DATE FILED: December 11, 2015 2:31 PM TH:le 1U: WZAJUAUJJOE CASE NUMBER: 2013CW3109 DISTRICT COURT, WATER DIVISION 5, COLORADO 109 81?? STREET, SUITE 104 GLENWOOD SPRINGS, CO 81601 PHONE NUMBER: (970) 945-5075 CONCERNING THE APPLICATION FOR WATER RIGHTS OF: CITY OF GLENWOOD SPRINGS IN GARFIELD COUNTY, COLORADO. A COURT USE ONLY ATTORNEYS FOR APPLICANT: CITY OF GLENWOOD SPRINGS MARK E. HAMILTON, #24585 HOLLAND HART LLP 600 EAST MAIN STREET, SUITE 104 ASPEN, CO 81611-1991 TELEPHONE: (970) 925-3 476 E-MAIL: CHRISTOPHER L. THORNE, #20003 HOLLAND HART LLP 555 17TH STREET, SUITE 3200 DENVER, CO 80202-3979 CASENO-13CW3109 TELEPHONE: (3 03) 295-8488 E-MAIL: WATER DIVISION 5 ATTORNEYS FOR OPPOSER GLENWOOD HOT SPRINGS LODGE POOL, INC. SCOTT BALCOMB, ATTY. REG. #1376 DAVID HALLFORD, ATTY. REG. #10510 BALCOMB GREEN, P.C. POST OFFICE DRAWER 790 GLENWOOD SPRINGS, CO 81602 TELEPHONE: (970) 945-6546 E-MAIL: STIPULATION AND AGREEMENT Applicant, the City of Glenwood Springs (?City?) and Opposer, Glenwood Hot Springs Lodge Pool, Inc. hereby stipulate and agree that speci?c conditions shall be included in the Decree entered in this case. The basis for those conditions and their detail are agreed to as follows. . CASE No. 13CW3109 STIPULATION AND AGREEMENT Page I The City proposes to construct recreational in-channel diversion structures in the bed of the Colorado River at a location designated and generally located as the ?Two Rivers Whitewater Par in the City?s Application in this case. As of the date of this Stipulation, the City has not completed ?nal construction plans and designs for RICD structures within the Two Rivers Whitewater Park or secured the permits needed to construct them. SLP owns and uses vested water rights decreed for the Mammoth Yampa Hot Spring (?Hot Springs Right?), described as follows: Structure Adj. Date Approp. Date Amount Case No. Source Mammoth Yampa Hot Springs 09/13/1967 04/15/1891 5.00 C.A. 1416 Colorado River Mammoth Hot Spring 15' En]. 03/11/1996 04/15/1891 3.00 94CW167 Colorado River Mineral Hot Springs Area No. 1 05/31/1972 12/20/1965 3.59 CA. 1548 Colorado River and 2 The Hot Springs Right withdraws geothermal water supply from the Leadville limestone aquifer, which aquifer underlies property and certain other adjacent properties, including the bed and banks of the Colorado River where the Two Rivers Whitewater Park would be located. The Hot Springs Right is an essential component of hot springs pool operation. HSLP owns and operates the Glenwood Hot Springs Lodge Pool, Inc., which is proximate to the Colorado River reach where the Two Rivers Whitewater Park would be developed. HSLP is therefore concerned about any potential construction impacts or any post- construction operational effects of the Two Rivers Whitewater Park upon the prOperty, water rights, or commercial hot springs operations. HSLP is speci?cally concerned about any effects RICD structures in the Colorado River at the Two Rivers Whitewater Park could have upon the bed of the Colorado River, including both any potential construction-related impacts and any potential post-construction scouring effects that these structures could have on the bed of the Colorado River. HSLP believes that the construction and use of RICD structures in this location could injure rights of HSLP in the following general ways: by penetrating or otherwise structurally damaging the Leadville limestone aquifer, with resultant reduction or elimination of ?ow from the aquifer to supply Hot Springs Right; and/or by increasing in the high water line of the Colorado River causing increased frequency and magnitude of ?ooding of adjacent property. Although the City believes that future construction and use of RICD structures at the Two Rivers Whitewater Park will not damage the Leadville limestone aquifer or increase ?ood risks to HSLP, in order to compromise and settle the opposition to the City?s pending application to con?rm RICD Water Rights, the City is willing to commit to the provisions and parameters speci?ed below in Section 6. The Parties agree that the following limitations and conditions shall apply to any future RICD structures developed by the City at the Two Rivers Whitewater Park location: CASE NO. I3CW3109 STIPULATION AND AGREEMENT Page 2 A. At least 60 days prior to the execution of any contracts for the initiation of the work to construct RICD structures at the Two Rivers Whitewater Park, the City shall ?rst provide HSLP with all ?nal construction design reports, drawings, and other documentation for that construction for review and comment. Within 30 days after the Court?s approval of this Stipulation and Agreement, the City shall provide HSLP the Colorado River river topography extending from a point upstream where an existing City potable water pipeline crosses the Colorado River near the Yampah Spa to a point near the Two Rivers Park boat launch, as prepared for the City by Sopris Engineering in the form of an Autocad Civil 3D ?le that includes survey points used and post-process TIN surface. B. Any RICD structures constructed by the City at the Two Rivers Whitewater Park location shall be designed and operated according to the following conditions. 1. The RICD structures at the Two Rivers Whitewater Park shall be designed consistent with the Grade-Control Structure Scour Schematic attached as Exhibit A and such that the maximum uncontrolled scour depth (AZ) plus the drop height as shown on Exhibit A, shall not exceed 9.5 feet. 2. Except with regard to installation of sheet pile walls, which may extend to a depth of up to 18.0 feet below the pre-construction thalweg of the river bed, the City?s construction of RICD structures at the Two Rivers Whitewater Park shall not disturb the bed of the river below a depth of 12.0 feet below the pre- construction thalweg of the river bed. 3. Prior to completion of construction of RICD structures at the Two Rivers Whitewater Park, the City shall install an engineered scour pad in the pool for each RICD structure extending at least 20.0 feet of each RICD. structure, with a thickness of at least ?ve feet within the ?rst 15.0 feet of each RICD structure and a thickness of at least three feet with the area 15 to 20 feet of each RICD structure. The riprap revetment shall be designed using methodology described in the most recent Federal Highway Administration (FHWA) HEC-23 design guidance manual. 4. The structure slope for each RICD structure at the Two Rivers Whitewater Park location shall be no greater than a 7:1 (horizontal-to-vertical) slope in the direction. C. Prior to construction of RICD structures at the Two Rivers Whitewater Park location, the City shall also ?rst obtain necessary ?oodplain impact reviews and approvals verifying that, per current City Code, ?the proposed encroachment would not result in any increase (requires a No?Rise Certi?cation) in ?ood levels within the City during the occurrence of the base ?ood discharge? with regard to ?Existing Conditions? (as de?ned below). To facilitate this determination, the City shall perform HEC-RAS comppter modeling in the following manner: CASE NO. 13CW3109 STIPULATION AND AGREEMENT Page 3 1. The City shall ?rst establish a working ?Duplicate Effective? hydraulic model to replicate the FEMA model as used for the current Flood Insurance Study If necessary, the Duplicate Effective model will be modified to correct any errors or add additional cross sections to create the ?Corrected Effective? model. The resulting model will be the ?Effective? model. 2. To that Effective model, the City shall then add relevant features constructed since the model was produced (for example, the Two Rivers Park pedestrian bridge and the Grand Avenue pedestrian bridge). The addition of these features will result in an ?Existing Conditions? model. 3. Then, to the Existing Conditions model, the City shall add the actual design of the proposed RICD structures for the Two Rivers Whitewater Park to show the effects of the RICD structures. This revised model will be referred to as the Conditions? model. 4. Finally, the City shall compare the results of the RICD Conditions model with the Existing Conditions model in order to con?rm that the addition of RICD structures will not result in any increase in water surface elevations during a 100- year ?ood event (no-rise). To the extent reasonably possible, the City?s ?ood modeling shall be coordinated with prior models used by the Colorado Department of Transportation for the Grand Avenue Bridge project so that results can be compared. After the City completes this required modeling, a neutral third party shall be jointly selected by the City and HSLP to review the City?s ?ood modeling to ensure that any RICD structures at the Two Rivers Whitewater Park location will not cause arise in 100-year ?ood elevations. If agreement cannot be reached on that third party, the City?s application will be referred to FEMA, or the private consultant with whom FEMA customarily contracts for such services at the time of the City?s application, for additional review. . During construction of RICD structures at the Two Rivers Whitewater Park, designated representatives shall be allowed regular and reasonable access to the RICD construction site to observe compliance with the foregoing conditions to the extent that such does not unreasonably interfere with ongoing construction activities. . After construction of the RICD structures at the Two Rivers Whitewater Park, the City shall annually monitor the integrity of those structures and of the scour pad and report the same to HSLP. Such annual monitoring shall continue for ?ve years after the completion of the construction, and then every three years if no failure is discovered during the initial ?ve years. For purposes of this provision, the term failure shall mean that the top surface of the scour pad has eroded below the as-built CASE NO. 13CW3109 STIPULATION AND AGREEMENT Page 4 completed elevations at these locations to a depth of either at least 2.0 feet (within the portion of the scour pad in the area from 0? to 15? of each RICD structure) or at least 1.5 feet (within the portion of the scour pad extending from 15? to 20? of each RICD Structure). These areas and erosion depths are both indicated as ?Max Allowable Erosion? on the attached Exhibit A. If the City fails to monitor and report, HSLP may complete its own inspection and the City shall be liable for all costs incurred by HSLP in doing so. If any failure is discovered, the failure shall be and fully remediated by the City with notice to HSLP of the remediation action and right to observe and inspect the remediation action. If the City declines to recognize or act regarding any failure, HSLP may undertake the needed remediation and the City shall be liable for all of the costs incurred by HSLP in doing so. 7. The City shall grant HSLP a perpetual, non-exclusive easement over and across City-owned property for installation, operation, maintenance, repair and replacement of two water delivery pipelines, each up to 24 inches in diameter, in the approximate alignment shown on Exhibit B, attached hereto and incorporated herein by this reference. The construction and operation of those pipelines are intended to facilitate and improve surface drainage and pool discharges. For purposes of construction, the City hereby grants a temporary non-exclusive construction easement to HSLP for purposes of allowing the installation of these pipelines, provided that the ?nal design and construction management plan for such pipelines shall be submitted for review and approval by City staff at least 30 days prior to commencement of construction, which approval shall not be unreasonably withheld, and the project shall be scheduled and staged so as to limit con?icts with other uses of the City?s property in this location. Upon completion of construction, HSLP shall survey the as-built location of the pipelines and provide the same to City staff for approval and acceptance. Then, within 30 days following the City?s acceptance and approval of as-builts, the City shall execute and deliver to HSLP of a Bargain and Sale Deed in form acceptable to counsel for both Parties for purposes of con?rming a perpetual, non-exclusive easement for future operation, maintenance and repair of the pipelines. The Parties acknowledge ?nal as- built locations and easement widths may vary from the descriptions shown on Exhibit based upon engineering and design needs of both HSLP and the City. The Parties shall cooperate to resolve conflicts, if any, between proposed pipelines and the City?s utilities, including a to-be?relocated City sewage lift station. 8. As further consideration for this Agreement, within 60 days after the Court enters an Order approving this Stipulation and Agreement, HSLP shall execute and deliver to the City a Bargain and Sale Deed in form acceptable to counsel for both parties conveying all of right, title and interest in and to lands underlying the bed of the Colorado River as identi?ed in Exhibit attached hereto and incorporated herein by this reference, subject to a reservation to HSLP of title to any and all mineral interests, including interests in geothermal resources, underlying or appurtenant to such lands, and subject to all exceptions of record. 9. Subject to the terms of this Stipulation and Agreement, HSLP agrees to entry of a decree approving the RICD Water Rights requested in this case that is no less restrictive than the proposed decree that is attached to this stipulation as Exhibit (?Proposed Decree?) and CASE NO. IBCW3109 STIPULATION AND AGREEMENT Page 5 10. 11. 12. 13. 14. 15. incorporated by this reference, provided that any subsequent pr0posed or ?nal decree in this matter may contain different time periods for the speci?ed flow rates for the RICD Water Rights, provided that the annual number of days at each flow rate shall remain consistent with the Proposed Decree and within the maximum time periods set forth in the City?s initial application in this matter. Any such modi?ed decree shall be considered no less restrictive than the Proposed Decree for purposes of this stipulation. This Stipulation and Agreement shall not be construed as a waiver by HSLP of any claims against the City for damage to HSLP resulting from impacts to the Leadville Limestone Aquifer as it ?ows from the Mammoth Yampa Hot Spring related to the City?s construction, operation and maintenance of RICD structures at the Two Rivers Whitewater Park. Nor shall this Stipulation and Agreement be construed as a an express or implied warranty by the City or as a waiver by the City or its of?cers, attorneys, agents or employees of any of rights, immunities, or protections provided by the Colorado Governmental Immunity Act, C.R.S. 24-10-101, et seq., as amended, or otherwise available to the City, its of?cers, attorneys, agents or employees. HSLP may continue to participate in this case to assure compliance with this Stipulation and Agreement, and shall continue to receive copies of all pleadings and motions and other ?lings with the Court and of draft proposed decrees, engineering reports, and other information submitted to the parties in this matter. The City shall submit this Stipulation and Agreement to the Court for approval and adoption as an order of the Court. Upon such approval and adoption, this Stipulation and Agreement shall be enforceable by the parties both as a contractual agreement and as an order of the Court. After entry of a ?nal decree in this matter by the Water Court, for so long as the City remains in compliance with the terms of this Stipulation, HSLP agrees not to oppose any of the City?s future applications for ?ndings of reasonable diligence concerning the RICD Water Rights to be decreed herein, or to make all or any portion of the RICD Water Rights absolute. However, this agreement of non-opposition shall not apply to any application by the City to change the location or the flow rates for the RICD Water Right decreed for the Two Rivers Whitewater Park. The Parties will each pay their respective attorney fees and costs incurred in this matter. Undersigned counsel for both Parties represent and warrant that they are fully authorized by their client to execute this Stipulation and Agreement and bind their client to each and all of the provisions stated herein. CASE NO. 13CW3I O9 STIPULATION AND AGREEMENT Page 6 Executed this Ht'uay of Dam: La? 2015. HOLLAND HART LLP BALCOMB GREEN, P.C. Ankh By: $997416 Mark E. Hamilton, #24585 ?Scott Balcomb, #1376 Christopher L. Thorne, #20003 David C. Hallford, #10510 Attorneys for Applicant City of Glenwood Attorneys for Opposer Glenwood Hot Springs Springs Lodge Pool, Inc. CERTIFICATE OF SERVICE I hereby certify that I have this date of D4. 6-43 2015 electronically served a copy of STIPULATION AND AGREEMENT via Integrated Colorado Court E-Filing System (ICCES) upon all parties of record as indicated in the ICCES electronic record. (MM) NOTE: This document was ?led electronically. An original signature copy is available or inspection at the of?ce of the originating attorney, pursuant to Colorado Rule of Civil Procedure l2], l-26. 77923333 CASE NO. 13CW3109 STIPULATION AND AGREEMENT Page 7