Attachment Con?dential Settlement Communication protected by C.R.E. 408 Draft 20180306 DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS ofthe CITY OF ASPEN, COLORADO, A COURT USE ONLY A IN PITKIN COUNTY Attorneys for Applicant Case Number: 2016CW3129 F. Covell, Esq., Reg. No. 10169 (CA5884, W-791, W-791-77, Andrea L. Benson, Esq., Reg, No. 33176 81CW063, 85CW045, 89CW030, Alperstein Covell, P.C. 95CW187, 02CW19, 09CW145) 1600 Broadway, Suite 1070 Denver, CO 80202 Water Division No. 5 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com Attorney for Opposer Opposer Asp Properties, LLC: Rhonda J. Bazil, P.C. Rhonda J. Bazil, #14921 420 E. Main Street, Suite 240 Aspen, CO 81611 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER ASP PROPERTIES, LLC Applicant, the City of Aspen (?Aspen?) and Opposer Asp Properties, LLC by and through their undersigned attorneys, hereby stipulate and agree as follows. 1. The water right for which diligence is sought in this case is the Castle Creek Reservoir conditional storage right decreed in Case No. CA 5884 on November 5, 1971, by the District Court, Gar?eld County, Colorado (?Castle Creek Reservoir Storage Right?). Opposer hereby consents to the entry of a Decree regarding the Castle Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 6, 2018, attached hereto as Exhibit A (?Proposed Decree?). Asp shall not protest, appeal or otherwise challenge any ruling or decree ultimately entered by the Water Court in this matter, so long as its terms and conditions are no less restrictive on Aspen than those contained in the Proposed Stipulation and Agreement Case No. 2016CW3129 Page 2 Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the ?Final Decree.? In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Castle Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (?Original Decreed Location?). Prior to expiration ofthe diligence period that commences with entry ofthe Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (?Change Application?), to change the location of the Castle Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or Moore Open Space, or any other location or locations the parties have agreed to in writing (?New Reservoir Sites?). The general location ofeach ofthe New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3128 (regarding the Maroon Creek Reservoir). Asp is the owner of the real property Lot 1, Navratilova Lot Split, according to the Plat thereof recorded in Plat Book 24 At Page 12 of the real property records of Pitkin County, Colorado (the ?Asp Properties Property?). The City of Aspen agrees that it shall not construct or locate any portion of the Castle Creek Reservoir on the Asp Properties Property. Aspen will provide the Change Application to Asp for review no later than sixty (60) days before it is filed in the Water Court, in order to allow Asp to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Asp or any other Opposer in this case within thirty (30) days of the date on which the Change Application is provided (?Notice Period?), Aspen will ?le the Change Application in substantially the form provided to Opposers. If Asp does not bclicvc that the Change Application is consistent with this Stipulation and with the Final Decree, Asp shall provide notice to Aspen within the Notice Period, identifying the specific provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and Asp shall cooperate in good faith to resolve their disagreement. Asp, its agents, assigns or successors in interest will not oppose the Change Application, directly or indirectly, and will take no position regarding the allegations therein. In addition, for a period of twenty (20) years from the date of entry of the Final Decree, Asp, its agents, assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Castle Creek Reservoir Storage Right that has been decreed for storage at one or more ofthe New Reservoir Sites. Asp reserves the right to participate in any 10. Stipulation and Agreement Case No. 2016CW3129 Page 3 land use proceedings or other approval processes required for construction of a reservoir(s) at any ofthe New Reservoir Sites. After the Change Application has been ?led, Aspen will diligently pursue the Change Application to completion, provided, however, that Aspen may, at its discretion, withdraw the Change Application with prejudice in whole or in part, or amend the Change Application without Asp?s approval so long as the amount of storage sought pursuant to the Change Application does not exceed 8,500 acre-feet pursuant to the Castle Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Castle Creek Reservoir Storage Right, the Maroon Creek Reservoir Storage Right (also decreed in Case No. CA 5884), or any combination of such storage rights, does not exceed 8,500 acre-feet, and (3) the locations of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without Asp?s approval. If and to the extent the Change Application does not result in a ?nal decree changing the location of storage of all of the Castle Creek Reservoir Storage Right as decreed by the Final Decree, Aspen will, within 120 days after entry ofa ?nal decree upon the Change Application, or other ?nal order denying or dismissing the Change Application, in whole or in part, ?le appropriate pleadings to cancel the portion of the Castle Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said ?nal decree or other order will be the decree or order following the outcome of the appeal.) The intent of this paragraph is that Aspen will relinquish any portion of the Castle Creek Reservoir Storage Right that it is not transferred to one or more of the New Reservoir Sites pursuant to the Change Application, and Aspen will forego the right to store water pursuant to the Castle Creek Reservoir Storage Right at the Original Decreed Location. If Aspen does not ?le a Change Application prior to expiration ofthe diligence period that commences with entry of the Final Decree, Aspen will not seek a ?nding of reasonable diligence or to make absolute the Castle Creek Reservoir Storage Right. ASpen and Asp agree that this Stipulation is effective only following (1) execution of the same or a substantially similar Stipulation (including approval of the same or a substantially similar form of the Proposed Decree) by all parties to this case and (2) entry of the Final Decree and expiration all appeal periods. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re?refer the above- captioned case to the Water Judge, Water Division No. 5. Following the Order of Re- referral, Aspen will ?le the fully-executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval of the fully-executed Stipulations and for entry of a Final Decree that is substantially similar to, and no less restrictive on Aspen than the Proposed Decree. The parties hereto shall bear their own costs and attorney fees. 3 11. 12. 13. 14. Stipulation and Agreement Case No. 2016CW3 129 Page 4 This Stipulation shall bene?t and be binding upon the heirs, successors and assigns of the undersigned parties. This Stipulation supersedes and controls all prior written and oral agreements and representations of the parties regarding the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants and warranties concerning the subject matter hereof are merged herein. This Stipulation may not be modi?ed except in a writing signed by both parties. This Stipulation may be executed using counterpart signature pages with the same force and effect as if both parties had signed on the same signature page. Electronically generated copies of this Stipulation signed by the parties shall be treated as originals. Copies of the Change Application, Asp?s comments thereon and the ?nal decree on the Change Application shall be provided to the party to whom directed at the address set forth below or at such other address as may be provided by a party by notice pursuant to this paragraph unless some other form of notice is expressly agreed to in writing by both parties. 15. 16. a. For Applicant City of Aspen: City Attorney City of Aspen 130 S. Galena Street Aspen CO 81611 With copy to Covell and Andrea Benson, Alperstein Covell RC, 1600 Broadway, Suite 1070, Denver CO 80202 b. For Opposer Asp Properties LLC: With copy to Rhonda J. Bazil, Rhonda J. Bazil RC, 420 E. Main Street, Suite 240, Aspen CO 81611 Asp will remain a party to this case for the purpose of ensuring that any Final Decree entered herein is consistent with this Stipulation. The parties acknowledge and represent to one another that all procedures necessary to validly contract and execute this Stipulation have been performed, and that the persons signing for each party are duly authorized to do so. 4 Stipulation and Agreement Case No. 2016CW3129 Page 5 17. The parties desire that this Stipulation be approved by and entered as an Order of the Court. Dated: i 94 2018. ALPERSTEIN COVELL, P.C. RHONDA J. BAZIL, P.C. By: F. Covell, #10169 By: MW, #14921 Attorneys for City of Aspen Attorneys for Opposer Asp Properties, LLC DRAFT 20180306 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 DISTRICT COURT, WATER DIVISION NO. 5, COLORADO Gar?eld County Courthouse 109 8th Street, Suite 104 Glenwood Springs, CO 81601 970/945-5075 COURT USE ONLY Case Number: 2017CW3129 CONCERNING THE APPLICATION FOR FINDING (CA5884, W-791, W-791-77, OF REASONABLE DILIGENCE OF THE CITY OF 81CW063, 85CW045, 89CW030, ASPEN 95CW187, 02CW19, 09CW145) in PITKIN COUNTY, COLORADO Water Division No. 5 FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE OF THE WATER COURT (Castle Creek Reservoir) This matter comes before the Water Court upon the application of the City of Aspen, Colorado (??Applicant? or ??Aspen?) for a ?nding of reasonable diligence. The Court, having reviewed the pleadings of the parties, the comments of the Division Engineer and response thereto and having become fully advised with respect to the subject matter of the application hereby makes the following Findings of Fact, Conclusions of Law, Judgment and Decree of the Water Court (?Decree?). FINDINGS OF FACT 1. Applicant. The applicant is the City of Aspen, Colorado, c/o David Hornbacher, Utilities Director, 130 South Galena Street, Aspen, CO 81611, telephone, (970) 920?5110. Copies of all pleadings in this matter are to be delivered to F. Covell and Andrea Benson, Alperstein Covell RC, 1600 Broadway, Suite 1070, Denver, CO 80202. 2. Application. The application in this matter was ?led by Aspen on October 31, 2016, and referred to the Water Referee for Water Division No. 5, State of Colorado by the Water Judge of said Court in accordance with Article 92, Chapter 37, of the Colorado Revised Statutes known as the Water Right Determination and Administration Act of 1969. The matter was re-referred to the Water Court on 3. Notice and Jurisdiction. Timely and adequate notice of the pendency of these proceedings in rem was given in the manner provided by law. The application was published in DRAFT 20180306 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 the Water Resume for Water Division 5 for October, 2016, and in the Grand Junction Daily Sentinel on November 20, 2016, the Aspen Times Weekly on November 24, 2016 and the Ri?e Citizen Telegraph on November 24, 2016. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected hereby, irreSpective of whether those persons or property owners have appeared. None of the lands or water rights involved in this case is within the boundaries of any designated groundwater basin. 4. Statements of Opposition and Stipulation. Timely statements of opposition were ?led by Double Creek Limited, Asp Properties LLC, Wilderness Workshop, Western Resource Advocates, American Rivers, Colorado Trout Unlimited, Pitkin County, and the United States of America. The time for ?ling Statements of Opposition has now expired. ASpen has entered into stipulations with all Opposers, and the Court has approved such stipulations as follows: a. Stipulation dated with Double Creek Limited, approved by Order of the Court Dated b. Stipulation dated with Asp Properties LLC, approved by Order of the Court Dated c. Stipulation dated with Wilderness Workshop and Western Resource Advocates, approved by Order of the Court Dated d. Stipulation dated with American Rivers and Trout Unlimited, approved by Order of the Court Dated e. Stipulation dated with Pitkin County, approved by Order of the Court Dated f. Stipulation dated with the United States of America, approved by Order of the Court Dated 5. Name of structure: Castle Creek Reservoir. 6. Original Decree for Conditional Water Right: The water right was originally decreed on November 5, 1971 in Case No. CA 5884, District Court, Garfield County, Colorado. 7. Subsequent Decrees Awarding Diligence. Diligence was awarded in Case No. W- 791 (March 15, 1973); W-791-77 (November 7, 1977); 81CW063 (October 29, 1982); 85CW045 (July 17, 1985); 89CW030 (August 29, 1989), 95CW187 (January 4, 1996), 02CW19 (September 3, 2003), and 09CW145 (October 11, 2010). DRAFT 20180306 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 8. Location of Conditional Water Right: The decreed location of the Castle Creek Reservoir conditional storage right is as follows: The original decreed location of Castle Creek Reservoir is located in Sections 18 and 19, Township 11 South, Range 84 West of the 6th P.M., Pitkin County, Colorado. The initial point of survey of the high water line of the reservoir on the east side of the dam is located such that the angle from the axis of the dam measured clockwise is to Highland Peak and 340?51' to Hayden Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) By stipulations and agreements with certain landowners, Aspen has agreed to the following revised legal description of the location of the Castle Creek Reservoir: The Castle Creek Reservoir is located in Sections 18 and 19, Township 1 1 South, Range 84 West of the 6th P.M., Pitkin County, Colorado, but excluding certain parcels of land described as (1) Lot 1, Part of Subdivision H.E.S. 305, according to the Plat thereof recorded January 22, 1980 in Plat Book 8 at Page 77, County of Pitkin, State of Colorado; and (2) that portion of Tract 39, Section 19, Township 11, Range 84 West, located East of Castle Creek Road. The initial point of survey of the high water line of the reservoir on the east side of the dam is located such that the angle from the axis of the dam measured clockwise is 66?25' to Highland Peak and 340?51' to Hayden Peak. (Ties to mountain peaks were used since the reservoir lies within an area not surveyed by local, state or federal agencies.) A map showing the location of the Castle Creek Reservoir as originally decreed is attached as Exhibit A. 9. Source. The decreed source of supply for the Castle Creek Reservoir is Castle Creek, tributary to the Roaring Fork River. 10. Appropriation Date and Amount. The appropriation date is July 19, 1965. The amount appropriated for the Castle Creek Reservoir is 9,062 acre-feet. ll. Decreed Uses. As stated in the decree in CA5884, water stored in Castle Creek Reservoir is decreed for industrial, irrigation, domestic, municipal, and other bene?cial uses, both consumptive and non-consumptive, and for the use and bene?t of the parties lawfully entitled thereto, sufficient water to ?ll said reservoir to its capacity of 9,062 acre-feet and to keep said reservoir reasonably well filled. 12. Integrated Water Supply System. The Castle Creek Reservoir is part of Aspen?s integrated water supply system which currently includes surface water rights decreed for diversion from Maroon Creek, Castle Creek, Hunter Creek and the Roaring Fork River, and DRAFT 20180306 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 decreed wells, as well as water mains, lines and distribution systems for both raw and treated water, pump systems and related infrastructure, a hydroelectric plant and related infrastructure, all of which allow Aspen to provide water for municipal uses, including hydropower, within the city, and extraterritorially by agreement. The Castle Creek Reservoir storage right is part of Aspen?s integrated municipal water supply system. 13. Finding of Reasonable Diligence. The Application requests a ?nding that the Applicant has exercised reasonable diligence in the development of the conditional water right awarded to the Castle Creek Reservoir. The Court has reviewed the Application and has considered the Report of the Division Engineer Summary of Consultation and response thereto and ?nds that the work and expenditures described in the Application and the response to the Summary of Consultation constitute reasonable diligence in the development of 8,500 acre-feet of the conditional water right decreed to the Castle Creek Reservoir, that the Application should be granted and the conditional decree for the Castle Creek Reservoir water right in the amount of 8,500 acre?feet shall be continued in full force and effect, and the remaining 562 acre-feet conditionally decreed to the Castle Creek Reservoir shall be relinquished and cancelled. CONCLUSIONS OF LAW 14. The foregoing Findings of Fact are incorporated herein to the extent they constitute conclusions of law. 15. Timely and adequate notice of the application was given in the manner provided by law, and the application ?led herein is complete, covering all applicable matters required under C.R.S. Section 37-92-302. 16. All notice required by law has been given, and no further notice need be given. C.R.S. Sections 37-92-101, et. seq. 17. The Court has jurisdiction over the subject matter of this proceeding and over all persons and property affected by this Application, regardless of whether such persons or property owners have appeared. C.R.S. Sections 37-92-301(2) and 303(1). 18. The Court concludes that Aspen has established that it has a non-speculative need for 8,500 acre-feet of the conditional storage right decreed to the Castle Creek Reservoir, that water can and will be stored under the Castle Creek Reservoir conditional storage right and will be bene?cially used, and that the appropriation can and will be completed with diligence and within a reasonable time. 19. Aspen has complied with all requirements and met all standards and burdens of proof including but not limited to those set forth in 37-92-3020), and 37-92- 4 DRAFT 20180306 - SETTLEMENT COMMUNICATION PROTECTED BY CRE 408 305(9) to adjudicate its claim for ?nding of reasonable diligence and is therefore entitled to a conditional decree con?rming and approving its conditional water storage right as described in the Findings of Fact. Aspen has satis?ed all other statutory and legal requirements to support a ?nding of reasonable diligence with regard to the Castle Creek Reservoir storage right. 20. The application is in accordance with Colorado law and should be granted. RULING, JUDGMENT AND DECREE 21. The Findings of Fact and Conclusions of Law, as set forth above, are incorporated herein by reference and are hereby modi?ed as necessary to constitute part of the Ruling, Judgment and Decree. 22. The application for ?nding of reasonable diligence is granted in the amount of 8,500 acre-feet conditional to the Castle Creek Reservoir for storage for industrial, irrigation, domestic, municipal, and other bene?cial uses, both consumptive and non-consumptive, and for the use and bene?t of the parties lawfully entitled thereto, suf?cient water to ?ll said reservoir to its capacity of 8,500 acre-feet and to keep said reservoir reasonably well ?lled, with an appropriation date of July 19, 1965. The remaining 562 acre-feet conditionally decreed to the Castle Creek Reservoir is hereby relinquished and cancelled. 23. It is hereby ordered that the conditional decree for the Castle Creek Reservoir water right in the amount of 8,500 acre-feet herein described is continued in full force and effect until 20__ and if Aspen desires to maintain said water right, an application for finding of reasonable diligence shall be ?led on or before that date or a showing shall be made on or before that date that the conditional water right has beeOme absolute by reason of completion of the appropriation. 24. It is further ordered that a copy of this Decree shall be ?led with the Division Engineer, Water Division No. 5, and with the State Engineer. Dated James B. Boyd, Water Judge Water Division No. 5 State of Colorado Castle Creek Reservoir Legend _ ^ Castle Creek Reservoir Roads _ ^ 4 1 inch = 3,000 feet 0 When printed at 8.5"x11" 1,250 2,500 5,000 Feet Date: 10/25/2016 City of Aspen WATER Geographic Information Systems This map/drawing/image is a graphical representation of the features depicted and is not a legal representation. The accuracy may change depending on the enlargement or reduction. Copyright 2016 City of Aspen GIS g Ri ve r rin Sp Colorado Index Map k Fo r in g Bu sh k Cre ek Cozy Point Ranch Buttermilk Mountain 82 ¬ « ulc h 80 00 ns G 00 80 80 00 d oo W r yC k ee sC llin Co Qu ee 0 750 Zoline Open Space Moore Open Space 8000 Aspen Golf Course 00 100 Aspen Mountain ek reek re tle C Vagneur Gravel Pit Woody Creek Aspen Highlands Cas Ro ar Cr re e ek Aspen Pitkin County, Colorado ASPEN a Ro r Fo k re Legend ek Red Mountain CITY OF ASPEN 3,000 9000 Potential New Reservoir Sites Map 6,000 Feet Topography from USGS DEM, C.I. =95100 00 feet Aerial Image from NAIP (2015) JOB NO. 0687.002.00 DATE: Ca sa da yC EXHIBIT re ek 2/15/2018 SCALE: 0 50 10 0 10000 State Highway 82 Potential Reservoir Sites 85 00 Smuggler Mountain Rivers and Streams 9500 Hu nt er C 9500 00 105 g rin 100 00 0 00 11 r ve Ri ¥ U:\0687 City of Aspen\0687.002 In-Situ Screening Study\GIS\Stipulation Exhibit B.mxd Thursday, February 15, 2018 09:53 AM 8500 Wi llo w k Pin eC Brush Cre ee ek re Cr ee k C oo n 10000 Ma r B 1 inch=3,000 feet