I. DATE FILED: August 28. 2018 2:52 DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601-3303 FILING ID: EOA91 15BF4A6D CASE NUMBER: 2016CW3129 IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS of the CITY OF ASPEN, COLORADO, IN PITKIN COUNTY A COURT USE ONLY A Attorneys for Applicant F. Covell, Esq., Reg. No. 10169 Andrea L. Benson, Esq., Reg. No. 33176 Alperstein Covell, PC. 1600 Broadway, Suite 1070 Denver, CO 80202 Phone: (303) 894-8191 Fax: (303) 861-0420 cfc@alpersteincovel1.00m; alb@alpersteincovell.com John M. Ely, Pitkin County Attorney Laura C. Makar, Assistant Pitkin County Attorney Richard Y. Neiley, Assistant Pitkin County Attorney 123 Emma Road, Suite 204 Basalt, Colorado 81621 970-920-5190 970?920?5198 (FAX) John.E1y@pitkincounty.com Laura.Makar@pitkincounty.com Atty. Reg. #14067 Atty. Reg. #41385 Atty. Reg. #45848 Case Number: 2016C?v ?3 129 (CA5884, W-791, W-791-77, 8ICW063, 85CW045, 89CW030, 95CWI87, 02CW19, 09CW145) Water Division No. 5 STIPULATION AND AGREEMENT BETWEEN APPLICANT CITY OF ASPEN AND OPPOSER BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY Applicant, the City of Aspen (?Aspen?) and Opposer Board of County Commissioners of Pitkin County (?Pitkin County?) by and through their undersigned attorneys, hereby stipulate and agree as follows. 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?). Pitkin County hereby consents to the entry of a Decree regarding the Castle Creek Pitkin Stipulation and Agreement Case No. 2016CW3129 Page 2 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?). Pitkin County 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 ofthe 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 ofthe Proposed Decree (?Original Decreed Location?). Prior to expiration of the 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 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). Should Aspen plan to divert the Castle Creek Reservoir Storage Right for storage in any ofthe New Reservoir Sites at a diversion point located on the mainstem of the Roaring Fork River, any such point of diversion on the mainstem of the Roaring Fork River shall be located of the confluence of Maroon Creek and the Roaring Fork River. This does not preclude Aspen from making diversions under the Castle Creek Reservoir Storage Right for storage in any of the New Reservoir Sites from Maroon Creek or Castle Creek. Aspen will provide the Change Application to Pitkin County for review no later than sixty (60) days before it is filed in the Water Court, in order to allow Pitkin County to confirm that it is consistent with this Stipulation and with the Final Decree. If no objection is made by Pitkin County or any other Opposer 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. lfPitkin County does not believe that the Change Application is consistent with this Stipulation and with the Final Decree, Pitkin County 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 Pitkin County shall cooperate in good faith to resolve their disagreement. Pitkin County, 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, Pitkin 2 Pitkin Stipulation and Agreement Case No. 2016CW3129 Page 3 County, 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. Pitkin County reserves the right to participate in any land use proceedings or other approval processes required for construction ofa 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 Pitkin County?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 Pitkin County?s approval. Aspen may not divert the Castle Creek Reservoir Storage Right through the Salvation Ditch system to ?ll any of the New Reservoir Sites without prior written consent from the Salvation Ditch Company or pursuant to other legal authority. 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 ofthe 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 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 Pitkin County 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 3 13. Pitkin Stipulation and Agreement Case No. 2016CW3129 Page 4 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 benefit 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 modified 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 ofthis Stipulation signed by the parties shall be treated as originals. Copies ofthe Change Application, Pitkin County?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 PC. 1600 Broadway, Suite 1070 Denver CO 80202 Pitkin Stipulation and Agreement Case No. 2016CW3129 Page 5 FOR OPPOSER PITKIN COUNTY: Pitkin County Attorney?s Of?ce 530 E. Main St., Ste. 301 Aspen, Co 81611 with a copy sent electronically to: attorney@pitkincounty.com 13. Pitkin County will remain a party to this case for the purpose of ensuring that any Final Decree entered herein is consistent with this Stipulation. 16. he 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: 5i,? KS ,2018. ALPERSTEIN Si COVEQ, P.C. PITKIN COUNTY OFFICE :Cove-ll. #101?69 Laura a to, #41385 ATTORNEYS FOR ATTORNEYS FOR BOARD OF COUNTY CITY OF ASPEN COMMISSIONERS OF PITKIN COUNTY