HomeMy WebLinkAbout1991 Ordinance No. 050·1
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ORDINANCE NO .;;ft)
SERIES OP 1991
BY /I\Jl1lOR ITY
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CCIJNCIL BILL NO . 5 5
JNl'RODUCED BY CDJNCIL
MEMBER BULl.CCK
AN ORDINANCE APPROVING AN /\GREEMENl' BEI'WEEN THE CITY OF ~ AND THE
CITY OF DENVER llOI\Ril OF WATER CO-MISSIOOERS .
WHEREAS, the Ci t y of EnglE!'.ood filed a lawsuit in District 8 Water
Court to require proper reporting and operation of the Denver Board of
Water carrnissioners en their South Platte River Systen; and
WHEREAS, the City of Englewood also requested the Court to enforce an
Agreenent with Denver which required Denve r to IMke releases to the South
Platte River for evaporation losses fran their upstream reservoirs en the
South Platte River ; and
WHEREAS , with the approval of this Agreerrent the City of Englewood
and the Denver Board of Water Cannissioners will settle all the issues and
avoid a lengthy trial ;
Na'I, THEREFORE, llE IT ORD.'.INED BY THE CITY CXXJNCIL OF 'Il-lE CITY OF
ENGLDO'.JD , COLCR'IDO, AS FOLI.O,'S: -
section 1. The City of Englewood hereby approves entering into the
Agreenent between the Denver Board o f Water Comli.ssioners and the City of
Englewood which generall y provides as follows:
1. Wintertime Prior ity of the City of Englewood decreed with
CAl 706 -Douglas County Court.
2 . Dismissal of Counter claim in 90CW82.
3, Intermittent Operation of Engl-ewood's Winter 1706 Rights --
Englewood may make intennittent diversions en its Winter 1706
Rights .
4. Priority of Denver's Metro Sewer-to-Chatfield Exchange .
5 . Denver's Recreational Decree at Chatfield; Releases fran the
Recreational Decree not to be made for nunicipal p.irposes .
6. certain Denver Exchanges fran Chat.field (Accoun ting Exchanges);
Chatfield Adninistrative Accounts; Chatfield Accounting.
7. Denve r's Reporting requirements ; Englewood's reporting
requirements .
8. Permanence of the various provisic,cs o f this Agreenent ;
concurrence o f Fe deral and State Official s.
9. Perpetual Agreerent s .
10. 'rerminobl e Agreerents.
l l. r;smissal -the City of f)-iglewood will dismiss its carplaint
·.:.t.'1oot prejudice, except for the provisions thereof relating to
the 195 3 Agreerent .
Int roduced, r e ad in full , and pass ed on firs t reading on the 15th day o f July , 19 91.
Publisred as a Bi ll for an Ordinance m the 25th day of July, 19 91.
Rea d by title and pas s ed on final reading m the 5th <lay of August, 1991.
Published by title as Ordinanc e No. ~. Series of 199) , on the 8th day o f August , 1991.
~~UV.~
Patricia H. era,,, City Clerk
I, Patricia H. Crow, City Clerk of the Cit:y of Engle,,,-i , Colorado,
rereby certify that the above and foregoing is a true copy of the Ordinance
passed on final reading and p.iblished by title as Ordinance No . \Z2, Series
of 1991. c:2
~;~.;;ii~
Patricia H. Crow
AGREEM EN T
1. I ntrodu c t ion; Parties a nd Pu r po s es
The City of Engle wood (Englewood) and the City and County o f
De nver , acting by and through i ts Board of Water Co mm issioners
(Den v er) (both Englewood and Denver are Colora do municipal
c orporations) entered into a contract entitled "Agreement" dat.ed
the second day of Septe mb e r, 1953, dealing with the operationa of
,::e rtain ex i sting Denver reservoirs known as Cheesman, Eleven Mile
and Antero; and a contemplated Denver reservoir known as Two
Fork s. (The 1953 Agreement). The 1953 Agree~ent is the s ubject
of litigation brought by Englewood against Denver in case number
90CW0B2, filed in Water court for Division One, state of
Colorado. The parties have agreed to resolve their dispute
concer ning the 1953 Agreement and the aforesaid litigation as
follows.
2. 1951 Agreement Terminated and Rep l aced with This
Agreement.
The 1953 Agreement is terminated and replace d with this
Agreement. Except as set forth herein, Englewood s hall make no
further demands on Denver for releases for evaporation from its
on -stream re s ervoirs ,
3. Dismissal of Li tigation wit)! P.ejudi ce .
Within two business days a ter signature of this Agreement
by both parties, Englewood ag:ees to move to dismiss with
prejudice all of its claims concerning the 1953 Agreement made in
Cas~ Number 90CW082 . Denver will consent to the motion.
4. Agreement by De nve r
4.1 Definiti on s .
4. 1. 1 "Seni or rights of Englewood" means wate r rights
own e d by Englewood as of date hereof having a priority wh i ch
i s s e n i or to that for Eleven Mile Reservoi r, wh i ch i s J uly
10, 1 92 6, "ownershi p" includes d ire c t owne rsh i p or
own e rship of shares o f stock in a corpora tion own i ng wa ter
rights . The sen i or rights of Englewood are lis ted on
a t tached Exhib i t B.
4. 1. 2 "Rate of e va p o r a t i on fr om El e ve n Mile Reservo i r"
me ans t he curren t rat e of e v a poration , in cub ic f e 't pe r
second, fr om t he s u rface of El e ve n Mi l e Reservo i r ,
determined b y u sing the d a i l y evaporat ion r a t es , l e s s 70
percant of preci p i t ation measu r ed nea r Eleve n Mi l e
Rese r voir. The r e sha ll be deem e d to be no evapor a t ion
occurring wh e n the s ur face o f a r e s e rvo i r i s f roze n. Fo r
convenience, t h•3 p ar t ies have ag r eed t h at El even Mile
Reservoir w~!l be d eemed t o be fr o zen d u ring t he per iod
1
De cember 1 through April JO. The evapora tion rate chart to
be utilized is attached as Exhibit A.
4.: De nve r 's Ac tions, Up on Noti c e From Engl e wood, Wh e n a n
Englewood s e nior Right is Uns atisfie d.
Promptly after rece ipt of notice from Englewood (which may
be ma de by telephone, fax machine, or delivery of a wr i tten
document) that an Englewo od senior right is unsati s fied, Denver
will commence releasing water from one or more r eservoirs into
the South Platte River (or otherwise provide water in the South
Platte River) for diversion by unsatisfied "Sen i or rights of
Englewood." (Denver need not sat i sfy rights which do not divert
from the main stem of the South Platte River, or which divert
above Eleven Mile Reservoir). Englewood's notice will include the
rate of release required from Denver, calculated a s s et forth
below.
The water released by Denver will be res ervoir discharges
divertible only by Englewood, pursuant to the provisions of
Section 37-87-102(4), C.R.S. (1990), or will be direct flow water
similarly divertible only by Englewood. The water will be
decreed for municipal use. Denver will retain any reuse rights .
The rate of releas e by Denver shall be the least of (1) the
Rate of Evaporation from Eleven Mile Reservoir; (2) the rate
needed to fill the uns"tisfied "Senior rights of Englewood"; or
(J) the amount which ca.n be put to beneficial use under
Englewood's unsatisfied "Senior rights of Englewood."
For purposes of calculating the rate needed to fill the
unsatisfied Senior rights, those rights shall be deAmed to be
diverting in the "Single Use Mode", if the decree for the
particular right utilizes that terminology .
The am~unt delivered by Denver to Englewood, measured at
Englewood's point of divers i on, shall not e x ceed 750 acre f e et in
any one calendar year.
Releases need not be made when Eleven Mile Re servoir is i n
priority to store under i ts own prior i ty i n C.A . J 28 6.
Englewood will place calls on all unsatisfied "se n i or r ights
of Englewood" (-.o the e x t e nt allowable und e r current law a nd
admi ni strative pr "ctice) be fo re requiring releases fr om De nve r .
5 . Failur e of Englewood to Give Not ice.
If Engl ewood f a ils t o g i ve notice o f a call by a senior
r igh t , De nver will not be required to r e l ease wa t e r and no breach
o f thi s Ag r e e me nt will occu r. Failure o f Engl ewood to g i ve
notice of a ca ll o f a s e ni or rig ht wi ll no t be d e eme d t o be a
wa i ve r o f Engle wo od's right to g ive no t i ce , nor shal l a -~i l ure
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of Englewood to give such notice give rise to a defense of l aches
a gains t Englewood .
6. Evaporation Re leases From Cheesman Reservoir and Antero
Reservo ir ; Eva poration Releases From Additional Reservoir~.
Englewood rema ins free to demand releases to compensate f or
e vaporation from a ny on-stream Denver reservoir other than
Cheesman, Antero and Eleven Mile. Shou l d Cheesman or Antero
Reservoir be enlarged from capacity 79,064 and 33,776.9 acre
feet, respectively, Englewood may demand releases to compensate
f or evaporation from exposed surface area resulting from the
enlargement, under S 37-84-117(5), 15 C.R.S. (1990), or any
successor provision.
1. Term of This Agreement: Terminated by Required
Evaporation Releases.
Should this agreement or any part hereof becoms impossible
of performance by reason of legi timate a nd enforcible order of a
government agency other than the pa rties hereto, t hen and in that
event, this entire agreement shall terminate and become null and
void and both parties hereto shall be released of any obligation
hereunder.
8 • A.l!J'!ia.nme.ot.
Englewood may not assign its r i ghts under this agre _ment, in
whole or in part (except to any governmental body which repla~es
Englewood as the supplier of water to the current Englewood
service area). However, Denver agrees that this agreement may
and will benefit those who obtain treated or untreated water from
Englewood (or any successor governmental body above described).
9. Previous Objecti ons Precluded in C.A. 3286.
The 1953 Agreement was made in return for withdrawal by
Englewood of objec tions which it mad e in Civil Action 3286 ,
Douglas County, Colorado. Those objections are a ttached as
Exhibit c. Englewood will not make again, in connection with the
decree entered in C.A. 3 286, those obj ection s set forth on
Exhi bit C.
Dated this ___ day of July , 199 1
EXECUTIONS ON PAG E 4
APPROVED:
~~
APPROVED AS TO FORM:
~ .$ l½·i,t
Legaiolvfsf6n
ATTEST:
City Clerk
CITY AND COUN TY OF DENVER,
actin by and through its
CITY OF ENGLEWOOD, COLORADO
By_:-:------------Mayor
EXHIBIT A
MONTHLY EVAPORATION RATE
AT
ELEVEN MILE RESERVO IR
May
June
July
August
September
October
November
o. 3 3 ft/month
0.40 ft/month
0.42 ft/month
0,45 ft/month
0.47 ft/month
0.40 ft/month
0.18 ft/month
EX HIBIT B
"SENIOR RIGHTS OF EN GLEWOOD"
1. The water rights represe nted by certain shares of s tock
in t he Nev a da Ditch, including certa i n r i ghts in the Platte Canyon
Ditch, for which a change of point of diversion and other terms and
conditi ons were decreed in C.A . 1706, Douglas County District
cour t, and for which another change of point of diversion and other
terms and conditions were decreed in Case No. 80CW035, Water
Division 1.
2. All of the ownership of the Petersburg Ditch water
rights, for which a change of point of diversion and other terms
and condit i ons were decreed i n Case No. 80CW035, Water Div ision 1.
3. Two and fifty-four one hundredths (2.54) cubic feet per
second of water from the c i t y Ditch priority of November 18, 1860,
originally adjudicated by d ~r.r ee in Douglas County District Court
dated December 10, 1883.
4. The water rights represented by certain shares of st~ck
in the Nevada Ditch for which a change of point of diversion and
other terms and conditions were decreed in Case No . 88CW202, Water
Division 1.
5. Those water rights owned by Englewood consisting of an
interest in the Brown Ditch, for which a change of point of
diversion and other terms and conditions were decreed i n case No.
86CW014, Water Division 1.
• •• •
IN TH~ DISTRICT COURT DI AND FOR THE
COUJITY OF PARK AIID
STATE OY COLORADO
CIVIL ACTIOII NO. )286
IH THE J,\,\TTER OF TH! ADJUDICAT ION
OF WATER RICHTS IM \-/ATER DISTRICT
MO. 2).
~ AND ~
Come now th11 protestants, the City ot Englewood, Colorado,
a Municipal Corporation ot the Second Clau, the Nevada Ditch'
Holding Company, a Mutual Irrigation Company, and George B. Ad~,
as an individual, as one ot the tenant, 1n cannon ot Brown Ditch,
and its appropriation, and a s the representat ive ot tho comon
owners or the a ppropriations diverted by means ot Bro\C\ Ditch,
pur:,uant t ,, Section 10, Chapter 190, 194) Se•sion Law• ot
Colorado, a, the owners _or appropriations, or parta ot appro-
priation•, ol' water ri&ht• bearing a djudicated priority date•
tor the diversion ot water trom the South Platte -River is Water
District 1/o . 8, Irrigation Division No. l, ot the State ot
Colorado, eaid priority dates and numbers being aa follows, to-wit:
Priority No .
Priority Ho.
Priority No.
Priority l!o.
Priority No.
Priority No.
i:
9,
l),
1.4,
20,
dated August 30,
dated November JO,
di.ted Nov ember 30,
dated Decemb er JO,
dated December JO,
dated December )0 1
1861
1861
1862
186)
186)
186 5
and object. to and protest against · the de c ree dra ft herein proffered
to tho court by the City and County of Denver upon tho ground that
t he entry or a decreo here.:.~ in fora, and words or the proposed
decree as tho same is drawn ,tnd t endered to the Court is improper
and should not be made in such fom and substance, as to pri oriti es
therein proposed to bo numbered A-1 8 5, A-186, A-260, an d A-261.
The reason s and grounds for this prote st are as follows :
A 1. Said proposed decre e goes beyond the powers or the Court
W and, if t'n tered, would materially and injuriously a ffect the water
rights of th• protestants and tha ri&hts of tho pu blic in tho water
s up ply of tha South Platto Rivor and of other public streams of
the St ato of Colorad o by creating , wi th semblance or authority,
bu t withou t warrant, int erference with tho prot estants' said
'-"Ate r ri ght s, and by un duly plac ing a burden upon the distribu-
tion of water from tho South Platte River.
2. The propo,ed decree as to said enumerated ap propriations
attempts to have the Court determine and order, in addition to
· th• adjudication of water rights or this \later District, the
water rights or water districts over which this Court hastno .
jurisdiction and to enter herein decretal matters wholly foreign
t o the powers ot the court in this proceeding and beyond it•
&uthorited scope .
) • The said provisions or the said proposed decre .. exceed
the jurisdiction granted this Court by the statutes under which
t his •pecial statutory proceeding was instituted and is being
lll&intaineJ , Said decree so _proposed to be entered ~•es beyond
_an d h in oxcua or the powers and jui:isdiction given to ,:his
Court by the statute setting torth the pow er• or the Court in this
otatutor'/ wetar adjudication, being Cha pter 190 , 194) Se•don Laws,'
Section 13, as well as other sections or said chapter.
4. Th• ~id proposed decretal provisions as to said propo s ed
priorities are not in form and substance as required by the law
an d embrace sundry matters and things which said decree &nd Cou r t
have no authority to determin• in thia statutory proceeding for
the adjudic,.~ion of p~ority ot water rights from the South Platte
:liver in,:. ,,r District No . 2),
S . ~•id findings u.n d decree assume to consider and detenniae
::.atters and things pertaining to other and former adjudication~
in this !ind in other Cow-ts, as weU as those adj udications to be
hereafter held in other Courts pertaining to the priorities or
rights to use of wat e r an d pertai ning to distribution or water
frcm the South Platte River and from natural streams and parts
....
thereof tho . a djudi cation j urisdiction or which is not in this
Ccurt and over which the Court hore Ms not. a uthority or jurh--
dlct.ion to Mka such decree s and decreta l order:,,
6. Th a said proposed decrees as to Mid proposed priorities
woul d, wit hout ju.1~1 sd iction 1 attempt to invade matters committed
~Y statute to legislat ive and executive authority, and would
attempt to control th• action of the water oftic:ials ot Colorado
by imposing a specified manner or exchange and administration
or water r!r;hto beyond th• powers given tho Court in this pro-
ceeding, Among such attempted controls or tho leghlativo and
administrative officers are those attempting to grant or create
by decree rights or exchange, which matter• are roreign to the
!'unction and powers or this proceeding, That tho circU11stances
under which exchanr;es may legally be mada are sat forth by
statute and are dependent from day to day, from week to week, and
during the periods or the day, upon nuctuation or river flow and
the variation in deunds and uses and rights or other _appropriatore
up and down stream, as well ~1 ri£,bt1 or appropriators from other
~traams not under the jurltdiction· or this Court; that such
attempted decretal provisions relative to exchange of water aro
r , r eign to tho fun ction or this proceeding and have no proper
place in a decree or adjudication or priority or water rithts in
llater District No . 2),
7. Such proposed decretal provisions for exchange of water
are without s~atutor!' P-'Wer and woul d assume the r ight t o re peal ,
i!Od ify , or am end e xi sting statutes an d matters within the powe rs
or tho legisl at ure .
8 . That the decretal provisions ten dered for awarding a
priority proposed to l:,-5 No . A-185 aro not suppo~ed by the evidence
or b~ law-and th·o pro ponent claimant thereof ha s proposed a date,
num ber, and am ount for said conditional decreed. priority which is
not supported by date o<' construction nor by diligence related to
• •
the da te claimed, nor is it supported by proof or the aQOw,t or
water therein •ought to havo odjudi ca t od t o tho claiman t of oaid
a ppropriation.
9. That as to the priorities proposed in such decretal
order to be awarded No•. ,\-lSS, .\-166, A-260, and A-261, tho said
order attempts to prescribe, restri ct end control prloritie-s under
tho jurhdiction of other Couts and wi•.hout tho jurhdictim of
this Court. The said proposed d ecree: ,,ould erroneously place
r utrictivo conditions on tho 1130 -o f w:,ter being adJudicatod 1n
othor Couru or heretofore adjudicated in thh Court and vould
constitute an undue interfe rence 'With the £'unctions or other
Court• and with the prioritio1 already entered in thb Court, or
being e.'ltered herein, and would be an attempt to control by this
Court appropriations from streU'ls and water di stricts outside
Wa ter Di•trict Ho. 2) of tha South Platte River,
10. That the decree •o proposed and soui:ht tr011 the Court
h ara in the tendered dra~ of the decree as to w ter fro ■ the
Colorado :::1 ver and ih tri'butaries would invalidly restrict,
interfere with, and unlawf'ully attll:lpt to control tho u31 of
water not a ppropriated out of Water Dhtrict Ho . 2) 1 and would
Wllaw!\llly and erroneoU3ly impose an added burden upon the South
Platte River and the operation or the water r ights ot others
out or said river.
WHEREFORE, petitioners pray the Court that the.y ma y be heard
hereon and may be given opportunity for ob j v~t i on to and protest
against t he decrees s ought b y the. City and county ot Den ve r,
t h e proponent of said tendered decree s, and that the Court fix a
day for hearing hereon and upon such hea ring sha ll eliminate
s a id ob jectionable matter:, 1\-om sa id tendered de cree, and so
fo.rmulate, revise , and ent er a decree s o t h at the same shall be
'"'!.!!':.in the powers given by the statute to tho Court i n the metter
of what sh.ill be included i n decr~es in statut ory water. a djudica-
t ion pro ceed.ines, an~ so that appropriators from Wat e r Di s trict
;;
!lo. 8 the protestants may have opportunity to be heard and
to cross-ex.amino said proponent's witne sse s as ht retofora
stipula ted by proponent, and to introduc11 evidenc e showing that
their wate r rights may bo ""terially affected by a proposed
decree which tho Court might enter 1n this adjudication.
d Cla11, the Kevada Ditc ,, g
Coapan:,, a Mutual Irrigation
Cocpan:,, and Ceorgo B. Adaa1, es an
indirldual, and •• the repr111nta-.
t1Te 0£ the common owners of the
appropriations diverted by means
or the Brown Ditch.
-,,.,--·':::-1 ..
cm,o 10 er Im~ Mr
-CM!fcr t!IT « nc r;,-._it(l 1 W'ICUIIGIII,
Temporary Operating AgrP.ement
South Platte Exchange
1. The s outh Platte Exchan ge fRanch Creek Excha ng e).
1.1 ~-The parties to this temporary ag reem ent are the
City of Englewood, a Colorado Mun icipa l Corporation (Englewood) and
City and Co unty of Denver, a cting by and through its Board of Wat er
Commis sioners (Denve r).
1. 2 Introduct:1._on, Englewood has certa in water rights on
tributaries o f the Fraser River (the Ra nch Creek rights). The water
produced by the Ranch Creek rights is made ava ilable to Englewood
i n the manner set forth in two agreements (which agreements also
descr i be the Ranch Creek rights in detail), Th e agreements are
entitled "Water Exchange Agreement," dated Ma rch 17, 1964, and
mo dific ation of March 17, ·1964 Water Exchange Agreeme nt, dated
September 2 , 1969 (the Ranch Creek Agreements ). Nothing in t his
Agreeme nt shall constitute an amendment, waiver or construction of
the Ranch Creek a greements, and the descciptions of operations
under the Ranc h Creek agreements made here in a re made only for
convenience and ease of understanding of this Ag ree ment .
Englewood obtained a conditional decree in Case No. W-84 56-76,
which is utilized in connection with its Ranch Creek rights (the
South Platte Exchange) . Englewood's South Platte Exchange is
infrequently exercised. However, durinc_; a period anticipated to
commenc e September 1, 1991 and exte nd through April 30, 1993 (and
possibly long er), De nver wl ll undertake r epairs and improvements at
the Moffat Treatme nt Plant (the r e novation period ). Du ring the
renovation period, Denver may be unable to util ize the Ranch Creek
water at t he Moffat Treatment Plant and Englewood may need to
exchange illl (or nearly all) of its Ranch Creek water to its South
Platte diversion points by using the South Platte Exchange .
1.J ~ation ot the south Platte Exchange During the
Renovation~-
During the period when the South Platte exchange is being
exercised, Denver will not exercise a senior exchange without prior
notice to Englewood and completion of passage of any of Englewood's
water which has been released from Gross or Ralston Reservoirs to
t. ,e Scutt,. Platte unless Denver's exchange will not reduce the
otherwise available exchange capacity at Englewood I s point of
diversion be l ow Englewood's proposed rate of diversion, i.e., once
Englewood has started a release from Gross or Ralston to the
Platte, Denver will not reduce the exchange capacity (by a Denver
exchange) until Englewood's release can be stopped and the exchange
completed. Englewood will agree to prompt t ermination by Denver of
the release of Englewood water from either Gross or Ralston. I f
Denver has made any out of priority diversions in its South Platte
Reservo irs or direct flow facilities during the time Englewood has
performed a "South Platte exchange ," then Denv er will release the
next day any out of priority overdiversions in t he owe-the-river
account that Englewood was entitled to but did not divert on its
"South Platte exchange." "Out of priority diversions" include, as
tn any exchange, the am ount by which diversions exceed substitute
s,,pp ly.
2
1,4 Englewood and Denver have a conceptual dispute ove r this
issue: Is the priority date of an exchange effective when there is
nn downstream call which is being satis !ied by the s ubH itute
supply? I.e., is the exchange divei:si ,•n priority effective against
diverters when there is no call r·xisting below the point of
introduction of substitute suppi ~? Nothing in this agreement is
i ntended to resolve that dispute.
1.5 ~. This agreement shall be effective only during
the renovation period, which shall end wh •in the Moffat Treatment
plant has been restored to that level of operating capacity
existing on July 1, 1991, which is 180(mgd).
Dated this ___ d i, ' ,,'.-:
CITY AND COUNTY OF DENVER,
acting by and through its
BOARD OF WATER COMMISSI ONERS
By~t.~~
Director of Planning
A1t'IIOVEO AS TO mRM:
U6Al DIVISI ON
BOARD of WATER COM:,11 ss 10:;rns
fJ~ ~1 s &x
______ , 1991.
CITY OF ENGLEWOOD
By
Stewart Fonda
Utilities Man3ger
Interim Operating Agree ment
Over the past f o ur years the Division of Water Resource s has
d e veloped an operating procedure, in c onjunc tion wi th the Denver
water Departmen\, that is designed to protect wa t e r rights,
monitor river o perations on the South Platt e River between
Chatfield and Strontia Springs Reservoirs, 111 to operate
Chatfield Reservoir. Due to the nature or on-·c hannel reservoi c
operations, this procedure uses a "day-late" a ,'.'.,·ounting concept
and river administration accounts at each r ~~~r voir. This
procedure transforms the large volu .. a of informati on that is
generated on a daily basis by the Denver Water Department's raw
water collecting system into a manageable set of data that is
easily understood. Furthermore, this data set can be transferred
via telephone to the Division En •J-' ne er to aid him in determining
the proper setting for the outflo 4 gates at Chatfield Reservoir.
This data s et is recorded on a document enthled the "Chatfield
Rive r Release Checksheet," a copy of which is attached. Efforts
are continually being made to improve this operating procedure as
more information about the workings of the riv,er/reservoir system
is gained.
The following is a list of operating practices that the
parties (Div ision Engine er, Denve r , and Englewood) to this
opera ting agreement have agreed upon:
1) During t he 'irrigation season' as determined by the
Division Engineer and upon request y the Division
Eng i neer, De nver will repor~ t o t h e Division Enginee r
1
or his designated representative, the information on
the Chatfield River Release Checksheet by no later than
2:uo p .m. of each day. This deadline may be extended
by the Division Engineer at his sole di s cretion to
acco111JUodate valid circumstances that would prevent
Denver from meeting t h is deadline. During the non ~
irrigation season, this reporting requirement may be
altered to exclude weekend reporting or similar
circumstances. Denver will continue to transmit on a
weekly basis its full accounting sheets to the Division
Engineer or his designated r~presentative.
2) The r.umulative administrative ,iccount at all of
Denver's reservoirs , except Chatfield, will be allowed
to fluctuate betw,;en plus or minus lt of total storage,
with the intent being to keep the accounts as close as
possi,,le to zero. The Division Engineer and Denver
agree to take all practical steps to keep Denver's
administrative accounts at all of Denver's South Platte
reservoirs within 1:1 ,e limits set forth herein.
3) A larger administrative account shall be used at
Chatfield due to the special circumstances associated
with that reservoir. These circumstances include
ownership and control of the reservoir by the Corps of
Engineers, water storage rights owned by Denver in the
reservoir, the transfer of upstream water accounts into
the reservoir, and the responsibility of the Division
2
Engineer for setting the outlet gate at the reservoir.
A study is und erway to determine the appropriate size
for this account, but the Division Engineer a nd Denver
will take all practical ,ste!,,. to maintain the
c umulati ve administrative accou nt during Mar c h l to
Octobe r ~l at 55n ,,en , f ; 1•t (plus or minus) and du,:ing
the period Nove mb er 1 •-_, February 29 a t 275 acre feet
(plus or minus). Th o parties recogni z e the need for
appropriate administrative flexibility during periods
of significant changes in stream flows and river ca l l
patterns. If the foregoing limits are exceeded, it is
the responsibility of the Division Engineer to obtain
the necessary releases from Chatfield. If there is no
water stored by Denver in Chatfield which may properly
be released under the applicable decree, the n the
Division Engineer shall order the requisite release
from other Denver reservoirs.
The Division Engineer agrees to continue to
calculate "Required Chatfield Release" and display same
on its "Chatfield Check Sheet" in the same manner as it
is cur rently ca l culated.
4) As with all exchanges, Denver's exchanges through the
strontia Springs -Chatfield reach of the South Platte
will be limi~0 rt to the natural f low in the river that
is i n excess the in-priority wate r rights between
the exchange points . The ba sic c oncept of the
Chec ksh e t c omputes natural flows at Strontia Springs
and ~h -t fiel d Reservoirs, and s ubtracts all in-priority
water rig :,~~ from the natural flow to ensure that those
in-priority water rights and exchanges are not being
injur ~. The remaining natural flow would be labeled
as the river exchange potential in that reach.
5) The adc inistrative account at Chatfield will not be
credite d to Denver's authorized storage a c c ount. The
administrative account, however, will not impair
Denver's ability to store inflow which Chatfield
Reservoir is legally entitled. (i.e., spilled water
will reduce the administrative account.)
6) Denver shall separately account for water stored in
Chatfield under its 1975 and 1977 storage rights.
In addit i on to having agr eed to use the above-described
operati ng procedures to administer exchanges on the upper South
Platte, the Division Engineer, Denv er, and Englewood are
participating in t he Upper south Platte Management Program . This
is a cooperative project among upper South Platte water u sers to
use the latest computer technology to prov ide a tool to the State
Engineer and Division Engineer for river a dministration. Other
pa rticipants in this project includ ~ Aurora, Thornton, Centennial
Water and San i tation District, FRICO, and Consolidated Ditches,
If this project continues through c~mpletion of Phase II, it is
anticipated that the use of this ne.-technology, in conjunction
-with the Checksheet procedure, will aid the State and Division
RI ~-------
with the Checksheet procedure, will aid the State and Division
En gineers in their efforts to meet the gro i ng dema nds for more
precise, effective , and timely water rights adm inistratio n .
The parties agree that the Division Engineer or State
Engi neer may modify or terminate the operating practices
described herein at any time so long as any aggrieved p arty may
seek the appropriate administrative or leg al relief. Further,
during the period of sixty (60) days after the fifth anniversary
h ereof and each successive anniversary date , Englewood or Denve r
may terminate this interim agreement by written notice delivered
to the others.
Nothing in this interim agreement shall oe construed to
limit or affect the statutory authority granted to the State or
Division Engineers by S 37-92-501 (1990) ~
CI TY AND COUNTY OF DENVER,
acti"g by and thro gh its
BOARD OF WATER COMMISSIONERS
ByKe:£~
Director of Planning
APP~OVED AS TO ,OR.°"'
l£6ftl D,V ,SIC ~
BOARD of \\•},i(R C0\1i/.l~,Sic::J(•;
t~_i_&L
5
Ci:TY OF ENGL EWOOD
By __________ _
Stewart Fonda
Utilities Manager
DIVISIOi,f ENGINEER
WATER DIVISION NO . l
By _________ _
Alan Berryman
fi~~§ ... :. :.:f~ -·· H •• ...... :: .. ., .. jj ... --•o-··.:ti...: ::i: -=--ii=~,,-,,.,;_ :,:::!!:-1 -u--~•• -----•-~:~ == !_:" ,; =:.:-:a = L
--·•-i r· --; ----1-""="=i n
•--: jj ;J n:::
AGREEMENT
1. Introduction: Parties an d Purpo ses
The parties to this agreement are the CITY OF ENG LEWOOD, a
Co lorado municipal corporat ion (Englewo od), and the CI TY AND
COUNTY OF DENVER, ACTING BY AND THROUGH ITS BOARD OF WATER COM-
MISSIONERS, a Colorado municipal corporati on (Den ver ). Englewood
filed s uit against Denver (and otherQ) in Wate r Court for Division
1 (the nistrict Court for Weld County, Co lorado) in case number
90CWub2 (the litigation). Englewood and Denver have agreed between
themselves as follows and as part of their agreeme nt have agreed
to dism i ss part of the litigation with prejudice, to dismiss part
without prejudice. The portion of the litigation relating t o the
1953 Agreement is subject to a separate settle ment agreement.
2. wintertime 1106 Pri gritv .
2.1 Introduction . The decree entered in C,A. 1706, aou,1las
county District Court, nunc pro t une February 9, 1950, a l lowed
Englewood to divert on c ertain wa ter rights described therein (the
17 06 rights) during the non -irrigation season, subject t o various
terms a nd conditions. Englewood's present principal point of
diversion on those rights is at Uni on Avenue , below Chatfield
Reservoir. (The decree i n Cas e Number 80CW035 established an
alternate point of diversion at Chatfield Reservoir). The
non-irrigation season for the 1706 rights was defined wi th
particularity in the decree in case nu mber 80CW035, Water Division
1 (80CW035 ) to be November 1 through March 31 . For convenience,
the non-irrigation season is hereafter re .:o:rred t o as "winter,"
and the 1706 rights when exer cised in winte r are referred to as
1
the •wint er 1706 rights.• The 1706 rights whe n exercised dur ing
the irrigation season are refe rred to as th e "summe r 1706 rights.•
Tho terms a nd condit ions of C.A. 1706, insofar as they
dosc ribo tho relationship between Denver's water rights and the
winter 1 706 rights, have been the s ubje ct of a protracted dispute
between Engl ew ood and De nver. The parti e s agree as f ollows.
2.2 Priority or En glew ood's winte r 1106 Riahts vis-a-vis
Denyer ' s Rights. Englewood's winter 1,706 rights are senior in
prior ity to all Denver rights having a date of d ecree which is
l a ter t han February 9, 1950, and Englewood 's winter 1706 rights
are junior i n priority to all Denver rights having a date or
Jecree which is February 9 , 1950, or earlier . Further, Englewood
agre es not to exercise a call on the winter 1706 rights against
any rights of Denver which are diverting directly, or for storage
or by exchange above the Waterton gauge. (No limitation is placed
on t h e summer 1706 rights).
In case number BOCWOJ9, Water Division 1, Denver changed the
p oint of diversion of certain of its senior rights which had pre-
v i ousl y diverted at Conduit J O, to allow an alternate point of
d iversion at Chatfield Reservoir (wh ich is below Co ndu it 20 and
above Union Avenue). Diversion ma y be ma d e at Chatfield Reservoir
only if the water diverted would have been physically and legally
a vailable for diversion at Strontia Springs and was bypassed to
Cha tfield (less stream los ses ), per the terms of the 80CWOJ9
decree.
Upon request from Englewood, Denver will also include in its
reporting to Englewood, as described below, the i nforma tion
2
nec essary for Englewood to ascertai n with reasonable c ertainty
wheth er the for e going limitation has been com pl ied with.
J. Di smissal of counte rcla i m.
De nv e r has fi led a counterclaim i n 90CW08 2 . De nver agrees to
dism i ss its counterclaim with p rejud ice , a nd in that regard, to
i lea motion s eeking dismiss al with prejudice on the second
business day after signature of this agreement. (Englewood will
c on s ent to the motion.)
4. I ntermittent Operati on o f En glewood's Winter 1106 Rights.
4.1 Introduction. Englewood obtains its water during winter
by direct flow diversions at un i on Avenue on its winter 1706
rights. To im prove the qual i ty of the water it diverts, Englewood
desires to place a call for the full diversion flow rate under its
winter 1706 righ s, which is 14 .682 cfs, and div~r t f or a period
at that rate, and then cease diversions until recommencement is
necessary at the 14.682 cfs diversion rate.
4 .2 Englewood May Make Intermittent Diversions on its Winter
1706 Ri ghts and Place Calls If Neces s ary.
4.2.1 "Intermittent Diversions" means diverting and
ceasing to divert in such time intervals as require no more
than two gate settings per day at Chatfield Reservoir . The
parties may , by mutual agreement, seek to obtain permi ssion
for more than two gate settings per da ·, and to modi fy the
intervals accordingly .
4.2.2 Den ver agrees that En glewo od may make intermittent
diver sions on its winter 1706 r 'qhts, a nd pl ace calls during
the periods of diversion, in order t o e nable Englewood to
divert the full 14 .68~ ~fs on those rights (or such less er
amount as Englewood chooses), the diversions not to exceed
the lesser o f (1) the amount which Englewood's facilit ies at
Union Avenue are capa ble of diverting or (2) 14 .682 cfs. In
consideration of this agreement, and with respect to
Englewood only, Denver waives a ny claim that such operations
are improper or illegal under Colorado law or administrative
practice, and waives any injury which may result to Denv er 's
water rights from sue~, operations. The calls may be placed
formally or may be ma d e• informally, by mutual agreement or
practice. The parties will endeavor to place or op~rate the
calls informally, so that the requisite water ~ypaPaes
Chatfield Reservoir without im position of a formal call.
Englewood will not call for an amount iri excess of 14.682
unless a bypass requirement is imposed up0n Englewood.
Englewood will not seek an imposition of a bypass requireme nt
and Denver may contest an attempted imposition of such a
requirement.
4.2.3 By stating in the preceding paragraph that
Englewood may call during the period of full diversion, the
parties do not intend to waive or alter the provisions of
Colorado law and administrative practice which apply to
calls. The following examples constitute some of the
understandings of the parties concerning such calls.
(a) If there is 14.682 cfs or more available at
Union Avenu e for Englewood to divert, Englewood may not
place a call.
(b) The amount which mu s t by-pass Denv e r's storage
right s at Chatfield will be only enough to s atisfy the
call. E.g ., if th e re is 10 cfs which Engl ewood c an
divert at Union Avenue, and Englewood calls for its
maximum diversion rate (14 .682 cfs), the releases shall
only be enough to enable Englewood to divert an
additional 4.682 cfs at Union Avenue.
(c) The releases from Chatfield will be made only
out of that native inflow to Chatfield which is legally
available for diversion under the 1706 rights. E.g.,
there need not be releases from Denver's properly stored
water in Chatfield, or bypasses of water properly being
diverte1 by Denver at Chatfield under its senior 80CW039
rights. (Nothing in this subparagraph (c) shall reduce
Denver's obligation;; concerning its "administrative
accounts" and "accounting exchanr-e s" at Chatfield which
are separately provided for). "Administrative Accounts"
and "Accounting exchanges" are defined below.
4.2.4 To prevent waste, Englewood will take all
reasonable and prac tical steps to divert all water legally
available for diver sion at Union Avenue, during those periods
when Englewood places a call. However, Englewood need not
purchase or install new equipment or diversion facilities to
accomplish that end . Englewood will be required to properly
malntain and diligently opera te its equipment and dJ.version
facilities. Any c hanges in equipment or r.iversion facilitles
made by Englewoo will be done in such~ wa y so as, among
5
other things, to mi nimi ze waste to t he extent r e asonably
practical.
Denver recog nizes that some of t h e water i n the river at
Union Aven ue at any t ime may not be lega lly a vailable for
diversion by Engl e wood at Union Avenue, and Eng l ew ood has no
obligation to attempt to divert same.
4.2 .5 Englewood agrees, at its expense, either 1) to
modify the Englewood gauge (the "Englewood gauge" is the USGS
gauge immediately upstream from Union Avenue); 2 ) to "rate"
the present notch in its diversion structure at Union Avenue;
or 3) rate a new notch in its diversion structure, so that
low flows can be measured as accurately as reasonably and
practically possible to comply with this section. If
Englewood chooses to rate either the new or existing notch,
Englewood shal l install a continuous recording device at the
new or existing notch, and then provide copies of the
recordin,s to Denver upon request. Upon request, Englewood
shall promptly provide to Denver all information neces sary
for Denver to ascertain with reasonable certainty whether
Englewood is complyi ng with the foregoing limitation on
diversion at Union Avenue. Englewood will no t ma ke
intermittent diversions until such measurements can be made
with r<1 asonable cert ainty to the sat isfaction of the Division
Engineer and Englewood has s o not ified Denv er.
4.~.6 Under 80CW035, Englewood ma y divert und er i t s 17 06
rights «t Chatfield. No thing herein shal l preclude such
diversions, and Englewood may conduct intermittent winter
6
diversions at Chatfield, subject to the t erms hereof, Nothing
herein shall waive or amend a ny part of the decree in 80CW035
a nd any diversions by Englewood at Chatfield shall be made
only in compliance with the terms of 80CW035.
s. Priority o f penyer•s Metro sewer-to-Chatfield Exchange.
In case number W-8783-77, Denver obtained a decree for an
exchange from the outfall of the sewage treatment plant of
Metropolitan Denver Wastewater Reclamation District (Metro Sewer) to
Chatfield Reservoir . (The Metro Sewer outfall is belo~ the headgate
of the Burlington Ditch and above the confluence with Clear Creek.)
The priority of that exchange is agreed to be 1977.
6. Denver's Recreational Decree at Chatfield; Releases from
the Recreational Decree Not to be Made for Mun p...i:ru\l
Purposes.
6.1 Denver owns two decrees for storage at Chatfie ld. One is
a decree for recreational use which wa•· entered in case number
W-7997-75 and has a 1975 priority (the recreation decree). The
other is a decree for municipal use which was entered in case
number W-8783-77 and has a 1977 priority (the municipal decree).
The parties have a dispute over whether Denver has been making
improper use of water stored under the recreation decree for
municipal purposes.
6.2 Denver ag rees that at all times a fter date hereof the
1975 recreation decree sha ll not be exercis ed during periods when
En9lewood is diverting i ts "South Platte Exc hange" so as to reduce
the exchange capacity at En glew ood's point of divers ion below
Eng lewood's rate of. introduction of substitute supply. The "So uth
7
Platte Exchange" is all those exchanges conditionally decreed in
case Number W-8456, Water Division 1. For purpos es of this
a greeme nt and the 197 5 recreation decree only, Denver agrees that
the South Platte Ex c.hange will be "deemed to be operating" even
though there is no cdl in effect from below the point of
introduction of Englewood's aubstitute supply . As to all other
exchanges, Englewood and Denver have a conceptual dispute over
this issue: Is the priority date of an exchange effective when
there is no downstream cal~ which is being satisfied by the
substitute supply? I.e., is the exchange diversion priority
effective against diverters when there is no call existing below
the point of introduction of substitute supply? Nothing in this
agreement is intended to resolve that dispute .
6.3 Englewood agrees that it will not object to Denver's
allocations of evaporation losses between the recreation and
municipal decrees; nor will it object to Denve.r•s allocation of
stored water between the two decrees at the time of initial
storage. For example, if water is stored on September 1, 1991,
Denver may allocate the storage to whichever decree it wishes, so
far as Englewood is concerned. Likewise, Denver may make such
allocations between the two decrees of water presently in storage
as it chooses. Englewood agrees not to contest Denver's presently
filed application in Case No. 88CW143 to make storage absolute,
with respect to diligence or amount made absolute, ~ as to
the application regarding the 918 acre foot exchange. So long a s
those agreements des c ribe d in paragraph 10 are unchanged and in
e ffect, Englewood will not oppose further applica tion s to make
8
s tor age absolute as to that decree, s o long as the cumulatlva
amount to be made abs olute does not exceed 26,692 acre feet.
En glewoo d ma y contest diligence a nd exchange matters as to future
applications concerning that dec ree.
6.4 Denver agrees not to ma ke releases of water allocated to
the recreation decree for municipal purposes, unless De nver
obtains in Water Court a change to its present decree. In a
proc e~ding f~r such a change, water stored under the 1975 decree
and r eleased for municipal purposes shall not count as historic
use.
7 certain Denyer Exchanges from Chatfield /Acc ounting
Exc hanges): Chatfield Administrative Accounts; Chatfield
Accountinq.
7 .1 For accounting purposes (witb the knowledge of the
Division Engineer), Denver periodically records in its accounting
records, e xchanges from Chatfield to upstream points in which the
amount released to the rive r from storage in Chatfield is less
than the amount diverted or stored upstream. This accounting
practice increasus the administrative account at Chatfield in
order to likewise reduce the administrative accounts at the
upstream exchange point. Such exchanges are hereafter referred to
as accounting exchanges. The "administrative account" is t hat
account which is presently s o titled on Denver's reservoir
accounting sheets. In the vernacular, it is sometimes called the
"owe-the-river account." It generally reflects the diffe~·e nce at
any time betwee n the amo unt actually in s torage i n a reservoir and
the a mo unt which s hould legally have been in that reservoir, and
9
ma y be po s itive or n e gative. I f it is pos itive , the r eservoir i s
often s ai d to •owe the river•; if it i s ne gative, i t i s often s aid
that "t he r iver owes the ·:eser voir." D .. nver agre es as fo llows
wi th respec t to accounting e xchanges.
If during the period March 1 through October 31 , the
administrative a ccc,unt at Chatfield exceeds 5 '. ') acre f e et
(positive; (i.e., Chatfield owes the river more than 5c J acre
feet), and the outflow to the river from Chatfield i s l e ss than 30
cfs while Englewood is diverting at Union Avenue, then Den ver
shall not make or record accounting exchanges. Nothing herein
shall reduce , waive or impair Englewood's o t herwise existing
rights t9 place calls and have its calling rights s atisfied, and
the making of .accounting exchanges or the ability to make same
shall in no way impair such r.i.ghts.
If during the period No vember 1 through February 29, the
administrative account at Chatfield exceeds 275 acre feet
(positive), and the outflow to the river from Chatfield is less
than 10 c fs while Englewood is diverting at Union Avenue, then
Denver s hall not make or record accounting exchanges.
If Englewood i s not diverting at the Cha t field manifold
pursuant to 80CW035, then rele ases into the manifold do not count
agains t the 30 c fs and 10 cfs releases to the r i v e r d e scribed
a bove.
If Englewoo d i s dive rting f r om tt.e South Platte Ri ver o nly at
the Ch atfield ma nif old then the 30 c f s -~nd 10 c f s requ ireme nts
will be deeme d t o be sat isfied i n ful l .
10
If Englewood i s diverting at t h e Cha t field ma nifold pursuant
to SO C\!.~1 .0: and is also diverting at Union Av e m,3, then the full 30
cfs a nd 1 0 cfs requirements shal l apply.
Rele as e s to the fish hatchery, which is below Chatfield, do
not count as part of the 30 cfs and 10 cfs requirements.
7.'-'Cher e is attache-\ hereto as Exhibit A a document
entitled "Interim Operating Agreeme'lt" consisting of five pages,
which the p:.rties contemplate will be signed by the parties and by
the Divis i on Engineer. Paragraphs 2, 3, 4, 5 and 6 thereof, and
the provision for termination thereof, are lncorporated herein by
reference and shall be binding upon the parties (subject t o all
terms c,f this agreement) e ven if the Division Engine2r should not
sign the "Interim Operating Agreement" in its attached form or at
all.
a. Chatfield Manifo.l!L.
Englewood diverts water from Ch~tfield via the ditch outlet
manifold widch passes through Chatfield Dam. Englewood I s
diversions through that manifold (or any structure hereafter con-
structed to operate in lieu of or in addition to that lllanifold)
shall be deemed to be diversions which occur below Chatfield and
are entitled to the appropriate part of any re leases ma de by
Denver f rom Chatfield to effectuate an exchange fr om Chatfield to
points upstream.
9. Denver 1 s Reporting ~egµirernents; Englewood 's Reporting
Re quirements.
9.1 Upo n request from Englewood, made on or before March 14 o f
each year, Denver agrees that i t will provide i n formation to
11
Englewood as follows during the period o! one year f ollowing the
particular March 14 . Failure of Englewood t o reques t for one year
or a series of year s sha ll not constitute a waiver or r elin-
quishment o! Eng lewood's right to requ ire the information for a ny
subsequent year or years.
The information submitted s hall be that i ncluded in the pres-
ent Division Engineer's Chatfield check sheet fille d out by
Denver's Water Resources section . A copy is attached as Exhibit B.
Denver may change the format of the information s o long as that
which is presently inc 1ed continues to be supplied.
The in!ormati , v n the Checksheet whic., is prepared on all
normal business days will be t ransmitted to Englewood by fax prior
to 2:00 p.m. or that day. The information prepared as of days
which are not normal business days will be transmitted by fax to
Englewood prior to 2:00 p.m. of the next business day. Englewood
understands that corrections to the Checksheet may be made by 5:00
p.m. of the day the Checksheet was prepared.
The 2:00 deadline may be extended to accommod a te u n f oresee n
circumstances or causes beyond the control of Denver; provided
that Denver shall resume tran s miss i on as promptly as practical .
Englewood may, at any time , (but under the constraints set
forth below) r egardless of notice given before Mar c h 14 or the
lack t h ereof, c a ll Denver a nd obtain a ll currGnt informat i on
concerning f l ow rates of Denver's diversiuns , including, but no t
limited to, diversions into Footh i'.ls Tunne l, conduit 20, Platte
Canon pump s tation, and the Highline Ca nal; f low rates of storage
releas es; outtlow r ates on all Denv er res ervoirs, including, bu t
12
not li~ited to, Chatfield; the previous day's calcula ted inflow
i nto each resP~voir and the i nc rease or decrease in s torage; the
flow r~te s and points of i ntroduction and withdrawal of each
exchange then being operated; and the amount of flow di scharged
from the Roberts Tunnel. Englewood understands that certain of the
necessary information must be obtained from third parties or must
be calculated and may not be available until 10:JO a .m. or
possi bly , later,
Prior to May 15 of each year, Denver will provide Englewood
with its weekend duty roster f or the period when t h e State
Engineer requires weekend staff from Denver. The roster may be
periodically updated. It will include names and phone numbers for
the duty personnel who have access to the information above
described .
With respect to periods when the Division Engineer does not
require weekend stl\ff from Denver, Denv e r will provide Englewood
with the names and telephone numbers of caretakers from whom
Englewood can obtain the informa~ion which Englewood requests, to
the extent they collect same .
Unless Englewood's cu rrent demand (i nc l uding demand for an
anticipated imme diate diversion into McLellan Reservoir) is
unsatisfied, or unless Englewood contemplates immediate operation
of a n exchange, or unless there is a nother reason for an immediate
and pressing need for the information, Englewood will not reque s t
informati on un ti l aft er 2:00 p.m. (unless i t is a nticipated that
the r equisite Denv er per~onnel wil l no t be available a fter 2 :00
p.m. e .g ., on a week e nd). In genera l, Eng l ewoo d will not
13
unreasonably request informati,,n Go as to unduly burden D, nver' s
personnel.
9.2 In the same man ner established by paragraph 9.1, Denver
may take steps to obtain all information from Englewood necessary
for Denver to perform its operations and accounting, whi c h shall
in general be all the Englewood information which is of the same
type or nature which Denver must provide. Specifically, but not
as a limitation, Englewood will provide the following:
(a) Diversions at Union Avenue;
(b) Diversions at the Chatfiel d manifold;
(c) Diversions elsewhere on the South Platte;
(d) Boreas Pass Ditch flows at the gauge for same;
(e) Releases from McLellan Reservoir;
(f) Exchanges being operate d by Englewood;
(g) During the period of intermittent diversions on winter
1706 rights, the amount by-passed at Union Avenue (if
flows are beneath 15 cfs).
Items (b) and (g) and beginning in 1992 Item (d) will be
provided to Denver before 10:00 a.m. on e c1ch bu,dness day, with
res pect to that day and any preceding d<>.:;"s· when D'?nver does not
furnish the Chatfield Checksheet. All other items (except Item d)
s hall be provided before 2:00 p.m. on each required day.
10. Administration.
Both of the parties will seek to obtair. administration which
is in accorda nce with this Agre.ement.
The parties recognize that operation of Chatfield Re s erv,>ir
is de s cribed, in whole or in part, by tw-i contracts, one e ntitlea.
14
contract between the U.S. Army Corps of Engineers a,d the State of
colorade>, date d March 1 , 1979, and the other contract dated April
3, 1979 between Denver and the State of Colorado. Nothing herein
shal l a l.ter, amend, waive or construe those agreements. Englewood
underst and that certain aspects of Chatfield operations may be
beyond the control of Denver, but Denver will use its best efforts
to effe<:t u ate this agreement.
11 . Permanence of the various Provisions of this Ac~;
concurumce o f Federal and state Officials: Dismissal.
11..1 Int r oduction. certain provisions of this Agreement are
intended to last perpetually, and ome are intended to be
operating agreements which may be terminated by either party in
the manner set forth below.
11 .2 Perpetual Agreements. The provisions of Paragraphs 2
(Winter 1706 Rights), 3 (Dismissal of Counter Claim), 4
(Interm:l ttent Operation), 5 (Priority of Metro-Chat.field
Exchange), 6 (Denver's Chatfield Decrees), and 8 (Chatfield
Man ifold) are intended to have perpetual effect .
11 .3 Terminable Agreements. The provisions of Paragraphs 7
(Denver Accounting Exchanges) and 9 (Reporting) a re an attempt by
the parties to resolve va rious disputes arising from Denver's
operation of its diversion and s torage system on t h e South Platte
Riv er. Neither party can he cert ain a t this time whether those
provisions will prove to be both practica l and beneficia l .
Furthermore, those provisions may be s upers eded, i n whole or i n
part, by future administrative decisions of th e State or Di ·,ir,ion
Engineer, or by the res ults of s uits brought by third parties, The
15
parties will seek to obtain a nd keep appr oval by the Division
Engineer or State Engineer . The parties will ma ke a n e ffort in
good faith ov er a minimum of fiv e years from date hereof, to
comply with t h ose provisions and to make them work i n a benefic ial
and practica l mann er , After the e nd of the five -year per iod (or
soo~ar if effectuation is vitiated by administrative order or suit
by a third party), either party may declare itse lf no longer bound
by those provisions, by written notice d ,!livered to the other
during each period of 60 days which follows each anniversary date
of this agreement. In that event, either party may seek such
redress from the State Engineer or Division Engineer or the courts
as it deems a ppropriate.
In addition, if prior the fifth anniversary date he reof an
agreement entitled "Interim Operati ng Agreement" between De nver,
Englewood and the State En<,;ineer, entered into contemporaneously
herewith is rendered ineffective, then either party may terminate
paragraph 7 hereof. The "Interim Operating Agreement" contains
l imitations on the administrative accounts at Denver's reservoirs
above Chatfield whic h are essential to the limitations on
accounting exchanges established by paragraph 7 .
11.4 Dismissal. Englewood will dismiss its complaint without
prej udice, except for the provisions the r eof re l ating t o the 1953
Agreement . Englewood ma y not su• conc e rning administration or
reporting which are conducted in accordance with paragraphs 7 a nd
9 of this agreement, so long as paragraphs 7 and 9 are i n effect
and t h e "Interim Ope r ating Agreement " re ferenc ed i n the next
sentence is i,-, effect. Likewise, Englewood may no t sue concer,ting
16
udministration conducted in accordance with the "Operating
Agreement" between Denver, Englewood and the State Engineer
entered into contemporaneously her e with, attached as Exhibit A,
which is incorporated h erein by reference, so long as that
agreement remains in effect. In future, Englewo od will seek
i njunctive relief only concerning administrative or reporting
practices or lack thereof which oc cur or may occur after. date
hereof, and .will not sue concerning its complaints over such
practices as they existed prior to date hereof and to this limited
extent Englewood's complaint shall be dismissed with prejudice;
but no inference is made that Englewood has acquiesced in or
waived any past administration or reporting practice, or that such
practice or any recorded information was valid or invalid.
Nothing shall preclude Englewood from suing to insure proper
enforcement of valid calls placed by Englewood, ho wever.
Nothing herein shall preclude Denver or Englewood from suing
to obtain proper ·compliance with the terms and conditions set
forth herein.
The provisions hereof which are elsewhere stated to be
permanent agre~ments are accords and satisfactions between the
parties as to the matters set forth therein.
DATED this __ day of ______ , 1991.
CITY AND COUNTY OF DENVER ,
acting by a nd through its
BOARD OF WATER CO MMI SSIONERS
By ;//1/J!U
Ken Mitche ll
D~rector of Planning
Ai'PRoVEO AS TO ro,v,,
LmL DIVI SIO N
BOARD of Wtl!ER COMl>~iSSIO;i [R'S/.
By S. (
17
CITY OF ENGLEWOOD
By -,----,---:,--------Stewart Fonda
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