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Home My WebLink AboutC08-097TEAKEJCSIMONTONO 2A0068S22 REC: X0.00 DOC:O$:0B:21pM 04/2212008 HOWARD DITCH EASEMENT AGREEMENT (BATTLE MOUNTAIN HIGH SCHOOL - EAGLE COUNTY) O'`~ N~ 1. PARTfES. 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 and for. delivery of water to the County's Berry Creek Pond as described in section 5 below, 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 F~CHIBIT A {Subdivision}. 2.2 The District desires to obtain the consent of the County to relocate and pipe a portion of the Howard Ditch (Ditch), currently located on or across Tract B of the Subdivision ("the Property"}, to facilitate the development of the new Battle Mountain High School on the Property. SPI has requested that a portion of the Ditch on the SPI Property also be piped as part of this Project. The location of the Property and the SPI Property is generally depicted on attached F~CHIBIT B. 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.~. Pursuant to the terms of this Agreement, the District shall relocate a portion of the Ditch, replace it with an underground 24-inch pipeline, remove the previously open Ditch section, and modify the Ditch to properly connect the new pipeline section to the original Ditch at the downstream end of the pipeline near the SPI Parshall flume, approximately 10 to 15 feet east of the SPI pump house, and connect it to the existing pipeline at the upstream end of the Property at the location depicted on the plans dated December 19, 2007, and last revised on March 21, 2008, attached as EXHIBIT C, hereinafter referred to as the "Project." 3.2 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 May 1, 2008, or such additional time as reasonably required to complete the Project. 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. 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 C:\DOCUMEN75 ANO SETTING5IGUERINILOCAI SEITINGSl7 FIAVOlW2Y INT[RNCT FILE510LK9WOWARU OITCH EASEMENT AGR-BMHS 07712008 COUNTY CLEAN.DOC Cob-o~t~ `~J ~~ of the Project undergoing construction or repair. The District also agrees to make arrangements with other Ditch owners for implementation of the Project and to advise the County thereof. 3.3 The pipeline shall be designed and constructed with a minimum capacity of at least 15 cis, the capacity of the pipeline upstream from the Project and the estimated design capacity of the tail water pipeline at the end of the Howard Ditch. 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 to the beginning of the tail water ditch located directly down-ditch from the existing SPI (golf course owner)' pump station from the ditch. 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 B and on the SPI Property, is shown on attached EXHIBIT D. 3.5 The responsibility of the School District and County for maintenance, repair and replacement of the pipelines previously installed in the Ditch pursuant to the Howard Ditch Easement Agreement between the Parties recorded June 20, 2002, at Reception No. 799277, and the Howard Ditch Easement Agreement (June Creek. Elementary School) recorded September 14, 2007, at Reception No. 200724479, Eagle County Clerk and Recorder ("Easement Agreements") shall be governed by the Easement Agreements. The Parties shall continue to share all maintenance costs on the remaining portions of the Ditch above their respective headgates, with the other owners of the Ditch, 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 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, except the tail water ditch located directly down-ditch from the existing SPI (golf course owner) pump station from the ditch. Nothing in this agreement shall prejudice the Parties' rights to require the Colorado Department of Transportation, other ditch owners, or any other party to maintain the tail water ditch. 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, Easement Agreements, and applicable Colorado law. 3.7 The District shall survey the location of the pipeline within 60 days of completion of construction of the Project, and shall grant to the County within the following 30 days, free and clear of all liens and encumbrances, anon-exclusive easement, 30 feet in width, across Tract B, centered on the pipeline, including the right of ingress and egress across the Property from Miller Ranch Road to access the Ditch easement. That part of the historic easement across Tract B and the recorded easement for the Ditch across Tract B as described in the Easement Agreements shall remain in effect until the new easement is C:ID000MENTS AND SETTING5IGUERINILOCAI SETTINGS\TEMPORARY INTERNET F0.ES\OLK4\HOWARD DRCH EASGMENT AGR•SMHS 03372608 COUNTY CLEAN.DOC 2 i 1 ~~ granted and recorded by the District, and the prior easements shall thereafter be deemed abandoned. 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 shall have the right to use the Ditch and Ditch easement consistent with this Agreement, the Stipulation and the Easement Agreements (the "Prior Agreements") and applicable Colorado law. 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 obtained a decree for conditional water storage right 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 f111ing its Berry Creek Pond with rights other than its Howard Dltch 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 decreed 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. Ail 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. 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. ~.~~~. , 2008. C:4D000MENTS AND SETTING5IGUERINLLOCRL SETfING51TEMPORARYlNTERNET FILGS10LK41HOWARD DITCH EASF.MF;NT AGR-BMHS 03312008 COUNTY CLEAN.DOC 3 C~~ ATTEST: Clerk to the Board of Commissioners STATE OF COLORADO ) ) S5. COUNTY OF EAGLE ) ~1 COUNTY OF EAGLE, STATE OF COLORADO By and Through .Its BOARD OF COUNTY COMMISSIONERS P. 0. Box 850 Eagle, Colorado 81631. 970-328-8685 970-32$-8699 {Fax) Subscribee~a~d sworn to~efo,,r~ me this ~ ~ day of Witness my hand and official seal. My commission expires' g .1d / ~ ~r~fil~Sy(oI~E~~f G HT NOTARY PUBLlC STATE OF COLORADO Commission Expires 1 ~i, a~oi ~] 1/ ' /11 /I , /mil---L ~ W / `-~- , Notary Public // EAGLE COUNTY SCHOOL DISTRICT RE-50J By Sc Green resident B rd of E cation P.O. Box 740 Eagle, Colorado 81631 970-328-6321 970-328-1024 (Fax) CaDOCUMENTS AND SETTING5IGUERINILOCAL SETTINGSITEMPORARY INTERNET FILES10LK4WOWARD DITCH EASEMENT AGR-BMriS 03312008 COUNTY CLEAN.DOC 4 o ~~ STATE OF COLORADO ) ss. COUNTY OF EAGLE ) Subscribed and sworn to before me this ,~ day of , 2008 by Sc~ Green, P,re`sident, Eagle County School District RE-5 J and attested by /C,~~~ ~ l y~~~ . Secretary of Eagle County School District RE-50J. Witness my hand and official seal. My commission expires: ~ o'~ ~d / Notary Public C:IDOCUMENTS AND SETTING5IGUERINII.OCAL SETTINGSITEMPORARY INTERNET FILESVOLK41i-TOWARD 91TCH EASEMENT AGR-BMHS 03312D00 COUNTY CLEAN.DOC S ~. i~ I i i I -. j ~ ~..,.~..,..,..,........W, /j /~, ,,i~/~/ \`\~ ; / ~'~ wit; ` ~ ~~o . ~d ~[ f r ~ r' ~ , i ~ '~ ~ ~ ~'~~ ~ It ~ alb 67 ~ ~~i r ~ ~ { ~ ,~ I ,~ ~ ~ ,~ ~~ ~.. I. " ~ ~ , ,~ ' ~ ~ ~~ ~ / ~~~~ ~ I Ij~ ~~~~ ~ ~/ oh~~ .~ ,/ n°~ f. ,.~ ~; / _ f , , ~ - , .. ~~ o.~ . r~~ - , ~ .. j ~ ~ ~~,~ • ~ ~~ 7 ~ ~ 3iEFg ~ a-~. ~, _ ...-, g ~ x !fE ~b~ .&','vai.`%~.~_F y+~::ij~~,.}77~W~ SESA a J' 1 ~y ~ ~A15 i;5'a ~~y- Sxl~`~3y+ L FGA A I ~ ~~ Q ! 7 .?i'.'_~ '. ?, ;~.~ ~iG.~::. -.'~'l~ ~' ~9i~e 711 e ~ ~ b ~CF ~~ / • ~~r / ? 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