HomeMy WebLinkAboutagenda.council.regular.20070924
CITY COUNCIL AGENDA
September 24, 2007
5:00 P.M.
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT
on the agenda. Please limit your comments to 3 minutes)
V. Special Orders ofthe Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters may be adopted together by a single motion)
a) Resolution #76,2007 - 2008 CIRSA Renewal
b) ARC Advisory Committee Appointments
c) Resolution #77,2007 - Contract LED Lighting Package for Wheeler
d) Resolution #78, 2007 - Construction Mitigation Air Quality Grant
e) Resolution #79, 2007 - Designating Aspen Times Weekly as Legal Publication
f) Board Appointments
g) Minutes - September 10, 2007
VII. First Reading of Ordinances
a) Ordinance #42, Series of 2007 - 208 E. Hallam TOR's (Frost Barn) P.H. 11/26
VIII. Public Hearings
a) Ordinance #5, 2007 - Lodge At Aspen Mountain
b) Ordinance #24,2007 - Vacation of Dean Street
c) Ordinance #37,2007 - Amendment to Commercial Core Moratorium
d) Ordinance #25, 2007 - Jerome Professional Building Subdivision (cont to 10/9)
IX. Action Items
X Adjournment
Next Regular Meeting October 9, 2007
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
VIa-
MEMORANDUM
TO:
Mayor and Council
THRU:
Paul Menter, Finance Direct
FROM:
Peggy Carlson, Risk Manager
DATE:
September 11, 2007
Resolution # 1{,J, Acceptance of2008 Property/Casualty Insurance
Policy Rene~mium Quote
RE:
SUMMARY: This resolution authorizes the City Manager to execute the acceptance of
CIRSA's premium quote for the 2008 renewal of the City's property/casualty insurance
Coverage (Attachment A). I recommend that Council approve the resolution.
PREVIOUS COUNCIL ACTION: None.
DISCUSSION: The proposed CIRSA coverage for 2008 includes property coverage
(including auto damage), liability coverage (including general liability, auto liability, law
enforcement liability and public officials errors and omissions liability), and crime
coverage which insures the City for theft of money, employee dishonesty, etc.
FINANCIAL IMPLICATIONS: Staff requested that CIRSA provide the 2008 quote
based on the same deductibles per claim that were in place in 2007. The deductibles are
$10,000 for liability claims, $5,000 for auto liability (damage to a third party vehicle),
$10,000 for auto physical liability (damage to a City vehicle) and $10,000 for property
damage. The 2007 premium for this coverage was $324,324. The quote for 2008 is
$330,218. The increased premium has been built into the 2008 budget.
The insurance market has experienced catastrophic losses in recent years and costs have
been passed on to insureds in the form of significant increases in premiums. Premiums
have also increased due to large losses in the areas of public officials and police liability.
The City's 2008 premium, however, has increased very minimally due to the hard work
of City employees to reduce our losses.
RECOMMENDATION: I recommend that the City Council authorize the City
Manager to execute the acceptance of CIRSA's 2008 insurance premium quote in the
amount of$330,218.
AL TERNA TIVES: A decision to withdraw from CIRSA would require the City to look
for another insurance carrier. In the current insurance market, there are very few, if any
carriers who are willing to insure municipalities. The other option would be to self-
insure for all losses.
PROPOSED MOTION: "I move to approve Resolution #~authorizing the City
Manager to execute the Acceptance of the premium quote for the City of Aspen's 2008
CIRSA property/casualty insurance."
CITY MANAGEa~~~~~S~
o.~
Attachment:
A - Proposed 2008 Property/Casualty Coverages
B - 2008 Property/Casualty Preliminary Contribution Quote
C - Acceptance of Preliminary Quote
RESOLUTION NO. ~
(SERIES OF 2007)
A RESOLUTION OF THE CITY COUNCIL OF ASPEN, COLORADO, APPROVING
THE RENEWAL OF THE CIRSA PROPERTY/CASUALTY INSURANCE POLICY
FOR THE CITY OF ASPEN FOR 2008, AND AUTHORIZING THE CITY MANGER
TO EXECUTE THE ACCEPTANCE OF THE PREMIUM QUOTE ON BEHALF OF
THE CITY OF ASPEN
WHEREAS, there has been submitted to the City Council the Premium Quote for
2008 CIRSA Property/Casualty Insurance Policy for the City of Aspen, Colorado, a copy
of which is annexed hereto and part hereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby approves the CIRSA Premium
Quote for 2008 Property/Casualty Insurance Policy for the City of Aspen, Colorado, a
copy of which is annexed hereto and incorporated herein, and does hereby authorize the
City Manager to execute said Acceptance of Premium Quote on behalf of the City of
Aspen.
Dated:
Michael C. Ireland, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of the that resolution adopted by the City Council of
the City of Aspen, Colorado, at a meeting held ,2007.
Kathryn S. Koch
ATTACHMENT A
PROPOSED 2008 PROPERTY/CASUALTY COVERAGES
The types and monetary limits of the proposed coverages to be provided to CIRSA Property/Casualty
members for the applicable coverage period(s) are generally described below. The scope, terms,
conditions, and limitations of the coverages are governed by the applicable excess and/or reinsurance
policies, the CIRSA Bylaws and Intergovemmental Agreement, and other applicable documents.
I. TYPES OF COVERAGES (subject to the limit on CIRSA's liability as described in Section II
below):
A. Property coverage (including auto physical damage)
B. Liability coverage:
I. General liability
2. Automobile liability
3. Law enforcement liability
4. Public officials errors and omissions liability
C. Crime coverage (including employee dishonesty and theft of money and securities)
II. CIRSA RETENTIONS, Loss FUNDS, AGGREGATE LIMITS, AND MEMBER DEDUCTIBLES:
For the coverages described in Section I, CIRSA is liable only for payment of the applicable self-
insured retentions and only to a total annual aggregate amount for CIRSA members as a whole of the
amount of the applicable CIRSA loss fund for the coverage period. There is no aggregate excess
coverage over any loss fund.
Coverages in excess ofCIRSA's self-insured retentions are provided only by the applicable excess
insurers and/or reinsurers in applicable excess and/or reinsurance policies, and shall be payable only
by those excess insurers and/or reinsurers. The limits of coverage provided by the excess insurers
and/or reinsurers for the coverage period shall be described in the coverage documents issued to the
members. Aggregate and other limits shall apply as provided in said documents.
A. CIRSA PROPOSED SELF-INSURED RETENTIONS FOR THE COVERAGE PERIOD:
I. $500,000 per claim/occurrence property
2. $600,000 per claim/occurrence liability
3. $600,000 each and every claim Public Officials liability
4. $150,000 per claim/occurrence crime
B. CIRSA Loss FUND AMOUNTS FOR THE COVERAGE PERIOD:
Loss fund amounts are as adopted or amended from time to time by the Board of Directors
based on the members in the Property/Casualty Pool for the year and investment earnings on
those amounts. Information on the current loss fund amounts is available from the Chief
Financial Officer.
Attachment A (continued)
C. PROPOSED EXCESS INSURANCE LIMITS FOR THE COVERAGE PERIOD:
3. Excess crime (optional):
to $500.5 million each claim/occurrence
to $5 million each claim/occurrence (except excess auto
liability: to $1.5 million each claim/occurrence); $10,000,000
annual aggregate for public officials errors and omission
liability
to $2 million per claim/occurrence
I. Excess property:
2. Excess liability:
D. MEMBER DEDUCTIBLES:
A member-selected deductible shall apply to each of the member's claims/occurrences.
Payment of the deductible reduces the amount otherwise payable under the applicable CIRSA
retention. Allocated loss adjustment expenses are included in the member deductible.
III. Loss CONTROL STANDARDS AUDIT SCORE CREDIT
CIRSA members who received a Loss Control Standards Audit Score of 85 or higher in 2007, and
renew their membership in 2008, are eligible for a Loss Control Standards Audit Score Credit. Refer
to ATTACHMENT B for the amount of this credit, if any. Under the Loss Control Standards Audit
Score Credit Program, you have three options for utilizing this credit. You may:
A. Place all or any portion of the amount in your Loss Control Credit Account, to be used as
reimbursement for approved safety-related purchases; or
B. Credit all or any portion of the amount against your 2008 contribution; or
C. Receive all or any portion of the amount in the form of a check in January 2008.
IV. Loss CONTROL CREDIT ACCOUNT
The Board has approved member's use of any balance in the Loss Control Credit Account, except any
Special Credit monies, to pay 2008 contributions. Your entity's balance in this account on August 15,
2007, if any, is shown on ATTACHMENT B. This is an optional credit. You can elect to use all or
any portion of the credit balance (except Special Credit monies) available. If elected, the credit can
onlv be applied to your 2008 contribution.
V. PURSUIT AND EMERGENCY VEHICLE OPERATIONS CREDIT PROGRAM
CIRSA members with a police department, who have adopted an approved policy with the three key
provisions ofCIRSA's Sample Pursuit and Emergency Vehicle Operations Policy and renew their
membership in 2008, are eligible for a Pursuit and Emergency Vehicle Operations Credit in 2008.
Refer to ATTACHMENT B for the amount of this credit, if any. Under the Pursuit and Emergency
Vehicle Operations Credit Program, you have three options for utilizing this credit. You may:
A. Place the amount in your Loss Control Credit Account, to be used as reimbursement for
approved safety-related purchases; or
Attachment A (continued)
B. Credit the amount against your 2008 contribution; or
C. Receive the amount in the form of a check in January 2008.
VI. PRELIMINARY QUOTATION FOR 2008 PROPOSED PROPERTy/CASUALTY COVERAGES
The preliminary quotation is shown in ATTACHMENT B. It is for the proposed coverages along
with administrative costs, claims servicing fees, and a reserve fund contribution, if applicable. The
quote contemplates the exposures stated in your 2008 renewal application and all Application
Amendment Requests received by CIRSA through August 9, 2007 and includes the deductible
options you requested.
Do not pay the amount of this preliminary quotation. It is provided only for your
information and to provide a basis upon which you can decide whether to continue
Property/Casualty coverage through CIRSAfor 2008. Final invoices for 2008 will be mailed
to members on January 1,2008.
VII. ACCEPTANCE PROCEDURES
Please complete the enclosed acceptance form indicating your decision for 2008, and return it to the
CIRSA office on or before Monday, October 1, 2007. Failure to return the form in time may
result in the imposition of penalties under CIRSA Bylaw Article XIV upon withdrawal. You
may fax the acceptance form to CIRSA at (800) 850-8950 and follow with a hard CODV bv mail.
VIII. WITHDRAWAL PROCEDURES (if applicable)
The enclosed Article XIV of the CIRSA Bylaws describes withdrawal procedures from CIRSA.
Written notice of withdrawal must be received by CIRSA no later than Monday, October 1,
2007, for a withdrawal without penalty effective January 1, 2008. Article XIV should be read in
its entirety for any penalties, which would otherwise apply. Withdrawing members who subsequently
apply to rejoin CIRSA may be subject to such terms and conditions as established by the CIRSA
Board of Directors.
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Acceptance of Preliminary Property/Casualty Quotation
Attachment C
MUST BE RECEIVED AT THE CIRSA OFFICE
ON OR BEFORE MONDAY, OCTOBER 1, 2007
Complete, sign, and return this form if your entity has decided to accept CIRSA's Preliminary
Property/Casualty Quotation for 2008.
*******************************************************************************
ACCEPTANCE OF PRELIMINARY
PROPERTY/CASUALTY QUOT AnON
This is to notify CIRSA that the City of Aspen accepts the following preliminary quotation for
property/casualty coverage for 2008 (check and fill in as applicable):
A-
The City of Aspen accepts the preliminary 2008 quotation of $ (.q 1V 'd I f(
with the same deductibles as 2007 (listed below): '
$ 10.000 Liability Deductible*
$ 5,000 Auto Liability Deductible
$ 10,000 Property Deductible
$ 10,000 Auto Physical Damage Deductible
The City of Aspen accepts the preliminary 2008 quotation of $
with new deductibles of:
Liability Deductible*
Auto Liability Deductible
Property Deductible
Auto Physical Damage Deductible
$
$
$
$
* A $500 deductible quotation is offered to members, if requested,for property, auto
physical damage, auto liability and general liability. However, police professional and
public officials errors and omissions deductibles cannot go below $1,000.
AUTOMOBILE MEDICAL PAYMENTS, PREMISES MEDICAL PAYMENTS AND
UNINSURED/UNDERINSURED MOTORIST OPTIONAL COVERAGE
Based upon the selections made in your 2008 Property/Casualty Renewal Application, the City of
Aspen has elected:
Not to participate in Automobile Medical Payments Coverage, and
Not to participate in Premises Medical Payment Coverage, and
To participate in UninsuredlUnderinsured Motorist Coverage.
If this is incorrect, or you wish to change your selection at this time, please contact your underwriting
representative at (800) 228-7136 or (303) 757-5475.
** Indicates the selection is a change from your entity's selection in 2007.
Acceptance of Preliminary Property/Casualty Quotation
Page 2
Attachment C (continued)
Loss CONTROL STANDARDS AUDIT SCORE CREDIT
Please indicate below how you would like to utilize your 2008 Loss Control Standards Audit Score
Credit, if applicable:
Apply $
contribution.
of the credit towards our 2008 Property/Casualty
Apply $
Compensation contribution.
L Deposit $ q I qf.; 0
January I, 2008.
Send us a check for $
of the credit towards our 2008 Workers'
of the credit in our Loss Control Credit Account on
of the credit after January 1,2008.
Loss CONTROL CREDIT ACCOUNT
Please indicate below how you would like to utilize your Loss Control Credit Account Balance, if
applicable:
of the credit towards our 2008 Property/Casualty
Apply $
contribution.
Apply $ of the credit towards our 2008 Workers'
Compensation contribution.
~ Keep the full amount in our Loss Control Credit Account and do not reduce our
contribution.
PURSUIT AND EMERGENCY VEHICLE OPERATIONS CREDIT
Please indicate below how you would like to utilize your 2008 Pursuit and Emergency Vehicle
Operations Credit, if applicable:
Apply the credit towards our 2008 Property/Casualty contribution.
Apply the credit towards our 2008 Workers' Compensation contribution.
l Deposit the credit in our Loss Control Credit Account on January I, 2008.
Send us a check for the amount of the credit after January I, 2008.
Acceptance of Preliminary Property/Casualty Quotation
Page 3
Attachment C (continued)
THIS IS NOT A BILL. AN INVOICE WILL BE SENT ON JANUARY 1. 2008.
The undersigned is authorized to accept this preliminary quotation on behalf of the City of Aspen.
We accept this preliminary quotation for January 1, 2008 to January 1, 2009. We
understand our final invoice may increase/decrease depending upon the number of
C1RSA Property/Casualty members for 2008, actual excess insurance premiums, and
any changes made to our 2008 renewal application.
Signature:
Title:
Date:
Signature must be that of the Mayor, Managet,Clerk; or equivalent (such as
President of a Special District.)
Vlb
MEMORANDUM
TO:
MAYOR & CITY COUNCIL
FROM:
TIM ANDERSON, RECREATION DIRECTOR
CC:
JEFF WOODS, MANAGER OF PARKS & RECREATION
DATE:
SEPTEMBER 7, 2007
RE:
APPOINTMENT OF NEW ASPEN RECREATION CENTER
ADVISORY COMMITTEE MEMBER
Request of Council: The ARC Advisory Committee is recommending to City Council
the approval of Laura Kornasiewcz and Dr. Gordon Gerson to the Committee as
identified in the agreement between the City of Aspen and Friends for the Aspen Sports
and Recreation Complex (SPARC) see attachment "A".
Background: As identified in section 2. (a) (iii) and (iv) Council will appoint one
member to represent the interests of the swimming pool facilities and one member to
represent the general public interests relative to the ARC facilities. The ARC Advisory
Committee and staff solicited at the ARC, for interested individuals who would like to
serve on the committee. Four (4) individuals submitted their name to be considered by
the Advisory Committee and one existing board member wished to remain on the
Committee.
The Committee is recommending moving current committee member Laura
Kornasiewicz whose term has expired and who had been the swimming representative, to
the role of the General Public representative. The reason for this is that Laura has
children active in the swim program and hockey, as well as she serves as an Aspen
School District Board member and has a great interest in the relationship between the
Schools and the ARC as well as a wealth of knowledge and concern for the youth of our
community.
To fill the vacated position of a swimming representative, the Advisory Committee is
recommending the approval of Dr. Gordon Gerson, President-Elect Western Slope
League of Colorado Swimming and active Aspen Speedos Swim Team Board member to
be approved.
Recommended Action: Staff and the ARC Advisory Committee are recommending
the approval of Laura Kornasiewicz as the General Public Interest member of the ARC
Advisory Committee and Dr. Gordon Gerson as the Swimming Interests representative of
the Advisory Committee.
Proposed Motion: I motion to approve Laura Kornasiewcz and Dr.
Gordon Gerson as newly appointed members of the ARC Advisory Committee.
City Manager Comments:
Attachments:
"A" - pages 3 & 4 of the agreement between the City of Aspen and SP ARC
AUG-05-03 13:53 FROM:HOLLANDHART
1D:9709259415
PAGE
4/14
~,,~h,c..\-1. \\ \\."
servlces offered wiL':1in the Aspen Recreation Center and the coordination thereof vlith the
existing City of Aspen Ice Garden; and
\VREREAS, the City Council desires to execute an Agreement, in substantially the form
as appended hereto as Exhibit A, 'VYith SP ARC that clarifies and incorporates prior commitments
to SP ARC and its private donors.
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO, THAT
-",
Section 1. Establishment of Aspen Recreation Center Advisory Committee. There is
hereby established the Aspen :Recreation Center Advisory Committee (the "ARC Advisory
Committee") as hereinafter set forth.
Section 2. Composition: Term: Oualifications of Members. The ARC Advisory
Committee shall be constituted as follows:
(a) The ARC Advisory Committee shall consist of seven (7) members.
(i) Four (4) members shall be appointed by friends for the Aspen Sports and
Recreation Complex ("SP ARC")
(ii) One member shall be appointed by the Aspen Youth Center' Board of
Directors to represent. the interests and concerns of the Aspen Youth
Center facilities at the ARC.
(Iii) One member shall be appointed by the City Council to represent the
interests of the users of the s'VYimming facilities at the ARC
(iv) One member shall be appointed by the City Council to represent the
general public interests and concerns relative to the entire ARC facilities,
including the ice skating rink, swimming facilities, youth center
~
AUG-05-03 13:53 FROM:HOLLANDHART
1D:9709259415
PAGE
5/14
Ad':isil":"onerations within the ARC, climbing wall and other recreational
amenities within the ARC and immediate surrounding areas, concession
facilities, and all common areas of the ARC.
(b) All members of the ARC Advisory Committee shall be appointed for a period of
two (2) years, provided that with respect to the four membeJS initially appointed
by SP ARC, 2 members shall serve 1 year terms and 2 members shall serve 2 year
terms, as designated by SP ARC, in order to stagger such terms. Thereafter, all
SPARC - appointed members shall serve 2-year termS. Members appointed by
SPARC shall serve at the pleasure of the SPARC Board of Directors. The member
appointed by the Youth Center shall serve at the pleasure of the Youth Center
Board of Directors. The two members appointed by the City Council shall serve at
\
the pleasure of the City Council. There shall be no restraint on the number of
terms that members may serve on the ARC Advisory Committee.
(c) All members of the ARC Advisory Committee, at the time of their appointment,
shall be residents of Pitkin County for a period of no less than one (1) year. At
least two (2) members appointed by the SPARC Board of Directors shall be
residents of the City of Aspen at the time of their appointment and during their -
term as members of the ARC Advisory Committee. Members shall continue to be
residents of Pitkin County during their term as members of the ARC Advisory
Committee. Residence for purposes of this section shall mean ha"ing a principal
residence in the City of Aspen or Pitkin County, as appropriate, with only
occasional absences from the City of Aspen or Pitkin County not exceeding 3
months in any calendar year.
A
""
Vie
MEMORANDUM
TO:
Mayor and Council
FROM:
Gram Slaton, Wheeler Executive Director
THRU:
ACM Randy Ready; Wheeler Board of Directors
DATE OF MEMO:
12 September 2007
MEETING DATE:
24 September 2007
RE:
Purchase of Selador LED Cyc Lights
SUMMARY: Contract approval is sought for the purchase of 5 Selador X7xtra- 62 to replace
the existing Altman cyclorama lights, as per the approved Asset Management Plan. Staff and
Board recommend approval of the request.
PREVIOUS COUNCIL ACTION: None.
BACKGROUND: The Wheeler Opera House has used the Altman Cyclorama Lights since their
purchase in 1984 as part of the original equipment for the restored Wheeler. . The cost was
approximately $4,000 at that time. Technological advances over the past quarter century have
made these lights wasteful and obsolete, and current industry technical standards require
replacement of the cyc lights with state-of-the-art LED technology.
DISCUSSION: Theatre technology is ever advancing, and the latest lighting technological
advances have been in the area of Light Emitting Diodes (LEDs). While the Altmans are quality
units, after more than twenty years they are requiring constant maintenance and regularly run
through our annual supply of lOOO-watt lamps. These units use a total of 36 lOOO-watt
incandescent lamps that must each be changed 2 - 3 times per year. Additionally, they use gels
that burn out frequently and must be changed 5 - 6 times per year. Both of these processes take
a great deal of staff time, money and are very inefficient environmentally. With the Selador
units, the lamps generally last 12 years and because the colors are controlled through computer
programming, there are no gels to replace ever.
Wheeler staff has spent much of the last year fully investigating all of the leading contenders in
the world of lighting technology, and after exhaustive research has concluded that there are two
choices for replacement of the cyc lights. The Color Kinetics Colorblaze are very popular in the
industry, however they are only I-watt LEDs and would require twice as many units to evenly
provide light. The Selador X7xtras are newer and slightly more expensive, but utilize 3-watt
LEDs as well as dedicated Amber color and Congo color LEDs which are not properly produced
with other LED cyc light units. The Selador units will better live up to the high standards that the
Wheeler, its user groups, and visiting artists expect of our venue.
FINANCIAL IMPLICATIONS: $36,473, inclusive of transportation and set-up. $20,000 has
been budgeted in the 2007 AMP under Lighting Equipment, and the remaining $25,600 can be
provided from the balance left on the Light Board Replacement line item, also in the 2007 AMP.
ENVIRONMENTAL IMPLICATIONS: Altman Cyclorama Lights require 36,000 watts of
power at full capacity. The Selador X7xtras use approximately 3,500 watts. The acquisition of
these units will substantially reduce our energy usage and further our commitment to the Canary
Initiative.
RECOMMENDATION: Staff and Board recommend approval of the request.
ALTERNATIVES: The Color Kinetics Colorblaze 72s could be purchased for approximately
$30,000; however, the brightness of light they produce and the extra units that would be required,
is not seen as being in keeping with the Wheeler's high standards and performance reputation.
PROPOSED MOTION: Council moves to approve Resolution #1:tto contract with Audio
Analysts, for the purposes of purchasing a Soundcraft Vi6 for the Wheeler Opera House.
CITY MANAGER COMMENTS: ~,,~~.~Sl ~..p
RESOLUTION # 1--1--'
(Series of 2007)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND BARBAZON LIGHT OF THE ROCKIES, FOR
THE PURCHASE OF A LED CYC LIGHTS PACKAGE FOR THE WHEELER
OPERA HOUSE AND AUTHORIZING THE CITY MANAGER TO EXECUTE
SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and Barbizon Light of the Rockies, a copy
of which contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract
between the City of Aspen, Colorado, and Barbizon Light of the Rockies,
regarding purchase of a LED Cyc Lights Package, a copy of which is annexed
hereto and incorporated herein, and does hereby authorize the City Manager of the
City of Aspen to execute said contract on behalf of the City of Aspen.
Dated:
Michael C. Ireland, Mayor
I, Kathryn S. Koch, 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 ~ ~ 2.1{ 7tti=t
I
Kathryn S. Koch, City Clerk
j -
SUPPLY PROCUREMENT AGREEMENT
;<Hf!;..
THIS AGREEMENT, made and entered into, this 1Q!!r day of Seotember 2007
between the City of Aspen, Colorado, herein after referred to as the "City" and
Barbizon Liaht of the Rockies hereinafter referred to as the "Vendor".
WITNESSETH, that whereas the City wishes to purchase a LED Cvc Lil!hts
Packal!c hereinafter called the UNIT(S) being more fully described and attached
herewith as 'Exhibit A', in accordance with the terms and conditions outlined in
the Contract Documents and any associated Specifications, and Vendor wishes
to sell said UNIT to the City as specified in its Bid.
NOW, THEREFORE, the City and the Vendor, for the considerations
hereinafter set forth agree as follows:
Purchase. Vendor agrees to sell and City agrees to purchase the UNIT(S) as
described in the Contract Document and more specifically in Vendor's Bid for
the sum of Thirtv-six thousand four hundred seventy-three Dollars ($36.473.00\'
1. Delivery. (FOB 320 E Hvman Ave, ASPEN, CO)
2. 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.
3. Warranties. (Per manufacturer's warrantv).
4. Successors and Assians. 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.
5. 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.
6. 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.
7. Aareement 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.
8. 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.
9. 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.
10. Certification Reaardina Debarment. Suspension. Ineliaibility. and
Voluntarv 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.
11. Warranties Aaainst Continaent Fees. Gratuities. Kickbacks and Conflicts
of Interest. 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.
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.
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.
In addition to other remedies it may have for breach of the prohibitions
against contingent tees, 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.
12. Termination for Default or for Convenience of Citv. 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.
13. Fund Availability. Financial obligations of the City payable after the
current fiscal year are contingent upon funds for that purpose being
appropriated, budgeted and otherwise made available. If this
Agreement contemplates the City utilizing state or federal funds to
meet its obligations herein, this Agreement shall be contingent upon
the availability of those funds for payment pursuant to the terms of this
Agreement.
14. Citv Council ApDroval. If this Agreement requires the City to pay an
amount of money in excess of $25,000.00 it shall not be deemed valid
until it has been approved by the City Council of the City of Aspen.
15. 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.
16.lntearation 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.
17. 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.
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:
City Manager
ATTEST:
City Clerk
By: jllC/1.t... l-o l.\!)G...l't~'1
~A-~~4-. ~ W?~ ~/J.,J
Title 0 p UCr'/ IoNS
I
Line
I.
].0
2.0
3.0
4.0
EXHIBIT A
Qty
Cat. No. Description
SELADOR LED FIXTURES
X7xtra - 62 X7 six-foot fixture 3W LED"S
LV 40 400 Vertical Spread--I' length (11.33 ")
HT02 Trunnions/Floor Stands, set of two
PCEDOI PowerCon-to-Edison Power Input Cable
TOTAL:
ESTIMATED FREIGHT
5
25
5
5
Unit Extended
Sub Total: $36,090.00
$ 383.00
$36,473.00
MEMORANDUM
'lId
TO: Mayor and Council
FROM: Jannette Murison
THRU: Lee Cassin
Randy Ready
DATE OF MEMO: September 14,2007
MEETING DATE: September 24,2007
RE: Contract approval for a Construction Mitigation and Air Quality (CMAQ)
Improvement grant
SUMMARY: The Environmental Health Department is requesting approval of the CMAQ grant
contract. The grant was previously approved by Council during the March 2007 supplemental
approval process, and will be used to retrofit the City of Aspen's six non-hybrid in-town RFTA
buses with emission control equipment.
Please see table in Financial Implication Section for project cost breakdown.
The Environmental Health Department is recommending City Council approval of the CMAQ contract
for $36,845, which includes the grant of $30,504 from CDOT and the City's cash match of $6,341.
PREVIOUS COUNCIL ACTION: City Council approved this request in March 2007. At that
time Council also directed staff to spend an extra $5,578 (with RFT A contributing an equal
amount) to retrofit the remaining two buses in the city fleet, along with a $4,800 contingency.
(These amounts will be included in the contract signed with the retrofit vendor.)
BACKGROUND:
In the 1980' s, the City of Aspen was designated by EP A as a non-attainment area for PM I 0
(particulate pollution sized 10 microns or less). Attachment 1 includes a picture of Aspen during
this time. Since then the City adopted several measures, including expanding the second-largest
mass transit system in Colorado, paid parking, an anti-idling ordinance, an extensive
bicycle/pedestrian trail system, a ban on new wood burning fireplaces and requiring emission
controls for new char grillers. These measures helped the City of Aspen become a maintenance
area on July 14, 2003.
The City of Aspen is eligible for CMAQ funding every two years from the Colorado Department
of Transportation (CDOT) based on Aspen's EPA air quality designation as a PM 10 maintenance
1
area. Part of the allotted funding was approved by CDOT for a diesel emissions retrofit project
for Aspen's in-town bus fleet. The buses will have Diesel Particulate Filters (DPF) installed.
Diesel Particulate Filters are devices that collect particulate matter in the exhaust stream. The
combination of these filters and Ultra Low Sulfur Diesel fuel can reduce emissions of particulate
matter, hydrocarbons, and carbon monoxide by 60 to 90 percent. By cleaning up all six of
Aspen's old/non-hybrid buses, the City of Aspen will have one of the cleanest bus fleets in
Colorado, further the protection of the community's health, and set an example for private diesel
fleet owners.
DISCUSSION: The City of Aspen's air quality is significantly cleaner than it was twenty years
ago. However, the community continues to be challenged in maintaining and meeting future air
quality standards given the traffic and construction projects that emit tons of pollution in our air
each year. As seen in the picture included in Attachment 1, the community has a growing
number of diesel vehicles coming in and out of town. Given that Aspen is located in a tight
mountain valley, where inversions are a natural occurrence; our community must always be
proactive and take action to prevent the degradation of our air quality.
Aspen has a fit and active population; however, with continued diesel emissions the community
becomes more at risk of increased illnesses related to diesel emissions. Diesel emissions are
associated with increased risk of cancer and other health effects. Currently in Pitkin County,
where the City of Aspen resides, there are approximately 1,300-1,400 - asthma cases (children
and adults; taken from 2006 draft American Lung Association survey) and 4.6 hospitalizations
per 10,000 per year related to asthma (taken from Colorado Asthma Coalition 2000-2003 report).
Cleaner buses will help protect this sensitive population and any visitors who have asthma.
The main goals ofthis grant project are to reduce emissions from City of Aspen buses and
protect pedestrian health. In addition, staff sees this project as part of a wide reaching clean
diesel program. Having the buses retrofitted with DPFs will serve as a demonstration project of
proven emission control technology to private diesel fleet owners.
Staff s long-range plan for diesel emissions reductions in the private sector will require action
from many groups in the community; the City of Aspen should take the first step. From grant
projects like the city bus retrofit, private diesel fleet owners will see the benefits to retrofitting
their vehicles with emission control technology. They will see the reduction of visible emissions;
understand the low maintenance costs, and have the community's appreciation of cleaner
vehicles.
FINANCIAL IMPLICATIONS: The CMAQ contract does not reflect the total cost of this
project. The contract we are asking Council to approve is only the grant amount from CDOT
($30,504) and the City of Aspen cash match ($6341).
2
This is a breakdown of the total Project Cost approved in by Council in March, for informational
purposes.
4 Buses 2 Buses 10% cushion TOTAL
City of Asoen $6341 $5578 $4800 $16,719
CMAO l!rant $30504 $30504
RFTA $5578 $5578
Proiect total $52,801
ENVIRONMENTAL IMPLICATIONS: The environmental benefit of retrofitting the buses
with DPFs is decreased pollution from the Aspen's in town bus fleet. It will provide protection to
Aspen's sensitive population by decreasing emissions that trigger asthma attacks, especially in
children.
This project will provide an inexpensive means to improve the City's bus fleet emissions,
support Council's goal in using the cleanest technology, and enhance community support of
Aspen's mass transit system. In addition, by having these reductions, the health of bus riders,
nearby residents, bicyclists, and pedestrians will improve.
This project does not have a negative impact to the environment or the community.
RECOMMENDATION: The Environmental Health Department is recommending City
Council approve the CMAQ grant contract for $36,845.
AL TERNA TIVES: Council already committed to this project in approving the supplemental,
so it is not feasible to pursue another alternative.
PROPOSED MOTION: "I move to approve the CMAQ grant contract in the amount of
$36,845 for installing diesel particulate filter retrofits on six in-town non-hybrid RFT A buses..."
~~
3
I
Attachment I: City of Aspen Air Quality Pictures
,
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lei
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1985 Bad Air Day in the City
r
4
RESOLUTION NO. ~
(Series of 2007)
A RESOLUTION OF THE CITY OF ASPEN, COLORADO, APPROVING A
CONTRACT FOR GRANT FUNDING BETWEEN THE CITY OF ASPEN,
COLORADO AND THE COLORADO DEPARTMENT OF PUBLIC HEALTH AND
ENVIRONMENT, AND AUTHORIZING THE CITY MANAGER OR MAYOR TO
EXECUTE SAID DOCUMENT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been received by the City of Aspen a Contract between the
City of Aspen and the Colorado Department of Transportation, a copy of which Contract
is annexed hereto and made a part thereof.
NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section One
That the City Council of the City of Aspen hereby approves a Contract between
the City of Aspen, Colorado and the Colorado Department of Transportation, a copy of
which Contract is annexed hereto, and does hereby authorize the City Manager or Mayor
of the City of Aspen to execute said Contract on behalf of the City of Aspen in
substantially the form as appended hereto.
RESOLVED, APPROVED AND ADOPTED this _ day of
, by the City Council for the City of Aspen, Colorado.
Michael C. Ireland, Mayor
I, Kathryn S. Koch, 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 ,2007.
Kathryn S. Koch, City Clerk
STATE OF COLORADO
DEPARTMENT OF TRANSPORTATION
Contracts and Market Analysis Branch
David A. Wells
Contracting Officer
4201 East Arkansas Avenue, 4111 Floor West
Denver, Colorado 80222
Telephone: (303) 757-9480
Fax: (303) 757.9867
~
DIIP~"',_,A11ON
July 30, 2007
Lynn Rumbaugh
City of Aspen
Transportation Programs Manager
130 South Galena
Aspen, CO 81611
Subject: Diesel Retrofit Project
Contract Routing # 08 HA3 00007
Dear Lynn,
Enclosed please find three executory copies of the above referenced contract between the City of Aspen
and the Colorado Department of Transportation.
PLEASE MAKE SURE EACH DOCUMENT IS SIGNED BY THE APPROPRIATE
INDIVIDUAL HAVING THE AUTHORITY TO EXECUTE SUCH AGREEMENTS ON
BEHALF OF THE CITY. ADDITIONALLY, PLEASE HAVE THAT PERSON'S SIGNATURE
ATTESTED BY AN INDIVIDUAL AUTHORIZED TO DO SO, AND HAVE THE CITY CLERK
SEAL AFFIXED TO EACH DOCUMENT. (The purpose ofthe attestation is to certifY that the
individual signing the agreement has the authority to sign the agreement on behalf of the Local Agency.)
Retum all three original copies to my attention. In addition, please attach a copy of the ordinance or
resolution passed by the City's goveming board approving the contract.
Please do not date the first page ofthe contract.
Sinl!le Audit Act Amendment (Section 28 of Contract, pg. 16)
All state and local governments and non-profit organization Sub-Grantees receiving more than $500,000 from all
funding sources, that are defined as federal financial assistance for Single Audit Act Amendment purposes, shall
comply with the audit requirements of OMB Circular A-133 (Audits of States, Local Governments and Non-
Profit Organizations). If your organization is required to have an A-l33 audit, please enclose a copy of the 2006
audit with the three signed executory contracts. If your organization is exempt from the audit requirement, i.e. it
receives less than $500,000.00 in federal funds from all sources annually, please provide me with a letter from the
appropriate representative of your organization indicating that your organization is exempt from such
requirement.
Please call me at (303) 757-9480 if you have any questions or if! can be of further assistance.
BeS\~
DavU4fs
Contracting Officer
,.
(FMLA WRK)
PROJECT AQC M045-006, (16290)
REGION 3 (daw)
Rev 09/03
08 HA3 00007
271000582
CONTRACT
THIS CONTRACT made this _ day of
2007, by and between the State of
Colorado for the use and benefit of the Colorado Department of Transportation hereinafterreferred
to as the State, and the CITY OF ASPEN, 130 South Galena, Aspen, Colorado, 81611,
CDOT Vendor #: 2000009, hereinafter referred to as the "Contractor" or the "Local Agency."
RECITALS
I. Authority exists in the law and funds have been budgeted, appropriated and otherwise made
available and a sufficient uncommitted balance thereof remains available for payment of project and
Local Agency costs in Fund Number 400, Function 3404, GL Acct. 4231200011,
WBS Element 16290.10.50. Contract Encumbrance Amount: $36,845.00.
2. Required approval, clearance and coordination have been accomplished from and with appropriate
agencies.
3. Pursuant to Title I, Subtitle A, Section 1108 ofthe "Transportation Equity Act for the 21 st Century"
of 1998 (TEA-21) and/or the "Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users" (SAFETEA-LU) of 2005 and to applicable provisions of Title 23 of the United
States Code and implementing regulations at Title 23 of the Code of Federal Regulations, as may be
amended, (collectively referred to hereinafter as the "Federal Provisions"), certain federal funds have
been and will in the future be allocated for transportation projects requested by Local Agencies and
eligible under the Surface Transportation Improvement Program that has been proposed by the State
and approved by the Federal Highway Administration ("FHW A''), hereinafter referred to as the
"Program."
4. Pursuant to 9 43-1-223, C.R.S. and to applicable portions of the Federal Provisions, the State is
responsible for the general administration and supervision of performance of projects in the Program,
including the administration of federal funds for a Program project performed by a Local Agency under
a contract with the State.
5. The Local Agency has requested that a certain local transportation project be funded as part of the
Program, and by the date of execution of this contract, the Local Agency and/or the State has completed
and submitted a preliminary version ofCDOT form #463 describing the general nature ofthe Work.
The Local Agency understands that, before the Work begins, form #463 may be revised as a result of
design changes made by CDOT, in coordination with the Local Agency, in its internal review process.
The Local Agency desires to perform the Work described in form #463, as it may be revised.
Page I of 17
6. Federal-aid funds have been made available for project AQC M045-006 (16290), which shall
consist ofthe Diesel Retrofit to include the installation of emissions control equipment on up to six (6)
"Neoplan" AN 435L Transit Buses, referred to as the "Project" or the "Work." Such Work will be
performed in City of Aspen, Colorado, specifically described in Exhibit A.
7. The matching ratio for this federal aid project is 82.79% federal-aid funds to 17.21 % Local Agency
funds, it being understood that such ratio applies only to such costs as are eligible for federal
participation, it being further understood that all non-participating costs shall be borne by the Local
Agency at 100%.
8. The Local Agency desires to comply with the Federal Provisions and other applicable requirements,
including the State's general administration and supervision of the Project through this contract, in
order to obtain federal funds.
9. The Local Agency has estimated the total cost of the Work and is prepared to provide its match share
of the cost, as evidenced by an appropriate ordinance/resolution or other authority letter which expressly
authorizes the Local Agency the authority to enter into this contract and to expend its match share of the
Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit B.
10. This contract is executed under the authorityofSS 29-1-203, 43-1-110; 43-1-116, 43-2-101(4)(c)
and 43-2-144, C.R.S. and Exhibit B.
II. The Local Agency is adequately staffed and suitably equipped to undertake and satisfactorily
complete some or all of the Work.
12. The Local Agency can more advantageously perform the Work.
THE PARTIES NOW AGREE THAT:
Section 1. Scope of Work
The Project or the Work under this contract shall consist of Diesel Retrofit to include the
installation of emissions control equipment on up to six (6) Neoplan AN 435L transit buses, in City of
Aspen, Colorado, as more specifically described in Exhibit A.
Section 2. Order of Precedence
In the event of conflicts or inconsistencies between this contract and its exhibits, such conflicts
or inconsistencies shall be resolved by reference to the documents in the following order of priority:
I. Special Provisions contained in section 29 of this contract
2. This contract
3. Exhibit A (Scope of Work)
4. Exhibit C (Funding Provisions)
5. Exhibit D (Certification for Federal-Aid Contracts)
Page 2 of 17
6. Exhibit E (DBE Requirements)
7. Exhibit F (Contract Modification Tools)
8. Other Exhibits in descending order of their attachment.
Section 3. Term
This contract shall be effective upon approval of the State Controller or designee, or on the
date made, whichever is later. The term of this contract shall continue through the completion and
final acceptance of the Project by the State, FHW A and the Local Agency.
Section 4. Project Funding Provisions
The Local Agency has estimated the total cost of the Work and is prepared to provide its match
share of the cost, as evidenced by an appropriate ordinance/resolution or other authority letter which
expressly authorizes the Local Agency the authority to enter into this contract and to expend its match
share of the Work. A copy of such ordinance/resolution or authority letter is attached hereto as Exhibit B.
The funding provisions for the Project are attached hereto as Exhibit C. The Local Agency
shall provide its share of the funds for the Project as outlined in Exhibit C.
Section 5. Project Payment Provisions
A. The State will reimburse the Local Agency for the federal-aid share of the project charges
after the State's review and approval of such charges, subject to the terms and conditions of this
contract. However, any charges incurred by the Local Agency prior to the date of FHW A
authorization for the Project and prior to the date this contract is executed by the State Controller or
his designee will not be reimbursed absent specific FHW A and State Controller approval thereof.
B. The State will reimburse the Local Agency's reasonable, allocable, allowable costs of
performance of the Work, not exceeding the maximum total amount described in Exhibit C. The
applicable principles described in 49 C.F.R. 18 Subpart C and 49 C.F.R. 18.22 shall govern the
allowability and allocability of costs under this contract. The Local Agency shall comply with all
such principles. To be eligible for reimbursement, costs by the Local Agency shall be:
I. In accordance with the provisions of Exhibit C and with the terms and conditions of
this contract;
2. Necessary for the accomplishment ofthe Work;
3. reasonable in the amount for the goods and services provided;
4. actual net cost to the Local Agency (i.e. the price paid minus any refunds, rebates, or
other items of value received by the Local Agency that have the effect of reducing the
cost actually incurred);
5. Incurred for Work performed after the effective date of this contract;
6. Satisfactorily documented.
Page 3 of 17
C. The Local Agency shall establish and maintain a proper accounting system in accordance
with generally accepted accounting standards (a separate set of accounts, or as a separate and integral
part of its current accounting scheme) to assure that project funds are expended and costs accounted
for in a manner consistent with this contract and project objectives.
I. All allowable costs charged to the project, including any approved services
contributed by the Local Agency or others, shall be supported by properly executed
payrolls, time records, invoices, contracts or vouchers evidencing in detail the nature
of the charges.
2. Any check or order drawn up by the Local Agency, including any item which is or
will be chargeable against the project account shall be drawn up only in accordance
with a properly signed voucher then on file in the office of the Local Agency, which
will detail the purpose for which said check or order is drawn. All checks, payrolls,
invoices, contracts, vouchers, orders or other accounting documents shall be clearly
identified, readily accessible, and to the extent feasible, kept separate and apart from
all other such documents.
D. Upon execution of this contract, the State is authorized, in its discretion, to perform any
necessary administrative support services pursuant to this contract. These services may be performed
prior to and in preparation for any conditions or requirements of this contract, including prior FHW A
approval of Work. The Local Agency understands and agrees that the State may perform such
services, and that payments for such services shall be at no cost to the State but shall be as provided
for in Exhibit C. At the request of the Local Agency, the State shall also provide other assistance
pursuant to this contract as may be agreed in writing. In the event that federal-aid project funds
remain available for payment, the Local Agency understands and agrees the costs of any such
services and assistance shall be paid to the State from project funds at the applicable rate. However,
in the event that such funding is not made available or is withdrawn for this contract, or if the Local
Agency terminates this contract prior to project approval or completion for any reason, then all actual
incurred costs of such services and assistance provided by the State shall be the sole expense of the
Local Agency.
E. If the Local Agency is to be billed for CDOT incurred costs, the billing procedure shall be as
follows:
I. Upon receipt of each bill from the State, the Local Agency will remit to the State the
amount billed no later than 60 days after receipt of each bill. Should the Local
Agency fail to pay moneys due the State within 60 days of demand or within such
other period as may be agreed between the parties hereto, the Local Agency agrees
that, at the request of the State, the State Treasurer may withhold an equal amount
from future apportionment due the Local Agency frorn the Highway Users Tax Fund
and to pay such funds directly to the State. Interim funds, until the State is
reimbursed, shall be payable from the State Highway Supplementary Fund (400).
2. If the Local Agency fails to make timely payment to the State as required by this
section (within 60 days after the date of each bill), the Local Agency shall pay
interest to the State at a rate of one percent per month on the amount of the payment
Page 4 of 17
which was not made in a timely manner, until the billing is paid in full. The interest
shall accrue for the period from the required payment date to the date on which
payment is made.
F. The Local Agency will prepare and submit to the State, no more than monthly, charges for
costs incurred relative to the project. The Local Agency's invoices shall include a description of the
amounts of services performed, the dates of performance and the amounts and description of
reimbursable expenses. The invoices will be prepared in accordance with the State's standard
policies, procedures and standardized billing format to be supplied by the State.
G. To be eligible for payment, billings must be received within 60 days after the period for
which payment is being requested and final billings on this contract must be received by the State
within 60 days after the end of the contract term.
I. Payments pursuant to this contract shall be made as earned, in whole or in part, from
available funds, encumbered for the purchase of the described services. The liability
of the State, at any time, for such payments shall be limited to the amount remaining
of such encumbered funds.
2. In the event this contract is terminated, final payment to the Local Agency may be
withheld at the discretion of the State until completion of final audit.
3. Incorrect payments to the Local Agency due to omission, error, fraud or defalcation
shall be recovered from the Local Agency by deduction from subsequent payment
under this contract or other contracts between the State and Local Agency, or by the
State as a debt due to the State.
4. Any costs incurred by the Local Agency that are not allowable under 49 C.F.R. 18
shall be reimbursed by the Local Agency, or offset against current obligations due by
the State to the Local Agency, at the State's election.
Section 6. State and Local Agency Commitments
The Local Agency Contract Administration Checklist in Exhibit G describes the Work to be
performed and assigns responsibility of that Work to either the Local Agency or the State. The
"Responsible Party" referred to in this contract means the Responsible Party as identified in the
Local Agency Contract Administration Checklist in Exhibit G.
A. Design [if applicable]
I. If the Work includes preliminary design or final design (the "Construction Plans"), or
design work sheets, or special provisions and estimates (collectively referred to as the "Plans"), the
responsible party shall comply with the following requirements, as applicable:
a. Perform or provide the Plans, to the extent required by the nature of the
Work.
Page 5 of 17
b. Prepare final design (Construction Plans) in accord with the requirements of
the latest edition of the American Association of State Highway
Transportation Officials (AASHTO) manual or other standard, such as the
Uniform Building Code, as approved by CDOT.
c. Prepare special provisions and estimates in accord with the State's Roadway
and Bridge Design Manuals and Standard Specifications for Road and Bridge
Construction or Local Agency specifications if approved by CDOT.
d. Include details of any required detours in the Plans, in order to prevent any
interference ofthe construction work and to protect the traveling public.
e. Stamp the Plans produced by a Colorado Registered Professional Engineer.
f. Provide final assembly of Plans and contract documents.
g. Be responsible for the Plans being accurate and complete.
h. Make no further changes in the Plans following the award of the construction
contract except by agreement in writing between the parties. The Plans shall
be considered final when approved and accepted by the parties hereto, and
when final they shall be deemed incorporated herein.
2. If the Local Agency is the responsible party:
a. The local agency shall comply with the requirements ofthe Americans
With Disabilities Act (ADA), and applicable federal regulations and
standards as contained in the document "ADA Accessibility Requirements
in CDOT Transportation Projects".
b. It shall afford the State ample opportunity to review the Plans and make
any changes in the Plans that are directed by the State to comply with
FHW A requirements.
c. It may enter into a contract with a consultant to do all or any portion of the
Plans and/or of construction administration. Provided, however, that if
federal-aid funds are involved in the cost of such work to be done by a
consultant, that consultant contract (and the performance/provision of the
Plans under the contract) must comply with all applicable requirements of
23 CFR Part In and with any procedures implementing those
requirements as provided by the State, including those in Exhibit H
attached hereto. rfthe Local Agency does enter into a contract with a
consultant for the Work:
(1) It shall submit a certification that procurement of any design
consultant contract complied with the requirements of23 CFR In.5(d) prior
to entering into contract. The State shall either approve or deny such
procurement. If denied, the Local Agency may not enter into the contract.
(2) It shall ensure that all changes in the consultant contract have prior
approval by the State and FHW A. Such changes in the contract shall be by
written supplement agreement. As soon as the contract with the consultant
has been awarded by the Local Agency, one copy of the executed contract shall be
submitted to the State. Any amendments to such contract shall also be submitted.
Page 6 of17
(3) It shall require that all consultant billings under that contract shall
comply with the State's standardized billing format. Examples of the billing
formats are available from the CDOT Agreements Office.
(4) It (or its consultant) shall use the CDOT procedures described in
Exhibit H to administer that design consultant subcontract, to comply with 23
CFR I 72.5(b) and (d).
(5) It may expedite any CDOT approval of its procurement process and/or
consultant contract by submitting a letter to CDOT from the certirying Local
Agency's attorney/authorized representative certirying compliance with
Exhibit H and 23 CFR I 72.5(b land (d).
(6) It shall ensure that its consultant contract complies with the
requirements of 49 CFR 18.36(i) and contains the following language
verbatim:
(a) "The design work under this contract shall be compatible with
the requirements of the contract between the Local Agency and the
State (which is incorporated herein by this reference) for the
design/construction of the project. The State is an intended third
party beneficiary of this contract for that purpose."
(b) "Upon advertisement of the project work for construction, the
consultant shall make available services as requested by the State to
assist the State in the evaluation of construction and the resolution of
construction problems that may arise during the construction of the
project. "
(c) "The consultant shall review the construction contractor's
shop drawings for conformance with the contract documents and
compliance with the provisions of the State's publication, Standard
SDecifications for Road and Bridge Construction, in connection with
this work."
d. The State, in its discretion, will review construction plans, special provisions
and estimates and will cause the Local Agency to make changes therein that
the State determines are necessary to assure compliance with State and
FHW A requirements.
B. Construction [if applicable]
1. If the Work includes construction, the responsible party shall perform the
construction in accordance with the approved design plans and/or administer the
construction all in accord with the Local Agency Contract Administration Checklist.
Such administration shall include project inspection and testing; approving sources of
materials; performing required plant and shop inspections; documentation of contract
payments, testing and inspection activities; preparing and approving pay estimates;
preparing, approving and securing the funding for contract modification orders and
minor contract revisions; processing contractor claims; construction supervision; and
Page 7 of 17
meeting the Quality Control requirements of the FHW A1CDOT Stewardship
Agreement, as described in the Local Agency Contract Administration Checklist.
2. The State shall have the authority to suspend the Work, wholly or in part, by giving
written notice thereofto the Local Agency, due to the failure of the Local Agency or
its contractor to correct project conditions which are unsafe for workers or for such
periods as the State may deem necessary due to unsuitable weather, or for conditions
considered unsuitable for the prosecution of the Work, or for any other condition or
reason deemed by the State to be in the public interest.
3. If the Local Agency is the responsible party:
a. It shall appoint a qualified professional engineer, licensed in the State of
Colorado, as the Local Agency Project Engineer (LAPE), to perform that
administration. The LAPE shall administer the project in accordance with
this contract, the requirements of the construction contract and applicable
State procedures.
b. Ifbids are to be let for the construction of the project, it shall advertise the
call for bids upon approval by the State and award the construction
contract(s) to the low responsible bidder(s) upon approval by the State.
(1) In advertising and awarding the bid for the construction of a federal-
aid project, the Local Agency shall comply with applicable
requirements of 23 USC S 112 and 23 CFR Parts 633 and 635 and
C.R.S. S 24-92-101 et seq. Those requirements include, without
limitation, that the Local Agency/contractor shall incorporate Form
1273 (Exhibit I) in its entirety verbatim into any subcontract(s) for
those services as terms and conditions therefore, as required by 23
CFR 633.I02(e).
(2) The Local Agency has the option to accept or reject the proposal of
the apparent low bidder for work on which competitive bids have
been received. The Local Agency must declare the acceptance or
rejection within 3 working days after said bids are publicly opened.
(3) By indicating its concurrence in such award, the Local Agency, acting
by or through its duly authorized representatives, agrees to provide
additional funds, subject to their availability and appropriation for
that purpose, if required to complete the Work under this project if no
additional federal-aid funds will be made available for the project.
This paragraph also applies to projects advertised and awarded by the
State.
c. If all or part of the construction work is to be accomplished by Local Agency
personnel (i.e. by force account), rather than by a competitive bidding process,
the Local Agency will ensure that all such force account work is accomplished in
accordance with the pertinent State specifications and requirements with 23 CFR
635, Subpart B, Force Account Construction.
Page 8 of 17
(I) Such work will normally be based upon estimated quantities and firm
unit prices agreed to between the Local Agency, the State and FHW A
in advance of the Work, as provided for in 23 CFR 635.204(c). Such
agreed unit prices shall constitute a commitment as to the value ofthe
Work to be performed.
(2) An alternative to the above is that the Local Agency may agree to
participate in the Work based on actual costs of labor, equipment
rental, materials supplies and supervision necessary to complete the
Work. Where actual costs are used, eligibility of cost items shall be
evaluated for compliance with 48 CFR Part 31.
(3) Rental rates for publicly owned equipment will be determined in
accordance with the State's Standard Specifications for Road and
Bridge Construction S 109.04.
(4) All force account work shall have prior approval of the State and/or
FHW A and shall not be initiated until the State has issued a written
notice to proceed.
D. State's obligations
1. The State will perform a final project inspection prior to project acceptance as a
Quality Control/Assurance activity. When all Work has been satisfactorily
completed, the State will sign the FHWA Form 1212.
2. Notwithstanding any consents or approvals given by the State for the Plans, the State
will not be liable or responsible in any manner for the structural design, details or
construction of any major structures that are designed by or are the responsibility of
the Local Agency as identified in the Local Agency Contract Administration
Checklist, Exhibit G, within the Work of this contract.
Section 7. ROW Acquisition and Relocation
If Right of Way is applicable, prior to this project being advertised for bids, the Responsible
Party will certifY in writing to the State that all right of way has been acquired in accordance with the
applicable State and federal regulations, or that no additional right of way is required.
Any acquisition/relocation activities must comply with all federal and state statutes,
regulations, CDOT policies and procedures, 49 CFR Part 24, the govemment wide Uniform Act
regulation, the FHW A Project Development Guide and CDOT's Right of Way Operations Manual.
Allocation of Responsibilities can be as follows:
· Federal participation in right of way acquisition (3111 charges), relocation (3109
charges) activities, if any, and right of way incidentals (expenses incidental to
acquisition/relocation of right of way - 3114 charges);
Page 9 of 17
· Federal participation in right of way acquisition (3111 charges), relocation (3109
charges) but no participation in incidental expenses (3114 charges); or
· No federal participation in right of way acquisition (3111 charges) and relocation
activities (3109 expenses).
Regardless of the option selected above, the State retains oversight responsibilities. The Local
Agency's and the State's responsibilities for each option is specifically set forth in CDOT's Right of
Way Operation Manual. The manual is located at htto:ffwww.dot.state.co.usfROW Manual!.
Section 8. Utilities
If necessary, the Responsible Party will be responsible for obtaining the proper clearance or
approval from any utility company which may become involved in this Project. Prior to this Project
being advertised for bids, the Responsible Party will certifY in writing to the State that all such
clearances have been obtained.
Section 9. Railroads
In the event the Project involves modification of a railroad company's facilities whereby the
Work is to be accomplished by railroad company forces, the Responsible Party shall make timely
application to the Public Utilities Commission requesting its order providing for the installation of
the proposed improvements and not proceed with that part of the Work without compliance. The
Responsible Party shall also establish contact with the railroad company involved for the purpose of
complying with applicable provisions of 23 CFR 646, subpart B, concerning federal-aid projects
involving railroad facilities, including:
I. Executing an agreement setting out what work is to be accomplished and the
location(s) thereof, and that the costs of the improvement shall be eligible for federal
participation.
2. Obtaining the railroad's detailed estimate of the cost of the Work.
3. Establishing future maintenance responsibilities for the proposed installation.
4. Proscribing future use or dispositions ofthe proposed improvements in the event of
abandonment or elimination of a grade crossing.
5. Establishing future repair and/or replacement responsibilities in the event of
accidental destruction or damage to the installation.
Section 10. Environmental Obligations
The Local Agency shall perform all Work in accordance with the requirements of the current
federal and state environmental regulations including the National Environmental Policy Act of 1969
(NEP A) as applicable.
Page 10 of 17
Section 11. Maintenance Obligations
The Local Agency will maintain and operate the improvements constructed under this
contract at its own cost and expense during their useful life, in a manner satisfactory to the State and
FHW A. The Local Agency will make proper provisions for such maintenance obligations each year.
Such maintenance and operations shall be conducted in accordance with all applicable statutes,
ordinances and regulations which define the Local Agency's obligations to maintain such
improvements. The State and FHW A will make periodic inspections of the project to verifY that
such improvements are being adequately maintained.
Section 12. Federal Requirements
The Local Agency and/or their contractor shall at all times during the execution of this
contract strictly adhere to, and comply with, all applicable federal and state laws, and their
implementing regulations, as they currently exist and may hereafter be amended. The contractor
shall also require compliance with these statutes and regulations in subgrant agreements permitted
under this contract. A listing of certain federal and state laws that may be applicable are described in
ExhibitJ.
Section 13. Record Keeping
The Local Agency shall maintain a complete file of all records, documents, communications,
and other written materials which pertain to the costs incurred under this contract. The Local
Agency shall maintain such records for a period of three (3) years after the date of termination ofthis
contract or final payment hereunder, whichever is later, or for such further period as may be
necessary to resolve any matters which may be pending. The Local Agency shall make such
materials available for inspection at all reasonable times and shall permit duly authorized agents and
employees of the State and FHW A to inspect the project and to inspect, review and audit the project
records.
Section 14. Termination Provisions
This contract may be terminated as follows:
A. Termination for Convenience. The State may terminate this contract at any time the State
determines that the purposes of the distribution of moneys under the contract would no longer be
served by completion ofthe project. The State shall effect such termination by giving written notice
of termination to the Local Agency and specifying the effective date thereof, at least twenty (20) days
before the effective date of such termination.
B. Termination for Cause. If, through any cause, the Local Agency shall fail to fulfill, in a timely
and proper manner, its obligations under this contract, or ifthe Local Agency shall violate any of the
covenants, agreements, or stipulations of this contract, the State shall thereupon have the right to
terminate this contract for cause by giving written notice to the Local Agency of its intent to
terminate and at least ten (10) days opportunity to cure the default or show cause why termination is
Page II ofl7
otherwise not appropriate. In the event of termination, all finished or unfinished documents, data,
studies, surveys, drawings, maps, models, photographs and reports or other material prepared by the
Local Agency under this contract shall, at the option of the State, become its property, and the Local
Agency shall be entitled to receive just and equitable compensation for any services and supplies
delivered and accepted. The Local Agency shall be obligated to return any payments advanced under
the provisions of this contract.
Notwithstanding the above, the Local Agency shall not be relieved ofliability to the State for any
damages sustained by the State by virtue of any breach ofthe contract by the Local Agency, and the
State may withhold payment to the Local Agency for the purposes of mitigating its damages until
such time as the exact amount of damages due to the State from the Local Agency is determined.
If after such termination it is determined, for any reason, that the Local Agency was not in default
or that the Local Agency's action/inaction was excusable, such termination shall be treated as a
termination for convenience, and the rights and obligations ofthe parties shall be the same as if the
contract had been terminated for convenience, as described herein.
C. Termination Due to Loss of Funding. The parties hereto expressly recognize that the Local
Agency is to be paid, reimbursed, or otherwise compensated with federal and/or State funds which
are available to the State for the purposes of contracting for the Project provided for herein, and
therefore, the Local Agency expressly understands and agrees that all its rights, demands and claims
to compensation arising under this contract are contingent upon availability of such funds to the
State. In the event that such funds or any part thereof are not available to the State, the State may
immediately terminate or amend this contract.
Section 15. Legal Authority
The Local Agency warrants that it possesses the legal authority to enter into this contract and that
it has taken all actions required by its procedures, by-laws, and/or applicable law to exercise that
authority, and to lawfully authorize its undersigned signatory to execute this contract and to bind the
Local Agency to its terms. The person(s) executing this contract on behalf of the Local Agency
warrants that such person(s) has full authorization to execute this contract.
Section 16. Representatives and Notice
The State will provide liaison with the Local Agency through the State's Region Director, Region 3,
222 South Sixth Street, Room 317, Grand Junction, Colorado, 81501-2769. Said Region Director
will also be responsible for coordinating the State's activities under this contract and will also issue a
"Notice to Proceed" to the Local Agency for commencement of the Work. All communications
relating to the day-to-day activities for the work shall be exchanged between representatives of the
State's Transportation Region 3 and the Local Agency. All communication, notices, and
correspondence shall be addressed to the individuals identified below. Either party may from time to
time designate in writing new or substitute representatives.
Page 120fl7
If to State:
Pete Mertes
CDOT Region 3
Resident Engineer
202 Centennial
Glenwood Springs, CO 81601
(970)945-8187
If to the Local Agency:
Lynn Rumbaugh
City of Aspen
Transportation Programs Manager
130 South Galena
Aspen, CO 81611
(970)920-5038
Section 17. Successors
Except as herein otherwise provided, this contract shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
Section 18. Third Party Beneficiaries
It is expressly understood and agreed that the enforcement of the terms and conditions of this
contract and all rights of action relating to such enforcement, shall be strictly reserved to the State
and the Local Agency. Nothing contained in this contract shall give or allow any claim or right of
action whatsoever by any other third person. It is the express intention ofthe State and the Local
Agency that any such person or entity, other than the State or the Local Agency receiving services or
benefits under this contract shall be deemed an incidental beneficiary only.
Section 19. Governmental Immunity
Notwithstanding any other provision ofthis contract to the contrary, no term or condition of
this contract shall be construed or interpreted as a waiver, express or implied, of any of the
immunities, rights, benefits, protection, or other provisions of the Colorado Govenunental Immunity
Act, ~ 24-10-101, et seq., C.R.S., as now or hereafter amended. The parties understand and agree
that liability for claims for injuries to persons or property arising out of negligence of the State of
Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and
limited by the provisions of~ 24-10-101, et seq., C.R.S., as now or hereafter amended and the risk
management statutes, ~~ 24-30-1501, et seq., C.R.S., as now or hereafter amended.
Section 20. Severability
To the extent that this contract may be executed and performance of the obligations of the
parties may be accomplished within the intent of the contract, the terms of this contract are severable,
and should any term or provision hereofbe declared invalid or becorne inoperative for any reason,
such invalidity or failure shall not affect the validity of any other term or provision hereof.
Section 21. Waiver
The waiver of any breach of a term, provision, or requirement of this contract shall not be
construed or deemed as a waiver of any subsequent breach of such term, provision, or requirement,
or of any other term, provision or requirement.
Page 13 of17
Section 22. Entire Understanding
This contract is intended as the complete integration of all understandings between the
parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any
force or effect whatsoever, unless embodied herein by writing. No subsequent novation, renewal,
addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a
writing executed and approved pursuant to the State Fiscal Rules.
Section 23. Survival of Contract Terms
Notwithstanding anything herein to the contrary, the parties understand and agree that all
terms and conditions of this contract and the exhibits and attachments hereto which may require
continued performance, compliance or effect beyond the termination date of the contract shall
survive such termination date and shall be enforceable by the State as provided herein in the event of
such failure to perform or comply by the Local Agency.
Section 24. Modification and Amendment
This contract is subject to such modifications as may be required by changes in federal or
State law, or their implementing regulations. Any such required modification shall automatically be
incorporated into and be part of this contract on the effective date of such change as if fully set forth
herein. Except as provided above, no modification of this contract shall be effective unless agreed to
in writing by both parties in an amendment to this contract that is properly executed and approved in
accordance with applicable law.
Section 25. Funding Letters
The State may allocate more or less funds available on this contract using a Funding Letter
substantially equivalent to Exhibit F and bearing the approval of the State Controller or his designee.
The funding letter shall not be deemed valid until it shall have been approved by the State Controller
or his designee.
Section 26. Disadvantaged Business Enterprise (DBE)
The Local Agency will comply with all requirements of Exhibit E and the Local Agency
Contract Administration Checklist regarding DBE requirements for the Work, except that if the
Local Agency desires to use its own DBE program to implement and administer the DBE provisions
of 49 CFR Part 26 under this contract, it must submit a copy of its program's requirements to the
State for review and approval before the execution of this contract. If the Local Agency uses its
program for this contract, the Local Agency shall be solely responsible to defend that DBE program
and its use of that program against all legal and other challenges or complaints, at its sole cost and
expense. Such responsibility includes, without limitation, determinations concerning DBE eligibility
requirements and certification, adequate legal and factual bases for DBE goals and good faith efforts.
State approval (if provided) of the Local Agency's DBE program does not waive or modifY the sole
responsibility of the Local Agency for its use as described above.
Page 14 of 17
Section 27. Disputes
Except as otherwise provided in this contract, any dispute concerning a question of fact
arising under this contract which is not disposed of by agreement, will be decided by the Chief
Engineer of the Department of Transportation. The decision of the Chief Engineer will be final and
conclusive unless, within 30 calendar days after the date of receipt of a copy of such written decision,
the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the
Executive Director of the Department of Transportation. In connection with any appeal proceeding
under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer
evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency
shall proceed diligently with the performance of the contract in accordance with the Chief Engineer's
decision. The decision of the Executive Director or his duly authorized representative for the
determination of such appeals will be final and conclusive and serve as final agency action. This
dispute clause does not preclude consideration of questions of law in connection with decisions
provided for herein. Nothing in this contract, however, shall be construed as making final the
decision of any administrative official, representative, or board on a question of law.
Section 28. Single Audit Act Amendment
All state and local government and non-profit organization Sub-Grantees receiving more than
$500,000 from all funding sources, that are defined as federal financial assistance for Single Audit Act
Amendment purposes, shall comply with the audit requirements of OMB Circular A-l33 (Audits of
States, Local Governments and Non-Profit Organizations) see also, 49 CFR 18.20 through 18.26. The
Single Audit Act Amendment requirements that apply to Sub-Grantees receiving federal funds are as
follows:
a) If the Sub-Grantee expends less than $500,000 in Federal funds (all federal sources, not just Highway
funds) in its fiscal year then this requirement does not apply.
b) rfthe Sub-Grantee expends more than $500,000 in Federal funds, but only received federal Highway
funds (Catalog of Federal Domestic Assistance, CFDA 20.205) then a program specific audit shall be
performed. This audit will examine the "financial" procedures and processes for this program area.
b) If the Sub-Grantee expends more than $500,000 in Federal funds, and the Federal funds are from
multiple sources (FT A, HUD, NPS, etc.) then the Single Audit Act applies, which is an audit on the entire
organization/entity.
c) Single Audit can only be conducted by an independent CPA, not by an auditor on staff.
d) An audit is an allowable direct or indirect cost.
Page 15 of 17
Section 29.
SPECIAL PROVISIONS
The Special Provisions apply to all contracts except where noted in italics.
1. CONTROLLER'S APPROVAL. CRS 24-30-202 (1). This contract shall not be deemed valid until it has been approved by the
Colorado State Controller or designee.
2. FUND AVAILABILITY. CRS 24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available.
3. INDEMNIFICATION. Contractor shall indemnify, save, and hold harmless the State, its employees and agents, against any and
all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of
any act or omission by Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract.
[Applicable Only to Intergovernmental Contracts] No term or condition of this contract shall be construed or interpreted as a
waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions, of the Colorado Governmental
Immunity Act, CRS 24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.c. 2671 et seq., as applicable, as now or hereafter
amended.
4. INDEPENDENT CONTRACTOR. 4 CCR 801-2. Contractor shall perform its duties hereunder as an independent contractor and
not as an employee. Neither contractor nor any agent or employee of contractor shall be or shall be deemed to be an agent or
employee of the state. Contractor shall pay when due all required employment taxes and income taxes and local head taxes on any
monies paid by the state pursuant to this contract. Contractor acknowledges that contractor and its employees are not entitled to
unemployment insurance benefits unless contractor or a third party provides such coverage and that the state does not pay for or
otherwise provide such coverage. Contractor shall have no authorization, express or implied, to bind the state to any agreement,
liability or understanding, except as expreSSly set forth herein. Contractor shall provide and keep in force workers' compensation (and
provide proof of such insurance when requested by the state) and unemployment compensation insurance in the amounts required by
law and shall be solely responsible for its acts and those of its employees and agents.
5. NON-DISCRIMINATION. Contractor agrees to comply with the letter and the spirit of ail applicable State and federal laws
respecting discrimination and unfair employment practices.
6. CHOICE OF LAW. The laws of the State of Colorado, and rules and regulations issued pursuant thereto, shall be applied in the
interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by
reference, which provides for arbitration by any extra-judicial body or person or which is otherwise in conflict with said laws, rules, and
regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to
negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law, whether by
way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the
remainder of this contract, to the extent that this contract is capable of execution. At all times during the performance of this
contract, Contractor shall strictly adhere to all applicable federal and State laws, rules, and regulations that have been or may
hereafter be established.
7. [Not Applicable to Intergovernmental Contracts] VENDOR OFFSET. CRS 24-30-202 (1) and 24-30-202.4. The State
Controller may withhold payment of certain debts owed to State agencies under the vendor offset intercept system for: (a) unpaid
child support debt or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in Article 21,
Title 39, CRS; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be
paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State or its agencies, as a result of final
agency determination or reduced to judgment, as certified by the State Controller.
8. SOFTWARE PIRACY PROHI8ITION, Governor's Executive Order D 002 00. No State or other publiC funds payable under
this contract shall be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or
applicable licensing restrictions. Contractor hereby certifies that, for the term of this contract and any extensions, Contractor has in
place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Contractor is in
violation of this paragraph, the State may exercise any remedy available at law or equity or under this contract, including, without
limitation, immediate termination of this contract and any remedy consistent with federal copyright laws or applicable licensing
restrictions.
9. EMPLOYEE FINANCIAL INTEREST. CRS 24-18-201 and 24-50-507. The signatories aver that to their knowledge, no
employee of the State has any personal or beneficial interest whatsoever in the service or property described in this contract.
10. [Not Applicable to Intergovernmental Contractsj. ILLEGAL ALIENS - PUBLIC CONTRACTS FOR SERVICES AND
RESTRICTIONS ON PUBLIC BENEFITS. CRS 8-17.5-101 and 24-76.5-101. Contractor certifies that it shall comply with the
provisions of CRS 8-17.5-101 et seq. Contractor shall not knowingly employ or contract with an illegal alien to oerform work under this
contract or enter into a contract with a subcontractor that fails to certify to Contractor that the subcontractor shall not knowingly employ or
contract with an illegal alien to oerform work under this contract. Contractor represents, warrants, and agrees that it (i) has verified that it
does not employ any illegal aliens, through participation in the Basic Pilot Employment Verification Program administered by the Social
Security Administration and Department of Homeland Security, and (il) otherwise shall comply with the requirements of CRS 8-17.5-
102(2)(b). Contractor shall comply with all reasonable requests made in the course of an investigation under CRS 8-17.5-102 by the
Colorado Department of Labor and Employment. Failure to comply with any requirement of this provision or CRS 8-17.5-101 et seq., shall
be cause for termination for breach and Contractor shall be liable for actual and consequential damages.
Contractor, if a natural person eighteen (18) years of age or older, hereby swears or affirms under penalty of perjury that he or
she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) shall comply with the provisions of
CRS 24-76.5-101 et seq., and (iii) shall produce one form of identification required by CRS 24-76.5-103 prior to the effective date
of this contract.
Revised October 25,2006 Effective Date of Special Provisions: August 7,2006
Page 16 of 17
THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT
CONTRACTOR:
STATE OF COLORADO:
BILL RITTER, JR. GOVERNOR
City of Aspen
Legal Name of Contracting Entity
By
Executive Director
Department of Transportation
2000009
COOT Vendor Number
LEGAL REVIEW:
Signature of Authorized Officer
JOHN W. SUTHERS
ATTORNEY GENERAL
By
Print Name & Title of Authorized Officer
CORPORATIONS:
(A corporate attestation is required.)
Attest (Seal) By
(Corporate Secretary or Equivalent. or Town/City/County Clerk)
(Place corporate seal here, if available)
ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER
CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller,
or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is
signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for
the goods and/or services provided.
STATE CONTROLLER:
LESLIE M. SHENEFEL T
By
Date
Page 17 of 17
Exhibit A
FORM 463
or
SCOPE OF WORK
COLORAno DEPARTMENT OF TRANSPORTATION
e:~~:G~B1T A
Ori9.oote: 04/24/2007
Project Code # (SM): 16290 I STiP#: SIN3659
Project #: AOC M045-006
Rev.Date'
--.
Revision #: 0
PE Proiect Code:
R"9ion #: 03
I
Project Description: Aspen FY 2007 CMAQ Diesel
Retrofit
County
Status:
183 Preliminary 0 Final 0 Revised
Submilled By PM: PETERC
-Dat~~---7ko hex;?,
Revised by~
Approved by Program Engineer:
(/JdE4/qzf~) .,4,- k e;/s,'d
I
MurUcipalitv: Asoen
Sv<tem Code: Z -Not on any Federal System
Oversight By A.Exempt
Planned L.aooth: 0.000
Date:
GEographic Location: CITY OF ASPEN
Type of Terrain: Mountainous
Description of Proposed ConstruclionJ1mprovement(Altaeh map shooMng site kx:atlon)
OIESEL RETROFIT PROJECT
Project Characteristics (Proposed) Median (Type): 0 Depressed 0 Painted 0 Raised 0 None
Lhtio 0 TraffIC Control 51 s StriOi
Curb and Gutter LelHum Slots Continuous Wid"'"
Sldwatk Width' 0 RighHum Slots 0 Continuous Width=
Parl," Lane Width: Oeloors S' in Construclion Permanent
[J Landscaping requirements (description): 0 Other (description):
Right of Way
ROW &for Perm. Easement Required
Relocation Required
Temporary Easement Required:
Changes in Access:
Changes 10 Cc4. ""'tit 'll Road.:
Railroad Crossings
Yes!No
No
No
No
No
No
Ese #
UUlities (list names of known \Jtility companies)
N/A
# of Cro&sings:
Environmental
Type:
None
Ap_ On:
Uncle< Project Cod.:
Project #:
16290
CoordlnaUon
o Withdrawn Land. (P""", Si1eo, _IS, Etc.) CIea<ed through BUA Of Forest SetYice Office
o New Trallic Ordinance Requifed 0 Modify Sched<Jle of EJdsllng Ordinance
Other.
Irftgation Otteh Name:
Muncipally. Aspen
Construction Method
NoAd Reasoo:
Entity I Aqeocy Contoct Name;
Phone .:
Guar_ meets current _Als: No
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Page ~ of 3
Project #:
AQC M045-006
$= to stay. R=- to be removed. P= proposed new structufe
Revise Date:
Structure 1D#
y,
aL
Remarks
This is a Diesel Retrofit proje<::t with the CIty of Aspen. The project is being funded through the Congestion Miligation and Air
Quallty (CMAQ) program and will meet all Ole requirements of the C~orado Department of T~nsportation CMAQ program.
The City will seek proposals from qualifted vendOfS fOf the installation of emissions control equipment on up to six (6) NeopIan
AN 435llranslt buses. The intent of this project is to:
1) Replace the current Diesel Oxidation Catalysts (DOCs) with Oiesel Par ticutate Rlters (OPFs) and.
2) Install Closed Crankcase Ventilation or Atter Systems on an Six uni ts.
REPORTING BENEFITS
CDOT is required to report the benefits of projects receiving CMAQ funds to FHW A and
the Colorado Transportation Commission. CDOT established the reporting program
CMAQ REPORTER, in cooperation with the state's Metropolitan Planning Organizations
(MPO), to provide a consistent approach to fulfilling the reporting requirement.
The Local Agency shall be responsible to coordinate with the MPO, or TPR, to submit an annual
report, in the timeframe described below, using the CMAQ REPORTER. The report should
describe, in detail, the performance of the work and the extent to which air pollutant emissions
were reduced during both the contract period and the life of the project. The Local Agency shall
be responsible for gathering before and after data relevant to the benefits calculation, or for
preparing and documenting all relevant estimates and assumptions, and for entering those into
CMAQ REPORTER for review by the MPO, or TPR, and CDOT.
The reporting should occur within 30 days of the end ofthe calendar year (Before January 31).
If this is a multi-year project, a report will need to be filed for each year the project is active.
Reporting for multi-year projects is required before the project has been completed, in order to
determine funding and benefits each fiscal year the project is active.
The link to the CMAQ REPORTER is:
htto:/Iwww.dot.state.co.us/Aoo CMAQI
Enter:
Username: view
Password: view
EXHIBIT C FUNDING PROVISIONS
A. The Local Agency has estimated the total cost the Work to be $36,845.00 which is to be
funded as follows:
1 BUDGETED FUNDS
a. Federal Funds $30,504.00
(82.79% of Participating Costs)
b. Local Agency Matching Funds $6,341.00
(17.21% of Participating Costs)
Local Agency Matching for CDOT -
c. Incurred Non-Participating Costs $0.00
(Including Non-Participating Indirects)
h-OTAL BUDGETED FUNDS $36,845.00
2 ESTIMATED COOT-INCURRED COSTS
a. Federal Share $0.00
(82.79% of Participating Costs)
b. Local Share
Local Agency Share of Participating Costs $0.00
Non-Participating Costs (Including Non-
Participating Indirects) $0.00
Estimated to be Billed to Local Agency $0.00
I TOTAL ESTIMATED CDOT-INCURRED COSTS $0.00
3 ESTIMATED PAYMENT TO LOCAL AGENCY
a. Federal Funds Budgeted (1 a) $30,504.00
b. Less Estimated Federal Share of CDOT-Incurred Costs (2a) $0.00
TOTAL ESTIMATED PAYMENT TO LOCAL AGENCY $30,504.00
FOR COOT ENCUMBRANCE PURPOSES
Total Encumbrance Amount ($30,504.00
divided by 82.79%) $36,845.00
Less ROW Acquisition 3111 and/or
ROW Relocation 3109 $0.00
Net to be encumbered as follows: $0.00
WBS Element 16290.10.50 Misc. 3404 $36,845.00
Exhibit C - Page I of 2
B. The matching ratio for the federal participating funds for this project is 82.79% federal-aid
funds (CFDA #20 2050) to 17.21 % Local Agency funds, it being understood that such ratio
applies only to the $36,845.00 that is eligible for federal participation, it being further
understood that all non-participating costs are borne by the Local Agency at 100%. If the
total participating cost of performance of the Work exceeds $36,845.00, and additional
federal funds are made available for the project, the Local Agency shall pay 17.21% of all
such costs eligible for federal participation and 100% of all non-participating costs; if
additional federal funds are not made available, the local agency shall pay all such excess
costs. If the total participating cost of performance of the Work is less than $36,845.00, then
the amounts of Local Agency and federal-aid funds will be decreased in accordance with the
funding ratio described herein. The performance of the Work shall be at no cost to the State.
C. The maximum amount payable to the Local Agency under this contract shall be $36,845.00
(For CDOT accounting purposes, the federal funds of$30,S04.00 and local matching funds
of$6,341.00 will be encumbered for a total encumbrance of$36,84S.00), unless such amount
is increased by an appropriate written modification to this contract executed before any
increased cost is incurred. It is understood and agreed by the parties hereto that the total cost
of the Work stated hereinbefore is the best estimate available, based on the design data as
approved at the time of execution of this contract, and that such cost is subject to revisions
(in accord with the procedure in the previous sentence) agreeable to the parties prior to bid
and award.
D. The parties hereto agree that this contract is contingent upon all funds designated for the
project herein being made available from federal and/or state and/or Local Agency sources,
as applicable. Should these sources, either federal or Local Agency, fail to provide necessary
funds as agreed upon herein, the contract may be terminated by either party, provided that
any party terminating its interest and obligations herein shall not be relieved of any
obligations which existed prior to the effective date of such termination or which may occur
as a result of such termination.
Exhibit C - Page 2 of2
Exhibit D
EXHIBIT D
Certification for Federal-Aid Contracts
The contractor certifies, by signing this contract, to the best of its knowledge and belief, that:
I. No Federal appropriated funds have been paid or will be paid, by or on behalf or the
undersigned, to any person for influencing or attempting to influence an officer or employee of any
Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or of Congress, or an employee of a
Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement,
the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report
Lobbying," in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to
file the required certification shall be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
The prospective participant also agree by submitting his or her bid or proposal that he or she shall
require that the language of this certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such sub-recipients shall certifY and disclose accordingly.
Required by 23 CFR 635.112
Exhibit D - Page I of I
Exhibit E
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
SECTION I. Policv.
It is the policy of the Colorado Department of Transportation (CDOT) that disadvantaged business
enterprises shall have the maximum opportunity to participate in the performance of contracts
financed in whole or in part with Federal funds under this agreement, pursuant to 49 CFR Part 23.
Consequently, the 49 CFR Part IE DBE requirements the Colorado Department of Transportation
DBE Program (or a Local Agency DBE Program approved in advance by the State) apply to this
agreement.
SECTION 2. DBE Obligation.
The recipient or its contractor agrees to ensure that disadvantaged business enterprises as determined
by the Office of Certification at the Colorado Department of Regulatory Agencies have the maximum
opportunity to participate in the performance of contracts and subcontracts financed in whole or in
part with Federal funds provided under this agreement. In this regard, all participants or contractors
shall take all necessary and reasonable steps in accordance with the CDOT DBE program (or a Local
Agency DBE Program approved in advance by the State) to ensure that disadvantaged business
enterprises have the maximum opportunity to compete for and perform contracts. Recipients and
their contractors shall not discriminate on the basis of race, color, national origin, or sex in the award
and performance of CDOT assisted contracts.
SECTION 3 DBE Program.
The contractor (sub-recipient) shall be responsible for obtaining the Disadvantaged Business
Enterprise Program of the Colorado Department of Transportation, 1988, as amended, and shall
comply with the applicable provisions of the program. (If applicable).
A copy of the DBE Program is available from and will be mailed to the contractor upon request:
Business Programs Office
Colorado Department of Transportation
4201 East Arkansas Avenue, Room 287
Denver, Colorado 80222-3400
Phone: (303) 757-9234
revised 1/22/98
Required by 49 CFR Part 23.41
Exhibit E - Page I of I
Exhibit B
LOCAL AGENCY
ORDINANCE
or
RESOLUTION
COLORADO DEPARTMENT OF TRANSPORTATION CONTRACT AUTHORI1Y:
FUNDING INCREASE/DECREASE AND APPROVAL LETTER Region: State Controller Policy letter on June 12, 1996
Comnlete section 1 and submit to CDOT Controller's office. CDOT Controller letter on Mav 23, 1996
(l )This form to be used for the following contracts/situations only (check the appropriate situation):
_indefinite quantity, order more/add more _utility/railroad, underestimated total cost
_CDOT construction, sum of CMO's _LA construction, underestimated cost
CDOT construction, underestimated total cost CDOT consultant, underestimated cost
SECTION 1 (Renion use)
Date: Proiect code
To: CDOT Controller (FAX #(303) 757-9573 or e-mail CONTROLLER) Project #
From: Office: Phone # FAX #
Renion #
CDOT has executed a contract with:
Address:
CDOT Vendor # Contract routing # SAP Purchase Order Number
Fund Functional Area GL Account Number WBS Element or Functional Center
Original contract amount Has a Budget Request been processed to cover the contract amount increase?
$ ves no
Previous Funding Letter(s) total Pre parer's name
$
(Funding letter #1 thru#---.J PHONE NO:
This Funding Letter total Contract Administrator's/Business Manager's Approval
$
(# ---Y PHONE NO:
Adjusted contract amount CDOT Designee Approval
$
Local Agency approval
SECTION 2 (Controller's Office use)
Total allotment amount Commission budget
$ $
If construction: CE charges Indirect chgs Adjusted contract amount plus total CE & indirect
_CE pool elig. $ $ charges calculation S
I have reviewed the financial status of the project, organization, grant and have determined that sufficient funds are available
to cover this increase, effective as of
State Controller or Delegee Date
Exhibit F
Exhibit F - Page I of I
LOCAL AGENCY
CONTRACT ADMINISTRATION
CHECKLIST
NOT APPLICABLE TO THIS AGREEMENT
Exhibit G - Page I of I
Exhibit G
Exhibit H
THE LOCAL AGENCY SHALL USE THESE PROCEDURES TO IMPLEMENT FEDERAL-AID
PROJECT AGREEMENTS WITH PROFESSIONAL CONSULTANT SERYICES
Title 23 Code of Federal Regulations (CFR) 172 applies to a federally funded local agency project agreement
administered by CDOT that involves professional consultant services. 23 CFR 172.1 states "The policies and procedures
involve federally funded contracts for engineering and design related services for projects subject to the provisions of23
U.S.c. 112(a) and are issued to ensure that a qualified consultant is obtained through an equitable selection process, that
prescribed work is properly accomplished in a timely manner, and at fair and reasonable cost" and according to 23 CFR
172.5 "Price shall not be used as a factor in the analysis and selection phase." Therefore, local agencies must comply with
these CFR requirements when obtaining professional consultant services under a federally funded consultant contract
administered by CDOT.
CDOT has formulated its procedures in Procedural Directive (P.D.) 400.1 and the related operations guidebook titled
"Obtaining Professional Consultant Services". This directive and guidebook incorporate requirements from both Federal
and S tate regulations, i.e.. 23 CFR 172 and Colorado Revised Statute (C.R. S.) 24-30-140 I et seq. Copies of the directive
and the guidebook may be obtained upon request from CDOT's Agreements and Consultant Management Unit. [Local
agencies should have their own written procedures on file for each method of procurement that addresses the items in 23
CFR 172].
Because the procedures and laws described in the Procedural Directive and the guidebook are quite lengthy, the
subsequent steps serve as a short-hand guide to CDOT procedures that a local agency must follow in obtaining
professional consultant services. This guidance follows the format of23 CFR 172. The steps are:
I. The contracting local agency shall document the need for obtaining professional services.
2. Prior to solicitation for consultant services, the contracting local agency shall develop a detailed scope of work
and a list of evaluation factors and their relative importance. The evaluation factors are those identified in C.R.S.
24-30-1403. Also, a detailed cost estimate should be prepared for use during negotiations.
3. The contracting agency must advertise for contracts in conformity with the requirements ofC.R.S. 24-30-1405.
The public notice period, when such notice is required. is a minimum of 15 days prior to the selection of the three
most qualified firms and the advertising should be done in one or more daily newspapers of general circulation.
4. The request for consultant services should include the scope of work, the evaluation factors and their relative
importance, the method of payment. and the goal of ten percent (10%) for Disadvantaged Business Enterprise
(DB E) participation as a minimum for the project.
5. The analysis and selection of the consultants should be done in accordance with C.R.S. 24-30-1403. This section
of the regulation identifies the criteria to be used in the evaluation of CD aT pre-qualified prime consultants and
their team. It also shows which criteria are used to short-list and to make a final selection.
The short-list is based on the following evaluation factors:
a. Qualifications,
b. Approach to the project,
c. Ability to furnish professional services.
d. Anticipated design concepts, and
e. Alternative methods of approach for furnishing the professional services.
Evaluation factors for final selection are the consultant's:
a. Abilities of their personnel,
b. Past performance,
Exhibit H - Page I of2
,
Exhibit H
c. Willingness to meet the time and budget requirement,
d. Location,
e. Current and projected work load,
f. Volume of previously awarded contracts, and
g. Involvement of minority consultants.
6. Once a consultant is selected, the local agency enters into negotiations with the consultant to obtain a fair and
reasonable price for the anticipated work. Pre-negotiation audits are prepared for contracts expected to be greater
than $50,000. Federal reimbursement for costs are limited to those costs allowable under the cost principles of 48
CFR 31. Fixed fees (profit) are detennined with consideration given to size, complexity, duration, and degree of
risk involved in the work. Profit is in the range of six (6) to fifteen (15) percent of the total direct and indirect
costs.
7. A qualified local agency employee shall be responsible and in charge of the project to ensure that the work being
pursued is complete, accurate, and consistent with the terms, conditions, and specifications of the contract. At the
end of project, the local agency prepares a performance evaluation (a CDOT form is available) on the consultant.
8. Each of the steps listed above is to be documented in accordance with the provisions of 49 CFR 18.42. which
provide for records to be kept at least three (3) years from the date that the local agency submits its final
expenditure report. Records of projects under litigation shall be kept at least three (3) years after the case has
been settled.
The C.R.S. 24-30-1401 through 24-30-1408, 23 CFR Part 172, and P.D. 400.1, provide additional details for complying
with the eight (8) steps just discussed.
Exhibit H - Page 2 of2
FHW A Form 1273
Exhibit I
FHWA-1273 Electronic version -- March 10. 1994
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
I. General...................... ............... ................... 1
II. Nondiscrimination....................... ............................. 1
III. Non-segregated Facilities .......................... 3
IV. Payment of Predetermined Minimum Wage. 3
V. Statements and Payrolls ............................ 6
VI. Record of Materials, Supplies, and Labor ............... 6
VII. Subletting or Assigning the Contract ........ 7
VIII. Safety: Accident Prevention .................................... 7
IX. False Statements Concerning Highway Projects .... 7
X. Implementation of Clean Air Act and Federal
Water Pollution Control Act ........................ ............................. 8
Xl. Certification Regarding Debarment, Suspension,
Ineligibility, and Voluntary Exclusion......................................... 8
XII. Certification Regarding Use of Contract Funds for
Lobbying........... .................................... .................................... g
ATTACHMENTS
A. Employment Preference for Appalachian Contracts
(Included in Appalachian contracts only)
I. GENERAL
1. These contract provisions shall apply to all work performed
on the contract by the contractor's own organization and with the
assistance of workers under the contractor's immediate superin-
tendence and to all work performed on the contract by piecework,
station work, or by subcontract.
2. Except as otherwise provided for in each section, the
contractor shall insert in each subcontract all of the stipulations
contained in these Required Contract Provisions, and further
require their inclusion in any lower tier subcontract or purchase
order that may in turn be made. The Required Contract Provi-
sions shall not be incorporated by reference in any case. The
prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with these Required
Contract Provisions.
3. A breach of any of the stipulations contained in these
Required Contract Provisions shall be sufficient grounds for
termination of the contract.
4. A breach of the following clauses of the Required Contract
Provisions may also be grounds for debarment as provided in 29
CFR 5.12:
Section I, paragraph 2;
Section IV, paragraphs 1, 2, 3, 4, and 7;
Section V, paragraphs 1 and 2a through 2g.
5. Disputes arising out of the labor standards provisions of
Section IV (except paragraph 5) and Section V of these Required
Contract Provisions shall not be subject to the general disputes
clause of this contract. Such disputes shaH be resolved in accor-
dance with the procedures of the U.S. Department of Labor (DOL)
as set forth in 29 CFR 5, 6, and 7. Disputes within the meaning of
this clause include disputes between the contractor (or any of its
subcontractors) and the contracting agency, the DOL, or the
contractor's employees or their representatives.
6. Selection of Labor: During the performance of this con-
tract, the contractor shall not
a. discriminate against labor from any other State, posses-
sion, or territory of the United States (except for employment
preference for Appalachian contracts, when applicable, as
specified in Attachment A), or
b. employ convict labor for any purpose within the limits of
the project unless it is labor performed by convicts who are on
parole, supervised release, or probation.
II. NONDISCRIMINATION
(Applicable to all Federal-aid construction contracts and to all
related subcontracts of $10,000 or more.)
1. Equal Employment Opportunity: Equal employment
opportunity (EEO) requirements not to discriminate and to take
affirmative action to assure equal opportunity as set forth under
laws, executive orders, rules, regulations (28 CFR 35, 29 CFR
1630 and 41 CFR 60) and orders of the Secretary of Labor as
modified by the provisions prescribed herein, and imposed
pursuant to 23 U.S.C. 140 shall constitute the EEO and specific
affirmative action standards for the contractor's project activities
under this contract. The Equal Opportunity Construction Contract
Specifications set forth under 41 CFR 60-4.3 and the provisions of
the American Disabilities Act of 1990 (42 U.S.C. 12101 ~ ~.)
set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by
reference in this contract. In the execution of this contract, the
contractor agrees to comply with the following minimum specific
requirement activities of EEO:
a. The contractor will work with the State highway agency
(SHA) and the Federal Government in carrying out EEO obliga-
tions and in their review of hislher activities under the contract.
b. The contractor will accept as his operating policy the
following statement:
"It is the policy of this Company to assure that applicants are
employed, and that employees are treated during employ-
ment, without regard to their race, religion, sex, color,
national origin, age or disability. Such action shall include:
employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of payor
other forms of compensation; and selection for training,
including apprenticeship, pre-apprenticeship, and/or
on-the-job training."
2. EEO Officer: The contractor will designate and make
known to the SHA contracting officers an EEO Officer who will
have the responsibility for and must be capable of effectively
administering and promoting an active contractor program of EEO
and who must be assigned adequate authority and responsibility
to do so.
3. Dissemination of Policy: All members of the contractor's
staff who are authorized to hire, supervise, promote, and
discharge employees, or who recommend such action, or who are
substantially involved in such action, will be made fully cognizant
Exhibit I - Pagel of9
of, and will implement, the contractor's EEO policy and contractual
responsibilities to provide EEO in each grade and classification of
employment. To ensure that the above agreement will be met, the
following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office
employees wilt be conducted before the start of work and then not
less often than once every six months, at which time the contract-
or's EEO policy and its implementation will be reviewed and
explained. The meetings will be conducted by the EEO Officer.
b. All new supervisory or personnel office employees will be
given a thorough indoctrination by the EEO Officer, covering all
major aspects of the contractor's EEO obligations within thirty
days following their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for
the project will be instructed by the EEO Officer in the contractor's
procedures for locating and hiring minority group employees.
d. Notices and posters setting forth the contractor's EEO
policy will be placed in areas readily accessible to employees,
applicants for employment and potential employees.
e. The contractor's EEO policy and the procedures to
implement such policy will be brought to the attention of employ-
ees by means of meetings, employee handbooks, or other
appropriate means.
4. Recruitment: When advertising foremp!oyees, the contrac-
tor will include in all advertisements for employees the notation:
"An Equal Opportunity Employer." All such advertisements will be
placed in publications having a large circulation among minority
groups in the area from which the project work force would
normally be derived.
a. The contractor will, unless precluded by a valid bargain-
ing agreement, conduct systematic and direct recruitment through
public and private employee referral sources likely to yield
qualified minority group applicants. To meet this requirement the
contractor will identify sources of potential minority group
employees, and establish with such identified sources procedures
whereby minority group applicants may be referred to the
contractor for employment consideration.
b. In the event the contractor has a valid bargaining agree-
ment providing for exclusive hiring hall referrals, he is expected to
observe the provisions of that agreement to the extent that the
system permits the contractor's compliance with EEO contract
provisions. (The DOL has held that where implementation of such
agreements have the effect of discriminating against minorities or
women, or obligates the contractor to do the same, such
implementation violates Executive Order 11246, as amended.)
c. The contractor will encourage his present employees to
refer minority group applicants for employment. Information and
procedures with regard to referring minority group applicants will
be discussed with employees.
5. Personnel Actions: Wages, working conditions, and
employee benefits shall be established and administered, and
personnel actions of every type, including hiring, upgrading,
promotion, transfer, demotion, layoff, and termination, shall be
taken without regard to race, color, religion, sex, national origin,
age or disability. The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project
sites to insure that working conditions and employee facilities do
not indicate discriminatory treatment of project site personnel.
b. The contractor will periodically evaluate the spread of
wages paid within each classification to determine any evidence of
discriminatory wage practices.
Exhibit I
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of
discrimination. Where evidence is found, the contractor will
promptly take corrective action. If the review indicates that the
discrimination may extend beyond the actions reviewed, such
corrective action shall include all affected persons.
d. The contractor will promptly investigate all complaints of alleged
discrimination made to the contractor in connection with his
obligations under this contract, will attempt to resolve such
complaints, and will take appropriate corrective action within a.
reasonable time. If the investigation indicates that the
discrimination may affect persons other than the complainant,
such corrective action shall include such other persons. Upon
completion of each investigation, the contractor wilt inform every
complainant of all of his avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and
increasing the skills of minority group and women employees. and
applicants for employment.
b. Consistent with the contractor's work force requirements
and as permissible under Federal and State regulations, the
contractor shall make full use of training programs, Le.,
apprenticeship, and on-the-job training programs for the
geographical area of contract performance. Where feasible, 25
percent of apprentices or trainees in each occupation shall be in
their first year of apprenticeship or training. In the event a special
provision for training is provided under this contract, this subpara-
graph will be superseded as indicated in the special provision.
c. The contractor will advise employees and applicants for
employment of available training programs and entrance
requirements for each.
d. The contractor witt periodically review the training and
promotion potential of minority group and women employees and
will encourage eligible employees to apply for such training and
promotion.
7. Unions: If the contractor relies in whole or in part upon
unions as a source of employees, the contractor will use hislher
best efforts to obtain the cooperation of such unions to increase
opportunities for minority groups and women within the unions,
and to effect referrals by such unions of minority and female
employees. Actions by the contractor either directly or through a
contractor's association acting as agent will include the
procedures set forth below:
a. The contractor will use best efforts to develop, in
cooperation with the unions, joint training programs aimed toward
qualifying more minority group members and women for
membership in the unions and increasing the skills of minority
group employees and women so that they may qualify for higher
paying employment.
b. The contractor will use best efforts to incorporate an EEO
clause into each union agreement to the end that such union will
be contractually bound to refer applicants without regard to their
race, color, religion, sex, national origin, age or disability.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the extent
such information is within the exclusive possession of the labor
union and such labor union refuses to furnish such information to
the contractor, the contractor shalt so certify to the SHA and shall
set forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor
with a reasonable flow of minority and women referrals within the
Exhibit I - Page 2 of 9
REQUIRED BY 23 CPR 633.102
time limit set forth in the collective bargaining agreement, the
contractor will, through independent recruitment efforts, fill the
employment vacancies without regard to race, color, religion, sex,
national origin, age or disability; making full efforts to obtain
qualified and/or qualifiable minority group persons and women.
(The DOL has held that it shall be no excuse that the union with
which the contractor has a collective bargaining agreement
providing for exclusive referral failed to refer minority employees.)
In the event the union referral practice prevents the contractor
from meeting the obligations pursuant to Executive Order 11246,
as amended. and these special provisions, such contractor shall
immediately notify the SHA.
8. Selection of Subcontractors. Procurement of Materials
and Leasing of Equipment: The contractor shall not discriminate
on the grounds of race, color, religion, sex, national origin, age or
disability in the selection and retention of subcontractors, including
procurement of materials and leases of equipment.
a. The contractor shall notify all potential subcontractors and
suppliers of hislher EEO obligations under this contract.
b. Disadvantaged business enterprises (DBE), as defined in
49 CFR 23, shall have equal opportunity to compete for and
perform subcontracts which the contractor enters into pursuant to
this contract. The contractor will use his best efforts to solicit bids
from and to utilize DBE subcontractors or subcontractors with
meaningful minority group and female representation among their
employees. Contractors shall obtain lists of DBE construction
firms from SHA personnel.
c. The contractor will use his best efforts to ensure subcon-
tractor compliance with their EEO obligations.
9. Records and Reports: The contractor shall keep such
records as necessary to document compliance with the EEO
requirements. Such records shall be retained for a period of three
years following completion of the contract work and shall be
available at reasonable times and places for inspection by autho-
rized representatives of the SHA and the FHW A.
a. The records kept by the contractor shall document the
following:
(1) The number of minority and non-minority group
members and women employed in each work classification on the
project;
(2) The progress and efforts being made in cooperation
with unions, when applicable, to increase employmentopportuni-
ties for minorities and women;
(3) The progress and efforts being made in locating,
hiring, training, qualifying, and upgrading minority and female
employees; and
(4) The progress and efforts being made in securing
the services of DBE subcontractors or subcontractors with
meaningful minority and female representation among their
employees.
b. The contractors will submit an annual report to the SHA
each July for the duration of the project, indicating the number of
minority, women, and non-minority group employees currently
engaged in each work classification required by the contract work.
This information is to be reported on Form FHW A-1391. If on-the
job training is being required by special provision, the contractor
will be required to collect and report training data.
III. NONSEGREGATED FACILITIES
(Applicable to all Federal-aid construction contracts and to all
Exhibit I
related subcontracts of $1 0,000 or more.)
a. By submission of this bid, the execution of this contract
or subcontract, or the consummation of this material supply agree-
ment or purchase order, as appropriate, the bidder, Federal-aid
construction contractor, subcontractor, material supplier, or
vendor, as appropriate, certifies that the firm does not maintain or
provide for its employees any segregated facilities at any of its
establishments, and that the firm does not permit its employees to
perform their services at any location, under its control, where
segregated facilities are maintained. The firm agrees that a
breach of this certification is a violation of the EEO provisions of
this contract. The firm further certifies that no employee will be
denied access to adequate facilities on the basis of sex or
disability.
b. As used in this certification. the term "segregated
facilities" means any waiting rooms, work areas, restrooms and
washrooms, restaurants and other eating areas, timeclocks, locker
rooms, and other storage or dressing areas, parking lots, drinking
fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees which are segregated by
explicit directive. or are, in fact, segregated on the basis of race,
color, religion, national origin. age or disability, because of habit,
local custom, or otherwise. The only exception will be for the
disabled when the demands for accessibility override (e.g.
disabled parking).
c. The contractor agrees that it has obtained or will obtain
identical certification from proposed subcontractors or material
suppliers prior to award of subcontracts or consummation of
material supply agreements of $10,000 or more and that it will
retain such certifications in its files.
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE
(Applicable to all Federal-aid construction contracts exceeding
$2,000 and to all related subcontracts, except for projects located
on roadways classified as local roads or rural minor collectors,
which are exempt.)
1. General:
a. All mechanics and laborers employed or working upon
the site of the work will be paid unconditionally and not less often
than once a week and without subsequent deduction or rebate on
any account [except such payroll deductions as are permitted by
regulations (29 CFR 3) issued by the Secretary of Labor under the
Copeland Act (40 U.S.C. 276c)] the full amounts of wages and
bona fide fringe benefits (or cash equivalents thereof) due at time
of payment. The payment shall be computed at wage rates not
less than those contained in the wage determination of the
Secretary of Labor (hereinafter "the wage detennination") which is
attached hereto and made a part hereof, regardless of any
contractual relationship which may be alleged to exist between the
contractor or its subcontractors and such laborers and med1anics.
The wage determination (including any additional classifications
and wage rates conformed under paragraph 2 of this Section IV
and the DOL poster (WH-1321) or Form FHWA-149S) shall be
posted at all times by the contractor and its subcontractors at the
site of the work in a prominent and accessible place where it can
be easily seen by the workers. For the purpose of this Section,
contributions made or costs reasonably anticipated for bona fide
fringe benefits under Section 1(b)(2) of the Davis-Bacon Act (40
U.S.C. 276a) on behalf of laborers or mechanics are considered
wages paid to such laborers or mechanics, subject to the provi-
sions of Section IV, paragraph 3b, hereof. Also, for the purpose of
this Section, regular contributions made or costs incurred for more
than a weekly period (but not less often than quarterly) under
plans, funds, or programs, which cover the particular weekly
period, are deemed to be constructively made or incurred during
such weekly period. Such laborers and mechanics shall be paid
the appropriate wage rate and fringe benefits on the wage
Exhibit I - Page 3 of 9
REQUIRED BY 23 CFR 633.102
determination for the classification of work actually performed,
without regard to skill, except as provided in paragraphs 4 and 5
of this Section IV.
b. Laborers or mechanics performing work in more than
one classification may be compensated at the rate specified for
each classification for the time actually worked therein, provided,
that the employer's payroll records accurately set forth the time
spent in each classification in which work is performed.
c. All rulings and interpretations of the Davis~Bacon Act and
related acts contained in 29 CFR 1, 3, and 5 are herein incorpo~
rated by reference in this contract.
2. Classification:
a. The SHA contracting officer shall require that any class of
laborers or mechanics employed under the contract, which is not
listed in the wage determination, shall be classified in
conformance with the wage determination.
b. The contracting officer shall approve an additional
classification, wage rate and fringe benefits only when the
following criteria have been met:
(1) the work to be performed by the additional
classification requested is not performed by a classification in the
wage determination;
(2) the additional classification is utilized in the area by
the construction industry;
(3) the proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to the wage rates
contained in the wage determination; and
(4) with respect to helpers, when such a classification
prevails in the area in which the work is performed.
c. If the contractor or subcontractors, as appropriate, the
laborers and mechanics (if known) to be employed in the addition-
al classification or their representatives, and the contracting officer
agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate). a report of the
action taken shall be sent by the contracting officer to the DOL,
Administrator of the Wage and Hour Division, Employment Stan-
dards Administration, Washington, D.C. 20210. The Wage and
Hour Administrator, or an authorized representative, will approve,
modify, or disapprove every additional classification action within
30 days of receipt and so advise the contracting officer or will
notify the contracting officer within the 3D-day period that
additional time is necessary.
d. In the event the contractor or subcontractors, as appro-
priate, the laborers or mechanics to be employed in the additional
classification or their representatives, and the contracting officer
do not agree on the proposed classification and wage rate
(including the amount designated for fringe benefits, where
appropriate), the contracting officer shall refer the questions,
including the views of all interested parties and the recommenda-
tion of the contracting officer, to the Wage and Hour Administrator
fordetermination. Said Administrator, oran authorized represen-
tative, will issue a determination within 30 days of receipt and so
advise the contracting officer or will notify the contracting officer
within the 30-day period that additional time is necessary
e. The wage rate (including fringe benefits where appropri-
ate) determined pursuant to paragraph 2c or 2d of this Section IV
shall be paid to all workers performing work in the additional
classification from the first day on which work is pertormed in the
classification.
3. Payment of Fringe Benefits:
Exhibit I
a. Whenever the minimum wage rate prescribed in the
contract for a class of laborers or mechanics includes a fringe
benefit which is not expressed as an hourly rate, the contractor or
subcontractors, as appropriate, shall either pay the benefit as
stated in the wage determination or shall pay another bona fide
fringe benefit or an hourly case equivalent thereof.
b. If the contractor or subcontractor, as appropriate, does
not make payments to a trustee or other third person, he/she may
consider as a part of the wages of any laborer or mechanic the
amount of any costs reasonably anticipated in providing bona fide
fringe benefits under a plan or program, provided, that the Secre-
tary of Labor has found, upon the written request of the contractor,
that the applicable standards of the Davis-Bacon Act have been
met. The Secretary of Labor may require the contractor to set
aside in a separate account assets for the meeting of obligations
under the plan or program.
4. Apprentices and Trainees (Programs of the U.S. DOL)
and Helpers:
a. Apprentices:
(1) Apprentices will be permitted to work at less than
the predetermined rate for the work they performed when they are
employed pursuant to and individually registered in a bona fide
apprenticeship program registered with the DOL, Employment and
Training Administration, Bureau of Apprenticeship and Training, or
with a State apprenticeship agency recognized by the Bureau, or if
a person is employed in hislher first 90 days of probationary
employment as an apprentice in such an apprenticeship program,
who is not individually registered in the program, but who has
been certified by the Bureau of Apprenticeship and Training or a
State apprenticeship agency (where appropriate) to be eligible for
probationary employment as an apprentice.
(2) The allowable ratio of apprentices to journeyman.
level employees on the job site in any craft classification shall not
be greater than the ratio permitted to the contractor as to the
entire work force under the registered program. Any employee
listed on a payroll at an apprentice wage rate, who is not regis.
tered or otherwise employed as stated above, shall be paid not
less than the applicable wage rate listed in the wage determina-
tion for the classification of work actually performed. In addition,
any apprentice performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not less
than the applicable wage rate on the wage determination for the
work actually performed. Where a contractor or subcontractor is
performing construction on a project in a locality other than that in
which its program is registered, the ratios and wage rates (ex-
pressed in percentages of the journeyman-level hourly rate)
specified in the contractor's or subcontractor's registered program
shall be observed.
(3) Every apprentice must be paid at not less than the
rate specified in the registered program for the apprentice's level
of progress, expressed as a percentage of the journeyman-level
hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the
provisions of the apprenticeship program. If the apprenticeship
program does not specify fringe benefits, apprentices must be
paid the full amount of fringe benefits listed on the wage determi~
nation for the applicable classification. If the Administrator for the
Wage and Hour Division determines that a different practice
prevails for the applicable apprentice classification, fringes shall
be paid in accordance with that determination.
(4) In the event the Bureau of Apprenticeship and
Training, or a State apprenticeship agency recognized by the
Bureau, withdraws approval of an apprenticeship program, the
contractor or subcontractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the
Exhibit I - Page 4 of 9
REQUIRED BY 23 CPR 633.102
comparable work performed by regular employees until an accept-
able program is approved.
b. Trainees:
(1) Except as provided in 29 CFR 5.16, trainees will not
be permitted to work at less than the predetermined rate for the
work performed unless they are employed pursuant to and
individually registered in a program which has received prior
approval, evidenced by formal certification by the DOL,
Employment and Training Administration.
(2) The ratio of trainees to journeyman-level employees
on the job site shall not be greater than permitted under the plan
approved by the Employment and Training Administration. Any
employee listed on the payroll at a trainee rate who is not
registered and participating in a training plan approved by the
Employment and Training Administration shall be paid not less
than the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any trainee
performing work on the job site in excess of the ratio permitted
under the registered program shall be paid not less than the
applicable wage rate on the wage determination for the work
actually performed.
(3) Every trainee must be paid at not less than the rate
specified in the approved program for hislher level of progress,
expressed as a percentage of the journeyman-level hourly rate
specified in the applicable wage determination. Trainees shall be
paid fringe benefits in accordance with the provisions of the
trainee program. If the trainee program does not mention fringe
benefits. trainees shall be paid the full amount of fringe benefits
listed on the wage determination unless the Administrator of the
Wage and Hour Division determines that there is an apprentice-
ship program associated with the corresponding journeyman-level
wage rate on the wage determination which provides for less than
full fringe benefits for apprentices, in which case such trainees
shall receive the same fringe benefits as apprentices.
(4) In the event the Employment and Training
Administration withdraws approval of a training program, the
contractor or subcontractor will no longer be permitted to utilize
trainees at less than the applicable predetermined rate for the
work performed until an acceptable program is approved.
c. Helpers:
Helpers will be permitted to work on a project if the
helper classification is specified and defined on the applicable
wage determination or is approved pursuant to the conformance
procedure set forth in Section IV.2. Any worker listed on a payroll
at a helper wage rate. who is not a helper under a approved
definition, shall be paid not less than the applicable wage rate on
the wage determination for the classification of work actually per-
formed.
5. Apprentices and Trainees (Programs of the U.S. DOT):
Apprentices and trainees working under apprenticeship and
skill training programs which have been certified by the Secretary
of Transportation as promoting EEO in connection with Federal-
aid highway construction programs are not subject to the require-
ments of paragraph 4 of this Section IV. The straight time hourly
wage rates for apprentices and trainees under such programs will
be established by the particular programs. The ratio of apprentic-
es and trainees to journeymen shall not be greater than permitted
by the terms of the particular program.
6. Withholding:
The SHA shall upon its own action or upon written request
of an authorized representative of the DOL withhold. or cause to
be withheld, from the contractor or subcontractor under this
Exhibit I
contract or any other Federal contract with the same prime
contractor. or any other Federally-assisted contract subject to
Davis-Bacon prevailing wage requirements which is held by the
same prime contractor, as much of the accrued payments or
advances as may be considered necessary to pay laborers and
mechanics, including apprentices, trainees. and helpers, em-
ployed by the contractor or any subcontractor the full amount of
wages required by the contract. In the event of failure to pay any
laborer or mechanic, induding any apprentice, trainee, or helper,
employed or working on the site of the work. all or part of the
wages required by the contract, the SHA contracting officer may,
after written notice to the contractor. take such action as may be
necessary to cause the suspension of any further payment,
advance, or guarantee of funds until such violations have ceased.
7. Overtime Requirements:
No contractor or subcontractor contracting for any part of
the contract work which may require or involve the employment of
laborers, mechanics, watchmen. or guards (induding apprentices,
trainees, and helpers described in paragraphs 4 and 5 above)
shall require or pennit any laborer, mechanic, watchman, or guard
in any workweek in which he/she is employed on such work. to
work in excess of 40 hours in such workweek unless such laborer,
mechanic. watchman, or guard receives compensation at a rate
not less than one-and-one-half times hislher basic rate of pay for
all hours worked in excess of 40 hours in such workweek.
8. Violation:
Liability for Unpaid Wages; Liquidated Damages: In the
event of any violation of the clause set forth in paragraph 7 above,
the contractor and any subcontractor responsible thereof shall be
liable to the affected employee for hislher unpaid wages. In
addition, such contractor and subcontractor shall be liable to the
United States (in the case of work done under contract for the
District of Columbia or a territory, to such District or to such
territory) for liquidated damages. Such liquidated damages shall
be computed with respect to each individual laborer. mechanic,
watchman, or guard employed in violation of the clause setforth in
paragraph 7, in the sum of $10 for each calendar day on which
such employee was required or pennitted to work in excess of the
standard work week of 40 hours without payment of the overtime
wages required by the clause set forth in paragraph 7.
g. Withholding for Unpaid Wages and Liquidated Damages:
The SHA shall upon its own action or upon written request of
any authorized representative of the DOL withhold, or cause to be
withheld, from any monies payable on account of work perfonned
by the contractor or subcontractor under any such contract or any
other Federal contract with the same prime contractor. or any
other Federally-assisted contract subject to the Contract Work
Hours and Safety Standards Act, which is held by the same prime
contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such contractor or subcontractor for unpaid
wages and liquidated damages as provided in the clause set forth
in paragraph 8 above.
V. STATEMENTS AND PAYROLLS
(Applicable to all Federal-aid construction contracts exceeding
$2.000 and to all related subcontracts. except for projects located
on roadways classified as local roads or rural collectors. which are
exempt. )
1. Compliance w~h Copeland Regulations (29 CFR 3):
The contractor shall comply with the Copeland Regulations of
the Secretary of labor which are herein incorporated by reference.
2. Payrolls and Payroll Records:
Exhibit I - Page 5 of 9
REQUIRED BY 23 CFR 633.102
a. Payrolls and basic records relating thereto shall be
maintained by the contractor and each subcontractor during the
course of the work and preserved for a period of 3 years from the
date of completion of the contract for all laborers, mechanics,
apprentices, trainees, watchmen, helpers, and guards working at
the site of the work.
b. The payroll records shall contain the name, social
security number, and address of each such employee; his or her
correct classification; hourly rates of wages paid (including rates of
contributions or costs anticipated for bona fide fringe benefits or
cash equivalent thereof the types described in Section 1(bX2)(B)
of the Davis Bacon Act); daily and weekly number of hours
worked; deductions made; and actual wages paid. In addition, for
Appalachian contracts, the payroll records shall contain a notation
indicating whether the employee does, or does not, normally
reside in the labor area as defined in Attachment A, paragraph 1.
Whenever the Secretary of Labor, pursuant to Section IV,
paragraph 3b, has found that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated
in providing benefits under a plan or program described in Section
1(b)(2)(B) of the Davis Bacon Act. the contractor and each
subcontractor shall maintain records which show that the commit-
ment to provide such benefits is enforceable, that the plan or
program is financially responsible, that the plan or program has
been communicated in writing to the laborers or mechanics
affected, and show the cost anticipated or the actual cost incurred
in providing benefits. Contractors or subcontractors employing
apprentices or trainees under approved programs shall maintain
written evidence of the registration of apprentices and trainees,
and ratios and wage rates prescribed in the applicable programs.
c. Each contractor and subcontractor shall furnish, each
week in which any contract work is performed, to the SHA resident
engineer a payroll of wages paid each of its employees (including
apprentices, trainees, and helpers, described in Section IV, para-
graphs 4 and 5, and watchmen and guards engaged on work
during the preceding weekly payroll period). The payroll submitted
shall set out accurately and completely all of the information
required to be maintained under paragraph 2b of this Section V.
This information may be submitted in any form desired. Optional
Form WH-347 is available for this purpose and may be purchased
from the Superintendent of Documents (Federal stock number
029-005-0014-1), U.S. Government Printing Office. Washington.
D.C. 20402. The prime contractor is responsible for the submis-
sion of copies of payrolls by all subcontractors.
d. Each payroll submitted shall be accompanied by a
"Statement of Compliance," signed by the contractor or subcon-
tractor or hislher agent who pays or supervises the payment of the
persons employed under the contract and shall certify the follow-
ing:
(1) that the payroll for the payroll period contains the
information required to be maintained under paragraph 2b of this
Section V and that such information is correct and complete;
(2) that such laborer or mechanic (including each
helper, apprentice, and trainee) employed on the contract during
the payroll period has been paid the full weekly wages earned,
without rebate, either directly or indirectly, and that no deductions
have been made either directly or indirectly from the full wages
earned, other than permissible deductions as set forth in the
Regulations, 29 CFR 3:
(3) that each laborer or mechanic has been paid not
less that the applicable wage rate and fringe benefits or cash
equivalent for the classification of worked performed, as specified
in the applicable wage determination incorporated into the
contract.
e. The weekly submission of a properly executed certifica-
Exhibit I
tion set forth on the reverse side of Optional Form WH-347 shall
satisfy the requirement for submission of the "Statement of
Compliance" required by paragraph 2d of this Section V.
f. The falsification of any of the above certifications may
subject the contractor to civil or criminal prosecution under 18
U.S.C. 1001 and 31 U.S.C. 231.
g. The contractor or subcontractor shall make the records
required under paragraph 2b of this Section V available for
inspection, copying, or transcription by authorized representatives
of the SHA, the FHW A, or the DOL, and shall permit such repre.
sentatives to interview employees during working hours on the job.
If the contractor or subcontractor fails to submit the required
records or to make them available, the SHA, the FHWA, the DOL,
or all may, after written notice to the contractor, sponsor, applicant,
or owner, take such actions as may be necessary to cause the
suspension of any further payment, advance, or guarantee of
funds. Furthermore, failure to submit the required records upon
request or to make such records available may be grounds for
debarment action pursuant to 29 CFR 5.12.
VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR
1. On aU Federal-aid contracts on the National Highway
System, except those which provide solely for the installation of
protective devices at railroad grade crossings, those which are
constructed on a force account or direct labor basis, highway
beautification contracts, and contracts for which the total final
construction cost for roadway and bridge is less than $1,000,000
(23 CFR 635) the contractor shall:
a. Become familiar with the list of specific materials and
supplies contained in Form FHWA-47, "Statement of Materials
and Labor Used by Contractor of Highway Construction Involving
Federal Funds," prior to the commencement of work under this
contract.
b. Maintain a record of the total cost of all materials and
supplies purchased for and incorporated in the work, and also of
the quantities of those specific materials and supplies listed on
Form FHWA-47, and in the units shown on Form FHWA-47.
c. Furnish, upon the completion of the contract. to the SHA
resident engineer on Form FHWA-47 together with the data
required in paragraph 1 b relative to materials and supplies, a final
labor summary of all contract work indicating the total hours
worked and the total amount earned.
2. At the prime contractor's option, either a single report
covering all contract work or separate reports for the contractor
and for each subcontract shall be submitted.
VII. SUBLETTING OR ASSIGNING THE CONTRACT
1. The contractor shall perform with its own organization
contract work amounting to not less than 30 percent (or a greater
percentage if specified elsewhere in the contract) of the total
original contract price, exduding any specialty items designated by
the State. Specialty items may be performed by subcontract and
the amount of any such specialty items performed may be
deducted from the total original contract price before computing
the amount of work. required to be performed by the contractor's
own organization (23 CFR 635).
a. "Its own organization" shall be construed to include only
workers employed and paid directly by the prime contractor and
equipment owned or rented by the prime contractor, with or
without operators. Such term does not include employees or
equipment of a subcontractor, assignee. or agent of the prime
contractor.
b. "Specialty Items" shall be construed to be limited to
Exhibit I - Page 6 of 9
REQUIRED BY 23 CFR 633.102
work that requires highly specialized knowledge, abilities, or
equipment not ordinarily available in the type of contracting
organizations qualified and expected to bid on the contract as a
whole and in general are to be limited to minor components of the
overall contract.
2. The contract amount upon which the requirements set forth
in paragraph 1 of Section VII is computed includes the cost of
material and manufactured products which are to be purchased or
produced by the contractor under the contract provisions.
3. The contractor shall furnish (a) a competent superintendent
or supervisor who is employed by the firm, has full authority to
direct performance of the work in accordance with the contract
requirements, and is in charge of all construction operations
(regardless of who performs the work) and (b) such other of its
own organizational resources (supervision, management, and
engineering services) as the SHA contracting officer determines is
necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or
otherwise disposed of except with the written consent of the SHA
contracting officer, or authorized representative, and such consent
when given shall not be construed to relieve the contractor of any
responsibility for the fulfillment of the contract. Written consent
will be given only after the SHA has assured that each subcontract
is evidenced in writing and that it contains all pertinent provisions
and requirements of the prime contract.
VIII. SAFETY: ACCIDENT PREVENTION
1. In the performance of this contract the contractor shall
comply with all applicable Federal, State, and locallawsgoveming
safety. health. and sanitation (23 CFR 635). The contractor shall
provide all safeguards, safety devices and protective equipment
and take any other needed actions as it determines, or as the SHA
contracting officer may determine, to be reasonably necessary to
protect the life and health of employees on the job and the safety
of the public and to protect property in connection with the
performance of the work covered by the contract.
2. It is a condition of this contract, and shall be made a
condition of each subcontract, which the contractor enters into
pursuant to this contract, that the contractor and any subcontractor
shall not permit any employee, in performance of the contract, to
work in surroundings or under conditions which are unsanitary,
hazardous or dangerous to hislher health or safety, as determined
under construction safety and health standards (29 CFR 1926)
promulgated by the Secretary of Labor, in accordance with
Section 107 of the Contract Work Hours and Safety Standards Act
(40 U.S.C. 333).
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract
that the Secretary of Labor or authorized representative thereof,
shall have right of entry to any site of contract performance to
inspect or investigate the matter of compliance with the construc-
tion safety and health standards and to carry out the duties of the
Secretary under Section 107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 333).
IX. FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
In order to assure high quality and durable construction in
conformity with approved plans and specifications and a high
degree of reliability on statements and representations made by
engineers, contractors, suppliers, and workers on Federal-aid
highway projects, it is essential that all persons concerned with the
project perform their functions as carefully, thoroughly, and
honestly as possible. Willful falsification, distortion, or misrepre-
sentation with respect to any facts related to the project is a
violation of Federal law. To prevent any misunderstanding
regarding the seriousness of these and similar acts, the following
Exhibit I
notice shall be posted on each Federal-aid highway project (23
CFR 635) in one or more places where it is readily available to all
persons concerned with the project:
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL-AID
HIGHWAY PROJECTS
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United
States, orof any State or Territory, or whoever, whether a person,
association, firm, or corporation, knowingly makes any false
statement, false representation, or false reporl. as to the character,
quality, quantity, or cost of the material used or to be used, or the
quantity or quality of the work performed or to be performed, or the
cost thereof in connection with the submission of plans, maps,
specifications, contracts, or costs of construction on any highway
or related project submitted for approval to the Secretary of
Transportation; or
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the
character, quality, quantity, or cost of any work performed or to be
performed, or materials furnished or to be furnished, in connection
with the construction of any highway or related project approved
by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or
report submitted pursuant to provisions of the Federal-aid Roads
Act approved July 1, 1916, (39 Stat. 355), as amended and
supplemented;
Shall be fined not more that $10,000 or imprisoned not more
than 5 years or both. ..
X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT
(Applicable to all Federal-aid construction contracts and to all
related subcontracts of $100,000 or more.)
By submission of this bid or the execution of this contract, or
subcontract, as appropriate, the bidder, Federal-aid construction
contractor, or subcontractor, as appropriate, will be deemed to
have stipulated as follows:
1. That any facility that is or will be utilized in the performance of
this contract, unless such contract is exempt under the Clean Air
Act, as amended (42 U.S.C. 1857 ~~., as amended byPub.L.
91-604), and under the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1251 ~~.. as amended by Pub.L. 92-500).
Executive Order 11738, and regulations in implementation thereof
(40 CFR 15) is not listed, on the date of contract award, on the
U.S. Environmental Protection Agency (EPA) List of Violating
Facilities pursuant to 40 CFR 15.20.
2. That the firm agrees to comply and remain in compliance with
all the requirements of Section 114 of the Clean Air Act and
Section 308 of the Federal Water Pollution Control Act and all
regulations and guidelines listed thereunder.
3. That the firm shall promptly notify the SHA of the receipt of any
communication from the Director, Office of Federal Activities,
EPA, indicating that a facility that is or will be utilized for the
contract is under consideration to be listed on the EP A List of
Violating Facilities.
4. That the firm agrees to indude or cause to be included the
requirements of paragraph 1 through 4 of this Section X in every
nonexempt subcontract, and further agrees to take such action as
the government may direct as a means of enforcing such
Exhibit I - Page 7 of 9
REQUIRED BY 23 CFR 633.102
,
.
requirements.
XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY AND VOLUNTARY EXCLUSION
1. Instructions for Certification a Primary Covered
Transactions:
(Applicable to all Federal-aid contracls - 49 CFR 29)
a. By signing and submitting this proposal, the prospective
primary participant is providing the certification set out below.
b. The inability of a person to provide the certification set out
below will not necessarily result in denial of participation in this
covered transaction. The prospective participant shall submit an
explanation of why it cannot provide the certification set out below.
The certification or explanation will be considered in connection
with the department or agency's determination whether to enter
into this transaction. However, failure of the prospective primary
participant to furnish a certification or an explanation shall
disqualify such a person from participation in this transaction.
c. The certification in this clause is a material representation
of fact upon which reliance was placed when the department or
agency determined to enter into this transaction. If it is later
determined that the prospective primary participant knowingly
rendered an erroneous certification. in addition to other remedies
available to the Federal Government, the department or agency
may terminate this transaction for cause of default.
d. The prospective primary participant shall provide immedi-
ate written notice to the department or agency to whom this
proposal is submitted if any time the prospective primary partici-
pant learns that its certification was erroneous when submitted or
has become erroneous by reason of changed circumstances.
e. The terms "covered transaction," "debarred."
"suspended," "ineligible." "lower tier covered transaction."
"participant," "person," "primary covered transaction," "principal,"
"proposal," and "voluntarily excluded," as used in this clause. have
the meanings set out in the Definitions and Coverage sections of
rules implementing Executive Order 12549. You may contact the
department or agency to which this proposal is submitted for
assistance in obtaining a copy of those regulations.
f. The prospective primary participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered into. it shall not knowingly enter into any lower tier covered
transaction with a person who is debarred. suspended. declared
ineligible. or voluntarily excluded from participation in this covered
transaction. unless authorized by the department or agency
entering into this transaction.
g. The prospective primary participant further agrees by
submitting this proposal that it will include the clause titled
"Certification Regarding Debarment, Suspension. Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transaction." provided by
the department or agency entering into this covered transaction,
without modification. in all lower tier covered transactions and in
all solicitations for lower tier covered transactions.
h. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred. suspended. ineligible. or volun-
tarily excluded from the covered transaction, unless it knows that
the certification is erroneous. A participant may decide the
method and frequency by which it determines the eligibility of its
principals. Each participant may, but is not required to. check. the
non-procurement portion of the "Lists of Parties Excluded From
Federal Procurement or Non-procurement Programs" (Non-
procurement List) which is compiled by the General Services
Exhibit I
Administration.
I. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in
good faith the certification required by this clause. The knowledge
and information of participant is not required to exceed that which
is normally possessed by a prudent person in the ordinary course
of business dealings.
j. Except for transactions authorized under paragraph f of
these instructions. if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred. ineligible. or voluntarily
excluded from participation in this transaction. in addition to other
remedies available to the Federal Government, the department or
agency may terminate this transaction for cause or default.
Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion-Primary Covered
Transactions
1. The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
a. Are not presently debarred, suspended. proposed for
debarment, declared ineligible, or voluntarily excluded from
covered transactions by any Federal department or agency;
b. Have not within a 3.year period preceding this proposal
been convicted of or had a civil judgment rendered against them
for commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain. or performing a pUblic (Federal,
State or local) transaction or contract under a public transaction;
violation of Federal or State antitrust statutes or commission of
embezzlement, theft, forgery, bribery, falsification ordestruction of
records, making false statements, or receiving stolen property;
c. Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or local)
with commission of any of the offenses enumerated in paragraph
1b of this certification; and
d. Have not within a 3-year period preceding this
application/proposal had one or more public transactions (Federal,
State or local) terminated for cause or default.
2. Where the prospective primary participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
2. Instructions for Certification a Lower Tier Covered
Transactions:
(Applicable to all subcontracts, purchase orders and other lower
tier transactions of $25,000 or more - 49 CFR 29)
a. By signing and submitting this proposal. the prospective
lower tier is providing the certification set out below.
b. The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction was
entered into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification. in
addition to other remedies available to the Federal Government,
the department, or agency with which this transaction originated
may pursue available remedies, including suspension and/or
Exhibit I - Page 8 of 9
REQUIRED BY 23 CFR 633.102
.
.
debarment.
c. The prospective lower tier participant shall provide
immediate written notice to the person to which this proposal is
submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of changed
circumstances.
d. The terms "covered transaction," "debarred,"
"suspended," "ineligible," "primary covered transaction,"
"participant," "person," "principal," "proposal," and "voluntarily
excluded," as used in this clause, have the meanings set out in
the Definitions and Coverage sections of rules implementing
Executive Order 12549. You may contact the person to which this
proposal is submitted for assistance in obtaining a copy of those
regulations.
e. The prospective lower tier participant agrees by
submitting this proposal that, should the proposed covered
transaction be entered into, it shall not knowingly enter into any
lower tier covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from
participation in this covered transaction, unless authorized by the
department or agency with which this transaction originated.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
"Certification Regarding Debarment, Suspension,lneligibility and
Voluntary Exclusion-Lower Tier Covered Transaction," without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or volun-
tarily excluded from the covered transaction, unless it knows that
the certification is erroneous. A participant may decide the
method and frequency by which it determines the eligibility of its
principals. Each participant may, but is not required to, check the
Non-procurement List.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in
good faith the certification required by this clause. The knowledge
and information of participant is not required to exceed that which
is normally possessed by a prudent person in the ordinary course
of business dealings.
I. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to other
remedies available to the Federal Government, the department or
agency with which this transaction originated may pursue
available remedies, including suspension and/or debarment.
Certification Regarding Debarment. Suspension,
Ineligibility and Voluntary Exclusion-Lower Tier Covered
Transactions:
1. The prospective lower tier participant certifies, by submission
of this proposal. that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from participation in this
transaction by any Federal department or agency.
2. Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such prospec-
tive participant shall attach an explanation to this proposal.
Exhibit I
XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS
OR LOBBYING
(Applicable to all Federal-aid construction contracts and to all
relaled subcontracts which exceed $100,000 - 49 CFR 20)
1. The prospective participant certifies, by signing and submit-
ting this bid or proposal, to the best of his or her knowfedge and
belief, that:
a. No Federal appropriated funds have been paid orwil1 be
paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of
any Federal agency, a Member of Congress, an officer or employ-
ee of Congress, or an employee of a Member of Congress in
connection with the awarding of any Federal contract, the making
of any Federal grant, the making of any Federal loan, the entering
into of any cooperative agreement, and the extension, continua-
tion, renewal, amendment, or modification of any Federal contract,
grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or attempt-
ing to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this
Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form-LLL,
"Disclosure Form to Report Lobbying,ft in accordance with its
instructions.
2. This certification is a material representation of fact upon
which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by 31 U.S.C.
1352. Ally person who fails to file the required certification shall
be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
3. The prospective participant also agrees by submitting his or
her bid or proposal that he or she shall require that the language
of this certification be included in all lower tier subcontracts, which
exceed $100,000 and that all such recipients shall certify and
disclose accordingly.
Exhibit I - Page 9 of 9
REQUIRED BY 23 CFR 633.102
Exhibit J
.
FEDERAL REOUlREMENTS
Federal laws and regulations that may be applicable to the Work include:
A. The "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local
Governments (Common Rule), at 49 Code of Federal Regulations, Part 18, except to the extentthat other applicable
federal requirements (including the provisions of 23 CFR Parts 172 or 633 or 635) are more specific than
provisions of Part 18 and therefore supersede such Part 18 provisions. The requirements of 49 CFR 18 include,
without limitation:
1. the Local Agency/Contractor shall follow applicable procurement procedures, as required by section l8.36(d);
2. the Local Agency/Contractor shall request and obtain prior CDOT approval of changes to any subcontracts in the
manner, and to the extent required by, applicable provisions of section 18.30;
3. the Local Agency/Contractor shall comply with section 18.37 concerning any sub-grants;
4. to expedite any COOT approval, the Local Agency/Contractor's attorney, or other authorized representative, shall
also submit a letter to COOT certifYing Local Agency/Contractor compliance with section 18.30 change order
procedures, and with 18.36(d) procurement procedures, and with 18.37 sub-grant procedures, as applicable;
5. the Local Agency/Contractor shall incorporate the specific contract provisions described in 18.36(i) (which are also
deemed incorporated herein) into any subcontract(s) for such services as terms and conditions of those subcontracts.
B. Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by
Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter
60) (All construction contracts awarded in excess of $10,000 by grantees and their contractors or sub-grantees).
C. The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29
CFR Part 3) (All contracts and sub-grants for construction or repair).
D. The Davis-Bacon Act (40 U.S.C. 276a to a-7) as supplemented by Department of Labor regulations (29 CFR
Part 5) (Construction contracts in excess of $2,000 awarded by grantees and subgrantees when required by Federal
grant program legislation. This act requires that all laborers and mechanics employed by contractors or sub-contractors
to work on construction projects fmanced by federal assistance must be paid wages not less than those established for
the locality of the project by the Secretary of Labor).
E. Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as
supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by grantees and
sub-grantees in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of
mechanics or laborers).
F. Standards, orders, or requirements issued under section 306 of the Clear Air Act (42 U.S.C. 1 857(h), section
508 of the Clean Water Act (33 U.S.c. 1368). Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR Part 15) (contracts, subcontracts, and sub-grants of amounts in excess of $100,000).
G. Mandatory standards and policies relating to energy efficiency which are contained in the state energy
conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163).
H. Office of Management and Budget Circulars A-87, A-21 or A-122, and A-102 or A-I 10, whichever is
applicable.
1. The Hatch Act (5 USC 1501-1508) and Public Law 95-454 Section 4728. These statutes state that federal
Exhibit J - Page I of 3
Exhibit J
..
funds cannot be used for partisan political purposes of any kind by any person or organization involved in the
administration of federally-assisted programs.
J. 42 USC 6101 et seq. 42 USC 2000d, 29 USC 794, and implementing regulation, 45 C.F.R. Part 80 et. seq..
These acts require that no person shall, on the grounds of race, color, national origin, age, or handicap, be excluded
from participation in or be subjected to discrimination in any program or activity funded, in whole or part, by federal
funds;
K. The Americans with Disabilities Act (Public Law 101-336; 42 USC 12101, 12102, 12111-12117, 12131-
12134,12141-12150,12161-12165,12181-12189,12201-12213 47 USC 225 and 47 USC 611.
L. The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91-
646, as amended and Public Law 100-17, 101 Stat. 246-256). (If the contractor is acquiring real property and
displacing households or businesses in the performance of this contract.)
M. The Drug-Free Workplace Act (Public Law 100-690 Title V, subtitle D, 41 USC 701 et seq.).
N. The Age Discrimination Act of 1975, 42 u.s.e. Sections 6101 et. seq. and its implementing regulation, 45
C.F.R. Part 91; Section 504 of the Rehabilitation Act of 1973, 29 U.S.e. 794, as amended, and implementing
regulation 45 e.F.R. Part 84.
O. 23 C.F.R. Part 172, concerning "Administration of Engineering and Design Related Contracts".
P. 23 e.F.R Part 633, concerning "Required Contract Provisions for Federal-Aid Construction Contracts".
Q. 23 C.F.R. Part 635, concerning "Construction and Maintenance Provisions".
R. Title VI of the Civil Rights Act of 1964 and 162(a) of the Federal Aid Highway Act of 1973. The
requirements for which are shown in the Nondiscrimination Provisions, which are attached hereto and made a part
hereof.
S. Nondiscrimination Provisions:
In compliance with Title VI of the Civil Rights Act of 1964 and with Section 1 62(a) of the Federal Aid Highway Act of
1973. the Contractor, for itself, its assignees and successors in interest, agree as follows:
1. Comoliance with Regulations. The Contractor will comply with the Regulations of the Department of
Transportation relative to nondiscrimination in Federally assisted programs of the Department of Transportation (Title
49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated
by reference and made a part of this contract.
2. Nondiscrimination. The Contractor, with regard to the work performed by it after award and prior to
completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical handicap or
national origin in the selection and retention of Subcontractors, including procurement of materials and leases of
equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section
21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix C of
the Regulations.
Exhibit J - Page 2 of 3
Exhibit J
.
3. Solicitations for Subcontracts. Including Procurement of Materials and Equipment. In all solicitations
either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract,
including procurement of materials or equipment, each potential Subcontractor or supplier shall be notified by the
Contractor of the Contractor's obligations under this contract and the Regulations relative to nondiscrimination on the
ground of race, color, sex, mental or physical handicap or national origin.
4. Information and Reports. The Contractor will provide all information and reports required by the
Regulations, or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts,
other sources of information and its facilities as may be determined by the State or the FHW A to be pertinent to
ascertain compliance with such Regulations, orders and instructions. Where any information required oftbe Contractor
is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify
to the State, or the FHW A as appropriate and shall set forth what efforts have been made to obtain the information.
5. Sanctions for Noncompliance. In the event of the Contractor's noncompliance with the
nondiscrimination provisions of this contract, the State shall impose such contract sanctions as it or the FHW A may
determine to be appropriate, including, but not limited to:
a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or;
b. Cancellation, termination or suspension of the contract, in whole or in part.
6. Incorporation of Provisions. The Contractor will include the provisions of paragraphs A through F in
every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations,
orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or
procurement as the State or the FHW A may direct as a means of enforcing such provisions including sanctions for
noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with,
litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into
such litigation to protect the interest of the State and in addition, the Contractor may request the FHW A to enter into
such litigation to protect the interests of the United States.
Exhibit J - Page 3 of 3
Vie
MEMORANDUM
TO: Mayor and City Council
FROM: Kathryn Koch, City Clerk
DATE: September 14, 2007
RE: Resolution #79, 2007 - Designating the Aspen Times as the City Legal
Publication
REQUEST OF COUNCIL: Staffrequests Council adopt Resolution # 2007-
designating the Aspen Times as the legal publication for the City of Aspen.
BACKGROUND: The Aspen City Charter requires all ordinances be published in full
after first reading noting the time and place for the public hearing. The land use code
also requires various public notices.
Since at least the 1960's, the City of Aspen's legal notices have been published in the
Aspen Times. The standard for legal publications is that a newspaper has a second class
mailing permit. In order to have a second class mailing permit, the publication has to
demonstrate to the U. S. Postal Service that they have at least 50% paid subscriber base.
The publisher of the Aspen Times sent a letter stating "The Aspen Times is no longer
pursuing paid publication status for the Aspen Times Weekly with the United States Post
Office and are no longer using a second class mailing permit". (See attached letter from
Jenna Weatherred, publisher.)
DISCUSSION: All required legal notices are currently published in the Aspen Times
Weekly. The city spends well over the amount required to send this service out to bid.
To date there has been no alternative as the Aspen Times Weekly was the only paper in
Aspen with a paid circulation. With the advent of free newspapers and newspaper on
line, there are no longer newspapers in Aspen with a paid circulation.
According to the U. S. Postmaster in Glenwood Springs, the only newspapers that would
qualify are the Snowmass Sun or the Rifle Telegram. I feel it would be a disservice to
Aspen citizens to have legal notices published in either of those publications. The Aspen
Times Weekly has a location within the paper for all the legal notices at this end of the
valley.
Both John Worcester and Jim True recommend Council adopt a resolution designating
the Aspen Times Weekly as the site of the city's legal notices as an interim measure until
this service can go out to bid.
FINANCIAL/BUDGET IMPACTS: There is a line item in the city clerk's and the
community development department's budgets for legal notices. This will not impact the
budget. Putting this out to bid may reduce the costs slightly.
ENVIRONMENTAL IMPACTS: This will not change the way business is currently
being done so there should be no negative or positive impacts on the environment. The
most positive environmental impact would be not to publish ordinances in full; however,
that is a Charter requirement and requires voter approval to do so. We took that Charter
Amendment to the voters in November 2002 and it was defeated 1139 to 811.
RECOMMENDED ACTION: Staff recommends adoption of Resolution #79,2007
MOTION: By adopting the consent calendar and Resolution #79,2007, Council will be
designating the Aspen Times Weekly the site for the City of Aspen's legal notices until
such time as staff can go through the approved bid process.
CITY MANAGER'S COMMENTS:
Attachments:
Resolution #79, 2007
Letter from the Aspen Times
11I_-
September 6, 2007
Kathryn Koch
City Clerk
The City of Aspen
130 South Galena Street
Aspen, CO 81611
Dear Kathryn:
This letler is to inform you that The Aspen Times is no longer pursuing paid publication
status fur the Aspen Tunes Weekly with the United States Post Office and are no longer
using a second class mailing penniL
The Aspen TIlDeS Weekly continues to carry a substantial paid component, with
subscribers Ioc.aIrrl all over the country. We now also offer free borne delivery to local
residents and place an average of9000 papers in racks througbout the wIIey each. week.
The Aspen Times Weekly will continue to pursue high standards of journalism, the
articles of which will establish a definitive record of current events, for use by future
scholars. This will allow the Aspen Times Weekly to continue to act as Aspen's
Newspaper of Record as it has since 1881.
If you have any questions or concerns regarding this change, please do not hesitate to call
me at 429-9120.
Publisher
Cc: John Worcester, City Attorney \/
CITY ATrunnEV'S OFFICE
SEP 12 2001
RESOLUTION #79
(Series of 2007)
A RESOLUTION OF THE ASPEN CITY COUNCIL DESIGNATING THE
ASPEN TIMES WEEKLY AS THE SITE FOR THE LEGAL NOTICES FOR
THE CITY OF ASPEN
WHEREAS, there is a Charter requirement to publish ordinances adopted
by the City of Aspen and requirements within the City of Aspen land use code to
publish land use cases, and
WHEREAS, the City of Aspen has been publishing legal notices in the
Aspen Times Weekly for somewhere between 40 and 125 years, and
WHEREAS, City Council directs staff to conduct the required bid process
before determining a longer term solution.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby designates the Aspen
Times Weekly as the legal newspaper for the purpose of publication of all legal
notices required to be published pursuant to the Charter of the City of Aspen or
any provision of the Aspen Municipal Code.
Dated:
Michael C. Ireland, Mayor
I, Kathryn S. Koch, 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 September 24, 2007.
Kathryn S. Koch, City Clerk
VI.f
MEMORANDUM
TO:
Mayor and City Council
FROM:
Kathryn Koch, City Clerk
DATE:
September 13,2007
RE:
Board Appointments
By adopting the consent calendar, Council is making the following
appointments:
Planning & Zoning - Jim DeFrancia
Dina Bloom
Stan Gibbs
Cliff Weiss
Mike Wampler - alternate
Historic Preservation - Sarah Broughton
Jay Matlin
Ann Mullins
Nora Berko, Alternate
Wheeler Board of Directors - Cathy Markle
Barbara Conviser
Sarah Schultz, High School rep
Open Space & Trails Board - Philip Jeffreys, alternate
Charlie Eckhart
Vila.
MEMORANDUM
TO:
Mayor Ireland and Aspen City Council
DATE OF MEMO:
Sara Adams, Preservation Planner~
Chris Bendon, Community Development Director r1JAf;yJ
September 12, 2007
FROM:
.
THRU:
MEETING DATE:
September 24, 2007
RE:
208 East Hallam Street, Establishment of Five (5) Transferable
Development Rights, First Reading of Ordinance #'.ih-Series of
2007 (Parcel 2737-073-14-003) Second Reading is scheduled for
November 26, 2007.
REQUEST OF COUNCIL: The applicant requests City Council approve the establishment of
five 250 square feet Transferable Development Right certificates (TDRs).
BACKGROUND:
. Lot History: The subject property is a 3,888
square foot lot that is located adjacent to the Red
Brick Center for the Arts and overlooks the
public trail that leads down to the Post Office. A
designated barn occupies the lot, and it has
undergone extensive rehabilitation to improve
the structural system and for livability added
shed roof dormers.
. Previous actions:
o Historic Preservation Commission Approvals
. In 2002, HPC approved a large addition to the designated barn. I Fortunately,
the addition was never pursued and the barn remains the only structure on the
property, as illustrated in the map above.
. HPC recently approved a 120 square foot floor area bonus for the conversion of
the existing garage to living space, with the condition that the property records a
I HPC Resolutions 24 Series of2002 (Conceptual Approval) and 28 of2002 (Final Approval) granted a
Development Order to the subject parcel that included a large addition to the historic barn. The vested rights expired
on this Development Order in 2005.
Revised 9/17/2007
G:\city\Saraa\frost barn far _tdrs\frostBarnfirstreading.doc
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deed restriction forfeiting eligibility for the remaining 380 square feet of the
floor area bonus2 The approval of the Bonus is contingent on the establishment
of 5 TDRs; as HPC found that the overall project, including the severing of
available floor area, met the following criteria for granting a floor area Bonus
listed in Municipal Code Section 26.415.l10.C:
b.) The historic building is the key element of the property and the
addition is incorporated in a manner that maintains the visual integrity of
the historic building
g.) The project retains a historic outbuilding
h.) Notable historic site and landscape features are retained
DISCUSSION:
. The purpose of a TDR is to encourage the preservation of Historic Landmarks within the
City of Aspen by permitting those property owners to sever and convey, as a separate
development right, undeveloped Floor Area to be developed on a different and non-
historic property within the City of Aspen. Each TDR comprises 250 square feet of Floor
Area. The TDR program enables standard market forces, and the demand for floor area
and increased unit sizes in specific zone districts, to accomplish a community goal of
preserving Aspen's heritage as reflected in its built environment.3 Funds that are gained
from the sale ofTDRs may be invested back into the landmark.
. The applicant requests approval from City Council to establish five (5) 250 square foot
TDR certificates, which equals a total of 1,250 square feet of unbuilt floor area to be
severed from the property. The final remaining unbuilt floor area on the property after
the severance of 1,250 square feet of floor area will be 17 square feet.
. The review criteria found in Exhibit A analyze the existing built development on the
property against the maximum allowable floor area to determine the amount of unbuilt
development that can be turned into TDRs. Development that already received approval
is also analyzed as part of the review process for establishing TDRs.4 The property must
be a local landmark, i.e. listed on Aspen's Inventory of Historic Sites and Structures, to
establish TDRs.
2 HPC Resolution 33 Series of2007 approves a 120 square foot floor area bonus with conditions. See Exhibit B.
Minutes are attached as Exhibit C.
3 The TDR program is one of the economic benefits offered to historic landmark properties. See Exhibit D for a
summary of other benefits currently offered through Aspen's historic preservation program.
4 See Exhibit A, criterion d.
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Page 2 of3
Floor Area Analvsis for 208 East Hallam:
Total allowable floor area for 3,888 square
foot lot in R -6 zone district (2,648 square
feet) + Add floor area bonus (120 square
feet) to property for garage to living space
conversions
Existing floor area on 208 East Hallam
Available unbuilt floor area
Sever 5 TDR certificates at 250 square feet
each (1,250 square feet total)
Subtract floor area for the garage to living
space conversion (301 square feet)
(2,648 + 120) =
2,768 square feet of allowable floor area
on the subject property
1,200 square feet existing built floor area
(2,768 -1,200) = 1,568 square feet un built
floor area
(1,568 - 1,250) = 318 square feet
un built floor area on the site after severing
TDRs
( 318 - 301) = 17 square feet
unbuilt floor area on tbe site
RECOMMENDED ACTION: "In reviewing the proposal, Staff finds that the project meets the
applicable review criteria to Establish five Transferable Development Rights and finds that TDRs
are a good tool for preserving a historic resource by reducing development pressure. Staff
recommends approval of the five TDR certificates."
PROPOSED MOTION: "I move to approve Ordinance #
Reading, and schedule Second Reading for November 26, 2007"
CITY MANAGER COMMENTS:
Series of 2007 upon First
A TT ACHMENTS:
A - Review Criteria.
B - HPC Resolution #33, Series of 2007.
C - HPC Minutesfor July 11, 2007 meeting approving Resolution #33 Series of2007.
D - Summary of Aspen Historic Preservation Benefits.
E - Application.
5 Because the first 250 square feet of a garage is exempt from the allowable floor area calculation, converting a
garage to living space contributes to the total floor area of the residence. HPC granted 120 square feet of floor area
on the condition that the property would sever five TDRs and the property would forgo the remaining 380 square
feet of the 500 square foot FAR Bonus through a deed restriction (Resolution #33, Series of2007, Exhibit B).
Revised 9/17/2007
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Page 3 of3
ORDINANCE NO. 11-
(SERIES OF 2007)
AN ORDINANCE OF THE ASPEN CITY COUNCIL ESTABLISHING FIVE (5)
250 SQUARE FEET OF FLOOR AREA HISTORIC TRANSERABLE
DEVELOPMENT RIGHT CERTIFICATES FOR THE SENDING SITE OF 208
EAST HALLAM STREET, LOTS D AND E, BLOCK 71, CITY AND TOWNSITE
OF ASPEN, PITKIN COUNTY, COLORADO
PARCEL NO. 2737-073-14-003.
WHEREAS, the Community Development Department received an application
from The Frost Barn, LLC c/o David A. Belford, 2950 E. Broad Street, Columbus, OH
(hereinafter "the Applicant"), represented by Mitch Haas of Haas Land Planning, LLC,
requesting the establishment of five (5) Historic Transferable Development Right
Certificates for the property located at 208 East Hallam Street, Lot D and E, Block 71,
City and Townsite of Aspen, Colorado; and,
WHEREAS, the subject property is zoned R-6 (Medium Density Residential);
and,
WHEREAS, 208 East Hallam Street, Lot D and E, Block 71, City and Townsite
of Aspen, Colorado is listed on the Aspen Inventory of Historic Sites and Structures; and,
WHEREAS, in order to establish a Historic Transferable Development Right
Certificate, the applicant shall meet the following requirements of Aspen Municipal
Code: Section 26.535.070 which is as follows:
26.535.070. Review Criteria for the Establishment of Historic Transferable
Develoument Ril!ht.
A Historic TDR Certificate for 250 square feet of Floor Area may be established by the
Mayor of the City of Aspen if the City Council, pursuant to adoption of an ordinance,
finding 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. Properties on which such development is a conditional use shall not
be eligible.
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.
c) It is demonstrated that the establishment of TDR Certificates will not create
a nonconformity. In cases where nonconformity already exists, the action
shall not increase the specific nonconformity
Ordinance No. , Series 2007
Revised 9/17/2007
G:lcitylSaraalfrost barn far _tdrs\208ehallam_ordinance.doc
Page 1 of4
d) The analysis of unbuilt development right shall not only include the actual
built development, any approved development order the allowable
development right prescribed by zoning, and shall not include the potential
of the Sending Site to gain Floor Area bonuses, exemptions, or similar
potential development incentives
e) 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.
f) The proposed deed restriction permanently restricts the development 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. The deed restriction shall not stipulate an
absolute Floor Area, but shall stipulate a square footage reduction from the
allowable Floor Area, 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 authorized by the City of Aspen Land Use Code, as
may be amendedfrom time to time. Theform of the deed restriction shall be
acceptable to the City Attorney.
g) 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 Pitkin County
Clerk and Recorder's Office.
h) 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
requiredfor the confirmation of built Floor Area.
WHEREAS, upon review of the application, and the applicable code standards,
the Community Development Department recommended approval, with conditions, of the
proposed establishment of five (5) Historic Transferable Development Rights; and,
WHEREAS, on September 24th, 2007 the Aspen City Council approved Ordinance
No. xx, Series 2007, on First Reading by a vote, approving with conditions the
establishment of five (5) Historic Transferable Development Right Certificates for the
property located at 208 East Hallam Street, Lot D and E, Block 71, City and Townsite of
Aspen, Colorado; and,
WHEREAS, during a duly noticed public hearing on November 26th, 2007, the
Aspen City Council approved Ordinance No. _, Series 2007, by a vote,
approving with conditions the establishment of five (5) Historic Transferable
Development Right Certificates for the property located at 208 East Hallam Street, Lot D
and E, Block 71, City and Townsite of Aspen, Colorado; and,
WHEREAS, the Aspen City Council has reviewed and considered the proposal
under the applicable provisions of the Municipal Code as identified herein, has reviewed
Ordinance No. _' Series 2007
Revised 9/17/2007
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Page 2 of4
and considered the recommendation of the Community Development Director, and has
taken and considered public comment at a public hearing; and,
WHEREAS, the City Council finds that the request to establish five (5) Historic
Transferable Development Rights meets the intent of the Aspen Historic Preservation
Program and is consistent with the Aspen Area Community Plan; 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 RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN AS FOLLOWS:
Section 1
The City Council finds that the application meets all required standards and eligibility as
stated in Section 26.535.030 and Section 26.535.070, and applicant's submission is
complete and sufficient to afford review and evaluation for approval; and
Section 2
The City Council does hereby establish five (5) Historic Transferable Development
Rights of 250 square feet of Floor Area each to the sending site located at 208 East
Hallam Street, Lot D and E, Block 71, City and Townsite of Aspen, Colorado with the
following conditions:
I. Upon satisfaction of all requirements, the city and the applicant shall establish
a date on which the respective Historic TDR Certificates shall be validated
and issued by the City and a deed restriction on the property shall be accepted
by the City and filed with the Pitkin County Clerk and Recorder.
2. On the mutually agreed upon date, the Mayor of the City of Aspen shall
execute and deliver the applicable number of Historic TDR Certificates to the
property owner and the property owner shall execute and deliver a deed
restriction lessening the available development right of the Sending Site (208
East Hallam Street, Lot D and E, Block 71, City and Townsite of Aspen) by
1,250 square feet together with the appropriate fee for recording the deed
restriction with the Pitkin County Clerk and Recorder's Office.
Section 3:
This Ordinance shall not effect 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 construed and concluded under such
prior ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the
validity of the remaining portions thereof.
Ordinance No. , Series 2007
Revised 9/1712007
G:lcitylSaraalfrost barn far_tdrs\208ehallam _ ordinance. doc
Page3 of 4
Section 5:
A public hearing on the ordinance will be held on the 26th day of November, 2007, in the
City Council Chambers, Aspen City Hall, Aspen, Colorado.
Section 7:
This ordinance shall become effective thirty (30) days following final passage.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 24th day of September, 2007.
Michael C. Ireland, Mayor
Attest:
Kathryn S. Koch, City Clerk
FINALLY, adopted, passed and approved this 26th day of November, 2007.
Michael C. Ireland, Mayor
Attest:
Kathryn S. Koch, City Clerk
Approved as to form:
John P. Worcester, City Attorney
Ordinance No. _' Series 2007
Revised 9/17/2007
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Page 4 of4
Exhibit A
Section 26.535.070 REVIEW CRITERIA FOR ESTABLISHMENT OF HISTORIC TRANSFERABLE
DEVELOPMENT RIGHT.
A Historic TDR Certificate may be established by the Mayor of the City of Aspen 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.
Properties on which such development is a conditional use shall not be eligible.
Staff Finding:
The proposed 3,888 square foot sending site is located within the R-6 zone district, which allows
residential single-family use. The sending site is a designated Historic Landmark, listed on the
Aspen Inventory of Historic Landmark Sites and Structures.
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 Finding:
The subject property has a total allowable FAR of 2,648 square feet for a 3,888 square foot
property in the R-6 zone district. A total of 1,448 square feet of floor area remains unbuilt on the
site. The property is eligible to establish five (5) Historic TDR Certificates, worth 250 square
feet each, which amounts to severing a total of 1,250 square feet of floor area. A remainder of
198 square feet of unbuilt floor area will remain on the property.
c) It is demonstrated that the establishment of TDR Certificates will not create a
nonconformity. In cases where nonconformity already exists, the action shall not
increase the specific nonconformity.
Staff Finding:
The establishment of five TDRs will not increase or create a non-conformity.
d) The analysis of unbuilt development right shall not only include the actual built
development, any approved development order the allowable development right
prescribed by zoning, and shall not include the potential of the Sending Site to gain
Floor Area bonuses, exemptions, or similar potential development incentives.
Staff Finding: This is a two part analysis: I) actual built development, i.e. the existing
condition of the property and 2) analysis of approved development
Exhibit A
Revised 9/14/2007
G:\city\Saraa\frost barn far _ tdrs\208easthallamExhibitA.doc
Page I of3
Analvsis of actual built development:
The existing rehabilitated barn structure includes 1,200 square feet of floor area out of an
allowable floor area of 2,648 square feet. The unbuilt floor area existing on the site is 1,448
square feet. The applicant requests to sever five TDRs, a total of 1,250 square feet of floor area,
which will leave 198 square feet of unbuilt floor area on the property.
Analvsis of approved develoDment:
HPC granted 120 square feet of the floor area bonus for historic resources with the conditions
that I.) the property severs five TDRs and 2.) the property records a deed restriction forgoing
eligibility to receive the remaining 380 square feet of the 500 square foot FAR bonus. The bonus
floor area will be used to convert the existing garage to living space. This conversion does not
affect the exterior of the building, but adds to the total allowable floor area on the property.
After the severance of five TDRs and the conversion of the garage to living space, 17 square feet
of unbuilt floor area will remain on the property.
e) 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 Finding: The property will not include any development order to develop Floor Area
beyond that remaining legally connected to the property after the establishment of five TDR
certificates. The applicant proposes to forgo the remaining 380 square feet of the FAR Bonus for
historic properties, after five TDRs are severed from the property and the 120 square feet of the
bonus is applied to the garage conversion. The conversion will not involve any more Floor Area
than permissible under this standard.
f) The proposed deed restriction permanently restricts the development 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. The
deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a
square footage reduction from the allowable Floor Area, 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 authorized by the City of Aspen Land Use
Code, as may be amendedfrom time to time. Theform of the deed restriction shall
be acceptable to the City Attorney.
Staff Finding:
The applicant clearly states an understanding ofthis standard (f) in the application.
g) 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
Exhibit A
Revised 9/14/2007
G:\city\Saraa\frost barn far tdrs\208easthallamExhibitA.doc
Page 2 of3
the subject property together with the appropriate fee for recording the deed
restriction with the Pitkin County Clerk and Recorder's Office.
Staff Finding:
The application states that the requirements of section (g) are understood by the applicant.
h) 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 built Floor Area.
Staff Finding:
The application demonstrates a clear understanding of the requirements of section (h).
Exhibit A
Revised 9/14/2007
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Page 3 of3
Exhibit B
RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION (HPq
APPROVING AN APPLICATION FOR A 120 SQUARE FOOT FAR BONUS FOR THE
PROPERTY LOCATED AT ;l08 EAST HALLAM STREET, LOTS D AND E, BLOCK 71,
CITY AND TOWNSITE OF ASPEN, COLORADO
RESOLUTION NO. 33, SERIES OF 2007
PARCEL ID: 2737-073-14-003.
WHEREAS, the applicant, The Frost Barn, LLC c/o David A. Belford. 2950 E. Broad Street,
Columbus, OH represented by Mitch Haas of Haas Land Planning, LLC, has requested 120
square foot FAR Bonus for the property located at 208 East Hallam Street, Lot D and E, Block
71, City and Townsite of Aspen, Colorado.
WHEREAS, Section 26.415.070 of the Municipal Code states that "no building or structure
shall be erected, constructed, enlarged, altered, repaired, relocated or improved involving a
designated historic property or district until plans or sufficient information have been submitted
to the Community Development Director and approved in accordance with the procedures
established for their review;" and
WHEREAS, the procedure for a Minor Development Review is as follows. Staff reviews the
submittal materials and prepares a report that analyzes the project's conformance with the design
guidelines and other applicable Land Use Code Sections. This report is transmitted to the HPC
with relevant information on the proposed project and a recommendation to continue, approve,
disapprove or approve with conditions and the reasons for the recommendation. The HPC
reviews the application, the staff analysis report and the evidence presented at the hearing to
determine the project's conformance with the City of Aspen Historic Preservation Design
Guidelines. The HPC may approve, disapprove, approve with conditions, or continue the
application to obtain additional information necessary to make a decision to approve or deny; and
WHEREAS, for approval of an FAR Bonus, the HPC must review the application, a staff
analysis report and the evidence presented at a hearing to determine, per Section 26.415.IIO.C of
the Municipal Code, that:
a. The design of the project meets all applicable design guidelines; and
b. The historic building is the key element of the property and the
addition is incorporated in a manner that maintains the visual integrity of the historic
building and/or
c. The work restores the existing portion of the building to its historic appearance; and/or
d. The new construction is reflective of the proportional patterns found in the historic
building's form, materials or openings; and/or
e. The construction materials are of the highest quality; and/or
f. An appropriate transition defines the old and new portions of the building; and/or
g. The project retains a historic outbuilding; and/or
h. Notable historic site and landscape features are retained; and
RECEPTION#: 540466, 07/30/2007 E~~ibit B
11:58:31 AM, HPC ResolutiQ.Q./!;l:l. ol2QO~N
1 OF 3, R $16.00 Doc Code RE50l:U IIU
Janice K. Vos Caudill, Pitkin County, CO
Exhibit B
WHEREAS, Sara Adams, in her staff report dated July 11th, 2007, performed an analysis of the
application based on the standards, found the review standards and the "City of Aspen Historic
Preservation Design Guidelines have been met, and the criteria for an FAR Bonus is
demonstrated; and
WHEREAS, at their regular meeting on July 11,2007, the Historic Preservation Commission
considered the application, found the application for a 120 square foot FAR Bonus met the "City
of Aspen Historic Preservation Design Guidelines" and Aspen Municipal Code review criteria,
and approved the application by a vote offour to zero (4 - 0).
NOW, THEREFORE, BE IT RESOLVED:
That HPC hereby recommends approval of the application for a 120 square foot FAR Bonus for the
property located at 208 East Hallam Street, Lots D and E, Block 71, City and Townsite of Aspen,
Colorado with the following conditions:
I. HPC finds that FAR Bonus criteria b, g, and h are met in the application.
2. The property owner shall record a deed restriction with the Pitkin County Clerk and
Recorder forfeiting eligibility for the remaining 380 square feet of the FAR Bonus in
perpetuity.
3. The 120 square foot FAR Bonus is granted for the conversion ofthe existing garage into
living space and is contingent on the establishment and severance of five (5)
Transferable Development Right (TDR) Certificates, each worth 250 square feet of FAR,
from the property.
4. No exterior changes are permitted without HPC approval.
5. The development approvals granted herein shall constitute a site-specific development plan
vested for a period of three (3) years from the date of issuance of a development order.
However, any failure to abide by any of the terms and conditions attendant to this
approval shall result in the forfeiture of said vested property rights. Unless otherwise
exempted or extended, failure to properly record all plats and agreements required to be
recorded, as specified herein, within 180 days of the effective date of the development
order shall also result in the forfeiture of said vested property rights and shall render the
development order void within the meaning of Section 26.104.050 (Void permits).
Zoning that is not part of the approved site-specific development plan shall not result in
the creation of a vested property right.
No later than fourteen (14) days following final approval of all requisite reviews necessary
to obtain a development order as set forth in this Ordinance, the City Clerk shall cause to he
published in a newspaper of general circulation within the jurisdictional boundaries of the
City of Aspen, a notice advising the general public of the approval of a site specific
development plan and creation of a vested property right pursuant to this Title. Such notice
shall be substantially in the following form:
Notice is hereby given to the general public of the approval of a site specific development
plan, and the creation of a vested property right, valid for a period of three (3) years,
Exhibit B
HPC Resolution #33, of 2007
Exhibit B
pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado
Revised Statutes, pertaining to the following described property: 208 East Hallam Street.
Nothing in this approval shall exempt the development order from subsequent reviews
and approvals required by this approval of the general rules, regulations and ordinances or
the City of Aspen provided that such reviews and approvals are not inconsistent with this
approval.
The approval granted hereby shall be subject to all rights of referendum and judicial
review; the period of time permitted by law for the exercise of such rights shall not begin
to run until the date of publication of the notice of final development approval as required
under Section 26.304.070(A). The rights of referendum shall be limited as set forth in the
Colorado Constitution and the Aspen Home Rule Charter.
APPROVED BY THE COMMISSION at its regular meeting on the 11th day of July 2007.
Approved as to Form:
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Jim True, Special Counsel
Approved as to content:
HISTORIC PRESERVATION COMMISSION
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Exhibit B
HPC Resolution #33, of 2007
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 11. 2007
405 Gillespie - 707 N. Third .............................................................................................. 3
ASPEN JEWISH COMMUNITY CENTER - recommendation....................................... 4
435 W. Main - variance...................................................................................................... 5
500 W. Francis - Minor Development ............................................................................... 6
208 E. Hallam - Frost Barn FAR bonus ............................................................................. 7
Exhibit C
Exhibit C
HPC Minutes for July 11th Meeting approving Resolution #33, of 20071 of 3
I
ASPEN HISTORIC PRESERVATION COMMISSION
MINUTES OF JULY 11. 2007
Exhibit C
208 E. Hallam - Frost Barn FAR bonus
Exhibit I - affidavit
Sara said this request for 120 square foot bonus is a little different than your
normal request because the barn has already been rehabbed. The property
will voluntarily forfeit the remaining 380 square feet of the FAR bonus if the
120 square foot bonus is granted and that will be contingent on the
establishment of buy TDR certificates. The bonus is needed to convert the
garage into living space. There is 1,147 square feet of un-built FAR
remaining on the property. Staff finds that this request meets the criteria for
a bonus. By granting the 120 sq. ft. the applicant is able to establish one
more TDR. Ifthe bonus is granted they forfeit 380 square feet of the
remaining bonus and they sever the five TDR's then there will be 17 square
feet of un-built FAR on the property. Basically the way you see the barn is
the way it will remain and staff feels this is a great preservation effort.
Mitch Haas, planning consultant
The applicant has a couple options. They could convert the garage to living
space and have 1,140 square feet of FAR build out left on the property and
the potential to ask for the 500 square foot bonus.
They could convert the garage and ask for 4 TDR's without the bonus. Once
you sever the TDR's the end result would be another 147 square feet of FAR
left plus the potential of 500 square foot bonus.
Mitch said to leave nothing left on the property we need a small bonus to
make the math work so that we can sever 5 TDR's and leave only 17 square
feet. The concept is very basic. The approval would be conditional on
council approving the TDR's and the owner seyering them.
Sarah said it seems like he is using the 120 of the bonus for the building and
packaging the leftover square footage of allowable FAR into TDR's.
Brian said the crux of the matter is there is a discrepancy between 147
square feet and an additional 1,000 square feet that could be built
somewhere else.
Exhibit C
HPC Minutes for July 11th Meeting approving Resolution #33, of 20072 of 3
7
Exhibit C
ASPEN mSTORIC PRESERVATION COMMISSION
MINUTES OF JULY 11. 2007
Sarah said she understands the reason for the bonus but we are giving you
square footage for not doing anything. I somewhat feel this is contrary to
what the program is for.
Michael said there are a few assumptions here, he has a right to build up to
the maximum FAR which is wrong.
Sarah said you should build to the right you have by code. This barn is not
the historic barn and that should be taken into account.
Michael said he supports the application but not the assumptions.
Mitch said this is simply that we move the square footage or not.
Chairperson, Jeffrey Halferty opened the public hearing. There were no
public comments and the public hearing was closed.
Michael said this is about preserving the balance of the lot and he can
support the small bonus. The HPC also needs to make a finding.
Jeffrey said we have an adaptive reuse ofthis barn and there is a greater
appreciation ofthis building.
Sarah said we are not talking about this historic structure we are voting on
that we are not building or adding onto this structure. Sarah said the
variance request meets criteria B, G, H for granting the FAR bonus and that
we appreciate the owner's willingness to transfer the development right
away from this property.
MOTION: Michael moved to approve Resolution #33, second by Sarah. All
in favor, motion carried.
MOTION: Michael moved to adjourn; second by Sarah. All infavor,
motion carried.
Meeting adjourned at 7: 15 p.m.
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Kathleen 1. Strickland, Chief Deputy Clerk
Exhibit C
HPC Minutes for July 11th Meeting approving Resolution #33, of 20073 of 3
8
EXHIBIT D
Benefit Program for Properties Listed on the Aspen Inventory
of Historic Sites and Structures
It is undeniable that historic properties visually contribute to the character and
"sense of place" of a community. This fact was nationally recognized in the 1960s with
legislature protecting historic properties, which in the 1970s was reinforced with federal
tax credits and grants for rehabilitation and adaptive use. Financial benefits for historic
properties directly corresponded with an increase of National Register listings from
13,538 to 24,347 in the late 1970s. A clear message was sent to all levels of the
preservation community: monetary benefits encourage preservation and provide the
necessary means for its execution.
Aspen, similar to preservation programs throughout the country, offers incentives
to historic property owners to encourage rehabilitation and high quality design. Due in
large part to the 30+ year old historic preservation program, Aspen boasts an impressive
inventory of historic sites and structures. Among other dimensional variances and
exemptions from aspects of the Land Use Code, historic properties are eligible for the
following: rehabilitation loan; up to an additional 500 square feet of FAR added to the
property; a Historic Landmark Lot Split; and establishment of Transferable Development
Right Certificates (TDRs).
The 500 square foot FAR bonus was adopted as part of the Land Use Code in
1987 as an incentive for rehabilitation and high quality design on historic properties. A
project must fulfill specific criteria to warrant the bonus, which is not always granted or
may be granted for less than 500 square feet. Applicants often work with the Historic
Preservation Commission (HPC) to increase rehabilitation aspects and redesign new
construction to comply with Design Guidelines, which ultimately results in a better
overall project and ensures superior rehabilitation of the historic resource. Owners of
historic properties feel as entitled to the maximum floor area on their site as any other
owner and just attempting to deny their request would cause resentment and the
devaluation of designated landmarks, both of which would negatively affect the future of
the preservation program. Offering an FAR bonus to historic properties requires a give
and take attitude from a preservation perspective and a property owner perspective:
rehabilitation and high quality design for more development rights.
Two benefits are offered to historic properties that function as a release valve for
development pressure. The first is a Historic Landmark Lot Split, which relocates
development pressure to a newly created empty lot adjacent to the historic resource.
Unbuilt FAR is allocated to each lot from the fathering parcel, including an FAR bonus if
granted. The second benefit adopted to relieve development pressure is the Transferable
Development Right (TDR) certificate program. Unused FAR can be severed from the
historic property and sent to a non-historic residential location. The main difference
between a Historic Lot Split and TDRs is where the FAR lands: either next to the historic
resource or on appropriate site away from the historic resource. Each scenario alleviates
development pressure from the historic resource.
Benefits available to historic properties in Aspen are co-dependent: each piece,
whether adding FAR as an incentive for rehabilitation or removing FAR to another site,
contributes to the overall goal of preservation. Many communities struggle with an
Exhibit D
Historic Preservation Program Benefits
G:\city\Saraa\frost barn far tdrs\exhibitD.doc
Page I of2
EXHIBIT D
appropriate formula that combines preservation and compensation, and provides enough
incentive to make preserving resources viable without being detrimental to the property
in question. Aspen is close to a solution for its dynamic preservation formula. The state
of historic properties in Aspen that have utilized preservation benefits speak to the
success of available incentives and the necessity for preservation "tools" to coalesce in a
project.
Exhibit D
Historic Preservation Program Benefits
G:\city\Saraa\frost barn far_tdrs\exhibitD.doc
Page 2 of2
HAAS LAND PLANNING, LLC
May 14,2007
Mrs. Amy Guthrie
Aspen Historic Preservation Planner
130 South Galena Strcct
Aspen, CO 81611
RE: Application for an Insubstantial Amendment, Request for FAR Bonus, and
Establishment of Five (5) Historic Transferable Development Rights (fOR) for
Thc Frost Barn Property, LLC (208 E. Hallam Strect) as a Scnding Sitc
Dear Amy:
Please consider this letter to constitute a formal request for an Insubstantial
Amendment, a FAR Bonus, and cstablishment of 208 East Hallam Avenue (Lots D and
E, Block 71. plus the remaining portion of Trueman Subdivision Lot 4, City & Townsite
of Aspen; Parcelldentilication Number 2737-073-14-003) as a "Sending Site" for live (5)
Historic TOR. The proposed sending site is a 3,888 square foot lot located at 208 East
Hallam Street, and is a designated Historic Landmark. The site is zoned R-6, Mcdium
Density Residential. It is in the predominantly single-family residential West End
neighborhood but is located next to the Red Brick Center for thc Arts and backs up to the
hillside overlooking thc post officc. A vicinity map (not to scale) showing the location of
the subject property is provided bclow.
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. 201 N. MILL STREET. SUITE 108' ASPEN. COLORADO' 81611
. PHONE: (970) 925-7819 . FAX: (970) 925.7395 .
The allowable Floor Area for this R-6 zoned lot is 2,648 square feet exclusive of
potentially available bonuses. The CUlTent Floor Area of the home is 1,200 square feet,
leaving 1,448 square feet of potential for additions. The applicant plans to convel1 the
current garage to living space which, while not changing the appearance of the structure,
would add 301 square feet to the measured Floor Area; this will leave 1,147 square feet of
remaining development potential. Severing the remaining un-built Floor Area would
provide four (4) TOR but would leave another 147 square feet of Floor Area on the
property for future additions.
Rather than allow the potential for 147 square feet of additions to the historic
resource, the applicant intends to use a 120 square foot Floor Area bonus from the HPC
towards conversion of the garage space (0 living area. In exchange for the 120 square
foot Floor Area bonus, the applicant hereby volunteers the following conditions: 1) that
the property be prohibited from future requests for additional Floor Area bonuses, and 2)
that, prior to issuance of a building pennit for the garage conversion, five (5) TDR be
severed from the property, leaving only 17sf of un-built Floor Area. These conditions
et1ectively remove all remaining development potential from the property and guarantee
an outstanding preservation et10rt in perpetuity (the 17sf remaining will accommodate
any small errors that might have been made in calculation of existing Floor Area but will
not be adequate to allow for anything more than a negligible addition).
Since the applicant already plans to convert the garage to living space, it would be
too much risk to fully sever the TOR without first knowing that the conversion is
approved and enabled. As a result, the proposals made herein are strategically sequenced
to ensure that severance of five (5) TOR would maintain consistency with the
requirements of Code Section 26.535.070(D), which requires an analysis of un-built
development rights versus the allowable development right prescribed by zoning
exclusive of the potential for the Sending Site to gain Floor Area bonuses. For example,
the applicant will: 1st) obtain the 120sf FAR bonus from the HPC with the conditions
enumerated above; 2"U) sever I ,250sf of un-built Floor Area in exchange for the issuance
of five (5) TDR Certificates thereby satisfying the condition of the HPC approval and
allowing the bonus to take et1ect; 3m) complete the garage conversion to living space.
Given the above proposed conditions and explanation of sequencing, the analysis
of un-built development rights pursuant to Section 26.535.070(D) of the Code is as
follows:
(A) Allowable Floor Area exclusive ofhonuses = 2.648sf
(8) Total Existing Floor Area = (b. I.) + (b.2.) + (b.3.) = 1.199.48sf= 1,200sf
(b.l.) Terrace Level Floor Area = nosfx 8.4% = 60.48sf
(i) Total Wall Area = 1,080sf
(ii) Total Wall Area Exposed/Above Grade = 91sf
(iii) Percentage of Wall Area ExposedlPercentage of Terrace Level Square
Footage to be Counted as Floor Area = 9Isf/1,080sf= 0.084 = 8.4%
(iv) Total Square Footage of Terrace Level = nOsf
Frost Bam/208 E. Hallam Street
Page 2
(b.2.) First Story Floor Area = 51 sf + 368sf= 419sf
(i) Existing Garage Square Footage (Gross) = 352sf
(ii) Existing Garage Space Exempt from Floor Area = [250 + (102 x
50%)] = 30lsf
(iii) Total Garage Floor Area = 352sf - 301 sf= 51 sf
(iv) Remaining First Story Floor Area = 368sf
(b.3.) Sccond Story Floor Arca = nOsf
(C) Un-built Floor Arca = (A) - (B) = 1,448sf
(D) HPC Floor Area Bonus to be used/applied only after 5 TDR are severed = 120sf
(E) Applicant Severs 5 TDR worth 250sf each = 1,250sf
(F) Remaining Un-built Floor Area Exelusive ofHPC Bonus = (C) - (E) = 198sf
(G) HPC Condition Satisfied and Bonus Applied = (F) + (D) = 318sf
(H) Garage Conversion Completed, using 301sf(see b.2.ii.. above)
(I) Final Remaining/Un-built Floor Area = (G) - (H) = 17sf
As demonstrated above, the total un-built developmcnt rights ((C), above) are
1,448sf of Floor Area. Severing of five TDR (I ,250sf) will leave 198sf of un-built
development rights. With thc HPC bonus of 120sf then applied, the un-built
development rights will increase to 318sf ((G), abovc) and enable issuancc of a building
permit for the garage convcrsion.
Thc applicant has several options available at the present time. First, the applicant
could come in now with just the conversion of the garage to living space. Once
completed, thc property would still have the potential to build on an additional 1,147
square feet, not to mention the ability to also request a 500 square foot FAR bonus
(resulting in a total of up to 1.647 square feet of remaining dcvelopment potcntial).
Another possibility would be to come in now with the garage conversion and
sever 4 TDR. That would leave the property with 147 to 647 square feet of
future/remaining dcvelopment potential (depending on how much bonus square footage
might bc grantcd to the property).
The applicant's currcnt request of a 120 square foot FAR bonus, coupled with the
severing of 5 TDR will Icavc the property with only J 7 square fcet of remaining
developmcnt potential, thcreby ensuring that there will bc no future additions to this
historic resource and guaranteeing and outstanding preservation eftort in perpetuity.
Insubstantial Amendment, Section 26.415.070(E)(1)(a)(4)
Insubstantial amendments are minor modifications to HPC approved plans
that change the shape. location or material <!f a bui/ding element or feature
but maintains the same quality and approximate appearance ()f that found in
the approved plans.
Frost Bam!208 E. Hallam Slree'
Page 3
The subject property and its eXlstmg structure have already received HPC
approvals and have, theretore, been found to be consistent with the HPC Guidelines.
There are no changes proposed to the exterior of this property; rather, only the interior of
the garage building element/feature will be converted to living space. The quality and
exterior appearance of the current building will remain unchanged trom that found in the
approved plans.
FAR BOIII/S, Section 26.415.1l0(e)
The City of Aspen is committed to providing support to property owners to assist
their efforts in maintaining, preserving and enhancing their historic properties.
Recognizing that these properties are valuable community assets is the basic premise
underlying the provision of special procedures and programs for designated historic
properties and districts. Accordingly, Section 26.415.11 O(e) of the Code states that, "in
selected cirClllllstances the HPC lIIay grant lip to .five hllndred (500) additional sqllare
feet of allowable floor area for projects involving designated historic properties." The
applicant is requesting a one-time 120 square foot Floor Area bonus subject to the
following voluntary conditions: 1) that the property be prohibited trom future requests for
additional Floor Area bonuses, and 2) that, prior to issuance of a building permit for the
garage conversion, tive (5) TOR be severed from the property, leaving only 17 or so
square feet of un-built Floor Area.
The following criteria must be met for the property to be considered for the bonus:
a. The design of the project lIIeets all applicahle design gllidelines:
As mentioned above. this home has already been approved as consistent with the
HPC Guidelines, and there are no proposed changes to the exterior of this property.
Granting of the FAR bonus provides assurance that the guidelines-compliant project will
henceforth be preserved in its current form and size.
h. The historic bllilding is the key element '!f" the property and the addition is
incorporated in a manner that lIIaintains the visllal integrity of the historic
bllilding;
The historic "Frost Barn" is the key element of the property. The visual integrity
of the "Frost Barn" will be maintained as there are no proposed changes to the exterior of
the building. As a result of the proposal made herein, only 17 square feet of un-built
development potential will remain with the property, thereby providing a perpetual
guarantee that the historic building will continue to be the key element of the property
and that no additions will occur in a manner that could lessen the visual integrity of the
historic building.
c. The work restores the existing portion (!( the hllilding to its historic
appearance;
Frost Barn/208 E. Hallam Slreet
Page 4
There will be no change to the historic appearance of the building; all rcstoration
work rcquired in association with prior approvals has already been complctcd.
d. The new constrllction is reflective of the proportional patterns fOlmd in the
historic building 's.(orlll, materials or openings;
Thc conversion of the garage to Jiving spacc will not change thc building's
existing and previously approved tonn, materials or openings. The garagc doors will be
left in their cxisting condition with only the interior space being remodeled. As explained
in the earlier portions of this application, the new construction and granting of the FAR
bonus in the manner requcsted will provide a guarantee that the proportional patterns
found in the historic building's toml will never be altercd by an addition. Only 17 square
feet of un-built development potential will remain with the property.
e. 71w construction materials are of the highest quality;
All construction matcrials uscd will be ofthe highest quality.
.f An appropriate transition d~fines the old and new portions of the building;
There will be no changc to the already approvcd and built exterior of the building.
As a result of the proposal made herein, only 17 square feet of un-built development
potential will rcmain with thc property.
g. The project retains a historic outbuilding; and/or
The primary structure is the only historic structure on the site but, itself, was once
a historic outbuilding. Thc "Frost Barn" will be retained.
h. Notahle historic site and landscape features are retained.
Thc HPC approved and cUlTently existing site and landscapc features will be
retaincd without alteration rcsulting from this proposal. As explained in the earlier
sections of this application, granting of the requested FAR bonus will ensure that the
existing structurc, in its current tonn and size, will bc prcscrved in perpetuity.
Thc applicant undcrstands that the granting of additional allowable floor arca is
not a matter of right but is "contingent IIpon the sole discretion of the I1PC and the
Commission's assessments (!( the merits of the proposed project and its ability to
demonstrate exemplary historic presen'ation practices. Projects that demonstrate
multiple elements described ahove will have a greater likelihood of heing awarded
additionalfloor area. "
Frosl Barn/20R E. Hallam Street
Page 5
This conversion of the garage to living space, coupled with the associated
commitment to severing all but 17 square feet of remaining/un-built Floor Area rights,
abides by all of the elemcnts described above. As such, this property will forever continue
to demonstrate exemplary historic preservation practices.
Review Criteria for Establishment ola Historic TDR, Section 26.535.070
A Historic TOR Certificate may be established by the Mayor of the City of Aspen
if the City Council, pursuant to adoption of an ordinance, tinds all the tollowing standards
met:
A. The Sending Site is a Historic Landmark 0/1 which the development of a
single-family or duplex residence is a permitted use, pursllant to Chapter
26.710. Properties on which slIch develoPlllent is a conditionalllse shall
not be eligible.
The proposed sending site is a 3,888 square toot lot located at 208 East Hallam
Street and is a designated Historic Landmark. The site is zoned R-6 and single-tamily
residential development is a penniUed use.
B. It is demonstrated that the Sending Site has permitted unbllilt development
rights. for either a single:family or duplex home, eqllaling or exceeding
two-hundred and Jifty (250) square feet 4 Floor Area multiplied by the
nllmher of Historic TDR Certificates reqllestetl.
The allowable Floor Area for the subject lot is 2,648 squarc feel. The existing
HPC-approved single-family home has three levels with a total Floor Area of 1,200
square feet calculated as tollows: the terrace level is 720 square teet, of which 91.6% is
exempt, leaving the total Floor Area tor the terracc level at 60.48sf; the tirst floor is also
720 square feet ineluding 30 I square feet of exempt garage space, leaving a total Floor
Area for the first floor at 419 square feet; the second tloor is 720 square feet and there is
no exemption on that level; therefore, more than 1.448 square feet of un-built Floor Area
remains available for single-tamily residential use on the subject site (2,648sf - 1,200sf).
With each TOR being valued at 250st; the un-built developmcnt rights can accommodate
five (5) TOR.
For additional explanation, please refer to pagcs 2-3 above.
C. It is demonstrated that the estahlishment oj' TDR Certificates will not
create a nonco/!formity. In cases where nonco/!formity already exists, the
action shall not increase the specific nonco/lformity.
Please refer to the response provided tor the previous criterion. The development
on this property only used 1,200 square feet of base allowable Floor Area. This
Frosl Barn/208 E. Hallam Street
Page 6
development confomls to the requirements of the R-6 Zonc Oistrict, as approved by the
HPC. Severing fivc TOR certificates worth 250sf each will not create or increase a
nonconforll1ity.
D. The allalysis of un built development right shall only illclllde the actual
hllilt development. any approved development order. the allowable
development right prescrihed by zoning. and shall not include the
potential ()f the Sending Site to gain Floor Area bonuses, exemptions, or
similar potential development incentives.
Plcase refer to pages 2-3 above for a detailed analysis and explanation of unbuilt
devclopment rights prescribed by zoning and exclusive of potential to gain Floor Area
bonuses and exemptions. Existing conditions floor plans and floor area calculations have
been preparcd by Roger Kerr, Architect. The plans and calculations show a total built
Floor Area of 1,199.48 square feet, which for case and convenience has hercin been
rounded up to 1,200 square feet.
E. Any development order to develop Floor Area. beyond that remaining legal(y
connected to the prope,.ty afier establishment of TDR Certificates, shall be
considered nlllland void.
The property will not include development of floor area bcyond that remaining
legally connected to it after establishment of five TOR certiticatcs. After severing five
TOR. there will be approximately 198 square fcet of floor area remaining that has not
already been built. The pairing of this and the previous criterion allows for potential use
of Floor Area bonuses and exemptions to be applied after scvcrance of TOR. In the
current case, upon severance of the live TOR, a conditional development order granting a
120sf Floor Area bonus will become effective. No previous development order allowed
development of more Floor Arca than wouJd remain with the propcrty after severance of
the tivc TOR.
F. The proposed deed restriction permanent(v restricts the development (!(
the proper(v (the Sending SUe) to an allowable Floor Area not exceeding
the allowance for a single:fillni(v or duplex residence minus two hundred
and .fifty (250) square feet (!( Floor Area multiplied by the number of
Historic TDR Certificates established. The deed restriction shall not
stipulate an ahsolute Floor Area. hut shall stipulate a square footage
reduction from the a/lowahlc Floor Area, as may be amendedfi'om time to
time. The Sending Site shall remain eligih/e for certain Floor Area
incentives and/or exemptiol1." as may be allthorized hy the City of Aspen
Land Usc Code, as may be amended POIll time to time. The fiJrm (J{ the
dced restriction shall be acceptable to the City Attorney.
Frost Barn/208 E. Hallam Street
Page 7
The sending site will be decd rcstrictcd in a manncr acceptable to the City
Attorney such that it will be limited to 1,250sfless than the allowable Floor Area under
applicanJc zoning, as may bc amended Ii'om time to time, plus any potentially available
Floor Area non uses, exemptions, or similar potential deveJopment ineentivcs. The deed
resttietion will be cxecuted and record cd simuJtancous with the closing discussed in the
next standard.
G. A real estate closing has heen .I'chedllled at which. upon satisfaction ,!/all
relevant requirements. the Citv shall execute and deliver the applicahle
numher o( Historic 11)/1 Certificates to the Sending Site propertl' owner
and thaI proper~v {)~t!ner ,..;hall execute and deliver a deed restriction
lessening the availahle development right o(the suhject property together
lI'ith the appropriatefeejiJr recording the deed restriction with the Pitkin
('ounO' Clerk and Recorder's Office.
The requirements of this standard havc neen read and understood by the applicant
and his Icgal counsel. It is requested that thc cJosing bc scheduled tor a date as soon after
adoption of the approval ordinance as practicable.
II. It shall he the responsihilif-y of the Sending Site property owner to provide
huilding plans and a zoning IlIw~l'sis of the Sending Site to the satisfaction
(!f the Community Development Director. Certain review ji,es may he
rC(luiredjiJr the confirmation o/huilt Floor Area.
The sending site propcrty owner has provided building plans and a zoning
analysis. The Site Improvcment Survey and the dimensioned, scaled drawings of the
existing development clearly dcmonstrate that the project's total Floor Area docs not
exceed that allowcd after scvering of the tive TDR. Existing built FAR is 1,200sf as
demonstrated on thc accompanying cxisting conditions tloor plans.
It is hop cd the intonnation and responses provided above prove helpful 111 your
revicw, and we look f(Jrwartl to working with you toward approving this worthy
application. If you should have any questions or desirc any additional inlonnation, please
do not hesitatc to contact me.
Yours truJy,
Haas Land Planning, LLC
Mitc aas, AIcP
Owncr/Manager
Frost Bami2m~ E. Hallam Street
Page 8
MEMORANDUM
VI'\&.
DATE OF MEMO:
MEETING DATE:
Mayor Ireland and Aspen City Council
Chris Bendon, Community Development Director~
The Lodge at Aspen Mountain Final PUD, Timeshare,
Subdivision, Growth Management Reviews, 2nd Reading of
Ordinance No.5, Series of 2007. Continued from 8.27.07
September 17, 2007
September 24, 2007
TO:
FROM:
RE:
PROJECT: The Lodge at Aspen Mountain Final PUD
.
REQUEST SUMMARY: The Council is being asked to review and approve a Final PUD,
Timeshare Development Plan, Subdivision, Multi-Year Growth
Management Allotment and Affordable Housing Outside the City
Limits. The proposal would demolish the existing Mine Dump
Apartments and one single-family residence, and redevelop the two
properties with a 151,000 square foot, multi-story structure for 73
hotel rooms, 25 fractional units, 20 affordable housing units, 18,500
square feet of commercial space and 224 parking spaces in two sub-
grade parking garages.
ApPLICANT: Centurion Partners, LLC on behalf of Aspen Land Fund II, LLC,
represented by John Sarpa and Sunny Vann, AICP.
LEGAL DESCRIPTION: Block 6 ofthe Eames Addition and Lots 7-20, Block 11 of the Eames
Addition (and a small triangular shaped lot described by metes and
bounds)
STAFF Staff recommends approval of the development with conditions as
RECOMMENDATION: put forth in Ordinance No.5, Series 2007.
AMENDMENTS TO PROJECT:
The Applicant has amended the project as follows:
. Total FAR-Reduced from 175,000 to 151,000 square feet.
. Total Height - Reduced by one floor in a substantial portion of the project. (See
height diagram)
. Hotel Units - Reduced from 80 units to 73 units with a total of 75 bedrooms.
. Fractional Units - Increased from 21 units to 25 three and four bedroom units for
a total of 90 bedrooms.
. Parking Spaces - Reduced from 254 spaces to 224 spaces.
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. SPA Facilities - Reduced from 12,000 to 8,000 square feet.
. Free-Market Residential Units - Reduced from 4 to O.
. Snowmelt So. Aspen Street - Replaced with increased maintenance of existing
street (50 on-street parking spaces remain).
. Snowmelt of sidewalk - Remains, with same 100% carbon neutral requirement.
. Affordable Housing Mitigation - Remains at 20 units on-site 3 and 17 Increased
from 73% of staffing estimate to 100% of the staffing estimate with the same
provision for a post-occupancy audit.
COMMENTS ABOUT HVS REPORT:
In previous hearings, there were many representations made concerning the Lodging
Report commissioned by the City of Aspen in late 2006. Staff has asked representatives
from HVS, International, to attend the hearing, provide a brief summary of their findings,
and be available to answer questions that may arise during the hearing.
STAFF RECOMMENDATION:
Staff believes that this project provides important lodging at the base of Aspen Mountain
in a location where lodging should be located in our resort community - close to the
mountain, near the retail/restaurant and entertainment core, near transit and within a
cluster of lodging/timeshare and condominium development. Staff also feels that the
lodging proposal would provide significantly more community benefit than the residential
townhome project that has vested rights on the subject property.
Use and Location - This location between downtown and the base of Aspen Mountain is
appropriate for short-term rentals. The Aspen Area Community Plan identified this area
as future lodging and the property is zoned for lodge development.
Visual Impacts, Bulk & Mass - The Lodge project has represented a more substantial
building and visual impact than the Townhomes project. The Lodge project has been
modified several times in an attempt to address this concern. The latest iteration
complies with the height requirements in all areas except one portion ofthe project which
is set back from the front fayade. (Please refer to the drawing packet.)
The Townhomes project was approved and vested prior to amendments to the Lodge
Zone District and represents an FAR approximately 160% that allowed in the zone
district for multi-family housing. The free-market residential portion of the Townhomes
project is approximately 235% of the current zoning allowance. The 84,000 square foot
allowable FAR for the Townhomes project is still significantly less than the 151,000 FAR
ofthe Lodge project.
Employee Housing - The demolition of the Mine Dumps creates a housing replacement
requirement. This requirement must be met independent of whether the site is developed
with the townhomes project or the lodge project. The Townhomes project was not
required to mitigate for the development of the free-market residential units. The City
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...._------..---..,,_."',..~~-,---._._~,_.
does not require mitigation for free-market residences, although some recent studies have
demonstrated employee generation from this land use.
Staff finds that the project represents an exemplary project primarily for its energy
conservation plan, its substantial commitment of over the required employee housing
mitigation, its CMP, its enhancements to the streetscape & infrastructure, and its
compatibility with the character of the uses in the area. Staff believes that the application
satisfies the applicable review standards and recommends that the City Council approve
the project.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION: (All motions are made in the affirmative)
"I move to approve Ordinance No.5, Series of 2007, second reading, "The Lodge at
Aspen Mountain" Final PUD and associated land use actions."
EXHIBITS:
A - Revised project drawing packet.
-3-
ORDINANCE NO.5
(SERIES OF 2007)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN
APPROVING A FINAL PLANNED UNIT DEVELOPMENT, GMQS APPROVAL
FOR A MUL TI- YEAR ALLOTMENT AND AFFORDABLE HOUSING OUTSIDE
THE CITY LIMITS, FINAL TIMESHARE, SUBDIVISION, AND
CONDOMINIUMIZA TION FOR "THE LODGE AT ASPEN MOUNTAIN"
DEVELOPMENT, LEGALLY DESCRIBED AS BLOCK 6 EAMES ADDITION
AND LOTS 7-20, BLOCK II OF THE EAMES ADDITION AND A SMALL METES
AND BOUNDS TRIANGULARLY SHAPED LOT, CITY OF ASPEN, PITKIN
COUNTY, COLORADO.
ParcellD:
2735-131-23-001 (Mine Dump Apartments)
2735-131-13-001 (Parcel with the Single-Family Residence)
WHEREAS, the Community Development Department received an application
from the Aspen Land Fund II, LLC, represented by Sunny Vann of Vann Associates,
requesting approval of the Lodge at Aspen Mountain Final Planned Unit Development,
Final Timeshare, Subdivision, Growth Management Reviews, Conditional Use, 8040
Greenline Review, and Condominiumization to construct a lodge containing seventy-
three (73) hotel rooms, twenty-five (25) fractional lodge units, twenty (20) on-site
affordable housing units, 18,500 net leasable square feet of commercial space, and
accessory facilities; and,
WHEREAS, City Council granted Conceptual PUD and Conceptual Timeshare
approval pursuant to City Council Resolution 69, Series of 2005 on November 28, 2005;
and,
WHEREAS, the parcels subject to the application consist of a total of 104,518
square feet and is zoned Lodge with Planned Unit Development Overlay (LIPUD); and,
WHEREAS, the Community Development Department solicited and received
referral comments from the Aspen Consolidated Sanitation District, City Engineering,
Building Department, Fire, Streets, Housing, Environmental Health, Parks and Water
Departments as a result of the Development Review Committee meeting; and,
WHEREAS, the City of Aspen / Pitkin County Housing Board forwarded a
unanimous recommendation of approval to City Council to approve the proposed
affordable housing mitigation and replacement units for the project at their meeting held
on November 15,2006; and,
WHEREAS, during duly noticed public hearings that were opened on December
5,2006, and continued to January 16 and then to February 6, 2007, the Planning and
Zoning Commission approved Resolution No. 03, Series of 2007, by a four to zero (4-0)
vote, recommending that City Council approve with conditions, the Lodge at Aspen
Ordinance No.5, 2007
The Lodge At Aspen Mountain
Page I
Mountain Final PUD, Final Timeshare, Subdivision, Condominiumization, and Multi-
Year & Affordable Housing Outside the City Limits Growth Management Reviews, and
approved the remaining Growth Management Reviews, Conditional Use, and 8040
Greenline, in order to allow the construction of a lodge consisting of seventy-three (73)
hotel rooms, twenty-five (25) fractional lodge units, twenty (20) on-site affordable
housing units, 18,500 net leasable square feet of commercial space, and accessory
facilities; and,
WHEREAS, The Council finds that the applicable development review standards
are met by the proposal, provided that the conditions established herein are complied
with.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO THAT:
The City Council hereby approves The Lodge at Aspen Mountain Final Planned Unit
Development, Final Timeshare, Subdivision, Growth Management Review for
Affordable Housing Outside the City Limits, Growth Management Review for 18,500 net
leasable commercial square feet including 4,995 square feet of Multi-Year Allotments,
and Condominiumization to construct a lodge containing seventy-three (73) hotel rooms,
twenty-five (25) fractional lodge units, twenty (20) on-site affordable housing units,
18,500 net leasable square feet of commercial space, and accessory facilities including
224 parking spaces, with the conditions contained herein.
Section 1: Subdivision Plat, PUD Plans and Al!reements
The Applicants shall record a Subdivision Plat and Subdivision Agreement that meets the
requirements of Land Use Code Section 26.480 within 180 days of approval.
Additionally, a Final PUD Plan shall be recorded in the Pitkin County Clerk and
Recorder's Office within 180 days of the final approval and shall include the following:
a. A final subdivision plat meeting the requirements of the City Engineer and
showing easements, encroachment agreements, and licenses with the
reception numbers for physical improvements and location of utility
pedestals.
b. An illustrative site plan of the project showing the proposed improvements,
landscaping, parking, and the dimensional requirements as approved.
c. A drawing representing the project's architectural character.
d. A final grading and drainage plan.
e. A final utility and public infrastructure plan.
Section 2: Buildinl! Permit Application
The building permit application shall include the following:
a. A copy ofthe final recorded City Council Ordinance and P&Z Resolution.
b. The conditions of approval printed on the cover page of the building permit
set.
c. A completed tap permit for service with the Aspen Consolidated Sanitation
District.
Ordinance No.5, 2007
The Lodge At Aspen Mountain
Page 2
d. Evidence that a tree removal permit has been attained pursuant to the
requirements of the City Parks Department (and Section 12, below). The
tree removal permit shall be accompanied by a detailed landscape plan
indicating which trees are to be removed and new plantings proposed on the
site.
e. A drainage plan including an erosion control plan and snow storage runoff
plan prepared by a Colorado licensed Civil Engineer which maintains
sediment and debris on site during and after construction. If a ground
recharge system is required a soil percolation report will be required to
correctly size the facility. A 5-year storm frequency should be used in
designing any drainage improvements.
f. A final construction management plan pursuant to the requirements
described in Section 4 of this ordinance.
g. An excavation/stabilization plan prepared by a licensed Engineer.
Section 3: Dimensional Requirements
The fol bl
lowing ta e outlines the aooroved dimensions of this PUD:
I>iiilqi""jJ~t Apllro"edDeltlif.mment
Minimum Lot Size 104,518 Sq. Ft. (total of both
oarcels and vacated areas)
Minimum Lot Areal Dwelling Multi-Family- I bedroom per
1,000 square feet of lot area.
Lodge- No Requirement
Front Yard Setback* Parcel 1- 2.8
Parcel 2- 0.6
Side Yard Setback* Parcel 1- East Side Yard-7.4
West Side Yard - 8' to edge of
pool deck (excluding Juan St.
curve). 106.2' to primary fayade
of building.
Parcel2- North Side Yard- 0.5'
South Side Yard- 8 .0
Rear Yard Setback* Parcell - 13.6'
Parcel 2 - 1.0'
Allowable Building Height 53'9" at maximum ridge height,
in accordance with the Height
Plan of the recorded PUD Plans
Reauired Open Soace 16.2% (15,991 square feet)
Allowable FAR 1.45: 1 (151,000 square feet)
Off-Street Parking 224 Parking Spaces
* Setbacks noted in this table are the minimum approved. The Final PUD plans
shall depict and show measurements of all the primary face walls of the structures for
front, rear and side yard setbacks.
Ordinance No.5, 2007
The Lodge At Aspen Mountain
Page 3
Section 4: Construction Manal!ement Plan
The Lodge at AspenMountain Construction Management Plan (CMP), dated February 6,
2007, and prepared by Swinerton Builders shall be included as part of this approval and
shall be implemented by the applicants and carried out throughout the project. Prior to
issuance of a building permit, the CMP shall be reviewed by the City's Construction
Management Officer and the City Engineer for completeness and applicability and found
to be acceptable to attain the City's construction management goals. The CMP shall be
amended to include provisions for increasing the level of road maintenance (provided by
the developer) during winter construction time. Such provisions and minor amendments
to the CMP as found necessary shall be approved by the City Engineer.
As part of the CMP, the developer shall agree to require all dump trucks hauling to and
from the site to cover their loads and meet the emission requirements of the Colorado
Smoking Vehicle Law. Any regulations regarding construction management that may be
adopted by the City of Aspen prior to application for a building permit for this project
shall be applicable.
A temporary encroachment license is required for use of the City right of way for
construction purposes. The Applicant shall not be allowed to close South Aspen Street
during construction except for reconstruction of the street. Street closure of South Aspen
Street concurrent with significant public events like Wodd Cup shall be avoided to the
greatest extent possible.
The Applicant shall provide phone contact information of the on-site project management
to neighboring properties (Lift One Condominiums, the Timber Ridge Condominiums,
the Shadow Mountain Condominiums, and the South Point Condominiums) and post
such information on a sign at the construction site in full public view so that concerns
about the development may be made directly to the construction management personnel.
Section 5: Pre-Submittal Meetinl!
The Applicant shall arrange with the Community Development case planner to conduct a
pre-submission meeting with the City Community Development Staff prior to submittal
of a building permit application. This meeting shall include the applicant, the general
contractor, the architect of the construction drawings, the project planner, Community
Development Engineer, a representative of the City Building Department, City
Construction Management Officer, and the Community Development Department's case
planner.
Section 6: Fire Access and Mitil!ation
The bridge over Juan Street shall be at least sixteen and a half feet above Juan Street to
allow for the passage of emergency vehicles under the structure. The Applicant shall
install a fire sprinkler system and alarm system within the entire building structure as
required by the Fire Marshall. The water service line shall be sized appropriately to
accommodate the required fire sprinkler system. The Applicant's design team shall meet
with the Fire Marshall to formulate a plan for fighting fires in the below grade parking
garage structures prior to building permit submittal.
Ordinance No.5, 2007
The Lodge At Aspen Mountain
Page 4
Section 7: Water & Electric Department Requirements
The Applicant shall comply with the Holy Cross and City of Aspen Electric Department
Standards and Water System Standards, with Title 25, and with the applicable standards
of Title 8 Water Conservation and Plumbing Advisory Code of the Aspen Municipal
Code as required by the City of Aspen Water Department. The Applicant shall also enter
into a water service agreement with the City and complete a common service line
agreement for the residential units (both affordable and free-market). Each residential
unit shall have an individual water meter.
Section 8: Storm Water/Drainal!e Plan
The Applicant shall submit a Storm Water Drainage Plan pnor to Building Permit
submittal that meets with the approval of the City Engineer.
Section 9: Aspen Consolidated Sanitation District Requirements
The Applicant shall comply with the Aspen Consolidated Sanitation District's rules and
regulations. No "clear water" connections (roof, foundation, perimeter drains) to ACSD
lines shall be allowed. Oil and sand separators meeting the ACSD's requirements shall be
installed in each of the parking garages. The driveway entrance drains shall drain to
drywells and elevator shaft drains shall drain through an oil and sand separator. One tap
to the main sanitary line is allowed for each of the buildings within the development. No
soil nails shall be allowed in the public right of way above ACSD main sewer lines. The
Applicants shall enter into a shared service line agreement with ACSD. Glycol and
snowmelt shall have containment areas approved by the Aspen Consolidated Sanitation
District.
Section 10: Soil Stabilization
The Applicant shall install inclinometers and conduct bi-monthly monitoring for a minimum
of one spring thaw cycle before the issuance of an excavation permit. The number and
location of the inclinometers shall be reviewed and approved by the City Engineer prior to
installation. If any slope movement is identified by the bi-monthly monitoring, the project
will not be allowed to exacerbate the historic rate of slope movement during or after
construction. If the historic rate of movement is exacerbated during the construction
process, the City shall stop work on the project and require the Applicant to make such
improvements that are necessary to reduce the slope movement back to historic rates. If the
inclinometers determine that there is a historic rate of slope movement, the design shall
exhibit a global stability meeting the AASHTO requirements, which implies a minimum
factor of safety of 1.5.
In preparing soil stability reports for the property, a soil bearing grid with no more than 100
feet between test locations shall be used under the building's footprint. In areas outside of
the building's footprint, test locations shall not exceed 500 feet apart. The depth of soil
borings must exceed the elevation of the lowest footer by twenty (20) feet. Prior to the
recordation of the SubdivisionlPUD plans and documents, the Applicant shall develop a
mutually acceptable agreement with the Shadow Mountain Homeowner's Association reo
slope stability provisions.
Ordinance No.5, 2007
The Lodge At Aspen Mountain
Page 5
Section II: Hazardous Soils: This site has not been previously identified as containing
hazardous soils. However, detailed soils reports shall be submitted with the Building
Permit application and if any hazardous materials are reported the applicant shall provide
the City with a mine waste testing and handling plan provided by a registered engineer or
other entity with experience in soils and hazardous waste disposal. The plan must comply
with the following conditions of approval regarding development and handling of any
hazardous or toxic soils encountered on the property unless adequate information is
provided to the Environmental Health Department indicating that certain requirements
should be waived:
a. Any disturbed soil or material containing more than 1000 ppm lead that is to be
stored above ground shall be securely contained on and covered with a non-
permeable tarp or other protective barrier approved by the Environmental Health
Department so as to prevent leaching of contaminated material onto or into the
surface soil. Disturbed soil or material may be stored onsite if the Environmental
Health Department determines that there exists a satisfactory method of disposal
at the excavation site. Disturbed soil and solid waste may be disposed of outside
of the site upon acceptance of the material at a duly licensed and authorized
receiving facility.
b. Non-removal of contaminated material. No contaminated soil or solid waste shall
be removed, placed, stored, transported or disposed of outside the boundaries of
the site without having first obtained any and all necessary disposal permits.
c. Dust suppression. All activity or development shall be accompanied by dust
suppression measures such as the application of water or other soil surfactant to
minimize the creation and release of dust and other particulates into the air and to
prevent such dust and particulates from traveling off the site.
d. Any contaminated soil or mine waste rock that is disturbed or exposed shall be
contained on the property such that runoff does not exit the property or
contaminate clean soils existing on or offthe property.
e. Any contaminated soil or mine waste rock to be left on-site shall be placed under
structures, pavement or covered by a minimum of 1 foot of clean soil that
contains less than 1,000 ppm lead.
Section 12: Increased Winter Maintenance of South Aspen Street
The PUD Agreement shall include an agreement between the Applicant and the City of
Aspen regarding the increased winter maintenance for that part of South Aspen Street which
lies south of Durant Avenue. The Applicant, and/or assigns, shall be responsible for the
increased annual capital and operational expense incurred by the City of Aspen on an
ongoing basis. The agreement shall require the City Engineer and the Superintendent of
Streets to, on an annual basis and in cooperation with the Applicant and/or assigns, specity
the level of maintenance required and estimate the capital and operational costs to be
incurred by the City in order to provide said level of maintenance. The agreement shall
require the Applicant and/or assigns to make a one-time per year payment to the City of
Ordinance No.5, 2007
The Lodge At Aspen Mountain
Page 6
Aspen for the increased level of maintenance for South Aspen Street. The agreement shall
permit the City to add to the then current year's payment estimate any unforeseen costs
borne by the City in the previous year in order to achieve the specified level of maintenance.
(For example: additional costs due to an above average number or intensity of snow storms.)
The form of the agreement shall be acceptable to the City Attorney. The agreement shall
allow for this ongoing obligation to be assigned to an improvement district.
Section 13: Landscapinl!
The proposed landscaping in the public right of way shall meet the Parks Department
standards for location, spacing, species, planting specifications, irrigation and other
applicable standards. Sidewalks shall be designed and built in a manner that reduces the
impact to existing trees and roots systems. All sidewalks located within the drip line of
trees to be saved shall be built on grade in a manner that allows for the sub-grade prep
and sidewalk to float over the roots preventing any excavation into the soil. All work in
these protection zones is to be accomplished without machines, but by handwork only.
An approved tree permit will be required before any demolition or significant property
changes take place. The tree permit must be approved prior to submission of the building
permit. Mitigation for tree removals will be paid cash in lieu or on site.
Section 14: Replacement of Lift lA
As represented by the Applicant, the Applicant shall provide four million dollars
($4,000,000) towards the replacement of Lift 1A with a new lift. Such representation is
hereby incorporated into this approval as a condition. The new lift shall be operational prior
to the conveyance of separate real estate interests for units within the Lodge at Aspen
Mountain project.
Section 15: Enerl!Y Conservation
The Applicant has made representations committing to the following energy goals. Such
goals are hereby included as conditions of approval.
a) To use thirty percent less energy than the average measured energy use of
comparable type properties in the area for the base data (See note A).
b) To "true up," on an annual basis (sun setting in 20 years), the actual energy
consumption of the property, and purchase local renewable energy or carbon
offsets as necessary to cover any shortfall (See note B). The Subdivision
Improvement Agreement shall specity a maximum cap on the shortfall penalty.
c) If actual energy use in any given year is less than the target, a credit would accrue
to the project, which could be used for sale or trade for other projects, or carried
forward for credit in future years.
d) To offset 100% of C02e emissions from any and all snowmelt installed in the
public right of way directly associated with the Lodge At Aspen Mountain (See
note B)
. Note A: All measurements to be combined electric and natural gas consumption,
including snowmelt, pools, spas, and garages. For the purpose of identitying
Ordinance No.5, 2007
The Lodge At Aspen Mountain
Page 7
offsets, energy use shall be converted to pounds of C02e using City of Aspen
conversion factors.
. Note B: Purchase of offsets to be accomplished thru a variety of means, in order
of preference:
Energy or carbon-saving project(s), equal in C02e reductions to the excess
C02e emissions from the Lodge At Aspen Mountain (and verified by CORE),
directly funded and managed by the Lodge At Aspen Mountain or its agents,
Purchase of local energy or carbon offsets through a local market (CORE or
others, approved by the City of Aspen and verified by CORE, as available),
or, if the first two options are not possible with City of Aspen approval,
Purchase of energy or carbon offsets through a public market, with minimum
criteria for the quality, additionality, and durability of offsets.
The Applicant shall, on an annual basis (sun setting in 20 years), identify and implement
ways to improve overall energy performance of the development in order to minimize
offsets. Such analysis shall be provided to the City's Canary Initiative Manager for
review.
The Subdivision/PUD Agreement shall include an agreement on the "baseline" (without
energy saving strategies implemented) energy usage of the Lodge at Aspen Mountain, the
target performance, the methodology to measure the performance ofthe project above the
baseline assumption, and the mitigation measures to be implemented if the target
performance is not reached. In determining the "baseline" energy usage, the Applicant
and the City of Aspen Global Warming Project Manager shall agree on the example
projects to be evaluated and the methodology to be used in evaluating said projects to
ensure the baseline energy usage represents an accurate assumption of a facility of this
size, location, and operating characteristic.
Section 16: Off-Street Parkinl! and the Provision of Bicvcles
The Applicant shall construct a total of 224 parking spaces within the two (2) underground
garages. 116 of the parking spaces are required parking as follows - 50 spaces for the hotel
and fractional units, 16 spaces for the commercial uses, 20 spaces for the on-site affordable
housing units, and 30 spaces for the Aspen Skiing Company pursuant to an existing lease.
The 20 spaces for on-site affordable housing shall be specifically designated for the
affordable housing units. The remaining parking spaces may be leased or sold to off-site
tenants.
A fleet of ten (10) bicycles shall be provided as part of the hotel and fractional ownership
operations and shall be made available to the customers without charge and stored in a
covered area.
Ordinance No.5, 2007
The Lodge Al Aspen Mounlain
Page 8
Section 17: Emplovee Housinl! Requirement
The Applicant shall provide affordable housing for 185 employees. This requirement is a
sum of the following requirements and commitments by the applicant:
Demolition of the Mine Dumps Apartments - The existing, prior to demolition, Mine Dumps
consisted of 16 units, 24 bedrooms and 7,722 square feet of Net Residential Area.
Demolition of these units results in a replacement requirement of 12 bedrooms and 3,861
square feet of Net Livable Area. These units must be on-site to satisty the replacement
requirement. This equates to housing for 15 employees.
Lodge Bedrooms - The development of lodging generates .5 employees per bedroom. The
projects contains 165 lodging bedrooms and therefore the lodging component of the project
generates 82.5 employees. The City requires a minimum of 60% of the generated
employees to be provided with housing. The applicant has committed to provide housing
for 91 employees or approximately 110% of the lodge employees using the City's
generation formula. Also see audit provision below.
Main-Level Commercial Space - Commercial space on the main level of a building in the
Lodge Zone District generates 4.1 employees per 1,000 square feet. The project contains
13,960 net leasable square feet on the main level generating 57.25 employees. The City
requires a minimum of 60% of the generated employees to be provided with housing. The
applicant has committed to provide housing for 63.5 employees or approximately 110% of
the main level commercial employees using the City's generation formula. Also see audit
provision below.
Basement-Level Commercial Space - Commercial space on the basement level of a building
in the Lodge Zone District generates 3.075 employees per 1,000 square feet. The project
contains 4,540 net leasable square feet on the basement level generating 13.9 employees.
The City requires a minimum of 60% of the generated employees to be provided with
housing. The applicant has committed to provide housing for 15.5 employees or
approximately 110% of the basement level commercial employees using the City's
generation formula. Also see audit provision below.
Total Employee Housing Requirement-
Mine Dumps Replacement (must be on-site) = 15 FTEs
Lodging Bedrooms = 91 FTEs
Main-Level Commercial = 63.5 FTEs
Basement-Level Commercial = 15.5 FTEs
Total = 185 FTEs
The required employee housing shall be provided as follows:
On-Site - Twenty (20) Category 2 affordable housing units shall be developed on the
Lodge at Aspen Mountain site. These units shall be comprised of seventeen (17) studios
and three (3) I-bedroom units. This housing accounts for 26.5 employees. This also
satisfies the on-site requirements ~f the replacement program.
Ordinance No.5, 2007
The Lodge Al Aspen Mounlain
Page 9
Off-Site - At least 158.5 FTEs shall be housed within the City of Aspen Urban Growth
Boundary in newly-built or buy-down units. All or a portion may be, but is not required,
to be at the Smuggler Affordable Housing site. All or a portion may be, but is not
required, to be at the two Airport Business Center sites.
Timing - The Applicant shall have constructed, deed-restricted, and received certificates of
occupancy on all of the off-site affordable housing units prior to the issuance of a certificate
of occupancy on the Lodge at Aspen Mountain. The on-site units shall be ready for
occupancy concurrent with the lodge.
Mine Dumps Tenants - The existing Mine Dumps unit tenants (tenants at the time of the
demolition) shall be provided a right of first refusal for the purchase of an affordable
housing unit at the off-site AH mitigation at either the Smuggler AH Project or the Aspen
Area Business Center project associated with The Lodge at Aspen Mountain. Tenants will
need to meet the qualification requirements of APCHA.
On-Site Rental Units - The on-site affordable housing units shall be in compliance with
APCHA's Employee Housing Guidelines. The Applicant shall record a deed restriction
on each of the affordable housing units at the time of recordation of the condominium
plat and prior to the issuance of a Certificate of Occupancy for the building, classifying
the units as Category 2 units. If the Applicant chooses to deed restrict the affordable
housing units as rental units, the Applicant shall convey a 1/10 of one percent, undivided
interest in the units to the AspenlPitkin County Housing Authority prior to the issuance of
a certificate of occupancy on any portion of the building.
In the event the affordable housing units are not rented in compliance with the rental
requirements of the Housing Authority's rental requirements, the Aspen/Pitkin Housing
Authority has the right to place tenants in the affordable housing units.
Employee Generation Estimates - The employee housing requirements established in this
Ordinance are based on estimates of the project's eventual actual employee needs. The
City of Aspen Land Use Code employee generation calculations predict the lodge
operation (not including the replacement housing from the mine dumps) will generate
153.65 employees. The Applicant was asked to provide an operation estimate and, using
the Columbia Hospitality Staffing Guide, predicted that 170 employees will be required
to operate the Lodge. The Applicant has committed to housing 170 lodge employees
(again, not including the 15 employees required for the replacement of the mine dumps).
This 170 employees housed commitment represents 110.6% of the employees housed
according to the Land Use Code or 100% employees housed according to the Applicant's
estimates.
Employee Audit -An employee audit of the Lodge at Aspen Mountain shall be conducted
after three (3) full fiscal years from the date of issuance of a Certificate of Occupancy to
verify the employee assumptions upon which this approval is granted. Terms of the
Audit:
Ordinance No.5, 2007
The Lodge Al Aspen Mountain
Page 10
. The Applicant shall retain an auditor who has been pre-approved by the
AspenlPitkin County Housing Authority Operations Manager.
. The audit shall be conducted after three (3) full fiscal years of operation and shall
account for all employees of the Lodge at Aspen Mountain project and
components thereof.
. The Applicant shall be responsible for all fees associated with the audit.
. The audit shall be provided to the AspenlPitkin County Housing Authority
Operations Manager.
Should the audit demonstrate that the Lodge at Aspen Mountain employs more than 170
employees estimated by the Applicant (measured as full-time equivalent employees), the
Applicant shall provide additional deed restricted affordable housing, or cash-in-lieu
thereof, to mitigate for 1 00% of the employees above the 1 70 employee estimate.
Employee Audit Agreement and Enforcement - The Applicant shall provide an addendum
agreement to the Subdivision Improvement Agreement binding the Applicant, including
successors and assigns, specitying the terms of this employee audit provision. The
agreement shall include cessation of the lodge operation as the remedy for non-
compliance with this provision as may be determined pursuant to Section 26.308.01O.E
of the City of Aspen Land Use Code.
Section 18: Park Development Impact Fees
Park Development Impact Fees shall be assessed at the time of building permit issuance
pursuant to Land Use Code Section 26.610, Park Development Impact Fees. The Park
Development Impact Fees shall be calculated by the City of Aspen Zoning Officer using
the fee schedule in place at the time of building permit issuance.
Section 19: School Land Dedication Fees
School Land Dedication Fees shall be assessed on the proposal at the time of building
permit issuance pursuant to Land Use Code Section 26.630, School Lands Dedication,
because subdivision approval is required for the development of the multi-family
residential units per the definition of subdivision in the land use code. The school lands
dedication fees shall be calculated by the City of Aspen Zoning Officer using the fee
schedule in place at the time of building permit issuance.
Section 20: Impact Fees
All impact fees in effect at the time of building permit application submittal shall be
applicable and be paid prior to the issuance of a building permit.
Section 21: Transportation Mana!!ement
The Applicant shall implement a transportation management plan aimed at reducing
vehicle trips for both guests and employees through the use of such strategies as hotel
shuttle service, bus passes for employees, carpool program, etc. Such plan shall meet
with the approval of the Transportation Department finding that the plan puts reasonable
measures in place to encourage alternatives to the use of the car.
Ordinance No.5, 2007
The Lodge At Aspen Mountain
Page 11
The applicant shall work with the City Engineer to determine an appropriate traffic and
parking plan for Juan Street that is found acceptable to the City Engineer.
Section 22: Exterior Lil!htinl!
All exterior lighting shall meet the City's Lighting Code Requirements pursuant to Land
Use Code Section 26.575.150, Outdoor Lighting. The Applicant shall submit an exterior
lighting plan as part of the building permit submittal.
Section 23: Food Service Facilities
Food service plans meeting the requirements of the City of Aspen Environmental Health
Department shall be submitted and approved prior to serving food and prior to obtaining a
Colorado Food Service License for any of the commercial space that is to be used as
restaurant space. An oil and grease interceptor approved by the Aspen Consolidated
Sanitation District shall be installed in any space that is to be used as a restaurant.
Section 24: Portion of Dean Street Vacation
The Applicants for the Lodge at Aspen Mountain shall pursue official vacation of a
portion of the Dean Street right-of-way from the City Council for that portion of Dean
Street that has been presented as part of this PUD application. This PUD approval, while
not the official approval for the street vacation, acknowledges that the vacation is an
important component to the development of the subject property and provides benefits to
the neighbors.
Section 25: Community Benefits Representations
The Applicant has represented that they will append to the operational program of The
Lodge at Aspen Mountain, the six (6) items identified in the "Selected Community Benefits
Exhibit", as follows:
a.) one dollar ($1.00) per occupied room night will be donated to local charities every
year,
b.) discounted room nights, meeting space, spa services and food/beverage will be
provided during seasonal periods (the "off-seasons"),
c.) vocational hospitality training programs for Aspen High School students will be
provided,
d.) full time employees will be given paid time off to work on local charity causes,
e.) a national/global marketing campaign will be put in place to promote Aspen as a
destination (beyond the hotel advertising that will be conducted), and
f.) support will be provided to World Cup Events.
Section 26:
All material representations and commitments made by the applicant pursuant to the
development proposal approvals as herein awarded, whether in public hearing or
documentation presented before the Planning and Zoning Commission or City Council, are
hereby incorporated in such development approvals and the same shall be complied with as
if fully set forth herein, unless amended by an authorized entity.
Ordinance No.5, 2007
The Lodge Al Aspen Mounlain
Page 12
The Applicant has represented that they will voluntarily record a covenant and deed restrict
the use of the seventy-three (73) hotel rooms in the Lodge At Aspen Mountain project to
hotel and lodge room use for a period of 99 years. Such representation is hereby included as
conditions of this ordinance. The deed restriction cannot be amended or terminated without
the express written consent of the City of Aspen City Council and the owner of the hotel
units. The covenant and commitment shall be memorialized in a deed restriction to be
recorded contemporaneously with the recording of the SubdivisionlPUD Agreement for the
Lodge at Aspen Mountain project and shall be specifically set forth in the recorded
Declaration of Condominium for the project.
The Applicant has represented that the approvals for the "townhome project" for the same
site shall be vacated upon recordation of the Subdivision Improvement and Planned Unit
Development Agreement and associated plats and plans for the Lodge at Aspen Mountain
development. Such representation is hereby included as conditions of this ordinance.
The Applicant has represented implementation of the following program for locals:
I. Locals' Pass - 20% off regular food and beverage, spa services, banquet room rental,
and hotel room rates. This pass would be available to all residents of Aspen, and
discounts would be provided on a space-available basis. The annual fee for the pass
would be minimal ($10), and all proceeds from the sale of the pass would be donated
to local nonprofit organizations.
2. Car Sharing Program - The Applicant would fund the purchase of one or more new
vehicles in the Roaring Fork Valley Vehicle car-sharing program. This car would be
located in accessible parking at the Lodge and would be available to all participants in
the RFVV program.
3. Casual Take-out Dining Option - The Applicant will explore the possibility of putting a
deli-type shop in the Lodge. This deli would provide fast, fresh, and inexpensive take-
out food.
Section 27:
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 28:
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 29:
A public hearing on this ordinance was held on March 12,2007 and continued to March
26, April 9, May 14, June 25, July 23, August 13, 2007, August 27, 2007, and then to
VII' ~
MEMORANDUM
FROM:
Mayor Ireland and Aspen City Council
/1/.
Chris Bendon, Community Development Director \bVlWl
TO:
DATE OF MEMO:
September 17, 2007
MEETING DATE:
September 24, 2007 (cont. from August 27, 2007)
RE:
Dean Street Right-of-Way Vacation (Parcels 3 & 4 of Block 4,
Eames Addition) Public Hearing for Second Reading of
Ordinance No.24, Series of 2007
REQUEST OF COUNCIL: The request before City Council is to vacate a portion of the Dean
Street right-of-way that borders both the Timber Ridge Condominiums and the proposed Lodge
At Aspen Mountain PUD. The area of focus is shown highlighted in pink in Exhibit A. The City
Council has jurisdiction over the vacation of any public right-of-way and the process is
formalized by the adoption of an ordinance following a public hearing.
PREVIOUS COUNCIL ACTION: Portions of Dean Street (in this vicinity and further east)
have in the past, through vacation or court action, reverted to private ownership and are shown in
green in Exhibit A in the immediate area of the subject right-of-way. First reading of Ordinance
No. 24, Series of2007 was conducted on May 29,2007.
BACKGROUND: The area under consideration for vacation is land that City Council has
discussed as part of the Lodge At Aspen Mountain proposal. This pink area shown in Exhibit A
would be vacated and revert to ownership to Timber Ridge CondominiUlTIs. Normally when
right-of-way vacations are approved, the subject land is split down the middle, with adjoining
properties each taking ownership of half of the area. In this case, the Lodge At Aspen Mountain
will allow for "their share" to be transferred over to Timber Ridge. The site plan for the Lodge At
Aspen Mountain plans for the use of the proposed vacated area to be parking and landscaping for
the Timber Ridge, who historically, have used this portion of Dean Street.
DISCUSSION: This vacation proposal has been discussed as part ofthe evaluation of the Lodge
At Aspen Mountain proposal and has thus far not been an issue of City Council in terms of the
land use planning for the area. The subject vacation area is not proposed for actual development
as part of the Lodge At Aspen Mountain's development scenario, but the vacation has been
coupled by the applicant in their application as a way of clarifying the bigger picture for the
vicinity.
Page 1 00
A concern that has been raised regarding this area has been by the Trainor's Landing
Homeowner's Association. Timber Ridge Condominium Association supports the vacation. (See
letters in Exhibit B.) Trainor's Landing would like to see the subject right-of-way remain public.
This area has been and continues to be used primarily by the Timber Ridge owners and visitors
for over 35 years. On occasion, this Dean Street parking area is used by the public when
attending special events in the area.
The Timber Ridge Homeowner's Association have entered into an agreement with the Lodge At
Aspen Mountain and Lift I Condos to pursue this right-of-way vacation. All three of these parties
are in favor of the vacation.
The Lodge At Aspen Mountain proposal adds public parking to the revised South Garmisch
Street and Juan Street streetscape designs to accommodate spaces lost or rearranged by the
development.
The timing of the Dean Street vacation is such that it would be linked to the PUD development
proposal of the Lodge At Aspen Mountain review process. This 2nd Reading public hearing is
being timed to coordinate with the final 2nd Reading public hearings of the Lodge At Aspen
Mountain.
The Engineering Department has no objection to the action of vacating this subject section of
Dean Street.
FINANCIALIBUDGET IMPACTS: There are no financial impacts to the City of Aspen that
would go along with the vacation ofthe subject portion of Dean Street. Not vacating the right-of-
way and taking on maintenance could have cost for additional operation costs of the Street
Department. The City of Aspen has not maintained this right-of-way and through the years, as the
Timber Ridge Homeowner's Association has purchased gravel, graded the parking, provided
snowplowing, and enforced parking themselves for parking. This has been a benefit to the City of
Aspen by not having the responsibility to maintain this area.
ENVIRONMENTAL IMPACTS: Parking already exists on this portion of Dean Street with a
permeable surface of dirt and gravel. Nine parking spaces currently exist and Timber Ridge does
not intend to expand the parking area or reconfigure the lot. Options for reconfiguration or
changes are limited due to large trees that delineate the usable area. The existing landscaping
(about 25 feet along the north side of the right-of-way, adjacent to the Timber Ridge building)
would be kept in place. At this time, there is no proposal for the parking area to be paved
causing the need for storm water planning for the water collected on an impervious surface. In
some ways, paving would serve to cut down on the existing dust and silt run off from the
dirt/gravel surface.
RECOMMENDED ACTION: If the Lodge at Aspen Mountain project is approved by City
Council, Staff recommends that the City Council approve the vacation of the subject right-of-way
of Dean Street. The land area does not contain public utilities and the area has for decades been
out of public use other than sporadic parking associated with public events. The Timber Ridge
Page2of3
Condominium (100 Dean Street) identifies its frontage as Dean Street, where its front door is
located. It seems appropriate to allow the property to revert to private ownership under tl1ese
circumstances and allow for continued parking use.
If the Lodge at Aspen Mountain project is not approved, staff recommends the City Council
not approve the vacation of Dean Street. The "townhomes" project relies on this public way for
access and vacating the public way would prohibit access to the previously approved project.
PROPOSED MOTION: "I move to approve Ordinance No. 24, Series of 2007, upon second
reading, vacating a portion of the Dean Street right-of-way as described in the ordinance."
ALTERNATIVE MOTION: "I move to deny Ordinance No. 24, Series of2007."
CITY MANAGER COMMENTS:
ATTACHMENTS:
Exhibit A:
Exhibit B:
Lift One Boundary Adjustment Plat (showing proposed vacation areas)
Letters from I.) Trainor's Landing Homeowner's Association (Denis Murray,
3/26/07) and 2.) Timber Ridge Condominium Association (David Ellis, 3/20/07)
Page3 of3
ORDINANCE NO. 24
(Series of 2007)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO
VACATE A PORTION OF DEAN STREET IN THE CITY OF ASPEN, PITKIN COUNTY,
COLORADO.
WHEREAS, the Aspen Land Fund II, LLC c/o Centurion Partners, LLC has petitioned the
City of Aspen to vacate a portion of Dean Street between E. Durant and Juan Streets between
Blocks 4 and 6, Eames Addition to the City of Aspen; and
WHEREAS, the right-of-ways or portions thereof proposed to be vacated are located
entirely within the corporate limits of the City of Aspen; and
WHEREAS, the Right-of-Way Vacation Plat and legal description, appended hereto as
Exhibit A has been reviewed by the Community Development Department and City Engineer and
they have made a determination that the exhibit complies in all respects with the City's Public
Rights-of-ways Vacation Policies and the land proposed to be vacated is eligible for vacation
pursuant to said policies; and
WHEREAS, the proposed vacation will not leave any land adjoining the same without a
means of access over an established public right-of-way connecting such lands to an established
public street.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO:
Section 1.
That the portion of Dean Street between E. Durant and Juan Streets, described as Parcel 3
and Parcel 4, between Blocks 4 and 6, Eames Addition to the City of Aspen, and depicted on
Exhibit A appended hereto and by this reference incorporated herein, shall be, and the same hereby
is vacated subject to the conditions set forth below.
Ord. No. 24, Series of 2007,
Page I
Section 2.
That the petitioners file a final street vacation map, suitable for recordation, with the
Community Development Department within 90 days of final approval of the vacation.
Section 3.
That ownership and title to the lands so vacated shall vest as provided in and by Section 43-
2-302. C.R.S.
Section 4.
That the City Clerk be and hereby is directed, upon the adoption of this ordinance, to record
a copy of this ordinance in the Office of the Pitkin County Clerk and Recorder.
Section 5.
That the City Engineer be and hereby is directed, upon the adoption of this ordinance, to
make all corrections necessary to the Official Map of the City of Aspen.
Section 6.
That if any section, subsection, sentence, clause, phrase or portion of this ordinance is for
any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall
be deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
Section 7.
That this ordinance shall not have any effect on existing litigation and shall not operate as
an abatement of any action or proceeding now pending under or by virtue of the ordinances
amended as herein provided, and the same shall be construed and concluded under such priore
ordinances.
Ord. No. 24, Series of2007,
Page 2
A public hearing on the ordinance shall be held on June 25, 2007, in the City Council
Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the 29th day of May, 2007.
Helen Kalin Klanderud, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
FINALLY adopted, passed and approved this
day of
2007.
Michael C. Ireland, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
Ord. No. 24, Series of 2007,
Page 3
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P76
Timber Ridge Condominium Association
100 East Dean. Street, 2F
Aspen, CO 81611
March 20, 2007
?-SDen C'l Council
IjG S. G21en.a St.
?--5?eil, CO n611 '
~Re: ~od.ge "t _.\spen Mountain '
;;'-01 Scbrnission Publlc Healing
Dee.; Mayor md Council Member,:
Tcis letter is beb.g submitted for the March 26 continued public hearing on the Lodge at
As~,t:l MOllil";" to supplement oral co=ents made at the initial March 12, 2007 public
he2-rL""lg.
Over ll1, last several years John Sarpa and the Lodge design team have worked with
TUI'-ber Riege to address o'Wners' concerns about views, setbacks, parking and
Imdseaping. These efforts have resulted in substantial improvements to the project and a
reduction in the impacts.
Tne Timber Ridge Condominium Association supports the Lodge at Aspen Mountain
Final Submission, as modified, which incorporates the conditions of conceptual approval
2-ciopted by Council. Specific conditiO!l3 of approval relevant to Timber Ridge include 1)
preservation. of view planes through the current CIchitecturafmassing and rpoflines, 2) a
site plan that provides for no east-west overlap between the multi-story portion of the
Lo:ige and the Timber Ridge building and 3) t.'1e vacation ofllie Dean St. right of way. '
In COD.clusiou the Timber Ridge Coudornillium Association urges Council to approve the
Lodge at Aspen Mountain Final Submission as presented in the current ordinance and
incorporate the vacation of the Dean Street right of way.
. '
Yours truly,
j;)~uL-
David Ellis, President
Timber Ridge Condornillium Association
Exh\~\-\- ~ .'
-~~~
f
P160
3/26/07
City cf .-I.spen City COlmcil Members and Mayor
City Hall
130 Sou6 Galena Street
A5pen Co.8l611
Deu Mayor Klande11ld and Aspen City Council Members,
This letter is on behalf of the Trainor's Landing Homeo'l'<"!lers Association
and the R.O. residents of the Barbee FamilyPUD.We would Eke to voice
our concerns in regard to the proposed Lodge at Aspen Mou.."lT,in md the
negative impacts the proposed Lodge will have on .our neighborhood.
Weare apposed to the elimination of as many as 25 on street parking spaces
in the three block area of Juan, Gannish, and Defu"le Streets dizectly adjacent
to our subdivision. These spaces represent a large portion of me av?ilable
on street parking in the B parking zone where we reside.
We oppose tile vacatiO!l of Deane Street as proposed by iJ;js new
development We do not believe it is integral to the project and will not
adversely aff~ct the project in any way if the vacation is denied.. A10ng with
ounequest for the Council to deny the vacation of De,-,-,e Street we are
as4ngthat the developer provide an improved iil.tersectioIl at tee comer of
Durant aad Gannish Streets. We hope to slow traffic 2..."ld eliminate the
confusion that is already occtlIIing at this intersection.
Thank you for your conSideration of this request.
penis Murray
President
Trainor's Landing Homeowners Association
J--/J~
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~Kq.
MEMORANDUM
"'tic,
TO:
Mayor Ireland and Aspen City Council
FROM:
Chris Bendon, Community Development Director
e/Am
RE:
Amendment to Commercial Core Moratorium.
Second reading of Ordinance No. 37, Series of 2007.
DATE:
September 24, 2007
SUMMARY:
Ordinance No. 51, Series of 2006, established a temporary moratorium on the issuance of
building permits in the Commercial Core Zone District, and was adopted on December 12,
2006. This moratorium was extended through the adoption of Ordinance No. 26, Series
2007, and is currently set to expire December 12, 2007.
The moratorium prohibits the Community Development Department from issuing building
permits for properties in the Commercial Core (CC) Zone District ifthe effect of the building
permit will change the profile or intensity of the use of the property.
The Mill Street Plaza building is located in the Commercial Core Zone District on the comer
of Mill Street and Hopkins Avenue. The comer of the building is currently occupied by the
Orand Hyatt timeshare sales office. This use (office) is no longer allowed on the ground
floor of Commercial Core buildings. The timeshare office was a pre-existing condition when
the ground-floor office prohibition was adopted and is considered a grandfathered use.
The owner, M&W Properties, would like to replace the timeshare office, in part, with a
retailer - the J-Crew - and an adjacent restaurant - Cache Cache. This conversion is
prohibited by the moratorium. However, Staff believes that the proposed change in tenancy
is desirable and could be considered an improvement in keeping with the spirit and intent of
the moratorium ordinance. Office use was eliminated as a ground floor use in part due to this
specific timeshare office replacing the former retail tenant. Recovering this space as a retail
space would eliminate a non-conforming use and improve the vitality, tourist experience, and
economic strength of the downtown retail district. Staff is recommending a change to the
moratorium to exempt this type oftenancy conversion (office to retail).
RECOMMENDATION:
Staffrecommends adoption of Ordinance No. 37, Series of2007, upon second reading.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION: (all motions must be made in the positive)
"I move to approve Ordinance No. _, Series of 2007, modifying the Commercial Core
moratorium."
I
ORDINANCE NO. 37
(Series of 2007)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, AMENDING A TEMPORARY MORATORIUM ADOPTED
PURSUANT TO ORDINANCE NUMBER 51, SERIES OF 2006, AND AS AMEDED
PURSUANT TO ORDINANCE NO.2, SERIES OF 2007, AND AS AMENDED
PURSUANT TO ORDINANCE NO. 26, SERIES OF 2007.
WHEREAS, the City of Aspen (the "City") is a legally and regularly created,
established, organized and existing municipal corporation under the provisions of Article
XX of the Constitution of the State of Colorado and the home rule charter of the City (the
"Charter"); and
WHEREAS, the City of Aspen currently regulates land uses within the City limits
in accordance with Chapter 26.104 et seq. of the Aspen Municipal Code pursuant to its
Home Rule Constitutional authority and the Local Government Land Use Control Enabling
Act of 1974, as amended, SS29-20-101, et seq. C.R.S; and
WHEREAS, the City Council of the City of Aspen enacted a temporary
moratoriwn pursuant to Ordinance Nwnber 51, Series of 2006, as amended pursuant to
Ordinance Nwnber 2, Series of 2007, and Ordinance No. 26, Series of2007; and,
WHEREAS, the Community Development Department recommended and
amendment to the types of development activity exempt from the provisions of the
moratoriwn - specifically building activity replacing a ground floor office use to a retail use;
and,
WHEREAS, the Aspen City Council has reviewed and considered the proposed
amendment, has reviewed and considered the recommendation of the Community
Development Director, and has taken and considered public comment at a public hearing;
and,
WHEREAS, the City Council finds the application meeting or exceeding all
applicable standards of the land use code of the City of Aspen Municipal Code and that the
approval of the proposal is consistent with the goals and elements of the Aspen Area
Community Plan; 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 COUNCIL OF
THE CITY OF ASPEN, COLORADO, THAT:
Section 1 - Chanees to Moratorium:
Ordinance Nwnber 51, Series of 2006, as amended pursuant to Ordinance Nwnber 2, Series
of 2007, and Ordinance No. 26, Series of 2007, shall continue in its full force and effect and
nothing in this Ordinance shall be construed to alter the substantive content of Ordinances
51, 2, and 26, except as follows:
. The Community Development Director shall exempt from the provisions of this
moratoriwn building permit applications that replace, in whole or in part, basement
Ordinance No. 37, Page I
Series 2007
or ground floor office space with restaurant or retail use.
Section 2:
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:
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall
be deemed a separate, distinct and independent provision and shall not affect the validity of
the remaining portions thereof.
Section 4:
The City Clerk is directed, upon the adoption of this ordinance, to record a copy of this
ordinance in the office of the Pitkin County Clerk and Recorder.
Section 4:
A public hearing on the Ordinance shall be held on the 24th day of September, 2007, at 5:00
in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen (15) days prior to
which hearing a public notice of the same shall be published in a newspaper of general
circulation within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 20th day of August, 2007.
Michael C. Ireland, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
FIN ALL Y adopted, passed and approved this
day of
,2007.
Michael C. Ireland, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
Approved as to form:
John Worcester, City Attorney
Ordinance No. 37,
Series 2007
Page 2
MEMORANDUM
VI" "
TO:
TURU:
FROM:
RE:
Mayor Ireland and Aspen City Council
Chris Bendon, Community Development Director
Jennifer Phelan, Deputy Planning Directc()f'
Jerome Professional Building (201 N, Mill Street)
Subdivision and Extension of Vested Property Rights Review
2nd Reading of Ordinance No. 25, (Series 2007) - "earinl!
Continuation
MEETING
DATE: September 24,2007
SUMMARY:
In light of the Lodge at Aspen Mountain being scheduled onto the agenda of September
24th, staff is recommendin~ that the public hearing on the Jerome Professional Building
be continued to October 9t . The Applicant is aware of and expecting the continuation to
be heard on the 9th.
RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE):
"I move to continue the public hearing on Ordinance No. 25, Series of 2007, to October
9,2007."
CITY MANAGER COMMENTS:
^--....._-_.~--~'".~~-~~'-----.----,_....----,-".
9{1f
Hotel
FTE Count for
Number of Rooms, Hotel Rooms
Employees per
Room
Lodge at Asyen Mountain 73' 153' 2.10
-~._-
Hote1100Q. Seattle WA 120 142 1.18
.- ----
Willows.Lodge. Woodinville WA 84 90 1.07
-. , - - -
Four Seasons Jackson Hole 124 200 1.61
Four Seasons Whistler 273 385 1.41
.-
Hotel Jerome ..- 93.:....- 120, 1.29
----
Little Nell 92 210 2.28
-
St. Regis Aspel1. 179 239 1.34
.-
The Fairmont Chateau Whistler 550 600 1.09
The Grand America Hotel Salt Lake 775 600 0.77
- --
The Lod e at Vail 165. 290 1.76
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