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HomeMy WebLinkAboutagenda.council.regular.20100913CITY COUNCIL AGENDA September 13, 2010 5:00 P.M. 1) Call to Order 11) Roll Call III) Scheduled Public Appearances Jennings Randolph Award APWA Trish Aragon IV) Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V) Special Orders of the Day a) Councilmembers' and Mayor's Comments b) Agenda Deletions and Additions c) City Manager's Comments d) Board Reports VI) Consent Calendar (These matters may be adopted together by a single motion) a) Resolution # 74, 2010 — Contract — Ice Garden compressor b) Resolution # 75, 2010— Patrol Room Remodel —Sandy's Office Supply c) Resolution # 76, 2010 - Patrol Room Remodel —Tiffin Metal Products d) Aspen Skiing Company Winter Concert Conditions e) Minutes —August 23, 24, 2010 VII)Public Hearings a) Ordinance #15, 2010 —Castle Creek Energy Center b) Extension /Reinstatement of Vested Rights — Dancing Bear (continue public hearing 9/27) c) Ordinance #48 Negotiation Given Institute VIII)Adjournment Next Regular Meeting September 27, 2010 COUNCIL'S ADOPTED GUIDELINES • Stick to top priorities • Foster a safe, supportive, innovative environment that encourages creativity and acceptable risk - taking • Create structure and allow adequate time & resources for citizen processes; demonstrate and invite active listening COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. MEMORANDUM TO: Mayor and Council FROM: Scott Miller, Capital Asset Director DATE OF MEMO: 8/27/10 RE: Awarding Jennings Randolph Fellowship to Tricia Aragon Trish Aragon is a recipient of the Jennings Randolf Fellowship. As part of her fellowship she presented to the APWA (American Public Works Association) Congress in Boston. Her presentation was entitled "Asset Management in New Zealand ". The Jennings Randolph Fellowship is offered each year for APWA (American Public Works Association) members to attend the international conference at one of APWA's international partnerships, to present a paper, study a public works issue of interest to both the partner and APWA and write an APWA Reporter article about the experience. The purpose of the Jennings Randolf Fellowship is to provide an opportunity for APWA members to broaden their knowledge and exchange experiences and information on trends and advances in the industry, through direct contact with their international partners. Trish's fellowship took place in New Zealand where she had a study tour of 5 municipalities to learn how they manage their assets. Based on the tour experience she presented her findings at the APWA Congress in Boston. Her presentation included New Zealand's application of engineering, financial, economic management of their infrastructure assets with the objective of provided the required levels of service in the most cost effective manner. So if you find yourself in New Zealand and are impressed by their quality of infrastructure, it's not by accident. She believes it's through their diligent use of asset management. She feels any municipality (including Aspen) can benefit from New Zealand's experience in developing a comprehensive asset management program. Certi, flcate Awarded to Tricia Aragon Jennings Randolph Fellow New Zealand al w 7/19 to $S BEVERLY HILLS COURIER SEPTEMBER r, 2010 F1 A View From The New York Times Maureen Dowd We went sledding there and played hide and seek, rolled Easi- er eggs and stole our first kisses. We could be dragged away only when we heard our mom's vibrant whistle, signaling dinner. When we were little, fart Stevens was just a cool playground, with dry moats and tall mounds and a couple of cannons, located across the street from our Catholic grade school and down the block from our house. My mom, an ardent student of the Civil War, explained that the fall was an important pan of history —the scene of a battle In which a sitting American president came under enemy fire and the only time the nation's capital was attacked by the Confederate Army. My lumber Kevin nervously stood on the ramparts to sneak his first cigarette on the very spot where Abe Lincoln coolly stood and faced Confederate sniper fire in 1864 —until he was ordered down by his alarmed general. Kevin made a video this summer celebrating Fart Stevens, a mournful response to the news that the Civil War Preservation Trust had put the fon on its annual list of endangered battlefields. The trust fears that a five staff building planned by the Emory United Methodist Church next door will block the line of sight from the fort and make it harder for visitors to visualize history. On the eve of the 150th anniversary of the Civil War, the trust also warns the Wilderness battlefield west of Fredericksburg, Vir- ginia, the site of the first bloody confrontation between the com- manders Ulysses S. Grant and Robert E. Lee, could be violated by a huge development featuring a Walmart at its gateway. Gettysburg made the list because of a plan to build a casino halt a mile from the park, along the Journey Through Hallowed Ground National Scenic Byway. I can hear the Gen. Robert E. Lee situ machines Iingling may Fan Stevens — located In a working - class, mostly black neigh- borhood near President Lincoln's summer cottage at the Soldiers' Nome —had been neglected and forgotten in recent decades. Some stimulus money came its way, and the National Park Service cleaned it up in hopes of makln t more visitor - friendly gI But the day went touring the fort with representatives of the trust and the park service, a D.C. policeman got out of his car and came over t ask us what we were doing there. "IYS the first time I came here and saw people during the day." the suspicious o t explained, puncturing the attempt of Fon Stevens' defenders to argue that the too Is a tourist dl Pastor Joseph Daniels of the Emory United Methothodisis Church Church defended his expansion, saying it was not a halfw house, a some critics feared, but a com enter bo community center and d low-cost cost st housing. He said they would put In a Fort Stevens visitor center and gin shop. For years, Fort Stevens was a place where many prostitutes and drug addicts and the like would practice their difficulty" the pastor said "They would get drunk and get high and participate in prostitution at the fon and sell their drugs behind the cannons. If ,,as not unusual for us to find used condoms and used ssumbes in and around the stairwell of the church, along with empty bottles and beer cans," He rebutted that the glimpse through the church grounds of Georgia Avenue, where the Confederate troops marched In from the North, wasn't very good anyhow, which is true. Still, In a day and age when people don't remember what happened last year, we've got to be careful to protect our history. Confederate Lt. Gen. Iubal Early's "great rebel raid," as The New York Tines called It, began in the night on Sunday, July 10, 1864, Without Lincoln's knowledge, an assistant Navy secretary had arranged to have a getaway gunboat on the Potomac waiting for the president if things should go badly or the Union. As Marc Leepson writes in the book Desperate la,go menp a Baltimore San correspondent repotted that Early 's men, bloated with confidence, "frequently could be heard to indulge in little controversies as to what buildings should be allowed to stand and what should be destroyed" The fort was undermanned (though Oliver Wendell Holmes Jr. was a soldier there), so bureaucrats and others were urged to drop their pens and take up arms. Lincoln and his wife, Mary, took their carriage to Fort Stevens to watch the skirmish within five miles of the White House and even closer to the summer White House. The 6- foot -4 Abe stood on the parapet until Gen. Horatio Wright ordered him out of the line of (ire. As Lincoln's secretaries John NiCelay and John Hay wrote in their 1890 biography, the president food, apparently um conscious of danger, watching, with that grave and passive couo- tenance, the progress of the right amid the whizzing bullets of the sharp shooters, until an officer fell mortally wounded within three feet of him " Afterward, Early drawled that he may not have taken Washm ton from the Yankees, but "we scared Abe Lincoln like hell" ® 3010 New Y rk rnx, News Service the Best Read Newspaper in Beverly Hills BEVERLY HILLS • BEL AIR • HOLMBY HILLS OPINION LETTERS A Loo At The Sacramento Scene more was a 2004 Aspen FRANKLY SPEAKING Daily News article t "Beverly Hills 81611" that deity- B Stephen Frank erect some of the essence, if not It is as if Gov. Schwarzenegger has said "We don't need no the seriousness and sophistica- stake budget" Arnold has made It clear -we do not need, nor Lion of my economic alliance want a budget to run the state proposal for aeSistercity part- fter six ears and $140 billion of deficits, maybe we B erzhip between Aspen and do not want another bud et from this governor? and Profit" Pr omote no g policy, g g Beverly Hills for mutual benefit To this budget olic ghe governor is using three Written by Thomas Watkins, tactics . the story was headlined: : •First since tune he has held only three perfunctory meetings "Glamour. Wealth. Elective with legislative leaders to discuss proposed budget; Surgery." Ostensibly, the cities •Second, on Aug. the legislature ended its session, without the may have a lot in common, but a passing of a budget. The governor needs cal "special session" request to form he a relation- forth, purpose of passing a poi a re re to to do ship between the municipalities .Finally, to pm an exclamation on point t on the fact he does es not want was turned down llat. The Aspen a budget, Arnold left yesterday for a tour of Asia, instead of work - CiryCOUndlwaslikethe "grinch Ing with our elected officials to finalize a budget. What Is so w ho killed Christmas." It was important about a trip to Asia now During his six day trip he will clear to me its members could ride three high speed tall Chun -choo trains. What can be more not fathom the ancient city -state ' relationships and alliances and m P ortan[ than that? their applicability for modern Arnold wantstoassurepenSionreformbeiorehesignsabudg- times in our country. et —that will not happen. Well, fast forward to this The Democrats want to raise taxes —that will not happen. August and September as I cam- It is clear now that there will not be a budget until after the Cargo for Aspen to celebrate Nov. 2 election. Regardless of who wins for governor, my guess is Aug - 11,2011 like Beverly Hills that we will not have a budget till sometime in January or recently did last week on Sept February . 2, 2010, but with the Beverly There are consequences to the no budget poll, Without HMIs creativetwist of celebrating one, some state spending -such as money for categorical educa- the date coincidentally matchi nR icon programs- cannot be made. Then, to save money the gover- Its 90210 zip code. The 9021 o nor has furloughed close to 200,000 workers for a few days each is famous and representative V month. glitz, glamour, and super- That means less money i, thelrpockets, and less money being affluence but so is 81611 for spent. It also means government agencies will be closed 2 -3 days many people. have each month. His Pp' b l - few will notice. In fact this could be a test D ay " proposed a "8.16.11 F with th "Me "wow" creativity on many employees are really needed. Maybe Whitman is of of Fred r. Beverly Hillse fight, w we could lay off 40,000 state workers and no one but the Hayman. There are several here war will nonce. who heard the idea and liked f does matter to you that the DMV or th Is Vies, am fully aware Aspen closed a rsi d a few w Cla each h month r This i (arcing them, and d n other Is not Beverly Hills whet, agencies, use ee mo and s en at o r less. Bump pitc hed though[ u p the th, An oth er cons nce is the soon ill be u used lOUS. Inst of Idea and d pitched it to movers paving vendors real money the state will issue IOU hope" and "hope" and shakers in the City, who banks accept them as real money. Of course the usta will no came aboard without hesitation longer allow this, as it'rs fraud —It Is not real money, junta govern - and financed "9.02.10 Day" mentpromse. Andweall know the value ofagovernmentprom - without direct City government Ise. money. In the long run, this will ails, the cost of contracts by govern - So far have one high end ment with private firms, since they will have to make up for the sure manager ready to go. I lack of money with higher ices to come out even Some will pull this special event togetthh er y pr. for the benefit o! overall Aspen, I even stop doing business with the state, which would not be too would like to somehow get Mr. bad. Hayman a tree, all expense paid, The responsibility of the governor and legislature is to provide round trip to Colorado so he can a balanced budget by June 30 each year. This has not been done talk with those who support my in more than six years. California now has the worse bond rating effort. Emzy Veazy III of any state In the nation, yen the November ballot has taxes and "' "° deficit spending for us to vote ti 'no" vote wlil start the process Local members of the Bat i of healing our fiscal health . community recently contacted In one of Schwarzeneggers first and funniest movies, Conan Rep. Waxman and Sens. Boxer The Saudi his manhood Is challenged. To prove he Is worthy, and Feinstein requesting they he unchet a camel and lays him out flat. support Secretary of State p it appears that Arnold has used the people of California as his 20 ye condemnation p the oI ical camel. With billions In deficits, h taxes and unem- hi 20 year sentences Iran imposed g on seven Iranian espionage by rt leaders A Arnold bad policies like AB 32, b have been sucker punched falsely accused of espionage and old to prove he Is not a " we man." Only 112 days left of r p opan o rder the Arn activities against the the amateur governor and when rye could get, s eorder. budget. slamlc StephenFrenk3t an ewsandmew - Th y were embers a "" ol , nyh ews. co com. tie e been has a npfificrl an public policy notional level e w hi c h ch aa since i9eo . helped see to the minimum eeds n of Iran's , the 0 stro thereby ha Its roots t Iraq, ants. Baha community ty , the coumry, the f t is monotheisti c and Because Iranian- Americans largess t n l religious teaches that all religions note ortion comprise a large p of the i n 2 t lion adher. sent progressive stages in the e Beverly Hills population, who ents I ems n 236 6 hashas 5 5 mil countries. revelation of God's will and may know a Baha'i, have Some le the charges against mankind � b h building an the have brad religious un o uio wh o ar e, the Baha'i la, Israel lna n R g' ious p ersecu e, or y g for America, Israel and Englan d humankind, many fait h s, indud- Lion at the hands of the Iranian and spreading corruption n M Mosey Jesus and government itself, we are along earth. Their sentencing has been o n Mohammed. members of the community to met with an hurt from world The House and Senate contact civic leaders via phone, outcry leaders and human rights advo- passed resolutions c tax, letter e-mail and voice cacy growps. ran for state - sponsorr otrses sponsored minority a their concerns and outrage of Founded in the mid -18005 Lion of the Baha'i minority and d these human rights injustices. by a Persian nobleman and vlolaling international coven- Laura Palos y Roybal vim MEMORANDUM TO: FROM: THRU: DATE OF MEMO: MEETING DATE: RE: MAYOR & CITY COUNCIL TIM ANDERSON, RECREATION DIRECTOR JEFF WOODS, MANAGER OF PARKS & RECREATION SCOTT MILLER, ASSET MANAGER AUGUST 20, 2010 SEPTEMBER 13, 2010 DESIGN CONTRACT FOR NEW COMPRESSORS AT THE ASPEN ICE GARDEN REQUEST OF COUNCIL: Staff is seeking approval from Council to move forward with the design of new compressors to be installed at the Aspen Ice Garden. The attached contract in the amount of $34,500 (attachment "A ") is the design portion only of a Procurement Supply and Professional Services Agreement. The contractor; Rocky Mountain Mechanical, must come back to Council for approval of the Procurement Supply or build portion of this contract once the design is complete and acceptable to the City. The design contract also requests options for energy efficiency to be explored and improved controls in order to manage the system(s) more efficiently. BACKGROUND: The City of Aspen took over the operations of the Aspen Ice Garden in the late 60's or early 70's. Since then many improvements have taken place such as the renovation of the west end or entry, warm room, skate counter, and restrooms in the mid 90's. In 2001 a replacement of the roof, north wall, lighting, and entire refrigeration slab took place. The mechanical system(s) at the Aspen Ice Garden are some of the oldest equipment in the facility with the current compressors being the original equipment. Due to the regular maintenance of the compressors they have lasted this long and have served the Aspen Ice Garden well. Unfortunately the current York compressors have become so outdated that it is difficult to find parts for them any longer and in some instances parts have to be manufactured to keep them operating. An overhaul of the York compressors costs between $52,000 and $55,000 whereas newer compressors located at the Lewis Ice Arena only cost between $22,000 and $25,000 for an overhaul. The long term maintenance savings alone pay for the cost of the new compressors. DISCUSSION: Staff is working with Rocky Mountain Mechanical in the retrofit of new compressors at the AIG, staff has directed RMM to explore energy efficiency opportunities at the same time. RMM will come back to staff with options of energy efficient opportunities which will them be presented to Council at the time staff is seeking approval of the Procurement Supply or build portion of the contract. While the compressors being specified for this project are more energy efficient than the old compressors, there are still opportunities to utilize waste heat from the new compressors for further energy savings in various mechanical systems. The controls to the mechanical systems at the AIG are also growing old and have seem some signs of failure and in order to ensure the system(s) are all dependable to our user groups, we are asking RMM to explore options and costs to an upgrade of our controls at the AIG (which serve the compressors) as well to ensure oversight of the systems and avoidance of down time to user groups. These options will be brought back to Council as well upon approval of the build portion of the contract. Further discussion regarding the replacement of the Ice Garden Compressors leads to the issue of the refrigerant used at the Ice Garden. The EPA has mandated the discontinuance of R22 Freon (which is being used at the AIG currently) in out years. By the year 2020 R22 Freon will no longer be produced while the use of R22 in existing systems will be allowed to continue (see attachment `B "). The AIG's refrigeration is a closed system which would mean we could continue use of the R22 for many years to come. But in the event of a mechanical failure, accidental leak, or need for containing and replacing the R22 due to maintenance work we could face major issues in getting our ice rink back up and operational. There are certain considerations that must be made for a new refrigerant when installing new compressors, which staff and the contractor are taking, yet it will still require a retro fit of the compressors and other mechanical systems associated with the refrigeration plant at which time we switch to the use of another refrigerant. The Lewis Ice Arena uses ammonia and most likely this is the direction staff would pursue in changing refrigerants at the AIG. The additional cost to replace equipment necessary for the change in refrigerants will approach $200,000 to $250,000. While there is not an immediate need to change out the refrigerant staff felt Council should be aware of the forthcoming phase out of the refrigerant and the need to plan accordingly in retro fitting systems at the AIG. FINANCIALBUDGET IMPACTS: Design and cost to install new compressors will ultimately be about approximately $110,000. Energy Efficient and Control options will be in addition to this cost and will be identified in the request to approve the Procurement Supply Agreement or the installation of the equipment. The new compressors being specified in the scope of work attached to this agreement will be 8% more efficient than the old ones and contribute to a small reduction in utility costs. Also, the new compressors cost far less to maintain on a regular basis. Again an overhaul (about every two years) for the old compressors was between $52,000 and $55,000 where the new compressors cost about $22,000 to $25,000. At which time the City chooses to pursue the retro fit of the new refrigerant per the EPA mandate, the additional cost will be approximately $200,000 to $250,000. ENVIRONMENTAL IMPACTS: The new compressors are rated to be 8% more efficient than the current compressors thus using less energy. There will be additional opportunities for the use of waste heat from the compressors that would add to reductions in energy consumption and staff will bring those options back to Council. The environmental impacts of the current refrigerant used at the Ice Garden (R22 Freon) are identified in attachment `B" and must be addressed at some point in the near future. RECOMMENDED ACTION: Due to current budget constraints staff is recommending the replacement of the old York Compressors at the AIG and to wait 2 or 3 years before the refrigerant is replaced. The old compressors will be replaced with newer more efficient compressors due to the fact that maintenance costs are drastically reduced with the introduction of new compressors and parts are difficult to find at best for the old compressors. In the design of the new system(s) energy efficiency options should and will be explored as identified in this agreement. In addition replacement and/or upgrade of controls to ensure continuous uninterrupted service to our users should be considered as well. ALTERNATIVES: The current compressors work and deliver the refrigerant effectively, only at a high maintenance cost. While parts are sometimes not available, they can be manufactured at a higher cost. We could hold off on replacing the compressors (while this is not recommended by staff) and come back in a couple years and replace the compressors and refrigerant all at once. If we choose to go this direction we will need to overhaul both compressors in 2011 at the cost of about $52,000 each. Other options would include moving forward on the replacement of the refrigerant at this time with added estimated cost of close to $250,000. PROPOSED MOTION: I motion to approved resolution #7zX an agreement with Rocky Mountain Mechanical to design the new compressors for the Aspen Ice Garden, explore energy efficient opportunities and identify options for improved/updated controls which would avoid down time to our users. CITY MANAGER COMMENTS: to ATTACHMENTS: " A " Design Agreement and Scope of Work with Rocky Mountain Mechanical, Inc. "B" information regarding the R22 phase out RESOLUTION N0Y�Ll Series of 2010 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE DESIGN OF NEW COMPRESSORS FOR THE ASPEN ICE GARDEN, AND AUTHORIZING THE MAYOR OR CITY MANAGER TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there exists between the City of Aspen and ROCKY MOUNTAIN MECHANICAL INC.; a mutual interest in providing New Compressors to be designed for the Aspen Ice Garden; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ASPEN, COLORADO: That the City Council of the City of Aspen hereby approves this Procurement Agreement for the design of new compressors to be located at the Aspen Ice Garden; and does hereby authorize the Mayor or 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 13th day of September 2010. Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on the day hereinabove stated. Kathryn S. Koch, City Clerk H:\My Documents\Resolution.doc iN Old' NOpa CITY OF ASPEN STANDARD FORM OF AGREEMENT - 2010"°fy� PROCUREMENT SUPPLY AND PROFESSIONAL SERVICES City of Aspen Project No.: 2010 -006 AGREEMENT made as of 23rd day of August , in the year 2010 BETWEEN the City: The City of Aspen c/o Tim Anderson 130 South Galena Street Aspen, Colorado 81611 Phone: (970) 920-5055 And the Professional: Rocky Mountain Mechanical Systems. Inc. c/o Mark Dawson 951 Vallejo Street Phone: (303) 573 -1223 For the Following Project: Contract Amount: Procurement: $ Professional Services: $ 34,500 Total: $ 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: Sept. 13, 2010 Resolution No.: Aspen Ice Garden Design Build Compressor Renlacement Exhibits appended and made a part of this Agreement: Exhibit A: List of supplies, equipment, or materials to be purchased. Exhibit B: Scope of Work. Exhibit C: Hourly Fee Schedule. The City and Professional agree as set forth below. Agreement for Procurement and Professional Services Page t SUPPLY PROCUREMENT 1. Purchase Professional agrees to sell and City agrees to purchase the supplies, equipment, or materials as described in Exhibit A, appended hereto and by this reference incorporated herein, for the sum of set forth above. 2. Delivery ( FOB [Enter Delivery Addressl ). 3. Contract Documents This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid or Request for Proposals and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties ( [ Add Warranty provisions herel ). 5. Successors and Assigns This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Professional respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Professional shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. PROFESSIONAL SERVICES 6. Scope of Work Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit B attached hereto and by this reference incorporated herein. 7. Completion Professional shall commence Work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no later than October 31, 2010 , with the installation and operation of all the equipment no later than May 31, 2011 . Upon request of the City, Professional shall submit, for the City's approval, a schedule for the performance of Professional's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's project engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by the Professional. 8. Payment In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at Exhibit C appended hereto. Except as otherwise mutually agreed to by the parties the payments made to Professional shall not initially exceed an amount of $34,500 (Thirty Four Thousand Five Hundred Dollars and No Centsl . Professional shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with Professional within ten days from receipt of the Professional's bill. Agreement for Procurement and Professional Services Page 2 9. Non - Assignability Both parties recognize that this Agreement is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Sub - Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agreement. Professional shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors' officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be liable for payment of any sums due which may be due to any sub - contractor. 10. Termination of Procurement. The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 11. Termination of Professional Services The Professional or the City may terminate the Professional Services component of this Agreement, without specifying the reason therefor, by giving notice, in writing, addressed to the other parry, specifying the effective date of the termination. No fees shall be eared after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by the Professional pursuant to this Agreement shall become the property of the City. Notwithstanding the above, Professional shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by the Professional, and the City may withhold any payments to the Professional for the purposes of set -off until such time as the exact amount of damages due the City from the Professional may be determined. 12. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. Professional shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of Professional. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of Professional. Professional shall be solely and entirely responsible for its acts and for the acts of Professional's agents, employees, servants and subcontractors during the performance of this contract. Professional shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to Professional and/or Professional's employees engaged in the performance of the services agreed to herein. 13. 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, if such injury, Agreement for Procurement and Professional Services Page 3 loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the 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. 14. Professional's Insurance (a) Professional agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. The Professional shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) Professional shall procure and maintain, and shall cause any subcontractor of the Professional to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workers' 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 Workers' Compensation requirements of this paragraph. (ii) 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, Agreement for Procurement and Professional Services Page 4 independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii) Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each Professional's owned, hired and non - owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. If the Professional has no owned automobiles, the requirements of this Section shall be met by each employee of the Professional providing services to the City under this contract. (iv) Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by Professional. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. The Professional shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by the Professional's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identify this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of the Professional to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon demand, or City may offset the cost of the premiums against monies due to Professional from City. (fl City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24 -10 -101 et Agreement for Procurement and Professional Services Page 5 seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 15. City's Insurance The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency ( CIRSA) and as such participates in the CIRSA Proper- ty /Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to Professional for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide Professional reasonable notice of any changes in its membership or participation in CIRSA. 16. Completeness of Agreement It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 17. Notice Any written notices as called for herein may be hand delivered or mailed by certified mail return receipt requested to the respective persons and/or addresses listed above. 18. Non - Discrimination No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. Professional agrees to meet all of the requirements of City's municipal code, Section 13 -98, pertaining to non - discrimination in employment. 19. Waiver The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by Professional to which the same may apply and, until complete performance by Professional of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 20. Execution of Agreement by Citv This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor (or a duly authorized official in his absence) to execute the same. 16. 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 Agreement for Procurement and Professional Services Page 6 contract with a subcontractor who knowingly hires with an illegal alien to perform work under the contract. The new laws also require that all contracts for services include certain specific language as set forth in the statutes. The following terms and conditions have been designed to comply with 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. "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, Professional certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that new employees are not employ illegal aliens. (d) Professional hereby confirms that: (i) Professional 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) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional 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) Professional has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Professional does not employ any new employees who are not eligible for employment in the United States; and if Professional has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Professional 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. Professional 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 Agreement for Procurement and Professional Services Page 7 Professional 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) Professional 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 Professional 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, Professional shall: (1) Notify such subcontractor and the City of Aspen within three days that Professional 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 Professional 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) Professional 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 Professional 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 Professional's violation of Subsection 8- 17.5 -102, C.R.S. (ix) If Professional operates as a sole proprietor, Professional hereby swears or affirms under penalty of perjury that the Professional (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. 21. Warranties Against Contingent Fees, Gratuities, Kickbacks and Conflicts of Interest (a) Professional warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a Agreement for Procurement and Professional Services Page 8 commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) Professional agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. (d) In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a Professional, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Professional; and 4. Recover such value from the offending parties. 22. Fund Availability Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 23. General Terms (a) It is agreed that neither this Agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof Agreement for Procurement and Professional Services Page 9 and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date first written above. CITY OF ASPEN, COLORADO: [sttat=] By: [Name] Title: City Manager Date: Approved as to form: City Attorney's Office [Name] Title: Vice President R.M.M.S. Inc. Date: GUST jO Z6 /0 Agreement for Procurement and Professional Services Page 10 IWonII:]rr_� List of supplies, equipment, or materials to be purchased With attached specification sheets, cut sheets, information, etc. Exhibit A will be awarded based upon successful completion of Exhibit B. Exhibit B identifies the system(s) to be designed by Rocky Mountain Mechanical and based upon successful and agreeable design of systems and acceptable costs to perform installation of designed systems, exhibit A will be initiated based upon approval from the Aspen City Council. Agreement for Procurement and Professional Services Page 11 Iw4'll: Scope of Work ROCHy mounmin Meab,nioa( S,s,. , 951 VALLEJO STREET DENVER CO 80204 -3842 Ph: 303.573.1223 Fax: 303.573.7905 www.rockvmech.com August 1, 2010 Thank you for selecting Rocky Mountain Mechanical Systems, Inc. for the above referenced project. We are pleased to provide you with the following schedule of fees for professional Mechanical and Electrical Engineering services as an initial phase in the design /build process of implementing refrigeration system improvements at the Aspen Ice Garden. The design process is inclusive, involving City of Aspen personnel and Rocky Mountain Mechanical's staff of professional designers and trades people to provide well thought -out, efficient, team solution. Following the design phase, Rocky Mountain Mechanical Systems would propose implementation of these solutions in the form of complete turnkey installation to be awarded separately from this contract. I. PROJECT DESCRIPTION Synopsis: Design and specify equipment and systems to convert the Aspen Ice Garden ice rink refrigeration system from the existing York compressors to Vilter 440 series compressors with an emphasis on improved energy and operational efficiencies. Possible future conversion to ammonia will be considered. This will include replacement and /or retrofit of: 1. Compressors and Motors. 2. Discharge Line Oil Separators Brine Chiller. 3. Closed Loop Glycol cooling to compressors 4. Dedicated Snow Melt Pit Heat Exchanger. 5. Compressor Oil Cooling System to capture additional waste heat. 6. Digital Control System for independent ice rink operation consistent with Aspen's goal of uniformity and interlink ability for status and alarms within the city's network of Johnson Controls building automation system. 7. Code upgrades will be included for the engine room where required. Agreement for Procurement and Professional Services Page 12 8. Engineering calculations and estimates to document improved energy efficiencies and savings. 9. A statement discussing current industry best practices and application for ice rink cooling technology including available refrigerants, technologies, heat recovery, and efficiency. In detail, the design phase will specify: Replacing the existing (2) original York compressors with (2) reduced speed Vilter 440 series; six cylinder belt drive compressors with three stages of unloading for optimum efficiency. These compressors will have approximately 34 tons refrigeration (Tr) capacity each versus 38 Tr of the existing York compressors and will be a better match to the current cooling load, as reduced by the roof insulation upgrades. It is more efficient to run compressors at full load condition than to oversize and run at part load. The 440 compressors will likely be matched with new 50 HP motors (although 60 HP maybe used depending on the compressor speed selected). Premium efficient motors will be specified to provide 93 percent efficiency versus approximately 85 percent for the existing motors. Replacing existing discharge oil separators with Vilter 'Super Separator' coalescing style separators. These separators provide 98 -99 percent separation efficiency versus the existing separator 80 to 85 percent recovery. This significantly reduces the oil throughput in the chiller, further increasing heat exchanger performance. Use Vilter float valves that are able to be opened and maintained by staff. Up and downstream of these components shall be Isolation valves and a service valve included to facilitate repairs. (Ensure that coalescent elements in the super separators are field replaceable) Installation of a dedicated plate and frame desuperheating heat exchanger for heat reclaim to capture heat for the snow melt pit to improve the snow melt performance. This function is currently shared with the same exchanger that provides underfloor rink warming. (the plate heat exchanger should be an Alfa Laval (GEA alternate) plate and frame type (cleanable) supplied with an extra set of gaskets). Installation of a dedicated, glycol based, cooling loop for the compressor oil and head cooling would provide more consistent performance with less heat exchanger cleaning required. A plate heat exchanger would be used with cooling provided by the return fluid from either the snow melt or underfloor loop. This would further optimize heat recovery versus rejecting it to the evaporative condenser. Other details: • Specify three -way valves for all pressure reliefs • Extra isolation and service valves where appropriate and to be reviewed and accepted by the City of Aspen. • Provide and maintain adequate clearance to all service ports per manufacturer's recommendations or generally accepted industry standards. • Specify oil to be approved by City of Aspen Agreement for Procurement and Professional Services Page 13 • Specify high quality bag filters to be installed for constant filtration of both brine systems. (Manufacturer to be determined) consistent with Aspen's goal of uniformity and interlink ability for status and alarms within the city's network of Johnson Controls building automation system. The integrated system to provide all aspects of system control and rink management (including lighting and other if desired). The controller would be based on a standalone operational platform capable of independent operation. The system will provide multiple alarm annunciations and be remotely accessible via both internet (email) and telephone modem. Integration to the existing Johnson Controls BMS would be limited to digital output /input alarm and status indications. The integrated control package will provide PID logic for maintaining system suction pressure and /or brine temp. This greatly improves the staging of compressor loading/unloading and sequencing and avoids unnecessary start/stops or overcorrection. Energy consumption by the compressors is typically reduced 5 to 10 percent. Electrical /Controls Installation of a digital Ice Rink Control System to include all drawings and specifications necessary for the construction of a control panel that is functionally equivalent or superior to the existing CIMCO panel as can be demonstrated to the satisfaction of the City of Aspen. Quality components shall be specified in detail and the same brand of components shall be used throughout (Cutler Hammar, Siemens, Allen Bradley...). Standard features shall include but not be limited to: hand /of /auto selection all equipment, LED indicator lights, engraved and permanently mounted placards, back -lit readouts, soft -starts for all motors, DIN rail mounting of components and terminals, interlocks to prevent the operation of any pieces of equipment that should not run at the same time, wires labeled numerically with permanent markings per electrical drawings, cooling and air filtration as required, wires neatly bundled in wire troughs, circuit breakers used instead of fuses where applicable, wiring diagrams laminated and permanently mounted, enclosure NEMA rated to protect components from water spray, and all components labeled on the back plate as per the electrical drawings...) . The DDC Controls Design shall include all drawings, specifications, sequence of operations and points lists necessary for the creation of a control system functionally equivalent or superior to the new CIMCO 6000E Controller as can be demonstrated to the satisfaction of the City of Aspen. Standard features shall include but not be limited to: • The control system shall specify an industrial grade, high resolution operator interface (touch panel computer, or desk -top terminal /server) • The control platform shall be based on the latest Delta Controller available. • Programming shall extract maximum efficiency from all components of the refrigeration plant and have extra points for expansion to include all optional energy saving components designed under the scope of this project. Agreement for Procurement and Professional Services Page 14 • The controller shall monitor and control the refrigeration plant, including leak detection, safety alarms, exhausts, compressor function and staging, brine pump operation, evaporative condenser operation, and VFDs speeds were applicable. • A redundant manual system with procedures specified for manual operation of the plant shall be designed to keep ice frozen in the event of a control system failure or failure of key components that could conceivably confuse the control logic. This system shall use the same brand and model of sensors, gauges and other components as those used at the Lewis Ice Arena. • Permanent computerized storage of input data, trending of the data logged, and operator customizable alarming for parameters that are out -of -range shall be provided, including but not limited to motor status, High and Suction Side pressures, Temperatures, Oil levels, Operator on Duty, I.R. slab temperature, in -slab RTD temperature, Brine /Glycol temperatures in and out, liquid levels, ambient temperatures and humidity inside the rink and out, and tower chemistry inputs. • The control system shall be BACNET compatible and able to interface with Johnson Controls for the sharing of input and output data without the requirement for the purchase of a custom interface. • The control system shall have a scheduling feature to allow operators to set up to 6 different ice temperature set - points to accommodate special users and Ice times, for normal operations, and for night -time set - backs. • The control system must be able to be viewed and operated over LAN and the internet from remote locations without the need for specialized software installed on the remote computers. • Alarm distribution must be easily operator customizable such that hard -wired alarm 1 /0, alphanumeric pager, e-mail and text messaging of alarms will all be provided. • Custom graphics similar to those on the Lewis Ice Arena (per submittal) shall be user friendly and must contain all data necessary for rink operation on one summary screen. • Non- volatile memory must be capable of retaining operator schedules and set - points and data despite an extended power outage. • Data Storage shall be capable of holding up to 7 years of data. • All programming documentation, field wiring as -built drawings and other documentation, programming code, programming software, software licenses, special cables /interfaces and any other items necessary for the support and maintenance of the control system by City of Aspen staff shall be the property of the City of Aspen and deliverable for their sole use upon completion of any build contract. II. SCOPE OF SERVICES A. Engineering Services Scope of services will include Mechanical Engineering and Electrical Engineering services required to produce Construction Documents for the project described above. These documents will consist of stamped engineering drawings and specifications required for pricing, permit and construction. The construction documents will detail installation, Agreement for Procurement and Professional Services Page 15 replacement, and /or retrofit of the products, equipment, and systems list above. We will also submit a preliminary set of drawings for the Owner's review. Included within the Scope of Services are the following: a. Architectural code compliance evaluation of the refrigeration compressor room and associated equipment (life safety, etc.) b. An electrical engineering analysis of the equipment connections and panels in the mechanical room. E C. Conferences with the Owner, Owner's Representative, building department officials, fire department officials, and other governing agencies to determine the final design requirements. d. Design calculations and data. e. Final drawings to be presented in .pdf as well as fully modifiable versions in AutoCad format for conventional methods of reproduction. f. Specifications on the drawings. g. Other design services, as deemed necessary by standard industry practice and approved by the City of Aspen. B. Additional Services: The Basic Services defined above are not intended to represent all services that may be required. Additional Services, those not specifically described above or changes to the Scope of Services, may be authorized by a writing signed by both parties specifying the services and the compensation therefore. The inclusive electrical engineering fee assumes that there is adequate capacity in the facility's existing electrical panels for the new /replacement mechanical equipment. Design of fire sprinkler system modifications (if required) is not included. Architectural, occupancy analysis, ADA, and /or any other space design, analysis, or compliance is also excluded. III. FEES Basic Services: As defined above, Scope of Services will be provided for the lump sum fee of $34,500. to be billed in two parts. Seventy Five percent with delivery of initial drawings and specifications. Twenty Five percent at final acceptance. IV. Conditions of Services The Conditions of Service shall be in accordance with the attached Conditions and Miscellaneous Provisions of Agreement. Agreement for Procurement and Professional Services Page 16 We look forward to working with you on this project. Sincerely, Mark Dawson Vice President Rocky Mountain Mechanical Systems, Inc. 0 CONFIDENTIALITY STATEMENT: All information included within this proposal including engineering, design, and pricing is considered confidential. The information may not be disseminated, copied, emailed, or used for competitive information purposes without the express written consent of an officer of Rocky Mountain Mechanical Systems, Inc. with the knowledge that the City of Aspen must be able to comply with the Colorado Open Records Act. Thank you. All work to be completed in a workman -like manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders and will become an extra charge over and above the estimate. All performance contingent upon strikes, accidents or delays beyond our control. Prices do not include taxes, permits or freight to location unless otherwise specified. Our workers are fully covered by Workmen Compensations Insurance, and the Company is insured for a maximum liability of $5,000,000. Payment terms are net 10 days unless otherwise specified below. Rocky Mountain Mechanical Systems, Inc. will levy and customer agrees to pay a 1.5% per month finance charge on past due or late payments. By signature below the customer agrees to pay Rocky Mountain Mechanical Systems, Inc. all reasonable costs of collection including attorney fees. Agreement for Procurement and Professional Services Page 17 EXHIBIT C Hourly Fee Schedule Fee Schedule for Attachment to City of Aspen Agreement for Procurement and Professional Services ,k. Additional Services: Any service in addition to those specified above shall be authorized in writing and shall be compensated on an hourly basis as follows: Principal $105.00 /hour Project Manager $90.00 /hour Project Engineer $90.00 /hour CAD Operator $70.00 /hour Administration $60.00 /hour B. Reimbursable Expenses: Reimbursable expenses are in addition to compensation to the Engineer for Scope of Services, and include expenditures made by the Engineer, its employees or consultants in the interests of the Project. Reimbursable expenses include: Printing and reproduction costs (other than those for intra -office coordination) — Actual Cost. 2. Delivery/Messenger Service — Actual Cost. Agreement for Procurement and Professional Services Page 18 IL b,e, MEMORANDUM TO: Mayor and City Council FROM: Bill Linn THRU: Steve Barwick DATE OF MEMO: Sept. 2, 2010 MEETING DATE: Sept. 13, 2010 RE: Police Patrol Room Remodel REQUEST OF COUNCIL: This memo is a request for approval of purchasing contracts for furnishings, lockers, carpeting, and related equipment for the renovation of the Aspen Police Department patrol room, which was approved as an AMP project in 20$0. These contracts are for: 1. Sandy's Office Supply — Furniture and acoustical panel partitions, $29,770 2. Tiffin Metal Products — 24 Lockers with integrated file drawers, $28,855 PREVIOUS COUNCIL ACTION: 2009, Council approved AMP project "Patrol Room Retrofit" for 2010 budget cycle. BACKGROUND: The Aspen Police Department and Pitkin County Sheriffs Office jointly use the patrol room area of the Pitkin County Courthouse. This area is in disrepair and the furnishings largely date to the 1980s. There is no area designated for dressing / undressing for work, no area designated for private interviews, and no designated break area. This results in opposite sex employees dressing in plain view of each other (the alternative is to dress in a public restroom), members of the public being interviewed in a less -than optimal setting, and other unprofessional results. The Aspen Police Department is planning to purchase and replace furniture for the entire main patrol room area, including carpeting, modular walls, desks, tables, and cabinets. Locker /dressing rooms and interview rooms are also being built -in using acoustic panel partitions. DISCUSSION: The City of Aspen Facilities Master Plan shows that the space available per police employee, 88 square feet, is well below the national average "benchmark" of 318 sf. Given this very limited space, it is crucial that the space be used as effectively as possible. The plan being implemented has been under consideration since the late 1990s, but has not reached fruition until now. Page 1 of 2 FINANCIALBUDGET IMPACTS: The project was budgeted at $110,000. The contracts under consideration today amount to about $60,000. With additional spending, we anticipate this project coming in at least 25 percent under budget. Sandy's Office Supply bid is under a GSA contract, which does not require a competitive bid. The locker contract was bid out, with low bid being provided by the Debourgh Locker Company, at $26,349 (versus $28,855). However, we selected the higher bid based on two factors: The Tiffin lockers open with two doors, lowering the impact on the very narrow and small locker area. The Debourgh lockers have a single two -foot long door which creates a need to anchor the lockers to the wall (which is impossible with our installation, as there is no wall to anchor to on one side of the locker area). Additionally the quality of features provided in the Tiffin lockers provides a much better product. ENVIRONMENTAL IMPACTS: We are recycling as much of the old furniture as possible. Much of it will be used by the Basalt Police Department to outfit their new headquarters. The remaining desks are being donated to a local charity. One dilapidated desk, and a few of the desk overhead hutches will be thrown away. Two new electrical fixtures are high efficiency replacements. RECOMMENDED ACTION: Police Department staff recommends the adoption of this item on the consent agenda. ALTERNATIVES: Make no change, leaving the area as -is. MANAGER U ATTACHMENTS: Procurement Contract for Sandy's Office Supply. Procurement Contract for Tiffin Metal Products. r Page 2 of 2 12ft First design as charges save now Interview r ms Break Ak L round tables here evl c U a o ®q Cl Men's Wnmel r RESOLUTION # 7 S (Series of 20 10) A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND SANDY'S OFFICE SUPPLY SETTING FORTH THE TERMS AND CONDITIONS REGARDING AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council an agreement between the City of Aspen, Colorado, and Sandy's Office Supply, a copy of which agreement is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that agreement between the City of Aspen, Colorado, and Sandy's Office Supply regarding the purchase of office furniture for the city of Aspen, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, (insert date here). Kathryn S. Koch, City Clerk %' x09!07/2010 Ron s SEP. 1 r ■� 13:53 19709456161 RECEIVED 09/07/2010 13:45 2010 1:32PM ASPEN POLICE DEPT GL-WD NO. 279 P. 1 PAGE 01/04 GLWD 19709456161 SUPPLY PROCUREMENT AGREEMENT THIS AGREEMENT, made and entered into, this 7th day of September 2010, between the City of Aspen, Colorado, herein after referred to as the "City" and Sandy's Office Supply, hereinafter referred to as the "Vendor". WITNESSEfH, that whereas the City wishes to purchase office furnishings, hereinafter called the UNIT(S) being more fully described and attached herewith as 'Exhibit A', in accordance with the terms and conditions outlined in the Contract Documents and any associated specifications, and Vendor wishes to sell said UNIT to the City as specified in its Bid. NOW, THEREFORE, the City and the Vendor, for the considerations hereinafter set forth agree as follows: 1. Purchase Vendor agrees to sell and City agrees to purchase the UNIT(S) as described in the Contract Document and more specifically in Vendors Bid for the sum of Twenty nine thousand, seven hundred and seventy dollars ($29,770). 2. Delivent Via standard carrier to: Aspen Police Dept. 508 E Main #102, Aspen, CO 81611 3. Contract Documents This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as 9 fully set out at length herein. 4. arranties. Standard Sandy's Office Supply warranty terms. 5_ Successors and Assigns This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. 6. Third Parties This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City may assign this Agreement in accordance With the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers No waiver of default by either party of any of the terms, covenants or conditions hereof to be performed, kept and observed by the other party 09/07/2010 13:53 19709456161 GLWD PAGE 02/04 RECEIVED 09/07/2010 13:45 19709456161 SEP. 7.2010 1:33PM ASPEN POLICE DEPT GLWD NO. 279 P. 2 shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. 8. Agreement Made in Colorado The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado, 9. Attorneys Fees In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 10. Waiver of presumption This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 11. Certification Regarding Debarment 4uspenswn menaioum aria vo�uncdiy Exclusion Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. Interest Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. Vendor agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. 091 13:53 19709456161 GLWD RECEIVED 09/07/2010 13:45 19709456161 SEP. 1.2010 1:33PM ASPEN POLICE DEPT PAGE 03/04 GLWD NO. 279 P. 3 Vendor represents that no offfelal, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1 _ Cancel this Purchase Agreementwrttrout any liability by the City; 2- Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor, and 4. Recover such value from the offending parties. 13. Termination for Default or for Convenience of CEN The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience_ 14. Fund Availability Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available- If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 15. City Council Approval If this Agreement requires the City to pay an amount of money in excess of $10,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. Non - Discrimination No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City's municipal code, section 13 -98, pertaining to nondiscrimination in employment Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended, and other applicable state and federal laws respecting discrimination and unfair employment practices. 17. Integration and Modification This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In 09/07/2010 13:53 19709456161 GLWD PAGE 04/04 RECEIVED 09/07/2010 13:45 19709456161 SEP. 7.2010 1:33PM ASPEN POLICE DEPT GLWD NO. 279 P. 4 addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18. Authorized Representative The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he/she is an authorized representative of Vender for the purposes of executing this Agreement and that he/she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement to be duly executed the day and year first herein written In three (3) copies, all of which, to all intents and purposes, shall be considered as the original. FOR THE CITY OF ASPEN: By: ATTEST: City Manager City Clerk VENDOR: _SG"v�y By: 1�QNv) � �ACVtf Servior Sc, es K4 e NT� }�"2 Title 6;j0hn%a9T% uMlyyruc Furniture Options 2- Sep -10 City of Aspen Police Teknlon Syste Leverage Panels Product Color List Price Your Price Accoustical P anels tbd $ 27,500.00 $ 19,662.0 Privacy Screens $ 2,108.00 $ 1,507.00 Laminate Doors —.,— $ -- 3,208.00 $ 2,283.00 Connectors/Trim $ 1,803.00 $ 1,58 $ 4,429.00 "_ $ 1,112.00 $ 1,240.00 N/A $ 225.00 N/A $ 778.00 $ 43,983.00 $ 5,277.00 $ 4,125.00 $ 450.00 $ 53,835.00 E 1,289.00 $ 1,206.00 $ 3,166.00 $ 867.00 $ 886.00 $ 153.00 $ _ 556 .00 _ $ 31,5 85.00 Fwaived Waived Waived $ 31,5 85.00 Tables Ste W /Casters (2) Tables Laminate Lockers Caf6 Seating (2) 84 x84 Ceiling Projection Screen 4x 8 Ma netic White Boards (2) MATERIAL TOTAL Freight In stallation Design Services P ROJECT TO -- 1 RESOLUTION # 7 G (Series of 20 10) A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND TIFFIN METAL PRODUCTS SETTING FORTH THE TERMS AND CONDITIONS REGARDING AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council an agreement between the City of Aspen, Colorado, and Tiffin Metal Products, a copy of which agreement is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that agreement between the City of Aspen, Colorado, and Tiffin Metal Products regarding the purchase of police equipment lockers for the city of Aspen, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Michael C. Ireland, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, (insert date here). Kathryn S. Koch, City Clerk SUPPLY PROCUREMENT AGREEMENT THIS AGREEMENT, made and entered into, this 7th day of September 2010, between the City of Aspen, Colorado, herein after referred to as the "City" and Tiffin Metal Products hereinafter referred to as the "Vendor". WITNESSETH, that whereas the City wishes to purchase police lockers, hereinafter called the UNIT(S) being more fully described and attached herewith as 'Exhibit A', in accordance with the terms and conditions outlined in the Contract Documents and any associated Specifications, and Vendor wishes to sell said UNIT to the City as specked in its Bid. NOW, THEREFORE, the City and the Vendor, for the considerations hereinafter set forth agree as follows: 1. Purchase Vendor agrees to sell and City agrees to purchase the UNIT(S) as described in the Contract Document and more specifically in Vendor's Bid for the sum of twenty eight thousand eight hundred fifty five dollars ($28,855). 2. Delivery Via standard carrier to: Aspen Police Dept. 506 E Main #102, Aspen, CO 81611 3. Contract Documents This Agreement shall include all Contract Documents as the same are listed in the Invitation to Bid and said Contract Document are hereby made a part of this Agreement as if fully set out at length herein. 4. Warranties Standard Tiffin Metal Products warranty terms. 5. Successors and Assigns This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the City and the Vendor respectively and their agents, representatives, employee, successors, assigns and legal representatives. Neither the City nor the Vendor shall have the right to assign, transfer or sublet its interest or obligations hereunder without the written consent of the other party. Third Parties This Agreement does not and shall not be deemed or construed to confer upon or grant to any third party or parties, except to parties to whom Vendor or City may assign this Agreement in accordance with the specific written permission, any right to claim damages or to bring any suit, action or other proceeding against either the City or Vendor because of any breach hereof or because of any of the terms, covenants, agreements or conditions herein contained. 7. Waivers No waiver of default by either party of any of the terms, covenants or conditions hereof to be performed, kept and observed by the other party shall be construed, or operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein contained, to be performed, kept and observed by the other party. Agreement Made in Colorado The parties agree that this Agreement was made in accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to be exclusively in the courts of Pitkin County, Colorado. 9. Attorney's Fees In the event that legal action is necessary to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable attorney's fees. 10. Waiver of Presumption This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and the parties agree that no construction shall be made or presumption shall arise for or against either party based on any alleged unequal status of the parties in the negotiation, review or drafting of the Agreement. 11. Certification Regarding Debarment Suspension Ineligibility, and Voluntary Exclusion Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in any transaction with a Federal or State department or agency. It further certifies that prior to submitting its Bid that it did include this clause without modification in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event that Vendor or any lower tier participant was unable to certify to the statement, an explanation was attached to the Bid and was determined by the City to be satisfactory to the City. 12. Warranties Against Contingent Fees Gratuities Kickbacks and Conflicts of Interest Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business. Vendor agrees not to give any employee of the City a gratuity or any offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. Vendor represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof, except those that may have been disclosed at the time City Council approved the execution of this Agreement. In addition to other remedies it may have for breach of the prohibitions against contingent fees, gratuities, kickbacks and conflict of interest, the City shall have the right to: 1. Cancel this Purchase Agreement without any liability by the City; 2. Debar or suspend the offending parties from being a vendor, contractor or subcontractor under City contracts; 3. Deduct from the contract price or consideration, or otherwise recover, the value of anything transferred or received by the Vendor; and 4. Recover such value from the offending parties. 13. Tennination for Default or for Convenience of City The sale contemplated by this Agreement may be canceled by the City prior to acceptance by the City whenever for any reason and in its sole discretion the City shall determine that such cancellation is in its best interests and convenience. 14. Fund Availability Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Agreement contemplates the City utilizing state or federal funds to meet its obligations herein, this Agreement shall be contingent upon the availability of those funds for payment pursuant to the terms of this Agreement. 15. City Council Approval If this Agreement requires the City to pay an amount of money in excess of $10,000.00 it shall not be deemed valid until it has been approved by the City Council of the City of Aspen. 16. Non - Discrimination No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform under this Agreement. Vendor agrees to meet all of the requirements of City's municipal code, section 13 -98, pertaining to nondiscrimination in employment. Vendor further agrees to comply with the letter and the spirit of the Colorado Antidiscrimination Act of 1957, as amended, and other applicable state and federal laws respecting discrimination and unfair employment practices. 17. Integration and Modification This written Agreement along with all Contract Documents shall constitute the contract between the parties and supersedes or incorporates any prior written and oral agreements of the parties. In addition, vendor understands that no City official or employee, other than the Mayor and City Council acting as a body at a council meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on behalf of the City. Any such Agreement or modification to this Agreement must be in writing and be executed by the parties hereto. 18. Authorized Representative The undersigned representative of Vendor, as an inducement to the City to execute this Agreement, represents that he /she is an authorized representative of Vendor for the purposes of executing this Agreement and that he /she has full and complete authority to enter into this Agreement for the terms and conditions specified herein. IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement to be duly executed the day and year first herein written in three (3) copies, all of which, to all intents and purposes, shall be considered as the original. FOR THE CITY OF ASPEN: M City Manager ATTEST: City Clerk Title G:yohn%agr�supplyyrm Print Price Quotation Tiffin Metal Products Co. 450 Wall Street, Tiffin Ohio 44883 Tel.: 419 -447 -8414, Fax: 419 -447 -8512 Sales: 800- 537 -0983 Tax ID #: 34- 1 302 39 6 To: ASPEN POLICE DEPARTMENT 506 EAST MAIN ST. #102 ASPEN, CO 81611 Attn: BILL LINN Tel.: 970 - 274 -4103 Page 1 of 2 T mfl IN METAL RODUCTS Quote Date: 07/30/10 Print Date: 07/30/10 Reference: ASPEN PD Price Quotation CQ011072 - Draft Item Part Number Part Description Quantity Unit Price Extended Price 1 AFM24P AIRFLOW LOCKER 24X24DX72 24.00 EA $ 570.00 13,680.00 SLAM LATCH, PAINTED STEEL 2 AFDM243618 AIRFLOW BASE /DRAWER 24.00 EA $ 335.00 8,040.00 24Wx36Dxl8H MECH LOCK 3 EPM2490L1836 END TRIM PANEL L LEFT HAND 3.00 EA $ 135.00 405.00 HEMMED EDGE WITH PEMS, 4 EPM2490R1836 END TRIM PANEL L RIGHT HAND 3.00 EA $ 135.00 405.00 HEMMED EDGE WITH PEMS, 5 FRT- SENTINEL FREIGHT TO CUSTOMER 1.00 EA $ 6,325.00 6,325.00 (ESTIMATED) Note: Any surcharge in effect at time of shipment will be applied. Freight estimate does not include lift gate /inside delivery charges. Total Price 28,855.00 Expir. Date: 09/28/10 Your RFQ: ASPEN PD Tax 0.00 Sales Rep: TONYA BREIDENBACH TOTAL $ 28,855.00 r ­+....,ornipimKnr rnmoae IMPORTANT: Prior to Tiffin Metal Products Co. (TMP) accepting an order, the following documentation must be completed and /or submitted with the purchase order. 1. TMP credit application with references 2. Copy of surety bond (public projects only) 3. Joint check agreement (when applicable) LEAD -TIME: 6 -10 weeks after an order is released to production, WHICH REQUIRES THE FOLLOWING, NO DEVIATIONS: 1. Signed approval /submittal drawings 2. Color selection in writing 3. Delivery requirements in writing (place & date) 4. Credit terms must be established file: //C: \DOCUME- 1 \MWITTM —I.TIF \LOCALS -1 \Temp \p0582800493.htm 7/30/2010 'Ed, ASPEN( SNOWMASS ASPEN SKIING COMPANY To: Aspen City Council — From: Deric Gunshor Date: September 7, 2010 Re: Resolution of conditions for Special Event Permit to host three-day music festival Snow Beats City Council Motion: Councilman Skadron moved to approve the Aspen Skiing Company going forward in concept with the special event application in Wagner Park and grant a noise variance conditioned on resolution of the issues raised: how snowmaking will be done within the allowed sound limits; an agreement with the Wheeler Opera House so that it is fully compensated; the applicant's thoughts on definition of sponsorship; consideration of Wagner versus Rio Grande as a venue; report on how traffic and parking will be handled okayed by Randy Ready and John Krueger, opportunities for local non - profits to be involved; seconded by Councilman Romero. All in favor with the exception of Councilman Torre. Motion carried. The applicant Will have a report on the September 13'" Councl agenda. Details for building a 12" layer of manmade snow in Wagner Park: There are two options to achieve a 12" layer of manmade snow in Wagner Park. This layer of manmade snow will compliment a season -long partnership to compact and groom the snow in Wagner Park by the trail crew from Aspen Mountain. This will begin following the first significant snowfall (12" or more) and continue with each subsequent snow event (6" or more). The Aspen Mountain snow and trails expert believe that the grooming of natural snow will build a suffident base for the event. We believe the best way to create the 12" layer of manmade snow would be to make the snow at the base of Lift 1A (top of Aspen Street) and utilize the city snow removal equipment to move snow to Wagner Park. This will require approximately 200 loads between the city's three snow removal trucks. The snow would be delivered to multiple locations on the edge of the park and spread with a snow Cat. A NorAnn race is scheduled after Word Cup which runs through Dec 2. The priority will be to ensure the mountain is open for public skiing but as soon as weather conditions permit we could begin to make a pile for the park. The last choice would be to make snow in Wagner Park using a Super Pole Cat snowmaking machine. We would be able to centralize the machine in the park to minimize impact on any individual business or resident. The following graph charts the decibel reading of that machine which if run during the day and Centralized in the park would be more than 150 ft from any Super PoleCat Sound Levels w /10hp Compressor and 300 psi Water Pressure, Always On Water Flow I..m..W...w.....wetie. n..er.l 60 0 25 A 78 ■ 72 76 85 i 85 ._.... ... _. t.84 75 ' a 80 A 72 60 0 25 A 78 ■ 72 76 ! 78 ._... _.... 1 73 75 ' A 72 y n` Q 70 .. a 70 65 .. 60 0 25 A 78 ■ 72 76 a 74 ._... _.... 1 73 A 72 71 .. a 70 ■ 67 .. 1! 66 50 75 IW 01sUmeiM) A 64 125 " ♦front •SiJc s Back f 20- a 68 ■ 62 150 175 Agreement for use of Wheeler Opera House After meeting with the Wheeler Opera House staff and touring the venue, we have made an acceptable agreement with both parties that we will buyout the space at a rate of $1,000 per day and use the backstage facilities for production of our event. This will include hospitality and green room space for talent as well as office space for production staff. Thoughts on definition and scope of sponsorship Sponsorship is a critical revenue source for the viability and longevity of all events. Aspen Skiing Company will approach our existing partners with the opportunity to sponsor this event. In addition, we will look to partner with other brands that frequently support music specific events. Aspen Skiing Company will look for cash and in -kind contribution to this event to ensure its success. This will include the resubmission of a request for stimulus funds from the City of Aspen. Consideration of Wagner Park versus Rio Grande The selection of Wagner Park over Rio Grande has been made after careful evaluation of each venue. The primary and deciding factor in choosing Wagner Park is because it is in the commercial core of downtown Aspen. This reason is vital to the success of the event and value the event brings to the businesses of downtown Aspen. Rio Grande has been used for multiple events in recent history and none of them have been as successful as events held within Wagner Park. This event requires such significant financial risk that Aspen Skiing Company must make every possible choice that will give this event the best chance for success. There is no room for error and having the event located in the downtown core is crucial. Report on traffic and parking plan The event will have significant impact on the use of Monarch Street between Durant Ave and Hyman Ave. We will need the parking spaces on the south side of Monarch Street during the entire period of load-in and load -out (approximately 8 days) as well as the spaces in Willoughby Park. The event will need to have Monarch Street dosed to through traffic during the event but will be able to be open during the day prior to the event starting at approximately 3pm. Security personal will staff each intersection with road closure to ensure safe flow of traffic through town. Non -profit involvement Aspen Skiing Company is supportive of many local non - profits and contributes to the employee funded and managed Environment Foundation. Each year the concert in downtown Aspen raises thousands of dollars for the Environment Foundation through the proceeds of the beverage sales. This event would raise the bar on those contributions. We are exploring new partnership opportunities with an environmental based non - profit working specifically with bands, concert venues and music festivals. We believe this partnership could yield tremendous value for attendees as well as the non - profit. Until we are able to finalize a deal we are not in a position to announce the non - profit we hope to benefit through this and other music events. • Page 2 A • MEMORANDUM TO: Mayor Ireland and Aspen City Council THRU: Jennifer Phelan, Community Development Deputy Director FROM: Sara Adams, Senior Planner RE: Castle Creek Energy Center, Power Plant Road: Subdivision, Rezoning, Consolidated PUD Review, Growth Management for an Essential Public Facility, Second Reading of Ordinance No. 15, Series of 2010. (public hearing is continued from August 9'") LAth: Jevtemoer I .), /uiv APPLICANT /OWNER: City of Aspen. REPRESENTATIVE: Mitch Haas, Haas Land Planning, LLC. LOCATION: Lot 3 and Open Space 2A of the March Ranch Open Space, along Power Plant Road beneath the Castle Creek bridge. CURRENT ZONING: R -30, Low Density Residential. SUMMARY: The Applicant requests approval to construct a hydroelectric plant, aka the Castle Creek Energy Center, on Power Plant Road adjacent to the City Shop building. The application includes the following reviews: subdivision to create a new lot and to remove the area from the open space inventory, rezoning from R -30 to the Public Zone, consolidated PUD review to determine dimensional requirements, Growth Management Review for an Essential Public. The project is exempt from Stream Margin Review because it is a utility and is essential for public health and STAFF RECOMMENDATION: Staff recommends that City Council grant approval for Subdivision, Rezoning, PUD and Growth Management for an Essential Public Facility for the Castle Creek Energy Center with conditions. 1 Castle Creek Energy Center, Power Plant Road Second Reading of Ordinance No. 15, Series of 2010 09.13.10 Aerial view of proposed site. Arrow indicates proposed location of the new building. N OTE : Site visits to the Maroon Creek Hydroelectric Plant are scheduled with Council on September 7`" at 3:30 and September 9 at 4:00 to observe the stream flow and operation of the existing plant. Staff finds that it may be beneficial to the public and Council to explain how the proposed Ordinance, Memorandum of Understanding (MOU) and Stream Health Monitoring Plan work together to govem this project. Staff drafted the Ordinance to function as the overall land use approval and burden upon the land for the project including Subdivision, Rezoning, PUD plan and GMQS. Section 5 of the Ordinance addresses the environmental impact and operational component of the project by referencing the Miller Study, establishing minimum stream flows for on Castle and Maroon Creeks (which can only be appropriated by the Colorado Water Conservation Board) specifically related to the hydroplant operation, and requiring a MOU and a Stream Health Monitoring plan. The MOU and the Stream Health Monitoring Plan are more flexible governing documents that can be adjusted in accordance with findings described therein — they operate similar to design guidelines that are customarily adopted as part of a large Subdivision or PUD. Any specific technical requirements and data collection related to stream flows should be included in the Stream Health Monitoring Plan and MOU. Both the Ordinance and the MOU state that any changes to the Stream Health Monitoring Plan that are in conflict with Aspen's commitments and objectives of the Castle Creek Energy Center stated in Ordinance 23, Series of 2008 are resolved by City Council. QUESTIONS FROM SECOND READING: During the August 9` public hearing, City Council asked the Applicant to address a number of issues and questions when they returned to Council. The main issues are outlined below and the Applicant's response to these issues is attached as Exhibit N. • Establish baseline information for stream health The Stream Health Monitoring Plan details the different types of baseline data that the City and CDOW are required to gather at designated monitoring stations prior to the operation of the proposed hydroplant. The baseline information in some instances already exists. New or additional information will be gathered starting in the fall of 2010, establishing locations is included in Section 5, part 5, of the Ordinance. Staff recommends that the City and CDOW continue to build upon the Stream Health Monitoring Plan to clearly indicate existing data that can be used as a baseline for comparison, and to identify exactly what new data needs to be gathered, and a timeline for gathering representative baseline information. • ijuraiion or me recommenaeu minimum sucarn mews all i.nsuv WIu IVIMVVu �IVU&3 The City is gathering information to present during the September 13`" hearing regarding this issue. • Accessibility of the data to the public/ real -time automatic gauges The City researched the cost for real -time instream flow gauges which is approximately $10,000 each not including installation. The City commits to installing hydrologic monitoring sites for both Castle and Maroon Creek. Staff finds that the data and annual report should be posted online in addition to being available at the Water Department and recommends that this be included in the MOU, Section 18: Availability of MOU; Recording. More detailed information on the hydrologic monitoring will be presented on September 13` • How does the City's experience at the Maroon Creek hydroplant inform this rp oiect? The City included a brief explanation in the supplemental information about the Maroon 2 Castle Creek Energy Center, Power Plant Road Second Reading of Ordinance No. 15, Series of 2010 09.13.10 Creek facility (attached as Exhibit N) which will be expanded upon during the site visit and the public hearing on September 13 th . Economics of the project: Some financial analysis is included in the supplemental information and the impact of turning the facility off for a portion of the year is addressed in the supplemental. The applicant will provide more detailed analysis during the hearing. Building Size and Importance of Visitor Room The proposed building was designed from the inside out to accommodate the large turbine. The proposed visitor room comprises 178 square feet and provides a small indoor space to view the hydroplant operations. The building can operate without the visitor room, but as the City points out in the supplemental Exhibit N, the room acts as an additional noise buffer between the turbine and the outdoors. Sound Mitigation Baseline sound readings will be taken in the Fall of 2010 on the proposed project site and the results will be posted on the City's website. The building is designed to meet the City's adopted noise ordinance, which will be confirmed within 1 week of the hydroplant commencing operations. Any noise violations require immediate compliance. CHANGES TO THE ORDINANCE There have been a number of changes made to the Ordinance, the majority of which are located in Section 5: Environmental Assessment. These have been done in "track changes," so deleted text is in r ed stFikedffeu and added text is in rg een underline. Staff attached a marked up Ordinance and a clean Ordinance to this memo. RECOMMENDATION: In reviewing the proposal, Staff believes that the project is consistent with the goals of the AACP as well as the applicable review standards in the City Land Use Code. Staff finds that this project will further the community goal to reduce Aspen's carbon footprint. RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to approve Ordinance No. 15, Series of 2010, approving with conditions Subdivision, Rezoning to the Public Zone District, Consolidated PUD approval and Growth Management approval for an Essential Public Facility on second reading." CITY MANAGER COMMENTS: Attachments: Please contact Sara Adams 429 -2778, if you need any copies of previous packet exhibits. EXHIBIT A — Subdivision Review Criteria, Staff Findings. [provided in 7/12/2010 packet] EXHIBIT B — Rezoning Review Criteria, Staff Findings. [provided in 7/12/2010 packet] EXHIBIT C — PUD Review Criteria, Staff Finding. [provided in 7/12/2010 packet] EXHIBIT D — Growth Management Review Criteria, Staff Findings. [provided in 7/12/2010 packet] EXHIBIT E — DRC Comments. [provided in 7/12/2010 packet] EXHIBIT F — Planning and Zoning Commission Resolution No. 9, Series of 2010. [provided in 7/12/2010 packet] 3 Castle Creek Energy Center, Power Plant Road Second Reading of Ordinance No. 15, Series of 2010 09.13.10 EXHIBIT G — Planning and Zoning Commission Minutes from April 20, 2010. [provided in 7/12/2010 packet] EXHIBIT H — Application (bound copy.) [provided in 7/12/2010 packet] EXHIBIT I — Supplemental information to Application dated April 8, 2010. [provided in 7/12/2010 packet] ExinBIT J — Supplemental information to Application dated July 2, 2010. [provided in 7/12/2010 packet] EXHIBIT K — Letter from Roaring Fork Conservancy, dated January 14, 2010. [provided in 7/12/2010 packet] EXHIBIT L — Stream Margin Review Criteria [provided in 8/9/2010 packet] EXHIBIT M — Supplemental information to Application dated August 9, 2010. [provided in 8/9/2010 packet] Exhibit N — Supplemental information to Application dated September 13, 2010 including: • Responses to 8/9/2010 questions • Updated draft Memorandum of Understanding • Updated draft Stream Health Monitoring Program Exhibit O - Council Minutes from August 9, 2010. Exhibit P- public letters received since August 91h meeting. 4 Castle Creek Energy Center, Power Plant Road Second Reading of Ordinance No. 15, Series of 2010 09.13.10 Ordinance No. 15 vet (SERIES OF 2010) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING WITH CONDITIONS SUBDIVISION, REZONING TO PUBLIC ZONE DISTRICT, CONSOLIDATED PLANNED UNIT DEVELOPMENT, AND GROWTH MANAGEMENT REVIEW FOR AN ESSENTIAL PUBLIC FACILITY FOR LOT 3 AND OPEN SPACE 2A OF THE MAROLT RANCH OPEN SPACE SUBDIVISION, AKA THE CASTLE CREEK ENERGY CENTER AND HYDROELECTRIC PLANT, CITY OF ASPEN, PITKIN COUNTY, COLORADO PARCEL NO. 2735- 123 -63 -852 WHEREAS, the Community Development Department received an application from the City of Aspen, requesting approval to construct the Castle Creek Energy Center and Hydroelectric Plant, which included requests for Subdivision, Amendment to the Zone District Map, Planned Unit Development plan, and Growth Management allotments for an Essential Public Facility; and, WHEREAS, the proposed Castle Creek Energy Center will serve an essential public purpose by providing clean renewable hydroelectric power to City facilities thus serving the general public and Aspen community and complying with the voters' directive to reduce carbon emissions, and therefore is categorized as an Essential Public Facility, pursuant to Section 26.104.100; and, WHERAS, the Community Development Director determined that the proposed development is exempt from Stream Margin Review, pursuant to Section 26.435.040.B.2, in that the proposed facility complies to the extent practical with the Stream Margin Review Standards, and concluded that it was appropriate to discuss the stream margin review criteria with the Planning and Zoning Commission in order to identify and address issues associated with the development and Stream Margin area; and, WHEREAS, the subject property is currently zoned R -30 Low Density Residential with a PUD overlay and is part of the dedicated Marolt Ranch Open Space; and, WHEREAS, the electorate voted in 2007 to remove the subject parcel from the Marolt Open Space as stated in City Council Resolution No. 70 Series of 2007; and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended approval of the proposed land use requests with conditions; and, WHEREAS, following a duly noticed public hearing on April 20, 2010, the City of Aspen received a recommendation of approval for Subdivision, Rezoning from R -30 to Public Zone District, Consolidated PUD plan, and Growth Management for an Essential Public Facility from the Planning and Zoning Commission pursuant to Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 1 of 8 Resolution No. 9, Series of 2010, for a 2,025 gross square foot hydroelectric plant located on the property at Lot 3 and Open Space 2A of the Marolt Ranch Open Space Subdivision, City of Aspen, Colorado City and Townsite of Aspen, CO; and, WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendations of the Planning and Zoning Commission, the Community Development Director, and the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS, on July 12, 2010 the Aspen City Council approved Ordinance No. 15, Series 2010, on First Reading, approving with conditions Subdivision, Rezoning from R -30 to Public Zone District, Consolidated PUD plan, and Growth Management for an Essential Public Facility for the property located at Lot 3 and Open Space 2A of the Marolt Ranch Open Space Subdivision, City of Aspen, Colorado City and Townsite of Aspen, CO; and, WHEREAS, the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with the conditions set forth herein, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Dimensional Standards Pursuant to the procedures and standards set forth in Title 26 of the City of Aspen Municipal Code, the Planning and Zoning Commission recommended and the City Council hereby grants approval of Subdivision, a Consolidated Planned Unit Development, Rezoning, and Growth Management Review for an Essential Public Facility for the property located at Lot 3 and Open Space 2A of the Marolt Ranch Open Space Subdivision, City of Aspen, Colorado the following dimensional standards for the Castle Creek Energy Center and Hydroelectric Plant: Table 1: Approved Dimensional Standards: Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 2 of 8 Proposed Dimensional Dimensional Requirement Requirements Minimum Lot Size 23,000 s . ft. Minimum Lot Area per n/a dwelling unit Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 2 of 8 Section 2: Subdivision from Marolt Ranch Open Space Lot 3 and part of Lot 2A of the Marolt Ranch Open Space are hereby removed from the Open Space inventory. The newly created lot, named the Castle Creek Energy Center, is 23,689 square feet as depicted on the survey. A Memorandum of Agreement approving the removal of the subject lot and the approved Open Space land exchange shall be recorded simultaneously with the recordation of the Subdivision plat, and Planned Unit Development plat and agreement. Concurrent with the recordation of the Castle Creek Energy Center Subdivision and PUD plats and agreement, the Marolt Open Space PUD and SIA shall be amended and recorded to reflect the Subdivision approval. The aforementioned recordations shall be made with the Pitkin County Clerk and Recorder prior to submitting an application for a Building Permit. Section 3: Amendment to the Zone District Map Upon the effective date of an act by City Council approving a development application for an amendment to the Zone District map, rezoning the subject lot from R -30 Low Density Residential Zone District with a PUD overlay to the Public Zone District with a PUD overlay, the Community Development Director shall place the amendment on the City's official zone district map. Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 3 of 8 Proposed Dimensional Dimensional Requirement Requirements Maximum Allowable n/a Density Minimum Lot Width 220 ft. Minimum Front Yard Setback measured from 71 ft. p roperty line Minimum Side Yard 5 ft. north side yard; Setback measured from and 185 ft. on south p roperty line side yard Minimum Rear Yard Setback measured from 30 ft. p roperty line Maximum Height 27 ft. Minimum Distance n/a Between Buildings Minimum % Open No requirement. Space Trash Access Area No requirement. 1,928 gross sq. ft., as Allowable Gross Square indicated on the PUD Footage lat. Minimum Off - Street 0 spaces Parking Section 2: Subdivision from Marolt Ranch Open Space Lot 3 and part of Lot 2A of the Marolt Ranch Open Space are hereby removed from the Open Space inventory. The newly created lot, named the Castle Creek Energy Center, is 23,689 square feet as depicted on the survey. A Memorandum of Agreement approving the removal of the subject lot and the approved Open Space land exchange shall be recorded simultaneously with the recordation of the Subdivision plat, and Planned Unit Development plat and agreement. Concurrent with the recordation of the Castle Creek Energy Center Subdivision and PUD plats and agreement, the Marolt Open Space PUD and SIA shall be amended and recorded to reflect the Subdivision approval. The aforementioned recordations shall be made with the Pitkin County Clerk and Recorder prior to submitting an application for a Building Permit. Section 3: Amendment to the Zone District Map Upon the effective date of an act by City Council approving a development application for an amendment to the Zone District map, rezoning the subject lot from R -30 Low Density Residential Zone District with a PUD overlay to the Public Zone District with a PUD overlay, the Community Development Director shall place the amendment on the City's official zone district map. Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 3 of 8 Section 4: Parking Parking is not required on site; however if a Lease Agreement is entered into between the City and CDOT to use the Right of Way for 5 parking spaces, then the parking may be used for the Castle Creek Energy Center. Section 5: Environmental Assessment The City shall operate the Castle Creek hydroelectric plant in accordance with the terms of a license or exemption from licensing which is issued by the Federal Energy Regulatory Commission ( "FERC ") and is accepted by the City. The City shall operate its hydroelectric water rights on Castle Creek to divert water to the Castle Creek hydroelectric plant in a manner that will allow maintenance of a minimum stream flow in Castle Creek in the amount of 13.3 cubic feet per second (cfs) immediately downstream of the point of diversion of the Castle Creek municipal intake, and a minimum stream flow of 17.2 cfs in Castle Creek immediately downstream of the point at which return flows from the Castle Creek hydroelectric plant return to Castle Creek, in order to continue to maintain a healthy stream environment on Castle Creek. In addition, the City shall continue to operate its hydroelectric water rights on Maroon Creek to divert water to the Maroon Creek hydroelectric plant in a manner that will allow maintenance of a minimum stream flow in Maroon Creek in the amount of 14 cfs immediately downstream of the point of diversion of the Maroon Creek municipal intake, in order to continue to maintain a healthy stream environment on Maroon Creek. The foregoing minimum stream flows are recommended by the findings in the June 11, 2010 Miller Ecological Consultants report to provide habitat to protect the aquatic biota during baseflow periods and refuge habitat in the winter. The City, in collaboration with the Colorado Division of Wildlife and the United States Forest Service (to the extent the United States Forest Service is willing and able to participate), has developed a Stream Health Monitoring Plan ( "the Plan"). Because the Plan may require revision as it is implemented, a memorandum of the Plan shall be recorded with the Pitkin County Clerk and Recorder describing the Plan, and stating that a full and complete copy of the Memorandum of Understanding between the City and Colorado Division of Wildlife, and the Stream Health Monitoring Plan together with all exhibits, revisions and additions, as well as data collection forms and reports as required by the Plan, will be maintained at the office of the Aspen Water Department, and will be available for review during the Water Department's normal business hours. The foregoing Memorandum of Understanding shall be recorded with the Pitkin County Clerk and Recorder with the PUD agreement prior to submitting its application for building permit. The City shall conduct assessments of stream health conditions as directed by the Plan, and make such reports to the Colorado Division of Wildlife and other agencies as required by the Plan. In connection with the Plan, the City will do the following, beginning in the fall of 2010: Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 4 of 8 I Identify permanent fish monitoring stations at the locations described in the Plan; 2 Prepare a map showing the locations of the permanent monitoring stations, including GPS descriptions and maintain the map at the Aspen Water Department 3 Identify a hydrologic monitoring site on Castle Creek and a hydrologic monitoring site on Maroon Creek in the fall of 2010; 4 Upgrade as necessary the electrical SCADA and recording equipment at the hydrologic monitoring sites in order to install a staff gage and stage recording device and constant recording thermograph at each hydrologic monitoring_ site, develon a stage discharge relationship (rating curve) for each gage and post the current rating curves on the City website; 5 When they are installed overate the stage recording devices and constant recording thermographs at both hydrologic monitoring sites in order to collect baseline stream flow and temperature data, and post a summary of the data on the City website weekly, and work towards making real -time data available on the City website; and 6 In time for consideration by Colorado Water Conservation Board staff at its February 2011 meeting request the Colorado Water Conservation Board to appropriate an additional instream flow on Castle Creek in the amount of 1.3 cfs (for a total instream flow of 13.3 cfs) immediately below the City's point of hydroelectric diversion and an additional 5.2 cfs (for a total instream flow of 17.2 cfs) at the point of hydroelectric returns to Castle Creek and provide the supporting data compiled by CDOW and Miller Ecological Consultants. During the course of the Monitoring Program, CDOW may determine that stream flows in Castle Creek immediately downstream of the Castle Creek hydroelectric diversion, or steam flows in Castle Creek immediately downstream of the point of hydroelectric returns, should be increased overall or during certain months in order to protect the fisheries and stream habitat. When CDOW advises the City of this determination, the City will develop a miti atg ion Alan satisfactory to CDOW. The mitigation plan may include additional adjustments to hydroelectric plant operation. Through these measures the City will continue to protect stream health. eperatierh'tl If operation of the City's hydroelectric water rights on Castle Creek and Maroon Creek to maintain such increased stream flows is inconsistent with the City's commitments and objectives for the Castle Creek hydroelectric plant, including Ordinance 23, Series of 2008, then the City will seek resolution from City Council. The City Council recognizes that while the City may operate its hydroelectric water rights on Castle Creek and Maroon Creek in order to maintain the stream flows recommended by Miller Ecological Consultants, or greater stream flows, at the specified Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 5 of 8 locations described above, only the Colorado Water Conservation Board ( "CWCB ") is legally authorized to appropriate and hold decrees for instream flow water rights. Section 6: Noise Assessment The Castle Creek Energy Center shall comply with the City of Aspen noise ordinance, Title 18 of the Aspen Municipal Code. The City shall conduct a noise analysis upon completion of the Castle Creek hydroelectric plant to confirm compliance with City noise standards. The City shall submit a baseline sound level report to the Environmental Health Department at the time of building permit application in order to compare with the sound impact of the hydroelectric plant after it is operating. Within 30-da week of being operational, the Environmental Health Department shall take a--sound readings during the daytime and the nighttime to confirm compliance with City standards. Section 7: Buildine Permit Application The building permit application shall include the following: a. A copy of the final City Council Ordinance and P &Z Resolution. b. The conditions of approval printed on the cover page of the building permit set. c. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. d. Improvements to the right of way shall include new grass, irrigation, and possibly the replacement of street trees, and shall be approved prior to building permit submittal. e. An excavation - stabilization plan, construction management plan (CMP), and drainage and soils report pursuant to the Building and Engineering Department's requirements. The CMP shall include an identification of construction hauling routes, construction phasing, and construction traffic and parking plan for review and approval by the City Engineer and Streets Department Superintendent. Staging areas will be identified in the plan. No stabilization will be permitted in the City right of way. Stormwater run -off and management must meet the requirements of the Urban Runoff Management Plan. f. A complete geotechnical report and geotechnical design. g. Accessibility requirements shall meet adopted Building Code requirements. h. An approved landscape plan. Section 8: Eneineerine Department Requirements The City shall comply with all sections of the City of Aspen Municipal Code, including but not limited to Title 21 Streets, Sidewalks and other Public Places, Title 8.50 Flood Damage Prevention and all construction and excavation standards published by the Engineering Department. A final grading and drainage plan meeting all requirements of the City Engineer shall be submitted and approved by the Engineering Department prior to Engineering Department sign -off on the Final Plat. Section 9: Water Department Requirements The City shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 6 of 8 Section 10: Sanitation District Requirements a. Service is contingent upon compliance with the Aspen Consolidated Sanitation District (ACSD) rules, regulations, and specifications, which are on file at the ACSD office, and shall obtain ACSD approval of the City - approved drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. b. On -site utility plans require approval by ACSD. c. Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public rights of way, ACSD easements, or easements that will be dedicated to ACSD in connection with this project. d. All ACSD fees must be paid prior to the issuance of a building permit. e. The glycol heating and snow melt system for the Castle Creek Energy Center project must be designed to prohibit the discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. f Soil Nails are not allowed in the public right of way above ASCD main sewer lines. g. The City's civil engineer will be required to submit existing and proposed flow calculations. Section 11: Exterior Liehtin¢ All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. Section 12: All material representations and commitments made by the City pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 13• 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 any ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 14: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 7 of 8 Section 15 A public hearing on this ordinance will be held the 0 day of August 2010 at 5:00 p.m. in City Council chambers, City Hall, 130 South Galena. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 12 day of July, 2010. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY, adopted, passed and approved this _ day of , 2010. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Approved as to form: City Attorney Attachment A: site plan and elevations Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 8 of 8 Ordinance No. 15 Ulm V w M (SERIES OF 2010) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING WITH CONDITIONS SUBDIVISION, REZONING TO PUBLIC ZONE DISTRICT, CONSOLIDATED PLANNED UNIT DEVELOPMENT, AND GROWTH MANAGEMENT REVIEW FOR AN ESSENTIAL PUBLIC FACILITY FOR LOT 3 AND OPEN SPACE 2A OF THE MAROLT RANCH OPEN SPACE SUBDIVISION, AKA THE CASTLE CREEK ENERGY CENTER AND HYDROELECTRIC PLANT, CITY OF ASPEN, PITKIN COUNTY, COLORADO PARCEL NO. 2735- 123 -63 -852 WHEREAS, the Community Development Department received an application from the City of Aspen, requesting approval to construct the Castle Creek Energy Center and Hydroelectric Plant, which included requests for Subdivision, Amendment to the Zone District Map, Planned Unit Development plan, and Growth Management allotments for an Essential Public. Facility; and, WHEREAS, the proposed Castle Creek Energy Center will serve an essential public purpose by providing clean renewable hydroelectric power to City facilities thus serving the general public and Aspen community and complying with the voters' directive to reduce carbon emissions, and therefore is categorized as an Essential Public Facility, pursuant to Section 26.104.100; and, WHERAS, the Community Development Director determined that the proposed development is exempt from Stream Margin Review, pursuant to Section 26.435.040.B.2, in that the proposed facility complies to the extent practical with the Stream Margin Review Standards, and concluded that it was appropriate to discuss the stream margin review criteria with the Planning and Zoning Commission in order to identify and address issues associated with the development and Stream Margin area; and, WHEREAS, the subject property is currently zoned R -30 Low Density Residential with a PUD overlay and is part of the dedicated Marolt Ranch Open Space; and, WHEREAS, the electorate voted in 2007 to remove the subject parcel from the Marolt Open Space as stated in City Council Resolution No. 70 Series of 2007; and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended approval of the proposed land use requests with conditions; and, WHEREAS, following a duly noticed public hearing on April 20, 2010, the City of Aspen received a recommendation of approval for Subdivision, Rezoning from R -30 to Public Zone District, Consolidated PUD plan, and Growth Management for an Essential Public Facility from the Planning and Zoning Commission pursuant to Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 1 of 8 Resolution No. 9, Series of 2010, for a 2,025 gross square foot hydroelectric plant located on the property at Lot 3 and Open Space 2A of the Marolt Ranch Open Space Subdivision, City of Aspen, Colorado City and Townsite of Aspen, CO; and, WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendations of the Planning and Zoning Commission, the Community Development Director, and the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS, on July 12, 2010 the Aspen City Council approved Ordinance No. 15, Series 2010, on First Reading, approving with conditions Subdivision, Rezoning from R -30 to Public Zone District, Consolidated PUD plan, and Growth Management for an Essential Public Facility for the property located at Lot 3 and Open Space 2A of the March Ranch Open Space Subdivision, City of Aspen, Colorado City and Townsite of Aspen, CO; and, WHEREAS, the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with the conditions set forth herein, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN AS FOLLOWS: Section 1: Dimensional Standards Pursuant to the procedures and standards set forth in Title 26 of the City of Aspen Municipal Code, the Planning and Zoning Commission recommended and the City Council hereby grants approval of Subdivision, a Consolidated Planned Unit Development, Rezoning, and Growth Management Review for an Essential Public Facility for the property located at Lot 3 and Open Space 2A of the Marolt Ranch Open Space Subdivision, City of Aspen, Colorado the following dimensional standards for the Castle Creek Energy Center and Hydroelectric Plant: Table 1: Approved Dimensional Standards: Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 2 of 8 Proposed Dimensional Dimensional Requirement Requirements Minimum Lot Size 23,000 s . ft. Minimum Lot Area per n/a dwelling unit Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 2 of 8 Section 2: Subdivision from Marolt Ranch Open Space Lot 3 and part of Lot 2A of the Marolt Ranch Open Space are hereby removed from the Open Space inventory. The newly created lot, named the Castle Creek Energy Center, is 23,689 square feet as depicted on the survey. A Memorandum of Agreement approving the removal of the subject lot and the approved Open Space land exchange shall be recorded simultaneously with the recordation of the Subdivision plat, and Planned Unit Development plat and agreement. Concurrent with the recordation of the Castle Creek Energy Center Subdivision and PUD plats and agreement, the Marolt Open Space PUD and SIA shall be amended and recorded to reflect the Subdivision approval. The aforementioned recordations shall be made with the Pitkin County Clerk and Recorder prior to submitting an application for a Building Permit. Section 3: Amendment to the Zone District Map Upon the effective date of an act by City Council approving a development application for an amendment to the Zone District map, rezoning the subject lot from R -30 Low Density Residential Zone District with a PUD overlay to the Public Zone District with a PUD overlay, the Community Development Director shall place the amendment on the City's official zone district map. Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 3 of 8 Proposed Dimensional Dimensional Requirement Requirements Maximum Allowable Density n/a Minimum Lot Width 220 ft. Minimum Front Yard Setback measured from 71 ft. p roperty line Minimum Side Yard 5 ft. north side yard; Setback measured from and 185 ft. on south p roperty line side yard Minimum Rear Yard Setback measured from 30 ft. p roperty line Maximum Height 27 ft. Minimum Distance n/a Between Buildings Minimum % Open No requirement. Space Trash Access Area No requirement. 1,928 gross sq. ft., as Allowable Gross Square indicated on the PUD Footage lat. Minimum Off - Street Parking 0 spaces Section 2: Subdivision from Marolt Ranch Open Space Lot 3 and part of Lot 2A of the Marolt Ranch Open Space are hereby removed from the Open Space inventory. The newly created lot, named the Castle Creek Energy Center, is 23,689 square feet as depicted on the survey. A Memorandum of Agreement approving the removal of the subject lot and the approved Open Space land exchange shall be recorded simultaneously with the recordation of the Subdivision plat, and Planned Unit Development plat and agreement. Concurrent with the recordation of the Castle Creek Energy Center Subdivision and PUD plats and agreement, the Marolt Open Space PUD and SIA shall be amended and recorded to reflect the Subdivision approval. The aforementioned recordations shall be made with the Pitkin County Clerk and Recorder prior to submitting an application for a Building Permit. Section 3: Amendment to the Zone District Map Upon the effective date of an act by City Council approving a development application for an amendment to the Zone District map, rezoning the subject lot from R -30 Low Density Residential Zone District with a PUD overlay to the Public Zone District with a PUD overlay, the Community Development Director shall place the amendment on the City's official zone district map. Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 3 of 8 Section 4: Parking Parking is not required on site; however if a Lease Agreement is entered into between the City and CDOT to use the Right of Way for 5 parking spaces, then the parking may be used for the Castle Creek Energy Center. Section 5: Environmental Assessment The City shall operate the Castle Creek hydroelectric plant in accordance with the terms of a license or exemption from licensing which is issued by the Federal Energy Regulatory Commission ( "FERC ") and is accepted by the City. The City shall operate its hydroelectric water rights on Castle Creek to divert water to the Castle Creek hydroelectric plant in a manner that will allow maintenance of a minimum stream flow in Castle Creek in the amount of 13.3 cubic feet per second (cfs) immediately downstream of the point of diversion of the Castle Creek municipal intake, and a minimum stream flow of 17.2 cfs in Castle Creek immediately downstream of the point at which return flows from the Castle Creek hydroelectric plant return to Castle Creek, in order to continue to maintain a healthy stream environment on Castle Creek. In addition, the City shall continue to operate its hydroelectric water rights on Maroon Creek to divert water to the Maroon Creek hydroelectric plant in a manner that will allow maintenance of a minimum stream flow in Maroon Creek in the amount of 14 cfs immediately downstream of the point of diversion of the Maroon Creek municipal intake, in order to continue to maintain a healthy stream environment on Maroon Creek. The foregoing minimum stream flows are recommended by the findings in the June 11, 2010 Miller Ecological Consultants report to provide habitat to protect the aquatic biota during baseflow periods and refuge habitat in the winter. The City, in collaboration with the Colorado Division of Wildlife and the United States Forest Service (to the extent the United States Forest Service is willing and able to participate), has developed a Stream Health Monitoring Plan ( "the Plan"). Because the Plan may require revision as it is implemented, a memorandum of the Plan shall be recorded with the Pitkin County Clerk and Recorder describing the Plan, and stating that a full and complete copy of the Memorandum of Understanding between the City and Colorado Division of Wildlife, and the Stream Health Monitoring Plan together with all exhibits, revisions and additions, as well as data collection forms and reports as required by the Plan, will be maintained at the office of the Aspen Water Department, and will be available for review during the Water Department's normal business hours. The foregoing Memorandum of Understanding shall be recorded with the Pitkin County Clerk and Recorder with the PUD agreement prior to submitting its application for building permit. The City shall conduct assessments of stream health conditions as directed by the Plan, and make such reports to the Colorado Division of Wildlife and other agencies as required by the Plan. In connection with the Plan, the City will do the following, beginning in the fall of 2010 Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 4 of 8 Identify permanent fish monitoring stations at the locations described in the Plan; 2. Prepare a map showing the locations of the permanent monitoring stations, including GPS descriptions, and maintain the map at the Aspen Water Department; 3. Identify a hydrologic monitoring site on Castle Creek and a hydrologic monitoring site on Maroon Creek in the fall of 2010; 4. Upgrade as necessary the electrical, SCADA and recording equipment at the hydrologic monitoring sites in order to install a staff gage and stage recording device and constant recording thermograph at each hydrologic monitoring site, develop a stage discharge relationship (rating curve) for each gage, and post the current rating curves on the City website; 5. When they are installed, operate the stage recording devices and constant recording thermographs at both hydrologic monitoring sites in order to collect baseline stream flow and temperature data, and post a summary of the data on the City website weekly, and work towards making real -time data available on the City website; and 6. In time for consideration by Colorado Water Conservation Board staff at its February 2011 meeting, request the Colorado Water Conservation Board to appropriate an additional instream flow on Castle Creek in the amount of 1.3 cfs (for a total instream flow of 13.3 cfs) immediately below the City's point of hydroelectric diversion, and an additional 5.2 cfs (for a total instream flow of 17.2 cfs) at the point of hydroelectric returns to Castle Creek, and provide the supporting data compiled by CDOW and Miller Ecological Consultants. During the course of the Monitoring Program, CDOW may determine that stream flows in Castle Creek immediately downstream of the Castle Creek hydroelectric diversion, or steam flows in Castle Creek immediately downstream of the point of hydroelectric returns, should be increased overall or during certain months in order to protect the fisheries and stream habitat. When CDOW advises the City of this determination, the City will develop a mitigation plan satisfactory to CDOW. The mitigation plan may include additional adjustments to hydroelectric plant operation. Through these measures, the City will continue to protect stream health.If operation of the City's hydroelectric water rights on Castle Creek and Maroon Creek to maintain such increased stream flows is inconsistent with the City's commitments and objectives for the Castle Creek hydroelectric plant, including Ordinance 23, Series of 2008, then the City will seek resolution from City Council. The City Council recognizes that while the City may operate its hydroelectric water rights on Castle Creek and Maroon Creek in order to maintain the stream flows recommended by Miller Ecological Consultants, or greater stream flows, at the specified locations described above, only the Colorado Water Conservation Board ( "CWCB ") is legally authorized to appropriate and hold decrees for instream flow water rights. Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 5 of 8 Section 6: Noise Assessment The Castle Creek Energy Center shall comply with the City of Aspen noise ordinance, Title 18 of the Aspen Municipal Code. The City shall conduct a noise analysis upon completion of the Castle Creek hydroelectric plant to confirm compliance with City noise standards. The City shall submit a baseline sound level report to the Environmental Health Department at the time of building permit application in order to compare with the sound impact of the hydroelectric plant after it is operating. Within 1 week of being operational, the Environmental Health Department shall take sound readings during the daytime and the nighttime to confirm compliance with City standards. Section 7: Building Permit Application The building permit application shall include the following: a. A copy of the final City Council Ordinance and P &Z Resolution. b. The conditions of approval printed on the cover page of the building permit set. c. A fugitive dust control plan to be reviewed and approved by the City Engineering Department. d. Improvements to the right of way shall include new grass, irrigation, and possibly the replacement of street trees, and shall be approved prior to building permit submittal. e. An excavation- stabilization plan, construction management plan (CMP), and drainage and soils report pursuant to the Building and Engineering Department's requirements. The CMP shall include an identification of construction hauling routes, construction phasing, and construction traffic and parking plan for review and approval by the City Engineer and Streets Department Superintendent. Staging areas will be identified in the plan. No stabilization will be permitted in the City right of way. Stormwater run -off and management must meet the requirements of the Urban Runoff Management Plan. f A complete geotechnical report and geotechnical design. g. Accessibility requirements shall meet adopted Building Code requirements. h. An approved landscape plan. Section 8: Engineering Department Requirements The City shall comply with all sections of the City of Aspen Municipal Code, including but not limited to Title 21 Streets, Sidewalks and other Public Places, Title 8.50 Flood Damage Prevention and all construction and excavation standards published by the Engineering Department. A final grading and drainage plan meeting all requirements of the City Engineer shall be submitted and approved by the Engineering Department prior to Engineering Department sign -off on the Final Plat. Section 9: Water Department Requirements The City shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Section 10: Sanitation District Requirements Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 6 of 8 a. Service is contingent upon compliance with the Aspen Consolidated Sanitation District (ACSD) rules, regulations, and specifications, which are on file at the ACSD office, and shall obtain ACSD approval of the City- approved drainage plans to assure that clear water connections (roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer system. b. On -site utility plans require approval by ACSD. c. Landscaping plans will require approval by ACSD where soft and hard landscaping may impact public rights of way, ACSD easements, or easements that will be dedicated to ACSD in connection with this project. d. All ACSD fees must be paid prior to the issuance of a building permit. e. The glycol heating and snow melt system for the Castle Creek Energy Center project must be designed to prohibit the discharge of glycol to any portion of the public and private sanitary sewer system. The glycol storage areas must have approved containment facilities. f. Soil Nails are not allowed in the public right of way above ASCD main sewer lines. g. The City's civil engineer will be required to submit existing and proposed flow calculations. Section 11: Exterior Li¢htinE All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. Section 12: All material representations and commitments made by the City pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 13: 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 any ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 14: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 15 A public hearing on this ordinance will be held the 9 day of August 2010 at 5:00 p.m. in City Council chambers, City Hall, 130 South Galena. Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 7 of 8 INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 12' day of July, 2010. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor FINALLY, adopted, passed and approved this _ day of , 2010. Attest: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Approved as to form: City Attorney Attachment A: site plan and elevations Ordinance No. 15, Series of 2010 Second Reading, September 13, 2010 Page 8 of 8 Castle Creek Energy Center Supplemental for Application �Yu Date: September 13, 2010 Response to questions from August 9, 2010 Council Meeting, 2 reading Environmental Studies and Stream Health Q. Stream Health Monitoring Plan: A. The Stream Health Monitoring Plan is an addition to the CCEC. We are in the process of developing a plan that provides for a healthy stream in the future which is included in the supplemental packet. By collaborating with CDOW and including the USFS, we ensure additional oversight for the health of Castle and Maroon Creeks in the future. By developing a ten year monitoring plan with specific action items, such as scaling back Hydro production if stream health is affected negatively, we are ensuring that the operations of CCEC will be compatible with a healthy stream. Q. What are the differences to stream health between flows of 15 cfs and 13.3cfs? A. Mountain streams like Castle Creek and Maroon Creek typically maintain low flows for months at a time during late fall, winter and early spring, and stream health is not compromised as long as the hydrograph's ascending and descending limbs are kept intact. As long as there are high flushing flows yearly, Castle Creek will remain healthy at a flow of 13.3 cfs for the entirety of the low flow season (late Oct -early April). Since the City's Castle Creek municipal diversion infrastructure only allows the removal of 25 CFS from in Castle Creek, at any given point it would be impossible to reduce the flows to the winter low flows of 13.3 cfs during the spring runoff, when the creek typically experiences flows of several hundred CFS. Dr. Miller will address the overall requirements for stream health in more depth on September 13th. Studies by Dr. Miller and Mark Uppendahl of CDOW determined that a 13.3 cfs stream flow will protect the natural environment to a reasonable degree. Increasing the winter low flow from 13.3 cfs to 15 cfs, will increase the width of the stream by approximately 6 inches and the depth by a little more than X inch. Maintaining this increase in stream flow will reduce the overall power production during the months of October - April. Q. Consider fish screens A. The intake structures on Castle Creek and Maroon Creek currently have bar screens which reduce debris as well as helping to keep fish from entering the pipeline to Thomas Reservoir. Very few fish are found in Thomas Reservoir, attesting to the effectiveness of these bar screens. No modifications are required for continued use of these intakes and pipelines. In Thomas Reservoir, smaller mesh fish screens (approximately 1 /10 of inch openings) are incorporated in the design and will be installed on the intake structures delivering water from the reservoir to the CCEC. While these structures are not "standard" fish screens, they do provide reasonable fish protection, especially in light of the small number of fish that find their way into Thomas Reservoir in the first place. The Maroon Creek and Castle Creek diversions have operated for decades and there are no reported observations of large numbers of trout transported from the 0 streams to Thomas Reservoir, which indicates that fish entrainment isn't a problem. Fish that do end up in Thomas Reservoir can be removed and returned to the creeks. Fish screens could be installed at the inlets of each pipeline at the stream, requiring construction of new facilities at each location. The estimated cost for each intake ranges from $250,000 to $750,000 for a total of $ $500,000 to $ 1,500,000 for the two locations. Alternatively, additional screening could be installed at the inlet to the penstock /drainline in Thomas Reservoir. Initial cost is $50,000 to $100,000 with yearly maintenance and replacement approximately every five years. Q. Can the Hydrograph be placed in the Ordinance A. Dr Miller's study including hydrographs is a part of the permanent public record through the current process. Hydrographs represent composite data, and any individual year is likely to differ from the hydrographs in the Miller report. It would not be realistically possible for the Castle Creek hydroelectric plant to be operated at all times to mimic a particular hydrograph in the Miller report. Therefore, we believe it is preferable to use the Stream Monitoring Plan to direct plant operations, thereby allowing hydroelectric plant operations to respond to actual conditions that occur on the stream. While the Miller report could be referenced in ordinance, the MOU and monitoring plan are the documents that will govern the City's future stream health monitoring, and are required by the ordinance. This reinforces the value and outcome of the Miller report. Additionally, including a specific hydrograph in the ordinance could be misleading because of highly variable flows and potential climate change impacts. Dr. Miller's hydrographs are developed from actual measurements and statistical correlations, and therefore are generally representative of stream conditions, but do not reflect any particular year. An ordinance requiring that we can produce a specific hydrograph would be overstating the capability of any operator, as the water may not be there in a given year, matching a specific hydrograph year to year is a nearly impossible task from an operations standpoint. That being said, with shoulder seasons and Hydrograph Peak "Flushing Velocities" a similar hydrograph to existing conditions will be maintained. The goal is to operate over the same general range of flows as have occurred in the past, which would include the inter- and intra - annual variability needed to maintain a healthy stream. Q. Fish Ladders A. The Stream Health Monitoring Plan will leave the option for fish passage open. One concern of Dr. Miller and the CDOW is transport of invasive non - native species (generally brown trout) in the upper reaches of the creek if fish passage is provided. The existing diversion structures on Maroon Creek and Castle currently restrict movement of non - native brown trout, which would compete with and prey upon the existing rainbow and brook trout populations. This biological separation would allow an opportunity to restore a native fish population in upper Castle and Maroon creeks. CDOW has gone to great efforts elsewhere in the state to create exactly the habitat for native species that now exists in the upper reaches of Castle Creek and Maroon Creek. 2 Q. Maroon Creek Experiences A. Maroon Creek Hydro has been operated on a semi - annual basis since 1986. Bill Miller conducted Fish and Biological analysis on Maroon and Castle Creeks as part of the Castle Creek Energy Center Project. He found that (Table 11, Page 60 of the Miller Report) the condition of the fish in Maroon Creek is very good. The condition factor is determined by the ability of fish to find adequate food supplies. According to Dr. Miller's study this is indicates that Maroon Creek has a healthy macro invertebrate population which in turn provides the food resources for healthy fish. Q. Real -time In- Stream Flow Readings A. Staff researched a real -time stream flow monitoring device, which can monitor low flow regimes and post findings to the internet so that the public can monitor stream levels during the low flow portions of the year. The additional costs specific to the device is approximately $10,000 each, plus installation costs including connection to SCADA to communicate the information out. The monitoring program recommends, and staff will install a hydrologic monitoring site on the Castle Creek municipal intake structure and on the Maroon Creek intake and diversion structures. Additionally, several stream staff gauges will be placed in accessible locations to allow consistent viewing and instant reading of stream depth. These are simple visual measuring devices. Financial Benefits Q Provide Castle Creek Energy Center Financial analysis A. Included in the August 9`", 2010 Council Supplemental packets were spreadsheets detailing the financial results of 5 in stream flow rates. Following is summary of the analysis results. In- Stream Flow Level (cfs) Castle Creek Flows 12 13.3 15 18 19 Net Energy Production in kWh /year 6,358,958 6,250,527 6,042,005 5,725,051 5,616,620 Net Energy Purchase average Savings in $ /year (annually for 28 year bond life) $ 50,895 $ 43,151 $ 28,258 $ 5,622 $ (2,123) Break -even point: Year that Revenue exceeds Expenditure Yr 2013 Yr 2013 Yr 2014 Yr 2015 Yr 2015 Net Revenue total for 75 year project life $ 35,332,460 $ 34,777,672 $ 33,076,157 $ 30,489,855 $ 29,605,068 Difference in Net Revenue from 13.3 cfs recommended level for 75 Year project $ 554,788 1 $ $ (1,701,515) $ (4,287,817) $ (5,172,604) 3 Q. Results of turning the CCEC off during a portion of the year A. The design and operations of the CCEC accounts for a reduction in operating during a portion of the year when Castle Creek flow naturally decreases to winter time flow levels maintaining in- stream flow levels. The change in electric production as well as financial performance at several flow levels is detailed in previous chart. Castle Creek Energy Center Q CCEC Building Size and Use: 1) Describe the benefit of Visitor's Room; 2) What is the bare minimum size of the building for it to function? A. 1) The CCEC has evolved from a vision of a community education center on renewable energy including information on Aspen's progressive historic leadership to a site specific to demonstration of an operating hydro electric plant. The visitor space has been reduced to a minimum interior holding area outside of the physical operating plant that will allow us to brief small visitor groups on plant operations, features and equipment they will see, and other pertinent information regarding the operating plant. More extensive education programs regarding renewable energy and the City of Aspen's vision will be held in off site locations. 2) Operationally, the building can function without the visitor entry area. However, it provides additional buffer space between the generator room and exterior walls, which will reduce noise and is an integral element of the building design, contributing to an overall balance of the size and mass for the taller element containing the hydroelectric generator. Further, it serves as an architectural feature blending the features of the adjacent historic hydroelectric building and integrating the overall site. Q Sound Mitigation: 1) What is the current noise level for the stream, 2) getting it right the first time. A. 1) In the fall of 2010, Environmental Health will conduct at the CCEC property seasonal baseline sound measurements prior to CCEC operation. The ambient background noise level will vary in response to the changes in stream flow level, level of tourism traffic overhead, local traffic on Power Plant road, equipment uses at City Shops, etc. This action will serve as baseline sound data for the CCEC property. Results will be posted on the City's CCEC web site. 2) Within the ordinance, sound levels are clearly defined. Extensive research and design was conducted including sound measurement at the Colorado Springs Utilities Manitou Springs hydroelectric facility. The Manitou facility includes a generator similar in size, type, and production capability, manufactured by the same company retained for the CCEC. Information from this field work was included in the final design criteria for the CCEC structure to ensure effective sound mitigation and compliance. When CCEC operations begin the fall of 2011, Environmental Health will promptly conduct sound measurements to confirm compliance. Further, measurements will be taken seasonally during the 1st operational year to validate ongoing compliance over changing environmental conditions. Should measurements indicate a sound compliance concern, staff will make immediate modifications to operations and /or structure to correct. If additional equipment is required, CCEC operations will be modified as necessary to comply with current regulations pending completion of modifications. Additional Questions Q Can we build a storage facility for excess hydro - energy generated? A. Storing energy from renewable energy technologies can be challenging. Hydroelectric facilities that operate with a dam and reservoir body can store energy in the form of reservoir water, n W releasing water at times consistent with electric demand. However, since CCEC is a "run of the river" facility not requiring a larger storage facility to operate, this option does not exist. Research organizations such as the National Renewable Energy Laboratory (NREL) are diligently working with the Department of Energy and other organizations to design and improve storage options by focusing on comprehensive energy storage solutions. Whether for stationary, portable, or transportation applications, cost - effective, high- density energy storage is necessary to most effectively utilize the technologies that can change the future of energy and reduce greenhouse gas emissions. At this time, many of these types of energy storage concepts exist primarily in the research phase. O. Dates of public meetings 6 public meetings were held regarding the CCEC prior to the Council hearing on August 9, 2010. These meetings were held: October 17, 2007, October 24, 2007, March 25, 2008, February 2009, July 23, 2009, and June 16, 2010 5 DRAFT 073010 2.3 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding ( "MOU ") is entered into 20_ between the City of Aspen, a Colorado home rule city ( "Aspen "), and the State of Colorado, acting by and through the Colorado Department of Natural Resources, Division of Wildlife ( "CDOW "). Recitals 1. Aspen operates municipal utility enterprise that provides water service and electrical service to its customers within the city and extraterritorially by contract. 2. Aspen owns, controls, operates, and manages water rights, water supplies, and water treatment facilities and other water system infrastructure for the benefit of its customers. 3. Aspen owns, controls, operates and manages the electrical power system used to provide electric power to its customers, and currently purchases mucho of the energy required for this purpose from coal -fired sources. 4. To address the need to reduce carbon emissions, Aspen adopted its "Canary Initiative," which identified a new hydroelectric facility on Castle Creek as part of the City's strategy to reduce carbon emissions. The Castle Creek Hydroelectric Project was approved by the voters in 2007. 5. CDOW is a division of the Colorado Department of Natural Resources as provided in C.R.S. §24 -1 -124, and, among other things, is responsible for fisheries in the State of Colorado, and conducts investigations and provides input to the Colorado Water Conservation Board ( "CWCB ") to assist it in determining stream flow requirements for instream flows to preserve or improve the natural environment to a reasonable decree, in accordance with C.R.S. § 37 -92- 102(3). 6. CDOW consulted with Aspen in connection with its analysis of stream flow and stream habitat impacts of the Castle Creek Hydroelectric Project, and requested Aspen to conduct certain studies and data collection efforts in order to evaluate needed instream flows for Castle Creek, and to better describe the stream habitat. This consultation occurred in accordance with Part 4 of 18 CFR, governing approvals of hydroelectric projects by the Federal Energy Regulatory Commission. 7. Aspen's independent consultant, Miller Ecological Consultants, Inc., has undertaken the studies requested by CDOW, and prepared a report of its findings, entitled "Castle Creek Hydroelectric Plant Environmental Report (June 11, 2010.)" DRAFT 073010 2.3 8. Aspen has agreed to develop and implement, under the direction of CDOW, a stream monitoring program ( "Monitoring Program ") in order to monitor possible impacts of the Castle Creek hydroelectric project operations on the Maroon Creek and Castle Creek fisheries and stream habitat, and, in addition, to monitor Maroon Creek streamflows in order to monitor possible impacts of the existing Maroon Creek hydroelectric operations on fisheries and stream habitat. 9. By this MOU, Aspen and CDOW wish to provide a framework for ongoing cooperation in the development and implementation of the Monitoring Program over a ten -year period after the Castle Creek hydroelectric plant becomes operational. 10. Aspen and CDOW are both empowered to enter into this MOU and are vested with all necessary powers to accomplish the purposes of this Agreement. 11. This Agreement has been approved pursuant to resolutions of the Aspen City Council and the Division of Wildlife of the State of Colorado, Department of Natural Resources. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties agree as follows. 12, Background Aspen currently operates the Maroon Creek hydroelectric plant that diverts water for hydroelectric purposes at the Maroon Creek pipeline, located on Maroon Creek as shown on the attached map. Aspen is planning to construct and operate the Castle Creek hydroelectric plant that will operate in substantially the same manner as the original Castle Creek hydroelectric plant that operated from 1893 to 1958. The planned Castle Creek hydroelectric plant will divert water for hydroelectric production at the Castle Creek - Midland Flume intake, located as shown on the attached map, and will also take delivery of water from Maroon Creek, as was historically done in the original hydroelectric operation. In connection with its application to the Federal Energy Regulatory Commission regarding the Castle Creek hydroelectric project, Aspen engaged Miller Ecological Consultants, Inc. to conduct an environmental review of Castle Creek and Maroon Creek, including, as requested by CDOW, additional aquatic studies to determine appropriate levels of stream flow to protect the aquatic habitat in Castle Creek and Maroon Creek. The additional studies requested by CDOW were completed in the spring of 2010, and are reported in Miller Ecological Consultants' report entitled "Castle Creek Hydroelectric Plant Environmental Report (June 11, 2010) ( "Miller Report. ") With the execution of this MOU, Aspen and CDOW agree that, as between them, the consultation required under 18 CFR Part 4, for development of a small conduit hydroelectric facility to be located as the Castle Creek Hydroelectric DRAFT 073010 2.3 Project, FERC Project No. 13254, has been completed and the consultation requirements of 18 CFR Part 4 have been met. 13. Purpose and Need The purpose of this MOU is to provide for Aspen's development and implementation, aided by CDOW's expertise and the input of the interested governmental entities, of the Monitoring Program for Castle Creek and Maroon Creek. CDOW does not currently have the capability to undertake a lengthy and specialized monitoring program itself, but will provide support and expertise to Aspen as described herein. The Monitoring Program will allow Aspen and CDOW to confirm the appropriate instream flows, and will allow Aspen to develop sufficient information regarding the fisheries and stream habitat in Maroon and Castle Creeks to determine impacts, if any, to the streams from operation of the Castle Creek and Maroon Creek hydroelectric plant operations. That information will allow the adaptive management of Aspen's hydroelectric plant operations to protect the fisheries and stream habitat. 14. Monitorinq Program The Monitoring Program as approved by the parties is attached as Exhibit 1. The Monitoring Program may be revised from time to time as Aspen and CDOW deem appropriate in order to better achieve the purposes of the Monitoring Program as described in Section 12 above. Aspen will seek input from the interested governmental entities prior to any substantial revision to the Monitoring Program. No revision of the Monitoring Program will reduce the number of monitoring stations on Castle Creek and Maroon Creek, nor the 10 -year period of the Monitoring Program. Any revisions or additions (including maps) to the Monitoring Program will be set forth in writing, signed by CDOW and Aspen, dated, and attached hereto as a Revised Exhibit 1, without the need to amend this MOU. The Monitoring Program attached as Exhibit 1 has been reviewed and approved by the interested governmental entities. 15. Consultation with Interested Governmental Entities The Monitoring Program shall provide for consultation among CDOW, the Aspen Utilities Department, the Aspen Engineering Department, and, to the extent it is willing and able to do so, the United States Forest Service ( "USFS ") (collectively, "interested governmental entities ") with regard to implementation of the Monitoring Program, including but not limited to, data collection sites, data collection timing and method, data reporting, data analysis, and any recommendations resulting from such analysis, and implementation of such recommendations. USFS is not party to this MOU, and although its input as an "interested governmental entity" will be solicited, such input will not be a prerequisite to collection or analysis of data or any decision - making process described in this MOU or the Monitoring Program, or any later revisions or additions to the Monitoring Program. 16. Operation of Castle Creek and Maroon Creek Hydroelectric Plants Aspen will operate its hydroelectric water rights and hydroelectric diversions on Castle Creek to divert water to the Castle Creek hydroelectric plant in a manner that will DRAFT 073010 2.3 allow maintenance of an instream flow in Castle Creek in the amount of 13.3 cubic feet per second (cfs) immediately downstream of the point of diversion for the Castle Creek municipal intake, and an instream of 17.2 cfs in Castle Creek immediately downstream of the point at which return flows from the Castle Creek hydroelectric plant return to Castle Creek. Aspen will continue to operate its Maroon Creek hydroelectric water rights and hydroelectric diversions on Maroon Creek to divert water to the Maroon Creek hydroelectric plant in a manner that will allow maintenance of an instream flow of 14 cfs immediately downstream of the point of diversion for the Maroon Creek pipeline. When streamflows in Castle Creek at the point of hydroelectric diversion are insufficient to permit Aspen to maintain the foregoing minimum flows at the specified locations, Aspen reduce or curtail its hydroelectric diversions and hydroelectric plant operation at the Castle Creek hydroelectric plant as needed to allow the above - described instream flows to be met. In addition, Aspen shall continue to operate its hydroelectric water rights and hydroelectric diversions on Maroon Creek to divert water to the Maroon Creek hydroelectric plant in a manner that will allow maintenance of a minimum stream flow in Maroon Creek in the amount of 14 cfs immediately downstream of the point of diversion of the Maroon Creek pipeline. The parties acknowledge that while Aspen may operate its municipal and hydroelectric water rights on Castle Creek and Maroon Creek in order to maintain the certain stream flows at specified locations, only the Colorado Water Conservation Board ( "CWCB ") is legally authorized to appropriate and hold instream flow water rights. 17. Adaptive Management If at any time during the course of the Monitoring Program, CDOW determines, after review of data and consultation with the interested governmental entities, that stream flows immediately downstream of the point of diversion for the Castle Creek hydroelectric plant should be increased in order to protect the fisheries and stream habitat, Aspen shall operate its hydroelectric water rights on Castle Creek to provide such increased stream flow at that location, so long as such operation is also consistent with Aspen's commitments and objectives for the Castle Creek hydroelectric plant. Furthermore, if at any time during the course of the Monitoring Program, CDOW determines, after review of data and consultation with the interested governmental entities, that the hydropower diversions at Castle Creek are degrading the fisheries or stream habitat of Maroon Creek or Castle Creek, Aspen agrees to work cooperatively with the CDOW to develop an operation or mitigation plan to restore the Maroon and /or Castle Creek fisheries to pre - operation levels, provided, however, that such operation or mitigation plan is consistent with Aspen's commitments and objectives for the Castle Creek hydroelectric plant. El DRAFT 073010 2.3 If a requested increase in stream flow in Castle Creek or Maroon Creek, or any other operation or mitigation plan requested by CDOW, is deemed by Aspen staff be inconsistent with Aspen's commitments and objectives for the Castle Creek hydroelectric plant, the Aspen City Council will be required resolve the inconsistency. 18. Availability of MOU: Recording A full and complete copy of this MOU, together with all exhibits, revisions and additions, as well as data collection forms and reports as required by the Monitoring Program, will be maintained at the office of the Aspen Water Department, and will be available for review during the Water Department's normal business hours. Aspen will record a memorandum of this MOU with the Pitkin County Clerk & Recorder. The memorandum will state that a full and complete copy of this MOU, together with all exhibits, revisions and additions, as well as data collection forms and reports as required by the Monitoring Program, will be maintained at the office of the Aspen Water Department, and will be available for review during the Water Department's normal business hours. 19. Amendment Except as provided in Section 14, this MOU may be amended only in a writing signed by the parties, and may not be assigned without the written consent of the parties. 20. Authorization of Signatures The parties acknowledge and represent to each other that all procedures necessary to validly execute this MOU have been performed and that the persons signing for each party have been duly authorized to do so. IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement the date and year first above written. THE CITY OF ASPEN, COLORADO A Municipal Corporation and Home Rule City Mayor Attest: City Clerk APPROVED AS TO FORM: City Attorney, City of Aspen DRAFT 073010 2.3 STATE OF COLORADO DEPARMENT OF NATURAL RESOURCES Division of Wildlife m Attest: APPROVED AS TO FORM: Aspen Draft 9/2/10 "DRAFT' Castle and Maroon Creek Monitoring Program Developed by: Colorado Division of Wildlife August 16, 2010 Aspen Draft 9/2/10 Purpose This monitoring plan was written to address possible impacts to fisheries and stream habitat related to the proposed increased water diversions associated with the City of Aspen's (Aspen) Castle Creek Hydroelectric Plant located in Pitkin County, Colorado. Aspen conducted public meetings and engaged Miller Ecological Consultants, Inc. to undertake studies requested by the Colorado Division of Wildlife (CDOW) in order to obtain current information about fisheries, stream habitat and appropriate instream flows on Castle Creek. The results of those studies are found in Miller Ecological Consultants' report, "Castle Creek Hydroelectric Plant Environmental Report" Qune 11, 2010) and include a recommendation that stream flows in Castle Creek in the amount of 13.3 cfs at the point of diversion for the Castle Creek hydroelectric plant, and 17.2 cfs in lower Castle Creek would be appropriate to provide habitat to protect aquatic biota and provide refuge habitat in the winter. CDOW recommended that Aspen engage in a long term monitoring study of the effects of its future Castle Creek hydroelectric diversion operations on the fishery and stream habitat in Maroon and Castle Creeks. The intent of this Monitoring Program is to identify appropriate study design and data collection efforts for Aspen to pursue in order to monitor possible impacts to the Castle Creek and Maroon Creek fisheries and stream habitat when the Castle Creek hydroelectric plant is operational. Although the CDOW is responsible for fisheries statewide, a lengthy and specialized monitoring program will require resources and personnel beyond the scope of Regional capabilities. However, the CDOW will provide support and expertise to a monitoring program funded and executed by Aspen and its consultants. The Monitoring Program should build sufficient information regarding the fish population and stream habitat in Castle and Maroon Creeks to determine impacts to the streams from the Castle Creek hydroelectric plant operations. The CDOW and Aspen agree to participate in the selection of representative sampling sites and regular collection of data based upon an agreed schedule. Should the parties observe degradation of the fishery or stream habitat due to Castle Creek hydroelectric plant operations, or determine that the recommended instream flows should be adjusted; a cooperative effort will be used to address the modification of future Castle Creek hydroelectric diversion operations. Monitoring Program Components Aspen Draft 9/2/10 Fishery Monitoring In the fall of 2010, the sampling sites ( "monitoring stations ") will be identified by the CDOW in consultation with the United States Forest Service ( "USFS ")' and the City of Aspen Utilities Department and Engineering Department (collectively, "interested governmental entities "). The CDOW will conduct the 2010 fisheries surveys at each of the selected monitoring stations. These 2010 fisheries surveys will be used to establish "baseline conditions ". Permanent monitoring station locations will be established in 2010 and will be located in both Castle and Maroon Creeks. Future sampling collection efforts should occur during the months of September through October to provide data for monitoring overall stream health. CDOW routinely samples fisheries in the fall and a fall sampling schedule would allow for comparison of results from comparable streams. Annual sampling should be completed within two weeks of the original sample date to maintain data consistency. For example, if the stations were sampled the second week of October then future surveys should be conducted on a yearly basis as close to that week as possible. Stations should be at least 500 feet long and contain representative habitat conditions in the area. Fishery sampling will be conducted using standard electrofishing techniques by depletion sampling using the appropriate population estimation technique based on the number of passes. Proposed Sampling Locations On Castle Creek, the CDOW recommends continuing the fish monitoring station located downstream of the hydroelectric diversion point on Castle Creek, as established by Miller Ecological in 2010. In addition, two stations on Castle Creek should also be established, one upstream of the hydroelectric diversion point and one downstream of the outlet of the hydroelectric plant. On Maroon Creek, the CDOW recommends at least three stations be established, including the Miller Ecological Site (located in the lower reach of Maroon Creek approximately one -half mile upstream of the Roaring Fork River) and two additional sites, one located above the Maroon Creek hydroelectric diversion point, and one located in the bypass reach downstream of the hydroelectric diversion and upstream of the point of return. The number and location of the monitoring stations may be adjusted after the initial field visit by the interested governmental entities. When the locations of the permanent monitoring stations have been determined, Aspen will prepare a map showing the locations and size of the monitoring stations, including GPS descriptions. The monitoring station map will be attached to this Monitoring Program. The map will be revised as ' The USFS is not a party to this Monitoring Plan, and although its input as an "interested governmental entity" will be solicited, such input will not be a prerequisite to collection or analysis of data or any decision- making process described in this plan. Aspen Draft 9/2/10 necessary to show the location and GPS description of any additional or relocated permanent monitoring stations. Aspen will also prepare an attachment to this Monitoring Program explaining how the permanent monitoring station locations were selected. Stream Habitat Monitoring Evaluation of stream habitat should be conducted in the same locations as the fish monitoring stations. To determine changes in aquatic habitat, the USFS has provided standard habitat monitoring protocol (Appendix A) that is used locally to monitor stream habitat and would be appropriate for this monitoring program. Habitat evaluation will include channel form, habitat units, depth, wetted width, vegetation, bank stability, riparian characterization, and presence of debris /wood /beaver. The stream habitat evaluation should be conducted prior (within two weeks) to conducting the fisheries surveys. If substantial changes to the stream habitat units, within a monitoring station, have occurred since the previous data collection effort the exact reach of the monitoring station may need to be adjusted, upstream or downstream, to maintain similar habitat quantity and quality characteristics. The forms to be used for such data collection are attached to this Monitoring Program, and may be revised as deemed necessary by Aspen and CDOW. Field forms or other data that has been manually entered will be scanned into electronic format. Water Temperature Monitoring Water temperature will be monitored using constant recording thermographs at all of the established permanent monitoring stations. The thermographs should have the capability to record water temperatures at hourly intervals or less. Data will be downloaded at least monthly, or more frequently as determined appropriate by the interested governmental entities, and transferred to computer spreadsheets for analysis. Macroinvertebrate Collection and Analysis Benthic macroinvertebrate samples will be collected from riffle habitat at each permanent monitoring station concurrently with the fish sampling. Three replicate samples will be taken at each permanent monitoring station using either a modified Hess stream bottom sampler or Surber sampler, depending on site conditions. Samples will be preserved in 70% ethanol and returned to the laboratory where specimens will be identified to the lowest practical taxonomic level. Macroinvertebrate data will be entered into a computer spreadsheet for data analysis. Data analysis will include a species list and calculated values for various indices, including Shannon - Weaver diversity and evenness, Family Biotic Index, total number of taxa, functional feeding groups and macroinvertebrate Aspen Draft 9/2/10 densities. These data will be used, in addition to the fish data, to characterize general aquatic conditions. Hydrologic Monitoring Data will be collected by Aspen on a continuous basis quantifying the hydroelectric diversion flows and stream flows in Castle and Maroon Creeks. The locations for the Hydrologic Monitoring sites ( "hydrologic stations ") on Castle and Maroon Creek will be identified by the interested governmental entities during the 2010 initial field visit. The collected information will identify the timing, frequency, and duration of low and high flow events that may impact (positively or negatively) the stream fish population or aquatic habitat. At each hydrologic station a staff gage and stage recording device will be installed and a stage discharge relationship (rating curve) will be developed. Aspen will post the current rating curve for each hydrologic station on their website. Proposed Monitoring Schedule The CDOW will conduct the initial 2010 fisheries surveys at each of the identified stations in the fall of 2010. Aspen will be responsible for all macroinvertebrate samples and analysis. After the initial 2010 surveys, monitoring will be the responsibility of Aspen for the first ten years, beginning in the year that the Castle Creek hydroelectric facility becomes operational. The CDOW will consult with and provide assistance when available during the initial 10 year monitoring period. During the first four years of operations, Aspen will sample yearly at the monitoring stations for fishery and habitat conditions. From five to ten years following commencement of hydroelectric operations, data will be collected every second year (i.e. years six, eight and ten). Thereafter, the CDOW will collect data at their discretion as needed. Collecting, Analyzing and Reporting Data Data will be reported in such form as Aspen and CDOW may agree. Data reporting forms will include, at a minimum, the following information for each parameter measured: baseline conditions (based on 2010 data collected by CDOW), potential impacts from Castle Creek hydroelectric plant, potential impacts from other sources, and acceptable range for the parameter. The forms will also identify the name of the person collecting the data, the date, method and location of data collection, the stream discharge at the time of data collection and other relevant information. The data collection and reporting forms and any preliminary analysis will be provided by the parry who collected it to Aspen, CDOW and USFS within six Aspen Draft 9/2/10 months of data collection during each collection period, for their review and input. No later than ten months following completion of data collection during each collection period, Aspen will prepare an annual Stream Monitoring Program Report. The report will include the collected data, any photographs or other information collected, analysis of the data, conclusions reached based on data analysis, any suggested "action items" and revisions to the Stream Monitoring Program, and anticipated results of such action items and revisions to the Stream Monitoring Program. The annual report will be in the form attached, or such other form as Aspen and CDOW agree will accurately provide the foregoing information. Availability to the Public The Annual Report, as well as the reporting forms, will be made available to the public as provided in the Memorandum of Understanding. Adaptive Management At any time during the ten -year course of the monitoring program, Aspen agrees it will work cooperatively with the CDOW to: 1. develop an operation or mitigation plan to restore the Maroon and /or Castle Creek fisheries to pre- operation levels, if, after discussions with the interested governmental entities, CDOW determines that the additional hydropower diversions at Castle Creek are degrading the fisheries of Maroon Creek or Castle Creek, 2. develop an operation plan for its hydroelectric water rights and diversions on Castle Creek that will accommodate adjusted instream flow recommendations, if, after discussions with the interested governmental entities, CROW determines that the instream flows should be adjusted in Castle Creek either immediately downstream of the Castle Creek hydroelectric diversion or in the reach downstream of the hydroelectric plant returns. Provided, however, if Aspen determines that these proposed operation or mitigation plans are inconsistent with Aspen's commitments and objectives for the Castle Creek hydroelectric plant, then the Aspen City Council will be required to resolve any inconsistencies. The parties acknowledge that while Aspen may agree to an operation plan for its hydroelectric water rights and Aspen Draft 9/2/10 hydroelectric diversions on Castle Creek and Maroon Creek, only the Colorado Water Conservation Board ( "CWCB ") is legally authorized to appropriate and hold instream flow water rights. -. _ . vyw�,-� Regular Meeting Aspen City Council Aueust 9.2010 REPRESENTATIVE KATHLEEN CURRY ...................................... ............................... 2 CITIZEN PARTICIPATION ............................................................... ............................... 2 COUNCILMEMBER COMMENTS ................................................... ............................... 3 CONSENT CALENDAR .................................................................... ............................... 4 • Affirming Council Appointments ............................................ ............................... 4 • Resolution #60, 2010 — Contract Glenwood Ford — Vehicle Replacement............ 4 Resolution #61, 2010 — Contract Snow Cat ................ o. 4 • Resolution #63, 2010 — Lease Harbert Lumber 38005 Highway 82 ...................... 4 • Minutes — July 26, 2010 ........................................................... ............................... 4 RESOLUTION #59, 2010 — Construction Management Plan Amendment ....................... 4 RESOLUTION #62, 2010 — Wheeler Cinema Services Agreement ... ............................... 5 ORDINANCES #20 AND 21, SERIES OF 2010 — Charter Amendment — Elections....... 5 ORDINANCE #15, SERIES OF 2010 — Castle Creek Energy Center Hydropower Plant 7 ORDINANCE #19, SERIES OF 2010 — Charter Amendment Defining Publication ...... 21 RESOLUTION #64, SERIES• OF 2010 — Extending Given Institute Ordinance #48 Negotiation......................................................................................... ............................... 21 RESOLUTION #58, SERIES OF 2010 — Settlement Agreement Changes ..................... 21 RESOLUTION #57, SERIES OF 2010 — Ballot Question Charter Amendment Defining Publication......................................................................................... ............................... 22 RESOLUTION #65, SERIES OF 2010 — Appeal Administrative Decision Amendment to RioGrande SPA ................................................................................. ............................... 22 Reeular Meetine Aspen City Council Aueust 9, 2010 Worcester said he will present the actual ballot language at the next meeting and will include language to the electorate on what voting for one or both will mean. At a work session, Council looked at 6 alternatives for Charter amendments and directed the city attorney's office to draft Charter amendments on these two of the alternatives. Marilyn Marks said she thought there would be a public process on different types of voting methods being vetted by citizens. Ms. Marks said the ordinance as written closes the ballot box immediately after the election and does not allow for audits and recounts and does not discuss the canvass process. Ms. Marks said she would like to see the ordinance amended to be more transparent. Ms. Marks told Council she is going around the state to examine ballots in the primary election. Ms. Marks said the charter amendment for a runoff specifies a requirement to receive 40% of the votes cast and she supports going back to a 50 %. Mayor Ireland pointed out the previous requirement was 50% for Mayoral candidates and 45% for Council candidates. Roll call vote; Johnson, yes; Romero, yes; Torre, yes; Skadron, yes; Mayor Ireland, yes. Motion carried. ORDINANCE #15, SERIES OF 2010 — Castle Creek Energy Center Hydropower Plant Mayor Ireland noted Council has received Exhibit N containing letters from Steve Child in support; Ruthie Brown in support; Betsy Starodoj opposed; Pietro Danieli and Carol Hill opposed; Ed Zasacky, opposed; Ed Wachs, opposed; Bob Rafelson, opposed. Sara Adams, community development department, told Council this review is for a proposed hydropower plant to be constructed adjacent to the historic city shop building, accessed off Power Plant road. A site visit was conducted today attended by Mayor Ireland, Councilmembers Skadron, Romero, Torre, city staff and members of the public. Ms. Adams said during the site visit, it was noted that the current conditions of Castle Creek is 72 cfs. Ms. Adams outlined the 4 different land use reviews including subdivision review to remove part of lot 3 and create the Castle Creek Energy Center lot. Ms. Adams reminded Council in 2007, voters approved removing this section of open space for a hydroelectric project in exchange for 3 to 1 land swap, mostly located at the base of Aspen mountain. Ms. Adams pointed out the ordinance rezones the newly created lot from R -30 to P, public, to accommodate a hydroelectric plant. This zoning is consistent with the city shop property. The public zone district requires a PUD, planned unit development, to establish dimensional requirements, which are listed in the ordinance. Ms. Adams told Council the proposed one -story building is smaller than a single family home as would be allowed in R -6 and is less than 2,000 square feet. This building includes a turbine room, a shop room, control room and a small visitor room. Ms. Adams said any future additions to this building would require a PUD amendment and Council review. Ms. Adams noted the building will be carbon neutral. Ms. Adams told Council the complaints are not about the building but about the proposed operation. Reeular Meetine Aspen City Council Aueust 9 2010 Ms. Adams showed a floor plan of the building and pointed out the proposed 178 square foot visitor room as an educational component of the project. Ms. Adams said this ordinance also includes growth management review for an essential public facility. Ms. Adams noted as a condition of approval, an employee audit is required after the c/o is granted to determine whether any new employees have been generated. Ms. Adams said it was determined this project is exempt from stream margin review. The project meets all other criteria to the best extent possible. Ms. Adams said staff believes this project is consistent with the goals of the AACP. Dave Hombacher, utilities department, showed a photograph of the historic plant on Castle Creek and told Council the plant provided power to the community for over 65 years and was taken off line in 1958. Hombacher told this hydropower plant will provide energy and will be an effective use of existing resources. This is renewable energy and will save the city money. Hombacher noted one of the forces behind this proposal is a vision statement from the community plan, a focus on development of new renewable energy sources. Hombacher reminded Council the city has adopted a canary action plan, one goal is 100% carbon neutral by 2015. Hombacher noted in 2007, 77% of the voters approved the Castle Creek hydroelectric plant. Hombacher told Council in 1958, the city was 100% hydroelectric. In 2004, the mix is 28% hydro, 8% wind and 64% coal. Hombacher said the challenge is how to get back to 100% renewable energy. Hombacher pointed out by 2007, the city had increased its wind and hydro portfolio and reducing the coal usage to 25 %. Hombacher told Council the Castle Creek Energy Center would add 8% to the renewable energy portfolio leaving 17% coal dependent. Hombacher noted the rest of Colorado is 66.5% coal dependent, 3.9% hydro with the rest being natural gas and wind energy. Hombacher said benefit of having a city run utility allows Council to control and direct that utility. The city has two hydro electric plants, Ruedi and Maroon Creek. Ruedi started in 1983 and has helped keep electric rates in Aspen stable with only one increase in the last 17 years. Hombacher showed graphs of municipally owned utilities and their rates. Aspen residential rates are the 7 lowest in the state. Phil Overeynder, water department, noted there is a $450,000 contribution annually to the general fund as well as electricity to special events, to public buildings and free street lights. Overeynder said since this is a municipally owned utility, the city can develop local resources, like Ruedi hydropower. Overeynder said the city has a cooperative energy provider, MEAN, who has worked with Aspen so the city has the highest in percentage for wind energy of any utility in the country. Councilman Romero noted using renewable energy has been part of the city's value statement for decades. Andy Rossello, water department, pointed a chart of water usage over the past 35 years and the peak usage was in 1993. The city worked on tightening up the leaks in the water system, burying the lines and not have customers run their faucets overnight. Rossello told Council there has been a 2/3 to 1 /4 reduction in water usage. Rossello explained cfs and compared 1 cfs to 1 basketball. Rossello told Council an average Colorado home uses 700 kWh/month. Rossello explained that water is taken from the diversion down to Regular Meetine Aspen City Council August 9, 2010 Thomas reservoir or to a holding area where the drain line takes it to a turbine where the power is produced. Rossello pointed out there is 380' between Thomas reservoir and the Castle Creek in a closed conduit which produces pressure, spinning a wheel and producing power. Rossello said the city has head gates on Castle and Maroon creeks for the diversionary structures. Rossello told Council this is physically constrained by the capacity of the two existing pipes on how much water can be delivered anywhere downstream. Rossello showed the penstock emergency drain taking water from the reservoir down to the ultimate discharge at the hydroplant. Rossello told Council there have been six meetings with the public starting in 2007, including a technical workshop with Roaring Fork Conservancy. Rossello said staff produced a film using a similar plant in Manitou Springs. There has been an informational show on Grassroots, radio and newspaper interviews. Rossello told Council improvements to the project have been made as a result of these public meetings. Additional sound mitigation studies have been done; the city's consultant has done stream flow and habitat studies. The city has developed a stream flow monitoring plan with the CDOW and the USFS. Rossello said the design is to mimic the old city shop building with modern elements using modern technology. Rossello pointed out the ordinance requires strict adherence to the 50 to 55 decibels. Rossello told Council vibration and sound studies were done at the Manitou plant and interviews conducted with the neighbors. The building has interior sound dampening panels to insure no sound migrates from the site. There is a dual door structure to further limit sound from the site. The windows will be fixed so they cannot be opened. There is acoustically lined baffle duct work within the building so that sound will not be transmitted through the ducts. Rossello said if the sound goes above 55 decibels, the duct work can be further baffled. Councilman Romero asked about the drain line/penstock that is under construction. Overeynder said the city was in the process of designing the facility necessary to deal with the hydroelectric plant. During that process, the city's engineers said there is a problem because there are two 30" pipes coming in and only a 24" capacity for water going out. Overeynder said the report dated 1989 states there is no danger because there is no development near the facility. Overeynder said there are 26 structures at Water Place as well as other structures in harm's way immediately down stream where 170 cfs could be released. Overeynder told Council an overtopping of the reservoir could happen because there is not enough capacity to evacuate at the same rate that the flow of water is coming in. Overeynder told Council the reservoir overtopped in the 1980's. Councilman Romero said the work has two possibilities; public safety and penstock for the potential new hydroelectric plant. Overcynder agreed the city needs the facility whether the hydroplant is approved or not. Councilman Romero asked about the conduit application procedure for this drain line. Overeynder said a FERC permit is required to operate the hydro facility. The city started Regular Meetine Aspen City Council August 9, 2010 in 2006 with the initial plans for a feasibility study for the hydro project. The consultants advised, after checking with the federal regulators that the city could be pre - jurisdictional, meaning the project was rebuilding something that existed before the federal power act. The city made a notice of intent to be exempt from the federal power act, which was denied by FERC. Overeynder said city staff told FERC the city was trying to place a new hydroplant to replace an old facility and how should that be done, how the penstock would be constructed and applied for a conduit exemption. Councilman Romero said if the currently constructed drain line were not there, is there an alternate means to reroute the overflow from the reservoir and to divert it away from structures. Overeynder said not practically because of winter operations. The current overflow is a winter surface operation and the culvert is only a few inches thick in the winter. A buried pipeline is what is needed to address overflow. Councilman Johnson asked if there is a way to shut off the intakes at Castle and Maroon creek to manage this problem. Overeynder said that can be controlled but the rate of rise is so rapid staff cannot respond to the overtopping reservoir. One valve has automated controls but there is no power in the other location. The rise is continuing while city staff is responding. Hombacher pointed out the majority of facilities for this project already exist and the penstock is following the historic location. Bill Miller, Miller Ecological Consultants, told Council his firm was hired to conduct studies on Castle Creek and other requested by the division of Wildlife. Miller said in 2009, he conducted studies on wetland and riparian delineation near the proposed energy center. Miller said after a public meeting in 2009, the DOW requested new R2 cross data; the current minimum flow in Castle Creek was done in the 70's. The DOW also wanted analysis of winter habitat, the proposed winter flows, new fish data and boreal toad surveys. Miller said R2cross data is used in the majority of 1400 locations in Colorado where there are in- stream reaches and decreed in- stream flows. Miller said R2Cross is widely used and widely accepted as a standard hydraulic engineering principles. Miller said a sediment control pond will be constructed, which will impact the upper wetland. Miller pointed out there is a total of 83 meters of wetland in the upper wetland what will be impacted is 733 square meters. Miller said the impacts will be addressed before construction. Miller said they were requested to do R2cross on two new sites; one down stream of the Castle Creek diversion in the bypass reach and one down stream of where the tail race puts more water back into the river. Miller said at the downstream of the diversion was at 38 cfs when surveyed in April. Miller presented a slide showing a tape placed where there is a critical ripple that controls habitat. Miller stated the theory is if the critical ripples are protected based on the threshold set by the state, both the habitat and the stream are protected. Miller showed the same area measured at 935 cfs in June, the stream is up over the bank into the riparian vegetation. During peak flow, the stream moves sediment and boulders around and revegetates habitat. Miller said between 12 and 13.3 cfs there is a' /4" in change of depth. Miller told Council he looks at how much area is wet and how much 10 Reeular Meetin¢ Aspen City Council August 9. 2010 that changes with each flow, is there adequate depth to pass through the critical ripples. Some areas have P in depth; average depth meets the criteria set by the state for a stream this width. Miller noted downstream by the Institute where the tail race would come in, this area will get more flow with the hydroplant in operation. The stream is wider in this section and at high flow the stream is up into the bank, inundating the banks and into the trees. Miller showed a slide comparison of 12 cfs flow and 17.2 with the new analysis. Miller said in the R2Cross of the new analysis, the threshold criteria was met. The state has a system where in summer they want 3 criteria — depth, velocity and perimeter, and in winter they want 2 criteria and when 2 out of 3 are met, that is where the winter flow levels are set. This was compared with the 12 cfs from the old method and 3 criteria using the new data, which is where the 13.3 and 17.2 cfs come in using minimum criteria. Miller showed two tables, one below the diversion and the other below the Aspen Institute and a comparison of each discharge, Miller looked at average depth changes, percent wetted perimeter and average velocity. Miller told Council for stream biota, how much physical habitat is available during that time is important; are they getting the wetted area that supports them. The concern is as the flows are changed, there should be little change in the physical habitat; the percent wetted perimeter and the wetted width are things to look at. Miller pointed out the table shows a 43.6% change in discharge; the wetted width only changes 4.5 %. Miller said the boulders help to hold the stream in place so it is not just as open channel. Preserving the wetted width means the productive area of the stream is being preserved. Miller said he was asked to look at the winter habitat conditions and showed an example of the cross sections placed at various locations. These were simulated with a hydraulic model and a range of flows. The existing pools where fish can maintain during the winter will be maintained at 1.5'. The pools are formed by the boulders which scour out ponds behind them. Miller told Council he conducted fish population estimate in April in Castle Creek and captured rainbow, brown, brook trout and sculpin, which is the only native species, the others have been introduced as sport fish. Miller showed fish condition factors to look at fish health and values at 1 or above show a healthy body condition. They are getting enough food indicating a good food resource in this area. Miller said in the upstream areas there are no brown trout; brown trout are predatory on other fish species. Miller noted most snow melt streams have a large peak in spring and early summer as the snow melts. As the flow drops off, the water heats up and the fish are more active. Miller stated one concern with operating a hydroplant is if there will be a big change in flow during the summer and with the change a change in thermal conditions. Miller said during the fall and winter how the refuge habitat areas are being changed and how much will be available for feeding is an issue. Miller said on the graph, lines show the existing conditions and the proposed operation, which shows it will hit the minimum flow in late November and is now being hit in early March. Miller said the studies show the wetter perimeter is being decreased by 10 %, at the most, a small amount which will occur in October/November. 11 Reeular Meetine Asuen City Council August 9, 2010 Miller pointed out downstream of the hydro return, higher flows will be seen and winter flows will be in the 18 to 20 cfs range; downstream of Power Plant road the stream will look similar to how it looks today. Miller said in implications of stream flow to stream health, he looked at the existing hydrograph which has 5 peak flows which creates the habitats; the summer flows are providing 65 to 90% of the bankable area. Miller said the proposed hydroplant operations will maintain the shape of the hydrograph and the ecological function because the limitation of the inflow to 25 cfs and 27 cfs does not allow the facilities to take the stream down to a flat minimum in stream flow year round. Mayor Ireland said he received correspondence saying % of the water will go away that today's stream flow of 55 will go to 12. Miller answered that is not the hydrology he has seen on the proposed operations. Mayor Ireland asked if the ordinances states that the hydrology will be as proposed and that people can rely on those assurances. Overeynder pointed out there is a fixed capacity that can be diverted. Overeynder stated the city will meet the requirements for healthy streams. This assurance will be part of the stream monitoring plan which is part of the ordinance. Miller said the high peak flows and will continue to create and maintain in stream and riparian habitat. The recommended base flows are based on the overall operating plan, not 13.3 cfs year round. The ecological functions will be maintained because the hydrograph shape is being maintained similar to what it is now. The thermal regime will be similar. With those overall conditions, the biological diversity should be maintained. Miller stated the largest flow changes would occur during fall and will result in 10% or less changes in wetted perimeter and provide 90% or more of the wetted perimeter based again existing conditions. Miller said the recommended base flows will increase the depth in winter habitat in critical riffles; the fish are in good condition and the population should be maintained. Miller said from what he has observed on Castle and Maroon creek, these are healthy streams. The stream flows have a good shape to the hydrograph, there is movement in the stream channel and these should remain with the proposed operation. Rossello told Council staff met with the Division of Wildlife and US Forest Service to get a draft of a stream health monitoring program. CDOW will conduct the baseline in 2010 and the city will monitor the stream over the next 10 years to insure the hydrology is similar to this report. Rossello stated there are collaborative efforts between the DOW and the Forest Service and the city to define the program components and these are in Council's packet. Rossello noted there is an adaptive management strategy, the city is willing to adapt the hydro operations in the future to insure the stream flows reads are at the right level. Rossello said in the operational plan, a future Council could increase the flows, not decrease them. Councilman Romero asked what adaptive management would look like if the stream is showing stress. Rossello said the hydro operations could be scaled back and not take the full decreed amount and produce less energy while maintaining an operating hydro. Overeynder told Council in 2002 when there was a water shortage, the city accepted the higher standards of the DOW, continually monitored to make sure the flow levels were 12 Reeular Meetine Aspen City Council August 9, 2010 met at all times, and collected funds to construct a backup potable water system. Overeynder said this backup system is also used to keep the lines from freezing. Councilman Romero asked if there is data on the Maroon Creek system for the health of the fish. Miller answered the CDOW has done an in stream flow analysis, Miller noted the winter flows are currently being met in the Maroon Creek system, at or above the recommended levels. Councilman Romero asked about "dueling engineers ". Miller said that occurs with in stream flow issues. Miller told Council most of his work occurs before installation. Miller said this is a novel and proactive approach to come up with a monitoring plan. Rossello told Council Aspen's senior decreed water rights on Castle Creek may be used for hydroelectric generation. Rossello noted Aspen has a long history of dedication to in stream flow rights, from 1976 with CWCB in stream flow requirement. Rossello said only the CWCB is legally allowed to appropriate and adjudicate in stream flow rights. If the city states 20 cfs in the stream or 13.3 cfs, that right could be taken by another entity; by leaving the water in the stream, the city does nothing to perfect and insure the city's future rights. Hombachcr said Castle Creek Energy Center does make a difference; it produces renewable energy and will see 6.2 million kWh/year, which is enough to power 650 houses/year or 35% of the city's electric accounts. This would reduce the carbon footprint 5,200 tons carbon dioxide /year reduction which is equivalent to taking 908 vehicles off the road every year. Hombacher noted the first 28 years of costs includes the bond payments; the average return above the cost of coal would be $43,000 /year. Overeynder told Council staff met with MEAN and asked them to cost out the hydro and to look at future fuel costs, anticipated at an 8.5% increase for the next 3 years and after that projected at 5% increases. Overeynder said break even on a cash flow condition is within the first 3 years. Councilman Romero said the total bond repayment with interest is a different payback date. Hombacher noted the graph shows operating costs, principle and interest and a comparison of generating hydropower and comparing it to coal power. Mayor Ireland asked if within 3 years the benefits exceed the costs at an operating level. Mayor Ireland said the return on investment analysis noted the period of time some people are looking at is the life of the bonds; it will take 20 years to recover all the bond payments and after that the operating costs drop. Mayor Ireland said he would like to see a life cycle analysis. Overeynder said staff expects a life cycle of 75 years and the total benefit of this decision is $34,777,000 difference between buying coal fired energy and buying renewable energy. Hombacher reiterated the Energy Center will add 8% renewal energy to the city's portfolio, leaving 17% non renewable; it will reduce the carbon dioxide emission and it is a project working with the environment. There will be stream health monitoring, this will provide additional protection to the stream by moving from 12 cfs to 13.3 cfs. The city recommends a robust stream monitoring plan. This plan is compatible with the community focus for the future. The plan has been adopted and improved through the public process and there is a public safety element with local generation. Councilman 13 Regular Meeting Aspen City Council August 9. 2010 Romero asked the negative impact to the overall lifecycle benefit by providing more stream protection, taking net less flow out of the stream. Overeynder said it will not economically cripple the project. Overeynder said the original budget for engineering permitting and fees was $600,000 and the project will be beyond those expenditures and he can report the current status of that budget. Councilman Romero asked what happens if the conduit exemption is denied. Overeynder said if that is the case, the city will apply for a FERC license. The city expects a decision on which way this is going by next construction season. Councilman Johnson asked the cost of one year of monitoring. Hombacher said a single cycle of monitoring will cost $65,000. If one looks at it over 10 years, the proposed length of monitoring, the total cost would be $630,000 and over 28 years, it is a $19,000 against the $43,000 revenues. Hombacher noted one has to look at what is better, more monitoring or the hydro graphing, which is where health monitoring will come it. Mayor Ireland asked if the city did not build this facility, would junior water rights' holders have a better argument that the city had abandoned their rights. Cindy Covell, city's water attorney, told Council the way abandonment works, the division engineer for each water division makes an abandonment list every 10 years and he looks at water that has not been used for 10 years and investigates where there is a likelihood that the water rights have been abandoned. At that point, the city whose water rights are listed has an opportunity to challenge that. In order to prove abandonment, it has to be proven one is not using the water but that it will be abandoned. Ms. Covell said the city's water rights on Castle Creek are 160 cfs. The city is not proposing to use that much with the hydropower and one could argue some of the balance is not intended to be used. Ms. Covell said to the extent water is not being used, it is subject to appropriation by other water rights. Strict administration on a stream, the most junior water right can take all the water he needs unless other senior water rights call. Ms. Covell pointed out if the city is going to by pass 133 cfs as recommended, the city will need to ask the Water Conservation Board to make an appropriation of an additional in stream flow because if the city does not do that, someone else could appropriate that water. Mayor Ireland said this might be subject to an upstream call; there is experience of entities claiming water for themselves. Ms. Covell agreed the city has not seen the end of efforts to divert water to the eastern slope. Mayor Ireland noted putting water to a municipal beneficial use is one of the strongest ways to protect from an upstream diversion. Ms. Covell agreed the Frying Pan project is trying to get every drop of water they think they are legally entitled to take. Mayor Ireland stated the city does not have a guarantee, short of beneficial use, that the stream will not be diverted. Ms. Covell agreed if the city is not beneficially using their water rights, the water not being used is available for appropriation by someone else. Mayor Ireland opened the public hearing. Jack Wilkie said he counted only two public meetings for the public in town. Wilkie said he is concerned about the construction and design and is baffled why a pipe is being 14 Regular Meeting Aspen City Council Aueust 9, 2010 installed when the power plant is not ready. Mayor Ireland said the pipes are being installed to act as a bypass in case there is a dangerous overflow in the reservoir, which is needed even if there is no hydro plant. Overeynder said to complete this project requires two years of construction; this work is what the staff believes will advance the objective. Wilkie said it appears the city is spending millions of dollars for a project with no use. Wilkie noted he heard nothing about the hazard in any of the previous public meetings. Jim Markalunas urged Council to restore the hydroelectric parities established in the 1890's; it is important to help preserve the city's water rights. Markalunas told Council that in 1956 Council purchased the electric system for $250,000; several years later, the city purchased the water system. The city had foresight; the city should re- establish their heritage in power. It is good for the environment and for the community. Ken Neubecker, Carbondale, past president Trout Unlimited, said the city has a serious precedent setting project if it is done right. Neubecker noted more work should be done with the city's consultant to firm up the baseline stream conditions. Neubecker said minimum stream flows are not a base line for the river; that is the hydrograph. Minimum stream flow is the minimum amount of water needed to protect the environment to a reasonable degree. It is the bare minimum to protect the environment. Neubecker noted minimum stream flow is something to keep a stream healthy for a long time.. Neubecker said he thinks the monitoring should be as robust as possible and would like to see the city work with the DOW to have contingency plans before there is an emergency. Neubecker said the gauges should be mounted somewhere to be readily available to everyone can view them and the translation from depth to cfs should be readily available, also. Kirk Gregory said he is concerned with this process; how did this question get on a ballot without things in place. It seems this is a route of circumvention, going through a conduit exemption rather than a full EIS and a federal license. Gregory said this seems as if the city put the cart before the horse. Gregory said he does not think voters understood what the question meant. Gregory said there is a genuine concern about the effect of this project on the stream. Gregory noted this stream is in a natural state and diverting water is not making it better. Gregory said the city should keep track of what is going on in the stream. Gregory asked about monitoring of the stream. Horbacker said it is planned as a 10 year monitoring program with CDOW who did the base monitoring, monitoring every year for 4 years, then every other year up to 10 years. It will be contracted out. Gregory asked the minimum amount of water that can be run through the turbine and generate electricity. Overeynder said it can be run at about 25% of the capacity of the turbine. Tom Starodoj, 580 Sneaky Lane, told Council he attended a public meeting in November 2009, at which city staff stated the cfs on Castle Creek was 55, a normal low for that time of year. Starodoj noted one could envision what 13.3 cfs, a 76% reduction, would look like. Starodoj said 13 cfs is a trickle. Stream flow cannot be artificially reduced to 13.3 cfs regardless of duration. Starodoj said duration is a key issue; how long will the stream flow be reduced to 13.3 cfs; that has not been addressed by staff. Starodoj said everyday 15 Regular Meeting Aspen City Council August 9.2010 the flow is 13.3 is another chink in the health of the stream. Starodcj said this project will be a serious negative impact on the local environment to achieve a small reduction in carbon footprint. Starodcj said this seems to be a rush to green without doing the basic steps. Starodoj requested Council deny Ordinance #15 as this would sacrifice a natural treasure to build a power plant. Paul Noto, water attorney, noted there is a "two pass" rule which means a transmountain diversion that had to go through two mountain passes is considered infeasible and has not been done before. Note pointed out in order to divert water to the front range, it would have to go through as least two passes. Noto said the issues here are the stream flow and the perceived lack of transparency in the public process. Noto said if there is to be a hydropower plant, it should be done right, which means preserve 100% of the integrity of Castle and Maroon creeks. If hydropower cannot be produced without degrading the stream, it should not be considered. Note showed a photograph of the Herrick ditch at 17 cfs. Noto said 13 cfs in Castle Creek will be a trickle. Noto said 13 cfs in the stream from October through April is a long period of time to flat line a stream and to dewater a 2.5 mile section of the stream. Note said Council should reevaluate Miller's science with a modicum of philosophy. Miller answered the question, how low can one take the creek without killing it. Noto said the city should hold itself to a higher standard. Noto said his clients feel the process has not been transparent and the city staff has not been forthcoming in their statements. Noto pointed out the public vote asked the voters to approve increasing the debt at $5.5 million to build a new hydroelectric facility on Castle Creek. Noto said the ballot question did not cover the difficult issues. Note said it is not accurate to say that 77% of the voting public voted in favor of this project. Noto pointed out the city is asking for a conduit exemption, which is an exemption from the full license, and the environmental analysis is less stringent in a conduit exemption. The conduit exemption requires a drain line from Castle Creek. The voters voted on a hydroelectric facility, not a drain line in the ground. Noto questioned whether putting pipeline in the ground with bonds from a hydroelectric facility is appropriate. Noto stated the process is rushed and could have been more thorough. Council has the ability to remedy that. Ilona Nemeth said she would like to understand the impact between the point of diversion and the power plant. Ms. Nemeth pointed out there are at least 3 irrigation ditches and are those water rights included in the 13.3 cfs minimum water flows. Miller said 13.3 cfs is what remains in the stream. Ms. Namath said this is based on a hydrograph and asked if the ordinance could be based on monthly minimum so that at certain times, the water levels could be maintained. Miller said during July there is not the ability to take it down to 13.3 cfs. Miller told Council his analysis is based on the proposed operating agreement, which is the hydrograph. The maximum that can be diverted is 25 cfs to maintain the hydrograph shape and by the physical constraints in the system. Overeynder said although there is no physical ability to take that much water, if Council wants that, they can amend it. Ms. Nemeth said as well as looking at history, there is the future to look at and Castle Creek should not be decimated based on a rushed process. 16 Reeular Meetine Aspen City Council Au¢ust 9, 2010 Georgia Lipkin told Council she grew up in Aspen and takes a strong stance against the implementation of a hydroelectric facility on Castle Creek. Ms. Lipkin said she is circulating a petition. Ms. Lipkin pointed out on July 29' the water level in Castle Creek was low and was 58 cfs and the hydroelectric facility would take that down to 13.3 cfs. Ms. Lipkin reminded Council Aspen was founded on a environmentally friendly lifestyle and to respect the balance of the natural lifestyle. Ms. Lipkin said the city should preserve the river environment that people can be proud to be part of. Ms. Lipkin urged Council to provide an open, eco- friendly method of preserving the community. Councilman Torre asked the total capacity of the pipe. Overeynder said the capacity is 25 cfs which is the maximum flow that can get into the pipe. Councilman Torre reiterated only 25 cfs can be removed at a time and the stream would only be lowered to 13.3 cfs if the stream were 38 cfs. Jody Guralnick said she has spent hours roaming the banks of Castle Creek and knows the life that teems around the rivers. Ms. Guralnick stated only 3 to 5% of all the land in Colorado is riparian zone and 90% of all the wildlife lives in and around that riparian land. Ms. Guralnick said proposing a project as green which will make changes to the river and the riparian zone is short sighted. Ms. Guralnick said Council should view the river as a living entity. Ms. Guralnick said the city proposes a $10 million hydroelectric facility that will take 20 years to pay back in electric uses and this facility may be archaic by that time. Alan Quasha said the big picture is destroying a stream to power about 600 houses; if Council can protect the stream, there would be no problem. Quasha said when the potential significant harm to the stream is balanced against the minimal positive gains, this is an irresponsible project. Quasha said the city is gambling with a stream for minimum economics and benefit to the environment and the net benefits have not been examined. Jack Kaufman, Maroon Creek, told Council since Phil Overeynder took over the management of the hydroelectric plant on Maroon Creek, the operation has improved. Staff is there daily checking the stream to make sure it is okay. Kaufman said there is a balance to look at and the community has to look at compromising in an intelligent way and look at providing our own needs and power. Maureen Hirsch, Sneaky Lane resident, said the gauges are not going to be put in the river; the water level is being measured manually instead of with an automatic gauge. Ms. Hirsch said in the low water months the river can freeze and staff cannot do manual readings. Ms. Hirsch requested Council to condition this on installation of automatic gauges. Ms. Hirsch pointed out staff states 650 home/year will be served with this hydroelectricity. Ms. Hirsch said the city is not expanding the current service area so that will be existing houses. Ms. Hirsch suggested the city should buy more wind and solar power from MEAN rather than building this hydroelectric facility. Ms. Hirsch noted in order to run this hydroelectric facility, water has to be diverted from both Castle and Maroon creek. Ms. Hirsch pointed out when this was a hydroelectric facility in 1893, this was not a residential area. 17 Reeular Meetine Aspen City Council Aueust 9.2010 Mayor Ireland asked why the city does not use real time gauges and there might be more accurate readings with automatic gauges. Overeynder noted on Maroon creek, staff is measuring at low conditions, how much water is being released; peak flow is not being measured. Overeynder said the issue is how to measure the peak flow so that information is readily available. Overeynder noted the city's portfolio is 34% wind energy, which is the highest of any municipally operated utility. The city would have to purchase twice as many wind turbines as that energy has to be used when it is generated; wind energy cannot be stored. Overeynder reminded Council thy city has a franchise agreement with Holy Cross that defines the boundaries the city can serve. The exception is that they city may serve its own customers and the city plans to use that exception to the maximum extent and serve those because of the discrepancies between the city's energy mix and that of Holy Cross, to reduce the carbon footprint by changing the energy sources. Betsy Starodoj, Sneaky Lane, said she is concerned for stream health, the impact on neighbors, the monitoring procedures and the consequences of non - compliance. Ms. Starodoj said she heard staff state the cfs can be taken down to zero and there is no employee mitigation because who would want to live near an energy center. Ms. Starodoj noted this would be the first industrial plant in Aspen and she is concerned about industrial noise, about unintended consequences and the questions that have not been answered. Ms. Starodoj said staff memo states the decibel reading at the building will be 60 decibels and the allowable in residential zones is 50 to 55 decibels. Ms. Starodoj said she is concerned about the elusive stream standards in the ordinance and the guidelines for stream health should be stated in the ordinance and not developed later. Ms. Starodoj said she is concerned about self - monitoring and about applying for an exemption from FERC. Ms. Starodoj said there should be a 12 month stream study on Castle Creek and the city should apply for a proper FERC license. This issue is important and requires more clarification. Nathan Rutledge, CORE, noted across the world people are trying to figure out how to provide clean, affordable power and Aspen is doing it. Aspen has kept competitive pricing in electricity. Rutledge said this is distributed local energy almost distributed on site and the carbon emissions will be reduced by 13 %. Michael Lipkin noted this process has been surprising. Lipkin pointed out that no one voted for dewatering Castle Creek. Lipkin said he would like to be in favor of this project and would like a stream standard that maintains 100% of the river and riparian zone 100% of the time. Lipkin stated that is doable within the community objectives. Lipkin stated last week the stream was measured at 59 cfs and staff has talked about reducing it to 13.3 cfs, about 25% of what is in Castle Creek today, 6 months of the year. Mayor Ireland noted the project cannot take more than 25 cfs at any one time. Lipkin brought a photo showing 58 cfs in the river today. People will be viewing 13.3 cfs for 6 months of the year, which is what the river will look like in the winter. Lipkin said he is excited about the project and would like to know this is the best way to spend $10 million; this is forward looking and efficient for energy. Lipkin said he would like to know the appropriate level of the stream and the balance between being green and preserving Castle Creek. 1H Regular Meedne Aspen City Council August 9.2010 Connie Harvey said she feels this is a piecemeal project; the pipe has already been installed in advance of other parts of the project and the monitoring does not happen until after everything is built. This is a major project of concern to anyone who likes streams and the wetlands. Ms. Harvey said this project deserves a full EIS as our streams should be sacrosanct. Mayor Ireland closed the public hearing Mayor Ireland agreed there should be a base line established for stream health and it should be established over a period of time before construction begins. Mayor Ireland said the city needs to have real time gauging. Mayor Ireland said he would like to know about fish screens and how they work. Mayor Ireland said he is concerned about the health of the wetlands and the city needs to be sure the wetlands are not diminished by a reduced stream flow. Mayor Ireland said he wants to know how the stream flows in Maroon Creek are affected by this. Mayor Ireland said he would like the return on investment recalculated so that Council knows what it is over the life cycle of the project to include the many years of free energy generation. Mayor Ireland stated he is concerned why an upstream property owner is concerned about a project 13 miles away. Mayor Ireland said he would like to publish the dates and times of the public meetings held on this project. The city needs to be certain this process was good. Mayor Ireland said he does not want to put the fate of Aspen's energy production in the hands of the federal government, whose policy is tilted against renewable energy. Mayor Ireland said the election on this issue was legitimate. Mayor Ireland said the argument that no one will notice the effect of this energy plant is moral abdication. Mayor Ireland said Aspen has an obligation to do what they can to reduce energy. Mayor Ireland said the price of coal is increasing for the next 3 to 5 years, which means the city will save more money on this hydroelectric plant. Mayor Ireland said Aspen made a mistake when they closed the original power plant in 1958 and went to purchasing coal. Mayor Ireland said people have purchased their property after there was a power plant in this location and which started producing power in 1893. Mayor Ireland said one has to look at the cfs in November in order to do a comparison; in November it is not 55 cfs. Mayor Ireland said he is not ready to proceed on this project as too many questions have been raised, like base line conditions, impacts on the stream, ability to gauge the stream by the public. Mayor Ireland said he does not feel the project should be eliminated without looking at positive and negative impacts. Mayor Ireland pointed out some water was lost in Hunter Creek and the guarantee is 4 cfs. Councilman Romero concurred he is not ready to vote . on this project. Councilman Romero said he, too, would like more and reliable data for the base line to help inform and shape the monitoring plan. Councilman Romero said the city talks about how the environment is number 1; this is two pieces of those environmental efforts — creation of renewable energy and preservation and celebration of healthy streams. Councilman Romero said there has to be a place where these can be optimized and balanced and not 19 Reeular Meetine Aspen City Council Aueust 9, 2010 seen as competing. Councilman Romero said the pursuit of renewable energy will not come at the expense of one of the most community's precious assets. Councilman Romero said the city has an existing hydropower plant on Maroon Creek and the data on that operation is not readily apparent to the public. Councilman Romero said he would like more information about the economics of the project stressing that the environmental impacts outweigh the economics. Councilman Romero said he does not have a level of confidence to move forward at this moment. Councilman Romero said the Council has applied the principle of protection of impacts in neighborhoods. Councilman Romero said the area around the project could use some attention to make sure the city is naming a tidy operation. Councilman Torre said the breadth of the public commenting says a lot about the project and about love for Aspen. Councilman Torre agreed more baseline work is necessary. Councilman Tone said he would like to know the duration of 13.3 cfs and what that would look like. Councilman Torre said he would like to know about a month by month report and snapshot of the creek. Councilman Torre said he would like to discuss this from a stream flow protection rather than a bare minimum in the stream. Councilman Torre said he would like to know more about noise generation, vibration generation; the presentation did not give the greatest assurance that there is complete technical understanding of what the building needs to do. Councilman Torre requested more explanation about the minimum on the building, why a visitor room is important and why this is being used as an educational tool. Councilman Torre said he would more information about adopting a 15 cfs stream flow instead of 13.3. Councilman Torre asked if there is a possibility to use more solar panels to create electricity and to protect in stream flows. Councilman Skadron stated his threshold question is whether there are adequate protection in place sufficient to insure the stream's health, 100% healthy stream 100% of the time. Councilman Skadron requested comments at the next hearing on expert's analysis versus layperson's observations. Councilman Skadron asked if the ordinance can be strengthened by adding clear guidelines for stream health. Councilman Skadron asked the difference between an energy center and a power plant. Overeynder answered this was intended to be a energy center as well as a location to demonstrate renewable energy of different types. Councilman Johnson said the community is proud of what has been done to protect the environment and the city should hold themselves to a higher standard both on creating energy and on taking a leadership position to make sure the stream is protected. Councilman Johnson said he would like financials on what happens if the hydropower plant is turned off and how that would affect the budget. Councilman Johnson said real time gauges are threshold for him to have real time monitoring of the stream at all times. Councilman Johnson said noise mitigation is important. Councilman Johnson asked the decibel reading from the river itself. Councilman Johnson said he would like a better understanding of what 13.3 cfs looks like. Mayor Ireland stated he is concerned about having manual control of the intake valve. Mayor Ireland said the issue of whether this 20 Reeular Meetine Aspen City Council Aueust 9, 2010 facility generates employees or not needs to be addressed in the city's affordable housing plan. Mayor Ireland said he is concerned about increasing the minimum stream flow without adverse consequences and without CWCB behind the city. Councilman Romero moved to continue Ordinance #15, Series of 2010, to September 13; seconded by Councilman Johnson. All in favor, motion carved. ORDINANCE #19, SERIES OF 2010 — Charter Amendment Defining Publication Mayor Ireland opened the public hearing Councilman Torre said he would like to put full text on the city's website and publish the ordinance by title. Bob Nix said he supports this Charter Amendment if before the election Council passes an ordinance amending the municipal code to state the ordinances will be published by title. Nix said the publication could be taken out of the Charter. Mayor Ireland closed the public hearing. Councilman Romero said the full text of proposed ordinances will be put on the city's website and will look at the municipal code where the city will publish proposed ordinances by title. Councilman Johnson said it should be made clear to the public that if they do not have internet, they can get copies of the ordinances at city hall. Councilman Torre moved to adopt Ordinance #19, Series of 2010, on second reading; seconded by Councilman Romero. Roll call vote; Skadron, yes; Romero, yes; Torre, yes; Johnson, yes; Mayor Ireland, yes. Motion carried. RESOLUTION #64, SERIES OF 2010 — Extending Given Institute Ordinance #48 Negotiation Mayor Ireland moved to approve Resolution #64, Series of 2010; seconded by Councilman Torre. All in favor, motion carried. RESOLUTION #58, SERIES OF 2010 — Settlement Agreement Changes Mayor Ireland moved to approve Resolution #58, Series of 2010; seconded by Councilman Romero. Councilman Torre said he feels the Aspen Art Museum has a lot of work to do on the architecture and the operational plans. Councilman Torre said he would like Council to be apprised as much as possible about anything going on with this project. Heidi Zuckerman Jacobson told Council she would be willing to give them periodic updates as it is a significant and important project and the public would be kept apprised of the process,too. All in favor with the exception of Councilman Skadron, motion carried. 21 Sara Adams From: Jennifer Phelan Sent: Friday, September 03, 2010 10:29 AM l To: Sara Adams Subject: FW: Hydro Comments For the record. Thanks Jennifer Phelan, AICP Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.aspenpitkin.com - - - -- Original Message---- - From: Ed Zasacky [mailto:edzasacky @usa.net] Sent: Friday, September 03, 2010 10:26 AM To: Jennifer Phelan Cc: cmharve @gmail.com; maureen @insearch.com Subject: Hydro Comments Hi Jennifer: I just saw an article that talked about the fact that 10% of all residential electricity used is phantom load. Electricity used by TV's, toasters, microwaves, etc. when not in use but plugged in. At our house we use power strips and power them down when not in use and most of our appliances are plugged in this way (refrigerator not). The article stated that up to 40 devices drawing power were common in most homes. 10% exceeds what the Hydro plant is going to generate. How painful is it to eliminate power useage that people don't even know about ?? Not painful at all. What a shameful waste. And to potentially ruin a beautiful river because we are too lazy and ignorant to eliminate such a simple thing ?? Give me strength! This is where smart meters and software developed by a number of US companies and in use all over the world but here, come into play. IF you could get everyone to use power strips that would also do it, but I see most people as too lazy to use those and it is difficult to add a,power strip to your oven for example. Smart devices do it for them. We need to pick the low hanging fruit first. It's right there in front of us. Please pass this on to the appropriate party to go into the record on the Hydro proposal! Thanks Ed Ed Zasacky Morris and Fyrwald Sotheby's International Realty 415 East Hyman Avenue Aspen, CO 81611 970 - 379 -2811 Cell 970 - 429 -3778 Direct 970 - 925 -6060 Office 970 - 925 -5258 Home 970 - 920 -6890 Fax EdZasacky(@usa.net 1 Sara Adams From: Jennifer Phelan Sent: Wednesday, August 18, 2010 10:59 AM To: Sara Adams Subject: FW: RE: Hydro Plant Jennifer Phelan, AICP Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.aspenpitkin.com - - - -- Original Message---- - From: Ed Zasacky [mailto:edzasacky @usa.net] Sent: Wednesday, August 18, 2010 10:51 AM To: Jennifer Phelan Subject: RE: RE: Hydro Plant Hi Jennifer: I had one other thought on ways to reduce consumption and take away the need for the 8% Hydro. Just as TOM (transit demand management) has reduced the need to build a parking garage and managed cars on the road, EDM (electricity demand management) could do the same with power. The overall rates, and I understand the City is penalizing heavy users with higher rates, are too low. In Europe where energy costs are higher they are way more efficient by neccessity. We have had cheap power and energy for too long and we are fat and lazy in that area. If the rates were inreased so that people might think twice about leaving a light on all day long when they aren't there or whatever, then consumption would come down. The extra money could be used to attack some of the other things I mentioned like retrofitting cold roofs thereby retiring heat tapes, triple pane windows, extra insulation, a smart grid, etc. Either completely pay for them or matching grants or some combination thereof. Please add this to my comments on the Hydro project. Thanks Ed Ed Zasacky Morris and Fyrwald Sotheby's International Realty 415 East Hyman Avenue Aspen, CO 81611 970 - 379 -2811 Cell 970 - 429 -3778 Direct 970 - 925 -6060 Office 970 - 925 -5258 Home 970 - 920 -6890 Fax EdZasacky @usa.net www.AspenSkiHomes.com Sara Adams From: Jennifer Phelan Sent: Tuesday, August 17, 2010 11:40 AM To: Sara Adams Subject: FW: RE: Hydro Plant Hi Sara: Please provide these comments from Ed Zasacky as part of the next staff memo. Thanks. Jennifer Phelan, AICP Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.aspenpitkin.com - - - -- Original Message---- - From: Ed Zasacky [mailto:edzasacky @usa.netj Sent: Tuesday, August 17, 2010 10:52 AM To: Jennifer Phelan Subject: Fwd: RE: Hydro Plant Hi Jennifer: Would you please add these comments as my comments on the Hydro Plant and see that the Council members get them? Thanks Ed Ed Zasacky Morris and Fyrwald Sotheby's International Realty 415 East Hyman Avenue Aspen, CO 81611 970 - 379 -2811 Cell 970 - 429 -3778 Direct 970 - 925 -6060 Office 970 - 925 -5258 Home 970 - 920 -6890 Fax EdZasacky @usa.net www.AspenSkiHomes.com - - - - -- Original Message - - - - -- Received: Tue, 10 Aug 2010 11:39:41 AM MST From: "Ed Zasacky" <edzasacky @usa.net> To: "Jennifer Phelan" < Jennifer .Phelan @ci.aspen.co.us>, "Jennifer Phelan" <Jennifer .Phelan @ci.aspen.co.us> Subject: RE: Hydro Plant Hi Jennifer: I came home after my family obligations and saw that the meeting was still on. I caught the last part of it. There were a couple of issues that didn't get expressed correctly 1 I felt. One was that 12 cfs seemed to be considered minimum stream flow adequate for any stream. I doubt that is so. It might be adequate for a stream with a width of 5 to 10 feet but Castle Creek is probably 20 to 30 feet wide in some areas and that flow will be distibuted over a wider area and thus be less deep and the margins will get dewatered. IF that causes insect habitat loss because of freezing or exposure to air then it translates all the way down the food chain. There was no discussion of SAVING that 8% or so in energy useage vs. building the plant and creating it. Amory Lovins proposed to the Denver Water Board many years ago that it was more effective and less damaging by far to give everyone in Denver low flow shower heads than to build a new dam. I have written to various City officials over the years about additional areas of energy savings that we could implement. Some of these are: Modifying the building code to have super insulated roofs and increasing the wall R- values to something like R -30 with the roofs being at least double that. Retrofitting can be accomplished. Europe has triple pane high tech windows and doors. They have extensive use of solar hot water heaters with far less sun than us. You hardly see a solar collector here and we get something like 300 sunny days a year and more than Honolulu where you see them everywhere. Proper roof design with cold -roof construction can eliminate the need for heat tapes which are energy hogs and all over town. My house has a cold roof and I have none. That could be in the code. Digital controls can be mandated for all the snowmelt systems here. Boulder is installing Smart Meters as the beginning of a Smart Grid that will allow them to reduce energy useage by eliminating phantom loads, timing loading better, and educating consumers as to times when energy is more expensive. These alone can save more than this project will generate with no impacts on Castle Creek. Look them up on the net. Other places are doing it, we are left behind and I can't get anyone to think about any of this. Do lights have to fully on in houses after 3:00 AM around here. These are just some of the things that can be done. IT is far better to save that ton of coal, or barrel of oil then to produce them. It's called negawatts. Same is true for the hydro plant. Lots of impacts for very little power, and I will bet you any amount of time or money that we could save far more than this plant is going to produce. I would rather save it AND the fish. Maybe you can get this across as it has fallen on deaf ears in the City bureacracy. I think you appreciate Castle Creek if anyone does, and this is something where you could have a big impact. Thanks Ed Ed Zasacky Morris and Fyrwald Sotheby's International Realty 415 East Hyman Avenue Aspen, CO 81611 970 - 379 -2811 Cell 970 - 429 -3778 Direct 970 - 925 -6060 Office 970 - 925 -5258 Home 970 - 920 -6890 Fax EdZasacky@usa.net www.AspenSkiHomes.com - - - - -- Original Message - - - - -- Received: Mon, 09 Aug 2010 03:10:33 PM MST From: "Jennifer Phelan" < Jennifer.Phelan @ci.aspen.co.us> To: "Ed Zasacky" <edzasacky @usa.net> 2 Subject: RE: Hydro Plant Hi Ed: Your email will be incorporated into the public record on this application and presented to city council. Best regards, Jennifer Jennifer Phelan, AICP Deputy Director Community Development Department City of Aspen 130 S. Galena Street Aspen, CO 81611 PH: 970.429.2759 FAX: 970.920.5439 www.aspenpitkin.com - - - -- Original Message---- - From: Ed Zasacky [mailto:edzasacky @usa.net] Sent: Monday, August 09, 2010 10:25 AM To: Jennifer Phelan Subject: Hydro Plant HI Jennifer: I am concerned about Castle Creek and the effect this hydro project will have on the environment. It was voted on BEFORE any of the impacts were fully known. It strikes me as coincidental at best that the paid consultant for the City came back and said 13.3 CFS was a good level. Not 13.4 or 13.5 ?? Awfully close to the 12 CFS that the City initially proposed with no science ?? He does go on to say that there will be some level of damage maybe 10 %. That is a concern. I'm not sure whether that is acceptable or not. Is that the straw that breaks the camels back or not. IS it OK in the name of being GREEN to not be green and sacrifice something to some unknown degree in Aspen CO.? There isn't a great history of power generation and the effects on the environment in this Country. Did the Canary just die? I occasionally fish that section of river (catch and release) and the fish population is truly gorgeous and self sustaining in this world of whirling disease and destruction of Rainbows elsewhere. I would hate to see them wiped out. What ongoing monitoring with teeth is there. If this was a private group trying to do something that harmed 10% of a section of Castle Creek they would be tarred and feathered. The Aspen Club has to monitor traffic for years and adjust something if it increases. Shouldn't the public sector be treated the same (except for the feathers)? Finally, I see that the Millionaire Lode is being offered as replacement property. Weren't there two parts to the Charter requiring not only that, but also a vote of the people to allow disposal of Open Space ?? OR did I miss that and that vote actually happened? Finally if there ever was a project that deserved a full examination like an EIS this is it. A private guy would surely have to do it. The City should treat itself the same and stand up and do one. That would give me a greater comfort level. Thanks Ed Ed Zasacky Morris and Fyrwald Sotheby's International Realty 3 415 East Hyman Avenue Aspen, CO 81611 970 - 379 -2811 Cell 970 - 429 -3778 Direct 970- 925 -6060 Office 970 - 925 -5258 Home 970 - 920 -6890 Fax EdZasacky @usa.net www.AspenSkiHomes.com Email secured by Check Point Email secured by Check Point 4 September 8, 2010 From: Lucy R Iiibberd 327 South 7 Street Aspen, Colorado 81611 To Mr.Mick Ireland and Members Aspen City Council Dear Sir: I am writing Re: the Pipeline construction and the city's plans for the construction of the Hydro- Electric Plant in Castle Creek. I believe that there are a number of important issues that should be addressed by the Colorado Water Court before the City proceeds with a large diversion of the water from Castle Creek Specifically: 1. Has the city water been "in continual use or has it been abandoned? 2. If The Point of Diversion is moved does that action require approval from the water court? 3. What If, because of the city's action, the Stream flow becomes so low that the other ditch owners are deprived of their water because the steam is too low to enter their head -gate . Is this permitted without approval of the water court? 4. Is if necessary for the Maroon Creek water to return to Maroon Creek? If the water is diverted and not returned to the stream of origin does that action require permission from the water Court? 5.Does the City Right include a "Right to Impound " ?. Can you divert the water and fill the reservoir without approval from the Water Court? Please ask Cindy Covell to confirm that you do not need to file an application with the water court and ask for a decree, before the diversion is made. Normally such a large alteration to an existing stream would require permission from the water court and the other ditch share owners would be notified. Thank You Page 8, ASPEN DAILY NEWS, Friday, September 3, 2010 U AV IL Ar IL kJAM A wdd mountain stream is 'a rare and beautiful thing. Artists know it, as do hotogmphers, fishermen, kayakers, and rafters. Campers, hikers and wildlife overs know it too, and so do realtors, beer compa- nies and purveyors of bottled water. Advertis- ers and travel companies know it, and images of that beautiful wild water fill the pages of glossy magazines and brighten the screens of °- television sets to sell everything from upscale Col resorts to, strangely enough, jewelry, clothing, HAI even shiny automobiles, Colorado's Rocky Mountains capture east- bound snow and rain, home on prevailing winds and breezes. That's why the Western Slope is not as and as the Eastern Slope. That's what brings us tumbling waterfalls and sparkling rivulets burst- ing from scree slopes and boulder fields to percolate through tundra teeming with wildflowers on the way to valleys below. Before for trappers nearly wiped them out, great numbers of beavers were the architects of ponds that maintained the streams and kept wooded glades and mountain meadows lush, and home to millions of na- tive creatures from tiny insects to hundreds of species of birds. Wildlife abounded, from the tiniest shrews to the most majestic bison. Those years are gone, though designated wilderness still protects a remnant of what used to be. Aspen still has a few streams and rivers of amazing beauty, though they've all endured diversions fm domestic and commer- cial uses. The thirsty Eastern Slope has tapped the upper reaches ofthe Roaring Fork, so it no longer roars the way it used to, and Hunter Creek is much diminished. Ma- roon, Castle and Snowmass creeks all give up water for agriculture, lawns, golf courses and snowmaking. On Sept. 13, Aspen City Council may vote to change the zoning of the old power plant property on Castle Creek from residential to industrial. That's the first step to a major transformation of Maroon and Castle creeks, this one in the name of renewable energy. A brand new hydroplant, to be called the "Aspen Energy Center" would be built next to the old one. Water would be diverted from both Castle and Maroon creeks; piped into Thomas Reservoir near Doolittle Drive, funneled through the hydroplant turbines, and finally dumped into lower Castle Creek not in above its confluence with the Roaring Fork That's called a "non- consumptive use" because most of the water eventually reaches the Rowing Fork Meanwhile, both Castle and Maroon creeks lose a ma- jority of their water along miles of thew length through most of the year. Maroon Creek never gets its water back at all, while Castle Creek gets it back after miles of dewatering. The exceptions to that are times, usually in winter, when the water flows already are at or below the de- creed minimum stream flows, which are minimal in- deed. When Colorado water laws were first written, instream flows were not regarded as a "beneficial use," and enjoyed no legal protection. The result was that some streams were completely dewatered, leaving be- hind only a dry creek bed. An example in our valley is East Snowmass Creek, which has been completely dried up by Town of Snowmass diversions. Snowmass Creeknearly suffered the same fate. It has taken many long years of work and negotiations, and even a court battle, led by the Snowmass- Capitol Creek Caucus to reach an accommodation with the Town of renewable energy Snowmass and the Aspen Skiing Co. that al- lows the continued existence of Snowmass Creek as a viable stream. The town wanted the water for municipal use, and the SIdCo want- ed it for snowmaking. Even though Snowmass Creek had a decreed minimum streamflow, it was only ajunior right, and anyone with a big enough senior right could legally divert all the water. That was the declared intention of the NIE Town of Snowmass Water Department, and VEY certainly would have happened without the energy, commitment and financial contribu- tions of a group of concerned citizens, Just this week a settlement agreement is being signed at last that includes the building of a big new reservoir to cushion the demand and save Snowmass Creek from that sad fate. Returning to the fate of Castle and Maroon creeks, if the hydroplant is built and used as it is now designed, these creeks will be radically transformed. Associated wetlands, protected for so many years, will dry up and die. To keep both streams healthy and an operating hy- dro plant would require using the plant only when the streams can take the added diversions — essentially during late spring and early summer, when snowmelt flows are high. Of course, cuiting back on diversions would hurt the already shaky economics of the hydropower plant, and make it seem a poor investment. As a financial invest- ment, it's already questionable, and certainly if the real goal is saving energy there are better and cheaper ways to do it. Cutting down on waste and improving effi- ciency offer a much better payback. Another concern that's been mentioned is fear that the streams could fall victim to a water grab by outside interests. I looked into that idea, and became convinced that both legal and physical constraints make that high- ly impractical and certainly not a near-term threat. - What would help Castle and Maroon creeks the most is a really serious biological analysis by aquatic sci- entists who are not on the payroll of companies in the business of diverting water. With the right public sup- port and enough time and energy, it should be possible to adjust the decreed minimum stream flows to levels that really do meet the needs of their aquatic ecosys- tems. The baseline study should be done before, not. after, a decision on a hydropower plant is made. If we are to do the best possible job of protecting these beautiful treasured streams, we need to look very carefully at the whole system and the big picture. It's way too soon to claim that this has been done. There's been very little public discussion of the plan and conse- quences. A 2007 city vote for reinstating a hydroplant made no mention at all of the effects on the creeks. County voters were never informed or allowed to vote, though the creeks are manly in the county. The Fed- eral Energy Regulatory Commission'(FERC) allowed the project to begin, based on a claim by the city that there was an emergency; a "health and safety issue" that — excuse me — simply does not hold water! Anyone who likes these streams in a natural condi- tion,which I hope includes city council, should be able to agree that they must be protected. If that becomes a goal for all of us, the next step is to analyze and think through our best course of action. Doing things right is worm whatever extra time it takes. Connie Harvey's home uses mostly solar power. Her e -mail is cmharve @gmail.com. A watery downside to CI -f0 /o THE WESTERN RIVERS INSTITUTE September 10, 2010 Mayor Mick Ireland Aspen City Council 130 Galena St. Aspen, CO 81611 PO Box 1029 209 Holland Thompson Drive Carbondale, CO 81623 (970) 376-1918 sag le river0sopris. n of www.wesfernriveninsfifufe.ora RE: Aspen Energy Center /Castle Creek Hydroelectric project Dear Mayor Ireland and City Council Members, I am writing to re- iterate points and comments I have made about the proposed hydroelectric facility on Castle Creek and its potential impacts to both Castle and Maroon Creeks. I will not repeat what I have stated previously, both in writing and oral testimony. I do want to emphasize one point however, and that is that the minimum stream flow is just that, a mini- mum. It will no more keep a stream vigorous and healthy than a starvation diet will for a person. Streams need a range of flows to maintain health, a range of natural variability. This is well documented in the scientific literature. One of the primary studies states "Hydrologic varia- tion plays a major role in structuring the biotic diversity within river ecosystems as it controls key habitat conditions within the river channel, the floodplain, and the hyporheic (stream in- fluenced ground water) zones." (Brian D. Richter, et al, How Much Water Does A River Need. Rivers and streams need this variable flow, from the high spring flows of runoff to the low flows of winter. What we really need to know is the optimal range of variability for both these streams below the diversion points. Low flows can be maintained for a while, but not too long. How long depends on the stream character and the overall health or ecologic condition of the stream. Healthy streams will weather low flows better than stressed and degraded streams that al- ready suffer from de- watering by diversions. A good analogy would be watering a garden with a hose. I can plant seeds and then proceed to give a bare minimum of water from the hose, a minimum that will make the ground look wet and well watered, even though that may not be the case. Looks can be deceiving. If not enough water is getting to the seeds few will germinate. Those that do germinate will suffer stunted and slow growth. Fewer yet will flower or bear fruit. The ground looks wet, but not enough is reaching the unseen roots where it counts. It is imperative that the City writes strong stream protection measures into the ordinance that approves this project. The proposed monitoring plan as well as contingency plans for dry years need to be codified now. While the City staff has made many assurances that the health of the streams will be protected, it must be put it in writing as part of the approval. City staff and Councils are transitory by our democratic process. Future Councils and staff could renege on verbal assurances made today. Knowing the range of flows for providing optimal stream conditions in both Castle and Maroon Creeks is imperative, and needs to be learned now while, we have the chance, before we get to a point of no return on this project. The City needs to ensure that stream health has priority over the hydropower plant. We hu- mans are far more flexible in our abilities to adapt, do without or modify our energy sources when water shortages occur. What becomes an inconvenience for us can become a matter of life or death for the stream. In times of shortage the health of the streams must come first, based on optimal flow regimes and not just the minimum, flat line flow. This must be made clear in the ordinance and approval being voted on. As I stated earlier, if a hydro project can't be done right in Aspen its likely not to be done well anywhere else. It must be done right, or not at all. You and the City of Aspen could set a remarkable precedent. If this project is built it will be one of the first of its kind and will be emulated all across Colorado and the US. If you fail to set this precedent with stream health as one of the overarching concerns than we will simply be back to hydro as usual. We will simply be continuing the historical litany of destroyed and degraded rivers in the name of questionable progress. That isn't green, nor is it a legacy Aspen will be proud of. Sincerely, Ken Neubecker, Director The Western Rivers Institute (also Past President of Colorado Trout Unlimited) Page 2 Some scientific literature that should be consulted: How Much Water Does a River Need ?; Richter, et al, The Nature Conservancy, 1997 Defining and Measuring River Health; Karr, Freshwater Biology 1999 The Ecological limits of hydrologic alteration (ELOHA): a new framework for developing regional environmental flow standards; Poff, et al, Freshwater Biology 2009 The Forgotten Infrastructure: Safeguarding Freshwater Ecosystems; Postel, Sandra, Journal of International Affairs, Spring Summer 2008 Ecologically Sustainable Water Management: Managing River Flows for Ecological Integ- rity; Richter, et al, Ecological Applications 13(1) 2003 A Collaborative and Adaptive Process for Developing Environmental Flow Recommenda- tions; Richter, et al, River Research and Applications, 2006 A Framework for Ecologically Sustainable Water Management; Richter, et al, Hydro Re- view, August 2005 Page 3 KIT GrOLDSBURY August 10, 2010 City Council City of Aspen Aspen, Colorado 81611 To Whom It May Concern I have owned property on Sneaky Lane for over 25 years. We have so many wonderful memories of the beautiful Castle Creek, and all of nature surrounding it. We are saddened and angered about the prospect of this beautiful asset being ruined because of a severely decreased flow of water due to a hydroelectric plant, whose benefit is very questionable. To my knowledge there has been no study done that definitively determines the results of such a decrease in the flow. There is the distinct possibility that the flora and fauna will be forever altered, if not destroyed completely. This is totally unacceptable, especially for something whose overall benefits are unknown. If the Castle Creek /Maroon Creek areas are adversely affected by the decreased flow of water, it will directly affect property values all along the creeks. This will be devastating to the homeowners in the area, as well as businesses that are affected. I request that Aspen's City Council delay a decision on this rezoning application and subdivision, PUD and Growth Management reviews, and request that the City undertake either a comprehensive environmental impact study, or environmental assessment to determine the ramifications of removing 25 cfs from Castle Creek and 27 cfs from Maroon Creek. ThIGI u very much. Kit 1bur P.O. Box 460567 • SAN ANToNto, nXAs 78246 -0567 • NONE: (210) 930 -1251 - Fax: (210) 930 -2482 Attamvya at La,l 4vww waterlew. coil 7 Paui 1.. Nom'" t ... t =,u {lwxer,mR l M r.0 kxlf. e 739 E. Durant Avenue Suite 240 Aspen, CO 81611 970.920.1028 970.925.6847 999 18th street 30dhFlom Denver, CC) 80202 i 303.893.9700 i 303.893J9C0 2 C. Camclback snits 700 Phoenix, AZ 85616 -. 48".921.4044 18 ( )ltl : :( , 7633 E. 63rd Place SUIte 300-18 Tulsa, OK 74133 1. 918459.4634 E 970.925.6847 September 10, 2010 Aspen City Council City Hall 130 S. Galena Street Aspen, CO 81611 RE: Castle Creek Hydroelectric Project (ourfile #99]A) Dear City Council members: We are writing to submit this letter into the record regarding the September 13, 2010 City Council meeting, and specifically the agenda item concerning the Castle Creek hydroelectric project. At the last meeting in August, Mayor Ireland and Torre raised a few concerns that we wish to address for the record. First, Mayor Ireland expressed particular concern that if the City does not move forward with constructing the plant, it will lose its hydropower water rights to Front Range entities seeking to appropriate water from Castle Creek and Maroon Creek. While the City may have legitimate reasons in favor of the project, we feel that this is not one of them. Under Colorado water law, it is legally impossible for Front Range entities to appropriate water that is already allocated to local western slope water rights. Colorado water rights operate under the priority system, which means that prior decreed rights (senior rights) are entitled to their full amount of water before later decreed rights (junior rights) are entitled to any water. Accordingly, if Aspen were to somehow lose its hydropower water right due to nonuse, that water would go to the next most senior water right in line on the stream, and then the next most senior right, and so on. There are literally hundreds, if not thousands, of decreed water rights on the Castle /Maroon Creek, Roaring Fork River, and Colorado River stream system that would have to be satisfied before the Front Range could appropriate any water. Furthermore, the City owns the next most senior rights in line on Castle Creek, and therefore the additional water would likely go to satisfy these water rights. In other words, the Front Range simply cannot leap ahead of all decreed water rights on the stream to take water belonging to those rights. Finally, the state recently admitted that there may be very little or no water left to develop under Colorado's Colorado River Compact apportionment. Therefore, it is extremely unlikely that a Front Range entity would commit billions of dollars toward a project in which it would have a very difficult time proving that there is water available for a new appropriation in an amount large enough to justify such an investment. a professional corporation I'A [ V I K ,1911 1.1-1;' KKO1 1 Aspen City Council Page 2 September 10, 2010 As for risk of loss of water rights, we note that the Colorado Division of Water Resources publishes a list of water rights every ten years in which it considers abandoned. The state published the most recent version of this list in July of this year, and did not include the City's hydropower water rights, and the state has never included the rights on the list. It therefore does not appear that the rights are at risk of abandonment by the state. At the last meeting, Mayor Ireland asked about the clients that my firm represents in this matter. I presented a list of approximately fourteen clients, several of whom are business entities. Mayor Ireland, and to a lesser extent Torre, focused exclusively on one client, Elk Mountain Lodge, LLC, speculating the Elk Mountain Lodge may have ulterior motives for being involved in this process, such as selling water to the Front Range. This allegation is unwarranted, incendiary, and simply unfair. If the project moves forward, no one questions that the City of Aspen will seriously alter the stream flow regime on Castle Creek. Elk Mountain Lodge owns several decreed water rights diverting from Castle Creek for small ponds, an irrigation ditch, and a well. Elk Mountain Lodge merely wishes to ensure that its water rights will not be injured by the City's alteration of stream flows, and being involved in the process is standard and prudent business practice. Next, we would like to mention an issue that has not been discussed to date, and that is the cumulative impacts of the project on both the Castle and Maroon Creek stream systems. If the City must divert more water from Maroon Creek to fuel the plant, this may take away from flows available to power the Maroon Creek plant. This is an issue that the City should look into and address, because the net effect could be less total hydropower generated than is currently assumed. Along these lines, the additional diversions from Maroon Creek are 100 percent depletive to the creek (return flows do not accrue to Maroon Creek), and yet there has been very little or no environmental assessment of Maroon Creek. We request that the City take into account cumulative environmental effects of the project, rather than effects to Castle Creek only. Finally, at the last meeting it appeared that the concept of protecting 100 percent of the environmental health of Castle and Maroon Creeks 100 percent of the time is something that City Council is committed to. In order to implement this concept, we suggest that City Council pass a resolution confirming the City's commitment to protect the environmental integrity of Castle and Maroon Creeks, to the extent Council moves forward with the project. (IIY(- ]I ?I(), 0.6 PAI MCK !t.1it 1 lit: l KROPt Aspen City Council Page 3 September 10, 2010 Thank you for your consideration of these matters. Very truly yours, PATRICK, MILLER & KROPF, P.C. A Professional Corporation By: 2j T U W Paul L. Noto noto &waterlaw. com PLN encl. cc: clients >",.nnl���.���x Dear Councilmen, September 9,2010 In 2005 the voters of Aspen supported a bond issue and committed to spend over $11 million on green energy. This is an extraordinary opportunity. The City of Aspen is planning to spend those funds on a hydroelectric facility that will significantly dewater and degrade Castle and Maroon Creeks. Aspen's greatest amenity is the natural splendor afforded by our unique and generous watersheds, rivers and riparian zones. That's why we're all here, that's why our guests come, it's the basis of our culture and it's the basis our economy. Our rivers are our lifeblood and their stewardship our greatest responsibility. That being said, 1 am increasingly convinced that Town Staffs conclusions are questionable, that the integrity of the Town's process is flawed, that this is not remotely "smart green," that this proposal is fiscally out- of-control, and that there is tremendous risk for Castle and Maroon Creeks. Risk for Castle and Maroon Creeks. At the end of July the water flow in Castle Creek was 58.9 CFS. Current plans anticipate lowering the water level in Castle Creek by 25 CFS most of the year to as low as 13.8 CFS at times. However that could lower a 2.5 mile stretch of Castle Creek in mid summer to 33.8 CFS (a 43% reduction from what we saw in Castle Creek in mid - summer) and would leave Castle Creek at a minimum stream flow of 13.8 CFS for at least 5 months in the fall and winter (75% less than the steam flow we saw in Castle Creek in mid summer). This simply doesn't seem to equate to a healthy, sustainable river. We are all committed to a sustainable and green future but first we must sustain our rivers. Man's dominion over nature, while often well intentioned, has been fraught with surprises and tremendous environmental costs. Town Staff Conclusions. Town Staff has predetermined that the City does not need an Environmental Impact Statement to dewater Castle and Maroon Creeks. An Environmental Impact Study would undoubtedly raise significant environmental issues and trade -offs will need to be analyzed. That's the purpose of an EIS. It would be unconscionable to avoid it. Who in Town Hall has made the decision that an EIS is unnecessary, what are their qualifications? Process. The ballot item that was put in front of the voters that approved the bond never mentioned dewatering a 2.5 -mile stretch of Castle Creek. It was a vote for green and sustainability. The current proposal has little to do with the bond issue that was approved. Even Councilman Torre stated at the last Council meeting that he didn't understand the issue when he voted back in 2005. Only 15.6% of the possible voters voted on the bond issue. While a significant majority of those voters supported the bond issue, they accounted for less than 10% of Aspen voters and the ballot item never mentioned dewatering a significant stretch of Castle Creek. This is hardly a mandate and the current proposal is far too important not to be fully understood and supported by a majority of the community. Neither democracy nor community thrive in the dark. Despite the fact that most of the impacted portions of Castle and Maroon Creeks are in the county, there has been no review process in the county. Recently we have heard speculation that preserving our water rights is a justification for proceeding with this project. This sounds a bit like if we don't trash our rivers, someone else will. If our water rights and rivers are truly in jeopardy, shouldn't that be our primary concern? Shouldn't we understand that issue first? Fiscal responsibility. The leadership of Aspen and the staff in Town Hall do many things extremely well. Their successes and commitment to our community cannot be questioned. However, in the area of fiscal investment and management some questionable decisions were made in recent years. With respect to this proposed project, we have heard from Town Staff that there will be annual savings of $500,000. We have also heard that the savings will be closer to $30,000. Which is it? Do we really have the in -house skills to fully understand the fiscal impacts? Costs are growing. Do projected costs include the vast amounts of staff time spent on this project in recent years? We hear there is a 25 -year payback. I've never heard of a responsible business venture that requires a 25 -year payback. And our environment doesn't have 25 years to solve our energy problems. We need an immediate bang for our buck - for our $11+ million investment. We need some independent, professional economic analysis of this proposal. This may well be the most expensive per kilowatt hydro project ever built. Smart Green. We have a bond issue that will ultimately cost this community in excess of $11 million. Hydro is probably a fine proposition for Castle and Maroon Creeks about 4 months a year - during spring and early summer runoff. However for the other 8 months, either the rivers will be significantly compromised or the hydro plant will operate at significantly diminished capacity. Given the vast change in our economic fortunes and the rapidly evolving technology and knowledge surrounding sustainable energy production and conservation, is this the best possible use of the proceeds of this bond? Our town engineering staff wears many hats and assumes many responsibilities, but they are simply not qualified to tell us the best way, the greenest way, the most environmentally sound, visionary way to maximize the value of this extraordinary opportunity. However, there are experts who could. Before we go any further shouldn't we consider all our options - especially options that will be more cost effective, have greater green impact, and won't severely compromising our rivers. This is an extraordinary amount of money and an extraordinary green opportunity, unfortuneately, this project isn't green, it certainly isn't smart green, this is trophy green. Plans that could alter our rivers and riparian zones must be developed with complete community understanding of the possible impacts and costs and with comprehensive, expert, peer review of all plans, implementation, and maintenance. Our rivers and riparian zones have been here for millions of years. I trust Council will not feel rushed to make a determination on their future. Only one standard is acceptable - maintain 100% of the health and viability of Castle and Maroon Creeks and their adjacent riparian zone 100% of the time. Anything less would be criminal. Thank you, Michael Lipkin Aspen The Mayor The City Council The City of Aspen Aspen, Colorado 81611 September 10, 2010 My wife and I have owned property in Aspen for over 26 years. Our present house, where we have been for some 20 years, is located at 750 Castle Creek Drive, above Castle Creek with our lot running into the Creek, across from the Meadows and the houses on Sneaky Lane.. From our property on our side of the creek all the way to the Roaring Fork there is an undisturbed wildlife area as few of the other lots extend or have access to this area. The area is pristine, full of wildlife, deer, fox, beaver, squirrel , raccoon and occasionally bear. Our part of the Creek itself has been assessed as a perfect riparian location and home for trout and our family and others often take advantage of the excellent fishing there. A large part of the value of the property is the access down our 128 steps to the creek. We are disturbed that the City is considering the erection of a hydroelectric plant that would potentially damage all of this. We join our neighbors across the creek, Kit Goldsbury and others, in asking that the Council delay a decision on this proposal and that a thorough and impartial environmental impact study be done. The removal of the water 2.5 miles above the Power Plant Road crossing, leaving those 2.5 miles with scant water, and then the returning of not only the water removed from Castle Creek but also a greater amount of water removed from Maroon Creek, after processing all this water immediately before the reentry through turbines thereby changing the temperature of the water, certainly demands the most careful study. This even more so as the rationale seems to be to save a quite small amount of money compared to the seemingly extravagant total cost of the project and to, hopefully, achieve only some small reduction in the perceived total use of energy for the city. Certainly the council knows well that the attraction of Aspen lies in the natural setting of the mountains and the various streams, creeks and rivers here. To risk injuring two of the major streams of the City and their adjacent wildlife areas without any more study of the benefits to be gained and the damage that may be done seems the height of folly. Yours very truly, Ann Hudson Edward Hudson R ARING F R CONSERVANCY Bringing People Togenxr W 1".. 0.1 Niven BOARD OF DIREC'I'OBS Diane Schwener Prrsid nt Stephen Elisperman Vice President Ramsey Kropf Secretary Gad Orrick Treasurer Andrew Light Carter Brooksher Ji in Light Rickl.ofaro Esecutivr Director l.oui.s Meyer Rick Nosey Ripens Council Liaison Larry Yaw PROGRAM STAFF Rick l,ofai o Fwwulive Director Claire Britt Office Manager Sharon Clarke Land & Water Conservation ,tipeeialis t Sarah Johnson Education Coordinator Tar, O'Keefe EdIwation Director Ed Pen egartx Development Director Chad Rudow Water Quality Coordinator September 9, 2010 Phil Overeynder City of Aspen Department of Public Works 130 South Galena Street Aspen, CO 81611 Re: Castle Creek Hydroelectric Proiect Dear Phil, Roaring Fork Conservancy (RFC) commends the City of Aspen for their public outreach efforts, transparency, and for working with Colorado Division of Wildlife to protect the aquatic environments of Castle and Maroon creeks. Based on new information regarding the project, we have the following additional comments. This is in response to public meetings and the following documents "Castle Creek Hydroelectric Plant Environmental Reporf' (Miller and Swaim, June 11, 2010); "Castle Creek Plan" (Colorado Department of Wildlife, July 22, 2010); and Memorandum from Bill Miller to Kendall Bakich, July 23, 2010. One concern is how will the potential effects of climate change on flows in Castle and Maroon creeks be addressed? The state recently completed a Final Draft Colorado Water Availability Study ( CRWAS). One conclusion of the study is that "higher elevations generally have less flow available" (table 2 executive summary). How might this influence future flows in Castle and Maroon creeks? Could this increase the length and frequency of time that Castle and Maroon creeks are at minimum flows? Might this increase competition in spawning areas? Additionally, the CRWAS analysis of climate change does not address the complicated question of how climate change will indirectly affect aquatic species and their flow needs. The historical streamflow used in the Miller and Swaim's analysis represents past climatic conditions. We suggest that provisions to take climate variability and change into account become part of the operational decision- making allowing the optimization of the goal of hydroelectricity while maintaining stream health. Secondly, how could the results of Miller and Swaim's quantification of stream flows be used in the statewide discussion of non - consumptive needs? The quantification of non - consumptive needs is an extremely difficult task. As discussed in the State of the Roaring Fork Watershed Report 2008 understanding and defining all non - consumptive uses, including environmental, recreational, and hydropower uses, requires evaluation of a broad set of hydrologic parameters influencing numerous biological and geomorphic processes. These processes include the magnitude, timing, and duration of flows, the rate of change in flows, and the frequency of flow events. Assessment of environmental flow needs is often hampered by spatially and temporally limited stream gage and modeled flow data, a lack of adequate ecological and geomorphic data, and a limited understanding of the specific relationships among biological and geomorphic processes and flows. For example, what are the relationships among sedimentation, flows, and fish and macroinvertebrates? Land P.O. Box 3349 Basalt, Colorado 81621 1970.927,1290 1 www.roaringfork.org use changes add another layer of complexity to any assessment of non - consumptive needs. Could an underestimation of the aquatic needs of Castle and Maroon creeks translate into an underestimation of aquatic needs for other streams in Western Colorado leading to the suggestion that more water is available for development. We would like the City to err on the side of overestimation because of this. Also, undoing environmental harm is usually more difficult that creating the damage in the first place. RFC supports the plan developed by Colorado Division of Wildlife with the sampling location clarification and additional macroinvertebrates and temperatures data collection suggested by Dr. Bill Miller. Additionally, we request more information on how these data will be analyzed, interpreted, and used to inform changes in management. We recommend that a scientifically- credible reasonably - specific adaptive management plan be formulated before the project is implemented. To allow accurate interpretation of these monitoring data and to provide transparent hydropower diversion operations we recommend installing a measuring device or stream gage and using these data in conjunction with real -time hydropower diversion data to be able to separate stream inflow and hydropower diversions. Ideally, this gage would be part of the CDWR or USGS stream gage network, allowing these data to be easily accessible on -line and used for other purposes. Hydropower operations are expected to have the greatest impact on winter flows, so it is important that the stream gage operate accurately in the winter. It is our understanding than a conduit exemption would be in perpetuity, which means there is no federal requirement to revisit this project. In the spirit of environmental leadership, we suggest that the City of Aspen formally require periodic re- examinations of this hydropower project to ensure that aquatic needs are met in perpetuity. C ely, Rick Lofaro, �e Executive Director Kathy Strickland From: Sally Spaulding Sent: Monday, September 13, 2010 9:36 AM To: Public_ Comment; Sara Adams; David Hornbacher Subject: FW: Hydro Plant I have not responded to this one but suspect many of his numbers are off. s Sally Spaulding, Community Relations Director City of Aspen 1 130 South Galena I Aspen, CO 1 81611 Voice: 970- 920 -5082 1 Fax: 970- 920 -5119 1 Web: www.aspenpitkin.com Follow the City of Aspen on Facebook or Twitter From: dick butera [mailto:dickbutera @sopris.net] Sent: Monday, September 13, 2010 9:15 AM To: Steve Skadron; Derek Johnson; Dwayne Romero; Torre Cc: Sally Spaulding Subject: FW: Hydro Plant From: dick butera [ mailto:dickbutera@sopris.net] Gentleman, please consider giving proper notice to the taxpayers of Aspen about the following information regarding the Hydro proposal; 1. Please tell the taxpayers that due to the delays in the project that income from the Hydro will not begin until at least 2012. The bonds were floated in 2007, therefore the debt service costs from then until 2012 must be added to the over -all cost of the project. Its approximately $1,400,000. (Phil said... "yes you are right dick - -I'm going to have to find that money somewhere ") 2. Please tell the taxpayers that the $300,000 saving projected per year from the Hydro does not begin until 2026. There is negative cash flow until then (including debt service) and the bond prospectus stated that the taxpayers were liable for shortages. 3. Please tell the taxpayers that the TOTAL cost of the project including interest is over $10 million dollars and now we must add the $1,400,00 as referred to in paragraph #1. 1 am told by Hydo experts that this will be the most expensive cost per kilowatt that they have ever seen from any source! 4. Please tell the taxpayers that the $2,300,000 pipe put in was not needed for safety purposes. First, there is an over the ground over- flow that comes out on Castle Creek road that has proven to adequate for many years, and secondly they only increased the size of the pipes that were there by 6 inches. This is insignifigant in times of emergency, which by the way the State has said was highly unlikely. Incidentally the pipe they replaced was in very good condition. 5. Please tell the taxpayers that the $300,000 savings from the hydro is based on perfect snow conditions and that the plant will only not operate 30 days per year because of low 1 water conditions. What happened to Dec, Jan. and Feb ? The taxpayers are responsible for any shortcomings in the cash savings! 6. Please tell the taxpayers that the water dept. justifies the fact that there is no positive cash flow until 2026 by saying that all those 50 years thereafter will be debt free and therefore make up the difference. Well, how many taxpayers believe that with all the trillions being spent on renewable science etc, that Hydro plants will be dinosaurs by 2026. 7. Please tell the taxpayers that the ONLY scientific study that has been done on the rivers in question, stated that Maroon Creek needed 23 CFS to maintain the healthy aquatic life that exists there today. NO scientific study has ever been done on Castle Creek. I could go on and on but this already too long and you might not read it. Please make sure that ALL the facts are made public and please remember ....... 2 wrongs do not make a right ... its never too late to stop this madness. Sincerely, Dick Butera Email secured by Check Point Pi September 12, 2010 DELIVERED BY HAND Aspen City Council City Hall Aspen CO 81611 Re: Castle Creek Hydro Dear Honorable Mayor Mick Ireland and City Council members: We respectfully suggest that Council table formal action on the proposed rezoning and consider the following path forward. New voices are emerging each day alarmed at potential collateral damage to Maroon and Castle Creek. A public process is needed to build a strong coalition in support of responsible renewable energy development that is in harmony with Aspen's equally long and celebrated history of protection of its natural heritage including its rivers and streams. We recommend that while Council pause in its further deliberations and decisions, a Citizen Path Forward be developed. We propose convening key stakeholder representatives, experts in the relevant disciplines and a veteran mediator with vast experience in water and energy matters. In this manner, proponents and opponents of the Castle Creek Hydro Plant can avoid divisive and counterproductive legal or political conflict and instead join together in a thoughtful, forward thinking manner to assure every concern is met and to help Aspen become a model to other communities. We would once again be leading by example as communities everywhere grapple with the economics, aesthetics and impacts of expanding hydro, solar, wind and biomass in order to reduce dependence on fossil fuels. Sincerely, Ruthie Brown 24 Ardmore Dr Aspen, CO 81611 Tim McFlynn 5959 Snowmass Creek Road Snowmass, CO 81654 Hydro - Electric Energy (A look into the future of renewable enCrgy by development of small hydro plants.) Upon my retirement in 1990, and for several years thereafter, I advocated the.. re- development of many small hydro - electric plants by the City of Aspen, not much has been accomplished, but the dream lives on.. Perhaps, the City will see the long term benefits of small hydro and pursue the several options that I have pointed out. A later day visionary will certainly pick up where I have left off in the advocacy and development of this clean energy source. To refresh the readers' memory let's go back to a letter I wrote in '95 concerning this topic. Dear Editor: - Aspen Times - February 26, 1995 Your article in the weekend edition "Hydro plants not likely to be built" was of interest to me, since I was involved with the operation of the original Castle Creek power house in the fifties. Since that time, I have been an advocate for the redevelopment of the hydro - electric potential in the Aspen area. As the former head of the Water Department of the City of Aspen, I had some involvement with the existing power -plant on Maroon Creek. At the time of it's inception, I stated in a memo, my reservations as to the conflict with water treatment operations. However, It was determined that the benefits of a hydro- electric plant outweighed the inconveniences that such a plant would create. In 1973, in order to preserve it's water rights on Maroon Creek, the City built a new pipe line into the treatment plant. Lack of funds delayed the replacement of the old 1892 crib -wall dam. on Maroon Creek, until the mid - eighties, when an arrangement was worked out with the Deane family that allowed a constriction access for a new dam. This was accomplished through a joint - venture agreement for the development of a power house log cabin on land owned by the Deane family. Unfortunately the design and selection of the turbine for peak operations was hot compatible with pipe line capacity in winter, because Maroon Creek is subject to variable ice and debris flows. In spite of these handicaps, I was able to operate the turbine at a limited output even when demands for treated water and snow making were paramount. This required innovation and persistence on my part gained from the many years of experience in rebuilding an antiquated water system and operating the early -day powerhouse under the Castle Creek bridge; which in its day was a tribute to the engineering skill of it's builders. Unfortunately, short-sited expediency in the early sixties on the part of the Aspen City Council determined that the power house turbines (at the old Castle Creek power house) should be scrapped and the building turned into a maintenance shop" (The rationale being; the overhead cranes would be useful to pick up machinery) "Like the D&RG tracks that were torn out below Aspen, the expediency of yesteryear has come to haunt us today. We cannot undo the mistakes of the past, but we can learn from past mistakes and consider the advise of those with experience under adverse conditions." In August of'91, I wrote an extensive memorandum to the Aspen Energy Committee, with copies for the Aspen City Council; wherein I identified and outlined in detail how sites could be developed. (I closed with the following comment:) " I hope this ¢ community will begin to plan for the future and have the vision to see beyond moments of self interest. Our big problem today is: we are ineffectual, due in part to a lack of continuity and experience. We are so bogged down in the process that we can not obtain results. Our local bureaucracy has grown exponentially, yet results are less than ever. What we need today are: more doer's with a shovel in their hand and less bureaucrats warming chairs. There's a new bumper sticker, "Bring back the Quiet Years ". In the "Quiet Years" Mayor Wagner personally cleaned the city ditches with a shovel. A good example of "hands -on" management. Perhaps a shovel is what is needed today, too!" Sincerely, Jim Markalunas S-L� Kathy Strickland From: Sally Spaulding Sent: Monday, September 13, 2010 3:52 PM To: Public Comment; Sara Adams; David Hornbacher; City_Council Subject: Fw: Aspen Hydoplant Proposal I have responded. From: Geoffrey Perrin < GPerrin @maralo.microsoftonline.com> To: Sally Spaulding Sent: Mon Sep 13 15:46:25 2010 Subject: Aspen Hydoplant Proposal Mayor Mick Ireland and Aspen City Council Members: I have had the privilege of enjoying Aspen's beauty for thirty five years. It is very alarming that a thorough and exhaustive study has not been performed to investigate the impact of the proposed hydroplant on Castle Creek and Maroon Creek. Lowering the water level of these creeks by 25 cfs and 27 cfs respectively threatens the long term health of these creeks along with the fragile ecosystem which they support. Moreover, a clear and detailed cost - benefit analysis demonstrating the facility's necessity should be published to inform the voters who approved the bond election. I strongly encourage that this entire project be rethought considering the will of the voters and impact on the environment. It is not too late to contemplate other alternatives. Very Truly Yours, Mary Ralph Lowe Kathy Strickland From: Sally Spaulding Sent: Monday, September 13, 2010 3:32 PM To: Public Comment; Sara Adams; David Hornbacher Subject: Fw: Hydroplant - Aspen Creek From: carol tadmor <caroltadmor @gmail.com> To: Sally Spaulding Cc: michael werner <MBWIEA @mac.com> Sent: Mon Sep 13 15:23:35 2010 Subject: Hydroplant - Aspen Creek Ms. Spaulding: The following email has been forwarded to all the members of the council on behalf of Michal and Dana Werner. I will also be forwarding a fax copy to your attention and would appreciate your assistance in getting it to the council members in case they were unable to observe the email prior to the meeting. I am drafting this on behalf of Michael and Dana Werner, owners of 501 Sneaky Lane, Aspen, Colorado. The following is from them. Please be advised that we fully adopt the argument and point of view expressed in the many letters and emails to you objecting to the council's approval of the hydroelectric plant and the construction of same at the meeting today. We specifically refer to the letters to you from Edward Hudson and Kit Goldsbury, and the guest editorial in the Aspen paper written by Tom Hirsth. We believe that the approval by the council for the construction of the plant at this time, without a full environmental study conducted by third parties pursuant to broad federal requirements, is an abuse of the council's power and unwarranted acquiescence to the staffs position without appropriate authority and full investigation. Saying much more would be redundant. We just hope council will exercise it's discretion and put off a final determination until all of the founded positions expressing opposition to the staff s position are fully vetted. Thank you very much for your consideration, Michael and Dana Werner mbwiea2mao.com Sent by: Carol Tadmor WG Group LLC 3960 Howard Hughes Parkway, Suite 700 Las Vegas, NV 89169 Office - 702/733 -6218 Fax - 702/733 -6415 Blanca Uzeta O'Leary 1500 Silver King Drive Aspen, Colorado 81611 Sunday, September 12, 2010 Dear Mayor Ireland and the entire Aspen City Council, I am writing today to encourage you to vote in favor of advancing the Castle Creek Hydro plant. I write in my role as a lawyer as well as a mother. As a lawyer, I am deeply concerned that if our City of Aspen fails to build this hydro plant, we will be giving up our Senior Water Rights on Castle Creek. We will then be in peril of once again having our Roaring Fork Valley water being sold and diverted to Denver and the Front Range. As a mother I am so proud of the City of Aspen's goal to become a 100% clean and renewable energy city. You know better than I that an additional hydro plant would be so beneficial in helping us meet that goal. Many of us in this valley, including each of you on this council, strive to set a good example for our children in demonstrating our commitment to curbing climate change. In a demonstration of global solidarity, many of us took our kids to the 350.org photo event on Aspen Mountain last year where we participated in a global effort to draw attention to climate change. It was a wonderful example of our Aspen heritage of sharing global concerns. Like many Aspen families, we have been taking inventory in our home to reduce our carbon footprint. We have made changes such as driving a hybrid car, recycling, using green household products, green light bulbs etc. We of course have a long ways to go -but we are trying. In November of 2007, this community already voted in favor of the bond for this hydro plant. Elections matter. Please honor that citizens' vote and vote Yes on the Castle Creek hydro plant. Respectfully, Blanca U. O'Leary Kathy Strickland From: Sally Spaulding Sent: Monday, September 13, 2010 3:15 PM To: City Public Comment; Sara Adams; David Hornbacher Subject: Fw: Hydro Power Proposal From: Timothy Marquand <timothymarquand @gmail.com> To: Sally Spaulding Cc: curlybgab @aol.com <curlybgab @aol.com> Sent: Mon Sep 13 15:00:29 2010 Subject: Hydro Power Proposal ---- - - - - -- Forwarded message ---- - - - - -- From: Timothy Marquand < timothymaMuand . gmail.com Date: Mon, Sep 13, 2010 at 4:47 PM Subject: Hydro Power Proposal To: sallysspauldinggci.aspen.co.us Cc: curlybgabna,aol.com Dear Members of the Aspen City Council, I have lived in Aspen since I was a boy in 1948 and have tried to remain open to "the changes" by reminding myself that unadulterated wilderness was all about me. Naturally the proposal to alter Castle and Maroon Creeks distresses me and I fear unintended consequences. Under the mantle of Manifest Destiny and the glories of the silver boom Aspen has had a remarkable history in the early acquisition of hydro - electric power for its mines and streetlamps. Today things are different. The pioneering spirit wears a greener mantle in its environmental concerns and impulses toward sustainability. Altering the wilderness we are trying to save, however, carries risks to the life of our streams as consequential as the arsenic in mine tailings. While the goals of the proposal are laudable the path raises questions. A full Environmental Impact Statement, however expensive, should be authorized instead of relying on "emergency conduit" evasions about a reservoir that threatened, at the time the state examined it, Freddie Fisher's favorite dump. Once a stream is altered it is highly unlikely that it's environment and wildlife can be restored by changing water levels back to normal. Although the comparison may be far - fetched, we can never turn Lake Powell back into the glories of Glen Canyon. The planners, with the best of intentions, never imagined a red landscape with bathtub rings and an accumulation of sludge and beer cans at the dam that would eventually render its hydroelectric purposes useless. Please ... let us take more time to consider this. Conservation and efficiency can accomplish much with fewer hot tubs, excessively illuminated castles, and perpetually burning antler chandeliers. Sincerely, I inro ititarquand, Old SII(MIIM< s Email secured by Check Point Hydro- Electric Energy (A look into the future of renewable endrgy by development of small hydro plants.) Upon my retirement in 1990, and for several years thereafter, I advocated the re- development of many small.hydro- electric plants by the City of Aspen, not much has been accomplished, but the dream lives on. Perhaps, the City will see the long term benefits of small hydro and pursue the several options that I have pointed out. A later day visionary will certainly pick up where I have left off in the advocacy and development of this clean energy source. To refresh the readers' memory let's go back to a letter I wrote in '95 concerning this topic. Dear Editor: - Aspen Times - February 26, 1995 Your article in the weekend edition "Hydro plants not likely to be built" was of interest to me, since I was involved with the operation of the original Castle Creek power house in the fifties. Since that time, I have been an advocate for the redevelopment of the hydro-electric potential in the Aspen area. As the former head of the Water Department of the City of Aspen, I had some involvement with the existing power -plant on Maroon Creek. At the time of it's inception, I stated in a memo, my reservations as to the conflict with water treatment operations. However, It was determined that the benefits of a hydro - electric plant outweighed the inconveniences that such a plant would create. In 1973, in order to preserve it's water rights on Maroon Creek, the City built a new pipe line into the treatment plant. Lack of funds delayed the replacement of the old 1892 crib -wall dam on Maroon Creek, until the mid- eighties, when an arrangement was worked out with the Deane family that allowed a constriction access for a new dam. This was accomplished through a joint - venture agreement for the development of a power house log cabin on land owned by the Deane family. Unfortunately the design and selection of the turbine for peak operations was not compatible with pipe line capacity in winter, because Maroon Creek is subject to variable ice and debris flows. In spite of these handicaps, I was able to operate the turbine at a limited output even when demands for treated water and snow making were paramount. This required innovation and persistence on my part gained from the many years of experience in rebuilding an antiquated water system and operating the early -day powerhouse under the Castle Creek bridge; which in its day was a tribute to the engineering skill of it's builders. Unfortunately, short -sited expediency in the early sixties on the part of the Aspen City Council determined that the power house turbines (at the old Castle Creek power house) should be scrapped and the building turned into a maintenance shop" (The rationale being; the overhead cranes would be useful to pick up machinery) "Like the D &RG tracks that were torn out below Aspen, the expediency of yesteryear has come to haunt us today. We cannot undo the mistakes of the past, but we can learn from past mistakes and consider the advise of those with experience under adverse conditions." In August of'91, I wrote an extensive memorandum to the Aspen Energy Committee, with copies for the Aspen City Council; wherein I identified and outlined in detail how sites could be developed. (I closed with the following comment:) " I hope this community will begin to plan for the future and have the vision to see beyond moments of self interest. Our big problem today is: we are ineffectual, due in part to a lack of continuity and experience. We are so bogged down in the process that we can not obtain results. Our local bureaucracy has grown exponentially, yet results are less than ever. What we need today are: more doer's with a shovel in their hand and less bureaucrats warming chairs. There's a new bumper sticker, "Bring back the Quiet Years ". In the "Quiet Years" Mayor Wagner personally cleaned the city ditches with a shovel. A good example of "hands -on" management. Perhaps a shovel is what is needed today, too!" Sincerely, Jim Markalunas as /0 f » �1 ..... .. ♦ .• ..� rp" I V L r' rd ^ ` a• : ^ r7 r or in MOE* Oak �..'a ti •+fr - t t ,�- o� a� Off AW�M; I Q T 4- lop 0 tr N Cpl y x 5v Y. INA A6, I -Tf"N 16 Mi I i n b a 0 0 Jim Markalunas, who is chief plant operator for Aspen's water system, stands beside the Maroon Creek headgate which puts four million gallons of water a day into the system. Enough water for Aspen?. Aspen uses enough water in a year to cover the entire townsite with a foot of water. In 1975 Aspen used a billion 200 million gallons. On the peak day in July, the use was six mill- ion gallons. And Aspen has good water. "Aspen's raw water is of better quality than the treated water of many cities," says Jim Mar- kalunas, chief plant operator for the Aspen Water Department. Where does Aspen's water come from? On a hilltop in Meadowood be- hind a high fence, set in a park- like lawn, there is a sparkling clear small lake. It is Aspen's water supply, a reservoir that holds about a day's supply of water for the city. Maroon and Castle The water comes in via pipelines from Maroon and Castle Creeks. Four million gallons a day come from Maroon Creek. Two and a half million gallons a day from Castle Creek. "Maroon is better water, it's cleaner," says Markalunas. "Cas- tle Creek has the runoff from the iron mine up in Ashcroft and be- cause of cloudbursts on its watershed, it can run real muddy ... it looks like chocolate so we call it the Willy Wonka Creek." The water. is taken from Maroon Creek through the old original headgate, built in 1892, by HP Cowenhoven. The dam is of wooden cribing. "As long as the logs stay wet, they don't rot," says Markalunas. The water is taken from Castle Creek through a new concrete dam. "To try to control the muddi- ness, I used to ask the residents along Castle Creek to watch the creek... and call me when it was muddy. I would drive up, and turn off the Castle Creek headgate," says Markalunas. "In 1972 we devised a system to automatically divert the dirty water. Sensitive apparatus sam- ples the amount of dirt particles and diverts the water back into the river. As soon as the water clears up, it automatically puts the water back into the system." After the water is taken out of the creeks at the headgates, it is carried through the pipes down into the reservoir at Meadowood. Treatment Plant And located next to the reser- voir is the eight million gallon (a day) treatment plan built in 1966. The water treatment plant fil- ters and clarifies the water and chloride and fluoride are added. Markalunas explains that the clarification process "is like put- ting snowflakes in the water ... It is a compound that catches onto the debris and particles and filters it out of the water. Just like snowf- lakes clean the air, the compound cleans the water. It's an idea from mother nature applied to water purification. After all, everything that man does is copying naturd." Markalunas says that the chloride and fluoride are the only things that people ingest (because even the clarification compounds are filtered out). "We keep chlori- nation at a minimum," he says, "because Aspen is lucky being at the top of the water supply. The only thing we have to worry about are campers in the campgrounds above us." However, in the treatment plant there is a lab, and every day the crew tests for organisms that might be present in the water that could cause illness. 24 samples a month are also sent to the state lab. The Aspen lab also tests the chemical content. They test for levels of iron, cadmium, silver, arsenic, and lead. "We've had an impeccable re- cord for pure water since 1966," says Markalunas. That wasn't always the case. "Historically Aspen got its water from three sources, Castle, Maroon and Hunter Creeks," exp- lains Markalunas. "The water was brought down to the reservoir in wooden flumes." The Wells "Then, during the early 1960's there was the well episode. The City of Aspen acquired the water system from Fred Hardy... and rather than rebuild the anti- quated system, the City Council decided to do wells. "They sank four wells in town. They got clear water ... but also something that made everyone ill," Markalunas explains that Aspen's sanitation for years had been cesspools and septic tanks, "It was discovered that seepage from these was still in the water table and was contaminating the well water. "The City Council had a crisis situation; and went on a crash program to fix it. The solution was to go back to the creeks, go back to using the old reservoir, and also building the treatment plant which opened in 1966. "For several years after 1966, Aspen's entire source came from Castle Creek, then the Maroon Creek water was reinstated in 1973. "At present we take no water out of Hunter Creek, but we are now in the process of bringing it back into the system." Water Rights Markalunas says that a lot of it has to do with water rights. "We are just lucky that during the well episode nobody took away our water. To keep your water rights, you have to prove use. We have to thank Pabst and Barnard administrations for the foresight to go back and redevelop our stream rights. "Even so, we are in danger of losing some of our water rights. The City of Aspen originally had water rights from Castle, Maroon and Hunter Creeks for both domestic water and hydro electric power. Aspen was the fast town in Colorado to generate its own power." Use Of Rights To maintain its water rights, a city must show beneficial use and application of existing water rights. We are using our domestic rights on Castle and Maroon and soon will on Hunter... but we could lose our water rights for hydro electric power. The City of Aspen closed its electric generating plant in 1958, again because of costs. Markalunas says that for the past 20 years, attempts have been made by the Arkansas River Di- version to take Castle and Maroon Creek water. "They could come in and ap- propriate our power adjudication (since we're not using it). This could force us to put in storage dams... if we don't do it ... they will. I think it would be more approp- riate for us to develop the hydro electric power, and keep our water rights in this valley," he says. Not Enough Water? But even more than the hydro electric rights, Markalunas is worried about the state of the Aspen Water System. "If we don't keep up with growth we are in trouble," he says. "The capacity of our treat- ment plant is eight million gal- lons of water a day ... and we are already up to using six million gallons a day. "With our historic growth rate of eleven percent, we will he at capacity use by 1978. We should be in the planning stage right now for the expansion of the water treatment plant." Markalunas says there are sev- eral ways to help the situation. "Aspen has the highest average per capita water consumption in the state," he says. "We have a flat rate and so there is a lot of waste- ful uses... people leave their sprinklers on all night, even when it's raining." What To Do Markalunas said the city is try- ing to change this wasteful use. "We are in the process of metering all water users ... within a five year period, everyone will be on a meter," he says. "The City Council has also re- commended bringing raw water back into the irrigation ditches. This would give some irrigation of the town without having to use the treated water from the plant." But Markalunas' strongest re- commendation is to have a moratorium on hookups to the water system... until some provi- sion is made for expanding the system. —Mary Eshbaugh Hayes the aspen times Section b Turbidity control by automatic diversion By James J. Morkakmase Founded in 1881 as a silver camp, Aspen, Colorado produced millions in silver ore before the turn of the century. No longer do the miners' burros pack the silver nuggets down the slopes surrounding As. Vinsdcr, Treatment and Supply, Aspen, Cola. pen. Huge trucks now convey rich iron ore from a large deposit located at 12,000 It above sea level to the nearest railhead for shipment to the smelters. This deposit of iron ore lies at the headwaters of Castle Creek, a tributary of the Roaring Fork River, which in turn flows into the Colorado River. Castle 44 WATER & SEWAGE WORKS, February, 1974 Creek, normally a sparkling clear creek, is fed by melting snows high in the mountain basins. The City of Aspen derives its drinking water from this source. In 1966, Aspen constructed a modern 8 mgd water treatment plant, which employs the latest techniques in clarification and filtration. The system delivers by gravity excellent potable water, which is consistently under 0.1 JTU. However, like so many communities all over the nation, the City of Aspen is faced with the constant problem of a deteriorating raw water quality, as mining activity increases and a burgeoning population continues to make inroads into a once uninhabited watershed. Because these iron mines are surface or "strip" type operations, the displacement and disturbance of the delicate artic -type tundra found at this high elevation exposes the soil to rapid erosion by melt- ing snows and summer rains. During the spring melt and after heavy intermittent summer rains, Castle Creek at times becomes highly turbid, and high in iron content. To insure that these highly turbid wa- ters, which may last from one -half hr to 24 hr, do not enter the city's intake and raw water storage reservoir, a system was devised to turn off the raw water diversion and restore the raw water pipeline to service after the water cleared up. An intake diversion dam on Castle Creek conducts the flow through a pipe line to a structure where a 30 in: diam butterfly valve is located. When this butterfly valve is closed, the flow passes over a weir and re- turns to the creek. When the butterfly valve is open, the water flows on through the pipe line to the wa- ter treatment plant some two mi away. TURBIDITY SENSING UNIT. A sample pump is lo- cated in this structure which constantly samples the raw water flow through a turbidity sensing unit equipped with alarm contacts. When the alarm point is reached, an electrical circuit closes, operating the butterfly valve which transmits a signal over leased telephone lines to the water treatment plant, inform- ing the operator that the raw water source has been turned off. Raw water continues to flow over the weir and continuous monitoring of turbidities is main- tained. When the raw water turbidity drops to an acceptable level (as predetermined by the opera- tor) a second alarm contact is energized, causing the electrically operated valve to reopen and trans- mit a signal to the water plant to inform the operator that the valve is again open. When system demands are high and existing raw water storage cannot keep the plant in operation, the operator has the option of manually overriding the alarm signals and can cause the electrically operated valve to reopen from the plant location. The system thus enables the op- erator to maintain a chemical dosage for a limited range of turbidities and also increases the length of filter runs. The raw water storage reservoir does not silt up as quickly and the net water production of the plant is greater. This system was placed in operation during the summer of 1971 and has effectively reduced turbid- ity introduction into the system during rain storms since that time. It is not expected that highly turbid water will have to be transmitted to the plant dur- ing the spring runoff due to the high dilution factor and large volume of snow melt water. However, the system was constructed to enable the operator to select the turbidity level which would be accept- able. Because of warm days and very cold nights, a cyclical pattern is prevalent: for periods of lower turbidity and iron content at certain times of the day, the system can be programmed to accept only the higher quality water. TURBIDIMETER TEAMWORK. Integrated at the re- ceiving end of the raw water supply line, another turbidimeter control unit monitors the flow arriving at the Aspen plant. Coupled with the turbidimeter control unit monitoring the finished or filtered water, this turbidimeter control unit can, at the operator's option, control any combination of chemical feeders and alarms. For example, should there be an in- crease in turbidity, the finished water turbidimeter can control a coagulant aid feeder for the filters, while the raw water turbidimeter paces several feed- ers of alum, lime, etc., for the clarifier. The Aspen treatment plant is automated and alarmed to process water on a 24 hr -a -day, 7 Jay- a week basis with the service of one or two opera- tors. With the installation of the outomatic diversion system, the operator need no longer go home with 1 to 5 Jtu water standing i,i the filter beds . and find 200 to 300 Jtu water in the plant the next morning — with filter seal -off or break- through oc- curring as the result of a mid -night cloudburst. With automatic raw water diversion plus auto- matic chemical dosage, the Aspen plant is able to produce consistently high quality water, regard- less of changing conditions, at low cost in chemicals and with long filter runs. For the small treatment plant with limited storage and a normal pattern of low turbidity raw water supply (which is subject to incremental high turbidities), a system employing these basic principles will insure a more consistently high quality water to the consumer. ACKNOWLEDGEMENTS. The author wishes to ex- press his appreciation and thanks to: Ed Ambler, technical assistance; H. Crabtree, operation schema- tic; Douglas Fogarty, graphs and Gary Wall, photo. graphs. ■ WATER dr SEWAGE WORKS, February, 1974 43 Debris slope on nw slope of Taylor Peak has large deposit of overburden or waste material from surface mining operation. Erosion of this loose deposit can cause excess iron and turbidity during periods of heavy rain or rnowmelt. Diversion Structure which contains raw water monitoring devices and automatic valve equipment. Note Overflow return to Castle Creek. on right monitors raw water from reservoir. Turbidimeter Selector control (top left) allows operator to determine which Turbidimeter(s) will control the various chemical feeders and clarification equipment. Turbidity monitoring units at Aspen Treatment Plant. Unit on left monitors treated water, while unit aroon Creek Hydro Project: When the Maroon Hydro Project is operational, r treatment costs will increase. In previous years, we have relied on Maroon Creek as our primary source of Raw Water particularly during the spring and ea summer run- offs. Since Maroon will no longer be available except for a short periods of time, it will be necessary to rely on the more turbid Castle Creek water for the bulk of our needs. Castle Creek, historically of poorer quality, is subjected to increasing Pollution due to building construction and mining activities in this valley. In order to minimized our treatment costs we have, over the past 10 years, valved off this secondary supply during the Spring run -off and Summer Rains. Once Maroon Creek is lost as a primary source, our operational costs, associated with treating this water of poorer quality , will increase. 8. Recommendations: We recommend that the City give serious consideration to developing existing Water resources so as to maximize the greatest benefit to the community. Several concepts should be explored and some of these are: 1. Install a Hydro - Electric plant on Castle- Creek. A hydro- electric plant on Castle Creek would protect City owned Water Rights adjudicated for. power generation. In conjunction with the proposed plant on Maroon Creek the City would be better able manage stream flows and municipal water supplies. The City could selectively divert water for the best use, in conjunction with seasonal water conditions or needs. 2. Surplus " off- season" treatment and pipe line capacity should be better managed by working with the Ski Co to develop additional Snowmaking facilities at all four -area ski mountains. The existing arrangement with the Aspen Ski Co. on Aspen Mountain has proven beneficial both to the City and Community. 3. Subdivisions with marginal supplies should be encouraged to upgrade and improve the reliability of their local system by providing incentives to connect or upgrade. Such incentives could be in the form of development rights or "points" under the current GMP process. In possible closing, for the it is our least cost. continued hope With to provide the highest level of service and still provide a reliable, community safe and support we can achieve these objectives potable water supply for Aspen. y submi lespectful ,tted, Markalunas, Director ASPEN WATER DEPARTMENT January 8th 1989 Page 38 What I see is a rush to look green without doing the most basic homework which would be a full 12 month environmental study. This project on balance is not green. The manner in which this issue has been handled is very disappointing. Please deny approval of Ordinance #15. ffE b MEMORANDUM TO: Mayor Ireland and Aspen City Council FROM: Jessica Garrow, Long Range Planner dj RE: Extension of Vested Rights — Continue Public Hearing to September 27, 2010 MEETING DATE: September 13, 2010 SUMMARY: Staff has found that the legal noticing for the Dancing Bear Extension of Vested Rights originally scheduled for September 13` was done incorrectly. Staff requests that City Council continue the public hearing to September 27th in order to provide proper notice to neighbors. A full packet will be provided for the September 27` public hearing. RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): "I move to continue the public hearing to September 27, 2010." CITY MANAGER'S COMMENTS: '1I MEMORANDUM TO: Mayor and City Council FROM: Amy Guthrie, Historic Preservation Officer RE: 100 E. Francis Street, The Given Institute, Ordinance #48 negotiation DATE: September 13, 2010 PROCESS: On August 9, 2010, City Council passed Resolution #64, Series of 2010, extending the Ordinance #48 negotiation period on the .preservation of The Given Institute to September 22 " A noticed public hearing is in place, and Council is able, at this meeting or any time up until September 22 " to offer incentives through an Ordinance that would secure landmark designation. However, the University of Colorado has never indicated any incentives are of interest. Staff has met with a citizen's committee who have brainstormed possible future tenants, and buyers of The Given Institute, as well as development options that might include subdividing just a portion of the property for residential use, or the creation and sale of TDRs. The committee also believes that it is important to communicate with the would -be buyer of the site, if an offer exists, to determine if any public /private partnership is possible. SPECIAL MEETING CALLED FOR EXECUTIVE SESSION S Date September 13, 2010 Call to order at: b s m. I. Councilmembers present: Councilmembers not present: S - M ick Ireland ❑ Mick Ireland Steve Skadron ❑ Steve Skadron Dwayne Romero ❑ Dwayne Romero Torre ❑ Torre ❑ r k Johnson Derek Johnson ere II. Motion to go into executive session by ; seconded by Other persons present: AGAINST: FOR: Mick Ireland Steve Skadron Dwayne Romero Torre Derek Johnson ❑ Mick Ireland ❑ Steve Skadron ❑ Dwayne Romero ❑ Torre ❑ Derek Johnson III. MOTION TO CONVENE EXECUTIVE SESS N FOR THE PURPOSE OF DISCUSSION OF: C.R.S. 24-6-402(4) �s)oe) ( 10 - 6n— aQfhe purchase, acquisition, lease, transfer, or sale of any real, personal, or other property interest G Conferences with an attorney for the local public body for the purposes of receiving legal advice on specific legal questions. (c) Matters required to be kept confidential by federal or state law or rules and regulations. (d) Specialized details of security arrangements or investigations, including defenses against terrorism, both domestic and foreign, and including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law; &Determining positions relative to matters that may be subject to negotiations; developing strategy for negotiations; and instructing negotiators; (f) (I) Personnel matters except if the employee who is the subject of the session has requested an open meeting, or if the personnel matter involves more than one employee, all of the employees have requested an open meeting. IV. ATTESTATION: The undersigned attorney, representing the Council and being present at the executive session, attests that the subject of the unrecorded portions of the session constituted confidential attomey - client comi)1unication: The undersigned chair of the executive session attests that the discussions in this executive session were limited' to the topic(s) described in Section III, above. Adjourned at: i 3