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HomeMy WebLinkAboutC07-279 Eagle County School District_Howard Ditch Easement} It HOWARD DITCH EASEMENT AGREEMENT (JUNE CREEK ELEMENTARY SCHOOL) 1. PARTIES. The Parties to this Agreement are THE COUNTY OF EAGLE, a body politic and corporate, organized and existing under the laws of the State of Colorado (County) and EAGLE COUNTY SCHOOL DISTRICT RE -50J (District). The County and District are jointly referred to as the Parties. 2. RECITALS AND PURPOSE. 2.1 The Parties are part owners and users of the Howard Ditch, used for delivery of water for irrigation of the Parties' respective lands, located generally in portions of Sections 3, 4 and 5, Township 5 South, Range 82 West, 6th P.M., Eagle County, Colorado. The lands irrigated by the County and the District are located generally within the Berry Creek/Miller Ranch Subdivision, more particularly described in attached EXHIBIT B (Subdivision). 2.2 The District desires to obtain the consent of the Parties to relocate a portion of the Howard Ditch (Ditch), currently located on or across Tract F of the Subdivision ("the Property"), to facilitate the development of the June Creek Elementary School on the Property. The location of the Property is generally depicted on attached EXHIBIT C. The Parties agree to permit the District to relocate the Ditch, subject to the terms and conditions of this Agreement. Accordingly, in consideration of the mutual promises set forth in this Agreement, the Parties covenant and agree as follows: 3. CONSTRUCTION 3.1 Pursuant to the terms of this Agreement, the District shall relocate a portion of the Ditch, replace it with an underground pipeline, remove the previously open Ditch section, and modify the Ditch to properly connect the new pipeline section to the original Ditch at the upstream end of the property and to the existing pipeline at the downstream end of the Property at the location depicted on the preliminary plans dated April 23, 2007, attached as EXHIBIT D, hereinafter referred to as the "Project." 3.2 The project shall be completed in phases in order to minimize disruption of the use of the Ditch by the owners. The first phase of construction shall include construction of a temporary pipeline to bypass water from the Ditch around a portion of the school construction zone at the location shown on attached EXHIBIT E. Once the bypass is completed and shown to convey 5 cfs as contemplated in section 3.3. below, water will be diverted through the bypass to allow for construction of a portion of the permanent pipeline within the historic ditch easement. The first phase will not require any interruption of water flow in the ditch. The second phase of construction shall include construction of a permanent pipeline section between stations 25+33.74 and 31+86.97, or manholes 3 and 6 respectively. Once that section of the permanent pipeline is completed, water will be delivered through the open section of the Ditch and the new pipeline section, and the bypass structure shall be removed. Water will be delivered across the Property in this manner throughout the remainder of the 2007 irrigation season as needed by the Parties. That phase will require a brief shut down of the Ditch for approximately four hours to allow C:\DOCUME-1\MDM\LOCALS-1\TEMPISCRUBBER\HOWARD DITCH_EASEMENi_AGR- JUNE_CREEK_06112007 (2)(COUNTY REDLINE)DOC t removal of the temporary facilities, after which water delivery will resume through the new piped section of the Ditch. In no event shall the flow of water be interrupted for more than 24 hours. The District shall notify the County at least 48 hours in advance of this transition from the temporary bypass to use of the permanent pipeline section, to coordinate stopping water deliveries to minimize disruption and to avoid damage to any water pumps or other devices used by the Parties. The third phase of construction will occur after the end of the irrigation season, approximately October 1, and will include completion of the pipeline across Tract F from approximately manhole 1 through manhole 3. All construction work on the Project shall proceed with reasonable diligence from the commencement of construction to its completion. Construction of the Project shall be completed prior to the beginning of the 2008 irrigation season, on or before April 1, 2008. The District agrees that construction and any future repairs or replacement of the Project shall be conducted and completed so that it will not interrupt the delivery of water through the Ditch by the owners of the Ditch, except as described above. The District agrees to take all reasonably necessary measures at such times to maintain the conveyance capability of the Ditch for delivery of water, including without limitation the use of culverts or other temporary structures to bypass water around any part of the Project undergoing construction or repair. 3.3 The temporary bypass structure shall be designed and constructed with a minimum capacity of at least 5 cfs as shown on attached EXHIBIT E. The permanent pipeline shall be designed and constructed with a minimum capacity of at least 15 cfs, the current capacity of the Ditch at that location. The District has provided the County with a copy of the preliminary design shown on the Howard Ditch Culvert Plan & Profile dated April 23, 2007 for their review. That Plan and Profile is attached as EXHIBIT D. Upon completion of the Project, the Parties shall be provided with as -built drawings of the constructed facilities, with a certification from the District's engineers that the Project is capable of delivering at least 15 cfs of water. 3.4 The District shall be responsible at its sole cost to maintain, repair and replace the Project and all related facilities as needed for proper operation of the Ditch, so as not to interfere with the delivery of water to the County's current headgates. The location of the Ditch, as modified, including the new pipeline on Tract F, is shown on attached EXHIBIT F. 3.5 The School District and County shall be responsible for maintenance, repair and replacement of the pipeline previously installed in the Ditch pursuant to the Howard Ditch Easement Agreement between the Parties recorded June 20, 2002, at Reception No. 799277, Eagle County Clerk and Recorder ("Easement Agreement"). The Parties shall continue to share all maintenance costs on the remaining portions of the Ditch above their respective headgates as provided in that certain Stipulation of the Parties or their predecessors recorded on October 11, 1996, in Book 708, Page 213, at Reception No. 604194, Eagle County Clerk & Recorder ("Stipulation"), except the County shall not be responsible for any further costs for that portion of the Ditch included in the Project. Except as specifically stated herein, no party shall be obligated to contribute to maintenance costs for any portion of the Ditch located below that party's last headgate. C:\DOCUME-1 \MDM\LOCALS-1 \TEMP\SCRUBBER\HO WARD_D ITCH_EASEMENT_AGR� JUNE -CREEK -06112007 (2)(COUNTY REDLINE)DOC L 3.6 The relative rights of the Parties to use the Howard Ditch, including any excess capacity in the Ditch, shall continue to be governed by the Stipulation and Easement Agreement. 3.7 The District hereby grants the County, free and clear of all liens and encumbrances, a non-exclusive easement, 30 feet in width, across Tract F as legally described in attached EXHIBIT G, centered on the pipeline, including the right of ingress and egress across the Property along Miller Ranch Road to access the Ditch easement. That part of the historic easement across the Property for the portion of the Ditch being eliminated pursuant to this Agreement, depicted on attached EXHIBIT H, shall be deemed abandoned upon completion of the Project. 4. TERM. This Agreement, unless amended by Court order or further agreement of the Parties, shall be perpetual. 5. EASEMENT RIGHTS. The Parties stipulate and agree that, upon completion of the Project, the County and District have the right to use the Ditch and Ditch easement consistent with this Agreement, the Stipulation and the Easement Agreement (the "Prior Agreements"). However, nothing in this Agreement shall authorize any of the parties to make any expanded use of the Ditch or Ditch easement across the Property. The County has an application for conditional water storage right pending in Water Court Case No. 03CW297, District Court, Water Division No. 5 for the County's Berry Creek Pond, including the use of the Howard Ditch to fill the pond. The District and the County stipulate and agree that the County's use of the Ditch and Ditch easement for filling its Berry Creek Pond with rights other than its Howard Ditch First Enlargement rights is consistent with the Prior Agreements, provided that the County's use shall be subordinate to and not interfere with the use of the Ditch and Ditch easement by the District to divert and deliver water pursuant to their currently decreed Ditch rights, and the County's Berry Creek Pond storage right claimed in Case No. 03CW297 shall be administered in priority in relation to those District Ditch rights. 6. INDEMNITY. To the extent permitted by law, the District, for its own acts and for its contractors, agents, employees and other people acting for or on behalf of the District on the Project, but not the acts of the others, agrees and does indemnify the County and their agents and employees harmless from and against any and all claims, damages, losses, injuries, costs, and expenses, including attorneys' fees, relating to or arising out of construction, operation or maintenance of the Project. Nothing herein shall be construed as a waiver of defenses available to the District under the Governmental Immunity Act as against third parties. The District expressly waives any defenses under the Governmental Immunity Act as against the County with respect to any and all claims, damages, losses, or injuries relating to or arising out of the Project during its construction. . 7. FINANCIAL OBLIGATIONS. All financial obligations of the County and the District under this Agreement are contingent upon appropriation, budgeting, and availability of funds to discharge such obligations. Nothing in this Agreement shall be deemed to create debt or multiple fiscal year financial obligations of the County or the District, a pledge of credit of the County or District, or a collection or payment guarantee by the County or District. C:\DOCUME-1 \MDM\LOCALS-1 \TEMRSCRUBBER\HO WARD_D ITCH_EASEMENT_AGF� JUNE _CREEK_06112007 (2)(COUNTYREDLINE).DOC 8. BINDING EFFECT AND RECORDATION. This Agreement shall be recorded at the cost of the District, and shall be binding on the Parties, their successors and assigns. The obligations and benefits of this Agreement shall specifically run with the subject properties. 9. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Colorado. DATED. 7 , 2007. COUNTY OF EAGLE, STATE OF COLORADO By and ATTEST: � t Through Its BOARD OF COUNTY COMMISSIONERS y * , Chairman Ac s�� Clerk to the Board of to Yiao►�, P. 0. Box 850 Commissioners Eagle, Colorado 81631 970-328-8685 970-328-8699 (Fax) STATE OF COLORADO ) ss. COUNTY OF EAGLE ) SuIbscribe nd s orn t befre e tflis ay of 2007 by V�,-� — r the County of Eagle. Witness m�pand and official seal. sin x f res NANCY R. WRIGHT NOTARY PUBLIC Notary Public STATE OF COLORADO My Commission Expires 12/18/2010 EAGLE COUNTY SCHOOL DISTRICT RE -50J I' � M1� Boarl/f Educati4 ji P.O. ox 740 Eagle, Colorado 81631 970-328-6321 970-328-1024 (Fax) C:\DOCU ME-1\MDM\LOCALS-i \TEMP\SCRUBBER\HO WARD_D ITCH_EASEMENT_AGR JUNE -CREEK_ 06112007 (2)(COUNTY REDLINE).DOC 4 STATE OF COLORADO ss. COUNTY OF EAGLE Subscribed and sworn to before me this day of tAne 2007 by Scott Green Presi�dle County School District RE -50J and attested by Secretary of Eagle County School District RE -50J. Witness my hand and official_ seal. My commission expires: —,a yg Notary bIic ;n 4"iP ;NpTARY . WCq ONE>I ft WCH22.20 C:\DOCUM E-1 \M DM\LOCALS-1 \TEMP\SCRUBBER\HOW ARD_D ITCH_EASEMENT_AGR JUNE_CREEK_ 06112007(2)(COUNTY REDLINE).DOC 5