HomeMy WebLinkAboutresolution.council.090-19 RESOLUTION NO. 90
(SERIES OF 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND WHITE AND
SMITH, LLC AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract for an Affordable
Housing Fee-in-Lieu Analysis, between the City of Aspen and White and Smith, 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 hereby approves that Contract for Affordable Housing Fee-in-Lieu
Analysis, between the City of Aspen and White and Smith, LLC, a copy of which is attached
hereto and incorporated herein, and does hereby authorize the City Manager to execute said
agreement on behalf of the City of Aspen.
That the City Council, additionally authorizes a ten percent (10%) contingency beyond
the contracted amount if additional, unforeseen expenses occur, and are approved by city staff as
necessary to the completion of the project.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the 26`' day of August, 2019.
Torre, 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, August 26, 2019.
AMA
Linda Manning, I
ty Clerk
I
CITY OF ASPEN STANDARD FORM OF AGREEMENT , Y OF ASPEN
PROFESSIONAL SERVICES
City of Aspen Contract No.: 2019-042
AGREEMENT made as of 26"' day of'August, in the year 2019
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Ben Anderson, Planner; ComDcv
130 South Galena Street Total: $68,720
Aspen, Colorado 81611
Phone: (970) 920-5079
If this Agreement requires the City to pay
And the Professional: an amount of money in excess of
$50,000.00 it shall not be deemed valid
White & Smith, LLC until it has been approved by the City
Council of the City of Aspen.
c/o Tyson Smith, Esq., AICP of White& Smith
tsmith a planningandlaw.corn City Council Approval:
255 King Street ,h
Date: August 26th, 2019
Charleston, SC 29401
Phone: 842.937.0201 Resolution No.90, Series of 2019
For the Following Project:
Affordable Housing Fee-in-Lieu Analysis
Exhibits appended and made a part of this Agreement:
Exhibit A: Scope of Work.
Exhibit B: Fee Schedule and Estimated Project Schedule.
Agreement Professional Services Page 0
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.
To the extent the Scope of Work involves legal services by the Professional, the Professional will
serve under the City Attorney who will coordinate the Professional's legal services under this
Agreement on behalf of the City.
2. Completion. Professional shall commence Work immediately upon receipt of a written
Notice to Proceed frorn 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 no later
than July 1, 2020. 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
Agreement Professional Services Page I
relieved of any liability to the City for damages sustained by the City by virtue of any breach of
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 damages, which arise directly out of this contract, to the extent and for an
amount represented by the degree or percentage such damage is caused in whole or in part by, the
omission, error, or negligence 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, including reasonable
attorney fees, as determined by the final judgment of a court of competent jurisdiction. 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, or reduce any judgment
entered by the court by such amount.
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
assumed by the Professional pursuant to Section 8 above, in the amounts specified below in
subparagraph 9(b). 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.
Agreement Professional Services Page 2
(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 ONE
MILLION DOLLARS ($1,000,000.00) for each accident, ONE MILLION
DOLLARS ($1,000,000.00) disease - policy limit, and ONE MILLION DOLLARS
($1,000,000.00) 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 TWO MILLION DOLLARS ($2,000,000.00) each occurrence and TWO
MILLION DOLLARS ($2,000,000.00) 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.
(c) Except for professional liability, the policy or policies required above shall be endorsed
to include the City as an additional insured. 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
Agreement Professional Services Page 3
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
$387,000.00 per person and $1,093,000 per occurrence)or any other rights, immunities,and
protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 el
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
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 15.04.570,
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
Agreement Professional Services Page 4
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
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:
Agreement Professional Services Page 5
(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.
(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.
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(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.
17. 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,
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:
I. 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.
Agreement Professional Services Page 7
18. 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.
19. 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.
(d) This Agreement shall be governed by the laws of the State of Colorado as from time
to time in effect. Venue is agreed to be exclusively in the courts of Pitkin County,
Colorado.
20. 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 grounds that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
21. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to
the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
22. Third Parties. This Agreement does not and shall not be deemed or construed to confer
upon or grant to any third party or parties, except to parties to whom Vendor or City may assign
Agreement Professional Services Page 8
this Agreement in accordance with the specific written permission, any right to claim damages or
to bring any suit, action or other proceeding against either the City or Vendor because of any
breach hereof or because of any of the terms, covenants, agreements or conditions herein
contained.
23. Attorney's Fees. In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney's fees, as determined by a final judgment of a court of competent jurisdiction.
24. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
25. Certification Re ag rding Debarment, Suspension, Ineligibility, and Voluntary Exclusion.
Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in any transaction with a Federal or State department or agency. It further certifies
that prior to submitting its Bid that it did include this clause without modification in all lower tier
transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any
lower tier participant was unable to certify to the statement, an explanation was attached to the
Bid and was determined by the City to be satisfactory to the City.
26. Integration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
27. Authorized Representative. The undersigned representative of Vendor, as an inducement
to the City to execute this Agreement, represents that he/she is an authorized representative of
Vendor for the purposes of executing this Agreement and that he/she has full and complete
authority to enter into this Agreement for the terms and conditions specified herein.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement of which shall be deemed an original on the date first written
above.
(Signatures on following page)
Agreement Professional Services Page 9
CIS F ASPEN, COLORADO: PR FESSIONAL: � wc/�
1 [Signature] [Signature]
By.-�-nT-Z c. b ref •< .tib [3y: Tyson Smith
[Name] [Name]
Title: Title: Shareholder
G Aug7, 2019
Date: � Z� � Dat,: 9
Approved as to form:
ity Attorney's Office
Agreement Professional Services Page 10
EXHIBIT A PROFESSIONAL SERVICES AGREEMENT
SCOPE OF Work
City of Aspen
Affordable Housing Fee-in-Lieu Analysis
This Scope of Work sets forth the planning and legal services to be provided by White &Smith, LLC and
TischlerBise, Inc. to conduct an Affordable Housing Fee-in-Lieu Analysis.
In general, the City has requested our Team evaluate the current methodologies employed in the
Affordable Housing Fee-in-Lieu program and to recommend improvements related to methodology and
cost assumptions. Our Analysis will be informed by reviewing and summarizing five (5) similar programs
around the country. In addition, White &Smith's land use attorneys will evaluate the legal status of the
current Affordable Housing Fee-in-Lieu program, based on most recent and applicable law, and will
evaluate any recommended methodological or ordinance changes for legal sufficiency.
Tyson Smith, Esq., AICP, of White&Smith,will service as project manager,for the consultant team. In
addition to administering the Analysis, White &Smith will provide legal analysis to the City Attorney's
office and, as directed,to City staff. We also will provide support and legal evaluation to TischlerBise in
the development of its methodological analyses and recommendations.
The following tasks describe the work to be performed by each firm, and Exhibit A—Budget Summary
details the estimated number of hours and costs associated with each task.The anticipated Project
Schedule is provided in Appendix B.
In Task 1, we will narrow the issues of concern for the City and receive stakeholder and City input.
In Task 2, we will prepare a report summarizing our findings and setout recommended areas of revision
in the City's Fee-in-Lieu program.
Building on Task 1 and 2,Task 3 will facilitate informed and specific guidance from the City Council as to
any changes to the program to be performed in Task 4.
• Task 1: Review Current Program & Stakeholder Meetings
• TASK 1A: REVIEW BACKGROUND MATERIALS
Team Members will review all background materials provided by the City related to the City's
Affordable Housing Fee-in-Lieu program, including materials related to:
• Annual updates;
• Construction cost data;
• Housing guidelines
• The Growth Management Quota System & Housing Credits; and
• Related zoning provisions and plan policies;
• The Affordable Housing and Fee-in-Lieu program itself, including ordinances, policies,tracking
and other administrative background related to the current analysis.
Deliverables: N/A
Trips: 0
• TASK 1B: PROJECT ASSESSMENT MEMORANDUM
Based on our review of the City's background materials, we will prepare a 2-3 page memorandum listing
the areas we believe the City is interested in evaluating as part of this Analysis and any areas the Team
Agreement Professional Services Page I I
preliminarily believes should be revisited.The goal with the memorandum is to keep the project
focused on areas of concern as we head into our Stakeholder Sessions.
We will present a draft of the memo to staff, conduct a teleconference call to receive comments, and
finalize the memo, which will help inform and guide the Task 1C Stakeholder Sessions.
Deliverables: Staff and final draft Project Assessment Memorandum
Trips: 0
• TASK 1C: STAKEHOLDER SESSIONS & CITY COUNCIL DISCUSSION
Tyson Smith and Carson Bise will prepare for and attend between 8 and 10 stakeholder interviews in
Aspen over the course of two days. The objective of these initial sessions is to fully develop our
understanding of the City's Affordable Housing program,the impact of and experience with the fee-in-
lieu component, and areas in which local stakeholders feel additional attention or reevaluation would
be beneficial.
We will conduct a 30-minute discussion session with City Council to introduce the members to the
project, scope, and schedule and offer an opportunity to ask questions and give initial feedback or
concerns to be addressed.
Deliverables: Handouts, materials, and presentations needed for Stakeholder Sessions and Council
Presentation, as applicable
Trips: 2 days, 2 persons
• Task 2: Draft Assessment & Recommendations Report
• Task 2A:Jurisdiction Review and Report
In order to broaden our perspectives on potential recommendations, we will evaluate the pros and cons
of other fee-in-lieu programs with similar objectives as Aspen's. While jurisdictions from Colorado and
other resort communities may be relevant,the Team will also consider programs from other states and
kinds of communities.
We will work with staff to develop the list of communities to be reviewed and will then prepare an
overview of up to five (5) related programs. It is anticipated that,for each community evaluated, we
will provide an overview of the program, identify any distinguishable aspects, and list components that
may inform our recommendations in Aspen.
Deliverables: Jurisdiction Review and Report
Trips: 0
• Task 213: Staff Review Draft Assessment & Recommendations Report
Based on our research from other jurisdictions, stakeholder and staff input, and our own legal and
technical research, the Team will develop an Assessment & Recommendations Report outlining areas of
the current program where revisions or updating may be appropriate.The report will summarize
methodological, procedural, and legal components, as follows.
TischlerBise will evaluate the current fee-in-lieu component of the City's Affordable Housing program,
including the underlying methodology. Cost assumptions will be reviewed, based on current and
readily-available data, and recommendations made. TischlerBise also will evaluate alternative
methodologies and sources of relevant cost data and assumptions and identify any areas that should be
updated or revisited.
Agreement Professional Services Page 12
White &Smith will evaluate legal and procedural aspects of the current program and make
recommendations for revisions that will increase equity and efficiency, but which also adhere to the
City's current housing policies and goals. In addition, White &Smith will research and provide guidance
related to the following three legal questions:
1. Evaluate the "fee-in-lieu" as an effective housing production component of the City's current
program and assess the legal issues surrounding its availability as a compliance option.
2. Evaluate legal issues related to mandatory thresholds for providing housing instead of fees-in-
lieu, including the impact of such thresholds on housing production and availability.
3. Evaluate the implications of mandatory thresholds on the City's housing credit program,taking
into consideration the current inventory of credits and recent annual trends.
Finally,the draft Assessment will list the Team's recommendations, providing a narrative discussion of
the goal each change is intended to accomplish, its implications on the City's broader planning and
zoning efforts, and any pros, cons, or legal considerations that may benefit the Council's review and
guidance for revisions during Tasks 3 &4.
The team will prepare a draft of the Assessment & Recommendations Report, which will be provided to
staff and the City Attorney's office, as appropriate, with sufficient time to review and provide written
comments. The City's staff project manager will assemble and reconcile staff comments and forward
these to Tyson Smith,the project manager. Based on staff input, we will hold a teleconference with
staff to ensure we understand completely all input received and obtain any additional guidance.
Thereafter,the Team will prepare a draft for City Council consideration and input in Task 2C.
• Deliverables: Staff Review Draft of the Assessment& Recommendations Report
Trips: 0
• Task 2C: Council Review Draft Assessment& Recommendations Report
Based on staff input in Task 26,we well prepare a revised draft of the Assessment Report for transmittal
to City Council.
• Deliverables: Council Review Draft of the Assessment& Recommendations Report
Trips: 0
• Task 3: Present Assessment & Recommendations Report and Finalize
Recommendations
• Task 3A: Meet with Aspen City Council
Tyson Smith and Carson Bise will prepare for and attend a second work session with the City Council to
review and receive additional input on the Draft Assessment & Recommendations Report. Mr. Smith
and Mr. Bise will discuss the methodological, procedural, and legal aspects of the report and its
recommendations. This is anticipated to be an informal, but expansive work session,to ensure the
Council is well-informed and prepared to give the Team guidance on the direction of Task 4.
Deliverables: Presentation and Handouts/Materials in support of City Council Worksession
Trips: 1 day, 2 persons
• Task 3B: Finalize Assessment Memorandum
Following the input of City Council in Task 3A, we will finalize the Assessment & Recommendations
Report, which will detail the specific objectives and Council-recommended changes to the fee-in-lieu
program and associated ordinances and policies, as applicable.
Agreement Professional Services Page 13
Deliverables: Final Assessment Memorandum
Trips: 0
• Task 4: Prepare Updated City Affordable Housing Fee-in-Lieu Program
Based on the direction of City Council in Task 3B,the Team will work with staff to prepare a
Supplemental Scope of Work, detailed outline,schedule, and cost estimate for updating the City's
Affordable Housing Fee-in-Lieu Program, including, as applicable, revisions to City policies, codes, and
administrative materials.
Upon review and acceptance by the City,the Team will complete the Supplemental Scope of Work.
Deliverables: TBD
Trips: TBD
• Task 5: Additional On-Site Meetings
If meetings in addition to the two on-site meetings set out in Tasks 1C and 3A are requested by staff,
team members will make themselves available, as needed. If additional meetings in Aspen are
requested,Team members will attend meetings at the below fixed fees and costs:
Fees: One day of Meetings: $3,360/person
Two days of Meetings $5,040/person
Travel Costs: $1,500/person
Agreement Professional Services Pa-e 14
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