HomeMy WebLinkAboutC05-044 Buchholz
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AGREEMENT ->
EAGLE COUNTY-BUCHHOLZ ~
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This Agreement is made and entered into this ~day of JjmUary 2005 by and between q- ~ ~ s
the County of Eagle, body corporate and politic, by and through its Board of County m Qi ~ 0
Commissioners, whose address is 500 Broadway, Eagle, Colorado, 81631 (hereinafter ((County") ~:: ;;;
arid Mary Lynn Buchholz, Winfrey, JoAnn Buchholz Cramer, Jeannette Marie Buchholz 0.. (g s
Stockel, John T Buchholz, whose address is c/o John T. Buchholz, PO Box 3762, Carefree, :
Arizo~a. 85377 (hereinafter ('Buchholz"), and the Town of Eagle, whose address is 108 W 0::
Second Street, PO Box 609, Eagle, Colorado, 81631(hereinafter "Town").
WHEREAS, Buchholz owns land which is described in Exhibit ((A," located within the ~
Town of Eagle, County of Eagle, Colorado, and along with and app1U1enant to said land
Buchholz owns 0.045 cfs of water decreed to the Ditch No.1 ditch adjudicated in Case No. 294 8
on 12/17/1889 appropriation date 4/1/1887 and Case No. 963 adjudicated on 10/3/1936 with ,p
9/111923 appropriation date, and the rest of the right is owned by others. ~
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WHEREAS, the County of Eagle owns water rights originally adjudicated to the Neilson 2
South Ditch adjudicated in Case No. 294 on 12/17/1889 with appropriation date of 4/29/1884, ~
and subsequent adjudications in Case No. 385 on 3/5/1901 with appropriation dates of 9/20/1889 in
and 5/15/1897, and in Case No. 945 adjudicated on 8/2/1934 with appropriation date of ;
5/6/1914, and (!l.
WHEREAS, the Town of Eagle has an interest in ensuring that the water rights
adjudicated to the Ditch No.1 ditch owned by Buchholz are transferred to the Neilson South
Ditch and preserved for later possible dedication to the Town, and
WHEREAS, an application has been filed by Buchholz in the Water Court for Division
No.5, <;ase No. 03CW311, requesting that the Buchholz water rights adjudicated to the Ditch
No.1 structure be transferred to the Neilson South Ditch (referred to herein as "Subject Water
Rights''), and
WHEREAS, the COWlty of Eagle filed a Statement of Opposition to the Application in
Case No. 03CW311, and
WHEREAS, it is in all parties' best interests to resolve Case No. 03CW311 by entering
into this Agreement and setting forth the parties' rights and obligations concerning the use,
operation. maintenance. repair, and replacement of the Neilson South Ditch and the use of the
Subject Water Rights.
NOW THEREFORE, in light of the above-named consideration and for other
consideration not herein named, the parties agree as follows:
1. Sti~ulation anq A~ment. The County agrees that it has entered in to a Stipulation and
Agreement with Buchholz in Case No. 03CW311, of even date herewith, which references this
Agreement as if fully set forth therein. consenting to entry of a decree by the Water Court
approving the change of point of diversion for the Subject Water Rights from the bitch No. 1
structure to the Neilson South Ditch, subject to the terms and conditions of this agreement.
2. Consent to Chan~e in point of Pi version. Buchholz and the County agree that the decree
in Case No. 03CW311 shall change the point of diversion of 0.045 cubic feet per second of
water rights owned by Buchholz from the Ditch No. 1 headgate on the Eagle River to the point
of diversion of the Neilson South Ditch, also diverting from the Eagle River.
3. Ri~t to Divert Water. Between May 1 through September 30 each year, Buchholz shall
have the right to carry 0,045 cubic feet per second (20 gallons per minute) of water through the
Neilson South Ditch to the end point at which the Neilson South Ditch crosses Buchholz's
property, as described above. Buchholz shall install and maintain, at their sole cost and expense,
a pump in the existing Neilson South Ditch structure. This pump shall have a pumping capacity
that is limited to no more than 20 gallons per minute. Buchholz's Subject Water Rights shall be
subordinate to the County's Neilson South Ditch water rights, described above~ and the rights of
others in the ditch and Buchholz shall not impede the flow of the Ditch with its diversion
facilities or dispossess the County or others of any capacity in the Neilson South Ditch.
4. Operation. Maintenance. and Repair of Ditch. Buchholz shall have no right to operate,
maintain, access, control, repair, or replace any portion of the Neilson South Ditch and/or its
headgate. As between these parties, the County will have the exclusive right to control, operate,
maintain.; repair, and replace the headgate, measuring devices, and ditch structure of the Neilson
South Ditch as it has done historically and shall have access to the Buchholz diversion area of
the ditch for such purposes. Such operation, m.aintenance, repair, and replacement is adequate to
allow Buchholz to use the ditch without any additional operation, m.aintenance, repair, and
replacement. In the event the County fails to operate, maintain, repair, and replace such ditch
structure within 15 days after notice has been provided by Buchholz to the County, consistent
with the tenns of paragraph 9, belQw, that the ditch is in disrepair and Buchholz cannot receive
their water, Buchholz may make such repairs are necessary to resume the delivery of their water.
5. Annual Fee fOr Maintenance. Operation. and Repair of DitS?b, Buchholz shall pay $400
on or before March 15 of each year for their share of operation, maintenance, repair and
replacement costs of the Neilson South Ditch. ID. the event tbat Buchholz does not pay by March
15, interest in the amount of One and one-half (l~) percent per month shall accrue on all unpaid
balances, until the outstanding principal and accrued interest is paid in full. In the event that
payment by Buchholz becomes more than 30 days overdue, the County, upon notice to
Buchholz, consistent with the terms of paragraph 9, below, can cease deliveries of water to
Buchholz and remove the pump, Buchholz shall not be entitled to reinstall the pump and
resume diversions of the Subject Water Rights from the Neilson South Ditch until the
outstanding principal and accrued interest is paid in full. The amount of the Buchholz payment
shall be increased every three years on the anniversary date of this agreement based upon the
change in the Consumer Price Index All Urban Consumers Western Region (Average for All
Items Index 1982-84""'100) published by the Bureau of Labor Statistics of the United States
Department of Labor, and based upon an initial CPI number as publiShed by that Bureau of
195.0 for the month of October 2004.
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6. Ri~ht to Tenninate by Buchholz. Buchholz shall have the right to tenninate this
Agreement and permanently cease to divert water from the Neilson South Ditch structure by
providing notice to the County~ consistent with the teons of paragraph 9) below or by filing an
application with the Water Court for Division No.5) seeking to change the point of diversion or
place of use for the Subject Water Rights. Buchholz shall give the County prompt notice of any
application filed in Water Court pertaining to the Subject Water Rights. In the event Buchholz
seeks to transfer the subject water rights out of the Neilson South Ditch, the County agrees that it
will not oppose such transfer and will not seek to assess ditch losses or other costs or fees as
against Buchholz.
7. Ri2'ht to Terminate by County. The COWlty shall have the right to tenninate this
agreement upon the Application of Buchholz for approval to transfer the Subject Water Rights to
a new point of diversion or new place of use. The County may also terminate this Agreement
upon Buchholz obtaining approval of a land use development proposal from the Town of Eagle
for the land' irrigated with the Subject Water Rights. The Town of Eagle and Buchholz shall
provide prompt notice to the County in the event of any land use development applications or
approvals for the land irrigated with the Subject Water Rights. The Town agrees that in any
development approvals rendered to Buchholz, it will not require Buchholz to continue to inigate
the property with water diverted through the Neilson South Ditch structure.
8. Automatic T:ennination. This agreement shall autoJt1atically tenninate and be void upon
transfer of the Subject Water Rights by Buchholz separate and apart from the land inigated with
the Subject Water Rights, as described above, or when a final decree is issued by the Water
Court, Water Division No.5, transferring the point of diversion of the Subject Water Rights out
of the Neilson South Ditch, or quantifying all consumptive use associated therewith. Buchholz
shall provide the COWlty with notice of any of the aforementioned events. Upon entry of a final
decree issued by the Water Court so changing the point of diversion or quantifYing the
consumptive. use for the entire water right owned by Buchholz, as described herein, any party
hereto may record said decree which decree shall operate to tenninate all portions of this
Agreement.
9. . Financial Obligations. The financial obligations of the COWlty in regard to the operation
and maintenance of the Neilson South Ditch are contingent upon the CoWlty~S budgeting and
appropriation of funds for such purposes in accordance with Colorado Law.
10. Notice. All notices required und this Agreement shall be writing and shall be hand
delivered or sent y registered or certified mail. return receipt requested, postae prepaid) to the
addresses of the parties set forth below. All notices so given shall be considered effective three
days after deposited in the U.S. Mail to the addresses below. The Parties shall provide notice to
the other parties of any change of address within 30 days.
COWlty of Eagle: Board of County Commissioners for Eagle County
500 Broadway
Eagle, Colorado, 81631
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With a copy to: Eagle County Attorney
500 Broadway
Eagle, Colorado 81631
Town of Eagle: Town of Eagle
108 W Second Street
PO Box 609,
Eagle, Colorado, 81631
With a copy to: Sherry Caloia
Caloia, Houpt & Hamilton, P.C.
1204 Grand Ave.
Glenwood Springs. CO 81601
. Buchholz: . c/o John T. Buchholz
POBox 3762
Carefree, Arizona. 85377
10. Town Change ofSubiect Water Rights. In the event that the Town of Eagle acquires the
Buchholz Subject Water Rights changed in Case No. 03CW311, . the County agrees that it will
not oppose an application to transfer these water rights to a point of diversion owned by the
Town of Eagle. Additionally, the County agrees not to ask the Town for ditch losses or other
fees that may be assessed for said change of water rights.
.11. Runs with the Land. This agreement shall be recorded with the Eagle County Clerk and
Recorder and the rights and obligations of Buchholz pursuant to this agreement shall not be
transferred separate and apart from said Property. In the event of a transfer of Buchholz's
property, the successor owner shall automatically be deemed a party to this Agreement in place
of said predecessor party, at the time of acceptance of a deed to said Property.
12. Authonza..tion. By executing this Agreement, the parties aclmowIedge and represent to
one another that all procedures necessary to validly contract and execute this Agreement have
been performed and that the persons signing for each party have been duly authorized to do so,
13, JurisdiCtion and Venue. Any action initiated to enforce the terms of this Agreement shall
be filed in the County or District Court of Eagle County.
14. Entire A~eemeIlt. This Agreement and the Stipulation and Agreement in Case No.
03CW311, of even date herewith, contains the entire agreement of the parties concerning the
subject matter herein and supersedes all prior agreements, if any.
15. Attorney Fees. In the event that either party is reasonably required to utilize the services
of any attorney to initiate litigation and enforce any provision hereof, then the substantially
prevailing party in such. litigation, whether the party initiating litigation or otherwise, shall be
entitled to recover his or her reasonable attorney fees, court costs and all costs of such litigation.
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STATE OF ~1o(If'p )
)5$
COUNTY OF 'J)~Hle(' )
This document was acknowledged before me on this C. day of 'Cf)ee-.
2004 by Jeannette Marie Boohhob Stodel.
Witness my hand and official seal: My commission expires: r... .zf-bt,
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.........................................
STATE OF f\r;~ " )
COUNTY O~ c..e>>~ )ss
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This document was acknowledjed before m~
2004 by John T Buchholz.
Witness my hand and official seal: My co
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STATE OF ~ CtJlorAd?J )
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COUNTY OF ~/Je('" )
This document was acknowledged before me on this ~ day of 1)eb
2004 by Mary Lynn Buchholz Winfrey ,
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Witness my hand and official seal: My commission expires: JE~RILYN PEEBLES
Notary public
state of Colorado
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IN WITNESS WHBREO'F. the parties have executed this agreement on the date first
written above.
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.r(>n Sta. ey .~_/
Mayn( Town of Eagle
STATE OF COLoRADO )
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COUNTY OF EAGLE )
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. f: ~.9>L/~ This document was acknowledged before me on this
2~ on Stavney as Mayor of the Town of Eagle.
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tness my hand and official seal: MV.commission ex~es;
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1 Buchholz Cramer
STATE OF ~/o(lJtI )
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COUNTY OF JJeM., CI' )
This document was acknowledged before me on this fjf"- day of _::D ec, 2004
by JoAnn Buchholz Cramer.
Witness my hand and official seal: I.J. JERRILYN PEEBLES
My commission expires: r -;z'I-o.,. Notary Public:
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~m Stene Chairman ,
v;.f,?Jf.7JJ .W r'/v t! t:7// I
Eagle County Board of County
Commissioners ,
STATE OF COLORADO )
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COUNTY OF EAGLE )
This document was acknowledged before me on this ~ day of CfieJeVII-L; 2~
by ~m Stone-, Chainnan, .Eagle County Board of County Conunissioners
RR/J 7J1 '/Jlt'.lI/diYM'i
Witness my hand and official seal: My conunission expires: e:2. -8' -d f,
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NOrflvPU8UC
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AGREEMENT
EAGLE COUNTY - BUCHHOLZ
Exhibit A
A certain tract or parcel of land in the Southwest Corner of the
Northwest quarter ofthe Northeast quarter (NW1I4NE1/4) of Section
Five (5), in Township Five (5) south, Range Eighty-four (84) West of
the Sixth (6th) Principal Meridian, Colorado, bounded and more
proticularly described as follows: Beginning at the Southwest corner
of said Northwest qualter of the northeast quarter (NWl/4NE1/4) of
said Section Five (5); thence East, one hundred and thirty-two (132)
feet; thence North on line parallel to the west boundary line of said
NOlthwest quarter of the Northeast quarter (NWl/4NE1/4) of said
Section Five (5), seven hundred (700) feet to State Highway No.4,
fomlerly the County Road; thence along the line of said State
Highway No.4, nearly Southwest, one hundred and ninety-three
(193) feet to the West line of said Northwest quroter ofthe Northeast
quarter (NWl/4NE1/4) of said Section Five (5); six hundred and ten
(610) feet to the point of beginning, containing 1.98 acres, more or
less. Less .071 acres of land, conveyed to the Town of Eagle,
recorded in Book 116, Page 460 of the records of the County of
Eagle, State of Colorado, in the Town of Eagle, formerly known as
the Town of McDonald, in the County of Eagle and State of
Colorado.
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OFFICE OFTHE
COUNTY ATTORNEY
(970) 328-8685
FAX: (970) 328-8699
www.eag1ecounty.us
EAGLE COUNlY
March 3, 2005
John T. Buchholz
P.O. Box 3762
Carefree, Arizona 85377
Dear Mr. Buchholz:
Enclosed for your records is a copy of the Agreernent between Eagle County, Town of
Eagle and the Buchholzes.
Please do not hesitate to contact me if you have any questions.
V": truly yours, , iv
1 ~~
County r~~;1l0
DHM:pn
Enclosures
Eagle County Building, 500 Broadway, P.O. Box 850, Eagle. Colorado 81631-0850
OFFICE OFTHE
COUNTY ATTORNEY
(970) 328-8685
FAX: (970) 328-8699
www.eaglecounty.us
EAGLE COUNlY
March 3, 2005
Ms. Sherry Caloia
Caloia, Houpt & Hamilton, P.c.
1204 Grand Avenue
Glenwood Springs, CO 80903
Dear Ms. Caloia:
Enclosed for your records is a copy of the Agreernent between Eagle County, Town of
Eagle and the Buchholzes.
Please do not hesitate to contact me if you have any questions.
-i Uul~OillS~i~
fill a 'ello
County A to ey
DHM:pn
Enclosures
Eagle County Building, 500 Broadway, P.O. Box 850, Eagle, Colorado 81631-0850
OFFICE OF THE
COUNTY ATTORNEY
(970) 328-8685
FAX: (970) 328-8699
www.eaglecounty.us
EAGLE COUNTY
March 3, 2005
David Hallford
Balcomb & Green, P.C.
818 Colorado A veunue
Glenwood Springs, CO 80903
Dear David:
Enclosed for your records is a recorded copy ofthe Agreernent between Eagle County,
Town of Eagle and the Buchholzes.
Please do not hesitate to contact me if you have any questions.
i5;i~~k
County A 0 ey
DHM:pn
Enclosures
Eagle County Building. 500 Broadway. P.O. Box 850, Eagle. Colorado 81631-0850
