HomeMy WebLinkAboutresolution.council.067-12 RESOLUTION NO.
Series of 2012
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING EXECUTION AND PERFORMANCE OF A WATER SUPPLY CONTRACT
(CW 11006)BETWEEN THE CITY AND THE COLORADO RIVER WATER CONSERVATION
DISTRICT, AND SUPERSEDING RESOLUTION NO. 19 (Series of 2012)
WHEREAS, the City has pending water court applications in Case Nos. 05CW300 and
06CW54 (Water Court, Water Division No. 5) for the Aspen reclaimed water system, for certain
water rights for existing ponds, and for a plan for augmentation to augment out of priority pond
evaporation and diversions from the Aspen reclaimed water project; and
WHEREAS,the plan for augmentation contemplates that certain augmentation supplies be
provided pursuant to a Water Supply Contract with the Colorado River Water Conservation District
("River District"); and
WHEREAS, by Resolution No. 19 (Series 2012)the City Council approved execution and
performance by City Counsel of a Water Supply Contract CW 11006,which incorrectly provided that
the District would provide water from its Wolford Mountain Reservoir supply; and
WHEREAS, the City would be best served by a Water Supply Contract with the River
District that provides water primarily from its Ruedi Reservoir supply; and
WHEREAS,the River District has agreed to provide 30 acre-feet of fully-consumable water
from its Colorado River water supply and primarily from Ruedi Reservoir,pursuant to the revised
Water Supply Contract CW11006, which will be used to augment out of priority depletions as
provided in the plan for augmentation; and
WHEREAS, the revised Water Supply Contract must be executed by Aspen and the River
District in order to complete the plan for augmentation and obtain a final water court decree; and
WHEREAS,City staff and consultants have reviewed the revised Water Supply Contract and
have recommended that the City execute the revised Water Supply Contract substantially in the form
of Contract CW11006, which has been provided to the City Council; and
WHEREAS,City Council has had the opportunity to obtain such advice and information as it
deems appropriate and necessary regarding the proposed Water Supply Contract,
THEREFORE, BE IT RESOLVED, by the City Council of the City of Aspen, that this
Resolution shall supersede Resolution No. 19(Series of 2012),and that execution and performance
by the City of the revised Water Supply Contract between the City and the River District,
substantially in the form of Contract CW11006,is hereby approved. The Mayor,and City Clerk are
hereby authorized and directed to execute the revised Water Supply Contract and any related
documents necessary or desirable to effectuate the transactions provided for in the revised Water
Supply Contract.
Dated: ° 57/
APPROVED by the City Council of the City of Aspen on the 2j day of ,
2012.
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CW11006
WATER SUPPLY CONTRACT
This Contract is made between the COLORADO RIVER WATER CONSERVATION DISTRICT
(herein the "River District"), a political subdivision of the State of Colorado acting by and through its
Colorado River Water Projects Enterprise, and the CITY OF ASPEN, COLORADO (herein "Contractor")
effective as of the date of the River District's execution indicated below.
RECITALS
A. The River District is authorized to contract to deliver water for beneficial use from River District
water projects pursuant to provisions of C.R.S. § 37-46-101, et seq. (herein"River District Organic Act").
B. The River District is the owner and operator of the Wolford Mountain Reservoir Project located on
the Muddy Creek drainage near Kremmling, Colorado, having obtained necessary decrees from the District
Court in and for Colorado Water Division No. 5 (herein "Water Court") and permits from governmental
agencies, and the River District is entitled to deliveries of water from Ruedi Reservoir under its Contracts
with the U.S. Bureau of Reclamation.
C. The River District's Board of Directors has adopted a Water Marketing Policy, as revised by the
Board from time to time, to provide for the use of water available from the River District's sources of supply
pursuant to contracts, and that Water Marketing Policy is to be implemented through the River District's
Water Projects Enterprise.
D. Contractor has a need for wholesale water supply, demonstrated in its submittal to the River
District pursuant to the Water Marketing Policy's contracting process, in the amount of 30 acre feet annually
for municipal/industrial purposes, which beneficial uses will be accomplished by Contractor generally in the
vicinity of Pitkin County, Colorado, by surface water diversions from or within the Roaring Fork River
drainage, which is a tributary to the Colorado River.
E. Contractor is aware of the "Hydrology Assumptions" which are part of the Water Marketing Policy
and is satisfied, based on its review and investigations, that Contractor legally and physically can make use
for its intended purposes of the Contracted Water, which are the subject of this Contract and that such use will
comply with the Water Marketing Policy.
AGREEMENT
The foregoing Recitals are incorporated into this agreement between the River District and
Contractor.
DEFINITIONS
In this Contract certain terms will have definitions as stated below:
WATER SUPPLY CONTRACT CW11006
Page 2
• The "River District" means the Colorado River Water Conservation District
created and existing pursuant to the River District Organic Act defined in Recital
A and acting by and through its Colorado River Water Projects Enterprise which
is currently described and memorialized in the Resolution of the Colorado River
Water Conservation District's Board of Directors dated April 20, 2005.
• The "Project" meansthe River District's "Colorado River Supply" from: (1)
Wolford Mountain Reservoir, for which storage water right decrees were obtained
by the River District in Cases No. 87CW283, 95CW281 and 98CW237 in the
District Court for Colorado Water Division No. 5, and for which additional
storage water right decrees may be obtained in the future by the River District in
other cases; (2) the River District's contractual right to water deliveries from
Ruedi Reservoir; and (3) other supplies that the River District may acquire
suitable for use in its Water Marketing Program.
• "Agricultural" means the use of water for commercial production of agricultural
crops and livestock and other uses consistent with any right decreed for irrigation
purposes,which uses are made on a parcel of land of at least ten acres.
• "Municipal and Industrial" means the use of water by individuals, cities, towns,
public or quasi-public districts, private corporations, homeowners associations, or
other entities for domestic, municipal, and miscellaneous related purposes as
those terms are traditionally and commonly construed, including the use of water
for purposes of producing or processing a non-agricultural product or service for
sale, including without limitation, such uses as manufacturing, mining, milling,
land reclamation, golf course irrigation, snowmaking, and non-hydroelectric
power generation; and including the use of water for environmental mitigation
purposes associated with such uses; but excepting the agricultural use of water
defined herein.
• "Contracted Water" means the water which is the subject of this Contract which is
to be released and delivered by the River District and used by Contractor. The
Contracted Water is 30 acre feet of Colorado River Supply below the Roaring
Fork Confluence available during each Project Year during the term of this
Contract, subject to the provisions hereof, for Contractor's use without right of
carryover of any amount not used in any Project Year.
• "Project Year" means a period of time from July 1 through and including the
subsequent June 30.
• "Water Marketing Policy" means the River District's policy statement as revised
and readopted as of the execution date of this Contract and as the same may be
amended in the future.
WATER SUPPLY CONTRACT CW11006
Page 3
• "Project Hydrology Assumptions" or "Hydrology Assumptions" means the
document attached as Appendix "A" to the Water Marketing Policy adopted on
October 17, 2006.
1. River District Water Delivery Obligations and Responsibilities.
a. Delivery. The River District will deliver the Contracted Water at the outlet works
of the Contracted Water's sources of supply into the receiving natural streams in
quantities provided herein. Unless otherwise agreed to by the River District's
General Manager based upon written request of Contractor, the River District will
make releases or request that releases be made for Contractor, based upon
Contractor's written schedule of anticipated demand, adjusted as necessary by the
ongoing status of river administration vis-a-vis the priority status of Contractor's
diversions, provided that the releases can be made within the operational
limitations of the River District's project facilities as determined by the River
District in its sole discretion. Contractor shall be solely responsible after delivery
for the legal and physical delivery and use of the Contracted Water.
b. Delivery Contingencies. The River District's delivery of Contracted Water shall
be subject to Contractor's payments pursuant to paragraph 3 below, and the
provisions for curtailment of deliveries in paragraph 5 below.
c. Water Measurements. The River District shall measure at the outlet works of the
Contracted Water's sources of supply all Contracted Water and shall notify the
Division Engineer of Colorado Water Division No. 5 of the date, time and amount
of Contracted Water released pursuant to this Contract. Copies of such records
shall be provided to Contractor upon request.
d. Water Quality. The River District shall have no obligation to Contractor or any
other person regarding and makes no warranties or representations to Contractor
concerning the quality of Contracted Water delivered pursuant to this Contract by
releases of raw water to natural streams.
e. Maintenance of Facilities. The River District, to the extent that it has ownership
and maintenance control, shall use its best efforts-to-maintain in good working
condition the water storage and release facilities of the Contracted Water.
f. Withholding of Delivery. The River District may withhold deliveries of
Contracted Water in the event of Contractor's nonpayment for Contracted Water
or any other breach of this Contract by Contractor. Such remedy shall not be the
River District's exclusive remedy in the event of any such breach.
g. Delivery from Primary or Alternate Sources. The River District will deliver the
Contracted Water from the sources of Colorado River Supply below the Roaring
WATER SUPPLY CONTRACT CW11006
Page 4
Fork Confluence described herein, which will meet the Contractor's need to
satisfy calls by senior water rights or the Contractor's physical need for any direct
delivery of Contracted Water to Contractor's diversions. Subject to meeting those
objectives, the River District reserves the right to provide all or any of the
Contracted Water to Contractor from alternate reservoirs for Contractor's use,
provided that the alternate sources are suitable to physically satisfy calls by senior
water rights or Contractor's need for direct delivery.
2. Contractor's Water Use Obligations and Responsibilities.
a. Scheduling of Use. Contractor has provided the River District a preliminary
written schedule of its anticipated monthly demands for the Contracted Water
during the upcoming Project Year(July 2012 - June 2013). The schedule provided
by Contractor in its application for this Contract shall serve as the schedule to be
used until it is modified in a written notice given by Contractor to the River
District, or as necessary in response to river administration of the Contractor's
diversions. The schedule shall identify the volume of any Contracted Water
anticipated by Contractor not to be needed by it during any particular Project
Year. Contractor shall update said schedule periodically during the Project Year
as conditions require and give the River District written notice of all such
revisions.
b. Carriage Losses. Contractor shall bear carriage losses in such amount as is
determined by the Division Engineer for Colorado Water Division No. 5, from the
point of delivery of Contracted Water to Contractor's point(s) of use and/or
exchange or augmentation.
c. Use Per Contract and Law. Contractor's use of Contracted Water shall in all
instances be in accordance with the terms of this Contract, the permits and decrees
of the Project, the Water Marketing Policy, as it may change from time to time,
and in accordance with applicable law and all decrees related to the Contracted
Water. Contractor is not authorized to apply for or secure any change in the water
rights for or associated with any of the sources of supply of the Contracted Water.
d. Legal Approvals. Contractor shall at its sole expense adjudicate a plan or plans
for augmentation or exchange and/or secure administrative approvals of any
temporary substitute supply plans which are needed for Contractor to use its
Contracted Water. Any such plans shall identify Wolford Mountain Reservoir and
Ruedi Reservoir as the sources of supply. Contractor already has filed such an
application in Water Court, Water Division No. 5, Case No. 06CW54. If
necessary, Contractor shall amend the application to identify both of the River
District's sources of supply. If Contractor intends to make any additional
application(s) for any augmentation or exchange plan(s) or substitute supply
plan(s) needed for Contractor to use its Contracted Water, Contractor shall submit
the proposed application(s) to the River District within a reasonable time before
WATER SUPPLY CONTRACT CW11006
Page 5
Contractor proposes to file such application(s). The River District shall grant
written approval of such applications before they are submitted or filed, and the
River District's approval shall not be unreasonably withheld. The River District
may in its discretion become a co-applicant in the prosecution of any such
applications for the purpose of protecting its water rights and related policies.
Contractor shall cause to be included in any final decree of the Water Court a
provision conditioning Contractor's use of the Contracted Water on the existence
of a River District contract.
e. Limitation on Disposition.
i. Contractor shall not sublet, sell, donate, loan, assign or otherwise dispose
of any of its rights to this Contract or to Contracted Water without prior
written notice to, and the written approval of, the River District and the
payment of a transfer fee at the prevailing rate set forth in the Water
Marketing Policy. The River District's approval of such disposition shall
be granted in all instances in which the Contractor is transferring the water
system which supplies the Contracted Water, or a permanent transfer of
the Contract is to be made to a successor in interest of Contractor by
reason of the transfer of the title or other legal right to use the property
served by the Contracted Water, or where the transfer is made to an entity
such as a homeowners' association or special district created to serve the
property originally represented to the River District to be served with the
Contracted Water.
ii. The assignment of a Contract is subject to the Water Marketing Policy as
revised as of the effective date of the assignment. In accordance with this
subparagraph (ii), any assignee must pay for the Contracted Water at the
then-current price determined by the River District Board of Directors.
f. Contractor's Water Rates. Contractor may charge its water customers who are
supplied with Contracted Water such rates and charges as are permitted by
Colorado law.
g. Nondiscrimination. Contractor shall not discriminate in the availability of or
charges for any water service or water supply made available pursuant to or based
upon the Contracted Water on account of race, color, religion, or national origin
or any other criteria prohibited under state or federal law.
h. Accounting of Use. Contractor shall maintain an accounting of its use of all water
used or supplied by Contractor on form(s) acceptable to the River District
specifically for the purpose of enabling the River District to prove the use of
River District Project water rights and to administer and operate the Project and
water right decrees and/or administrative approvals related to Contractor's use of
Contracted Water. Contractor shall submit its accounting forms and records to the
WATER SUPPLY CONTRACT CW11006
Page 6
River District promptly upon request and shall assist the River District as it may
reasonably request in presenting and/or verifying such evidence of use in court or
before administrative agencies by testimony of Contractor or its authorized and
informed officers or agents.
Section 404 of the Clean Water Act (33 U.S.C. 1344) regulates the discharge of
dredged or fill material into the waters of the United States. Contractor shall
consult with the Army Corps of Engineers if construction of facilities necessary to
use the Contracted Water requires Section 404 compliance, which may include
obtaining a permit. Further consultation and approval by the United States Fish
and Wildlife Service may be required to ensure compliance with the Endangered
Species Act (16 U.S.C. 1531, et seq.) if Contractor proposes physical alterations
to the designated critical habitat of the Colorado River endangered fish species.
As of March 1, 2007, designated critical habitat exists from the Garfield County
320 Road Bridge Crossing of the Colorado River in Rifle downstream to the
Colorado State line.
3. Contractor's Payments.
a. In addition to the application fee already paid by Contractor, in order for the River
District's delivery obligation to become effective, Contractor shall pay to the
River District within (30) days of receipt of the River District's billing invoice the
total sum of $5,170.00, being $400 for the Statement of Opposition the River
District filed in Case No. 06CW54, Water Division 5, and $159.00 for each acre
foot of 30 acre feet of Contracted Water for the upcoming Project Year (July
2012-June 2013). Thereafter, the River District shall provide Contractor an
annual invoice for the Contracted Water, and Contractor shall pay the invoice
within thirty (30) days of receipt. The price for each type of water will be
reviewed and set annually by the River District's Enterprise Board of Directors
(which decision normally will be made prior to March 1 each year). Any annual
increase in the contract price shall not exceed the then-current published
Consumer Price Index(CPI) plus New Growth Index (NGI).
b. Contractor also shall pay any special assessment levied by the River District on
Contractor to recoup all or a portion of costs attributable to extraordinary
maintenance incurred by the River District or assessed upon the River District by
its third party water suppliers.
4. Contract Term.
a. Except in the event of an early termination or partial termination as provided for
in paragraph 6 below and subject to the other terms and conditions of this
Contract, the term of this Contract shall be for a period of up to forty (40) years
from the date of the execution of this Contract(through June 30, 2052).
WATER SUPPLY CONTRACT CW11006
Page 7
b. At the end of the 40-year term of this Contract (June 30, 2052), the Contractor
shall have the right to renew this Contract for the same Contracted Water amount
for a secondary term of thirty-five (35) years, upon such terms and conditions as
the River District is offering at that time, provided that the River District is
offering up the full amount of Contracted Water for lease. In the event that the
River District, on a non-discriminatory basis, decides not to offer up the full
amount of the Contracted Water for lease, Contractor shall have the right to renew
for a secondary term of thirty-five (35) years such lesser portion of the Contracted
Water as may be offered by the River District. If Contractor desires to so renew
this Contract, it shall provide the River District written notice of its intention to do
so at least ninety (90) days prior to the expiration of the initial term of this
Contract. Thereafter, and prior to the expiration of the initial term, the River
District and Contractor shall execute a supplemental agreement of renewal in a
form mutually acceptable to the River District and Contractor. If such notice of
intention to renew is not provided and such supplemental agreement is not
executed, no renewal term shall commence.
5. Water Shortage. In the event that the River District is unable, because of either legal or
physical reasons (including, but not limited to, hydrologic shortages and operational
restrictions), to deliver any or all of the full amount of water contracted from the Project,
including the Contracted Water, the River District reserves the right to apportion the
Project's available water among its several contractors, including Contractor, in the
manner provided in paragraph 6 of the Water Marketing Policy.
6. Contract Termination.
a. Termination by River District.
i. The River District may terminate this Contract for any violation or breach
of the terms of this Contract by Contractor, including Contractor's failure
to pay timely any sum or amount due under this Contract within thirty (30)
days after receiving written notice from the River District of such breach.
ii. The River District also may terminate this Contract if, in its discretion, any
judicial or administrative proceedings initiated by Contractor as
contemplated in subparagraph 2.d above, threaten the River District's
authority to contract for delivery of Project Water or the River District's
water rights,permits, or other interests associated with the Project.
iii. The River District may terminate this Contract if its legal ability to deliver
Contracted Water is materially impaired or is eliminated because of the
termination or adverse modification of permits, decrees or other
authorizations which are needed to deliver the Contracted Water.
WATER SUPPLY CONTRACT CW11006
Page 8
b. Termination by Contractor.
i. Contractor may terminate this Contract in its entirety for any reason by
giving the River District at least thirty (30) days advance notice prior to
the due date of Contractor's next annual payment.
ii. Every fifth year after the year in which this Contract is executed,
Contractor may partially terminate this Contract as to the amount of
Contracted Water by giving the River District at least thirty (30) days
advance notice prior to the due date of Contractor's next annual payment.
Partial termination by Contractor shall not exceed more than fifty percent
(50%) of the amount of Contracted Water which is then under contract.
iii. Within thirty (30) days of final approval of the Water Court application
contemplated by subparagraph 2.d. above, Contractor may by written
notice to the River District partially terminate this Contract as to the
amount of Contracted Water which is not needed under that approval.
c. Notice of Termination to Affected Officials. The River District will notify the
Division Engineer and any other appropriate governmental officials of any full or
partial contract termination except for any partial termination under subparagraph
6.b.(iii).
7. Force Majeure. The River District shall not be responsible for any losses or damages
incurred as a result of the River District's inability to perform pursuant to this Agreement
due to the following causes if beyond the River District's control and when occurring
through no direct or indirect fault of the River District, including without limitation: acts
of God; natural disasters; actions or failure to act by governmental authorities;
unavailability of supplies or equipment critical to the River District's ability to perform;
major equipment or facility breakdown; and changes in Colorado or federal law,
including,without limitation, changes in any permit requirements.
8. Miscellaneous/Standard Provisions.
a. Notices.
i. All notices required or appropriate under or pursuant to this Contract shall
be given in writing mailed or delivered to the parties at the following
addresses:
WATER SUPPLY CONTRACT CW11006
Page 9
River District:
Colorado River Water Conservation District
Attention: General Manager/Secretary
201 Centennial Street, Suite 200
P. O. Box 1120
Glenwood Springs, Colorado 81602
Phone: (970) 945-8522
Fax: (970) 945-8799
Contractor: with copy to:
David Hornbacher, Utilities Director Kerry Sundeen, Consulting Hydrologist
City of Aspen Grand River Consulting Corporation
130 S. Galena Street 718 Cooper Avenue
Aspen, CO 81611 Glenwood Springs, CO 81601
Phone: (970) 920-5110 Phone: (970) 945-2237
Fax: (970) 920-5117 Fax: (970) 945-2977
David.hornbacher @ci.aspen.co.us ksundeen(a�grandriver.us
and copy to:
Andrea L. Benson, Esq.
Alperstein&Covell, P.C.
1600 Broadway, Suite 2350
Denver, CO 80202-4921
Phone: (303) 894-8191
Fax: (303) 861-0420
alb@alpersteincovell.com
ii. Either party may, by written notice given in accordance with this
provision, change the address to which notices to it shall be mailed or
delivered.
b. Amendments. No amendment, modification, or novation of this contract or its
provisions and implementation shall be effective unless documented in writing
which is approved and executed by both parties with the same formality as they
have approved and executed this Contract.
c. This Contract is subject to the River District's Water Marketing Policy, as it may
be revised from time to time by the River District's Board.
WATER SUPPLY CONTRACT CW11006
Page 10
COLORADO RIVER WATER CONSERVATION
DISTRICT acting by and through its Colorado
River Water Projects Enterprise
DATE: 0 .7.6 I t, By:
R. Eric Kuhn, General Manager/Secretary
ATTEST:
Dan Birch, Deputy General Manager/Asst. Sec.
VERIFICATION
STATE OF COLORADO )
) ss.
COUNTY OF GARFIELD )
The foregoing Water Supply Contract was subscribed and sworn to before me by R. Eric
Kuhn as General Manager/Secretary and Dan Birch, Deputy General Manager/Assistant
Secretary of the Colorado River Water Conservation District, acting by and through its Colorado
River Water Projects Enterprise this 4 i�rit,day of 1{Sj" , 2012.
Witness my hand and official seal. My Commission Expires: 7—//' .:010/6.---
.�PFtYPVe 'h d4 i ■ 4
sorry Public
r LORRA
NICHOLS
My Commission Expires 0711112015
WATER SUPPLY CONTRACT CW11006
Page 11
CITY OF ASPEN, COLORADO
By:
M'4 -P(i. G . (e.( tFName)
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VERIFICATION
STATE OF001pn40 )
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COUNTY OF Pd-k;>\ )
The foregoing Water Supply Contract was subscribed and sworn to before me by
Zr p,v as y or this 01,S
day of 1(,4� , 2012. /
Witness my hand and official seal. My Commission Expires: 641 I T loi
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