HomeMy WebLinkAbout1995 Ordinance No. 050•
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ORDINANCE NO . G:)
SERIES OF 1995
BY AUTHORITY
COUNCIL BILL NO . 56
INTRODUCED BY COUNCIL
MEMBER HATHAWAY
AN ORDINANCE AUTHORIZi~;G AN INTERGOVERNMENTAL SETI'LEMENT
AGREEMENT BETWEEN THE CITY OF ENGLEWOOD, COLORADO, CITY AND
COUNTY OF DENVER, COLORADO AND CYPRUS CLIMAX METALS
COMPANY PERTAINING TO WATER RIGHTS .
WHEREAS , the City of Englewood owns water rights decreed in C.A 657 and
Case rso . W-750-78 ("Cabin-Meadow Creek Water Rights") which divert from
tributaries of th e Fra ser River in Water Divisi on Number 5 for municipal u&e ; and
WHEREAS , De rver o"ns and operates a water collection system which
divuts water und er it!-\Vt\t.e r rights from the FTa ser and Williams Fork. Ri ver
ba sins for municipal u iE., .,.,,d
WHEREAS , Cyprus, through its wholly -owned subsidiary, Climax
Molybedenum Company, owns and operates the Hend erson Ore Reduction Plant
("Henderson Mill") located in the William s Fork valley, which processes ore from
th e Henderson Mine ; e.nd
WHEREAS , Cy prus need s a firm water supply to insure its ability to proces s ore at
maxi mum productio n capacity during periods of drt1ught ; and
WHEREAS , Denver and Engl ewood entered into a Water Exchange Ac,eement
dated March 17, 1964 ("1964 Water Exchange Agreement"), and Denver, Eniilewood
and Cyprus entered into a Mod ification of the Water Exchange Agreement dated
September 2, 1969 ("1969 Modification"); and
WHEREAS , under the "1964 Water Exchange Agreement" and the "19 69
Mod ification" Den ver carries Cabin -Meadow Creek System water throuet, its water
system and delivers, by trade or exchange , water to Engle•·,ood on the South Platte
Ri ver for municipal use with in the Englewood Service Area, and also ope rates its
Williams Fork Sy stem to provide wate r to Cyprus on the Williams Fork River fo r
use in th e Hend erson Mill ; and
WHEREAS, Engl ewoo d , Cypru s and Denv er agreed to share th e yield of water
pr oduc ed by th e Cabin-Meadow Creek Water Rights; and
WHERE AS, Englewood and Cyprus enured into an agreement dated September 25
1969 , es emended on September 26, 1969 , whereby Englewood and Cyprus agreed to
jointly develop the Cabin-Meadow Creek Water Rights and to share all costs
con nected with the de ve lopment , operat ion an d ma intenance of the Cabin -Meadow
Creek S ystem : and
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WHEREAS, Englewood developed, with Cyprus' aosist.ence, a collection ayat.em
("Cabin-Meadow Creek Sysu,m") to divert and carry walAor diverud under the Cabin-
Meadow Creek Wa!A!r Riehta; and
WHEREAS , disputes ha ve ari se n among the parties over various provisions of
these agreements and Denver's .operation of the Cabin -Meadow Cr-eek Syatem which
were filed in the ca ses consolidau,d under Case NO . 93 CV 5585 and (93 MDLOl0), in
Denver District Court; and
WHEREAS, the parties seek to resolve all dispu!A!s and issues raioed or which
could have been raised in Case No . 93 CV 5585, or arising from Den·,er'1 operation o
the Cabin-Meadow Creek Sya!A!m; and
Wf,EREAS, this new Agreement aupersedes the 1964 Wat.er Exchange Agreement,
the 1969 Modification, the Sepumber 25, 1969 Agreement and the Sepu,mbe-, 26, 1969
Am endm ent in th!ir entirety , and resolves all disputes and issues raised or which
could ha\•e been rai se d in Case No. 9 3 CV 5585, or arising from Denver's operation of
the Cabin -Meadow Creek System; an d
WHEREAS, the operational requirements under the 1969 Modification have
be co me onerous and burdensome and Denver seeks to operate the Cabin -Mead ow
Creek System and inugrau, the Cabin-Meadow Creek Wa!A!r Rights into Denver's
wat e r system unde r Den,·er's sole discretion without any canst.Taints or objections
fr om Englewoo d or Cy prus so long as Den ,•er fulfills its obligations under the n ew
Agreement ; and
WHEREAS . afler review by the Englewood Waur and Sewe r Boa rd at their August
8. 199 5 meeting, th e Englewood Water and Sewer Boa rd reco mm ends approval ;
NOW, THEREFORE, BE IT OR DAINED BY THE CITY COUNCIL OF THE CITY
OF E NGLEWOOD , COLORADO , AS FOLLOWS :
Sfailm..l . Th e ·· Settlement Agreement" between th e City of Englewood, the City and
Cou n ty of Den,•er , and Cyprus Climax Metals Company is hereby accep!A!d and
approve d by the Englewood City Council. The Mayor is authorized to execuu, and the
City Clerk to attes t and seal the Agreemen fo r and on behalf of the City of Englewood,
Col orado.
Sfl:l.iwL2 . The ··settlement Agreem en t" is attach ed as "Exhibit A".
Introdu ee d . r ead in full. and pa ssed on fir st reading on th e 2 1st day of August , 1995 .
Publi shed as a Bill fo r an Ord ina nce on th e 24th day of August, 1995.
Read by title and pa ssed on final reading on th e 5th day of September, 1995.
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Publi shed by Lille as Ordinance No .£0, Series cf 1995, on the 7th day of
September, 1995.
I, Loucr ishia A. Ellis , City Clerk of the City of Englewood , Colorado, hereby
certify that th e above and foregoing is a true copy_s,flhe Ordinan e passed on final
r eadi ng an d publish ed by title as Ordin•~ce No . .;Q., Series of 95 .
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EXHIBIT A
SET TLEMEN T AGREEME NT
Th i s Agreement made and entered into this_ day of 1995, by
and between the CIT Y AND COUNTY OF DENVER, acting byanothrough
its BOARD OF WATER COMMISSIONERS ("Denver"), THE CITY OF
ENGLE WOOD("En glewood"l , and CYPRUS CLIMAX METALS CCMPANY,
("Cyprus") (collectively, the "parties"),
WIT NE SS ETH:
WHEREAS, the City of Er.iglewood owns water rights decreed in
C.A . 657 and Case No. W-75C·-78 ("Cab in-Meadow Creek Water
Rights ") which divert f-r om tribut aries of the Fraser River in
Water Divi s ion Numb er 5 for munic ipa l use; and
WHEREAS, Denver owns and operates a water collection system
which d iverts water under its water rights from t he Fraser and
Williams Fork Rive:r basins fo r munic i pal use; and
WHEREAS, Cyp rus, throu gh its wholly-owned subs i diary, Climax
Molybdenum Company, owns and operates the Henderson Ore Reduction
Plant ("He nd erson Mill") located in the Will i ams Fork valley,
wh i ch processes or e from the Hende~&on Mine. Cyprus needs a firm
~ater supp ly to insure its ab ility to process ore at maximum
production capacity during periods of drought; and
WHEREAS, De nver and Englewood entered into a Water Ex c hange
Agreeme nt dated Ma rch 11 , 1964 ("1964 Water Exchange Agreement"),
and Denver, Eng l ewood and Cyprus entered into a Mod ification of
the Water Exchange Agreement dated September 2, 1969 ("1969
Mo difica tion"), under which Denver carries Cabin-Meadow Creek
System water through its water system and delivers, by trade or
exchang e, wat er to Englewood on the South Platte River for
mun icipal use within the Eng l ewood Servi ce Area, and also
operat es its Williams Fork System to provide water t o Cyprus on
the Williams Fork Ri.ver for use in t he Hende rs on Mill.
Eng lewood, Cyprus a.nd Denver agreed t o share the yi eld of water
produc ed by the Cabin-Meadow Creek Water Rights ; and
WHE REAS, Eng lew ood and Cyprus e ntered into an ag r eement
da t e d September 25, 1969, as amended on September 26, 1969,
where by Englewood and Cyprus agreed to jointly deve l op the Cab in
Meadow Creek Water Ri ghts and to share all costs connected with
the deve lopment , operation and maint enance of the Cabin Meadow
Creek System; and ·
WHE REAS , Englewood developed with Cyprus' ass i stance a
co ll e ction s ys tem ("C abin-Meadow Creek System") .by which to
dive rt and carry wa t e r divert e d un der the Cabin-Meadow Creek
Water Rights; and
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' • lfHtPJ:As, disputes have arisen among the parties over various
provisions of these agreements and Denver's operation of the
Cabin-Meadow Creek System . These disputes are described in the
pleadings filed in the cases consolidated under Case No. 93CV5585
(93MDLO10), Denver District Court; and
WHEREAS, the parties seek to resolve all disputes and issues
ra ised or which could have been raised in Case No. 93CV55B5, or
arising from Denver's operati on of the Cabin-Meado·w Creek System;
and ·
WHEREAS, this Agreeme nt s up e r sedes the 1964 Water Exclange
Agreeme nt, the 1969 Modification, the September 25. 1969
agreemen t and the September 26, 1969 'llllendment in their entirety,
and resolves a ll disputes and is'lues raised or which could bave
been raised in Case No. 93CV5585, or aris ing from Denver 's
operation of t he CMC System; and
WHEREAS, the operati ona l requirements under the 1969
Modification have become onerous and burdensome and Denver seeks
to operate the Cabin-Meadow Creek System and integrate the Cabin-
Meadow Cr eek Water Rights into Denver's water sys tem under
Denver's sole discretion without any constraints or objections
from Englewood or Cyprus so long as Denver fulfills its
obliga tions under this agreel!lent.
• NOW, THEREFORE, for good a nd ~aluable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as fol low s:
Article I
Definitions
l.l "Ad j1.•.s ted for Inflation" means the amount in the text of
th i s Agr eeme nt, adj usted by the percentage change in the consumer
price ~ndex. The ad justme nt will utili ze the U.S. Department of
Labo:, Burea u of tabor St a ti stics , Consumer Price Index for All
Urb an Consumers (CPI-U) fer Denver-Boulder, co, All Items. The
adjustment wi l l be made based on the most recent semiannual index
published at the time of tte adjustment as compared to the 1st half
y.ar index for 19 95. I f t his Index is no longer published then the
.most comparab l e pub lished i nd ex shall be utilized .
1.2 "April Meeting" means the meeting described in
subparagraph 6.2.4.l.
1.3 "Bas ic Deliveries" means deliveries made by Denver to
Eng l ewood pursuant to Sec t ion 3.2 or as adjusted under Article VI.
1 . 4 "Cabin-Meadow Creek System" or "CMC System" means all
area l property, app urtenanc es and structureJ associated with
U ng .. ewood' s right-of-way for the Cab in-Meadow Transmountain
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Diversion, which was ;ranted by the United States Department of the • '
Interior under Colorado Serial numl:>~r 011415, u amended, &nd
acqui red from privatP property owners as depicted by Sheets l
throug h 11 of the B•,ll Survey dated March 5, 1984 attached to
Exh ibit: G.
l.5 "CMC Exchanges" means the exchanqes described in
paragraph 3.3.5.
l.6 "Cabin-Meadow Cree k Water Rights" or "CKC Water Riqhts"
means tho se water rights conditi ✓.nally decreed in C.A. 657,
District Court, Grand County and decreed absolute in Case No. w-
750-78, District Court, Wa ter Division !lo. 5.
1.7 "Contract: Users of Paid DelivH .-:ies" is a term defined in
paragraph 3.3.5.
1.8
affiliate
of eithe=
Mill.
"Cyprus" means Cyprus Climax Metals Compa ny or its
Clima x Molybdenum Company, or the successors or assigns
of those entities, which operate the Henderson Mine and
1.9 "Cyprus Credit" mea.~s the amount of water provided to
the Henderson Mill by Den ver, as described in Section 4.2.
1 .1 0 "Delivery Failure" i s a term defined in Section 6.l .
1.11 "Denver" means the City and County of Denver acting by
and through its Board of Water Commissioners, a home-rule ~unicipal
corporation ex isting under the l aws of the State of Colorado.
1.12 "Englewood" means the City of Englewood, a home-·rule
municipa l corp )ration existing under the laws of the State of
Co lorado.
1.13 "E nglewoo d Servi ce Area" means the area within the
present and future boundar i es of the City of Englewood and the
areas within the Denver metropolitan area that Englewood serves
water un der contract or lease.
1.14 "Exchange Decrees" i s a term defined in paragraph 3.3.5.
1.15 "Incidental Water Ri gh ts" means t hose water rights
change d and decreed for use at the Henderson Mill in Case No. w-
528-76, Di stri ct: Court, Water Div ision No. 5.
1.16 "Lawf ully Divert i ble Amount" is a term defined in
paragr a?h 6.2.1.
1.1 7 "Major Repair" means repairs made to the CMC System, as
defined i~ paragraph 5.2.2.
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• 1. 18 "Mineable Ore Reserves" means the proven and probable
ore reserves attributed to the Henderson Mine in the .Annual Report
on Form 10 -K of Cyprus AMAX Minerals Company, or its successors or
assigns, filed with the Unite d States Securities and Exchange
Commission. For purposes . of this Agreement the Mineable O.re
Reserves for the Henderson Mine shall be deemed exhausted and the
Henderson Mine no longer in operation when the Hineable Ore
Reserves attr i buted to the Henderson Mine are reported in an Annual
Report on Form 10 -K as zero. (If a Form 10-K is no longer required
to be filed, then a comparable form or filing shall be
su.bst i tuted. )
1 .19 "On Demand" means deliveries of raw water by Denver to
Englewood accordi ng to Exhibit A.
1.20 "Pa id Deliveries" means d~liveries made by Denve r
pu~suant t o Sect i on 3.3 or as adjusted under Article VI.
1 .21 "Regulatory Action• means any action resulting in a loss
of yield to m e OIC System or the OIC Water Rights by any
legislature, court, administrative agency, regulatory body or other
go vernme nta l agency or entity which is final or implemented and
ready to be conteste/j and which is not premised on a physical
failure or inadequacy of the CMC System that can practically be
repa ired or restored . For example, an order of a court reducing
·• dive_sions from the CMC System in order to enhance the environment
would be a Regulatory Action. By contrast, an order of the
Colorado State Engin~er reducing the amount of water which could be
stored in Meadow Creek Reservoir, because of flaws in the dam ,
effect ive until repairs were made to the dam, would not be a
Reg ul atory Act i on (unless the parties unanimously determined that
repair was impractical and would not be done). The reduction in
y i e ld attributable to the problem with t he dam would be a "Delivery
Fa ilure", subj ect to Section 6 .1 (unless the parti es unanimously
determi ned that repair was impractica l and would not be done).
1.22 "Reusable Sources" mean s those sources of water owned
or controll ed by Denver a ,; depicted on Exhibit B which may be
lawfully used and reused to extinction, whethe = by reuse,
success ive use or by dispos i tion . Denver may ad1 reusable sources
to Exhib it B from time to time.
1.23 "Section" mean s a ll provision s under a two digi t number
including paragraph s and su.bparagraphs, i.e. Sect ion 6 . 2. A
paragr~h mean s a ll provisions under a t ~ree digit number i ncluding
s u.bpira;ra ph s , i .e. paragraph 6. 2. 4. A subparagraph means all
p rovi s ion s under a four dig it number o r more, i.e. subparagraph
6.2 .4.3.
1.24
.descr ibed
"Sk yl~rk Water
:.n Exh ibit F.
Rights"
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means t hose water rights
1.25 "Ute Park Storage Right" means the water right decreed
for use at the Henderson Mill in Case No. W-528, District Court,
Water Division No. 5.
1.26 awater Year" means the aMual period from April 1 to
March 31.
1.27 "Williams Fork Diversion Project" means all existing
and future water collection, transmission and stor age facilities
owned by Denver located in the Williams· Fork River wa tershed ab~ve
the Leal gage.
1 .28 •wrn Re placement Account" means the William.! Fork
Reservoir Rep acement Account defined in paragraph 4.3.2.
1.29 "W illiams Fork System" means all existing and !uture
water collec-;i on, transmission and storage facilities own l'1 ll v
Denver in the Wi l l iams Fork River watershed which divert and ~t c r e
under the dec=ees entered in C.A. 657 and C.A. 1430 includi~g the
Wi lliams For k Di version Project, Darling Creek extension, Williams
Fork Reservo i r, and any extensions or reconfiguration thereto. All
Denver water rights other than those decreed in C.A. 6S7 and C.A.
1430 are excluded from this definiti on .
Article II
Operation of the Henderson Mine
2.1 Henderson Mine ODerations. The parties agrE e that for
the purposes ot this Agreement the Henderson Kine will be dmll.\/l ed to
be in operati on as long as Minable Ore Reserves are attribltl:eci to
the Henderso n Mi ne in the Annual Report on Form 10-K fi)~d witn the
United States Securities and Exchange Commission by Cyprus AMAX
Minerals Company or its successors or assign.s. So long as Kineable
Ore Reserves are reported for the Henderso~ Mine, interruption or
curtailment o: Henderson Mine ore production or Henderson Mill 1re
refinement s ha l not constitute cessation of operation of t:he
Henderson Mi ne under this Agreement, regardless of the leng -~ of
the interrupt:.on or curtailment. Copies of the Annual Reports 01 :
Form 10-K f i led will be provided by Cyprus to Denver and Englewood
upon re~~est . Cyprus shall notify Eng :ewood and Denver when no
Mineable Ore Reserves are attributed to the Henderson Kine in an
Annual Repor t on Form 10-K. (If a Form 10-K is no l onger required
to be filed, then a comparable form or filing shall be
substituted.)
2.2 Elec t i on. Notw i thstand i ng Section 2.1, at any time while
the Hende r s oc ~ine is in operat i on , and a t Cypr us' sole discretion,
Cyprus may e l ect in writing to perma nently waive its right to
receive water as prov i ded under thi s Agreement, and thereby
terminate i ts rights and ob l igat i ons under this Agreement. Cyprus
may a l so i n i t s so l e di scretion e l ect :o terminate its r i gh t s and
obligations u.,der t his Agreement pursuant to Section 5.5. Upon any
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• .term:.nation of its rights and obligations hereunder, Cyprus will
receive payment from Denver as provided for in Section 5.8. Cyprus
shall provide prompt writte., notification of any such election to
Eng.ewood and Denver.
Article III
Der.ver-Englewood Provisions
3.1 Cabin-He;idow Creek Water. Denver shall· have the right
to use, reuse, successively use and dispose of al! waters produced
by the CMC Water Rights and O!C System for any municipal use by
Denver's customers in the Denver metropolitan area consist t with
the Decree entered in Case No. W-750-78.
3. 2 Basic Deliverie!I t;o Enalewood. (This Section replaces
the "D enver Exchange" deliv",nes to Englewood under the 1964 Water
Exc hange Agreement and the 1969 Modification.)
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3.2.1 While the Henderson Mine is in eration.
Whi l e the l'l?nders on ine is in operation, enver s a , y
Apr il 2, o t each year, designate for delivery to Englewood an
amo ·..L".I ,,f ·,·Jter not exceeding 2,700 acre feet; provided that
the wno .·: c,f water designated by April 20 of the current
Water Year : (al when added to the amount designated during the
preceding nine Water Years, shall not be less than 23,200 acre
feet; and (bl when added to the amount designated during the
preceding Water Year, shal l not be less than 2,600 acre feet.
It shall be assumed that Denver designated 2,500 acre feet
during each of the nine Water Years preceding the Water Year
in which Denver first designates water under this Agreement.
Examples are depicted in Exhibit c.
3. 2. 2 After the Henderson Mine C ases
After the Henderson Mine ceases operation, nver s a , y
Apr il 20 of each year, designate for delivery to Englewood an
amount of water between 1,500 acrc·feet and 3,200 acre feet
inclusive; provided that the am.cunt of water designated by
April 20 of the current Water Year : (a) when added to the
amount designated during the preceding nine Water Years, shall
not be less than 26,600 acre feet; and (bl when added to the
amount designated during the preceding Water Year, shall not
be less than 4,100 acre feet. It sh~l l be assumed that Denver
designated 2,930 acre feet during each of the nine Water Years
preceding t he Water Year in which Denver first designates
water after ~enderson ceases operations . Examples are depicted
in Exhibi t C. .
3. 2. 3 Rights of Reuse. J enver retains all rights to
reuse, success i ve use and disposition of the return f lows from
an y wate r de livered to · Englewood and its lessees or users
under Sect i on 3 .2 . Eng l ewood shall cooperate by giving notice
and account ing i nformation necessary to allow Denver's
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identification and quantification of these return flows.
Except as provided herein, £n,;lewood shall not oppose in any
judicial or administrative tribunals Denver's efforts to
identify and quantify these return flows under Section 37-82-
106, 15 C.R .S .; provided that the quantification of reusable
return flows from the Englewood Service Area shall be
cons i stent with similar provisions in the decree in Case Nos.
92CW030 (paragraph 15) and any similar provi~i ,:,ns of any
lessee's or user's decrees. Denve; shall no t ae~~ to modify
any provisions of existing ~~~r ees tor purposes n! o~taining
credi t for return flows f r M the Englewood Service Area , For
the purpose of prevent~n~ injury to iLz water rights,
Englewood may participate in any judicial or administrative
proceeding in which Denver see ks to quantify or establish the
right to reuse or rtidiven such return flows; provided,
howe ver, t!"lat Englewocd sh •-ll not restrict ~r il.pede Denver's
qua ntification of the reusabl . rer.•11:n flows : ri the manner set
fort h i n this parnc;raph.
3.2 .4 ~.<?. .. :: . ...rry-over. Englewood shall forfeit any
Basic Deliveri es ',<!s ignated a nd made available by Denver if
Eng l ewood does nc.~ take deliver,' of the water by the April 30
fol l owing the Water Year for which the water was designated.
Any forfeited water shall be retained by Denver for its sole
and exclusive use. For example, if Denver designates water on
April 20, 1996 for scheduled deliveries during the 1996 Water
Year, then any water not taken by Englewood on or before April
30, 1997 is forfeited.
3. 3 Paid Deliveries. (This Section replaces the Williams
For k and south Platte Ex change deliveries to Englewood under ·the
1964 Water Exc hange Agreement and the 1969 Modification.)
3. 3. l Amount. In addi t:.;m to the deliveri es described
in Secti on 3 :T,75enver sha ll between April l and April 20 of
each year iesignate an amount of water not exceeding 700 acre
fee t ("Paid Deliveries"); provided that the amount of Paid
Del iveri e s designat~d, when added t o the amount designated in
the previ ous nine Water Years, shall not be less than :J, 200
acre fe e t . The ' Paid Deliveries shall be made availabll' for
deliver y to Englewood between t he Mayland June 30 following
des ignation.
3.3.2 ~-For each acre foot of water delivered
under thi s SecIToilT.3, Eng l ewood shall pay Denver $64.26
whic h shal l be Adjusted for I nf l ation on January l, 2000 and
every f ifth anniversary thereafter.
3. 3 . 3 Ri~hts of Re us e . To the extent that Denver
del i vers water un er !h is Se c tion 3 .3 from Reusable Sources to
Eng ewoo d, Englewood retai ns the right of reuse, successive
use and d i sposition of the return flows consistent with
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•• Den ve ='s decrees. When water from Reusable Sources is
phys ~ca l ly available at the time of delivery, Denver shall
deli ·,er suc h water . If these Reusable Sources are not
ava i~a:C le, Denv er shall deliver from storage other municipally
d!!cre~d sources available to Denver. The determination of
whi c~ storage sources are available is within the sole
disc=et i on of Denver. Nothing i n this Agreement shall be
cons t =~ed as creating any obligation on Denver to have
Reu s ab l e Sources in its system or requiring Denver to operate
the Ro berts Tunnel in any manner. ·
3.3.4 No ca~rv-over. Englewood must take Paid
Del iveri es befo r e July l of the year of designation.
Eng l ewood s hall forfe i t any Pa id Deliveries designated and
made availabl e by Denver but not delivered before July l. Any
for feit ed Pa i d eliveri es shall be retained by Denver for its
sole an d exc lus i ve use. Eng l ewood is not required to pay for
unde livered Paid Deliveri es: ho1tever , all Paid Deliveries
des iq~ated by Denver count agun st t he a.mo unts set forth i n
3.3 .l.
3.3.5 Denver Ot>erat J.on o f CMC Exchanges. Denver may
•• ope r a:e in-pri ority exchanges under the decrees in C.A. 3635,
Case No. W-8 783-77 or Case No. W-8456-76 ("Exchange Decrees")
using water introduced into the South Platte River Basin from
Englewood 's CMC ~a t er Rights or Denver•~ water rights decreed
from the same s ~~r c es to the Moffat Tunnel Collection System
in C.A . 1430 ("O{C Exchanges"). CMC Ex changes may be
perf crmed by Denver only between Mayland August 31, and may
be performed only whe n calls are being administered for senior
water rights of ot~ers on the South Platte River below the
point (s ) at which Qi~ Exchange water is delivered into the
Sout !'. Pl atte Ri ver mainstem to sati sfy the calling water right
or t o otherwise satis f y senior downstream water rights.
Den ve=' s di vers i.or,s and storage from the South Platte River
under CMC Ex chan ~e ~ s h~l l be limited to the lesser of (al 95
cfs or (bl the a.mount of water called for by downstream senior
right s on t he South Platte mainstem during operation of the
CMC Exchanges . Under the Exchange Decrees, any CMC Exchanges
to Chat fi el d Rese r voir !!hall be operated under an
admi ~i strative date of 1976 or 1977 and to Strontia Springs
Reservoi r unde r a priori ty of 196 2.
Eng l ewood, and any entity who i s entitled to receive the Paid
De liveri es purs uant to a writt en contract with Englewood
spec :.~ically for use of the Pa i d Deliveri es ("Contract Users
of Pa i d Del iver i es "), shall not object in any forum or maMer
to operat i on of CMC Exchanges by Denver in accordance with
this Agreeme nt . For purposes of this paragraph 3. 3. 5,
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ent e~ni a l Wate r and Sani tation Di s tric t ("CenteMi al") under
he 197 7 Lease Agreement or 1980 Water Supply Agreement, shall
not be cons idered a Contract User of Paid Deliveries unless it
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is entitled under an amendment or new agreement to receive all
Paid Deliveries. Before ar.y entity including Centennial is
made a Contract User of Paid Deliveries that entity muat agree
to abide by this paragraph 3.3.5.
3. 4 Schedule of deliveries. Denver shall make Basic and Paid
Deliveries under the procedures set forth in Exhibit A. Denver
shall only make ava i lable P ,!d Deliveries during ~he period May l
through June 30 unde r ~he p ocedures set forth in Exhibi t: A.
Englewood is solely res p :ns 'hle for coo1~inating any Basic and Paid
Deliveries to its le~11ees o users. Englewood .shall not request
Bas '.c or Paid De J i'.'H 1~~ :. t ht'i water is not needed for IIIWlicipa l.
purpos es by it o ~ its ~~,Dees or us ers.
3. 5 Point of De ~ .l,, r v . Wate= designated by D,mver under this
Article III shall be measured a nd delivered into the South Platte
Ri ver into or below e i t her Strontia Springs Reservoir or Chatfield
Reservoir, at Englewood's request. Stream or ditch carriage
l osses, i f any, between the point of delivery and any other
downstream points of diversion are to be absorbed ty Englewood.
3.6 Type of Water . Water delivered to Englewood under this
Article III s na i l be decreed for m\lllicipal use and shall ' be
lawful l y available for storage. Denver may deliver to Englewood
water decreed either for di rect flow or f or use by exchange only
••
with Englewood's consent. Except as described in this Section 3. 6, •
however, Englewood takes the type of water •as is" with respect to
Denver's decrees. Noth ing in this Agreement shall be construed to
require Denver to change its decrees.
3. 7 Use of Delivered Water. Water delivered to Englewood
sha ll be used only tor municipal purposes within the Denver
metropol ' t an are a and shall be used consistently with Denver's
decrees .
Article IV
CyPr us-Denver Provisions
4 .1 Cabin-Meadow Creek water . Denver shall have the right to
use, reuse, successively use and dispose o f all waters produced by
the CMC Water Rights and CMC System for any municipal use by
Denver's c u stomers in the Denver metropolitan area consistent with
the Decree entered in Case No. W-750-78.
4 .2 Amount of Water Provided to the Hend~rson Mill. While
the Hender son Mine is in operation, Denver's Williams Fork System
shall be exercised so as to provide up to 3,000 acre feet of water
from the Wil : .~s Fork River and its tributaries for diversion and
use at t he He : ·•rson Mill (the "Cyprus Cr edi t"); provided that no
mo re frequent :· than once during any ten consecutive Water Years, •
Denver may, by April 20 of the Water Ye ar, notify Cyprus that only
9
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2,650 ar.re fe et of water wi ll be provided for diversion and use at
the Hender ~:i 1 Mill and that such amount will constitute the Cyprus
Cre di t fo r hat Water Year. Denver shall, in addition, make
ava ilable t o Cyprus up to 2,200 acre feet of water each Water Year
from the Wii\ Replacement Account for the Henderson Mill, which
acc cun t shal ! !erve as a source of replacement water for calls
aga i nst the Hl nderson Mill by senior downstream Colorado River
water rights; p~·ovided, however, that the total .combined amount
provi ded by Denver under the Cyprus Cr~dit and the WFR Replacement
Acc cunt sha ll not exceed 3,000 acre feet per year, or 2,650 acre
fee t dur i ~g t hose one-in-ten years designated by Denver as
des cr i bed 1wo ve . All water provided to Cyprus under this Section
4.2 shal l b e used only at the Henderson Mill for the beneficial
uses desc ribed i n the Ute Park Storage Right decree. The amount of
wa t e r actua lly provided by Denver in any given year under the
Cyp r us Cr e d it and the WFR Replaceme n t Account shall be calculated
as descr ibed i n Section 4. 3 below . Notwithstanding anything
he r e :n to t he contrar y, the part i es agree that Cyprus shall not be
re qu i red to estimate or des i gna t e i n advance the amount of water
t ha: Den ver wi .11 actually be requ i red to provide during the
upc o~ing Wate r Year for diversion and use at the Henderson Kill.
4.3 Mea ns of Prov iding Water to the He nderson Mil l. Denver
sha :l provi de water to the Renae r son Mill by the following means :
4. 3. l Natural Flow. Pursuant to the Ute Park Storage
Right, Cyp r us may divert the natural flow of the Williams Fork
River or i ts tributaries. Out-of-priority . ,versions of
natural flow by Cyprus under the Ute Park Storage Right
agains t Denver's unsat i sfi ed Williams Fork Reservoir water
rights (as determined in paragraph 4.3.4) shall be debited
against the Cyp r us Credi t , but not against the WFR Replacement
J>.ccoun t .
4. 3. 2 Williams Fork Reservoir Reolacemen t Account.
~en ver sha ll maintai n for Cyprus 2,200 acre feet per Water
Year in Wi lli ams Fork Reservoir for replacement of out-of-
prior i.ty d i versions by Cyprus at the Henderson Mill against
senior Colorado River water rights downstream of the Williams
For k Reservoir ("the WFR Replacement Account"). Any release
of wate r from the WFR Replacement Account shall be debited
aga i ns t both the WFR Replacement Account and the Cyprus
Cre dit.
4.3.3 Wil liams Fork Divers i on Project ByPasses.
•
Denve r s ha ll phys i cally bypass water from its Williams Fork
Di vers i on Project only as necessar y to enab l e the d i version
and use o f water by Cyprus at the Henderson Mill. Denver's
phys i cal bypasses shall be required only to the extent that :
(a) Cypr us actually needs water for beneficial uses at the
Hen de r so n Mi l l desc ribed· in the Ute Park Storage Righ t decree;
and (b ) Cyp rus ' ~ed for water cannot be phys i cally or
10
legally satisfied by the natural flow of the Williams Fork • ·
River at Cyprus' point of diversion. Any such physical
bypasses made by Denver sha ll be accounted for as follows:
(a) to the extent physical bypass~~ are required to enable
Cy.,~u s to divert out-of-priority und er the Ute Park Storage
Ri gt.t against Denver 's Wi lliama Fork Reservoir water riglits,
bypa s ses shall be deb :.ted on ly ay ins t the Cyprus Credit; (i.)
to th e extent physical bypasses are required in order tom~.~
delive ri es to the Henders on Mill from the WFR Re placeme , r
Acco un t, bypasses shall be debited against both the WF!t
Replacement Account and t he Cyprus Credit. Noth ing here i n
sha ll be interpreted as allowing the use by either Denver or
Cyp rus of bypass flows to ma i ntain any i nstream ·t l ows. An y
phys i cal bypasses required by Cyprus shall be measured by t h~
Jones Pa ss flume, or by any future ~easuring devi ce installea
to measure bypasse s at Denver's Wi lliams Fork Dive .~ion
Pro j ect.
4.3.4 Definition of Williams Fork Reservoir Fill. For
purpo s e s o f ~ete rmining wnen W tliams Fork Reservoir i:.
un sati sfied under this Agreemen t , Wil liams Fork Res e,;voir
s ha l l be d e emed to be unsatisfied during any Water Yea ~ until
t he s um of the following i s equal to or greater than t he
phys ical capacity of Williams For k eservoir: (i) the total
storage contents in Williams For k R~~ervoir on Aprill of the
Water Year, plus (i i) the volume of natural inflow thereafter •
through March 31 of the same Water Year into Williams Fork
Reservoir when it is in-priority against any mainstem senior
cal l , minu s (iii) the amo unt of natural inflow into Williams
Fork Reservoir bypassed to satisfy seni or rights on the
Will iams Fork River below Wi lliams Fork Reservoir, and minus
(iv) the amount of na tura l inflow into Williams Fork Reservoi r
bypas s ed to sat i sfy instream flow requirements below Williams
For k Reservoir.
Nothing herein shal : be construed t , ~ubordinate Cyp r us' Ute
Par k Storage Ri ght _gains t Denver 's Williams Fork Res e rvoir
1956 priority. Once Wil lia,m s Fork Rtservoir is satisfied,
then the account ing of any previous out-of-priority diversicns
by Cyp rus on its Ute Park Storage Rig ht during that Water Year
whic h were credited to del iver i es under Secti on 4.2 sha ll be
c hanged to show s uch diversions as ha ving been made ~nder the
Ute Par ,. St orage Rig h.t.
4. 3. 5 Accounting. De nv er and Cyprus shall develop
annual accounting ana procedures to impl ement Section 4 .3.
4 .4 Lea a l or *hys i cal imco ss i bilitv. f the means of
provi ding water t o t e Henderson Mi li desc ribed in Section 4 . 3
becom es l ega lly or phys ically invalid, impossible, or
un enforceabl e, Denv er and Cyp rus s hal l promp tly develo p as similar •
as po ss ibl e a revised me thod of cred it and provi sion . This
11
• Asection, however, shall not be construed as precluding or impairing Wi.,1 any way Cyprus' right to specifi c performance of Denver's water
del i very, replacement, and bypass obligations under Section 4.3.
4 .5 No carry-over. Any portion of the Cyprus Credit or the
WFR Re p lacement Account not used by Cyprus during the Water Year
shall be forfe ited . The forfe i ted water shall be retained by
Denver for its s ole and exclusive use . Nothing herein s~all affect
Cyprus' right to store water and reuse water after the milling
process. I f, however, Cyprus stored water provided by Denver under
any of the mea ns described in Secti on 4 .3 it shall be debited as
desc ribed i n Section 4.3.
Art i cle V
Operations , Costs and Payments
5.1 Opera:i on of the CMC System. Denver will operate,
ma intai n, ana r epair the CMC System in the manner here i nafter
provided . If schedul ed ma intenance of the CMC System is necessary,
such ma intenance wi ll be performed at a time which will minimize
t h e occ urrence c f a "Delivery Failure" under Section 6.1.
5.2 Enc l ewo od's and Cvorus' Fi nanc i al Obligations.
•
5 .2 .l Operation and Maintenance Costs. In addition
to t he payments required un der Section 3.3, Englewood s ~ll
reimburse Denver for the operation, maintenance, and minor
repa i r and r eplacement costs i ncurred by Denver in operating
the CMC System. Costs shall include direct labor, overhead
(includi ng admin i stration, benefits, leaves and tools),
materials, equipment and vehicles for all activities required
to opera t e the CMC System. Minor repair and replacement costs
mea ns costs which are not Major Repairs described in paragraph
5 .2 .2 . Af ter the Henderson Mi ne ceases operation, the costs
describe d. i n this paragraph 5. 2 . l. shall be shared equally by
Englewood and Denver.
5.2.2 Major Repairs. "Ma.jar Repair,• for purposes
of t hi s Article V, shall mean any major repair, maintenance or
replaceme nt work on the CMC System likely to involve an
expe nditure of more than S20,000 .00, which amount shall be
Adjus t ed for Inflation on January 1, 2,000 and every fifth
year thereafter . If , in the reasonable determination of
Den ver 's operat i ng personn el, a Major Repair is necessary,
Eng l ewoo d shall ',e responsible for the costs of the Major
Repa ir i n th~ manner described in th i s paragraph. In making
its dete rmin ation, Denver s ha ll appl y, i nsofar as practical,
t he s am e s t andards i t use s in making decisions on major
repa i rs to its Fraser Ri y er Di version Project. If in Denver's
·• judgment an emergency ex ists, Denver may proceed with the
Ma jor Repa ir i mm ediat ely, and EnglE:wood shall reimburs e Denver
12
for the costs as described in paragraph 5. 2. l. If an • ·
emergency does not exist, Denver will consult with Englewood
and Cyprus prior to Nking its determination on the need for
a Majer Repair and provide to them Denver's estilll.ate of the
cost of the Major Repair. Denver's determination of the need
for a Major Repair shall be made or confi rmect by Denver's
Superintendent of Source of Supply (or tbe person who
supervises the operat!~n of the CMC System). ~nglewood shall
notify Denver in writing wi thin 30 days of Denver's notice of
determination whether Englewood elects to arrange to have the
work performed by a third party or requests Denver to perform
the work. If Denver performs the Major ,,epair, Englewood
shall reimburse Denver for associated cost!!. Cc.sts shall
include direct labor, overhead (including administration,
benefits, leaves and tools), materials, equipment and vehicles
for all activities required to perfcrm the Major Repair. H
a third party performs the Hajor Repair, the design and
performance of the work shall be approved by Denver. After
the Henderson Mine ceases operation the costs of any Major
Rc~air shall be shared equally by Denver and Englewood .
5.3 Pa;rents bv Englewood to Denver . Englewood shall pay to
Denver any o the cliarges or reimbursable costs required by this
Agreeme nt within 45 days after Denver submits a monthly statement
to Englewood. Englewood and Cyprus may inspect Denver's financial
accou:its containing the data on which any statement for such •
charges or reimbursable costs is based at any ti.me during normal
business hours.
5 . 4 Payments by Cyprus to Englewood. While the Henderson
Mine is in operation, Cyptus shall reimburse Englewood 551 of the
costs paid by Englewood to Denver under Section 5. 3; however,
Cyprus shall not be requ i red to reimburse Englewood for its
payments to Denver under Section 3.3 . Cyprus shall pay Englewood
within 45 days after Englewood subm i ts a monthly stataent.
5.5 Terminat ·on and Reduction of C
Enqlewood. Cyprus' obligat i on to rei urse ng ewoo or o
the costs incurred by Denver in operating, maintaining, repairing,
or replacing the CMC System shall terminate when the Henderson Mine
ceases operation, or if Cyprus elects in writing to permanently
waive its right to receive water uncl1?r ~his Agrr.ement.
Nevertheless, wi t h respect to any Major Repai.r, Cyp1.;!' m~:; in its
sole discretion elec t to reimburse Englewood for only that portion
of the benefit of the Major Repair tha will accrue to Cyprus
during the operation of the Henderson Mine. In order to make such
an election, Cyprus shall inform Englewood and Der.ver in writing of
t he number of years that the be::i efit of the Major Repair will
accrue to Cyprus , and sha ll des i gnate a date at the end of which
period the Henderson Kine's operations shall cease for purposes of
this Agreement . Cyprus' reimbursements to Englewood shall then be •
determined by dividing the cost of the Major Repair by the number
13
•
f years of the expected life of the Major Repair; mulliplyinq the
esultinq quotient by the number of years remaining fo r the life of
the Henderson Mine; and multiplying that product by 551. If C:fPrus
elects to make a reduced reimbursement to Englewood for a Major
Repair as provi ded in this Section, then the Henderson Mine shall
be deemed under t his Agreement to cease its operations on the date
des i gnated by Cypr us in its written notice. Cyprus' rights and
obli gat i ons under this Agreement shall terminate on the elate
des i gnated by Cyprus, and Denver's payment obligatiou to Cyprus
unde r Section 5.8 shall apply. ·
5 .6 Payments by Cyprus to Denver . Cyprus shall reimburse
Den ver for any operati on, mai ntenance, minor or major repair coats
spec i all y i.ncurred by Denver in the operation of its Williams Fork
Sys t em f or the limi ted purpose of providing water to Cyprus under
Art i c l e IV. Cypr us shall pay Denver wi thin 45 days after Denver
submi ts a statement .
5. i Failu re t o Pay by Enalewood or Cyprus. Should Englewood
fa il t o pay charges or rel.l!lOursable costs to Denver when due,
De nv er s hall cease deliveries to Englewood until such charges are
pa i d i n full. If Cyprus fails to pay Englewood under Section 5.4,
then Eng l ewood shall notify Denve ~ and Denver shall not provide
water under Section 4.2 to Cyprus until such charges are paid in
fu ll .
A 5.8 Denver's payments to Cyprus. After the Henderson Mine
'lllllll!eases operation, Denver shall pay to Cypru ~ the sum of $367,500.00
in t hen current United States money i n three equal installments,
the f i rst of which shall be due within 21 days of receipt of
wr i tten not i ce from Cyprus that the Henderson Mine has ceased
operation under Article I I with the second and third installments
to be pa i d on the f i rst and second anniversary dates of the first
pa ym ent.
Article VI
De livery Red uctions
6.0 Delivery reduction . Denver's obligation to designate and
ma ke deliveries to Englewood under Art i c l e III and provide water to
Cypr us under Sect i on 4. 2 may be reduced in a manner pro,1 ided belo1o1.
6 .1 Deli ver v Failure. In the event de l i very of water to
De nver from the CMC System 1s interrupted or reduced due to reasons
other t ha n the lack of phys i cal supply, or Reg ulatory Actions under
Section 6 . 2, such as structural failure of the CMC system or
shutdown s for mai ntenance (collect i vely "Delivery Failure"),
Den ver's obligat i on to delive,r any amounts designated will not be
mod ifi ed if Denve r 's water r equirements are satisfied . Denver's
.il.ter re qu irement s from t he CMC System will be considered satisfied
W'en (al water that i s lawfu lly and physically available for
14
or bypassed becau,e of the lack of demand in Denver's service area;
and (bl all water available for withdrawal from Meadow Creek
Reser voir dur ing the same year i s either withdrawn or physically
capable of being withdrawn by October 31st of that year. If
Denver"s water requirements are not satisfied, the parties will
work towards a mutually satisfactory arrangement to address
sho rtages to Denver resulting from the Delivery Failure. If such
an arrangement caMot be reached, then Denver's obligation to
del iver the amour.t o f water designated the previous April 20 under
Art icl e III will be reduced pursuant to Exhibit D.
6.2 Requlatorv Action. Denver's obligations to designate
and deliver the amounts of water described in Article III and
Sec~ion 4.2 are based on the fundamental premise that there will
not be a Regu l atory Act ion whic h materially reduces the amount of
water whic~ is lawfully divertable by the O!C System.
6. 2. l Lawfully Divertible Amount Defined. The lawfull.y
divertibl e amount means the .ll!IOunt whicn is capable of being
diverted over a representative peri od if the CMC System were
operated at maximum capacity duri ng that period, subject,
however, to the terms of those statutes, water court decrees
and stipul ations, right-of-way limitations and conditions,
agreement s, and adm ini stration wh.l.ch have been in effect
through the date of this Agreement as reflected in Exhibit E .
. 6.2 .2 Procedure i ~ the Event of a Regulator!; Action. If
Denver believes. in its ~ole opinion, that a Regu atoryAction
has occurred, Denver shall notify the other parties in
writing, descr ibing the Regulatory Action. (If the Henderson
Mine is in operat ion, Denver, Cyprus and Englewood shall be
considered "parties". If the Henderson Mine i s not in
operation, or if Cyprus t as waived its right to receive water
under thi s Agreement, only Englewood and Denver shall be
considered "parties") For a period of ninety days a ft er the
de livery of such notice the parti es shall make a good faith
a ttemp t to agree upon the terms of any reduction of deliveri es
by Denver, recognizing t hat Cyp r us is entitled to the first
yi eld attributable to the CMC System under the Denver Exchange
as referred to in Exhibit E, up to 3,000 acre feet each year,
free a nd cl~ar of any obligat ion to estimate and des ignate its
annual requirement~ (subject, however, to Denver's "once-in-
ten years" right to reduce the delivery ~o 2650 acre feet).
If written agreement on Denver's reduction of deliveries has
not been reached within 90 days, any party may demand that the
amount of the deliveries be establ ished by binding
arb itration . Wr itten notice of s uch delllilnd shall be delivered
to the other parties an d shall nominate an independent and
exoer i e nced water resources engineer co serve as an
arbi trato ~. (An indepc r. i ent eng ineer i s one who has not
performed ~~rvices for the nominator, as an emp l oyee or
15
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•
•
performed services for the nominator, 11 an employee or
consultant, for at least five years.) Each recipient of the
notice shall, within 30 days after receipt of the notice,
nominate in a writing delivered to the other parties, an
independent and exper~enced water reso~rces engineer to serve
as an arbitrator. The engineers so nominated shall, within 30
days of delivery of the last notice of nomination, nominate
one (if Cyprus i s not a party) or two(if Cyprus is a party)
add itional independent and experienced w~ter resources
engineer(s ) to serve as an arbitrator on a Soard of either
three or five members . A party who !ails to nominate · its
arb itrator shall have waived its right to nominate the
arb itrator. If the initially nominated arbitrators cannot
unanimously agree among thc:mselves as to the additional
arbi t rator (s), then that arbitrator(s) shall be selected by
arbitration pursuant to the rules and procedures of the
Judici al Arbiter Group, Denver, Colorado, or a similar body,
such :,; the American Arbitrat i on Association, if the Judicial
Arb i t .!: Group i s no longer i existence . The arbitrators
sha : 1·each the i r dec i sion by ma j ority vote. The decision of
the a~b itrators shall be final and binding upon he parties
and shall not be subject to appeal.
Eac h party sha l l bear i ts own costs for the arbitrator
selected to represent that party. The parties further agree
to shar e equall y in the cost of the additional independent
arbitrator (s). An i ndependent arbitrator shall chair the
arbi tration board and issue a report summarizing the findings
dnd co nclusions of the arbitrator board.
6 .2.3 Determinations to be Made by the Arbitrators. The
arb itrators shall, within 90 days following the appointment of
the last arbitrator, establish the reduction, if any, of the
amount of wate r which is lawfully divertible by the O(C System
due to the Regulatory Action, by utilizing, if practical and
feas i ble, the assumptions and procedures set forth in Exhibit
E. After determining the reduction, the arbitration board
shall establish Denver's adjusted designation and delivery
obligations, (if any adjustment is determined to be made) of
Bas i c and Paid Delive~ies, and water provided to Cyprus under
Ar ticle IV. In establishing Denver's adjusted desiqnation and
delivery obligations , the arbitration board shal'l utilize, to
the extent practical , the assumptions and procedures set forth
in Exhib i t E. The adjusted des i gnation and delivery amounts
established by the arbitration board shall never exceed the
designat i on and delivery amounts already established by this
Agreeme nt . The arbitration board shall also recognize that
Cypr us i s entitl ed to the first yield attributable to the CMC
Sys t em under t he Denver Exchange referred to in Exhibit E, up
to 3,000 acre feet each year, free and clear of any obligation
to est ima te and des i gnate its annual requirements (sub j ect,
however, to Denver's "once-in-ten years" right to reduce the
16
dr.livery to 2650 acre feet.) The arbitration board sh&ll make •
ad justments in Denver's designation and delivery obligations
to compensate for any over deliveries during the pendency of
the arbitration process.
6.2.4 Adiustment Water While Henderson Kine is in
Operation. Shou.1.d the parties or the arbitration board
detennine to reduce Denver':; deliveries to En;lewood under
Sect i on 3.2 to an amount which is less than 21,000 acre feet
during any ten year period, including the cumulative effects
of all prior reductions for Regulatory Actions, then Denver
shall make a'ddi tional deliveries to Englewood (Adjustment
Wate=I, as provided below .
6. 2. 4. l April Meetinq. Betw •~en April 1 and April
20 of every year, the parties will rneet to determine the
amount of water diverted during th~ preceding twelve
months by Cyprus a t the Henderson Kill that is
attributab l e to water provided by Denv·er under Section
4.2 ("the April Meeting"). Denver and Cyprus must keep
accounting records sufficiently adequate to determine the
amount of water provided by Denver and used by Cyprus
under Section 4. 2. Englewood shall have reasonable
access to such records.
6. 2. 4 . 2 Use of Cyprus Water Rights. for the limited •
purposes of this paragraph 6.2.4, Cyprus m..,y take water
provided by l)enver under Section 4. 2 only after first
diverting any available water under its Incidental Water
Rights and its Ute Park Storage Right, if in priority,
recogniz ing t hat Cyprus is nonetheless entitled to the
first yield attrib1 :able to the CMC System under the
"Denver Exchange" as referred to in Exhibit E, up to
3,000 acre feet each year, free and clear of any
obligation to estimate and designate .its annual
requirements. Such water shall be provided under the
means desc=ibed in Section 4.3.
6 .2 .4 .3 Adjustment Water. The difference between
3,000 acre-f eet and the amount of water diverted at the
Henderson Mill pursuant to Denver's deliveries to Cyprus
un der Sect:on 4 .2 during the preceding Water Year will be
determined at the Apr il Meeting. If such a difference is
200 acre-feet or less, no further adjustments will be
made. If s uch a difference is more than 200 acre-feet,
Denver will designate an additional amount of water
("Adjustmer.t Water") for delivery to Englewood as
follows ,:
A. The Adju stment Water will be one-half of the
diffe=ence between 3,000 acre-feet and the amount
diverted by Cyprus at the Henderson Mill under
17 •
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B.
c.
Section 4.2.
The Adjustment Water will be delivered over the
next five Water Years in such annual amounts as
Denver may designate. For purposes of delivery
under this subparagraph a "year" means Kay l
through Apri l 30. The first "year" will be that
period which commences on Kay l following the
peri od of April l -March 31 for which the
Atijustment Water was 'determined . Denver will
designate by Apri l 20 of each year the portion of
the Adjustment Wate r to be delivered during the
f ollowing year. Such amounts are in addition to
Denver's reduced delivery obligations to Englewood
pursuant to Section 3.2.
The amount of Adjustment Water designated for each
ye ar will be delivered i n accordance with the
delivery procedur es set out in Exhibit A. Denver's
designation and delivery to Englewood of the
Adjustment Water shall be limited to a maximum
annual amou nt of 2,500 acre-feet, unless Englewood
in its sole discretion, agrees to take delivery of
an amount exceeding 2,500 acre-feet. Any amount of
Adjustment Water which cannot be designated and
delivered due to the annual limit of 2,500 acre-
feet shall be carried over to the following year or
years .
D. An y amount of Adjustment Water designated by Denver
but for which delivery is not taken by April 30 of
the follow ing year is forfeited by Englewood.
6.2 .5 Reversal of Regulatory Action. In the event the
Regulator y Action is reversea o r set aside, or is mitigated by
the abandonm ent by Public Service Co. of Colorado or its
succ1?ssor of the 1902 Shoshone call (unless purchased by
Denv,r, in which case Section 7.4 applies), the parties shall
be t esto red to their original positions relative to their
obli9 at ions and benefits before the Regulatory Action took
p lace.
Artic l e VII
Water Rights
7.1 cabin -Meadow Creek Water Rights. Den ver shall, under
!ts sole discretion , operate the CMC System and derive all the
yi e ld f r om the CMC Water Rights, consistent with the provisions of
th is Agreeme nr:.
A 7.2 Den v er's Water Rights . Denver may divert under its Cabin
WMeadow Creek wa t e r rights decreed in C.A. 1430, (descr i bed .in that
18
decree as the Moffat Tunne l Collection System) and divert by
exchan ge, provided that Denver shall divert for beneficial use
during any ten consecutive years a minimum of 26,600 acre feet of
water un der ~he CMC Wate r Ri ghts subject to legal, regulatory or
phy s i cal ava ilability .
7.3 Decree in Case W-7 50-78. Englewood, Cyprus, and Denver
agree that the terms ot tnis Agreement are consistent with the
final dec ree entered by the Water Cou rt for Water Division No. 5 in
Case No . w-750-7 8.
7. 4 Enhanced Yi e ld. If any increase in yield of the CMC
· System , attribut able to water rights decreed in w-750-78 or C.A.
1430, is derived thro ugh t he acquisition of senior conflicting
rights on t he tributaries intercepted by the CMC System, Englewood
may part i c:.pate , up to 251, in the cost of such acquisition and
receive a proportionate s hare of the i ncreased yield. Denver is
en titl ed to a ll increased yi e ld derived by the acquisition of
senior conf·icting water r ;hts in wh i ch En glewood does not
pa rticipate , a nd all increased yield cleriveei by othe r means
including: winteri zing, exch ange , replacement or diversions under
Denver's water rights decreed in C.A. 1430.
7.5 Case No . W-8456-76. Notwithstanding paragraph 3.3.5,
whenever Den ver desires, but no less frequently than once every 10
••
years, Den ver shall release CMC water from Gross or Ralston •
Reservoir for En g l ewood to exerci se the xchange decreed in Case W-
8456-76, up to 95 cfs. To the extent Denver operates this exchange
for Englewood the amount of Paid Deliveri es designated by Denver
s ha ll be corres pondingl y reduced. For any CMC water released from
Gross or Ra l s ton Reservo i r for operation of this exchange for
Eng l ewood, Eng l ewood shall !:lake payments pursuant to paragraph
3.3.2. Any reduction of yield from W-8456-76 which may result from
restr ictions on ~p eration of thi s exchange shall not constitute a
Regulator y Acu:m , and shall not be a basis for reduction of
deliveri es to Englewood, a breach of this A~reement by Denver or
c l aim of inj ury by Eng l ewood. Nothing in this Section shall
override or alter the provisions of Section 3.4 or Exhib it A.
7.6 Cypr us water right s .
7 .6.l. Incidental and Ute Park Storage Rights. While
t he Hend ers on Mi ne is in op eration , Cyprus shall use its
Inc idental Wat e r Rig ht s and the Ute Park Storage Right
exc lusive l y a t the Henderson Mill. Any subsequent use, change
of use, or t ransfer of the conditional portion of the Ute Park
Storage Right (3,900 acre feet) for uses other than those
associated with the Hen de r s on Mi ll can only be made with
Den ve r 's permission, which may be granted in Denve r 's sole
disc r e t ion. Th is r est ri ct ion shal l ·expi r e when the Henderson
Mine ceas es operation. Whe n the Henderson ~line ceases •
oper ation Cypru s sha ll have no interest in the water rights
19
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•
•
decreed in Case No. W-750-78, Koreov ·er, regardless of whether
or not the He nderson Kine has ceased operation, Cyprus shall
not claim historic use credit for the Ute Park Storage Right
that is attributable to water provided under Section 4.2 or
the 1969 Modification.
7.6.2 Right of Fi rst Refusal. Cyprus grants to Denver
a first r i ght of refusal to pur.chase all or a portion of
Cypr us' Incidental Water Rights and Skylark Water Rights under
the same terms and conditions set forth in any bona fide offer
made or received by Cyprus concerning sale of these water
rights. After Cyprus notifies Denver i n writing of a purchase
offer or i ts intent to sell, Denver shall have sixty (60)
calendar days in which to exercise its option to purchase
these water rights. Upon exp i ration of the sixt (60) day
calencar period, Cyprus may sell in accordanc with the
origina l bona fide offer that portion eof its water rights
whic :i was no t purchased by Denver, if any. Cyprus must
compl ete the sale within one hundred twenty (120) days after
the exp i rat i on of the 60 day first refusal period. If the
sale i s not completed within that period, Cyprus shall once
aga in comp ly with the provisions of this paragraph before
selling the In,::idental Water Rights and/or Skylark Water
Rig hts.
7. 6. 3 Conve~ance to Denver. After the Henderson Mine
ceases operauonsyprus shall convey to Denver by bargain and
sale deed its title to all rights and interests, tar.gible and
intangi ble, real and personal, possessory and usufructuary
wh i c:i Cypr u s may have to the CMC System and the water produced
there from. In exchange for this conveyance, Denver shall make
the payments described in Section 5.8.
7.7 Particioation in Water Rights Cases.
7.7 .l Cvprus Water Ri ghts Cases. Within 20 days of the
dismi ssal of 93CV55B5, Englewood shall file a motion to
wi thdraw its statement of opposition to Cyprus' ch,:.nge of
water rights app lications in Case Nos. 92CW233 and 92CW336
(Water Div i sion No. 5).
Eng l ewood shall not file a statement of opposition to, nor
mo ve to intervene in, any future change of water right
app lications involving Cyprus' Skylark Ranch water rights,
wh ic:i are described in Ex hibit F. Englewood shall not file
~ statement of opposition to, nor move to intervene in, ~ny
fu ture app lication by Cyprus to make the Henderson Mill
tail ing pond and Horsesho e Reservoir additional places of
stor a ge for the He nd erson Mine System Water Right decreed in
Case No. w-528; provided, however, that 1) the application and
dec r ee shal l be consistent wi th paragraph 7 .6.1; 11) Cyprus
wi ll timely provide Englewood with copies of al l pleadings
20
filed in this case and any proposed decrees; and iii) the
application shall not seek to adjudicate exchanges up the
Co l orado Ri ver and its tributari es to the CMC System, or up
the South Pl atte River f r om its confluence with Clear Creek to
po ints above the confluence. Englewood may intervene in the
case, and Cyprus will not oppose such intervention, if any
party asserts that diver sions of water pursuant to the W-528
decree constitute histori c use under the W-750-78 decree or if
the proposed decrees or appl i cations are ineon!istent with
this paragraph. In the event that Englewood do~s intervene,
Englewood's involvement i n the case shall be limited solely to
t he i ssue of whether diversions of water pursuant to the W-528
decree constitute histori c use under the W-750-78 decree or t o
ass ure conformi ty with this paragraph .
7 . 7. 2 Diligence ADo lica t ions . Englewood shall no t
oppose any dili gence app l i cations for Denver's e xisting
c:i ndi tiona l water rights. Denver shall not oppose any
d ilige nce app lications f or Eng l ewood's existing condi tional
wa t e r rights . Not hi ng here in s ha ll preclude either party from
con t est ing a claim or app lication to make any porti on
abso l ute .
Art i c l e VIII
Miscel!arieoiis'"'Provis i ons
••
8.1 Previous Agreements. This Agreement supersedes the 1964 •
WatE r Exc ha nge Agreeme nt, the 1969 Modification, the September 25 ,
19 69 Ag r eemen t and September 26 , 1969 amen dm ent between Englewood
and Cypru s i n their entirety .
8.2 No o roo ert y rights or servitude . Nothing i n this
Ag r eement shall be construed as granting or creating any property
r ight or servi t ude whatsoever on any of Denver's water rights or
anv o f Denver's fac ilit i es, no matter where located in Denver's
wa te r work s s ys tem , e xcept for the encumbrances on the CMC System as
estab l i s hed b y deed . The forego i ng sentence shall not impair the
rig~ts o f any party to spec ific perf ormance of this Agreement .
8. 3 No Ooe ra t i ng Obliqat i on. Noth i ng i n this Agreemen t sha ll
be deemed or construed as creati ng any obligati on on Denve r to
ope rat e it s raw or treat ed waterw or ks system in any particular
manner so l on y as De nv er comp li es wi t h the terms of this Agreement .
Denve r r eta i ns sole and exc l us i ve discretion concerning the
ope r a tion of the CMC System and any other sources of water made
avail abl e f or del i very to Eng l ewood under this Agreement.
8 . 4 owners hio of CMC System. Eng l ewood shall convey to
Cypr us an d Den ve r by bargain and sale deeds und i vi ded interests to
t he CM C Sy s t e m as described in fo rm and s ub s t ance i n the attached
Ex hi b i t G . Cypr us or Denve r sha ll not record t he deeds or t his
Agreeme nt un l ess there is a d i s pu te wh i ch e i ther Cyprus or Denver •
21
•
in good faith believes necessitates recording; however, delivery
and acceptance of title are not conditioned on the recording of the
deeds. Delivery or i-ecording of the deeds shall not terminate,
merge, curtail or in any way restrict the ~ffect of or terms of
this Agreement.
Englewood is not obligated to have or convey merchantable
t i tle to the property described in the deeds, and the property will
be conv~yed without warranty of title or physical condition or of
merchantability or of fitness for any particular purpose. Denver
and Cyprus will t ake the property •as is.•
However, to assis t the parties in ascertaining the ownership
of the land encompassed by and adjacent to the reservoir and
traversed by and adjacent to the conduit and diversion structures,
Eng lewood will obtain from a title insurance compz..1y either 11n
owner's title insurance policy or commitment, or an ownership and
encumbrance report, which ll gives the apparent own ership of such
surrounding (and underlying) property, and 2) ident fies any
property i n addit i on to, and contiguous to, that encompas sed within
the Bell Survey, which was acqu i red by any of the parties and
rema i ns owned of record by any of the parties ("Additional
Proper ty") . If Addit i onal Property is discovered by the title
insurance company, it will be made the subject of prompt
conveyances amon g the parties, by bargain and s ale deeds, so that
owne rship of the Add i tional Property is held in the same
a;;roportions as u.e established by the deeds above described. The
9'c;onveyances shall be in the same form and substance as used for the
. deeds above descr i bed, except for the variance in the leqal
description . (The interest o f Cyprus in any such Additional
Property sha ll be conveyed to Denver along with the b&lance of the
property, pursuant to Sect i on 5.8'. without additional payment.)
The fees of the title insurance company for the policy,
co~m itment, or ownership and encumbrance report shall be shared
equa lly by the parties. Englewood shall reasonably determine,
after consultation with the other parties, the form of document to
be obtained from the title insurance company, depending on
practicality and cost .
The initial deeds shall be delivered no later than 30 days
after the l atest of approval of this Agreement by the Court and its
approv a l by any necessary action of the ;overning bodies of the
var iou s parties.
8.5 Unity of Action. If any party reasonably believes that
an action, event or occurrence co uld cause a reduction of yield of
the CMC System under Sec tion 6 .2 or affect th~ integrity o~ the CMC
Sys ~em , that party shall notify the other parties. The parties
an ticipat e three types of action that could affect the yield of the
~c system or imp act the i ntegr ity of the system: namely, Water
W'urt action, Regulatory Action or physical trespass.
22
8.5 .l Wa t er Court action. In event of a •ater Court
111 •tion the parties s hall in good faith meet and diacuaa the
pote:i tial detrimental effect of the proposed Nater Court
ac tion on the CMC System and ita yield. The parties 1ball
deta rm i ne whe t her to jointly participate in the action. There
is . howeve ::, no requi rement for any party to intervene in or
C•';';.,;a e the Water Court action. Any party that chooses not ta
p ,,u::.c i pate in an acti on shall not be in breach of this
Agr eement but Section 6.2 may apply as a res~lt of the order
o:c decree. Any party who does part'icipate may settle and auch
sett lement shall not constitute a breach of this Agreement,
but Section 6 .2 may apply as a result of the settlement. (The
provi s i ons o f Secti on 6 .2 shall apply if a Nater Cuurt action
re~ults in an reduction of the yie~d of the CHC System even if
a pai:t:t sti pulat es t o or does not appeal the Nater Court's
de te=mi na tion .) Th i s Sect i on also applies to a State Nater
of ::icia l ' s dec i s i on or adlr.inistr ation which is impleme nted and
wo uld cause a reduction to the O!C System yield. Water Court
ac tion a l s o i ncludes any action concerning the Bl ue Ri ver
Oe~r ee , Civil Act i on Nos . 2782, 5016 and 5017, U.S. Distri ct
Co ur:. Denv er or. Englewood shall not be in breach of this
Ag re tm ent if t hey make d i vergent arg1wents in Case No. 9SCW065
Water Divis i on No. 5, bu t Section 6 .2 may appl~•. A change
from the 1992 tabulat i on shall not be considered il~lemented
unt il the wa t ?r official curtails the CHC Water Ri.ghts as a
result of the change.
8.5.2 ~e~ory Action. In event of a proposed
Reg ul a t ory Action •.Jr commencement of litigation that may
res ult in a Regulat1Jr:,-Act i on , other than Water Court or State
Water o f fic i als' pr.oposed at•tion, no party shall have the
authority to enter into any agreeme nt, decree or stipulation
that adversely affP.cts the CMC System or its yield without the
ex pres s wr itten consent of the other parties. The parties
s ha ll unan imo us l :t oppose any proposed adverse or possible
ad verse regulato r y action which could trigger the provi sions
of sect i on 6.?.. Any settlement of a proposed aQverse
dete rmi nation in a Reg ul atory Action shall be unan imous. If
any part y unilaterally consents to such an adverse
dete rmi nat i on , that part y shall bear the entire effect
res ulti n~ from the adverse determination , and shall hold the
other p arti es ha1-m~ess from the determi nation, in add i t i on to
being subjec t to wha t ever other legal remedies are available
to th e other part i es .
8 . S . 3 Phys i cal Tresoass, Liens and Encumbrances . In
e ~ent of an un authori zer e ntry upon the physical property or
right o f wa y withi n the CMC System, the parties shall in good
fa ith asses s the i mpact of t he entry upon the CMC System and
the a ppropri a t e means to e f fect a reme dy. Any party a t its
own c os t , ho we ver, can i ns t i tute an action to enforce the
e j ection o f the t r espass er o r to ma i nt ain t he i ntegr i ty c i the
23
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•
•• CMC System. Since the CMC System is jointly owned, the
parties will not contest their joinder in an eviction or other
action against the offender. If Denver prosecutes the action
under its obligati on to operate and maintain the CMr System,
any costs incurred shall be reimbursed under Section 6.2. If
&ny party causes a lien or encumbrance to be placed upon the
CMC System, that party shall take appropriate action to remove
the lien or encumbrance.
8.6 Water Quality. The quality-of water delivered by Denver
to Englewood under Article III or provided to Cyprus u,nder Article
IV, or produced by the CMC System, is on an "as is" basis only,
with no warranty expressed or implied. Then is no warrut:r tllat
the water will be fit for any particular pupo ■e. tn;lewood,
Denver and Cyprus waive any claims they may have a;ainst each other
ari sing from the qua l ity of the water. No party shall have any
treatment responsibil i ty for an,, water delivered or prcvided under
t h is Ag eement.
8 .7 Severability . If any provision of this Agreement shall
prove to be illegal, invalid, unenforceable or impossible of
performance, the remainder of this Agreement shall not be affected
thereby and in lieu of each such provision of thi s Agreement, there
sha l be added as part of this Agreement a provision which is
legal , valid, enforceable and capable of perforlllallce and which is
•
as similar in terms, content and effect as possible to the
provision tr,,t is illegal, invalid, unenforceable ~r impossible of
performance.
8. 8 Successors and Assi,?is. Thill Agreement or any of the
rights and obligations created ereunder shall not be assiqnallle by
any of the parties hereto except upon the express approval of the
othu parties signified with the same formality as by the execution
of these presents, which approval shall not be unreasonably
wi t hh eld ; provided however, that sales or leases by Denver or
Eng l ewood of the water provided to them under this Agreement shall
not be deemed to be an assignment. The following agreements do not
constitute assignments for purposes of this Section 8. 0·: the Water
Lease and Management Agreement dated August 3, 1977 between
Eng ewood and the City of Thornton; the February 24, 1986 Water
Ag r eement and Assignment between the City of Thornton and Mission
Vie j o Company; the March 31, 1986 Agreement and Assent to
Ass i gnment between Englewood and Mission Viejo Company; the
November 3, 1980 Water Supply Agreement between Englewood and
Mission Viejo company; the December 27, 1988 Quitclaim Deed,
Assignment and Bill of Sale between Mission Viejo Company and
Highlands Ranch Development Corp.; the December 27, 1988 Special
warranty need, A3s i gnment and Bill of Sale between Highlands Ranch
Developmen t Cn;F . and Centennial Water and Sanitation District.
•
8.9 Bindino effect.· The provisions of this Agreement are
bind ing upon and shall inure to the benefit and burden of the
24
parties' successors and assiqns.
8.10 Non Wa i ver Clause. This Aqreement may not be amended
nor any rights hereunoer waived except by an instrument in writing
signed by the parties to be charged with such amendment or waiver.
The waiver by any party of any term or condition of this Agreement
shall not be deemed to constitute a continuing waiver thereo.t, 11or
of any additional right that such party may hold under this
Agree ment .
8 .11 Headinq Clause . The article, section, paragraph and
subparagraph neaaings of this Aqreement are in1erted for
convenience and reference only and shall not alter, define, or be
used in construing the text of the articles, sections, paragraphs
or subparagraphs .
8 .12 Colorado Law. This Agreement shall be construed under
Colorado law.
8 .13 Integration. This Agreement constitutes the entire
agree.ment between the parties. It supersedes any prior agreements
or understandings betwe n the parties.
8.14 Survival. The provisions of this Agreement shall
survi ve ar.y transfer of title to the CMC System.
••
8.15 Effective date of deliveries. The effective date of •
delivery obligations under this Agreement is May 1, 1996.
8 .16 Dismissal and Waiver of Claims. The parties shall
promptly dismiss with preJudice aII claims and counterclailla raised
or which could have been raised in Case No. 93CV5585, Denver
District Court, except any claims of Englewood concerning diligence
on the conditional portion of the water rights decreed in Case No.
W-8 456-76, District Court Water Division No. 1. All parties shall
wa ive all claims they may have against each other, whether know ·, or
unknown, asserted or not asserted, arising out of acts or omissions
concern i ng the 1969 Modification or 1964 Basic Agreement or
De nv er's operations of the on or before the execution of this
Agreement. All parties shall bear their own costs and fees.
8 .17 Default . In the event any party is in material d fault
or fails to7ceepor perform any obligat i ons on its part to be kept
and performed according to tt,e terms and provisions of this
Agreement, and any other party gives the defaul~ing party written
not i ce specifying the particular default oc defaults, the
defa ulting party shall have thirty (3 0) calendar days ~n which to
cure such default or defaults , or institute action reasonably
calculated to cu r e such default(s ). Due to the uniqueness of the
sub j ect matter of this Agreement; the inadequacy of legal remedies;
the extreme diffi culty which may be experienced in calculating •
damages; and the impossibility of returning th~ parties to the
25
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•
condit i ons that existed at the time of this Aqre•ent, the non-
defaulting party(iesl shall have the right to specific performance
as a remedy. Waiver or failure to give notice of a particular
default or defaults under this section shall not be construed as
condon ing any cont inuing or subsequent default.
8 .1 8 Term. This Agreement is perpetual, except for the
provisions cciiicern i ng Cyprus which shall terminate when the
Henderso n Mine ceases operation under Article II.
ATTEST :
Secretar y
APPROVE D:
Planning Div1 s1on
APPROVE D:
Legal D1vi s1on
ATTEST:
City cler·
ATTEST :
Secretar y
CITY Alm C00IITY or DIIIYD
acting by and through its ll0alU) or WA'fD CCNIISIICRDS
By: "'P'=r-=-e-=-,.,..1d:re-=-ncct:::------'----
REGISTERED AND COUNTERSIGNED
Donald J. Mares, Auditor
CITY OF ENGLEWOOD, COLORADO
By : "R,..a_y_o_r __________ _
CYRUS CLIHU METALS COMPANY
By : __________ _
• 26
STAT£ OF COLORADO
IS,
CITY ANO COUN TY OF DENVER
The forego ing inatrum~nt waa acknowledged before me thia
day of ____ , 1995, b·( .,...,..,...-r--.--,.~ aa President, ""iiia
_______ as Sec:<:et11ry of the Board of Nater Commissioners.
Witness my hand and official s eal .
My comm i s s ion expires ______ _
STAT£ OF COLORADO
COUNTY OF ARAPAHO£
ss .
Notary Public
The f oregoi ng i nstrument was acknowledged before me t h is
da y o f ____ , 1995, by ,-,:=--,..,..,,.,.,....,,..,...""' aa Mayor, ""iiia
_______ as City Clerk of the City of Englewood .
Witness my hand and offici al seal.
My commission expires ______ _
Notary Public
STATE OF _____ _
ss .
CO UNTY OF ____ _
Th e f orego ing i nstrumen t was acknowledged before me this
da y of ------,• 1995,, by ::-r-=,=-:-..,....,.....-as 'Pres i de nt, ""iiia _______ as Secretary of Cyprus Climax M~tals .
Wi t ne ss my han d and off i c i al sea l .
My commi s sion expi res
No tary Pub lic
27
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&Xllmlff
C. T.xaJDPl .. of l)enver' 11 D .. 19D&tion aDd Delivery
1.)bl19at1ons to Englewood
D. curtail.JUnt Scb&dl.lle
E. ~e;ulatorY Action
r. Skylark ~,u,cb Weter lUght•
G • &argain and Sal• Peeds • G-1. cypru•
•
EXHIBIT A
DELIVERY PROCEDURES FOil WATER DELIVJ:IIED TO
EN GLEWOOD PURSUANT TO 81:CTiotll 3.2 AND 3.3
OF THE SETTLEMENT AGREEMENT
l . Notice for Change in Delivery Rate
2 .
a . Englewood shall give Denve r 48 hours' notice for
start i ng delivery or changing rate of delivery.
Exception: If the High Line Canal is shut off without
prior notice to Englewood (such as High Line called out
of pr i ority), a 48-hour notice to cease High Line Canal
deliveries to Englewood shall not be required.
b. Reque s t s for delivery start-up or changes in rate of
del ivery wi ll be made or accomplished only durir.g
norma l busi ness hours.
c. Eng lewood cannot require more than one change p,!r week
in High Line Canal delivery rate unless all del ~veries
are s t opped because the Canal is shut off or McLellan
Res ervoir fi lls.
Mi nimum a nd Maximum Delivery Rates in CFS
The followi ng rates apply to the combined total of Basic
Del iveries (Secti on 3.2) and Paid Deliveries (Section 3.3).
Deliveries in units of whole cfs-days only.
Maximum Total Maximum T?t.al of of All Muimwn Hi gh ChatfJ.eld and Oeli v ei:ies Line Delivery Strontia Springs Oates (cfs ) (ch) Deliveries (ch l
Apr il 15 -June 30 100 60 40
Ju 'ly 01 -October 15 BO 60 40
o ,;tober 16 -Apr il 14 50 0 50
n :\B1 tu\txhbt.A.doc:
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3 •
4 .
Maximum Change in Delivery Rates 2er Day
a. 60 ch for Hi9h Lina deliveriftB
b. 25 ch for all Chatfield and Strontia Sprin9s
deliveries combined
c . 60 cfs for all deliveries (High Line, Chatfield, and
Stront i a Springs deliveries combined)
Temeorary Changes in Delivery Re!l!!irements
Upon mutual agreement between Englewood and Denver, the
requirements in paragraphs 1, 2 and 3 above may be
temporarily changed in response to current water supply
conditions or other emergency conditions. Such agreement
may be verbal , but shall be confirmed in writing by the
part y request i ng the chan ge.
5 . Hig h Li ne Ca n al
a . Afte r a period of non-usage, Denver has right to run
the Hi gh Li ne Canal up to 48 hours before starting
del ive ri es to Englewood .
b. No ~e liveries will be made to Englewood in the High
Line Ca na l unless wate r already being delivered under
High Line 1879 right.
c . Denver and Englewood recognize that the High Line may
at times require maintenance or repair work and not be
available for use . When the High Line is anticipated
to b e unavailable, Denver will p r.ovide Englewood with
as much advance notice ·as is reasonably possible.
d. The mi nimum delivery rate for Englewood in the Hi gh
Line Canal is 5 c.f.s.
6 . Mon thly Plan
By the 2 5th o f every month, Eng).ewood is to provide their
bes t possibl e estimates of montl\ly deliveries of both Basic
and Paid De l iveries for the r.~maining months of the delivery
yea r . These est i mates include all deliveries to leases a nd
a s s igns. Es tirna t es are not binding, but are provided so
that Den ve r may bett er plan for operations of its mun i c i p al
water syst em .
n: \Ba tu\Wt>tA ....2
7 . Lia,itatlons of Basic Deliveries Water
En •1lewood shall take delivery of no more than 2/3 of the
yearly designated amount of Basic Deliveries during the
per i od May l through August 31 of each Wa ~er Year.
8 . Contact Persons
a. Reques t s for startup of delivery or change in delivery
rate sha l l be directed telephonically to the Raw Wat ~r
Supply section of Denver Water (628-6510).
b . Englewo od will schedule a.,d communicate to Denver all
del i ver y requirements including deliveries to its
lessees and co11 tract users of water delivered by
Den ve r .
9. Co nv ert i ng fcom CFS-Days to Acre-Feet
For purpo ses of comput i ng volume of water delivered,
1 CFS -Day shall be co ns i dered equal to 2 acre-feet .
10 . Del ive r y and Diversion Points
a . Hi gh Line Deliveries : High Line deliveries will be
mea sured at the gage adjacent to Platte Canyon
Reservo ir and deliver ed to the Dad Clark Gulch turn-out
on the High Line !or storage in McLellan Reservoir .
Del iveries to Dad Cl ark Gulch will be reduced by 16%
for carri age l osses between the High Line gage and the
t urn-out. Such del i ver i es will be measured at the gage
on Da d Clark Gulch between the High Line and McLellan
Res ervoi r . Eng l ewood wi ll be responsible for
ma i nta i ni ng the accuracy of the Dad Clark gage.
b .
Noth i ng i n thi s agreement creates any obligation for
De nver to deliver Basic Del i veries, Paid Deliveries, or
an y ·othe r water in the High Line Canal f or the benefi t
of En g lewo od. Englewood's rights to use the High Li ne
Can al f or the delivery of Basic and Paid DeHveries
prov ided under the Settlement Agreement, and any other
wate r s, is the subject of a separate agreement between
Englewood and Denver executed contemporaneousl y
herewith .
Stro n ti a Springs or Chatfiel~ Reservoir Deliveries wi ll
be made to one or mo re of t.ae follow i ng : -·
••
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Delivery Point Me~•ur ... nt Point Divertion Point
City Ditch Hudgate City Ditch 9•9• Nct.ellon lle ■arvoir or
En9lewoocl' • Allen
••tor TreotMnt Plant
Nevada Ditch Havada Ditch 9•9•
Laa t Chance 9•9•
Chotfiold outflow
9•9• or Strontia
Sprin91 outflow
9a9~, re ■pec
tively
Propo ■ed Kievit Reaervoir
Propoaed KieMit Re ■ervoir La ■t Chance Ditch
Chatfield or Strontia
Sprin9s outlet, to
South Platte River
-Union Avenue Intake
-En1or well field
-Propooed DOIi well field
12 .
-Mclrooa Ditch (by
uchan9e on lear
Creek flow)
-McLellan Re ■er voir
(by oxchango on Dad
Clark flow)
Other deliveries from Chal fi eld or Strontia Springs will be
made upon written approval by Denver .
Nothing in this Settlement Agreement shall prejudice or
otherwise be construed as either Denver or Englewood's
agreement, acquiescence, or approval concerning the
propriety of using the City Ditch, Nevada Ditch, Last Chance
Ditch, or Kiewit Reservo ir facilities for the conveyance or
storage of water delivered hereunder. The parties expressly
r eserve whatever opposition or challenges eac,. may make
con~erning the propriety of such uses .
Provisions for Unforeseen Circumstances
Denver agrees t o use every reasonable means to furnish a
supply of water consistent wi th these delivery procedures
set forth in this Exhibit. No liability, however, shall
attach to Denver for failure to make any required delivery
to Englewood if the failure results from one or more of the
following occurrences on the eastern slop~ of the
Continent al Divide which is beyoond the re11sonable control
of Denver: failure or inoperability of any dam, conduit,
ditch, headgate, valve, or any other storage or delivery
facility; or non-deliverability resul t ing from tP.rroris~,
act of war, vandalism or malicious mi$Chief; strike or other
labor disturbance; power outage; or windstorm, fl~od,
earthquake; provided howevir, t hat Denver shall p~r~eed with
all reasonable diligence to repair any Denver faci , ty whl.ch
is the cause of the failure of delivery, and recomrr ,,mce
del ivery; and provided that Denver and Englewood shall
cooperate in seeking promptly to establish any practical •
alternative means of d~livery while the cause of the failure
remains uncorrected. Notwithstanding paragraphs 3.2.4 and
3.3.3 Denver will make reasonable efforts to replace the
loss of delivery at a practical later date.
•
n:\Blt u \Cal.1-ctA •
•
BASIN
South Platte
8111 Cr11k
..
Colorado River
• 1:W1 h_a.wp
EXHIBIT B
REUSABLE SOURCES
RIGHT J CASE NUMll!R
...
BHry Ditch W-713'-74
Fuur Mlle Oilctt IOCW313
Brown Ditch 119CW014
Nevada Ditch 111cw1n
Lat Chance Ollch No. 2 112CW014
Pioneer-Union Ditch 81CW100
Hodgson Ditch 81CW102
Harriman Ditch 81CW103
!tobert Lewis Ditch 111CW105
Simonton Ditch 11cw1oe
Warrior Ditch 81CW109
Blue River Dlvol"lion Projlct W-1805
W-180II
W-2712
W-50,11
W-5017
Moffat Tunnel Colection CA.-1430
System and Oaring CrHk
Extension of the Wi llams FOfk
Diversion Project
Fraser River and Wi llia ms Fork C.A.-e57
Oive.slon Projects
Homilton-Cabin C<Hk Ditch , C.A .-e57
Extension Ind Enlargement of
the H1"1i ft on CrHk Ditch ,
t-!.1adow Creek RHINoir
NOTE
Denv1(1 un of efflu1nt from thno
sources ii subject to Iha Court·•
ruing in 81CW405 .
Denv1(1 1111 of affluent from thno
IOUl'Cel la IUbjocl to the provilionl
of 1h11 Settlement Agraemant .
Exhibit C
E>..lmple ■ of Dea,..r', Duipatioa and
Delivery Obli1ationa to Englewood
While the Henderson Mine i1 In Operation (3 .2.1)
.ldiw:ill
2,700 a.f,/yr . maximum
2,600 a.f./2 yr . minimum
23 ,200 a.f./10 yr. minimum
Appljcatjon of Crjterja
Draf\ 12/16194
Rmaed7/11/95
To allow for compliance with the above -slated criteria, the following minimum amounts
must cumulatively be designated during the number of conaecutive years u indicated.
Number of
Consecutive Yw ·ll
I
2
3
4
5
6
7
8
9
10
Minimum Amount which Cumulatively
Mut be Peaignated Cacrn-feet>
0
l800
4300
7000
9700
12400
15100
17800
20600
23200
Non-Excluejve Examples oCD,ajmatjon fiegujrements /acre -feel\
Year Exa
I 2700
2 2700
3 2700
4 2700
6 2700
6 2700
7 2700
8 2700
9 ~700
10 0 I
II 2600
a:\&Let \ExbbtC.doc
••
•
•
••
•
•
a.
1.
2.
3.
4.
5.
6.
Examples 1 through Ii ■-ume the maximum or 2,700 a.£. bu been deai111ated lor
the 9 years prior to year 1. Eumplea 1 tbrvugb 6 do not reflect the period
immediately subsequent to the effectlw date or thil agreement linc:e they diaregard
paragraph 3.2.1, which requires that it be aaaumed t.bat Denver deaignated
2,500 a.£. during each or I.he nine Water Yeara preceding I.he Water Year Denver
first designates water. Example 6 ■-ume1 2,500 a.r. bu been deaignated each or
the nine Water Year■ preceding year l and u 1uch ii conailtent with the
requiremenla of paragraph 3.2 .1.
In example 1, I.he minimum that can be designated in year 11 ii 2,600 a.£. lo comply
with 2,600 a.£./2 yr . criterion over year■ 10 and 11 . The 10 year total (year■ 2-11) ii
24 ,300 a.£. which satisfies 23,200 a.£. requirement.
The 2,600 a.f./2 yr . criterion would allow a minimum oro a.£. lo be deaignated in
year 4. However, to aatisfy the 10 year requirement of23,200 a.£., a minimum or
4,300 a.£. ml18t be design11t..d over any 3 consecutive year■, meaning that at leut
1,700 a.f. ml18t be deaignated in year 4.
The 2,600 a.f./2 yr. criterion would allow a minimum or 900 a.£. to be designated in
year 5. However, to aatisry the 10 year requirement of 23,200 a.£., a minimum of
7,000 a.£. must be designated over any 4 consecutive year■, meaning I.hat at leut
2,700 a.£. must be des ignated in year 5 (and for the remaining 6 year■) ..
The 2,600 a.f./2 yr. criterion would allow a minimum or600 a.£. lo be designated in
year 7. However, to satisry the 10 year requirement of 23,200 a.£., a minimum or
12,400 a.£. must be designated over any 6 consecutive year■, meaning that at leut
2,400 a.£. must be de signated in year 7.
The 2,600 a.£./2 yr. criterion would allow a minimum oUOO a.£. to be deaignated in
year 8. However, to satiary the 10 year ref\uirement 0£23 ,200 a.£., a minimum of
15,100 a.£. ml18t be designated over any 7 consecutive year■, meaning that 2,700 a.£.
must be designated in year 8 (and the following 3 year■).
The 2,600 a.f./2 yr . criterion would allow a minimum of 100 a.f. lo be designated in
year 2. However, to aatiafy the 10 year requirement of28,200 aJ., a minimum of
700 a.£. ml18t be designated in year 2.
Arter the Henderson Mine Ceases Operation (3.2.2.)
~
3,200 a.£./yr. maximum
1,500 a.f./yr . minimum
4,100 a.£./2 yr . minimum
26 ,600 a.£./10 yr. minimum
Apoljcation of Criteria
To al)o.,) for compliance with the above-staled criteria, I.he following minimum amounts
must be cumulatively designated during I.he number of consecutive years u indicated .
a:\Bat..\EdlE.doc P ... 2
Number of
Q,naec utivo Yaara
1
2 a
4
5
6
7
8
9
10
Millimum Amount which Cumulatively
MY1t ht Pt•in•ted CIA't•fntl
1600
4100
5600
8200
10600
18800
17000
20200
23400
26600
Non-Exclusive ExampJ•• or P,aignatjon Bmmiremont■ '■qe•fnt>
Year Eumele 1 Eumele2 EuQ1ele3 E!!!!!9ele4 E!!!!!9Ele 5 , E!!!!llele 6 Eumele 7
I
2
3
4
5
6
7
8
9
10
II
a,
1.
2,
3,
4,
3200 32C'J 3200 8200 8200 8200 , 2930•
3200 1500 1500 1500 1500 2150 1500
3200 26002 2600 2600 2600 2150 2600
8200 1500 15003 1500 1500 2150 19901
8200 2600 2600, !600 2ln0
3200 2400 MOO& rroo,
8200 8200 2500
8200
8200
15001
2600
Examples 1 through 6 auume the maximum of 3,200 a.C. hu been dui111&ted for
the 9 yeara prior to year 1. Examplea 1 through 6 do not reOect the period
immediately subsequ~nt to the year Henderson Mine ceases operation since they
diaregard paragraph 3,2,2,, which requirea that it be aaaumed that Denver
designated 2,930 aJ, during each of the nine Water Yeara preceding the Water Year
Henderson ceases operation , Example 7 aaaumes 2,930 a,£, has been desisnated
each of the nine Water Years preceding year 1, and as auch is consistent with the
requirements of paragraph 3,2,2,
In example 1, the minimum that can be designated in year 11 is 2,600 a.f, to comply
with the 4,100 aJJ2 yr, criterion over yeara 10 and 11. The 10-year (yeara 2·11)
total is 29 ,700 which satisfies the 26,600 a.C, requiremeut,
The 4,100 aJJ2 yr , criteriou allows a minimum of 1,500 a,£, to be designated in
year 4, This also satisfies the requirement that a minimum of 5,600 a,C, be
designated over any 3 consecutive years ,
The 4,100 aJJ2 yr, criterion allows a minimum of2,600 aJ, to be deaignated in
year 5, This al8'.> satisfies the requirement that a minimun, of 8,200 a.f, be
de1ignated during 4 conaecutive years ,
The 4,100 aJ,/2 yr, criterion would allow a minimum of 1,500 a.C, to be designated in
year 6, However , to satisfy the 10-year requirement of 26,600 aJ., a minimum of
10,600 eJ, must be deaignated over any 5 consecutive years , meaning that at least
2,400 a.[ must bP. designated in year 6,
11:\Bat.1\EuE.doc
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•
•
6.
7.
The 4,100 a.f./2 yr . criterion 'Mlllld allow ■ minimum of 1,700 a.f. lo be deai1111■ted in
year 7. However , u, 1■ti1fy the 10 year requirement of26,600 ■,t, ■ minimum of
13,800 a.f. must be deaign■ted over any 8 CODJeCulive yean, me ■nins that at leut
3,200 a.f. must be designated in year 7 (and the following 4 yean).
The 4,100 a.f./2 yr. criterion would ■llow a minimum of 1,400 ■J. lo be delignated
in year 7. However , since this ia leu than the 1,500 aJ./1 yr. criteria, the 1,500 a.f.
would control. To aalisfy the 10 year requirement of28,600 a.r., ■ minimum of
13,800 a.f. must be designated over any 6 coDJeCUtive yean, me ■w111 that 2,500 a.f.
mll!t be designated in year 7.
The 1,500 a .f./yr . and 4,100 a.f./2 yr . criteria control deaignation oblig■tiom for
years 2 and 3, respectively . However, year 4 deeignation is controlled by the
26,600 a.fJlO yr . criterion, which require■ that a minimum or 1990 ■.f. be
delignated in year 4 .
a:\Bate,\El.h.E .doc
EXHIBIT D
CURTAILMENT SCHEDULES
I. GENER~
Curtailmeo.\. shall occur only in the event of either a complete
failure of any component of the Cabin-Meadow Creek System which
prevents any Denver usage of the respective component of said
system, or a partial failure of any component which causes
Denver, in its own discretion, to completely shut out that
component of said system.
Not specifically addressed by the storage curtailment procedures
described in this Exhibit Dare situations, ouch as a •hold
order" by the State Engineer's Office, restricting the usable,
active storage capacity of Meadow Creek Reservoir below it!
historic and current capacity or any other action similar!~•
reducing the usable capacity of Meadow Creek Reservoir below its
his t oric and current capacity.
II. CURTAILMENTS OF BASIC DELIVERIES TO CYPRUS AND ENGLF,WOOD UNDE R SECTIONS 4.2 AND 3.2 1 RESPECTIVELY
A. DIRECT FLOW CURTAILMENT SCHEDULE
1. Curtailmer,t for Denver's loss of dJ rect flow shall
be based ~n the number of days of outage in the
May 1-to-June 30 period (inclusive) each year.
••
No curtailment shall result for any day outside of
the M;1y 1-June 30 period, inclusive, during which •
Denve r l oses direct flow water due to an outage.
2. Curtailmer,ts oo. an interceptor-by-interceptor
basis sha ·,1 b~ assigned using the following
percentagl.!S of losses of di.rcct flow :
3.
Meadow Creek
Hurd Creek
North Trail Creek
Tributary
5outh Tr?il Creek
Tributary
Hamilton Creek
Cabin Creek
Little Cabin Creek
Total
01•
141
4.51
4.5\
21\
501
6\
TC1r(
*There shall be no curtailment for losses of
direct flow from Meadow Creek.
The volume of curtailment for Denver's loss of
direct flow in a given year shall be calculated
interceptor-by-interceptor by taking the product
of: •
••
•
•
a. Denver's total designated deliveries to
Cyprus and Englewood under Section 4.2, and
paragraphs 3.2.1 or 3.2.2, respectively;
b. The ratio of the number of days of the outage
divided by 61;
c. The interceptor-assigned percentage of loss
of direct flow from IIA2 , above; and
d. 401, said 401 being the historic (1975-1993)
fraction of total yield derived by Denver in
its operation of the Englewood Ranch Creek
Collection System which is attributable to
direct flow.
Examples
The following examples describe the operation of the
direct flow curtailment schedule.
a.
b.
Example 1
(1) Direct flow is available for diversion
at the Trail Creek points of diversion,
but the main Trail Creek interceptor
conduit which carries diversions from
both North and South Trail Creek
tributaries ("Trail Cr~ek Interceptor")
is partially out due to a break for the
June 1-to-June 21 period, and Denver, in
its own discretion, elects to shut out
the main Trail Creek Interceptor.
(2) Denver had designated 3,000 af to Cyprus
and 2,700 af to Englewood under Section
4.2, and paragraphs 3.2.l or 3.2.2,
respectively.
(3) Volume of curtailment • 71 af.
(• 5,700 x 21 days x 91 x 401)/61 days
Example 2
(1) In addition to the Trail Creek
Interceptor outage given in Example 1, a
pipe break in the Cabin Creek
interceptor has caused an outage for the
June 22-to-June 30 period .
2
B.
3 .
(2) Denver 's total designated delivery
remains at 5,700 af.
(3) In addition to the Trail Creek
Interceptcr curtailment of 71 af, the
Cabin Creek curtailment would be 168 af.
(5,700 af x 9 days x SOI x 401)/61 days
Thus, the total direct flow curtailment
would be 239 af
(• 71 af + 168 af).
Example 3
(l) A break in Englewood's main conduit near
its interconnection with Denver has
occurred on April 30, an~ has not been
repaired by the end of June.
(2 ) Denver had designated 3,000 af to
Cyprus-Cl i max and 2,700 af to Englewood .
3 ) Volume of curtailment • 2,280 af.
(5,700 af x 61 days x 1.0 x 401)/61 days
ST ORAGE CURTAILMENT SCHEDULE
l. Curtai l ment for Denver 's inability to deliver
storage water from Meadow Cr ~ek Reservo i r for any
given period(s) solely during the July 1-0ctober
31 period, inclusive, shall be c·alculated as the
product of:
a . The di fference in percentages from TABLE l
from the last day of outage and the day
before the first day of outage ; and
b . The sum of Denver's des i gnated deliveries to
Cyprus and to Englewood under Section 4 .2,
and paragraphs 3.2.l or 3.2 .2, respectively.
2. Exa mples
The f ol lowi ng two examples illustrate the process of
qua nti f ying such storage curtailme~ts .
a . Exa mple 1
(l) A probl em with the outlet for Meado w
Cr~ek Reservoir preve~ts Denver from
3
••
•
•
•
•
•
(2)
(3)
withdrawing any water from storage from
September 4 through September 29.
Denver had designated 3,000 af for
Cyprus-Climax and 2,700 af for
Englewood .
Volume of curtailment• 1,037 af.
(• (43.31 for end of September 29 minus
25.101 for end of September 3) x 5,700
af)
b. Example 2
(1)
(2)
(3)
A break in the Englewood main conduit
just upstream from the inte rconnection
with Denver prevents Denver from
withdrawi ng water from storage .from July
1 thr ough October 31.
Denver's total designated del i very
remains at 5,700 af.
V,:.,lume of curtailment • 3,420 af.
(• (60 .001 for end of October ?l -0.001
fo r July l)x 5,700 af)
C. TOTAL CURTAILMENTS
Den ver's total obligation to deliver water to Cyprus· and
Englewood under Sections 4.2 and 3.2, respectively, shall be
reduced by an amount equal to the sum of the Dlrect Flow
Curtailment (A) and the StQrage Curtailment (B), as follows .
1 . While Henderson is in operation the reduction wi ll
f i rst be applied against the volume of water
Den ver is obligated to deliver to Englewood under
paragraph 3 .2.1 . If the amount of reduction
exceeds the amount designated for delivery to
Englewood, Denver's delivery obligation to Cyprus
under Art i cle IV will be reduced until the
add i tive total of the amount de s ignated for
de livery to Englewood and the reduction in the
amount deliverable to Cyprus equals the total
amount of reduc t ion calculated i n IIC , immediately
above.
2. Af t er Henderson ceases operation . the total amount
of reduction determined in IIC, above , shall be
divided by two before be i ng applied against
4
Denver's delivery obligation to Englewood under
paragraph 3.2.2.
3. Any reduction in delivery obligations s hall not
reduce amounts previoualy designated or required
to be designated by Denver under Article III of
the general agreement among Cyprus, Denver, and
Englewood.
4 , In the event, during any Water Year, Denver
delivered water in excess of its obligations after
the total curtailment has been calculated pursuant
to IIC, above, Denver's delivery obligation(s) in
the next year(s) shall be reduced in an amount
equivalent to the excess. This curtailment(s)
applied in subsequent year(s) shall not reduce
amounts required to be designated under Article
III of the general agreement among Cyprus, Denver,
and Englewood.
III . CURTAILMEN T OF PAID DELIVERIES TO ENGLEWOOD UNDER SECT ION
A. CURTAILMENT SCHEDULE
1. Curtailment for Denver's loss of direct flow shall
be based on the nUJDber of days of outa7e in the
May 1-to-June 30 period (inclusive) each year.
No curtailment shall result for any day outside of
the May l-June 30 period, inch',~ive, during which
Denver loses direct flow wa t e r di·,e to an outage.
2. Curtailments on an interceptor-by-interceptor
basis shall be assigned using the following
percentages of losses of direct flow :
3.
Meadow Creek
Hurd Creek
North Trail Creek
Tributary
South Trail Creek
Tributary
Hamilton Creek
C<1bin Creek
Little Cabin Creek
Total
01•
141
4.51
4.51
211
501
61
TOUT
*There shall be no curtailment for losses of
direct flow from Meadow Creek .
The volume of curtailment for Denver's loss of
5
••
•
•
••
•
•
di~ect flow in a given year shall be calculated
interceptor-by-interceptor by taking the product
of:
a. Denver's total designated deliveries to
Englewood under Section 3.3.
b. The ratio of the nwnber of days of the outage
divided by 61;
c. The interceptor-assigned percentage of loss
of direct flow frnm IIIA2, above; and
B. EXJ\MPLES
The following examples describe the operation of the
curtailment schedule:
l. Examole l
a.
b .
Direct flow is available for diversion at the
Trail Creek Interceptor points of diversion,
but the main Trail Creek Interceptor is
partially out due to a break for the June 1-
to-June 21 period, and Denver, in its own
discretion, e l ects to shut out the main Trail
Creek Interceptor .
Denver had designated 500 af to Englewood
under Section 3.3.
c . Volume of curtailment• 15 af.
(500 x 21 days x 91)/61 days
2. Examole 2
3 .
a. Direct flow is available for diversion at the
Trail Creek Interceptor points of diversion,
but the main Trail Creek Interceptor is
partially out due to a break for the June 1-
to-June 21 period, and Denver, in its own
discretion, elects to shut out the main Trail
Creek Interceptor.
b. Denver had designated Oaf to Englew~od under
Section 3. 3.
Volume of c u.r t ailment • 0 af.
6
C.
(0 x 21 days x 91)/61 days
Any reduction in delivery obligations shall not reduce amounts previously designated or .equired to be
designated by Denver under Article III of the general
agreement among Cyprus, Denver, and Englewood.
D. In the event, during any Water Year, Denver delivered
water in excess of its obligations aft~r the total
curtailment has been calculated pursuant to IIIA,
above, Denver's delivery obligation in the next year(s)
sha ll be reduced i n an amount equivalent to the excess.
7
•·
•
•
EXH .I BIT E
REGULATORY ACTION
I. GENERAL
The purpose of this exhibit ia to give guidance to -the parties
and/or to the engineering arbitrators (collectively, "the
successors") in implementing reductions pursuant to Section 6.2
in Denver's obligations to deliver water to Cyprus and to
Eng l ewood under Articles IV and :en, respectively, of the
settlement agreement .
This exhibit describes the general bases on which Denver's
de liver y obligations to Englewood and Cyprus set forth in
Art icles III and IV were determined. The successors shall use
the descriptions herein as the bases on which reductions L~
Denver's delivery obligations are to be determined. Because the
exac nature of any future Regula t ory Action, and the resultant
adver se effects upon the yields of the CMC System and CMC Water
Ri ghts, cannot be foretold, the purpos e of this exhibit is to
provide guidel611es, within a defined methodoloffi' to implement
reductions 1n enver's delivery obligations. is exhibit also
provi des examples of such reductions resulting from hypothetical
Re gul atory Actions . By setting forth the guidelines outlined in
this exh i bit, the parties are not expecting, acquiescing, or in
any manner agreeing to the authority, appropriateness, or
necessity of any lh,gulatory Action.
II. USE OF W.W. WHE£~E R AND ASSOCIATES, INC ., YIELD STUDIES OF
THE CABIN-MEADOW CREEK SYSTEM
A. General
Pursuant to Section 6 .2 of the settlement agreement, the
successors shall determine the reductions i n yields from the
CMC System and CMC Water Rights resulting from a Regulatory
Action by application of the action to the W.W. Wheeler
Yield StudiE·s, provided the successors agree that the 1952-
through-1956 study period is adequate so as to incorporate
the full effect of any long-term impact. Then, by
comparison of such altered yi elds with the yields defined by
t he W.W. Wheeler Yield Studies, the successors are to make
appropriate reductions to Dem•er' s deli very obligations.
The use of the term "yield" herein, and its derivatives
here i n, i.e., "W.W. Wheeler Yield Studies," "altered
yields," and "reduced yields,• is syr,onymous with the term,
"L awfully Divertable Amount,• defined in paragraph 6.2.1 of
the settlement agreement .
The successors should utilize the operational criteria, to
the extent practicable, in the same fashion and to the same
extent as utilized in the W.W. Wheeler yield atudies, except
to the extent by which the effects of the Regulatory Action
are measured and results therefrom are calculated.
B. Definition of the W.W. Wheeler Yield Studies
Attached to this exhibit is a copy of an outline, entitled
"Summary of Cabin-Meadow Creek System Yield Studies,
Conducte~ by W.W. Wheeler and Associates, Inc. 1967-1975,"
prepared by Mr. Gary Thompson, P..E., engineering consultant
from W.W. Wheeler and Associates, Inc. for Cyprus in the
settlement negotiations leading to the settlement agreement.
This summary describes some of the basic assumptions and
monthly streamflow hydrology incorporated into the W.W .
Wheeler Yield Studies. The W.W. Wheeler Yield Studies, in
turn, incorporated in varying degrees results and
assumptions described in the following studies: (1.) an
untitled and undated handwritten spreadsheet of a yield
study of the Cabin-Meadow Creek System (attached); (2)
"Report on Proposed nanch Creek Collection and Storage
System," dated April, 1956, prepared by Tipton and Kalmbach,
Inc .; (3) "Supplement to Report on Proposed Ranch Creek
Collection and Storage System,• dated October 31, 1956,
prepared by Tipton and Kalmbach, Inc.; (4) "Report on
••
Proposed Ranch Creek Collection System," dated December, •
1970, prepared by W.W. Wheeler and Associates, Inc.; (5) a
letter report, "Re: Ranch Creek Yield," dated September 8,
1975, prepared by W.W. Wheeler and Associates, Inc .; and (6)
"Englewood's Ranch Creek Project Yield," dated June 7, 1985,
prepared by W.W. Wheeler and Associates, Inc.
Tables 1 through 7 of the Thompson outline set forth the
amou nt of flow assumed to be available to the Cabin Meadow
System at Meadow Creek Reservoir (Table 1), Trail Creek
Divers i on (Table 2), Trail Creek Tributaries (Table 3), Hurd
Creek (Table 4), Hamil t on Creek (Table SJ, Cabin Creek
(Table 6), Little Cabin Creek (Table 7).
Tables 9 through 15 set forth the assumed requirements for
water by senior water rights immediately below thP. Cabin
Meadow Creek System at Meadow Creek (Table 9 -Vail Ditch),
at Hurd Creek (Table 10 -Hurd Ditch), at Hamiltc,n Creek
(Table 11 -Axel Ditch), at Little Beaver Creek (Table 12 -
Dia mond-T Ditch; Table 13 -Fullerton-Klein Ditches), at
Little Cabin Creek (Table 14 -Hartshorn Ditch), and at
Cabin Creek (Table 15 -Fullerton Nos. 2, 3, Granite, and
Cabi 1.1 Creek Ditches).
Englewood and AMAX (Cyprus's predecessor), did not construct
interceptors to divert streamflow from Trail Creek and from
2 •
•
•
•
Little Beaver Creek. Englewood and AMAX did construct
interceptor• on the two Trail Creek (North and South Trail
Creek Tributaries) tributaries as contemplated at the time
of the December, 1970, Wheeler report. The Wheeler yield
studies of September, 1975, and June, 1985, did exclude the
Trail Creek and Little Beaver Creek streamflows from the
yields of the Cabin-Meadow Creek System, and the successors
should do likewise in their ·analyses of the effects on yield
from a Regulatory Action. Since the Little Beaver Creek
interceptor was never constructed, the requirements for
water by the Diamond-T Ditch (Table 12) and by the
Fullerton-Kline DitchP.s (Table 13) no longer have any
relevance to the yield of the Englewood Cabin-Meadow Creek
System as estimated by the W.W. Wheeler Yield Studies.
Tables 16, 17, 18, and 19 set forth the "W.W. Wheeler Yield
Studies" from the Cabin-Meadow Creek System. These yields,
in part, were used as the basis for establishi.1 g Denver's
delivery obligations to Cyprus and to Englewood under
Articles IV and Ill, respectively.
C. Exalanation of Denver's Delivery Obligations to Cyprus
an to Eng fo ,,'._24
1. While Henderson Mine !s In Operation (Par.agraph
3.2 .1)
a. Deliveries to Cypru!
Based on Column A2 of Table E-1, the engineers
determined that Denver's maximum delivery
obligation to Cyprus would be 3,000 acre-feet each
year with Denver, however, retaining the right to
limit its delivery to Cyprus to 2,650 acre-feet in
any one year out of ten consecutive years. (A
1954 yield to Cyprus of 2,654 acre-feet from ?.
different W.W. Wheeler yield study was selected as
opposed to the 1954 yield of 2,363 acre-feet shown
in Column A2 of Table E-1.)
b. Deliveries to Englewood
(1) Basic Deliveries
Based, in part, on Column A3 of Table E-1,
and also upon actual yields historically
available from the Cab i n-Meadow Creek System
since its initial operation beginning in
1975, and also upon compromise, the engin~ers
determined that (a) Denver's minimum ten-year
delivery to Englewood would be 23,200 acre-
feet (rounded down from the annual average of
3
2.
2,322 acre-feet); (bl Denver'• ■ini■um
delivery to Englewood in any one year would
be zero acre-feet; and (cl Denver a ■inilllum
delivery to Englewood over any two
consecutive years would be 2,600 acre-feet
(rounded down from 2,608 acre-feet). Using
engineering judgment and upon compromise, the
engineers set Denver's maximum aMual
delivery at 2,700 acre-feet.
(21 Paid Deliveries
The engineers reviewed W.W. Wheeler's Yield
Studies of the quantification of South Platte
River Exchange yields to Englewood shown in
Column C(21 of Table E-1. Due to many
complexities and limitations associated with
the actual realization of such yields, the
engineers compromised on a Denver delivery
obligation to Englewood in lieu of the actual
operat i on of the South Platte Exchange
whereby Denver's delivery obligation will
consist of (al a minimum ten-year delivery of
3,200 acre-feet; and (bl a maximum annual
delivery of 700 acre-feet.
After Henderson Mine Ceases Operation (Paragraph 3.2 .2)
(a) Basic Deliveries
Based in part on the results shown in Column B2 of
Table E-1, and also upon yields actually available
from the Cabin-Meadow Creek system since its
initiation of operation in 1975, and also upon
compromise, the engineers determined that (1)
Denver's minimum t.en-year delivery to Englewood
would be 26,600 ac re-feet; (2) Denve r 's minimum
delivery to Englewood in any one year will be
1,500 ~e re-feet; and (3) Denver's minimum de livery
to En~.ewood over any two consecutive years would
be 4,100 acre-feet. Upon compromise and in return
for a larger minimum-year delivery than indicated
by t he W.W. Wheeler Yield Studies, the engineers
set Denver's maximum annual delivery at 3,200
.~crt!-f~~t.
{b ) Paid l)eliveries
Because the South Platte River Exchange, which the
Paid Deliveries effectively replaced, was to
operate independently from the Denver Exchange,
4
••
•
•
••
•
•
the engineers retained the exact same Denver
delivery obligation as described in IICl(b) (2)
herein for the period during which the Henderson
Mine is in operation.
III. IMPLEMENTATION OF REDUCTIONS IN DENVER'S DELIVERY
OBLIGATIONS
A. General
Denver's obligations to deliver water to Cyprus are
essentially defined by two terms: Ill provision of a
delivery of up to 3,000 ,1cre-feet each year; and (2) Denver
may deliver only 2,650 acre-feet in any one year out of any
ten-year period. Likewise, Denver's obligations of Basic
Deliveries of water to Englewood require a minimum ten-year
del ivery, a minimum annual delivery in any one year (after
termination of operation of Henderson Mine), a minimum
de livery over any two years, and a maxim11111 annual delivery.
Denver's obligation of Paid Del i veries to Englewood only
require a minimum ten-yeai delivery and a maxim11111 annual
delivery . If faced with the task of modifying Denver's
deliver obligation, based on the impacts of the Regulatory
Action to the W.W. Wheeler Yield Studies determination, it
may be appropriate or even necessary to extend the 1952-1956
Wheeler study period. Nonetheless, the settlement engineers
provide the following guidelines and examples for
consideration as appropriate and applicable .
B. Denver's "Denver Exchange• Delivery Obligations
1. General ·
The term "Denver Exchange," as used herein, is meant
only to be used as a ~eans to the end of determining
what Denver's delivery obligations, using the W.W.
Wheeler Yield Studies, would have been if the 1964 and
1969 agreements had been operating after the imp o sition
of a Regulatory Action.
2. Denver's 'Denver Exchange" Delivery Obligation to
Cyprus
Table E-2 summarizes the effects upon the yields of
Englewood's Cabin-Meadow Creek System resulting in a
hypothetical regulatory action or legal failure.
Comparison of Col11111n AS of Table E-2 with Col11111n A2 of
Tab l e E-1 reveals that insofar as Denver's obligations
to Cyprus are concerned, only the minimum-year, 1954
yield has changed, reduced from 2,363 acre-feet to
2,000 acre-feet. So long as the use of any other
period other than 1952 through 1956, inclusively, shows
5
I
that the Cyprus Credit would not be less than 3,000
acre-feet during any ten consecutive years, the • ·
settlement engineers would recommend that Denver's
obligations to deliver water to Cyprus retain the
requirement for Denver to deliver up to 3,000 acre-feet
each year. However, the onr.e-in-ten-year requirement
should be reduced to 2,246 acre-feet, which is
determined as follows.
Because the settlement agreement's once-in-ten-year
requirement was 2,650 acre-feet, based on a different
Wheeler yield study than that presented in Table E-1,
the settlement engineers would reduce the 2,650 acre-
feet by proration, the new once-in-ten-year requirement
being 2,243 acre-feet.
i.e. 2,650 X 2,QQQ/2,363 = 2,243.
During this occurrence, which is assumed to occur no
more frequently than once during any ten consecutive
years, Denver's obligations to release water from
Williams Fork Reservoir (WFR Replacement Account) shall
also be reduced proportionately to 1,862 acre-feet.
i.e. 2,200 X 2,QQQ/2,363 • 1,852
Deliver Obli ation to
a . With Henderson Hine in Operation
The full reduction of the total "Denver Exchange"
yie l ais to be applied first to deliveries to
Englewood, and second to deliveries to Cyprus if
the reduction is so great as to eliminate any
obligation to l".nglewood. The hypothetical
reductions in Table E-2 do not completely
eliminate Denver's obligations to Englewood. The
settlement engineers would reduce Denver's
delivery obligations to Englewood as follows, from
Table E-2.
Assum ing the successors consider the 1952-1956
study p1!riod adequate so as to incorporate the
full effect of any Regulatory Action, the 10-year
minimum would fall to 19,860 acre-feet as a result
of subtracting the full reduction of total yield
from Englewood's allocation of Wheeler's basic
yie l ds, shown in Column A(6) of Table E-2 .
The minimum annual delivery of zero acre-feet
would remain at zero acre -feet.
6
•
•
•
•
•
The aini11111111 2-year obligation would be red.uced
from 2,600 acre-feet to 2,200 acre-feet 12,200
acre-feet for 1953 plus O acre-feet for 1954).
The maximum annual delivery would be reduced to
2,311 acre-feet. (19,860 x 2,700)/23,200
b. After Henderson Mine Ceases Operation
The full reduction of the total "Denver Exchange"
Yield is to be applied to deliverie1 to Englewood,
as shown in part B of Table E-2. The settlement
engineers would first reduce Englewood's pre-
reduction yie l ds i ~ Col11111n B5 of Table E-2 by the
hypothetical reducti?ns in yield (Column BJ of
Table E-2) to ?I t i•e at Englewood's "initial"
post-reduction yie_ld (Column B6 of Table E-2).
Then, because the settlement engineers provided
Englewood with a minimum, pre-reduction ten-year
delivery of 26,600 acre-feet, which exceeds W.W.
Wheeler Yield Studies' estimate of 25,970 acre-
,feet from Column B2 of Table E-1, it is necessary
to increase the below-3,000 acre-foot yields to
Englewood calculated in Col11111n B6 of Table E-2 by
the quotient of 26,600 divided by 25,970 . These,
slightly enhanced yields (Col11111n B7 of Table E-2)
provide the fina~ yields to be used to set
Denver's new and reduced delivery obligations.
The settlement engineers would reduce Denver's
minimum ten-year delivery obligation to Englewood
to 22,420 acre-feet (Column B7, Tab l e E-2).
Because the 22,420 acre-feet is in excess of the
21,000 acre-feet cited in Paragraph 6 .2.4, then in
this example, the provisions for determining
Adjustment Water in s u~paragraph 6.2.4 .3 are not
applicable.
Because the settlement engineers determined that
the minimum aMual delivery to Englewood should be
1,500 rather than 1,181 .5 acre-feet ·derived from
Column B2 of Table E-1, the settlement engineers
would prorate the ~~nimum annu al delivery,
obtaining 1,064 acre-feet (839 x l,500 )/1,181 .5 .
Because the settlement engineers determined the
two-year minimum delivery to Englewood should be
4,100 acre-feet, rather than Wheeler's 3,985.5
acre-feet derived from Column B2 of Table E-1, the
7
c.
settlement engineers would prorate the two-year
minimum delivery, obtaining 3,387 acre-feet.
4,10~(2,454 + 8381/(2,804 + 1,181.5)
Fin fll ly, the settlement engineers would calculate
the maximum annual deli"ery t:, be 2,697 acre-feet
(22,420 X J,200)/26 ,600.
Denver's "South Platte River Exchange• Delivery
obligation to Englewood (Paid Deliveries)
The .settlement engineers would prorate both the ten-year
min i mum d 'livery a~d the annual maximum based on the results
of the yield studies shown in Ct ,lunu, C2 of Tables E-1 and E-2.
The reduced t en-year minimum delivery would be 2,820 acre-feet. (1,70 7 x 3,200)/1,937 .
The reduc ed maximum annual delivery would be 617 acre-feet. (1,707 X 700 )/1,937.
8
•
•
•
•
•
IUMMARY OF CAIIN-MEADOW CREEK IYITEM YIELD ITUDIES
Conducted by W.W. WhNler and A .. oclltN, Inc. 1987 • 19711
1. Meadow Creek Reservoir u ... ble capacity • 5,340 ecr•IHI, Including capacity
reaerved for use by the Vall Ditch and excluding minimum pool requiremen11.
2. Conduit capacity:
MNdow CrNk Reurvolr to' Hurd CrNk • 25 eta
Hlad CrNk diverllan to Hamilton CrHk • 40 eta
Hamilton Creek to end • eo eta
3 . Historic: period used in the yield 11udi11 • 1952 through 1956
4 . Tabin 1 through 7 are aummaries of the physical 1v1il1blff1y of Itre1mflow for
diversion II the intake ,:~in1I , 11 limited by senior calls by the Shoshone Power
Plant (1 ,250 clal. C1UI by :he Shoshone Pawar Pllnt were 1dju91ed to account far
potential deple1l0nI by w111'r rights leniar 10 July 2. 1932, which la the date al
edministretion lllOCilled wi:h the Cabin-Meadow CrHk syllem, in UCIII al the
hlI10ric 1m0un11 . These inciuJe :
~•nd River Ditch E«ensian.
Cola,~do-Blg Thr,,npson Project
Enlargem.:,,, al Twin lakes Tunnel collection IyItem
Colorado Springs 1929 dectna al Hoosier Pass Project
Denver's Fraser Ind Williama Fork projects (including the WiRiams Fork
Extension Project)
5 . Table 8 is I summary of Strawbeny Creek flows physically and leg1ny available far
diversion by the Vail Ditch (Grand County Irrigated und Company).
6 . Table 9 is • summary of the Vail Dilch diversion requirement .
7 . Viii Ditch Is entitled 10 I llar■ge capacity of 850 ,er.feet In Meadow Creek
Re"-IIIVOir, together with the fir11 850 1Cre•leet of storable Inflow plus 30 percent
of the storable Inflow through June 30 and 111 al the Inflow beginning on July 1.
Meadow Creek diversions by the Vail Ditch are only allowed after the Grand County
Irrigated Land Campany fully utiNzea Its water right out al Strawberry Creek .
8 . The April 9, 1974 Forest Service "Revised Stipulations· for fish flows:
Little Cabin Creek • 0 .25 els
Cabin Creek• 2 .0 els
Hamiltan Creek· May 1 10 June 14 • 1.0 els; June 15 ta April 30. 1.5 els
Hurd Creek • 1.~ els
Trail Creek • 0 .25 ell
M11dow CrHk • May 1 to March 31 • 3.0 cla; April 1 ta April 30 · 1.5 eta
Meadow Creek Reservoir minimum pool • 310 acre-feet
9 . Tabin 10 through 15 are 1ummarie1 of atlmated ditch divlrlion l'9qUirlmen11 for
aenior water rightl on Ranch Creek. It WU auumecl lhlt -would be bypa111d
11 nece11■ry to meet the requirement• of theH 11nlor w1111 right1, baaed on ■n
■uumed 22 percent Irrigation efficiency.
1 o. It WU uaumed that, during the lludv parlod , the DerMw EIIChange WII not
operable under the provlalona of the 19 84 ■nd 1969 ■grNIMnll during June ■nd
July 1952 and June 1956. It WII 111o Illumed that the r,-, £xcllanQ• would
have become limited to the following monthly 11110111111 bec,uae of Moffat Tunnel
1y11em constraint ■: Augul! 1952 • 3,400 a r 1■11: Ju/'li 11153 • 500 ■ere feet :
July 1953 • 700 acre-feet: July • 1956 • 1,500 ■ct9·11'!11 .
11 . The Cyprus Climax demand Wll llaumed to be the Int 3,000 at TPl-htl't p"r year.
12. The Englewood yield under the Oenver Exchange w11 m/11"1 to tht w.:or,d 3,000
acre-feet per year.
Table 16 11 a aumm■ry of the total Cabin-Meadow Creek system yleld for 1H panies.
References to "Direct Diversions• and "Storage RIIHsu• Indicate that the water w11
del iv ered to the Moffat Tunnel for uae by Denver at times when Oenver had surplus
capacity in Its storage facllltle1 for uH of this water. "South Plane Exchange" refers to
direct diversions to the Moffat Tunnel for uae by Englewood tlvough UH of the South
Platte or Williams Fork Exchange, 11 defined in the 196-1 r g _ ·...,.nt , It times when Oenver
did not have surplus capacity in lu 1tor9g1 facilities . Tables 1 "i' through 19 are IUmflllrieS
of the individual yields to Cyprus Cliniax, Englewood , and Denver. The yield figur11 for
Cyprus Climax in Table 17 indicate tht• mo nthly amounts of watet that would have accrued
to the Cyprus (AMAX) account, not necesurily the deliveries of 11 ;,.water to the Moffat
Tunnel for use by Denver. Similarly, Table 18 also indicates ther · ~fl'\hly amounts of water
that would have accrued to the Englewood account, not nece111rily m~ deliveries of this
w■ter to the Moff■t Tunnel for use by Denver or by Englewood Yi■ the South Platte
Exchange .
2
•
•
•
C TAIL£ 1
TOTAL INFLOW TO MEADOW CREEK RESERVOIR
188 PERCENT OF MEADOW CREEK GAGEi
(Vlluu In Acfa-FNII
APR MAY JUN JUL AUG TOTAL
1952 238 2,187 8,158 887 301 8.187
1953 85 1,517 3,898 483 212 5,953
1954 0 1,790 729 0 0 2,519
1955 \77 2,320 2,073 488 152 11 ,208
1956 56 3,149 2,381 259 ... 5.845
TAIL£ 2
AVAILABLE FLOW· TRAIL CREEK
(Valua In Acre-fNtl
YEAR MAY JUN JUL AUG 19' TOTAL
1952 128 282 31 18 0 459
1953 62 187 28 18 0 291
1954 47 23 0 0 0 70
1955 74 95 28 18 0 213
1956 135 107 18 0 0 258
-
TAIL£ 3
AVAILABLE FLOW· T1IAIL CREEK TRIBUTARIES
IValua In Acfa-FN1I
YEAR MAY Jur. JUL AUG SEP T )TAL
1952 203 490 53 30 0 776
1953 105 326 44 26 0 501
1954 74 39 24 11 0 148
1955 117 166 43 2i) 0 355
1956 214 187 28 23 0 450
TAIILE4
AVAIi.AiLi FLOW· HURD CREEK
IV..,_ In Acre•fHtl
YEAR MAY JUN JUL JUL SEP TOTAL
1952 352 7112 88 !;2 0 1,284
1953 16~ 528 74 45 0 028
1954 121! 84 :n 0 0 225
1955 202 289 72 50 ,; 593
1958 37 1 302 44 0 0 717 ,_._
TABLE 15
AVAILABLEFLOW·HAMLTDNCREEI( . IVlll/a In Ac:re-FNtl '
YEAR MAY -~~ JUL AUG SEP TOTAL
1952 422 1,303 140 81 0 1,946
1953 220 866 117 70 0 1,273
1954 154 106 61 0 0 321
1955 243 441 114 78 0 876
1956 445 497 70 0 0 1,012
. --
TABLE ti
AVAILABLE FLOW· CABIN CREEK
IV..,_ In Acn-FHtl
YEAR MAY JUN JUL AUG SEP TOTAL
1952 985 3,170 332 19(1 0 4,883
1953 501 2,102 280 , 163 0 3,048
1954 352 257 131 tl5 0 805
1955 !155 1,072 271 182 0 2,080
1956 1,020 1,210 159 0 0 2,389
• TML.17
AVAIL.Aal.E FLOW· UT1ll CAIIIN CREEK
cv .... In aa.F-1
-
YEAR MAY JUN JUL AUG IEI' TOTAL
1952 1!53 313 25 18 0 509
1953 80 208 30 18 0 338
1954 68 26 6 4 0 90
19$5 88 108 29 20 0 243
1956 182 118 18 0 0 298
T.UU8
STRAWBERRY CREEK FLOWS AV."LA8LE TO VAIL DITCH
IVllu• In aa.F-1
YEAR IU,Y JUN JUL AUG SEP TOTAL • 1952 441 11118 88 0 0 1,635
1953 150 188 0 0 0 348
1054 85 0 0 0 0 85
1955 837 0 0 0 0 I 837
1i;j56 847 0 0 0 0 847
TAIi.i 11
VAIL DITCH REQUIREMENT
IVllu•ln~I
YEAR MAY JUN JUL AUG SEP TOTAL
1952 328 1,407 737 328 415 3,215
1953 328 1,407 737 328 415 3,215
1954 328 1,407 737 328 415 3,215
1955 328 1,407 737 328 415 3,21 5 • 1956 328 1,407 737 328 415 3,215
rAGI J 0, I
TAILE 10
. HUll0 DITCH IIEQUIIIEMENT
IValun In Acre •fNtl
YEAR MAY JUN JUL AUG IIP TOTAL
19!i?. 0 110 182 90 0 342 --· ,..2!~ 0 44 78 112 0 234
t !H ! 0 134 124 58 0 3 14
"."'"".l 0 18 124 88 0 209 --·-··
1956 0 90 100 0 0 190
TAILE 11
AXEL DITCH REQU IREMENT
IVakln In Acre.fntl
YEAR MAY JUN JUL AUG tEP TOTAL
1952 0 38 88 38 0 138
1953 0 18 32 46 0 98
1954 0 58 50 24 0 130
1955 0 8 50 28 0 84
1956 0 38 42 0 0 98
TABLE 12
DIAMOND-T DITCH REQUIREMENT
IVakln In Acn-Fntl
YEAR MAY JUN JUL AUG SEP TOTAL
1952 ·o 66 118 66 0 250
1953 0 48 84 120 0 252
1954 0 75 88 30 0 342
1955 0 18 132 72 0 284
1956 0 48 108 54 0 258
TMLI 13
FUWRTON-KLEIN DITCH 11£QUIRIMENT
(Valun In Acre-fNtl
Y~AR MAY JUN JUL AUG IEP TOTAL
1952 32 58 32 0 0 120
1953 0 18 21 40 0 84
1954 0 48 0 20 0 Ill
1955 0 I 44 24 0 74
1956 0 32 38 18 0 18
TAILE 14
HARTSHORN DITCH IIEQUIREMENT
(Vak.ln In Ain-fNtl
YEAR MAY JUN JUL AUG SEP TOTAL
1952 0 30 52 30 0 112
1953 0 14 28 38 0 78
1954 0 44 40 18 0 102
1955 0 8 40 22 0 Ill
1956 0 30 34 0 0 64
TAILE 111
FULLERTON NOS . 2 • 3, GRAMTE, • CABIN CREEK DITCH IIEQUIREMENT
IV.,n In Acre•FNtl
YEAR MAY JUN JUL AUG SEP TOTAL
1952 0 114 204 114 0 432
195 3 0 158 100 140 0 2.98
1954 0 170 154 70 0 394
1955 0 20 154 84 0 288
1956 0 114 128 0 0 242
TABLE 18
TOT.\L CABIN-MEADOW CREEK SYSTtM YIELD • ALL PART1£S
IValun In Ac:N-Fffll -MAY -JUI. AUG -OCT TOTAL
1112
Dnctotv ....... 2,129 0 0 2&3 0 0 3 .171
s 1oraoe" ....... 0 0 0 1.•11 1.480 , .... ,.,eo
South Piette ExchlnOe 0 3 .170 111 0 0 0 4.081
TOTAL 2.,2• 3.170 111 1.704 1.490 1.141 11 .714
1113 Dnct-1.N7 liOO 411 111 0 0 3,037
S1oreva"......_ 0 0 211 1.,a1 907 0 2.1"1
South Plan ■ b :~ 0 3,070 0 0 0 0 :),01':)
TOTAL 1,N7 3.170 700 1,8 3A 107 0 1,8 7 0
' 1114 Dnct-1.11 , 111 0 0 0 0 2 ,383
Blo,ege!IWeNN 0 0 0 0 0 0 0
South P'teH■ &:c:henge 0 0 0 0 0 Q 0
TOTAL 1,112 181 0 0 0 0 2 ,3113
1181 Dnct-2,272 2,HO 311 211 0 0 1 .....
s1orege......._ 0 0 1,111 0 0 0 t ,111
South Pltin• Exct.nge 0 0 0 0 0 0 0
TOTAi. 2,272 2 .NO 1.113 211 0 0 ......
•1ae Dnct-3 ,013 0 170 0 0 0 I 3.113 ............... 0 0 t ,3JO 1,140 '°" 0 3,371
South Plett■ Exchalga 0 2 ,831 0 0 ., 0 2,113 1
TOTAi. 3,013 2 .131 1,IIOO . 1.140 IOI 0 8,093
AVERAGE l Dnct-2.338 N2 117 121 C, I C, 3 ,122 ............... 0 0 ... ... H I 310 2 ,312 --..1x-.. 0 1,IM 101 0 0 0 1,131
TOTAi. 2.,. 2 .IN ... 1,020 181 110 7.771
• • •
-. l ~ § § ii !! ~ • e .. .; N ..
i 8 0 0 0 0 0 0
i
0 Ill o 0 0 0 0 0 ..
j •
c_ ~it ! 0 0 0 0 0 0
C
•!c fl!• ... I ~ 0
0 0 0 0 0 ,~
• g
:I ! 0 .. -~ 0 i •
•
.. .. ., 0. ..
u
!
I ► • . ... l § a § 35 .. .. ... .; N ft N
..
e i ! i .... " .... : ~ ~ ~
C
TAaa' 18
ES11MATED CA ...... EADOW Cll&ll SYSTEM 1'IR.D AVAIL.Aki: TO OIOlEWOOO
JAU.-..a MAJmlllal USE Of WATIII IY C't'PIIUS CUIIAX) "'_., __ , -MAY J ... JUI. AUG SEP OCT TOTAL
1862
DirKI o.w. Exc:t.noe 431 0 0 0 0 0 439
S.cw ... •0...-E.■ct-.. 0 0 0 9Ja 1,490 IU 2,HI
sue TOTAL 431 0 0 .,. 1,490 U3 J,000 --•Ex-0 3 ,170 111 0 0 0 4 .081
TOTAL 438 3,170 115 831 1,480 U3 1,oaa
1863
Direct o.w .. &ct.noe 315 411 I OI 0 0 0 ... St---Ex-0 0 0 ■le 907 0 1.723
sue TOTAL 311 4 111 161 819 907 0 2,901
South Platt♦ bchangil 0 3,070 0 0 G 0 3,070
TOTAL :ii~ 3 .419 151 119 107 0 6 ,971
1864
DwKto.n.wEx-o · 0 0 0 0 0 0
StON91 . Dem,•~ 0 0 0 0 0 0 0
sue TO TAL 0 0 0 0 0 0 0
South Plllue bchen,. 0 0 0 0 0 0 0
TOTAL 0 0 0 0 0 0 0
1866 --Ex.._ 0 2 ,701 0 0 0 0 2,701
s1or ... -O-W-r•Cft1111811 0 0 2n 0 0 0 2N
SU.:TOTAL 0 2,701 2" 0 0 0 J ,000 --•Ex-0 0 0 0 0 0 0
TOTAL 0 2 ,701 2" 0 0 0 J,000
IIIH --&-..,. 1,111 0 21 0 0 0 1.143
ltor .... 0-W• lb .... 0 0 2H 1,MO •• 0 1,H7
1119 TOTAL 1,111 0 2H I.MO •• 0 1,000
--•bchonao 0 2.131 0 0 0 0 2.UI
TOTAL 1,111 2,131 211 1,140 .. 0 •.~•·
-b--A-374 924 141 .,. 477 27 2 .322 ...... "-"• ........ 0 1,13-4 103 0 0 0 1.837
14•• ... · lloth Sourcw 374 2 .418 244 .,. 477 27 4 .21• .. • • •
•• ~ • 0 o I :ii = ! 00 II
1-.. II 0 0 0 0 II d I! ; N
ii lb o 0 0 0 0 : N
CIC
.. ..
•
r J
=III ! ., 0 0 ~ o I C ~
i!i· .. ~ I •c .. 0 0 0 ,o N ... u~ ::, ....... ., ... --
• ! g!
h ! 0 0 0 0 0 O
u .,
u ca ~ 0 0 0 0 0 O !-• :I
..
e N ., : : i ; ....
~ ~ ~ ~ -!!! C
•
STRUCTURE
Gervens No . 1 Ditch
Gervens No . 2 Ditch
Lost Cree k Ditch
Ge rv ens No . 2 Ditch
John Shore Ditch
8 .W . Field M ule Creek
No . 1 Ditch
J ohn Shore No . l
Ditch
Burt cher Ditch
8 .W. Field M ule Creek
No . 2 Dit ch
F .A . Field Ditch
Scholl Ditch
Wi\li 1m 1 Oilch
Skv lark Ruervou
Mc:Candli n Ditch
Nonh Sk yl ark Ditch ,
South S kyl1rlt Dit ch
IXHIIIT F
lltYU.1111 IIANCH WATIII IIIOHTI
APPAOPRIA TION
CATE
09·02·1 t 0 2
09·30·1904
08·18 ·1908
08,30·1904
10·01 ·1BBB
05,31 -1889
08·30·1890
12 ·31 , 1897
07-15-1908
AOJUDICATIDN
DATE
WATER RIGHTS ON LOST CIIEEK
0B-03 ·18\ 1
0B-03 ·1811
08·03-1911
03-18-1918
WATER RIGHTI ON MUU CIIEEK
09·03·1911
08-03-1911
08,'3 ·1911
08·03-1911
08·03-1911
ADMI N.
NUMBER
20979.18145
20979.11189
21443 .00000
23454.19119
2(1971 .14154
20871.14398
20878.1~791
20978.17532
21 ~B0 .00000
WATER RIGHTS ON SK YLARK CREEK
05-15 •1888 08-03·1908 14380.00000
12·01 ·1837 08·03·1911 20979.13849
05·20·1888 0S-03-1911 20179.140 20
12 ·31 -1903 08-03-1911 20179.19722
07•26 ·19 17 07-12·1919 24994.24878
0 6·01 -19 13 10-28-1955 34241.2~162
08·0 1·1949 10·28·1955 39372 .000J0
P1g ,;l '2
DECREED
AMOUNT
2 .000 ell
1 .375 cf a
1.000 cf1
1.125 cfa
2 .5 cf,
2 .5 ct,
2 .0 cf,
2 .5 ch
1.0 cf1
3 .25 cf,
1.50 ct,
3 .00 cf,
12 .23AF ,
1.50 ct,
3 .00 el s
1.50 cf1
•
l -
•
WATIII IUCIHTI ON IATTll Cll&K
-► unvt,o1e n 14 Ditch 09-30-1889 08-03-1911 20878.14518 1.125 ct,
l.angholt n 13 Ditch 07-30-1889 08-03 -1911 20978.14518 1,125 .11
l.angholen 12 Ditch 07-01-1 8 90 08-03-1111 20978.14792 1.250 cf1
l.angholen II D',tch 07 -31 -1890 08-03 -19 11 20878.14822 1.250 cf1
Sho<e II Di tch 08-20-1898 08-03 -1911 20878.17764 2.000 cfl
Sho<e 1 2 6 13 Dtt ch 04-20-1908 08-03 -1911 21294.00000 2.000 cfl
' Beuhler • 1 Ditch 12-31-1905 08-11-1917 23817 ,20453 ,l500
8euhler 12 Ditch 12-31-1913 08 -11-1917 23817.23375 ,l500
Bel.Her 1 3 Ditch 12-31 -191 3 08-11-1917 23817.23375 .l500
Be uhler 1 4 Ditch 12 -3 1-1913 08-11 -1917 23817 .23375 .500
•
• 1'1111 2 c 1 2
STRUCTURE
Gerven1 No. 1 Ditch
Gerven1 No. 2 Ditch
lost Creek Ditch
Gervens No. 2 Ditch
John Shore Ditch
B.W . Field ~ ule Creek
No . 1 Ditch
John Shore No . 1
Dil ch
Burtcher Ditch
8 .W. Field Mute Creek
No . 2 Ditch
F .A . Field Ditch
Scholl Ditch
W illiams Ditch
Skylark Reservoir
McCandl in Ditc h
Nonh Skylark Oitch
South Sk ylark Dit cti
l»alTF
lltYLAIUt MNCtl WATIII IIIOHTI
APPAOPRIA TION
DATE
()f.-02-1902
09-30-1904
09-18-1908
09·30-1904
10-01 -1888
05-31 -1889
08-30-1890
12-31-1897
07-15-1908
ADJUDICATION
DATE
WATIII IIIGHTI ON LOIT Cll<
01-03-1911
01-03-1911
01-03-1911
03-11-1918
WA T£R RIGHTS ON MULE CREEK
08-03-1911
08-03-1911
08-03-1911
3-03-1911
08-03-1911
ADMIN .
NUMBER
20971.11145
20978.19198
21443.00000
23454.19918
20876 .14154
20876.14398
20178.14791
20876.17532
21380.00000
WATtR RIGHTS ON lltYLAIUt CRE£1t
05-15 -1889 08-03-1908 14380.00000
12 -01 -1887 08-03-1911 20876.13849
05-20·1 BBB 08-03-1911 20878.14020
12-31-1903 08-03-1911 20878.19722
07-28-1917 07-12-1919 24194 .24878
08-01-1913 10-28-1955 34241.23182
08-01 -1949 10-28-1955 38)72 .00000
P19t11 at:
DECREED
AMOUNT
2 .000 ct,
1 .375 ct,
1.000 ct,
1 .125ct1
2 .5 ct,
2 .5 ct,
2 .0 ct■
2 .5 ct,
1.0 ct,
3 .25 ct,
1.50 eta
3.00 cfs
12 .23 AF
1.50 cl ■
3 .00 ct,
1.50 ct,
•
1•
•
• WA TIii IIICIHTI ON IA TTI.E CIIIEK
Lln9holen 14 Ditch 09·3"·1889 08-03-1911 20871 .16618 1,125cfl
l.anQholen •3 Ditch 07 -30-1 889 08-03-1911 20878.14518 1.125 cf■
Langholen 12 Ditch 07-01 -1890 01-03·1911 20871,14712 1.21o·c1,
Langholen 11 Ditch 07-31 -1890 08-03-1911 Z01178 .148ZZ 1.2&0 cf■
ShOft: 11 Ditch 08·20-1198 08-03·1911 ZOC78 .17714 2.000 cfl
Shott 12 & 13 Dach 04 -20-1908 08-03-1911 21294 .00000 2.000 cf ■
k uhl er • 1 Ditch 12-31-1905 08-11-1917 23811 .20453 .500
Beuhler 12 Cite(, 12·31-1913 08-11-1917 23117.23375 ,500
leuhler I 3 Ditch 12-31-1913 08-11-1917 23817.23375 .500
8e-uhl er 14 Ditch 12 -31-1913 08-11-1917 23817 .23375 .500
•
• Page 2 of 2
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COUNCIL COMMUNICATION
Date Agenda Item , Subject
August 21 , 1995 Englewood -Denver -Cyprus
10 a i V Settlement Agreement on the·
Cabin-Meadow Creek Svstem
Initiated By I Stewart Fonda
Staff Source
Wa ter and Sewer Board
RECOMMENDED ACTION
Co unci l approval by ordi nance of the attached settlement agreement by and betwoen the
De nv er Water Dep artm ent, the City of Eng lewood and Cyprus Cl imax Metals Company .
PREVIOUS COUNCIL ACTION
.enver -Englewood Water Exchange Agreement dated March 17, 1964 and Denver ,
Engl e\l.OOd , Cyprus Agreement dated September 2, 1969.
BACKGROUND , ANALYSIS, AND ALTERNATIVES IDENTIFIED
See attachment s 2 and 3.
LIST OF ATTACHMENTS
1. Se ttl ement agreement s
2. High po ints of the Englewood -De nver -Cyprus Agreement on the Englewood Cab in-
Mea dow Cree k System
3 Ou tlin e of Englewood -De nver -Cyp ru s Agree men t
•