HomeMy WebLinkAboutagenda.council.regular.20241203AGENDA
CITY COUNCIL REGULAR
MEETING
December 3, 2024
5:00 PM, City Council Chambers
427 Rio Grande Place, Aspen
I.Call to Order
II.Roll Call
III.Scheduled Public Appearances
IV.Citizens Comments & Petitions
V.Special Orders of the Day
VI.Consent Calendar
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(Time for any citizen to address Council on issues NOT scheduled for a public hearing.
Please limit your comments to 3 minutes)
a) Councilmembers' and Mayor's Comments b) Agenda Amendments c) City Manager's
Comments d) Board Reports
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VIA.Resolution #114, Series of 2024 - Radio Replacement Capital Project
VIB.Resolution #134, Series of 2024 - U.S. Bureau of Reclamation Federal Grant –
Ruedi Hydroelectric Powerplant Upgrades and Additions
VIC.Draft Minutes of November 12, 2024
VII.Notice of Call-Up
VIII.First Reading of Ordinances
IX.Public Hearings
X.Action Items
XB.Resolution #138, Series of 2024 - 2025 Regional, State and Federal Policy Agenda
XC.Resolution #140, Series of 2024 - Required Affordable Housing Q3 Fee-in-lieu
Request
XD.Resolution #142, Series of 2024 - Settlement Agreement Concerning 531 W. Gillespie
XE.Resolution #143, Series of 2024 - Settlement Agreement for 232 McSkimming Road
(These matters may be adopted together by a single motion)
Memo_for_contract_preapproval(1).docx
Resolultion__114_Radios_Purchase (1).doc
Supply Procurement 2024 - redline clean version.doc.pdf
Exhibit B - Motorola CO PA Executed.pdf
Council_memo_-_Federal_Grant_Official_Resolution_-
_Ruedi_Hydroelectric_Powerplant_Upgrades_Final.docx
Exhibit A - Resolution 134 Series of 2024 - Ruedi Hydroelectric Powerplant USBR
Grant.doc
Exhibit B - Federal Grant Application for Ruedi Hydroelectric Powerplant Upgrades
and Additions.pdf
cc.min.111224.docx
City Council memo.docx
resolution.council.138-24.docx
COA-Fall2024PolicyAgenda-112524.pdf
Memo_Q3 Fee in Lieu Request.pdf
Council Resolution #140, Series of 2024.pdf
Exhibit A – Title 26 Policy 01-2024 - Expedited provision of required affordable
housing via fee-in-lieu.pdf
Exhibit B – FIL Request Letters.pdf
Memo_re_Resolution 142, Series of 2024.pdf
Reso #142, 2024 - Settlement Agreement for 531 W. Gillespie.pdf
Ex. A- JSC Demo Settlement Agreement.pdf
Memo_re_Resolution 143, Series of 2024.pdf
Reso #143, 2024 - Settlement Agreement for 232 McSkimming Road.pdf
Ex A. Settlement Agreement RE 232 McSkimming.pdf
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XI.Executive Session
XII.Adjournment
Pursuant to C.R.S. Section 24-6-402 (4)(a) The purchase, acquisition, lease,
transfer, or sale of any real, personal, or other property interest; (4)(b) Conferences
with an attorney for the local public body for the purposes of receiving legal advice
on specific legal questions. (4)(e) Determining positions relative to matters that
may be subject to negotiations; developing strategy for negotiations; and
instructing negotiators.
The specific items of discussion involve the following:
1) Guerdon, LLC Settlement Agreement delinquency
2) Yogi’s, LLC, 455 Rio Grande Place, lease delinquency
3) Holy Cross Franchise Agreement negotiation update
4) Review and direction to negotiators regarding responses to the municipal
judge RFP
(5)(f) Personnel
City Manager Review
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3
MEMORANDUM
TO:Mayor and City Council
FROM:Linda Consuegra, Assistant Chief
THROUGH:Kim Ferber, Police Chief
MEMO DATE:November 14, 2024
MEETING DATE:December 3, 2024
RE:Resolution #114 Series of 2024 – Radio Replacement Capital
Project
_____________________________________________________________________
REQUEST OF COUNCIL:Staff requests that council approve Resolution #114
(Attachment “A”), a contract award to Motorola Inc. for $301,868 to purchase 44 handheld
radios and 18 remote-mount vehicle radios to replace our existing radios.
SUMMARY AND BACKGROUND:The seven-year planned radio replacement was part
of the proposed 2025 capital budget. Pitkin County Telecommunications negotiated
pricing and received a quote through Motorola Inc. for all law enforcement agencies
working within the Pitkin County Regional Center to secure a bid for purchasing the
radios. The radio equipment and the invoicing will not be received until 2025.
DISCUSSION: The in-car and portable radios provide critical and timely
communication to first responders. The full replacement of radios by police, fire, and
EMS services throughout all of Pitkin County will maintain interoperability.
Interoperability is critical to public safety and allows real-time data exchange and
coordinated emergency response to critical incidents and mutual aid requests.
4
BASIS FOR VENDOR SELECTION:This was a sole source procurement process;
Motorola is the supplier that can fulfill the radio equipment needed for law enforcement
and other public safety organizations.
FINANCIAL IMPACTS:There is no additional financial impact in 2024 based on the
long lead time. The equipment will not be received until 2025. The budget request for
this purchase is part of the adopted 2025 capital budget, which included $300,000 for
this acquisition within the 000 Asset Management Plan Fund (Project #51783).
ENVIRONMENTAL IMPACTS: The used radios will be reassigned to other city
departments, and they all have rechargeable batteries.
ALTERNATIVES:Staff believe that the amount budgeted for this capital project could
increase if the contract is not signed now.
RECOMMENDATIONS:Staff requests council approve the contract with Motorola Inc.
for $301,868.
CITY MANAGER COMMENTS:
5
RESOLUTION # 114
(Series of 2024)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND MOTOROLA INC., AND 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
between the City of Aspen and Motorola, Inc., a true and accurate copy of which
is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for the purchase of radios between the City of Aspen and Motorola Inc., a copy of
which is annexed hereto and incorporated herein and does hereby authorize the
City Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 3
rd day of December 2024.
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 3, 2024.
Nicole Henning, City Clerk
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Supply Procurement Page 1
Updated 05/2024
CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
City of Aspen Project No.: 2024-385
AGREEMENT made as of 11th day of September, in the year 2024.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5055
And the Vendor:
Motorola
c/o Amber Geiwitz
13108 Collections Center Drive
Chicago, IL 60693
720-338-7624
amber.geiwitz@motorolasolutions.com
Summary Description of Items to be Purchased:
2025 Radio Upgrade Order for Aspen Police Department
Exhibits appended and made a part of this Agreement:
The City and Vendor agree as set forth below.
If this Agreement requires the City to pay
an amount of money in excess of
$100,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date:
Resolution No.:
Exhibit A: List of supplies, equipment, or materials to be purchased.
Exhibit B: Participating Addendum to NASPO ValuePoint with Motorola Solutions, Inc.
Master Agreement No. 00318 and State of Colorado Contract # 173765
Total: $301,867.82
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BA
2024-114
12/3/2024
Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB Pitkin County Communications Attn: Nelson/Goelz 351 Southside
Drive Basalt, CO 81621) [Delivery Address]
3. Contract Documents. This Agreement shall be subject to the terms of conditions of
the PARTICPATING ADDENDUM to NASPO ValuePoint Master Agreement No. 00318
between Motorola Solutions, Inc. and The State of Colorado #173765 “Contract Documents” and
said Contract Document are hereby made a part of this Agreement as if fully set out at length
herein.
4. Warranties. 7 years of coverage on the radios (HW repair, SW and technical
support).
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. The purchase agreement
shall accrue to the benefit of and be binding upon the parties hereto. Motorola Solutions may
assign this agreement to a successor entity into which Motorola Solutions shall have been
merged or consolidated or to which Motorola Solutions shall have sold or transferred all or
substantially all its assets, and Motorola Solutions may assign this agreement in whole or in part,
in connection with any merger, consolidation, asset purchase, split-up, spin-off, divestiture, asset
sale or similar transaction involving the Motorola Solutions line or lines of business involved in
the performance of this agreement. This agreement shall not be otherwise assigned by Motorola
Solutions or by customer without the prior written consent of the other party, which consent shall
not be unreasonably withheld. This paragraph does not cover the transfer or assignment of
customer's interest as licensee of software. Any provisions related to the transfer or assignment
of customer's interest as licensee of software shall be contained in the software license.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be construed, or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BADocusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney’s Fees. In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney’s fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
11. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(A) Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B) Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C) Vendor represents that no official, officer, employee or representative of the City durin g
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D) In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BADocusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by the City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience. If the City has accepted delivery of any products or services performed through the
date of termination, the Customer is obligated to pay for the products or services.
14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement. Customer may terminate any Purchase Order if
funds sufficient to pay its obligations under the Agreement are not appropriated by the applicable
state legislature, federal government or other appropriate government entity or received from an
intended third-party funding source. If the City has accepted delivery of any products or services
performed through the date of determination, the Customer is obligated to pay for the products or
services.
15. City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of $100,000.00 it shall not be deemed valid until it has been approved by the
City Council of the City of Aspen.
16. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap,
or religion shall be made in the employment of persons to perform under this Agreement.
Vendor agrees to meet all of the requirements of City’s municipal code, section 13-98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
Any business that enters into a contract for goods or services with the City of Aspen or any of its
boards, agencies, or departments shall:
(a) Implement an employment nondiscrimination policy prohibiting discrimination in
hiring, discharging, promoting or demoting, matters of compensation, or any other
employment-related decision or benefit on account of actual or perceived race,
color, religion, national origin, gender, physical or mental disability, age, military
status, sexual orientation, gender identity, gender expression, or marital or
familial status.
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BADocusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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(b) Not discriminate in the performance of the contract on account of actual or
perceived race, color, religion, national origin, gender, physical or mental
disability, age, military status, sexual orientation, gender identity, gender
expression, or marital or familial status.
(c) Incorporate the foregoing provisions in all subcontracts hereunder.
17. Integration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
19. Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BADocusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
to be duly executed the day and year first herein, of which, to all intents and purposes, shall be
considered as the original.
FOR THE CITY OF ASPEN:
By: __ _________________________
_______________________________
Date
Approved as to form:
_______________________________
City Attorney’s Office
SUPPLIER:
___________________________
By:________________________________
___________________________________
Title
___________________________________
Date
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220
Area Sales Manager
Amber Geiwitz
10/25/2024 | 9:46:04 AM MDT
Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BADocusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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EXHIBIT A: LIST OF SUPPLIES, EQUIPMENT, OR MATERIALS TO BE
PURCHASED
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BADocusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
13273
CMS # 173765
Contract Number: Page 1 of 30 Version 062020
PARTICIPATING ADDENDUM
to NASPO ValuePoint
Public Safety Communications Products, Services, and Solutions
Administered by the State of Washington
with Motorola Solutions, Inc.
Master Agreement No. 00318
And
The State of Colorado
Contract # 173765
1. PARTIES AND SCOPE
This Participating Addendum, including all of its attached exhibits and other documents
incorporated by reference (the “Participating Addendum”), is entered into by and between
Motorola Solutions, Inc. (the “Contractor”), and the State of Colorado (the “State”). This
Participating Addendum covers participation in the Public Safety Communications Products,
Services, and Solutions Master Agreement led by the State of Washington (the “Master
Agreement”), for use by State agencies and other entities located in Colorado which are authorized
by law to utilize State contracts with the prior approval of the State Purchasing Director. The
specific Goods and Services provided under the Master Agreement are listed in Exhibit C
Products and Price List of this agreement.
2. PARTICIPATION
Agencies, political subdivisions and other entities (including cooperatives) authorized by the
State’s statutes to use State contracts may make purchases under this Participating Addendum as
of its Effective Date. Issues of interpretation and eligibility for participation are solely within the
authority of the Chief Procurement Officer.
3. STATE MODIFICATIONS TO MASTER AGREEMENT AND APPLICABILITY
To the extent not modified by this Participating Addendum and all its exhibits, the Master
Agreement and all its terms and conditions shall apply to this Participating Addendum. If any term
of this Participating Addendum conflicts with the Master Agreement, then this Participating
Addendum shall control for all transactions between the State and the Contractor under this
Participating Addendum. All terms defined in the Master Agreement shall have the meaning given
to them in the Master Agreement, except for those terms specifically defined differently in this
PARTICIPATING ADDENDUM.
4. RESERVED
5. PRIMARY CONTACTS AND PERSONNEL RESPONSIBILITIES
The primary contacts for this Participating Addendum are the individuals named in this section.
Either Party may change its primary contacts or primary contacts contact information by notice
submitted to the other party in writing no later than 5 days following the date on which the change
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
14215
CMS # 173765
Contract Number: Page 2 of 30 Version 062020
occurs, without a formal amendment to this Participating Addendum. The Contractor’s primary
contact shall be ultimately responsible for ensuring that all Goods are delivered and all Services
are completed in accordance with this Participating Addendum.
Primary Contact for the State: Primary Contact for the Contractor:
Greg Draughon Lane Feingold
Colorado State Purchasing & Contracts Office Motorola Solutions, Inc.
1525 Sherman Street, 3rd Floor 7237 Church Ranch Blvd, #406
Denver, CO 80203 Westminster, CO 80021
303-866-4552 720-338-7624
Gregory.Draughon@state.co.us Lane.Feingoild@motorolasolutions.com
Each individual identified in this §5 of the Participating Addendum shall be the primary contact of
the designating Party. All notices required or permitted to be given under this Participating
Addendum shall be in writing and shall be delivered (A) by hand with receipt required, (B) by
certified or registered mail to such Party’s primary contact at the address set forth above or (C) as
an email with read receipt requested to the primary contact at the email address, if any, set forth
above. If a Party delivers a notice to another through email and the email is undeliverable then,
unless the Party has been provided with an alternate email contact, the Party delivering the notice
shall deliver the notice by hand with receipt required or by certified or registered mail to such
Party’s primary contact at the address set forth above. Unless otherwise provided in this
Participating Addendum, notices shall be effective upon delivery of the written notice.
In addition to the primary contact in this section, the Contractor shall also provide an individual
who is ultimately responsible for the creation and submission of the quarterly volume report
described in Exhibit A of this Participating Addendum. This individual, as named in this section,
shall ensure that all required quarterly volume reports are accurate and delivered by the appropriate
due date for that quarterly volume report. The Contractor may change this individual or their
contact information by notice submitted to the other party in writing no later than 5 days following
the date on which the change occurs, without a formal amendment to this Participating Addendum.
Individual Responsible for Quarterly Volume Report Creation and Submission:
Lane Feingold
Motorola Solutions, Inc.
7237 Church Ranch Blvd, #406
Westminster, CO 80021
720-338-7624
Lane.Feingoild@motorolasolutions.com
6. SUBCONTRACTORS
The Contractor may only use Subcontractors, as defined in Exhibit A. §4, under this Participating
Addendum if the State has provided written approval for the Contractor to use that Subcontractor.
All such approved Subcontractors authorized in the State of Colorado, as shown on the dedicated
Contractor website, are approved to provide sales and service support to the State and any
Purchasing Entity in the State. The Contractor’s Subcontractor’s participation shall be in
accordance with the terms and conditions set forth in the Master Agreement and this Participating
Addendum, as appropriate.
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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CMS # 173765
Contract Number: Page 3 of 30 Version 062020
7. ORDERS
Any Order placed by a Purchasing Entity in the State of Colorado for a Good or Service available
under this Participating Addendum shall be deemed to be a sale (and governed by the prices and
other terms and conditions) under the Master Agreement and this Participating Addendum unless
the parties to the Order agree in writing that another contract or agreement applies to such Order
or the terms of that Order control to the extent that they conflict with the terms of the Master
Agreement or this Participating Addendum.
8. ORDER OF PRECEDENCE AND ATTACHED EXHIBITS
All of the exhibits listed in this section are attached to this Participating Addendum and are
incorporated herein by reference. In the event of a conflict or inconsistency between this
Participating Addendum and any exhibits or attachment such conflict or inconsistency shall be
resolved by reference to the documents in the following order of priority:
A. Colorado Special Provisions in §20 of Exhibit A, State Specific Terms
B. Exhibit E, Safeguarding Requirements for Federal Tax Information, as applicable
C. Exhibit D, HIPPA Business Associate Agreement, as applicable
D. Exhibit F, Information Technology Provisions
E. The provisions of this Participating Addendum
F. All other sections of Exhibit A, State Specific Terms
G. Exhibit B Statement of Work
H. Exhibit C Products and Price List
Notwithstanding anything to the contrary herein, the State and Purchasing Entities shall not be
subject to any provision incorporated in any terms and conditions appearing on Contractor’s or
Subcontractor’s website, any provision incorporated into any click-through or online agreements,
or any provisions incorporated into any other document or agreement between the Parties that (i)
requires the State to indemnify or hold harmless Contractor or any other party, (ii) is in violation
of State law as, regulations, rules, fiscal rules, policies, or other State requirements as deemed
solely by the State or (iii) is contrary to any of the provisions incorporated into Exhibit A, §19 or
the main body of this Participating Addendum.
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THE PARTIES HERETO HAVE EXECUTED THIS AMENDMENT
CONTRACTOR
Motorola Soultions, Inc.
By: Jack Molloy
Title:
By:______________________________________________
*Signature
Date: _________________________
STATE OF COLORADO
Jared S. Polis, Governor
Department of Personnel & Administration
State Purchasing and Contracts Office
Tobin Follenweider, Deputy Executive Director
By:______________________________________________
Sherri Maxwell, Chief Procurement Officer, or
John Chapman, State Purchasing Manager
Date: _________________________
STATE OF COLORADO
Governor’s Office of Information Technology
In accordance with §24-30-202, C.R.S., if this Contract is for a Major Information Technology Project, this Contract is not
valid until signed and dated below by the Chief Information Officer or an authorized delegate.
STATE CHIEF INFORMATION OFFICER
Anthony Neal-Graves, Chief Information Officer and Executive Director
Signed: ___________________________________________
Printed Name: _____________________________________
Title: _____________________________________________
Date: _________________________
ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER
§24-30-202 C.R.S. requires the State Controller to approve all State Contracts. This Participating Addendum is not valid until signed
and dated below by the State Controller or an authorized delegate.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:___________________________________________
Name: __________________________________________
Date:_____________________
ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER
§24-30-202, C.R.S. requires the State Controller to approve all State Contracts. This Participating Addendum is not valid until signed and
dated below by the State Controller or an authorized delegate.
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6/29/2022
6/29/2022
6/29/2022
6/29/2022
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PARTICIPATING ADDENDUM
EXHIBIT A
STATE SPECIFIC TERMS
1. PARTIES AND SCOPE ............................................................................................................ 1
2. PARTICIPATION ..................................................................................................................... 1
3. STATE MODIFICATIONS TO MASTER AGREEMENT AND APPLICABILITY ............. 1
4. RESERVED…………………………………………………………………………………...1
5. PRIMARY CONTACTS AND PERSONNEL RESPONSIBILITIES ..................................... 1
6. SUBCONTRACTORS .............................................................................................................. 2
7. ORDERS .................................................................................................................................... 3
8. ORDER OF PRECEDENCE AND ATTACHED EXHIBITS ................................................. 3
9. AUTHORITY ............................................................................................................................ 5
10. PURPOSE .................................................................................................................................. 5
11. TERM ........................................................................................................................................ 6
12. DEFINITIONS .......................................................................................................................... 7
13. STATEMENT OF WORK ...................................................................................................... 10
14. PAYMENTS TO CONTRACTOR ......................................................................................... 11
15. PAYMENTS TO STATE ........................................................................................................ 13
16. REPORTING – NOTIFICATION ........................................................................................... 13
17. CONTRACTOR RECORDS ................................................................................................... 15
18. CONFIDENTIAL INFORMATION-STATE RECORDS ...................................................... 15
19. CONFLICTS OF INTEREST .................................................................................................. 17
20. INSURANCE .......................................................................................................................... 17
21. BREACH OF CONTRACT .................................................................................................... 20
22. REMEDIES ............................................................................................................................. 20
23. DISPUTE RESOLUTION ....................................................................................................... 22
24. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ........................................ 23
25. OBLIGATIONS AND RIGHTS IN THE EVENT OF TERMINATION OF ORDER OR
CONTRACT ............................................................................................................................ 23
26. STATEWIDE CONTRACT MANAGEMENT SYSTEM ..................................................... 24
27. GENERAL PROVISIONS ...................................................................................................... 24
28. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ....................... 27
EXHIBIT B STATEMENT OF WORK .................................................................................... 1
EXHIBIT C PRODUCTS AND PRICE LIST .......................................................................... 1
EXHIBIT D HIPAA BUSINESS ASSOCIATE AGREEMENT .............................................. 1
EXHIBIT E SAFEGUARDING REQUIREMENTS FOR FEDERAL TAX INFO………….1
EXHIBIT F INFORMATION AND TECHNOLOGY SPECIAL PROVISIONS……………1
1. AUTHORITY
Authority to enter into this Participating Addendum exists in the Colorado Procurement Code, §24-
102-202, C.R.S. and 1 CCR 101-9 R-24-102-202-01., and its associated rules.
2. PURPOSE
The Parties are entering into this Participating Addendum for the Contractor to provide Public
Safety Communications Products, Services, and Solutions to Purchasing Entities. The Contractor
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was selected as a result of State Price Agreement.
3. TERM
A. Initial Term - Work Commencement
The Parties’ respective performances under this Participating Addendum shall commence on
the Effective Date and shall be co-terminus with NASPO ValuePoint Master Agreement
00318. Unless this Participating Addendum is terminated earlier, as described herein, or the
State cancels its participation as described in the Master Agreement (the “Term”), the term
of the Participating Addendum shall follow the Master Agreement initial term and will be
automatically extended beyond the initial term if the Master Agreement term is extended (See
Section 3.B.).
B. Extension of Term
If the term of NASPO ValuePoint Master Agreement is extended for any reason, the Term of
this Participating Addendum shall be automatically modified to account for that extension,
so long as such extension complies with the Colorado Procurement Code.
C. End of Term Extension
If this Participating Addendum approaches the end of its Initial Term, or any Extension Term
then in place, the State, at its discretion, upon written notice to Contractor’s primary contact
listed in §5 of the Participating Addendum and in accordance with §5 of this Participating
Addendum, may unilaterally extend such Initial Term or Extension Term for a period not to
exceed 2 months (an “End of Term Extension”), regardless of whether additional Extension
Terms are available or not. The provisions of this Participating Addendum in effect when
such notice is given shall remain in effect during the End of Term Extension. The End of
Term Extension shall automatically terminate upon execution of a replacement contract or
modification extending the total term of this Participating Addendum.
D. Order Term
Orders may only be placed prior to the expiration or earlier termination of this Participating
Addendum, but may have a delivery date or performance period that extends no longer than
120 calendar days following that expiration or earlier termination date. Regardless of
whether this Participating Addendum has expired or has been terminated, the Contractor shall
comply with all Orders that extend past the expiration or termination, as described in this
section, and all requirements of this Participating Addendum necessary to complete
outstanding Orders shall survive the expiration or termination of this Participating Addendum
until all Orders are complete.
E. Early Termination in the Public Interest
The State is entering into this Participating Addendum to serve the public interest of the State
of Colorado as determined by its Governor, General Assembly, or Courts. A determination
that this Contract should be terminated in the public interest shall not be equivalent to a State
right to terminate for convenience. This subsection shall not apply to a termination of this
Participating Addendum by the State for breach by Contractor, which shall be governed by
§14.A.i.
i. Method and Content
The State shall notify Contractor of such termination in accordance with §5 of this
Participating Addendum. The notice shall specify the effective date of the termination
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and whether it affects all or a portion of this Participating Addendum, and shall include,
to the extent practicable, the public interest justification for the termination.
ii. Obligations and Rights
Upon receipt of notice for termination in the public interest, Contractor shall be subject
to the rights and obligations set forth in §Error! Reference source not found..
iii. Payments
If the State terminates this Participating Addendum in the public interest, the
Purchasing Entities shall pay Contractor according to their orders with the Contractor
for Goods provided and Services rendered. The sum of any and all payments shall not
exceed the maximum amount payable to Contractor under each order.
4. DEFINITIONS
The following terms shall be construed and interpreted as follows:
A. “Administration Fee” means the fee that is due to the State for the administration of this
Participating Addendum, as described in §7. A. of this Exhibit A.
B. “Breach of Contract” means the failure of a Party to perform any of its obligations in
accordance with this Contract, in whole or in part or in a timely or satisfactory manner. The
institution of proceedings under any bankruptcy, insolvency, reorganization or similar law,
by or against Contractor, or the appointment of a receiver or similar officer for Contractor or
any of its property, which is not vacated or fully stayed within thirty (30) days after the
institution of such proceeding, shall also constitute a breach. If Contractor is debarred or
suspended under §24-109-105, C.R.S. at any time during the term of this Contract, then such
debarment or suspension shall constitute a breach.
C. “Business Day” means any day in which the State is open and conducting business, but shall
not include Saturday, Sunday or any day on which the State observes one of the holidays
listed in §24-11-101(1), C.R.S.
D. “Ceiling Price” means the maximum price a Contractor or a Subcontractor may charge for
a Good or Service under this Participating Addendum.
E. “Chief Procurement Officer” means the individual to whom the Executive Director of the
Department of Personnel & Administration has delegated his or her authority pursuant to
§24-102-202, C.R.S. to procure or supervise the procurement of all supplies and services
needed by the state.
F. “CJI” means criminal justice information collected by criminal justice agencies needed for
the performance of their authorized functions, including, without limitation, all information
defined as criminal justice information by the U.S. Department of Justice, Federal Bureau of
Investigation, Criminal Justice Information Services Security Policy, as amended, and all
Criminal Justice Records as defined under §24-72-302, C.R.S.
G. “Confidential Information” means any and all information that is normally considered
confidential in nature, and includes, but is not limited to, all State Records not subject to
disclosure under the Colorado Open Records Act, §§24-72-200.1, et seq., C.R.S. (“CORA”).
H. “Contract” means this Participating Addendum, including all attached Exhibits, all
documents incorporated by reference, all referenced statutes, rules and cited authorities, and
any future modifications thereto.
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I. “Contract Funds” means the funds that have been appropriated, designated, encumbered, or
otherwise made available for payment by a Purchasing Entity for Orders placed under this
Participating Addendum.
J. “CORA” means the Colorado Open Records Act, §§24-72-200.1, et. seq., C.R.S.
K. “Effective Date” means the date Contract is signed by the State Controller or their designee.
L. “End of Term Extension” means the time period defined in §3. C. of this Exhibit A.
M. “Environmentally Preferable Products” means products that have a lesser or reduced
adverse effect on human health and the environment when compared with competing
products that serve the same purpose, as defined in §24-103-904, C.R.S.
N. “Effective Date” means the date on which this Participating Addendum is approved and
signed by the Colorado State Controller or designee, as shown on the Signature Page for this
Participating Addendum. If this Contract is for a Major Information Technology Project, as
defined in §24-37.5-102(2.6), C.R.S., then the Effective Date of this Contract shall be the
later of the date on which this Contract is approved and signed by the State’s Chief
Information Officer or authorized delegate or the date on which this Contract is approved and
signed by the State Controller or authorized delegate, as shown on the Signature Page for this
Contract.
O. “Exhibits” means the following exhibits attached to this Contract:
i. Exhibit A, State Specific Terms.
ii. Exhibit B, Statement of Work.
iii. Exhibit C, Products and Price List
iv. Exhibit D, HIPAA Business Associate Agreement
v. Exhibit E, Safeguarding Federal Tax Information
vi. Exhibit F, Information Technology Provisions
P. “Extension Term” means the time period defined in §3. B.
Q. “Goods” means any movable material acquired, produced, or delivered by Contractor as set
forth in this Participating Addendum and shall include any movable material acquired,
produced, or delivered by Contractor in connection with the Services.
R. “Incident” means any accidental or deliberate event that results in or constitutes an imminent
threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of
any communications or information resources of the State, which are included as part of the
Work, as described in §§24-37.5-401, et. seq., C.R.S. Incidents include, without limitation
(i) successful attempts to gain unauthorized access to a State system or State Information
regardless of where such information is located; (ii) unwanted disruption or denial of service;
(iii) the unauthorized use of a State system for the processing or storage of data; or (iv)
changes to State system hardware, firmware, or software characteristics without the State’s
knowledge, instruction, or consent.
S. “Initial Term” means the time period defined in §3.A of this Exhibit A.
T. “Order” means any delivery order, purchase order, contract, agreement or other binding
document used by a Purchasing Entity to order the Goods and Services described in this
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Participating Addendum from the Contractor, and shall include any modification to such a
document.
U. “Party” means the State or Contractor, and “Parties” means both the State and Contractor.
V. “Purchasing Entity” means any entity or organization that has been authorized by the State
to place Orders with the Contractor, and may include, without limitation, agencies of the
State, government supported institution of higher education within the State, political
subdivisions of the State, authorized non-profit organizations and other authorized entities.
W. “PCI” means payment card information including any data related to credit card holders’
names, credit card numbers, or the other credit card information as may be protected by state
or federal law.
X. “PII” means personally identifiable information including, without limitation, any
information maintained by the State about an individual that can be used to distinguish or
trace an individual’s identity, such as name, social security number, date and place of birth,
mother‘s maiden name, or biometric records; and any other information that is linked or
linkable to an individual, such as medical, educational, financial, and employment
information. PII includes, but is not limited to, all information defined as personally
identifiable information in §§24-72-501 and 24-73-101, C.R.S.
Y. “PHI” means any protected health information, including, without limitation any information
whether oral or recorded in any form or medium: (i) that relates to the past, present or future
physical or mental condition of an individual; the provision of health care to an individual;
or the past, present or future payment for the provision of health care to an individual; and
(ii) that identifies the individual or with respect to which there is a reasonable basis to believe
the information can be used to identify the individual. PHI includes, but is not limited to, any
information defined as Individually Identifiable Health Information by the federal Health
Insurance Portability and Accountability Act.
Z. “Services” means the services to be performed by Contractor as set forth in this Participating
Addendum, and shall include any services to be rendered by Contractor in connection with
the Goods.
AA. “State Confidential Information” means any and all State Records not subject to disclosure
under CORA. State Confidential Information shall include, but is not limited to, PII, PCI, and
State personnel records not subject to disclosure under CORA. State Confidential
Information shall not include information or data concerning individuals that is not deemed
confidential but nevertheless belongs to the State, which has been communicated, furnished,
or disclosed by the State to Contractor which (i) is subject to disclosure pursuant to CORA;
(ii) is already known to Contractor without restrictions at the time of its disclosure to
Contractor; (iii) is or subsequently becomes publicly available without breach of any
obligation owed by Contractor to the State; (iv) is disclosed to Contractor, without
confidentiality obligations, by a third party who has the right to disclose such information; or
(v) was independently developed without reliance on any State Confidential Information.
With respect to Motorola, “Confidential Information” means any and all non-public
information provided by one Party (“Discloser”) to the other (“Recipient”) that is disclosed
under this Agreement in oral, written, graphic, machine recognizable, or sample form, being
clearly designated, labeled or marked as confidential or its equivalent or that a reasonable
businessperson would consider non-public and confidential by its nature. Confidential
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Information will also include Products and Services, and Documentation, as well as any other
information relating to the Products and Services.
BB. “State Fiscal Rules” means that fiscal rules promulgated by the Colorado State Controller
pursuant to §24-30-202(13) (a), C.R.S.
CC. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and
ending on June 30 of the following calendar year. If a single calendar year follows the term,
then it means the State Fiscal Year ending in that calendar year.
DD. “State Records” means any and all State data, information, and records, regardless of
physical form, including, but not limited to, information subject to disclosure under CORA.
EE. “Subcontractor” means third-parties, if any, engaged by Contractor pursuant to §18.B. to
aid in performance of the Work. The term “Subcontractor” includes, without limitation, any
dealers, distributors, partners or resellers engaged by the Contractor to perform the Work.
FF. “Tax Information” means federal and State of Colorado tax information including, without
limitation, federal and State tax returns, return information, and such other tax-related
information as may be protected by federal and State law and regulation. Tax Information
includes, but is not limited to all information defined as federal tax information in Internal
Revenue Service Publication 1075.
GG. “Work” means the Goods delivered and Services performed pursuant to this Contract.
HH. “Work Product” means the tangible and intangible results of the Work, whether finished or
unfinished, including drafts. Work Product includes, but is not limited to, documents, text,
software (including source code), research, reports, proposals, specifications, plans, notes,
studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys,
maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work
Product” does not include any material that was developed prior to the Effective Date that is
used, without modification, in the performance of the Work. Work Product also does not
include the software, tools, data, and other materials, including designs, utilities, models,
methodologies, systems, and specifications, which Contractor has developed or licensed
from third parties (including any corrections, bug fixes, enhancements, updates,
modifications, adaptations, translations, de-compilations, disassembly’s, or derivative works
of the foregoing, which Contractor gives the State access to.
Any other term used in this Participating Addendum that is defined in an Exhibit shall be construed
and interpreted as defined in that Exhibit.
5. STATEMENT OF WORK
Contractor shall complete the Work as described in this Participating Addendum and in accordance
with the provisions of Exhibits A, B, C and D, and with any Purchasing Entity’s Order. Contractor
personnel shall work cooperatively with State and Purchasing Entity staff to ensure the completion
of the Work.
A. Ordering and Order Fulfillment
i. Ordering
a. Contractor shall provide a complete and accurate Internal Revenue Service form
W9 to the State prior to accepting an Order from any Purchasing Entity. Upon a
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request by a Purchasing Entity, Contractor shall provide a complete and accurate
Internal Revenue Service form W9 to that Purchasing Entity.
b. Each Purchasing Entity may complete an Order in accordance with its own rules
and policies, as available to Contractor, using the appropriate documentation for
that organization to issue an Order.
c. Contractor shall communicate directly with each Purchasing Entity related to that
Purchasing Entity’s Orders.
d. Contractor shall ensure that all Orders it accepts have the proper information
contained in them for Contractor to be able to comply with all reporting
requirements of this Exhibit A.
e. If Contractor provides for Ordering through an internet-based portal or electronic
catalog, Contractor shall maintain all of Contractor’s necessary hardware,
software, backup-capacity and network connections required to operate that
internet-based portal or electronic catalog.
f. Contractor’s internet-based portal and electronic catalogs shall clearly designate
that they are part of this Participating Addendum and shall have a link to the
State’s designated web location, as determined by the State. Contractor shall
ensure that all Environmentally Preferable Products are clearly listed on internet-
based portal and electronic catalogs.
g. If Contractor provides an internet-based portal or electronic catalog, Contractor
shall also provide paper catalogs or catalogs on other digital media upon request
by a Purchasing Entity.
h. If Contractor’s catalog will be either hosted on or accessed through the State’s
eCommerce system, when available, then Contractor shall comply with all
policies, procedures and directions from the State in relation to hosting its catalog
on or making its catalog accessible through that system. Contractor shall ensure
that all information made available through the State’s eCommerce system is
accurate and complies with this Participating Addendum.
6. PAYMENTS TO CONTRACTOR
A. Payments Under Orders
i. Contractor shall allow the State and Purchasing Entities to use a procurement card or
other credit card to make payments under any Order, in addition to any other payment
procedure available to the State or Purchasing Entity.
ii. The State shall not pay any amount to Contractor under this Participating Addendum
unless the State issues an Order, at which time it shall pay Contractor in accordance
with that Order. The State shall not be responsible for payment under any Order that is
issued by a Purchasing Entity that is not the State, and the Contractor shall seek no
payment or other compensation from the State for any Work performed under any Order
issued by a Purchasing Entity that is not the State.
B. Payment Procedures
i. Invoices
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Contractor shall invoice each Purchasing Entity in accordance with that Purchasing
Entity’s Order. Contractor shall not invoice the State under any Order unless the State
issued that Order. Contractor shall allow 45 days for the State and Purchasing Entities
to pay an invoice following the receipt of the invoice, unless the State or a Purchasing
Entity specifically agrees to a shorter time in an Order. State law and regulations
provide that State payments made within 45 days are not considered delinquent, and
unless otherwise agreed, State Purchasing Entities will pay interest on any unpaid
balance beginning on the 45th day at the rate of 1% per month until paid in full;
provided, however, that interest shall not accrue on unpaid amounts that are the subject
of a good faith dispute regarding the obligation to pay all or a portion of the liability.
Contractor shall invoice State Ordering Entities separately for accrued interest on
delinquent amounts due. The billing shall reference the delinquent payment, the number
of day’s interest to be paid, and the applicable interest rate. (§ 24-30-202(24), C.R.S.,
as amended.)
ii. Payment Disputes
Unless different procedures are specified in an Order, if Contractor disputes any
calculation, determination or amount of any payment, Contractor shall notify the
Purchasing Entity issuing the Order in writing of its dispute within 30 days following
the earlier to occur of Contractor’s receipt of the payment or notification of the
determination or calculation of the payment by that Purchasing Entity. The Purchasing
Entity will review the information presented by Contractor and may make changes to
its determination based on this review. The calculation, determination or payment
amount that results from the Purchasing Entity’s review shall not be subject to
additional dispute under this subsection. No payment subject to a dispute under this
subsection shall be due until after the Purchasing Entity has concluded its review, and
the Purchasing Entity shall not pay any interest on any amount during the period it is
subject to dispute under this subsection.
iii. Available Funds-Contingency-Termination of Order
Purchasing Entities, except for authorized non-profit entities, are prohibited by law
from making commitments beyond the term of the current Purchasing Entity’s Fiscal
Year. Payment to Contractor beyond the current Purchasing Entity’s Fiscal Year is
contingent on the appropriation and continuing availability of Contract Funds in any
subsequent year (See Colorado Special Provision). If federal funds, non-State funds or
funds from any other source constitute all or some of the Contract Funds, the Purchasing
Entity’s obligation to pay Contractor shall be contingent upon such funding continuing
to be made available for payment. Orders under this Participating Addendum shall be
made only from Contract Funds, and the Purchasing Entity’s liability for such payments
shall be limited to the amount remaining of such Contract Funds. If State, federal or
other Purchasing Entity funds are not appropriated, or otherwise become unavailable to
fund an Order under this Participating Addendum, the Purchasing Entity may, upon
written notice, terminate the Order, in whole or in part, without incurring further
liability. The Purchasing Entity shall, however, remain obligated to pay for Services
and Goods that are delivered and accepted prior to the effective date of notice of
termination of Order. A State Purchasing Entity Order termination shall otherwise be
treated as if the Order was terminated in the public interest as described in §3. E. of this
Exhibit A.
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The Purchasing Entity may effect such termination by giving Contractor a written
notice of termination, to the Contractor’s primary contact in accordance with §5 of the
Participating Addendum, and by paying to Contractor any amounts which are due and
have not been paid through the last day of the Fiscal Year for which appropriated funds
are available. The Purchasing Entity shall endeavor to give notice of such termination
not less than 30 days prior to the day of non-availability of funds, and shall notify
Contractor of any anticipated termination.
iv. Discount and Delinquency Period
Any applicable cash discount period or delinquency period for the amounts shown on
an invoice shall begin on the date the Purchasing Entity’s approves of the invoice, or
from the date of receipt of acceptable Goods or Services at the specified destination by
an authorized Purchasing Entity representative, whichever is later.
7. PAYMENTS TO STATE
Administrative Fees
A. Each State Fiscal Year quarter, Contractor shall, using a form as directed by the State,
calculate an Administrative Fee equal to 1% of the total sales made under Orders during that
State Fiscal Year quarter. Contractor shall pay the State the Administrative Fee for each State
Fiscal Year quarter within 45 days following the end of that State Fiscal Year quarter.
B. Contractor shall remit all administrative fees to the State’s primary contact identified in §5
of the Participating Addendum and with the payee as “State of Colorado”.
8. REPORTING – NOTIFICATION
A. Volume Reporting
The State will use a centralized method of tracking volume. Contractor shall provide a
quarterly volume report to the State’s primary contact identified in §5 of this Participating
Addendum within 30 calendar days following the end of the State Fiscal Year quarter that
the report covers. The quarterly volume report shall be submitted in a form as directed by
the State, which may be modified by the State from time to time. The quarterly volume report
shall contain, at a minimum, all of the following:
i. A summary volume report that includes, but is not limited to, all of the following for
the quarter that the report covers:
a. The total spent by each type of Purchasing Entity under this Participating
Addendum.
b. The total of the list price of all items purchased by each type of Purchasing Entity
under this Participating Addendum.
c. The total estimated price savings for each type of Purchasing Entity under this
Participating Addendum, calculated as the total list price of all items purchased
by each type of Purchasing Entity minus the total spent for that type of Purchasing
Entity.
d. The total paid through the use of a procurement card or credit card for each
Purchasing Entity under this Participating Addendum.
e. The total sales of environmentally preferable products, as defined in the State’s
Environmentally Preferable Purchasing Policy, for each Purchasing Entity under
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this Participating Addendum.
f. The amount of the total administrative fee due to the State.
g. Any additional summary information as requested by the State.
ii. A detail report that includes, but is not limited to, all of the following for each sale that
occurred during the quarter that the report covers:
a. The name of the Purchasing Entity who the sale was made to.
b. The date of the sale.
c. A listing of each item purchased in the sale, the quantity of the item, the unit price
for the item, the extended price for the item calculated by multiplying the unit
price by the quantity, the list price per unit for the item, the extended list price for
the item calculated by multiplying the quantity by the list price, and the savings
on the item calculated by subtracting the extended cost from the extended list
price.
d. Any other detail information as requested by the State.
B. Additional Operational Reporting
Upon request by the State, the Contractor shall provide operational reporting that includes all
detailed and summary transaction, historical or payment information related to the State or
any of the Participating Entities as requested by the State. The Contractor shall provide all
such additional reports within 10 Business Days following the State’s request for that
information, unless the State agrees to a longer period of time in writing.
C. Environmentally Preferable Product Reporting
Upon request by the State, the Contractor shall provide detailed reporting on environmentally
preferable products, as defined in the State’s Environmentally Preferable Purchasing Policy,
that are purchased or made available under this Participating Addendum. The scope and
detail of such reports shall be agreed upon by the State and the Contractor. The Contractor
shall provide all such additional reports within 10 Business Days following the State’s request
for that information, unless the State agrees to a longer period of time in writing.
D. Litigation Reporting
If Contractor is served with a pleading or other document in connection with an action before
a court or other administrative decision making body, and such pleading or document relates
to this Participating Addendum or may affect Contractor’s ability to perform its obligations
under this Participating Addendum, Contractor shall, within 10 days after being served, notify
the State of such action and deliver copies of such pleading or document to the State’s primary
contact identified in §5 of the Participating Addendum .
E. Performance Outside the State of Colorado or the United States, §24-102-206, C.R.S.
To the extent not previously disclosed in accordance with §24-102-206, C.R.S., Contractor
shall provide written notice to the State’s primary contact in accordance with §5 of the
Participating Addendum and in a form designated by the State, within 20 days following the
earlier to occur of Contractor’s decision to perform Services outside of the State of Colorado
or the United States, or its execution of an agreement with a Subcontractor to perform
Services outside the State of Colorado or the United States. Such notice shall specify the type
of Services to be performed outside the State of Colorado or the United States and the reason
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why it is necessary or advantageous to perform such Services at such location or locations,
and such notice shall be a public record. Knowing failure by Contractor to provide notice to
the State under this section shall constitute a breach of this Participating Addendum. This
section shall not apply if the Participating Addendum Funds include any federal funds.
9. CONTRACTOR RECORDS
A. Maintenance
Contractor shall maintain a file of all documents, records, communications, notes and other
materials relating to the Work (the “Contractor Records”) performed by the Contractor and
any Subcontractors, that are required to ensure proper performance of that Work. Contractor
shall maintain Contractor Records until the last to occur of: (i) the date 3 years after the date
this Participating Addendum expires or is terminated, (ii) final payment under this
Participating Addendum is made, (iii) the resolution of any pending Contract matters, or (iv)
if an audit is occurring, or Contractor has received notice that an audit is pending, the date
such audit is completed and its findings have been resolved (the “Record Retention Period”).
B. Inspection
Contractor shall permit the State to audit, inspect, examine, excerpt, copy and transcribe
Contractor Records during the Record Retention Period. Contractor shall make Contractor
Records available during normal business hours at Contractor’s office or place of business,
or at other mutually agreed upon times or locations, upon no fewer than 2 Business Days’
notice from the State, unless the State determines that a shorter period of notice, or no notice,
is necessary to protect the interests of the State.
C. Monitoring
The State may monitor Contractor’s performance of its obligations under this Participating
Addendum. The State shall evaluate Contractor’s performance in a manner that does not
unduly interfere with Contractor’s performance of the Work.
D. Final Audit Report
Contractor shall promptly submit to the State a copy of any final audit report of an audit
performed on Contractor’s records that relates to or affects this Participating Addendum or
the Work, whether the audit is conducted by Contractor or a third party.
E. Periodic Business Reviews
i. The State may schedule periodic business reviews to review Contractor’s performance
under this Participating Addendum.
ii. Contractor shall ensure personnel assigned to the Participating Addendum are available
for these meetings with the State as scheduled by the State and Contractor.
iii. Contractor’s primary contact designated in §5 of this the Participating Addendum shall
be available for all regularly scheduled meetings between Contractor and the State,
unless the State has granted prior, written approval otherwise.
10. CONFIDENTIAL INFORMATION-STATE RECORDS
A. Confidentiality
Contractor shall keep confidential, and cause all Subcontractors to keep confidential, all State
Records, unless those State Records are publicly available. Contractor shall not, without prior
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written approval of the State, use, publish, copy, disclose to any third party, or permit the use
by any third party of any State Records, except as otherwise stated in this Participating
Addendum, permitted by law or approved in Writing by the State. Contractor shall provide
for the security of all State Confidential Information in accordance with all policies
promulgated by the Colorado Office of Information Security and all applicable laws, rules,
policies, publications, and guidelines. If Contractor or any of its Subcontractors will or may
receive the following types of data, Contractor or its Subcontractors shall provide for the
security of such data according to the following: (i) the most recently promulgated IRS
Publication 1075 for all Tax Information and in accordance with the Safeguarding
Requirements for Federal Tax Information attached to this Contract as an Exhibit, if
applicable, (ii) the most recently updated PCI Data Security Standard from the PCI Security
Standards Council for all PCI, (iii) the most recently issued version of the U.S. Department
of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Security
Policy for all CJI, and (iv) the federal Health Insurance Portability and Accountability Act
for all PHI and the HIPAA Business Associate Agreement attached to this Contract , if
applicable. Contractor shall immediately forward any request or demand for State Records to
the State’s primary contact as identified in §5 of the Participating Addendum.
B. Other Entity Access and Nondisclosure Agreements
Contractor may provide State Records to its agents, employees, assigns and Subcontractors
as necessary to perform the Work, but shall restrict access to State Confidential Information
to those agents, employees, assigns and Subcontractors who require access to perform their
obligations under this Participating Addendum. Contractor shall ensure all such agents,
employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions
at least as protective as those in this Participating Addendum, and that the nondisclosure
provisions are in force at all times the agent, employee, assign or Subcontractor has access to
any State Confidential Information. Contractor shall provide copies of those signed
nondisclosure provisions to the State upon execution of the nondisclosure provisions.
C. Use, Security, and Retention
Contractor shall use, hold and maintain State Confidential Information in compliance with
any and all applicable laws and regulations in facilities located within the United States, and
shall maintain a secure environment that ensures confidentiality of all State Confidential
Information wherever located. Contractor shall provide the State with access, subject to
Contractor’s reasonable security requirements, for purposes of inspecting and monitoring
access and use of State Confidential Information and evaluating security control
effectiveness. Upon the expiration or termination of this Participating Addendum, Contractor
shall return State Records provided to Contractor or destroy such State Records and certify
to the State that it has done so, as directed by the State. If Contractor is prevented by law or
regulation from returning or destroying State Confidential Information, Contractor warrants
it will guarantee the confidentiality of, and cease to use, such State Confidential Information.
D. Incident Notice and Remediation
If Contractor becomes aware of any Incident, it shall notify the State as soon as possible, and
cooperate with the State regarding recovery, remediation, and the necessity to involve law
enforcement, as determined by the State. Unless Contractor can establish that neither
Contractor nor any of Contractor’s agents, employees, assigns or Subcontractors are the cause
or source of the Incident, Contractor shall be responsible for the cost of notifying each person
who may have been impacted by the Incident. After an Incident, Contractor shall take steps
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to reduce the risk of incurring a similar type of Incident in the future as directed by the State,
which may include, but is not limited to, developing and implementing a remediation plan
that is approved by the State at no additional cost to the State. The State may, in its sole
discretion and at Contractor’s sole expense, require Contractor to engage the services of an
independent, qualified, State-approved third party to conduct a security audit. Contractor
shall provide the State with the redacted version of results of such audit and evidence of
Contractor’s planned remediation in response to any negative findings, redacting
Contractor’s confidential restricted information, to the extent there is any such confidential,
restricted information included in the audit results.
E. Data Protection and Handling
Contractor shall ensure that all State Records and Work Product in the possession of
Contractor or any Subcontractors are protected and handled in accordance with the
requirements of this Contract, including the requirements of any Exhibits hereto, at all times.
F. Safeguarding PII
If Contractor or any of its Subcontractors will or may receive PII under this Contract,
Contractor shall provide for the security of such PII, in a manner and form acceptable to the
State, including, without limitation, State non-disclosure requirements, use of appropriate
technology, security practices, computer access security, data access security, data storage
encryption, data transmission encryption, security inspections, and audits. Contractor shall
be a “Third-Party Service Provider” as defined in §24-73-103(1)(i), C.R.S. and shall maintain
security procedures and practices consistent with §§24-73-101 et seq., C.R.S.
11. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
Contractor shall not engage in any business or activities, or maintain any relationships that
conflict in any way with the full performance of the obligations of Contractor under this
Participating Addendum. Such a conflict of interest would arise when a Contractor or
Subcontractor’s employee, officer or agent were to offer or provide any tangible personal
benefit to an employee of the State, or any member of his or her immediate family or his or
her partner, related to the award of, entry into or management or oversight of this
Participating Addendum.
B. Apparent Conflicts of Interest
Contractor acknowledges that, with respect to this Participating Addendum, even the
appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s
prior written approval, Contractor shall refrain from any practices, activities or relationships
that reasonably appear to be in conflict with the full performance of Contractor’s obligations
under this Participating Addendum.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises, or if Contractor is uncertain whether a
conflict or the appearance of a conflict has arisen, Contractor shall submit to the State a
disclosure statement setting forth the relevant details for the State’s consideration. Failure to
promptly submit a disclosure statement or to follow the State’s direction in regard to the
actual or apparent conflict constitutes a breach of this Participating Addendum.
12. INSURANCE
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Contractor shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain,
insurance as specified in this section at all times during the term of this Participating Addendum
and until all orders for goods or Services or both have been delivered and accepted, regardless of
whether this Participating Addendum has expired or has been terminated. All insurance policies
required by this Participating Addendum shall be issued by insurance companies as approved by
the State.
A. Workers’ Compensation
Workers’ Compensation insurance as required by state statute, and employers’ liability
insurance covering all Contractor or Subcontractor employees acting within the course and
scope of their employment. Insurance must stay in place and in effect even if the contract
terms expires, until all product or terms of the contract are completed and satisfied up to 120
days after contract term expires.
B. General Liability
Commercial general liability insurance covering premises operations, fire damage,
independent contractors, products and completed operations, blanket contractual liability,
personal injury, and advertising liability with limits as follows:
i. $1,000,000 each occurrence;
ii. $2,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
iv. $50,000 any 1 fire.
C. Automobile Liability
Automobile liability insurance covering any auto (including owned, hired and non-owned
autos) with a limit of $1,000,000 each accident combined single limit.
D. Professional Liability including Cyber/Network Security and Privacy Liability
Liability insurance covering civil, regulatory, and statutory damages, contractual damages,
data breach management exposure, and any loss of income or extra expense as a result of
actual or alleged breach, violation or infringement of right to privacy, consumer data
protection law, confidentiality or other legal protection for personal information, as well as
State Confidential Information with limits as follows:
i. $3,000,000 each claim; and
ii. $6,000,000 general aggregate.
E. Professional liability insurance shall also include coverage for Protected Information
Liability insurance covering all loss of State Confidential Information, such as PII, PCI, PHI,
Tax Information, and CJI, and claims based on alleged violations of privacy rights through
improper use or disclosure of protected information.
F. Professional Liability Insurance
Professional liability insurance covering any damages caused by an error, omission or any
negligent act.
G. Crime Insurance
Crime insurance including employee dishonesty coverage with limits as follows:
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i. $1,000,000 each claim; and
ii. $1,000,000 general aggregate.
H. Additional Insured
The State shall be included as additional insured on required commercial general liability
policies (leases and construction contracts require additional insured coverage for completed
operations) required of Contractor and Subcontractors.
I. Primacy of Coverage
Coverage required of Contractor and each Subcontractor shall be primary and
noncontributory over any insurance or self-insurance program carried by Contractor or the
State.
J. Cancellation
The above insurance policies shall include provisions preventing cancellation or non-
renewal, except for cancellation based on non-payment of premiums, without at least 30 days
prior notice to Contractor and Contractor shall forward such notice to the State in accordance
with §5 of the Participating Addendum within 7 days of Contractor’s receipt of such notice.
K. Subrogation Waiver
All insurance policies except those secured or maintained by Contractor or its Subcontractors
in relation to this Participating Addendum shall include clauses stating that each carrier shall
waive all rights of recovery under subrogation or otherwise against Contractor or the State,
its agencies, institutions, organizations, officers, agents, employees, and volunteers.
L. Public Entities
If Contractor is a "public entity" within the meaning of the Colorado Governmental Immunity
Act, §§24-10-101, et seq., C.R.S. (the “GIA”), Contractor shall maintain, in lieu of the
liability insurance requirements stated above, at all times during the term of this Participating
Addendum such liability insurance, by commercial policy or self-insurance, as is necessary
to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning
of the GIA, Contractor shall ensure that the Subcontractor maintain at all times during the
terms of this Participating Addendum, in lieu of the liability insurance requirements stated
above, such liability insurance, by commercial policy or self-insurance, as is necessary to
meet the Subcontractor’s obligations under the GIA.
M. Certificates
Contractor shall provide to the State certificates evidencing Contractor’s insurance coverage
required in this Participating Addendum within 7 Business Days following the Effective
Date. Contractor shall provide to the State certificates evidencing Subcontractor insurance
coverage within 7 Business Days following the Effective Date, except that, if Contractor’s
subcontract is not in effect as of the Effective Date, Contractor shall provide to the State
certificates showing Subcontractor insurance coverage within 7 Business Days following
Contractor’s execution of the subcontract. Before the expiration date of Contractor’s or any
Subcontractor’s coverage, Contractor shall deliver to the State certificates of insurance
evidencing renewals of coverage. At renewal time during the term of this Participating
Addendum, upon request by the State, Contractor shall, within 7 Business Days following
the request by the State, supply to the State evidence satisfactory to the State of compliance
with the provisions of this §12.
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13. BREACH OF CONTRACT
In the event of a Breach of Contract, the aggrieved Party shall give written notice of breach
to the other Party. If the notified Party does not cure the Breach of Contract, at its sole
expense, within 30 days after the delivery of written notice, the Party may exercise any of the
remedies as described in §14 for that Party. Notwithstanding any provision of this
Participating Addendum to the contrary, the State, in its discretion in order to protect the
public interest of the State (such circumstances including, but not limited to, where the State
Governor issues an executive order or the State Legislature passes a law that could impact
the public interest as it relates to this Participating Addendum) need not provide notice or a
cure period and may immediately terminate this Participating Addendum in whole or in part
or institute any other remedy in this Participating Addendum; or if Contractor is debarred or
suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or
cure period and may terminate this Contract in whole or in part or institute any other remedy
in this Contract as of the date that the debarment or suspension takes effect.
14. REMEDIES
A. State’s Remedies
If Contractor is in breach under any provision of this Participating Addendum and fails to
cure such breach, the State, following the notice and cure period set forth in §13, shall have
all of the remedies listed in this section in addition to all other remedies set forth in this
Participating Addendum or at law. The State may exercise any or all of the remedies available
to it, in its discretion, concurrently or consecutively.
i. Termination for Breach
In the event of Contractor’s uncured breach, the State may terminate this entire
Participating Addendum or any part of this Participating Addendum. Contractor shall
continue performance of this Participating Addendum to the extent not terminated, if
any.
If after termination by the State, the State agrees that Contractor was not in breach or
that Contractor's action or inaction was excusable, such termination shall be treated as
a termination in the public interest, and the rights and obligations of the Parties shall be
as if this Participating Addendum had been terminated in the public interest under §3.
E.
ii. Remedies Not Involving Termination
The State, in its discretion, may exercise one or more of the following additional
remedies:
a. Suspend Performance
Suspend Contractor’s performance with respect to all or any portion of the Work
pending corrective action as specified by the State without entitling Contractor to
an adjustment in price or cost or an adjustment in the performance schedule.
Contractor shall promptly cease performing Work and incurring costs in
accordance with the State’s directive, and neither the State nor any Purchasing
Entity shall be liable for costs incurred by Contractor after the suspension of
performance; however, Purchasing Entity is still liable for cost of Goods and
Services provided up until date of suspension.
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b. Removal
Demand immediate removal of any of Contractor’s employees, agents, or
Subcontractors from the Work whom the State deems incompetent, careless,
insubordinate, unsuitable, or otherwise unacceptable or whose continued relation
to this Participating Addendum is deemed by the State to be contrary to the public
interest or the State’s best interest.
c. Intellectual Property
Contractor shall, indemnify and defend the State against any third-party claim
alleging that a Contractor-developed or manufactured product or Service directly
infringes a United States patent or copyright (“Infringement Claim”), and
Contractor shall pay all damages finally awarded against the State by a court of
competent jurisdiction for an Infringement Claim, and at its option: (i) secure that
right to use such Work for the State, Purchasing Entity and Contractor; (ii) replace
the Work with non infringing Work or modify the Work so that it becomes
noninfringing; or, (iii) remove any infringing Work and grant the State a reo-rated
refund any amounts pre-paid for the infringing product if it is a software product,
or a credit if the product is equipment
Contractor’s duties under this section are conditioned upon (a) the State promptly
notifying Contractor in writing of the Infringement Claim; (b) Contractor having
primary control over the defense of the suit and all negotiations for its settlement
or compromise, and (c) the State cooperating with Contactor and if requested by
Contractor, providing reasonable assistance in the defense of the Infringement
Claim.
This Section provides the State’s sole and exclusive remedy and Contactor’s
entire liability in the event of an Infringement Claim.
B. Contractor’s Remedies
If the State is in breach of any provision of this Participating Addendum and does not cure
such breach, Contractor, following the notice and cure period in §13 and the dispute
resolution process in §15 shall have all remedies available at law and equity. If a Purchasing
Entity is in breach of a provision of an Order, Contractor shall have all remedies available to
it under that Order and available at law and equity.
C. Purchasing Entity’s Remedies
i. If Contractor is in breach under any provision of an Order by a Purchasing Entity, the
Purchasing Entity shall have all of the remedies listed in that Order, all remedies listed
in §14. A. ii above, all remedies listed here in §14.C and all other remedies available
by law or equity. The Purchasing Entity may exercise any or all of the remedies
available to it, in its discretion, concurrently or consecutively.
ii. If a Purchasing Entity gives Contractor notice of breach or terminates an Order because
of Contractor’s breach of that Order, Contractor shall provide notice to the State of that
breach or termination within 30 Business Days following Contractor’s receipt of that
notice of breach or termination.
iii. Payments and Damages
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a. Notwithstanding anything to the contrary, Purchasing Entities shall only pay
Contractor for accepted Work received as of the date of termination. Subject to
the provisions of Section 14 and 15, a Purchasing Entity may withhold any
amount that may be due Contractor as the Purchasing Entity deems necessary until
Contractor corrects its Work or to protect itself against loss including, without
limitation, loss as a result of outstanding liens and costs incurred by the
Purchasing Entity in procuring from third parties replacement Work as cover.
b. Notwithstanding any other remedial action by the State, Contractor shall remain
liable to the State or appropriate Purchasing Entity for any damages sustained by
the State or Purchasing Entity in connection with any breach by Contractor, and
the Purchasing Entity may withhold payment to Contractor for the purpose of
mitigating the Purchasing Entity’s damages.
A Purchasing Entity may deny payment to Contractor for Work not performed, or that
due to Contractor’s actions or inactions, cannot be performed or if they were performed
are reasonably of no value to the state; provided, that any denial of payment shall be
equal to the value of the obligations not performed.
15. DISPUTE RESOLUTION
A. Order Disputes, Termination and Resolution
i. If a dispute related to an Order arises between Contractor and a Purchasing Entity,
Contractor shall meet with the Purchasing Entity to attempt to resolve the issue. If
Contractor is unable to resolve the issue with the Purchasing Entity, then Contractor
may request assistance from the State by submitting a request in writing, which includes
the pertinent information about the dispute and the assistance sought by Contractor, in
accordance with §5 of the Participating Addendum. Nothing in this section shall be
interpreted as limiting the rights or obligations of Contractor, the State or any
Purchasing Entity under this Contract of any Order.
ii. A Purchasing Entity may terminate an Order if it determines that Contractor was in
breach of that Order. Termination of an Order shall not terminate any other Order or
this Participating Addendum. Termination of an Order does not relieve the Purchasing
Entity of obligation for payment of Goods and Services delivered by the Contractor.
iii. If a Purchasing Entity gives Contractor notice of breach or terminates an Order because
of Contractor’s breach of that Order, Contractor shall provide notice to the State of that
breach or termination within 30 Business Days following Contractor’s receipt of that
notice of breach or termination.
B. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of this
Participating Addendum which cannot be resolved by the designated Participating
Addendum primary contacts, as identified in §5 of the Participating Addendum, or through a
dispute on an Order shall be referred in writing to a senior departmental management staff
member designated by the State and a senior manager designated by Contractor for
resolution.
C. Resolution of Controversies arising under this Participating Addendum
If the initial resolution described in §15.B. fails to resolve the dispute within thirty (30)
Business Days, Contractor shall submit any alleged breach of this Participating Addendum
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by the State to the Procurement Official of the State Purchasing and Contracts Office as described
in in §24-102-202(3), C.R.S. for resolution in accordance with the provisions of §§24-109-
101.1 through 24-109-505, C.R.S., (the “Resolution Statutes”), except that if Contractor
wishes to challenge any decision rendered by the Procurement Official, Contractor’s
challenge shall be an appeal to the Executive Director of the Department of Personnel and
Administration, or their delegate, under the Resolution Statutes before Contractor pursues
any further action as permitted by such statutes. Except as otherwise stated in this Section,
all requirements of the Resolution Statutes shall apply including, without limitation, time
limitations.
16. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
Contractor assigns to the Purchasing Entity and its successors and assigns, the entire right,
title, and interest in and to all causes of action, either in law or in equity, for past, present, or
future infringement of intellectual property rights related to the Work Product and all works
based on, derived from, or incorporating the Work Product under an Order. Whether or not
Contractor is under contract with the State at the time, Contractor shall execute applications,
assignments, and other documents, and shall render all other reasonable assistance requested
by the State, to enable the Purchasing Entity to secure patents, copyrights, licenses and other
intellectual property rights related to the Work Product. To the extent that Work Product
would fall under the definition of “works made for hire” under 17 U.S.C.S. §101, the parties
intend the Work Product to be a work made for hire.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Participating Addendum, any pre-
existing State Records, State software, research, reports, studies, photographs, negatives or
other documents, drawings, models, materials, data and information shall be the exclusive
property of the State (collectively, “State Materials”). Contractor shall not use, willingly
allow, cause or permit Work Product or State Materials to be used for any purpose other than
the performance of Contractor’s obligations in this Participating Addendum without the prior
written consent of the State. Upon termination of this Participating Addendum for any
reason, Contractor shall provide all Work Product and State Materials to the State in a form
and manner as directed by the State.
C. Exclusive Property of Contractor
Contractor retains the exclusive rights, title, and ownership to any and all pre-existing
materials owned or licensed to Contractor including, but not limited to, all pre-existing
software, licensed products, associated source code, machine code, text images, audio and/or
video, and third-party materials, delivered by Contractor under the Contract, whether
incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Contractor
Property”). Contractor Property shall be licensed to the State as set forth in this Contract or a
State approved license agreement: (i) entered into as exhibits to this Contract; (ii) obtained
by the State from the applicable third-party vendor; or (iii) in the case of open source
software, the license terms set forth in the applicable open source license agreement.
17. OBLIGATIONS AND RIGHTS IN THE EVENT OF TERMINATION OF ORDER OR
CONTRACT
To the extent specified in any termination notice, Contractor shall not incur further
obligations or render further performance past the effective date of such notice, and shall
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terminate outstanding orders and subcontracts with third parties. However, Contractor shall
complete and deliver to Purchasing Entities all Work not cancelled by the termination notice,
and may incur obligations as necessary to do so within this Participating Addendum’s terms.
At the request of the State, Contractor shall assign to the appropriate Purchasing Entity all of
Contractor's rights, title, and interest in and to such terminated orders or subcontracts. Upon
termination, Contractor shall take timely, reasonable and necessary action to protect and
preserve property in the possession of Contractor in which the appropriate Purchasing Entity
has an interest. At the State or Purchasing Entity’s request, Contractor shall return materials
owned by the Purchasing Entity that Contractor possesses at the time of any termination.
Contractor shall deliver all completed Work Product to the appropriate Purchasing Entity at
the State or Purchasing Entity’s request.
18. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to Contractor under this Contract is $100,000 or greater, either
on the Effective Date or at any time thereafter, this section shall apply. Contractor agrees to be
governed by and comply with the provisions of §§24-102-206, 24-106-103, 24-106-106, and 24-
106-107, C.R.S. regarding the monitoring of vendor performance and the reporting of contract
information in the State’s contract management system (“Contract Management System” or
“CMS”). Contractor’s performance shall be subject to evaluation and review in accordance with
the terms and conditions of this Contract, Colorado statutes governing CMS, and State Fiscal Rules
and State Controller policies.
19. GENERAL PROVISIONS
A. Assignment
Contractor’s rights and obligations under this Participating Addendum are personal and may
not be transferred or assigned without the prior, written consent of the State. Any attempt at
assignment or transfer without such consent shall be void. Any assignment or transfer of
Contractor’s rights and obligations approved by the State shall be subject to the provisions of
this Participating Addendum.
B. Subcontracts
The Contractor shall provide the State with a list of all subcontractors providing services
pursuant to this Participating Addendum. All subcontracts entered into by Contractor in
connection with this Participating Addendum shall comply with all applicable federal and
state laws and regulations, shall provide that they are governed by the laws of the State of
Colorado, and shall be subject to all provisions of this Participating Addendum.
C. Binding Effect
Except as otherwise provided in §19.A., all provisions of this Participating Addendum,
including the benefits and burdens, shall extend to and be binding upon the Parties’ respective
successors and assigns.
D. Authority
Each Party represents and warrants to the other that the execution and delivery of this
Participating Addendum and the performance of such Party’s obligations have been duly
authorized.
E. Captions and References
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The captions and headings in this Participating Addendum are for convenience of reference
only, and shall not be used to interpret, define, or limit its provisions. All references in this
Participating Addendum to sections (whether spelled out or using the § symbol), subsections,
exhibits or other attachments, are references to sections, subsections, exhibits or other
attachments contained herein or incorporated as a part hereof, unless otherwise noted.
F. Counterparts
This Participating Addendum may be executed in multiple, identical, original counterparts,
each of which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
G. Entire Understanding
This Participating Addendum represents the complete integration of all understandings
between the Parties related to the Work, and all prior representations and understandings
related to the Work, oral or written, are merged into this Participating Addendum. Prior or
contemporaneous additions, deletions, or other changes to this Participating Addendum shall
not have any force or effect whatsoever, unless embodied herein.
H. Digital Signatures
If any signatory signs this agreement using a digital signature in accordance with the
Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of
digital signatures issued under the State Fiscal Rules, then any agreement or consent to use
digital signatures within the electronic system through which that signatory signed shall be
incorporated into this Contract by reference.
I. Modification
Except as otherwise provided in this Participating Addendum, any modification to this
Participating Addendum shall only be effective if agreed to in a formal amendment to this
Participating Addendum, properly executed and approved in accordance with applicable
Colorado State law and State Fiscal Rules. Modifications permitted under this Participating
Addendum, other than contract amendments, shall conform to the policies issued by the
Colorado State Controller.
J. Statutes, Regulations, Fiscal Rules, and Other Authority.
Any reference in this Participating Addendum to a statute, regulation, State Fiscal Rule, fiscal
policy or other authority shall be interpreted to refer to such authority then current, as may
have been changed or amended since the Effective Date of this Participating Addendum.
K. Severability
The invalidity or unenforceability of any provision of this Participating Addendum shall not
affect the validity or enforceability of any other provision of this Participating Addendum,
which shall remain in full force and effect, provided that the Parties can continue to perform
their obligations under this Participating Addendum in accordance with the intent of this
Participating Addendum.
L. Survival of Certain Contract Terms
Any provision of this Participating Addendum that imposes an obligation on the Contractor
or a Purchasing Entity after termination or expiration of this Participating Addendum shall
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survive the termination or expiration of this Participating Addendum and shall be enforceable
by the other Party.
M. Taxes
The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle
D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from
State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S.
(Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be
liable for the payment of any excise, sales, or use taxes, regardless of whether any political
subdivision of the State imposes such taxes on Contractor. Contractor shall be solely
responsible for any exemptions from the collection of excise, sales or use taxes that
Contractor may wish to have in place in connection with this Participating Addendum.
Contractor shall honor any tax exemption that any Purchasing Entity has, and shall not charge
any Purchasing Entity any excise, sales, or use taxes from which that Purchasing Entity is
exempt.
N. Third Party Beneficiaries
Except for a Purchasing Entity and/or the Parties’ respective successors and assigns described
in §19.A, this Participating Addendum does not and is not intended to confer any rights or
remedies upon any person or entity other than the Parties. Enforcement of this Participating
Addendum and all rights and obligations hereunder are reserved solely to the Parties. Any
services or benefits which third parties receive as a result of this Participating Addendum are
incidental to this Participating Addendum, and do not create any rights for such third parties.
O. Waiver
A Party’s failure or delay in exercising any right, power, or privilege under this Participating
Addendum, whether explicit or by lack of enforcement, shall not operate as a waiver, nor
shall any single or partial exercise of any right, power, or privilege preclude any other or
further exercise of such right, power, or privilege.
P. CORA Disclosure
To the extent not prohibited by federal law, this Participating Addendum and the performance
measures and standards required under §24-106-107, C.R.S., if any, are subject to public
release through the CORA.
Q. Standard and Manner of Performance
Contractor shall perform its obligations under this Participating Addendum in accordance
with the highest standards of care, skill and diligence in Contractor’s industry, trade, or
profession.
R. Licenses, Permits, and Other Authorizations.
Contractor shall secure, prior to the Effective Date, and maintain at all times during the term
of this Participating Addendum, at its sole expense, all licenses, certifications, permits, and
other authorizations required to perform its obligations under this Participating Addendum,
and shall ensure that all employees, agents and Subcontractors secure and maintain at all
times during the term of their employment, agency or subcontract, all license, certifications,
permits and other authorizations required to perform their obligations in relation to this
Participating Addendum.
S. Indemnification
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i. General Indemnification
Contractor shall indemnify, save, and hold harmless the State, its employees, agents
and assignees (the “Indemnified Parties”), against any and all costs, expenses, claims,
damages, liabilities, court awards and other amounts (including attorneys’ fees and
related costs) arising from actual third-party claim, demand, action or proceeding
(“Claim”) incurred by any of the Indemnified Parties in relation to any negligent, gross
negligence or willful misconduct by Contractor, or its employees, agents,
Subcontractors, or assignees in connection with its performance of duties in this
Participating Addendum. Contractor’s duties under this Section are conditioned upon:
(a) the State promptly notifying Contractor in writing of the Claim; (b) Contractor
having sole control of the defense of the suit and all negotiations for its settlement or
compromise; and (c) the State cooperating with Contractor and, if requested by
Contractor, providing reasonable assistance in the defense of the Claim.
ii. Confidential Information Indemnification
Disclosure or use of State Confidential Information by Contractor in violation of §10
may be cause for legal action by third parties against Contractor, the State, or their
respective agents. Contractor shall indemnify, save, and hold harmless the Indemnified
Parties, against any and all claims, damages, liabilities, losses, costs, expenses
(including attorneys’ fees and costs) arising from actual third-party claim, demand,
action or proceeding incurred by the State in relation to any negligent, gross negligence
act or omission or willful misconduct by Contractor, or its employees, agents, assigns,
or Subcontractors in violation of §10.
20. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in italics.
A. STATUTORY APPROVAL. §24-30-202(1), C.R.S.
This Contract shall not be valid until it has been approved by the Colorado State Controller
or designee. If this Contract is for a Major Information Technology Project, as defined in
§24-37.5-102(2.6), then this Contract shall not be valid until it has been approved by the
State’s Chief Information Officer or designee.
B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S.
Financial obligations of the State payable after the current State Fiscal Year are contingent
upon funds for that purpose being appropriated, budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of the State,
its departments, boards, commissions committees, bureaus, offices, employees and officials
shall be controlled and limited by the provisions of the Colorado Governmental Immunity
Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and
28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S.
No term or condition of this Contract shall be construed or interpreted as a waiver, express
or implied, of any of the immunities, rights, benefits, protections, or other provisions,
contained in these statutes.
D. INDEPENDENT CONTRACTOR
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Contractor shall perform its duties hereunder as an independent contractor and not as an
employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to
be an agent or employee of the State. Contractor shall not have authorization, express or
implied, to bind the State to any agreement, liability or understanding, except as expressly
set forth herein. Contractor and its employees and agents are not entitled to unemployment
insurance or workers compensation benefits through the State and the State shall not pay for
or otherwise provide such coverage for Contractor or any of its agents or employees.
Contractor shall pay when due all applicable employment taxes, income taxes and local head
taxes incurred pursuant to this Contract. Contractor shall (i) provide and keep in force
workers' compensation and unemployment compensation insurance in the amounts required
by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible
for its acts and those of its employees and agents.
E. COMPLIANCE WITH LAW.
Contractor shall comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to
discrimination and unfair employment practices.
F. CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the
interpretation, execution, and enforcement of this Contract. Any provision included or
incorporated herein by reference which conflicts with said laws, rules, and regulations shall
be null and void. All suits or actions related to this Contract shall be filed and proceedings
held in the State of Colorado and exclusive venue shall be in the City and County of Denver.
G. PROHIBITED TERMS.
Any term included in this Contract that requires the State to indemnify or hold Contractor
harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for
damages resulting from death, bodily injury, or damage to tangible property; or that conflicts
with this provision in any way shall be void ab initio. Nothing in this Contract shall be
construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this
Contract that limits Contractor’s liability that is not void under this section shall apply only
in excess of any insurance to be maintained under this Contract, and no insurance policy shall
be interpreted as being subject to any limitations of liability of this Contract.
H. SOFTWARE PIRACY PROHIBITION.
State or other public funds payable under this Contract shall not be used for the acquisition,
operation, or maintenance of computer software in violation of federal copyright laws or
applicable licensing restrictions. Contractor hereby certifies and warrants that, during the
term of this Contract and any extensions, Contractor has and shall maintain in place
appropriate systems and controls to prevent such improper use of public funds. If the State
determines that Contractor is in violation of this provision, the State may exercise any remedy
available at law or in equity or under this Contract, including, without limitation, immediate
termination of this Contract and any remedy consistent with federal copyright laws or
applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and
24-50-507, C.R.S.
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The signatories aver that to their knowledge, no employee of the State has any personal or
beneficial interest whatsoever in the service or property described in this Contract. Contractor
has no interest and shall not acquire any interest, direct or indirect, that would conflict in any
manner or degree with the performance of Contractor’s services and Contractor shall not
employ any person having such known interests.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-
202.4, C.R.S.
[Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the
State Controller may withhold payment under the State’s vendor offset intercept system for
debts owed to State agencies for: (i) unpaid child support debts or child support arrearages;
(ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et
seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher
Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and
(v) other unpaid debts owing to the State as a result of final agency determination or judicial
action. The State may also recover, at the State’s discretion, payments made to Contractor
in error for any reason, including, but not limited to, overpayments or improper payments,
and unexpended or excess funds received by Contractor by deduction from subsequent
payments under this Contract, deduction from any payment due under any other contracts,
grants or agreements between the State and Contractor, or by any other appropriate method
for collecting debts owed to the State.
K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S.
[Not applicable to agreements relating to the offer, issuance, or sale of securities,
investment advisory services or fund management services, sponsored projects,
intergovernmental agreements, or information technology services or products and
services] Contractor certifies, warrants, and agrees that it does not knowingly employ or
contract with an illegal alien who will perform work under this Contract and will confirm the
employment eligibility of all employees who are newly hired for employment in the United
States to perform work under this Contract, through participation in the E-Verify Program or
the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Contractor
shall not knowingly employ or contract with an illegal alien to perform work under this
Contract or enter into a contract with a Subcontractor that fails to certify to Contractor that
the Subcontractor shall not knowingly employ or contract with an illegal alien to perform
work under this Contract. Contractor (i) shall not use E-Verify Program or the program
procedures of the Colorado Department of Labor and Employment (“Department Program”)
to undertake pre-employment screening of job applicants while this Contract is being
performed, (ii) shall notify the Subcontractor and the contracting State agency or institution
of higher education within 3 days if Contractor has actual knowledge that a Subcontractor is
employing or contracting with an illegal alien for work under this Contract, (iii) shall
terminate the subcontract if a Subcontractor does not stop employing or contracting with the
illegal alien within 3 days of receiving the notice, and (iv) shall comply with reasonable
requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5),
C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in
the Department program, Contractor shall deliver to the contracting State agency, Institution
of Higher Education or political subdivision, a written, notarized affirmation, affirming that
Contractor has examined the legal work status of such employee, and shall comply with all
of the other requirements of the Department program. If Contractor fails to comply with any
requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency,
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institution of higher education or political subdivision may terminate this Contract for breach
and, if so terminated, Contractor shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S.
Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms
under penalty of perjury that Contractor (i) is a citizen or otherwise lawfully present in the
United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101,
et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103,
C.R.S. prior to the Effective Date of this Contract.
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Exhibit B Page 1
EXHIBIT B STATEMENT OF WORK
1. GOODS AND/OR SERVICES
For a description of what the Participating Addendum will provide, see Attachment of the Master
Agreement 00318, “Cost sheet”
2. OTHER PROJECT REQUIREMENTS
A. Delivery of Goods and Performance of Services
i. Contractor shall provide all Goods and perform all Services described in each Order.
ii. Unless specifically agreed to otherwise in an Order, Contractor shall deliver all Goods
under an Order in good, working and undamaged condition. All Goods shall be free on
board (“F.O.B.”) destination to the location specified in the Order.
iii. If a good in an Order is out of stock, Contractor may only provide a substitute good if
it has notified the Purchasing Entity for that Order, in writing, that the good is out of
stock and has received the Purchasing Entity’s approval to provide the substitute good.
Purchasing Entities may request additional information comparing the substitute good
with the original good in the Purchasing Entity’s sole discretion.
B. Additional Terms
Any additional terms and conditions on any invoice, statement, Contractor time sheet,
website, electronic license or use agreement or any other form, including, without limitation,
terms regarding indemnification, limitation of liability, cancellation fees, choice of law and
binding arbitration shall be void and unenforceable except to the extent that they are
specifically included in this Participating Addendum or an Order. The signature of any
employee of a Purchasing Entity on any such form shall be effective to establish receipt of
Goods or completion of Services and shall not make any term of that form enforceable.
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Exhibit C Page 1
EXHIBIT C PRODUCTS AND PRICE LIST
1. Contractor has been awarded the following categories:
PUBLIC SAFETY COMMUNICATIONS PRODUCTS, SERVICES, AND SOLUTIONS
2. The products and price list is located on the Contractor’s dedicated State website, hosted and
maintained by the Contractor, and is incorporated into this Participating Addendum by reference.
Changes in product and pricing must be approved by the lead state and shall be effective when
published on the dedicated state website.
.
A. Price Decreases and Ceiling Prices
The prices listed in this Exhibit C are Ceiling Prices, Contractor may offer lower prices to
Purchasing Entities, and Purchasing Entities may negotiate lower prices with Contractor,
without the review or approval of the State. Contractor shall not allow a Subcontractor to
charge an amount greater than the Ceiling Price for any Order.
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EXHIBIT D – HIPAA BUSINESS ASSOCIATE AGREEMENT
This HIPAA Business Associate Agreement (“Agreement”) between the State and Contractor is agreed to in
connection with, and as an exhibit to, the Contract. For purposes of this Agreement, the State is referred to as
“Covered Entity” and the Contractor is referred to as “Business Associate”. Unless the context clearly requires a
distinction between the Contract and this Agreement, all references to “Contract” shall include this Agreement.
1. Purpose
Covered Entity wishes to disclose information to Business Associate, which may include Protected Health
Information ("PHI"). The Parties intend to protect the privacy and security of the disclosed PHI in compliance
with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191 (1996) as
amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) enacted
under the American Recovery and Reinvestment Act of 2009 (“ARRA”) Pub. L. No. 111–5 (2009), implementing
regulations promulgated by the U.S. Department of Health and Human Services at 45 C.F.R. Parts 160, 162 and
164 (the “HIPAA Rules”) and other applicable laws, as amended. Prior to the disclosure of PHI, Covered Entity
is required to enter into an agreement with Business Associate containing specific requirements as set forth in, but
not limited to, Title 45, Sections 160.103, 164.502(e) and 164.504(e) of the Code of Federal Regulations
(“C.F.R.”) and all other applicable laws and regulations, all as may be amended.
2. Definitions
The following terms used in this Agreement shall have the same meanings as in the HIPAA Rules: Breach, Data
Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary,
Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident,
Subcontractor, Unsecured Protected Health Information, and Use.
The following terms used in this Agreement shall have the meanings set forth below:
a. Business Associate. “Business Associate” shall have the same meaning as the term “business
associate” at 45 C.F.R. 160.103, and shall refer to Contractor.
b. Covered Entity. “Covered Entity” shall have the same meaning as the term “covered entity” at 45
C.F.R. 160.103, and shall refer to the State.
c. Information Technology and Information Security. “Information Technology” and “Information
Security” shall have the same meanings as the terms “information technology” and “information
security”, respectively, in §24-37.5-102, C.R.S.
Capitalized terms used herein and not otherwise defined herein or in the HIPAA Rules shall have the meanings
ascribed to them in the Contract.
3. Obligations and Activities of Business Associate
d. Permitted Uses and Disclosures.
i. Business Associate shall use and disclose PHI only to accomplish Business Associate’s
obligations under the Contract.
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ii. To the extent Business Associate carries out one or more of Covered Entity’s obligations
under Subpart E of 45 C.F.R. Part 164, Business Associate shall comply with any and all
requirements of Subpart E that apply to Covered Entity in the performance of such obligation.
iii. Business Associate may disclose PHI to carry out the legal responsibilities of Business
Associate, provided, that the disclosure is Required by Law or Business Associate obtains
reasonable assurances from the person to whom the information is disclosed that:
A. the information will remain confidential and will be used or disclosed only as
Required by Law or for the purpose for which Business Associate originally
disclosed the information to that person, and;
B. the person notifies Business Associate of any Breach involving PHI of which it is
aware.
iv. Business Associate may provide Data Aggregation services relating to the Health Care
Operations of Covered Entity. Business Associate may de-identify any or all PHI created or
received by Business Associate under this Agreement, provided the de-identification
conforms to the requirements of the HIPAA Rules.
e. Minimum Necessary. Business Associate, its Subcontractors and agents, shall access, use, and
disclose only the minimum amount of PHI necessary to accomplish the objectives of the Contract, in
accordance with the Minimum Necessary Requirements of the HIPAA Rules including, but not
limited to, 45 C.F.R. 164.502(b) and 164.514(d).
f. Impermissible Uses and Disclosures.
i. Business Associate shall not disclose the PHI of Covered Entity to another covered entity
without the written authorization of Covered Entity.
ii. Business Associate shall not share, use, disclose or make available any Covered Entity PHI
in any form via any medium with or to any person or entity beyond the boundaries or
jurisdiction of the United States without express written authorization from Covered Entity.
g. Business Associate's Subcontractors.
i. Business Associate shall, in accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2),
ensure that any Subcontractors who create, receive, maintain, or transmit PHI on behalf of
Business Associate agree in writing to the same restrictions, conditions, and requirements
that apply to Business Associate with respect to safeguarding PHI.
ii. Business Associate shall provide to Covered Entity, on Covered Entity’s request, a list of
Subcontractors who have entered into any such agreement with Business Associate.
iii. Business Associate shall provide to Covered Entity, on Covered Entity’s request, copies of
any such agreements Business Associate has entered into with Subcontractors.
h. Access to System. If Business Associate needs access to a Covered Entity Information Technology
system to comply with its obligations under the Contract or this Agreement, Business Associate shall
request, review, and comply with any and all policies applicable to Covered Entity regarding such
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system including, but not limited to, any policies promulgated by the Office of Information
Technology and available at http://oit.state.co.us/about/policies.
i. Access to PHI. Business Associate shall, within ten days of receiving a written request from Covered
Entity, make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy
Covered Entity’s obligations under 45 C.F.R. 164.524.
j. Amendment of PHI.
i. Business Associate shall within ten days of receiving a written request from Covered Entity
make any amendment to PHI in a Designated Record Set as directed by or agreed to by
Covered Entity pursuant to 45 C.F.R. 164.526, or take other measures as necessary to satisfy
Covered Entity’s obligations under 45 C.F.R. 164.526.
ii. Business Associate shall promptly forward to Covered Entity any request for amendment of
PHI that Business Associate receives directly from an Individual.
k. Accounting Rights. Business Associate shall, within ten days of receiving a written request from
Covered Entity, maintain and make available to Covered Entity the information necessary for Covered
Entity to satisfy its obligations to provide an accounting of Disclosure under 45 C.F.R. 164.528.
l. Restrictions and Confidential Communications.
i. Business Associate shall restrict the Use or Disclosure of an Individual’s PHI within ten days
of notice from Covered Entity of:
(1) a restriction on Use or Disclosure of PHI pursuant to 45 C.F.R. 164.522; or
(2) a request for confidential communication of PHI pursuant to 45 C.F.R. 164.522.
ii. Business Associate shall not respond directly to an Individual’s requests to restrict the Use or
Disclosure of PHI or to send all communication of PHI to an alternate address.
iii. Business Associate shall refer such requests to Covered Entity so that Covered Entity can
coordinate and prepare a timely response to the requesting Individual and provide direction
to Business Associate.
m. Governmental Access to Records. Business Associate shall make its facilities, internal practices,
books, records, and other sources of information, including PHI, available to the Secretary for
purposes of determining compliance with the HIPAA Rules in accordance with 45 C.F.R. 160.310.
n. Audit, Inspection and Enforcement.
i. Business Associate shall obtain and update at least annually a written assessment performed
by an independent third party reasonably acceptable to Covered Entity, which evaluates the
Information Security of the applications, infrastructure, and processes that interact with the
Covered Entity data Business Associate receives, manipulates, stores and distributes. Upon
request by Covered Entity, Business Associate shall provide to Covered Entity the executive
summary of the assessment.
ii. Business Associate, upon the request of Covered Entity, shall fully cooperate with Covered
Entity’s efforts to audit Business Associate’s compliance with applicable HIPAA Rules. If,
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through audit or inspection, Covered Entity determines that Business Associate’s conduct
would result in violation of the HIPAA Rules or is in violation of the Contract or this
Agreement, Business Associate shall promptly remedy any such violation and shall certify
completion of its remedy in writing to Covered Entity.
o. Appropriate Safeguards.
i. Business Associate shall use appropriate safeguards and comply with Subpart C of 45 C.F.R.
Part 164 with respect to electronic PHI to prevent use or disclosure of PHI other than as
provided in this Agreement.
ii. Business Associate shall safeguard the PHI from tampering and unauthorized disclosures.
iii. Business Associate shall maintain the confidentiality of passwords and other data required
for accessing this information.
iv. Business Associate shall extend protection beyond the initial information obtained from
Covered Entity to any databases or collections of PHI containing information derived from
the PHI. The provisions of this section shall be in force unless PHI is de-identified in
conformance to the requirements of the HIPAA Rules.
p. Safeguard During Transmission.
i. Business Associate shall use reasonable and appropriate safeguards including, without
limitation, Information Security measures to ensure that all transmissions of PHI are
authorized and to prevent use or disclosure of PHI other than as provided for by this
Agreement.
ii. Business Associate shall not transmit PHI over the internet or any other insecure or open
communication channel unless the PHI is encrypted or otherwise safeguarded with a FIPS-
compliant encryption algorithm.
q. Reporting of Improper Use or Disclosure and Notification of Breach.
i. Business Associate shall, as soon as reasonably possible, but immediately after discovery of
a Breach, notify Covered Entity of any use or disclosure of PHI not provided for by this
Agreement, including a Breach of Unsecured Protected Health Information as such notice is
required by 45 C.F.R. 164.410 or a breach for which notice is required under §24-73-103,
C.R.S.
ii. Such notice shall include the identification of each Individual whose Unsecured Protected
Health Information has been, or is reasonably believed by Business Associate to have been,
accessed, acquired, or disclosed during such Breach.
iii. Business Associate shall, as soon as reasonably possible, but immediately after discovery of
any Security Incident that does not constitute a Breach, notify Covered Entity of such
incident.
iv. Business Associate shall have the burden of demonstrating that all notifications were made
as required, including evidence demonstrating the necessity of any delay.
r. Business Associate’s Insurance and Notification Costs.
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i. Business Associate shall bear all costs of a Breach response including, without limitation,
notifications, and shall maintain insurance to cover:
(1) loss of PHI data;
(2) Breach notification requirements specified in HIPAA Rules and in §24-73-103,
C.R.S.; and
(3) claims based upon alleged violations of privacy rights through improper use or
disclosure of PHI.
ii. All such policies shall meet or exceed the minimum insurance requirements of the Contract
or otherwise as may be approved by Covered Entity (e.g., occurrence basis, combined single
dollar limits, annual aggregate dollar limits, additional insured status, and notice of
cancellation).
iii. Business Associate shall provide Covered Entity a point of contact who possesses relevant
Information Security knowledge and is accessible 24 hours per day, 7 days per week to assist
with incident handling.
iv. Business Associate, to the extent practicable, shall mitigate any harmful effect known to
Business Associate of a Use or Disclosure of PHI by Business Associate in violation of this
Agreement.
s. Subcontractors and Breaches.
i. Business Associate shall enter into a written agreement with each of its Subcontractors and
agents, who create, receive, maintain, or transmit PHI on behalf of Business Associate. The
agreements shall require such Subcontractors and agents to report to Business Associate any
use or disclosure of PHI not provided for by this Agreement, including Security Incidents and
Breaches of Unsecured Protected Health Information, on the first day such Subcontractor or
agent knows or should have known of the Breach as required by 45 C.F.R. 164.410.
ii. Business Associate shall notify Covered Entity of any such report and shall provide copies of
any such agreements to Covered Entity on request.
t. Data Ownership.
i. Business Associate acknowledges that Business Associate has no ownership rights with
respect to the PHI.
ii. Upon request by Covered Entity, Business Associate immediately shall provide Covered
Entity with any keys to decrypt information that the Business Association has encrypted and
maintains in encrypted form, or shall provide such information in unencrypted usable form.
u. Retention of PHI. Except upon termination of this Agreement as provided in Section 5 below,
Business Associate and its Subcontractors or agents shall retain all PHI throughout the term of this
Agreement, and shall continue to maintain the accounting of disclosures required under Section 1.k
above, for a period of six years.
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4. Obligations of Covered Entity
a. Safeguards During Transmission. Covered Entity shall be responsible for using appropriate
safeguards including encryption of PHI, to maintain and ensure the confidentiality, integrity, and
security of PHI transmitted pursuant to this Agreement, in accordance with the standards and
requirements of the HIPAA Rules.
b. Notice of Changes.
i. Covered Entity maintains a copy of its Notice of Privacy Practices on its website. Covered
Entity shall provide Business Associate with any changes in, or revocation of, permission to
use or disclose PHI, to the extent that it may affect Business Associate’s permitted or required
uses or disclosures.
ii. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of
PHI to which Covered Entity has agreed in accordance with 45 C.F.R. 164.522, to the extent
that it may affect Business Associate’s permitted use or disclosure of PHI.
5. Termination
a. Breach.
i. In addition to any Contract provision regarding remedies for breach, Covered Entity shall
have the right, in the event of a breach by Business Associate of any provision of this
Agreement, to terminate immediately the Contract, or this Agreement, or both.
ii. Subject to any directions from Covered Entity, upon termination of the Contract, this
Agreement, or both, Business Associate shall take timely, reasonable, and necessary action
to protect and preserve property in the possession of Business Associate in which Covered
Entity has an interest.
b. Effect of Termination.
i. Upon termination of this Agreement for any reason, Business Associate, at the option of
Covered Entity, shall return or destroy all PHI that Business Associate, its agents, or its
Subcontractors maintain in any form, and shall not retain any copies of such PHI.
ii. If Covered Entity directs Business Associate to destroy the PHI, Business Associate shall
certify in writing to Covered Entity that such PHI has been destroyed.
iii. If Business Associate believes that returning or destroying the PHI is not feasible, Business
Associate shall promptly provide Covered Entity with notice of the conditions making return
or destruction infeasible. Business Associate shall continue to extend the protections of
Section 3 of this Agreement to such PHI, and shall limit further use of such PHI to those
purposes that make the return or destruction of such PHI infeasible.
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6. Injunctive Relief
Covered Entity and Business Associate agree that irreparable damage would occur in the event Business Associate
or any of its Subcontractors or agents use or disclosure of PHI in violation of this Agreement, the HIPAA Rules
or any applicable law. Covered Entity and Business Associate further agree that money damages would not
provide an adequate remedy for such Breach. Accordingly, Covered Entity and Business Associate agree that
Covered Entity shall be entitled to injunctive relief, specific performance, and other equitable relief to prevent or
restrain any Breach or threatened Breach of and to enforce specifically the terms and provisions of this Agreement.
7. Limitation of Liability
Any provision in the Contract limiting Contractor’s liability shall not apply to Business Associate’s liability under
this Agreement, which shall not be limited.
8. Disclaimer
Covered Entity makes no warranty or representation that compliance by Business Associate with this Agreement
or the HIPAA Rules will be adequate or satisfactory for Business Associate’s own purposes. Business Associate
is solely responsible for all decisions made and actions taken by Business Associate regarding the safeguarding
of PHI.
9. Certification
Covered Entity has a legal obligation under HIPAA Rules to certify as to Business Associate’s Information
Security practices. Covered Entity or its authorized agent or contractor shall have the right to examine Business
Associate’s facilities, systems, procedures, and records, at Covered Entity’s expense, if Covered Entity determines
that examination is necessary to certify that Business Associate’s Information Security safeguards comply with
the HIPAA Rules or this Agreement.
10. Amendment
a. Amendment to Comply with Law. The Parties acknowledge that state and federal laws and regulations
relating to data security and privacy are rapidly evolving and that amendment of this Agreement may
be required to provide procedures to ensure compliance with such developments.
i. In the event of any change to state or federal laws and regulations relating to data security
and privacy affecting this Agreement, the Parties shall take such action as is necessary to
implement the changes to the standards and requirements of HIPAA, the HIPAA Rules
and other applicable rules relating to the confidentiality, integrity, availability and
security of PHI with respect to this Agreement.
ii. Business Associate shall provide to Covered Entity written assurance satisfactory to
Covered Entity that Business Associate shall adequately safeguard all PHI, and obtain
written assurance satisfactory to Covered Entity from Business Associate’s
Subcontractors and agents that they shall adequately safeguard all PHI.
iii. Upon the request of either Party, the other Party promptly shall negotiate in good faith the
terms of an amendment to the Contract embodying written assurances consistent with the
standards and requirements of HIPAA, the HIPAA Rules, or other applicable rules.
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iv. Covered Entity may terminate this Agreement upon 30 days’ prior written notice in the event
that:
(1) Business Associate does not promptly enter into negotiations to amend the Contract
and this Agreement when requested by Covered Entity pursuant to this Section; or
(2) Business Associate does not enter into an amendment to the Contract and this
Agreement, which provides assurances regarding the safeguarding of PHI sufficient,
in Covered Entity’s sole discretion, to satisfy the standards and requirements of the
HIPAA, the HIPAA Rules and applicable law.
b. Amendment of Appendix. The Appendix to this Agreement may be modified or amended by the
mutual written agreement of the Parties, without amendment of this Agreement. Any modified or
amended Appendix agreed to in writing by the Parties shall supersede and replace any prior version
of the Appendix.
11. Assistance in Litigation or Administrative Proceedings
Covered Entity shall provide written notice to Business Associate if litigation or administrative proceeding is
commenced against Covered Entity, its directors, officers, or employees, based on a claimed violation by Business
Associate of HIPAA, the HIPAA Rules or other laws relating to security and privacy or PHI. Upon receipt of such
notice and to the extent requested by Covered Entity, Business Associate shall, and shall cause its employees,
Subcontractors, or agents assisting Business Associate in the performance of its obligations under the Contract to,
assist Covered Entity in the defense of such litigation or proceedings. Business Associate shall, and shall cause
its employees, Subcontractor’s and agents to, provide assistance, to Covered Entity, which may include testifying
as a witness at such proceedings. Business Associate or any of its employees, Subcontractors or agents shall not
be required to provide such assistance if Business Associate is a named adverse party.
12. Interpretation and Order of Precedence
Any ambiguity in this Agreement shall be resolved in favor of a meaning that complies and is consistent with the
HIPAA Rules. In the event of an inconsistency between the Contract and this Agreement, this Agreement shall
control. This Agreement supersedes and replaces any previous, separately executed HIPAA business associate
agreement between the Parties.
13. Survival
Provisions of this Agreement requiring continued performance, compliance, or effect after termination shall
survive termination of this contract or this agreement and shall be enforceable by Covered Entity.
14. APPENDIX D.1. TO HIPAA BUSINESS ASSOCIATE AGREEMENT, attached to this Exhibit
is incorporated and made part hereof.
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APPENDIX D.1 TO HIPAA BUSINESS ASSOCIATE AGREEMENT
This Appendix (“Appendix”) to the HIPAA Business Associate Agreement (“Agreement”) is s an appendix to
the Contract and the Agreement. For the purposes of this Appendix, defined terms shall have the meanings
ascribed to them in the Agreement and the Contract.
Unless the context clearly requires a distinction between the Contract, the Agreement, and this Appendix, all
references to “Contract” or “Agreement” shall include this Appendix.
1. Purpose
This Appendix sets forth additional terms to the Agreement. Any sub-section of this Appendix marked as
“Reserved” shall be construed as setting forth no additional terms.
2. Additional Terms
a. Additional Permitted Uses. In addition to those purposes set forth in the Agreement, Business
Associate may use PHI for the following additional purposes:
i. Reserved.
a. Additional Permitted Disclosures. In addition to those purposes set forth in the Agreement, Business
Associate may disclose PHI for the following additional purposes:
i. Reserved.
c. Approved Subcontractors. Covered Entity agrees that the following Subcontractors or agents of
Business Associate may receive PHI under the Agreement:
i. Reserved.
d. Definition of Receipt of PHI. Business Associate’s receipt of PHI under this Contract shall be deemed
to occur, and Business Associate’s obligations under the Agreement shall commence, as follows:
i. Reserved.
e. Additional Restrictions on Business Associate. Business Associate agrees to comply with the
following additional restrictions on Business Associate’s use and disclosure of PHI under the
Contract:
i. Reserved.
f. Additional Terms. Business Associate agrees to comply with the following additional terms under the
Agreement:
i. Reserved.
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EXHIBIT E
SAFEGUARDING REQUIREMENTS FOR FEDERAL TAX INFORMATION
This Addendum regarding Safeguarding Requirements for Federal Tax Information (“Addendum”)1 is an essential
part of the agreement between the State and Contractor as described in the Contract to which this Addendum is
attached. Unless the context clearly requires a distinction between the Contract and this Addendum, all references
to “Contract” shall include this Addendum.
1. PERFORMANCE
In performance of this Contract, the Contractor agrees to comply with and assume responsibility for compliance
by Contractor’s employees with the following requirements:
A. All work will be done under the supervision of the Contractor or the Contractor’s employees.
B. The Contractor and the Contractor’s employees with access to or who use FTI must meet the background
check requirements defined in IRS Publication 1075 and Colorado Revised Statutes 24-50-1002.
C. Any return or return information made available in any format shall be used only for the purpose of carrying
out the provisions of this Contract. Information contained in such material will be treated as
confidential and will not be divulged or made known in any manner to any person except as may
be necessary in the performance of this Contract. Disclosure to anyone other than an officer or
employee of the Contractor will be prohibited.
D. All returns and return information will be accounted for upon receipt and properly stored before, during,
and after processing. In addition, all related output will be given the same level of protection as
required for the source material.
E. The Contractor certifies that the data processed during the performance of this Contract will be completely
purged from all data storage components of Contractor’s computer facility, and no output will be
retained by the Contractor at the time the work is completed. If immediate purging of all data storage
components is not possible, the Contractor certifies that any FTI remaining in any storage
component will be safeguarded to prevent unauthorized disclosures.
F. Any spoilage or any intermediate hard copy printout that may result during the processing of FTI will be
given to the State or the State’s designee. When this is not possible, the Contractor will be
responsible for the destruction of the spoilage or any intermediate hard copy printouts, and will
provide the State or the State’s designee with a statement containing the date of destruction,
description of material destroyed, and the method used.
G. All computer systems receiving, processing, storing or transmitting FTI must meet the requirements
defined in IRS Publication 1075. To meet functional and assurance requirements, the security
features of the environment must provide for the managerial, operational, and technical controls.
1 The language of this Addendum is derived from IRS Publication 1075, Tax Information Security Guidelines For Federal,
State and Local Agencies, Exhibit 7 – Safeguarding Contract Language, “Contract Language for Technology Services.” This
Addendum is not exhaustive of all requirements contained in Publication 1075. By agreeing to this Addendum, Contractor
agrees to comply with all applicable requirements in Publication 1075 or described on the website of the IRS Safeguards
Program, located at www.irs.gov/privacy-disclosure/safeguards-program.
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All security features must be available and activated to protect against unauthorized use of and
access to FTI.
H. No work involving FTI furnished under this Contract will be subcontracted without prior written approval
of the State, by and through the contracting agency and the Office of Information Technology, and
the IRS.2
I. The Contractor will maintain a list of employees’ authorized access. Such list will be provided to the State
and, upon request, to the IRS reviewing office.
J. The Contractor will not use live FTI in a test environment or utilize a cloud computing model that receives
processes, stores, or transmits FTI without express written authorization from the State.3
K. The Contractor will maintain the confidentiality of all taxpayer information provided by the State or
learned in the course of Contractor’s duties under this Contract in accordance with safeguards set
forth under Colorado Revised Statutes § 39-21-113(4), as amended.
L. The Contractor agrees to comply with the following additional requirements in performance of this
Contract:
None
M. The State will have the right to void the Contract if the Contractor fails to provide the safeguards described
above.
2. CRIMINAL/CIVIL SANCTIONS
A. Each officer or employee of any person4 to whom returns or return information is or may be disclosed will
be notified in writing by such person that returns or return information disclosed to such officer or
employee can be used only for a purpose and to the extent authorized herein, and that further
disclosure of any such returns or return information for a purpose or to an extent unauthorized
herein constitutes a felony punishable upon conviction by a fine of as much as $5,000 or
imprisonment for as long as 5 years, or both, together with the costs of prosecution. Such person
shall also notify each such officer and employee that any such unauthorized further disclosure of
returns or return information may also result in an award of civil damages against the officer or
employee in an amount not less than $1,000 with respect to each instance of unauthorized
disclosure. These penalties are prescribed by IRCs 7213 and 7431 and set forth at 26 CFR
301.6103(n)-1.
B. Each officer or employee of any person to whom returns or return information is or may be disclosed shall
be notified in writing by such person that any return or return information made available in any
format shall be used only for the purpose of carrying out the provisions of this Contract. Information
contained in such material shall be treated as confidential and shall not be divulged or made known
in any manner to any person except as may be necessary in the performance of the Contract.
Inspection by or disclosure to anyone without an official need to know constitutes a criminal
2 see IRS Publication 1075, Exhibit 6 – Contractor 45-Day Notification Procedures.
3 see IRS Publication 1075, Section 9 and https://www.irs.gov/privacy-disclosure/use-of-live-fti-in-system-testing .
4 The term “person” is used in this Section 2 as it is used in Title 26 of the United States Code and related regulations. The
term “person” means a person or entity, including “an individual, a trust, estate, partnership, association, company or
corporation.” 26 U.S.C. § 7701(a)(1).
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misdemeanor punishable upon conviction by a fine of as much as $1,000 or imprisonment for as
long as 1 year, or both, together with the costs of prosecution. Such person shall also notify each
such officer and employee that any such unauthorized inspection or disclosure of returns or return
information may also result in an award of civil damages against the officer or employee in an
amount equal to the sum of the greater of $1,000 for each act of unauthorized inspection or
disclosure with respect to which such defendant is found liable or the sum of the actual damages
sustained by the plaintiff as a result of such unauthorized inspection or disclosure plus in the case
of a willful inspection or disclosure which is the result of gross negligence, punitive damages, plus
the costs of the action. These penalties are prescribed by IRC 7213A and 7431 and set forth at 26
CFR 301.6103(n)-1.
C. Additionally, Contractor shall inform its officers and employees of the penalties for improper disclosure
imposed by the Privacy Act of 1974, 5 U.S.C. 552a. Specifically, 5 U.S.C. 552a(i)(1), which is
made applicable to Contractor by 5 U.S.C. 552a(m)(1), provides that any officer or employee of a
Contractor, who by virtue of his/her employment or official position, has possession of or access to
State records which contain individually identifiable information, the disclosure of which is
prohibited by the Privacy Act or regulations established thereunder, and who knowing that
disclosure of the specific material is prohibited, willfully discloses the material in any manner to
any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more
than $5,000.
D. Granting a Contractor access to FTI must be preceded by certifying that each individual understands the
State’s security policy and procedures for safeguarding FTI. Contractors must maintain their
authorization to access FTI through annual recertification. The initial certification and
recertification must be documented and placed in the State’s files for review. As part of the
certification and at least annually afterwards, Contractors must be advised of the provisions of IRCs
7431, 7213, and 7213A (see Exhibit 4, Sanctions for Unauthorized Disclosure, and Exhibit 5, Civil
Damages for Unauthorized Disclosure). The training provided before the initial certification and
annually thereafter must also cover the incident response policy and procedure for reporting
unauthorized disclosures and data breaches.5 For both the initial certification and the annual
certification, the Contractor must sign, either with ink or electronic signature, a confidentiality
statement certifying their understanding of the security requirements.
3. INSPECTION
The IRS and the State, with 24-hour notice, shall have the right to send its inspectors into the offices and plants
of the Contractor to inspect facilities and operations performing any work with FTI under this Contract for
compliance with requirements defined in IRS Publication 1075. The IRS’s right of inspection shall include the
use of manual and/or automated scanning tools to perform compliance and vulnerability assessments of
information technology (IT) assets that access, store, process, or transmit FTI. On the basis of such inspection,
corrective actions may be required in cases where the Contractor is found to be noncompliant with Contract
safeguards.
5 see IRS Publication 1075, Section 10 or www.irs.gov/privacy-disclosure/reporting-improper-inspections-or-disclosures.
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PARTICIPATING ADDENDUM EXHIBIT F, INFORMATION TECHNOLOGY
PROVISIONS
This Exhibit regarding Information Technology Provisions (the “Exhibit”) is an essential part of the
agreement between the State and Contractor as described in the Contract to which this Exhibit is
attached. Unless the context clearly requires a distinction between the Contract and this Exhibit, all
references to “Contract” shall include this Exhibit.
1. PROTECTION OF SYSTEM DATA
A. In addition to the requirements of the main body of this Contract, if Contractor or any
Subcontractor is given access to State Information Technology resources or State Records
by the State or its agents in connection with Contractor’s performance under the Contract,
Contractor shall protect such Information Technology resources and State Records in
accordance with this Exhibit. To the extent applicable to the Subcontractor’s scope of
work performed in furtherance of the contract, all provisions of this Exhibit that refer to
Contractor shall apply equally to any Subcontractor performing work in connection with
the Contract.
B. The terms of this Exhibit shall apply to the extent that Contractor’s obligations under this
Contract include the provision of Information Technology goods or services to the State.
Information Technology is computer-based equipment and related services designed for
the storage, manipulation, and retrieval of data, and includes, without limitation:
i. Any technology, equipment, or related services described in §24-37.5-102(2),
C.R.S.;
ii. The creation, use, processing, disclosure, transmission, or disposal of State
Records, including any data or code, in electronic form; and
iii. Other existing or emerging technology, equipment, or related services that may
require knowledge and expertise in Information Technology.
C. To the extent the State has purchased the services listed in this Section, Contractor shall,
and shall cause its Subcontractors to meet all of the following:
i. Provide physical and logical protection for all hardware, software, applications,
and data that meets or exceeds industry standards and the requirements of this
Contract.
ii. Maintain network, system, and application security, which includes, but is not
limited to, network firewalls, intrusion detection (host and network), annual
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security testing, and improvements or enhancements consistent with evolving
industry standards.
iii. Comply with State and federal rules and regulations related to overall security,
privacy, confidentiality, integrity, availability, and auditing.
iv. Provide that security is not compromised by unauthorized access to workspaces,
computers, networks, software, databases, or other physical or electronic
environments.
v. Promptly report all Incidents, including Incidents that do not result in
unauthorized disclosure or loss of data integrity, to a designated representative
of the State’s Office of Information Security (“OIS”).
vi. Comply with all rules, policies, procedures, and standards issued by the
Governor’s Office of Information Technology (“OIT”), including change
management, project lifecycle methodology and governance, technical
standards, documentation, and other requirements posted at
www.oit.state.co.us/about/policies.
D. Subject to Contractor’s reasonable access security requirements and upon reasonable
prior notice, Contractor shall provide the State with scheduled access for the purpose of
inspecting and monitoring access and use of State Records, maintaining State systems,
and evaluating physical and logical security control effectiveness.
E. Contractor shall perform current background checks in a form reasonably acceptable to
the State on all of its respective employees and agents performing services or having
access to State Records provided under this Contract, including any Subcontractors or the
employees of Subcontractors. A background check performed within 30 days prior to the
date such employee or agent begins performance or obtains access to State Records shall
be deemed to be current.
i. Upon request, Contractor shall provide notice to a designated representative for
the State indicating that background checks have been performed. Such notice
will inform the State of any action taken in response to such background checks,
including any decisions not to take action in response to negative information
revealed by a background check.
ii. If Contractor will have access to Federal Tax Information under the Contract,
Contractor shall agree to the State’s requirements regarding Safeguarding
Requirements for Federal Tax Information and shall comply with the
background check requirements defined in IRS Publication 1075 and §24-50-
1002, C.R.S.
2. DATA HANDLING
A. Contractor may not maintain or forward these State Records to or from any other facility
or location, except for the authorized and approved purposes of backup and disaster
recovery purposes, without the prior written consent of the State. Contractor may not
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maintain State Records in any data center or other storage location outside the United
States for any purpose without the prior express written consent of OIS.
B. Except for as needed for support services, Contractor shall not allow remote access to
State Records from outside the United States, including access by Contractor’s employees
or agents, without the prior express written consent of OIS. Contractor shall communicate
any request regarding non-U.S. access to State Records to the Security and Compliance
Representative for the State. The State shall have sole discretion to grant or deny any such
request.
C. Upon request by the State made any time prior to 60 days following the termination of
this Contract for any reason, whether or not the Contract is expiring or terminating,
Contractor shall make available to the State a complete download file of all State data.
i. This download file shall be made available to the State within 10 Business Days
of the State’s request, shall be encrypted and appropriately authenticated, and
shall contain, without limitation, all State Records, Work Product, and system
schema and transformation definitions, or delimited text files with documents,
detailed schema definitions along with attachments in its native format.
ii. Upon the termination of Contractor’s provision of data processing services,
Contractor shall, as directed by the State, return all State Records provided by
the State to Contractor, and the copies thereof, to the State or destroy all such
State Records and certify to the State that it has done so. If any legal obligation
imposed upon Contractor prevents it from returning or destroying all or part of
the State Records provided by the State to Contractor, Contractor shall
guarantee the confidentiality of all State Records provided by the State to
Contractor and will not actively process such data anymore. Contractor shall not
interrupt or obstruct the State’s ability to access and retrieve State Records
stored by Contractor.
D. The State retains the right to use the established operational services to access and retrieve
State Records stored on Contractor’s infrastructure at its sole discretion and at any time.
Upon request of the State or of the supervisory authority, Contractor shall submit its data
processing facilities for an audit of the measures referred to in this Exhibit in accordance
with the terms of this Contract.
3. COMPLIANCE
A. In addition to the compliance obligations imposed by the main body of the Contract,
Contractor shall comply with:
i. To the extent applicable to the products being sold herein, all information security
and privacy obligations imposed by any federal, state, or local statute or
regulation, or by any specifically incorporated industry standards or guidelines,
as applicable based on the classification of the data relevant to Contractor’s
performance under the Contract. Such obligations may arise from:
a. Health Information Portability and Accountability Act (HIPAA)
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b. IRS Publication 1075
c. Payment Card Industry Data Security Standard (PCI-DSS)
d. FBI Criminal Justice Information Service Security Addendum
e. CMS Minimum Acceptable Risk Standards for Exchanges
f. Electronic Information Exchange Security Requirements and Procedures
For State and Local Agencies Exchanging Electronic Information With
The Social Security Administration
B. Contractor shall implement and maintain all appropriate administrative, physical,
technical, and procedural safeguards necessary and appropriate to ensure compliance with
the standards and guidelines applicable to Contractor’s performance under the Contract.
C. Contractor shall allow the State reasonable access and shall provide the State with
information reasonably required to assess Contractor’s compliance. Such access and
information shall include to the extent available:
i. An annual SOC2 Type II audit including, at a minimum, the Trust Principles of
Security, Confidentiality, and Availability, or an alternative audit recommended
by OIS; or
ii. The performance of security audit and penetration tests, as requested by OIS.
D. To the extent Contractor controls or maintains information systems used in connection
with State Records, Contractor will provide OIS with the results of all security assessment
activities when conducted on such information systems, including any code-level
vulnerability scans, application level risk assessments, and other security assessment
activities as required by this Contract or reasonably requested by OIS. Contractor will
make reasonable efforts to remediate any vulnerabilities or will request a security
exception from the State. The State will work with Contractor and OIS to prepare any
requests for exceptions from the security requirements described in this Contract and its
Exhibits, including mitigating controls and other factors, and OIS will consider such
requests in accordance with their policies and procedures referenced herein.
4. TRANSITION OF SERVICES
Upon request by the State prior to expiration or earlier termination of this Contract or any
Services provided in this Contract, Contractor shall provide reasonable and necessary
assistance to accomplish a complete transition of the Services from Contractor to the State
or any replacement provider designated solely by the State without any interruption of or
adverse impact on the Services. Contractor shall cooperate fully with the State or any
successor provider and shall promptly take all steps required to assist in effecting a
complete transition of the Services designated by the State. All services related to such
transition shall be performed at no additional cost beyond what would be paid for the
Services in this Contract.
5. LICENSE OR USE AUDIT RIGHTS
A. To the extent that Contractor, through this Contract or otherwise as related to the subject
matter of this Contract, has granted to the State any license or otherwise limited
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permission to use any Contractor Property, subject to the Motorola Software License
Agreement, the terms of this section shall apply.
B. Contractor shall have the right, at any time during and throughout the Contract Term, but
not more than once per Fiscal Year, to request via written notice in accordance with the
notice provisions of the Contract that the State audit its use of and certify as to its
compliance with any applicable license or use restrictions and limitations contained in
this Contract (an “Audit Request”). The Audit Request shall specify the time period to be
covered by the audit, which shall not include any time periods covered by a previous
audit. The State shall complete the audit and provide certification of its compliance to
Contractor (“Audit Certification”) within 120 days following the State’s receipt of the
Audit Request.
C. If upon receipt of the State’s Audit Certification, the Parties reasonably determine that:
(i) the State’s use of licenses, use of software, use of programs, or any other use during
the audit period exceeded the use restrictions and limitations contained in this Contract
(“Overuse”) and (ii) the State would have been or is then required to purchase additional
maintenance and/or services (“Maintenance”), Contractor shall provide written notice to
the State in accordance with the notice provisions of the Contract identifying any Overuse
or required Maintenance and request that the State bring its use into compliance with such
use restrictions and limitations.
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MEMORANDUM
TO:Mayor and City Council
FROM:Justin Forman, Utilities Director
Phil Overeynder, Utilities Special Projects
THRU:Tyler Christoff, Assistant City Manager
DATE OF MEMO: November 22, 2024
MEETING DATE:December 3, 2024
RE:Federal Grant Official Resolution Requirement – Resolution
#134 U.S. Bureau of Reclamation–Ruedi Hydroelectric
Powerplant Upgrades and Additions
REQUEST OF COUNCIL: The City of Aspen Electric Utility applied for the above federal
grant through the U.S. Bureau of Reclamation on Thursday, November 7, 2024. Staff is
requesting approval of Resolution #134, Series of 2024, which is a requirement of this
federal grant submittal.Aspen is pursuing the addition of a second 1.2 MW turbine to
increase facility capacity up to its 5000 KW nameplate.
PREVIOUS COUNCIL ACTION: During a June 13, 2022, work session, staff was
directed to continue working on project design as well as to initiate federal licensing
related through the Federal Energy Regulatory Commission (FERC) to the addition of a
second turbine at the Ruedi powerplant. In providing this direction, Council was aware
that federal funding required would be contingent on completing licensing activities that
could otherwise slow up project development. Optimizing the amount of energy
generation from water releases at Ruedi has long been a major reason that Aspen’s
electric rates are competitive, reliability of service is high, and contributes to grid reliability.
As part of the adoption of the 2024 Electric Fund Long Range Plan, Council has
appropriated funds for upgrading the existing powerplant equipment, which will extend
the life of the project. These planned expenses can be used towards the Bureau of
Reclamation’s local matching requirements.
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BACKGROUND: Over the 40-year life of the Ruedi powerplant, energy production has
diminished to less than 70% of its original design level. Technical and Financial feasibility
studies demonstrated that the lost energy production can be restored at a cost that
results in net savings to Aspen when compared to the current practice of purchasing the
same amount of wholesale energy from MEAN. The completion of the August 2024
submission to FERC (Application to Amend the current major license) places Aspen in the
position to move to the next step in the development process and to qualify for federal
funding. Federal funding decisions are expected to occur early in 2025.Finalizinglicensing,
planning, and design effortsare expected to follow the decisionon funding. Staffpreviously
indicated that it would advise Council on meaningful and actionable items during this
process. Staff will return to Council with any contract obligations, procurement decisions,
or general guidance or direction on thisproject.Full information about the FERC application
can be found at https://www.aspencommunityvoice.com/ruedi. Staff intends to provide
Council an update on the FERC efforts for both Ruedi and Maroon Creek in a Winter 2025
work session.
If the City receives this grant in 2025, the Electric Utility will include the remaining required
local match for the Ruedi Hydroelectric Powerplant project in the Electric Fund’s Capital
Plan for 2026, 2027, and 2028.
FINANCIAL IMPACTS:The City Electric Fund will fund the non-Federal share of the
total project costs as shown below if the City receives the requested $4,879,155 Federal
grant from the U.S. Bureau of Reclamation. The Electric Fund has sufficient reserves to
finance their identified portion of this project. A new electric capital account will be created
to manage this project and grant.
Total Project Cost: Summary of Federal and Non-Federal Funding
Sources
Funding Source Amount
Costs to be reimbursed with the
requested Federal Funding $ 4,879.155
Costs to be paid by City of Aspen $ 4,879,155
Value of third-party contributions $ 0
Total Project Cost $ 9,758,310
RECOMMENDED ACTION:Staff recommends approval of Resolution #134, Series of
2024, which acts as an official authorization to commit the City of Aspen to the obligations
associated with receipt of a financial assistance award from the Federal government if
one is so given.
ALTERNATIVES:City Council could choose not to approve Resolution #134, which is
required to be submitted to the Federal government within 30 days of the grant application
deadline of November 14, 2024, to comply with the mandatory grant submittal
requirements of the Federal government. The City Electric Utility could also fund this
Ruedi Hydroelectric Powerplant Upgrade and Additions project using some other loan
67
Page 3 of 3
method to successfully complete the City’s portion of the Ruedi Hydroelectric Powerplant
Upgrades and Additions project.
PROPOSED MOTION: I move to approve Resolution #134, Series of 2024.
CITY MANAGER COMMENTS:
ATTACHMENTS:
Exhibit A – Resolution 134, Series of 2024
Exhibit B – Federal Grant Application for Ruedi Hydroelectric Powerplant Upgrades and
Additions
68
RESOLUTION # 134
(Series of 2024)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, WHICH AUTHORIZES THE CITY OF ASPEN TO COMMIT TO
THE FINANCIAL AND LEGAL OBLIGATIONS ASSOCIATED WITH
RECEIPT OF A FINANCIAL ASSISTANCE AWARD FROM THE FEDERAL
GOVERNMENT FOR THE RUEDI HYDROELECTRIC POWERPLANT
GENERATION EQUIPMENT UPGRADE AND ADDITION OF SECOND
TURBINE.
WHEREAS, there has been submitted to the City Council a federal grant
application for Ruedi Hydroelectric Powerplant upgrades and additions that
proposes a 50/50 project match between federal funding sources and the Aspen
Electric Utility, a true and accurate copy of which is attached hereto as Exhibit
“B”;
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 and commits
the City of Aspen to the financial and legal obligations associated with the receipt
of a financial assistance award from the Federal government, if one is so given, 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 3rd day of December, 2024.
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 3, 2024.
Nichole Henning, City Clerk
69
WaterSMART: Water and Energy Efficiency Grants for FY 2024
Funding Opportunity R24AS00052
Prepared By:
City of Aspen
Project Manager: Justin Forman, Director of Utilities
Utilities Department
427 Rio Grande Place
Aspen, CO 81611
Phone: 970.429.1992
Fax: 970.920.5117
E-Mail: justin.forman@aspen.gov
Name of Owner/Operator: City of Aspen
November 13, 2024
City of Aspen
Ruedi Hydroelectric Powerplant
Generation Equipment Upgrade & Addition
of Second Turbine
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Table of Contents
1. TECHNICAL PROPOSAL ..................................................................................................... 1
1.1 EXECUTIVE SUMMARY .................................................................................................. 1
1.1.1 APPLICATION INFORMATION .......................................................................................... 1
1.1.2 PROJECT SUMMARY ...................................................................................................... 1
1.1.3 APPLICANT INFORMATION ............................................................................................. 2
1.2 PROJECT LOCATION ...................................................................................................... 2
1.3 BACKGROUND ............................................................................................................. 3
1.3.1 EXISTING CITY OF ASPEN RUEDI POWERPLANT DESCRIPTION .................................................. 5
1.3.2 EXISTING PLANT AND WATER RELEASE OPERATIONS ............................................................ 7
1.3.3 POWER DELIVERY AND HISTORICAL POWERPLANT PERFORMANCE ........................................... 9
1.4 PROJECT DESCRIPTION ................................................................................................ 11
1.4.1 SCOPE OF WORK FOR SECOND TURBINE ADDITION ............................................................ 11
1.4.2 SCOPE OF WORK FOR UPGRADING EXISTING PLANT FACILITIES ............................................. 13
1.4.3 RENOVATION OF EXISTING POWERPLANT FACILITIES WITH THE GOALS OF EXTENDING PROJECT LIFE AND
ALLOWING AUTOMATION OF OPERATIONS ................................................................................... 14
1.5 EVALUATION CRITERIA ................................................................................................ 15
1.5.1 EVALUATION CRITERION AQUANTIFIABLE WATER SAVINGS (25 POINTS) ............................. 15
1.5.2 EVALUATION CRITERION BRENEWABLE ENERGY (20 POINTS)............................................ 15
1.5.3 EVALUATION CRITERION COTHER PROJECT BENEFITS (15 POINTS) ..................................... 27
1.5.4 EVALUATION CRITERION DDISADVANTAGED COMMUNITIES, INSULAR AREAS, AND TRIBAL BENEFITS
(15 POINTS) ........................................................................................................................... 30
1.5.5 EVALUATION CRITERION ECOMPLEMENTING ON-FARM IRRIGATION IMPROVEMENTS (8 POINTS)32
1.5.6 EVALUATION CRITERION FREADINESS TO PROCEED (8 POINTS) .......................................... 32
1.5.7 EVALUATION CRITERION GCOLLABORATION (5 POINTS) ................................................... 38
1.5.8 EVALUATION CRITERION HNEXUS TO RECLAMATION (4 POINTS) ........................................ 38
1.6 PERFORMANCE MEASURES .......................................................................................... 39
2. BUDGET NARRATIVE ...................................................................................................... 41
2.1 FUNDING PLAN AND LETTERS OF COMMITMENT ............................................................... 41
2.2 BUDGET NARRATIVE ................................................................................................... 43
2.2.1 PERSONNEL ............................................................................................................... 43
2.2.2 FRINGE BENEFITS ........................................................................................................ 43
2.2.3 TRAVEL..................................................................................................................... 43
2.2.4 EQUIPMENT .............................................................................................................. 43
2.2.5 SUPPLIES .................................................................................................................. 43
2.2.6 CONTRACTUAL ........................................................................................................... 44
2.2.7 CONSTRUCTION .......................................................................................................... 44
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2.2.8 RECIPIENT-OWNED EQUIPMENT USE COSTS ..................................................................... 44
2.2.9 CONSTRUCTION MATERIALS CONSTRUCTION MATERIALS AND NON-MOVABLE EQUIPMENT ..... 44
2.2.10 CONTRACTUAL ANY CONTRACT OF $250,000 OR MORE (OR 35% OF PROJECT OR MORE) NEEDS
SEPARATE DETAILED DESCRIPTION OR ESTIMATE ............................................................................ 44
2.2.11 OTHER CONSTRUCTION-RELATED COSTS PERMITTING, EQUIPMENT RENTAL ......................... 48
2.2.12 OTHER DIRECT COSTS .................................................................................................. 48
2.2.13 INDIRECT COSTS ......................................................................................................... 48
3. ENVIRONMENTAL AND CULTURAL RESOURCES COMPLIANCE ....................................... 49
4. REQUIRED PERMITS AND APPROVALS ........................................................................... 52
4.1 SUMMARY OF ADDITIONAL OUTREACH WITH RESOURCE AGENCIES AND TRIBES ...................... 55
4.1.1 BUREAU OF RECLAMATION ........................................................................................... 55
4.1.2 COLORADO PARKS AND WILDLIFE ................................................................................... 55
4.1.3 COLORADO STATE HISTORIC PRESERVATION OFFICE ........................................................... 55
4.1.4 COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT ........................................ 56
4.1.5 UTE TRIBE ................................................................................................................. 56
4.1.6 U.S. FOREST SERVICE .................................................................................................. 56
4.1.7 PITKIN COUNTY .......................................................................................................... 56
4.1.8 HOLY CROSS ENERGY................................................................................................... 56
4.1.9 RUEDI WATER AND POWER AUTHORITY .......................................................................... 56
4.1.10 PITKIN COUNTY HEALTHY RIVERS AND STREAMS ................................................................ 57
4.1.11 ADDITIONAL FUTURE CONSULTATION AND PERMITTING WORK............................................. 57
4.1.12 SCHEDULING IMPLICATIONS ASSOCIATED WITH FERC LICENSING .......................................... 58
5. OVERLAP OR DUPLICATION OF EFFORT STATEMENT ..................................................... 59
6. CONFLICT OF INTEREST DISCLOSURE STATEMENT ......................................................... 60
7. UNIFORM AUDIT REPORTING STATEMENT .................................................................... 62
8. DISCLOSURE OF LOBBYING ACTIVITIES........................................................................... 63
9. LETTERS OF SUPPORT ..................................................................................................... 65
10. OFFICIAL RESOLUTION ............................................................................................ 70
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Figures
Figure 1. Area Map of Proposed Project .................................................................................................. 3
Figure 2. Exhibit G FERC License Amendment, 2024. Project Boundary Leased Area and Land Ownership 4
Figure 3. Exhibit F-1 from FERC License Application September 2024 ....................................................... 6
Figure 4. Backwater Conditions Flooding Turbine Runner at Discharge of 275 cfs .................................... 9
Figure 5. Ruedi Gross Energy Production (5-Year Moving Average vs. Modeled Output, 1994-2024) ...... 11
Figure 6. Proposed Plan and Profile for Addition of Francis Turbine, From FERC License Amendment
Application (2024) ................................................................................................................................. 13
Figure 7. Historical Release Patterns and Planning Scenarios from FERC Licence Amendment Application
............................................................................................................................... ............................... 21
Figure 8. Proposed Project Timeline ...................................................................................................... 35
Tables
Table 1. Actual vs. Design Turbine Performance, Power Output of Existing Turbine vs. Two Turbine
Installation, Full Reservoir Conditions and Releases at Design Flow of 300 Cubic Feet/Second ............... 18
Table 2. Recent Actual Powerplant Performance ................................................................................... 19
Table 3. Average Predicted Annual Production (MWh/year) .................................................................. 20
Table 4. Proposed Project Milestones .................................................................................................... 36
Table 5. Total Project Cost: Summary of Federal and Non-Federal Funding Sources ............................... 41
Table 6. Proposed Project Budget .......................................................................................................... 42
Table 7. Budget Narrative Ruedi Hydroelectric Powerplant Upgrades and Additions ........................... 45
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1. TECHNICAL PROPOSAL
1.1 EXECUTIVE SUMMARY
1.1.1 APPLICATION INFORMATION
Submittal Date November 8, 2024
Applicant City of Aspen, Colorado
Justin Forman, Utilities Director
Utilities Department
427 Rio Grande Place
Aspen, CO 81611
970-429-1992
Applicant Category
Category A
Funding Group II I
Grant Funding Requested $4,879,155
Total Project Budget $9,758,310
Project Duration April 2025 through December 2028
Estimated Project Completion Date December 2028
Project Location Ruedi Hydroelectric Powerplant, located
at 14151 Fryingpan Road, Basalt, CO
81621, Pitkin County, and within the
White River National Forest.
1.1.2 PROJECT SUMMARY
The City of Aspen (Aspen or the City) will upgrade and modernize the existing Ruedi
Hydroelectric Powerplant and will add an additional 1.2-megawatt (MW) turbine and generator
to provide a better match between the Fryingpan Arkansas Project design with current release
patterns from Ruedi reservoir (Proposed Project). Ruedi Dam and Reservoir (Ruedi Project)
and the associated hydroelectric facility (Ruedi Powerplant) is an existing U.S. Bureau of
Reclamation (USBR) facility that was congressionally authorized as part of the Fryingpan Arkansas
Project in 1962. The 1962 act identified project purposes including irrigation, municipal domestic
and industrial uses and generating hydroelectric power along with other uses that include
recreation, flood control, and conservation. The dam and reservoir are located in Pitkin and Eagle
Counties, Colorado. With the addition of the second turbine and generator, the capacity of the
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powerplant will reach 5.0 MW as currently licensed by the Federal Energy Regulatory Commission
(FERC). The Proposed Project site is located within an existing area under lease to Aspen by USBR.
The Proposed Project will result in the additional generation capacity of 1.2 MW and generation
of approximately 8,056,000 kilowatt-hour/year (kWh/year) of additional energy before losses.
Upgrading the equipment at the existing powerplant will extend the life of the facility for another
40-50 years and allow the Ruedi Project as a whole to deliver an estimated 21,843,000 kWh
annually. All the energy generated by the powerplant will continue to be delivered to Aspens
Electric Utility customers through existing agreements and facilities owned by Holy Cross Energy
and other regional electric power providers. The additional turbine and generator will not require
any changes to current practices related to USBR operation of Ruedi Reservoir but will support
improvements in operations related to making timely releases of water in response to direction
provided by USBR.
1.1.3 APPLICANT I NFORMATION
The City of Aspen is applying for a WaterSMART grant as a Category A Applicant. Aspen is a home
rule municipality, as established under Article XX of the Colorado Constitution, and therefore
qualifies as a local authority. Colorado is one of the Western States defined under the terms of
the Reclamation Act of 1902. Aspen operates both an electric and water utility that provides
service in and around the incorporated area located within Pitkin County and therefore satisfies
the requirement that it has authority for water and power delivery. The service area for Aspen
Electric utility contains 3,138 electric customers, all located within the municipal boundary.
Aspen Water utility serves 4,129 customers and the corresponding service area extends into the
unincorporated area of Pitkin County that is contained within the defined Urban Growth
Boundary. The City of Aspen has contracts with USBR for delivery of Ruedi Project water through
USBR and has a separate smaller contract with the Colorado River Water Conservation District
(CRWCD). The USBR and CRWCD contracts currently define the purpose of water delivery from
Ruedi as water augmentation to satisfy downstream water demands when the rights of Aspen
Water Utilitys upstream diversions would otherwise be out of priority. Contract water delivery
from USBR releases at Ruedi Reservoir under the two agreements noted above supports the
administration of water rights to help ensure reliability of water service to Aspens Municipal
water customers.
1.2 PROJECT LOCATION
Facility Location and Address: 14151 Fryingpan Rd, Basalt, CO 81621-9745.
Ruedi Dam and Reservoir, shown in Figure 1 below, are located on the Fryingpan River, a tributary
of the Roaring Fork River, which is a tributary of the Colorado River. The Reservoir is located in
Pitkin and Eagle Counties approximately 12 miles north of the City of Aspen. Aspens
Hydroelectric Project is located just downstream of Ruedi Reservoir within Pitkin County. The
project latitude is 39°2147 N and longitude is 106°495 W.
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Figure 1. Area Map of Proposed Project
1.3 BACKGROUND
The Ruedi Project is an element of the Fryingpan-Arkansas Project. The Ruedi Dam is a zoned
earthfill dam and was constructed between 1964 and 1968 on the Fryingpan River, 14 miles
above the confluence with the Roaring Fork River. The dam first reached the spillway crest in
1969. The dam has a height of 285 feet above the streambed and a length of 1,042 feet at a
spillway crest elevation of 7,766 feet. Construction of the dam resulted in the inundation of 7
miles of the Fryingpan River and flooded 1,000 surface acres. The dam's foundation includes a
cutoff trench to sound rock beneath the full length of the dam. The dam's facilities include the
dam itself, a spillway, a main outlet works, an auxiliary outlet works, and a bypass structure for
Rocky Fork Creek. The spillway has a capacity of 5,540 cfs at a maximum level of 7,781.8 feet. The
storage capacity of the reservoir is 102,360 acre-feet. Ruedi Reservoir is located 15 miles
upstream of the town of Basalt. Elevations within the watershed range from over 14,000 feet at
the headwaters to 6,600 feet at the town of Basalt.
The Proposed Project site is surrounded by U.S. Forest Service lands. The Project Boundary
showing the area leased from USBR is shown below in Figure 2. No aspect of the proposed
modifications will occur on U.S. Forest Service lands, and it is anticipated there will be no affect
to National Forest resources from the proposed modifications. The land is rural, with
approximately 60,000 acres of wilderness, and National Forests comprise 92% of the basin.
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Figure 2. Exhibit G FERC License Amendment, 2024. Project Boundary Leased Area and Land
Ownership
Ruedi Dam and Reservoir is operated and maintained by the USBR as part of the congressionally
authorized Fryingpan-Arkansas Project. The 1962 legislation identified generation and
transmission of hydroelectric power as one of the project purposes. Aspen produces
hydroelectric energy through an existing FERC-licensed project at Ruedi Dam generating
electricity when releases are made by USBR. The Ruedi Project is subject to, and subordinate to,
the timing, quantity, and location of water releases by USBR. USBRs water releases out of Ruedi
Reservoir support a renowned trout fishery, hydropower generation, augmentation for the City
of Aspen, and serves as a water supply for downstream municipalities and agricultural water
users. Water stored in Ruedi Reservoir is primarily used to deliver water for irrigation, municipal
and industrial users, and provides habitat requirements for Threatened & Endangered fish
species on the Colorado River near Grand Junction, Colorado.
The Ruedi Hydroelectric Powerplant was licensed by FERC in 1983. During that same year, USBR
entered into a lease agreement to allow utilization of federal lands and established the Project
Boundary for the powerplant. At the same time, USBR also entered into an agreement that
defined the responsibilities of the parties relating to powerplant operations. An amendment to
the FERC license was issued in 1985 to clarify that the initial plant was to contain a single turbine
rated at 5.0 MW. The FERC license andUSBR operating agreement was further amended in 2010
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to clarify that the City of Aspen is the sole owner and operator of the facility, as well as to update
certain provisions relating to maintenance of powerplant facilities.
The USBR facilities completed in 1968 included a submerged intake structure that leads to a 10-
foot diameter concrete-lined circular tunnel. The tunnel leads to a gate chamber. A 76-inch
diameter steel pipe leads to a control house with two 3.5- by 4-foot tandem gates and a stilling
basin. The main outlet works have a capacity of 1,000 cubic feet per second (cfs) when the
reservoir reaches an elevation of 7,766 feet. A wye to a short section of 76-inch diameter steel
pipe just ahead of the control house allowed for the connection for hydropower purposes.
The configuration of USBR facilities upon completion in 1968 included a dished head at the end
of the 76-inch wye. When the powerplant was constructed beginning in 1983, the dished head
was removed and replaced by a 76- to 54-inch reducer to allow stream releases to be routed
through the powerhouse under the majority of operating conditions.
1.3.1 EXISTING C ITY OF A SPEN RUEDI P OWERPLANT DESCRIPTION
Beginning with construction activities in 1983, a 54-inch penstock was connected to the USBR
outlet works to the turbine located inside the powerhouse. At this time, the dished head at the
end of the wye on the 76-inch penstock was removed and replaced with a reducer as described
above. The configuration of existing powerplant equipment that was connected to the USBR dam
outlet works is shown on the site plan and included as Figure 3.
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Figure 3. Exhibit F-1 from FERC License Application September 2024
A ball valve on the penstock is in a concrete structure that extends below grade and is electrically
operated to allow water flow directed toward the powerplant to be isolated during maintenance
activities or during an emergency. Just upstream from the powerhouse, the 54-inch penstock is
bifurcated into two 33-inch diameter conduits which direct flow into either the upper or lower
side of the turbine housing. The rate of flow through each of these conduits is adjusted by two
hydraulically operated spear valves located on each of the conduits, creating a water jet directed
towards the turbine runner. The turbine can be operated in either a single or twin jet mode. The
single jet mode can be used when flow release levels are as low as low 50 cfs, conditions which
frequently occur during the 7-month long winter season. The twin conduits supply pressurized
water to the Gilkes Turgo turbine to allow the motive force that turns the General Electric 5.0
MW generator. Outflows passing through the turbine are discharged into a concrete-lined
tailrace that discharges to a stilling basin and thence to the Fryingpan River. In the event of an
unplanned plant disruption, flow defectors inside the turbine casing are operated to prevent the
operation of the turbine runner, allowing water discharge to the Fryingpan River to be continued
without interruption or change in the release volume.
Existing equipment to monitor and control plant operations consists of a combination of the
original analogue system and newer digital control logic. If the current facility is taken offline, it
requires the physical presence of a plant operator to restart the plant, particularly with respect
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to ensuring synchronization with the operation of the power grid. Scheduling a site visit to
resume power production may create a delay which resulting in the loss of energy that may
extend a day or two. The most frequent circumstance that takes the plant out of service
intermittently is a Station Outage condition, frequently caused by a lightning strike in the
proximity of the Holy Cross Energy (HCE) electric distribution lines.
During the majority of operating conditions, the full volume of Ruedi releases are routed through
the penstock that serves to deliver water to the existing turbine (nameplate of 5.0 MW) and
discharged to the Fryingpan River through the stilling basin. The reservoir releases flow through
the generating facility located alongside the existing reservoir main outlet works, instead of
through the USBR operated outlet works. Additional delays occur making flow volume
adjustments when flows exceed the practical hydraulic capacity of the generation equipment due
to the need to schedule USBR operating staff that are located at Twin Lakes, CO.
The original reservoir construction included a 76-inch inside diameter steel pipe that has a wye
to a short piece of the 76-inch pipe with a dished head, which was located upstream from the
outlet works control house and stilling basin (prior to construction of the powerhouse). The
dished head was removed, and the steel pipe was extended so that reservoir outflows are now
discharged primarily through the hydropower facilities. The hydropower facilities include a
stilling basin to handle the turbine outflows. The hydraulic capacity of the powerplant facilities is
300 cfs. However, as detailed later in this discussion, the practical capacity of the facility is 225
cfs because the power production does not increase any further when flows are above this
discharge volume. Aspens agreement with USBR currently requires that if and when the FERC
license is no longer in place, the penstock that feeds the powerhouse would be abandoned and
the dished head would be reinstalled at the Wye bifurcation to the 76-inch pipe owned by
USBR.
1.3.2 EXISTING P LANT AND W ATER RELEASE OPERATIONS
City staff, together with contract assistance from Chalmers and Kubeck, operate the existing
powerplant. Power production from the facility is determined primarily by reservoir water
release and storage schedules which are determined by USBR staff. The USBR operations must
satisfy many concerns including administration of water rights by the Colorado Division of Water
Resources (DWR), contractual water delivery commitments, federal guidelines for protection of
the environment, recovery efforts of endangered species with habitat on the Colorado River
downstream of Ruedi Dam, as well as the desires of recreational fishing interests concerned with
the Gold Medal waters of the Fryingpan River. Decisions regarding the amount of water that can
be captured and stored in Ruedi Reservoir and the schedule for water release are made by USBR
staff without consideration for the resulting potential for power production at the Ruedi plant.
The operations agreement specifies that USBR maintains control over water release volumes.
The existing Turgo turbine installation utilizes deflector shields that allow the water jets to be
directed away from the turbine runner when operations are temporarily interrupted by
conditions such as a disruption to the power grid (most frequently resulting from nearby lightning
strikes) thereby cutting off operation of the generator. While the plant is offline during these
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conditions, water releases through the powerplant continue because of this design feature and
this allows for maintenance of established discharges to the Fryingpan River.
When the Ruedi powerplant was first constructed in the 1980s, USBR staff with duties associated
with reservoir operations were located near the community of Thomasville, only a few miles
away from Ruedi dam. Operations staff are now located near Twin Lakes, CO, which can involve
a 4-hour drive each way to the dam site during the winter months. USBR has increasingly relied
on Aspens staff to make operational adjustments in order to control reservoir release volumes.
There has also been increased reliance on SCADA and telemetry systems which provide
information on reservoir inflows and release volumes as well as other operating conditions that
are monitored by both USBR and the City of Aspen. Under most conditions, when USBR
determines that a change in reservoir release volumes, it issues an order and those are carried
out by Aspens operations staff by operating the hydraulic system that controls the spear valve
settings and thereby the amount of flow being released. A physical visit to ensure that the plant
continues to operate effectively and safely as release volumes occur is generally necessary. When
Aspens staff makes these adjustments, it shortens the time delay between the decision to
change the water delivery and making those adjustments in plant settings. It also eliminates the
need for a physical visit to the plant by USBR staff.
Currently, when USBR orders a water release in the approximate range between 50 cfs and 250
cfs, those adjustments are made by Aspens staff and that adjustment requires a physical visit to
the site. When the release requirements are in excess of 225 to 250 cfs the additional water is
released through the USBR auxiliary outlet, even while the powerplant continues to operate. This
is because at the above threshold range of flow values, the turbine runner at the powerplant
becomes submerged by backwater conditions in the tailrace. These conditions occur even though
the rated hydraulic capacity of the powerplant is 300 cfs and the turbine was intended to
continue producing added power up to that flow volume. However, the backwater conditions
described above and in the tailrace area shown in Figure 4 below effectively limit the capability
of the powerplant.
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Figure 4. Backwater Conditions Flooding Turbine Runner at Discharge of 275 cfs
1.3.3 P OWER D ELIVERY AND HISTORICAL P OWERPLANT P ERFORMANCE
Power is transmitted through the transformer and interconnect facility line to the point of
interconnection to a 14.4 kilovolt (kV) distribution line owned by HCE. An existing 5.0 MW
transformer is rated at 24,940 high-voltage (HV)/14,400 low-voltage (LV). The transformer is
connected to the HCE 14.4 kV distribution system by an overhead power line that exits the plant
site and crosses Fryingpan Road. The above-described facilities from the connection point on the
outlet works to the tailrace including the power transmission facilities are described elements of
the Ruedi Project. The electric distribution connection and resultant delivery of power to the
Aspen grid involves a Use of Facilities Agreement with HCE as well as a separate agreement
and with Public Service Company of Colorado (PSCo) to wheel energy over their lines.
The PSCo wheeling agreement is administered by Municipal Energy Agency of Nebraska (MEAN)
as part of a larger contract for transmission services. The two agreements provide for the
wheeling of all the net energy (after losses) produced by the Ruedi Project to be transmitted to
retail customers of the Aspen Municipal electric system. The facilities are identified in the
respective agreements and include HCEs Ruedi-Basalt Circuit, the Basalt 25 megavolt-amperes
(MVA) substation, the Aspen 25 MVA substation, the Puppy Smith 500 multi-chip module (MCM)
circuit as well as PSCo lines that connect the Aspen and Basalt substations. Because the routing
of power includes transformer losses each time a different circuit is encountered, there is a
cumulative loss that occurs. The Aspen municipal electric system is credited with delivery of
91.5% of the gross energy produced at Ruedi (net after loss). Power delivery arrangements will
remain the same with or without changes to the powerplant facilities.
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Delivering the power generated at the Ruedi Powerplant to Aspens electric customers involves
tracking energy production at 15-minute intervals which are in turn summarized in a monthly
energy production report provided by MEAN. A separate monthly report that summarizes power
delivery for each hour is also produced by MEAN. An annual summary of power generation is
provided to FERC and is part of the compliance process for the license. PSCo is responsible for
routine calibration of the production meters at Ruedi to ensure the accuracy of the report and
verification of power delivery to the Aspen grid.
Records of power production have been analyzed to discern longer term trends and to assist in
identifying the potential for improving the energy recovery from USBR water releases at Ruedi
Dam. Figure 5, below, shows the 5-year moving average of power production during a 24-year
period from 1994-2017, as well as three potential scenarios for future power production based
on modeling the results of different USBR flow release patterns from Ruedi Reservoir. At the time
that future production was modeled as part of the 2020 feasibility study that evaluated various
means to capture the potential energy that was anticipated with the initial construction of the
plant in the 1980s. Various configurations and types of equipment were analyzed in the
feasibility study. There were three different water release scenarios: Historical Trends; Fishflow
1 (5,000 acre-feet per year (AFY) release for endangered species; and Fishflow 2 (15,000 AFY
release for endangered species). The 5-year moving average for annual energy production has
declined from a high near 20,000,000 kWh in the early 2000s to the current five-year running
average of 13,772,000 kWh. Note that the actual five-year running average power production
closely corresponds to the worst case analyzed in the feasibility study and follows the expected
energy production curve for the highest level of water released to aid the recovery of endangered
fish that was analyzed.
The feasibility study identified the best approach for matching the turbine and generator
equipment to optimize the amount of energy produced considering changes that have occurred
in flow release patterns. That approach is summarized below in the project description.
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Figure 5. Ruedi Gross Energy Production (5-Year Moving Average vs. Modeled Output, 1994-
2024)
1.4 PROJECT DESCRIPTION
The Proposed Project, described in detail below, involves upgrading and modernizing the existing
Ruedi Hydroelectric Powerplant to add an additional 1.2 MW turbine and increase operational
flexibility.
1.4.1 SCOPE OF W ORK FOR SECOND TURBINE A DDITION
Aspen is proposing to add a second turbine and generator to capture flows outside of the range
of the existing equipment to restore the Projects ability to generate 5 MW. This part of the
proposed project is designed to increase the capacity of an existing hydropower facility as
described in detail in Aspens application for an amendment to its existing FERC license3603. The
following work, all within the existing footprint and previously disturbed area of the Ruedi
Project, will be required:
a) A 28-by-22 foot addition to the powerhouse;
b) Installation of a 1.2 MW single unit Francis turbine and generator;
c) A new 30-inch bifurcation installed on the existing 54-inch penstock;
d) A110-foot section of new 30-inch steel penstock would lead to the extended powerhouse
and an additional valve would be supplied on the new line to isolate the new turbine unit
from the existing turbine and generator;
e) Installation of a 24-inch diameter bypass line inside the powerhouse addition, including
an energy dissipation valve to deal with pressure surges associated with unplanned plant
shutdowns; and
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f) Flow volumes routed through the new 1.2 MW Francis turbine would be discharged to a
48-inch by 48-inch precast concrete tailrace which would be 60 feet in length and would
route flows to the existing stilling basin.
All facility modifications would remain within the boundaries of the area maintained and
operated by Aspen under its 2010 agreement with USBR. The new control equipment will have
the capability to adjust the combined flow routed to each turbine in response to water release
requirements determined by USBR staff (see governor discussion below). As with the existing
turbine equipment, the new turbine will have the capability to continue to discharge water to
the plunge pool at levels prescribed by USBR when power generation is interrupted by plant
outages. Since the new turbine will be operated during low flow conditions, it will provide the
capability to adjust flow volumes more accurately and satisfy transient water demands such as
those that occur during winter icing conditions or those associated with summer thunderstorms
that affect flows downstream of the reservoir. Aspen and USBR may or may not need to amend
the 2010 agreement to allow the proposed second turbine to be added to the Ruedi Project site.
Aspen will coordinate with USBR as necessary to make any necessary amendments.
The general design of the proposed improvements delineating each of the items described above
are shown on shown below in Figure 6.
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Figure 6. Proposed Plan and Profile for Addition of Francis Turbine, From FERC License
Amendment Application (2024)
1.4.2 SCOPE OF W ORK FOR U PGRADING EXISTING P LANT FACILITIES
The renovation for the existing powerplant facilities is described in the bullets below and includes
replacement of the power transformer, upgrades for the existing 5.0 MW General Electric
generator, addressing equipment wear issues, and installation of automation equipment
including a new digitally controlled governor. After upgrade completion, the existing and the new
turbines will have the capability to be started and stopped remotely and flow volumes routed
through each turbine will be able to be adjusted without requiring the presence of a plant
operator on site. The work associated with upgrading existing facilities would take place within
the existing powerhouse and the adjacent substation.
a) New Governor: A new digitally controlled governor will be installed and will interface with
operation of both existing and proposed turbines, turbine flow controls, hydraulically
operated equipment, generator, and power transformer, and will allow for
synchronization to the power grid.
b) Power Transformer Upgrade: A new 5.0 MW transformer rated at 24,940 HV/14,400 LV
will be installed at the existing substation and will continue to provide for the connection
of the power output for both the existing turbine/generator to the HCE distribution
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system as well to perform the same function for the proposed second turbine/generator.
The transformer will be upgraded to include the capability to operate digital automation
controls for regulation of voltage to better integrate delivery of power to the HCE
distribution lines.
c) Generator Upgrade: The existing generator will be replaced with a new rotor and stator
unit. The rotor and stator will interface with the new governor and allow for remote start
up and adjustments related to changes in flow volumes. The existing analogue equipment
which synchronizes the generator to the power grid will be replaced with digital logic
controls that will enable the powerplant to be started remotely.
d) Rebuild Spear Valves: Equipment wear issues on the existing 3.8 MW Turgo turbine will
be addressed by replacement of the existing spear valves which control the placement of
the precisely focused jet of water as it enters the turbine housing. The existing seats for
the spear valves that control flows directed to the existing Turgo turbine are worn. The
resultant wear to turbine equipment places the installation outside of the narrow
equipment specification required for water to be effectively aimed directly at the turbine
runner. The new governor control system will allow real time operation of the spear
valves to better manage water releases in response to changing hydrologic conditions
downstream of Ruedi dam and offer more accurate delivery of water to meet the needs
of endangered species and other beneficial water uses located downstream of the
project.
e) Replace Existing 3.8 MW Turgo Turbine Runner with Spare: This equipment has also
experienced wear. The existing spare will be installed and the turbine runner that is
currently in service will be rebuilt to serve as a spare in the future. Rebuilding the existing
turbine to 225 cfs capacity, together with addition of the second turbine, will re-establish
the 300 cfs hydraulic capacity of the combined new Project. The two turbines working
together will be re-designed to accommodate the range of flows from approximately 50
cfs to 300 cfs and will better match USBRs current release patterns. This will enable
efficient production of energy during the prevailing flow conditions expected under
existing and future USBR ordered releases from the reservoir. Future damage to the
generation equipment that may be occurring during periods of high or low releases will
be reduced and the life of the equipment will be extended by Project operations that
occur within this flow range.
1.4.3 R ENOVATION OF EXISTING P OWERPLANT FACILITIES WITH THE GOALS OF EXTENDING P ROJECT LIFE
AND ALLOWING A UTOMATION OF O PERATIONS
The goal of refurbishing the existing equipment is to ensure that the life of the project is extended
for an additional 40-50 years, and that the equipment can be operated with improved output,
efficiency, and effectiveness. The work goes beyond operation and maintenance primarily as a
result of the design of the new digital control equipment (the governor). The entire set of
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improvements described above will be designed to integrate with the operation of each existing
hydropower facility element.
1.5 EVALUATION CRITERIA
1.5.1 EVALUATION CRITERION AQUANTIFIABLE W ATER SAVINGS (25 P OINTS)
Describe the amount of estimated water savings. For projects that conserve water, please state
the estimated amount of water expected to be conserved (in acre-feet per year) as a direct result
of this project.
The Proposed Project does not include water savings.
Describe current losses. Please explain where the water that will be conserved is currently going
and how it is being used.
The Proposed Project does not include reductions in current losses.
1.5.2 EVALUATION CRITERION BR ENEWABLE ENERGY (20 P OINTS )
Up to 20 points may be awarded based on the extent to which the project increases the use of
renewable energy or otherwise results in increased energy efficiency and reduced greenhouse gas
emissions.
For projects that include constructing or installing renewable energy components, please respond
to Subcriterion B.1: Implementing Renewable Energy Projects Related to Water Management and
Delivery. If the project does not implement a renewable energy project but will increase energy
efficiency, please respond to Subcriterion B.2. Increasing Energy Efficiency in Water Management.
If the project has separate components that will result in both implementing a renewable energy
project and increasing energy efficiency, an applicant may respond to both.
Note: An applicant may receive points under both Subcriterion B.1 and B.2 if the project consists
of an energy efficiency component separate from the renewable energy component of the project.
However, an applicant may receive no more than 20 points total under both Subcriterion B.1 and
B.2.
1.5.2.1 S UBCRITERION B.1 - IMPLEMENTING R ENEWABLE ENERGY RELATED TO W ATER M ANAGEMENT
AND D ELIVERY
Describe the amount of energy capacity. For projects that implement renewable energy systems,
state the estimated amount of capacity (in kilowatts) of the system. Please provide sufficient
detail supporting the stated estimate, including all calculations in support of the estimate.
Describe the amount of energy generated. For projects that implement renewable energy
systems, state the estimated amount of energy that the system will generate (in kilowatt hours
per year). Please provide sufficient detail supporting the stated estimate, including all calculations
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in support of the estimate. Please explain how the power generated as a result of this project will
be used, including any existing or planned agreements and infrastructure.
Describe the status of a mothballed hydropower plant. For projects that are bringing mothballed
hydropower capacity back online, please describe the following:
Clearly describe the work that will be accomplished through the WaterSMART Grant. Note:
Normal OM&R activities are not eligible for funding. The work being proposed must be an
investment.
Provide information about the capacity (in kilowatts) of the existing hydro system and the
expected capacity once it is brough back on-line.
Provide information about the duration that the hydro system has been offline and the
reasons why it has been mothballed. Please include any regulatory reporting or filings
(e.g., FERC filings) or other documentation regarding the system.
Describe any other benefits of the renewable energy project. Please describe and provide
sufficient detail on any additional benefits expected to result from the renewable energy project,
including:
How the system will combat/offset the impacts of climate change, including an expected
reduction in greenhouse gas emissions
Expected environmental benefits of the renewable energy system.
Any expected reduction in the use of energy currently supplied through a Reclamation
project.
Anticipated benefits to other sectors/entities.
Expected water needs, if any, of the system.
Energy Capacity
As with the existing powerplant facilities, the Proposed Project additions and modifications will
increase renewable energy production at Ruedi Reservoir. The plant capacity will increase from
3800 kW to 5000 kW, a net increase of 1200 kW after the second turbine and proposed
improvements to the existing plant are implemented. The capacity increase is documented in a
2020 Feasibility Study prepared by Small Hydro Consulting. The 1200 kW capacity of the second
turbine is based on a specific piece of equipment proposed by Canyon Hydro of Deming
Washington, however the equipment chosen will be based on bid proposal specifications that
require at least this level of performance. The 3800 kW capacity of the existing turbine is based
on actual performance records of generation and corresponds to a flow discharge of
approximately 235 cfs.
Design conditions for the existing Turgo and proposed Francis turbines, shown below in Table 1,
are taken from flow volume, head and power production curves provided by the respective
manufacturers: Gilkes Industries and Canyon Hydro. Data on actual power production conditions
in July 2024 is from USGS records on discharge and reservoir elevations as well as from power
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production data provided by MEAN for the same date and time on July 8, 2024. The increase in
the capacity for power generation (kW increase) together with utilization of flow releases (flow
rate increase) are the result of comparing the actual power output and flow utilization of the
existing plant to the design of the proposed facility as a two-turbine installation, adding the
second Francis turbine.
Automation of the existing operations supports the goals of both USBR and the City. With the
improved capability of the upgraded equipment, the ability to optimize the amount of energy
produced from each acre foot of water released from Ruedi Reservoir will be improved. The
ability to match actual water releases in response to USBR requirements to transient events such
as icing conditions in the Roaring Fork River or summer thunderstorm activity which in turn
modifies the desired release requirements allows for a response in real time. Together, this
integrated set of improvements will allow the Ruedi Powerplant to make efficient use of water
released by USBR in order to optimize power production.
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Page 18 of 74 Table 1. Actual vs. Design Turbine Performance, Power Output of Existing Turbine vs. Two Turbine Installation, Full Reservoir Conditions and Releases at Design Flow of 300 Cubic Feet/Second Reservoir Outflow [cfs] Flow to Turgo Turbine [cfs] Flow to Francis Turbine [cfs] Flow to USBR Aux Outlet [cfs] Reservoir Elevationa [ft] Gross Headb [ft] Power Output Turgo Turbine [kW] Power Output Francis Turbine [kW] Combined Total Power Output [kW] Existing Single Turbine 1985 Design Basis 300 300 n/a 0 7,765 280 5,000 0 5,000 Actual 07/08/2024 300 235 n/a 65 7,766 280 3,807 0 3,807 Proposed Two Turbine 300 235 65 0 7,766 280 3,807 1,200 5,007 Increased Capacity of Powerplant with Second Turbine Increased Generation Capacity -- -- -- -- -- -- -- -- 1,200 Increased Utilization of Flow Released -- -- 65 -- -- -- -- -- -- Notes: a. Rounded to nearest foot. b. Rounded to nearest foot. 91
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Energy Generated
The annual generation increase associated with the Proposed Project is 8,006,100 kWh annually.
This is based on modeling the output of the two generators utilizing daily hydrologic data
provided by USBR (Ruedi operating records) and USGS streamflow gaging records. Details of the
approach used in the feasibility study are provided under Energy Production Modeling below.
The total energy generated after the project is fully implemented is projected to be 21,843,100
kWh. The increase in gross energy generated (before losses) is expected to be the difference
between the current 5-year running average energy production (13,837,000 kWh as shown
below in Table 2) and the modeled energy production for the two turbine configurations.
Table 2. Recent Actual Powerplant Performance
Year Energy 5-Year Running
Average (KWh/year)a
2016 17,734,700
2017 17,845,400
2018 17,360,300
2019 16,337,500
2020 16,158,500
2021 15,212,300
2022 13,872,800
2023 13,837,000
Notes:
a. Rounded to nearest 100 KWh/year.
Energy Production Modeling
A modeling analysis was conducted as part of the feasibility study in 2020 that evaluated several
different project options with the potential to increase energy production to levels established
by the 1983 FERC license. This involved consideration of the hydraulic flow maximum (in cfs),
maximum power output (kW) as well as annual power production (kWh/year). The modeling of
power output was performed by Canyon Hydro based using daily data covering a 24-year period
from 1994-2017. The modeling was supported and confirmed by a separate analysis by the City
that used monthly average flow and head data for the same period of hydrologic records based
on USGS records of streamflow downstream of the dam. The following methodology was in the
Canyon Hydro analysis and the results are summarized in Table 3 below.
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Table 3. Average Predicted Annual Production (MWh/year)
Original Flow Regime Fish Flow 1 Fish Flow 2
Existing Turgo Only 18,141 17,526 15,437
Turgo + Pelton (new
runner and nozzles) 20,300 20,376 19,556
1200 kW Francis +
3800 kW (existing)
Turgo
21,843 20,363 19,422
5000 kW Standalone
Frances 19,621 19,247 18,468
3330 kW Francis +
1670 kW Francis 22,607 22,266 20,703
1. Reservoir discharge (flow values in cfs) and reservoir levels (reservoir head values in feet)
were obtained from USBR daily operations records covering the period from January 1994
to January 2018;
2. Dam release volumes were supported by monthly flow data summaries provided by the
USGS gage on the Fryingpan River below the dam;
3. Turbine efficiency for the existing Turgo turbine was analyzed and involved comparison
of the Gilkes Industries manufacturer efficiency curves for the existing turbine and
generator which were compared to actual plant performance (kW output)-actual plant
performance was evaluated at differing flow and head conditions;
4. The actual generator output that correlated to varying flow and head levels associated
with reservoir operations, modeled energy output (kWh) for each scenario was
determined for each day of the 24-years of record;
5. In addition to the 24 years of hydrologic records, two future hydrologic scenarios that
considered the extent of reservoir releases were developed (Fishflow 1 and Fishflow 2
scenarios);
6. Daily energy production for four different plant equipment configurations were modeled
based on the three sets of daily hydrologic conditions;
7. The equipment options that offered the best energy production at the lowest cost were
identified in the feasibility study;
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The daily energy output was summarized for each year and an annual average energy was
determined based on the 1994-2017 period of record as shown above in Table 3. The addition of
the second turbine using a Francis turbine and utilizing the existing Turgo generator offered the
best performance overall considering the cost of equipment and installation as well as the
flexibility to adapt to unknown future water release patterns. The annual generation figure for
addition of the second turbine is the difference between the 1994-2017 average annual modeled
value and the current (2023) five-year running average of energy production based on plant
production records. Further details regarding the hydrologic conditions relevant to power
production are included in the FERC License Amendment Application and below in Figure 7. This
includes defining frequency and duration for various flow conditions, the total energy expected
to be produced, area capacity curves for the reservoir, a curve showing power output as a
function of gross head and water discharged, a financial analysis of the project in comparison to
project alternatives, a description of the affected environment and any expected impacts
associated with constructing and operating the proposed plant, a description of compliance
measures that Aspen has committed to implementing.
Figure 7. Historical Release Patterns and Planning Scenarios from FERC Licence Amendment
Application
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How Energy Will Be Utilized
All the renewable energy produced at the Ruedi Powerplant will continue to be delivered to
Aspens municipal electric customers. There will be no change to the existing method of power
delivery as described in Power Delivery and Plant Performance detailed above. All the power
delivery facilities and contracts for power delivery will remain in place and none of those
agreements require modification because the maximum power delivery will remain at 5.0 MW
as currently licensed by FERC. Further, the design of the system, including the grid
interconnection to the HCE system, was designed on the same basis and no modifications are
anticipated as part of this project.
Other Energy Benefits
Improved Reliability and Diversity of Energy Sources: The Proposed Project will contribute to
improved reliability in Aspens electricity supply. In 2015, Aspens municipal electric utility
became the fifth in the nation to reach the goal of providing 100% renewable energy and has
continued to achieve that goal every year since. Aspen reached this goal in part by working with
the National Renewable Energy Laboratory (NREL) to create a plan for complete reliance on
renewable energy. This plan carefully considered the need to balance reliance on intermittent
energy sources, such as wind, with sources that are available on a more predictable schedule,
such as hydroelectric power, and set a specific target for the proportion of energy that needed
to be sourced from dependable and predictable hydroelectric power (46% of total power), with
the remaining power being generated primarily through wind power. The Ruedi Powerplant has
been an essential element of the power supply sources that allowed Aspen to meet this goal.
Primarily because the power production at the Ruedi Powerplant has been steadily declining, the
percentage of hydroelectric power provided to Aspens customers has also declined to less than
30%. Re-establishing the original design capacity of 5.0 MW at the Ruedi Powerplant, together
with other actions taken to date are expected to allow Aspen to meet the 46% goal for non-
intermittent sources. As part of the NREL Plan, the Ruedi Powerplant was expected to continue
to produce approximately 25% of Aspens electric energy needs, or approximately 19,500 MWh
annually (net after 8.5% loss). The established renewable energy goal considers that the timing
of the peak energy requirements for Aspens resort requirements occur during the winter when
hydroelectric production is at the lowest level. However, hydroelectric energy is predictable and
firm during the winter season when demand is highest. Monthly billing statements from Aspens
wholesale electric provider, MEAN, separately list the gross and net energy as well as capacity of
each hydroelectric source available to Aspen. This includes the output from the generator at the
Ruedi Powerhouse.
Growth in demand for the electric system, together with a reduction in energy production from
hydroelectric energy sources available to Aspen, threaten the Citys ability to continue meeting
the goal of reliance on 100% renewable energy in the future. The Ruedi Project was a key element
in achieving that target, but as energy production has declined, energy demand has continued to
increase. The decline in production is primarily a result of a new release pattern from
implementation of USBRs current operational plans that include large release volumes intended
to aid the recovery of endangered fish species in the Colorado River downstream from the dam.
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The new release patterns no longer provide a good fit with the currently installed equipment
configuration to maximize energy production. The proposed project will enable Aspens electric
utility to continue to provide 100% renewable energy while maintaining a balanced and reliable
system at competitive rates.
The current five year running average annual gross energy production for the Ruedi Powerplant
has declined to 13,837 MWh. The actual observed maximum output of the plant is 3.8 MW. The
plant is not currently capable of producing power at the 5.0 MW nameplate maximum. The
addition of a second turbine at the Ruedi Powerplant through the proposed project would
directly meet the need to improve both the energy output from the plant, but also the available
capacity during winter peak hours when the potential for an imbalance of energy is greatest and
the reliability risks to the electric utility are greatest. Modeling of the output of the proposed
capital improvement with the Ruedi second turbine indicates an expected annual net power
output of 21,843 MWh.
Without the proposed improvements at the Ruedi Hydroelectric Powerplant, the Aspen Electric
Utility will not be able to continue to meet its renewable energy target of providing 100%
renewable energy while maintaining reliable energy supplies that are delivered at competitive
rates. The result will be to fall below the target of 46% of its energy from hydroelectric sources.
The addition of the second turbine, together with other actions that Aspen has already taken,
would enable the target level of 46% energy from hydroelectric sources to be achieved.
Completion of the proposed project would allow the desired balance from wind energy resources
of not more than approximately 53% to be restored, thereby supporting the future reliability of
renewable energy sources delivered to Aspens municipal electric customers.
The rationale for addition of a second turbine at the Ruedi Hydroelectric Powerplant parallels the
rationale for making investments at aging hydroplants across the nation. Without this
investment, this renewable energy source is unlikely to be available to ensure grid reliability as
energy generation shifts to intermittent sources that include wind and solar. Aspen began this
shift beginning in the early 2000s, receiving recognition from the Environmental Protection
Agency as a Wind Energy Pioneer. Aspens electric utility is now relying on the second
generation of wind turbines that have already required replacement as they aged. However, no
major investment has been made to ensure the future availability of the energy source that has
served the role of ensuring that its fleet of hydroelectric generators will continue to balance
output from intermittent wind energy sources. To date there has been no comprehensive
program to update Aspens fleet of hydroelectric plants to meet changing hydrologic conditions.
The hydroelectric portion of Aspens renewable energy portfolio would be at risk in the future as
reflected in diminished energy generation and a reduction in capacity at the Ruedi Hydroelectric
Powerhouse. The extended life associated with the second turbine allows Aspen to request a
new long-term extension on its Major FERC license, up to an additional 50 years. The request for
an extension of the FERC license will coincide with the expected life of the plant following
implementation of the comprehensive plans for plant restoration.
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Carbon Emission Reductions: The Proposed Project will support the goal of continuing to provide
delivery of 100% renewable energy to Aspens electric customers. Because Aspen is currently
purchasing more energy from MEANs Green Energy Pool (primarily wind), there is currently an
overreliance on purchased energy over locally produced energy. The net effect of restoring the
generation capacity to 5.0 MW by installing the second turbine at the Ruedi Powerplant will be
to reduce these purchases. Other MEAN members will benefit from accessing additional Green
Energy Pool and may be closer to achieving their own renewable energy goals. The net effect of
this arrangement will be reduced emissions of greenhouse gases that are demonstrated to
contribute to climate change. The proposed project will provide a net reduction in greenhouse
gas emissions. While Aspens electric utility utilizes 100% renewable sources, MEANs Green
Energy Pool will become available to other MEAN members due to Aspens decreased demand.
Currently, other MEAN members rely heavily of energy produced by coal-fired powerplants.
MEAN also has a vision of becoming carbon neutral by 2050 and this addition will greatly benefit
over 60 communities within the organization.
The amount of annual carbon emissions reduction is estimated to be 7,165 Tons CO 2/year (based
on an emission rate of 1.79 lbs. CO2/kWh produced and applied to the expected energy
production of 8,006,100 kWh). The emission reduction estimation for MEAN power generation
assumes that approximately 75% of the reduced generation capacity will come from coal fired
resources currently being delivered to other MEAN members.
Other Expected Environmental Benefits
The Proposed Project plant modifications are designed to allow remote operation of the
powerplant including the capability to make real time adjustments to flow levels when the USBR
staff makes requests to modify flow releases from the dam. This will improve the ability to adjust
flow levels more efficiently with consideration for items such as winter icing conditions
downstream in response to fluctuations in temperature. Because winter icing conditions are a
known factor affecting the downstream aquatic habitat and fishery, the provision of automated
control systems will enhance the ability to effectively use the water in storage with the goal of
improving aquatic habitat that have been adversely affected by low winter release patterns that
currently prevail on the Fryingpan River downstream of Ruedi dam.
Similarly, water releases for endangered species recovery can be targeted more precisely to deal
with the complex nature of the downstream river system. While releases from Ruedi play an
increasingly important role on managing downstream flow volumes, it is only one of many
reservoirs that require coordination of releases to obtain the desired flow in the affected reach.
Natural variations in flow resulting from conditions such as thunderstorms often require more
immediate action to ensure that water is directed to the point where and when it is needed.
Automation to allow remote operation of the flow control valves that are part of the powerplant
will assist in better meeting these goals and will have a beneficial effect on the endangered
species habitat. Finally, the response time to make flow adjustments through the powerplant will
be reduced as staff will no longer be required to physically travel from Twin Lakes to make valve
adjustments on the USBR system.
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The project will result in increasing the range of flows that can be controlled through the
hydroplant and will utilize the full 300 cfs capacity of the powerplant. This improved range of
flow releases is important to the USBRs ability to manage water releases, particularly making
flow releases at the higher end of the schedule that are important to the endangered fish
recovery program. The automation equipment that will be installed as part of the project will
result in reduced delays between when release orders are requested by USBR and when the valve
adjustments are made. Improved accuracy of the water releases in meeting downstream targets
will benefit the endangered species recovery program and can consider real time variables such
as thunder shower activity, changes in water diversion levels along the river in response to water
right administrative calls, and flow releases made from other reservoir systems that are upstream
of the affected reach. Similarly, water releases for endangered species recovery can be targeted
more precisely to deal with the complex nature of the downstream river system. Also, natural
variations in flow resulting from conditions such as thunderstorms often require more immediate
action to ensure that water is directed to the point where and when it is needed. Automation to
allow remote operation of the flow control valves that are part of the powerplant will assist in
better meeting these goals and will have a beneficial effect on the endangered species habitat.
Finally, because the range of flows managed through the powerplant up to the hydraulic capacity
(300 cfs) there will be a benefit because the response time would no longer require a physical
trip from Twin Lakes to make the valve adjustments on the USBR system.
Anticipated Benefits to Other Sectors/Entities
MEAN Membership
Access to reliable hydropower has provided MEAN members with similar benefits as those
experienced by Aspen and discussed earlier in this document. The inclusion of hydropower in
MEANs energy supply portfolio improves the reliability of supplies that serve Aspen and other
MEAN members by allowing members with seasonally opposing peak demands to benefit from
reliable renewable energy all year long. Renewable energy produced by the proposed project will
support MEANs goal of 100% reliance on renewable energy.
Aspens participation in MEAN goes back to 1983, and from the beginning of that relationship,
the power generation at Ruedi has played a key part in the partnership that was formed with
other MEAN participants. MEANs all requirements power purchase arrangements have carved
out the 5.0 MW capacity and +-20,000,000 kWh of power out of the MEAN agreement as an
exception to the required power purchase rules from the inception of those agreements, which
has proven to be an asset for both Aspen and other MEAN members. The hydropower generation
from the Ruedi Powerplant has provided a way of balancing the availability of energy to meet the
seasonal (winter vs. summer) power requirements of Aspen and other members. Aspens
participation in MEAN has offered the benefit of balancing the needs of members whose
requirements are at a maximum during the summer, with current renewable sources of power
that are more abundant during the winter. The hydropower production from Ruedi helps provide
that balance. Hydropower from the Ruedi Powerplant is located closer to the point where
customers utilize the energy and is beneficial from the standpoint of avoiding congested areas
on transmission lines and facilities necessary to serve customers in western Colorado. This is
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particularly true for MEANs Colorado customers that can be as far as 600 miles away from wind
energy sources. Power is often routed through the most congested parts of the transmission
network and local generation helps avoid unnecessary investments in new transmission. The
avoided costs help keep system rates low for Aspen and other MEAN members. The future grid
can increase reliance on intermittent sources like wind because hydroelectric sources are more
predictable. MEANs future goals of reaching 100% carbon neutral energy by 2050 (as well as
Aspens goal to stay at 100% renewable) would be threatened if energy from the Ruedi
Powerplant were not available well into the future.
Holy Cross Energy
HCE has played a role in transmitting the energy from the Ruedi hydroelectric plant to Aspens
electric customers for nearly 40 years. HCEs service area includes lightly populated rural areas
with long distances between sources of energy and the facilities necessary to serve customers.
The existing power source at the Ruedi Powerplant provides a basis to support voltage regulation
on one of these distribution lines. Updating the transformer equipment to better integrate
delivery of power on HCEs distribution lines will benefit HCEs customers located in the Frypan
Valley. Reducing the number and duration of power outages in the area will mean more reliability
and predictable service for HCE customers. For instance, the two-turbine installation would
eliminate the annual outage for maintenance because the second turbine can continue to
function while the annual service on the other is performed. This outage often lasts up to 10 days
and other energy and transmission sources must be used as backup during this time and lack the
voltage support that the Ruedi generators provide.
Community Office of Resource Efficiency
Aspen has been a member of the Community Office of Resource Efficiency (CORE) since its
inception 30 years ago. Founding members of CORE have pointed to the important role that
development of the Ruedi powerplant played in kick-starting the move towards renewable
energy and keeping a focus on energy efficiency throughout the Roaring Fork Valley. CORE has
supported the development of the renewable sources with grants and incentive programs
supported by funding from Aspen and Pitkin County and the continuation of power being
available from the Ruedi Powerplant into the future would be amongst the most significant.
Continued power delivery from the Ruedi Powerplant is critically important to the energy future
of the Roaring Fork Valley as a whole.
State of Colorado
Governor Polis ran on a platform of achieving 100% Renewable Energy by 2040. This goal is
motivated by the imperative to fight climate change and curb pollution of Colorados air and
water, as well as the opportunity to drive innovation and harness the consumer savings and
economic benefits of leading the transition to a clean energy economy. The City of Aspen
achieved the goal of utilizing 100% renewable energy beginning in 2014. Continuing to meet this
local goal is supported by optimizing the energy production resulting from improvements to the
Ruedi powerplant. This additional renewable energy supports the statewide goal of getting to
100% by 2040. During 2023, Colorado House Bill 23-1039 was passed and requires electric load-
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serving providers to submit a resource adequacy report to the Colorado Energy Office (CEO)
beginning in April 2024. As the state of Colorado and the country increase loads through
electrification and as carbon-based generation sources are retired, understanding load and
resource adequacy on the electric grid is paramount. The Ruedi Powerplant second turbine and
reporting of the additional power output required by HB 23-1039 will support attainment of
these goals on a statewide basis.
Expected Water Needs of the System
The addition of a second turbine to be funded through the Proposed Project would also increase
the firm capacity output of the Ruedi Powerplant by 0.5 MW to 1.2 MW during the winter
months. This would be accomplished by scheduling the release of contracted water storage that
is available to Aspen in Ruedi Reservoir. The existing turbine setup relies on the presence of plant
personnel to adjust flow volumes. The project would include additional automation that would
allow reservoir release volumes to be adjusted remotely utilizing the proposed second turbine.
Aspen proposes to include power production as one of the purposes of a USBR water contract
held by Aspen. That contract is for 440 acre-feet that may be and taken out of Ruedi Reservoir
storage pursuant to Aspens request as a contract holder. That volume of water is sufficient to
allow an increase in flow volumes to the turbine ranging from 30-70 cfs to match peak hour
capacity requirements of the electric utility. This new operation would produce between 0.5 to
1.2 MW using the second turbine during peak hour conditions. Peak hour conditions may typically
occur 27 times during a winter season (October-March) and are approximately 2-3 hours in
duration. Details of how this additional capacity would be realized by using specifically timed
releases from contracted water storage during certain peak hour demands that occur on the
Aspen Electric Utility system. The results show how peak hour production could be increased
from a new Ruedi turbine to match the electric system demands. Revisions to specify
hydroelectric power generation as a purpose of the existing USBR contract would be necessary
to operate the facility with the winter peaking operation described above. The proposed capital
improvement project would also include the automated turbine equipment necessary to operate
to improve the firm capacity during winter months. The water released during winter conditions
would also benefit downstream aquatic habitat through additional flow releases timed to break
up icing conditions in the Fryingpan River.
1.5.2.2 S UBCRITERION B.2 -D ESCRIPTION OF THE A MOUNT OF R ENEWABLE E NERGY G ENERATED
Describe any energy efficiencies that are expected to result from implementation of the water
conservation or water efficiency project (e.g., reduced pumping).
The Proposed Project is not expected to include energy efficiencies.
1.5.3 E VALUATION C RITERION CO THER P ROJECT B ENEFITS (15 POINTS)
Up to 15 points may be awarded under this criterion. This criterion prioritizes projects that address
a specific water and/or energy concern(s), including enhancing drought resilience and
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sustainability, addressing the current and future impacts of climate change, and providing
ecological benefits.
Resilience and Sustainability Benefits. Will the project address a specific water and/or energy
sustainability concern? Please address the following:
Explain and provide detail of the specific issue(s) in the area that is impacting water
resilience and sustainability. Consider the following:
o Describe recent, existing, or potential drought or water scarcity conditions in the
project area.
o Is the project in an area that is experiencing, or recently experienced, drought or
water scarcity?
o Describe any projected increases to the severity or duration of drought or water
scarcity in the project area. Provide support for your response (e.g., reference a
recent climate informed analysis, if available).
Explain and provide detail of the specific issue(s) in the area that is impacting energy
sustainability, such as reliance on fossil fuels, pollution, or interruptions in service.
Please describe how the project will directly address the concern(s) stated above.
Will the project directly result in more efficient management of the water supply? For
example, will the project provide greater flexibility to water managers, resulting in a more
efficient use of water supplies?
Please address where any conserved water as a result of the project will go and how it will
be used, including whether the conserved water will be used to offset groundwater
pumping, used to reduce diversions, used to address shortages that impact diversions or
reduce deliveries, made available for transfer, left in the river system, or used to meet
another intended use.
o Indicate the quantity of conserved water that will be used for the intended
purpose(s).
o Provide a description of the mechanism that will be used, if necessary, to put the
conserved water to the intended use.
Will the project assist States and water users in complying with interstate compacts?
Will the project help to prevent a water-related crisis or conflict? Is there frequently
tension or litigation over water in the basin?
As energy production has declined at the Ruedi Powerplant, Aspens energy supply has
increasingly relied on renewable energy supplies that are available in a more intermittently and
with less dependability than hydropower. For extensive discussion of the threat declining energy
production at the Ruedi Powerplant plays on the renewable energy supply for Aspen and other
key partners, and on the role the Proposed Project will play in providing reliable renewable
energy to these stakeholders, see Section 1.5.2 above.
Ecological Benefits. In addition to the separate WaterSMART Environmental Water Resources
Projects NOFO, this NOFO places a priority on projects that that result in ecological benefits,
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through this section and other sections above, consistent with the SECURE Water Act. Please
provide information regarding how the project will provide ecosystem benefits, including the
following:
Will the project benefit species (e.g., federally threatened or endangered, a federally
recognized candidate species, a state listed species, or a species of particular recreational,
or economic importance)? Please describe the relationship of the species to the water
supply, and whether the species is adversely affected by a Reclamation project or is subject
to a recovery plan or conservation plan under the Endangered Species Act (ESA).
Will water remain in the system for longer periods of time? If so, provide details on
current/future durations and any expected resulting benefits (e.g., maintaining water
temperatures or water levels, recreational benefits, etc.).
Will the proposed project reduce the likelihood of a species listing or otherwise improve
the species status?
Please describe any other ecosystem benefits as a direct result of the project.
The expected benefits to Endangered Species associated with improved water management are
described above in Section 1.5.2.1, Improvements to water management that are associated
with the proposed project are expected to result because of the ability to control flow releases
that better match water requirements on a real time basis and consider the complex nature of
coordinated water releases from a number of upstream reservoirs and the nature of fluctuating
hydrologic conditions that occur throughout the watershed.
Climate Change: E.O. 14008 emphasizes the need to prioritize and take robust actions to reduce
climate pollution; increase resilience to the impacts of climate change; protect public health; and
conserve our lands, waters, oceans, and biodiversity.
Describe how the project addresses climate change and increases resiliency. For example,
does the project help communities adapt to bolster drought resilience?
Does the project seek to improve ecological resiliency to climate change?
Does the proposed project seek to reduce or mitigate climate pollutions such as air or
water pollution?
Does the proposed project include green or sustainable infrastructure to improve
community climate resilience?
Does the proposed project contribute to climate change resiliency in other ways not
described above?
The Proposed Project will increase the amount of renewable energy available, and result in
reduction of carbon emissions documented above in Section 1.5.2.1.
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1.5.4 E VALUATION C RITERION DD ISADVANTAGED C OMMUNITIES, I NSULAR A REAS, AND T RIBAL
B ENEFITS (15 POINTS)
Up to 15 points may be awarded based on the extent that the project demonstrates support for
the Biden-Harris Administrations priorities, including E.O. 14008: Tackling the Climate Crisis at
Home and Abroad and the Presidents memorandum, Tribal Consultation and Strengthening
Nation-to-Nation Relationships.
Please address only those priorities that are applicable to your project. It is not necessary to
address priorities that are not applicable to your project. A project will not necessarily receive
more points simply because multiple priorities are addressed. Points will be allocated based on
the degree to which the project supports one or more of the priorities listed, and whether the
connection to the priority(ies) is well supported in the application.
1.5.4.1 S UBCRITERION D.1. D ISADVANTAGED COMMUNITIES
E.O. 14008 affirms the advancement of environmental justice for all through the development
and funding of programs to invest in disadvantaged communities. This criterion, which is used to
identify projects that advance the Justice 40 Initiative, includes all Federally recognized Tribes and
Tribal entities, and any disadvantaged communities in insular areas (American Samoa, Guam, the
Northern Mariana Islands, or the Virgin Islands) identified pursuant to the following criteria.
Please use the White House Council on Environmental Qualitys interactive Climate and
Economic Justice Screening Tool (CEJST), available online at Explore the map - Climate &
Economic Justice Screening Tool (screeningtool.geoplatform.gov/en/#17.59/36.63278/-
105.181329) to identify any disadvantaged communities that will benefit from your
project. The CEJST developed by the White House Council on Environmental Quality is a
geospatial mapping tool that utilizes publicly available, nationally consistent data sets
related to climate change, the environment, health, and economic opportunity to identify
disadvantaged communities. In addition to identifying specific census tracts that are
disadvantaged, the CEJST includes the lands of Federally recognized Tribes as
disadvantaged communities. In addition, regardless of whether a Federally recognized
Tribe has land, all Federally recognized Tribal entities are considered disadvantaged
communities for the purposes of the Justice40 Initiative.
If applicable, describe how the proposed project will serve or benefit a disadvantaged
community, identified using the tool. For example, will the project improve public health
and safety by addressing water quality, add new water supplies, provide economic growth
opportunities, or provide other benefits in a disadvantaged community?
The Proposed Project increases the amount and reliability of renewable energy provided to
MEAN members as detailed throughout this Technical Report and in Section 1.5.2 above. MEAN
members include both disadvantaged communities and tribes as described in detail in the letter
of support from MEAN included in Section 9 below, and with key language from that letter as
follows:
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MEAN is a wholesale power provider that was formed in 1981 by thirteen
Municipalities that wanted a say in their power supply. Today, it serves sixty-one
communities across four states Nebraska, Colorado, Wyoming, and Iowa. The
majority of MEANs communities are small communities located in rural areas, 80%
have populations under 10,000. One third are considered disadvantaged according
to the Federal Climate and Economic Justice Screening Tool (CJEST).
As MEAN expanded its footprint across the Direct Current (DC) Tie Interconnection
into Colorado and Wyoming to serve Aspen and other communities, having load on
both sides of the DC Ties allowed MEAN to provide benefits to Native American
Tribes that it wouldnt have been able to without communities like Aspen. When
Firm Electric Service Allocations were granted by the Western Area Power
Administration to provide electricity from their hydropower facilities in the Western
Interconnection to four Tribes located in the Eastern Interconnection, there was no
reliable way to deliver the energy to those Tribes. The Tribes were receiving electric
service from multiple providers and the reliability of the DC ties and costs of
transmission compounded the difficulty. Since MEAN had loads to serve in the
Western Interconnection, it could utilize that hydroelectric power allocated to the
tribes to serve the MEAN communities. The tribes receive a direct cash benefit from
MEAN in return for the energy through a Benefit Crediting Agreement. The Tribes
that benefit from MEAN are the Iowa Tribe of Kansas, and the Nebraska Kickapoo
Tribe, Prairie Band Tribe, and Sac and Fox Tribe.
Furthermore, the Climate and Economic Justice Screening Tool was used to examine lands
surrounding the project location and identified no additional disadvantaged communities or
federally recognized tribes in proximity to this proposed project. Aspen has consulted with the
State Historic Preservation Office (SHPO) regarding the proposed project and no issues have been
identified. As part of the FERC license amendment process, Aspen has initiated consultation with
the two federally recognized Ute tribes and has committed to maintaining communications
regarding any identified tribal concerns. Refer to the discussion under Section 3 Environmental
and Cultural Resource Compliance regarding this consultation.
1.5.4.2 S UBCRITERION D.2. T RIBAL BENEFITS
The Department is committed to strengthening tribal sovereignty and the fulfillment of Federal
Tribal trust responsibilities. The Presidents memorandum, Tribal Consultation and Strengthening
Nation-to-Nation Relationships, asserts the importance of honoring the Federal Governments
commitments to Tribal nations. Address the following, if applicable:
Does the proposed project directly serve and/or benefit a Tribe? Will the project increase
water supply sustainability for an Indian Tribe? Will the project provide renewable energy
for an Indian Tribe?
Does the proposed project support Tribal led conservation and restoration priorities,
and/or incorporate or benefit indigenous traditional knowledge and practices?
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Does the proposed project directly support tribal resilience to climate change and drought
impacts or provide other Tribal benefits such as improved public health and safety through
water quality improvements, new water supplies, increased renewable energy, or
economic growth opportunities? Does the proposed project support Reclamations Tribal
trust responsibilities or a Reclamation activity with a Tribe?
The Proposed Project has benefits to tribes, as described in Section 1.5.4.1 above.
1.5.5 EVALUATION CRITERION EC OMPLEMENTING O N-F ARM IRRIGATION IMPROVEMENTS (8 POINTS )
Up to 8 points may be awarded for projects that describe in detail how they will complement on-
farm irrigation improvements eligible for NRCS financial or technical assistance.
The Proposed Project does not include on-farm irrigation improvements.
1.5.6 E VALUATION C RITERION FR EADINESS TO P ROCEED (8 POINTS)
Up to 8 points may be awarded for this criterion.
Points may be awarded based upon the extent to which the proposed project is capable of
commencing upon entering into a financial assistance agreement. Note: If your project is selected,
responses provided in this section will be used to develop the scope of work that will be included
in the financial assistance agreement.
Applications that include a detailed project implementation plan (e.g., estimated project schedule
that shows the stages and duration of the proposed work, including major tasks, milestones, and
dates) will receive the most points under this criterion.
Identify and provide a summary description of the major tasks necessary to complete the
project. Note: Do not repeat the more detailed technical project description provided in
Section D.2.2.2 Application Content. This section should focus on a summary of the major
tasks to be accomplished as part of the project.
Describe any permits that will be required, along with the process for obtaining such
permits.
Identify and describe any engineering or design work performed specifically in support of
the proposed project.
Describe any new policies or administrative actions required to implement the project.
Describe the current design status of the project. If additional design work is required prior
to construction, describe the planned process and timeline for completing the design work.
Please also include an estimated project schedule that shows the stages and duration of
the proposed work, including major tasks, milestones, and dates. Milestones may include,
but are not limited to, the following: complete environmental and cultural compliance;
mobilization; begin construction/installation; construction/installation (50% complete);
and construction/installation (100% complete). Was the expected timeline for
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environmental and cultural compliance discussed with the local Reclamation regional or
area office?
Aspen has demonstrated its readiness to proceed. Aspen has developed a long-standing
relationship with USBR as a partner in the operation of Ruedi Reservoir and is committed to
continuing this relationship. Aspen has demonstrated that the project is financially and
technically feasible and has extensively studied the issues that have led to declining energy
production. Aspen has identified the most desirable means of improving the Ruedi Powerplant
to modernize its operations and has selected the most appropriate technology. Aspen has
analyzed the financial feasibility of the Proposed Project and considered other alternatives that
would provide an equivalent energy benefit. The financial feasibility study has demonstrated that
the cost of adding the second turbine and upgrading the existing equipment provides a
substantial net positive present value relative to the cost of continuing to purchase primarily
wind energy. Aspens adopted budget and capital plan includes funding for significant portions
of Aspens share of the total project cost, principally focusing on the need to upgrade the existing
generation equipment to ensure that power generation from the Ruedi Powerplant is available
into the next FERC licensing term 50 years into the future. The additional funding need from
Aspen to provide matching funds can be secured through Aspens normal budget process or
through obtaining a loan from the Colorado Water Resources and Power Development Authority.
Aspen has completed substantial efforts aimed at consulting with parties affected by the
Proposed Project and is committed to continuing these efforts into the future. Aspen has gained
experience regarding the compliance requirements of Federal and State regulatory agencies with
authority over construction below the high water line. As a result of the prior construction work
and experience gained, Aspen has realistic expectations on the amount of work required to
mitigate any short-term impacts associated with construction activities.
Summary of Tasks
Milestone dates that describe tasks to be completed are described in the Project Timeline in
Section 1.5.6.1 below. Included in the task list is a description of the required permits to complete
the project. Aspen anticipates contracts for: 1) engineering design and construction observation;
2) the turbine, generator and controls; 3) the building addition and civil works; 4) installation and
commissioning of the new turbine and generator; and 5) upgrading the existing turbine and
generation equipment.
Permits Required
The permits required include the FERC License Amendment, Pitkin County 1041 Land Use
Approval, Colorado Water Quality Control Division Section 401 Certification, and Army Corps of
Engineers Section 404 Permit. Details of the permitting requirements and the process to obtain
those required permits are described in the Section 4. Required Permits and Approvals. That
discussion includes the current status of consultation together with a description of additional
actions that will be taken as the details of the design are developed. The purpose of developing
those details is to identify specific requirements that will mitigate short term construction
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impacts. The application for a Non-Capacity License Amendment (Project 3603) required to add
the second turbine has been submitted and action by FERC is expected by March, 2026. Details
of the FERC license amendment application are included as Attachment 1.
New Administrative Procedures
To implement the portion of the Proposed Project that would benefit peak power production,
thereby benefitting the downstream fishery by reducing winter icing conditions, a new water use
of Ruedi Reservoir water will need to be added to Aspens existing USBR water contract. This
proposed revision would go beyond the existing description of augmentation uses associated
with Aspens contract. This will be requested by Aspen with an expected action by USBR by March
2028.
Status of Engineering and Design Efforts
The required FERC license submittals including Exhibits F-1, F-2 and G have been submitted and
required a 30% design level completion. Aspen intends to bring the design level to 70% and to
complete the bid packages for contractor selection as shown on the project timeline, below.
Consultation with the Colorado Division of Parks and Wildlife (CPW) with regard to fishery
protection for construction activities proposed below the high waterline. This together with other
related permits (see discussion above) needs to be completed before design completion and bid
award.
Prior Discussions with USBR regarding Environmental and Cultural Resource Compliance
Aspen began discussion with USBR in 2020 regarding re-licensing the facility. As part of the joint
decision that FERC would retain jurisdiction over Aspens project, it was determined that FERC
would continue to take the federal lead over activities related to environmental and cultural
resource compliance. Details for this process are included in the project timeline below.
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Page 35of 741.5.6.1 PROJECT TIMELINEThe proposed project is planned to be completed as detailed below in Figure 8and Table 4. The schedule allows for obtaining a modification to the FERC License to allow for the installation of the second turbine, along with the other modifications detailed above in Section 1.4. Figure 8. Proposed Project Timeline108
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Table 4. Proposed Project Milestones
Date Milestone Title Milestone Details
May 2024 FERC Phase 1 Phase 1 of FERC Licensing Complete
Sep 2024 FERC Phase 2 Phase 2 of FERC Licensing Complete with
Submittal Amendment Application
Nov 2024 FERC Finalized, 30% Design,
FERC NOI/Prelim. App.
1. FERC Exhibits Finalized, 30% Design
Level Complete
2. FERC Notice of Intent/Preliminary
Application Document Materials
Submitted
Dec 2024 Financing Financing Arranged through Outside Entity if
Required
Feb 2025 Grant Award Aspen City Council Acceptance of USBR Grant
Award
Nov 2025 70% Design 70% Design Level Complete
Dec 2025 Bid Documents Bid Documents Completed and Circulated
(Early Equipment Order Required August 2025)
Feb 2026 USBR Agreements
1. Modified Agreement with USBR to
Include new Project Facilities
2. Modification of USBR Contract (Water
Delivery) to Include Power Production
Mar 2026 Pitkin Co. 1041 & FERC
Modifications
1. Amendment of Pitkin County 1041
Permit
2. FERC License Modifications Issuance
and Acceptance
Apr 2026 Contract Award &
Construction
1. Contract Awards by Aspen City Council
2. Construction Initiated
Aug 2026 Equipment Delivery
Equipment Delivery
Note: early equipment order required for one
year lead time
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Date Milestone Title Milestone Details
Sep 2026 401 Certification Obtain Section 401 Certification from Colorado
Department of Public Health and Environment
Oct 2026 USACE 404 Permit Obtain Section 404 Permit from U.S. Army
Corps of Engineers
Feb 2027 404 Permit Work
Completion Complete Work Covered by Section 404 Permit
Mar 2027 New Turbine Complete Construction Completion on Addition of
Second Turbine
Apr 2027 USBR Acceptance Final Acceptance of Installed facilities by USBR
May 2027 New Turbine Commissioning Final Project Commissioning and
Documentation for Second Turbine
Jul 2027 New Turbine Commercial
Operations
Commercial Operations for Second Turbine
Initiated
Jan 2028 Turbine Restoration
Complete
Restoration work on existing turbine/generator
complete
Mar 2028 USBR Contract Amend. Amend Contract with USBR to Recognize Water
Releases as Part of Water Supply Contracts
Apr 2028 Corrections & Agreement
Amend.
Identify Any Necessary Corrections (Punchlist)
and Amend 2010 Operating Agreement with
USBR (if required)
Jul 2028 Correction Work Complete Needed Correction Work (Punchlist
Items)
Oct 2028 Monitoring Plan & Operating
Protocol
Refine Monitoring Plan and Automated
Operating Protocol with USBR Staff
Nov 2028 As-Built Drawings &
Operating Procedures
As-built Drawings and Automated Operating
Procedure Guidelines Completed
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1.5.7 E VALUATION C RITERION GC OLLABORATION (5 POINTS)
Up to 5 points may be awarded for projects that promote and encourage collaboration among
parties in a way that helps increase the sustainability of the water supply.
Please describe how the project promotes and encourages collaboration. Consider the following:
Is there widespread support for the project? Please provide specific details regarding any
support and/or partners involved in the project. What is the extent of their involvement in
the process?
What is the significance of the collaboration/support?
Will this project increase the possibility/likelihood of future water conservation
improvements by other water users?
Will the project benefit multiple sectors and/or users (e.g., agriculture, municipal and
industrial, environmental, recreation, or others)?
Please attach any relevant supporting documents (e.g., letters of support or memorandum
of understanding).
The extensive amount of Proposed Project collaboration is described in Section 4. Required
Permits and Approvals and in Section 3. Environmental and Cultural Resource Compliance.
The Required Permits and Approvals section summarizes the identification of Proposed Project
stakeholders and Aspens outreach efforts to gain the input of those with interest in Ruedi
Reservoir operations. The Environmental and Cultural Resource Compliance section summarizes
collaboration with affected agencies and entities that may have concerns regarding these issues.
Commitments to continue consultation efforts and to implement any required mitigation
measures are described under the Required Permits and Approvals section.
1.5.8 E VALUATION C RITERION HN EXUS TO RECLAMATION (4 POINTS )
Up to 4 points may be awarded if the proposed project is connected to a Reclamation project or
Reclamation activity. No points will be awarded for proposals without connection to a
Reclamation project or Reclamation activity.
Describe the nexus between the proposed project and a Reclamation project or Reclamation
activity. Please consider:
Does the applicant have a water service, repayment, or operations and maintenance
(O&M) contract with Reclamation?
If the applicant is not a Reclamation contractor, does the applicant receive Reclamation
water through a Reclamation contractor or by any other contractual means?
Will the proposed work benefit a Reclamation project area or activity?
Is the applicant a Tribe?
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The existing operating and contractual relationship of the Proposed Project as it pertains to USBR
operations and goals is described throughout this document. Aspen has a water service and
repayment agreement related to the Ruedi Project through USBR. Hydroelectric power
development is a congressionally authorized purpose of the Fryingpan Arkansas Project of which
Ruedi Reservoir is a described element in the legislation. Hydropower generation was considered
as part of USBRs design of the dam and resulted in the construction of the Wye bifurcation on
the outlet structure during the 1960s to allow development of hydropower. Aspen and USBR
have been actively engaged in working on design and operational details that allow for power
production while benefiting USBRs water release determinations on nearly a daily basis for the
last 40 years. Aspen has participated in nearly every annual planning meeting concerning
reservoir operations during that same period and adjusts its own power supply planning and
operations in accordance with USBRs operating plans for the Ruedi Project. Aspen is a contract
water purchaser and has also been a participant in USBRs past effort to evaluate alternative
means to market and manage water releases from Ruedi Reservoir in accordance with plans that
have evolved over the life of the dam. Aspen has consulted with USBR staff regarding the federal
licensing options and requirements, existing and future flow release, process to evaluate and
mitigate cultural and environmental effects of the project, details of the engineering design that
pertain to the existing dam infrastructure, as well as USBNRs interest in further automating
existing reservoir operations. Aspen has committed to further this relationship in recognition of
USBRs interests by incorporating Proposed Project design features that will strengthen existing
operating agreements.
The limitations in the design and resulting power production and hydraulic operating conditions
at the existing hydroplant have been identified by Aspen in consultation with USBR. Aspen has
worked with USBR on several modifications to the operating agreement and has coordinated
with USBRs efforts to further automate the operation of water releases from Ruedi Reservoir.
The Proposed Project will continue to provide USBR with the ability to manage water releases
based on annual operating plans and daily decisions on water release volumes. The Proposed
Project will provide USBR with improved ability to manage supplies by timing water releases in a
manner that matches their contractual obligations and other water management objectives. The
improvements will also provide for real time adjustment and allow USBR staff to better manage
water supplies considering the integrated nature of multiple reservoir operations that affect the
mainstem of the Colorado River. The Proposed Project will improve USBRs ability to meet its
obligations under the Endangered Species Act for the endangered fish in the Colorado River
mainstem because of improvements to the amount of water that can be released withing the
hydraulic capacity and because of automations of systems that adjust the flow volume.
1.6 PERFORMANCE MEASURES
Aspen proposes to measure and document the effectiveness of the Proposed Project in meeting
the objectives outlined by using the existing reports submitted to U.S. Energy Information
Administration (EIA). The total gross (before loss) and net (after loss) energy for the Ruedi
Hydroelectric Powerplant are already required to be included on the EIA Annual Report together
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with the energy sold to municipal customers. The report is submitted annually under a separate
Federal requirement and covers the calendar year. This report will document the energy output
and can also be used to demonstrate that the hydroelectric power sources have, in fact, served
to meet the desired percentage of the total electric load on the Utility. A similar annual report is
submitted to FERC and covers the Federal fiscal year. The increase in energy capacity can be
documented with reporting from monthly turbine output shown on billing statements provided
by MEAN. If the facility is capable of production of the 5.0 MW nameplate capacity as
documented on the monthly MEAN invoice, the objective of the project with respect to increase
the capacity of the turbine this project objective will be demonstrated to have been met.
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2. BUDGET NARRATIVE
The project budget includes:
1. Funding plan and letters of commitment
2. Budget proposal
3. Budget narrative
2.1 FUNDING PLAN AND LETTERS OF COMMITMENT
Describe how the non-Federal share of project costs will be obtained. Please identify the sources
of the non-Federal cost share contribution for the project, including:
Any monetary contributions by the applicant towards the cost-share requirement and
source of funds (e.g., reserve account, tax revenue, and/or assessments)
Any costs that will be contributed by the applicant
The City of Aspen will fund the non-Federal share of project costs from their Enterprise Fund for
the Electric Utility, which is fully funded through revenue from monthly billing, electric
community investment fees, permit review fees, and other miscellaneous revenue sources.
Secondarily, City Council may investigate other revenue sources including loans.
In addition, please identify whether the budget proposal includes any project costs that have been
or may be incurred prior to award.
No project costs will be incurred prior to award.
Table 5. Total Project Cost: Summary of Federal and Non-Federal Funding Sources
Funding Source Amount
Costs to be reimbursed with the
requested Federal Funding
$4,879,155
Costs to be paid by applicant $4,879,155
Value of third-party contributions N/A
Total Project Cost $9,758,310.00
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Table 6. Proposed Project Budget
Budget Item Description $/Unit Total Cost
Personnel (salaries and wages of employees of applicant organization)
N/A None $0.00
Fringe Benefits (cost of leave, insurance, pensions, etc.)
N/A None $0.00
Travel (travel incurred in performance of project activities)
N/A None $0.00
Equipment (over one year of useful life and above $5,000)
N/A None $0.00
Supplies (less than $5,000 regardless of useful life)
N/A None $0.00
Contractual (contracts and subawards other than those for construction activities)
N/A None $0.00
Construction (Note: Subsections to address engineering, design, permitting, acquisition,
installation, construction, renovation, etc.)
Recipient-Owned Equipment Use Costs None $0.00
Construction Materials - construction materials and non-
movable equipment None $0.00
Contractual - Any contract of $250,000 or more (or 35% of
project or more) needs separate detailed description or
estimate
Contract #1 Engineering and Construction
Observation $1,626,385
Contract #2 Turbine, Generator, Switchgear,
Controls $2,667,000
Contract #3 Powerhouse Building, Penstock, and
Wye $3,129,925
Contract #4 Refurbishment and Upgrades $1,785,000
Contract #5 - Contingency $ 550,000
Other Construction-Related Costs - permitting, equipment
rental None
Other Direct Costs (rental costs and tuition remission)
N/A None $0.00
Total Direct Costs $9,758,310
Indirect Charges
N/A None $0.00
TOTAL ESTIMATED PROJECT COSTS $9,758,310
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2.2 BUDGET NARRATIVE
The budget narrative provides a discussion of, or explanation for, items included in the budget
proposal. The types of information to describe in the narrative include, but are not limited to,
those listed in the following subsections.
The purpose of the Proposed Project is to restore the original design capacity and the net annual
energy production of the facility to the original permitted capacity of 5.0 MW and to achieve as
close to the estimated annual production as possible. This will allow the facility to continue to
serve as one of the major electric energy sources for the City of Aspen Electric Utility while
contributing to the on-going goal of delivery of 100% renewable energy to Aspen's electric
customers. Maintaining and improving both the capacity and energy production from the Ruedi
Powerplant, while effectively using the hydropower resource, will contribute to maintaining a
seasonal balance between wind energy production and hydroelectric production, which will
continue to meet the energy requirements of Aspen's electric customers. This facility will be
owned and operated by the City of Aspen and will produce a predictable and low-cost power
output with a design life of approximately 50 years. Without such improvements, plant
production is expected to continue to diminish in relation to both permitted capacity as well as
in relation to historical energy production. Without improvements, the Ruedi Powerplant will be
the lowest cost electric source, with unit costs even lower than WAPA energy (federal
hydroelectric power source) for at least the next decade. However, the currently installed
equipment is not a good match with current reservoir operations and does not effectively utilize
the available hydroelectric resource. This Proposed Project will extend the physical and financial
life by an additional 40 to 50 years.
2.2.1 P ERSONNEL
Personnel is not anticipated for the Proposed Project.
2.2.2 F RINGE BENEFITS
Fringe Benefits are not anticipated for the Proposed Project.
2.2.3 T RAVEL
Travel is not anticipated for this the Proposed Project.
2.2.4 E QUIPMENT
No equipment valued at greater than $5,000 per unit is included in the Proposed Project.
2.2.5 S UPPLIES
All materials and supplies associated with the Proposed Project will be purchased by the selected
vendor and shown under the Construction category.
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2.2.6 C ONTRACTUAL
None.
2.2.7 C ONSTRUCTION
Proposed Project costs have been grouped into five (5) Supplier Contracts by the City of Aspen
engineer and the City of Aspens hydroelectric engineering consultant, Small Hydro Consulting,
LLC. Refer to Section 2.2.10 for contract details.
2.2.8 R ECIPIENT -O WNED E QUIPMENT U SE C OSTS
None.
2.2.9 C ONSTRUCTION M ATERIALS C ONSTRUCTION M ATERIALS AND N ON -M OVABLE E QUIPMENT
None.
2.2.10 C ONTRACTUAL A NY C ONTRACT OF $250,000 OR M ORE (OR 35% OF P ROJECT OR M ORE )
N EEDS S EPARATE D ETAILED D ESCRIPTION OR E STIMATE
Proposed Project expenses and recommended contract breakouts have been provided by Lindsay
George, PhD, PE, Small Hydro Consulting, LLC and Phil Overeynder, Utilities Engineer, City of
Aspen.
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Page 45 of 74 Table 7. Budget Narrative Ruedi Hydroelectric Powerplant Upgrades and Additions Contract # Description Quantity Unit Unit Price Total Price #1 Engineering and Construction Observation $1,626,385 Engineering and Construction Observation 20% $8,131,925 $1,626,385 #2 Turbine, Generator, Switchgear, Controls $2,667,000 Turbine, Generator, Switchgear and Controls 1 LS $2,667,000 $2,667,000 #3 Powerhouse Building, Penstock, and Wye - General Civil Contractor $3,129,925 DIV 03 - Concrete 1 LS $525,000 $525,000 Powerhouse Excavation Powerhouse Foundation Reinforcing DIV 05 - Metals 1 LS $75,000 $75,000 Floor and Roof Hatches Tailrace Grates Platform Beams and grating Safety railings, etc. DIV 08 - Powerhouse Doors and Windows 1 LS $40,000 $40,000 DIV 09 - Powerhouse Interior Finishes 1 LS $15,000 $15,000 DIV 13 - Special Construction 1 LS $150,000 $150,000 Powerhouse building DIV 22 - Plumbing 1 LS $15,000 $15,000 118
Page 46 of 74 Contract # Description Quantity Unit Unit Price Total Price #3 Floor drain Roof Vent Oil Water Separator DIV 23 - Heating and Ventilating 1 LS $13,500 $13,500 Unit Heaters Vents Exhaust Fan DIV 26 - Electrical 1 LS $450,000 $450,000 Powerhouse LV Electrical Duct bank and conduit to substation Generator/Controls connection DIV 33 - Utilities 1 LS $750,000 $750,000 Excavate for Penstock Backfill Wye and Penstock Tailrace Isolation Valve Bypass Valve and piping Install Turbine, Generator and Controls 1 LS $80,000 $80,000 119
Page 47 of 74 Contract # Description Quantity Unit Unit Price Total Price #3 DIV 901 - Mobilization 1 LS $16,400 $16,400 DIV 902 - Supervision and Personnel 1 LS $500,000 $500,000 Project Management Employee Travel Employee Subsistence DIV 907 - Temporary Job Construction 1 LS $65,000 $65,000 Utilities Job Office Job Transportation and Material Handling DIV 911 - Shop support 1 LS $38,000 $38,000 DIV 914 - Insurance 1 LS $42,000 $42,000 Contractor Bond 1 LS $38,000 $38,000 Overhead 7.5% $2,113,500 $158,513 Profit 7.5% $2,113,500 $158,513 #4 Refurbishment and Upgrades $1,785,000 Replacement Transformer and existing controls upgrade 1 LS $685,000 $685,000 Existing Turbine and Generator Refurbishment 1 LS $1,100,000 $1,100,000 #5 Contingency 1 LS $550,000 $550,000 TOTAL PROJECT BUDGET $9,758,310 120
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2.2.11 O THER C ONSTRUCTION -R ELATED C OSTS P ERMITTING, E QUIPMENT R ENTAL
None.
2.2.12 O THER D IRECT C OSTS
None.
2.2.13 I NDIRECT C OSTS
No indirect costs are included in the Proposed Project budget.
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3. ENVIRONMENTAL AND CULTURAL RESOURCES COMPLIANCE
To allow Reclamation to assess the probable environmental and cultural resources impacts and
costs associated with each application, all applicants should consider the following list of
questions focusing on the NEPA, ESA, and NHPA requirements. Please answer the following
questions to the best of your knowledge. If any question is not applicable to the project, please
explain why. The application should include the answers to:
Will the proposed project impact the surrounding environment (e.g., soil [dust], air, water [quality
and quantity], animal habitat)? Please briefly describe all earth-disturbing work and any work
that will affect the air, water, or animal habitat in the project area. Please also explain the impacts
of such work on the surrounding environment and any steps that could be taken to minimize the
impacts.
The short-term impacts of construction activities associated with the Proposed Project will be
evaluated through the environmental review process and through the Pitkin County land use
review and approval process (see Section 4. Required Permits and Approvals). In addition, short
term construction impacts to aquatic resources and water quality will be reviewed under the U.S.
Army Corps of Engineers (USACE) Section 404 Permit and through the Colorado Department of
Public Health and Environment (CDPHE). Aspen has also committed to working with the CPW to
develop details of analysing long- and short-term impacts and is committed to employing
measures that will ensure mitigation of any identified impacts. No known long-term impacts to
environmental resources have been identified.
As part of the process to obtain the requested license it is anticipated that FERC will be the lead
federal agency for NEPA compliance as described in the Section 4, below. As described by the
summary of consultation conducted to date, there have been very few comments concerning the
environmental effects of adding the proposed second turbine. Upgrading and modernizing the
existing plant will all take place within and immediately adjacent to the existing powerhouse.
Construction activities associated with the new turbine will primarily take place within existing
disturbed areas, with the exception of work associated with placing the proposed pre-cast
tailrace below high water within the existing plunge pool located at the base of the dam. Aspen
has discussed the project with CPW staff and has committed to consulting with CPW during the
process of getting to the 70% design level. It is anticipated that details of measures to protect
fish from temporary construction impacts will be discussed in detail with CPW. Aspen is aware of
past measures that were employed when this same area was disturbed at the time the original
tailrace was constructed and expects similar requirements from CPW related to the current
proposal.
Are you aware of any species listed or proposed to be listed as a Federal threatened or endangered
species, or designated critical habitat in the project area? If so, would they be affected by any
activities associated with the proposed project?
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No threatened or endangered species or designated critical habitat will be affected by any
activities associated with the Proposed Project. Pitkin County does not contain any federally
listed threatened or endangered species. Many lakes and streams in Pitkin County contain
Colorado River Cutthroat Trout, which is a Colorado species of special concern due to its limited
numbers and fragile ecosystem requirements. Based on current preliminary assessments, there
will be no impacts to Cutthroat Trout habitat during project implementation. Through
consultation with the CPW, the City will carefully identify aquatic resources impacted by
construction and will implement recommended measures.
Are there wetlands or other surface waters inside the project boundaries that potentially fall
under CWA jurisdiction as Waters of the United States? If so, please describe and estimate any
impacts the proposed project may have.
There are no wetlands in the Proposed Project area. The waters of the United States affected by
short-term construction activities include the area of the stilling basin below high water. The
short-term impacts to surface waters will be addressed through the USACE Section 404 Permit
as described in Section 4, below.
When was the water delivery system constructed?
The water delivery system for the City of Aspen will not be affected by the Proposed Project.
Will the proposed project result in any modification of or effects to, individual features of an
irrigation system (e.g., headgates, canals, or flumes)? If so, state when those features were
constructed and describe the nature and timing of any extensive alterations or modifications to
those features completed previously.
There will be no modification of or effects to any portion of an irrigation system because of the
Proposed Project.
Are any buildings, structures, or features in the irrigation district listed or eligible for listing on the
National Register of Historic Places? A cultural resources specialist at your local Reclamation
office or the State Historic Preservation Office can assist in answering this question.
There are no anticipated impacts to any buildings, structures, or features listed or eligible for
listing on the National Register of Historic Places from the Proposed Project.
Also detailed below in Section 4 is a discussion of consultation efforts to date with the SHPO and
the Ute Tribes. Aspen has committed to continuing outreach with these entities but to date no
specific comments related to cultural resources or compliance with any specific requirements
related thereto have been identified. Aspen submitted documentation to SHPO, per their
request, to inform them of FERCs designation as a nonfederal representative for purposes of
informal consultation.
Are there any known archaeological sites in the proposed project area?
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There are no known archaeological sites in the Proposed Project area.
Will the proposed project have a disproportionate and adverse effect on any communities with
environmental justice concerns?
There will be no disproportionately high or adverse effects on any communities with
environmental justice concerns resulting from the Proposed Project.
Will the proposed project limit access to, and ceremonial use of, Indian sacred sites or result in other
impacts on Tribal lands?
The Proposed Project will not impact tribal lands or access to ceremonial use of Indian sacred
sites. Aspen has not received any comments from any tribal representative regarding the
Proposed Project. The extent of consultation on matters of tribal interests is detailed under the
FERC License Amendment discussion and is included in Section 4. Required Permits and
Approvals.
Will the proposed project contribute to the introduction, continued existence, or spread of noxious
weeds or non-native invasive species known to occur in the area?
The Proposed Project will not contribute to the introduction, continued existence, or spread of
noxious weeds or non-native invasive species known to occur in the area.
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4. REQUIRED PERMITS AND APPROVALS
You should state in the application whether any permits or approvals are necessary and explain
the plan for obtaining such permits or approvals.
Note: Improvements to Federal facilities that are implemented through any project awarded
funding through this NOFO must comply with additional requirements. Reclamation may also
require additional reviews and approvals prior to award to ensure that any necessary easements,
land use authorizations, or special permits can be approved consistent with the requirements of
43 CFR Section 429 and that the development will not impact or impair project operations or
efficiency.
As part of the process to obtain the requested license amendment, it is anticipated that FERC will
be the lead federal agency for NEPA compliance. As described by the summary of consultation
conducted to date, there have been very few comments concerning the environmental effects
of the Proposed Project. Upgrading and modernizing the existing plant will all take place within
and immediately adjacent to the existing powerhouse. Construction activities associated with the
new turbine will primarily take place within existing disturbed areas with the exception of work
associated with placing the proposed pre-cast tailrace below high water within the existing
plunge pool located at the base of the dam. Aspen has discussed the project with CPW staff and
has committed to consulting with CPW during the process of getting to the 70% design level. It is
anticipated that details of measures to protect fish from temporary construction impacts will be
discussed in detail with CPW. Aspen is aware of past measures that were employed when this
same area was disturbed at the time the original tailrace was constructed and expects similar
requirements from CPW related to the current proposal.
Also detailed in Section 3 above, is a discussion of consultation efforts to date with the SHPO and
the three TribesUte Mountain Utes, Southern Utes, and Uintah and Ouray Utes. Aspen has
committed to continuing outreach with these entities but to date no specific comments related
to cultural resources or compliance with any specific requirements related thereto have been
identified. Aspen submitted documentation to SHPO, per their request, to inform them of FERCs
designation as a nonfederal representative for purposes of informal consultation.
The existing Ruedi Powerplant is completely in compliance with the requirements of the existing
FERC license. The most recent inspection report from FERC occurred on September 12, 2019.
The 2019 inspection report supports the existing limitations on energy production utilizing the
existing equipment configuration. On the date of the 2019 inspection, reservoir releases were
running at near optimum conditions for energy production, with releases at 336 cfs from a nearly
full reservoir (95% of maximum capacity on that date). Yet the power production was
documented at 2.6 MW or only 52% of the rated capacity of the turbine.
The Ruedi Powerplant is also regulated by a permit from Pitkin County and there are no
compliance issues with the local permit. The plant is operated in close daily coordination with
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USBR. There are no known federal, tribal, or state issues associated with the operation of the
existing facility.
The process of obtaining federal approval was jointly determined by FERC and USBR in
approximately 2022. In addition, Pitkin Countys land use review process as it pertains to the
proposed project has also been identified. The project timeline in Section 1.5.6.1 above
recognizes the time required to conduct the required consultation effort and to obtain the FERC
license amendment. Existing and proposed consultation related to the Water Quality
Certification and Section 404 Permit with an emphasis on gaining input from the CPW will occur
during the final design phase of the project.
The existing FERC License for the Ruedi Powerplant expires in 2033. Because Aspen is seeking to
add a second turbine to increase the capacity as well as the annual energy output of the facility,
an amendment to the FERC license is required. Aspen sought a determination from USBR and
from FERC as to the eligibility of the facility to be authorized through the Lease of Power Privilege
(LOPP) process as defined by USBR regulations. However, because the authorizing legislation for
the Fryingpan Arkansas Project and specifically improvements at Ruedi Dam did not specifically
authorize hydroelectric facilities, USBR and FERC concluded that Aspens facilities at Ruedi should
continue to be regulated by FERC. Specifically, FERC advised Aspen to seek an amendment to the
existing major license in order to authorize the addition of the second 1.2 MW facility. FERCs
recommended application is termed a non-capacity amendment.
Aspen submitted an application for an amendment to Project Number-3603-3 to FERC on
September 25, 2024. A copy of the Introductory Statement contained in that application is
attached as Attachment 1 to document Aspens compliance with the direction provided by FERC.
As part of the FERC license amendment process Aspen has initiated the required consultation
process.
Documentation of consultations initiated between 2019 through 2024 are summarized below.
Aspen obtained a grant from Colorado Water Resources and Power Development
Authority (CWRPDA) to study options for increasing energy production at Ruedi
Powerplant.
Aspen completed a feasibility study including modeling work on alternative plant
configurations and considering the effect that water release patterns have on the design
of the facility.
Aspen completed a financial feasibility study of expanding energy production at Ruedi
Powerplant vs. alternative sources of renewable energy supplies that would a similar
quantity of energy.
Aspen consulted with HCE regarding the existing connection of the power plant to the
local distribution circuit and maintenance of voltage and power quality.
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Aspen consulted with MEAN regarding the potential of increasing energy production at
Ruedi Powerplant to be consistent with the maximum allowable values in Aspens all
requirements power purchase agreements.
Aspen sought clarification from FERC staff whether license expiration can be accelerated
to allow for proposal of additional hydropower under new 50-year license request.
Aspen consulted with USBR and FERC regarding the potential for use of Lease of Power
Privilege process for new turbine and generator and for new license term
Aspen consulted with FERC about consultation requirements for non-capacity license
amendment.
Meeting held with Pitkin County via zoom to discuss both hydroelectric projects being
permitted (Maroon Creek 1041 and Ruedi 3603).
December 11, 2023: Aspen took Pitkin County on site visit to explain Proposed Project
additions, upgrades to existing equipment and license amendment process.
December 19, 2023: Email sent from Aspen to Eagle County regarding mailing addresses
to include Eagle County in stakeholder notifications.
February 1, 2024: Email sent from Aspen to Colorado SHPO to discuss Ruedi Powerplant
license amendment and to discuss potential for cultural resources or ancestral lands and
rights within vicinity of project.
February 5, 2024: Aspen requested FERCs designation as non-federal representative for
purposes of Section 106 consultation.
February 9, 2024: Letter received from FERC to Colorado SHPO notifying that FERC
designated Aspen as non-federal representative for Section 106 compliance during pre-
application consultation.
February 9, 2024: Reply email sent to Aspen from Colorado SHPO notifying Aspen that
FERC approval should be received by SHPO before it consults with Aspen.
February 23, 2024: Meeting held between Aspen and USBR (Operation & Maintenance
Division and Resources Division) to discuss project and lead agency. Aspen sent a follow-
up email of project concept and existing approval documents.
July 1, 2024: Aspen set up the Ruedi Project website to post draft license application and
date and contacts to submit comments.
July 1, 2024: Aspen mailed postcard to stakeholders notifying them of draft license
amendment application review and comment period.
July 2, 2024: Aspen Daily News published notice of availability of draft license amendment
application.
August 8, 2024: Aspen gave project presentation to Ruedi Water and Power Authority.
August 15, 2024: Aspen gave project presentation to Pitkin County Healthy River &
Streams.
August 15, 2024: Email sent from Aspen to HCE to remind them of draft application and
see if there are concerns.
August 15, 2024: Letter sent to Aspen from USACE notifying Aspen of likelihood of CWA
jurisdiction and section 404 requirements.
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August 21, 2024: Email reply received from HCE to Aspen stating that they have no
concerns.
September 19,2024: An Article by Aspen Journalism on the proposed project is published
in the Aspen Times.
September 25, 2024, Aspen mailed postcards to stakeholders and post notice in
newspaper about its submittal to FERC of final license amendment application on
September 18, 2024.
September 25, 2024: The City of Aspen filed an application with FERC seeking an
amendment to Project 3603-3 to allow the addition of the proposed second turbine and
related project facilities. The final application provides that stakeholders will have the
opportunity to comment to FERC on their website.
September 25, 2024: The City of Aspen Community Voice website posted a copy of the
final application to amend the FERC license in order to add the proposed second turbine.
4.1 SUMMARY OF ADDITIONAL OUTREACH WITH RESOURCE AGENCIES AND TRIBES
4.1.1 B UREAU OF RECLAMATION
February 23, 2024: A meeting occurred between Aspen and USBR (Operation & Maintenance
Division and Resources Division) via the web to discuss project and lead agency. Aspen sent a
follow-up email of project concept and existing approval documents. USBR stated FERC is the
lead agency for environmental review and licensing.
4.1.2 C OLORADO P ARKS AND W ILDLIFE
In addition to stakeholder postcards sent to CPW, Aspen placed numerous phone calls and sent
emails to CPW to inform them of the documents available for public review and to invite
conversation about fish and wildlife resources or other concerns of the agency. There were no
comments provided from CPW during the comment period on draft license amendment
application. Aspen met with CPW staff on August 6, 2024, to discuss the Proposed Project details
and how Aspen will consult with CPW to get input during 80% design of the Project.
4.1.3 C OLORADO STATE HISTORIC P RESERVATION O FFICE
In addition to stakeholder postcards sent to the agency, Aspen made phone calls to the SHPO to
engage in conversation about listed historic properties, eligible properties or ancestral lands or
resources within the vicinity of the Proposed Project to confirm Aspens findings that none of
these designations exist within or near the Proposed Project area. Aspen submitted
documentation to SHPO, per their request, to inform them of FERCs designation as a nonfederal
representative for purposes of informal consultation during the pre-application consultation
efforts. Aspen attempted to have a phone conversation or meeting but there were no responses
from SHPO, and SHPO provided no comments during public review of the draft license
amendment application.
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4.1.4 C OLORADO DEPARTMENT OF P UBLIC HEALTH AND ENVIRONMENT
In addition to stakeholder postcards sent to the agency, Aspen placed phone calls and sent emails
to CDPHE to inform them of the draft license amendment application for public review and to
discuss the current water quality certification and whether an amended 401 certification will be
required for the Proposed Project. Aspen shared with CDPHE the existing 401 certification for the
Ruedi hydroelectric project. There were no comments provided from CDPHE during the comment
period on the draft license amendment application.
4.1.5 U TE TRIBE
While Aspen was reaching out to the Tribes counsel, Aspen stated that it would also like to
inform the Tribe of the Proposed Project that would be on the tails of the Maroon Creek
hydropower license/exemption application. In addition to stakeholder postcards sent to the
Tribe, at the end of September of 2023, following the letter from the Ute Indian Tribe to FERC
about Aspens other hydroelectric project (the Maroon Creek Project, No. 10441) the City of
Aspen made efforts to meet with the Tribe to also describe the Proposed Project. The Ute Tribe
did not provide comments to Aspen during public review of the draft license amendment
application.
4.1.6 U.S. FOREST SERVICE
On October 3, 2023, the U.S. Forest Service (USFS) acknowledged process and request to keep
involved as Proposed Project progresses. Also, USFS would reach out to their regional FERC
coordinator.
4.1.7 P ITKIN C OUNTY
In addition to stakeholder postcards, Aspen has participated in a number of phone calls, site visits
and meetings with Pitkin County to provide Proposed Project information and to discuss
applicability of County regulations to the Proposed Project modifications. Pitkin County did not
provide comments during public review of the draft license amendment application.
4.1.8 H OLY C ROSS ENERGY
In addition to stakeholder postcards, Aspen reached out during the end of the comment period
to remind the energy company of the comment period deadline and to see if there were any
concerns or comments. HCE did not provide comments during public review of the draft license
amendment application but described in an email that there were not any concerns with
information presented at that time.
4.1.9 R UEDI WATER AND P OWER A UTHORITY
A presentation on the addition of a second turbine and the FERC license amendment process was
made to the Board members of the of the Ruedi Water and Power Authority. Following the
presentation, the Board offered to write a letter supporting the project.
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4.1.10 P ITKIN C OUNTY HEALTHY RIVERS AND STREAMS
A presentation on the addition of a second turbine and the FERC license amendment process was
made to the Board members of Pitkin Countys Healthy Rivers and Streams. Following the
presentation, individual Pitkin County Commissioners offered to write letters supporting the
project.
4.1.11 A DDITIONAL FUTURE C ONSULTATION AND PERMITTING W ORK
One of the purposes of upgrading the existing powerplant facility and adding the second turbine
is to extend the life of the Ruedi Project for an additional 40-50 years. Because the amendment
currently sought by Aspen does not change the 2033 expiration date of the existing FERC license,
it will be necessary for Aspen to seek an additional license term in the near future. It is anticipated
that adding the second turbine will be initiated five years before the expiration of the existing
FERC license, or by September 8, 2028. However, because Aspen has and will continue to conduct
stakeholder consultation with parties affected by the modifications, it is expected that most
issues associated with extending the license period will have been resolved through the
amendment process currently underway. Similarly, with respect to any required local permitting,
the current consultation process is expected to identify and resolve any outstanding issues
associated with the long term operation of the generating equipment.
Because all work associated with the addition of a second turbine is temporary and takes place
within the existing boundaries of the area defined by the existing USBR lease, any impacts are
minimal and temporary as they are associated with the construction related effects. The 2010
access and right of way agreement with USBR provides for Aspens use of approximately 1.5 acres
of federal land associated with the powerplant and the roadway access, plant operation and
maintenance. It also provides USBR with sole discretion over the water releases utilizing water
rights associated with the federal dam.
It should be noted that the term of the lease agreement with USBR lasts until the date of
expiration of the FERC license. The USBR agreement further specifies that the term of lease will
automatically be extended to match the term of the FERC license. Aspen anticipates continuing
to produce power through an additional FERC license term and will similarly seek an extension of
the lease term with USBR resulting through additional consultation. The nameplate capacity will
remain at 5.0 MW and the hydraulic capacity of the equipment will remain at 300 cfs.
Aspen does not anticipate the need to develop studies on the effect of the proposed
modifications through the FERC license amendment process. This is because the proposed
modification will not change the licensed capacity of the Project and will otherwise remain within
the parameters authorized by the original FERC license. The nameplate capacity will remain at
5.0 MW and the hydraulic capacity of the equipment will remain at 300 cfs.
Moreover, the water quality certification for the existing project is expected to not need changing
as the second tailrace will discharge to the existing stilling basin where the existing tailrace
discharges water from the turbine. The project will maintain the existing 300 cfs hydraulic
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capacity described as part of the FERC license. The project will utilize the existing contractual as
well as physical means of delivery of power to Aspens municipal electric customers. The Project
will support USBRs efforts to utilize releases from Ruedi Reservoir storage to support recovery
of endangered fish species located downstream of the facility on the Colorado River mainstem.
There will be no floodplain impact on the proposed modifications nor an impact to the floodplain
from the proposed modifications.
Aspen does expect input from the CPW regarding measures that it considers necessary to protect
fish in the existing stilling basin area during placement of the proposed new tailrace below the
high water line. The existing Section 401 Water Quality Certification Process and the U.S. Army
Corps of Engineers Section 404 permit requirements will be followed by Aspen.
4.1.12 SCHEDULING IMPLICATIONS A SSOCIATED WITH FERC LICENSING
According to correspondence with FERC and USBR, it is assumed that FERC will be the lead federal
agency under NEPA. Project compliance under NEPA will be determined and conditioned by FERC
through the amendment process. FERC will be responsible for determining the appropriate level
NEPA document and for defining any required action consistent with NEPA and with other federal
regulations.
Aspen believes that FERC action on the License Amendment request, including documentation
of NEPA compliance, will be made by September 2025. The project schedule assumes that the
FERC process is completed by this date. In the event that FERC approval is delayed, project
activities that do not involve ground disturbance can be initiated. The entire work scope that
deals with upgrading existing project facilities is planned to take place within and adjacent to the
existing powerhouse structure and therefore can be started without ground disturbance if the
environmental review process takes longer than expected.
During the one-year timeframe expected for FERCs action on the License Amendment
application, Aspen will continue to work with other local and state review and permitting
agencies. This includes review by Pitkin County under its land use authorities. Aspen will also
work to develop details of the Water Quality Certification from CDPHE, and the Army Corps of
Engineers Section 404 permit required for work associated with installing the new tailrace below
the high-water mark.
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5. OVERLAP OR DUPLICATION OF EFFORT STATEMENT
Applicants should provide a statement that addresses if there is any overlap between the
proposed project and any other active or anticipated proposals or projects in terms of activities,
costs, or commitment of key personnel. If any overlap exists, applicants must provide a description
of the overlap in their application for review.
Applicants should also state if the proposal submitted for consideration under this program does
or does not in any way duplicate any proposal or project that has been or will be submitted for
funding consideration to any other potential funding sourcewhether it be Federal or non-
Federal. If such a circumstance exists, applicants must detail when the other duplicative
proposal(s) were submitted, to whom (Agency name and Financial Assistance Program), and
when funding decisions are expected to be announced. If at any time a proposal is awarded funds
that would be duplicative of the funding requested from Reclamation, applicants must notify the
NOFO point of contact or the Program Coordinator immediately.
This statement addresses the question of any overlap between the Proposed Project and any
other active or anticipated proposals or projects. The City of Aspen certifies that there are no
other active proposals or projects in terms of activities, costs, or commitments of key personnel
that would overlap or duplicate any aspect of the Proposed Project.
During 2023, Aspen submitted a funding proposal for a project similar in scope to the current
Proposed Project described in this grant request to USBR. The 2023 proposal was submitted to
the US Department of Energy (DOE) under section 247 of the Energy Policy Act of 2005 (EPA
2005). However, during the review of the Section 247 funding request, DOE staff determined that
the Ruedi Powerplant project was not eligible for that round of funding because Aspen was
unable to demonstrate at that time that it had submitted a final FERC license amendment
application. However, DOE pointed out that Aspen may be eligible for a future round of funding
in 2025 or later if it can provide the required FERC licensing documentation. Aspen is now able
to do so since the subject FERC license amendment application was filed in September 2024. If
Aspen is not able to obtain a WaterSMART grant from USBR in early 2025, it may elect to re-apply
to DOE under Section 247. The timing and availability of the 2025 round of DOE Section 247 grant
funding is currently unknown and whether Aspen elects to do so is also unknown. If Aspen is
awarded a WaterSMART grant and it commits to acceptance under this program, Aspen will
notify DOE of this decision to clarify its intent to comply with federal requirements affecting
duplicative funding of improvements for the Ruedi Powerplant. If at any time a proposal is
awarded funds that would be duplicative of this grant funding requested from USBR, Aspen will
notify the NOFO point of contact or the Program Coordinator immediately.
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6. CONFLICT OF INTEREST DISCLOSURE STATEMENT
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7. UNIFORM AUDIT REPORTING STATEMENT
Aspen was required to submit a Single Audit report for 2023, the most recently closed fiscal year,
which is available through the Federal Audit Clearinghouse (EIN 84-6000563).
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8. DISCLOSURE OF LOBBYING ACTIVITIES
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9. LETTERS OF SUPPORT
Note: City of Aspen expects Letters of Support from Pitkin County, Eagle County, and Ruedi Water
& Power Authority by year end in support of the Proposed Project.
John Dougherty, Community Office for Resource Efficiency (CORE)
Jenna Weatherred, Holy Cross Energy
Brad Hans, Municipal Energy Agency of Nebraska
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10. OFFICIAL RESOLUTION
The next regularly scheduled Council meeting will be held on December 3, 2024, during which an
Official Resolution 134, Series of 2024, will be presented and signed. This will be provided in
support of this grant application upon completion.
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REGULAR MEETING ASPEN CITY COUNCIL NOVEMBER 12, 2024
Mayor Torre called the meeting to order at 5:00 p.m. with Councilors Doyle, Hauenstein, Rose, and Guth
present.
CITIZEN COMMENTS:
Cecil Hernandez – Mr. Hernandez said he also sent Council an email. He is here speaking about the west
end and said there is an alley that is in a terrible state due to construction. He also has a concern about
police presence regarding traffic leaving in the evening in the west end. There is disregard for the Hallam
pedway so more police presence would be much appreciated.
Mike Maple – Mr. Maple said he is here regarding the demolition and recycling program. He is here to
say that if you are considering modifications to demolition and waste recycling, it should have a
component to revisit demolition allotment. He also spoke about the potential call up for the Crystal
Palace, the historic wall meets his standard for a very historic wall, which was originally painted in 1908.
He believes the intention of the approvals are to maintain this and it should be restored so it can
continue to look as it has since 1908.
Phyllis Bronson – Ms. Bronson said she completely disagrees with Mr. Maple. She was at the HPC
meeting when it was approved. She said the wall is not salvageable. It does a disservice to HPC to not
trust their position. It’s unfortunate that it was on Rosh Hashanah, but that was the only date it would
work. She is not interested in evading reality and if you give Mark Hunt the permission to get the
building done, he will get it done and it will give honor to that whole corner.
Sue Helm – Ms. Helm said she moved to Aspen 50 years ago. She has lived in town and down valley. She
has not seen much consideration for workers surrounding the conversation on Highway 82. Everyone
should get up at 8 am and drive to the airport and then back in town and time yourself on how long it
takes you. And do the reverse on your way out of town at 5:00 p.m. and see how long it takes you and
then multiply x’s 5 days a week, then a month, then a year. We need to be realistic and appreciate that
the workers make this town run.
Francis Stuckins – He has lived in Aspen 38 years. He rides his bicycle. He spoke about the marijuana
consumption lounge again in the Armory.
COUNCILMEMBER COMMENTS:
Councilor Hauenstein said he is involved in a ballot initiative for March regarding the Entrance to Aspen
as a private citizen.
Councilor Doyle spoke about the environment and said there are fires burning on both coasts right now.
Mayor Torre asked everyone to take a deep breath and relax. We are moving toward a solution for the
Entrance to Aspen. We are only talking about 1/3 of a mile from the roundabout to Main Street and it
doesn’t solve commuter issues. National GIS day is coming November 20th and there will be a
celebration with Engineering in Pearl Pass from 12-1 pm. Applications for the Cultural Vibrancy
Fellowship are open now. The Wheeler season announcements are coming. Please attend this Thursday
November 14th to learn about the lineup. They are also now offering the “Wheeler Insider” for all locals
to receive a discount. The Red Brick is also hosting a new exhibition on November 14th.
AGENDA AMENDMENTS:None.
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REGULAR MEETING ASPEN CITY COUNCIL NOVEMBER 12, 2024
CITY MANAGER COMMENTS:
City Manager, Sara Ott, mentioned the citizen who attended the last meeting who was concerned about
her unit at Truscott and said that is all resolved. The mold levels in her unit are acceptable and they did
additional testing on other units. She also mentioned a press release regarding the burglary and arrest
of four suspects. The PD did a great job.
Councilor Doyle mentioned a water main break and how well the city handled it.
BOARD REPORTS:
Councilor Doyle said he had CORE and RWAPA this past week. They spoke about mussel damage at
Reudi. Most of these mussels come from Lake Powell.
Mayor Torre said he has RFTA this Thursday.
CONSENT CALENDAR:
Councilor Guth pulled #133, #134, and #135.
Resolution #133, Series of 2024 – Gould Construction for Lumberyard AH Project Phase 0 – Rob
Schober, Ben Levenson, Chris Everson
Councilor Guth said it would be irresponsible to approve this.
Councilor Hauenstein said Council should take some responsibility for the costs going up when they
asked for a better project.
Councilor Rose said he agrees with everything Councilor Guth said and he will not support.
Mayor Torre said he is prepared to support this.
Mayor Torre motioned to approve Resolution #133 with an amendment to call this Phase 0.1; Councilor
Rose seconded.
Roll call vote: Doyle, yes; Guth, no; Hauenstein, yes; Rose, no; Torre, yes. 3-2, motion carried.
Resolution #134, Series of 2024 – Grassroots Community Network – Jenn Ooton
Councilor Guth asked if this is the status quo. He feels the service could be better.
Ms. Ooton said they could add scope to the broadcast component for HPC and P&Z. This is just
broadcast station management, so it doesn’t really help with hybrid. Staff’s recommendation is to
approve this contract.
Resolution #135, Series of 2024 – Entrance to Aspen EIS Scoping Change Order #4 – Jenn Ooton and
Carly McGowen
Councilor Guth asked what the dollar amount is to get them to a complete EIS.
Ms. Ooton said this piece plus 2 to 3 million.
Ms. Ott said they are hopeful for this amount.
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REGULAR MEETING ASPEN CITY COUNCIL NOVEMBER 12, 2024
Councilor Guth motioned to approve the consent calendar minus Resolution #133; Councilor Doyle
seconded.
Councilor Rose asked that comments not be made during roll call votes. He wants yes or no and nothing
else.
City Attorney, James R. True, said it is not in Roberts Rules of Order. It is addressed in Bob’s Rules of
Order, but Council has not adopted that, so they can make statements like as they wish.
Roll call vote: Doyle, yes; Guth, yes; Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
For the next item, both the City Attorney and the Mayor are recused and exited the room.
NOTICE OF CALL UP – 300-312 E. Hyman Avenue – The old Crystal Palace – Ben Anderson
Mr. Anderson summarized the project and what was approved with HPC. The applicant proposed
deconstruction and new concept for treatment of remaining west wall and mural, a revised architectural
design for the entire building, and minor changes to the roof design, alley façade, and interior
programming. In a special meeting on October 2nd, this project was approved 4-3 by the HPC. The
applicant has stated a willingness to work with staff and HPC’s monitor to continue to refine the
architecture and preservation of the existing materials – notably the mural and remaining historic brick.
Staff wants to move along this project that has been stalled for so long but takes no position on
Council’s decision.
Councilor Hauenstein is in favor of a call up.
Councilor Rose said he can’t support call up tonight because of statements he has already made on this
project.
Councilor Guth agreed with Councilor Rose.
Councilor Hauenstein motioned to call up; Councilor Doyle seconded.
Councilor Doyle said from people he has spoken to in town, he has been asked why we are rewarding
someone for bad behavior when this project has sat for five years now.
Roll call vote: Doyle, yes; Guth, no; Hauenstein, yes; Rose, no. 2-2, no action.
FIRST READING OF ORDINANCES:
Ordinance #16, Series of 2024 – City of Aspen Fall Supplemental Budget – Matt Grau and Pete Strecker
Mr. Grau introduced the item and staff is recommending approval.
Councilor Guth called out the 505 fund and wants discussion on this at second reading.
Councilor Hauenstein motioned to read; Councilor Rose seconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Deputy City Clerk, Mike Sear, read the ordinance.
Councilor Hauenstein motioned to approve; Councilor Doyle seconded. Roll call vote: Doyle, yes; Guth,
yes; Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
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REGULAR MEETING ASPEN CITY COUNCIL NOVEMBER 12, 2024
Ordinance #17, Series of 2024 – City of Aspen 2025 Fee Ordinance – Matt Grau and Pete Strecker
Mr. Grau introduced the item and said proposed fee changes were presented in work sessions.
Councilor Rose motioned to read; Councilor Doyle seconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Mr. Sear read the ordinance.
Mayor Torre has a question regarding parking tickets that are unpaid and what that amount is.
Councilor Hauenstein motioned to approve; Councilor Guth seconded. Roll call vote: Doyle, yes; Guth,
yes; Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Ordinance #20, Series of 2024 – Changes to Title 25 – Utilities Rates – Cole Langford
Mr. Langford introduced the item and is looking for support.
Mayor Torre asked about fraying some of the smallest residential users in the name of conservancy.
Councilor Doyle motioned to read; Councilor Guth seconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Mr. Sear read the ordinance.
Councilor Hauenstein motioned to approve; Councilor Rose seconded. Roll call vote: Doyle, yes; Guth,
yes; Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Ordinance #14, Series of 2024 – Response to HB23-1255 – Haley Hart and Ben Anderson
Ms. Hart introduced the item. The goal of this bill is to increase housing supply across all communities in
Colorado. The proposed response is to remove all mention of residential allotments within Title 26 to
bring the code into compliance.
Councilor Doyle motioned to read; Councilor Guth seconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Councilor Rose motioned to approve; Councilor Guth seconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
PUBLIC HEARINGS:
Resolution #126, Series of 2024 – City of Aspen 2025 Budget – Matt Grau and Pete Strecker
Mr. Grau introduced the item and staff is recommending approval.
Councilor Guth said his issues are over the additional FTE’s that are being added. The position he has a
particular issue with is a Sustainability Analyst. He also cannot support Building IQ, which has cost them
millions of dollars. He also has an issue with Lumberyard Phase 0. Lastly, he doesn’t see the need to
replace the lockers at the ARC.
Desiree Whitehead approached the dais and explained the history of the lockers and the rust and
corrosion.
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REGULAR MEETING ASPEN CITY COUNCIL NOVEMBER 12, 2024
Councilor Guth said this was the easiest budget season he has been through. Our community is growing
and expects a certain level of service, so he is supportive of the FTE’s and is excited for the Sustainability
Analyst for the Building IQ program.
Mayor Torre opened the public hearing.
Javier Valencia – Mr. Valencia said he is here before you as a citizen of Aspen. The stipend proposition is
incredibly important to the city and its employees. This will also help maintain talent at the city by
helping people with rent.
Mayor Torre closed public comment.
Mayor Torre spoke about the importance of Building IQ and the Armory going in the wrong direction. He
still isn’t sure about the top floor use. He will be supporting the budget this evening, however.
Councilor Hauenstein suggested Councilor Guth be the “energy czar” and come up with some ideas
which he thinks will work, and he appreciates his comments. He shares the same concerns about the
Armory also.
Councilor Rose has the same concerns as Councilor Guth. It doesn’t come from evilness.
Councilor Hauenstein motioned to approve; Councilor Doyle seconded. Roll call vote: Doyle; yes; Guth,
no; Hauenstein, yes; Rose, yes; Torre, yes. 4-1, motion carried.
Resolution #127, Series of 2024 – APCHA 2025 Budget – Matt Grau and Pete Strecker
Mr. Grau introduced the item and said staff is recommending approval.
Mayor Torre opened and closed the public hearing.
Councilor Guth said he is appreciative for the work they did on the budget. He isn’t opposed to this, but
there are lessons learned from this.
Councilor Hauenstein and Doyle are supportive.
Mayor Torre motioned to approve; Councilor Rose seconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Ordinance #19, Series of 2024 – Utilities Updates – Water Service Line Requirements – Erin Loughlin
and Tyler Christoff
Ms. Loughlin introduced the item and said the updates are important to maintain compliance with the
state and are recommending approval.
Councilor Guth suggested adding an appeal process and threshold limits.
Councilor Rose agrees with everything Councilor Guth said.
Councilor Hauenstein said public safety is number one. He will support this.
Ms. Ott suggested Assistant City Attorney, Kate Johnson, writing some language on appeals and
continuing to a date certain. Ms. Johnson suggested dealing with them on a case-by-case basis instead
of codifying this.
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REGULAR MEETING ASPEN CITY COUNCIL NOVEMBER 12, 2024
Councilor Doyle motioned to approve; Councilor Hauenstein seconded.
Mayor Torre opened and closed the public hearing.
Councilor Guth’s request is to put this back in staff’s court for threshold triggers.
Councilor Hauenstein’s comfort level is sufficient.
Mayor Torre is comfortable with this other than the misspelled word in the title, “Aspen”.
Roll call vote: Doyle, yes; Guth, no; Hauenstein, yes; Rose, yes; Torre, yes. 4-1, motion carried.
Councilor Guth motioned to adjourn; Councilor Rose seconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
______________________
City Clerk, Nicole Henning
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Page 1 of 2
MEMORANDUM
TO: Mayor and City Council
FROM: Tara Nelson, Sr. Paralegal
THRU: Sara Ott, City Manager | Jenn Ooton, Senior Project Manager
DATE OF MEMO: November 25, 2024
MEETING DATE: December 3, 2024
RE: City of Aspen draft 2025 Regional, State and Federal Policy Agenda
REQUEST OF COUNCIL: This purpose of this item is to allow for discussion and City
Council consideration of the proposed 2025 Regional, State and Federal Policy
Agenda.
PREVIOUS COUNCIL ACTION: Previous City Council have adopted a 2020, 2021,
2022, 2023 and 2024 Policy Agenda.
BACKGROUND: The current 2024 Policy Agenda was adopted via Resolution #175,
Series of 2023 on December 12, 2023. As a guiding document, the Policy Agenda aims
to become the cornerstone for City Council to make informed decisions for which policy
matters are determined by identifying priorities and principles that express policies and
positions on issues that affect the quality of life and governance of our town.Further,
the Policy Agenda is used by City Council members and policy team members to
determine positions on specific pending legislation.
When in session, things happen fast and asks are frequent. This gives Councilors and
staff members direction to advocate our policy position on a bill without having the
specifics of each piece of legislation and warrants the ability to implement policy
decisions. Finally, this guiding document can also be utilized as a general reference for
citizens, community organizations, and our state legislators and congressional
delegation as we continue to build coalitions, strategize with our lobbyist, and to attempt
to influence positions adopted by the intergovernmental organizations we participate
with.
DISCUSSION: The 2025 regular session of the Colorado General Assembly is
scheduled to convene on January 8, 2025. Substantive policy changes have not been
proposed. Rather, the following is a high-level summation of the significant changes:
Affordable Housing –additional bullet points to address: local needs and the
AMIs of Rural Resort Communities; reformation of the state's construction defect
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Page 2 of 2
law so as to increase the supply of diverse housing options, including
condominiums
Content – general edits: all 2024 references to 2025; changing DEIA to DEIB;
RTD to RFTA; addition of West Mountain Regional Housing Coalition; and
defining the Aspen Idea
Delegation –updated to reflect November 2024 election outcomes
Early Childhood –change to “when parents who wish to work are unable to
fully engage, it negatively impacts us all”
Environmental & Climate Action Resource Conservation – City lobbying
efforts have and are expected to continue to contribute to the City’s
environmental sustainability goals. Environmental sustainability policy agenda
content includes the addition of: “attention to supply chains”; maintaining a
“100% renewable energy grid for Aspen Electric”; and energy reduction and
“energy electrification” in buildings
Fiscal Responsibility – clearer definition of non-mitigated affordable housing;
change reference of Gallagher Amendment to “statewide legislation limiting
property tax growth”
Local Control –additional language regarding impacts of unfunded mandates
Mental Behavioral Health Services – additional bullet point and content added
under Health, Housing & Human Services to address a more robust concern
and/or priority
Public Health & Safety –additional language of “safe food” to opening
sentence
Transportation -additional bullet point “modernized airport including terminal
redevelopment and runway improvements”
RECOMMENDED ACTION:Discuss, identify and move forward with changes and
proposed revisions with the ultimate goal of adopting a 2025 Policy Agenda as a guiding
document.
ALTERNATIVES:Choose not to adopt a formal guiding 2025 Policy Agenda
CITY MANAGER COMMENTS:
ATTACHMENTS:Attachment A:Draft 2025 City of Aspen Regional, State and Federal
Policy Agenda
151
RESOLUTION #138
(Series of 2024)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
ADOPTING A 2025 REGIONAL, STATE AND FEDERAL POLICY AGENDA
WHEREAS there has been submitted to the City Council a 2025 Regional, State and
Federal Policy Agenda, a true and accurate copy of which is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
ASPEN, COLORADO:
That the City Council of the City of Aspen hereby approves that 2025 Policy Agenda, a
copy of which is annexed hereto and incorporated herein and does hereby authorize the Mayor or
City Manager to approve said policy agenda on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the
_____ day of _________________, 2024.
__________________________
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 on the day hereinabove stated.
__________________________
Nicole Henning, City Clerk
152
Adopted and Approved at the December ___, 2024
regular City Council meeting Resolution #138, Series of 2024
2025
REGIONAL, STATE AND
FEDERAL POLICY AGENDA
153
CITY OF ASPEN - 2025 POLICY AGENDA
2Torre, Mayor
Torre@aspen.gov
(970) 948-2023
Bill Guth
Bill.Guth@aspen.gov
(970) 300-2120
Ward Hauenstein
Ward.Hauenstein@aspen.gov
(970) 948-3858
Sam Rose
Sam.Rose@aspen.gov
(802) 752-7026
John Doyle, Mayor Pro-Tem
John.Doyle@aspen.gov
(970) 948-6251
CITY COUNCIL
Jenn Ooton
Jenn.Ooton@aspen.gov
(970) 429-2756
SR. PROJECT MANAGER
Sara G. Ott
Sara.Ott@aspen.gov
(970) 920-5083
CITY MANAGER
Tara Nelson
Tara.Nelson@aspen.gov
(970) 920-5059
SR. PARALEGAL
Mailing Address: 427 Rio Grande, Aspen, CO 81611 Website: https://aspen.gov/1276/Policy-Agenda
154
CITY OF ASPEN - 2025 POLICY AGENDA
3CONTENT
PURPOSE OF THE POLICY AGENDA 4
PRINCIPLES (*not in any particular order of preference)5
DELIVER QUALITY ESSENTIAL SERVICES 6
ENVIRONMENTAL SUSTAINABILITY 6
LANDS & NATURAL RESOURCES 6
HEALTH, HOUSING & HUMAN SERVICES 7
SERVICE INTEGRATION & COLLABORATION 8
LOCAL CONTROL 8
FISCAL RESPONSIBILITY 8
DELIVER ASPEN AREA COMMUNITY PLAN THEMES 9
DIVERSITY, EQUITY, INCLUSION & BELONGING 10
ELECTIONS 10
PRIORITIES (*not in any particular order of preference)11
AFFORDABLE HOUSING 12
CLIMATE ACTION AND RESOURCE CONSERVATION 13
PUBLIC LANDS – NATURAL RESOURCES, WILDLIFE, PARKS, RECREATION 14
PUBLIC HEALTH & SAFETY 15
TELECOMMUNICATIONS 16
WATER AVAILABILITY & CONSERVATION 16
RIVER HEALTH 17
EARLY CHILDHOOD 17
RENEWABLE ENERGY 18
REGIONALISM 18
TRANSPORTATION 19
PROCESS 20
WHO'S WHO - OUR LEGISLATORS 20-21
DISTRICT MAPS AND DISTRICT NUMBERS 22-23
155
CITY OF ASPEN - 2025 POLICY AGENDA
4The purpose of the City of Aspen’s 2025 Regional, State and Federal Policy Agenda (hereinafter “Policy Agenda”) is to inform city advocacy
on policy decisions that have the potential to significantly impact 81611 and surrounding jurisdictional boundaries. This includes legislative
decisions that may be made by the Colorado General Assembly or the U.S. Congress. It also includes various non-legislative decisions
that can be opined at the federal, state and regional levels, including but not limited to those before Colorado agencies (i.e., Air Quality
Control Commission, Public Utilities Commission, Department of Transportation, Department of Regulatory Affairs), federal agencies
(i.e., Environmental Protection Agency, Department of Transportation, the Federal Communications Commission), regional governments
(i.e., Roaring Fork Transportation Authority) and intergovernmental coalitions (i.e., Colorado Municipal League, Mountain Pact, Colorado
Communities for Climate Action, Climate Mayors, Northwest Colorado Council of Governments, Colorado Association of Ski Towns, Water
Quality/Quantity Committee, Elected Officials Transportation Committee, West Mountain Regional Housing Coalition)
The City offers the Policy Agenda as a guideline to regional, state and federal policy leaders for reference when considering decisions
impacting the City of Aspen. This agenda was developed in advance of the 2025 Colorado General Assembly. With the coordination of
the policy team staff and the City Manager, it will be used by individual City Council members and city staff to inform city positions taken
on specific bills once these legislative sessions begin. At that point, Council may consider adopting amendments to the Policy Agenda to
address specific bills that have been proposed.
Council may revisit the Policy Agenda at any point. It may do so as a body or with staff. City policy team members may convene on an ad hoc
basis as necessary when one or more of the following circumstances exist
1. There is an immediate need for council members to participate with staff in developing a strategy to advance or defeat a proposed
policy which is clearly addressed by the City’s Policy Agenda or other council-approved policy documents, or
2. A decision is expected to be made on regional, state or federal policy that affects a matter which council has previously provided
general direction on and that could significantly impact the city, but which council did not provide sufficient specific direction on (either
through its Policy Agenda or other approved policy documents) and with timing that will not allow for council direction to be obtained.
In these limited situations, the City Manager and Senior Paralegal may discuss such policy proposals so that the city can advocate
accordingly. Council is to be informed whenever such direction has been provided and may choose to subsequently revisit such
direction.
3. In taking a position on bills, the City of Aspen interprets and applies the various policies that are included herein. On any specific
matter City Council may choose to take a position to support, oppose unless amended , or oppose specific legislation relative to issues
that affect the community's quality of life and governance.
Modifications to this Policy Agenda require consistency, when applicable, with the criteria listed below:
1. Uniformity with current city council goals, community expectations and Aspen Area Community Plan;
2. Impact on our citizens general health, safety & welfare;
3. Expected relevance in the upcoming or present state and federal legislative sessions;
4. Uniqueness of issue or impact to the City of Aspen and/or to our regional partners;
5. Viability or likelihood of achieving goal weighed with importance of beginning to address/highlight critical issues;
6. Opportunity for providing funding for City of Aspen or its community partners; and,
7. Availability of metrics of success that would allow the position to be deleted from future agendas if achieved
This policy agenda recognizes circumstances arise wherein a City Council member may be a lone representative of an organization and must
address and/or vote on a policy position on the spot. Departures from these criteria are made in unique circumstances as determined by
council, such as when adoption of a city position is important to support its regional partners, even while the policy in question is otherwise
of limited consequences to the city. Further, departures may broaden our approach for advocacy with policies that align with our values and
intention for our state and nation even when they are benign towards Aspen or may disadvantage Aspen for a larger good or shared goal.
This policy agenda further recognizes that Aspen may look at how affiliations and like– minded organizations may take position on certain
pieces of legislation. Aspen will strive to take position with the recognition that it is unique, and although guidance from interest groups and
Colorado Municipal League may be sought, there are times where our position may not be consistent or aligned.
In 2023, the City of Aspen hired Bowditch & Cassell Public Affairs, a full-serve government relations firm located in Denver, that provides
support for the organization in advocacy matters related to the Colorado General Assembly.
The City welcomes the opportunity to discuss the Policy Agenda. Please direct any questions to Jenn Ooton and Tara Nelson.
PURPOSE OF THE
POLICY AGENDA
156
PRINCIPLES
AT A
GLANCE
CITY OF ASPEN - 2025 POLICY AGENDA
Deliver Quality
Essential Services
Environmental
Sustainability
Lands & Natural
Resources
Health, Housing
& Human Services
Service Integration
& Collaboration
Local
Control
Fiscal
Responsibility
Deliver Aspen Area
Community Plan
Themes
Diversity, Equity,
Inclusion &
Accessibility
Elections 5157
CITY OF ASPEN - 2025 POLICY AGENDA
6The City of Aspen has established a dynamic
natural resource program that encompasses both
the urban forest and the surrounding natural
resources. With over 1,100 acres of open space
being 'locally secured' and protected by taxpayer
funded acquisitions situated within a county
comprised of thousands of acres of Federal BLM
and Forest Service lands, we are committed to
preserving and protecting these vital resources
as well as enhancing our natural surroundings. We
work to preserve open spaces for recreational
use, wildlife habitat, scenic view planes and
sustainment of our agricultural heritage; protect
water sources and ensure a sustainable water
supply; protect air quality and water quality
to reduce impacts to residents; and support
programs and funding for equitable access to
public space and services.
The City urges Congress and the General
Assembly to expand resources for those
essential services that serve the city’s
most vulnerable, including childcare
assistance, access to affordable health
care, and addiction services, and protect
the community and the environment. As
identified in the Aspen Area Community
Plan, the City of Aspen’s intent is to
ensure a broad visitor base over the
long-term, bolstering the sustainability
of our visitor-based industry. In addition,
this plan calls for more aggressive
measures to ensure that the commercial
sector provides essential products and
services, and to ensure balance between
a local-serving and visitor-oriented
commercial sector. We foster policy to
facilitate the sustainability of essential
businesses that provide basic community
needs. It is apparent that gaps still exist
in the provision of essential services
including adequate housing and health
care options for all community residents.
We value a collaborative approach to
finding creative, sustainable solutions. As
a principle, we are guided by professional,
legal and community standards that
provide opportunities for people of all
ages and abilities to achieve a higher
quality of life through: self-reliance, public
safety, health and well- being, education
and lifelong learning.
The City of Aspen maintains its commitment to
promote environmental stewardship and lead
climate action efforts throughout the Roaring
Fork Valley and beyond. We will investigate and
support efforts and policies that offset and reduce
greenhouse gas (GHG) emissions in meaningful
and measurable ways as well as those that reduce
waste through prevention, diversion and attention
to supply chains. We will continue to advance
policy that supports our ability to protect our
unique local environment, conserve resources,
improve resiliency, and deliver a sustainable future
for all.
Deliver Quality
Essential Services
Land & Natural Resources
Environmental
Sustainability
158
CITY OF ASPEN - 2025 POLICY AGENDA
7Aspen is dedicated to supporting and sustaining healthy communities that strengthen individuals and
families while providing reasonable health and human services for anyone who calls the Aspen area home.
We will strengthen the quality of life and well-being for all people in our community by practices that
provide and promote opportunities in housing through the lens of policy that expands access and aids in
inclusion and equity regionally and statewide. We strive to advance the framework for jobs and access to
services, such as education, public safety and health through all phases of life. We value a collaborative
approach to finding creative, sustainable solutions and are guided by professional, legal and community
standards in providing opportunities for people of all ages and abilities to achieve a higher quality of life
through:
• Self Reliance: We must work together to help each person in our community meet basic needs and
remain self-sufficient to the greatest extent possible.
• Public Safety: We must continue to ensure that our safety services (police, sheriff, fire, child and adult
protection, Mountain Rescue and emergency response, etc.) are efficient, effective, accessible and
coordinated.
• Health and Well-Being: We must encourage the highest level of personal health for everyone in our
community through programs that encourage healthy lifestyles, reduce risks and create access to
quality health care regardless of age, income or ability. Local and regional public health agencies, local
boards of health, providers and non-profits must work together to ensure community-wide access to a
comprehensive set of health services, including women’s reproductive care.
• Education and Lifelong Learning: We must work together to ensure educational opportunities are
available to all members of our community.
• Mental/Behavioral Health Services: We must continue to work with regional partners (Aspen Hope
Center, A Way Out, Aspen Family Connections, Community Health Services, PACT, Mind Springs,
HeadQuarters, Youthzone, mental health providers/practitioners, and community health workers, etc.) to
collaborate and implement programs needed for residents to expand mental/behavioral health services
and reduce barriers to care, including ones that would reduce stigma surrounding mental/behavioral
health issues and those that ensure treatment and recovery options
Health, Housing & Human Services
159
CITY OF ASPEN - 2025 POLICY AGENDA
8As a home rule municipality, the City of Aspen
believes the authority to address issues that
pertain to the city must reside within. Local
governments are best suited to identify
solutions to local issues particularly regarding
the services provided and land use decisions
we make. Local authority also includes the
flexibility to determine use of funding locally
and precludes unfunded mandates from the
state or federal government.
Unfunded mandates from the state legislature
are a double-whammy for local communities
in that they do not allow the community to
decide the best course of action at the local
level and come with the burden of costs that
are unanticipated.
City of Aspen budgeting reflects a priority
on high-quality government services through
seven strategic focus areas being:
• Community engagement
• Fiscal health & economic vitality
• Smart, customer-focused government
• Environmental protection
• Safe, lived-in community of choice
• Development of publicly funded
housing, including broader support and
involvement in the creation of affordable
housing developed outside of the City's
mitigation requirements
• City of Aspen believes it is critical to
the health of our economy to address
the state revenue structure that
restricts the state’s ability to respond to
changing economic conditions, including
the Taxpayer Bill of Rights (TABOR),
Amendment 23, and statewide legislation
limiting property tax growth.
Fiscal Responsibility
City of Aspen aims to ensure effective use
of taxpayer funds and successful outcomes
through efficient service delivery and integration
of public programs and services. To increase
efficiency and effectiveness, City of Aspen
engages in and strongly supports collaborative
efforts within city departments and with
partner agencies and organizations in the local
community, regionally, and state-wide.
Service Integration
& Collaboration
Local Control
160
CITY OF ASPEN - 2025 POLICY AGENDA
9We are committed to revitalizing and sustaining the underpinning of our thriving community, the
Aspen Idea1. Our vision, map and plan of action for achieving goals resides within our Aspen Area
Community Plan (AACP). We strive to encourage collaboration among non-profit organizations,
local government, local businesses and individuals while fostering greater inclusivity and
participation in cultural events amongst the spectrum of community residents and visitors while
supporting activities and infrastructure, both social and physical, that enable and sustain the
Aspen Idea.
Implementing the themes of the 2012 AACP requires collaboration and cooperation among public
sector agencies, businesses, private non-profits, local institutions and the general public.
We are committed to:
• Revitalizing and sustaining the Aspen Idea
• Achieving sustainable land use practices that support a healthy year-round community and a
thriving, vibrant visitor-based economy
• West of Castle Creek Corridor area should provide a transition from rural expanses of
Pitkin County to urbanized atmosphere of downtown Aspen
• Providing an efficient, multi-modal and integrated transportation system that reduces
congestion and air pollution
• A strong and diverse year-round community and a viable and healthy local workforce are
fundamental cornerstones for the sustainability of the Aspen area community
• Aspen will be a local, regional, state and national leader in all aspects of environmental
stewardship
• Preserving our historic resources differentiates us a community and contributes to our
long-term cultural awareness and sustainability as a community
• Strengthen the quality of life and well-being for all people in our community by providing or
promoting opportunities in housing, jobs and access to services, such as education, public
safety and health through all phases of life
• Supporting programs and policies that promote affordable housing locally, regionally and at
the state level
1 Based on the concept created by Walter and Elizabeth Paepcke, the Aspen Idea is a philosophy that defines the culture of Aspen,
Colorado, as a place to renew the mind, body, and spirit.
Deliver Aspen Area
Community Plan Themes
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10The City of Aspen is committed to
creating an inclusive and equitable
community. By “inclusive”, we mean that
we strive to give all people a place at the
table as we engage in the processes to
consider policies and make decisions
toward our shared future. We will work
to ensure that everyone, regardless of
identity, feels welcome and is able to
contribute to, and enjoy, the vibrancy
of the community. By “equitable”, we
mean that the outcomes of our inclusive
processes aim to create conditions
where all people, especially historically
marginalized groups, have full and equal
access to the opportunities and resources
necessary to thrive in the community. We
will identify and remove any structural
inequities in our city policies, land
use regulations, city charter, or other
governing documents. In this commitment,
we are affirming that our individual
and collective diversity in gender, race,
ethnicity, religion, national origin, age,
sexual orientation, gender identify,
citizenship status, education, disability,
socio-economic status, or any other
identity is a valuable asset to Aspen’s
present and future. Accordingly, we will
support policies and efforts that have the
potential to increase, promote, achieve
and foster inclusivity and equity in Aspen
and the greater Roaring Fork Valley
region.
Diversity, Equity,
Inclusion & Belonging
The City of Aspen conducts municipal
elections biennially on the first Tuesday of
March and special elections as required
by the citizen (or Council) initiative
process. The City of Aspen has full faith
and trust in the elections of Colorado
and is committed to conducting a clear,
legal and trustworthy city and county
election. However, the validity of our
vote can be deteriorated by other states
when it comes to final selection of the
Senate and the Congress. Steps need to
be taken to ensure quality civic dialogue.
The City supports efforts at a state,
regional and national level that strengthen
our democracy, including but not limited
to, increasing transparency, reducing or
eliminating corruption, campaign finance
reform, reducing or eliminating money in
politics, gerrymandering and redistricting,
open primaries, voter enfranchisement,
process improvements such as mail-in
ballots, steps that encourage voter
participation and increase voter choice,
and additional mechanisms to protect
election integrity.
Elections
162
PRIORITIES
AT A
GLANCE
Affordable
Housing
Climate Action
and Resource
Conservation
Public Lands -
Natural Resources,
Wildlife, Parks,
Recreation
Public Health
& Safety
Telecommunications Water Availability
& Conservation
River Health Early Childhood
Renewable Energy Regionalism Transportation 11CITY OF ASPEN - 2025 POLICY AGENDA
The following are the City of Aspen’s priorities for the 2025 legislative session, NOT including references to legislation
that will be introduced in the General Assembly. City staff will closely monitor active legislation introduced in these
areas as well as request regional support for bills that pertain and have interest to us.
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12This policy area includes deed restricted and free market owner-occupied and rental housing
units which house Aspen and Pitkin County residents whose annual income is up to 240% of
AMI. Affordable housing is essential to the economic and social health and sustainability of
the City of Aspen. The City of Aspen is focused on the provision of quality affordable housing
to ensure the continued viability of the community. As such, the City advocates for State and
Federal policies and regulations which support its affordable housing program, including:
• State laws respecting home-rule authority and permitting municipal government to raise
revenue and budget for the development of affordable housing to meet local demand;
• State laws which enable local government to acquire or dedicate land for the development
of affordable housing;
• Increased federal and state funding for affordable housing tax credits, vouchers, subsidies
and other financial tools to support the development of affordable housing;
• Federal and state funding assistance for housing authorities to support the development
and management of affordable housing.
• Support for local government's ability to regulate, manage or generate alternative sources
of funding for affordable housing, including public-private partnerships
• Support policy, programs, and funding that serve local needs and the AMIs of Rural Resort
Communities
• Reformation of the state's construction defect law so as to increase the supply of diverse
housing options, including condominiums
Affordable Housing
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13Climate change is leaving an indelible mark on Colorado and threatens the quality of life of residents.
The City of Aspen’s Climate Action Office identifies our city as one that is dependent on a stable climate
and the maintenance of natural resources for a thriving economy. Aspen is committed to reducing
GHG emissions through programming and policy in the following categories: low and zero emission
transportation, waste reduction, maintaining a 100% renewable energy grid for Aspen Electric, energy
reduction and electrification in buildings, sustainability education, and advocating for state and federal
regulations that support GHG emissions reductions. We support climate change preparedness, adaptation
and resiliency efforts, the Colorado GHG Pollution Reduction Roadmap, as well as more aggressive
goals and regulations that would require the state and country as a whole to reduce GHG Emissions.
Aspen’s Sustainability Action Plan (ASAP) reflects the city’s new science-based targets for greenhouse
gas emissions reductions of 63% by 2030 and zero carbon by 2050, along with the necessary actions
to achieve these goals and realize a sustainable future for our community. Updated most recently in
February 2024, the ASAP refocuses our commitment to Aspen’s future. The City works in collaboration
with Colorado Communities for Climate Action (CC4CA) to address the legislation that the City expects
to focus the bulk of its resources and political capital on regarding climate action. CC4CA is a coalition of
local governments across the state that work to strengthen state and federal climate policy. The Inflation
Reduction Act of 2022 (IRA) and Infrastructure Investment and Jobs Act of 2021 (IIJA) mark historic
federal investments in clean energy and infrastructure. The City is working internally and with external
partners to capture this funding for eligible projects.
The City also engages with other coalitions, such as The Mountain Pact and Climate Mayors, to advance
climate change mitigation and resiliency efforts at the regional and federal levels. Aspen is committed to
resource conservation through building efficiency, renewable energy sources, zero emissions vehicles,
and waste reduction. Per the AACP, Aspen supports policies which will promote resource conversation
by these methods. The City of Aspen understands that greenhouse gas emissions, including methane and
carbon dioxide, are produced from numerous sources, including those sources and activities not directly
controlled by the City of Aspen. One such source of warming causing emissions is abandoned coal mines
located across the west. The City of Aspen supports the activities necessary to reduce, capture and
eliminate the vast amounts of methane gas that is emitted from regional coal mines and the partners and
organizations leading and contributing to that work.
Furthermore, we support the preservation and expansion of local governments’ ability to engage in
climate action efforts that include local and multi-city commitments. These partnerships and affiliations
leverage successes at the state, national, and international level and create further value for our
community and others.
Climate Action and
Resource Conservation
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14Pitkin County is 88% public land. Those lands provide essential resources, landscapes, and recreation
opportunities which support the health and sustainability of our community, economy, and ecosystems.
The proper management of public lands mitigates community impacts from natural disasters, ensures
these lands support ecological health and biodiversity, provides diverse recreation opportunities, and
supports commercial and conservation uses. Given Aspen’s proximity to public lands, dependence on
those lands for community sustainability, and prioritization of climate and environmental action, the City
advocates for policies and regulations which deliver the following:
• Proactive forest management and wildfire mitigation which reduces threats from wildfire at the
Wildland-Urban Interface and provides resources for wildland fire mitigation and management;
• Federal lands management rooted in best practices and which balances recreation development and
commercial uses with conservation ensuring the long-term health and biodiversity of public lands;
• Federal lands policy and regulatory processes focused on public engagement and input,
collaboration, responsiveness, and adaptation to local needs and conditions;
• Recreation management focused on habitat preservation, user experience, diversity of travel and
access opportunities, and the sustainable management of existing resources.
• Extremely limited support for transfer of public lands to the states in cases where public access and
public benefit remain unchanged
• Adequate funding for Colorado Avalanche Information Center and overall adequate funding for
Forest Service and emergency agencies enacting and removing fire fuels, load mitigation, campsite
restoration and maintenance
Public Lands –
Natural Resources, Wildlife, Parks, Recreation
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15A core function of municipal government is to provide these quality of life factors: Community policing,
safe drinking water, safe, clear air and a healthy environment, safe food, development regulations, safe
transportation, and parks, recreation and open space programs. These essential elements embody a
healthy community. The City of Aspen is dedicated to providing these community services. The City is
focused on advocating for policies and regulations which assist in providing the services essential to a
healthy, safe community, including:
• Federal and state policies supporting community policing, intervention, prevention, public health, and
rehabilitation programs which support local control of public safety and health outcomes;
• Financial and policy support for inter-governmental coordination in the provision of public safety and
health services and programs;
• Local control over land use and development regulations which guarantee Aspen’s ability to implement
planning, zoning, and design controls on the built environment, and assess impact fees and other
exactions on development activities to deliver community goods and off-set the impacts from
development;
• Regulatory and financial support for the conservation of lands and provision of recreation services to
support public and environmental health;
• As members of the Western slope and residents of rural Colorado, a less populated side of Colorado,
we would like to see equitable distribution of resources needed to protect our community health and
safety
• In the event of an epidemic, pandemic, crisis or future public health concern, ensure medical services
are equally accessible to everyone.
Public Health & Safety
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16Providing a safe, legal and reliable water
supply to the City’s water customers
is necessary for supporting a vibrant
community. Water, especially in the West, is
a precious resource that must be diligently
protected. The City promotes the efficient
management of water through:
• Long-range planning efforts to identify
future water needs and projects;
• Legal strategies that protect the city’s
water rights;
• Conservation programs that promote
efficient water use;
• Coordinated responses for drought
management;
• Participation in State-wide efforts to
manage water resources to the benefit of
Colorado communities, especially on the
West Slope;
• Recognition of the importance of water
storage in providing a reliable water
supply. With less than a day’s worth of
storage, Aspen is especially vulnerable to
disruptions in the water supply.
Water Availability
& Conservation
Like transportation, water, sewer, and
energy services, telecommunications
infrastructure is an essential public utility.
The 21st Century economy relies on
fast, reliable, accessible, and affordable
telecommunications services. As a rural
community, Aspen and its surrounding
area are underserved by private
telecommunications providers, particularly
widely accessible high-speed broadband
access. Aspen is focused on ensuring
that telecommunications infrastructure is
responsibility deployed and managed to
mitigate impacts to community aesthetics,
public health, and public property
while providing accessible, reliable
telecommunications utility services.
Aspen supports policies and regulations
which:
• Support the development of
municipally owned or managed
telecommunications utilities
infrastructure and franchises, including
cellular and broadband services;
• Oppose federal or state preemption
of municipal control over access
to and regulation of infrastructure
and development within public
rights-of-way and the preemption of
imposition of design controls over
utilities infrastructure;
• Ensure equitable and affordable
access to high-speed, quality mobile
and broadband telecommunications
services
Telecommunications
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CITY OF ASPEN - 2025 POLICY AGENDA
17Early childhood education is a pressing issue
that has the potential of providing infrastructure
for or holding back a thriving economy. When
parents who wish to work are unable to fully
engage, it negatively impacts us all. Childcare
is difficult to find, especially infant care, forcing
many families to use less desirable care, work
less, delay returning to work, or leave the
community. Childcare is expensive, often costing
a family more than housing. The rising cost of
childcare has dampened women’s employment
by 13 % for those with children under age 5.
Childcare is a 3-legged stool: a functioning
system that supports families and children
requires investing in affordability, accessibility
and high quality. If a childcare proposal focuses
only on bolstering one leg, the others will grow
weaker under the pressure. More childcare spots
won’t necessarily mean parents can afford them.
More money for parents won’t help address
quality or access.
The City of Aspen advocates for:
• An early childhood education comprehensive
plan that addresses high quality, access, and
affordability.
• Paid Family Leave that benefits children,
families, and the community
• Labor and workforce recognition and support
for the needs of families with young children
• Workforce development in early care and
education field, including scholarships,
training programs, and assessment and
coaching support
Early Childhood
Like all of our natural environment, our local
rivers are some of the community’s greatest
assets and the reason many people choose
to visit or make the Aspen area their home.
Our rivers provide for a high quality life;
support recreational, real estate, and tourism
economies; and provide our downstream
neighbors with drinking water. The health of
these rivers remains of highest importance to
our citizens and is identified in several guiding
documents for the City, including the Aspen
Area Community Plan and the Ecological Bill
of Rights. As such, the City is committed to
making choices and implementing programs
that protect, preserve, and promote river
health now and into the future, and is focused
on advocating for policies and regulation which
deliver the following:
• Watershed and water resources protection
and/or enhancement;
• Local control over water resources projects
and regulations that have the potential to
impact the quality or quantity of water in
the Roaring Fork watershed;
• Local control over land use and
development regulations which guarantee
Aspen’s ability to implement planning,
zoning, and design controls on the built
environment, and assess impact fees and
other exactions on development activities
to deliver environmental protection and
off-set the impacts from development
River Health
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CITY OF ASPEN - 2025 POLICY AGENDA
18Aspen has long-supported efforts to minimize reliance on fossil fuels. In 2015 the City became the 3rd
City in the nation to provide 100% renewable energy to its customers. Aspen continues to support
efforts by other communities to reduce reliance on fossil fuels. Aspen will continue to develop and invest
in energy resiliency. New and creative options such as storage, local renewable energy generation, and
other emerging technologies should be explored to address community needs, enhance energy choices,
and respond to emergency preparedness on our local scale.
Renewable Energy
By exploring innovative and collaborative ways to close the gaps and meet demands, the City government
plays an important leadership role in the ethic of community. Regional and multi-jurisdictional cooperation and
collaboration enhances our quality of life. The City of Aspen engages in and strongly supports collaborative
efforts within city departments and with partner agencies and organizations in the local community, regionally,
and state-wide. The City of Aspen supports statewide legislation that would encourage, but is not limited to:
• Cooperation amongst community including affordable housing goals
• Proposals that recognize the range of impacts and advocate for reform around short term
rentals in our community
• Health and well being
• Trails & Open space systems and acquisitions
• Adequate funding for Colorado transportation needs
• Healthy rivers and streams
• Early childhood education funding
• Fiscal funding for K-12 education
• Emergency Plans / Public Safety / Emergency Response
• Public Lands / Forest Management / Wildfire Mitigation
• Broadband
• Legislation that affects and relates to elections: ensuring enfranchisement, campaign finance reform,
increased civic and voter participation, and that elections remain fair, open, accessible and honestly run for
all registered voters
• Improvement of government transparency and accountability
• Climate Action
Regionalism
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CITY OF ASPEN - 2025 POLICY AGENDA
19The City of Aspen is a leader in Transportation Demand Management, actively supporting programs,
services and infrastructure that promote the use of transit, cycling, walking and shared mobility over
single occupant vehicle travel. We support commuter fringe benefits that encourage transit, bicycle,
walk and other non-SOV transportation modes and oppose fringe benefits for parking and others that
encourage SOV travel for commute trips. As new transportation technologies and services emerge and
evolve (e.g.: dockless mobility, autonomous vehicles, etc.) the City of Aspen supports efforts to maintain
the authority for local regulation of these services. The City supports efforts aimed at regulating the
shared mobility industry to ensure safety, equity, data sharing, customer privacy and fair treatment of
employees. We support new transportation funding for:
• Projects that maintain existing infrastructure and that are multimodal in design, legislation that
encourages “complete streets” that accommodate people using all modes of travel
• Policies that support increased transportation funding for both ongoing and new transit planning
efforts, transit operations, clean transit vehicles and safe transit infrastructure that reduce the reliance
on single occupant vehicle travel
• Innovative multi-modal projects including bicycle, pedestrian and first/ last mile services
• For demonstration or “sandbox” projects that provide the opportunity to test emerging services and
technologies
• Resort communities for recognizing that the needs of a commuting public and the importance of a
tourism economy are directly tied to transportation improvements and reduction in traffic congestion
• Encouragement of a balanced state transportation policy that addresses the need to maintain and
expand roadway, bicycle, pedestrian, transit, carpool/ vanpool and demand management options to
improve Colorado’s transportation system including preservation of the constitutional requirement
that highway user revenues be used for the construction, maintenance and supervision of the public
highways and bridges of the state
• Legislation that enables and encourages the cleanest, most efficient possible technology for both
private vehicles as well as public transit vehicles while preserving local control over regulation and
local implementation
• Transportation / infrastructure programs that support resilient communities and emergency access
• Electric vehicle charging infrastructure
• Aspen’s support and emphasis on grade separated multi-use trail projects that support alternative
transportation and provides bicyclists safer, non-motorized commuter trail platforms
• Modernized airport including terminal redevelopment and runway improvements
Transportation
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CITY OF ASPEN - 2025 POLICY AGENDA
20LEGISLATIVE DELEGATION
U.S. CONGRESSWOMAN
JEFF HURD -
3RD DISTRICT
Phone: (970) 208-0460 Grand Junction office
PROCESS
To be most effective with our voice it is vital to establish a line of communication with our
affiliated district representatives. This direct method will help us be most successful with our
pertinent goals and where we can provide the most assistance.
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CITY OF ASPEN - 2025 POLICY AGENDA
21U.S. SENATOR
MICHAEL F. BENNET
Washington , DC 20510
www.bennet.senate.gov
Phone: (970) 243-3936 Grand Junction office
Hilary Henry, Regional Rep (970) 782-8020
Hilary_Henry@bennet.senate.gov
U.S. SENATOR
JOHN HICKENLOOPER
Washington , DC 20510
www.hickenlooper.senate.gov
Janeth N. Stancle, Regional Rep
Phone: (970) 342-3150
Janeth_Stancle@hickenlooper.senate.gov
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CITY OF ASPEN - 2025 POLICY AGENDA
22REP. ELIZABETH VELASCO
STATE HOUSE DISTRICT 57
Email: elizabeth.velasco.house@coleg.gov
Phone: (303) 866-2949
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CITY OF ASPEN - 2025 POLICY AGENDA
23SENATOR MARC CATLIN
STATE SENATE DISTRICT 5
Phone: (970) 209-3436
175
www.aspen.gov
427 Rio Grande Place
Aspen, CO 81611
176
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Haley Hart, Long-Range Planner
THROUGH: Ben Anderson, Community Development Director
MEMO DATE: November 25, 2024
MEETING DATE: December 3, 2024
RE: Resolution #140, Series of 2024
Provision of required affordable housing via a fee-in-lieu payment
REQUEST OF THE PLANNING AND ZONING COMMISSION:
Council is asked to review, consider, and approve the ability of specific development
projects to pay fee-in-lieu (FIL) as the means to meet their affordable housing mitigation
requirements. There are two (2) requests in total for Q3 and this action is a response to
a current shortage of available Affordable Housing Certificates in the market.
SUMMARY AND BACKGROUND:
The City’s Growth Management Quota System regulations require affordable housing
mitigation of free-market residential development. Development that generates less than
0.1 Full Time Equivalent (FTE) may mitigate via fee-in-lieu by right. Projects that generate
more than 0.1 FTEs may mitigate via Affordable Housing Certificates by right. A full time
equivalent (FTE) is defined in Section 26.470.020, Terminology – Growth Management
Quota System, as “a unit of measurement standardizing the workloads of employ ees. In
this Chapter, FTEs refer to the number of employees generated or housed by
development”.
This code was written to support the creation of affordable housing by private developers.
The Land Use Code offers a process for paying fee-in-lieu to mitigate over 0.1 FTEs. It
requires a request and approval by Council, following a recommendation from P&Z.
Following is the code language that describes this process:
26.470.110.C. Provision of required affordable housing via a fee-in-lieu payment.
The provision of affordable housing in excess of 0.10 Full-Time Equivalents (FTEs)
via a fee-in-lieu payment, upon a recommendation from the Planning and Zoning
Commission shall be approved, approved with conditions or denied by the City Council
based on the following criteria:
1) The provision of affordable housing on site (on the same site as the project
requiring such affordable housing) is impractical given the physical or legal
parameters of the development or site or would be inconsistent with the
character of the neighborhood in which the project is being developed.
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City Council Resolution #140, Series of 2024
Staff Memo, Q3 Fee-in-Lieu Requests
Page 2 of 3
2) The applicant has made a reasonable, good-faith effort in pursuit of providing
the required affordable housing off site through construction of new dwelling
units, the deed restriction of existing dwelling units to affordable housing status,
or through the purchase of affordable housing certificates.
3) The applicant has made a reasonable, good-faith effort in pursuit of providing
the required affordable housing through the purchase and extinguishment of
Certificates of Affordable Housing Credit.
4) The proposal furthers affordable housing goals, and the fee-in-lieu payment will
result in the near-term production of affordable housing units.
The City Council may accept any percentage of a project's total affordable housing
mitigation to be provided through a fee-in-lieu payment, including all or none.
The Affordable Housing Certificates Program has been successful in incentivizing the
private sector to produce affordable housing units for over a decade. Since the inception
of the program, housing for more than 100 Full Time Equivalents has been produced -
without any public dollars being expended.
The program is dependent on two things: 1) the willingness of the private sector to
complete affordable housing projects, and 2) the demand for A ffordable Housing credits
by free-market commercial and residential development to meet their mitigation
requirements. The City established Affordable Housing Certificates as the preferred
means of providing affordable housing mitigation for single-family and duplex
development in order to support the program. There are alternate means of mitigation,
such as voluntarily deed restricting the subject unit to Resident Occupied or buying a free-
market residential unit in town and deed restricting it. These options have been unpopular
and may be cost prohibitive. Mitigation may be paid with cash by right for projects that
generate 0.1 FTEs or less.
On November 19th, 2024, the Planning and Zoning Commission approved and
recommended Resolution #134, Series of 2024, with a 6-0 vote, providing support to City
Council for payment of FIL for the subject properties.
STAFF DISCUSSION:
Staff confirmed that there is an ongoing shortage of Affordable Housing Certificates. In
response to the Certificate shortage, staff established a policy and a process to facilitate
requests to pay FIL in a “batched” review. This policy was established in 2022, reaffirmed
as an administrative policy in 2024, and was written with the expectation that the requests
would occur on a quarterly basis. This year, a total of eight requests have been approved.
Two requests were approved for Q1 on April 23rd, 2024, and six requests were approved
for Q2 on May 7th, 2024, by City Council. While the process was initially established for
properties that generated mitigation below 1.5 FTEs, it has now been expanded due to
the ongoing shortage of credits. The batched policy now applies to projects that need to
mitigate up to 2.0 FTEs (see Exhibit A). For Q3, Council is asked to consider requests
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City Council Resolution #140, Series of 2024
Staff Memo, Q3 Fee-in-Lieu Requests
Page 3 of 3
from two property owners to pay FIL for their affordable housing mitigation. The projects
have exhausted the avenues to obtain Affordable Housing Certificates, and the projects
are in the final stage of building permit review prior to issuance.
With the confirmed shortage of Affordable Housing Credits, staff supports the batched
requests. Denying the requests would likely lead to suboptimal outcomes for Community
Development customers that have projects with mitigation requirements. It is not
reasonable to expect the property owners to pursue the other mitigation options offered
by the code for the relatively small employee generation related to their homes.
Below are the projects requesting to pay FIL in Q3 of 2024. The FTE and FIL calculations
are estimates that will be confirmed and finalized as the last step of the building permit
process. A project cannot pay FIL for more than 2.0 FTEs through this batched review.
The Category 2 FIL amount is currently $424,288 per FTE. This rate was adopted via
Ordinance #01, Series of 2024 on February 27th, 2024. Yet, the Category 2 FIL rate is
$408,362 per FTE for the projects below as both permits predate the 2024 mitigation rate
update and are vested in the 2023 rate.
• 202 East Main Street – 0.24 Category 2 FTE / $98,006.88 (0035-2023-BRES)
• 1445 Crystal Lake Drive – 0.89 Category 2 FTE / $363,442.18 (0129-2023-BRES)
FINANCIAL IMPACTS: The fee-in-lieu mitigation would go into the 150 Fund for
affordable housing development.
ENVIRONMENTAL IMPACTS:
ALTERNATIVES:
CITY MANAGER COMMENTS:
RECOMMENDATIONS: Staff recommends City Council approve Resolution #140,
Series of 2024, providing approval for payment of FIL for the identified properties.
EXHIBITS:
Resolution #140, Series of 2024
Exhibit A – Title 26 Policy 01-2024
Exhibit B – FIL Request Letters
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City Council – Fee-in-lieu Request
Res. #140, Series of 2024
Page 1 of 2
RESOLUTION #140
(SERIES OF 2024)
A RESOLUTION OF THE ASPEN CITY COUNCIL APPROVING THE ABILITY OF
CERTAIN DEVELOMENT PROJECTS TO PAY FEE-IN-LIEU FOR AFFORDABLE
HOUSING MITIGATION REQUIREMENTS, PER MUNICIPAL CODE SECTION
26.470.110.C.
WHEREAS, The Affordable Housing Certificates Program has been established as the
preferred mechanism within the Land Use Code to provide required affordable housing mitigation;
and,
WHEREAS, the Land Use Code provides a process for an applicant to make a request to
Aspen City Council to pay fee-in-lieu in meeting mitigation requirements as an alternative to
Affordable Housing Certificates in Section 26.470.110.C; and,
WHEREAS, Community Development Staff has analyzed the current market conditions
for Affordable Housing Certificates and has determined that there is a shortage, making it
practically impossible to acquire Affordable Housing Certificates; and,
WHEREAS Community Development has presented and discussed this issue with the
Planning and Zoning Commission; and,
WHEREAS, at a regular meeting on November 19, 2024, the Planning and Zoning
Commission considered the requests of six property owners to pay fee-in-lieu in meeting
affordable housing mitigation requirements, and reviewed staff’s memo, and approved Resolution
#13, Series of 2024, by a six to zero (6-0) vote, recommending Council consideration and approval
of the requests to pay fee-in-lieu.
WHEREAS, at a regular meeting on December 3, 2024, City Council considered the
recommendations of the Community Development Department and the Planning and Zoning
Commission and evaluated the requests to pay fee-in-lieu in meeting affordable housing mitigation
requirements for specific development projects, and by a XX to XX (X - X) vote, approved the
requests.
NOW, THEREFORE BE IT RESOLVED BY THE ASPEN CITY COUNCIL THAT:
Section 1 Approvals:
The following projects are approved to pay fee-in-lieu in meeting affordable housing mitigation
requirements:
• 202 East Main Street – 0.24 Category 2 FTE / $98,006.88 (0035-2023-BRES)
• 1445 Crystal Lake Drive – 0.89 Category 2 FTE / $363,442.18 (0129-2023-BRES)
The FTE and valuations of the fee-in-lieu as presented are estimates only and will be finalized prior
to building permit issuance, or the termination of the deferral agreement as applicable. This
resolution does not approve fee-in-lieu mitigation above 2.0 FTE for a single permit.
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City Council – Fee-in-lieu Request
Res. #140, Series of 2024
Page 2 of 2
Section 2 Existing Litigation:
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 3 Severability:
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 3rd day of December 2024.
Approved as to form: Approved as to content:
______________________________ __________________________________
James R. True, City Attorney Torre, Mayor
Attest:
_______________________________
Nicole Henning, City Clerk
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189
Affordable Housing Credit Narrative
Subject Property: 202 E. Main St.
BOSS.architecture
Attention: City Council
City of Aspen Community Development Department
427 Rio Grande Place
Aspen, CO 81611
August 27, 2024
Dear Director and City Council,
Please accept this application as request for approval to mitigate the Affordable Housing entirely
by fees-in-lieu for development of 202 E. Main Street. (Parcel ID: 273707399001).
202 E. Main Street is currently a retail business in the Mixed Use Zoning District, part of the Main
Street Historic District. The existing historic miner’s cabin is being renovated and converted back into a
Single Family Residence. A non-historic addition is being demolished and a new two-story rear addition
(with garage) is being constructed. The design for this project has been approved by the Historic
Preservation Commission for major development and is under permit review. (0035-2023-BRES)
We are requesting approval for the Affordable Housing fee to be paid entirely in cash. Per the
Land Use Code Section 26.470.110.c, the limits of the site do not allow for the inclusion of additional
housing units. The site is 30’ wide by 100’ long, and the design focus for the project has been to comply
with the City of Aspen and HPC Historic Guidelines in restoration of the historic miner’s cabin.
Multi-family housing would not be appropriate for the scale of the lot or the character and nature of the
historic building. The applicant has made a good-faith effort in pursuit of securing affordable housing
certificates but has not been able to secure any due to the shortage of available housing credits.
The Affordable Housing Mitigation generated by the permit for 202 E Main Street is 0.24 FTE's
requiring mitigation at a Category 2 rate. The applicant is requesting to pay the entire 0.24 FTE as
cash-in-lieu, (0.24 FTE x $408,362 = $98,006.88). Thank you for your consideration in this matter.
Best regards,
Anastasia White, Project Architect
ana@bossarch.com
3300 E.17th Avenue
Denver, CO 80206
(303) 377-6322
www.BOSSarchitecture.com 190
CALLAHAN
CRYSTAL LAKE
LLC, DAVID
ESKENAZI
DNESKENAZI@SANDORDEV.COM
317.258.0759
10689 N PENNSYLVANIA ST #100
INDIANAPOLIS, IN 46280
CITY OF ASPEN
COMMUNITY DEVELOPMENT DIRECTOR
Dear Ben,
Sammi Montalto of Zoning, calculated that the affordable
housing mitigation generated by our new house project
is 0.89 FTEs at Category 2. This was based off our proposal to
build 8,307 square feet, which includes all subgrade space and
the entire garage. While she noted that there are some
options for payment, we would like to pay the entire amount as
a cash-in-lieu. We have not been able to acquire any housing
credits.
See attached applications materials.
Sincerely,
CALLAHAN CRYSTAL LAKE LLC, DAVID ESKENAZI
191
1
MEMORANDUM
TO: MAYOR and COUNCIL MEMBERS
FROM: Katharine A. Johnson, Assistant City Attorney
DATE: November 25, 2024
MEETING DATE: December 3, 2024
RE: Resolution #142 (Series of 2024)/ Adoption of Proposed
Settlement of Outstanding Demolition Permit Appeal Concerning
531 W. Gillespie.
REQUEST OF COUNCIL: Council is requested to consider adoption of Resolution #142,
which would approve a proposed Settlement Agreement of Outstanding Demolition Permit
Appeal.
BACKGROUND: On June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of
2022 (Ordinance #13). Ordinance #13 provided numerous code amendments following the
institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6,
Series of 2022. Among the items adopted pursuant to Ordinance #13 was a restriction on the
number of “Demolition Allotments” that would be issued each year. Specifically, Ordinance #13
included Growth Management Quota System amendments that provide a cap of six (6) standard
Demolition Allotments per year. Furthermore, under the provisions of Ordinance #13,
Council may award up to two (2) additional allotments from future years to property
owners denied an allotment due to a lack of allotments in any calendar year if the property
owner can establish that the property proposed for redevelopment has been owned and
occupied by the applicant or applicant’s immediate family members for at least 35 years
(referred to herein as a “local allotment”).1 Grant of a local allotment does not reduce the
number of allotments available in future years.
Pursuant to Ordinance #23, Series of 2023 (Ordinance #23), a lottery system was adopted by
City Council to distribute Demolition Allotments. In addition, Ordinance #23 created two
additional Demolition Allotments for 2024, thus, due to prior action of Council, four Demolition
Allotments were to be distributed by lottery in 2024. Additionally, Council passed Resolution
#6, Series of 2024, which directed the Community Development Director to ‘carry forward’
1 The local allotment provisions are codified at Section 26.470.110.G of the City of Aspen Land Use Code.
192
2
the two (2) unused and unclaimed local allotments. In total, four (4) Demolition Allotments
and four (4) local allotments were available in 2024. All available 2024 Demolition
Allotments and local allotments have been awarded to qualified properties.2
Following the lottery of the four (4) 2024 Demolition Allotments that took place in February, six
of the ten applicants who did not receive the four allotments timely appealed their denial of an
allotment pursuant to Section 26.470.160.C of the Aspen Land Use Code. After discussion and
negotiations, staff proposed settlement of these six appeals on the terms and conditions set forth
in negotiated settlement agreements. On May 14, 2024, Council authorized resolution of the six
appeals via settlement agreement, thereby granting the six appellants 2025 multi-year allotments
under specific terms and conditions.3 Notably, none of the six appellants that entered into
settlement agreements earlier this year qualified as a 35+ year local eligible for a local allotment.
I point this out because these settlement agreements resulted in the award of all 2025 demolition
allotments. Council, however, has not awarded any 2025 local allotments.
The applicant in this matter is the Estate of Janice S. Collins, by and through the estate’s personal
representative, Michael Collins. The applicant applied for one demolition permit for a single-
family residence located at 531 W. Gillespie on June 18, 2024. The application for a 2024
demolition allotment was denied due to no 2024 allotments being available.
According to the application, Charles and Janice Collins purchased the home in 1967 and resided
in the home until their deaths in 2015 and 2023 respectively. Since their passing, the home has
been occupied by immediate family members. Documentation demonstrates the home has been
owned by the Collins family for 56 years.
On August 20, 2024, the applicant appealed the denial of its application pursuant to Sections
26.470.160.C and 26.316 of the City of Aspen Municipal Code. Pursuant to Section
26.470.160.C, Council may take any such action determined necessary, including but not limited
to making a one-time increase of the annual development allotment sufficient to accommodate
the application.
DISCUSSION: The current code adopted pursuant to Ordinance #13, allows City Council to
grant up to two (2) additional local allotments each year to any property owner that was not
granted an allotment due to lack of allotments available for the calendar year if the property
owner can establish, through documentation, that the property proposed for redevelopment or
expansion has been owned and occupied by the applicants or the applicant’s immediate family
members for at least 35 years. The criteria to be considered is as follows:
1) The property owner or immediate family members have owned the property for at least
thirty-five (35) years.
2) The granting of the allotment furthers the goals, objectives and policies of the Aspen
Area Community Plan.
3) The project meets all review criteria in Section 26.470090.C.3, or a variation is
2 The four Demolition Allotments were awarded via lottery, and the four local allotments were awarded via Resolution
#’s 27, 55, 69, and 70, Series of 2024.
3 See Resolution #62, Series of 2024.
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3
approved by the Planning and Zoning Commission.
Allotments awarded pursuant to this provision shall not be deducted from future years. So,
although all 2025 allotments have been awarded, Council has the option to use its authority to
grant up to two local allotments for year 2025, and such grant will not be deducted from the
allotments that were available for any future year. As proposed, the settlement agreement calls
for resolution of this appeal through the use of a 2025 local allotment and such action would be
consistent with Section 26.470.110.G of the code.
ALTERNATIVES: Council can reject the proposed resolution; in which case these matters
would proceed to appeal. If Council declines to approve the settlement agreement, the City
Attorney’s Office requests a date be set for the appeal hearing.
RECOMMENDATION: Adoption of a settlement agreement is within the discretion of
Council. Nonetheless, staff supports approval of Resolution # 142, Series of 2024.
194
RESOLUTION #142
(Series of 2024)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A SETTLEMENT AGREEMENT TO RESOLVE AN
EXISTING APPEAL AND DISPUTES REGARDING AN APPLICATION FOR
DEMOLITION ALLOTMENT PURSUANT TO ORDINANCE # 13, SERIES OF
2022 AND ORDINANCE # 23, SERIES OF 2023 AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID SETTLEMENT AGREEMENT ON BEHALF OF
THE CITY OF ASPEN, COLORADO.
WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance #13, Series
of 2022 (Ordinance #13). Ordinance #13 provided numerous code amendments following
the institution of a moratorium adopted by Council on March 15, 2022, pursuant to
Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance # 13 was a
restriction on the number of demolition allotments that would be issued each year; and,
WHEREAS, Ordinance #13 included Growth Management Quota System
amendments that provide a cap of six (6) standard Demolition Allotments per year, and
stated that such allotments would be granted on a first come/first served basis; and,
WHEREAS, Ordinance #13 provided for up to two (2) additional Demolition
Allotments for local property owners who were not granted a Demolition Allotment due to
lack of allotments for the calendar year, and,
WHEREAS, pursuant to Ordinance #13, Council may award up to two (2)
allotments from future years to property owners denied an allotment due to a lack of
allotments in any calendar year if the property owner can establish that the property
proposed for redevelopment has been owned and occupied by the applicant or applicant’s
immediate family members for at least 35 years (referred to herein as a “local allotment”);
and,
WHEREAS, pursuant to Ordinance #23, Series of 2023 (Ordinance #23), a lottery
system was adopted by City Council to distribute Demolition Allotments. In addition,
Ordinance #23 created two additional Demolition Allotments for 2024, thus allowing four
Demolition Allotments to be distributed by lottery; and,
WHEREAS, on January 9, 2024, Council approved Resolution #006, Series of
2024, to ‘carry forward’ two unused and unclaimed local allotments, thereby creating four
local allotments available in 2024; and,
WHEREAS, numerous applicants participated in the lottery that was conducted on
February 20, 2024; and,
WHEREAS, all available 2024 demolition allotments were awarded through the
195
lottery conducted on February 20, 2024; and,
WHEREAS, Council awarded four 2024 local allotments via Resolutions #’s 27,
55, 69 and 70, Series of 2024; and,
WHEREAS, the Estate of Janice S. Collins, by and through its personal
representative, (“applicant”) filed an application for a 2024 demolition allotment for
property commonly known by address as 531 W. Gillespie Street, in Aspen, Colorado
subsequent to the February 20, 2024 lottery and award of the 2024 local allotments; and,
WHEREAS, the applicant provided sufficient evidence to qualify for a 35+ year
local allotment pursuant to section 26.470.110(g); and,
WHEREAS, the Community Development Director issued a Notice of Denial to
the applicant on the grounds that there were no 2024 allotments available; and
WHEREAS, the applicant timely filed a notice of appeal of the Notice of Denial
pursuant to Section 26.470.160(c), which appeal is presently pending before City Council;
and,
WHEREAS, the City staff and the applicant desire to resolve the appeal and any
further disputes that could arise involving the City and the applicant concerning this
application and appeal; and
WHEREAS, there has been submitted to the City Council a Settlement
Agreement, which if approved by the City Council would resolve this appeal by granting
to the applicant a 2025 local demolition allotment on the terms set forth within the
Settlement Agreement. The proposed Settlement Agreement is attached hereto as Exhibits
"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 Settlement Agreement
attached hereto as Exhibit "A" and does hereby authorize the City Manager to execute said
Settlement Agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the 3rd day of December 2024.
____________________________________
Torre , Mayor
196
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
Aspen, Colorado , at a meeting held December 3, 2024.
____________________________________
Nicole Henning, City Clerk
197
198
199
200
201
1
MEMORANDUM
TO: MAYOR and COUNCIL MEMBERS
FROM: Katharine A. Johnson, Assistant City Attorney
DATE: November 25, 2024
MEETING DATE: December 3, 2024
RE: Resolution #143 (Series of 2024)/ Adoption of Proposed
Settlement of Outstanding Demolition Permit Appeal Concerning
232 McSkimming Road.
REQUEST OF COUNCIL: Council is requested to consider adoption of Resolution #143,
which would approve a proposed Settlement Agreement of Outstanding Demolition Permit
Appeal.
BACKGROUND: On June 28, 2022, Aspen City Council adopted Ordinance No. 13, Series of
2022 (Ordinance #13). Ordinance #13 provided numerous code amendments following the
institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6,
Series of 2022. Among the items adopted pursuant to Ordinance #13 was a restriction on the
number of “Demolition Allotments” that would be issued each year. Specifically, Ordinance #13
included Growth Management Quota System amendments that provide a cap of six (6) standard
Demolition Allotments per year. Furthermore, under the provisions of Ordinance #13,
Council may award up to two (2) additional allotments from future years to property
owners denied an allotment due to a lack of allotments in any calendar year if the property
owner can establish that the property proposed for redevelopment has been owned and
occupied by the applicant or applicant’s immediate family members for at least 35 years
(referred to herein as a “local allotment”).1 Grant of a local allotment does not reduce the
number of allotments available in future years.
Pursuant to Ordinance #23, Series of 2023 (Ordinance #23), a lottery system was adopted by
City Council to distribute Demolition Allotments. In addition, Ordinance #23 created two
additional Demolition Allotments for 2024, thus, due to prior action of Council, four Demolition
Allotments were to be distributed by lottery in 2024. Additionally, Council passed Resolution
#6, Series of 2024, which directed the Community Development Director to ‘carry forward’
1 The local allotment provisions are codified at Section 26.470.110.G of the City of Aspen Land Use Code.
202
2
the two (2) unused and unclaimed local allotments. In total, four (4) Demolition Allotments
and four (4) local allotments were available in 2024. All available 2024 Demolition
Allotments and local allotments have been awarded to qualified properties.2
Following the lottery of the four (4) 2024 Demolition Allotments that took place in February, six
of the ten applicants who did not receive the four allotments timely appealed their denial of an
allotment pursuant to Section 26.470.160.C of the Aspen Land Use Code. After discussion and
negotiations, staff proposed settlement of these six appeals on the terms and conditions set forth
in negotiated settlement agreements. On May 14, 2024, Council authorized resolution of the six
appeals via settlement agreement, thereby granting the six appellants 2025 multi-year allotments
under specific terms and conditions.3 Notably, none of the six appellants that entered into
settlement agreements earlier this year qualified as a 35+ year local eligible for a local allotment.
I point this out because these settlement agreements resulted in the award of all 2025 demolition
allotments. Council, however, has not awarded any 2025 local allotments.
The applicant in this matter is the Jerome L. Blumberg Revocable Trust and Suzanne J. Blumberg
Revocable Trust, by and through the trustees, Jerome and Suzanne Blumberg. The applicant
applied for one demolition permit for a single-family residence located at 232 McSkimming Road
on May 29, 2024. The application for a 2024 demolition allotment was denied due to no 2024
allotments being available.
According to the notice of appeal, attached hereto, the Blumberg’s purchased the home in 1979
and reside in the home currently. Pursuant to the real estate record of the Pitkin County Clerk
and Recorder, the Blumberg’s acquired the property via quit claim deed on May 4, 1979 recorded
at reception no. 214179, and have lived at the property since.
The applicant timely appealed the denial of its application pursuant to Sections 26.470.160.C and
26.316 of the City of Aspen Municipal Code. Pursuant to Section 26.470.160.C, Council may
take any such action determined necessary, including but not limited to making a one-time
increase of the annual development allotment sufficient to accommodate the application.
DISCUSSION: The current code adopted pursuant to Ordinance #13, allows City Council to
grant up to two (2) additional local allotments each year to any property owner that was not
granted an allotment due to lack of allotments available for the calendar year if the property
owner can establish, through documentation, that the property proposed for redevelopment or
expansion has been owned and occupied by the applicants or the applicant’s immediate family
members for at least 35 years. The criteria to be considered is as follows:
1) The property owner or immediate family members have owned the property for at least
thirty-five (35) years.
2) The granting of the allotment furthers the goals, objectives and policies of the Aspen
Area Community Plan.
3) The project meets all review criteria in Section 26.470.090.C.3, or a variation is
2 The four Demolition Allotments were awarded via lottery, and the four local allotments were awarded via Resolution
#’s 27, 55, 69, and 70, Series of 2024.
3 See Resolution #62, Series of 2024.
203
3
approved by the Planning and Zoning Commission.
Allotments awarded pursuant to this provision shall not be deducted from future years. So,
although all 2025 allotments have been awarded, Council has the option to use its authority to
grant up to two local allotments for year 2025, and such grant will not be deducted from the
allotments that were available for any future year. As proposed, the settlement agreement calls
for resolution of this appeal through the use of a 2025 local allotment and such action would be
consistent with Section 26.470.110.G of the code.
ALTERNATIVES: Council can reject the proposed resolution; in which case these matters
would proceed to appeal. If Council declines to approve the settlement agreement, the City
Attorney’s Office requests a date be set for the appeal hearing.
RECOMMENDATION: Adoption of a settlement agreement is within the discretion of Council.
Nonetheless, staff supports approval of Resolution # 143, Series of 2024.
204
To Aspen City Council Members:
This is an appeal for a denial of demo permit we recently applied for our home at 232 McSkimming Rd.
We understand there were only so many permits allotted but did not understand it fully. For that we are
Sorry.
We are 48 year residents of our great town Aspen, Colorado. But it may be time for us to move on.
We certainly don’t want to tear our home down but if we can sell it should be available to new buyers
So they can put up a home that fits the neighborhood and is built well enough compared to ours which
Has seen its day..It is just not efficient..
We have paid our dues here over the last 48 years and have live in our home since 1979.. Unfortunately
We have some health issues,,hate going into them..but Suzanne now has some cognitive impairment
Onset dementia..and I have some other issues…It just may be time to leave the place we loved and our
where we raised our daughter Brooke to a better suited place for us at this point in our lives..
By doing this sooner that later and it may take awhile to sell our home it would be better for us to have
This demo permit in hand as soon as possible…
Please reach out to me and Suzanne with any questions..We have submitted everything to Kevin Rayes
And he passed it on..
Thank you so much in advance for your help for my wife and I.
Jerry and Suzanne Blumberg
205
RESOLUTION #143
(Series of 2024)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A SETTLEMENT AGREEMENT TO RESOLVE AN
EXISTING APPEAL AND DISPUTES REGARDING AN APPLICATION FOR
DEMOLITION ALLOTMENT PURSUANT TO ORDINANCE #13, SERIES OF
2022 AND ORDINANCE #23, SERIES OF 2023 AND AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID SETTLEMENT AGREEMENT ON BEHALF OF
THE CITY OF ASPEN, COLORADO.
WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance #13, Series
of 2022 (Ordinance #13). Ordinance #13 provided numerous code amendments following
the institution of a moratorium adopted by Council on March 15, 2022, pursuant to
Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance # 13 was a
restriction on the number of demolition allotments that would be issued each year; and,
WHEREAS, Ordinance #13 included Growth Management Quota System
amendments that provide a cap of six (6) standard Demolition Allotments per year, and
stated that such allotments would be granted on a first come/first served basis; and,
WHEREAS, Ordinance #13 provided for up to two (2) additional Demolition
Allotments for local property owners who were not granted a Demolition Allotment due to
lack of allotments for the calendar year, and,
WHEREAS, pursuant to Ordinance #13, Council may award up to two (2)
allotments from future years to property owners denied an allotment due to a lack of
allotments in any calendar year if the property owner can establish that the property
proposed for redevelopment has been owned and occupied by the applicant or applicant’s
immediate family members for at least 35 years (referred to herein as a “local allotment”);
and,
WHEREAS, pursuant to Ordinance #23, Series of 2023 (Ordinance #23), a lottery
system was adopted by City Council to distribute Demolition Allotments. In addition,
Ordinance #23 created two additional Demolition Allotments for 2024, thus allowing four
Demolition Allotments to be distributed by lottery; and,
WHEREAS, on January 9, 2024, Council approved Resolution #006, Series of
2024, to ‘carry forward’ two unused and unclaimed local allotments, thereby creating four
local allotments available in 2024; and,
WHEREAS, numerous applicants participated in the lottery that was conducted on
February 20, 2024; and,
WHEREAS, all available 2024 demolition allotments were awarded through the
206
lottery conducted on February 20, 2024; and,
WHEREAS, Council awarded four 2024 local allotments via Resolution #’s 27,
55, 69 and 70, Series of 2024; and,
WHEREAS, the Jerome L. Blumberg Revocable Trust and Suzanne J. Blumberg
Revocable Trust, by and through its trustees, (“applicant”) filed an application for a 2024
demolition allotment for property commonly known by address as 232 McSkimming
Road, in Aspen, Colorado subsequent to the February 20, 2024, lottery and award of the
2024 local allotments; and,
WHEREAS, the applicant provided sufficient evidence to qualify for a 35+ year
local allotment pursuant to section 26.470.110.G; and,
WHEREAS, the Community Development Director issued a Notice of Denial to
the applicant on the grounds that there were no 2024 allotments available; and
WHEREAS, the applicant timely filed a notice of appeal of the Notice of Denial
pursuant to Section 26.470.160.C, which appeal is presently pending before City Council;
and,
WHEREAS, the City staff and the applicant desire to resolve the appeal and any
further disputes that could arise involving the City and the applicant concerning this
application and appeal; and
WHEREAS, there has been submitted to the City Council a Settlement
Agreement, which if approved by the City Council would resolve this appeal by granting
to the applicant a 2025 local demolition allotment on the terms set forth within the
Settlement Agreement. The proposed Settlement Agreement is attached hereto as Exhibits
"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 Settlement Agreement
attached hereto as Exhibit "A" and does hereby authorize the City Manager to execute said
Settlement Agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the 3rd day of December 2024.
____________________________________
Torre , Mayor
207
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
Aspen, Colorado , at a meeting held December 3, 2024.
____________________________________
Nicole Henning, City Clerk
208
209
210
211
212
213
214
CMS # 173765
Contract Number: Page 1 of 30 Version 062020
PARTICIPATING ADDENDUM
to NASPO ValuePoint
Public Safety Communications Products, Services, and Solutions
Administered by the State of Washington
with Motorola Solutions, Inc.
Master Agreement No. 00318
And
The State of Colorado
Contract # 173765
1. PARTIES AND SCOPE
This Participating Addendum, including all of its attached exhibits and other documents
incorporated by reference (the “Participating Addendum”), is entered into by and between
Motorola Solutions, Inc. (the “Contractor”), and the State of Colorado (the “State”). This
Participating Addendum covers participation in the Public Safety Communications Products,
Services, and Solutions Master Agreement led by the State of Washington (the “Master
Agreement”), for use by State agencies and other entities located in Colorado which are authorized
by law to utilize State contracts with the prior approval of the State Purchasing Director. The
specific Goods and Services provided under the Master Agreement are listed in Exhibit C
Products and Price List of this agreement.
2. PARTICIPATION
Agencies, political subdivisions and other entities (including cooperatives) authorized by the
State’s statutes to use State contracts may make purchases under this Participating Addendum as
of its Effective Date. Issues of interpretation and eligibility for participation are solely within the
authority of the Chief Procurement Officer.
3. STATE MODIFICATIONS TO MASTER AGREEMENT AND APPLICABILITY
To the extent not modified by this Participating Addendum and all its exhibits, the Master
Agreement and all its terms and conditions shall apply to this Participating Addendum. If any term
of this Participating Addendum conflicts with the Master Agreement, then this Participating
Addendum shall control for all transactions between the State and the Contractor under this
Participating Addendum. All terms defined in the Master Agreement shall have the meaning given
to them in the Master Agreement, except for those terms specifically defined differently in this
PARTICIPATING ADDENDUM.
4. RESERVED
5. PRIMARY CONTACTS AND PERSONNEL RESPONSIBILITIES
The primary contacts for this Participating Addendum are the individuals named in this section.
Either Party may change its primary contacts or primary contacts contact information by notice
submitted to the other party in writing no later than 5 days following the date on which the change
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
14215
CMS # 173765
Contract Number: Page 2 of 30 Version 062020
occurs, without a formal amendment to this Participating Addendum. The Contractor’s primary
contact shall be ultimately responsible for ensuring that all Goods are delivered and all Services
are completed in accordance with this Participating Addendum.
Primary Contact for the State: Primary Contact for the Contractor:
Greg Draughon Lane Feingold
Colorado State Purchasing & Contracts Office Motorola Solutions, Inc.
1525 Sherman Street, 3rd Floor 7237 Church Ranch Blvd, #406
Denver, CO 80203 Westminster, CO 80021
303-866-4552 720-338-7624
Gregory.Draughon@state.co.us Lane.Feingoild@motorolasolutions.com
Each individual identified in this §5 of the Participating Addendum shall be the primary contact of
the designating Party. All notices required or permitted to be given under this Participating
Addendum shall be in writing and shall be delivered (A) by hand with receipt required, (B) by
certified or registered mail to such Party’s primary contact at the address set forth above or (C) as
an email with read receipt requested to the primary contact at the email address, if any, set forth
above. If a Party delivers a notice to another through email and the email is undeliverable then,
unless the Party has been provided with an alternate email contact, the Party delivering the notice
shall deliver the notice by hand with receipt required or by certified or registered mail to such
Party’s primary contact at the address set forth above. Unless otherwise provided in this
Participating Addendum, notices shall be effective upon delivery of the written notice.
In addition to the primary contact in this section, the Contractor shall also provide an individual
who is ultimately responsible for the creation and submission of the quarterly volume report
described in Exhibit A of this Participating Addendum. This individual, as named in this section,
shall ensure that all required quarterly volume reports are accurate and delivered by the appropriate
due date for that quarterly volume report. The Contractor may change this individual or their
contact information by notice submitted to the other party in writing no later than 5 days following
the date on which the change occurs, without a formal amendment to this Participating Addendum.
Individual Responsible for Quarterly Volume Report Creation and Submission:
Lane Feingold
Motorola Solutions, Inc.
7237 Church Ranch Blvd, #406
Westminster, CO 80021
720-338-7624
Lane.Feingoild@motorolasolutions.com
6. SUBCONTRACTORS
The Contractor may only use Subcontractors, as defined in Exhibit A. §4, under this Participating
Addendum if the State has provided written approval for the Contractor to use that Subcontractor.
All such approved Subcontractors authorized in the State of Colorado, as shown on the dedicated
Contractor website, are approved to provide sales and service support to the State and any
Purchasing Entity in the State. The Contractor’s Subcontractor’s participation shall be in
accordance with the terms and conditions set forth in the Master Agreement and this Participating
Addendum, as appropriate.
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7. ORDERS
Any Order placed by a Purchasing Entity in the State of Colorado for a Good or Service available
under this Participating Addendum shall be deemed to be a sale (and governed by the prices and
other terms and conditions) under the Master Agreement and this Participating Addendum unless
the parties to the Order agree in writing that another contract or agreement applies to such Order
or the terms of that Order control to the extent that they conflict with the terms of the Master
Agreement or this Participating Addendum.
8. ORDER OF PRECEDENCE AND ATTACHED EXHIBITS
All of the exhibits listed in this section are attached to this Participating Addendum and are
incorporated herein by reference. In the event of a conflict or inconsistency between this
Participating Addendum and any exhibits or attachment such conflict or inconsistency shall be
resolved by reference to the documents in the following order of priority:
A. Colorado Special Provisions in §20 of Exhibit A, State Specific Terms
B. Exhibit E, Safeguarding Requirements for Federal Tax Information, as applicable
C. Exhibit D, HIPPA Business Associate Agreement, as applicable
D. Exhibit F, Information Technology Provisions
E. The provisions of this Participating Addendum
F. All other sections of Exhibit A, State Specific Terms
G. Exhibit B Statement of Work
H. Exhibit C Products and Price List
Notwithstanding anything to the contrary herein, the State and Purchasing Entities shall not be
subject to any provision incorporated in any terms and conditions appearing on Contractor’s or
Subcontractor’s website, any provision incorporated into any click-through or online agreements,
or any provisions incorporated into any other document or agreement between the Parties that (i)
requires the State to indemnify or hold harmless Contractor or any other party, (ii) is in violation
of State law as, regulations, rules, fiscal rules, policies, or other State requirements as deemed
solely by the State or (iii) is contrary to any of the provisions incorporated into Exhibit A, §19 or
the main body of this Participating Addendum.
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THE PARTIES HERETO HAVE EXECUTED THIS AMENDMENT
CONTRACTOR
Motorola Soultions, Inc.
By: Jack Molloy
Title:
By:______________________________________________
*Signature
Date: _________________________
STATE OF COLORADO
Jared S. Polis, Governor
Department of Personnel & Administration
State Purchasing and Contracts Office
Tobin Follenweider, Deputy Executive Director
By:______________________________________________
Sherri Maxwell, Chief Procurement Officer, or
John Chapman, State Purchasing Manager
Date: _________________________
STATE OF COLORADO
Governor’s Office of Information Technology
In accordance with §24-30-202, C.R.S., if this Contract is for a Major Information Technology Project, this Contract is not
valid until signed and dated below by the Chief Information Officer or an authorized delegate.
STATE CHIEF INFORMATION OFFICER
Anthony Neal-Graves, Chief Information Officer and Executive Director
Signed: ___________________________________________
Printed Name: _____________________________________
Title: _____________________________________________
Date: _________________________
ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER
§24-30-202 C.R.S. requires the State Controller to approve all State Contracts. This Participating Addendum is not valid until signed
and dated below by the State Controller or an authorized delegate.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:___________________________________________
Name: __________________________________________
Date:_____________________
ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER
§24-30-202, C.R.S. requires the State Controller to approve all State Contracts. This Participating Addendum is not valid until signed and
dated below by the State Controller or an authorized delegate.
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6/29/2022
6/29/2022
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PARTICIPATING ADDENDUM
EXHIBIT A
STATE SPECIFIC TERMS
1. PARTIES AND SCOPE ............................................................................................................ 1
2. PARTICIPATION ..................................................................................................................... 1
3. STATE MODIFICATIONS TO MASTER AGREEMENT AND APPLICABILITY ............. 1
4. RESERVED…………………………………………………………………………………...1
5. PRIMARY CONTACTS AND PERSONNEL RESPONSIBILITIES ..................................... 1
6. SUBCONTRACTORS .............................................................................................................. 2
7. ORDERS .................................................................................................................................... 3
8. ORDER OF PRECEDENCE AND ATTACHED EXHIBITS ................................................. 3
9. AUTHORITY ............................................................................................................................ 5
10. PURPOSE .................................................................................................................................. 5
11. TERM ........................................................................................................................................ 6
12. DEFINITIONS .......................................................................................................................... 7
13. STATEMENT OF WORK ...................................................................................................... 10
14. PAYMENTS TO CONTRACTOR ......................................................................................... 11
15. PAYMENTS TO STATE ........................................................................................................ 13
16. REPORTING – NOTIFICATION ........................................................................................... 13
17. CONTRACTOR RECORDS ................................................................................................... 15
18. CONFIDENTIAL INFORMATION-STATE RECORDS ...................................................... 15
19. CONFLICTS OF INTEREST .................................................................................................. 17
20. INSURANCE .......................................................................................................................... 17
21. BREACH OF CONTRACT .................................................................................................... 20
22. REMEDIES ............................................................................................................................. 20
23. DISPUTE RESOLUTION ....................................................................................................... 22
24. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ........................................ 23
25. OBLIGATIONS AND RIGHTS IN THE EVENT OF TERMINATION OF ORDER OR
CONTRACT ............................................................................................................................ 23
26. STATEWIDE CONTRACT MANAGEMENT SYSTEM ..................................................... 24
27. GENERAL PROVISIONS ...................................................................................................... 24
28. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ....................... 27
EXHIBIT B STATEMENT OF WORK .................................................................................... 1
EXHIBIT C PRODUCTS AND PRICE LIST .......................................................................... 1
EXHIBIT D HIPAA BUSINESS ASSOCIATE AGREEMENT .............................................. 1
EXHIBIT E SAFEGUARDING REQUIREMENTS FOR FEDERAL TAX INFO………….1
EXHIBIT F INFORMATION AND TECHNOLOGY SPECIAL PROVISIONS……………1
1. AUTHORITY
Authority to enter into this Participating Addendum exists in the Colorado Procurement Code, §24-
102-202, C.R.S. and 1 CCR 101-9 R-24-102-202-01., and its associated rules.
2. PURPOSE
The Parties are entering into this Participating Addendum for the Contractor to provide Public
Safety Communications Products, Services, and Solutions to Purchasing Entities. The Contractor
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was selected as a result of State Price Agreement.
3. TERM
A. Initial Term - Work Commencement
The Parties’ respective performances under this Participating Addendum shall commence on
the Effective Date and shall be co-terminus with NASPO ValuePoint Master Agreement
00318. Unless this Participating Addendum is terminated earlier, as described herein, or the
State cancels its participation as described in the Master Agreement (the “Term”), the term
of the Participating Addendum shall follow the Master Agreement initial term and will be
automatically extended beyond the initial term if the Master Agreement term is extended (See
Section 3.B.).
B. Extension of Term
If the term of NASPO ValuePoint Master Agreement is extended for any reason, the Term of
this Participating Addendum shall be automatically modified to account for that extension,
so long as such extension complies with the Colorado Procurement Code.
C. End of Term Extension
If this Participating Addendum approaches the end of its Initial Term, or any Extension Term
then in place, the State, at its discretion, upon written notice to Contractor’s primary contact
listed in §5 of the Participating Addendum and in accordance with §5 of this Participating
Addendum, may unilaterally extend such Initial Term or Extension Term for a period not to
exceed 2 months (an “End of Term Extension”), regardless of whether additional Extension
Terms are available or not. The provisions of this Participating Addendum in effect when
such notice is given shall remain in effect during the End of Term Extension. The End of
Term Extension shall automatically terminate upon execution of a replacement contract or
modification extending the total term of this Participating Addendum.
D. Order Term
Orders may only be placed prior to the expiration or earlier termination of this Participating
Addendum, but may have a delivery date or performance period that extends no longer than
120 calendar days following that expiration or earlier termination date. Regardless of
whether this Participating Addendum has expired or has been terminated, the Contractor shall
comply with all Orders that extend past the expiration or termination, as described in this
section, and all requirements of this Participating Addendum necessary to complete
outstanding Orders shall survive the expiration or termination of this Participating Addendum
until all Orders are complete.
E. Early Termination in the Public Interest
The State is entering into this Participating Addendum to serve the public interest of the State
of Colorado as determined by its Governor, General Assembly, or Courts. A determination
that this Contract should be terminated in the public interest shall not be equivalent to a State
right to terminate for convenience. This subsection shall not apply to a termination of this
Participating Addendum by the State for breach by Contractor, which shall be governed by
§14.A.i.
i. Method and Content
The State shall notify Contractor of such termination in accordance with §5 of this
Participating Addendum. The notice shall specify the effective date of the termination
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and whether it affects all or a portion of this Participating Addendum, and shall include,
to the extent practicable, the public interest justification for the termination.
ii. Obligations and Rights
Upon receipt of notice for termination in the public interest, Contractor shall be subject
to the rights and obligations set forth in §Error! Reference source not found..
iii. Payments
If the State terminates this Participating Addendum in the public interest, the
Purchasing Entities shall pay Contractor according to their orders with the Contractor
for Goods provided and Services rendered. The sum of any and all payments shall not
exceed the maximum amount payable to Contractor under each order.
4. DEFINITIONS
The following terms shall be construed and interpreted as follows:
A. “Administration Fee” means the fee that is due to the State for the administration of this
Participating Addendum, as described in §7. A. of this Exhibit A.
B. “Breach of Contract” means the failure of a Party to perform any of its obligations in
accordance with this Contract, in whole or in part or in a timely or satisfactory manner. The
institution of proceedings under any bankruptcy, insolvency, reorganization or similar law,
by or against Contractor, or the appointment of a receiver or similar officer for Contractor or
any of its property, which is not vacated or fully stayed within thirty (30) days after the
institution of such proceeding, shall also constitute a breach. If Contractor is debarred or
suspended under §24-109-105, C.R.S. at any time during the term of this Contract, then such
debarment or suspension shall constitute a breach.
C. “Business Day” means any day in which the State is open and conducting business, but shall
not include Saturday, Sunday or any day on which the State observes one of the holidays
listed in §24-11-101(1), C.R.S.
D. “Ceiling Price” means the maximum price a Contractor or a Subcontractor may charge for
a Good or Service under this Participating Addendum.
E. “Chief Procurement Officer” means the individual to whom the Executive Director of the
Department of Personnel & Administration has delegated his or her authority pursuant to
§24-102-202, C.R.S. to procure or supervise the procurement of all supplies and services
needed by the state.
F. “CJI” means criminal justice information collected by criminal justice agencies needed for
the performance of their authorized functions, including, without limitation, all information
defined as criminal justice information by the U.S. Department of Justice, Federal Bureau of
Investigation, Criminal Justice Information Services Security Policy, as amended, and all
Criminal Justice Records as defined under §24-72-302, C.R.S.
G. “Confidential Information” means any and all information that is normally considered
confidential in nature, and includes, but is not limited to, all State Records not subject to
disclosure under the Colorado Open Records Act, §§24-72-200.1, et seq., C.R.S. (“CORA”).
H. “Contract” means this Participating Addendum, including all attached Exhibits, all
documents incorporated by reference, all referenced statutes, rules and cited authorities, and
any future modifications thereto.
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I. “Contract Funds” means the funds that have been appropriated, designated, encumbered, or
otherwise made available for payment by a Purchasing Entity for Orders placed under this
Participating Addendum.
J. “CORA” means the Colorado Open Records Act, §§24-72-200.1, et. seq., C.R.S.
K. “Effective Date” means the date Contract is signed by the State Controller or their designee.
L. “End of Term Extension” means the time period defined in §3. C. of this Exhibit A.
M. “Environmentally Preferable Products” means products that have a lesser or reduced
adverse effect on human health and the environment when compared with competing
products that serve the same purpose, as defined in §24-103-904, C.R.S.
N. “Effective Date” means the date on which this Participating Addendum is approved and
signed by the Colorado State Controller or designee, as shown on the Signature Page for this
Participating Addendum. If this Contract is for a Major Information Technology Project, as
defined in §24-37.5-102(2.6), C.R.S., then the Effective Date of this Contract shall be the
later of the date on which this Contract is approved and signed by the State’s Chief
Information Officer or authorized delegate or the date on which this Contract is approved and
signed by the State Controller or authorized delegate, as shown on the Signature Page for this
Contract.
O. “Exhibits” means the following exhibits attached to this Contract:
i. Exhibit A, State Specific Terms.
ii. Exhibit B, Statement of Work.
iii. Exhibit C, Products and Price List
iv. Exhibit D, HIPAA Business Associate Agreement
v. Exhibit E, Safeguarding Federal Tax Information
vi. Exhibit F, Information Technology Provisions
P. “Extension Term” means the time period defined in §3. B.
Q. “Goods” means any movable material acquired, produced, or delivered by Contractor as set
forth in this Participating Addendum and shall include any movable material acquired,
produced, or delivered by Contractor in connection with the Services.
R. “Incident” means any accidental or deliberate event that results in or constitutes an imminent
threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of
any communications or information resources of the State, which are included as part of the
Work, as described in §§24-37.5-401, et. seq., C.R.S. Incidents include, without limitation
(i) successful attempts to gain unauthorized access to a State system or State Information
regardless of where such information is located; (ii) unwanted disruption or denial of service;
(iii) the unauthorized use of a State system for the processing or storage of data; or (iv)
changes to State system hardware, firmware, or software characteristics without the State’s
knowledge, instruction, or consent.
S. “Initial Term” means the time period defined in §3.A of this Exhibit A.
T. “Order” means any delivery order, purchase order, contract, agreement or other binding
document used by a Purchasing Entity to order the Goods and Services described in this
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Participating Addendum from the Contractor, and shall include any modification to such a
document.
U. “Party” means the State or Contractor, and “Parties” means both the State and Contractor.
V. “Purchasing Entity” means any entity or organization that has been authorized by the State
to place Orders with the Contractor, and may include, without limitation, agencies of the
State, government supported institution of higher education within the State, political
subdivisions of the State, authorized non-profit organizations and other authorized entities.
W. “PCI” means payment card information including any data related to credit card holders’
names, credit card numbers, or the other credit card information as may be protected by state
or federal law.
X. “PII” means personally identifiable information including, without limitation, any
information maintained by the State about an individual that can be used to distinguish or
trace an individual’s identity, such as name, social security number, date and place of birth,
mother‘s maiden name, or biometric records; and any other information that is linked or
linkable to an individual, such as medical, educational, financial, and employment
information. PII includes, but is not limited to, all information defined as personally
identifiable information in §§24-72-501 and 24-73-101, C.R.S.
Y. “PHI” means any protected health information, including, without limitation any information
whether oral or recorded in any form or medium: (i) that relates to the past, present or future
physical or mental condition of an individual; the provision of health care to an individual;
or the past, present or future payment for the provision of health care to an individual; and
(ii) that identifies the individual or with respect to which there is a reasonable basis to believe
the information can be used to identify the individual. PHI includes, but is not limited to, any
information defined as Individually Identifiable Health Information by the federal Health
Insurance Portability and Accountability Act.
Z. “Services” means the services to be performed by Contractor as set forth in this Participating
Addendum, and shall include any services to be rendered by Contractor in connection with
the Goods.
AA. “State Confidential Information” means any and all State Records not subject to disclosure
under CORA. State Confidential Information shall include, but is not limited to, PII, PCI, and
State personnel records not subject to disclosure under CORA. State Confidential
Information shall not include information or data concerning individuals that is not deemed
confidential but nevertheless belongs to the State, which has been communicated, furnished,
or disclosed by the State to Contractor which (i) is subject to disclosure pursuant to CORA;
(ii) is already known to Contractor without restrictions at the time of its disclosure to
Contractor; (iii) is or subsequently becomes publicly available without breach of any
obligation owed by Contractor to the State; (iv) is disclosed to Contractor, without
confidentiality obligations, by a third party who has the right to disclose such information; or
(v) was independently developed without reliance on any State Confidential Information.
With respect to Motorola, “Confidential Information” means any and all non-public
information provided by one Party (“Discloser”) to the other (“Recipient”) that is disclosed
under this Agreement in oral, written, graphic, machine recognizable, or sample form, being
clearly designated, labeled or marked as confidential or its equivalent or that a reasonable
businessperson would consider non-public and confidential by its nature. Confidential
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Information will also include Products and Services, and Documentation, as well as any other
information relating to the Products and Services.
BB. “State Fiscal Rules” means that fiscal rules promulgated by the Colorado State Controller
pursuant to §24-30-202(13) (a), C.R.S.
CC. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and
ending on June 30 of the following calendar year. If a single calendar year follows the term,
then it means the State Fiscal Year ending in that calendar year.
DD. “State Records” means any and all State data, information, and records, regardless of
physical form, including, but not limited to, information subject to disclosure under CORA.
EE. “Subcontractor” means third-parties, if any, engaged by Contractor pursuant to §18.B. to
aid in performance of the Work. The term “Subcontractor” includes, without limitation, any
dealers, distributors, partners or resellers engaged by the Contractor to perform the Work.
FF. “Tax Information” means federal and State of Colorado tax information including, without
limitation, federal and State tax returns, return information, and such other tax-related
information as may be protected by federal and State law and regulation. Tax Information
includes, but is not limited to all information defined as federal tax information in Internal
Revenue Service Publication 1075.
GG. “Work” means the Goods delivered and Services performed pursuant to this Contract.
HH. “Work Product” means the tangible and intangible results of the Work, whether finished or
unfinished, including drafts. Work Product includes, but is not limited to, documents, text,
software (including source code), research, reports, proposals, specifications, plans, notes,
studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys,
maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work
Product” does not include any material that was developed prior to the Effective Date that is
used, without modification, in the performance of the Work. Work Product also does not
include the software, tools, data, and other materials, including designs, utilities, models,
methodologies, systems, and specifications, which Contractor has developed or licensed
from third parties (including any corrections, bug fixes, enhancements, updates,
modifications, adaptations, translations, de-compilations, disassembly’s, or derivative works
of the foregoing, which Contractor gives the State access to.
Any other term used in this Participating Addendum that is defined in an Exhibit shall be construed
and interpreted as defined in that Exhibit.
5. STATEMENT OF WORK
Contractor shall complete the Work as described in this Participating Addendum and in accordance
with the provisions of Exhibits A, B, C and D, and with any Purchasing Entity’s Order. Contractor
personnel shall work cooperatively with State and Purchasing Entity staff to ensure the completion
of the Work.
A. Ordering and Order Fulfillment
i. Ordering
a. Contractor shall provide a complete and accurate Internal Revenue Service form
W9 to the State prior to accepting an Order from any Purchasing Entity. Upon a
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request by a Purchasing Entity, Contractor shall provide a complete and accurate
Internal Revenue Service form W9 to that Purchasing Entity.
b. Each Purchasing Entity may complete an Order in accordance with its own rules
and policies, as available to Contractor, using the appropriate documentation for
that organization to issue an Order.
c. Contractor shall communicate directly with each Purchasing Entity related to that
Purchasing Entity’s Orders.
d. Contractor shall ensure that all Orders it accepts have the proper information
contained in them for Contractor to be able to comply with all reporting
requirements of this Exhibit A.
e. If Contractor provides for Ordering through an internet-based portal or electronic
catalog, Contractor shall maintain all of Contractor’s necessary hardware,
software, backup-capacity and network connections required to operate that
internet-based portal or electronic catalog.
f. Contractor’s internet-based portal and electronic catalogs shall clearly designate
that they are part of this Participating Addendum and shall have a link to the
State’s designated web location, as determined by the State. Contractor shall
ensure that all Environmentally Preferable Products are clearly listed on internet-
based portal and electronic catalogs.
g. If Contractor provides an internet-based portal or electronic catalog, Contractor
shall also provide paper catalogs or catalogs on other digital media upon request
by a Purchasing Entity.
h. If Contractor’s catalog will be either hosted on or accessed through the State’s
eCommerce system, when available, then Contractor shall comply with all
policies, procedures and directions from the State in relation to hosting its catalog
on or making its catalog accessible through that system. Contractor shall ensure
that all information made available through the State’s eCommerce system is
accurate and complies with this Participating Addendum.
6. PAYMENTS TO CONTRACTOR
A. Payments Under Orders
i. Contractor shall allow the State and Purchasing Entities to use a procurement card or
other credit card to make payments under any Order, in addition to any other payment
procedure available to the State or Purchasing Entity.
ii. The State shall not pay any amount to Contractor under this Participating Addendum
unless the State issues an Order, at which time it shall pay Contractor in accordance
with that Order. The State shall not be responsible for payment under any Order that is
issued by a Purchasing Entity that is not the State, and the Contractor shall seek no
payment or other compensation from the State for any Work performed under any Order
issued by a Purchasing Entity that is not the State.
B. Payment Procedures
i. Invoices
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Contractor shall invoice each Purchasing Entity in accordance with that Purchasing
Entity’s Order. Contractor shall not invoice the State under any Order unless the State
issued that Order. Contractor shall allow 45 days for the State and Purchasing Entities
to pay an invoice following the receipt of the invoice, unless the State or a Purchasing
Entity specifically agrees to a shorter time in an Order. State law and regulations
provide that State payments made within 45 days are not considered delinquent, and
unless otherwise agreed, State Purchasing Entities will pay interest on any unpaid
balance beginning on the 45th day at the rate of 1% per month until paid in full;
provided, however, that interest shall not accrue on unpaid amounts that are the subject
of a good faith dispute regarding the obligation to pay all or a portion of the liability.
Contractor shall invoice State Ordering Entities separately for accrued interest on
delinquent amounts due. The billing shall reference the delinquent payment, the number
of day’s interest to be paid, and the applicable interest rate. (§ 24-30-202(24), C.R.S.,
as amended.)
ii. Payment Disputes
Unless different procedures are specified in an Order, if Contractor disputes any
calculation, determination or amount of any payment, Contractor shall notify the
Purchasing Entity issuing the Order in writing of its dispute within 30 days following
the earlier to occur of Contractor’s receipt of the payment or notification of the
determination or calculation of the payment by that Purchasing Entity. The Purchasing
Entity will review the information presented by Contractor and may make changes to
its determination based on this review. The calculation, determination or payment
amount that results from the Purchasing Entity’s review shall not be subject to
additional dispute under this subsection. No payment subject to a dispute under this
subsection shall be due until after the Purchasing Entity has concluded its review, and
the Purchasing Entity shall not pay any interest on any amount during the period it is
subject to dispute under this subsection.
iii. Available Funds-Contingency-Termination of Order
Purchasing Entities, except for authorized non-profit entities, are prohibited by law
from making commitments beyond the term of the current Purchasing Entity’s Fiscal
Year. Payment to Contractor beyond the current Purchasing Entity’s Fiscal Year is
contingent on the appropriation and continuing availability of Contract Funds in any
subsequent year (See Colorado Special Provision). If federal funds, non-State funds or
funds from any other source constitute all or some of the Contract Funds, the Purchasing
Entity’s obligation to pay Contractor shall be contingent upon such funding continuing
to be made available for payment. Orders under this Participating Addendum shall be
made only from Contract Funds, and the Purchasing Entity’s liability for such payments
shall be limited to the amount remaining of such Contract Funds. If State, federal or
other Purchasing Entity funds are not appropriated, or otherwise become unavailable to
fund an Order under this Participating Addendum, the Purchasing Entity may, upon
written notice, terminate the Order, in whole or in part, without incurring further
liability. The Purchasing Entity shall, however, remain obligated to pay for Services
and Goods that are delivered and accepted prior to the effective date of notice of
termination of Order. A State Purchasing Entity Order termination shall otherwise be
treated as if the Order was terminated in the public interest as described in §3. E. of this
Exhibit A.
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The Purchasing Entity may effect such termination by giving Contractor a written
notice of termination, to the Contractor’s primary contact in accordance with §5 of the
Participating Addendum, and by paying to Contractor any amounts which are due and
have not been paid through the last day of the Fiscal Year for which appropriated funds
are available. The Purchasing Entity shall endeavor to give notice of such termination
not less than 30 days prior to the day of non-availability of funds, and shall notify
Contractor of any anticipated termination.
iv. Discount and Delinquency Period
Any applicable cash discount period or delinquency period for the amounts shown on
an invoice shall begin on the date the Purchasing Entity’s approves of the invoice, or
from the date of receipt of acceptable Goods or Services at the specified destination by
an authorized Purchasing Entity representative, whichever is later.
7. PAYMENTS TO STATE
Administrative Fees
A. Each State Fiscal Year quarter, Contractor shall, using a form as directed by the State,
calculate an Administrative Fee equal to 1% of the total sales made under Orders during that
State Fiscal Year quarter. Contractor shall pay the State the Administrative Fee for each State
Fiscal Year quarter within 45 days following the end of that State Fiscal Year quarter.
B. Contractor shall remit all administrative fees to the State’s primary contact identified in §5
of the Participating Addendum and with the payee as “State of Colorado”.
8. REPORTING – NOTIFICATION
A. Volume Reporting
The State will use a centralized method of tracking volume. Contractor shall provide a
quarterly volume report to the State’s primary contact identified in §5 of this Participating
Addendum within 30 calendar days following the end of the State Fiscal Year quarter that
the report covers. The quarterly volume report shall be submitted in a form as directed by
the State, which may be modified by the State from time to time. The quarterly volume report
shall contain, at a minimum, all of the following:
i. A summary volume report that includes, but is not limited to, all of the following for
the quarter that the report covers:
a. The total spent by each type of Purchasing Entity under this Participating
Addendum.
b. The total of the list price of all items purchased by each type of Purchasing Entity
under this Participating Addendum.
c. The total estimated price savings for each type of Purchasing Entity under this
Participating Addendum, calculated as the total list price of all items purchased
by each type of Purchasing Entity minus the total spent for that type of Purchasing
Entity.
d. The total paid through the use of a procurement card or credit card for each
Purchasing Entity under this Participating Addendum.
e. The total sales of environmentally preferable products, as defined in the State’s
Environmentally Preferable Purchasing Policy, for each Purchasing Entity under
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this Participating Addendum.
f. The amount of the total administrative fee due to the State.
g. Any additional summary information as requested by the State.
ii. A detail report that includes, but is not limited to, all of the following for each sale that
occurred during the quarter that the report covers:
a. The name of the Purchasing Entity who the sale was made to.
b. The date of the sale.
c. A listing of each item purchased in the sale, the quantity of the item, the unit price
for the item, the extended price for the item calculated by multiplying the unit
price by the quantity, the list price per unit for the item, the extended list price for
the item calculated by multiplying the quantity by the list price, and the savings
on the item calculated by subtracting the extended cost from the extended list
price.
d. Any other detail information as requested by the State.
B. Additional Operational Reporting
Upon request by the State, the Contractor shall provide operational reporting that includes all
detailed and summary transaction, historical or payment information related to the State or
any of the Participating Entities as requested by the State. The Contractor shall provide all
such additional reports within 10 Business Days following the State’s request for that
information, unless the State agrees to a longer period of time in writing.
C. Environmentally Preferable Product Reporting
Upon request by the State, the Contractor shall provide detailed reporting on environmentally
preferable products, as defined in the State’s Environmentally Preferable Purchasing Policy,
that are purchased or made available under this Participating Addendum. The scope and
detail of such reports shall be agreed upon by the State and the Contractor. The Contractor
shall provide all such additional reports within 10 Business Days following the State’s request
for that information, unless the State agrees to a longer period of time in writing.
D. Litigation Reporting
If Contractor is served with a pleading or other document in connection with an action before
a court or other administrative decision making body, and such pleading or document relates
to this Participating Addendum or may affect Contractor’s ability to perform its obligations
under this Participating Addendum, Contractor shall, within 10 days after being served, notify
the State of such action and deliver copies of such pleading or document to the State’s primary
contact identified in §5 of the Participating Addendum .
E. Performance Outside the State of Colorado or the United States, §24-102-206, C.R.S.
To the extent not previously disclosed in accordance with §24-102-206, C.R.S., Contractor
shall provide written notice to the State’s primary contact in accordance with §5 of the
Participating Addendum and in a form designated by the State, within 20 days following the
earlier to occur of Contractor’s decision to perform Services outside of the State of Colorado
or the United States, or its execution of an agreement with a Subcontractor to perform
Services outside the State of Colorado or the United States. Such notice shall specify the type
of Services to be performed outside the State of Colorado or the United States and the reason
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why it is necessary or advantageous to perform such Services at such location or locations,
and such notice shall be a public record. Knowing failure by Contractor to provide notice to
the State under this section shall constitute a breach of this Participating Addendum. This
section shall not apply if the Participating Addendum Funds include any federal funds.
9. CONTRACTOR RECORDS
A. Maintenance
Contractor shall maintain a file of all documents, records, communications, notes and other
materials relating to the Work (the “Contractor Records”) performed by the Contractor and
any Subcontractors, that are required to ensure proper performance of that Work. Contractor
shall maintain Contractor Records until the last to occur of: (i) the date 3 years after the date
this Participating Addendum expires or is terminated, (ii) final payment under this
Participating Addendum is made, (iii) the resolution of any pending Contract matters, or (iv)
if an audit is occurring, or Contractor has received notice that an audit is pending, the date
such audit is completed and its findings have been resolved (the “Record Retention Period”).
B. Inspection
Contractor shall permit the State to audit, inspect, examine, excerpt, copy and transcribe
Contractor Records during the Record Retention Period. Contractor shall make Contractor
Records available during normal business hours at Contractor’s office or place of business,
or at other mutually agreed upon times or locations, upon no fewer than 2 Business Days’
notice from the State, unless the State determines that a shorter period of notice, or no notice,
is necessary to protect the interests of the State.
C. Monitoring
The State may monitor Contractor’s performance of its obligations under this Participating
Addendum. The State shall evaluate Contractor’s performance in a manner that does not
unduly interfere with Contractor’s performance of the Work.
D. Final Audit Report
Contractor shall promptly submit to the State a copy of any final audit report of an audit
performed on Contractor’s records that relates to or affects this Participating Addendum or
the Work, whether the audit is conducted by Contractor or a third party.
E. Periodic Business Reviews
i. The State may schedule periodic business reviews to review Contractor’s performance
under this Participating Addendum.
ii. Contractor shall ensure personnel assigned to the Participating Addendum are available
for these meetings with the State as scheduled by the State and Contractor.
iii. Contractor’s primary contact designated in §5 of this the Participating Addendum shall
be available for all regularly scheduled meetings between Contractor and the State,
unless the State has granted prior, written approval otherwise.
10. CONFIDENTIAL INFORMATION-STATE RECORDS
A. Confidentiality
Contractor shall keep confidential, and cause all Subcontractors to keep confidential, all State
Records, unless those State Records are publicly available. Contractor shall not, without prior
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written approval of the State, use, publish, copy, disclose to any third party, or permit the use
by any third party of any State Records, except as otherwise stated in this Participating
Addendum, permitted by law or approved in Writing by the State. Contractor shall provide
for the security of all State Confidential Information in accordance with all policies
promulgated by the Colorado Office of Information Security and all applicable laws, rules,
policies, publications, and guidelines. If Contractor or any of its Subcontractors will or may
receive the following types of data, Contractor or its Subcontractors shall provide for the
security of such data according to the following: (i) the most recently promulgated IRS
Publication 1075 for all Tax Information and in accordance with the Safeguarding
Requirements for Federal Tax Information attached to this Contract as an Exhibit, if
applicable, (ii) the most recently updated PCI Data Security Standard from the PCI Security
Standards Council for all PCI, (iii) the most recently issued version of the U.S. Department
of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Security
Policy for all CJI, and (iv) the federal Health Insurance Portability and Accountability Act
for all PHI and the HIPAA Business Associate Agreement attached to this Contract , if
applicable. Contractor shall immediately forward any request or demand for State Records to
the State’s primary contact as identified in §5 of the Participating Addendum.
B. Other Entity Access and Nondisclosure Agreements
Contractor may provide State Records to its agents, employees, assigns and Subcontractors
as necessary to perform the Work, but shall restrict access to State Confidential Information
to those agents, employees, assigns and Subcontractors who require access to perform their
obligations under this Participating Addendum. Contractor shall ensure all such agents,
employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions
at least as protective as those in this Participating Addendum, and that the nondisclosure
provisions are in force at all times the agent, employee, assign or Subcontractor has access to
any State Confidential Information. Contractor shall provide copies of those signed
nondisclosure provisions to the State upon execution of the nondisclosure provisions.
C. Use, Security, and Retention
Contractor shall use, hold and maintain State Confidential Information in compliance with
any and all applicable laws and regulations in facilities located within the United States, and
shall maintain a secure environment that ensures confidentiality of all State Confidential
Information wherever located. Contractor shall provide the State with access, subject to
Contractor’s reasonable security requirements, for purposes of inspecting and monitoring
access and use of State Confidential Information and evaluating security control
effectiveness. Upon the expiration or termination of this Participating Addendum, Contractor
shall return State Records provided to Contractor or destroy such State Records and certify
to the State that it has done so, as directed by the State. If Contractor is prevented by law or
regulation from returning or destroying State Confidential Information, Contractor warrants
it will guarantee the confidentiality of, and cease to use, such State Confidential Information.
D. Incident Notice and Remediation
If Contractor becomes aware of any Incident, it shall notify the State as soon as possible, and
cooperate with the State regarding recovery, remediation, and the necessity to involve law
enforcement, as determined by the State. Unless Contractor can establish that neither
Contractor nor any of Contractor’s agents, employees, assigns or Subcontractors are the cause
or source of the Incident, Contractor shall be responsible for the cost of notifying each person
who may have been impacted by the Incident. After an Incident, Contractor shall take steps
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to reduce the risk of incurring a similar type of Incident in the future as directed by the State,
which may include, but is not limited to, developing and implementing a remediation plan
that is approved by the State at no additional cost to the State. The State may, in its sole
discretion and at Contractor’s sole expense, require Contractor to engage the services of an
independent, qualified, State-approved third party to conduct a security audit. Contractor
shall provide the State with the redacted version of results of such audit and evidence of
Contractor’s planned remediation in response to any negative findings, redacting
Contractor’s confidential restricted information, to the extent there is any such confidential,
restricted information included in the audit results.
E. Data Protection and Handling
Contractor shall ensure that all State Records and Work Product in the possession of
Contractor or any Subcontractors are protected and handled in accordance with the
requirements of this Contract, including the requirements of any Exhibits hereto, at all times.
F. Safeguarding PII
If Contractor or any of its Subcontractors will or may receive PII under this Contract,
Contractor shall provide for the security of such PII, in a manner and form acceptable to the
State, including, without limitation, State non-disclosure requirements, use of appropriate
technology, security practices, computer access security, data access security, data storage
encryption, data transmission encryption, security inspections, and audits. Contractor shall
be a “Third-Party Service Provider” as defined in §24-73-103(1)(i), C.R.S. and shall maintain
security procedures and practices consistent with §§24-73-101 et seq., C.R.S.
11. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
Contractor shall not engage in any business or activities, or maintain any relationships that
conflict in any way with the full performance of the obligations of Contractor under this
Participating Addendum. Such a conflict of interest would arise when a Contractor or
Subcontractor’s employee, officer or agent were to offer or provide any tangible personal
benefit to an employee of the State, or any member of his or her immediate family or his or
her partner, related to the award of, entry into or management or oversight of this
Participating Addendum.
B. Apparent Conflicts of Interest
Contractor acknowledges that, with respect to this Participating Addendum, even the
appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s
prior written approval, Contractor shall refrain from any practices, activities or relationships
that reasonably appear to be in conflict with the full performance of Contractor’s obligations
under this Participating Addendum.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises, or if Contractor is uncertain whether a
conflict or the appearance of a conflict has arisen, Contractor shall submit to the State a
disclosure statement setting forth the relevant details for the State’s consideration. Failure to
promptly submit a disclosure statement or to follow the State’s direction in regard to the
actual or apparent conflict constitutes a breach of this Participating Addendum.
12. INSURANCE
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Contractor shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain,
insurance as specified in this section at all times during the term of this Participating Addendum
and until all orders for goods or Services or both have been delivered and accepted, regardless of
whether this Participating Addendum has expired or has been terminated. All insurance policies
required by this Participating Addendum shall be issued by insurance companies as approved by
the State.
A. Workers’ Compensation
Workers’ Compensation insurance as required by state statute, and employers’ liability
insurance covering all Contractor or Subcontractor employees acting within the course and
scope of their employment. Insurance must stay in place and in effect even if the contract
terms expires, until all product or terms of the contract are completed and satisfied up to 120
days after contract term expires.
B. General Liability
Commercial general liability insurance covering premises operations, fire damage,
independent contractors, products and completed operations, blanket contractual liability,
personal injury, and advertising liability with limits as follows:
i. $1,000,000 each occurrence;
ii. $2,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
iv. $50,000 any 1 fire.
C. Automobile Liability
Automobile liability insurance covering any auto (including owned, hired and non-owned
autos) with a limit of $1,000,000 each accident combined single limit.
D. Professional Liability including Cyber/Network Security and Privacy Liability
Liability insurance covering civil, regulatory, and statutory damages, contractual damages,
data breach management exposure, and any loss of income or extra expense as a result of
actual or alleged breach, violation or infringement of right to privacy, consumer data
protection law, confidentiality or other legal protection for personal information, as well as
State Confidential Information with limits as follows:
i. $3,000,000 each claim; and
ii. $6,000,000 general aggregate.
E. Professional liability insurance shall also include coverage for Protected Information
Liability insurance covering all loss of State Confidential Information, such as PII, PCI, PHI,
Tax Information, and CJI, and claims based on alleged violations of privacy rights through
improper use or disclosure of protected information.
F. Professional Liability Insurance
Professional liability insurance covering any damages caused by an error, omission or any
negligent act.
G. Crime Insurance
Crime insurance including employee dishonesty coverage with limits as follows:
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i. $1,000,000 each claim; and
ii. $1,000,000 general aggregate.
H. Additional Insured
The State shall be included as additional insured on required commercial general liability
policies (leases and construction contracts require additional insured coverage for completed
operations) required of Contractor and Subcontractors.
I. Primacy of Coverage
Coverage required of Contractor and each Subcontractor shall be primary and
noncontributory over any insurance or self-insurance program carried by Contractor or the
State.
J. Cancellation
The above insurance policies shall include provisions preventing cancellation or non-
renewal, except for cancellation based on non-payment of premiums, without at least 30 days
prior notice to Contractor and Contractor shall forward such notice to the State in accordance
with §5 of the Participating Addendum within 7 days of Contractor’s receipt of such notice.
K. Subrogation Waiver
All insurance policies except those secured or maintained by Contractor or its Subcontractors
in relation to this Participating Addendum shall include clauses stating that each carrier shall
waive all rights of recovery under subrogation or otherwise against Contractor or the State,
its agencies, institutions, organizations, officers, agents, employees, and volunteers.
L. Public Entities
If Contractor is a "public entity" within the meaning of the Colorado Governmental Immunity
Act, §§24-10-101, et seq., C.R.S. (the “GIA”), Contractor shall maintain, in lieu of the
liability insurance requirements stated above, at all times during the term of this Participating
Addendum such liability insurance, by commercial policy or self-insurance, as is necessary
to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning
of the GIA, Contractor shall ensure that the Subcontractor maintain at all times during the
terms of this Participating Addendum, in lieu of the liability insurance requirements stated
above, such liability insurance, by commercial policy or self-insurance, as is necessary to
meet the Subcontractor’s obligations under the GIA.
M. Certificates
Contractor shall provide to the State certificates evidencing Contractor’s insurance coverage
required in this Participating Addendum within 7 Business Days following the Effective
Date. Contractor shall provide to the State certificates evidencing Subcontractor insurance
coverage within 7 Business Days following the Effective Date, except that, if Contractor’s
subcontract is not in effect as of the Effective Date, Contractor shall provide to the State
certificates showing Subcontractor insurance coverage within 7 Business Days following
Contractor’s execution of the subcontract. Before the expiration date of Contractor’s or any
Subcontractor’s coverage, Contractor shall deliver to the State certificates of insurance
evidencing renewals of coverage. At renewal time during the term of this Participating
Addendum, upon request by the State, Contractor shall, within 7 Business Days following
the request by the State, supply to the State evidence satisfactory to the State of compliance
with the provisions of this §12.
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13. BREACH OF CONTRACT
In the event of a Breach of Contract, the aggrieved Party shall give written notice of breach
to the other Party. If the notified Party does not cure the Breach of Contract, at its sole
expense, within 30 days after the delivery of written notice, the Party may exercise any of the
remedies as described in §14 for that Party. Notwithstanding any provision of this
Participating Addendum to the contrary, the State, in its discretion in order to protect the
public interest of the State (such circumstances including, but not limited to, where the State
Governor issues an executive order or the State Legislature passes a law that could impact
the public interest as it relates to this Participating Addendum) need not provide notice or a
cure period and may immediately terminate this Participating Addendum in whole or in part
or institute any other remedy in this Participating Addendum; or if Contractor is debarred or
suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or
cure period and may terminate this Contract in whole or in part or institute any other remedy
in this Contract as of the date that the debarment or suspension takes effect.
14. REMEDIES
A. State’s Remedies
If Contractor is in breach under any provision of this Participating Addendum and fails to
cure such breach, the State, following the notice and cure period set forth in §13, shall have
all of the remedies listed in this section in addition to all other remedies set forth in this
Participating Addendum or at law. The State may exercise any or all of the remedies available
to it, in its discretion, concurrently or consecutively.
i. Termination for Breach
In the event of Contractor’s uncured breach, the State may terminate this entire
Participating Addendum or any part of this Participating Addendum. Contractor shall
continue performance of this Participating Addendum to the extent not terminated, if
any.
If after termination by the State, the State agrees that Contractor was not in breach or
that Contractor's action or inaction was excusable, such termination shall be treated as
a termination in the public interest, and the rights and obligations of the Parties shall be
as if this Participating Addendum had been terminated in the public interest under §3.
E.
ii. Remedies Not Involving Termination
The State, in its discretion, may exercise one or more of the following additional
remedies:
a. Suspend Performance
Suspend Contractor’s performance with respect to all or any portion of the Work
pending corrective action as specified by the State without entitling Contractor to
an adjustment in price or cost or an adjustment in the performance schedule.
Contractor shall promptly cease performing Work and incurring costs in
accordance with the State’s directive, and neither the State nor any Purchasing
Entity shall be liable for costs incurred by Contractor after the suspension of
performance; however, Purchasing Entity is still liable for cost of Goods and
Services provided up until date of suspension.
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b. Removal
Demand immediate removal of any of Contractor’s employees, agents, or
Subcontractors from the Work whom the State deems incompetent, careless,
insubordinate, unsuitable, or otherwise unacceptable or whose continued relation
to this Participating Addendum is deemed by the State to be contrary to the public
interest or the State’s best interest.
c. Intellectual Property
Contractor shall, indemnify and defend the State against any third-party claim
alleging that a Contractor-developed or manufactured product or Service directly
infringes a United States patent or copyright (“Infringement Claim”), and
Contractor shall pay all damages finally awarded against the State by a court of
competent jurisdiction for an Infringement Claim, and at its option: (i) secure that
right to use such Work for the State, Purchasing Entity and Contractor; (ii) replace
the Work with non infringing Work or modify the Work so that it becomes
noninfringing; or, (iii) remove any infringing Work and grant the State a reo-rated
refund any amounts pre-paid for the infringing product if it is a software product,
or a credit if the product is equipment
Contractor’s duties under this section are conditioned upon (a) the State promptly
notifying Contractor in writing of the Infringement Claim; (b) Contractor having
primary control over the defense of the suit and all negotiations for its settlement
or compromise, and (c) the State cooperating with Contactor and if requested by
Contractor, providing reasonable assistance in the defense of the Infringement
Claim.
This Section provides the State’s sole and exclusive remedy and Contactor’s
entire liability in the event of an Infringement Claim.
B. Contractor’s Remedies
If the State is in breach of any provision of this Participating Addendum and does not cure
such breach, Contractor, following the notice and cure period in §13 and the dispute
resolution process in §15 shall have all remedies available at law and equity. If a Purchasing
Entity is in breach of a provision of an Order, Contractor shall have all remedies available to
it under that Order and available at law and equity.
C. Purchasing Entity’s Remedies
i. If Contractor is in breach under any provision of an Order by a Purchasing Entity, the
Purchasing Entity shall have all of the remedies listed in that Order, all remedies listed
in §14. A. ii above, all remedies listed here in §14.C and all other remedies available
by law or equity. The Purchasing Entity may exercise any or all of the remedies
available to it, in its discretion, concurrently or consecutively.
ii. If a Purchasing Entity gives Contractor notice of breach or terminates an Order because
of Contractor’s breach of that Order, Contractor shall provide notice to the State of that
breach or termination within 30 Business Days following Contractor’s receipt of that
notice of breach or termination.
iii. Payments and Damages
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a. Notwithstanding anything to the contrary, Purchasing Entities shall only pay
Contractor for accepted Work received as of the date of termination. Subject to
the provisions of Section 14 and 15, a Purchasing Entity may withhold any
amount that may be due Contractor as the Purchasing Entity deems necessary until
Contractor corrects its Work or to protect itself against loss including, without
limitation, loss as a result of outstanding liens and costs incurred by the
Purchasing Entity in procuring from third parties replacement Work as cover.
b. Notwithstanding any other remedial action by the State, Contractor shall remain
liable to the State or appropriate Purchasing Entity for any damages sustained by
the State or Purchasing Entity in connection with any breach by Contractor, and
the Purchasing Entity may withhold payment to Contractor for the purpose of
mitigating the Purchasing Entity’s damages.
A Purchasing Entity may deny payment to Contractor for Work not performed, or that
due to Contractor’s actions or inactions, cannot be performed or if they were performed
are reasonably of no value to the state; provided, that any denial of payment shall be
equal to the value of the obligations not performed.
15. DISPUTE RESOLUTION
A. Order Disputes, Termination and Resolution
i. If a dispute related to an Order arises between Contractor and a Purchasing Entity,
Contractor shall meet with the Purchasing Entity to attempt to resolve the issue. If
Contractor is unable to resolve the issue with the Purchasing Entity, then Contractor
may request assistance from the State by submitting a request in writing, which includes
the pertinent information about the dispute and the assistance sought by Contractor, in
accordance with §5 of the Participating Addendum. Nothing in this section shall be
interpreted as limiting the rights or obligations of Contractor, the State or any
Purchasing Entity under this Contract of any Order.
ii. A Purchasing Entity may terminate an Order if it determines that Contractor was in
breach of that Order. Termination of an Order shall not terminate any other Order or
this Participating Addendum. Termination of an Order does not relieve the Purchasing
Entity of obligation for payment of Goods and Services delivered by the Contractor.
iii. If a Purchasing Entity gives Contractor notice of breach or terminates an Order because
of Contractor’s breach of that Order, Contractor shall provide notice to the State of that
breach or termination within 30 Business Days following Contractor’s receipt of that
notice of breach or termination.
B. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of this
Participating Addendum which cannot be resolved by the designated Participating
Addendum primary contacts, as identified in §5 of the Participating Addendum, or through a
dispute on an Order shall be referred in writing to a senior departmental management staff
member designated by the State and a senior manager designated by Contractor for
resolution.
C. Resolution of Controversies arising under this Participating Addendum
If the initial resolution described in §15.B. fails to resolve the dispute within thirty (30)
Business Days, Contractor shall submit any alleged breach of this Participating Addendum
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by the State to the Procurement Official of the State Purchasing and Contracts Office as described
in in §24-102-202(3), C.R.S. for resolution in accordance with the provisions of §§24-109-
101.1 through 24-109-505, C.R.S., (the “Resolution Statutes”), except that if Contractor
wishes to challenge any decision rendered by the Procurement Official, Contractor’s
challenge shall be an appeal to the Executive Director of the Department of Personnel and
Administration, or their delegate, under the Resolution Statutes before Contractor pursues
any further action as permitted by such statutes. Except as otherwise stated in this Section,
all requirements of the Resolution Statutes shall apply including, without limitation, time
limitations.
16. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
Contractor assigns to the Purchasing Entity and its successors and assigns, the entire right,
title, and interest in and to all causes of action, either in law or in equity, for past, present, or
future infringement of intellectual property rights related to the Work Product and all works
based on, derived from, or incorporating the Work Product under an Order. Whether or not
Contractor is under contract with the State at the time, Contractor shall execute applications,
assignments, and other documents, and shall render all other reasonable assistance requested
by the State, to enable the Purchasing Entity to secure patents, copyrights, licenses and other
intellectual property rights related to the Work Product. To the extent that Work Product
would fall under the definition of “works made for hire” under 17 U.S.C.S. §101, the parties
intend the Work Product to be a work made for hire.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Participating Addendum, any pre-
existing State Records, State software, research, reports, studies, photographs, negatives or
other documents, drawings, models, materials, data and information shall be the exclusive
property of the State (collectively, “State Materials”). Contractor shall not use, willingly
allow, cause or permit Work Product or State Materials to be used for any purpose other than
the performance of Contractor’s obligations in this Participating Addendum without the prior
written consent of the State. Upon termination of this Participating Addendum for any
reason, Contractor shall provide all Work Product and State Materials to the State in a form
and manner as directed by the State.
C. Exclusive Property of Contractor
Contractor retains the exclusive rights, title, and ownership to any and all pre-existing
materials owned or licensed to Contractor including, but not limited to, all pre-existing
software, licensed products, associated source code, machine code, text images, audio and/or
video, and third-party materials, delivered by Contractor under the Contract, whether
incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Contractor
Property”). Contractor Property shall be licensed to the State as set forth in this Contract or a
State approved license agreement: (i) entered into as exhibits to this Contract; (ii) obtained
by the State from the applicable third-party vendor; or (iii) in the case of open source
software, the license terms set forth in the applicable open source license agreement.
17. OBLIGATIONS AND RIGHTS IN THE EVENT OF TERMINATION OF ORDER OR
CONTRACT
To the extent specified in any termination notice, Contractor shall not incur further
obligations or render further performance past the effective date of such notice, and shall
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terminate outstanding orders and subcontracts with third parties. However, Contractor shall
complete and deliver to Purchasing Entities all Work not cancelled by the termination notice,
and may incur obligations as necessary to do so within this Participating Addendum’s terms.
At the request of the State, Contractor shall assign to the appropriate Purchasing Entity all of
Contractor's rights, title, and interest in and to such terminated orders or subcontracts. Upon
termination, Contractor shall take timely, reasonable and necessary action to protect and
preserve property in the possession of Contractor in which the appropriate Purchasing Entity
has an interest. At the State or Purchasing Entity’s request, Contractor shall return materials
owned by the Purchasing Entity that Contractor possesses at the time of any termination.
Contractor shall deliver all completed Work Product to the appropriate Purchasing Entity at
the State or Purchasing Entity’s request.
18. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to Contractor under this Contract is $100,000 or greater, either
on the Effective Date or at any time thereafter, this section shall apply. Contractor agrees to be
governed by and comply with the provisions of §§24-102-206, 24-106-103, 24-106-106, and 24-
106-107, C.R.S. regarding the monitoring of vendor performance and the reporting of contract
information in the State’s contract management system (“Contract Management System” or
“CMS”). Contractor’s performance shall be subject to evaluation and review in accordance with
the terms and conditions of this Contract, Colorado statutes governing CMS, and State Fiscal Rules
and State Controller policies.
19. GENERAL PROVISIONS
A. Assignment
Contractor’s rights and obligations under this Participating Addendum are personal and may
not be transferred or assigned without the prior, written consent of the State. Any attempt at
assignment or transfer without such consent shall be void. Any assignment or transfer of
Contractor’s rights and obligations approved by the State shall be subject to the provisions of
this Participating Addendum.
B. Subcontracts
The Contractor shall provide the State with a list of all subcontractors providing services
pursuant to this Participating Addendum. All subcontracts entered into by Contractor in
connection with this Participating Addendum shall comply with all applicable federal and
state laws and regulations, shall provide that they are governed by the laws of the State of
Colorado, and shall be subject to all provisions of this Participating Addendum.
C. Binding Effect
Except as otherwise provided in §19.A., all provisions of this Participating Addendum,
including the benefits and burdens, shall extend to and be binding upon the Parties’ respective
successors and assigns.
D. Authority
Each Party represents and warrants to the other that the execution and delivery of this
Participating Addendum and the performance of such Party’s obligations have been duly
authorized.
E. Captions and References
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The captions and headings in this Participating Addendum are for convenience of reference
only, and shall not be used to interpret, define, or limit its provisions. All references in this
Participating Addendum to sections (whether spelled out or using the § symbol), subsections,
exhibits or other attachments, are references to sections, subsections, exhibits or other
attachments contained herein or incorporated as a part hereof, unless otherwise noted.
F. Counterparts
This Participating Addendum may be executed in multiple, identical, original counterparts,
each of which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
G. Entire Understanding
This Participating Addendum represents the complete integration of all understandings
between the Parties related to the Work, and all prior representations and understandings
related to the Work, oral or written, are merged into this Participating Addendum. Prior or
contemporaneous additions, deletions, or other changes to this Participating Addendum shall
not have any force or effect whatsoever, unless embodied herein.
H. Digital Signatures
If any signatory signs this agreement using a digital signature in accordance with the
Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of
digital signatures issued under the State Fiscal Rules, then any agreement or consent to use
digital signatures within the electronic system through which that signatory signed shall be
incorporated into this Contract by reference.
I. Modification
Except as otherwise provided in this Participating Addendum, any modification to this
Participating Addendum shall only be effective if agreed to in a formal amendment to this
Participating Addendum, properly executed and approved in accordance with applicable
Colorado State law and State Fiscal Rules. Modifications permitted under this Participating
Addendum, other than contract amendments, shall conform to the policies issued by the
Colorado State Controller.
J. Statutes, Regulations, Fiscal Rules, and Other Authority.
Any reference in this Participating Addendum to a statute, regulation, State Fiscal Rule, fiscal
policy or other authority shall be interpreted to refer to such authority then current, as may
have been changed or amended since the Effective Date of this Participating Addendum.
K. Severability
The invalidity or unenforceability of any provision of this Participating Addendum shall not
affect the validity or enforceability of any other provision of this Participating Addendum,
which shall remain in full force and effect, provided that the Parties can continue to perform
their obligations under this Participating Addendum in accordance with the intent of this
Participating Addendum.
L. Survival of Certain Contract Terms
Any provision of this Participating Addendum that imposes an obligation on the Contractor
or a Purchasing Entity after termination or expiration of this Participating Addendum shall
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survive the termination or expiration of this Participating Addendum and shall be enforceable
by the other Party.
M. Taxes
The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle
D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from
State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S.
(Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be
liable for the payment of any excise, sales, or use taxes, regardless of whether any political
subdivision of the State imposes such taxes on Contractor. Contractor shall be solely
responsible for any exemptions from the collection of excise, sales or use taxes that
Contractor may wish to have in place in connection with this Participating Addendum.
Contractor shall honor any tax exemption that any Purchasing Entity has, and shall not charge
any Purchasing Entity any excise, sales, or use taxes from which that Purchasing Entity is
exempt.
N. Third Party Beneficiaries
Except for a Purchasing Entity and/or the Parties’ respective successors and assigns described
in §19.A, this Participating Addendum does not and is not intended to confer any rights or
remedies upon any person or entity other than the Parties. Enforcement of this Participating
Addendum and all rights and obligations hereunder are reserved solely to the Parties. Any
services or benefits which third parties receive as a result of this Participating Addendum are
incidental to this Participating Addendum, and do not create any rights for such third parties.
O. Waiver
A Party’s failure or delay in exercising any right, power, or privilege under this Participating
Addendum, whether explicit or by lack of enforcement, shall not operate as a waiver, nor
shall any single or partial exercise of any right, power, or privilege preclude any other or
further exercise of such right, power, or privilege.
P. CORA Disclosure
To the extent not prohibited by federal law, this Participating Addendum and the performance
measures and standards required under §24-106-107, C.R.S., if any, are subject to public
release through the CORA.
Q. Standard and Manner of Performance
Contractor shall perform its obligations under this Participating Addendum in accordance
with the highest standards of care, skill and diligence in Contractor’s industry, trade, or
profession.
R. Licenses, Permits, and Other Authorizations.
Contractor shall secure, prior to the Effective Date, and maintain at all times during the term
of this Participating Addendum, at its sole expense, all licenses, certifications, permits, and
other authorizations required to perform its obligations under this Participating Addendum,
and shall ensure that all employees, agents and Subcontractors secure and maintain at all
times during the term of their employment, agency or subcontract, all license, certifications,
permits and other authorizations required to perform their obligations in relation to this
Participating Addendum.
S. Indemnification
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i. General Indemnification
Contractor shall indemnify, save, and hold harmless the State, its employees, agents
and assignees (the “Indemnified Parties”), against any and all costs, expenses, claims,
damages, liabilities, court awards and other amounts (including attorneys’ fees and
related costs) arising from actual third-party claim, demand, action or proceeding
(“Claim”) incurred by any of the Indemnified Parties in relation to any negligent, gross
negligence or willful misconduct by Contractor, or its employees, agents,
Subcontractors, or assignees in connection with its performance of duties in this
Participating Addendum. Contractor’s duties under this Section are conditioned upon:
(a) the State promptly notifying Contractor in writing of the Claim; (b) Contractor
having sole control of the defense of the suit and all negotiations for its settlement or
compromise; and (c) the State cooperating with Contractor and, if requested by
Contractor, providing reasonable assistance in the defense of the Claim.
ii. Confidential Information Indemnification
Disclosure or use of State Confidential Information by Contractor in violation of §10
may be cause for legal action by third parties against Contractor, the State, or their
respective agents. Contractor shall indemnify, save, and hold harmless the Indemnified
Parties, against any and all claims, damages, liabilities, losses, costs, expenses
(including attorneys’ fees and costs) arising from actual third-party claim, demand,
action or proceeding incurred by the State in relation to any negligent, gross negligence
act or omission or willful misconduct by Contractor, or its employees, agents, assigns,
or Subcontractors in violation of §10.
20. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in italics.
A. STATUTORY APPROVAL. §24-30-202(1), C.R.S.
This Contract shall not be valid until it has been approved by the Colorado State Controller
or designee. If this Contract is for a Major Information Technology Project, as defined in
§24-37.5-102(2.6), then this Contract shall not be valid until it has been approved by the
State’s Chief Information Officer or designee.
B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S.
Financial obligations of the State payable after the current State Fiscal Year are contingent
upon funds for that purpose being appropriated, budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of the State,
its departments, boards, commissions committees, bureaus, offices, employees and officials
shall be controlled and limited by the provisions of the Colorado Governmental Immunity
Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and
28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S.
No term or condition of this Contract shall be construed or interpreted as a waiver, express
or implied, of any of the immunities, rights, benefits, protections, or other provisions,
contained in these statutes.
D. INDEPENDENT CONTRACTOR
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Contractor shall perform its duties hereunder as an independent contractor and not as an
employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to
be an agent or employee of the State. Contractor shall not have authorization, express or
implied, to bind the State to any agreement, liability or understanding, except as expressly
set forth herein. Contractor and its employees and agents are not entitled to unemployment
insurance or workers compensation benefits through the State and the State shall not pay for
or otherwise provide such coverage for Contractor or any of its agents or employees.
Contractor shall pay when due all applicable employment taxes, income taxes and local head
taxes incurred pursuant to this Contract. Contractor shall (i) provide and keep in force
workers' compensation and unemployment compensation insurance in the amounts required
by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible
for its acts and those of its employees and agents.
E. COMPLIANCE WITH LAW.
Contractor shall comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to
discrimination and unfair employment practices.
F. CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the
interpretation, execution, and enforcement of this Contract. Any provision included or
incorporated herein by reference which conflicts with said laws, rules, and regulations shall
be null and void. All suits or actions related to this Contract shall be filed and proceedings
held in the State of Colorado and exclusive venue shall be in the City and County of Denver.
G. PROHIBITED TERMS.
Any term included in this Contract that requires the State to indemnify or hold Contractor
harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for
damages resulting from death, bodily injury, or damage to tangible property; or that conflicts
with this provision in any way shall be void ab initio. Nothing in this Contract shall be
construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this
Contract that limits Contractor’s liability that is not void under this section shall apply only
in excess of any insurance to be maintained under this Contract, and no insurance policy shall
be interpreted as being subject to any limitations of liability of this Contract.
H. SOFTWARE PIRACY PROHIBITION.
State or other public funds payable under this Contract shall not be used for the acquisition,
operation, or maintenance of computer software in violation of federal copyright laws or
applicable licensing restrictions. Contractor hereby certifies and warrants that, during the
term of this Contract and any extensions, Contractor has and shall maintain in place
appropriate systems and controls to prevent such improper use of public funds. If the State
determines that Contractor is in violation of this provision, the State may exercise any remedy
available at law or in equity or under this Contract, including, without limitation, immediate
termination of this Contract and any remedy consistent with federal copyright laws or
applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and
24-50-507, C.R.S.
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The signatories aver that to their knowledge, no employee of the State has any personal or
beneficial interest whatsoever in the service or property described in this Contract. Contractor
has no interest and shall not acquire any interest, direct or indirect, that would conflict in any
manner or degree with the performance of Contractor’s services and Contractor shall not
employ any person having such known interests.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-
202.4, C.R.S.
[Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the
State Controller may withhold payment under the State’s vendor offset intercept system for
debts owed to State agencies for: (i) unpaid child support debts or child support arrearages;
(ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et
seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher
Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and
(v) other unpaid debts owing to the State as a result of final agency determination or judicial
action. The State may also recover, at the State’s discretion, payments made to Contractor
in error for any reason, including, but not limited to, overpayments or improper payments,
and unexpended or excess funds received by Contractor by deduction from subsequent
payments under this Contract, deduction from any payment due under any other contracts,
grants or agreements between the State and Contractor, or by any other appropriate method
for collecting debts owed to the State.
K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S.
[Not applicable to agreements relating to the offer, issuance, or sale of securities,
investment advisory services or fund management services, sponsored projects,
intergovernmental agreements, or information technology services or products and
services] Contractor certifies, warrants, and agrees that it does not knowingly employ or
contract with an illegal alien who will perform work under this Contract and will confirm the
employment eligibility of all employees who are newly hired for employment in the United
States to perform work under this Contract, through participation in the E-Verify Program or
the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Contractor
shall not knowingly employ or contract with an illegal alien to perform work under this
Contract or enter into a contract with a Subcontractor that fails to certify to Contractor that
the Subcontractor shall not knowingly employ or contract with an illegal alien to perform
work under this Contract. Contractor (i) shall not use E-Verify Program or the program
procedures of the Colorado Department of Labor and Employment (“Department Program”)
to undertake pre-employment screening of job applicants while this Contract is being
performed, (ii) shall notify the Subcontractor and the contracting State agency or institution
of higher education within 3 days if Contractor has actual knowledge that a Subcontractor is
employing or contracting with an illegal alien for work under this Contract, (iii) shall
terminate the subcontract if a Subcontractor does not stop employing or contracting with the
illegal alien within 3 days of receiving the notice, and (iv) shall comply with reasonable
requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5),
C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in
the Department program, Contractor shall deliver to the contracting State agency, Institution
of Higher Education or political subdivision, a written, notarized affirmation, affirming that
Contractor has examined the legal work status of such employee, and shall comply with all
of the other requirements of the Department program. If Contractor fails to comply with any
requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency,
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institution of higher education or political subdivision may terminate this Contract for breach
and, if so terminated, Contractor shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S.
Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms
under penalty of perjury that Contractor (i) is a citizen or otherwise lawfully present in the
United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101,
et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103,
C.R.S. prior to the Effective Date of this Contract.
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Exhibit B Page 1
EXHIBIT B STATEMENT OF WORK
1. GOODS AND/OR SERVICES
For a description of what the Participating Addendum will provide, see Attachment of the Master
Agreement 00318, “Cost sheet”
2. OTHER PROJECT REQUIREMENTS
A. Delivery of Goods and Performance of Services
i. Contractor shall provide all Goods and perform all Services described in each Order.
ii. Unless specifically agreed to otherwise in an Order, Contractor shall deliver all Goods
under an Order in good, working and undamaged condition. All Goods shall be free on
board (“F.O.B.”) destination to the location specified in the Order.
iii. If a good in an Order is out of stock, Contractor may only provide a substitute good if
it has notified the Purchasing Entity for that Order, in writing, that the good is out of
stock and has received the Purchasing Entity’s approval to provide the substitute good.
Purchasing Entities may request additional information comparing the substitute good
with the original good in the Purchasing Entity’s sole discretion.
B. Additional Terms
Any additional terms and conditions on any invoice, statement, Contractor time sheet,
website, electronic license or use agreement or any other form, including, without limitation,
terms regarding indemnification, limitation of liability, cancellation fees, choice of law and
binding arbitration shall be void and unenforceable except to the extent that they are
specifically included in this Participating Addendum or an Order. The signature of any
employee of a Purchasing Entity on any such form shall be effective to establish receipt of
Goods or completion of Services and shall not make any term of that form enforceable.
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Exhibit C Page 1
EXHIBIT C PRODUCTS AND PRICE LIST
1. Contractor has been awarded the following categories:
PUBLIC SAFETY COMMUNICATIONS PRODUCTS, SERVICES, AND SOLUTIONS
2. The products and price list is located on the Contractor’s dedicated State website, hosted and
maintained by the Contractor, and is incorporated into this Participating Addendum by reference.
Changes in product and pricing must be approved by the lead state and shall be effective when
published on the dedicated state website.
.
A. Price Decreases and Ceiling Prices
The prices listed in this Exhibit C are Ceiling Prices, Contractor may offer lower prices to
Purchasing Entities, and Purchasing Entities may negotiate lower prices with Contractor,
without the review or approval of the State. Contractor shall not allow a Subcontractor to
charge an amount greater than the Ceiling Price for any Order.
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EXHIBIT D – HIPAA BUSINESS ASSOCIATE AGREEMENT
This HIPAA Business Associate Agreement (“Agreement”) between the State and Contractor is agreed to in
connection with, and as an exhibit to, the Contract. For purposes of this Agreement, the State is referred to as
“Covered Entity” and the Contractor is referred to as “Business Associate”. Unless the context clearly requires a
distinction between the Contract and this Agreement, all references to “Contract” shall include this Agreement.
1. Purpose
Covered Entity wishes to disclose information to Business Associate, which may include Protected Health
Information ("PHI"). The Parties intend to protect the privacy and security of the disclosed PHI in compliance
with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191 (1996) as
amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) enacted
under the American Recovery and Reinvestment Act of 2009 (“ARRA”) Pub. L. No. 111–5 (2009), implementing
regulations promulgated by the U.S. Department of Health and Human Services at 45 C.F.R. Parts 160, 162 and
164 (the “HIPAA Rules”) and other applicable laws, as amended. Prior to the disclosure of PHI, Covered Entity
is required to enter into an agreement with Business Associate containing specific requirements as set forth in, but
not limited to, Title 45, Sections 160.103, 164.502(e) and 164.504(e) of the Code of Federal Regulations
(“C.F.R.”) and all other applicable laws and regulations, all as may be amended.
2. Definitions
The following terms used in this Agreement shall have the same meanings as in the HIPAA Rules: Breach, Data
Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary,
Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident,
Subcontractor, Unsecured Protected Health Information, and Use.
The following terms used in this Agreement shall have the meanings set forth below:
a. Business Associate. “Business Associate” shall have the same meaning as the term “business
associate” at 45 C.F.R. 160.103, and shall refer to Contractor.
b. Covered Entity. “Covered Entity” shall have the same meaning as the term “covered entity” at 45
C.F.R. 160.103, and shall refer to the State.
c. Information Technology and Information Security. “Information Technology” and “Information
Security” shall have the same meanings as the terms “information technology” and “information
security”, respectively, in §24-37.5-102, C.R.S.
Capitalized terms used herein and not otherwise defined herein or in the HIPAA Rules shall have the meanings
ascribed to them in the Contract.
3. Obligations and Activities of Business Associate
d. Permitted Uses and Disclosures.
i. Business Associate shall use and disclose PHI only to accomplish Business Associate’s
obligations under the Contract.
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ii. To the extent Business Associate carries out one or more of Covered Entity’s obligations
under Subpart E of 45 C.F.R. Part 164, Business Associate shall comply with any and all
requirements of Subpart E that apply to Covered Entity in the performance of such obligation.
iii. Business Associate may disclose PHI to carry out the legal responsibilities of Business
Associate, provided, that the disclosure is Required by Law or Business Associate obtains
reasonable assurances from the person to whom the information is disclosed that:
A. the information will remain confidential and will be used or disclosed only as
Required by Law or for the purpose for which Business Associate originally
disclosed the information to that person, and;
B. the person notifies Business Associate of any Breach involving PHI of which it is
aware.
iv. Business Associate may provide Data Aggregation services relating to the Health Care
Operations of Covered Entity. Business Associate may de-identify any or all PHI created or
received by Business Associate under this Agreement, provided the de-identification
conforms to the requirements of the HIPAA Rules.
e. Minimum Necessary. Business Associate, its Subcontractors and agents, shall access, use, and
disclose only the minimum amount of PHI necessary to accomplish the objectives of the Contract, in
accordance with the Minimum Necessary Requirements of the HIPAA Rules including, but not
limited to, 45 C.F.R. 164.502(b) and 164.514(d).
f. Impermissible Uses and Disclosures.
i. Business Associate shall not disclose the PHI of Covered Entity to another covered entity
without the written authorization of Covered Entity.
ii. Business Associate shall not share, use, disclose or make available any Covered Entity PHI
in any form via any medium with or to any person or entity beyond the boundaries or
jurisdiction of the United States without express written authorization from Covered Entity.
g. Business Associate's Subcontractors.
i. Business Associate shall, in accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2),
ensure that any Subcontractors who create, receive, maintain, or transmit PHI on behalf of
Business Associate agree in writing to the same restrictions, conditions, and requirements
that apply to Business Associate with respect to safeguarding PHI.
ii. Business Associate shall provide to Covered Entity, on Covered Entity’s request, a list of
Subcontractors who have entered into any such agreement with Business Associate.
iii. Business Associate shall provide to Covered Entity, on Covered Entity’s request, copies of
any such agreements Business Associate has entered into with Subcontractors.
h. Access to System. If Business Associate needs access to a Covered Entity Information Technology
system to comply with its obligations under the Contract or this Agreement, Business Associate shall
request, review, and comply with any and all policies applicable to Covered Entity regarding such
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system including, but not limited to, any policies promulgated by the Office of Information
Technology and available at http://oit.state.co.us/about/policies.
i. Access to PHI. Business Associate shall, within ten days of receiving a written request from Covered
Entity, make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy
Covered Entity’s obligations under 45 C.F.R. 164.524.
j. Amendment of PHI.
i. Business Associate shall within ten days of receiving a written request from Covered Entity
make any amendment to PHI in a Designated Record Set as directed by or agreed to by
Covered Entity pursuant to 45 C.F.R. 164.526, or take other measures as necessary to satisfy
Covered Entity’s obligations under 45 C.F.R. 164.526.
ii. Business Associate shall promptly forward to Covered Entity any request for amendment of
PHI that Business Associate receives directly from an Individual.
k. Accounting Rights. Business Associate shall, within ten days of receiving a written request from
Covered Entity, maintain and make available to Covered Entity the information necessary for Covered
Entity to satisfy its obligations to provide an accounting of Disclosure under 45 C.F.R. 164.528.
l. Restrictions and Confidential Communications.
i. Business Associate shall restrict the Use or Disclosure of an Individual’s PHI within ten days
of notice from Covered Entity of:
(1) a restriction on Use or Disclosure of PHI pursuant to 45 C.F.R. 164.522; or
(2) a request for confidential communication of PHI pursuant to 45 C.F.R. 164.522.
ii. Business Associate shall not respond directly to an Individual’s requests to restrict the Use or
Disclosure of PHI or to send all communication of PHI to an alternate address.
iii. Business Associate shall refer such requests to Covered Entity so that Covered Entity can
coordinate and prepare a timely response to the requesting Individual and provide direction
to Business Associate.
m. Governmental Access to Records. Business Associate shall make its facilities, internal practices,
books, records, and other sources of information, including PHI, available to the Secretary for
purposes of determining compliance with the HIPAA Rules in accordance with 45 C.F.R. 160.310.
n. Audit, Inspection and Enforcement.
i. Business Associate shall obtain and update at least annually a written assessment performed
by an independent third party reasonably acceptable to Covered Entity, which evaluates the
Information Security of the applications, infrastructure, and processes that interact with the
Covered Entity data Business Associate receives, manipulates, stores and distributes. Upon
request by Covered Entity, Business Associate shall provide to Covered Entity the executive
summary of the assessment.
ii. Business Associate, upon the request of Covered Entity, shall fully cooperate with Covered
Entity’s efforts to audit Business Associate’s compliance with applicable HIPAA Rules. If,
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through audit or inspection, Covered Entity determines that Business Associate’s conduct
would result in violation of the HIPAA Rules or is in violation of the Contract or this
Agreement, Business Associate shall promptly remedy any such violation and shall certify
completion of its remedy in writing to Covered Entity.
o. Appropriate Safeguards.
i. Business Associate shall use appropriate safeguards and comply with Subpart C of 45 C.F.R.
Part 164 with respect to electronic PHI to prevent use or disclosure of PHI other than as
provided in this Agreement.
ii. Business Associate shall safeguard the PHI from tampering and unauthorized disclosures.
iii. Business Associate shall maintain the confidentiality of passwords and other data required
for accessing this information.
iv. Business Associate shall extend protection beyond the initial information obtained from
Covered Entity to any databases or collections of PHI containing information derived from
the PHI. The provisions of this section shall be in force unless PHI is de-identified in
conformance to the requirements of the HIPAA Rules.
p. Safeguard During Transmission.
i. Business Associate shall use reasonable and appropriate safeguards including, without
limitation, Information Security measures to ensure that all transmissions of PHI are
authorized and to prevent use or disclosure of PHI other than as provided for by this
Agreement.
ii. Business Associate shall not transmit PHI over the internet or any other insecure or open
communication channel unless the PHI is encrypted or otherwise safeguarded with a FIPS-
compliant encryption algorithm.
q. Reporting of Improper Use or Disclosure and Notification of Breach.
i. Business Associate shall, as soon as reasonably possible, but immediately after discovery of
a Breach, notify Covered Entity of any use or disclosure of PHI not provided for by this
Agreement, including a Breach of Unsecured Protected Health Information as such notice is
required by 45 C.F.R. 164.410 or a breach for which notice is required under §24-73-103,
C.R.S.
ii. Such notice shall include the identification of each Individual whose Unsecured Protected
Health Information has been, or is reasonably believed by Business Associate to have been,
accessed, acquired, or disclosed during such Breach.
iii. Business Associate shall, as soon as reasonably possible, but immediately after discovery of
any Security Incident that does not constitute a Breach, notify Covered Entity of such
incident.
iv. Business Associate shall have the burden of demonstrating that all notifications were made
as required, including evidence demonstrating the necessity of any delay.
r. Business Associate’s Insurance and Notification Costs.
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i. Business Associate shall bear all costs of a Breach response including, without limitation,
notifications, and shall maintain insurance to cover:
(1) loss of PHI data;
(2) Breach notification requirements specified in HIPAA Rules and in §24-73-103,
C.R.S.; and
(3) claims based upon alleged violations of privacy rights through improper use or
disclosure of PHI.
ii. All such policies shall meet or exceed the minimum insurance requirements of the Contract
or otherwise as may be approved by Covered Entity (e.g., occurrence basis, combined single
dollar limits, annual aggregate dollar limits, additional insured status, and notice of
cancellation).
iii. Business Associate shall provide Covered Entity a point of contact who possesses relevant
Information Security knowledge and is accessible 24 hours per day, 7 days per week to assist
with incident handling.
iv. Business Associate, to the extent practicable, shall mitigate any harmful effect known to
Business Associate of a Use or Disclosure of PHI by Business Associate in violation of this
Agreement.
s. Subcontractors and Breaches.
i. Business Associate shall enter into a written agreement with each of its Subcontractors and
agents, who create, receive, maintain, or transmit PHI on behalf of Business Associate. The
agreements shall require such Subcontractors and agents to report to Business Associate any
use or disclosure of PHI not provided for by this Agreement, including Security Incidents and
Breaches of Unsecured Protected Health Information, on the first day such Subcontractor or
agent knows or should have known of the Breach as required by 45 C.F.R. 164.410.
ii. Business Associate shall notify Covered Entity of any such report and shall provide copies of
any such agreements to Covered Entity on request.
t. Data Ownership.
i. Business Associate acknowledges that Business Associate has no ownership rights with
respect to the PHI.
ii. Upon request by Covered Entity, Business Associate immediately shall provide Covered
Entity with any keys to decrypt information that the Business Association has encrypted and
maintains in encrypted form, or shall provide such information in unencrypted usable form.
u. Retention of PHI. Except upon termination of this Agreement as provided in Section 5 below,
Business Associate and its Subcontractors or agents shall retain all PHI throughout the term of this
Agreement, and shall continue to maintain the accounting of disclosures required under Section 1.k
above, for a period of six years.
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4. Obligations of Covered Entity
a. Safeguards During Transmission. Covered Entity shall be responsible for using appropriate
safeguards including encryption of PHI, to maintain and ensure the confidentiality, integrity, and
security of PHI transmitted pursuant to this Agreement, in accordance with the standards and
requirements of the HIPAA Rules.
b. Notice of Changes.
i. Covered Entity maintains a copy of its Notice of Privacy Practices on its website. Covered
Entity shall provide Business Associate with any changes in, or revocation of, permission to
use or disclose PHI, to the extent that it may affect Business Associate’s permitted or required
uses or disclosures.
ii. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of
PHI to which Covered Entity has agreed in accordance with 45 C.F.R. 164.522, to the extent
that it may affect Business Associate’s permitted use or disclosure of PHI.
5. Termination
a. Breach.
i. In addition to any Contract provision regarding remedies for breach, Covered Entity shall
have the right, in the event of a breach by Business Associate of any provision of this
Agreement, to terminate immediately the Contract, or this Agreement, or both.
ii. Subject to any directions from Covered Entity, upon termination of the Contract, this
Agreement, or both, Business Associate shall take timely, reasonable, and necessary action
to protect and preserve property in the possession of Business Associate in which Covered
Entity has an interest.
b. Effect of Termination.
i. Upon termination of this Agreement for any reason, Business Associate, at the option of
Covered Entity, shall return or destroy all PHI that Business Associate, its agents, or its
Subcontractors maintain in any form, and shall not retain any copies of such PHI.
ii. If Covered Entity directs Business Associate to destroy the PHI, Business Associate shall
certify in writing to Covered Entity that such PHI has been destroyed.
iii. If Business Associate believes that returning or destroying the PHI is not feasible, Business
Associate shall promptly provide Covered Entity with notice of the conditions making return
or destruction infeasible. Business Associate shall continue to extend the protections of
Section 3 of this Agreement to such PHI, and shall limit further use of such PHI to those
purposes that make the return or destruction of such PHI infeasible.
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6. Injunctive Relief
Covered Entity and Business Associate agree that irreparable damage would occur in the event Business Associate
or any of its Subcontractors or agents use or disclosure of PHI in violation of this Agreement, the HIPAA Rules
or any applicable law. Covered Entity and Business Associate further agree that money damages would not
provide an adequate remedy for such Breach. Accordingly, Covered Entity and Business Associate agree that
Covered Entity shall be entitled to injunctive relief, specific performance, and other equitable relief to prevent or
restrain any Breach or threatened Breach of and to enforce specifically the terms and provisions of this Agreement.
7. Limitation of Liability
Any provision in the Contract limiting Contractor’s liability shall not apply to Business Associate’s liability under
this Agreement, which shall not be limited.
8. Disclaimer
Covered Entity makes no warranty or representation that compliance by Business Associate with this Agreement
or the HIPAA Rules will be adequate or satisfactory for Business Associate’s own purposes. Business Associate
is solely responsible for all decisions made and actions taken by Business Associate regarding the safeguarding
of PHI.
9. Certification
Covered Entity has a legal obligation under HIPAA Rules to certify as to Business Associate’s Information
Security practices. Covered Entity or its authorized agent or contractor shall have the right to examine Business
Associate’s facilities, systems, procedures, and records, at Covered Entity’s expense, if Covered Entity determines
that examination is necessary to certify that Business Associate’s Information Security safeguards comply with
the HIPAA Rules or this Agreement.
10. Amendment
a. Amendment to Comply with Law. The Parties acknowledge that state and federal laws and regulations
relating to data security and privacy are rapidly evolving and that amendment of this Agreement may
be required to provide procedures to ensure compliance with such developments.
i. In the event of any change to state or federal laws and regulations relating to data security
and privacy affecting this Agreement, the Parties shall take such action as is necessary to
implement the changes to the standards and requirements of HIPAA, the HIPAA Rules
and other applicable rules relating to the confidentiality, integrity, availability and
security of PHI with respect to this Agreement.
ii. Business Associate shall provide to Covered Entity written assurance satisfactory to
Covered Entity that Business Associate shall adequately safeguard all PHI, and obtain
written assurance satisfactory to Covered Entity from Business Associate’s
Subcontractors and agents that they shall adequately safeguard all PHI.
iii. Upon the request of either Party, the other Party promptly shall negotiate in good faith the
terms of an amendment to the Contract embodying written assurances consistent with the
standards and requirements of HIPAA, the HIPAA Rules, or other applicable rules.
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iv. Covered Entity may terminate this Agreement upon 30 days’ prior written notice in the event
that:
(1) Business Associate does not promptly enter into negotiations to amend the Contract
and this Agreement when requested by Covered Entity pursuant to this Section; or
(2) Business Associate does not enter into an amendment to the Contract and this
Agreement, which provides assurances regarding the safeguarding of PHI sufficient,
in Covered Entity’s sole discretion, to satisfy the standards and requirements of the
HIPAA, the HIPAA Rules and applicable law.
b. Amendment of Appendix. The Appendix to this Agreement may be modified or amended by the
mutual written agreement of the Parties, without amendment of this Agreement. Any modified or
amended Appendix agreed to in writing by the Parties shall supersede and replace any prior version
of the Appendix.
11. Assistance in Litigation or Administrative Proceedings
Covered Entity shall provide written notice to Business Associate if litigation or administrative proceeding is
commenced against Covered Entity, its directors, officers, or employees, based on a claimed violation by Business
Associate of HIPAA, the HIPAA Rules or other laws relating to security and privacy or PHI. Upon receipt of such
notice and to the extent requested by Covered Entity, Business Associate shall, and shall cause its employees,
Subcontractors, or agents assisting Business Associate in the performance of its obligations under the Contract to,
assist Covered Entity in the defense of such litigation or proceedings. Business Associate shall, and shall cause
its employees, Subcontractor’s and agents to, provide assistance, to Covered Entity, which may include testifying
as a witness at such proceedings. Business Associate or any of its employees, Subcontractors or agents shall not
be required to provide such assistance if Business Associate is a named adverse party.
12. Interpretation and Order of Precedence
Any ambiguity in this Agreement shall be resolved in favor of a meaning that complies and is consistent with the
HIPAA Rules. In the event of an inconsistency between the Contract and this Agreement, this Agreement shall
control. This Agreement supersedes and replaces any previous, separately executed HIPAA business associate
agreement between the Parties.
13. Survival
Provisions of this Agreement requiring continued performance, compliance, or effect after termination shall
survive termination of this contract or this agreement and shall be enforceable by Covered Entity.
14. APPENDIX D.1. TO HIPAA BUSINESS ASSOCIATE AGREEMENT, attached to this Exhibit
is incorporated and made part hereof.
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APPENDIX D.1 TO HIPAA BUSINESS ASSOCIATE AGREEMENT
This Appendix (“Appendix”) to the HIPAA Business Associate Agreement (“Agreement”) is s an appendix to
the Contract and the Agreement. For the purposes of this Appendix, defined terms shall have the meanings
ascribed to them in the Agreement and the Contract.
Unless the context clearly requires a distinction between the Contract, the Agreement, and this Appendix, all
references to “Contract” or “Agreement” shall include this Appendix.
1. Purpose
This Appendix sets forth additional terms to the Agreement. Any sub-section of this Appendix marked as
“Reserved” shall be construed as setting forth no additional terms.
2. Additional Terms
a. Additional Permitted Uses. In addition to those purposes set forth in the Agreement, Business
Associate may use PHI for the following additional purposes:
i. Reserved.
a. Additional Permitted Disclosures. In addition to those purposes set forth in the Agreement, Business
Associate may disclose PHI for the following additional purposes:
i. Reserved.
c. Approved Subcontractors. Covered Entity agrees that the following Subcontractors or agents of
Business Associate may receive PHI under the Agreement:
i. Reserved.
d. Definition of Receipt of PHI. Business Associate’s receipt of PHI under this Contract shall be deemed
to occur, and Business Associate’s obligations under the Agreement shall commence, as follows:
i. Reserved.
e. Additional Restrictions on Business Associate. Business Associate agrees to comply with the
following additional restrictions on Business Associate’s use and disclosure of PHI under the
Contract:
i. Reserved.
f. Additional Terms. Business Associate agrees to comply with the following additional terms under the
Agreement:
i. Reserved.
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EXHIBIT E
SAFEGUARDING REQUIREMENTS FOR FEDERAL TAX INFORMATION
This Addendum regarding Safeguarding Requirements for Federal Tax Information (“Addendum”)1 is an essential
part of the agreement between the State and Contractor as described in the Contract to which this Addendum is
attached. Unless the context clearly requires a distinction between the Contract and this Addendum, all references
to “Contract” shall include this Addendum.
1. PERFORMANCE
In performance of this Contract, the Contractor agrees to comply with and assume responsibility for compliance
by Contractor’s employees with the following requirements:
A. All work will be done under the supervision of the Contractor or the Contractor’s employees.
B. The Contractor and the Contractor’s employees with access to or who use FTI must meet the background
check requirements defined in IRS Publication 1075 and Colorado Revised Statutes 24-50-1002.
C. Any return or return information made available in any format shall be used only for the purpose of carrying
out the provisions of this Contract. Information contained in such material will be treated as
confidential and will not be divulged or made known in any manner to any person except as may
be necessary in the performance of this Contract. Disclosure to anyone other than an officer or
employee of the Contractor will be prohibited.
D. All returns and return information will be accounted for upon receipt and properly stored before, during,
and after processing. In addition, all related output will be given the same level of protection as
required for the source material.
E. The Contractor certifies that the data processed during the performance of this Contract will be completely
purged from all data storage components of Contractor’s computer facility, and no output will be
retained by the Contractor at the time the work is completed. If immediate purging of all data storage
components is not possible, the Contractor certifies that any FTI remaining in any storage
component will be safeguarded to prevent unauthorized disclosures.
F. Any spoilage or any intermediate hard copy printout that may result during the processing of FTI will be
given to the State or the State’s designee. When this is not possible, the Contractor will be
responsible for the destruction of the spoilage or any intermediate hard copy printouts, and will
provide the State or the State’s designee with a statement containing the date of destruction,
description of material destroyed, and the method used.
G. All computer systems receiving, processing, storing or transmitting FTI must meet the requirements
defined in IRS Publication 1075. To meet functional and assurance requirements, the security
features of the environment must provide for the managerial, operational, and technical controls.
1 The language of this Addendum is derived from IRS Publication 1075, Tax Information Security Guidelines For Federal,
State and Local Agencies, Exhibit 7 – Safeguarding Contract Language, “Contract Language for Technology Services.” This
Addendum is not exhaustive of all requirements contained in Publication 1075. By agreeing to this Addendum, Contractor
agrees to comply with all applicable requirements in Publication 1075 or described on the website of the IRS Safeguards
Program, located at www.irs.gov/privacy-disclosure/safeguards-program.
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All security features must be available and activated to protect against unauthorized use of and
access to FTI.
H. No work involving FTI furnished under this Contract will be subcontracted without prior written approval
of the State, by and through the contracting agency and the Office of Information Technology, and
the IRS.2
I. The Contractor will maintain a list of employees’ authorized access. Such list will be provided to the State
and, upon request, to the IRS reviewing office.
J. The Contractor will not use live FTI in a test environment or utilize a cloud computing model that receives
processes, stores, or transmits FTI without express written authorization from the State.3
K. The Contractor will maintain the confidentiality of all taxpayer information provided by the State or
learned in the course of Contractor’s duties under this Contract in accordance with safeguards set
forth under Colorado Revised Statutes § 39-21-113(4), as amended.
L. The Contractor agrees to comply with the following additional requirements in performance of this
Contract:
None
M. The State will have the right to void the Contract if the Contractor fails to provide the safeguards described
above.
2. CRIMINAL/CIVIL SANCTIONS
A. Each officer or employee of any person4 to whom returns or return information is or may be disclosed will
be notified in writing by such person that returns or return information disclosed to such officer or
employee can be used only for a purpose and to the extent authorized herein, and that further
disclosure of any such returns or return information for a purpose or to an extent unauthorized
herein constitutes a felony punishable upon conviction by a fine of as much as $5,000 or
imprisonment for as long as 5 years, or both, together with the costs of prosecution. Such person
shall also notify each such officer and employee that any such unauthorized further disclosure of
returns or return information may also result in an award of civil damages against the officer or
employee in an amount not less than $1,000 with respect to each instance of unauthorized
disclosure. These penalties are prescribed by IRCs 7213 and 7431 and set forth at 26 CFR
301.6103(n)-1.
B. Each officer or employee of any person to whom returns or return information is or may be disclosed shall
be notified in writing by such person that any return or return information made available in any
format shall be used only for the purpose of carrying out the provisions of this Contract. Information
contained in such material shall be treated as confidential and shall not be divulged or made known
in any manner to any person except as may be necessary in the performance of the Contract.
Inspection by or disclosure to anyone without an official need to know constitutes a criminal
2 see IRS Publication 1075, Exhibit 6 – Contractor 45-Day Notification Procedures.
3 see IRS Publication 1075, Section 9 and https://www.irs.gov/privacy-disclosure/use-of-live-fti-in-system-testing .
4 The term “person” is used in this Section 2 as it is used in Title 26 of the United States Code and related regulations. The
term “person” means a person or entity, including “an individual, a trust, estate, partnership, association, company or
corporation.” 26 U.S.C. § 7701(a)(1).
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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misdemeanor punishable upon conviction by a fine of as much as $1,000 or imprisonment for as
long as 1 year, or both, together with the costs of prosecution. Such person shall also notify each
such officer and employee that any such unauthorized inspection or disclosure of returns or return
information may also result in an award of civil damages against the officer or employee in an
amount equal to the sum of the greater of $1,000 for each act of unauthorized inspection or
disclosure with respect to which such defendant is found liable or the sum of the actual damages
sustained by the plaintiff as a result of such unauthorized inspection or disclosure plus in the case
of a willful inspection or disclosure which is the result of gross negligence, punitive damages, plus
the costs of the action. These penalties are prescribed by IRC 7213A and 7431 and set forth at 26
CFR 301.6103(n)-1.
C. Additionally, Contractor shall inform its officers and employees of the penalties for improper disclosure
imposed by the Privacy Act of 1974, 5 U.S.C. 552a. Specifically, 5 U.S.C. 552a(i)(1), which is
made applicable to Contractor by 5 U.S.C. 552a(m)(1), provides that any officer or employee of a
Contractor, who by virtue of his/her employment or official position, has possession of or access to
State records which contain individually identifiable information, the disclosure of which is
prohibited by the Privacy Act or regulations established thereunder, and who knowing that
disclosure of the specific material is prohibited, willfully discloses the material in any manner to
any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more
than $5,000.
D. Granting a Contractor access to FTI must be preceded by certifying that each individual understands the
State’s security policy and procedures for safeguarding FTI. Contractors must maintain their
authorization to access FTI through annual recertification. The initial certification and
recertification must be documented and placed in the State’s files for review. As part of the
certification and at least annually afterwards, Contractors must be advised of the provisions of IRCs
7431, 7213, and 7213A (see Exhibit 4, Sanctions for Unauthorized Disclosure, and Exhibit 5, Civil
Damages for Unauthorized Disclosure). The training provided before the initial certification and
annually thereafter must also cover the incident response policy and procedure for reporting
unauthorized disclosures and data breaches.5 For both the initial certification and the annual
certification, the Contractor must sign, either with ink or electronic signature, a confidentiality
statement certifying their understanding of the security requirements.
3. INSPECTION
The IRS and the State, with 24-hour notice, shall have the right to send its inspectors into the offices and plants
of the Contractor to inspect facilities and operations performing any work with FTI under this Contract for
compliance with requirements defined in IRS Publication 1075. The IRS’s right of inspection shall include the
use of manual and/or automated scanning tools to perform compliance and vulnerability assessments of
information technology (IT) assets that access, store, process, or transmit FTI. On the basis of such inspection,
corrective actions may be required in cases where the Contractor is found to be noncompliant with Contract
safeguards.
5 see IRS Publication 1075, Section 10 or www.irs.gov/privacy-disclosure/reporting-improper-inspections-or-disclosures.
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PARTICIPATING ADDENDUM EXHIBIT F, INFORMATION TECHNOLOGY
PROVISIONS
This Exhibit regarding Information Technology Provisions (the “Exhibit”) is an essential part of the
agreement between the State and Contractor as described in the Contract to which this Exhibit is
attached. Unless the context clearly requires a distinction between the Contract and this Exhibit, all
references to “Contract” shall include this Exhibit.
1. PROTECTION OF SYSTEM DATA
A. In addition to the requirements of the main body of this Contract, if Contractor or any
Subcontractor is given access to State Information Technology resources or State Records
by the State or its agents in connection with Contractor’s performance under the Contract,
Contractor shall protect such Information Technology resources and State Records in
accordance with this Exhibit. To the extent applicable to the Subcontractor’s scope of
work performed in furtherance of the contract, all provisions of this Exhibit that refer to
Contractor shall apply equally to any Subcontractor performing work in connection with
the Contract.
B. The terms of this Exhibit shall apply to the extent that Contractor’s obligations under this
Contract include the provision of Information Technology goods or services to the State.
Information Technology is computer-based equipment and related services designed for
the storage, manipulation, and retrieval of data, and includes, without limitation:
i. Any technology, equipment, or related services described in §24-37.5-102(2),
C.R.S.;
ii. The creation, use, processing, disclosure, transmission, or disposal of State
Records, including any data or code, in electronic form; and
iii. Other existing or emerging technology, equipment, or related services that may
require knowledge and expertise in Information Technology.
C. To the extent the State has purchased the services listed in this Section, Contractor shall,
and shall cause its Subcontractors to meet all of the following:
i. Provide physical and logical protection for all hardware, software, applications,
and data that meets or exceeds industry standards and the requirements of this
Contract.
ii. Maintain network, system, and application security, which includes, but is not
limited to, network firewalls, intrusion detection (host and network), annual
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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security testing, and improvements or enhancements consistent with evolving
industry standards.
iii. Comply with State and federal rules and regulations related to overall security,
privacy, confidentiality, integrity, availability, and auditing.
iv. Provide that security is not compromised by unauthorized access to workspaces,
computers, networks, software, databases, or other physical or electronic
environments.
v. Promptly report all Incidents, including Incidents that do not result in
unauthorized disclosure or loss of data integrity, to a designated representative
of the State’s Office of Information Security (“OIS”).
vi. Comply with all rules, policies, procedures, and standards issued by the
Governor’s Office of Information Technology (“OIT”), including change
management, project lifecycle methodology and governance, technical
standards, documentation, and other requirements posted at
www.oit.state.co.us/about/policies.
D. Subject to Contractor’s reasonable access security requirements and upon reasonable
prior notice, Contractor shall provide the State with scheduled access for the purpose of
inspecting and monitoring access and use of State Records, maintaining State systems,
and evaluating physical and logical security control effectiveness.
E. Contractor shall perform current background checks in a form reasonably acceptable to
the State on all of its respective employees and agents performing services or having
access to State Records provided under this Contract, including any Subcontractors or the
employees of Subcontractors. A background check performed within 30 days prior to the
date such employee or agent begins performance or obtains access to State Records shall
be deemed to be current.
i. Upon request, Contractor shall provide notice to a designated representative for
the State indicating that background checks have been performed. Such notice
will inform the State of any action taken in response to such background checks,
including any decisions not to take action in response to negative information
revealed by a background check.
ii. If Contractor will have access to Federal Tax Information under the Contract,
Contractor shall agree to the State’s requirements regarding Safeguarding
Requirements for Federal Tax Information and shall comply with the
background check requirements defined in IRS Publication 1075 and §24-50-
1002, C.R.S.
2. DATA HANDLING
A. Contractor may not maintain or forward these State Records to or from any other facility
or location, except for the authorized and approved purposes of backup and disaster
recovery purposes, without the prior written consent of the State. Contractor may not
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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maintain State Records in any data center or other storage location outside the United
States for any purpose without the prior express written consent of OIS.
B. Except for as needed for support services, Contractor shall not allow remote access to
State Records from outside the United States, including access by Contractor’s employees
or agents, without the prior express written consent of OIS. Contractor shall communicate
any request regarding non-U.S. access to State Records to the Security and Compliance
Representative for the State. The State shall have sole discretion to grant or deny any such
request.
C. Upon request by the State made any time prior to 60 days following the termination of
this Contract for any reason, whether or not the Contract is expiring or terminating,
Contractor shall make available to the State a complete download file of all State data.
i. This download file shall be made available to the State within 10 Business Days
of the State’s request, shall be encrypted and appropriately authenticated, and
shall contain, without limitation, all State Records, Work Product, and system
schema and transformation definitions, or delimited text files with documents,
detailed schema definitions along with attachments in its native format.
ii. Upon the termination of Contractor’s provision of data processing services,
Contractor shall, as directed by the State, return all State Records provided by
the State to Contractor, and the copies thereof, to the State or destroy all such
State Records and certify to the State that it has done so. If any legal obligation
imposed upon Contractor prevents it from returning or destroying all or part of
the State Records provided by the State to Contractor, Contractor shall
guarantee the confidentiality of all State Records provided by the State to
Contractor and will not actively process such data anymore. Contractor shall not
interrupt or obstruct the State’s ability to access and retrieve State Records
stored by Contractor.
D. The State retains the right to use the established operational services to access and retrieve
State Records stored on Contractor’s infrastructure at its sole discretion and at any time.
Upon request of the State or of the supervisory authority, Contractor shall submit its data
processing facilities for an audit of the measures referred to in this Exhibit in accordance
with the terms of this Contract.
3. COMPLIANCE
A. In addition to the compliance obligations imposed by the main body of the Contract,
Contractor shall comply with:
i. To the extent applicable to the products being sold herein, all information security
and privacy obligations imposed by any federal, state, or local statute or
regulation, or by any specifically incorporated industry standards or guidelines,
as applicable based on the classification of the data relevant to Contractor’s
performance under the Contract. Such obligations may arise from:
a. Health Information Portability and Accountability Act (HIPAA)
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b. IRS Publication 1075
c. Payment Card Industry Data Security Standard (PCI-DSS)
d. FBI Criminal Justice Information Service Security Addendum
e. CMS Minimum Acceptable Risk Standards for Exchanges
f. Electronic Information Exchange Security Requirements and Procedures
For State and Local Agencies Exchanging Electronic Information With
The Social Security Administration
B. Contractor shall implement and maintain all appropriate administrative, physical,
technical, and procedural safeguards necessary and appropriate to ensure compliance with
the standards and guidelines applicable to Contractor’s performance under the Contract.
C. Contractor shall allow the State reasonable access and shall provide the State with
information reasonably required to assess Contractor’s compliance. Such access and
information shall include to the extent available:
i. An annual SOC2 Type II audit including, at a minimum, the Trust Principles of
Security, Confidentiality, and Availability, or an alternative audit recommended
by OIS; or
ii. The performance of security audit and penetration tests, as requested by OIS.
D. To the extent Contractor controls or maintains information systems used in connection
with State Records, Contractor will provide OIS with the results of all security assessment
activities when conducted on such information systems, including any code-level
vulnerability scans, application level risk assessments, and other security assessment
activities as required by this Contract or reasonably requested by OIS. Contractor will
make reasonable efforts to remediate any vulnerabilities or will request a security
exception from the State. The State will work with Contractor and OIS to prepare any
requests for exceptions from the security requirements described in this Contract and its
Exhibits, including mitigating controls and other factors, and OIS will consider such
requests in accordance with their policies and procedures referenced herein.
4. TRANSITION OF SERVICES
Upon request by the State prior to expiration or earlier termination of this Contract or any
Services provided in this Contract, Contractor shall provide reasonable and necessary
assistance to accomplish a complete transition of the Services from Contractor to the State
or any replacement provider designated solely by the State without any interruption of or
adverse impact on the Services. Contractor shall cooperate fully with the State or any
successor provider and shall promptly take all steps required to assist in effecting a
complete transition of the Services designated by the State. All services related to such
transition shall be performed at no additional cost beyond what would be paid for the
Services in this Contract.
5. LICENSE OR USE AUDIT RIGHTS
A. To the extent that Contractor, through this Contract or otherwise as related to the subject
matter of this Contract, has granted to the State any license or otherwise limited
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permission to use any Contractor Property, subject to the Motorola Software License
Agreement, the terms of this section shall apply.
B. Contractor shall have the right, at any time during and throughout the Contract Term, but
not more than once per Fiscal Year, to request via written notice in accordance with the
notice provisions of the Contract that the State audit its use of and certify as to its
compliance with any applicable license or use restrictions and limitations contained in
this Contract (an “Audit Request”). The Audit Request shall specify the time period to be
covered by the audit, which shall not include any time periods covered by a previous
audit. The State shall complete the audit and provide certification of its compliance to
Contractor (“Audit Certification”) within 120 days following the State’s receipt of the
Audit Request.
C. If upon receipt of the State’s Audit Certification, the Parties reasonably determine that:
(i) the State’s use of licenses, use of software, use of programs, or any other use during
the audit period exceeded the use restrictions and limitations contained in this Contract
(“Overuse”) and (ii) the State would have been or is then required to purchase additional
maintenance and/or services (“Maintenance”), Contractor shall provide written notice to
the State in accordance with the notice provisions of the Contract identifying any Overuse
or required Maintenance and request that the State bring its use into compliance with such
use restrictions and limitations.
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
City of Aspen Project No.: 2024-385
AGREEMENT made as of 11th day of September, in the year 2024.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5055
And the Vendor:
Motorola
c/o Amber Geiwitz
13108 Collections Center Drive
Chicago, IL 60693
720-338-7624
amber.geiwitz@motorolasolutions.com
Summary Description of Items to be Purchased:
2025 Radio Upgrade Order for Aspen Police Department
Exhibits appended and made a part of this Agreement:
The City and Vendor agree as set forth below.
If this Agreement requires the City to pay
an amount of money in excess of
$100,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date:
Resolution No.:
Exhibit A: List of supplies, equipment, or materials to be purchased.
Exhibit B: Participating Addendum to NASPO ValuePoint with Motorola Solutions, Inc.
Master Agreement No. 00318 and State of Colorado Contract # 173765
Total: $301,867.82
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BA
2024-114
12/3/2024
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1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB Pitkin County Communications Attn: Nelson/Goelz 351 Southside
Drive Basalt, CO 81621) [Delivery Address]
3. Contract Documents. This Agreement shall be subject to the terms of conditions of
the PARTICPATING ADDENDUM to NASPO ValuePoint Master Agreement No. 00318
between Motorola Solutions, Inc. and The State of Colorado #173765 “Contract Documents” and
said Contract Document are hereby made a part of this Agreement as if fully set out at length
herein.
4. Warranties. 7 years of coverage on the radios (HW repair, SW and technical
support).
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. The purchase agreement
shall accrue to the benefit of and be binding upon the parties hereto. Motorola Solutions may
assign this agreement to a successor entity into which Motorola Solutions shall have been
merged or consolidated or to which Motorola Solutions shall have sold or transferred all or
substantially all its assets, and Motorola Solutions may assign this agreement in whole or in part,
in connection with any merger, consolidation, asset purchase, split-up, spin-off, divestiture, asset
sale or similar transaction involving the Motorola Solutions line or lines of business involved in
the performance of this agreement. This agreement shall not be otherwise assigned by Motorola
Solutions or by customer without the prior written consent of the other party, which consent shall
not be unreasonably withheld. This paragraph does not cover the transfer or assignment of
customer's interest as licensee of software. Any provisions related to the transfer or assignment
of customer's interest as licensee of software shall be contained in the software license.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be construed, or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 27CA7E0E-0DB5-4F08-8B26-0C6DD84307BADocusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
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8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney’s Fees. In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney’s fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
11. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(A) Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B) Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C) Vendor represents that no official, officer, employee or representative of the City durin g
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D) In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
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1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by the City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience. If the City has accepted delivery of any products or services performed through the
date of termination, the Customer is obligated to pay for the products or services.
14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement. Customer may terminate any Purchase Order if
funds sufficient to pay its obligations under the Agreement are not appropriated by the applicable
state legislature, federal government or other appropriate government entity or received from an
intended third-party funding source. If the City has accepted delivery of any products or services
performed through the date of determination, the Customer is obligated to pay for the products or
services.
15. City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of $100,000.00 it shall not be deemed valid until it has been approved by the
City Council of the City of Aspen.
16. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap,
or religion shall be made in the employment of persons to perform under this Agreement.
Vendor agrees to meet all of the requirements of City’s municipal code, section 13-98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
Any business that enters into a contract for goods or services with the City of Aspen or any of its
boards, agencies, or departments shall:
(a) Implement an employment nondiscrimination policy prohibiting discrimination in
hiring, discharging, promoting or demoting, matters of compensation, or any other
employment-related decision or benefit on account of actual or perceived race,
color, religion, national origin, gender, physical or mental disability, age, military
status, sexual orientation, gender identity, gender expression, or marital or
familial status.
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(b) Not discriminate in the performance of the contract on account of actual or
perceived race, color, religion, national origin, gender, physical or mental
disability, age, military status, sexual orientation, gender identity, gender
expression, or marital or familial status.
(c) Incorporate the foregoing provisions in all subcontracts hereunder.
17. Integration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
19. Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
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IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
to be duly executed the day and year first herein, of which, to all intents and purposes, shall be
considered as the original.
FOR THE CITY OF ASPEN:
By: __ _________________________
_______________________________
Date
Approved as to form:
_______________________________
City Attorney’s Office
SUPPLIER:
___________________________
By:________________________________
___________________________________
Title
___________________________________
Date
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Area Sales Manager
Amber Geiwitz
10/25/2024 | 9:46:04 AM MDT
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EXHIBIT A: LIST OF SUPPLIES, EQUIPMENT, OR MATERIALS TO BE
PURCHASED
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EXHIBIT
December 37 2024
VIA E-MAI L
Mayor and Council,
CITY
ATTORNEY'S
OFFICE
CITY OFASPEN
It may sound as a bit of a cliche, but I say this with all sincerity. It has been a great
honor and privilege to serve in the City Attorney's office these past 17 years, the last 12
as the City Attorney. I could not have imagined a better, more fulfilling experience than
what I have had here over those 17 years. As we all know, the City of Aspen is unique
in this world, and has throughout my tenure been served by intelligent, thoughtful, well-
meaning elected officials and wonderful, dedicated and intelligent staff.
However, it is now time for me to step down. Thus, I am announcing my retirement as
the City Attorney, In 2021, the City Council and I entered into a contract whose initial
term ends in February of next year. I would like to honor that contract and step down as
City Attorney as of the end of that term. I have committed to Council and staff to make
certain that there is a smooth transition, no matter who is appointed as the new City
Attorney and will honor that commitment at least through the 2025 election. Thus, I may
stay on with the City in some capacity, but it is time for me to retire as the City Attorney.
Again, I want to thank everyone with the City, every Council Member, every Mayor,
every staff member, for the opportunity that I have had. The experience has been
beyond anything I could have imagined or hoped for in my legal career and in my life in
Aspen.
Thank you all from the bottom of my heart.
Sincerely,
James R. True
City Attorney
cc: Kate Johnson
Luisa Berne
Tara Nelson