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AGENDA
CITY COUNCIL REGULAR MEETING
June 23, 2020
5:00 PM, City Council Chambers
130 S Galena Street, Aspen
I.CALL TO ORDER
II.ROLL CALL
III.SCHEDULED PUBLIC APPEARANCES
IV.CITIZENS COMMENTS & PETITIONS
(Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please
limit your comments to 3 minutes)
Meeting number (access code): 126 055 5242
Meeting password: 81611
Tuesday, June 23, 2020
4:30 pm | (UTC-06:00) Mountain Time (US & Canada) | 5 hrs
+1-720-650-7664,,1260555242## United States Toll (Denver)
V.SPECIAL ORDERS OF THE DAY
a) Councilmembers' and Mayor's Comments
b) Agenda Amendments
c) City Manager's Comments
d) Board Reports
VI.CONSENT CALENDAR
(These matters may be adopted together by a single motion)
VI.A.Resolution #048, Series of 2020 - Maroon Creek Pipeline Rehabilitation: Headgate
to Hydropower Plant.
VI.B.Resolution #055, Series of 2020 - Aspen Recreation Center Moore Pool Replaster
Contract
VI.C.Resolution #058, Series of 2020 - Animal Shelter Lease Renewal
VI.D.Draft minutes for June 9th, 2020
VII.NOTICE OF CALL-UP
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VIII.FIRST READING OF ORDINANCES
VIII.A.Ordinance #09, Series of 2020 - Water Efficient Landscape Ordinance
Enhancements
IX.PUBLIC HEARINGS
IX.A.949 W. Smuggler Lot Split - Continuation
X.ACTION ITEMS
X.A.Resolution #052, Series of 2020 - Land Use Code Regulations and Covid-19
Economic Recovery Efforts
XI.ADJOURNMENT
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MEMORANDUM
TO:Mayor and City Council
FROM:Jack Danneberg, Project Manager II
Ryan Loebach, P.E., Sr. Project Manager
THROUGH:Tyler Christoff, P.E., Director of Utilities
MEMO DATE:June 15
th, 2020
MEETING DATE:June 23
rd, 2020
RE:Maroon Creek Pipeline Rehabilitation: Headgate to
Hydropower Plant
REQUEST OF COUNCIL:Staff requests a contract award to Murraysmith, Inc. in the
amount of $196,990 for the survey, inspection, and rehabilitation design of the Maroon
Creek Pipeline from Headgate to Hydropower Plant.
PREVIOUS COUNCIL ACTION: Council has reviewed funding for this project through
the 2020 budget approval process.
BACKGROUND:The City of Aspen produces all its potable drinking water from raw water
supplied by Castle and Maroon Creeks. Creek water is diverted from each source and
conveyed to the Water Treatment Plant (WTP) via two existing raw water pipelines. While
these diversions date back to the 1880’s the modern Maroon Creek Pipeline spans
approximately 3 miles and was installed in approximately 1965, while the modern Castle
Creek Pipeline spans approximately 2 miles and was installed in approximately 1971.
Both pipelines are reaching the end of their expected useful life spans and need to be
repaired or replaced. This project will focus on the repairing the first 6,200 feet of the
Maroon Creek raw water line as this pipeline has experienced more recent and frequent
signs of deterioration. This section of pipeline provides both raw water for potable water
production and producing hydropower at the Maroon Creek Hydropower Plant.
Staff believe utilizing technologies to repair this existing asset in place (in-situ) are the
most cost effective and least disruptive method to increase this infrastructure’s useful life.
This project will enlist the expertise of Murraysmith, Inc to design additional access
manholes and in-situ repair/rehabilitation of the Maroon Creek Pipeline.
DISCUSSION: City staff solicited bids from qualified engineering teams to design this
critical water infrastructure using in-situ repair and rehabilitation methods. Two bids
were received however one bid did not fully meet the requirements and scope
presented in the Request for Proposals. The negotiated bid from the qualified bidder is
summarized below:
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Murraysmith, Inc. $196,990
Staff recommends awarding this design contract to Murraysmith, Inc based on their
qualifications and responsiveness to the Request for Proposals.
FINANCIAL/BUDGET IMPACTS: The proposed project funding and expenditures are
outlined below. Staff is requesting a contingency to address design uncertainties that
may be encountered while surveying this aging asset. These potential tasks include
wetlands/cultural resource permitting, pipeline potholing and geotechnical engineering
at proposed manhole locations. See Task 6 within Exhibit A of the contract for a
description of potential tasks.
Total Project Expenditures
Murraysmith, Inc. Design Contract $ 196,990
Contingency (Based on Task 6 Scope in Exhibit A of Contract)$ 40,850
Total $ 237,840
Funding Budgeted
Utilities 2019 Funding Remaining:
Project 50565, Castle Creek Headgate/Pipeline $ 125,041
Project 50566, Maroon Creek Headgate/Pipeline $ 70,791
Utilities 2020 Funding:
Project 50565, Castle Creek Headgate/Pipeline $ 25,000
Project 50566, Maroon Creek Headgate/Pipeline $ 25,000
Total $ 245,832
ENVIRONMENTAL IMPACTS:Maintaining and improving the City’s raw water
conveyance system creates a more efficient and resilient water system for customers; for
both potable water supply creation and power production. These improvements
ultimately assist the community in their use and access to this important but finite
resource. Infrastructure reinvestment allows the utility to minimize losses and continue to
provide a high level of customer service to the community.
ALTERNATIVES:Resiliency and redundancy are fundamental goals in planning and
implementing a public water system. Staff believe this project is an important step in
addressing system deficiencies. Council can elect to forgo this contract and use existing,
aging infrastructure to continue to supply raw water to both the water treatment and
hydropower plants. This action does not remedy current pipeline failures and improve
pipeline integrity.
RECOMMENDED ACTION: Staff requests a contract award to Murraysmith, Inc. in the
amount of $196,990 for the survey, inspection, and rehabilitation design of the Maroon
Creek Pipeline from Headgate to Hydropower Plant.
PROPOSED MOTION:I move to approve Resolution #048 of 2020.
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CITY MANAGER COMMENTS:
ATTACHMENTS:
A. Contract with Murraysmith, Inc.
B. Resolution # 048 of 2020
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RESOLUTION #048
(Series of 2020)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND MURRAYSMITH, 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
Maroon Creek Pipeline Rehabilitation Plant Project, between the City of Aspen
and, 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 a contract
for Maroon Creek Pipeline Rehabilitation Plant Project between the City of Aspen
and Murraysmith, 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 23
rd day of June 2020.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk, do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, June 23
rd, 2020.
Nicole Henning, City Clerk
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Agreement Professional Services Page 0
CITY OF ASPEN STANDARD FORM OF AGREEMENT V 2009
PROFESSIONAL SERVICES
City of Aspen Contract No.: 51149-2020.
AGREEMENT made as of 1st day of July, in the year 2020.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Ryan Loebach
130 South Galena Street
Aspen, Colorado 81611
Phone: (970) 920-5079
And the Professional:
Murraysmith, Inc
c/o Joel Price, PE
850 W. South Boulder Road, Suite 200
Louisville, CO 80027
Phone: (970) 567-8020
Joel.Price@murraysmith.us
For the Following Project:
Maroon Creek Pipeline Rehabilitation – from Headgate to Penstock
Exhibits appended and made a part of this Agreement:
The City and Professional agree as set forth below.
If this Agreement requires the City to pay
an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date: June 23, 2020
Resolution No.: 048 of 2020
Exhibit A: Scope of Work.
Exhibit B: Fee Schedule.
Total: $196,990
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Agreement Professional Services Page 1
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 no later than
December 1st, 2021. 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
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.
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Agreement Professional Services Page 2
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
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.
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Agreement Professional Services Page 3
(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) The policy or Commercial General Liability and Comprehensive Automobile Liability
policies required above shall be endorsed to include the City and the City's officers and
employees as additional insureds. Commercial General Liability and Comprehensive
Automobile Liability 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.
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Agreement Professional Services Page 4
(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
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.
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Agreement Professional Services Page 5
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
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
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Agreement Professional Services Page 6
(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.
(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.
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Agreement Professional Services Page 7
(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.
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:
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;
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Agreement Professional Services Page 8
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.
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.
20. 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.
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Agreement Professional Services Page 9
21. Third Parties. This Agreement does not and shall not be deemed or construed to confer
upon or grant to any third party or parties, except to parties to whom Vendor or City may assign
this Agreement in accordance with the specific written permission, any right to claim damages or
to bring any suit, action or other proceeding against either the City or Vendor because of any
breach hereof or because of any of the terms, covenants, agreements or conditions herein
contained.
22. 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.
23. 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.
24. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion.
Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in any transaction with a Federal or State department or agency. It further certifies
that prior to submitting its Bid that it did include this clause without modification in all lower tier
transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any
lower tier participant was unable to certify to the statement, an explanation was attached to the
Bid and was determined by the City to be satisfactory to the City.
25. 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.
26. 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.
16
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Agreement Professional Services Page 11
EXHIBIT A PROFESSIONAL SERVICES AGREEMENT
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City of Aspen MURRAYSMITH Maroon Creek Pipeline – Rehabilitation
June 8, 2020 1
EXHIBIT A
SCOPE OF WORK
MAROON CREEK PIPELINE REHABILITATION
FROM HEADGATE TO PENSTOCK
CITY OF ASPEN, COLORADO
General
This Scope of Services has been separated into six different tasks for clarity and is described in
detail below.
Background
The City of Aspen (City) owns and operates two raw water transmission pipelines that convey
surface water from diversions at two creeks, Castle and Maroon Creek, to the City’s Water
Treatment Plant (WTP) and on Maroon Creek a diversion to the Hydroelectric Plant (HP) and the
WTP.
The Castle Creek and Maroon Creek pipelines were constructed in approximately 1964 and 1973,
respectively. While both pipelines include a variety of pipe materials and diameters, a majority of
the Castle Creek pipeline is 30-inch RCP and a majority of the Maroon Creek pipeline is 39-inch
RCP, PCCP with shorter section of DIP.
The City performed manned visual inspections on both pipelines in 2012 and in 2015. These
inspections found that both pipelines were in fair condition, with most deficiencies being located
at pipe joints. However, the inspections only included approximately 20% of the Maroon Creek
pipeline total length and approximately 75% of the Castle Creek pipeline total length. These
inspections were limited by a lack of access points and steep sections of pipe that were not
accessible.
Project Understanding and Assumptions
For this scope of work, the City is interested in prioritizing the rehabilitation of an approximately
6,200-foot section of the Maroon Creek Pipeline (MCP) from the headgate to the tee and valve at
the penstock to the HP. The penstock will need to be rehabilitated from MCP to 100-feet of the
penstock downstream of the valve connection.
The existing site features and access vaults/manholes will be surveyed to verify location in the field
on a design survey.
It is our understanding that the existing easement along the MCP is 40-feet wide based on
conversations with the City. We will verify this easement width at the proposed access manhole
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locations and recommend any additional temporary easements for construction. This will require
title work and easement verification for each of the proposed manhole locations.
Murraysmith and team of subconsultants will investigate this section of MCP to determine
locations for proposed access manholes to be installed. These locations will be identified by
deflections (horizontal and vertical) in the MCP and maximum spacing of 750-feet between access
manhole. Based on the information we have to date and assuming the existing access points are
sufficient for rehabilitation access, we have assumed a minimum of six (6) additional access
manhole locations will be sufficient to rehabilitate the MCP via trenchless technologies.
Portions of this section of MCP have been assessed in various years including 2012, 2015, 2017,
and 2018. We understand that a small section of this line was repaired as late as February 2020.
This section of line is being prioritized due to the recent repairs and the need to protect the
influent source water for the HP.
We will utilize the pipeline assessment along with the survey information to develop bid
documents to include access manholes and rehabilitation. Due to the length and known existing
access points, we will combine the access manhole and rehabilitation design into one task to
expedite the design and construction process. We will review and map this section of line for
locations of Weko-seals, horizontal and vertical bends, visual structural deficiencies, offsets, and
grouting separation at joints. This comprehensive review will allow us to prioritize the critical sub-
sections to be rehabilitated along the entire 6,200 linear feet of pipe.
For the purpose of this contract we have split the contract up into two phases. Phase I will provide
survey, assessment, design and bidding. Phase II will provide construction services and will be
provided as a separate contract in 2021. Phase I will be contracted for 2020. All items addressed
in this scope of work pertain to Phase I.
Phase I Scope of Work
This scope of work describes engineering services to be provided by the Consultant. Work will be
performed by major work tasks, which are outlined as follows:
Baseline Design Task:
o Task 1 – Project Management and Coordination
o Task 2 – Mapping and Assessment
o Task 3 – Design and Permitting
Additional Task:
o Task 4 – Bidding Support
o Task 5 – Construction Support, Record Drawings, and Closeout
o Task 6 – Contingency Design Task
A more detailed discussion of proposed work tasks is provided below.
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Task 1 – Project Management and Coordination
This task includes the administration and coordination of the Consultant’s staff, subconsultants,
and the interface with the City’s project manager and other City staff. Consultant will actively
manage all project work to meet the project budget and schedule. For the purposes of this scope
and budget, an 8-month design and bidding schedule is anticipated. The following subtasks are
included:
Project Administration
Perform general administration and project management throughout Design and Bidding
phases to ensure successful completion of all tasks and elements of the Project within the
established scope, schedule and budget.
Process and submit monthly billings with a summary of project status by task and subtask,
including a summary of invoicing from subconsultants retained for this project.
Provide progress reporting with monthly billings including review of work efforts
completed, forecasted work for the next monthly period, percent completion, and any
encountered or projected challenges or issues.
Maintain the overall project schedule including adding staff subconsultants and other
resources as needed to meet scheduled milestones.
Perform in-house QA/QC reviews of all deliverables prior to submitting review packages to
the City.
Project Design Meetings
Key Project Design Meetings under this subtask include coordinating schedules, developing
agendas and preparing presentation materials for key project meetings during the design phase,
and includes the following five (5) meetings:
Project Kick-off and Field Investigation – City Offices and Onsite
Pipeline Assessment Site Meeting - City Offices and Onsite
Pipeline Assessment Review Meeting – Web or Conference Call
60% Design Completion – Web or Conference Call
90% Design Completion - City Offices and Onsite to confirm final design
Consultant may attend meetings via web or teleconference if agreed upon with City staff prior to
the meeting. Meeting agendas and supporting information will be distributed through the City PM
in advance of meeting. Meeting minutes will be distributed to meeting attendees and other
interested parties within five business days of the subject meeting date.
Task 2 – Mapping & Pipeline Assessment
Preliminary engineering services will be completed under this task. Work will include data
gathering, design survey in coordination with probe and assessment, and preparation of easement
legal descriptions. Anticipated subtasks are outlined as follows:
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Parcel Research and Base Drawing Setup to establish property lines, right-of-way lines, and
existing easements based on existing site features
Locate existing Headgate, Manhole/Valves (4) based on the Figure 1 – Reference from
1973 Design Plans. Per Western Colorado RTVRN GPS Network (COA1)
Subterranean and Grade Survey as a combined effort between C&L and Peak Surveying
Titlework and Easements
Pipeline Assessment and Reporting
It is assumed that the City will obtain the necessary right-of-entry from the landowners for the
field work.
Titlework and Access Verification
Prepare legal descriptions for permanent easements and temporary construction purposes for the
proposed access locations, as detailed below.
Legal descriptions and exhibit maps will be prepared as necessary for anticipated
temporary or permanent access to the project area.
Existing easement dimensions will be determined during design.
Title Commitment Preparation for six (6) proposed access manhole locations.
Pipeline Inventory, Assessment, and Reporting
In addition to the previous reports and assessment performed to date, we will produce a pipeline
assessment report to compliment the work that has been performed to date by others. This
supplemental pipeline assessment will be performed via manned entry and with a AMP probe
assessment. Item includes manned entry inspection through entire proposed pipe length to
acquire dimensional data, location and approximate degree of bends and any other pertinent data
for future rehabilitation adequate/safe passage by the AMP probe. Manned entry needed for
tether to be pulled through for Amp probe. Anticipated subtasks are outlined as follows:
Site visit and mobilization meeting
Pipeline Dewatering prior to manned entry
Pipeline Assessment Report submittal
o Report will include pictures of documented locations of critical longitudinal
cracking, sags, offsets, weko-seals, and bend locations
o Pipeline Assessment Report will be used to compile with previous assessments in
an effort to develop a comprehensive design alternative for rehabbing the entire
6,000 linear feet.
The probe will provide the subterranean Survey database to locate the alignment of the
existing pipeline. This probe will identify sags and offsets which will be confirmed with a
manned entry inspection.
A topographic survey will establish at grade points to be compiled in combination with the
subterranean probe survey. An asbuilt map and plan of the 6,000 linear feet of pipeline
will be developed as part of this survey effort to use for design and locate ideal access
manhole installation points.
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Recommended method of rehabilitation and optimal proposed manhole location based on
pipeline assessment report.
Traffic control or permitting not included for dewatering or assessment
Task 3 – Design and Permitting
Prepare final construction drawings, technical specifications, and contract documents for bidding
and construction of proposed six (6) access manholes along the MCP and rehabilitation of the
pipeline from headgate to the penstock. Murraysmith will produce plans and specifications for
City review at the 60% and 90% completion levels, incorporating City review comments from each
prior submittal. Plan and profile drawings will be provided at an appropriate scale. Construction
drawings and special technical specifications will be in accordance with City standards, policies
and procedures. Front end and Technical specifications will be based on City standard and
Construction Standards Institute (CSI) formats. The engineer’s estimate of probable construction
costs will be updated at each design submittal stage. Subtasks include:
Permitting City of Aspen and Pitkin County
Provide assistance with City of Aspen and Pitkin County floodplain and grading permit
requirements. Roaring Fork Engineering will support a majority of this effort.
Environmental – Army Corps Permitting
Preliminary assessment of proposed manhole locations and access routes to determine if the
Project will include the discharge of fill material into potential Waters of the U.S. This work
includes the work needed to submit an authorization request to the U.S. Army Corps of Engineers
(USACE) Grand Junction Regulatory Office for Clean Water Act Section 404 (Section 404)
authorization for the Project. SWCA’s work would include:
1) Conducting a field delineation of wetland and non-wetland waters at up to five discrete work
areas along the Maroon Creek Pipeline. This work will be done in accordance with the USACE
Grand Junction Regulatory Office’s requirements for this type of evaluation.
2) Developing a wetland delineation report which presents the results of the field delineation. The
report would include a narrative description of the methods and results, detailed mapping,
photographs, and wetland determination data forms.
3) Preparation of a preconstruction notification (PCN) for the Project. While the Project appears
to qualify for Nationwide Permit 3: Maintenance (NWP 3), the fact that the pipeline is more than
50 years old triggers a need to submit PCN to the USACE under General Condition 20.
Following submittal of the PCN to the USACE, SWCA expects that authorization would be received
within 45 days,
pending review and input by the State Historic Preservation Officer (SHPO). This task does not
include mitigation design, onsite meetings with USACE, or other tasks that are not expected, but
which may be required if the USACE determines that additional analysis or coordination is
required.
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60% Design Submittal
Provide 60% design submittal, including construction drawings, draft front end and technical
specifications, contract documents and engineer’s estimate of probable construction costs,
including.
Electronic scalable set of plans (11”x17” PDF format).
Hard copy plans - one full size set (22”x34”).
Front End and Technical specifications for Contract Documents (Word and PDF format).
Engineer’s estimate of probable construction costs (Excel & PDF format).
90% Design Submittal and FERC Letter Amendment
Provide final 90% design submittal including construction drawings, final draft front end and
technical specifications, contract documents and engineer’s estimate of probable construction
costs, including:
Electronic scalable set of plans (PDF and DWG format).
Signed hard copy plans - One Full size set (22”x34”).
Front End Specifications completed in coordination with the City (Word and PDF format).
Technical specifications for Contract Documents (Word and PDF format).
Engineer’s estimate of probable construction costs (Excel & PDF format).
FERC Letter Amendment to include the 90% design package for approval. City to
coordinate the permit approvals. Murraysmith assumes a 2 to 3-page memo including
assessment reports with 90% design documents will suffice for permitting with FERC. If
additional materials and permitting documentation is required, we will negotiate these
services separate of this contract on a time and materials basis.
Contingency Design Task, Bidding and Construction Support Task: Task
4, 5 and 6 are considered additional task that may be used for budgeting purposes during the
design and construction for 2021.
Task 4 – Bidding Support
Bidding Assistance
Under this task, Murraysmith and Roaring Fork Engineer will provide support to the City during
bidding and construction.
Murraysmith:
Provide assistance during project bidding (assumption: one pre-bid meeting and two
addenda).
Construction Set for Contractor and NTP.
City:
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Advertise the project.
Manage printing and/or electronic distribution of construction contract documents.
Receive, open and review bids.
Notify bidders of intent to award.
Manage the contract execution with the successful bidder and provide notice to proceed.
Perform the day-to-day construction management and observation activities, if required.
Pay for permit and easement fees
Task 5 – Construction Support, Record Drawings, and Closeout
Construction Support
Murraysmith and Roaring Fork:
Participation in pre-construction meeting.
Assist City with submittal and shop drawing review and preparation of review comments.
(assumption: review up to 10 submittals plus up to six (6) re-submittals)
Provide consultation for construction contract administration issues.
Interpretation of construction contract plans and specification as requested by the
Contractor or the City. (assumption: 10 RFIs)
Review Change Order documentation as required.
Participation in weekly construction meetings. Murraysmith to participate remotely.
Six (6) site visits will be made by the Consultant during the construction phase, including
on-site construction observation during waterline tie-ins.
Roaring Fork:
Participation and lead weekly construction meetings and site visits – two site visits a week.
Substantial completion walkthroughs
Final completion walkthrough
Prepare record drawings of reported construction based on the Contractor’s field plan mark-ups,
and City and Consultant staff field notes. Provide electronic AutoCAD and PDF files, and one set of
full-size record drawings.
Task 6 – Contingency Design Task
Cultural Resources Assessment & Report
This task consists of conducting a cultural resources assessment for the pipeline and surrounds at
up to five discrete work areas along the Project. This assessment includes desktop and field survey
methods and would result in the development of a report that would be attached to the PCN.
While Task 2 could be delayed until a time where USACE determines that a cultural resources
report is needed to compete the NWP 3 authorization process, that approach could result in delays
in obtaining USACE authorization for the Project. Please note that there is potential that SHPO
could determine that the Project will result in adverse effects to the pipeline and may require
additional research as part of the Project’s authorization.
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Potholing & Surveying at Proposed Access Manholes
In order to confirm exact location and conditions in the field of the pipeline alignment, it may be
necessary to pothole some of the critical locations that need to be confirmed from the
subterranean survey data. We have included it as an optional budget item should we find more
information is important to help minimize risk and provide more accurate and competitive bids
for the project.
Additional Pipeline Inspection Daily Rate
If additional pipeline assessment is required to determine more information for rehabilitation
alternatives, C&L will provide additional detailing of the pipeline with pictures and reports for the
daily rate outline in the detailed fee estimate assigned to Task 6.3.
Geotechnical and Geological Services
At this time we have assumed geotechnical testing will not be required for the base design fees.
If during the design this is deemed necessary, we will engage Kumar and Associates to provide
geotechnical test holes will be performed at each of the proposed access manhole locations. We
have assumed up to six (6) borings will be required for this project.
26
EXHIBIT A - City of Aspen - Maroon Creek Pipeline Rehabilitation From Headgate to PenstockPROPOSED FEE ESTIMATELABOR CLASSIFICATION (HOURS)Principal Engineer IPrincipal Engineer IProfessional Engineer VIIEngineering Designer IITechnician IVProfessional Engineer IIIHoursLaborSub. MultiplierSub. Total with MarkupExpensesCADD Units $18/hrTotalPriceO'SullivanJainAngelosEstepArchuletaPeakC+LKumar/HPSWCARFETask 1 - Project Management and CoordinationTask 1.1 - Kickoff and Initial Field Investigation446142,510$ 1.1-$ 730$ -$ 3,240$ Task 1.2 - Pipeline Assessment Site Meeting446142,510$ 1.1-$ 730$ -$ 3,240$ Task 1.3 - Pipeline Assessment Review Meeting4244142,668$ 1.1-$ -$ -$ 2,668$ Task 1.4 - 60% Design Review Meeting222281,556$ 1.1-$ -$ -$ 1,556$ Task 1.5 - 90% Review Meeting222281,556$ 1.1-$ 730$ -$ 2,286$ Task 1 Subtotal1661620005810,800$ -$ -$ -$ -$ -$ -$ 2,190$ -$ 12,990$ Task 2 - Mapping & AssessmentTask 2.1 - Parcel Research and Base Mapping224668$ 4,000$ 1.14,400$ -$ -$ 5,068$ Task 2.2 - Survey Existing Headgate and Access Pts (Est. 4 AP)1 12 334$ 3,500$ 1.1 3,850$ -$ -$ 4,184$ Task 2.3 - Design Survey & coordination with probe Survey224668$ 12,000$ 1.113,200$ -$ -$ 13,868$ Task 2.4 - Titlework at Access Manhole Locations (Assumed 6)123477$ 5,600$ 1.16,160$ -$ -$ 6,637$ Task 2.5 - Pipeline Mapping, Assessment, and Reporting 1288241687613,136$ 57,500$ 1.163,250$ -$ 288$ 76,674$ Task 2 Subtotal12814311688915,283$ 25,100$ 57,500$ -$ -$ -$ -$ 90,860$ -$ 288$ 106,431$ Task 3 - Design and PermittingTask 3.1 - City of Aspen and Pitkin County Floodplain Dev. Permitting Coordination1 4 8 4 17 2,750$ 3,000$ 1.1 3,300$ -$ -$ 6,050$ Task 3.2 - Preliminary Environmental Assessment - Wetland Mapping/PCN1146985$ 5,000$ 1.15,500$ -$ -$ 6,485$ Task 3.3 - 60% Design Submittal16243260322819232,928$ 1,750$ 1.11,925$ 350$ 576$ 35,779$ Task 3.4 - 90% Design Submittal & FERC Letter Amendment16162454242415826,898$ 1,750$ 1.11,925$ -$ 432$ 29,255$ Task 3 Subtotal344061126605237363,561$ -$ -$ -$ 5,000$ 6,500$ 12,650$ 350$ 1,008$ 77,569$ TOTAL - TASK 1 THROUGH 3625491177766052089,644$ 25,100$ 57,500$ -$ 5,000$ -$ 6,500$ 103,510$ 2,540$ -$ 196,990$ ADDITIONAL TASK:Task 4 - Bidding SupportTask 4.1 - Prebid Meeting 22481,398$ 1.1-$ 480$ -$ 1,878$ Task 4.2 - Addendum144842233,952$ 1.1-$ -$ 72$ 4,024$ Task 4.3 - Construction Set112442142,332$ 1.1-$ -$ 72$ 2,404$ Task 4 Subtotal4581684457,682$ -$ -$ -$ -$ -$ -$ 480$ 144$ 8,306$ TOTAL - TASK 1 THROUGH 4505380170846456597,326$ 25,100$ 57,500$ -$ 5,000$ -$ 6,500$ 103,510$ 3,020$ 144$ 205,296$ Task 5 - Const. Support, Record Drawings & CloseoutTask 5.1 - Construction Easements at Access Manhole Locations (Assumed 6)2244122,018$ 3,500$ 1.13,850$ -$ -$ 5,868$ Task 5.2 - Submittal, Change Order, and RFI's4481682427,146$ 1.1-$ -$ -$ 7,146$ Task 5.3 - Construction Observations and Site Visit (Assumed 8)84816366,480$ 25,000$ 1.127,500$ 3,600$ -$ 37,580$ Task 5.4 - Record Drawings Based on Contractor Markup241282284,478$ 1.1-$ -$ -$ 4,478$ Task 5 Subtotal168224820411820,122$ 3,500$ -$ -$ -$ -$ 25,000$ 1.131,350$ 3,600$ -$ 55,072$ TOTAL - TASK 1 THROUGH 5826712124110468683117,448$ 28,600$ 57,500$ -$ 5,000$ -$ 31,500$ 134,860$ 6,620$ -$ 260,368$ Task 6 - Additional Design TaskTask 6.1 - Army Corps Permitting, Cultural Resources, NWP, if Required0-$ 6,500$ 1.17,150$ -$ -$ 7,150$ Task 6.2 - Potholes at Access Manhole Locations (Assumed 6)112261,009$ 2,000$ 10,000$ 1.113,200$ -$ -$ 14,209$ Task 6.3 - Additional Pipeline Inspection Daily Rate12691,462$ 5,000$ 1.15,500$ -$ 6,962$ Task 6.4 - Geological and Geotechnical Services (Assumed 6 Test Holes)112261,009$ 7,500$ 1.17,150$ -$ -$ 7,150$ Task 6 Subtotal34104213,480$ 2,000$ 5,000$ 7,500$ 6,500$ 10,000$ -$ 1.137,400$ -$ -$ 40,821$ TOTAL - TASK 1 THROUGH 6856712525110868704120,928$ 30,600$ 62,500$ 7,500$ 11,500$ 10,000$ 31,500$ 172,260$ 6,620$ -$ 301,189$ Subconsultants (Including Mobilization and Expenses)SurveyingPipeline Alignment & AssessmentGeotechEnv. PermittingLocal Design & Const. SupportTest Holes (6) at Access MHCity of AspenJune 2020G:\PDX_BD\Clients\Aspen, City of, CO\Maroon and Castle Creek Rehab RFP\Aspen Maroon Creek Pipeline - 6000 linear feet\Fee Estimate\Murraysmith Fee Estimate - Maroon Creek Rehab - Headgate to Penstock_Rev2.xlsxMurraysmithMaroon Creek Pipeline RehabilitationPage 127
Agreement Professional Services Page 12
EXHIBIT B PROFESSIONAL SERVICES AGREEMENT
Fee Schedule
28
Personnel:
Billing Classifications 2020 Rates Billing Classifications
Principal Engineer VI $270 Construction Manager VIII $227
Principal Engineer V $260 Construction Manager VII $219
Principal Engineer IV $250 Construction Manager VI $203
Principal Engineer III $239 Construction Manager V $188
Principal Engineer II $230 Construction Manager IV $178
Principal Engineer I $222 Construction Manager III $162
Professional Engineer IX $212 Construction Manager II $150
Engineering Designer IX $204 Construction Manager I $133
Professional Engineer VIII $202 Inspector VII $188
Engineering Designer VIII $193 Inspector VI $172
Professional Engineer VII $191 Inspector V $156
Engineering Designer VII $184 Inspector IV $145
Professional Engineer VI $182 Inspector III $129
Engineering Designer VI $175 Inspector II $117
Professional Engineer V $171 Inspector I $100
Engineering Designer V $164 Technician IV $155
Professional Engineer IV $161 Technician III $139
Engineering Designer IV $161 Technician II $120
Professional Engineer III $157 Technician I $101
Engineering Designer III $157 Administrative III $110
Engineering Designer II $143 Administrative II $101
Engineering Designer I $132 Administrative I $89
Project Expenses:
CADD Hardware/Software $18.00/hour
Modeling and GIS Hardware/Software $10.00/hour
Mileage Then-current IRS Rate
Postage and Delivery Services At Cost
Printing and Reproduction At Cost
Travel, Lodging, and Subsistence At Cost
Outside Services:
2020 SCHEDULE OF CHARGES
Labor will be invoiced by staff classification at the following hourly rates, which are valid from January 1, 2020 through
December 31, 2020. After this period, the rates are subject to adjustment.
Expenses incurred that are directly attributable to the project will be invoiced at actual cost. These expenses include the
following:
Outside technical, professional, and other services will be invoiced at actual cost-plus 10 percent to cover administration and
overhead.
2020OR/SW WA/ID/CO MURRAYSMITH Confidential
EXHIBIT B
29
CONFIDENTIAL
Page 1 of 3
EMERGENCY RESPONSE RATE SCHEDULE – C&L WATER SOLUTIONS
To That Trade Contractor Agreement
Between the City of Aspen and
C & L Water Solutions, Inc.
303-791-2521
Rate Schedule Available
Units
Site Assessment Response/
Mobilization Time
Critical -
2/8 Hours
Urgent -
8/48 Hours
Description Cost Per Unit ($)
Labor
Superintendent ( per hour ) 1 105.00/157.50ot 105.00/157.50ot
Project Manager 1 150.00 Flat 150.00 Flat
Foreman ( per hour ) 5 87.00/130.5.50ot 87.00/130.50ot
Pipe Layer/Truck Driver ( per hour ) 5 63.00/94.50ot 63.00/94.50ot
Operator ( per hour ) 5 70.00/105.00ot 70.00/105.00ot
Laborer ( per hour ) 5 48.00/72.00ot 48.00/72.00ot
Admin/R.O.W. Permit
(1 hour per project)
1 65.00 LS 65.00 LS
Equipment Transport ( Equipment only )
Low Boy Transport 1 185.00 HR 185.00 HR
Truck, Trailer, or Combination
Transport
2 145.00 HR 145.00 HR
Equipment ( equipment only )
Rubber Tired Backhoe – Cat 430 5 68.00 HR 68.00 HR
Rubber Tired w/Vibratory Plate
Compactor - Model – CVP-40
4 83.00 HR 83.00 HR
Skid Steer - Model – S850 Bobcat 1 42.00 HR 42.00 HR
Skid Steer w/Broom 1 45.00 HR 360.00 Day
Wheel Loader - Large Model – L150
Volvo 7-CY
1 155.00 HR 155.00 HR
Excavator - Small (Zero Swing
Preferred) Model – Link Belt 80
1 68.00 HR 68.00 HR
Excavator - Medium Model – Cat 318
Excavator – Medium Link Belt 145
1 130.00 HR
130.00 HR
3200.00 week
3200.00 week
Excavator - Large Model – Volvo
EC360
1 145.00 HR 4800.00 week
C & L Water Solutions, Inc.
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CONFIDENTIAL
Page 2 of 3
Rate Schedule Available
Units
Site Assessment Response/
Mobilization Time
Critical -
2/8 Hours
Urgent -
8/48 Hours
Description Cost Per Unit ($)
Equipment, Continued ( Equipment only )
Vibratory Compactor - Model – RT-85 1 26.50 HR 26.50 HR
Compaction Wheel for Excavator 1 250.00 Job
Dump Truck - 10 Wheel 5 50.00 HR 50.00 HR
Pickup Truck - 1 Ton and Less 4 35.00 HR 35.00 HR
Pickup Truck - 2 Ton 5 45.00 HR 45.00 HR
Generator - Greater than 30 KW 1 20.00 HR 20.00 HR
Trash Pump – 3” with hoses 6 15.00 HR 122.50 per ea 8
hr day
Trash Pump – 4” with hoses 4 19.00 HR 155.00 per ea
8 hr day
Trash Pump - 6 Inch ( 8” owned ) this
requires fusing of pipe for by-pass
2 110.00 HR
without piping
870.00 per ea
8 hr day without
piping
Other Equipment:
Leak Locator (machine only) 1 102.00 HR 102.00 HR
Shoring Boxes 18 240.00 Day 240.00 HR
Shore Cans 3 240.00 Day 240.00 HR
Jumping Jack Compactors 6 12.00 HR 12.00 HR
Spoils Vac Trailer w/Truck 1 97.50 HR 97.50 HR
31
CONFIDENTIAL
Page 3 of 3
Rate Schedule Available
Units
Site Assessment Response/
Mobilization Time
Critical -
2/8 Hours
Urgent -
8/48 Hours
Description Cost Per Unit ($)
Materials
Erosion Control
Inlet Protection
5.00 per LF
75.00 EA inlet
Steel Plates 5'x10',8x8,8x16 15 49.00 per day 49.00 per day
Plugs 6", 8", 10", 12", 15" 24 30.00 per day 30.00 per day
8”, 10”, 12” or larger Sewer Main re-
line (3 mm Fiberglass UV CIPP)
Quote upon
request
Manhole Rehabilitation, Grout or
inserts
Quote upon
request
Rehabilitation of sewer tap connections
LMK Shorties, epoxy, grout, depends
on the need.
Quote upon
request
32
PEAK SURVEYING, INC
2020
SCHEDULE OF HOURLY RATES
Total project charges are based on hourly rates plus other job related expenses as follows:
PERSONNEL CHARGES
Principal $140.00
Project Manager $100.00
Drafting/Field Technician $85.00
1-Man Survey Crew $120.00
2-Man Survey Crew $150.00
Expert Testimony $275.00
*Overtime performed at the request of the client or requested by the client’s schedule will be
billed at 1.5 times these rates.
REIMBURSABLE EXPENSES
Photocopies $0.20/ea
Mylar Sepias $20.00/ea
Vehicle Mileage $0.60/mi
ATV/Snowmobiles $100.00/day
Out of town living expenses, commercial carrier, vehicle and equipment rental, outside
consultant fees, and miscellaneous expenses will be charged at invoice cost plus 10%.
PAYMENT
Accounts are DUE ON RECEIPT. Peak Surveying, Inc reserves the right to discontinue work
when an account becomes past due. Finance charges in the amount of 1.5% per month
(18% Annual Rate) will be assessed on all accounts not paid by the 31st day after invoice
date. Client/Client Owner agrees to pay reasonable collection and attorney’s fees in the
event of nonpayment.
Cash or checks payable to Peak Surveying, Inc and mail to:
Peak Surveying, Inc
PO Box 1746
Rifle, CO 81650
33
2020 Rate Sheet
Labor Category Rate
Principal Engineer $195/hour
Senior Project Manager $170/hour
Project Manager $155/hour
Senior Project Engineer $140/hour
Project Engineer $125/hour
Design Engineer 2 $117/hour
Design Engineer 1 $110/hour
Design Engineer $95/hour
Inspector (PE) $143/hour
Inspector (EIT) $101/hour
Other Direct Costs Rate
Mileage $0.58/mile
Printing 8.5x11 (black & white) $0.10/sheet
Printing 8.5x11 (color) $0.20/sheet
Printing 11x17 B&W $0.30/sheet
Printing 11x17 color $0.40/sheet
34
Last revised 01.17.2020 Page | 1
Standard Rate Schedule
2020 LABOR CATEGORIES AND BILLING RATES
Principals & Project Management Staff
Project Manager III….……..………………………. $89.00 Project Manager IX………………………………… $153.00
Project Manager IV………..……………………….. $99.00 Project Manager X…….………………………….... $171.00
Project Manager V………..……..….……………… $109.00 Project Manager XI..….………………………….... $187.00
Project Manager VI………..……..………………… $119.00 Project Manager XII………………………………... $205.00
Project Manager VII………..….…………………… $131.00 Principal-in-Charge………………………………… $285-398
Project Manager VIII……………………………….. $142.00
Consulting Services
Cultural Resources Air Quality
Environmental Resources Graphics / Media Production
Paleontology GIS / CADD Resources
Scientific Resources Technical Writing / Editing
Planning Resources Principal Investigator
Information Technology Training / Facilitating
Specialist I……..……………………………….…... $67.00 Specialist IX……..………………………………….. $153.00
Specialist II…………………….…..………………. $79.00 Specialist X….…..………………………………….. $171.00
Specialist III………………….……..………………. $89.00 Specialist XI……..………………………………….. $187.00
Specialist IV…………….……….…………………. $99.00 Specialist XII…..……..……………………………... $205.00
Specialist V………….……………………………… $109.00 Subject Matter Expert…………………………........ $210-324
Specialist VI……..………………………………….. $119.00
Specialist VII……..…………………………………. $131.00 Technician I….……………….……..………….……. $47.00
Specialist VIII……………………………………….. $142.00 Technician II…………………..……..………………. $55.00
Administrative
Administrative I………….……….…..…………..... $42.00 Administrative V………….……….….…………….. $89.00
Administrative II………….……….…..………….... $53.00 Administrative VI…..……………………...………... $101.00
Administrative III……….……….….…….……....... $66.00 Administrative VII.………………………………….. $113.00
Administrative IV……….……….….………………. $77.00 Administrative VIII………………………………….. $125.00
Direct expenses are subject to a 15% administrative markup and subcontractor expenses are subject to a 20% administrative
markup. These rates do not apply to depositions or testimonies at administrative hearings and trials. Such activities fall un der our
Expert Witness rates, which vary by state.
A communication/data fee is invoiced at a rate of 3% of labor to cover such expenses (i.e.: cell phones, data plans, faxes, etc.).
Overtime is invoiced at 1.2 times standard rates.
Per Diem is billed at the GSA rate in place at the time of billing. Mileage is billed at the IRS mileage rate in place at the time of
billing.
35
5020 County Road 154
Glenwood Springs, CO 81601
phone: (970) 945-7988
fax: (970) 945-8454
email: kaglenwood@kumarusa.com
www.kumarusa.com
Office Locations: Denver (HQ), Parker, Colorado Springs, Fort Collins, Glenwood Springs, and Summit County, Colorado
.
FEE SCHEDULE
GLENWOOD SPRINGS
PROFESSIONAL SERVICES
FIELD EXPLORATION
Truck-mounted drill rig
CME-45B ........................................................................................................ $170/hour
Mobilization ................................................................................................... $4.00/mile
All-terrain drill rig ............................................................................................... Cost + 20%
Crew travel ...................................................................................................... $80/man/hour
Special equipment (backhoe, drill bits, well supplies, etc.) .................................. Cost + 20%
Field Engineer or Geologist ..................................................................................... $90/hour
Overtime (over 8 hours/day, Saturday, Sunday and Holidays) ................ 1.5 x hourly rate
LABORATORY TESTING
Fee schedule available on request.
CONSTRUCTION OBSERVATION AND MATERIALS TESTING
Fee schedule available on request.
ENGINEERING
(Includes project planning, administration, analysis, consultation, report preparation, field
and travel time. Expert witness service has a 50% premium hourly rate.)
Principal ................................................................................................................ $200/hour
Senior Project Manager .......................................................................................... $180/hour
Project Manager .................................................................................................... $150/hour
Senior Project Engineer/Geologist ......................................................................... $120/hour
Project Engineer/Geologist .................................................................................... $100/hour
Staff Engineer/Geologist ......................................................................................... $90/hour
CAD/Drafting ......................................................................................................... $80/hour
Word Processing ..................................................................................................... $58/hour
OTHER DIRECT CHARGES
Auto or pickup mileage .......................................................................................... $.70/mile
Out of town living expenses, equipment rental, supplies, etc. .............................. Cost + 20%
REMARKS
Late fee of $30.00 or 1.5% per month (whichever is the greater) charged 30 days from
invoice date plus collection costs, bank charges and reasonable attorney’s fees. Up to 3
copies of report provided for each project. Minimum 2 hour trip charge per day for field
engineer or technician.
Terms and Conditions on Back Effective May 22, 2019
36
Page 1 of 2
MEMORANDUM
TO:Mayor and City Council
FROM:Matt Kuhn, Business Service Director
THRU:Austin Weiss, Interim Parks and Recreation Director
DATE OF MEMO:June 15, 2020
MEETING DATE:June 23, 2020
RE:Aspen Recreation Center Moore Pool Replaster Contract
REQUEST OF COUNCIL: The Parks and Recreation Department is requesting approval of a
contract with Mid-America Pool Renovation, Inc. for services to replaster the Moore Pool at the
Aspen Recreation Center.
PREVIOUS COUNCIL ACTION: The funding for this project was included in the 2020 City
of Aspen Asset Management Plan and approved in the 2020 annual budget process.
DISCUSSION: The Moore Pool was constructed in the early 2000’s and the pool has not been
replastered in the lifetime of the pool. The Family Pool has seen the greatest level of
deterioration over the years due in part to the scouring nature of the lazy river. Staff have placed
several patches in this section of the pool due to plaster loss.
The proposed contract with Mid-America Pool Renovation is planned for a July through mid-
August installation. Typically, the pool is drained ever autumn for cleaning and maintenance,
and an October project was originally anticipated. Staff have accelerated the timeline of this
project in order to accomplish the replaster work during impacts to the Aspen Recreation Center
from Covid-19.
It should also be noted that Council will likely be presented with a separate contract in mid-July
for the replacement of the pool slide staircase at the Aspen Recreation Center. This project is in
the same vicinity, but is a separate project with an alternate timeline for fabrication and install.
The project also includes the installation of a new staircase in a corner of the family pool that
will provide an additional entrance/exit of the pool, and assist with lifeguard’s visibility and
response in this area of the pool.
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Page 2 of 2
Mid-America Pool Renovation was selected following a competitive Request for Proposal. Two
bids were received, and Mid-America Pool Renovation rated highest across the rating factors and
was within budget for the project.
FINANCIAL/BUDGET IMPACTS: The Contract with Mid-America Pool Renovation, Inc. is
in the amount of $98,320, and is within the project budget of $100,000 included in the Asset
Management Plan Fund spending authority for 2020.
ENVIRONMENTAL IMPACTS: The removal of the plaster will generate construction waste
and this waste will be disposed at the landfill.
RECOMMENDED ACTION: Staff recommends approval of the contract with Mid-America
Pool Renovation, Inc.
ALTERNATIVES:Council could direct staff to renegotiate the contract, or to solicit more bids,
which would likely result in delay impacts to the public’s anticipated use and access to the pool
area.
PROPOSED MOTION:“I move to approve Resolution # 055, series of 2020, on the Consent
Calendar of Tuesday, June 23, 2020.
CITY MANAGER COMMENTS:
ATTACHMENTS:
A – Contract with Mid-America Pool Renovation, Inc.
38
RESOLUTION #055
(Series of 2020)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND MID-AMERICA POOL RENOVATION, 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
construction services to replaster the Moore Pool at the Aspen Recreation Center,
between the City of Aspen and Mid-America Pool Renovation, 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 Aspen Recreation Center Moore Pool Replaster, between the City of Aspen
and Mid-America Pool Renovation, 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 23
rd day of June 2020.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held, June 23, 2020
Nicole Henning, City Clerk
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MEMORANDUM
TO:Aspen City Council
FROM:Ron LeBlanc, Special Projects Manager
THROUGH:Sara Ott, City Manager
MEMO DATE:June 15, 2020
MEETING DATE:June 23, 2020
RE:Animal Shelter Lease
Request of Council: City Council is requested to consider the renewal of the lease with Sachson,
Inc. to operate the Cheryl and Sam Wyly Animal Shelter, which is jointly owned by the City of
Aspen and Pitkin County.
Background: The Cheryl and Sam Wyly Animal Shelter is a well-established community facility
that houses one of the most successful animal shelter operations in the United States. The
shelter does not require an operating subsidy from the City or the County which is not the case
in the vast majority of animal shelters across the country.
The Sachson, Inc has operated the shelter for the past 28 years, 14 years at the current facility.
The current facility, the Cheryl and Sam Wyly Animal Shelter was constructed with private funds
raised from the community. The current operator formed the non-profit in 1999 and led the
fund-raising efforts 21 years ago.
The previous lease was approved in December 2005 for a term of 5 years, with two additional
five-year term extensions. The City Council and the Board of County Commissioners approved
each 5-year extension. A records search as part of the due diligence involved with the
preparation of this contract renewal did not reveal any written complaints about the staff or
operations of the Shelter during the past 15 years.
The lease renewal process transpired as a collaborative effort involving Seth Sachson, operator;
Rich Englehart, Deputy County Manager and representing Pitkin County; and Ron LeBlanc,
Special Projects Manager for the City of Aspen and representing the City of Aspen. The City of
Aspen took the lead in organizing the review of the previous lease and the rewriting of the new
lease. Emphasis was given to improving clarity, accountability, and simplifying the terms of the
agreement. A series of meetings were held beginning in January 2020. The last work session
occurred on March 5, 2020. This item was originally scheduled to appear on the April 7, 2020
City Council agenda, but due to the COVID 19 pandemic it was delayed until tonight.
Highlights.
61
1.ARTICLE I GRANT AND TERM. The base term of this lease runs from July 1, 2020
through June 30, 2025. It also provides for two additional successive terms of five years.
This is the same term as the previous lease.
2.ARTICLE II RENT. This represents the major change in the agreement. The proposed
lease proposes a simple rental payment calculation. Starting with the first-year
payment of $20,000, each successive year will be adjusted according to the percentage
of increase in the Denver-Boulder Consumer Price Index. This will provide better public
transparency during the budget process as a fixed amount will appear in the budget.
The previous lease used a complicated “profit sharing” arrangement that proved to be
subjective and expensive to produce, document and verify.
3.ARTICLE III POSSESSION AND USE. The provisions in the section generally remain
unchanged from the past lease. The new lease requires compliance with federal, state,
and local laws. As such, EXHIBIT B, now requires the shelter to “maintain and operate
the shelter according to the latest rules and regulations promulgated by the Colorado
Department of Agriculture.” The Colorado Department of Agriculture is the regulatory
agency for animal shelters and animal boarding facilities. This was not included in the
previous lease.
4.ARTICLE IV CONSTRUCTION-ALTERATIONS-REPAIRS. The major change to this section is
the inclusion of Section 4.7 Climate Change and Conservation Measures. In keeping
with City and County climate change awareness policies, the Shelter agrees to work in
good faith to align operations with the City and County climate action goals. Resiliency
goals will be incorporated into the Best Management Practices for operating the
Shelter.
5.ARTICLE V TRADE FIXTURES. No major changes in this section. A XXXXX
6.ARTICLE VI INSURANCE. This section was revised to reflect the changes to the
Governmental Immunity Act that have occurred since the previous lease was drafted.
By reference to the Governmental Immunity Act, any legislative changes that occur
during the term of this lease will automatically apply to this agreement.
7.ARTICLE VII UTILITY SERVICE. No substantial changes.
8.ARTICLE VIII DEFAULTS. No substantial changes.
9.ARTICLE IX ASSIGNMETN OF SUBLITTING. No substantial changes.
10.ARTICLE X GENERAL PROVISIONS. No substantial changes.
11.EXHIBIT A PREMISES DESCRIPTION. No substantial changes.
12.EXHIBIT B ASPEN/PITKIN COUNTY ANIMAL SHELTER AND CARE SERVICES OPERATING
PROTOCOLS. Improved and clarified definition of “city animal” and “county animal”.
City animals and county animals will be treated the same. Fees did not change.
References to compliance with the Colorado Department of Agriculture rules and
regulations. Hours of operation shall be not less than 7 hours per day, M-F, and not less
than 2 hours per day on weekends. Snowmass Village is now recognized to contract for
these services. Shelter remains a “no kill” facility. Written records as required by the
Colorado Department of Agriculture will be maintained by the operator and available to
the public. A citizen advisory board is authorized.
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Staff Recommendation: Staff recommends approval of the attached AGREEMENT FOR LEASE
AND OPERATION OF THE CHERLY AND SAM WYLY ANIMAL SHELTER.
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RESOLUTION NO. 58
Series of 2020
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING AN AGREEMENT
FOR LEASE AND OPERATION OF THE CHERYL AND SAM WYLY ANIMAL SHELTER
BETWEEN THE CITY OF ASPEN AND THE BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO AS “LESSORS” AND SACHSON, INC., FOR THE
OPERATION OF THE ANIMAL SHELTER ON BEHALF OF THE CITY AND COUNTY AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID LEASE AGREEMENT ON
BEHALF OF THE CITY OF ASPEN.
WHEREAS, there has been submitted to the City Council a proposed agreement for lease
and operation of the Animal Shelter between the City of Aspen, the Board of County
Commissioners of Pitkin County, Colorado, and Sachson, Inc., a Colorado corporation, for the joint
commitment to provide continued animal shelter, boarding and animal care services; and
WHEREAS, after due deliberation and consideration the City Council has determined that
it is in the best interest of the City of Aspen to approve said lease agreement and authorize the City
Manager to execute same on behalf of the City of Aspen, if the Lease Agreement is also approved
by Board of County Commissioners of Pitkin County.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, that the City Council hereby approves the Agreement for Lease and
Operation of the Cheryl and Sam Wyly Animal Shelter attached hereto as Exhibit “A” and does
hereby authorize the City Manager to execute said Lease Agreement on behalf of the City of Aspen,
conditioned upon the approval of such lease by the Board of County Commissioners of Pitkin
County.
Dated: _______________________________, 2020.
______________________________
Torre, Mayor
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I, Nicole Henning, 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 ________________________, 2020.
________________________________
Nicole Henning, City Clerk
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4811-1024-0957.4
AGREEMENT FOR LEASE AND OPERATION
OF
THE CHERYL AND SAM WYLY ANIMAL SHELTER
THIS LEASE AGREEMENT (this “Lease”) is made and entered into on July 1, 2020, by and
between (i) the City of Aspen (the “City”) and (ii) the Board of County Commissioners of Pitkin
County, Colorado (the “County” and together with the City, hereinafter referred to collectively as
“Lessors”), and Sachson, Inc., a Colorado Corporation (“Lessee”), for operation of the Cheryl and
Sam Wyly Animal Shelter (“Animal Shelter”).
WITNESSETH:
WHEREAS, Lessors desire to privatize and contract for the provision of an animal shelter
and animal care services; and
WHEREAS, Lessee desires to provide animal shelter and animal care services to Lessors
upon the terms and conditions as set forth below; and
WHEREAS, Lessee has spent a substantial amount of time and money in fundraising
activities, directly and indirectly, for the acquisition and development of the Premises (as defined
below); and
WHEREAS, Lessors desire that Lessee enjoy the benefits of such expenditures of time and
money as set forth hereunder.
NOW THEREFORE, in consideration of the covenants as contained herein, the Lessors
and Lessee agree as follows:
ARTICLE I
GRANT AND TERM
1.1 Lease Grant. In consideration of the recitals and the mutual covenants herein and the rental
to be paid hereunder, Lessors grant to Lessee a lease of the premises located at 101 Animal Shelter
Road, Aspen, Colorado 81611 (“Premises”), more particularly illustrated on that diagram attached
hereto and incorporated herein as Exhibit A, and subject to utility and other easements in place
and of record or reasonably required to service the Premises and subject to all encumbrances of
record. The Premises includes the entirety of the Animal Shelter building and property, except for
the two rental units located on the Premises, access to such rental units, and parking spaces
reserved for the two rental units, which shall be excluded from the Premises.
1.2 Premises Condition. Lessee hereby expressly acknowledges that it will carefully examine
the Premises prior to occupancy. Lessee will notify Lessor if the condition of the Premises is
satisfactory for all purposes and intended uses hereunder, and if Lessee accepts the same in its then
current state and condition. If accepted, Lessee accepts the Premises on the Commencement Date
“AS IS,” without reliance of any kind on and representations of Lessors with respect thereto, all
of which are hereby disclaimed by Lessors.
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4811-1024-0957.4
1.3 Base Term. This Lease shall commence at 12:01 a.m. on July 1, 2020 (“Commencement
Date”) and continue for a period of five (5) years (through June 30, 2025) (the “Initial Term”),
unless earlier terminated under the provisions hereof. Upon full execution of this Lease, payment
of the $1.00 and required rental amount set forth in Section 2.1(a) below, and compliance with
insurance requirements hereof, Lessee shall be allowed possession of the Premises.
1.4 Successive Terms. If Lessee substantially performs and abides by all material provisions
and conditions of this Lease, upon expiration of the Initial Term of this Lease, Lessee shall have
two (2) consecutive rights of first refusal to renew this Lease for two (2) additional successive
terms of five (5) years (each a “Renewal Term” and together with the Initial Term, collectively,
the “Term”); provided, however, if Lessee does not renew this Lease in writing for a first Renewal
Term by exercising the option granted pursuant to this Section, Lessee shall forgo its right of first
refusal to lease the Premises for a second Renewal Term. In order to exercise its rights of first
refusal to renew this Lease, Lessee shall notify Lessors in writing of its desire to renew this Lease
no less than one hundred and twenty (120) days and no more than one hundred and eighty (180)
days prior to the expiration of the Term then in effect.
1.5 No Partnership or Joint Venture. Nothing contained in this Lease shall create a
partnership or joint venture as between Lessors and Lessee or nor shall this Lease render
Lessors in any way responsible for the debts or losses, of Lessee, it being the express intention
that the relationship of the parties shall be at all times that of Lessors and Lessee. All moneys
payable to Lessors under this Lease, shall be due, payable and collectible as rent, and Lessors
shall have all the rights with respect to the collection thereof as are given under the terms and
conditions of this Lease or under Colorado law with respect to the payment.
1.6 Condemnation by Public Authority. If during the Term, the whole or part of the Premises,
or such portion as will make the Premises unusable for the purpose leased, or the leasehold interest,
be condemned by public authority including Lessors, for public use, then this Lease shall cease as
of the date of the vesting of title in the Premises in such condemning authority, or when possession
of the Premises is given to such authority, whichever event occurs first. In the event of any such
condemnation or if the Premises is otherwise rendered unusable by Lessee, then all rental amounts
due hereunder shall be equitably prorated to reflect Lessee’s inability to utilize the Premises as
intended under the Lease, effective as of such date, and any amounts pre-paid by Lessee hereunder
shall be promptly returned to Lessee.
1.7 Lessee’s Right to Terminate. Lessee may terminate this Lease and be relieved of all
obligations hereunder by providing Lessors sixty (60) days written notice of its intent to
terminate. Upon receipt of such notice, Lessors may participate in the operations of the
Shelter with Lessee to accommodate the transition of Shelter management from Lessee to the
Lessors. Lessee shall provide a full accounting of all funds, costs and equipment upon
termination.
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4811-1024-0957.4
ARTICLE II
RENT
2.1 Rental Payments.
a. Lessee agrees to pay Lessors a fixed rental amount during the Term (the “Rent”) in
accordance with the following: (i) Rent for the period of July 1, 2020 through June 30, 2021 shall
be in the amount of $20,000, which shall be payable in advance to the City upon the full execution
of this Lease. No additional rental (or profit sharing) amounts shall be due and payable with respect
to such period, including amounts that may otherwise have been due under any prior lease; (ii)
commencing on July 1, 2021, the annual Rent will increase by the percentage increase in the
Denver-Boulder Consumer Price Index (“Index”) during the twelve-month period ending on June
30, 2021; and (iii) for each subsequent year thereafter during the Term, the annual amount will be
adjusted by the annual percentage increase in the Index during the twelve months ending on June
30. The annual Rent amount will be paid in advance in a single lump sum amount payable to the
City by July 1 of each year.
b. Should the Index be revised in the future, the parties agree to accept the successor
index published or authorized by the US Department of Labor, Bureau of Labor Statistics.
c. Should the Index be discontinued, the parties shall meet and confer to determine a
mutually acceptable substitute index.
d. Lessee acknowledges that all documents provided by Lessee to Lessor in
accordance with this Lease may be subject to public inspection pursuant to the Colorado Open
Records Act (CORA).
ARTICLE III
POSSESSION AND USE
3.1 Operation of Business. As and in consideration for the use and occupancy of the Premises
and equipment specified hereinabove, Lessee agrees to and shall occupy and use or cause the
Premises to be used for the following purposes:
a. Animal Shelter and Care Services. Lessee agrees to assume the operational
responsibility and management of the Animal Shelter under the terms and conditions as expressed
in Exhibit B attached hereto and incorporated herein.
b. Private Boarding and Care Services. Lessee shall be permitted to operate a private
animal boarding and care service, which may include animal grooming services and a pet shop,
utilizing the portion of the Premises as illustrated on Exhibit A attached hereto. Such private
boarding care services (“Boarding Services”) shall comply with all licensing and animal care
standards as set forth under any federal, state or local law and Lessee shall use commercially
reasonable efforts to segregate its private Boarding Services from the Animal Shelter services it
provides under the terms of this Lease.
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4811-1024-0957.4
3.2 Payment of Taxes. In the event any taxes are levied and assessed upon the Premises or
upon the improvements, fixtures or personal property of Lessee during the Term, or arising
therefrom, or upon the leasehold or possessory interests as created through this Lease, Lessee shall
be solely responsible to satisfy and pay all such taxes in a timely fashion.
3.3 Compliance with Laws. Lessee shall during the Term, materially comply with, observe
and perform all requirements of law and ordinances, including timely payment of sales,
withholding, FICA, personal property, workers’ compensation and unemployment insurance taxes
and payments and shall maintain all required licenses applicable to the Premises or the use thereof,
whether now or hereafter made by any governmental authority, will each month during the Term
(upon reasonable notice) make available for inspection by Lessors copies of all such tax
documentation, and will indemnify Lessors against all losses suffered by Lessors by reason of any
suits, actions, claims or damages by whomsoever brought or made, by reason, of the non-
compliance, non-observance or nonperformance by Lessee of said laws, ordinance, regulations,
orders or required licenses or this covenant.
3.4 Local Laws. Lessee shall have the sole responsibility to obtain all local government
regulatory permits or approvals for the occupancy and use of the Premises under this Lease.
3.5 Restrictions on Use.
a. Nuisance. Lessee shall not use or permit the use of the Premises in any manner that
will create a nuisance or disturb other occupants of the building or properties adjacent thereto; it
being understood and acknowledged that the Animal Shelter and Boarding Services contemplated
hereunder will necessarily involve a certain level of disturbance for occupants and adjacent
properties and that such disturbances will not be deemed a violation of this paragraph.
b. Rental Housing Units. Whenever either of the two rental housing units are vacant,
they shall be made available first to qualified Animal Shelter employees. If there are no Animal
Shelter employees able or willing to rent the rental units, then the units shall be made available to
other qualified City/County employees. In each lease with an Animal Shelter employee, the lease
agreement shall contain a provision that the lease shall terminate 60 days following termination,
for whatever reason, of tenant’s employment with the Animal Shelter. Tenants for the two rental
units shall be qualified through the Aspen/Pitkin County Housing Authority guidelines. Lessors
shall be responsible for all rental unit leases and shall receive all revenues generated from all such
leases. Lessee herein shall not be responsible for any utility or maintenance costs associated with
the two rental units.
c. Hazardous Materials. Lessee covenants and agrees not to suffer, permit, introduce,
or maintain any substances or materials which are considered, at any time during the Term, to be
hazardous or toxic under any federal, state or local laws, rules, or regulations. Lessee shall
indemnify, defend and hold Lessors harmless against any and all loss cost or damages of any nature
whatsoever (including without limitation costs and attorney and professional fees) arising out of
the introduction of any hazardous materials on or to the building or the Premises by or on behalf
of Lessee, its contractors, agents, or employees, including, without limitation, the cost or removing
such hazardous materials.
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d. Trash. All garbage and refuse shall be kept in closed containers, which do not emit
odors as specified by Lessors and shall be placed outside of the Premises, prepared for collection
in the manner and at the times and places specified by Lessors.
e. Temperature. Lessee shall always keep the Premises at a temperature compatible
with comfortable occupancy during business hours and sufficiently high to prevent freezing of
water pipes or fixtures. The plumbing facilities and systems of the building shall not be used for
any purpose other than that for which they are constructed, and no foreign substance of any kind
shall be thrown into the sewer system.
f. Utilities. Lessee will not overload or abuse the electrical wiring, plumbing, floors,
walls or structures serving the building and will install, at Lessee’s expense, any additional
electrical wiring which may be required in connection with any of Lessee’s uses, improvements
or fixtures. Lessors may have an electrical engineer analyze the Lessee’s loads on the system and
adequacy of service and if found deficient may give Lessee notice to upgrade the service. Lessee
shall comply with such notice within ten days. Lessee will not allow water to leak onto or through
floors or walls. Lessee further agrees that Lessee will not install or use any equipment or fixture
which will exceed or overload the capacity of any utility system, and if any equipment or fixture
installed by Lessee shall require additional utility facilities, the same shall be installed and
maintained at Lessee’s expense in accordance with plans and specifications which shall be
approved by Lessors in writing before installation.
g. Clean Condition and Maintenance. Lessee agrees to maintain the Premises in
substantially the manner set forth in the Municipal Animal Shelter and Care Services Policies and
Procedures Manual attached to this Lease as Exhibit B. The Premises and every part thereof shall
be kept by Lessee in a reasonably neat, orderly and clean condition. Lessee shall take no action,
which would jeopardize Lessors’ title to the Premises or jeopardize the value of the Premises or
the building.
h. Antennae. No communications antennae or dish shall be erected on the roof or
outside of the Premises without first obtaining Lessors’ written consent.
i. Sign. Lessee may maintain one acceptable sign on the Premises, which conforms
to requirements of any applicable County zoning and building codes. Lessors acknowledge that
the signage existing on the Premises as of the Commencement Date is acceptable and complies
with current codes.
j. Lighting. Lessee shall not install in, on, or about the Premises any exterior lighting
or use in, on or about the Premises any advertising medium or other device which may be heard
or experienced outside the Premises, including but not limited to flashing lights, flashlights, loud
speakers, tapes, cd’s or phonograph records or radio broadcasts awnings, or any change to the
exterior of the building without first having obtained Lessors’ written consent.
k. Surfaces and Walls. Lessee shall not deface, gouge, mark, paint, stain, drill or
otherwise alter the surface and walls inside or outside of the Premises or any of the support
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columns without the prior specific written approval of Lessors. Lessee shall repair any damage to
the surfaces or support columns caused by Lessee.
l. Record Keeping. During the Term, Lessee shall keep accurate records of all its
operations. Lessee shall maintain records, whether in hard copy or soft copy format, relating to its
operations for at least 36 months from the end of each year to which such documents apply.
ARTICLE IV
CONSTRUCTION-ALTERATIONS-REPAIRS
4.1 Alteration at Lessee’s Expense. Following the inspection of Premises by Lessee that is to
its reasonable satisfaction, Lessee agrees to accept the property in its present condition, as is,
without calling upon Lessors to make any other expenditures or to perform any work for the
preparation of the Premises for Lessee’s use; provided that it will be delivered clean with the
existing plumbing, heating and electrical systems functioning and in good repair. Lessee shall, at
its own cost and expense, make any necessary alterations and installations in the Premises required
for Lessee’s business, using a contractor or contractors who shall have been approved in writing
by Lessors, which approval shall not be unreasonably withheld.
4.2 Preconditions. Prior to commencing any work or installing any fixtures or equipment,
Lessee shall comply with the following preconditions:
a. Approval of Plans. Lessee shall submit the plans and specifications for such
alterations to Lessors for written approval. Such approval will not be unreasonably withheld and
the request for approval shall be responded to within five business days after receipt by Lessors of
such plans. All work to be done by Lessee shall be performed in a workmanlike manner in strict
accordance with the approved plans and specifications without any deviation therefrom, unless
such deviation is also first approved in writing by Lessors. In the event of any construction which
is a material deviation from any approved plans in violation hereof, Lessors shall have the right to
demand construction be immediately stopped, and, if construction continues 24 hours after such
notice, Lessors may dispossess Lessee, lock and secure the Premises and cause all work to cease
until there is compliance with this provision.
b. Permits. Lessee shall obtain (and Lessors shall provide reasonable assistance in
obtaining) the necessary consents, authorizations and licenses from federal, state and municipal
authorities having jurisdiction over the work to be done; and no work shall be started of equipment
installed unless and until all such necessary consents, authorizations and licenses shall have first
been duly obtained by the Lessee or its contractor or other persons doing the work or installing the
equipment on behalf of Lessee. Lessee shall reimburse Lessors for any expenses incurred on
account of the failure by Lessee to comply with any such requirements; and any expenses so
incurred by Lessors as aforesaid shall be deemed additional Rent under this Lease and due and
payable by Lessee to Lessors on the first day of the month immediately following the payment of
the same by Lessors.
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c. Contract – Copy to Lessors. Lessee shall enter into contracts with contractors and
persons who will do the work and install the equipment referred to, which contract will provide
that the work shall be done in a good workmanlike manner in accordance with the approved plans
and specifications and permits and licenses previously obtained and which contract shall provide
that the contractor or other persons above referred to will look solely to Lessee for payment and
will hold Lessors and the property free from all liens and claims of all persons furnishing labor or
materials therefor, or both, and will also require that similar waivers for the right to file liens shall
be obtained from subcontractors or material men. A copy of the contract and evidence of its
recording with the county clerk together with a duly executed waiver of the right to file liens
executed by the contractor or other persons above referred to shall be furnished to Lessors prior to
beginning work.
d. Insurance – Copy to Lessors. Lessee or any contractor of subcontractors employed
by Lessee or any other persons who will do the work or install the equipment as aforesaid, shall
be fully covered by general liability insurance and workers’ compensation insurance, and a copy
of the certificate thereof shall be furnished to Lessors before commencement of any work by any
such contractor or persons as aforesaid. Lessee covenants and agrees to indemnify and hold
Lessors harmless from any and all claims for personal injury, death or property damage occasioned
during the progress or as a result of any or all of the work done as aforesaid in or about the Premises
or the building.
4.3 Mechanics Lien: Notice. Lessee shall keep the Premises and the building free and clear
of all mechanics, material men’s and other liens on account of work done for Lessee. Lessee shall
indemnify Lessors against liability, loss, damage, costs or expenses, including attorney fees, on
account of claims of lien of laborers or material men or others for work performed for or materials
or supplies furnished to Lessee. If Lessee shall desire to contest any claim or lien, Lessee shall
furnish to Lessors security of a cash deposit from Lessee of 20% of the amount of the claim, plus
estimated costs and interest, conditioned on the discharge of the lien or a corporate surety bond
meeting requirements of the applicable statutes sufficient to discharge any lien. If a final
judgement establishing the validity of a lien is entered, Lessee shall pay and satisfy the same at
once. If Lessee shall be in default in paying any charge for which a mechanic’s lien claim or suit
to foreclose the lien has been recorded or filed and shall not have given Lessors security as
aforesaid, Lessors may (but without being required to do so) pay said lien or claim and any costs,
and the amount so paid, together with reasonable attorney fees and costs and expenses incurred by
Lessors in connection therewith shall be immediately due and owing from Lessee to Lessors with
interest in the rate of 5% per annum from the dates of Lessors’ payments. Should any claims of
lien be filed against the Premises or the building or any action affecting the title thereto be
commenced, Lessee shall give Lessors written notice thereof as soon as possible. During any such
work, Lessors shall have the right to post and keep posted upon the premises notices that Lessors’
interest in the Premises should not be subject to any lien for such work done. Lessors hereby
designate Lessee as its agent for the sole purpose of posting in a conspicuous place upon the
Premises a notice containing the following language which Lessee shall be required to post prior
to commencement of work:
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Notice. The interest of Lessors of these premises, the City of Aspen and the
Board of County Commissioners of Pitkin County, and the building and lands
upon which it is situated shall not be subject to an lien for work done or
materials or equipment supplied by any contractor or other person for
Lessee’s improvements pursuant to this Notice and §38-22 105(2), C.R.S.
4.4 Lessee to Compensate Lessors for Insurance Increase. Lessee shall pay upon demand as
additional rent hereunder any increase in Lessors’ insurance premium, which results solely and
directly on account of Lessors’ endorsements covering the risk during work or upon completion
of such alterations or improvements or as a result of subsequent use of the premises by Lessee.
4.5 Lessee’s Maintenance and Repair Obligation. Lessee agrees, during the Term, and at
Lessee’s expense, to maintain the interior of the premises in good condition and promptly and
diligently repair any damage to every part thereof including walls, partitions, doors, door jambs,
closets, door hardware, fixtures, glass, floors, ceilings, railings, banisters, plumbing lines and
fixtures, electric lines and fixtures, gas lines and fixtures, heating and any other items and services
associated with the Premises, with the exception of wear and tear and aging consistent with normal
animal shelter and boarding kennel use, and except such damage as is attributable to the negligence
or the act or omission of Lessors, to promptly and diligently repair any damage to other premises
in the building attributable to the negligence of the act or omission of Lessee, or Lessee’s
employees, guests, or invitees, to maintain and promptly and diligently repair, improve or remodel
the interior of the Premises to meet requirements of any governmental authority having jurisdiction
thereof, and maintain in good condition and promptly and diligently repair and damage to (or
replace if necessary in the circumstances) any trade fixtures installed in or attached to the Premises.
Lessee shall also be responsible for maintenance of grounds and landscaping as well as the parking
lots. Lessors will be responsible for snowplowing.
a. In the event of default by Lessee for failure to perform Lessee’s repair and
maintenance obligations, Lessors shall have the right, but not the obligation, to perform such work
as Lessors deem necessary, and all such costs shall be payable to Lessee on demand as additional
Rent hereunder due on the first day of the following month. Lessors shall have no responsibility
for damage caused through defects or malfunctions of equipment operated by another Lessee.
Lessee agrees to make repairs or compensate any other Lessee or Lessors for damages caused such
Lessee by the negligence or act or omission of Lessee or Lessee’s employees.
b. Lessor reserves the right, from time to time, at its own expense and by its officials,
employees and contractors, to make such alterations, renovations or repairs in and about the
Premises, other than those noted above as required by Lessee. Lessee shall make no claim against
Lessors for any interference with its interest as herein provided in the Premises. Lessors shall
provide reasonable notice to Lessee in advance of any intent to undertake alterations or repairs as
authorized in this paragraph and all work shall be performed at such time as mutually agreed to
between the parties so as to eliminate or minimize any disruption of Lessee’s business and Animal
Shelter operations.
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4.6 Lessors’ Repair Obligation.
a. With respect to Lessors’ repair obligations hereunder, if the damage to the Premises
or the building, as the case may be, is covered by standard fire and extended coverage insurance
and exceeds 50% of the then replacement cost of the Premises or the building, as the case may be
(excluding foundation and excavation costs), or if the damage to the Premises or the building is
not covered by such insurance or if the damage is such that the Premises or building, as the case
may be, cannot reasonably be repaired or reconstructed within a period of 90 days, Lessors may
(but without any obligation to do so) elect to repair or reconstruct the same, in which event this
Lease shall continue in full force and effect, or Lessors may elect not to repair or reconstruct the
same, in which event this Lease shall terminate. In any such event, Lessors shall give written
notice to Lessee of Lessors’ intention within 60 days from the date of destruction; and, if Lessors
shall elect to repair or reconstruct the Premises or the building, as the case may be, Lessors shall
exercise diligence in commencing the work and in prosecuting the same to completion. Lessee
shall not be entitled to damages from Lessors in the event of damage or destruction of the Premises
or said building, by reason of leaking of any water or sewer pipes, or neglect of other Lessees, or
water coming through the ceiling, or gas or electrical problems or for interruption of services or
any inconvenience or loss of business or property sustained by Lessee unless such loss is
attributable to the negligence or the intentional net or omission of Lessors.
b. Lessee’s Rent obligation hereunder shall abate during any period Lessors’ repair
obligation exists and when the Premises are so damaged as to be unusable by Lessee, unless the
damage was caused by Lessee or Lessee’s employees, agents, guests or invitees, in which case the
rental obligation shall continue.
4.7 Climate Change and Conservation Measures.
a. Lessors and Lessee agree to work in good faith to align operations of the Animal
Shelter with the City and County climate action goals. Lessee will consider opportunities to
incorporate resiliency goals into the Best Management Practices for operating the Animal Shelter.
b. Lessors and Lessee agree to jointly conduct an energy assessment of the Animal
Shelter to determine feasibility of replacing fossil fuel-based energy with renewable energy
sources.
c. Lessors and Lessee shall seek opportunities to make capital improvements in the
Premises that will improve the carbon footprint of the Animal Shelter.
ARTICLE V
TRADE FIXTURES
5.1 Lessors’ Furniture, Fixtures and Equipment (FF&E). Lessors are the owners of all attached
furniture, fixtures and equipment (“FF&E”) on the Premises as of the Commencement Date. These
FF&E are and shall remain the property of Lessors. Lessee covenants it will maintain, repair and/or
replace (with items of equal or better quality) any of such FF&E so that, at the expiration or earlier
termination of this Lease, Lessee shall return to Lessors all FF&E which are part of the initial
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inventory or qualifying replacements in good condition, subject to normal wear and tear. Lessee
shall furnish Lessor a list of building contents annually by January 15 of each calendar year and
updated whenever additional FF&E is added by Lessors.
5.2 No Warranties by Lessors. Lessors not being the manufacturer of the FF&E or
manufacturer’s agent, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS
OR IMPLIED, WITH RESPECT TO, AMONG OTHER THINGS, FITNESS, QUALITY
DESIGN, CONDITIOIN, CAPACITY, SUITABILITY, MERCHANTABILITY, OR
PERFORMANCE OF THE FF&E OR OF THE MATERIAL OR WORKMANSHIP THEREOF,
IT BEIND AGREED THAT THE FF&E IS LEASED “AS IS” AND THAT ALL SUCH RISKS,
AS BETWEEN LESSORS AND LESSEE, ARE TO BE BORNE BY LESSEE AT ITS SOLE
RISK. Lessors shall not be liable to Lessee for any liability, loss or damage caused or alleged to
be caused directly or indirectly by the FF&E, by any inadequacy of or defect therein or by any
incident in connection therewith, Lessee, accordingly, agrees not to assert any claim whatsoever
against Lessors based thereon. Lessee further agrees, regardless of cause, not to assert any claim
whatsoever against Lessors for loss of anticipatory profits of consequential damages. No oral
agreement, guarantee, promise, condition, representation, or warranty shall be binding.
5.3 Surrender of Premises: Treatment of Lessee’s Alterations at Expiration or Termination of
Lease. Upon termination of this Lease or termination of Lessee’s possession rights in the leased
Premises, Lessee shall promptly deliver possession thereof to Lessors. All alterations, additions,
improvements, partitions, flooring, carpeting, plumbing fixtures, shelving and other fixtures
(excepting Lessee’s trade fixtures which can be removed without material damage to the leased
Premises, which shall remain the property of Lessee provided Lessee completely repairs such
damage), which may be made or installed by Lessee upon the Premises during the Term and which
in any manner, are attached to the floors, walls, windows, or ceilings, shall become the property
of the Lessors upon the expiration or other termination of this Lease or of Lessee’s possessory
rights hereunder. In all material respects, Lessee shall return the Premises to Lessors in its original
condition existing at the Commencement Date. Lessee agrees to return the Premises to
substantially the same office configuration (walls, partitions, doors, etc.) as when delivered to
Lessee at the Commencement Date. Lessee agrees to perform the work to return the Premises to
the configuration employing professional contractor services, and to perform the work prior to the
termination of the Lease. Lessors shall notify Lessee sixty (60) days prior to the expiration of the
Lease for enforcement of waiver of this provision.
ARTICLE VI
INSURANCE
6.1 Liability and Comprehensive Insurance. Lessee shall maintain comprehensive all risks
casualty, public liability and property damage insurance (at replacement values) with responsible
insurance companies licensed to conduct business in Colorado and acceptable to Lessors which
will insure Lessors and Lessee against liability for bodily injury, loss of life, or other injury, with
limitations in amounts deemed reasonable by Lessors, and shall name Lessors and, at Lessors’
option, Lessors’ mortgagee as an additional insured with respect to each such policy. The amount
of this insurance, without co-insurance clauses, shall not be less than the maximum liability that
can be imposed upon the City of Aspen and the Board of County Commissioners of Pitkin County
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under the laws of the State of Colorado found at C.R.S. § 24-10-101, et, seq., as amended. At
present, such amounts shall be as follows:
$350,000.00 for any injury to one person in any single occurrence.
$990,000.00 for any injury to two or more persons in any single occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set for the
at C.R.S. §24-10-114, as amended.
Copies of such policies shall be promptly delivered to Lessors upon issuance thereof, and, as often
as any such policies shall expire or terminate, renewal or additional policies shall be procured and
maintained by Lessee and copies promptly furnished to Lessors. Lessee shall name Lessor as co-
insured or additional insured on all insurance policies and such policies shall provide for a ten-day
advance written notice to Lessors in the event of cancellation or material change in coverage or 20
days advance notice of cancellation for nonpayment. To the maximum extent permitted by the
insurance policies owned by Lessors and Lessee, the parties hereto for their mutual benefit waive
any and all rights of subrogation, which might otherwise exist. If Lessee fails to comply with this
paragraph, Lessors shall have the right to obtain the said insurance and pay the premiums therefor;
and in such event, the entire amount of such premium shall be immediately paid by Lessee to
Lessors upon demand and as additional Rent hereunder.
6.2 Indemnification. Lessee agrees to indemnify Lessors against all demands, claims, causes
of action, and any expenses (including attorney fees) incurred in resisting such claims, for injury
to person, loss of life or damage to property occurring during the Term or any extension thereof
and (a) occurring on the Premises and arising out of Lessee’s use and occupancy thereof or (b)
occurring outside the Premises if caused by the act, omission or neglect of Lessee or the employees,
agents, contractors, licensees, or sub-Lessees of Lessee while acting within the course and scope
of their employment or engagement with Lessee.
6.3 Fire Insurance. Lessors shall insure the building against fire and other damage to the
building for the leased space for replacement value. During the Term and any extension thereof,
Lessee shall, at its expense, maintain in full force and effect on all of the trade fixtures, interior
furnishing, wall and floor coverings and inventory in the Premises a policy of fire, theft and
malicious mischief insurance coverage with standard extended coverage endorsement to the extent
of replacement cost value naming Lessors as an additional insured party. Lessee shall provide
copies of such policy and any renewals and extensions thereof to Lessors promptly upon issuance.
If this Lease is in effect, the proceeds from any such policy shall be used for the repair or
replacement of the trade fixtures and inventory so insured.
6.4 Waiver of Subrogation. Anything in this Lease to the contrary notwithstanding, neither
Lessors nor Lessee shall be liable to the other for any business interruption or any loss of damage
to property occurring on the Premises or the building or in any manner growing out of or connected
with Lessee’s use and occupation of the building or the condition thereof cause by the negligence
or fault of Lessors or Lessee or of their respective agents, employees, sub-Lessees, licensees, or
assignees to the extent that such business interruption or loss or damage to property is coverable
by a standard all-risk or special form policy (including, at a minimum, fire and extended coverage
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insurance) or a business interruption policy (regardless of whether such insurance is carried or not)
or for which such party is otherwise reimbursed; and Lessors and Lessee waive all right of recovery
against the other, its agents, employees, sub-Lessees, licensees, and assignees for any such loss or
for damage to the property of the waiving party. Each of the parties shall notify its respective
insurance carrier that the foregoing waiver is contained in this Lease and shall require such carrier
to include an appropriate waiver of subrogation provision in its policies.
ARTICLE VII
UTILITY SERVICE
7.1 Supplied to Premises. The City shall pay directly to the respective utilities for all water,
sewer, trash collection, alarm services, natural gas, and electric services. Lessee shall pay as
additional Rent, directly to the City, 82% of the utility bills received from utility companies or
entities providing the utility services referenced above. The tenants of the rental housing units shall
be responsible for paying the remaining 18% for the above referenced utility services (10% by the
tenants of the two-bedroom unit and 8% by the tenant(s) of the one-bedroom unit). Lessee shall
pay directly to the respective utility companies in a timely fashion all deposits, connection and
service charges for utility services not referenced above (e.g. cable television, and any other
utilities used on the Premises from and after the Commencement Date) and shall indemnify
Lessors against any liability therefor. Lessee shall be immediately obligated to Lessors to repay
such sum as additional Rent hereunder. Lessors may make inquiries to any utility servicing the
Premises regarding the status of utility bill obligations.
7.2 Interruption of Services. Lessors shall not be liable to Lessee in damages or otherwise; (i)
if any utility shall become unavailable from any public utility company, public authority, or any
other person or entity (including Lessors) supplying or distributing such utility or (ii) for any
interruption in any utility service caused by the making of any necessary repairs or by any cause
beyond Lessors’ reasonable control or enforcement of the provisions of this paragraph, and the
same shall not constitute a termination of this Lease or an eviction of Lessee. Lessors shall use
reasonable efforts to attempt to schedule any necessary repairs during times when Lessee is not
open for business.
7.3 Notice. Lessee agrees to notify promptly the Lessors or its representative of any accidents
or defects in the Premises of which Lessee becomes aware, including defects in pipes, electric
wiring, and heating or ventilation equipment. In addition, Lessee shall provide Lessors with
prompt notification of any matter or condition of the Premises, which may cause injury or damage
to the building or any person or property therein.
ARTICLE VIII
DEFAULTS
8.1 Lessee’s Default. Each of the following events shall be deemed an “event of default” or a
“default” hereunder if not cured within the time allowed by Paragraph 8.2 hereof:
a. Monetary Default. Any breach of or failure to pay Rent due or other monetary amounts
due hereunder if not paid within five (5) days of the date due.
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b. Other Obligations. Any failure of Lessee to perform any other material obligation or
covenant hereunder.
c. Seizure. Seizure of this Lease or the Premises by execution or other process of law
against Lessee and not discharged within thirty (30) days.
d. Abandonment or Failure to Occupy. Lessee shall vacate (except for temporary closures
expressly permitted under the Lease) or abandon the Premises provided that, except as
otherwise specifically allowed hereunder, Lessee shall be deemed to have abandoned
the Premises, in the event Lessee fails to operate its business therein for five
consecutive business days (unless due to causes beyond Lessee’s control). Lessee shall
fail to take possession of the Premises within thirty (30) days of the receipt of a
certificate of occupancy.
e. Assignment or Transfer. This Lease or the successor in interest of Lessee hereunder
shall be transferred to or shall pass to or devolve upon any other person or party except
as expressly consented to by Lessors in the manner herein provided.
f. Failure to Pay Debt. Lessee generally fails to pay its debts as they become due, and
such failure continues after notice and a reasonable opportunity to cure.
g. Illegal Activity. Lessee shall not at any time, knowingly suffer or knowingly permit
any illegal activity on or use of the Premises by Lessee, its sub-Lessees, licensees,
agents or employees.
8.2 Right to Cure. Lessee shall have a period of ten (10) business days after written notice is
sent from Lessors to cure any failure to pay any Rent or monetary amount due under the Lease.
Lessee shall have a period of thirty (30) business days after written notice of the failure to perform
or observe any other (non-monetary) term, condition, covenant or agreement of Lessee under this
Lease to cure such failure or, if the failure cannot by exercise of reasonable diligence be remedied
within thirty (30) business days after written notice of the failure is delivered to Lessee, Lessee
fails to commence efforts to cure the failure within thirty (30) business days after written notice of
the failure is delivered to Lessee, or if Lessee commences its efforts to cure but thereafter fails to
diligently pursue all action reasonably necessary to cure the failure, or if Lessee fails actually to
cure the failure in all respects within 45 days following delivery of written notice of the failure to
Lessee, Lessee shall be in default.
8.3 Lessors’ Rights. Should Lessee at any time be in default in the performance of any of its
covenants herein and fail to cure such default within the time periods allowed by Paragraph 8.2
above, Lessee’s right to possession of the Premises shall automatically terminate. Upon the
termination of Lessee’s possessory rights in the leased Premises pursuant to the preceding
sentence, the Lessee shall peacefully surrender the Premises to the Lessors. Lessors, at their
option, upon the occurrence of any event of default and at any time thereafter while such event of
default continues, shall have the right to declare by written notice to Lessee the Term of this Lease
ended on the date of such notice or any later date specified therein to take possession of the
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Premises, to exclude Lessee from the Premises, and to remove all persons from the Premises. After
Lessors declare the Term ended as provided herein, Lessee shall have no further claim or right to
possession of the Premises.
8.4 Remedies; Damages. In the event Lessors terminate Lessee’s right to possession of the
Premises pursuant to Paragraph 8.3 above Lessors shall be entitled to payment from Lessee, as its
sole remedy hereunder, Lessors’ direct and reasonable (i) repossession expenses, (ii) broker’s
commissions, and (iii) repair costs, it being acknowledged that ordinary wear and tear will be
excepted.
8.5 Lessors’ Lien. To secure the payment of all Rent and other sums of money due and to
become due hereunder and the faithful performance of this Lease by Lessee, Lessee hereby grants
to Lessors an express first and prior contract lien and security interest on all tangible property
belonging to Lessee (including fixtures, equipment, furniture, furnishings, and other chattels, but
excluding inventory and merchandise) which may be placed in the Premises and also upon all
proceeds of any insurance which may accrue to Lessee by reason of destruction of or damage to
any such property. Such property shall not be removed from the Premises by Lessee, its agents or
assigns, without the prior written consent of Lessors until all arrearages in Rent and other sums of
money then due to Lessors hereunder shall first have been paid. All exemption laws are hereby
waived in favor of said lien and security interest. The provisions of this Paragraph shall constitute
a security agreement under the Uniform Commercial Code. This lien and security interest are
given in addition to any statutory lien to which Lessor is entitled and shall be cumulative thereto
upon the occurrence of an event of default. This lien may be foreclosed with or without court
proceedings by public or private sale provided Lessors gives Lessee at least ten days’ notice of the
time and place of said sale; and Lessors shall have the right to become the purchaser, upon being
the highest bidder at such sale.
8.6 Property Left on Premises. Any property of Lessee or of anyone claiming under, by or
through Lessee which is left on the Premises more than 15 days after expiration of the Term or
termination of possessory rights shall be conclusively deemed abandoned; and Lessors may keep,
use, remove, store, sell, destroy, discard, or otherwise deal with it in Lessors’ absolute discretion
without liability of any sort to Lessee or anyone claiming under, by or through Lessee.
ARTICLE IX
ASSIGNMENT OF SUBLETTING
9.1 Lessors’ Consent to Assignment Required. Lessee shall not transfer, assign, sublet,
mortgage, encumber, or hypothecate this Lease or Lessee’s interest in and to the Premises, or any
part thereof without first procuring the written consent of both Lessors, which shall not be
unreasonably withheld or delayed (within 45 business days of written request form Lessee). Any
assignment or sublet applicant shall be equally or more qualified to perform the obligations of this
Lease. Any attempted transfer, without required consent, shall be void and shall constitute a
default by Lessee under this Lease. In the event of an approved assignment, such transferee,
assignee, sub-lessee or mortgagee shall agree in writing for the benefit of Lessors to assume, to be
bonded by and to perform Lessee’s obligations under the terms, covenants and conditions of this
Lease upon any such assignment. Lessee shall remain liable to Lessors as a principal and not
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merely as a surety for the full performance of the obligations of Lessee hereunder. The granting of
a management contract, concession or license to any person, firm or corporation to operate in or
use in any manner, any portion of the Premises shall be deemed a subletting. Prohibition on
assignment and subletting of this Lease, except as specifically excepted herein, includes a
prohibition on any assignment which would otherwise occur by operation of law, merger,
consolidation, reorganization, transfer or other change of Lessee’s capital structure of ownership,
in whole or in part, and to an assignment to or by a receiver or trustee in any federal or state
bankruptcy, insolvency, or similar proceeding.
9.2 Subleasing to Businesses within Premises. The Parties hereto acknowledge that Lessee’s
business plan requires that a certain portion of the Premises may be sublet to businesses that are
compatible to the operation of an animal shelter. The parties hereto further acknowledge that
Lessee may charge those third-party businesses for rent or for other services rendered by Lessee.
Lessee shall obtain the prior written approval of Lessors prior to entering into any sublease with
third party businesses to operate within the premises. The approval of Lessors shall not be
unreasonably withheld, and Lessors approval of disapproval shall not be delayed by more than 10
business days.
9.3 No Waiver. Consent by Lessee to any one assignment or sublease shall not constitute a
waiver with respect to any further assignments or subleases. Lessors, in approving any assignment
or sublease, shall be entitled to consider among other things, the financial capability of the assignee
or sub-lessee and compatibility of the proposed use with other uses in the building. If Lessee shall
purport in violation hereof to assign this Lease or sublet all or any portion of the Premises or permit
any person or persons other than Lessee to occupy the premises, Lessors may collect rent from the
person or persons then occupying the Premises and apply the net amount collected to any damages
or the rent reserved herein, but no such collection shall be deemed a waiver of this Article or the
acceptance by Lessors of such purported assignees or subleases of Lessee or occupant or the
release of Lessee of the further performance by Lessee of covenants of Lessee herein,
ARTICLE X
GENERAL PROVISIONS
10.1 Successors to Lessors. The term “Lessors” herein shall be limited to mean and include
only the owner or owners at the time in question of the fee interest in the building; and, in the event
of any transfers of the title to such fee, Lessors herein named (and, in the case of any subsequent
transfers or conveyances, grantor) shall be automatically freed and relieved, from and after the
date of such transfer or conveyance, of all liability as respect the performance of any covenants or
obligations on the part of Lessors contained in this Lease thereafter to be performed, provided
transferee shall in such assignment agree to assume and perform Lessors’ obligations hereunder
and provided that any funds in the hands of Lessors or the then grantor at the time of such transfer,
in which Lessee has an interest, shall be delivered to the grantee, it being intended hereby that the
covenants and obligations contained in this Lease on the part of Lessors shall be binding on
Lessors, its successors and assigns, only during and in respect to their respective successive periods
of ownership of the fee.
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10.2 Subdivision. Lessors reserve the right, without the consent of the Lessee to execute and
record such declarations, restricting covenants, maps or other documents or amendments or
supplements thereto for the purpose of subdividing or re-subdividing the building containing the
Premises into separate units and common elements pursuant to the Colorado Common Interest
Ownership Act, provided that the Lessor’s right as declarant and owner thereof shall be subject
and subordinate to the possessory and other rights of the Lessee to the Premises under this Lease.
10.3 Accord and Satisfaction. No payment by Lessee or receipt by Lessors of a lesser amount
than the Rent due hereunder shall be deemed to be other than on account of the earliest rent due
and payable hereunder. Any endorsement or statement accompanying or inserted upon any check
or payment as rent shall not be deemed an accord and satisfaction, and Lessors may accept any
such check or payment without prejudice to Lessors’ rights to recover the balance of such rent or
pursue any other remedy provided in this Lease or at law or in equity.
10.4 Non-Waiver. Failure of Lessors to require strict performance of any covenant or condition
shall not be deemed a waiver of such covenant or condition as to that or any subsequent failure.
One or more waivers of any breach of any covenant or condition by Lessors shall not be construed
as a waiver of a subsequent breach of the same of any other covenant or condition, and the consent
or approval by Lessors to or of any act by Lessee requiring Lessors’ consent or approval shall not
be deemed to waive or render unnecessary Lessors’ consent or approval to or of any subsequent
similar or dissimilar act by Lessee. The acceptance of rent hereunder by Lessors shall not constitute
a waiver of any preceding breach by Lessee of any term, covenant, or condition of this Lease other
than the failure of Lessee to pay the particular rental so accepted, regardless of Lessors’ knowledge
of such preceding breach at the time of acceptance of such rent. No waiver of any provision of
this Lease shall be effective unless it is in writing and signed by Lessors.
10.5 Estoppel Certificates. Lessee agrees at any time and from time to time, upon ten days’
prior request by Lessors to execute, acknowledge, and deliver to Lessors a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified and stating the modifications),
and the dates on which the Rent and other charges have been paid in advance, if any, and
confirming Lessee’s acceptance of the Premises, the Commencement Date, and the Rent provided
under the Lease, and any other affirmations or certifications reasonably requested by Lessors with
the intent that the statement delivered, may be relied upon by any prospective purchaser,
mortgagee, or assignee of any mortgagee of the building or the Premises.
10.6 Attorney Fees. Reasonable costs and attorney fees and other expenses incurred by the
Lessors in obtaining legal advice, preparing notices or demands or otherwise enforcing any
provision of this Lease by reason of a default by the Lessee or by anyone holding under Lessee in
complying with any requirement of this Lease shall be paid by Lessee as additional Rent within
three days of notice of the amount thereof. All reasonable attorney fees incurred by the Lessors
by reason of any action which Lessors shall institute or be made a party because of this Lease
(unless Lessors is joined because of acts of Lessors determined by such litigation to be wrongful)
shall be awarded to Lessors.
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10.7 Interest. Without affecting any of Lessors’ rights hereunder, any sum provided for herein
accruing to Lessors under the provisions of this Lease other than Rent, which shall not be paid
when due shall bear interest at the rate of 7% per annum from the date of an event of default until
paid in full.
10.8 Recording. Lessee shall not record or permit the recordation of this Lease or any
assignment, sublease, license, grant of concession, mortgage or any other document evidencing
the transfer or hypothecation of all or any part of this Lease or Lessee’s interest in the Premises
without in each instance having received the prior written consent of Lessors. Lessors may file or
record this Lease or any of the documents related to this Lease or a summary of some of all the
provisions hereof at any time without Lessee’s consent.
10.9 Notices. Wherever in this Lease it shall be required or permitted that notice or demand be
given or served by either party to this Lease on the other, such notice or demand shall be given or
served in writing and either personally served at or forwarded by certified mail to the following
addresses and shall be deemed effective upon personal service or deposit as certified mail:
To Lessors:
For City: Aspen City Manager
130 South Galena Street
Aspen, Colorado 81611
With a Copy to: James R. True, Esq.
City of Aspen Attorney’s Office
130 South Galena Street
Aspen, Colorado 81611
For County: Pitkin County Manager
530 East Main Street, Suite 302
Aspen, Colorado 81611
With a Copy to: John M. Ely, Esq.
Pitkin County Attorney’s Office
530 East Main Street, Suite 302
Aspen, Colorado 81611
To Lessee: Sachson Inc. c/o
Cheryl and Sam Wyly Animal Shelter
101 Animal Shelter Road
Aspen, Colorado 81611
Attn: Seth Sachson
With a Copy to: Michael H. Newman, Esq.
Foley & Lardner LLP
2021 McKinney Avenue
Suite 1600
Dallas, Texas 75201
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Either party may change such address from time opt time by written notice given as herein above
provided.
10.10 Additional. In addition to the other remedies in this Lease provided, Lessors shall be
entitled to the restraint by injunction of the violation or attempted or threatened violation of any
of the covenants, conditions or provisions of this Lease.
10.11 Holding Over. Any holding over after the expiration of the Term shall be construed to be
a tenancy from month-to-month with the fixed monthly rent at 150% of the then current monthly
rental rate herein provided for the last month of the then current Term and which tenancy shall
otherwise be on the conditions herein specified except that Lessors shall have the right to terminate
such tenancy at the end of any calendar month upon ten days’ advance written notice.
10.12 Covenant of Quiet Enjoyment. So long as Lessee is not in default or breach hereunder, the
Lessors covenants that the Lessee shall peaceably and quietly occupy and enjoy the leased
Premises subject to the terms hereof. The Lessors warrants and agrees to defend the title to the
Premises and further warrants that they have full authority to execute this Lease.
10.13 Severability. The terms, conditions, covenants, and provisions of this Lease shall be
deemed to be severable. If any provision contained herein shall be determined to be invalid by a
court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity
of any other clause or provision herein.
10.14 Entry by Lessors. Lessors and their authorized agents, employees, attorneys and
contractors shall be entitled upon reasonable notice, at all posted business hours (and in
emergencies at all times), to enter the Premises to inspect the same or determine compliance
herewith and shall have all such rights as may enable Lessors promptly, efficiently and
economically to carry on any work or repair, reconstruction, or restoration, to which Lessors are
obligated hereunder. Lessee waives any claims for damages for business interference,
inconvenience of loss of quiet enjoyment or other loss occasioned by such entry and repairs unless
such repairs were occasioned by the negligence of intentional acts of Lessors. Lessors and their
authorized representatives shall have the right to enter the Premises at times other than Lessee’s
business hours to exhibit the Premises to prospective purchasers, lenders, or Lessees. Lessors
agree to provide Lessee with reasonable prior notice, whenever they deem it necessary to enter.
Lessee shall always have and retain a key with which to unlock all the doors in, on, or about the
Premises. Lessee may not change the locks on the Premises without Lessors’ prior written
approval; and, upon such approval, Lessors shall be provided a key to any changed locks. Lessors
shall have the right to use any and all means, which Lessors may deem proper to open doors in
and to the Premises in an emergency in order to obtain entry to the Premises. Any entry to the
Premises obtained by Lessors by any means shall not under any circumstances be construed or
deemed to be a forcible of unlawful entry into or a detainer of the Premises, or an eviction, actual
or constructive of Lessee from the Premises, or any portion thereof, nor shall any such entry entitle
Lessee to damages or an abatement of rent or other charges, which this Lease requires Lessee to
pay.
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10.15 Binding Effect. This Lease and all agreements herein contained, shall bind the parties
hereto. Each term and each provision of this Lease shall be construed as and shall have the same
force and effect as though made in the form of a covenant. The parties covenant that the signatory
to this Lease has the authority to sign this Lease on behalf of the principal.
10.16 Counterparts. This Lease may be executed in counterparts and with facsimile or emailed
or scanned (.pdf) signatures which taken together shall be one document. The parties shall deliver
original signed copies within seven days of facsimile, scanned or emailed (.pdf) transmission of
their signature.
10.17 Governing Law. This Lease shall be construed in accordance with the laws of the State of
Colorado. The parties agree to submit to the personal jurisdiction of the State of Colorado in
connection with any action or proceeding relating to this Lease or the Premises. The parties
expressly acknowledge and agree that venue of any action shall be in Pitkin County, Colorado.
10.18 Time of Essence. Time is of the essence for all obligations in this Lease.
10.19 Lessee’s Authority. Lessee shall not be construed as or have any authority to act as the
agent of Lessors concerning the Premises. Lessee shall have no authority to surrender, waive,
compromise, alter or convey any of Lessors’ rights in the Premises.
10.20 Headings. The headings and captions contained in this Lease are inserted for convenience
of reference only and are not to be deemed part of, or to be used as an aid in construing, this Lease.
10.21 Survival. All the representations, warranties, and covenants in this Lease shall survive the
expiration of termination of this Lease to the extent applicable.
10.22 Entire Agreement. This Lease covers in full each and every agreement of every kind and
nature whatsoever between the parties hereto concerning the Premises, and all preliminary
negotiations, any prior leases and agreements of whatever kind or nature are merged herein.
Lessors have made no representations or promises whatsoever with respect to the Premises and/or
the building except those contained herein, and no person, firm or corporation has, at any time,
had any authority from Lessors to make any representations or promises on behalf of Lessors; and
Lessee expressly agrees that, if any such representations or promises have been made by others,
Lessee hereby waive all right to rely thereon. No verbal agreement or implied covenant shall be
held to vary the provisions hereof, any statute, law or custom to the contrary notwithstanding.
10.23 Waiver of Jury Trial. Lessors and Lessee waive any right to a trial by a jury of any dispute
related to this Lease.
10.24 Force Majeure. In the event that the Lessors or the Lessee shall be delayed or hindered or
prevented from the performance of any act required hereunder, by reason of governmental
restrictions, scarcity of labor or materials, strikes, pandemics or for other reasons beyond such
party’s control, the performance of such act shall be excused for the period of delay; and the period
for the performance of any such act shall be extended for the period necessary to compete
performance after the end of the period of such delay.
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10.25 Amendment or Modification. Except as otherwise provided herein, this Lease and all these
terms and conditions may not be amended or modified absent a written agreement duly executed
by the parties.
[SIGNATURE PAGES FOLLOW]
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Signature Page to Aspen Animal Shelter Lease Agreement
4811-1024-0957.4
LESSORS:
CITY OF ASPEN APPROVED AS TO FORM:
By: By:
Print Name: James R. True, City Attorney
Title:
Date: Date:
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO APPROVED AS TO FORM:
By: By:
Steven F. Child, Chair John Ely, County Attorney
Date: Date:
LESSEE:
SACHSON, INC.
By:
Seth Sachson, President
Date:
Exhibits Attached:
Exhibit A – Premises Description
Exhibit B – Animal Shelter and Care Services Operating Protocols
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Exhibit A to Aspen Animal Shelter Lease Agreement
4811-1024-0957.4
EXHIBIT A
PREMISES DESCRIPTION
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Exhibit B to Aspen Animal Shelter Lease Agreement
4811-1024-0957.4
EXHIBIT B
ASPEN/PITKIN COUNTY
ANIMAL SHELTER AND CARE SERVICES
OPERATING PROTOCOLS
1. Definitions.
A. “City” shall mean the City of Aspen, Colorado its officers and employees.
B. “County” shall mean the County of Pitkin, Colorado, its officers and employees.
C. “Operator” shall mean that person or entity charged with the operational responsibility
for the Aspen/Pitkin County Animal Shelter.
D. “Shelter” shall mean that portion of the building at 101 Animal Shelter Road, Aspen,
Colorado, that houses the Aspen/Pitkin County Animal Shelter.
E. The term “City Animal” refers to an animal that is either found wandering within the
municipal boundaries of the City of Aspen, or an animal that is released to the shelter
by an owner who resides within the municipal boundaries of the City of Aspen. The
term “County Animal” refers to an animal that is either found wandering within the
unincorporated areas of Pitkin County, or an animal that is released to the shelter by an
owner who resides within the unincorporated areas of Pitkin County.
2. Rules Pertaining to the Administration and Enforcement of the Pet Animal Care and
Facilities Act.
Animal care facilities in Colorado are regulated by the Colorado Department of Agriculture.
Operator shall furnish the annual inspection report performed by the Colorado Department of
Agriculture.
Operator shall maintain and operate the shelter according to the latest rules and regulations
promulgated by the Colorado Department of Agriculture.
Operator shall be responsible for conforming to and abiding by changes to the Pet Care and
Facilities Act which may be amended and revised from time to time by the Colorado General
Assembly.
Operator shall secure and maintain all necessary federal, state, and/or local licenses required to
operate a kennel.
3. Hours of operation. Shelter may be open to the public not less than seven (7) hours per
day, Monday through Friday, and not less than two (2) hours per day on weekends, holidays
excluded.
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Exhibit B to Aspen Animal Shelter Lease Agreement
4811-1024-0957.4
4. Found Animals.
Operator shall accept all dogs and cats brought to the Aspen/Pitkin County Animal Shelter which
are found wandering from within the Aspen/Pitkin County jurisdiction. Animals found running at
large and impounded at the shelter shall be available for adoption after waiting at the shelter for
eight (8) calendar days.
If an owner comes for his/her dog within the eight-day period, the operator may charge an impound
fee of $50 for the first calendar day, and $30 for each additional calendar day.
5. Surrendered Animals. Operator shall accept all dogs and cats surrendered to the
Aspen/Pitkin County Animal Shelter by all citizens residing within the Aspen/Pitkin County
jurisdiction. Operator may charge a $50 surrender fee for each animal released to the shelter by its
owner. Animals surrendered to the shelter by their owner shall be available for adoption
immediately unless the animal is deemed to be unadoptable.
6. Redeemed Animals.
All owners seeking to redeem their animal(s) impounded from within the City of Aspen
jurisdiction shall first be referred to the Aspen Police Department for issuance and receipt of any
animal control violation citation. Owners shall not be permitted to redeem their animal without
first providing Operator with written authorization from the Aspen Police Department. In place of
written authorization from the Aspen Police Department, a verbal release by the Aspen Police
Department to the shelter Operator is also valid.
All owners seeking to redeem their animal(s) impounded from within the Pitkin County
jurisdiction shall first be referred to the Pitkin County Sheriff’s Department for issuance and
receipt of any animal control violation citation. Owners shall not be permitted to redeem their
animal without first providing Operator with written authorization from the Pitkin County Sheriff’s
Department. In place of written authorization from the Pitkin County Sheriff’s Department, a
verbal release by the Pitkin County Sheriff’s Department to the shelter Operator is also valid.
7. Adoption.
Each animal made available for adoption via the Aspen/Pitkin County Animal Shelter will be
neutered and vaccinated per the rules and regulations of the Colorado Department of
Agriculture.
Operator may charge a $100 adoption fee plus tax for each animal adopted from the shelter.
8. Snowmass Village. In order to assist the Town of Snowmass Village, the City of Aspen
and Pitkin County have entered into an agreement with Snowmass Village. Operator will accept
homeless dogs and cats from Snowmass Village as quarantined animals, found animals and/or
surrendered animals. Operator will abide by all Colorado Department of Agriculture rules and
regulations pertaining to each animal from intake to adoption and everything in between. All
operating protocols agreed upon by Operator and Aspen/Pitkin County will be in effect, but
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Exhibit B to Aspen Animal Shelter Lease Agreement
4811-1024-0957.4
Aspen/Pitkin County will have no financial obligation for any Snowmass Village animals.
Operator will pay for room and board, while Snowmass Village will pay for any medical expenses
until the animal(s) is returned to its owner or adopted into a new home.
9. Goodwill Animals. In order to save as many homeless pets as possible, Operator may,
when space permits, accept animals from outside of the Aspen/Pitkin County jurisdiction. These
animals are labeled as Goodwill animals because they are accepted out of goodwill as opposed to
jurisdictional obligation. Operator will abide by all Colorado Department of Agriculture rules and
regulations pertaining to each animal from intake to adoption and everything in between. All
operating protocols agreed upon by Operator and Aspen/Pitkin County will be in effect, but
Aspen/Pitkin County will have no financial obligation for any Goodwill animals.
10. Recordkeeping and reporting.
Per the Colorado Department of Agriculture, Operator shall maintain up to date and complete
records of each animal(s) housed in the shelter. These records will be submitted to the Colorado
Department of Agriculture annually. Additionally, Operator shall document the name, address and
telephone number of all persons presenting an animal(s) for impoundment at the shelter, redeeming
an animal(s) from impoundment, and/or adopting an animal(s) from the shelter. These records will
be made available by the Operator to the City of Aspen and Pitkin County upon request by the
City/County.
Operator shall maintain accurate financial records for each type of service provided at the facility.
11. Miscellaneous costs.
The City of Aspen and Pitkin County will, at their expense, be responsible for veterinarian services
and medical expenses required for City and County animals housed at the shelter unless the
aforementioned veterinarian services and medical expenses are caused by negligence of the
operator.
Spay/neuter policy. Per the Colorado Department of Agriculture, all animals must be
spayed/neutered prior to adoption. Operator, however, is authorized to except the spay/neuter
policy upon a determination that for health reasons the animal must wait to be sterilized at a later
date.
12. Euthanasia.
Shelter shall operate as a “no kill” shelter.
Only a licensed veterinarian working on behalf of the Shelter can authorize the euthanasia of an
animal.
All euthanized City /County animals shall be the responsibility of the City or the County, including
all costs associated with the procedure.
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Exhibit B to Aspen Animal Shelter Lease Agreement
4811-1024-0957.4
All animal remains shall be humanely handled and disposed of in a respectful manner.
Per the Colorado Department of Agriculture, Operator shall maintain a written record identifying
the animal and physical condition prior to death and the date of euthanasia for every animal
euthanized.
13. Citizen Board. Operator acknowledges that the City/County have formed a citizen board
known as the Aspen/Pitkin County Animal Shelter Advisory Board to provide recommendations
and advice to the operator and the City/County in the operation of the shelter. Operator agrees to
cooperate with the advisory board.
14. Fees and Charges. Operator shall charge, collect and retain the following fees:
Impound Fee: $50 on the first calendar day of impoundment and $30 each additional
calendar day.
Surrender Fee: $50 for each animal released to the shelter.
Adoption Fee: $100 plus tax for each animal adopted.
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
At 5:00 p.m. Mayor Torre called the regular meeting to order with Councilmembers Richards, Mesirow,
Mullins and Hauenstein joining via video conference.
SCHEDULED PUBLIC APPEARANCES:
Annie Denver Recognition Proclamation – Mayor Torre read the proclamation. Annie Denver spoke
about the John Denver Sanctuary and said it is everything she and Jeff Woods and the Parks Department
ever dreamed about and has been her delight and her joy.
Jeff Woods Retirement Proclamation – Mayor Torre read the proclamation. Jeff Woods thanked council
and spoke about his time with the city.
Council thanked both Jeff and Annie for his service to the city and for the John Denver Sanctuary.
Janice Voss, Pitkin County Clerk – Ms. Voss spoke about the upcoming election for the June 30
th primary.
She said she is excited to follow Annie and Jeff and congratulated both. She said that ballots dropped
yesterday, and each party will receive their own ballot. She asked everyone to vote by mail to curb the
spread of COVID. She advised people to go to pitkinvotes.com if you haven’t received a ballot. She
talked about the three drop boxes on Main Street, in Snowmass and in Basalt. The 17-year olds who
registered and turn 18 on or before election day, will also receive their ballots in the mail and will be
able to vote.
Mayor Torre read a letter which was published in the newspaper and was signed by himself, city council,
the Chief of Police, Richard Pryor, and Sara Ott regarding the death of George Floyd.
Council commented on the rallies and protests they attended over the past weekend.
CITIZEN COMMENTS:
Sandy Mulcahy – Ms. Mulcahy spoke about APCHA and the district court regarding the case against Lee
Mulcahy.
Shawn Cox – Ms. Cox read an excerpt from a letter which is in our public record regarding lack of trust in
the government and APCHA regarding the case against Lee Mulcahy.
Lee Mulcahy – Mr. Mulcahy said cited an article called Death in Texas. He said there is a hearing on July
29th at 2:30 online. He asked Skippy to speak with the APCHA board on his behalf and mentioned
defunding the police.
COUNCILMEMBER COMMENTS:
Councilwoman Richards said she has major concerns on reopening when there are places and
restaurants flaunting the rules. She found the story in paper highly disconcerting. She said we will have a
second shut down because of some business owners not caring. She thinksthe city needs to hire and
augment enforcement. She says we should change LLA rules so council can pull liquor licenses from local
businesses. She said the chaos at Scarlett’s was over two weeks ago and we haven’t seen any
punishment.
Ms. Ott said a cease and desist order was issued to Scarlett’s and it serves as a warning and Pitkin
County did not feel it was necessary to put out media releases around this. To close them down,
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
requires a level of evidence. The cease and desist was issued last Thursday. They were also in touch with
the state on that same day, and Mr. Sandler is aware of this. She said hand sanitizer stations have been
placed throughout the core and more have been ordered. Regarding the staffing question that was
brought up, she said the ten full time contact tracers who will be consumer protection and enforcement
when they are not contact tracing. The county has already begun the hiring process for these positions.
She said last week we distributed to go stickers to all restaurants along with a fresh set of rules from the
state.
Mayor Torre said this is not enough and we shouldn’t rely on the county but need to have our own
ambassadors out there.
Councilwoman Mullins said she supports everything Rachel brought up and she likes the idea of a street
team focusing on education. Noncompliance in town is very disturbing and it is important to adhere to
our guidelines.
Councilman Hauenstein said he is outraged by the incident at Scarlet’s.
Councilwoman Richards said time is of the essence.
Jim True said we are in touch with Pitkin County on regular basis on issues that we are aware of or that
come up. Richard Pryor is working with his staff to monitor the town and we are trying our best to make
sure the required enforcement does happen.
Ms. Ott said she needs clarity on the enforcement piece and council may need to adopt their own public
health order. We have some things we need to navigate so we can understand your enforcement and
education ideas. She said maybe she can providean info only memo hopefully next week.
Mayor Torre said we’re a little behind and another week is another week lost.
Ms. Ott asked that council respect staff and not pressure us to not do our best work. 72 hours is not a
reasonable expectation.
Mayor Torre said that nerves are frayed. He is greatly impacted by hearing of new cases in the valley and
of the businesses that are complying yet being affected. He mentioned the board openings and said
interviews will be held on June 22nd. He went on to mention mental health in the valley and that there
have been a couple of losses in our community. There are resources available to people and this is a
time when person to person reach out is really needed.
CITY MANAGER COMMENTS:
Ms. Ott said Austin Weiss has been appointed the Interim Parks and Rec Director and he will assume
those duties starting on Monday. We will not be filling that vacancy in 2020. Jeff Woods is on the line
to provide a parks and rec update.
Mr. Woods said they have been working really hard on getting facilities back open. They’ve opened up
day camp, tennis, youth center and these are methods of supporting families. They’ve opened the
basketball courts, pickleball, etc. This is an evolving day to day situation. He thanked Courtney Devito
for her hard work on all of this as well and thanked the public for their patience.
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
Pete Rice updated council on the use of the right of way in town for restaurants and businesses. Mitch
has done a great job in the last week on this. We have four places ready to go tomorrow for the street
plan. Staff is ready to go and the planters are ready that Rachel requested. The restaurant row people
are on tight budgets and don’t want to spend the money to come out into the streets, so they have
decided not to close that street down. For now, we will focus on the restaurants who do want to come
out. There are 20 some restaurants so far who have reached out to move into the right of way.
Councilwoman Mullins said so far, she doesn’t support the decking or solar stations at this point.
Councilman Hauenstein said he would like to see these things, but we don’t have the money in the piggy
bank to do this for everyone. He’s open to some more funding for this, but let’s see what happens over
the next couple of weeks.
BOARD REPORTS:
Councilwoman Richards said that Club 20 had their semi-annual board meeting and she has been re-
nominated as secretary.
Mayor Torre said the Board of Health will be going to every two-week meetings now.
Councilman Mesirow said at the last APCHA meeting, they adopted the 2021-2025 strategic plan, which
included a new mission statement.
PUBLIC HEARINGS: Ordinance #06, Series of 2020 – Establishment of TDR - 920 E Hyman Avenue
Second Reading
Sarah Yoon
This is a request to establish one TDR. This is a historic single-family home in the RMF zone district. This
is an HP benefit and helps reduce added mass and scale and provides property owners the opportunity
to recoup property value lost due to development. Staff recommends that council approve the
establishment of 1 TDR.
Mayor Torre opened the public hearing.
Public hearing closed.
Councilwoman Mullins supports issuing the TDR.
Councilman Hauenstein gave some kudos to the architect on this plan. He will be supporting this.
Mayor Torre said he has struggled for years with the TDR program and landing sites.
Councilwoman Mullins motioned to approve; Councilwoman Richards seconded.
Mayor Torre said he is interested in a work session to have a further TDR discussion and will do some
info seeking prior to this meeting.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
RESOLUTION #026, SERIES OF 2020 - Lacet Subdivision – Amendment to Resolution #058, Series of 1994
Garrett Larimer
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
This was continued from April 14th, 2020. This is an eight-lot subdivision. One lot contains affordable
housing units. This is east of the Roaring Fork River off of Highway 82. This subdivision was approved in
1993. Mr. Larimer provided a walking video in the packet and asked council if they would like to watch
the video. Council did not wish to watch as they’ve done their own site visits. The original requ3est was
to treat the 25-foot buffer like a setback, limiting activities to landscaping and utilities. The alternatives
would be to keep restrictions in place or split the 25 feet into distinct buffer and setback. All other areas
outside of the building envelope are subject to the allowances as established by the Land Use Code. This
resolution has no impact on existing easements, and the pedestrian access easement remains
unobstructed and open for pedestrian access.
APPLICANT PRESENTATION: Sarah Oates
Ms. Oates heard councils concerns last time. She developed a list of things that are consistent with the
current buffer and things that are disruptive to neighbors. There would be no pools, hot tubs,
mechanical equipment, no driveways. All adjacent neighbors are in support of this. She is not trying to
misrepresent any objections.
Mayor Torre opened the public hearing.
Public hearing was closed.
Mr. Larimer mentioned both letters from Jackie Mastrangelo. She sent a letter to council and provided
additional comments expressing concerns with the proposed amendment. An additional letter was also
sent to council yesterday. He also mentioned Tim Murray’s letter on page 74 of tonight’s packet, who
also objected to the project.
Mayor Torre said he was amenable to the typical 10 ft zone in the setback.
Councilman Mesirow expressed a lot of the same concerns as Rachel last time. We don’t just change
things because people want them changed. He is willing to compromise on this, however. He will accept
this with a few more restrictions.
Councilman Hauenstein said he can see both arguments.
Councilwoman Richards said she doesn’t see us going back to relocate utility boxes.
Councilwoman Mullins said things do change and she is supportive of staff’s recommendation. She feels
that ComDev has come up with a good solution.
Councilwoman Richards suggested a modified resolution.
Phillip Supino the amount of research required to find out regulations on a site-specific development
approval like this one, is kind of mind blowing. This is in response to council’s requests over the past 9
months to not continue to miss details like this. That was the root of staff’s position on this application.
Councilwoman Richards said she appreciate this. We do have a complicated code. She empathizes but
still wants to find a way. To not zone it not like you mean it, is a hard argument. She’s leaning toward
approves staff’s recommendation.
Councilman Hauenstein said it is what it is, but hopes we see fewer of these going forward.
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
Councilwoman Mullins motioned to approve Resolution #026; Councilwoman Richards seconded.
Mayor Torre won’t be supporting this and would prefer a typical neighborhood setback standard.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, no. 4-1, motion carried.
ORDINANCE #08, SERIES OF 2020 - Comcast Franchise Agreement and Customer Service Standards
Jim True
Mr. True said this item started several years ago when the franchise agreement terminated at the end of
2017 and negotiations have been taking place ever since. We now feel this is acceptable and in the best
interests for the City of Aspen.
APPLICANT PRESENTATION: Ken Fellman and Andy Davis
Mr. Fellman said the city would not benefit by doing a shorter term. There were some FCC restriction
negotiations and it was unclear who would get the upper hand. The most recent FCC restrictions have
limited what governments can do and Aspen is a part of this. Mr. Fellman is a petitioner in this court
appeal. Mr. True pointed out that we are talking about an eight-year term to coincide with other
communities.
Mr. Davis gave an update on the latest features of Comcast and their response to COVID-19.
Mayor Torre opened the public hearing.
Public hearing is closed.
Councilwoman Richards motioned to approve Ordinance #08, Series of 2020; Councilwoman Mullins
seconded.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
Councilwoman Mullins motioned to approve Resolution #046, Series of 2020; Councilwoman Richards
seconded.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
RESOLUTION #045, SERIES OF 2020 – Extension of Temporary Use, Silver City Ice Rink, 433 E. Durant
Avenue
Amy Simon
Ms. Simon said the equipment, which is used on the ice, uses a chemical which needs to be phased out
this year. We came to council last fall for alternatives. They may decide to reprogram the space in the
future, but in the meantime, they had asked council for temporary use of a large chiller. The chiller sits
in a corner of the property. That temporary use approval was to only last until March 31
st, but due to
COVID-19, they couldn’t do the work, so they’ve asked for a 180-day extension, which is all that council
is allowed to grant. The applicant would like a longer extension.
APPLICANT PRESENTATION: Chris Bendon of Bendon Adams
Mr. Bendon said their budgeting has changed for the year and the cost for the unit for an entire year, is
less than moving it twice. They will need to use this chiller through the next winter.
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
Councilman Hauenstein said he wondered why the applicant can’t just wait and apply for a temporary
use in the fall and do it at once. Ms. Simon explained the code and why they need to extend it now.
Councilwoman Richards said it’s her goal to keep the ice for the next winter and she is in favor of
supporting the extension.
Jim True explained that it doesn’t make sense to move the chiller and bring it back in the fall because it
costs more to do that, which is why staff recommended an extension.
Councilwoman Richards moved to approve the Resolution #045; Councilwoman Mullins seconded.
Mr. Bendon asked if they could have this approved through September 31st instead and Ms. Simon said
no. Mr. Supino said they will work with him on the enforcement side of things.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0 motion carried.
Councilman Hauenstein motioned to adjourn, Mayor Torre seconded.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
______________________
Nicole Henning, City Clerk
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MEMORANDUM
TO:Mayor and City Council
FROM:Lee Ledesma, Utilities Finance & Admin Manager
Rick Magill, Landscape Ordinance Plans Reviewer
THROUGH:Tyler Christoff, Utilities Director
Scott Miller, Public Works Director
MEMO DATE:June 12, 2020
MEETING DATE:June 23, 2020
RE:Water Efficient Landscape Ordinance – First Reading --
Proposed Enhancements to Water Efficient Landscaping
Standards
REQUEST OF COUNCIL: Staff requests approval of Ordinance #09, which would adopt
enhancements to the Water Efficient Landscaping Standards. Recommended changes
include: two new exemptions to WELS review, a variance to the WELS for projects with
outdoor pools/spas and a relatively small irrigated area, and updated permit language for
triggering WELS compliance review. These amendments are outlined in Exhibits A and
B.
SUMMARY AND BACKGROUND: Staff presented WELS programmatic enhancements
and received council feedback during a May 19th, 2020 work session. The Water Efficient
Landscape Ordinance provides the Aspen community a mechanism to continuously
improve outdoor water efficiency Conservation is a key component of Aspen’s Integrated
Water Supply System, and effective conservation practices enable the City to manage
water supplies more efficiently. These proposed enhancements help the staff and the
community with the ability to continue to successfully implement this program.
Council adopted the Water Efficient Landscape Ordinance pilot program on May 22,
2017, which went in effect on June 22, 2017 and applied to all city and county parcels
served by City of Aspen water.
In August of 2018, Council approved Ordinance #17, which extended the previously
adopted pilot program of the Landscape Ordinance to 18 months, ending December 31,
2018. This pilot phase allowed the Utility to collect data on current applications, provided
additional time for community outreach, and allowed staff to work through pain-points in
the proposed process.
As of January 1, 2019, all building permit applications that trigger WELS compliance
review need to demonstrate alignment with the maximum annual irrigation water need of
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7.5 gallons/sq.ft./irrigation season and obtain a 3rd party audit from a certified landscape
irrigation auditor prior to issuance of a Certificate of Occupancy. This audit ensures
landscape and irrigation installations comply with WELS and the approved plans.
To date, there have been 85 building permits within the city and county that have triggered
compliance to WELS since 2018. These projects involved a total of 762,764 irrigated sq.
ft.The average water budgets from the 85 submittals since 2018 is 6.4
gallons/sq.ft./irrigation season, exceeding the desired reduction (of gallons per square
foot) envisioned in the Standards by nearly 15 percent. These proposed projects equate
to an estimated savings of more than 6,500,000 gallons. Additionally, there are currently
18 WELS submittals under review and in preapproval status. The table below shows the
average water budget by zoning districts.
DISCUSSION: Based on applicants’ input and reviewers’ observations of potential
inconsistencies in the ordinance and standards, staff is requesting changes summarized
in list below. It is important to note components of the requested changes are contained
in both the Municipal Code Title 25, Chapter 25.30, as well as in our currently adopted
Water Efficient Landscaping Standards. The proposed changes stem from input from
applicants, observations of City staff and Council feedback. (A full draft of amendments
can be found in Exhibits A and B):
o WELS Exemption -Staff proposes adding exemption language to WELS
document (section 2.2). This update would apply to: a) projects with less
than 250 sq. ft. of total irrigated area, including any adjoining irrigated City
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right-of-way; and, b) projects with greater than 75 percent of the total
irrigated area occurring within an adjoining City right-of-way. These
proposed changes will allow certain low-impact projects to not trigger
compliance with WELS or be required to submit a complete landscape and
irrigation documentation packet.
o WELS Variance - Staff proposes adding a variance to the WELS document
(section 2.2.5.). This update would apply to projects that are comprised of
outside pools and/or spas with a relatively small area of irrigated landscape
that currently makes it difficult, if not impossible, to meet the water budget.
Staff proposes this additional variance for applicants to ease the burden of
WELS compliance for certain non-irrigation water uses.
o WELS Revision - Staff proposes updating WELS, Section 4.3.2(l)(m)
regarding limitations of disturbance caused by development under existing
trees. Current Standards are not specific enough to mitigate potential
damage to root systems due to disturbance within existing tree driplines and
often conflict with recommendations of the City Forester. The proposed
update to the Standards will allow the City Forester to review each project
on a case-by-case basis and require a tree permit for significant disturbance
under trees.
o WELS Trigger Threshold –Staff proposes replacing the current WELS
trigger threshold of ‘greater than 50 percent internal demolition of existing
structure’ with ‘an increase of 50 percent or more in total water use capacity
on a property, as measured in Equivalent Capacity Units, (ECUs).’ Staff
recommends this update to align the trigger threshold for distinguishing
between substantial and insubstantial remodel projects as identified in Title
25, Section 25.12.070(c) of the Municipal Code. The “substantial vs.
insubstantial remodel/rebuild” trigger language is currently being utilized by
the Engineering department review teams. This recommended revision to
the second WELS compliance trigger allows for consistency between the
three water review teams across the Utilities, Engineering, and Parks
departments.
o WELS Definitions - Other relatively minor clarifications and revisions to the
WELS Definitions and Sections.
FINANCIAL IMPACTS: No direct financial impacts are anticipated as a result of the
outlined recommended changes to the Water Efficient Landscaping Standards.
ENVIRONMENTAL IMPACTS: The City of Aspen's Landscape Code revision is an
example of how local efforts tie into larger statewide efforts to reduce outdoor water use
in Colorado. Comprehensive landscape codes are key to reducing outdoor demand and
'building it smart from the start". WELS promotes the values and benefits of healthy
landscapes while recognizing the need to invest in efficiency. The adopted water budget
of 7.5 gallons/sq.ft./season is estimated to reduce irrigation water demand by 14 percent
as compared to new plan submittals sampled prior to WELS implementation. And, when
compared to typical existing homes, there is a potential landscape water use savings of
up to 60 percent when these properties update their landscaping and irrigation systems.
Using a water budget of 7.5 gallons/sq. ft./irrigation season (14 percent savings) would
put the City on target to achieve the Council-adopted 2015 City of Aspen Municipal Water
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Efficiency Plan projection of 50 acre-feet per year of water savings by 2035. Note: Link
to our Municipal Efficiency Plan can be found at: https://cityofaspen.com/203/About-
Aspen-Water.
ALTERNATIVES: City Council could choose to not proceed with adoption of Ordinance
#09 or request modifications to the proposed Water Efficient Landscaping Standards
changes prior to adoption of ordinance.
RECOMMENDATIONS: Staff recommends adoption of Ordinance #09, Series of 2020,
which modifies existing Water Efficient Landscaping Standards.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Exhibit A – Ordinance #09, Series of 2020
Exhibit B – Water Efficient Landscaping Standards – Proposed Changes
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ORDINANCE NO. 09
Series 2020
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING TITLE 25 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN--
UTILITIES1,2,3— TO UPDATE CHAPTER 25.30 ENTITLED: WATER EFFICIENT
LANDSCAPING STANDARDS.
WHEREAS, the City owns and operates a public water system; and
WHEREAS, implementation of Aspen’s water efficient landscaping standards will fulfill
certain recommendations identified in the City of Aspen’s Municipal Water Efficiency Plan, the
Roaring Fork Regional Efficiency Plan, and the Roaring Fork Watershed Plan; and
WHEREAS, water conservation and efficiency has been identified as an important
component of Aspen’s Integrated Water Supply System; and
WHEREAS, the Water Efficient Landscaping Standards, as adopted by City Council on
May 22, 2017, Ordinance #16, Series 2018, provide policies, guidelines, and minimum
landscaping design, installation, maintenance, and management criteria to governmental agencies,
design professionals, private developers, community groups, and homeowners for new
development and significant remodels; and
WHEREAS, staff has made enhancements to existing Water Efficient Landscaping
Standards based on community and staff input and requests adoption of modified Standards and
Ordinance; and,
WHEREAS, these standards promote efficient development and use of water within the
City of Aspen’s water service area; and,
WHEREAS, the City Council finds that this ordinance furthers, and is necessary for, the
promotion of the public health, safety, and welfare.
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NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN,
COLORADO:
Section 1.
That Chapter 25.30--Water Efficient Landscaping Standards--of the Municipal Code of the
City of Aspen, Colorado, is hereby amended to read as follows:
CHAPTER 25.30
WATER EFFICIENT LANDSCAPING STANDARDS
Sec. 25.30.010. - Purpose.
(a) Promote the values and benefits of healthy landscapes while recognizing the need to invest
water and other resources as efficiently as possible.
(b) Establish a structure for planning, designing, installing, maintaining, and managing water-
efficient landscapes in new construction and renovated/rehabilitated projects.
(c) Use water efficiently without waste by setting a Maximum Applied Water Budget as an
upper limit for water use and reduce water use to the lowest practical amount.
( Ord. No. 16-2017 ; Ord. No. 28-2018 )
Sec. 25.30.020. - Adoption of City of Aspen Water Efficient Landscaping Standards
Pursuant to the powers and authority conferred by the laws of the State of Colorado and the
Charter of the City of Aspen, there is hereby adopted and incorporated herein by reference as if
fully set forth the City of Aspen Water Efficient Landscaping Standards as may be amended
from time to time by City Council Ordinance. At least one (1) copy of the City of Aspen Water
Efficient Landscaping Standards shall be available for inspection at the City of Aspen Utilities
Department, the City of Aspen Parks department, and City of Aspen Community Development
Department.
( Ord. No. 16-2017; Ord. No. 28-2018 )
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Sec. 25.30.030. - Applicability.
(a) After June 22, 2017, the City of Aspen Water Efficient Landscaping standards shall apply to
the following projects that use City of Aspen potable water:
(1) Landscaping, grading, installing or disturbing hardscapes, additions to structures, etc.
that has a disturbance area greater than one thousand (1,000) square feet and greater than
twenty-five percent (25%) of the entire lot or parcel.
(2) All building permits that trigger a “substantial remodel” per Title 25 of the Municipal
Code, defined as the increase by fifty percent (50%) or more in the water using capacity
of new water using devices or fixtures installed on a property, as measured by the ECU
rating of the existing and proposed structure(s)..
(Ord. No. 18-2002 § 3 [part]; Ord. No. 17-2018 ; Ord. No. 28-2018 )
Sec. 25.30.040. - Review Authority.
Utilities Director, or designee, is authorized to make and enforce the rules and regulations
contained in the Water Efficient Landscaping Standards in order to carry out the intent of the
standards and this Chapter.
Where no specific or applicable rules, regulations, or standards appear to be set forth in the
Water Efficient Landscaping Standards, other rules, regulations, or standards, and recommended
practices, as published by professional associations, technical organizations, model code groups,
and similar entities, may be used by the City for guidance.
( Ord. No. 16-2017 ; Ord. No. 28-2018 )
Sec. 25.30.050. - Review Procedure.
(a) Review Process.The Utilities Director shall have the authority on behalf of the City of Aspen
to determine that all design and construction is completed to a level that is equal to or exceeds
the requirements set forth in this Chapter and the Water Efficient Landscaping Standards.
Sec. 25.30.060. - Variances.
(a) The City may grant variances to the Water Efficient Landscaping Standards when practical
difficulties or unnecessary hardships exist that cause inconsistencies with the purpose and
intent of the standards.
(b) Requests for variances from the standards, policies, or submittal requirements of this
document shall be submitted in writing with appropriate documentation and justification to
the City Utilities Director. Variance requests must, at a minimum, contain the following:
(1) Criteria under which the applicant seeks a variance;
(2) Justification for not complying with the standards;
(3) Proposed alternate criteria or standards to comply with the intent of the criteria;
(4) Supporting documentation, including necessary calculations;
(5) The proposed variance's potential adverse impacts for adjacent landowners; and,
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(6) An analysis of the variance request, signed by a qualified landscape professional or
qualified irrigation design professional, depending on the topic of the request.
(c) Upon receipt of a complete application for a variance, the City Utilities Director shall prepare
a statement to recommend that the variance be approved or denied or to request a modification
of the proposed variance.
( Ord. No. 16-2017 ; Ord. No. 28-2018)
Sec. 25.30.070. - Existing Compliance.
(a) The City may grant a determination of compliance for existing projects or portions of
existing properties in sufficient compliance meeting the minimum standards.
(b) Requests for determination of compliance shall be submitted in writing with appropriate
documentation and justification to the City Utilities Director. Requests for determination of
existing compliance must, at a minimum, contain the following:
(1) Landscape and Irrigation Documentation Package; and
(2) Irrigation audit report performed by a third-party certified landscape irrigation auditor.
(c) Upon receipt of a complete application for a determination of existing compliance, the City
Utilities Director shall prepare a statement to recommend that the determination be approved or
denied or to request a modification of the proposed determination.
( Ord. No. 16-2017; Ord. No. 28-2018 )
Sec. 25.30.080. - Deposit Requirements for Temporary Certificates of Occupancy.
In accordance with the Water Efficient Landscaping Standards, Section 5.8.3, The City of
Aspen shall: (a) Receive the signed Approval Letter from the project applicant; (b) Approve or
deny the Approval Letter. If the Approval Letter is denied, the City of Aspen shall provide
information to the project applicant regarding reapplication, appeal, or other assistance; (c) If a
certificate of occupancy is issued in winter months when landscaping and irrigation systems
cannot be inspected for compliance, Aspen Water Department will require a deposit equal to the
identified cost to complete the landscaping and irrigation plan. Once compliance has been
confirmed, the deposit will be returned in full.
Therefore, if a property owner, or their representative, requests a Temporary Certificate of
Occupancy prior to complete installation of the landscape and irrigation, followed by a third-
party audit, and final City of Aspen Approval Letter, the property owner will submit an estimate
to complete the remaining irrigation and landscaping work and pay a deposit as set out below
prior to issuance of the Temporary Certificate of Occupancy.
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Deposit Schedule for Landscaping and Irrigation
Project cost estimate Deposit
$0—50,000 50%
$50,000—100,000 25%
Over $100,000 15%
(Ord. No. 24-2019 , § 1, 11-26-2019)
Sec. 25.30.090. - Appeals.
(a) Initiation.An applicant aggrieved by an order, requirement, decision, or determination of
the City Utilities Director may file an appeal with the Administrative Hearing Officer,
pursuant to the procedures set out in Chapter 26.316 of this Code except to the extent set forth
herein. The notice of appeal shall be filed with the City Utilities Director within fifteen (15)
days following the date of such order, requirement, decision, or determination. The notice of
appeal shall state in detail the action appealed, the grounds for the appeal, and the relief sought.
Failure to file such a notice of appeal within the prescribed time shall constitute a waiver of
any rights under this Section to appeal any order, requirement, decision, or determination.
(b) Effect of Filing an Appeal.The filing of a notice of appeal shall stay any proceedings in
furtherance of the action appealed from unless the City Utilities Director certifies in writing
to the Administrative Hearing Officer that a stay poses an imminent peril to life or property,
in which case the appeal shall not stay further proceedings. The Administrative Hearing
Officer may review such certification and grant or deny a stay of proceedings.
(c) Timing of Appeal.The Administrative Hearing Officer shall consider the appeal within thirty
(30) days following the date of filing the notice of appeal, or as soon thereafter as is practical
under the circumstances.
(d) Action by Administrative Hearing Officer.The Administrative Hearing Officer shall review
the record of the action taken by the City Utilities Director and provide a decision to the
Applicant in writing. The Administrative Hearing Officer may reverse or affirm wholly or
partly the order, requirement, decision, or determination appealed from and shall enter such
order, as they deem appropriate under the circumstance.
( Ord. No. 16-2017 ; Ord. No. 28-2018 ; Ord. No. 24-2019 , § 1, 11-26-2019)
Editor's note—Ord. No. 24-2019 , § 1, adopted Nov. 26, 2019, added a new § 25.30.080 and in
doing so renumbered former § 25.30.080 as § 25.30.090, as set out herein.
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Section 2.
Any and all existing ordinances or parts of ordinances of the City of Aspen covering the same
matters as embraced in this Ordinance are hereby repealed and all ordinances or parts of ordinances
inconsistent with the provisions of this ordinance are hereby repealed; provided, however, that
such repeal shall not affect or prevent the prosecution or punishment of any person for any act
done or committed in violation of any ordinance hereby repealed prior to the taking effect of this
Ordinance.
Section 3.
If any section, subsection, sentence, clause, or phrase of this Ordinance is, for any reason, held to
be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the
remaining portions of this Ordinance. The City of Aspen hereby declares that it would have
adopted this Ordinance, and each section, subsection, clause or phrase thereof, irrespective of the
fact that any one or more sections, subsections, sentences, clauses and phrases thereof be declared
invalid or unconstitutional.
Section 4.
This Ordinance shall take effect thirty (30) days after passage, adoption and publication thereof as
provided by law.
Section 5.
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 ordinance repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
FIRST READING OF THIS ORDINANCE WAS INTRODUCED, READ, ORDERED AND
PUBLISHED as provided by law, by the City Council of the City of Aspen on the 23rd day of
June 2020.
Attest:
Nicole Henning, City Clerk Torre, Mayor
FINALLY, adopted, passed, and approved this 14th day of July 2020.
Attest:
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Nicole Henning, City Clerk Aspen Torre, Mayor
Approved as to form:
James R. True, City Attorney
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CHAPTER 25.30. - WATER EFFICIENT LANDSCAPING STANDARDS
Sec. 25.30.010. - Purpose.
(a) Promote the values and benefits of healthy landscapes while recognizing the need to invest water
and other resources as efficiently as possible.
(b) Establish a structure for planning, designing, installing, maintaining and managing water -efficient
landscapes in new construction and renovated/rehabilitated projects.
(c) Use water efficiently without waste by setting a Maximum Applied Water Budget as an upper limit for
water use and reduce water use to the lowest practical amount.
( Ord. No. 16-2017 ; Ord. No. 28-2018 )
Sec. 25.30.020. - Adoption of City of Aspen Water Efficient Landscaping Standards
Pursuant to the powers and authority conferred by the laws of the State of Colorado and the Charter
of the City of Aspen, there is hereby adopted and incorporated herein by reference as if fully set forth the
City of Aspen Water Efficient Landscaping Standards as may be amended from time to time by City
Council Ordinance. At least one (1) copy of the City of Aspen Water Efficient Landscaping Standards
shall be available for inspection at the City of Aspen Utilities Department, the City of Aspen Parks
department, and City of Aspen Community Development Department.
( Ord. No. 16-2017; Ord. No. 28-2018 )
Sec. 25.30.030. - Applicability.
(a) After June 22, 2017, the City of Aspen Water Efficient Landscaping standards shall apply to the
following projects that use City of Aspen potable water:
(1) Landscaping, grading, installing or disturbing hardscapes, additions to structures, etc. that has
a disturbance area greater than one thousand (1,000) square feet and greater than twenty -five
percent (25%) of the entire sitelot or parcel.
(2) All building permits that trigger a “substantial remodel” per Title 25 of the Municipal Code,
defined as the increase byAll new construction with internal work only that demolishes greater
than fifty percent (50%) or more in the water using capacity of new water using devices or
fixtures installed on a property, as measured by the ECU rating of the existing and proposed
structure(s).of the existing structure, (based on the entire square footage of rooms where floors,
ceilings, or walls are exposed over the square footage of the structure).
(Ord. No. 18-2002 § 3 [part]; Ord. No. 17-2018 ; Ord. No. 28-2018 )
Sec. 25.30.040. - Review Authority.
Utilities Director, or designee, is authorized to make and enforce the rules and regulations contained
in the Water Efficient Landscaping Standards in order to carry out the intent of the standards and this
Chapter.
Where no specific or applicable rules, regulations, or standards appear to be set forth in the Water
Efficient Landscaping Standards, other rules, regulations, or standards, and recommended practices, as
published by professional associations, technical organizations, model code groups, and similar entities,
may be used by the City for guidance.
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( Ord. No. 16-2017 ; Ord. No. 28-2018 )
Sec. 25.30.050. - Review Procedure.
(a) Review Process. The Utilities Director shall have the authority on behalf of the City of Aspen to
determine that all design and construction is completed to a level that is equal to or exceeds the
requirements set forth in this Chapter and the Water Efficient Landscaping Standards.
( Ord. No. 16-2017; Ord. No. 28-2018 )
Sec. 25.30.060. - Variances.
(a) The City may grant variances to the Water Efficient Landscaping Standards when practical
difficulties or unnecessary hardships exist that cause inconsistencies with the purpose and intent of
the standards.
(b) Requests for variances from the standards, policies, or submittal requirements of this document
shall be submitted in writing with appropriate documentation and justification to the City Utilities
Director. Variance requests must, at a minimum, contain the following:
(1) Criteria under which the applicant seeks a variance;
(2) Justification for not complying with the standards;
(3) Proposed alternate criteria or standards to comply with the intent of the criteria;
(4) Supporting documentation, including necessary calculations;
(5) The proposed variance's potential adverse impacts for adjacent landowners; and,
(6) An analysis of the variance request, signed by a qualified landscape professional or qualified
irrigation design professional, depending on the topic of the request.
(c) Upon receipt of a complete application for a variance, the City Utilities Director shall prepare a
statement to recommend that the variance be approved or denied or to request a modification of the
proposed variance.
( Ord. No. 16-2017 ; Ord. No. 28-2018)
Sec. 25.30.070. - Existing Compliance.
(a) The City may grant a determination of compliance for existing projects or portions of existing
properties in sufficient compliance meeting the minimum standards.
(b) Requests for determination of compliance shall be submitted in writing with appropr iate
documentation and justification to the City Utilities Director. Requests for determination of existing
compliance must, at a minimum, contain the following:
(1) Landscape and Irrigation Documentation Package; and
(2) Irrigation audit report performed by a third third-party certified landscape irrigation auditor.
(c) Upon receipt of a complete application for a determination of existing compliance, the City Utilities
Director shall prepare a statement to recommend that the determination be approve d or denied or to
request a modification of the proposed determination.
( Ord. No. 16-2017; Ord. No. 28-2018 )
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Sec. 25.30.080. - Deposit Requirements for Temporary Certificates of Occupancy.
In accordance with the Water Efficient Landscaping Standards, Section 5.8.3, The City of Aspen
shall: (a) Receive the signed Approval Letter from the project applicant; (b) Approve or deny the Approval
Letter. If the Approval Letter is denied, the City of Aspen shall provide information to the project applicant
regarding reapplication, appeal, or other assistance; (c) If a certificate of occupancy is issued in winter
months when landscaping and irrigation systems cannot be inspected for compliance, Aspen Water
Department will require a deposit equal to the identified cost to complete the landscaping and irrigation
plan. Once compliance has been confirmed, the deposit will be returned in full.
Therefore, if a property owner, or their representative, requests a Temporary Certificate of
Occupancy prior to complete installation of the landscape and irrigation, followed by a 3 rd third-party
audit, and final City of Aspen Approval Letter, the property owner will submit an estimate to complete the
remaining irrigation and landscaping work and pay a deposit as set out below prior to issuance of the
Temporary Certificate of Occupancy.
Deposit Schedule for Landscaping and Irrigation
Project cost estimate Deposit
$0—50,000 50%
$50,000—100,000 25%
Over $100,000 15%
(Ord. No. 24-2019 , § 1, 11-26-2019)
Sec. 25.30.090. - Appeals.
(a) Initiation. An applicant aggrieved by an order, requirement, decision, or determination of the City
Utilities Director may file an appeal with the Administrative Hearing Officer, pursuant to the
procedures set out in Chapter 26.316 of this Code except to the extent set forth herein. The notice of
appeal shall be filed with the City Utilities Director within fifteen (15) days following the date of such
order, requirement, decision, or determination. The notice of appeal shall state in detail the action
appealed, the grounds for the appeal, and the relief sought. Failure to file such a notice of appeal
within the prescribed time shall constitute a waiver of any rights under this Section to appeal any
order, requirement, decision, or determination.
(b) Effect of Filing an Appeal. The filing of a notice of appeal shall stay any proceedings in furtherance
of the action appealed from unless the City Utilities Director certifies in writin g to the Administrative
Hearing Officer that a stay poses an imminent peril to life or property, in which case the appeal shall
not stay further proceedings. The Administrative Hearing Officer may review such certification and
grant or deny a stay of proceedings.
(c) Timing of Appeal. The Administrative Hearing Officer shall consider the appeal within thirty (30)
days following the date of filing the notice of appeal, or as soon thereafter as is practical under the
circumstances.
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(d) Action by Administrative Hearing Officer. The Administrative Hearing Officer shall review the record
of the action taken by the City Utilities Director, and provide a decision to the Applicant in writing.
The Administrative Hearing Officer may reverse or affirm wholly or par tly the order, requirement,
decision or determination appealed from and shall enter such order, as they deem appropriate under
the circumstance.
( Ord. No. 16-2017 ; Ord. No. 28-2018 ; Ord. No. 24-2019 , § 1, 11-26-2019)
Editor's note— Ord. No. 24-2019 , § 1, adopted Nov. 26, 2019, added a new § 25.30.080 and in
doing so renumbered former § 25.30.080 as § 25.30.090, as set out herein.
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MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Phillip Supino, Community Development Director
MEMO DATE:June 18, 2020
MEETING DATE:June 23, 2020
RE:CONTINUATION -Minor Subdivision - Lot Split –949 West
Smuggler Street, Ordinance No. 002, Series of 2020.
APPLICANT:949 West Smuggler Street,
LLC
REPRESENTATIVE:Chris Bendon,
BendonAdams, LLC
LOCATION:949 West Smuggler Street
CURRENT ZONING:Split Zoning;
Residential - 6 (R-6) on eastern portion
of the lot and Residential – 30 (R-30) on
the western portion of the lot.
SUMMARY OF REQUEST: The Applicant
requests Minor Subdivision – Lot Split
approval to subdivide the subject
property into Lot 1 and Lot 2. No
development is proposed at this time
and Lot Split approval is only
requested. Power Plant Road
traverses the subject property and its
ownership is unclear. The Applicant
proposes to dedicate a Power Plant
Road right of way (ROW) to the City
during this subdivision process.
STAFF RECOMMENDATION:In order to provide staff
time to respond to changes to the applicant’s
request, staff recommends City Council continue
the public hearing to July 14, 2020.
Figure 1. Aerial photo of subject property
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Page 2 of 2
REQUEST OF CITY COUNCIL:The Applicant requests a Minor Subdivision - Lot Split review
pursuant to draft Ordinance 002, Series of 2020 to create two (2) separate and distinct
parcels. This request will be reviewed in accordance with Land Use Code Section
26.480.060.A and Land Use Code Section 26.480.040. First and Second Reading is
required of this request. City Council is the final review authority.
STAFF RECOMMENDATION:
Staff recommends Council continue the public hearing of Ordinance No. 2, Series of 2020
to July 14, 2020, to prevent expiration of the public notice and allow for Council action at
a future meeting.
PROPOSED MOTION (WORDED IN THE AFFIRMATIVE):“I move to continue consideration of
Ordinance No. 2, Series of 2020 granting Minor Subdivision – Lot Split approval to July
14, 2020.”
Attachments:
None.
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MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Ben Anderson, Principal Long-Range Planner
Community Development
THROUGH:Phillip Supino, Community Development Director
MEMO DATE:June 17, 2020
MEETING DATE:June 23, 2020
RE:Resolution # 052, Series of 2020
REQUEST OF COUNCIL:Community Development staff requests City Council consider
Resolution # 052, Series of 2020. This resolution, as recommended, would provide staff
with Council direction in the application and enforcement of Land Use Code regulations
that intersect with several of the strategies being used in the economic recovery efforts
related to the COVID-19 public health crisis.
SUMMARY AND BACKGROUND: As businesses and organizations re-open and
respond to Colorado and Pitkin County public health orders, social distancing
requirements are difficult to comply with if limited to existing indoor and outdoor spaces.
The City is working to provide additional space in the right-of-way and flexibility in
regulations to encourage and support our businesses and organizations in their re-
opening.
While the Community Development Department fully supports these efforts, the Land Use
Code (LUC) contains multiple provisions that if strictly applied and enforced, will impede
these efforts and add costs to our businesses and organizations. Under normal
circumstances, these regulations protect important community values around aesthetics,
disruptive temporary uses, and how commerce happens in our downtown. The passage
of Resolution # 033, Series 2020 provided clear policy direction regarding Council’s desire
to modify enforcement of certain City regulations of business activities.
The proposed Resolution # 052 is a response to that direction. The resolution would
provide Community Development staff with direction with regards to the application and
enforcement of applicable LUC provisions for a temporary period through October 12,
2020. This date corresponds with the proposed duration of the opening of the public right-
of-way for use by downtown businesses. The proposed resolution will support Council’s
policy direction memorialized in Resolution # 033, Series 2020.
DISCUSSION: This Resolution is a response to a recognition by Community
Development staff that the essential efforts toward economic recovery intersect with
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Staff Memo – Resolution # 052
Page 2 of 2
multiple provisions in the Land Use Code. Staff applauds the creative solutions being
implemented in response to COVID-19 and identified how these efforts may conflict with
long-established regulations in our commercial zones. It does not seem appropriate to
simply ignore established regulations. Staff seeks Council direction to consider the larger
context of our current crisis and work towards reasonable, pragmatic solutions with
respect to the short-term enforcement of certain Land Use Code provisions.
Here are the primary areas of regulation that would be included in this direction:
Temporary signage and sandwich boards
Outdoor vending and merchandising
Lighting
Temporary Uses, including Growth Management requirements for uses that go
beyond 14 days
Commercial Design Review requirements related to temporary structures,
materials, and use of Pedestrian Amenity areas
Multiple sections of the Land Use Code related to decking, tenting, canopies,
umbrellas, and similar structures. Discretion on this topic would apply to these
types of uses on both public right-of-way and commercial and organizational
uses on private property.
The proposed resolution will provide Community Development staff the direction from
Council needed to work with individual businesses and property owners to develop
creative solutions to their business needs. While staff believes flexibility is the operating
idea in this situation, one thing will not be compromised. As always, public health, safety
and welfare is the priority. No required reviews or inspections related to work that would
initiate a building or tent permit will be waived.
FINANCIAL IMPACTS: Temporary Use of tent structures beyond 14 days typically
requires Council review and affordable housing mitigation. Staff is proposing that
between now and October 12th, tents (both in the right-of-way and on private property)
are exempt from any required AH mitigation (and review by Council). For Council’s
information, the mitigation for these tents required by code is relatively minimal and was
implemented along with the review process as a disincentive for the use of tents rather
than as an important source of mitigation revenue.
ENVIRONMENTAL IMPACTS: N/A
ALTERNATIVES:Council may choose not to approve Resolution # 052, Series 2020, in
which case, staff will continue to enforce relevant provisions of the Land Use Code in the
context of increased outdoor businesses activity. This may impact the implementation of
Council’s COVID response goals outlined in Resolution # 052, Series 2020.
RECOMMENDATIONS:Staff recommends approval of Resolution # 052, Series of 2020.
CITY MANAGER COMMENTS:
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Resolution # 052, Series 2020
Page 1 of 2
RESOLUTION # 052,
(SERIES OF 2020)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL PROVIDING
DIRECTION ON ENFORCEMENT OF SPECIFIC LAND USE CODE
REGULATIONS RELATED TO ECONOMIC RECOVERY FROM THE
COVID-19 PUBLIC HEALTH CRISIS.
WHEREAS,pursuant to multiple chapters of Title 26 (Land Use Code) of the City
of Aspen Municipal Code, The Community Development Department is given
responsibility to regulate and enforce a broad range of development outcomes; and,
WHEREAS,City Council in Resolution # 033, Series of 2020; established six
outcome statements and related objectives for the City of Aspen COVID-19 relief efforts;
and,
WHEREAS,Outcome #4 as stated in Resolution # 033, Series of 2020, provided the
following direction to Council and City staff response efforts: “Proactively and swiftly work
to minimize further economic disruption and actively encourage its recovery.”; and,
WHEREAS,at a City Council Work Session on June 1, 2020, City Council
provided direction to staff to begin work that would allow downtown businesses to utilize
City right-of-way and other strategies to allow for compliance with social distancing and
other requirements of Colorado State and Pitkin County Heath Orders; and,
WHEREAS, City of Aspen Community Development Department staff request
direction from Council on enforcement of regulation in the Land Use Code that may impact
economic recovery efforts, including, but not limited to the use of the public right-of-way
for business activity; and,
WHEREAS, this Resolution does not amend the Land Use Code, but provides
direction to staff regarding enforcement ofvarious regulations within the Land Use Codethat
may impact economic recovery efforts; 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:
In order to assist local businesses with meeting minimum social distancing requirements
as well as general health concerns related to COVID-19, Community Development staff
is granted the ability to apply discretion with regards to application and enforcement of
the following regulations within the Land Use Code:
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Resolution # 052, Series 2020
Page 2 of 2
Temporary signage and sandwich boards.
Outdoor vending and merchandising
Lighting
Temporary Uses, including Growth Management requirements for uses that go
beyond 14 days
Commercial Design Review requirements related to temporary structures,
materials, and use of Pedestrian Amenity areas
Multiple sections of the Land Use Code related to decking, tenting, canopies,
umbrellas, and similar structures. Discretion on this topic would apply to these
types of uses on both public right-of-way and commercial and organizational uses
on private property.
Section 2:
Requirements related to any necessary building or tent permits are not waived by this
Resolution. In all cases, health, public safety, and welfare remain the priority and necessary
reviews and inspections to ensure these outcomes will continue.
Section 3:
Unless otherwise extended, the direction provided by this resolution remains in effect through
October 12, 2020.
Section 4:
This resolution shall not affect anyexisting 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 5:
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 23rd day of June, 2020.
_______________________________
Torre, Mayor
ATTEST:APPROVED AS TO FORM:
_____________________________________________________________
Nicole Henning, City Clerk James R True, City Attorney
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