The URL can be used to link to this page

Home My WebLink Aboutagenda.council.regular.20180529 CITY COUNCIL AGENDA May 29, 2018 5:00 PM I. Call to Order II. Roll Call III. Scheduled Public Appearances IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please limit your comments to 3 minutes) V. Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Amendments c) City Manager's Comments d) Board Reports VI. Consent Calendar (These matters may be adopted together by a single motion) a) Resolution #83, Series of 2018, Approval of Stipulations in Maroon and Castle Creek Conditional Water Storage Rights Diligence Cases (16CW3128 and 16CW3129) b) Resolution #78, Series of 2018 - Vertiba Building Permit Management Contract Extension c) Resolution #81, Series of 2018, Aspen Mountain Tank to Little Nell Pump Station Waterline Request for Contract Approval d) Resolution #85, Series of 2018 - Steep terrain mower e) Resolution #82 Series of 2018- Aquatic Score board f) Minutes - May 14, 2018 VII. Notice of Call-Up VIII. First Reading of Ordinances IX. Public Hearings a) Ordinance #12, Series of 2018 - Spring Budget - Component Unit Funds: APCHA, Smuggler and Truscott Phase II b) Ordinance #7, Series of 2018 - Spring Supplemental Budget c) Ordinance #14, Series of 2018 - Code Amendment - Harassing Wildlife X. Action Items XI . Executive Session a ) C.R.S. 24-6-102 (a) The purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; (b) Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions and (e) Determining positions P1 relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators regarding potential property acquisition and litigation update regarding Goldenberg and Goshorn V. The City of Aspen. XII. Adjournment Next Regular Meeting June 11, 2018 COUNCIL’S ADOPTED GUIDELINES · Make Decisions Based on 30 Year Vision · Tone and Tenor Matter · Remember Where We’re Living and Why We’re Here COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. P2 ASPEN CITY COUNCIL WORK SESSION MEMORANDUM TO: Mayor and City Council FROM: Margaret Medellin, Utilities Portfolio Manager THRU: Jim True, City Attorney; Scott Miller, Director of Public Works; Dave Hornbacher, Director, Utilities and Environmental Initiatives; DATE OF MEMO: May 24, 2018 MEETING DATE: May 29, 2018 RE: Resolution #83, Series of 2018, Approval of Stipulations in Maroon and Castle Creek Conditional Water Storage Rights Diligence Cases (16CW3128 and 16CW3129) SUMMARY: On October 10, 2016, Council passed Resolution #141, Series of 2016 directing staff to implement certain water management measures to improve resiliency against future climate change impacts and other system changes while continuing efforts to maintain diligence for two conditional water storage rights on Castle and Maroon Creeks. Resolution #83, Series of 2018 is presented to Council today for adoption of Stipulations with five of the opposers in these two water rights cases, and direction to move forward in accordance with the stipulations (see Attachment K). BACKGROUND: The City Utilities is responsible for assuring Aspen has a safe, legal and reliable water supply, now and into the future. To this end, the City has developed an integrated water supply system. As a part of this integrated water supply system, since 1965 the City of Aspen has held and maintained conditional water rights for reservoirs on Maroon and Castle Creeks. The Aspen community will face significant challenges maintaining its water supply as we experience changing precipitation and runoff patterns, and possible increased fire, drought, change in runoff timing and lower snowpack levels due to climate change. Storage reservoirs, that can retain water from season to season and year to year, can provide water supplies even during times of shortage. Without water storage, the City will have no meaningful back up if surface supplies are greatly reduced. To mitigate this risk, the City has included future reservoir storage in its long-range plans. As directed, staff filed due diligence applications in the water court for these water rights. Subsequently, ten parties filed statements of opposition to the two water court cases. PREVIOUS COUNCIL ACTION: Since Council adopted Resolution #141, Series of 2016, directing staff to file diligence applications on the Maroon Creek and Castle Creek conditional storage rights, Council has continued to provide direction to staff on negotiations with the opposers to both water rights cases. P3 VI.a DISCUSSION: As a result of negotiations, staff and some opposers have reached agreement on these water rights cases. Each of attached Stipulations (See Attachments A - I) has been approved by the signing opposing party. The stipulations set forth the agreements between the City and the stipulating opposers. Please note that these stipulations require that all opposers in each case must reach stipulations with the City or none of the stipulations will be valid in that case. The stipulations include the signing opposer’s agreement to entry of a diligence decree in the pending case, and the City’s agreement to file a change application in the water court to relocate Castle Creek Reservoir and the Maroon Creek Reservoir water rights to one or more specified new locations. Moreover, Aspen agrees that it will forego the right to store water pursuant to these water rights at the original decreed locations. The total amount of water that may be stored pursuant to the Maroon Creek storage right will be 4,567 acre-feet, and the amount of water that may be stored annually pursuant to Castle Creek storage right will be reduced to 8,500 acre-feet. The total amount that can be stored in any year under both rights combined will not exceed 8,500 acre-feet. Staff continues to negotiate with the remaining opposers and hopes to reach stipulations with these parties as well. COUNCIL DIRECTION REQUESTED: Staff requests that Council consider the adoption of Resolution #83, Series of 2018. This Resolution will authorize the City’s attorneys to execute the attached stipulations on behalf of the City and proceed in accordance with the provisions of the stipulations. ENVIRONMENTAL IMPACTS: The City is committed to reducing its footprint (carbon and water) and fighting climate change, but even with this effort and action, the City recognizes that it is best practice to plan for a future that looks very different than today. The City’s efforts to develop water storage is necessary to ensure the City’s resiliency. BUDGET IMPACT: Funds to support the work associated with Aspen’s Water Future was included in the 2018 budget. CITY MANAGER COMMENTS: ATTACHMENTS: Attachment A – Stipulation with Wilderness Workshop (Castle Creek case) Attachment B – Stipulation with Wilderness Workshop (Maroon Creek case) Attachment C – Stipulation with Western Resource Advocates (Castle Creek case) Attachment D – Stipulation with Western Resource Advocates (Maroon Creek case) Attachment E – Stipulation with Asp Properties LLC (Castle Creek case) Attachment F – Stipulation with Double R Creek Ltd. (Castle Creek case) Attachment G – Attachments to Maroon Creek Stipulations Attachment H – Attachments to Castle Creek Stipulations Attachment I – Stipulation with Pitkin County (Castle Creek case) Attachment J – Stipulation with Pitkin County (Maroon Creek case) Attachment K – Resolution #83, Series of 2018 P4 VI.a Resolution # 083 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AUTHORIZING THE CITY’S ATTORNEYS TO EXECUTE STIPULATIONS WITH OPPOSERS TO THE DILIGENCE CASES FOR CONDITIONAL WATER STORAGE RIGHTS ON CASTLE AND MAROON CREEKS ON BEHALF OF THE CITY OF ASPEN, COLORADO. Whereas, the City holds conditional water rights for the Maroon Creek Reservoir and the Castle Creek Reservoir, both of which were decreed in 1971, with 1965 appropriation dates; and Whereas, the purpose of conditional decrees like these conditional storage rights is to allow the City to proceed to perfect the water rights with the decreed priority dates, thereby allowing planning and development to proceed in an orderly progression with the assurance of decreed water rights prior to substantially investing in costly projects; and Whereas, the City has maintained these conditional water rights at the intervals required by law; and Whereas, the City has utilized an integrated water supply development approach both before and since the 1980 Water Management Plan, and these reservoirs have been included as part of the planning and development of the City’s integrated water supply system; and Whereas, the City, as a municipal water provider, must plan responsibly for the future water needs of its customers, and must develop a legal, reliable water supply to meet those demands; and Whereas, Colorado law and the diligence decrees heretofore entered for these conditional storage rights confirm that the City’s work on other features of its integrated water supply system demonstrates diligence in the development of these conditional water rights; and Whereas, the City has determined that it is responsible and prudent to continue to develop needed water rights and supplies, as part of its integrated water supply system; and P5 VI.a Whereas, most recently the City filed due diligence applications for these conditional water rights with the Colorado Water Court on October 31, 2016, in Water Court Case Nos. 16CW3128 and 16CW3129; and Whereas, ten parties entered statements of opposition to the City’s applications for due diligence on the rights; and Whereas, at Council direction, staff and its attorney have diligently negotiated with opposers to seek settlement in these cases; and Whereas, Wilderness Workshop, Western Resource Advocates, Asp Properties LLC, Double R Creek LLC, and Pitkin County opposers who have diligently participated in negotiations and provided input for the successful development of solutions that meet the needs of each party, have agreed to stipulations in settlement of their respective concerns regarding these cases; and Whereas, staff and its attorney have diligently negotiated with the remaining opposers to seek settlement in regarding their opposition and staff and its attorney believe that stipulations substantially similar to the attached stipulations will be entered with the remaining opposers. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby directs staff to: Authorize the City’s attorneys to execute the stipulations with Wilderness Workshop, Western Resources Advocates, Asp Properties LLC, Double R Creek Ranch LLC and Pitkin County, in the forms attached hereto and to execute the stipulations with the remaining opposers in forms substantially the same as those attached hereto, subject to final approval of the City Manager, City Attorney and the City’s water counsel. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 29th day of May, 2018. Steven Skadron, Mayor I, Linda Manning, 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, May 29, 2018. P6 VI.a Linda Manning, City Clerk P7 VI.a DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 ▲ COURT USE ONLY ▲ IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS of the CITY OF ASPEN, COLORADO, IN PITKIN COUNTY Attorneys for Applicant Cynthia F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein & Covell, P.C. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com Attorneys for Opposer Wilderness Workshop Bart Miller, No. 27911 Robert Harris, No. 39026 Western Resource Advocates 2260 Baseline Road, Suite 200 Boulder, CO 80302 (303) 444-1188; Fax: 303-786-8054 Bart.miller@westernresources.org Rob.harris@westernresources.org Case Number: 2016CW3129 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER WILDERNESS WORKSHOP Applicant, the City of Aspen (“Aspen”) and Opposer Wilderness Workshop (“Wilderness Workshop”) by and through their undersigned attorneys, hereby stipulate and agree as follows. 1. The water right for which diligence is sought in this case is the Castle Creek Reservoir conditional storage right decreed in Case No. CA 5884 on November 5, 1971, by the District Court, Garfield County, Colorado (“Castle Creek Reservoir Storage Right”). Wilderness Workshop hereby consents to the entry of a Decree regarding the Castle Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (“Proposed Decree”). Wilderness Workshop shall not protest, appeal or otherwise challenge any ruling or decree ultimately entered by the Water Court in this ATTACHMENT A P8 VI.a WW Stipulation and Agreement Case No. 2016CW3129 Page 2 2 matter, so long as its terms and conditions are no less restrictive on Aspen than those contained in the Proposed Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the “Final Decree.” 2. In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Castle Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (“Original Decreed Location”). Prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (“Change Application”), to change the location of the Castle Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or Moore Open Space, or any other location or locations the parties have agreed to in writing (“New Reservoir Sites”). The general location of each of the New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3128 (regarding Maroon Creek Reservoir). Aspen agrees that (1) the amount of storage sought pursuant to the Change Application will not exceed 8,500 acre-feet pursuant to the Castle Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Castle Creek Reservoir Storage Right, the Maroon Creek Reservoir Storage Right (also decreed in Case No. CA 5884), or any combination of such storage rights, will not exceed 8,500 acre-feet, and (3) the locations of such storage will not include locations other than the New Reservoir Sites. 3. Any storage reservoir that may be constructed to store the Castle Creek Reservoir Storage Right on Moore Open Space depicted on Exhibit B will be constructed as an underground storage structure. 4. Aspen will provide the Change Application to Wilderness Workshop for review no later than sixty (60) days before it is filed in the Water Court, in order to allow Wilderness Workshop to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Wilderness Workshop or any other Opposer within thirty (30) days of the date on which the Change Application is provided (“Notice Period”), Aspen will file the Change Application in substantially the form provided to Opposers. If Wilderness Workshop does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, Wilderness Workshop shall provide notice to Aspen within the Notice Period, identifying the specific provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and Wilderness Workshop shall cooperate in good faith to resolve their disagreement. 5. Wilderness Workshop, its agents, assigns or successors in interest will not oppose the Change Application, directly or indirectly, and will take no position regarding the allegations ATTACHMENT A P9 VI.a WW Stipulation and Agreement Case No. 2016CW3129 Page 3 3 therein. In addition, for a period of twenty (20) years from the date of entry of the Final Decree, Wilderness Workshop, its agents, assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Castle Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. Wilderness Workshop’s obligations under this paragraph apply only to proceedings and other matters specifically involving the Castle Creek Reservoir Storage Right. 6. Wilderness Workshop may fully participate in any environmental assessments, land use proceedings or other approval processes required for construction or operation of a reservoir(s) at any of the New Reservoir Sites, in which proceedings Wilderness Workshop may, without limitation, raise concerns about the environmental impacts associated with the construction and operation of such reservoir(s), including but not limited to potential impacts to riparian health, aquatic habitat, water quality, and to any wildlife migration corridor that may exist at the Cozy Point Ranch site, as well as any other matter relevant to those proceedings. 7. After the Change Application has been filed, Aspen will diligently pursue the Change Application to completion, provided, however, that Aspen may, at its discretion, withdraw the Change Application with prejudice in whole or in part, or amend the Change Application without Wilderness Workshop’s approval so long as (1) the amount of storage sought pursuant to the Change Application does not exceed 8,500 acre-feet pursuant to the Castle Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Castle Creek Reservoir Storage Right, the Maroon Creek Reservoir Storage Right (also decreed in Case No. CA 5884), or any combination of such storage rights, does not exceed 8,500 acre- feet, and (3) the locations of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without Wilderness Workshop’s approval. 8. Aspen may not divert the Castle Creek Reservoir Storage Right through the Salvation Ditch system to fill any of the New Reservoir Sites without prior written consent from the Salvation Ditch Company or pursuant to other legal authority. 9. If and to the extent the Change Application does not result in a final decree changing the location of storage of all of the Castle Creek Reservoir Storage Right as decreed by the Final Decree, Aspen will, within 120 days after entry of a final decree upon the Change Application, or other final order denying or dismissing the Change Application, in whole or in part, file appropriate pleadings to cancel the portion of the Castle Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said final decree or other order will be the decree or order following the outcome of the appeal.) The intent of this paragraph is that Aspen will relinquish any portion of the Castle Creek Reservoir Storage Right that is not transferred to one or more of the New Reservoir Sites pursuant to the Change Application, and Aspen will forego the right to store water pursuant to the Castle Creek Reservoir Storage Right at the Original Decreed Location. ATTACHMENT A P10 VI.a WW Stipulation and Agreement Case No. 2016CW3129 Page 4 4 10. If Aspen does not file a Change Application prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will not seek a finding of reasonable diligence or to make absolute the Castle Creek Reservoir Storage Right. 11. Aspen and Wilderness Workshop agree that this Stipulation is effective only upon execution of the same or a substantially similar Stipulation (including approval of the same or a substantially similar form of the Proposed Decree) by all parties to this case. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re-refer the above-captioned case to the Water Judge, Water Division No. 5. Following the Order of Re-referral, Aspen will file the fully-executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval the fully-executed Stipulations and for entry of a Final Decree that is substantially similar to, and no less restrictive on Aspen than the Proposed Decree. 12. The parties hereto shall bear their own costs and attorney fees. 13. This Stipulation shall benefit and be binding upon the heirs, successors and assigns of the undersigned parties. 14. This Stipulation supersedes and controls all prior written and oral agreements and representations of the parties regarding the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants and warranties concerning the subject matter hereof are merged herein. This Stipulation may not be modified except in a writing signed by both parties. 15. This Stipulation may be executed using counterpart signature pages with the same force and effect as if both parties had signed on the same signature page. Electronically generated copies of this Stipulation signed by the parties shall be treated as originals. 16. Copies of the Change Application, Wilderness Workshop’s comments thereon and the final decree on the Change Application shall be provided to the party to whom directed at the address set forth below or at such other address as may be provided by a party by notice pursuant to this paragraph unless some other form of notice is expressly agreed to in writing by both parties. FOR ASPEN: City Attorney City of Aspen 130 S. Galena Street Aspen CO 81611 ATTACHMENT A P11 VI.a WWStipulationandAgreementCaseNo.2016CW3129Page5WithcopytoCynthiaCovellandAndreaBensonAlperstein&CovellP.C.1600Broadway,Suite1070DenverCO80202FOROPPOSERWILDERNESSWORKSHOP:WillRoushConservationDirectorWildernessWorkshopP.O.Box1442Carbondale,CO81623(970)963-3977WithcopytoBart MillerandRobertHarris:WesternResource Advocates2260BaselineRd.,Ste.200Boulder,CO8030217.Wilderness Workshopwillremainapartytothis caseforthepurposeofensuringthat anyFinalDecreeenteredhereinisconsistentwith thisStipulation.18.ThepartiesacknowledgeandrepresenttooneanotherthatallproceduresnecessarytovalidlycontractandexecutethisStipulationhave beenperformed,andthatthepersonssigningforeachpartyaredulyauthorizedtodoso.19.ThepartiesdesirethatthisStipulationbeapprovedbyandenteredasanOrderoftheCourt.Dated:______________________,2018.ALPERSTEIN&COVELL,P.C.WESTERNRESOURCEADVOCATESBy:__________By:1•f4------CynthiaF.Covell,#10169RobertHarris,#39026ATTORNEYSFORATTORNEYSFORWILDERNESSCITYOFASPENWORKSHOP5ATTACHMENT AP12VI.a DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 ▲ COURT USE ONLY ▲ IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS of the CITY OF ASPEN, COLORADO, IN PITKIN COUNTY Attorneys for Applicant Cynthia F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein & Covell, P.C. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com Attorneys for Opposer Wilderness Workshop Bart Miller, No. 27911 Robert Harris, No. 39026 c/o Western Resource Advocates 2260 Baseline Road, Suite 200 Boulder, CO 80302 (303) 444-1188; Fax: 303-786-8054 Bart.miller@westernresources.org Rob.harris@westernresources.org Case Number: 2016CW3128 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER WILDERNESS WORKSHOP Applicant, the City of Aspen (“Aspen”) and Opposer Wilderness Workshop (“Wilderness Workshop”) by and through their undersigned attorneys, hereby stipulate and agree as follows. 1. The water right for which diligence is sought in this case is the Maroon Creek Reservoir conditional storage right decreed in Case No. CA5884 on November 5, 1971, by the District Court, Garfield County, Colorado (“Maroon Creek Reservoir Storage Right”). Wilderness Workshop hereby consents to the entry of a Decree regarding the Maroon Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (“Proposed Decree”). Wilderness Workshop shall not protest, appeal or ATTACHMENT B P13 VI.a WW Stipulation and Agreement Case No. 2016CW3128 Page 2 2 otherwise challenge any ruling or decree ultimately entered by the Water Court in this matter, so long as its terms and conditions are no less restrictive on Aspen than those contained in the Proposed Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the “Final Decree.” 2. In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Maroon Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (“Original Decreed Location”). Prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (“Change Application”), to change the location of the Maroon Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or Moore Open Space, or any other location or locations the parties have agreed to in writing (“New Reservoir Sites”). The general location of each of the New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3129 (regarding Castle Creek Reservoir). Aspen agrees that (1) the amount of storage sought pursuant to the Change Application will not exceed 4,567 acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right, the Castle Creek Reservoir Storage right (also decreed in Case No. CA 5884), or any combination of such storage rights, will not exceed 8,500 acre-feet, and (3) the locations of such storage will not include locations other than the New Reservoir Sites. 3. Any storage reservoir that may be constructed to store the Maroon Creek Reservoir Storage Right on Moore Open Space depicted on Exhibit B will be constructed as an underground storage structure. 4. Aspen will provide the Change Application to Wilderness Workshop for review no later than sixty (60) days before it is filed in the Water Court, in order to allow Wilderness Workshop to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Wilderness Workshop or any other Opposer in this case within thirty (30) days of the date on which the Change Application is provided (“Notice Period”), Aspen will file the Change Application in substantially the form provided to Wilderness Workshop. If Wilderness Workshop does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, Wilderness Workshop shall provide notice to Aspen within the Notice Period, identifying the specific provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and Wilderness Workshop shall cooperate in good faith to resolve their disagreement. ATTACHMENT B P14 VI.a WW Stipulation and Agreement Case No. 2016CW3128 Page 3 3 5. Wilderness Workshop, its agents, assigns or successors in interest will not oppose the Change Application, directly or indirectly, and will take no position regarding the allegations therein. In addition, for a period of twenty (20) years from the date of entry of the Final Decree, Wilderness Workshop, its agents, assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Maroon Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. Wilderness Workshop’s obligations under this paragraph apply only to proceedings and other matters specifically involving the Maroon Creek Reservoir Storage Right. 6. Wilderness Workshop may fully participate in any environmental assessments, land use proceedings or other approval processes required for construction or operation of a reservoir(s) at any of the New Reservoir Sites, in which proceedings Wilderness Workshop may, without limitation, raise concerns about the environmental impacts associated with the construction and operation of such reservoir(s), including but not limited to potential impacts to riparian health, aquatic habitat, water quality, and to any wildlife migration corridor that may exist at the Cozy Point Ranch site, as well as any other matter relevant to those proceedings. 7. After the Change Application has been filed, Aspen will diligently pursue the Change Application to completion, provided, however, that Aspen may, at its discretion, withdraw the Change Application with prejudice in whole or in part, or amend the Change Application without Wilderness Workshop’s approval so long as (1) the amount of storage sought pursuant to the Change Application does not exceed 4,567 acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right, the Castle Creek Reservoir Storage right (also decreed in Case No. CA 5884), or any combination of such storage rights, does not exceed 8,500 acre-feet, and (3) the locations of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without Wilderness Workshop’s approval. 8. Aspen may not divert the Maroon Creek Reservoir Storage Right through the Salvation Ditch system to fill any of the New Reservoir Sites without prior written consent from the Salvation Ditch Company or pursuant to other legal authority. 9. If and to the extent the Change Application does not result in a final decree changing the location of storage of all of the Maroon Creek Reservoir Storage Right as decreed by the Final Decree, Aspen will, within 120 days after entry of a final decree upon the Change Application, or other final order denying or dismissing the Change Application, in whole or in part, file appropriate pleadings to cancel the portion of the Maroon Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said final decree or other order will be the decree or order following the outcome of the appeal.) The intent of this paragraph is that Aspen will relinquish any portion of the Maroon Creek Reservoir Storage Right that is not transferred to one or more of the New Reservoir Sites ATTACHMENT B P15 VI.a WW Stipulation and Agreement Case No. 2016CW3128 Page 4 4 pursuant to the Change Application, and Aspen will forego the right to store water pursuant to the Maroon Creek Reservoir Storage Right at the Original Decreed Location. 10. If Aspen does not file a Change Application prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will not seek a finding of reasonable diligence or to make absolute the Maroon Creek Reservoir Storage Right. 11. Aspen and Wilderness Workshop agree that this Stipulation is effective only upon execution of the same or a substantially similar Stipulation (including approval of the same or a substantially similar form of the Proposed Decree) by all parties to this case. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re-refer the above-captioned case to the Water Judge, Water Division No. 5. Following the Order of Re-referral, Aspen will file the fully-executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval the fully-executed Stipulations and for entry of a Final Decree that is substantially similar to, and no less restrictive on Aspen than the Proposed Decree. 12. The parties hereto shall bear their own costs and attorney fees. 13. This Stipulation shall benefit and be binding upon the heirs, successors and assigns of the undersigned parties. 14. This Stipulation supersedes and controls all prior written and oral agreements and representations of the parties regarding the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants and warranties concerning the subject matter hereof are merged herein. This Stipulation may not be modified except in a writing signed by both parties. 15. This Stipulation may be executed using counterpart signature pages with the same force and effect as if both parties had signed on the same signature page. Electronically generated copies of this Stipulation signed by the parties shall be treated as originals. 16. Copies of the Change Application, Wilderness Workshop’s comments thereon and the final decree on the Change Application shall be provided to the party to whom directed at the address set forth below or at such other address as may be provided by a party by notice pursuant to this paragraph unless some other form of notice is expressly agreed to in writing by both parties. FOR ASPEN: City Attorney City of Aspen 130 S. Galena Street ATTACHMENT B P16 VI.a WWStipulationandAgreementCaseNo.2016CW3129Page5WithcopytoCynthiaCovellandAndreaBensonAlperstein&CovellP.C.1600Broadway,Suite1070DenverCO80202FOROPPOSERWILDERNESSWORKSHOP:WillRoushConservationDirectorWildernessWorkshopP.O.Box1442Carbondale,CO81623(970)963-3977WithcopytoBart MillerandRobertHarris:WesternResource Advocates2260BaselineRd.,Ste.200Boulder,CO8030217.Wilderness Workshopwillremainapartytothis caseforthepurposeofensuringthat anyFinalDecreeenteredhereinisconsistentwith thisStipulation.18.ThepartiesacknowledgeandrepresenttooneanotherthatallproceduresnecessarytovalidlycontractandexecutethisStipulationhave beenperformed,andthatthepersonssigningforeachpartyaredulyauthorizedtodoso.19.ThepartiesdesirethatthisStipulationbeapprovedbyandenteredasanOrderoftheCourt.Dated:______________________,2018.ALPERSTEIN&COVELL,P.C.WESTERNRESOURCEADVOCATESBy:__________By:1•f4------CynthiaF.Covell,#10169RobertHarris,#39026ATTORNEYSFORATTORNEYSFORWILDERNESSCITYOFASPENWORKSHOP5ATTACHMENT BP17VI.a DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 ▲ COURT USE ONLY ▲ IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS of the CITY OF ASPEN, COLORADO, IN PITKIN COUNTY Attorneys for Applicant Cynthia F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein & Covell, P.C. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com Attorneys for Opposer Western Resource Advocates Bart Miller, No. 27911 Robert Harris, No. 39026 Western Resource Advocates 2260 Baseline Road, Suite 200 Boulder, CO 80302 (303) 444-1188; Fax: 303-786-8054 Bart.miller@westernresources.org Rob.harris@westernresources.org Case Number: 2016CW3129 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER WESTERN RESOURCE ADVOCATES Applicant, the City of Aspen (“Aspen”) and Opposer Western Resource Advocates (“WRA”) by and through their undersigned attorneys, hereby stipulate and agree as follows. 1. The water right for which diligence is sought in this case is the Castle Creek Reservoir conditional storage right decreed in Case No. CA 5884 on November 5, 1971, by the District Court, Garfield County, Colorado (“Castle Creek Reservoir Storage Right”). WRA hereby consents to the entry of a Decree regarding the Castle Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (“Proposed Decree”). WRA shall not protest, appeal or otherwise challenge any ruling or decree ultimately entered by the Water Court in this matter, so long as its terms ATTACHMENT C P18 VI.a WRA Stipulation and Agreement Case No. 2016CW3129 Page 2 2 and conditions are no less restrictive on Aspen than those contained in the Proposed Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the “Final Decree.” 2. In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Castle Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (“Original Decreed Location”). Prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (“Change Application”), to change the location of the Castle Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or Moore Open Space, or any other location or locations the parties have agreed to in writing (“New Reservoir Sites”). The general location of each of the New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3128 (regarding Maroon Creek Reservoir). Aspen agrees that (1) the amount of storage sought pursuant to the Change Application will not exceed 8,500 acre-feet pursuant to the Castle Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Castle Creek Reservoir Storage Right, the Maroon Creek Reservoir Storage Right (also decreed in Case No. CA 5884), or any combination of such storage rights, will not exceed 8,500 acre-feet, and (3) the locations of such storage will not include locations other than the New Reservoir Sites. 3. Any storage reservoir that may be constructed to store the Castle Creek Reservoir Storage Right on Moore Open Space depicted on Exhibit B will be constructed as an underground storage structure. 4. Aspen will provide the Change Application to WRA for review no later than sixty (60) days before it is filed in the Water Court, in order to allow WRA to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by WRA or any other Opposer within thirty (30) days of the date on which the Change Application is provided (“Notice Period”), Aspen will file the Change Application in substantially the form provided to Opposers. If WRA does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, WRA shall provide notice to Aspen within the Notice Period, identifying the specific provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and WRA shall cooperate in good faith to resolve their disagreement. 5. WRA, its agents, assigns or successors in interest will not oppose the Change Application, directly or indirectly, and will take no position regarding the allegations therein . In addition, for a period of twenty (20) years from the date of entry of the Final Decree, WRA, its agents, ATTACHMENT C P19 VI.a WRA Stipulation and Agreement Case No. 2016CW3129 Page 3 3 assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Castle Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. WRA’s obligations under this paragraph apply only to proceedings and other matters specifically involving the Castle Creek Reservoir Storage Right. 6. WRA may fully participate in any environmental assessments, land use proceedings or other approval processes required for construction or operation of a reservoir(s) at any of the New Reservoir Sites, in which proceedings WRA may, without limitation, raise concerns about the environmental impacts associated with the construction and operation of such reservoir(s), including but not limited to potential impacts to riparian health, aquatic habitat, water quality, and to any wildlife migration corridor that may exist at the Cozy Point Ranch site, as well as any other matter relevant to those proceedings. 7. After the Change Application has been filed, Aspen will diligently pursue the Change Application to completion, provided, however, that Aspen may, at its discretion, withdraw the Change Application with prejudice in whole or in part, or amend the Change Application without WRA’s approval so long as (1) the amount of storage sought pursuant to the Change Application does not exceed 8,500 acre-feet pursuant to the Castle Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Castle Creek Reservoir Storage Right, the Maroon Creek Reservoir Storage Right (also decreed in Case No. CA 5884), or any combination of such storage rights, does not exceed 8,500 acre-feet, and (3) the locations of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without WRA’s approval. 8. Aspen may not divert the Castle Creek Reservoir Storage Right through the Salvation Ditch system to fill any of the New Reservoir Sites without prior written consent from the Salvation Ditch Company or pursuant to other legal authority. 9. If and to the extent the Change Application does not result in a final decree changing the location of storage of all of the Castle Creek Reservoir Storage Right as decreed by the Final Decree, Aspen will, within 120 days after entry of a final decree upon the Change Application, or other final order denying or dismissing the Change Application, in whole or in part, file appropriate pleadings to cancel the portion of the Castle Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said final decree or other order will be the decree or order following the outcome of the appeal.) The intent of this paragraph is that Aspen will relinquish any portion of the Castle Creek Reservoir Storage Right that is not transferred to one or more of the New Reservoir Sites pursuant to the Change Application, and Aspen will forego the right to store water pursuant to the Castle Creek Reservoir Storage Right at the Original Decreed Location. ATTACHMENT C P20 VI.a WRA Stipulation and Agreement Case No. 2016CW3129 Page 4 4 10. If Aspen does not file a Change Application prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will not seek a finding of reasonable diligence or to make absolute the Castle Creek Reservoir Storage Right. 11. Aspen and WRA agree that this Stipulation is effective only upon execution of the same or a substantially similar Stipulation (including approval of the same or a substantially similar form of the Proposed Decree) by all parties to this case. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re-refer the above- captioned case to the Water Judge, Water Division No. 5. Following the Order of Re - referral, Aspen will file the fully-executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval the fully-executed Stipulations and for entry of a Final Decree that is substantially similar to, and no less restrictive on Aspen than the Proposed Decree. 12. The parties hereto shall bear their own costs and attorney fees. 13. This Stipulation shall benefit and be binding upon the heirs, successors and assigns of the undersigned parties. 14. This Stipulation supersedes and controls all prior written and oral agreements and representations of the parties regarding the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants and warranties concerning the subject matter hereof are merged herein. This Stipulation may not be modified except in a writing signed by both parties. 15. This Stipulation may be executed using counterpart signature pages with the same force and effect as if both parties had signed on the same signature page. Electronically generated copies of this Stipulation signed by the parties shall be treated as originals. 16. Copies of the Change Application, WRA’s comments thereon and the final decree on the Change Application shall be provided to the party to whom directed at the address set forth below or at such other address as may be provided by a party by notice pursuant to this paragraph unless some other form of notice is expressly agreed to in writing by both parties. FOR ASPEN: City Attorney City of Aspen 130 S. Galena Street Aspen CO 81611 ATTACHMENT C P21 VI.a WRAStipulationandAgreementCaseNo.2016CW3129Page5WithcopytoCynthia CovellandAndrea BensonAlperstein&CovellP.C.1600Broadway,Suite1070DenverCO80202FOROPPOSERWRA:RobertHarrisSeniorStaffAttorneyWestern Resource Advocates2260BaselineRd.,Ste.200Boulder,CO 80302(720)763-371317.WRAwillremainapartytothiscaseforthepurposeofensuringthatanyFinal DecreeenteredhereinisconsistentwiththisStipulation.18.Theparties acknowledgeandrepresenttooneanotherthatallproceduresnecessarytovalidlycontractandexecutethisStipulationhavebeenperformed,andthatthepersonssigningfor eachpartyaredulyauthorizedto doso.19.Thepartiesdesirethat thisStipulationbeapprovedbyandenteredas anOrderoftheCourt.Dated:______________________,2018.ALPERSTEIN&COVELL,P.C.WESTERNRESOURCEADVOCATESBy:________________________By:____________________CynthiaF.Covell,#10169RobertHarris,#39026ATTORNEYSFORATTORNEYSFORWESTERNCITYOFASPENRESOURCEADVOCATES5ATTACHMENT CP22VI.a DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 ▲ COURT USE ONLY ▲ IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS of the CITY OF ASPEN, COLORADO, IN PITKIN COUNTY Attorneys for Applicant Cynthia F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein & Covell, P.C. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com Attorneys for Opposer Western Resource Advocates Bart Miller, No. 27911 Robert Harris, No. 39026 Western Resource Advocates 2260 Baseline Road, Suite 200 Boulder, CO 80302 (303) 444-1188; Fax: 303-786-8054 Bart.miller@westernresources.org Rob.harris@westernresources.org Case Number: 2016CW3128 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER WESTERN RESOURCE ADVOCATES Applicant, the City of Aspen (“Aspen”) and Opposer Western Resource Advocates (“WRA”) by and through their undersigned attorneys, hereby stipulate and agree as follows. 1. The water right for which diligence is sought in this case is the Maroon Creek Reservoir conditional storage right decreed in Case No. CA5884 on November 5, 1971, by the District Court, Garfield County, Colorado (“Maroon Creek Reservoir Storage Right”). WRA hereby consents to the entry of a Decree regarding the Maroon Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (“Proposed Decree”). WRA shall not protest, appeal or otherwise challenge any ruling or decree ATTACHMENT D P23 VI.a WRA Stipulation and Agreement Case No. 2016CW3128 Page 2 2 ultimately entered by the Water Court in this matter, so long as its terms and conditions are no less restrictive on Aspen than those contained in the Proposed Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the “Final Decree.” 2. In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Maroon Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (“Original Decreed Location”). Prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (“Change Application”), to change the location of the Maroon Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or Moore Open Space, or any other location or locations the parties have agreed to in writing (“New Reservoir Sites”). The general location of each of the New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3129 (regarding Castle Creek Reservoir). Aspen agrees that (1) the amount of storage sought pursuant to the Change Application will not exceed 4,567 acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right, the Castle Creek Reservoir Storage right (also decreed in Case No. CA 5884), or any combination of such storage rights, will not exceed 8,500 acre-feet, and (3) the locations of such storage will not include locations other than the New Reservoir Sites. 3. Any storage reservoir that may be constructed to store the Maroon Creek Reservoir Storage Right on Moore Open Space depicted on Exhibit B will be constructed as an underground storage structure. 4. Aspen will provide the Change Application to WRA for review no later than sixty (60) days before it is filed in the Water Court, in order to allow WRA to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by WRA or any other Opposer in this case within thirty (30) days of the date on which the Change Application is provided (“Notice Period”), Aspen will file the Change Application in substantially the form provided to WRA. If WRA does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, WRA shall provide notice to Aspen within the Notice Period, identifying the specific provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and WRA shall cooperate in good faith to resolve their disagreement. 5. WRA, its agents, assigns or successors in interest will not oppose the Change Application, directly or indirectly, and will take no position regarding the allegations therein . In addition, ATTACHMENT D P24 VI.a WRA Stipulation and Agreement Case No. 2016CW3128 Page 3 3 for a period of twenty (20) years from the date of entry of the Final Decree, WRA, its agents, assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Maroon Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. WRA’s obligations under this paragraph apply only to proceedings and other matters specifically involving the Maroon Creek Reservoir Storage Right. 6. WRA may fully participate in any environmental assessments, land us e proceedings or other approval processes required for construction or operation of a reservoir(s) at any of the New Reservoir Sites, in which proceedings WRA may, without limitation, raise concerns about the environmental impacts associated with the const ruction and operation of such reservoir(s), including but not limited to potential impacts to riparian health, aquatic habitat, water quality, and to any wildlife migration corridor that may exist at the Cozy Point Ranch site, as well as any other matter relevant to those proceedings. 7. After the Change Application has been filed, Aspen will diligently pursue the Change Application to completion, provided, however, that Aspen may, at its discretion, withdraw the Change Application with prejudice in whole or in part, or amend the Change Application without WRA’s approval so long as (1) the amount of storage sought pursuant to the Change Application does not exceed 4,567 acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right, the Castle Creek Reservoir Storage right (also decreed in Case No. CA 5884), or any combination of such storage rights, does not exceed 8,500 acre-feet, and (3) the locations of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without WRA’s approval. 8. Aspen may not divert the Maroon Creek Reservoir Storage Right through the Salvation Ditch system to fill any of the New Reservoir Sites without prior written consent from the Salvation Ditch Company or pursuant to other legal authority. 9. If and to the extent the Change Application does not result in a final decree changing the location of storage of all of the Maroon Creek Reservoir Storage Right as decreed by the Final Decree, Aspen will, within 120 days after entry of a final decree upon the Change Application, or other final order denying or dismissing the Change Application, in whole or in part, file appropriate pleadings to cancel the portion of the Maroon Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said final decree or other order will be the decree or order following the outcome of the appeal.) The intent of this paragraph is that Aspen will relinquish any portion of the Maroon Creek Reservoir Storage Right that is not transferred to one or more of the New Reservoir Sites pursuant to the Change Application, and Aspen will forego the right to store water pursuant to the Maroon Creek Reservoir Storage Right at the Original Decreed Location. ATTACHMENT D P25 VI.a WRA Stipulation and Agreement Case No. 2016CW3128 Page 4 4 10. If Aspen does not file a Change Application prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will not seek a finding of reasonable diligence or to make absolute the Maroon Creek Reservoir Storage Right. 11. Aspen and WRA agree that this Stipulation is effective only upon execution of the same or a substantially similar Stipulation (including approval of the same or a substantially similar form of the Proposed Decree) by all parties to this case. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re-refer the above- captioned case to the Water Judge, Water Division No. 5. Following the Order of Re - referral, Aspen will file the fully-executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval the fully-executed Stipulations and for entry of a Final Decree that is substantially similar to, and no less restrictive on Aspen than the Proposed Decree. 12. The parties hereto shall bear their own costs and attorney fees. 13. This Stipulation shall benefit and be binding upon the heirs, successors and assigns of the undersigned parties. 14. This Stipulation supersedes and controls all prior written and oral agreements and representations of the parties regarding the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants and warranties concerning the subject matter hereof are merged herein. This Stipulation may not be modified except in a writing signed by both parties. 15. This Stipulation may be executed using counterpart signature pages with the same force and effect as if both parties had signed on the same signature page. Electronically generated copies of this Stipulation signed by the parties shall be treated as originals. 16. Copies of the Change Application, WRA’s comments thereon and the final decree on the Change Application shall be provided to the party to whom directed at the address set forth below or at such other address as may be provided by a party by notice pursuant to this paragraph unless some other form of notice is expressly agreed to in writing by both parties. FOR ASPEN: City Attorney City of Aspen 130 S. Galena Street Aspen CO 81611 With copy to Cynthia Covell and Andrea Benson ATTACHMENT D P26 VI.a WRAStipulationandAgreementCaseNo.2016CW3128Page5Alperstein&CovellP.C.1600Broadway,Suite1070DenverCO80202FOROPPOSERWRA:RobertHarrisSeniorStaffAttorneyWesternResourceAdvocates2260BaselineRd.,Ste.200Boulder,CO80302(720)763-371317.WRAwillremainapartytothiscaseforthepurposeofensuringthatanyFinalDecreeenteredhereinisconsistentwiththisStipulation.18.ThepartiesacknowledgeandrepresenttooneanotherthatallproceduresnecessarytovalidlycontractandexecutethisStipulationhavebeenperformed,andthatthepersonssigningforeachpartyaredulyauthorizedtodoso.19.ThepartiesdesirethatthisStipulationbeapprovedbyandenteredasanOrderoftheCourt.Dated:_____________________,2018.ALPERSTEIN&COVELL,P.C.WESTERNRESOURCEADVOCATESBy:_____________By:(c.CynthiaF.CovelI,#10169RobertHarris,#39026ATTORNEYSFORATTORNEYSFORWESTERNCITYOFASPENRESOURCEADVOCATES5ATTACHMENT DP27VI.a Attachment E P28 VI.a P29 VI.a P30 VI.a P31 VI.a P32 VI.a P33 VI.a P34 VI.a P35 VI.a P36 VI.a P37 VI.a ^_ Date: 1 0/25 /201 6 City of Aspen WATER Geographic Inform ation Systems This map/drawing/image is a graphical representation of the featuresdepicted and is not a legal representation. The accuracy may change depending on the enlargement or reduction. Copyright 2016 City of Aspen GIS 0 2,500 5,0001,250 Feet 1 inch = 3,000 feetWhen printed at 8.5"x11" 4 Castle CreekReservoir <NOTES> Lege nd ^_Castle Creek Re se rvoir Roads P38VI.a ¬«82 ASPEN S m u g g l e r S m u g g l e r M o u n t a i nMountain R e d R e d M o u n t a i nMountain A s p e n A s p e n M o u n t a i nMountain A s p e nAspenHighla n d sHighlands B u t t e r m i l k B u t t e r m i l k M o u n t a i nMountain Vagneur Gravel Pit Woody Creek Aspen Golf Course Zoline Open SpaceMoore Open Space Cozy Point Ranch W oody CreekRoaring Fork River Maroon Creek Spr i ng Cr eekCastle Creek C o lli n s Cr e e k Hunter Creek Casaday Creek Bush Creek Willow CreekPine Creek Brush CreekQueens GulchRoaring Fork River80008500 9000 9 5 0 0 75001 00 0 01050011000 10000 8 0 0 0 1 0 5 0 0950085008000100009500800010000Legend Rivers and Streams State Highway 82 Potential Reservoir Sites ¥0 3,000 6,000Feet CITY OF ASPEN EXHIBIT B DATE:SCALE: Potential New Reservoir Sites Map 1 inch=3,000 feet2/15/2018 JOB NO. 0687.002.00 U:\0687 City of Aspen\0687.002 In-Situ Screening Study\GIS\Stipulation Exhibit B.mxd Thursday, February 15, 2018 09:53 AMTopography from USGS DEM, C.I. = 100 feetAerial Image from NAIP (2015) C o l o r a d o I n d e x M a pColorado I n d e x M a p AspenPitkin County, Colorado P39VI.a ATTACHMENT F P40 VI.a ATTACHMENT F P41 VI.a ATTACHMENT F P42 VI.a ATTACHMENT F P43 VI.a ATTACHMENT F P44 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 1 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO Garfield County Courthouse 109 8th Street, Suite 104 Glenwood Springs, CO 81601 970/945-5075 COURT USE ONLY CONCERNING THE APPLICATION FOR FINDING OF REASONABLE DILIGENCE OF THE CITY OF ASPEN in PITKIN COUNTY, COLORADO Case Number: 2017CW3129 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE OF THE WATER COURT (Castle Creek Reservoir) This matter comes before the Water Court upon the application of the City of Aspen, Colorado (“Applicant” or “Aspen”) for a finding of reasonable diligence. The Court, having reviewed the pleadings of the parties, the comments of the Division Engineer and response thereto and having become fully advised with respect to the subject matter of the Application hereby makes the following Findings of Fact, Conclusions of Law, Judgment and Decree of the Water Court (“Decree”). FINDINGS OF FACT 1. Applicant. The applicant is the City of Aspen, Colorado, c/o David Hornbacher, Utilities Director, 130 South Galena Street, Aspen, CO 81611, telephone, (970) 920-5110. Copies of all pleadings in this matter are to be delivered to Cynthia F. Covell and Andrea Benson, Alperstein & Covell P.C., 1600 Broadway, Suite 1070, Denver, CO 80202. 2. Application. The Application in this matter was filed by Aspen on October 31, 2016, and referred to the Water Referee for Water Division No. 5, State of Colorado by the Water Judge of said Court in accordance with Article 92, Chapter 37, of the Colorado Revised Statutes known as the Water Right Determination and Administration Act of 1969. The matter was re-referred to the Water Court on _________________________. Attachment G - Attachment to Castle Creek Stipulations P45 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 2 3. Notice and Jurisdiction. Timely and adequate notice of the pendency of these proceedings in rem was given in the manner provided by law. The Application was published in the Water Resume for Water Division 5 for October, 2016, and in the Grand Junction Daily Sentinel on November 20, 2016, the Aspen Times Weekly on November 24, 2016 and the Rifle Citizen Telegraph on November 24, 2016. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected hereby, irrespective of whether those persons or property owners have appeared. None of the lands or water rights involved in this case is within the boundaries of any designated groundwater basin. 4. Statements of Opposition and Stipulation. Timely statements of opposition were filed by Double R Creek Limited, Asp Properties LLC, Wilderness Workshop, Western Resource Advocates, American Rivers, Colorado Trout Unlimited, Pitkin County, and the United States of America. The time for filing Statements of Opposition has now expired. Aspen has entered into stipulations with all Opposers, and the Court has approved such stipulations as follows: a. Stipulation dated _______ with Double R Creek Limited, approved by Order of the Court Dated _________. b. Stipulation dated _______ with Asp Properties LLC, approved by Order of the Court Dated _________. c. Stipulations dated _______ with Wilderness Workshop and Western Resource Advocates, approved by Order of the Court Dated _________. d. Stipulation dated _______ with American Rivers and Trout Unlimited, approved by Order of the Court Dated _________. e. Stipulation dated _______ with Pitkin County, approved by Order of the Court Dated _________. f. Stipulation dated _______ with the United States of America, approved by Order of the Court Dated _________. 5. Name of structure: Castle Creek Reservoir. 6. Original Decree for Conditional Water Right: The water right was originally decreed on November 5, 1971 in Case No. CA 5884, District Court, Garfield County, Colorado. P46 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 3 7. Subsequent Decrees Awarding Diligence. Diligence was awarded in Case No. W- 791 (March 15, 1973); W-791-77 (November 7, 1977); 81CW063 (October 29, 1982); 85CW045 (July 17, 1985); 89CW030 (August 29, 1989), 95CW187 (January 4, 1996), 02CW19 (September 3, 2003), and 09CW145 (October 11, 2010). 8. Location of Conditional Water Right: The decreed location of the Castle Creek Reservoir conditional storage right is as follows: The original decreed location of Castle Creek Reservoir is located in Sections 18 and 19, Township 11 South, Range 84 West of the 6th P.M., Pitkin County, Colorado. The initial point of survey of the high water line of the reservoir on the east side of the dam is located such that the angle from the axis of the dam measured clockwise is 66°25' to Highland Peak and 340°51' to Hayden Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) By stipulations and agreements with certain landowners, Aspen has agreed to the following revised legal description of the location of the Castle Creek Reservoir: The Castle Creek Reservoir is located in Sections 18 and 19, Township 11 South, Range 84 West of the 6th P.M., Pitkin County, Colorado, but excluding certain parcels of land described as (1) Lot 1, Part of Subdivision H.E.S. 305, according to the Plat thereof recorded January 22, 1980 in Plat Book 8 at Page 77, County of Pitkin, State of Colorado; and (2) that portion of Tract 39, Section 19, Township 11, Range 84 West, located East of Castle Creek Road. The initial point of survey of the high water line of the reservoir on the east side of the dam is located such that the angle from the axis of the dam measured clockwise is 66°25' to Highland Peak and 340°51' to Hayden Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) A map showing the location of the Castle Creek Reservoir as originally decreed is attached as Exhibit A. 9. Source. The decreed source of supply for the Castle Creek Reservoir is Castle Creek, tributary to the Roaring Fork River. 10. Appropriation Date and Amount. The appropriation date is July 19, 1965. The amount appropriated for the Castle Creek Reservoir is 9,062 acre-feet. P47 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 4 11. Decreed Uses. As stated in the decree in CA5884, water stored in Castle Creek Reservoir is decreed for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 9,062 acre-feet and to keep said reservoir reasonably well filled. 12. Integrated Water Supply System. The Castle Creek Reservoir is part of Aspen’s integrated water supply system which currently includes surface water rights decreed for diversion from Maroon Creek, Castle Creek, Hunter Creek and the Roaring Fork River, and decreed wells, as well as water mains, lines and distribution systems for both raw and treated water, pump systems and related infrastructure, a hydroelectric plant and related infrastructure, all of which allow Aspen to provide water for municipal uses, including hydropower, within the city, and extraterritorially by agreement. The Castle Creek Reservoir storage right is part of Aspen’s integrated municipal water supply system. 13. Finding of Reasonable Diligence. The Application requests a finding that the Applicant has exercised reasonable diligence in the development of the conditional water right awarded to the Castle Creek Reservoir. The Court has reviewed the Application and has considered the Report of the Division Engineer Summary of Consultation and response thereto and finds that the work and expenditures described in the Application and the response to the Summary of Consultation constitute reasonable diligence in the development of 8,500 acre-feet of the conditional water right decreed to the Castle Creek Reservoir, that the Application should be granted and the conditional decree for the Castle Creek Reservoir water right in the amount of 8,500 acre-feet shall be continued in full force and effect, and the remaining 562 acre-feet conditionally decreed to the Castle Creek Reservoir shall be relinquished and cancelled. CONCLUSIONS OF LAW 14. The foregoing Findings of Fact are incorporated herein to the extent they constitute conclusions of law. 15. Timely and adequate notice of the Application was given in the manner provided by law, and the Application filed herein is complete, covering all applicable matters required under C.R.S. Section 37-92-302. 16. All notice required by law has been given, and no further notice need be given. C.R.S. Sections 37-92-101, et. seq. P48 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 5 17. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected by this Application, regardless of whether such persons or property owners have appeared. C.R.S. Sections 37-92-301(2) and 303(1). 18. The Court concludes that Aspen has established that it has a non-speculative need for 8,500 acre-feet of the conditional storage right decreed to the Castle Creel Reservoir, that water can and will be stored under the Castle Creek Reservoir conditional storage right and will be beneficially used, and that the appropriation can and will be completed with diligence and within a reasonable time. 19. Aspen has complied with all requirements and met all standards and burdens of proof including but not limited to those set forth in §§ 37-92-302(1), 37-92-103(3), and 37-92- 305(9) to adjudicate its claim for finding of reasonable diligence and is therefore entitled to a conditional decree confirming and approving its conditional water storage right as described in the Findings of Fact. Aspen has satisfied all other statutory and legal requirements to support a finding of reasonable diligence with regard to the Castle Creek Reservoir storage right. 20. The Application is in accordance with Colorado law and should be granted. RULING, JUDGMENT AND DECREE 21. The Findings of Fact and Conclusions of Law, as set forth above, are incorporated herein by reference and are hereby modified as necessary to constitute part of the Ruling, Judgment and Decree. 22. The Application for finding of reasonable diligence is granted in the amount of 8,500 acre-feet conditional to the Castle Creek Reservoir for storage for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 8,500 acre-feet and to keep said reservoir reasonably well filled, with an appropriation date of July 19, 1965. The remaining 562 acre-feet conditionally decreed to the Castle Creek Reservoir is hereby relinquished and cancelled. 23. It is hereby ordered that the conditional decree for the Castle Creek Reservoir water right in the amount of 8,500 acre-feet herein described is continued in full force and effect until_______________, 20__ , and if Aspen desires to maintain said water right, an application for finding of reasonable diligence shall be filed on or before that date or a showing shall be P49 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 6 made on or before that date that the conditional water right has become absolute by reason of completion of the appropriation. 24. Pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions, upon the sale or transfer or any conditional rights decreed herein, the transferee shall file with the water court a notice of transfer which shall state or provide the following information: a. The title and case number of the case in which the conditional decree was issued; b. The description of the conditional water right transferred; c. The name of the transferor; d. The name and mailing address of the transferee; and e. A copy of the recorded deed. The owner of any conditional water right shall notify the clerk of the water court of any change in mailing address. The clerk shall also place any notice of transfer or change of address in the case file for CA5884 and in the case file for this case. 25. It is further ordered that a copy of this Decree shall be filed with the Division Engineer, Water Division No. 5, and with the State Engineer. Dated___________________ ______________________________ James B. Boyd, Water Judge Water Division No. 5 State of Colorado P50 VI.a ^_ Date: 1 0/25 /201 6 City of Aspen WATER Geographic Inform ation Systems This map/drawing/image is a graphical representation of the featuresdepicted and is not a legal representation. The accuracy may change depending on the enlargement or reduction. Copyright 2016 City of Aspen GIS 0 2,500 5,0001,250 Feet 1 inch = 3,000 feetWhen printed at 8.5"x11" 4 Castle CreekReservoir <NOTES> Lege nd ^_Castle Creek Re se rvoir Roads P51VI.a ¬«82 ASPEN S m u g g l e r S m u g g l e r M o u n t a i n M o u n t a i n R e d R e d M o u n t a i n M o u n t a i n A s p e n A s p e n M o u n t a i n M o u n t a i n A s p e n A s p e nH i g h l a n d s H i g h l a n d s B u t t e r m i l k B u t t e r m i l k M o u n t a i n M o u n t a i n Vagneur Gravel Pit Woody Creek Aspen Golf Course Zoline Open SpaceMoore Open Space Cozy Point Ranch Woody Creek Roaring Fo r k Ri v e r Mar o o n C r e e k Spring C reek Castle C r e e k C o l l i n s C r e e k Hu n t e r C r e e k Casa d a y C r e e k Bush C r e e k Willow CreekPine C r e e k Brush CreekQueens GulchRoaring Fork River8000850 0 9000 9500 75001 0 000 1050011000 10000 8000 1 0 5 0 0950085008000100009500800 010000 Legend Rivers and Streams State Highway 82 Potential Reservoir Sites ¥0 3,000 6,000 Feet CITY OF ASPEN EXHIBIT B DATE:SCALE: Potential New Reservoir Sites Map 1 inch=3,000 feet2/15/2018 JOB NO. 0687.002.00 U:\0687 City of Aspen\0687.002 In-Situ Screening Study\GIS\Stipulation Exhibit B.mxd Thursday, February 15, 2018 09:53 AMTopography from USGS DEM, C.I. = 100 feet Aerial Image from NAIP (2015) C o l o r a d o I n d e x M a p C o l o r a d o I n d e x M a p AspenPitkin County, Colorado EXHIBIT B TO STIPULATION P52VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 1 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO Garfield County Courthouse 109 8th Street, Suite 104 Glenwood Springs, CO 81601 970/945-5075 COURT USE ONLY CONCERNING THE APPLICATION FOR FINDING OF REASONABLE DILIGENCE OF THE CITY OF ASPEN in PITKIN COUNTY, COLORADO Case Number: 2017CW3128 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE OF THE WATER COURT (Maroon Creek Reservoir) This matter comes before the Water Court upon the application of the City of Aspen, Colorado (“Applicant” or “Aspen”) for a finding of reasonable diligence. The Court, having reviewed the pleadings of the parties, the comments of the Division Engineer and response thereto and having become fully advised with respect to the subject matter of the Application hereby makes the following Findings of Fact, Conclusions of Law, Judgment and Decree of the Water Court (“Decree”). FINDINGS OF FACT 1. Applicant. The applicant is the City of Aspen, Colorado, c/o David Hornbacher, Utilities Director, 130 South Galena Street, Aspen, CO 81611, telephone, (970) 920-5110. Copies of all pleadings in this matter are to be delivered to Cynthia F. Covell and Andrea Benson, Alperstein & Covell P.C., 1600 Broadway, Suite 1070, Denver, CO 80202. 2. Application. The Application in this matter was filed by Aspen on October 31, 2016, and referred to the Water Referee for Water Division No. 5, State of Colorado by the Water Judge of said Court in accordance with Article 92, Chapter 37, of the Colorado Revised Statutes known as the Water Right Determination and Administration Act of 1969. The matter was re-referred to the Water Court on _________________________. Attachment H - Attachment to Maroon Creek Stipulations P53 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 2 3. Notice and Jurisdiction. Timely and adequate notice of the pendency of these proceedings in rem was given in the manner provided by law. The Application was published in the Water Resume for Water Division 5 for October, 2016, and in the Grand Junction Daily Sentinel on November 20, 2016, the Aspen Times Weekly on November 24, 2016 and the Rifle Citizen Telegraph on November 24, 2016. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected hereby, irrespective of whether those persons or property owners have appeared. None of the lands or water rights involved in this case is within the boundaries of any designated groundwater basin. 4. Statements of Opposition and Stipulation. Timely statements of opposition were filed by Wilderness Workshop, Western Resource Advocates, Roaring Fork Land & Cattle Company, American Rivers, Pitkin County, Colorado Trout Unlimited, Larsen Family LP, and the United States of America. The time for filing Statements of Opposition has now expired. Aspen has entered into stipulations with all Opposers, and the Court has approved such stipulations as follows: a. Stipulations dated _______ with Wilderness Workshop and Western Resource Advocates, approved by Order of the Court Dated _________. b. Stipulation dated _______ with Roaring Fork Land & Cattle Company, American Rivers and Colorado Trout Unlimited, approved by Order of the Court Dated _________. c. Stipulation dated _______ with Pitkin County, approved by Order of the Court Dated _________. d. Stipulation dated _______ with Larsen Family LP, approved by Order of the Court Dated _________. e. Stipulation dated _______ with the United States of America, approved by Order of the Court Dated _________. 5. Name of structure: Maroon Creek Reservoir. 6. Original Decree for Conditional Water Right: The water right was originally decreed on November 5, 1971 in Case No. CA 5884, District Court, Garfield County, Colorado. 7. Subsequent Decrees Awarding Diligence. Diligence was awarded in Case No. W- 791 (March 15, 1973); W-791-77 (November 7, 1977); 81CW063 (October 29, 1982); 85CW045 P54 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 3 (July 17, 1985); 89CW030 (August 29, 1989), 95CW187 (January 4, 1996), 02CW19 (September 3, 2003), and 09CW145 (October 11, 2010). 8. Location of Conditional Water Right: The decreed location of the Maroon Creek Reservoir conditional storage right is as follows: The decreed location of the Maroon Creek Reservoir is “Sections 7 and 8, Township 11 South, Range 85 West of the 6th P.M., (Pitkin County, Colorado).” The initial point of survey of the high water line of the reservoir on the west side of the dam is located such that the angle from the axis of the dam measured clockwise is 86° 57' to Pyramid Peak and 105° 56' to North Maroon Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) A map showing the decreed location of the Maroon Creek Reservoir is attached as Exhibit A. 9. Source. The decreed source of supply for the Maroon Creek Reservoir is East Maroon Creek and West Maroon Creek, tributary to Maroon Creek, tributary to the Roaring Fork River. 10. Appropriation Date and Amount. The appropriation date is July 19, 1965. The amount appropriated for the Maroon Creek Reservoir is 4,567 acre-feet. 11. Decreed Uses. As stated in the decree in CA5884, water stored in Maroon Creek Reservoir is decreed for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 4,567 acre-feet and to keep said reservoir reasonably well filled. 12. Integrated Water Supply System. The Maroon Creek Reservoir is part of Aspen’s integrated water supply system which currently includes surface water rights decreed for diversion from Maroon Creek, Castle Creek, Hunter Creek and the Roaring Fork River, and decreed wells, as well as water mains, lines and distribution systems for both raw and treated water, pump systems and related infrastructure, a hydroelectric plant and related infrastructure, all of which allow Aspen to provide water for municipal uses, including hydropower, within the city, and extraterritorially by agreement. The Maroon Creek Reservoir storage right is part of Aspen’s integrated water supply system. P55 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 4 13. Finding of Reasonable Diligence. The Application requests a finding that the Applicant has exercised reasonable diligence in the development of the conditional water right awarded to the Maroon Creek Reservoir. The Court has reviewed the Application and has considered the Report of the Division Engineer Summary of Consultation and response thereto and finds that the work and expenditures described in the Application and the response to the Summary of Consultation constitute reasonable diligence in the development of the conditional water right, that the Application should be granted and the conditional decree for the Maroon Creek Reservoir water right in the amount of 4,567 acre-feet shall be continued in full force and effect. CONCLUSIONS OF LAW 14. The foregoing Findings of Fact are incorporated herein to the extent they constitute conclusions of law. 15. Timely and adequate notice of the Application was given in the manner provided by law, and the Application filed herein is complete, covering all applicable matters required under C.R.S. Section 37-92-302. 16. All notice required by law has been given, and no further notice need be given. C.R.S. Sections 37-92-101, et. seq. 17. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected by this Application, regardless of whether such persons or property owners have appeared. C.R.S. Sections 37-92-301(2) and 303(1). 18. The Court concludes that Aspen has established that it has a non-speculative need for the water, that water can and will be stored under the Maroon Creek Reservoir conditional storage right and will be beneficially used, and that the appropriation can and will be completed with diligence and within a reasonable time. 19. Aspen has complied with all requirements and met all standards and burdens of proof including but not limited to those set forth in §§ 37-92-302(1), 37-92-103(3), and 37-92- 305(9) to adjudicate its claim for finding of reasonable diligence and is therefore entitled to a conditional decree confirming and approving its conditional water storage right as described in the Findings of Fact. Aspen has satisfied all other statutory and legal requirements to support a finding of reasonable diligence with regard to the Maroon Creek Reservoir storage right. 20. The Application is in accordance with Colorado law and should be granted. P56 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 5 RULING, JUDGMENT AND DECREE 21. The Findings of Fact and Conclusions of Law, as set forth above, are incorporated herein by reference and are hereby modified as necessary to constitute part of the Ruling, Judgment and Decree. 22. The Application for finding of reasonable diligence is granted in the amount of 4,567 acre-feet conditional to the Maroon Creek Reservoir for storage for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 4,567 acre-feet and to keep said reservoir reasonably well filled, with an appropriation date of July 19, 1965. 23. It is hereby ordered that the conditional decree for the Maroon Creek Reservoir water right herein described is continued in full force and effect until_______________, 20__ , and if Aspen desires to maintain said water right, an application for finding of reasonable diligence shall be filed on or before that date or a showing shall be made on or before that date that the conditional water right has become absolute by reason of completion of the appropriation. 24. Pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions, upon the sale or transfer or any conditional rights decreed herein, the transferee shall file with the water court a notice of transfer which shall state or provide the following information: a. The title and case number of the case in which the conditional decree was issued; b. The description of the conditional water right transferred; c. The name of the transferor; d. The name and mailing address of the transferee; and e. A copy of the recorded deed. The owner of any conditional water right shall notify the clerk of the water court of any change in mailing address. The clerk shall also place any notice of transfer or change of address in the case file for Case No. CA5884 and in the case file for this case. P57 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 6 25. It is further ordered that a copy of this Decree shall be filed with the Division Engineer, Water Division No. 5, and with the State Engineer. Dated___________________ ______________________________ James B. Boyd, Water Judge Water Division No. 5 State of Colorado P58 VI.a ^_ Date: 1 0/27 /201 6 City of Aspen WATER Geographic Inform ation Systems This map/drawing/image is a graphical representation of the featuresdepicted and is not a legal representation. The accuracy may change depending on the enlargement or reduction. Copyright 2016 City of Aspen GIS 0 2,000 4,0001,000 Feet 1 inch = 2,500 feetWhen printed at 8.5"x11" 4 Maroon CreekReservoir Lege nd ^_Maroon Creek Reservoir Roads P59VI.a ¬«82 ASPEN S m u g g l e r S m u g g l e r M o u n t a i n M o u n t a i n R e d R e d M o u n t a i n M o u n t a i n A s p e n A s p e n M o u n t a i n M o u n t a i n A s p e n A s p e nH i g h l a n d s H i g h l a n d s B u t t e r m i l k B u t t e r m i l k M o u n t a i n M o u n t a i n Vagneur Gravel Pit Woody Creek Aspen Golf Course Zoline Open SpaceMoore Open Space Cozy Point Ranch Woody Creek Roaring Fo r k Ri v e r Mar o o n C r e e k Spring C reek Castle C r e e k C o l l i n s C r e e k Hu n t e r C r e e k Casa d a y C r e e k Bush C r e e k Willow CreekPine C r e e k Brush CreekQueens GulchRoaring Fork River8000850 0 9000 9500 75001 0 000 1050011000 10000 8000 1 0 5 0 0950085008000100009500800 010000 Legend Rivers and Streams State Highway 82 Potential Reservoir Sites ¥0 3,000 6,000 Feet CITY OF ASPEN EXHIBIT B DATE:SCALE: Potential New Reservoir Sites Map 1 inch=3,000 feet2/15/2018 JOB NO. 0687.002.00 U:\0687 City of Aspen\0687.002 In-Situ Screening Study\GIS\Stipulation Exhibit B.mxd Thursday, February 15, 2018 09:53 AMTopography from USGS DEM, C.I. = 100 feet Aerial Image from NAIP (2015) C o l o r a d o I n d e x M a p C o l o r a d o I n d e x M a p AspenPitkin County, Colorado EXHIBIT B TO STIPULATION P60VI.a DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 ▲ COURT USE ONLY ▲ IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS of the CITY OF ASPEN, COLORADO, IN PITKIN COUNTY Attorneys for Applicant Cynthia F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein & Covell, P.C. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com John M. Ely, Pitkin County Attorney Laura C. Makar, Assistant Pitkin County Attorney Richard Y. Neiley, Assistant Pitkin County Attorney 123 Emma Road, Suite 204 Basalt, Colorado 81621 970-920-5190 970-920-5198 (FAX) John.Ely@pitkincounty.com Laura.Makar@pitkincounty.com Atty. Reg. #14067 Atty. Reg. #41385 Atty. Reg. #45848 Case Number: 2016CW3129 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY Applicant, the City of Aspen (“Aspen”) and Opposer Board of County Commissioners of Pitkin County (“Pitkin County”) by and through their undersigned attorneys, hereby stipulate and agree as follows. 1. The water right for which diligence is sought in this case is the Castle Creek Reservoir conditional storage right decreed in Case No. CA 5884 on November 5, 1971, by the District Court, Garfield County, Colorado (“Castle Creek Reservoir Storage Right”). Pitkin County hereby consents to the entry of a Decree regarding the Castle Creek P61 VI.a Pitkin Stipulation and Agreement Case No. 2016CW3129 Page 2 2 Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (“Proposed Decree”). Pitkin County shall not protest, appeal or otherwise challenge any ruling or decree ultimately entered by the Water Court in this matter, so long as its terms and conditions are no less restrictive on Aspen than those contained in the Proposed Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the “Final Decree.” 2. In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Castle Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (“Original Decreed Location”). Prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (“Change Application”), to change the location of the Castle Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or any other location or locations the parties have agreed to in writing (“New Reservoir Sites”). The general location of each of the New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3128 (regarding Maroon Creek Reservoir). Should Aspen plan to divert the Castle Creek Reservoir Storage Right for storage in any of the New Reservoir Sites at a diversion point located on the mainstem of the Roaring Fork River, any such point of diversion on the mainstem of the Roaring Fork River shall be located downstream of the confluence of Maroon Creek and the Roaring Fork River. This does not preclude Aspen from making diversions under the Castle Creek Reservoir Storage Right for storage in any of the New Reservoir Sites from Maroon Creek or Castle Creek. 3. Aspen will provide the Change Application to Pitkin County for review no later than sixty (60) days before it is filed in the Water Court, in order to allow Pitkin County to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Pitkin County or any other Opposer within thirty (30) days of the date on which the Change Application is provided (“Notice Period”), Aspen will file the Change Application in substantially the form provided to Opposers. If Pitkin County does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, Pitkin County shall provide notice to Aspen within the Notice Period, identifying the specific provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and Pitkin County shall cooperate in good faith to resolve their disagreement. 4. Pitkin County, its agents, assigns or successors in interest will not oppose the Change Application, directly or indirectly, and will take no position regarding the allegations therein. In addition, for a period of twenty (20) years from the date of entry of the Final Decree, Pitkin P62 VI.a Pitkin Stipulation and Agreement Case No. 2016CW3129 Page 3 3 County, its agents, assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Castle Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. Pitkin County reserves the right to participate in any land use proceedings or other approval processes required for construction of a reservoir(s) at any of the New Reservoir Sites. 5. After the Change Application has been filed, Aspen will diligently pursue the Change Application to completion, provided, however, that Aspen may, at its discretion, withdraw the Change Application with prejudice in whole or in part, or amend the Change Application without Pitkin County’s approval so long as (1) the amount of storage sought pursuant to the Change Application does not exceed 8,500 acre-feet pursuant to the Castle Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Castle Creek Reservoir Storage Right, the Maroon Creek Reservoir Storage Right (also decreed in Case No. CA 5884), or any combination of such storage rights, does not exceed 8,500 acre-feet, and (3) the locations of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without Pitkin County’s approval. 6. Aspen may not divert the Castle Creek Reservoir Storage Right through the Salvation Ditch system to fill any of the New Reservoir Sites without prior written consent from the Salvation Ditch Company or pursuant to other legal authority. 7. If and to the extent the Change Application does not result in a final decree changing the location of storage of all of the Castle Creek Reservoir Storage Right as decreed by the Final Decree, Aspen will, within 120 days after entry of a final decree upon the Change Application, or other final order denying or dismissing the Change Application, in whole or in part, file appropriate pleadings to cancel the portion of the Castle Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said final decree or other order will be the decree or order following the outcome of the appeal.) The intent of this paragraph is that Aspen will relinquish any portion of the Castle Creek Reservoir Storage Right that is not transferred to one or more of the New Reservoir Sites pursuant to the Change Application, and Aspen will forego the right to store water pursuant to the Castle Creek Reservoir Storage Right at the Original Decreed Location. 8. If Aspen does not file a Change Application prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will not seek a finding of reasonable diligence or to make absolute the Castle Creek Reservoir Storage Right. 9. Aspen and Pitkin County agree that this Stipulation is effective only following execution of the same or a substantially similar Stipulation (including approval of the same or a substantially similar form of the Proposed Decree) by all parties to this case. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re-refer the above-captioned case to the Water Judge, Water Division No. 5. Following P63 VI.a Pitkin Stipulation and Agreement Case No. 2016CW3129 Page 4 4 the Order of Re-referral, Aspen will file the fully-executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval the fully-executed Stipulations and for entry of a Final Decree that is substantially similar to, and no less restrictive on Aspen than the Proposed Decree. 10.The parties hereto shall bear their own costs and attorney fees. 11.This Stipulation shall benefit and be binding upon the heirs, successors and assigns of the undersigned parties. 12.This Stipulation supersedes and controls all prior written and oral agreements and representations of the parties regarding the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants and warranties concerning the subject matter hereof are merged herein. This Stipulation may not be modified except in a writing signed by both parties. 13.This Stipulation may be executed using counterpart signature pages with the same force and effect as if both parties had signed on the same signature page. Electronically generated copies of this Stipulation signed by the parties shall be treated as originals. 14. Copies of the Change Application, Pitkin County’s comments thereon and the final decree on the Change Application shall be provided to the party to whom directed at the address set forth below or at such other address as may be provided by a party by notice pursuant to this paragraph unless some other form of notice is expressly agreed to in writing by both parties. FOR ASPEN: City Attorney City of Aspen 130 S. Galena Street Aspen CO 81611 With copy to Cynthia Covell and Andrea Benson Alperstein & Covell P.C. 1600 Broadway, Suite 1070 Denver CO 80202 P64 VI.a P65VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 1 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO Garfield County Courthouse 109 8th Street, Suite 104 Glenwood Springs, CO 81601 970/945-5075 COURT USE ONLY CONCERNING THE APPLICATION FOR FINDING OF REASONABLE DILIGENCE OF THE CITY OF ASPEN in PITKIN COUNTY, COLORADO Case Number: 2017CW3129 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE OF THE WATER COURT (Castle Creek Reservoir) This matter comes before the Water Court upon the application of the City of Aspen, Colorado (“Applicant” or “Aspen”) for a finding of reasonable diligence. The Court, having reviewed the pleadings of the parties, the comments of the Division Engineer and response thereto and having become fully advised with respect to the subject matter of the Application hereby makes the following Findings of Fact, Conclusions of Law, Judgment and Decree of the Water Court (“Decree”). FINDINGS OF FACT 1. Applicant. The applicant is the City of Aspen, Colorado, c/o David Hornbacher, Utilities Director, 130 South Galena Street, Aspen, CO 81611, telephone, (970) 920-5110. Copies of all pleadings in this matter are to be delivered to Cynthia F. Covell and Andrea Benson, Alperstein & Covell P.C., 1600 Broadway, Suite 1070, Denver, CO 80202. 2. Application. The Application in this matter was filed by Aspen on October 31, 2016, and referred to the Water Referee for Water Division No. 5, State of Colorado by the Water Judge of said Court in accordance with Article 92, Chapter 37, of the Colorado Revised Statutes known as the Water Right Determination and Administration Act of 1969. The matter was re-referred to the Water Court on _________________________. P66 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 2 3. Notice and Jurisdiction. Timely and adequate notice of the pendency of these proceedings in rem was given in the manner provided by law. The Application was published in the Water Resume for Water Division 5 for October, 2016, and in the Grand Junction Daily Sentinel on November 20, 2016, the Aspen Times Weekly on November 24, 2016 and the Rifle Citizen Telegraph on November 24, 2016. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected hereby, irrespective of whether those persons or property owners have appeared. None of the lands or water rights involved in this case is within the boundaries of any designated groundwater basin. 4. Statements of Opposition and Stipulation. Timely statements of opposition were filed by Double R Creek Limited, Asp Properties LLC, Wilderness Workshop, Western Resource Advocates, American Rivers, Colorado Trout Unlimited, Pitkin County, and the United States of America. The time for filing Statements of Opposition has now expired. Aspen has entered into stipulations with all Opposers, and the Court has approved such stipulations as follows: a. Stipulation dated _______ with Double R Creek Limited, approved by Order of the Court Dated _________. b. Stipulation dated _______ with Asp Properties LLC, approved by Order of the Court Dated _________. c. Stipulations dated _______ with Wilderness Workshop and Western Resource Advocates, approved by Order of the Court Dated _________. d. Stipulation dated _______ with American Rivers and Trout Unlimited, approved by Order of the Court Dated _________. e. Stipulation dated _______ with Pitkin County, approved by Order of the Court Dated _________. f. Stipulation dated _______ with the United States of America, approved by Order of the Court Dated _________. 5. Name of structure: Castle Creek Reservoir. 6. Original Decree for Conditional Water Right: The water right was originally decreed on November 5, 1971 in Case No. CA 5884, District Court, Garfield County, Colorado. P67 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 3 7. Subsequent Decrees Awarding Diligence. Diligence was awarded in Case No. W- 791 (March 15, 1973); W-791-77 (November 7, 1977); 81CW063 (October 29, 1982); 85CW045 (July 17, 1985); 89CW030 (August 29, 1989), 95CW187 (January 4, 1996), 02CW19 (September 3, 2003), and 09CW145 (October 11, 2010). 8. Location of Conditional Water Right: The decreed location of the Castle Creek Reservoir conditional storage right is as follows: The original decreed location of Castle Creek Reservoir is located in Sections 18 and 19, Township 11 South, Range 84 West of the 6th P.M., Pitkin County, Colorado. The initial point of survey of the high water line of the reservoir on the east side of the dam is located such that the angle from the axis of the dam measured clockwise is 66°25' to Highland Peak and 340°51' to Hayden Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) By stipulations and agreements with certain landowners, Aspen has agreed to the following revised legal description of the location of the Castle Creek Reservoir: The Castle Creek Reservoir is located in Sections 18 and 19, Township 11 South, Range 84 West of the 6th P.M., Pitkin County, Colorado, but excluding certain parcels of land described as (1) Lot 1, Part of Subdivision H.E.S. 305, according to the Plat thereof recorded January 22, 1980 in Plat Book 8 at Page 77, County of Pitkin, State of Colorado; and (2) that portion of Tract 39, Section 19, Township 11, Range 84 West, located East of Castle Creek Road. The initial point of survey of the high water line of the reservoir on the east side of the dam is located such that the angle from the axis of the dam measured clockwise is 66°25' to Highland Peak and 340°51' to Hayden Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) A map showing the location of the Castle Creek Reservoir as originally decreed is attached as Exhibit A. 9. Source. The decreed source of supply for the Castle Creek Reservoir is Castle Creek, tributary to the Roaring Fork River. 10. Appropriation Date and Amount. The appropriation date is July 19, 1965. The amount appropriated for the Castle Creek Reservoir is 9,062 acre-feet. P68 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 4 11. Decreed Uses. As stated in the decree in CA5884, water stored in Castle Creek Reservoir is decreed for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 9,062 acre-feet and to keep said reservoir reasonably well filled. 12. Integrated Water Supply System. The Castle Creek Reservoir is part of Aspen’s integrated water supply system which currently includes surface water rights decreed for diversion from Maroon Creek, Castle Creek, Hunter Creek and the Roaring Fork River, and decreed wells, as well as water mains, lines and distribution systems for both raw and treated water, pump systems and related infrastructure, a hydroelectric plant and related infrastructure, all of which allow Aspen to provide water for municipal uses, including hydropower, within the city, and extraterritorially by agreement. The Castle Creek Reservoir storage right is part of Aspen’s integrated municipal water supply system. 13. Finding of Reasonable Diligence. The Application requests a finding that the Applicant has exercised reasonable diligence in the development of the conditional water right awarded to the Castle Creek Reservoir. The Court has reviewed the Application and has considered the Report of the Division Engineer Summary of Consultation and response thereto and finds that the work and expenditures described in the Application and the response to the Summary of Consultation constitute reasonable diligence in the development of 8,500 acre-feet of the conditional water right decreed to the Castle Creek Reservoir, that the Application should be granted and the conditional decree for the Castle Creek Reservoir water right in the amount of 8,500 acre-feet shall be continued in full force and effect, and the remaining 562 acre-feet conditionally decreed to the Castle Creek Reservoir shall be relinquished and cancelled. CONCLUSIONS OF LAW 14. The foregoing Findings of Fact are incorporated herein to the extent they constitute conclusions of law. 15. Timely and adequate notice of the Application was given in the manner provided by law, and the Application filed herein is complete, covering all applicable matters required under C.R.S. Section 37-92-302. 16. All notice required by law has been given, and no further notice need be given. C.R.S. Sections 37-92-101, et. seq. P69 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 5 17. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected by this Application, regardless of whether such persons or property owners have appeared. C.R.S. Sections 37-92-301(2) and 303(1). 18. The Court concludes that Aspen has established that it has a non-speculative need for 8,500 acre-feet of the conditional storage right decreed to the Castle Creel Reservoir, that water can and will be stored under the Castle Creek Reservoir conditional storage right and will be beneficially used, and that the appropriation can and will be completed with diligence and within a reasonable time. 19. Aspen has complied with all requirements and met all standards and burdens of proof including but not limited to those set forth in §§ 37-92-302(1), 37-92-103(3), and 37-92- 305(9) to adjudicate its claim for finding of reasonable diligence and is therefore entitled to a conditional decree confirming and approving its conditional water storage right as described in the Findings of Fact. Aspen has satisfied all other statutory and legal requirements to support a finding of reasonable diligence with regard to the Castle Creek Reservoir storage right. 20. The Application is in accordance with Colorado law and should be granted. RULING, JUDGMENT AND DECREE 21. The Findings of Fact and Conclusions of Law, as set forth above, are incorporated herein by reference and are hereby modified as necessary to constitute part of the Ruling, Judgment and Decree. 22. The Application for finding of reasonable diligence is granted in the amount of 8,500 acre-feet conditional to the Castle Creek Reservoir for storage for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 8,500 acre-feet and to keep said reservoir reasonably well filled, with an appropriation date of July 19, 1965. The remaining 562 acre-feet conditionally decreed to the Castle Creek Reservoir is hereby relinquished and cancelled. 23. It is hereby ordered that the conditional decree for the Castle Creek Reservoir water right in the amount of 8,500 acre-feet herein described is continued in full force and effect until_______________, 20__ , and if Aspen desires to maintain said water right, an application for finding of reasonable diligence shall be filed on or before that date or a showing shall be P70 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 6 made on or before that date that the conditional water right has become absolute by reason of completion of the appropriation. 24. Pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions, upon the sale or transfer or any conditional rights decreed herein, the transferee shall file with the water court a notice of transfer which shall state or provide the following information: a. The title and case number of the case in which the conditional decree was issued; b. The description of the conditional water right transferred; c. The name of the transferor; d. The name and mailing address of the transferee; and e. A copy of the recorded deed. The owner of any conditional water right shall notify the clerk of the water court of any change in mailing address. The clerk shall also place any notice of transfer or change of address in the case file for CA5884 and in the case file for this case. 25. It is further ordered that a copy of this Decree shall be filed with the Division Engineer, Water Division No. 5, and with the State Engineer. Dated___________________ ______________________________ James B. Boyd, Water Judge Water Division No. 5 State of Colorado P71 VI.a ^_ Date: 1 0/25 /201 6 City of Aspen WATER Geographic Inform ation Systems This map/drawing/image is a graphical representation of the featuresdepicted and is not a legal representation. The accuracy may change depending on the enlargement or reduction. Copyright 2016 City of Aspen GIS 0 2,500 5,0001,250 Feet 1 inch = 3,000 feetWhen printed at 8.5"x11" 4 Castle CreekReservoir <NOTES> Lege nd ^_Castle Creek Re se rvoir Roads P72VI.a ¬«82 ASPEN S m u g g l e r S m u g g l e r M o u n t a i nMountain R e d R e d M o u n t a i nMountain A s p e n A s p e n M o u n t a i nMountain A s p e nAspenHighla n d sHighlands B u t t e r m i l k B u t t e r m i l k M o u n t a i nMountain Vagneur Gravel Pit Woody Creek Aspen Golf Course Zoline Open Space Cozy Point Ranch W oody CreekRoaring Fork River Maroon Creek Spr i ng Cr eekCastle Creek C o lli n s Cr e e k Hunter Creek Casaday Creek Bush Creek Willow CreekPine Creek Brush CreekQueens GulchRoaring Fork River80008500 9000 9 5 0 0 75001 00 0 01050011000 10000 8 0 0 0 1 0 5 0 0950085008000100009500800010000Legend Rivers and Streams State Highway 82 Potential Reservoir Sites ¥0 3,000 6,000Feet CITY OF ASPEN EXHIBIT B DATE:SCALE: Potential New Reservoir Sites Map 1 inch=3,000 feet5/23/2018 JOB NO. 0687.002.00 U:\0687 City of Aspen\0687.002 In-Situ Screening Study\GIS\Stipulation Exhibit B.mxd Wednesday, May 23, 2018 05:10 PMTopography from USGS DEM, C.I. = 100 feetAerial Image from NAIP (2015) C o l o r a d o I n d e x M a pColorado I n d e x M a p AspenPitkin County, Colorado P73VI.a DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 ▲ COURT USE ONLY ▲ IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS of the CITY OF ASPEN, COLORADO, IN PITKIN COUNTY Attorneys for Applicant Cynthia F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein & Covell, P.C. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com Counsel for Opposer Pitkin County John M. Ely, Pitkin County Attorney Laura C. Makar, Assistant Pitkin County Attorney Richard Y. Neiley, Assistant Pitkin County Attorney 123 Emma Road, Suite 204 Basalt, Colorado 81621 970-920-5190 970-920-5198 (FAX) John.Ely@pitkincounty.com Laura.Makar@pitkincounty.com Atty. Reg. #14067 Atty. Reg. #41385 Atty. Reg. #45848 Case Number: 2016CW3128 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY Applicant, the City of Aspen (“Aspen”) and Opposer Board of County Commissioners of Pitkin County (“Pitkin County”) by and through their undersigned attorneys, hereby stipulate and agree as follows. 1. The water right for which diligence is sought in this case is the Maroon Creek Reservoir conditional storage right decreed in Case No. CA5884 on November 5, 1971, by the District Court, Garfield County, Colorado (“Maroon Creek Reservoir Storage Right”). Pitkin P74 VI.a Pitkin Stipulation and Agreement Case No. 2016CW3128 Page 2 2 County hereby consents to the entry of a Decree regarding the Maroon Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (“Proposed Decree”). Pitkin County shall not protest, appeal or otherwise challenge any ruling or decree ultimately entered by the Water Court in this matter, so long as its terms and conditions are no less restrictive on Aspen than those contained in the Proposed Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the “Final Decree.” 2. In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Maroon Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (“Original Decreed Location”). Prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (“Change Application”), to change the location of the Maroon Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or any other location or locations the parties have agreed to in writing (“New Reservoir Sites”). The general location of each of the New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3129 (regarding Castle Creek Reservoir). Should Aspen plan to divert the Maroon Creek Reservoir Storage Right for storage in any of the New Reservoir Sites at a diversion point located on the mainstem of the Roaring Fork River, any such point of diversion on the mainstem of the Roaring Fork River shall be located downstream of the confluence of Maroon Creek and the Roaring Fork River. This does not preclude Aspen from making diversions under the Maroon Creek Reservoir Storage Right for storage in any of the New Reservoir Sites from Maroon Creek or Castle Creek. 3. Aspen will provide the Change Application to Pitkin County for review no later than sixty (60) days before it is filed in the Water Court, in order to allow Pitkin County to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Pitkin County or any other Opposer in this case within thirty (30) days of the date on which the Change Application is provided (“Notice Period”), Aspen will file the Change Application in substantially the form provided to Pitkin County. If Pitkin County does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, Pitkin County shall provide notice to Aspen within the Notice Period, identifying the specific provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and Pitkin County shall cooperate in good faith to resolve their disagreement. P75 VI.a Pitkin Stipulation and Agreement Case No. 2016CW3128 Page 3 3 4. Pitkin County, its agents, assigns or successors in interest will not oppose the Change Application, directly or indirectly, and will take no position regarding the allegations therein. In addition, for a period of twenty (20) years from the date of entry of the Final Decree, Pitkin County, its agents, assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Maroon Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. Pitkin County reserves the right to participate in any land use proceedings or other approval processes required for construction of a reservoir(s) at any of the New Reservoir Sites. 5. After the Change Application has been filed, Aspen will diligently pursue the Change Application to completion, provided, however, that Aspen may, at its discretion, withdraw the Change Application with prejudice in whole or in part, or amend the Change Application without Pitkin County’s approval so long as (1) the amount of storage sought pursuant to the Change Application does not exceed 4,567 acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right, the Castle Creek Reservoir Storage right (also decreed in Case No. CA 5884), or any combination of such storage rights, does not exceed 8,500 acre-feet, and (3) the locations of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without Pitkin County’s approval. 6. Aspen may not divert the Maroon Creek Reservoir Storage Right through the Salvation Ditch system to fill any of the New Reservoir Sites without prior written consent from the Salvation Ditch Company or pursuant to other legal authority. 7. If and to the extent the Change Application does not result in a final decree changing the location of storage of all of the Maroon Creek Reservoir Storage Right as decreed by the Final Decree, Aspen will, within 120 days after entry of a final decree upon the Change Application, or other final order denying or dismissing the Change Application, in whole or in part, file appropriate pleadings to cancel the portion of the Maroon Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said final decree or other order will be the decree or order following the outcome of the appeal.) The intent of this paragraph is that Aspen will relinquish any portion of the Maroon Creek Reservoir Storage Right that is not transferred to one or more of the New Reservoir Sites pursuant to the Change Application, and Aspen will forego the right to store water pursuant to the Maroon Creek Reservoir Storage Right at the Original Decreed Location. 8. If Aspen does not file a Change Application prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will not seek a finding of reasonable diligence or to make absolute the Maroon Creek Reservoir Storage Right. 9. Aspen and Pitkin County agree that this Stipulation is effective only upon execution of the same or a substantially similar Stipulation (including approval of the same or a P76 VI.a Pitkin Stipulation and Agreement Case No. 2016CW3128 Page 4 4 substantially similar form of the Proposed Decree) by all parties to this case. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re-refer the above-captioned case to the Water Judge, Water Division No. 5. Following the Order of Re-referral, Aspen will file the fully-executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval the fully-executed Stipulations and for entry of a Final Decree that is substantially similar to and no less restrictive on Aspen than the Proposed Decree. 10. The parties hereto shall bear their own costs and attorney fees. 11. This Stipulation shall benefit and be binding upon the heirs, successors and assigns of the undersigned parties. 12. This Stipulation supersedes and controls all prior written and oral agreements and representations of the parties regarding the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants and warranties concerning the subject matter hereof are merged herein. This Stipulation may not be modified except in a writing signed by both parties. 13. This Stipulation may be executed using counterpart signature pages with the same force and effect as if both parties had signed on the same signature page. Electronically generated copies of this Stipulation signed by the parties shall be treated as originals. 14. Copies of the Change Application, Pitkin County’s comments thereon and the final decree on the Change Application shall be provided to the party to whom directed at the address set forth below or at such other address as may be provided by a party by notice pursuant to this paragraph unless some other form of notice is expressly agreed to in writing by both parties. FOR ASPEN: City Attorney City of Aspen 130 S. Galena Street Aspen CO 81611 With copy to Cynthia Covell and Andrea Benson Alperstein & Covell P.C. 1600 Broadway, Suite 1070 Denver CO 80202 P77 VI.a P78VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 1 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO Garfield County Courthouse 109 8th Street, Suite 104 Glenwood Springs, CO 81601 970/945-5075 COURT USE ONLY CONCERNING THE APPLICATION FOR FINDING OF REASONABLE DILIGENCE OF THE CITY OF ASPEN in PITKIN COUNTY, COLORADO Case Number: 2017CW3128 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE OF THE WATER COURT (Maroon Creek Reservoir) This matter comes before the Water Court upon the application of the City of Aspen, Colorado (“Applicant” or “Aspen”) for a finding of reasonable diligence. The Court, having reviewed the pleadings of the parties, the comments of the Division Engineer and response thereto and having become fully advised with respect to the subject matter of the Application hereby makes the following Findings of Fact, Conclusions of Law, Judgment and Decree of the Water Court (“Decree”). FINDINGS OF FACT 1. Applicant. The applicant is the City of Aspen, Colorado, c/o David Hornbacher, Utilities Director, 130 South Galena Street, Aspen, CO 81611, telephone, (970) 920-5110. Copies of all pleadings in this matter are to be delivered to Cynthia F. Covell and Andrea Benson, Alperstein & Covell P.C., 1600 Broadway, Suite 1070, Denver, CO 80202. 2. Application. The Application in this matter was filed by Aspen on October 31, 2016, and referred to the Water Referee for Water Division No. 5, State of Colorado by the Water Judge of said Court in accordance with Article 92, Chapter 37, of the Colorado Revised Statutes known as the Water Right Determination and Administration Act of 1969. The matter was re-referred to the Water Court on _________________________. P79 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 2 3. Notice and Jurisdiction. Timely and adequate notice of the pendency of these proceedings in rem was given in the manner provided by law. The Application was published in the Water Resume for Water Division 5 for October, 2016, and in the Grand Junction Daily Sentinel on November 20, 2016, the Aspen Times Weekly on November 24, 2016 and the Rifle Citizen Telegraph on November 24, 2016. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected hereby, irrespective of whether those persons or property owners have appeared. None of the lands or water rights involved in this case is within the boundaries of any designated groundwater basin. 4. Statements of Opposition and Stipulation. Timely statements of opposition were filed by Wilderness Workshop, Western Resource Advocates, Roaring Fork Land & Cattle Company, American Rivers, Pitkin County, Colorado Trout Unlimited, Larsen Family LP, and the United States of America. The time for filing Statements of Opposition has now expired. Aspen has entered into stipulations with all Opposers, and the Court has approved such stipulations as follows: a. Stipulations dated _______ with Wilderness Workshop and Western Resource Advocates, approved by Order of the Court Dated _________. b. Stipulation dated _______ with Roaring Fork Land & Cattle Company, American Rivers and Colorado Trout Unlimited, approved by Order of the Court Dated _________. c. Stipulation dated _______ with Pitkin County, approved by Order of the Court Dated _________. d. Stipulation dated _______ with Larsen Family LP, approved by Order of the Court Dated _________. e. Stipulation dated _______ with the United States of America, approved by Order of the Court Dated _________. 5. Name of structure: Maroon Creek Reservoir. 6. Original Decree for Conditional Water Right: The water right was originally decreed on November 5, 1971 in Case No. CA 5884, District Court, Garfield County, Colorado. 7. Subsequent Decrees Awarding Diligence. Diligence was awarded in Case No. W- 791 (March 15, 1973); W-791-77 (November 7, 1977); 81CW063 (October 29, 1982); 85CW045 P80 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 3 (July 17, 1985); 89CW030 (August 29, 1989), 95CW187 (January 4, 1996), 02CW19 (September 3, 2003), and 09CW145 (October 11, 2010). 8. Location of Conditional Water Right: The decreed location of the Maroon Creek Reservoir conditional storage right is as follows: The decreed location of the Maroon Creek Reservoir is “Sections 7 and 8, Township 11 South, Range 85 West of the 6th P.M., (Pitkin County, Colorado).” The initial point of survey of the high water line of the reservoir on the west side of the dam is located such that the angle from the axis of the dam measured clockwise is 86° 57' to Pyramid Peak and 105° 56' to North Maroon Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) A map showing the decreed location of the Maroon Creek Reservoir is attached as Exhibit A. 9. Source. The decreed source of supply for the Maroon Creek Reservoir is East Maroon Creek and West Maroon Creek, tributary to Maroon Creek, tributary to the Roaring Fork River. 10. Appropriation Date and Amount. The appropriation date is July 19, 1965. The amount appropriated for the Maroon Creek Reservoir is 4,567 acre-feet. 11. Decreed Uses. As stated in the decree in CA5884, water stored in Maroon Creek Reservoir is decreed for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 4,567 acre-feet and to keep said reservoir reasonably well filled. 12. Integrated Water Supply System. The Maroon Creek Reservoir is part of Aspen’s integrated water supply system which currently includes surface water rights decreed for diversion from Maroon Creek, Castle Creek, Hunter Creek and the Roaring Fork River, and decreed wells, as well as water mains, lines and distribution systems for both raw and treated water, pump systems and related infrastructure, a hydroelectric plant and related infrastructure, all of which allow Aspen to provide water for municipal uses, including hydropower, within the city, and extraterritorially by agreement. The Maroon Creek Reservoir storage right is part of Aspen’s integrated water supply system. P81 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 4 13. Finding of Reasonable Diligence. The Application requests a finding that the Applicant has exercised reasonable diligence in the development of the conditional water right awarded to the Maroon Creek Reservoir. The Court has reviewed the Application and has considered the Report of the Division Engineer Summary of Consultation and response thereto and finds that the work and expenditures described in the Application and the response to the Summary of Consultation constitute reasonable diligence in the development of the conditional water right, that the Application should be granted and the conditional decree for the Maroon Creek Reservoir water right in the amount of 4,567 acre-feet shall be continued in full force and effect. CONCLUSIONS OF LAW 14. The foregoing Findings of Fact are incorporated herein to the extent they constitute conclusions of law. 15. Timely and adequate notice of the Application was given in the manner provided by law, and the Application filed herein is complete, covering all applicable matters required under C.R.S. Section 37-92-302. 16. All notice required by law has been given, and no further notice need be given. C.R.S. Sections 37-92-101, et. seq. 17. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected by this Application, regardless of whether such persons or property owners have appeared. C.R.S. Sections 37-92-301(2) and 303(1). 18. The Court concludes that Aspen has established that it has a non-speculative need for the water, that water can and will be stored under the Maroon Creek Reservoir conditional storage right and will be beneficially used, and that the appropriation can and will be completed with diligence and within a reasonable time. 19. Aspen has complied with all requirements and met all standards and burdens of proof including but not limited to those set forth in §§ 37-92-302(1), 37-92-103(3), and 37-92- 305(9) to adjudicate its claim for finding of reasonable diligence and is therefore entitled to a conditional decree confirming and approving its conditional water storage right as described in the Findings of Fact. Aspen has satisfied all other statutory and legal requirements to support a finding of reasonable diligence with regard to the Maroon Creek Reservoir storage right. 20. The Application is in accordance with Colorado law and should be granted. P82 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 5 RULING, JUDGMENT AND DECREE 21. The Findings of Fact and Conclusions of Law, as set forth above, are incorporated herein by reference and are hereby modified as necessary to constitute part of the Ruling, Judgment and Decree. 22. The Application for finding of reasonable diligence is granted in the amount of 4,567 acre-feet conditional to the Maroon Creek Reservoir for storage for industrial, irrigation, domestic, municipal, and other beneficial uses, both consumptive and non-consumptive, and for the use and benefit of the parties lawfully entitled thereto, sufficient water to fill said reservoir to its capacity of 4,567 acre-feet and to keep said reservoir reasonably well filled, with an appropriation date of July 19, 1965. 23. It is hereby ordered that the conditional decree for the Maroon Creek Reservoir water right herein described is continued in full force and effect until_______________, 20__ , and if Aspen desires to maintain said water right, an application for finding of reasonable diligence shall be filed on or before that date or a showing shall be made on or before that date that the conditional water right has become absolute by reason of completion of the appropriation. 24. Pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions, upon the sale or transfer or any conditional rights decreed herein, the transferee shall file with the water court a notice of transfer which shall state or provide the following information: a. The title and case number of the case in which the conditional decree was issued; b. The description of the conditional water right transferred; c. The name of the transferor; d. The name and mailing address of the transferee; and e. A copy of the recorded deed. The owner of any conditional water right shall notify the clerk of the water court of any change in mailing address. The clerk shall also place any notice of transfer or change of address in the case file for Case No. CA5884 and in the case file for this case. P83 VI.a EXHIBIT A TO STIPULATION DRAFT 20180315 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 6 25. It is further ordered that a copy of this Decree shall be filed with the Division Engineer, Water Division No. 5, and with the State Engineer. Dated___________________ ______________________________ James B. Boyd, Water Judge Water Division No. 5 State of Colorado P84 VI.a ^_ Date: 1 0/27 /201 6 City of Aspen WATER Geographic Inform ation Systems This map/drawing/image is a graphical representation of the featuresdepicted and is not a legal representation. The accuracy may change depending on the enlargement or reduction. Copyright 2016 City of Aspen GIS 0 2,000 4,0001,000 Feet 1 inch = 2,500 feetWhen printed at 8.5"x11" 4 Maroon CreekReservoir Lege nd ^_Maroon Creek Reservoir Roads P85VI.a ¬«82 ASPEN S m u g g l e r S m u g g l e r M o u n t a i nMountain R e d R e d M o u n t a i nMountain A s p e n A s p e n M o u n t a i nMountain A s p e nAspenHighla n d sHighlands B u t t e r m i l k B u t t e r m i l k M o u n t a i nMountain Vagneur Gravel Pit Woody Creek Aspen Golf Course Zoline Open Space Cozy Point Ranch W oody CreekRoaring Fork River Maroon Creek Spr i ng Cr eekCastle Creek C o lli n s Cr e e k Hunter Creek Casaday Creek Bush Creek Willow CreekPine Creek Brush CreekQueens GulchRoaring Fork River80008500 9000 9 5 0 0 75001 00 0 01050011000 10000 8 0 0 0 1 0 5 0 0950085008000100009500800010000Legend Rivers and Streams State Highway 82 Potential Reservoir Sites ¥0 3,000 6,000Feet CITY OF ASPEN EXHIBIT B DATE:SCALE: Potential New Reservoir Sites Map 1 inch=3,000 feet5/23/2018 JOB NO. 0687.002.00 U:\0687 City of Aspen\0687.002 In-Situ Screening Study\GIS\Stipulation Exhibit B.mxd Wednesday, May 23, 2018 05:10 PMTopography from USGS DEM, C.I. = 100 feetAerial Image from NAIP (2015) C o l o r a d o I n d e x M a pColorado I n d e x M a p AspenPitkin County, Colorado P86VI.a 1 MEMORANDUM TO: Mayor and City Council FROM: Karen Harrington, Director of Quality Rebecca Wallace, Operations Manager, Community Development THROUGH: Jessica Garrow, Community Development Director DATE OF MEMO: May 21, 2018 MEETING DATE: May 29, 2018 RE: Resolution #78, Series of 2018 - Change Order for Vertiba Contract REQUEST OF COUNCIL: Staff is seeking approval of changes orders for the Vertiba Contract, under which the City’s new permits management, land use planning, and code enforcement software system. The change orders provide additional functionality requested by departments, as well as funding for additional short-term technical support. PREVIOUS COUNCIL ACTION: On March 27, 2017, the Council approved by Resolution #37, Series of 2017, a contract with Vertiba, LLC, to build and configure the permits, land use planning, and code enforcement software system. On February 26, 2018, Council approved by Resolution #35, Series of 2018, change orders totaling $37,000 for the following additions to the system and support: · Online customer complaint portal · On-site support services · Queue management functionality · Public records search functionality · Miscellaneous permit and email enhancements BACKGROUND: Vertiba began work on this project in late May 2017. After kickoff workshops with staff, the system design and build began. The staff and project team have been working with Vertiba, via a series of sprints, to develop and test groups of functionality. As this work has progressed, new requirements that provide additional important system functionality for staff and customers have been identified and requested by departments. Further, a loss of staff in key positions has necessitated additional outside technical assistance. The funding for the previously approved change orders was available through the existing project budget and staff savings re-purposed for consulting support. DISCUSSION At this time, the amount of funding required for additional change orders exceeds $25,000 and so this item is being brought forward for Council approval. The approval request includes Amendments 5 and 6, for a total additional cost of $83,455.00, for the following items in support of assistance and system enhancements during and after go-live: P87 VI.b 2 · Enhanced professional support services · Detailed fee setup and testing, and adjustments to fees for 2019 · Refinement and enhancements of reports · Integration and migration guidance · Enhancements to the applicant portal · Other automation and system enhancements, as requested by staff and prioritized by Directors All work performed under these amendments is on a time and materials basis. Task work orders, inclusive of costs, will be agreed to and signed prior to performing the specific work tasks. RECOMMENDATIONS: Approve the proposed change orders to provide necessary functioning and support for the new permits, planning and code enforcement software system. FINANCIAL/BUDGET IMPACTS: The funding for these change orders is already budgeted for this project. No new funds are being requested. ENVIRONMENTAL IMPACTS: The system will provide electronic end-to-end processing of permits, planning cases, and code enforcement, reducing paper use. ALTERNATIVES: Council could forego approving the change orders. PROPOSED MOTION: That the Council approve Resolution #78, change orders to the Vertiba contract, specifically Amendments 5 and 6. CITY MANAGER COMMENTS: ________________________ ________________________ P88 VI.b RESOLUTION #78 (SERIES OF 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING PROPOSED CONTRACT CHANGE ORDERS BETWEEN THE CITY OF ASPEN AND VERTIBA, LLC, AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE CHANGE ORDERS ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, the City of Aspen has previously entered into a contract with Vertiba, LLC for services related to the design, build and delivery of a permits management sytem; AND WHEREAS, there has been submitted to City Council a request to approve necessary change orders to said contract (Project number 50259-001, dated March 27, 2017) for the purposes of providing the following additional services and functionality: · Enhanced professional support services · Detailed fee setup and testing, and adjustments to fees for 2019 · Refinement and enhancements of reports · Integration and migration guidance · Enhancements to the applicant portal · Other automation and system enhancements, as requested by staff and prioritized by Directors NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO That the City Council of the City of Aspen hereby approves the referenced change orders for the continued development and implementation of the new permits management sytem, between the City of Aspen and Vertiba, LLC, and does hereby authorize the City Manager to execute the change orders on behalf of the City of Aspen, subject to the approval of the City Manager and the City Attorney. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 29th day of May 2018. __________________________________________ Steven Skadron, Mayor I, Linda Manning, 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, May 29, 2018. __________________________________________ Linda Manning, City Clerk P89 VI.b P90 VI.b P91 VI.b P92 VI.b P93 VI.b P94 VI.b P95 VI.b P96 VI.b P97 VI.b P98 VI.b P99 VI.b P100 VI.b P101 VI.b P102 VI.b P103 VI.b P104 VI.b Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Ryan Loebach P.E., Senior Project Manager THRU: Tyler Christoff P.E., Deputy Director of Utilities David Hornbacher, Director of Utilities DATE OF MEMO: May 18th, 2018 MEETING DATE: May 29th, 2018 RE: Resolution #81, Series of 2018 - Aspen Mountain Tank to Little Nell Pump Station Waterline Request for Contract Approval REQUEST: Staff requests that Council approve a contract award to Janckila Construction, Inc in the amount of $39,614 to furnish and install a 12” waterline that directly connects the Aspen Mountain Water Tank to the Little Nell Pump Station. PREVIOUS COUNCIL ACTION: Council approved funding for water distribution replacement through the 2018 budget process. BACKGROUND: Currently potable water to the Little Nell Pump Station (PS) cannot be fed directly from the Aspen Mountain Tank. Instead, water travels through the City’s network of distribution system pipes before reaching the Aspen Mountain Tank. Staff believes that this new connection will: · Provide increased control of Aspen Mountain Tank water levels and water age · Provide a redundant potable water supply to the Little Nell PS. Currently Janckila Construction, Inc (JCI) is under contract with Aspen Skiing Company (SkiCo) to construct for their benefit and use a new, independent, snowmaking pump station. Construction of this work is within 3-feet of the proposed City of Aspen waterline alignment; see Attachment A for construction drawing depicting work scope and proximity. Staff believes it is in the best interests of the City to construct the proposed Utilities 12” waterline at this time because this approach minimizes: · Additional construction-related impacts such as noise and dust that could impact adjacent properties at a later date. · Use of specialized construction methods to place waterline in close proximity to any future structure. P105 VI.c Page 2 of 2 · The shutdown of water infrastructure in the area to facilitate new waterline connections to existing waterlines. · Impacts a grove of aspen trees to the south of the project site. To construct this waterline, staff is requesting a sole-source contract be awarded to JCI. Awarding the waterline construction contract to JCI instead of a separate contractor provides economies of scale, facilitates easier work coordination, shared contractor mobilization costs, and a single point of contact for City staff. FINANCIAL IMPLICATIONS: Staff intends to use planned utility funding for this work. Staff proposes the following funding and expenditures for this project: 2018 Anticipated Expenditures Janckila Construction, Inc Contract $ 39,614.00 City of Aspen Permits (Tree Removal and Grading Permit) $ 8,250.00 Contingency $ 8,136.00 Total $ 56,000.00 2018 Funding Budgeted Utilities 2018 Funding, Project 50750 – 2018 Distribution Replacement (Acct # 421.322.81200.52199.50750) $ 150,000.00 RECOMMENDED ACTION: Staff requests that Council approve contract award to Janckila Construction, Inc in the amount of $39,614 to furnish and install a waterline to connect the Aspen Mountain Tank to the Little Nell Pump Station. CITY MANAGER COMMENTS: ATTACHMENTS: A – Waterline Construction Drawing B – Contract with Janckila Construction, Inc. B – Resolution #081, Series 2018 P106 VI.c RESOLUTION #081 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND JANCKILA CONSTRUCTION, INC AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for Aspen Mountain Tank to Little Nell Pump Station Waterline between the City of Aspen and Janckila Construction, Inc; a true and accurate copy of which is attached hereto as Exhibit “A”. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for Aspen Mountain Tank to Little Nell Pump Station Waterline between the City of Aspen and Janckila Construction, Inc a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 29th day of May, 2018. Steven Skadron, Mayor I, Linda Manning, 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 May 29th, 2018. Linda Manning, City Clerk P107 VI.c P108VI.c ________________________________________________________________________ CC5-971.doc Page: 1 CONTRACT FOR CONSTRUCTION (Short Form) THIS CONTRACT, made and entered into on May 18, 2018, by and between the CITY OF ASPEN, Colorado, hereinafter called the “City”, and Janckila Construction, Inc, hereinafter called the “Contractor”. THEREFORE, in consideration of the mutual covenants and Contracts herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Construction of Project. Contractor agrees to furnish all labor, materials, tools, machinery, equipment, temporary utilities, transportation and any other facilities needed therefor, and to complete in a good, workmanlike and substantial manner the Project as described in the Scope of Work and/or Proposal appended hereto as Exhibit “A” which is incorporated herein as if fully set forth (the “Project”). 2. Plans and Specifications; Compliance with Laws. The Project is to be constructed and completed in strict conformance with the Scope of Work and/or Proposal appended hereto for the same approved in writing by the parties hereto. The Project shall also be constructed and completed in strict compliance with all laws, ordinances, rules, regulations of all applicable governmental authorities, and the City of Aspen Procurement Code, Title 4 of the Municipal Code, including the approval requirements of Section 4- 08-040. Contractor shall apply for and obtain all required permits and licenses and shall pay all fees therefor and all other fees required by such governmental authorities. 3. Payments to Contractor. In consideration of the covenants and Contracts herein contained being performed and kept by Contractor, including the supplying of all labor, materials and services required by this Contract, and the construction and completion of the Project, City agrees to pay Contractor a sum not to exceed Thirty Nine Thousand Six Hundred Fourteen ($39,614) DOLLARS, as shown on Exhibit “A”. 4. Commencement and Completion. Contractor agrees to commence work hereunder immediately upon execution hereof, to prosecute said work thereafter diligently and continuously to completion, and in any and all events to substantially complete the same not later than October 31, 2018, subject to such delays as are permissible under the “Extension of Time for Completion” section of this Contract. P109 VI.c ________________________________________________________________________ CC5-971.doc Page: 2 5. Payment of Bills and Charges. Contractor shall pay promptly all valid bills and charges for material, labor, machinery, equipment or any other service or facility used in connection with or arising out of the Project, and shall obtain periodic releases from all subcontractors and material suppliers supplying labor or materials to the Project concurrently with Contractor's delivering any payment to such subcontractors and material suppliers. Contractor shall indemnify and hold City and City's officers, employees, agents, successors and assigns free and harmless against all expenses and liability suffered or incurred in connection with the claims of any such subcontractors or material suppliers, including but not limited to court costs and attorney's fees resulting or arising therefrom; provided that Contractor shall be excused from this obligation to the extent that City is in arrears in making the payments to Contractor. Should any liens or claims of lien be filed of record against the Property, or should Contractor receive notice of any unpaid bill or charge in connection with construction of the Project, Contractor shall immediately either pay and discharge the same and cause the same to be released of record, or shall furnish City with the proper indemnity either by title policy or by corporate surety bond in the amount of 150% of the amount claimed pursuant to such lien. 6. Releases. Contractor shall, if requested by City, before being entitled to receive any payment due, furnish to City all releases obtained from subcontractors and material suppliers and copies of all bills paid to such date, properly receipted and identified, covering work done and the materials furnished to the Project and showing an expenditure of an amount not less than the total of all previous payments made hereunder by City to Contractor. 7. Hierarchy of Project Documents. This Contract and the Proposal or Scope of Work appended hereto as Exhibit “A” are intended to supplement one another. In case of conflict, however, this Contract shall control both. 8. Changes in the Work. Should the City at any time during the progress of the work request any modifications, alterations or deviations in, additions to, or omissions from this Contract or the Proposal/Scope of Work, it shall be at liberty to do so, and the same shall in no way affect or make void this Contract; but the amount thereof shall be amortized over the remaining term of this Contract and added to or deducted, as the case may be, from the payments set forth in Paragraph 3 above by a fair and reasonable valuation, based upon the actual cost of labor and materials. This Contract shall be deemed to be completed when the work is finished in accordance with the original Proposal or Scope of Work as amended or modified by such changes, whatever may be the nature or the extent thereof. The rule of practice to be observed in fulfillment of this paragraph shall be that, upon the demand of either City or Contractor, the character and valuation of any or all changes, omissions or extra work shall be agreed upon and fixed in writing, signed by City and Contractor, prior to performance. 9. Contractor's Failure to Perform. Should Contractor, at any time during the progress of the work, refuse or fail to supply sufficient material or workmen for the expeditious progress of said work or fail to perform any other provisions of this Contract, City may, upon giving notice in writing to Contractor as provided herein and upon P110 VI.c ________________________________________________________________________ CC5-971.doc Page: 3 Contractor's failure to remedy any such failure within 3 days from receipt of such notice, terminate this Contract and provide the necessary material and workmen to finish the work and may enter upon the Property for such purpose and complete said work. The expense thereof shall be deducted from the payments remaining under Paragraph 3 above, or if the total cost of the work to City exceeds the amount of such remaining payments, Contractor shall pay to City upon demand the amount of such excess in addition to any and all other damages to which City may be entitled. In the event of such termination, City may take possession of all materials, equipment and appliances belonging to Contractor upon or adjacent to the Property upon which said work is being performed and may use the same in the completion of said work. Such termination shall not prejudice or be exclusive of any other legal rights which City may have against Contractor. 10. Extension of Time for Completion. Time is of the essence of this Contract and Contractor shall substantially complete the work during the time provided for herein. However, the time during which Contractor is delayed in said work by (a) the acts of City or its agents or employees or those claiming under Contract with or permission from City, or (b) the acts of God which Contractor could not have reasonably foreseen and provided against, or (c) unanticipated stormy or inclement weather which necessarily delays the work, or (d) any strikes, boycotts or obstructive actions by employees or labor organizations and which are beyond the control of Contractor and which it cannot reasonably overcome, or (e) the failure of City to make progress payments promptly, shall be added to the time for completion of the work by a fair and reasonable allowance. Contractor recognizes, however, that the site of the work is in the Rocky Mountains at a high elevation where inclement whether conditions are common. This fact has been considered by Contractor in preparing its Proposal and or agreeing to the Scope of Work. Furthermore, Contractor shall have the right to stop work if any payment, including payment for extra work, is not made to Contractor as provided in this Contract. In the event of such nonpayment, Contractor may keep the job idle until all payments then due are received. 11. Unforeseen Conditions. It is understood and agreed that Contractor, before incurring any other expenses or purchasing any other materials for the Project, shall proceed to inspect the work site and all visible conditions and that if, at the time of inspection therefor, the Contractor finds that the proposed work is at variance with the conditions indicated by the Proposal, Scope of Work, or information supplied by City, or should Contractor encounter physical conditions below the surface of the ground of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract or inherent in a work site located in the Rocky Mountains, Contractor shall so notify City, and City shall at that time have the right and option to immediately cancel and terminate this Contract or to instruct Contractor to continue the work and add the additional amount attributable to such unforeseen conditions to the payments due Contractor as set forth above. It is agreed that in the event of any cancellation by City in accordance with this section, Contractor shall be paid the actual costs of the work done prior to the time of cancellation. In computing such costs, building permit fees, insurance and such financing P111 VI.c ________________________________________________________________________ CC5-971.doc Page: 4 and title charges as are not refundable shall be included; provided that supervision time, office overhead and profit shall not be included in such costs to be refunded to Contractor by reason of such cancellation. 12. Acceptance by City. No payment hereunder nor occupancy of said improvements or any part thereof shall be construed as an acceptance of any work done up to the time of such payment or occupancy, but the entire work is to be subject to the inspection and approval of City at the time when Contractor notifies City that the Project has been completed. 13. Notice of Completion; Contractor's Release. City agrees to sign and file of record within five (5) days after the substantial completion and acceptance of the Project a Notice of Completion. If City fails to so record the Notice of Completion within said five (5) day period, City hereby appoints Contractor as City's agent to sign and record such Notice of Completion on City's behalf. This agency is irrevocable and is an agency coupled with an interest. Contractor agrees upon receipt of final payment to release the Project and property from any and all claims that may have accrued against the same by reason of said construction. If Contractor faithfully performs the obligations of this Contract on its part to be performed, it shall have the right to refuse to permit occupancy of any structures by City or City's assignees or agents until the Notice of Completion has been recorded and Contractor has received the payment, if any, due hereunder at completion of construction, less such amounts as may be retained pursuant to mutual Contract of City and Contractor under the provisions of Paragraph 3 above. 14. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent and for an amount represented by the degree or percentage such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the wrongful act, omission, error, professional error, mistake, negligence, or other fault of the Professional, any subcontractor of the Professional, or any officer, employee, representative, or agent of the Professional or of any subcontractor of the Professional, or which arises out of any workmen's compensation claim of any employee of the Professional or of any employee of any subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse the Professional for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. P112 VI.c ________________________________________________________________________ CC5-971.doc Page: 5 15. Insurance. a. The Contractor agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to the terms of this Contract by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. b. Contractor shall procure and maintain, and shall cause any subcontractor of the Contractor to procure and maintain, the minimum insurance coverages listed in the Supplemental Conditions. If the Supplemental Conditions do not set forth minimum insurance coverage, then the minimum coverage shall be as set forth below. Such coverage shall be procured and maintained with forms and insurance acceptable to City. All coverage shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Contractor pursuant to the terms of this Contract. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. 1. Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements of this paragraph. 2. Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall include coverage for explosion, collapse, and underground hazards. The policy shall contain a severability of interests provision. 3. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Contractor's owned, hired and non-owned vehicles assigned to or used in performance of the services. The policy shall contain a severability of interests provision. If the Contractor has no P113 VI.c ________________________________________________________________________ CC5-971.doc Page: 6 owned automobiles, the requirements of this Section 5.4.2.3 shall be met by each employee of the Contractor providing services to the City under this contract. c. Except for any Contractor Liability insurance that may be required, the policy or policies required above shall be endorsed to include the City of Aspen and the City of Aspen's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City of Aspen, its officers or employees, or carried by or provided through any insurance pool of the City of Aspen, shall be excess and not contributory insurance to that provided by Contractor. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Contractor shall be solely responsible for any deductible losses under any policy required above. d. The certificate of insurance provided to the City of Aspen shall be completed by the Contractor's insurance agent as evidence that policies providing the required coverage, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City of Aspen prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverage afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City of Aspen. e. In addition, these Certificates of Insurance shall contain the following clauses: Underwriters and issuers shall have no right of recovery or subrogation against the City of Aspen, it being the intention of the parties that the insurance policies so effected shall protect all parties and be primary coverage for any and all losses covered by the above-described insurance. To the extent that the City's insurer(s) may become liable for secondary or excess coverage, the City's underwriters and insurers shall have no right of recovery or subrogation against the Contractor. The insurance companies issuing the policy or policies shall have no recourse against the City of Aspen for payment of any premiums or for assessments under any form of policy. Any and all deductibles in the above-described insurance policies shall be assumed by and be for the amount of, and at the sole risk of the Proposer. Location of operations shall be: "All operations and locations at which work in connection with the referenced project is done." Certificates of Insurance for all renewal policies shall be delivered to the Architect at least fifteen (15) days prior to a policy's expiration date except for any policy expiring on the expiration date of this Contract or thereafter. P114 VI.c ________________________________________________________________________ CC5-971.doc Page: 7 e. Failure on the part of the Contractor to procure or maintain policies providing the required coverage, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith. All moneys so paid by City shall be repaid by Contractor to City upon demand, or City may offset the cost of the premiums against moneys due to Contractor from City. f. City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. 16. Damage or Destruction. If the Project is destroyed or damaged by any accident or disaster, such as fire, storm, flood, landslide, earthquake, subsidence, theft or vandalism, any work done by Contractor in rebuilding or restoring the work shall be paid for by City as extra work under Paragraph 8 above. If, however, the estimated cost of replacement of the work already completed by Contractor exceeds twenty (20%) percent of the insured sum set forth in Paragraph 14 above, City shall have the option to cancel this Contract and, in such event, Contractor shall be paid the reasonable cost, including net profit to Contractor in the amount of ten (10%) percent, of all work performed by Contractor before such cancellation. 17. Notices. Any notice which any party is required or may desire to give to any other party shall be in writing and may be personally delivered or given or made by United States mail addressed as follows: To City: City of Aspen _________________________________ 130 South Galena Street Aspen, Colorado 81611 To Contractor: Janckila Construction 75 Buckskin Drive Carbondale, CO 81623 subject to the right of either party to designate a different address for itself by notice similarly given. Any notice so given, delivered or made by United States mail, shall be deemed to have been given the same day as transmitted by telecopier or delivered personally, one day after consignment to overnight courier service such as Federal P115 VI.c ________________________________________________________________________ CC5-971.doc Page: 8 Express, or two days after the deposit in the United States mail as registered or certified matter, addressed as above provided, with postage thereon fully prepaid. 18. Inspections; Warranties. (a) Contractor shall conduct an inspection of the Project prior to final acceptance of the work with City. (b) Contractor shall schedule and cause to be performed all corrective activities necessitated as a result of any deficiencies noted on the final inspection prior to acceptance. The costs of material and/or labor incurred in connection with such corrective activities shall not be reimbursed or otherwise paid to Contractor. (c) Contractor shall obtain, at City's expense, third party warranty contracts (to be entered into by City). 19. Licensure of Contractor. Contractor hereby represents and warrants to City that Contractor is duly licensed as a general contractor in the State of Colorado, and if applicable, in the County of Pitkin. 20. Independent Contractor. It is expressly acknowledged and understood by the parties that nothing in this Contract shall result in, or be construed as establishing an employment relationship. The Contractor shall be, and shall perform as, an independent the Contractor who agrees to use his best efforts to provide the Work on behalf of the City. No agent, employee, or servant of the Contractor shall be, or shall be deemed to be, the employee, agent or servant of the City. The City is interested only in the results obtained under the Contract Documents. The manner and means of conducting the Work are under the sole control of the Contractor. None of the benefits provided by the City to its employees including, but not limited to, worker's compensation insurance and unemployment insurance, are available from the City to the employees, agents or servants of the Contractor. The Contractor shall be solely and entirely responsible for its acts and for the acts of the Contractor's agents, employees, servants and subcontractors during the performance of the Contract. THE CONTRACTOR, AS AN INDEPENDENT CONTRACTOR, SHALL NOT BE ENTITLED TO WORKERS' COMPENSATION BENEFITS AND SHALL BE OBLIGATED TO PAY FEDERAL AND STATE INCOME TAX ON ANY MONEYS EARNED PURSUANT TO THE CONTRACT. 21. Assignment. This Contract is for the personal services of Contractor. Contractor shall not transfer or assign this Contract or its rights and responsibilities under this Contract nor subcontract to others its rights and responsibilities under this Contract, and any attempt to do so shall be void and constitute a material breach of this Contract. 22. Successors and Assigns. Subject to paragraph 22, above, this Contract shall be binding on, and shall inure to the benefit of, City and Contractor and their respective successors and assigns. P116 VI.c ________________________________________________________________________ CC5-971.doc Page: 9 23. Entire Contract. This Contract contains the entire Contract between City and Contractor respecting the matters set forth herein and supersedes all prior Contracts between City and Contractor respecting such matters. 24. Waivers. No waiver by City or Contractor of any default by the other or of any event, circumstance or condition permitting either to terminate this Contract shall constitute a waiver of any other default or other such event, circumstance or condition, whether of the same or of any other nature or type and whether preceding, concurrent or succeeding; and no failure or delay by either City or Contractor to exercise any right arising by reason of any default by the other shall prevent the exercise of such right while the defaulting party continues in default, and no waiver of any default shall operate as a waiver of any other default or as a modification of this Contract. 25. Remedies Non-Exclusive. No remedy conferred on either party to this Contract shall be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy. 26. Governing Law. This Contract shall be governed by, and construed in accordance with, the laws of the State of Colorado. Venue for any action at law or equity shall be Pitkin County. 27. Attorneys' Fees. If either party to this Contract shall institute any action or proceeding to enforce any right, remedy or provision contained in this Contract, the prevailing party in such action shall be entitled to receive its attorneys' fees in connection with such action from the non-prevailing party. 28. Severability. Any provision in this Contract which is held to be inoperative, unenforceable or invalid shall be inoperative, unenforceable or invalid without affecting the remaining provisions, and to this end the provisions of this Contract are declared to be severable. 29. Nondiscrimination. During the performance of this Contract, the Contractor agrees as follows: The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, marital status, sexual orientation, being handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. The Contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, sex, age, sexual orientation, handicapped, a disadvantaged person, or a disabled or Viet Nam era veteran. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. P117 VI.c ________________________________________________________________________ CC5-971.doc Page: 10 30. Prohibited Interest. No member, officer, or employee of the City of Aspen, Pitkin County or the Town of Snowmass Village shall have any interest, direct or indirect, in this Contract or the proceeds thereof. 31. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflict of Interest: a. The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon a Contract or understanding for a commission, percentage, brokerage, or contingency fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. b. The Contractor agrees not to give any employee or former employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Contract or to any solicitation or proposal therefor. c. It shall be a material breach of the Contract for any payment, gratuity, or offer of employment to be made by or on behalf of a Subcontractor under a contract to the prime Contractor or higher tier Subcontractor or any person associated therewith, as an inducement for the award of a Subcontract or order. The Contractor is prohibited from inducing, by any means, any person employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled. The Contractor shall comply with all applicable local, state and federal "anti-kickback" statutes or regulations. 32. Payments Subject to Annual Appropriations. If the contract awarded extends beyond the calendar year, nothing herein shall be construed as an obligation by the City beyond any amounts that may be, from time to time, appropriated by the City on an annual basis. It is understood that payment under any contract is conditional upon annual appropriation of funds by said governing body and that before providing services, the Contractor, if it so requests, will be advised as to the status of funds appropriated for services or materials and shall not be obligated to provide services or materials for which funds have not been appropriate. 33. Illegal Aliens – CRS 8-17.5-101 & 24-76.5-101. a. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added new statutes relating to the employment of and contracting with illegal aliens. These new laws prohibit all state agencies and political subdivisions, including the City of Aspen, from knowingly hiring an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new P118 VI.c ________________________________________________________________________ CC5-971.doc Page: 11 laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with the requirements of this new law. b. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. b. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. “Basic Pilot Program” means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. “Public Contract for Services” means this Agreement. “Services” means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. c. By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. d. Contractor hereby certifies that: (i) Contractor shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hired for employment in the United States under the Public Contract for Services. (ii) Contractor shall not enter into a contract with a subcontractor that fails to confirm to the Contractor that the subcontractor shall not knowingly hire new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (iii) Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not P119 VI.c ________________________________________________________________________ CC5-971.doc Page: 12 employ any new employees who are not eligible for employment in the United States; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Contractor is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. (iv) Contractor shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. (v) If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with a new employee who is an illegal alien, Contractor shall: (1) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor has newly employed or contracted with an illegal alien; and (2) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the new employee who is an illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. (vi) Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S. (vii) If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Contractor’s violation of Subsection 8-17.5-102, C.R.S. P120 VI.c ________________________________________________________________________ CC5-971.doc Page: 13 (ix) If Contractor operates as a sole proprietor, Contractor hereby swears or affirms under penalty of perjury that the Contractor (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall produce one of the forms of identification required by CRS 24-76.5-103 prior to the effective date of this Agreement. 34. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement binding on the Parties, notwithstanding the possible event that all Parties may not have signed the same counterpart. Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or enforceability of the Agreement solely because it is in electronic form or because an electronic record was used in its formation. The Parties agree not to object to the admissibility of the Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a paper copy of a document bearing an electronic signature, on the ground that it is an electronic record or electronic signature or that it is not in its original form or is not an original. IN WITNESS WHEREOF, the parties agree hereto have executed this Contract for Construction on the date first above written. ATTESTED BY: CITY OF ASPEN, COLORADO By: ____________ Title:_________________________ APPROVED AS TO FORM: By: City Attorney P121 VI.c ________________________________________________________________________ CC5-971.doc Page: 14 ATTESTED BY: CONTRACTOR: __________________________ By: Brett Byman Title: COO & Vice President Note: Certification of Incorporation shall be executed if Contractor is a Corporation. If a partnership, the Contract shall be signed by a Principal and indicate title. P122 VI.c ________________________________________________________________________ CC5-971.doc Page: 15 CERTIFICATE OF INCORPORATION (To be completed if Contractor is a Corporation) STATE OF ____________________) ) SS. COUNTY OF __________________) On this _______ day of ________________________________, 20____, before me appeared ___________________________________________________, to me personally known, who, being by me first duly sworn, did say that s/he is ___________________________________ of _______________________________________________________ and that the seal affixed to said instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors, and said deponent acknowledged said instrument to be the free act and deed of said corporation. WITNESS MY HAND AND NOTARIAL SEAL the day and year in this certificate first above written. ______________________________________ Notary Public ______________________________________ Address My commission expires: _______________________ P123 VI.c TO: Mayor and City Council FROM: Steve Aitken CGCS, Director of Golf THRU: Steve Barwick, City Manager THRU: Jeff Woods, Parks and Recreation Manager DATE: May 18, 2018 RE: Resolution #85, Series of 2018 - Golf Steep Terrain Mower Contract REQUEST OF COUNCIL: The Golf Department is replacing its steep terrain mower from its fleet. This replacement has been approved by the City Manager and Council thru the 2018 Budget process. Staff is requesting Council to approve the contract with L.L. Johnson for replacement of the Steep Terrain Mower. DISCUSSION: This fleet replacement has been budgeted for during the 2018 budget process. The replacement is necessary to keep the current fleet of mowers in a good operating state. The mower being replaced was purchased new in 2003 and has served the golf operation well. The replaced mower is part of the contract for approval and will be used as trade-in. The trade in value is only $100.00 due to a recent failure of the hydraulic system to the mower being replaced. FINANCIAL/BUDGET IMPACTS: Staff has reviewed and demonstrated various types of Steep Terrain Mowers and has determined that the Toro Grounds Master 3500 D best meets the needs for the golf operation. This selection was based on superior performance and reliability. The Golf Fund has budgeted $41,500.00 for the replacement of the Steep Terrain Mower. The contract price for the purchase, with the trade in of the old Steep Terrain Mower is $32,626.00. ENVIRONMENTAL IMPACTS: Purchasing this mower will reduce noise and air pollution compared to the one we are replacing. In addition, the new mower provides for improved fuel economy. RECOMMENED ACTION: Staff recommends the approval of the contract with LL Johnson for the purchase of the new Steep Terrain Mower. CITY MANAGER COMMENTS:__________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ P124 VI.d RESOLUTION #085 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND LL JOHNSON DISTRIBUTING COMPANY AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for a Toro Groundsmaster Steep Terrain Mower between the City of Aspen and LL Johnson Distributing Company, a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for a Toro Groundsmaster Steep Terrain Mower between the City of Aspen and LL Johnson Distributing Company, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 29th day of May 2018. Steven Skadron, Mayor I, Linda Manning, 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, May 29, 2018. Linda Manning, City Clerk P125 VI.d CITY OF ASPEN STANDARD FORM OF AGREEMENT SUPPLY PROCUREMENT AGREEMENT City of Aspen Project No.: 2018-50783. AGREE1\1ENT made as of 18th day of May , in the year 2018. BETWEEN the City: The City of Aspen do Aspen Golf Club 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5055 And the Vendor: LL Johnson Di stributing Company do Don Swanberg Phone : ----------- Summary Description ofltems to be Purchased: I Toro Groundsmaster 3500-D Model 30807 Contract Amount: Total: $32,626.00 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. City Council Approval: Date:� 21 1 cJ.Ol'b Resolution No.: 065 Exhibits appended and made a part of this Agreement: Exhibit A: Li st of supp lies, equipmen t, or mate rial s to be purchased. P126 VI.d P127 VI.d P128 VI.d P129 VI.d P130 VI.d EXHIBIT A SUPPLY PROCUREMENT AGREEMENT (1)Toro Groundsmaster 3500-D Model 30807 with 27" Contour Plus rotary decks, 68" width of cut, Side Winder side to side cutting unit transfer, three-wheel drive Series-Parall el traction, power steering, and powered by a 24.8hp Kubota diesel engine Trade value of GM3500-D (no hydraulic drive system) ........ Total $32,726.00 $100.00 $32,626.00 The above pricing is per our NIPA agreement #2017025-MAPO and includes all freight, set-up and delivery. P131 VI.d Page 1 of 2 MEMORANDUM TO: Mayor and City Council FROM: Cory Vander Veen, Recreation Director THRU: Jeff Woods, Parks and Recreation Manager DATE OF MEMO: 5/16/2018 MEETING DATE: 5/29/18 RE: Resolution #82 Series of 2018- Aquatic Score board REQUEST OF COUNCIL: The Recreation Department is requesting approval of a contract with Colorado Time systems for replacement of the Moore Aquatics score board. PREVIOUS COUNCIL ACTION: The score board purchase and replacement are included in the 2018 Asset Management Plan. City Council approved the Asset Management Plan in the 2018 budget. BACKGROUND: This score board was installed in 2004 and has lived its useful life. On average score boards in aquatic facilities last 5-10 years depending on the natatorium environment. This turn key score board system is a full color LED for hosting aquatics events. This system includes touch pads, computer system, microphone and installation above the lap pool. DISCUSSION: The Recreation Department utilizes this score board for hosting events and swimming competition year-round. This score board will display swimming, diving, water polo, pace clock, and synchronized swimming functions, competitors’ names, full matrix graphics and animation, live video, and has advertising capabilities. FINANCIAL/BUDGET IMPACTS: The contract with Colorado Time Systems in the amount of $44,000 is within Capital Asset budget. ENVIRONEMNTAL IMPACTS: The new score board will be more energy efficient and will consist of all LED lights. RECOMMENDED ACTION: Recreation Staff recommends approval of the contract with Colorado Time System for the aquatics scoreboard. P132 VI.e Page 2 of 2 PROPOSED MOTION: “I move to approve Resolution # 82, series of 2018, on the consent calendar of Tuesday May 29th, 2018. CITY MANAGER COMMENTS: ATTACHMENTS: Attachment A- contract with Colorado Time Systems P133 VI.e RESOLUTION #82 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND COLORADO TIME SYSTEMS AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for an Aquatic Score Board and Timing System between the City of Aspen and Colorado Time Systems a true and accurate copy of which is attached hereto as Exhibit “A”; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for an Aquatic Score Board and Timing System between the City of Aspen and Colorado Time Systems a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 29th day of May 2018. Steven Skadron, Mayor I, Linda Manning, 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 May 29, 2018. Linda Manning, City Clerk P134 VI.e P135VI.e P136VI.e P137VI.e P138VI.e P139VI.e P140VI.e P141VI.e P142VI.e Regular Meeting Aspen City Council May 14, 2018 1 SPECIAL ORDERS OF THE DAY ............................................................................................................. 2 CITIZEN COMMENTS ............................................................................................................................... 2 CITY COUNCIL COMMENTS ................................................................................................................... 3 CITY MANAGER REPORTS ..................................................................................................................... 3 BOARD REPORTS ...................................................................................................................................... 3 CONSENT CALENDAR ............................................................................................................................. 3  Resolution #74, Series of 2018 – Adoption of Updated Pitkin County Hazard Mitigation Plan .......... 4  Resolution #76, Series of 2018 – Change Order to Contract for As-Needed GIS Services ................. 4  Resolution #75, Series of 2018 – Stage One Water Shortage ............................................................... 4  Resolution #77, Series of 2018 – Contract with L.L Johnson for Rough Mower ................................. 4  Minutes – April 30, 2018 ...................................................................................................................... 4 ORDINANCE #12, SERIES OF 2018 .......................................................................................................... 4 ORDINANCE #7, SERIES OF 2018 – Spring Supplemental Budget .......................................................... 4 ORDINANCE #14, SERIES OF 2018 – Harassing Wildlife ....................................................................... 5 ORDINANCE #10, SERIES OF 2018 – Revisions to Implement Performance Pricing for Parking ........... 6 ORDINANCE #11, SERIES OF 2018 – Lot 20 Water Service Agreement ................................................. 6 EXECUTIVE SESSION ............................................................................................................................... 7 P143 VI.f Regular Meeting Aspen City Council May 14, 2018 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Myrin, Hauenstein Frisch and Mullins present. SPECIAL ORDERS OF THE DAY Mayor Skadron said we have some very special awards tonight. The first is the Frasier creative writing contest. Ian Grey, parks, said this will be celebrated as part of Arbor Day. He turned it over to Jill Shelley. She said every year we sponsor a writing contest for 3rd and 4th graders. This year the theme was trees. Taj and Carter won for 4th grade. Councilwoman Mullins asked for copies of the stories. Mr. Grey said they will be on display at the Arbor Day celebration. Taj said his story is about a tree with no imagination who was then blessed by the rain queen. Carter wrote about a Roman god myth. Mayor Skadron congratulated both. Mayor Skadron read a proclamation setting forth a day for planting trees and setting forth a special day known as Arbor day on May 19th. Mayor Skadron read the Kids First proclamation celebrating the month of the young child. Shirley Ritter, kids first, said this year marks the 28th year of the annual children’s parade. The parade will be on May 22nd at 10am. Some of Aspen Mountain tots are here with us. Mayor Skadron introduced the team from water. He read a proclamation about safe drinking water. Few things are as important as water, particularly as our drinking water. The water team introduced themselves. Black diamond award – presented to an employee who goes above and beyond Steve Barwick, city manager, said we recognize Ruth Kinney, IT, for leading the implementation and design of the new website and for being on time and under budget by $20,000. She exemplified teamwork and creativity while leading city staff. The effort was coordinated across city departments, she learned their needs and targeted training. The bottom line is we have a much improved website and better user experience. Ms. Kinney said it was a team effort and she had a great web team. She thanked Karen, Michelle, Mitzi and Paul. Over 50 web masters from each department. CITIZEN COMMENTS 1. Toni Kronberg talked about the work session on Lift 1A tomorrow. With the teamwork it is getting done. She would like to know with the next reading on ordinance 7 and the mobility lab, she would like $40,000 included for an aerial connection from Brush Creek to Aspen. 2. Lee Mulcahy gave council 780 signatures asking for a peaceful resolution. He said he volunteered thousands of hours to the community over the years and that he is here in peace and love. He said this looks like political retaliation to the outside world. He begged the mayor to meet with him and his mom and the sheriff. Councilman Hauenstein said for a long time people have said there is retaliation and you are accepting it as fact. I have seen no proof of anyone being retaliated against. I think this was an APCHA administrative issue that was not led by the Mayor. I have not seen him leading any type of effort to deprive you of your housing. Councilman Myrin said my suggestion to Lee is to make a CORA request asking if APCHA has treated anyone differently and let them stay in their space over a technicality. If so that would bring some weight to the issue. The key is if people are not treated differently. P144 VI.f Regular Meeting Aspen City Council May 14, 2018 3 CITY COUNCIL COMMENTS Councilman Myrin said on the city logo, he is excited to see it united across all departments. It will be a huge benefit. He was disappointed in the process as to why it was not reviewed by the community or council. To me it appears very sterile and the letters all in caps seems like we are screaming instead of more modest in lower case. Every time I see it I cringe. He said he would wait to November to start the city hall construction as I mentioned at the last meeting. Councilman Hauenstein said he had the honor of going to Maine for the weekend for my mother in laws 90th birthday. He saw John Bakken, gymnastic coach, at the airport. The ladies are competing in level 10 nationals for the first time. Councilman Frisch said he is not sure if we keep up how many square feet is taken up by construction in May but this has to be a record. He is not sure if there is something we can do for next year. Mayor Skadron gave a heads up to City Council. We have had some favorable agendas for getting out of here at a reasonable time. We are expected to be hit with some intense land use agendas this summer. At the end of last season Scott Miller bought a couple e bikes for his departments. I toured the bridge today and Trish was on an e bike and said she takes three to four trips a day on the e bike. Those are less car trips. May 22nd at 10 am is the children’s parade. Come out and march with the kids. On a personal note, on Saturday I met Austin, Matt and Ben from parks. We met at the Haden trail head hiked and skinned and on the way in we say a mountain lion eating an animal carcass and a bear. While the skiing is great the conditions are treacherous. Be careful out there. CITY MANAGER REPORTS Trish Aragon, engineering, said the Castle Creek bridge is tracking well. The schedule is going well. We are working on the north side of Hallam and bridge deck repairs on the south side. There is an update meeting Wednesday next week at 4 pm or call in at 5 pm. The hold will start June 12 until August 14. The restart will begin on august 14th. We are looking to see if we can push back the August date but don’t have an answer yet. The deck needs repair. We are doing that and expected that. It is not anything unusual yet. BOARD REPORTS Mayor Skadron said the RFTA retreat was last Thursday. The main focus is on the proposed mill levy. There are eight jurisdictions voting on it. We settled on 3.65. There will be more discussions over the next few months on whether to proceed. It is funding for the next decade of RFTA to support valley needs to reinvest in itself. CONSENT CALENDAR Reso #76 – As- needed GIS services Councilman Hauenstein said he discussed this with Trish. GIS components are referenced in a number of supplemental requests. Long term we should be looking at being able to do these IT functions in house to save money and stream line these functions. Reso #74 – hazard mitigation plan Councilwoman Mullins asked what is the status with FEMA. Bill Linn, police, replied it is all through the approval process and just needs council approval. Councilwoman Mullins said it is a fascinating report and looks like we are doing our part. She would like to see us take a look at our resiliency plan again. Mayor Skadron asked to change the minutes board reports from 2014 to 2040. P145 VI.f Regular Meeting Aspen City Council May 14, 2018 4 · Resolution #74, Series of 2018 – Adoption of Updated Pitkin County Hazard Mitigation Plan · Resolution #76, Series of 2018 – Change Order to Contract for As-Needed GIS Services · Resolution #75, Series of 2018 – Stage One Water Shortage · Resolution #77, Series of 2018 – Contract with L.L Johnson for Rough Mower · Minutes – April 30, 2018 Councilman Frisch moved to approve the Consent Calendar; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE #12, SERIES OF 2018 – Spring Budget – Component Unit Funds: APCHA, Smuggler and Truscott Phase II Pete Strecker, finance, told the Council this is for the housing properties specifically APCHA, Smuggler Truscott phase II housing. PC workstation allotments and a single FTE as well as the carry forward remaining balance. Councilman Frisch moved to read Ordinance #12, series of 2018; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE NO. 12 (SERIES OF 2018) AN ORDINANCE APPROPRIATING AN INCREASE IN THE HOUSING ADMINISTRATION FUND OF $21,132 AND TRUSCOTT PHASE II HOUSING FUND OF $64,847. Councilwoman Mullins moved to adopt Ordinance #12, Series of 2018 on first reading; seconded by Councilman Hauenstein. Roll call vote. Councilmembers Mullins, yes; Hauenstein, yes; Myrin, yes; Frisch, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #7, SERIES OF 2018 – Spring Supplemental Budget Mr. Strecker stated this will amend the 2018 budget. We are requesting 40 million. It is not all new money. 32 million is carryforward or appropriation from 2017. 4 million is items you have seen since the start of 2018. 1 million is in new requests or three percent. Capital is the majority of the carryforward. Six projects make up 27 million, mostly multi year efforts. Councilman Frisch asked what is the difference between armory and Galena. Mr. Strecker replied armory is this building and Galena is the one next to the parking structure. We also have some operational carryforward with pc and work station allotments. There is also some project specific with the mobility lab and scanning projects. In the financial policies there is a frugal incentivization that tries to combat the use it or lose it with a big spending spree at the end of the year allowing one time spending needs with the reminder going back to fund balance. New requests are 1.75 new FTE, software replacement, up hill economy and the 2020 census. Councilwoman Mullins said we give grass roots a grant every year, what is the 5,600. Mr. Strecker said we received an increase in their fees after the 2018 budget. Councilwoman Mullins said on the census project do you know if we are having conversations with the county or other towns in doing a coordinated effort. Ms. Garrow said we have been in contact with Snowmass Village and the county with sending letters and anticipate them sharing costs next year. Councilwoman Mullins said for the Buttermilk bicycle master plan, we have not resolved what the route into town will be. Austin Weiss, parks, said the route will be to cross the highway at Buttermilk then use the AABC trail. The best route is past the chapel where the bridge is. Councilwoman Mullins asked for the Burlingame settlement, what is the payment going to. Jack Wheeler, asset, said the agreement is for the close out Burlingame I irrigation issues and storm water infrastructure. This covers two of the three outstanding issues. Councilman Myrin asked for the uphill economy, $100,000 how does it relate to what has been spent since day one. Ms. Garrow said we can provide that for second reading. This is more than some past efforts. The draft of the initial plan was $30,000. This is pushing us to the implementation phase. Councilman Myrin asked how will this move us forward. Ms. Garrow said the funding is for two efforts, uphill recreation plan and a regional approach. We are in the final running for a state grant for that. The P146 VI.f Regular Meeting Aspen City Council May 14, 2018 5 second piece is the economic vitality piece and the uphill events. Ms. Garrow said we will be at the June work session on the council goals. Councilman Hauenstein asked what is the current back log for the zoning enforcement officer. Ms. Garrow replied it changes daily. Right now we are at 105 permits in the queue. There are three main review agencies. Adding this FTE would put us parallel in staffing. It is not just changing process but capacity. Councilman Hauenstein asked what are the fund balances for the savings. Mr. Strecker replied they are on page eight. Mayor Skadron said for the Castle Creek music school trail, what percent of the total is city versus county responsibility. Mr. Weiss said we are talking with the county about the pro rated share. The planning effort is more of a 50 50 split. Construction is more pro rated. Roughly 25 percent is city. Councilman Hauenstein moved to read Ordinance #7, Series of 2018; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE NO. 7 (SERIES OF 2018) AN ORDINANCE APPROPRIATING AN INCREASE IN THE ASSET MANAGEMENT PLAN FUND EXPENDITURES OF $16,964525, AN INCREASE IN THE GENERAL FUND OF $3,989,416, AN INCREASE IN THE PARKS AND OPEN SPACE FUND OF $2,453,263, AN INCREASE IN THE WHEELER OPERA HOUSE FUND OF $311,714\7, AN INCREASE IN THE TRANSPORTATION FUND OF $1,577,434, AN INCREASE IN THE HOUSING DEVELOPMENT FUND OF $4,844,002, AN INCREASE IN THE KIDS FIRST FUND OF $494,787, AN INCREASE IN THE STORMWATER FUND OF $1,916,688, AN INCREASE IN THE ELECTRIC UTILITY FUND OF $1,090,488, AN INCREASE IN THE PARKING FUND OF $220,812, AN INCREASE IN THE GOLF COURSE FUND OF $105,500, AN INCREASE IN THE TRUSCOTT HOUSING FUND OF $42,150, AN INCREASE IN THE MAROLT HOUSING FUND OF $9,000, AN INCREASE IN THE EMPLOYEE HOUSING FUND OF $3,980,453, AN INCREASE IN THE INFORMATION TECHNOLOGY FUND OF $350,009. Councilman Hauenstein moved to adopt Ordinance #7, Series of 2018 on first reading; seconded by Councilman Frisch. Roll call vote. Councilmembers Frisch, yes; Myrin, yes; Hauenstein, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #14, SERIES OF 2018 – Harassing Wildlife Audrey Radlinski, representing community response, told the Council, the request is for the city to adopt an ordinance prohibiting the harassment of wildlife. There is a safety concern regarding public and wildlife, particularly bears on the Hyman mall. Last year there was a situation with a mother bear and cubs on the mall for about nine hours. We try to educate and protect the public. There was a situation where a human mother and child chased the bear trying to get a selfie with the bear. We would like an enforcement tool where we can cite people. It would be a $100 fine for a first offense, $200 fine for second and a $500 fine and a municipal court appearance with a third offense. We give people warnings. The public has a false sense of security when bears are in urban areas particularly when we are there and there is a barrier. The ability to enforce will serve as an education tool as well. Councilwoman Mullins asked how would you make someone aware of this. Ms. Radlinski replied we have our bear aware campaign, we provide info at the airport and we will hit up every hotel. Bill Linn, police, said we repeat warnings at the scenes. Councilwoman Mullins said she hopes it is effective and powerful enough and makes a difference. Ms. Radlinski said we hold the bears accountable when they get into trash and break into homes. Last year there were 16 bears euthanized and three relocated. This ordinance holds people accountable. Councilwoman Mullins asked what are the fines for not taking care of your garbage. Ms. Radlinski replied 250, 500 and 999 dollars. Councilman Myrin asked would you propose matching those. Councilwoman Mullins replied you could. Councilman Myrin said we need something that supersedes the curiosity. A $100 fine doesn’t seem enough. Mr. Linn said the $100 fine on the first offence matches Pitkin County and the state. Councilman Myrin said if there is support on council I would support it but it does not supersede the curiosity. Ms. Radlinski said this ordinance is not P147 VI.f Regular Meeting Aspen City Council May 14, 2018 6 limited to bears but applies to all wildlife. Councilman Myrin said the impact to businesses when we close the malls is certainly more than 100 dollars. Councilman Hauenstein said we need to actively enforce the ordinance. It means nothing if we don’t enforce it. He supports the ordinance but thinks the penalty should be enough to make a difference. The enforcement should be active and aggressive. Councilman Frisch said he feels bad for the bears and is supportive of this. He thinks we need to own up to the historic trees we have around here and look at ourselves and make sure we have the right city forest policy. He is fully supportive of the fairly stiff fines. Ms. Radlinski said the ordinance is one piece of a multi department effort to handle bears. We are going to power wash the blossoms off the trees so they don’t bear fruit and collar problem trees. Mayor Skadron said what does it look like when you approach a visitor who approaches a bear while holding a baby and tell them you are going to fine them. Ms. Radlinski said removing them to a safe location would be my first priority. Councilman Myrin moved to read Ordinance #14, Series of 2018; seconded by Councilman Frisch. All in favor, motion carried. ORDINANCE NO. 14 (SERIES OF 2018) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING TITLE 6 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN – ANIMALS AND FOWL – TO ADD A NEW SECTION 06.04.110 ENTITLED: HARASSING WILDLIFE PROHIBITED. Councilman Myrin moved to adopt Ordinance #14, Series of 2018 on first reading with amendment to change the fine amount from 100, 250, 500 dollars to 250, 500 and 999 for a first second and third offense with a municipal court appearance on the third offense.. Supported by Councilman Hauenstein. Councilman Myrin stated it would match the garbage fine. Mayor Skadron said we are on par with state fines. Ms. Radlinski said she would support it starting at 250. Councilmembers Frisch and Mullins also support it. Roll call vote. Councilmembers Myrin, yes; Mullins, yes; Frisch, yes; Hauenstein, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #10, SERIES OF 2018 – Revisions to Implement Performance Pricing for Parking Mitch Osur, parking, said the goal is to implement the free 15 for one free 15 minutes a day. The hourly rate will be broken down between 10 to 11 and 3 to 6 at the lower rate and 11 to 3 at the higher rate. September will move to peak season from off season pricing. We have requested a way to do the free 15 via the pay by phone system and will have that in place by November. There are two parking zones now. We will have a new zone for the free 15 minutes. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Frisch moved to adopt Ordinance #10, Series of 2018; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Hauenstein, yes; Frisch, yes; Mullins, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #11, SERIES OF 2018 – Lot 20 Water Service Agreement Tyler Christoff, utilities, stated this will provide commitments to construct water and pay mitigation fees, provide stormwater regulations and support potential annexation. The parcel is currently surrounded by P148 VI.f Regular Meeting Aspen City Council May 14, 2018 7 lots provided with city water service. It is in the best interest to provide city water to this property. It will be a clean reliable water source with the same rights and regulations as its neighbors. Matt Brown, representing the owners, said regarding fees, we are spending quite a bit of money on water infrastructure on 2nd street and the tap for the ice garden. He hopes this is taken into consideration as part of the expense for us. We are hopeful you understand the financial burden these fees are for us. We separately pay a county affordable housing fee and ask that be taken out of the total. We have a proposed fee structure to pay affordable housing and ask that to come off the $321,000 total. We request since a local family is purchasing one lot they request a deferment in paying the fees. Mr. Christoff said we are aware of the 75,000 being paid to the county and of the deferment being requested. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilwoman Mullins asked if the other fees have been negotiated. Mr. Christoff said they are the standard fees. Councilwoman Mullins asked does the affordable housing fees take the county fees into consideration. Mr. Christoff said they have not been negotiated. Councilwoman Mullins asked how did you come up with the negotiated amount. Mr. Christoff said we started with the 2017 city affordable housing rate numbers. They are lower than what is listed here and worked with the applicant to come with a number that could move the project forward. Councilwoman Mullins asked what percent of the 2017 rate. Mr. Christoff replied 75 percent. Councilman Frisch asked if it was in the city it would be $517,000 at 2018. Mr. Christoff said the 2017 rate would be considerably less. Councilman Hauenstein said according to my calculations you are saving $320,000 by not having to pay city affordable housing mitigation, including the 75,000 you are paying for the county. City mitigation would have been $566,000. Mr. Brown replied that is probably correct. There is 200,000 in water line work that benefits not just us. We do have a well we can utilize. We would like to work it out. For us we are spending over half a million dollars for a county property. Councilman Myrin said I think I am where Ward was. I think the problem we have is more with the county than the applicant. To have a difference in housing of this much is inexcusable. This is a lesson for us to work with the county. If it takes us 300,000 in loss to have that conversation now is the time. Mayor Skadron said the discrepancy is between mitigation rates between the city and county. Councilman Frisch said the county rates have been woefully low for a long time and they have done nothing about it. We obviously try to line up codes between the city and county and this is inexecutable. Matt is trying to do the best he can. It is better to be on the city water than on a well. We are all supportive of the deferment. I am not that excited to waive the 75,000. Councilman Myrin said you have my support. Councilman Hauenstein said mine as well. Councilwoman Mullins moved to adopt Ordinance #11, Series of 2018; seconded by Councilman Hauenstein. Roll call vote. Councilmembers Frisch, yes; Myrin, yes; Hauenstein, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. EXECUTIVE SESSION C.R.S. 24-6-102 (a) The purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest; (b) Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions and (e) Determining positions relative to matters that may be subject to negotiations, developing strategy for negotiation; and instructing negotiators. Linda Manning City Clerk P149 VI.f MEMORANDUM TO: Mayor and City Council FROM: Don Pergande, Budget Officer THRU: Don Taylor, Finance Director DATE OF MEMO: May 21, 2018 DATE OF MEETING: May 29, 2018 RE: 2018 Supplemental Budget Ordinance No. 12 (Series 2018) for the APCHA and Component Unit Budgets ____________________________________________________________________________________ Staff is requesting the City Council approval of an amendment to APCHA Fund budget. This amendment of the 2018 budget increases total expenditure appropriations by $86.9K to $4.4 million. This $86.9K increase relates to carry forward items and require this ordinance to formally approve the funding. The exhibit below outlines the supplemental requests impact on the overall appropriation authority. See the Exhibits for the details on the individual requests. Description Amount Location 2018 Adopted Budget $4,327,770 See Exhibit A Operational Carry Forward $21,132 See Exhibit B Capital Carry Forward $65,847 See Exhibit C Total Budget Requests $86,979 See Exhibit A Total Ordinance $4,414,749 See Exhibit A 2018 SUPPLEMENTAL BUDGET ORDINANCE P150 IX.a Exhibit AAPCHA & SEPARATE COMPONENT UNIT 2018 BUDGETSFund Name*Projected Opening Balance Total 2018 Revenue BudgetRevenue Supplemental #12018 Amended Revenue BudgetTotal 2018 Expenditure BudgetExpense Supplemental #12018 Amended Exp Budget2018 Ending Balance $ Change % ChangeHousing Administration (APCHA) Fund $2,136,735 $2,258,830$0 $2,258,830 $3,349,720 $21,132 $3,370,852 $1,024,713 ($1,112,022)(52%)Smuggler Housing Fund$328,710 $78,270$0 $78,270 $67,650$0 $67,650 $339,330 $10,6203%Truscott Phase II Housing Fund$1,109,466 $1,055,440$0 $1,055,440 $910,400 $65,847 $976,247 $1,188,659 $79,1937%Total$3,574,911 $3,392,540$0 $3,392,540 $4,327,770 $86,979 $4,414,749 $2,552,702 ($1,022,209)(29%)**Projected Opening Balance ‐ original projected, plus unspent carry forward funding2018 Component Units Budget Ordinance - 2 P151IX.a 2018 Spring Supplemental Operational Carry Forwards Exhibit B Department / Project Request 620 ‐ Housing Administration Fund Work Stations ‐ A yearly allocation is made for the replacement of workstations. All unspent authority is carried forward into the following fiscal year for the departments to address the replacement as needed. $18,840 PCs ‐ A yearly allocation is made for the replacement of PCs. All unspent authority is carried forward into the following fiscal year for the departments to address the replacement as needed. $2,292 $21,132 OPERATIONAL CARRY FORWARD REQUESTS $21,132 1 of 1 2018 Component Units Budget Ordinance - 3 P152 IX.a 2018 Spring Supplemental Capital Carry‐Forward Requests Exhibit C Department / Project Lifetime Budget 2018 Carry Forward Request 641 ‐ Truscott II Housing Fund 50729_PCNA Capital Needs Assessment $100,000 $65,847 $100,000 $65,847 TOTAL CAPITAL CARRY FORWARD REQUESTS $100,000 $65,847 1 of 1 2018 Component Units Budget Ordinance - 4 P153 IX.a Page 1 of 2 ORDINANCE NO. 12 (Series of 2018) AN ORDINANCE APPROPRIATING AN INCREASE IN THE HOUSING ADMINISTRATION FUND OF $21,132 AND TRUSCOTT PHASE II HOUSING FUND 65,847. WHEREAS, by virtue of Section 9.12 of the Home Rule Charter, the City Council may make supplemental appropriations; and WHEREAS, the City Manager has certified that the City has unappropriated current year revenues and/or unappropriated prior year fund balance available for appropriations in the following funds: HOUSING ADMINISTRATION FUND AND TRUSCOTT PHASE II HOUSING FUND. WHEREAS, the City Council is advised that certain expenditures, revenue and transfers must be approved. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 Upon the City Manager’s certification that there are current year revenues and/or prior year fund balances available for appropriation in the: HOUSING ADMINISTRATION FUND AND TRUSCOTT PHASE II HOUSING FUND: the City Council hereby makes supplemental appropriations as itemized in the Exhibit A. Section 2 If any section, subdivision, sentence, clause, phrase, or portion of this ordinance is for any reason invalid or unconstitutional by any court or competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion thereof. INTRODUCED, READ, APPROVED AND ORDERED PUBLISHED AND/OR POSTED ON FIRST READING on the 14th day of May, 2018. A public hearing on the ordinance shall be held on the 29th day of May, 2018, in the City Council Chambers, City Hall, Aspen, Colorado. ATTEST: ________________________ ________________________ Linda Manning, City Clerk Steven Skadron, Mayor P154 IX.a Page 2 of 2 FINALLY ADOPTED AFTER PUBLIC HEARING on the 29th day of May, 2018. ATTEST: ________________________ ________________________ Linda Manning, City Clerk Steven Skadron, Mayor Approved as to Form: ________________________ James R. True, City Attorney P155 IX.a MEMORANDUM TO: Mayor and City Council FROM: Don Pergande, Budget Officer THRU: Don Taylor, Finance Director DATE OF MEMO: May 21, 2018 DATE OF MEETING: May 29, 2018 RE: 2018 Supplemental Budget Ordinance No. 7 (Series 2018) ____________________________________________________________________________________ Staff is requesting an amendment to the City’s 2018 budget that increases total expenditure appropriations from $158.7 to $197.6 million (Exhibit A). Of this $38.9 million increase, $34.2 million is related to 2017 capital, specific operational projects already approved but not yet completed and technical actions, $3.7 million is related to budgetary savings achieved during 2017, and $1 million is related to new requests. Net of interfund transfers, the requested budget authority increases from $128.3 to $165.2 million. Interfund transfers are required appropriations between City funds, but do not reflect the true cost of operations. The exhibit below outlines the supplemental requests impact on the City’s overall appropriation authority. 1st Reading 2nd Reading Description Amount Amount Change Location Adopted Budget: $158,696,727 $158,696,727 $0 See Exhibit A Total New Requests: $1,005,780 $1,005,780 $0 See Exhibit B Total Central Savings: $584,850 $492,680 ($92,170) See Exhibit C Total Departmental Savings: $3,528,790 $3,233,480 ($295,310) See Exhibit C Total Operational Carry Forward: $966,732 $966,732 $0 See Exhibit D Total Capital Carry Forward: $26,923,918 $26,649,776 ($274,142) See Exhibit E Previously Approved: $3,930,859 $4,016,859 $86,000 See Exhibit F Technical and Transfers: $2,577,723 $2,549,773 ($27,950) See Exhibit G Total Budget Requests: $39,518,652 $38,915,080 ($603,572) See Exhibit A TOTAL ORDINANCE: $198,215,379 $197,611,807 ($603,572) See Exhibit A Less Interfund Transfers $32,419,393 $32,391,443 ($27,950) NET APPROPRIATIONS: $165,795,986 $165,220,364 ($575,622) See Exhibit A 2018 SUPPLEMENTAL BUDGET ORDINANCE 2018 Budget Ordinance No. 7 - Page 1 P156 IX.b Summary of Changes for Second Reading Departmental Saving  Accounting actions necessary to close out fiscal year 2017 were posted since first reading. These postings reduced the amount of central savings by $92,170 and departmental savings by $295,310. Accounting actions were anticipated and the savings recalculation was planned. Capital Carry Forward  In the process of closing out fiscal year 2017, expense and retainage for the APD facility project were reviewed in detail. This resulted in accounting actions that reduced the capital amount available to carry forward from 2017 to 2018 by $274,142. Accounting actions were anticipated and revised carry forward amount planned. Previously Approved  City of Aspen Community Broadband ‐ (May 8, 2018) City Council approved $86,000 for the City of Aspen Community Broadband project. This funds the equipment, installation, services and consulting to create an Aspen MeetMe Center where the City of Aspen and other Community Anchor Institutions can receive resilient broadband service as part of the regional broadband initiative Northwest Colorado Council of Governments (NWCCOG) Project THOR. Technical and Transfers  Central Savings from funds outside the General Fund require a transfer to move authority to the General Fund. Central saving amounts in funds outside the General Fund reduced by $27,950, concurrently lowering the transfer amount by $27,950. 2018 Budget Ordinance No. 7 - Page 2 P157 IX.b EXHIBIT AFund Name**Projected Opening BalanceTotal 2018 Revenue BudgetRevenue Supplemental #12018 Amended Revenue BudgetTotal 2018 Expenditure BudgetExpense Supplemental #12018 Amended Exp Budget2018 Ending BalanceGeneral Governmental Fund 001 ‐ General Fund $18,328,787 $32,115,030 $574,650 $32,689,680 $32,990,620 $3,743,716 $36,734,336 $14,284,131Subtotal General Gov't Funds $18,328,787 $32,115,030 $574,650 $32,689,680 $32,990,620 $3,743,716 $36,734,336 $14,284,131Special Revenue Governmental Funds100 ‐ Parks and Open Space Fund $6,932,612 $12,389,047$12,500 $12,401,547 $12,268,190 $2,375,011 $14,643,201 $4,690,958120 ‐ Wheeler Opera House Fund $31,709,563 $5,765,470$0$5,765,470$7,145,400 $276,647 $7,422,047 $30,052,986130 ‐ Tourism Promotion Fund $94,273 $2,839,190 $0 $2,839,190 $2,837,300 $0 $2,837,300 $96,163131 ‐ Public Education Fund $4,152 $2,700,080 $0 $2,700,080 $2,700,000$0 $2,700,000 $4,232132 ‐ REMP Fund$4,197,578 $883,950$0$883,950 $1,185,000$0 $1,185,000 $3,896,528141 ‐ Transportation Fund$4,924,099 $5,383,280 $128,850$5,512,130 $5,838,320 $1,570,074 $7,408,394 $3,027,835150 ‐ Housing Development Fund $37,522,697 $15,113,438$0 $15,113,438$17,658,150 $4,844,002 $22,502,152 $30,133,983152 ‐ Kids First Fund$5,458,589 $2,155,690$0$2,155,690$2,063,410 $490,237 $2,553,647 $5,060,632160 ‐ Stormwater Fund$2,119,195 $1,365,760$60,000$1,425,760 $1,426,520 $1,174,358 $2,600,878 $944,077Subtotal Special Revenue Funds $92,962,758 $48,595,905 $201,350 $48,797,255 $53,122,290 $10,730,329 $63,852,619 $77,907,394Debt Service Governmental Fund250 ‐ Debt Service Fund$201,890 $5,808,460$0 $5,808,460 $5,804,920$0 $5,804,920 $205,430Subtotal Debt Service Fund$201,890 $5,808,460$0$5,808,460 $5,804,920$0 $5,804,920 $205,430Capital Projects Governmental Funds000 ‐ Asset Management Plan Fund $28,569,049 $29,896,140 $1,721,513 $31,617,653 $23,867,830 $16,698,340 $40,566,170 $19,620,532Subtotal Capital Fund $28,569,049 $29,896,140 $1,721,513 $31,617,653 $23,867,830 $16,698,340 $40,566,170 $19,620,532Enterprise Proprietary Funds421 ‐ Water Utility Fund$5,580,336 $11,023,860$0 $11,023,860$11,779,450 $1,899,548 $13,678,998 $2,925,198431 ‐ Electric Utility Fund$4,864,357 $9,304,830$0$9,304,830$11,442,290 $1,082,128 $12,524,418 $1,644,769451 ‐ Parking Fund$4,948,596 $4,472,250$0$4,472,250$7,362,410 $205,212 $7,567,622 $1,853,224471 ‐ Golf Course Fund$762,276 $2,278,970$0$2,278,970$2,163,160$95,380 $2,258,540 $782,706491 ‐ Truscott I Housing Fund$514,164 $1,257,740$0$1,257,740$1,489,180$42,150 $1,531,330 $240,574492 ‐ Marolt Housing Fund$333,465 $1,228,580$0$1,228,580 $797,030$9,000 $806,030 $756,015Subtotal Enterprise Funds $17,003,194 $29,566,230$0$29,566,230$35,033,520$3,333,418$38,366,938$8,202,486Internal Proprietary Funds501 ‐ Employee Benefits Fund $2,627,808 $5,071,060 $0 $5,071,060 $5,418,750 $0 $5,418,750 $2,280,118505 ‐ Employee Housing Fund $4,364,836 $2,444,090 $350,950 $2,795,040 $792,690 $3,972,688$4,765,378 $2,394,498510 ‐ Information Technology Fund $737,492 $1,674,100 $0 $1,674,100$1,666,107 $436,589 $2,102,696 $308,896Subtotal Internal Service Funds $7,730,136$9,189,250$350,950$9,540,200$7,877,547$4,409,277$12,286,824 $4,983,512ALL FUNDS$164,795,814 $155,171,015 $2,848,463 $158,019,478 $158,696,727 $38,915,080 $197,611,807 $125,203,485Less Interfund Transfers$30,369,930 $2,021,513 $32,391,443 $30,369,930 $2,021,513 $32,391,443NET APPROPRIATIONS$164,795,814 $124,801,085 $826,950 $125,628,035 $128,326,797 $36,893,567 $165,220,364 $125,203,485**Projected Opening Balance ‐ original projected, plus unspent carry forward funding and savingsTOTAL CITY OF ASPEN 2018 APPROPRIATIONS BY FUND2018 Budget Ordinance No. 7 - Page 3 P158IX.b 2018 Spring Supplemental New Requests Exhibit B Request Title Request Justification 001 ‐ General Fund; Council Grassroots Station Management and Production $5,660 Grassroots is seeking an increase in fees for CGTV11 station management and production. The City was not notified in a timely manner so as to include the increase in the 2018 budget planning process. On‐going $5,660 001 ‐ General Fund; Community Development ‐ Planning / Building Uphill Economy BYY Goal ‐ Recreation Plan Development $100,000 Funding request to fully implement Council’s Uphill Economy Top Nine Goal. The 2017 Uphill Economic Development Plan provided prioritized short‐, medium‐, and long‐term action items for the implementation of the plan. Of those, a top priority is the development of a four‐season Uphill Recreation Plan (Rec Plan), promotion of Aspen as an Uphill R+D center with an uphill industry forum, building the uphill events schedule, and supporting regional economic diversification. These additional funds will support economic diversification efforts, as well as development of an Uphill Recreation Plan (Rec Plan). The Rec Plan is a traditional planning process to inventory existing Uphill infrastructure and opportunities, work with stakeholders to assess opportunities and constraints, and the development of policies that support the Uphill Economy. The Rec Plan will include policies and outline objectives to support the City’s efforts to create a new entrepreneurial ecosystem and promote the Uphill Economy at the local, regional, and state level. This planning process requires consultant support for GIS and other data analysis, stakeholder outreach, meeting facilitation, and plan development. It is expected to be a 9‐12 month process. The economic diversification efforts will focus on implementing an uphill symposium and educational event, continuing support of weekly uphill meet‐ups, the 18/19 Uphill Ascent (which is scheduled in December 2018 rather than Spring of 2019), and targeted efforts with companies to locate to the region. One‐time Zoning Enforcement Officer (1.0 FTE)$89,460 For the past year, the Department has been working to improve the services it provides for zoning reviews of building permits, zoning inspections, and code enforcement. Various change management initiatives have been implemented, including introducing time management techniques and training others within the Department to perform basic zoning reviews. While some progress has been made, including a reduction in the time for first round review comments, the zoning staff are still unable to keep pace with the zoning workload. The most significant impact has been felt in the area of review times for building permits, as staff routinely have between 75 and 100 permits in their queue to review. Other review agencies have similar permit loads, but have more permit review staffing levels to handle the volume. With the addition of this position, the number of staff reviewing permits for building, zoning, and engineering would be at parity. On‐going 1 of 52018 Budget Ordinance No. 7 - Page 4 P159 IX.b 2018 Spring Supplemental New Requests Exhibit B Request Title Request Justification Lift 1A Study ‐ Phase 2 $52,000 Net Cost to CoA for this request is $22,000. The remaining $30,000 is covered by the contributions from the LiftOne Lodge, Gorsuch Haus, and Aspen Skiing Company. Background: This is the second phase of the Lift 1A study, which continues to look at the feasibility of bringing skier loading with a replacement lift further downhill towards Dean Street. The study will analyze four scenarios both for physical planning requirements (for example, ensuring a ski run meets minimum dimensional requirements for safety) as well as qualitative parameters stakeholders have provided (for example, the ideal width of a ski run for skier experience). A possible implication of this work would be removal of some or all of the remaining elements of historic Lift 1, Aspen’s first chair lift. The historical significance of the original lift equipment needs to be evaluated in conjunction with the study. In addition to the study, a white paper on the history of Lift 1 will be developed. The total amount for the study, white paper, and public outreach funds is $52,000. One‐time Adjustment to Annual Maintenance/Support Costs for New Permits Management System $25,000 The City is currently developing and testing a Land Use Planning, Permits and Code Enforcement software system. The City is anticipating that the first year annual support costs associated with the system will be higher than normal. As staff become familiar with the system, needs associated with optimizing the system are anticipated to arise. For example, requests for dashboards, reports, and views are anticipated. Additional data migration tasks to fully close‐out now‐open cases in EDEN , and to adjust system integrations, provide other examples of anticipated post‐go‐live needs. This funding recognizes and addresses the additional needs associated with support, post‐go‐live for this system. On‐going Revising Zoning Permit Submittal Guidance and Creating Permitting Guidance for Historic Preservation Properties $20,000 Funding request to acquire contractor support to assist with the simplification and improvement of the permit submission requirements for zoning, which needs to happen given changes to the land use code that have rendered the current "Z‐Sheets" irrelevant, as well as to support ongoing work to develop "HPC sheets," which will provide guidance to applicants for building permits when historic properties are involved. Eden Maintenance Fees $17,120 While the Community Development Department is working with a contractor to develop a new, more effective, electronic permits management system, it is still using Eden to process all building and land use permits and applications. The City needs to continue to fund the annual maintenance and upgrade expenses associated with Eden if we are to maintain our ability to process permits. Even after the new system goes live, we will continue to use Eden to close out many permits that are in process. The challenges associated with trying to migrate data in Eden to the new system for permits that are far along in the process make it impractical to do so. Therefore, we envision needing to maintain Eden at least through 2018 and perhaps longer. One‐time 2 of 52018 Budget Ordinance No. 7 - Page 5 P160 IX.b 2018 Spring Supplemental New Requests Exhibit B Request Title Request Justification 2020 Census Organizing Project $15,000 Community Development is working on developing strategies to ensure that the 2020 U.S. Census is carried out accurately in the City of Aspen and Pitkin County. To ensure accurate census counting, staff proposes to begin research and general outreach in 2018, which will require consultant assistance. The project scope includes GIS and assessor's database analysis of past census data, population dispersion, demographics, and other factors. That data will inform the development of public outreach and awareness campaigns to promote participation in the census, as well as the development of a plan to support the execution of the census in Aspen. These strategies will help to ensure an accurate local count in the census. Given the significant financial consequences of inaccurate census reporting, this project supports the interests of the City of Aspen and neighboring jurisdictions. One‐time Historic Preservation Benefits Outreach $10,000 City Council has recently directed Planning Staff to assess the effectiveness of long‐standing historic preservation benefits. Outreach to stakeholders and the general public is an important aspect of this evaluation. Staff plans the preparation of surveys, website communication, input meetings, etc. Funds are needed for potential consultant assistance, advertising, hosting of meetings, and similar expected expenses. One‐time $328,580 001 ‐ General Fund; Engineering Additional Funds for As Needed GIS Maintenance Services Contract $30,000 As needed GIS Maintenance Services including but not limited to: Update SDE enterprise GIS data, web services within ArcGIS Server (hosted locally) and within ArcGIS Online (hosted in Esri cloud), and all content within ArcGIS Open Data portal, Map Aspen. ‐‐ This is a contract amendment to Project #2017‐128 supplying additional funds to the original contract for As Needed GIS Maintenance Services described above. Currently, the GIS Program consists of one FTE, the GIS Program Manager. This position is responsible for setting policy, procedures and standards, managing all contracts and projects related to the GIS Program as well as outreach to promote the program internally to all departments in the organization and externally to the City of Aspen community. To allow for full commitment to these responsibilities, support is need to accommodate maintenance and database administration as well as special projects. One‐time $30,000 000 ‐ Asset Management Plan Fund; Conservation and Efficiency Additional Authority for Aspen Police Department $67,560 This request is for a portion of the financing costs associated with the COPs for the Aspen Police Department. The initial budget for the APD assumed approximately $100,000 for borrowing costs associated with the project. The actual costs to finance the project was $208,310. The project budget has been adjusted to absorb an additional $40,750 over the initial budgeted amount for borrowing, but the underwriter fees of $67,560 (which were paid from the proceeds of the debt issuance) cannot be absorbed within the existing budget authority. It was hoped that these fees might be absorbed within the current appropriation, but given the tight budget remaining to close out the project, staff is requesting this additional authority. One‐time 3 of 52018 Budget Ordinance No. 7 - Page 6 P161 IX.b 2018 Spring Supplemental New Requests Exhibit B Request Title Request Justification Amendments to Contract for New Permits Management System $20,000 The City is currently developing and testing a Land Use Planning, Permits and Code Enforcement software system. As we have proceeded with this project, additional functionality and enhancements, as well as a desire to test certain components (such as fees) more deeply than originally anticipated, have arisen as needs. This request would provide additional funds, beyond those already budgeted for the project, to incorporate these additional elements into the existing contract. All of these elements are requested prior to go‐live of the system. One‐time $87,560 100 ‐ Parks and Open Space Fund Bicycle Master Plan ‐ 2018 $74,500 This funding request is to finalize the details for the Hopkins Bikeway extension and Buttermilk Bike Facilities. This includes wayfinding, planters (wood and self‐ watering), bike lockers, bike racks, traffic control and some paint charges. $12,500 of this project is funded from the AMP fund cash reserves and the balance from the Parks and Open Space Fund cash reserves. One‐time $74,500 141 ‐ Transportation Fund Additional Security at Rubey Park $15,000 Staff is requesting funds for additional security presence at Rubey Park. This is considered necessary for a variety of reasons including: (1) an escalation in the frequency and seriousness of safety‐related issues on the premises; (2) an escalation in property damage on the property including graffiti and intentional destruction; and (3) an increased need for security staff to ride City of Aspen routes to ensure the safety of passengers and drivers. The City and RFTA share the same vendor for security purposes and share in the cost of security services for the Rubey Park facility ‐ RFTA has also increased its expenditures on security in recent months. On‐going $15,000 150 ‐ Housing Development Fund Settlement of Burlingame Project with HOAs $41,500 Payments to close out final settlement with Burlingame Ranch Affordable Housing Inc. of $16,500 and Burlingame Condominium 1 Association Inc. of $25,500 totaling $41,500. One‐time $41,500 160 ‐ Stormwater Fund King Street Stormwater System $362,120 As noted in the recently reviewed Smuggler Hunter Master Plan, a low spot exists on King Street that causes drainage issues for the neighboring properties. In recent years, particularly in the early winter of 2017, these drainage issues have increased, causing significant flooding concerns for downstream properties. As a temporary measure, the Streets Department installed a French drain system and regularly vacuums runoff and snowmelt from the ponding area. To fully resolve this issue, design and installation of a stormwater system is necessary. To provide economies of scale, the addition of sidewalk will be vetted with the neighborhood and has been included in project costs, but can be removed if necessary. Funding is needed in 2018 to complete the project before the 2018‐2019 winter. $60K will be transferred from the AMP fund cash reserves to fund sidewalk, curb and gutter, and ADA ramps. The remaining $302K will be funded from the Stormwater cash reserves. One‐time $362,120 4 of 52018 Budget Ordinance No. 7 - Page 7 P162 IX.b 2018 Spring Supplemental New Requests Exhibit B Request Title Request Justification 421 ‐ Water Utility Fund Water Efficiency Plans Reviewer (1.0 FTE) ‐ 75% $60,860 (May 22, 2017) Council approved funding for one year during this public hearing on the new Water Efficient Landscape ordinance. A subsequent Council meeting on Feb 13, 2018 outlined on‐going staffing needs for this program, to perform plan reviews for City and County parcels on City Water that trigger compliance to the 2017 adopted Water Efficient Landscape Ordinance. This expense is covered by current Utilities Development Review fees revenue. The other 25% of the FTE will be funded from the Parks and Open Space existing ops budget. On‐going $60,860 TOTAL NEW REQUESTS $1,005,780 5 of 52018 Budget Ordinance No. 7 - Page 8 P163 IX.b 2018 Spring Supplemental Central and Departmental Savings Exhibit C Fund/Department Central Savings "10%" Department Savings "50%" City Manager $353,390 $56,900 Human Resources $0 $5,100 City Clerk $0 $51,190 City Attorney $580 $81,370 Finance $0 $228,790 Planning $9,880 $109,020 Engineering $0 $39,320 Building $2,730 $45,640 Environmental Health $1,370 $86,250 Police $12,020 $301,720 Streets $3,460 $378,790 Special Events $6,110 $147,810 Recreation / ARC / AIG (Based on Subsidy)$0 $43,800 Asset Management $4,490 $28,550 001 ‐ General Fund $394,030 $1,604,250 100 ‐ Parks and Open Space Fund $10,710 $216,020 120 ‐ Wheeler Opera House Fund $2,060 $257,860 141 ‐ Transportation Fund $13,260 $123,910 152 ‐ Kids First Fund $7,170 $127,070 160 ‐ Stormwater Fund $8,830 $91,480 421 ‐ Water Utility Fund $16,290 $122,880 431 ‐ Electric Utility Fund $35,320 $340,820 451 ‐ Parking Fund $0 $129,600 471 ‐ Golf Fund $1,940 $63,940 510 ‐ Information Technology Fund $3,070 $155,650 Total Savings to be appropriated $492,680 $3,233,480 Accumulated ‐ Saving Balance from Previous Years $393,980 $2,610,380 Net Operational Savings ‐ New $98,700 $623,100 The purpose of allowing carryforward savings is to provide an additional incentive for frugality by operating departments. Unlike traditional governments, which have a “use it or lose it” approach to annual operating budgets, Aspen’s policy encourages departments to create savings in their annual operating budgets. Savings in annual operating budgets are distributed as follows: 50% of the savings are carried forward into the appropriate department’s savings account. 10% is allocated to a Central Savings account. 40% is returned to the appropriate fund balance. Carryforward Savings represent 50% of the previous year’s operating budget savings from individual Departments or Funds. Departments and Funds are allocated these amounts as a reward to finding efficiencies in their operations that allow them to meet their operating goals while spending less than their appropriations. Prior year savings that are not expended are maintained in full and appropriated every year unless directed otherwise by the City Manager. These appropriations can be spent on items related to the Department’s or Fund’s mission but may not be used for ongoing expenditures. In addition, if a particular expenditure was denied as part of the budget process, departmental savings may not be used for this purpose without City Manager approval. If the expenditure is to exceed $10,000, the City Manager must authorize the expenditure. Departments and Funds can accrue these savings to a maximum of 15% of their operating budgets. *The above information is from the CoA financial policies, adopted December 11, 2017. 1 of 1 2018 Budget Ordinance No. 7 - Page 9 P164 IX.b 2018 Spring Supplemental Operational Carry Forwards Exhibit D Department / Project Request 001 ‐ General Fund; Planning / Building Department Carry Forward of Files and Plan Sets Scanning Project Authority ‐ Council approved $275,000 in supplemental funding for the Department's 2016 budget to award a contract to digitize all of the Building Department's address files and building plan sets. A contract was awarded, that work is still ongoing, and the remaining funds are needed to complete the project. One‐time $78,680 Carry Forward of 2014 Building Permit Refunds Authority ‐ In the 2017 Fall Supplemental, Council approved $190,930 to reimburse building permit applicants who were overcharged because of formula errors in the permit fee calculations. We are still trying to connect with many applicants; our letters have been returned with no forwarding address or we have not received a response. The Department wants to continue trying to reach these individuals throughout 2018. One‐time $50,000 Carry Forward of Electronic Permitting System Training Authority ‐ Council previously approved these funds in conjunction with the City's new permits management system, which is scheduled to go live in the second quarter of this year. The funds will be used to train both staff and stakeholders in the system's operation. One‐time $44,390 Carry Forward of Historic Preservation Sheets Authority ‐ A property was red tagged for working contrary to its historic preservation approvals and permit. The issue was reviewed by the Historic Preservation Commission (HPC) and a penalty of $30,000 was levied against the property, which was the amount of the bond posted for successful relocation of the historic house. HPC will use this money to fund an RFP to address the problem this applicant caused to try to avoid others repeating it in the future. Council approved these uses of the funds as part of the 2017 Fall Supplemental. One‐time $30,000 Carry Forward of Uphill Economy Authority ‐ Staff requests a carry forward of unspent uphill funds from 2017 be carried forward to support implementation of Council’s Uphill Economy Best Year Yet Goal. The 2017 Uphill Economic Development Plan provided prioritized short‐, medium‐, and long‐term action items for the implementation of the plan. Of those, a top priority is the development of a four‐season Uphill Recreation Plan (Rec Plan), promotion of Aspen as an Uphill R+D center with an uphill industry forum, building the uphill events schedule, and supporting regional economic diversification. These carry forward funds are proposed to be used for the groundwork to create the industry forum and economic diversification opportunities. This basic level of data is needed to determine if the other phases of this portion of implementation should move forward. The funds will be added to the Department's new request for additional funds to support the overall initiative. One‐ time $20,320 Carry Forward of Historic Property Inventorying Authority ‐ Council approved $25,000 the 2016 Budget for the historic property inventory project. Because of staff shortages and other Department priorities, work did not begin until 2017. These funds are required to finish the project in 2018. Any additional funds required will come from department savings. One‐time $2,830 $226,220 001 ‐ General Fund; Environmental Health & Sustainability Department Carry Forward of Radon Testing Program Authority ‐ Staff provided test kits and education to residents in Aspen during the late fall / early winter. Staff became certified in radon measurement as a means to improve the testing of City buildings as well as improve assistance to homeowner testing. The remainder of the grant project to be completed is around providing test kits and radon mitigation assistance to homeowners, continued education for environmental health staff, purchase a continuous radon monitor, educate local real estate professionals about radon as well as a radon mitigation campaign. Grant funding has been received from the State and offset this expense. One‐time $6,320 $6,320 1 of 2 2018 Budget Ordinance No. 7 - Page 10 P165 IX.b 2018 Spring Supplemental Operational Carry Forwards Exhibit D Department / Project Request 141 ‐ Transportation Fund Carry Forward of Aspen Mobility Lab ‐ Phases IA & IB Authority ‐ (Nov 27, 2017) Council approved $125,000 for Phase 1A of the Aspen Mobility Lab project, to hire the consulting, research, design and project management teams and personnel necessary to start planning and scoping the Lab. An additional $345,300 was approved for Phase IB, to plan for the implementation of the Lab. City Council has requested that staff aggressively pursue the full scope of the Lab. The Phase 1B funds are being used for continued fundraising efforts, app design, downtown design, data collection, and mobility research. 30% was funded from the General Fund cash reserves and 70% from Transportation Fund cash reserves. One‐time $200,866 $200,866 SPECIFIC OPERATIONAL CARRY FORWARD REQUESTS $433,406 Aggregate Equipment/Maintenance/Repair Carry Forwards $194,088 Aggregate PC Replacement Carry Forwards $203,836 Aggregate Workstation Replacement Carry Forwards $135,402 OTHER OPERATIONAL CARRY FORWARD REQUESTS $533,326 TOTAL OPERATIONAL CARRY FORWARD REQUESTS $966,732 2 of 2 2018 Budget Ordinance No. 7 - Page 11 P166 IX.b 2018 Spring Supplemental Capital Carry‐Forward Requests Exhibit E Department / Project Lifetime Budget 2018 Carry Forward Request 000 ‐ Asset Management Plan Fund; Finance 50003_ERP System Implementation $1,500,000 $110,345 50503_Multi‐Function Machine ‐ Finance $7,000 $7,000 $1,507,000 $117,345 000 ‐ Asset Management Plan Fund; Planning 50259_Electronic Permitting System $658,250 $544,885 $658,250 $544,885 000 ‐ Asset Management Plan Fund; Engineering 50464_Hallam Street Improvements ‐ Construction $2,137,215 $2,125,808 50467_Bridge Maintenance ‐ 2017 $25,000 $25,000 50865 Spring Street Intersection Improvements $175,000 $12,100 50470_Pedestrian Improvements at Galena and Main $146,000 $11,646 50010_Cemetery_Snowbunny_Mountain View Intersection Imp. $28,132 $9,237 50008_Construction Management Plan Contractor Certification $25,000 $2,000 $2,536,347 $2,185,791 000 ‐ Asset Management Plan Fund; Police 50440_Dispatch Radio System ‐ 800 Megahertz $900,485 $100,355 $900,485 $100,355 000 ‐ Asset Management Plan Fund; Recreation 50053_Electrical ‐ Aspen Ice Garden $294,283 $178,001 50038_Interior ‐ Aspen Recreation Center $65,000 $42,097 50041_Lighting System Upgrade ARC $30,000 $30,000 50051_AIG Heating $56,070 $26,576 50386_LIA Scoreboard Replacement $30,000 $24,377 50044_Brine Pump ‐ LIA $30,000 $14,515 $505,353 $315,566 000 ‐ Asset Management Plan Fund; Asset Management 50064_APD Project $22,571,978 $6,313,199 50258_City Offices ‐ Armory $15,890,110 $1,540,044 50257_City Offices ‐ Galena $22,142,000 $1,136,979 50060_Old Powerhouse Preservation Project $3,551,700 $856,457 50693_City Offices ‐ Rio Grande $500,000 $500,000 50074_Pedestrian Mall ‐ Planning and Design (ONLY)$1,135,530 $363,183 50063_Master Planning ‐ Facility Development $418,212 $60,410 50869 Animal Shelter ‐ Retaining Wall Work $15,000 $6,236 $66,224,530 $10,776,508 100 ‐ Parks and Open Space Fund 50105_Burlingame Phase II Parks $1,136,465 $256,718 50286_Trail Surface Improvements ‐ 2017 $75,000 $75,000 50285_Cozy Point Grading/Drainage Improvements $180,000 $47,222 50289_Grindlay Bridge Repairs $40,000 $40,000 50293_Upper Roaring Fork Trails Plan Implementation $75,000 $35,000 50294_Anderson Park Implementation $105,000 $30,000 50078_Hunter/Smuggler Co‐Op Implementation ‐ Recreation $75,000 $27,196 50309_Castle Creek Music School Trail $875,000 $25,000 1 of 3 2018 Budget Ordinance No. 7 - Page 12 P167 IX.b 2018 Spring Supplemental Capital Carry‐Forward Requests Exhibit E Department / Project Lifetime Budget 2018 Carry Forward Request 50297_Parks Site Mechanical $21,800 $21,800 50077_Paepcke Park Improvements ‐ Planning $20,000 $20,000 50071_Recycling Cans for Commercial Core $129,294 $4,589 50263_Core City Network ‐ Parks ‐ 2016 $2,800 $2,200 $2,735,359 $584,725 120 ‐ Wheeler Opera House Fund 50264_Core City Network ‐ Wheeler ‐ 2016 $2,210 $2,210 $2,210 $2,210 141 ‐ Transportation Fund 50534_Shuttle Replacement ‐ 2017 $416,000 $416,000 $416,000 $416,000 150 ‐ Housing Development Fund 50260_ACI ‐ Repair and Renovation Project $3,257,030 $3,051,030 50121_Burlingame Phase II Construction $47,681,818 $1,134,630 50542_PPP Development Rental Housing $17,000,000 $594,985 50122_Burlingame Delivery Sf Lot Subsidies $2,065,842 $21,857 $70,004,690 $4,802,502 152 ‐ Kids First Fund 50868 Yellow Brick School ‐ Electrical Upgrade and Replacement $350,000 $345,679 $350,000 $345,679 160 ‐ Stormwater Fund 50130_Aspen Mtn Drainage Basin Imp. ‐ Garmisch $500,000 $500,000 50126_SW Master Planning 2016 $225,000 $50,850 50127_Water Quality Improvements 2016 $60,000 $47,876 50129_Aspen Mtn Drainage Basin Improvements $160,506 $41,612 $945,506 $640,338 421 ‐ Water Utility Fund 50135_Reuse Waterline Completion at ACSD $1,742,910 $546,208 50136_Convert Highlands PRV Station to a Pump Station $470,006 $313,049 50161_Roaring Fork Road $1,150,000 $299,054 50153_Water Rate Study & Infrastructure Update $110,000 $100,000 50137_Fire Mitigation Upgrades $248,000 $86,339 50556_Water Site Maintenance $125,000 $77,795 50559_Climate Impact Assessment and Resiliency $200,001 $76,152 50558_Riverside Ditch $50,000 $50,000 50132_New Equipment Storage Building $400,000 $50,000 50145_Kayak Course Improvements ‐ 2016 $50,000 $49,182 50162_Ridge of Red Altitude Valve $130,000 $20,770 50265_Core City Network ‐ Water ‐ 2016 $8,240 $5,683 $4,684,157 $1,674,232 431 ‐ Electric Utility Fund 50184_Micro Hydro Maroon / Castle Creek $600,000 $318,896 50193_Utility Rate/Infrastructure Study $70,000 $70,000 50266_Core City Network ‐ Electric ‐ 2016 $2,580 $2,580 $672,580 $391,476 2 of 3 2018 Budget Ordinance No. 7 - Page 13 P168 IX.b 2018 Spring Supplemental Capital Carry‐Forward Requests Exhibit E Department / Project Lifetime Budget 2018 Carry Forward Request 451 ‐ Parking Fund 50267_Core City Network ‐ Parking ‐ 2016 $5,600 $5,600 $5,600 $5,600 471 ‐ Golf Course Fund 50203_Fleet ‐ Golf ‐ 2016 $135,250 $16,500 50198_Exterior ‐ Golf and Nordic Clubhouse $7,400 $7,400 50271_Core City Network ‐ Golf ‐ 2016 $5,600 $5,600 $148,250 $29,500 505 ‐ Employee Housing Fund 50231_540 Employee Housing ‐ Construction $5,426,830 $3,439,069 50681_Water Place Phase II ‐ Design $550,000 $89,159 $5,976,830 $3,528,228 510 ‐ Information Technology Fund 50237_Galena Plaza Fiber $125,000 $118,790 50686_Network Services ‐ 2017 $72,250 $55,046 50688_Website Development ‐ 2017 $119,950 $15,000 $317,200 $188,836 TOTAL CAPITAL CARRY FORWARD REQUESTS $158,590,347 $26,649,776 3 of 3 2018 Budget Ordinance No. 7 - Page 14 P169 IX.b 2018 Spring Supplemental Previously Approved Requests Exhibit F Department / Description Amount 001 ‐ General Fund; Recreation ‐ Red Brick Center for the Arts Red Brick Center for the Arts ‐ Facility Maintenance Including 1.0 FTE ‐ (Jan 9, 2018) Based on City Council's direction, staff has prepared a 2018 operating budget for the newly assumed responsibilities related to management of the Arts portion of the Red Brick Center, including a new Maintenance Tech position. Based on $344,000 in anticipated rental income, parking fees and utility reimbursements, it is projected that revenues will more than offset this additional expense authority. One‐time $270,280 Red Brick Center for the Arts ‐ Gallery and Educational Programming Including 1.5 FTE ‐ (Jan 9, 2018) Based on City Council's direction, staff has prepared a full‐year 2018 operating budget for: full‐time Director and part‐time Administrative Assistant, plus the educational programming and gallery exhibition needs of the Red Brick Center for the Arts. It is anticipated that the $30,000 grant from the Wheeler Opera House Fund, plus $65,000 in programming fees and commissions from gallery sales will partially offset this requested authority. On‐going $237,770 $508,050 000 ‐ Asset Management Plan Fund Castle Creek Bridge and Hallam Improvements ‐ (Jan 22, 2018) Council approved $4,651,306, for the Castle Creek Bridge and Hallam Improvements. This amount includes approved authority through 2017 of $3,662,215, plus $989,101 in new authority at the Jan 22, 2018 meeting. The $2,079,101 shown is a combination of approved project funding being carried forward from 2017 to 2018 from the Parks Fund into the AMP Fund, plus the new authority. $2,079,100 Additional Bus Service ‐ Castle Creek Bridge / Hallam Street Construction Period ‐ (Feb 13, 2018) Additional Bus service as mitigation during the Castle Creek Bridge/Hallam St project this spring during the detour. The service will run from the Brush Creek Park N Ride to Rubey Park from May 1 to June 8. The service will run on 30 minute or quicker headways during the morning and afternoon peak periods to assist with the commute traffic congestion. This additional bus service should help commuters to get out of their vehicles and on the bus to avoid the delays during construction. This funding will be added to the Castle Creek Bridge and Hallam Improvements project budget. One‐time $52,000 Security at Aspen Police Department Building ‐ (Jan 8, 2018) Council approved moving forward with the design team recommendation to increase the level of protection at the new APD site by providing bollards, large diameter trees and a concrete bench. While typical bollards could provide this level of protection, both the design team and staff feel the architectural solutions provide a visually appealing presentation providing an increased level of safety. $222,130 Ford F550 Sand / Plow Truck ‐ (Mar 26, 2018) Zero net cost to CoA, 100% paid for by the South Aspen Street developer. Council approved moving forward with purchase of the Ford F550 sand/plow truck need to take care of the steep narrower South Aspen Street after the redevelopment was completed. One‐time $67,400 EV charging stations in the Rio Grande Parking Garage ‐ (April 3, 2018) Council approved installation of two dual cord Level 2 charging stations in the Parking Garage. Each charging station can charge two electric vehicles at once and takes between 4 to 6 hours to deliver a full charge, matching a typical dwell time in the Rio Grande Garage. Demand and use for EV charging stations in Aspen is increasing dramatically year on year and these stations will provide needed additional capacity to charge in town. Staff received $12,520 in grant funds from the State of Colorado Energy Office (CEO) to offset the costs of this project. These funds will be delivered after completion of the project. One‐time $36,100 $2,456,730 1 of 3 2018 Budget Ordinance No. 7 - Page 15 P170 IX.b 2018 Spring Supplemental Previously Approved Requests Exhibit F Department / Description Amount 100 ‐ Parks and Open Space Fund Rio Grande Park and John Denver Sanctuary Interpretive and Wayfinding Plan ‐ (Dec 18, 2017) The professional service agreement with Conservation by Design, Inc. is for the development of an interpretive and wayfinding plan for the Rio Grande Park and the John Denver Sanctuary at a cost of $60,450. The funding for this project is being provided through a generous grant from the John Denver Aspen Glow Foundation through the Roaring Fork Conservancy (RFC) in the amount of $94,579. One‐time $94,579 $94,579 141 ‐ Transportation Fund Mobility Lab Planning Budget for 2018 ‐ (May 7, 2018) The Mobility Lab is a Council Top Ten Goal, originally scheduled for the summer of 2018, but now scheduled for summer of 2019 in order to seek funding in the form of monetary and in‐kind contributions. The Lab is meant to provide a living lab in three areas: (1) increase the use of the intercept lot to reduce the number of vehicles daily coming across the Castle Creek Bridge, (2) increase mobility options that can compete with the private vehicle for trips in and around the city, thereby reducing vehicles needed to be parked in the core and adjacent areas and (3) increase the human experience in the downtown core by reducing the impact of vehicle traffic and parked cars. The approved budget in 2018 will allow continued effort for project management, fundraising and in‐kind donations to reduce the city outlays, planning of the details of the Lab effort and public outreach in the summer and fall of 2018. A technical request is included in this packet to reflect a 30% share of this effort being bore by the General Fund. One‐time $429,500 Additional Bus Service ‐ Summer Service Extension Through Fall 2018 ‐ (Feb 13, 2018) Extension of the summer bus service schedule through the Fall was recommended in the Short Range Transit Plan (SRTP) by consultant Fehr & Peers and by staff. Instead of reducing the hours of operation for the fall off season the summer hours of operation will continue thru September 30. The Cross Town shuttle will also continue operation thru September 30. The service expansion could add up to 7,000 additional trips and make it easier for employees and visitors to get around Aspen. One‐time $90,000 Car‐to‐Go Expansion ‐ (Feb 13, 2018) Council provided direction at a recent work session to move forward with an expansion of the program to include the purchase of one electric vehicle, a charger, the installation of the charger and other items needed to get the car into service. One‐time $60,000 Transportation Options Program (TOP) ‐ Employer Outreach Expansion ‐ (Feb 13, 2018) Per Council's review of Short Range Transit Plan recommendations, this funding is requested to expand the TOP program to target smaller businesses, providing services such as trip planning, grants and emergency ride home. One‐ time $25,000 Two Charging Stations for On Demand Vehicles ‐ (April 9, 2018) Council approved resolution #47 series 2018, approving the contract for the Downtowner service beginning May 1, 2018. Included in the approved contract was a capital project for additional charging station infrastructure for two charging stations in the garage for two additional vehicles for the Downtowner fleet. The estimated cost for the charging station infrastructure and stations is $22,000. $22,000 $626,500 2 of 3 2018 Budget Ordinance No. 7 - Page 16 P171 IX.b 2018 Spring Supplemental Previously Approved Requests Exhibit F Department / Description Amount 431 ‐ Electric Fund Replacement of Electric Department Crane truck ‐ The Electric Department's current crane truck was slated for replacement in 2017, but was more than the budgeted $145,000. Staff allowed the 2017 authority to expire and is requesting the full need for the replacement in 2018, less a $30,000 trade‐in allowance. Staff is proposing the purchase of a new compact crane truck to access difficult locations, minimize public disturbance, allow staff to complete routine operations in a safe and effective manner while allowing the equipment to be stored indoors. Despite existing indoor garage space and due to the size of the current crane truck outdoor storage is required. This contributes to additional wear and tear on the equipment and a slower response time during poor weather. Staff believe it is in the best interest to utilize a knuckle boom crane to meet the Department's needs for transformer and switch gear installation, maintenance, and emergency response. One‐time $245,000 $245,000 510 ‐ Information Technology Fund City of Aspen Community Broadband ‐ (May 8, 2018) City Council approved $86,000 for the City of Aspen Community Broadband project. This funds the equipment, installation, services and consulting to create an Aspen MeetMe Center where the City of Aspen and other Community Anchor Institutions can receive resilient broadband service as part of the regional broadband initiative Northwest Colorado Council of Governments (NWCCOG) Project THOR. $86,000 $86,000 Total Previously Approved Requests $4,016,859 3 of 3 2018 Budget Ordinance No. 7 - Page 17 P172 IX.b 2018 Spring Supplemental Technical Adjustments Exhibit G Department / Description Amount Accounting Actions Accounting Action ‐ Sale of City‐owned Employee Housing Units: The City has inventory of both rental and ownership units a recruitment and retention tools to house staff that are in critical service areas or difficult to hire positions. City‐owned housing units periodically turnover, and in the case of ownership units, the City must record the purchase and resale of each unit as it occurs. Requested authority is to reflect the sale of such units. Proceeds from the sale will partially offset the expense ‐ the difference is attributable to the varying category between owners and how that affects the purchase / resale amounts. One‐time 505 ‐ Employee Housing Fund $444,460 Net zero impact to the overall CoA's Budget ‐Permitting Software ‐ Vertiba Contract for Implementation and On‐site Support: Transferring unspent budget authority to the Asset Management Fund to fund contracted work with Vertiba for implementation and on‐site support work. This work was to be performed by CoA staff that departed the City in 2017. One‐time 000 ‐ Asset Management Fund $41,100 Oversight Correction: Property Tax Collection Fee ‐ The 2% property tax collection fee paid to the County from the General Fund was not included in the 2018 budget development cycle. This corrects this oversight. On‐going 001 ‐ General Fund $35,700 Net zero impact to the overall CoA's Budget ‐ Police Public Outreach ‐ $7,000 of donations was received to support police department efforts with local kids, such as Picnic in the Park and Bike Rodeo events. This is the accounting action to appropriate this funding. One‐time 001 ‐ General Fund $7,000 Accounting Actions ‐ Subtotal $528,260 Transfers Out and Double Counted Funding "Transfers" 2018 Project Funding Transfers Transfer to Fund ‐ Castle Creek Bridge and Hallam Improvements ‐ Transfers of cash to fund the Castle Creek Bridge and Hallam Improvements in full. These transfers are to fund a combination of project funding being carried forward from 2017 to 2018 from the Parks Fund into the AMP Fund, plus the new authority of $989,101. The transfers are as follows: Parks and Open Space Fund of $1,386,064, Transportation Fund of $108,541, Stormwater Fund of $69,750 and Electric Fund of $64,058. One‐time 100 ‐ Parks and Open Space Fund ‐ based on increased scope work $1,386,064 141 ‐ Transportation Fund ‐ based on use of the TDM impact fees $108,541 160 ‐ Stormwater Fund to AMP Fund ‐ revised allocation method $69,750 431 ‐ Electric Fund ‐ based on increased scope of work $64,058 Transfer ‐ Subtotal $1,628,413 Transfer to Fund ‐ Mobility Lab Planning Budget for 2018 (30% Share) ‐ Transfer of General Funds cash reserves to fund 30% of the Mobility Lab's new funding request of $429,500. One‐Time 001 ‐ General Fund $128,850 1 of 2 2018 Budget Ordinance No. 7 - Page 18 P173 IX.b 2018 Spring Supplemental Technical Adjustments Exhibit G Department / Description Amount Transfer to Fund Sidewalk, Curb and Gutter, and ADA ramps ‐ King Street Stormwater System Project ‐ The sidewalk, curb and gutter, and ADA ramps in the King Street Stormwater System Project will be funded by a transfer of $60,000 from the Asset Management Fund cash reserves. One‐time 000 ‐ Asset Management Fund $60,000 Transfer to Fund Additional Bus Service for Castle Creek Bridge and Hallam Improvements Project ‐ Transfers of cash reserves from the Transportation Fund to the Asset Management Fund to fund additional bus service during the Castle Creek Bridge and Hallam Improvements Project. One‐time 141 ‐ Transportation Fund $52,000 Transfer to Fund the Permitting Software ‐ Vertiba Contract for Implementation and On‐site Support: This is accounting action needed to transfer the funds to the Asset Management Fund. One‐time 001 ‐ General Fund $41,100 Transfer to Fund Hopkins Bike Extension Living Lab (AMP Share Transfer) ‐ This funding request is to finalize the details for the Hopkins Bikeway extension and Buttermilk Bike Facilities. This includes wayfinding, planters (wood and self‐watering), bike lockers, bike racks, traffic control and some paint charges. $12,500 of this project is funded from the AMP fund cash reserves and the balance from the Parks and Open Space Fund cash reserves. One‐time 000 ‐ Asset Management Fund $12,500 2018 Project Funding Transfers ‐ Subtotal $1,922,863 Transfer to Central Savings ‐ Based on City of Aspen Financial Policies 100 ‐ Parks and Open Space Fund $10,710 120 ‐ Wheeler Opera House Fund $2,060 141 ‐ Transportation Fund $13,260 152 ‐ Kids First Fund $7,170 160 ‐ Stormwater Fund $8,830 421 ‐ Water Utility Fund $16,290 431 ‐ Electric Utility Fund $35,320 451 ‐ Parking Fund $0 471 ‐ Golf Fund $1,940 510 ‐ Information Technology Fund $3,070 Transfer to Central Savings ‐ Subtotal $98,650 Transfers Out and Double Counted Funding (Transfers) ‐ required appropriations not true costs $2,021,513 Total Technical Adjustment $2,549,773 2 of 2 2018 Budget Ordinance No. 7 - Page 19 P174 IX.b ORDINANCE No. 7 (Series of 2018) AN ORDINANCE APPROPRIATING AN INCREASE IN THE ASSET MANAGEMENT PLAN FUND EXPENDITURES OF $16,698,340 AN INCREASE IN THE GENERAL FUND OF $3,743,716, AN INCREASE IN THE PARKS AND OPEN SPACE FUND OF $2,375,011, AN INCREASE IN THE WHEELER OPERA HOUSE FUND OF $276,647, AN INCREASE IN THE TRANSPORTATION FUND OF $1,570,074, AN INCREASE IN THE HOUSING DEVELOPMENT FUND OF $4,844,002, AN INCREASE IN THE KIDS FIRST FUND OF $490,237, AN INCREASE IN THE STORMWATER FUND OF $1,174,358, AN INCREASE IN THE WATER UTILITY FUND OF $1,899,548, AN INCREASE IN THE ELECTRIC UTILITY FUND OF $1,082,128, AN INCREASE IN THE PARKING FUND OF $205,212, AN INCREASE IN THE GOLF COURSE FUND OF $95,380, AN INCREASE IN THE TRUSCOTT HOUSING FUND OF $42,150, AN INCREASE IN THE MAROLT HOUSING FUND OF $9,000, AN INCREASE IN THE EMPLOYEE HOUSING FUND $3,972,688, AN INCREASE IN THE INFORMATION TECHNOLOGY FUND OF $436,589. WHEREAS, by virtue of Section 9.12 of the Home Rule Charter, the City Council may make supplemental appropriations; and WHEREAS, the City Manager has certified that the City has unappropriated current year revenues and/or unappropriated prior year fund balance available for appropriations in the following funds: ASSET MANAGEMENT PLAN FUND, GENERAL FUND, PARKS AND OPEN SPACE FUND, WHEELER OPERA HOUSE FUND, TRANSPORTATION FUND, HOUSING DEVELOPMENT FUND, KIDS FIRST FUND, STORMWATER FUND, WATER UTILITY FUND, ELECTRIC UTILITY FUND, PARKING FUND, GOLF COURSE FUND, TRUSCOTT HOUSING FUND, MAROLT HOUSING FUND, EMPLOYEE HOUSING FUND, INFORMATION TECHNOLOGY FUND. WHEREAS, the City Council is advised that certain expenditures, revenue and transfers must be approved. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 Upon the City Manager’s certification that there are current year revenues and/or prior year fund balances available for appropriation in the: ASSET MANAGEMENT PLAN FUND, GENERAL FUND, PARKS AND OPEN SPACE FUND, WHEELER OPERA HOUSE FUND, TRANSPORTATION FUND, HOUSING DEVELOPMENT FUND, KIDS FIRST FUND, STORMWATER FUND, WATER UTILITY FUND, ELECTRIC UTILITY FUND, PARKING FUND, GOLF COURSE FUND, TRUSCOTT HOUSING FUND, MAROLT HOUSING FUND, EMPLOYEE HOUSING FUND, INFORMATION TECHNOLOGY FUND: the City Council hereby makes supplemental appropriations as itemized in the Exhibit A. Section 2 If any section, subdivision, sentence, clause, phrase, or portion of this ordinance is for any reason invalid or unconstitutional by any court or competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion thereof. P175 IX.b INTRODUCED, READ, APPROVED AND ORDERED PUBLISHED AND/OR POSTED ON FIRST READING on the 14th day of May, 2018. A public hearing on the ordinance shall be held on the 29th day of May, 2018, in the City Council Chambers, City Hall, Aspen, Colorado. ATTEST: ________________________ ________________________ Linda Manning, City Clerk Steven Skadron, Mayor FINALLY ADOPTED AFTER PUBLIC HEARING on the 29th day of May, 2018. ATTEST: ________________________ ________________________ Linda Manning, City Clerk Steven Skadron, Mayor Approved as to Form: ________________________ James R. True, City Attorney P176 IX.b MEMORANDUM REQUEST OF COUNCIL: Community Response Officers request the approval of Ordinance #14, Series of 2018, which would add a new section to Title 6 of the City of Aspen Municipal Code to prohibit harassment of wildlife, consistent with Colorado Revised Statute Section 33-3- 128. PREVIOUS COUNCIL ACTION: On May 14, 2018 City Council recommended changes in the fine structure. A citation for violation of Harassment of Wildlife would now have an escalating fine structure of a $250 fine for a first offense and a $500 fine for a second offense. A third offense will require a $999 fine and mandatory court appearance in Municipal Court. Council also requested that we develop our public outreach efforts, which include: -“Bears are Awake” public service announcements, which explain that it is illegal to harass wildlife in the State of Colorado. -City of Aspen Bear Brochure. This information is going to be distributed to Hotels and Property Management companies by the CROs and the Parking Department, which also explains that is illegal to harass wildlife. -Bear Magnets. We have also created a bear magnet that will be distributed to Property Management companies. This magnet lists simple steps for protecting bears in a refrigerator magnet format. This also has information about harassment of wildlife. -Bear Biz Cards. This brochure is going to be the size of a business card and will be the information we pass out on scene when we have a large congregation of spectators. This encourages people to be part of the solution and discourage people from becoming a part of the problem, and explains that harassment of wildlife is illegal. -Aspen Bears Biking Map is going to be included in the Maroon Bells Map. This also discusses harassment of wildlife. TO: Mayor and City Council FROM: Community Response Officers Ginna Gordon and Audrey Radlinski, Aspen Police Department THRU: Richard Pryor, Chief of Police; Andrea Bryan, Assistant City Attorney DATE OF MEMO: May 22, 2018 MEETING DATE: May 28, 2018 RE: Ordinance #14, Series of 2018 - First reading of new City ordinance prohibiting harassment of wildlife. P177 IX.c -We have scheduled advertisements to run in the local newspapers regarding the Bear Aware Campaign, and are developing additional advertisements specifically pertaining to Harassment of Wildlife ordinance. -We also are developing signs to use on perimeters of “bear incidents” that offer warnings about the Harassing of Wildlife Ordinance. DISCUSSION: The Community Response Officers at the Aspen Police Department are tasked with addressing the growing safety concerns involving human and wildlife interactions. The Community Response Department is responsible for protecting the public from wildlife while simultaneously protecting wildlife from the public. Aspen is the ideal environment for hosting a large population of black bears. According to research conducted by Colorado Parks and Wildlife, as humans continue to permeate bear habitats and changing weather affects natural food sources, human-bear interactions will continue to increase as bears integrate into communities. Aspen’s influx of population in the summer results in the increase of bear attractants in the core area. The tourist population lacks the education and information in appropriate bear safety practices despite public education efforts already in place. The Police Department stresses education as our primary means of compliance through the Bear Aware campaign, however, enforcement is necessary when education is not sufficient. In recent years, the City of Aspen has struggled to enforce wildlife protection laws due to the absence of an ordinance specifically applicable to human-wildlife interactions. As a result, the health of our wildlife is compromised and public safety is also at risk. It is the goal of the Aspen Police Department to protect our citizens and wildlife population by reducing these types of incidents through education and enforcement. The following is a 2017 Colorado Parks and map of bear calls from Pitkin Bear Report (includes bear calls in Pitkin County and City of Aspen) and direct bear calls to CPW. P178 IX.c In 2017, there were 913 calls for service regarding bears within the City of Aspen. The average time spent at each call was fifteen minutes. This means that 228 hours on average were spent by officers managing bear issues within the City. It is our goal through enforcement to reduce these hours by gaining compliance. In 2015, Colorado Parks and Wildlife researched ordinances pertaining to securing garbage in Aspen. They concluded that public compliance increased by 30% when the ordinances were enforced. The same theory can be applied to Harassment of Wildlife, in that human-bear interaction will decrease, and compliance will increase with the enforcement of a Harassing of Wildlife Ordinance. Last summer, a mother bear and her two cubs inhabited a tree in a high-traffic area of the Hyman Avenue Mall for a number of days. Officers spent countless hours securing the perimeter and handling crowd control to no avail, as the bears displayed physical signs of distress. The bears came down one day after spending nine hours in the tree and were chased by people eager to get a photo causing the distressed mother to be separated from her cubs. This alarming situation is one example of the public having a false sense of security when in close proximity to wildlife in public spaces. Public curiosity often prevails over following the verbal instructions of Peace Officers attempting to mitigate hazards to public safety in these instances. Because of continual P179 IX.c public harassment in this case, the mother bear and her two cubs were tranquilized during a multi-agency effort and relocated to Uncompahgre National Forest. The Community Response Officers believe it would have been effective to have a municipal ordinance in place prohibiting some of the conduct exhibited by passersby toward the bears. There is currently a state statute in place, C.R.S. 33-6-128(1), that prohibits harassing wildlife. That section reads, in part, as follows: Unless permitted by the division, it is unlawful for any person to willfully damage or destroy any wildlife den or nest or their eggs or to harass any wildlife. Any person who violates this subsection (1) is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of one hundred dollars and an assessment of ten license suspension points. For the purposes of this subsection (1), nothing shall prohibit the removal of wildlife dens or nests when necessary to prevent damage to property or livestock or while trapping. The new City ordinance would largely track the language of the state statute, but would include an escalating fine structure, with a third offense requiring an appearance in municipal court. It is important to note that this new ordinance is not limited to harassing bears only, as human harassment of other wildlife, including foxes and moose, is a behavior that must also be addressed. FINANCIAL/BUDGET IMPACTS: The fine structure for violation of this ordinance would be $250 for the first offense, $500 for a second offense, and a $999 and mandatory municipal court appearance for a third offense. There will be some costs associated with advertising and public awareness of new code. ENVIRONMENTAL IMPACTS: The British Broadcasting Corporation recently filmed a documentary praising Aspen for its efforts in environmental stewardship and coexistence with wildlife. The Community Response team desires to protect these resources that make Aspen so unique. Through implementing this ordinance, we can reduce the instances of wildlife relocation and euthanasian that has resulted from human negligence. Below are statistics from Colorado Parks and Wildlife of bear relocations and euthanasia in Pitkin County spanning the past three years. 2015 - 1 Relocated, 5 Euthanized 2016 - 1 Relocated, 9 euthanized 2017 - 3 Relocated, 16 Euthanized While Colorado Parks and Wildlife tries to safely relocate animals, it is not a viable solution for several reasons. First, relocation is usually ineffective. It does not address the larger problem at hand, which is eliminating and securing attractants that provide positive reinforcement behaviors for remaining wildlife. Secondly, the effectiveness of the relocation process is questionable because the survival rate is low, especially for animals with young. Many animals do not survive relocation as they are forced to fight for recourses among the inhabitants that already exist in that area. It is also challenging to find areas willing to take our “problem animals.” P180 IX.c RECOMMENDED ACTION: Staff recommends City Council adopt Ordinance #14, Series of 2018 on First Reading. A copy of the proposed ordinance is attached. ALTERNATIVES: Currently, Community Response Officers secure a perimeter around bears in high density areas. It can be challenging to keep the public at a safe distance while managing the evolving situation. Through the use of the Bear Aware campaign, collaring ‘problem’ trees, solid waste ordinance enforcement, and spraying blossoms off of crab apple trees, City Departments are collaborating to take proactive steps in reducing human-bear interactions. Patrol Officers are able to issue the CRS citation, however the $100 fine and 10 points against a Colorado Hunting and Fishing license are inappropriate repercussions for most Aspen citizens and tourists. Community Response Officers are typically responsible for handling these situations and there are no alternatives in place to for CROs to enforce Harassment of Wildlife within the City of Aspen. PROPOSED MOTION: CITY MANAGER COMMENTS: ATTACHMENTS: Ordinance _14___, 2018 P181 IX.c ORDINANCE NO. 14 (Series 2018) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING TITLE 6 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN – ANIMALS AND FOWL - TO ADD A NEW SECTION 06.04.110 ENTITLED: HARASSING WILDLIFE PROHIBITED. WHEREAS, Aspen is home to a large population of black bears and other wildlife, and; WHEREAS, research indicates that as humans continue to permeate bear habitats and changing weather affects natural food sources, human-bear interactions will continue to increase as bears become acclimated to urban communities; WHEREAS, Aspen’s influx of human population in the summer results in the increase of bear and other wildlife attractants in the Aspen core area, increasing the risk of human- wildlife interaction, which can be dangerous for both humans and the wildlife, and; WHEREAS, the Aspen Police Department receives numerous wildlife calls for service every year, and particularly in the summer, regarding human interactions with bears and other wildlife including foxes and moose; and, WHEREAS, numerous bears and other wildlife are either relocated or euthanized every year in Pitkin County as a result of human negligence that can be prevented, WHEREAS, the City of Aspen Police Department and City of Aspen Community Response Officers (“CROs”) are responsible for protecting the public from wildlife while simultaneously protecting wildlife from the public, and; WHEREAS, despite public education efforts, members of the public and visitors to the Aspen area do not always interact appropriately with wildlife, and have been observed to harass the wildlife and ignore law enforcement barriers and instructions, putting both the wildlife and humans at risk of injury or even death, and; WHEREAS, the City of Aspen has struggled to enforce wildlife protection laws due to the absence of a municipal ordinance specifically applicable to human-wildlife interactions. As a result, the health of Aspen’s wildlife is compromised and public safety is also at risk, and; WHEREAS, although there is a Colorado state statutory provision that addresses harassing wildlife, its penalties are insufficient to prevent the harmful behavior, especially as it concerns visitors from outside the Aspen area, and; WHEREAS, the adoption of a section to the City of Aspen Municipal Code that prohibits harassing wildlife that would allow for a graduated fine schedule and mandatory court appearance for a third offense is necessary for law enforcement to ensure public safety and safety of Aspen’s wildlife; and, P182 IX.c 2 WHEREAS, the City Council finds that this ordinance furthers and is necessary for the promotion of the public health, safety, and welfare. NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. That Title 6 – Animals and Fowl - of the Municipal Code of the City of Aspen, Colorado, is hereby amended by the addition of a new section 6.08.110 – Harassing Wildlife Prohibited, which section shall read as follows: 6.08.110 Harassing Wildlife Prohibited. (1) It shall be unlawful for any person to willfully harass any wildlife or disregard any law enforcement commands, signs, or barriers designed to protect wildlife. Harassing wildlife includes, but is not limited to, encroaching upon, cornering, crowding, taunting, chasing, and any other willful behavior directed at the wildlife that a reasonable person would believe would cause stress to the wild animal or cause the wild animal to inflict injury in retaliation to the human behavior. (2) It shall also be unlawful for any person to knowingly or negligently allow or direct a dog which he owns or which is under his control to harass wildlife, whether or not the wildlife is actually injured by such dog. (3) For purposes of this section, “wildlife” means any non-domestic mammal indigenous to the Roaring Fork Valley including but not limited to bear, deer, elk, raccoon, coyote, beaver, skunk, badger, bobcat, mountain lion, porcupine and fox. Any person who violates this section shall be punished by a fine of $250 for a first offense, $500 for a second offense, and a $999 fine and mandatory summons to municipal court for a third offense. Section 2: Litigation This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 3: Severability If any section, subsection, sentence, clause, phrase, or portion of this 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. 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. P183 IX.c 3 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 14th day of May, 2018. _______________________ Steven Skadron, Mayor ATTEST: _____________________________ Linda Manning, City Clerk FINALLY, adopted, passed and approved this 29th day of May, 2018. _______________________ Steven Skadron, Mayor ATTEST: _______________________ Linda Manning, City Clerk APPROVED AS TO FORM: __________________________ James R. True, City Attorney P184 IX.c