HomeMy WebLinkAboutC12-024 Howard Ditch Management AgreementEAGLE COUNTY, CO 201200996TEAKJSIMONTON
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HOWARD DITCH MANAGEMENT AGREEMENT
THIS AGREEMENT is made and entered into this 1 I day of ^-,i 4 , 2011, by and
among THE COUNTY OF EAGLE, a body politic and corporate, organized and existing under the
laws of the State of Colorado (hereinafter "County "), EAGLE COUNTY SCHOOL DISTRICT RE-
50J (hereinafter "School District "), and SPI GOLF, INC. (f /k/a "Singletree Golf Club;" hereinafter
SPI "), and all collectively referred to as "Parties ".
RECITALS
A. The Parties are owners and users of the Howard Ditch (hereinafter "Ditch "), located generally
in portions of Sections 3, 4, 5, and 11, Township 5 South, Range 82 West, 6 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 Parties under the water rights described in the "Stipulation as to the
Ownership of the Howard Ditch and Howard Ditch First Enlargement and Consent to Carriage of a
Portion of the O'Neill Holland Ditch First Enlargement in the Howard Ditch" dated September 11,
1996, and recorded at Book 708, Page 213, Reception No. 604194 of the records of Eagle County,
Colorado (herein "Stipulation "). SPI has acquired the interests of Ray and Ruth Miller and
Singletree Golf Club and County has acquired the interest of June Creek Ranch Company in the
Howard Ditch water rights described in the Stipulation. The County also has an adjudicated right for
the Berry Creek Pond evidenced by the decree of the District Court for Colorado Water Division No.
5, Case No. 03CW297, which pond storage right is filled with the County's capacity in the Ditch.
The interests in the Howard Ditch described in the Stipulation and in the County's 03CW297 decree
are collectively referred to herein as the "Howard Ditch Water Rights." The County and District
conveyed portions of the consumptive use credits associated with their said water rights pursuant to a
Water Rights Agreement among the County, District, Upper Eagle Regional Water Authority and
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Edwards Metropolitan District dated September 16, 2003. Others who are not parties to this
Agreement also own portions of Howard Ditch Water Rights but do not divert them at and through
the Howard Ditch.
B.The Parties' current use of water delivered in the Ditch generally is described below. These
descriptions are not intended to limit the Parties from making future legal changes to the uses of their
Howard Ditch Water Rights.
1.SPI currently uses water from the Ditch to irrigate the Sonnenalp Golf Course, open
space and park lands.
2.The School District and County, and their respective predecessors in interest have
historically used water from the Ditch to irrigate lands that are now the subject of a
Planned Unit Development commonly referred to as the Berry Creek/Miller Ranch
Project. The final plat for the Berry Creek/Miller Ranch Project Planned Unit
Development is recorded at Reception No.799649 of the records of Eagle County,
Colorado. The School District and County will continue to use the Ditch as a raw
water irrigation system through which certain areas within the Berry Creek/Miller
Ranch Project will be irrigated.
C.The County, School District and SPI also have previously entered into the Howard Ditch
Easement Agreement, dated June 18, 2002 and recorded at Reception No. 799277 of the
records of Eagle County, Colorado, by which the County and School District were authorized
to relocate and enclose in pipe a portion of the Ditch to facilitate development within the
Berry Creek/Miller Ranch Project (herein "Easement Agreement "). The Easement
Agreement also allows the Parties to relocate or add diversion facilities along the Ditch under
certain conditions.
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D.The School District and SPI also entered into a Howard Ditch Easement Agreement (June
Creek Elementary School) dated June 27, 2007 and recorded at Reception No. 200814739,
and a Howard Ditch Easement Agreement (Battle Mountain High School — SPI Golf, Inc.)
dated April 8, 2008 recorded at Reception No. 200808428.
E.The School District and the County also entered into a Howard Ditch Easement Agreement
June Creek Elementary School) dated September 4, 2007 and recorded at Reception No.
200814740, and a Howard Ditch Easement Agreement (Battle Mountain High School —
Eagle County) dated April 8, 2008 recorded at Reception No. 200808522.
F.The terms of this Agreement are intended to supplement, not abrogate, the terms of the
Easement Agreements described in paragraphs C, D and E and the Stipulation.
G.The Parties desire to set forth the terms and conditions of their agreement concerning
management of the Howard Ditch Water Rights and the use, operation, maintenance and
repair of the Ditch.
AGREEMENTS
Therefore, in consideration of the above Recitals (which are hereby incorporated by this reference),
the Parties' rights and obligations set out below, and for good and valuable consideration, the receipt
of which is hereby acknowledged, the Parties agree as follows:
1.Water Rights Ownership. The Owners agree that their respective ownership interests in the
Howard Ditch Water Rights are as follows:
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Right SPI (cfs) District (cfs)Eagle County
cfs)
Howard Ditch, Priority No.
0.74 0.00 0.00180
Howard Ditch, First
Enlargement 0.52 3.42 5.27
Priority No. 385
O'Neill & Holland Ditch
0.00 3.29 0.00
Subsequent to the Stipulation, portions of the County's and the School District's Howard Ditch, First
Enlargement water rights were conveyed to the Upper Eagle Regional Authority. In addition, the
County owns all of the pond storage right decreed in Case No. 03CW297.
2.Carriage Interests and Limitations.
A.The course and length of the Howard Ditch from its point of diversion from the Eagle
River to the point at which water is returned to the Eagle River and the Parties' respective
points of diversion from the Ditch are shown on Exhibit A.
B.The Stipulation provided consent for the School District to carry its O'Neill &
Holland Ditch Water Rights in the Howard Ditch provided that the School District's total
diversions under its water rights was limited in paragraph 6 to 4.3 cfs, subject to the rights of
all Parties recognized in paragraph 7 to use excess Ditch capacity. Therefore, the Parties'
respective ownership interests and carriage interests for purposes of calculating operation,
maintenance and repair obligations for Ditch facilities owned in common by all of the Parties
are agreed to be as follows:
Party Water Right Percentage
Eagle County 5.27 cfs 48.7
District 4.30 cfs 39.7
SPI 1.26 cfs 11.6
Total 10.83 cfs 100
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3.O &M Costs. The Parties are responsible for the operation, maintenance, repair and
replacement of the Ditch headgate, measuring flume, Segments A, B, C, D and E of the Ditch, and
the access road from the Ditch headgate down -ditch to its existing terminus. Costs of operating the
river headgate shall be divided equally among the Parties, and maintenance and repair costs shall be
divided among the Parties in accordance with their respective interests described below. Each Party
is individually responsible for the installation, operation, maintenance and repair of facilities used to
divert its own water from the Ditch and any facilities used exclusively for the Owner's own use.
The School District and County are responsible for maintenance and repair of the pipeline they
constructed in the Ditch pursuant to the Easement Agreements described above. Except as stated
below, and in the Stipulation and Easement Agreements, the Parties shall share Ditch operation,
maintenance and repair costs upstream of their respective points of diversion from the Ditch and in
the tail water ditch (Segment E) proportionate to their ownership interests stated in percentages of
obligation as set forth below.
Ditch Segment County District SPI
A 48.7%39.7%11.6%
B 50.0%50.0%0.0%
C 100.0%0.0%0.0%
D 0.0%0.0%100.0%
E 48.7%39.7%11.6%
The County and the School District shall remain responsible for the costs to maintain, repair, and
replace the pipeline and related facilities installed pursuant to the 2002 Easement Agreement, and
such costs shall be allocated separately among the County and the School District as provided in the
2002 Easement Agreement. The School District shall remain responsible for the costs to maintain,
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repair, and replace the pipelines and related facilities installed pursuant to its Easement Agreements
for the June Creek Elementary School and the Battle Mountain High School. If any party adds a
new diversion facility on a segment of the Ditch that they are not currently using, that party shall be
obligated to pay its pro rata share of maintenance costs for that segment, and the percentages
described above shall be adjusted accordingly. Otherwise, no Party shall be obligated to contribute
to costs for any portion of the Ditch located between that Party's last point of diversion from the
Ditch and the beginning of the tail ditch. The Parties agree that if they are able to recover funds to
cover such costs from other persons or entities claiming interest in the Howard Ditch, such funds
shall be allocated among the Parties and credited toward their obligations hereunder based on their
percentage interests
4.Owners Rights. The Owners each hereby approve use of the Ditch by the other Owners to
divert and deliver other water in the Howard Ditch provided that such use of the Ditch shall be
subordinate to the other Owners' deliveries of their respective Howard Ditch Water Rights through
the Ditch, and provided that such use is authorized by an approved substitute water supply plan or
court decree. If in the future a dispute arises regarding two or more of the Owners' competing rights
to use the excess capacity of the Ditch, then use of such excess capacity shall be divided pro rata
based on the Owners' ownership interest in the Howard Ditch Water Rights. Water diverted under
the Howard Ditch Water Rights, limited by the capacities shown in paragraph 2 (B) will always be
entitled to first priority use of the Ditch. The Owners shall not otherwise, without the prior written
approval of the other Owners, recognize in or grant to any third party a right to use the Ditch as a
storm water drain or conduit for water other than water diverted and delivered under the Howard
Ditch Water Rights.
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5.Reasonable Care. The Parties shall exercise reasonable care in their use of the Ditch and
properties adjacent to the Ditch in order to avoid interference with the other Parties' rights to receive
water from the Ditch. The District and County shall not utilize the Ditch as a stormwater drain or
conduit in connection with their development of the Berry Creek/Miller Ranch Project. No Party
shall introduce or authorize the introduction of pollutants into the Ditch. The Parties shall use their
best efforts to prevent the introduction of pollutants into the Ditch by third parties.
6.Ditch Modifications. Prior to any modification of the existing Ditch structure on Segments
A, B and E of the Ditch, the modifying Party shall submit plans and specifications for the proposed
modifications to the other Parties for review and comments. In the event of negative comments, the
Parties agree to work in good faith to reach a compromise regarding the modifications. SPI's
installation of a pump station to divert its water in its Ditch Segment D downstream of the pipied
portion, shall not be considered to be a "modification" subject to this provision. Installation at other
locations shall be carried -out pursuant to the applicable Easement Agreements, or, if not applicable,
pursuant to this paragraph. Each Party shall have no responsibility or obligation to pay any costs for
any modifications made by any other Party or for any increase in regular maintenance resulting from
such modifications. The delivery of water through the Ditch shall continue uninterrupted during
construction or maintenance on the Ditch, unless the prior written consent of all Parties has been
obtained. Any Party making any modification to the Ditch shall take reasonable steps when
performing such work to minimize any inconvenience to any other Party.
7.Records and Accounting. Each Party shall be responsible for accounting and reporting its
own water diversion and use to the State water officials or others under their decrees. The Parties
shall cooperate to provide the other Parties, upon request, any records that they maintain of Ditch
diversions and deliveries for the purposes of consistency in water rights accounting necessary to
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submit reports to the Division Engineer's Office. This provision does not bind any Party to keep
any specific records of any nature except as they may have separately agreed to do so.
8.Meetings. At the request of any Party, a meeting of Parties shall be held at a time and place
mutually agreed upon to discuss the following year's ditch operations and consider whether to
perform maintenance or repairs on shared segments of the Ditch, the timing and cost associated withpg
the same, and the terms upon which the same shall be performed. Such a meeting shall be held at
least annually in August so that the Parties can anticipate work needed for the next following
irrigation season and make appropriate budgeting decisions and commitments. All such maintenance
and repairs on shared segments of the Ditch shall be agreed to by the Parties as set forth above.
9.Notices. All notices, requests, consents, and other communications pertaining to this
Agreement shall be transmitted in writing and shall be deemed duly given within 3 days of mailing,
or when received by the Parties if hand delivered, at their addresses below or any subsequent
addresses provided to the other Parties in writing:
Notice to Eagle County:
Eagle County Facilities
P.O. Box 850
Eagle, CO 81631
970 - 328 -8882
With copy to:
Eagle County Attorney's Office
P.O. Box 850
Eagle, CO 81631
970 - 328 -8691
Notice to District:
Diana Scott
Director of Facilities
P.O. Box 740
Eagle, CO 81631
970 - 328 -1338
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With copy to:
Jeffery J. Kahn, Esq.
Lyons Gaddis Kahn & Hall, PC
P.O. Box 978
515 Kimbark St., 2nd Floor
Longmont, CO 80502 -0978
303) 776 -9900
Notice to SPI:
SPI Golf, Inc. d/b /a
Sonnenalp Golf Club
c/o Johannes Faessler
20 Vail Road
Vail, CO 81657
970) 479 -5470
With Copy to:
Richard A. Johnson, Esq.
Johnson & Repucci, LLP
2521 Broadway, Suite A
Boulder, CO 80304
303 - )442 -1900
10. Miscellaneous
A.In the event of litigation between the Parties hereto regarding the interpretation of this
Agreement, or the obligations, duties or rights of the parties hereunder, or if suit otherwise is
brought to recover damages for breach of this Agreement, or an action be brought for
injunction or specific performance, then and in such events, the prevailing party shall recover
all reasonable costs incurred with regard to such litigation, including reasonable attorney's
fees.
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B.Invalidity or unenforceability of any provision of this Agreement shall not affect the
other provisions hereof, and this Agreement shall be construed as if such invalid or
unenforceable provision was omitted.
C.This Agreement shall be interpreted in accordance with the laws of the State of
Colorado and the Parties hereby agree to submit to the jurisdiction of the courts thereof.
Venue shall be in the Fifth Judicial District for the State of Colorado.
D.This Agreement represents the entire Agreement between the Parties hereto. There
are no contract documents other than this Agreement. The Agreement may only be altered,
amended, or repealed in writing.
E.This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
F.This Agreement shall inure to the benefit of, and be binding upon, the Parties, their
assigns, transferees, and successors in interest.
G. The financial obligations of the County, School District and of any governmental
successor of the other Parties, pursuant to this Agreement shall be subject to the annual
budgeting and appropriation of funds therefore in accordance with Colorado law without an
appropriation in accordance with a budget adopted in compliance with Article 25, Title 30 of
the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29 -1 -101 et
seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20).
H. This Agreement is not to be construed as a contractual waiver of any immunities or
defenses provided by the Governmental Immunity Act, §24 -10 -101, et seq., C.R.S., or other
statutes or common law.
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I.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.
J.Each person executing this Agreement on behalf of an Owner represents and warrants
that he or she has been duly authorized by the Owner to execute this Agreement and has
authority to bind the Owner to the terms and conditions hereof.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK//
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as follows:
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
BOARD OF COUNTY COMMISSIONERS
tE c
A T:ge4 =1
V *,,, 0 BY
Clerk to the Boar
wiof 3e Stavney y
y
County Commissioners___Chairman 7
pl`1.DKipv i•-O Ili
STATE OF COLORADO
ss.
COUNTY OF EAGLE
The foregoing was acknowledged before me th / J day of; V 41 200t , by a, 0...bifill pf
Witness my hand and official seal.
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My commission expires: k 1
Mf4LIA 6441(Ak•
DEBOI I .Y, f; !1JRC LJ
ti NO i; Ry +PUBLIC s 'Notary PublicSTA1EOFCOLORADO
MYCOMNMi58ioN EXPIRES 312.4/1 20016 EAGLE COUNTY SCHOOL DISTRICT, RE -50J
a:06...3By:PL ( -zr
Philip Onofrio, Chie Financial Officer
Eagle County School District RE -50J
STATE OF COLORADO
ss.
COUNTY OF EAGLE tirl aOla
The foregoing was acknowledged before me this 5 day of iahUpyq, 2 ruby Philip Onofrio.
Witness my hand and official seal.
My commission expires: 6424
MELISSA FORD l l_ , La,Tdrird
NOTARY PUBLIC
STATE OF COLORADO Notary Public
My Commission Expires 04/21/2012
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SPI GOLF, 4.
J
Y
Johanr\es Faessler, President
STATE OF COLORADO
ss.
COUNTY OF EAGLE G Lei/ The foregoing was acknowledged before me this I - day of , , 20,]X, by J 0 $ 1 a e L -/
Witness my hand and official seal.
My commission expires: q ) 1 Old 01 s
WP,titat ekX
LEE 4F2 Notary Public
OT4Ry Notary Public
cn v0
PUBLIC o
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