HomeMy WebLinkAbout10132RESOLUTION NO. 10132
A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN AND
AMONG THE CITY OF PUEBLO, THE CITY OF AURORA, THE SOUTHEASTERN COLORADO
WATER CONSERVANCY DISTRICT, THE CITY OF FOUNTAIN, THE CITY OF COLORADO
SPRINGS, AND THE BOARD OF WATER WORKS OF PUEBLO, COLORADO, AND
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID AGREEMENT
WHEREAS, the City of Pueblo ( "City" or "Pueblo "), the Board of Water Works of Pueblo,
Colorado ( "Board "), the City of Aurora, the Southeastern Colorado Water Conservancy District, the
City of Fountain, and the City of Colorado Springs ( "Colorado Springs ")(collectively, the "Parties ")
have negotiated an Intergovernmental Agreement, a true copy of which is attached hereto (the
"Intergovernmental Agreement "), whereby said Parties agree to the Arkansas River Flow
Management Program established under that certain intergovernmental agreement dated March 1,
2004 between and among Pueblo, Colorado Springs and Board (the "March 1st IGA "); and
WHEREAS, the Agreement of the Parties in the Intergovernmental Agreement is intended
to satisfy the requirements of Paragraph VIII.B of the March 1st IGA; and
WHEREAS, in an effort to maintain and protect water flows in the Arkansas River, to further
the purposes and goals of the Arkansas River Corridor Legacy Project, and to obtain a
recreational in- channel diversion ( "RICD ") water right, the City Council finds and determines that
the Intergovernmental Agreement is in the best interest of the City and furthers the health, benefit,
and welfare of its citizens. NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Intergovernmental Agreement between and among Pueblo, the City of Aurora, the
Southeastern Colorado Water Conservancy District, the City of Fountain, Colorado Springs, and
the Board, in substantially the same form and with substantially the same content as the copy
attached hereto is hereby approved; provided however, that neither this Resolution nor any
provision of the Agreement shall constitute, nor be deemed to constitute, an obligation of future
appropriations by the City Council, nor a general obligation or other indebtedness or multiple - fiscal
year direct or indirect City debt or other financial obligation within the meaning of Article X, §20 of
the Colorado Constitution or other debt limitations under law.
SECTION 2
Upon and subject to prior approval of the Intergovernmental Agreement by all of the other
parties thereto, the President of the City Council is hereby authorized to execute the
Intergovernmental Agreement, in substantially the same form and with substantially the same
content as the copy attached hereto, for and on behalf of the City, but with such minor changes,
modifications, additions or deletions therein as the President of the City Council and the City
Attorney shall deem necessary, desirable or appropriate in the best interests of the City, and the
City Clerk is directed to affix the seal of the City thereto and attest same.
INTRODUCED May 24, 2004
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Background Paper for Proposed
RESOLUTION
AGENDA ITEM # ZZ
DATE: May 24, 2004
DEPARTMENT: Law Department
TITLE
A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT
BETWEEN AND AMONG THE CITY OF PUEBLO, THE CITY OF AURORA, THE
SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT, THE CITY
OF FOUNTAIN, THE CITY OF COLORADO SPRINGS, AND THE BOARD OF
WATER WORKS OF PUEBLO, COLORADO, AND AUTHORIZING THE
PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAID AGREEMENT
ISSUE
Should the Council approve the multi -party IGA under which additional cities and
entities agree to the Arkansas River Flow Management Program?
RECOMMENDATION
The Law Department recommends approval.
BACKGROUND
On March 1, 2004, Pueblo, Colorado Springs and the Pueblo Board of Water Works
entered into an intergovernmental agreement ( "March 1 IGA ") which essentially
provided the following key elements: (1) the exercise of senior water rights by
Colorado Springs and the Board would be reduced as necessary under a legally
enforceable program to provide minimum flows in the Arkansas River through
Pueblo of at least 100 cfs year round and increased flow amounts, up to 500 cfs,
between March 16 and November 14 (this is referred to as the "Flow Management
Program "), (2) Colorado Springs and the Board would stipulate to a Recreational In-
Channel Diversion ( "RICD ") water right decree in the water court (both parties have
now so stipulated), (3) that Pueblo and the Board would take certain actions in
support of Colorado Springs' development of the SDS Pipeline, and (4) that Pueblo
would support the federal legislation allowing the Southeastern Colorado Water
Conservancy District's Preferred Storage Options Plan ( "PSOP ") to go forward.
To protect Pueblo, the March 1 IGA provided that Pueblo was not required to
support the SDS Pipeline or PSOP legislation until and unless Aurora, Fountain,
Southeastern, and the Colorado Canal Companies also agreed to the Flow
Management Program within 90 days. The specific provision from the March 1 IGA
which addressed this states:
Pueblo's obligations under Section IV and V shall become effective only
upon the contractual agreement of the District, the City of Aurora, the City of
Fountain, and the Colorado Canal Companies to the Flow Management
Program within 90 days of the Effective Date [March 1, 2004]. If any of the
District, the City of Aurora, the City of Fountain, or the Colorado Canal
Companies does not so agree, then any of the Parties may terminate this
Agreement by providing written notice of such termination to the remaining
Parties. If the Agreement is terminated by any of the Parties, all obligations
of any kind herein contained are also terminated. Alternatively, the Parties
may, by mutual written agreement, continue operating underthe terms of this
Agreement for a specified period of time.
By this provision, the March 1 IGA is voidable if the required conditions are not met.
The multi -party IGA now before Council is the vehicle by which Aurora, Fountain and
Southeastern have agreed to the Flow Management Program. The Board approved the
multi -party IGA on May 18, 2004 and Southeastern approved it on May 20, 2004.
Consideration of approval is scheduled by the City of Aurora on May 24 and by Colorado
Springs and Fountain on May 25.
Although the Colorado Canal Companies have not directly agreed to the Flow
Management Program, Aurora, Fountain and Colorado Springs, which collectively own in
excess of 86% of the shares in the Colorado Canal Companies, have by the IGA bound
their water rights and shares in the Colorado Canal Companies, as well as shares they
may aquire in the future, to the Flow Management Program, in substantial compliance with
the March 1 IGA'.
The Colorado Canal Companies ( "CCC ") are not anticipated to sign on to the Flow Management Program in
their corporate capacity. However, the Cities of Aurora, Colorado Springs, and Fountain collectively own over 86% of
the shares of stock in the CCC. Each of those entities has, in the IGA, bound their shares (currently owned and any
acquired in the future) and water rights in the CCC to the Flow Management Program. The remainder of the shares are
owned by individual farmers (approximately 10 %) and various public entities such as Crowley County, Lower Arkansas
Valley Water Conservancy District, and the Towns of Olney Springs, Sugar City, Ordway, and Woodland Park, for a total
of approximately 4 %.
The individual and small public entity shareholders have requested an exemption from the Flow Management
Program. They are concerned with the reduction in yield to their water rights should they seek in the future to exchange
those rights upstream into Pueblo Reservoir. With respect to the individual farmers, the subordination required by the
Flow Management Program could be interpreted to have an adverse impact on the potential market value of the shares
for sale to municipalities (other than the three parties to the IGA). The articles of incorporation and bylaws of the CCC
prohibit the companies from taking actions that would adversely affect the water rights held by any individual
shareholder. Therefore, the majority shareholders cannot vote to impose the Program on the others. Because, however,
the cities owning the overwhelming majority of the shares have agreed to the Program, and are the most likely to acquire
in the future the shares owned by individual farmers, Pueblo counsel believe that this constitutes substantial compliance
with the requirements of the March 1 IGA.
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The multi -party IGA also sets forth arrangements between the other parties designed to
mitigate the loss of water yield resulting from the subordination of their senior water rights
to the Flow Management Program. For the most part, those arrangements do not affect
the City of Pueblo, although Pueblo retains the right to participate in those matters to the
extent necessary to protect the Flow Management Program.
Finally, the multi -party IGA sets forth a framework for the parties to settle numerous
pending water cases, including Pueblo's RICD case, consistent with the multi -party IGA.
One of the requirements of this agreement is that any such settlement may not allow
Aurora to transfer any water outside the Arkansas River basin beyond what is permitted
by a settlement agreement entered by Aurora and Southeastern in 2003.
FINANCIAL IMPACT
Staff believes the approval of the multi -party IGA will substantially reduce the City's costs,
attorney fees, expert witness fees and other litigation expenses in protecting the Legacy
Project and obtaining the RICD decree.
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INTERGOVERNMENTAL AGREEMENT AMONG
THE CITY OF PUEBLO, THE CITY OF AURORA,
THE SOUTHEASTERN COLORADO WATER CONSERVANCY
DISTRICT, THE CITY OF FOUNTAIN, THE CITY OF
COLORADO SPRINGS, AND THE BOARD OF WATER WORKS OF
PUEBLO, COLORADO
This Intergovernmental Agreement ( "Agreement ") is entered into by and among
the City of Pueblo, a municipal corporation ( "Pueblo'), the City of Aurora, Colorado,
acting by and through its Utility Enterprise ( "Aurora "), the Southeastern Colorado
Water Conservancy District ( "the District "), the City of Fountain ( "Fountain "), the City
of Colorado Springs ( "Colorado Springs "), and the Board of Water Works of Pueblo,
Colorado ( "the Board "). Together these entities are referred to as the "Parties."
RECITALS
A. This Agreement is entered into pursuant to sections 29 -1- 201 -203 C.R.S. Each of
the Parties is a political subdivision of the State of Colorado within the meaning of
section 29 -1- 202(2) C.R.S., and therefore each is a government within the meaning
of section 29 -1- 202(1). Pueblo, the City of Aurora, Colorado Springs and Fountain
are home rule cities pursuant to Article XX of the Colorado Constitution. The
District is a Colorado Water Conservancy District established under section 37 -45-
101 et seq., C.R.S. The Board is established by the charter of the City of Pueblo,
which was adopted pursuant to Article XX of the Colorado Constitution.
B. This Agreement is based upon principles of comity and the desire for cooperation
among the Parties.
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C. Pueblo Reservoir and dam ( "Pueblo Dam ") are features of the Fryingpan- Arkansas
Project ( "Project') constructed by the United States Bureau of Reclamation
( "Reclamation ") pursuant to Congressional authorization. Public Law 87 -490.
D. The Parties acknowledge that the development and adoption into law of certain
recommendations of the September 21, 2000 "Preferred Storage Options Plan"
( "PSOP ") report relating to the Project are important to many municipalities and
agricultural interests in the Arkansas River Basin and to Aurora.
E. In partnership with the United States Army Corps of Engineers, Pueblo has begun
construction on the Arkansas River Corridor Legacy Project ( "Legacy Project ").
The Legacy Project is intended to restore riparian habitat and provide enhancements
to improve recreational opportunities in and along the Arkansas River through
Pueblo. To help achieve the Legacy Project goals, Pueblo desires to protect and
enhance the flows and the quality of the water in the Arkansas River through
Pueblo.
F. In furtherance of the Legacy Project, Pueblo filed an application for a recreational
in- channel diversion ( "RICD ") water right in Case No. 01CW160 (Water Division
No. 2.) The District, Aurora, Colorado Springs, Fountain, and others, have opposed
the requested RICD water right. If and when decreed, the RICD water right will be
junior to the currently decreed water rights for the Project, to many of the currently
decreed water rights of the Parties, and to certain water rights for which
applications are pending.
G. The valid, legal exercise of the existing decreed senior water rights of the Parties
and certain water rights for which applications are pending may adversely impact
Pueblo's ability to accomplish its goals for the Legacy Project and the requested
relatively junior RICD water right.
H. Each of the Parties has independent goals and interests, and this Agreement has
been developed and is intended to further such respective goals and interests,
subject to the terms and conditions of this Agreement.
The Parties desire to work cooperatively to require all owners of senior water rights
from the Arkansas River downstream of Pueblo Dam, the lawful exercise of which
rights diminishes the flow in the Arkansas River in the Legacy Project reach,
including the District, Aurora, and Fountain, to accept and comply with the
Arkansas River Flow Management Program and the RICD flows provided for in this
Agreement, provided that the Parties also, in the spirit of comity and cooperation,
devise and operate methods and facilities as hereinafter described that mitigate
adverse impacts to senior water rights and to certain water rights for which
applications are pending.
J. Other agreements among various of the Parties have previously been reached
concerning issues related to those addressed herein, including the following:
1. The Parties, other than Aurora and Fountain, are signatories to the document
entitled "Arkansas River Water Preservation Principles," dated September 29, 2003;
2. Pueblo, the Board, and Colorado Springs have entered into an Intergovernmental
Agreement dated March 1, 2004 (the "March 1 51 IGA "), that addresses numerous
issues of concern among those parties;
3. Aurora and Pueblo entered a stipulation dated November 25, 2003 in Case
No. 99CW169 (Water Div. 2), that includes, among other things, the commitment of
each of those parties to negotiate in good faith thereafter concerning several of the
primary matters addressed in this Agreement;
4. Aurora and Colorado Springs entered into a stipulation dated November 6, 2003,
in Case No. 99CW169 (Water Div. 2), that includes, among other things, the
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agreement by Aurora not to divert with the "Changed Water Rights" the quantity of
water left in the "Exchange Reach" by Colorado Springs when Colorado Springs
forgoes the exercise of its exchange decrees in order to provide water to the
Exchange Reach and the agreement by Aurora and other PSOP participants to
negotiate in good faith with the City of Pueblo concerning the City's request for
additional flow conditions on the PSOP and on Aurora's change of water rights;
5. Aurora and the Board entered into a stipulation dated November 5, 2003, in
Case No. 99CW169 (Water Div. 2), that includes, among other things, the
agreement by Aurora (1) not to divert with the "Changed Water Rights" the
quantity of water left in the "Exchange Reach" by the Board when the Board
forgoes the exercise of its exchange decrees in order to provide water to the
Exchange Reach; (2) not to divert any water delivered by the Board to the Exchange
Reach under an agreement with the City of Pueblo; and (3) the agreement by Aurora
and other PSOP participants to negotiate in good faith with the City of Pueblo
concerning the City's request for additional flow conditions on the PSOP and on
Aurora's change of water rights; and
6. Aurora and the District entered into an Intergovernmental Agreement dated
October 3, 2003 ( "Aurora/District IGA ") that addresses numerous issues of concern
between those two parties, which has also led to the entry of several stipulations to
settle each other's opposition in water cases; provided, however, that nothing in this
Agreement is intended to supercede or modify any provision of the Aurora/District
IGA.
K. Each of the Parties are the owners and beneficiaries of absolute and conditional
water rights that were lawfully acquired and are entitled to be recognized and
protected. In addition, each of the Parties are signatories to and beneficiaries of
numerous operating agreements and stipulations, the burdens and benefits of which
must be enforced and protected. Through this Agreement, the Parties intend to
resolve differences concerning outstanding water rights applications, and thereafter
to assure that their respective interests pursuant to these decrees and operating
agreements are respected and protected;
L. The Parties recognize that the imposition of burdens and responsibilities and the
vesting of benefits pursuant to this Agreement do not occur simultaneously. It is
the purpose of this Agreement to assure that the Agreement permits each Party to
secure its expected benefit in exchange for bearing the full extent of its
corresponding burden. It is also recognized that some benefits will be irrevocably
granted as part of the consideration for this Agreement. Notwithstanding the final
and binding nature of this Agreement, the Parties understand and agree that the
circumstances and conditions that have led to this Agreement may change and there
is a recognition of this possibility and a commitment to negotiate in good faith if
any Party believes that circumstances and conditions have substantially changed
and that, as a result, an alteration of the prospective rights and obligations imposed
by this Agreement is appropriate.
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AGREEMENT
NOW, THEREFORE, and in consideration of the mutual agreements herein
contained and for other valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
I. Arkansas River Flow Management Program
A. Exhibit 1 to this Agreement, the Arkansas River Flow Management
Program ( "Flow Management Program "), shall apply to (1) all exchanges
of water rights of the Parties, regardless of when initiated or decreed, and
(2) changes of water rights from points of diversion below the existing
"Above Pueblo Gage" which changes are decreed on or after November 3,
1986, except for the decree in Case No. 84CW179, entered on
November 10, 1987, and made final on November 10, 1990, that reduce
flows in the Arkansas River in the river segment between the Above
Pueblo Gage and the confluence of the Arkansas River and Fountain
Creek. Such exchanges or changes of water rights owned, used or
operated by the Parties are collectively referred to in the Flow
Management Program and in this Agreement as the "Subject Exchanges."
The Parties shall operate the Subject Exchanges in accordance with the
provisions of the Flow Management Program. The Parties shall work
together, cooperate and take such further actions as may be reasonably
necessary to ensure that the Subject Exchanges are operated in accordance
with the provisions of the Flow Management Program, including if
necessary, consultation with and administration by the Colorado Division
of Water Resources. The terms "reduce" and "reduction" as used in the
Flow Management Program and in this Agreement with reference to the
Subject Exchanges may include the complete cessation of a Subject
Exchange on a temporary basis, as may be necessary to satisfy obligations
created under the Flow Management Program and this Agreement.
B. The Parties recognize the respective rights of one another to exercise their
water rights in accordance with legally entered, existing decrees. The
Parties fully intend to take all necessary measures to recover and
beneficially use the water associated with any Foregone Diversions, as
defined in Paragraph II.A., and no Party intends to abandon a water right
by entering this Agreement. No Party shall claim or support claims that
the reduction by any other Party of a Subject Exchange for purposes of the
Flow Management Program constitutes abandonment of a water right.
C. Nothing in this Agreement shall prevent any Party from applying for new
or enlarged water rights in the future, subject to Colorado law governing
priority and appropriation dates.
D. The Parties recognize that the Colorado Legislature has sanctioned a
variety of temporary water supply arrangements that may be included
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within the current understandings and agreements of the Parties. These
arrangements include: (1) Water bank operations pursuant to C.R.S. §37-
80.1 -101 et seq.; (2) dry -year lease arrangements pursuant to C.R.S. § §37-
83 -106 and 37 -42 -135; (3) interruptible water supply agreements pursuant
to C.R.S. §37 -92 -309; (4) exchanges pursuant to C.R.S. §37 -80 -120; and
(5) short -term trades pursuant to C.R.S. §37 -83 -105. The Parties
recognize that these temporary water supply arrangements may be
required because of drought conditions or other circumstances and that
they may occur pursuant to the terms of this Agreement and any other
applicable existing agreements, so long as the arrangements are operated
in conformity with the requirements of the Flow Management Program
and so long as they can be operated within the terms of the relevant
agreements, decrees, and Colorado law.
E. Pueblo shall not in the future request further reductions in the Subject
Exchanges based on any enlargement of east slope Project reservoirs as
recommended in the PSOP, or for increased dilution of point source
effluent flows.
II. Restoration of Yield
A. In order to achieve the goals described above, the Parties will cooperate to
provide for the recapture and storage for later use of all water, the in-
priority diversion or exchange of which is annually foregone in order to
accommodate the Flow Management Program ( "Foregone Diversions ").
Downstream diversion and storage facilities to recapture and store
Foregone Diversions must be located downstream of the Combined Flow
Location as identified in Exhibit 1 hereto. Downstream storage for
recapture of yield ( "ROY Storage ") should have, at a minimum, sufficient
capacity to capture, store, and release the Foregone Diversions so as to
permit the exchange of that water into Pueblo Reservoir or other upstream
locations when river conditions and the Flow Management Program so
allow.
B. The ROY Storage program shall be designed to assure that all of the
Parties hereto are afforded the means and opportunity to recapture
Foregone Diversions and to apply those water rights to decreed beneficial
uses.
C. The contemplated ROY Storage can include, as example and without
limitation, (1) the construction of lined gravel pit storage near the
Arkansas River upstream from the headgate of the Colorado Canal; (2) the
use, to the extent legally permissible, of any Party's individual
shareholder account in the Colorado Canal Companies to store water in
Lake Meredith; (3) the use, to the extent legally permissible, of a pump
and pipeline to deliver water to and from any Party's individual
shareholder account in Lake Meredith; and (4) other off - channel storage.
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D. The participants in ROY Storage (Colorado Springs, the Board, Aurora,
Fountain, and the District) ( "ROY Participants "), through the ROY
Planning Subcommittee described in Paragraph II.F, will agree upon
(1) the method to estimate the number of acre -feet of Foregone Diversions
resulting from the Flow Management Program; (2) any additional quantity
of storage desired by each ROY Participant; and (3) will thereafter agree
upon a participation percentage in any ROY Storage Project.
E. When the ROY Participants have agreed upon their respective percentage
participation in any ROY Storage Project, the ROY Participants will then
agree upon the cost allocation for their participation percentage in the
ROY Storage project.
F. The ROY Participants will establish a ROY Planning Subcommittee of the
Flow Management Committee described in Exhibit 1 that will undertake
cooperative investigations and planning activities designed to identify the
most cost effective means to accomplish the ROY Storage objectives of
this Agreement and will make recommendations to the ROY Participants.
Each ROY Participant may have two members on the Subcommittee.
Pueblo may have one member on the Subcommittee. The Subcommittee
will act by consensus.
G. Each ROY Participant is entitled to choose to participate in a ROY
Storage project at a level it deems necessary but in no event will a Party's
decision regarding participation or non - participation relieve that Party of
its other obligations under this Agreement.
H. Prior to the construction and operation of ROY Storage, the ROY
Participants recognize that interim solutions are necessary to protect their
ability to have water available above Pueblo Dam. In furtherance of that
goal, the ROY Participants commit to seek the establishment of a ROY
Storage account in Pueblo Reservoir and to operate the account in
accordance with the following principles.
As soon as possible after the Effective Date of this Agreement, the
District will initiate the process to secure an annual "if and when"
storage account in Pueblo Reservoir by contracting with
Reclamation for purposes of ROY Storage and storage of water for
"softening" purposes as described in paragraph III.D.2.b of the
Aurora /District IGA (the "Account "). By January 1 of each year,
the ROY Participants shall notify the District of the amount of
ROY Storage desired for the coming year. Each ROY Participant
will pay the District for its share of the storage space leased for
ROY Storage purposes, such share being based on the amount of
benefit the Participant expects to receive from the Account, as
determined by the ROY Planning Subcommittee.
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2. The District will operate the Account and maintain the records of
the water delivered into and withdrawn from the Account. The
ROY Participants will pay the District for its services at a rate
agreed to by the District and the ROY Participants.
3. During the remainder of 2004 and during 2005, the ROY
Participants agree to collectively fund the Account to insure that at
least 5,000 acre -feet of water are in storage for ROY Storage
purposes at the beginning of 2006. Water used to fund the Account
cannot be Project water.
4. To the extent that "if and when" storage space is available in
Pueblo Reservoir, the ROY Participants agree to continue to fund
the Account until December 31, 2010 at a rate sufficient to
maintain a balance in the Account of at least 5,000 acre -feet of
water at the start of each calendar year. The ROY Participants will
use their best efforts commensurate with the critical importance of
these water resources to fund their pro rata share of the estimated
ROY Storage. Water used to fund the Account cannot be Project
water. The exercise of any Subject Exchange to fund the Account
shall be subject to the Flow Management Program.
5. During 2006 and each year thereafter, any of the ROY Participants
may call for the release (including movement of water up stream)
of water in the Account sufficient to recapture their Foregone
Diversions caused solely by the recreational flow components of
the Flow Management Program (e.g., flows in excess of 100 c.f.s.)
6. At the end of each year, the ROY Participants will review the
accounting records to determine the amount of water contributed by
and withdrawn by each ROY Participant in the Account during the
preceding year. If any ROY Participant has withdrawn more water
from the Account than it has contributed to the Account, that
Participant will pay the contributing Participant(s) for the net
amount of water withdrawn at the then prevailing rate for non -
Project raw water leased to non - agricultural entities in the
Arkansas River Basin. The affected ROY Participants can also
agree to a like -kind exchange of water for repayment purposes.
The payment for water to be made no later than 30 days after the
determination of the exceedance. If no prevailing rate is identified,
the ROY Planning Subcommittee will establish a reasonable rate
for the use of water.
7. The Parties recognize that, in early years, funding may be
disproportionately provided by one or more ROY Participants and
that withdrawals may be made disproportionately by other ROY
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Participants. The details of such disproportionate funding and
withdrawals will be addressed by the ROY Planning Subcommittee.
8. The primary purpose of this subparagraph H is to provide a bridge
for the ROY Participants between the time when the requirement to
forego exchanges or diversions arises because Pueblo's whitewater
boating course has been substantially completed and the time when
ROY Storage is completed. The ROY Planning Subcommittee will
agree upon and maintain accounting for Foregone Diversions as the
basis for determining withdrawals from the Account.
9. Once ROY Storage is completed or December 31, 2010, whichever
occurs first, the use of the Account in Pueblo Reservoir will be
discontinued for ROY purposes unless the ROY Participants acting
through the ROY Planning Subcommittee agree to its continued
operation. After ROY Storage is completed or December 31, 2010,
whichever occurs first, no Party can be required to continue to
participate in the ROY Storage in Pueblo Reservoir. After 2010,
each Party shall be free to agree and contract with other Parties or
other entities not party to this Agreement for continuation of the
use of the Account upon mutually acceptable terms.
I. To the extent that the ROY Participants agree upon a ROY Project and an
allocation of costs for their respective participation, then each such
participant will use good faith efforts to fund its respective share of the
costs. Likewise, to the extent that the participants in a Regional Water
Management Program, described below in Section VI, agree upon a
specific program, each participant will use its good faith efforts to fund
such a program commensurate with the benefits received by the
participant. In no event, however, does this Agreement require a Party to
appropriate funds for a particular purpose or create debt or multi -year
fiscal obligations for any Party.
III. Preferred Storage Options Plan
A. Support for PSOP Legislation. Following execution of this Agreement,
the Parties shall request Members of Congress from Colorado to introduce
and support federal legislation in a form substantially similar to that
attached hereto as Exhibit 2, and dated September 19, 2003, except as
identified in Paragraph III.B. No party shall request Congressional
changes to the legislation unless such changes are mutually agreed to by
the Parties.
B. Incorporation of Flow Management Program. The District, with the
mutual support of the other Parties, shall take all reasonable steps to
ensure that the proposed PSOP legislation considered by the U.S.
Congress provides for consideration by the Secretary of Interior
( "Secretary ") of the Flow Management Program, as incorporated herein,
consistent with the Secretary's consideration of the PSOP Report.
C. Permits, Contracts and Authorizations. The Parties shall not knowingly
or intentionally take any actions to impair or impede the ability of a Party
to obtain the necessary permits, contracts and /or authorizations for the
excess capacity contract components of the PSOP from Reclamation,
Pueblo County, or any other governmental entity; provided, however, that
nothing in this Agreement shall preclude the Parties from responding to
requests for information from governmental entities, or commenting on
issues of concern unrelated to the Legacy Project and the quantity of
Arkansas River flows through Pueblo, and not in conflict with the spirit of
this Agreement.
IV. Arkansas Valley Conduit. The Parties shall support the proposed Arkansas
Valley Conduit or Pipeline utilizing outlet works on Pueblo Dam and related facilities
to provide quality drinking water to communities downstream of Pueblo. Colorado
Springs Utilities Board has previously passed Resolution UO3 -1 in support of this
project. The nature and extent of future support will be determined by the respective
governing bodies of each Party, consistent with existing agreements.
V. Excess Capacity Contracts
A. Colorado Springs and Aurora have requested, and Fountain and the
District anticipate requesting, long -term (10 years or longer) excess
capacity storage contracts from Reclamation for the use of excess storage
and conveyance capacity of east -slope Project facilities to store and
convey non - Project water for municipal, water banking, and other
beneficial uses ( "Long -Term Excess Capacity Contracts ").
B. Subject to the terms of this Agreement, no Party shall knowingly or
intentionally take any actions to impair or impede the request of any other
Party for a Long -Term Excess Capacity Contract; provided, however, that
nothing in this Agreement shall preclude any of the Parties from
responding to requests for information from governmental entities, or
commenting on issues of concern unrelated to the quantity of Arkansas
River flows through Pueblo, and not in conflict with the spirit of this
Agreement.
VI. Regional Water Management Program
A. The ROY Participants through the ROY Planning Subcommittee will,
within one year of the Effective Date of this Agreement, develop a
Regional Water Management Program ( "RWMP ") that describes operating
principles to accomplish the Flow Management Program while protecting
all Parties' water rights. The RWMP may include other water user entities
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located within the Arkansas River Basin including Conservancy Districts,
on such terms as are mutually agreed to by the Parties. The ROY
Planning Subcommittee will operate by consensus on the RWMP.
B. In addition, the ROY Planning Subcommittee will make appropriate
investigations to identify cooperative and mutually beneficial mechanisms
and operating agreements to implement statutorily authorized water
leases, interruptible supply agreements, and water trades, and similar
actions pursuant to existing agreements between the Parties to achieve
flexibility in operations and utilization of facilities and decreed water
rights for both native and non - native Arkansas River waters, all within the
confines of and subject to this Agreement and all related existing
agreements. It is expected that such mechanisms and operating
agreements may require additional commitments and obligations by some
of the ROY Participants in order to fully effectuate the existing
agreements. The mechanisms and operating agreements shall not result in
the development of additional water supplies for use outside the Arkansas
River Basin that would result in a net loss of native water to the Arkansas
River Basin. No Party shall knowingly or intentionally take actions to
impair or impede the implementation of the RWMP, so long as the RWMP
activities are within the spirit and letter of this Agreement and all related
existing agreements.
VII. Aurora's Agreements
A. Aurora has currently operating and executory agreements with Colorado
Springs, the Board and the District, which include rights of renewal or
extension that must be respected. The most relevant of such agreements
for the purposes of this Agreement, include the following:
The Aurora /District IGA, and the stipulations referred to in
section III.C. of the Aurora /District IGA and entered into
consistent with that IGA.
2. Agreement dated November 25, 1997 between the Board and
Aurora.
3. Agreement dated March 19, 1990, between the Board and Aurora
concerning the exchange and trade of water.
B. As set forth in this Agreement, Aurora agrees to be bound by the Flow
Management Program.
C. In agreeing to be bound by the Flow Management Program, Aurora
requires assurances from the other Parties that it will be afforded the
means and opportunity to recover the Foregone Diversions from its water
rights. Prior to the construction of ROY Storage, Colorado Springs and
[0]
the Board will cooperate with Aurora as described herein, and subject to
existing agreements, to trade or exchange water with Aurora to recover
yield made unavailable annually by virtue of Aurora's participation in the
Flow Management Program.
D. Aurora agrees to cooperate in good faith in the development of the ROY
Storage program in the manner described in Section II above.
E. Aurora agrees to participate in good faith in the settlement of pending
water rights cases to which it is a party, which cases are listed on
Exhibit 3.
VIII. District Agreements
A. The District is the primary sponsor of the PSOP and the implementing
legislation.
B. As set forth in this Agreement, the District agrees to be bound by the Flow
Management Program.
C. The District agrees to participate in good faith in the development of the
ROY Storage program in the manner described in Section II above.
D. The District agrees to participate in good faith in the settlement of
pending water rights cases to which it is a party, which cases are listed on
Exhibit 3.
E. Nothing in this Agreement is intended to expand, undermine or alter the
obligations of the District and Aurora to each other under the
District /Aurora IGA and any stipulations entered pursuant thereto.
IX. Fountain Agreements
A. As set forth in this Agreement, Fountain agrees to be bound by the Flow
Management Program.
B. Fountain agrees to participate in good faith in the settlement of pending
water rights cases to which it is a party, which cases are listed on
Exhibit 3.
C. In agreeing to be bound by the Flow Management Program, Fountain
requires assurances from the other Parties that it will be afforded the
means and opportunity to recover the Foregone Diversions from its water
rights. Prior to the construction of ROY Storage, Colorado Springs and
the Board will cooperate with Fountain as described herein, and subject to
existing agreements, including but not limited to the letter agreement
between Colorado Springs and Fountain dated May 12, 2004, to trade or
11
exchange water with Fountain to recover yield made unavailable annually
by virtue of Fountain's participation in the Flow Management Program.
D. Fountain agrees to cooperate in good faith in the development of the ROY
Storage program in the manner described in Section II above.
X. Agreements of Pueblo, the Board, and Colorado Springs
A. Colorado Springs and the Board agree to participate in good faith in the
development of the ROY Storage program in the manner described in
Section II above and to work cooperatively with the other Parties in
developing the same. Pueblo agrees to cooperate with these efforts;
provided, however, that Pueblo shall not be required to contribute water or
financially participate in the ROY Storage program nor will it receive any
rights or entitlement to any storage or yield that results.
B. Pueblo, the Board and Colorado Springs agree to participate in good faith
in the settlement of pending water rights cases to which they are parties,
as shown on Exhibit 3.
C. Subject to the terms of this Agreement, Pueblo, the Board, and Colorado
Springs shall not knowingly or intentionally take any actions to impair or
impede the development of ROY Storage and the subsequent use of water
stored therein; provided however, that nothing herein shall preclude
Pueblo from responding to requests for information from governmental
entities, or commenting on issues of concern to Pueblo unrelated to the
quantity of Arkansas River flow through Pueblo and downstream to the
ROY Storage diversions and discharge locations, and not otherwise in
conflict with the spirit of this Agreement.
D. Pueblo agrees to keep and make available reasonable records concerning
use of the recreational amenities described in Pueblo's RICD application.
E. Nothing in this Agreement is intended to undermine or alter the
obligations of Pueblo, Colorado Springs and the Board to each other under
the March I" IGA. Pueblo, Colorado Springs, and the Board agree that
approval of this Agreement by all of the Parties, satisfies the requirements
of Paragraph VIII.B. of the March I" IGA.
XI. Agreement Concerning the Colorado Canal Companies
A. The Lake Meredith Reservoir Company, The Lake Henry Reservoir
Company, and the Colorado Canal Company (collectively "Colorado
Canal Companies ") have decreed exchanges in Cases No. 84CW62, 63,
and 64, District Court, Water Division No. 2.
IV)
B. Colorado Springs, Aurora, and Fountain agree to operate any exchanges of
those shares in the Colorado Canal Companies that they control, directly
or indirectly, consistent with the Flow Management Program.
C. The Parties agree to seek the voluntary participation of minority
shareholders in the Colorado Canal Companies in the Flow Management
Program and to take such reasonable steps as are legally permissible to
encourage that participation.
XII. Time Period
A. The Parties hereto recognize that development of the ROY Storage
program and the settlement of the pending cases identified on Exhibit 3
will require more time to complete. The Parties agree that they will
negotiate in good faith during a one -year period commencing upon the
Effective Date of this Agreement, to accomplish the following tasks. All
dates provided below are intended by the Parties as targets which each
Party will use best efforts to meet.
1. Develop an acceptable downstream ROY Storage plan that will
insure that all ROY Participants are afforded the means and
opportunity to recover their Foregone Diversions.
2. Establish the ROY Planning Subcommittee that will have as its
principal focus the development and implementation of strategies
to aid in the performance of this Agreement and to protect and
improve the efficient management of Arkansas River basin water
supplies. By July 1, 2004, the Subcommittee will agree on the
initial method to determine Foregone Diversions, and identify the
amount of ROY Storage each ROY Participant will need over the
short term, with the understanding that the method chosen and the
amount of storage will be subject to modification in the future as
the Subcommittee determines as necessary. By December 31,
2004, the Subcommittee will identify potential sites for the location
of ROY Storage.
3. Settle among the Parties the water rights cases listed in Exhibit 3
no later than October 1, 2004, subject to any existing stipulations
and agreements. An initial meeting among representatives of the
Parties to discuss the water rights cases shall take place no later
than 30 days after the Effective Date of this Agreement. The
Parties will cooperate by providing relevant information concerning
the cases to other Parties in order to facilitate such settlement.
B. The Parties agree not to file statements of opposition to or to otherwise
participate in any other Party's application for a finding of reasonable
diligence or to make absolute conditional water rights decreed in the cases
13
listed in Exhibit 3 for a period of 24 years from the Effective Date;
provided however, a Party may participate in any such case to the extent
that the Application seeks or the decree grants relief beyond findings of
reasonable diligence or to make absolute the conditional water rights as
originally decreed.
XIII. Effective Date and Related Matters
A. Effective Date. Except as hereinafter provided in this Section XIII, this
Agreement shall become effective upon date of the approval by the
governing body of the last Party to approve this Agreement ( "Effective
Date "), and shall remain in effect as written unless modified by the Parties
in writing.
B. Interim Agreement on Recreation Flows. The requirements of
Paragraph B. of the Flow Management Program described in Exhibit 1
shall become effective upon the Effective Date, while the requirements of
Paragraphs C. through I. of Exhibit 1, pertaining to reduction of the
Subject Exchanges to maintain recreation flows ( "Recreation Flow
Provisions "), shall become effective for an interim period upon substantial
completion of the physical, in -river features of the whitewater boating
park component of the Legacy Project, as generally described in Pueblo's
application in Case No. O1CW160, and any amended application. Pueblo
shall provide notice to the other Parties of the date when this occurs. This
interim period shall continue for a term of five years from the date of
Pueblo's notice of substantial completion of the whitewater park. The
continued applicability of the Recreation Flow Provisions after the initial
five -year term, shall be determined as follows:
1. As to the Board and Colorado Springs, pursuant to the March 1 5 `
IGA.
2. As to the District, if at the end of such five -year term, the PSOP
legislation described in Paragraph III.A. has been enacted, the
Recreation Flow Provisions shall become permanently effective. If
the PSOP legislation has not been enacted, but Reclamation has
entered into Long -Term Excess Capacity Contracts in the total
amount of at least 32,000 acre -feet, or at least 4,000 acre -feet
excluding any contract executed by Colorado Springs, whichever
first occurs, by either master Long —Term Excess Capacity Contract
with the District or individual Long -Term Excess Capacity
Contracts to the PSOP participants, the Recreation Flow Provisions
shall become permanently effective. If this interim agreement
concerning recreation flows expires after five years due to the
District's cessation of active efforts to successfully obtain passage
of the PSOP legislation or Reclamation's failure to issue the
14
necessary Long -Term Excess Capacity Contracts, the Recreation
Flow Provisions applicable during the interim period shall
automatically be revived upon the renewal by the District of efforts
to obtain passage of the PSOP legislation or to obtain Long -Term
Excess Capacity Contracts from Reclamation as described above,
and shall remain in effect so long as such efforts continue.
3. As to Aurora, the Recreation Flow Provisions shall become
permanently effective upon final approval by Reclamation of
Aurora's request for a Long -Term Excess Capacity Contract. If
such has not occurred prior to the end of the five -year period
identified above, the Recreation Flow Provisions shall remain in
effect so long as Aurora's request for a Long -Term Excess
Capacity Contract remains pending. Upon denial by Reclamation
of Aurora's request for a Long -Term Excess Capacity Contract,
Aurora shall be relieved of all obligations to comply with the
Recreation Flow Provisions; provided, however, that such
obligations shall be revived if Aurora reapplies for approval of a
Long -Term Excess Capacity Contract, and shall remain in effect
for so long as such reapplication remains pending.
4. As to Fountain, if at the end of the initial five year term, Colorado
Springs is actively pursuing development of the Southern Delivery
System pipeline as described in the March 1st IGA ( "SDS "), the
Recreation Flow Provisions shall continue in effect for an
additional five years. If this interim agreement concerning
recreation flows expires after either five or ten years due to
Colorado Springs' cessation of active efforts to successfully
complete the development of the SDS, the Recreation Flow
Provisions applicable during the interim period shall automatically
be revived for Fountain upon the renewal by Colorado Springs of
efforts to complete the SDS from Pueblo Dam and shall remain in
effect for Fountain so long as such efforts continue. Upon
completion of construction of Phase I of the SDS as described in
the March 1 st IGA, the Recreation Flow Provisions shall become
permanently effective for Fountain, regardless of any previous
expiration. For purposes of this paragraph, references to Colorado
Springs include any successor in interest to Colorado Springs in the
SDS project.
C. Termination.
With the exception of the Parties' agreement to comply with the
Flow Management Program, which is governed by Paragraph
XIII.B., any Party may elect to terminate its participation in this
Agreement by providing written notice to the remaining Parties,
15
upon:
(a) The failure of the Parties to have agreed upon the ROY
Storage program and each party's participation therein
within one year of the Effective Date; or
(b) The failure of the Parties to reach settlement among
themselves of the pending water rights cases listed on
Exhibit 3 within one year of the Effective Date;
2. Upon any termination of the March l' IGA, Pueblo, Colorado
Springs or the Board may elect to terminate its participation in this
Agreement by providing written notice to the remaining Parties. If
such termination occurs prior to December 31, 2010, any other
Party may opt to terminate its participation in this Agreement, with
the exception of the Parties' agreement to comply with the Flow
Management Program which is governed by Paragraph XIII.B, if
that Party has not already received the substantial benefit that Party
was intended to receive under this Agreement, whether through this
Agreement or otherwise. Notwithstanding the foregoing sentence,
if at any time Colorado Springs (or any successor in interest to
Colorado Springs in the Southern Delivery System project) is
unable to reasonably construct the Southern Delivery System
pipeline from Pueblo Dam due to terms, conditions or requirements
contained in any federal, state or local permit, permission or
license, including Reclamation's Record of Decision or Pueblo
County's 1041 permit, then Fountain may terminate its participation
in this Agreement by providing written notice of such termination
to the other Parties. Upon such termination of Fountain's
participation, all obligations of any kind herein, other than the
obligation to maintain Recreation Flows for any uncompleted
portion of the period provided for in Paragraph XIII.B.4. for the
interim operation of the Recreation Flow provisions, are also
terminated.
3. The obligations of a Party with respect to the non - assertion of
abandonment claims based on Foregone Diversions as described in
Paragraph I.B., shall survive any termination of the Party's other
obligations under this Agreement.
4. No Party shall divert any increased flows in the reach of the
Arkansas River between the Above Pueblo Location and the
Combined Flow Location resulting from the Foregone Diversions
of any senior Subject Exchange of the other Parties. This
obligation shall survive any termination of a Party's other
16
obligations under this Agreement.
XIV. Other Provisions
A. Notices. All notices and other communications that are required or
permitted to be given to the Parties under this Agreement shall be
sufficient in all respects if given in writing and delivered in person, by
express courier, or by First Class U.S. Mail, postage prepaid. Notice
delivered in person or by courier shall be effective upon such delivery;
notice provided through U.S. Mail shall be effective three days after
deposit in the U.S. Mail. Notice shall be given to the receiving party at
the following addresses:
If to Pueblo: City Manager
1 City Hall Place
Pueblo, CO 81003
and also to: Pueblo City Attorney
503 N. Main St., Suite 127
Pueblo, CO 81003
and also to: Anne J. Castle
Holland & Hart LLP
555 17th St., Suite 3200,
P.O. Box 8749
Denver, CO 80202
If to the Board: Executive Director
Board of Water Works of Pueblo, Colorado
P.O. Box 400
Pueblo, CO 81002
and also to: William A. Paddock
Carlson, Hammond & Paddock, LLC
1700 Lincoln, Suite 3900
Denver, CO 80203 -4539
If to Colorado Springs: Chief Executive Officer
Colorado Springs Utilities
121 South Tejon Street, Fourth Floor
P.O. Box 1103, Mail Code 946
Colorado Springs, CO 80947 -0946
and also to City Attorney /General Counsel
City of Colorado Springs, Colorado
30 S. Nevada, Suite 501
17
P.O. Box 1575/MC 510
Colorado Springs, CO 80901 -1575
If to Fountain: Director of Utilities
City of Fountain
116 South Main Street
Fountain, CO 80817
and also to: Cynthia F. Covell
Alperstein & Covell P.C.
1600 Broadway, Suite 2350
Denver, CO 80202
If to the District: General Manager
Southeastern Colorado Water Conservancy
District
31717 United Avenue
Pueblo, CO 81001
and also to: Lee E. Miller
Burns, Figa & Will, P.C.
6400 S. Fiddlers Green Circle
Suite 1030
Englewood, CO 80111
If to Aurora: Director of Utilities
15151 East Alameda Parkway
Suite 3600
Aurora, CO 80012 -1555
and also to: John M. Dingess
Duncan, Ostrander & Dingess, P.C.
4600 South Ulster Street
Suite 1111
Denver, CO 80237 -2875
or to such other address as such party may have given to the other by
notice pursuant to this Paragraph.
B. Assignment. This Agreement may not be assigned by any Party without
the prior written consent of each of the other Parties. Any attempted
assignment in violation of this provision shall be void.
C. No Costs or Attorney's Fees. In the event of any litigation or other
dispute resolution process arising out of this Agreement, the Parties agree
that each shall be responsible for its own costs and attorney's or other fees
associated with any such action.
IN
D. Entire Agreement; Amendments. The Parties recognize and
acknowledge that there are numerous other agreements between and
among them addressing certain issues that are also addressed in this
Agreement. This Agreement (together with the Exhibits hereto, which
constitute parts of this Agreement and which are hereby incorporated by
this reference) constitutes the entire agreement between all the Parties
relating to the subject matter hereof. All prior or contemporaneous oral
agreements and discussions among all of the Parties or their respective
agents or representatives relating to the subject hereof are merged into
this Agreement. This Agreement may be altered, amended, or revoked
only by an instrument in writing signed by all of the Parties. Email and
all other electronic (including voice) communications from any Party in
connection with this Agreement are for informational purposes only. No
such communication is intended by any Party to constitute either an
electronic record or an electronic signature, or to constitute any agreement
by any Party to conduct a transaction by electronic means. Any such
intention or agreement is hereby expressly disclaimed.
E. Applicable Law. This Agreement shall be governed by and construed
according to the law of the State of Colorado.
F. Waiver. The failure of one of the Parties to insist upon the strict
performance of any provision of this Agreement or to exercise any right,
power, or remedy upon a breach thereof shall not constitute a waiver of
that or any other provision of this Agreement or limit that Party's, or any
other Party's, right thereafter to enforce any provision or exercise any
right.
G. Captions. All captions contained in this Agreement are for convenience
only and shall not be deemed to be part of this Agreement.
H. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original and all of which, when taken together,
shall constitute one agreement.
I. Parties Bound by Agreement. This Agreement is binding upon the
Parties hereto and upon their respective legal representatives and
successors.
J. Construction. All section, paragraph, and exhibit references used in this
Agreement are to this Agreement unless otherwise specified.
K. Authorizations. The governing bodies of each of the Parties have
authorized by resolution the execution of this Agreement.
L. Dispute Resolution. If a dispute arises between the Parties relating to
this Agreement, the following procedure shall be followed:
M
The Flow Management Committee shall first consider any proposed
decision item or disputed matter. If not resolved by agreement of
the members of the Committee, the proposed decision item or
disputed matter shall be reported to the Administrative Officers.
The Administrative Officers shall hold a meeting promptly, but in
no event later than 20 calendar days from the referral of the
dispute, attended by persons with decision - making authority
regarding the dispute, to attempt in good faith to negotiate a
resolution of the dispute; provided, however, that no such meeting
shall be deemed to vitiate or reduce the obligations and liabilities
of the Parties or be deemed a waiver by a Party hereto of any
remedies to which such Party would otherwise be entitled under
this Agreement unless otherwise agreed to by the Parties in writing.
"Administrative Officers" collectively shall mean the Chief
Executive Officer for Colorado Springs Utilities, the City Manager
of Pueblo, the Executive Director of the Board, the City Manager
of the City of Fountain, the Director of Utilities for the City of
Aurora, the Manager of the District, or, in all cases, such other
officer authorized by the Party to act in such capacity, and the
designated representative of any subsequent parties.
2. If, within 20 calendar days after such meeting, the Parties have not
succeeded in negotiating a resolution of the dispute, they agree to
submit the dispute to non - binding mediation and to bear equally the
costs of the mediation.
3. The Parties agree to participate in good faith in the mediation and
related negotiations for a period of 30 calendar days. The
substantive law of the State of Colorado shall apply to the
proceedings, but the rules of procedure and evidence need not be
adhered to. If the Parties are not successful in resolving the dispute
through mediation, then the Parties shall be free to pursue any other
legal or equitable remedy. The Parties agree to reasonably expedite
any legal proceedings brought hereunder in order to obtain a
prompt resolution.
M. No Third Party Beneficiaries. This Agreement is intended to describe
the rights and responsibilities of and between the Parties and is not
intended to, and shall not be deemed to confer any rights upon any
persons or entities not named as parties, nor to limit in any way the
powers and responsibilities of the Parties or any other entity not a party
hereto.
N. Force Majeure. Subject to the terms and conditions in this paragraph, no
party to this Agreement shall be liable for any delay or failure to perform
under this Agreement due solely to conditions or events of Force Majeure,
specifically a) acts of God, b) sudden actions of the elements such as
20
floods, earthquakes, hurricanes, or tornadoes, c) sabotage, d) vandalism
beyond that which can be reasonably prevented, e) terrorism, f) war, and
g) riots provided that: A) the non performing Party gives the other Parties
prompt written notice describing the particulars of the occurrence of the
Force Majeure; B) the suspension of performance is of no greater scope
and of no longer duration than is required by the Force Majeure event or
condition; and C) the non - performing Party proceeds with reasonable
diligence to remedy its inability to perform and provides weekly progress
reports to the other Parties describing the actions taken to remedy the
consequences of the Force Majeure event or condition. In the event of a
change in municipal (or other local governmental entity), state or federal
law or practice that prohibits or delays performance, the obligation to seek
a remedy shall extend to making reasonable efforts to reform the
Agreement in a manner consistent with the change that provides the
Parties substantially the same benefits as this Agreement, provided,
however, that no such reformation shall increase the obligations of any of
the Parties. In the event any delay or failure of performance on the part of
the party claiming Force Majeure continues for an uninterrupted period of
more than three hundred sixty -five (365) days from its occurrence or
inception as noticed pursuant to this Agreement, all of the Parties not
claiming Force Majeure may, at any time following the end of such one
year period, terminate this Agreement upon written notice to the Party
claming Force Majeure, without further obligation by any of the Parties;
provided, however, that any such decision to terminate this Agreement
shall not be effective unless agreed to by all of the Parties not claiming
Force Majeure.
O. Non - Business Days. If any date for any action under this Agreement falls
on a Saturday, Sunday or a day that is a "holiday" as such term is defined
in Rule 6 of the Colorado Rules of Civil Procedure, then the relevant date
shall be extended automatically until the next business day.
P. Joint Draft. The Parties, with each having the opportunity to seek the
advice of legal counsel and each having an equal opportunity to contribute
to its content, drafted this Agreement jointly.
Q. Non - Severability. Each paragraph of this Agreement is intertwined with
the others and is not severable unless by mutual consent of the Parties.
R. Effect of Invalidity. If any portion of this Agreement is held invalid or
unenforceable for any reason by a court of competent jurisdiction as to
any Party or as to all Parties, the Parties will immediately negotiate valid
alternative portion(s) that as nearly as possible give effect to any stricken
portion(s).
S. Sole Obligation of Aurora Utility Enterprise. The Parties agree that
any and all obligations of Aurora under this Agreement are the sole
21
obligations of the City of Aurora, Colorado, acting by and through Utility
Enterprise, and as such, shall not constitute a general obligation or other
indebtedness of the City of Aurora or a multiple fiscal year direct or
indirect debt or other financial obligation whatsoever of the City of
Aurora within the meaning of any constitutional, statutory, or charter
limitation. The Parties also agree that they shall not have any recourse
against any of the properties or revenues of the City of Aurora, except that
in order to satisfy any non - appealable judgment against Aurora, the
Parties shall have recourse against the net revenues of the Aurora Water
System that are available therefor in the City of Aurora Utility Enterprise
Water Fund, or any successor enterprise fund, after payment of all
expenses related to the operation and maintenance and periodic payments
on bonds, loans and other financial obligations of said Aurora Water
System.
T. City of Fountain Electric, Water and Wastewater Utility Enterprise.
All financial obligations of the City Fountain hereunder shall be solely the
obligations of the City of Fountain acting through the City of Fountain
Electric, Water and Wastewater Utility Enterprise ( "Enterprise "), and not
the financial obligations or other indebtedness of the City of Fountain,
Colorado, or any other political subdivision, or a multiple fiscal year
direct or indirect debt or other financial obligation of the City of Fountain
within the meaning of any constitutional, charter or statutory limitation.
Fountain's obligation to perform any financial obligation hereunder shall
be fulfilled solely from the net revenues of the Fountain utility systems.
"Net revenues" shall mean the gross revenues of the utility systems, less
all operation and maintenance expense related thereto as determined by
the Enterprise, and periodic payments on bonds, loans and other financial
obligations of said Enterprise. No other funds or property interests of the
City of Fountain, nor any ad valorem property taxes will be used, directly
or indirectly, to perform any financial obligation of the City of Fountain
pursuant to this Agreement.
U. Obligations of Pueblo, Colorado Springs, and the District. Nothing
herein shall constitute, nor be deemed to constitute, the creation of a debt
or multi -year fiscal obligation of Pueblo, Colorado Springs, or the
District, or an obligation of future appropriations by the City Council of
Pueblo, the City Council of Colorado Springs or the Board of Directors of
the District, contrary to Article X, § 20 of the Colorado Constitution or
any other constitutional, statutory or charter debt limitation.
V. Specific Performance. In the event of any default by any Party
hereunder, in addition to other damages or other remedies provided by law
or equity, any other non - defaulting Party shall have the right to seek
specific performance or injunctive relief. Paragraphs XIV.S, XIV.T, and
XIV.0 shall not constitute a limitation on the right of the Parties to seek
such relief.
22
City of Pueblo, Colorado
Attest
Gina utcher
City jerk
Approved as to form:
Thomas gger
Pueblo City Attorney
By:
Randy hurston
President of the City Council
Date approved: Maya, 2004
City of Colorado Springs, Colorado
ionel Rivera
Mayor
Att6e By:
City Clerk
Approved s to form
Patricia K. Kelly
Colorado Springs
Date Approved: May2S2004
Board of Water Works of
Pueblo, Colorado
c l/
Attei / � BY:
Kevin F. McCart
Secretary- Treasurer President
Date approved: May E-, 2004
y Attorney
23
Southeastern Colorado Water
Conservancy District
Attest " 41,j By:
/James W. Broderick Glenn E. Everett
Assistant Secretary President
Approved as to form:
Z. a_—
1-,e -c- F, . &'t ) i-�
SCWCD Attorney
Attest
l:aron Mosley
City Clerk
/WA ;z 0, Body
City of Fountain
By: Zj - -
Ken B a
Mayor l
Date approved: May 9J , 2004
24
City of Aurora, Colorado
Acting By and Through Its
Utility Enterprise
Attest 4 � - AA� By: �/�J� d�
Debra A. Johhjon Edward J. Yauer
City Clerk
Mayor
Date approved: May, 2004
Approved as to for
John M. Ding
Special Counsel
3230616_5 DOC
25
EXHIBIT 1
To the Intergovernmental Agreement Among
The City of Pueblo, The City of Aurora,
The Southeastern Colorado Water Conservancy District,
The City of Fountain,
The City of Colorado Springs, and
The Board of Water Works of Pueblo, Colorado
Arkansas River Flow Management Program.
A Subject Water Rights. The following provisions shall apply to "Subject
Exchanges" as defined in Paragraph I.A. of the above - referenced
Intergovernmental Agreement (the "Agreement'). The term "Water Suppliers"
below refers collectively to all of the above - referenced parties, with the exception
of the City of Pueblo ("Pueblo"). The term "Parties" below refers collectively to
the Water Suppliers and Pueblo.
B. Year -Round Flows. At times when the flow in the Arkansas River immediately
below the fish hatchery located at Pueblo Dam is at or below 100 cubic feet per
second ("c.f s."), the Water Suppliers shall reduce the Subject Exchanges as and
to the extent necessary to attain a flow of not less than 100 c.fs. at that point.
Calculation of the flow at this point, the approximate location of which is shown
on the map attached hereto as Attachment 1, and referred to herein as the "Above
Pueblo Location ", shall be the sum of the flow at the Above Pueblo Gage plus the
fish hatchery return flows.
Additionally, at times when flows at the point identified on Attachment 1
and referred to in this Agreement as the "Combined Flow Location" are at or
below 85 c.£s., the Water Suppliers shall reduce the Subject Exchanges as and to
the extent necessary to attain a flow of not less than 85 c.fs at the Combined Flow
Location.
C. Recreation Flows. During the period of March 16 through November 14 of each
year, when the flow at the Above Pueblo Location is at or below the flow levels
specified on the graph attached as Attachment 2, the Water Suppliers shall reduce
the Subject Exchanges as and to the extent necessary to attain the flow levels
specified on Attachment 2 during the times prescribed in Paragraph H. below.
The "Average Year" flows shown on Attachment 2 shall apply when the Natural
Resources Conservation Service's Colorado Basin Water Supply Outlook Report
"most probable" forecast (Yr /" chance of exceedance) for flows on the Arkansas
River at Salida ( "Forecast ") is 100% or more. The "Drier Year" flows shown on
Attachment 2 shall apply when the Forecast is less than 100% and equal to or
more than 70%. If the federal government ever stops providing these forecasts,
then the Flow Management Committee described in Paragraph F. below shall
decide upon another objective measure that will fairly insure the continuation of
the provisions of the Agreement. This new objective measure shall be
incorporated into a written amendment of this Agreement, executed by all the
Parties.
D. No Reduction Unless Flows Increase. Reduction of the Subject Exchanges
under Paragraphs B. and C shall not be required, unless such reduction will result
in an increase in flows in the Arkansas River between the Above Pueblo Location
and the Combined Flow Location and the increased flow resulting from the
reduction of one or more of the Subject Exchanges is not being diverted by water
rights with points of diversion above the Combined Flow Location.
E. Dry Year Exception. Reduction of the Subject Exchanges under Paragraph C
above shall not be required when the most recently provided Forecast is less than
70%.
F. Flow Management Committee, The Water Suppliers shall participate in the Flow
Management Committee previously established in the March 1, 2004
Intergovernmental Agreement among Pueblo, the Board and Colorado Springs
(the "March I' IGN). Each of the Water Suppliers shall have up to two
representatives on the Flow Management Committee. The Flow Management
Committee will regularly confer and coordinate concerning implementation of
this Flow Management Program. Each year the Flow Management Committee
will meet no latex than March 10", and, as frequently thereafter as it determi is
necessary, through November 10. After the first meeting each year, subsequent
meetings may be held by telephone or other electronic means if the Flow
Management Committee so agrees. Matters to be addressed by the Flow
Management Committee include consideration of means to replace storage
reserves during storage restoration years (Paragraph G.); weekly schedules to
balance periods of reduction and non - reduction for recreation flows (Paragraph
H.); and implementation of the Cooperative Flow Management Program
(Paragraph I). The Flow Management Committee shall operate by consensus. If
the Flow Management Committee is unable to reach consensus concerning any
matter committed to the Flow Management Committee for determination by this
Agreement, the matter shall be resolved in accordance with the dispute resolution
provisions of Paragraph XIV.L. of the Agreement at the request of any Party.
G. Storage Restoration. During the calendar year immediately following a year in
which actual stream flows in the Arkansas River at Salida were less than 70% of
average, as determined by the official streamflow gage records maintained by the
State of Colorado for that location, the Flow Management Committee will
determine based on relevant water storage levels; actual flow conditions; the
overall objectives and intent of this Agreement; and other relevant factors,
whether and to what degree reduction of the Subject Exchanges under Paragraph
C shall be modified for any portion of that calendar year to allow replacement of
storage reserves to normal and acceptable operating volumes. The Parties
anticipate that the alternatives to be considered may include protection solely of
the flow levels required in Paragraph B; percentage reductions of the flow levels
required in paragraph C; operation of the Subject Exchanges to maintain
recreation flows for a specified number of days per week; or a reduced schedule
of recreational flows, depending on the requirements for replacing storage
reserves. These provisions for storage restoration are not intended to guarantee
that the storage reservoirs of the Water Suppliers will be fully restored by the end
of the subject calendar year.
H. Equitable Allocation of Operational Hours. The Flow Management Committee
shall confer and agree upon weekly schedules of reduction under Paragraph C so
as to generally achieve on a monthly basis a 50/50 balance of time between
periods of reduction of the Subject Exchanges and periods of no reduction of the
Subject Exchanges. In general, the Parties intend that the reduction requirements
under Paragraph C shall be in effect during the day, and reduction under
Paragraph C shall not be required during the night. The Parties will use their best
efforts to make flow changes through the Pueblo Dam outlet structure to avoid
adverse impact to fish and wildlife anticipated in the subject reach of the
Arkansas River to the extent possible, while still fulfilling all the provisions of
this Agreement.
I. Cooperative Flow Management Program. The Water Suppliers shall participate
in the voluntary flow management program established in Paragraph I.I. of the
March 1'' IGA.
J. Aquila Energy Diversion Dam. The reduction of Subject Exchanges by the
Water Suppliers under this Agreement shall not be required to be increased to
meet the flows in Paragraphs B and C as a result of any decrease in flows at the
Combined Flow Location resulting from increases in unaugmented depletions
under the Southern Colorado Power Company water right (as described in the
decree dated October 13, 1932, Case No. 19693, District Court, Tenth Judicial
District).
K. Combined Flow Location. The Combined Flow Location was selected as one of
the measuring points used in this Agreement based, in part, on the fact that flows
from Runyon Lake, including the return flows from diversions at the Aquila
Energy Diversion Dam, enter the Arkansas River above the Combined Flow
Location. If a material change in the point of return flows from Runyon Lake and
the Aquila Energy Diversion Dam occurs, then the Parties will work together to
designate a new Combined Flow Location and to mitigate any adverse effects to
the fair implementation of this Agreement.
L. Federal Government Requirements. The obligations of the Water Suppliers
under this Agreement shall not be altered or eliminated by the imposition of any
additional or different requirements on releases from or exchanges involving
Pueblo Reservoir that may be imposed by any agency of the federal government.
Pueblo shall not support, sponsor, or encourage the imposition of any such
requirements
M. March 1" IGA. With respect to the mutual obligations to one another of Pueblo,
the Board, and Colorado Springs, to the extent that any provision of this Exhibit 1
is determined to be in conflict with the March 1 s1 IGA, the March I" IGA shall
control
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EXHIBIT 2
DRAFT SECWCD- AURORA IGA
9/19/2003
ATTACHMENT
108TH CONGRESS
l SESSM
fix. R. _�
To authorize the Secretary of the interior to engage in a feasibility study
M to long teem water needs for the area served by the Fryingpan
Arkansas Project, Colorado, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
Mr. Hefley introduced the following bill; which was referred to the CommiM on
A BILL
To authorize the Secretary of the Interior to engage in
a feasibility study relating to long term water needs for
the area served by the Fryingpan - Arkansas Project, Col-
orado, and for other purposes.
Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,
SEC nOIN 1. PURPOSES.
The purposes of this Act are as follows:
(1) To audiorize the Secretary of the Interior
(hereinafter referred to as "the Secretary") to engage in a
feasibility study relating to present and future water supply
and related storage requirements of the area served by the
Fryingpan- Arkansas Project, Colorado.
2
(2) To amend the Act of August 16, 1962, as
amended, (76 Stat. 389 et seq.) to authorize the Secretary to
enter into contracts for the use of excess storage and
conveyance capacity of the Fryingpan- Arkansas Project,
Colorado, for nonproject water for municipal, water
banking, and other beneficial purposes.
SEC. 2. FEASIBILITY STUDY.
(a) AUTHORIZED - Pursuant to Federal reclamation law
(the Act of June 7, 1902, and all Acts amendatory thereof or
supplementary theretol the Secretary, through the Bureau of
Reclamation, is authorized to conduct a feasibility study to
determine the most feasible method of meeting the present and
future water supply and related storage requirements within the
area served by the Frykam- Arkansas project, including the
potential enlargement of Fryingpan - Arkansas facilities. In
conducting such study, the Secretary shall take into consideration
the Preferred Storage Options Plan Report published September
21, 2000, by the Southeastern Colorado Water and Storage Needs
Assessment Enterprise and Final PSOP Implementation
Committee Report dated April 19,2001 (hereinafter referred to as
the "PSOP Reports ") and the need to ensure compliance with the
Arkansas River Compact as executed by the states of Colorado
and Kansas on December 14, 1948.
(b) FUNDING. - Before funds are expended for the study
authorized by this section, the Southeastern Colorado Water
Activity Enterprise shall first agree to participate in the feasibility
study and to fuad, at a minimum, 50 percent of the costs of such
3
study. The Southeastern Colorado Water Activity Enterprise's
share of the costs may be provided partly or wholly in the form of
services directly related to the conduct of the study, as determined
by the Secretary. Costs incurred prior to the enactment of this Act
to develop the PSOP Reports may be credited toward such
Enterprise's share of the costs of the feasibility study, as
determined by the Secretary.
(c) STUDY To BE SuBMrrmD. - The Secretary shall submit
the feasibility study authorized by this section to the President and
the President Pro Tempore of the Senate and the Speaker of the
House of Representatives.
(d) FURTHER AUTHORIZATION REQUIRED FOR CERTAIN
BXPENDIIUREs. -No funds shall be expended for the consavction
of enlargements, or any other alternative identified in the
feasibility study authorized by this section, without further
authorization by Congress.
(e) AUTHORIZATION OF APPROPRIATIONS. - There is
authorized to be appropriated $4 ,000,000 to conduct the feasibility
study authorized by this section.
SEC 3. SECRETARY AUTHORIZED TO ENTER INTO
CONTRACTS FORTHE USE OF EXCESS STORAGE
AND CONVEYANCE CAPACITY OF THE
FRYINGPAN- ARKANSAS PROJECT, COLORADO.
The Act of August 16, 1962, as amended, (76 Stat. 389 et
seq., as amended% is amended further by adding at the end the
following new sections,
4
OSEC. 8. (a)(1) Except as provided in Section 9, and subject
to the provisions of this Act, including, but not limited to section
5, and all other applicable Federal statutes, the Secretary is
authorized to enter into contracts with any agency or entity,
private or public, including those operating or participating in a
water bank established pursuant to Colorado law, for the use of
excess capacity in the Fryingpan- Arkansas project for the purpose
of diverting, storing, impounding, pumping, or conveying
nonproject water for irrigation, domestic, municipal and industrial,
or any other beneficial purpose.
(2) In entering into such contracts, the Secretary shall take
into consideration the Preferred Storage Options Plan Report
published September 21, 2000 by the Southeastern Colorado
Water and Storage Needs Assessment Enterprise and Final PSOP
Implementation Committee Report dated April 19, 2001
(hereinafter referred to as the "PSOP Repotts'l and the need to
ensure compliance with the Arkansas River Compact as executed
by the States of Colorado and Kansas on December 14, 1948.
" (b) The Secretary is authorized to enter into contracts
pursuant to this section provided that -
"(I) such contracts shall not impair or otherwise
interfere with:
"(A) the Fryingpan- Arkansas Project's
authorized purposes;
"(B) the ability of the Fryingpan- Arkansas
Project contractors to meet such contractual
5
obligations to the Secretary as exist at the time of the
execution of a contract pursuant to the authority of
this section;
"(C) such contractual obligations as the
Secretary has to Fryingpan- Arkansas Project
contractors at the time of the execution of a contract
under the authority of this title;
"(D) the storage allocations and limitations
pursuant to Contract No. 5- 07- 70- W0086, as
amended, renewed or supercoded, between the
Southeastern Colorado Water Conservancy District
and the United States, and the allocation principles
adopted by the Southeastern Colorado Water
Conservancy District on November 29, 1979, and
confirmed by the district court of Pueblo County in
Civil Aaron No. 40487 by decree dated December
18, 1979, including any subsequent modifications
made by the district that are confirmed by the
District Court;
"(E) the yield of the Fryingpen- Arkansas
Project from its West Slope and East Slope water
rights; or
"(F) the ability of individuals or entities
located within the natural basin of the Arkansas
River within Colorado to enter into contracts for the
use of excess water storage and conveyance capacity
6
pursuant to section 8 of this Act or any other
authority under Reclamation law.
"(2) To the extent such contracts are with an
individual or entity that does not have an allocation of
Project carry over storage space pursuant to the allocation
principles adopted by the Southeastern Colorado Water
Conservancy District on November 29, 1979, and
confirmed by the District Court of Pueblo County in Civil
Action No. 40487 by decree dated December 18, 1979,
including any subsequent modifications made by the
District that are confirmed by the District Court (`non -
qualified' entities); the contracts shall not impair or
otherwise interfere with the ability of qualified entities
located within the natural basin of the Arkansas River
within Colorado to enter into contracts forthe use of excess
water storage and conveyance capacity pursuant to this
section B. Except as provided in section 9, before entering
into such a contract with an individual or entity that will
use water stored or conveyed undersuch contract outside of
the natural basin of the Arkansas River within Colorado,
the Secretary shall provide the Southeastern Colorado
Water Conservancy District a fast right of refusal,
exercisable within 90 days, to enter into contracts for the
use of excess water storage and conveyance capacity made
available to the individual or entity that will use water
7
stored or conveyed under such contract outside of the
natural basin of the Arkansas River within Colorado.
"(3) Nothing in sections 8 through 12 of this Act
shall—
"(A) increase diversions of Project water from
the natural basin of the Colorado River;
"(B) increase diversions of nonproject water
from the natural basin of the Colorado River within
Colorado into another river basin for delivery or
storage, except as provided in section 12 of this Act;
"(C) affect in any way contracts, or the
renewal of contracts, entered into pursuant to
authority other than section 8 of this Act, including,
but not limited to, Contract Nos. OOXX6CO049 and
009D6CO048 between the Board of water works of
Pueblo, Colorado and the United States, or the
renewal of Contract Nos. OOXX6C0049 and
009D60048; ContractNo. 6- 07- 70 -WO090 (formerly
Agreement No. 1406-700 -6019) between the Cities
of Aurora and Colorado Springs and the United
States; Contract No. 7- 07- 7010056 between Twin
Lakes Reservoir and Canal Company and the United
States; Contract No. 9-07- 70 -WO099 between the
United States and High Line Canal Company; and
Contract No. 2- 07- 70 -WO104 between Board of
Water Works of Pueblo and the United States; or
8
"(D) affect the interpretation or
implementation of existing law or legislation for any
other Congressionally authorized water project.
"(c) Subject to the provisions of subsection (b), the
Secretary may enter into contracts authorized by this section upon
such terms and conditions as the Secretary may determine to be
just and equitable. The tern of any such contract shall be for such
period, not to exceed 40 years, as the Secretary deems appropriate.
Upon expiration, such contracts may be renewed upon such terms
and conditions as may be mutually agreeable to the Secretary and
the contractor for the use of excess capacity.
" (d) The Secretary shall establish such charges, subject to
subsection (e), for the use of excess capacity as the Secretary
deems appropriate. Such charges shall consist of the following
components.
" (1) One component shall reflect either
(A) construction costs based on either the
original cost, the estimated current costs, or other
appropriate measure of costs, including interest as
provided in paragraph (3) of this subsection, of
constructing the Fryingpen- .Arkansas project
facilities involved; or
(B) another appropriate rate, such as a market
rate.
9
" (2) A second, separate component shall reflect an
appropriate charge for operating, maintaining, and
replacing these same facilities.
" (3) Except in the case of a market based rate, when
excess capacity in Fryingpan- Arkansas Project facilities
will be used to divert, store, impound, pump, or convey
nonproject water for municipal and industrial purposes, an
interest component using the rate determined by the
Secretary in accordance with the Water Supply Act of 1958
(43 U.S.C. §390b).
" (e) All charges established pursuant to this section shall
be just and equitable as to the rates paid by the project contractors
that receive project water from the Fryingpen•Arkansas Project
facilities. The project contractor rate shall be the baseline from
which adjustments can be made based on the particular
circumstances involved in the contract.
" (f) Prior to the execution of any contracts under this
section, the Secretary shall execute an agreement with the
Southeastern Colorado Water Activity Enterprise to provide
guidclines for the terms to be contained in the contracts executed
pursuant to this section. Such guidelines shall appropriately
address impacts associated with water operations under the
contracts, surcharges established by the Enterprise, reimbursement
of costs incurred, and water quality monitoring, as identified by
the Southeastern Colorado Water Activity Enterprise and the
Secretary.
10
" (g) Any contract executed under this section shall contain
a provision pursuant to which the contracting entity agrees to
cooperate in a voluntary flow management program designed to
maintain a target minimum flow of 100 cfs just below Pueblo
Dam.
"SEC. 9. (a) The Secretary of the Interior may enter into
new and renewal contracts with the City of Aurora, Colorado, or
an enterprise of the City, for a tern not to exceed the term
referenced in Section 8(c), for use of storage or carrying capacity
excess of the requirements of the Fryingpau- Arkansas Project,
Colorado, for the purpose of impounding, storage, and carriage of
non - project water for domestic, municipal, industrial and other
beneficial purposes.
Such contracts shall be—
" (1) limited to the storage and carriage of waters
appropriated from the Arkansas River held by the City of
Aurora. Colorado, or an enterprise of the City that -
(A) are decreed water rights and owned by the
City of Aurora, Colorado, or an enterprise of the City
as of December 7, 2001, or,
(B) are water rights described in a Colorado
Water Court water rights application pending as of
December 7, 2001, or an amendment or re -filing
thereof, as long as such amendment or re -filing does
not increase the draft of water from the Arkansas
11
Basin that would have been available to City of
Aurora, Colorado, or an enterprise of the City under
the original application, or
(C) result from water lease agreements
existing as of December 7, 2001, including any
renewal or replacement contract for no more than the
existing amount of water, or
(D) result from interruptible supply
agreements or water bank transactions authorized
under Colorado law, and operating no more than five
calendar years during any period often consecutive
calendar years, or
(E) is traded to, or exchanged with, the City
of Aurora, Colorado, or an enterprise of the City for
one of the foregoing items (A) through (C) as long as
such trade or exchange does not increase the draft of
water from the Arkansas River Basin that would
have been available to the City of Aurora, Colorado,
or an enterprise of the City under subparagraphs (A)
through (C);
" (2) are for water obtained by the City of Aurora.
Colorado, or an enterprise of the City from the Colorado
River consistent with section 12;
"(3) contain a provision p urs u an t to which the City
of Aurora agrees to cooperate in a voluntary flow
management program designed to maintain a target minimum
12
flow of 100 cfs just below Pueblo dam;
"(4) include a provision whereby the City ofAurora.
Colorado, or an enterprise of the City, agrees to participate in
a long-term water quality monitoring and management
program as outlined in the Implementation Committee Report
dated April 19, 2001; and
" (5) ensure compliance with the Arkansas River
Compact as executed by the states ofColonrdo and Kansas on
December 14, 1948.
" (b) Prior to the execution of any renewal contract with
the City of Aurora, the Secretary of the Interior shall execute an
Agreement with the Southeastern Colorado Water Activity
Enterprise, which agreement shall provide guidelines for the terms
to be contained in a renewal contract executed pursuant to this
section. Such guidelines shall appropriately address those impacts
associated with water operations under the contracts, such as
storage and convenience charges, surcharges established by the
Enterprise, reimbursement of costs incurred, and water quality
monitoring, as identified by the Southeastern Colorado Enterprise
and the Secretary.
" (c) Any contract executed under the authority of
subsection (a) or (b) shall be in compliance with the provisions of
section 8(bxl).
" (d) The Secretary shall establish such charges under this
section 9 in a manner consistent with the provisions of section
8(d) and (e).
13
"SEC 10. (a) Except as provided under subsection (b), all
revenue generated pursuant to contracts executed under sections 8
and 9 shall be credited as follows:
"M That portion of the charges established
pursuant to section 8(d) and 9(d) which is attributable to the
component which reflects interest shall be credited as a
general credit to the Reclamation Fund.
"(2) That portion of the charges established
pursuant to section 8(dx2) and the comparable provision of
9(d) shall be credited against the appropriate project
operation, maintenance, and replacement casts.
"(3) All remaining revenues in excess of those in
paragraphs (1) and (2) of this subsection shall be credited
as follows:
(A) If reimbursable federal construction costs
are outstanding for the Fryingpan- Arkansas project at
the time revenues are received, then all containing
revenues shall be covered into the Reclamation Fund
and credited to the Fryingpan- Arkansas project. All
remaining revenues shall be credited against such
reimbursable costs in a manner the Secretary deems to
be just and equitable as to the reimbursable purposes
which are involved. The revenues so credited shall
not be applied so as to reduce the amount of the
current annual payments due the Secretary from the
project contractors or any other responsible for
14
paying outstanding reimbursable project construction
costs unless and until the party's current annual
payment due exceeds the remaining reimbursable
construction costs payable by the party.
"(13) If no reimbursable Federal Fryingpan-
Arkansas project construction costs are outstanding at
the time revenues are received, then all remaining
revenues shall be credited to a separate fund,
established in the Treasury of the United States, to be
known as the Fryingpan- Arkansas Project Fund,
which shall remain available, without appropriation,
for new federally funded construction on the project,
including, but not limited to, additions, rehabilitations
and betterments, safety of dams modifications, and
major capital replacements, applied against the
Federal reimbursable costs, if any, of such new
construction in such manner as the Secretary deems
just and equitable as to the Federal reimbursable
project Pis involved. No expenditures may be
made from the Fryingpan- Arkansas Project Fund
without the express written consent of the Secretary
and the Enterprise.
"(b) DMEC'rPAYMEMS.- Payments generatedpursuantto
contract terns established under section 8(f) and the comparable
provisions of 9(b) shall be made directly by the contractors to the
Southeastern Colorado Water Activity Enterprise.
15
"SEC. 11. (a) Nonproject water diverted, stored,
impounded, pumped, or conveyed under a contract entered into
pursuant to section 8 or 9 shall be exempt from any acreage
limitation provisions of the Act of June 17, 1902 (32 Stat. 388),
and Acts amendatory thereof and supplementary thereto including,
but not limited to, the Warren Act of 1911, the Reclamation
Reform Act of 1982 (96 Stat. 1263; 43 U.S.C. 390aa- 390zz -1)
and from any farm unit size limitations established pursuant to
section 4(cx5) of the Act of August 11, 1939 (Chapter 717; 16
U.S.C. 590z— 2(c)(5)).
(b) Notwithstanding subsection (a),- if such nonproject
water is commingled with project water in Reclamation project
facilities, and the resulting commingled supply is used to irrigate
lands in a project contractor's service area, then such commingled
water shall bear the same acreage limitations or farm unit size
limitations as the project water unless —
"(1) contract provisions are in effect which provide
that project or nonproject water, or both, will be accounted
for on a quantitative basis, that project water will not be
delivered to ineligible land, and that appropriate charges, as
determined by the Secretary, will be paid for the project
water, and
"(2) the charges for the use of the excess capacity
include an appropriate interest component, as determined
by the Secretary.
16
"SEC. 12. (a) Excess water storage capacity of the
Fryingpan- Arkansas project to divert, store, impound, pump, or
convey nonproject water made available under contracts executed
pursuant to the provisions of sections 8 and 9 shall not be utilized
so as to increase diversion of nonproject water from the natural
basin of the Colorado River within Colorado into another river
basin for delivery or storage unless --
"(1) the diversion is the subject of a decree entered
prior to the effective data of this section for which no new
infrastructure or legal approvals are necessary to divert the
water out of the natural basin; or
"(2) the diversion is the subject of an agreement in
existence on the date of the enactment of this section,
contemplating additional diversions diverted through or
stored in the facilities authorized by this Act, between the
beneficiary of such transbasin diversion and the water
conservation district, as defined under Colorado law, from
within whose boundaries the waters are proposed for
diversion; or
"(3) the diversion is the subject of an
intergovernmental agreement or other contractual
arrangement executed after the date ofthe enactment ofthis
section, between the beneficiary of such transbasm
diversion and the water conservation district, as defined
under Colorado law, from within whose boundaries the
waters are proposed for diversion; or
l67
"(4) the beneficiary of such transbasin diversion
provides compensatory storage or alternate water supply in
an amount equal to the quantity diverted out of the basin for
the benefit of the water conservation district, as defined
under Colorado law, from within whose boundaries the
waters are proposed for diversion.
"(b) Prior to executing any agreement, or arrangement or
agreement for provision of compensatory storage or alternative
water supply, that allows for increased diversions of nonproject
water as described in subsection (a), the parties to such
agreements or arrangements shall submit the agreement or
arrangement to the Secretary, who, within 30 days, shall submit
such agreement or arrangement to the President Pro Tempore of
the Senate and the Speaker of the House of Representatives for a
period of not less than 60 days.
"(c) This section shall not be considered as precedent for
any other congressionally authorized project.
EXHIBIT 3
To the Intergovernmental Agreement among
The Southeastern Colorado Water Conservancy District
The City of Aurora, Tice City of Fountain, The City of Pueblo
The City of Colorado Springs, and
The Board of Water Works of Pueblo, Colorado
Water Rights Cases Pending in Water Division No. 2 to be Settled
Non - Opposition to Diligence Proceedings
1) Southeastern Colorado Water Conservanov District
a) Case No. OOCW 138, Pueblo Reservoir Enlargement, including future diligence
proceedings.
b) Case No. OOCW 139, Turquoise Reservoir Enlargenmrt, including future diligence
pioceedings-
c) Case No. O1CW 151, Fryingpan- Arkansas Project return flow exchange, including
future diligence proceedings.
d) Case No. W -28, Fryingpao-Arkansas Project conditional water rights.
2) City of Auras
a) Case No. 87CW63 (OOCW28), Exchange of Rocky Ford Ditch water upstream firm
Pueblo Reservoir, including any future diligence proceedings.
b) Case No. 98CW 137(b), Spurlin Shaw - Hayden Ranches change of water rights to Box
Creek Reservoir.
c) Case No. 99CW 169 ft Rocky Ford Ditch Change of Water Rights.
d) Case No. 99CW 170, Upstream Exchange of Rocky Ford Ditch Water (A & B),
including future diligence proceedings.
e) Case No. 01 C W 145, Box Creek Reservoir.
Page I of 2
3) City ofFoumain
a) Case No. O 1 CW 108, Fry-Ark Project and Non -Project Water Exchange, inchding
f ibae diligerce procmdings.
b) Case No. O1CW 146, Supplemental Plan for Augmentation
4) City of Pueblo
a) Case No. O1CW 160, RICD Water Right, including future diligence proceedings.
5) City of Colorado StainLs
a) Any dthgence proceeding related to the conditional water rights originally decreed in:
)
Case No. 84CW202 (A & B).
n)
Case No. 84CW203 (A & B).
in)
Case No. 86CW 118 (A & B).
iv)
Case No. 89CW36.
v)
Case No. 90CW056
6) The Board of Water Works of Pueblo. Colorado
a) Any diligence proceeding related to the conditional water rights originally decreed in:
i)
Case No. 84CW 177 (A & B).
n)
Case No. 84CW 178 (A & B).
in)
Case No. 86CW 111 (A & B).
iv)
Case No. 93CW86.
Y)
Case No. W -76
b) Settlement of Case No. 95CW216(C), Application of Board of Water Works of
Pueblo.
Page 2 of 2