed-Use (MU), Conditional uses, shall be amended by the addition of the following: 4. Boutique Lodge. Section 7: Sections 26.710.190.C, Zone Districts, Lodge (L), Conditional uses, shall be amended by the addition of the following: 11. Boutique lodge. Section 8: Section 26.710.190.D.11.a.1), Zone Districts, Lodge (L), Dimensional requirements, Floor area ratio (FAR), shall be deleted and replaced with the following: 1. General Retail and Specialty Retail uses; restaurant, bar and entertainment uses; service uses; arts, assembly, cultural, civic and community uses; public uses; academic uses; child care centers: 0.25:1, which may be increased to 0.5:1 by special review, pursuant to Section 26.430. [subsections 2-5 are not amended] Section 9: Sections 26.710.200.B, Zone Districts, Commercial Lodge (CL), Permitted uses, shall be deleted and replaced with the following: P273 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 6 of 13 B. Permitted uses. The following uses are permitted as of right in the Commercial Lodge (CL) Zone District: 1. Uses allowed in basement and ground floors: Lodging uses, conference facilities, restaurant, bar and entertainment uses, office uses, service uses, arts, assembly, cultural, civic and community uses, recreational uses, academic uses, and child care center. Uses and facilities necessary and incidental to uses on Upper Floors. Parking shall not be allowed as the sole use of the ground floor. Automobile drive-through service is prohibited. 2. Uses allowed on upper floors: Lodging uses, exempt timesharing, offices and activities accessory to timeshare unit sales (see Chapter 26.590), accessory uses, storage accessory to a permitted use, affordable multi-family housing, free-market multi-family housing, vacation rentals. (Food service for on-site lodge guests is an accessory use.) Section 10: Sections 26.710.200.C, Zone Districts, Commercial Lodge (CL), Conditional uses, shall be deleted and replaced with the following: C. Conditional uses. The following uses are permitted as conditional uses in the Commercial Lodge (CL) Zone District, subject to the standards and procedures established in Chapter 26.425: 1. The following uses may be located only on upper floors: general retail and specialty retail uses, restaurant, bar and entertainment uses, service uses, office uses, arts, assembly, cultural, civic, and community uses, public uses, academic uses or child care centers. 2. Commercial parking facility, pursuant to Chapter 26.515. 3. Formula uses. 4. Boutique lodge. Section 11: Sections 26.710.200.D.11.a, Zone Districts, Commercial Lodge (CL), Dimensional requirements, Floor area ratio (FAR), shall be deleted and replaced with the following: a. Commercial uses; arts, assembly, cultural, civic and community uses; public uses; academic uses; child care centers; commercial parking facility: 1:1. Section 12: Section 26.470.070(G), Growth Management Quota System, Exempt development, Remodeling or replacement of existing lodge development, shall be deleted and replaced with the following: G. Remodeling or replacement of existing lodge development. Remodeling or replacement of existing hotel/lodge buildings and portions thereof shall be exempt from the provisions of growth management, provided that demolition is not triggered, no additional net leasable square footage or lodge units are created, and there is no change in use. However, reduction of lodging units shall require approval pursuant to Section 26.470.110(F). If redevelopment involves an expansion of lodge units, only the replacement of existing lodge units/keys shall be exempt. P274 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 7 of 13 Existing, prior to demolition, net leasable square footage and lodge units shall be documented by the City Zoning Officer prior to demolition. Also see definition of demolition, Section 26.104.100. Section 13: Section 26.470.080.D.2 and Section 26.470.080.D.7, Growth Management Quota System, General review standards, shall be deleted and replaced with the following: 2) For lodge development, sixty-five percent (65%) of the employees generated by the additional lodge pillows, according to Section 26.470.050.B, Employee generation rates, shall be mitigated through the provision of affordable housing. For the redevelopment or expansion of existing lodge uses, see section 26.470.100.H. 7) For all affordable housing units that are being provided as mitigation pursuant to this chapter or for the creation of a Certificate of Affordable Housing Credit pursuant to Chapter 26.540, or for any other reason: [subsections a-g are not amended] Section 14: Section 26.470.100.H.3, Growth Management Quota System, Planning and Zoning Commission applications, Expansion or new lodge development, shall be deleted and replaced with the following: 3) The conversion of lodge, residential or commercial uses to boutique lodge is subject to the mitigation standards for commercial uses as provided for in section 26.470.080.D. Section 15: Section 26.470.110, Growth Management Quota System, City Council applications, shall be amended to add Subsection 26.470.110.F, Reduction in lodge units, as follows: F. Reduction in lodge units. The reduction of units in an existing or approved lodge or Boutique lodge shall be reviewed pursuant to the standards listed below. Review shall be by City Council pursuant to Section 26.470.060(C) Step Two. Properties ceasing all lodging operations shall not be subject to this review. Physical changes to the property may be required for compliance with zoning limitations. a. The project shall comply with the review standards outlined in Section 26.425.035, Conditional Use – Boutique Lodge – but shall not be subject to a Conditional Use review unless required by the allowed uses in the zone district. b. The proposed reduction will likely result in a product that meets customer demand. The lodge may provide documentation to indicate their targeted consumer’s lodging expectations. c. The proposed reduction will not likely result in the property being used as a private residence. The city may request assurances that the lodge is not being converted to a private home through a development agreement, or the like. P275 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 8 of 13 Section 16: Chapter 26.425 Conditional Uses, shall be amended to add Section 26.425.035, Standards for Boutique Lodge uses: Sec. 26.425.035 Standards for Boutique Lodge uses. When considering a development or change of use application to create a Boutique Lodge use, in addition to the standards in Section 26.425.050, the Planning and Zoning Commission shall consider whether all of the following standards are met, as applicable. A. General Requirements. The proposed use meets the requirements of Boutique Lodge as provided in Section 26.100.104; and B. Bed-base diversification. The proposed use will support the lodging sector by contributing to and diversifying the bed base in the City of Aspen; and C. On-site amenities. The development contains a sufficient level of on- or off-site recreational facilities (such as exercise equipment, a pool or spa or similar facilities) and other amenities (such as a lobby, meeting spaces and similar facilities) to serve the lodge occupants. The extent of the facilities provided should be proportional to the size of the development. The types of facilities should be consistent with the planned method and style of operating the development. D. Management plan. A property management plan shall be submitted for any Boutique Lodge that is part of a mixed-use parcel (i.e. there are more than the Boutique Lodge use on the parcel). A fair procedure shall be established for the estate owners to review and approve any fee increases which may be made throughout the life of the timeshare development, to provide assurance and protection to timeshare owners that management/assessment fees will be applied and used appropriately. The applicant shall also demonstrate that there will be a reserve fund to ensure that the proposed development will be properly maintained throughout its lifetime. E. Décor. The Boutique Lodge units should use a standard palate of décor that has been established for the property. F. Signage. A Boutique Lodge shall have a wayfinding or other identification sign so the general public can find the Boutique Lodge. A signage plan, meeting the requirements of Chapter 26.510, Signs, shall be included in the application. G. No-residential uses. Based on floor plans and room configurations, the property will not function as a residential unit. H. Development Documents. The project shall be required to enter a development agreement, pursuant to Chapter 26.490, Approval Documents, that addresses the ongoing operation as a Boutique Lodge. P276 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 9 of 13 Lodge uses which do not meet the definition of Boutique Lodge are permitted and not subject to the requirements of section 26.425.035 Standards for Boutique Lodge Uses if they were legally established prior to and inventoried in Ordinance 15, Series 2015. Section 17: Section 26.575.210, Lodge Occupancy Auditing, shall be deleted as replaced with the following: Sec. 26.575.210 Lodge occupancy auditing The Community Development Director shall be authorized to require periodic operational audits of lodge developments to ensure compliance with the Land Use Code and requirements for lodge operations. This audit may include, but is not limited to: · an occupancy report of the lodge and individual units therein; · whether occupants for each unit were owners, owners’ guests, or members of the public; · whether occupants registered as individuals or a business structure (e.g. Limited Liability Company); · an ownership report of all lodge or fractional units, including a report of the names of all owners of the corporate, company or partnership interests in any entity owning a lodge or fractional unit. · the manner in which rooms are reserved by non-owners or owner guests; · room and unit rate schedules; · the manner in which short-term occupancies are marketed and managed; · physical aspects of the operation, such as the number of units and pillows in the lodge, the number of employees employed on site, the number of affordable housing units provided on site, accessory uses, units and amenities on site and the number of parking spaces provided on site, and the like; · the dimensional characteristics of the lodge; · an inventory of associated uses, properties and amenities on or off-site and made available to occupants; and, · any additional conditions of approval or data and characteristics which may indicate the manner in which the lodge is used. The Community Development Director may request that information be provided in a specific time frame, and may request a site inspection as part of the audit. The lodge audit shall be in the format determined by the Director. Property owners may request that certain information, such as marketing strategies or rate schedules, be held in confidence by the City. Section 18: Ordinance 15, Series 2015 Section 2, Applicability and Timeframe, shall be amended as follows: A new small lodge is eligible to participate in the program if it meets all of the following criteria: 1. Contains between ten (10) and fifty (50) units; and 2. Is located in the Lodge (L), Commercial Lodge (CL), Lodge Preservation Overlay (LP), of Lodge Overlay (LO) zone districts. P277 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 10 of 13 Section 19: The following shall be added to Ordinance 15, Series 2015 Section 2, Applicability and Timeframe: New Boutique Lodge uses are not eligible to participate in the Small Lodge Preservation Program. The benefits afforded to lodges participating in the Small Lodge Preservation Program may not be extended to Boutique Lodge uses. Properties which convert from Lodge to Boutique Lodge shall forfeit their participation in the Small Lodge Preservation Program. Any financial benefits provided to such properties within 18 months prior to the conversion from Lodge to Boutique Lodge shall be refunded to the City of Aspen. A new small lodge is eligible to participate if not a Boutique Lodge use, contains fewer than fifty (50) units and is located in the L,, CL, LP or LO zone district. Section 20: Table 26.515-2 Parking Requirements of Zone District shall be deleted and replaced with the following: Table 26.515-2 - Parking Requirements by Zone District Location Options for Meeting Parking Requirements Additional TIA Credits (Projects Subject to TIA) Mobility Commitments (Projects Exempt from TIA) On-Site Parking Provision Cash-In-Lieu of Parking Fee Payment P278 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 11 of 13 Commercial Core (CC) and Commercial-1 (C-1) zones Up to 2 Additional TIA Credits Up to 2 Mobility Commitments * Up to 20% of the Requirement. Up to 100% of the requirement if subgrade. Up to 100% of the Requirement Remaining Commercial and Lodging Zones 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) At least 60% and up to 100% of the Requirement Up to 40% of the Requirement Remaining Infill Area 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) Up to 100% of the Requirement Up to 100% of the Requirement All other Areas 1 Additional TIA Credit (equal to 1 Parking Unit) 1 Mobility Commitment (equal to 1 Parking Unit) At least 60% and up to 100% of the Requirement Up to 40% of the Requirement Section 21: The following shall be added to Section 26.412.090, Commercial Design Review: 3. Administrative review. The Community Development Director may approve a Commercial Design Review if it is determined that the proposed work has no adverse effect on the physical appearance or character defining features of a development. An application for administrative review may be approved if it meets the following requirements: a. It is deemed that the activity is an eligible work item and meets the Commercial, Lodging, and Historic District Design Standards and Guidelines; and, b. Any modifications to the proposed work requested by the Community Development Director are agreed to by the owner/applicant. The following work shall be considered an eligible work item for an administrative review approval: a. Replacement or repair of architectural features which creates no change to the exterior physical appearance of the building or structure. b. Installation of awnings or similar attachments provided no significant feature is damaged, removed, or obscured by the installation and that do not reduce or enclose approved Pedestrian Amenity space. c. Mechanical equipment or accessory features that have no impact on the character defining features of the building or structure, and that meet the requirements of Section 26.435.050, if applicable. P279 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 12 of 13 d. Alterations to no more than two (2) elements of a street-facing facades. e. Installation of site improvements, such as fences, walkways, patios, or similar features that do not reduce or enclose approved Pedestrian Amenity space. Section 22: All references in Title 26 to “Public Amenity” shall be changed to “Pedestrian Amenity”. Section 23: All references in Title 26 to “Chapter 26.515, Off-Street Parking,” shall be changed to “Chapter 26.515, Transportation and Parking Management.” Section 24: Any scrivener’s errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Section 25: Effect Upon Existing Litigation. This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 26: Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 27: Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty (30) days following final passage. Section 28: Public Notice A public hearing on this ordinance shall be held on the 28th day of November, 2016, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the , 2017. Attest: _____________________________ ____________________________ Linda Manning, City Clerk Steven Skadron, Mayor FINALLY, adopted, passed and approved this , 2017. P280 X.a Ordinance 23, 2017 Post-Moratorium Clean-Up Ordinance Page 13 of 13 Attest: _____________________________ ____________________________ Linda Manning, City Clerk Steven Skadron, Mayor Approved as to form: _____________________________ James R. True, City Attorney P281 X.a September 25, 2017 Policy Resolution and First Reading Post-Moratorium Clean-Up Ordinance Staff Findings - Adoption Page 1 of 1 Exhibit A: Staff Findings 26.310.050. Amendments to the Land Use Code standards of review – Adoption In reviewing a request to pursue an amendment to the text of this Title, per Section 26.310.020(B)(3), Step Three – Public Hearing before the City Council, the City Council shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this title. Staff Findings: There are no known conflicts between the amendments proposed in this ordinance and the City of Aspen Land Use Code. Staff finds these requirements to be met. B. Whether the objectives of the proposed amendment achieves the policy, community goal, or objective cited as reasons for the code amendment or achieves other public policy objectives. Staff Findings: These amendments achieve the following Aspen Area Community Plan Policies: · IV.4 Zoning and land use processes should result in lodging development that is compatible and appropriate within the context of the neighborhood, in order to: · Create certainty in land development. · Prioritize maintain our mountain views. · Protect our existing lodges. · Protect our small town community character and historical heritage. · Limit consumption of energy and building materials. · Limit the burden on public infrastructure and ongoing public operating costs. · Reduce short- and long-term job generation impacts, such as traffic congestion and demand for affordable housing. (Managing Growth, p. 25) · VIII.2 Create certainty in zoning and the land use process. (Managing Growth, p. 27) Staff finds this requirement to be met. C. Whether the proposed amendment is compatible with the community character of the City and is in harmony with the public interest and the purpose and intent of this Title. Staff Findings: The proposed policies and code amendments support and enhance community character by creating increased certainty in zoning and land use processes, improving the clarity and accuracy of the Land Use Code, and ensuring that lodge regulations reflect community needs and industry best practices. Further, the proposed code amendments ensure the ongoing effectiveness and viability of the City’s development and lodging regulations. Staff finds these requirements to have been met. P282 X.a Resolution No 136, Series 2014 Page 1 of 4 RESOLUTION NO. 136, (SERIES OF 2014) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REQUESTING CODE AMENDMENTS RELATED TO LODGING IN ASPEN. WHEREAS, pursuant to Section 26.310.020(A), the Community Development Department received direction from City Council to explore code amendments related to the creation of a lodging incentive program to bolster the bed base in both traditional hotel units and condominium units; and, WHEREAS, the Community Development Department conducted existing conditions research to understand Aspen’s existing lodge inventory, the occupancy and rate characteristics of Aspen’s bed base, the economics of upgrading, expanding, or developing lodge products, the latest visitor demographics, and the types of lodging product most in demand; and, WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development Department conducted extensive Public Outreach with community members, the Aspen Chamber Resort Association, condominium and lodging owners, managers, and stakeholders, the Planning & Zoning Commission, the Historic Preservation Commission, and City Council regarding a lodge incentive program code amendment; and, WHEREAS, implementing a Lodge Incentive Program that bolsters the bed base has been a City Council Top Ten Goal for two (2) years; and, WHEREAS, the Community Development Director recommended adoption of a Lodge Incentive Program; and, WHEREAS, City Council approved a Lodge Incentive Ordinance (Ordinance 19, Series 2014) on August 11, 2014; and, WHEREAS, City Council voted to rescind Ordinance 19, Series 2014 on August 18, 2014, and directed staff to conduct additional outreach on the topic and return with a new Policy Resolution; and, WHEREAS, City staff conducted additional outreach in the form of small group meetings, online surveys, and a telephone survey, receiving comments from over 400 people; and, WHEREAS, the Community Development Director recommended adoption of code amendments to assist lodges and condominiums available for short-term rentals; and, WHEREAS, City Council has reviewed the proposed code amendment policy direction, and finds it meets the criteria outlined in Section 26.310.040; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on December 1, 2014 and continued to December 8, 2014, the City Council approved Resolution No. 136, Series of 2014, by a five to zero (5 – 0) vote, requesting code amendments to implement a Lodge Incentive Program; and, P283 X.a Resolution No 136, Series 2014 Page 2 of 4 WHEREAS, this Resolution does not amend the Land Use Code, but provides direction to staff for amending the Land Use Code; and, WHEREAS, the City Council finds that this Resolution implements the City’s goals related replenishing and diversifying the lodging inventory, as articulated in the 2012 Aspen Area Community Plan; and WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Code Amendment Objectives The goals and objectives of the code amendments are to: a. Recognize that the bed base, particularly the small lodges, is a critical part of the City’s overall infrastructure. b. Ensure the Aspen bed base provides a number, diversity, and quality of lodging options to be attractive and welcoming to the next generation of visitors. c. Encourage investment in existing lodges and short-term rental condominiums to meet visitor expectations. d. Strive for lodging being the “highest and best” use in the lodging zone. e. Make sure the bed base continues to be compatible with community character. f. Focus on small and economy/moderate lodge investment first. g. Reduce or eliminate city process and fee barriers to investment in existing lodge and short-term condominium properties. Section 2: Small Lodges The lodge code amendments should reduce improvement barriers for small lodges by offering: a. Free building code and energy audits, b. Building permit and impact fee reductions for remodels and minor expansions, c. An “express lane” in building and planning, d. Lodge ombudsman to assist small lodges through the process, e. Possible need-based loans for small lodges, f. Possible grants for small lodges, and g. Free or reduced cost street parking passes. Section 3: Height No changes to allowed heights shall be proposed as part of the lodge code amendments. Section 4: Parking No changes to required parking shall be proposed as part of the lodge code amendments. Section 5: Floor Area The existing overall floor area caps in all the zone districts shall be unchanged in the lodge code amendments, with some minor changes in the allowed floor area for lodge uses. For instance, increasing the allowed lodge floor area in all zone districts to the same as the overall floor area cap to make it easier for a property owner to build an entire lodge project. These changes to floor area caps shall not affect allowed heights. P284 X.a Resolution No 136, Series 2014 Page 3 of 4 Section 6: Maximum Residential Unit Size Maximum unit sizes for residential units shall remain unchanged in the lodge code amendments. Unit size limitations should be added for vacation residences. Section 7: Maximum Lodging Unit Size The lodge code amendments should include lodge unit sizes caps of 1,500 sq ft with the ability to expand beyond that through a Special Review. Section 8: Condominium Units The lodge code amendments should include implementation of an “express lane” in building and planning for small condominium projects and fee rebates for building permit and impact fees for condominium units that are available for short-term rentals. This must include adequate assurance that the rental requirements will be met. Section 9: Vacation Residences The lodge code amendments should include the creation of a new land use type called Vacation Residences that are required to be available for short-term rentals at least six (6) months in a calendar year. This must include adequate assurance that the rental requirements will be met. Section 10: City Process and Fees The lodge code amendments should simplify the city process, including: Timeshare regulations, Growth Management, and possible amendments to Multi-Family Replacement. In addition, create an “express lane” for building permits and land use review for small projects. The code amendments should include analysis and accounting of the costs of enhanced services and fee reductions to ensure the annual budget and service levels reflect community goals. A sunset provision for fee reductions should be included. Section 11: Affordable Housing Requirements The lodge code amendments should not intend to reduce affordable housing requirements “across the board,” but some flexibility for small lodge and condominiums may be necessary. Section 12: This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the resolutions or ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 13: If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted this 8th day of December 2014. _______________________________ Steven Skadron, Mayor P285 X.a Resolution No 136, Series 2014 Page 4 of 4 ATTEST: APPROVED AS TO FORM: _______________________________ ______________________________ Linda Manning, City Clerk James R True, City Attorney P286 X.a ORDINANCE No. 15 Series of 2015) AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING A PROGRAM TO ASSIST SMALL LODGES TO CONTINUE OPERATING AS SMALL LODGES. WHEREAS, pursuant to Section 26.310.020(A), the Community Development Department received direction from City Council to explore code amendments related to the creation of a small lodge preservation program to bolster the bed base in both traditional hotel units, particularly in small lodges; and, WHEREAS, the Community Development Department conducted existing conditions research to understand Aspen's existing lodge inventory, the occupancy and rate characteristics of Aspen's bed base, the economics of upgrading, expanding, or developing lodge products, the latest visitor demographics, and the types of lodging product most in demand; and, WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development Department conducted extensive Public Outreach with community members, the Aspen Chamber Resort Association,condominium and lodging owners, managers, and stakeholders, the Planning & Zoning Commission, the Historic Preservation Commission, and City Council regarding lodging; and, WHEREAS, pursuant to Section 26.310.020(B)(2), during a duly noticed public hearing on December 1, 2014 and December 8, 2014, the City Council directed staff to draft a code amendment to assist small lodges to continue operating as small lodges; and, WHEREAS, the Community Development Director has recommended approval of the proposed amendments to Title 26, the City of Aspen Land Use Code to implement a small lodge assistance program; and, WHEREAS, the Aspen City Council has reviewed the proposed code amendments and finds that the amendments meet or exceed all applicable standards pursuant to Chapter 26.310.050; and, WHEREAS,the City Council finds that this Ordinance implements the City's goals related replenishing and diversifying the lodging inventory, as articulated in the 2012 Aspen Area Community Plan; and WHEREAS,the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare; and NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1: Code Amendment Obiectives The goals and objectives of the code amendment, as outlined in the Policy Resolution, are to: Small Lodges Preservation Program Ordinance 15, Series 2015 Pagel of 5 P287 X.a a. Recognize that the bed base, particularly the small lodges, is a critical part of the City's overall infrastructure. b. Ensure the,Aspen bed base provides a number, diversity, and quality of lodging options to be attractive and welcoming to the next generation of visitors. c. Encourage investment in existing lodges to meet visitor expectations. d. Strive for lodging being the "highest and best"use in the lodging zone. e. Make sure the bed base continues to be compatible with community character. f. Focus on small and economy/moderate lodge investment first. g. Reduce or eliminate city process and fee barriers to investment in existing lodge properties. Section 2: Applicability and Timeframe The Small Lodge Preservation Program (hereinafter "Program") is established for a period of five (5) years from the date of passage of this Ordinance. During that time, the Program is available to the existing small lodges listed below, only for such time as they remain small lodges: Hotel Address Annabelle Inn 232 W Main St Aspen Mountain Lodge 311 W Main St Boomerang Lodge 500 W Hopkins Ave Chalet Lisl 100 E Hyman Ave Hearthstone House 134 E Hyman Ave Hotel Durant 122 E Durant Ave Molly Gibson 101 W Main St Hotel Aspen 110 W Main St Mountain Chalet 333 E Durant Ave Snow Queen Lodge 124 E Cooper Ave St. Moritz Lodge 334 W Hyman Ave Tyrolean Lodge 200_W Main St A new small lodge is eligible to participate in the program if it meets all of the following criteria: 1. Contains fifty (50) or fewer rooms, and 2. Is located in the Lodge (L), Commercial Lodge (CL), Lodge Preservation Overlay (LP), or Lodge Overlay (LO) zone districts. City Council, at its sole discretion, may amend the lodges eligible for or extend the timeframe of the Small Lodge Preservation Program by Resolution. Section 3: Small Lodge Planning Assistance Planning assistance is available to assist the small lodges through the City of Aspen land use and building permit processes, as well as identifying non-city programs, such as CORE grants, that may be of assistance to the small lodge. Small Lodges Preservation Program Ordinance 15, Series 2015 Page 2 of 5 P288 X.a The planning assistance described above is dependent on the funding available to provide the assistance. Section 4: Express Lane for Land Use Reviews Small lodges are eligible for expedited review of all land use cases. A small lodge requesting expedited review shall include the request in their land use application, and shall be scheduled for the initial public hearing as quickly as possible. This expedited review shall in no way waive any application requirements, including that the project application be complete prior to scheduling of any public hearings. Section 5: Express Lane for BuildinjZ Permit Reviews Small lodges are eligible for expedited review of all building permits. Complete submittals for small lodge projects will be reviewed ahead of standard building permit submittals. Standard projects do not include affordable housing projects, phased permits, and other projects the Building Department defines as "non-standard." Resubmittals for small lodge projects will be queued with all other permits. The queuing described above is dependent on the funding available to review small lodge projects ahead of standard projects. Section 6: Building Code Assessment Small lodges are eligible for a free building code assessment to identify areas of the lodge that could or should be upgraded to current building codes. The assessment will be completed by a third party, and reimbursed by the city up to $0.50 per square foot. The building code assessments described above are dependent on the funding available to provide the additional subsidies. Section 7: Small Lodge Energy Efficiency Program Small lodges are eligible for free energy audits and additional subsidies for energy efficiency improvements through a new Small Lodges Energy Program. This program would provide subsidies for,energy audits and improvements after the existing CORE and City of Aspen Energy Efficiency subsidies are applied. Energy improvements up to $20,000 are eligible for a combined CORE, City of Aspen Energy Efficiency Program, and Small Lodges Energy Efficiency Program subsidy, up to 100% of the project cost. Energy Improvements above $20,000 are eligible for a combined 50% subsidy. The energy benefits described above are dependent on the funding available to provide the additional subsidies. Section 8: Small Lodges Building Permit Fee Discounts Small lodges are eligible for a discount on building permit fees. Chapter 2.12.100 of the Municipal Code is hereby amended to add the following language: Small Lodges Preservation Program Ordinance 15, Series 2015 Page 3 of 5 P289 X.a Community Purpose Discount Programs Applications for Building Permits for Small Lodges, as defined in Ordinance 15, Series 2015, are eligible for reduced building permit review fees based on the following schedule. To be eligible for the discount, all lodges must enter into an agreement with the City stating that the property will remain a lodge for a minimum number of years, and that if the use changes during that time period the property shall owe the City 100% of the building permit fees. The reductions shall apply to Plan Check, Energy Code, Zoning Review, Engineering Review, Utility Review, CMP, and Building Permit, Fees. of Building Length of Category of Work Permit fee City charged Agreement Minor interior upgrade (i.e. paint, carpet, light fixtures) 25%5 Years Minor exterior upgrade (i.e. new windows, new o paint/exterior materials) 25/0 5 years Major interior upgrade A (i.e. remodel units, including 50%10 years bathrooms) Major interior upgrade B (i.e. remodel common areas and 50%10 years any kitchen/food service facilities) Redevelopment or Major Expansion 75%20 years Section 9: Improvements.in the Right-of-Way The cost, as approved by the City, of any required public improvements located in the public right-of-way, such as curb & gutter, sidewalks, and street trees that are related to the Small Lodge Preservation Program shall be reimbursed by the City. The Small Lodge shall be responsible for the design and completion of the improvements, and the City shall reimburse the Small Lodge for the cost of the improvements following final Certificate of Occupancy. The allowable reimbursement is provided for in the Small Lodge Right-of-Way Improvement estimate schedule on file with the City of Aspen Engineering Department. This schedule will be updated on an annual basis to account for construction inflation costs. Section 10: Costs associated with the program All costs to the City for all program elements outlined herein are subject to available funds. Section 11: Budget authority City Council hereby grants budget authority of $5,000 for the Small Lodge Planning Assistance Section 3), and $20,000 for Small Lodge Energy Efficiency Program (Section 7). Money will be formally allocated during the Fall 2015 Supplemental Budget. All other programs shall have no available funding for 2015. Section 12: Any scrivener's errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Small Lodges Preservation Program Ordinance 15, Series 2015 Page 4 of 5 P290 X.a Section 13: Effect Upon Existiniz Litization. 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 14: Severability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 15: Effective Date. In accordance with Section 4.9 of the City of Aspen Home Rule Charter, this ordinance shall become effective thirty (30) days following final passage. Section 16: A public hearing on this ordinance shall be held on the 27th day of May, 2015., at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 27th day of April, 2015. At st: inda Manning, City Cl rk Steven Skadr n,MAyor FINALLY, adopted, passed and approved this 27th day of May,2015. Att t: y si, Linda Manning, City Cler Steven Skad on,Mayor Approved as to form: mes.R. True, City Attorney Small Lodges Preservation Program Ordinance 15, Series 2015 Page 5 of 5 P291 X.a Exhibit E Lodging use type definitions from other communities Steamboat, Colo. Hotel. A building used for temporary accommodation that includes the business of renting out no fewer than twenty (20) guestrooms and where payment for occupancy is on a daily or weekly basis. The hotel use may include amenity areas, for the public or guests, such as a lobby, restaurant, assembly, indoor recreation, entertainment, personal service and retail. Inn. A building used for temporary accommodation that includes the business of renting out no fewer than five (5) and no greater than eight (8) guestrooms for the temporary lodging of paying guests and the use of common living and dining areas. Lodge. A building used for temporary accommodation that includes the business of renting out no less than nine (9) and no greater than (20) guest rooms, where payment for occupancy is on a daily or weekly basis. The lodge use may include common lobby, indoor recreation, living and dining areas. Breckenridge, Colo. Chalet House: A building or structure of single-family or duplex residential character: a) which is used as temporary housing for a tour group for a period of not less than two (2) nor more than thirty (30) consecutive nights, b) which has a manager or employee who provides meals for tour group members, and other management services such as housekeeping and ground transportation, c) the operation of which does not require the provision of additional on site parking spaces beyond that normally required for a single- family residence, and d) the appearance of which has not been altered (either on the interior or exterior) so as to change the single-family residential character of such building or structure. "Tour group" means a group of not less than two (2) persons who have made advance reservations for the use of the chalet house through a bona fide tour operator or tour company. To qualify as a tour group, the travel package must include ground transportation to and from the town such that the use of a private motor vehicle (whether owned or rented) by tour group members is not reasonably anticipated by the tour group operator. "Tour operator or tour company" means a person who has the legal right to exclusive possession of the chalet house pursuant to a lease or similar agreement with the owner of the property upon which the chalet house is located. Condominium/Hotel: A multi-unit structure in which units may be individually owned and which provides on the site of the development a centralized management structure incorporating the following features: a) a twenty four (24) hour front desk check in operation, b) a central phone system to individual rental units, c) meeting rooms or recreation and leisure amenities, and d) food services.Divisible Unit: A single living unit within a multi-unit structure, containing rooms or areas which can be used independently of the remainder of the unit such as having separate entrances, stairways or lock off potential. These units must have bathroom facilities and no kitchens. P292 X.a Hotel/Lodging/Inn: A multi-unit structure owned by a single owner which provides a centralized management structure incorporating the following features or standards: limited kitchens in the units, a twenty four (24) hour front desk check in operation, a central phone system to individual rental units, meeting rooms, food services, and recreational or leisure amenities. Las Vegas, Nev. Hotel, Motel, or Hotel Suites. 1. Hotel. A building or group of buildings whose main function is to provide rooms for temporary lodging where entrance to each room is gained from a completely enclosed area. A hotel may also contain restaurants, conference rooms and personal service shops. The phrase “temporary lodging” refers to a rental period with a normal duration of no more than one week. 2. Motel. A building or group of buildings whose main function is to proved rooms for temporary lodging, rooms which are directly accessible from an outdoor parking area. The phrase “temporary lodging” refers to a rental period with a normal duration of no more than one week. 3. Hotel Suites. A facility offering temporary lodging accommodations to the general public in which rooms or suites may include kitchen facilities and sitting rooms in addition to the sleeping room. The phrase “temporary lodging” refers to a rental period with a normal duration of no more than one week. Hotel, Residence. A multi-dwelling unit for extended stay lodging consisting of efficiency units or suites with a kitchen containing a refrigerator, sink and cooking facilities (such as a stove or microwave), suitable for long term occupancy; customary hotel services such as linen, maid service, telephone and upkeep of furniture; and optional resident and guest amenities such as meeting rooms, club house and recreation facilities. The term does not include facilities which qualify as other types of dwelling units defined in this title. P293 X.a Exhibit F Small Lodge Program Participant Lodge Information Hotel Address Number of Units Annabelle Inn 232 W Main St 35 Aspen Mountain Lodge 311 W Main St 38 Boomerang Lodge 500 W Hopkins 47 Chalet Lisl 100 E Hyman 9 Hearthstone House 134 E Hyman Ave 16 Hotel Durant 122 E Durant Ave 20 Molly Gibson 101 W Main St 53 Hotel Aspen 110 W Main St 45 Mountain House 905 E Hopkins Ave 27 Mountain Chalet 333 E Durant Ave 58 Prospector Condos 301 E Hyman Ave 19 Shadow Mountain Lodge 232 W Hyman Ave 10 Snow Queen Lodge 124 E Cooper Ave 8 St. Moritz Lodge 334 W Hyman Ave 37 Tyrolean Lodge 200 W Main St 16 P294X.a 1 MEMORANDUM TO: Mayor Skadron and Aspen City Council FROM: Amy Simon, Historic Preservation Officer THRU: Jessica Garrow, Community Development Director RE: Call-up of HPC’s approval of Conceptual Major Development, Demolition, Relocation, Floor Area Bonus, Setback and Residential Design Standards Variations for 209 E. Bleeker, HPC Resolution #17, Series of 2017 MEETING DATE: September 25, 2017 On August 28th, City Council voted to call up a recent HPC approval for discussion. The call-up procedures are described below. During a public meeting, City Council shall consider the application de novo and may consider the record established by the HPC. The City Council shall conduct its review of the application under the same criteria used by HPC. City Council may take the following actions: 1. Accept the decision, or 2. Remand the application to HPC with direction from City Council for rehearing and reconsideration, or 3. Continue the meeting to request additional evidence, analysis or testimony as necessary to conclude the call-up review. If Council remands the application back to HPC, the rehearing and reconsideration of the application by HPC is final and concludes the call-up review. Substantial changes to the application outside of the specific topics listed in the remand to HPC may require a new call-up notice to City Council; however the call up review would be limited only to the new changes to the application. Following the conclusion of the call-up process, this application will be subject to HPC Final design review. P295 XI.a 2 DISCUSSION: On August 9, 2017, the Historic Preservation Commission approved Conceptual Major Development, Demolition, Relocation, Floor Area Bonus, Setback and Residential Design Standards Variations for a project to occur at 209 E. Bleeker Street. This landmarked West End home belonged to the Hayes family for 60 years. In 2015/2016, HPC reviewed a proposal by a new owner to renovate the home, which was approved and proceeded to building permit. The property was then sold again and the most recent buyer has a revised proposal which required a new board review. The historic resource on this property was significantly altered decades ago to provide more space for the Hayes’ expanding family. A second floor was added on top of what was a classic Aspen miner’s cottage. There is enough historic fabric remaining, along with photographs and maps available to inform the restoration of the resource, but it will admittedly require a good deal of reconstruction. The new property owner plans to create a duplex on the site, with the historic house as one unit and a detached unit built on the rear of the lot. The basements of the two residences will abut below grade. The project was reviewed at two HPC hearings. Staff and HPC were generally supportive of the design at both meetings, except for a lengthy discussion regarding preservation benefits. The property is allowed to have a duplex on 6,000 square feet, rather than the standard 9,000 square feet, due to its landmark status. This option is allowed “by-right” and provides more floor area than is provided for single family use. The applicant requested the 500 square foot bonus in addition to the duplex floor area. At the two HPC meetings, discussion circled around whether the floor area bonus would be acceptable if setback variance requests were reduced (therefore not allowing the extra square footage to slide towards property lines) or whether the floor area bonus should be less. HPC granted a 400 square foot bonus (and setback variations) rather than the initial request for 500 square feet. The vote was 6-0. One HPC member resides close to the site and recused from the discussion, one new member chose not to vote, and one HPC seat is vacant. Staff and HPC support the property owner’s effort. Staff’s concern was that preservation incentives should be reasonable but not excessive when compared to other landmark projects. HPC addressed that issue, weighing the preservation burdens and benefits carefully before granting less than the maximum floor area bonus. RECOMMENDATION: HPC vote on this application was unanimous. Staff recommends Council uphold HPC’s decision. RECOMMENDED MOTION: “I move to uphold HPC Resolution #17, Series of 2017.” CITY MANAGER COMMENTS:_____________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ATTACHMENTS: Exhibit A: Staff memo to HPC, August 9, 2017 Exhibit B: Approved Plans Exhibit C: HPC Minutes, August 9, 2017 Exhibit D: HPC Resolution #17, Series of 2017 P296 XI.a 209 E. Bleeker Street Page 1 of 15 MEMORANDUM TO: Aspen Historic Preservation Commission FROM: Amy Simon, Historic Preservation Officer RE: 209 E. Bleeker Street- Conceptual Major Development, Demolition, Relocation, Residential Design Standards, Floor Area Bonus, and Variations, PUBLIC HEARING CONTINUED FROM JULY 26TH DATE: August 9, 2017 ______________________________________________________________________________ In June, HPC reviewed a project proposed at 209 E. Bleeker and continued it for restudy. While the board indicated support for many aspects of the proposal, there was discussion regarding variations to setbacks and floor area. There was some indication that the board wished to see all setback variations removed from the project before a 500 square foot floor area bonus would be considered to be appropriate. The premise, as staff understood it, was that extra floor area allowed as an incentive for preservation was acceptable if it could be accommodated within the building envelope established by setback requirements. The applicant has restudied the project and proposes two alternatives; neither of which remove the setback variations. In fact a new variation has been added along the rear of the property, where the basement level is now 5’ from the rear lot line instead of 10’. In both new alternatives, the design creates more separation between the above grade structures by moving the historic resource 2’ forward of its historic location, to the minimum front setback. No variance is required to do this. Also in both alternatives the applicant has reduced the length of the new unit along the east lot line so that a previous conflict with a Residential Design Standard limiting that length to 50’ is eliminated. Aside from those changes, the new information provided for this meeting is illustrated in plan form, where portions of the new unit to be deleted are shown in red and portions being added are shown in blue. The applicant requests either a 500 square foot bonus or a 400 square foot bonus. Following this summary is the staff memo from June 28th, without edits. Our recommendation at that time was to continue the project in order to reduce the floor area bonus request to approximately 250 square feet and to eliminate the Residential Design Standards conflict mentioned above. At that time there were some additional drawings needed and some lightwells to be relocated to meet code requirements and these were mentioned as reasons for continuation. The drawings and lightwell tweaks were accomplished and are no longer issues for staff. Totally eliminating the setback variations requested in this project may be unreasonable or undesirable. The historic house has always been located very close to the west property line. It was built 1’ from that line and after the new basement is built, it will be 2’ from the west. This causes the project to not meet the minimum west sideyard. It also causes the project to not meet the minimum combined sideyard of 15’, since this measurement is taken from the “worst case scenario” on each side so that the 2’ setback on the west would need to be countered with a 13’ swath left undeveloped along the east. P297 XI.a 209 E. Bleeker Street Page 2 of 15 Staff remains more concerned with an excessive amount of floor area on the site, between the additional square footage allowed for a duplex instead of single family (a 360 square foot increase) and the full 500 square foot bonus request. We recommend that HPC continue the project again, indicating that the floor area bonus request must be reduced to 250 square feet. In the alternative, if HPC wishes to acknowledge the quality of the project with the full bonus, we recommend that 250 square feet of the floor area allocated to the property must be converted into a Transferable Development Right (requiring approval by City Council) and sold for use on a non-historic site. A third option is for HPC to require that the new unit itself meet the minimum sideyard and combined sideyard requirements, providing at least 5’ on each side and a combined total of 15’ on the sides. The placement of the Victorian would not be factored in. A letter from the property owner has been added to this packet as Exhibit D. If HPC wishes to award an approval to one of the alternatives provided for this hearing, conditions should include: 1. This approval allows for the historic home to be raised above its current elevation. Once re- grading has occurred, the finished floor of the historic home may be no more than 12” above the new finished grade. Before and after topographical elevations must be provided to confirm this condition is met at Final review. 2. As part of a building permit review, the applicant will be required to submit a report from a licensed engineer, architect or housemover demonstrating that the structure can be moved, and the method for moving and protecting the structure must be submitted with the building permit application. In addition the applicant must provide a bond, letter of credit or cashier’s check in the amount of $30,000 per cabin to be held by the City during the duration of the relocation process. The applicant must relocate the structure as a whole and may not undertake demolition of the walls and roof until the building is set on a new foundation. The goal is to maintain the greatest possible integrity of the remaining historic fabric in place. 3. No stormwater features, including retention areas or drywell covers, will be permitted forward of the front façade of the historic resource. 4. HPC grants a 3’ setback reduction for the west sideyard along the historic resource, an 8’ combined sideyard reduction and a 5’ rear setback reduction for a deck over the garage and for the basement level. Regarding the west yard, the applicant must demolish the concrete block wall on that lot line in order to open up a view of that side of the house given the minimal setback. 5. HPC grants a waiver to the Residential Design Standards Build-to Requirement. 6. A development application for a Final Development Plan shall be submitted within one (1) year of July 26, 2017, the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant a one-time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. P298 XI.a 209 E. Bleeker Street Page 3 of 15 The balance of this memo was provided to HPC on June 28th. SUMMARY: 209 East Bleeker is a designated landmark located in Aspen’s West End neighborhood. The home belonged to the Hayes family for 60 years. In 2015/2016, HPC reviewed a proposal by a new owner to renovate the home, which was approved and proceeded to building permit. The property was then sold again and the most recent buyer has a revised proposal which requires a new board review. This 6,000 square foot, R-6, Medium Density Residential property has an allowable floor area of 3,240 sf for a single family home or 3,600 square feet for a duplex, which is proposed. Demolition of non-historic construction, relocation of the resource onto a new foundation, a floor area bonus, setback and Residential Design Standards variations are requested from HPC. This historic resource on this property was significantly altered decades ago to provide more space for the Hayes’ expanding family. A second floor was added on top of what was a classic Aspen miner’s cottage. A c. 1950s photo is below left and a current photo is below right. There is enough historic fabric, along with photographs and maps available to inform the restoration of the resource, but it will admittedly require a good deal of reconstruction. APPLICANT: Cathedral Cutthroat, LLC, represented by Z Group Architects. PARCEL ID: 2737-073-20-002. ADDRESS: 209 E. Bleeker Street, Lots C, D and a portion of Lot B, Block 73, City and Townsite of Aspen Colorado ZONING: R-6 P299 XI.a 209 E. Bleeker Street Page 4 of 15 DEMOLITION The applicant has provided photographs of the existing structure, indicating areas to be demolished. These demolished areas include an addition to the house on the east side of the original structure, walls which were built to infill historic porches on the front and southeast corner of the building, and the entire upper floor/roof of the building. Following are the criteria for demolition. 26.415.100.4. The HPC shall review the application, the staff report and hear evidence presented by the property owners, parties of interest and members of the general public to determine if the standards for demolition approval have been met. Demolition shall be approved if it is demonstrated that the application meets any one of the following criteria: a) The property has been determined by the City to be an imminent hazard to public safety and the owner/applicant is unable to make the needed repairs in a timely manner, b) The structure is not structurally sound despite evidence of the owner's efforts to properly maintain the structure, c) The structure cannot practically be moved to another appropriate location in Aspen or d) No documentation exists to support or demonstrate that the property has historic, architectural, archaeological, engineering or cultural significance and Additionally, for approval to demolish, all of the following criteria must be met: a) The structure does not contribute to the significance of the parcel or Historic District in which it is located and b) The loss of the building, structure or object would not adversely affect the integrity of the Historic District or its historic, architectural or aesthetic relationship to adjacent designated properties and c) Demolition of the structure will be inconsequential to the historic preservation needs of the area. Staff Response: The applicant proposes demolition of the non-historic additions to the landmark in order to restore the original form of the building. Historic photographs are available to guide the restoration and the demolition effort. For instance, the 1904 Sanborn map shown below left identifies the original footprint of the home, and indicates the location of the original front porch (shown with a dashed line.) The map also indicates that the small shed currently located in the southeast corner of the site, shown below right, is not the same as the larger structure that sat at the rear of Lot D historically. This low head height building appears to have been a toolshed or playhouse and is proposed to be removed. P300 XI.a 209 E. Bleeker Street Page 5 of 15 The photo below shows the east side of the home before an addition was constructed along that wall. Staff finds that the review criteria for demolition of the non-historic aspects of the building are met and recommends approval, however, the applicant must supplement the application with a west elevation of the existing house (difficult to document due to the proximity to a concrete block wall) and floor plans indicating the areas of demolition. There is historic framing and a few historic doors and windows in the areas to be retained. Those elements will be required to be preserved in place. P301 XI.a 209 E. Bleeker Street Page 6 of 15 RELOCATION The historic home appears to be in its original location, although a basement was built beneath it several decades ago. The foundation has a number of unsatisfactory structural conditions that require it to be rebuilt. Relocation of a historic buildings will be approved if it is determined that it meets any one of the following standards: 1. It is considered a noncontributing element of a historic district and its relocation will not affect the character of the historic district; or 2. It does not contribute to the overall character of the historic district or parcel on which it is located and its relocation will not have an adverse impact on the Historic District or property; or 3. The owner has obtained a certificate of economic hardship; or 4. The relocation activity is demonstrated to be an acceptable preservation method given the character and integrity of the building, structure or object and its move will not adversely affect the integrity of the Historic District in which it was originally located or diminish the historic, architectural or aesthetic relationships of adjacent designated properties; and Additionally, for approval to relocate all of the following criteria must be met: 1. It has been determined that the building, structure or object is capable of withstanding the physical impacts of relocation; 2. An appropriate receiving site has been identified; and 3. An acceptable plan has been submitted providing for the safe relocation, repair and preservation of the building, structure or object including the provision of the necessary financial security. Staff Response: Lifting the house for a new foundation is a necessity. In the process, the applicant intends to shift the house about 9” west of its current location, so that instead of being 1.2’ away from the west lot line the house will be 2’ away from it. Anytime a structure is this close to a property line, there are numerous building code requirements that come into effect to slow fire from travelling from one building to another. The applicant will be required to add additional layers of drywall to the interior of the structure and protect the eave. No windows will be allowed on this façade, which in this unusual case will be acceptable because there are no west facing windows on the historic photo shown on the first page of this memo. Staff recommends HPC discuss the possibility of placing the house 3’ from the lot line and/or requiring the demolition of the concrete block wall along the property line in order to expose some view down the side of the resource. The distance between the east side of the historic house and the west side of the new house would likely be reduced from about 9’ to 8’. P302 XI.a 209 E. Bleeker Street Page 7 of 15 CONCEPTUAL MAJOR DEVELOPMENT The application notes the fact that the house is sitting rather low in comparison to the street and alley, which have been built up over the years. Relocation will allow the house to be set at a more proper elevation, with new grading of the site. The application indicates that the floor level of the house will be just over a foot above grade, which is appropriate. More information about the treatment of the exposed foundation will be required at Final review. The applicant will be required to provide a financial assurance in the amount of $30,000, to be held by the City to provide for the safe relocation and repair of the building if needed. The applicant must relocate the structure as a whole and may not undertake demolition of the walls and roof until the building is set on a new foundation. The goal is to maintain the greatest possible integrity of the remaining historic fabric in place. Staff recommends relocation be approved, with the conditions mentioned above. The procedure for a Major Development Review, at the Conceptual level, is as follows. Staff reviews the submittal materials and prepares a report that analyzes the project’s conformance with the design guidelines and other applicable Land Use Code Sections. This report is transmitted to the HPC with relevant information on the proposed project and a recommendation to continue, approve, disapprove or approve with conditions and the reasons for the recommendation. The HPC will review the application, the staff analysis report and the evidence presented at the hearing to determine the project’s conformance with the City of Aspen Historic Preservation Design Guidelines. The HPC may approve, disapprove, approve with conditions, or continue the application to obtain additional information necessary to make a decision to approve or deny. Major Development is a two-step process requiring approval by the HPC of a Conceptual Development Plan, and then a Final Development Plan. Approval of a Conceptual Development Plan shall be binding upon HPC in regards to the location and form of the envelope of the structure(s) and/or addition(s) as depicted in the Conceptual Plan application including its height, scale, massing and proportions. No changes will be made to this aspect of the proposed development by the HPC as part of their review of the Final Development Plan unless agreed to by the applicant. Given the extent of the project, HPC’s approval will be subject to Call-Up review by City Council. Staff Response: Conceptual review focuses on the site plan, height, scale, massing and proportions of a proposal. A list of the relevant HPC design guidelines is attached as “Exhibit A.” The proposal before HPC is to reconstruct the miner’s cottage for use as a residence, and to build a new home along the east and rear of the historic resource. The units have full basements which abut below grade. In terms of site plan, the historic house will remain essentially in its historic location. The proposed new structure does not attach the resource above grade, which is commendable. P303 XI.a 209 E. Bleeker Street Page 8 of 15 VARIANCES: FAR BONUS, SETBACK VARIATIONS, RDS VARIANCES Placement of a second structure on the lot does entail setback variations, which are discussed later in the memo. The new HPC design guidelines which are applicable to this project require some level of discussion of stormwater design at Conceptual review. While engineering may not be the main focus of the design team at this point, staff has found that waiting until permit to design the system often ends up with unexpected features in the foreground of the historic structure. Since information has not been provided, staff recommends a condition of approval that no stormwater features, including retention areas or drywell covers, will be permitted forward of the front façade of the historic resource. Reviewing the floor plans, there are two minor adjustments that will be needed due to zoning requirements and design standards. First, duplex units can only abut along a common, unpierced wall. The central lightwell which is meant to serve both units below grade provides an opportunity for the two units to be combined illegally at some point in the future. In order to avoid that scenario, a solid concrete wall must be added to separate access. Regarding the lightwell which is proposed along the west façade of the new unit, the Residential Design Standards require all lightwells to be recessed behind the front most wall of the unit which they serve. This lightwell encroaches past the façade, alongside the front porch and must be moved southward. Looking at the height, scale, massing and proportions of the proposal, staff finds that the applicant is successfully addressing the guidelines. The height of the ground floor on the historic structure and new structure are very similar, and the front porches relate strongly to each other. The upper floor of the new house is not taller than the lower level, and the 12:12 roof pitches, street facing gable ends and east-west cross gable all relate well to the resource. The outdoor deck on the new house faces the alley, allowing the new building to be relatively simple in character behind the resource. To create compatibility between the units, the applicant has indicated that they are relating in form and materials and will depart from the Victorian vocabulary with their fenestration, to be discussed in more detail at Final review. Staff finds that the Conceptual design guidelines are met, however we have some objections to the award of a full floor area bonus (which contributes to the size of the project), discussed below. The application includes requests for a 500 square foot floor area bonus, Setback variations, and Residential Design Standards variations. 26.415.110.F. Floor area bonus. 1. In selected circumstances, the HPC may grant up to five hundred (500) additional square feet of allowable floor area for projects involving designated historic properties. To be considered for the bonus, it must be demonstrated that: P304 XI.a 209 E. Bleeker Street Page 9 of 15 a) The design of the project meets all applicable design guidelines; b) The historic building is the key element of the property and the addition is incorporated in a manner that maintains the visual integrity of the historic building; c) The work restores the existing portion of the building to its historic appearance; d) The new construction is reflective of the proportional patterns found in the historic building's form, materials or openings; e) The construction materials are of the highest quality; f) An appropriate transition defines the old and new portions of the building; g) The project retains a historic outbuilding; and/or h) Notable historic site and landscape features are retained. 2. Granting of additional allowable floor area is not a matter of right but is contingent upon the sole discretion of the HPC and the Commission's assessments of the merits of the proposed project and its ability to demonstrate exemplary historic preservation practices. Projects that demonstrate multiple elements described above will have a greater likelihood of being awarded additional floor area. 3. The decision to grant a floor area bonus for major development projects will occur as part of the approval of a Conceptual Development Plan, pursuant to Subsection 26.415.070.D. The floor area bonus may also be approved as part of a Historic Landmark Lot Split Review. 4. Floor area bonuses are cumulative. A property shall receive no more than 500 square feet total. Staff Response: The applicant requests the 500 sf floor area bonus. Extensive restoration/reconstruction of the miner’s cabin is proposed. Historic photographs are available to inform the reconstruction but many details will need to be based on general architectural details of the Victorian era. The diminished level of historic integrity for this building calls into question whether the entire 500 sf Bonus is appropriate. In reality, this particular project is mostly new construction, such that the cost and effort of preserving historic materials is not as much of a factor. The application is already receiving 360 square feet of additional floor area, and a second unit on the site, since landmarks are able to have a duplex on a 6,000 square foot lot where other properties are not. Significant affordable housing and other fee waivers will be part of the permit process. Staff does find that floor area bonus criteria a, b, c, d, e, and f are arguably met. The design appears to accommodate the requested square footage appropriately, but the new structure is in fact about three times the size of the Victorian above grade. The restored building will add value to the neighborhood as a representation of a miner’s cottage. Staff recommends that HPC discuss a reduced bonus, perhaps half, in light of other benefits that are available to the project. P305 XI.a 209 E. Bleeker Street Page 10 of 15 26.415.110.C. Variances. Dimensional variations are allowed for projects involving designated properties to create development that is more consistent with the character of the historic property or district than what would be required by the underlying zoning's dimensional standards. 1. The HPC may grant variances of the Land Use Code for designated properties to allow: a) Development in the side, rear and front setbacks; b) Development that does not meet the minimum distance requirements between buildings; c) Up to five percent (5%) additional site coverage; d) Less public amenity than required for the on-site relocation of commercial historic properties. 2. In granting a variance, the HPC must make a finding that such a variance: a) Is similar to the pattern, features and character of the historic property or district; and/or b) Enhances or mitigates an adverse impact to the historic significance or architectural character of the historic property, an adjoining designated historic property or historic district. The applicant requests the following variations (bold numbers indicate a variation request): Required Provided East side yard setback 5’ 5’ West side yard setback 5’ 2’ Combined side yard setback 15’ 7’ Rear yard setback 5’ required for garage; 10’ required for living space and decks 5’ for garage; 10’ for living space above and below grade 5’ for a deck on top of the garage Staff Response: Staff is supportive of a west sideyard setback variation to allow the historic resource to sit 2-3’ from the west property line, close to the existing location. Staff is also supportive of a combined sideyard setback variation, which will be measured from the smallest distance from property line to a structure on each side, meaning 5’ provided on the east and 2’ provided on the west totalling 7’ of combined sideyard. Finally, because pushing the mass and activity of the new house towards the alley and away from the historic resource is appropriate, staff supports a variation to allow a rear deck to be 5’ closer to the alley than typically permitted. 26.410 Residential Design Standards. The Residential Design Standards apply to most residential development throughout Aspen. P306 XI.a 209 E. Bleeker Street Page 11 of 15 An application requesting a variation from the Residential Design Standards shall demonstrate to the review board that the variation, if granted would: a) Provide an alternative design approach that meets the overall intent of the standard as indicated in the intent statement for that standard, as well as the general intent statements in Section 26.410.010.A1-3; or b) Be clearly necessary for reasons of fairness related to unusual site-specific constraints. The proposal as designed includes two RDS variations; Articulation of Building Mass and Build- to Requirement. In order to avoid a variation related to lightwells, staff has mentioned earlier in the memo that the applicant must shift the location of a lightwell serving the basement below the new unit. At Final review, Residential Design Standards concerning fenestration will be considered. The General intent statements of the guidelines are: The specific standards for Articulation of Building Mass read: P307 XI.a 209 E. Bleeker Street Page 12 of 15 P308 XI.a 209 E. Bleeker Street Page 13 of 15 The language related to Build-to Line reads: Staff response: With regard to Articulation of Building Mass, staff finds that a variation is not appropriate. The applicant has three design options to meet the requirements to reduce the length of continuous sidewall along the east property line. The maximum unbroken length of wall that is permitted is 50,’ not including the front porch. The applicant proposes 55.’ Staff has consistently upheld this standard on other residential properties and does not support a variation in this case. Adhering to the Build-to Requirement would mean that the new house would have to be placed almost in alignment with the historic resource. While this would not necessarily be inappropriate, staff does prefer the deeper front setback of the new house, which sends the message that this unit is to some extent secondary. The applicant also has to recess the new house due to trees at the front of the site. Staff supports HPC granting a variation on Build-to Requirement. ______________________________________________________________________________ ______________________________________________________________________________ STAFF RECOMMENDATION: Staff has suggested a number of areas of restudy on the project, which requires a continuation and resubmittal of drawings. Recommended amendments to the project and/or likely conditions of approval are: P309 XI.a 209 E. Bleeker Street Page 14 of 15 1. Provide a representation of the west elevation of the existing house indicating proposed demolition. 2. Provide floor plans of the existing house indicating proposed demolition. 3. This approval allows for the historic home to be raised 12-18” above its current elevation. Once re-grading has occurred, the finished floor of the historic home may be no more than 12” above the new finished grade. Before and after topographical elevations must be provided to HPC, to be included in this Resolution. 4. As part of a building permit review, the applicant will be required to submit a report from a licensed engineer, architect or housemover demonstrating that the structure can be moved, and the method for moving and protecting the structure must be submitted with the building permit application. In addition the applicant must provide a bond, letter of credit or cashier’s check in the amount of $30,000 per cabin to be held by the City during the duration of the relocation process. The applicant must relocate the structure as a whole and may not undertake demolition of the walls and roof until the building is set on a new foundation. The goal is to maintain the greatest possible integrity of the remaining historic fabric in place. 5. No stormwater features, including retention areas or drywell covers, will be permitted forward of the front façade of the historic resource. 6. The lightwell in the center of the property must be divided into two separate lightwells; one for each unit. The lightwell divider must be a concrete wall. 7. In order to meet the Residential Design Standards, the applicant must shift a lightwell on the northwest side of the new residence so that it is aligned with or located behind the north façade of the new residence. 8. Staff recommends that HPC discuss a reduced bonus, perhaps half, in light of other benefits that are available to the project. 9. Staff supports the granting of a 2-3’ setback requirement for the west sideyard, a 7’ combined sideyard and a 5’ rear setback requirement for a deck over the garage. Regarding the west yard, staff recommends demolition of the concrete block wall sitting close to the house in order to open up a view of that side of the house given the minimal setback. 10. Staff supports HPC granting a variation on Build-to Requirement but not Articulation of Building Mass. 11. A development application for a Final Development Plan shall be submitted within one (1) year of ____, the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant a one-time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. EXHIBITS: Exhibit A: Relevant design guidelines Exhibit B: Application text provided for July 26, 2017 Exhibit C: Application drawings provided for July 26, 2017 Exhibit D: Letter from property owner P310 XI.a 209 E. Bleeker Street Page 15 of 15 P311 XI.a P312XI.a P313XI.a P314XI.a P315XI.a P316XI.a P317XI.a P318XI.a P319XI.a P320XI.a P321XI.a P322XI.a P323XI.a P324XI.a P325XI.a P326XI.a P327XI.a 8 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF AUGUST 9, 2017 Mr. Moyer said he concurs with staff. He agreed that they should stick with the flat roofs and is ok with the 18 inches on the side. The project has come a long way and feels they should try and complete it tonight. Mr. Blaich said they now have the oom and still need to get the phh and that could be done in the final and feels they have listened to all the input. He’s with Ms. Greenwood with the proposals. He doesn’t have a problem with siding allowance and is in favor of the flat roof. Mr. Kendrick asked how close they would be to neighboring building. Mr. Guy said 8 ½ ft. Mr. Kendrick finished by saying he likes the design with the flat roofs. Mr. Halferty thinks the proposal has come a long way from first iteration and conforms to guidelines. He thinks the green flat roofs are much better and that the one sloped roof doesn’t have the merit. He said he is in support of balcony variance, which gives occupants a little more room. He is ok with the setback variances and feels the FAR bonus is merited here. The reduction of one parking space is ok and encouraged due to the bike alternatives. The allowable height variance is applicable here. There is still a lot of the detailing that is still in question so be conscious of that, but Mr. Halferty does feel that it meets the criteria and guidelines and is looking for a motion to move forward. MOTION: change from staff’s page 58, that side yard setbacks are allowed, Mr. Blaich seconded. Mr. Pember made an amendment to the motion to remove the bump, it’s lame, Mr. Blaich seconded. Roll call vote: Mr. Pember, yes; Ms. Berko, yes; Mr. Moyer, yes; Ms. Greenwood, yes; Mr. Lai, yes, Mr. Halferty, yes, Mr. Blaich, yes. 7-0, motion carried. Ms. Berko exited. 209 E Bleeker Amy Simon This project has been continued for redevelopment and is a Victorian dramatically altered from its original design. The proposal before HPC is to restore the old miner’s cottage in the front, pick up and put onto a new basement and add a second dwelling unit behind it. This will also function as a duplex with the miner’s cottage being one and the new addition the other. HPC did not previously have issues with the massing or relocation, but there was discussion of the extent of the incentives being offered. The miner’s cottage has always been a foot away from the west property line and in this project, it will be 2 feet away from the property line. HPC gave direction at the previous hearing to eliminate setback variations. Staff’s perspective was to focus on floor area. Because this application is asking to be duplex, they already get a 360-square foot bonus bump. They are viewing this as an incentive and request for 500 sq. ft. floor area bonus. The applicant has taken this to heart and have taken their request from 500 to 400 square feet. We don’t want to overwhelm the historic resource and want HPC to take this to heart. It’s going to be very much new construction, but we’re going to have a limited amount of historic P328 XI.a 9 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF AUGUST 9, 2017 material onsite. They will be building back the missing pieces. This isn’t the same as when we have someone loving scrape and re-glaze, etc. They have suggested a few alternatives in the staff memo, one of them being that HPC could grant the full 400 sq. ft. bonus, but require a certain amount to be sold away as TDR, that way the owner still gains some financial incentive. We have suggested that they reduce the amount of floor area bonus granted and require the new unit only to meet the setback requirements while factoring the historic building out of it. She provided them with the previous memo and have suggested conditions of approval on page 107 of the packet. Mr. Moyer asked about the streetscape element and Ms. Simon said there is a streetscape element in the packet and we generally find the project to be successful, but we don’t want to send the message about limitless incentives in terms of square footage that an applicant should expect. Ms. Greenwood said they should have a sliding scale for projects for the amount of restoration for granting. Ms. Simon said they don’t have that level of detail right now and don’t want to invent on the spot. We want to make sure there is a balance and we have a concern with how neighbors are affected. Ms. Simon said page 19 is from the previous discussion and the list is shorter on page 107 with a position on the bonuses. Applicant Seth Hmielowski and Melanie Noonan of Z Group as well as Dan Fromm, owner; Chris Klug, realtor and Brett Byman & Ken Janckila of Janckila Construction. We are asking for a 55-ft. requirement on length and we have taken that off. We did add a setback variance that we should have asked for from the beginning. We did throw that request in as well and this shows what we initially submitted and what has been changed. The cabin has been moved to the very front setback and we want to keep the trees so we are staying away from the roots. We are keeping the setback away from the historic asset and are now asking for 400 sq ft floor area bonus. The elevation went down to 50 feet from 55. Mr. Byman said there is not much historic material left and he feels it’s very admirable to be committed to doing this. The owner is committed to shore, stabilize and lift the building which will increase the cost substantially. Mr. Janckila said it’s a pretty expensive venture, but the family will do it if that’s what HPC wantw. It’s doable, but the fact is, it’s about money. Mr. Klug said he represents the Fromm family for many years since 2007. His experience is that it preserves the historic component, moving it forward, to higher ground to make more prominent. It was attached as a single-family home in the beginning and is now detached and said he knows Mr. Janckila has a lot of experience doing historic renovations. He thinks this is a better project, better plan and is here to advocate the 500 bonus. Dan Fromm is the brother of Andy Fromm and said they have purchased the property together and is excited about the plans. Mr. Fromm also met with the neighbors who think this is a better plan as well. Mr. Hmeilowski said there are eight points to hit to demonstrate the Historic preservation and they hit six of them. 7 and 8 don’t have anything to do with their project and feels they are within the guidelines of what HPC is expecting. Ms. Bryan asked Mr. Halferty to make a motion to extend past 7:00 p.m. P329 XI.a 10 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF AUGUST 9, 2017 MOTION: Mr. Moyer motioned to continue past 7 p.m., Mr. Halferty seconded. All in favor, motion carried. Ms. Greenwood confirmed that this new plan is for 400 bonus square feet and that they are looking at two diff plans and Ms. Simon said there are different illustrations of where they remove 100 sq. ft. Mr. Moyer asked when the former proposal came to HPC and Ms. Simon said 2015 for a SFH not a duplex. 500 was approved, but didn’t receive the 360 on the table now due to it being a duplex. There is 860 in total. Mr. Moyer asked Ms. Simon if she feels this is a better project and she said yes. In the previous, they didn’t have an option but to hook the addition to the historic resource. It’s freestanding this time and that’s better. The site is a little bit of a pond and they will lift higher and regrade so there will be improvements like that. There is a question about this project if it is restoration or reconstruction. Mr. Moyer then clarified that it is really a reconstruction and Ms. Simon said yes. We have only brought this up in a few instances and she is not comfortable with 860 square feet in this circumstance. There is criteria in the packet regarding whether bonuses are appropriate or not. Ms. Greenwood asked what the total square footage is. Mr. Hmielowski said, just based on code it’s 3600. There are two garages, one per unit. 250 sq. ft. garage. PUBLIC COMMENT: Carolyn Bennett from Baton Rouge said it’s so gratifying to see this small historic structure being so cherished. Besides it’s architectural value, it has a great deal of cultural and historical value and a story to tell. She asked if you can use the federal tax credits? Ms. Simon said no. Ms. Simon had two letters to enter for the record. Gigi Whitman of 214 E Bleeker, said she has reviewed the plans and they look fine. John Kelly of 203 E Hallam, said he supports the effort and the corresponding 500 ft. of floor area. Public comment closed. Mr. Moyer supports staff’s comments and agrees. Mr. Lai thinks the plan is really ingenious. When looking at FAR bonuses and setback requirements, as a generality, it’s really gotten out of hand. In NYC, there are buildings that are much higher than anticipated, but here in Aspen, he didn’t realize, Aspen has been going down instead of up and is astounded by the work underground. This is an example of that. Its a given now and he doesn’t think we have a lot of leeway to do anything about the overabundance of basement space. The design is ingenious, but regrets the monstrous amount of space not visible to the public. Mr. Kendrick is concerned that the extra FAR will overwhelm the lot if the bonus is granted since it’s such a small lot. Mr. Lai also added that when he looked at adjacent buildings, they’ve started the precedence and the whole block is overdeveloped. The side lots do not exist and the development on the west corner is a P330 XI.a 11 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF AUGUST 9, 2017 good design and commends the idea of moving the historic structure forward as it mitigates the problem, but it’s still an overcrowded block visually. Mr. Blaich is in favor of the project and is moving it forward, but he’s not sure about granting the 500- square bonus. He went to college with Mary Hayes and knew her well and wants to see this project move forward in her memory. Ms. Greenwood said this is an important lot in aspen because of Mary Hayes. She is very much with staff that in light of addressing staff’s concerns, to stay with 400 sq. ft. bonus. We want that to be a stand- alone building. She likes the front yard and thinks the historic building really does stand out and maintain the story of who lived there. She feels they should grant them the 400 bonus as long as they do a very detailed demo plan and relocation and don’t pull any punches. She thinks they should grant them a bonus, but a little smaller. Regarding the garage setback, she thinks it’s a ridiculous thing, but she can’t say no to it. She feels the rule should be changed. Mr. Pember said he wasn’t here for the first review and they need to speed up where they stand. They need to allow either 500 or 400 and staff’s recommendation was to reduce to 250 or sell 250 as a TDR. Mr. Halferty said this project has come a long way. What is proposed is meeting the guidelines and saving as much of the corpse as possible. It’s an interesting project and is not eroding the back side of the wall, which we do a lot. It’s nice to have square footage down low instead of higher and we can rebuild and use the historic materials on site. He is interested in recreating and agrees with giving them incentives. He agrees with a small reduction of FAR is suggesting the 400 bonus. It’s a strong project and they have worked with a lot of obstacles. MOTION: Ms. Greenwood motioned to approve items 1-6 that staff created and add item 7 in to allow 400 FAR bonus, Mr. Moyer seconded. Roll call vote: Ms. Greenwood, yes; Mr. Blaich, yes; Mr. Moyer, yes, Mr. Halferty, yes; Mr. Lai, yes; Mr. Pember, yes. 6-0 all in favor, motion carried. Ms. Berko re-entered the meeting. New Business: 415 E Hyman Amy Simon Ms. Simon said this is a minor review affecting a building in the downtown commercial core and a non- historic building. The applicant, Eric, has purchased the 4th floor commercial unit and the interior has been gutted. He would like to add more windows on the east and west sides of the building. Initially staff had considered to approve, but the applicant had more in mind so it was bumped up to HPC. The windows are to be replaced to match and have been proposed on the east and west facades of the structure. These windows are not typical and we don’t support more than one or two. Looking at Prada or the Red Onion, you have street facing double hung windows. Staff recommends to HPC that we can support sidewall windows down the front, which are square shaped and placed equally down the side of P331 XI.a 12 ASPEN HISTORIC PRESERVATION COMMISSION MINUTES OF AUGUST 9, 2017 the building. Staff feels that we should be sympathetic to patterns we already have downtown. You have received two options, which have different spacing and different shapes. Staff supports the last option. Mr. Moyer asked about the Eagles building and confirmed that the windows on the side were always there and Ms. Simon said, yes, they are historic and match what’s on the front. This isn’t a historic building we would be cutting into and the Elks has windows on the second story façade. We are trying to be consistent with the older buildings. Applicant Chris Bendon and Eric Mengleson, owner. Mr. Bendon stated that this building has some historic-ish characteristics. It’s a 4-story building mashed into a 3 story space so it’s sort of compressed. There’s a two-story element that has the windows facing north and some on the alley. To make space more usable, the window design has been selected because of the sill height window interior. The interior layout has to do with the window patterns for flexibility. Ms. Greenwood asked what size the windows are and Michael Edinger, architect, said they are 48 inches tall and 3 ft. 6 wide for the preferred option 1. Ms. Simon added that these are almost square in shape and the restudied option are a little more vertical matching what it on the front. Mr. Kendrick asked how tall the windows are in option 2 and Mr. Mengleson answered 5 ft. tall. They go below a normal desk height, which means they are not having the sill bottom go below the post furniture. Ms. Greenwood asked Ms. Simon if she is in favor of option 2 and she answered yes, it meets the guidelines and seems like a good compromise. PUBLIC COMMENT: None. Public comment closed. Mr. Mengleson does like the aesthetics in option 2 regarding the views of the exterior as well. He said they would be satisfied with option 2 as a compromise on all accounts, they just don’t want to be delayed. MOTION: Mr. Pember moved to approve option 1 that the applicant wants, Ms. Greenwood seconded. Mr. Lai said h prefers the option presented by staff and likes the rhythm and proportion of option #2. Roll call vote: Mr. Moyer, yes; Mr. Blaich, yes; Mr. Halferty, yes; Mr. Lai, no; Mr. Kendrick, no; Ms. Greenwood, yes; Mr. Pember, yes. 5-2, motion carried. Mr. Halferty motioned to adjourn at 8:00 p.m. Nicole Henning, Deputy City Clerk P332 XI.a 209 East Bleeker Street HPC Resolution #17, Series of 2017 Page 1 of 3 A RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPC) APPROVING CONCEPTUAL MAJOR DEVELOPMENT, DEMOLITION, RELOCATION, A FLOOR AREA BONUS, SETBACK VARIATIONS AND A RESIDENTIAL DESIGN STANDARDS VARIATION FOR THE PROPERTY LOCATED AT 209 EAST BLEEKER STREET, LOTS C, D, AND A PORTION OF LOT B, BLOCK 73, CITY AND TOWNSITE OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO RESOLUTION #17, SERIES OF 2017 PARCEL ID: 2737-073-20-002 WHEREAS, the applicant, Cathedral Cutthroat, LLC, represented by Z Group Architects, requested Conceptual Major Development, Demolition, Relocation, Floor Area Bonus and Setback and Residential Design Standards Variations for the property located at 209 East Bleeker Street, Lots C, D, and a portion of Lot B, Block 73, City and Townsite of Aspen; and WHEREAS, Section 26.415.070 of the Municipal Code states that “no building or structure shall be erected, constructed, enlarged, altered, repaired, relocated or improved involving a designated historic property or district until plans or sufficient information have been submitted to the Community Development Director and approved in accordance with the procedures established for their review;” and WHEREAS, for Conceptual Major Development Review, the HPC must review the application, a staff analysis report and the evidence presented at a hearing to determine the project’s conformance with the City of Aspen Historic Preservation Design Guidelines per Section 26.415.070.D.3.b.2 and 3 of the Municipal Code and other applicable Code Sections. The HPC may approve, disapprove, approve with conditions or continue the application to obtain additional information necessary to make a decision to approve or deny; and WHEREAS, for approval of Demolition, the application shall meet the requirements of Aspen Municipal Code Section 26.415.080.A, Demolition of a Designated Property; and WHEREAS, for approval of Relocation, the application shall meet the requirements of Aspen Municipal Code Section 26.415.090.C, Relocation of a Designated Property; and WHEREAS, in order to receive approval for a floor area bonus, the application shall meet the requirements of Aspen Municipal Code Section 26.415.110.F; and WHEREAS, the HPC may approve setback variations according to Section 26.415.110.C.1.a, Variances; and WHEREAS, the HPC may approve variations to the Residential Design Standards according to Section 26.410.020.C, Variances; and P333 XI.a 209 East Bleeker Street HPC Resolution #17, Series of 2017 Page 2 of 3 WHEREAS, Amy Simon, in her staff report to HPC dated August 9, 2017, performed an analysis of the application based on the standards and recommended continuation of the project for restudy; and WHEREAS, at their regular meeting on August 9, 2017 continued from July 26, 2017 and June 28, 2017, the Historic Preservation Commission considered the application, the staff memo and public comments, and found the proposal consistent with the review standards and approved the project with conditions by a vote of 6-0. NOW, THEREFORE, BE IT RESOLVED: That HPC hereby grants Conceptual Major Development, Demolition, Relocation, Floor Area Bonus and Setback and Residential Design Standards Variations: 1. This approval allows for the historic home to be raised above its current elevation. Once re- grading has occurred, the finished floor of the historic home may be no more than 12” above the new finished grade. Before and after topographical elevations must be provided to confirm this condition is met at Final review. 2. As part of a building permit review, the applicant will be required to submit a report from a licensed engineer, architect or housemover demonstrating that the structure can be moved, and the method for moving and protecting the structure must be submitted with the building permit application. In addition the applicant must provide a bond, letter of credit or cashier’s check in the amount of $30,000 per cabin to be held by the City during the duration of the relocation process. The applicant must relocate the structure as a whole and may not undertake demolition of the walls and roof until the building is set on a new foundation. The goal is to maintain the greatest possible integrity of the remaining historic fabric in place. 3. No stormwater features, including retention areas or drywell covers, will be permitted forward of the front façade of the historic resource. 4. HPC grants a 3’ setback reduction for the west sideyard along the historic resource, an 8’ combined sideyard reduction and a 5’ rear setback reduction for a deck over the garage and for the basement level. Regarding the west yard, the applicant must demolish the concrete block wall on that lot line in order to open up a view of that side of the house given the minimal setback. 5. HPC grants a waiver to the Residential Design Standards Build-to Requirement. 6. HPC grants a 400 square foot floor area bonus, approving the plan version represented as depicting a 400 square foot bonus at the August 9, 2017 hearing. 7. A development application for a Final Development Plan shall be submitted within one (1) year of August 9, 2017, the date of approval of a Conceptual Development Plan. Failure to file such an application within this time period shall render null and void the approval of the Conceptual Development Plan. The Historic Preservation Commission may, at its sole discretion and for good cause shown, grant a one-time extension of the expiration date for a Conceptual Development Plan approval for up to six (6) months provided a written request for extension is received no less than thirty (30) days prior to the expiration date. P334 XI.a 209 East Bleeker Street HPC Resolution #17, Series of 2017 Page 3 of 3 APPROVED BY THE COMMISSION at its regular meeting on the 9th day of August, 2017. Approved as to form: Approved as to content: _________________________________ ____________________________________ Andrea Bryan, Assistant City Attorney Jeffrey Halferty, Chair Attest: _________________________________ Nicole Henning, Deputy City Clerk P335 XI.a ■ Bert Myrin shared Carolyn Sackanason's post September 19 at 9 53a d . Carolyn Sackariason is at 0 Pnkm County Library Book Bike September 13 at 910pm Aspen N Garbage kiss bears.Pitkin County'AN summer yov carr heee been broken into outside the*)MY-YM pick t up nearly every dayl An Aspen cop lust toed to See More 05 Like Q Comment p,5 Share OC)q Peter Stenjes,Michael Donohue and 11 others ® Tom Anderson Government doesn't have to obey laws.didn't you know that Only the lax paying citizens dog Sac Reply 04 3 Septemher 19 at 11 40am Kim McHale-Dymphna Baillargeon The bears are relentless this year.What they find in the garbage is food and lots of d. People can be so wasteful.The COA/Pdco has a whole department dedicated to garbage. Leading by example is not something either governments are good at doing.It starts at the top Like Reply 0 1 September 19 at 1 11 pm ■ Leah Davis City of Aspen doesn't use beer proof cans7l'yl Like Reply 0 ! Seo'en•,Oer 19 at 1 59pm ■ Bert Myrin This is the Pitkin County Library-a separate distnct on local property tax bills from the city. Like Reply t-_:e 71-e, 1y a;n _;p•. Leah Davis It is IouOed In the City Of Aspen.Doesnl really mater who pays the bills.ICs a danger to people and beers. Like Reply 0 1 ,1 . Bert Myrin Should the city o1 aspen be purchasing bear proof trash cans for the Pitkin County Llbrarr The library has a line item on the annual property tax bills and I think they can afford bear proof trash cans. Like Reply September 20 at 1 16am Edited Y View more replies ■ - .. 9 2 uc Kim McHale-Dymphna Baillargeon Come Onl Wet= 1'AINAlg9111140 not ohr territory is Woe. Lke Rept, 0 L September 19 at 6 27pm Teresa Wyatt Hey but they do provide compostable plastic bags for books, Like Reply 0 1 September 19 at 6.31pm Ziska Childs Pat B Like Repb September 20 at 4 27am