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HomeMy WebLinkAbout4.0 CorrespondenceSP • Southern Pacific Real Estate Enterprises MAR 2 21996 1860 LINCOLN STREET • SUITE 200 • DENVER, COLORADO 80295 • TELEPHONE (303) 812-7616 • FAX (303) 812-7620 GARY H. HUNT District Manager In reply, please refer to: March 19, 1996 Planning Department County of Garfield Garfield County Courthouse 109 Eighth Street, Suite 303 Glenwood Springs, Colorado 81601 TO: THE BOARD OF COUNTY COMMISSIONERS RE: Subdivision Exemption by Ernest Frywald; Garfield County, Colorado Gentlemen: The Railroad is in receipt of the Public Notice for the above -referenced matter. In reviewing the legal description, it was discovered that the legal description for the property encroaches into the Railroad right-of-way. The description encroaches approximately 33' on the south. As it continues northerly, it jogs back to 27' in the middle portion; and, on the north end, it is at 32' into the right-of-way of the Railroad's ownership. The area of encroachment covers approximately 1.57 acres, more or less, as shown in the legal description. Southern Pacific Transportation Company therefore respectfully requests that the legal description be modified to reflect the fact that it should be moved back to the property line as depicted on the 10.3 acres that is being subdivided. Should you have any further questions regarding this matter, please call me at (303) 812-7616 or send us a letter regarding this issue to our address as noted above. GHH/mrt C:IOATAIGHHILETTERS ICtyPlan3.19 Sincerely, Gary H. Hunt As Agent for Southern Pacific Transportation Company A Division of Southern Pacific Rail Corporation SHERRY A. CALOIA JEFFERSON V. HOUPT TRAVIS S. THORNTON CALOIA & HOUPT, P.C. ATTORNEYS AT LAW Goei-IF :F.LD cowl l Y 1204 GRAND AVENUE GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-6067 FACSIMILE: (970) 945-6292 February 28, 1997 Mark Bean, Director Garfield County Development Dept. 109 Eighth Street, Suite 303 Glenwood Springs, CO 81601 Re: Fyrwald Dear Mark: Enclosed please find the executed Basalt Water Conservancy District Contract and an unexecuted copy of the declaration of covenants to supplement the final submittal for the Fyrwald Exemption. I anticipate getting three signed originals of the Declaration of Covenants on Monday which I will promptly bring to your office. In the meantime, my client is anxiously awaiting final plat as he wishes to sell the property. Could you submit the final plat to the County Surveyor for his review and signature as soon as possible and schedule this for final review in front of the County Commissioners as soon as possible. Please call with any questions. SAC:nla Enclosures cc: Thomas A. Zancanella, P.E., w/enc. Brett Barnett, w/enc. Very truly yours, CALOIA & HOUPT, P.C. FYRWALS-Bean-ltr-1 • • BASALT WATER CONSERVANCY DISTRICT WATER ALLOTMENT CONTRACT Pursuant to C.R.S. 1973, 37-45-131 Ernie Frywald (hereinafter collectively "Applicants') has applied to the Basalt Water Conservancy District (hereinafter the ''District"), a political subdivision of the State of Colorado, organized pursuant to and existing by virtue of Colorado Revised Statutes, 1973, 37-45-101, et se . , for an allotment Contract for beneficial use of water rights owned, leased, or hereafter acquired by the District. By execution of this Contract, Applicant agrees to the following terms and conditions: 1. QUANTITY: In consideration of the covenants and conditions herein contained, Applicant shall be entitled to receive and apply to beneficial use .033 cubic foot of water per second from the District's direct flow rights and 12.E acre feet per year of storage water owned or controlled by the District. 2. SOURCE OF ALLOTTED WATER: Water rights allotted pursuant to this Contract shall be from the District's water rights decreed to the Basalt Conduit, Landis Canal, Stockman's Ditch Extension, or other decrees or water rights hereafter acquired by the District, including the District's contractual right to receive storage water from Ruedi Reservoir. The District shall have the right to designate the water right or Decree of the District from which the Applicant's allotted rights shall be obtained. The Applicant's use of any of the District's water rights shall be subject to any and all terms and conditions imposed by the Water Court on the use of the District's said rights. Exchange releases made from the District's storage rights in Ruedi Reservoir or other works and facilities of the District shall be delivered to the Applicant at the outlet works of said storage facility and release of water at such outlet works shall constitute full performance of the District's delivery obligation. Delivery of water from the District's storage rights in Ruedi Reservoir shall be subject to the District's lease Contract with the United States Bureau of Reclamation and any rules and regulations promulgated pursuant thereto. 3. PURPOSE AND LOCATION OF USE: Applicant will use the waters herein granted for beneficial purposes limited to the augmentation of existing and future wells and other water sources, within or through facilities or upon lands owned, operated, or served by Applicant, which lands are described on Exhibit "A" attached hereto; provided that the location and purpose of Applicant's use of said water shall be legally recognized and permitted by the applicable governmental authority having jurisdiction over the property served. Applicant's contemplated usage for the water allotted hereunder is for the following use or uses: 1.2 Acre feet per year for Domestic/Municipal 11.3 Acre feet per year for Industrial/Commercial 11:1UK113W[p {yyWA(ITALL,T.[UN 1 • • Applicant acknowledges that usage of the District's water rights as herein contemplated shall be in lieu of or supplemental to Applicant obtaining or adjudicating, on its own, the right to use certain waters. It is acknowledged that certain locations within the District may not be susceptible to service solely by the District's water rights allotted hereunder or the District's said water rights may not satisfy Applicant's needs and purposes. To the extent that service cannot be achieved by use of the District's allotted water rights, or in the event said service is inadequate, Applicant may, utilize such other water rights, by way of supplementing the District's water rights, or otherwise, as is necessary to assure water service sufficiently reliable for Applicant's intended purpose or purposes. All lands, facilities and areas served by water rights allotted hereunder shall be situated within the boundaries of the District. The District reserves the exclusive right to review and approve any conditions which may be attached to judicial approval of Applicant's use of the District's water rights allotted hereunder. Applicant agrees to defray any out-of-pocket expenses incurred by the District in connection with the allot- ment of water rights hereunder, including, but not limited to, reimbursement of legal and engineering costs incurred in connection with any water rights adjudication necessary to allow Applicant's use of such allotted water rights; provided, however, in the event any such adjudication involves more of the District's water rights than are allotted pursuant to this Contract, Applicant shall bear only a pro -rata portion of such expenses. Applicant shall be solely responsible for providing works and facilities, if any, necessary to utilize the District's water rights allotted hereunder for Applicant's beneficial use. Water service provided by the District shall be limited to the amount of water available in priority at the original point of diversion of the District's applicable water right and neither the District, nor those entitled to utilize the District's decrees, may call on any greater amount at new or alternate points of diversion. The District shall request the Colorado State Engineer to estimate any conveyance losses between the original point and any alternate point and such estimate shall be deducted from this amount in each case. The District, or anyone using the District's decrees, may call on any additional sources of supply that may be available at an alternate point of diversion, but not at the original point of diversion, only as against water rights which are junior to the date of application for the alternate point of diversion. In the event the Applicant intends to develop an augmentation plan and institute legal proceedings for the approval of such augmentation plan to allow the Applicant to utilize the water allotted to Applicant hereunder, the Applicant shall give the District written notice of such intent. In the event the Applicant develops and adjudicates an augmentation plan to utilize the water allotted hereunder, Applicant shall not be obligated to bear or defray any legal or engineering expense of the District incurred by the District for the purpose of developing and adjudicating a plan of augmentation for the District. In any event, the District shall have the right to approve the Applicant's augmentation plan and the Applicant shall provide the District copies of such plan and of all pleadings and other papers filed with the Water Court in the adjudication thereof. 4. PAYMENT: Applicant shall pay annually for the water service described herein at a price to be fixed annually by the Board of Directors of the District for such service. Payment of the annual fee shall be made, in full, within fifteen (15) days after the date of a notice from the District that the payment is due. Said notice will advise the Applicant, among • • other things, of the water delivery year to which the payment shall apply and the price which is applicable to that year. If a payment is not made by the due date, written notice thereof will be sent by the District to the Applicant at Applicant's address set forth below. If payment is not made within thirty (30) days after said written notice, the District may, at its option, elect to terminate all of the Applicant's right, title, or interest under this Contract, in which event the water right allotted hereunder may be transferred, leased or otherwise disposed of by the District at the discretion of its Board of Directors. In the event water deliveries hereunder are made by or pursuant to agreement with some other person, corporation, quasi -municipal entity, or governmental entity, and in the event the Applicant fails to make payments as required hereunder, the District may, at its sole option and request, authorize said person or entity to curtail the Applicant's water service pursuant to this Contract, and in such event neither the District nor such persons or entity shall be liable for such curtailment. 5. APPROPRIATION OF FUNDS: The Applicant agrees that so long as this Contract is valid and in force, Applicant will budget and appropriate from such sources of revenues as may be legally available to the Applicant the funds necessary to make the annual payments in advance of water delivery pursuant to this Contract. The Applicant will hold harmless the District and any person or entity involved in the delivery of water pursuant to this Contract, for discontinuance in service due to the failure of Applicant to maintain the payments herein required on a current basis. 6. BENEFIT OF CONTRACT: The water right allotted hereunder shall be beneficially used for the purposes and in the manner specified herein and this Contract is for the exclusive benefit of the Applicant and shall not inure to the benefit of any successor, assign, or lessee of said Applicant without the prior written approval of the Board of Directors of the District. In the event the water right allotted hereunder is to be used for the benefit of land which is now or will hereafter be subdivided or otherwise held or owned in separate ownership interest by two (2) or more uses of the water right allotted hereunder, the Applicant may assign the Applicant's rights hereunder only to a homeowners association, water district, water and sanitation district or other special district properly organized and existing under and by virtue of the laws of the State of Colorado and then only if such association or special district establishes to the satisfaction of the Basalt Water Conservancy District that it has the ability and authority to assure its performance of the Applicant's obligations under this Contract. In no event shall the owner of a portion, but less than all, of the Applicant's property to be served under this Contract, have any rights hereunder, except as such rights assignment of the Applicant's rights under this Contract shall be subject to and must comply with such requirements as the District may hereafter adopt regarding assignment of Contract rights and the assumption of Contract obligations by assignees and successors, provided that such requirements shall uniformly apply to all allottees receiving District service. The restrictions on assignment as herein contained shall not preclude the District from holding the Applicant, or any successor 3 • • to the Applicant, responsible for the performance of all or any part of the Applicant's covenants and agreements herein contained. 7. OTHER RULES: Applicant's rights under this Contract shall be subject to the Water Service Plan as adopted by the District and amended from time to time; provided that such Water Service Plan shall apply uniformly throughout the District among water users receiving the same service from the District. Applicant shall also be bound by the provisions of the Water Conservancy Act of the State of Colorado, the Rules and Regulations of the Board of Directors of the District, the plumbing advisory, water conservation, and staged curtailment regulations, if any, applicable within the County in which the water allotted hereunder is to be used, together with all amendments of and supplements to any of the foregoing. 8. CURTAILMENT OF USE: The water service provided hereunder is expressly subject to the provisions of that certain Stipulation in Case No. 80 CW 253 on file in the District Court in Water Division 5 of the State of Colorado, which Stipulation provides, in part, for the possible curtailment of out -of -house municipal and domestic water demands upon the occurrence of certain events and upon the District giving notice of such curtailment, all as more fully set forth in said Stipulation: 9. OPERATION AND MAINTENANCE AGREEMENT: Applicant shall enter into an "Operation and Maintenance Agreement" with the District if and when the Board of Directors finds and determines that such an agreement is required by reason of additional or special services requested by the Applicant and provided by the District or by reason of the delivery or use of water by the Applicant for more than one of the classes of service which are defined in the Rules and Regulations of the Board of Directors of said District. Said agreement may contain, but not be limited to, provision for water delivery at times or by means not provided within the terms of standard allotment contracts of the District and additional annual monetary consideration for extension of District services and for additional administration, operation and maintenance costs, or for other costs to the District which may arise through services made available to the Applicant. 10. CHANGE OF USE: The District reserves the exclusive right to review and approve or disapprove any proposed change in use of the water right allotted hereunder. Any use other than that set forth herein or any lease or sale of the water or water rights allotted hereunder without the prior written approval of the District shall be deemed to be a material breach of this Contract. 11. PRIOR RESOLUTION: The water service provided hereunder is expressly subject to that certain Resolution passed by the Board of Directors of the District on September 25, 1979, and all amendments thereto, as the same exists upon the date of this application and allotment Contract. 12. NO FEE TITLE: It is understood and agreed that nothing herein shall give the Applicant any equitable or legal fee title interest or ownership in or to any of the water or water rights of the District, but that Applicant is entitled to the right to use the water right allotted hereunder, subject to the limitations, obligations and conditions of this Contract. 11:1UK\BW CITfR YW /.IDAIinT C1J 4 • • 13. CONSERVATION PRACTICES: Applicant shall implement and use commonly accepted conservation practices with respect to the water and water rights allotted hereunder and shall be bound by any conservation plan hereafter adopted by the District, as the same may be amended from time to time. Applicant's Address: c/o Aspen Sports, Inc. 408 East Cooper Aspen, CO 81611 STATE OF COLORADO COUNTY OF ) ss. Subscribed and sworn to before me this by Ernie Frywald. II:WirtOWCV FATW AID.ALIET. CON APPLICANT: Ernie Frywald WITNESS my hand and official seal. My commission expires: 5 day of , 1996, Notary Public ORDER GO- ''NG APPLICATION FOR ALL* 'NT CONTRACT ERNIE FRYWALD CONTRACT NO. 265 Application having been made by or on behalf of Ernie Frywald and hearing on said Application having been duly held, it is hereby ordered that said Application be granted and that the attached Water Allotment Contract for .033 cubic feet of water per second from the District's direct flow rights and 12.5 acre feet of water per year of storage water owned or controlled by the District is hereby approved and executed by and on behalf of the Basalt Water Conservancy District, for the beneficial use of the water allotted in the attached Contract, upon the terms, conditions and manner of payment as therein specified and subject to the following specific conditions: 1. In the event of the division of the property served by this Contract into two (2) or more parcels owned by different persons, the Applicant shall establish a Homeowners Association or other entity acceptable to the District for the ongoing payment of charges due under the approved Contract following subdivision of the property described in the Application on file with the District and the Applicant shall give notice to purchasers of all or any part of the subject property of the obligation of this Contract, and shall record such notice in the records of the Clerk and Recorder of Garfield County, Colorado. Applicant and his successors and assigns shall comply with all rules and regulations now existing or hereafter adopted by the District to enforce payment of charges due under the approved Contract by present and future owners of all or any part of the real property served under this Contract. 2. The Applicant shall provide the District proof that the proposed land use of the land to be benefitted by the water allotted hereunder has been approved by the applicable governmental authorities having jurisdiction over such land use, including evidence satisfactory to the District that each lot or parcel to be benefitted hereunder is legally subdivided. 3. By acceptance of this Contract, Applicant acknowledges that within two years of the date hereof or such later date as the District may approve, the Applicant shall file with the Water Court of Water Division No. 5 a water rights plan of augmentation for utilization of water allotted hereunder at the location and for the purposes hereinabove set forth or the Applicant's water allotment as provided in this Contract shall be included in a water rights plan of augmentation to be filed by the District with the expenses thereof to be shared prorata by the Contract holders included in such plan; provided that inclusion of the Applicant's water allotment in the District's plan of augmentation shall be at the District's sole discretion. The District may establish an augmentation plan fee to be paid by the holder of any Contract to be included within a plan of augmentation to be filed by the District, which fee shall be payable in advance of the inclusion of such Contract in a District plan of augmentation and may be based on the District's good faith estimate of the anticipated expense of such plan of augmentation. If such augmentation plan fee paid by a Contract holder exceeds the Contract holder's prorata portion of the actual expenses incurred by the District in completing said plan of augmentation, the District shall refund such excess to the Contract holder. I I. •.OK\ a wC V. FRYW AIL.ntip{. t>KO -1- ' 4. Any a• conditions imposed upon the rele- diversion of water allotted hereunder in any water lights plan of augmentation or other water rights decree of the Water Court for Water Division No. 5 shall be incorporated herein as a condition of approval of this contract. Granting of this allotment contract does not constitute the District's representation that the Applicant will receive a well permit or water rights decree for the land to be benefitted hereby. 5. If Applicant intends to divert water through a well or wells, Applicant shall provide the District a copy of Applicant's valid well permit for each such well before the District is obligated to deliver water for the benefit of Applicant hereunder. 6. The Applicant has acknowledged that the land to be benefitted by the attached Contract is described on Exhibit "A" attached hereto and incorporated herein by this reference. Approved this 8th day of January, 1996. Attest: By: `-/:)CL /I'7 Barbara Mick - Secretary 11 \[MNiw(1). YWALD\nllDT.ORO BASALT WATER CONSERVANCY DISTRICT -2- • • PROPERTY DESCRIPTION A TRACT OF LAND SITUATED IN LOT 20 OF SECTION 1. TOWNSHIP 7 SOUTH, RANGE 89 WEST OF THE SIXTH PRINCIPAL MERIDIAN, LOT 1 IN SECTION 6 ANO LOT 1 IN SECTION 7. TOWNSHIP 7 SOUTH, RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, GARFIELD COUNTY, COLORADO, LYING SOUTHERLY OF STATE HIGHWAY -NO. 82 ANO NORTHEASTERLY OF THE DE YER ANO RIO GRAN0E WESTERN RA I LRC.ID (ASPEN BRANCH). DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE SCUTHWESTERLY RIGHT -CF -WAY OF SAID HIGHWAY WHENCE THE NORTH QUARTER CORNER OF SAIO SECTION 7 BEARS N 39'03' E 502.63 FEET; THENCE S 01'51'30- W 199.92 FEET; THENCE N 88'13' W 89.64 FEET; THENCE S 02'02' E 58.52 FEET; THENCE WEST 463.67 FEET TO A POINT ON THE NORTHEASTERLY RIGHT-OF- WAY LINE OF SAID RAILROAD: THENCE N 19'45' W 422.43 FEET ALONG THE NORTHEASTERLY RICHT-OF-WAY LINE OF SAID RAILROAD; THENCE N 17'52' W 549.2 FEET ALONG THE NORTHEASTERLY RICHT-OF-WAY LINE CF SAID RAILROAD; THENCE N 61'50' E 301.81 FEET TO A POINT ON THE SOUTHWESTERLY RIGHT -CF -WAY LINE OF SAID HIGHWAY; THENCE S 36'45'15' E 1007.55 FEET ALONG THE SOUTHWESTERLY RIGHT-OF-WAY OF SAIO HIGHWAY TO THE POINT OF BEGINNING. EXHIBIT "A" • • BASALT WATER CONSERVANCY DISTRICT IIVIPORTANT If you divert water from a groundwater source (well) you must provide the District with a copy of a valid well permit from the State Engineer's office. Without evidence of a permit, the District can not request release of water from Ruedi Reservoir for your benefit. When a valid permit is obtained, please provide the District with a copy. Remember, if we d© not have evidence of a valid permit, your structure will be considered "inactive" and water can not be released for your benefit.. Send Permit Information to: Resource Engineering, Inc. 909 Colorado Avenue Glenwood Springs, Colorado 81601 Quec tions: Scott Fifer, Resource Engineering, Inc. (303)945-6777 • • DECLARATION OF COVENANTS THE ASPEN SPORTS, INC. EXEMPTION (Garfield County, Colorado) THIS DECLARATION OF COVENANTS is made this day of February, 1997, by Aspen Sports, Inc. (hereinafter "Declarant"), Owner of the property described below (hereinafter "Aspen Sports, Inc."); WITNESSETH: WHEREAS, Declarant is the sole owner of certain real property located in Garfield County, Colorado, described as Lots 1, 2, 3 and 4, Aspen Sports, Inc., Exemption, recorded as Reception No. of the Garfield County Clerk and Recorder; and WHEREAS, Well Permit No. 31706, designated as Aspen Sports, Inc., Well No. 1 (aka Colton Well) (hereinafter "Well No. 1 "), is contemplated to be the primary source of water for use on Lots 1 and 2, and access to and use of said well must be confirmed for the benefit of Lots 1 and 2. WHEREAS, Well Permit No. 046478-F, designated as the Aspen Sports, Inc., Well No. 2 (hereinafter "Well No. 2"), is contemplated to be the primary source of water used on Lots 3 and 4, and to be available for use by Lots 1 and 2 at their option, and access to and use of said well must be confirmed for the benefit of all lots. NOW, THEREFORE, Declarant hereby declares that the Well shall be held, sold, and conveyed subject to the following restrictions, covenants, and conditions, which are for the purpose of protecting the value and desirability, and which shall run with, the Well and be binding on all parties having any right, title, or interest in the Well or any part thereof, their heirs, successors, and assigns, and shall inure to the benefit of each owner thereof. 1. Water Supply. The primary commercial and domestic water supply for Lots 1 and 2 within the Subdivision is Well No. 1, operated pursuant to Well Permit No. 31706, issued by the State Engineer. The owners of Lots 1 and 2 shall be entitled to use Well No. 1 as it has historically been used. No representation as to the legality of use of said Well No. 1 is made and owners of Lots 1 and 2 may use the well for historic purposes or for any additionally added lawful use. The primary source of water for Lots 3 and 4, and additional water source for Lots 1 and 2, is Well No. 2, operated pursuant to Well Permit No. 046478-F, issued by the State Engineer, and pursuant to a contract with the Basalt Water Conservancy District. Well No. 2 diversions may not exceed 50 gallons per minute, and may be used only for household purposes for three residences, commercial uses, fire protection, and for the irrigation of home gardens and lawns. C: \ W P51 \ DOCS\ASPEN . I AG February 21, 1997 • Lot 2 and all tenants that lease Lot 2 shall have free and unrestricted access to Well No. 1, pump, common pipeline valves, and all workings shared in common located on Lot 1. In the event that Lot 1 decides to lock the gate/well house for security purposes, Lot 2 owners and tenants shall be immediately provided with a key and shall not be restricted from accessing the well/pump and workings. Lot 3 and all tenants that lease Lot 3 shall have free and unrestricted access to the Well No. 2, pump, common pipeline valves, and all workings shared in common located on Lot 4. Lots 1 and 2 and all tenants that lease Lots 1 and 2 shall have a similar right of access in the event that they intend to use or hook on to Well No. 2. In the event that Lot 4 decides to lock the gate/well house for security purposes, Lots' 1, 2 and 3 owners and tenants shall be immediately provided with a key and shall not be restricted from accessing the well/pump and workings. 2. Conveyance and Assignment of Permit and Facilities. Well No. 1 and appurtenant facilities are currently owned by Declarant, and a well permit for the Well is currently in effect. Each lot owner of Lots -1 and 2 shall own a proportionate interest in the Well, well permit, pump, and any appurtenant facilities, proportionate to their use as it currently exists or as may lawfully be added. The permit shall be in the name of the owner of the Lot 1, as the owner may change from time to time, and such owner shall be responsible for subsequent assignments and amendments to reflect the current ownership. The owner of Lot 1 shall be designated as the lot owner to receive all mail and documentation concerning Well No. 1, and shall promptly without delay provide copies to the other lot owner. Well No. 2 and appurtenant facilities are currently owned by Declarant, and the permit for the Well is currently issued in the name Aspen Sports, Inc. Each lot owner shall own an undivided interest in Well No. 2 and its well permit, pump, and any appurtenant facilities. The permit shall be put in the name of the owner of Lot 4, as it may change from time to time, and such owner shall be responsible for subsequent assignments and amendments to reflect current ownership. The owner of Lot 4 shall be designated as the lot owner to receive all mail and documentation and shall promptly without delay provide copies to all other lot owners. 3. Use. In-house/in-building use of the water shall take precedence over outside lawn and garden irrigation. In the event of shortage, lot owners shall cooperate and shall reduce their uses accordingly to conserve water in times when the Well may not produce adequate amounts. 4. Ownership and Maintenance of Well and Water Facilities. Each lot owner shall be the sole owner of water conveyance facilities which are used solely by that lot. Pursuant to Paragraph 2., above, the lot owners shall be the joint owners, each owning an undivided interest, in the Wells, pumps, and any appurtenant facilities which are used or capable of use in common by the lots, proportionate with development approved or existing on their lot. Each lot owner's interest shall be appurtenant to such lot, and may not be transferred apart from the C: \ W P51 \ DOCS \ASPEN. I AG February 21, 1997 -2- • • lot. The owners shall be solely responsible for the Wells used by them, and to operate, maintain, repair, replace, and improve the Wells, pumps, and any other appurtenant facilities. 5. Cost of Water Facilities. The owner(s) of each lot shall be entitled to use that amount of water from the Well No. 2 proportionate to the approved or existing development on each lot. The withdrawal of water from Well No. 2 shall be for uses as approved by the State. Each lot owner using Well No. 1 and Well No. 2 must share in its proportionate amount of the costs of maintenance, operation, repair, and replacement of the Wells, pumps, and appurtenant facilities consistent with County approval. The costs of common water lines or other common water facilities shall be borne equally by the owners of those lots using the Well only. The lot owners shall cooperate to enter into mutual agreements for the completion and payment of the costs of any maintenance, operation, repair, replacement, or improvement of common facilities. Any lot owner who installs or improves a well, pump or pipeline shall be entitled to reimbursement of a proportionate share of said expenses in the event that another lot owner later hooks on to the well and benefits from said improvements. In the event the lot owners are unable to agree upon any required maintenance, repair, replacement, or improvement, any lot owner shall be entitled to undertake the minimal work necessary and essential for proper functioning of the common facilities. In the event a lot owner determines to undertake such work, he shall first notify the other lot owners using that Well in writing. The lot owner undertaking the work shall upon completion provide the other lot owners with a written statement of the work performed and the other lot owners' proportionate shares of the costs. The other lot owners shall make payment as set forth in paragraph 7, below. 6. Basalt Water Conservancy Contract. Declarant has entered into a Water Allotment Contract with the Basalt Water Conservancy District (hereinafter "the Contract") for water to augment depletions from Well No. 2. The Contract is for the benefit of Lots 1, 2, 3 and 4, and all lot owners shall be equally responsible for all obligations under the Contract, and such obligations shall be deemed a common expense regardless of whether a lot owner is using the Well No. 2. The Contract shall be assigned to the owner of Lot 4 pursuant to the terms of the Contract, as the owner may change from time to time, and such owner shall be responsible for subsequent assignments and amendments to reflect current ownership. The owner of Lot 4 shall be designated at the lot owner to receive all mail and documentation and shall promptly without delay provide copies to the other lot owners. Payments due under the Contract shall be made as set forth in Paragraph 7, below. 7. Payment of Common Expense. Each lot owner shall pay its proportionate share of common expenses within 30 days from the time a statement of expenses is presented for payment. In the event a lot owner fails to pay its share within 60 days of presentment, interest on the unpaid amount shall accrue at 10 percent per annum, beginning 60 days from presentment. In the event a lot owner fails to pay any amounts due with interest thereon, within six months from the date of presentment for payment, water service to the delinquent lot shall be discontinued. Further, the lot owner which has paid such costs and expenses shall be entitled to pursue any remedy available at law or in equity for a breach of this Agreement, and shall be C: \ W P51 \ DOGS ASPEN. I AG February 21, 1997 -3- • • entitled to reasonable attorneys' fees actually incurred to obtain and execute upon a judgment for collection. 8. Easements. Lot 1 of the Subdivision is and shall be subject to perpetual and nonexclusive easement for the benefit of Lot 2, sufficient to give force to the provisions of this Declaration, including easements for the maintenance, operation, repair, replacement and improvement of Well No. 1, pump, appurtenant facilities and water lines, as shown on the final plat and/or for facilities as located and are in place. Lot 4 of the Subdivision is and shall be subject to perpetual and nonexclusive easements for the benefit of Lots 1, 2 and 3 sufficient to give force to the provisions of this Declaration, including easements for the maintenance, operation, repair, replacement and improvement of Well No. 2, pump, appurtenant facilities and water lines, as shown on the final plat of for facilities as located and/or as are in place. 9. Abandonment. In the event that any lot owner decides to use another well or to drill a new well on his own lot for all or a portion of uses on his lot, he may abandon all or a portion of his claim to Well Nos. 1 and 2. In the event of such partial abandonment, the cost of maintenance, repair, replacement and operation shall be reduced accordingly. In the event of full abandonment of all claims and use of either or both of the Wells by the owners of the lots on which the subject Well does not sit, which abandonment must be in writing, signed and notarized by the then lot owner, this Declaration shall be voided and shall be of no further force of effect. 10. 600 -foot Spacing. All lot owners herein waive their right to oppose the drilling or use of a new or existing well by the other lot owner on the basis that such well is within 600 feet of the Well. 11. Use of Water: No Waste. Depending on the available supply of water, each lot within the Subdivision is entitled to irrigate up to and no more than 5,000 square feet of lawns and gardens. Domestic, in-house uses shall take precedence over irrigation use, and no outside use shall be allowed if any in-house domestic needs not met. The lot owners may in writing agree to restrictions on and schedules for lawn and garden irrigation. The Wells shall be used in accordance with the well permit and any lawful orders of the Water Commissioner, Division Engineer, or State Engineer. No lot owner shall waste water, and each owner shall exercise prudence and conservation in the use of water in order to allow for the efficient and beneficial use of the Well. No lot owner shall use more than an equal proportionate share of water or 1/4 share each of the water physically available from Well No. 2. 12. Covenants to Rurt. The terms and conditions herein set forth in this Agreement shall run with the property constituting the Subdivision, and shall bind the parties, his successors, and assigns. All parties claiming by, through, or under the parties shall be taken to hold, agree, and covenant with each owner of each lot in the Subdivision, their heirs, C: MPS 1 \ DOCS \ ASPEN. 1 AG February 21, 1997 -4- s e successors, or assigns, to conform to and observe said restrictions, but no restrictions herein set forth shall be personally binding on the parties or any other persons except in respect to breaches committed during his or their seisin of, or title to said land. 13. Enforcement of Agreement. This Agreement may be enforced by any lot owner or any governmental entity having jurisdiction over the matter, by an action for damages or for injunctive relief to restrain or mandate any action required by this Agreement. The prevailing party in such action shall be entitled to reasonable attorneys' fees and costs. 14. Amendment of Covenants. This Agreement may be sooner amended by unanimous consent of all lot owners; provided, however, that no amendment shall be effective until an instrument setting forth such amendment, signed and acknowledged by all four (4) lot owners, is recorded in the Office of the Garfield County Clerk and Recorder. 15. Severability. Should any provision of this Agreement be declared invalid or unenforceable by a court of competent jurisdiction, such decision shall not affect the validity of any other provisions, which shall remain in full force and effect. 16. Enjoyment of the Property. The lot owners shall be entitled to the quiet enjoyment of their property and shall respect the peace of the other party. Both parties agree to refrain from verbal harassment or abuse of the other party. Entered into on the day and year first written above. C: \ W P511 DOCS \ASPEN. l AG February 21, 1997 By -5- Aspen Sports, Inc. Brett Barnett • • STATE OF COLORADO ) ) ss. COUNTY OF ) Acknowledged, subscribed, and sworn to before me this day of 1997, by Brett Barnett, Vice President, Aspen Sports, Inc. WITNESS my hand and official seal. My Commission expires: C: \ WP51 \ DOCS \ASPEN.1 AG February 21, 1997 -6- Notary Public SHERRY A. CALOIA JEFFERSON V. HOUPT SAMUEL J. LIGHT CALOIA, Hourr & LIGHT, P.C. ATTORNEYS AT LAW March 22, 1996 Mark Bean, County Planner Garfield County Regulatory Office and Personnel Department of Development 109 Eighth Street, Suite 303 Glenwood Springs, CO 81601 Re: Ernie Frywald Exemption Dear Mark: 1204 GRAND AVENUE GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-6067 FACSIMILE: (970) 945-6292 GARFIELD OOLIN Y Enclosed please find a copy of the well permit application, 600 -foot spacing waiver, 600 -foot circle map showing all wells within 600 feet, and the Basalt Water Conservancy District contract for water. Also enclosed please find a copy of a draft Declaration of Covenants that I have prepared for sharing the Well. Because of the restraints of the lots and locations of the wells located on the property, I have applied for an additional well in order to serve all of the development on the property and have augmented that well with water purchased from the Basalt Water Conservancy District contract. We have obtained 600 -foot spacing waivers from all of the wells that are within 600 feet of this proposed location, and therefore I believe there should be no impediment to the granting of a well permit at this location. As you know, we have an existing permitted well located on the property that currently serves the three trailers and the commercial buildings. It is my understanding that there is only water service to one of those commercial buildings. Since all of these items were in existence before 1972, it is my opinion that the use of this well for these purposes is legal and should be recognized by the State. However, in order to avoid any controversy concerning this issue, we have applied for enough Basalt water and a large enough flow rate from the new well in order to service all development on the property, including all of the existing development as well as the new development. I previously submitted to you a report from Tom Zancanella concerning the capabilities of the existing well. We believe that this is adequate evidence that we would obtain water from a second well. I have asked Tom Zancanella to prepare another letter addressing that issue. He will send it to you under separate cover. G: \ W P51 \DOCS\BEAN. I LT CALOIA, HOUPT & LIGIrr, P.. Mark Bean March 22, 1996 Page 2 • The access permit has been filed with the Department of Transportation. I anticipate that the State will act on that permit and hope to have the results of that action to you before April 1. If you have any questions, please do not hesitate to call Leslie Hope at High Country Engineering. Lastly, Ron Liston is working on the variance requirements. He has requested Ernie Frywald's lawyer in Denver to obtain the lease agreements from the railroad in order to ensure that the placement of the three trailers in the right-of-way is authorized by the railroad. We all know that the railroad does not move with lightening speed, and therefore can make no promises as to when those documents will be submitted to the County. However, Mr. Frywald's lawyer has obtained a firm indication from the railroad that they are willing to enter into such an agreement. Because these three trailers are removal structures, moving these structures away from the right-of-way or removing them from the property can be accomplished. Therefore, I do not believe that this issue should hold up the approval of the exemption split of the property in any way. If you have any additional questions or need any additional information, please give me a call. It is my understanding that this matter is set for hearing on April 1 at 3:15 p.m. Very truly yours, CALOIA, HOUPT & LIGHT, P.C. SAC :lin cc: Ernie Frywald Bill Bullock Tom Zancanella, P.E. Leslie Hope, HCE Ron Liston G:\WP5I \DOCS\BEAN. I LT SHERRY A. CALOIA JEFFERSON V. HOUPT SAMUEL J. LIGHT • CALOIA, Hourr & LIGHT, P.C. ATTORNEYS AT LAW July 30, 1996 Mark Bean, County Planner Garfield County Regulatory Office and Perso Department of Development 109 Eighth Street, Suite 303 Glenwood Springs, CO 81601 Re: Ernie Fyrwald Exemption Dear Mark: 1204 GRAND AVENUE GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-6067 FACSIMILE: (970) 945-6292 3 1996 ti GokiiFIELD COMTY VIA FAX I am writing on behalf of Ernie Fyrwald to request an extension of the plat filing deadline for the Frywald Exemption, five miles south of Glenwood Springs. As you know, the Board on April 1, 1996, conditionally approved this exemption, requiring that a plat be presented ,within 120 days of the date of approval. As noted in your April 12, 1996, conditional approval letter, this deadline may be extended up to one year from the date of approval. By this letter, I am requesting that Mr. Fyrwald be granted an extension until April 1, 1997, to complete and present the final exemption plat to the Board. Mr. Fyrwald and his engineers are continuing to analyze and address other conditions of approval, including access off of Highway 82. As these conditions involve many parties and issues, an extension is necessary. I would appreciate your forwarding this request to the Board as soon as possible, and preferably today if the Board is meeting. If you have any questions, or need any additional information, please feel free to contact me or Sam Light. C.1LOI SAC:lln cc: Ernie Fyrwald Bill Bullock Tom Zancanella, P.E. Leslie Hope, HCE Ron Liston FYRWALD-Bean-Itr-1 Very truly yours, UPT & T IGIIT P.C. S'erry A. Cal'ia • • GARFIELD COUNTY Building and Planning April 12, 1996 Sherry A. Caloia 1204 Grand Ave. Glenwood Springs, CO 81601 RE: Subdivision Exemption Conditions of Approval Dear Sherry: On April 1, 1996, the Board of County Commissioners conditionally approved your client's request for a subdivision exemption for property located approximately 5 miles south of Glenwood Springs. The approval was subject to the filing of an exemption plat and completion of the following conditions: 1. All representations of the applicant, either within the application or stated at the meeting before the Board of County Commissioners, shall be considered conditions of approval. A Final Exemption Plat shall be submitted, indicating the legal description of the property, dimension and area of the proposed lots, access to a public right-of-way, and any proposed easements . for setbacks, drainage, irrigation, access or utilities. Additionally, the plat show a sixty (60) foot wide right-of-way for County Road 241 and that the right-of-way be dedicated to the County. 3. That the applicant shall have 120 days to present a plat to the Commissioners for signature, from the date of approval of the exemption. The Board may grant extensions of up to one (1) year from the original date of approval. 4. That the applicant shall submit proof that Fire Impact Fees for the creation of all new exemption parcels have been paid prior to the signing df a plat. 5. That the following plat note be included: "Individual Sewage Disposal Systems can only be used for domestic wastes." 6. The applicant drill a new well meeting the following criteria for demonstrating the quality, quantity and dependability of a well or a shared well system, prior to any plat being signed: 1) A well be drilled and a 4 hour pump test shall be performed; 109 8th Street, Suite 303 945-8212/285-7972 Glenwood Springs, Colorado 81601 • 2) The applicant supply, to the Planning Department, the well completion report demonstrating the depth of the well, the characteristics of the aquifer and the static water level; 3) The results of the 4 hour pump test indicating the pumping rate in gallons per minute and information showing drawdown and recharge shall be submitted to the Planning Department; 4) A written opinion of the person conducting the well test that this well would be adequate to supply water to the number of proposed lots and be submitted to the Planning Department; 5) An assumption of a maximum of 3000 gpd will be used on each lot, based on the maximum design flow of an ISDS on each lot. 6) If the well is to be shared, the provision for individual water storage tanks of no Tess than 1000 gallons for each proposed lot (required at time of building permit application); 7) The water quality be tested by an approved testing laboratory and meet State guidelines concerning bacteria and nitrates. It will also be necessary to have a 20 ft. square easement around the well and a ten (10) ft. wide maintenance and repair easement for a waterline to each of the new lots from the well site easement. If you have any questions regarding these conditions or the exemption plat, do not hesitate to call. Sincerely, Mark L. Bean, Director Building & Planning Department SHERRY A. CALOIA JEFFERSON V. HOUPT SAMUEL J. LIGHT • • CALOIA, HOUPT & LIGHT, P.C. ATTORNEYS AT LAW June 21, 1996 Mark Bean, County Planner Garfield County Regulatory Office and Personnel Department of Development 109 Eighth Street, Suite 303 Glenwood Springs, CO 81601 r/ ; 3is i (MFE :.,U C.A.Autid l 1204 GRAND AVENUE GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-6067 FACSIMILE: (970) 945-6292 Re: Ernie Fyrwald Exemption (Summit House Property) Dear Mark: Enclosed please find a copy of a final well permit issued for this property. I believe you have a copy of the final contract from the West Divide Water Conservancy District. I will be finalizing the Well Sharing Agreement for your review. Additionally, we are making arrangements to have the well drilled and a pump test done so that we can comply with that requirement. matter. Please let me know what the applicable time lines are with respect to completing this Please call with any questions. Very truly yours, CALOIA, HOUPT & LIGHT, P.C. SAC:lin Enclosure cc: Ernie Fyrwald, w/enc. Bill Bullock, w/enc. Tom Zancanella, P.E., w/enc. C:\WP51 \ DOCS \ BEAN .2LT rule' OQTR DIV i i E%aI / 945 a5665 41r,„ 96 15:23 No .0081 .02 GWS -25 COLORAD DIVISION OF WATER RESOURCES 818 Centennial OIdg., 1313 Sherman St., Denver, Colorado 80203 (3303) 8683581 APPLICANT ERNIE FYRWALD %ASPEN SPORTS INC 408 E COOPER AVE ASPEN CO 81611. (970) 925-6334 PERMIT TO CONSTRUCT A WELL RECEIVED MAY 0 3 1996 LIC WELL PERMIT NUMBER 046478 478 F -- DiV. 5 CNTY. 23 WD 38 DES. BASIN MD Lot: Block: Filing: Subdiv: APPROVED WELL LOCATION GARFIELD COUNTY NW 1/4 NW 1/4 Section 7 Twp 7 S RANGE 88 W 6th P.M. DISTANCES FROM SECTION LiNES 207 Ft. from North Section Line 345 Ft, from West Section Line ISSUANCE OF THIS PERMIT DOES NOT CONFER A WATER RIGHT CONDMONS OF APPROVAL This well shall be used in such a way as to cause no material Injury to existing water rights. The issuance of the permit does not assure the applicant that no Injury will occur to another vested water right or preclude another owner of a vested water right from seeking relief in a civil court action. 2) The construction of this well shall be In compliance with the Water Well Construction Rules 2 OCR 402-2, unless approval of a variance has been granted by the State Board of Examiners of Water Well Construction and Pump Installation Contractors in accordance with Rule 18. 3) Approved pursuant to CRS 37.90-137(2) for the construction of a well, appropriating ground water tributary to the Roaring Fork River, as an alternate point of diversion to the Basalt Conduit, on the condition that the well shall be operated only when the Basalt Water Conservancy District's substitute water supply plan. approved by the State Engineer, Is in effect and when a water allotment contract between the well owner and the Basalt Water Conservancy District for the release of replacement water from Ruedi Reservoir Is in effect, or under an approved plan for augmentation, BWCD contract #3.3.5.265. 4) The use of ground water from this well Is limited to domestic and commercial purposes, and the irrigation of 1.05 acres of lawns and gardens, all on a site of approximately 10.3 acres, being that portion of Sections 6 and 7, Twp. 7 South, Rng. 88 West, and that portion of Section 1, Twp. 7 South, Rng. 89 West of the eth P.M., more particularly described on the attached exhibit 'A'. All use of thls well will be curtailed unless the water allotment contract or a plan for augmentation is in effect. 5) 6) The average annual amount of ground water to be appropriated shall not exceed 12.5 acre-feet. 7) A totalizing flow meter must be installed on this well and maintained in good working order. Permanent records of all diversions must be maintained by the well owner (recorded at least annually) and submitted to the Division Engineer upon request. 8) The well must be constructed not more than 200 feet from the location specified on this permit and more than 600 feet from any existing well, except well permit nos. 36168-F, 16994, 28065, and 31706 (have waivers). 9) The owner shall mark the well in a conspicuous place with well permit number(s), name of the aquifer, and court case number(s) as appropriate. The owner shall take necessary means and precautions to preservo these markings. The maximum pumping rate shall not exceed 50 GPM. APPROVED JD2 ;tate Engineer Receipt No. 0397575 DATE ISSUED APR 2 6..1996, EXPIRATION DATIAPR G 6 1997