ATTACHMENT 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 of the 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 Counsel for Opposer Kevin L. Patrick, #9124 Jason M. Groves, #46692 Patrick, Miller Noto, PC. 229 Midland Avenue Basalt, CO 81621 Phone Number: 970/920?1030 E-Mail: patrick@waterlaw.com FAX Number: 970/927?1030 patrick@waterlaw.com groves@waterlaw.com STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER DOUBLE CREEK LIMITED Applicant, the City of Aspen (?Aspen?) and Opposer Double Creek Limited (?Double Creek?) 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?). Double Creek hereby consents to the entry of a Decree regarding the Castle Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto ATTACHMENT Double Creek Stipulation and Agreement Case No. 2016CW3129 Page 2 Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (?Proposed Decree?). Double Creek shall not protest, appeal or otherwise challenge any ruling or decree ultimately entered by the Water Court in this matter, so long as its terms and conditions are no less restrictive on Aspen than those contained in the Proposed Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the ?Final Decree.? In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Castle Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (?Original Decreed Location?). Prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (?Change Application?), to change the location of the Castle Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or Moore Open Space, or any other location or locations the parties have agreed to in writing (?New Reservoir Sites?). The general location of each of the New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3128 (regarding Maroon Creek Reservoir). Aspen will provide the Change Application to Double Creek Limited for review no later than sixty (60) days before it is filed in the Water Court, in order to allow Double Creek to con?rm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Double Creek Limited or any other Opposer within thirty (30) days of the date on which the Change Application is provided (?Notice Period?), Aspen will file the Change Application in substantially the form provided to Opposers. If Double Creek Limited does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, Double Creek Limited shall provide notice to Aspen within the Notice Period, identifying the speci?c provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and Double Creek Limited shall cooperate in good faith to resolve their disagreement. Double Creek Limited, 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, Double Creek Limited, its agents, assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Castle Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. Double Creek Limited reserves the right to participate in any land use proceedings or other approval processes required for construction of a reservoir(s) at any of the New Reservoir Sites. 2 10. ATTACHMENT Double Creek Stipulation and Agreement Case No. 2016CW3129 Page 3 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 Double Creek Limited?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 Double Creek Limited?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 of a ?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 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 of the 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 Double Creek Limited agree that this Stipulation is effective only following execution of the same or a substantially similar Stipulation (including approval of the same or a substantially similar form of the Proposed Decree) by all parties to this case. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re-refer the above-captioned case to the Water Judge, Water Division No. 5. Following 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 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. This Stipulation shall bene?t and be binding upon the heirs, successors and assigns of the undersigned parties. 11. 12. 13. 14. ATTACHMENT Double Creek Stipulation and Agreement Case No. 2016CW3129 Page 4 Once approved by the Court, this Stipulation may be enforced as an agreement or as an Order of the Court. The terms of this Stipulation shall be deemed additional terms within the Final Decree. 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, Double Creek Limited?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. FOR 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 FOR OPPOSER DOUBLE CREEK LIMITED: Patrick Ho, DRCL Manager BEA Harbour View Centre 56 Gloucester Road Wan Chai, Hong Kong With copy to: Kevin L. Patrick PatricklMillerlNoto 229 Midland Avenue Basalt, CO 81621 ATTACHMENT Double Creek Stipulation and Agreement Case No. 2016CW3129 Page 5 15. Double Creek Limited will remain a party to this case for the purpose of ensuring that any Final Decree entered herein is consistent with this Stipulation. 16. 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. 17. The parties desire that this Stipulation be approved by and entered as an Order of the Court. Dated: 2018. ALPERSTEIN COVELL, P.C. PATRICK, MILLER NOTO, P.C. By. 6% F. Covell, #10169 Kevin L. Fatwa?4 ATTORNEYS FOR ATTORNE FOR CITY OF ASPEN DOUBLE CREEK LIMITED