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HomeMy WebLinkAboutC05-045 Berry Creek LLC and Miller Ranch Property Owners Association 111I11I111I11II111111\llllllllt~;t?~1~ . 39P r! t/S-I) 'IS - / t) Teak J Simonton Eagle, CO 23 R 0,00 D 0.00 IRRIGATION POND USE AGREEMENT BETWEEN EAGLE COUNTY AND BERRY CREEK LIMITED LIABILITY CO. AND MILLER RANCH PROPERTY OWNERS ASSOCIATION THIS AGREEMENT is made effective as of FebruaJ/ I, 2005, by and between THE CO U~7Y OF EAGLE, a body politic and corporate, organL ed and existing under the laws of the State of Colorado (hereinafter "County") and BERRY CREEK LIMITED LIABILITY CO., a Colorado limited liability company and the MILLER RANCH PROPERTY OWNERS ASSOCIATION (" Associationlf) (collectively hereinafter "Berry Creek"). Recitals A. The County co-owns and uses the Howard Ditch (hereinafter "Ditch"), located generally in portions of Section 3, 4, and 5, Township 5 South, Range 82 West, 6th P.M., Eagle County, Colorado, and depicted on Exhibit A hereto. The Ditch diverts water from the Eagle River and conveys and delivers water to the County and other parties who have historically used water from the Ditch to irrigate lands that are now within a Planned Urdt Development commonly referred to as the Berry Creek/Miller Ranch Project and referred to herein as the "POO." The final plat for the POO is recorded at Reception No. 799649 of the records of Eagle County, Colorado. B. The Parties hereto each are responsible for the development of separate portions of the PUD and in cOlmection therewith require water for irrigation within the areas for which they are responsible. The irrigation supply for Berry Creek will be provided partially from the potable water supply provided by the Upper Eagle Regional Water Authority pursuant to a Water Rights Agreement made between-lhat Authority and the County and other parties, dated September 16, 2003. That Agreement contains limitations on the amount of acreage that can be irrigated with potable water, and Berry Creek is limited under that Agreement to the irrigation of no more than 6.26 -1- acres with potable water pursuant to the water supply to be obtained from the Authority pursuant to taps acquired by Berry Creek. C. Colorado Mountain College (" CMC") presently leases Tract A, Berry Creek,IMiller Ranch PUD, according to the plat recorded June 25, 2002 at Reception No. 799649, County of Eagle, State of Colorado from the Partnership for Education ("Partnership"), a separate legal entity formed pursuant to Section 29-1-201/ CR.S. by Eagle County and the Eagle County School District RE-50J ("School District/'). Pursuant to the lease between CMC and the Partnership I which is recorded in the real property records of Eagle County at Reception No. 808445, CMC constructed an all purpose academic facility on Tract A and may receive a raw water supply from the County and School District for use thereon. D. The County has constmcted at its cost a storage pond ("Pond") and a pump and pipeline system to deliver water from the Pond under pressure to the Parties ("Delivery System"). The County has applied to the Colorado Water Court to confirm rights to store water in the Pond for the uses anticipated in this Agreement and other County uses. E. The Pond is located on the County's property as shown on Exhibit B. The Delivery System is located substantially on the County's property but partially on Partnership's property, which is presently leased to CMC and which may be conveyed to CMC, as shown on Exhibit B. F. The Pond will receive water from: (a) the County's existing and future water rights delivered through the Howard Ditch to the Pond for distribution to the Parties; (b) raw water delivered to the County by the Eagle River \Vater & Sanitation District; and (c) otDer water supplies which the County may acquire for such purpose. -2- G. The Pond has a capacity of 22.2 acre feet of operational storage capacity with an additiona19.04 acre feet of storm water detention capadty. The Pond's operational capacity will be used for the water supply that is the subject of this Agreement. The storm water detention capacity will not and cannot be used to provide storage water supply because it is designed only to temporarily detain excess storm waters which will automatically drain from the Pond pursuant to its design. H. The Parties desire to set forth the terms and conditions concerning the use, operation, maintenance and repair of the Pond and Delivery System. NOW THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the suffidency of which is hereby acknowledged, the Parties agree as follows: Agreements 1. Recitals Incorporated. The above Recitals are true and correct and are incorporated into this Agreement. 2. Use and Operation of the Pond and Delivery System. A. Berry Creek is allocated the right to access the Delivery System to withdraw water from the Pond in the following maximum amounts on an annual (calendar year) volumetric basis and flow-rate basis and for use on the following maximum acreage, subject to limitations and conditions set forth in this Agreement: Acre F eetl Acre Annual Volume Flow Rate IvIaximum (acre feet) (gallons per minute) Acres Irrigated . 2.3 10.8 125 4.7 -3- The flow rate established for Berry Creek is based upon the irrigation system design prepared for the County. The annual maximum volume of use is based upon a maximum water requirement of 2.3 AF per acre and an 80 percent irrigation application efficiency. B. The County plans to operate the Pond and Delivery System for irrigation supply from April 1 through October 31, subject to weather conditions limitin.g that season of operation. The County will give Berry Creek notice of the dates upon which the use of the Delivery System may commence and shall terminate if such dates are other than stated above; provided, however, that such dates shall not be changed except for good cause. The County also shall give such notices in the event that any maintenance or repair operations will interrupt deliveries during the operational season. C. The use of water withdrawn from the Pond by Berry Creek will be limited to irrigation within the acreage for which it is responsible within PUD Tract D as shown on Exhibit A attached hereto and incorporated herein by this reference. The Berry Creek irrigation with Pond water supply shall not exceed 4.7 acres of land. Berry Creek agrees that it will implement rules and regulations, pursuant to the Master Declaration from Miller Ranch, subject to prior review and approval by the County of such rules and regulations and any amendments thereof necessary for it to comply with the limitations on irrigation from both the potable and raw water systems that will supply the Berry Creek Tract D. D. The Parties shall be individually and separately responsible for the construction, operation, maintenance and repair of the facilities required to connect to and deliver water from the Delivery System to their respective irrigation uses. For purposes of such responsibility, the point of connection from which Berry Creek shall be responsible -4- the point of connection from which Berry Creek shall be responsible shall be at and including the meter required for their deliveries. Berry Creek shall submit its plans for connection to the Delivery System and its irrigation system to the County for review and approval at least 30 days prior to making contractual commitments for installation of those systems. The County shall indicate within 30 days of receipt of such plans what modifications it requires for the proper operation of the Berry Creek connection and delivery system consistent with maintaining the Parties' respective rights to quantity and quality of water for irrigation purposes. The County's approval of those plans shall not be unreasonably withheld. The County shall be notified by Berry Creek of the date and time of any proposed connection or related subsequent repair work at the point of connection and shall have the right to monitor and inspect such work. E. Berry Creek shall, at its sole cost and expense, install, operate, maintain and repair a totalizing flow meter or other meter as specified by the County to measure the deliveries of water from the Delivery System to their separate irrigation systems. Berry Creek shall install such pressure reduction valves and/or booster pumps required to use its water in its system. The County will not modify the operational flow rates identified in subsection 2. A above without 10 days prior notice to Berry Creek. At the County's request, Berry Creek shall timely submit records of its deliveries to the County and shall assist the County as may be necessary in establishing such use to the satisfaction of the State Water Court, State Division Engineer's Office or other authorities. F. No Party shall introduce or authorize the introduction of pollutants into the Pond. The Parties shall use their best efforts to prevent the introduction of pollutants into the Pond by third parties. -5- 3. Commodity Charge and Operation, Maintenance and Repair Fund. A. The County shall be responsible for the operation, maintenance and repair (OMR) of the Ditch above the delivery of water to the Pond and of the Pond and Delivery System; subject to the provisions hereof regarding financial contributions by Berry Creek for OMR and compliance by Berry Creek with its other obligations under this Agreement. B. Berry Creek shall pay the County $0.95 for each 1,000 gallons of water delivered through its meter from the Delivery System. The County will submit invoices to Berry Creek on a quarterly basis, and payment shall be made to the County within 30 days of mailing of those invoices. The amount of the charge for water deliveries shall be increased every three years 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 194.2 for the month of December, 2004. C. The Parties shall contribute to a contingency fund held by the County for major maintenance and repair and for replacement of facilities regarding the Pond and Delivery System. That fund shall be used for major maintenance, repairs and replacements, being those projects which collectively cost in excess of $5,000 and for which the County is not financially reimbursed by construction warranties or otherwise. 1. The Parties' initial annual contributions shall be $2)00 each. The County may elect in its discretion or pursuant to separate agreements with CMC or others, to contribute to the fund in excess of its amount required herein. When the fund totals -6- $45,000, the annual contribution shall be suspended until monies have been expended so that less than $45,000 is held in the fund, at which time annual contributions shall be resumed to the extent necessary to restore that amount. 2. The amount of the contingency fund and Berry Creek's contribution thereto shall be increased every three years 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 Sta tis tics of the United States Department of Labor, and based upon an initial CPI number as published by that Bureau of 194.2 for the month of December, 2004. 3. Except in emergency situations, the County shall give Berry Creek notice of its intended use of such fund and an opportunity to provide comments to the County regarding the proposed work and expenditure prior to initiation of any work. 4. Breach and Enforcement. A. If Berry Creek fails to pay any amount due hereunder, the County may take such action as needed to suspend the delivery of water from the Pond and Delivery System to Berry Creek, provided that the County has given Berry Creek ten business days' notice of such action and an opportunity to cure such breach and provide written evidence to the County of such cure. If Berry Creek violates this provision for a third time, the County shall have the righUmmediately and without notice to suspend such deliveries until the violation has been cured to the County's reasonable satisfaction. -7- B. If Berry Creek exceeds the annual volume of use allocated for its irrigation as stated in subsection 2. A above, at the County's or Berry Creek's request they shall confer and attempt to agree on a plan for reallocation of existing supply and/or acquisition of any supplemental supply that may be needed in order to permit Berry Creek to receive its supply. In the County's reasonable discretion, it may either allow Berry Creek to continue water use, subject to paying for excess use at twice the rate otherwise applicable under this Agreement, or require and implement prompt curtailment of Berry CreekJs use, C. If Berry Creek exceeds the amount of acreage permitted to be irrigated by it under this Agreement, at the County's request it shall confer with the County regarding whether a modification of this Agreement is possible to permit irrigation of such increased acreage. If such modification and increase are not acceptable to the County in its sole discretionJ Berry Creek shall promptly reduce the irrigated area to the amount permitted under this Agreement. D. In addition to the foregoing, the Parties shall have the right to such remedies available at law and in equity for breaches of and to enforce this AgreementJ including specific performance. E. In the event of litigation concerning this Agreement, the prevailing Party or Parties will be entitled to recover their reasonable attorneysJ fees from the non-prevailing Party or Parties. ~. Liabilities and Indemnities. A. This Agreement is not to be construed as a contractual waiver of any immunities or defenses provided by the Governmental Immunity Act, c.R.S. 9 24-1O-101J et seq. or other statutes or common law. -8- B. The County shall make its best efforts to provide a legally and physically adequate supply to Berry Creek from the Pond, but makes no representation concerning the availability of water that may be delivered to the Pond under the County's existing and future water rights. C. The County may, but is not obligated to, obtain insurance to protect the County regarding OMR of the Pond and Delivery System, but the County shall have no obligation to include Berry Creek as an additional insured in such coverage. D. Berry (:reek shall be responsible for any claims, demands, assessments or liabilities associated with or arising from its use of water from the Pond. E. If by reason of uncontrollable forces, either Party is unable in whole or in part to carry out its obligations under this Agreement, the affected Party shall not be deemed in default dming the continuance of such inability or during any other delays that are a direct consequence of the force majeure inability, and the time for completion of any such obligation shall be extended to cover such delays. The term "uncontrollable forces" shall mean, without limitation: Acts of God; strikes, lockouts, or other industrial disturbances; acts of public enemies; orders or restraints of any kind by the government of the United States of America or State of Colorado or any of their departments, agencies, or officials, or any civil or military authority; insurrections; riots; landslides; earthquakes; fires; storms; droughts; floods; explosions; breakage or accident to machinery, transmission or other facilities; or any other cause or event not reasonably within the control of the affected Party and not resulting from its negligence. The affected Party shall, however, remedy with reasonable dispatch the cause or causes preventing it from carrying out its obligations. -9- 6. Notices. All notices, requests, consents, and other communications pertaining to this Agreement shalL be transmitted in writing and shan be deemed duly given when received by the Parties at their addresses below or any subsequent addre'~ses provided to the other Party in writing: Notice to Eagle Count)': Eagle County Facilities Management P.O. Box 850 Eagle, CO 81631 Telephone: 970-328-8881 and Eagle County Attorney P.O. Box 850 Eagle, CO 81631 Telephone: 970-328-8691 Notice to Berry Creek Limited Liability Co.: P.O. Box 1869 Edwards, CO 81632 Notice to Association: Slifer Management 143 E. Meadow Dr. #360 Vail, CO 81657 7. Assignments. The Parties may assign their rights and delegate their duties under this Agreement only to successors-in-interest to their ownership of property with the PUD. Berry Creek's rights and obligations under this Agreement shall become solely the rights and obligations of the Association upon the transfer of II declarant control" to the Association under applicable covenants or bylaws. -10- 8. Miscellaneous. A. Appropriations. The financial obligations of the County hereunder shall be subject to and contingent upon future budgeting and appropriation for the same in accordance with Colorado law. The failure of the County to budget and appropriate funds for their obligations hereunder shall not be deemed a breach of this Agreement. B. Amendments. This Agreement may be amended from time to time by amendments made by the Parties in written form and executed in the same manner as this Agreement. C. Recording. Upon complete execution, the County shall record this Agreement with the Office of the Clerk and Recorder for Eagle County, Colorado and provide copies of the recorded document to all Parties. D. Authorizations. Each person executing this Agreement represents and warrants that he or she has been duly authorized by one of the Parties to execute this Agreement and has authority to bind said Party to the terms and conditions hereof. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as stated below. EAGLE COU~T'fY By an h its Board of County Commissioners B . Date: ')11 r , 2005 -11- BERRY CREEK LIMITED LIABILITY COMPANY BY~ Date: ~/ I~ ,2005 Name: loss G~~ I . Title: t> \Mt'v./l.- c;J-f- of~c\\",,-~ MILLER RANCH PROPERTY OWNERS ASSOCIATION Date: :JIJ~ , 2005 , O:\WP-Docs\David Hallford\Cliems\Eagle Cty\Documcms\Berry Ck\lrrig Pond Agml - Berry Creek 2-8-05."..pd - I 2- ( \ f" .; '. . '. . - ~ '< .-,M,,' }~ . ~ .. ~ ( ( EXHIBIT A HO\NARD DtTCH AND - POND LOCATION MAP " VVWE JANUARY 2004 .' ~' ~,....-.,.,."...., .. "'~', ~'..\\ (;~~~. ~' ~'-/.<,~,~ --.. 6"~ PIPEUNE TO TE ROADWAY LANDSCAPE IRRIGA TRACT 8 QUESTRIAN!HIGH SCHOOL \ \ .. 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