Loading...
HomeMy WebLinkAboutresolution.council.055-14 RESOLUTION #55 (Series of 2014) A RESOLUTION APPROVING AN AGREEMENT WITH THE COLORADO WATER TRUST FOR A 2014 PROGRAM TO IMPROVE STREAMFLOW CONDITIONS IN THE ROARING FORK RIVER WHEREAS, the City of Aspen currently has a water policy that directs staff to utilize the city's water rights in a manner which seeks to improve instream flow conditions; and WHEREAS, the City of Aspen has already taken steps to improve the habitat of the Roaring Fork River through the City of Aspen; and WHEREAS, the Colorado River Trust has requested that the City of Aspen look at which water rights it has which could be used to improve the instream flow in the Roaring Fork River; and WHEREAS, City staff and the Colorado Water Trust have identified the City's Wheeler Ditch water right as one that could be used for this purpose and have successfully utilized such rights for this purpose during 2013; and WHEREAS, when the minimum streamflow of 32cfs through the City of Aspen is not met, river habitat is at risk and the City desires to take this action to mitigate the risk and plan for any emergency need to supplement the flow by the forbearance of part of its Wheeler Ditch diversion; and WHEREAS, the Colorado Water Trust desires to implement the second year of the program for 2014 to have the City voluntarily curtail the flow of the Wheeler Ditch in order to improve the streamflow during such times; and WHEREAS, participation in the program, as set out in the Agreement attached as Exhibit A and incorporated by this reference, is consistent with the City's water policies and is in the best interests of the public. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: That the Aspen City Council approves the Wheeler Ditch Water Right Forbearance Agreement attached as Exhibit A and authorizes the Mayor to execute the same on behalf of the City. Dated: Steven Skadron I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held April 28, 2014. Kat On . Koch, City Clerk 2014 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT 111is 2014 W iEELER DIT'C'H WATER RIGFI'I' FORBI'ARANCI? AC,REEIIEN'1' (the "Agreement") is entered into this lay of _0k _ _ , 2014 by and between the CITY OF ASPEN, a Colorado home rule city ("Aspen"), and thel Coi3ORADO Wxn-,iR TRUST (the "Trust"), a Colorado non-profit corporation (collectively, the "Parties"). RECITALS A. Aspen owns the Wheeler Ditch, a water right more particularly described as follows (the"Water Right"): The Wheeler Ditch, decreed in Case No. 132, Garfield County District Court, on May 11, 1889, with Priority No. 44 for 10 c.f.s. for irrigation of land and also for stock, street, and domestic purposes in the city of Aspen, with an appropriation date of September 1, 1882. The original appropriator was the Aspen Ice and Water Company. The Water Right diverts from the Roaring Fork River in the heart of Aspen and is customarily used for irrigation and municipal purposes. B. The Trust is a Colorado nonprofit dedicated to restoring and protecting streamflows in Colorado through voluntary, market-leased efforts. The Trust uses all lawful tools to accomplish its mission, both in partnership with Colorado's Instream Flow Program and, where appropriate, separate from that program. The 'Trust has over a decade of experience in managing streamflow restoration projects. Aspen and the Trust have been in discussions about possible measures for local streamflow restoration and, in 2013, entered into a one-year pilot non-diversion agreement, a natural first step in the implementation of the ideas generated in those discussions. This agreement allows the Parties to build on the successes of the 2013 pilot non-diversion agreement. C. The Parties recognize that aquatic habitat in the Aspen reach of the Roaring Fork River, both upstream and downstream of the Water Right's point of diversion, is affected at certain times in average and dry years by streaniflows that fall below the decreed instrearn flow of 32 c.f.s. in that reach. Such streamflow shortages are the most significant during drought periods. The portion of the Roaring Fork River in the Aspen reach that is most significantly affected by such shortages is shown on Exhibit A, attached hereto and incorporated herein by this reference (the "Critical Reach"). The Critical Reach is defined as the section of the Roaring Fork River from downstream of the Salvation Ditch headgate to the confluence of the Roaring Fork River and Castle Creek. D. Both technical and biological analyses have determined that the Critical Reach can benefit from improved mid- to late-summer flows, and the Water Right is well-situated to provide most of the Critical Reach with a limited amount of water. Given that, Aspen desires to help restore flows to the Critical Reach this summer by entering into this Agreement. In the absence of this Agreement, the Water Right would be used by Aspen for its customary municipal purposes. E. Aspen desires to enter into this Agreement to set forth the terns and conditions of the Resolution adopted on _, 2014 that provides that, subject to the terms and conditions set Page I of 7-2014 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT forth in this Agreement, Aspen will forego diverting and/or using the Water Right in the amounts and under the conditions specified herein during the 2014 irrigation season. The Trust desires to enter into market- based aod voluntary arrangements. /\GD5EMCN7 Now therefore, for DuoJ and va|uah>c considcradun' the receipt and sufficiency of which are hereby acknowledged, the Parties agree asfollows: 1. Te . This Agreement is effective when signed and will be in effect during the 2014 irrigation season. The Agreement terminates on October 3l, 2()}4. 2. Trigge . Aspen will use the Water Right for its customary municipal purposes until the flow in the Roaring Fork River recorded at the OSG5 stream gage Roaring Fork Near Aspen, after subtracting the amount diverted by the Salvation Ditch, drops below 32c1y. ("Trigger"). Beginning the day that streamflows, as measured bv the Trust, their agents, or partners, fall below the Trigger, Aspen agrees to (u,*8o diversion of the Water Right in an amount commensurate to the abodoAe (the "Feathering Back"). For example, when the Uovv drops to 3-1 c.f.y.' Aspen will cease bz divert 1 cLo. of the Water Right. When it drops to 30 c.f.s., Aspen will cease todivert 2 c.f.s. of the Water Right. Thus, for each l c.f.s. the Trigger flow drops below 32 c.f.s., Aspen agrees to forego diverting and using a commensurate I c.f.s. of the Water Right for the remainder of the irrigation season ("Forbearance Period"). Aspen will continue the Feathering Back as needed to onabntabm the Trigger Omvv, until Aspen is diverting only l c(.s. at the beodgahe for delivery down ditch. This amount will continue to be used by Aspen for its cuytoonury ozurdcipu{ purposes. The Pordu* recognize that once the Feathering Back has reached a point at which only l c.f.s. is diverted into the Wheeler Ditch beadgate, Aspen will make no further forbearance ofdiversions, although the abemnd]ovv may he less than the decreed inmbeamo Dovv of 32 c.f*. bn the Critical Reach. 3. Payment. Aspen does not seek payment from the Trust for its forbearance pursuant to this 8grecouooL 4. Costs. The Trust shall pay all its own costs related to the implementation o/ the Agreement, including but not limited to attorney fees, engineering, and flow monitoring. Aspen shall pay its own costs related to implementation of the Agreement. 5. . The Parties agree that prior to implementation o( this Agreement, they will 'nbndy bold at least one public meeting to provide information about this Agreement to the public, including how the Agreement will heoperated, bow it will b* enforced, bow ii will benefit the Critical Reach,and other relevant matters pertaining to this Agreement. The Parties also agree that tbev will conduct outreach to other vvoher n*ezx that noayhu be buhercoheJ in this Agreement. Because dze operation of this Agreement will leave water in the river, the Parties do not anticipate any injury to other water users from its operation. b. . Aspen represents and warrants that: (a) The Water Right has been put to beneficial use during at least one of the lust ten Page 2vrr-zozo WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT irrigation seasons immediately preceding the 2014 irrigation year and to the best of Aspens knowledge has not had any significant period of nonuse; (b) Aspen is lawfully seized and possessed of the Water Right; (c) There are no lien holders or other parties with an interest in the Water Right who are required to consent to use of the Water Right under the terms of this Agreement and no parties who may place any claim to use any portion of the Water Right this irrigation season;and (d) Aspen has the legal authority and City Council authorization to enter into this Agreement. i. Grant of Irrevocable Limited License. Aspen hereby agrees to grant the Trust, its agents, and partners an irrevocable limited license to inspect the Water Right and associated infrastructure at reasonable times and with adequate prior notice in order to verify that Aspen is in compliance with the terms of this Agreement. The Trust shall provide Aspen with at least twenty-four (24) hours' notice before exercising the license rights granted under this section. During the term of this Agreement, the limited license for the Trust to access the property shall be irrevocable but upon termination of the Agreement, shall ternunate completely. The purpose of the Trust's access to the Property is for streamflow monitoring. This Agreement does not create any rights in the general public. tt. No Creation of a Formal Instream Flow Water Right• Trust to Enforce Terms of Agreement. Fhis Agreement will not create an instream flow water right through the conversion of an existing water right. Thus, the requirements and limitations of Colorado's instream flow laws do not apply. The Trust, however, will monitor and enforce this Agreement to ensure that when the Trigger flow is reached, Aspen begins the Feathering Back and continues to comply with this Agreement throughout the Forbearance Period. 9. Aspen's Reservation of Use Rights. Aspen reserves the right to divert the Water Right during the term of this Agreement due to critical need, such need to be defined by Aspen in good faith and at Aspen's sole discretion. To invoke this provision, Aspen shall provide the Trust with twenty-four hours' notice. As soon as the critical need has passed, Aspen agrees to return the Water Right to the river at in amount to be determined by the Parties, such amount to be informed by the Feathering Back methodology specified in Paragraph 2,above. 10. No abandonment. This Agreement does not indicate any abandonment or intention to abandon any portion of the Water Right whatsoever. H. Good Faith Discussions for Future Implementation. This Agreement, which will work outside of Colorado's Instream Flow Program as a private agreement between Aspen and the Trust, is the continuation of an initial experiment to help address instream flow shortages in the Critical Reach. If the 2014 implementation of the Agreement is successful, the Parties agree in good faith to continue to research, engineer, and conduct the technical analyses that will help them to assess the feasibility of more formal implementation of this Agreement, or another mechanism to help protect strearnflows in the Critical Reach. 12. Default. Aspen shall be in immediate default should it and/or its successors and assigns divert Page 3 of 7-2014 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT or use the Water Right in violation of this Agreement during the Forbearance Period. The failure of either party to comply with or fulfill any obligation under this Agreement within five (5) days after written notice by the other party specifying the nature of the failure to comply shall constitute a default. 13. Remedies. Specific performance shall be the sole remedy of this Agreement. 14. Attorney's Fees. If a suit, action, or alternative dispute resolution is instituted in connection with any controversy arising out of this Agreement or to enforce any rights hereunder, the Parties shall bear their own costs and fees associated with such proceeding. 15. Notices. Notices sent under this Agreement shall be in writing and sent by certified or registered mail, return receipt requested, postage prepaid to each party at: To the rust: Aniv Beatie, Executive Director Colorado Water Trust 1420 Ogden Street,Suite A2 Denver,Colorado 80218 To Aspen: David Hornbacher, Director of Utilities and Environmental Initiatives City of Aspen 130 S.Galena Street Aspen,CO 81611 Notices are deemed effective three (3) days after placement in the U.S. Mail. 16. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. 17. Assignment. Neither party shall assign its rights and obligations under this Agreement without the other party's prior written consent. 18, Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 19. Waiver. Failure of either party at any time to require performance of any provision of this Agreement shall not limit such party's right to enforce such provision, nor shall any waiver of any breach of any provision of this Agreement constitute a waiver of any succeeding breach of such provision or a waiver of such provision itself. 20, Amendment. This Agreement may not bk� modified or amended except by the written agreement of the Parties. This Agreement may not be modified or amended orally. 21. Severabili!y. If any term or provision of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Page 4 of 7-2014 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT 22. Integration. This Agreement contains the entire agreement and understanding of the Parties and supersedes all prior and contemporaneous agreements between them. Executed as of the date first set forth above. City of Aspen A Colorado homerule city Date: —Name: Title: c� The Colorado Water Trust A Colorado non-profit corporation Date:. 5 _ Amy . Beatie Execu ive Director Page 5 of 7-2014 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT NOTARIZATION STATE OF COLORADO ) ) ss. COUNTY OF The foregoing instrument was acknowledged before me on this day of 2014, by -as of the City of Aspen. Witness my hand and official seal. Notary Public My commission expires: STATE OF COLORADO ss. COUNTY OF The foregoing instrument was acknowledged before me on this day of 2014, by Amy W. Beatie as Executive Director of the Colorado Water Trust. Witness my hand and official seal. Noiary Public ALYSE r,4:% , kG Nota,, P-juiir My commission expires: State o: culofaao Notary IC 20134022579 M Commission Expires Apr 11., 2017 Page 6 of 7-2014 WHEELER DITCH WATER RIGHT FORBEARANCE AGREEMENT } k x J is 1ei4;af � �;x i ,�a<� a$?I* f a � � fir• Ar Fj "Yr „�., .