ATTACHMENT B 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, IN PITKIN COUNTY Attorneys for Applicant Cynthia F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein & Covell, P.C. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovell.com; alb@alpersteincovell.com ▲ COURT USE ONLY ▲ Case Number: 2016CW3128 (CA5884, W-791, W-791-77, 81CW063, 85CW045, 89CW030, 95CW187, 02CW19, 09CW145) Water Division No. 5 Attorneys for Opposer Wilderness Workshop Bart Miller, No. 27911 Robert Harris, No. 39026 c/o Western Resource Advocates 2260 Baseline Road, Suite 200 Boulder, CO 80302 (303) 444-1188; Fax: 303-786-8054 Bart.miller@westernresources.org Rob.harris@westernresources.org STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER WILDERNESS WORKSHOP Applicant, the City of Aspen (“Aspen”) and Opposer Wilderness Workshop (“Wilderness Workshop”) by and through their undersigned attorneys, hereby stipulate and agree as follows. 1. The water right for which diligence is sought in this case is the Maroon Creek Reservoir conditional storage right decreed in Case No. CA5884 on November 5, 1971, by the District Court, Garfield County, Colorado (“Maroon Creek Reservoir Storage Right”). Wilderness Workshop hereby consents to the entry of a Decree regarding the Maroon Creek Reservoir Storage Right that is no less restrictive on Aspen than the proposed Findings of Fact, Conclusions of Law, and Decree of the Court dated March 15, 2018, attached hereto as Exhibit A (“Proposed Decree”). Wilderness Workshop shall not protest, appeal or ATTACHMENT B WW Stipulation and Agreement Case No. 2016CW3128 Page 2 otherwise challenge any ruling or decree ultimately entered by the Water Court in this matter, so long as its terms and conditions are no less restrictive on Aspen than those contained in the Proposed Decree. The decree ultimately entered by the Water Court in this matter is referred to herein as the “Final Decree.” 2. In consideration for this stipulation, Aspen agrees that after entry of the Final Decree, it will not seek to retain any portion of the Maroon Creek Reservoir Storage Right at its original decreed location, which location is described in paragraph 8 of the Proposed Decree (“Original Decreed Location”). Prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will file a water court application with the Water Court, Water Division No. 5 (“Change Application”), to change the location of the Maroon Creek Reservoir Storage Right (as to which diligence is continued by the Final Decree), to one or more new location(s) of storage, described generally as the Woody Creek Parcel, the Aspen Golf Course, Cozy Point Ranch, City property known as Zoline Open Space, Vagneur Gravel Quarry, and/or Moore Open Space, or any other location or locations the parties have agreed to in writing (“New Reservoir Sites”). The general location of each of the New Reservoir Sites described above is depicted on the attached Exhibit B. The Change Application will not include other locations without the prior written agreement of all Opposers in this case and in Case No. 2016CW3129 (regarding Castle Creek Reservoir). Aspen agrees that (1) the amount of storage sought pursuant to the Change Application will not exceed 4,567 acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right, the Castle Creek Reservoir Storage right (also decreed in Case No. CA 5884), or any combination of such storage rights, will not exceed 8,500 acre-feet, and (3) the locations of such storage will not include locations other than the New Reservoir Sites. 3. Any storage reservoir that may be constructed to store the Maroon Creek Reservoir Storage Right on Moore Open Space depicted on Exhibit B will be constructed as an underground storage structure. 4. Aspen will provide the Change Application to Wilderness Workshop for review no later than sixty (60) days before it is filed in the Water Court, in order to allow Wilderness Workshop to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Wilderness Workshop or any other Opposer in this case within thirty (30) days of the date on which the Change Application is provided (“Notice Period”), Aspen will file the Change Application in substantially the form provided to Wilderness Workshop. If Wilderness Workshop does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, Wilderness Workshop shall provide notice to Aspen within the Notice Period, identifying the specific provisions it believes to be inconsistent with this Stipulation or the Final Decree. Aspen and Wilderness Workshop shall cooperate in good faith to resolve their disagreement. 2 ATTACHMENT B WW Stipulation and Agreement Case No. 2016CW3128 Page 3 5. Wilderness Workshop, its agents, assigns or successors in interest will not oppose the Change Application, directly or indirectly, and will take no position regarding the allegations therein. In addition, for a period of twenty (20) years from the date of entry of the Final Decree, Wilderness Workshop, its agents, assigns, or successors in interest will not oppose, directly or indirectly, and will take no position regarding the allegations contained in future diligence applications or applications to make absolute some or all of the Maroon Creek Reservoir Storage Right that has been decreed for storage at one or more of the New Reservoir Sites. Wilderness Workshop’s obligations under this paragraph apply only to proceedings and other matters specifically involving the Maroon Creek Reservoir Storage Right. 6. Wilderness Workshop may fully participate in any environmental assessments, land use proceedings or other approval processes required for construction or operation of a reservoir(s) at any of the New Reservoir Sites, in which proceedings Wilderness Workshop may, without limitation, raise concerns about the environmental impacts associated with the construction and operation of such reservoir(s), including but not limited to potential impacts to riparian health, aquatic habitat, water quality, and to any wildlife migration corridor that may exist at the Cozy Point Ranch site, as well as any other matter relevant to those proceedings. 7. After the Change Application has been filed, Aspen will diligently pursue the Change Application to completion, provided, however, that Aspen may, at its discretion, withdraw the Change Application with prejudice in whole or in part, or amend the Change Application without Wilderness Workshop’s approval so long as (1) the amount of storage sought pursuant to the Change Application does not exceed 4,567 acre-feet pursuant to the Maroon Creek Reservoir Storage Right, (2) the total amount that can be stored annually pursuant the Maroon Creek Reservoir Storage Right, the Castle Creek Reservoir Storage right (also decreed in Case No. CA 5884), or any combination of such storage rights, does not exceed 8,500 acre-feet, and (3) the locations of such storage do not include locations other than the New Reservoir Sites. In addition, Aspen may, but need not, appeal a decree or other water court ruling on the Change Application without Wilderness Workshop’s approval. 8. Aspen may not divert the Maroon Creek Reservoir Storage Right through the Salvation Ditch system to fill any of the New Reservoir Sites without prior written consent from the Salvation Ditch Company or pursuant to other legal authority. 9. If and to the extent the Change Application does not result in a final decree changing the location of storage of all of the Maroon Creek Reservoir Storage Right as decreed by the Final Decree, Aspen will, within 120 days after entry of a final decree upon the Change Application, or other final order denying or dismissing the Change Application, in whole or in part, file appropriate pleadings to cancel the portion of the Maroon Creek Reservoir Storage Right that is not decreed for storage at one or more of the New Reservoir Sites. (If an appeal is made, said final decree or other order will be the decree or order following the outcome of the appeal.) The intent of this paragraph is that Aspen will relinquish any portion of the Maroon Creek Reservoir Storage Right that is not transferred to one or more of the New Reservoir Sites 3 ATTACHMENT B WW Stipulation and Agreement Case No. 2016CW3128 Page 4 pursuant to the Change Application, and Aspen will forego the right to store water pursuant to the Maroon Creek Reservoir Storage Right at the Original Decreed Location. 10. If Aspen does not file a Change Application prior to expiration of the diligence period that commences with entry of the Final Decree, Aspen will not seek a finding of reasonable diligence or to make absolute the Maroon Creek Reservoir Storage Right. 11. Aspen and Wilderness Workshop agree that this Stipulation is effective only upon execution of the same or a substantially similar Stipulation (including approval of the same or a substantially similar form of the Proposed Decree) by all parties to this case. Once all parties to this case have entered into the same or a substantially similar Stipulation, Aspen will re-refer the above-captioned case to the Water Judge, Water Division No. 5. Following the Order of Re-referral, Aspen will file the fully-executed Stipulations of the parties to this case, together with unopposed motions to the Court for approval the fully-executed Stipulations and for entry of a Final Decree that is substantially similar to, and no less restrictive on Aspen than the Proposed Decree. 12. The parties hereto shall bear their own costs and attorney fees. 13. This Stipulation shall benefit and be binding upon the heirs, successors and assigns of the undersigned parties. 14. This Stipulation supersedes and controls all prior written and oral agreements and representations of the parties regarding the subject matter hereof. All prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants and warranties concerning the subject matter hereof are merged herein. This Stipulation may not be modified except in a writing signed by both parties. 15. This Stipulation may be executed using counterpart signature pages with the same force and effect as if both parties had signed on the same signature page. Electronically generated copies of this Stipulation signed by the parties shall be treated as originals. 16. Copies of the Change Application, Wilderness Workshop’s comments thereon and the final decree on the Change Application shall be provided to the party to whom directed at the address set forth below or at such other address as may be provided by a party by notice pursuant to this paragraph unless some other form of notice is expressly agreed to in writing by both parties. FOR ASPEN: City Attorney City of Aspen 130 S. Galena Street 4 ______________________,2018. ATTACHMENT B WW Stipulation and Agreement Case No. 2016CW3 129 Page 5 With copy to Cynthia Covell and Andrea Benson Alperstein & Covell P.C. 1600 Broadway, Suite 1070 Denver CO 80202 FOR OPPOSER WILDERNESS WORKSHOP: Will Roush Conservation Director Wilderness Workshop P.O. Box 1442 Carbondale, CO 81623 (970) 963-3977 With copy to Bart Miller and Robert Harris: Western Resource Advocates 2260 Baseline Rd., Ste. 200 Boulder, CO 80302 17. Wilderness Workshop will remain a party to this case for the purpose of ensuring that any Final Decree entered herein is consistent with this Stipulation. 18. 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. 19. The parties desire that this Stipulation be approved by and entered as an Order of the Court. Dated: ALPERSTEIN & COVELL, P.C. WESTERN RESOURCE ADVOCATES By:__________ Cynthia F. Covell, #10169 By: Robert Harris, #39026 ATTORNEYS FOR CITY OF ASPEN ATTORNEYS FOR WILDERNESS WORKSHOP 1• f4------ 5