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HomeMy WebLinkAboutC05-188 CMC Irrigation Pond Use Agreement II II II II I III II II III 1111 919429 Page: 1 of 15 06/15/2005 03:37 Teak J Simonton Easle, CO 23 R 0.00 o 0.00 IRRIGATION POND USE AGREEMENT BETWEEN EAGLE COUNTY AND COLORADO MOUNTAIN COLLEGE THIS AGREEMENT is made effective as of April 1, 2005, by and between THE COUNTY OF EAGLE, a body politic and corporate, organized and existing under the laws of the State of Colorado (hereinafter "County"); and COLORADO MOUNTAIN JUNIOR COLLEGE DISTRICT, a public junior college district created and existing under the laws of the State of Colorado (hereinafter "CMC"). 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 Unit Development commonly referred to as the Berry Creek/Miller Ranch Project and referred to herein as the "PUD." The final plat for the PUD is recorded at Reception No. 799649 of the records of Eagle County, Colorado. B. The Parties hereto are responsible for the development of separate portions of the PUD and in connection therewith require water for irrigation within the areas for which they are responsible. C. The County uses the Ditch as a portion of a raw water supply for irrigation of approximately 21 acres in the PUD. D. CMC presently leases Tract A, Berry Creek/Miller Ranch PUD, according to the ,plat recorded June 25, 2002 at Reception No. 799649, County of Eagle, Stateof~olorado from the Partnership for Education ("Partnership"). The -1- Partnership is a separate legal entity formed pursuant to Section 29-1-201, c.R.S. by Eagle County and the Eagle County School District RE-50J ("School District"). Pursuant to the lease between CMC and the Partnership (hereinafter "Ground Lease"), 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. Pursuant to the terms of the Ground Lease, the Partnership will convey a portion of Tract A to CMC. At this time it is anticipated that the parcel to be conveyed to CMC by the Partnership will be approximately 6 acres. The remainder of Tract A will remain subject to the terms and conditions of the Ground Lease. The County and School District have agreed that each of them will provide one-half of the amount of water required for CMC's irrigation described herein pursuant to the Irrigation Water Delivery Agreement dated effective as of April 1, 2005 among the County, School District and CMC. E. The County has constructed 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. 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 Water & Sanitation District; and (c) other water supplies which the County may acquire for such purpose. F. 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. CMC agrees to the location of that portion of the Delivery System on its leasehold or other future ownership interest as a condition for receiving water deliveries from the Pond. -2- G. The Pond has a capacity of 22.2 acre feet of operational storage capacity with an additional 9.04 acre feet of storm water detention capacity. 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 sufficiency 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. CMe is allocated the right to access the Delivery System to withdraw water from the Pond in the following maximum amount 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: Maximum Annual Volume Flow Rate Maximum Acre Feet/Acre (acre feet) (gallons per minute) Acres Irrigated . 2.3 18.4 150 8.0 -3- The use of those amounts of water shall be contingent upon the implementation of the Irrigation Water Delivery Agreement among the County, CMC and School District, and CMC acknowledges that the School District shall be responsible to provide the County the equivalent of one-half of the CMC irrigation requirement provided hereunder pursuant to the terms of the Irrigation Water Delivery Agreement. The flow rate established for CMC are based upon the irrigation system design prepared for the County. Their annual maximum volume of use is based upon a maximum water requirement of 2.3 AF per acre on CMC's acreage 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 limiting that season of operation. The County will give CMC notices 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 CMC will be limited to irrigation within the acreage for which it is responsible within the PUD Tract A as shown on Exhibit A attached hereto and incorporated herein by this reference. The CMC irrigation with Pond water supply shall not exceed 8 acres of land. If the amount of CMC's irrigated area is increased pursuant to requirements of the County alone and not of the School District, Design Review Board or Partnership, CMC and the County shall negotiate to amend this Agreement to increase the amount of water supply available for CMC's use. At the time of executing this Agreement, CMC has installed a permanent irrigation -4- system within the approximately 6 acre tract which is in the process of being conveyed to CMC by the Partnership. Of that 6 acre tract, 2.3 acres of land will be permanently irrigated. At the time of executing this Agreement, CMC has also installed a temporary irrigation system, above ground, to restore native grasses on the remainder of Tract A. Such temporary system shall remain in place only for so long as necessary to meet the requirements established by the Design Review Board's approval dated June 4, 2003. While the total irrigation permitted on Tract A shall not exceed 8 acres of land, it is agreed that once temporary irrigation ceases, CMC presently intends to irrigate only that portion of Tract A deeded to CMC by the Partnership. It is anticipated that CMC will work to develop the remainder of Tract A in phases as set forth in the Ground Lease and as a result may from time to time have additional irrigation needs on Tract A. As additional development occurs or as needs arise under the Ground Lease, CMC may access the Delivery System and withdraw water from the Pond to serve such needs provided that CMC shall first notify the School District and County as set forth in paragraph 4 of the Irrigation Water Delivery Agreement and provided further that such use shall not exceed 8 acres of land total with delivery upon the same terms and conditions as set forth herein. D. The Parties acknowledge the location of the meter and Delivery System on Tract A as referenced in Recital F above. The County shall be entitled to access such Delivery System and meter. In CMC's discretion, it also may request the grant of an easement by the Partnership to CMC for that portion of CMC's delivery system from the location of the meter to the boundary of the portion of Tract A which CMC is in the process of acquiring from the Partnership. -5- E. CMC shall be 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. The point of connection from which CMC shall be responsible shall be at and including the meter required for its deliveries. The County has reviewed and approved CMC's three-page Irrigation Plan dated June 29,2004 for its facilities. The County shall be notified by CMC of the date and time of any repair work at the point of connection and shall have the right to monitor and inspect such work. F. CMC 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 its separate irrigation system. CMC shall install such pressure reduction valves and/or booster pumps required to use 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 and the prior written consent of CMC. Such consent shall not be unreasonably withheld so long as there are no additional costs to CMC arising out of the flow rate modification. At the County's request, CMC 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. G. 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. -6- 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 CMC for OMR and compliance by CMC with its other obligations under this Agreement. B. CMC 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 CMC 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' annual contributions together with contributions by Berry Creek Limited Liability Co. and the Miller Ranch Property Owners Association (collectively "POA") shall total $15,000 until suspended as provided below. The County shall contribute $9,300 (62%) and CMC shall contribute $3,600 (24%). The County shall additionally contribute the $2,100 (14%) that -7- it will receive from the POA for that fund pursuant to its separate agreement with the POA. When the fund totals $45,000, the annual contributions 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 based upon the percentages set forth above. 2. The amount of the contingency fund and the Parties' and the POA's contribution thereto shall be increased every three years from the effective 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 194.2 for the month of December, 2004. 3. Except in emergency situations, the County shall give CMC 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 CMC 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 CMC, provided that the County has given CMC 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 CMC violates this provision for a third time, the County shall have the right to immediately and without notice to suspend such -8- deliveries until the violation has been cured to the County's reasonable satisfaction. B. If CMC exceeds the annual volume of use allocated for its irrigation as stated in subsection 2. A above, at the County's or CMC's request CMC shall confer with the County 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 CMC to receive its supply. In the County's reasonable discretion, it may either allow CMC 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 CMC's use. e. If CMC exceeds the amount of acreage permitted to be irrigated by it under this Agreement, at the County's request CMC 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 discretion, CMC 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 Agreement, including specific performance. E. In the event of litigation concerning this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys' fees from the non-prevailing Party. -9- 5. 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. 924-10-101, et seq. or other statutes or common law. B. Contingent upon the implementation of the Irrigation Water Delivery Agreement referenced in Recital D, the County shall make its best efforts to provide a legally and physically adequate supply to CMC 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 CMC as an additional insured in such coverage. D. CMC 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 during 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 -10- 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. 6. Notices. All notices, requests, consents, and other communications pertaining to this Agreement shall be transmitted in writing and shall be deemed duly given when received by the Parties at their addresses below or any subsequent addresses provided to the other Party in writing: Notice to Eagle County: 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 Colorado Mountain College: Office of the Vice President Colorado Mountain College P.O. Box 10001 Glenwood Springs, CO 81602 Telephone: 970-945-8691 and -11- Beattie & Chadwick 932 Cooper Ave. Glenwood Springs, CO 81601 Telephone: 970-945-8659 7. Assignments. The Parties shall not assign their rights or delegate their duties hereunder except with the other Party's prior written consent, except that the County may assign rights and delegate duties without CMC's consent to an enterprise or other entity owned or controlled by the County. 8. Miscellaneous. A. Appropriations. The Parties' financial obligations hereunder shall be subject to and contingent upon future budgeting and appropriation for the same in accordance with Colorado law. The failure of either the County or CMC to budget and appropriate funds for their obligations hereunder shall not be deemed a breach of this Agreement but shall suspend their rights to receive water from the Pond until such obligations have been budgeted, appropriated, and fully paid. 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 their Party to execute this Agreement and has authority to bind said Party to the terms and conditions hereof. -12- IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as stated below. EAGLE COUNTY By and thr its Board of County Commissioners By: Date:~ (Lf ,2005 COLORADO MOUNTAIN JUNIOR COLLEGE DISTRICT 2005 -13- ( EXHIBIT A HOWARD DITCH AND POND LOCATION MAP WWE JANUARY 2004 " ,/' " ~ \ (, -.--- 6"0 PIPEUNE TO ~. . 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