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HomeMy WebLinkAboutagenda.council.regular.202112141 AGENDA CITY COUNCIL REGULAR MEETING December 14, 2021 5:00 PM, City Council Chambers 130 S Galena Street, Aspen WEBEX www.webex.com Enter Meeting Number: 2558 193 6641 Password: 81611 Click “Join Meeting” OR Join by phone Call: 1-720-650-7664 Meeting number (access code): 2558 193 6641 I.CALL TO ORDER II.ROLL CALL III.SCHEDULED PUBLIC APPEARANCES IV.CITIZENS COMMENTS & PETITIONS (Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please limit your comments to 3 minutes) V.SPECIAL ORDERS OF THE DAY a) Councilmembers' and Mayor's Comments b) Agenda 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 #114, Series 2021 - Maroon Creek Bridge Epoxy Overlay Contract VI.B.Resolution #125, Series of 2021 - Parks Department Fleet Replacement Contract Potestio Brothers Equipment 1 2 VI.C.Resolution #126 of 2021 - Contract Amendment to Add Transportation Impact Analysis Services to Lumberyard Design Team Contract with Cushing Terrell VI.D.Resolution #127, Series of 2021 - ACRA Visitor Services Extension for 2022 VI.E.Resolution #128, Series of 2021 - Sandy's Office Supply Contract VII.NOTICE OF CALL-UP VIII.FIRST READING OF ORDINANCES IX.PUBLIC HEARINGS IX.A.Ordinance #24, Series of 2021 - Second Reading - Revised Calculation for Affordable Housing Mitigation for Single-Family and Duplex Residential Development IX.B.Ordinance #26, Series of 2021 - Short-term Rental Regulations X.ACTION ITEMS XI.ADJOURNMENT 2 MEMORANDUM TO:Mayor and City Council FROM:Brian Long, Trail System Manager THROUGH:Matt Kuhn, Parks and Open Space Director MEETING DATE:December 14, 2021 RE:Resolution #114 Series 2021 - Contract for epoxy overlay of the Maroon Creek Bridge of the ABC Trail REQUEST OF COUNCIL: The Parks and Open Space Department is seeking Council approval of a contract with G.A. Western Construction Company for epoxy overlay of the Maroon Creek Bridge of the ABC Trail. SUMMARY / BACKGROUND: The current Highway 82 Maroon Creek Bridge is divided on the north to allow for the ABC Trail over the Maroon Creek gorge. The bridge was constructed in 2007, and upon completion of the bridge by the State, the City took ownership and maintenance responsibilities for the multi-use trail portion of the bridge. In 2016 a bridge inspection noticed the development of some small “map cracking” on the concrete surface of the trail portion of the bridge. These cracks have been monitored and have grown over time to be a concern. The prescribed treatment for this issue is an epoxy overlay, sealing the cracks and coating the bridge in a new layer with additives for traction. DISCUSSION: Staff have engaged in several meetings with local construction advisors, engineers, and bridge experts over the summer to discuss strategies to address the developing cracks. It has been determined that the best approach is to coat the entire multi-use trail portion of the bridge with an epoxy seal. A similar approach was utilized during the widening of the Castle Creek bridge for the Hallam St pedestrian project in 2018. To date, the approach has shown good results and the anti-slip additive has the bonus of improving the traction on the bridge during melt-freeze and snow weather events. Staff have been informed that epoxy specific to this project has had supply chain delays and therefore the approach to utilizing a local bridge construction company to source and procure the epoxy has been employed. G.A. Western is the sole experienced contractor for performing epoxy bridge overlays in western Colorado, and is able to procure the epoxy needed for this project. 3 FINANCIAL/BUDGET IMPACTS: The contract for the sealing of this bridge is included in the 2021 Parks Fund (100) Capital Project Budget, as project 51350 Concrete Bridge Sealing. The contract amount of $75,642 for the epoxy overlay which exceeds the current annual appropriations for 2021 of $75,000. Additionally, traffic control, engineering, and project management will have to be sourced for this project. Staff will work on finalizing the additional components for this project in the coming months, and to fund these additional costs we will either utilize departmental savings or place a request for supplemental funding in the spring cycle. ENVIRONMENTAL IMPACTS: Sealing this trail bridge deck will prevent loss of infrastructure and continue to encourage alternative transportation. ALTERNATIVES Council can request an alternative search for other constructors in this field. STAFF RECOMMENDATIONS: Parks and Open Space Staff recommends approval of the contract with G.A. Western Construction Company for epoxy overlay of the Maroon Creek Bridge of ABC Trail. CITY MANAGER COMMENTS: 4 RESOLUTION #114 (Series of 2021) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND G.A. WESTERN CONSTRUCTION COMPANY 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 epoxy overlay of the Maroon Creek bridge of the ABC Trail, between the City of Aspen and G.A. Western Construction Company, 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 epoxy overlay of the Maroon Creek bridge of the ABC Trail, between the City of Aspen and G.A. Western Construction Company, 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 14th day of December 2021. 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, December 14, 2021. Nicole Henning, City Clerk 5 ________________________________________________________________________ CC5-971.doc Page: 1 CONTRACT FOR CONSTRUCTION (Short Form) THIS CONTRACT, made and entered into on the 1st day of December, 2021, by and between the CITY OF ASPEN, Colorado, hereinafter called the “City”, and ___G.A. Western Construction Company____, hereinafter called the “Contractor”. THEREFORE, in consideration of the mutual covenants and Contracts herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Construction of Project. Contractor agrees to furnish all labor, materials, tools, machinery, equipment, temporary utilities, transportation and any other facilities needed therefor, and to complete in a good, workmanlike and substantial manner the Project as described in the Scope of Work and/or Proposal appended hereto as Exhibit “A” which is incorporated herein as if fully set forth (the “Project”). 2. Plans and Specifications; Compliance with Laws. The Project is to be constructed and completed in strict conformance with the Scope of Work and/or Proposal appended hereto for the same approved in writing by the parties hereto. The Project shall also be constructed and completed in strict compliance with all laws, ordinances, rules, regulations of all applicable governmental authorities, and the City of Aspen Procurement Code, Title 4 of the Municipal Code, including the approval requirements of Section 4- 08-040. Contractor shall apply for and obtain all required permits and licenses and shall pay all fees therefor and all other fees required by such governmental authorities. 3. Payments to Contractor. In consideration of the covenants and Contracts herein contained being performed and kept by Contractor, including the supplying of all labor, materials and services required by this Contract, and the construction and completion of the Project, City agrees to pay Contractor a sum not to exceed Seventy- Five Thousand Six Hundred Forty-Two ($75,642.00) DOLLARS or as shown on Exhibit “A”. 4. Commencement and Completion. Contractor agrees to commence work hereunder immediately upon execution hereof, to prosecute said work thereafter diligently and continuously to completion, and in any and all events to substantially complete the same not later than September 20, 2022, subject to such delays as are permissible under the “Extension of Time for Completion” section of this Contract. DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 6 ________________________________________________________________________ CC5-971.doc Page: 2 5. Payment of Bills and Charges. Contractor shall pay promptly all valid bills and charges for material, labor, machinery, equipment or any other service or facility used in connection with or arising out of the Project, and shall obtain periodic releases from all subcontractors and material suppliers supplying labor or materials to the Project concurrently with Contractor's delivering any payment to such subcontractors and material suppliers. Contractor shall indemnify and hold City and City's officers, employees, agents, successors and assigns free and harmless against all expenses and liability suffered or incurred in connection with the claims of any such subcontractors or material suppliers, including but not limited to court costs and attorney's fees resulting or arising therefrom; provided that Contractor shall be excused from this obligation to the extent that City is in arrears in making the payments to Contractor. Should any liens or claims of lien be filed of record against the Property, or should Contractor receive notice of any unpaid bill or charge in connection with construction of the Project, Contractor shall immediately either pay and discharge the same and cause the same to be released of record, or shall furnish City with the proper indemnity either by title policy or by corporate surety bond in the amount of 150% of the amount claimed pursuant to such lien. 6. Releases. Contractor shall, if requested by City, before being entitled to receive any payment due, furnish to City all releases obtained from subcontractors and material suppliers and copies of all bills paid to such date, properly receipted and identified, covering work done and the materials furnished to the Project and showing an expenditure of an amount not less than the total of all previous payments made hereunder by City to Contractor. 7. Hierarchy of Project Documents. This Contract and the Proposal or Scope of Work appended hereto as Exhibit “A” are intended to supplement one another. In case of conflict, however, this Contract shall control both. 8. Changes in the Work. Should the City at any time during the progress of the work request any modifications, alterations or deviations in, additions to, or omissions from this Contract or the Proposal/Scope of Work, it shall be at liberty to do so, and the same shall in no way affect or make void this Contract; but the amount thereof shall be amortized over the remaining term of this Contract and added to or deducted, as the case may be, from the payments set forth in Paragraph 3 above by a fair and reasonable valuation, based upon the actual cost of labor and materials. This Contract shall be deemed to be completed when the work is finished in accordance with the original Proposal or Scope of Work as amended or modified by such changes, whatever may be the nature or the extent thereof. The rule of practice to be observed in fulfillment of this paragraph shall be that, upon the demand of either City or Contractor, the character and valuation of any or all changes, omissions or extra work shall be agreed upon and fixed in writing, signed by City and Contractor, prior to performance. 9. Contractor's Failure to Perform. Should Contractor, at any time during the progress of the work, refuse or fail to supply sufficient material or workmen for the expeditious progress of said work or fail to perform any other provisions of this Contract, City may, upon giving notice in writing to Contractor as provided herein and upon DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 7 ________________________________________________________________________ CC5-971.doc Page: 3 Contractor's failure to remedy any such failure within 3 days from receipt of such notice, terminate this Contract and provide the necessary material and workmen to finish the work and may enter upon the Property for such purpose and complete said work. The expense thereof shall be deducted from the payments remaining under Paragraph 3 above, or if the total cost of the work to City exceeds the amount of such remaining payments, Contractor shall pay to City upon demand the amount of such excess in addition to any and all other damages to which City may be entitled. In the event of such termination, City may take possession of all materials, equipment and appliances belonging to Contractor upon or adjacent to the Property upon which said work is being performed and may use the same in the completion of said work. Such termination shall not prejudice or be exclusive of any other legal rights which City may have against Contractor. 10. Extension of Time for Completion. Time is of the essence of this Contract and Contractor shall substantially complete the work during the time provided for herein. However, the time during which Contractor is delayed in said work by (a) the acts of City or its agents or employees or those claiming under Contract with or permission from City, or (b) the acts of God which Contractor could not have reasonably foreseen and provided against, or (c) unanticipated stormy or inclement weather which necessarily delays the work, or (d) any strikes, boycotts or obstructive actions by employees or labor organizations and which are beyond the control of Contractor and which it cannot reasonably overcome, or (e) the failure of City to make progress payments promptly, shall be added to the time for completion of the work by a fair and reasonable allowance. Contractor recognizes, however, that the site of the work is in the Rocky Mountains at a high elevation where inclement whether conditions are common. This fact has been considered by Contractor in preparing its Proposal and or agreeing to the Scope of Work. Furthermore, Contractor shall have the right to stop work if any payment, including payment for extra work, is not made to Contractor as provided in this Contract. In the event of such nonpayment, Contractor may keep the job idle until all payments then due are received. 11. Unforeseen Conditions. It is understood and agreed that Contractor, before incurring any other expenses or purchasing any other materials for the Project, shall proceed to inspect the work site and all visible conditions and that if, at the time of inspection therefor, the Contractor finds that the proposed work is at variance with the conditions indicated by the Proposal, Scope of Work, or information supplied by City, or should Contractor encounter physical conditions below the surface of the ground of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract or inherent in a work site located in the Rocky Mountains, Contractor shall so notify City, and City shall at that time have the right and option to immediately cancel and terminate this Contract or to instruct Contractor to continue the work and add the additional amount attributable to such unforeseen conditions to the payments due Contractor as set forth above. It is agreed that in the event of any cancellation by City in accordance with this section, Contractor shall be paid the actual costs of the work done prior to the time of cancellation. In computing such costs, building permit fees, insurance and such financing DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 8 ________________________________________________________________________ CC5-971.doc Page: 4 and title charges as are not refundable shall be included; provided that supervision time, office overhead and profit shall not be included in such costs to be refunded to Contractor by reason of such cancellation. 12. Acceptance by City. No payment hereunder nor occupancy of said improvements or any part thereof shall be construed as an acceptance of any work done up to the time of such payment or occupancy, but the entire work is to be subject to the inspection and approval of City at the time when Contractor notifies City that the Project has been completed. 13. Notice of Completion; Contractor's Release. City agrees to sign and file of record within five (5) days after the substantial completion and acceptance of the Project a Notice of Completion. If City fails to so record the Notice of Completion within said five (5) day period, City hereby appoints Contractor as City's agent to sign and record such Notice of Completion on City's behalf. This agency is irrevocable and is an agency coupled with an interest. Contractor agrees upon receipt of final payment to release the Project and property from any and all claims that may have accrued against the same by reason of said construction. If Contractor faithfully performs the obligations of this Contract on its part to be performed, it shall have the right to refuse to permit occupancy of any structures by City or City's assignees or agents until the Notice of Completion has been recorded and Contractor has received the payment, if any, due hereunder at completion of construction, less such amounts as may be retained pursuant to mutual Contract of City and Contractor under the provisions of Paragraph 3 above. 14. 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. DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 9 ________________________________________________________________________ CC5-971.doc Page: 5 15. Insurance. a. The Contractor 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 Contractor pursuant to the terms of this Contract. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to the terms of this Contract by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. b. Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions do not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and maintained with forms and insurance acceptable to City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 1. Worker's 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 Worker's Compensation requirements of this paragraph. 2. Commercial General Liability insurance with minimum combined single limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and THREE MILLION DOLLARS ($3,000,000.00) 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 include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. 3. 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 Contractor's owned, hired and non-owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision. If the Contractor has no DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 10 ________________________________________________________________________ CC5-971.doc Page: 6 owned automobiles, the requirements of this Section shall be met by each employee of the Contractor providing services to the City under this contract. c. Except for any Contractor Liability insurance that may be required, the policy or policies required above shall be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or employees, or carried by or provided through any insurance pool of the City of Aspen, shall be excess and not contributory insurance to that provided by Contractor. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above. d. The certificate of insurance provided to the City of Aspen shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City of Aspen 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 coverage 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 of Aspen. e. In addition, these Certificates of Insurance shall contain the following clauses: Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above-described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor. The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done." DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 11 ________________________________________________________________________ CC5-971.doc Page: 7 Certificates of Insurance for all renewal policies shall be delivered to the Architect at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Contract or thereafter. e. Failure on the part of the Contractor to procure or maintain policies providing the required coverage, 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. All moneys so paid by City shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums against moneys due to Contractor from City. f. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 16. Damage or Destruction. If the Project is destroyed or damaged by any accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft or vandalism, any work done by Contractor in rebuilding or restoring the work shall be paid for by City as extra work under Paragraph 8 above. If, however, the estimated cost of replacement of the work already completed by Contractor exceeds twenty (20%) percent of the insured sum set forth in Paragraph 14 above, City shall have the option to cancel this Contract and, in such event, Contractor shall be paid the reasonable cost, including net profit to Contractor in the amount of ten (10%) percent, of all work performed by Contractor before such cancellation. 17. Notices. Any notice which any party is required or may desire to give to any other party shall be in writing and may be personally delivered or given or made by United States mail addressed as follows: To City: City of Aspen Parks Department Brian Long 427 Rio Grande Place Aspen, Colorado 81611 To Contractor: G.A. Western Construction Company c/o Joe Kelly 3354 C Road Palisade, CO 81626 DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 12 ________________________________________________________________________ CC5-971.doc Page: 8 subject to the right of either party to designate a different address for itself by notice similarly given. Any notice so given, delivered or made by United States mail, shall be deemed to have been given the same day as transmitted by telecopier or delivered personally, one day after consignment to overnight courier service such as Federal Express, or two days after the deposit in the United States mail as registered or certified matter, addressed as above provided, with postage thereon fully prepaid. 18. Inspections; Warranties. (a) Contractor shall conduct an inspection of the Project prior to final acceptance of the work with City. (b) Contractor shall schedule and cause to be performed all corrective activities necessitated as a result of any deficiencies noted on the final inspection prior to acceptance. The costs of material and/or labor incurred in connection with such corrective activities shall not be reimbursed or otherwise paid to Contractor. (c) Contractor shall obtain, at City's expense, third party warranty contracts (to be entered into by City). 19. Licensure of Contractor. Contractor hereby represents and warrants to City that Contractor is duly licensed as a general contractor in the State of Colorado, and if applicable, in the County of Pitkin. 20. Independent Contractor. It is expressly acknowledged and understood by the parties that nothing in this Contract shall result in, or be construed as establishing an employment relationship. The Contractor shall be, and shall perform as, an independent the Contractor who agrees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the employee, agent or servant of the City. The City is interested only in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole control of the Contractor. None of the benefits provided by the City to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available from the City to the employees, agents or servants of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the performance of the Contract. THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT. 21. Assignment. This Contract is for the personal services of Contractor. Contractor shall not transfer or assign this Contract or its rights and responsibilities under DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 13 ________________________________________________________________________ CC5-971.doc Page: 9 this Contract nor subcontract to others its rights and responsibilities under this Contract, and any attempt to do so shall be void and constitute a material breach of this Contract. 22. Successors and Assigns. Subject to paragraph 22, above, this Contract shall be binding on, and shall inure to the benefit of, City and Contractor and their respective successors and assigns. 23. Entire Contract. This Contract contains the entire Contract between City and Contractor respecting the matters set forth herein and supersedes all prior Contracts between City and Contractor respecting such matters. 24. Waivers. No waiver by City or Contractor of any default by the other or of any event, circumstance or condition permitting either to terminate this Contract shall constitute a waiver of any other default or other such event, circumstance or condition, whether of the same or of any other nature or type and whether preceding, concurrent or succeeding; and no failure or delay by either City or Contractor to exercise any right arising by reason of any default by the other shall prevent the exercise of such right while the defaulting party continues in default, and no waiver of any default shall operate as a waiver of any other default or as a modification of this Contract. 25. Remedies Non-Exclusive. No remedy conferred on either party to this Contract shall be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy. 26. Governing Law. This Contract shall be governed by, and construed in accordance with, the laws of the State of Colorado. Venue for any action at law or equity shall be Pitkin County. 27. Attorneys' Fees. If either party to this Contract shall institute any action or proceeding to enforce any right, remedy or provision contained in this Contract, the prevailing party in such action shall be entitled to receive its attorneys' fees in connection with such action from the non-prevailing party. 28. Severability. Any provision in this Contract which is held to be inoperative, unenforceable or invalid shall be inoperative, unenforceable or invalid without affecting the remaining provisions, and to this end the provisions of this Contract are declared to be severable. 29. Nondiscrimination. During the performance of this Contract, the Contractor agrees as follows: The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, marital status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or Vietnam era veteran. The Contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, sex, age, sexual orientation, handicapped, a disadvantaged person, or a disabled or Vietnam era veteran. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 14 ________________________________________________________________________ CC5-971.doc Page: 10 or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 30. Prohibited Interest. No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass Village shall have any interest, direct or indirect, in this Contract or the proceeds thereof. 31. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest: a. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon a Contract or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. b. The Contractor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Contract or to any solicitation or proposal therefor. c. It shall be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or on behalf of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person associated therewith, as an inducement for the award of a Subcontract or order. The Contractor is prohibited from inducing, by any means, any person employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regulations. 32. Payments Subject to Annual Appropriations. If the contract awarded extends beyond the calendar year, nothing herein shall be construed as an obligation by the City beyond any amounts that may be, from time to time, appropriated by the City on an annual basis. It is understood that payment under any contract is conditional upon annual appropriation of funds by said governing body and that before providing services, the Contractor, if it so requests, will be advised as to the status of funds appropriated for services or materials and shall not be obligated to provide services or materials for which funds have not been appropriate. 33. Worker Without Authorization – CRS §8-17.5-101 & §24-76.5-101. Purpose. During the 2021 Colorado legislative session, the legislature passed House Bill 21-1075 that amended current CRS §8-17.5-102 (1), (2)(a), (2)(b) introductory portion, DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 15 ________________________________________________________________________ CC5-971.doc Page: 11 and (2)(b)(III) as it relates to the employment of and contracting with a “worker without authorization” which is defined as an individual who is unable to provide evidence that the individual is authorized by the federal government to work in the United States. As amended, the current law prohibits all state agencies and political subdivisions, including the Owner, from knowingly hiring a worker without authorization to perform work under a contract, or to knowingly contract with a Consultant who knowingly hires with a worker without authorization to perform work under the contract. The law also requires 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. Definitions. The following terms are defined by this reference are incorporated herein and in any contract for services entered into with the Owner. .1 "E-verify program" means the electronic employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is jointly administered by the United States Department of Homeland Security and the social security Administration, or its successor program. .2 "Department program" means the employment verification program established pursuant to Section 8-17.5-102(5)(c). .3 "Public Contract for Services" means this Agreement. .4 "Services" means the furnishing of labor, time, or effort by a Consultant or a subconsultant not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. .5 “Worker without authorization” means an individual who is unable to provide evidence that the individual is authorized by the federal government to work in the United States By signing this document, Consultant certifies and represents that at this time: 1. Consultant shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and 2. Consultant has participated or attempted to participate in either the e-verify program or the department program in order to verify that new employees are not workers without authorization. Consultant hereby confirms that: 1. Consultant shall not knowingly employ or contract with a worker without authorization to perform work under the Public Contract for Services. DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 16 ________________________________________________________________________ CC5-971.doc Page: 12 2. Consultant shall not enter into a contract with a subconsultant that fails to certify to the Consultant that the subconsultant shall not knowingly employ or contract with a worker without authorization to perform work under the Public Contract for Services. 3. Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the e-verify program or the department program. 4. Consultant shall not use the either the e-verify program or the department program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. If Consultant obtains actual knowledge that a subconsultant performing work under the Public Contract for Services knowingly employs or contracts with a worker without authorization, Consultant shall: 1. Notify such subconsultant and the Owner within three days that Consultant has actual knowledge that the subconsultant is employing or subcontracting with a worker without authorization: and 2. Terminate the subcontract with the subconsultant if within three days of receiving the notice required pursuant to this section the subconsultant does not stop employing or contracting with the worker without authorization; except that Consultant shall not terminate the Public Contract for Services with the subconsultant if during such three days the subconsultant provides information to establish that the subconsultant has not knowingly employed or contracted with a worker without authorization. Consultant 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. If Consultant violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the Owner may terminate this Agreement. If this Agreement is so terminated, Consultant shall be liable for actual damages to the Owner arising out of Consultant’s violation of Subsection 8-17.5-102, C.R.S. 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. DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 17 ________________________________________________________________________ CC5-971.doc Page: 13 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. 34. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract for Construction on the date first above written. ATTESTED BY: CITY OF ASPEN, COLORADO By: ____________ Title:_________________________ APPROVED AS TO FORM: By: City Attorney DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 12/3/2021 | 3:04:47 PM MST 18 ________________________________________________________________________ CC5-971.doc Page: 14 ATTESTED BY: CONTRACTOR: __________________________ By: __________________________ Title:__________________________ General Conditions for Construction Contracts and Special Conditions can be found on City of Aspen Website. https://www.cityofaspen.com/497/Purchasing Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate title. DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 President Joe Kelly 12/1/2021 | 3:23:03 PM MST 19 ________________________________________________________________________ CC5-971.doc Page: 15 CERTIFICATE OF INCORPORATION (To be completed if Contractor is a Corporation) STATE OF ____________________) ) SS. COUNTY OF __________________) On this _______ day of ________________________________, 20____, before me appeared ___________________________________________________, to me personally known, who, being by me first duly sworn, did s ay that s/he is ___________________________________ of _______________________________________________________ and that the seal affixed to said instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and s aid deponent acknowledged said instrument to be the free act and deed of said corporation. WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above written. ______________________________________ Notary Public ______________________________________ Address My commission expires: _______________________ DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 20 ________________________________________________________________________ CC5-971.doc Page: 16 EXHIBIT A – Quote & Scope of Work from GA Western Construction Brian Long Trails Field Supervisor City Parks of Aspen 585 Cemetary Lane, Aspen, Colorado 81611 PROPOSAL TO EPOXY MAROON CREEK BRIDGE SIDEWALK For the City of Aspen G.A. Western Construction Co. proposes to supply the E-Bond Epoxy #526, #3 Flint Rock Aggregate (SF of deck only-no curb), labor, and all additional items as needed to install a Thin Bond Epoxy overlay on the Maroon Creek Bridge Sidewalk. This includes sidewalk preparation:  Cleaning of the concrete by shot blasting/sandblasting to remove all soft or weak surface mortar laitance, carbonations or any other del eterious compound on the sidewalk that would inhibit good bonding of the epoxy to the concrete.  Protection of drain grates and expansion joints.  Placement of two coats E-Bond #526 Epoxy (666 gallons @ $37.00 per gallon) plus Flint Rock Aggregate for 8806 SF +/- deck.  Cleanup of excess aggregate and haul away all waste products , leaving a neat and safe (and ready for the public) sidewalk.  All signage and sidewalk closure items will be provided by The City of Aspen. The closure would need to be for 3 or 4 days with good access to the bridge for pickups, trailer, skidsteer, dump truck (while work is being done). This price is based on today’s pricing and could fluctuate with the price of epoxy. The temperature recommendation by E-Bond in 50 degrees and rising. The 2015 spec sheet is current. Total Bid Price: $75,642.00 DocuSign Envelope ID: 381556C1-4AE7-4D99-BF32-76EBD23CC4D8 21 MEMORANDUM TO:Mayor and City Council FROM:Steve Barr, Parks Operations Manager THROUGH:Matt Kuhn, Parks and Open Space Director MEMO DATE:December 3, 2021 MEETING DATE:December 14, 2021 RE:Parks Fleet – (2) Gas Ventrac Tractor (2) Winter Cabs (2) Sweeper Brush Implements REQUEST OF COUNCIL:The Parks Department is requesting approval of a contract with Potestio Brothers Equipment for the replacement of (2) Ventrac Gas Tractors (2) Winter Cabs (2) Sweeper Brush Implements. SUMMARY AND BACKGROUND: The replacement of this equipment is included in the 2022 Asset Management Plan. City Council has approved the Asset Management Plan in the 2022 Budget. DISCUSSION: The Parks Department utilizes a variety of equipment for our parks, open space and trails maintenance programs. This contract with Potestio Brothers Equipment is a scheduled fleet replacement for each item represented. Parks department Ventrac tractors are used by staff to perform tasks throughout the parks and trails systems. This tractor with implements performs snow removal on the mall, narrow sidewalks and City building entrances. Summer operations utilize mower, blower, seeder, aerator and brush implements on all City assets. The Parks Department operates these tractors year around due to their quality, size, versatility and ease of operation. It should be noted with every replacement cycle Parks Department assess the marketplace for sustainable replacement options to each piece of equipment and at this time we have not discovered an acceptable replacement for this gas powered tractor. The fleet budget accounts for a five-year replacement cycle for this equipment. The contract with Potestio Brothers Equipment is based on a government cooperative purchase agreement priced through Sourcewell. With supporting Sourcewell contracts are effective until 2025. 22 FINANCIAL IMPACTS: The contract with Potestio Brothers Equipment in the amount of $70,994.68 is authorized and accounted for in 2022 fleet vehicles replacement budget. Due to supply chain and parts availability concerns, the vendor has advised that it is urgent to secure these tractors as soon as possible or risk unavailability in 2022, thus we are seeking Council approval for the acquisition of these tractors as early as possible in the 2022 budget. This purchase is part of the Parks and Open Space Fund budget (100 Fund). ENVIRONMENTAL IMPACTS: Maintaining parks and trails provides for green space in the summer, safe winter pedestrian passage encouraging alternative transportation opportunities. ALTERNATIVES:Council could direct staff to postpone the replacement contract, or seek alternative vehicles or contracts. RECOMMENDATIONS:Parks Staff recommends approval of the contract with Potestio Brothers Equipment for the replacement of (2) Ventrac Gas Tractors (2) Winter Cabs (2) Sweeper Brush Implements. PROPOSED MOTION:“I move to approve Ordinance # 125 and its purchase of these items for the Parks fleet replacement for the year 2022”. CITY MANAGER COMMENTS: 23 RESOLUTION # 125 (Series of 2021) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND POTESTIO BROTHERS EQUIPMENT 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, between the City of Aspen and Potestio Brothers Equipment, 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, (2) Ventrac Gas Tractors, (2) Winter Cabs, (2) Sweeper Brush Implements between the City of Aspen and Potestio Brothers Equipment 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 14th day of December 2021. 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, December 14, 2021. Nicole Henning, City Clerk 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 Page 1 of 3 MEMORANDUM TO: Mayor and Council Members FROM: Chris Everson, Affordable Housing Project Manager THROUGH: Rob Schober, Capital Asset Director MEMO DATE: December 3, 2021 MEETING DATE: December 14, 2021 RE: Resolution #126 of 2021, Contract Amendment to Add Transportation Impact Analysis Services to Lumberyard Design Team Contract with Cushing Terrell REQUEST OF COUNCIL: Staff is requesting approval of Resolution #126 of 2021 and the associated contract amendment to add Transportation Impact Analysis and TDM Study services to the Lumberyard Design Team Contract with Cushing Terrell in the amount of $76,365.00. BACKGROUND: On July 27, 2021, Aspen City Council approved a contract with Cushing Terrell as architecture and engineering (AE) design team for the Lumberyard affordable housing development. The contract approved on 7/27/2021 initially included the following services: Part 1: Customized Schematic Design $446,316 Part 2: Supporting the Land Use Entitlements Application $249,412 Total Contract Sum Approved 7/27/2021 $695,728 DISCUSSION: The project team has worked with City of Aspen staff in multiple departments to develop a recommended scope of work for the ongoing design and approval process for the Lumberyard project. The proposed scope of work to be added includes a Level Two Transportation Impact Analysis (TIA) and a Transportation Demand Management (TDM) Study which are required for the land use application. The scope of work additionally includes analysis of transportation impacts around the AABC area and through the SH 82 corridor. Because the full scope of services needed was yet to be determined at the time of the RFP, neither Cushing Terrell nor any other candidates for the Lumberyard design team RFP process included this extensive level of effort in their proposals. Staff sees it as a matter of course to add this scope of services to the contract to create a comprehensive transportation analysis, which has emerged as a priority for the project. The scope of services proposed is designed to satisfy all requirements of the City of Aspen Transportation Impact Analysis Guidelines and will include traffic count data collection and analysis of existing conditions. As requested by City Transportation and City Engineering, traffic data collection will include one week of average daily counts at peak season and peak season weekday and weekend AM and PM counts and will include bicycle and pedestrian counts. 77 Page 2 of 3 Above and beyond a typical Level Two TIA, the proposed analysis will also include review of prior pertinent studies of the area and analysis of any potential conflicts with those prior studies and/or projects, as requested by City Transportation and City Engineering, to include the following prior studies: 1. Entrance to Aspen Record of Decision (1998) 2. Aspen Airport Business Center (AABC) Interim Traffic Impact Study Results, September 2020 3. State Highway 82 Upper Valley Transit Enhancement Study Technical Report, June 2021 4. Integrated Mobility System Phase 1 (June 2020) and Phase 2 Analysis (June 2021) 5. Recent Kimley-Horn-led study and design of the SH 82/Maroon Creek Road roundabout Also above and beyond a typical Level Two TIA, the analysis will include planning for expected changes to the nearby transportation network, other than those at the proposed Lumberyard development, and will account for adjacent land uses and future transportation projects including: 1. Airport Masterplan (as understood to this point) 2. New Fire Department Housing at North Forty 3. Traffic issues south of site at the roundabout 4. Potential signalization along SH 82 And as expected, the analysis will include a Transportation Demand Management (TDM) study which will include TDM and MMLOS toolkit documents, existing transit level of service and options, estimated ridership, and associated costs to provide an acceptable level of service for the Lumberyard housing development. For additional detail, see attached Exhibit D - Fehr & Peers Scope of Services Transportation Impact Analysis and TDM Study. With offices nationwide, including Denver, Fehr & Peers is a leading transportation planning and engineering consulting firm who also performed the preliminary traffic study during the Lumberyard conceptual design process. As the project architect, Cushing Terrell has been instrumental in defining the scope of services and will continue to manage the services provided by Fehr & Peers. FINANCIAL IMPACTS: A summary of the Cushing Terrell contract is shown below. Future parts of scope are intended to be added to the contract by written amendment as the project moves forward. Existing Cushing Terrell Contract: Part 1: Customized Schematic Design $446,316 Part 2: Supporting the Land Use Entitlements Application $249,412 Contract Sum Approved by Aspen City Council 7/27/2021 $695,728 Add Services #1 Financing and Development Consulting by Currell Program Mgmt., Approved CMO 10/24/2021 $49,544 Subtotal Existing Contract Sum: $745,272 Add Services #2 Transportation Analysis by Fehr & Peers, Proposed for Approval by Aspen City Council Dec 14, 2021 $76,365 Proposed Updated Contract Sum: $821,637 78 Page 3 of 3 The following future contract scope parts are expected to be added to the Cushing Terrell contract when appropriate and are potentially subject to change: Potential Add Services #3 Additional Air Quality Study scope definition in process Potential Add Services #4 Additional Noise Study scope definition in process Part 3: Design Development $496,589 Part 4: Supporting the Land Use Entitlements Project Review $110,026 Part 5: Planned Development Documentation $88,395 Part 6: Construction Documents $893,013 Part 7: Supporting the Building Permit Application Process $98,388 Part 8: Construction Administration $479,892 Part 9: Project Closeout and Warranty Support $57,827 RECOMMENDATIONS: Staff recommends approval of Resolution #126 of 2021 and the associated contract amendment to add Transportation Impact Analysis and TDM Study services to the Lumberyard Design Team Contract with Cushing Terrell in the amount of $76,365.00. CITY MANAGER COMMENTS: EXHIBITS: Exhibit A: Cushing Terrell Add Services Contract Amendment, including Exhibit D – Fehr & Peers Scope of Services Transportation Impact Analysis and TDM Study 79 RESOLUTION #126 (Series of 2021) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT AMENDMENT BETWEEN THE CITY OF ASPEN AND CUSHING TERRELL, AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT AMENDMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a Contract Amendment between the City of Aspen and Cushing Terrell, a true and accurate copy of which is attached hereto as “Exhibit A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves the Contract Amendment between the City of Aspen and Cushing Terrell, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said Contract Amendment on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of December, 2021. 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 December 14, 2021. Nicole Henning, City Clerk 80 Document G802™ – 2017 Amendment to the Professional Services Agreement AIA Document G802™ – 2017. Copyright © 2000, 2007 and 2017 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This document was produced by AIA software at 11:56:45 ET on 12/02/2021 under Order No.5692099556 which expires on 08/14/2022, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (3B9ADA5B) 1 PROJECT: (name and address)AGREEMENT INFORMATION:AMENDMENT INFORMATION: Aspen Lumberyard Date: July 27, 2021 Amendment Number: 02 As described in Exhibit B City of Aspen Request for Proposals 2021-150 Date: December 14, 2021 OWNER: (name and address)ARCHITECT: (name and address) City of Aspen 130 South Galena Street Aspen, CO 81611 Cushing Terrell 303 E. 17th Ave, Ste 105 Denver CO 80203 The Owner and Architect amend the Agreement as follows: Add to Article 1.1.12.2 Consultants retained under Additional Services 2. Fehr and Peers To Article 4.1 Additional Services, add 4.1.28 Transportation Impact Analysis and TDM study - responsibility: Architect To Article 4.2 Add Description of Scope: See Exhibit D - Fehr and Peers Scope of Services To Article 13.2.4 Add Exhibit D - Fehr and Peers Scope of Services The Architect’s compensation and schedule shall be adjusted as follows: Compensation Adjustment: Add to Article 11.2: 4.1.28 Transportation Impact Analysis and TDM study - $58,050 hourly not to exceed Fehr and Peers labor, $10,100 traffic counts collection, $2,410 reimbursable expenses, $5,805 hourly not to exceed Cushing Terrell labor Schedule Adjustment: None SIGNATURES: Cushing Terrell ARCHITECT (Firm name) -See attached digital signatures page- OWNER (Firm name) SIGNATURE SIGNATURE Wayne Freeman, Principal in Charge PRINTED NAME AND TITLE PRINTED NAME AND TITLE DATE DATE City of Aspen 81 AIA Document G802™ – 2017. Copyright © 2000, 2007 and 2017 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This document was produced by AIA software at 11:56:45 ET on 12/02/2021 under Order No.5692099556 which expires on 08/14/2022, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (3B9ADA5B) 2 Digital Signatures Page Wayne Freeman Digitally signed by Wayne Freeman Date: 2021.12.02 10:42:13 -07'00' 82 Chris Everson November 15, 2021 Page 2 of 12 Attachment A: Scope of Work The scope below is based on the information provided in the task request, our familiarity with the project area from our previous work at the Aspen Lumberyard site, and our firm’s experience with mixed-use development Traffic Impact Analysis. The City of Aspen Transportation Impact Analysis Guidelines will be utilized for a Level 2 TIA for our analysis and report. Task 0. Project Management & Meetings Fehr & Peers will begin the project by coordinating directly with the City of Aspen to understand the proposed land use plan and existing traffic volume data. We anticipate Principal and staff level participation in up to six meetings with the team. Fehr & Peers will send time-and materials invoices monthly. Task 1. Data Collection Fehr & Peers will review and compile existing data for the study intersections consistent with Table 3 from the City of Aspen Transportation Impact Analysis Guidelines: peak period turning movement counts during peak season (including bicyclist and pedestrian counts), daily traffic counts, multi-modal facilities, travel time and speed, signal timing, crash data, mode split, and transit routes and use. Our team will collect peak period turning movement counts at up to eight study intersections for four time periods (to be used as scenarios for the Existing, Existing Plus Project, Future Background, and Future Background Plus Project analysis): • Summer 2021 weekday AM peak hour • Summer 2021 weekday PM peak hour • Summer 2021 weekend mid-day peak hour • Summer 2021 weekend PM peak hour The eight proposed study intersections are: 1. Sage Way/Baltic Avenue (side-street STOP) 2. SH 82/Baltic Avenue (traffic signal) 3. SH 82/200 Road (side-street STOP) 4. SH 82/Aspen Lumberyard Driveway (side-street STOP) 5. SH 82/Harmony Road (traffic signal) 6. SH 82/Owl Creek Road (traffic signal) Scope of Work Exhibit D - Fehr and Peers Scope of Services Transportation Impact Analysis and TDM Study 83 Chris Everson November 15, 2021 Page 3 of 12 7. SH 82/Truscott Place (traffic signal) 8. SH 82/Maroon Creek Road (roundabout) Including the SH 82/Maroon Creek Road roundabout will ensure that the project’s impacts to queuing in the area are understood. In addition to study intersection data, we will collect a week of daily traffic counts (Monday- Sunday) at one location along SH 82 in the area of study. We will use the daily counts to adjust count data to Summer 2021 conditions. As a part of this task, Fehr & Peers will review and briefly summarize relevant recent studies/projects in the area. Where appropriate, Fehr & Peers will incorporate the recommendations of these studies/projects into analysis of the Aspen Lumberyard site. • Entrance to Aspen Record of Decision (1998) • Aspen Airport Business Center (AABC) Interim Traffic Impact Study Results, September 2020 • State Highway 82 Upper Valley Transit Enhancement Study Technical Report, June 2021 • Integrated Mobility System Phase 1 (June 2020) and Phase 2 Analysis (June 2021) • Recent Kimley-Horn-led study and design of the SH 82/Maroon Creek Road roundabout Task 2. Existing Conditions Analysis Fehr & Peers will document and analyze the existing transportation conditions in the project area. This task will include a description of transportation networks and services as well as crash analysis at the intersections of study. The study will evaluate the peak hour levels of service (LOS) for the study intersections, utilizing SimTraffic software to account for queuing from the SH 82 roundabout. The existing conditions will be evaluated for the AM and PM peak periods. Task 3. Proposed Project Conditions Fehr & Peers will estimate project traffic that is likely to be generated by the land use plan. This task will include trip generation, trip distribution, and trip assignment. The trip generation will be determined based on tables outlined in Appendix A in The City of Aspen Transportation Impact Analysis Guidelines. If any information needs to be supplemented, the ITE Trip Generation, 11th Edition methodologies will be utilized. The budget includes one lane use plan and does not include any changes to this plan as this will require rework to the analysis. Any land use changes that will require rework will be billed on a time and materials basis. Task 4. Existing Plus Project Conditions Analysis Existing plus project conditions volumes are the sum of the existing volumes and the site generated traffic. The analysis will determine the impact of the proposed development on the 84 Chris Everson November 15, 2021 Page 4 of 12 study intersections and project accesses in the existing conditions. Improvements will be recommended as necessary. The existing plus project condition will be evaluated for AM and PM peak periods. Task 5. Future Background Conditions Analysis Fehr & Peers will document and analyze the future background traffic conditions for short-term background and long-term background. This task will include a description of the planned transportation network and surrounding development. Changes to the transportation network that are expected independent of the proposed development will be described and accounted for in our analysis. We will account for adjacent land uses and future transportation projects including: 1. Airport Masterplan for traffic changes 2. New Fire Department Housing at North Forty 3. Traffic issues south of site at the roundabout 4. Potential signalization along SH 82 Fehr & Peers will determine the background traffic for these analysis periods based on the CDOT 20-year factor identified on a nearby count location on SH 82. The future background conditions will be evaluated for the AM and PM peak periods. This scope assumes two background scenario years. Task 6. Future Background Plus Project Conditions Analysis The future background plus project condition volumes are the sum of short-term or long-term future background volumes and the site generated traffic. The analysis will determine the impact of the proposed development on the study intersections and project accesses in the short-term or long-term future conditions. Improvements will be recommended as necessary. The future background plus project condition will be evaluated for AM and PM peak periods. This scope assumes two background scenario years. Task 7. Proposed Mitigation Program A Transportation Demand Management (TDM) study will be completed for the project site including copies of the completed TDM and MMLOS toolkit spreadsheets. We will provide existing transit level of service and options, estimated ridership, and associated costs to provide an acceptable level of service for the Aspen Lumberyard. We assume up to three submittals (submittal, meeting to review the submittal, and incorporation of comments into a revised submittal) of the proposed mitigation program to the team’s civil engineers, architects, and city staff to select the appropriate and effective MMLOS measures. 85 Chris Everson November 15, 2021 Page 5 of 12 Once we arrive at a final set of TDM and MMLOS measures (including transit services), Fehr & Peers will estimate the trip reductions associated with these measures and run Existing Plus Project with Mitigation and Background Plus Project with Mitigation analyses. These analyses will quantify the effect of mitigation on reducing external traffic impacts. Task 8. Report Preparation The first draft report will document the findings of the analysis and provide recommendations in a Draft Transportation Impact Analysis to be submitted to the City of Aspen for initial review. We anticipate having a meeting with the City of Aspen team to review the findings of the first draft report (included in Task 0). Upon receipt of comments, a second draft report will be completed, a response to comments letter compiled, and will be submitted to CDOT, Pitkin County, and RFTA for their review. Upon receipt of comments, a final report will be completed, a response to comments letter compiled, and will be submitted to the City of Aspen. Schedule and Fee We are able to complete a first draft report and proposed mitigation program within three months of collecting traffic counts. Our fee for the scope of work is outlined in Appendix B. 86 Chris Everson November 15, 2021 Page 6 of 12 Attachment B: Fee Estimate Aspen Lumberyard Bowers Alexander Silva Rice Jones Principal-in- Charge Project Manager Transportation Engineer Transportation Planner Admin 0 Project Management & Meetings 4 10 6 0 4 24 4,820$ 1 Data Collection 0 2 4 12 0 18 2,530$ 2 Existing Conditions Analysis 0 8 20 20 0 48 7,380$ 3 Proposed Project Conditions 2 8 12 12 0 34 5,720$ 4 Existing Plus Project Conditions 0 8 20 20 0 48 7,380$ 5 Future Background Conditions Analysis 0 8 20 20 0 48 7,380$ 6 Future Background Plus Project Conditions Analysis 0 8 20 20 0 48 7,380$ 7 Proposed Mitigation Program 4 8 12 8 0 32 5,780$ 8 Report Preparation 8 8 24 16 0 56 9,680$ 18 68 138 128 4 356 58,050$ $270 $235 $155 $120 $115 $4,860 $15,980 $21,390 $15,360 $460 Traffic Counts Collection 10,100$ 2,410$ 70,560$ Total Cost by Task Rate Total Hours by Task Direct Costs (communications, reproduction, etc.) Total Fee Total Hours Labor Costs Task Description Fehr Peers Total Fee Cushing Terrell Coordination 24 $5,805 Cushing Terrell Total Fee (not to exceed) $5,805 87 MEMORANDUM TO:Mayor and City Council FROM:Sara Ott, City Manager MEMO DATE:December 10, 2021 MEETING DATE:December 14, 2021 RE:Resolution # 127, Series of 2021, Amending the Visitor Services and Event Production Agreement with the Aspen Chamber Resort Association (ACRA) REQUEST OF COUNCIL:Staff recommends approval of a one year amendment to the Visitor Service and Special Even Production Agreement with the Aspen Chamber Resort Association (ACRA). PREVIOUS COUNCIL ACTION: Council previously approved the current agreement in 2016. This agreement expires on December 31, 2021. DISCUSSION:The City Manager and ACRA Executive Director have been in discussions of aligning all three ACRA agreements into one master agreement in 2022. These three agreements include the Visitor Services and Event Agreement, the Destination Marketing Agreement, and the Office Space Lease. To align these agreements, a one year extension and modification of the Visitor Services and Event Agreement will provide the necessary time to align with the other agreements that expire in 2022. This particular extension provides an inflationary adjustment for operating 3 visitor centers in the community in 2022. Additionally, there is a reduction in payment for the production of events. The reduction is due to removal of programming for the Independence Day Parade and evening entertainment. These duties will be assumed by the City of Aspen. FINANCIAL/BUDGET IMPACTS: Funding for this contract is included in the 2022 Operating Budget. A. Staffing and Operation of the 590 N. Mill Street, Wheeler Opera House lobby and Guest Services Pavilion Visitor Centers: $233,897.00 B. Special Events $46,000.00 If approved, the Council will see a technical adjustment in the Spring 2022 supplemental to ensure sufficient funding in the Special Events Department and Parks Department for taking on the additional Independence Day activities. 88 RECOMMENDED ACTION:Staff recommends approval of Resolution #127, Series of 2021 89 90 91 92 93 94 95 96 97 DocuSign Envelope ID: 3DF6CD5F-1E35-4307-B70D-068E8EF0142E98 RESOLUTION # 127 (Series of 2021) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING AN ADDENDUM TO CITY OF ASPEN AND ASPEN CHAMBER RESORT ASSOCIATIONAGREEMENT DATED DECEMBER 13, 2016, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID ADDENDUM ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council an Addendum to City Of Aspen And Aspen Chamber Resort Association Agreement Dated December 13, 2016, 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 Addendum to City of Aspen and Aspen Chamber Resort Association Agreement Dated December 13, 2016 and does hereby authorize the City Manager to execute said Addendum on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 14th day of December 2021. 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, December 14, 2021. Nicole Henning, City Clerk 99 ADDENDUM TO CITY OF ASPEN AND ASPEN CHAMBER RESORT ASSOCIATIONAGREEMENT DATED DECEMBER 13, 2016 THIS ADDENDUM is effective this 1st day of January 2022, by and between the CITY OF ASPEN (the “City”) and the ASPEN CHAMBER RESORT ASSOCIATION (“ACRA”), RECITALS WHEREAS, on December 13, 2016, The City and ACRA entered into an Agreement for the operation of visitor and guest services., and WHEREAS, such agreement was amended pursuant to an Addendum executed on July 1, 2020, and WHEREAS, both parties wish to further amend the Agreement of December 13, 2016. AGREEMENT In consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties agree as follows: Section I: Operation of Visitors Centers. 1. ACRA will operate visitor centers at the Wheeler Opera House lobby, Cooper Street guest services pavilion and 590 N. Mill Street. 2. The hours of operation will remain unchanged. In the event ACRA wishes to reduce hours or suspend service at a location, the City will be notified in writing of such request. If the request is granted, the City will receive a corresponding credit for the reduction of hours, prorated to a daily rate per location. Section II: Special Events. 1. ACRA will be the executive producer of Winterskol for 2022 and provide assistance to Food + Wine Classic. 2. The City of Aspen will assume event production responsibilities for Independence Day activities, including but not limited all aspects of the parade, entertainment, coordination with other governments, and safety precautions. 3. ACRA, at its own discretion, may choose to continue to produce the 12 Days of Aspen at its own direction and expense. 4. ACRA may, at its own expense, provide general promotional advertising and marketing of Independence Day in Aspen in line with tourism promotion. 100 Section III. Payments. In consideration of services with the adjustments above, the City of Aspen shall pay to ACRA: 1. Staffing and Operation of the 590 N. Mill Street, Wheeler Opera House lobby and Guest Services Pavilion Visitor Centers: $233,897.00 2. Special Events, including Wintersköl, $46,000.00 Section IV. Future Years. The City intention is to remove these expenses from the City’s General Fund. 2022 will be a transition year. It is anticipated that if these services continue in 2023 and beyond, the Tourism Promotion Fund will cover these expenses. The basis of the City’s position is due to the nature of the services being purchased are consistent with the lodging tax purpose and that there is sufficient funding generated by the lodging tax to cover the City’s desired level of destination marketing and tourism promotion. For reference, the table below shows the exponential growth in this tax revenue. Tourism Promotion Fund Collections, 2010-2022 Year Tax Collections 2010 $504K 2011 $1.6 M 2016 $2.6 M 2019 $2.9 M 2021 Estimated $2.5 M 2022 Projected $3.0 M Future years pursuant to these considerations will be addressed by a subsequent agreement between the parties. Section V. Miscellaneous. 1.All terms of the Agreement dated December 13, 2016, and the Addendum dated July 1, 2020, not amended or otherwise inconsistent with the terms of this Addendumshall remain in full force and effect. If there is any inconsistency between the Agreements, this Addendum shall prevail. 2.Term. The term of the Agreement as amended by this Addendum shall be through December 31, 2022. 3.Binding Effect. This Addendum shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and assigns and to any person into or with which any party hereto may merge, consolidate, or reorganize. 101 4.Counterpart Signatures. This document may be executed in counterpart original copies, with the original signatures on separate pages to be collated together on one original form of the agreement. CITY OF ASPEN, a municipal corporation Attest:__________________________________ _____________________________By: Sara G. Ott City Clerk ASPEN CHAMBER RESORT ASSOCIATION Attest:___________________________________ By: Debbie Braun, President _____________________________ Secretary 102 MEMORANDUM TO:Mayor Torre and Aspen City Council FROM:Robert Schober, Capital Asset Director THROUGH:Scott Miller, Public Works Director MEMO DATE:December 10, 2021 MEETING DATE:December 14, 2021 RE:New City Hall FF&E Contract REQUEST OF COUNCIL: Request approval of a contract in the amount of $144,018.74 with Sandy’s Office Supply for the purchase of furnishings for the New City Hall building. SUMMARY AND BACKGROUND: The initial FF&E package for the New City Hall building was included in the general contractor’s scope of work as a part of the base interior buildout. This package intentionally only included the basics to get staff moved into the building and settled into the space. After having occupied & worked in the new building for several weeks’ additional needs for further FF&E have been identified. The additional furnishings included in this contract include privacy panels for separation of workspaces, modesty panels for desks, lockers for staff without private offices, bookcases, secure storage units and additional folding tables for the Pearl Pass community room. DISCUSSION: Staff is requesting approval of the attached contract with Sandy’s Office Supply. A copy of the contract is included as Exhibit A. FINANCIAL IMPACTS: This request will be funded using 2022 departmental savings. ENVIRONMENTAL IMPACTS: N/A ALTERNATIVES: We could not order the additional FF&E however staff believes that these furnishings are required to maintain the overall functionality for the usage of the new City Hall. 103 RECOMMENDATIONS: Council to approve a contract to Sandy’s Office Supply for New City Hall FF&E. CITY MANAGER COMMENTS: 104 RESOLUTION #128 (Series of 2021) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, DIRECTING THE CITY MANAGER OR ASSITANT CITY MANAGER TO TAKE SUCH ACTION NECESSARY TO EXECUTE A CONTRACT CHANGE ORDER. WHEREAS,pursuant to Resolution #128, Series of 2021, City Council approved the contract in the amount of $144,018.74 a true and accurate copy attached as Exhibit A, between Sandy’s Office Supply and the City of Aspen; and WHEREAS, the City Council has determined that it is in the best interest of the City of Aspen to approve the contract pursuant to the terms thereof. 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 directs the City Manager or Assistant City Manager to take any and all action necessary to approve the contract, pursuant to the terms thereof. INTRODUCED,READ AND ADOPTED by the City Council of the City of Aspen on the 14th, day of December,2021. 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,December 14,2021. Nicole Henning,City Clerk 105 SERVICE AGREEMENT 2021-252 THIS AGREEMENT made this 8 day of 2021 by and between the City of Aspen ("City") and the Supplier identified hereinbelow. WITNESSETH, that whereas the City wishes to purchase the services described hereinbelow and Supplier wishes to provide said services to the City as specified herein. NOW THEREFORE, in consideration of the following covenants, the parties agree as follows: SUPPLIER Sandy’s Office Supply Inc. c/o Mike Husaluk 630 E Hyman Ave. Aspen, CO 81611 970-925-1620 DESCRIPTION OF SERVICE Purchase, delivery, and installation of lockers and other office materials as indicated in attached quotes. Please see Exhibit B for material specifications. DURATION OF AGREEMENT AND SCHEDULE OF SERVICES TO BE PROVIDED Contract duration includes time to deliver and install the lockers and other materials. DESCRIPTION OF AMOUNT, METHOD OR MANNER OF COMPENSATION TOTAL COST $144,018.74 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 106 2 AMENDMENTS TO GENERAL CONDITIONS The parties acknowledge and understand that this Service Agreement is, except as specifically amended hereinabove, subject to all of the terms and conditions set forth in the City of Aspen General Conditions for Service Agreements, a copy of which is appended hereto as Appendix "A" and by this reference made a part hereof. Having agreed to the above and foregoing, the parties hereto do affix their signatures. City of Aspen: Supplier: By: By: Title: _______________________ Title: ________________________ Date: _______________________ Date: _________________________ Approved as to form: _______________________________ City Attorney’s Office General Conditions Special Conditions can be found on City of Aspen Website. https://www.cityofaspen.com/497/Purchasing Serv-981.doc DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 Mike Husaluk VP 12/11/2021 | 7:50:57 AM MST 107 3 EXHIBIT "A" CITY OF ASPEN GENERAL CONDITIONS FOR SERVICE AGREEMENTS These General Conditions have been prepared by the City of Aspen to be incorporated by reference into Service Agreements entered into between service providers ("Supplier") and the City of Aspen ("City"). The provisions herein may be interrelated with standard provisions of the Service Agreement customarily used by the City of Aspen to contract for services. A change in one document may necessitate a change in the other. Any amendments to the following terms and conditions mutually agreed to by the Supplier and the City shall be specifically noted on the Service Agreement. 1. Completion. Supplier shall commence the provision of services as described in the Service Agreement in a timely manner. Upon request of the City, Supplier shall submit, for the City's approval, a schedule for the performance of Supplier's services which shall be adjusted as required. This schedule, when approved by the City, shall not, except for reasonable cause, be altered by the Supplier. 2. Payment. In consideration of the services provided, City shall pay Supplier the amounts set forth in the Service Agreement. Supplier shall submit, in timely fashion, invoices for services performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Supplier within ten days from receipt of the Supplier's billing. Supplier's invoice shall be for the period ending the last day of each month and submitted to the City no later than the 5th day of each month. 3. Non-Assignability. Both parties recognize that this contract 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 Supplier of any of the responsibilities or obligations under this agreement. Supplier shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subSupplier's officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Supplier 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 subSupplier unless agreed to in writing beforehand by the City. 4. Termination. The Supplier or the City may terminate this Agreement upon thirty (30) days notice, without specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. The City shall have the right to terminate the Service Agreement upon three (3) days notice if Supplier fails to comply with the terms and conditions set forth in Sections 1, 3, 5, 6, 7, 10, 13, 14, 16, 19 or 21. For breach of any other term and condition of the Service Agreement, City may terminate the Service Agreement with ten (10) days prior notice to cure and failure by Supplier to so cure. DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 108 4 No compensation shall be earned after the effective date of the termination. Notwithstanding the above, Supplier 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 Supplier, and the City may withhold any payments to the Supplier for the purposes of set-off until such time as the exact amount of damages due the City from the Supplier may be determined. 5. Covenant Against Contingent Fees. The Supplier warrants that s/he has not been employed or retained any company or person, other than a bona fide employee working for the Supplier, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 6. Equipment, Materials and Supplies. Unless otherwise agreed to by the City, Supplier shall acquire, provide, maintain, and repair at Supplier's expense such equipment, materials, supplies, etc., as necessary for the proper conduct of the services to be provided in accordance with the Service Agreement. 7. Contract Monitoring. Supplier agrees to allow City to reasonably monitor the services to be provided in accordance with the Service Agreement. 8. Independent Supplier 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. Supplier shall be, and shall perform as, an independent Supplier 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 Supplier 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 Supplier. 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 Supplier. Supplier shall be solely and entirely responsible for its acts and for the acts of Supplier's agents, employees, servants and subSuppliers during the performance of this contract. Supplier 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 Supplier and/or Supplier's employees engaged in the performance of the services agreed to herein. 9. Indemnification. Supplier 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 Supplier, any subSupplier of the Supplier, or any officer, employee, representative, or agent of the Supplier or of any subSupplier of the Supplier, or which arises out of any workmen's compensation claim of any employee of the Supplier or of any employee of any subSupplier of the Supplier. The Supplier agrees to investigate, DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 109 5 handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Supplier, 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 Supplier for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 10. Supplier's Insurance. (a) Supplier 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 Supplier pursuant to Section 9 above. Such insurance shall be in addition to any other insurance requirements imposed by the Service Agreement or by law. The Supplier shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 9 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Worker's 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 Worker's Compensation requirements of this paragraph. (c) Commercial General Liability insurance with minimum combined single limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and THREE MILLION DOLLARS ($3,000,000.00) 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 include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. (d) 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 Contractor's owned, hired and non-owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision. If the Contractor has no owned automobiles, the requirements of this Section shall be met by each employee of the Contractor providing services to the City under this contract. (e) If the Service Agreement requires any insurance in addition to that referenced above at subsections (a) and (b), or a particular type of coverage, Supplier shall procure and maintain, and shall cause any subSupplier of the Supplier to procure and maintain, the minimum insurance coverages referenced in the Service Agreement. All insurance 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 Supplier pursuant to Section 9 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. DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 110 6 (f) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insur- ance, 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 Supplier. No additional insured endorsement to the policies required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Supplier shall be solely responsible for any deductible losses under any policy required above. (g) The certificate of insurance provided by the City shall be completed by the Supplier'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 the Service Agreement 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. (h) Failure on the part of the Supplier to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may terminate the Service Agreement as provided by Section 4 above, 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 Supplier to City upon demand, or City may offset the cost of the premiums against monies due to Supplier from City. (i) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (j) 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 $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protection 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. 11. 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 Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Supplier for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Supplier reasonable notice of any changes in its membership or participation in CIRSA. 12. Waiver of Presumption. The Service 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 Service Agreement. DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 111 7 13. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion. Supplier certifies, by acceptance of the Service 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 this statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 14. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest. Supplier 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 Supplier for the purpose of securing business. Supplier agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering 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 therefor. Supplier represents that no official, officer, employee or representative of the City during the term of the Service Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in the Service Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of the Service Agreement. 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 the Service Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Supplier, vendor, or sub-Supplier under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Supplier; and 4. Recover such value from the offending parties. 15. Termination for Default or for Convenience of City. The services contemplated by the Service 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. 16. 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 the Service Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, the Service Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of the Service Agreement. DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 112 8 17. City Council Approval. If the Service 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. 18. Notices. Any written notices as called for herein may be hand delivered or mailed by certified mail, return receipt requested to the respective person or address listed for the Supplier in the Service Agreement. 19. Non-Discrimination; penalty. 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. Supplier agrees to meet all of the requirements of City's municipal code, Section 15.04.570, pertaining to non-discrimination in employment. 20. City of Aspen Procurement Code. Notwithstanding anything to the contrary contained herein or in the Contract Documents, the Service Agreement shall be subject to the City of Aspen Procurement Code, Chapter 3 of the Aspen Municipal Code. 21. Compliance With All Laws and Regulations. Supplier shall give all notices and comply with all laws, regulations, and ordinances applicable to the provision of the services contemplated by the Service Agreement. Supplier shall obtain all necessary business licenses and permits, and shall pay all requisite occupation taxes levied by the City of Aspen upon persons engaged in business within the City limits. 22. 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 the Service 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 Supplier to which the same may apply and, until complete performance by Supplier of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under the Service Agreement or by law despite any such forbearance or indulgence. 23. Execution of Service Agreement by City. The Service Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, the Service Agreement shall not be binding upon the City unless duly executed by the City Manager of the City of Aspen (or a duly authorized official in his or her absence). 24. Worker Without Authorization prohibited – CRS §8-17.5-101 & §24-76.5-101 Purpose. During the 2021 Colorado legislative session, the legislature passed House Bill 21- 1075 that amended current CRS §8-17.5-102 (1), (2)(a), (2)(b) introductory portion, and (2)(b)(III) as it relates to the employment of and contracting with a “worker without authorization” which is defined as an individual who is unable to provide evidence that the individual is authorized by the federal government to work in the United States. As amended, the current law prohibits all state agencies and political subdivisions, including the Owner, from DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 113 9 knowingly hiring a worker without authorization to perform work under a contract, or to knowingly contract with a Consultant who knowingly hires with a worker without authorization to perform work under the contract. The law also requires 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. Definitions. The following terms are defined by this reference are incorporated herein and in any contract for services entered into with the Owner. 1. "E-verify program" means the electronic employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is jointly administered by the United States Department of Homeland Security and the social security Administration, or its successor program. 2. "Department program" means the employment verification program established pursuant to Section 8-17.5-102(5)(c). 3. "Public Contract for Services" means this Agreement. 4. "Services" means the furnishing of labor, time, or effort by a Consultant or a subconsultant not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. 5. “Worker without authorization” means an individual who is unable to provide evidence that the individual is authorized by the federal government to work in the United States By signing this document, Consultant certifies and represents that at this time: 1. Consultant shall confirm the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services; and 2. Consultant has participated or attempted to participate in either the e-verify program or the department program in order to verify that new employees are not workers without authorization. Consultant hereby confirms that: 1. Consultant shall not knowingly employ or contract with a worker without authorization to perform work under the Public Contract for Services. 2. Consultant shall not enter into a contract with a subconsultant that fails to certify to the Consultant that the subconsultant shall not knowingly employ or contract with a worker without authorization to perform work under the Public Contract for Services. 3. Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under the public contract for services through participation in either the e-verify program or the department program. DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 114 10 4. Consultant shall not use the either the e-verify program or the department program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. If Consultant obtains actual knowledge that a subconsultant performing work under the Public Contract for Services knowingly employs or contracts with a worker without authorization, Consultant shall: 1. Notify such subconsultant and the Owner within three days that Consultant has actual knowledge that the subconsultant is employing or subcontracting with a worker without authorization: and 2. Terminate the subcontract with the subconsultant if within three days of receiving the notice required pursuant to this section the subconsultant does not stop employing or contracting with the worker without authorization; except that Consultant shall not terminate the Public Contract for Services with the subconsultant if during such three days the subconsultant provides information to establish that the subconsultant has not knowingly employed or contracted with a worker without authorization. Consultant 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. If Consultant violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the Owner may terminate this Agreement. If this Agreement is so terminated, Consultant shall be liable for actual damages to the Owner arising out of Consultant’s violation of Subsection 8-17.5-102, C.R.S. 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. 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. 25. General Terms. (a) It is agreed that neither the Service 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 the Service Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 115 11 (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) The Service Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 26. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 116 12 Exhibit B Com Dev Sandys Office Supply Kim Tyrrell 1 of 1 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 117 13 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 118 14 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 119 15 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 120 16 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 121 17 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 122 18 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 123 19 DocuSign Envelope ID: DE0698DD-2656-497A-9B6D-FFDDBD03CD47 124 MEMORANDUM TO: Mayor Torre and Aspen City Council FROM: Ben Anderson, Principal Long-Range Planner THROUGH: Phillip Supino, Community Development Director MEMO DATE: December 8, 2021 MEETING DATE: December 14, 2021 RE: Ordinance No. 24, Series of 2021 – Second Reading Proposed Land Use Code Changes Calculation of Single-Family and Duplex Residential Affordable Housing Mitigation REQUEST OF COUNCIL: Council is asked to review and approve Ordinance No. 24, Series of 2021 on Second Reading. The Ordinance would have the effect of establishing a revised housing mitigation calculation methodology for single-family and duplex residential development by eliminating the credit for existing floor area in redevelopment scenarios and using a gross, rather than net Floor Area calculation. The redline edits (showing comparison of the existing to new language) of the proposed Amendment to the Land Use Code are included as Exhibit A. A clean draft of the proposed language in included as Exhibit B. Staff recommends Council approve Ordinance No. 24, Series of 2021 on Second Reading. UPDATE SINCE FIRST READING: Minor Changes to Code Language: In response to comments from City Zoning staff, some minor changes were made to the draft language to improve organization and the ability to reference and cross reference between the sections of code proposed for amendments. The outcomes and intent of the code amendments are not altered by these minor changes. Planning and Zoning Commission: At First Reading, the packet did not provide any discussion of Planning and Zoning Commissions Recommendation from November 16th due to the logistical realities related to agenda publishing deadlines. Planning and Zoning Commission held a nearly two- hour discussion on the proposed code changes. There was public comment during the hearing. In a 3-1 vote, P&Z recommended the proposed code amendments. However, this recommendation was conditioned on two things: 125 Staff Memo, Ordinance No. 24, Series of 2021 Page 2 of 7 1) That staff work with APCHA on reviewing the requirements of the Mitigation Deferral Agreement that is available to working locals. The regulations related to the deferral agreement live within the APCHA Guidelines. P&Z wants to ensure that the rules are not unfair or would not place an undue burden on resident property owners. 2) P&Z provided direction to review consistency throughout the code to language related to floor area, gross floor area, net floor area, FAR, etc. Staff agrees that over time, the use of different terms related to these issues have caused confusion between staff and the design community during project development and review. In staff’s view, the proposed code changes bring clarity to the topic of AH mitigation and gross floor area, but acknowledges that a more thorough analysis across the code to ensure consistency and clarity would be a good step. P&Z’s Minutes from the November 16th hearing and their Resolution of recommendation is provided as Exhibit C. Public Comment: Staff has received several phone calls and emails related to the proposed changes. Primarily these comments have been from members of the real estate and development community. Exhibit D includes comments received via email from individuals who asked that their comments be included in the public record. In summary, the comments received via phone and email are related to the following concerns: 1)That the proposed changes will discourage future residential development and redevelopment in Aspen. 2)That projects that are already in planning and with investments already made will have an unfair burden if the proposed changes are implemented immediately and if the impact to mitigation is so drastically increased. 3) That the proposed changes will incentivize remodeling of older, undesirable structures, rather than being replaced with new, efficient, and redesigned structures. 4) That the proposed changes will have detrimental effects to long-term locals who have lived in their homes but who may want to redevelop or sell their property to redevelop. 5) That the current status of the AH Credits market does not have enough credit supply to provide mitigation for such an increase to mitigation requirements. A few comments asked that Council allow for payment of Fee-in-Lieu by right if the proposed changes are implemented. 6) Several commenters suggested a phased implementation of the proposed mitigation increases to allow the market to more gradually respond to the code changes. 126 Staff Memo, Ordinance No. 24, Series of 2021 Page 3 of 7 SUMMARY AND BACKGROUND: Process Steps: • On July 12, 2021 in a Work Session, City Council provided direction to staff to develop a code amendment that would recalculate the affordable mitigation requirements for single-family and duplex residential development. The staff memo from this Work Session is included as Exhibit E. • On November 9, 2021, in a 5-0 vote, City Council passed Policy Resolution No. 106, Series of 2021. The approval of this Policy Resolution formally initiated the Code Amendment process. The Staff Memo and Resolution are included as Exhibit F. • On November 16, 2021, the City of Aspen Planning and Zoning Commission considered the proposed Code Amendment in a public hearing and provided recommendation. The results of this hearing will be presented to Council at First Reading. • On November 23rd, City Council passed Ordinance #24 on First Reading in a 4-0 Vote. Background The relationship of Growth Management to Affordable Housing Mitigation has long been a part of Aspen’s system of housing the employees generated by different development types. The specific mechanisms within the LUC that have defined this relationship over time have been changed and adjusted numerous times to respond to shifting dynamics in Aspen’s development context. It has become apparent through analysis of our Growth Management Allotment system and issued building permits, that residential development and redevelopment is now the dominant contributor to both the real impacts and perceived pressures from development in the community. Overtime, technical changes to the LUC have had the effect of reducing the mitigation requirements for single-family and residential development and redevelopment in a way that has not been applied uniformly to commercial, lodge, and multi-family residential. In the current context, while the construction and other employee generation impacts of single-family and duplex residences has intensified, increases to generation and mitigation have slowed as a consequence of these trends. The current mitigation requirements for single-family and duplex development are based on a 2015 study by research consultants, RRC. While staff and consultants from RRC remain confident in the fundamentals of this study – the application and intersection of the findings of this study with other calculation methodologies (particularly Floor Area) has had the effect of significantly reducing required mitigation. The proposed code changes considered by this Ordinance would do two things in response: 127 Staff Memo, Ordinance No. 24, Series of 2021 Page 4 of 7 1. Remove the credit for existing Floor Area from the calculation of Affordable Housing Mitigation in redevelopment scenarios when demolition occurs. 2. Use a gross Floor Area calculation, rather than a net calculation, in determining mitigation requirements. The gross Floor Area calculation would include all sub- grade areas, garages, and circulation features for the purposes of AH mitigation only. This new methodology would not affect the calculation of allowable floor area in meeting Zone District dimensional requirements, and residential development rights would be unchanged. What would these changes accomplish? Staff believes the changes pursued by these amendments would be an effective response to Council’s GMQS and affordable housing objectives, and community concerns about residential development and may generate the following outcomes: 1. A more fully responsive mechanism to mitigate for the development activity that is most shaping Aspen’s current “growth” context. This includes the continuing trend of increased demand and valuation of single-family and duplex homes, the scale and pace of scrape and replace redevelopment, and the growing role of Short-Term Rentals across our residential zone districts. 2. Assess a mitigation requirement for development that is clearly generating new, under- mitigated demand for employees. 3. Create a more equitable mitigation requirement across different types of development – Commercial, Lodge, Residential. 4. Create additional demand within the Affordable Housing Credits program by increasing mitigation requirements which may be met through the purchase of credits from the market. This may result in the development of more AH units by the private sector. STAFF DISCUSSION: Specific Changes to the Land Use Code Required to Implement While these proposed changes are impactful, they do not require significant changes to the text of the Land Use Code. Four sections of the Code would need to be amended. 1) 26.104.100. Definitions. Floor Area. Staff proposes a minor change to the definition of Floor Area. This is not a definition that is utilized frequently under the current code regime. In essence the change would clarify a gross Floor Area calculation that would apply to all levels of enclosed area on a property. 2) 26.470.090. Administrative applications. (Growth Management). This is the section (26.470.090.A) that would require the most modification as it describes the employee generation and mitigation requirements for single-family and duplex development. The change would identify the use of gross Floor Area in calculating mitigation requirements and would identify three scenarios for how to calculate employee generation: 128 Staff Memo, Ordinance No. 24, Series of 2021 Page 5 of 7 • New construction on an established, vacant lot • Redevelopment or renovation that does not trigger “Demolition” • Redevelopment or renovation that triggers “Demolition” Also, the gross floor area methodology was extended to multi-family expansion scenarios in 26.470.090.B to retain consistency. This is not a code section that is used frequently – and does not apply to scenarios that trigger Multi-Family Replacement requirements 3) 26.470.140. Reconstruction limitations. (Growth Management). This section provides description of the limitations on reconstruction rights following demolition of all types of development. Clarification to the application of this section to single- family and duplex development is needed if the change is made to 26.470.090. 4) 26.575.020.D. Measuring Floor Area. No changes are proposed to the text other than underlining “floor area ratio” and “allowable floor area” to emphasize what this section is describing – and providing a note to direct attention to 26.470.090 for the calculation of employee generation and mitigation for single-family and duplex development. The redline and clean versions of the draft code language are included as Exhibits A&B. Response to Public Comments at Policy Resolution Hearing A member of the public raised concerns with the proposed Code Amendment in two areas: 1) As a long-time resident, property owner and worker – who has also housed other workers over time, the commenter felt that these policies would penalize his situation and would not recognize the provision of housing for locals that he has provided. The commenter also stated that the deferral of any required mitigation for working locals that is built into the code does not go far enough in protecting locals from increasing mitigation requirements. Staff Response: Staff would offer first, that if the commenter wanted to renovate or redevelop his property short of the 40% threshold of demolition and did not add Floor Area in the process, there would be no required mitigation. If the commenter did demolish his family’s home in a redevelopment scenario and did add floor area, there would be mitigation requirements that could be significant, but if the commenter and his family stayed in the home following redevelopment, they could defer mitigation until the property is sold to a non-local worker. In short, these new requirements only become impactful in recognizing employee generation if demolition occurs, or if homes add significant gross Floor Area – including basements. And, any mitigation requirements can be fully deferred for local, working residents. 129 Staff Memo, Ordinance No. 24, Series of 2021 Page 6 of 7 2) The commenter also raised concerns about the unfair impacts to owners of deed-restricted, Resident Occupied (RO) units. Staff Response: Affordable Housing mitigation requirements are not assessed on any deed-restricted affordable housing units – including RO units. The proposed changes would have no effect on these units if they were to renovate or redevelop. Public Outreach Staff has previously discussed the challenges of public outreach on the topic and have engaged in a limited public outreach effort. Here are the opportunities for public engagement that have been part of this process: • Work Session – July 12, 2021. This work session was advertised in Community Development’s regular newsletter and published City Council agendas. • Policy Resolution – November 9, 2021. This was a properly noticed public hearing. Additionally, the Policy Resolution hearing was promoted in Community Development’s regular newsletter. • Aspen Daily News – November 10, 2021. Megan Webber’s article covering the Policy Resolution was on the front page of the print version, the website, and promoted on social media. • Email – November 15, 2021. This was a direct communication to 50+ members of the development community who regularly interact with Community Development on Land Use issues. This email provided attachments with Staff Memos describing the proposed amendments and informed the recipients of upcoming public hearings with P&Z and City Council. • Recommendation, Planning and Zoning Commission – November 16, 2021. This was a properly noticed public hearing. • Ordinance, City Council – December 14, 2021. If the Ordinance is passed at First Reading, Second Reading of the Ordinance will be a properly noticed public hearing. CONCLUSION AND NEXT STEPS: The proposed Amendments under consideration would, in staff’s view, be a positive step in further recognizing the impacts of single-family and duplex development and redevelopment on employee generation and the demand for affordable housing. While impactful, the code amendments necessary to achieve this change are minimal in scope and complexity and do not alter underlying development rights. Staff does recommend that the City re-engage with RRC (consultants who completed the 2015 study) in early 2022 to update the employee generation study to more precisely respond to the policy changes that would be implemented by these code changes. 130 Staff Memo, Ordinance No. 24, Series of 2021 Page 7 of 7 FINANCIAL IMPACTS: ENVIRONMENTAL IMPACTS: ALTERNATIVES: Maintain status quo and not pursue this version of the proposed amendments – or consider other alternatives per Council direction. RECOMMENDATIONS: Staff recommends Council approve Ordinance No. 24, Series of 2021. CITY MANAGER COMMENTS: EXHIBITS: A – Redline Edits of the proposed Amendment B – Clean Draft of the proposed Amendment C – P&Z Minutes and Resolution, November 16, 2021 D – Summary of Public Comments received via e-mail E – Work Session Memo, July 12, 2021 F – Policy Resolution Memo, November 9, 2021 G – Affidavit, Public Notice of Second Reading H – Staff Response to Review Criteria 131 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 1 of 9 ORDINANCE NO. 24 (SERIES OF 2021) AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING CITY OF ASPEN LAND USE CODE SECTION 26.104.100. DEFINITIONS; 26.470.090. ADMINISTRATIVE APPLICATIONS (GMQS); 26.470.140. RECONSTRUCTION LIMITATIONS; AND 26.575.020.D. MEASURING FLOOR AREA; FOR THE PURPOSES OF REVISING THE METHODOLOGY OF THE CALCULATION OF AFFORDABLE HOUSING MITIGATION FOR SINGLE-FAMILY AND DUPLEX DEVELOPMENT. WHEREAS,in accordance with Sections 26.208 and 26.310 of the City of Aspen Land Use Code, the City Council of the City of Aspen directed the Community Development Department to craft code amendments to coordinate the Aspen Area Community Plan (AACP), the Land Use Code and City Council affordable housing goals; and, WHEREAS,Aspen’s affordable housing program and Growth Management Quota System are essential tools for the realization of adopted City policies including the maintenance of a sustainable economy and vibrant, lived-in community; and, WHEREAS,those affordable housing and Growth Management systems require periodic modification to respond to changing legal, social, economic, and policy contexts; and, WHEREAS,pursuant to Section 26.310.020(B)(1), the City of Aspen conducted Public Outreach through various work sessions with Council; and, WHEREAS, at a Work Session on July 12, 2021, City Council provided direction to Community Development staff to develop amendments to the Land Use Code related to affordable housing mitigation requirements related to single-family and duplex development; and, WHEREAS,on November 9, 2021, during a properly noticed public hearing, City Council passed Policy Resolution #106 in, Series of 2021, approving initiation of code amendments; and, WHEREAS, Community Development staff provided public engagement opportunities, and held discussion with the Planning and Zoning Commission in a public hearing on November 16, 2021 and received formal recommendation from Planning and Zoning Commission in Resolution # XX, Series of 2021; and, WHEREAS, at a regular meeting on November 23, 2021 City Council by a Four – Zero (4-0) vote, approved Ordinance No. 24, Series of 2021 on First Reading; and, WHEREAS at a regular meeting on December 14, 2021, during a public hearing, City Council by a X -X (X-X), approved Ordinance 24, Series of 2021 on Second Reading; and, 132 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 2 of 9 WHEREAS,the Aspen City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare; and, NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1: Section 26.104.100. Definitions; shall be rescinded and readopted as follows (all other elements of 26.104 remain unchanged): Floor area. The sum total of the gross horizontal areas of the building measured from the exterior walls of the building. (See, Supplementary Regulations — Section 26.575.020, Calculations and measurements). This calculation is inclusive of all enclosed levels of the buildings on the property – including, but not limited to basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. Section 2:Sections 26.470.090.A and B. Administrative Applications.; shall be rescinded and readopted as follows (all other elements of 26.470.090 remain unchanged): A. Single-Family and Duplex Residential Development or Expansion. The following types of free-market residential development shall require the provision of affordable housing in one of the methods described below: 1) The development of a single-family, two detached residential units, or a duplex dwelling on a lot in one of the following conditions: a. A lot created by a lot split, pursuant to Subsection 26.480.060.A. b. A lot created by a historic lot split, pursuant to Subsection 26.480.060.B, when the subject lot does not itself contain a historic resource. c. A lot that was subdivided or was a legally described parcel prior to November 14, 1977, that complies with the provisions of Subsection 26.480.020, Subdivision: applicability, prohibitions, and lot merger. 2) The net increase of Floor Area of an existing single-family, two detached residential units on a single lot, or a duplex dwelling, during redevelopment and renovation scenarios when the definition of Demolition is not met, regardless of when the lot was subdivided or legally described. This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments. 3) Redevelopment or renovation of an existing single-family, two detached residential units on a single lot, or a duplex dwelling, when the definition of Demolition is met. This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments. 133 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 3 of 9 4) Affordable housing mitigation requirements for the types of free-market residential development described above shall be as follows. The applicant shall have four options: a. Recording a resident-occupancy (RO), or lower, deed restriction on the single-family dwelling unit or one of the residences if a duplex or two detached residences are developed on the property. An existing deed restricted unit does not need to re-record a deed restriction. b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase to the Free-Market unit. The mitigation unit must be deed- restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. Providing a fee-in-lieu payment or extinguishing a Certificate of Affordable Housing Credit in a full-time-equivalent (FTE) amount based on the following schedule: Floor Area per dwelling unit Employment Generation Rate First 4,500 square feet (Floor Area) .16 employees per 1,000 square feet of Floor Area. Above 4,500 square feet (Floor Area) .36 employees per 1,000 square feet of Floor Area. Notes: a. The calculation of Floor Area for the purposes of determining employee generation and required mitigation shall be based on the definition of “Floor Area” in 26.104.100, Definitions: “The sum total of the gross horizonal areas of the building measured from the exterior walls of the building.”This calculation is inclusive of all enclosed levels of the buildings on the property – including, but not limited to basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. b. See Figure 2, in 26.575.020.D, for a depiction of “Measuring to Face of Framing” in calculating Floor Area from exterior wall. c. For new construction on a vacant lot, all Floor Area shall be included in the calculation of employee generation and required mitigation. d. For redevelopment or renovation of an existing single-family or duplex that does not meet the requirements of Demolition 134 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 4 of 9 (26.104.100), only new, additional Floor Area shall be calculated towards employee generation and required mitigation. e. For redevelopment or renovation of an existing single-family or duplex that meets the definition of Demolition (26.104.100), all Floor Area (existing and new) shall be calculated toward employee generation and required mitigation. f.Demolition that occurs as a result of an act of nature or through any manner not purposefully accomplished by the owner, shall be evaluated by Community Development Director, and a credit for existing Floor Area may be issued toward the reconstruction of the home. g. The calculation of the Employment Generation shall be assessed per dwelling unit. Duplex dwelling units do not combine their floor area for one calculation. h. An Accessory Dwelling Unit or Carriage House, as defined by and meeting the requirements of this Title, shall be calculated as floor area of the primary dwelling. i.The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. j.All required mitigation using Certificates of Affordable Housing Credits or fee-in-lieu for single-family and duplex development shall be provided at Category 2. Affordable housing mitigation must be provided at a Category 2 (or lower) rate. Certificates must be extinguished pursuant to the procedures of Chapter 26.540, Certificates of Affordable Housing Credit. Fee-in-lieu rates shall be those stated in Section 26.470.100 – Calculations; Employee Generation and Mitigation, in effect on the date of application acceptance. Providing a fee-in-lieu payment in excess of .10 FTE shall require City Council approval, pursuant to Section 26.470.110.C. Example 1: A new home of 3,400 square feet of Floor Area on a vacant lot created by a historic lot split. The applicant must provide affordable housing mitigation for .54 FTEs. 3,400 / 1,000 x .16 = .54 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. Example 2: An existing home of 4,500 square feet of Floor Area is expanded by 250 square feet of Floor Area. The renovation does not meet the definition of Demolition. The applicant must provide affordable housing mitigation for .09 FTEs. (250/1000 x.36 = .09 FTE 135 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 5 of 9 **Note: the mitigation for the additional Floor Area iscalculated at .36 FTE /1000sf as the home now crosses the 4,500 square feet threshold identified above. In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. Example 3: An existing home is redeveloped in a fashion that meets the definition of Demolition. The redeveloped home has a Floor Area of 5,700 sf. (4,500/1000 x .16) + (1,200/1000 x .36) = 1.15 FTE In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. c. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full- time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. B. Multi-Family Residential Expansion. The following types of free-market residential development shall require the provision of affordable housing in one of the methods described below: 1) The net increase of Floor Area of an existing free-market multi-family unit or structure, regardless of when the lot was subdivided or legally described and provided demolition does not occur. (When demolition occurs, see Section 26.470.100.E, Demolition or redevelopment of multi-family housing.) This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments established pursuant to Section 26.470.040. 2) Affordable housing mitigation requirements for the type of free-market residential development described above shall be as follows. The applicant shall have four options: a. Recording a resident-occupancy (RO), or lower, deed restriction on the dwelling unit(s) being expanded. An existing deed restricted unit does not need to re-record a deed restriction. b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase to the Free-Market unit(s). The mitigation unit(s) must be deed-restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. 136 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 6 of 9 c. Providing a fee-in-lieu payment or extinguishing a Certificate of Affordable Housing Credit in a full-time-equivalent (FTE) amount based on the following schedule: Floor Area per dwelling unit Employment Generation Rate square feet of expansion (Floor Area).18 employees per 1,000 square feet of Floor Area Notes: a. The calculation of Floor Area for the purposes of determining employee generation and required mitigation shall be based on the definition of “Floor Area” in 26.104.100, Definitions: “The sum total of the gross horizonal areas of the building measured from the exterior walls of the building.”This calculation is inclusive of all enclosed levels of the building on the property – including, basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. b. The calculation of the Employment Generation shall be assessed per dwelling unit. Multiple dwelling units do not combine their floor area for one calculation. c. When a unit adds floor area, the difference between the generation rates of the existing floor area and the proposed floor area shall be the basis for determining the number of employees generated. No refunds shall be provided if Floor Area is reduced. d. When demolition is proposed, please see Section 26.470.100.E – Demolition or Redevelopment of Multi-Family Housing. Projects e. The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. Affordable housing mitigation must be provided at a Category 2 (or lower) rate. Certificates must be extinguished pursuant to the procedures of Chapter 26.540, Certificates of Affordable Housing Credit. Fee-in-lieu rates shall be those stated in Section 26.470.050 – Calculations; Employee Generation and Mitigation, in effect on the date of application acceptance. Providing a fee-in-lieu payment in excess of .10 FTE shall require City Council approval, pursuant to Section 26.470.110.C. Example 1: A multi-family unit of 1,400 square feet of Floor Area is expanded by 400 square feet of Floor Area. The applicant must provide affordable housing mitigation for .09 FTEs. 500 / 1,000 x .18 = .09 In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. 137 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 7 of 9 Example 2: A multi-family unit of 1,400 square feet of Floor Area is expanded by 2,600 square feet of Floor Area. The applicant must provide affordable housing mitigation for .47 FTEs, the difference in employee generation of the two unit sizes. 2,600 / 1,000 x .18 = .47 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. d. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full-time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. Section 3.Section 26.470.140. Reconstruction limitations.; shall be rescinded and readopted as follows: 26.470.140.Reconstruction limitations. In reconstruction scenarios, growth management allotments and any other reconstruction rights that this Code establishes, may continue, subject to the following limitations. A.An applicant may propose to demolish and then delay the reconstruction of existing development for a period not to exceed one (1) year. To comply with this limitation and maintain the reconstruction right, an applicant must submit a complete building permit application for reconstruction on or before the one-year anniversary of the issuance date of the demolition permit. The City Council may extend this deadline upon demonstration of good cause. The continuation of growth management allotments in a reconstruction scenario for single-family and duplex development are not subject to this time limitation. B.Single-family and duplex development receive no credit for existing Floor Area for the purposes of determining affordable housing mitigation in redevelopment scenarios that meet the definition of Demolition – per 26.470.090.A.3. The exception to this is when a single-family or duplex is demolished by an act of nature or through any manner not purposefully accomplished by the owner. C.Applicants shall verify existing conditions prior to demolition with the City Zoning Officer in order to document any reconstruction rights. An applicant's failure to accurately document existing conditions prior to demolition and verify reconstruction rights with the City Zoning Officer may result in a loss of some or all of the reconstruction rights. D.Reconstructed buildings shall comply with applicable requirements of the Land Use Code, including but not limited to Chapter 26.312, Nonconformities, and Chapter 26.710, Zone Districts. E.Reconstruction rights shall be limited to reconstruction on the same parcel or on an adjacent parcel under the same ownership. 138 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 8 of 9 F.Residential redevelopment credits may be converted to lodge redevelopment credits by right. The conversion rate shall be three (3) lodge units per each one (1) residential unit. This is a one-way conversion, and lodge credits may not be converted to residential credits. Section 4:Section 26.575.020.D. Measuring Floor Area. (Calculations and Measurements); shall in part (all other elements of 26.575.020.D are unchanged), be rescinded and readopted as follows: 26.575.020. Calculations and Measurements D.Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior-mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) Note: In measuring Floor Area for the purposes of calculating employee generation and affordable housing mitigation for single-family and duplex development and the expansion of multi-family development shall utilize a gross Floor Area calculation. Please refer to 26.470.090. Section 5: Any scrivener’s errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Section 6: 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 resolutions or ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior resolutions or ordinances. Section 7: 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. Section 8: A public hearing on this ordinance was held on the 14th day of December 2021, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, 139 Ordinance No. 24, Series of 2021 First Reading Single-Family and Duplex Affordable Housing Mitigation Page 9 of 9 Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 23rd day of November 2021. ATTEST: _____________________________ ____________________________ Nicole Henning, City Clerk Torre, Mayor FINALLY,adopted, passed and approved this ___ day of __________, 2021. _______________________________ Torre, Mayor ATTEST:APPROVED AS TO FORM: _____________________________________________________________ Nicole Henning, City Clerk James R. True, City Attorney 140 26.104.100. Definitions Floor area. The sum total of the gross horizontal areas of each story of the building measured from the exterior walls of the building. (See, Supplementary Regulations — Section 26.575.020, Calculations and measurements). This calculation is inclusive of all enclosed levels of the buildings on the property – including, but not limited to basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. Formatted: Font: 12 pt 141 26.470.090 Administrative applications. The following types of development shall be approved, approved with conditions or denied by the Community Development Director, pursuant to Section 26.470.060, Procedures for Review, and the criteria described below. Except as noted, all administrative growth management approvals shall not be deducted from the annual development allotments. All approvals apply cumulatively. A. Single-Family and Duplex Residential Development or Expansion. The following types of free-market residential development shall require the provision of affordable housing in one of the methods described below: 1) The development of a single-family, two detached residential units, or a duplex dwelling on a lot in one of the following conditions: a. A lot created by a lot split, pursuant to Subsection 26.480.060.A. b. A lot created by a historic lot split, pursuant to Subsection 26.480.060.B, when the subject lot does not itself contain a historic resource. c. A lot that was subdivided or was a legally described parcel prior to November 14, 1977, that complies with the provisions of Subsection 26.480.020, Subdivision: applicability, prohibitions, and lot merger. 2) The net increase of Floor Area of an existing single-family, two detached residential units on a single lot, or a duplex dwelling, during redevelopment and renovation scenarios when the definition of Demolition is not met, regardless of when the lot was subdivided or legally described. and regardless of whether demolition occurs. This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments. 3) Redevelopment or renovation of an existing single-family, two detached residential units on a single lot, or a duplex dwelling, when the definition of Demolition is met. This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments. 2) 3)4) Affordable housing mitigation requirements for the types of free-market residential development described above shall be as follows. The applicant shall have four options: a. Recording a resident-occupancy (RO), or lower, deed restriction on the single-family dwelling unit or one of the residences if a duplex or two detached residences are developed on the property. An existing deed restricted unit does not need to re-record a deed restriction. b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase to the Free-Market unit. The mitigation unit must be deed-restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. c. Providing a fee-in-lieu payment or extinguishing a Certificate of Affordable Housing Credit in a full-time-equivalent (FTE) amount based on the following schedule: Formatted: Indent: Left: 0.5", No bullets or numbering Formatted: Indent: Left: 0.5", No bullets or numbering 142 Floor Area per dwelling unit Employment Generation Rate First 4,500 square feet (Floor Area) .16 employees per 1,000 square feet of Floor Area. Above 4,500 square feet (Floor Area) .36 employees per 1,000 square feet of Floor Area. Notes: a. The calculation of the Employment Generation shall be assessed per dwelling unit. Duplex dwelling units do not combine their floor area for one calculation. b. An Accessory Dwelling Unit or Carriage House, as defined by and meeting the requirements of this Title, shall be calculated as floor area of the primary dwelling. c. When redevelopment of a property adds floor area, the difference between the generation rates of the existing floor area and the proposed floor area shall be the basis for determining the number of employees generated. No refunds shall be provided if Floor Area is reduced. d. When demolition is proposed, the redevelopment shall be credited the floor area from the demolished residential dwelling unit. Credit from a demolished dwelling unit cannot be allocated to development on a different lot. a. The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. a. The calculation of Floor Area for the purposes of determining employee generation and required mitigation shall be based on the definition of “Floor Area” in 26.104.100, Definitions: “The sum total of the gross horizonal areas of the building measured from the exterior walls of the building.” This calculation is inclusive of all enclosed levels of the buildings on the property – including, basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. b. See Figure 2, in 26.575.020.D, for a depiction of “Measuring to Face of Framing” in calculating Floor Area from exterior wall. c. For new construction on a vacant lot, all Floor Area shall be included in the calculation of employee generation and required mitigation. d. For redevelopment or renovation of an existing single-family or duplex that does not meet the requirements of Demolition (26.104.100), only new, additional Floor Area shall be calculated towards employee generation and required mitigation. e. For redevelopment or renovation of an existing single-family or duplex that meets the definition of Demolition (26.104.100), all Floor Area (existing and new) shall be calculated toward employee generation and required mitigation. Formatted: Numbered + Level: 2 + Numbering Style: a,b, c, … + Start at: 1 + Alignment: Left + Aligned at: 0.56" + Indent at: 0.81" Formatted: Font: (Default) Times New Roman Formatted: Numbered + Level: 1 + Numbering Style: a,b, c, … + Start at: 1 + Alignment: Left + Aligned at: 0.75" + Indent at: 1" Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman 143 f. Demolition that occurs as a result of an act of nature or through any manner not purposefully accomplished by the owner, shall be evaluated by Community Development Director, and a credit for existing Floor Area may be issued toward the reconstruction of the home. g. The calculation of the Employment Generation shall be assessed per dwelling unit. Duplex dwelling units do not combine their floor area for one calculation. h. An Accessory Dwelling Unit or Carriage House, as defined by and meeting the requirements of this Title, shall be calculated as floor area of the primary dwelling. i. The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. j. All required mitigation using Certificates of Affordable Housing Credits or fee-in-lieu for single-family and duplex development shall be provided at Category 2. e. All required mitigation using Certificates of Affordable Housing Credits or fee-in-lieu for single-family and duplex development shall be provided at Category 2. Affordable housing mitigation must be provided at a Category 2 (or lower) rate. Certificates must be extinguished pursuant to the procedures of Chapter 26.540, Certificates of Affordable Housing Credit. Fee-in-lieu rates shall be those stated in Section 26.470.100 – Calculations; Employee Generation and Mitigation, in effect on the date of application acceptance. Providing a fee-in-lieu payment in excess of .10 FTE shall require City Council approval, pursuant to Section 26.470.110.C. Example 1: A new home of 3,400 square feet of Floor Area on a vacant lot created by a historic lot split. The applicant must provide affordable housing mitigation for .54 FTEs. 3,400 / 1,000 x .16 = .54 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. Example 2: An existing home of 4,5400 square feet of Floor Area is expanded by 250 square feet of Floor Area. The renovation does not meet the definition of Demolition. The applicant must provide affordable housing mitigation for .097 FTEs., the difference in employee generation of the two house sizes. (4,500 / 1,000 x .16) + (150 / 1,000 x .36) – (4,400 / 1,000 x .16) = .07 (250/1000 x.36 = .09 FTE **Note: the mitigation for the additional Floor Area is calculated at .36 FTE /1000sf as the home now crosses the 4,500 square feet threshold identified above. In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. Example 3: An existing home is redeveloped in a fashion that meets the definition of Demolition. The redeveloped home has a Floor Area of 5,700 sf. (4,500/1000 x .16) + (1,200/1000 x .36) = 1.15 FTE Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman Formatted: Font: (Default) Times New Roman Formatted: Numbered + Level: 1 + Numbering Style: a,b, c, … + Start at: 1 + Alignment: Left + Aligned at: 0.75" + Indent at: 1" Formatted: List Paragraph, No bullets or numbering Formatted: Underline Formatted: Font: Not Italic Formatted: Font: Italic 144 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. d.c. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full-time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. B. Multi-Family Residential Expansion. The following types of free-market residential development shall require the provision of affordable housing in one of the methods described below: 1) The net increase of Floor Area of an existing free-market multi-family unit or structure, regardless of when the lot was subdivided or legally described and provided demolition does not occur. (When demolition occurs, see Section 26.470.100.E, Demolition or redevelopment of multi-family housing.) This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments established pursuant to Section 26.470.040. 2) Affordable housing mitigation requirements for the type of free-market residential development described above shall be as follows. The applicant shall have four options: a. Recording a resident-occupancy (RO), or lower, deed restriction on the dwelling unit(s) being expanded. An existing deed restricted unit does not need to re-record a deed restriction. b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase to the Free-Market unit(s). The mitigation unit(s) must be deed-restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. c. Providing a fee-in-lieu payment or extinguishing a Certificate of Affordable Housing Credit in a full-time-equivalent (FTE) amount based on the following schedule: Floor Area per dwelling unit Employment Generation Rate square feet of expansion (Floor Area) .18 employees per 1,000 square feet of Floor Area Notes: a. The calculation of Floor Area for the purposes of determining employee generation and required mitigation shall be based on the definition of “Floor Area” in 26.104.100, Definitions: “The sum total of the gross horizonal areas of the building measured from the exterior walls of the building.” This calculation is inclusive of all enclosed levels of the building on the property – including, basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas Formatted: Font: Not Italic Formatted: Font: 12 pt Formatted: Numbered + Level: 1 + Numbering Style: a,b, c, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Indent at: 0.5" Formatted: Font: Not Bold 145 of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. f.b. The calculation of the Employment Generation shall be assessed per dwelling unit. Multiple dwelling units do not combine their floor area for one calculation. g.c. When a unit adds floor area, the difference between the generation rates of the existing floor area and the proposed floor area shall be the basis for determining the number of employees generated. No refunds shall be provided if Floor Area is reduced. h.d.When demolition is proposed, please see Section 26.470.100.E – Demolition or Redevelopment of Multi-Family Housing. Projects i.e. The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. Affordable housing mitigation must be provided at a Category 2 (or lower) rate. Certificates must be extinguished pursuant to the procedures of Chapter 26.540, Certificates of Affordable Housing Credit. Fee-in-lieu rates shall be those stated in Section 26.470.050 – Calculations; Employee Generation and Mitigation, in effect on the date of application acceptance. Providing a fee-in-lieu payment in excess of .10 FTE shall require City Council approval, pursuant to Section 26.470.110.C. Example 1: A multi-family unit of 1,400 square feet of Floor Area is expanded by 400 square feet of Floor Area. The applicant must provide affordable housing mitigation for .09 FTEs. 500 / 1,000 x .18 = .09 In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. Example 2: A multi-family unit of 1,400 square feet of Floor Area is expanded by 2,600 square feet of Floor Area. The applicant must provide affordable housing mitigation for .47 FTEs, the difference in employee generation of the two unit sizes. 2,600 / 1,000 x .18 = .47 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. d. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full-time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. 26.470.140. Reconstruction limitations. In reconstruction scenarios, growth management allotments and any other reconstruction rights that this Code establishes, may continue, subject to the following limitations. A. An applicant may propose to demolish and then delay the reconstruction of existing development for a period not to exceed one (1) year. To comply with this limitation and maintain the reconstruction right credit, an applicant must submit a complete building permit application for reconstruction on or before the one-year anniversary of the issuance date of the demolition permit. The City Council may extend this Formatted: Font: 12 pt Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Indent: Left: 0", First line: 0" 146 deadline upon demonstration of good cause. This time limitation shall not apply to the reconstruction of single-family and duplex development. The continuation of growth management allotments in a reconstruction scenario for single family and duplex development are not subject to this time limitation. A.B. Single-family and Duplex development receive no credit for Floor Area in redevelopment scenarios that meet the definition of Demolition – per 26.470.090.A.3. The exception to this is when a single-family or duplex is demolished by an act of nature or through any manner not purposefully accomplished by the owner. B.C. Applicants shall verify existing conditions prior to demolition with the City Zoning Officer in order to document any reconstruction rights. An applicant's failure to accurately document existing conditions prior to demolition and verify reconstruction rights with the City Zoning Officer may result in a loss of some or all of the reconstruction rights. C.D. Reconstructed buildings shall comply with applicable requirements of the Land Use Code, including but not limited to Chapter 26.312, Nonconformities, and Chapter 26.710, Zone Districts. D.E. Reconstruction rights shall be limited to reconstruction on the same parcel or on an adjacent parcel under the same ownership. E.F. Residential redevelopment credits may be converted to lodge redevelopment credits by right. The conversion rate shall be three (3) lodge units per each one (1) residential unit. This is a one-way conversion, and lodge credits may not be converted to residential credits. Formatted: No bullets or numbering 147 D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior-mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) Framing Exterior Face of Framing Property Line Window Window Sill Wood Veneer Stone Veneer Floor Area Measured to Face of Framing Setback measured to edge of veneer 148 26.575.020. , Calculations and Measurements D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior-mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) Note: In measuring Floor Area for the purposes of calculating employee generation and affordable housing mitigation for single-family and duplex development and the expansion of multi-family development shall use a gross Floor Area calculation. Please refer to 26.470.090. Formatted: Font: Bold Formatted: Underline Formatted: Underline Formatted: Font: (Default) Times New Roman, 12 pt 149 26.104.100. Definitions Floor area. The sum total of the gross horizontal areas of the building measured from the exterior walls of the building. (See, Supplementary Regulations — Section 26.575.020, Calculations and measurements). This calculation is inclusive of all enclosed levels of the buildings on the property – including, but not limited to basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. 150 26.470.090 Administrative applications. The following types of development shall be approved, approved with conditions or denied by the Community Development Director, pursuant to Section 26.470.060, Procedures for Review, and the criteria described below. Except as noted, all administrative growth management approvals shall not be deducted from the annual development allotments. All approvals apply cumulatively. A. Single-Family and Duplex Residential Development or Expansion. The following types of free-market residential development shall require the provision of affordable housing in one of the methods described below: 1) The development of a single-family, two detached residential units, or a duplex dwelling on a lot in one of the following conditions: a. A lot created by a lot split, pursuant to Subsection 26.480.060.A. b. A lot created by a historic lot split, pursuant to Subsection 26.480.060.B, when the subject lot does not itself contain a historic resource. c. A lot that was subdivided or was a legally described parcel prior to November 14, 1977, that complies with the provisions of Subsection 26.480.020, Subdivision: applicability, prohibitions, and lot merger. 2) The net increase of Floor Area of an existing single-family, two detached residential units on a single lot, or a duplex dwelling, during redevelopment and renovation scenarios when the definition of Demolition is not met, regardless of when the lot was subdivided or legally described. . This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments. 3) Redevelopment or renovation of an existing single-family, two detached residential units on a single lot, or a duplex dwelling, when the definition of Demolition is met. This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments. 4) Affordable housing mitigation requirements for the types of free-market residential development described above shall be as follows. The applicant shall have four options: a. Recording a resident-occupancy (RO), or lower, deed restriction on the single-family dwelling unit or one of the residences if a duplex or two detached residences are developed on the property. An existing deed restricted unit does not need to re-record a deed restriction. b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase to the Free-Market unit. The mitigation unit must be deed-restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. Providing a fee-in-lieu payment or extinguishing a Certificate of Affordable Housing Credit in a full-time- equivalent (FTE) amount based on the following schedule: 151 Floor Area per dwelling unit Employment Generation Rate First 4,500 square feet (Floor Area) .16 employees per 1,000 square feet of Floor Area. Above 4,500 square feet (Floor Area) .36 employees per 1,000 square feet of Floor Area. Notes: a. The calculation of Floor Area for the purposes of determining employee generation and required mitigation shall be based on the definition of “Floor Area” in 26.104.100, Definitions: “The sum total of the gross horizonal areas of the building measured from the exterior walls of the building.” This calculation is inclusive of all enclosed levels of the buildings on the property – including, but not limited to basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. b. See Figure 2, in 26.575.020.D, for a depiction of “Measuring to Face of Framing” in calculating Floor Area from exterior wall. c. For new construction on a vacant lot, all Floor Area shall be included in the calculation of employee generation and required mitigation. d. For redevelopment or renovation of an existing single-family or duplex that does not meet the requirements of Demolition (26.104.100), only new, additional Floor Area shall be calculated towards employee generation and required mitigation. e. For redevelopment or renovation of an existing single-family or duplex that meets the definition of Demolition (26.104.100), all Floor Area (existing and new) shall be calculated toward employee generation and required mitigation. f. Demolition that occurs as a result of an act of nature or through any manner not purposefully accomplished by the owner, shall be evaluated by Community Development Director, and a credit for existing Floor Area may be issued toward the reconstruction of the home. g. The calculation of the Employment Generation shall be assessed per dwelling unit. Duplex dwelling units do not combine their floor area for one calculation. h. An Accessory Dwelling Unit or Carriage House, as defined by and meeting the requirements of this Title, shall be calculated as floor area of the primary dwelling. i. The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. j. All required mitigation using Certificates of Affordable Housing Credits or fee-in-lieu for single-family and duplex development shall be provided at Category 2. Affordable housing mitigation must be provided at a Category 2 (or lower) rate. Certificates must be extinguished pursuant to the procedures of Chapter 26.540, Certificates of Affordable Housing Credit. Fee-in-lieu rates shall be those stated in Section 26.470.100 – Calculations; Employee Generation and Mitigation, in effect on the date of application 152 acceptance. Providing a fee-in-lieu payment in excess of .10 FTE shall require City Council approval, pursuant to Section 26.470.110.C. Example 1: A new home of 3,400 square feet of Floor Area on a vacant lot created by a historic lot split. The applicant must provide affordable housing mitigation for .54 FTEs. 3,400 / 1,000 x .16 = .54 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. Example 2: An existing home of 4,500 square feet of Floor Area is expanded by 250 square feet of Floor Area. The renovation does not meet the definition of Demolition. The applicant must provide affordable housing mitigation for .09 FTEs. (250/1000 x.36 = .09 FTE **Note: the mitigation for the additional Floor Area iscalculated at .36 FTE /1000sf as the home now crosses the 4,500 square feet threshold identified above. In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. Example 3: An existing home is redeveloped in a fashion that meets the definition of Demolition. The redeveloped home has a Floor Area of 5,700 sf. (4,500/1000 x .16) + (1,200/1000 x .36) = 1.15 FTE In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. c. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full-time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. B. Multi-Family Residential Expansion. The following types of free-market residential development shall require the provision of affordable housing in one of the methods described below: 1) The net increase of Floor Area of an existing free-market multi-family unit or structure, regardless of when the lot was subdivided or legally described and provided demolition does not occur. (When demolition occurs, see Section 26.470.100.E, Demolition or redevelopment of multi-family housing.) This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments established pursuant to Section 26.470.040. 2) Affordable housing mitigation requirements for the type of free-market residential development described above shall be as follows. The applicant shall have four options: a. Recording a resident-occupancy (RO), or lower, deed restriction on the dwelling unit(s) being expanded. An existing deed restricted unit does not need to re-record a deed restriction. b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase 153 to the Free-Market unit(s). The mitigation unit(s) must be deed-restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. c. Providing a fee-in-lieu payment or extinguishing a Certificate of Affordable Housing Credit in a full-time-equivalent (FTE) amount based on the following schedule: Floor Area per dwelling unit Employment Generation Rate square feet of expansion (Floor Area) .18 employees per 1,000 square feet of Floor Area Notes: a. The calculation of Floor Area for the purposes of determining employee generation and required mitigation shall be based on the definition of “Floor Area” in 26.104.100, Definitions: “The sum total of the gross horizonal areas of the building measured from the exterior walls of the building.” This calculation is inclusive of all enclosed levels of the building on the property – including, basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife-resistant trash and recycling enclosures. b. The calculation of the Employment Generation shall be assessed per dwelling unit. Multiple dwelling units do not combine their floor area for one calculation. c. When a unit adds floor area, the difference between the generation rates of the existing floor area and the proposed floor area shall be the basis for determining the number of employees generated. No refunds shall be provided if Floor Area is reduced. d. When demolition is proposed, please see Section 26.470.100.E – Demolition or Redevelopment of Multi-Family Housing. Projects e. The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. Affordable housing mitigation must be provided at a Category 2 (or lower) rate. Certificates must be extinguished pursuant to the procedures of Chapter 26.540, Certificates of Affordable Housing Credit. Fee-in-lieu rates shall be those stated in Section 26.470.050 – Calculations; Employee Generation and Mitigation, in effect on the date of application acceptance. Providing a fee-in-lieu payment in excess of .10 FTE shall require City Council approval, pursuant to Section 26.470.110.C. Example 1: A multi-family unit of 1,400 square feet of Floor Area is expanded by 400 square feet of Floor Area. The applicant must provide affordable housing mitigation for .09 FTEs. 500 / 1,000 x .18 = .09 In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. Example 2: A multi-family unit of 1,400 square feet of Floor Area is expanded by 2,600 square feet of Floor Area. The applicant must provide affordable housing mitigation for .47 FTEs, the difference in employee generation of the two unit sizes. 2,600 / 1,000 x .18 = .47 154 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. d. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full-time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. 26.470.140. Reconstruction limitations. In reconstruction scenarios, growth management allotments and any other reconstruction rights that this Code establishes, may continue, subject to the following limitations. A. An applicant may propose to demolish and then delay the reconstruction of existing development for a period not to exceed one (1) year. To comply with this limitation and maintain the reconstructionright , an applicant must submit a complete building permit application for reconstruction on or before the one-year anniversary of the issuance date of the demolition permit. The City Council may extend this deadline upon demonstration of good cause. The continuation of growth management allotments in a reconstruction scenario for single family and duplex development are not subject to this time limitation. B. Single-family and Duplex development receive no credit for Floor Area in redevelopment scenarios that meet the definition of Demolition – per 26.470.090.A.3. The exception to this is when a single-family or duplex is demolished by an act of nature or through any manner not purposefully accomplished by the owner. C. Applicants shall verify existing conditions prior to demolition with the City Zoning Officer in order to document any reconstruction rights. An applicant's failure to accurately document existing conditions prior to demolition and verify reconstruction rights with the City Zoning Officer may result in a loss of some or all of the reconstruction rights. D. Reconstructed buildings shall comply with applicable requirements of the Land Use Code, including but not limited to Chapter 26.312, Nonconformities, and Chapter 26.710, Zone Districts. E. Reconstruction rights shall be limited to reconstruction on the same parcel or on an adjacent parcel under the same ownership. F. Residential redevelopment credits may be converted to lodge redevelopment credits by right. The conversion rate shall be three (3) lodge units per each one (1) residential unit. This is a one-way conversion, and lodge credits may not be converted to residential credits. 155 26.575.020. Calculations and Measurements D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior-mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) Note: In measuring Floor Area for the purposes of calculating employee generation and affordable housing mitigation for single-family and duplex development and the expansion of multi-family development shall use a gross Floor Area calculation. Please refer to 26.470.090. 156 Minutes Aspen Planning and Zoning Commission August 3, 2021 Page 1 of 8 Chairperson McKnight called the regular Planning and Zoning (P&Z) meeting for November 16th, 2021 to order at 4:30 PM. Commissioners in attendance: Ruth Carver, Sam Rose, Teraissa McGovern, and Spencer McKnight. Commissioners not in attendance: Brittanie Rockhill and Scott Marcoux Staff in Attendance: Amy Simon, Planning Director Ben Anderson, Principal Long-Range Planner Kate Johnson, Assistant City Attorney Cindy Klob, Records Manager COMMISSIONER COMMENTS None STAFF COMMENTS Ms. Simon will send out an email to all members with calendar updates through the end of the year. Ms. McGovern stated she will not be able to attend the December 7th meeting. PUBLIC COMMENTS None APPROVAL OF MINUTES None DECLARATION OF CONFLICT OF INTEREST None PUBLIC HEARINGS Land Use Code Amendment Resolution – P&Z Recommendation for Single-Family and Duplex Affordable Housing Mitigation Mr. McKnight opened the hearing and turned the floor over to staff. Mr. Ben Anderson, Principal Long-Range Planner, stated he would be reviewing a proposed code amendment in process with City Council at this time. This code amendment originated out of several discussions with City Council over the last couple of years around growth management and affordable housing. As part of the outreach for the proposed amendment, staff is asking for a recommendation from the commission. He reviewed the options for approving the draft resolution provided in the agenda packet or not making a recommendation at all. Mr. Anderson reviewed the origins of the proposed code amendment around Council’s concerns regarding a lot of development pressure in town. He stated staff performed an analysis of the growth management allotments of which most of the affordable housing mitigation requirements are connected with the allotment system. The analysis indicated approximately 90% of the allotments year 157 Minutes Aspen Planning and Zoning Commission August 3, 2021 Page 2 of 8 to year were not being utilized for all different types of development even though there is a lot of development pressure in town. He added as a consequence, the affordable housing mitigation is not being produced in proportion to the development pressure the community is feeling. He stated the systems designed in the 1970’s no longer allow for growth management and affordable housing to function together. Mr. Anderson stated some changes were made this summer including increases to the fee-in-lieu (FIL), lodging mitigation requirements and affordable housing credits. He stated Council asked staff to work on single-family and duplex residential development and mitigation requirements since it is felt this is currently driving the development context in town. He then explained the areas believed not to providing expected mitigation. He stated the proposed amendment will eliminate the credit for existing floor area and move from a net floor area to a gross floor area calculation for the affordable housing mitigation. This will bring areas including basements, garages and vertical circulation areas of the development currently exempted from the calculation to be included in the calculation of the affordable housing mitigation. Mr. Anderson then identified the review criteria when considering code amendments. He also reviewed what the Aspen Area Community Plan (AACP) states. He described the content applicable to the proposed code amendments. Mr. Anderson next reviewed the two ways growth management is handled for residential development. He described the first way uses triggers for the demand for a growth management allotment such as when a new subdivision or lot is created, a change in development type occurs or when multi-family units are developed or redeveloped. He noted these types of developments have not been happening in Aspen for some time even though it has been the community expectation for affordable housing. He stated the second way the code mitigates residential development is with single-family and duplex development and redevelopment on existing residential lots. It is currently based on the floor area calculation in the land use code based on an employee generation study from 2015. The study looked at impacts of construction on employee generation and looked at operations and maintenance. He noted the big piece is how the floor area is measured noting when an existing home is torn down, the floor area is credited towards their eventual mitigation requirements and the calculation utilizes net floor area instead of gross floor area and excludes basements, garages, and vertical circulation elements. Mr. Anderson displayed graphics comparing the current code versus the proposed code amendments. Ms. McGovern wanted to clarify the credit is for existing floor area not existing square footage (SF). She gave an example of a home that is 2,000 SF, but the floor area is only 1,500 SF based on the excluded elements such as the garage and vertical circulation. She feels this could be explained better in the code. Mr. Anderson agreed the definitions are not always clear and different professions such as a realtor and the Pitkin County Assessor, view the terms differently as well. He added the amendments would look at gross floor area of all horizontal surfaces between exterior walls of the structure instead of net floor area. Mr. Anderson explained examples of the impacts to the calculation based on the proposed code amendments. Mr. Anderson then further described the difference between net and gross floor area calculations. He noted currently, the City is seeing gigantic basements being added to homes, often setback to setback which have very significant construction impacts. The subgrade areas hold mechanical equipment which 158 Minutes Aspen Planning and Zoning Commission August 3, 2021 Page 3 of 8 have long-term maintenance and operational impacts as well. He then displayed a slide showing an example of the current and proposed floor area calculations with a basement as part of the example. He added another amendment would acknowledge the findings of the 2015 Generation study which showed that as homes increase in size, their long-germ operation and maintenance generation is more significant. The proposed changes include a higher FTE generation rate for homes over 4,500 SF in size. Mr. Anderson next displayed a table showing examples of six actual projects between 2015 and 2020. The table included the mitigations base on the current code and the impacts to the projects based on the proposed code amendments. He stated construction on these sites can go on for a couple of years with 20 people on site during that time which he believes the community is stating they feel impacts from these construction sites. Mr. Anderson stated City Council has asked staff to work on the affordable housing mitigation parity between commercial and residential projects. He displayed a graphic providing an example of the Full Time Equivalents (FTEs) for 6,000 SF of commercial (18.33 FTEs) and the same SF for residential (1.26 FTEs) based on the proposed code amendments. Mr. Anderson next reviewed the code changes. One change will be in the definition of floor area. Another change identifies three kinds of development scenarios under growth management in terms around credit. Another area to be changed includes the reconstruction limitations under growth management to provide clarity to what happens to allotments and floor area credit for a demolition. Mr. Anderson then reviewed the deferral of mitigation requirements currently allowed for property owners qualified as a full-time, local working resident. He also clarified this would not change any other dimensional rights for a piece of property. Mr. Anderson concluded stating the proposed schedule for the ordinance review with Council with the first reading on November 23rd and the second reading and public hearing on December 14th. He stated staff recommends approval of the resolution as provided. Mr. McKnight asked for any questions from the commission members. Mr. Rose asked what Pitkin County has in place for the exact topic. Mr. Anderson replied the City and County had a unified system which started in the late 1970’s but over the years, the County’s concept of growth management and affordable housing mitigation has diverged from the City’s concept. The County’s most recent proposed changes were really about reducing the maximum home size. The proposed changes did not talk as much about their mitigation requirement. He doesn’t believe they compare all that much at this time. Mr. Rose stated he worries about the unintended consequences of doing something like this having it effects property values and taxes. Mr. Rose asked where the money generated from the proposed changes would be used. Mr. Anderson replied the reason they have the study is to help show the impacts on affordable housing mitigation generated. He noted people may have different opinions regarding if the proposed changes are fair or not. He also not the City does not currently collect a lot of FIL money because mitigation is encouraged through affordable housing credits. He added hopefully these requirements incentivize private sector developers to produce affordable housing units so the City can give them affordable housing credits which can then be purchased from the developers. Developers may also mitigate by going to City Council and ask to pay a FIL which if allowed by Council would go into the 150 fund which is 159 Minutes Aspen Planning and Zoning Commission August 3, 2021 Page 4 of 8 dedicated to building and maintaining affordable housing projects such as Truscott, Burlingame, and the Lumber Yard. Mr. Rose asked for an example of a private developer buying these credits. Ms. McGovern noted Mr. Anderson identified the FIL in his examples to simply see the possible changes in dollars. She added what they’re actually talking about is recalculating the FTE. She added credits are purchased to offset FTEs, not the FIL. Mr. Anderson stated the most recent project completed was at 210 W Main St and is a mix of category units. The project generated 18 FTEs which were handed over when the certificate of occupancy was issued. The developer may now sell them in a private transaction to other developers who need them for mitigating their projects. He believes the certificate system is unique to Aspen. Ms. McGovern stated this is a great idea, but she wants some of the details clarified. She asked with the proposed increase of FTE load doubling, could it be possible to get into a situation where there are not enough FTEs available in certificates to offset the development. Mr. Anderson responded potentially that situation could occur but there are multiple ways to mitigate a project including deed restricting a unit, buy down a unit to create a mini credits project or the FIL option. Ms. McGovern stated she is concerned developers with credits will not sell them in smaller chunks and will only sell them larger projects. This could make credits cost prohibitive for a single-family homeowner. It is also costly and time sensitive to go before Council to ask about the FIL. Mr. Anderson stated the first credits project came online in 2012 and there has not been a single person come to City Council to request to pay the FIL. He believes the market for credits ebbs and flows over time and it was an intentional decision to make it difficult to do anything other than credits and to have the FIL process a little bit arduous so the market could kind of sort it out. Ms. McGovern feels because we are running out of room to build affordable housing and therefore FTEs, the proposed changes will tip the balance even faster. Mr. Anderson hopes the proposed changes would drive a more consistent demand for affordable housing mitigation. He added developers building for credits are currently having to wait three to five years to get their revenue back from credits. Ms. McGovern asked if the code could be updated to clarify the definitions of net floor area, gross floor area and gross SF. She uses gross SF and floor area. Mr. Anderson replied to really fix everything would require a fairly major undertaking to pull apart a huge section of the land use code. He added it is a topic he would like to engage at some point. Mr. Anderson stated he would look further into it. Ms. Carver is concerned for the resident of Aspen who has finally afforded to buy a house and wants to put in a basement that the cost of the smaller homes will be raised for anybody dreaming of buying a home. She stated she sees the other end of the spectrum every day in Aspen with the large basements and constant construction and understands why this is being proposed. She asked if residents living in town for a period of time and were continuing to live in town wouldn’t have a larger mitigation requirement, even if they were to sell. She doesn’t believe it’s fair to the working class Aspenite who is able to buy a home. 160 Minutes Aspen Planning and Zoning Commission August 3, 2021 Page 5 of 8 Mr. Anderson responded she has a valid point. Mr. Anderson noted Mr. Mike Maple is attending the hearing tonight and he made similar comments last week. He added the average single-family home price in Aspen is now between $10 and $11 million dollars at a conservative SF estimate of $3,000 per SF. He continued stating staff and City Council acknowledge there are long time working locals who have contributed significantly to the community. He explained if they want to stay in their homes and never pay a dollar of mitigation, they can do a huge remodel as long as they don’t add SF. And if they want to do a bigger project on their property, the deferment program is available to them. He added there’s been a real transformation of the functions of homes that once dominated the community so it’s challenging to operate in this economic reality, address the affordable housing crisis and provide protections for the folks described by Ms. Carver. Ms. Carver acknowledged there has been a shift but there are still locals who may want to improve their homes. Mr. McKnight asked the commissioners for their current positions. Ms. McGovern thinks it’s a good idea and reiterated her concerns regarding the availability of credits for homeowners. Mr. Rose thinks it a great idea but wondered if the mitigation percentages could be scaled more instead of the 0.16 to the 0.36 based on the SF. Ms. Johnson wanted to clarify the FTE numbers were developed after several studies were conducted to look at the impact of development and the numbers correlate to the data. Ms. Carver stated she can see the point of the proposed changes but wanted to see how the other members felt about her example of a local homeowner. Ms. McGovern does not feel this is unfairly burdening the local who already owns their home because of the deferral program. Mr. McKnight agreed with Ms. McGovern. Mr. McKnight opened the floor for public comment. Mr. Maple does not feel the City is not doing enough to create affordable housing and noted the Lumber Yard project as an example where only 300 units are planned will be built on an expensive site and dedicating $20 million dollars for underground parking. He encouraged everyone to demand to be part of the review of these projects. He does not feel the City has been doing a good job for decades. He does not believe staff’s interpretation of the 2015 study to apply the mitigation to different numbers is valid, proper, or fair and probably illegal. Mr. Maple stated he is an Aspen homeowner, and his family has lived here since 1968. He has owned his home for 25 or 26 years and his house is now 53 years old. One day he would like to be able to rebuild his home but feels the proposed changes will push the possibility over the edge. He stated there is no way he would consider participating in the deferral program because you are deferring what might be due in the future and the deferment program does not recognize the residents in the house as credit for mitigating FTE units. He would also like residents to be recognized for the time they have been living in the home. Mr. McKnight closed public comment. Mr. McKnight asked staff if he wanted to respond to Mr. Maple’s comment. 161 Minutes Aspen Planning and Zoning Commission August 3, 2021 Page 6 of 8 Mr. Anderson believes he made valid points with the increasing difficultly for working locals to live in non-deed restricted housing in this town. Mr. Anderson noted the 2015 study is about new construction activity and the impacts of this activity in new homes. He noted there have been people who have taken advantage of the deferral program with smaller additions and in full redevelopment projects. Mr. McKnight asked if there are some negative impacts of the deferral program he is missing. Mr. Anderson believes Mr. Maple is most concerned about the uncertainty of future mitigation requirements but noted if the home is sold in the future to a local, the deferral continues. Ms. McGovern asked what section of code covers the deferral program. Mr. Anderson replied it’s in the growth management section. Mr. Anderson added when a homeowner uses the deferral program, essentially a deed restriction is placed on the property. He continued stating the Aspen Pitkin County Housing Authority (APCHA) handles the placement of the deed restriction. Ms. McGovern is interested to read the language how the agreement is added. Ms. Johnson stated she is not sure there are more specifics in the code, but there may be some direction in the APCHA forms and agreements required as part of the deferral program. Ms. McGovern asked if there was a way to work with APCHA outside of this process to change the deferred costs calculated based on the time of development versus the time of sale to see if would provide long-time locals more certainty. Mr. McKnight feels it is important to have this conversation as well and understands Mr. Maples’s concerns. Mr. Anderson responded staff could include an addition to the recommendation if the commissioners want to add it. Ms. Carver stated in the past the commission has passed on similar recommendations to Council and feels the Council only sees the commission approved it. She is not willing to approve the resolution without these points regarding the long-time owner clarified more. Mr. Spencer is not sure he wants to move it forward as well. Ms. McGovern stated because it is not defined in the code, she does not feel she has a position to not pass it until what is being asked for is defined and she doesn’t believe the commission has purview over these items. She feels it is appropriate to add it as a recommendation to the condition. Ms. Simon stated there is language in the APCHA guidelines defining exactly how the deferral process works. She then summarized the section to the commissioners. Mr. Anderson stated he has seen three of these agreements in the past six years but understands they may become more regular under the proposed code changes. Mr. Rose feels it’s a tough one and feels Mr. Maples’s real life example was very moving. He is concerned about the negative effects for locals on something that is supposed to be positive. Ms. McGovern stated although she does not own a free market residence, she considers herself a local. Mr. Rose responded he does not want to have one good thing at the cost of another. They both agreed they want a balanced solution. 162 Minutes Aspen Planning and Zoning Commission August 3, 2021 Page 7 of 8 Mr. Rose asked Mr. Maple what he would change about it. Mr. Maple feels staff’s proposal is fundamentally flawed. He does not feel the study supports staff’s proposal. He thinks the deferral program should be defined in the code and not in APCHA guidelines. He believes the deferral program should recognize the occupancy of a local homeowners as mitigation and mitigation should not be calculated at the time of the sale which is an unknown. Mr. Rose believes some credit should be available for locals in free market housing. Mr. Anderson stated he hears those points but noted on all the mitigation requirements, it is for the generation of new development activity. He added if Mr. Maple wanted to renovate his home without tearing it down, there would not be a single dollar of affordable housing mitigation. The mitigation would be assessed on new SF added as part of a redevelopment. Considering Mr. Maples’s suggestions would necessitate a whole different kind of mitigation requirements. Ms. McGovern reiterated she believes this is not in the purview of this commission and if changes to the deferral program are to be deliberated further, it should be done with the APCHA Board. Ms. Johnson stated the commission could make a recommendation to suggest a study of the deferral program and the provisions to address certain concerns. The issue before the commission at this hearing is the proposed amendment by staff and whether or not the commission makes recommendation with or without conditions for the amendments to be adopted by Council. Mr. Anderson added his suggestion for a recommendation would be to acknowledge the issue and the concern. Ms. Carver feels it is a great start but is not a complete product so she will not recommend it tonight. Ms. McGovern would vote to forward this to Council with comments to review the code section regarding the deferral program. Mr. Rose and Mr. McKnight both agreed with Ms. McGovern. Mr. Anderson asked to confirm their action will be a recommendation of support with the condition for staff to evaluate the relationship of the deferral agreement and the notion of the deferral amount being assessed at the time of the building permit rather than the time of the future sale. Ms. McGovern feels it is too specific and perhaps it should be an overall review of the deferral program. Mr. McKnight agreed with Ms. McGovern and wants to evaluate unforeseen consequences of proposed amendments. Ms. Carver is concerned Council will approve the proposed amendments and not really consider the Commission’s conditions. Mr. McKnight agreed he is frustrated at times with how much Council does or does not listen to the commission, but this is the process available. Ms. McGovern stated another condition she would like is to really drill down on the definition of net floor area versus gross floor area. Ms. McGovern understands Ms. Carver’s concerns as well. Ms. McGovern motioned to approve Resolution #12, Series 2021 with the conditions of further review of the net and gross floor area and the deferral program for housing mitigation. Mr. Rose seconded the 163 Minutes Aspen Planning and Zoning Commission August 3, 2021 Page 8 of 8 motion. Mr. McKnight asked for a roll call: Ms. Carver, no; Mr. Rose, Ms. McGovern, yes; Mr. McKnight, yes; for a total of three (3) in favor – one (1) not in favor. The motion passed. Ms. McGovern motioned to adjourn and was seconded by Ms. Carver. All in favor and the meeting was adjourned at 6:30 pm. Cindy Klob, Records Manager 164 Planning and Zoning Commission Res. XX No., Series of 2021 Page 1 of 9 RESOLUTION NO. 12 (SERIES OF 2021) A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION RECOMMENDING APPROVAL BY CITY COUNCIL OF PROPOSED AMENDMENTS TO THE LAND USE CODE IN CHAPTERS 26.104, GENERAL PROVISIONS; 26.470, GROWTH MANNAGEMENT QUOTA SYSTEM; AND 26.575, MISCELLANEOUS SUPPLEMENTAL REGULATIONS. WHEREAS, the Community Development Department has held multiple work sessions with City Council on the topic of coordination of the Land Use Code and Council’s affordable housing goals; and, WHEREAS, at a work session on July 12, 2021, City Council provided direction to Community Development staff to develop Land Use Code amendments related to affordable housing mitigation requirements for single-family and duplex development; and, WHEREAS, on November 9, 2021, City Council passed Policy Resolution #106, Series of 2021, approving initiation of code amendments; and, WHEREAS Community Development staff are proposing specific amendments to the Land Use Code; and, WHEREAS, at a duly noticed public hearing on November 16, 2021, the Planning and Zoning Commission considered the proposed code amendment, reviewed staff’s memo, and received public comment at the hearing, and by a three - one (3-1) vote approves Resolution No. 12, Series of 2021, recommending Council consideration and approval of the proposed amendments. NOW, THEREFORE BE IT RESOLVED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF ASPEN, COLORADO THAT: Section 1: Planning and Zoning Commission recommends Land Use Code Amendments to: a. Section 26.104.100 that amends the definition of Floor Area. b. Section 26.470.090 that amends the employee generation and mitigation calculation for single-family and duplex residential development, and expansion of multifamily development. c. Section 26.470.140 that amends Reconstruction Limitations to be consistent with the changes made to 26.470.090. d. Section 26.575.020.D to bring clarity in measuring Floor Area for “floor area ratio” and “allowable floor area” as differentiated from measuring Floor Area for the calculation of employee generation and mitigation for single-family and duple development. The proposed language for the Amendments to Land Use Code are attached as Exhibit A. 165 Planning and Zoning Commission Res. XX No., Series of 2021 Page 2 of 9 Section 2: The Planning and Zoning Commissions recommendation of support was conditioned on the conveyance to City Council of the following direction: a. That the APCHA affordable housing mitigation deferral agreement for local, working residents be re-evaluated – particularly related to concerns that future mitigation would be based on regulations in place at the time of the future sale of the property to a non-working, non-local purchaser, rather than at the time of the initial mitigation requirement. b. Staff should give attention to providing further clarity as to terms and measurements in the Land Use Code at the intersection of floor area, square footage, gross floor area, net floor area and floor area ratio. Section 3: This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and shall not affect the validity of the remaining portions thereof. FINALLY, adopted, passed, and approved this 16th day of November 2021. Approved as to form: Approved as to content: ______________________________ __________________________________ Katherine Johnson, Assistant City Attorney Spencer McKnight, Chair Attest: _______________________________ Cindy Klob, Records Manager EXHIBIT A: Draft of Proposed Code Language 166 Planning and Zoning Commission Res. XX No., Series of 2021 Page 3 of 9 EXHIBIT A: Proposed Code Language 26.104.100. Definitions Floor area. The sum total of the gross horizontal areas of the building measured from the exterior walls of the building. (See, Supplementary Regulations — Section 26.575.020, Calculations and measurements). 26.470.090 Administrative applications. The following types of development shall be approved, approved with conditions or denied by the Community Development Director, pursuant to Section 26.470.060, Procedures for Review, and the criteria described below. Except as noted, all administrative growth management approvals shall not be deducted from the annual development allotments. All approvals apply cumulatively. A. Single-Family and Duplex Residential Development or Expansion. The following types of free-market residential development shall require the provision of affordable housing in one of the methods described below: 1) The development of a single-family, two detached residential units, or a duplex dwelling on a lot in one of the following conditions: a. A lot created by a lot split, pursuant to Subsection 26.480.060.A. b. A lot created by a historic lot split, pursuant to Subsection 26.480.060.B, when the subject lot does not itself contain a historic resource. c. A lot that was subdivided or was a legally described parcel prior to November 14, 1977, that complies with the provisions of Subsection 26.480.020, Subdivision: applicability, prohibitions, and lot merger. 2) The net increase of Floor Area of an existing single-family, two detached residential units on a single lot, or a duplex dwelling, during redevelopment and renovation scenarios when the definition of Demolition is not met, regardless of when the lot was subdivided or legally described. This type of development shall not require a growth 167 Planning and Zoning Commission Res. XX No., Series of 2021 Page 4 of 9 management allocation and shall not be deducted from the respective annual development allotments. 3) Redevelopment or renovation of an existing single-family, two detached residential units on a single lot, or a duplex dwelling, when the definition of Demolition is met. This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments. 4) Affordable housing mitigation requirements for the types of free-market residential development described above shall be as follows. The applicant shall have four options: a. Recording a resident-occupancy (RO), or lower, deed restriction on the single-family dwelling unit or one of the residences if a duplex or two detached residences are developed on the property. An existing deed restricted unit does not need to re-record a deed restriction. b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger than 30% of the Floor Area increase to the Free-Market unit. The mitigation unit must be deed- restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. c. Providing a fee-in-lieu payment or extinguishing a Certificate of Affordable Housing Credit in a full-time-equivalent (FTE) amount based on the following schedule: Floor Area per dwelling unit Employment Generation Rate First 4,500 square feet (Floor Area) .16 employees per 1,000 square feet of Floor Area. Above 4,500 square feet (Floor Area) .36 employees per 1,000 square feet of Floor Area. Notes: - The calculation of Floor Area for the purposes of determining employee generation and required mitigation shall be based on the definition of “Floor Area” in 26.104.100, Definitions: “The sum total of the gross horizonal areas of the building measured from the exterior walls of the building.” This calculation is inclusive of all enclosed levels of the buildings on the property – including, basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. This calculation shall not include storage areas of less than 32 square feet, or minimally sized wildlife- resistant trash and recycling enclosures. 168 Planning and Zoning Commission Res. XX No., Series of 2021 Page 5 of 9 - See Figure 2, in 26.575.020.D, for a depiction of “Measuring to Face of Framing” in calculating Floor Area from exterior wall. - For new construction on a vacant lot, all Floor Area shall be included in the calculation of employee generation and required mitigation. - For redevelopment or renovation of an existing single-family or duplex that does not meet the requirements of Demolition (26.104.100), only new, additional Floor Area shall be calculated towards employee generation and required mitigation. - For redevelopment or renovation of an existing single-family or duplex that meets the definition of Demolition (26.104.100), all Floor Area (existing and new) shall be calculated toward employee generation and required mitigation. - Demolition that occurs as a result of an act of nature or through any manner not purposefully accomplished by the owner, shall be evaluated by Community Development staff, and a credit for existing Floor Area may be issued toward the reconstruction of the home. - The calculation of the Employment Generation shall be assessed per dwelling unit. Duplex dwelling units do not combine their floor area for one calculation. - An Accessory Dwelling Unit or Carriage House, as defined by and meeting the requirements of this Title, shall be calculated as floor area of the primary dwelling. - The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. - All required mitigation using Certificates of Affordable Housing Credits or fee-in-lieu for single-family and duplex development shall be provided at Category 2. Affordable housing mitigation must be provided at a Category 2 (or lower) rate. Certificates must be extinguished pursuant to the procedures of Chapter 26.540, Certificates of Affordable Housing Credit. Fee-in-lieu rates shall be those stated in Section 26.470.100 – Calculations; Employee Generation and Mitigation, in effect on the date of application acceptance. Providing a fee-in-lieu payment in excess of .10 FTE shall require City Council approval, pursuant to Section 26.470.110.C. Example 1: A new home of 3,400 square feet of Floor Area on a vacant lot created by a historic lot split. The applicant must provide affordable housing mitigation for .54 FTEs. 3,400 / 1,000 x .16 = .54 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. 169 Planning and Zoning Commission Res. XX No., Series of 2021 Page 6 of 9 Example 2: An existing home of 4,500 square feet of Floor Area is expanded by 250 square feet of Floor Area. The renovation does not meet the definition of Demolition. The applicant must provide affordable housing mitigation for .09 FTEs. 250/1000 x.36 = .09 **Note: the mitigation for the additional Floor Area is calculated at .36 FTE /1000sf as the home now crosses the 4,500 square feet threshold identified above. In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. Example 3: An existing home is redeveloped in a fashion that meets the definition of Demolition. The redeveloped home has a Floor Area of 5,700 sf. The applicant must provide affordable housing for 1.15 FTEs. (4,500/1000 x .16) + (1,200/1000 x .36) = 1.15 FTE In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. d. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full- time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. B. Multi-Family Residential Expansion. The following types of free-market residential development shall require the provision of affordable housing in one of the methods described below: 1) The net increase of Floor Area of an existing free-market multi-family unit or structure, regardless of when the lot was subdivided or legally described and provided demolition does not occur. (When demolition occurs, see Section 26.470.100.E, Demolition or redevelopment of multi-family housing.) This type of development shall not require a growth management allocation and shall not be deducted from the respective annual development allotments established pursuant to Section 26.470.040. 2) Affordable housing mitigation requirements for the type of free-market residential development described above shall be as follows. The applicant shall have four options: a. Recording a resident-occupancy (RO), or lower, deed restriction on the dwelling unit(s) being expanded. An existing deed restricted unit does not need to re-record a deed restriction. b. Providing a deed restricted one-bedroom or larger affordable housing unit within the Aspen Infill Area pursuant to the Aspen/Pitkin County Housing Authority Guidelines (which may require certain improvements) in a size equal to or larger 170 Planning and Zoning Commission Res. XX No., Series of 2021 Page 7 of 9 than 30% of the Floor Area increase to the Free-Market unit(s). The mitigation unit(s) must be deed-restricted as a "for sale" Category 2 (or lower) housing unit and transferred to a qualified purchaser according to the provisions of the Aspen/Pitkin County Housing Authority Guidelines. c. Providing a fee-in-lieu payment or extinguishing a Certificate of Affordable Housing Credit in a full-time-equivalent (FTE) amount based on the following schedule: Floor Area per dwelling unit Employment Generation Rate square feet of expansion (Floor Area) .18 employees per 1,000 square feet of Floor Area Notes: - The calculation of Floor Area for the purposes of determining employee generation and required mitigation shall be based on the definition of “Floor Area” in 26.104.100, Definitions: “The sum total of the gross horizonal areas of the building measured from the exterior walls of the building.” This calculation is inclusive of all enclosed levels of the building on the property – including, basements, crawl spaces, attics with walkable floors, garages, and vertical circulation. - The calculation of the Employment Generation shall be assessed per dwelling unit. Multiple dwelling units do not combine their floor area for one calculation. - When a unit adds floor area, the difference between the generation rates of the existing floor area and the proposed floor area shall be the basis for determining the number of employees generated. No refunds shall be provided if Floor Area is reduced. - When demolition is proposed, please see Section 26.470.100.D – Demolition or Redevelopment of Multi-Family Housing Projects. - The above generation rates are based on a study of employment generation of Aspen residences, from both initial construction and ongoing operation, performed by RRC Associates of Boulder, Colorado, dated March 4, 2015. Affordable housing mitigation must be provided at a Category 2 (or lower) rate. Certificates must be extinguished pursuant to the procedures of Chapter 26.540, Certificates of Affordable Housing Credit. Fee-in-lieu rates shall be those stated in Section 26.470.050 – Calculations; Employee Generation and Mitigation, in effect on the date of application acceptance. Providing a fee-in-lieu payment in excess of .10 FTE shall require City Council approval, pursuant to Section 26.470.110.C. Example 1: A multi-family unit of 1,400 square feet of Floor Area is expanded by 400 square feet of Floor Area. The applicant must provide affordable housing mitigation for .09 FTEs. 500 / 1,000 x .18 = .09 In this example the applicant may provide a Certificate of Affordable Housing Credit or a fee-in-lieu payment. 171 Planning and Zoning Commission Res. XX No., Series of 2021 Page 8 of 9 Example 2: A multi-family unit of 1,400 square feet of Floor Area is expanded by 2,600 square feet of Floor Area. The applicant must provide affordable housing mitigation for .47 FTEs, the difference in employee generation of the two unit sizes. 2,600 / 1,000 x .18 = .47 In this example the applicant may provide a Certificate of Affordable Housing Credit or request City Council accept a fee-in-lieu payment. d. For property owners qualified as a full-time local working resident, an affordable housing mitigation deferral agreement may be accepted by the City of Aspen subject to the Aspen/Pitkin County Housing Authority Guidelines. This allows deferral of the mitigation requirement until such time as the property is no longer owned by a full-time local working resident. Staff of the City of Aspen Community Development Department and Staff of the Aspen/Pitkin County Housing Authority can assist with the procedures and limitations of this option. 26.470.140. Reconstruction limitations. In reconstruction scenarios, growth management allotments and any other reconstruction rights that this Code establishes, may continue, subject to the following limitations. A. An applicant may propose to demolish and then delay the reconstruction of existing development for a period not to exceed one (1) year. To comply with this limitation and maintain the reconstruction right, an applicant must submit a complete building permit application for reconstruction on or before the one-year anniversary of the issuance date of the demolition permit. The City Council may extend this deadline upon demonstration of good cause. The continuation of growth management allotments in a reconstruction scenario for single-family and duplex development are not subject to this time limitation. B. Single-family and duplex development receive no credit for existing Floor Area for the purposes of determining affordable housing mitigation in redevelopment scenarios that meet the definition of Demolition – per 26.470.090.A.3. The exception to this is when a single-family or duplex is demolished by an act of nature or through any manner not purposefully accomplished by the owner. C. Applicants shall verify existing conditions prior to demolition with the City Zoning Officer in order to document any reconstruction rights. An applicant's failure to accurately document existing conditions prior to demolition and verify reconstruction rights with the City Zoning Officer may result in a loss of some or all of the reconstruction rights. D. Reconstructed buildings shall comply with applicable requirements of the Land Use Code, including but not limited to Chapter 26.312, Nonconformities, and Chapter 26.710, Zone Districts. E. Reconstruction rights shall be limited to reconstruction on the same parcel or on an adjacent parcel under the same ownership. 172 Planning and Zoning Commission Res. XX No., Series of 2021 Page 9 of 9 F. Residential redevelopment credits may be converted to lodge redevelopment credits by right. The conversion rate shall be three (3) lodge units per each one (1) residential unit. This is a one- way conversion, and lodge credits may not be converted to residential credits. 26.575.020. Calculations and Measurements D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior-mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) Note: In measuring Floor Area for the purposes of calculating employee generation and affordable housing mitigation for single-family and duplex development, please refer to 26.470.090. 173 Public Comment Received Via Email EXHIBIT D Thank you for providing the information on the proposed code amendments. Please consider this a formal response: It may be in the public interest to effectively stop all development and redevelopment of properties in Aspen. That is really the question to debate with respect to these proposed amendments. I do not believe that additional real estate investment will occur if these amendments become code. As a consequence, there will not be a corresponding increase in the production of private-sector affordable housing or an increase in payments to facilitate city development of affordable housing projects. In short, this is not an effective measure to increase the production of affordable housing because the development exactions are simply too draconian to support new development. On the other hand, the cessation of new development may be an appropriate goal for the city and would be supported by the proposed amendments. In a sense, this would eventually moderate the present housing-jobs imbalance and ultimately even reduce construction traffic. Because of pipeline projects, the effect of these changes would not be immediately felt. But as a strategy to increase affordable housing assets, I do not believe it will be effective. Thanks for the opportunity to comment. Stan Stan Clauson, AICP, ASLA STAN CLAUSON ASSOCIATES INC landscape architecture . planning . resort design Please note our new address: 400 W. Main Street, Suite 203 Aspen, Colorado 81611 t. +1 970/925.2323 f. +1 970/920.1628 c. +1 970/274.3265 stan@scaplanning.com www.scaplanning.com _________________________________________________________________________________________________________________ I am writing with public comment regarding the proposed land use code changes relating to affordable housing mitigation calculations. Please add this note to P&Z and Council’s packets. I generally understand the desire to change the calculation methodology, but have a few points for your consideration: 1. DELAYED IMPLEMENTATION - Homeowners, including myself, have recently purchased property with a reliance on the current calculation methodology to determine costs. It would be fair to provide a reasonable period of time (180 days?) after approval of this ordinance for the new methodology to take effect. This would give people an opportunity not to be surprised by a major cost differential (I estimate approximately $500k for a typical West End home). 2. AVAILABILITY OF AH CREDITS - It is worth considering allowing cash-in-lieu mitigation as of right once this new methodology takes effect. There is not a sufficient amount of AH credits on the market to support even a fraction of the development in the pipeline under the new methodology. 3. INCENTIVE TO REMODEL – Consider how this change in methodology might incentivize property owners to remodel old undesirable structures instead of replace them. The fee savings will represent a major difference in remodeling vs replacing. Thank you for your consideration. Sincerely, Bill Guth Bill@wnggroup.com 970-300-2120 174 Hi Ben- Do these proposed changes apply to historical homes for redevelopment? From a preliminary review of the ordinance it seems like the city is trying to create an environment where new build is more advantageous than remodels, is that correct? Thank you, Tiffany TIFFANY PHIPPS ASPEN STARWOOD M 970.901.7613 WWW.ASPENSTARWOOD.COM TIFFANY@ASPENSTARWOOD.COM 312 ASPEN AIRPORT BUS CTR STE D ASPEN CO 81611 Hi Tiffany – It applies to all homes. Council removed the affordable housing exemption for designated properties in the last year or so. These proposed changes would apply to all single family and duplex properties. Hopefully, these changes might have the opposite effect of what you are suggesting. If you are remodeling a property short of demolition – you would only be on the hook for new gross floor area. But if you trigger demolition or fully scape and replace, you are on the hook for total gross floor area. Happy to talk further. Ben Thanks Ben- Unfortunately, I think these changes will have the opposite effect. Why would developers undertake a historical project which is more expensive to build, made more expensive with these changes, when they can tear down and build new for less. This also goes against the city’s sustainability goals encouraging folks to tear down and re- build vs heavily remodel. I would be happy to sit on a task force to help the city address the affordable housing issues while also keeping business/developers in mind so the town continues to provide all of those construction and related jobs. Thank you, Tiffany _____________________________________________________________________________________________ 175 Hi Ben, My name is Riley Warwick. I have been a full time Aspen resident for over 7 years and own property in the City of Aspen. I am writing you regarding the proposed changes to the City of Aspen affordable housing mitigation calculations. While I recognize the need to modify the calculation for affordable housing mitigation from time to time, I urge you to take into consideration the effect that an immediate change would have on homeowners planning a redevelopment of their property. It’s no surprise that Aspen real estate is a significant investment. Tacking on a surprise ~$500k cost for redevelopment will be a huge shock for many homeowners and can, in some instances, make the planned project unfeasible. I’m simply asking that you consider a phased implementation of the proposed changes so that prospective homeowners can make an informed decision and so recent purchasers aren’t shocked with a significant and unexpected development cost. Thank you in advance for your time. Best, Riley RILEY WARWICK BROKER ASSOCIATE DOUGLAS ELLIMAN REAL ESTATE SASLOVE & WARWICK #1 TEAM IN COLORADO #8 TEAM IN THE NATION OFFICE: 970.925.8810 MOBILE: 970.989.8157 Riley.Warwick@elliman.com 176 I am in agreement with Bill Guth and others regarding the proposed land use code changes relating to affordable housing mitigation calculations. Bill shared his comments with me. He expressed my concerns succinctly so rather than reinvent the wheel, I am echoing his comments below for your consideration. Please add this note to P&Z and Council’s packets. I generally understand the desire to change the calculation methodology, but have a few points for your consideration: 1. DELAYED IMPLEMENTATION - Homeowners, including myself, have recently purchased property with a reliance on the current calculation methodology to determine costs. It would be fair to provide a reasonable period of time (180 days?) after approval of this ordinance for the new methodology to take effect. This would give people an opportunity not to be surprised by a major cost differential (I estimate approximately $500k for a typical West End home). 2. AVAILABILITY OF AH CREDITS - It is worth considering allowing cash-in-lieu mitigation as of right once this new methodology takes effect. There is not a sufficient amount of AH credits on the market to support even a fraction of the development in the pipeline under the new methodology. 3. INCENTIVE TO REMODEL – Consider how this change in methodology might incentivize property owners to remodel old undesirable structures instead of replace them. The fee savings will represent a major difference in remodeling vs replacing. Thank you for your consideration. Sincerely, Mitch Kantor Mitchell A. Kantor 1039 E. Cooper Unit 2 Aspen, CO 81611 177 Ben, I would like to thank you for your efforts with respect to Aspen’s real estate community. I would like to share a concern about this enormous immediate fee increase regarding affordable housing and future development. It strikes me that the city should implement a phased plan as I fear an immediate increase might stifle much of the positive momentum going on currently and injure new emerging real estate investors / developement. I completely support the development of more affordable housing especially as Aspen becomes a more year- round community and requires a range of housing to support this. I am concerned about a potential side impact of this fee increase which may be to only allow extraordinarily wealthy to do real estate development. We might end up with affordable housing and then nothing but $20 million to $30 million homes. I know you are much more in the weeds than I am so appreciate your thoughts and feedback! Thanks again for all you do! Best, Darin Darin White Eydenberg Senior Client Partner / Real Estate and Private Equity Korn Ferry Office 212.984.9423 Mobile 917.275.3077 Darin.whiteeydenberg@kornferry.com 178 MEMORANDUM TO: Mayor Torre and Aspen City Council FROM: Ben Anderson, Principal Long-Range Planner THROUGH: Phillip Supino, Community Development Director MEMO DATE: July 7, 2021 MEETING DATE: July 12, 2021 RE: Affordable Housing – Land Use Code Coordination and Council Retreat Preparation. REQUEST OF COUNCIL: This Work Session continues previous discussions with Council on topics related to Growth Management, Affordable Housing mitigation, and the Land Use Code (LUC). Council provided previous direction to present possible Land Use Code amendments related to Single-Family and Duplex affordable housing mitigation and Multi-Family Replacement in response to Aspen’s current development context and in support of Council’s Affordable Housing Goals. Staff and Consultants from Design Workshop will present analysis and request direction from Council on several questions related to these two topics. By the conclusion of this evening’s work session, staff requests Council direction on the following questions: Single Family and Duplex Development: 1) Does Council support Elimination or Modification of the Credit for Existing Floor Area? 2)Does Council support Elimination or Modification of the Sub-Grade (basement) Exemption in the calculation of Affordable Housing mitigation? Multi-Family Replacement Requirements: 1)Does Council desire to facilitate the redevelopment of aging multi-family properties? A) To allow for the upgrade or replacement of buildings that are reaching the end of their lifespan? and/or B) To encourage the creation of required on-site affordable housing? If the answer to Question #1 is yes, to any degree: Exhibit C - Staff Memo 7/12/21 Work Session 179 Page 2 of 12 2) Does Council desire for staff to propose density changes for multi-family development in the RMF, R-6, and Lodge Zone Districts – where existing multi- family properties are primarily located? If so, does Council prefer that staff present proposed changes as a stand-alone response to multi-family replacement OR as an element of a comprehensive analysis of Part 700 (Zone Districts) in search of other opportunities in the promotion of affordable housing within the zoning regulations? 3) Does Council desire for staff to propose changes to the multi-family replacement requirements in GMQS, particularly related to the requirement of replacing the same number of units and net livable area and bedrooms? 4) Does Council desire for staff to propose changes for the on-site affordable housing requirements for additional Free Market units (particularly the requirement for both Floor Area and Units) in redevelopment scenarios? A general question: 5)What are Council’s views on the importance of RO (Resident Occupied as opposed to Category units) within the affordable housing inventory? Finally, staff suggests Council consider these questions, and other tangential issues related to affordable housing, growth management, and development trends in Aspen in advance of goal setting at the Council Retreat later this month. SUMMARY AND BACKGROUND: As part of an ongoing effort to better coordinate the Land Use Code in support of Council’s Affordable Housing Goals and in relationship to discussions with Council about the effectiveness of Aspen’s Growth Management Quota System in responding to the current development context, staff has continued to study and analyze a range of related topics. This Work Session focuses on potential responses in two specific areas: Single-family and Duplex AH mitigation and Multi-Family Replacement. In thinking about these issues in general, staff has been guided by the following assumptions: 1) While groundbreaking and successful over time, Aspen’s Land Use Code and Growth Management System does not respond to many realities within the current development context. The best evidence of this is the underutilization of the development allotments that are at the heart of the GMQS system – and the community sentiment that we are very much experiencing “growth” pressures – and the lack of new FTEs being created by the private sector as a result of commercial and lodge development. 180 Page 3 of 12 2)Aspen’s Growth Management system and Affordable Housing mitigation requirements have always been directly connected and understood together. The system relies on development to create affordable housing to mitigate its impacts to the local housing stock by creating new FTEs which require housing to be delivered to the community. As prominent development types have evolved, this direct connection has been diminished to some degree in that the development that is taking place is no longer providing the affordable housing that the system depends on and the community expects. 3) Affordable Housing that allows for a year-round, vibrant community and provides essential accommodation for the work force that keeps Aspen functioning, remains Aspen’s most pressing challenge. This has become even more true as housing affordability and availability have become an issue throughout the Roaring Fork and Colorado River Valley communities that have historically provided housing options for Aspen’s work force. 4) Aspen has for many years been an extreme example of real estate values, and construction and land costs. Additionally, over time, Aspen has become a real estate market dominated by vacation accommodations and unoccupied homes within our residential uses and zone districts. These trends have been true for many years but as the recently released Mountain Migration Report (Northwest Colorado Council of Governments, 2021) confirms, the last 18 months have witnessed a fully new scale. These new market dynamics have added additional complexity (which we do not yet fully understand) and importance to these efforts. In May of 2021, Council passed four Ordinances that were the first steps in responding to these issues. Most importantly, a new Fee-in-Lieu was adopted, reflecting actual development costs of affordable housing. Other improvements were made to the Affordable Housing Credits Program (additional incentives, alignment with APCHA, improved clarity) and to the GMQS chapter of the Land Use Code (Lodge mitigation requirements, improved clarity). Following passage of these changes, staff was given clear direction to keep moving forward on the larger topics of Growth Management and Affordable Housing. Work Session Agenda In the discussion this evening, Staff will present two distinct analyses with a separate set of questions for Council related to each. Based on the feedback from Council, staff is prepared to return to Council in the coming weeks with proposed amendments to the Land Use Code. Additionally, Council direction will inform the next step in the AH-LUC coordination process and the possibility of Council developing a specific goal in their upcoming retreat around these topics. First, staff will present potential changes to the way that single-family and duplex residential development provides AH mitigation. This discussion is in response to previous Council direction to present possible amendments in this area and will give focus 181 Page 4 of 12 to the current credit that is provided for existing floor area and the exemption that is granted for sub-grade (basement) areas in the calculation of AH mitigation. Second, Jessica Garrow and Eric Krohngold from Design Workshop (DW) will present the findings of their study on Multi-Family Replacement (MFR) requirements. DW was contracted to conduct redevelopment scenarios of existing multi-family properties through the lens of our current MFR requirements. Their analysis raises several questions that will require feedback and direction from Council. STAFF DISCUSSION: Single-Family and Duplex Development Affordable Housing Mitigation Two different AH mitigation calculations apply when the Land Use Code refers to Residential Development. First, and not part of the discussion in this work session, applies when a subdivision with multiple lots are created, a change of use takes place, or a new multi-family project is developed. These types of projects require the assignment of Growth Management Allotments and require that 30% of the project’s Floor Area (and 60 or 70% of the project’s units) be some balance of deed restricted affordable housing. This requirement could also be called inclusionary zoning in the broader planning world’s terminology. These projects require a Planning and Zoning review in the final determination of the mitigation requirements. The second calculation is typically assessed during the building permit review process. Today, this calculation is much more common than the scenario above. These projects take place on existing residential lots – either as new construction or the redevelopment of an existing home or homes. Different from the above scenario, the mitigation here has been understood as a much more direct impact fee, rather than a form of inclusionary zoning – calculating employee generation on a per square foot basis. No development Growth Management Allotments are required. When a new home is built or square footage is added to an existing home, a 2015 Employee Generation Study established the following mitigation requirements: .16 FTE per 1,000 square feet of Floor Area up to 4,500 sf. .36 FTE per 1,000 square feet of Floor Area over > 4,500 sf. Per the study, these figures were derived from an estimate of the full-time employees generated during the construction and life span of the property. For example, a new home, on a previously vacant lot, with a Floor Area of 5,500 square feet as measured per the LUC would have the following mitigation requirements: 4,500 / 1000 = 4.5 x .16 = .72 FTE 1000 / 1000 = 1 x .36 = .36 FTE .72 + .36 = 1.08 FTE 182 Page 5 of 12 While Floor Area is a complex calculation, the discussion in this Work Session focuses on two specific areas for consideration of change: Existing Floor Area Credit In redevelopment scenarios, the current code allows for the Floor Area of the existing home to be credited against the Floor Area for the new home. Additionally, in situations where a significant remodel is contemplated, only new, additional floor area is calculated. In both cases, the exemption of the existing floor area is credited, regardless of whether mitigation was ever assessed on the property. Figure 1: Comparison of a redevelopment project’s mitigation requirements – with and without the credit for existing floor area. The existing credit reduced the required mitigation by .32 FTE. AH mitigation for new residential development became a requirement in the mid-1980s. Depending on the circumstance and the code requirements in effect at the time of the project, on-site units, off-site units, fee-in-lieu, and accessory dwelling units have all been used in meeting mitigation requirements. Because of the change in code requirements over time and the variability of development history on residential properties, simply providing the credit was previously argued as a fair and straightforward response to this issue. Since 2015, approximately 325,000 square feet of existing floor area has been credited in redevelopment and major renovation scenarios. If not credited, the square footage would conservatively translate into 52 FTEs. It is also important to note that a similar credit for existing Floor Area for commercial redevelopment was eliminated from the LUC in a 2017 Amendment and the credit for existing Lodge units was recently eliminated by Ordinance No. 13, Series of 2021. 183 Page 6 of 12 Sub-Grade (Basement) Exemption Under current code Sub-Grade areas are effectively exempt from the contribution to both Allowable Floor Area and Affordable Housing Mitigation. In essence a calculation is made based the percentage of exposed wall area and applied to the gross floor area. As a consequence, unless a project purposely exposes a large percentage of the basement to the surface for light wells or other features or the property is on a slope that naturally exposes the basement, the vast majority of the gross floor area of basements is exempt. In the 2015 Employee Generation Study, sub-grade areas were discussed as having impacts – but it was determined these areas should remain exempt in consistency with the calculations for Allowable Floor Area in limiting the mass and scale of a house. Figure 2: Comparison showing the impacts to AH mitigation created by the Sub-Grade Exemption. In this example the exemption reduces the mitigation requirements by .78 FTE. Staff does not have a calculation to summarize the total amount of sub-grade area that has been exempted from mitigation over time, but the combination of real estate values on a square foot basis and the exemption of basements from Allowable Floor Area calculations has given significant incentive to maximize the size of these spaces. At this time, staff is proposing to include this area in AH mitigation requirements but is not proposing to limit these areas in relationship to calculation for Allowable Floor Area. 184 Page 7 of 12 Analysis Staff recognizes the scale of impact that these two changes would have on the current mitigation requirements for single-family and duplex development and re-development. In evaluating these potential impacts, staff analyzed six recent redevelopment projects. Of the six, only one (Project 3) is an outlier due to the size of the sub-grade area and the fact that it is technically two, detached dwellings. The others are representative of typical, single-family projects. What would these changes accomplish? Staff believes the changes requested by Council would be an effective response to Council and community concerns about affordable housing requirements for residential development and may generate the following outcomes: 1. A more fully responsive mechanism to mitigate for the development activity that is most shaping Aspen’s current “growth” context. This includes the continuing trend of increased demand and valuation of single-family and duplex homes, the scale and pace of scrape and replace redevelopment, and the growing role of Short-Term Rentals across our residential zone districts. 2. Assess a mitigation requirement for development that is clearly generating new demand for employees. 3. Create a more equitable mitigation requirement across different types of development – Commercial, Lodge, Residential. 4. Create additional demand within the Affordable Housing Credits program by increasing mitigation requirements which may be met through the purchase of credits from the market. Figure 3: The effect of eliminating both the credit for existing Floor Area and sub- grade exemption. 185 Page 8 of 12 The table shows that each project is different in how these changes would impact the eventual mitigation requirement. Some project financial pro formas would be impacted more significantly than others based on the size of the new home’s subgrade area or the size of the existing home (and credit for Floor Area) in relationship to the size of the new home. Table 1: Examples of recent, actual single-family development projects depicting the mitigation requirements under current code and the impacts of eliminating the credit for existing floor area and subgrade exemption. 186 Page 9 of 12 Figure 4. In spite of the significant increase that these changes would make to residential mitigation, the mitigation per square foot would remain well below that of mitigation required for a similarly sized commercial area. Public Outreach Typically, when ComDev is proposing an amendment to the LUC, we have a public outreach plan in place to gather input and comment in shaping the amendment. On this set of topics however, staff does not believe that any level of public outreach will move the needle in support of these proposals. In staff’s view, removing these long-standing reductions in the required mitigation for residential projects will be unpopular within the development community – and particularly for those that are contemplating redevelopment projects. In thinking about these proposed changes and the nature of public outreach, it should be noted that all required residential mitigation can be deferred if the owner is a full-time, locally working resident under APCHA Guidelines. 2015 Aspen Residential Employment Generation Study Employment generation studies are essential to the foundation of Aspen’s GMQS system in that they establish the measurable impacts of new construction. These studies set the clear nexus between a square foot of construction and the demand for employees that are being created by the new space. The RRC (consultant) study is built on the assumption that it is measuring the new impacts of residential development for two specific activities – construction and future maintenance and operations. While it does discuss existing Floor Area in redevelopment contexts, the report is most applicable to new development on an established vacant lot. The report also briefly references the inclusion of sub-grade area. On both topics, the 187 Page 10 of 12 report (Credit and Exemption) is responding to these reductions in mitigation as established elements in Aspen’s LUC – rather than factors that are driving the impacts of employee generation. What is crystal clear though is that the report establishes a mitigation requirement per 1,000 square feet of residential construction. Staff raises this topic because of the importance of our mitigation requirements matching the generation studies behind them. If Council were to implement the elimination of the existing floor area credit and sub-grade exemption, staff recommends an update to the generation study to reflect the new stipulations in the LUC and more fully understand the impact of redevelopment scenarios. Multi-Family Replacement Requirements Multi-Family Replacement (MFR) requirements were instituted in the late 1980’s as it was becoming clear to the community that aging, smaller units were an important free-market rental and ownership housing option for working locals. In redevelopment scenarios, formerly “affordable” units were now out of reach for most locals. The requirements directed that if multi-family units were redeveloped, a percentage of the new units had to be deed-restricted affordable – either Resident Occupied (RO) or Category. The requirements had two purposes: 1) to discourage redevelopment of these multi-family properties into a higher-end, less attainable product; and, 2) if they did redevelop, the community would gain deed-restricted affordable units. In general, the effect of these regulations has translated into most of these multi-family developments remaining as built, and not pursued as redevelopment opportunities. Why evaluate Multi-Family Replacement now? 1) Some multi-family developments are beginning to age beyond a typical building lifespan. 2) Real estate trends have taken many of these free-market units beyond the range of “affordability” for working locals. 3) While staff is working on the data to evaluate the scale of this trend, it has been observed that many of these units have been converted to short-term rentals. 4) These multi-family projects, if not redeveloped, do not generate opportunities for the creation of affordable housing units. 5) These properties generally occupy areas of the City that are zoned to accommodate density necessary for viable affordable housing, promote a walkable and transit-served community, and reduce resource consumption. 6) Community perspectives on the preference for RO units (as opposed to Category units) seem to be shifting as a consequence of recent trends in real estate valuation and the inability of the free-market to provide missing middle housing to working locals who qualify out of the APCHA system. 188 Page 11 of 12 Design Workshop Exhibit A is a Memorandum from a consultant team at Design Workshop that presents the following: 1) A review of current code requirements 2) Interviews with local stakeholders about the MFR requirements 3) Redevelopment Scenarios that apply the MFR requirements to four actual Multi- Family properties. 4) Analysis of the intersection of MFR requirements, zone district limitations, new development cost realities, and the viability of redevelopment projects. 5) Recommendations about possible improvements and areas for further analysis. In an effort to avoid redundancy, staff recommends Council review the contents of the Memorandum. Design Workshop will present a summary of the findings of the Memorandum at the Work Session and staff will request direction from Council in response to questions raised by this analysis To restate from the first part of this memo, these are the questions that staff will use in asking for direction from Council on Multi-Family Replacement: 1) Does Council desire to facilitate the redevelopment of aging multi-family properties? A) To allow for the upgrade or replacement of buildings that are reaching the end of their lifespan? and/or B) To encourage the creation of required associated affordable housing? If the answer to Question #1 is yes, to any degree: 2) Does Council desire for staff to propose density changes for multi-family development in the RMF, R-6, and Lodge Zone Districts – where existing multi- family properties are primarily located? If so, does Council prefer that staff present proposed changes as a stand-alone response to multi-family replacement OR as an element of a comprehensive analysis of Part 700 (Zone Districts) in search of other opportunities in the promotion of affordable housing. 3) Does Council desire for staff to propose changes to the multi-family replacement requirements in GMQS (100% - RO, 50% - Cat. 4), particularly related to the requirement of replacing the same number of units and net livable area and bedrooms? 189 Page 12 of 12 4) Does Council desire for staff to propose changes for the affordable housing requirements for additional Free Market units (particularly the requirement for both Floor Area and Units) in redevelopment scenarios? A general question: 5) What are Council’s views on the importance of RO (Resident Occupied as opposed to Category units) within the affordable housing inventory? CONCLUSION AND NEXT STEPS: First, Based on Council direction this evening, staff is prepared to pursue LUC amendments on the Single-Family and Duplex mitigation topics beginning as soon as August. Staff would present a set of options for Council’s consideration as part of the Policy Resolution review, followed by Ordinances to formally Amend the LUC. On the Multi-Family Replacement topic, staff will need to refine potential code responses using the development scenario tool that Design Workshop has created. The range of potential responses is far greater on this topic and we will want to get it right. Staff estimates and three to six-month timeline depending on Council direction. Also, if Council desires to work on this topic, staff recommends a robust stakeholder and public outreach effort on this set of issues. Finally, ComDev staff will be prepared to discuss a full range of affordable housing and growth management topics during Council discussion at their Retreat; July 19 and 20. Should Council desire to establish a new goal(s) related to Affordable Housing and / or GMQS, staff will be present to help Council align desired outcomes with possible approaches to create achievable goal language. FINANCIAL IMPACTS: To be determined, depending on project scope. ENVIRONMENTAL IMPACTS: To be determined, depending on project scope. ALTERNATIVES: N/A RECOMMENDATIONS: N/A CITY MANAGER COMMENTS: EXHIBITS: A - Design Workshop Memorandum on Development Scenario Analysis B - Summary of Current Multi-Family Replacement Requirements 190 MEMORANDUM TO: Mayor Torre and Aspen City Council FROM: Ben Anderson, Principal Long-Range Planner THROUGH: Phillip Supino, Community Development Director MEMO DATE: November 3, 2021 MEETING DATE: November 9, 2021 RE: Resolution No. 106, Series of 2021 – Policy Resolution Proposed Land Use Code Changes Calculation of Single-Family and Duplex Residential Affordable Housing Mitigation REQUEST OF COUNCIL: At a Work Session on July 12, 2021, Council unanimously directed staff to develop amendments to the Land Use Code (LUC) that would have the effect of increasing required affordable housing mitigation for single-family and duplex residential development. Specifically, the changes would eliminate the credit for existing floor area and use a gross, rather than net Floor Area calculation when assessing affordable housing mitigation requirements on these types of development (and redevelopment). Resolution No. 106, Series of 2021 is a Policy Resolution that if approved, would begin the formal amendment process to the LUC. First and Second Readings of an Ordinance approving these amendments would come before Council on November 23rd and December 14th. Staff recommends Council approve Policy Resolution No. 106, Series of 2021. SUMMARY AND BACKGROUND: As part of an ongoing effort to better coordinate the Land Use Code in support of Council’s Affordable Housing Goals and in relationship to discussions with Council about the effectiveness of Aspen’s Growth Management Quota System in responding to the current development context, staff has continued to study and analyze a range of related topics. Staff has held several Work Sessions with Council over the last 18 months toward better understanding the issues and in thinking about possible improvements. As part of this work, Council passed a series of targeted code amendments in May of 2021 – including an update to the Affordable Housing Mitigation Fee-In-Lieu The relationship of Growth Management to Affordable Housing Mitigation has long been a part of Aspen’s system of housing the employees generated by different development types. The specific mechanisms within the LUC that have defined this relationship over 191 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 2 of 10 time have been changed and adjusted numerous times to respond to shifting dynamics in Aspen’s development context. It has become apparent through analysis of our Growth Management Allotment system and issued building permits, that residential development and redevelopment is now the dominant contributor to both the real impacts and perceived pressures that growth creates. Overtime, technical changes to the LUC have had the effect of reducing the mitigation requirements for single-family and residential development and redevelopment in a way that has not been applied to commercial, lodge and multi-family residential. In the current context, while the construction and other employee generation impacts of single-family and duplex residences has intensified, the mitigation requirements have not kept pace. The current mitigation requirements for single-family and duplex development are based on a 2015 study by research consultants, RRC. While staff remains confident in the fundamentals of this study – the application and intersection of the findings of this study with other calculation methodologies (particularly Floor Area) has had the effect of significantly reducing required mitigation. The proposed code changes considered by this Policy Resolution would do two things in response: 1. Remove the credit for existing Floor Area from the calculation of Affordable Housing Mitigation in redevelopment scenarios when demolition occurs. 2. Use a gross Floor Area calculation, rather than a net calculation, in determining mitigation requirements. The gross Floor Area calculation would include all sub- grade areas, garages, and circulation features for the purposes of AH mitigation only. This new methodology would not affect the calculation of allowable floor area in meeting Zone District dimensional requirements, and residential development rights would be unchanged. STAFF DISCUSSION: Single-Family and Duplex Development Affordable Housing Mitigation Two different AH mitigation calculations apply when the Land Use Code refers to Residential Development. First, and not part of these proposed amendments applies when a subdivision with multiple lots is created, a change of use takes place, or a new multi-family project is developed. These types of projects require the assignment of Growth Management Allotments and require that 30% of the project’s Floor Area (and 60 or 70% of the project’s units) be some balance of deed restricted affordable housing. This requirement could also be called inclusionary zoning in the broader planning world’s terminology. These projects require a Planning and Zoning review in the final determination of the mitigation requirements. 192 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 3 of 10 The second calculation is typically assessed during the building permit review process. Today, this calculation is much more common than the scenario described above. These projects take place on existing residential lots – either as new construction or the redevelopment of an existing home or homes. Different from the above scenario, the mitigation here has been understood as a much more direct impact fee, rather than a form of inclusionary zoning – calculating employee generation on a per square foot basis. No development Growth Management Allotments are required. When a new home is built or square footage is added to an existing home, a 2015 Employee Generation Study established the following mitigation requirements: .16 FTE per 1,000 square feet of Floor Area up to 4,500 sf. .36 FTE per 1,000 square feet of Floor Area over > 4,500 sf. Per the study, these figures were derived from an estimate of the full-time employees generated during the construction and life span of the property. For example, a new home, on a previously vacant lot, with a Floor Area of 5,500 square feet as measured per the LUC would have the following mitigation requirements: 4,500 / 1000 = 4.5 x .16 = .72 FTE 1000 / 1000 = 1 x .36 = .36 FTE .72 + .36 = 1.08 FTE Existing Floor Area Credit In redevelopment scenarios, the current code allows for the Floor Area of the existing home to be credited against the Floor Area for the new home. Additionally, in situations where a significant remodel that triggers demolition is contemplated, only new, additional floor area is calculated. In both cases, the exemption of the existing floor area is credited, regardless of whether mitigation was ever assessed on the property and regardless of whether the existing Floor Area is renovated or scraped and replaced. AH mitigation for new residential development became a requirement in the mid-1980s. Depending on the circumstance and the code requirements in effect at the time of the project, on-site units, off-site units, fee-in-lieu, and accessory dwelling units have all been used in meeting mitigation requirements. Because of the change in code requirements over time and the variability of development history on residential properties, simply providing the credit was previously argued as a fair and straightforward response to this issue. The credit for existing residential floor area, like the previously eliminated credits for existing commercial and lodge development, seems to have its origins in thinking about growth management that came to define the system – that new development is what drives growth. Long-standing, existing development should be exempt, and a new development that mitigates – has provided mitigation forever. Today – it is redevelopment of properties that is driving the growth that the community is experiencing. The whole concept of a credit is undermined by the real impacts to employee generation that redevelopment scenarios are creating. 193 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 4 of 10 Since 2015, approximately 325,000 square feet of existing floor area has been credited in redevelopment and major renovation scenarios 1. If not credited, the square footage would conservatively translate into 52 FTEs (or approximately $19.5M of mitigation value based on Cat. 2 FIL). It is also important to note that a similar credit for existing Floor Area for commercial redevelopment was eliminated from the LUC in a 2017 Amendment and the credit for existing Lodge units was recently eliminated by Ordinance No. 13, Series of 2021. Sub-Grade (Basement) and other Exemptions from gross Floor Area Under current code Sub-Grade areas (and other areas, like garages and circulation elements) are effectively exempt from the contribution to both Allowable Floor Area and Affordable Housing Mitigation. In essence, a calculation is made based on the percentage of exposed wall area and applied to the gross floor area. As a consequence, unless a project purposely exposes a large percentage of the basement to the surface for light wells or other features, or the property is on a slope that naturally exposes the basement, the vast majority of the gross floor area of basements is exempt. In the 2015 Employee Generation Study, sub-grade and other exempt areas were discussed as having impacts – but it was determined these areas should remain exempt in consistency with the calculations for Allowable Floor Area in limiting the mass and scale of a house. Figure 1: Comparison of a redevelopment project’s mitigation requirements – with and without the credit for existing floor area. The existing credit reduced the required mitigation by .32 FTE. 1 Calculated though analysis of a spreadsheet that documents impact fees used in zoning review of issued building permits 194 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 5 of 10 Figure 2: Comparison showing the impacts to AH mitigation created by the Sub-Grade Exemption. In this example, the exemption reduces the mitigation requirements by .78 FTE. Staff does not have a calculation to summarize the total amount of sub-grade area that has been exempted from mitigation over time, but the combination of real estate values on a square foot basis and the exemption of basements from Allowable Floor Area calculations has given significant incentive to maximize the size of these spaces. At this Figure 3: The effect of eliminating both the credit for existing Floor Area and sub-grade exemption. 195 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 6 of 10 time, staff is proposing to include this area in AH mitigation requirements but is not proposing to limit these areas in relationship to calculation for Allowable Floor Area. Analysis Staff recognizes the scale of impact that these two changes would have on the current mitigation requirements for single-family and duplex development and re-development. In evaluating these potential impacts, staff analyzed six recent redevelopment projects (See Table 1 on page 7). Of the six, only one (Project 3) is an outlier due to the size of the sub-grade area and the fact that it is technically two, detached dwellings. The others are representative of typical, single-family projects. What would these changes accomplish? Staff believes the changes pursued by these amendments would be an effective response to Council and community concerns about affordable housing requirements for residential development and may generate the following outcomes: 1. A more fully responsive mechanism to mitigate for the development activity that is most shaping Aspen’s current “growth” context. This includes the continuing trend of increased demand and valuation of single-family and duplex homes, the scale and pace of scrape and replace redevelopment, and the growing role of Short-Term Rentals across our residential zone districts. 2. Assess a mitigation requirement for development that is clearly generating new demand for employees. 3. Create a more equitable mitigation requirement across different types of development – Commercial, Lodge, Residential. 4. Create additional demand within the Affordable Housing Credits program by increasing mitigation requirements which may be met through the purchase of credits from the market. This may result in the development of more AH units by the private sector. 196 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 7 of 10 Table 1: Examples of recent, actual single-family development projects depicting the mitigation requirements under current code and the impacts of eliminating the credit for existing floor area and subgrade exemption. The table shows that each project is different in how these changes would impact the eventual mitigation requirement. Some project financial proformas would be impacted more significantly than others based on the size of the new home’s subgrade area or the size of the existing home (and credit for Floor Area) in relationship to the size of the new home. 197 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 8 of 10 Figure 4. In spite of the significant increase that these changes would make to residential mitigation, the mitigation per square foot would remain well below that of mitigation required for a similarly sized commercial area. Public Outreach Typically, when ComDev is proposing an amendment to the LUC, we have a public outreach plan in place to gather input and comment in shaping the amendment. On this set of topics however, staff does not believe that traditional public outreach will move the needle in support of these proposals. In staff’s view, removing these long-standing reductions in the required mitigation for residential projects will be unpopular within the development community – and particularly for those that are contemplating redevelopment projects. On the other hand, like many other requirements of the of the LUC that translate into the development of affordable housing – those that may benefit from an additional housing unit being built or those that may generally support additional affordable housing may not be fully engaged in technical aspects of the LUC. Additionally, the context surrounding COVID has made comprehensive outreach efforts challenging. Staff has posted the process for these potential amendments in two recent editions of the Community Development Newsletter and will continue to do so through Second Reading. Additionally, staff, should Council adopt Resolution No. 106, will conduct direct outreach to members of the development and design community explaining the proposed changes ahead of Second Reading. Any feedback received from this outreach will be summarized for Council consideration. The public will also have an opportunity to provide comment with Planning and Zoning Commission as that body considers in a public hearing whether to provide formal recommendation in support of the proposed amendments. 198 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 9 of 10 In thinking about these proposed changes and the nature of public outreach, it should be noted that all required residential mitigation can be deferred if the owner is a full-time, locally working resident under APCHA Guidelines. 2015 Aspen Residential Employment Generation Study Employment generation studies are essential to the foundation of Aspen’s GMQS system in that they establish the measurable impacts of development. These studies set the clear nexus between a square foot of construction and the demand for employees that are being created by the new development. The RRC (consultant) study is built on the assumption that it is measuring the new impacts of residential development for two specific activities – construction and future maintenance and operations. The current report is applicable to new development on an established vacant lot and redevelopment scenarios. The report also briefly references the inclusion of sub-grade area. On both topics, the report (Credit and Exemption) is responding to these reductions in mitigation as established elements in Aspen’s LUC – rather than factors that are driving the impacts of employee generation. RRC has provided recent (October 2021) evaluation of the 2015 employee generation study as it relates to these specific code changes and per that evaluation, staff does not believe that the proposed amendments would in any way undermine the basis of the study Staff raises this topic because of the importance of our mitigation requirements matching the generation studies behind them. If Council were to implement the elimination of the existing floor area credit and utilize gross Floor Area, staff recommends an update to the generation study in 2022 to reflect the new stipulations in the LUC and more fully understand the impact of redevelopment scenarios. This study could additionally be expanded to incorporate analysis of short-term rentals and their relationship to residential uses and redevelopment in evaluating employee generation impacts. CONCLUSION AND NEXT STEPS: The proposed Amendments under consideration in this Policy Resolution would, in staff’s view, be a positive step in further recognizing the impacts of single-family and duplex development and redevelopment on employee generation and the demand for affordable housing. While impactful, the code amendments necessary to achieve this change are minimal in scope and complexity and do not alter underlying development rights. If Council approves Resolution No. 106, the following dates have been identified for the next steps in the review of these amendments: November 16th – Review with P&Z for a recommendation November 23rd – First Reading of Ordinance with Council December 14th – Second Reading of Ordinance with Council 199 Staff Memo, Policy Resolution No. 106, Series of 2021 Page 10 of 10 FINANCIAL IMPACTS: ENVIRONMENTAL IMPACTS: ALTERNATIVES: Maintain status quo and not pursue proposed amendments – or consider other alternatives per Council direction. RECOMMENDATIONS: Staff recommends Council approve Policy Resolution No. 106, Series of 2021. CITY MANAGER COMMENTS: EXHIBITS: None 200 Amendment to Land Use Code - Ben - Page 1 of 1 FILER Risa Rushmore risa.rushmore@cityofaspen.com FILING FOR Aspen Times Columns Wide:1 Ad Class:Legals INTERIM AD DRAFT T his i s t h e pro o f of y ou r a d s ch ed u l e d t o r un i n As pe n Ti m es on th e d at e s i n d i c a t ed b e l o w. I f c h a n ge s a r e ne ed ed , p l ea se co nt a ct us pr i o r to d ea dlin e a t (9 70 ) 9 25 -3 41 4. Notice ID: R1FntMCrBguc6v8yOKn6 | Proof Updated: Nov. 19, 2021 at 11:44am MST Notice Name: Amendment to Land Use Code - Ben This is not an invoice. Below is an estimated price, and it is subject to change. You will receive an invoice with the final price upon invoice creation by the publisher. 11/25/2021: Other 30.44 Affidavit Fee 4.00 Subtotal $34.44 Tax %0.00 Total $34.44 201 EXHIBIT H – REVIEW CRITERIA 26.310.050 Amendments to the Land Use Code Standards of review - Adoption. In reviewing an application to amend the text of this Title, per Section 26.310.020(B)(3), Step Three – Public Hearing before City Council, the City Council shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this Title. Staff Response: The term “floor area” is used in many different contexts and with different application as one moves through the Land Use Code. For many years “Floor Area” has been a single calculation that is used for “floor area ratio” (FAR), “allowable floor area” and affordable housing mitigation requirements. This calculation is a “net” floor area that includes exemptions for basements, garages, vertical circulation, etc. and has the effect of significantly reducing the calculated size of a hous e – from the “gross” calculation of floor area. To implement the policy change of utilizing a gross calculation for affordable housing mitigation, changes needed to be made across three chapters of the code to bring consistency to the topic. Staff finds this criterion to be met. B. Whether the proposed amendment achieves the policy, community goal, or objective cited as reasons for the code amendment or achieves other public policy objectives. Staff Response: The purpose statement of Chapter 26.470 – Growth Management Quota System (GMQS) is as follows: The purposes of this Chapter are to: (a) implement the goals and policies for the City and the Aspen Area Community Plan; (b) ensure that new growth occurs in an orderly and efficient manner in the City; (c) ensure sufficient public facilities are present to accommodate new growth and development; (d) ensure that new growth and development is designed and constructed to maintain the character and ambiance of the City; (e) ensure the presence of an adequate supply of affordable housing, businesses and events that serve the local, permanent community and the area's tourist base; (f) ensure that growth does not overextend the community's ability to provide support services, including employee housing, traffic control and parking; and (g) ensure that the resulting employees generated and impacts created by development and redevelopment are mitigated by said development and redevelopment. Staff finds that the proposed code changes are a direct response to (a), (e), (f), and (g) stated above. Staff finds this criterion to be met. C. Whether the proposed amendment is compatible with the community character of the City and is in harmony with the public interest and the purpose and intent of this Title. Staff Response: Per previous discussion with City Council, changes of the type being proposed are consistent with the Aspen Area Community Plan and with the intent and purpose of the Growth Management Quota System. The proposed changes are necessary to reflect the nature of the current development context in the City of Aspen, where single-family and duplex redevelopment are driving growth impacts and are currently under mitigating for their impacts to employee generation. Staff finds this criterion to be met. 202 203 MEMORANDUM TO:Mayor Torre and Aspen City Council FROM:Phillip Supino, Community Development Director THROUGH:Jim True, City Attorney MEMO DATE:December 9, 2021 MEETING DATE:December 14, 2021 RE:Ordinance 26, Series of 2021 – Short-Term Rental Regulations REQUEST OF COUNCIL: Staff requests Council consider Ordinance 26 at the December 14th regular meeting. SUMMARY AND BACKGROUND: At a Work Session on November 16, 2021, Council directed staff to develop amendments to the Land Use Code (LUC) effecting short-term rental regulations. At the December 7, 2021 Council meeting, Council approved Resolution No. 124, Series of 2021, a Policy Resolution to begin the formal amendment process to the LUC. Council also passed Ordinance No. 26, Series of 2021 on first reading. The draft ordinance would amend the LUC to achieve Council’s objectives for immediate changes to short-term rental regulations. DISCUSSION: The content and effect of the draft ordinance will deliver on Council’s goals as stated in the November 16th work session. Those measures are viewed by staff as temporary – designed to limit further growth of the STR market while permitting its operational status quo through the ski season. The measures that would be put in place by the draft ordinance will provide Council time to explore options with staff and the public without time pressure. Ordinance 27, Series of 2021, passed by Council in special meeting on Wednesday December 8th, extended 2021 vacation rental permits to September 30, 2022 and placed a moratorium on the issuance of new permits beginning on December 9 th. While that legislation is in place, staff recommends Council continue with the process of adopting Ordinance 26. CONCLUSION AND NEXT STEPS: The proposed amendments in Ordinance 26 would, in staff’s view, achieve Council’s stated objectives from the November 16th work session and provide Council the space to consider revised regulations in 2022. While impactful, insofar as the amendments would 204 Staff Memo Ordinance No. 26, Series of 2021 Page 2 of 2 pause the issuance of new STR permits, the code amendments are minimal in scope and complexity and do not alter the status quo of the STR market in town. FINANCIAL IMPACTS:N/A ENVIRONMENTAL IMPACTS: N/A ALTERNATIVES:Maintain status quo and not pursue proposed amendments – or consider other alternatives per Council direction. RECOMMENDATIONS:Staff recommends Council approve Ordinance No. 26, Series of 2021. CITY MANAGER COMMENTS: 205 Ordinance No. 26, Series of 2021 Page 1 of 3 ORDINANCE NO. 26 SERIES OF 2021 AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING THE CITY OF ASPEN LAND USE CODE VACATION RENTAL REGULATIONS. WHEREAS, the City of Aspen (the “City”) is a legally and regularly created, established, organized and existing municipal corporation under the provisions of Article XX of the Constitution of the State of Colorado and the home rule charter of the City (the “Charter”); and WHEREAS, the City of Aspen currently regulates land uses within the City limits in accordance with Chapter 26.104 et seq.of the Aspen Municipal Code pursuant to its Home Rule Constitutional authority and the Local Government Land Use Control Enabling Act of 1974, as amended, §§29-20-101, et seq. C.R.S; and WHEREAS, the zoning and land use powers conferred upon the City by the State of Colorado as a Home Rule Municipality empower the City to manage land use to ensure the public health, safety, and welfare; and, WHEREAS, the rapid proliferation of short-term rentals in Aspen’s neighborhoods, Commercial, and Lodge zone districts has altered the orderly mix of land uses and balance of community needs described in the Aspen Area Community Plan and City of Aspen Land Use Code; and, WHEREAS, the City’s current permitting system for short-term rentals does not provide the City or community with sufficient data or context to fully understand the location, extent, operations, and impacts of short-term rentals to inform policy and regulatory decision making; and, WHEREAS, it is evident that the short-term rental market in its current form and regulatory structure has impacted the actual and perceived value of real estate in Aspen, incentivizing new development dynamics, which require analysis to understand, and a regulatory response to align with City policies in the Aspen Area Community Plan; and, WHEREAS, the extent and operation of short-term rentals in the City is not consistent with community goals and vision as expressed by the 2012 Aspen Area Community Plan, including: “We must pursue more aggressive measures to ensure the needs of the community are met, and to preserve our unique community character.” (p. 20); and “Achieve sustainable growth practices to ensure long-term vitality and stability of our community and diverse visitor-based economy.” (p. 24); and “Ensure there is an ongoing economic analysis of the Aspen Area economy that uses a consistent metric and provides broad community understanding of the state of the economy” (p. 24); and, “Study and quantify all impacts that are directly related to all types of development” (p. 27); and, “Use Transportation Demand Management tools to accommodate additional person trips in the Aspen Area” (p. 35); and, 206 Ordinance No. 26, Series of 2021 Page 2 of 3 “Minimize the adverse impacts of development on the valley-wide transportation system that occur during economic booms and periods of intense construction activity” (p. 36); and. “Track trends in the housing inventory and job generation to better inform public policy discussions” (p. 42); and, “Ensure that the City Land Use Code results in development that reflects our architectural heritage in terms of site coverage, mass, scale, density and a diversity of heights, in order to: “Create certainty in land development. “Prioritize maintaining our mountain views. “Protect our small town community character and historical heritage. “Limit consumption of energy and building materials. “Limit the burden on public infrastructure and ongoing public operating costs. “Reduce short- and long-term job generation impacts, such as traffic congestion and demand for affordable housing.” (p. 26) WHEREAS, the City Council and the Community Development Department require a period of time in which to review all existing land use codes, regulations, and permitting and licensing procedures as they affect short-term rentals in the City of Aspen to ensure that short-term rental uses are consistent with the Aspen Area Community Plan, the Land Use Code, and best practices for regulating a short-term rental market; and WHEREAS, the City Council desires that the staff of the Community Development Department conduct a thorough analysis and assessment of the Land Use Code and regulations affecting short-term rentals in the City of Aspen to ensure consistency with the Aspen Area Community Plan; and WHEREAS, a freeze on the issuance of new short-term rental permits and the extension of existing short-term rental permits will enable a reasoned discussion and consideration of desired amendments to the Land Use Code without creating a rush of development applications and the related impacts upon the community; and WHEREAS, the Community Development Department may need assistance from third party consultants to complete the task of analyzing the current Land Use Code and regulations as contemplated herein, the City Council hereby directs the City Manager to authorize the expenditure of City funds to engage one or more consultants to assist the Community Development Department; and NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1: Code Amendment Objective: The objective of the proposed Land Use Code amendment is to extend existing Vacation Rental Permits but cease the issuance of addition permits while the program is re-visited. 207 Ordinance No. 26, Series of 2021 Page 3 of 3 Section 2: The following subsection (2) of the City of Aspen Land Use Code Section 26.575.220 (e) is hereby deleted in its entirety: (2) Annual permit renewal.A new application for a Vacation Rental Permit shall be submitted each calendar year in accordance with the application requirements listed in Section 26.575.220(e)(1). and replaced with the following: (2)Permit Duration. Each Vacation Rental Permit issued as of December 8, 2021, for the year 2021, is hereby extended for a period to and including September 30, 2022. During this period, the Owner of such permit must maintain a valid business license issued pursuant to Chapter 14.08 of the Aspen Municipal Code. All licenses issued pursuant to Section 26.575.220 prior to December 8, 2021, are site specific and may not be transferred to another property. Section 3: Cityof Aspen Land Use Code Section 26.575.220 (e) is hereby amended to add the following: (3) 2022 permits.Permits for the year 2022, issued prior to January 14, 2022 shall terminate on January 15, 2022. No new permits shall be issued during the year of 2022 following January 14, 2022 and 2021 licenses extended pursuant to subsection (2) above shall be deemed terminated as of that September 30, 2022, unless this Section 26.575.220 (e) is amended by ordinance of the City Council. Section 4: Any scrivener’s errors contained in the code amendments herein, including but not limited to mislabeled subsections or titles, may be corrected administratively following adoption of the Ordinance. Section 5: Effect Upon Existing Litigation. This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceedingnow pendingunder or byvirtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such priorordinances. Section 6: Severability. If anysection, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct andindependentprovisionandshallnot affectthe validityof the remainingportions thereof. 208 Ordinance No. 26, Series of 2021 Page 4 of 3 Section 9.Publication. The City Clerk is directed that publication of this ordinance shall be made as soon as practical and no later than ten (10) days following final passage. INTRODUCED AND READ as provided by law by the City Council of the City of Aspen on the 7th day of December 2021. _______________________ Torre, Mayor ATTEST: _______________________ Nicole Henning, City Clerk FINALLY adopted, passed and approved this _______ day of ______________, 2021. _______________________ Torre, Mayor ATTEST: _______________________ Nicole Henning, City Clerk Approved as toform: ________________________ James R. True, City Attorney 209