HomeMy WebLinkAboutagenda.council.regular.20230228AGENDA
CITY COUNCIL REGULAR
MEETING
February 28, 2023
5:00 PM, City Council Chambers
427 Rio Grande Place, Aspen
I.Call to Order
II.Roll Call
III.Scheduled Public Appearances
IV.Citizens Comments & Petitions
V.Special Orders of the Day
VI.Consent Calendar
VIA.Resolution #019, Series of 2023 - Water Treatment Chemical Supply Contract: DPC
Industries, Inc
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(Time for any citizen to address Council on issues NOT scheduled for a public hearing.
Please limit your comments to 3 minutes)
a) Councilmembers' and Mayor's Comments b) Agenda Amendments c) City Manager's
Comments d) Board Reports
(These matters may be adopted together by a single motion)
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VIB.Resolution #024, Series of 2023 - Herron Park Bathroom
VIC.Resolution #029, Series of 2023 - Concrete Replacement and EV Charging Station
Install Projects
VID.Resolution #030, Series of 2023 - Rio Grande Parking Garage - Bathroom Remodel
VIE.Resolution #031, Series of 2023 - MEAN Green Energy Program
VIF Board Appointments
VIG.Draft Minutes of January 24th, 2023
VII.Notice of Call-Up
VIII.First Reading of Ordinances
VIIIA.
Ordinance #06, Series of 2023 - Amending Chapter 13.24 “Waste Reduction”
IX.Public Hearings
IXA.Resolution #025, Series of 2023 - Policy Resolution - Affordable Housing Credits
Program
Council Memo Water Treatment Chemicals_FINAL.docx
Reso #019 of 2023 for Water Treatment Chemicals.doc
2023-014_Supply Procurement Contract_DRAFT_DPC_14FEB2023.doc
Exhibit A 2023 - DPC SUPPLY.docx.pdf
230228 Council Memo Herron Bathroom.docx
230228 Reso 024 Herron Bathroom.doc
230228 Green Flush Supply Procurement.pdf
Concrete Replacement Council Memo.docx
Resolution #029 2023.doc
Attachemnet B_Map of Replacements.pdf
Attachemnet A_Contract with Excavation Services, Inc..pdf
1_Council memo_2.28.23.docx
2_Resolution_Aspen Constructors Contract.docx
3_Construction Contract.doc.pdf
4_Exhibit A_ Aspen Constructors BID.pdf
Council Memo - MEAN Green Energy Program -Final 2.21.23.docx
Exhibit B - Resolution no. 31 - Approval of Green Energy Program Agreement.doc
Exhibit A - MEAN Memorandum of Official Notice of Green Energy Program.pdf
Exhibit C - Subscription Confirmation Agreement from MEAN.pdf
Board Appointment Memo 022823.docx
cc.min.012423.docx
First Reading Memo_Chapter 13.24 Ammendments_PPRA.docx
2023 Ordinance Amending Chapter 13.24_PPRA.docx
AH Credits Policy Resolution _Staff Memo.pdf
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IXB.Resolution #026, Series of 2023 - Policy Resolution - Outdoor Lighting Standards
IXC.
Ordinance #03, Series of 2023 - 216 W. Hyman Avenue, Establishment of
Transferable Development Rights (TDRs)
IXD.Ordinance #04, Series of 2023 - Title 12 Amendments, Chapter 12.05 Organics
Waste Diversion
IXE.Ordinance #05, Series of 2023 - Aligns Aspen’s general fee schedule with the
provisions in the newly adopted building and energy codes and the new Renewable
Energy Mitigation Payment calculator tool
X.Action Items
XA.Resolution #027, Series of 2023 - Adoption of New Calculator for the Renewable
Energy Mitigation Payment (REMP) program
XI.Executive Session
AH Credits_Policy_Resolution_025_2023.docx
Exhibit A_12_12_Worksession.pdf
Lighting_PolicyResolution_Memo.pdf
Lighting_Policy_Reso_DRAFT.docx
Exhibit A - Aspen Lighting Ordinance_Community & Stakeholder Memo.pdf
Exhibit B - Aspen Lighting Ordinance_Existing Conditions Memo.pdf
216_W_Hyman_Council Memo.pdf
Ordinance 3 Series of 2023 - 216 W Hyman TDRs.pdf
ExhibitA_TDRCriteria.pdf
Memo_Second Reading_Title 12 Organics Waste Diversion - Chapter 12.05.docx
Attachment A_Ordinance #4 - Title 12 Organic Waste Diversion - Chapter 12.05
(True changes).docx
Attachment B_ Business Outreach Summary.docx
Memo_Ordinance No. 5_Second Reading .docx
Ordinance No. 5_Final Draft.docx
2_28_23_REMP_Calculator_Resolution_Memo_Final.pdf
Resolution No.27_2023_REMP_Final Draft.docx
Exhibit A REMP Calculator Screenshots.pdf
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.
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XII.Adjournment
The specific items of discussion involve the following:
1. Ongoing Litigation: The Centennial Owners’ Association, v. The City of Aspen,
et al. Case No.: 2015CV030158 and Case No 2017CA2099.
1. Legal Advice regarding the 1994 Settlement Agreement in Centennial-Aspen II
Limited Partnership, United States District Court Civil Action No. 92-B-2570.
1. ACRA Negotiations.
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MEMORANDUM
TO:Mayor and City Council
FROM:Ryan Loebach, Sr. Project Manager
THROUGH:Justin Forman, Director of Utilities
MEMO DATE:February 28th, 2023
MEETING DATE:February 28th, 2023
RE:Resolution # 019, Series of 2023 – Water Treatment Chemical
Supply Contract: DPC Industries, Inc
REQUEST OF COUNCIL:Staff requests a contract award to DPC Industries, Inc. in the
amount of $84,819.00 for the supply of water treatment chemicals for potable water
production.
PREVIOUS COUNCIL ACTION: Council has reviewed funding for this operating cost
through the 2023 budget approval process.
BACKGROUND:The City of Aspen Water department produces and distributes potable
water for over 4,000 accounts within its service area. To meet Colorado Department of
Public Health and Environment (CDPHE) Regulations, water treatment staff actively add
sodium hypochlorite and sodium silica fluoride to the water before distribution to our
customers.
The addition of sodium hypochlorite during treatment is part of the chemical disinfection
process. Chemical disinfection of water occurs when a chemical disinfectant is added to
the water and the chemical kills and inactivates pathogens within the water creating a
product safe for human consumption. The City of Aspen has selected and utilized sodium
hypochlorite based on industry best practices, safety, and performance. The Center for
Disease Control and Prevention states that:” sodium hypochlorite offers the best mix of
low cost, ease of use, safety and effectiveness…We feel that these characteristics are
the reasons why most water treatment systems in the US and Europe have been using
sodium hypochlorite for disinfecting drinking water for nearly one hundred ears.”
City staff follows CDPHE oral health unit and Safe Drinking Water Program
recommendations in the administration of the community water fluoridation program. This
program ensures the addition of sodium silica fluoride is in accordance with the latest
scientific dental and health guidelines. In 2012 City Council reiterated previous direction
to fluoridate the City’s municipal drinking water in accordance with the most current
recommendations of the EPA and US Department of Health and Human Services.
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DISCUSSION:Staff proposes utilizing supply and delivery services from DPC
Industries, Inc. to provide both sodium hypochlorite and sodium silica fluoride to the City
of Aspen.
In recommending this supplier, City staff evaluated the previous performance of DPC
Industries, Inc. and explored other regional vendors. DPC Industries was selected
based on supplier location, willingness to supply these treatment chemicals to the City,
successful safety and delivery record, and familiarity with Aspen’s climate and
geographic challenges. Staff recommends that it is in the City’s best interests to award
the contract to this vendor.
FINANCIAL/BUDGET IMPACTS: Staff anticipates purchasing typical annual quantities
of water treatment chemicals to meet the City’s water treatment goals. The proposed
contract amount is based on those quantities. Currently, an adequate operating budget
is not in place to fund the supply contract for sodium hypochlorite and sodium silica
fluoride. Staff is requesting additional funding through the 2023 Spring Supplemental
process for the budget line items shown below. The increased budget request and
annual contract amount can be attributed to rising chemical supply costs due to supply
chain issues, chemical demand outpacing chemical supply, and national inflation
pressure on material supply markets.
Projected Expenditures
Water Treatment Chemical Supply, DPC Industries $ 84,819.00
Total $ 84,819.00
Funding Currently Budgeted
Water Fund Operating Budget - Chlorine $ 42,000.00
Water Fund Operating Budget - Other Chemicals $ 30,000.00
Total $ 72,000.00
Future Request through 2023 Spring Supplemental
Water Fund Operating Budget - Chlorine $ 18,000.00
Water Fund Operating Budget - Other Chemicals $ 20,000.00
Total $ 38,000.00
ENVIRONMENTAL IMPACTS:Council approval of this water treatment chemical
supply contract allows staff to continue to use the same chemicals to produce potable
water. By utilizing existing operational practices and feed/storage equipment staff can
continue to sustainably produce potable water for the City.
ALTERNATIVES: Staff believes this is a critical project and a necessary expense to
continue to produce and distribute water that is safe for human consumption.
Alternatively, the city can choose to contract with alternative suppliers that do not have
the same successful track record of supplying water treatment chemicals to the City and
whose distribution hubs are located at distances unfeasible to maintain a reliable and
continuous water treatment chemical supply.
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RECOMMENDED ACTION:Staff requests a contract award to DPC Industries, Inc. in
the amount of $84,819.00 for the supply of water treatment chemical for potable water
production.
PROPOSED MOTION:I move to approve Resolution # 019 of 2023.
CITY MANAGER COMMENTS:
ATTACHMENTS:
A. Supply Procurement Agreement with DPC Industries, Inc.
B. Resolution # 019 of 2023
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RESOLUTION # 019
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND DPC INDUSTRIES, INC. AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract for
water treatment chemical supply, between the City of Aspen and DPC Industries,
Inc., a true and accurate copy of which is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the Water
Treatment Chemical Supply Contract, between the City of Aspen and DPC
Industries, Inc., a copy of which is annexed hereto and incorporated herein, and
does hereby authorize the City Manager to execute said agreement on behalf of the
City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 28
th day of February, 2023.
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, February 28th, 2023.
Nicole Henning, City Clerk
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Water Treatment Chemicals: Fluoride and Bleach
CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
City of Aspen Project No.: 2023-014
AGREEMENT made as of 28th day of February, in the year 2023.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Ryan Loebach
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 429-1986
And the Vendor:
DPC Industries, Inc.
c/o Tony Galyon
P.O. Box 509
Hudson, CO 80642
Phone: 877-372-7155; 303-536-4000
Summary Description of Items to be Purchased:
Exhibits appended and made a part of this Agreement:
If this Agreement requires the City to pay
an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
February 28th, 2023
Exhibit A: List of supplies, equipment, or materials to be purchased.
Total: $84,819.00
DocuSign Envelope ID: A70A27CB-AA2E-4C30-BF1A-7EB08DD03755
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The City and Vendor agree as set forth below.
1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB 500 Doolittle Drive, Aspen, Colorado 81611 [Delivery Address]
3. Contract Documents. This Agreement shall include all Contract Documents as the
same are listed in the Invitation to Bid and said Contract Document are hereby made a part of
this Agreement as if fully set out at length herein.
4. Warranties. See Exhibit A for Terms.
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be construed, or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney’s Fees. In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney’s fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
DocuSign Envelope ID: A70A27CB-AA2E-4C30-BF1A-7EB08DD03755
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11. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(A) Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B) Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C) Vendor represents that no official, officer, employee or representative of the City during
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D) In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by the City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience.
DocuSign Envelope ID: A70A27CB-AA2E-4C30-BF1A-7EB08DD03755
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14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
15. City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City
Council of the City of Aspen.
16. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap,
or religion shall be made in the employment of persons to perform under this Agreement.
Vendor agrees to meet all of the requirements of City’s municipal code, section 13-98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
17. Integration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a cou ncil
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
19. Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
DocuSign Envelope ID: A70A27CB-AA2E-4C30-BF1A-7EB08DD03755
12
IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
to be duly executed the day and year first herein written in three (3) copies, all of which, to all
intents and purposes, shall be considered as the original.
FOR THE CITY OF ASPEN:
By: __ _________________________
Aspen City Manager
_______________________________
Date
SUPPLIER:
___________________________
By:________________________________
___________________________________
Title
___________________________________
Date
DocuSign Envelope ID: A70A27CB-AA2E-4C30-BF1A-7EB08DD03755
2/17/2023 | 8:16:12 AM MST
Territory Manager
Tony Gaylon
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Exhibit A: Supply Procurement Agreement
Pricing includes delivery to 500 Doolittle Drive, Aspen, Colorado 81611.
Pricing for sodium silicofluoride is per pound but ordered in 2,000 lbs increments, i.e. forty, 50-
pound bags on a pallet. Unit pricing above reflects one pallet per order.
Pricing for bleach (sodium hypochlorite) is per gallon delivered by bulk truck or in 55 -gallon
drums.
Chemicals shall be transported in compliance with all federal, state, and local transportation
safety standards. Employees transporting chemicals must use property safety procedures and
utilize personal protective equipment while handling chemicals.
DPC Industries much maintain valid and up-to-date workmen’s compensation, automobile
liability, and commercial liability insurance and provide the City a copy of those certificates
upon acceptance of this contract.
Duration of contract shall be one-year from date indicated on top of contract.
This contract will end on 02/28/2024.
Pricing shown above is valid through 03/21/2023. Dixie Petrochemical (DPC) shall provide a 30-
day notice to the City of Aspen of any price increases or decreases, otherwise, pricing shown
above shall be valid until this contract expires. DPC shall provide proof of feedstock or other
supplier increases being charged to DPC and that DPC is passing those increases to the City and
not marking up their product prior to the price increase being accepted by the City. Acceptable
unit price increases shall range from 0-10% per quarter applied to the unit prices above.
Chemical Quantity Unit Unit Price Estimated Chemical Cost
10% Sodium Hypochlorite, Bulk 16,000 gallons 3.53$ 56,480.00$
10% Sodium Hypochlorite, 55-gal Drum 220 gallons 4.45$ 979.00$
Sodium silicofluoride 12,000 lbs 2.28$ 27,360.00$
A. Total Est. Cost 84,819.00$
DocuSign Envelope ID: A70A27CB-AA2E-4C30-BF1A-7EB08DD03755
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MEMORANDUM
TO:Mayor and City Council
FROM:Mike Tunte,Landscape Architect and Construction Manager
THROUGH:Matt Kuhn, Parks and Open Space Director
MEETING DATE:February 28, 2023
RE:Resolution #024 Series 2023: Herron Park Bathroom
REQUEST OF COUNCIL:
The Parks and Open Space Department is seeking Council approval for the procurement of a custom
prefabricated bathroom for Herron Park.
SUMMARY / BACKGROUND:
In 2021, the Parks and Open Space Department installed a new playground and site improvements at
Herron Park, and after a successful public outreach process, it was determined that a permanent
bathroom was needed to replace the current porta potty. To minimize park disruption and construction
costs, a prefabricated bathroom was chosen with a customized exterior and interior to match the Aspen
aesthetic. The vendor, Green Flush Technologies, was selected through a competitive RFP process and
has worked with the department to provide a customized prefabricated bathroom that includes two
unisex restrooms.
Herron Park Bathroom Exterior
Herron Park Bathroom Elevation and Floorplan
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DISCUSSION:
The replacement of the current porta potties with a permanent bathroom at Herron Park is a result of a
public engagement process and will greatly improve the experience for park-goers. The installation of
this new bathroom will bring benefits to the community and families who frequent the park.This capital
project anticipates a second phase procurement for the site and utility work associated with the installation
of the Herron Park bathroom.
FINANCIAL/BUDGET IMPACTS:
The purchase is part of the Parks fund (100). The procurement amount not to exceed $306,000 is within
the current budget allocation for this project of $569,250.
ENVIRONMENTAL IMPACTS:
A new bathroom at Herron Park will replace existing porta potties. Permanent bathrooms have less
environmental impacts compared to porta potties as they are connected to a sewage system, which
properly processes and treats waste, reducing the risk of water pollution and contamination. The
permanent bathroom specified is factory built with durable materials designed to withstand regular use,
reducing the need for replacements. The frequent transportation of porta potties contributes to
emissions from vehicles and the use of fuel. Overall, permanent bathrooms provide a more sustainable
and environmentally friendly solution for waste management compared to porta potties.
ALTERNATIVES
Council can suggest an alternative approach to procuring a bathroom for Herron Park.
STAFF RECOMMENDATIONS:
Parks and Open Space Staff recommends approval of the contract with Green Flush Technologies for a
prefabricated bathroom at Herron Park.
CITY MANAGER COMMENTS:
Herron Park Bathroom Interior
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RESOLUTION #024
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND GREEN FLUSH TECHNOLOGIES, 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
procurement of a customized prefabricated bathroom for Herron Park, between the
City of Aspen and Green Flush Technologies, 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 procurement of a customized prefabricated bathroom for Herron Park, between
the City of Aspen and Green Flush Technologies, 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 28
th day of February, 2023.
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, February 28, 2023.
Nicole Henning, City Clerk
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CITY OF ASPEN STANDARD FORM OF AGREEMENT
SUPPLY PROCUREMENT
City of Aspen Project No.: 2022-013
AGREEMENT made as of 8th day of February, in the year 2023.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Mike Tunte
585 Cemetery Lan
Aspen, Colorado 81611
Phone: (970) 920-5120
And the Vendor:
Green Flush Technologies, LLC
c/o Kyle Earlywine
1420 N. Columbia Ridge Way
Washougal, WA 98671
Summary Description of Items to be Purchased:
Customized prefabricated bathroom for Herron Park
Exhibits appended and made a part of this Agreement:
If this Agreement requires the City to pay
an amount of money in excess of
$50,000.00 it shall not be deemed valid
until it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date: 02/28/2023
Resolution No.:_2023-024
Exhibit A: Quote #HP01 Bathroom to be purchased.
Exhibit B: Green Flush Technologies standard terms and conditions
Total: $306,000
(Not to Exceed)
DocuSign Envelope ID: 47F55F1E-9438-4131-8285-B08341EEEA67
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The City and Vendor agree as set forth below.
1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB Herron Park - 108 Neale Ave. Aspen, CO 81611) [Delivery Address]
3. Contract Documents. This Agreement shall include all Contract Documents as the
same are listed in the Invitation to Bid and said Contract Document are hereby made a part of
this Agreement as if fully set out at length herein.
4. Warranties. Two Year
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be construed, or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney’s Fees. In the event that legal action is necessary to enforce any of the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney’s fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
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11. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(A) Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B) Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C) Vendor represents that no official, officer, employee or representative of the City during
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D) In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendor; and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by the City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience.
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14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
15. City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of $50,000.00 it shall not be deemed valid until it has been approved by the City
Council of the City of Aspen.
16. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origi n, ancestry, handicap,
or religion shall be made in the employment of persons to perform under this Agreement.
Vendor agrees to meet all of the requirements of City’s municipal code, section 13-98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
17. Integration and Modification. This written Agreement along with all Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
19. Electronic Signatures and Electronic Records This Agreement and any
amendments hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
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IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
to be duly executed the day and year first herein, of which, to all intents and purposes, shall be
considered as the original.
FOR THE CITY OF ASPEN:
By: __ _________________________
Aspen City Manager
_______________________________
Date
Approved as to form:
_______________________________
City Attorney’s Office
SUPPLIER:
___________________________
By:________________________________
___________________________________
Title
___________________________________
Date
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Kyle Earlywine
2/8/2023 | 3:58:20 PM PST
Co-Owner
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Quote #HP01
City of Aspen CO
Prefabricated Restroom
for Herron Park
2/06/2023
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Quote Per Quote #50124-8(REV. #3) by Whitley Manufacturing
Green Flush’s “Durango II” custom restroom model wood frame
constructed with a small alcove for the mechanical room door, a covered
porch, and two concrete post piers delivered to 108 Neale Ave., Aspen CO
81611 ready for operation after customer makes connection to site water,
sewer and power. The restroom comes with an empty 4' deep concrete
foundation. Exterior walls are finished with Woodtone Allura lap siding
above 4'.
Stone wainscot will be procured locally and installed on-site. Interior cabin walls are finished
with "Industrial Park" tile up to 5'6" and one wall with "Mythology" tile to 10'7". Cabin floor will be
"Industrial Park" tile with floor drains, ceilings and exposed porch will be Hardie-panel (stucco
finish). Also includes Class A Corten Corrugated roofing, one rail Corten system snow guard,
ERV ventilation system, mirrors with lighting, cove heaters, extra insulation, stainless steel baby
changing tables, automatic door locks, interior lights, exterior lights tucked in 180 degree cutoff,
windows, electric water heater, porcelain fixtures (toilets, urinals, and sinks), Dyson Air Blade
faucets/hand dryers, soap dispensers, toilets will have touchless flushometers, trash
receptacles, mop sink, occupancy indicators, and hollow metal doors. Design and rendering
services included. Crane service, on-site support, Colorado State Tags, and a two-year
warranty are included. Restroom will meet the City of Aspen Thermal Envelope requirement.
-$2,712.00
Item Price QTY Subtotal
Restroom building as described $271,176.00 1 $271,176.00
1% Discount for Direct Procurement
Total $268,464.00
Option Price
Extra faucet, toilet paper holder, and soap dispenser shipped loose $3,690.00
Add (2) accessible door openers with push plates $16,000.00
Substitute Hardie-panel (stucco finish) for cedar T&G on cabin ceilings $4,209.00
Substitute (2) Brandely verge lavatories for soap dispensers and Dyson faucets $11,970.00
Site work and sales tax are not included.
Pricing is guaranteed through 02/20/2023
This quote is based on Green Flush’s Standard Terms and Conditions (see separate attachment). The payment terms
are listed below.
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Delivery
The restroom will be delivered on a semi-truck to the installation
site or as close as the semi-truck can get to the installation site.
Green Flush Restrooms purchases carbon offsets for all travel,
shipping, and office energy.
Installation Site
108 Neale Ave. Aspen, CO 81611
Crane Rental
This quote is based on the crane having a 40' reach (center to center). There cannot be
any hanging electrical wiring near the crane. Any trees or other obstructions will need to
be addressed before the crane arrives on site. Any cost increases to Green Flush due to
needing a longer than 40’ reach or obstructions will be passed on to the customer
through a change order.
Warranty
All materials and equipment provided by Green Flush Restrooms will have a two year full
warranty beginning on the date the customer is notified the restroom is ready to ship.
Customer Milestones
Due to the recent pandemic, natural disasters, and steel tariffs; material costs will need to
be reviewed if the customer misses approval milestone dates agreed upon in a
published schedule. Green Flush Restrooms reserves the right to revise and pass along
price increases due to missed milestones.
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Durango II Floor Plan, Elevations, and Renderings
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Restroom Specifications
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Standard Terms and Conditions and Payment Terms
▪ This restroom is sold using Green Flush Standard Terms and Conditions which are sent as an
attachment with this quotation.
▪ 10% Before the start of engineered drawings and calculations for the Product, the Buyer shall
pay the Seller a deposit of 10% to cover the Seller’s costs for the preparation and approval of
engineered drawings and calculations including the costs of plan review and approval by the
State Modular Building Office.
▪ 10% Seller shall begin manufacturing the Product after receiving the approval of the plans and
specifications by the local building department and upon receipt of payment equal to an
additional 10% of the Purchase Price.
▪ 70% Prior to shipment of the finished Product from the factory, the Buyer shall pay the Seller a
sum equal to the balance owing on the Product minus 10%. The Seller shall not be required to
ship the Product until this payment has been received, or other arrangements have been
mutually agreed to.
▪ 10% or remaining balance. Within 25 calendar days of the delivery date, the Buyer shall pay the
Seller the full remaining unpaid balance of the Purchase Price. However, at that time, should the
Buyer wish to retain monies from the unpaid balance of the Purchase Price due to warranty
concerns for which the Seller is liable, the Buyer shall not be required to pay Seller said retained
monies until such time as the warrantee work is completed. Monies held for warrantee work
shall not be in excess of the actual cost of the warrantee work. The purchase and payment
terms herein shall be controlling over any other document.
*The Seller may request partial payments on a monthly basis for expenses incurred in the work of
manufacturing the Product.
**The purchase price may be adjusted by written change order, signed by both the Buyer and Seller.
Delinquent payments shall be subject to 1% interest per month.
City Testimonial
City of Pacific Grove CA, Butterfly Sanctuary Restroom
"Green Flush provided the City of Pacific Grove with a restroom for our
Monarch Sanctuary, a location where constructing a restroom would
have been difficult. The restroom that we purchased suits our needs.
The restroom is constructed with precise carpentry, looks great and
functions perfectly as designed. Their staff is pleasant to work with,
they are very responsive to questions and providing assistance
during installation. I highly recommend Green Flush and will use
them again in the future for our prefabricated restroom needs."
- Daniel Gho, City of Pacific Grove Public Works Director
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Thank You
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1
GREEN FLUSH TECHNOLOGIES, LLC
Terms and Conditions
1.Agreement. This Agreement consists of both the Contract and these Terms and Conditions as is between Green
Flush Technologies LLC (the “Seller”) and the City of Aspen Colorado (the “Buyer”).
2.Scope of Services. This Contract is for the fabrication, delivery, and installation of a Durango II model flush
restroom building as described in the attached specifications, Quote # CO HP01 (the “Product”), delivered to
108 Neale Ave, Aspen CO 81611.
3.Purchase Price & Payment Terms. The purchase price for the Product, shall be $ 268,464.00. Unless otherwise
stated, all applicable duties or federal, state or local taxes that are, or may hereafter be, applicable are separate
and not included in the Purchase Price. Before the start of engineered drawings and calculations for the Product,
the Buyer shall pay the Seller a deposit of 10% to cover the Seller’s costs for the preparation and approval of
engineered drawings and calculations including the costs of plan review and approval by the State Modular
Building Office. Seller shall begin manufacturing the Product after receiving the approval of the plans and
specifications by the local building department and upon receipt of payment equal to an additional 10% of the
Purchase Price. The Seller may request partial payments on a monthly basis for expenses incurred in the work
of manufacturing the Product. Upon notice that the Product is ready to ship, Buyer shall pay the Seller a sum
equal to 90% of the purchase price minus previous payments. The Seller shall not be required to ship the Product
until this payment has been received, or other arrangements have been mutually agreed to. Within 25 calendar
days of the delivery date, the Buyer shall pay the Seller the full remaining unpaid balance of the Purchase Price.
However, at that time, should the Buyer wish to retain monies from the unpaid balance of the Purchase Price due
to warranty concerns for which the Seller is liable, the Buyer shall not be required to pay Seller said retained
monies until such time as the warrantee work is completed. Monies held for warrantee work shall not be in
excess of the actual cost of the warrantee work. The purchase and payment terms herein shall be controlling over
any other document. The purchase price may be adjusted by written change order, signed by both the Buyer and
Seller. Delinquent payments shall be subject to 1% interest per month.
4.Bonds. If Buyer requires the Seller to carry bonds, the cost of such bonds will be paid to the Seller within 30
days of Sellers invoice(s) following the payment(s) made by the Seller to the Bonding Agent.
5.Liquidated Damages. Under no circumstances shall the Seller by required to make payment for any liquidated
damages assessed by the Buyer or assessed against the Buyer by others.
6.Cancellation; Termination. Buyer may cancel or modify the Contract prior to fabrication of Product upon written
notice to Seller and provided that Buyer has paid Seller for all reasonable charges for expenses incurred and
commitments made by the Seller up to the date of such modification or cancelation. Buyer cannot cancel or
modify Contract after Seller has started fabrication of Product without Seller’s written consent and the payment
by Buyer to Seller of all direct costs and economic damages incurred due to such cancelation or modification.
7.Force Majeure. In the event the completion of the Product under the Contract is prevented or delayed due to
weather, fire, accident, natural disaster, theft, labor strikes, material shortage, delay of any governmental agency
in issuing any required permit or certificate, or in performing inspections, litigation, or any act of God, completion
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2
of work shall be delayed until a later date that is agreed to by the parties. Under no circumstances will Seller bear
any liability for such act, the delay such act creates, or damages caused by such act.
8. Delivery and Installation. The Seller shall make reasonable accommodation to the Buyer to have access to the
restroom either in person or through electronic media to inspect the restroom before shipment. However, any
costs incurred by said accommodation(s) shall be borne by the Buyer. Seller will deliver the Product to Buyer’s
specified location. Seller shall be responsible for repairs due to any shipment or transport damage to the restroom
building provided such damage is noted on the delivery documentation given to the Buyer upon arrival and prior
to unloading the restroom from the delivery vehicle. Buyer shall be responsible for any damage to the buildings
or vaults that occurs on-site and that is the result of Buyer’s installation. Delivery shall be made by the Seller to
the installation site or to the closest location to the installation site that is accessible for the semi-trucks delivering
the product. Any costs for mobilization beyond this shall be borne by the Buyer. Buyer shall be responsible for
preparing the site for installation per the drawing provided by the Seller including but not limited to excavation,
leveling, and stabilization of receiving soils. Buyer shall also be responsible for all contracted on-site utility
connections, backfilling, final grading, landscaping, hardscaping, walkways, and site cleanup.
9. Intellectual Property. Unless otherwise agreed upon in writing prior to receipt of Contract, Seller retains the right
in perpetuity to use all Product images that are taken during construction and delivery and while the goods are in
Seller’s possession. The images may be used on Seller’s website, in marketing materials, at trade shows, entered
in industry related competitions or in any other manner as Seller decides to use such images.
10. Confidential Information. During the course of this Agreement, Buyer may gain possession of or access to Seller’s
confidential information including, but not limited to certain drawings or specifications with regard to the Product,
proprietary methods and protocols, and any and all information and know-how (collectively, the “Confidential
Information”). Buyer acknowledges and agrees that it has no claim, right, title, property or other interest of any
kind in the Confidential Information. Buyer will not make copies or give originals of any documents that are
indicated as being Confidential Information to any other persons or entities without the written permission of the
Seller, which Seller may withhold at its sole discretion.
11. Inspection. Buyer will promptly inspect the Product upon delivery and installation and will notify Seller in
writing of any nonconformity or defect within 10 days following actual installation date. Upon such notice, Seller
will cure such defect or nonconformity within a reasonable period of time and will pay for any repair costs.
However, such defect or nonconformity will not relieve Buyer of its obligation to pay Seller the remainder of the
Purchase Price, delivery, installation, taxes, duties, or other costs owed , except as noted in paragraph 3 above.
12. Express Warranty. Seller warrants for a period of one year (after notice that the product is ready to ship) that all
Products shall be free of any defects in workmanship and materials and, except as stated below, will conform to
the specifications stated or referred to in the Contract. No warranties exist beyond the specifications stated or
referenced in this Agreement. Seller will replace or repair any goods or component that are found to be defective
or nonconforming provided that Buyer gives Seller written notice of the defect or nonconformity within the
warranty period and the notice given specifies the defect or nonconformity with reasonable particularity. If
practical, Buyer will return defective or nonconforming goods or components F.O.B. to Seller’s manufacturing
facility and accept the same as repaired or the replacement F.O.B. at Seller’s installation site. Repair or
replacement shall be at Seller’s sole option. Notwithstanding the foregoing Seller may elect to terminate all of
its obligations and liability to Buyer, including the obligation to repair or replace, by refunding the purchase price
to Buyer if Seller determines that repair or replacement cost may exceed the purchase price.
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13. WARRANTIES AND REPRESENTATIONS. EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT, SELLER SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, OR DAMAGES TO
PERSONS OR PROPERTY RESULTING FROM FAILURE OR DEFECTIVE OPERATION OF THE
PRODUCT OR DELAY IN SELLER’S PERFORMANCE UNDER THIS AGREEMENT NOR SHALL
SELLER BE LIABLE FOR PUNITIVE, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND SUSTAINED FROM ANY CAUSE, INCLUDING TORT AND STRICT
LIABILITY. ALSO, SELLER SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR
MALFUNCTION RESULTING FROM BUYER’S MODIFICATION OF THE PRODUCT OR
FAILURE TO PROPERLY MAINTAIN THE PRODUCT IN ACCORDANCE WITH SELLER’S
RECOMMENDED OPERATION, MAINTENANCE, AND SERVICE GUIDELINES.
14. EXCLUSION OF IMPLIED WARRANTIES. AS A MATERIAL PART OF THE BARGAIN, ALL IMPLIED
WARRANTIES, (NOT INCLUDING EXPRESS WARRANTIES AS LISTED IN SECTION 10 AND
INCLUDING MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE), EXCEPT IMPLIED
WARRANTIES OF TITLE AND AGAINST INFRINGEMENT, ARE EXCLUDED AND BUYER
EXPRESSLY WAIVES ANY CLAIM OR REMEDY BASED THEREON.
15. Miscellaneous. This Agreement is personal to the specific parties and neither party may assign or transfer its
rights, obligations, and responsibilities under this Agreement without the express written consent of the other
party, which shall not be unreasonably withheld. This Agreement shall be given a fair and reasonable construction
in accordance with the intention of the parties and without regard to the identity of its drafter. This Agreement
sets forth the entire, integrated understanding and Agreement of the parties with respect to the independent
contractor relationship between them, incorporates all of the terms, covenants and conditions agreed to by the
parties, and is controlling. This Agreement can only be modified or amended in writing, signed by both parties.
In the event of any legal action or proceeding initiated by either party in order to enforce the Agreement or any
of its provisions, including arbitration, the non-prevailing party will pay all of the prevailing party’s reasonable
attorneys’ fees and costs incurred in connection with such action or proceeding. If any part of this Agreement is
determined by a court of competent jurisdiction to be unenforceable, all other parts of this Agreement will remain
in full force and effect. The laws of the State of Colorado will govern this Agreement, without giving effect to
the principles of conflict of law thereof. The Courts of Pitkin County shall be the venue for any dispute related
to this Agreement. In addition, each of the parties to this Agreement (a) consents to submit itself to the personal
jurisdiction of Colorado state courts in the event any dispute arises out of this Agreement, (b) agrees that it will
not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court
and (c) agrees that it will not bring any action relating to this Agreement in any other court. This Agreement may
be executed in one or more counterparts, each of whom shall be deemed an original and all of which counterparts
together will constitute one integrated agreement. Execution of this Agreement at different times and places by
the Parties will not affect its validity as long as all the parties execute a counterpart of this Agreement. In the
event of a breach of this Agreement, the non-breaching party may maintain an action for specific performance or
file for an injunction against the party who is alleged to have breached any of the terms of the Agreement. Failure
of either party to insist upon the strict performance of any of the Agreement’s terms and conditions, or failure to
exercise any rights or remedies provided herein or by law, or to notify the other party in the event of breach, will
not release the other part of any of its obligations under the Agreement, nor will any purported oral modification
or rescission of this Agreement by either party operate as a waiver of any of the Agreement’s terms. No waiver
by either party of any breach, default, or violation of any term, warranty, representation, agreement, covenant,
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right, condition, or provision hereof will constitute a waiver of any subsequent breach, default, or violation of the
same or other term, warranty, representation, agreement, covenant, right, condition, or pr ovision.
Green Flush Technologies LLC (SELLER)
Representative’s Name and Title
(Signature)
Date
_____________________________ (BUYER)
Representative’s Name and Title
(Signature)
Date
Attachment: Quote #HP01
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MEMORANDUM
TO:Mayor and Council
FROM:Jack Danneberg, PE, Project Manager III
Mike Horvath, PE, Senior Project Manager
Tim Karfs, Sustainability Programs Administrator
THROUGH:Trish Aragon, PE, City Engineer
Pete Rice, PE, Deputy City Engineer
DATE of MEMO:February 21st, 2023
MEETING DATE:February 28th, 2022
RE:Concrete Replacement and EV Charging Station Install Projects (Resolution
#029, Series of 2023)
REQUEST OF COUNCIL: Staff recommends Council approve the Concrete Replacement and EV
Charging Station Install Projects contract with Excavation Services, Inc. in the amount of $590,372.34
and other related costs of $40,000.00.
BACKGROUND: Concrete replacement is an annual city-wide multi-department series of projects
with sidewalk, trails, ADA and concrete infrastructure repairs and improvements combined into one
project to decrease city costs, maximize scheduling efficiencies, and increase interest from the local
construction industry. These capital improvements are part of an ongoing safety enhancement plan
with the goal to develop and maintain safer pedestrian corridors and drainage protection in Aspen.
This project aligns with the ADT goal to prioritize addressing aging infrastructure and assets. In 2021
this project installed over 300 ft of sidewalk, 4 ADA ramps, 500 ft of trails, 150 ft of curb and gutter,
upgraded one bus stop and repaired two stormwater inlets. In 2022 this project, updated the spring
and cooper intersection, made pedestrian improvements to the Dolinsek Park, repaired 3 storm
inlets, replaced 100 ft of damaged curb and gutter, and installed 1 new ADA ramp. This year the
Concrete Replacement Project will focus on replacing curb and gutter ahead of the Streets
Improvement Project scheduled this summer, installing an electric vehicle (EV) charging station and
maintaining critical infrastructure.
This spring/summer the Streets Improvement Project will be replacing deteriorated asphalt around
town. The City is under contract with Frontier Paving to complete this project. The curb and gutter
adjacent to the asphalt was surveyed ahead of the project and determined if replacement is
necessary. By replacing the curb and gutter before the asphalt is replaced, asphalt longevity is
improved and future patches required for curb and gutter replacement in the roadway are avoided.
Three sections of curb and gutter were identified for replacement: restaurant row (Hopkins Ave
41
between Mill and Aspen St.), Aspen Street between Cooper and Durant and Ute Ave. Please see
Attachment B for a map of replacement areas. Project managers have coordinated/scheduled the
work to limit the impact to the community and provide a completely new roadway cross section for
these roadway section once both projects are complete this year. During construction there will be
parking impacts and some pedestrian impacts. Staff will notify nearby businesses and property
owners ahead of construction.
An EV charging station is planned for installation on the West side of the Jerome on Monarch. This is
a charging location that was identified in the Electric Vehicle Public Charging Infrastructure Master
Plan. This is an important charging station because the electrical supply has capacity for a fast-
charging station. There are only two other fast charging stations in town which are located outside
CP Burger and the new City Hall. The installation of EV charging stations contributes to the ADT goal
of aligning City operations with the Aspen Sustainability Plan. This portion of the contract included
curb and gutter/sidewalk replacement, electrical infrastructure, and foundation for the charger. The
physical charger will be funded by Environmental Health through the EV Charging Stations-51544
Fund. This cost share approach was developed within the EV Charging Master Plan and will be
implemented for this charger.
An overarching goal of this project is to maintain and repair aging degraded or damaged City
infrastructure as quickly as possible, to reduce more costly capital expenditures, interruptions of
service, and extended community impacts. Therefore, the General Concrete Replacement line item
has been included to address issues that arise throughout the construction season that need
immediate action. For example, in 2022 this project repaired three stormwater inlets around town
that were damaged and degrading. By anticipating and including these smaller, emergent needs, the
City benefits by securing reduced item or unit costs, reduced mobilization costs, and gaining
economies of scale through the inclusion of this portion of the contract.
DISCUSSION:The Concrete Replacement Project was advertised for bid on January 6th, 2023. One bid
was received and opened on January 30
th, 2023.
Bids were received from one (1) Contractor as summarized below:
Excavation Services, Inc.$1,344,058.54
Excavation Services, Inc. has experience in various City infrastructure improvement projects. Staff
recommends that it is in the City’s best interests to award the final construction contract to this
vendor.
The bid came in over budget, so staff negotiated with the contractor and decreased project scope.
Originally the scope included more curb and gutter replacement around town; however, the scope
was decreased to replace only the curb and gutter adjacent to this year’sStreet Improvement Project
and the installation of a EV Charging station. Additional curb and gutter and other pressing repairs
will be replaced as necessary with the General Concrete Replacement portion of the contract.
42
The final contract price is $590,372.34 As described above, this includes Curb and Gutter
Replacement, Monarch EV Charging Station Install, and General Concrete Replacement. Staff
negotiated a decreased scope from the received bids due to overall capital improvement budget
concerns.
FINANCIAL/BUDGET IMPACTS: This is a multi-fund project to reduce the unit cost of materials. To
represent the different funding sources the financials have been separated below.
In addition to the $590,372.34for Excavation Services, Inc. the City anticipates approximately $40,000
for related Engineering expenditures. This funding will go toward other third-party services for
construction management services, CAD design services, geotechnical and materials testing, survey,
and public relations.
Engineering Expenditures
Curb and Gutter Replacement $ 429,903.18
Monarch EV Charging Station Installation $ 51,142.03
General Concrete Replacement $ 109,327.14
ENGINEERING CONTRACT TOTAL $ 590,372.34
Related Engineering Expenditures
Construction Management Services $ 5,000.00
CAD Services $ 10,000.00
Geotech and Material Testing $ 13,000.00
Survey $ 5,000.00
Public Outreach and Communications $ 7,000.00
RELATED SERVICES TOTAL $ 40,000.00
Engineering Budgeted Funding
EV Charging Stations - Installations – 2023 (000.327.81200.xxxxx.51648)$ 120,000.00
Concrete Replacement – 2023 (000.327.81200.xxxxx.51645)$ 631,000.00
TOTAL $ 751,000.00
ALTERNATIVES: The bid for this project came in above expectations, leading the project scope to be
decreased. Additional bids could be pursued but would delay the project until after the asphalt repairs
associated with the Street Improvement Project. This is not desirable because it would require
damaging the new asphalt to install new curb and gutter.
ENVIRONMENTAL IMPACT: Curb and Gutter is stormwater infrastructure that directs street drainage
on the surface to stormwater outflows and inlets. When this infrastructure is broken and degraded it
can result in an increase in pollutant loading into the river. Curb and gutter also protects the roadway
subgrade from destabilization due to stormwater infiltration. Keeping curb and gutter fully functional
can increase the longevity of our street surfaces which ultimately decreases environmental impacts
of construction.
43
The General Concrete Replacement project has funding to focus on improving pedestrian safety and
the walkability of the city. The goal of improving safety and walkability hopes to decrease vehicle trips
and subsequent greenhouse gas emissions.
The installation of a new EV charging station supports public access to charging infrastructure and
increases the likelihood of EV use. The increased use of electric vehicles contributes to city wide goals
of reducing greenhouse gas emissions and improved air quality.
PUBLIC OUTREACH: Staff will mail a fact sheet letter containing information about the Concrete
Replacement and Pedestrian Improvements Project and its construction impacts to neighbors within
300 feet approximately 10 days prior to commencement of work. Staff intends to directly
communicate with some of the most impacted neighbors prior to commencement of construction in
their area. Outreach will be increased for the restaurant row portion of the project to keep businesses
informed.
STAFF RECOMMENDATION:Staff recommends Council approve the Concrete Replacement and
Pedestrian Improvements Projects contract with Excavation Services, Inc. in the amount of
$590,372.34 and other related costs of $40,000 for related Engineering expenditures.
PROPOSED MOTION:“I move to approve Resolution No. 029, Series of 2023.”
CITY MANAGER COMMENTS:
ATTACHMENT A – Contract with Excavation Services, Inc.
ATTACHMENT B – Map of Replacements
44
RESOLUTION #029
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND EXCAVATION SERVICES, INC. AUTHORIZING THE CITY
MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen and Excavation Services Inc., a true and accurate copy
of which is attached hereto as Exhibit “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract
between the City of Aspen and Excavation Services Inc., a copy of which is
annexed hereto and incorporated herein, and does hereby authorize the City
Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 28
th day of February 2023.
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, February 28
th, 2023.
Nicole Henning, City Clerk
45
46
CONTRACT FOR CONSTRUCTION
(Short Form)
TIIIS CONTRACT, made and entered into on Fcbruary 28&,2023,by and between the
CITY OF ASPEN, Colorado, hereinafter called the *City", aod EXCAVATION
SERYICES INC., hereinafter called the "Contragtot''.
THEREFORE, in considetation of the mutual covenants and Contracts herein contained
and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledgd the parties hereto hereby agree as follows:
1. Construction of Project. Contractor agrees to fumish all labor, materials,
tools, machinery, , temporary utilities, transportation and any other facilities
needed therefor, and to complete in a good workmanlike and zubstantial manner the
Project as described in the Scope of Y/ork and/ar Proposal appended hereto as Exhibit
'A' which is incorporated herein as if fully set forth (the "'Project").
2. Plans and Specifications; Compliance with Laws. The Project is to be
constructed and completed in shict conformance withthe Scope of Work and/or Proposal
appndd hereto for the same al4novd in uniting by the parties hereto. The Projrct shall
also be constructed and completed in strict compliance with all laws" ordinances, rules,
regulations of all applicable govemmental authorities, and the City ofAspen Procurement
Code, Title 4 of the Municipal Code, including the approval requirements of Section 4-
08-040. Contractor shall apply for and obtain all required permits and licenses and shall
pay all fees therefor and all other fees required by such governmental authorities.
Staif shaii aooiv tbr anv necessarv oermits on me Loruracrors Denarr. Lonuaci:- --,
' : :-: r :iuiLitrl .
3. Payments to Contractor. In consideration of the covenants and
Contacts herein contained being performed and kept by Contractor, including the
supplying of all labor, materials and services required by this Contract, and the
construction and completion of the Project, Crty agees to pay Contractor a sum not to
exceed mVE HI]I\IDRED NINTY TIIOUSAIIID THREE HUIYDRED SEYENTY
TWO IX)LLARS AIYD THIRTY FOIIR CEI{TS ($5Lq37230 or as shown on
Exhibit oA'.
4. Commencement and Campletion. Contactor agrees to commence work
hereunder immediately rqron execution hereo{ to prosecute said work thereafter
diligently and continuously to completion, and fu any and all events to zubstantially
complete the same not later than OCTOBER Slsr ?fi23, subject to zuch delays as are
permissible under the o'Extension of Time for Completion" section of this Contract.
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5. Payment of BiIIs and Charges. Conaactor shall lmy promptly all valid bills
and charges for material, labor, machinery, equipment or any other service or facility
used ia cma€tion with or aising out of tlre P*jet, and shall aHain Friodic releases
from all subconftactors and material zuppliers srryplying labor or materials to the Project
concurrently with Contractor's delivering any payment to such subcoatractors and
material suppliers. Conftactor shall indemniff alrd hold City and City's officers,
employees, agenb, successors and assigns &ee and harmless against all expenses and
liability suffered or incurred in connection with tlre claims of any strch subcontractore or
material suppliers, including but not limited to court costs and attorney's fees resulting or
arising therefrorn; provided that Contractor shall be excused from this obligation to the
extent that City is in arrems in making the payments to Contractor. Should my liens or
claiues of Iim be fild of recortl against tk Prap*y, or *ould Conftactor reeive aotie
of any unpaid bill or chmge in connection with constuction of the Projec! Contractor
shall immediately either pay and discharge the same and cause the same to be released of
record or .shall furuish City with the proper indemnity either by title policy or by
corporate surety hnd in the amount of 15W;6 of &e amount claimed pursuant to such
lien-
6. Releases. Contractor shall, if rcqueseed by City, before beins entitled to
receive any lm5mnent due, firrnish to City all releass obtained from subconractors and
materid. srppliers and copie of all bills 1nid to zuch date, properly recsipt€d and
identified, covering work done and the materials fufflished to fhe Project and showing a*
expenditure of an amotlrrrt not less than the total of allprevious payments made hereunder
by City to Confractsr.
7. Hierarchy of Project llocumen&. This C.onftast and the Propsal or Scop
of Work appended hereto as Exhibit off xe intended to supplement one another. In
case of conflict however, this Contact shall coneol both
8. Chargesin tteWorlc ShaaldtheCity atwytimedwirgtheprragressaf
the work request any modifications, alterations or deviations in, additions tq or
omissions from this Contract or the ProposallScope of Wcrk, it shall be at liberfy to do
so, and the same shall in no way affect or make v6id this Contrac{ but the amormt thereof
shall be amortized over the rernaining term ofthis Contract and added to or deducted, as
the case may be, fronn the pa;mnents set forth ilr Paragraph 3 above by a fair and
reasonable valuation, based upon the actual cost of labor and materials. This Conkact
shall be deemed to be completed when the work is finished ir accordance with the
original Proposal or Scope of lVork as arrended or modified by zuch changes, uihatever
may b the tattrre or the exfent tkmf. The nrle ofpractice to be obserned in futfillmmt
of this paragraph shall be that, upon the demand of either Crty or Conffactor, tle
character and valuation of any or all changes, omissions or extra work shall be agreed
upon and fixed ia writing, signed by City and Con&artor, prior to performance.
9. Contr:aetor's Failure ta Perfarm. Should Confactor, atany time during
the progress of the work, refuse or fail to supply sufficient material or workmen for the
expeditious progress af said work or fail to perform any other provisions of this Contract,
City may, upon giving notice in "niting to Confiactor as provided hcrein and upon
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Contractor's failure to remedy any sueh failure within 3 days from receipt of such notice,
terminate this Contract and provide the necessary material and workmen to finish the
work and may enter upon the Prop€rty for such purpose and complete said work. The
e4perse thereof shall be deducted from the pa),ments under Paragraph 3
above, or if the total cost of tle work to City exceeds the amount of such remaining
payments, Contractor shall pay to City upon demand the amount of such excess in
addition to any and all other darrages to which City may be entitled. In the event of such
termination, City may take possession of all materials, equipment and appliances
belonging to Contractor upon or adjacent to the Property upon which said work is being
performed and may use the same in the completion of said work. Such termination shall
not prejudice or be exclusive of any other legal rights which City may have against
Contractor.
10. Extension of Time for Completion. Time is of the essence of this
Confract and Confiactor shall substantially complete the work during the time provided
for herein. However, the time &ning which Contractor is delayed in said work by (a) fie
acts of Crty or its agents or employees or those claiming under Contract with or
permission from City, or O) the acts of God which Contractor could not have reasonably
foreseen and provided against, or (c) unanticipated stormy or inclement weather which
necessarily delays the work, or (d) any strikes, boycotts or obstructive actions by
employees or labor organizations and which ae beyond the control of Contractor and
which it cannot reasonably overcome, or (e) the failure of City to make progress
payments promptly, shall be added to the time for completion of the work by a fafu and
reasonable allowance. Contractor recognizes, however, that the site of the work is in the
Rocky Mountains at a high elevation where inclement whether conditions are cofllmon.
This fact has been considered by Contractor in preparing its Proposal and or agreeing to
the Scope of Work. Furthermore, Contractor shall have the right to stop work if any
payment, including paymcnt for extra worh is not made to Canaactor as provided in this
Contraet. In the event of sueh nonpayment, Contractor may keep the job idle until all
payments then due re received.
11. Unforeseen Conditions. It is understood and agreed that Contractor,
before incurring any other expenses or purchasing any other materials for the Project
shall proceed to inspect the work site and all visible conditions and that i{ at the time of
inspection therefor, the Conffictor finds that the proposed work is at variance with the
conditions indicated by the Proposal, Scope of Work, or information supplied by City, or
should Contractor encormter physical conditions below the surface of the grormd of m
tmusual nature, ditrering materially from those ordinarily encormterd and generally
rc*agaizrd, as inherent in work of the character provided for in this Contract or inherent
in a work site located in the Rocky Mormtains, Contractor shall so notify City, and City
shall at that time have the right and option to immediately cancel and terminate this
Contract or to instruct Contractor to continue the work and add the additional amormt
attributable to such unforeseen conditions to the payments due Contractor as set forth
above.
It is agreed that in the event of any cancellation by Crty in accordance with this section,
Contractor shall be paid the actual costs of the work done prior to th€ time of
cancellation. In computing sr,h costs, building permit fees, insrmce and such financing
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and title chmges as are not refimdable shall be included; provided that supervision time,
office overhead and profit shall notbe included in such costs to be refunded to Conaactor
by reason of zuch cmcellation.
12. Acceptance by City. No payment hereunder nor occupancy of said
improvements or any part thereof shall be construed as an acceptance of any work done
up to the time of such payment or occupancy, but the entire work is to be subject to the
inspection and approval of City at the time when Contractor notifies Cig that the Project
has been completed.
13. Notice of Completion; Contraetor's Release. City agrees to sigu and file of
record within five (5) days after the substmtial completion md acceptance of the Project
a Notice of Completion- If City fails to so rword the Notice of Completion wi&in said
five (5) day period, City hereby appoints Contractor as City's agent to srgn and record
such Notice of Completion on City's behalf. This agency is irrevocable and is an agency
coupled with an interest. Contractor agrees upon receipt of final payment to release the
Project and property from any and ail claims that may have accrued against the same by
reason of said construction. If Contractor faithfutly performs the obligations of this
Contract on its part to be performed, it shall have the right to refuse to permit occupancy
of any structures by Crty or Cit5r's assignees or agents trntil the Notice of Completion has
been recorded and Contractor has received the paymenL if any, due herermder at
completion of coasffuction, less zuch amounts as ruly be retaind pursrailt to mutual
Conhact of City and Contactor under the provisions ofParagraph 3 above.
14. Indemnification- Professional agrees to indemnify aod hold harrnless the
City, its officers, employees, insurers, and self-insurance pool, from md agains all liability,
claims, and demands, on account of u$ury, loss, or damagq including without limitation
claims arising &om bodily irfury, Frsonal injury, sickness, disease, dea& property loss or
damage, or any other loss of any kind whatsoever, ulhich arise out of or are io aoy manner
connected with this contract to the e)*mt and for an amount represented by the degre or
percentage such injrry, loss, ol damagc is caused in whole or in part by, o. is claimed to be
causd in uible or inpat by, the wrongful act, omission, error, professional errcr, mistakg
negligence, or ottrer fault of the Professional, my subconbactor of the Professional, or any
officer, represeirtativg or agent of the Professional or of any subconaactor of the
Professional, or u&ich alises out of any workmen's compensdion claim of any employee of
the Professional ar of any errployee of any subcontractor of the Professional. The
Professional agrees to investigatg handle, respond to, and to provide defense for and defend
against, any such liability, claims or demands at the sole expense of the Ptofessionaf or at
the opion of fte City, agrees to Fy the Clty or reimburse the Crty for fu defense costs
incurred by the City in connection with, my such liability, claims, or demands. If it is
determined by the final judgment of a corrt of competent jrrisdiction frat srrch injury, loss,
or damage was caused in whole or in part by the act, omission" or other fault ofthe City, its
ofEcers, or its employees, the Ci5, stratt reimburse the Professional for the portion of the
judgment afiributable to such act, omission, or other fault of the City, ib officers, or
employees.
15. Insurance.
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a. The Contactor agrees to procure and maintaiq at its ornm exllense, apolicy
or policies of insurance sufficient to insure against atl liabilityn claimso demands" and other
obligaticns assumod by tk Contracto'rpursuant to fu t€rms of&is Contrast. Such insurmce
shall be in addition to any other insurmce requirements imposed by this contract or by law.
The Contractor shall not be relieved of any liability, slnims, demands, or other obligations
assumed pursuant to the terms ofthis Contact by reason of its failrre to procune or maintain
insurance, or by reason of its failure to procure or maintain insurance in zufficient amounts,
duration, ortypes.
b. Contractor shall procure and maintaiq and shall cause any srbcontractor of
the Contractor to procrre and maintaiq the minimrm insurance coverages listed in the
Supplemmtal Conditions. If the Srpplmental Conditions do rct set forth minimurn
insurance coverage, tlrcn t?rc minimum coverage shall be as set forth below. Such coverage
shall be procured and malntarned with forms and insurance acceptable to City. All coverage
shall be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Contractor pursuant to the terms of this Contracl In the case of
any elaims-made policy, the necessary re&oastive ddes and extendedreporting periods shall
be proctrred to maintain such continuous coverage.
l. Worbrun's Conpensdton insurarce to cover obligations imposed by
applicable laws for any employee €ngaged in the performance of work under this
contracq and Emf,olters' Iiabil@ insurane with minimum limits of FTVE
HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FTVE
HLTNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and
FIVE HUNDRED THOUSAND DOLLARS ($500,0m-00) disease - each
employee. Evidence of qualified self-insured stdus may be zubstitrtred for the
Workmert's Compensation requirements of &is
2. Commercial General Liabtlity insurance with minimum combined
sirgle limits of ONE MILLION DOLLARS ($1,(m0,fi)0-ffi) each occumence and
ONE MILLION DOLLARS ($1,(m0,(n0.S) ager%de. Tk policy shall be
applicable to all premises and operations. The policy shall include coverage for
bodily injury, broad form property darnage (inclurling completed operations),
prsonal i"j"ry (including cov€mge for conhactual and employee acts), blanket
contractual, independent conaactors, products, and completed operations. The policy
shall inchde coverage for explosion, collapse, and undergrormd hazards. The policy
shall contain a severability of interests provision.
3. Cotnprehensive Automobile Liability insurance with minimum
combined single limits for bodily rqiury and property demage of not less than ONE
MILLION IALLARS (Sl,(m,fi)0.fi)) reh oocurrence d ONE MILLION
DOLLARS ($1,(n0,000.00) aggregate with respect to each Contracto/s oumed
hired and non-ornnred vehicles assigned to or used in performance of the services.
The policy shall contain a severability of interests provision, Iffhe Confiactor has no
owned automobiles, the requirements of this Section 5.4.2.3 shall tre met by each
of the Contractor prroviding services to the City under this contrct.
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c- Except for any Contractor Liability insrance that may be required, the
policy or policies required above shall be endorsed to include the City of Aspen and the City
of Aspen's officers and employres as dditional inswds. Every policy rquired above shall
be Fimary instrrance, and any insurance carried by the City of Aspeq its officers or
employees, or carried by or provided through any insurance pool of the City of Aspen, shall
be excess and not conuibutory insurance to thd provided by Conaactor. No additional
insurd e,ndorsement to the policy rcquired above shall contain any exclusion for bodily
injury orproperty damage aising from completed operations. The Conaacbr shall be solely
responsible for any deductible losses under any pohcy required above.
d. The cstificate of insurance provided to the City ofAspen shall be completed
by the Contacsot's insurance agent as evidence that policies previding the required
coverage, cooditions, md minimum limits are in fuIl ferce and effet, ffid shall be reviewd
and approved by the City of Aspen prior to commencement of the contract. No other form
of certificate shall be used. The certrficate shall identi& this contract and shall provide that
the coverage afforded rmder the policies shall not be cmcele4 terminaed or materially
changed until at leasl- tW 6A.l d4vs prior uritten notice has been given to the City of
Aspen.
e.
clauses:
In addition" these Certificates of Insrance shall contain the following
Underuniters and issuers shall have no right of,recovery or subrogation against the
City of Aspen, it being the intention of the parties that the insurance policies so
effected shall protect all partim and be primary coverage for any and all losses
covered by the abovedescribed insurance. Tb the extent that the Crty's in$re(s)
may become liable for secondry or excess coyerage, the City's underuiriters and
insurers shall have no tight of recovery or zubrogation againstthe Contractor.
The insurance companies iszuing &e policy or policies shall have no recourse
against the Cilr of Aspen for payment of any premiurns or for assessments under
any form ofpolicy.
Any and all deductibles in the above-described irsurance policies shall be assumed
by and be for the amount of, and at &e sole risk ofthe Proposer.
Location of operations shall be: "All operations and locations at which work in
connection withthe referenced project is done."
Certificates of Insurance for all renewal policies shall be delive,red to the Architect at
least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the
expiration date of this Contract orthereafter.
e. Failure on the part of the Contrastor to procure or maintain policies
providing the required coverage, conditions, and minimum limits shall constitute a material
breach of contract upon uihich Crty may immdirely t€rminde this contract, or d its
discretion City may procure or renew any such policy or any extendd repo*ing period
thereto and may pay any and all in connection therewith- All moneys so paid by
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City shall be repaid by Contactor to City upon demand, or City may offset the cost of the
premirrms against moneys due to Contractor &om City.
f. City reserves the right to request and receive a certified copy of any policy
and any endorsement thereto.
16. Damage or Destruction. If the Project is deshoyed or damaged by any
accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft or
vandalism, any work done by Contractor in rebuilding or restoring the work shall be paid
for by Crsr as extra work under Paragraph 8 abcve. I{ however, the estimated cost of
replacement of the work already completed by Contractor exceeds twenty QU/o) percent
of the insud sum set forth in Paragraph 14 above, City shall have the option to cancel
this Contract an4 in such event, Conffactor shall be paid the reasonable cost, ineluding
net profit to Contractor in the amount of ten (lUW percent of all work performed by
Contractor before such cancellation.
17. Notices. Any notice which ary party is required or may desire to give to any
other party shall be in writing and may be personally delivered or given or made by
United States mail addressed as follows:
To City:
City of Aspen
427 No Grande Place
Aspen, Colorado 81611
To Conhactor:
subject to the right of either pafiy to designate a different address for itself by notice
similarly given. Any notice so given, delivered or made by United States mail, strall be
deemed to have been given the same day as transmitted by telecopier or delivered
persondly, one day after consignment to oveirright courier service such as Federal
Express, or two days after the deposit in the United States marl as registered or certified
matter, addressed as above provided, with postage thereon firlly prepaid.
lE. Inspections; Warranties.
(a) Conftactor shall conduct an inspection of the Project prior to final acceptance
of the work with City.
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{b} Contractor shall schedule and cause to be performed all corrective activities
necessitated as a result of any deficiencies noted on the final inqlection prior to
accqrtance. The ccsts of material andlor tabor iilctrred in connection with such
corrective activities shall not be reimbursed or otherwise paid to Contractor.
(c) Conftactor shatl obtaiq at City's sxtr)ense, third party waranty confiacts (to be
entered into by City).
19. Licensuro of Contractor. Coffiractor hereby represents and warrants to
City that Contractot is duly lieensed as a genetal contraetor in the State of Colorado, and
if applicable, in the Cormty ofPitkir-
20" Independent Contractar. It is e4pressly and mderseood by
the parties that nothing in this Contact shall result in, or be constued as establishing m
employmeut relationship. The Contactor shall be, ard shall perfomr as, arr independent the
Contac[or who agrees to use his best effo*s to p,rovide *re S/ork on behalf of the City. No
agemt" employe, or servant of &e Coa&actor shall b, or shall b deemed to be, the
employee, ageut or servant of the Crry. fhe City is interested oaly in the results obtaineel
under the Contact Documents. The manner nnd means of conducting the Work me rmder
the sole control of &e Conkactar. None of &e beuefits pvided by the City to its employees
inchding, br$ not limited to, workeds compexlsdion insurance ad rmemployment
insumnce, ue available from dre Cfu to the employeeq agents or rervmts ofthe Contractor.
The Contractor shall be solely and entirely responsible for iB acts and for the acts of the
Contractot's agents, employees, servants atrd subcontactors during the performance of the
Contact.
Tm COIYTRACTO& AS AI\i n{DEPENDENT CONTRACTO& SIIAD NOT BE
EI{TITI,EI} TO WORKERS' COMPENSATTON BEIIETTTS ATID SHALL BE
OBLIGATEI} TO PAY FEDERAL AI\{D STATE INCOME TAX ON A}IY MONEYS
EARFTED PI}RSUANT TO THE CONTRACT.
21. Assignment This Conhct is for the personal services of Contractor.
Contractor shall not transfer or assign this Contract or its rights and responsibilities under
this Contract nor subcontact to others its rights and responsibilities under this Contracf
and any attempt ttr do so shall be void and constitub a material breach of this Conaact.
22. Successors and Assigns. Subject to paragraph 22, abve, this Contact
shall be binding on, and shall inure to the benefit of, City and Contractor and their
respective $rccessols and assigns.
23. Entire Contract This Contract contaias the entire Contract between City
and Contractor respecting the matters set forth herein and supersedes all prior Contracts
between City aad Contractor respecting such matters.
U.'lYeiver*. No waiver by Ctf or Coasactor ofmy defaultby the o&eror
of any event, circumstance or condition permitting either to terminate this Coatract shall
constitute a waivet of any other default or other such event, cfucumstance or condition,
whether of the same or of any other ilature or type md uðer corcurre,llt or
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succeeding; and no failure or delay by either City or C.ontractor to exercise any right
arisrng by reason of any default by the other shall prevent the exercise of such right while
the dsfaelting party conti*ues i* default, rnd no waiver cf my defuilt qhall operate as a
waiver of any other default or as a modtfrcation of&is Contract.
25. Remedies Non-Exclu*ive- No remedy conferred on eit"her party to this
Contract shall be exclusive of any other remedy herein or by law provided or permitted
buteach shall k cumulative and shall be in additicn to every otherremedy.
26. Governing Law. This Contraet shall be govemed by, and construed in
accordance with the laws of the State of Colorado. Venue for aay action d law or equity
shall be Pitkin Cormty.
27. Attomeys' F'ees. If either party to this Cantract shall institute any action
or proceeding to enforce aily right, remedy or provision contained in this Contact, ths
prevailing party in such action shall be entitled to receive its afforneys' fees in connection
with such actioa &om the nan-prevailiag party.
28. Severability. Any provision in this Contract whieh is held to be
inoperative, tmenforceable or invalid shall h inoprativg rmenforceable or invalid
without affecting the rcmaining provisionq and to this end the provisions ofthis Contact
are declaredto be severable.
29. Nondilcrimftration Drlriry the performance of this Contract, the
Corfractor agrees as follows: The Contractor will not disffiminate against any employee or
ryplicant for employment bwaus of race, color, religion, s& aational origia age, maritatr
status, sexual orientation, being handicappe{ a disadvantaged person: or a disabled or
Vieturam era veteran. The Contractor will take affirrrative action to insure that applioants
re employed, and that employees are esdsd during witbut regrd to their
race, color, religo*, selL Bational origin, s6x, age, sexual orientdion, handicEped, a
disadva&ged Frson, or a disabled or Vietnm e,ra veteran. Such rction shall include, hd
aot be limited to, the following: employment, upgrading demotion or trarsfeq recndtue{rt
or recruihent advertising; layoff or tsmination; rates of pay or other forrns of
compensation; and selection for ffiining; including appmticeship. The Contractor agrees to
pst in conryicuous places, available to employes ad ryplicanm for employment aotices
to be provided setting forth the provisions of this nondiscriminalion clause.
3$. Prohibited Interest No member, officer, or employee of the City of
Aspen, Pitkin Comty or the Tolrm of Snorrumass Village shall have any interest direct or
idM, in this Contrrct u the pmds ikmf.
31. Warranties Against Contingent Fees, Grafuities, Kickbacks and
Confiiet oflaterest:
a* The Contraclor warrdr*s tlrat no persori or relling agsncy has been
or retained to solicit or secure this Contact upon a Contract or understanding for a
commissioq percentagg brckerage, or contingency fee, excepting bona fide employes or
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bona fide esablished commercial or selling agerc.ies maintai*ed by the Contractor for the
purpose of securing business.
b. The Contractor agrees not to glve any employee or former employee of the
City a grafuity or aay offer of emploSnnent in connection with any decision, approval,
disryproyal, mommendation, prelxmtion of any part of a program rquirement or a
purchase reque,S, influencing the content of my specification or lxocurement standar{
rendering of advice, investigdion, arxiliting, or in any other advisory capacity in any
proc.eeding or application, request for ruling, determination, claim or contoversy, or other
particularmatter, pertaining to this Coraactorto any solicitdion orpropoml trerefor
c. It shall be a material breh of tk Cotrtret for ay paymmt gratuity, or
offer of employment tfihr.mrdre by or on belralf of a Subcontractor under a contact to the
prime Contractor or higher tier Subcontractor or any person associated therewith, as an
inducement for the arnrard of a Subconhact or order. The Confiactor is prohibited from
inducing by my means, any person employed under this Contract to give qp any part of the
compensdion to urhich b/she is o&erwise entitled- The Conffic'tor shall comply wift all
applicable local, state and federal "anti-kickbac.k" stahrtes or regulations.
3L Payments Subiect to Arnual Apprapriations If tLe conffict awmded
extends beyond the caleirdar yeat" no&ing herein shall tre conskued as an obligation by the
City beyord any amouds t}ertmery h, &omtime to time, appmopriatd by the City on an
annual basis. It is uoder$ood that payment under any conftact is conditianal upon annual
approplixron of fixrds by said body and that before services, the
Conaactor, if it so rquesfs, will be advised as to &e sitatus of ftnds appropriated for
rervices or materials and shall not be obligatd to provide services or mfferials for which
fids have not been rypropri*e,
33. Illeeal Alicns - CRS &17.5-101 & 24-76.5-101.
a Ptrpore. ftiring the 2006 Colorado legislative sssian, the Legislature
passed House BiIIs 0G1343 (subsequently amended by HB A74A73) and06fiZ3
that added new statutes relating to the employment of and cantracting with illegal
aliens. These new laws prohibit all sate agencies and politi€al suMivisions,
including the City of Aspen, from knowingly hiring an illegal alien to perform
work under a contraet, or to knowingly contract with a subcontractor who
knowingly hires with an illegal alien to perform work uuder the conkact. The new
laws also require that all contracts for services include certain specific language as
set forth in the statutes. The following terms and conditions have been designed to
comply with ths requirements ef&is new law.
b. Definitions. The following tsnns are defined in the new law and by tlis
reference arc incorporated hereia and in any coffiact for services entered into
withthe City ofAspeu
b. Definidons. The following terms are defined in the new law and by this
referemce are incorporated herein and in any conffict for services entered into
withthe City of Aspen.
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"Basie Pilot Program" means the basic pilot employment verification
prcgram created in Public Law 208, 104th Congress, as amended, and expanded
in Pr*lic Law 156, 108th Congress, as amended, tha* is admfui$terd by th€
United States Department of Homeland Security"
*Public Contact for Services" mrars this Agreement.
66*{,*ic€s" means the furaishing of labor, time, or efrcrt by a Coaaactor ar
a subconfractor not involving the delivery of a specific end product other than
reports that are metely incidental to the tequired performance.
c.By signing this document Confiactor certifies and represents that at ihis
time:
(i) Contractor does not employ or conaact with an illegal
alien; and
(ii) Con*actor has participated or attempted to participate in the Basic
Pilot Program in otder to vedfu that it does not employ illegal aliens.
d. Contractorherebycertifies&at:
(i) Contractor shall not knowingly employ or cor*ract aew ernployees
without confirming the employment eligibility of all such employees hired
for employment in the United States under the Public Contract for
Services-
(ii) Contractor shall not enter into a contract with a subcontractor that
fails to eonfirm to the Contractor that the zubconfiactor shall not
knowingly hire new employeffi withorf ennfirming their employment
eligibility fcr employment ia the United States rmder &e Public Contract
for Services.
(iii) Contractor has verified or haq attempted to verifu through
participation in tbe Federal Basic Pilot Program that Conftactor does aot
employ aay new employees who are not eligible for employment in the
Uilited States; and if Contr:actor has not been accepted into the Federal
Basic Pilot Program prior to entering into the Public Contract for Services,
Contractor sha1l forthwith apply to pmticipate in the Federal Basic Pilot
Program and shall in writing verifr such application within five (5] days
of the dde of the Public Contract. Contractor shall cortinue to ryply to
participate in the Federal Basic Pilot Program and shall in writing verify
same every thrre {3} calendar mon&s &ereafter, until Contractor is
acs€pted orthepublie contrad for serviees has been conaplete{ whiehever
is earlier. The requiremen* of this sestion shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
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(iv) Contractor shall not use the Basic Pilot Prograrn procedures to
undertake pre-employment screening of job applicants while the Public
Contract for Services is being performed.
(") If Contractor obtains actual knowledge that a subcontractor
performing work under the Public Contract for Services knowingly
employs or contracts with a new empioyee who is an illegal alien,
Contractor shall:
(1) Notify such subcontractor and the City of Aspen
within three days that Contractor has actual knowledge that the
subcontractor has newly employed or contracted with an illegal
alien; and
@ Terminate the subcontract with the subcontactor if
within three days of receiving the notice required pursuant to this
section the subcontractor does not cease employing or contracting
with the new employee who is an illegal alien; except that
Contractor shall not terminate the Public Contract for Services
with the subcontractor if during such three days the subcontractor
provides information to estabtish that the suhontractor has not
knowingly employed or contracted with an illegal alien.
(vi) Contractor shall comply with any reasonable request by the
Colorado Departrnent of La.bor and Employment made in the course of an
investigation that the Colorado DeparEnent of Labor and Employment
undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
(vii) If Contractor violates any provision of the Public Confact for
Services pertaining to the duties impsed by Subsection 8-17.5-102,
C.R.S. the City of Aspen may terminate the Public Contract for Services.
If &e Public Contract for Services is so terminated, C-ontractor shall be
liable for actual and consequential damages to the City of Aspen arisins
out cf Contractor's violation of Subsection 8-17.5-rc2, C.R.S.
(ix) If Contractor operates as a sole proprietor, Contractor hereby
swears or affirms under penalty of perjury that the Contractor (l) is a
citizen of the United States or otherwise lawfully present in the United
States pursuant to federal law, (2) shall comply with the provisions of
CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of
identification required by CRS 24-76.5-rc3 prior to the effective date of
this Agreement.
34. Electronic Sisnatures 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
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same counterpart. Furtherrrorg each Party consents to the use of electronic signatures by
either Party. The Scope of Worlq and any other documents requiring a signature
heretmder, may be sigped eletronically in the manner qseed to by the Prties. 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 reoord was used in its fonnation.
The Parties agree not to object to the admissibility of the Agreement in the form of an
eleckonic record, or a pE)er copy of an electronic documents, or a paper copy of a
docume,nt bearing an electronic signature, on the ground that it is an electronic record or
electronic signature or that it is not in its original form or is not an original.
IN WITNESS WHEREOB the parties agree hereto have executed this Contract for
Construction on the dat€ flrst above unitten.
ATTESTED BY:CITY OF ASPEN, COLORADO
Title:
APPROVED AS TO FORM:
By:
City Attomey
ATTESTED BY:CONTRACTOR:
By:
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Note: Certification of Incorporation shall be executed if Contractor is a Corpomtion. If a
partnership" the Conhact shall tre sigaed by a Principal and indicate title"
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CERTIFICATE OF INCORPORATION
{To he cornpleted if Contractor is a Corporation}
STATE OF
} SS-
COUNTY OF
on this 2t d^v
me appeared
, /,^xi
elor 4rbrilanl
personally known, who,by me first duly sworn, did say
of
the seal to said instrument the corporate seal of said corporation, and
that said instrument uras signed and sealed in behalf of said corporation by
authority of its board of directors, and said deponent acknowledged said
instrument to be the free ac{ and deed of said corporation,
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate
firct above written.
Notary Public
lo, ru 8lbzb Address
bty commission expires:
3'rb AI,rnn,
. ,20, 23 , before
to me
that s/he is
and that
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/4 1013/ ,-/--
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Page 1 of 2
MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Jen Phelan, Development Manager
THROUGH:Scott Miller, Public Works Director
MEETING DATE:February 28, 2022
RE:Resolution No. 30 (Series of 2023), Rio Grande Parking Garage -bathroom
remodel contract
REQUEST OF COUNCIL:Staff is requesting approval of
Resolution No. 30 (Series of 2023)and the associated
contract with Aspen Constructors, Inc. for construction
services related to the Rio Grande parking garage
public bathroom remodel.
SUMMARY AND BACKGROUND: The city is remodeling
the two public bathrooms in the parking garage to
meet accessibility standards. To meet the
requirements, a urinal will be removed from the mens
toilet room and a sink in the womens toilet room, along
with some reconfiguration of fixtures. New wall tile
and flooring will be installed and all fixtures and fittings will be replaced. Improved lighting will also be
installed.
Figure 1: Parking garage entry
Figure 2: Floor Plans
62
Page 2 of 2
DISCUSSION:Staff issued an RFP in December2022,per the City’s procurement procedures via the Bidnet
Direct website and received three bids by the closing date of January 31, 2023. One bid was submitted
solely for the demolition of the bathrooms and did not include the entire project scope. The remaining
two bids were for the entire scope of work. After an initial review of the bids for completeness, staff felt
comfortable formally evaluating the two remaining bids.
A review committee included staff from the Asset and Parking Departments. The committee’s
recommended vendor is Aspen Constructors, Inc., a valley firm that has collaborated with the city on other
projects such as two separate interior remodels of portions of the Wheeler Opera House and has worked
on private projects within Aspen.
The proposal Includes demolition/removal of all tile, partitions and fixtures, framing for the new layout,
plumbing and electrical rough-in/trim outs as needed, door replacement, install of new tile and flooring,
install of accessories and hardware, and required inspections. The work is estimated to take 2.5 months,
with time built into the schedule for potential delays (supply chain or scheduling). It is anticipated that
the bathrooms will be online prior to Memorial Day weekend. Total cost of the contract is $150,772.06.
FINANCIAL IMPACTS: The lifetime budget for this project is $150,000.00 and staff has spent $3,000.00 to
date on development of architectural plans and digitizing the original parking garage plan set. With a bid
that is slightly higher than the overall budget, the Parking department will be requesting a spring
supplemental of up to $25,000.00 to cover a small portion of the construction budget, permit fees owed
to the building department, and provision of a contingency budget for the project.
ENVIRONMENTAL IMPACTS: The design includes more efficient lighting within the bathrooms.There will
be some materials related to demolition that will be taken to the landfill.
RECOMMENDATION: Based on the local experience of the construction team and ability to meet the city’s
deadline for reopening the bathrooms, Staff recommends approval of the Aspen Constructors, Inc.
contract.
CITY MANAGER COMMENTS:_____________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
EXHIBITS:
Attachment A: Aspen Constructors contract with Bid
63
Resolution 30-2023
437 Rio Grande Place, construction contract
Page 1 of 1
RESOLUTION NO. 30
SERIES OF 2023
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING A
CONTRACT FOR 437 RIO GRANDE PLACE – RIO GRANDE PARKING
GARAGE BATHROOMS REMODEL BETWEEN THE CITY OF ASPEN AND
ASPEN CONSTRUCTORS INC., AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN
COLORADO
WHEREAS,there has been submitted to the City Council an agreement between
the City Council (the “Owner”) and Aspen Constructors Inc. (the “Contractor”), a true and
accurate copy of which is attached hereto as “Exhibit A”, and,
WHERAS, City Council considered and approved the agreement at a regular
council meeting on February 28, 2023;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN AS FOLLOWS:
That the City Council of the City of Aspen hereby approves the agreement between Owner
and Contractor, 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 February 2023.
______________________________________
Torre, Mayor
ATTEST:APPROVED AS TO FORM:
_______________________________________________
Nicole Henning,City Clerk James R True, City Attorney
64
________________________________________________________________________
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CONTRACT FOR CONSTRUCTION
(Short Form) 2023-0002
THIS CONTRACT, made and entered into on February 14 2023, by and between the
CITY OF ASPEN, Colorado, hereinafter called the “City”, and Aspen Constructors Inc
, hereinafter called the “Contractor”.
THEREFORE, in consideration of the mutual covenants and Contracts herein contained,
and for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Construction of Project. Contractor agrees to furnish all labor, materials,
tools, machinery, equipment, temporary utilities, transportation and any other facilities
needed therefor, and to complete in a good, workmanlike and substantial manner the
Project as described in the Scope of Work and/or Proposal appended hereto as Exhibit
“A” which is incorporated herein as if fully set forth (the “Project”). Additionally,
Contractor will construct project to the architectural plan set included in the issued
Request for Proposals (Project #2023-002), print date 10/21/22, Menendez Architects.
2. Plans and Specifications; Compliance with Laws. The Project is to be
constructed and completed in strict conformance with the Scope of Work and/or Proposal
appended hereto for the same approved in writing by the parties hereto. The ‘Basic
Requirements’ appended hereto as Exhibit B, shall be adhered to in executing the
construction work and administrative tasks associated with the Project. The Project shall
also be constructed and completed in strict compliance with all laws, ordinances, rules,
regulations of all applicable governmental authorities, and the City of Aspen Procurement
Code, Title 4 of the Municipal Code, including the approval requirements of Section 4-
08-040. Contractor shall apply for and obtain all required permits and licenses and shall
pay all fees therefor and all other fees required by such governmental authorities.
3. Payments to Contractor. In consideration of the covenants and Contracts
herein contained being performed and kept by Contractor, including the supplying of all
labor, materials and services required by this Contract, and the construction and
completion of the Project, City agrees to pay Contractor a sum not to exceed One
hundred fifty thousand, seven hundred seventy-two dollars and six cents.
($150,772.06) DOLLARS or as shown on Exhibit “A”.
4. Commencement and Completion. Contractor agrees to commence work
hereunder immediately upon execution hereof, to prosecute said work thereafter diligently
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and continuously to completion, and in any and all events to substantially complete the
same not later than May 2023, subject to such delays as are permissible under the
“Extension of Time for Completion” section of this Contract.
5. Payment of Bills and Charges. Contractor shall pay promptly all valid bills
and charges for material, labor, machinery, equipment or any other service or facility used
in connection with or arising out of the Project, and shall obtain periodic releases from all
subcontractors and material suppliers supplying labor or materials to the Project
concurrently with Contractor's delivering any payment to such subcontractors and
material suppliers. Contractor shall indemnify and hold City and City's officers,
employees, agents, successors and assigns free and harmless against all expenses and
liability suffered or incurred in connection with the claims of any such subcontractors or
material suppliers, including but not limited to court costs and attorney's fees resulting or
arising therefrom; provided that Contractor shall be excused from this obligation to the
extent that City is in arrears in making the payments to Contractor. Should any liens or
claims of lien be filed of record against the Property, or should Contractor receive notice
of any unpaid bill or charge in connection with construction of the Project, Contractor
shall immediately either pay and discharge the same and cause the same to be released of
record, or shall furnish City with the proper indemnity either by title policy or by
corporate surety bond in the amount of 150% of the amount claimed pursuant to such
lien.
6. Releases. Contractor shall, if requested by City, before being entitled to
receive any payment due, furnish to City all releases obtained from subcontractors and
material suppliers and copies of all bills paid to such date, properly receipted and
identified, covering work done and the materials furnished to the Project and showing an
expenditure of an amount not less than the total of all previous payments made hereunder
by City to Contractor.
7. Hierarchy of Project Documents. This Contract and the Proposal or Scope
of Work appended hereto as Exhibit “A” are intended to supplement one another. In
case of conflict, however, this Contract shall control both.
8. Changes in the Work. Should the City at any time during the progress of
the work request any modifications, alterations or deviations in, additions to, or omissions
from this Contract or the Proposal/Scope of Work, it shall be at liberty to do so, and the
same shall in no way affect or make void this Contract; but the amount thereof shall be
amortized over the remaining term of this Contract and added to or deducted, as the case
may be, from the payments set forth in Paragraph 3 above by a fair and reasonable
valuation, based upon the actual cost of labor and materials. This Contract shall be
deemed to be completed when the work is finished in accordance with the original
Proposal or Scope of Work as amended or modified by such changes, whatever may be
the nature or the extent thereof. The rule of practice to be observed in fulfillment of this
paragraph shall be that, upon the demand of either City or Contractor, the character and
valuation of any or all changes, omissions or extra work shall be agreed upon and fixed in
writing, signed by City and Contractor, prior to performance.
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9. Contractor's Failure to Perform. Should Contractor, at any time during
the progress of the work, refuse or fail to supply sufficient material or workmen for the
expeditious progress of said work or fail to perform any other provisions of this Contract,
City may, upon giving notice in writing to Contractor as provided herein and upon
Contractor's failure to remedy any such failure within 3 days from receipt of such notice,
terminate this Contract and provide the necessary material and workmen to finish the
work and may enter upon the Property for such purpose and complete said work. The
expense thereof shall be deducted from the payments remaining under Paragraph 3 above,
or if the total cost of the work to City exceeds the amount of such remaining payments,
Contractor shall pay to City upon demand the amount of such excess in addition to any
and all other damages to which City may be entitled. In the event of such termination,
City may take possession of all materials, equipment and appliances belonging to
Contractor upon or adjacent to the Property upon which said work is being performed and
may use the same in the completion of said work. Such termination shall not prejudice or
be exclusive of any other legal rights which City may have against Contractor.
10. Extension of Time for Completion. Time is of the essence of this
Contract and Contractor shall substantially complete the work during the time provided
for herein. However, the time during which Contractor is delayed in said work by (a) the
acts of City or its agents or employees or those claiming under Contract with or
permission from City, or (b) the acts of God which Contractor could not have reasonably
foreseen and provided against, or (c) unanticipated stormy or inclement weather which
necessarily delays the work, or (d) any strikes, boycotts or obstructive actions by
employees or labor organizations and which are beyond the control of Contractor and
which it cannot reasonably overcome, or (e) the failure of City to make progress
payments promptly, shall be added to the time for completion of the work by a fair and
reasonable allowance. Contractor recognizes, however, that the site of the work is in the
Rocky Mountains at a high elevation where inclement whether conditions are common.
This fact has been considered by Contractor in preparing its Proposal and or agreeing to
the Scope of Work. Furthermore, Contractor shall have the right to stop work if any
payment, including payment for extra work, is not made to Contractor as provided in this
Contract. In the event of such nonpayment, Contractor may keep the job idle until all
payments then due are received.
11. Unforeseen Conditions. It is understood and agreed that Contractor,
before incurring any other expenses or purchasing any other materials for the Project,
shall proceed to inspect the work site and all visible conditions and that if, at the time of
inspection therefor, the Contractor finds that the proposed work is at variance with the
conditions indicated by the Proposal, Scope of Work, or information supplied by City, or
should Contractor encounter physical conditions below the surface of the ground of an
unusual nature, differing materially from those ordinarily encountered and generally
recognized as inherent in work of the character provided for in this Contract or inherent in
a work site located in the Rocky Mountains, Contractor shall so notify City, and City
shall at that time have the right and option to immediately cancel and terminate this
Contract or to instruct Contractor to continue the work and add the additional amount
attributable to such unforeseen conditions to the payments due Contractor as set forth
above.
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It is agreed that in the event of any cancellation by City in accordance with this section,
Contractor shall be paid the actual costs of the work done prior to the time of
cancellation. In computing such costs, building permit fees, insurance and such financing
and title charges as are not refundable shall be included; provided that supervision time,
office overhead and profit shall not be included in such costs to be refunded to Contractor
by reason of such cancellation.
12. Acceptance by City. No payment hereunder nor occupancy of said
improvements or any part thereof shall be construed as an acceptance of any work done
up to the time of such payment or occupancy, but the entire work is to be subject to the
inspection and approval of City at the time when Contractor notifies City that the Project
has been completed.
13. Notice of Completion; Contractor's Release. City agrees to sign and file of
record within five (5) days after the substantial completion and acceptance of the Project
a Notice of Completion. If City fails to so record the Notice of Completion within said
five (5) day period, City hereby appoints Contractor as City's agent to sign and record
such Notice of Completion on City's behalf. This agency is irrevocable and is an agency
coupled with an interest. Contractor agrees upon receipt of final payment to release the
Project and property from any and all claims that may have accrued against the same by
reason of said construction. If Contractor faithfully performs the obligations of this
Contract on its part to be performed, it shall have the right to refuse to permit occupancy
of any structures by City or City's assignees or agents until the Notice of Completion has
been recorded and Contractor has received the payment, if any, due hereunder at
completion of construction, less such amounts as may be retained pursuant to mutual
Contract of City and Contractor under the provisions of Paragraph 3 above.
14. Indemnification. Professional agrees to indemnify and hold harmless the
City, its officers, employees, insurers, and self-insurance pool, from and against all liability,
claims, and demands, on account of injury, loss, or damage, including without limitation
claims arising from bodily injury, personal injury, sickness, disease, death, property loss or
damage, or any other loss of any kind whatsoever, which arise out of or are in any manner
connected with this contract, to the extent and for an amount represented by the degree or
percentage such injury, loss, or damage is caused in whole or in part by, or is claimed to be
caused in whole or in part by, the wrongful act, omission, error, professional error, mistake,
negligence, or other fault of the Professional, any subcontractor of the Professional, or any
officer, employee, representative, or agent of the Professional or of any subcontractor of the
Professional, or which arises out of any workmen's compensation claim of any employee of
the Professional or of any employee of any subcontractor of the Professional. The
Professional agrees to investigate, handle, respond to, and to provide defense for and defend
against, any such liability, claims or demands at the sole expense of the Professional, or at
the option of the City, agrees to pay the City or reimburse the City for the defense costs
incurred by the City in connection with, any such liability, claims, or demands. If it is
determined by the final judgment of a court of competent jurisdiction that such injury, loss,
or damage was caused in whole or in part by the act, omission, or other fault of the City, its
officers, or its employees, the City shall reimburse the Professional for the portion of the
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judgment attributable to such act, omission, or other fault of the City, its officers, or
employees.
15. Insurance.
a. The Contractor agrees to procure and maintain, at its own expense, a policy
or policies of insurance sufficient to insure against all liability, claims, demands, and other
obligations assumed by the Contractor pursuant to the terms of this Contract. Such
insurance shall be in addition to any other insurance requirements imposed by this contract
or by law. The Contractor shall not be relieved of any liability, claims, demands, or other
obligations assumed pursuant to the terms of this Contract by reason of its failure to procure
or maintain insurance, or by reason of its failure to procure or maintain insurance in
sufficient amounts, duration, or types.
b. Contractor shall procure and maintain, and shall cause any subcontractor of
the Contractor to procure and maintain, the minimum insurance coverages listed in the
Supplemental Conditions. If the Supplemental Conditions do not set forth minimum
insurance coverage, then the minimum coverage shall be as set forth below. Such coverage
shall be procured and maintained with forms and insurance acceptable to City. All coverage
shall be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Contractor pursuant to the terms of this Contract. In the case of
any claims-made policy, the necessary retroactive dates and extended reporting periods shall
be procured to maintain such continuous coverage.
1. Worker's Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this
contract, and Employers' Liability insurance with minimum limits of ONE
MILLION DOLLARS ($1,000,000.00) for each accident, ONE MILLION
DOLLARS ($1,000,000.00) disease - policy limit, and ONE MILLION DOLLARS
($1,000,000.00) disease - each employee. Evidence of qualified self-insured status
may be substituted for the Worker's Compensation requirements of this paragraph.
2. Commercial General Liability insurance with minimum combined
single limits of TWO MILLION DOLLARS ($2,000,000.00) each occurrence and
THREE MILLION DOLLARS ($3,000,000.00) aggregate. The policy shall be
applicable to all premises and operations. The policy shall include coverage for
bodily injury, broad form property damage (including completed operations),
personal injury (including coverage for contractual and employee acts), blanket
contractual, independent contractors, products, and completed operations. The
policy shall include coverage for explosion, collapse, and underground hazards. The
policy shall contain a severability of interests provision.
3. Comprehensive Automobile Liability insurance with minimum
combined single limits for bodily injury and property damage of not less than ONE
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MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION
DOLLARS ($1,000,000.00) aggregate with respect to each Contractor's owned,
hired and non-owned vehicles assigned to or used in performance of the services.
The policy shall contain a severability of interests provision. If the Contractor has no
owned automobiles, the requirements of this Section shall be met by each employee
of the Contractor providing services to the City under this contract.
c. Except for any Contractor Liability insurance that may be required, the
policy or policies required above shall be endorsed to include the City of Aspen and the City
of Aspen's officers and employees as additional insureds. Every policy required above shall
be primary insurance, and any insurance carried by the City of Aspen, its officers or
employees, or carried by or provided through any insurance pool of the City of Aspen, shall
be excess and not contributory insurance to that provided by Contractor. No additional
insured endorsement to the policy required above shall contain any exclusion for bodily
injury or property damage arising from completed operations. The Contractor shall be solely
responsible for any deductible losses under any policy required above.
d. The certificate of insurance provided to the City of Aspen shall be
completed by the Contractor's insurance agent as evidence that policies providing the
required coverage, conditions, and minimum limits are in full force and effect, and shall be
reviewed and approved by the City of Aspen prior to commencement of the contract. No
other form of certificate shall be used. The certificate shall identify this contract and shall
provide that the coverage afforded under the policies shall not be canceled, terminated or
materially changed until at least thirty (30) days prior written notice has been given to the
City of Aspen.
e. In addition, these Certificates of Insurance shall contain the following
clauses:
Underwriters and issuers shall have no right of recovery or subrogation against the
City of Aspen, it being the intention of the parties that the insurance policies so
effected shall protect all parties and be primary coverage for any and all losses
covered by the above-described insurance. To the extent that the City's insurer(s)
may become liable for secondary or excess coverage, the City's underwriters and
insurers shall have no right of recovery or subrogation against the Contractor.
The insurance companies issuing the policy or policies shall have no recourse
against the City of Aspen for payment of any premiums or for assessments under
any form of policy.
Any and all deductibles in the above-described insurance policies shall be assumed
by and be for the amount of, and at the sole risk of the Proposer.
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Location of operations shall be: "All operations and locations at which work in
connection with the referenced project is done."
Certificates of Insurance for all renewal policies shall be delivered to the Architect
at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on
the expiration date of this Contract or thereafter.
e. Failure on the part of the Contractor to procure or maintain policies
providing the required coverage, conditions, and minimum limits shall constitute a material
breach of contract upon which City may immediately terminate this contract, or at its
discretion City may procure or renew any such policy or any extended reporting period
thereto and may pay any and all premiums in connection therewith. All moneys so paid by
City shall be repaid by Contractor to City upon demand, or City may offset the cost of the
premiums against moneys due to Contractor from City.
f. City reserves the right to request and receive a certified copy of any policy
and any endorsement thereto.
16. Damage or Destruction. If the Project is destroyed or damaged by any
accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft or
vandalism, any work done by Contractor in rebuilding or restoring the work shall be paid
for by City as extra work under Paragraph 8 above. If, however, the estimated cost of
replacement of the work already completed by Contractor exceeds twenty (20%) percent
of the insured sum set forth in Paragraph 14 above, City shall have the option to cancel
this Contract and, in such event, Contractor shall be paid the reasonable cost, including
net profit to Contractor in the amount of ten (10%) percent, of all work performed by
Contractor before such cancellation.
17. Notices. Any notice which any party is required or may desire to give to any
other party shall be in writing and may be personally delivered or given or made by
United States mail addressed as follows:
To City:
City of Aspen
Jennifer Phelan
427 Rio Grande Place
Aspen, Colorado 81611
To Contractor:
Aspen Constructors Inc
Michael Tanguay
309 Aspen Airport Business Center
Aspen, CO 81611
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subject to the right of either party to designate a different address for itself by notice
similarly given. Any notice so given, delivered or made by United States mail, shall be
deemed to have been given the same day as transmitted by telecopier or delivered
personally, one day after consignment to overnight courier service such as Federal
Express, or two days after the deposit in the United States mail as registered or certified
matter, addressed as above provided, with postage thereon fully prepaid.
18. Inspections; Warranties.
(a) Contractor shall conduct an inspection of the Project prior to final acceptance
of the work with City.
(b) Contractor shall schedule and cause to be performed all corrective activities
necessitated as a result of any deficiencies noted on the final inspection prior to
acceptance. The costs of material and/or labor incurred in connection with such
corrective activities shall not be reimbursed or otherwise paid to Contractor.
(c) Contractor shall obtain, at City's expense, third party warranty contracts (to be
entered into by City).
19. Licensure of Contractor. Contractor hereby represents and warrants to
City that Contractor is duly licensed as a general contractor in the State of Colorado, and
if applicable, in the County of Pitkin.
20. Independent Contractor. It is expressly acknowledged and understood by
the parties that nothing in this Contract shall result in, or be construed as establishing an
employment relationship. The Contractor shall be, and shall perform as, an independent the
Contractor who agrees to use his best efforts to provide the Work on behalf of the City. No
agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the
employee, agent or servant of the City. The City is interested only in the results obtained
under the Contract Documents. The manner and means of conducting the Work are under
the sole control of the Contractor. None of the benefits provided by the City to its
employees including, but not limited to, worker's compensation insurance and
unemployment insurance, are available from the City to the employees, agents or servants
of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for
the acts of the Contractor's agents, employees, servants and subcontractors during the
performance of the Contract.
THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE
ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE
OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY
MONEYS EARNED PURSUANT TO THE CONTRACT.
21. Assignment. This Contract is for the personal services of Contractor.
Contractor shall not transfer or assign this Contract or its rights and responsibilities under
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this Contract nor subcontract to others its rights and responsibilities under this Contract,
and any attempt to do so shall be void and constitute a material breach of this Contract.
22. Successors and Assigns. Subject to paragraph 22, above, this Contract
shall be binding on, and shall inure to the benefit of, City and Contractor and their
respective successors and assigns.
23. Entire Contract. This Contract contains the entire Contract between City
and Contractor respecting the matters set forth herein and supersedes all prior Contracts
between City and Contractor respecting such matters.
24. Waivers. No waiver by City or Contractor of any default by the other or
of any event, circumstance or condition permitting either to terminate this Contract shall
constitute a waiver of any other default or other such event, circumstance or condition,
whether of the same or of any other nature or type and whether preceding, concurrent or
succeeding; and no failure or delay by either City or Contractor to exercise any right
arising by reason of any default by the other shall prevent the exercise of such right while
the defaulting party continues in default, and no waiver of any default shall operate as a
waiver of any other default or as a modification of this Contract.
25. Remedies Non-Exclusive. No remedy conferred on either party to this
Contract shall be exclusive of any other remedy herein or by law provided or permitted,
but each shall be cumulative and shall be in addition to every other remedy.
26. Governing Law. This Contract shall be governed by, and construed in
accordance with, the laws of the State of Colorado. Venue for any action at law or equity
shall be Pitkin County.
27. Attorneys' Fees. If either party to this Contract shall institute any action
or proceeding to enforce any right, remedy or provision contained in this Contract, the
prevailing party in such action shall be entitled to receive its attorneys' fees in connection
with such action from the non-prevailing party.
28. Severability. Any provision in this Contract which is held to be
inoperative, unenforceable or invalid shall be inoperative, unenforceable or invalid
without affecting the remaining provisions, and to this end the provisions of this Contract
are declared to be severable.
29. Nondiscrimination. During the performance of this Contract, the
Contractor agrees as follows: The Contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, national origin, age, marital
status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or
Vietnam era veteran. The Contractor will take affirmative action to insure that applicants
are employed, and that employees are treated during employment without regard to their
race, color, religion, sex, national origin, sex, age, sexual orientation, handicapped, a
disadvantaged person, or a disabled or Vietnam era veteran. Such action shall include, but
not be limited to, the following: employment, upgrading, demotion or transfer; recruitment
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or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Contractor agrees
to post in conspicuous places, available to employees and applicants for employment,
notices to be provided setting forth the provisions of this nondiscrimination clause.
30. Prohibited Interest. No member, officer, or employee of the City of
Aspen, Pitkin County or the Town of Snowmass Village shall have any interest, direct or
indirect, in this Contract or the proceeds thereof.
31. Warranties Against Contingent Fees, Gratuities, Kickbacks and
Conflict of Interest:
a. The Contractor warrants that no person or selling agency has been employed
or retained to solicit or secure this Contract upon a Contract or understanding for a
commission, percentage, brokerage, or contingency fee, excepting bona fide employees or
bona fide established commercial or selling agencies maintained by the Contractor for the
purpose of securing business.
b. The Contractor agrees not to give any employee or former employee of the
City a gratuity or any offer of employment in connection with any decision, approval,
disapproval, recommendation, preparation of any part of a program requirement or a
purchase request, influencing the content of any specification or procurement standard,
rendering of advice, investigation, auditing, or in any other advisory capacity in any
proceeding or application, request for ruling, determination, claim or controversy, or other
particular matter, pertaining to this Contract or to any solicitation or proposal therefor.
c. It shall be a material breach of the Contract for any payment, gratuity, or
offer of employment to be made by or on behalf of a Subcontractor under a contract to the
prime Contractor or higher tier Subcontractor or any person associated therewith, as an
inducement for the award of a Subcontract or order. The Contractor is prohibited from
inducing, by any means, any person employed under this Contract to give up any part of the
compensation to which he/she is otherwise entitled. The Contractor shall comply with all
applicable local, state and federal "anti-kickback" statutes or regulations.
32. Payments Subject to Annual Appropriations. If the contract awarded
extends beyond the calendar year, nothing herein shall be construed as an obligation by the
City beyond any amounts that may be, from time to time, appropriated by the City on an
annual basis. It is understood that payment under any contract is conditional upon annual
appropriation of funds by said governing body and that before providing services, the
Contractor, if it so requests, will be advised as to the status of funds appropriated for
services or materials and shall not be obligated to provide services or materials for which
funds have not been appropriate.
33. Worker Without Authorization – CRS §8-17.5-101 & §24-76.5-101.
Purpose. During the 2021 Colorado legislative session, the legislature passed House Bill
21-1075 that amended current CRS §8-17.5-102 (1), (2)(a), (2)(b) introductory portion,
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and (2)(b)(III) as it relates to the employment of and contracting with a “worker without
authorization” which is defined as an individual who is unable to provide evidence that
the individual is authorized by the federal government to work in the United States. As
amended, the current law prohibits all state agencies and political subdivisions, including
the Owner, from knowingly hiring a worker without authorization to perform work under
a contract, or to knowingly contract with a Contractor who knowingly hires with a worker
without authorization to perform work under the contract. The law also requires that all
contracts for services include certain specific language as set forth in the statutes. The
following terms and conditions have been designed to comply with the requirements of
this new law.
Definitions. The following terms are defined by this reference are incorporated herein
and in any contract for services entered into with the Owner.
.1 "E-verify program" means the electronic employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public
Law 156, 108th Congress, as amended, that is jointly administered by the United
States Department of Homeland Security and the social security Administration,
or its successor program.
.2 "Department program" means the employment verification program established
pursuant to Section 8-17.5-102(5)(c).
.3 "Public Contract for Services" means this Agreement.
.4 "Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than
reports that are merely incidental to the required performance.
.5 “Worker without authorization” means an individual who is unable to provide
evidence that the individual is authorized by the federal government to work in the
United States
By signing this document, Contractor certifies and represents that at this time:
1. Contractor shall confirm the employment eligibility of all employees who are
newly hired for employment to perform work under the public contract for
services; and
2. Contractor has participated or attempted to participate in either the e-verify
program or the department program in order to verify that new employees are not
workers without authorization.
Contractor hereby confirms that:
1. Contractor shall not knowingly employ or contract with a worker without
authorization to perform work under the Public Contract for Services.
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2. Contractor shall not enter into a contract with a subcontractor that fails to
certify to the Contractor that the subcontractor shall not knowingly employ or
contract with a worker without authorization to perform work under the Public
Contract for Services.
3. Contractor has confirmed the employment eligibility of all employees who are
newly hired for employment to perform work under the public contract for
services through participation in either the e-verify program or the department
program.
4. Contractor shall not use the either the e-verify program or the department
program procedures to undertake pre-employment screening of job applicants
while the Public Contract for Services is being performed.
If Contractor obtains actual knowledge that a subcontractor performing work under the
Public Contract for Services knowingly employs or contracts with a worker without
authorization, Contractor shall:
1. Notify such subcontractor and the Owner within three days that Contractor has
actual knowledge that the subcontractor is employing or subcontracting with a
worker without authorization: and
2. Terminate the subcontract with the subcontractor if within three days of
receiving the notice required pursuant to this section the subcontractor does not
stop employing or contracting with the worker without authorization; except that
Contractor shall not terminate the Public Contract for Services with the
subcontractor if during such three days the subcontractor provides information to
establish that the subcontractor has not knowingly employed or contracted with a
worker without authorization.
Contractor shall comply with any reasonable request by the Colorado Department of
Labor and Employment made in the course of an investigation that the Colorado
Department of Labor and Employment undertakes or is undertaking pursuant to the
authority established in Subsection 8-17.5-102 (5), C.R.S.
If Contractor violates any provision of the Public Contract for Services pertaining to the
duties imposed by Subsection 8-17.5-102, C.R.S. the Owner may terminate this
Agreement. If this Agreement is so terminated, Contractor shall be liable for actual
damages to the Owner arising out of Contractor’s violation of Subsection 8-17.5-102,
C.R.S.
It is agreed that neither this agreement nor any of its terms, provisions, conditions,
representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the
parties.
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If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it
shall not affect or impair the validity, legality or enforceability of any other provision.
34. Electronic Signatures and Electronic Records This Agreement and
any amendments hereto may be executed in several counterparts, each of which shall be
deemed an original, and all of which together shall constitute one agreement binding on
the Parties, notwithstanding the possible event that all Parties may not have signed the
same counterpart. Furthermore, each Party consents to the use of electronic signatures by
either Party. The Scope of Work, and any other documents requiring a signature
hereunder, may be signed electronically in the manner agreed to by the Parties. The
Parties agree not to deny the legal effect or enforceability of the Agreement solely
because it is in electronic form or because an electronic record was used in its formation.
The Parties agree not to object to the admissibility of the Agreement in the form of an
electronic record, or a paper copy of an electronic documents, or a paper copy of a
document bearing an electronic signature, on the ground that it is an electronic record or
electronic signature or that it is not in its original form or is not an original.
IN WITNESS WHEREOF, the parties agree hereto have executed this Contract for
Construction on the date first above written.
ATTESTED BY: CITY OF ASPEN, COLORADO
By: ____________
Title:_________________________
APPROVED AS TO FORM:
By:
City Attorney
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ATTESTED BY: CONTRACTOR:
__________________________ By: __________________________
Title:__________________________
Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a
partnership, the Contract shall be signed by a Principal and indicate title.
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Michael Tanguay
President
2/16/2023 | 12:27:17 PM PST
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CERTIFICATE OF INCORPORATION
(To be completed if Contractor is a Corporation)
STATE OF ____________________)
) SS.
COUNTY OF __________________)
On this _______ day of ________________________________, 20____, before
me appeared
___________________________________________________, to me
personally known, who, being by me first duly sworn, did s ay that s/he is
___________________________________ of
_______________________________________________________ and that
the seal affixed to said instrument is the corporate seal of said corporation, and
that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors, and said deponent acknowledged sai d
instrument to be the free act and deed of said corporation.
WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate
first above written.
______________________________________
Notary Public
______________________________________
Address
My commission expires: _______________________
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Aspen Constructors Inc. (ACI) Response to RFP
for “Rio Grande Parking Garage Public
Bathrooms”
City of Aspen Project #2023-002
January 31, 2023
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Exhibit A
80
January 31, 2023
City of Aspen
Purchasing
427 Rio Grande Place
Aspen, Colorado 81611
www.aspen.gov
#2023-002 “Rio Grande Parking Garage Public Restrooms”
To all it may concern:
Aspen Constructors Incorporated (ACI) is pleased to submit our proposal for City of Aspen
Project #2023-002 Rio Grande Parking Garage Public Bathrooms. This letter is to confirm our
interest in participating in the project and express our understanding of the RFP purpose, and the
opportunities herein.
Aspen Constructors understands the purpose of the Invitation to Bid is to solicit the professional
services of a General Contractor to execute the interior remodel of Rio Grande Parking Garage
Public Bathrooms and Janitorial closet. This includes the overseeing of all demolition, framing,
plumbing, electrical, Painting, and Tiling subcontractors to complete tasks related to the
construction of said public bathrooms. As part of the selected team, the Contractor will work
alongside the City of Aspen to provide advice and guidance on all aspects and goals of the
project including but not limited to contracts, schedule, cost, and quality assurance and control.
The Rio Grande Parking Garage Public Bathrooms Project is an opportunity for Aspen
Constructors to make a lasting contribution to one of the City’s essential assets. In summary,
Aspen Constructors would be more than excited to participate in this project. We welcome the
associated challenges and look forward to potentially working with an excellent team.
Sincerely,
Michael L. Tanguay
President, Aspen Constructors, Inc.
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Key Staff Assigned to the Project
Michael Tanguay, Ow ner Aspen Constructors
Email: mtanguay@aspenconstructors.com
O: 970-925-7608
Michael Bassi, Senior Superintendent, Aspen Constructors
Email: mbassi@aspenconstructors.com
C: 970-948-9006
Justin LaBier, Project Manager Aspen Constructors
Email: jlabier@aspenconstructors.com
C: 970-333-6749
Leroy Spaulding, Foreman Aspen Constructors
Email: lspaulding@aspenconstructors.com
Cell: 970-379-0765
Description of Firm, and Ownership Structure
Aspen Constructors is a 33-year-old construction company based in Aspen, Colorado. It was founded in
1988 by Michael L. Tanguay who also serves as President, Secretary and Treasurer. Aspen Constructors
is structured as a Sub S Corporation with Michael Tanguay owning 100 % of the corporate stock.
Michael J. Bassi serves as Vice President. Aspen Constructors is renowned for the highest quality
commercial and residential construction. Attention to detail is impeccable and unsurpassed.
Company Mission and Background
Aspen Constructors’ Mission is to be a profitable operation focused on producing the highest quality
product in a cost effective and timely manner.
Michael Tanguay founded Aspen Constructors in 1988 with the dream of building exceptional homes
and commercial buildings for Aspen and Snowmass, Colorado. Over the past three decades, Aspen
Constructors has grown to become one of the leading forces of building innovation in the Rockies and
has gained a reputation as the premier builder for luxury homes and high-end commercial spaces in the
Roaring Fork Valley.
By focusing on communication and efficient management, Aspen Constructors has built a dedicated
client base that appreciates the team’s dedication to quality craftsmanship and on-time, on-budget
delivery. We are proud to say that much of Aspen’s business comes from repeat clients and referrals
from satisfied customers.
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Statement of General Understanding of Scope & Interest
ACI’s general understanding of the scope is the City of Aspen’s desire to engage a qualified
Construction Firm as a General Contractor/Construction Manager for the upcoming “Rio Grande
Parking Garage Public Bathrooms”. The selected contractor will work with the City of Aspen and
various subcontractors to execute the efficient interior remodel of the Rio Grande Parking Garage Public
Bathrooms. Aspen Constructors has the highest level of interest in being awarded the Rio Grande
Parking Garage Public Bathrooms project and will see it through to successful completion.
Qualifications & Project Experience
(2013) Wheeler Opera House– Balcony Renovation and A-V Upgrades – Aspen, CO
• 3-Phase Project Including Pre-Construction Services, Demolition and Reconstruction
• Collaborative effort between Aspen Constructors Inc., Mills + Schnoering, City of Aspen Capital
Asset Department, City of Aspen Building Department and Wheeler Staff to replace balcony
structure and Finishes, all theater seats, replace all lighting with energy-efficient LED lights,
upgrade entire audio-visual system to state-of-the-art digital system, improve patron comfort
with improved conditioning, and refurbish chandelier with all LED lamps and new UL Listing.
• “Fast-Track” three month construction duration completion date December 2013
• Mills & Schnoering Architecture HPC award winning project
• $2,150,000
Private Residence – Historic Aspen House – Aspen, CO
• Aspen Constructors was proud to complete this award-winning reconstruction of an iconic Aspen
home. This 19th century structure is on the National Historic Register, and was owned by the
former Judge Shaw and Actor Jack Nicholson. To modernize and expand the home, Aspen
Constructors lifted the house off of its original stone foundation and added a complete basement
with living quarters. A new foundation system was added to support the structure above. Today,
this home continues to add its unique charm to the West End of Aspen.
• Aspen Constructors Inc. worked extensively upfront with HPC to identify all preservation efforts
during the project and maintain all preservation directives from HPC.
• Project awarded with HPC recognitions
• Architect – McAlpine Tankersley Architects Inc.
• 24 month construction duration Certificate of Occupancy July 2016
• 8,000 plus square feet
DocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B
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Wheeler Opera House – Administrative Office Remodel, Tenant Space Remodel – Aspen, CO
• 3-Phase Project Including Pre-Construction Services, Demolition and Reconstruction
• Collaborative effort between Aspen Constructors Inc., Mills & Schnoering (formerly
Farewell Mills Gatsch Architects), Rowland-Broughton Architects, City of Aspen Capital
Asset Department, City of Aspen Building Department and Wheeler Staff to revamp
aged building mechanicals, Restaurant and Art Gallery, and renovate 40% of the 123
year old building
• Special conditions included major MEP infrastructure, lowered basement level floor by 2
Feet.
• “Fast-Track” 7 month construction duration achieved during full schedule of Wheeler
events Completion February 2012
• 8,000 square feet
• $3,000,000
Outside Consultants retained for this project
CONTACT FIRM TELEPHONE
Luis Menendez Menendez Architects 970-544-4851
Jeremy Keranen Young Services 970-384-2271
Doug Lassiter Lassiter Electric 970-927-4656
Gualberto Romeros Romeros Tile, Marble, and Granite 970-930-6117
Greg Kontour Architectural Window & Door 970-928-9314
Kelly Korth SnowCap Decorative Hardware 970-872-3889
Colby Cox DG Construction 970-384-2010
Enrique Pena Forrest Painting 970-927-4153
Brian Flynn All Valley Resource 970-300-3309
DocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B
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Approach to the Project
1. Mobilization
2. Demolition
3. Plumbing & Electrical Cap offs and new Rough- Ins
4. Re-framing & misc. blocking
5. Door installations
6. Framing Inspections
7. Plumbing & Electrical Inspections
8. Tile prep
9. Tile walls & Floors
10. HVAC trim outs
11. Plumbing trim out
12. Electrical Trim Outs
13. Accessories installation
14. Hang door slabs and hardware
15. Site clean up
16. Final Inspections
ACI will need One (1) parking space reserved for the duration of the project for an ACI dump Truck to
be used for trash hauls as close to the bathrooms as possible.
ACI will need the adjacent parking spot for the storage of materials and staging area. These spaces will
be fenced in with green screen.
Fee Proposal & Project Schedule
See Rio Grande Parking Garage Public Bathrooms Preliminary Schedule of Values and Project Schedule
below.
DocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B
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RGPGPB 1/26/2023
DESCRIPTION OF WORK QUANTITY UNIT OF
MEASURE
TYPE OF
COST UNIT COST SUB AMOUNT MATERIALS EQUIPMENT ACI LABOR
DIVISION 1 GENERAL REQUIREMENTS $24,000.00 $1,970.00 $0.00 $1,000.00 $21,030.00
01-050 Preconstruction
Allowance for 20 hours of preconstruction for PM &
Super to provide constructability feedback, pricing
exercises, subcontractor selections.
25 Hourly Allowance $110.00 $2,750.00
01-100 Project Manager
Allowance for a Part time project manager for the
duration of the project to manage construction
schedule, subcontractor contracts, Change Orders,
RFI's, Submittals, and overall construction
management of the project.
48 Hourly Allowance $110.00 $5,280.00
01-110 Proejct Engineer
01-120 Project Coordinator
01-200 Superintendent
Allowance for a Superintendent to assist with site
layout, subcontractor coordination onsite, quality
control, submittal review and overall site management
100 Hourly Allowance $130.00 $13,000.00
01-210 Foreman
01-220 General Labor/Clean-up
01-230 Skilled Labor
01-300 Engineering & Testing
01-310 Permits & Fees Excluded by Owner
01-400 Mobilzation/Demobilization
01-410 Jobsite Truck Allowance for ACI job truck to assist with materials &
equipment deliveries for the duration of the project 1 Lump Sum Allowance $500.00 $500.00
01-420 Jobsite Trailer
01-430 Temporary Toilet Excluded. Assumes use of city facility
01-440 Trash Removal
Allowance for material haul off at $250 per dump
based on 2 hr round trip at $65/hr for dump truck and
$120 dump fees average.
3 Trips Allowance $250.00 $750.00
01-460 Temporary Utilities
01-470 Equipment Rental Equipment rental for wall/floor tile, existing fixtures,
and any other misc. demo 1 Lump Sum Allowance $500.00 $500.00
01-500 Shipping & Delivery
01-510 Reprographics
01-600 Security
01-610 Safety and Protection Allowance for personal protection equipment for
demolition phase 1 Lump Sum Allowance $500.00 $500.00
01-700 Final Clean
01-800 Winter Conditions
01-825 Parking Allowance for parking at city core 1 Lump Sum Allowance $720.00 $720.00
CITY OF ASPEN RGPG RESTROOMS - PRELIMINARY SCHEDULE OF VALUES
***For T&M budgeting only. This does not constitute a bid, proposal or guarantee.
SPEC SECTION
DocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B
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RGPGPB 1/26/2023
DESCRIPTION OF WORK QUANTITY UNIT OF
MEASURE
TYPE OF
COST UNIT COST SUB AMOUNT MATERIALS EQUIPMENT ACI LABORSPEC SECTION
DIVISION 2 SITEWORK $13,500.00 $750.00 $0.00 $0.00 $12,750.00
02-100 Asbestos Abatement EXCLUDED. ASSUMES INCLUDED IN
PERMITTING PACKAGE BY CITY ASSETTS DEPT.
02-110 Demolition Allowance for demolition of all tile, doors, partitions,
fixtures, and any other misc. demo.150 Allowance Hourly $85.00 $12,750.00
02-200 Surveying & Layout
02-210 Radon
02-220 Testing & Inspections
02-300 Sitework
02-310 Dewatering
02-320 Soil Treatment
02-400 Wells
02-500 Fencing/Temp Fencing Allowance for 4 sections of construction fencing and
screening for staging area. 1 Lump Sum Allowance $750.00 $750.00
02-700 Paving
02-900 Landscaping
DIVISION 3 CONCRETE $0.00 $0.00 $0.00 $0.00 $0.00
03-100 Concrete Cutting
03-200 Concrete Foundations
03-300 Concrete Flatwork
03-400 Concrete Driveways
03-500 Precast Concrete
03-600 Concrete Protection
03-700 Misc. Concrete
DIVISION 4 MASONRY $0.00 $0.00 $0.00 $0.00 $0.00
04-400 Masonry
04-600 Masonry Paving
DIVISION 5 METALS $0.00 $0.00 $0.00 $0.00 $0.00
05-100 Cranes/Hoisting
05-200 Structural Steel
05-700 Ornamental Metals
DIVISION 6 WOOD & PLASTICS $27,450.00 $0.00 $4,500.00 $0.00 $22,950.00
06-100 Labor
Allowance for ACI carpenters to install 4 doors,
signage, grills, grab bars, mirrors, all accessories,
misc. framing,
270 Hourly Allowance $85.00 $22,950.00
06-150 Materials Allowance for stud framing, blocking, glues, screws,
fasteners
1 Lump Sum Allowance $4,500.00 $4,500.00
06-200 Exterior Siding & Trim Materials
06-250 Finish Carpentry
06-300 Finish Materials
06-400 Cabinetry
DocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B
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RGPGPB 1/26/2023
DESCRIPTION OF WORK QUANTITY UNIT OF
MEASURE
TYPE OF
COST UNIT COST SUB AMOUNT MATERIALS EQUIPMENT ACI LABORSPEC SECTION
DIVISION 7 THERMAL & MOISTURE
PROTECTION $0.00 $0.00 $0.00 $0.00 $0.00
07-100 Foundation Waterproofing
07-200 Insulation
07-400 Roofing
07-600 Flashing & Sheetmetal
07-900 Caulking and Sealants
DIVISION 8 DOORS & WINDOWS $14,100.00 $14,100.00 $0.00 $0.00 $0.00
08-100 Interior Doors Preliminary Proposal dated 1.19.23 1 Lump Sum Proposal $6,000.00 $6,000.00
08-200 Exterior Doors
08-300 Garage Doors
08-400 Entry Doors
08-500 Windows
08-600 Skylights
08-700 Hardware Allowance for restroom and janitor signage, door
hardware, 4 each Allowance $1,900.00 $8,100.00
08-800 Mirrors & Glazing
08-900 Glass Shower Doors
DIVISION 9 FINISHES $20,025.00 $20,025.00 $0.00 $0.00 $0.00
09-100 Stucco
09-200 Drywall & Plaster Allowance for Misc Drywall Patching 1 Lump Sum Allowance $1,200.00 $1,200.00
09-250 Samples
09-300 Tile & Stone Preliminary tile proposal dated 1.5.23 1 Lump Sum Proposal $17,325.00 $17,325.00
09-400 Wood Flooring
09-500 Carpet
09-600 Epoxy Flooring
09-650 Resilient Flooring
09-700 Specialty Finishes
09-800 Acoustical Treatment
09-900 Painting & Staining Allowance for paint all walls and ceilings 1 Lump Sum Allowance $1,500.00 $1,500.00
DIVISION 10 SPECIALTIES $0.00 $0.00 $0.00 $0.00 $0.00
10-300 Fireplace & Stoves
10-500 Specialties
10-800 Toilet & Bath Accessories
10-900 Maint. Materials & Supplies
DIVISION 11 EQUIPMENT $0.00 $0.00 $0.00 $0.00 $0.00
11-100 Appliances
11-500 Specialty Equipment
DIVISION 12 FURNISHINGS $0.00 $0.00 $0.00 $0.00 $0.00
12-100 Window Coverings
12-500 Specialty Furnishings
DocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B
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RGPGPB 1/26/2023
DESCRIPTION OF WORK QUANTITY UNIT OF
MEASURE
TYPE OF
COST UNIT COST SUB AMOUNT MATERIALS EQUIPMENT ACI LABORSPEC SECTION
DIVISION 13 SPECIAL CONSTRUCTION $0.00 $0.00 $0.00 $0.00 $0.00
13-100 Pools & Spas
13-600 Solar
13-700 Security & Alarm Systems
13-900 Specialty Construction
DIVISION 14 CONVEYING SYSTEMS $0.00 $0.00 $0.00 $0.00 $0.00
14-200 Elevators
14-800 Scaffolding
DIVISION 15 MECHANICAL $31,150.00 $30,800.00 $350.00 $0.00 $0.00
15-300 Fire Protection Assumes fire protection does not affect remodel.
15-400 Plumbing Preliminary plumbing proposal dated 12.7.22 includes
$21,100.00 fixture package 1 Lump Sum Proposal $30,000.00 $30,000.00
15-400 Plumbing Proposal to snake drains at end of project. inludes
camera scope at $250 1 Lump Sum Proposal $800.00 $800.00
15-500 Water Treatment
15-700 HVAC Allowance for new mechanical supply/ Return air grills, 1 Lump Sum Allowance $350.00 $350.00
15-900 Test & Balance
DIVISION 16 ELECTRICAL $4,075.92 $4,075.92 $0.00 $0.00 $0.00
16-100 Electrical-120/240 Volt Preliminary Electrical Proposal dated 11.23.22 1 Lump Sum Proposal $4,075.92 $4,075.92
16-400 Audio Visual
Subcontract Materials Equipment ACI Labor
Subtotal $134,300.92 $71,720.92 $4,850.00 $1,000.00 $56,730.00
Contractor Fee 18%18%18%18%0%
General Liability Insurance 1.1%$788.93 $53.35 $11.00 $624.03
Builders Risk Insurance 0.5%$358.60 $24.25 $5.00 $283.65
$14,263.86 $964.57 $198.88 $1,043.83
Total Fee $16,471.14
TOTAL $150,772.06
$376.93 Cost / SF
DocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B
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IDTask ModeName Duration Start Finish Predecessors1DIVISION 1 ‐ GENERAL CONDITIONS1 dayTue 2/28/23Tue 2/28/232Project Preconstruction1 dayTue 2/28/23Tue 2/28/233Building permit Issuance1 dayTue 2/28/23Tue 2/28/234DIVISION 2 ‐ SITEWORK5 days?Mon 3/6/23Fri 3/10/235Demolition5 days?Mon 3/6/23Fri 3/10/236demo all tile, doors, partitions, fixtures, and misc.5 days?Mon 3/6/23Fri 3/10/237DIVISION 6 ‐ WOODS & PLASTICS10 daysMon 3/13/23Fri 3/24/238Framing10 daysMon 3/13/23Fri 3/24/239new metal stud framing for new layouts, misc. blocking, doors10 daysMon 3/13/23Fri 3/24/23610DIVISION 9 ‐ FINISHES23 daysMon 4/10/23Wed 5/10/2311Tile & Stone20 daysMon 4/10/23Fri 5/5/2312Tile walls and floors20 daysMon 4/3/23Fri 4/28/232113Painting3 daysMon 5/1/23Wed 5/3/2314touch ups3 daysMon 5/1/23Wed 5/3/231215DIVISION 10 ‐ SPECIALTIES4 daysMon 5/8/23Thu 5/11/2316Bath Accessories2 daysMon 5/8/23Tue 5/9/2317Install Bath accessories and signage2 daysMon 5/8/23Tue 5/9/231218DIVISION 15 ‐ MECHANICAL40 days?Mon 3/20/23Fri 5/12/2319Plumbing40 days?Mon 3/20/23Fri 5/12/2320Demo/ Safe off1 day?Mon 3/6/23Mon 3/6/2321Rough‐Ins5 daysMon 3/27/23Fri 3/31/23922Trim Out/ Final Inspection5 daysMon 5/1/23Fri 5/5/2312SMTWTFeb 26, '23CriticalCritical SplitTaskSplitMilestoneSlackSlippageSummaryProject SummaryRolled Up CriticalRolled Up Critical SplitInactive TaskInactive MilestoneInactive SummaryManual TaskDuration-onlyManual Summary RollupManual SummaryStart-onlyFinish-onlyExternal TasksExternal MilestoneDeadlineProgressDocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B90
IDTask ModeName Duration Start Finish Predecessors23DIVISION 16 ‐ ELECTRICAL45 days?Mon 3/6/23Fri 5/5/2324Demo/ Safe offs1 day?Mon 3/6/23Mon 3/6/2325Rough‐Ins1 day?Mon 3/27/23Mon 3/27/23926Electrical Trim Out/ Final Inspection5 daysMon 5/1/23Fri 5/5/231227DIVISION 50 ‐ PROJECT CLOSE OUT63 days?Tue 2/28/23Thu 5/25/2328Project Close Out63 days?Tue 2/28/23Thu 5/25/2329Final Clean2 daysMon 5/8/23Tue 5/9/2322,2630Fire Department Final Inspection1 dayWed 5/10/23Wed 5/10/232931Planning & Zoning Inspection1 dayThu 5/11/23Thu 5/11/233032Sanitation1 dayFri 5/12/23Fri 5/12/233133Utilities1 dayMon 5/15/23Mon 5/15/233234Engineering Water1 day?Tue 5/16/23Tue 5/16/233335Final Building Inspection1 dayWed 5/17/23Wed 5/17/233436Certificate of Occupancy1 dayThu 5/18/23Thu 5/18/233537Owner Move In3 daysFri 5/19/23Tue 5/23/2338Punch List3 daysFri 5/19/23Tue 5/23/2336SMTWTFeb 26, '23CriticalCritical SplitTaskSplitMilestoneSlackSlippageSummaryProject SummaryRolled Up CriticalRolled Up Critical SplitInactive TaskInactive MilestoneInactive SummaryManual TaskDuration-onlyManual Summary RollupManual SummaryStart-onlyFinish-onlyExternal TasksExternal MilestoneDeadlineProgressDocuSign Envelope ID: 4179634B-5A66-493C-8DEE-C250295DB76B91
MEMORANDUM
TO:Mayor and City Council
FROM:Justin Forman, Utilities Director
THROUGH:Tyler Christoff, Deputy Public Works Director
Scott Miller, Public Works Director
MEMO DATE:February 17th, 2023
MEETING DATE:February 28th, 2023
RE:Resolution #031, Series of 2023 – MEAN Green Energy Program
_____
REQUEST OF COUNCIL:Staff requests approval of Resolution #031, Series of 2023,
approving and authorizing the City Manager to execute the Subscription Confirmation
between the City and the Municipal Energy Agency of Nebraska’s (MEAN) for the City’s
participation in the newly created Green Energy Program.
SUMMARY AND BACKGROUND: On July 27th, 2015, Council approved a contract with
MEAN that completed the City’s path toward a 100% renewable electric portfolio with the
purchase and delivery of wind and landfill gas to augment Aspen’s local and regional
hydroelectric resources. Aspen has historically held separate contracts with MEAN for
each renewable energy resource and paid different rates for each energy source.
In November 2022 MEAN and its member communities created the Green Energy
Program (“the Program”). This Program consolidated MEAN’s previously separate
renewable energy resources into a singular renewable ‘pool.’ This aggregation of
resources established a single green energy rate in-place of MEAN’s previous wind and
landfill contract energy rates. MEAN’s current renewable energy resources under the new
program include 86 megawatts from wind, landfill gas and hydropower generation
facilities. The Program takes effect in April 2023, and is intended to replace the existing
MEAN energy programs and agreements with the City, consolidating the rate for
renewable energy from renewable sources Staff and MEAN representatives believe that
the Program’s benefits are as follows;
Allows greater participation and adoption of renewable energy resources within
member communities.
Provides economies of scale with the management and distribution of these
renewable energy resources.
Provides greater resiliency as the various resources support each other in a pooled
environment.
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Creates the most efficient renewables pricing mechanism for Aspen and other
MEAN member communities.
DISCUSSION:Since 2015 Aspen has maintained a 100 percent renewable energy
portfolio with the assistance of MEAN renewable energy The creation of the Program will
discontinue individual energy agreements, such as Aspen’s wind and landfill gas
contracts. To maintain a portfolio of renewable energy sources, Aspen will need to
subscribe to the Program. Participation in the Program will ensure Aspen’s continued
access to renewable energy sources. Staff believe this renewed subscription honors this
commitment to the community and continues to position Aspen as a leader in the Utilities
industry. If Aspen declines to participate in the Program, Aspen will receive MEAN’s
standard resource mix which is comprised of a pool of renewable and carbon-based
resources. MEAN has requested each participant formally adopt this green rate prior to
April 2023.
FINANCIAL IMPACTS:While Aspen’s energy demand is not static, staff believe this
aggregate rate fits within current 2023 budget and purchase power expectations. A
transition to the Program will not require a supplemental budget request and customer
facing rates will remain unchanged in 2023 barring any unforeseen market factors.
ENVIRONMENTAL IMPACTS:Participation in this program continues to meet the goal
of utilizing 100% renewable energy in the City’s electric utility. As MEAN’s current
resources and power contracts are replaced over time, they intend to add additional
renewable resources to meet a 2050 carbon neutral vision. The expansion of this pool
and its associated resources allow additional utilities and communities to move closer to
a carbon neutral future.
ALTERNATIVES: If Council elects to not participate in the Program, the City will forgo
its existing renewable resource supply with MEAN, and may not have the option to
subscribe to the Program in the future at its current participation rates In such a scenario
staff would need to procure additional energy resources through MEAN’s general energy
pool which may not meet the City’s renewable energy demand. Energy from this pool
would significantly reduce Aspen’s renewable energy mix, likely around 60% of the overall
annual demand. Additionally, renewable resources are currently in high demand.
Leadership in the energy industry has allowed Aspen to enjoy a first come, first served
dynamic when looking to acquire and maintain renewables within its portfolio. If the City
does not take advantage of this opportunity and maintain our contractual relationship with
MEAN, it will be difficult for Aspen to re-acquire desired renewable resources in the future.
RECOMMENDATIONS: Staff requests Council move to adopt Resolution #031, Series
2023, MEAN Green Energy Program which will become effective April 1, 2023.
CITY MANAGER COMMENTS:
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ATTACHMENTS:
Exhibit A – MEAN Memorandum of Official Notice of Green Energy Program
Exhibit B – Resolution #031, Series of 2023 – MEAN Green Energy Program
Exhibit C – Subscription Confirmation Agreement from MEAN
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RESOLUTION #031
(Series of 2023)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING AN AMENDED AGREEMENT BETWEEN THE
CITY OF ASPEN, COLORADO, AND MUNICIPAL ENERGY AGENCY OF
NEBRASKA (MEAN) FOR THE PURCHASE OF RENEWABLE ENERGY
AND PARTICIPATION IN THE GREEN ENERGY PROGRAM FOR THE
ASPEN ELECTRICAL UTILITY AND AUTHORIZING THE CITY MANAGER
TO EXECUTE AN AMENDED AGREEMENT ON BEHALF OF THE CITY OF
ASPEN, COLORADO.
WHEREAS, on July 27, 2015, City Council for the City of Aspen approved
contracts between the City of Aspen and the Municipal Energy Agency of
Nebraska (“MEAN”) for the purchase and delivery of renewable energy in the
form of wind and landfill gas energy resources; and
WHEREAS, the 2015 contracts with MEAN for renewable energy resources
are necessary for the City to meet its goal of providing 100% of the gross electric
demands of its municipal electric utility with renewable energy; and
WHEREAS, MEAN announced on January 31, 2023 its new Green Energy
Program to be effective on April 1, 2023; and
WHEREAS, MEAN’s Green Energy Program will replace the existing
MEAN renewable energy services; and
WHEREAS, the City, as a current purchaser of MEAN renewable energy,
has the opportunity to subscribe to the program at the same contracted levels as its
current participation; and
WHEREAS, to participate in the program, the City Council for the City of
Aspen must accept and approve the MEAN Subscription Confirmation agreement
attached hereto as Exhibit A; and
WHEREAS, participation in the Green Energy Program will continue to
ensure the City can accomplish the goal of 100% renewable electric energy to its
electric utility customers; and
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WHEREAS, approval and adoption of the Green Energy Program
Subscription Confirmation serves the public interest and the interest of the City
Electric Utility customers.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO,
The City Council of the City of Aspen hereby approves the Green Energy
Program Subscription Confirmation, attached hereto as Exhibit A, 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 February 2023.
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, February 28th, 2023.
Nicole Henning, City Clerk
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MEMORANDUM
TO:Mayor and City Council
FROM:Nicole Henning
MEMO DATE:February 23, 2023
MEETING DATE:February 28, 2023
RE:Board Appointments
By adopting the Consent Calendar, Council is making the following appointments:
Election Commission – Gail Nichols
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REGULAR MEETING ASPEN CITY COUNCIL JANUARY 24, 2023
At 5:00 p.m. Mayor Torre called the regular meeting to order with Councilors Doyle, Richards, Mesirow,
and Hauenstein present.
PUBLIC COMMENT:
David Scruggs – Mr. Scruggs said he lives at 212 W. Hopkins Ave. He said he addressed council in
November for HPC meetings to be hybrid and now they are conducting all of their meetings in person
only. These decisions affect citizens. He also spoke about a cash in lieu payment for parking spaces.
Nicole VandeBoom – Ms. VandeBoom said she lives in Starwood. She is here representing Aspen Bear
Alliance. They’ve been meeting with the Bear Coalition, Aspen Police, and CP Burger to change how we
are living amongst our black bears. She’s asking for help and collaboration in the community and are
aiming to further educate residents.
COMMISSIONER COMMENTS:
Councilor Doyle said in Austria today Mikayla Shiffrin posted her 83rd World Cup victory and overtook
Lindsey Vonn as the best female ski racer of all time and she’s not finished.
Councilor Hauenstein said Go Avs!
Councilor Richards said this past Sunday there was a gathering to mark the 50th anniversary of Roe v.
Wade or the demise of it. There were a lot of great speeches. She’s inviting people to write to Lauren
Bobert regarding women’s rights.
Mayor Torre said tonight at ACES, Lindsey Brownam is giving a speech on healing the planet and
ourselves. He welcomed X Gamers, guests and athletes and under new ownership this year. He
addressed some letters to the editors and the like in the papers recently. Someone commented on
council having a lot of 5-0 votes. He wants to tackle this for our community to understand, that our
votes come from a lot of compromise. We have worked hard to get to this place. He mentioned the
Entrance to Aspen and how important it is to have the community engaged in these conversations.
We’re listening to our community. March 7th is our municipal election, so please make sure you and your
friends are registered to vote.
CITY MANAGER COMMENTS:
Diane Foster, Assistant City Manager said she and Mike Sear are here and happy to represent as the B
team.
BOARD REPORTS:
Mayor Torre said he and Councilor Hauenstein attended their monthly RFTA meeting last Thursday.
Councilor Hauenstein said they are challenged for drivers.
Councilor Doyle had Nordic Council and said the Spring Gulch trails are now open, but the grooming
hasn’t happened because they have no driver to train.
Councilor Hauenstein said they had CORE and had a change of guard with a new CEO in Dallas Blaney.
They had a report on the Coal Basin methane capture.
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REGULAR MEETING ASPEN CITY COUNCIL JANUARY 24, 2023
Councilor Richards said they had an APCHA meeting last week. They received a data report from the
HomeTrek software. They will continue to finetune the program. She spoke about Club 20’s legislative
days down in Denver and she will be attending.
Councilor Mesirow said there were nine new affordable housing units this quarter, there were 137
maintenance reports, and four rental units available with 430 applications.
CONSENT CALENDAR:
Councilor Hauenstein pulled Resolution #015, Series of 2023. He said his concern is with the retaining
wall and the soil being lubricated by the moisture and the hill is moving. He asked if the new wall is
going to be a permanent solution and he would like to see the funding come out of the general fund
instead of the 505 fund.
Assistant City Manager, Scott Miller, said this is as permanent solution as it can be.
Councilor Richards agrees with using the 505 fund for this project.
City Attorney, James R. True, said this budget discussion is separate from what you are approving
tonight.
Councilor Richards motioned to approve the consent calendar; Councilor Doyle seconded.
Councilor Mesirow is happy to continue the budget discussion.
Roll call vote: Doyle, yes; Hauenstein, yes; Mesirow, yes; Richards, yes; Torre, yes. 5-0, motion carried.
NOTICE OF CALL UP:
500 East Durant Avenue: Minor Development and Commercial Design Review – Amy Simon, Planning
Director
Ms. Simon said this building was built in the 70’s and currently houses Belly Up. The owners would like
to increase restaurant and retail space. They would improve accessibility, extending balconies and
adding windows, and improving mechanical. They would like to apply a dark limewash to the exterior
and is a character change. Staff wants to see a sample, but otherwise approved this project. Staff
recommends upholding the decision.
Mayor Torre said they do not want to call this up.
FIRST READING OF ORDINANCES:
Ordinance #03, Series of 2023 – 216 W. Hyman Avenue –Establishment of TDR’s – Amy Simon,
Planning Director
Councilor Mesirow motioned to read Ordinance #3; Council Hauenstein seconded. Roll call vote: Doyle,
yes; Hauenstein, yes; Mesirow, yes; Richards, yes; Torre, yes. 5-0, motion carried.
Deputy City Clerk, Mike Sear, read the ordinance.
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REGULAR MEETING ASPEN CITY COUNCIL JANUARY 24, 2023
Ms. Simon said thiswould allow the owner, Ann Mullins, to remove some of the unused development
rights on her property to developable properties. Ms. Mullins would like to create two TDR’s and sell to
another development in town. HPC is supporting this request and staff is recommending approval.
Councilor Richards motioned to approve Ordinance #03; Councilor Mesirow seconded. Roll call vote:
Doyle, yes; Hauenstein, yes; Mesirow, yes; Richards, yes; Torre, yes. 5-0, motion carried.
PUBLIC HEARINGS:
Ordinance #01, Series of 2023 –Proposed Amendments to Building Regulations Title 8, Aspen Municipal
Code – Ben Anderson, City Planner; Denis Murray, Plans Examination Manager; Bonnie Muhigirwa, Chief
Building Official; and Nick Thompson, Senior Plans Examiner
Mr. Anderson introduced the ordinance. Ms. Muhigirwa ran through how they got to this point of
adopting the 2021 International Building Codes. She said these codes are adopted on a six-year cycle
typically. She recapped previous direction given by council and explained the community outreach that
was done. She described the minor changes which were made between the first and second reading.
She said the biggest change is that they are no longer adopting the International Residential Code and
that the International Building Code will now be applied to single family homes and duplexes. She
described the requirements moving forward on new construction. Mr. Thompson explained the
commissioning process and electric readiness.
Council had a robust discussion and asked questions of consultant Shaunna Mozingo.
Mayor Torre opened the public hearing.
Mayor Torre closed the public hearing.
Councilor Doyle motioned to approve Ordinance #01, Series of 2023; Councilor Mesirow seconded.
Councilor Hauenstein said hats off to the team and thank you for all of your hard work. You guys are the
rubber on the road.
Councilor Mesirow said thank you; it has been a long journey.
Councilor Richards said thank you for continuing Stephen Kanipe’s legacy.
Councilor Doyle thanked staff and Ms. Mozingo for all of their hard work. He quoted something Ms.
Mozingo said about complementing Aspen at a conference he attended.
Ms. Mozingo said she works with a lot of jurisdictions and a part of saying others won’t be as good as
Aspen is about the thought and the work that this team has put into it. it has been true diligence by this
team that can assure council that anything that goes into this code will be completely thought out.
Roll call vote: Doyle, yes; Hauenstein, yes; Mesirow, yes; Richards, yes; Torre, yes. 5-0, motion carried.
Ordinance #02, Series of 2023 –Formalization of Grants Steering Committee – John Barker,
Management Analyst II
Mr. Barker said that no changes have been made to this document since first reading and he is happy to
take questions.
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4
REGULAR MEETING ASPEN CITY COUNCIL JANUARY 24, 2023
Mayor Torre opened and closed the public hearing.
Councilor Hauenstein motioned to approve Ordinance #02, Series of 2023; Councilor Mesirow seconded.
Councilor Mesirow said most communities don’t get to do this so he’s very happy to support it.
Roll call vote: Doyle, yes; Hauenstein, yes; Mesirow, yes; Richards, yes; Torre, yes. 5-0, motion carried.
ACTION ITEMS:
Resolution #003, Series of 2023 –2023 Regional State and Federal Policy Agenda – Tara Nelson, Senior
Paralegal & Policy Coordinator
Ms. Nelson spoke about some of the changes to the document.
Councilor Richards said this is great work.
Councilor Hauenstein asked if there will be a printed copy available to them. Ms. Nelson said yes.
Councilor Richards motioned to approve Resolution #003, Series of 2023 with amendments; Councilor
Hauenstein seconded.
Roll call vote: Doyle, yes; Hauenstein, yes; Mesirow, yes; Richards, yes; Torre, yes. 5-0, motion carried.
Resolution #016, Series of 2023 –Growth Management Allotment Carry-Forward – Amy Simon,
Planning Director
Ms. Simon said we have 17 unused allotments. She said the allotments will not be rolled over into the
next year.
Councilor Richards supports the resolution as presented.
Councilor Richards motioned to approve Resolution #016, Series of 2023; Councilor Doyle seconded.
Councilor Mesirow would like a future discussion on growth expectations.
Roll call vote: Doyle, yes; Hauenstein, yes; Mesirow, yes; Richards, yes; Torre, yes. 5-0, motion carried.
Councilor Hauenstein motioned to adjourn; Councilor Mesirow seconded. Roll call vote: Doyle, yes;
Hauenstein, yes; Mesirow, yes; Richards, yes; Torre, yes. 5-0, motion carried.
___________________________
Nicole Henning, City Clerk
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MEMORANDUM
TO:Mayor and City Council
FROM:Ainsley Brosnan-Smith, Waste Diversion and Recycling Program
Administrator ; Jimena Baldino,Waste Diversion and Recycling
Specialist
THROUGH: Tessa Schreiner, Sustainability Manager; CJ Oliver, Environmental
Health and Sustainability Director; Phillip Supino, Community
Development Director
MEETING DATE: February 28, 2023
RE:Amending Chapter 13.24 of the City of Aspen Municipal Code
Entitled “Waste Reduction”
_____________________________________________________________________
REQUEST OF COUNCIL:
Staff requests that City Council review and approve Ordinance No. 06, Series of 2023 on
First Reading to amend Chapter 13.24,expanding restrictions of single-use, carry out
bags.Staff further requests that Council provide direction as to the information required
to support Council deliberation at the second reading public hearing on March 14, 2023.
BACKGROUND AND PREVIOUS ACTION:
Landfilling waste accounts for 16% of the City of Aspen’s 2020 community greenhouse
gas emissions. Creating strategies to reduce waste is an important step to support the
City’s climate change policies and Council’s climate and environment goal.
In October of 2011,Council adopted Municipal Code 13.24 –Waste Reduction
prohibiting the distribution of single-use plastic carryout bags at the two grocery stores
in the City of Aspen, City Market and Clarks Market.The legislation implemented a
$0.20 fee on all paper bags utilized by customers. The revenue collected from the
single-use bag fees are transferred to the City monthly and are allocated to a Waste
Reduction Fee fund only to be used for specialized waste reduction projects.This
revenue supports projects including the annual purchasing of reusable bags for free
distribution around the city and hosting the free electronic waste collection event for
individuals to recycle their electronics.
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Municipal Code 13.24 –Waste Reduction prioritizes providing “reusable carryout bags
to residents and visitors; and” educating “residents, businesses, and visitors about the
impact of trash on the City’s environmental health, the importance of reducing the
number of disposable carryout bags entering the waste stream, and the impact of
disposable carryout bags on the waterways and the environment” (Sec.13.24.050 (g)
1(A) (B). Since 2012, the single-use plastic bag restrictions have avoided 2.7 million
plastic bags from being distributed in Aspen.
DISCUSSION:
On July 6,2021, Colorado General Assembly enacted House Bill 21-1162 Plastic
Pollution Reduction Act (PPRA)to manage the distribution of single-use materials such
as plastic and polystyrene in Colorado. The proposed ordinance would amend Municipal
Code 13.24 –Waste Reduction to include provisions of HB21-1162 that expand upon
current single-use plastic bag restrictions and fees in Aspen. The amendments to
Municipal Code 13.24 –Waste Reduction include additional requirements of the PPRA
that will be phased-in over the coming years, throughout the state.
Beginning January 1, 2023, all applicable stores in the state of Colorado must charge a
$0.10 fee on all distributed single-use,carryout bags. The PPRA requires the initial $0.10
fee to be spilt 60/40, where 60% of the bag fee is distributed to the municipality and 40%
is retained by the business. The proposed ordinance would increase the PPRA’s $0.10
per bag fee to align with existing Municipal Code 13.24 –Waste Reduction,raising the
fee to $0.20 per bag; retailers will remit $0.16 per bag to the City. Remitted fees to the
City will be used for administrative, enforcement costs and costs associated with any
recycling, composting, or other waste diversion programs and activities.Though
businesses will remit $0.16 of the $0.20 fee, to the City,staff anticipates annual bag fee
revenues to remain consistent due to the addition of an estimated 80 retailers who will
charge fees to their customers under the new state legislation.
Starting on January 1, 2024, the PPRA prohibits the distribution of single-use plastic
carryout bags in the state of Colorado. Applicable stores will then be required to use
recycled paper carryout bags made from 100% recycled content as the carryout bag
alternative. In addition, the PPRA will also prohibit retail food establishments from
distributing expanded polystyrene, Styrofoam, as a container for ready-to-eat foods.The
proposed amendments to Municipal Code 13.24 –Waste Reduction reflect these
requirements starting on January 1, 2024.
The PPRA also repeals the state law currently prohibiting local governments from
requiring or banning specific plastic materials or products. This repeal occurs on July 1,
2024, granting the City authority to enact more stringent laws on the distribution of
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single-use materials.Council has directed staff to pursue additional single-use plastics
restrictions in preparation for the July 1, 2024,date; staff will return to Council with
proposed changes upon community outreach and stakeholder engagement.
ENVIRONMENTAL IMPACT:
The production of single-use materials is an energy intensive process void of a plan for
the handling, recycling, or repurposing of the materials. Due to the complex nature of
most single-use plastic packaging, recycling is not a viable option and permanent, landfill
disposal is the standard practice. Reusable products reduce waste and litter, reduce
pollution, protect wildlife from the harm of single-use plastics, and conserve energy when
compared to the production of disposable bags. Although paper bags are the proposed
alternative, eliminating all disposable bag use holds the strongest environmental benefit.
The City distributes reusable bags around the municipality to encourage reusable
products and decrease reliance on materials requiring permanent disposal or
reprocessing.Additionally, this effort will assist staff in meeting City Council’s overall
waste reduction goal of 70% by 2050.
FINANCIAL IMPACT:
Financial impacts will be determined by revenues accumulated from the single-use
carryout bags fees. Currently, the City’s fee is set at $0.20, per bag. Under the
proposed ordinance, the City of Aspen will collect $0.16 per bag and the retailer will
keep the remaining $0.04. Since the City does not have data on bag usage statistics at
the additional 80 retailers, estimates on annual revenue cannot be calculated at this
time. However, staff does not anticipate the decrease of $0.16 to drastically impact the
revenues historically distributed to the Waste Reduction Fee fund. Following the yearly
incremental single-use bag sales, and the additional bag fee collection from an
estimated of 80 retail stores, bag fee revenues after this ordinance is adopted,are not
likely to decrease or change significantly.The graph below shows sale numbers from
2021 and 2022 and estimates the projected change in revenue in several scenarios.
Bag Amounts Fee per bag Monies remitted to the City
Actual bags sold in
2021
308,146 bags $0.20 $59,228.40
Actual bags sold in
2022
346,280 bags $0.20 $66,845.80
Estimated revenue
using 2022 sales
346,280 bags $0.16 $55,404.80
Estimated revenue
if sales increase by
25%
432,850 bags $0.16 $69,256.00
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Estimated revenue
if sales increase by
50%
519,420 bags $0.16 $83,107.20
Estimated revenue
if sales increase by
75%
605,990 bags $0.16 $96,958.40
RECOMMENDATIONS:
Staff recommends City Council approve Ordinance No. 06, Series of 2023 on first
reading.
ATTACHMENTS:
Attachment A:Municipal Code 13.24 –Waste Reduction –Ordinance Amendments
CITY MANAGER COMMENTS:
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ORDINANCE NO. 06
SERIES OF 2023
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING CHAPTER 13.24 OF THE CITY OF ASPEN MUNICIPAL CODE
ENTITLED “WASTE REDUCTION” TO INCLUDE PROVISIONS RESTRICTING USE
OF DISPOSABLE PLASTIC BAGS CONSISTENT WITH COLORADO HOUSE BILL 21-
1162 AND PORHIBITING THE USE OF CERTAIN PLASTIC MATERIALS.
WHEREAS, the City Council for the City of Aspen has adopted policies and regulations,
including the Ecological Bill of Rights, Mayor’s Climate Protection Agreement, Aspen
Sustainability Action Plan, and Aspen Area Community Plan, to protect the environment and the
health of its citizens and visitors; and
WHEREAS, the proliferation and expanding use of single-use plastics, including single-
use plastic bags and Polystyrene products, also known in certain nomenclature as the trademarked
name of Styrofoam™, (collectively referred to as “single-use plastics”) within the City is a threat
to the health, safety, and welfare of residents and contrary to adopted City environmental and
climate policies; and
WHEREAS, the use of single-use plastics have severe environmental impacts on a local
and global scale, including greenhouse gas emissions, litter, harm to wildlife, atmospheric
acidification, water consumption, and solid waste generation; and
WHEREAS, single-use plastics generally degrade and decompose at an extremely slow
rate, where decomposition often takes over a hundred years, impacting the health of the natural
environment, and
WHEREAS, on October 11, 2011, the City Council adopted Ordinance No. 24, Series of
2011, which added a new Chapter 13.24 entitled “Waste Reduction” to the City of Aspen
Municipal Code; and
WHEREAS, the stated purpose of Ordinance 24, Series of 2011 was to reduce the cost to
the City of solid waste disposal, and to protect our environment and our natural resources by
banning the use of disposable single-use plastic bags and to mandate a fee for the use of paper bags
at grocery stores; and
WHEREAS, Ordinance No. 24, Series of 2011 has been effective in dramatically reducing
the use of single-use plastic bags in Aspen for the last ten (10) years, and
WHEREAS, Ordinance No. 24, Series 2011 imposed a fee of $.20 for each disposable
paper bag provided to a customer by a grocer, and
WHEREAS, on July 6, 2021, the Colorado General Assembly passed Colorado House Bill
21-1162, also known as the “Plastic Pollution Reduction Act” (“the Act”) which imposed similar
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restrictions on the use of plastic bags as Ordinance No. 24, Series of 2011, expanded the
applicability of plastic bag restrictions to other types of retailers, and additionally placed
restrictions on the use of expanded polystyrene food containers effective July 1, of 2024, and
WHEREAS, the City Council finds that restrictingthe use of single-plastics consistent with
the Act will support adopted City environmental and climate policies, and mitigate the harmful
effects of such materials on our natural environment, and
WHEREAS, this ordinance is intended to replace Ordinance No. 24, Series of 2011, and
amend Chapter 13.24 of the City of Aspen Municipal Code, to replicate the requirements of the
Act regarding the remittance and distribution of fees collected pursuant to Chapter 13.24 of the
City of Aspen Municipal Code and add restrictions called for by the Act on the use of expanded
polystyrene food containers as part of the City of Aspen Municipal Code; and
WHEREAS, the City Council has determined that the health, safety and welfare of the
citizens, residents, and visitors of the City of Aspen will be served by this Ordinance, which will
regulate the distribution of single-use plastic products within the City.
NOW, THEREFORE, BE IT ORDAINED BY THE CITYCOUNCIL OF THE CITY
OF ASPEN, COLORADO:
Section 1.
Chapter 13.24 of the City of Aspen Municipal Code shall be amended as follows:
13.24.010– Definitions
Section 13.24.010 shall be amended to include the definitions set forth in the Plastic Pollution
Reduction Act, Colo. Rev. Stat. section 25-17-503, as it may be amended from time to time.
13.24.90 Repeal of Ordinance 24, Series of 2011
(1) Prior to May 1, 2023, the City shall retain its prohibitions on disposable plastic bags
applicable to grocers established by Ordinance 24, Series of 2011 and set forth in sections
13.24.020 through 13.24.080 of the City of Aspen Municipal Code.
(2) Ordinance 24, Series of 2011 shall be repealed effective May 1, 2023.
13.24.100 – Single-use plastic carryout bag prohibition
(1) Subject to Section 13.24.110, on and after January 1, 2024, a store or retail food
establishment shall not provide a single -use plastic carryout bag to a customer, except
that a retail food establishment need not comply with this section if the retail food
establishment:
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a. Prepares or serves food in individual portions for immediate on or off-premises
consumption; and
b. Is not a grocery store or convenience store.
(2) (a) Subject to the carryout bag fee applied to single-use plastic carryout bags in section
13.24.110, a store or retail food establishment may provide a single-use plastic carryout
bag to a customer on or before June 1, 2024, if the single-use plastic carryout bag was
part of the store’s or retail food establishment’s inventory before January 1, 2024.
(3) This subsection (2) is repealed effective September 1, 2024
13.24.110 – Carryout bag fee – disposition of money
(1) (a) On and after May 1, 2023, and before January 1, 2024, a store may provide a
customer with one or more recycled paper carryout bags or single-use plastic carryout
bags at the point of sale only if the customer pays a carryout bag fee of twenty cents
($.20) per recycled paper carryout bag or single-use plastic carryout bag. For each
carryout bag or single-use plastic carryout bag fee collected pursuant to this section, the
shore shall:
(I) Remit, in accordance with subsection (3)(d) of this section, sixty percent (60%) of
the first ten cents ($.10) and the remainder of the fee to the City which shall use
the remitted fee to pay:
i. Administrative and enforcement costs incurred as a result of this section
ii. Costs associated with any recycling, composting, or other waste diversion
programs and related outreach and education activities, and
(II)Retain forty percent (% 40) of the first ten cents ($.10) of the fee, which portion
of the fee does not count as revenue for the purpose of calculating sales tax.
(III) The carryout bag fee set forth in subsection (1)(a) of this section does not apply
to a customer that provides evidence to the store that the customer is participating
in a federal or state food assistance program.
(b) This subsection (1) is repealed, effective September 1, 2024.
(2) (a) On and after January 1, 2024, a small store may provide a customer with one or more
recycled paper carryout bags at the point of sale only if the customer pays a carryout bag
fee of twenty cents ($.20) per recycled paper carryout bag. For each carryout bag or
single-use plastic carryout bag fee collected pursuant to this section, the shore shall:
(I) Remit, in accordance with subsection (3)(d) of this section, sixty percent (60%) of
the first ten cents ($.10) and the remainder of the fee to the City which shall use
the remitted fee to pay:
i. Administrative and enforcement costs incurred as a result of this section
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ii. Costs associated with any recycling, composting, or other waste diversion
programs and related outreach and education activities, and
(II)Retain forty percent (% 40) of the first ten cents ($.10) of the fee, which portion
of the fee does not count as revenue for the purpose of calculating sales tax.
(b) The carryout bag fee set forth in subsection (1)(a) of this section does not apply to a
customer that provides evidence to the store that the customer is participating in a federal
or state food assistance program.
(c) (I) Beginning January 1, 2024 and ending June 1, 2024, a store may provide a
customer with a single-use plastic carryout bag at the point of sale for the carryout bag
fee described in subsection (2)(a) of this section only if the single-use plastic carryout bag
is within the store’s remaining inventory pursuant to section 13.24.100(2)(a). The store
shall remit the fee collected pursuant to this subsection pursuant to subsection (2)(a) of
this section.
(II)This subsection (2)(c) is repealed effective July 1, 2024.
(3) In providing carryout bags for a fee pursuant to this section a store shall:
(a) For each customer provide on the customer’s transaction receipt a record of the
number of carryout bags provided as part of the transaction and the total amount of
fees charged for the carryout bags provided, itemized by type of carryout bag;
(b) Not refund to the customer any portion of the carryout bag fee, either directly or
indirectly, or advertise or otherwise convey to customers that any portion of the
carryout bag fee will be refunded;
(c) Conspicuously display a sign in a location inside or outside the store, which sign
alerts customers about the carryout bag fee; and
(d) (1) On a quarterly basis starting April 1, 2024, remit from the total amount of
carryout bag fees collected in the previous quarter the amount that is owed to the
City’s finance department. A store need not remit carryout bag fees collected in any
quarter in which the collected fees total less than twenty dollars ($20.00). The store
shall retain those collected fees until the store has more than twenty dollars ($20.00)
worth of collected fees to remit and shall remit those fees as part of the next quarterly
remittance.
13.24.120 – Prohibitions on use of expanded polystyrene food containers
(1) Except as provided in subsection (2) of this section, effective January 1, 2024, a retail
food establishment shall not distribute an expanded polystyrene product for use as a
container for ready-to-eat food.
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(2) If a retail food establishment purchased expanded polystyrene products before January 1,
2024, the retail food establishment may distribute any remaining inventory of the
expanded polystyrene products then purchased for use as containers for ready-to-eat food
until the inventory is depleted.
13.24.130 –Voluntary Opt –In
Any store or business with a City of Aspen Business license may voluntarily opt into
the provisions of this Chapter and apply the ban and carryout bag fee to its business by
applying with the City of Aspen Environmental Health Department.
13.24.140 –Audits
(1) Each Store shall maintain accurate and complete records of the carryout bag fees
collected, the number of single use plastic carryout bags and recycled carryout bags provided to
customers, the form and recipients of any notice required pursuant to this Chapter, and any
underlying records, including any books, accounts, or invoices, or other records necessary to
verify the accuracy and completeness of such records. It shall be the duty of each grocer, store,
and retail food establishment to keep and preserve all such documents and records, including any
electronic information for a period of three (3) years from the end of the calendar year of such
records.
(2) If requested, each store, and retail food establishment shall make its records
available for audit by the City Manager or designee during regular business hours in order for the
City to verify compliance with the provisions of this Chapter. All such information shall be
treated as confidential commercial documents.
13.24.150 -Enforcement -possible penalties.
(1)Violations of any of this Chapter shall subject a store and retail food
establishment to the penalties set forth herein:
(a)If it is determined that a violation has occurred, the City shall issue a
warning notice to the store or retail food establishment for the initial
violation.
(b)If it is determined that an additional violation of this chapter has occurred
within one (1) year after a warning notice has been issued for an initial
violation, the City shall issue a penalty assessment against the violator.
The penalty shall not exceed:
i.One hundred dollars ($100.00) for the first violation after
written warning
ii.Two-hundred dollars ($200.00) for the second violation
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after written warning
iii.Three-hundred dollars ($300.00)for the third violation in
the same calendar year as the first and second violation.
iv.All subsequent violations shall require a mandatory court
appearance by the violator, and such penalty as may be
determined by the Court pursuant to Section 1.04.080.
(c)No more than one (1) penalty assessment shall be issued upon the same
violator within a seven (7) day period.
(d)If a payment of any amounts of the carryout bag fee to the City is not
received on or before the applicable due date, penalty and interest charges
shall be added to the amount due in the amount of:
i.A penalty of five percent (5%) of total due, not to exceed
ten dollars ($10.00) each month.
ii.Interest charge of one percent (1%) of total penalty per
month.
(2)The City may seek injunctive relief to enforce a violation of this Chapter against
a store or retail food establishment.
13.24.160– Exemptions
(1) Nothing in this Chapter prohibits or limits the use of any material used in the packaging
of a product that is regulated as a drug, medical device, or dietary supplement by the food
and drug administration in the United Statement Department of Health and Human
Services under the “Federal Food, Drug, and Cosmetic Act”, 21 U.S.C. Sec. 321 et seq.,
as amended, or any equipment and materials used to manufacture such products.
(2) Retail food establishments located within a school shall be exempt from the provisions of
this Chapter.
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:
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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.
INTRODUCED AND READ, as provided by law, by the City Council of the City of Aspen on the
28h day of February 2023.
ATTEST:
_____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
FINALLY,adopted, passed and approved this 14th day of March, 2023.
ATTEST:
_____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
APPROVED AS TO FORM:
_____________________________
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James R. True, City Attorney
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Page 1 of 2
Resolution #025, Series of 2023
AH Credits - Policy Resolution
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Ben Anderson, Deputy Director of Community Development
THROUGH: Phillip Supino, Community Development Director MEMO DATE: February 18, 2023
MEETING DATE: February 28, 2023
RE: Affordable Housing Credits - Land Use Code Amendment
Resolution No. 025, Series of 2023
Policy Resolution – Public Hearing
REQUEST OF COUNCIL: Council is asked to review and approve the Policy Resolution
pursuant to Section 26.310.020(A). A Policy Resolution does not amend the Land Use
Code. Instead, it gives formal direction to city staff to initiate the process for amendments
to the Land Use Code in pursuit of City Council policy direction.
SUMMARY AND BACKGROUND: At a Work Session on December 12, 2022, Council
and staff discussed the Affordable Housing Credits program. For more than 10 years,
this program has successfully encouraged private sector affordable housing
development. Recent trends in Aspen’s development context have required analysis of
the program’s effectiveness in continuing to be a desirable incentive in developing new
AH units by the private sector. Staff has been working with a consultant team from Design
Workshop in analyzing the program and in thinking about possible improvements.
At the 12/12 Work Session, staff provided a summary of our findings to this point in our
analysis. Staff’s memo from this Work Session and a supporting memo from Design
Workshop are included with this memo. In the discussion on 12/12, Council provided
support for further consideration of a variety of possible responses – with a primary focus
on strategies that could bring more flexibility to the types of projects that could be eligible
for AH Credit issuance. The direction provided at the Work Session is continuing to be
evaluated, but the proposed amendments will generally be directed by the feedback
previously received.
Two items presented at the 12/12 Work Session will not be considered further under this
Policy Resolution. First, Council was very clear that they were not interested in
considering Aspen AH Credits projects outside of the Urban Growth Boundary. This will
not be pursued further at this time. Second, while staff continues to believe that City of
Aspen efforts to bring security to the value of AH Credits remains one of the most
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Page 2 of 2
Resolution #025, Series of 2023
AH Credits - Policy Resolution
important improvements to the program, changes in this area will be complex and will
require coordination across City departments. At this time, we are not proposing the
pursuit of direct involvement from the City of Aspen in the AH Credits market. Staff will
continue to evaluate this specific topic, but any proposals would not be included in this
particular amendment process.
CONCLUSION AND NEXT STEPS:
Approving the Policy Resolution would not approve code amendments or signal eventual
approval of the amendments. The Policy Resolution allows the typical process for a LUC
amendment to proceed as described by code. Council can then fully consider the
proposal comprehensively, in the context of public outreach, research, analysis, and
recommendation from staff and consultants.
Staff will continue to work on public engagement, analysis, and development of a draft
ordinance. Following the policy resolution hearing, staff will return to Council with a
proposed Ordinance. Staff anticipates that First Reading would likely be pursued in May
of 2023.
RECOMMENDATIONS:
Staff Recommends Council approve Resolution #025, Series 2023, approving initiation
of possible Land Use Code amendments in support of improvements to the Affordable
Housing Credits program.
RECOMMENDED MOTION:
“I move to approve Resolution #025, Series of 2023.”
FINANCIAL IMPACTS: N/A
ENVIRONMENTAL IMPACTS: N/A
ALTERNATIVES: N/A
CITY MANAGER COMMENTS:
EXHIBITS:
Exhibit A – Staff and Design Workshop Memos from the 12/12 Work Session
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Resolution # 025, Series of 2023
AH Credits - Policy Resolution
Page 1 of 2
RESOLUTION #025
SERIES OF 2023
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL ADOPTING
POLICIES AUTHORIZING AMENDMENTS TO CHAPTER 26.540,
CERTIFICATES OF AFFORDABLE HOUSING CREDIT; 26.470, GROWTH
MANAGEMENT QUOTA SYSTEM; AND OTHER SECTIONS OF THE LAND
USE CODE AS NECESSARY IN SUPPORT OF IMPROVEMENTS TO THE
AFFORDABLE HOUSING CREDITS PROGRAM AND THE FURTHER
ENCOURAGEMENT OF AFFORDABLE HOUSING DEVELOPMENT.
WHEREAS,pursuant to Section 26.310.020(A), a Policy Resolution is required to
initiate amendments to the City of Aspen Land Use Code; and,
WHEREAS,the Land Use Code requires periodic amendments to ensure it supports
adopted City policy, is aligned with the community vision outlined in the Aspen Area
Community Plan (AACP), and responds to changes in the community and development
context; and,
WHEREAS,pursuant to Section 26.310.020(A), during a City Council Work
Session meeting on December 12, 2022, the Community Development Department
received direction from City Council to pursue amendments to the Certificates of
Affordable Housing Credit program in support of City Council’s affordable housing goals;
and,
WHEREAS, Chapter 26.540, Certificates of Affordable Housing Credit; Chapter
26.470, Growth Management Quota System, and other sections of the Land Use Code as
necessary, will be proposed for amendments in furthering City Council’s affordable housing
goals; and,
WHEREAS, These amendments would bring additional flexibility, clarity, and
efficacy to the Affordable Housing Credits program; and,
WHEREAS,pursuant to Section 26.310.020(B)(1), the Community Development
Department, following approval of this Policy Resolution will conduct Public Outreach
with the public and technical stakeholders in the development community; will receive
recommendation from the Planning and Zoning Commission in a public hearing; and will
propose an Ordinance to be considered at First and Second Reading; and,
WHEREAS,this Resolution does not amend the Land Use Code, but provides
direction to staff for amending the Land Use Code; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary for
the promotion of public health, safety, and welfare.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN AS FOLLOWS:
Section 1: Overall Code Amendment Objectives
The objectives of these code amendments are to:
1. Provide additional flexibility and incentive within the AH Credits program.
2. Provide clarity in the application of code provisions to the reality of the AH
development context.
3. Create new opportunities for the development of affordable housing.
Section 2: Topics for Potential Code Amendments
1. Allow Category 5 and Resident-Occupied (RO) units to be eligible for AH Credits.
2. Allow dormitory and co-housing unit designs to be eligible for AH Credits.
3. Clarify the relationships between the AH Credit program and relevant APCHA
requirements related to rental and ownership units.
4. Create a path of flexibility in utilizing AH Credits as an incentive related to
resolving expiring deed restrictions and in encouraging right-sizing and mobility
within the APCHA system.
5. Expanding the eligible area for AH Credits projects to include the full extent of the
Urban Growth Boundary.
Section 3: Other Amendments as Necessary
Other amendments may be required to ensure coordination between the sections identified
above and other sections in the LUC which may not have been anticipated.
Section 4:
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 resolutions or ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded under
such prior resolutions or ordinances.
Section 5:
If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall
be deemed a separate, distinct, and independent provision and shall not affect the validity of
the remaining portions thereof.
FINALLY,adopted this 28th day of February, 2023.
______________________________________
Torre, Mayor
ATTEST:APPROVED AS TO FORM:
_______________________________________________
Nicole Henning,City Clerk James R True, City Attorney
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MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Ben Anderson, Deputy Director, Community Development
THROUGH: Phillip Supino, Community Development Director
MEMO DATE: December 5, 2022
MEETING DATE: December 12, 2022
RE: Work Session Discussion – Certificates of Affordable Housing
Credits Program and a Specific Question Related to Affordable
Housing Mitigation for Redevelopment Scenarios.
REQUEST OF CITY COUNCIL:
Council is asked to review staff’s memo regarding the Certificates of Affordable Housing
Program and related materials, including an analysis of aspects of the program provided
by Design Workshop (Exhibit A).
While the AH Credits Program is the focus of the Work Session, the staff memo
additionally discusses a topic that arose during the Moratorium related to affordable
housing mitigation and the consideration of a further deferment or reduction of mitigation
fees for full-time, local, residents in residential redevelopment scenarios.
At the Work Session, Council will be asked to discuss and provide direction on potential
changes to the Land Use Code in response to these issues.
SUMMARY AND BACKGROUND:
The Certificate of Affordable Housing Credits program is an Aspen specific tool that is
intricately intertwined with our growth management and affordable housing mitigation
requirements in the Land Use Code (LUC). The program was conceived as a mechanism
to encourage private sector development of affordable housing and is importantly
dependent upon Aspen’s long legacy of requiring new development to provide the
housing needs generated by its impacts.
Since its inception in 2010, the program has been successful - housing for 124 FTEs has
been created and units housing an additional 54 FTEs either have Land Use (LU)
approval or are currently in review. These units have been developed by the private sector
with little or no cost to the City of Aspen. This was the ultimate intent of the program.
As it was initially conceived and functioned until recently, the program has produced small
scale projects with condominiumized units that have been sold to owners through
APCHA’s lottery system. The developers who built projects then sold their credits in
Exhibit A - Resolution #025, 2023
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fractional increments in the market (in some cases over years) to residential or small
commercial projects that had mitigation requirements.
The last few AH projects that have received AH Credits have started to reflect new trends
in the affordable housing market and related general development context:
1) AH Credits projects cannot be profitable utilizing the sale of units to APCHA
qualified owners through the lottery system.
2) Instead, units – or entire projects are being sold to employers who then rent the
units to their employees at APCHA rental rates. Importantly, these sales to
employers are not bound by APCHA sales price limits and are instead priced
by market forces.
3) It has been revealed to staff, that some AH units created by the program are
being leased to specific employers at market rate prices. The employer then
rents the unit to their employees at APCHA rental rates.
4) Some units or entire projects are being held by the developer - who is then
renting to APCHA qualified tenants or to employees related in some way to
other businesses they have interest in.
5) The incremental sale of fractional credits to meet small mitigation requirements
has almost entirely dried up.
6) Instead, large commercial and lodge projects have either developed AH
projects to meet their own mitigation needs or have purchased large batches
of credits from other developers. These credits have essentially been pulled
out of the market – but will eventually be extinguished as mitigation
requirements.
These trends are objectively neither good nor bad but reflect new realities that were not
fully conceived of at the origination of the program.
Current concerns about the program
While the program has been unquestionably successful as creating AH units at no
financial cost to the City, long-standing questions about AH Credits and the intersections
with the new trends identified above – raise concerns:
• The success of the AH Credits program to produce new units is dependent on the
continued development growth in our residential, commercial, and lodge sectors.
Without this growth, there is not sufficient demand for the resulting AH Credits.
Members of City Council and the community concerned about Aspen’s growth
patterns continue to raise reservations about this fundamental relationship.
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• It has been expressed that the AH Credit program serves as an outlet that allows
developers of larger commercial and lodge projects to not provide on-site AH units
for employees – which for some in the community should be a primary outcome of
any affordable/employee housing.
• While AH Credits projects have recently been completed and more are in the
pipeline – there is an acute shortage of AH Credits in the market to meet mitigation
requirements for residential and small commercial projects. This has resulted in
the need for a process with Council to request Fee-in-Lieu in meeting mitigation
requirements for projects that otherwise would have used credits. This
development also introduces additional procedural delays for owners seeking to
expand or redevelop their property and administrative burdens for staff already
busy with significant workload constraints.
• There is a lot of effort and focus placed on the Credits program by staff and the
development community. It requires work at several moments in the development
process both for projects that are developing AH units and for projects that have
mitigation requirements. At times there are questions if it is worth the effort; if
enough AH units are being created through the program to justify these efforts.
Staff acknowledges these concerns and more with the AH Credits program. We feel
strongly that there are improvements that could be made to better implement the program
and use the tool to encourage more AH projects toward completion. Most importantly,
despite these very real challenges, we see evidence in the past success of the program
and the opportunities that expansion and increased flexibility of the program could offer.
In short, we think the program has and could do more in shifting the responsibility of
production of affordable housing away from the City of Aspen. The discussion below
illuminates some of the possible changes to the program that could be made.
STAFF DISCUSSION:
In framing this discussion, staff has made an important assumption based on previous
Council direction:
The Certificates of Affordable Housing Credits Program has successfully
encouraged private sector production of affordable housing units and Council
desires to continue to improve and promote the program.
If Council wishes to discuss this basic premise, staff will be prepared for a more general
discussion before we get into specific policy or tactical changes. If not, the discussion is
planned to focus on the topics identified below and staff will ask for direction from Council
on each of the Policy Objectives and Possible Tactics identified.
The identified objectives and tactics are a result of staff and consultant analysis. This
analysis has consisted of research of practices utilized by other communities in the
development of affordable housing; interviews with local employers, developers, and
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representatives of financial institutions; and the creation of case studies utilizing specific
Aspen properties and producing pro forma for private sector AH development scenarios.
Certificates of Affordable Housing Credits - Policy Objectives
1) Encourage and provide flexibility in the development of diverse unit types.
Rationale:
The community, through APCHA regulations and the Land Use Code, has encouraged or
discouraged different kinds of AH units over the years. One of the mechanisms used
more recently to produce the types of units the community desires has been the AH
Credits program. Currently, credits can only be generated from units that are Categories
1-5, and units that are studios, or contain defined bedroom counts (generally, 1-3
bedrooms per unit). As staff and our consultant team talked with community members
during the moratorium outreach, and with organizations and developers during more
recent interviews, desire for flexibility in unit types and configurations was clearly
expressed. Changes to these regulations could generate interest in AH projects that are
not currently being contemplated and in the encouragement of potential redevelopment
or renovation of projects that are bound by expiring deed restrictions.
Possible Tactics:
• Allow for the issuance of AH Credits to the development of Resident Occupied
(RO) units. Currently credits are only available to units that are deed restricted at
Category 5 and below. This tactic could be coupled with controls on Category mix
within a development to ensure a balance commensurate with community needs.
• Allow for the issuance of AH credits for dorm-style or co-housing unit
configurations. Currently credits are only available to studio units and units with
designated bedrooms.
• Consider mechanisms of AH Credit Issuance for housing that is designed or
programmed for seasonal employee housing.
2) Acknowledge and respond to the needs of private and public sector
employers in encouraging the development of affordable housing.
Rationale:
The AH Credits program, as currently designed, is limited to the issuance of credits for
projects that are built by private developers operating independently. In our interviews, it
was clear that private sector, non-profit, and quasi-government (examples: Aspen School
District or Aspen Valley Hospital) have potential interest in the credits program – either in
pursuing projects themselves or in partnership with developers. There are two issues to
resolve: 1) The language in the LUC currently prohibits non-profits or quasi-governmental
organizations from pursuing credits – either independently or in partnership; and 2) There
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is uncertainty (either real or perceived) for organizations in pursuing deed-restrictions with
APCHA in the limitations or inflexibility that may be present that would preclude them from
most effectively housing their employees.
Possible Tactics:
• Provide clarity and flexibility to employers who establish housing for their
employees in the relationship between APCHA deed restriction requirements and
the potential issuance of credits.
• Remove or modify the current restriction that prohibits non-profits or quasi-
governmental organizations or organizations working in partnership with
governments to pursue AH Credits in the development of AH projects.
• Provide clarity to APCHA regulations and the Land Use Code in the allowed
relationships of the developer to future owners and residents (employer v. tenant
owners, etc.).
3) Acknowledge the changing economic and housing dynamics, and the
shared housing challenges in the Upper Valley within the AH Credits
program.
Rationale:
Acquiring land and building is increasingly expensive throughout the Roaring Fork Valley,
but Aspen is prohibitively so. Actions in this area could provide flexibility in the locations
where AH projects pursuing credits are built to identify more affordable sites that would
still offer proximity to services and employment for Aspen’s workers and families.
Possible Tactic:
• Create a new geography for where AH projects can pursue AH credits. Currently,
the UGB provides the boundary where AH projects can pursue AH Credits.
Alternatively, a new boundary, like the Aspen School District boundary, could be
used to further encourage and make possible the development of AH projects (that
could be granted Aspen’s AH credits).
4) Increase the usefulness of the value of AH Credits in an AH project’s
financial pro forma.
Rationale:
Staff has heard for years concerns from the development community about a fundamental
shortcoming in the AH Credits program: Banks and other financial institutions do not
recognize or have significant difficulty in recognizing the value of AH Credits in a project’s
proforma. While the eventual value of the AH Credits can be a significant stream of
revenue, this value is often ignored in evaluating a project’s “equity stack.” What this
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means is that only certain types of developers carrying out smaller projects that do not
need institutional financing can make a Credits project work.
Possible Tactics:
• Identify mechanisms to bring more usefulness to the value of AH Credits in an AH
project’s financial proforma. This could involve the City guaranteeing the value of
a credit or a portion of a credit – or the City becoming a purchaser of AH Credits.
Either of these would likely involve the use of the 150 Fund or other City financial
assets.
• Consider alternatives in the timing of the issuance of AH Credits within an AH
project’s development timeline.
5) Consider the possible role of AH Credits as an incentive for actions within
the larger affordable housing program.
Rationale:
“Infill” development, “development neutral” AH, encouraging the most efficient use of
current AH housing stock, and resolving the expiring deed restriction issue, all require
creative and likely, property by property evaluation of potential solutions. This set of
potential tactics would create flexibility in the AH Credits program using Credits as one of
the tools in the tool belt in incentivizing desired outcomes across Aspen’s AH programs.
Possible Tactics:
• Utilize AH Credits as one of the tools available in encouraging the conversion of
expiring deed restrictions to permanent affordability.
• Identify and implement areas of increased flexibility in the issuance of AH Credits
for development neutral AH projects (conversion of existing market-rate units).
• Explore the possible role of AH Credits as an incentive in APCHA’s right-sizing
efforts or in encouraging mobility of owners from Category units to RO units.
6) Even with all of the other tools and incentives available, additional, direct
subsidy may be necessary to make AH projects an attractive alternative to
market-rate development.
Rationale:
It has become the case that the combination of costs related to land acquisition and
construction in the Aspen-area have become true obstacles in the development of the
projects that the AH Credits program was established to encourage. While staff has
worked over the last couple of years to increase the Fee-in-Lieu in response to these
costs (setting the approximate value of AH Credits), it has not been enough. While a
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subsidy would change the very nature of the AH Credits program from a pure market
incentive to a form of a private-public partnership, it may still deliver AH units at a lower
community cost than the City-as-developer model.
Possible Tactics:
• Identify possible funding sources for direct subsidy (on top of the credits program)
to encourage private sector AH projects.
• Create an RFP process or simply a list of standards for projects that would be
eligible for a direct subsidy.
Response Previous Questions about the AH Credits program from City Council
In recent discussions with City Council, two questions arose that staff agreed we would
respond to during this work session:
1) Do we have an understanding of whether some holders of credits are
speculating on the supply and demand of credits market and the price that
credits are being sold at?
Staff has tracked the sales price of credits over time. With a few exceptions,
credits have generally sold for prices very near the equivalent of established
Fee-in-Lieu values. Recently, the larger issue is that unextinguished credits
are simply not available for sale. Staff has no basis to believe that this dynamic
is a result of credits holders waiting until the market delivers a higher return.
Based on staff discussions with some credit holders, it is more likely that the
need for credits to mitigate AH requirements for their own future development
activities outweighs the financial incentive of bringing the credits to market.
2) What kinds of projects can Credits be made available in supporting?
Credits are issued to projects that have a Certificate of Occupancy and a
recorded deed restriction that complies with APCHA’s requirements. Projects
can be new construction or converted free-market units that meet APCHA
development standards. After that, the following scenarios for who is living in
the units are all legitimate under current code:
• Projects that are sold to APCHA qualified owners through the lottery
system.
• Projects that are held by the developer and rented to qualified APCHA
renters.
• Projects or units that are sold to employers to rent to employees under
APCHA guidelines
• Projects or units that are leased to employers that then rent to
employees under APCHA guidelines.
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Questions for Council:
1) Does Council desire staff to propose improvements to the AH Credits program?
2) What are the Policy Objectives or Possible Tactics that seem most important
or in line with Council expectations?
3) Are there Policy Objectives or Possible Tactics that Council does not wish for
staff to pursue further?
4) Are there any ideas that Council has for possible improvements that staff has
not identified?
Next Topic – Affordable Housing Mitigation – further deferment or reduction for
resident locals who pursue redevelopment of their property.
During the moratorium outreach and discussions with Council, and in response to
elements of Ordinance #13, Series of 2022 that had the effect of increasing AH mitigation
requirements for residential redevelopment scenarios, suggestions arose that local,
resident owners should be acknowledged in this system differently than other property
owners. Staff suggested and Council agreed that we would not respond to this issue
during the moratorium but would revisit later in 2022.
There were two scenarios that were presented to staff. The first was a resident who
redeveloped their home and continued to live in it following redevelopment. In this case,
the suggestion was that AH mitigation requirements, in combination with the already
existing deferral agreement, could be reduced for each year they continued to live full-
time in their home.
The second scenario looks backward at the years that a full-time resident has lived in
their home. The proposal in this case is that a resident would receive a “credit” towards
future redevelopment mitigation requirements based on the number of years they have
lived in their home. The argument here is that these residents have already provided
“mitigation” by housing resident locals and in doing so have contributed to the larger
housing program over time. In this suggestion the credit would be available to the
property regardless of who eventually redeveloped the home.
Staff’s view on the matter is that the existing deferral agreement is fair response to the
concern that the City’s mitigation requirements are overly burdensome on local, resident-
owners. There is also the potential that such a credit, either retroactive or applied after
redevelopment and occupancy, could constitute a financial benefit, aside from the
deferred AH mitigation costs, conferred by the City upon specific residents and properties.
Additionally, on the surface, both scenarios would be difficult to administer fairly and
consistently over time. For these reasons, staff has concerns about the pursuit of either
of these basic frameworks.
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If Council were to desire staff to pursue land use code changes in support of either or
both scenarios, it should be acknowledged that the difficulty would be in getting the details
right and it will take some time for further analysis.
Question for Council: Does Council desire staff to investigate this topic further and return
to Council with a proposal for a Code Change in response?
CONCLUSION AND NEXT STEPS:
Staff and our consultant team are aligned in our perspectives on the role of the Affordable
Housing Credits program in Aspen’s larger efforts of AH development and on the current
status of the program:
1) It has successfully produced AH units over time.
2) The program has fundamental challenges, most notably:
• The inability of financial institutions to recognize the value of AH credits
in a project’s financial pro forma.
• The AH Credit’s market health depends on a close and aligned
relationship between new market rate development (commercial,
lodge, residential) and new, private sector AH development. When not
aligned, shortages and surpluses in the market result – and have the
potential to undermine the program.
3) Since the program’s inception, there have been important changes in the local
development context – particularly related to land acquisition and development
costs. Additionally, the housing-employee nexus is presenting new and
unprecedented challenges for employers.
4) The extreme nature of Aspen’s real estate context requires tools not found in
other communities in the development of AH.
5) We should be providing as many tools and as much flexibility as we can in
encouraging both developers and employers to participate in the creation of
new AH units.
Encouragement of private sector AH development requires a layering or a stacking of
incentives, regulatory and process flexibility, and perhaps, direct subsidy at some level.
It is staff and the consultants’ perspective that the AH Credits program is an important
part of this “stack”, but it needs improvements to its tools and additional flexibility in its
application.
Should Council desire to see changes to the Land Use Code in response to the
discussion, Staff would return to Council in 2023 to initiate a formal Code Amendment
process.
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RECOMMENDATIONS: Staff recommends that Council provide direction for potential
Land Use Code changes on both the AH Credits program and AH mitigation topics.
EXHIBITS:
A – Memo, Design Workshop – AH Credits Program Analysis
B – Letter from Headwaters Housing Partners in support of program improvements.
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MEMORANDUM
To: City of Aspen, Phillip Supino, Ben Anderson, and Garrett Larimer
From: Design Workshop, Jessica Garrow and Eric Krohngold
Date: December 5, 2022
Project Name: Aspen Moratorium Support
Project #: 6829
Subject: Affordable Housing Credits Analysis
Overview and Background
This summary document outlines the opportunities and challenges of the City of Aspen’s Certificates of
Affordable Housing Credits Program (Section 26.540 of the Land Use Code). This award-winning program
was originally established in 2010 through a citizen initiated code amendment. The program created a new
system to encourage the private development of affordable housing.
The city has long required affordable housing mitigation for most development, and this program created a
mechanism for a developer to build affordable housing without a mitigation requirement. Based off the
principles of a transferable development rights program, the credits program allows a private developer to
build new affordable housing units and sell a “certificate of affordable housing credit” (herein after called
“housing credit”) to another developer who has a separate housing mitigation requirement. This program
enables the housing developer to rent or sell the housing units to qualified local working residents and to
separately sell the housing credit, creating an additional revenue stream for the project that would help
make it financially viable.
Since its inception, the program has resulted in the creation of housing for 124 FTE (mix of categories), the
most recent being completed in 2022. Additionally, projects proposing 54 FTEs have LU approvals or are in
review. The housing credits created from these units has been used to mitigate single family homes,
lodges, commercial spaces, and multi-family units instead of those project building one-off housing units or
providing a cash-in-lieu payment.
Since the original program, some modifications were made related to the units and entities that qualify for
the housing credits. The current program includes the following key elements:
• Credits are only given to affordable housing units that are created on a voluntary basis (no
mitigation obligation).
• Any affordable housing units that were previously approved or built as part of a Development
Order are not eligible. This means that if a project included more affordable housing units than
was required before the housing credits program was created, those units cannot be “converted”
into housing credits after the fact.
• Credits may only be established from housing units that have an adopted cash-in-lieu rate, which
is currently Categories 1 – 5 (see Section 26.470.050.e of the Land Use Code).
• Credits can be transferred between Categories by following the conversion methodology in the
Land Use Code.
Landscape Architecture
Planning
Urban Design
Strategic Services
120 East Main Street
Aspen, Colorado 81611
970.925.8354
designworkshop.com
Exhibit A – Design Workshop
AH Credits Program Analysis
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Page 2
• Dormitory units are not eligible in the program – only studio and bedroom units are eligible.
• Credits may only be established from projects within the City of Aspen Boundaries.
• Units that are created by the City of Aspen, Pitkin County, APCHA, or any similar governmental or
non-governmental organization that receives public funds for the purpose of building affordable
housing units are not eligible. This means that any non-profit that receives public funds through
bonding, taxes, assessments, tax breaks, grants, and the like for the development of affordable
housing is not eligible.
• All units must be approved through the city’s Growth Management Quota System and deed
restricted through APCHA.
• Credits can be issued to a developer at the time of the Certificate of Occupancy, or may be
phased at the completion of a foundation inspection, framing/roofing inspection and final
Certificate of Occupancy if the developer provides a financial guarantee for the project’s
completion.
Program Challenges
While the program has resulted in a significant number of new affordable housing units in the community,
the number of projects utilizing the program has decreased over the years. At the same time, the need for
affordable housing in the community has not decreased, and new development that generates housing
mitigation obligations has continued. The result is a program that continues to have great potential but has
structural and financial challenges.
Lack of Available Credits
While there are credits for approximately 62 FTEs (full-time equivalents) that have been established but not
utilized by other development, there are currently no housing credits available for purchase. Because
credits are sold on the free-market, it is up to the credit holder to determine if and when they want to sell
and at what price. Based on information gathered during project interviews, a few individuals are holding
onto the remaining credits with the intention of utilizing them for future project needs. This means that
current projects with a housing mitigation requirement, even smaller ones like the development of a single-
family home, are not able to buy and use a housing credit for their project. This has resulted in the need for
projects to utilize other methods, most frequently cash-in-lieu, which does not result in the immediate
development and mitigation of their housing impacts and pushes the burden of providing new affordable
housing units onto the City of Aspen.
Inability of Financial Institutions to Value Credits
Despite significant early successes in the program, what has become clear is that most developers of
affordable housing credits projects have not been able to utilize traditional financial institutions to help fund
projects. Because the program is unique to the City of Aspen and no other similar program exists in the
country, national financial institutions do not have a process for lending against housing credit projects. The
primary challenge lies in a developer’s ability to secure debt for the construction of a project. Because there
is no set or guaranteed market or value for the credits, financial institutions are unable to recognize them as
collateral, and thus are unable to lend against a project that includes them as part of its capital stack. For
these reasons, financial institutions are unable to determine how to value the housing credits portion of a
project. This limits the number of developers who are able to pursue such projects to those who can self-
fund or draw upon local sources of private equity.
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Issuance of Credits for RO Projects
When it comes to the credits program, there are two key code sections that govern the creation of housing
credits. The first is the Housing Credits section (26.540) which outlines the overall requirements for the
projects. The second is Growth Management (26.470.080.d.7.a-d), which outlines the basic requirements
for the creation of any affordable housing units. Section 540 states that a housing credit project can be
“designated at any Category with established cash-in-lieu rates in the Housing Guidelines.” The guidelines
and the Growth Management code include cash-in-lieu rates for Categories 1- 5. This means that Resident
Occupied (RO) units are not eligible for housing credits, which limits the potential for a credits project
developer to balance their financing and cash flow needs.
Inability to Issue Credits to Non-Profit Entities
The limitation of the housing credits program related to non-profits is a bit unclear and creates an
assumption that non-profits cannot participate in the program. The language limits participation to private
developers and any governmental or non-governmental entity like a non-profit that does not receive public
funds for housing. This means that if a non-profit that might typically address issues like recreation or the
arts receives a grant to build affordable housing, they would not be able to develop a housing credit project
– they would need to self-fund that project. Conversely, if the same organization receives a grant or other
public money for their operations and separately self-funds a housing project, they would be eligible to
participate in the housing credits program. The result is confusion about how non-profits can or cannot
participate in the program.
As part of project interviews, it became clear that some non-profits are interested in developing affordable
housing units absent a housing mitigation requirement. If a private developer or employer desired to do
such a project, they would qualify for a credits project. However, it is unclear if non-profits could participate
in the development of a housing credits project in the same way a private employer would.
Land Costs, Construction Costs, and Predetermined Sale Prices
Development within the City of Aspen is amongst the costliest in the nation, due in large part to exorbitant
land and construction costs. For an affordable housing unit to qualify for a housing credit, units must be
leased or sold at APCHA designated prices. This leaves the sale of housing credits on the private market
as the only financial recourse that a developer has in order to yield a profitable project.
If a developer is unable to sell their housing credits at their desired price, then they are unable to become
financially whole for the project. This makes affordable housing development in Aspen much riskier than
traditional market-rate development where a profitable project is all but guaranteed.
Carrying Costs Relative to Review Times
The timeline of development in Aspen can be lengthy due to permitting and review times. This additional
time can have significant financial impacts on development. This added review time in conjunction with the
fact that housing credits can only be issued either once a Certificate of Occupancy is obtained, or at
intermittent times during the development process, means that there can be significant financial burden
placed on a developer to carry the project though the development process. These carrying costs can
quickly add up and make it increasingly difficult for a project to be financially feasible.
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Interview Summary
In October 2022, Design Workshop and the City of Aspen conducted interviews with two major employers
(Aspen Valley Hospital and the Aspen Ski Company), two financial institutions (Alpine Bank and ANB
Bank), and a private owner of existing multi-family units (Copper Horse and Alpina Haus) on the subject of
the Affordable Housing Credits Program. These interviews covered issues regarding the accessibility of the
Credits Program, barriers to development, and possible changes that could encourage more interaction
with the Credits Program. Key themes from these interviews are outlined below:
Lack of Guaranteed Value
All of the interviewees responded that the biggest hurdle in utilizing the current affordable housing Credits
Program is that the credits do not currently hold any guaranteed value. As a result, the credits cannot be
used as collateral to pay back loans necessary for the development of an affordable housing project.
Additionally, the lack of transparency about the number of credits in the marketplace makes it difficult to
determine how long it may take credits to sell. Some interviewees said that they are in favor of changes to
the credit program that includes the city guaranteeing the value of credits for the purpose of securing
project financing.
The financial institutions also indicated that a beneficial change to the Credits Program may be to have the
credits issued at the beginning of a project. Additional phasing for the credits before the foundation
inspection could be incorporated into the code through a mechanism to guarantee repayment of the
amount financed, such as a general obligation bond/municipal bond or letter of credit backed by the city.
Each of the financial institutions interviewed also indicated their organizations would happily issue dept on
a Credits Project within the community. Involvement in programs related to the Community Reinvestment
Act, such as the Affordable Housing Credits Program, is able to grant them higher ratings from financial
regulators due to the social benefit brings to the local community.
Limitation on Unit Types Eligible for Credits
Employers that were interviewed have experience in developing and/or acquiring housing projects within
Aspen and the Roaring Fork Valley in order to house their employees. One of the organizations expressed
frustration around the current Affordable Housing Credits Program in that dormitory style housing projects
are not currently eligible for credits. This particular employer employs primarily seasonal workers who are
currently housing themselves in market rate units throughout the Roaring Fork Valley, often commuting
from up-valley into Aspen. This employer noted that its seasonal employees would, in most cases, be
willing to live in dormitory style housing it if meant being more proximate to work. They also noted that
transitioning these seasonal workers to dormitory style housing would mean that currently occupied rental
units would likely be made available throughout the valley. The interviewee said that these if dormitory style
development projects were eligible for affordable housing credits, the project would have greater financial
feasibility and could more easily be developed. They noted that if the city and APCHA’s goal is to provide
the most affordable housing possible, then dormitory style housing should be eligible to receive affordable
housing credits when it is the most appropriate style of housing for a particular situation.
Employer Developed Housing Usage
Each of the employers interviewed expressed that any units they developed would need to be available to
their employees. These organizations, as well as others that have participated in past conversations,
expressed a specific concern that some of their staff in the most need of stable housing are those who are
seasonal workers or may not have a four-year work history. While they are desirous of developing
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affordable housing units, they would only utilize the credits program their employees, at their discretion,
could utilize the units. This ability is currently allowed as part of the Growth Management review, but
making it clearer in policy documents and the code could help alleviate these concerns.
Expanding Where Credits Projects May Take Place
Many of the interviewees pointed out that the city should explore expanding the boundary where credits
can be used to finance projects. This way more opportunities are opened up for the development of
affordable housing. Some interviewees agreed with the idea of allowing credits to be created beyond the
current urban growth boundary, but with the value of the credits being reduced so as to disincentivize
sprawl throughout the valley. They pointed out that regional solutions to housing are important but providing
credits to developments where someone still has to drive into town and exacerbating the traffic in the valley
is not the solution we need. One interviewee described this as an opportunity to create affordable housing
in areas that people desire to live, rather than forcing the credits to be used in areas of town where
affordable housing development may not fit the surrounding context.
Credits for RO Units
Another option that interviewees were interested in exploring was allowing credits for RO units. One of the
largest perceived issues impacting affordable housing is unit turnover. By developing more RO units, the
city and APCHA have the opportunity to incentivize residents of other category housing to downsize or to
move into a newer RO units, and in turn opening up their Category unit to others in the community.
Transparency
An idea that was raised during the interviews was if the city or APCHA could develop a dashboard related
to credits that would show information such as average credits available each year, how many have been
extinguished, the current value of credits, how many credits your organization may have, and other basic
market data that could help inform credit backed developed.
Quantifying the Fiscal Gap in Affordable Housing Projects
In order to understand the current viability of housing credits projects in the city, Design Workshop
analyzed development potential, costs, and revenues for three sample properties. These properties are
located in the Residential Multi-Family (RMF), Affordable Housing Planned Development (AH-PD) and
Moderate Density Residential (R-15) zone districts. These zone districts and sample properties were
selected because they are the zone districts and areas where the city has identified the most opportunity
for future affordable housing development. It is important to note that no specific property is referenced in
these, but there may be similarities to individual properties. As is seen in the individual models below, the
current housing credits program is not financially feasible for these projects, and it is more likely a property
owner would sit on an existing building and complete remodels and renovations or would develop a single-
family home.
For each scenario, Design Workshop created a basic mathematical model to understand the development
potential and the likely associated costs and revenues. This analysis leads to an understanding, at a high
level, of if a project is financially feasible for redevelopment through the Affordable Housing Credits
Program. This does not account for potential outside factors, such as individual property owner goals,
reviewing multi projects for redevelopment as part of a larger project, variables in construction financing,
and the like. The analysis takes city dimensional requirements, including potential parking requirements,
heights, setbacks, and floor areas into account, as well as required APCHA minimum unit sizes. Each
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scenario is assumed to be for-sale units that would be purchased by
APCHA qualified buyers, prioritizing Category 3 two-bedroom units,
where feasible and appropriate. When determining the value of a
Housing Credit, it was assumed the price would match the cash-in-
lieu amount for each category credit. Land and sale costs for each
property were calculated using recent sale data for comparable
nearby properties. Per square foot construction. Construction cost per
square foot were calculated using input from staff.
Residential Multi-Family (RMF)
For this zone district, the scenario assumes a lot size of 7,200sq ft,
with an allowable floor area of 9,000 sq ft, which is the middle-range
density permitted in this zone district. This model assumed 15 new
two- bedroom units, generating credits for 33.75 FTEs. It is important
to note that based on this lot size a developer would not be able to
include any additional units to get to the higher floor area because the existing parking requirements could
not likely be accommodated on the site. Figure 2 illustrates that as a
baseline, this lot type would have a Return on Investment (ROI) of
negative -51%, meaning it is not financially feasible to develop these
units through the credits program, and it is likely a property owner
would complete normal maintenance only.
Affordable Housing Planned Development (AH-PD)
For this zone district, the scenario assumes a lot size of 51,400 sq ft,
with an allowable floor area of 30,840 sq ft. This model assumed a
developer would try to maximize the potential floor area and would
develop 43 two-bedroom units, generating credits for 96.75 FTEs.
Figure 2 illustrates that as a baseline, this lot type would have a
Return on Investment (ROI) of negative -31%, meaning it is not
financially feasible to develop these units through the credits program,
and it is highly likely that a property owner would need to partner with
another organization to make the project pencil or would simply
complete normal maintenance to keep existing units in decent
condition.
Moderate-Density Residential (R-15)
For this zone district, the scenario assumes a smaller lot at 6,000 sq
ft, with an allowable floor area of 3,600 sq ft. Under current zoning, up
to four units could be built on this lot, generating credits for 9 FTEs.
Figure 3 illustrates that as a baseline, this lot type would have a
Return on Investment (ROI) of negative -40%, meaning it is not
financially feasible to develop the maximum four units through the
credits program, and it is highly likely that a property owner would
develop a free-market home.
Figure 2: AH-PD Baseline Analysis
Figure 3: R-15 Baseline Analysis
Figure 1: RMF Baseline Analysis
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Credits Program Adjustment Analysis
Given the fact that none of the financial modeling could yield a profitable affordable housing project, Design
Workshop completed an analysis of potential program adjustments using the same project scenarios.
There were no changes to the anticipated floor area or unit counts. Using ideas from interviewees as well
as staff, the following adjustments were analyzed:
• Issuing Credits for RO Units
• Allowing Credits for APCHA Category Housing Units that are Vacated
• Issuing Credits for Projects Outside of Aspen
• Allowing Credits for Dormitory Projects
• Direct Subsidies to Credits Projects
Issuing Credits to RO Projects
This adjustment would enable the creation of housing credits from projects that include Resident Occupied
(RO) housing units. Because there is no cash-in-lieu amount established for RO units, the models assumed
a value of $200,000 per RO FTE (full-time equivalent).1 While this program change alone does not create a
profitable project, it does have some potential as a viable adjustment in the AH-PD zone when coupled with
other program changes.
Program Adjustment Performance - RMF
For the RMF zone district, the analysis assumed 15 RO units, and yielded an ROI of negative -35%. While
this is an improvement from the baseline scenario, it is not enough on its own to make a project financially
viable.
Program Adjustment Performance – AH-PD
For the AH-PD zone district, the analysis assumed all 43 units would be at an RO level, and yielded an ROI
of negative -7%. This was an improvement from the baseline scenario, and indicates a potential for this
program adjustment to work in partnership with other changes.
Program Adjustment Performance – R-15
For the R-15 zone district, the analysis assumed all RO units, and yielded an ROI of negative -20%. This
was an improvement from the baseline scenario, but the monetary loss remains significant enough that a
developer would not likely move forward with the project.
Allowing Credits for Housing Units that are Vacated
This program change would provide housing credits for both the construction of an affordable housing unit,
as well as credits to account for cases in which new residents are leaving an existing housing APCHA
Category unit either to move to a smaller or different housing unit (for instance, downsizing from a three-
bedroom to a one-bedroom) or to a free-market unit. To make this financial model work, the credit is given
to a developer who is able to have an existing APCHA owner or renter move into a new unit. Another option
for this program change would be to provide that financial incentive to the individual homeowner, but that is
not possible to model within the scenarios.
1 The value of a credit is pegged to the cash-in-lieu rate for each category. The cash-in-lieu rate goes down the
higher the category. The Category 5 cash-in-lieu rate is $271582, so $200,000 was chosen because it is lower. Even
if the current Category 5 rate was used, this scenario has a negative ROI of -36% for RMF, a 1% ROI for AH-PD,
and negative -13% ROI for R-15.
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Program Adjustment Performance - RMF
The model tested the construction of 15 Category 5 units. Under this scenario a developer would receive
credits for the 15 units constructed, as well as credits for the units that were vacated by future residents.
The model assumed that all residents were living in Category 3 housing, meaning that a developer would
also receive credits equal to the 15 units vacated. When this program change is implemented, in the RMF
zone district the ROI is negative -6%, a significant increase from the baseline ROI, but still not a profitable
project.
Program Adjustment Performance – AH-PD
The model tested the construction of 43 Category 5 units. Under this scenario a developer would receive
credits for the 43 units constructed, as well as credits for the units that were vacated by future residents.
The model assumed that all residents were living in Category 3 housing, meaning that a developer would
also receive credits equal to the 43 units vacated. When this program change is implemented, in the AH-
PD zone district the ROI is 34%, resulting in a significantly profitable project that a developer would be
likely to pursue.
Program Adjustment Performance – R-15
The model tested the construction of 4 Category 5 units. Under this scenario a developer would receive
credits for the 4 units constructed, as well as credits for the units that were vacated by future residents. The
model assumed that all residents were living in Category 3 housing, meaning that a developer would also
receive credits equal to the 4 units vacated. When this program change is implemented, in the R-15 zone
district the ROI is 15%, resulting in a profitable project that a developer would be likely to pursue.
Issuing Credits for Projects Outside of Aspen
This program change would allow affordable housing projects located outside of the City of Aspen limits to
be eligible for a housing credit. For the purposes of this analysis, the scenario was limited to properties
located within the Aspen School District boundary. To determine the feasibility of this option, Design
Workshop reviewed property transaction information for areas in the district boundary. Given the high sales
prices for most locations, it was determined that this analysis should focus on the Town of Snowmass
Village, which has a slightly lower sale price per square foot than Aspen. In order to provide an apples to
apples comparison, the same zone district assumptions were used. Based on the analysis, this program
adjustment alone would not create a financially viable project in any scenario.
Cost information
Because the overall development and land costs are similar in Aspen and Snowmass village, these
scenarios resulted in an ROI that was only slightly more positive than the tested baseline scenarios, and
does not result in a financially feasible project.2
Allowing Credits for Dormitory Projects
As mentioned above, the current program does not allow credits for dormitory units, but there are
employers who are interested in developing these units for their employees. Design Workshop analyzed
how a dormitory project might work in each of the zoning scenarios. Dormitory units are required to be 300
sq ft per employee with some common spaces for amenities like kitchens, dining or living rooms, laundry,
2 RMF Baseline and Outside Aspen is negative -51%
AH-PD Baseline is negative -31% and Outside Aspen is negative -29%
R-15 Baseline is negative -40% and Outside Aspen is negative -39%
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and the like. For this analysis, the overall floor area limitation was maintained and the maximum number of
dorm units possible in that floor area was assumed. It was also assumed that these units would be for rent,
as it is most likely that an employer would develop these for their employees rather than for the general
community.
This program option is the only one that will create a financial
profit on its own in the RMF and AH-PD zone districts, though
the level of profitability depends on the Category of the
dormitory units. The financial feasibility of these program
changes result from being able to gain rental income as well as
income from the sale of the credit. It would need to be coupled
with other program changes in the R-15 zones to be financially
viable in those areas of the community.
Program Adjustment Performance - RMF
For the RMF zone district, the analysis assumes 41 dormitory
units. Under this scenario, the ROI is negative -7% for all
Category 3 units. However, when there is a mix of Category 4
and 3 units, the ROI increases to 6%, shown in Figure 4. This
potential program change is a significant increase in financial
viability from the baseline scenario.
Program Adjustment Performance – AH-PD
For the AH-PD zone district, the analysis assumes 100
dormitory units at Category 3, which does not maximize the
floor area on the site. Including 140 dorm units would maximize
the available floor area.
At 100 units, the ROI is 42% and at 140 units the ROI is 45% (at
Category 3). Moving to Category 2 units would also create
financially feasible projects at 100 or 140 dormitory units.
Category 1 is not financially viable even at 140 dormitory units.
The overall financial performance for 100 dormitory units at
Category 2 is shown in Figure 5.
Program Adjustment Performance – R-15
Given the zoning limitations in R-15 for 4 units, this limited
number of dorm units was included in the scenario analysis.
This yields a negative -12% ROI at the Category 3 level.
Figure 4: RMF Dormitory Scenario
Figure 5: AH-PD Dormitory Scenario
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Given that it is highly unlikely that a developer would build only 4
dormitory units, additional scenarios were tested to identify the
density required to make this scenario financially viable. At 6
units, the project has an ROI of 8% at Category 3, which is
illustrated in Figure 6. For Category 2 units, 8 units would be
required to gain a positive ROI (3%).
Direct Subsidies to Credits Projects
The final stand-alone scenario that was analyzed is the city
providing a direct development subsidy to a housing credit
developer. This assumed the same number of units as the
baseline scenario, which a fractional subsidy for each unit. This
program adjustment would require use of the city’s 150 fund or
other dedicated revenues for housing.
In order to complete the analysis, some assumptions about the
subsidy amount were made based on the unit type – the larger
the unit, the higher the assumed per unit subsidy. These
assumptions are illustrated in Figure 7. The level of subsidy
chosen was meant to assist in correcting the financial deficit
caused by the imbalance between per square foot construction
costs and APCHA sale costs. Levels of subsidy per bedroom
were increased by approximately $50,000 for every 200 square
feet of floor area added.
Program Adjustment Performance – RMF
As a baseline, the 15 Category 3 units in RMF would have a
Return on Investment (ROI) of negative -51%. With a subsidy of
$250,000 per unit, the ROI is better but still negative -39%.
Program Adjustment Performance – AH-PD
As a baseline, the 43 Category 3 units in RMF would have a Return on Investment (ROI) of negative -31%.
With a subsidy of $250,000 per unit, the ROI is better but still negative -13%.
Program Adjustment Performance – R-15
As a baseline, the 4 Category 3 units in R-15 would have a Return on Investment (ROI) of negative -40%.
With a subsidy of $250,000 per unit, the ROI is better but still negative -25%.
Program Adjustment Performance Compared to Buy-Downs
While the financial feasibility of the baseline scenarios is not profitable with the direct subsidy alone, the
amount of subsidy for these projects is less than a full buy-down in the upper valley. In a previous analysis
as part of the moratorium, Design Workshop analyzed the financial impact of using city funds for buy downs
in Aspen and down valley with the previously collected mitigation cash-in-lieu of $3,939,000. Based on that
analysis, the buy-down and deed restriction of 3 one-bedroom units in Aspen or 3 two-bedroom units in
Snowmass Village. These resulted in housing for fewer employees than if a subsidy to a developer is
utilized.
Figure 6: R-15 Dormitory Scenario
Figure 7: Assumed Direct Subsidy Amount
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To compare the ability of funds to generate affordable housing through unit buy-downs versus direct
development subsidies, an analysis was performed to quantify the level of subsidy required to enable a
profitable project (the target of 10% IRR was used). This analysis examined how many units of affordable
housing $3,939,000 collected from previous in-lieu-fees could create, either through buy down-downs or
developer subsidization.
Using the RMF development scenario that tested a single-family home’s redevelopment into four Category
3 2-bedroom units of affordable housing, a subsidy level of $850,000 per unit was required to yield a project
that reached 10% IRR. Using this threshold of subsidy, the $3,939,000 in funds could be used to create
approximately 4.6 2-bedroom units of housing, slightly more housing than if the funds were used for a buy-
down. It should be noted that the extent to which financial subsidy is required to yield a profitable project
will depend in large part on the cost of land and category and type of units developed.
Guaranteeing the Value of Affordable Housing Credits
The issue of Affordable Housing Credits not having a guaranteed value presents challenges in borrowing
against them to fund the construction of a project. As a result of how the affordable housing credits program
is currently operating, with credits being sold at the completion of a project at market value, financial
institution are unable to recognize them as a guaranteed form of collateral against a construction loan. To
provide financial institutions with assurance as to the value of housing credits, the City of Aspen should
explore providing a minimum guaranteed value of credits.
Two potential avenues that the City of Aspen could explore in order to provide a minimum guaranteed
value for housing credits is leveraging a portion of the 150 Fund or through revenue generated through a
bonding mechanism. The logistics of guaranteeing the value of housing credits would likely require that the
city take a more active role in the program, potentially becoming a clearing housing of sorts in which the
city would purchase and sell credits at a set value. It is recommended that the city further explore how the
150 Fund or bond revenues could be used to guarantee the value of housing credits, and the regulatory
and/or legal implications that such a guarantee could have.
Credits Program Adjustment Combinations
While some of the potential program adjustments provide a potential path to effectively increase the
utilization of the Affordable Housing Credits Program, the combination of adjustments is likely to be most
effective in creating broader interest and effectiveness of the program. Design Workshop explored different
combinations of program adjustments to understand how the layer of changes impacts the financial
feasibility of the program. Once again, the baseline scenarios were utilized in terms of potential unit counts
and floor area.
Combination 1: Credits Outside of Aspen with Direct Subsidy
This combination explores the use of a direct subsidy with a credits project developed outside of Aspen.
Because the difference in land value between the outside of Aspen option and land in Aspen is negligible,
combining that with a direct subsidy did not result in a financially feasible project for any scenario. Given
this reality, allowing the creation of Aspen affordable housing credits in other communities does not seem
to be a worthwhile program change to pursue.
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Combination 2: RO Housing Credits with Direct Subsidy
This combination explores the issuance of credits for RO units with a subsidy of $250,000 per two-bedroom
unit. The combination of these program changes does not result in a financially viable project in the RMF
(negative -22%) or R-15 (negative -5%) scenarios, but it does create a positive ROI in the AH-PD example
of 11%. This is a result of the higher unit count that is possible on the AH-PD example property, indicating
that a project in RMF that utilized a higher density than the baseline scenario could also potentially be
financially feasible. Given the potential feasibility of these options in some circumstances, there is value in
exploring these program adjustments.
Combination 3: RO Housing Credit with Unit Vacation Credit
This combination yields some potential. In the RMF scenario, the ROI increases to 15%. For AH-PD, the
ROI increases to 47%, indicating that with this combination a slightly lower density than the baseline could
still result in a feasible project. For the R-15 scenario, the ROI increases to 27%. This combination appears
to be quite successful and could be appealing to certain housing developers while providing housing for a
portion of the community who may qualify at RO levels now but purchased a Category unit earlier in their
careers. This type of adjustment will not necessarily appeal to all developers, but could provide one tool in
the housing toolbox to create more movement within the overall system.
Implementation
It is clear that some adjustments to the housing credits program are needed in order to make it more
effective as an option for developers. The interviews with local employers, as well as some feedback in the
moratorium process, indicate an interest in using the program to help create affordable housing in the
community – it just needs to make financial sense for the developer. Based on the analysis, from a financial
perspective all program adjustments, except allowing credits outside of city limits, would be worthwhile and
could provide additional opportunity for the private or non-profit sector to create housing in the community.
Specifically, the analysis indicates potential for the following program adjustments to result in more
affordable housing in the community:
• Allowing Credits for Dormitory Projects
• Issuing Credits for RO Units
• Allowing Credits for APCHA Category Housing Units that are Vacated
• Direct Subsidies to Credits Projects
• Removing the Limitation on Non-Profits from Participating
• Provide Information About the Program
Priority Program Improvements
The main program improvements that would effectively improve the financial feasibility of the program are
allowing credits for all housing units, regardless of deed restriction type and unit type. These should be
considered priorities to make a meaningful impact on the successfulness of the program.
As demonstrated in the financial modeling, the ability to create dormitory units and receive credits for
those projects is the most successful from a financial perspective. These unit types are also highly desired
by some of Aspen’s employers. This program adjustment, allowing credits for all housing unit types, is
included as potentially the most influential adjustment to the program.
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It is important to note that not all developers want to develop dormitory units, so other priority adjustments
should be pursued. Allowing credits for RO units provides a potential avenue for existing APCHA
homeowners to move through in the system. Providing some financial incentive for RO units, in addition to
Category units, could provide additional options for housing developers to make a project pencil. Potential
guardrails could be included, such as requiring a mix of Category units and RO units, similar to the current
GMQS 60% and 70% processes. It should be noted, however, that each project is unique and a specific
requirement for unit mix is not recommended at this time.
Other Program Improvements
While it may not be possible for all developments, the possibility of providing credits for existing APCHA
units that are vacated by an owner provides a potentially powerful tool. It could encourage more
movement within the existing inventory, and it provides a successful financial input to projects. This would
not necessarily be a standard item that all housing developers could use, but it is one option that could
make certain projects feasible.
Similarly, the use of direct subsidies is a potential option that could provide assist some projects. Rather
than allowing this for all projects, creating some parameters for when the city would provide a subsidy
should be discussed. This could be to support public private partnerships, or to support non-profits looking
to create housing on their land. It could also be used as a way to back the credits, rather than providing the
subsidy to the developer. It could provide some comfort to a financial institution, enabling a housing
developer to have access to a broader range of capital to pursue the project.
Policy / Information Improvements
When it comes to the ability for non-profits to utilize the credits program, the code language is relatively
unclear. What constitutes a non-profit receiving public funds for housing? If a non-profit entirely unrelated to
the housing realm receives a state grant that will help them provide housing, does that disqualify them from
the program? What about a taxing district like the hospital? The current code limitation seems to require the
city to understand forensic accounting practices to determine compliance. In place of that, the de facto
policy has leaned toward not allowing any non-profits to participate. One important program improvement is
to remove the limitation on non-profits / non-governmental organizations from participating in the
program entirely. These institutions, like private employers, are increasingly needing to provide housing for
their staff, and removal of the limitations would provide an additional funding source for these organizations
who may have available land to create housing that provides benefits to their workers and the community.
Some of the feedback in the interviews revealed a lack of understanding on how the housing credits
program works. A key recommendation that would not require any program adjustments is for the city to
provide clearer information, particularly to non-profits and employers about how the program works.
Similarly, providing clearer information or a training to financial institutions could be useful in expanding the
overall understanding of the program.
144
119 South Spring Street, Ste. 102
Aspen CO. 81611
December 05, 2022
RE: AFFORDABLE HOUSING CREDITS PROGRAM POLICY OBJECTIVES MEMO
Dear Ben and Phillip:
This letter is intended to capture much of the AH Credits discussion we have had over the past few years
as well as respond specifically to the Policy Objectives you lay out in your memo dated December 5, 2022.
I appreciate the opportunity to submit this letter along with the packet on the matter to City Council.
As I have described to you over the years as a private sector affordable housing developer, I believe the
concept of the AH Credits program is a solid foundation for the private sector’s participation in creating
affordable housing. That said, the program currently comes with inadequacies that limit the private sector
from creating any sizable impact on the delivery of new units. In effect, most Credits projects just keep up
with employee generation from free-market development and do not get out ahead of the affordable
housing shortfall. A robust restructuring of the AH Credits program could overcome the challenges that
keeps the private, non-profit, and quasi-governmental sectors from helping to get out ahead of our
community’s housing challenges.
As a result of the recent explosion of residential real estate values in the upper Roaring Fork Valley, the
entire dynamic and function of our longstanding affordable housing ecosystem has drastically changed
from its original intent and will likely never go back. No longer can households of deed restricted units
move on to the free market while remaining in the geographic reach of the Aspen community. Anecdotally,
and I believe could be supported by real evidence, households that are leaving their category ownership
units are not just leaving the Aspen area or upper valley but are exiting the Roaring Fork Valley entirely.
As you note in your memo, there are numerous barriers keeping a broader set of participants from utilizing
the Credits program for developing new affordable housing projects or acquiring and deed restricting
existing units. In addition, I believe the dramatic change in the housing market over the past few years
opens up some new (or old) considerations relating the affordable housing ecosystem in general and the
retooling of the Credits program specifically.
The following are the key areas that I find need attention in the AH Credits program update conversation,
most of which would benefit from being brought into policy in tandem rather than independent from each
other.
1.Align with financial fundamentals to make a business case
As you correctly identify in your memo, investors, banks and other financial institutions do not place
any value on Credits and therefore, are not able to underwrite them into the valuation of a project. If
the City was able to guarantee or even purchase the Credits and serve as a broker or clearinghouse,
this certainty of value could then be brought into the underwriting of a project. Of course, this
approach would run counter to letting the market determine the value of Credits, but over time it
would be cost neutral to the City as it would eventually sell the credits to developers needing to
mitigate employee generation. This backstopping of the Credits value would attract more participants
into the AH Credits program and certainly allow for larger projects, whether new development or
Exhibit B
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2
development neutral. Aligning the program with more sound business, investment and lending
fundamentals would greatly reduce this critical barrier to entry.
2. Expand the geographic footprint of AH Credit project eligibility
Also addressed in your memo is the limited geographic opportunity for developing or buying down
affordable units within the Urban Growth Boundary. Even with consideration for the new policy to
allow affordable housing projects across a wider range of City zone districts, very few opportunities
still exist to get more than a few units here or there. And with the most recent explosion of residential
real estate throughout the upper valley, classic location theory still applies, and property is more
expensive near the center, in this case Aspen, than locations radiating outwards.
Finding creative policy solutions that allow the creation of AH Credits through the development or
buydown of units outside of the UGB may prove fruitful in the effort to get out ahead of our employee
housing crisis rather than just trying to keep up. And I agree with your suggestion in the memo that
the school district boundary is a good starting point for discussing what overlay captures the
geographic footprint that constitutes our local community and workforce. This exploration may even
spur some dialogue with our jurisdictional neighbors that could be the beginning of a more aligned
thinking on housing strategy.
3. Right-sizing and housing mobility
Perhaps the most impactful result of the recent residential real estate boom on the affordable housing
program is the inability for households to move out of the system and remain a part of the community
and the local workforce. Through the housing program’s tenure, many individuals and households
found their footing in the community by owning a deed restricted home through the housing program.
Then they could eventually find their way into a free-market ownership situation and solidify their
place in the community, whether in Aspen, Pitkin County, Snowmass or Woody Creek. Those days no
longer exist. In fact, the current disparity between category ownership units and free market is so
great that current affordable housing owners are effectively stuck, they either stay in their unit forever
or leave the community entirely.
To unlock this “stuckness”, a key consideration in the AH Credits discussion is reopening the
willingness to look at upper category and Resident Occupied units as critical path solutions to
balancing our housing ecosystem. Creating a pathway for moving households through the system
achieves two paramount tenets to the housing program: 1) new individuals and households have the
opportunity to own and live in a unit appropriately priced to their income level; and 2) the program
moves households through the system yet retains them as permanent members of the community. A
win-win outcome.
The impediment to the fluidity of the housing ecosystem is mobility. Some communities refer to it as
the missing middle, or workforce housing. In our community it can take on whatever is the most
appropriate term, but in function, it is the missing housing stock for households that are now earning
far more than their categorical deed restriction intends. My guess is that it’s hundreds of households
paying a much lower ratio of mortgage to gross household income compared to the standard rule of
thumb of 33%. These are critical members of the community and professional contributors to the
workforce that have nowhere else to go.
As a solution, I strongly encourage the consideration for expanding the support of upper income level
and RO housing. And in doing so, perhaps redefining Resident Occupied housing in order to bring
these unit types into the AH Credits program. For the purposes of an example, the creation of a new
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RO unit in the UGB, upper valley or Snowmass secures a household from leaving our community and
workforce. And to double down, if that household moves out of a deed restricted ownership unit, well
then, the program not only retained a community household, but it opened up a unit for a new, likely
younger and more aligned individual or household for that unit, giving them a chance to become a
permanent member of the community. Hence the term, mobility.
If the AH Credits program focused on upward mobility as well as lower category and employer-owned
housing units, the workforce housing system could proliferate into accommodating households that
can afford significantly more expensive residences that they otherwise can no longer find in the
geographic boundary of our upper valley community. And in doing so, vacating a unit for a new
household.
This concept will likely be misconstrued as “double-dipping”. And for that reason, I’d like to reiterate
my prior points. We as a community are desperate for overcoming two challenges that have been
exacerbated by the recent real estate explosion: losing critical members of our community and
attracting and retaining newcomers to our community and workforce. To overcome these challenges,
we should look at a new strategy to the AH Credits program in the names of rightsizing and mobility.
Create policies to move households through the system, meaning right-sizing opportunities for
families to move into larger and more expensive units that they otherwise can no longer find in our
market. And incentivize that mobility through the Credits program by acknowledging their movement
is effectively the creation of two new units of ownership.
In this case, the math is simple: 1 + 0 = 2
4. Credits as regional housing currency
If these concepts can be perfected, and certainly with plenty of additions and omissions from others,
the AH Credits program could become a common currency for affordable housing mitigation across
our much wider region. Imagine an adjustable unit of affordability, a credit, that is transferable across
interrelated jurisdictions that are all part of the same regional workforce ecosystem. Radiating from
Aspen and the upper valley, this concept could expand down valley and throughout our broader but
interconnected regional community. True innovation, just as our novel housing program was at its
initial conception decades ago.
Bold concepts need to start at the epicenter of the challenge, and that is us. Our community faces the
greatest disparity of income inequality and real estate values across all mountain resort communities.
Learning from the success of our past visionary efforts and approaching our current crisis through an
eyes-wide-open approach gives Aspen the vision and perspective to crack the code and set the
standard once again for addressing mountain-community housing challenges.
I would very much be honored to continue to be part of this conversation in seeking solutions to these
unprecedented challenges.
Sincerely,
Adam C. Roy
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Resolution No. 026, Series of 2023
Outdoor Lighting Code - Policy Resolution
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Haley Hart, Long-Range Planner
Sophie Varga, Planner
Ben Anderson, Deputy Director of Community Development
THROUGH: Phillip Supino, Community Development Director MEMO DATE: February 20, 2023
MEETING DATE: February 28, 2023
RE: Outdoor Lighting Land Code Amendments
Resolution No. 026, Series of 2023
Policy Resolution – Public Hearing
REQUEST OF COUNCIL: Prior to the initiation of updating Section 26.575.150 - Outdoor
lighting, within the City of Aspen’s Land Use Code (LUC), Council is asked to review and
approve the Policy Resolution pursuant to Section 26.310.020(A).
SUMMARY AND BACKGROUND: Section 26.575.150 - Outdoor lighting, of the LUC
defines the regulations related to outdoor lighting on private or public property within the
City of Aspen. The purpose for updating this code section is in response to difficulties
present in the current code which were last comprehensively updated in 2003. The
current code is fully prescriptive, meaning there is little consideration of the performance,
or quality of light generated on the entire property. This makes it extremely difficult for
lighting designers to design in conformance with the City’s code and for the City’s zoning
officers to evaluate development proposals. Additionally, the current code primarily
establishes a single set of standards for lighting across different land use types and areas
of town. For example, most of the lighting standards are the same for residential,
commercial, parks, and publicly owned spaces – all of which are distinct uses that should
have distinct lighting parameters associated with their use.
Changes to lighting technology, updated design trends, and a growing understanding of
the value of the night skies to community character, human health, and the ecological
and environmental health of flora and fauna have raised the need for a full overhaul of
the lighting standards. It is important to note that the lighting standards in the LUC do not
apply to lighting in the Right-of-Way, including the City’s system of streetlights and lighting
related to transit facilities.
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Since the adoption of Resolution No. 101, Series of 2021, a resolution approving the
contract between the City and Clanton and Associates, staff has worked with the lighting
design consultant to evaluate existing conditions and draft language towards an updated
code. This work included a community and stakeholder visioning session which took
place April 18th-20th, 2022. This time was spent evaluating nighttime lighting conditions
and conducting a preliminary public outreach and engagement survey, culminating in the
creation of the Aspen Lighting Ordinance Community & Stakeholder Memo, included as
Exhibit A and the Aspen Lighting Ordinance Existing Conditions Memo, included as
Exhibit B. Staff and the consultant are working towards development of a draft ordinance
and have since taken updated language and concepts to community stakeholders, those
involved in the visioning session, lighting design experts, the Historic Preservation
Commission, the Planning and Zoning Commission, and the Commercial Core and
Logging Commission. Staff and the consultant will continue to work with these
stakeholders and the public to gain feedback for first reading at Council.
Proposed Policy:
The code sections anticipated for amendment include:
Primary Section
• 26.575.150 - Outdoor lighting
Secondary Sections
• 26.435 - Development in Environmentally Sensitive Areas (ESA), and;
• 26.515.080 – Special Review, and;
• Other sections as necessary for consistency and coordination within the LUC.
Innovative concepts to the outdoor lighting policy are proposed for the draft ordinance
and are based on national best practices following guidance from the American National
Standards Institute (ANSI), the Illuminating Engineering Society (IES), and the
International Dark Sky Association (IDA). Aspen is a unique city situated in a natural
environment and the context of the City’s geographical location and how both human and
the natural ecosystem interact with the nighttime environment will guide what to light, why,
and when. Staff and the consultant understand that some exterior lighting is appropriate
and necessary for the safety of people at night, and the following principals are proposed
as a guide for responsible lighting design:
(1) Useful – All lighting at night should have an intended purpose.
(2) Targeted – Light should be directed only where it is needed.
(3) Low Light Levels – Light should be no brighter than necessary for the task.
(4) Controlled – Lighting should only be used when it is useful.
(5) Spectrum – Limit the amount of harmful short wavelengths (blue-violet).
Together with the forementioned principles for responsible lighting design, the following
goals are proposed to be the cornerstone of the draft policy:
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(1) Use ANSI/IES exterior illuminance recommendations to reduce pedestrian
accidents and promote the health, safety, and welfare of people.
(2) Reduce obtrusive and glaring light that inhibit human vision and detract from
enjoyment.
(3) Curtail light pollution, reduce sky glow metrics, improve the nighttime
environment for residents, visitors, and astronomer enthusiasts.
(4) Prevent inappropriate and poorly designed or installed outdoor lighting.
(5) Protect local and migrating ecological systems from the adverse effects of
artificial light.
(6) Prevent light trespass from unnecessarily disturbing people (and their sleep
patterns) and from unnecessarily restricting access to nighttime darkness as a
natural resource.
New topics and terms based on national best practices are proposed to better serve the
City’s nighttime environment. The central focus will include the following:
• Lighting Zones – a municipal planning tool which creates a hierarchy of planned
lighting and overlays with specific land uses.
• Light Trespass – the measurement and enforcement of how much internal light
is radiated externally beyond the boundary of its intended use, such as a
property line.
• Historic Landmarks – the continuation and recognition that the City’s historic
sites may adopt or have existing lighting approvals to highlight their
architectural significance to the community.
• Holiday/Seasonal Lighting – a proposed policy question at first reading to
Council will direct staff on the duration of holiday lighting and how much will be
allowed per site.
• Prescriptive and Performance-based Guidelines – a blend of both submission
types to evaluate how a building or parcel is illuminated holistically rather than
looking solely at the type of individual lights on the site.
• Parks and Public Spaces – staff and the consultant are working with the Parks
and Recreation team to create standards that provides flexibility while
preserving homogeneity regarding the type and quality of lighting in the City’s
parks and publicly owned spaces.
Although the City will not be pursuing the International Dark Sky Places certification due
to the limited purview that the LUC section is responsible for, the principals, goals, and
topics of focus are analogous with those of dark skies communities and will have a
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marked impact on the preservation of the night sky. Staff and the consultant team will
continue to work towards the development of a draft ordinance that includes a framework
for improved coherency and a workable balance between safety, aesthetics, human
health, and ecological and environmental impacts of outdoor lighting.
CONCLUSION AND NEXT STEPS:
Approving the Policy Resolution would not approve code amendments or signal eventual
approval of the amendments. Rather, the Policy Resolution allows the typical process for
a LUC amendment to proceed as described by code. Staff will continue to work on public
engagement, analysis, and development of the draft ordinance in the coming months.
Staff and the consultants will conduct another round of public engagement to solicit input.
Council can then fully consider the proposal comprehensively, in the context of public
outreach, research, analysis, and recommendation from staff and the consultant.
Staff intends to return to Council in the second quarter of 2023 with a proposed
Ordinance.
RECOMMENDATIONS:
Staff Recommends Council approve Resolution No. 026, Series 2023, approving initiation
of possible Land Use Code amendments.
RECOMMENDED MOTION:
“I move to approve Resolution No. 026, Series of 2023.”
FINANCIAL IMPACTS: N/A
ENVIRONMENTAL IMPACTS: N/A
ALTERNATIVES: N/A
CITY MANAGER COMMENTS:
EXHIBITS:
Exhibit A – Aspen Lighting Ordinance Community & Stakeholder Memo
Exhibit B – Aspen Lighting Ordinance Existing Conditions Memo
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RESOLUTION # 026
SERIES OF 2023
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL ADOPTING
POLICIES AUTHORIZING AMENDMENTS TO SECTION 26.575.150 –
OUTDOOR LIGHTING AND OTHER RELATED CODE SECTIONS AS
NECESSARY WITHIN THE LAND USE CODE.
WHEREAS,pursuant to Section 26.310.020(A), a Policy Resolution is required to
initiate amendments to the City of Aspen Land Use Code; and,
WHEREAS,the Land Use Code requires periodic amendments to ensure it supports
adopted City policy, is aligned with the community vision, and responds to changes in
community, development, technological and environmental conditions; and,
WHEREAS,Section 26.575.150 – Outdoor lighting, was last comprehensively
updated in 2003 and changes to lighting technology, updated design trends, and a growing
understanding of the value of the night skies to community character, human health, and
the ecological and environmental health of flora and fauna have raised the need for code
updates to the lighting standards; and,
WHEREAS,pursuant to Section 26.310.020(A), during a regular City Council
meeting on November 9, 2021, City Council adopted Resolution No. 101, Series of 2021,
granting approval of a contract with Clanton and Associates for professional services
related to an update of the outdoor lighting standards within the City’s Land Use Code;
and,
WHEREAS,during a City Council Work Session meeting on January 23, 2023,
the Community Development Department received continued support from City Council
to amend the outdoor lighting standards; and,
WHEREAS,amending the Land Use Code, the City of Aspen will adopt national
best practices leveraging the guidance of the American National Standards Institute, the
Illuminating Engineering Society, and the International Dark Sky Association; and,
WHEREAS, to ensure responsible lighting design, the City of Aspen’s updated
lighting code believes in the right to access dark skies and be free from unnecessary lighting
distractions at night through thoughtful lighting design based on updated principals and goals;
and,
WHEREAS,pursuant to Section 26.310.020(B)(1), the Community Development
Department, following approval of this Policy Resolution will conduct Public Outreach
with the public and members of the lighting development community; will receive
recommendation from the Planning and Zoning Commission in a public hearing; and will
propose an Ordinance to be considered at First and Second Reading; and,
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WHEREAS,this Resolution does not amend the Land Use Code, but provides
direction to staff for amending the Land Use Code; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary for
the promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN AS FOLLOWS:
Section 1: Overall Code Amendment Objectives
The objectives of these code amendments are to:
1. Update the City’s outdoor lighting policy based on national best practices and to
respond to updated lighting technology.
2. Reduce light levels, light pollution, wasted energy, and neighborly conflicts arising
from excessive or poorly designed light at night.
3. Create total site lumen allowances for different land use types established through
the concept of lighting zones which provide a hierarchy of planned lighting within
the City.
Section 2: Topics for Potential Code Amendments
1. The allowance, location, submittal process, and typeand qualityof outdoor lighting
allowed on property within the City of Aspen.
Section 3: Other Amendments as Necessary
Other amendments willbe required within Section 26.435 –Development in Environmentally
Sensitive Areas (ESA),Section 26.515.080 –Special Review,and other sections as necessary
to ensure consistency and coordination withthe updated outdoor lighting standardswithin the
Land Use Code.
Section 4:
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 resolutions or ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded under
such prior resolutions or ordinances.
Section 5:
If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall
be deemed a separate, distinct, and independent provision and shall not affect the validity of
the remaining portions thereof.
FINALLY,adopted this 28th day of February, 2023.
______________________________________
Torre, Mayor
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ATTEST:APPROVED AS TO FORM:
_______________________________________________
Nicole Henning,City Clerk James R True, City Attorney
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ASPEN COMMUNITY &
STAKEHOLDER MEMO
JUNE 14, 2022
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INTRODUCTION
Clanton & Associates (C&A), an award-winning
lighting design and engineering firm based
in Colorado, was hired by the city of Aspen
to evaluate and update the existing outdoor
lighting ordinance, section 26.575.150. Based
on HID lamp technology, the current lighting
ordinance was written prior to the emergence
of LED technology, so obsolescence and gaps
are expected to be found within. For example,
references of wattage are now a misleading
indicator for light output due to the advent of
newer, more efficient, LED technology. It is
anticipated additional advancements regarding
controls, the distribution of light, and the
environmental impact(s) of light at night can be
considered.
The project team from C&A visited Aspen April
18-20, 2022 to evaluate nighttime lighting
conditions, conduct public outreach and
engagement surveys, and host a stakeholder
visioning session to develop guidance for next
steps.
The C&A project team in attendance were:
Brittany Lynch (Senior Designer and Project
Manager), Dane Sanders (President), Debbie
Melton (Lighting Designer), Josie Proulx (Lighting
Designer), and Rick Utting (Brand Ambassador).
In attendance from Aspen were: Robert Sardo
(Lighting Design), Natalie Lopez (Historic
Preservation), Emily Gordon (Lighting Design),
Beth Felds (Architect), Aaron Humphrey
(Lighting Design), Jane (Architect), Michelle (Past
Planner), Mike Tunde (Landscape Architect),
Sandra Dubler (Special Events), Amy Simon (City
Planner).
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An evaluation of Aspen’s current lighting
conditions and a subsequent stakeholder survey
were conducted during the April 18-20, 2022
visit. Results are documented in the separate
“Evaluation of Existing Conditions Memo”.
Additional observations and stakeholder
comments include:
• Current holiday lighting installations are
violating the allowed ordinance timeframe
• The difference between holiday lighting and
some hospitality lighting is not clear
• Some Aspen residents believe more light will
reduce the risk of people/bear encounters
• Over-lit is just as offensive as under-lit within
the commercial downtown district
• Is it possible to address commercial
downtown lighting without addressing the
street lighting
CURRENT STATE
As evaluated by environmental expert Travis
Longcore, Aspen is located in a region where
many areas are relatively free from ecological
and astronomical light pollution.
However, the annual composite of Zenith sky
brightness for Aspen increased in 2021. In fact,
many areas within Aspen, like the intersection of
Main Street and Hunter (the Police Station), have
increased in sky brightness since their low point
in 2017, see Figure 1.
Figure 1: Graph showing radiance data
Figure 2 shows the overall light pollution in
the areas surrounding Aspen. It demonstrates
that the city is surrounded by darkness with
dispersed pockets of brightness, which relate to
the nearby highways. The city appears relatively
dark when compared to the light pollution along
the I-25 corridor from the Denver-metro area to
Colorado Springs.
Figure 3 is a close up showing the lighting
pollution in Aspen and local surrounding areas.
The concentrated light pollution is within the city
limits of Aspen and around the airport district.
The light pollution drops dramatically due to the
rural nature of the surrounding context.
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Image 3: Localized view of Aspen showing a range of mid-level light pollution
Figure 2: Overall light pollution in areas surrounding Aspen
CURRENT STATE
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Attendess voted 74/26 balance favoring risk, an
innovative and progressive approach. Attendees
believe Aspen should address outdoor
lighting conflicts rather than ignore them. It is
understood outdoor lighting can create beauty,
atmosphere, mood, danger, and conflict. Hence,
lighting design itself is inherently risky. There
is a strong belief that if designers are given an
ordinance with current best practice boundaries
to work within, innovative and autonomous
solutions can be implemented within a
harmonious context.
Already considerate of both the natural and built
environments, Aspen wishes to continue finding
balance when making outdoor lighting decisions.
Overall, current stakeholders rank this as a 56/44
balance favoring the natural environment. The
overall balance is derived from an increased
emphasis on the natural environment in
residential areas and more equal balance in the
downtown commercial district. One cited intent
of the existing ordinance is to eliminate the
escalation of nighttime light pollution, this goal
should probably remain. New considerations can
include the evaluation of key migration patterns
to prevent premature death of pollinating insect,
birds, and animals.
VISIONING RESULTS
An Aspen “Visioning Session” was conducted
on April 20, 2022 to discuss, debate, and
weigh the values of city officials, stakeholders
and other influential forces. At the visioning
session, attendees requested the 2022 Aspen
lighting ordinance include clear explanations of
illumination intent along with understandable
metrics so city officials can support enforcement
of the ordinance and make judgment decisions
regarding new and special requests in the years
to come. Results of the visioning session are as
follows:
Natural and Built Environment
Certainty and Risk
Coordinated and Autonomous
With a 57/43 balance favoring autonomous
solutions, Aspen’s goal is not to make everything
look the same, “flattening out the fun”. Rather,
Aspen believes it’s possible to light within a
range of acceptable solutions to avoid the
appearance of pieced together patchwork.
Identified as a current gap, stakeholders
suggest the downtown hospitality area lacks an
understanding of character districts.
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City officials and stakeholders eloquently
described Aspen and being uniquely Aspen, a
modest mountain town with small city character,
and a desire to keep it that way. There is pride
in the people who live here, and a willingness
to give visitors the true Aspen experience.
Looking forward, planners value a subtle
design vocabulary 84/16 over something that
is too expressive. Also of value are Aspen’s
uniqueness 62/38, and timeless elements 57/43
versus universal, and contemporary design
respectively.
There was wide consensus amongst
stakeholders that Aspen visitors come from
around the world and are generally very
sophisticated. While it’s fair to think big and be
inspired by distant influences, remaining true to
Aspen and adjacent influences was preferred
by a 54/46 balance. Additional stakeholder
discussion, and eventual practicality, balanced
theoretical and actual influences at 52/48
respectively. Restated, problem solving and
innovation commonly start in theoretical space
and then shift more towards actual as the project
moves into implementation. The 2022 lighting
ordinance update should reflect the acumen of
these influences.
VISIONING RESULTS
Influences
Design Vocabulary
Resolute/Adaptive Work Style
City officials and stakeholders expressed
multiple frustrations with holiday lighting being
allowed beyond the prescribed time frame.
This was not intended to be an example of the
groups 69/31 balance towards adaptive work
style versus resolute. Taking harmful lighting
options off the table, offering a range for others,
having clear definitions with no gray areas for
city officials, sounds like a very resolute goal.
However, the adaptive ranking is intended for
the 2022 lighting ordinance update so there is
flexibility within the boundaries, making design
solutions adaptive and long lasting.
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OPPORTUNITIES
An updated 2022 Aspen Lighting Ordinance has
the opportunity to demonstrate leadership and
innovation by leveraging the newly published
ANSI/IES LP-11-20 Environmental Considerations
for Outdoor Lighting, ANSI/IES LP-2-20
Designing Quality Lighting for People in Outdoor
Environments and ANSI/IES RP-43-22 Lighting
for People in Outdoor Environments documents.
All three of these publications have been written,
reviewed, and endorsed by leading lighting
design professionals using a narrative that is
easily understood by people without a lighting
design background.
ANSI/IES LP-11-20 will be used to educate
how outdoor lighting at night can have a
profound effect on nature. As discussed with
Dr. Travis Longcore, outdoor lighting at night
can change complex ecosystems in ways that
are not immediately obvious or discernable.
Leveraging LP-11-20, the updated 2022 Aspen
lighting ordinance should/will reflect our latest
understanding of the issues and best practices
to mitigate glare, sky glow, light trespass, or
any other unwanted light that could negatively
impact flora, fauna, or human health. Definitions
of light trespass beyond measurable light at the
property line will be considered.
ANSI/IES LP-2-20 has defined why we use
light at night, a hierarchy of pedestrian needs
in the outdoor nighttime environment, and
the recommended illumination methods that
promote the best vision.
The reason we light at night is for people and
pedestrian safety. As discussed in the April
visioning session, the lighting ordinance process
begins with community planning to layout values,
goals and themes for the city. Land use zones
and tasks should be thoughtful and facilitate the
anticipated character, light level, and transitional
needs happening between spaces with
different tasks. A review of Aspen districts will
be conducted and compared to standard best
practices.
For commercial and hospitality districts,
orientation and wayfinding are at the foundation
of pedestrian needs to gain understanding and
coherency of one’s nighttime surroundings.
When done correctly, nighttime lighting can
convey the relative importance and character
of cityscapes and enhance their information-
giving value. There will be illumination
recommendations for both vertical and horizontal
elements to promote these tasks.
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Next on the hierarchy list of pedestrian needs
is reassurance. Reassurance is a relatively
new term that doesn’t ensure security, but it
does describe a pedestrian’s confidence and
willingness to engage with outdoor space. This
task will apply to all zoning districts, including
residential. Illumination of perimeters, barriers,
points of egress, and possible threats will help
inform the conscious and sub-conscious decision
to navigate. Once a pedestrian is moving,
illumination for physical safety is needed to avoid
and/or traverse hazards such as terrain, moving
objects, and changes in grade like curbs and
stairs.
The final tier of the outdoor lighting hierarchy
is called “Atmosphere and Enjoyment”, a place
where the lighting designer can use their skills
to spark emotion and create mood. An optional
task, it is ironically here, where many non-lighting
practitioners would start their lighting design
process, not understanding it is impossible to
achieve enjoyment without feeling reassured.
Although optional, atmosphere should be
addressed within the Aspen lighting ordinance to
achieve the desired character and theme goals.
Future State:
Although the methods and techniques might
change, all eight goals within the current Aspen
lighting ordinance remain valid.
• Promote safety and security
• Help preserve small town character
• Eliminate the escalation of nighttime light
pollution
• Reduce glare and offensive light sources
• Provide clear guidance to builders and
developers
• Encourage the use of improved technologies
for lighting
• Conserve energy
• Prevent inappropriate and poorly designed or
installed outdoor lighting
What to light, why, and when will be a
cornerstone of the lighting ordinance update.
A community, builder, and developer education
plan should be part of the updated lighting
ordinance implementation to increase
engagement. Additional objectives for the
updated 2022 Aspen lighting ordinance
include a narrative that is easy to read, not
too technical, explaining the intent of lighting
recommendations, and providing understandable
metrics so city officials can support enforcement
of the ordinance to make judgment decisions
regarding new and special requests in the years
to come.
OPPORTUNITIES
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EXISTING LIGHTING CONDITIONS
The City of Aspen requested an evaluation of the existing
outdoor lighting conditions to aid in the creation of new outdoor
lighting ordinance. The Outdoor Lighting Ordinance will outline
an intent to provide improved visibility, reduce light trespass,
refine the overall aesthetics of the City of Aspen. The Ordinance
will also provide consistently between other city ordinances.
To gain an understanding of the existing street lighting
equipment and conditions, Clanton and Associates surveyed
seven (7) sites throughout the downtown area in April 2022.
Those sites included:
The selected sites included retail, hospitality, and residential
areas. Both horizontal and vertical illuminance measurements
were taken at each site. Luminance measurements were also
taken to provide an understanding of surrounding surface
brightness and glare from light sources. These measured light
levels were used to compare the existing light levels to the light
level recommendations by the Illuminating Engineering Society
(IES). The existing lighting levels will be compared to IES lighting
criteria and the Model Lighting Ordinance (MLO) to guide the
development of the Outdoor Lighting Ordinance.
Representatives from the city attended a visioning session
and participated in the site visit surveys. They offered valuable
insights into the likes, dislikes, and common issues of the
outdoor lighting throughout the downtown area. They also
participated in a Color Demonstration to determine the weight
in on the future Correlated Color Temperature (CCT) that will be
required in the Outdoor Lighting Ordinance.
These surveys provide an overview of existing street
lighting conditions to aid the city in reviewing and prioritizing
recommended improvements to include in their Outdoor
Lighting Ordinance.
EVALUATION OF EXISTING LIGHTING CONDITIONS
The scope of the Outdoor Lighting Ordinance focuses on
exterior lighting, not including street lighting. These standards
will outline the following;
Adaptive Lighting Criteria
Curfews
Color Temperature
Maximum lumens for different applications
Backlighting, Uplight, and Glare ratings
Shielding
Light trespass regulations
Sports lighting
LIGHTING SCOPE OF THE OUTDOOR LIGHTING ORDINANCE
The areas surveyed during the site visit showed varying lighting
conditions. The most common type of luminaire is a ‘historical
acorn’ post top pedestrian luminaire, owned by the city. These
luminaires are not historical to Aspen as they were brought from
another city. They have high pressure sodium lamps and are not
full cut off. There is a variety of luminaires within individual retail
and residential sites surveyed.
CURRENT LUMINAIRES
1. E. Cooper Avenue
2. Aspen Lodge Square
3. Eden Gallery
4. Dancing Bear
5. Aspen Sports
6. S. Galena Street
7. Balenciaga
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SITE EVALUATIONS
E MAIN
ST
E MAIN
ST
ECOOPE
R
AVESORIGINALSTWAGNE
R
PARK
1
2
34
5
6
7LEGEND
E. Cooper Avenue
Aspen Square Lodge
Eden Gallery
Dancing Bear
Aspen Sports- Pedestrian
Mall
S. Galena Street
Balenciaga
1
2
3
4
5
6
7
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SITE EVALUATIONS
To gain an understanding of the existing outdoor lighting equipment and conditions in Aspen, CO, Clanton and
Associates conducted a site visit to evaluate the outdoor lighting at various locations throughout the downtown
area. The information and knowledge gained through the site visit will influence the improvement strategies to be
recommended.
Participants were broken into two groups and taken on a nighttime tour of the selected sites and were asked to
complete a survey assessing the lighted environment. The survey was comprised of several subjective questions
regarding the safety and aesthetics of each site. The survey included, but was not limited to, the following questions:
• It would be safe to walk here, alone, during daylight hours.
• It would be safe to walk here, alone, during darkness hours.
• The light is uneven (patchy).
• The light sources are glaring.
• The lighting is poorly matched to the neighborhood.
Participants answered each question with a ranking between Strongly Agree and Strongly Disagree. The answers to
each question were combined to provide an understanding of each site.
SITE OBSERVATIONS
Three “Levels of Acceptability” were determined from an analysis of the site observations and survey results:
Acceptable, Moderately Acceptable, and Poor:
Acceptable is obtained by providing sufficient and appropriate lighting on the roadway, while also providing
adequate vertical illumination to allow for object detection and facial recognition. The lighting in this location will
be relatively uniform, free of direct glare and properly illuminates the roadway and sidewalk. It also limits light
trespass onto nearby residential properties.
Moderately acceptable indicates that the lighting in the area feels comfortable. In some cases, such as
residential areas, the light level might be lower than the IES Recommended Practice but the lack of glare
and shadowing from surrounding landscaping, along with some surrounding surface brightness, creates a
comfortable nighttime environment without light trespass.
Poor acceptability occurs when the luminaires are spaced too far apart to provide adequate light levels and
uniformity or there are no luminaires on the street at all. These sites included residential areas without sufficient
light, large amount of light spilling onto nearby properties, or glare and/or shadowing from the light source.
These levels of acceptability provide an understanding of the nighttime environments found throughout the
city. This allows a variety of lighting improvement options to be developed. These future lighting options will
enhance the nighttime safety and security around the city. Each option will focus on improving light levels,
uniformity, and way finding while reducing glare.
ESTABLISHING LEVELS OF ACCEPTABILITY
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RESIDENTIAL
E. COOPER AVENUE1
Clanton Site Observations:
• Residential pathway lighting across from the City Market
• Different color temperature bulbs
• Overlit, bright light sources
Participant Survey Comments:
• Feel safe during the day and night
• Light is glary and uneven, creates patches
• Dislike the style of light
“I like how the light is contained to the ground”
“Mismatched bulbs,very distracting, very bright”
Bright light sources, overlighting the pathway
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HOSPITALITY
ASPEN SQUARE LODGE2
Clanton Site Observations:
• Balcony luminaires provide good vertical light but are bright and glary
to the observer below
• Parking lot in between building is dark, not enough vertical light for
facial recognition
Participant Survey Comments:
• Feel safe during the day and somewhat safe at night
• Lighting is uncomfortable
• Enough light on adjacent street and sidewalk
• Light sources are glary
• Dislikes the style of lighting
“Balcony lights are glary”
“It’s not terrible but, it’s too dark”
Balcony luminaires are bright but, not enough
light is provided in the parking area
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RETAIL
EDEN GALLERY3
Clanton Site Observations:
• Light sources are set back inside the gallery and aimed outwards
• Large amount of light spill on the sidewalk and street
• Does not appear that the lighting dims during nighttime hours
• Gallery across the street is a good example, with light sources
mounted at the window and aimed into the space
Participant Survey Comments:
• Feels safe during day and night
• Colors can not be determined
• Dislikes the style of lighting
• Can not recognize faces
• Light sources are glary
“The lighting from the gallery is glary and out of
place”
“Way too bright, light sources directed at
Pedestrians”
Large amount of light spill from inside the gallery
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HOSPITALITY
DANCING BEAR4
Clanton Site Observations:
• Festive lighting provides a lot a light or the sidewalk
• Good color temperature
• Red linear luminaire at roof line was not on when the site visit was
conducted
Participant Survey Comments:
• Feels safe during the day, somewhat safe at night
• Lighting is comfortable
• Likes the color of the light sources
• Matches neighborhood
“If the trees had no light on them, it would be much
too dark and dangerous to walk”
“I don’t like the full visibility of the red linear edging”
Red linear luminaire on roof of building can be
seen from the ground.
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RETAIL- PEDESTRIAN MALL
ASPEN SPORTS5
Clanton Site Observations:
• Lighting in store was completely turned off during site visit
• Adjacent pedestrian mall was very dark
Participant Survey Comments:
• Does not feel safe at night
• Lighting is not comfortable
• Not enough light on the street or sidewalk
• Can not recognize faces
• Dislikes the style of lighting
“Weird greenish mall lights”
“I feel like if the lights were on, it would be worse”
Dark pedestrian mall. Lights from store fronts are
completely off during the off-season
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MIXED USE- RETAIL/OFFICE SPACE
S. GALENA STREET6
Clanton Site Observations:
• Multiple luminaire types including permanent festive lighting
• Ground level retail window is bright and has a cooler color temperature
than the rest of the building
Participant Survey Comments:
• Feels safe during day and night
• Glaring light sources
• Lighting does not match neighborhood
• Dislikes the style of lighting
“I like the lighting except for the cool glaring light
from the display window”
“The bottom floor commercial space has lighting
that is inconsistent with city values”
Bright retail window and a mix of luminaire types
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RETAIL
BALENCIAGA7
Clanton Site Observations:
• Large amount of light spill from interior reaching exterior sidewalks
• Light sources are aimed towards the exterior windows
• Glary light sources
• Overlit
• Does not dim during nighttime hours
Participant Survey Comments:
• Feels safe during the day and night
• Uncomfortable
• Glaring light sources
• Dislikes the color of light sources
• Lighting does not match neighborhood
• Dislikes the style of lighting
“Light sources are too cold and directly visible”
“Bright, blinding white light”
Roadway and sidewalk illumination is provided by
retail lighting that spills outwards from windows
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COLOR TEMPERATURE DEMONSTRATION
Color Temperature Demonstration:
Clanton and Associates conducted a color temperature demonstration with
the same participants from the site survey. The participants observed five (5)
different color temperature and completed a survey on each one. The five (5)
color temperatures were: 2200K, 2700K, 3000K, 3500K, 4000K.
Participant Survey Comments:
• Overwhelmingly prefer 2700K, highest marks for comfort, illumination,
color perception, and color of light
• The second most preferred color temperature was 3000K and the least
prefered color temperature was 4000K.
Color of light preference is often subjective
and regional.
Survey Results:
• 2200K - Can’t perceive color of objects, don’t prefer color of light
• 2700K - Can perceive color of objects, like color of light
• 3000K - Can perceive object color, like color of light
• 3500K - Can perceive object color, don’t prefer color of light
• 4000K - Can’t perceive object color, don’t prefer color of light
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APPENDIX
SURVEY RESULTS AND LIGHTING MEASUREMENTS
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E. COOPER AVENUE1
APPENDIX
-1.5 -1 -0.5 0 0.5 1 1.5 2 2.5 3
Safe- day
Safe- night
Comfortable
Too much light-street
Not enough light- street
Too much light- sidewalk
Not enough light- sidewalk
Uneven (patchy)
Glaring
I can recognize faces
I like the color of the light
I can't see colors well
The lighting does not match the neighborhood
I like the style of lighting
E. COOPER AVENUE
Survey Results:
10W, 800lm
bulbs
Light is bouncing
off the pavement
and hitting the
trees
26.500 cd/
m^2
49.4 cd/m^2
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ASPEN SQUARE LODGE2
APPENDIX
-1.5 -1 -0.5 0 0.5 1 1.5 2
Safe- day
Safe- night
Comfortable
Too much light-street
Not enough light- street
Too much light- sidewalk
Not enough light- sidewalk
Uneven (patchy)
Glaring
I can recognize faces
I like the color of the light
I can't see colors well
The lighting does not match the neighborhood
I like the style of lighting
ASPEN SQUARE LODGE
LIGHTING CREATES BRIGHT AND
DARK WEDGES. THIS CHANGES
THE AMOUNT OF LIGHT REACH-
ING THE CURB.
0.6fc
7.6fc vertical
9.20fc @ back
of curb
0.76fc vertical
EDGE OF LIGHT
EDGE OF DARK
Survey Results:
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EDEN GALLERY3
APPENDIX
-1.5 -1 -0.5 0 0.5 1 1.5 2 2.5 3
Safe- day
Safe- night
Comfortable
Too much light-street
Not enough light- street
Too much light- sidewalk
Not enough light- sidewalk
Uneven (patchy)
Glaring
I can recognize faces
I like the color of the light
I can't see colors well
The lighting does not match the neighborhood
I like the style of lighting
How does the lighting in this area compare with the
lighting of similar areas at night?
EDEN GALLERY
0.7FC VERTICAL @ FRONT OF CURB,
ACROSS THE STREET
3fc VERTICAL
3.2fc vertical
1.8fc @ back
of curb
14.8fc @ GROUND
7FC VERTICAL
Survey Results:
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DANCING BEAR4
APPENDIX
-0.5 0 0.5 1 1.5 2 2.5
Safe- day
Safe- night
Comfortable
Too much light-street
Not enough light- street
Too much light- sidewalk
Not enough light- sidewalk
Uneven (patchy)
Glaring
I can recognize faces
I like the color of the light
I can't see colors well
The lighting does not match the neighborhood
I like the style of lighting
DANCING BEAR
0.4fc VERTICAL
0.4fc vertical
0.9fc @
ground
0.14fc @ GROUND
0.25fc vertical
0.5fc @
back of
curb
Survey Results:
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ASPEN SPORTS5
APPENDIX
-1.5 -1 -0.5 0 0.5 1 1.5 2 2.5 3 3.5
Safe- day
Safe- night
Comfortable
Too much light-street
Not enough light- street
Too much light- sidewalk
Not enough light- sidewalk
Uneven (patchy)
Glaring
I can recognize faces
I like the color of the light
I can't see colors well
The lighting does not match the neighborhood
I like the style of lighting
ASPEN SPORTS PED MALL
green hue
luminaire
No store front
lighting on
Dark Pedestrian
Mall
Survey Results:
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S. GALENA STREET6
APPENDIX
-1 -0.5 0 0.5 1 1.5 2 2.5 3
Safe- day
Safe- night
Comfortable
Too much light-street
Not enough light- street
Too much light- sidewalk
Not enough light- sidewalk
Uneven (patchy)
Glaring
I can recognize faces
I like the color of the light
I can't see colors well
The lighting does not match the neighborhood
I like the style of lighting
S. GALENA STREET
0.7FC VERTICAL @ FRONT OF CURB,
ACROSS THE STREET
1136 cd/m^2
1.8fc @ ground
1889 cd/m^2
2023 cd/m^2
2.1fc @ vertical
0.66fc @ ground
0.9fc @ vertical
Survey Results:
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BALENCIAGA7
APPENDIX
-2.5 -2 -1.5 -1 -0.5 0 0.5 1 1.5 2 2.5 3
Safe- day
Safe- night
Comfortable
Too much light-street
Not enough light- street
Too much light- sidewalk
Not enough light- sidewalk
Uneven (patchy)
Glaring
I can recognize faces
I like the color of the light
I can't see colors well
The lighting does not match the neighborhood
I like the style of lighting
BALENCIAGA
5fc @ ground
4fc vertical
4.5fc @
ground
3100 cd/
m^2
5FC VERTICAL
2140 cd/
m^2
6900
cd/m^2
Survey Results:
182
Page 1 of 3
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Amy Simon, Planning Director
THROUGH: Phillip Supino, Community Development Director
MEETING DATE: February 28, 2023
RE: Ordinance #3, Series of 2023, 216 W. Hyman Avenue, Establishment of
Transferable Development Rights (TDRs), PUBLIC HEARING
APPLICANT /OWNER:
Ann Mullins
REPRESENTATIVE:
BendonAdams
LOCATION:
Street Address:
216 W. Hyman Avenue
Legal Description:
Lots O and P, Block 53, City
and Townsite of Aspen,
Colorado
Parcel Identification Number:
PID#2735-124-63-006
CURRENT ZONING & USE
Single-family home
R-6, Medium Density
Residential
PROPOSED ZONING & USE:
No change
SUMMARY:
The owner of 216 W. Hyman Avenue, a landmarked property,
requests approval to create up to two Transferable
Development Rights (TDRs).
STAFF RECOMMENDATION:
Staff recommends City Council approve the removal of
developable floor area from this property as a means to
reduce future impacts to the Victorian era home on the site.
Site Locator Map – 216 W. Hyman
183
Page 2 of 3
BACKGROUND:
216 W. Hyman Avenue is a 6,000 sf lot that contains a Victorian era miner’s cottage which has
been altered over time with an expansion on the east side, an enclosed front porch, a street-facing
garage, and a basement/rear addition. These alterations occurred during the long-time ownership
of the property by Darcey and Ruth Brown, who also added some Bavarian influenced shutters
and color scheme to the home. The scale and some forms and detailing of the 19 th century
structure remain, and the property also represents early ski era architecture in the community.
A detached art studio was constructed at the rear of the lot in 2011.
Figure 1 – Sanborn Map, 1904 Figure 2 – 216 W. Hyman as seen in 2015
REQUEST OF COUNCIL:
The Applicant is requesting the following approval:
• Transferable Development Rights (Section 26.535) for the establishment of two TDRs.
The Historic Preservation Commission (HPC) is a recommending body on this application, and
Aspen City Council is the final review authority. HPC recommended in favor of creating two TDRs
at their January 11, 2023 meeting.
PROJECT SUMMARY:
216 W. Hyman is a historically landmarked property that qualifies for the preservation benefit to
sever and sell unused development rights by establishing TDRs in increments of 250 square feet.
The applicant proposes to remove 500 square feet of developable floor area from the property,
leaving approximately 500-850 square feet available for future expansion (or conversion to more
TDRs), depending on whether the property remains a single -family home or becomes a duplex in
the future.
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Page 3 of 3
STAFF COMMENTS:
For the purposes of creating TDRs, the maximum floor area currently allowed for this property is
that of a single-family dwelling up to 3,240 square feet. According to the drawings provided in the
application:
• Allowable Floor Area = 3,240 square feet
• Existing floor area = 2,241 square feet, including two new lightwells recently approved by
Community Development staff but not yet built
• Total floor area remaining = 999 square feet
The applicant requests approval to establish up to two TDRs, which will consume all but 499
square feet of allowed development rights on the site. The decision whether to proceed with the
execution of the deed restrictions and issuance of one, two, or no TDR certificates is at the owner’s
discretion. The value of the TDRs is set by the free-market and the City is not involved in the
transaction.
Staff finds that the application demonstrates the existence of unused development rights. The
proposed conversion of floor area to TDRs will not create or increase any non-conformities on the
site. Staff finds the criteria for establishing TDRs are met.
RECOMMENDATION:
Staff recommends Council approve the request to establish up to two TDRs from this historic
property.
RECOMMENDED MOTION: “I move to adopt Ordinance #3, Series of 2023 to create the
opportunity for two Transferable Development Rights to be removed from the property located at
216 W. Hyman Avenue.”
CITY MANAGER COMMENTS:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
ATTACHMENTS:
Ordinance #3, Series of 2023
Exhibit A – Transferable Development Rights (TDR) / Staff Findings
Exhibit B – Application
185
Ordinance #3, Series of 2023
216 W. Hyman Avenue
Page 1 of 3
ORDINANCE #3
(SERIES OF 2023)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING THE
ESTABLISHMENT OF TRANSFERABLE DEVELOPMENT RIGHTS FOR THE
PROPERTY LOCATED AT 216 W. HYMAN AVENUE, LOTS O AND P, BLOCK 53,
CITY AND TOWNSITE OF ASPEN, COLORADO
PARCEL ID: 2735-124-63-006
WHEREAS, the Community Development Department received an application from Ann
Mullins, represented by BendonAdams, requesting establishment of Transferable Development
Rights (TDRs) for the property located at 216 W. Hyman Avenue, Lots O and P, Block 53, City
and Townsite of Aspen; and
WHEREAS, the Community Development Department reviewed the proposed application for
compliance with the applicable review standards and recommended in favor of the establishment
of Transferable Development Rights (TDRs); and
WHEREAS, as required by Municipal Code Section 26.535.070, the Historic Preservation
Commission reviewed the application on January 11, 2023, considered the recommendation of
the Community Development Department and recommended in favor of the establishment of up
to two (2) TDRs through Resolution #1, Series of 2023, by a vote of 6 to 0; and
WHEREAS, City Council has reviewed and considered the development proposal under the
applicable provisions of the Municipal Code as identified herein, has reviewed and considered the
recommendations of the Community Development Director and the Historic Preservation
Commission; and,
WHEREAS, City Council finds that the development proposal meets or exceeds all the applicable
development standards; and,
WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the
promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF ASPEN CITY COUNCIL
AS FOLLOWS:
Section 1: Transferable Development Rights (TDR)
Pursuant to the findings set forth above, the City Council does hereby authorize the creation of up to
two (2) TDRs from 216 E. Hyman Avenue, with the following conditions:
1. The property owner may decide when and if, as warranted by the TDR market, the
development rights will be converted into certificates and sold.
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Ordinance #3, Series of 2023
216 W. Hyman Avenue
Page 2 of 3
2. Upon satisfaction of all requirements, the City and the applicant shall establish a date on which
a deed restriction on the property shall be accepted by the City and filed with the Pitkin County
Clerk and Recorder, and Historic TDR Certificates shall be validated and issued by the City.
3. Commencing with the severing of the first TDR from the property, the maximum floor area for
all development on the lot shall be reduced by 250 square feet for each TDR Certificate issued.
4. Existing and proposed floor area calculations shall be verified for compliance by the City of
Aspen Community Development Department prior to the issuance of Historic TDR
Certificates.
Section 2: Existing Litigation
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 ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 3: Severability
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 4: Public Hearing
A duly noticed public hearing on this Ordinance was held on the 28th day of February, 2023 at
5:00 PM in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior
to which hearing a public notice of the same was published in a newspaper of general circulation
within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISED as provided by law, by the City
Council of the City of Aspen on the 24th day of January, 2023.
Attest: Approved as to content:
____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
187
Ordinance #3, Series of 2023
216 W. Hyman Avenue
Page 3 of 3
FINALLY, adopted, passed and approved this _____ day of __________, 2023.
Approved as to form: Approved as to content:
____________________________ ____________________________
James R. True, City Attorney Torre, Mayor
Attest:
____________________________
Nicole Henning, City Clerk
188
Page 1 of 3
Exhibit A
Transferable Development Rights Criteria
Staff Findings
Section 26.535.070
A historic TDR certificate may be established by the Mayor if the City Council, pursuant to adoption
of an ordinance, finds all the following standards met:
A. The sending site is a historic landmark on which the development of a single -family or
duplex residence is a permitted use, pursuant to Chapter 26.710, Zone Districts. Properties
on which such development is a conditional use shall not be eligible.
Staff Findings: 216 W. Hyman is a designated historic landmark that is an eligible
sending site that can establish and sever transferable development rights (TDRs).
Single-family residential and duplex development are permitted uses in the zone
district where the property is located. Staff finds this criterion is met.
B. It is demonstrated that the sending site has permitted unbuilt development rights, for either
a single-family or duplex home, equaling or exceeding two hundred and fifty (250) square
feet of floor area multiplied by the number of historic TDR certificates requested.
Staff Findings: The applicant has provided calculations indicating that at least 999
square feet of unbuilt floor area remains on the lot. Two TDRs totaling 500 square
feet of floor area can be removed without creating any floor area deficit. Final floor
area calculations shall be verified by the City’s Zoning Department prior to TDR
issuance. Staff finds this criterion is met.
C. It is demonstrated that the establishment of TDR certificates will not create a
nonconformity. In cases where a nonconformity already exists, the action shall not increase
the specific nonconformity.
Staff Findings: The creation of TDRs will not create or increase a nonconformity.
Staff finds this criterion is met.
D. The analysis of unbuilt development right shall only include the actual built development,
any approved development order, the allowable development right prescribed by zoning
for a single-family or duplex residence, and shall not include the potential of the sending
site to gain floor area bonuses, exemptions or similar potential development incentives.
Properties in the MU Zone District which do not currently contain a single -family home or
duplex established prior to the adoption of Ordinance #7, Series of 2005, shall be permitted
to base the calculation of TDRs on 100% of the allowable floor area on an equivalent -sized
lot in the R-6 zone district. This is only for the purpose of creating TDRs and does not
permit the on-site development of 100% of the allowable floor area on an equivalent-sized
189
Page 2 of 3
lot in the R-6 zone district. If the additional 20% of allowable floor area exceeds 500 square
feet, the applicant may not request a floor area bonus from HPC at any time in the future.
Any development order to develop floor area, beyond that remaining legally connected to
the property after establishment of TDR Certificates, shall be considered null and void.
Staff Findings: The calculations of unbuilt floor area view the property as a single
family home with a maximum floor area of 3,240 square feet. The development on
the site is approximately 2,241 square feet. Staff finds that unused floor area is
available and this criterion is met.
E. The proposed deed restriction permanently restricts the maximum developme nt of the
property (the sending site) to an allowable floor area not exceeding the allowance for a
single-family or duplex residence minus two hundred and fifty (250) square feet of floor
area multiplied by the number of historic TDR certificates established.
For properties with multiple or unlimited floor areas for certain types of allowed uses, the
maximum development of the property, independent of the established property use, shall
be the floor area of a single-family or duplex residence (whichever is permitted) minus two
hundred fifty (250) square feet of floor area multiplies by the number of historic TDR
certificates established.
The deed restriction shall not stipulate an absolute floor area, but shall stipulate a square
footage reduction from the allowable floor area for a single-family or duplex residence, as
may be amended from time to time. The sending site shall remain eligible for certain floor
area incentives and/or exemptions as may be aut horized by the City Land Use Code, as
may be amended from time to time. The form of the deed restriction shall be acceptable to
the City Attorney.
Staff Findings: At the point of issuing a TDR certificate, the applicant will be required
to file a deed restriction that will permanently reduce the allowable floor area by 250
square feet per TDR. All documents shall be reviewed by the City Attorney prior to
execution.
F. A real estate closing has been scheduled at which, upon satisfaction of all relevant
requirements, the City shall execute and deliver the applicable number of historic TDR
certificates to the sending site property owner and that property owner shall execute and
deliver a deed restriction lessening the available development right of the subject property
together with the appropriate fee for recording the deed restriction with the County Clerk
and Recorder's office.
Staff Findings: This is a mandatory process that the applicant must pursue.
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G. It shall be the responsibility of the sending site property owner to provide building plans
and a zoning analysis of the sending site to the satisfaction of the Community Development
Director. Certain review fees may be required for the confirmation of bui lt floor area.
Staff Findings: The applicant has provided detailed floor area calculations as part of
the proposal. Final calculations shall be reviewed by Zoning prior to the issuance
of the TDR certificate.
H. The sale, assignment, conveyance or other transfer or change in ownership o f transferable
development rights certificates shall be recorded in the real estate records of the Pitkin
County Clerk and Recorder and must be reported by the grantor to the City of Aspen
Community Development Department within five (5) days of such transfer. The report of
such transfer shall disclose the certificate number, the grantor, the grantee and the total
value of the consideration paid for the certificate. Failure to timely or accurately report such
transfer shall not render the transferable development right certificate void.
Staff Findings: This is a mandatory process that the applicant must pursue.
I. TDR certificates may be issued at the pace preferred by the property owner.
Staff Findings: N/A
J. City Council may find that the creation of TDRs is not the best preservation solution for the
affected historic resource and deny the application to create TDRs. HPC shall provide
Council with a recommendation.
Staff Findings: HPC recommended in favor of establishing up to two (2) TDRs
through this application. HPC is a recommending body and City Council is the final
authority for granting the TDR request.
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Ordinance No. 04, Series of 2023 –Chapter 12.05 Organic Waste Diversion
MEMORANDUM
TO: Mayor Torre and City Council
FROM: Ainsley Brosnan-Smith, Waste Diversion and Recycling Program
Administrator
Jimena Baldino, Waste Diversion and Recycling Specialist
THROUGH: Tessa Schreiner, Sustainability Manager,
CJ Oliver, Environmental Health and Sustainability Director
Phillip Supino, Community Development Director
MEMO DATE:February 17, 2023
MEETING DATE:February 28, 2023
RE:Ordinance No. 04, Series of 2023 –Second Reading
Adoption of Chapter 12.05 Organic Waste Diversion
REQUEST OF COUNCIL:
Staff requests that City Council review and approve Ordinance No. 04, Series of 2023 on
Second Reading.
BACKGROUND:
On August 10, 2021, City Council adopted Resolution #76,Series 2021, directing to the
City to: “take meaningful action and provide leadership in reducing the Aspen
community’s contribution to greenhouse gas emissions by the amount which is
scientifically proven to limit global temperature change.
This will be accomplished through:
a.Maximizing efficiency and minimizing carbon emissions in all of Aspen’s
emissions inventory sectors including: Waste Reduction and Diversion,
Transportation, and the Built Environment
b.Leading climate policy and legislative efforts at local, regional, national, and
global scales”
In January 2022, City Council adopted new science-based targets for GHG emissions
reductions of 63% by 2030 and net zero by 2050, and waste reduction targets to support
these emission reductions, including:
Reduce organic material going to landfill by 25%by 2025 and 100% by 2050,
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Ordinance No. 04, Series of 2023 – Organic Waste Diversion
Reduce all waste going to landfill by 70% by 2050.
Adopting these targets supports Council’s adopted greenhouse gas emissions goal,
Aspen’s participation in the ICLEI Race to Zero campaign, and the City’s Climate Action
Plan.
Previous Council Action:
At the work session on September 6, 2022, staff presented council with an update on the
state of organic material in Aspen’s trash stream and suggested a policy that would
mandate an alternative and sustainable disposal of all organic waste. At this work
session, City Council unanimously supported a policy prohibiting the landfilling of organic
material.
At the regular meeting on February 14, 2023, Council approved of Ordinance No. 04, Series
of 2023 Chapter 12.05 Organic Waste Diversion on first reading. Council directed staff to
return on February 28, 2023 for a second reading of the ordinance. Council also advised
staff to return with additional stakeholder feedback from the restaurant sector for second
reading. A summary of past engagement, along with these visits, can be found in
Attachment B.
Why Organic Diversion?
In 2022, the Pitkin County Solid Waste Center held a waste characterization study to
determine what types of materials are discarded as landfill trash at their facility. The
previous waste characterization study occurred in 2015. The 2022 study found a 7%
increase in landfilled organics since the last study, meaning the amount of divertible,
organics material thrown away as trash increased from approximately 35% in 2015 to
approximately 42% in 2022. The City encourages residents to compost through the
offerings of free countertop compost containers, a free public drop-off for food scraps,
and free waste diversion trainings for businesses. However, voluntary participation has
been unsuccessful in growing diversion participation.
Organic material is the single largest category of material disposed of as trash in the City
of Aspen. Without a policy to mandate the diversion of organic material from the trash,
the City will not reach the waste reduction goals for 2025 or 2050. A policy that prohibits
the disposal of organics as landfill trash is the most impactful action Aspen can take to
expand participation in organics diversion and reduce its municipal solid waste
generation.
DISCUSSION:
Staff is recommending Council amend Title 12, Solid Waste, of the Aspen Municipal Code
to add a new chapter, 12.05 Organics Waste Diversion. If adopted, Chapter 12.05 will be
the most influential action taken to reduce Aspen’s municipal solid waste buried in the
Pitkin County Landfill. This mandate will return organic resources back to the community
and the local environment, promoting a zero-waste culture and more circular economy.
The purpose of this code is to decrease Aspen’s contribution to climate change through
a reduction in the landfill disposal of recoverable resources, such as food. Consequently,
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Ordinance No. 04, Series of 2023 – Organic Waste Diversion
this prohibition may influence businesses to rethink inventory purchasing and decrease
the amount of food waste that occurs due to spoilage and over purchasing. Alongside
saving space in the local landfill, keeping organics out of the trash recognizes the energy,
water, and transportation invested into growing our food and the methane generated
when these materials are landfilled.
What the Organic Waste Diversion Ordinance Does:
Chapter 12.05 prohibits the disposal of organic material as trash through three phases
over five years. Each phase of the ordinance will apply to a specific generator (e.g. retail
food establishments and commercial business) of waste until the final phase in 2028
when it applies to any occupant generating organic waste in City limits. The ordinance
does not mandate all organic material to be composted. It mandates the generator to
alternatively dispose of organic materials through a practice that recovers the resources
and returns them to the community or environment. An organic recovery practice may
include donation for human consumption, animal feed, composting, or any other practice
approved by the Environmental Health and Sustainability Department. Staff predicts most
generators to contract with an existing compost hauler since the service is immediately
available. If a generator chooses an alternative recovery practice, such as donation for
consumption, the methods for transporting and rehoming the organics will need to be
established by the generator.
The Key Elements the Organics Waste Diversion Ordinance:
Organic materials must be separated from materials thrown away as trash and
alternatively disposed of in a recoverable fashion.
Organics receptacles stored outdoors in the Commercial Core are required to be
certified wildlife-proof and approved by the Environmental Health and
Sustainability Department as compliant.
The Environmental Health and Sustainability Department is the lead department
educating the public and ensuring compliance with this code.
The ordinance will be phased-in over five years following adoption.
The Three Phases of the Organics Waste Diversion Ordinance:
1. Effective 6 months upon passage: all businesses with a City of Aspen Retail Food
License, such as restaurants, shall separate organics from substances designated
for trash disposal.
2. Effective January 1, 2026: all commercial businesses and multifamily properties
shall separate organics from substances designated for trash disposal.
3. Effective January 1, 2028: everyone within the City limits generating organic waste
shall separate organics from substances designated for trash disposal.
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Stakeholder feedback:
In winter of 2021/2022, staff approached all the retail food establishments in Aspen,
inquiring about their organic disposal practices and interest in composting organic
waste. Stakeholders expressed an overall interest in organic waste diversion for the
environmental benefits but identified wildlife safety concerns, space constraints for
additional compost receptacles, and inequitable cost burdens as the key barriers to
participation. Staff has evaluated each of these concerns and is prepared to overcome
these barriers through the mandated use of wildlife-proof containers, shared outdoor
receptacles and working with commercial businesses on a case-by-case basis to
overcome spatial challenges, and subsidizing start-up costs through the provision of
indoor receptacles and outdoor wildlife-proof containers.
After Council’s first reading approval of Chapter 12.05, on February 14, 2023, staff
approached the retail food sector, again, to inform businesses on Council’s action and
potential organics diversion requirements. The EHS department went door to door to
each restaurant, soliciting information on why the ordinance was presented, what it will
mean for their business, and how to comply with the regulations. Staff also hosted a
question-and-answer webinar discussing the ordinance and encouraged participation
from all restaurants. A recording of the webinar was shared with all contacts in the retail
food sector.
Supporting Compliance:
Staff will continue to offer free trainings on how to properly separate organics from the
trash and the importance of removing contamination. Staff will collect annual reports from
businesses on their recoverable disposal practice of choice, ask for proof in the form of a
contract or a service bill for the removal and disposal of the organic material, and make
frequent site visits to applicable establishments to check in on their organic waste
diversion strides or assistance needs.
Next Steps:
If Council approves the Organic Waste Diversion ordinance on second reading, staff will
immediately begin working with businesses in the first phase of compliance to support
them with technical assistance and other resources; the first phase shall take effect 6
months post-adoption.
FINANCIAL IMPACTS:
The Environmental Health and Sustainability Department (EHS) is prepared to subsidize
the start-up costs for businesses that hire an organic hauling service for composting by
providing businesses with a wildlife-proof container at no charge. Businesses who hire a
hauling service for composting will incur a cost for collection dependent on the frequency
of collection, size of container, and number of accounts sharing the container. Predicted
material start-up costs for a composting collection service is an estimated $490 - $1,580
per wildlife-proof container. Costs were estimated upon evaluation of current market
prices for the steel, wildlife-proof, outdoor receptacles, and the estimated volume of
organic waste generated annually.
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Ordinance No. 04, Series of 2023 – Organic Waste Diversion
EHS is committed to the purchasing of wildlife proof receptacles, as required in this
Ordinance, for all applicable commercial businesses to reduce start-up costs. For fiscal
year 2023, EHS has an existing budget of $100,000 available, and $100,000 of carry
forward dollars from 2022 (to be approved by Council in the budget process), to subsidize
the cost of the wildlife-proof containers for commercial businesses in Aspen. In addition,
EHS will purchase indoor organic collection containers for commercial kitchens to use
during meal preparation to assist with organics separation from the trash.
In addition, the current cost for servicing a trash receptacle is more expensive than
servicing a compost receptacle of the same size. With the amount of divertible, organic
material in the trash being over 40%, hiring a compost hauling service, while decreasing
the trash hauling frequency, will present cost savings to the customer.
ENVIRONMENTAL IMPACTS:
When organic waste is buried in a landfill it becomes starved for oxygen, producing a
potent greenhouse gas, methane, adding to the City’s emissions footprint. Prohibiting
the landfilling of organic waste through the adoption of Chapter 12.05 would support the
City’s commitment of Race to Zero, GHG emissions reductions targets of 63% by 2030
and net zero by 2050, and 25% reduction in organic material landfilled by 2025 and
100% by 2050.
Recovering landfilled organic material creates opportunities to feed people, feed
livestock, or create compost, and reduce greenhouse gas emissions. With the readily
available composting operation in Pitkin County, organic material is processed into a
natural, nutrient rich soil amendment and when applied to the landscape improves local
soils, water retention, and carbon sequestration capabilities that harness and stores
carbon from the atmosphere into the soils.
ALTERNATIVES:Council could choose not to approve the Organic Waste Diversion
ordinance, and instead direct staff to identify alternative policies or programs to address
the City’s landfilling of organic waste. However, this will negatively impact Council’s ability
to meet its goals of a 25% reduction by 2025 and 100% reduction by 2050.
RECOMMENDATIONS:
Staff recommends City Council approve Ordinance No. 04, Series of 2023 on second
reading.
ATTACHMENTS:
Attachment A – Title 12, Chapter 12.05, Organic Waste Diversion Ordinance
Attachment B – Business Outreach Summary
CITY MANAGER COMMENTS:
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ORDINANCE NO. 04
SERIES OF 2023
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING TITLE 12 OF THE ASPEN MUNICIPAL CODE TO ADD A NEW
CHAPTER ENTITLED “12.05 ORGANIC WASTE DIVERSION” TO INCLUDE
PROVISIONS RESTRICTING THE DISPOSAL OF ORGANIC MATERIALS AS
TRASH.
WHEREAS, the City Council for the City of Aspen has a duty to protect the environment
and the health of its citizens and visitors; and
WHEREAS, as reported by the Environmental Protection Agency, in 2021, natural
resource extraction and processing account for approximately half of global greenhouse gas
emissions; and
WHEREAS, the City of Aspen recognizes climate change is driven by the accumulation of
greenhouse gas in our atmosphere as a result of human activity; and
WHEREAS, the City committed to the Race to Zero campaign, requiring the City to
publicly endorse the following principles:
Recognize the global climate emergency.
Commit to keeping global heating below the 1.5° Celsius goal of the Paris Agreement.
Commit to putting inclusive climate action at the center of all urban decision-making, to
create thriving and equitable communities for everyone.
Invite our partners – political leaders, CEOs, trade unions, investors, and civil society – to
join us in recognizing the global climate emergency and help us deliver on science-based
action to overcome it; and
WHEREAS, Aspen City Council passed Resolution #002 Series of 2022 that established
science-based targets for reducing community greenhouse gas (GHG) emissions 63% by 2030 and
100% by 2050, based upon 2017 levels; and
WHEREAS, the 2020 Community Greenhouse Gas Emissions Inventory estimated the
landfilling of materials accounted for 16% of Aspen’s total emissions in 2020; and
WHEREAS, in 2021, Aspen City Council recognized the harmful environmental impacts
of landfilling recoverable resources and set organic waste reduction goals of, a 25% reduction of
landfilled organic material by 2025, and a 100% reduction of landfilled organic material by 2050;
and
WHEREAS, the City’s municipal waste stream is comprised of 80% divertible resources
that could have been recycled, reused, or composted, and recirculated back into the economy for
reprocessing into new goods or materials; and
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WHEREAS, in 2021, a waste assessment at the Pitkin County Solid Waste Center found
42.65% of the municipal waste stream is organic materials that could have been composted or
sustainably managed; and
WHEREAS, when organic material is buried in a landfill it becomes starved for oxygen
and produces Methane, a harmful greenhouse gas more potent than Carbon Dioxide that collects
in the Earth’s atmosphere; and
WHEREAS, the ability to recover organic material is locally available at the Pitkin County
Solid Waste Center, where an industrial composting operation processes food scraps, and
compostable materials, into a soil amendment that returns organic nutrients back into the
landscape; and
WHEREAS, the City offers organic waste diversion trainings, a free compost drop-off
center for residents, free countertop compost backets, and private haulers provide to curbside
collection services for City businesses and homeowners; and
WHEREAS, currently, separating organic material from landfill trash for composting is
voluntary, and over the last 10 years voluntary participation has diverted 4%, per year of organic
material from the landfill while the percentage of compostable, organic material disposed of in the
landfill has increased to 42.65%; and
WHEREAS, continuing at the rate of voluntary participation will not meet the City’s
organic waste reduction or GHG reduction goals, and adds to the volume of waste buried in the
local landfill; and
WHEREAS, City Council recognizes organic material diversion is integral to reducing
Aspen’s landfilled waste, and supporting the longevity of the Pitkin County Solid Waste Center;
and
WHEREAS, to have a significant impact on waste reduction and GHG emission goals,
organic materials cannot be discarded as landfill trash but should be diverted for other purposes;
and
WHEREAS, City Council has determined that the health, safety, and general welfare of
the citizens, residents, and visitors of the City of Aspen will be served by this ordinance, which
will regulate the disposal of organics within the City; and
WHEREAS, it is desired by City Council, to amend Title 12, Solid Waste, of the Aspen
Municipal Code to add a new chapter, 12.05 Organics Waste Diversion, that prohibits the disposal
of organic material as landfill trash, requiring the disposal of organics to be in an environmentally
sustainable and recoverable manner.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section 1:
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Title 12 of the Municipal Code of the City of Aspen is hereby amended by the addition of a new
Chapter 12.05 which Chapter shall read as follows:
Chapter 12.05. ORGANIC WASTE DIVERSION
Sec. 12.05.010. Definitions.
Commercial business shall mean any business where a commercial, industrial, or institutional
enterprise is carried on including, without limitation businesses holding a Retail Food License,
restaurants, retail establishments, hotels, lodges, hospitals, schools, day care centers, offices,
nursing homes, clubs, churches, and public facilities.
Compost Collection Service shall mean a hauler that is in the business of collecting and
transporting organic material from another, for a fee, to a compost processing facility.
Food Waste means all edible materials which are intended for consumption by humans or
animals, including those materials which are no longer edible due to spoilage.
Hauler means any person in the business of collecting, transporting or disposing of solid waste
for another, for a fee, in the City.
Multifamily property means an individual building, or campus of buildings, that contains
multiple, separate residential living units. Units in these buildings may be occupied by the
following types of residents:
(a)Tenants;
(b)Cooperators; or
(c)Individual owners.
Organic materials collection container for the purposes of this chapter means, a designated
organics material receptacle assigned for disposal in accordance with a Recoverable
Management Practice.
Organic means carbon-based material that can biodegrade into stable, odorless materials such as
compost or mulch, and may include but is not limited to food waste, compostable paper and
certified compostable products, yard waste, clean wood and some sludges. At a minimum,
organics shall include those materials designated by the Environmental Health and Sustainability
Department.
Recoverable Management Practice means actions taken to prevent recoverable materials, such as
organics, from end-of-life disposal through a trash diversion practice including composting,
reuse, reclaiming, mulching, or other actions approved by the Environmental Health and
Sustainability Department.
Responsible Party is the individual or entity that controls, manages, or directs the business or
dwelling. For the purpose of a multifamily property where living units are individually owned,
the responsible party is the property manages or housing authority which controls, managers, or
directs the campus.
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Trash for the purposes of this chapter means substances designated for end-of-life disposal in a
landfill, or other end-of-life disposal practice which the substances can never be recovered.
Sec. 12.05.020. Organics Diversion Requirements.
Effective after passage, the following requirements shall apply:
a) Effective September 1, 2023 commercial businesses holding a Retail Food License shall
separate organics, as defined in Sec. 12.05.010, from substances designated for trash
disposal. All organic materials must be collected and disposed of through a recoverable
management practice such as, but not limited to, donation, animal feed, composting, or
any other recoverable management practice approved by the Department of
Environmental Health and Sustainability. No organic materials shall be disposed of as
trash. The responsible party for the commercial business shall ensure all employees have
access to an organic materials collection container for the purposes of disposal separate
from trash.
b) Effective January 1, 2026, all commercial businesses, and multifamily properties shall
separate organics, as defined in Sec. 12.05.010., from substances designated for trash
disposal. All organic materials must be collected and disposed of through a recoverable
management practice such as, but not limited to, donation, animal feed, composting, or
any other recoverable management practice approved by the Department of
Environmental Health and Sustainability. No organic materials shall be disposed of as
trash. The responsible party for the premises shall ensure all employees and occupants
have access to an organic materials collection container for the purposes of disposal
separate from trash.
c) Effective January 1, 2028, every owner or occupant of a premises within the City,
including all premises located in a Residential Zone District as defined in this Code,
generating organic waste shall separate organic materials, as defined in Sec. 12.05.010,
from substances designated for trash disposal. All organic materials must be collected
and disposed through a recoverable management practice such as, but not limited to,
donation, animal feed, composting, or any other recoverable management practice
approved by the Department of Environmental Health and Sustainability. No organic
material shall be disposed of as trash. The responsible party for the premises shall ensure
all employees and occupants have access to an organic materials collection container for
the purposes of disposal separate from trash.
Sec. 12.05.030. Container Requirements.
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All commercial businesses, and every owner or occupant of a premises within the City must
comply with the provisions of Chapter 12.08 Wildlife Protection and adhere to the following
stringent requirements when storing organic materials outside for a compost collection service:
a) Commercial businesses in the Commercial Core as defined in this Code are required to
use certified wildlife-proof receptacle as designated by the City of Aspens when storing
organic waste outside, including in the public right-of-way.
b) All receptacles used for the purpose of organics collection must be labeled with the name
of the business, establishment, or person utilizing the container. Labeling a receptacle
with only an address does not meet the standards of this section.
Sec. 12.05.040. Enforcement.
a) As requested by the Department of Environmental Health and Sustainability, commercial
businesses must provide proof of organic separation and the means in which the organic
material is designated for a recoverable management practice. Proof may be provided in
the form of collection bill or contract with a compost collection service or by proof of
another recovery practice of choice.
b) Enforcement officers, or City designated officials, may inspect the contents of solid waste
containers placed on City property, such as City Right of Ways, for compliance.
Sec. 12.05.050. Exemption for Public Trash Containers.
a) It shall not be considered a violation of this chapter if organics are placed in a trash
container made available by a commercial business for use by the public, commercial
customer, and pedestrians.
Sec. 12.05.060. Violations and Penalty.
a) Violation of the provisions of this Chapter by any person, firm, business, or corporation,
hauler, or owner or occupant shall be unlawful and subject to the penalty provisions in
section 1.04.080 of this Code. Each violation shall constitute a separate offense.
Sec. 12.05.070. Education.
a) The City of Aspen Environmental Health Department shall provide training materials, and
signage to commercial businesses. The responsible party for each commercial business
shall provide training to employees at a frequency and with those means, tools, signage,
and multi-lingual materials needed to effectively communicate the requirements for
complying with this Code and regulations promulgated hereunder within a thirty (30) days
from an employee’s date of hire, and at least annually thereafter.
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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 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 public hearing on this ordinance was held on the ___ day of ____ 2023, 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.
INTRODUCED AND READ,as provided by law, by the City Council of the City of Aspen on the
14th day of February 2023.
ATTEST:
____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
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FINALLY,adopted, passed and approved this ____ day of _____ 2023.
ATTEST:
_____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
APPROVED AS TO FORM:
_____________________________
James R. True, City Attorney
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Summary of Retail Food Business Outreach on Organics Diversion
From November 2021 through January 2022, staff engaged 86% of retail food establishments in
Aspen that do not compost their organic waste. Outreach efforts involved in person visits to
restaurants, dispersal of information through email, a webinar session, and a survey to collect
data on waste habits.
Restaurant owners and managers expressed high interest in organic waste diversion for the
environmental benefits but identified key barriers to entry for composting organic materials. Top
barriers identified by business include:
Internal and external space constraints
Costs of services
Educating staff
Wildlife safety
When asked if the City should support businesses in diverting their organics from the landfill the
majority of respondents answered “yes”. This was followed up with a question asking how the
City could support business and the top answers were:
City provision of organic collection containers
Subsidized hauling services.
In February of 2023, staff approached the retail food sector to inform businesses of Council’s
first reading approval of Chapter 12.05 – Organic Waste Diversion, and requirements that could
affect them in September of 2023, should this ordinance pass on second reading. Staff
approached restaurants in Aspen through door-to-door outreach, emails, and hosted a question-
and-answer webinar that was recorded and provided to those unable to attend.
Staff has incorporated this feedback into Chapter 12.05 – Organic Waste Diversion and will
prioritize the identified barriers to entry in the roll-out and ongoing programming
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MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Ben Anderson, Community Development Deputy Director
THROUGH:Phillip Supino, Community Development Director
MEMO DATE:February 18, 2023
MEETING DATE:February 28, 2023
RE:Second Reading, Ordinance #05, Series of 2023
Aligns Aspen’s general fee schedule with the provisions in the newly
adopted building and energy codes and the new Renewable Energy
Mitigation Payment calculator tool.
REQUEST OF COUNCIL:
City Council is asked to review and approve Ordinance #05, Series 2023 at Second
Reading.
Ordinance #05, Series of 2023 would delete a specific table in Aspen’s fee schedule in
Municipal Code Section 2.12.100. This table describes previously adopted fees and
summaries of calculation methods for the Renewable Energy Mitigation Payment (REMP)
program.
UPDATE FROM FIRST READING:
City Council did not have any questions or requests for additional information at First
Reading. No changes have been made to the draft Ordinance.
SUMMARY AND BACKGROUND:
On January 24, 2023, Council approved Ordinance #01, Series of 2023 that adopted the
2021 ICC Building and Energy Codes, including Aspen specific amendments. Important
to the local amendments were new provisions related to the long-standing REMP
program. In previous application of the REMP requirements, there were three elements
in determining potential REMP payments: the adopted code in Title 8, a calculator tool
that is published on ComDev’s website, and a very basic description of the REMP fees in
Title 2.
With the new provisions in the 2021 building and energy codes and the proposed adoption
of a new REMP calculator tool (Resolution will be considered by Council on February
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Staff Memo
Ordinance No. 05, Series of 2023, Second Reading
28th) that responds to the new provisions, the existing table in the fee schedule in Title 2
will be obsolete. This Ordinance would delete the REMP table in Title 2. It is not currently
used by staff or the development community in calculating REMP fees and does not
provide enough information to conduct an accurate calculation. Currently, the calculator
tool is the method to determine any required payments. The new, proposed calculator will
serve that same purpose moving forward.
Additionally, the REMP is ultimately an impact fee with complex calculations and
requirements that are connected to regulatory requirements – much like Aspen’s
affordable housing mitigation requirements. In terms of organization within the code, this
deletion in the general fee schedule would be consistent with how other impact fees are
described.
CONCLUSION AND NEXT STEPS
Put most simply, the Ordinance will bring consistency across the municipal code in
responding to the adoption of the new building and energy codes and the new
requirements in the REMP program. This Ordinance will not change policy or regulatory
outcomes. Instead, it ensures clarity in code administration.
At the regular meeting on February 28th, Council will also consider Resolution #027,
Series of 2023 related to the new REMP calculator tool.
RECOMMENDATIONS:
Staff recommends that Council approve Ordinance 05, Series of 2023, on Second
Reading.
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Ordinance #05, Series of 2023
Amendment to Section 2.12.100
Page 1 of 3
ORDINANCE #05
SERIES OF 2023
AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING CITY OF ASPEN
MUNICIPAL CODE SECTION 2.12.100. – BUILDING AND PLANNING FEES
RELATED SPECIFICALLY TO THE RENEWABLE ENERGY MITIGATION
PAYMENT FOR EXTERIOR ENERGY USES ON RESIDENTIAL AND
COMMERCIAL DEVELOPMENT.
WHEREAS,On January 24, 2023, City Council passed at second reading Ordinance No.
1, Series of 2023, adopting 2021 Editions of certain International Building Codes with City of
Aspen specific amendments; and,
WHEREAS,Ordinance No. 1, Series of 2023 amended certain provisions of the City’s
long-standing Renewable Energy Mitigation Payment program including changes to the
calculation of program fees; and,
WHEREAS,Aspen Municipal Code Section 2.12.100 – Building and Planning fees,
effective January 1, 2022 sets forth base fees related to the Renewable Energy Mitigation Payment
program; and,
WHEREAS,the fees set forth for Renewable Energy Mitigation Payment in Aspen
Municipal Code Section 2.12.100 – Building and Planning Fees conflict with the method to
calculatesuch fees set forth in Ordinance No. 1, Series of 2023 and the Residential Energy Program
Payment calculator tool approved by City Council and utilized by City staff to calculate fees
charged in association with Residential Energy Mitigation Payment program; and,
WHEREAS,the Residential Energy Mitigation Payment program calculator tool will be
adopted by City Council by Resolution and may be amended from time to time by subsequent
Resolution, which approval and amendments, if any, will be published on the City of Aspen
Community Development’s website;and,
WHEREAS, this ordinance is intended to amend Aspen Municipal Code Section 2.12.100
– Building and Planning Fees to remove all scheduled fees applicable to Renewable Energy
Mitigation Payment, as such fees will be calculated pursuant to Ordinance No. 1, Series of 2023.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO THAT:
Section 1:
The table in the City of Aspen Municipal Code section 2.12.100 –Building and Planning,
Renewable Energy Mitigation Payment is hereby deleted in its entirety. All references to fees for
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Ordinance #05, Series of 2023
Amendment to Section 2.12.100
Page 2 of 3
Renewable Energy Mitigation Payment shall be removed from the City of Aspen Municipal Code
Section 2.12.100.
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 anysection, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held
invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining portions
thereof.
INTRODUCED AND READ,as provided by law, by the City Council of the City of Aspen on the
14th day of February2023.
ATTEST:
_____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
FINALLY,adopted, passed, and approved this 28th day of February2023.
ATTEST:
_____________________________ ____________________________
Nicole Henning, CityClerk Torre, Mayor
APPROVED AS TO FORM:
_____________________________
James R. True, City Attorney
208
Ordinance #05, Series of 2023
Amendment to Section 2.12.100
Page 3 of 3
209
Page 1 of 3
Staff Memo
Resolution #027, Series 2023
MEMORANDUM
TO: Mayor Torre and Aspen City Council
FROM: Bonnie Muhigirwa, Chief Building Official
Denis Murray, Plans Examination Manager
Nick Thompson, Plans Examiner/Inspector III THROUGH: Ben Anderson, Community Development Deputy Director
Phillip Supino, Community Development Director
MEMO DATE: February 21, 2023
MEETING DATE: February 28, 2023
RE: Resolution #027, Series of 2023
Adoption of the REMP Calculator Tool
REQUEST OF COUNCIL:
City Council is asked to approve Resolution #027, Series of 2023 to adopt a new
Renewable Energy Mitigation Program calculator tool.
BACKGROUND AND SUMMARY:
The Renewable Energy Mitigation Program (REMP) was established in 1999 to offset the
energy use of exterior amenities including snowmelt, pools, and spas by requiring an
equivalent on-site renewable energy system or a payment option which is used to fund
community renewable and efficiency projects.
On January 24, 2023, Council approved Ordinance #01, Series of 2023 that adopted the
2021 Building and Energy Codes with Aspen specific amendments including an
expansion to the existing REMP program. The new Energy Code requires additional types
of energy use to be offset including outdoor heating for both commercial dining and
residential uses, roof and gutter heat tape, and gas fireplaces. Also new to this adoption
is a residential exterior energy budget which limits exterior energy use to 200,000,000
BTU/year (British thermal units) per building site distributed among the types of regulated
energy. These code changes necessitated updated calculations for the required amounts
of renewables (or equivalent payment option) needed to offset the various amenity loads
and indicate whether a site is within their energy budget. The new REMP calculator
includes these calculations and makes them easily accessible to applicants and staff
through a link to the Excel file published and widely available on the City of Aspen website.
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Page 2 of 3
Staff Memo
Resolution #027, Series 2023
DISCUSSION:
The latest design of the REMP calculator is the industry standard for Colorado mountain
communities. The calculator was built by Resource Engineering Group (REG). August
Hasz, P.E. with REG has designed numerous mechanical systems in the Aspen area and
has worked with mountain communities throughout Colorado to optimize their REMP
programs. Pitkin County, Basalt, and Crested Butte are currently using a version of this
calculator and Summit County, Breckenridge, Eagle County, Eagle, and Vail are in the
process of adopting it.
Rather than listing REMP credit fees in an ordinance fee schedule as has been done in
the past, these values are calculated and listed solely in the REMP calculator. This
provides better transparency on where those numbers come from and makes them easier
to adjust if needed in the future. This method has been accepted in other mountain
communities as best practice. There is a background calculations tab that clearly shows
the foundational values that serve as the basis of the tool; including the equipment run
times, climate data, and other variables and assumptions used to calculate the amount
of energy used by amenities according to standard engineering practice. The offset
credits, which include on-site renewables and heat pumps or a payment option, are
transparently calculated according to local installation costs and standard engineering
practices.
Description of use
The REMP calculator has separate tabs for residential and commercial projects. The
applicant enters the square footage of proposed snowmelt, pool, or spa; the wattage of
proposed heat mats, heat tape, or outdoor heaters; and the Btus of proposed interior and
exterior fireplaces. For gas powered systems, the boiler efficiency is also entered. The
calculator then outputs the kW of on-site solar photovoltaic (PV) needed to fully offset the
energy use and the equivalent payment in lieu option. For residential projects the total
annual energy use gets totaled and verified to stay under the residential exterior energy
budget of 200,000,000 Btus/year.
There are also new tabs in the calculator for existing residential and commercial energy
uses for application on remodel projects. Uses that are to be removed or replaced are
input (square footage, wattage, or Btus as applicable) along with the REMP payment
option amount originally paid and the date of the certificate of occupancy or letter of
completion for the installation of that use. The calculator then prorates credit such that a
10-year-old system would get credit for half of the original amount paid in lieu while a 20-
year-old system would receive no credit. The 20-year metric comes from the assumed
life of an onsite PV system. This is the same method used by Pitkin County and other
communities but is now more clearly documented in this calculator.
The existing residential tab also requires the input of any existing but to remain exterior
energy uses so that they can be included in the total residential exterior energy budget of
200,000,000 Btus/year.
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Page 3 of 3
Staff Memo
Resolution #027, Series 2023
The REMP payment option is voluntary. Applicants may alternatively choose to produce
on-site renewable energy or use energy efficient technologies to offset energy uses.
These on-site renewable and efficient credit options include solar PV, solar thermal,
ground source heat pumps, air source heat pumps, or other alternatives such as wind or
hydroelectric. The REMP calculator has inputs and specific requirements for each of
these credit options.
The solar PV tab has been updated to account for not just orientation and tilt but also
determines if the panels will shed snow; these variables are then used to determine an
actual generation size. Air source and ground source heat pumps do not generate energy,
but they do significantly reduce the amount of energy used and therefore may be used
for a degree of credit. The calculator has inputs for heat pump capacity and efficiency
with minimum requirements to ensure that they will operate effectively in our climate.
The REMP calculator sums up all proposed energy uses and subtracts all credits from
both on-site renewables and existing systems that are removed. If the credits do not
completely offset the proposed energy uses, a REMP payment-in-lieu amount is
determined. The calculator is saved to PDF and retained as the official record for the
project.
CONCLUSION AND NEXT STEPS:
The new Aspen REMP calculator is based off standards used in other mountain
communities and has been tailored to Aspen’s unique and progressive amendments −
including the residential exterior energy budget and the inclusion of energy amenities
such as gas fireplaces. The calculator is a crucial tool for the implementation of the Energy
Code passed through Ordinance #01, Series of 2023. Once adopted, the REMP
calculator tool will be located on Community Development’s web page.
Any future, technical changes to the REMP calculator could be approved by a subsequent
Council Resolution. More substantial changes to the REMP calculator that might reflect
a policy change or respond to foundational issues within the REMP program would be
implemented via future Ordinance.
RECOMMENDATIONS:
Staff recommends that Council approve Resolution #027, Series of 2023.
EXHIBITS:
A – Link to Renewable Energy Mitigation Tool:
https://aspen.gov/DocumentCenter/View/9176
212
Resolution #027, Series of 2023
REMP Calculator Tool
Page 1 of 2
RESOLUTION #027
SERIES OF 2023
AN RESOLUTION OF THE ASPEN CITY COUNCIL ADOPTING A CALCULATOR
TOOL RELATED TO THE RENEWABLE ENERGY MITIGATION PROGRAM (REMP).
WHEREAS,On January 24, 2023, City Council passed at second reading Ordinance No.
1, Series of 2023, adopting 2021 Editions of certain International Building Codes with City of
Aspen specific amendments; and,
WHEREAS,Ordinance No. 1, Series of 2023 amended certain provisions of the City’s
long-standing Renewable Energy Mitigation Program including changes to the calculation of
program fees; and,
WHEREAS,The City of Aspen’s Building Department has previously utilized a
spreadsheet (calculator tool) to determine any required REMP payment as part of building permit
review; and,
WHEREAS, this spreadsheet has been published on the Community Development website
for the use by the staff and the public; and,
WHEREAS,the policies established in Ordinance No. 1, Series of 2023 require an update
and redesign of the Residential Energy Program payment calculator tool approved by City Council
and utilized by City staff to calculate fees charged in association with Residential Energy
Mitigation Payment program.
WHEREAS, the adopted Residential Energy Program payment calculator tool will be
published on the Community Development web page located at www.apsen.gov.
NOW, THEREFORE BE IT BE RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO THAT:
Section 1:
This Resolution approves an updated Residential Energy Mitigation Program payment calculator
tool as depicted in Exhibit A and published on the City of Aspen’s Community Development
Department web page.
Section 2:
Future updates to the Residential Energy Program Payment calculator tool of a technical nature
may be subsequently approved by City Council Resolution. Any alternations that are connected
to more substantial policy changes or other fundament aspects of the REMP program shall first be
approved by Ordinance.
213
Resolution #027, Series of 2023
REMP Calculator Tool
Page 2 of 2
Section 3:
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 4:
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 5:
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.
Adopted, passed, and approved this 28th day of February 2023.
ATTEST:
_____________________________ ____________________________
Nicole Henning, City Clerk Torre, Mayor
APPROVED AS TO FORM:
_____________________________
James R. True, City Attorney
EXHIBITS:
A – Depictions of the distinct pages of the REMP calculator tool spreadsheet
214