HomeMy WebLinkAboutagenda.council.regular.20250128AGENDA
CITY COUNCIL REGULAR
MEETING
January 28, 2025
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
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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
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VI.Consent Calendar
VIA.Resolution #003, Series of 2025 - 2025 CORE Professional Services Contract
VIB.Resolution #008, Series of 2025 - Approving the renewal of the Aspen Saturday
Market and vending agreement with the Aspen Farmers Market Group
VIC.Resolution #009, Series of 2025 - Contract for Lease and Operations of Iselin Courts
VID.Resolution #011, Series of 2025 - Appointment of Ted D. Gardenswartz as Municipal
Judge and approval of contract for judicial services.
VIE.Resolution #012, Series of 2025 - Appointment of Deputy Municipal Judges Don
Nottingham and Monica Groom and setting compensation rates for deputy municipal
judges
VIF.Draft Minutes of January 14, 2025
VII.Notice of Call-Up
VIII.First Reading of Ordinances
VIII.A.Ordinance #01, Series of 2025 - Annual Fee-in-Lieu Schedule Update
Comments d) Board Reports
(These matters may be adopted together by a single motion)
CORE Professional Services Contract Memo_ Final.pdf
Attachment A - Resolution #003-25 - CORE Professional Services Contract.pdf
Attachment B- CORE 2025 Professional Services Contract_ Scope of Work_Fee
Schedule.pdf
Resolution__008__Series_of_2025 (1).docx
2025 - Resolution #008 (2025).docx
2025 - Vending License - AFMG.docx
2025 - Operating Agreement (1-12-25).docx
Contract for Lease and Operations of the Iselin Courts Memo.docx
Resolution__009__Series__2025.doc
Aspen Pickleball Iselin Court Proposal (2).pdf
Pickleball - Contract for Lease and Operations of the Iselin Courts.pdf
Memo_ Resolution Appointing Ted Gardenswartz.docx
Resolution__011__Series_of_2025_appointing_Ted._D._Gardenswartz_as_Municipal_Judge
(1).doc
Ex. A - Executed Municipal Judge Agreement -2025.pdf
Memo__Resolution_Appointing_Deputy_Judges_Nottingham_and_Groom.docx
Resolution__012__Series_of_2025_appointing_Donald_R._Nottingham_and_Monica_Groom_as_Deputy_Court_Judges.doc
cc.min.011425.docx
Memo_Ordinance #01, Series of 2025_First Reading.pdf
Ordinance #01, Series of 2025.pdf
Exhibit A - Fee-in-Lieu Redlines.pdf
Exhibit B - Affordable Housing Fee-in-Lieu Study, Phase I.pdf
Exhibit C - Affordable Housing Fee-in-Lieu Study, Phase II.pdf
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IX.Public Hearings
X.Action Items
X.A.Appointment of Election Commission
XI.Executive Session
XII.Adjournment
Election Commission Memo.docx
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:
Discussion and direction to negotiators regarding contract negotiations for the
Lumberyard project.
The lease, transfer or acquisition of real property or property interests by APCHA, and
contract negotiations, and communication with counsel regarding such subjects. Due
to market forces, negotiation strategies and confidentiality demands of parties
involved, and necessitated by the subject of the specific legal advice, which further
disclosure would be a detriment to the City’s strategic position, the exact properties
cannot be disclosed.
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MEMORANDUM
TO: Mayor and City Council
FROM: Clare McLaughlin, Sustainability Programs Administrator
THROUGH: Ben Anderson, Community Development Director
CJ Oliver, Environmental Health and Sustainability Director
MEMO DATE: January 16, 2025
MEETING DATE: January 28, 2025
RE: Professional Services Contract Approval - Community Office for
Resource Efficiency (CORE)
REQUEST OF COUNCIL: The purpose of this memo is to request City Council approval
of a professional services contract with the Community Office for Resource Efficiency
(CORE) (Attachment B) for services to be performed in 2025. Each year, City Council
approves the use of Renewable Energy Mitigation Program (REMP) funds during the
annual budget approval process. Additional approval is then required, via resolution, to
add detail to how REMP funding will be managed and applied across the community.
This request is for a total of $1,170,000 for a contract with the Community Office for
Resource Efficiency (CORE), which is divided into two sections: Section 1 ($750,000) is
for foundational programming, and Section 2 ($420,000) is to support the Building IQ
program. This REMP funding allocation was approved by City Council in the 2025 budget
adoption on November 12, 2024.
SUMMARY AND BACKGROUND: REMP was established in 2000 by Pitkin County and
the City of Aspen. If a property chooses to install REMP applicable accessories (e.g.,
snowmelt, hot tubs, spas, and/or heat tape), they can choose to mitigate the energy use
on-site with renewable energy or pay a fee that goes into the REMP fund. These funds
are then held by the City of Aspen and authorized by City Council for use on projects that
reduce greenhouse gas emissions across the community.
Historically, Aspen has allocated a large portion of REMP funds to CORE, as a means to
re-invest REMP funds into the community to support building efficiency and
decarbonization. CORE was established in 1994 by a group of visionary citizens, local
governments, and utilities to help the community save energy and cut carbon emissions
to mitigate climate change. In October 2024, at the request of CORE, Aspen City Council
terminated the 1995 Interorganizational Agreement that originally established CORE,
acknowledging CORE’s desire to function as an independent non-profit organization.
While beginning in 2025, the City of Aspen (and all other founding members) will no longer
have Board representation on CORE’s Board of Directors, CORE will continue to deliver
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the same historic services to the community, including the services proposed in this
contract.
In April 2022, the City of Aspen passed Building IQ, a program that directly addresses
emissions in existing buildings through a phased approach of benchmarking and a
building performance standard. Since the program’s passage, CORE has been
supporting the properties enrolled in the Building IQ program through the existing
partnership with the City. This support includes connecting with property owners,
providing technical assistance on benchmarking, and conducting energy assessments to
help building owners understand their property’s energy efficiency status and needs.
Additionally, CORE connects building owners with incentives for any potential voluntary
improvements.
In 2025, Building IQ will expand further (as approved by Council through the Building IQ
ordinance) to require more commercial properties and more multi-family properties to
benchmark. To continue supporting property owners in the program, the city wishes to
continue this fee for service model for Building IQ support services, as the city does not
have the staff resources or technical expertise to support property owners in the program
at a sufficient level.
DISCUSSION:
Section 1 of this contract (Attachment B) details the scope of services to be delivered in
foundational programming for 2025. The total cost of this section is $750,000.
Foundational programming This scope provides services in CORE’s Building
Performance Hub. In summary, this includes energy advising, energy assessments,
grants and rebates, and administration. These wraparound services help building owners
and occupants throughout the entire process of upgrading their buildings. Grants and
rebates make up two-thirds of the total cost of this section of the contract.
Building performance hubs are a national best practice for providing holistic support and
service to owners, residents, and tenants in improving building energy performance.
CORE is positioned to house this hub, as many of the services in a hub are already
provided by CORE. The hub provides enhanced building assessments and reports,
support property owners and residents in connecting with grants, rebates, and incentives,
help property owners understand and navigate local requirements, support contractor
solicitation and bid review advising, provide advising on building performance for new
construction, and more. Energy advising, energy assessments, grants, and rebates have
been long-standing staples of CORE’s foundational services, supporting City of Aspen
property owners and residents in assessing their buildings, creating plans for energy
improvements, and providing grants and rebates to support the cost of those
improvements
In 2024, CORE made significant progress in foundational programming for the
community, and continue this progress with this 2025 scope of work. Key highlights for
2024 include:
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● CORE helped support 56 heat pump projects in 2024. Heat pump space heating
and water heating projects are two of the most impactful ways to reduce
greenhouse gas (GHG) emissions from buildings, as they are highly efficient and
often replace gas equipment, which burn fossil fuel.
● Responding to community values and feedback, CORE launched a bonus
incentive program for community priority participants, such as affordable housing
and childcare facilities. Of CORE’s 132 total projects in 2024, 42 projects were
with priority participants.
● Project Highlight: With help from a CORE grant, a local building in the
commercial core was able to get a design assistance grant to work toward
electrifying the one of the first buildings in Aspen from a centralized boiler system
to air-to-water heat pumps.
Section 2 of this contract details the scope of services to be delivered in Building IQ
support for 2025. The total cost of this section is $420,000. This scope includes specific
deliverables to support implementing the benchmarking portion of the Building IQ
program.
As part of this scope of work, CORE will provide 1:1 support to building owners to
benchmark their building, including supporting the process to obtain and organize annual
utility data for all building meters, helping property owners create an account on t he
benchmarking software (Energy Star Portfolio Manager), conducting data quality checks,
and helping the property owner submit the benchmarking information to the City by the
2024 deadline. CORE will create building owner scorecards, providing personalize d
information to the property owner about their building’s energy and water performance
over time, key takeaways, and opportunities for improvement. CORE will also conduct
outreach and engagement related to the benchmarking portion of Building IQ. This
section’s scope of work also supports city staff in analyzing the community’s
benchmarking data and creating a suite of supportive resources that directly align with
property owners’ needs. Finally, this section’s scope of work provides additional
incentives that may allow some building owners to perform voluntary efficiency and
electrification upgrades to their buidlings.
This section of the contract with CORE will help ensure that property owners have access
to personalized support for benchmarking and understanding their property’s utility usage.
This support will be crucial in preparation for the next phase of Building I Q, the creation
and implementation of a building performance standard, that will be brought to Council
for consideration in 2025.
Since 2022, CORE has supported the city’s Building IQ program, benchmarking
commercial properties and large multifamily properties, and providing building owners
with wraparound support. Therefore, CORE is very familiar with the program and is well
poised to deliver the services in this contract. Accomplishments from the 2024 Building
IQ scope of work include:
● Thanks to CORE’s support, the City of Aspen achieved a 100% compliance rate.
In contrast, the state of Colorado’s compliance rate was approximately 50%.
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● CORE refined already rigorous data collection methods, resulting in high
confidence in data quality for the City.
● CORE provided 1:1 support in benchmarking to 119 buildings in 2024, reducing
administrative time and burden on the building owners, improving data quality,
and providing additional support (including advising and rebates) to building
owners.
● CORE distributed personalized scorecards to all Building IQ participants, which
included information about the building’s energy and water usage and
performance, and recommendations for potential improvements.
● As a result, building owners in the Building IQ program received customized
support in tracking their building’s energy and water use trends over time, and
consultation in planning and/or executing potential next steps and upgrades in
making their buildings more efficient. …
This is a sole source vendor due to developed, existing relationships between the City of
Aspen and CORE to utilize REMP funds for their intended purpose, and between CORE
and the Aspen community (including commercial and residential property owners and
residents). There is no other entity that has the ability and organizational resources to
deliver on the key components of this contract, including property assessments, rebates,
grants, outreach, and technical assistance to property owners.
FINANCIAL IMPACTS: The total contract amount is $1,170,000, which is currently
budgeted for in the REMP fund for 2025. At the November 12, 2024, regular meeting, City
Council approved the 2025 budget, which included the use of REMP funds for
foundational programming and for Building IQ support through a 3rd party vendor (CORE
selected as sole source vendor).
ENVIRONMENTAL IMPACTS: Buildings account for 57% of the community’s emissions.
This contract provides direct support to property owners through assessments, grants,
rebates, and technical support (both within and outside of the Building IQ program) and
is crucial to reducing these emissions. This contract and proposed scope of work is in
direct alignment with the Aspen Sustainability Action Plan and Council’s Protect Our
Environment 2-year goal.
ALTERNATIVES: Council could choose to request a change in vendors or direct EHS to
hire additional staff to deliver these services. An alternative vendor likely would not have
the local expertise on Aspen’s unique building stock and energy profile and would not
have the infrastructure of the building performance hub built out to be able to provide
wraparound building support services conveniently and effectively to the community.
RECOMMENDATIONS: Staff recommends Council approve Resolution #003-25 for a
year-long professional services contract with CORE.
ATTACHMENTS:
A: Resolution #003-25
B: CORE Professional Services Contract, Scope of Work, and Fee Schedule
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CITY MANAGER COMMENTS:
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RESOLUTION #003
(Series of 2025)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AUTHORIZING
THE EXPENDITURE OF FUNDS GENERATED THROUGH THE
RENEWABLE ENERGY MITIGATION PROGRAM AND APPROVING A
CONTRACT BETWEEN THE CITY OF ASPEN AND THE COMMUNITY
OFFICE FOR RESOURCE EFFICIENCY (CORE) AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, on December 13, 1999, the City Council approved Ordinance
No. 55 Adopting the Aspen/Pitkin Energy Conservation Code; and
WHEREAS, the Aspen/Pitkin Energy Conservation Code allows that funds
collected through the Renewable Energy Mitigation Program (REMP) be spent in
accordance with a resolution passed by the Aspen City Council; and
WHEREAS, the City of Aspen has set science-based targets for the
reduction of greenhouse gas emissions by 63% by 2030 and 100% by 2050;
WHEREAS, 57% of the City of Aspen’s community-wide emissions come
from the built environment as of 2019;
WHEREAS, the Community Office for Resource Efficiency (CORE) uses
REMP funds to support City Council’s greenhouse gas emissions reduction goals
through the delivery of programs, tools, and services in the built environment; and
WHEREAS, the specific funding amounts total $1,170,000 and are assigned
as detailed in the scope of work; and
WHEREAS, the City Council of the City of Aspen finds that the funding
requests are appropriate; and
WHEREAS, there has been submitted to the City Council a contract for
foundational programming and Building IQ support, between the City of Aspen
and CORE, a true and accurate copy of which is attached hereto as Exhibit “A.”
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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
professional services between the City of Aspen and CORE, a copy of which is
annexed hereto and incorporated herein and does hereby authorize the City
Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 14th day of January, 2025.
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, January 14, 2025.
Nicole Henning, City Clerk
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Agreement Professional Services Page 0
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CORE - Foundational Programming and Building IQ Support
CITY OF ASPEN STANDARD FORM OF AGREEMENT
PROFESSIONAL SERVICES
City of Aspen Contract No.: 2024-519 - PS1355044
AGREEMENT made the 7th day of January, 2025.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5079
And the Professional:
Community Office for Resource Efficiency (CORE)
PO Box 2449 and 129 Emma Road Unit B
Basalt, CO 81621 US
970-925-9775
ceo@aspencore.org
For the Following Project:
Exhibits appended and made a part of this Agreement:
The City and Professional agree as set forth below.
If this Agreement requires the City to pay
an amount of money in excess of
$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: 1/28/202501-28-2025
Resolution No.: 2025-003
Exhibit A: Scope of Work.
Exhibit B: Fee Schedule.
Total: $ 1,170,000.00
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1.Scope of Work. Professional shall perform in a competent and professional manner the Scope
of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein.
2. Completion. Professional shall commence Work immediately upon receipt of a written Notice
to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is
consistent with professional skill and care and the orderly progress of the Work in a timely manner.
The parties anticipate that all Work pursuant to this Agreement shall be completed no later than
December 31, 2025. Upon request of the City, Professional shall submit, for the City's approval, a
schedule for the performance of Professional's services which shall be adjusted as required as the
project proceeds, and which shall include allowances for periods of time required by the City's project
engineer for review and approval of submissions and for approvals of authorities having jurisdiction
over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be
exceeded by the Professional.
3.Payment. In consideration of the work performed, City shall pay Professional on a time and
expense basis for all work performed. The hourly rates for work performed by Professional shall not
exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually agreed
to by the parties the payments made to Professional shall not initially exceed the amount set forth
above. Professional shall submit, in timely fashion, invoices for work performed. The City shall
review such invoices and, if they are considered incorrect or untimely, the City shall review the matter
with Professional within ten days from receipt of the Professional's bill.
4.Non-Assignability. Both parties recognize that this Agreement is one for personal services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the other.
Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or
obligations under this Agreement. Professional shall be and remain solely responsible to the City for
the acts, errors, omissions or neglect of any subcontractors’ officers, agents and employees, each of
whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent
of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due
which may be due to any sub-contractor.
5. Termination of Procurement. The sale contemplated by this Agreement may be
canceled by the City prior to acceptance by the City whenever for any reason and in its sole
discretion the City shall determine that such cancellation is in its best interests and convenience.
6.Termination of Professional Services. The Professional or the City may terminate the
Professional Services component of this Agreement, without specifying the reason therefor, by
giving notice, in writing, addressed to the other party, specifying the effective date of the termination.
No fees shall be earned after the effective date of the termination. Upon any termination, all finished
or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or
other material prepared by the Professional pursuant to this Agreement shall become the property of
the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for
damages sustained by the City by virtue of any breach of this Agreement by the Professional, and
the City may withhold any payments to the Professional for the purposes of set-off until such time
as the exact amount of damages due the City from the Professional may be determined.
7.Independent Contractor Status. It is expressly acknowledged and understood by the parties
that nothing contained in this agreement shall result in or be construed as establishing an employment
relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to
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use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or
servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City.
City is interested only in the results obtained under this contract. The manner and means of
conducting the work are under the sole control of Professional. None of the benefits provided by City
to its employees including, but not limited to, workers' compensation insurance and unemployment
insurance, are available from City to the employees, agents or servants of Professional. Professional
shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees,
servants and subcontractors during the performance of this contract. Professional shall indemnify
City against all liability and loss in connection with and shall assume full responsibility for payment
of all federal, state and local taxes or contributions imposed or required under unemployment
insurance, social security and income tax law, with respect to Professional and/or Professional's
employees engaged in the performance of the services agreed to herein.
8.Indemnification. Professional agrees to indemnify and hold harmless the City, its officers,
employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on
account of injury, loss, or damage, including without limitation claims arising from bodily injury,
personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind
whatsoever, which arise out of or are in any manner connected with this contract, to the extent and
for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole
or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, error,
professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the
Professional, or any officer, employee, representative, or agent of the Professional or of any
subcontractor of the Professional, or which arises out of any workmen's compensation claim of any
employee of the Professional or of any employee of any subcontractor of the Professional. The
Professional agrees to investigate, handle, respond to, and to provide defense for and defend against,
any such liability, claims or demands at the sole expense of the Professional, or at the option of the
City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in
connection with, any such liability, claims, or demands. If it is determined by the final judgment of a
court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the
act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the
Professional for the portion of the judgment attributable to such act, omission, or other fault of the
City, its officers, or employees.
9.Professional's Insurance.
(a) Professional agrees to procure and maintain, at its own expense, a policy or policies
of insurance sufficient to insure against all liability, claims, demands, and other obligations
assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition
to any other insurance requirements imposed by this contract or by law. The Professional shall
not be relieved of any liability, claims, demands, or other obligations assumed pursuant to
Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its
failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City.
All coverages shall be continuously maintained to cover all liability, claims, demands, and
other obligations assumed by the Professional pursuant to Section 8 above. In the case of any
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claims-made policy, the necessary retroactive dates and extended reporting periods shall be
procured to maintain such continuous coverage.
(i)Worker's Compensation insurance to cover obligations imposed by applicable
laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of ONE MILLION DOLLARS
($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00)
disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each
employee. Evidence of qualified self-insured status may be substituted for the
Worker's Compensation requirements of this paragraph.
(ii)Commercial General Liability insurance with minimum combined single
limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and THREE
MILLION DOLLARS ($3,000,000.00) aggregate. The policy shall be applicable to
all premises and operations. The policy shall include coverage for bodily injury, broad
form property damage (including completed operations), personal injury (including
coverage for contractual and employee acts), blanket contractual, independent
contractors, products, and completed operations. The policy shall include coverage
for explosion, collapse, and underground hazards. The policy shall contain a
severability of interests provision.
(iii)Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS
($2,000,000.00) aggregate with respect to each Professional's owned, hired and non-
owned vehicles assigned to or used in performance of the Scope of Work. The policy
shall contain a severability of interests provision. If the Professional has no owned
automobiles, the requirements of this Section shall be met by each employee of the
Professional providing services to the City under this contract.
(iv)Professional Liability insurance with the minimum limits of ONE MILLION
DOLLARS ($1,000,000) each claim and TWO MILLION DOLLARS ($2,000,000)
aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the City's
officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or
provided through any insurance pool of the City, shall be excess and not contributory
insurance to that provided by Professional. No additional insured endorsement to the policy
required above shall contain any exclusion for bodily injury or property damage arising from
completed operations. The Professional shall be solely responsible for any deductible losses
under any policy required above.
(d) The certificate of insurance provided to the City shall be completed by the Professional's
insurance agent as evidence that policies providing the required coverages, conditions, and
minimum limits are in full force and effect, and shall be reviewed and approved by the City
prior to commencement of the contract. No other form of certificate shall be used. The
certificate shall identify this contract and shall provide that the coverages afforded under the
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policies shall not be canceled, terminated or materially changed until at least thirty (30) days
prior written notice has been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of
contract upon which City may immediately terminate this contract, or at its discretion City
may procure or renew any such policy or any extended reporting period thereto and may pay
any and all premiums in connection therewith, and all monies so paid by City shall be repaid
by Professional to City upon demand, or City may offset the cost of the premiums against
monies due to Professional from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently
$350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and
protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq.,
C.R.S., as from time to time amended, or otherwise available to City, its officers, or its
employees.
10.City's Insurance. The parties hereto understand that the City is a member of the Colorado
Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA
Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk
Management Department and are available to Professional for inspection during normal business
hours. City makes no representations whatsoever with respect to specific coverages offered by
CIRSA. City shall provide Professional reasonable notice of any changes in its membership or
participation in CIRSA.
11.Completeness of Agreement. It is expressly agreed that this agreement contains the entire
undertaking of the parties relevant to the subject matter thereof and there are no verbal or written
representations, agreements, warranties or promises pertaining to the project matter thereof not
expressly incorporated in this writing.
12.Notice. Any written notices as called for herein may be hand delivered or mailed by certified
mail return receipt requested to the respective persons and/or addresses listed above.
13.Non-Discrimination. No discrimination because of race, color, creed, sex, marital status,
affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion
shall be made in the employment of persons to perform services under this contract. Professional
agrees to meet all of the requirements of City's municipal code, Section 15.04.570, pertaining to non-
discrimination in employment.
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,
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color, religion, national origin, gender, physical or mental disability, age, military
status, sexual orientation, gender identity, gender expression, or marital or
familial status.
(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.
14.Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate
as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition
of this Agreement can be waived except by the written consent of the City, and forbearance or
indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant,
or condition to be performed by Professional to which the same may apply and, until complete
performance by Professional of said term, covenant or condition, the City shall be entitled to invoke
any remedy available to it under this Agreement or by law despite any such forbearance or indulgence.
15.Execution of Agreement by City. This Agreement shall be binding upon all parties hereto
and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein, this Agreement shall not be binding upon the City unless
duly executed by the City Manager of the City of Aspen (or a duly authorized official in the City
Manager’s absence) and if above $100,000, following a Motion or Resolution of the Council of the
City of Aspen authorizing the City Manager (or other duly authorized official in the City Manager’s
absence) to execute the same.
16. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(a) Professional warrants that no person or selling agency has been employed or retained
to solicit or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Professional for the purpose
of securing business.
(b) Professional agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(c) Professional represents that no official, officer, employee or representative of the
City during the term of this Agreement has or one (1) year thereafter shall have any interest,
direct or indirect, in this Agreement or the proceeds thereof, except those that may have
been disclosed at the time City Council approved the execution of this Agreement.
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(d) In addition to other remedies it may have for breach of the prohibitions against
contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right
to:
1.Cancel this Purchase Agreement without any liability by the City;
2.Debar or suspend the offending parties from being a Professional, contractor or
subcontractor under City contracts;
3.Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Professional; and
4.Recover such value from the offending parties.
17. Fund Availability. Financial obligations of the City payable after the current fiscal year
are contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. If this Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
18. General Terms.
(a)It is agreed that neither this Agreement nor any of its terms, provisions, conditions,
representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
(b)If any of the provisions of this Agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c)The parties acknowledge and understand that there are no conditions or limitations to
this understanding except those as contained herein at the time of the execution hereof and
that after execution no alteration, change or modification shall be made except upon a writing
signed by the parties.
(d)This Agreement shall be governed by the laws of the State of Colorado as from time
to time in effect. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado.
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 grounds 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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20.Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the
benefit of and be binding upon the City and the Professional respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Professional shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
21.Third Parties. This Agreement does not and shall not be deemed or construed to confer upon
or grant to any third party or parties, except to parties to whom Professional 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 Professional
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
22.Attorney’s Fees. In the event that legal action is necessary to enforce any of the provisions
of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney’s
fees.
23.Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual
efforts of the parties hereto and the parties agree that no construction shall be made or presumption
shall arise for or against either party based on any alleged unequal status of the parties in the
negotiation, review or drafting of the Agreement.
24.Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion.
Professional 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 Professional or
any lower tier participant was unable to certify to the statement, an explanation was attached to
the Bid and was determined by the City to be satisfactory to the City.
25.Integration and Modification. This written Agreement along with all Contract Documents
shall constitute the contract between the parties and supersedes or incorporates any prior written
and oral agreements of the parties. In addition, Professional understands that no City official or
employee, other than the Mayor and City Council acting as a body at a council meeting, has
authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the
City. Any such Agreement or modification to this Agreement must be in writing and be executed
by the parties hereto.
26.Authorized Representative. The undersigned representative of Professional, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Professional 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.Additional Provisions. In addition to those provisions set forth herein and in the Contract
Documents, the parties hereto agree as follows:The Professional in performing the Services
hereunder must comply with all applicable provisions of Colorado laws for persons with disability,
including the provisions of §§24-85-101, et seq., C.R.S., and the Rules Establishing Technology
Accessibility Standards, as established by the Office Of Information Technology pursuant to
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Section §24-85- 103(2.5) and found at 8 CCR 1501-11. Services rendered hereunder that use
information and communication technology, as the term is defined in Colorado law, including but
not limited to websites, applications, software, videos, and electronic documents must also comply
with the latest version of Level AA of the Web Content Accessibility Guidelines (WCAG),
currently version 2.1. To confirm that the information and communication technology used,
created, developed, or procured in connection with the Services hereunder meets these standards,
Professional may be required to demonstrate compliance. The Professional shall indemnify the
CITY pursuant to the Indemnification section above in relation to the Professional’s failure to
comply with §§24-85-101, et seq., C.R.S., or the Technology Accessibility Standards for
Individuals with a Disability as established by the Office of Information Technology pursuant to
Section §24-85-103(2.5).
[ ] No additional provisions are adopted.
[X] See attached Exhibit A and B.
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IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement of which shall be deemed an original on the date first written
above.
CITY OF ASPEN, COLORADO:PROFESSIONAL:
____________________________________________________________
[Signature][Signature]
By: __________________________By: ____________________________
Title: _________________________Title: ___________________________
Date: _________________________Date: ___________________________
Approved as to form:
_______________________________
City Attorney’s Office
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Chief Executive Officer
John Dougherty
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CORE Proposed Services in 2025 with Funding from City of Aspen
Budget
●Total BPH Services Budget Request:$750,000
●Total BuildingIQ Budget:$420,000
The table below details the proposed use of funding from City of Aspen for CORE’s Building
Performance Hub services.
Category Cost Community Benefit
Energy Advising $90,000 CORE’s Energy Concierge service is
designed to reflect that bespoke guidance
is key to community members ultimately
completing energy improvement projects.
This includes understanding a participant's
goals,determining energy assessment
needs,choosing a project to pursue,
soliciting and reviewing quotes from
contractors,and identifying incentives
available to complete the project.
Customers of the Building Performance
Hub can expect enhanced staff expertise
and advising on topics like heat pump
technology and fuel switching,improved
coordination with local contractors,custom
solutions that optimize energy performance
for a building's unique set of circumstances,
and support to access all financial
resources available to participants,
including financing options.
Energy Assessments $12,500 Commercial Energy Assessments:Perform
free Level I assessments and provide
reports.Multifamily Building Energy
Assessments:Perform free Level I
assessments and provide reports.
Individual Residential Energy Assessments:
Provide subsidized subcontracted
assessments and reports.All Buildings:
Provide subsidized subcontracted
assessments and reports for buildings that
require higher level assessments.
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Grants and Rebates $500,000 Grants will be awarded to participants to
incentivize large scale energy projects with
large greenhouse gas savings.Rebates will
be awarded to participants to incentivize
completion of energy projects that reduce
greenhouse gas emissions.Community
Priority Participants receive double rebates.
This includes individuals or organizations
that fall in any of the following categories:
workforce housing,education and childcare
providers,the energy efficiency industry,
first responders,nonprofits and their staff,
military or veterans,or households under
150%of Area Median Income (AMI).
Administrative Overhead $62,500 This funding allows CORE to operate as an
effective organization.
Community Engagement &Resource
Development
$85,000 CORE attracts new leads and re-engages past
leads and past participants in order to intake
those leads into CORE’s energy advising
services to ultimately convert the leads to
completed projects.Additionally,CORE pursues
funding from foundations,philanthropic donors,
and state and national grant programs in order
to multiply the funding from local partners.
Total BPH Services Budget Request $750,000
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The table below details CORE’s scope of work on the BuildingIQ program for 2025.
iD Category Deliverable Cost Community Benefit Timeline
1 Benchmarking Operate benchmarking
software that increases
efficiency of benchmarking,
supporting data analytics
and insights,data tracking
and compliance,
communications,and
streamlines project
management
$12,000 Enhance efficiency and
effectiveness of program
execution and generate
program cost savings over
time.
Jan-Dec
2 Benchmarking Get accurate contact info for
covered buildings,beyond
limited info on Assessor ’s
databases
$15,000 Maximize program compliance
rate
Jan-May
3 Benchmarking Work with building owners to
get account and meter
numbers,utility consent
release forms,and other
building data through site
visits.
$84,000 Reduce compliance burdens Jan-May
4 Benchmarking Collect utility data,including
the first level of data quality
checking.
$27,000 Improve data quality of
benchmarking data;50%of
those who self-report trigger
errors.If errors are not
triggered,but data is flawed,it
is usually underreported.
Jan-May
5 Benchmarking Create Portfolio Manager
accounts for first year
buildings.
$7,000 Reduce compliance burdens.Jan-May
6 Benchmarking Upload data into Portfolio
Manager in standardized
data format.
$72,000 Reduce compliance burdens
for program participants and
advance data quality objectives
Jan-May
7 Benchmarking Check data quality.
Secondary,deeper data
quality checking.
$20,000 Improve data quality and
internal/external confidence in
the program.
June-July
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8 Benchmarking Analyze EUI,WUI and other
relevant benchmarking data
to understand Aspen’s
building stock and building
performance relative to
climate goals and provide
recommendations to building
owners and the City.
$14,000 Valuable information that will
inform BPS development and
promote internal/external
support for program objectives
Jul-Sept
8 Benchmarking Provide building owner
scorecards that show key
insights from benchmarking
with customized building
recommendations.
$28,000 Enhance program transparency
and educate building owners
about potential savings through
efficiency projects.
June-Aug
9 Benchmarking Provide internal and external
annual program reports.
$7,000 Internal/external confidence in
the program.Improved
program
design/implementation.
Aug-Sept
10 Building Performance
Support
Provide support for buildings
to voluntarily improve
performance.
$50,000 Improve building performance
and reduce GHG emissions.
Jan-Dec
11 BPS Policy
Development
Participate in BPS
Stakeholder meetings
$0 Represent the input of other
stakeholders CORE engages
with.
Jan-Dec
12 Subtotal BIQ $336,000
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14 Administrative
Overhead
9%$36,960 This funding allows CORE to
operate as an effective
organization.
Jan-Dec
15 Community
Engagement &
Resource
Development
11%$47,040 Targeted marketing to include
direct mail,dedicated website
page and in-person outreach to
connect and activate property
owners and managers in
advancing BIQ programs and
activities.Individual,corporate,
foundation and government
fundraising to complement
funding sources secured
through REMP to amplify the
scale and scope of CORE’s
Jan-Dec
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work and ensure sustainability
of CORE’s mission to meet the
outsized demand for project
funding.
16 Subtotal Admin /
Engagement /
Development
$84,000
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18 Total BIQ Budget $420,000 Jan-Dec
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Exhibit B:FEE SCHEDULE
Services Performed By:Services Performed For:
Community Office for Resource City of Aspen,Climate Action
Office Efficiency (CORE)
129 Emma Rd,Unit B 427 Rio Grande Place,
Basalt,CO 81621 Aspen,CO 81611
Section 1,Foundational Program Support for Energy Efficiency and Building
Electrification Programs Implementation,Fee Schedule
Energy Advising $90,000
Energy Assessments $12,500
Grants and Rebates $500,000
Admin /Engagement /Development $147,500
Total:$750,000
Section 2,Building IQ Implementation,Fee Schedule
Building IQ Benchmarking
Implementation
$336,000
Admin/Engagement/Development $84,000
Total:$420,000
Invoice Procedure
Contractor shall invoice Client for $877,500 in January of 2025,and $292,500 in October
of 2025.Payment shall be received within 30 days of the invoice delivery.
Client shall pay Contractor through
ACH:
Community Office for Resource Efficiency
Alpine Bank Routing #102103407
Account #8912277087
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Or
By mail:
Community Office for Resource Efficiency
PO Box 2449
Basalt,CO 81621
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MEMORANDUM
TO:Mayor and City Council
FROM:Nicole Henning
THROUGH:Alissa Farrell & James. R. True
MEMO DATE:January 21, 2025
MEETING DATE:January 28, 2025
RE:Resolution #008, Series of 2025 – Approving the renewal of the
Aspen Saturday Market and vending agreement with the Aspen Farmers Market Group.
_____________________________________________________________________
REQUEST OF COUNCIL:Staff requests Council adopt Resolution
#008,2025 authorizing the continuation of the Aspen Saturday Market
and vending agreement with the Aspen Farmer Market Group through
2030.
SUMMARY AND BACKGROUND: Resolution #097, 2010 approved the continuation
of the Aspen Saturday Market and the Commercial Core & Lodging Commissions'
administration of the Aspen Saturday Market and vending agreement with the Aspen
Farmers Market Group for five years ending in 2016. Resolution #154 (2016), then
extended the Market through 2021. It has operated pursuant to that Resolution
since.
DISCUSSION: A criteria for participation in the market is that all products
in the market are Colorado grown, made and produced,which makes
this market unique.
Council approved the expansion onto Hyman Avenue to tie the market into
the pedestrian mall. Part of that negotiation was to allow existing ground
level businesses to participate in the market. There are seven businesses
on Hyman that have street frontage and two on East Hopkins.There is an
ACRA booth as well as one for non-profit vendors and a separate one for
the City of Aspen.
FINANCIAL IMPACTS: The loss of parking is around $82,800.00.The
increase in sales tax is around 2 million for the past three years.
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MOTION:I move to adopt Resolution #008,Series of 2025 approving
the continuation of the Aspen Saturday Market for five years.
Exhibit I – Vending Agreement
Exhibit II – Operating Agreement
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RESOLUTION NO. 008
(SERIES OF 2025)
A RESOLUTION OF THE ASPEN CITY COUNCIL AUTHORIZING THE
CONTINUATION OF THE ASPEN SATURDAY MARKET AND THE
COMMERCIAL CORE AND LODGING COMMISSION'S ADMINISTRATION
OF THE ASPEN SATURDAY MARKET.
WHEREAS, the Aspen Farmer's Market Group (AFMG) has heretofore been
issued a vending agreement from the City of Aspen to operate a farmer ’s market in the
commercial core during the years of 2017 through 2021 , and has operated since that time
pursuant to the existing agreement, providing space for approximately sixteen (16)
vendors; and,
WHEREAS, the Commercial Core and Lodging Commission has administered
the operation of the Aspen Saturday Market since the year 2002 pursuant to authorization
of the Aspen City Council,currently with over seventy (70) vendors; and,
WHEREAS, pursuant to Section 26.575.190 of the Land Use Code, farmer's
markets is a permitted use within right -of-way within the City of Aspen, including the
Commercial Core (CC) zone district, provided a vending agreement is approved by the
City Council pursuant to Section 15.04.350(B) of the Municipal Code; and,
WHEREAS, pursuant to Chapter 15.04 of the Municipal Code,the City Council
may establish terms and limitations of a vending agreement and delegate their authority to
the Commercial Core and Lodging Commission for the purpose of administering a vending
agreement; and,
WHEREAS,the City Council finds that this Resolution furthers and is necessary
for the public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO as follows:
Section 1:
In accordance with Sections 15.04.350(B) and 26.710.140 of the Aspen Municipal Code,
the City Council of the City of Aspen, Colorado, does hereby authorize the continuation of the
Aspen Saturday Market program (a farmers market), approve a vending agreement with the
Aspen Farmers Market Group, authorize the Commercial Core and Lodging Commission
to administer the Market, and authorize the Commercial Core and Lodging Commission to
establish and administer vending agreements with individual vendors and groups of vendors.
Section 2:
The Aspen Farmers Market Group (AFMG)is hereby granted a vending license to operate
approximately sixteen (16) vending booths in the Aspen Saturday Market, subject to the
terms and limitations included herein and the terms and limitations of the vending license
agreement, together with the operating rules appended thereto; said vending license and
operating rules are attached hereto.The license shall be valid for a period of five (5) market
seasons, specifically the 2025-2029 market seasons; provided, however, that the City does
not notify AFMG of its intent to terminate the license on or before December 1 of each
year.
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Section 3:
This Resolution shall not affect any existing litigation and shall not operate as an abatement of
any action or proceeding now pending under or by virtue of the ordinances repealed or amended
as herein provided, and the same shall be conducted and concluded under such prior
ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the validity
of the remaining portions thereof.
Section 5:
A duly noticed public meeting on this Resolution was held on the 28
th day of January
2025, at 5:00 in the City Council Chambers, Aspen City Hall, Aspen, Colorado.
FINALLY,adopted, passed and approved this 28
th day of January 2025.
Approved as to form:Approved as to content:
James R. True, City Attorney Torre, Mayor
Attest:
Nicole Henning, City Clerk
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ASPEN SATURDAY MARKET
VENDING LICENSE AGREEMENT 2025-2029
This license agreement, has been formerly entered into this day of ,2025 by and
between the City of Aspen,a municipal corporation (hereinafter "the City")and the Aspen Farmers
Market Group (hereinafter "AFMG"):
NOW,THEREFORE,the parties hereby mutually agree as follows:
The City hereby grants AFMG permission to establish and operate a booth, or multiple booths as
applicable, within the Aspen Saturday Market vending area according to the terms and limitations of the
Aspen Saturday Market program, as defined by City Council Resolution #008,Series of 2025,and as
may be amended from time to time, subject to the following terms and conditions:
1.The License Agreement shall be valid for five (5)summer market seasons, including the 2025,
2026. 2027, 2028, 2029 seasons and shall be considered terminated after the close of the 2029
season, unless an extension is mutually agreed upon by both parties.The license may be
terminated by the City, with or without cause, following any summer market season set forth
above by providing written notice to AFMG of such intent to terminate on or before December
l st_.
2.AFMG acknowledges and accepts that the Aspen City Council has delegated to the Commercial
Core &Lodging Commission the authority to administer the operations of the Aspen Saturday
Market program.AFMG agrees that the Aspen Saturday Market program will be operated in
accordance with the limitations, rules and regulations specified in the Market Operating
Agreement appended to this License Agreement.
3.In consideration of the privileges granted by this License Agreement, AFMG shall neither hold
nor attempt to hold the City of Aspen or the County of Pitkin liable for any injury or damage,
either proximate or remote, occurring through or caused by any use of the aforementioned
locations,or for any injury or accident occurring thereon.Further, AFMG by execution of this
agreement agrees to indemnify and save harmless the City of Aspen and County of Pitkin against
any and all claims for damages or personal injuries arising from the operations of the AFMG
hereinabove described whether asserted by AFMG, its agents or employees, its guests or invitees.
4.If legal action is taken by the City to enforce the provisions of this agreement, the City shall be
entitled to recover from AFMG its costs, including reasonable attorneys fees.
5.The parties agree that no assent,expressed or implied, to any breach of any one or more of the
covenants or agreements contained herein shall be deemed or taken to be a waiver of any
succeeding or other breach.
6.AFMG represents and warrants that its operations herein shall be in compliance with all
applicable federal,state,and local laws,ordinances, regulations,pertaining to the activities of
AFMG.
7.The privileges granted and conferred by this agreement shall not be transferred or assigned in
whole or in part by AFMG.The City hereby reserves the right to revoke this vending agreement
at the discretion of the City of if AFMG fails to comply with the Aspen Saturday Market
program, as may be amended from time to time.
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8.It is expressly agreed that this License Agreement shall not operate or be construed to create a
landlord -tenant relationship between the City and AFMG under any circumstances whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date hereinafter
written.
DATE:
CITY OF ASPEN,COLORADO ASPEN FARMERS MARKET GROUP
A Municipal Corporation:
Torre,Mayor Jeff Armstrong,Chairperson
APPROVED AS TO FORM:ATTEST:
James R.True,City Attorney Nicole Henning,City Clerk
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Market Operating Agreement for the Aspen Saturday Market Program
The Aspen City Council has by resolution authorized the continuation of the Aspen
Saturday Market and has delegated to the Commercial Core and Lodging Commission
("CCLC") the responsibility for administering the Aspen Saturday Market. CCLC has
determined that the types of booths, activities, and product sales set forth below shall be
permitted for the Aspen Saturday Market, subject to the limitations and other matters
described herein:
Agricultural Booths:
The majority of products in each agricultural booth must be primarily Colorado made.
This allows for fruits, vegetables, food/beverage for off-site consumption as long as
that product is either grown or assembled in Colorado.
Agricultural brokers, or third-party agents, are not permitted.A vendor may
supplement their own agricultural products with purchased agricultural products, as
needed, on a seasonal basis.
Agricultural Booths shall be administered by the Aspen Farmers Market Group
pursuant to a vending agreement with the City of Aspen.
CCLC-Controlled Booths:
The Commercial Core and Lodging Commission (CCLC) shall operate a specified
number, to be determined each year based on available space, of local booths to
augment the liveliness of the Aspen Saturday Market,provide a variety of booths,and
provide local citizens and businesses an opportunity to participate in the market.
Potential local booths may include,but are not limited to:
•Local Businesses -ACRA booth for any local business or group of businesses.
Businesses must meet ACRA criteria. Second business license requirement shall
be waived for businesses already licensed and operating in Aspen.
•Local Artisans -Booth for a local artisan, group of artisans, or arts related non- profit
organization.
•Non-profit Booth -Booth for local non-profit organizations coordinated by the Market
Manager. Tent and weights are provided weekly.
Food:
All food items to be sold shall comply with all applicable Colorado State Retail Food
Establishment Regulations as well as rules and regulations of the Aspen Environmental
Health Department. All food vendors must have a license issued by the Environmental
Health Dept.All prepared food must originate from a licensed and inspected facility and
have State approved labels. The Aspen Environmental Health Department should be
consulted for information regarding food safety and inspection - 970.920.5039.
Location and Duration:
•The Aspen Saturday Market shall be located on the 500 Block of Hyman Avenue, the
500 block of East Hopkins Avenue and the 200 block of South Hunter Street and Conner
Park during the hours of 8:00 a.m. through 3:00 p.m. on Saturdays of June, July,
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P2
August, September, and October. Set-up may begin at 7:00 a.m. Contraction of the market
vending area or an amendment to the hours of operation must be approved by the CCLC.
Market Layout:
The layout of the Aspen Saturday Market, including but not limited to placement and
orientation of vehicles, booths, and pedestrian circulation areas, shall be established by the
CCLC, AFMG and market manager. The layout shall be established at the beginning
of each season and each successive week shall be generally consistent with the original
plan. Gray, black or white paint markings on the street can be used to designate vendor
areas. No other color shall be used to mark the street (other colors signify subsurface
utilities and excavation areas).
Emergency Access:
To maintain adequate emergency access, the center sixteen (16-18) feet of streets utilized
by the Aspen Saturday Market shall be for pedestrians only and remain free of booths,
structures, seating, trash cans, and similar items that would practically interfere with
emergency apparatus. Movable barricades may be placed at either end of the vending area
within this clear zone.
Yearly Vendor Approval and Reservation Process:
The AFMG shall submit to the City each year, no later than February 1st, the expected
number, physical extent of AFMG booths, and expected market start date.
The purpose of the AFMG reservation process is to allow the CCLC to gauge the demand
for expanding the vending area and to determine the number of remaining spaces such
that the CCLC may advertise for vendors to operate CCLC-controlled booths.
Commercial Core and Lodging Commission Booths:
The CCLC shall select vendors to be determined each year depending upon available space
in the Aspen Saturday Market and select vendors to operate those booths.
Prospective vendors for CCLC booths may acquire application materials from the City
Clerk's office and applications shall be submitted to the Clerk, along with any necessary
processing fee.
Applications will be reviewed by the CCLC at a regularly scheduled meeting and
considered for approval.
Criteria for CCLC approval of Vendors:
Each prospective vendor or group of vendors for CCLC-controlled booths shall be
evaluated according to the following criteria:
•The prospective booth will contribute to a desired liveliness and variety of the
Aspen Saturday Market.
•The vendor has no outstanding obligation with the City of Aspen Finance
Department, other City Departments that have jurisdiction, has not provoked
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excessive citizen complaints, or such problems can be remedied to the satisfaction
of the CCLC.
•The vendor agrees to the terms and conditions of the Aspen Saturday Market
application.
Appeals:
Any vendor or prospective vendor aggrieved by a decision rendered by the AFMG,
other than matters concerning association dues, fees, etc., may appeal the decision to
the CCLC.Relevant documentation shall be submitted to the City Clerk and the CCLC
shall consider appropriate action at a regularly scheduled meeting.All parties shall be
notified of the appeal meeting but shall not be required to appear or respond. The
decision rendered by the CCLC shall be considered final.
Miscellaneous:
To sell products containing alcohol, the vendor must first obtain all necessary permits
and liquor licenses prior to vending and applicable State and local regulations shall be
complied with. The Aspen City Clerk should be consulted for information regarding
liquor licensing- 970-429-2687.
Vendors must leave sales areas clean and free of litter of any kind during the operation.
Each individual seller shall return the vending area to pre-market condition, or better,
following each day of operation. Vendors with food are encouraged to provide a trash
receptacle for customer use. Vendor's failure to remove displays, equipment, signage,
etc. in a timely fashion shall result in the disposal of the items by the City at the
vendor's expense and without recourse by the vendor against the City.
Only temporary structures are permitted. Any temporary structure requiring permits
shall comply with applicable building codes and be issued such permits prior to
erection. The Aspen Building Department should be consulted for information
regarding building permits -970-920-5090.
In accordance with Municipal Code Section 13.08.110, Engine Idling, vehicles used by
vendors shall not be left idling for five (5) minutes or more within any one-hour period
of time, unless necessary due to emergency circumstances.
Vendors shall provide their own prices, signs, change, packaging, tables, chairs, tents,
weights, etc. All produce shall be priced by piece, count, package, bunch, etc. No sales
by weight shall be permitted unless scales have a current, valid seal of approval from
the Colorado Sate Department of Agriculture, Weight and Measures Division, and items
are weighed on site. To sell "Organic Certified" produce, the seller must display a
current certificate.
The City will provide access to electrical services for vendorsin a manner consistent with
all appropriate safety precautions to be taken by vendor.
Failure of any vendor to comply with these requirements shall result in immediate
revocation ofthe vending license for that individual vendor, removal of the vendor from
the Aspen Saturday Market, and any further action deemed appropriate by the Aspen
Municipal Court or any other court of competent jurisdiction.
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Promotion:
Any individual vendor or group of vendors may promote the Aspen Saturday Market or
their booth through various marketing techniques. The CCLC may use their discretionary
funds to promote the Aspen Saturday Market or advertise vacancies in the market and the
types of desired vendors.
Signs:
Signs for the Aspen Saturday Market shall be the responsibility of the CCLC and shall
be of a number, dimension, and style acceptable to the CCLC and comply with Zoning
regulations. Signs for individual vendors shall be the responsibility of each vendor and
shall not exceed 6 square feet (for example 2 feet by 3 feet).
Year-End Review and Amendments to the Market Operating Agreement:
Near or after the conclusion of each market season, the CCLC shall review the market
program with the purpose of discussing the market and ways to improve the market
program through amendments to the Market Operating Agreement or otherwise. The
AFMG shall be notified of such meeting and be invited to attend.
The CCLC may make adjustments to the Aspen Saturday Market program. Such
adjustments shall be made after the conclusion of each season unless the issue requires
immediate, mid-season changes. The CCLC shall review potential adjustments with the
AFMG prior to adoption.
39
MEMORANDUM
TO:Mayor and City Council
FROM:Desiree Whitehead, Recreation Director
THROUGH:Austin Weiss, Parks, Recreation & Culture Director
MEMO DATE:January 14, 2025
MEETING DATE:January 28, 2025
RE:Resolution #009 Series 2025: Agreement for the Lease and
Operation of Iselin Courts
_____________________________________________________________________
REQUEST OF COUNCIL:
The Recreation Department is seeking Council approval for a contract with Aspen
Pickleball, LLS to lease and operate the Iselin Courts at the Aspen Recreation Center.
SUMMARY AND BACKGROUND:
In the summer of 2024, the City of Aspen completed a full renovation of the Iselin Courts,
resulting in seven pickleball courts and one tennis court. Due to staffing constraints within
the Aspen Recreation Department, we are seeking a contractor to lease and manage
these courts for a minimum term of three years, with potential extensions.
DISCUSSION:
A Request for Proposals was sent out in October looking for professional Pickleball and
Tennis service provider for the lease and operation of the Iselin Courts. This initiative
aimed to ensure high-quality community recreational opportunities for the Aspen
community. The department received 3 proposals from highly qualified professionals. A
committee rated each proposal on the criteria below:
Professional Experience: The committee was looking for someone with USTA & PPR
Certifications, experience operating community racquet sports facilities and working with
municipalities.
Public Awareness: There was interest in making sure the operator had a sensitivity to the
community and public involvement.
Project Understanding: Making sure the operators’ proposal understood the project scope
and what their approach to operating the courts might look like.
40
Proposed Fees: With the courts being a community asset,they needed to follow the
Recreation Fee Ordinance and to offer affordable programming for the community.
References:
Aspen Pickleball, LLC was the top-rated proposal. Lauren Andersen, Aspen Pickleball
Owner and Director, has experience competing on the pro pickleball circuit, has worked
with other recreational programs in the Roaring Fork valley to offer similar programming,
and is an Aspen local raising her family here.The committee also noted that the proposal
really focused on the community pickleball for all, offering open court times and
programming for all ages. Below is an example of a weekly calendar from her proposal.
The selected contractor will be responsible for general operations, including:
•Operate courts between May 1 and October 31
•Hiring and training of certified Pickleball and Tennis professionals
41
•Managing court rentals, leagues, and tournaments
•Organizing and administering youth and adult group clinics
•Offering private lessons
•Community Open Court
FINANCIAL IMPACTS:
The Operator will be renting the facility from the City of Aspen- Recreation Department.
Fees will be set by the Aspen Recreation Fee Ordinance. The Operator will provide the
City of Aspen with a monthly itemized statement of gross sales by the 15
th of each month.
The staff will then invoice the Operator 10% of all gross sales up to $100,000 and 15% of
all gross sales over $100,000. This revenue will go into the Recreation Department’s
revenue budget.
ALTERNATIVES:
Two other operators submitted proposals so if the council is not wanting to move forward
with the recommendations staff can present another bid.
RECOMMENDATIONS:
Recreation Staff recommend the approval of the contract with Aspen Pickleball, LLS to
lease and operate the Iselin Courts at the Aspen Recreation Center.
CITY MANAGER COMMENTS:
42
RESOLUTION #009
(Series of 2025)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND ASPEN PICKLEBALL, LLC AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract for the
operation of the Iselin Courts, between the City of Aspen and Aspen Pickleball,
LLC, a true and accurate copy of which is attached hereto as Exhibit “ A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
for Professional Services between the City of Aspen and Aspen Pickleball, LLC a
copy of which is annexed hereto and incorporated herein, and does hereby
authorize the City Manager to execute said agreement on behalf of the City of
Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 28th day of January 2025.
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, January 28, 2028.
Nicole Henning, City Clerk
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N O V E M B ER 2 0 2 4
Pickleball Proposal
for Iselin Courts and
the Aspen Community
Lauren Andersen, Aspen Pickleball
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To foster the happiness and health of the
Aspen community through exceptional
pickleball programs that bring people
together, promote active lifestyles, and
create a welcoming space for all.
Mission
To be a cornerstone of the Aspen
community of all ages, fostering lifelong
friendships, promoting active lifestyles,
and inspiring joy both on and off the court.
Vision
Mission and Vision
P I C K L E B A L L P R O P O S A L
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S E C T I O N 1 . I N T R O D U C T I O N
Dear COA and ARC Team,
We are honored to submit our proposal for the Lease and Operation of the Iselin Courts
in partnership with the City of Aspen and Aspen Pickleball LLC. This opportunity allows
us to elevate our service to the Aspen community, ensuring residents and visitors receive
exceptional experiences while supporting the City’s goals.
While our proposal outlines a clear vision for services, schedules, and rates, we are most
excited about collaborating with the City, the Aspen Recreation Center, and our residents
and guests to refine an operation that works amazingly for all involved. Together, we are
certain we can meet the needs of the community in the best possible way.
We are deeply committed to diversity and inclusion, integrating equitable practices
across our operations and fostering opportunities for all. Moving into 2025 we are
already employing new programs to reach underrepresented populations and ensure
that no one is left out. We live and breathe in Aspen so sustainability is also central to our
mission. We are excited to partner with the city to ensure this operation aids in achieving
climate goals and we embed environmentally conscious practices into our operations.
Thank you for this opportunity to partner with the City of Aspen. We are excited to
introduce ourselves to you and we look forward to contributing to our community’s well-
being and success.
Warm regards,
Lauren Andersen - Director
Aspen Pickleball, LLC
847-845-4673
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S E C T I O N 1 . I N T R O D U C T I O N
Lauren Andersen,
Director, PPR
Originally from Chicago in where she competed as a collegiate tennis athlete, Lauren has turned her
love for pickleball into a successful career, earning several medals at the highest levels, including 5.0
Gold at the 2023 US Open and Silver in Singles at Nationals.
Now competing on the pro circuit, she recently represented at the 2024 World Championships in
Dallas in both Pro Singles and Doubles events. Beyond her achievements, Lauren brings energy,
warmth, dedication, and a genuine love for teaching. With her competitive edge and fun- loving
approach, Lauren is a one-of-a-kind coach. Off the court, she’s an adventurer, an avid camper, and a
skilled nurse, making her a well-rounded, well known, inspiring presence in the Aspen pickleball
community.
Over the years of competing at a high level in pickleball, Lauren has built an extensive network of
connections within the sport. Many of her touring pickleball pro friends ( many of the top players in
the world!), enjoy visiting the Aspen area to host clinics and events, enriching our programming with
their expertise. We are excited to continue offering these unique opportunities if the City of Aspen
allows.
In the winter, Lauren also keeps up her skills by coaching at the Snowmass Recreation Center, utilizing
the gym to keep pickleball accessible year-round. She is eager to collaborate with the City of Aspen to
expand indoor pickleball offerings if interested.
847.845.4673
lauren@aspenpickleball.com
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During the busy summer months, Lauren and Aspen Pickleball assemble a skilled team of coaches to
meet demand:
Eli Mautner, a collegiate national champion with PPR certification and exceptional training expertise,
who is interested in returning. We will have one head pickleball and tennis pro on staff.
Bonnie Scott, highly skilled pickleball player and coach will also be assisting with clinics, lessons, and
round robins.
Head Pros, PPR, USTA
Pickleball Instructors
Additionally, Aspen Pickleball will hire dedicated tennis instructors to enhance the tennis
programming.
Tennis Instructors
Aspen Pickleball will hire 3-6 seasonal coaches to help with drop in sessions and to assist
with clinics and Round Robins next to the Head Pro or Director. One of the current
instructors include:
Mary Layne Holloway, is a collegiate player at Grand Canyon University and is recognized
for her exceptional coaching skills, particularly in youth sports, where she has demonstrated
a strong ability to mentor and develop young athletes.
S E C T I O N 1 . I N T R O D U C T I O N
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S E C T I O N 2 . Q U A L I F I C A T I O N S A N D E X P E R I E N C E
Town of Snowmass Village-
Snowmass Recreation Center
2835 Brush Creek Rd, Snowmass Village, CO 81615
970.922.2240
Manage, create, and oversee pickleball programming
Organize leagues, round robins, clinics, and lessons
Hire exceptional and highly trained staff members to run programming and
drop in.
Manage and staff drop in assuring a smooth working system for the flow of
players and skill levels
Provide quality instruction and resources for players of all levels.
Snowmass Club
239 Snowmass Club Cir, Snowmass Village, CO 81615
970.923.5600
Program Development and Coaching: Design and lead pickleball programs,
including clinics, leagues, and tournaments, to cater to all skill levels while
providing expert instruction.
Facility Management: Oversee court scheduling and maintenance, ensuring a
great playing environment for members.
Community Engagement: Created an inclusive pickleball community through
inviting communication skills, providing social events, and member feedback.
Administration: Constant communication with various team members on the
executive team including GM. Assisted with managing budgets, and tracking
program success to enhance our program offerings.
Aspen Pickleball Programming 2022-2024
Director of Pickleball 2023-2024
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Time
09:00
10:00
11:00
13:00
12:00
14:00
15:00
Mon Tue Wed Thu Fri Sat Sun
Example of a Weekly Calendar
Drop in
Drop In Drop In
Drop in Drop in
Drop In
FREE Beginner
Clinic 1 a month
Advanced
Clinic
Lessons
Lessons
Lessons
Lessons
Dink Mixer!
Advanced
Clinic
Lessons
Lessons
Lessons
Lessons After Camp
Youth Pickle
paddle included
Afternoon
Drop in time
S E C T I O N 3 . A P P R O A C H T O P R O J E C T
After Camp
Youth Pickle
Lessons
Intermediate
Clinic Open Court
time
Afternoon
Drop in time
Evening
Drop in time
17:00
18:00
Evening
Drop in time
Open Court
time
Afternoon
Drop in time
Open Court
time
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S E C T I O N 3 . A P P R O A C H T O P R O J E C T
Programs:
Private and Semi-Private Lessons: for individuals or small groups to enhance skills and strategies. These
lessons are very customizable to individuals and their skill level.
Youth and Adult Clinics: We will offer a range of group clinics, focusing on skill development and
recreational enjoyment, at city-approved rates.
Round Robins: Organized play sessions fostering competitive yet friendly matches among participants.
Often these will include game analysis instruction by a coach.
Facility Management:
Court Scheduling: management of court availability to allow for programs, drop in, open times for the
public to use courts with friends and family.
Technology Integration: Use of online platforms to sign up for clinics, round robins, and other events via
the website. Drop-in sign-ins can be done directly at the courts using iPads, streamlining the process
with minimal extra equipment.
Community Engagement:
Inclusive Programs: Employ bilingual coaches and offer programs designed to engage and include the
currently underrepresented populations in our pickleball community.
Scholarship Program: Through our scholarship initiative, we will ensure that financial barriers do not
prevent community members from accessing our programs.
Volunteer opportunities: We love to have volunteers in the communities to help with drop in and/or
assist with clinics.
Leagues and Tournaments: Host local tournaments and social events to create some fun competitive
games for the pickleball community.
Nonprofit Initiatives: Organize charity and nonprofit tournaments to support and benefit our Aspen local
organizations.
Youth Programs: After school (after camp) camps to introduce and nurture tennis/pickleball skills among
younger players. This can be in collaboration with the Aspen Recreation Center camps and may be able
to have a pickleball/tennis component.
Sustainability Considerations: Aspen Pickleball LLC is dedicated to supporting Aspen’s sustainability
goals. We commit to sustainable practices, including using eco-friendly products, minimizing waste, and
supporting community environmental initiatives.
Retail Inventory:
Sales and Demos: Offer a selection of paddles, racquets, overgrips, balls, paddle weights, etc, with
opportunities for players to try out and demo paddles before purchase. Some of these items will be on
site, and we will have many more through online and mobile purchasing options which can be purchased
right on the court. Most importantly, we are excited to work with your employees and our clients to
build the best mix that works for all.
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S E C T I O N 4 . R E F E R E N C E S
Riley Bonilla
Program Coordinator, Town of Snowmass Village
rbonilla@tosv.com
p: 970-922-2289
Private Client and Aspen Local
wendy@avalanchecheese.com
p: 970-379-3829
Wendy Mitchell
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Programs Cost
Pickleball Programming (Lessons, clinics,
round robins)
90-80/10-20 split with rec center or
Aspen Pickleball can pay a rental fee when
using the courts-Open for discussion
Pickleball Lessons Lessons run from $25-200.00
Court Rental $36-40.00
Memberships $85-150.00
Clinics
$25-87/person for 1.5 hour clinic. I would
also be interested in running a free
beginner clinic once a month or so to get
the Aspen Community involved in more
activities and to learn the sport that i
love.
I would also like to offer clinic packs in
which you get a 10% off if you buy in
volume.
Round Robins $10-35 for 2 hours depending on type of
Round Robin and if it includes coaching.
Drop In Sessions
$10-20 or buy a summer pass for $150
which can also give you a discount on
clinics/Round Robins
Financial Projections
S E C T I O N 5
These projections are informed by the pricing models of other operations within our
immediate market. However, we’re absolutely open to, and excited, to discuss the possibility
of adjusting our rates to ensure our services accessible and supportive of the community
ensuring we align with our mission to foster inclusion and connection. We are very open to
creative solutions that will work for all parties involved.
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lauren@aspenpickleball.com
847.845.4673
For inquiries,
contact us.
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1
2024-395 AGREEMENT FOR THE LEASE AND OPERATION OF ISELIN TENNIS
COURTS
THIS AGREEMENT entered into at Aspen, Colorado, this 13th day of January, 2025 by
and between the CITY OF ASPEN, COLORADO, a municipal corporation and home-
rule city ("hereinafter "City"), and Aspen Pickleball, LLC (hereinafter "Operator").
WITNESSETH
WHEREAS, the City is the owner of the Iselin Courts in Aspen, Colorado, and desires
to contract with an operator to provide certain services during the summer seasons for the
operation of a Pickleball and Tennis Program at the Iselin Courts hereinafter referred to as
the "Premises"; and
WHEREAS, Operator has agreed to provide certain services relative to the summer use
of the Iselin Courts, as well as provide services regarding the general operation of the Iselin
Courts.
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties agree as follows:
1.Term. The City herby grants Operator the exclusive right to use the Premises for the period
of May 1st to October 31st of each calendar year (each a “Lease Year”) beginning on May 1,
2025, extending through October 31, 2028. Operator has an option to continue through
November 30th of each year, which Operator may exercise by delivering the City written
notice of Operator’s intent to exercise this extension option on or before October 1st of the
year in question. Upon mutual agreement by the parties, the Operator may renew this
Agreement for an additional three (3) years, subject to the same terms and conditions set forth
herein as may be subsequently amended by the parties, by delivering the City written notice
of Operator’s intent to exercise this renewal option on or before October 31, 2028.
2.Premises. The Premises subject to this Lease Agreement shall be 7 pickleball courts and 1
tennis court, together with non-exclusive rights to ingress, egress and parking in the adjacent
parking lot, all located at street address 0861 Maroon Creek Road, Aspen, CO 81611.
3.Use. The Premises may be used by Operator solely for the purpose of operating tennis
& pickleball programming and providing services related thereto, including, but not
limited to, retail sales of equipment, clothing and supplies, renting equipment to the public,
for lessons, for any and all uses reasonably attendant to pickleball and tennis operations.
Operator shall not use the Premises for any other purposes without the City’s written
consent. Operator’s use and occupancy of the above-described Premises shall comply with
the rules, regulations and ordinances of any governmental authority having jurisdiction
over the Premises or the activities performed thereon. Additionally, Operator shall not use
the Premises in any manner that will create an increase in the rate of insurance or a
cancellation of any insurance policy, even if such use may be in furtherance of Operator's
retail sales. Operator shall not keep, use or sell anything prohibited by any policy of fire
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insurance covering the Premises.
4.Time of Occupancy, Acceptance and Surrender of Premises. Operator shall be entitled to use
and occupy the Premises during the summer season as set forth at Paragraph 1 herein.
Occupancy of the Premises by the Operator shall be construed as recognition that the Premises
are in a good state of repair and in sanitary condition. Operator will take use and occupancy of
the Premises throughout the dates outlined above (including any applicable extensions of the
season through October 31st), of each year this agreement is in effect. The provision herein
for use and occupancy of the Premises may be varied on written understanding of the parties.
Operator shall coordinate with the City to ensure change in possession is orderly and timely.
A representative of the City shall inspect the Premises at the beginning and end of each season's
occupancy, with a representative from Operator to assess if any repairs are necessary and who
shall be responsible for them.
5.Rent. Operator agrees to pay ten percent (10%) of all gross sales up to $100,000 and fifteen
percent (15%) of all gross sales over $100,000 as defined herein. Operator shall pay its first
installment of percentage rent on or before the fifteenth (15th) day of the calendar month
immediately after the one in which the percentage rent became effective, and thereafter it
shall pay the required percent of each month’s gross sales by the fifteenth (15th) day of the
following month. Operator shall also submit to City an itemized statement of gross sales
(as defined below) and a sales tax report for the preceding month on or before the fifteenth
(15th) day of each calendar month during the term of this Lease and any renewal, extensions,
or holding over hereunder.
i)In addition, within thirty (30) days after the end of each Lease Year, Operator
shall deliver to City a written statement signed by a certified public accountant or
by some other person acceptable to City, setting forth the amount of Operator ' s gross
sales for the preceding Lease Year. Accountant or other person shall certify that the
gross sales have been computed in accordance with the definition given below, and
the statement shall be sufficiently detailed to show it was in fact prepared in
accordance with such definition. If the percentage rent for the Lease Year is more
than the total thereof actually paid by Operator, Operator shall pay the balance
due to City within thirty (30) days of delivery of the annual statement.
ii)The term "gross sales" as used in this Lease Agreement shall mean the full
amount of the actual sales price of all merchandise, services sold for cash or credit
in or from the Leased Premises by the Operator, charges for use of courts, cost of
membership packages, or any other income derived from the premises. The figure for
gross sales will include deposits not refunded to customers, orders of any kind
received or filled at the leased Premises, receipts from vending machines located
upon the leased Premises, and any other receipts which the Operator ordinarily
would credit to his business. Each credit or installment sale will be treated as a sale
for the full price in the month it is made, and there will be no deductions for
uncollected accounts or bad debts.
iii)The term “gross sales” as used in this Lease Agreement shall not include:
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1)refunds or discounts extended to customers;
2)refunds received by Operator from returns to shippers and manufacturers;
3)sales of trade fixtures or operating equipment;
4)sums received in settlement of claims of loss or damage of merchandise;
5)retail sales tax recorded at the time of each sale and expressly charged to the
customer;
6)postage charged to customers;
7)co-operative advertising revenues provided by suppliers; or
8)any property or sales taxes paid by Operator.
iv)In operating on the leased Premises, the Operator agrees to issue a serially-
numbered duplicate sales slip, invoice, non-resettable cash register receipt, or other
record approved by City, with each sale of any kind. During the term of the Lease
Agreement, Operator shall keep accurate records of all his operations. These
records shall conform to generally accepted accounting practices, and shall include
records of gross sales and of receipts and deliveries of all merchandise. Operator
shall keep all the documents relating to Operator's operations for at least thirty-six (36)
months from the end of the Lease Year to which they apply. If any audit is required,
or Operator and City disagree about the rent, Operator will keep its records until the
audit is completed or the disagreement is settled.
v)At any reasonable time, and following at least twenty-four (24) hours’ notice
in writing to Operator, City or City 's authorized representative may audit any of
Operator ' s records of gross sales. If, when City audits the records for a Lease
Year based on normal accounting procedures, it finds that the Operator has
understated its gross sales for the Lease Year by five percent (5 %) or more,
Operator shall be required to pay for the audit, and shall promptly deliver to City the
difference Operator owes it, plus interest on such difference at the rate of eight
percent (8 %) per annum from the first day of the current Lease Year to the date
such difference is paid. If such audit discloses that Operator has understated his
gross sales for that Lease Year by five percent (5 %) or more, City shall be permitted
to treat such event as a material default hereunder. In this matter, the report of City’s
accountant shall be binding and conclusive.
6.Access to Premises. City shall be entitled to enter upon the Premises at all reasonable
hours for the purpose of inspecting the same, preventing waste or loss, or enforcing any of
City's rights hereunder.
7.Duties of Operator Relative to Operation of Tennis Center. During the term of this
Agreement the Operator agrees:
a.To provide the Pickleball/Tennis-related services described in this
Agreement for each summer season for which this Lease Agreement is in
effect.
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b.To employ and maintain for the benefit of the parties, at Operator's own
cost and expense, employees of sufficient number and qualifications to
operate and manage the Premises consistent with the highest professional
standards of quality, courtesy, and customer service.
c.To perform the following general duties, at the discretion of Operator,
with pricing applicable only for the first Lease Year and thereafter
adjusted by Operator following the written approval of the Recreation
Department, which approval shall not be unreasonably withheld:
i.Operate a pickleball and tennis programming for ages five to
adult.
ii.Offer monthly and seasonal membership packages
•Operator will offer memberships for community, ranging
between $85 and $150 per month
iii.Offer Youth and Adult Group Clinic Programs fee range from
$25-$87 per clinic
iv.Offer Private instruction fee range from $25 -$200 per session
v.Offer league and tournament play
vi.Offer Open Court Community Play
vii.Provide the City of Aspen with monthly reports showing activity
counts, revenues and expenses.
d.To keep full records and accounts in regard to the operation and
management of the Premises, which records and accounts shall be
available at the end of the summer season for inspection by the City’s
auditors and/or Finance Director.
e.To make available for retail sale such merchandise as is commonly sold
in Pickleball/Tennis-oriented operations; Operator agrees to maintain
an adequate inventory of such merchandise. Operator shall devote its
best energies and adequate time to the promotion of sales at the
Premises and may engage in similar sales at its business locations in
the City of Aspen, provided such off-premises sales do not interfere
with Operator 's duties hereunder.
8.Duties of the City Relative to the Tennis Center. During the term of this Agreement the
City agrees:
a.To maintain the courts property from May 1 until October 31. As
Operator is largely dependent on the courts for its revenues, should the
City be unable to continue the maintenance of the courts for any reason
Operator shall be released from its obligations under the lease until such
time as the City is able to resume its duties in this regard.
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b.To permit Operator to use the Premises for Operator’s sole use and
occupancy with respect to its duties and privileges under this Agreement.
c.To set-up and take down and maintain windscreens, divider nets, court
nets, courts, and fixed assets (such as the court surfaces, fences, etc).
Replacement of fixed assets must go through a multiple year request
process through the City of Aspen. At the end of each season Operator
can request replacement of assets for next year.
d.City shall maintain irrigation system relative to the courts.
9.Utilities. Utilities, including water, trash/recycling, and electric, will be provided and paid
by the City of Aspen.
10.Personal Property. All personal property and trade fixtures placed on the Premises shall
be at Operator's sole risk and City shall not be liable for damage to or loss of such personal
property or trade fixtures arising from the acts or neglect of Operator, its agents or
employees. Any personal property or trade fixtures of Operator or anyone claiming under
Operator, which remains on the. Premises after the date upon which the Premises is
surrendered shall be deemed to have been abandoned and may be retained by City as its
property or disposed of by City in such a manner as City sees fit.
11.Taxes. In the event any taxes are levied and assessed upon the Premises or upon the
improvements, fixtures or personal property of the Operator during the term of Operator's
occupancy of the Premises or arising therefrom, or upon the leasehold or possessory
interests as created through this lease, Operator shall be solely responsible to satisfy and
pay all such taxes in a timely fashion. Operator shall not allow any liens for taxes or
assessments to exist with respect to the Premises, except that Operator may permit such
taxes or assessment to remain unpaid while pursuing any good faith contest or appeal of same.
12.Indemnification. Operator agrees to indemnify and hold harmless the City, its officers and
employees, from and against all liability, claims, and demands, on account of injury, loss,
or damage, including, without limitation, claims arising from bodily injury, personal injury,
sickness, disease, death , property loss or damage, or any other similar loss , which arise
out of or are in any manner connected with this Agreement, if such injury, loss, or damage
is caused in whole or in part by, or is claimed to be caused in whole or in part by, the
omission, error, or negligence of the Operator , any subcontractor of the Operator, or
which arises out of any workmen's compensation claim of any employee of the Operator
or of any employee of any subcontractor of the Operator. To the extent allowed by law, the
City agrees to indemnify and hold harmless the Operator, its officers and employees, from
and against all liability, claims, and demands, on account of injury, loss, or damage,
including, without limitation, claims arising from bodily injury, personal injury, sickness,
disease, death , property loss or damage, or any other similar loss , which arise out of or are
in any manner connected with this Agreement, if such injury, loss, or damage is caused in
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whole or in part by, or is claimed to be caused in whole or in part by, the omission, error,
or negligence of the City, any subcontractor of the City, or arises out of any workmen's
compensation claim of any employee of the City or of any employee of any subcontractor
of the City.
13.Public Liability Insurance. Operator agrees to furnish City with certificate(s) of insurance as
proof that it has secured and paid for a policy of public liability insurance covering all
public risks related to the leasing, use, occupancy, maintenance, operation or location of
the Premises. The insurance shall be procured from a company authorized to do business
in the State of Colorado and be satisfactory to City. The amount of this insurance, without
co-insurance clauses, shall not be less than the maximum liability that can be imposed upon
the City of Aspen under the laws of the State of Colorado found at C.R.S. 24-10-101 et
seq., as amended. At present, such amounts shall be as follows:
$350,000.00 for any injury to one person in any single occurrence
$990,000.00 for any injury to two or more persons in any single occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set
forth at C.R.S. 24-10-114, as amended.
14.Premises Insurance. During the full term of this Agreement, Operator, at its sole cost and
expense, shall also cause all of the furniture, fixtures, and equipment (excluding the ball
machines) in the premises to be kept insured, without co-insurance clauses, to the full
insurable value against the perils of wind, storm, hail, lightning, explosion, fire and like
perils. "Full insurance value" means the cost, as of the date of loss, for replacement of
the damaged or destroyed property in a new condition with materials of like size, kind and
quality. The insurance shall stand as primary insurance for the furniture, fixtures, and
equipment in the Premises to be procured from a company authorized to do business in
the State of Colorado and be satisfactory to the City. All policies as required herein shall
contain a waiver of subrogation by the insurer against City. A complete list of equipment
needs will be established at the beginning and end of each season.
15.Termination Due to Fire or Similar Catastrophe. If negligent on part of operator , the
Premises shall be damaged by fire or other catastrophe so as to render said Premises wholly
inoperable, and if such damage is so great that a competent licensed architect in good
standing in Pitkin County, Colorado, as selected by the City within fourteen (14) days from
the date of loss, shall certify in writing to the City and Operator that the Premises, with
reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the
happening of the occurrence of the damage, then this Agreement may terminate and City
may re-enter and take possession. Such a termination of the Agreement shall not forgive
Operator's obligations to return the Premises to City in as good repair as when operator
originally assumed possession thereof, regular and ordinary wear and tear excepting.
Alternatively, Operator shall subordinate its rights and interests in any insurance proceeds
as provided for in any insurance policy as required by this Agreement. If, however, the
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damage is not such as to prevent reoccupation and use of the Premises within ninety (90)
days, then repairs thereto shall be undertaken by Operator with all reasonable speed to
restore the Premises to its former condition and the Agreement shall remain in effect.
Operator's duties and obligations to provide services and to pay rent to the City as herein
set forth shall be suspended during those time periods wherein the Premises are unfit for
normal business activities due to fire or other catastrophe, and/or repair activities associated
therewith.
16.City to be named a Co-Insured or Additional Insured. Operator shall name City as co-insured
or additional insured on all insurance policies and such policies shall include a provision that
written notice of any non-renewal, cancellation or material change in a policy by the insurer
shall be delivered to City thirty (30) days in advance of the effective date.
17.Repairs and Alterations by Operator. Operator, upon City’s written consent, may, at its own
expense, make reasonable and necessary alterations or improvements to the Premises. All
alterations, additions and improvements shall be performed in a workmanlike manner, in
accordance with all applicable building and safety codes, and shall not weaken or impair the
structural strength or lessen the value of the Premises. All alterations, additions and
improvements made in or to the Premises shall be the property of City and remain and be
surrendered with the Premises upon termination of this Agreement. Operator agrees that prior to
any construction or installation of alternations, additions or improvements, Operator shall post
on the Premises in a conspicuous place a notice of non-liability for mechanic's lien as specified
at C.R.S. Section 38-22-105 on behalf of the City and shall notify City of such posting and
the exact location of same. Perfection of a mechanic's lien against the Premises as a result of
Operator's acts or omissions may be treated as a material breach of this lease.
18.Repairs and Alterations by City. City reserves the right, from time to time, at its own expense
and by its officials, employees and contractors, to make such alterations, renovations or
repairs in and about the Premises, other than those noted above as required by Operator, as
City deems necessary or desirable and Operator covenants to make no claim against City
for any interference with its interest as herein provided in the Premises. City shall provide
reasonable notice to Operator in advance of any intent to undertake alterations or repairs as
authorized in this paragraph and all work shall be performed at such times as mutually agreed
to between the parties so as to eliminate or minimize any disruption of Operator's business.
19.Condemnation. If during the term of this Agreement, or any renewal of it, the whole or part
of the Premises, or such portion as will make the Premises unusable for the purpose leased,
or the leasehold interest, be condemned by public authority, including City, for public use,
then this Agreement shall cease as of the date of the vesting of title in the Premises in such
condemning authority, or when possession is given to such authority, whichever event occurs
first. Operator shall not be entitled to any part of any condemnation award for the value of the
unexpired term of this Agreement or for any other estate or interest in the Premises, such amount
belonging entirely to City.
20.Assignment of Agreement. Operator shall not assign, pledge, sublease or otherwise dispose of
or encumber this lease, or the leased Premises, without the prior written consent of the City,
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which consent shall not be unreasonably withheld. Operator shall, likewise, not permit any
third party to occupy or use the Premises absent the prior written consent of the City.
21.Signs. Operator shall not place any signs upon the Premises or upon the buildings except of such
design and construction as may be permitted by City. It is understood by the parties that placement
of an identification sign or signs is important and necessary to Operator's business. Any sign
permitted by City shall at all times comply with applicable ordinances, rules and regulations.
22.Breach by Operator Defined. If Operator shall fail to timely comply with any of the terms or
conditions of this Agreement or any notice given under it, or shall become insolvent, or shall
have or attempt to make an assignment for the benefit of creditors, or if any of its property be
attached and such attachment is not promptly released, or if an execution be issued against it, or
if a petition be filed by or against it, to have it adjudicated a bankrupt, or if a trustee or receiver
shall be created or appointed to take charge of its assets, or if it shall abandon the Premises
for a period of more than seventy-two (72) hours, then at any time afterwards City may treat
such act or omission as a breach of this Agreement and, at its option, enter into the Premises
and remove all persons and take and retain possession thereof either with process of law.
23.City’s Remedy for Breach. Any breach, default or failure by Operator to perform any of the
duties or obligations assumed by Operator under this Agreement shall be cause for termination
of the Agreement by City in the manner set forth in this paragraph. City shall deliver to Operator
thirty (30) days' prior written notice of its intention to terminate this Agreement, including in
the notice a reasonable description of the breach, default or failure. If within that thirty (30)
days Operator shall fail or refuse to cure, adjust or correct the breach, default or failure to the
reasonable satisfaction of City, the City shall have the right to declare this Agreement terminated
and all rights, powers and privileges of Operator as provided through the Agreement shall cease,
and Operator shall immediately vacate the entire Premises and shall make no claim of any kind
against City by reason of the termination. The thirty (30) days' prior written notice shall be
conclusively determined to have been delivered to Operator by the posting of same upon the
main business entrance to the Premises, or at the time it is deposited in the U.S. Mail, certified,
postage prepaid, addressed to the address set forth at Paragraph 29 herein.
24.Non-Waiver of Rights. Any failure by City to so terminate this Agreement as herein provided
after the breach, default or failure by Operator to adhere to the terms of the Agreement shall
not be deemed or construed to be a waiver or continuing waiver by City of any rights to terminate
the Agreement for any present or subsequent breach, default or failure.
25.Termination by Operator. Operator may terminate this Agreement and be relieved of all
obligations hereunder by providing City thirty (30) days' written notice of its intent to terminate.
Operator shall provide a full accounting of all funds, costs and equipment upon termination.
26.Non-Discrimination. Operator agrees to comply with all laws, ordinances, rules and regulations
that may pertain or apply to the Premises and its use. In performing under the Agreement,
Operator shall not discriminate against any worker, employee or job applicant, or any member
of the public, because of race, color , creed, religion, ancestry, national origin, sex, age, marital
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status, physical handicap, affectional or sexual orientation, family responsibility or political
affiliation, nor otherwise commit an unfair employment practice.
27.Independent Contractor Status. It is expressly acknowledged and understood by the parties that
nothing contained in this Agreement shall result in or be construed as establishing an
employment relationship. To the extent that this Agreement may be construed as requiring
Operator to provide services to or on behalf of City, Operator shall be, and shall perform as,
an independent contractor who agrees to use his or her best efforts to provide the said services
on behalf of the City. No agent, employee, or servant of Operator shall be, or shall be deemed
to be, the employee, agent or servant of the City. City is interested only in the results obtained
under this Agreement. The manner and means of conducting the work are under the sole control
of operator. None of the benefits provided by City to its employees including, but not limited
to, workers' compensation insurance and unemployment insurance, are available from City to
the employees, agents or servants of Operator. Operator shall be solely and entirely responsible
for its acts and for the acts of Operator's agents, employees, servants and subcontractors
during the performance of this Agreement. Operator shall indemnify City against all liability
and loss in connection with, and shall assume full responsibility for, ·payment of all federal ,
state and local taxes or contributions imposed or required under unemployment insurance,
social security and income tax law, with respect to Operator and/or Operator's employees
engaged in the performance of the services agreed to herein.
28.Notice. Whenever this Agreement calls for or provides for notice and notice is not otherwise
specified, the same shall be provided in writing and shall be served on the person( s) as
designated by the parties below, either in person or by certified mail, postage prepaid and
return receipt requested.
For City: Aspen City Manager
427 Rio Grande Place Aspen, Colorado 81611
For Operator: Aspen Pickleball LLC
The parties may change or add such designated person(s) or addresses as may be
necessary from time to time in writing.
29.Binding Effect. All of the terms and conditions as contained in this Agreement shall inure
to the benefit of and be binding upon the successors and assigns of the parties.
30.Controlling Law. This Agreement shall be enforced and interpreted in accordance with
the laws of the State of Colorado. Any action brought to enforce or interpret this Agreement
shall be brought in the District Court in and for Pitkin County, Colorado. In the event of
litigation between the parties concerning this Agreement or matters arising therefrom, the
prevailing party shall be awarded its costs and reasonable attorney’s fees.
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31. Entire Agreement. This instrument constitutes the entire Agreement by the parties
concerning the Premises and shall supplant and supersede any previous agreements
between the parties pertinent to the Premises. Any prior or contemporaneous oral or
written agreement that purports to vary from the terms as set forth herein shall be void
and of no effect.
32.Amendments. Except as otherwise provided herein, this Agreement and all of its terms
and conditions may not be amended or modified absent a written agreement duly executed
by the parties.
WHEREFORE, the parties, through their duly authorized representatives, have executed this
Agreement upon the dates as forth herein.
CITY OF ASPEN:
_________________________________
Sara Ott, City Manager
OPERATOR:
By:____________________________
Title: __________________________
Date: __________________________
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Lauren Andersen
Owner of Aspen Pickleball
1/21/2025 | 3:39:54 PM MST
64222
MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Nicole Henning, City Clerk
THROUGH:Kate Johnson, Assistant City Attorney
MEMO DATE:January 21, 2025
MEETING DATE:January 28, 2025
RE:Resolution #11, Series of 2025, Appointment of Ted Gardenswartz
as Municipal Court Judge
REQUEST OF COUNCIL:To approve Resolution # 11, Series of 2025, appointing Ted
Gardenswartz as Municipal Judge for the City of Aspen and authorizing the City Manager
to execute a contract with Ted Gardenswartz for his service as judge.
SUMMARY AND BACKGROUND: After the retirement of Judge Brooke Peterson in
October 2024, City Council directed the city manager to conduct a request for proposals
process to solicit responses for judgeship services. The RFP was issued and closed on
November 25, 2024. City Council reviewed the application and conducted interviews of
the candidates. Pursuant to Council direction, staff negotiated a contract for judicial
services with the preferred candidate.
DISCUSSION:Mr. Gardenswartz has been licensed to practice law in Colorado for over
40 years. He has been a member of the Aspen community since 1987 and has practiced
law almost exclusively in Aspen and the Roaring Fork Valley. In 2009, he was appointed
as the Deputy Municipal Court Judge, and as a result, he has a great understanding of
the responsibilities of the job, the courtroom procedures and applicable City Municipal
Code and regulations. As Deputy Municipal Judge, he has presided over a jury trial,
decided numerous cases after a trial to the bench, and developed a familiarity with the
Aspen community. In accordance with the requirements of the Municipal Code, his initial
appointment will be for a term of 2 years, and at the expiration of his term, he will be
eligible for reappointment.
FINANCIAL IMPACTS:
Pursuant to the contract for services provided herewith, Mr. Gardenswartz will be paid
$30,000 annually and receive medical insurance benefits for himself and his spouse for
the duration of the contract subject to the same terms and conditions as City of Aspen
employees.
Attachments:Resolution #11, Series of 2025
Contract with Ted Gardenswartz
65
RESOLUTION #011
(Series of 2025)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPOINTING TED D. GARDENSWARTZ AS JUDGE FOR
THE MUNICIPAL COURT IN AND FOR THE CITY OF ASPEN AND
AUTHORIZING THE CITY MANAGER TO SIGN A CONTRACT FOR
JUDICIAL SERVICES
WHEREAS,Ted D. Gardenswartz Esq., is an attorney-at-law licensed in the
State of Colorado, and has approximately forty (40) years of experience in the
practice of law in the Aspen community; and
WHEREAS,Section 7.2(a) of the Home Rule Charter for the City of Aspen
and Section 17.04.040(a) provides for the appointment by the Aspen City Council of
a Municipal Court Judge for terms not less than two years; and
WHEREAS, Ted Gardenswartz has served as the Deputy Municipal Judge
since 2009 and meets all the qualifications required for the position; and
WHEREAS, a contract for judicial services is attached hereto as Exhibit A.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO, THAT:
The City Council hereby appoints Ted D. Gardenswartz as Municipal Court
Judge for the Municipal Court in and for the City of Aspen for a term of two years
commencing on February 1, 2025.
Furthermore, the City Council hereby authorizes the City Manager to execute
a contract with Ted D. Gardenswartz for judicial services, attached hereto as Exhibit
A.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen
on the 28th day of January, 2025.
__________________________
Torre, Mayor
I, Nicole Henning, 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 herein above stated.
_______________________________
Nicole Henning,City Clerk
66
MUNICIPAL JUDGE SERVICES AGREEMENT BETWEEN
THE CITY OF ASPEN AND TED D. GARDENSWARTZ
This Municipal Judge Services Agreement (the "Agreement") is made and entered into
the 1st day of February, 2025 (the "Effective Date"), by and between the City of Aspen, a
Colorado home rule municipality with an address of 427 Rio Grande Place, Aspen, Colorado,
81611, (the "City"), and Ted D. Gardenswartz an individual licensed to practice law in the State
of Colorado (“Judge Gardenswartz") (each a "Party" and collectively the “Parties”).
WHEREAS, the Aspen City Council hereby appoints Ted D. Gardenswartz as the City’s
presiding municipal judge pursuant to Section 7.2 of the City of Aspen Home Rule Charter and
Section 17.04.040 of the City of Aspen Municipal Code;
WHEREAS, Council desires to set the compensation of Judge Gardenswartz; and
WHEREAS, Judge Gardenswartz desires to accept the appointment of Municipal Judge
and the salary contained herein.
Now Therefore, for the consideration hereinafter set forth, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. Term. Judge Gardenswartz is hereby appointed as the presiding municipal court
judge commencing on February 1, 2025, and continuing through January 31, 2027.
Judge Gardenswartz may terminate this agreement, with or without cause, at any time
by providing thirty (30) days advance written notice of his intent to resign the
appointment.
2. Duties. Judge Gardenswartz shall preside as Judge over regular and special sessions
of the City of Aspen Municipal Court.
3. Compensation. Judge Gardenswartz shall be compensated at a rate of $30,000
annually, to be paid in bi-weekly installments, for up to three standing court sessions
each month, and additional court sessions for trials and evidentiary hearings as
needed. In addition, the City shall provide health insurance benefits for Judge
Gardenswartz and his spouse subject to the terms and conditions applicable to City
employees, including premiums paid by City employees for the benefits. These
benefits shall include health, dental, and visual insurance in accordance with the
City’s benefits policy.
4. Other Covenants. Judge Gardenswartz's performance and salary shall be reviewed
by the City Council prior to the expiration of this Agreement. Judge Gardenswartz
shall adhere to the highest professional conduct and ethics, including compliance with
the Colorado Code of Judicial Conduct and all other applicable ethical standards.
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5. Removal. Pursuant to C.R.S. § 13-10-105(2), and Section 7.2 of the City of Aspen
Home Rule Charter, Judge Gardenswartz may only be removed for cause.
6. Miscellaneous.
a. Integration. This Agreement constitutes the entire agreement between the Parties,
superseding all prior oral or written communications. Nothing herein shall be
deemed to create any terms, conditions or obligations in addition to those
provided for in Section 7.2 of the City's Home Rule Charter, Section 17.04.040 of
the City of Aspen Municipal Code, or C.R.S. § 13-10-105, nor is anything herein
intended to change the nature of the Municipal Judge position as an appointed
position under the Section 7.2 of the City's Home Rule Charter and C.R.S. § 13-
10-105(1). This Agreement is simply intended to memorialize the term and salary
of the Municipal Judge.
b. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of Colorado, and any legal action concerning the provisions hereof shall be
brought in Pitkin County, Colorado.
c. No Waiver. Delays in enforcement or the waiver of any one or more defaults or
breaches of this Agreement by the City shall not constitute a waiver of any of the
other terms or obligation of this Agreement.
d. Third Parties. There are no intended third-party beneficiaries to this Agreement.
e. Notice. Any notice under this Agreement shall be in writing and shall be deemed
sufficient when directly presented or sent pre-paid, first class U.S. Mail to the
Party at the address set forth on the first page of this Agreement.
f. Severability. If any provision of this Agreement is found by a court of competent
jurisdiction to be unlawful or unenforceable for any reason, the remaining
provisions hereof shall remain in full force and effect.
g. Modification. This Agreement may only be modified upon written agreement of
the Parties.
h. Assignment. Neither this Agreement nor any of the rights or obligations of the
Parties shall be assigned by either Party without the written consent of the other.
i. Governmental Immunity. The City and its officers, attorneys and employees, are
relying on, and do not waive or intend to waive by any provision of this
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Agreement, the monetary limitations or any other rights, immunities or
protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-
10-101, et seq., as amended, or otherwise available to the Town and its officers,
attorneys or employees.
j. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of the City not performed during the current
fiscal year is subject to annual appropriation, shall extend only to monies
currently appropriated, and shall not constitute a mandatory charge, requirement,
debt or liability beyond the current fiscal year.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE CITY OF ASPEN
By: ____________________________
Sara Ott
City Manager
MUNICIPAL COURT JUDGE
By: ____________________________
Ted D. Gardenswartz
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69212
MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Nicole Henning, City Clerk
THROUGH:Kate Johnson, Assistant City Attorney
MEMO DATE:January 21, 2025
MEETING DATE:January 28, 2025
RE:Resolution #12, Series of 2025, Appointment of Deputy Municipal
Judges
REQUEST OF COUNCIL:To approve Resolution # 12, Series of 2025, appointing
Donald Nottingham and Monica Groom as Deputy Municipal Judges for the City of Aspen
and setting the rate of compensation for deputy judges.
SUMMARY AND BACKGROUND: After the retirement of Judge Brooke Peterson in
October 2024, City Council directed the city manager to conduct a request for proposals
process to solicit responses for judgeship services. It is anticipated that the current
Deputy Municipal Judge, Ted Gardenswartz, will accept the appointment as presiding
Municipal Judge on January 28, 2025, thereby vacating his position as the Deputy
Municipal Judge. Given conflicts of interests and scheduling challenges, staff request
that two Deputy Municipal Judges be appointed to serve as called upon by the Municipal
Judge, and that the rate of compensation for services rendered by the deputy judges be
increased to $500 per day for presiding over the municipal court docket, and, if needed,
$1,000 per day when presiding over jury trials.
DISCUSSION:Mr. Nottingham is an attorney -at-law licensed in the State of
Colorado since 2004. During his twenty-year career, Mr. Nottingham has served as
a Deputy District Attorney and Chief Deputy District Attorney, practicing in the
Ninth Judicial District, which includes Pitkin County, and currently is in private
practice in the Roaring Fork Valley. Mr. Nottingham lives in the City of Aspen and
is familiar with the community.
Ms. Groom is an attorney-at-law licensed in the State of Colorado since 2001. Ms.
Groom Ms. Groom has primarily practiced in the Roaring Fork Valley in the areas
of family and law and dependency and neglect. Ms. Groom currently serves as the
associate judge for the City of Glenwood Springs, a position she has held since
2018.
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Section 7.2 of the Charter states "The municipal court shall be presided over and
its functions exercised by a judge appointed by the council for a specified term of
no less than two years."Council may appoint additional deputy judges as it deems
necessary pursuant to Section 7.2 of the Charter. Section 17.04.040 of the Municipal
Code requires that "The court shall be presided over by a municipal judge
appointed for a term of two years by resolution of the City Council.Additional judges
may be appointed as may be needed to transact the business of the court for a term
of two years ."
FINANCIAL IMPACTS:
Staff request that the Deputy Judges be compensated in the amount of $500 per day
when presiding over the municipal court docket, and $1,000 per day when presiding
over jury trials.
Attachments:Resolution #12, Series of 2025
71
RESOLUTION #012
(Series of 2025)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO,APPOINTING DONALD R. NOTTINGHAM AND MONICA
AS A DEPUTY JUDGES FOR THE MUNICIPAL COURT IN AND FOR THE
CITY OF ASPEN AND SETTING COMPENSATION RATES FOR DEPUTY
MUNICIPAL JUDGE DUTIES
WHEREAS, Donald R. Nottingham, Esq. is an attorney-at-law licensed in
the State of Colorado, and has approximately twenty (20) years of experience in the
practice of law; and
WHEREAS, Monical Groom, Esq. is an attorney-at-law licensed in the State
of Colorado, and has approximately twenty (25) years of experience in the practice of
law; and
WHEREAS, Section 7.2(b) of the Home Rule Charter for the City of Aspen
provides that Council may appoint deputy Municipal Court judges as it deems
necessary, and said deputy judges shall have all the powers of the presiding
Municipal Court Judge when called upon to act by the presiding Municipal Court
Judge or Council; and
WHEREAS, Section 17.04.040(a)of the City of Aspen Municipal Code
provides that the presiding Municipal Court Judge and any additional judges shall be
appointed by resolution for a term of two (2)years; and
WHEREAS,the City Council desires to appoint Donald R. Nottingham and
Monica Groom as Deputy Municipal Court Judges for a term of two (2) years to act
when called upon by the presiding Municipal Court Judge or by Council; and
WHEREAS, the City Council is authorized to establish the rate at which
Deputy Judges are compensated.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
City Council hereby appoints Donald R. Nottingham as a Deputy Judge of the
Municipal Court of the City of Aspen to preside over cases as is required of him for a term
of two (2) years.
City Council hereby appoints Monica Groom as a Deputy Judge of the Municipal
Court of the City of Aspen to preside over cases as is required of her for a term of two (2)
years.
Furthermore, effective February 1, 2025, the Deputy Municipal Judges shall be
compensated at a rate of $500 per day for each day they are called upon to preside over the
72
Municipal Court, and $1,000 per day for each day they are called upon to preside over a jury
trial.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen
on the 28th day of January, 2025.
__________________________
Torre, Mayor
I, Nicole Henning, 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
73
1
REGULAR MEETING ASPEN CITY COUNCIL JANUARY 14, 2025
Mayor Torre called the meeting to order at 5:00 p.m. with Councilors Doyle, Hauenstein, Rose, and Guth
present.
SCHEDULED PUBLIC APPEARANCE:
Mayor Torre announced a swearing in of new Police Officer, Karla Enriquez. Mayor Torre proceeded to
swear her in and thanked APD and said town feels great and we owe a lot of that to you guys.
Ms. Enriquez thanked Chief Ferber and all of APD for welcoming her. She is very thankful and said she
was born and raised here in Aspen.
CITIZEN COMMENTS & PETITIONS:
Mike Maple – Mr. Maple said there are two items being considered tonight. One is the modification to
demolition standards and GMS policies. It was said you would revisit the program. Here we are six
months later. There is no mention of a review of demo allotments. He’s asking not to pass the new
standards. Also, in the item on GMQS, there is no mention of the demolition program. This is extremely
disappointing to him as a citizen.
Francis Stuckins – Mr. Stuckins spoke about the entrance to Aspen. We have to keep working on it. The
climate crisis and wildfires are causing more concern. He spoke about paper bags and composting. He
spoke about Aspen being ours again and said it’s still ours. He mentioned cannabis consumption again.
COUNCILMEMBER COMMENTS:
Councilor Guth expressed his deepest sympathies for everyone in California. It scares him and he wants
to express his interest in being proactive to protect lives and property in our community.
Councilor Doyle saidthe LA fires have dramatically shown again the dangers that we face here in Aspen.
Nobody saw this coming. It is similar to Lahaina.
Councilor Rose said he’s been emailing the city forester and said it seems we’ve been doing everything
within reason for this community. He mentioned the info only memo. He thinks they should create a
collaborative list regarding the NEPA item.
Councilor Hauensteinasked about council people taking a position in the ballot issues. City Attorney,
James R. True, said they can take any position they want. As public citizens, they can do what they want.
Councilor Rose asked about an update with the Aspen Country Inn crossing. City Manager, Sara Ott, said
the investigation is not final yet. We are doing work behind the scenes, but it hasn’t been scheduled for
discussion yet.
Mayor Torre extended his condolences and prayers to L.A. It is not over yet. The APCHA survey is open
for one more day to all stakeholders. Go to the city website and click on the survey. He gave a shout out
to the World Pro Ski Tour. There will be great downhill racing, and this week is also Gay Ski Week.
XGames is here next week.
CITY MANAGER COMMENTS:
Ms. Ott spoke about wildland fires and encouraged everyone to go to a website and lets people know
what they can do to protect their own property. Council has been a leader in this area. She said Pitkin
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2
REGULAR MEETING ASPEN CITY COUNCIL JANUARY 14, 2025
County received a grant for study around the airport and it’s a regional approach. She is asking if Council
would approve using $150k of the EOTC contingency which they previously approved in the EOTC
budget. She said they can do a vote at this table for it, or they can call an EOTC meeting to discuss.
Councilor Hauensteinmotioned regarding matching the $150,000; Mayor Torreseconded.
Mr. True said he prefers that Council support the previous budgeting of the amount that this is being
taken. This an approval of what was budgeted before.
Councilor Hauensteinrepeated what Mr. True said and the seconder accepted.
Roll call vote: Doyle, yes; Guth, yes; Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Ms. Ott said her last topic is personal as she has received a lot of questions regarding her candidacy in
another community. It’s a public process to ensure trust and accountability. It can feel intrusive, but it is
part of the democratic process. She’s committed to Aspen, however.
BOARD REPORTS:
Mayor Torre spoke about Sister Cities. He attended a meeting last week where they had students from
Queensland and Shimakappu. He also had First and Last Mile subcommittee. He had RFTA last week and
CAST.
CONSENT CALENDAR:
Councilor Rose motioned to approve; Councilor Doyle seconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, Rose, Mayor Torre. 5-0, motion carried.
PUBLIC HEARINGS:
Ordinance #21, Series of 2025 - Construction Demolition and Debris Diversion – Ben Anderson, Ainsley
Brosnan-Smith, Trish Aragon.
Ms. Aragon said Aaron Reed is also here to answer questions.
Ms. Brosnan-Smith gave a background of how this program came about. She gave details about Aspen’s
carbon goal. She spoke about Aspen’s sustainability program and mentioned Pitkin County’s own debris
program and has seen success over the past three years. She spoke about stakeholder engagement and
feedback. They encouraged hearing from contractorsduring this process. She said it’s beneficial for
contractors to do their sorting on site. She spoke about time and cost. She explained what this
ordinance does and described applicability. She spoke about materials that are recoverable. She covered
enforcement and penalties, such as unsorted load fees and stop work orders. We want to be focused on
training and education.
Councilor Guth said he’s supportive and it’s the responsible thing to do, but we should wait to
implement this until we deal with the demolition allotment program.
Councilor Doyle said heis super excited about this.
Mayor Torre opened the public hearing.
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REGULAR MEETING ASPEN CITY COUNCIL JANUARY 14, 2025
Cathy Hall – Ms. Hall said she is the Solid Waste Director for Pitkin County. She’s here to provide
support. The ordinance presented tonight does closely align with their own. The waste is coming down
and the program is working. The County looks forward to working closely together and we are here for
you.
Mayor Torre thanked her for all of her work and support. Councilor Doyle also thanked her.
Shay Stutsman – Mr. Stutsman said his company has seen 65 years of business. He thanked the staff and
Cathy on their hard work on this project. He said they as contractors owe it to the community to do a
better job with recycling and he supports passing this.
Mayor Torre thanked him for his participation.
Sam Barney – Mr. Barney said he also works for a contractor and does a lot of permitting and it would
be helpful if it was the same as Pitkin County. It would be much easier and it’s important.
Ms. Brosnan-Smith said they had a study done for the penalty fees and deposit fee.
Mayor Torre said he is in favor of modifications to the demolition program and Com Dev has that
coming back to us. We don’t need to be holding people up. He will be supporting this moving forward,
however.
Councilor Doyle isn’t ready to discontinue the program either. Every local that has asked for a permit has
received one. In the future, maybe we can just discontinue. There will be a new council too.
Councilor Hauenstein said he is supporting this tonight as well.
Councilor Rose said he is beating a dead horse talking about the demolition permit program. He will
support this tonight. He feels good about this program.
Councilor Hauenstein motioned to approve Ordinance #01; Councilor Rose seconded.
Councilor Guth said he will not support it tonight.
Roll call vote: Doyle, yes; Guth, no; Hauenstein, yes; Rose, yes; Torre, yes. 4-1, motion carried.
Resolution #005, Series of 2025 -Amendments to the Land Use Code – Haley Hart and Luisa Berne
Ms. Hart introduced the item and said it is a response to Proposition #122. She also spoke about a
change to the Planning & Zoning meeting dates. They will now to be the first and third Wednesday of
the month. They took this in a resolution last week to P&Z which was approved.
Mayor Torre opened and closed the public hearing.
Councilor Rose motioned to approve; Councilor Guthseconded. Roll call vote: Doyle, yes; Guth, yes;
Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Resolution #007, Series of 2025 – Bow Tow Temporary Airlock – Ben Anderson
Mayor Torre and Mr. True said they are both conflicted and left council chambers.
Assistant City Attorney, Kate Johnson, entered the meeting.
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REGULAR MEETING ASPEN CITY COUNCIL JANUARY 14, 2025
Liz Savickas, Community Manager of the Bow Tow and Gravity Haus introduced herself. She said they
want to create a more warm and welcome space.
Grady Huff, owner’s rep for Gravity Haus, introduced himself and said they are seeking a solution for
comfort.
Mr. Anderson said this is a difficult case for staff. It’s just over 70 feet of proposed space. It’s a desire for
a buffer. The previous tenant of the space had an airlock. He said the code is very clear about this,
however, and we had been in a regular pattern of denial for these. The resolution is written in the
affirmative, but they are suggesting denial.
Councilor Doyle opened and closed the public hearing.
Councilor Rose motioned to approve; Councilor Guthseconded.
Councilor Hauensteinsaid he doesn’t want to approve something that is prohibited in code. He asked
for a temporary approval to allow for a permanent solution via resolution.
Ms. Johnson said it be set for a certain period of time. The term is for 5 years, and you can limit it to one
or two years and give it time, but there is a new council coming in as well.
Councilor Hauenstein said he can’t support as presented now. He would like to see a change in rules so
it’s an allowed use.
Councilor Doyle believes in air locks. It’s troubling to him that it’s against code. Things have change and
maybe we should revisit this issue.
Roll call vote: Doyle, yes; Guth, yes; Hauenstein, no; Rose, yes. 3-1, motion carried.
Council said they are all supportive of a work session for changing this.
ACTION ITEMS: GMQ’s Allotment Carryforward – Haley Hart and Ben Anderson
Resolution #002, Series of 2025 – Haley Hart and ben Anderson
Ms. Hart introduced the item and said that staff recommend approval, carrying forward none of the
unused 2024 growth management allotments. She said they have their standard annual allotment plus
discretionary 2024 carryforward allotment which equals the 2025 total development allotments.
Councilor Rose motioned to approve; Councilor Doyle seconded
Roll call vote: Doyle, yes; Guth, yes; Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carried.
Mr. True introduced the executive session.
Councilor Guth motioned to move into executive session, Councilor Doyle seconded. Roll call vote:
Doyle, yes; Guth, yes; Hauenstein, yes; Rose, yes; Torre, yes. 5-0, motion carriedat 7:40 p.m.
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REGULAR MEETING ASPEN CITY COUNCIL JANUARY 14, 2025
______________________
City Clerk, Nicole Henning
78
Staff Memo Ordinance #01, Series of 2025
Fee-in-Lieu Schedule, Annual Update
Page 1 of 3
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Haley Hart, Long Range Planner
THROUGH: Ben Anderson, Community Development Director
MEMO DATE: January 22, 2025
MEETING DATE: January 28, 2025
RE: First Reading, Ordinance #01, Series of 2025 – Affordable Housing
Fee-in-Lieu Annual Update
__________
REQUEST OF COUNCIL:
Staff requests City Council review and approve the proposed ordinance at First Reading.
Ordinance #01, Series of 2025, is the proposed annual update to the Affordable Housing
Fee-in-Lieu pursuant to Land Use Code (LUC) Section 26.470.050.E - Employee housing
fee-in-lieu payment.
SUMMARY AND BACKGROUND:
The Growth Management Quota System (GMQS) requires residential and nonresidential
development, which creates the demand for new employee housing to contribute that
housing proportional to its impact. This may be done through construction, deed-
restrictions of free-market units, or through payments to the City or to a developer of
affordable housing through the City’s Affordable Housing Credit (AHC) program. In 1985
Pitkin County and the City of Aspen first instituted fee-in-lieu (FIL) per full-time-employee
(FTE) as a tool in the provision of affordable housing.
From 2019 to 2021 Community Development Staff worked with consultants White and
Smith Planning Law Group and TischlerBise in drafting two Affordable Housing Fee-in-
Lieu Studies. Phase I, included a study that provided recommendations for improving the
methodology in calculating and updating the affordable housing FIL, included as Exhibit
B. Phase II, utilized the updated calculations and recommendations for a new fee-in-lieu
schedule and subsequent methodology for updating, included as Exhibit C.
The following methodology, as depicted in the Phase II report, was used to determine the
current FIL schedule:
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Staff Memo First Reading, Ordinance #01, Series of 2025
Fee-in-Lieu Schedule, Annual Update
Page 2 of 3
1) Utilizing public sector, private sector, and public private partnership affordable
housing projects, staff and the consultant team identified actual land and
construction (hard and soft) costs for a number of recent projects and land
purchases.
2) Costs for both land and construction were analyzed by project to the square foot
of net livable development and averaged across the projects. Using the Code
determined calculation of 400 square feet per full time equivalent (FTE) employee,
a total cost of constructing affordable housing per FTE was identified.
3) Utilizing the Aspen Pitkin County Housing Authority (APCHA) Guidelines,
established sales and rental rates by Category and bedroom count were used in a
calculation to identify the revenue per FTE. Two important assumptions were
included for the rental revenue stream: a) revenue (rental income) was calculated
over a 15-year period with a 2% annual increase in the rental rate; and b) rental
revenue was reduced by 50% to acknowledge common maintenance and
operations costs. Sales and Rental Revenue were then averaged per FTE.
4) The per FTE revenue amount for each Category (identified in #3 above) was
subtracted from the total development cost per FTE (identified in #2 above). The
remainder of each calculation subtracting the Category revenue from the total cost
per FTE results in the Category Fee-in-Lieu schedule above.
Council approved this work, and the new rates came into effect in May of 2021. The
adopted code language in 26.470.050, specifies that a full study shall be completed every
5 years, but that annual increase should be considered every January, using the National
Construction Cost Index from the Engineering New Record. This index calculates labor
and material costs in 20 cities across the nation. The last update was made in February
of 2024, based on the January 2024 ENR’s Construction Cost.
Between January of 2024 and January of 2025, the index reflects a 1.6% increase in
construction labor and material costs. Since the adoption of 2021 Phase II study
calculation method, the FIL has increased 14.5% based on the National Construction
Cost Index from the Engineering New Record. See Exhibit A for redlines and the
calculation methodology.
To understand the impact of this change:
Category 2 – Required for SF/Duplex Residential Mitigation
Current FIL per FTE = $424,288
Proposed FIL per FTE = $431,077
Ordinance #01 would implement this increase.
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Staff Memo First Reading, Ordinance #01, Series of 2025
Fee-in-Lieu Schedule, Annual Update
Page 3 of 3
CONCLUSION AND NEXT STEPS:
The passage of Ordinance #01, Series of 2025 satisfies the annual increase in FIL as
directed per Section 26.470.050.E - Employee housing fee-in-lieu payment.
FINANCIAL IMPACTS: N/A
ENVIRONMENTAL IMPACTS: N/A
ALTERNATIVES: N/A
RECOMMENDATIONS: Staff recommends that Council approve Ordinance #01, Series
of 2025, on First Reading.
CITY MANAGER COMMENTS:
EXHIBITS:
Ordinance #01, Series of 2025
A – Fee-in-Lieu Redlines
B – Affordable Housing Fee-in-Lieu Study, Phase I
C – Affordable Housing Fee-in-Lieu Study, Phase II
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Ordinance #01, Series of 2025
Affordable Housing Fee-in-Lieu Increase
Page 1 of 4
ORDINANCE #01
SERIES OF 2025
AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING CITY OF ASPEN LAND
USE CODE SECTION 26.470.050 – CALCULATIONS TO ADOPT A REVISED
AFFORDABLE HOUSING MITIAGTION FEE-IN-LIEU RATE SCHEDULE
WHEREAS, in 1985 Pitkin County and the City of Aspen instituted fee-in-lieu as an
alternative tool in the provision of affordable housing; and,
WHEREAS, pursuant to chapter 26.470, Growth Management Quota System, of the City
of Aspen Municipal Code, applicants may, under conditions specified by the Chapter, pay fees to
satisfy requirements to provide affordable or employee housing; and,
WHEREAS, pursuant to prior resolutions and ordinances of the City, the City Council has
historically established these fees, referred to in Chapter 26.470 as an affordable housing impact
fee, affordable housing mitigation fees, and cash-in-lieu payments; and,
WHEREAS, in 2019 and 2020 Community Development Staff worked with consultants
White and Smith Planning Law Group and TischlerBise in the drafting of the Affordable Housing
Fee-in-Lieu Study, Phase I, a study that provided recommendations for improving the
methodology in calculating and updating the Affordable Housing Fee-in-Lieu; and,
WHEREAS, The City elected to enact a new fee-in-lieu schedule and methodology for
update utilizing calculations and recommendation provided in the Affordable Housing Fee-in-Lieu
Study, Phase II, completed in April of 2021 by White and Smith Planning and Law Group and
TischlerBise; and,
WHEREAS, in Ordinance #10, Series of 2021, City Council adopted a new fee-in-lieu
schedule reflective of the recommendation presented in the Affordable Housing Fee-in-Lieu Study,
Phase II and,
WHEREAS, Land Use Code Section 26.470.050(E), Calculations - Employee housing fee-
in-lieu payment; prescribes that the fee-in-lieu rates shall be updated every five years and adopted
by city council ordinance, and that during intermediate years, the City may choose to update the
fee-in-lieu schedule, by ordinance, based on the change in the Engineering News Record National
Construction Cost Index; and,
WHEREAS, City Council may elect to update the fee-in-lieu schedule for 2025 based on
increases in the Engineering News Record, National Construction Cost Index which shows a 1.6%
increase from January 2024 to January 2025, totaling a 14.5% overall increase since the 2021
adoption of the Affordable Housing Fee-in-Lieu Study; and,
WHEREAS, at a regular meeting on January 28, 2025, City Council by a X to X (X-X) vote,
approved Ordinance #01, Series of 2025 on First Reading; and,
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Ordinance #01, Series of 2025
Affordable Housing Fee-in-Lieu Increase
Page 2 of 4
WHEREAS, at a regular scheduled meeting and properly noticed public hearing on February 11,
2025, Council heard presentation from city staff, considered public comment, and, City Council by a X to
X (X-X) vote, approved Ordinance #01, Series of 2025 on Second Reading; and,
WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary for the
promotion of public health, safety, and welfare; and
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO THAT:
Section 1: Adoption of updated Fee-in-Lieu rates.
Section 26.470.050.E shall be rescinded and readopted as follows:
26.470.050. Calculations
E. Employee housing fee-in-lieu payment. Whenever a project provides employee housing via
a fee-in-lieu payment, in part or in total, the amount of the payment shall be based upon the
following (fee-in-lieu is only allowed for Categories 1-4, Category 5 is included for any necessary
conversions between affordable housing unit types or for the purpose of conversions in the value
of Certificates of Affordable Housing Credits):
Fee-in-Lieu (per FTE):
Category 1: $467,236
Category 2: $431,077
Category 3: $395,829
Category 4: $346,808
Category 5: $286,689
Payment shall be calculated on a full-time-equivalent employee (FTE) basis according to the
Affordable Housing Category designation required by this Title. Unless otherwise stated in this
Title or in a Development Order, Fee-in-Lieu payments shall be collected by the City of Aspen
Building Department prior to and as a condition of Building Permit issuance.
The Fee-In-Lieu rates shall be updated every five years and adopted by City Council ordinance.
This 5-year update shall evaluate and include cost analysis of new private and public sector
affordable housing projects that have been completed or are otherwise appropriate since the
previous update. During the intermediate years, Community Development staff shall propose to
City Council an annual update (in January) to the Fee-in-Lieu schedule via Ordinance, utilizing
the most recent National Construction Cost Index provided by the Engineering News Record. If
the annual increase is approved, updated Fee-in-Lieu figures shall be rounded to the nearest dollar.
The annual update proposed in the intermediate years does not require a Policy Resolution prior
to First and Second Reading.
The following methodology (as depicted in a comprehensive report conducted by TischlerBise,
Affordable Housing Fee-in-Lieu Study, Phase II in Spring of 2021) was used to determine the
above Fee-in-Lieu schedule:
83
Ordinance #01, Series of 2025
Affordable Housing Fee-in-Lieu Increase
Page 3 of 4
1) Utilizing recent public sector, private sector, and public private partnership affordable
housing projects, staff and the consultant team identified actual land and construction (hard
and soft) costs for a number of recent projects and land purchases.
2) Costs for both land and construction were analyzed by project to the square foot of net
livable development and averaged across the projects. Using the Code determined
calculation of 400 square feet per full time equivalent (FTE) employee, a total cost of
constructing affordable housing per FTE was identified.
3) Utilizing the Aspen Pitkin County Housing Authority (APCHA) Guidelines, established
sales and rental rates by Category and bedroom count were used in a calculation to identify
the revenue per FTE. Two important assumptions were included for the rental revenue
stream: a) revenue (rental income) was calculated over a 15-year period with a 2% annual
increase in the rental rate; and b) rental revenue was reduced by 50% to acknowledge
common maintenance and operations costs. Sales and Rental Revenue were then averaged
per FTE.
4) The per FTE revenue amount for each Category (identified in #3 above) was subtracted
from the total development cost per FTE (identified in #2 above). The remainder of each
calculation subtracting the Category revenue from the total cost per FTE results in the
Category Fee-in-Lieu schedule above.
Section 2:
Any scrivener’s errors contained in the code amendments herein, including but not limited to
mislabeled subsections or titles, may be corrected administratively following adoption of the
Ordinance.
Section 3:
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the resolutions or ordinances repealed or
amended as herein provided, and the same shall be conducted and concluded under such prior
resolutions or ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held
invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining portions
thereof.
Section 5:
A public hearing on this ordinance was held on the 11th day of February, 2025, at a meeting of the
Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen,
Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be
published in a newspaper of general circulation within the City of Aspen.
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Ordinance #01, Series of 2025
Affordable Housing Fee-in-Lieu Increase
Page 4 of 4
INTRODUCED AND READ, as provided by law, by the City Council of the City of Aspen on the
28th day of January 2025.
ATTEST:
_____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
FINALLY, adopted, passed and approved this 11th day of February 2025.
ATTEST:
_____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
APPROVED AS TO FORM:
_____________________________
James R. True, City Attorney
85
Exhibit A – Fee-in-Lieu Redlines
Section 1: Adoption of updated Fee-in-Lieu rates.
Section 26.470.050.E shall be rescinded and readopted as follows:
26.470.050. Calculations
E. Employee housing fee-in-lieu payment. Whenever a project provides employee housing via a fee-in-
lieu payment, in part or in total, the amount of the payment shall be based upon the following (fee-in-lieu
is only allowed for Categories 1-4, Category 5 is included for any necessary conversions between affordable
housing unit types or for the purpose of conversions in the value of Certificates of Affordable Housing
Credits):
Fee-in-Lieu (per FTE): 2025: 2024: 2022: 2021:
Category 1: $467,236 $459,878 $442,616 $408,054
Category 2: $431,077 $424,288 $408,362 $376,475
Category 3: $395,829 $389,595 $374,971 $345,691
Category 4: $346,808 $341,346 $328,533 $302,879
Category 5: $286,689 $282,174 $271,582 $250,375
Payment shall be calculated on a full-time-equivalent employee (FTE) basis according to the Affordable
Housing Category designation required by this Title. Unless otherwise stated in this Title or in a
Development Order, Fee-in-Lieu payments shall be collected by the City of Aspen Building Department
prior to and as a condition of Building Permit issuance.
The Fee-In-Lieu rates shall be updated every five years and adopted by City Council ordinance. This 5-year
update shall evaluate and include cost analysis of new private and public sector affordable housing projects
that have been completed or are otherwise appropriate since the previous update. During the intermediate
years, Community Development staff shall propose to City Council an annual update (in January) to the
Fee-in-Lieu schedule via Ordinance, utilizing the most recent National Construction Cost Index provided
by the Engineering News Record. If the annual increase is approved, updated Fee-in-Lieu figures shall be
rounded to the nearest dollar. The annual update proposed in the intermediate years does not require a Policy
Resolution prior to First and Second Reading.
The following methodology (as depicted in a comprehensive report conducted by TischlerBise, Affordable
Housing Fee-in-Lieu Study, Phase II in Spring of 2021) was used to determine the above Fee-in-Lieu
schedule:
1) Utilizing recent public sector, private sector, and public private partnership affordable housing
projects, staff and the consultant team identified actual land and construction (hard and soft) costs
for a number of recent projects and land purchases.
2) Costs for both land and construction were analyzed by project to the square foot of net livable
development and averaged across the projects. Using the Code determined calculation of 400 square
feet per full time equivalent (FTE) employee, a total cost of constructing affordable housing per
FTE was identified.
3) Utilizing the Aspen Pitkin County Housing Authority (APCHA) Guidelines, established sales
and rental rates by Category and bedroom count were used in a calculation to identify the revenue
per FTE. Two important assumptions were included for the rental revenue stream: a) revenue (rental
income) was calculated over a 15-year period with a 2% annual increase in the rental rate; and b)
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Exhibit A – Fee-in-Lieu Redlines
rental revenue was reduced by 50% to acknowledge common maintenance and operations costs.
Sales and Rental Revenue were then averaged per FTE.
4) The per FTE revenue amount for each Category (identified in #3 above) was subtracted
from the total development cost per FTE (identified in #2 above). The remainder of each
calculation subtracting the Category revenue from the total cost per FTE results in the
Category Fee-in-Lieu schedule above.
Methodology for FIL increase
Engineering News Record Construction Cost Index
A survey of prices in 20 cities for:
• 200 hours of construction labor
• 25 cwt of structural steel
• 1.128 tons of Portland cement
• 1088 board feet of 2x4 lumber
Source: https://www.enr.com/economics/historical_indices/construction_cost_index_history
1.6% Increase from January 2024 to January 2025:
(13731.60 – 13515.02) x 100
13515.02
= 216.58 x 100
13515.02
= 0.016 x 100
= 1.6% increase
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FEE-IN-LIEU
ASSESSMENT AND
RECOMMENDATIONS REPORT
City of Aspen
March 13, 2020
CITY COUNCIL REVIEW DRAFT
THIS REPORT IS IN DRAFT FORM FOR DISCUSSION ONLY.
IT WILL BE REVISED BASED ON CITY INPUT AND DIRECTION.
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TABLE OF CONTENTS
I. EXECUTIVE SUMMARY ...........................................................1
A. B A ckground .....................................................................1
B. The Fee-in-L ieu c AL cuLATion ..............................................3
c. S cope o F W ork ...............................................................3
1. Methodology Issues: ........................................................3
2. Policy Issues: ...................................................................4
d. S ummAry o F recommend ATion S ............................................4
1. Methodology Recommendations .......................................4
2. Policy Recommendations ..................................................6
e . n ex T ST epS .......................................................................7
II. INTRODUCTION ...................................................................10
A. h iST ory And overvie W oF AFFordABLe houSing p rogr A m .....10
1. General Overview ..........................................................10
2. Deed Restricted Units Created To-Date ...........................11
3. Fee-in-Lieu Collections To-Date ......................................12
4. Status of the Affordable Housing Credits Program ............13
B. hiST ory oF T he Fee -in-L ieu progrA m .................................14
1. Fee-in-Lieu: 1985-2015 .................................................14
2. The Affordable Housing Credit Program ...........................15
3. Public & Private Revenues through Fee-in-Lieu & Credits ..16
c. reporT o Bjec Tive S .........................................................17
III. METHODOLOGY ISSUES AND RECOMMENDATIONS .........19
A. m e ThodoLogy overvieW ..................................................19
B. curren T Fee -in-Lieu ........................................................20
1. The 2015 Update to the Fee-in-Lieu ................................20
2. 2018 Adjustment to the Fee-in-Lieu ................................23
c. m e ThodoLogy iSSueS ......................................................25
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1. Whether the current methodology for calculating the Fee in Lieu
adequately captures the full cost impact to provide affordable
housing in the City of Aspen?
a) Discussion ............................................................26
b) Recommendation ..................................................28
2. Whether the cost components in the fee-in-lieu calculation need
to be adjusted to reflect costs specific to Aspen’s construction market?
a) Discussion ............................................................29
b) Recommendation ..................................................34
3. Whether an alternative methodology for calculating the annual fee adjustment may more accurately reflect increases in construction costs in the area?
a) Discussion ............................................................35
b) Recommendation ..................................................36
4. Whether the current fee-in-lieu affects the market and
sustainability of the Affordable Housing Credit System? Is
the fee-in-lieu amount reflective of the actual cost to deliver
affordable housing by the private sector?
a) Discussion ............................................................38
b) Recommendation ..................................................41
d. A ddi Tion AL m e ThodoLogic AL conSider AT ionS .......................42
1. Employee Generation Rates and Mitigation Rates ............42
a) Employee Generation Rates ...................................42
b) Residential and Non-Residential Mitigation Rates ...42
c) Occupancy Standard (employees per unit) ..............43
IV. POLICY ISSUES AND RECOMMENDATIONS .......................46
A. p o L icy o vervie W .............................................................46
B. LegAL BA ckground & revie W ............................................46
1. Generally .......................................................................46
2. The Legal Framework for Local Governments ..................47
a) Nomenclature .......................................................47
b) Constitutional Considerations ................................48
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c) State Law Considerations .....................................49
c. p o L icy i SSue S .................................................................51
1. What are the policy ramifications and legal issues surrounding the fee-in-lieu option as a component of the City’s current
housing mitigation program?
a) Discussion ............................................................51
b) Recommendation ..................................................52
2. What are the policy ramifications and legal issues with regard
to the thresholds and conditions under which an applicant may
pay fee-in-lieu as a compliance options?
a) Discussion ............................................................52
b) Recommendation ..................................................53
3. What are the implications of the City’s fee-in-lieu thresholds on
the City’s housing credit program?
a) Discussion ............................................................54
b) Recommendation ..................................................54
d. A ddi Tion AL p o L icy c on S ider ATion S .....................................54
1. Income Categories of Affordability ...................................54
2. Exemptions and Applicability ...........................................55
3. Mitigation Review Processes & Credit Issuance ................55
V. REPORT RECOMMENDATIONS & NEXT STEPS ....................57
A. in generAL .....................................................................57
B. m e ThodoLogy recommend ATion S .......................................59
c. p o L icy r ecommendAT ionS .................................................60
d. T he B ig p icT ure ..............................................................61
APPENDIX A: GLOSSARY AND LIST OF ABBREVIATIONS ........63
APPENDIX B: CASE STUDIES ...................................................65
APPENDIX C: CONSTRUCTION COST DETAIL .........................91
APPENDIX D: LAND ACQUISITION COSTS DETAIL .................93
APPENDIX E: DEVELOPMENT COST WORKSHEET ..................95
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I. EXECUTIVE SUMMARY
A. BACKGROUND
Since the 1980s, Aspen has been at the forefront of the “affordable housing challenge” that
eventually has confronted much of the mountain west and, in fact, much of the country in
the last decade. Early on, the City adopted fee-in-lieu options for developers to mitigate the
impact of their new square footage had on the need for
additional housing that was available to the workforce it
created. Though the demand for affordable housing in
Aspen remains high, the program has been successful
in many regards. Since 2000 alone, 586 affordable
units have been constructed under the City’s program.
Nonetheless, the challenge of keeping up continues.
The City has made a number of structural and
methodological changes over the years, but a constant
has been its use of the fee-in-lieu as a housing mitigation option available to the development
community, which for many is a much simpler and faster way of doing so. The fee-in-lieu has
been updated a number of times and currently is as follows, by income category, per full-time
equivalent (FTE):
Category 1 - $381,383.31
Category 2 - $342,599.02
Category 3 - $306.549.65
Category 4 - $238,687.04
Category 5 - $168,289.60
Category 6 - $142,114.19
Category 7 - $111,438.36
However, like most communities with programs like Aspen’s, the City recognizes that the
timeframe between payment of a fee-in-lieu and the construction of housing is typically
much longer than for housing constructed at the time of development. For this reason, given
the urgency of its housing challenge, the City eventually incentivized constructed housing
over fee-in-lieu payments, but reducing the threshold at below which by-right fee-in-lieu is
permitted. This created a private sector credit-driven system, by offering other mitigation
compliance alternatives that are more likely to result in more housing more quickly.
Construction costs per square
foot of housing built by the City
are estimated today to be about
40% higher than in 2015.
This represents roughly an 8%
average increase each year.
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As a precedent to an anticipated update to the fee-in-lieu study, the City commissioned White
& Smith, LLC and TischlerBise to evaluate certain policy-based and methodological aspects
of its current program to serve as a guide to the update. This report sets out our findings and
recommendations for Tasks 1 through 3, or Phase I of a five-task project, as follows:
Phase 1
Task 1 Review Current Program & Conduct Stakeholder Meetings:
Performed in September through November 2019
Task 2 Draft Assessment & Recommendations Report:
Performed November through March 2020
Task 3 Present Assessment & Recommendations Report and Finalize
Recommendations:
March 2020
Phase 2
Task 4: Prepare Updated City Affordable Housing Fee-in-Lieu Program:
TBD
Task 5: Additional On-Site Meetings:
TBD
The objectives for the Tasks 1-3 are to:
1. Identify a methodology for ensuring
construction and land costs used to calculate
the fee-in-lieu are current, complete, and
reflective of the Aspen environment;1
2. Assess current policies related to impact of
the fee-in-lieu option on the resultant housing
actually constructed;
3. Evaluate the legal aspects of the current fee-
in-lieu, its qualifying thresholds, and of a policy
which would require built housing, instead of
fee-in-lieu, to meet mitigation regulations; and
4. To establish an efficient, defensible, and
transparent means of annually adjusting
the fee-in-lieu to stay current with localized
construction and land costs.
1 Note that the Task 4 fee-in-lieu calculation study will include components in addition to construction costs,
including revenue streams available to the developer (currently the City), which may result from future sales,
rentals, and other sources.
This Report provides
guidance to inform the City’s
next update to its fee-in-lieu
schedule. It does not include
an updated fee calculation.
The amount of an updated
fee-in-lieu can only be
determined after a full study
is completed.
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In addition, during our discussions with City Council, City staff, developers, and other
stakeholders at the beginning of this process, a number of additional issues were raised,
which we have incorporated into our recommendations for the City’s consideration prior to
and during the update study.
Finally, we have evaluated the options the City might consider for approaching any changes
to its methodology or housing mitigation policies. We did this by surveying a number of other
jurisdictions around the country and assessing what they are doing in light of what Aspen may
consider doing. Our findings from this review are summarized in Appendix B.2
B. THE FEE-IN-LIEU CALCULATION
The City’s current fee-in-lieu schedule, prepared in 2015 and updated in 2018, is based on
a “cost-driven” approach, which resulted from extensive evaluations of alternative iterations
calculation methodologies. A prior study, in 2012, outlined a “market-affordability gap”
approach, which as among the options considered at that time.
Opting for the “cost-driven” approach, the City’s fees reflect costs estimates of several City
housing projects that were pending and in the preliminary stages of design at that time, and
appears to have been calculated as the difference between:
1. the City’s total development costs of an affordable housing unit; and
2. the deed-restricted sale price or rental revenue stream anticipated from the unit.
The revenue stream available to the City may include components not available to the private
sector, including tax credits, low-interest loans, and grants.
This difference between development costs and future revenue streams was seen as the
“subsidy” necessary to cover the City’s net costs to develop the housing stock it anticipated
at that time, in response to the additional housing demand generated by those who paid the
fee-in-lieu.
C. SCOPE OF WORK
This report answers four specific questions related to methodology and three related to policy
or legal matters. We also have provided general guidance to the city attorney’s office and
city staff related to the legal issues that surround fee-in-lieu programs nationally. The specific
methodological and policy questions we addressed in Tasks 1-3 are as follow.
1. Methodology Issues:
1. Whether the current methodology for calculating the fee-in-lieu adequately
2 A glossary of terms and list of abbreviations is provided as Appendix A.
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captures the full and total cost impact to provide affordable housing in the City
of Aspen?
2. Whether the cost components in the fee-in-lieu calculation need to be adjusted
to reflect costs specific to Aspen’s construction market?
3. Whether an alternative methodology for calculating the annual fee adjustment
may more accurately reflect increases in construction costs in the area?
4. Whether the current fee-in-lieu affects the market and sustainability of the
Affordable Housing Credit System? Is the fee-in-lieu amount reflective of the
actual cost to deliver affordable housing by the private sector?
2. Policy Issues:
1. What are the policy ramifications and legal issues surrounding the fee-in-lieu and
affordable housing credit options as components of the City’s current program?
2. What are the policy ramifications and legal issues surrounding the
circumstances under which an applicant may pay fee-in-lieu as a compliance
option?
3. What are the implications of the City’s fee-in-lieu thresholds on the City’s
housing credit program?
This report addresses each of these areas and offers recommendations for how each should
be approached during the City’s fee-in-lieu update study. Those recommendations are
summarized below.
D. SUMMARY OF RECOMMENDATIONS
Our recommendations and underlying analyses are set out in full in the report, but are
summarized as follows:
1. Methodology Recommendations
1. Use a “cost-driven” approach to update the fee-in-lieu calculations, in order to
capture full net costs of construction.
The update should include updated cost figures based on recent and
representative City affordable housing projects, the City’s share of costs to
development, and applicable revenue assumptions based on income levels
targeted for affordable units.
If permissible, determine whether it is appropriate to consider the City’s costs for
staff time, overhead, and other related “soft” costs.”
Assuming fee-in-lieu revenues continue to be used solely for City projects,
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actual costs should be reduced by anticipated revenues from sales, rentals, and
other sources that will accrue to the City.
The formula is depicted graphically as follows:
Components of the formula shown in orange above reflect variables that if
changed would impact the fee-in-lieu amounts (see Methodology
Recommendation #6, below). These variables will be revisited and confirmed
during the Task 4 full fee study update.
2. Calculate land and construction costs separately during the update and annual
adjustments. Despite the challenge of incorporating land costs into a static
formula, assumptions can be made, based on the anticipated end use of fee
revenues. Use of the fees, as to land, will vary according to the location of lands
anticipated for the City’s development of affordable housing.
3. Calculate costs and revenues “per square foot” to set the fee-in-lieu and to
simplify the initial calculation, as well as annual adjustments. The cost per
square foot can then be shown by land use type or “per FTE,” as needed.3 For
consistency, the same square footage factor should be used between bedrooms
and FTEs mitigated, for both the fee-in-lieu and AHC program.
3 The current Land Use Code establishes a conversion factor of 400 square feet of net livable area per FTE.
See § 26.470.050. Therefore, a simple calculation emerges, using the rounded down gross cost per square
foot from recent City affordable housing projections, based on land and construction.
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4. The City should base its annual fee-in-lieu adjustments on the Engineering News
Record (ENR) Construction Cost Index (CCI)4. This approach will reasonably
capture Aspen’s market trends and realities, particularly if:
a. the National ENR CCI is used, not the city-specific CCI, which is
susceptible to localized price fluctuations due to labor markets,
weather, and other trends, which may not reflect the unique location
and environment of Aspen; and
b. the City makes the annual adjustment consistently each year.
As noted in 2. above, land costs should be addressed separately during annual
adjustments, in order to better reflect Aspen-specific changes in construction
costs.
5. While the amount of the fee-in-lieu may impact the value of private market
credits in some instances, the connection between the two could not be
established strongly enough to amount to a recommendation regarding the fee-
in-lieu update.
6. Revisit the following component variables of the housing mitigation program, for
verification or update:
a. employee generation rates;
b. residential and nonresidential mitigation rates; and
c. employees per residential dwelling unit (i.e., square feet of dwelling unit
per employee).
2. Policy Recommendations
1. Retain the fee-in-lieu option. Monitor legislative or judicial changes during the
City’s nexus study update.
2. Maintain or increase, but do not decrease, availability of the fee-in-lieu option as
an alternative means of complying with the GMQS.
3. Future policies and methodologies should be based on legal defensibility,
fairness, and effective production of affordable housing, and not the amount of
the fee-in-lieu relative to the value of affordable housing credits.
4. Consider whether revisions to components of the housing mitigation program
would increase the availability of constructed affordable housing for Aspen
employees, including:
a. whether additional income categories of affordability should be
considered as qualifying mitigation;
4 ENR provides two main cost indices: Construction Cost Index (CCI) and the Building Cost Index (BCI). Labor
assumptions vary between the two indices: CCI includes 200 hours of common labor at the 20-city average
of common labor rates; BCI includes 68.38 hours of skilled labor at the 20-city average rates of bricklayers,
carpenters, and structural ironworkers. Building materials are the same in both indices.
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b. whether existing exemptions and applicability criteria continue to meet
City objectives;
c. whether current processes for mitigation approval, qualifying thresholds,
and credit issuance and timing, can be revamped to encourage greater
participation or efficiency of process.
In addition, the GMQS and AHC program should be
simplified where possible and be revised to remain
consistent with, and not redundant of, APCHA Guidelines.
Finally, there are several additional areas we recommend
the City revisit prior to or during the update, which
address some “structural” aspects of the City’s program.
These surfaced during our kick-off meetings with local
developers, community members, the City Council, and
staff in November 2019 and during our review of the City’s
program over the last four months. Our conversations with
stakeholders have been wide-ranging and very informative, providing useful guidance in
the development of this report. These ten areas are listed in the Next Steps sections which
follows.
E. NEXT STEPS
We recommend the City prepare a full study to updated the fee-in-lieu schedule.
However, as this study has shown, there are many overarching considerations to be
made when updating a fee-in-lieu study. For example, our recommendations assume fee
revenues will continue to be used solely for affordable housing projects the City develops, as
opposed to the private-sector, which current derives its subsidy from the City’s Affordable
Housing Credit program. If the City were either (a) to use fee-in-lieu revenues to fund private
development projects; or, conversely (b) to no longer maintain the credit program, then
the cost assumptions that are the subject of this report would be revised to reflect such
significant policy changes.
For these reasons, we recommend the City further consider whether:
1. the role or levels of participation of the public and private sectors in the updated
program should be evaluated, to ensure fee expenditures remain consistent with
study cost assumptions;
2. the fee-in-lieu will continue to be used solely for City projects or will be shifted at
all to private sector projects;5
5 See Boulder County’s competitive bid process for disbursing county sales and use tax revenues to non-
profits and housing authorities, as a resource or guidance.
EXECUTIVE SUMMARY
While the primary objective
of updating the fee-in-
lieu is to address cost and
revenue assumptions, the
City also should revisit
other components, including
employee generation rates,
mitigation rates, and
occupancy standards.
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3. the fee-in-lieu and AHC programs each remain an effective and viable means of
generating new affordable housing;
4. bonuses or waivers should be used to incentivize private sector participation in
the AHC program or to address issues of voluntariness; 6
5. dormitory or other housing types are appropriate forms of mitigation today;
6. the geographic areas within which qualified mitigation is eligible should be
expanded or revised; and
7. the City should take on an increased role in administering and monitoring the
AHC program.
Having considered and, to the extent possible, resolved some of these policy areas, the
City will be prepared to undertake the Task 4 fee-in-lieu study update that incorporates the
recommendations outlined in this report and summarized earlier.
6 The district court, in Meyerstein v. City of Aspen, found that a deed restricted unit was the result of a
voluntary agreement, since it was entered into freely by the City and a private party without evidence of
threat, duress, or lack of reasonable alternatives. See No. 13CA0330, 5-6 (Jan. 20, 2014) on remand from
Meyerstein v. City of Aspen, 282 P.3d 456 (Colo. Ct. App. 2011).
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INTRODUCTION
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II. INTRODUCTION
A. HISTORY AND OVERVIEW OF AFFORDABLE HOUSING PROGRAM
1. General Overview
For more than 40 years, Aspen has been a national leader in responding to the challenges
of housing affordability. As real estate prices began to rise in the 1970s, the City of Aspen,
in coordination with Pitkin County, began implementing innovative solutions in the provision
of deed-restricted, affordable housing units for residents and the demands of a growing
workforce. Among these innovative approaches have been:
»Inclusionary zoning requirements through the City’s Growth
Management Quota System
»Cash contributions for affordable housing for commercial and
residential development (fee-in-lieu)
»The creation of the Aspen Pitkin County Housing Authority (APCHA)
»Policies and purchase decisions in support of land banking
»Accessory Dwelling Units
»Real estate transfer tax in support of affordable housing
»Sales tax in support of affordable housing
»Partnering with the private sector in the development of affordable units
»City development of units specifically for city employees
»Affordable Housing Credits Program
Combined, these programs have resulted in approximately 3,000 units that currently make up
APCHA’s deed-restricted housing inventory.
The City’s current system is implemented through its Growth Management Quota System
(GMQS) (see § 26.470, Land Use Code) and Certificates of Affordable Housing Credit program
(§ 26.540, Land Use Code). The GMQS requires residential and nonresidential development,
which creates the demand for new employee housing to contribute that housing proportional
to its impact; that is, based on the number of full-time equivalents, for “FTEs,” the
development will need to serve it. This may be done through construction, deed-restrictions
of free-market units, or through payments to the City or to a developer of affordable housing
through the City’s Affordable Housing Credit (AHC) program.7
7 A glossary of terms and list of abbreviations is provided as Appendix A.
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This report is the result of the City Council’s interest in
evaluating possible revisions or updates to the City’s
program, which may increase the production of affordable
housing and make the process simpler and more
efficient, while ensuring the program’s continued legal
defensibility. The report recommends several updates
to the City’s program and methodology to address these
considerations.
In order to provide some context for these
recommendations, the following sections describe the
extent of the City’s progress in tackling its affordable
housing challenges, including a description of the deed-
restricted units built within the City, as well as a summary
of those created by private developers in exchange for
credits, under section 26.540, Land Use Code.
2. Deed Restricted Units Created To-Date
The following represent several of the program’s successes since 2000:
On-site housing projects completed as a component
of a private development:
1. Aspen Valley Hospital – 18 units
2. South Aspen Street Townhomes – 16 units
City led and funded projects (including units for City employees):
1. Burlingame Phases 1 and 2A, and 2B – 258 units
(179 complete, 79 in progress)
2. Burlingame Ranch Seasonal Housing – 69 units
3. Truscott – 99 units
4. 7th and Main Affordable Housing – 11 units
City led and funded projects – for housing City employees:
Aspen Police Department – 8 units
Projects developed by the private sector in partnership with the City:
1. 517 Park Circle – 11 units
2. 488 Castle Creek – 24 units
3. 802 W. Main – 10 units
Programmatic changes are
recommended to:
Ensure Updated Fees-in-Lieu
reflect current, actual, localized
costs of Housing Construction
Increase transparent,
simplicity, and efficiency
Clarify the roles of the City’s
Fee-in-Lieu and private sector
Affordable Housing Credits
Achieve an effective and
easy-to-administer Annual
Adjustment Methodology
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Housing projects resulting from the Affordable Housing Credits Program (projects
for which the City issued credits to private-sector developers of affordable
housing):
1. 301 W. Hyman – 8 units
2. 518 W. Main – 11 units
3. 412 AABC – 8 units
4. 404 Park – 28 units (in progress)
5. 834 W. Hallam – 7 units (in progress)
6. 210 W. Main – 8 units (in progress)
While the program has been successful in responding to the need for development of
affordable housing, the need for new units continues to grow. The City of Aspen is committed
to building on the existing strengths of the program as well as the pursuit of new and
innovative approaches.
3. Fee-in-Lieu Collections To-Date
The focus of this report is on the fee-in-lieu component of
the City’s program. It is useful to understand the extent
of fee-in-lieu collections to this point and the manner in
which those fees are used to produce housing.
The City of Aspen’s “150 Fund” reflects the revenues and
expenditures related to affordable housing development
that is not specifically created for City employees. The
primary revenue streams include a sales tax dedicated
to affordable housing; a real estate transfer tax that
supports affordable housing development; sales of
developed units; investment income; lease revenues; and
germane to this study, fee-in-lieu collections.
Expenditures, including but not limited to fee-in-lieu collections,
have included land acquisitions, construction costs, financing
support, maintenance and renovation costs.
Over time – and as a direct consequence of the policies related to
fee-in-lieu and the AHC program – the relative importance of fee-in-
lieu to the 150 Fund has declined.
In 2011, collections ($2.925M) made up nearly 30% of the total
revenue ($9.752M) of the 150 Fund. In 2018, this percentage had
dropped to just less than 3% with collection ($363K) contributing
negligibly to the total revenue ($12.324M).
“150 Fund” Revenue Sources
Sales Tax
Real Estate Transfer Tax (RETT)
Fees-in Lieu
plus Proceeds from:
Unit Sales
City Investments
City-held Leases
Recent “150 Fund”
Expenditures
Land Acquisition
Construction Costs
Financing Support
Maintenance &
Renovation
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4. Status of the Affordable Housing Credits Program
The following table reflects the status of the Affordable Housing Credit (AHC) program since
its inception in 2010. It is important to note that all figures have been converted to the
Category 4 level of affordability for the purposes of a consistent analysis.
Total Credits
Generated to date
Credits Extinguished to
date
Credits Remaining/
Not Extinguished to
date
Approved Credit
Generating Projects
–
Not Complete
These credits
were generated
by the building
of new, deed
restricted
affordable
housing units or
the buy down of
free-market units
and conversion
to deed restricted
units.
There have been
commercial and
free market, multi-
family that have
extinguished credits,
but a significant share
has been extinguished
for the development/
redevelopment of single
family residential and
the removal of ADUs.
There are a few
certificates in large
denominations,
but many of the
remaining credits are
in smaller increments
resulting from the use
of fractional or partial
credits.
There are three
projects that have
full land use approval
and are awaiting
issuance of a building
permit. They are:
404 Park
834 W. Hallam
210 W. Main
93.35 FTE 54.74 FTE 38.61 FTE 109 FTE
One of the difficulties in evaluating the market for affordable housing credits is understanding
the role of timing.
Due to low building permit issuance for new nonresidential projects in recent years, the
extinguishment of certificates has been gradual and dependent on single-family development
and redevelopment. However, there are several large-scale commercial projects that are in
the development pipeline at various stages of land use approval and building permit review,
which City staff expects to seek AHC credits to meet GMQS mitigation regulations. As shown
above, 38.61 FTE credits are outstanding and held by private parties. Today, this represents
the extent of affordable housing credits available on the free market.
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If these commercial projects progress towards
completion, the availability of credits for required
mitigation will come into question soon.
The sum of remaining credits that have not been
extinguished and of approved credits projects that are
not yet complete, provide a potential credit supply of
roughly 130 FTE – Category 4. When Lift One Lodge
and Gorsuch Haus are completed – those projects
combined will require roughly 61 FTE, Category 4.
B. HISTORY OF THE FEE-IN-LIEU PROGRAM
1. Fee-in-Lieu: 1985-2015
The earliest days of Aspen’s efforts to respond to the community’s affordable housing needs
required the provision of constructed units – either on-site or off-site. In 1985 or 1986,
Pitkin County and the City first instituted the fee-in-lieu per FTE (full-time equivalent) as an
alternative tool in the provision of affordable housing. At the reduced costs of building in the
mid-1980’s, the collected amounts would likely have provided only a partial supplement to the
development of needed affordable housing units.
In the mid-1990s, fee-in-lieu calculations were established using actual costs from affordable
housing developments that had been completed in the Aspen area. Importantly, land costs
were included in these figures – and consequently, there were significant increases to the fee-
in-lieu as land values began their rapid rise.
In 2001, a new schedule was implemented that represented the largest increase to fee-in-lieu
to date – a 50% increase from 1999 figures.
From 2001 through 2015, no new calculations were considered, rather, fee-in-lieu amounts
were increased annually using the Consumer Price Index (CPI) or 3% - whichever was greater.
In 2012, the City had a new fee-in-lieu study completed by RRC Associates and Rees
Consulting to evaluate various methods for calculation of housing mitigation fee-in-lieu
rates and annual adjustments into the future. After much discussion with Council and
consideration of several methodologies (that provided a full range of fee-in-lieu figures), a new
fee-in-lieu schedule was adopted in October of 2015.
The methodology behind this calculation blended the inclusion of historic land costs for the
City in acquiring land for affordable housing projects – and estimated future construction
costs of four projects planned at that time – Burlingame Phase 2B, 802 W. Main, 517 Park
Circle and 488 Castle Creek at an assumed density of 62.5%. Since these projects had not
yet been constructed, these costs for the fee-in-lieu were projected estimates only.
Today, there are approximately
38 affordable housing credits
available in the private market.
An additional 109 credits are
anticipated upon completion of
2 pending affordable projects.
Projects are pending today that
will demand about 61 credits.
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As part of the 2015 adoption, it was determined that future updates to the fee-in-lieu would
be calculated using a construction cost index provided by the Engineering News Record
(ENR). In February 2018, using national rates from the ENR – the fee-in-lieu schedule was
increased by 7%. The current fee-in-lieu schedule (based on the 2018 update) follows:
Per FTE: Category 1 - $381,383.31
Category 2 - $342,599.02
Category 3 - $306.549.65
Category 4 - $238,687.04
Category 5 - $168,289.60
Category 6 - $142,114.19
Category 7 - $111,438.36
2. The Affordable Housing Credit Program
In 2010, the City of Aspen, working with local developer Peter Fornell, created a unique
program to encourage the involvement of the private development community in the creation
of affordable housing units. While Aspen had been a leader in the development of employee
housing since the late 1970s, the Affordable Housing Credit (AHC) program launched Aspen’s
housing program in an entirely new direction. This program is dependent on three central
ideas.
First is the idea (and therefore the necessary direct nexus) that the building of any new square
footage generates new employees and the need to house employees. Second, Aspen has a
long-established history of requiring developers to mitigate for this generation of employees
when new development occurs. Lastly, through a series of studies over the years, Aspen
has established a codified dollar figure of what it costs to create housing for each employee
generated.
With this necessary foundation in place, the basic idea of the AH Credit program is simple: if
a developer creates an approved, deed restricted affordable housing unit, a credit is issued to
the developer that can then be sold, on the private market, to another developer who uses the
credit to provide required mitigation for employee generation on a separate project.
The value of the credit, which can be sold on the free market, becomes an important revenue
stream to the builder of that unit (as the initial credit-holder), to supplement future rental
or sales income. Each of these revenue sources increases the financial viability of private
parties developing affordable housing units. Since the creation of the AHC program, the
AHC program has been an important tool in adding to the deed-restricted, employee housing
stock in Aspen even as employee units continue to be generated through other available
alternatives, as well.
INTRODUCTION
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3. Public and Private Revenues through Fee-in-Lieu and Credits
Today, revenues from the fee-in-lieu program fund the City’s housing construction efforts.
Revenues from the credit program flow directly to the private sector builder of affordable
housing. No fee-in-lieu monies are provided directly to the private parties developing
affordable housing for credits. The fee-in-lieu and AHC program are two distinct alternatives
to providing built affordable housing under the GMQS.
However, in 2010 and even more restrictively in 2015, the City Council established a
maximum threshold for the use of fee-in-lieu by right. Today, that threshold is 0.1 FTE. This
means that a development that generates less than 0.1 FTE can opt for the fee-in-lieu option
by right, without going to the Planning Commission or City Council for approval.
To give a sense of what kind of development would remain under this threshold – a residential
remodel that adds 600 square feet of floor area would require 0.096FTE and would be allowed
to pay by right. Development beyond the 0.1 FTE threshold would be required to extinguish
affordable housing credits – or provide on-site or off-site units – to mitigate under the GMQS,
unless it received approval by City Council to use fee-in-lieu.
If a project will create greater than 0.1 FTE and wishes to exercise this compliance option,
there is a path provided by the Land Use Code to do so and requires a public hearing
and City Council action. However, since Council has preferred mitigation that results in
constructed units more quickly, the criteria for receiving Council approval are limited to
showings of impracticability and good-faith efforts to achieve other options. To date, no
applicant creating greater than 0.1 FTE has pursued approval by the City Council.
Combined, these provisions work to create the value behind the AHC program and the
incentive for private developers to pursue affordable housing projects for which the City will
issue credits.
Lastly, in describing the relationship between fee-in-lieu and the credits program, it is
interesting to note that despite their distinctive roles and legal status, anecdotally, it appears
the sales price for credits in the market has roughly tracked City-adopted fee-in-lieu amounts.
It is not entirely clear what has caused this outcome, since the two components are not tied
together in the market under any City regulations. It
is the case, however, that nonresidential developers
subject to GMQS mitigation regulations, may view
the fee-in-lieu as a readily available alternative to
purchasing credits – whether that is true or not – and
this has had the impact of reducing demand for credits
at higher prices.
In any case, there has been a sense or expectation
among some that the amount of the fees-in-lieu being
paid should also remain closely tied to the current actual costs to develop affordable housing,
since the credit values are an important component of the incentive to private developers in
choosing to build affordable rather than free-market units in the community.
INTRODUCTION
Some believe it important that
fee-in-lieu track closely to
private market credits and that
maintaining up-to-date, localized
construction costs is critical to
doing so and for sustaining private
market participation in the City’s
affordable housing efforts.
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c. report oBjectiveS
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C. REPORT OBJECTIVES
The City Council has directed staff to assess the current legal and methodological status of
the City’s existing affordable housing program. The objectives of Council are to seek ways
of increasing affordable housing production and availability, by evaluating methodological
alternatives, updating and localizing construction and land costs, and providing guidance
regarding the role of fee-in-lieu in its overarching efforts and the relationship between fee-
in-lieu and affordable housing credits. It is also
important that applicable processes be transparent,
easy-to-follow, and fair.
To meet these objectives, we have reviewed and
evaluated other housing mitigation programs in
Colorado and around the country, allowing us to
offer alternatives for the City’s consideration, both as
to policy and methodology. Of those reviewed, we
have set out a detailed description of 6 programs that
face affordable housing crises similar to Aspen’s and
which give a range of alternative ways of addressing
them. These are set forth in Appendix B.
Based on these “case study” evaluations, we have
prepared then set forth policy and methodological recommendations for the City to consider
in its efforts to increase affordable housing availability. The case studies are set forth in the
section below. Following those, is are the discussions of the current and recommended
methodological and policy-based aspects of the City’s fee-in-lieu program.
Objectives
Increase Affordable
Housing Availability
Ensure Methodology is current,
defensible, and Aspen-specific
Annual Adjustments should
reflect total costs and be easy
to administer
Clarify Relationship between
fee-in-lieu and Credits
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METHODOLOGY ISSUES
AND RECOMMENDATIONS
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III. METHODOLOGY ISSUES AND
RECOMMENDATIONS
A. METHODOLOGY OVERVIEW
The fee-in-lieu is one of several options allowed by the City’s GMQS to mitigate affordable
housing obligations generated by the development of market rate residential and
nonresidential development. Mitigation measures are described in the Aspen Pitkin County
Housing Authority (APCHA) Guidelines as follows:
The APCHA Board has prioritized affordable housing mitigation options available to private
sector property developers in the following order:
1. On-site deed-restricted housing units
constructed or converted next to or attached
to the proposed development.
2. Off-site deed-restricted housing units
constructed or converted at a separate
location within the Aspen core subject to
approval by APCHA. A single off-site deed-
restricted unit in an otherwise free-market
housing complex shall not be approved.
3. Use of the Affordable Housing Credit Program.
4. APCHA approved buy-down units.
5. Payment-in-lieu to the city or payment of an Impact Fee to the county; or Land-
in-lieu by conveyance of vacant property to the city or APCHA, permitted on a
case-by-case basis.8
The third option, the Affordable Housing Credit Program, allows the City to issue credits to
private developers of affordable units, based on the number of FTEs that can be housed by
the affordable units they construct. The developer can then sell the credits issued by the
City to developers of market rate housing or commercial floor area, so they may mitigate the
demand for affordable housing needs that their projects have created.
As shown above, the payment of a fee-in-lieu is the fifth preferred option, where mitigation
that results in housing units getting built in the near term is preferred over monetary
contributions for future housing construction. Fee-in-lieu is most frequently used by
developers mitigating less than 0.1 of an FTE, likely due to the fact that fee-in-lieu is accepted
in this situation by-right, while developments creating 0.1 FTE or more may elect to mitigate
using fee-in-lieu only by special request to the City Council (see § 26.470.110, Land Use
Code).
8 APCHA, “APCHA Employee Housing Guidelines,” June 2019, p. 14; available at https://www.apcha.org/
DocumentCenter/View/1225.
While the primary objective
of updating the fee-in-
lieu is to address cost and
revenue assumptions, the
City also should revisit
other components, including
employee generation rates,
mitigation rates, and
occupancy standards.
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Finally, in order to provide context for the discussion in this section, we have provided the
following representation of the recommended fee-in-lieu calculation as follows:
Components of the formula shown in orange above reflect variables that, if changed, would
impact the fee-in-lieu amounts (see Methodology Recommendation #6, in section III(D)).
These variables will be revisited and confirmed during the Task 4 full fee study update.
B. CURRENT FEE-IN-LIEU
1. The 2015 Update to the Fee-in-Lieu
The current methodology originated with a 2012 study by RRC/Rees that identified several
calculation options.9 The calculation options were modified over subsequent years by City
staff until the current methodology was established in 2015. The fees were calculated by
estimating the City’s actual costs to construct an affordable housing unit, less the estimated
revenue to be received by the developer of the affordable housing for the unit. The specific
calculation of the fee-in-lieu, however, included a range of assumptions to arrive at the 2015
schedule.
9 RRC Associates, Inc. and Rees Consulting, Inc., “Affordable Housing Fee Methodology, City of Aspen/Pitkin
County/APCHA,” December 2012. It should be noted that the recommendation from the RRC study was to
use the Market-Affordability Gap Methodology, which ultimately was not used in the fee-in-lieu calculation
adopted by City Council.
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The City’s current Fee in Lieu schedule is based on:
1. the difference between the City’s total development costs of an affordable
housing unit and
2. the deed-restricted sale price or rental revenue stream to the City anticipated
from the unit. Revenue varies by APCHA affordable housing unit category by
household income levels.
Referred to here as a “Cost-Driven Approach,” the methodology also is referred to in the
practice as an “Affordability Gap Approach.” The difference between development costs and
the developer’s return on the unit by rent or sale, is the basis for the fee-in-lieu and is often
referred to as the “subsidy.” It is simply the gap between the City’s cost to develop and the
revenue received. Fee-in-lieu amounts are expressed per full-time equivalent (FTE).
The Growth Management Quota System (GMQS) chapter of the City of Aspen Land Use Code
describes the methodology and assumptions on which the fee is calculated:
The subsidy per FTE was calculated by subtracting unit sales revenue per FTE
from the total development costs per FTE. Total development cost per FTE was
determined by using an average of recent City of Aspen projects and foreseeable
future City of Aspen projects for which land has already been acquired and
program/density has been deliberated, where in each case actual land costs
were used in the calculation. The Program/Density projections for future projects
were based upon assumptions suitable for the respective neighborhood, public
outreach, and program/density review by City Council. Development cost
calculations included all “hard” and “soft” costs associated with development.
(Sec. 26.470.050 [E]).10
Several alternative approaches were considered during the 2015 analysis, including a
combination of factors such as: sample affordable housing projects, densities, historic costs,
assessed values, and market values. Ultimately, estimated construction costs and historic
land costs from four City affordable housing projects were used. At the time, the City had
already purchased land for the four housing projects, therefore costs reflected actual costs
for land acquisition. However, the housing projects were in the design stage therefore
construction costs and densities (i.e., the number of units and bedrooms to be delivered) were
estimated.
The projects used to calculate the fee-in-lieu were:
»Burlingame Phase 2B/3
»802 West Main
»517 Park Circle
»488 Castle Creek
10 City of Aspen Land Use Code § 26.470.050(E).
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The fee-in-lieu, also referred to as the subsidy, resulting from the City’s Cost-Driven Approach,
per FTE, was calculated as:
Total City Cost to Develop – Sales Revenue or Operating Income to the City (Yrs 16-50)
= Total Subsidy
and
Total Subsidy / FTE
= Fee-in-Lieu per FTE
Where:
Total City Cost equals land acquisition cost and construction costs (including
soft costs)
Sales Revenue or Operating Income is revenue from the sale of the affordable
unit or rent revenue less first mortgage, operating expenditures, and capital
maintenance expenditures. Rent revenue is calculated to reflect years 16-50
of the life of the unit by unit category with years 1-15 the unit is assumed to be
operated by the developer of the unit.
FTE is the number of FTEs housed in the development
The calculation was applied to each category of housing unit and the subsidy amount per FTE
became the amount of the fee-in-lieu for each unit category (i.e., Category 1 through Category
7 units).
The resulting schedule, adopted in 2015, ranged from
$320,186 per FTE for a Category 2 housing unit to a low of
$223,072 per FTE for a Category 4 housing unit.11
11 Categories 2 and 4 are the units used most often to mitigate affordable housing requirements. Additional
income categories 5-7 were provided in the fee schedule but are “proposed to exist solely for the purpose
of converting affordable housing mitigation credits.” . . . And “cannot be used for purpose of accepting fee-
in-lieu payments for housing mitigation” (R. Barry Crook, Assistant City Manager, Memo to Mayor and City
Council, “Fee in lieu History and Current Status,” October 16, 2018, p. 8.). See also § 26.270.050(F) allowing
for the conversion between “number of employees” requirements and square footage requirements.
Fee-in-Lieu Amounts
Calculated in 2015
Category 2: $320,186
Category 4: $223,072
As updated, as of 2020
Category 2: $342,599
Category 4: $238,687
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2. 2018 Adjustment to the Fee-in-Lieu
In 2018, the City updated the amount, pursuant to section § 26.470.050(E), Land Use Code,
which allows the City to update the schedule annually based on the Engineering News
Record inflation index.12 The Engineering News Record (ENR) is a professional publication
of the construction and engineering sectors. ENR maintains the nationally-recognized
Construction Cost Index (CCI), which tracks national and regional construction cost trends.
Based on the 2018 update, current fee amounts range between $342,599, for a Category 2
unit, and $238,687, for a Category 4 unit.
During the 2018 update, staff provided two options for cost adjustments, based on the ENR
CCI:
»4.5%, based on the Denver ENR CCI Index; and
»7%, based on National ENR CCI.
Council adopted increases to the schedule based on the National ENR CCI at 7%. The
current schedule, per new FTE required to serve new development, is shown in Figure 1
below.
Figure 1. Current Fee in Lieu Schedule
CURRENT FIL SCHEDULE ($ per FTE)
Category 1:$381,383.31
Category 2:$342,599.02
Category 3:$306,549.65
Category 4:$238,687.04
Category 5:$168,289.60
Category 6:$142,114.19
Category 7:$111,438.36
APCHA housing categories are established according to household income levels. Current
income target limits are shown below in Figure 2. Free-market residential development
is expected to mitigate with Category 2 units (or lower) and commercial development is
expected to mitigate with Category 4 units. In practice, it is our understanding that unit
category designation can be negotiated between the City and the developer. Category
designation determines the price at which a unit sells or rents thereby affecting a
development’s pro forma.
12 Under the same subsection of the ordinance, the City Council conducts a full update to the schedule every
five (5) years.
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Figure 2. APCHA Household Income Target Levels per Housing Category
APCHA Housing Target Household Income Level AMI Percentage Range
Category 1 Low-Income Below 50% AMI
Category 2 Lower Moderate Income 50.1 - 85% AMI
Category 3 Upper Moderate Income 85.1 - 130% AMI
Category 4 Middle Income 130.1 - 205% AMI
Category 5 and RO Upper Middle Income 205.1 - 240% AMI
Note: Categories 6 and 7 have been eliminated and incorporated into category 5.
Source: APCHA Employee Housing Guidelines, June 2019.
Fee-in-Lieu collections are deposited and maintained in the City’s Fund 150 Affordable
Housing Fund. From 2010 to 2018, almost $116 million has been collected from revenue
sources in that fund. Of that amount, approximately $10 million is fee-in-lieu revenues,
reflecting approximately 9 percent. The figure below shows annual total revenue collected in
the fund along with the share from fee-in-lieu collections.
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C. METHODOLOGY ISSUES
The current fee-in-lieu in the City of Aspen has faced some
criticism, including that the fee-in-lieu:
1. Does not capture the full costs to construct
affordable housing units in the City of Aspen
2. Does not adequately reflect current land costs
in Aspen
3. Does not include an annual adjustment method
that sufficiently tracks changes in the Aspen
market
As part of the current effort, the City has posed 4 specific
questions regarding the fee-in-lieu program, its effectiveness, and its relationship with the
AHC Program, which was created in 2010.
METHODOLOGY ISSUE # 1:
Whether the current methodology for calculating the fee-in-lieu adequately
captures the full and total cost impact to provide affordable housing in the
City of Aspen?
METHODOLOGY ISSUE # 2:
Whether the cost components in the fee-in-lieu calculation need to be
adjusted to reflect costs specific to Aspen’s construction market?
METHODOLOGY ISSUE # 3:
Whether an alternative methodology for calculating the annual fee
adjustment may more accurately reflect increases in construction costs in
the area?
METHODOLOGY ISSUE # 4:
Whether the current fee-in-lieu affects the market and sustainability of the
Affordable Housing Credit System? Is the fee-in-lieu amount reflective of the
actual cost to deliver affordable housing by the private sector?
This section addresses each methodology issue in turn.
This Report provides
guidance to inform the City’s
next update to its fee-in-lieu
schedule. It does not include
an updated fee calculation.
The amount of an updated
fee-in-lieu can only be
determined after a full study
is completed.
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1. Whether the current methodology for calculating the Fee in Lieu adequately
captures the full cost impact to provide affordable housing in the City of As-
pen?
a) Discussion
One key question regarding the fee-in-lieu is determining how to ensure all costs associated
with the development of affordable housing are captured. Three things are important to note
here.
First, the full calculation of a fee-in-lieu takes into account factors other than costs; for
example, additional revenues that will offset some costs. This report addresses costs. The
full fee-in-lieu or “nexus” study update will use the cost recommendations of this study to
develop a fully updated fee-in-lieu amount.
Second, since the City is using fee-in-lieu revenues to build housing – and not the private
sector – the “full costs” of building that housing reflects the costs the City is likely to incur in
doing so. These may or may not vary significantly from the costs the private developer incurs,
which is discussed below.
Third, as will be discussed more thoroughly in Section IV regarding policy and legal issues,
the legal standards applicable to fees-in-lieu (or “impact fees,” or “exactions”), while generally
consistent, do contain subtleties, which may impact the methodology ultimately used by
the City to update the fee-in-lieu. In addition, as noted in Section IV, the courts, have been
inconsistent in the application of legal standards, terminology, and the standards applied in a
given case, and the reasons for applying that standard.
In any case, the costs to build affordable units is the principal component of all commonly-
used methodologies, including those used throughout Colorado.
Several methodologies can be used to calculate an affordable housing impact fee or fee-in-
lieu. Though perhaps distinguishable from statutory definitions of a “capital facility,” the cost
components used to calculate an affordable housing impact fee or fee-in-lieu are in many
ways consistent with those used for most traditional impact fees. The key difference is that
affordable housing units might be considered as the “facility” to be provided with the fees
collected. The requirements for impact fees are:
Demonstrate an Impact: All new development in a community creates
additional demands on some, or all, public facilities provided by local
government. If the supply of facilities is not increased to satisfy that additional
demand, the quality or availability of public facilities for the entire community will
deteriorate.
Demonstrate Proportionality: The requirement that exactions be proportional
to the impacts of development was articulated first by the U.S. Supreme Court
in the Dolan v. City of Tigard case, in 1994. Proportionality in a fee calculation is
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established through the procedures used to identify development-related facility
costs, and in the methods used to calculate impact fees for various types of
facilities and categories of development. The demand for facilities is measured
in terms of relevant and measurable attributes of development.
Demonstrate Benefit: A sufficient benefit relationship requires that fee revenues
be segregated from other funds and expended only on costs associated with
the facilities for which the fees will be charged. Fees also must be expended in a
timely manner and the facilities funded by the fees must serve the development
paying the fees. However, payment of an impact fee does not require that the
facilities funded with fee revenues be available exclusively to development
paying the fees but provide a proportionate benefit to the service area where the
fees were paid.
In any case, most methodologies consider compliance with the above requirements as a
rough prerequisite to calculating a housing impact fee or fee-in-lieu.
Two main methodologies are typically used to calculate affordable housing fees:
Market-Affordability Gap: This approach bases the fee calculation on the
difference between the market price of housing and the price that is affordable
to households with incomes being served by the locality’s affordable housing
program. The second piece, the “affordable price,” is based on income levels
and homeowner/renter cost assumptions (e.g., percent income to be spent on
housing costs, mortgage interest rates, etc.), and varies by income level and
household size. The affordable price (sales or rental income) reflects revenue
back to the locality to offset the cost to provide the housing. However, by
definition, the revenue generated from the sale or rental of the unit is artificially
constrained, therefore creating a gap. (This was the methodology used in the
2012 RRC/Rees Study.13)
Cost-Driven Approach14: This approach bases the fee calculation on the
difference between total costs to develop a housing unit and the price that is
affordable to households with incomes being served by the locality’s affordable
housing program. The “affordable price” would be the same as described
above; derived from income levels and homeowner/renter cost assumptions
(e.g., percent to be spent on housing, mortgage interest rates, etc.), and varies
by income level and household size.
13 RRC Associates, Inc. and Rees Consulting, Inc., “Affordable Housing Fee Methodology, City of Aspen/Pitkin
County/APCHA,” December 2012.
14 It is noted that where a methodology is labeled as “cost-driven” in this document, others may use the term
“affordability gap” methodology. However, to simplify the discussion here, we relabel this methodology as
“cost-driven” to distinguish between the 2012 RRC/Rees methodology, called “Market-Affordability Gap,”
and the methodology that uses total development costs as the basis to derive affordable housing fees,
which is the fee the City current uses and which is recommended here.
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The affordable price (sales or rental income) reflects revenue back to the locality
to offset the cost to provide the housing. A “gap” is created since, by definition,
the revenue generated from the sale or rental of the unit is artificially constrained
through a deed-restriction. In this case, the gap is the difference between the
cost to build the housing unit and the revenue received.
However, in the case of the City acting as developer, it should be noted that there may
be other revenue sources other than future sales or rental income, which may fill the
gap in some localities: or in other words, a mechanism to further reduce the cost of
development in the first place, such as tax credits. (The cost-driven approach is the
methodology used for the City of Aspen’s current fee-in-lieu.)
In both of the above methodologies, revenues and cost reductions achieved by the developer
of the housing (in this case the City) typically offset a portion of the costs to provide affordable
housing. This could occur during the development stage (if the City can secure a low- or
no-interest loan, for example) and/or during the conveyance stage (that is, the revenue from
the sale or rental of the unit that accrues to the City). Examples of offsetting revenues/cost
reductions include, but are not limited to:
1. Sales revenue
2. Rental revenue
3. Tax credit funding
4. Grants
5. Land donation or contributions from the public or non-profits
6. Low or no interest loans
7. Land banking
8. Lower carrying costs
The City of Aspen’s fee-in-lieu includes assumptions on reduced development costs as well
as revenue to the City from sales or rental income.
b) Recommendation
Based on our analysis, the “cost-driven” methodology, which is used to calculate the City of
Aspen’s current fee-in-lieu remains an appropriate means of capturing the full net cost for the
City to provide affordable housing. It captures the City’s cost to develop affordable housing
units, accounts for a revenue stream to the City from sales, rentals, and other sources that
offsets those costs, and results in the cost gap to be mitigated by the demand created from
market rate development.
Note, however, since the City’s current fee-in-lieu was based on estimated costs in 2015, it is
recommended that the City complete a full nexus study update based on current actual costs.
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2. Whether the cost components in the fee-in-lieu calculation need to be ad-
justed to reflect costs specific to Aspen’s construction market?
a) Discussion
(1) Cost Assumptions: Current Fee-in-Lieu
The City of Aspen’s current fee-in-lieu reflects the City’s estimated cost to build an affordable
unit minus the estimated future cash flow received from the occupant of the unit. The resulting
fee-in-lieu calculation was an average from multiple
City affordable housing projects, also referred to as the
“subsidy” per unit (total City construction costs minus
revenue received by the City from the sale or rental of the
unit).
For purposes of this analysis, the City is first interested in
understanding the total cost to develop an affordable unit,
in the City of Aspen, regardless of the income received
from sale, rental, or other sources. From there, assumptions
regarding revenue can be discussed.
The total cost for City-built affordable housing on which the 2015 fee-in-lieu rates were based,
ranged from $243,966 to $543,216 per FTE (approximately $550 to $1,360 per square foot).
Costs included:
1. Land acquisition (past costs for City land purchases for affordable housing).
2. Soft costs (includes developer fee; excludes costs for City staff time).
3. Construction costs for offsite and onsite improvements and infrastructure
(includes buildings/landscape, and any other mitigation needed).
A summary is provided in Figure 3.
Construction costs per
square foot of housing
built by the City are about
40% higher today than
estimated costs in 2015
(according to the data
available at the time of
this report).
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Figure 3. 2015 Fee in Lieu Study Affordable Housing Total Development Cost Assumptions
The above figures do not include other financial support or revenue offsets. More detail on the
City of Aspen’s fee-in-lieu calculations is provided in Appendix C: Construction Cost Detail.
(2) Connection between Cost Assumptions and how Fee
Revenues will be Spent
Important to the discussion of revising the fee-in-lieu is implementation of the fee-in-lieu,
including the anticipated use of the funds that are collected.
As noted above, most required housing mitigation in the City of Aspen is provided through
on-site and off-site mitigation by the developer creating the need for affordable housing or
by a private developer of affordable housing through the issuance, sale, and extinguishment
of affordable housing credits. However, if fee-in-lieu were to be more widely used, resulting
in higher fee-in-lieu collections, the City would have an increased role in providing the City’s
affordable housing.15 Such a shift may also impact the recommended methodology to align
with the use of the funds, if those fee revenues, for example, were used to subsidize private
sector affordable housing projects. That moves the City further along the spectrum towards
an out-right housing impact fee, like Pitkin County’s.
15 It should be noted that collections are not currently used to fund private sector affordable housing projects in
the City of Aspen.
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In short, the fee must be calculated based on the intended end use of the fee revenues.
If fee revenue is desired to be used to directly fund land acquisition and construction of
affordable housing by the City, then the fee calculation should reflect City costs for land
acquisition and construction, as opposed to private sector costs. For example, this may
reflect the City’s ability to landbank as well as purchase land outside current City limits for
future annexation, options that may not be available to the private sector.
On the other hand, if the City elects to start using fee revenue to directly support private
developer delivery of affordable housing, then the fee calculation should reflect private sector
costs for land acquisition and construction. This may reflect a different set of circumstances
regarding land purchases and construction costs.
(3) Cost Assumptions: Updated Fee-in-Lieu
Since Aspen’s fee-in-lieu is assumed to continue to help fund the construction of affordable
housing by the City, the cost components for the fee-in-lieu should reflect current
development costs the City is anticipated to incur. To ensure an Aspen-specific cost structure,
the objective for the fee update is to get as close to actual total development costs as
possible, based on Aspen data.
General cost component categories should include the same components as in the current
fee-in-lieu:
1. Land acquisition
2. Soft costs16
3. Construction costs
The City of Aspen and the consultant team interviewed public and private affordable housing
developers to obtain current land and construction costs associated with affordable housing
projects in the City. Gathering data on private sector land acquisition and construction
costs is inherently challenging. As part of this study, we offered stakeholder developers the
opportunity to provide cost estimates, but, only one sample project was received. 17
However, the City of Aspen provided updated actual (versus 2015’s estimated) development
costs for the same projects used to develop the current fee-in-lieu.18 Results are discussed
below and shown in Figure 4.
16 While the soft cost category in the current City of Aspen’s includes a “developer fee,” it does not explicitly
capture the cost for City personnel and other overhead costs.
17 To establish common definitions for development cost components, TischlerBise compiled a development
cost worksheet with a detailed list of cost categories to help guide collection of local development data.
While the worksheet was not utilized in this analysis, it is provided in the Appendix E of this report for
potential use in ongoing data collection in Task 4.
18 Burlingame 2B is not included in the updated costs because it is not yet completed. (Note: Burlingame 2B is
now referred to as Burlingame 3)
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1. Land costs reflect what the City paid for the parcels and therefore are the same
line item totals as included in the 2015 fee-in-lieu. However, because the net
square footage of the projects have changed from the 2015 calculation, the cost
per square foot has changed. Further discussion on land costs is provided in the
following section. Land costs per square foot range from $312 to $543. Updated
construction costs range from $743 to $903 per square foot, reflecting all other
costs except land acquisition.
2. Total costs for all cost components (without revenue offsets for sales, rentals, or
other financial support that may be available to the City) per square foot range
from $1,055 to $1,445. The cost per FTE ranges from $388,245 to $561,628.
3. From 2015 estimates to their now-known actual costs, costs per square foot
have increased almost 40 percent while costs per FTE have increased almost
30 percent. Note: the percent increases differ because the development plans
changed somewhat from 2015 to actual, which affect the net square footage
and number of FTEs to be housed.
Figure 4. 2020 Updated Affordable Housing Total Development Cost Assumptions
(4)
2015 FIL:
Estimated to be
Built in 2017*
Actual 2020
2015 FIL:
Estimated to be
Built in 2018*
Actual 2020
2015 FIL:
Estimated to be
Built in 2019*
Actual 2020 2015 FIL Actual 2020
Land Cost $3,690,000 $3,690,000 $4,105,000 $4,105,000 $5,400,000 $5,400,000
Construction Cost $3,948,977 $6,138,497 $5,445,102 $6,787,153 $12,067,607 $12,847,507
Total Cost $7,638,977 $9,828,497 $9,550,102 $10,892,153 $17,467,607 $18,247,507
Total Cost % Increase 29%14%4%
Sq. Ft. (Net)5,625 6,800 9,036 7,950 22,434 17,300
Land $/Sq. Ft. $656 $543 $454 $516 $241 $312
Construction $/Sq. Ft. $702 $903 $603 $854 $538 $743
Total $/Sq. Ft. $1,358 $1,445 $1,057 $1,370 $779 $1,055 $937 $1,290
Cost per Sq. Ft. % Increase 6%30%35%38%
FTEs 14.06 17.50 22.59 21.25 56.09 47.00
Total $/FTE $543,216 $561,628 $422,746 $512,572 $311,444 $388,245 $380,343 $487,482
Cost per FTE % Increase 3%21%25%28%
* Estimated costs used in City of Aspen Fee In Lieu calculation in 2015 (October 12, 2015, Council Memo).
Sources: City Council Memo, October 12, 2015; City of Aspen.
AVERAGE802 West Main 517 Park Circle 488 Castle Creek
Further Discussion on Land Costs
Land cost comparisons are provided in this section to highlight the range of costs for land
acquisition in the City of Aspen. Two sets of comparisons are provided—costs per FTE (where
FTEs are known) and costs per square foot (reflecting the gross parcel size) from three sets of
land purchases—City land purchases for affordable housing in 2008, recent land acquisition
for affordable housing projects, and recent arms-length vacant land sales in the City of Aspen
obtained from Pitkin County Assessor data.
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1. Costs per FTE range from approximately $70,000 (404 Park) to $210,000 (802
West Main).19
2. Costs per square foot range from $150 (488 Castle Creek) to $590 (average
arms-length vacant land sales in City of Aspen
Additional detail on land acquisition costs is provided in Appendix D: Land Acquisition Costs
Detail.
Figure 5. Land Acquisition Cost per FTE
19 FTEs are not estimated for average arms-length vacant land sales data.
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Figure 6. Land Acquisition Cost per Square Foot
b) Recommendation
Based on our analysis, the cost components included in the City of Aspen’s current fee-in-
lieu are appropriate and reflect the cost elements to provide affordable housing in the City of
Aspen specifically. These should be carried forward during the City’s next fee update.
However, we also recommend the City separate land acquisition costs from construction
costs in an updated fee-in-lieu calculation. This will allow the City to (a) adequately capture
current costs in the update based on actual or estimated land acquisition costs and (b)
annually update land costs separately from construction, which are likely to change at
different rates. Annual update recommendations are set out below.
Second, the City should consider including its labor costs for staff time, overhead, and other
costs necessary to create affordable housing in the fee-in-lieu update, thus aligning with
comparable cost categories for private sector affordable housing development. This is an
area that is unsettled in the law so should be coordinated with the City Attorney at that time.
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3. Whether an alternative methodology for calculating the annual fee adjust-
ment may more accurately reflect increases in construction costs in the
area?
a) Discussion
In addition to its recurring full study updates, the Land Use Code (Section § 26.470.050(E))
allows the City to adjust the fee-in-lieu schedule each year, to reflect ongoing changes in
construction and costs, based currently on the Engineering News Record inflation index.
The Engineering News Record (ENR) is a professional publication of the construction and
engineering sectors. ENR maintains the nationally-recognized
Construction Cost Index (CCI), which tracks national and
regional construction cost trends.
In 2018, City staff provided two options for cost adjustments
using ENR CCI from two geographies: 4.5 percent based on
the Denver ENR CCI and 7 percent based on the National
ENR CCI. The Council adopted the latter.
The National ENR CCI is an index that aggregates data from 20 cities, including Denver.20 The
dataset also provides disaggregated figures for each of the 20 cities individually. ENR notes
that it is more appropriate to use the 20-city average index than a single-city index closer to
the locality. Because the national index has more elements, it has a smoother trend, while
indexes for individual cities are more susceptible to price spikes.21
Other construction cost indexes and estimators are available such as:
1. American City and County Municipal Cost Index, which is a national index
developed specifically for local government costs with several components,
including the Municipal Cost Index (MCI), which covers all public costs and
a Construction Cost Index (CCI). (https://www.americancityandcounty.com/
municipal-cost-index)
2. R.S. Means/Gordian is a construction cost estimating service/database. The
data is available for individual cities and regions as well as national averages.
The data is published on an annual basis however, it does not publish a separate
cost index. An annual increase would need to be calculated given the data
20 The 20 cities are: Atlanta, GA, Baltimore, MD, Birmingham, AL, Boston, MA, Chicago, IL, Cincinnati, OH,
Cleveland, OH, Dallas, TX, Denver, CO, Detroit, MI, Kansas City, MO, Los Angeles, CA, Minneapolis, MN,
New Orleans, LA, New York, NY, Philadelphia, PA, Pittsburgh, PA, San Francisco, CA, Seattle, WA, and St.
Louis, MO.
21 Engineering News Record, https://www.enr.com/economics/faq.
City construction costs
per square foot have
increased roughly 8%
each year on average.
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available. (https://www.rsmeans.com)
3. Marshall and Swift/CoreLogic is also a construction cost estimating service/
database. This data is also published annually and can be used to determine an
annual cost increase given changes in the construction market. (https://www.
corelogic.com/solutions/marshall-swift.aspx#a_Resources1)
4. Another option from the City of San Francisco (see the Case Studies in the
Appendix B) is a staff-led annual adjustment to maintain a rolling inventory of
recent affordable housing construction projects. The Mayor’s Office of Housing
and Community Development (MOHCD) is directed to update the Affordable
Housing Fee with data on affordable housing projects financed from the most
recent three-year period. New projects are added each year and older projects
outside of the three-year window are dropped.22 However, in order to be reliable,
this approach demands rigorous and ongoing data collection by staff, as well as
a sophisticated methodology to guide data collection and processing.
b) Recommendation
The Engineering News Record indices, other cost indices indicated above, and the San
Francisco approach are standard methods used to update construction costs.
Use of the Consumer Price Index (CPI) is not recommended, however, because the products
tracked in the CPI do not reflect construction costs sufficiently. And, while City staff could
follow San Francisco’s lead and track construction cost changes in “real time,” this may not
fit the Aspen environment, where there may not be enough affordable housing projects each
year to provide sufficiently reliable data for purposes of adjusting the fee-in-lieu citywide.
Also, it is not clear whether such a burdensome undertaking on staff’s part would result
in adjustment factors any more reliable than the ENR. Finally, if it is the City’s desire to
track costs for private sector affordable housing development, obtaining this data may be
challenging.
Therefore, we recommend the more straightforward and transparent approach of the City
basing its annual adjustments on ENR’s national averages, not single-city averages, which
are more susceptible to price fluctuations due to the labor market, weather, and localized or
regional trends. ENR is the most widely used index for impact fees and is therefore familiar
to the development community. According to the national ENR CCI, construction costs have
increased from 2 to almost 4 percent annually. The City of Aspen used a 3 percent escalator
22 From the San Francisco program (see Appendix B). “Pursuant to Section 415.5 and the specific direction
of the Controller and TAC, MOHCD shall update the amount of the Affordable Housing Fee each year on
January 1, using the MOHCD average cost to construct an affordable unit in projects that were financed
in the previous three years and the Planning Department’s average residential Gross Floor Area of projects
that have elected to pay the Fee and have been entitled in the same time period. Each year this analysis will
be updated to include new projects from the most recent year, and drop older projects that no longer fall
into the three year period of analysis. The updated Fee amount will be included in the Citywide Impact Fee
Register that is posted December 1 and effective on January 1.” https://sfplanning.org/project/inclusionary-
affordable-housing-program#2019-fee-update.
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in its 2015 study to estimate future costs. A comparison graphic is shown below.
Figure 7. ENR National CCI Annual Percent Change Compared to City Escalator
Actual costs from City affordable housing projects increased by a larger amount than was
projected during the 2015 FIL Study (see Figure 4). Actual costs have increased from 4 to 29
percent over original estimates. National ENR CCI increases over the same time periods are
considerably lower with the exception of the most recent project. A summary is provided in
Figure 8.
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Figure 8. Increases in Affordable Housing Development Costs from Original Estimate Compared to ENR
CCI
In most programs, either will sufficiently reflect the changes over the prior year, particularly if
the jurisdiction is diligent about applying the adjustment every year. As is discussed below,
the City’s adopted “mitigation rate” also may impact its approach to annual adjustments.23
4. Whether the current fee-in-lieu affects the market and sustainability of the
Affordable Housing Credit System? Is the fee-in-lieu amount reflective of the
actual cost to deliver affordable housing by the private sector?
a) Discussion
When the City added the AHC program in 2010, it created a new opportunity for the private
sector to join the City and other governmental and non-profit entities in the provision of deed-
restricted affordable housing. This provided an opportunity for the City to avail itself of the
efficiencies of the private housing market, while also taking advantage of the effectiveness
and predictability inherent in the existing public sector component.24
23 Note that, were the City to change its methodology to a Market-Affordability Approach, using residential
market values, instead of construction costs, then a house price index could be used such as: the Freddie
Mac House Price Index, which is a measure of typical price inflation for houses within the United States and
available at the Metropolitan Statistical Area (MSA), state, and national levels (http://www.freddiemac.com/
research/indices/house-price-index.page); or the Case-Shiller Home Price Indices, which include a national
home price index, a 20-city composite index, a 10-city composite index, and twenty individual metro area
indices https://www.corelogic.com/products/corelogic-case-shiller.aspx and https://fred.stlouisfed.org/
series/CSUSHPISA).
24 See City of Aspen, Land Use Code § 26.540.010 9 (“There are two main purposes of this chapter: to
encourage the private sector to develop affordable housing; and to establish an option for housing mitigation
that immediately offsets the impacts of development. A Certificate of Affordable Housing Credit is issued
to the developer of affordable housing that is not required for mitigation. Another entity can purchase such
a Certificate and use it to satisfy housing mitigation requirements. Establishing this transferable Certificate
creates a new revenue stream that can make the development of affordable housing more economically
viable. Establishing this transferable Certificate also establishes an option for mitigation that reflects built and
occupied affordable housing, thereby offsetting the impacts of development before those impacts are felt.
This Chapter describes the process for establishing, transferring and extinguishing a Certificate of Affordable
Housing Credit.”)
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Although the AHC program provides an alternative means of complying with the City’s
Growth Management Quota System, it is a distinct and separate mechanism for doing so.
Specifically, it invites the private sector to have a role in developing affordable housing in
the Town. The private sector benefit of AHC Program was its independence from the City’s
public sector efforts. In fact, section 26.540.030 of the Land Use Code specifically states:
“The market for Certificates of Affordable Housing Credit is unrestricted and the City shall not
prescribe or guarantee the monetary value of a Credit.”
In other words, the City is not part of the sale or transfer of credits after it has issued the
credit to the private sector developer of affordable housing. In fact, the City is limited to the
role of ledger-keeper. It issues the credit, it may issue revised certificates to subsequent
purchasers, and it extinguishes the credit when it is eventually submitted as mitigation.
However, the City is not aware of the prices at which the credits are offered on the free market
or the prices at which they are purchased. Therefore, under its ordinance, the City has not
“prescribed” or “guaranteed” the value of credits since they were created seven years ago.
Nonetheless, the questions have been asked: Whether the City’s fee-in-lieu program (or the
amounts of the fee-in-lieu) affects the market or sustainability of the AHC program and, if so,
does the amount of the fee-in-lieu reflect the costs for the private sector to develop?
First, it is difficult to draw a definitive and singular connection between the amount of the
City’s fee-in-lieu and the value of a free-market affordable housing credits. This is true from
both structural and economic points of view. As noted above, the structure of the program
intentionally separated the two. And, as is discussed below, from a theory of economics,
there are simply too many factors, too few transactions, and too many constraints on the
limited credit market to discern a relationship between fee-in-lieu amounts and credit values
on the private market.
Second, as is discussed under Methodology Issue # 2, the fee-in-lieu is not meant to reflect
the costs of the private sector, because the fee-in-lieu funds the City’s parallel, yet distinct,
public component. While we would expect some of categories of costs to be similar between
the public and private sectors, we were not able to gather sufficient data on private sector
costs to confirm. However, the key point is that the two are separate and one is not meant
to support the other. Fortunately for the City, both sectors have been quite successful at
creating affordable housing over their respective tenures.
As to the suggested relationship between fee-in-lieu amounts and credit values, based on our
interviews with various stakeholders and our evaluation of the City’s program, we are unable
to draw a sufficiently singular connection between the amount of the fee-in-lieu and the value
of a credit to support a recommendation that the former should be calculated in light of the
later.
First, affordable housing credit sales do not involve the City of Aspen. Rather, the seller of
credit sets the desired price, the buyer pays the value they believe to be market rate, and the
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City is not involved. Does the amount of the fee-in-lieu affect the credit buyers’ willingness
to purchase or pay a given amount for a credit? It may, but there are many factors which
presumably also influence that decision.
Furthermore, as noted, the nature of the credit market is so constrained and unique, that it
is not possible to tie the City’s fee-in-lieu to the value of a given credit on the free market to
closely. It may have a stronger bearing for one purchaser, but very little for another.
It is more likely that the overriding and across-the-board factors defining the value of credits
include:
1. Other costs the market-rate developer bears in the FTE-generating
development;
2. The scarcity and highly varied nature of Aspen’s land market;
3. The very limited opportunity of the developer to pay fee-in-lieu as an alternative
to other options, due to the City’s low prioritization of the fee-in-lieu option);
4. Development alternatives available to market-rate developers, both within
Aspen, but also in Pitkin County and other areas within commuting distance;
5. The costs and appeal of mitigation options other than fee-in-lieu and credits,
including built housing, buy-downs, or purchase and deed-restriction;
6. The limited number of credit holders in the market;
7. The limited number of potential credit purchasers in the market; and
8. The limited availability of credits available on the free market, since credit
holders are not obligated to make credits available at all or at a given price (i.e.,
a credit holder may retain the credit for investment or their own use.
Recall, the option to use the fee-in-lieu alternative is quite limited. Payment of the fee-in-
lieu is the lowest prioritized mitigation option and its use, in most cases, would have to be
approved by City Council action. So, while the fee-in-lieu option may influence the decision
to purchase credits on the free market for some, the amount of the fee-in-lieu set by the City
is likely to have only a minor impact on how the market establishes the value of a credit.
There is, however, the belief among some in the community that the fee-in-lieu is directly
related to the price of a free market credit. In practice, however, it is not clear whether this is
the case. The current credit market “economy,” so to speak, simply doesn’t allow for the type
of competition and fungibility to conclude the two are related. We cannot conclude therefore,
that an increase in the fee-in-lieu would increase the value of an affordable housing credit.
And, this gets us to the second part of Methodology Issue #4: does the amount of the City’s
fee-in-lieu reflect the actual cost of the private sector to provide housing. In short, perhaps it
does to a certain degree, but, most important, it is not intended to.
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As is discussed above and in Methodology Issue #2, the fee-in-lieu reflects the City’s cost to
build affordable housing, not those of the private sector. Rather, the City’s cost, as described
elsewhere, may reflect below market costs (e.g., land that has been purchased and held) and
thus not entirely reflective of a private sector development pro forma.
This is fitting, of course, since the current program applies fee-in-lieu revenues to City housing
projects, not that of private developers. Indeed, as has been discussed, this is the way the
credit program was set up in 2010. The program is a separate ordinance and economic
component of the City’s overall housing mitigation effort. By any account, the two have
worked reasonably well together, given the magnitude and complexities of the City’s housing
challenges. Though they work towards a common goal, neither is intended to “sustain” the
other. To reform one or the other for the purpose of doing so, would distort and may threaten
their current effectiveness.
Finally, recall that total mitigation requirements for development are a combination of fee-
in-lieu, as well as generation and mitigation rates. For example, the fee-in-lieu for non-
residential development today is priced at only 65% of the assumed full cost impact. Since
credits are a function of the private market, a City-imposed mitigation rate would not be
appropriate. In fact, the City has expressly removed itself from influencing the value of
credits.
b) Recommendation
It is unclear whether the City’s fee-in-lieu amounts affect the value of Affordable Housing
Credits available in the market. Rather, it appears from our analysis that the City’s prioritization
of “construction first” - rather than “fee first” – and other factors and constraints on the credit
market have the predominant impact on the value of AHCs and the credit system itself. Even
if fee-in-lieu amounts do impact the value of a credit, it seems the system was set up for the
“competition,” so to speak. That is, if the City’s costs to build affordable housing are less,
then one may well expect the fee-in-lieu to be less than the market value of a credit. On the
other hand, all things being equal, it might be easier to purchase a credit than to pay fee-in-
lieu, given the limited availability of the fee-in-lieu option under the City’s current framework.
This would drive demand towards credit, presumably creating upward pressure on their value.
Therefore, unless the City’s wishes to pursue a significantly different approach to the provision
of affordable housing in the future—specifically with respect to the current roles of the public
and private sectors—we recommend the City apply the cost-driven methodology to its next
full update, without regard to the impact of the fee-in-lieu on the value of outstanding or
future affordable housing credits. While there may be a relationship between the two, we
cannot reasonably predict the effect of the change in one on the other, sufficient to support a
recommendation.
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D. ADDITIONAL METHODOLOGICAL CONSIDERATIONS
In addition to the about four areas of our scope of work, we noted in our efforts that it
would be advisable for the City to look again at three component variables of its mitigation
program: employee generation rates, mitigation rates, and employees per residential unit. It
is important that these be revisited – and perhaps updated – at regular intervals. Each of the
three is discussed briefly here.
1. Employee Generation Rates and Mitigation Rates
a) Employee Generation Rates
The Land Use Code, sets out the employee generate rates calculated by a study in 2012,
which surveyed over 100 local businesses to establish applicable generation rates. Employee
generation rates are stated as FTEs per one thousand (1,000) square feet of new net leasable
space or lodge bedrooms creating the demand for new housing.
Since new development must mitigate a portion of the
new employees it generates, it is important to ensure that
the assumed rates remain accurate and up-to-date. The
lower the rate of employee generation, the less mitigation
is required and, of course, the higher the rate, the greater
mitigation is required.
Note, however, that the amount ultimately required of new
development depends upon how much of this impact new
development is required to bear. This is known as the
“mitigation rate,” which is discussed next.
b) Residential and Non-Residential Mitigation Rates
As discussed previously, the City’s existing fee-in-lieu rates reflect only a percentage of the
total calculated impact of new development on the need for additional affordable housing.
Generally speaking, new residential development must include 60-70% affordable units and
nonresidential development mitigates only 65% of its calculated impacts.25 Therefore, it is
important to understand the relationship between the employee generate rate, the adopted
mitigation rate, and the final mitigation or fee-in-lieu to be provided by the applicant. During
the updated nexus study, the City will need to confirm its policy with respect to its adopted
mitigation rates and its policy objectives in the future.
Both the employee generation and mitigation rates are set forth in the City of Aspen Land Use
Code and summarized here in Figure 9.
25 City of Aspen Land Use Code § 26.470.090. Rates vary by land use type and the nature and extent of the
proposed development.
Higher employee generation
rates would reflect a greater
demand for new affordable
housing and, therefore
would pressure fee-in-lieu
amounts upward.
Conversely, lower employee
generation rates, direct fee-
in-lieu lower.
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Figure 9. Employee Generation Factors and Mitigation Requirements
Residential Development
Type Unit of Development Mitigation
Requirement Source/Citation
First 4,500 square feet of
floor area 0.16 employees (FTEs) per
1,000 sq. ft. of floor area
City of Aspen Land Use Code,
§26.470.090(A)(3)(c); and
Above 4500 square feet of
floor area 0.36 employees (FTEs) per
1,000 sq. ft. of floor area
APCHA Employee Housing
Guidelines, June 2019, Table V.
Multifamily Square feet of expansion 0.18 employees (FTEs) per
1,000 sq. ft. of floor area 30% mitigation City of Aspen Land Use Code,
§26.470.090(B)(2)(c)
30% mitigationSingle Family, Duplex
Employee Generation Rates
c)
Nonresidential Development
Zone District Unit of Development Mitigation
Requirement Source/Citation
Commercial Districts [1]Square feet of expansion 4.7 employees (FTEs) per
1,000 sq. ft. of floor area 65% mitigation City of Aspen Land Use Code,
§26.470.050(B)(Table 3)
Mixed-Use (MU) [2]Square feet of expansion 3.6 employees (FTEs) per
1,000 sq. ft. of floor area 65% mitigation City of Aspen Land Use Code,
§26.470.050(B)(Table 3)
Service Commerical Industrial
(S/C/I)Square feet of expansion 3.9 employees (FTEs) per
1,000 sq. ft. of floor area 65% mitigation City of Aspen Land Use Code,
§26.470.050(B)(Table 3)
Public [3]Square feet of expansion 5.1 employees (FTEs) per
1,000 sq. ft. of floor area 65% mitigation City of Aspen Land Use Code,
§26.470.050(B)(Table 3)
Lodge Preservation (LP) lodge
units Bedrooms 0.3 employees (FTEs) per
lodging bedroom 65% mitigation City of Aspen Land Use Code,
§26.470.050(B)(Table 3)
Lodge (L), Commercial Lodge
(CL), Ski Base (SKI), and other
zone district lodge units
Bedrooms 0.6 employees (FTEs) per
lodging bedroom 65% mitigation City of Aspen Land Use Code,
§26.470.050(B)(Table 3)
[1] Commercial Core (CC), Commercial (C-1), Neighborhood Commercial (NC), Commercial Lodge (CL) commercial space, Lodge (L) commercial space,
Lodge Preservation (LP) commercial space, Lodge Overlay (LO) commercial space, Ski Base (SKI) commercial space.
[2] Separate uses in a mixed-use building are evaluated separately.
[3] Employee factors reflect office-type public uses; public facility proposals are evaluated on a case by case basis.
Employee Generation Rates
Occupancy Standard (employees per unit)
The third area for additional consideration are the City’s assumed occupancy standards,
which are set forth in section 26.470.050(D) (Table 4) of the Land Use Code. They are
summarized in Figure 10 below.
The occupancy standard reflects the number of employees assumed to be housed in
each type and size of a housing unit. This factor is based on a factor of 400 square feet
per employee. (e.g., a studio unit of 500 square feet is calculated to accommodate 1.25
employees (500 sq. ft. / 400 sq. ft. = 1.25)).
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Figure 10. City of Aspen Affordable Housing Minimum Square Feet and Occupancy Standards
Unit Type/Size Min Sq. Ft.
Occupancy Standard*
(Number of Employees
Housed/Mitigated)
Studio 500 1.25
1 Bedroom 700 1.75
2 Bedroom 900 2.25
3 Bedroom 1200 3.00
4 or more bedrooms 0.5 per bedroom
* Based on 400 square feet per employee.
Source: City of Aspen Land Use Code, §26.470.050(D)(Table 4) and §26.470.050(F);
APCHA Employee Housing Guidelines, June 2019, Tables VI and VII.
During its study update, the City should verify whether these estimates continue to reflect the
current market and occupancy rates.
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RECOMMENDATIONS
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IV. POLICY ISSUES AND
RECOMMENDATIONS
A. POLICY OVERVIEW
In addition to the four methodological questions reviewed above, this report answers three
specific questions of policy or law.
POLICY ISSUE #1:
What are the policy ramifications and legal issues surrounding the fee-in-lieu
option as a component of the City’s current housing mitigation program?
POLICY ISSUE #2:
What are the policy ramifications and legal issues with regard to the thresholds
and conditions under which an applicant may pay fee-in-lieu as a compliance
options?
POLICY ISSUE #3:
What are the implications of the City’s fee-in-lieu thresholds on the City’s housing
credit program?
This section of the report, evaluates and offers a response to each of these issues. However,
since to do so requires a general understanding of the statutory and case law surrounding
fee-in-lieu and housing mitigation in general, the following sections provides some context.
B. LEGAL BACKGROUND & REVIEW
1. Generally
Aspen is a home rule city and has all powers possessed by the legislature as to matters of
local concern.26 Since zoning is a matter of local concern and housing mitigation regulations
are a matter of zoning, it follows that housing mitigation regulations would also be authorized
under the City’s home rule powers,27 except to the extent that it is preempted by state
statutes that regulate a matter of statewide concern.28 As part of this study, we have reviewed
the City’s current fee-in-lieu program, against an admittedly uncertain legal backdrop of cases
and statutes, and nonetheless believe it to be largely sound. However, this area of planning is
in a state of flux nationally and in Colorado.
26 Colo. Constitution Art. XX, § 6.
27 City of Greeley v. Ells, 186 Colo. 352, 527 P.2d 538 (1974).
28 D. Elliott, Colorado Planning and Development Law (7th Ed. 2006), at 4-8; Lot Thirty-Four Venture, L.L.C.
v. Town of Telluride, 3 P.3d 30 (Colo. 2000) (housing mitigation ordinance establishing maximum rents
preempted by state rent control statute, which addresses matters of mixed statewide and local concern).
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On the national scene, fortunately, with some recent cases out of California, the outlook is
less murky. The weight of the cases seems to categorize inclusionary housing programs
as usual land development regulations inherent in the police power and not a question
implicating regulatory takings in most instances. However, the Colorado courts have not
weighed in directly on the issue and actually have created some additional uncertainties under
state law, which we will get to. We have, therefore, made a series of recommendations, which
balance the City’s urgent interests in seeing more affordable housing in the community with
the known and probable legal limitations on how local governments in Colorado can go about
accomplishing that.
2. The Legal Framework for Local Governments
Unfortunately, when it comes to housing mitigation, including fee-in-lieu, the Colorado courts
have not expressly resolved the source of authority under which cities and counties in the
state may operate. Therefore, a brief overview of the distinctions among types of mitigation is
provided first, followed by an evaluation of the three policy questions posed.
a) Nomenclature
Affordable Housing programs that require new development to mitigate impacts on local
affordable housing availability, tend to fall into one of several categories, including:
1. Inclusionary Housing – where developers are required to provide a percentage
of total homes built as affordable housing.
2. Housing Impact or Linkage Fees – where a “fee” is calculated based on
the additional housing capacity demanded by new development, due to the
generation of new employees in the community. These fees are included in
a legislatively-adopted schedule, which are generally-applicable to each new
development.
3. Land Use Regulation – where new residential and non-residential development
is required to mitigate its impacts on affordable housing as a development
standard precedent to use establishing a new use of property.
4. Development Agreements – where developers and approving governmental
agencies negotiate on a case-by-case basis the extent, amount, and nature of
housing to be provided by the proposed new development.
Aspen’s growth management quota system (GMQS) and its prior iterations, along with the
AHC program, have included a number of aspects of these techniques. The GMQS requires
a percentage of each new development’s housing impact to be mitigated (the “mitigation
rate”) in order to put a property to a new use, and allow mitigation in many forms, including
by monetary contribution. However, the GMQS is likely best categorized as a land use
regulation, subject to mitigation alternatives, including the option to make a monetary
contribution in the form of a “fee-in-lieu.”
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From a planning point of view, the distinction between these purportedly distinct categories
may be less meaningful. In each case, the public policy objective is simply that affordable
housing keeps up with new demand created by new development, typically by way of several
alternative means of doing so. For example, contributions of constructed housing can
typically be made to meet fee-based requirements and, conversely, monetary contributions
can usually be made to meet construction-based requirements. Though it might be that each
approach falls into either a “fee-first” or “construction-first” category. Aspen’s would be a
“construction-first” approach (which fees as an option). Pitkin County’s, on the other hand, is
a “fee-first” approach, as a housing impact fee.
b) Constitutional Considerations
From the legal point of view, the courts have regarded this range of tools as either exactions
or land development regulations and each has a different legal standard with which to comply.
Unfortunately, the courts have not been consistent in their categorizations, nomenclature, or
legal standards from case-to-case or state-to-state.
Ad hoc exactions, which typically would only be made as a condition of a development
approval, as distinguished from the above-listed approaches, must comply with essential
nexus and rough proportionality requirements, which were adopted by the U.S. Supreme
Court in the 1980s and 90s.29 These standards apply whether the ad hoc exaction is in the
form of land, construction, or money.30
However, legislatively-adopted, generally-applicable mitigation regulations – impact fees,
for example – are not generally held by the courts to the heightened standards of essential
nexus and rough proportionality. The Colorado Supreme Court said as much in Krupp v.
Breckenridge Sanitation District31, when it held that legislatively-adopted impact fees are not
subject to the taking standards of Nollan and Dolan. Given the nature of the City’s GMQS and
fee-in-lieu component, it seems less likely a court would apply the Nollan/Dolan standard in
the event of a challenge, however, that cannot be certain unless or until the courts address a
housing mitigation system more similar to Aspen’s.32
Other cases around the country have held that legislatively-adopted, generally-applicable
inclusionary housing programs, per se, are not exactions, but rather are land development
regulations authorized under the police power.33 Programs have been upheld , for example,
29 See Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Dolan v. City of Tigard, 512 U.S. 374
(1994).
30 Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013).
31 19 P.3d 687 (Colo. 2001).
32 Note that, in 2009, a Gunnison County district judge granted Gunnison County’s motion for summary
judgment on a challenge against its housing fee, which was being charged against new residential
construction. However, this is an unreported case and its applicability to other programs has not been
established.
33 See e.g., CBIA v. San Jose, 351 P.3d 974 (Cal. 2015) (upholding inclusionary housing ordinance as a
reasonable regulation, not an exaction), CBIA v. San Jose, 136 S. Ct. 928 (2016), cert. denied.
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where the community demonstrates the severity of its affordable housing challenge and the
extent to which this challenge impacts land use and socio-economic policies objectives in
the community. In December 2019, the U.S. Supreme Court declined to review the Cherk v.
Marin County case from California, in which the California Court of Appeals refused to apply
the heightened standards of Nollan and Dolan to a legislatively adopted housing fee-in-lieu
requirement.34
Even still, the City has always strived to ensure that no housing mitigation is required except
when there is an established nexus and proportionality between developments providing
mitigation and the resulting housing.35 It has done so through studies, including one in 2012
performed by the outside firms of RRC and Rees and the in-house calculations performed
more recently, in 2015.
c) State Law Considerations
Two additional areas of state law should also be considered.
(1) Statutory Property Rights Protections
First, the Regulatory Impairment of Private Property Rights Act of 2001 (RIPRA) creates
a cause of action for property owners subject to exactions made by local government
as a condition of approval, where the local government fails to establish nexus and
proportionality.36 Again, since the City’s GMQS mitigation regulations have been legislatively-
adopted, it is less likely that it would be subject to a RIPRA cause of action. Furthermore, as
noted, the City has based its mitigation regulations, whether legislatively adopted or not, on a
demonstration of nexus and proportionality.
(2) Rent Control Considerations
Second, in 2000, the Colorado supreme court held that the Town of Telluride’s inclusionary
housing requirements amounted to a form of rent control, which was a power precluded by
state statute.37 In 2010, the Colorado General Assembly revised the rent control statute to
exclude certain voluntary actions. In sum, the revised statute does not apply to controls on
residential rents that are subject to either (a) a voluntary agreement limiting rent or providing
affordable housing; or (b) a deed restriction placed on the unit pursuant to a voluntary
agreement. In addition, approval of a development permit cannot be withheld for an
applicant’s refusal to enter into a voluntary agreement with a local government.38
Though there has been little in the way of litigation post-Telluride, the City of Aspen
defended a lawsuit about ten years ago against the claim that a deed-restricted unit had
34 See Cherk v. County of Marin (Dec. 14, 2018), A153579.
35 Note as well that residential and nonresidential mitigation is limited to only a percentage of total impact.
36 C.R.S. §§ 29-20-201 through 205.
37 Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000).
38 C.R.S. 38-12-301.
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been created involuntarily and, therefore, in violation of the rent control statute. The City
ultimately prevailed since the record failed to indicate any duress, threat, or lack of reasonable
alternatives available to the applicant at the time.39
Accordingly, communities in Colorado that have adopted or continued inclusionary housing
programs, have taken steps to ensure any limitations on rent are voluntarily made, including:
1. Limiting mitigation regulations to for-sale units;
2. Providing alternative means of complying with a mitigation regulation (including
fee- or cash-in-lieu);
3. Providing a subsidy to developers who include affordable housing in their
developments, through a housing partnership with the developer;
4. Providing a bonus to developers who voluntarily provide affordable housing;
5. Encouraging developers to propose affordable housing mitigation through
discretionary approvals and voluntary agreements; and,
6. Allowing payment of fee-in-lieu as an alternative to requiring housing with
mandated rent limits.
Generally speaking, the City’s program involves housing built by developers of FTE-generating
projects, which may, among other things, be deed-restricted at the affordability rates set
forth in the Aspen Pitkin County Housing Authority Guidelines. However, most mitigation is
made through either fee-in-lieu contributions, credit purchase and extinguishment, or through
other voluntary mechanisms. Meaning that developers have a number of options that do not
require them to provide rental housing at “controlled” levels.
Currently, the Colorado Municipal League is working with several state legislators to prepare a
bill that would expressly authorize inclusionary housing and similar tools, outside the scope of
rent control, however, as of the date of this report, no bill has been filed.
Housing advocates and communities facing affordable housing crises believe such legislation
might clarify local government authority in this area.
Rather, in the case of fee-in-lieu and credits, they are paying others who have chosen,
voluntarily, to build deed-restricted housing, either the City or a private developer.
Furthermore, deed restricted for-sale units, which are not subject to rent control prohibitions,
qualify for mitigation. In addition, the City accepts accessory dwelling units as mitigation
without rent limitations. There are options in some cases for providing resident occupied
(RO) units and, indeed, participation in the fee-in-lieu or credit system may amount to a public
partnership under C.R.S. 38-12-301.
39 Meyerstein v. City of Aspen, 282 P.3d 456 (Colo. App. 2011).
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C. POLICY ISSUES
In order to evaluate the methodological issues set forth in Section III and our
recommendations in Section V, here we address three specific areas of policy related to the
City’s fee-in-lieu program and the legal context of each.
1. What are the policy ramifications and legal issues surrounding the fee-in-
lieu option as a component of the City’s current housing mitigation pro-
gram?
a) Discussion
As we have discussed, the City prefers housing mitigation in the form of on- or off-site
constructed housing, because it typically results in affordable housing units more quickly than
a monetary contribution might. As a practical matter, however, this presents a number of
logistical challenges to some development creating the need for new housing.
First, some applicants – particularly those seeking a minor expansion to an existing use – may
not be positioned to construct affordable housing or to contract for someone else to do so.
Indeed, some of the criteria for City Council approval of fee-in-lieu requests recognize that
doing so will be impractical in some cases.40 The fee-in-lieu addresses that contingency well.
Second, some impact-generating developments are small enough to generate less new
housing demand than a full affordable housing unit would require. These are commonly
referred to as “fractional” units or FTE’s and a fee-in-lieu (or credit) option gives these smaller
developments a readily available means of complying with City mitigation regulations.
As discussed above, until we receive further guidance from the courts or the general
assembly, it is not certain whether the courts will characterize all or some components
of housing mitigation as a development regulation or an exaction. Nonetheless, the City
historically has taken steps to ensure all alternatives for mitigation compliance meet nexus
and proportionality. The U.S. Supreme Court and other courts have held that the availability
of at least one compliance alternative meeting constitutional standards can defeat a taking
claims.41 Accordingly, the flexibility that the fee-in-lieu and, to a lesser degree, the AHC
program offer provides a reasonable alternative for “fractional” projects to comply.
Third, until the issue of rent control is resolved in Colorado, having the option to pay into
a fund instead of being required to construct housing, may support a legal defense along
these lines. And, the availability of private-market credits, and fractions thereof, gives Aspen
developers another way of mitigating housing impacts without a mandate to construct deed-
restricted rental housing as a condition of approval.
40 City of Aspen Land Use Code § 26.470.010 (C).
41 See e.g., Koontz, 133 S. Ct. at 2598 (2013) (recognizing the availability of at least one constitutional
alternative as grounds for meeting constitutionality, but rejecting application in the case).
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b) Recommendation
While some Colorado jurisdictions have, in fact, precluded use of a fee-in-lieu option –
perhaps for good policy reasons – we nevertheless recommend the City retain the fee-in-lieu
option, while monitoring any legislative or judicial action taken regarding housing mitigation
legal authority. The fee-in-lieu offers more options to developers for complying and decreases
the chances of a legal challenge being successfully brought against the City.
2. What are the policy ramifications and legal issues with regard to the thresh-
olds and conditions under which an applicant may pay fee-in-lieu as a com-
pliance options?
a) Discussion
Currently, developers may satisfy mitigation regulations by fees-in-lieu either:
1. By right, for developments generating less than .1 of an FTE in housing demand;
or
2. By approval of City Council, based on listed criteria in the GMQS chapter.
As noted above, Aspen – like many communities with critical affordable housing shortages –
has encouraged mitigation through constructed housing, instead of monetary contributions,
in order to stimulate housing availability closer in time to the impact being created by new
development. This has been accomplished by limiting the availability of the fee-in-lieu
alternative to new developments generating less than .1 FTE of housing demand or those
which demonstrate impracticability, good-faith efforts to procure built housing (including
through credits), and advancement of near-term housing goals.
What are the ramifications on the City’s housing program, of further encouraging fee-in-lieu
alternatives or, conversely, of encouraging increased use of fee-in-lieu? In other words,
should the City expand use of or limit use of fee-in-lieu?
First, we recommend maintaining an option to mitigate through fee-in-lieu based upon a
showing of impracticability, either due to site constraints, the market, or other factors. This
protects both private property interests (in moving forward more quickly) and the City’s
housing objectives (in maintaining its role in the production of affordable housing).
Second, as discussed in the preceding section, there are legal and practical reasons
to include the fee-in-lieu option and we believe its availability support’s the City’s legal
position. That question will be answered based on market and site conditions. Therefore, we
recommend the current by-right threshold of .1 FTE not be lowered at this time.
But, what then would the likely impact of raising the fee-in-lieu threshold on the production
of affordable housing? Recall, fee-in-lieu revenues are used solely by the City for the
construction of housing. They are not passed along to private developers of affordable
housing. These developers receive contributions, or participation, through a private credit
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market created by the City. Therefore, if the threshold were increased and more fees-in-lieu
were used for mitigation, more resources might accrue to the City for its building program,
while possibly lowering the demand for private sector credits. In addition, encouraging
greater use of fee-in-lieu may augment the defensibility of the program, unless the general
assembly passes legislation regarding the Telluride decision.
Therefore, the question the City must address is whether a change in the fee-in-lieu qualifying
threshold would create a meaningful change in the amount of affordable housing produced?
The answer will depend on the extent to which – given Aspen’s geography and tight housing
market – the City and private developers each has the ability to continue to generate housing
in the long-term?
1. Is the public sector uniquely positioned to avail itself of land opportunities and
resources that the private sector is not?
2. Will the City’s lack of control over the availability and pricing of credits result in a
lack of mitigation opportunities to developers who cannot secure a credit in the
private market?
3. Are other constraints on the credit system (e.g., there being no requirement that
credit-holders make their credits available on the market) such that increased
use of fee-in-lieu would not create a noticeable impact on the credit market?
4. Are City staffing and other resources sufficient to take on more of the
responsibility for affordable housing production long-term?
b) Recommendation
On balance, consistent with our discussion in the preceding section, we recommend the
City maintain or encourage increased use of fee-in-lieu, but that it does not reduce the
threshold for using fee-in-lieu at this time. In fact, the City may consider an approach similar
to Pitkin County’s which – though called an “impact fee” by some – would require a monetary
contribution as the default means of mitigation, rather than actual construction at the time of
development. This would give more control to the City over the mitigation it receives, which
could continue to include subsidies to private sector builders of affordable housing.
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3. What are the implications of the City’s fee-in-lieu thresholds on the City’s
housing credit program?
a) Discussion
As discussed in the Methodology section, Section III, the City’s fee-in-lieu and AHC programs
are separate and distinct from one another. The fee-in-lieu concept was part of the City
GMQS prior to the introduction of the credit program in 2010. In addition, the revenue
streams generated by payment of fee-in-lieu and by purchase of credits flow to separate
entities and are used in distinctly different ways, though both have been effective at producing
affordable housing. Therefore, we were not able to conclude that the amount of the City’s
fee-in-lieu has a significant or overriding effect on the private sector value of a credit.42
b) Recommendation
While it may be that an increase in the use of fee-in-lieu (whether through a regulatory
loosening or a reduction in their amounts) may reduce use of the credit program, it is
uncertain the extent to which one would affect the other. The credit market and “credit
economy,” so to speak, are simply too small and there are too many factors at play within
them to support a recommendation to revise one or the other to achieve an expected
outcome of ultimately affecting the credit market or the long-term affordable housing stock.
The relationship between the amount and availability of fee-in-lieu is simply to complex.
D. ADDITIONAL POLICY CONSIDERATIONS
1. Income Categories of Affordability
Currently, the City has adopted seven categories of relative affordability, based on the level
of income associated with the employees generated by new development.43 However,
consistent with APCHA guidelines, only Category 1-4 units may be provided as required
mitigation; although voluntary units may be provided for higher income categories.
Currently, individual developers are working on a case-by-case basis with APCHA to
determine the most applicable income category for a given development. During the nexus
study update, the City should affirm its approach in this area and evaluate whether a different
approach should be considered.
42 Of course, assuming the demand for housing remains constant, and if credits were readily available on the
free market, at any time, to any interested buyer, it might be that an increase in fee-in-lieu amounts might
increase the value of a credit.
43 City of Aspen Land Use Code § 26.470.050(E).
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For example, the City of Carbondale requires a mix of categories for each development
project, by “cycling” through income categories 1-4. For example, a development with 6
affordable units is required to provide one each in categories 1-4 for the first four units, then
an additional one categories 1 and 2 for the fifth and sixth units. Any change in policy, of
course, should follow discussion with and input from APCHA.
2. Exemptions and Applicability
Currently, there are a number of land uses that are not subject to the City’s housing
mitigation.44 Some do not create the need for new housing, like residential remodels. Others
reflect methodological and policy objectives, like common areas in multi-family not being
counted as employee-generating or upper and basement floor nonresidential being subject to
a 25% reduction in employee generation rate.
Exemptions also should be revisited during the nexus study update to confirm their current
applicability and to measure their impact on the production of affordable housing and on the
reasonableness or proportionality of mitigation regulations.
3. Mitigation Review Processes & Credit Issuance
Section 26.470.080 lays out the approval processes for development subject to the GMQS,
including paragraph (D), which addresses the housing mitigation component. Section
26.540.080 of the credit program provides for the issuance of affordable housing credits at
the time certificates of occupancy are issued for mitigation housing.
During the update process, the City should revisit these processes as well. It is important that
each approval process reflect a level of review that balances the public’s interest in housing
mitigation and private sector’s need for predictability and efficiency. Are there any barriers
that can be removed or revamped to encourage more participation in programs the City
wishes to advance?
One thing, for example, we have heard from stakeholders is that private sector providers of
affordable housing would benefit from the City issuing credits – or some credits – sooner
than certificate of occupancy for deed restricted units; perhaps upon completed framing or
plumbing inspections. This might create a commodity for the developer to recoup some
costs sooner in the process. Of course, while this may well be a reasonable change, it must
be balanced against the public’s interest in knowing that the affordable housing will, in fact,
be completed. Staff and the development community have discussed whether a reasonable
and simple performance bonding requirement might address this need.
44 City of Aspen Land Use Code § 26.470.070.
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REPORT RECOMMENDATIONS
& NEXT STEPS
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V. REPORT RECOMMENDATIONS &
NEXT STEPS
A. IN GENERAL
The community’s interest in providing affordable housing continues to be urgent, both in
terms of quality of life and the ongoing success of the local economy. Perhaps most critical,
however, is the fact that current construction costs per square foot are approximately forty
percent (40%) higher than estimated costs in 2015, the last time the fee-in-lieu was updated.
This amounts to roughly an eight percent (8%) average annual increase.
Therefore, we recommend the City pursue its nexus study in Task 4, to confirm ongoing legal
compliance and to assess the extent revisions may increase affordable housing production.
In doing so, we further recommend the City revisit several specific variables that are
components of its fee-in-lieu program and process.
The overarching objectives of a fee-in-lieu study update are to ensure:
1. costs component is up-to-date and reflects the Aspen market and environment;
2. the updated fee-in-lieu is fair and sufficient to meet the full cost of the demand
for affordable housing created by new development; and
3. the updated fee-in-lieu calculation is transparent and easily updated.
Legally speaking, the update will:
1. Maintain and verify the proportionality of the City’s mitigation regulations over
time;
2. Sufficiently document the nature and extent of the City’s affordable housing
challenge, demonstrating the reasonable and rational basis for its land use
regulations;
3. Seek community and developer support in maintaining an approach that is both
effective and defensible;
4. Monitor relevant legislative and, if applicable, judicial changes to guide the
update; and
5. Simplify the GMQS and AHC program where possible and revise to remain
consistent with and not redundant of APCHA Guidelines.
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A full update to the fee-in-lieu study is standard procedure for fee studies. Impact fee and
other mitigation or linkage fee studies typically are updated every three to five years to
account for changes in economic and other conditions in a community. We recommend that
the following specific elements be addressed as part of the City of Aspen’s fee-in-lieu update:
»Total development costs (land acquisition, construction costs (soft,
hard, etc.));
»Assumptions regarding the City’s share of total development costs;
and
»Assumptions regarding revenue streams per unit category (which
may also require assumptions regarding whether units are rental or
for sale at different category levels)
If the City desires to update only the cost and revenues on which the fee-in-lieu is based, then
the above components will suffice. However, a more comprehensive evaluation would also
include: employee generation rates; mitigation requirement rates; and occupancy standards
(i.e., square footage of housing per FTE to be provided
to mitigate the impact). Changes to any of the above
assumptions will affect the fee calculation.
Such an update is important to ensure core component
variables are current and reflect recent market trends,
which may or may not ultimately impact the amount of
the fee-in-lieu finally adopted. Nonetheless, the update
should evaluate each component either to verify its ongoing
accuracy in today’s market or to be updated.
The following summarizes the recommendations of this
report and outlines the recommended next steps for the
update study.
During its next update,
the City also should revisit
employee generation
rates, mitigation rates,
and occupancy standards
(FTEs / affordable
housing dwelling unit),
in addition to costs and
revenues estimates.
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B. METHODOLOGY RECOMMENDATIONS
1. Use a “cost-driven” approach to update the fee-in-lieu calculations, in order to
capture full net costs of construction. The update should include updated cost
figures based on recent and representative City affordable housing projects,
the City’s share of costs to development, and applicable revenue assumptions
based on income levels targeted for affordable units. If permissible, determine
whether it is appropriate to consider the City’s costs for staff time, overhead,
and other related “soft” costs.” Assuming fee-in-lieu revenues continue to be
used solely for City projects, actual costs should be reduced by anticipated
revenues from sales, rentals, and other sources that will accrue to the City.
The recommended formula is depicted graphically in the Executive Summary
as well as in Section III. Note that changes to FTEs/demand unit, the mitigation
rate, and costs (show in orange in the depiction) would impact the fee-in-lieu
amounts per FTE generated (see Methodology Recommendation #6, below).
These variables will be revisited and confirmed during the Task 4 full fee study
update.
2. Calculate land and construction costs separately during the update and annual
adjustments. Despite the challenge of incorporating land costs into a static
formula, assumptions can be made, based on the anticipated end use of fee
revenues. Use of the fees, as to land, will vary according to the location of lands
anticipated for the City’s development of affordable housing.
3. Calculate costs and revenues “per square foot” to set the fee-in-lieu and to
simplify the initial calculation, as well as annual adjustments. The cost per
square foot can then be shown by land use type or “per FTE,” as needed.45 For
consistency, the same square footage factor should be used between bedrooms
and FTEs mitigated, for both the fee-in-lieu and AHC program.
4. The City should base its annual fee-in-lieu adjustments on the Engineering News
Record (ENR) Construction Cost Index (CCI). This approach will reasonably
capture Aspen’s market trends and realities, particularly if:
a. the National ENR CCI is used, not the city-specific CCI, which is
susceptible to localized price fluctuations due to labor markets,
weather, and other trends, which may not reflect the unique location
and environment of Aspen; and
b. the City makes the annual adjustment consistently each year.
As noted in 2. above, land costs should be addressed separately during annual
adjustments, in order to better reflect Aspen-specific changes in construction
costs.
45 The current Land Use Code establishes a conversion factor of 400 square feet of net livable area per FTE.
See § 26.470.050. Therefore, a simple calculation emerges, using the rounded down gross cost per square
foot from recent City affordable housing projections, based on land and construction.
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5. While the amount of the fee-in-lieu may impact the value of private market
credits in some instances, the connection between the two could not be
established strongly enough to amount to a recommendation regarding the fee-
in-lieu update.
6. Revisit the following component variables of the housing mitigation program, for
verification or update:
a. employee generation rates;
b. residential and nonresidential mitigation rates; and
c. employees per residential dwelling unit (i.e., square feet of dwelling
unit per employee).
C. POLICY RECOMMENDATIONS
1. Retain the fee-in-lieu option. Monitor legislative or judicial changes during the
City’s nexus study update.
2. Maintain or increase, but do not decrease, availability of the fee-in-lieu option as
an alternative means of complying with the GMQS.
3. Future policies and methodologies should be based on legal defensibility,
fairness, and effective production of affordable housing, and not the amount of
the fee-in-lieu relative to the value of affordable housing credits.
4. Consider whether revisions to components of the housing mitigation program
would increase the availability of constructed affordable housing for Aspen
employees, including:
a. whether additional income categories of affordability should be
considered as qualifying mitigation;
b. whether existing exemptions and applicability criteria continue to
meet City objectives;
c. whether current processes for mitigation approval, qualifying
thresholds, and credit issuance and timing, can be revamped to
encourage greater participation or efficiency of process.
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D. THE BIG PICTURE
As the ten key recommendations above show, one must take into account many overarching
considerations when updating or revising programs as structurally and legally complex as
housing mitigation. For example, we have recommended the cost component of the updated
fee-in-lieu be based on actual project costs the City will incur to provide housing. This is
premised on the continued use of fee-in-lieu revenues on City, not private-sector, projects.
Were the City either (a) to use fee-in-lieu revenues to fund private development projects; or,
conversely (b) to no longer maintain the credit program, then the cost assumptions in the
calculation of the fee would be reflect these changes in policy.
Therefore, in light of the current market environment and the City’s housing objectives moving
forward, we recommend the City consider whether:
1. the role or levels of participation of the public and private sectors in the updated
program should be evaluated, to ensure fee expenditures remain consistent with
study cost assumptions;
2. fee-in-lieu will continue to be used solely for City projects or will be shifted at all
to private sector projects;46
3. the fee-in-lieu and AHC programs each remain an effective and viable means of
generating new affordable housing;
4. bonuses or waivers should be used to incentivize private sector participation in
the AHC program or to address issues of voluntariness; 47
5. dormitory or other housing types are appropriate forms mitigation today;
6. the geographic areas within which qualified mitigation is eligible should be
expanded or revised; and
7. the City should take on an increased role in administering and monitoring the
AHC program.
In consideration of these “big picture” items, we recommend the City proceed to Task 4 of the
project, development of a fee-in-lieu update study.
46 See Boulder County’s competitive bid process for disbursing county sales and use tax revenues to non-
profits and housing authorities, as a resource or guidance.
47 The district court, in Meyerstein v. City of Aspen, found that a deed restricted unit was the result of a
voluntary agreement, since it was entered into by the City and a private party without evidence of threat,
duress, or lack of reasonable alternatives. See No. 13CA0330, 5-6 (Jan. 20, 2014) on remand from
Meyerstein v. City of Aspen, 282 P.3d 456 (Colo. Ct. App. 2011).
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APPENDICES
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APPENDIX A: GLOSSARY AND LIST OF ABBREVIATIONS
Affordable Housing Credit (AHC) Program: The City of Aspen’s program, adopted in 2010,
encouraging private sector production of affordable housing and a market for City-issued
credits reflecting capacity created for additional FTEs. The AHC program is set forth in the City
of Aspen Land Use Code, Chapter 26.540.
APCHA: Aspen Pitkin County Housing Authority
CCI: Construction Cost Index published by ENR. CCI is built with 200 hours of common labor
at the 20-city average of common labor rates, plus 25 cwt of standard structural steel shapes
at the mill price prior to 1996 and the fabricated 20-city price from 1996, plus 1.128 tons of
portland cement at the 20-city price, plus 1,088 board ft of 2 x 4 lumber at the 20-city price.
FTE: Full-Time Equivalent. Number of full-time jobs created by market rate development, which
require new affordable unit(s).
Market-Affordability Gap: Gap between market price of a residential unit and the price that
is affordable to households with incomes being served by the locality’s affordable housing
program. This method was proposed in the 2012 study for the City of Aspen by RRC.
Cost Driven Methodology (aka Affordability Gap): This approach calculates the fee based
on the difference between total costs to develop a housing unit and the price affordable to
households with incomes being served by the locality’s affordable housing program. This is the
current City of Aspen fee-in-lieu methodology.
Employee Generation Rates. The demand for affordable housing generated from new
development; that is, the number of employees (FTEs) created by and required to be housed as
a result of an increment of new development activity. Current employee generation rates, based
on earlier studies, are set forth at § 26.470.050(E), Table 3, of the Land Use Code.
ENR: Engineering News Record. Engineering News-Record provides engineering and
construction news, analysis, commentary and data used by construction industry professionals.
ENR publishes the construction cost indices, Construction Cost Index and the Building Cost
Index.
Mitigation Requirement Rates. The percent of total number of FTE employees generated,
which each unit of new development is required to mitigate. Section 26.470.080 of the Land
Use Code sets forth the City’s current mitigation requirements for residential and nonresidential
development.
Monetary Contribution: Mitigation provided by payment of cash or other payment, including
fee-in-lieu, not including constructed units or submission and extinguishment of a credit.
Impact fee: One-time payment made at the time of development to construct system
improvements needed to accommodate the demand for public facilities for new development.
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Land Acquisition Cost: Cost to purchase land (for affordable housing projects)
Construction Cost: All other costs necessary to deliver affordable housing except land
acquisition. This includes pre-development, off-site and on-site infrastructure, soft costs,
developer fee, financing costs, and construction.
Total Development Costs: All costs to develop affordable housing.
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APPENDIX B: CASE STUDIES
Our case studies are presented here. First, an overview of the primary components of each of
the six programs summarized is provided. Next, a detailed description of each jurisdiction’s
program is presented, highlighting the elements relevant to the City of Aspen. Finally, a
matrix is presented, which summarizes the six program and describes, for each one, how the
jurisdiction addresses the following key components:
1. The title and/or statutory reference to the jurisdiction’s program;
2. Latest supporting studies;
3. Development subject to the particular program;
4. Exemptions from the program;
5. Methodology used;
6. Amount of any fees assessed, if applicable;
7. Fee collection point in the application process, if applicable;
8. Alternative options for compliance;
9. Allocation of collected revenues; and
10. Updates to the program for that jurisdiction.
1. Introduction & Overview
The following case studies contain a summary of current methodologies employed for
affordable housing fees in a sample of jurisdictions throughout the United States. These
programs include a mixture of inclusionary development policies, fee-in-lieu programs, and
linkage fees.
The programs were evaluated on the following criteria to compare to the City of Aspen’s fee-
in-lieu program: current activity of the program (active vs. inactive), methodology, amount,
update frequency, and their use of fee revenues. A summary of these findings is below with
the full case studies provided in the following section of this Appendix.
a) San Francisco
The City of San Francisco, CA has two methods of providing affordable housing, the
Affordable Housing Fee and the Jobs-Housing Linkage Fee. The Affordable Housing Fee is
part of the Inclusionary Affordable Housing Program. The Jobs-Housing Linkage fee has been
in effect since 2002 and is applied on a per unit basis. The amount of the fee is $57.14 per
square foot for projects approved before September 10, 2019 and $63.37 per square foot
for projects between that data and January 1, 2022. Fees are used for affordable housing
development and preservation, as well as permanent supportive housing.
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b) Boston
The City of Boston, MA has the Inclusionary Development Program and Linkage Program
as their two sources for affordable housing fees. The IDP has been in place since 2000 to
support income-restricted/affordable housing and applies to proposed market-rate housing.
Boston’s Linkage program was established in 1983 and enacted into law in 1987. The
program charges $10.82 per square foot total in excess of 100,000 square feet, with $9.03
attributed to housing and $1.78 for jobs. The linkage program’s fees are split between the
City’s affordable housing and jobs funds for affordable housing and job creation. Updates are
not annual or automatic.
c) Seattle
The City of Seattle, WA has the Mandatory Affordable Housing program, a commercial
zoning linkage fee program that was adopted in November 2015. The program applies to all
new commercial development and charges an amount dependent on proposed zone and
amount of density, as further detailed in the report. The funds are used for affordable housing
production. Updates are performed yearly based on the Consumer Price Index adjustment
method.
d) Boulder
The City of Boulder, CO’s Affordable Housing Commercial Linkage fee program has been in
place since 2009 and will charge $20 per square foot for retail and $30 per square foot for
office uses by 2021. The program’s fees are attributed to affordable housing production and
updates are not yearly.
e) San Diego
The City of San Diego’s Housing Impact Fee was established in 1990 and applies to
commercial projects. The amount of determined by non-residential space multiplied by the
applicable fee for type of use, which ranges from $0.80-$2.12 (based on type). The fees are
used for workforce housing development and are not updated yearly.
f) East Palo Alto
The City of East Palo Alto has affordable housing impact fees that apply to commercial
projects and residential. The commercial fee is $10.72 per square foot, and residential
fees are between $23.25-$67.62, dependent upon housing type. The fees are used for the
provision of affordable housing units and costs of administering the program. The residential
fee is updated yearly based on percentage change in the Freddie Mac-San Francisco-
Oakland-Fremont MSA Housing Price Index.
All of the programs evaluated use the same cost-driven methodology as the City of Aspen to
calculate their fees.
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Most operate in high-cost areas and have implemented affordable housing fees as part of a
larger housing strategy.
A key distinction is that several programs apply only to commercial developments as a
“linkage” fee connecting the creation of jobs from nonresidential development—at a range of
income levels—to the need for affordable housing.
Most fees include a provision for regular updates to fee schedules, however the
methodologies vary.
Other similarities among the programs include the use of funds for direct affordable housing
development or preservation and the opportunity to mitigate impacts using alternative
approaches such as constructing housing on- or off-site.
2. Case Studies Detail
a) San Francisco, CA: Affordable Housing Fee and Jobs-Housing Linkage Fee
• Active program: Programs are both active
• Methodology:
o Both fees: Cost-Driven Approach 48(total development cost less revenue
from rents, mortgage payments, other sources; calculation is based on City
subsidy)
o The maximum Affordable Housing Fee per residential square foot is
calculated using costs to construct affordable housing (development and
land) (validated using certified costs from the Mayor’s Office of Housing and
Community Development (MOHCD)) less revenue from unit sales or revenue
o The maximum Jobs Housing Linkage Fee per square foot of nonresidential
gross floor area is determined by a nexus analysis that multiplies
Affordable Unit Demand Factor (e.g., the number of affordable units
demanded from the nonresidential development)
by the required net subsidy to deliver each unit of affordable housing
in San Francisco (“affordability gap (construction costs)”) and
48 It is noted that where the methodology/approach is labeled as “Cost Driven” in this document, the
technical term in supporting studies (e.g., nexus studies) is the “Affordability Gap” methodology. However,
to simplify the discussion herein, we relabel this methodology as “Cost Driven” to distinguish between the
original City of Aspen methodology, called “Market-Affordability Gap” (i.e., the gap between a market value
purchase price and an affordable purchase price), and these methodologies that use total development
costs (i.e., land, construction, and soft costs) as the basis to derive affordable housing fees (and the gap
between costs and available revenues from the unit).
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then dividing by 1,000 square feet. (Per the nexus study, the
maximum amounts are not meant to be recommended amounts but
the result of the analysis.)
• Amount:
o Affordable Housing Fee: Assessed on residential development: $210.47
per square foot of Gross Floor Area; applied to applicable percentage
of projects (from 20 to 33 percent) based on size and ownership style of
project. The San Francisco program shifted to a fee per square foot from a
fee per dwelling unit.
o Jobs-Housing Linkage Fee: Assessed on nonresidential development:
$57.14 per square foot for projects approved before September 10, 2019
and $63.37 per square foot for projects submitted between then and
January 1, 2022.
• Use of Fee Revenues: Affordable housing development, preservation and
permanent supportive housing
• Yearly updates:
o Affordable Housing Fee: Mayor’s Office of Housing and Community
Development annually adjusts the fee based on actual cost to subsidize
affordable housing units over the past three years. Each year the analysis is
updated to include new projects from the most recent year and drop older
projects that no longer fall into the three year period of analysis. (Other
development impact fees in the City are adjusted by the City Controller.)
o Jobs Housing Linkage Fee: Mayor’s Office annual adjusts the fee based on
actual cost to subsidize affordable housing units over the past three years.
Each year the analysis is updated to include new projects from the most
recent year and drop older projects that no longer fall into the three year
period of analysis. (Other development impact fees in the City are adjusted
by the City Controller.)
The City of San Francisco has the Inclusionary Affordable Housing Program (Section 415
of the Planning Code) that requires all residential projects of 10 or more dwelling units to
pay the Affordable Housing Fee, or elect an alternative method of compliance, including
providing affordable units on-site, off-site, or via the land dedication or small sites option in
certain cases. The program has been in effect since 2002 and is governed by the Planning
Code Section 415 and Inclusionary Housing Program Procedures Manual, administered by
the Mayor’s Office of Housing and Community Development (MOHCD).
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As of January 2019, the Affordable Housing Fee is applied on a Gross Floor Area basis to
ensure that MOHCD actual costs to construct the required amount of off-site affordable
housing is appropriately and equitably captured from all projects, regardless of the size and
number of units distributed within the project. MOHCD, in consultation with the Planning
Department, converts MOHCD’s per unit cost to a per-square-foot fee, based on the average
residential Gross Floor Area of projects that have paid the fee in the past three years. The fee
amount indicated below has been calculated based on those standards.
The current Affordable Housing Fee is $210.47 per square foot of Gross Floor Area of residential
use that is applied to the applicable percentage of projects in the following categories:49
»Small Projects (fewer than 25 dwelling units): 20% of the project’s
Gross Floor Area of residential use (e.g., 20 percent of market rate
gross floor area x current fee per square foot)
»Large Projects (25 or more units) Rental: 30% of the project’s
Gross Floor Area of residential use
»Large Projects (25 or more units) Ownership: 33% of the project’s
Gross Floor Area of residential use
In addition to the Inclusionary in-lieu fees generated from the Affordable Housing Fee,
San Francisco also leverages the Jobs-Housing Linkage Fee (JHLF) on nonresidential
development for affordable housing development. The Jobs-Housing Linkage fee was
named based on the imbalance between housing affordability and the jobs and wage levels
being created by the city’s economic conditions. It is meant to convey the funding source
as a potential solution. JHLF has been in place since 1996 and is triggered by an increase
of 25,000 GSF or more of any combination of entertainment, hotel, integrated PDR, office,
research and development, retail, and small enterprise workspace uses. If the JHLF is not
paid, the option exists to fund off-site affordable housing or pay in-lieu fees. In-lieu fees are
calculated per GSF on two different fee schedules for net additions of GSF and replacement
of use or change of use for properties.
The JHLF program is controlled by the Planning Department and MOHCD. Fees are assessed
by gross square foot of nonresidential development, which varies by type of nonresidential
land use. The city has collected a yearly average of $7.5 million from the fees to fund
affordable housing projects. However, the fee has not been updated in some time. The city
conducted an update to its 1997 nexus study in May 2019 to assess what a new rate could
be for the fee.
In October 2019, the San Francisco Board of Supervisors approved an increase to the
development fees for new commercial space from the previous amount to $57.14 for projects
approved before September 10, 2019 and $63.37 for projects submitted between then and
January 1, 2022. This increase has been somewhat controversial, as it more than doubled
the fee. In addition, an economic impact report produced by the city states that while the
49 https://sfplanning.org/sites/default/files/forms/Impact_Fee_Schedule.pdf
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fee could generate an additional $8 million to $9 million annually on top of the current $12.3
million baseline, the city is projected to lose 125,000 to 140,000 square feet of office space
annually from its baseline of 430,000 square feet a year due to the impacts from the fee. That
equals a net job loss of 1,275 and 1,500 over the next 20 years.
Resources:
Keyser Marston Associates, Inc., “Jobs Housing Nexus Analysis: San Francisco, California,”
May 2019.
San Francisco Planning Department, “Planning Code Text Amendment, Jobs Housing
Linkage Fee,” Hearing Date September 19, 2019. https://commissions.sfplanning.org/
cpcpackets/2019-011975PCA.pdf
San Francisco Planning Department, “Planning Director Bulletin No. 1, An Overview of
Development Impact Fees,” December 2014 (revised April 2016).
https://default.sfplanning.org/publications_reports/DirectorsBulletin01_Impact_Fees-
April2016.pdf
City and County of San Francisco Mayor’s Office of Housing and Community Development,
“Inclusionary Affordable Housing Program: Monitoring and Procedures Manual, October
11, 2018. https://sfplanning.org/sites/default/files/documents/legis/inclusionary-affordable-
requirements/Inclusionary%20Affordable%20Housing%20Program%20Manual.pdf
San Francisco Citywide Development Impact Fee Register (Updated as of December 1, 2019,
rates effective as of January 1, 2020). https://sfplanning.org/resource/development-impact-
fee-register
City of San Francisco, Current Impact Fee Schedule https://sfplanning.org/sites/default/files/
forms/Impact_Fee_Schedule.pdf
b) Boston, MA: Inclusionary Development Program and Linkage Program
• Active program: Currently active; second largest source of funding for
affordable housing collected through linkage policy.
• Methodology:
o Cost-Driven Approach (total development costs less rental or mortgage
revenue)
o Linkage fee was established in 1987; initial methodology unknown.
o Updated program in 2018 was determined by the Cost-Driven Approach,
with fee calculated based on the cost to fill the financing gap between
the cost to develop an affordable housing unit and the amount of
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financing supported by income from rents and sales by 20-25%
• Amount:
o $10.81/sq. ft. total of GFA in excess of 100,000 sq. ft, broken down as:
$9.03 for housing and
$1.78 for jobs
• Use of fee revenues:
o Housing and job creation
o The fee is split between housing and job linkage contributions, meaning
that the revenue from the fund goes to the Neighborhood Housing Trust &
Neighborhood Jobs Trust, Boston’s accounts for affordable housing and job
creation
• Yearly updates:
o Not annual or automatic.
o Increases may occur every 3 years to reflect rise in inflation based on CPI.
o Recent Home Rule Petition (2019) gives the city more flexibility in annual
adjustments to align more closely with market, unclear what that will be yet.
The City of Boston has had the Inclusionary Development Policy (IDP) since 2000 to support
income-restricted/affordable housing through the leveraging of private development. The
IDP applies to any proposed market-rate housing development (and is not assessed on
nonresidential development) that has ten or more units and (a) requires zoning relief; or (b) is
financed by the City, or (c) is built on property owned by the City.
Since Boston’s program relies on mitigation provided by new development, the IDP’s success
relies on private development of housing and when it slows (as it did in the last recession) few
new affordable units are created. The City set IPD requirements at ten or more units to ensure
that creation of income-restricted units would continue without discouraging developers from
building market rate housing. Through IDP, developers have contributed $137.1 million to the
IDP Fund and supported the completion or preservation of 1,414 additional units of housing.
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Figure 11. City of Boston 2015 Inclusionary Development Policy Requirements, by Zone
Source: Boston Planning and Development Agency (BPDA), Bridging the Gap: Creating Income Restricted Housing through
Inclusionary Development, 2018 Annual Report
Boston’s Linkage Program was established in 1983 and enacted into law in 1987. The fund
provides funds for both affordable housing and job training. The linkage payments are made
by developers either upon the issuance of a certificate of occupancy or 24 months after the
issuance of a building permit (whichever comes first), on projects that initially required zoning
approval. Linkage payments are split into two funds – the Neighborhood Housing Trust (NHT)
and Neighborhood Jobs Trust (NJT).
Developers are currently required to pay linkage fees that total $10.01 after the first 100,000
square feet, with $9.03 per square foot designated for housing and $1.78 for job training.
Developers can make linkage payments in 7 equal annual installments or they can create
housing in an amount equal to the cash requirement. From FY06 to FY15, the Linkage
Program generated over $51 million for affordable housing which contributed to the creation
of 2,181 new affordable units.
Previously, the fee could only be increased on three-year cycles to reflect the rise in inflation
based on the Consumer Price Index and on economic, housing, and employment trends. In
September 2019, the Mayor signed “An Act to Further Leverage Commercial Development
to Build Housing, Create Jobs, and Preserve Inclusionary Development”. This is known as a
“Home Rule Petition” and it will enable the City of Boston to have more flexibility through the
Linkage Program and is also designed to codify the IPD in Boston’s Zoning Code to protect
the City’s ability to create and fund income-restricted housing. The Home Rule Petition
would allow Boston to adjust the payment and program guidelines for the Linkage Program
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and align them more closely with the market. This locally-approved legislation needs to be
approved by the Massachusetts Legislature.
Resources:
Karl F. Seidman Consulting Services and ConsultEcon, Inc., “Linkage Nexus Study Final
Report to Boston Planning and Development Agency, December 2016, http://www.
bostonplans.org/getattachment/b883ad7f-fc1f-4c83-ac88-1334e519742d
Boston Planning and Development Agency (BPDA), “Bridging the Gap: Creating Income
Restricted Housing through Inclusionary Development, 2018 Annual Report.” http://www.
bostonplans.org/getattachment/fb05806a-d218-4a3b-bdef-e1221d7159d3
Memo to Boston Planning and Development Agency (BPDA), “Article 80: Development Project
Exactions,” June 14, 2018. http://www.bostonplans.org/getattachment/d5bdbc68-e7d1-
4784-b3c5-3b1d53573dcc
Boston Planning and Development Agency (BPDA), “Boston’s Inclusionary Development
Policy: Leveraging Private Development for Affordable Housing,” presentation, Nd. http://
www.bostonplans.org/getattachment/43eefea6-85ae-48ee-965a-6358ea84bc7e
Boston Redevelopment Authority, “Inclusionary Development Policy,” presentation, December
8, 2015. https://jpndc.org/wp-content/uploads/2014/12/City-Presentation-for-IDP-Rollout_
December-2015.pdf
c) Seattle, WA: Mandatory Housing Affordability-Commercial (MHA) Program
• Active program: Program is active; however, data is not available on collections
due to its newness.
• Methodology: 50
o Cost-Driven Approach (total development cost less rental or mortgage
revenue )
o The maximum amount of the city’s linkage fee was determined by a nexus
study in 2015 that utilized the affordability gap methodology.
o The per unit subsidy required to make new housing affordable to households
at target income levels was calculated by
subtracting per unit development costs
from the per unit mortgage supportable from affordable rents.
o The adopted fee is less than the maximum.
50 Seattle Developer Contributions - MHA
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o Fee is assessed on nonresidential, multifamily development, and live-work
development
• Amount: Dependent upon zone and amount of density, as well as residential vs.
commercial
o Commercial
Direct formula for calculation is (X-Y) x Z = Payment
• X is the total chargeable floor area in commercial use,
• Y is the chargeable floor area excluded from the calculation
and
• Z is the payment calculation amount per square foot
o Residential
[(X1 + X2) – Y] x Z = Payment
• X1 is the total gross floor area in residential use,
• X2 is the total gross floor area of live work units,
• Y is the floor area of residential/live-work parking located
underground excluded from calculation,
• Z is the payment calculation amount per square foot
• Use of fee revenues: No data yet for current MHA program; previous program
produced affordable units
• Yearly updates: CPI adjustment method
In 2001, the City of Seattle began using incentive zoning as a voluntary version of inclusionary
zoning and was applied to commercial buildings downtown. Over the decade, the program
expanded to include several downtown neighborhoods and residential development. Incentive
zoning allowed developers to build at greater height and density in the faster growing areas
of the city, in exchange for paying a fee for each additional square foot of floor space granted
by the program. The fees collected under the incentive zoning law were to be used to
support the production of affordable housing by non-profit builders. However, the number of
affordable units produced under the provision were insufficient, with only 714 affordable units
developed from 2001 to 2014.
To address this issue, in 2015 the Seattle City Council began considering proposals for a
mandatory linkage fee on all multifamily residential and commercial development citywide
(which would exclude 65 percent of the city zoned exclusively for detached single-family).
The proposed policy would have required payments ranging from $5 to $22 per square foot,
or a set-aside of 3 to 5 percent of units for affordable housing under 80 percent of area
median income (AMI). The proposed program would include no provision for additional zoning
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capacity as the incentive zoning did.
The proposed linkage fee encountered legal challenges from a group of Seattle developers
asserting that the fees was impractical and illegal under state law unless the fees were
voluntary and were needed to mitigate the impact of specific projects. The City recognized
that the proposal was likely to have only a 50 percent chance of surviving a legal challenge
based on the “taking” clause. Given this, the City embarked on a different direction and
began pooling policy recommendations from a created task force called the Seattle Housing
Affordability and Livability Agenda (HALA) committee. This committee created the Mandatory
Housing Affordability-Commercial (MHA) Program.
The MHA Program is Seattle’s current commercial linkage fee program and was adopted in
November 2015. The MHA Program is applied to all new commercial development as well as
a mandatory inclusionary zoning program. It is different from the incentive zoning program
in the sense that the program is implemented for any development that the City Council has
approved for a rezone that:
»increases maximum height or floor area ratio (FAR) limits or
»establishes a different zoning designation.
MHA applies to both City-initiated legislative rezones and applicant-initiated rezones.
The zoning code for the MHA Program allows for three options in providing affordable
housing:
»an onsite and offsite performance option
»fee-in-lieu option
»combination of the two
The amount of affordable housing required is first determined by zone and then square
footage of the proposed commercial space. For the first time in the City, this program would
require new multifamily and commercial development to contribute to affordable housing, as
well as increase development capacity wherever requirements were imposed.
When the MHA Program was first enacted, it received a fair amount of criticism, particularly
from the Seattle Coalition for Affordability, Livability and Equality (SCALE) which claimed
that implementation of MHA negatively affected individual neighborhood plans by increasing
bulk and scale in neighborhood areas. A judge ruled in favor of MHA in 2018, though the
plan made small changes in reference to historic preservation of areas. As of March 2019,
the Seattle City Council has voted to advance the policy. The City expects the program will
generate $380 million in revenue from the payment option and approximately 1,325 units over
the next 20 years.
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Figure 12. City of Seattle MHA Zone Requirements51
However, concerns still exist regarding preservation of neighborhood scale, and residents are
calling for modifications to MHA that incorporate anti-displacement measures. Low affordable
housing/in-lieu fees required of developers are viewed as inadequate to discourage increasing
land values for speculative development in many neighborhoods, especially places that have
been designated as at risk for high displacement. In addition, increased zoning capacity
creates a tipping point for price increases and speed of land sales, with purchase prices
potentially well over asking price and appraised values. The concern is that non-profit
developers and community-based groups will be unable to compete in the market.
Community groups (such as SCALE) have recommended revisions to the program such as:
1. Reevaluation of the MHA percent designation for neighborhoods with high
displacement risk.
2. Direct in-lieu fees generated from neighborhoods with high displacement risk
back to those neighborhoods.
51 The figure summarizes the current payment requirements. The MHA zone suffixes identify zones where
MHA applies (essentially areas where City Council has approved a rezone or established a different zoning
regulation, triggering the MHA). An “M” applies to standard zoning changes; “M1” is when a rezone is not a
standard zoning change and results in a zone in the next highest category (e.g., a lowrise 1 zone becomes a
lowrise 3). “M2” is when a zone moves two or more categories higher (e.g., a single-family zone becomes a
lowrise zone). Low, medium, and high areas correspond to location in a low, medium, or high development
capacity area for higher performance and payment options. The chart combines the performance and
payment options, with the percentages reflecting the share of units that must be set aside as affordable
housing for that particular category. The dollar amount is the payment option amount per square foot.
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3. Determine a permanent and adequate funding source for equitable development
funds.
4. Develop a district-wide online notification system to alert stakeholders to new
development activity in their neighborhoods.
5. Commit to developing policy and funding to support affirmative marketing, right
to return, or preference policies in neighborhoods
6. Create a comprehensive strategy to help keep low-income or fixed income
single family homeowners in place.
7. Create a temporary City-wide anti-displacement voucher program to help
residents stay in place while MHA units are still under construction.
8. Update the “Seattle Housing Levy Administrative and Financial Plan,” for MHA
fund distribution.
9. Develop and implement zoning overlay districts that preserve existing
institutions and businesses.
Given the legal battles and modifications to the program, funds have not yet been collected.
Resources:
David Paul Rosen & Associates, Seattle Affordable Housing Nexus Study and Economic
Impact Analysis (Administrative Review Draft), May 13, 2015
https://www.seattle.gov/Documents/Departments/Council/Issues/Seattle_R_Nexus-
ARD-051315.pdf
“How MHA Works,” March 2019 https://www.seattle.gov/Documents/Departments/HALA/
Policy/How_MHA_Works.pdf
Seattle Department of Construction and Inspections, “Seattle Permits: Tip 257, Developer
Contributions: Mandatory Housing Affordability, May 23, 2019. http://www.seattle.gov/DPD/
Publications/CAM/Tip257.pdf
d) Boulder, CO: Affordable Housing Commercial Linkage Fee
• Active program: Program is active
• Methodology:
o Cost-Driven Approach (total development cost less revenue from rents,
mortgage payments, other revenue such as tax credits)
• Amount:
o Depends on land use
o Fee schedules are slated to increase to $20/square foot for retail and $30/
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square foot for office by 2021
• Fee Revenues: Provision of affordable housing
• Yearly updates: Unclear; most recent update in 2018 (which was more policy
driven).
Boulder’s Affordable Housing Commercial Linkage Fee (first adopted in 2009) is used to
fund additional affordable housing and is assessed on any project with a non-residential
component. All funds are directed to the city’s affordable housing fund. The fee was first
adopted as an optional program for non-residential developers. Projects within the downtown
zoning district could pay into the city affordable housing fund and in exchange receive a
boost in the amount of building floor space allowed on a parcel. Over its lifetime, Boulder has
collected approximately $6.9 million for affordable housing, including almost $1.6 million paid
or invoiced in 2019.
In 2016, the City revised its Commercial Linkage Fee with a full updated nexus study and
process. The methodology used was a market-affordability gap analysis. An overview of the
nexus study approach is shown below in Figure 13.
Figure 13. City of Boulder Graphic Representation of Nexus Study Approach
Source: City of Boulder, City Council Agenda Item, Discussion and direction regarding potential revisions to the
affordable housing commercial linkage fee, February 20, 2018.
Legally supportable amounts by nonresidential land use were calculated using the market-
affordability gap methodology and were meant to represent the total cost to mitigate the
need to mitigate affordable housing impacts from nonresidential development. Nexus studies
may result in fee amounts considered by the community to be too high to be adopted at the
maximum amounts. This was the case in Boulder so options were presented to City Council
considering modifications based on economic and market conditions, housing policy goals,
commuting adjustments, and comparable community assessments.
In 2016, City staff recommended $15 per square foot for office use (from a maximum
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defensible fee of $58.40 per square foot). The Council adopted a $12 per square foot fee on
office (with rates on the other nonresidential land uses scaled commensurately).
At the time of the 2016 nexus study, the City also had an Affordable Housing Excise Tax that
was assessed on all residential and nonresidential development. The Housing Excise Tax was
repealed at the same time the Linkage Fee was adopted.
In May 2018, Boulder City Council adopted phased changes to the affordable housing
commercial linkage fee from $12 per square foot to $30 per square foot by 2021 for office
uses, a 150 percent increase from the previously adopted fee. For 2019, the fee increased to
$18 and will be $24 in 2020. The fee increase puts Boulder’s fee just behind San Francisco
and Palo Alto’s fees, which are the highest in the country at $57 and $35 per square foot,
respectively.
The linkage fee is assessed by type of nonresidential development, with office being the
highest. Qualified non-profits are eligible for reduced rates and developments that propose
affordable commercial space are eligible for reduced rates. A new broad class titled
“Affordable Commercial” was created for owners of new commercial space that choose
to restrict commercial space to be “affordable.” Additional information on the affordable
commercial space program is yet to be determined.
Figure 14. City of Boulder Affordable Housing Commercial Linkage Fee: Phased-In Rates (2018)
2018 2019 2020 2021
Office 12.41$ 18.27$ 24.14$ 30.00$
Retail/Restaurant 8.27$ 12.18$ 16.09$ 20.00$
Hospital 8.27$ 12.18$ 16.08$ 20.00$
Institutional 4.14$ 6.09$ 8.05$ 10.00$
Warehousing 4.14$ 6.09$ 8.05$ 10.00$
Light Industrial 7.24$ 10.66$ 14.08$ 17.50$
As of 2019, experts on the city’s real estate market are concerned that the expense to new
projects may cause a slowdown in commercial development in Boulder. Local business
leaders, landlords, and developers have expressed concern that these increases could
have the unintended effect of pushing small companies out of Boulder and leave the door
open only to large corporations. Business leaders are also concerned that homes produced
with linkage fee revenue may end up being more expensive as a result of the costs to build
nonresidential development. The assumption is that if fees price smaller businesses out or
preclude them from entering the city and only larger companies remain with the ability to
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absorb higher costs of living, overall AMI will rise. However, accurately gauging the full impact
of the increase on the city’s business climate and housing market will not be possible until a
few years after it takes effect.52
Resources:
Keyser Marston Associates, “2016 Jobs Housing Nexus Analysis in support of Non-
Residential Affordable Housing Impact Fees for City of Boulder,” September 20, 2016.
https://www-static.bouldercolorado.gov/docs/Boulder_Jobs_Housing_Nexus_Analysis_
Report_9-20-2016-1-201705261142.pdf?_ga=2.85140048.852778678.1582147481-
768681854.1578065155
City of Boulder, “City Council Agenda Item: Discussion and direction regarding potential
revisions to the affordable housing commercial linkage fee,” February 20, 2018. Available at
https://bouldercolorado.gov/plan-develop/development-impact-fees-excise-taxes
City of Boulder City Council, “Study Session Packet: Development-Related Impact Fees
and Excise Taxes,” April 12, 2016. Available at https://bouldercolorado.gov/plan-develop/
development-impact-fees-excise-taxes
e) San Diego, CA: Housing Impact Fee
• Active program: Program is active
• Methodology:
o Cost-Driven Approach (total development costs less revenue from rents,
mortgage payments, other sources (e.g., tax credits);)
o Methodology is reflective of
actual cost to construct units (assuming use of tax credits) and
what households can afford at various income levels producing an
offsetting revenue stream.
• Amount:
o GSF non-residential space multiplied by the applicable fee by type of use
o ($2.12 for office, $1.28 for hotel, $0.80 for R&D, $1.28 for retail).
o Interior remodel fees for the new use less any fees paid (or would have been
paid) based on existing use of building
52 “Upcoming fee hikes on Boulder commercial construction latest headwind facing developers” - https://www.
dailycamera.com/2019/12/21/upcoming-fee-hikes-on-boulder-commercial-construction-latest-headwind-
facing-developers/
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• Use of fee revenues: Workforce housing
• Yearly updates: N/A
The City of San Diego’s Housing Impact Fee was established in 1990 and is a commercial
linkage fee charged to commercial development to help finance affordable housing for low-
income workers whose jobs were created by commercial, industrial, or retail development.
Developers are able to dedicate land or air rights in lieu of the fee if fair market value is equal
or greater than the amount of the fee required.
The Affordable Housing Fund is comprised of revenues from Housing Impact Fees and
funds from the Inclusionary Housing Fund, which are residential development fees and loan
repayments. The fund has an annual plan that addresses how fund revenues are designated,
and the FY2020 plan reports the housing impact fees at $11.4 million (though this amount
does include some loan repayments). The funds are earmarked for rental housing production
and homeless housing initiatives.
Resources:
Keyser Marston Associates, “Jobs Housing Nexus Study for City of San Diego,” August 2013.
https://www.sdhc.org/uploadedFiles/Real_Estate/Best_Practices_Task_Force/SDHC%20
Job%20Housing%20Nexus%20Study%202013(1).pdf
San Diego Municipal Code, Chapter 9, Article 8, Division 6: Housing Impact Fees on
Commercial Development. https://docs.sandiego.gov/municode/MuniCodeChapter09/
Ch09Art08Division06.pdf
San Diego Municipal Code, Chapter 14, Article 2, Division 13: Inclusionary Affordable Housing
Regulations. https://docs.sandiego.gov/municode_supp/750/Chpt%2014%20Art%202%20
Division%2013,%20Pages%201-12.pdf
San Diego Development Services Department, “Information Bulletin 532: Requirements for
Inclusionary Affordable Housing,” July 2019. https://www.sandiego.gov/sites/default/files/
dsdib532_new.pdf
f) East Palo Alto, CA: Affordable Housing Impact Fees
• Active program: Program is active
• Methodology:
o Cost-Driven Approach (total development costs less revenue from rents,
mortgage payments, other sources (e.g., tax credits).
• Amount
o Commercial Linkage Fee: $10.72/sq. ft.
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o Residential Impact Fee for Affordable Housing:
Rental: $23.35 per/sq. ft
Ownership (per sq. ft)
• Single Family Infill: $36.22
• Townhome: $34.78
• Stacked Flat Condo (inside business district): $50.98
o Stack Flat Condo (outside business district): $67.62
• Use of fee revenues: Provision of affordable housing units, supportive services
and costs of administering Affordable Housing Program Ordinance
• Yearly updates
o Residential fee updated yearly for residential projects
Ownership: Based on percentage change in the three-year trailing
Freddie Mac San Francisco-Oakland-Fremont MSA House Price Index
Rental: Fee adjusted annually based on the annual percentage
change in median rents by bedroom count in the City, averaged
across unit sizes, as documented by the City’s rent stabilization
program
o Commercial: N/A
The East Palo Alto Affordable Housing Impact Fee was passed in July 2014. The new
ordinance repealed the City’s Below Market Rate Housing Program and replaced it with
an Affordable Housing Program ordinance that subjects each new market-rate unit in a
residential project to an affordable housing impact fee, adjusted yearly for market fluctuations.
The Below Market Rate Housing Program, adopted in 1994, did not include a fee for
affordable housing and was largely dependent on redevelopment agency funding.
Resources:
City of East Palo Alto, Ordinance No. 397, Chapter 8.5.5, “Affordable Housing Impact Fee for
Nonresidential Development.” http://www.ci.east-palo-alto.ca.us/DocumentCenter/View/4258
City of East Palo Alto, Res. No. 4539, “Affordable Housing Impact Fee for Residential
Development.” http://www.ci.east-palo-alto.ca.us/DocumentCenter/View/4260
City of East Palo Alto, “Current Fee Schedule for Affordable Housing Impact Fees - FY
2018/2019,” http://www.ci.east-palo-alto.ca.us/DocumentCenter/View/4259
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City of East Palo Alto, “Development Impact Fee Program Nexus Study,” February 28, 2019.
Available at http://www.ci.east-palo-alto.ca.us/index.aspx?NID=665
David Paul Rosen and Associates, “City of East Palo Alto Affordable Housing Nexus Study,”
2014. http://www.cityofepa.org/DocumentCenter/View/733
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3. Case Study Comparison Tables
The following summarizes the detailed descriptions of the six affordable housing programs
reviewed above. A summary of Aspen’s current program is first. The other six jurisdictions
follow.
Aspen, CO
Title Affordable Housing Fee-in-Lieu
Ordinance/Legislation Land Use Code Section 26.470.100.A
Latest Supporting Studies
Affordable Housing Fee Methodology City of
Aspen/Pitkin County/APCHA (2012);
background City Council items by staff to
ultimately set the Fee in Lieu
Developments Subject to Regulation All private sector property developments
Exemptions N/A
Methodology Total development costs minus sales and rental
revenue costs per FTE
Fee Amount
Range of $111,000 - $381,000 per full time
employee on average (dependent upon
category of housing)
Fee Collection In coordination with construction of other
development; used for partial impacts
Alternative Options*
Construction of on-site or off-site deed-
restricted housing units, use of Affordable
Housing Credit Program, APCHA approved buy-
down units
Revenue Allocation Affordable housing development
Collections Approximately $10 million between 2010-2018
Updates Every 5 years; last update based on national
ENR Construction Cost Index
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San Francisco, CA
Title Jobs-Housing Linkage Fee (1996); Affordable
Housing Fee (2002)
Ordinance/Legislation
Jobs-Housing Linkage Fee: Article 4, Planning
Code Section 413; Affordable Housing Fee:
Article 4, Planning Code Section 415
Latest Supporting Studies Jobs Housing Nexus Analysis by Keyser Marston
Associates (2019)
Developments Subject to Regulation
Jobs-Housing: Commercial developments over
25,000 Gross Square Feet; Affordable Housing:
All residential projects of 10 or more dwelling
units
Exemptions
Jobs-Housing: Free-standing pharmacies
exceeding 50,000 sq ft; free-standing general
grocery exceeding 75,000 square ft; any mixed-
use space consisting of residential and pharmacy
space that exceeds 50,000 square ft.
Methodology
Both Fees: Cost Driven Approach (Affordability
Gap (Total Development Costs less Revenues)):
Fee is reflective of actual cost to construct units
less revenue from the sale or rental of the unit.
Affordable Housing Fee recently changed from a
"per unit" fee to a "per square foot" fee
Fee Amount
Jobs-Housing: $57.14 per SF for projects
approved before September 10, 2019 and
$63.37 per SF for projects submitted between
then and January 1, 2022. Affordable Housing:
$210.47 per square foot of Gross Floor Area of
residential use
Fee Collection Prior to issuance of a building or site permit
Alternative Options*Construction First: In-lieu fee or land
contribution equivalent to in-lieu fee
Revenue Allocation Affordable housing development, preservation
and permanent supportive housing
Collections Yearly average of $7.5 million fees
Updates
Actual construction costs for past 3 years on a
rolling basis done by Mayor's Office of Housing
and Community Development.
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Boston, MA
Title Development Impact Exaction Policy (1987)
Ordinance/Legislation Zoning Code Section 80 B-7
Latest Supporting Studies Linkage Nexus Study by Karl F. Seidman
Consulting Services (2016)
Developments Subject to Regulation
Any project requiring zoning changes and
proposing to include one or more commercial
uses occupying more than 100,000 gross square
feet
Exemptions N/A
Methodology
Cost Driven Approach (Affordability Gap (Total
Development Costs less Revenues)): Fee is
reflective of actual cost to construct units less
revenue from the sale or rental of the unit
Fee Amount $10.81 per square foot of gross square area
total - $9.02 for housing & $1.78 for jobs
Fee Collection
Seven annual installments, first due upon the
issuance of a certificate of occupancy or 24
months after the issuance of a building permit,
whichever comes first
Alternative Options*
Fee First: Creation of housing units in
compliance with Housing Creation Option,
creation of a job training program in compliace
with Jobs Creation Option
Revenue Allocation Affordable housing development & job creation
Collections Generated $31 million from 2014-2018, creation
of 2,181 new affordable units from FY06-FY15
Updates Not annual or automatic, may occur every 3
years to reflect rise in inflation
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Seattle, WA
Title Mandatory Housing Affordability-Commercial
(MHA) Program (2015)
Ordinance/Legislation Land Use Code Chapter 23.58B
Latest Supporting Studies Seattle Affordable Housing Nexus Study by
David Paul Rosen & Associates (2015)
Developments Subject to Regulation
All new commercial development that the City
Council approves for a rezone to increase
maximum height or floor area ratio; any
development establishing a different zoning
designation
Exemptions
Structures containing commercial uses that also
contain floor area in residential use that is
publicly funded or has received allocation of
federal low-income housing tax credits
Methodology
Cost Driven Approach (Affordability Gap (Total
Development Costs less Revenues)): Fee is
reflective of actual cost to construct units less
revenue from the sale or rental of the unit
Fee Amount Range between $6-$36 dependent upon
location and scaling
Fee Collection At time of Master Use Permit application and
first building permit application
Alternative Options*Fee First: Inclusion of rent-restricted units in
proposed development
Revenue Allocation Affordable housing development
Collections Not yet calculated for current iteration of
program, recently advanced in 2019
Updates Annually, CPI adjustment method
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Boulder, CO
Title Affordable Housing Commercial Linkage Fee
(2016)
Ordinance/Legislation Boulder Municipal Code, §4-20-62. Capital
Facility Impact Fee.
Latest Supporting Studies
Final Affordable Housing Nexus Analysis by
Keyser Marston Associates (2016), Capital
Facility Development Impact Fee Study by
TischlerBise (2009)
Developments Subject to Regulation Any project with a non-residential component
Exemptions
Public or civic use with mission that will
predominately and directly serve Boulder
County residents
Methodology
Cost Driven Approach (Affordability Gap (Total
Development Costs less Revenues)): Fee is
reflective of actual cost to construct units less
revenue from the sale or rental of the unit; and
tax credits where applicable
Fee Amount
Varies by type of nonresidential development;
fee amounts are slated to increase to $10/sq. ft.
(warehouse), $20/sq. ft. (retail), and $30/sq. ft.
(office) by the year 2021
Fee Collection Upon submission of building permit application
Alternative Options*Construction First: In-lieu fee
Revenue Allocation Affordable housing development
Collections $6.9 million for affordable housing since
inception, including $1.6 million in 2019
Updates Unclear, most recent update in 2018; policy
driven
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San Diego, CA
Title Housing Impact Fee (1990)
Ordinance/Legislation Municipal Code Section 98.0610
Latest Supporting Studies Jobs Housing Nexus Study by Keyser Marston
Associates (2013)
Developments Subject to Regulation Nonresidential development projects proposing
construction, addition or interior remodeling
Exemptions
Projects which are the subject of development
agreements currently in effect with the city,
single room occupancy development, portion of
any development project located on state
owned property, non-residential uses in
Southeast/Barrio Logan Enterprise Zone
Methodology
Cost Driven Approach (Affordability Gap (Total
Development Costs less Revenues)): Fee is
reflective of actual cost to construct units less
revenue from the sale or rental of the unit; and
tax credits where applicable
Fee Amount
Gross square footage of non-residential space x
applicable fee by type of use ($2.12 for office,
$1.28 for hotel, 0.80 for R&D, $1.28 for retail)
Fee Collection At time of building permit issuance
Alternative Options*Construction First: Land or air rights in lieu of
fee
Revenue Allocation Affordable housing development
Collections $11.4 million in 2019
Updates Unknown
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East Palo Alto, CA
Title Affordable Housing Impact Fee (2014)
Ordinance/Legislation Municipal Code Chapter 18.38 (Residential),
Chapter 18.40 (Nonresidential)
Latest Supporting Studies Development Impact Fee Program Nexus Study
by David Monniaux (2018)
Developments Subject to Regulation
All nonresidential development projects and
new market rate "for sale" and "rental
development
Exemptions N/A
Methodology
Cost Driven Approach (Affordability Gap (Total
Development Costs less Revenues)): Fee is
reflective of actual cost to construct units less
revenue from the sale or rental of the unit; and
tax credits where applicable
Fee Amount $10.72 per square foot for commercial; a range
of $23-$68 for residential, dependent upon type
Fee Collection Due at issuance of first permit
Alternative Options*Fee First: Commercial - construction of on-site
units or provision of affordable off-site units
Revenue Allocation Affordable housing development
Collections Unknown
Updates
Residential fee is updated annnually - ownership
developments based on percentage change in
the 3-year trailing Freddie Mac San Francisco-
Oakland-Fremont MSA House Price Index; rental
developments based on annual percentage.
Commercial updates unknown.
*Construction First: Policies that include the option to pay; Fee First: policies with an option to build units
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aPPEndIx c: conStructIon coSt dEtaIl
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APPENDIX C: CONSTRUCTION COST DETAIL
This section includes a series of figures that provide detail from the 2015 FIL assumptions
followed by updated cost information for 2020. Also included at the bottom of each figure is
projected revenues by category for each project followed by an estimated City subsidy per
FTE.
City of Aspen Affordable Housing Project Costs Detail [Original Estimates (“Model 2”) from October 12, 2015, City Council Meeting]
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City of Aspen Affordable Housing Project Costs Detail [Original Estimates (“Model 2”) from October 12, 2015, City Council Meeting, Modified to 62.5% Density by TischlerBise]
City of Aspen Affordable Housing Total Development Costs Detail (2020)
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aPPEndIx d: land acquISItIon coStS dEtaIl
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APPENDIX D: LAND ACQUISITION COSTS DETAIL
A sample of land acquisition costs is provided, as referenced in the body of this report.
Sources are as indicated.
City Land Purchases for Affordable Housing (2008)
City acquisitions (~2008)
802 West Main 517 Park Circle 488 Castle Creek TOTAL
Land Acres 0.21 0.33 0.82 1.37
Land Sq. Ft. 9,148 14,458 35,895 59500.60
Original Cost $3,690,000 $4,105,000 $5,400,000 $13,195,000
$/Acre $17,571,429 $12,367,810 $6,553,113 $9,659,973
$/Sq. Ft. $403 $284 $150 $222
Source: City of Aspen
Other Land Purchases for Affordable Housing (2018-2019)
Acquisitions for Affordable Housing Projects (~2018-19)
404 Park 834 W. Hallam 611 W. Main 210 W. Main TOTAL
Parcel Size 15,000 6,600 9,000 6,000 36,600
Parcel Acre 0.34 0.15 0.21 0.14 0.84
Land Value $4,500,000 $1,813,000 $2,025,000 $2,350,000 $10,688,000
$/Acre $13,068,000 $11,965,800 $9,801,000 $17,061,000 $12,720,472
$/Sq. Ft. $300 $275 $225 $392 $292
Source: City of Aspen
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City of Aspen Vacant Land Sales from Pitkin County Assessor
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aPPEndIx E: dEvEloPmEnt coSt WorkShEEt
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APPENDIX E: DEVELOPMENT COST WORKSHEET
The following worksheet was developed by TischlerBise to aid in data collection with private
and public affordable housing developers. No entity used this sheet to provide information to
the consultant team. However, it is provided here for potential future use.
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End of Report.
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PHASE II:
Affordable Housing Fee in Lieu (FIL) Study
Prepared for:
City of Aspen, Colorado
April 14, 2021
4701 Sangamore Road
Suite S240
Bethesda, Maryland 20816
800.424.4318
www.tischlerbise.com
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AFFORDABLE HOUSING FEE IN LIEU STUDY City
of Aspen, Colorado
i
Affordable Housing
Fee in Lieu Study
City of Aspen, Colorado
CONTENTS
EXECUTIVE SUMMARY ........................................................................................................... 2
Introduction ................................................................................................................... 2
Overview of a Fee in Lieu ................................................................................................ 3
Summary of Fee in Lieu (FIL) Calculation .......................................................................... 4
OVERVIEW OF FEES-IN-LIEU .................................................................................................... 5
Current City of Aspen Fee-in-Lieu Program ...................................................................... 5
Key Considerations for the FIL Update ............................................................................. 6
ASPEN FEE-IN-LIEU METHODOLOGY ....................................................................................... 8
AFFORDABLE HOUSING FIL COMPONENTS AND COSTS ............................................................ 9
Land Acquisition Costs .................................................................................................... 9
Soft Costs and Construction Costs ................................................................................. 10
Revenue Analysis .......................................................................................................... 11
Occupancy Standards .................................................................................................... 14
AFFORDABLE HOUSING INPUT FACTORS AND FIL .................................................................. 15
Comparison to Current Impact Fees............................................................................... 17
IMPLEMENTATION ............................................................................................................... 18
Annual Updates ............................................................................................................ 18
Calculating FIL Payment .................................................................................................18
APPENDIX ............................................................................................................................ 19
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2
4701 Sangamore Road | Suite S240 | Bethesda, MD 20816
301.320.6900
www.tischlerbise.com
EXECUTIVE SUMMARY
Introduction
The City of Aspen retained TischlerBise, in partnership with White & Smith Planning and Law Group, to
calculate an updated Affordable Housing Fee-in-Lieu (FIL). The updated calculation reflects Phase II of a
two-phase effort, where Phase I was an evaluation of policy-based and methodological aspects of the
City’s current program intended to serve as a guide for the Phase II FIL update. Phase I findings are
provided in the report, Fee-in-Lieu Assessment and Recommendations Report, prepared by White & Smith
and TischlerBise for the City of Aspen in March 2020.1
This report herein reflects findings from the Phase II effort to update the FIL with a cost-driven approach;
delineate land, soft costs, and construction costs separately per square foot; and update and project
revenue streams from sales and rental income from affordable units. Combined, these components are
used to determine an updated FIL schedule.
Key features of the Phase II analysis are:
•A cost-driven approach to the FIL calculations is used to capture the full costs of construction. The
update includes costs based on recent and representative housing projects and the City’s share
of those costs to develop the units.
•Land acquisition, soft costs, and construction costs are analyzed separately.
•Costs are determined on a per square foot of net livable area basis, which simplifies the initial
calculation as well as the annual adjustments. The cost per square foot is converted to a cost per
full-time equivalent (FTE) employee using applicable factors to determine the FIL.
•Average estimated revenues are projected from sales and rentals of affordable units and applied
as offsets in the FIL calculation.
1 White & Smith and TischlerBise, Fee-in-Lieu Assessment and Recommendations Report, City Council Review Draft,
prepared for City of Aspen, March 13, 2020.
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3
For annual updates to the FIL schedule, it is recommended that the City of Aspen use the Engineering
News Record (ENR) Construction Cost Index (CCI). Specifically, TischlerBise recommends that the City:
•Use the National ENR CCI, rather than a city-specific CCI, which is more susceptible to price
fluctuations due to localized labor markets, weather, and other trends; and
•Adjust costs on an annual basis consistently.
•Update the Fee-in-Lieu Study no later than every five years to account for changes in economic
and other conditions in the City.
Overview of a Fee in Lieu
The City of Aspen FIL is used to mitigate affordable housing impacts generated from development.
Residential and nonresidential development in the City of Aspen is required to mitigate impacts on the
need for affordable housing, under the Growth Management Quota System (GMQS) chapter of the City
of Aspen Land Use Code, in one of several ways, including pursuant to a fixed, FIL schedule. Impacts are
determined by a formula articulated in Chapter 26.470 of the City of Aspen Land Use Code, which sets out
employee generation rates (full time equivalent employees (FTE) per one thousand (1,000) square feet of
new net developed space) and mitigation requirements. Applying this formula generates the number of
FTEs required to be mitigated from development.
The City has decided as a matter of policy to limit FILs to a share of new development’s impact on the
need for additional employee housing, not in excess of its proportionate impact. There are three key
elements the City evaluates to meet this objective: impact, proportionality, and benefit.
•Demonstrate an Impact: New development creates additional demands on some, or all,
public/capital facilities, including housing. If supply is not increased to satisfy that additional
demand, the availability of public facilities and affordable housing for the entire community
deteriorates. The City of Aspen has determined that new residential and nonresidential
development creates additional demand for housing that is affordable to the new employees
that new development brings.
•Demonstrate Proportionality: The U.S. Supreme Court set out a proportionality standard in
the Nollan and Dolan cases, decided in 1987 and 1994, respectively. Although these judicial
standards may not apply to legislatively-adopted, generally-applicable regulatory fees, this
report establishes proportionality through the procedures used to identify development-
related demand for additional affordable housing.
•Demonstrate Benefit: Conversely, the City maintains and will continue to maintain
segregated accounts earmarking FIL revenues, solely for purposes of offsetting the impact to
the City’s affordable housing stock that new development generates. In addition, the City
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4
ensures by ordinance it will expend FIL revenues received in a timely manner to sufficiently
benefit development that mitigates its housing impacts through payment of the FIL.
This Phase II report addresses the above principles.
Summary of Fee in Lieu (FIL) Calculation
The FIL calculated here represents the cost per FTE to the City to provide affordable housing in the City of
Aspen. Figure 1 provides the summary schedule of FIL per FTE.
Figure 1. Summary of Affordable Housing Fee-in-Lieu
PROPOSED Fee in Lieu by Category Fee in Lieu per FTE
Category 1 $408,054
Category 2 $376,475
Category 3 $345,691
Category 4 $302,879
Category 5 $250,375
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5
OVERVIEW OF FEES-IN-LIEU
Fees-in-lieu are used to mitigate affordable housing impacts from new development. Residential and
nonresidential development in the City of Aspen is required to mitigate impacts on the need for affordable
housing, under the City’s Growth Management Quota system, in one of several ways, including pursuant
to a fixed, FIL schedule. Impacts are determined by a formula articulated in Chapter 26.470 of the City of
Aspen Land Use Code, which sets out employee generation rates (full time equivalent employees (FTE)
per one thousand (1,000) square feet of new net developed space) and mitigation requirements. Applying
this formula generates the number of FTEs required to be mitigated from development.
Several mitigation options are allowed by the City’s Growth Management Quota System (GMQS),
including payment of an Affordable Housing Fee-in-Lieu (FIL).2 The City of Aspen’s FIL has been in place
since the mid-1980s. To date, payment of FIL is most frequently used by developers mitigating less than
0.1 of an FTE, likely due to the fact that fee-in-lieu is accepted in this situation by-right, while
developments creating 0.1 FTE or more may elect to mitigate using fee-in-lieu only by special request to
the City Council (see § 26.470.110, Land Use Code).3
Current City of Aspen Fee-in-Lieu Program
The City’s current Fee-in-Lieu program is described thoroughly in the Phase I report, Fee-in-Lieu
Assessment and Recommendations Report.
The current methodology and assumptions on which the fee is calculated was a cost-driven approach and
is summarized in the Growth Management Quota System (GMQS) chapter of the City of Aspen Land Use
Code. The current FIL schedule was adopted in 2015 and an update was done in 2018 that adjusted the
FIL schedule for inflation using the Engineering News Record (ENR).
The amount of the FIL varies by Aspen Pitkin County Housing Authority (APCHA) housing unit categories,
which are established according to household income levels. Current (2020) income target limits are
shown below in Figure 2. Free-market residential development is expected to mitigate with Category 2
units (or lower) and commercial development is expected to mitigate with Category 4 units. Category
designation determines the price at which a unit sells or rents. (See Revenue Analysis section for further
detail.)
2 See City of Aspen Land Use Code § 26.470.090 for discussion of mitigation options.
3 For further detail on these aspects of the program, see White & Smith and TischlerBise, Fee-in-Lieu Assessment and
Recommendations Report, City Council Review Draft, prepared for City of Aspen, March 13, 2020. .
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6
Figure 2. APCHA Household Income Target Levels per Housing Category
Key Considerations for the FIL Update
Three key considerations are important to highlight in the FIL update:
1.Because the intent is for the City to use FIL revenues to build affordable housing, the full costs
captured in the FIL reflect the estimated costs to the City to deliver affordable housing.
2.The full calculation of the FIL accounts for factors other than costs; for example, revenues that
will offset some costs. Both costs and revenues are addressed herein.
3.Third, methodologies used to calculate fees-in-lieu generally follow those used for impact fees or
other one-time regulatory fees with the cost to build the facility or housing units as the principal
component, though not the sole component, of the methodology. However, methodologies for
calculating affordable housing fees-in-lieu vary somewhat, according to the specific circumstances
of a given community.
The City has decided as a matter of policy to limit FILs to a share of new development’s impact on the
need for additional employee housing, not in excess of its proportionate impact. There are three key
elements the City evaluates to meet this objective: impact, proportionality, and benefit.
•Demonstrate an Impact: New development creates additional demands on some, or all,
public/capital facilities, including housing. If supply is not increased to satisfy that additional
demand, the availability of public facilities and affordable housing for the entire community
deteriorates. The City of Aspen has determined that new residential and nonresidential
development creates additional demand for housing that is affordable to the new employees
that new development brings.
•Demonstrate Proportionality: The U.S. Supreme Court set out a proportionality standard in
the Nollan and Dolan cases, decided in 1987 and 1994, respectively. Although these judicial
standards may not apply to legislatively-adopted, generally-applicable regulatory fees, this
APCHA Housing Target Household Income Level AMI Percentage Range
Category 1 Low-Income Below 50% AMI
Category 2 Lower Moderate Income 50.1 - 85% AMI
Category 3 Upper Moderate Income 85.1 - 130% AMI
Category 4 Middle Income 130.1 - 205% AMI
Category 5 and RO Upper Middle Income 205.1 - 240% AMI
AMI = Area Median Income (for Pitkin County)
Source: APCHA Employee Housing Regulations, May 2020
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AFFORDABLE HOUSING FEE IN LIEU STUDY
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7
report establishes proportionality through the procedures used to identify development-
related demand for additional affordable housing.
•Demonstrate Benefit: Conversely, the City maintains and will continue to maintain
segregated accounts earmarking FIL revenues, solely for purposes of offsetting the impact the
City’s affordable housing stock that new development generates. In addition, the City ensures
by ordinance it will expend FIL revenues received in a timely manner in order to sufficiently
benefit development that mitigates its housing impacts through payment of the FILs.
In any case, most generally-accepted methodologies in today’s practice use the principles above to guide
calculation of housing impact fees or fees-in-lieu, regardless of applicable legal standards to legislative,
regulatory fees.
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8
ASPEN FEE-IN-LIEU METHODOLOGY
The City of Aspen Affordable Housing FIL calculation uses a cost-driven methodology. Components of the
FIL include land acquisition costs, soft costs and fees, and construction costs.
Figure 3 diagrams the general methodology used to calculate the FIL. It is intended to read like an outline,
with lower levels providing a more detailed breakdown of the FIL components. The FIL is derived from the
product of the cost per square foot to build affordable housing multiplied by the amount of square feet
per FTE less projected future revenues generated from rent and sales of affordable units.
Figure 3. Affordable Housing FIL Methodology Chart
AFFORDABLE
HOUSING FEE-IN-
LIEU PER FTE
Cost per Square Foot
to Deliver Affordable
Housing
Land Cost per Sq. Ft.
Plus Soft Cost per Sq.
Ft.
Plus Construction
Cost per Sq. Ft.
Multiplied by Square
Feet of Affordable
Housing per FTE
Less Revenue
per FTE
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9
AFFORDABLE HOUSING FIL COMPONENTS AND COSTS
The City of Aspen Affordable Housing FIL reflects the cost to the City of Aspen to deliver the affordable
housing needed to offset new development’s impacts. The components include land acquisition, soft costs
(pre-development activities such as architecture and engineering; professional services; entitlement fees,
building permit fees, and other fees; and all other non-construction related costs), and construction costs.
Land Acquisition Costs
TischlerBise obtained data from the City on land purchases made by both the City and private sector for
recent affordable housing projects that reflect similar costs the City is expected to incur on future projects.
These purchases reflect a range of types, sizes, and locations of sites typical for future affordable housing
projects. The sites below in Figure 4 are used to derive an average cost per square foot used in the FIL
calculation.
Figure 4. Land Acquisition Costs for Affordable Housing Projects
As shown, the average cost per square foot for land appropriate for affordable housing is $417. The cost
factor is derived per net livable square foot using actual project data (and estimated for the future
Lumberyard project (number 7 above) as plans are currently being developed). This cost factor will be
applied to net livable square feet of affordable housing per FTE to derive the FIL. Further detail on land
costs is provided in the Appendix.
Property
No.
Year
Purchased Purchaser Sale Price Acres Gross Sq. Ft.Net Livable
Sq. Ft.$/Net Sq. Ft.
1 2020 Private $2,683,000 0.10 4,379 4,966 $540
2 2019 Private $3,125,000 0.15 6,600 6,499 $481
3 2019 Private $3,200,000 0.21 9,000 7,508 $426
4 2007 City $3,700,000 0.21 9,148 6,800 $544
5 2007 City $4,121,547 0.33 14,375 7,950 $518
6 2007 City $5,371,923 0.82 35,719 17,300 $311
7 2007, 2020 City $29,500,000 10.50 457,380 294,578 $100
AVERAGE (rounded)$417
* Net square footage and FTEs are estimated based on average of the other properties in this data set (64 percent Floor Area Ratio (FAR)).
Source: City of Aspen
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10
Soft Costs and Construction Costs
The next two components in the FIL equation are soft costs and construction costs. Soft costs include such
items as: architectural and engineering services, plans, and studies; building permit fees; utility connection
fees; and any other non-construction related expenses that must be incurred to develop or deliver
affordable housing. Construction costs include all labor and materials for site development and vertical
construction.
The affordable housing projects used to determine estimated costs include a mix of projects developed
by the City, private development, and public-private partnerships, which reflect the costs the City would
incur to deliver the affordable housing needed to meet new development’s demand.
The affordable housing projects used in the analysis are as follows:
•Burlingame Phase 3: City constructed owner-occupied units. Project is 84,160 net livable
square feet that includes 79 units, housing 193 FTEs, and anticipated to be completed 2021-
22.
•802 West Main Street: Developed by Aspen Housing Partners, a public-private partnership,
the project includes 10 rental units, 6,800 net livable square feet housing 17.5 FTEs, and is
complete.
•517 Park Circle: Developed by Aspen Housing Partners, a public-private partnership, the
project includes 11 rental units, 7,950 net livable square feet housing 21.25 FTEs, and is
complete.
•488 Castle Creek: Developed by Aspen Housing Partners, a public-private partnership, the
project includes 24 rental units, 17,300 net livable square feet housing 47 FTEs, and is
complete.
•210 West Main: Developed by a private developer, the project includes 8 rental units, 7,200
net livable square feet housing 18 FTEs, and is complete.
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Figure 5. Soft Costs and Construction Costs for Affordable Housing Projects
As shown, average costs for the above recent projects are $187 and $501 per net livable square foot for
soft costs and construction costs, respectively, resulting a combined total of $688 per square foot.
Revenue Analysis
The sale and rental of affordable units will generate revenues that offset the costs of delivering affordable
housing. The FIL is reduced by this revenue stream to account for potential double payment from a FIL as
well as collection of rental income and/or sale proceeds that are available to pay for development of
housing units. The City anticipates that future affordable housing units will be available both for sale and
for rent. To accommodate the potential future mix of rental and for sale units, TischlerBise recommends
projecting revenue by unit category averaging for sale and for rent units. Revenue from the sale of an
affordable housing unit is a one-time revenue source and can readily be reflected as a one-time offset.
Revenues from rental units require additional assumptions regarding the amount of rental revenue that
is available to pay for construction over a specified period of time.
The first step in the revenue calculation is to document allowable sale prices and rental rates. Maximum
sale prices and rental rates are set by the Aspen Pitkin County Housing Authority (APCHA) by category and
size of unit. Current (2020) APCHA maximum sales and rental rates for deed-restricted units are shown in
Figure 6. These figures reflect base year gross amounts.
Project Source Developer Soft Costs
and Fees*^
Construction
Costs^TOTAL COSTS Net Livable
Sq. Ft.$/Net Sq. Ft. $/Net Sq. Ft. $/Net Sq. Ft.
Burlingame 2B (Phase 3)[1]City $9,993,753 $51,842,596 $61,836,349 84,160 $119 $616 $735
802 West Main [1]PPP $1,676,394 $3,441,020 $5,117,414 6,800 $247 $506 $753
517 Park Circle [1]PPP $1,779,759 $3,465,847 $5,245,606 7,950 $224 $436 $660
488 Castle Creek [1]PPP $3,646,333 $8,204,250 $11,850,584 17,300 $211 $474 $685
210 West Main [2]Private $961,982 $3,416,151 $4,378,133 7,200 $134 $474 $608
AVERAGE (rounded)$187 $501 $688
PPP = Public-Private Partnership
* Includes such items as: architectural and engineering services, plans, and studies; building permit fees; utility connection fees; and any other construction-related expenses.
^ In current (2021) dollars.
[1] Source: City of Aspen
[2] Source: King Louise LLC
Soft Costs
and Fees
Construction
Costs Total Costs
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12
Figure 6. Maximum Sale Prices and Monthly Rental Rates for Deed-Restricted Housing Units by Category and Size
per APCHA
The second step in the revenue calculation is to adjust both sales and rental revenue streams to reflect
the amount of funding available to offset costs to deliver affordable housing. Therefore, the following
adjustments are necessary.
•Maximum sale prices are reduced by two percent to reflect APCHA commission. (In other
words, 98 percent of the maximum sale price is assumed to be available to offset the cost to
deliver affordable housing units.)
•Rental revenue is adjusted as follows:
o Maximum rents are assumed to increase annually by two percent per APCHA over a
15-year period.
o Fifty percent of rental income is reserved for ongoing non-construction related
expenses such as operating and maintenance, utilities, taxes and insurance, reserves,
administration, and management, and therefore is not available to offset
construction costs.
Adjusted revenues are shown below in Figure 7.
MAXIMUM SALES PRICES FOR NEWLY DEED-RESTRICTED OWNERSHIP UNITS (BY CATEGORY AND SIZE OF UNIT)
Category 1 Category 2 Category 3 Category 4 Category 5
Studio $44,000 $100,000 $168,000 $278,000 $394,000
1 Bedroom $56,000 $121,000 $183,000 $297,000 $427,000
2 Bedroom $67,000 $148,000 $217,000 $330,000 $464,000
3 Bedroom $78,000 $182,000 $253,000 $365,000 $494,000
MAXIMUM MONTHLY RENTAL RATES FOR DEED-RESTRICTED RENTAL UNITS (BY CATEGORY AND SIZE OF UNIT)
Category 1 Category 2 Category 3 Category 4 Category RO
Studio $531 $947 $1,415 $1,878 $2,575
1 Bedroom $658 $1,112 $1,576 $2,060 $2,754
2 Bedroom $780 $1,278 $1,742 $2,227 $2,920
3 Bedroom $904 $1,429 $1,913 $2,393 $3,089
Source: APCHA Employee Housing Regulations, May 2020
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Figure 7. Estimated Revenue from For Sale and For Rent Units
As noted above, a mix of unit types (for sale and for rent) in a range of categories and sizes is anticipated
to be provided in the future. To determine potential revenue generated by unit category to apply to the
FIL calculation, averages of sale and rental income per FTE per unit category is averaged. Figure 8
summarizes average revenues per category per FTE from:
•For sale units at the top,
•Rental units in the middle, and
•Combined averages at the bottom.
For example, for a Category 1 unit, estimated sales revenue of $30,130 per FTE and projected rental
income of $37,763 per FTE is averaged to project $33,946 per FTE in revenue for a Category 1 unit.
Figure 8. Estimated Average Revenues by Unit Category
FOR SALE UNITS SALES REVENUES BY CATEGORY AND SIZE OF UNIT (2020 APCHA Regulations)
Sales Price*Per FTE Sales Price*Per FTE Sales Price*Per FTE Sales Price*Per FTE Sales Price*Per FTE
Studio/0 Bedroom 1.25 $43,120 $34,496 $98,000 $78,400 $164,640 $131,712 $272,440 $217,952 $386,120 $308,896
1 Bedroom 1.75 $54,880 $31,360 $118,580 $67,760 $179,340 $102,480 $291,060 $166,320 $418,460 $239,120
2 Bedroom 2.25 $65,660 $29,182 $145,040 $64,462 $212,660 $94,516 $323,400 $143,733 $454,720 $202,098
3 Bedroom 3.00 $76,440 $25,480 $178,360 $59,453 $247,940 $82,647 $357,700 $119,233 $484,120 $161,373
AVERAGE $60,025 $30,130 $134,995 $67,519 $201,145 $102,839 $311,150 $161,810 $435,855 $227,872
* Sale price reduced by 2% to account for APCHA Commission
FOR RENT UNITS RENTAL REVENUE BY CATEGORY AND SIZE OF UNIT AFTER NON-CONSTRUCTION EXPENSES (2020 APCHA Regulations)
Rental Income^Per FTE Rental Income^Per FTE Rental Income^Per FTE Rental Income^Per FTE Rental Income^Per FTE
Studio 1.25 $55,362 $44,290 $98,735 $78,988 $147,529 $118,023 $195,801 $156,641 $268,471 $214,777
1 Bedroom 1.75 $68,603 $39,202 $115,938 $66,250 $164,315 $93,894 $214,777 $122,730 $287,133 $164,076
2 Bedroom 2.25 $81,323 $36,144 $133,245 $59,220 $181,622 $80,721 $232,188 $103,195 $304,441 $135,307
3 Bedroom 3.00 $94,251 $31,417 $148,988 $49,663 $199,450 $66,483 $249,495 $83,165 $322,061 $107,354
AVERAGE $74,885 $37,763 $124,226 $63,530 $173,229 $89,780 $223,065 $116,433 $295,526 $155,378
^ Rental income reflects a 15-year total, increased annually by 2%, and reduced by 50% to reflect non-construction related expenses.
Sources: APCHA Employee Housing Regulations, May 2020; City of Aspen; TischlerBise calculations.
FTEs per
Unit
FTEs per
Unit
Category 1 Category 2 Category 3 Category 4 Category 5
Category 1 Category 2 Category 3 Category 4 Category 5
FOR SALE UNITS
Per FTE Per FTE Per FTE Per FTE Per FTE
AVERAGE $30,130 $67,519 $102,839 $161,810 $227,872
FOR RENT UNITS
Per FTE Per FTE Per FTE Per FTE Per FTE
AVERAGE $37,763 $63,530 $89,780 $116,433 $155,378
COMBINED FOR SALE AND FOR RENT UNITS
Avg. Per FTE Avg. Per FTE Avg. Per FTE Avg. Per FTE Avg. Per FTE
AVERAGE (rounded)$33,946 $65,525 $96,309 $139,121 $191,625
Category 1 Category 2 Category 3 Category 4 Category 5
Category 1 Category 2 Category 3 Category 4 Category 5
Category 1 Category 2 Category 3 Category 4 Category 5
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Average revenue per FTE (from combined for sale and for rent units) as shown above is subtracted from
the total cost per FTE of delivering affordable housing to determine the cost per FTE, which is the resulting
Fee in Lieu amount.
Occupancy Standards
Another key component in the FIL calculation is the demand factor—i.e., the amount of square feet per
FTE generated by new development required to be mitigated. Per the City of Aspen Land Use Code, the
standard of 400 square feet per FTE is used to convert square footages to number of FTEs housed. Further
the standard of 400 square feet per FTE is used to derive the FIL per FTE.
Figure 9. Affordable Housing Minimum Square Feet per Unit Type and Occupancy Standards
Unit Type/Size Minimum Sq. Ft.
Occupancy Standard* (Number of
FTEs Housed/Mitigated)
Studio 500 1.25
1 Bedroom 700 1.75
2 Bedroom 900 2.25
3 Bedroom 1200 3.00
4 or more bedrooms 0.5 per bedroom
* 400 square feet per employee per City of Aspen Land Use Code §26.470.050(F)
FTE = Full-time Equivalent employees
Source: City of Aspen Land Use Code, §26.470.050(D)(Table 4) and §26.470.050(F)
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AFFORDABLE HOUSING INPUT FACTORS AND FIL
Components used to calculate the Affordable Housing Fee-in-Lieu are shown in the boxed area at the top
of Figure 10. The FIL calculation is the sum of the cost components per square foot multiplied by the
demand factor of 400 square feet per FTE (as cited above).
The middle portion of Figure 10 shows the total cost per FTE to provide affordable housing. This figure is
calculated by multiplying the total cost per square foot by the square feet per FTE to derive the cost per
FTE by unit category ($1,105 per square foot x 400 square feet per FTE = $442,000 per FTE). As shown, the
cost per FTE is the same per unit category.4
To determine the FIL per unit category, revenues per category are subtracted from the total cost as
described above. This provides the net cost per FTE, the resulting FIL.
For example, for a Category 1 unit:
Total cost per FTE: $442,000
Minus revenue per FTE: -$33,946
Net Cost or FIL: $408,054
This is repeated for each unit category.
4 For further detail, a 1 bedroom unit, mitigating 1.75 FTEs, is estimated at a cost of $773,500 to deliver.
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16
Figure 10. Affordable Housing Fee in Lieu
Cost Component Inputs per Sq. Ft.
Land Cost per Sq. Ft $417
Soft Cost per Sq. Ft.$187
Construction Cost per Sq. Ft.$501
Total Cost per Sq. Ft.$1,105
Sq. Ft. per FTE 400
Cost by Category Total Cost per
Category per FTE
Category 1 $442,000
Category 2 $442,000
Category 3 $442,000
Category 4 $442,000
Category 5 $442,000
Average Revenues by Category Revenue per FTE
Category 1 $33,946
Category 2 $65,525
Category 3 $96,309
Category 4 $139,121
Category 5 $191,625
PROPOSED Fee in Lieu by Category Fee in Lieu per FTE
Category 1 $408,054
Category 2 $376,475
Category 3 $345,691
Category 4 $302,879
Category 5 $250,375
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Comparison to Current Impact Fees
The updated proposed FIL result in an increase in amounts across all categories. Figure 11 shows the
difference for each unit category when compared to the current FIL schedule.
Figure 11. Comparison of Proposed and Current Fee-in-Lieu Schedules
PROPOSED Fee in Lieu by Category Fee in Lieu per FTE
Category 1 $408,054
Category 2 $376,475
Category 3 $345,691
Category 4 $302,879
Category 5 $250,375
CURRENT Fee in Lieu by Category^Fee in Lieu per FTE
Category 1 $381,383
Category 2 $342,599
Category 3 $306,550
Category 4 $238,687
Category 5 $168,290
Category 6*$142,114
Category 7*$111,438
^ City of Aspen Land Use Code, Chapter 26.470
* Categories 6 and 7 are no longer used.
Category 1 $26,671
Category 2 $33,876
Category 3 $39,141
Category 4 $64,192
Category 5 $82,085
DIFFERENCE between Proposed and Current FIL per FTE
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IMPLEMENTATION
Annual Updates
TischlerBise recommends that the City of Aspen annually update the FIL schedule using the Engineering
News Record (ENR) Construction Cost Index (CCI).5 This is a reasonable and less burdensome way of
capturing annual cost changes than tracking individual development project data. Further, it is
recommended that the National ENR CCI is used, not the city-specific CCI, which is more susceptible to
price fluctuations due to localized labor markets, weather, and other trends; and that the City makes the
annual adjustment consistently each year.
A full update to the Fee-in-Lieu Study is recommended to be done every three to five years to account for
changes in economic and other conditions in a community. This is standard practice for impact fees and
other one-time, regulatory fee studies.
5 ENR provides two main cost indices: Construction Cost Index (CCI) and the Building Cost Index (BCI). Labor
assumptions vary between the two indices: CCI includes 200 hours of common labor at the 20-city average of
common labor rates; BCI includes 68.38 hours of skilled labor at the 20-city average rates of bricklayers, carpenters,
and structural ironworkers. Building materials are the same in both indices.
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APPENDIX
Further supporting detail on cost and revenue components is provided in this section.
Figure 12. Detail on Land Acquisition Costs for Affordable Housing Projects
Figure 13. Detail on Soft Costs and Construction Costs for Affordable Housing Projects
Figure 14. Detail on Revenue by Category and Type of Unit
Property
No.
Year
Purchased Purchaser Sale Price Acres Gross Sq. Ft.Net Livable
Sq. Ft.
Housing
Units FTEs $/Net Sq. Ft.$/FTE Gross
Sq.Ft./FTE
Net
Sq.Ft./FTE
1 2020 Private $2,683,000 0.10 4,379 4,966 5 12.75 $540 $210,431 343 389
2 2019 Private $3,125,000 0.15 6,600 6,499 7 18.75 $481 $166,667 352 347
3 2019 Private $3,200,000 0.21 9,000 7,508 7 14.75 $426 $216,949 610 509
4 2007 City $3,700,000 0.21 9,148 6,800 10 17.50 $544 $211,429 523 389
5 2007 City $4,121,547 0.33 14,375 7,950 11 21.25 $518 $193,955 676 374
6 2007 City $5,371,923 0.82 35,719 17,300 24 47.00 $311 $114,296 760 368
7 2007, 2020 City $29,500,000 10.50 457,380 294,578 743.93 $100 $39,654 615 396
AVERAGE (rounded)$417
* Net square footage and FTEs are estimated based on average of the other properties in this data set (64 percent Floor Area Ratio (FAR)).
Source: City of Aspen
Project Source Developer Soft Costs
and Fees*^
Construction
Costs^TOTAL COSTS Housing
Units
Net Livable
Sq. Ft.FTEs $/Net Sq. Ft.$/FTE $/Net Sq. Ft.$/FTE $/Net Sq. Ft.$/FTE
Burlingame 2B (Phase 3)[1]City $9,993,753 $51,842,596 $61,836,349 79 84,160 193.00 $119 $51,781 $616 $268,614 $735 $320,396
802 West Main [1]PPP $1,676,394 $3,441,020 $5,117,414 10 6,800 17.50 $247 $95,794 $506 $196,630 $753 $292,424
517 Park Circle [1]PPP $1,779,759 $3,465,847 $5,245,606 11 7,950 21.25 $224 $83,753 $436 $163,099 $660 $246,852
488 Castle Creek [1]PPP $3,646,333 $8,204,250 $11,850,584 24 17,300 47.00 $211 $77,582 $474 $174,559 $685 $252,140
210 West Main [2]Private $961,982 $3,416,151 $4,378,133 8 7,200 18.00 $134 $53,443 $474 $189,786 $608 $243,230
AVERAGE (rounded)$187 $72,471 $501 $198,538 $688 $271,008
PPP = Public-Private Partnership
* Includes such items as: architectural and engineering services, plans, and studies; building permit fees; utility connection fees; and any other construction-related expenses.
^ In current (2021) dollars.
[1] Source: City of Aspen
[2] Source: King Louise LLC
Soft Costs and Fees Construction Costs Total Costs
FOR SALE UNITS SALES REVENUES BY CATEGORY AND SIZE OF UNIT (2020 APCHA Regulations)
Sales Price*Per FTE Sales Price*Per FTE Sales Price*Per FTE Sales Price*Per FTE Sales Price*Per FTE
Studio/0 Bedroom 1.25 $43,120 $34,496 $98,000 $78,400 $164,640 $131,712 $272,440 $217,952 $386,120 $308,896
1 Bedroom 1.75 $54,880 $31,360 $118,580 $67,760 $179,340 $102,480 $291,060 $166,320 $418,460 $239,120
2 Bedroom 2.25 $65,660 $29,182 $145,040 $64,462 $212,660 $94,516 $323,400 $143,733 $454,720 $202,098
3 Bedroom 3.00 $76,440 $25,480 $178,360 $59,453 $247,940 $82,647 $357,700 $119,233 $484,120 $161,373
AVERAGE $60,025 $30,130 $134,995 $67,519 $201,145 $102,839 $311,150 $161,810 $435,855 $227,872
* Sale price reduced by 2% to account for APCHA Commission
FOR RENT UNITS RENTAL REVENUE BY CATEGORY AND SIZE OF UNIT AFTER NON-CONSTRUCTION EXPENSES (2020 APCHA Regulations)
Rental Income^Per FTE Rental Income^Per FTE Rental Income^Per FTE Rental Income^Per FTE Rental Income^Per FTE
Studio 1.25 $55,362 $44,290 $98,735 $78,988 $147,529 $118,023 $195,801 $156,641 $268,471 $214,777
1 Bedroom 1.75 $68,603 $39,202 $115,938 $66,250 $164,315 $93,894 $214,777 $122,730 $287,133 $164,076
2 Bedroom 2.25 $81,323 $36,144 $133,245 $59,220 $181,622 $80,721 $232,188 $103,195 $304,441 $135,307
3 Bedroom 3.00 $94,251 $31,417 $148,988 $49,663 $199,450 $66,483 $249,495 $83,165 $322,061 $107,354
AVERAGE $74,885 $37,763 $124,226 $63,530 $173,229 $89,780 $223,065 $116,433 $295,526 $155,378
^ Rental income reflects a 15-year total, increased annually by 2%, and reduced by 50% to reflect non-construction related expenses.
Sources: APCHA Employee Housing Regulations, May 2020; City of Aspen; TischlerBise calculations.
COMBINED FOR SALE AND FOR RENT UNITS AVERAGE REVENUE FROM SALES AND RENTAL INCOME
Avg. Revenue Avg. Per FTE Avg. Revenue Avg. Per FTE Avg. Revenue Avg. Per FTE Avg. Revenue Avg. Per FTE Avg. Revenue Avg. Per FTE
Studio $49,241 $39,393 $98,367 $78,694 $156,084 $124,867 $234,121 $187,296 $327,295 $261,836
1 Bedroom $61,742 $35,281 $117,259 $67,005 $171,827 $98,187 $252,918 $144,525 $352,797 $201,598
2 Bedroom $73,492 $32,663 $139,142 $61,841 $197,141 $87,618 $277,794 $123,464 $379,580 $168,702
3 Bedroom $85,346 $28,449 $163,674 $54,558 $223,695 $74,565 $303,598 $101,199 $403,090 $134,363
AVERAGE (rounded)$67,455 $33,946 $129,611 $65,525 $187,187 $96,309 $267,108 $139,121 $365,691 $191,625
FTEs per
Unit
FTEs per
Unit
Category 1 Category 2 Category 3 Category 4 Category 5
Category 1 Category 2 Category 3 Category 4 Category 5
Category 1 Category 2 Category 3 Category 4 Category 5
208
MEMORANDUM
TO:Mayor and City Council
FROM:Nicole Henning, City Clerk
THROUGH:Kate Johnson, Assistant City Attorney
MEMO DATE:January 24, 2025
MEETING DATE:January 28, 2025
RE:Appointment of Election Commission
_____________________________________________________________________
REQUEST OF COUNCIL:
With the upcoming Municipal Election on March 4th, the Council would need to appoint
the Election Commission members. The City Clerk serves as Chair and the two other
seats are filled by city of Aspen citizens. Although our charter does not state that the
Election Commission need to be interviewed by Council, I am providing three
candidates for your consideration.
David Hyman has been serving on the Election Commission since 2013 and is seeking
reappointment.
The Honorable Gail Nichols, served on the Election Commission in 2023 and is also
seeking reappointment.
The third candidate is a previous City Clerk, Linda Manning.
As Chair of the Election Commission, I am recommending the reappointment of David
Hyman and Gail Nichols.
If Council wishes to interview these candidates, a special meeting will need to be
scheduled prior to our next regular meeting due to our scheduled Logic and Accuracy
Test.
209
MUNICIPAL JUDGE SERVICES AGREEMENT BETWEEN
THE CITY OF ASPEN AND TED D. GARDENSWARTZ
This Municipal Judge Services Agreement (the "Agreement") is made and entered into
the 1st day of February, 2025 (the "Effective Date"), by and between the City of Aspen, a
Colorado home rule municipality with an address of 427 Rio Grande Place, Aspen, Colorado,
81611, (the "City"), and Ted D. Gardenswartz an individual licensed to practice law in the State
of Colorado (“Judge Gardenswartz") (each a "Party" and collectively the “Parties”).
WHEREAS, the Aspen City Council hereby appoints Ted D. Gardenswartz as the City’s
presiding municipal judge pursuant to Section 7.2 of the City of Aspen Home Rule Charter and
Section 17.04.040 of the City of Aspen Municipal Code;
WHEREAS, Council desires to set the compensation of Judge Gardenswartz; and
WHEREAS, Judge Gardenswartz desires to accept the appointment of Municipal Judge
and the salary contained herein.
Now Therefore, for the consideration hereinafter set forth, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. Term. Judge Gardenswartz is hereby appointed as the presiding municipal court
judge commencing on February 1, 2025, and continuing through January 31, 2027.
Judge Gardenswartz may terminate this agreement, with or without cause, at any time
by providing thirty (30) days advance written notice of his intent to resign the
appointment.
2. Duties. Judge Gardenswartz shall preside as Judge over regular and special sessions
of the City of Aspen Municipal Court.
3. Compensation. Judge Gardenswartz shall be compensated at a rate of $30,000
annually, to be paid in bi-weekly installments, for up to three standing court sessions
each month, and additional court sessions for trials and evidentiary hearings as
needed. In addition, the City shall provide health insurance benefits for Judge
Gardenswartz and his spouse subject to the terms and conditions applicable to City
employees, including premiums paid by City employees for the benefits. These
benefits shall include health, dental, and visual insurance in accordance with the
City’s benefits policy.
4. Other Covenants. Judge Gardenswartz's performance and salary shall be reviewed
by the City Council prior to the expiration of this Agreement. Judge Gardenswartz
shall adhere to the highest professional conduct and ethics, including compliance with
the Colorado Code of Judicial Conduct and all other applicable ethical standards.
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5. Removal. Pursuant to C.R.S. § 13-10-105(2), and Section 7.2 of the City of Aspen
Home Rule Charter, Judge Gardenswartz may only be removed for cause.
6. Miscellaneous.
a. Integration. This Agreement constitutes the entire agreement between the Parties,
superseding all prior oral or written communications. Nothing herein shall be
deemed to create any terms, conditions or obligations in addition to those
provided for in Section 7.2 of the City's Home Rule Charter, Section 17.04.040 of
the City of Aspen Municipal Code, or C.R.S. § 13-10-105, nor is anything herein
intended to change the nature of the Municipal Judge position as an appointed
position under the Section 7.2 of the City's Home Rule Charter and C.R.S. § 13-
10-105(1). This Agreement is simply intended to memorialize the term and salary
of the Municipal Judge.
b. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of Colorado, and any legal action concerning the provisions hereof shall be
brought in Pitkin County, Colorado.
c. No Waiver. Delays in enforcement or the waiver of any one or more defaults or
breaches of this Agreement by the City shall not constitute a waiver of any of the
other terms or obligation of this Agreement.
d. Third Parties. There are no intended third-party beneficiaries to this Agreement.
e. Notice. Any notice under this Agreement shall be in writing and shall be deemed
sufficient when directly presented or sent pre-paid, first class U.S. Mail to the
Party at the address set forth on the first page of this Agreement.
f. Severability. If any provision of this Agreement is found by a court of competent
jurisdiction to be unlawful or unenforceable for any reason, the remaining
provisions hereof shall remain in full force and effect.
g. Modification. This Agreement may only be modified upon written agreement of
the Parties.
h. Assignment. Neither this Agreement nor any of the rights or obligations of the
Parties shall be assigned by either Party without the written consent of the other.
i. Governmental Immunity. The City and its officers, attorneys and employees, are
relying on, and do not waive or intend to waive by any provision of this
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Agreement, the monetary limitations or any other rights, immunities or
protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-
10-101, et seq., as amended, or otherwise available to the Town and its officers,
attorneys or employees.
j. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of the City not performed during the current
fiscal year is subject to annual appropriation, shall extend only to monies
currently appropriated, and shall not constitute a mandatory charge, requirement,
debt or liability beyond the current fiscal year.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE CITY OF ASPEN
By: ____________________________
Sara Ott
City Manager
MUNICIPAL COURT JUDGE
By: ____________________________
Ted D. Gardenswartz
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2024-395 AGREEMENT FOR THE LEASE AND OPERATION OF ISELIN TENNIS
COURTS
THIS AGREEMENT entered into at Aspen, Colorado, this 13th day of January, 2025 by
and between the CITY OF ASPEN, COLORADO, a municipal corporation and home-
rule city ("hereinafter "City"), and Aspen Pickleball, LLC (hereinafter "Operator").
WITNESSETH
WHEREAS, the City is the owner of the Iselin Courts in Aspen, Colorado, and desires
to contract with an operator to provide certain services during the summer seasons for the
operation of a Pickleball and Tennis Program at the Iselin Courts hereinafter referred to as
the "Premises"; and
WHEREAS, Operator has agreed to provide certain services relative to the summer use
of the Iselin Courts, as well as provide services regarding the general operation of the Iselin
Courts.
NOW, THEREFORE, in consideration of the mutual terms, covenants and conditions
contained herein, the parties agree as follows:
1.Term. The City herby grants Operator the exclusive right to use the Premises for the period
of May 1st to October 31st of each calendar year (each a “Lease Year”) beginning on May 1,
2025, extending through October 31, 2028. Operator has an option to continue through
November 30th of each year, which Operator may exercise by delivering the City written
notice of Operator’s intent to exercise this extension option on or before October 1st of the
year in question. Upon mutual agreement by the parties, the Operator may renew this
Agreement for an additional three (3) years, subject to the same terms and conditions set forth
herein as may be subsequently amended by the parties, by delivering the City written notice
of Operator’s intent to exercise this renewal option on or before October 31, 2028.
2.Premises. The Premises subject to this Lease Agreement shall be 7 pickleball courts and 1
tennis court, together with non-exclusive rights to ingress, egress and parking in the adjacent
parking lot, all located at street address 0861 Maroon Creek Road, Aspen, CO 81611.
3.Use. The Premises may be used by Operator solely for the purpose of operating tennis
& pickleball programming and providing services related thereto, including, but not
limited to, retail sales of equipment, clothing and supplies, renting equipment to the public,
for lessons, for any and all uses reasonably attendant to pickleball and tennis operations.
Operator shall not use the Premises for any other purposes without the City’s written
consent. Operator’s use and occupancy of the above-described Premises shall comply with
the rules, regulations and ordinances of any governmental authority having jurisdiction
over the Premises or the activities performed thereon. Additionally, Operator shall not use
the Premises in any manner that will create an increase in the rate of insurance or a
cancellation of any insurance policy, even if such use may be in furtherance of Operator's
retail sales. Operator shall not keep, use or sell anything prohibited by any policy of fire
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insurance covering the Premises.
4.Time of Occupancy, Acceptance and Surrender of Premises. Operator shall be entitled to use
and occupy the Premises during the summer season as set forth at Paragraph 1 herein.
Occupancy of the Premises by the Operator shall be construed as recognition that the Premises
are in a good state of repair and in sanitary condition. Operator will take use and occupancy of
the Premises throughout the dates outlined above (including any applicable extensions of the
season through October 31st), of each year this agreement is in effect. The provision herein
for use and occupancy of the Premises may be varied on written understanding of the parties.
Operator shall coordinate with the City to ensure change in possession is orderly and timely.
A representative of the City shall inspect the Premises at the beginning and end of each season's
occupancy, with a representative from Operator to assess if any repairs are necessary and who
shall be responsible for them.
5.Rent. Operator agrees to pay ten percent (10%) of all gross sales up to $100,000 and fifteen
percent (15%) of all gross sales over $100,000 as defined herein. Operator shall pay its first
installment of percentage rent on or before the fifteenth (15th) day of the calendar month
immediately after the one in which the percentage rent became effective, and thereafter it
shall pay the required percent of each month’s gross sales by the fifteenth (15th) day of the
following month. Operator shall also submit to City an itemized statement of gross sales
(as defined below) and a sales tax report for the preceding month on or before the fifteenth
(15th) day of each calendar month during the term of this Lease and any renewal, extensions,
or holding over hereunder.
i)In addition, within thirty (30) days after the end of each Lease Year, Operator
shall deliver to City a written statement signed by a certified public accountant or
by some other person acceptable to City, setting forth the amount of Operator ' s gross
sales for the preceding Lease Year. Accountant or other person shall certify that the
gross sales have been computed in accordance with the definition given below, and
the statement shall be sufficiently detailed to show it was in fact prepared in
accordance with such definition. If the percentage rent for the Lease Year is more
than the total thereof actually paid by Operator, Operator shall pay the balance
due to City within thirty (30) days of delivery of the annual statement.
ii)The term "gross sales" as used in this Lease Agreement shall mean the full
amount of the actual sales price of all merchandise, services sold for cash or credit
in or from the Leased Premises by the Operator, charges for use of courts, cost of
membership packages, or any other income derived from the premises. The figure for
gross sales will include deposits not refunded to customers, orders of any kind
received or filled at the leased Premises, receipts from vending machines located
upon the leased Premises, and any other receipts which the Operator ordinarily
would credit to his business. Each credit or installment sale will be treated as a sale
for the full price in the month it is made, and there will be no deductions for
uncollected accounts or bad debts.
iii)The term “gross sales” as used in this Lease Agreement shall not include:
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1)refunds or discounts extended to customers;
2)refunds received by Operator from returns to shippers and manufacturers;
3)sales of trade fixtures or operating equipment;
4)sums received in settlement of claims of loss or damage of merchandise;
5)retail sales tax recorded at the time of each sale and expressly charged to the
customer;
6)postage charged to customers;
7)co-operative advertising revenues provided by suppliers; or
8)any property or sales taxes paid by Operator.
iv)In operating on the leased Premises, the Operator agrees to issue a serially-
numbered duplicate sales slip, invoice, non-resettable cash register receipt, or other
record approved by City, with each sale of any kind. During the term of the Lease
Agreement, Operator shall keep accurate records of all his operations. These
records shall conform to generally accepted accounting practices, and shall include
records of gross sales and of receipts and deliveries of all merchandise. Operator
shall keep all the documents relating to Operator's operations for at least thirty-six (36)
months from the end of the Lease Year to which they apply. If any audit is required,
or Operator and City disagree about the rent, Operator will keep its records until the
audit is completed or the disagreement is settled.
v)At any reasonable time, and following at least twenty-four (24) hours’ notice
in writing to Operator, City or City 's authorized representative may audit any of
Operator ' s records of gross sales. If, when City audits the records for a Lease
Year based on normal accounting procedures, it finds that the Operator has
understated its gross sales for the Lease Year by five percent (5 %) or more,
Operator shall be required to pay for the audit, and shall promptly deliver to City the
difference Operator owes it, plus interest on such difference at the rate of eight
percent (8 %) per annum from the first day of the current Lease Year to the date
such difference is paid. If such audit discloses that Operator has understated his
gross sales for that Lease Year by five percent (5 %) or more, City shall be permitted
to treat such event as a material default hereunder. In this matter, the report of City’s
accountant shall be binding and conclusive.
6.Access to Premises. City shall be entitled to enter upon the Premises at all reasonable
hours for the purpose of inspecting the same, preventing waste or loss, or enforcing any of
City's rights hereunder.
7.Duties of Operator Relative to Operation of Tennis Center. During the term of this
Agreement the Operator agrees:
a.To provide the Pickleball/Tennis-related services described in this
Agreement for each summer season for which this Lease Agreement is in
effect.
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b.To employ and maintain for the benefit of the parties, at Operator's own
cost and expense, employees of sufficient number and qualifications to
operate and manage the Premises consistent with the highest professional
standards of quality, courtesy, and customer service.
c.To perform the following general duties, at the discretion of Operator,
with pricing applicable only for the first Lease Year and thereafter
adjusted by Operator following the written approval of the Recreation
Department, which approval shall not be unreasonably withheld:
i.Operate a pickleball and tennis programming for ages five to
adult.
ii.Offer monthly and seasonal membership packages
•Operator will offer memberships for community, ranging
between $85 and $150 per month
iii.Offer Youth and Adult Group Clinic Programs fee range from
$25-$87 per clinic
iv.Offer Private instruction fee range from $25 -$200 per session
v.Offer league and tournament play
vi.Offer Open Court Community Play
vii.Provide the City of Aspen with monthly reports showing activity
counts, revenues and expenses.
d.To keep full records and accounts in regard to the operation and
management of the Premises, which records and accounts shall be
available at the end of the summer season for inspection by the City’s
auditors and/or Finance Director.
e.To make available for retail sale such merchandise as is commonly sold
in Pickleball/Tennis-oriented operations; Operator agrees to maintain
an adequate inventory of such merchandise. Operator shall devote its
best energies and adequate time to the promotion of sales at the
Premises and may engage in similar sales at its business locations in
the City of Aspen, provided such off-premises sales do not interfere
with Operator 's duties hereunder.
8.Duties of the City Relative to the Tennis Center. During the term of this Agreement the
City agrees:
a.To maintain the courts property from May 1 until October 31. As
Operator is largely dependent on the courts for its revenues, should the
City be unable to continue the maintenance of the courts for any reason
Operator shall be released from its obligations under the lease until such
time as the City is able to resume its duties in this regard.
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b.To permit Operator to use the Premises for Operator’s sole use and
occupancy with respect to its duties and privileges under this Agreement.
c.To set-up and take down and maintain windscreens, divider nets, court
nets, courts, and fixed assets (such as the court surfaces, fences, etc).
Replacement of fixed assets must go through a multiple year request
process through the City of Aspen. At the end of each season Operator
can request replacement of assets for next year.
d.City shall maintain irrigation system relative to the courts.
9.Utilities. Utilities, including water, trash/recycling, and electric, will be provided and paid
by the City of Aspen.
10.Personal Property. All personal property and trade fixtures placed on the Premises shall
be at Operator's sole risk and City shall not be liable for damage to or loss of such personal
property or trade fixtures arising from the acts or neglect of Operator, its agents or
employees. Any personal property or trade fixtures of Operator or anyone claiming under
Operator, which remains on the. Premises after the date upon which the Premises is
surrendered shall be deemed to have been abandoned and may be retained by City as its
property or disposed of by City in such a manner as City sees fit.
11.Taxes. In the event any taxes are levied and assessed upon the Premises or upon the
improvements, fixtures or personal property of the Operator during the term of Operator's
occupancy of the Premises or arising therefrom, or upon the leasehold or possessory
interests as created through this lease, Operator shall be solely responsible to satisfy and
pay all such taxes in a timely fashion. Operator shall not allow any liens for taxes or
assessments to exist with respect to the Premises, except that Operator may permit such
taxes or assessment to remain unpaid while pursuing any good faith contest or appeal of same.
12.Indemnification. Operator agrees to indemnify and hold harmless the City, its officers and
employees, from and against all liability, claims, and demands, on account of injury, loss,
or damage, including, without limitation, claims arising from bodily injury, personal injury,
sickness, disease, death , property loss or damage, or any other similar loss , which arise
out of or are in any manner connected with this Agreement, if such injury, loss, or damage
is caused in whole or in part by, or is claimed to be caused in whole or in part by, the
omission, error, or negligence of the Operator , any subcontractor of the Operator, or
which arises out of any workmen's compensation claim of any employee of the Operator
or of any employee of any subcontractor of the Operator. To the extent allowed by law, the
City agrees to indemnify and hold harmless the Operator, its officers and employees, from
and against all liability, claims, and demands, on account of injury, loss, or damage,
including, without limitation, claims arising from bodily injury, personal injury, sickness,
disease, death , property loss or damage, or any other similar loss , which arise out of or are
in any manner connected with this Agreement, if such injury, loss, or damage is caused in
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whole or in part by, or is claimed to be caused in whole or in part by, the omission, error,
or negligence of the City, any subcontractor of the City, or arises out of any workmen's
compensation claim of any employee of the City or of any employee of any subcontractor
of the City.
13.Public Liability Insurance. Operator agrees to furnish City with certificate(s) of insurance as
proof that it has secured and paid for a policy of public liability insurance covering all
public risks related to the leasing, use, occupancy, maintenance, operation or location of
the Premises. The insurance shall be procured from a company authorized to do business
in the State of Colorado and be satisfactory to City. The amount of this insurance, without
co-insurance clauses, shall not be less than the maximum liability that can be imposed upon
the City of Aspen under the laws of the State of Colorado found at C.R.S. 24-10-101 et
seq., as amended. At present, such amounts shall be as follows:
$350,000.00 for any injury to one person in any single occurrence
$990,000.00 for any injury to two or more persons in any single occurrence.
In no event shall such insurance amounts fall below those maximum liability limits as set
forth at C.R.S. 24-10-114, as amended.
14.Premises Insurance. During the full term of this Agreement, Operator, at its sole cost and
expense, shall also cause all of the furniture, fixtures, and equipment (excluding the ball
machines) in the premises to be kept insured, without co-insurance clauses, to the full
insurable value against the perils of wind, storm, hail, lightning, explosion, fire and like
perils. "Full insurance value" means the cost, as of the date of loss, for replacement of
the damaged or destroyed property in a new condition with materials of like size, kind and
quality. The insurance shall stand as primary insurance for the furniture, fixtures, and
equipment in the Premises to be procured from a company authorized to do business in
the State of Colorado and be satisfactory to the City. All policies as required herein shall
contain a waiver of subrogation by the insurer against City. A complete list of equipment
needs will be established at the beginning and end of each season.
15.Termination Due to Fire or Similar Catastrophe. If negligent on part of operator , the
Premises shall be damaged by fire or other catastrophe so as to render said Premises wholly
inoperable, and if such damage is so great that a competent licensed architect in good
standing in Pitkin County, Colorado, as selected by the City within fourteen (14) days from
the date of loss, shall certify in writing to the City and Operator that the Premises, with
reasonable diligence, cannot be made fit for occupancy within ninety (90) days from the
happening of the occurrence of the damage, then this Agreement may terminate and City
may re-enter and take possession. Such a termination of the Agreement shall not forgive
Operator's obligations to return the Premises to City in as good repair as when operator
originally assumed possession thereof, regular and ordinary wear and tear excepting.
Alternatively, Operator shall subordinate its rights and interests in any insurance proceeds
as provided for in any insurance policy as required by this Agreement. If, however, the
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damage is not such as to prevent reoccupation and use of the Premises within ninety (90)
days, then repairs thereto shall be undertaken by Operator with all reasonable speed to
restore the Premises to its former condition and the Agreement shall remain in effect.
Operator's duties and obligations to provide services and to pay rent to the City as herein
set forth shall be suspended during those time periods wherein the Premises are unfit for
normal business activities due to fire or other catastrophe, and/or repair activities associated
therewith.
16.City to be named a Co-Insured or Additional Insured. Operator shall name City as co-insured
or additional insured on all insurance policies and such policies shall include a provision that
written notice of any non-renewal, cancellation or material change in a policy by the insurer
shall be delivered to City thirty (30) days in advance of the effective date.
17.Repairs and Alterations by Operator. Operator, upon City’s written consent, may, at its own
expense, make reasonable and necessary alterations or improvements to the Premises. All
alterations, additions and improvements shall be performed in a workmanlike manner, in
accordance with all applicable building and safety codes, and shall not weaken or impair the
structural strength or lessen the value of the Premises. All alterations, additions and
improvements made in or to the Premises shall be the property of City and remain and be
surrendered with the Premises upon termination of this Agreement. Operator agrees that prior to
any construction or installation of alternations, additions or improvements, Operator shall post
on the Premises in a conspicuous place a notice of non-liability for mechanic's lien as specified
at C.R.S. Section 38-22-105 on behalf of the City and shall notify City of such posting and
the exact location of same. Perfection of a mechanic's lien against the Premises as a result of
Operator's acts or omissions may be treated as a material breach of this lease.
18.Repairs and Alterations by City. City reserves the right, from time to time, at its own expense
and by its officials, employees and contractors, to make such alterations, renovations or
repairs in and about the Premises, other than those noted above as required by Operator, as
City deems necessary or desirable and Operator covenants to make no claim against City
for any interference with its interest as herein provided in the Premises. City shall provide
reasonable notice to Operator in advance of any intent to undertake alterations or repairs as
authorized in this paragraph and all work shall be performed at such times as mutually agreed
to between the parties so as to eliminate or minimize any disruption of Operator's business.
19.Condemnation. If during the term of this Agreement, or any renewal of it, the whole or part
of the Premises, or such portion as will make the Premises unusable for the purpose leased,
or the leasehold interest, be condemned by public authority, including City, for public use,
then this Agreement shall cease as of the date of the vesting of title in the Premises in such
condemning authority, or when possession is given to such authority, whichever event occurs
first. Operator shall not be entitled to any part of any condemnation award for the value of the
unexpired term of this Agreement or for any other estate or interest in the Premises, such amount
belonging entirely to City.
20.Assignment of Agreement. Operator shall not assign, pledge, sublease or otherwise dispose of
or encumber this lease, or the leased Premises, without the prior written consent of the City,
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which consent shall not be unreasonably withheld. Operator shall, likewise, not permit any
third party to occupy or use the Premises absent the prior written consent of the City.
21.Signs. Operator shall not place any signs upon the Premises or upon the buildings except of such
design and construction as may be permitted by City. It is understood by the parties that placement
of an identification sign or signs is important and necessary to Operator's business. Any sign
permitted by City shall at all times comply with applicable ordinances, rules and regulations.
22.Breach by Operator Defined. If Operator shall fail to timely comply with any of the terms or
conditions of this Agreement or any notice given under it, or shall become insolvent, or shall
have or attempt to make an assignment for the benefit of creditors, or if any of its property be
attached and such attachment is not promptly released, or if an execution be issued against it, or
if a petition be filed by or against it, to have it adjudicated a bankrupt, or if a trustee or receiver
shall be created or appointed to take charge of its assets, or if it shall abandon the Premises
for a period of more than seventy-two (72) hours, then at any time afterwards City may treat
such act or omission as a breach of this Agreement and, at its option, enter into the Premises
and remove all persons and take and retain possession thereof either with process of law.
23.City’s Remedy for Breach. Any breach, default or failure by Operator to perform any of the
duties or obligations assumed by Operator under this Agreement shall be cause for termination
of the Agreement by City in the manner set forth in this paragraph. City shall deliver to Operator
thirty (30) days' prior written notice of its intention to terminate this Agreement, including in
the notice a reasonable description of the breach, default or failure. If within that thirty (30)
days Operator shall fail or refuse to cure, adjust or correct the breach, default or failure to the
reasonable satisfaction of City, the City shall have the right to declare this Agreement terminated
and all rights, powers and privileges of Operator as provided through the Agreement shall cease,
and Operator shall immediately vacate the entire Premises and shall make no claim of any kind
against City by reason of the termination. The thirty (30) days' prior written notice shall be
conclusively determined to have been delivered to Operator by the posting of same upon the
main business entrance to the Premises, or at the time it is deposited in the U.S. Mail, certified,
postage prepaid, addressed to the address set forth at Paragraph 29 herein.
24.Non-Waiver of Rights. Any failure by City to so terminate this Agreement as herein provided
after the breach, default or failure by Operator to adhere to the terms of the Agreement shall
not be deemed or construed to be a waiver or continuing waiver by City of any rights to terminate
the Agreement for any present or subsequent breach, default or failure.
25.Termination by Operator. Operator may terminate this Agreement and be relieved of all
obligations hereunder by providing City thirty (30) days' written notice of its intent to terminate.
Operator shall provide a full accounting of all funds, costs and equipment upon termination.
26.Non-Discrimination. Operator agrees to comply with all laws, ordinances, rules and regulations
that may pertain or apply to the Premises and its use. In performing under the Agreement,
Operator shall not discriminate against any worker, employee or job applicant, or any member
of the public, because of race, color , creed, religion, ancestry, national origin, sex, age, marital
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status, physical handicap, affectional or sexual orientation, family responsibility or political
affiliation, nor otherwise commit an unfair employment practice.
27.Independent Contractor Status. It is expressly acknowledged and understood by the parties that
nothing contained in this Agreement shall result in or be construed as establishing an
employment relationship. To the extent that this Agreement may be construed as requiring
Operator to provide services to or on behalf of City, Operator shall be, and shall perform as,
an independent contractor who agrees to use his or her best efforts to provide the said services
on behalf of the City. No agent, employee, or servant of Operator shall be, or shall be deemed
to be, the employee, agent or servant of the City. City is interested only in the results obtained
under this Agreement. The manner and means of conducting the work are under the sole control
of operator. None of the benefits provided by City to its employees including, but not limited
to, workers' compensation insurance and unemployment insurance, are available from City to
the employees, agents or servants of Operator. Operator shall be solely and entirely responsible
for its acts and for the acts of Operator's agents, employees, servants and subcontractors
during the performance of this Agreement. Operator shall indemnify City against all liability
and loss in connection with, and shall assume full responsibility for, ·payment of all federal ,
state and local taxes or contributions imposed or required under unemployment insurance,
social security and income tax law, with respect to Operator and/or Operator's employees
engaged in the performance of the services agreed to herein.
28.Notice. Whenever this Agreement calls for or provides for notice and notice is not otherwise
specified, the same shall be provided in writing and shall be served on the person( s) as
designated by the parties below, either in person or by certified mail, postage prepaid and
return receipt requested.
For City: Aspen City Manager
427 Rio Grande Place Aspen, Colorado 81611
For Operator: Aspen Pickleball LLC
The parties may change or add such designated person(s) or addresses as may be
necessary from time to time in writing.
29.Binding Effect. All of the terms and conditions as contained in this Agreement shall inure
to the benefit of and be binding upon the successors and assigns of the parties.
30.Controlling Law. This Agreement shall be enforced and interpreted in accordance with
the laws of the State of Colorado. Any action brought to enforce or interpret this Agreement
shall be brought in the District Court in and for Pitkin County, Colorado. In the event of
litigation between the parties concerning this Agreement or matters arising therefrom, the
prevailing party shall be awarded its costs and reasonable attorney’s fees.
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31. Entire Agreement. This instrument constitutes the entire Agreement by the parties
concerning the Premises and shall supplant and supersede any previous agreements
between the parties pertinent to the Premises. Any prior or contemporaneous oral or
written agreement that purports to vary from the terms as set forth herein shall be void
and of no effect.
32.Amendments. Except as otherwise provided herein, this Agreement and all of its terms
and conditions may not be amended or modified absent a written agreement duly executed
by the parties.
WHEREFORE, the parties, through their duly authorized representatives, have executed this
Agreement upon the dates as forth herein.
CITY OF ASPEN:
_________________________________
Sara Ott, City Manager
OPERATOR:
By:____________________________
Title: __________________________
Date: __________________________
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Lauren Andersen
Owner of Aspen Pickleball
1/21/2025 | 3:39:54 PM MST
64222
N O V E M B ER 2 0 2 4
Pickleball Proposal
for Iselin Courts and
the Aspen Community
Lauren Andersen, Aspen Pickleball
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To foster the happiness and health of the
Aspen community through exceptional
pickleball programs that bring people
together, promote active lifestyles, and
create a welcoming space for all.
Mission
To be a cornerstone of the Aspen
community of all ages, fostering lifelong
friendships, promoting active lifestyles,
and inspiring joy both on and off the court.
Vision
Mission and Vision
P I C K L E B A L L P R O P O S A L
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S E C T I O N 1 . I N T R O D U C T I O N
Dear COA and ARC Team,
We are honored to submit our proposal for the Lease and Operation of the Iselin Courts
in partnership with the City of Aspen and Aspen Pickleball LLC. This opportunity allows
us to elevate our service to the Aspen community, ensuring residents and visitors receive
exceptional experiences while supporting the City’s goals.
While our proposal outlines a clear vision for services, schedules, and rates, we are most
excited about collaborating with the City, the Aspen Recreation Center, and our residents
and guests to refine an operation that works amazingly for all involved. Together, we are
certain we can meet the needs of the community in the best possible way.
We are deeply committed to diversity and inclusion, integrating equitable practices
across our operations and fostering opportunities for all. Moving into 2025 we are
already employing new programs to reach underrepresented populations and ensure
that no one is left out. We live and breathe in Aspen so sustainability is also central to our
mission. We are excited to partner with the city to ensure this operation aids in achieving
climate goals and we embed environmentally conscious practices into our operations.
Thank you for this opportunity to partner with the City of Aspen. We are excited to
introduce ourselves to you and we look forward to contributing to our community’s well-
being and success.
Warm regards,
Lauren Andersen - Director
Aspen Pickleball, LLC
847-845-4673
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S E C T I O N 1 . I N T R O D U C T I O N
Lauren Andersen,
Director, PPR
Originally from Chicago in where she competed as a collegiate tennis athlete, Lauren has turned her
love for pickleball into a successful career, earning several medals at the highest levels, including 5.0
Gold at the 2023 US Open and Silver in Singles at Nationals.
Now competing on the pro circuit, she recently represented at the 2024 World Championships in
Dallas in both Pro Singles and Doubles events. Beyond her achievements, Lauren brings energy,
warmth, dedication, and a genuine love for teaching. With her competitive edge and fun- loving
approach, Lauren is a one-of-a-kind coach. Off the court, she’s an adventurer, an avid camper, and a
skilled nurse, making her a well-rounded, well known, inspiring presence in the Aspen pickleball
community.
Over the years of competing at a high level in pickleball, Lauren has built an extensive network of
connections within the sport. Many of her touring pickleball pro friends ( many of the top players in
the world!), enjoy visiting the Aspen area to host clinics and events, enriching our programming with
their expertise. We are excited to continue offering these unique opportunities if the City of Aspen
allows.
In the winter, Lauren also keeps up her skills by coaching at the Snowmass Recreation Center, utilizing
the gym to keep pickleball accessible year-round. She is eager to collaborate with the City of Aspen to
expand indoor pickleball offerings if interested.
847.845.4673
lauren@aspenpickleball.com
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During the busy summer months, Lauren and Aspen Pickleball assemble a skilled team of coaches to
meet demand:
Eli Mautner, a collegiate national champion with PPR certification and exceptional training expertise,
who is interested in returning. We will have one head pickleball and tennis pro on staff.
Bonnie Scott, highly skilled pickleball player and coach will also be assisting with clinics, lessons, and
round robins.
Head Pros, PPR, USTA
Pickleball Instructors
Additionally, Aspen Pickleball will hire dedicated tennis instructors to enhance the tennis
programming.
Tennis Instructors
Aspen Pickleball will hire 3-6 seasonal coaches to help with drop in sessions and to assist
with clinics and Round Robins next to the Head Pro or Director. One of the current
instructors include:
Mary Layne Holloway, is a collegiate player at Grand Canyon University and is recognized
for her exceptional coaching skills, particularly in youth sports, where she has demonstrated
a strong ability to mentor and develop young athletes.
S E C T I O N 1 . I N T R O D U C T I O N
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S E C T I O N 2 . Q U A L I F I C A T I O N S A N D E X P E R I E N C E
Town of Snowmass Village-
Snowmass Recreation Center
2835 Brush Creek Rd, Snowmass Village, CO 81615
970.922.2240
Manage, create, and oversee pickleball programming
Organize leagues, round robins, clinics, and lessons
Hire exceptional and highly trained staff members to run programming and
drop in.
Manage and staff drop in assuring a smooth working system for the flow of
players and skill levels
Provide quality instruction and resources for players of all levels.
Snowmass Club
239 Snowmass Club Cir, Snowmass Village, CO 81615
970.923.5600
Program Development and Coaching: Design and lead pickleball programs,
including clinics, leagues, and tournaments, to cater to all skill levels while
providing expert instruction.
Facility Management: Oversee court scheduling and maintenance, ensuring a
great playing environment for members.
Community Engagement: Created an inclusive pickleball community through
inviting communication skills, providing social events, and member feedback.
Administration: Constant communication with various team members on the
executive team including GM. Assisted with managing budgets, and tracking
program success to enhance our program offerings.
Aspen Pickleball Programming 2022-2024
Director of Pickleball 2023-2024
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Time
09:00
10:00
11:00
13:00
12:00
14:00
15:00
Mon Tue Wed Thu Fri Sat Sun
Example of a Weekly Calendar
Drop in
Drop In Drop In
Drop in Drop in
Drop In
FREE Beginner
Clinic 1 a month
Advanced
Clinic
Lessons
Lessons
Lessons
Lessons
Dink Mixer!
Advanced
Clinic
Lessons
Lessons
Lessons
Lessons After Camp
Youth Pickle
paddle included
Afternoon
Drop in time
S E C T I O N 3 . A P P R O A C H T O P R O J E C T
After Camp
Youth Pickle
Lessons
Intermediate
Clinic Open Court
time
Afternoon
Drop in time
Evening
Drop in time
17:00
18:00
Evening
Drop in time
Open Court
time
Afternoon
Drop in time
Open Court
time
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S E C T I O N 3 . A P P R O A C H T O P R O J E C T
Programs:
Private and Semi-Private Lessons: for individuals or small groups to enhance skills and strategies. These
lessons are very customizable to individuals and their skill level.
Youth and Adult Clinics: We will offer a range of group clinics, focusing on skill development and
recreational enjoyment, at city-approved rates.
Round Robins: Organized play sessions fostering competitive yet friendly matches among participants.
Often these will include game analysis instruction by a coach.
Facility Management:
Court Scheduling: management of court availability to allow for programs, drop in, open times for the
public to use courts with friends and family.
Technology Integration: Use of online platforms to sign up for clinics, round robins, and other events via
the website. Drop-in sign-ins can be done directly at the courts using iPads, streamlining the process
with minimal extra equipment.
Community Engagement:
Inclusive Programs: Employ bilingual coaches and offer programs designed to engage and include the
currently underrepresented populations in our pickleball community.
Scholarship Program: Through our scholarship initiative, we will ensure that financial barriers do not
prevent community members from accessing our programs.
Volunteer opportunities: We love to have volunteers in the communities to help with drop in and/or
assist with clinics.
Leagues and Tournaments: Host local tournaments and social events to create some fun competitive
games for the pickleball community.
Nonprofit Initiatives: Organize charity and nonprofit tournaments to support and benefit our Aspen local
organizations.
Youth Programs: After school (after camp) camps to introduce and nurture tennis/pickleball skills among
younger players. This can be in collaboration with the Aspen Recreation Center camps and may be able
to have a pickleball/tennis component.
Sustainability Considerations: Aspen Pickleball LLC is dedicated to supporting Aspen’s sustainability
goals. We commit to sustainable practices, including using eco-friendly products, minimizing waste, and
supporting community environmental initiatives.
Retail Inventory:
Sales and Demos: Offer a selection of paddles, racquets, overgrips, balls, paddle weights, etc, with
opportunities for players to try out and demo paddles before purchase. Some of these items will be on
site, and we will have many more through online and mobile purchasing options which can be purchased
right on the court. Most importantly, we are excited to work with your employees and our clients to
build the best mix that works for all.
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S E C T I O N 4 . R E F E R E N C E S
Riley Bonilla
Program Coordinator, Town of Snowmass Village
rbonilla@tosv.com
p: 970-922-2289
Private Client and Aspen Local
wendy@avalanchecheese.com
p: 970-379-3829
Wendy Mitchell
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Programs Cost
Pickleball Programming (Lessons, clinics,
round robins)
90-80/10-20 split with rec center or
Aspen Pickleball can pay a rental fee when
using the courts-Open for discussion
Pickleball Lessons Lessons run from $25-200.00
Court Rental $36-40.00
Memberships $85-150.00
Clinics
$25-87/person for 1.5 hour clinic. I would
also be interested in running a free
beginner clinic once a month or so to get
the Aspen Community involved in more
activities and to learn the sport that i
love.
I would also like to offer clinic packs in
which you get a 10% off if you buy in
volume.
Round Robins $10-35 for 2 hours depending on type of
Round Robin and if it includes coaching.
Drop In Sessions
$10-20 or buy a summer pass for $150
which can also give you a discount on
clinics/Round Robins
Financial Projections
S E C T I O N 5
These projections are informed by the pricing models of other operations within our
immediate market. However, we’re absolutely open to, and excited, to discuss the possibility
of adjusting our rates to ensure our services accessible and supportive of the community
ensuring we align with our mission to foster inclusion and connection. We are very open to
creative solutions that will work for all parties involved.
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lauren@aspenpickleball.com
847.845.4673
For inquiries,
contact us.
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Agreement Professional Services Page 0
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CORE - Foundational Programming and Building IQ Support
CITY OF ASPEN STANDARD FORM OF AGREEMENT
PROFESSIONAL SERVICES
City of Aspen Contract No.: 2024-519 - PS1355044
AGREEMENT made the 7th day of January, 2025.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5079
And the Professional:
Community Office for Resource Efficiency (CORE)
PO Box 2449 and 129 Emma Road Unit B
Basalt, CO 81621 US
970-925-9775
ceo@aspencore.org
For the Following Project:
Exhibits appended and made a part of this Agreement:
The City and Professional agree as set forth below.
If this Agreement requires the City to pay
an amount of money in excess of
$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: 1/28/202501-28-2025
Resolution No.: 2025-003
Exhibit A: Scope of Work.
Exhibit B: Fee Schedule.
Total: $ 1,170,000.00
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1.Scope of Work. Professional shall perform in a competent and professional manner the Scope
of Work as set forth at Exhibit A attached hereto and by this reference incorporated herein.
2. Completion. Professional shall commence Work immediately upon receipt of a written Notice
to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is
consistent with professional skill and care and the orderly progress of the Work in a timely manner.
The parties anticipate that all Work pursuant to this Agreement shall be completed no later than
December 31, 2025. Upon request of the City, Professional shall submit, for the City's approval, a
schedule for the performance of Professional's services which shall be adjusted as required as the
project proceeds, and which shall include allowances for periods of time required by the City's project
engineer for review and approval of submissions and for approvals of authorities having jurisdiction
over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be
exceeded by the Professional.
3.Payment. In consideration of the work performed, City shall pay Professional on a time and
expense basis for all work performed. The hourly rates for work performed by Professional shall not
exceed those hourly rates set forth at Exhibit B appended hereto. Except as otherwise mutually agreed
to by the parties the payments made to Professional shall not initially exceed the amount set forth
above. Professional shall submit, in timely fashion, invoices for work performed. The City shall
review such invoices and, if they are considered incorrect or untimely, the City shall review the matter
with Professional within ten days from receipt of the Professional's bill.
4.Non-Assignability. Both parties recognize that this Agreement is one for personal services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the other.
Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or
obligations under this Agreement. Professional shall be and remain solely responsible to the City for
the acts, errors, omissions or neglect of any subcontractors’ officers, agents and employees, each of
whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent
of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due
which may be due to any sub-contractor.
5. Termination of Procurement. The sale contemplated by this Agreement may be
canceled by the City prior to acceptance by the City whenever for any reason and in its sole
discretion the City shall determine that such cancellation is in its best interests and convenience.
6.Termination of Professional Services. The Professional or the City may terminate the
Professional Services component of this Agreement, without specifying the reason therefor, by
giving notice, in writing, addressed to the other party, specifying the effective date of the termination.
No fees shall be earned after the effective date of the termination. Upon any termination, all finished
or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or
other material prepared by the Professional pursuant to this Agreement shall become the property of
the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for
damages sustained by the City by virtue of any breach of this Agreement by the Professional, and
the City may withhold any payments to the Professional for the purposes of set-off until such time
as the exact amount of damages due the City from the Professional may be determined.
7.Independent Contractor Status. It is expressly acknowledged and understood by the parties
that nothing contained in this agreement shall result in or be construed as establishing an employment
relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to
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use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or
servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City.
City is interested only in the results obtained under this contract. The manner and means of
conducting the work are under the sole control of Professional. None of the benefits provided by City
to its employees including, but not limited to, workers' compensation insurance and unemployment
insurance, are available from City to the employees, agents or servants of Professional. Professional
shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees,
servants and subcontractors during the performance of this contract. Professional shall indemnify
City against all liability and loss in connection with and shall assume full responsibility for payment
of all federal, state and local taxes or contributions imposed or required under unemployment
insurance, social security and income tax law, with respect to Professional and/or Professional's
employees engaged in the performance of the services agreed to herein.
8.Indemnification. Professional agrees to indemnify and hold harmless the City, its officers,
employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on
account of injury, loss, or damage, including without limitation claims arising from bodily injury,
personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind
whatsoever, which arise out of or are in any manner connected with this contract, to the extent and
for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole
or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, error,
professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the
Professional, or any officer, employee, representative, or agent of the Professional or of any
subcontractor of the Professional, or which arises out of any workmen's compensation claim of any
employee of the Professional or of any employee of any subcontractor of the Professional. The
Professional agrees to investigate, handle, respond to, and to provide defense for and defend against,
any such liability, claims or demands at the sole expense of the Professional, or at the option of the
City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in
connection with, any such liability, claims, or demands. If it is determined by the final judgment of a
court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the
act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the
Professional for the portion of the judgment attributable to such act, omission, or other fault of the
City, its officers, or employees.
9.Professional's Insurance.
(a) Professional agrees to procure and maintain, at its own expense, a policy or policies
of insurance sufficient to insure against all liability, claims, demands, and other obligations
assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition
to any other insurance requirements imposed by this contract or by law. The Professional shall
not be relieved of any liability, claims, demands, or other obligations assumed pursuant to
Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its
failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City.
All coverages shall be continuously maintained to cover all liability, claims, demands, and
other obligations assumed by the Professional pursuant to Section 8 above. In the case of any
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claims-made policy, the necessary retroactive dates and extended reporting periods shall be
procured to maintain such continuous coverage.
(i)Worker's Compensation insurance to cover obligations imposed by applicable
laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of ONE MILLION DOLLARS
($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00)
disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each
employee. Evidence of qualified self-insured status may be substituted for the
Worker's Compensation requirements of this paragraph.
(ii)Commercial General Liability insurance with minimum combined single
limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and THREE
MILLION DOLLARS ($3,000,000.00) aggregate. The policy shall be applicable to
all premises and operations. The policy shall include coverage for bodily injury, broad
form property damage (including completed operations), personal injury (including
coverage for contractual and employee acts), blanket contractual, independent
contractors, products, and completed operations. The policy shall include coverage
for explosion, collapse, and underground hazards. The policy shall contain a
severability of interests provision.
(iii)Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and TWO MILLION DOLLARS
($2,000,000.00) aggregate with respect to each Professional's owned, hired and non-
owned vehicles assigned to or used in performance of the Scope of Work. The policy
shall contain a severability of interests provision. If the Professional has no owned
automobiles, the requirements of this Section shall be met by each employee of the
Professional providing services to the City under this contract.
(iv)Professional Liability insurance with the minimum limits of ONE MILLION
DOLLARS ($1,000,000) each claim and TWO MILLION DOLLARS ($2,000,000)
aggregate.
(c) The policy or policies required above shall be endorsed to include the City and the City's
officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or
provided through any insurance pool of the City, shall be excess and not contributory
insurance to that provided by Professional. No additional insured endorsement to the policy
required above shall contain any exclusion for bodily injury or property damage arising from
completed operations. The Professional shall be solely responsible for any deductible losses
under any policy required above.
(d) The certificate of insurance provided to the City shall be completed by the Professional's
insurance agent as evidence that policies providing the required coverages, conditions, and
minimum limits are in full force and effect, and shall be reviewed and approved by the City
prior to commencement of the contract. No other form of certificate shall be used. The
certificate shall identify this contract and shall provide that the coverages afforded under the
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policies shall not be canceled, terminated or materially changed until at least thirty (30) days
prior written notice has been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of
contract upon which City may immediately terminate this contract, or at its discretion City
may procure or renew any such policy or any extended reporting period thereto and may pay
any and all premiums in connection therewith, and all monies so paid by City shall be repaid
by Professional to City upon demand, or City may offset the cost of the premiums against
monies due to Professional from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently
$350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and
protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq.,
C.R.S., as from time to time amended, or otherwise available to City, its officers, or its
employees.
10.City's Insurance. The parties hereto understand that the City is a member of the Colorado
Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA
Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk
Management Department and are available to Professional for inspection during normal business
hours. City makes no representations whatsoever with respect to specific coverages offered by
CIRSA. City shall provide Professional reasonable notice of any changes in its membership or
participation in CIRSA.
11.Completeness of Agreement. It is expressly agreed that this agreement contains the entire
undertaking of the parties relevant to the subject matter thereof and there are no verbal or written
representations, agreements, warranties or promises pertaining to the project matter thereof not
expressly incorporated in this writing.
12.Notice. Any written notices as called for herein may be hand delivered or mailed by certified
mail return receipt requested to the respective persons and/or addresses listed above.
13.Non-Discrimination. No discrimination because of race, color, creed, sex, marital status,
affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion
shall be made in the employment of persons to perform services under this contract. Professional
agrees to meet all of the requirements of City's municipal code, Section 15.04.570, pertaining to non-
discrimination in employment.
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,
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color, religion, national origin, gender, physical or mental disability, age, military
status, sexual orientation, gender identity, gender expression, or marital or
familial status.
(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.
14.Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate
as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition
of this Agreement can be waived except by the written consent of the City, and forbearance or
indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant,
or condition to be performed by Professional to which the same may apply and, until complete
performance by Professional of said term, covenant or condition, the City shall be entitled to invoke
any remedy available to it under this Agreement or by law despite any such forbearance or indulgence.
15.Execution of Agreement by City. This Agreement shall be binding upon all parties hereto
and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding
anything to the contrary contained herein, this Agreement shall not be binding upon the City unless
duly executed by the City Manager of the City of Aspen (or a duly authorized official in the City
Manager’s absence) and if above $100,000, following a Motion or Resolution of the Council of the
City of Aspen authorizing the City Manager (or other duly authorized official in the City Manager’s
absence) to execute the same.
16. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(a) Professional warrants that no person or selling agency has been employed or retained
to solicit or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Professional for the purpose
of securing business.
(b) Professional agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(c) Professional represents that no official, officer, employee or representative of the
City during the term of this Agreement has or one (1) year thereafter shall have any interest,
direct or indirect, in this Agreement or the proceeds thereof, except those that may have
been disclosed at the time City Council approved the execution of this Agreement.
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(d) In addition to other remedies it may have for breach of the prohibitions against
contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right
to:
1.Cancel this Purchase Agreement without any liability by the City;
2.Debar or suspend the offending parties from being a Professional, contractor or
subcontractor under City contracts;
3.Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Professional; and
4.Recover such value from the offending parties.
17. Fund Availability. Financial obligations of the City payable after the current fiscal year
are contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. If this Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
18. General Terms.
(a)It is agreed that neither this Agreement nor any of its terms, provisions, conditions,
representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
(b)If any of the provisions of this Agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c)The parties acknowledge and understand that there are no conditions or limitations to
this understanding except those as contained herein at the time of the execution hereof and
that after execution no alteration, change or modification shall be made except upon a writing
signed by the parties.
(d)This Agreement shall be governed by the laws of the State of Colorado as from time
to time in effect. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado.
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 grounds 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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20.Successors and Assigns. This Agreement and all of the covenants hereof shall inure to the
benefit of and be binding upon the City and the Professional respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Professional shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
21.Third Parties. This Agreement does not and shall not be deemed or construed to confer upon
or grant to any third party or parties, except to parties to whom Professional 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 Professional
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
22.Attorney’s Fees. In the event that legal action is necessary to enforce any of the provisions
of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney’s
fees.
23.Waiver of Presumption. This Agreement was negotiated and reviewed through the mutual
efforts of the parties hereto and the parties agree that no construction shall be made or presumption
shall arise for or against either party based on any alleged unequal status of the parties in the
negotiation, review or drafting of the Agreement.
24.Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion.
Professional 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 Professional or
any lower tier participant was unable to certify to the statement, an explanation was attached to
the Bid and was determined by the City to be satisfactory to the City.
25.Integration and Modification. This written Agreement along with all Contract Documents
shall constitute the contract between the parties and supersedes or incorporates any prior written
and oral agreements of the parties. In addition, Professional understands that no City official or
employee, other than the Mayor and City Council acting as a body at a council meeting, has
authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the
City. Any such Agreement or modification to this Agreement must be in writing and be executed
by the parties hereto.
26.Authorized Representative. The undersigned representative of Professional, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Professional 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.Additional Provisions. In addition to those provisions set forth herein and in the Contract
Documents, the parties hereto agree as follows:The Professional in performing the Services
hereunder must comply with all applicable provisions of Colorado laws for persons with disability,
including the provisions of §§24-85-101, et seq., C.R.S., and the Rules Establishing Technology
Accessibility Standards, as established by the Office Of Information Technology pursuant to
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Section §24-85- 103(2.5) and found at 8 CCR 1501-11. Services rendered hereunder that use
information and communication technology, as the term is defined in Colorado law, including but
not limited to websites, applications, software, videos, and electronic documents must also comply
with the latest version of Level AA of the Web Content Accessibility Guidelines (WCAG),
currently version 2.1. To confirm that the information and communication technology used,
created, developed, or procured in connection with the Services hereunder meets these standards,
Professional may be required to demonstrate compliance. The Professional shall indemnify the
CITY pursuant to the Indemnification section above in relation to the Professional’s failure to
comply with §§24-85-101, et seq., C.R.S., or the Technology Accessibility Standards for
Individuals with a Disability as established by the Office of Information Technology pursuant to
Section §24-85-103(2.5).
[ ] No additional provisions are adopted.
[X] See attached Exhibit A and B.
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IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement of which shall be deemed an original on the date first written
above.
CITY OF ASPEN, COLORADO:PROFESSIONAL:
____________________________________________________________
[Signature][Signature]
By: __________________________By: ____________________________
Title: _________________________Title: ___________________________
Date: _________________________Date: ___________________________
Approved as to form:
_______________________________
City Attorney’s Office
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Chief Executive Officer
John Dougherty
20243
CORE Proposed Services in 2025 with Funding from City of Aspen
Budget
●Total BPH Services Budget Request:$750,000
●Total BuildingIQ Budget:$420,000
The table below details the proposed use of funding from City of Aspen for CORE’s Building
Performance Hub services.
Category Cost Community Benefit
Energy Advising $90,000 CORE’s Energy Concierge service is
designed to reflect that bespoke guidance
is key to community members ultimately
completing energy improvement projects.
This includes understanding a participant's
goals,determining energy assessment
needs,choosing a project to pursue,
soliciting and reviewing quotes from
contractors,and identifying incentives
available to complete the project.
Customers of the Building Performance
Hub can expect enhanced staff expertise
and advising on topics like heat pump
technology and fuel switching,improved
coordination with local contractors,custom
solutions that optimize energy performance
for a building's unique set of circumstances,
and support to access all financial
resources available to participants,
including financing options.
Energy Assessments $12,500 Commercial Energy Assessments:Perform
free Level I assessments and provide
reports.Multifamily Building Energy
Assessments:Perform free Level I
assessments and provide reports.
Individual Residential Energy Assessments:
Provide subsidized subcontracted
assessments and reports.All Buildings:
Provide subsidized subcontracted
assessments and reports for buildings that
require higher level assessments.
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Grants and Rebates $500,000 Grants will be awarded to participants to
incentivize large scale energy projects with
large greenhouse gas savings.Rebates will
be awarded to participants to incentivize
completion of energy projects that reduce
greenhouse gas emissions.Community
Priority Participants receive double rebates.
This includes individuals or organizations
that fall in any of the following categories:
workforce housing,education and childcare
providers,the energy efficiency industry,
first responders,nonprofits and their staff,
military or veterans,or households under
150%of Area Median Income (AMI).
Administrative Overhead $62,500 This funding allows CORE to operate as an
effective organization.
Community Engagement &Resource
Development
$85,000 CORE attracts new leads and re-engages past
leads and past participants in order to intake
those leads into CORE’s energy advising
services to ultimately convert the leads to
completed projects.Additionally,CORE pursues
funding from foundations,philanthropic donors,
and state and national grant programs in order
to multiply the funding from local partners.
Total BPH Services Budget Request $750,000
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The table below details CORE’s scope of work on the BuildingIQ program for 2025.
iD Category Deliverable Cost Community Benefit Timeline
1 Benchmarking Operate benchmarking
software that increases
efficiency of benchmarking,
supporting data analytics
and insights,data tracking
and compliance,
communications,and
streamlines project
management
$12,000 Enhance efficiency and
effectiveness of program
execution and generate
program cost savings over
time.
Jan-Dec
2 Benchmarking Get accurate contact info for
covered buildings,beyond
limited info on Assessor ’s
databases
$15,000 Maximize program compliance
rate
Jan-May
3 Benchmarking Work with building owners to
get account and meter
numbers,utility consent
release forms,and other
building data through site
visits.
$84,000 Reduce compliance burdens Jan-May
4 Benchmarking Collect utility data,including
the first level of data quality
checking.
$27,000 Improve data quality of
benchmarking data;50%of
those who self-report trigger
errors.If errors are not
triggered,but data is flawed,it
is usually underreported.
Jan-May
5 Benchmarking Create Portfolio Manager
accounts for first year
buildings.
$7,000 Reduce compliance burdens.Jan-May
6 Benchmarking Upload data into Portfolio
Manager in standardized
data format.
$72,000 Reduce compliance burdens
for program participants and
advance data quality objectives
Jan-May
7 Benchmarking Check data quality.
Secondary,deeper data
quality checking.
$20,000 Improve data quality and
internal/external confidence in
the program.
June-July
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8 Benchmarking Analyze EUI,WUI and other
relevant benchmarking data
to understand Aspen’s
building stock and building
performance relative to
climate goals and provide
recommendations to building
owners and the City.
$14,000 Valuable information that will
inform BPS development and
promote internal/external
support for program objectives
Jul-Sept
8 Benchmarking Provide building owner
scorecards that show key
insights from benchmarking
with customized building
recommendations.
$28,000 Enhance program transparency
and educate building owners
about potential savings through
efficiency projects.
June-Aug
9 Benchmarking Provide internal and external
annual program reports.
$7,000 Internal/external confidence in
the program.Improved
program
design/implementation.
Aug-Sept
10 Building Performance
Support
Provide support for buildings
to voluntarily improve
performance.
$50,000 Improve building performance
and reduce GHG emissions.
Jan-Dec
11 BPS Policy
Development
Participate in BPS
Stakeholder meetings
$0 Represent the input of other
stakeholders CORE engages
with.
Jan-Dec
12 Subtotal BIQ $336,000
13
14 Administrative
Overhead
9%$36,960 This funding allows CORE to
operate as an effective
organization.
Jan-Dec
15 Community
Engagement &
Resource
Development
11%$47,040 Targeted marketing to include
direct mail,dedicated website
page and in-person outreach to
connect and activate property
owners and managers in
advancing BIQ programs and
activities.Individual,corporate,
foundation and government
fundraising to complement
funding sources secured
through REMP to amplify the
scale and scope of CORE’s
Jan-Dec
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work and ensure sustainability
of CORE’s mission to meet the
outsized demand for project
funding.
16 Subtotal Admin /
Engagement /
Development
$84,000
17
18 Total BIQ Budget $420,000 Jan-Dec
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Exhibit B:FEE SCHEDULE
Services Performed By:Services Performed For:
Community Office for Resource City of Aspen,Climate Action
Office Efficiency (CORE)
129 Emma Rd,Unit B 427 Rio Grande Place,
Basalt,CO 81621 Aspen,CO 81611
Section 1,Foundational Program Support for Energy Efficiency and Building
Electrification Programs Implementation,Fee Schedule
Energy Advising $90,000
Energy Assessments $12,500
Grants and Rebates $500,000
Admin /Engagement /Development $147,500
Total:$750,000
Section 2,Building IQ Implementation,Fee Schedule
Building IQ Benchmarking
Implementation
$336,000
Admin/Engagement/Development $84,000
Total:$420,000
Invoice Procedure
Contractor shall invoice Client for $877,500 in January of 2025,and $292,500 in October
of 2025.Payment shall be received within 30 days of the invoice delivery.
Client shall pay Contractor through
ACH:
Community Office for Resource Efficiency
Alpine Bank Routing #102103407
Account #8912277087
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Or
By mail:
Community Office for Resource Efficiency
PO Box 2449
Basalt,CO 81621
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