MEMORANDUM OF UNDERSTANDING AMONG THE CITIES
OF AURORA AMD

COLORADO

SPRINGS.

CONSERVATION DISTRICT.

AND THE VAIL

This Memorandum of Understanding

River Water Conservation District
of

the

("MOU")

NUMBER: 2017CW3064
is between the

("Cities")#

the Colorado

("River District"),

and the Vail

and Vail Associates,

Climax

Consortium consisting

Eagle River Water and Sanitation District,

Water Authority,
I.

("Climax"),

RIVER WATER
DATE FILED:
March 31, 2017 3:14 PM

CASE
CONSORTIUM

cities of Aurora and Colorado Springs
Molybdenum Company

COLORADO

CLIMAX MOLYBDENUM
FILING ID:COMPANY.
F783BF2B89B77

Inc.

Upper Regional

("Consortium") .

PARTIES .

A

B.

Cities

nf

Aurora

and

Colorado

Springs

("Cities").

Colorado River Water Conservation District

("River

District" )
C.

Climax Molybdenum Company

D.

Vail

Consortium consisting of Eagle River Water &

Sanitation District,
Authority,
The

Upper Eagle Regional Water

Vail Associates,

Inc.

Consortium and the River District

referred to as

II .

("Climax")

the

("Consortium").
are

collectively

"Reservoir Company."

OBJECTIVE .

A.

Develop a joint use water project
basin that

minimizes

effective,

technically feasible,

local,

in Upper Eagle River

environmental

is

cost

can be permitted by

state and federal agencies,

sufficient yield to meet

impacts,

and provides

the water requirements

of

project participants as hereinafter defined.
III.

PROCESS.

A.

Study four joint use project alternatives.
1.

Climax based alternative

2 .

Homestake

Creek based

(Exhibit

alternative

1) .

(Exhibit

2) .

s : \legal\mtp\water\aur-ca2 .tnou
1

Exhibit 2

 3 .

Climax reservoir with Camp Hale groundwater
recharge

4.

reservoir

3) .

Mixed Climax and Lower Homestake reservoirs
(Exhibit

B.

{Exhibit

4) .

Ruedi Reservoir Alternative
In addition to the

four alternatives

identified above,

interest has been expressed by certain parties

in

undertaking a preliminary analysis of the feasibility
of

an alternative

that utilizes

a pump back from Ruedi

Reservoir to the Boustead Tunnel.
be performed.

only the

C.

That analysis will
to further discuss not

but

can appropriately serve as a substitute

for

remaining al ternati ven ,

Scope of

1.

agree

feasibility of such an alternative,

whether it
the

The parties

Study.

Hydrology

(yield) .

The parties have prepared a

spreadsheet model of
to simulate

operations

components.
records

the upper Eagle River basin
of

from key gages

streamflows

selected project

The model uses daily streamflow
to estimate divertible

at numerous

"Study Period"

Specifically,

is

1945

points

in the basin.

through 1994

the hydrological

(50

The

years) .

investigations

will

include :

a .

Defining desirable projects
patterns

for the parties

and demand

and identifying

project yields.
b.

Modifying the operations model to reflect
various demand patterns by the parties and
reflect the project configurations.
Estimating the yield

c .

configurations.
compare project
d.

of

to

various project

The yields will be used to
costs.

Preparing a memorandum which defines project
yield and the demands by the project

s:\legal\mtp\water\aur cs2.raou

 participants,

describes the operations model,

presents the results of the model runs,

and

presents the alternative configurations,
including delivery options and potential
delivery limitations.

2.

Technical

feasibility and cost.

portion of
cost

the

study will

estimates of project

configurations at
This means

In general,

include

construction

components and various

a reconnaissance grade

that the

this

studies

level .

would be conducted

using available information and site
reconnaissance.
other more

Drilling,

materials testing and

intensive efforts are not included at

this level .

Specifically,

the technical

estimate will

include:

a .

Compiling geological

feasibility/cost

maps,

reports

and other

documents with information relevant

to the

site selection of storage and diversion dams,
pumping plants and pipeline corridors.

b.

Reconnoitering the project area,

the

reservoir sites and pipeline corridors
identified to date by a geologist or
geotechnical engineer and design engineer.

c .

Preparing reconnaissance
construction cost

level

estimates of

components and configurations.

designs

and

the project

Multiple

estimates for a given component may be needed
depending on

the capacity of

a given

conf iguration .
d.

Recognizing and describing

any fatal

structural

would inhibit

conditions

that

construction of a project

e .

flaws

or

the

component.

Preparing a memorandum which describes

the

investigations and presents the cost
estimates

for the project components and

configurations.

Yield estimates developed by

the hydrologic model will be developed for

s : \legal\mtp\water\aur-cs2 .raou
3

 each configuration so that the construction
costs

can be compared on a dollars per acre-

foot basis

for both dry and average year

yields .

3.

Environmental

impacts

environmental

investigations will

and permitting.

The

include identifying

wetlands and the costs of mitigating the damage
wetlands

for each alternative .

possible environmental
qualitatively unless

Additionally,

to

other

impacts will be identified

costs

for mitigating such impacts

can be estimated.

Specifically,

the environmental

investigations will

include:

a .

Compiling

reports and other documents with

information relevant

to existing wetlands,

threatened and endangered species and water
quality

b.

in

the vicinity of

the project

components.

Identifying and quantifying wetlands areas

field reconnaissance and aerial

from

photography for

each project component.

c.

Estimating

using

the

cost

the Camp Hale

The costs will

of

mitigating wetland areas

area as

a mitigation site.

consider a unit rate

in dollars per

acre.

d.

Identifying

other environmental

with each component,
easily converted

to a

issues associated

some of which may not be
cost,

such as visual

impacts •

e .

Identifying potential
fish and wildlife

f .

Preparing

a

benefits

for recreation,

in a qualitative

sense.

memorandum which describes

the

investigation and presents the impacts for each
component

4 .

Report .

The

as

well

as

for each configuration.

information and conclusions developed by

the hydrological ,

engineering and environmental

investigations described above will be summarized
s : \legal\mtp\watec\aur cs2 .mou

in a

 report and presented to the participating entities.

The report will contain comparisons of the alternatives
in graphical and tabular form so that
can be compared.
technical

Additionally,

permitting and

review requirements will

summarized as

a

the alternatives

be

identified and

section in the report.

This

will

allow

the participating entities and the public to be
informed about all
requirements

of

the

federal,

for developing

state and local

the proposed joint use

project.
A preliminary environmental analysis for those

alternatives depicted on Exhibits

2 and 4 as referenced

in Section III has identified potentially significant

environmental

concerns associated with wetland

inundation along Homestake

Creek and encroachment

wilderness

found

lands.

If

it

is

that

there are

upon

less

environmentally damaging practicable alternatives,

either of
permit.

these

two alternatives

Hence,

evaluated,

may prove difficult

to

though these alternatives will be

they will

not be considered,

in view of

current knowledge and based upon the current
configurations

alternatives
D.

therefore,

the

for purposes of

leading or preferred

this MOU.

Study Parts and Time Frame.
1.

Part

1 of

the

study will

feasibility of

by July 1,
2.

a .

Part

identify and rank

the alternatives

--

the

to be completed

1997.
2

of

the

study will

requisite level
environmental
Project as

detail

required to
for Phase 1

identified

and support

target date

the

of engineering and

permit applications

below,

develop

the

initiate
of

in Section

IV.C.1

issuance

thereof,

for completion of

the

the

this part

The
will

be determined by Climax and the Reservoir

b.

Company in consultation with the

Cities.

Part

the

3

of

the study will

requisite level

of

environmental detail

permit applications
s : \legal\mtp\water\aur cb2 . raou

develop

engineering and
required to

initiate

for subsequent project

the

 phases as identified in Section IV. C. 2 and
Subject to the

support the issuance thereof.
below,

terms of Section III.C.4

the target

date for completion of this part will be
after

determined by the parties

identification of the feasibility of the

c.

study will

Part 3 of the

of

1

alternatives under Part

the

study.

also identify any

water right applications that may be
necessary to support

the

desired

alternatives .

3.

the study will develop the requisite

Part 4 of

level of engineering to prepare detailed design
specifications

for the issuance of construction

This part will

contracts .

be

following

completed

permitting and necessary water rights
adjudication.

4 .

The parties acknowledge that there may exist
differences

schedules under which each of

in the

the respective entities may desire to develop the
subsequent phases of the project and bring the
The

yield therefrom into their water systems,

parties further acknowledge their inability to
guarantee that

the requested shelf life of permits

for the project phases will be obtained,
parties,

therefore,

party desires

at

agree that

to proceed with the permitting and

construction of a project beyond phase

party shall

The

such time as one
I,

such

the participation of

in writing,

seek,

the remaining parties in such undertaking,
accordance with the provisions

parties shall

have

any such request

90 days

of

all

this MOU.

in

The

in which to respond to

to participate,

To

the extent

any remaining party does not elect to proceed at
that

the party requesting such participation

time,

may proceed independently of
regard to the
provided,

the others with

identified subsequent phase;

however,

that

the

remaining parties

shall be under no obligation to contribute money,
land,

completed

infrastructure,

water or water

rights to such subsequent project phase or
participate

s:\legal\mtp\water\aur csS.mou

in the

ditch and

reservoir company

 identified in Section VII with respect
subsequent project phase.

foregoing,

to such

Notwithstanding the

the remaining provisions

of this MOU

shall remain in effect.
E.

Study Cost Sharing
1.

Part 1

-- Cost of outside engineering consultants

jointly retained by the parties will

by the CitieB,
Consortium,

25% by Climax,

and 25%

maximum of

$10,000

be

split

by the River District
each.

25%

25% by the
up

Each party to pay

to a
for

the costs of their own consultants.
2 .

Parts

2

and

consultants
split

3

--

Cost

of outside engineering

jointly retained by the parties

according

t-o percentage

of

project

to be

yield

to

be acquired by the parties.
IV.

YIELD.

A.

Definition.

1.

Firm dry year yield
of years during

2 .

Average yield

--

available in the 25% driest

the Study Period.

--

available

for

diversion on a

25

year rolling average.
B.

Requirements .

1 .

Reservoir Company

--

up to 10,000

acre

feet of

firm dry year yield.

2 .

Cities
yield

--

up to an average

that

is

available

25 year rolling

3 .

C.

average,

of

20,000

and diverted

plus

as allowed under Paragraph

Climax --

up to

acre

feet

of

for use on a

such additional

increment

3,000

acre

feet of

IV.C.3.d.

storage space.

Project Phasing.
1 .

Project

Phase

Foot Dam 4

1

that

--

Reclaimed existing

is anticipated

s : \legal\mtp\water\aur-ca2 .mou
7

3,148

to provide

acre

2,013

 acre feet of firm dry year yield.

Water from the

East Fork of the Eagle River will be delivered to
Dam 4 by a pump and pipeline

located within or

upstream of Section 32, T. 7S., R. 75W. of the 6th
P.M.,

with a capacity no greater than 6

per second.

cubic feet

This phase will be purchased by,

all yield will be available to,

and

the Reservoir

Company .

2 .

Phase 2

--

The Reservoir Company and the cities

shall jointly have the right
50/50 basis,
yield up

the next

to 2000

to develop,

increment of

acre

feet.

The timing

construction of such increment
the provisions of

agree

Paragraph

shall

be

III.D.4.

Phase 2 be
year yield,
cities

acre

but less than 4000

shall have the right

the entire
feet.

this phase.

in excess of 2000

feet

to

to the
Should

feet,

first

firm dry
the

refusal to

increment of yield above 2000 acre

Any project which yields

acre

subject

feet of

acre

of

and

The cities

to subordinate their water rights

Reservoir Company share, of

on a

firm dry year

in excess of 4000

shall be considered a

project phase"

as

"subsequent

further identified in Paragraph

IV.C.3 .

3.

Subsequent

a .

At

Project

Phases

the time of

the development of

project phases,
following the
a

completion of phase

firm dry year yield in excess of

feet,

the Reservoir Company shall

right of

first

subsequent

defined herein as any project

refusal

to purchase

I which has
4000
have

acre
a

any

additional project yield over and above
realized under phases

I

and

II

up

maximum Reservoir Company yield as
in paragraph

its

IV.B.l

share of

hereunder.
first

refusal

entitlement
this

shall

to

to

yield as
In making

additional

subparagraph,

s : \legal\mtp\water\aur-ca2 .mou
8

have a right of

to the remaining yield up

Paragraph IV. B. 2.
of

identified

proportion

the total yield contemplated
The cities

the maximum cities'

under

in direct

that

to the

the

identified

to

in

the calculation
project yield
yield realized

 by the parties in Project Phases 1 and 2
shall be taken into account in determining
the proportion of

additional yield to which

each party is entitled.

b.

Subject
above,

to the limits of

section IV.B.l and 2

any unexercised first

refusal

rights

shall be made available to the other project

participants.

The foregoing rights of

refusal shall only be applicable

initial

to

first

the

subscription of an increment of

project yield as

Thereafter,

it becomes

any parties'

yield shall be

available.

Bhare of project

freely assignable.

If Climax reclaims Robinson Reservoir and
such

facility is a component of the

project,

feet

of

Climax shall

storage

retain up

joint

to 3000

use

acre

space in any enlargement

of

Dam 4 .

c .

At

the time of

the completion of construction

and the commencement of operation of
subsequent phases,

shall

also have

the option to purchase

the cities

the cities'

Phase 2

the project,

of

been constructed,

acre

feet at

assuming such has
maximum of

the price per acre
for

1000

foot of yield

such phase,

The

shall be based upon the total planning,

engineering,
costs
at

from

portion of yield from

up to a

paid by the parties
price

the

the Reservoir Company

permitting and construction

for Phase

the

date of

2

of the project

purchase

for

as

adjusted

inflation based

on

the ENR Index for water resource projects

or

the most nearly identical

index then

published.

d.

To

the

extent

chooses
water

that

the Reservoir Company

not to exercise

its option to acquire

in an amount over and above

realized under Phases

1 and 2,

utilize

such yield to the

extent

release

for the Reservoir

Company

West

Slope entities or uses

Company)

one acre

s : \legal \mtp\water\aur-cs2 . mou
9

foot

of

that

the cities may
that

they

(or other

identified by the

water

for each acre

 foot delivered to the cities in excess of the

20,000 a/f rolling average referenced in
Paragraph IV.B.2.

D.

Interim Supply.

In the event the construction of the subsequent phases
of

the

Project prevents

the use of water from Phase

by the Reservoir Company,

1

then during such construction

the Cities shall make available to the Reservoir
Company an amount of water equal

to the displaced use.

Such interim supply shall be made available

from

Homestake Reservoir or other facility acceptable to the
Reservoir Company up to a maximum amount

of

2,013

acre

feet annually/
V.

PERMITTING.

A.

Phase

1 Permits.

shall

make

Climax and the Reservoir Company

application

and local permits

project.

for the necessary federal,

required to develop phase

1

state

of the

Such applications shall proceed independent

of any applications

for the subsequent phases of the

project,

initiated at

and may be

Climax and

connection with

shall

be

any time desired by

the Reservoir Company.
such application,

submitted

However,
a copy of

in
this MOU

to any permitting authorities.

The

Cities agree not to oppose land use applications for
phase

B.

1 .

Subsequent

Sections
shall

Phase

III.C.3

make

Permits.

Subject

and IV. C. 2

application as

and 3

to the provisions
above,

co-applicants

of

the parties
for

the

following permits required to construct any subsequent
phases of the project.
1.

Federal permits which may be sought
project

for individual

phases.

a .

Army Corps of

b.

Forest Service Special Use Permit which shall
include a

U.S.

Engineers

section 7

Section 404

consultation with the

Fish and Wildlife Servicee.

s ; \legal\mtp\water\aur-cs2 .mou
lo

Permit.

 In any event,

the parties shall

cooperate

federal permitting and review process

in the

in an effort

to ensure that each party realizes the project
yield contemplated hereunder.
2.

State permits which may be sought for individual
project

3.

phases.

a .

Section 401 Certification.

b.

State Engineer design approvals.

Eagle County Land Use Permit which shall be

sought

for the

In

entire project

in one

application,

connection with the application for such land use
permit the parties shall seek the following:
a .

A permit

with a shelf

life of no

years with acknowledgment

less

than

25

that work on one

project phase constitutes work on the entire
project.

If constructed within the term,

then the permit would be granted in
perpetuity.

b.

The waiver of any financial

security or

filing fee.

c .

Limited cross
federal permit

enforcement of

any state

requirements such

that

or
local

requirements will be met by satisfaction of
any overlapping state and federal
requirements .
d.

Agreement by the County that:

(1)

the parties'

analysis of the project

alternatives under this Memorandum of
Understanding satisfies

explore additional
(2)

the need to

alternatives;

the work of the Eagle River Assembly
shall

satisfy the requirement

determine the parties'

a : \lagal\mtp\water\aur-cs2 .mou
tl

to

water needs,-

 the regulation of groundwater levels

(3)

the parties'

and

water rights shall remain

within the exclusive jurisdiction of the
State Engineer and Water Court;
the

(4)

and

joint use project need only meet

existing decreed

instream flow levels

in

affected stream reaches.

Meetings with the County and all parties

e .

to

identify concerns and mitigation
requirements .

4 .

The parties,
pursue

as co-applicants,

such permit approvals,

shall

diligently

including

cooperation in the preparation of

supporting

written materials and the presentation of oral
testimony.

5.

The parties acknowledge

that

all

alternative

scenarios cannot be foreseen in detail at
time,

and therefore

agree

that

the

this

coordination

and cooperation contemplated hereunder shall

apply

to any project configuration or feature which the
parties subsequently agree
of

the alternatives

to substitute for one

(or components thereof)

set

forth herein.

6.

To the extent
participate

any party exercises

in a

Paragraph III.D.4,

as

such party shall

support any application that

the

its

subsequent phase

terms of this MOU.

7.

in

is consistent

Such support shall

in any permit proceedings,

require any financial

to

nevertheless

of providing favorable testimony and
support

right not
referenced

with

consist

letters of

but

shall

not

contribution.

Should the Reservoir Company fail to meet

its

obligations hereunder to support the applications
for permit

approvals,

the

obligation to subordinate
referenced in Paragraphs

cities

shall

have no

their water rights
IV. C. 2

and VIII. A. 3,

as
or

to continue the exchange referenced in Paragraph
VIII. B. 3,

If

contested by the Reservoir Company,

such determination of
B:\legal\mtp\water\aur cs2.mou
12

failure shall be made

 through the

filing of an action in the Denver

District Court,

Denver,

Colorado.

The dates of filing the foregoing applications under this
Section V B.

shall

be

the

subject of

future negotiations

among the parties.
VI .

CLIMAX

FACILITIES .

In the event the enlargement of Dam 4 is identified in phase
1 of the study as one of the 2 most feasible alternatives,

then during the Part 2
shall

seek to reach an agreement with Climax regarding the

enlargement
VII.

study outlined above the parties

of Dam 4

and

the use of water therefrom.

DITCH AND RESERVOIR COMPANY.

A.

Formation.
of

a

In the event

the parties pursue development

joint use water project

in the Upper Eagle

River

basin,

then the parties will form a nonprofit mutual
ditch and reservoir company pursuant to § 7-42-101 et

£££[.,

C.R.S.

(Project Company),

or such other legal

entity as mutually agreeable to the parties,
hold record title to all
facilities,

water rights,

shall

easements or any other appurtenances or

personalty comprising the

the Project

that

land,

Company is

joint use water project.

formed,

If

the Project

Company will

issue shares of stock which will represent

the yield of

the joint use water project.

Shares of stock will be

issued to Project Company shareholders
portion to the amount of
shareholder.

to

Separate

in direct

such yield acquired by any

classes

of

stock will

be created

the extent necessary to recognize Vail Associates'

preferential
rights
under

of

rights

Paragraphs

series

of

to the yield of phase

1

and the

the Reservoir Company to the yield realized
IV. C. 2

and 3.

stock may also be

Moreover,

created to

the

separate
extent

necessary to differentiate between dry year and average
year yield.
B .

Structure .

1.

The precise

structure of

the Project

Company or

other legal entity shall be the subject of future

s:\legal\Tntp\water\aur-cs2.mou.
13

 negotiations among the parties,

If a ditch and

reservoir company is the chosen vehicle to carry
out

the objectives of

this MOU,

the articles

incorporation and/or bylaws shall,

at a minimum,

contain provisions which address amendment
articles,

the

sale

establishment of
of assessments,

manner

as will

of

of

the

company assets,

the board of directors,
and the voting of

shares

the
in

levy
such a

ensure

the equitable treatment of

minority shareholders

and the continued delivery

of water to such shareholders

their
2.

of

shares

in proportion

to

in the company.

Regardless of the legal

entity chosen,

the

formation agreement shall provide that no party
shall

object

of water

in Water Court to another party's use

from the project by direct use,

augmentation,

exchange,

replacement or

substitution;

provided,

however,

provision shall not prevent
filing

a

statement

any other

of

that

this

a party hereto

from

opposition in Water Court

aspect of an application.

to

Likewise,

this provision shall not limit any party in the

exercise of its governmental
there

shall

be

functions.

Moreover,

no restriction on the place

of

use

within Colorado.
VIII.

WATER

A.

RIGHTS.

No Opposition.
Requirement

Subject

to the Replacement Water

defined in VIII. B below,

the parties

agree

to either withdraw their statements of opposition to or
not oppose
1.

the

following water rights applications.

Climax/ Consortium application as amended in
Division No.

5

Case No.

92CW340

for the Eagle

Park

Reservoir storage right and East Fork Pump Back
Facility.
2.

Consortium application in Division No.
95CW348
Eagle

3.

regarding

5

Case No.

the exchange of water rights

Park Reservoir.

Reservoir Company application to be filed in
Division No.

5

to change

s : \legal\mtp\water\aur-cs2 .mou
14

80

c.f.s.

of

the

Pando

to

 Feeder Canal water right to storage in Eagle Park
Reservoir,

year.

up

to a maximum of

By virtue of

3,148

acre feet per

this application and the

exchange in Case No.

95CW348, the Cities recognize
that up to 3,148 acre feet of water can be stored
annually in Eagle Park Reservoir (sufficient to
produce a firm annual yield of 2013 acre feet)
senior to

the

priority of

the Cities'

Camp Hale

and Homestake II project water rights.

(Colo.

Springs)

The Cities

also agree to subordinate the

Eagle Arkansas project water rights at

the East

Fork diversion site to the foregoing use of the
Pando Feeder Canal .

The agreements

of

this

paragraph are contingent upon the acquisition of
phase 1 of the project by the Reservoir Company.
4 .

Climax application in Division No.
92CW233

and

92CW336

regarding

and quantif ication of
5.

its

5,

Case Nos .

the readjudication

senior water rights.

The Cities'

applications in Division No.

No.

and 95CW272,

88CW449

provided that

5

Cases

the River

District may continue participation as a technical
resource and consultant

to Western Slope Opposers

in those cases regarding issues of groundwater
availability; stream/ aquifer relationship,
including steam depletions
aquifer recharge;

from well pumping and

and project water rights

administration and accounting.
B.

Replacement Water Requirement which shall be contingent
upon the Reservoir

Company's acquisition of

phase

1

of

the proj ect .

1.

In the event a joint use project is not developed
by the parties and the Cities develop their Eagle
Arkansas Project,

the Reservoir Conpany will

provide up

acre

to

150

Green Mountain,
Reservoirs

Cities)

feet

of water per year from

or Wolford Mountain

(or another source

acceptable

to the

to replace the reduction in yield to the

Eagle Arkansas

1

Ruedi

Project

of the project.

s ! \legal\mtp\wat er\aur-CB2 .mou
IS

from the

operation of

phase

 2,

In the event a joint use project is not developed
by the parties

and the Cities proceed to

independently develop the Camp Hale Project
No.

88CW449) ,

(Case

the Reservoir Company will provide

up to 225

acre

Mountain,

Ruedi or Wolford Mountain Reservoirs

feet of

water per year from Green

another source acceptable to the Cities)

(or

to

replace the reduction in yield to the Camp Hale
Project from the operation of phase 1 of the
project.
3.

The

parties will

extend the existing three year

agreement between the City of Aurora and the

Consortium for a period of 25 years.

The

Reservoir Company and the City of Colorado

will be parties

to the

agreement,

Springs

and during

that

period the Reservoir Company will annually provide
a minimum of

800

af of water from Green Mountain,

Ruedi or Wolford Reservoir water,

source acceptable to the cities,

or another

for 500

annual Homestake Reservoir releases.

af

of

The cities

and the Reservoir Company will jointly seek to
exchange the 800

af of water to the Homestake

Project or to other acceptable diversion
facilities

including the Twin Lakes project

the Blue River project.

water will be available
through October of

The 800

acre feet

for the

water by June

each year.

The Reservoir

each year.

adjusted at

will inform the cities of
releases

Though this

a subsequent

date,

it

the general pattern of

intended reservoir releases.
reservoir

tentative

release of Homestake Reservoir

30th of

schedule may be

of

for exchange from June

Company will provide the cities with a
schedule

and

The rate of

may be varied no more often

than once per week.

The maximum rate of

release

will not exceed 8 cubic feet per second during the
period extending from October 1st through April
30th.

If

the parties,

to obtain water court
operation of

such an exchange,

their discretion,
referenced in this

s : \legal\ratp\water\aur-cs2 . mou

acting jointly,

approval

are unable

for the long term
the

cities

terminate the agreement
paragraph.

may,

in

 4 .

There shall

be an annual accounting of the amount

of water exchanged to the cities

and of the

amount

of Homestake Reservoir water released to the
Reservoir Company.

If during any 10 year rolling

average period,

the cumulative amount of water
released to the Reservoir Company exceeds the
amount

of water exchanged to

the

cities,

the

parties agree to examine various means by which

the cities can be made whole,
through which the

cities

i.e.,

receive

arrangements

an amount

of

water equal

to that which has been released for

the benefit

of the Reservoir Company.

examination will
limited to,

include,

Such

but not necessarily be

an assessment of the feasibility of

annual

releases

excess

of

from Wolford Mountain Reservoir

800

acre

feet,

than 500 acre

feet

to the Reservoir Company

or the

release of

years where such releases are not

in

less

in

found necessary

to meet water demands .
5.

Should a court of competent
that

jurisdiction determine

the Reservoir Company has breached the

provisions of
constitute

this MOU,

just cause

such breach shall

for the termination of

above-referenced exchange.

Should there be

the
no

breach of this MOU and the water court approves
the long term operation of the exchange
contemplated hereunder,
shall have,

subject

the perpetual
referenced
25 years,

right

at

the following conditions

to extend the exchange

in paragraph VIII. B. 3
and at

the

period thereafter.
that

to

the Reservoir Company

the

end of

each

for an additional
twenty-five year

The Reservoir Company agrees

end of the 25 year period commencing

with the first

release of water for the benefit

of
the Reservoir Company under the provisions of this
MOU, it shall make any modifications in the
arrangements referenced in paragraph viii.b.4 as
are determined necessary to ensure that the cities
will receive the full amount of
in the

future based upon a

average .

8 : \legal\mtp\wafcer\aur-cs2 .mou
11

replacement water

ten year rolling

 In the event a joint use project

6.

the parties,

there

is developed by

shall be no replacement

water

requirement .

C.

Water Quality,
the

Dam 4

Any water delivered or released from

facility,

including any expansion thereof,

shall be of a quality which will
beneficial

uses made

interference shall

point

of diversion,

with the

this MOU.

D.

Joint

state or local

Project,

statute

the yield of

the

for

established by
or regulation.

the parties pursue

use project,

cooperate to utilize

to maximize

as

In the event

development of a joint
shall

at the

storage or exchange by the cities,

then existing water quality standards

Use

cities

Such determination

be based upon compliance,

designated or classified uses
federal,

interfere with the

of waters developed by the

under the provisions of
of

not

then the parties

following water rights

the subsequent phases of

the

project:
1.

Division No.

5 Case No.

enlargement of Eagle

2.

Division No.
Hale

3.

93CW301 regarding

the

Park Reservoir.

5 Case No.

88CW449

regarding the Camp

Project.

River District's

remaining Red Cliff Project water

rights not previously committed to the Bolts Lake
Project .

4 .

Division No.

Cities'
5 .

5

Case No.

95CW272

regarding the

Eagle River conjunctive use project.

The water rights

set forth in VIII A. 1,2, 3

and 5

above .

6 .

The

cities pursuant

to Case No.

and Case Nos.

Court,

85CW583,

1193,

18

85CW582,

5.

as may be necessary to

the chosen alternative.

\legal\mtp\water\aur cs2.mou

Eagle County

85CW151,

Water Division No.

Such other applications

effect

s :

rights held by the

District
and

7 .

remaining conditional

 Such cooperation shall

include participation as co-

applicants in any required water court
provided,

however,

applications;

that this provision shall not constitute

an encumbrance or obligate a party to continue the existence

of the foregoing water rights.
D.

Excess Water Rights.

Upon the

development of

the full project

provided for in Section IV. B. 2.

above,

dedicate to the joint use project all

for the Cities

the Cities

shall

of its remaining

Eagle River conditional water rights or dedicate such
rights for nonconsumptive uses, such as environmental
mitigation.

There shall be no additional diversions
the cities under these rights and no transfer of the
rights for UBe out of the basin.

IX.

to

PROJECT COST SHARING.

During Phase

2 of the

an agreement

regarding

construction,

study,

the parties

the sharing of

shall

costs

Beek to reach

for the

operation and maintenance of the

subsequent

phases of the project.
X.

MUTUAL

COOPERATION.

The parties

agree to discuss on an annual basis means to
utilize Eagle Park Reservoir or other Reservoir Company
facilities

in conjunction with the

then existing Homestake

Project or other facilities owned by the Cities,

exchange or otherwise,

through

for the mutual benefit of the

parties .
XI.

SUCCESSORS AND ASSIGNS.

The

provisions of

upon,

the

this MOU shall

successors

and assigns

assignments of interest

apply to,
of the

and be binding

parties

hereunder shall be

notification thereof promptly provided to all

s :\legal\mtp\wacer\auc-ca2 .mou
1»

hereto.

in writing,
parties.

Any

with

 XII.

EXECUTED

COUNTERPARTS

This MOU may be

signed in separate original

counterparts,

all of which shall be consolidated to make a single
contract .

City of

By.
Date

Colorado Springs

7

ms.

City of Aurora

By.
Date

Colorado River Water Conservation
District

By.
Date

Climax Molybdenum Company

By.
Date

s:\legal\mtp\water\aur cel. raau
30

 XII.

EXECUTED COUNTERPARTS
This MOU may be signed in separate original
counterparts,
all of which shall be consolidated to make a
single
contract .

City of Colorado Springs

By.
Date

City of Aurora

~V
By.

ATT

CL.. . /( '

Paul E. Tauer, Mayor

J

<Z'!>Z"iV

Date

Approved as to Form:

Colorado River Water Conservation
District

By.
Date

Cypress

By.
Date

9 s \legal\racp\wacar\aur-cfl2 .mou
29

Climax Metals Company

 XII.

EXECUTED COUNTERPARTS

This MOU may be signed in separate original counterparts,
all of which shall be consolidated to make a single
contract .

City of Colorado Springs

By.
Date

City of Aurora

By
Date

// -

r0 -

Colorado River Water Conservation
District

By.
Date

Climax Molybdenum Company

By.
Date

a ; \legal\mtp\watoc\aur-cs2 .mou
20

 XII.

EXECUTED COUNTERPARTS

This MOU may be signed in separate original counterparts,
all of which shall be consolidated to make a single
contract .

City of Colorado Springs

By.
Date

City of Aurora

By.
Date

Colorado River Water Conservation
District

ATTEST:

By.
RICHARD ERIC KUHN

Date

}/

SECRETARY / GENERAL MANAGER

Climax Molybdenum Company

By.
Date

s r \legal \mtp\water\aur -cs2 .mou
2D

 XII.

EXECUTED COUNTERPARTS

This MOU may be signed in separate original
all

of which shall be consolidated to make a

counterparts,
single

contract .

City of Colorado Springs

By.
Date

City of Aurora

By.
Date

Colorado River Water Conservation

District

By.
Date

Climax Molybdenum Company

By

Date

a : \legal\ratp\water\aur-ce2 .tnou
20

/

 Eagle River Water and Sanitation
District

By.
Date

Aor i 1

21.

1998

Upper Eagle Regional Water
Authority

7

Date

April 21, 1998

Vail Associates,

Inc.

By

Date April 21, 1998

This Memorandum of Understanding is dated effective as of April
21, 1998.

s i \lagal\BEp\vat:«E\«ur-cs2 .sou
21