Con?dential Settlement Communication protected by C.R.E. 408 Dra? 20180306 DATE FILED: August 28. 2018 2:52 PM DISTRICT COURT, WATER DIVISION NO. 5, E?ggGNagg/g? 12551125393639 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@a1persteincovcll.com; alb@alpersteincovell.com Attorney for Opposer Opposer Asp PrOperties, 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 Preperties, 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, Conc1usions 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 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 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 Grave! Quarry, andror Moore Open Space, or any other location or locations the parties have agreed to in writing (?New Reservoir Sites?). The general location of each 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 ofall 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 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 Opposers. If Asp does not believe 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 Speci?c provisions it believes to be inconsistent with this Stipulation or the inal 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 Stipulation and Agreement Case No. 2016CW3129 Page 3 land use proceedings or other processes required for construction of a reservoir(s) at any of the New Reservoir Sites. 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 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 ofsuch storage rights, does not exceed 8,500 acre-feet, and (3) the locations ofsuch 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 final decree changing the location of storage of all ofthe 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 deereed 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 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 rig .t 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 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? refeiral, 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 tees. 3 ll. 14. Stipulation and Agreement Case No. 2016CW3129 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 816} 1 With copy to Covell and Andrea Benson, Alperstein Covell P.C., 1600 Broadway, Suite 1070, Denver CO 80202 b. For Opposer Asp Properties LLC: With copy to Rhonda J. Bazil, Rhonda l. Bazil RC, 420 E. Main Street, Suite 240, Aspen CO 8161 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 Pages 17. The parties desire that this Stipulation be approved by and entered as an Order of the Court. Dated: 2013. ALPERSTEIN COVELL, P.C. RHONDA J. BAZIL, P.C. 4 \xw . By: F. Cover], #1016? By: W, #14921 Attorneys for City of Aspen Attorneys for Opposer Asp Properties, LLC