HomeMy WebLinkAbout3.0 Water & Sewer InformationEXHIBIT A
DRAFT
WATER SUPPLY AND CONNECTION AGREEMENT
THIS WATER SUPPLY AND CONNECTION AGREEMENT ("Agreement") is made
and entered into as of the day of , 2001, by and between BLUE
CREEK LAND HOLDINGS, LLC, a Colorado limited liability company ("Blue Creek"),
ASPEN EQUESTRIAN ESTATES, LLC, a Colorado limited liability company ("AEE"), and
ASPEN EQUESTRIAN ESTATES HOMEOWNERS ASSOCIATION ("AEEHOA");
RECITALS:
A. Blue Creek is the owner of that certain real property located in Garfield County,
Colorado commonly known as Blue Creek Ranch, which property is described on Exhibit "A"
attached hereto and incorporated herein by this reference ("Blue Creek Ranch") together with
certain water rights used in connection with such property; and
B. AEE is the developer of that certain real property located in Garfield County,
Colorado known as the Aspen Equestrian Estates P.U.D., which property is described on Exhibit
"B" attached hereto and incorporated herein by this reference ("AEE Property") together with
certain water rights used in connection with such property; and
C. Within the AEE Property and shown on the recorded plat thereof is a parcel of
land described and known as the "Equestrian Parcel," which is owned by AEE ("Equestrian
Parcel"); and
D. Within the AEE Property and shown on the recorded plat thereof are common
areas of open space and roads owned by the AEEHOA ("AEEHOA Common Area"); and
E. Located primarily upon the Equestrian Parcel is a water storage tank, a water
treatment plant and related facilities owned by AEEHOA (collectively the "Plant") and located
upon the AEEHOA Common Area is an existing underground water well owned by AEEHOA
connected to the Plant, all of which structures and facilities are utilized by AEEHOA for the
provision of treated water for domestic in-house and associated irrigation use to the single-family
residences and other structures and uses located upon the AEE Property, for fire flows, and for
treated water service to the Equestrian Parcel; and
F. AEE has conveyed an easement to AEEHOA for the Plant site located on the
Equestrian Parcel and such easement is shown on the recorded plat of the AEE Property ("Plant
Site"); and
G. In the conveyance of the Plant and water supply system improvements and the
grant of the easement for the Plant Site to AEEHOA, AEE has reserved unto itself the right to
make the Plant available to third parties and to receive compensation and cost recovery therefore
in accordance with such documents of transfer; and
W:\Lane&Cumming\591A\Docs\Water Service Agreement AEE & Blue Creek CLEAN 03.doc
H. Blue Creek desires to receive treated water from the Plant for in-house domestic
and associated irrigation use by those single-family residences and other structures and uses that
may be constructed on Blue Creek Ranch; and
I. AEE and AEEHOA are willing to provide such treated water service to Blue
Creek, pursuant to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements made herein, Blue
Creek, AEE and AEEHOA agree as follows:
1. Treated Water Service to Blue Creek Ranch. Subject to the terms and conditions of
this Agreement, AEE and AEEHOA hereby agree to allow Blue Creek to connect to the Plant
and agree to supply treated water to Blue Creek Ranch and any development constructed thereon
for domestic in-house and associated irrigation use, and other authorized structures and in -
building uses.
2. Water Connection Fees; Attorney Fees. Upon the full execution of this Agreement,
Blue Creek shall pay to AEE a one-time payment of one hundred seventy-five thousand dollars
($175,000.00) in consideration for the right to connect its facilities to the Plant and receive
treated water therefrom in accordance with the terms and conditions of this Agreement (the
"Water Connection Fee"). As of the date hereof, Blue Creek has paid the amount of five
thousand dollars ($5000.00) to AEE to review and enter into the negotiations for this Agreement,
payment of which is acknowledged by AEE. Subsequent to the payment of the Water
Connection Fee and provided Blue Creek has met its obligations under Paragraph 12 below with
respect to obtaining legal water rights and/or permit approvals, Blue Creek shall be entitled to
make physical connection to the Plant and be provided with a treated water supply as set forth
herein. In addition to the Water Connection Fee, Blue Creek agrees to pay all of AEE's
reasonable attorneys' fees incurred in the negotiation and review of this Agreement, as well as
reasonable attorneys' fees incurred in the negotiation and review of any other documents and/or
agreements necessary for the implementation of this Agreement (except for documents or
agreements that would have been or were required to be prepared despite this Agreement),
partial payment of which has been made by Blue Creek to AEE as of the date hereof and is
hereby acknowledged by AEE. At AEE's option and discretion, Blue Creek shall pay any
applicable attorney fees within fifteen days of the date of invoice thereof or deposit estimated
fees to be incurred in advance in an escrow account with an escrow agent mutually agreed upon
by Blue Creek and AEE.
3. Refund of Water Connection Fee. Blue Creek is in the process of obtaining certain
land use approvals from Garfield County for the subdivision of Blue Creek Ranch. In the event
that Blue Creek does not obtain the approvals it requires or otherwise desires to terminate this
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granted by this Agreement, Blue Creek shall be entitled to terminate this Agreement upon
written notice to AEE ("Notice of Termination"). Within thirty days after such Notice of
Termination is given, AEE shall refund to Blue Creek the Water Connection Fee, less a certain
sum of money as determined in accordance with the schedule of reimbursement described as
follows. If Blue Creek provides Notice of Termination on or before 5:00 p.m., on December 31,
2001 ("First Refund Deadline"), then AEE shall refund to Blue Creek the Water Connection Fee,
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less ten thousand dollars ($10,000.00). If Blue Creek provides Notice of Termination after the
First Refund Deadline but on or before 5:00 p.m., on December 31, 2002 ("Second Refund
Deadline"), then AEE shall refund to Blue Creek the Water Connection Fee, less ten thousand
dollars ($10,000.00) and less an additional ten thousand dollars ($10,000.00) for every quarter of
the year that has elapsed (in the year in which the Notice of Termination is given) prior to the
Notice of Termination. If Blue Creek provides Notice of Termination after the Second Refund
Deadline but on or before 5:00 p.m., on December 31, 2003 ("Third Refund Deadline"), then
AEE shall refund to Blue Creek the Water Connection Fee, less fifty thousand dollars
($50,000.00) and less an additional twenty thousand dollars ($20,000.00) for every quarter of the
year that has elapsed (in the year in which the Notice of Termination is given) prior to the Notice
of Termination. For purposes of this Agreement and refund provision, "quarter" means a three
month period of time beginning immediately after the preceding three month period and ending
at midnight on the last day of the third month in such period. Once a "quarter" begins, the sum
of money corresponding with that quarter is not refundable or pro-ratable under this Agreement.
The first quarter of a particular year begins immediately after the expiration of the previous
Refund Deadline. By way of example, if Blue Creek were to provide Notice of Termination at
any time within the first quarter after the First Refund Deadline, AEE would refund the Water
Connection Fee, less $20,000.00 ($10,000 for the first year and $10,000 for one quarter of the
second year).
4. Master Water Association. It is contemplated that Blue Creek, AEE and AEEHOA
shall form a master water association that shall govern, control, maintain and operate the water
system for both Blue Creek Ranch and the AEE Property (the "Water Association"). The Water
Association shall be responsible for adopting rules and regulations governing water usage within
both developments, billing all water users within both developments an equal charge for water
usage and reserve for replacement costs, and operating, maintaining, improving, repairing,
replacing and taking such other necessary and prudent actions with respect to the Plant and all
treated water supply, storage, transmission and distribution facilities and improvements within
both developments ("Water System Infrastructure"). It is agreed and acknowledged that the
Board of Directors for such Water Association shall consist of two members and an alternate
member appointed from Blue Creek or from the homeowners association for Blue Creek Ranch
upon the formation of such homeowners association; and two members and an alternate member
appointed from the AEEHOA. The Board of Directors shall have such powers including, but not
limited to, deciding and acting upon all Water System Infrastructure matters. Such
"infrastructure matters" include, but are not limited to, proposals for water system infrastructure
or facilities repair, replacement, maintenance, construction, extension, cleaning, operation,
monitoring and management. All Board of Director decisions, including, but not limited to, all
"infrastructure matters," management, control and operation decisions, shall be made by not less
than a 75% vote of the Board of Directors. If a 75% vote cannot be reached on a matter or
question submitted for a vote, then the matter shall be submitted to a qualified, third-party
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recommendation shall be binding and shall have the same effect as if action on the proposed
matter received a 75% affirmative vote of the Board of Directors. All homeowners within Blue
Creek Ranch and the AEE Property shall be subject to and shall comply with any and all rules
and regulations adopted by the Water Association. The parties agree to provide for compliance
with such rules and regulations in the master declarations of covenants, conditions, and
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restrictions for their respective properties. The Water Association shall be formed jointly by the
parties and articles of incorporation for the Water Association shall be filed with the Secretary of
State within thirty (30) days from the full execution of this Agreement.
5. Installation of Blue Creek Facilities. Upon payment of the Water Connection Fee to
AEE, Blue Creek shall be responsible, at its sole cost and expense, to design, construct and
install any and all water lines, pipes, pumps, valves, meters, and other related facilities and
improvements required to deliver treated water from the Plant to Blue Creek Ranch (the "Blue
Creek Facilities"). All water lines, pipes and related facilities to be constructed shall be
equivalent to and compatible with existing AEEHOA water lines and facilities. Blue Creek shall
be responsible for connecting the Blue Creek Facilities to the Plant at that eight -inch (8") valve
located at the entrance to the AEE Property, as shown more fully on the Plans and Specifications
(the "Point of Delivery"). The Water Association shall have the right to inspect the connection
of the Blue Creek Facilities to the Plant to insure that such connection has been constructed in
accordance with acceptable engineering standards.
6. Easement for Blue Creek. Effective upon the full execution of this Agreement, AEE
and AEEHOA hereby grant to Blue Creek a temporary construction easement on, over and
across that portion of the AEE Property between Blue Creek Ranch and the Plant in order to
allow Blue Creek to construct and install the Blue Creek Facilities thereon at the location
graphically shown on Exhibit "C" attached hereto and incorporated herein by reference.
Immediately upon final construction and installation of the Blue Creek Facilities, AEEHOA shall
grant to Blue Creek a perpetual non-exclusive easement ten (10) feet on either side of the center
line of the Blue Creek Facilities and the existing water line from the Plant to the Point of
Delivery; and AEE shall grant to Blue Creek a perpetual non-exclusive easement to the Plant
Site and the Plant, which are located on the AEE Property. The easements are for purposes of
accessing, operating, maintaining, repairing, improving, replacing and distributing treated water
through said facilities (the "Easements"). A copy of the Easements are attached hereto as
Exhibit "D" and incorporated herein by this reference. Upon final construction and installation
of the Blue Creek Facilities the parties agree to execute the Easements. The attorneys for Blue
Creek Ranch or an escrow agent designated by both parties shall hold the Easements until the
legal description for the Blue Creek Facilities on the AEE Property is prepared by Blue Creek.
Once the Blue Creek Facilities have been installed, Blue Creek shall have a legal description
prepared for the Blue Creek Facilities installed on the AEE Property. The legal description shall
be approved by the parties, which approval shall not be unreasonably withheld, provided the
location of the Easements are substantially similar to that shown on Exhibit "C." It shall then be
attached to the Easements and the Easements shall be recorded in the Garfield County real estate
records. These Easements shall thereafter be conveyed to the Water Association in accordance
with Paragraph 7 herein. To the extent any of the Blue Creek Facilities are ever required to be
relocated upon the AEE Property in order to continue the water service set forth herein, AEE,
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the Facilities to a location which does not adversely affect the present or then reasonably
foreseeable development or redevelopment of the AEE Property, and in the preparation of an
amendment of the legal description of the Easements to reflect the relocated facilities. Any such
amended legal description to the Easements shall be recorded in the Garfield County real estate
records.
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7. Conveyance of AEE Plant, Water Infrastructure, Water Rights & Easements to
Association; Insurance. Upon final connection of the Blue Creek Facilities to the Plant,
AEEHOA shall transfer and convey the Plant, and both AEEHOA and Blue Creek shall transfer
and convey all improvements, components and facilities they respectively own related to the
Water System Infrastructure, to the Water Association, free and clear of any and all
encumbrances. Upon final connection of the Blue Creek Facilities, AEE, AEEHOA and Blue
Creek shall also convey to the Water Association any and all easements and rights-of-way
necessary for the Water Association to enter onto the AEE Property and/or Blue Creek Ranch for
purposes of operating, maintaining, improving and repairing the Water System Infrastructure.
AEE, AEEHOA and Blue Creek shall also convey, transfer and/or assign to the Water
Association any and all well permits, water court approvals, water rights, replacement water
sources and Basalt Water Conservancy District contracts utilized or associated with the provision
of treated water to the AEE Property and Blue Creek Ranch, with the exception of any rights,
contracts, permits or approvals related to the Pinto Well for use on the Equestrian Parcel, which
well and associated rights shall be owned and held separately by AEE. The Water Association
shall thereafter be responsible for operating, maintaining, repairing and replacing the Plant and
all other related facilities and Water System Infrastructure, and any and all obligations of AEE,
AEEHOA and Blue Creek in connection with the Water System Infrastructure, unless otherwise
set forth herein, shall become those of the Water Association. The Water Association shall be
obligated to obtain and maintain property and liability insurance related to the Water System
Infrastructure in the minimum amount of $1,000,000 and $2,000,000, respectively, and shall
cause AEE, AEEHOA, Blue Creek and Blue Creek Homeowners Association (when formed) to
be named as co-insured on the liability insurance.
8. Water Service to Blue Creek Ranch and AEE Property. Upon the completion of the
final connection of the Blue Creek Facilities to the Plant, the Water Association shall provide
treated water service to Blue Creek Ranch and to the AEE Property, expressly including the
Equestrian Parcel, consistent with the provisions set forth in this Agreement. The average annual
treated water demand for the AEE Property has been calculated to be 36.4 acre-feet as shown on
the attached water requirements table, attached hereto and incorporated herein as Exhibit "E"
("AEE Water Demand"). The average annual treated water demand for Blue Creek Ranch has
been calculated to be 34.2 acre-feet as shown on the attached water requirements table, attached
hereto and incorporated herein as Exhibit "F" ("Blue Creek Water Demand"). Either
development may exceed its respective Water Demand so long as there is capacity available in
the water system. The AEE Property shall have the first right and priority of service up to 36.4
acre-feet of annual water demand produced from the AEE Water Rights. Blue Creek Ranch shall
have the first right and priority of service up to 34.2 acre-feet of annual water demand produced
from the Blue Creek Water Rights. To the extent both AEE Water Rights and Blue Creek Water
Rights are utilized, it is assumed and agreed that AEE Water Rights are utilized first for the
service of AEE Water Demand and then Blue Creek Water Demand; and the Blue Creek Water
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Water Demand or Blue Creek Water Demand will require amendment of this Agreement. Water
service by the Water Association hereunder shall be appurtenant to the AEE Property and Blue
Creek Ranch and shall not be transferable by AEE, AEEHOA, Blue Creek or a Blue Creek
1.
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this Paragraph shall be delegated to and assumed by the Water Association, so long as the Water
Association remains in existence.
9. Water Service Fees. Following connection of the Blue Creek Facilities to the Plant
and conveyance of the Blue Creek Facilities to the Water Association, the Water Association
shall charge water service fees to all AEE Property and Blue Creek Ranch lot or parcel owners.
All lot or parcel owners within the AEE Property and Blue Creek Ranch shall be charged the
same basic water service rate as set by the Water Association, which charges for water service
shall be submitted directly by the Water Association to each lot or parcel owner within both
developments. The Basic Rate shall be established in an amount per EQR used that covers all
costs associated with the Plant and Water System Infrastructure, including, without limitation,
operations, permitting, maintenance, repair and replacement of the Plant and Water System
Infrastructure, including a reasonable reserve. For purposes of establishing the basic water
service fee, each single family residential lot on AEE Property and Blue Creek Ranch shall be
assumed to require one EQR, defined as 350 gallons per day (based on 3.5 people each using 100
gallons per day) and water demand for up to 2,500 square feet of lawn and garden irrigation.
The basic water service fee for non-residential uses shall be established by comparing the
estimated (or actual, if the information is available) water requirement for such use to the water
requirement for one EQR and adjusting the service fee accordingly. The Water Association shall
have the power to charge a surcharge water service fee for water usage by a lot or parcel owner
over the set water amount associated with the basic water service fee for such user. The Water
Association shall also have the power to shut-off or curtail such over -usage by a lot or parcel
owner. The Water Association may charge a stand-by fee to residential lot owners where a water
line is installed and ready for connection to the residential lot but is not so connected.
10. Use of Water. Upon delivery of water to residences or other uses within the AEE
Property and Blue Creek Ranch, use of water by the individual homeowners and/or other users
shall be monitored by individual water meters installed on each residence and/or water -using
structure. Such individual meters shall be required by the parties hereto. Each water user within
both developments shall thereafter be obligated to pay for the amount of water delivered to the
respective lots or structures as recorded by its individual meter pursuant to the rates and
regulations adopted by the Water Association in accordance with the above Water Service Fees.
Each lot owner and water user within Blue Creek Ranch and the AEE Property shall enter into a
water service contract with the Water Association which shall set forth specific terms and
provisions related to water delivery, water usage, payment obligations, and other related matters.
Blue Creek intends to provide raw water to Blue Creek Ranch through its irrigation water rights
and associated ditch system for the additional irrigation of lands within Blue Creek Ranch. Blue
Creek will assure that there will be no cross -connections between the Blue Creek Facilities and
other treated water facilities owned by individual residences and the raw water irrigation system.
source of water supplied to the Plant to serve Blue Creek Ranch and the AEE Property shall be
from two wells located upon the AEE Property known as the Appaloosa Well and the Arabian
Well, permitted under SEO Well Permit Nos. 053322-F and 053323-F, respectively (the "AEE
Water Rights"). The AEE Water Rights are covered by Basalt Water Conservancy District
Contract #343 (the "Contract"). At the time of the execution of this Agreement, the Appaloosa
Well is constructed and operational, while the Arabian Well was not contemplated to be
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constructed and made operational until such time as the AEE Property reached fifty percent
(50%) of build out. If and when it becomes necessary to drill and connect the Arabian Well, in
the discretionary opinion of the Water Association, the cost of constructing the Arabian Well and
connecting it to the Plant shall be borne solely by Blue Creek or the Blue Creek homeowners'
association. The parties hereto recognize and agree that it will be necessary to re -permit and/or
obtain "second" well permits for the AEE Water Rights, as well as, an amendment to the
Contract or an additional Basalt Water Conservancy District water allotment contract, in order to
obtain legal authorization to service Blue Creek Ranch ("Re -permitting Requirements"). The
fees and costs for such Re -permitting Requirements shall be borne solely by Blue Creek. AEE
shall assign the Appaloosa and Arabian Well Permits and the Contract, as amended, to the Water
Association subsequent to the formation of the Water Association, and subsequent to completion
of the Re -permitting Requirements, after which the Water Association shall at all times keep the
Contract and well permits current and in full force and effect. The Water Association shall be
responsible for securing other Basalt Water Conservation District water supply contracts or other
sources of augmentation for the AEE Water Rights, including obtaining Water Court decreed
water rights and obtaining a Water Court plan for augmentation for the AEE Water Rights, if
such actions are necessary or required in the future. To the extent fees are incurred or paid in
connection with such other contracts, permits or Water Court approvals, the Water Association
shall pass the costs of the same to the consumers in both developments as a part of the water
service rates. The parties hereto agree that the Water Association shall have a first right of use of
the AEE Water Rights and the water produced thereby upon formation of the Water Association
and continuing for the duration of this Agreement.
12. Additional Water Supply. In the event of an emergency, water shortage, or any
other situation which results in the AEE Water Rights not producing sufficient physical water to
provide the water service to both Blue Creek Ranch and the AEE Property as provided herein,
the parties agree and acknowledge that the parties shall be obligated to construct one or two
wells, as needed, on Blue Creek Ranch in order to provide a back-up supply of water to Blue
Creek Ranch and the AEE Property ("Blue Creek Water Rights"). Such determination of
insufficient physical supply shall be made by the Water Association. To the extent such well(s)
are required to be constructed, the cost of construction and connection thereof, in addition to the
cost of any required legal and engineering work, and permitting, contracting or Water Court
approvals in connection with the well(s), shall be split equally between the two parties. Blue
Creek shall cooperate with the Water Association to provide reasonable access to the Water
Association for connection to the Blue Creek Water Rights and for the connection of such rights
to the Plant. To the extent the Blue Creek Water Rights are not sufficient enough to provide an
adequate supply of water to the Blue Creek Ranch and/or the AEE Property upon a failure of the
AEE Water Rights to do so, AEE and Blue Creek shall be obligated to secure any and all other
water rights or sources in order to ensure adequate water supply to Blue Creek Ranch and the
AEE Property, and the costs thereof shall be split equally between the parties.
13. Operation, Maintenance and Repair. Upon installation of the Blue Creek Facilities
by Blue Creek, the Water Association shall thereafter be solely responsible for operating,
maintaining, repairing, improving, and replacing the Plant and the Water System Infrastructure
and any facilities required to be constructed in the future as contemplated herein, and for
collecting for all costs associated therewith. AEE and Blue Creek shall provide in the protective
covenants of its respective homeowners' associations that such associations shall include as a
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cost of which they can place a lien on the lots of their respective members, the charges payable
under this Agreement by an owner who is delinquent in the payments to the Water Association
and shall upon request of the Water Association, foreclose such lien and collect such delinquent
payments, together with interest thereon at the rate of eighteen percent (18 % per annum) and
collect costs and attorney fees. Unless set forth otherwise in this Agreement, the costs associated
with the obligations set forth above shall be assessed equally to the parties hereto and/or the
homeowners within such developments by the Water Association. In the event it is ever
determined by a qualified engineer that a third pump should be added to the Plant in order to
continue to provide the water service to the AEE Property and Blue Creek Ranch as provided
herein, or to expand such service as may be agreed upon by the parties, Blue Creek agrees that it
or its successors and assigns shall be responsible for paying for such pump and its installation at
the Plant. The Water Association shall keep the Plant and the Water System Infrastructure and
all future facilities in good working order at all times and ensure that the Plant is at all times
capable of providing the AEE Property and Blue Creek Ranch treated water supply.
14. Additional Water Users. The parties agree that nothing herein shall prevent AEE
from making the Plant available for providing treated water to other properties and for receiving
compensation therefore provided however, AEE agrees that it shall provide competent
engineering that shows that any such additional service through the Plant demonstrates that such
additional usage shall not have an adverse impact upon the ability of the Plant to provide
sufficient treated water to Blue Creek Ranch or the AEE Property as provided herein. If such
additional water service is to be considered, the parties agree that as a condition to AEE offering
such service, the third party must contribute and provide sufficient physical and legal water
supplies to support such additional water service, similar in scope and extent as required of the
parties herein. If it is determined that such additional water service will be provided, Blue Creek
shall not be responsible for any payment for any improvements or upgrades to the Plant to
increase its capacity to avoid any such adverse impact. Notwithstanding any provisions in
Paragraph 11 to the contrary, such improvements shall include the purchase and installation of a
third pump or written determination from a competent engineer that such pump is not necessary
to maintain the level of service provided to Blue Creek Ranch and the AEE Property prior to the
additional service. Blue Creek and/or a Blue Creek homeowners' association and AEEHOA
shall have no obligation in the future to pay through increased service fees for any expansion,
upgrade or other improvements to the Plant due to the expanded use thereof, or to provide or
make available the Blue Creek Wells for any additional user of the Plant. Notwithstanding the
above, the parties agree that should a third party hereafter connect to the Plant and receive water
service, Blue Creek shall be entitled to recover from such third party its actual costs and fees
associated with constructing and installing the Arabian Well and/or a third pump; and both Blue
Creek and AEEHOA shall be entitled to recover its respective share of the actual costs and fees
associated with constructing and installing one or more of the Blue Creek Wells. All recoverable
costs and fees may be escalated at the rate of 3% per year from the date of completion of these
structures.
15. Representations and Warranties of AEE and AEEHOA. AEE and AEEHOA hereby
represent and warrant to Blue Creek, as of the date hereof and again as of the date that Blue
Creek connects to the Point of Delivery, that to the best of their knowledge:
a. AEE and AEEHOA have full right, power and authority to grant the water
service contemplated herein to Blue Creek and to enter into this Agreement and the various other
agreements and documents contemplated herein, and that the provision of the water service and
the entering into of this Agreement and such other agreements and documents shall not violate
any other agreement, arrangement, restriction or other matter to which AEE and/or AEEHOA are
a party; and
b. AEEHOA owns the Plant, water rights, water permits, easements and other
water system improvements located on the AEE Property free and clear from any and all
encumbrances and liens of any kind, or in the alternative, has or will within sixty (60) days
following execution of this Agreement, obtained a release or sufficient subordination(s) in
recordable form from any senior lienholder(s) releasing or subordinating such liens or interests to
AEEHOA ownership and to this Agreement. The parties hereto shall not encumber the Plant, the
easements, the water rights or other water system improvements with any debt or obligation of
any kind following the execution of this Agreement by the parties except if such debt or
obligation is subject to the terms of this agreement or if the encumbering party obtains the
consent of the other non -encumbering parties to this Agreement. No Interference. AEE,
AEEHOA and Blue Creek agree that neither of them shall undertake any action or, to the extent
they are affirmatively obligated to prevent an action to occur to allow any condition to exist that
interferes with the uninterrupted delivery of water to either of their properties.
16. Breach of Contract; Default. In the event of a breach of any of the terms and
conditions of this Agreement, the non -breaching party shall give the party or parties in default
written notice of said breach and a thirty (30) day right to cure; provided, however, that if it is
determined in any of the parties sole discretion that the cure of any breach by the other party is
immediately necessary in order to protect the health, safety, and welfare of any of the water
users, the 30 -day cure period set forth above shall not apply. In the event the breaching party has
not cured said default within the 30 -day period, or begun the diligent undertaking of good faith
efforts to cure the default, within the 30 day period, the non -breaching party may bring an action
in the Garfield County District Court for damages, mandatory injunctive relief, and/or specific
performance and, if determined to be the prevailing party, shall be entitled to recover from the
other party reasonable attorneys' fees and costs expended in connection with such action.
17. Assignment. Blue Creek shall have the right, without the consent of AEE and
AEEHOA, to assign all or a portion of its right, title and interest in this Agreement to any other
party that is a successor in ownership to all or any portion of Blue Creek Ranch, and to any
homeowners' association formed to govern all or any portion of Blue Creek Ranch, so long as
any such assignee shall assume in writing Blue Creek's obligations hereunder and, to the extent
that all of such obligations are assigned, Blue Creek is released from any responsibility for such
obligations subsequent to the assignment thereof. AEE shall have the right, without the consent
of Blue Creek, to assign all or a portion of its right, title and interest in this Agreement to any
other party that is a successor in ownership to all or any portion of the AEE Property, and to any
homeowners' association formed to govern all or any portion of the AEE Property, so long as any
such assignee shall assume in writing AEE's obligations hereunder and, to the extent that all of
such obligations are assigned, AEE is released from any responsibility for such obligations
subsequent to the assignment thereof. AEEHOA shall have the right, without the consent of Blue
Creek or AEE, to assign all or a portion of its right, title and interest in this Agreement to any
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other party that is a successor organization or homeowners' association, so long as any such
assignee shall assume in writing AEE's obligations hereunder and, and has the power and
authority to meet those obligations, and to the extent that all of such obligations are assigned,
AEEHOA is released from any responsibility for such obligations subsequent to the assignment
thereof.
18. Termination of Water Association. The parties recognize that the provision of water
service to Blue Creek Ranch and the AEE Property is a vital necessity. Therefore, it is
understood that in the event the Water Association is terminated, dissolved or caused to cease
existence for any reason, the Water Association shall convey undivided interests to Blue Creek
(or the Blue Creek homeowners' association, if formed) and AEEHOA, their successors and
assigns, without any consideration, the various components of the Water System Infrastructure,
the Plant, and the water rights/interests, respectively, together with any and all easements and
other assets and rights of the Water Association in order that the parties can continue to provide
water service to the homeowners within each development. Thereafter, the AEE homeowners
association and the Blue Creek homeowners association shall be equally responsible for
operating, maintaining, repairing, improving and replacing the Water System Infrastructure. In
such event, the respective homeowners' associations shall abide by the obligations and
agreements contained in this Agreement until such time as this Agreement is terminated or
amended to provide otherwise.
19. No Conveyance or Encumbrance. Neither AEE nor Blue Creek shall sell, convey,
transfer, hypothecate, lease, loan, or encumber the AEE Water Rights or the Blue Creek Water
Rights, respectively, without the express written consent of the other party.
20. Indemnification. The parties agree to indemnify, defend, and hold the other
harmless from any and all claims, liabilities, injuries, deaths, suits, causes of action or losses of
any nature whatsoever incurred by either party resulting from any activity undertaken by such
party on the property of the other pursuant to this Agreement. The parties hereto intend not to
duplicate any legal services or other costs associated with the defense of any claims against
either party described in this section. Therefore, the parties hereto agree to cooperate in full to
prevent duplicative expenses incurred as a result of the indemnification herein described.
21. Notice. All notices required under this Agreement shall be in writing and shall be
hand -delivered or sent by facsimile transmission or registered or certified mail, return receipt
requested, postage prepaid, to the addresses of the parties herein set forth. All notices by hand
delivery shall be effective upon receipt. All facsimile transmissions shall be effective upon
transmission receipt. All notices by mail shall be considered effective seventy-two (72) hours
after deposit in the United States mail with the proper address as set forth below. Either party by
notice so given may change the address to which future notices shall be sent.
Notice to Blue Creek:
Blue Creek Land Holdings, LLC
c/o Rob Cumming
3220 County Road 100
Carbondale, CO 81623
With Copy To: Holland & Hart, LLP
10
Notice to AEE:
With Copy To:
c/o Shane J. Harvey, Esq.
600 E. Main Street
Aspen, CO 81611
Phone: (970) 925-3476
Fax: (970) 925-9367
Aspen Equestrian Estates, LLC
c/o Jay Weinberg
PO Box 4788
Aspen, CO 81612
Klein-Zimet P.C.
c/o Herb Klein, Esq.
201 N. Mill
Aspen, CO 81611
Phone: (970) 925-8700
Fax: (970) 925-3977
22. Miscellaneous Provisions.
a. This Agreement shall be construed under, and in accordance with, the laws of
the State of Colorado.
b. This Agreement shall be binding upon and inure to the benefit of Blue Creek,
AEEHOA and AEE and their respective legal representatives, successors and assigns.
c. In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never been contained
herein.
d. This Agreement constitutes the sole and only agreement of Blue Creek,
AEEHOA and AEE with respect to the Plant, Water System Infrastructure and water service
herein and supersedes any prior understandings or written or oral agreements between Blue
Creek, AEEHOA and AEE with respect to the matters contained herein. This Agreement may
not be amended or modified except by written agreement signed by Blue Creek or its successors
and assigns, including a Blue Creek homeowners' association, and AEE or its successors and
assigns, and AEEHOA or its successors and assigns.
_1. rT'rT \ _ 1 A rr _1 .1. t_ _ _ 1 c..:.-1_ 1't
L 1.1_.L11VL l U11LLL 1LL �1ll.U5.. LV LttLSIJ�. LL 1L. 11 UVJL r`,V VU 1LLa Lal ,aava L..
to act in a timely and reasonable manner to fulfill their obligations hereunder.
f. Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to include the plural,
and vice versa, unless the context requires otherwise.
11
g. The section headings utilized herein are for reference purposes only and are
not intended in any way to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any part hereof.
h. The failure by either Blue Creek, AEEHOA or AEE to enforce against the
other party any term or provision of this Agreement shall be deemed not to be a waiver of the
right of either Blue Creek, AEEHOA or AEE to enforce against the other party the same or any
other such term or provision.
i. This Agreement may be executed in multiple originals or counterparts, each of
which shall be an original and, when Blue Creek, AEEHOA and AEE have each signed and
provided to the other party at least one (1) copy, such copies together shall constitute a fully
executed and binding agreement. Signatures transmitted by facsimile shall be binding as original
signatures.
j. If either Blue Creek (or a Blue Creek homeowners' association), AEEHOA or
AEE files any action or brings any proceeding against the other arising out of this Agreement,
then as between Blue Creek (or a Blue Creek homeowners' association), AEEHOA and AEE, the
substantially prevailing party shall be entitled to recover, as an element of its costs of suit and not
as damages, reasonable attorneys' fees to be fixed by the court. A party not entitled to recover its
costs shall not recover attorneys' fees. No sum for attorneys' fees shall be counted in calculating
the amount of a judgment for purposes of determining whether a party is entitled to attorneys'
fees.
k. Nothing herein contained shall be deemed or construed by the parties hereto
or by any third person to create the relationship of principal or agent or of partnership or joint
venture or of any association between AEE, AEEHOA and Blue Creek, except as parties to this
Agreement.
IN WITNESS WHEREOF, Blue Creek, AEEHOA and AEE have executed this
Agreement as of the date first above written.
BLUE CREEK:
BLUE CREEK LAND HOLDINGS, LLC, a Colorado limited liability company
By: LANE INDUSTRIES, INC., a Delaware corporation, its sole manager
By:
Name:
Title:
12
By:
Name:
Title:
By:
Name:
Title:
Attest:
AEE:
ASPEN EQUESTRIAN ESTATES, a Colorado limited liability company
AEEHOA:
ASPEN EQUESTRIAN ESTATES HOMEOWNERS' ASSOCIATION
I'IMR-✓J1-GCJtX) 1..1- • JG L 1 v wtt i .r rtcJuurl.GJ
Form No. OFFICE OF THF —TATE ENGINEER
GWS -25 COLORADO al Bldg., 3DIS e 10N OFL WATERlorado RESOURCE,
Centen(303)86e-3581
Arabian Well
APPLICANT
JVJ VVV .J..:VJ
WELL PERMIT NUMBER 053 2 -
DIV. 5 WO 38 DES. BASIN MD
I . VG• V.J
EXHIBIT B
1095
Loi gloeic: Flung Subdly- ASPEN EQUESTRIAN ESTATES
ES
APPR VED WELL LOCATION
GARFIELD COUNTY
ASPEN EQUESTRIAN ESTATES SE 1/4 NW 1/4 Section 31
3275 CO RD 100 Township 7 S Range 87 W Sixth P.M.
CARBONDALE. CO 81623- OISTAN ES =ROM SE TlCN L'.N
1748 Ft. from North Section Line
(970) 963-9397 1757 Ft. from West Section Line
PERMIT TO CONSTRUCT A WELL
ISSUANCE OF i r.;S PER,,117 DOES NOT CONFER A WATER RICHT
CONDITIONS OF APPROVAL
1) This well shad be used in such a way as to cause no material injury to existing water rights. The issuance of this 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 welt shall be in compliance with the Water Weil Construction Rules 2 CCR 402-2, unless approval
of a variance has been granted by the State Board of Examiners of Water Well Construction and Pump lnstailation
Contractors in accordance with Rule 18. round water tributary to 'he Roaring
3) Approved pursuant toCR5 37-90-137(2) for the construction of a well, appropriating g
Fork River, as an attemate point of diversion to the Basalt Conduit, on the c.ondition teat me State llall be operated
Engineer, ionly aria
when the Basalt Water Conservancy District's substitute water supply plan, app bytd for the release effect
when a water allotment contract between the well owner and the Basalt Water Conservancy
of
replacement water from Ruedi Reservoir is in effect, or under an approved plan for augmentation. BWCD contract 70343.
4) The use of ground water from this well is limited to ordinary household purposes inside 47 single family dwellings and
three employee dwellings. the irrigation of not more than 3.4 acres of gardens and lawns, the watering of livestock, and
commercial uses associated with an equestrian facility. All use of this weft will be curtailed unless the water allotment
contract or a plan for augmentation is in effect.
5) The simultaneous maximum pumping rate of this well and any other well operating under BWCD contract #343 shall not
exceed 100 GPM.
6) The combined annual amount of ground water to be appropriated bythis well and any other well operating under 9WCD
contract 4343 shall not exceed 36.4 acre-feet This well is {clown as the Arabian Weil.
7) The owner shall mark the well in a conspicuous place with well permit number(s), name of the aquifer, and court case
numbers) as appropriate. The owner snail take necessary means and precautions to preserve :hese markings.
8) This well shalt be constructed not more than 200 feet from the location specified on this permit and not less than 600 feet
from any existing west, not owned by the applicant
9) A totalizing `low 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 ^� 3.f-?J7b
APPROVED
JC2
,Receipt No. 0453792B
Stare Engineer
DATE ISSUED MAR U
as.
411?
3y J MAR01 20 1
EXPIRATION DATE
I lnr-Vl"�VVV 1G• JJ
y 1 V wn , L .%
Form No. OFFICE OF THE STATE ENGINEER
GWS -25 COLORADO 'ISION OF WATER RESOURC 3
818 Centennial Bldg., 13 ,nennan St, Denver, Colorado 80203
(303) 866-3581
Appaloosa Well
APPLICANT
1095
WELL PERMIT NUMBER 053:322
DN. 5 WD 38 DES. BASIN MD
Lot: Mock: Filing: Subdiv: ASPEN EQUESTRIAN ESTATES
APPROVED WELL LOCATION
GARFIELD COUNTY
SE 1/4 NW 114 Section 31
Township 7 S Range 87 WSixth P.M.
ASPEN EQUESTRIAN ESTATES
3275 CO RD 100
CARBONDALE, CO 81623-
(970) 963-9397
PERMIT TO USE AN EXISTING WELL
ISSUANCE OF THIS PERMIT DOES NOT CONFER A WATER RIGHT
CONDITIONS OF APPROVAL
1j This well shall be used in such a way as to cause no material injury to existing water rights. The issuance of this 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 CCR 402-2, unless approval
of a variance has been granted by the State Board of Examiners of Water Welt Construction and Pump Installation
Contractors in accordance with Rule 18.
3) Approved pursuant to CRS 37-90-137(2) for the use of an existing 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 shalt 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 #,343.
4) The use of ground water from this well is limited to ordinary household purposes inside 47 single family dwellings and
three employee dwellings, the irrigation of riot more than 3.4 acres of gardens and lawns, the watering of livestock, and
commercial uses associated with an equestrian facility. All use of this well will be curtailed unless the water allotment
contract or a plan for augmentation is in effect.
5) The simultaneous maximum pumping rate of this well and any other well operating under BWCa contract #343 shall not
exceed 100 GPM.
6) The combined annual amount of ground water to be appropriated by this weil and any other well operating under 8WCD
contract 443 shall not exceed 36.4 acre-feet This well is known as the Appaloosa Well.
7) 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 preserve these markings.
3) This well shall be located not more than 200 feet from t,".e location specifies on this permit ana not less than 600 feet from
any existing well. not owned by the applicant
9) A totalizing flow meter must be installed on this well and maintained in good working order. Permanent records of ail
diversions must be maintained by the well owner (recorded at least annually) and submitted to the Division Engineer upon
request.
10) Approved for the installation of a pump in, and the use of, an existing well, constructed on September 9, 1999, under
mnnrnhnrinn V1-1-1Sg/O.A
DISTANCES FROM SECTION LINES
1826 Ft. from North Section Line
1934 Ft. from West Section Line
APPROVED
J02
if!
,Receiot No. 0453202 Stste Engineer GATE ISSUED MAR 0 '1 s EXPIRATION DATE MAR 01 2001
Form No.
GWS -25
OFFICE OF TP STATE ENGINEER
COLORADO G.. iSION OF WATER RESOURC
818 Centennial Bldg.. 1313 Sherman Si, Denver, Colorado 80203
(3031 8S&3581
Pinto Well (Equestrian Center
Well)
APPLICANT
1095
WELL PERMIT NUMBER 53232 -F
DIV. 5 WD 38 DES. BASIN MD
L
ASPEN EQUESTRIAN ESTATES
3275 CO RD 100
CARBONDALE, CO 81623-
BlOde
(970) 963-9397
PERMIT TO USE AN EXISTING WELL (AMENDED)
Filing: Suhdiv: ASPEN EQUESTRIAN _STATES
APPROVED WELL LOCATION
GARFIELD COUNTY
SE 1/4 NW 1/4 Section 31
Township 7 S Range 87 W Sixth P.M.
DISTANCES FROM SECTION LINES
1603 Ft. from North
2220 Ft. from West
Section Line
Section Line
ISSUANCE CF THIS PERMIT DOES NOT CONFER A WATF.R RIGHT
CONDITIONS OF APPROVAL
1) This well shall be used in such a way as to cause no material injury to existing water rights. The issuance of this 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 use of an existing 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 snail 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 affect, or under an approved plan for augmentation. BWCD contract #343.
4) The use of ground water from this well is limited to ordinary household purposes inside 47 single family dwellings and
three employee dwellings, the irrigation of not more than 3.4 acres of gardens and lawns, the watering of livestock, and
commercial uses associated with an equestrian facility. All use of this well will be curtailed unless the water allotment
contract or 3 plan for augmentation is in effect
5) The simultaneous maximum pumping rate of this well and any other well operating under BWCD contract „343 shall not
exceed 100 GPM.
5) The combined annual amount of ground water to be appropriated by this well and any other well operating under BWCD
contract ?#343 shall not exceed 36.4 acre-feet. This well is known as the Pinto Well.
7) The owner shalt mark the well in a conspicuous place with well permit number(s), name of the aquifer, and court case
numbers) as appropriate. The owner shall take necessary means and precautions to preserve these markings.
5) This well shall be located not more than 200 feet from the location specified on ,his permit and not:ass than 600 feet from
any existing well. not owned by the applicant.
9) 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.
10) Approved for the installation of a pump in. and the use of, an existing well, constructed on October 10, 1999. under
monitoring hole notice MH -36529-e- 4 � _�,,�
APPROVED
JC2
`Receipt No. 0453792A
State Engineer
DATE ISSUED FEB B 1 7 2000
s
8 EXPIRATION DATEFEB 1 7 .2031
TOTAL P.05
BASALT WATER CONSERVANCY DISTRICT
WATER ALLOTMENT CONTRACT NO. 343
Pursuant to C.R.S. 1973, 37-45-131
Jay Weinberg (hereinafter "Applicant") 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 0.23 cubic feet of water per second
from the District's direct flow rights and 38.2 acre feet per year (35.6 acre feet for domestic use and
2.6 acre feet for commercial use) of storage or other augmentation 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, Stockmans
Ditch Extension, Troy and Edith Ditch, Robinson Ditch, or other decrees or water rights hereafter
acquired by the District, including the District's contractual right to receive storage water from Ruedi
Reservoir and Green Mountain 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 'oe 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 or
augmentation releases made from the District's storage rights in Ruedi or Green Mountain Reservoirs
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 or Green
Mountain 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 facili:ies 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 Appli-
cant's use of said water shall be legally recognized and permitted by the applicable governmental
11,7,1 cTo Jnr tht. \.v2ter
allotted hereunder is for the following. use or uses:
x DomestiCJMun_clpal Lriuus Sial A l_oinrnerelill __ t1p11� U1LL4
Other
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
1
CAWFOOCUSAACW y1\f16 MY C1, 141
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 allotment 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. PAYMLN4 1: Applicant shall pay annually tor the water seryice aescnoeu nereiii iL
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
2
CAWP-OOeiSkABMWE3.ifiCi JE M 3.3
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 may exist through a homeowners association or special district as above
provided. Any 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 to the Applicant, responsible for the performance of all or any part of the Applicant's
covenants anti agreements nerein contalneu.
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
3
C:1M7A00JSAi{1MI@1mGNON• tan 343
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 exten-
sion 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.
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.
14. WELL SPACING REOUIRENMNTS: Applicant must comply with the well -spacing
requirements set forth in C.R.S. §37-90-137, as amended, if applicable. Compliance with said
4
C:W„oOC,,,,,yO,rFy,.accwbaaa 341
statutory well -spacing criteria shall be an express condition of the extension of service hereunder,
and the District shall in no way be liable for an Applicant's failure to comply.
15. RECORDING OF MEMORANDUM: In lieu of recording this Water Allotment
Contract, a Memorandum of Water Allotment Contract will be recorded with the Garfield County
Clerk and Recorder's Office. The costs of recording the Memorandum shall be paid by Applicant.
Applicant's Address:
c/o Patrick & Stowell, P.C.
730 E. Durant
Aspen, CO 81611
STATE OF COLORADO )
ss.
COUNTY:Q. .)-1-};in )
1 '145ubscti and swom to before me this
i? o J m' rar
t -. 'L i
o <,C ,bITNESS my hand and official seal.
�c , . - .)14!Iy commission expires:f.
5
cam, r,v®n9xwr on 343
day of SPp+em hQ.i , 1999, by
MCECO3IT A
cSc a � zo CAI and (TV aZW & z., _Grzc.
Reg. Land Surveyors and Engineers
811 Colorado Avenue
Glenwood Springs, Colorado 81601
(303) 945x8664
PROP Y DESCRIPTION
A parcel of lard situated in a portion of Lots 3, 4, 6, 17, 13 and 19 c_
Section 31, Towrsh.ip 7 South, Farre 87 West of the Sixth Principal Meridian,
County of Garfield,- State of Colorado, said parcel being more particularly
described as follows:
Commencing at the Witness Corner to the Northeast Corner of said Section 31, a
stone in place; thence S.60301'05"W. 2350.39 feet to the Southeast Corner c_
Reception No. 279416, also beim a point on to westerly right-of-way of Coling
Road No. 100, a refer and cap L.S. No. 10732 in place, to I'r'e Point of
E ir.r r thence S.00311'29"W. alert said westerly right-of-way 827.14 feet to
a rota_- and cap L.S. No. 10732 in place; thence continuing alar^ said westerly
right -of -Nay S.03°56'29"W. 117.74 feet to a rebar and cap L. S. Nc. 10732 i.
1 +z• _ ° i "
place; , �...e _.ce continuing along said wed �erly right-of-way S .11 37 27 r�W
. 299.44
feet; thence leaving said westerly right-of-way N.72°41'32"W. along a line
beim, northerly of Blue Creek 136.34 feet; fence continuing a1cr_ a lire being
northerly of Blue Creek N.77°44'52"W. 317.0c e err " 1
iZ.`O Lt; thence continuing along a
line beim northerly of Blue Creek N.62°48' 46"W. 375.98 feet; thence continu ir.g
along a line beim northerly of Blue Creak N.41°30' 29"W. 39.74 feet; thence
continuing along a lir_ being ncrte ly o: Blue Creek N.31°01' 17"W. 235.92
foa` • thence N. I3 ° 12' 20"B. 120.00 feat to a point in a: existing fenae • thence
N76'47'40"4. along said existing fence 1038.73 feet to a point cn the easterly
lire of Parcel B of Preception No. 3756653 (from wrerce retar and cap L.S. No .
107:2 • bears S.00°00'18"W. 263.23 feet); thence N.00°00'18"E. along said
easterly lire 1013.61 feet to a point on to sc t +erly richt-of-Nay of Colorado
State Highway No. 82 as evidenced by existing right -of -Nay monuments and the
existing centerline (whence a rebar and cap L.S. No. 3317 bears S.CC°C0' 18"W.
3.99 feat); thence S.79°56'55"E. along said southerly richt-of-way 1982.77
feat; thence 5.10'30'58"W. alonghe -�1 ,r. + No. 279416
t. este y 1_ of said Reception
133.47 feet to a rebar aro cap L.S. No. 10732 in place; thence S.79"44'32"E.
along the southerly lire of said Reception No. 279416 247.29 feet to the True
Point of Becinn{nc; said parcel containing 57.839 acres, more cr less.
Together with a perpetual easement ;t beim, a portion of Parcel "3" shown in
Reception No. 375658 situated in a portion of Lot 17 of Section 31, Township 7
South, Range 87 Fest or the Sixth Prirci l Meridian, County of Garfield, State
of Colorado; said easrent being more particularly described as follows:
Commencing at is Witness Corner to th_ Northeast Corrar of said Sectiecn 21, a
store in place; thence S.81°10'28"W. 4257.59 feet to a point on the southerly
right -of -Nay of State Highway No. 82, the Trie Point of Eeoinnirc; thence
3.00°000'13"W. along the easterly lire of sa'd Parcel "3" 1013.61 feet to a
point on an existing fence; thence N.76°47'40"W. along said fence 67.27 feet to
a point cnthe westerly line of said ca*cel "3"; thence N.CO°OZ' 35"E. along
said westerly lire 1009.48 feet to a point cn t`.e speer:, right f -dray of
said State cig:.ay No. 82; thence S.79°56'5.5"7 -r. alcrr sad scIt er:y richt-cf -
way 64.35 feet to the T_ -:e Point of 8ecinninc; said easement containing 1.496
acres, more or less.
Decemcer 2, 1987
BASALT WATER CONSERVANCY DISTRICT
WATER ALLOTMENT CONTRACT NO. 383
Pursuant to C.R.S. 1973, 37-45-131
Blue Creek Land Holdings, L.L.C. (hereinafter "Applicant") 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 seg., 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 and those certain terms and conditions set forth in the attached Order, which is fully
incorporated as a part of this Contract:
1. QUANTITY: In consideration of the covenants and conditions herein contained,
Applicant shall be entitled to receive and apply to beneficial use 0.22 cubic feet of water per second
from the District's direct flow rights and 12.9 acre feet per year of storage or other augmentation
water owned or controlled by the District (12.3 AF to be used for domestic purposes and 0.3 AF for
commercial purposes). Applicant shall restrict actual diversions and consumptive use under this
Contract to these amounts.
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, Troy and Edith Ditch, Robinson Ditch, or other decrees or water rights hereafter
acquired by the District, including the District's contractual right to receive storage water from Ruedi
Reservoir and Green Mountain 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 or
augmentation releases made from the District's storage rights in Ruedi or Green Mountain Reservoirs
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 or Green
Mountain 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. Releases from other
facilities available to the District shall be subject to the contracts, laws, rules, and regulations
governing releases therefrom. Furthermore, the District hereby expressly reserves the right to store
water and to make exchange releases from structures that may be built or controlled by the District
in the future, so long as the water service to the Applicant pursuant to this agreement is not impaired
by said action.
3. PURPOSE AND LOCATION OF USE: Applicant will use the water rights allotted
pursuant to this Contract for beneficial purposes by diversion at Applicant's point of diversion under
the District's direct flow water rights and/or by use of augmentation or exchange water owned or
controlled by the District. Applicant will use the water allotted by the District 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
1
C:, aWCIABhCrweCa3u
jurisdiction over the property served. Applicant's contemplated usage for the water allotted
hereunder is for the following use or uses:
X Domestic/Municipal (12.6 AF) — Industrial X Commercial (0.3 AF)_ Agricultural
Other
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.
Any quantity of the Applicant's allocation not delivered to or used by Applicant by the end
of each water year, shall revert to the water supplies of the District. Such reversion shall not entitle
Applicant to any refund of payment made for such water.
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 institute any legal proceedings for the approval of an
augmentation plan and/or any change to an alternate point of diversion of the District's water right
to allow the Applicant to utilize the water allotted hereunder, the Applicant shall give the District
written notice of such intent. In the event the Applicant develops and adjudicates an alternate point
of diversion and/or 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 application for change of water right,
and/or augmentation plan or other water supply plan involving the District's rights, and the Applicant
shall provide the District copies of such application and of all pleadings and other papers filed with
the Water Court in the adjudication thereof.
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 allotment 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
2
C:1vy.dzUSUbn BWCDN8l, Cm10Cuest3
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
the structures, works and facilities, if any, necessary to utilize the District's water rights allotted
hereunder for Applicant's beneficial use.
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, a late fee of $50 (or such other amount as the Board may
set from time to time) will be assessed and final written notice of the delinquent account and late fee
assessment 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 final 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.
Upon the sale of the real property to which this Contract pertains, Applicant has a duty to
make the buyer aware of this Contract and the need to assign the Contract to the buyer. However,
prior written approval of the Board of Directors of the District is required before the assignment is
effective. Payment of an assignment fee in an amount determined by the Board shall be required as
a prerequisite to approval of the assignment.
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, 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
3
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 may exist through a homeowners
association or special district as above provided.
Any assignment of the Applicant's rights under this Contract shall be subject to and must
comply with such requirements as the District has adopted or 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 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 all applicable law, including, for
example, the provisions of the Water Conservancy Act of the State of Colorado, the Rules and Regu-
lations 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. 81CW253 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 exten-
sion 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.
4
C. n..bcLL \Akc BWCD\Bkr Cirk,Carra lkl
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.
13. COMPLIANCE WITH SECTION 404 OF THE CLEAN WATER ACT. Applicant
shall comply with Section 404 of the Clean Water Act and consult with the Army Corps of Engineers
to complete any Section 404 compliance that maybe required as a result of the construction of any
facilities necessary to use contract water.
14. 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.
15. WELL PERMIT: If Applicant intends to divert through a well, then Applicant must
provide to District a copy of Applicant's valid well permit before the District is obligated to deliver
any water hereunder, and it is the Applicant's continuous duty to maintain a valid well permit.
Applicant shall also comply with all restrictions and limitations set forth in the well permit obtained
from the Colorado Division of Water Resources. Applicant must comply with the well -spacing
requirements set forth in C.R.S. §37-90-137, as amended, if applicable. Compliance with said
statutory well -spacing criteria shall be an express condition of the extension of service hereunder,
and the District shall in no way be liable for an Applicant's failure to comply.
16. MEASURING DEVICE OR METER: Applicant agrees to provide, at its own
expense, a totalizing flow meter with remote readout to continuously and accurately measure at all
times all water diverted pursuant to the terms of Applicant's water right and the terms of this
Contract. Applicant agrees to provide accurate readings from such device or meter to District upon
District's request. Applicant acknowledges that failure to comply with this paragraph could result
in legal action to terminate Applicant's diversion of water by the State of Colorado Division of Water
Resources. By signing this Contract, Applicant hereby specifically allows District, through its
authorized agent, to enter upon Applicant's property during ordinary business hours for the purposes
of determining Applicant's actual use of water.
17. CONTRACT TERMINATION:
A. Termination by District:
C..,.mlLS \ Abeew00\8lu.0 om...3n
1. The District may terminate this Contract for any violation or breach
of the terms of this Contract by Applicant.
5
2. The District may terminate this Contract if, in its discretion, any
judicial or administrative proceedings initiated by Applicant threaten the District's
authority to contract for delivery or use of the District's water rights, or threaten the
District's permits, water rights, or other interests of the District.
B. Termination by Applicant:
1. Applicant may terminate this Contract in its entirety for any reason by
notifying the District in writing of the termination on or before April 1.
Notice by said date will prevent the Applicant's liability for the next annual
contract charge.
18. RECORDING OF MEMORANDUM: In lieu of recording this Water Allotment
Contract, a Memorandum of Water Allotment Contract will be recorded with the Garfield County
Clerk and Recorder's Office. The costs of recording the Memorandum shall be paid by Applicant.
Applicant's Address:
Blue Creek Land Holdings
3220 County Road 100
Carbondale, CO 81623
(970) 963-9833
iii
STATE OF
COUNTY OF )e(ii
Subscribed and sworn to before me this 1241- day of
Rob Cumming, Manager of Blue Creek Land Holdings, L.L.C..
WITNESS my hand and official seal.
My commission expires: 11 /43/9004
ss.
APPLICANT:
BLUE CREEK LAND HOLDINGS, L.L.C.
By:
6
C:\vpds4SAM BWCD\Bbr Cn.NCorrect lU
,,
ot'ublic penn'Se. ,(. /jai -1-21S
, 2001, by
n.
St6a(0& Co'nf,
(dell I) 'IX Of- (cu,,t��
03/07/2001 09:13 9707049006
•
WINDRIVER CO
PAGE 01
EXHIBIT E
QUIT CLAIM DEED
THIS DEED, made this 28tb day 01 September
WILLIAM J. GILLIGAN AND JAYNE M. GILLIGAN
grantor, whose street address is:
3100 ADAMS ROAD, OAK BROOK, IL 60523
, 2000 between
County of , State of Illinois , for the consideration
of Ten Dollars and other good and valuable con ldcration Dollars in hand paid,
hereby sells and quitclaims to:
BLUE CREEK LAND HOLDINGS, L.L.C., A COLORADO LIMITED LIABILITY COMPANY
grantee. whose street address is:
19351 HIGHWAY 82, CARBONDALE, CO 81623
County of Garfield
, State of Colorado
, the following legally
described water rights.
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART THEREOF
Appurtenant to:
SEE EXHIBIT "B" ATTACHED HERETO AND MADE A PART THEREOF_
day
us; above writen.
WILtt1►l1 J. dE N
JAYNE M. GIL IGA�
State of Illinois )
)ss.
County of /OIL/
The foregoing instrument was acknowledged before me this 28th
2000 by WILLIAM J. GILLIGAN AND JAYNE M. GILLIGAN
Witness my hand and official seal.
My commission' s:
.1.."."1.1.1.141,004‘.
1.."."1.1.„ tw J . boV4.,
OFNt. tAt r..AL
IOTAM Wti (%ec
ppTM'f IokM11c :Il •t. 1t P:
Olt' CA:4M.—,;N`f:-..(Pt14fA X11; (WV
form WATER.QCD (6.699)
Return to:
day of September
Notary Public
BLUE CREEK LAND HOLDINGS L.L.C. A
COLORADO LIMITED LIABILITY COM:'ANY
19351 HIGHWAY 82
CARBONDALE, CO 81623
03/07/2001 09:13 9707049006
WINDRIVER CO PAGE 02
EXHIBIT "A"
WATER RIGHTS
1. 26.51150'h of all right, title and interest originally acquired by T.O. Ranch
Company of Colorado in and to Basin Ditch No. 45, under original Priority Nos.
49 and 108, that being an amount of 0.176 c.f.s. in each priority, and 26.5/150'h
interest in 33.2 c.f.s. under Priority No. 294, that being 5.865 c.f.s, (said original
interest in T.O. Ranch Company of Colorado being an undivided 1/5 interest in
and to said Priority Nos. 49 and 108).
2. An undivided 1 1/38th interest in and to all right. title and interest originally
acquired by T.O. Ranch Company of Colorado in and to Middle Ditch No. 68,
under original priority No. 83, that being 0.96 c.f.s., (said original interest of T.O.
Ranch Company of Colorado being an undivided 2/3 interest therein).
3. 37/76th interest of all right, title and interest originally acquired by T.O. Ranch
Company of Colorado in and to Lower Ditch No. 21 under original priority No.
23, that being 0.365 c.f.s.. (said original interest of T.O. Ranch Company of
Colorado being an undivided one-half interest in and to priority No. 23), and a
45/134'h interest as to priority No. 721, that being 3.996 c.f.s.. (said interest being
the entire original interest acquired by T.O. Ranch Company of Colorado).
4. Underground water rights in "T.O. Well," identified as Colorado State Engineer's
No. 10560, with priority date of lune 5, 1961. described in Case No. W-849, in
the District Court in and for Water Division No. 5. State of Colorado, estimated to
be 0.11 c.f.s.
5. All of applicant William J. Gilligan's right, title and interest in and to the
C.C.Cerise Gilligan Ditch, decreed for 3.0 c.f.s. in Case No. 90W196 in Water
Division No. 5 on August 31, 1992, with an appropriation date of February 20.
1988.
03/07/2001 09:13 9707049006
WINDRIVER CO PAGE 03
IXHIBIT B
A PARCEL OF LAND SITUATED IN THE UNITED STATES GOVERNMENT LOTS 1, 2, 6. 7, 11
AND THE NORTHEAST QUARTER SOUTHWEST QUARTER OF SECTION 31, TOWNSHIP 7 SOUTH.
RANGE 87 WEST OF THE SIXTH PRINCIPAL MERIDIAN, GARFIELD COUNTY, COLORADO, SAID
PARCEL I8 LOCATED SOUTHERLY OF COLORADO STATE HIGHWAY NO. 82, EASTERLY OF
GARFIELD COUNTY ROAD 100 AND NORTHERLY OF THE DENVER AND RIO GRANDE WESTERN
RAILROAD RIGHT-OF-WAY, AND IS MORE FULLY DESCRIBED AS FOLLOWS'
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID GOVERNMENT LOT 2, SECTION 31,
THENCE SOUTH 00 DEGREES 55'02" EAST, A DISTANCE OF 1197.02 FEET TO THE
INTERSECTION OF SAID COUNTY ROAD 100 EASTERLY RIGHT-OF-WAY WITH THE SOUTHERLY
RIGHT-OF-WAY OF COLORADO STATE HIGHWAY NO. 82, THE TRUE POINT OF BEGINNING,
THENCE EASTERLY ALONG SAID STATE HIGHWAY SOUTHERLY RIGHT-OF-WAY THE FOLLOWING'
NORTH 81 DEGREES 01'05" EAST, A DISTANCE OF 7.29 FEET TO THE POSITION /OR
COLORADO DEPARTMENT OF TRANSPORTATION (CDOT), MONUMENT 529 OF PROJECT NO.
CX(FC) 24-0082-26 (MISSING), (SAID POINT IS MARKED BY A WITNESS CORNER
MONUMENT, A 5/8" STILL ROD WITH YELLOW PLASTIC CAP MARRED BUETTNER 13166 WC, AT
A DISTANCE 07 NORTH 81 DEGREES 01'05" EAST, 2.00 FEET FROM THE CDOT MONUMENT
POSITION, SAID WITNESS CORNER MONUMENT IS LOCATED AT THE BASE OF A WIRE
FENCE);
THENCE NORTH 81 DEGREES 01'05" EAST, A DISTANCE OF 120.91 FEET TO A CDOT
MONUMENT 530 OF SAID CDOT PROJECT;
THENCE NORTH 72 DEGREES 01'.3" EAST, A DISTANCE OF 188.81 FEET TO THE CDOT
MONUMENT 531 OF SAID PROJECT;
THENCE SOUTH 84 DEGREES 43'15" EAST, A DISTANCE OF 401.16 FEET TO THE CDOT
MONUMENT 532 (MISSING NOW MARKED WITH A 5/8" STEEL ROD AND YELLOW PLASTIC CAP
HARPED BUETTNER 13166), OF SAID PROJECT;
THENCE SOUTH 78 DEGREES 30'40" EAST, A DISTANCE OF 382.98 FEET TO A WIRE FENCE
CORNER;
THENCE DEPARTING SAID STATE RIGHT-OF-WAY SOUTH 00 DECREES 35'23" WEST, A
DISTANCE OF 1834.33 FEET ALONG A WIRE FENCE TO A FENCE CORNER;
THENCE SOUTH 89 DEGREES 16'38" EAST, A DISTANCE O► 231.46 FEET TO A FENCE
CORNER;
THENCE SOUTH 00 DEGREES 10' 42" EAST A DISTANCE OF EAST. A DISTANCE OF 785.71
FEET ALONG A WIRE FENCE TO A INTERSECTION WITH THE DENVER AND RIO GRANDE
WESTERN RAILROAD NORTHERLY RIGHT-O7-wAY, SAID POINT or INTERSECTION BEING
WITHIN THE ROARING FORK RIVER;
THENCE WESTERLY ALONG SAID NORTHERLY RAILROAD RICHT-OF-NAY, BEING LOCATED
WITHIN THE ROARING FORE RIVER THE FOLLOWING'
SOUTH 80 DEGREES 27'41" WEST, A DISTANCE OF 2.30.73 FEET:
SOUTH 83 DEGREES 46'38" WEST, A DISTANCE OF 96.97 FEET;
SOUTH 84 DEGREES 11'43" NEST A DISTANCE OF 99.20 FEET,
SOUTH 84 DEGREES 12'11" WEST, A DISTANCE OF 99.74 FEST;
SOUTH 84 DEGREES 12'20" WEST, A DISTANCE OF 99.08 FEET;
SOUTH 84 DEGREES 12'45" NEST, A DISTANCE OF 103.09 FEET,
SOUTH 84 DEGREES 06'14" WEST, A DISTANCE OF 97.41 FEET,
SOUTH 84 DEGREES 09'08" WEST, A DISTANCE OF 100.70 FEET;
SOUTH 84 DEGREES 53'34" WEST, A DISTANCE OF 96.53 FEET;
SOUTH 86 DEGREES 56'14" NEST, A DISTANCE OF 93.61 FEET;
NORTH 89 DEGREES 35'50" WEST, A DISTANCE OR 93.75 FEET,
NORTH 86 DEGREES 21'01" NEST, A DISTANCE OP 94.46 JEST,
NORTH 82 DEGREES 59'43" WEST, A DISTANCE OF 94.93 777T,
NORTH 79 DEGREES 59'43" WEST A DISTANCE OF 95.24 FEET;
NORTH 77 DEGREES 47'12" WEST, A DISTANCE OF 97,04 FEET;
NORTH 77 DEGREES 19'56" WEST, A DISTANCE OF 99.76 FEET;
NORTH 77 DEGREES 10' 16" WEST, A DISTANCE OF 86.35 PRET TO A INTERSECTION WITH
THE YA8TERLY RIGHT-OF-WAY OF GARFIELD COUNTY ROAD 100;
THENCE NORTHERLY ALONG SAID EASTERLY RIGHT-OF-wAY THE FOLLOWING COURSES AND
CURVS3'
THENCE NORTH 36 DEGREES 10' 38" EAST. A DISTANCE OF 92.37 FEET;
THENCE ALONG A CURVE TO THE LEFT 145.86 FEET, THE RADIUS OF SAID CURVE BEING
340.27 MGT, TH1 CENTRAL ANGLZ I9 24 DEGREES 33' 37", THE CURVE LONG CHURD
BEARS NORTH 24 DEGREES 23' 49" EAST, A DISTANCE OF 144.75 FEET;
THENCE NORTH 12 DEGREES 07' 00" LAST, A DISTANCE 0? 1490. 00 FEET;
03/07/2001 09:13 9707049006 WINDRIVER CO
EXHIBIT e
PAGE 04
THENCE ALONG A CURVE TO THE LEFT 296.07 FEET, THE RADIUS OF SAID CURVE BEING
1462.39 FEET, THE CENTRAL ANGLE I3 11 DEGREES 36' 00". THE CURVE LONG CHORD
BEARS NORTH 06 DEGREES 19' 00" EAST, A DISTANCE OF 295.57 FEET;
THENCE NORTH 00 DEGREES 30' 48" EAST, A DISTANCE OF 727.56 FEET TO THE TRUE
POINT OF BEGINNING.
COUNTY OF GARFIELD
STATE OF COLORADO
May -29—01 01:23P
EXHIBIT F P-02
STATE OF COLORADO
Rill (Twang, (',irvI.rnor
)ane E. Norton. Executive Director
Dedicated to protecting and improving rhe health ,and environment of the people plc of Colorado
4300 Cherry Creek Dt. 5.
Denver, Colorado 80246-1530
Phone (303) 692-2000
TIM) Lina (303) 691.7700
Located in Glendale, Colorado
http://kvww.cdphe.srate.co.us
May 24, 2001
laboratory and Radiation Services Division
8100 Lowry Blvd.
Denver, Colorado 80230.6928
00.1) 692-3090
Thomas A. Zancarella, PE
Zancanclla and Associates, Inc.
PO Box 1908
1005 Cooper Avenue
Glenwood Springs, CO 81602
Re: Proposed Blue Creek Ranch WWTP, Garfield County
Colorado Department
of Public Health
and Environment
Dear Mr. Zancanella:
The Colorado Department of Public Health and Environment, Water Quality Control Division, has
completed your request for preliminary effluent limits (PELs) for the proposed Blue Creek Ranch
wastewater treatment plant (WWTP). Your current proposal is for a WWTP with a hydraulic design
capacity of 0.02 million gallons per day (MGD).
This proposed facility would discharge into the Roaring Fork River in the NW1/4 of SEl/4, Section 31,
Township 7 South, Range 87 West of the 6`h P.M- in Garfield County- This portion of the Roaring Fork
River is identified as stream segment COUCRF03, which means the Upper Colorado River Basin,
Roaring Fork River Subbasin, Stream Segment 3. This stream segment is composed of the "Mainstem
of the Roaring Fork River, including all tributaries, wetlands, lakes and reservoirs from a point
immediately below the confluence with Huntcr Creek, to the confluence with the Colorado River except
for those tributaries included in Segment 1 and specific listings in Segments 3a through 10." These
identifications arc found in the Classification and Numeric Standards for Upper Colorado River Basin
and North Platte River (Planning Region 12).
Effluent limits for specific constituents arc bascd on the type of permit a facility will require after
constnlction. The Blue Creek Ranch WWTP may be covered by a general permit.
The preliminary effluent limitations were developed for the Blue Creek Ranch WWTP based on effluent
limits established in the Regulations for Effluent Limitations for a WWTP consisting of a mechanical
wastewater treatment process, as well as the water quality -based effluent limits necessary for protection
of the water quality of the Roaring Fork River. A PI:I,s evaluation is attached to document the findings
and decisions that were used to derive the PELs in Table 1.
PreliMitiary Effluent*„
BODS (mg/1)
tile:
ieeRanchWWTP :. -__:;.;.___._:
s Dise rge:to,the. Roaring Fork -River .
45 (7 -day avcragc), 30 (30 -day average)
BODS (% removal)
TSS, mechanical plant (mg/1)
85 (30 -day average)
45 (7 -day average), 30 (30 -day average)
TSS, mecaruca plant only (% removal)
85 (30 -day avcragc)
Oil and Grease (mg/1)
PH
(s.u.)
Fecal Coliform (organisms/100 nil) 12,000 (7 -day average), 6,00000 (30 -day avcragc)
Total Residual Chlorine (mg/1) 0.5 (maximum)
1maximum)
6.5-9.0 (minimum -maximum)
May -29-01 O1:23P
Proposed Blue Creek Ranch WWTP
Thomas A. Zancanclla, PE
May 24, 2001
Page 2
P-03
If you have any questions regarding this matter, please contact me at (303) 692-3614.
Sincerely,
Karen Young
Environmental Protection Specialist
Permits Unit, Water Quality Protection Section
Water Quality Control Division
r.
ENCLOSURE
CC: Local Health Department
Dwain Watson, District Engineer, Grand Junction Office
Tom Bennett. Drinking Water and Wastewater Technical Services
Garfield County rile
May -29-01 01:23P
P.04
Blue Creek Ranch WWTP Preliminary Effluent Limits PEL-Garfield County
PRELIMINARY EFFLUENT LIMITS
ROARING FORK RIVER
BLUE CREEK RANCH WWTP
Table 1
Assessment Summary
Blue Creek Ranch WWTP
Name of Facility
CO-PEL
CDPS number
'Upper Colorado River Basin, Roaring Fork
River Subbasin, Stream Segment 3: Mainstem
of the Roaring Fork River, including all
tributaries, wetlands, lakes and reservoirs from
a point immediately below the confluence with
Hunter Creek, to the confluence with the
Colorado River except for those tributaries
included in Segment t and specific listings in
Segments 3a through 10.
COUCRFO3
W131 U - Stream Segment
Cold Water Aquatic Life Class I
Class 1 Recreaction
Agriculture
Water Supply
Classifications
Undesignated
Designation
L Introduction
The Preliminary Effluent Limits (PELs) analysis of the Roaring Fork River near the pmposcd Bluc
Crcck Ranch Wastewater Treatment Plant (WWTP) was developed for the Colorado Department of
Public Health and Environment (CDPHE) Water Quality Control Division (WQCD). The PELs
analysis was prepared to facilitate issuance of a Colorado Discharge Permit System (CDPS) permit
for the proposed Blue Crcck Ranch WWTP.
Figure 1 on the following page contains a reap of the study arca evaluated as part of this PEL.
The proposed Bluc Creek Ranch WWTP will discharge the Roaring Fork River. The ratio of the low
flow of the Roaring Fork River to the design flow of the proposed Blue Creek Ranch WWTP is
6065:1. Although four other facilities discharge within seven miles downstream of the proposed
Blue Crcck Ranch WWTP, due to the small design [low of the proposed facility versus the high flow
rate of the receiving stream, analyses indicate that assimilative capacities arc extremely large.
PELs Page 1 of 15 Draft
May -29-01 01:24P
Blue Creek Ranch WWTP Preliminary Effluent Limits
Figure 1
Study Area
P_05
PEL-Garfield County
LEGEND
r Discharges to water
• superfund sites
■ Hazardous waste
• Toxic releases
▪ Air releases
■ Others
• Multiple
/, Streets
1111.1 Water Bodies
=Counties
Source: EPA's Enviromapper,
8.2 mi across
Information used in this assessment includes data gathered from the U. S. Geological Survey
(USGS), the U.S. Environmental Protection Agency (EPA), Riverwatch, and the WQCD. The data
used in the assessment consist of the best information available at the time of preparation of this
PELs package.
IL Water Quality
The proposed Blue Creek Ranch WWTP will discharge to the Water Body Identification (WBID)
stream segment COUCRF03, which means the Upper Colorado River Basin, Roaring Fork River
Subbasin, Stream Segment 3. This segment is composed of the "Mainstem of the Roaring Fork
River, including all tributaries, wetlands, lakes and reservoirs from a point immediately below the
confluence with Hunter Creek, to the confluence with the Colorado Rivcr except for those tributaries
included in Segment 1 and specific listings in Segments 3a through 10." Stream segment
PELs Page 2 of 15
Draft
.........„„,--------------j;_„„).
—.4-- -7:---..'—'•-jri
j -e'"
River
S
1.-
. 14rw
ing on 72
\
r
Blue Cteek
ranch WWTP
R
Roaring fm
__
arbondale
.t5
ss 3��lig
EPA`s Flivirntilanzer
LEGEND
r Discharges to water
• superfund sites
■ Hazardous waste
• Toxic releases
▪ Air releases
■ Others
• Multiple
/, Streets
1111.1 Water Bodies
=Counties
Source: EPA's Enviromapper,
8.2 mi across
Information used in this assessment includes data gathered from the U. S. Geological Survey
(USGS), the U.S. Environmental Protection Agency (EPA), Riverwatch, and the WQCD. The data
used in the assessment consist of the best information available at the time of preparation of this
PELs package.
IL Water Quality
The proposed Blue Creek Ranch WWTP will discharge to the Water Body Identification (WBID)
stream segment COUCRF03, which means the Upper Colorado River Basin, Roaring Fork River
Subbasin, Stream Segment 3. This segment is composed of the "Mainstem of the Roaring Fork
River, including all tributaries, wetlands, lakes and reservoirs from a point immediately below the
confluence with Hunter Creek, to the confluence with the Colorado Rivcr except for those tributaries
included in Segment 1 and specific listings in Segments 3a through 10." Stream segment
PELs Page 2 of 15
Draft
May -29-01 01:24P
P_06
Blue Creek Ranch WWTP Preliminary Effluent Limits PEL-Garfield County
COUCRFO3 is classified for Cold Water Aquatic Life Class 1, Class 1 Recreaction, Agriculture, and
Water Supply.
Numeric standards arc developed on a basin -specific basis and are adopted for particular stream
segments by the Water Quality Control Commission. To simplify the listing of the segment -specific
standards, many of the aquatic life standards are contained in a table at the beginning of each chapter
of the regulations. The standards in Table 2 have been assigned to stream segment COUCRFO3 in
accordance with the Classification and Numeric Standards for Upper Colorado River Basin and
North Platte River (Planning Region 12).
Table 2
In -stream Standards for Stream Segment COUCRFO3
)rslcat and Bialoglcat ..
Dissolved Oxygen (DO) — 7 mg/I. minimum
pH= 6.5-9su
Fecal Conform' 200 colonies/ 100 ml
Inorgank_
Un-tonizcdammonia acute = TVS
Un -ionised ammonia chronic-0.02mg/1
Chiormc acute — 0.019 mg/I
Chlorine chronic = 0.011 mg/1
Frcc Cyanide acute — 0,005 mg/1
Sulfide chronic = 0.002 mg/1
Boron cironic - 0.75 mg/1
:•slrcrite -0.05 mgil
Nitrate = 10 mg/1
Chloride chronic — 250 mg/l
Sulfate chronic = 250 mg/1
Metals
Total Recoverable Arsenic acute S0 ugii
Dissolved Cadmium acute for trout and Dissolved- Cadmium chronic - TVS
Total recoverable 'Trivalent Chromium acute = 50 ugil
Dissolved Hexavalent Chromium acute and chronic = TVS
Dissolved Copper acute and chronic = TVS
Dissolved Iron chronic = 300 ug/I
Total -Recoverable Iron chronic = r000 ug/l
Disaolvcd Lead acute and chronic -• I VS
Dissolved :Manganese chronic 50 ug/l
Total Mercury chronic — 0.01 ug/1
Dissoived Nickel acute and chronic =TVS
Dissolved -Selenium acute and -chronic = TVS
r
Dissolved Silver acute and Dissolved Siivcr chronic for trot/ T'CSr�'
Dissolved Zinc acute and chronic CVS
Standards for metals arc generally shown in the regulations as Table Value Standards (TVS), and
these often must be derived from equations that depend on the receiving stream hardness or species
PELs
Page 3of15
Draft
May -29-01 01:24P
P-07
Blue Creek Ranch WWTP Preliminary Effluent Limits PEL-Garfield County
of fish present. The Classification and Numeric Standards documents for each basin include a
specification for appropriate hardness values to be used. Speci fically, the regulations state that:
The hardness values used in calculating the appropriate metal standard should be based
on the lower 95% confidence limit of the mean hardness value at the periodic low flow
critcria as determined from a regression analysis of site-specific data. Where
insufficient sitc-spccific data exists to define the mean hardness value at the periodic
low flow critcria, representative regional data shall be used to perform thc regression
analysis. Where a regression analysis isnot appropriate, a site-specific method should
be used.
Hardness data for the Roaring Fork River near the point of discharge of thc proposed Blue Creek
Ranch WWTP were insufficient to conduct a regression analysis based on thc low flow. In thc
absence of a regression analysis, thc WQCD's alternative approach to calculating hardness was used,
which involves computing a mean hardness.
The mean hardness was computed to be 199 mg/1 as CaCO3 based on sampling conducted at
Riverwatch sampling location 72 (Roaring Fork River at 7-11 Bridge) located approximately 7 miles
upstream of the proposed Blue Creek Ranch WWTP. This mean hardness from the Roaring Fork
River and thc formulas contained in the TVS were used to calculate the in -stream water quality
standards for metals as shown in Table 3.
Ambient Water,Quality
The WQCD evaluates ambient water quality based on a variety of statistical methods as prescribed in
Section 31.8(2)(a)(i) and 31.8(2)(b)(i)(B) of the Colorado Department of Public Health and
Environment Water Quality Control Commission Regulation No. 31. Ambient water quality is
evaluated as part of this assessment to determine assimilative capacities.
To conduct an assessment of the ambient water quality upstream of the Blue Creek Ranch WWTP,
data were gathered from two sources. Data from the Riverwatch sampling location 72, located
approximately seven miles upstream of the proposed Blue Creek Ranch WWTP, were used to
determine ambient background concentrations for pH, temperature, dissolved oxygen, and hardness.
Data were available for a period of record from October 1995 through February 2000. Data gathered
at the WQCD sampling location 000144/12708 (Roaring Fork River below Aspen), located
approximately twenty-five miles upstream of the proposed Blue Creek Ranch WWTP, provided
background data on fecal coliform, ammonia, and metals. This WQCD sampling location was
designated as sampling location 000144 until 1997, and later renumbered as WQCD sampling
location 12708. `('hest data were available for a period of record from October 1996 through April
2000. These data, which represent upstream ambient water quality, are summarized in Table 4.
III. Water Quantity
The Colorado Regulations specify the use of low flow conditions when establishing water quality
based effluent limitations, specifically the acute and chronic low flows. The acute low flow, referred
PELs Page 4 of 15 Draft
May -29—01 01:24P
Blue Creek Ranch WWTP Preliminary Effluent Limits
P. 08
PE L -Garfield County
to as 1E3, represents the one -day low flow recurring in a three-year interval. The chronic low flow,
30E3, represents the 30 -day average low flow recurring in a three-year interval.
Table 3
Site -Specific Water Quality Standards for the Proposed Blue Creek Ranch WWTP
Based on the Table Value Standards Contained in the Colorado Department of Public Health
and Environment Water Quality Control Commission Regulation 33
Calculated Using thc Following Value for Hardness as CaCO3: 199 mg/1
Parameter
In -Scream Water
Quality Standard
.= Formula Used
Trout
8.5 ug/1
"`�1.I2)t(In(hardncss))•3 8281
e
Cadmium, Dissolved
Chronic
1.9 ug/1
e (0.71;3 on(bardness))-3.490)
Hexavalent Chromium,
Dissolved
Acute
16 ug/1
Numeric standards pruvidcd, furmula not apphcahlc
Chronic
1 1 ; ug/r 1
Numeric standard.t provided, formula nut applicable
Copper, Dissolved
Acute
34 ug/1
e (0.9422(1nl hardness)) -1 .3(34)
Chronic
21 ug/l.
e B545ilnlhardnaas)) 1.4A5}
Lead, Dissolved
Acute-
291; ug/1
--�
e (1.G1d8(7niharJt►esa))-2-$73b)
Chronic
+
10ug/1
e (1.417(lntharJness)) 5.1 6;)
Nickel, Dissolved—
Acute
1561'. ug/1
(0.7 G(in I hardness)) , 3.33)
e
Chronic
161 ug/l�
I U6)
e (
Selenium, Dissolved
Acute
20ug/1
Numeric standards provided. formula not applicable
Chronic
5.0; ug'Jl
Numeric standards provided, formula not applicable
Silver, Dissolved
Acutc
6.6 ug/I
e (1.72(In(hardness))-7.21)
Trout
0.25 ug/l
e (1.72(ln(hardnesi))-10.31)
Zinc, Dissolved
Acute
210- u,W1
e 0.3473on(hardnass))i0.3604)
Chronic
190 ug/1
e(UAW 3(In(hardncss)r0.7614)
Low Flow Analysis
To determine the low flows available to the proposed Blue Creek Ranch WWTP, a flow gage
measurement immediately upstream of the proposed facility should be used. There are, however, no
gage stations within 15 miles upstream or downstream of the proposed facility.
Low flows were therefore determined using a comprehensive analysis of the flow balance of the
Roaring Fork River performed by the WQCD in 1998. As part of this analysis, thc WQCD obtained
Roaring Fork River daily flow data from several USGS gage stations and then performed a flow
balance throughout the basin to determine low flows at multiple discharge points and tributary
PELs Page 5 of 15 Dralt
Islay -29-01 01-25P
P. 09
Blue Creek Ranch WWTP Preliminary Effluent Limits PEL-Garfield County
confluences. Based on this analysis, the estimated low flows for the proposed Blue Creek Ranch
WWTP are presented in Table 5.
Ambient Water Quality for the
Table 4
Proposed Blue Creek Ranch WWTP
Parameter
Number •
of
Samples
15th
Percentile
SOth
Percentile
..
,85th
Percentile
Mean
Chronic
Stream
Standard
Nates
Tcmp ('C)
44
36
1.9
8.5
6
10
12'
T2
-5"
6.4
10
20
7
1
1
DO (mg/i)
p11 (su)
36
8,3
8.6
8.6-
6.5-9
1
Fecal Coliform (#/ 100
mi)
18
1
1
3
2
200
2
Hardness (mg/3
CaCO3)
45
139
202
246
199
NA
1
A3, Dis (ug/1)
25
33
0
Ir
0
t5—
cs—
6(
0.080
6
NA
1.9
3'
-T
Cd. Dts (ug/1)
Z i t s (ug/1)
33
0
0
6
0.052
21
3
Fc, Dm (ug/1)
6
14-
15
22'
300-
06Fc,
1600
3
Fc,Trcc (ug/1)
33-
12"
4a"
141-
B9
Pb, Dts (ug/1)
33
0
6
0
0.097
0.63
10
56
3
3
4
Mn,Dis cu g/1)
3r
0
6
0.4r
11g, Tot (ug/1)
19
NI)
ND
ND
ND
0.01
S
3
4
Se. Dis (ug/1)
ZT
6
6
(S
0.29
A g, Dm (u g/1)
28
ND
ND
NT)
ND
025
190
3
Zn. Dis (ug71)
! 3r
0—
0"
21
16
13, Dis (mg/1)
9
0
Cr
S
0
250
3
3
Sulfate (mg/1)
33
44
93
110-
92
250
NA
3
P. Tot (mg/1)
Jr
Tarr
0,04
0.061
0.048-
Nitrate 'Name (mg/1)
33"
6
0'
o
0'
0.23
6
0.11"
0-
NA[
NA
1'KN (mg/1)
8
Nti3, Tot (mg/l)
33
0
0
0
0.00091
NA 3
NH3, Unionized (mg/l)
28
0.003
0.006
0.013
0.0096
0.02
TSS (m2i1)
33
0
0
fT
5.8
NA 3
• ,
upstream of the propsed
. ,. .
Blue Creek Ranch W W TY. This
_ .,
data covers thc period of record of 10/05 through 2/00.
for
Nuke 2: t ne calculated mean is the geometric mean and the stream standard is in units of #/I00 mi. Note that
rummarizatinn purposes, thc value of one was used where there was no detectable amount because the geometric mean of one is
Note J. When sample results were non-d—CfCCt, the value of zero was used- in accordance with the (.0 W (FI"T7c standara
approach for summarization and averaging purposes.
Note 4: The noted parameters were round at fess than c1efectabrc levelsrhe detection levels. however, were ;renter than thc
in -stream standards. In accordance with W Qt'n procedures, ambient wider quality is not determined using non -detect data
when detection levels arc greater than the in -stream standards.
PELs
Page 6 of 15
Draft
May -29-01 01:25P
P.10
Blue Creek Ranch WWTP Preliminary Effluent Limits PEL-Garfield County
In the months of January, June, July, and October, the acute low flow excec dcxl the chronic low flow.
In accordance with WQCD standard procedures, the acute low flow was set equal to thc chronic low
flow for these months.
Table 5
Low Flows for the Roaring Fork River at the Proposed Blue Creek Ranch WWTP
Low Flow
(ct)
Annual
Jan
Feb
Tkar
Apr
May
Jun
Jul
Aug
Sep
Oct
Nov
Dec
(E3
A cute
159
239
201
210
189
159
365
333
282
235
290
284
265
30E3
Chronic
188
239
239
239
227
188
365
333
296
307
290
301
265
IV. Technical Analysis
Low flows and in -stream background data evaluated in sections ll and El arc ultimately used to
determine thc assimilative capacity of the Roaring Fork River near the proposed Blue Creek Ranch
WWTP for pollutants of concern. for all parameters except ammonia, it is the WQCD's approach to
conduct a technical analysis of stream assimilation capacity using the lowest of the monthly low
flows (referred to as the annual low flow) as calculated in the low flow analysis. For ammonia, it is
the standard procedure of the WQCD to determine assimilative capacities for each month using the
monthly low flows calculated in the low flow analysis, as the regulations allow thc use of seasonal
flows when establishing assimilative capacities.
The WQCD's standard analysis consists of steady-state, mass -balance calculations for most
pollutants and modeling for pollutants such as ammonia. The mass-halance equation is used by thc
WQCD to calculate the maximum allowable concentration of pollutants in the effluent, and accounts
for the upstream concentration of a pollutant, critical low flow (minimal dilution), effluent flow and
the water quality standard. The mass -balance equation is expressed as:
M,Q3—MLQI
M2=
Q2
Q, = Upstream low flow (1E3 or 30E3)
Q2 - Average daily effluent flow (design capacity)
Qf Downstream flow (Q, + Q2)
= In -stream background pollutant concentrations
M, — Calculated maximum allowable effluent pollutant concentration
M, = Maximum allowable in -stream pollutant concentration (water quality standards)
PELs Page 7 of 15 Draft
May -29-01 01:25P
P.11
Blue Creek Ranch WWTP Preliminary Effluent Limits PFI. -Garfield County
For non -conservative parameters and ammonia, the mass -balance equation is not as applicable and
thus other approaches are considered where appropriate. Note that conservative pollutants are
pollutants that are: modeled as if mass is conserved and thcrc is no degradation, whereas non-
conservative pollutants degrade and sometimes are created within a receiving stream depending on
stream conditions. A more detailed discussion of the technical analysis for these parameters is
provided in the pages that follow.
Pollutants of Concern
The following pollutants were identified by the WQCD as pollutants of concern for this facility:
• BOD,
• TSS
• Percent removal
• Oil and Grease
• pH
• DO
• Fecal Coliform
• Total Residual Chlorine
• Ammonia.
There arc no in -stream watcr quality standards for BOD„ TSS, percent removal, and oil and grease
for the Roaring Fork River. Thus, assimilative capacities were not determined for these parameters
in this section and an antidegradation review for these parameters was not conducted in Section V.
However, the evaluation of applicable limitations for these pollutants can be found in Section VI,
Regulatory Analysis.
During assessment of the facility, nearby facilities, and receiving stream water quality, no additional
parameters were identified as pollutants of concern. It should he noted that cyanide and metals arc
not evaluated as part of PELs development because it is the WQCD's approach to ensure control of
cyanide and metals through a pretreatment program, if necessary, versus through wastewater
treatment.
Blue Creek Ranch WWTP: The proposed Blue Creek Ranch WWTP will be located near the town
of Mulford in the Southwestern -most corner of Garfield County, specifically, the NW quarter of the
SE quarter of Section 31, Township 7 South, Range 87 West of the 6th P.M. The proposed design
capacity of the facility is 0.02 MGD (0.031 cfs). The proposed wastewater treatment is a mechanical
wastewater treatment process. The technical analyses that follow include assessments of the
assimilative capacity based on this proposed design capacity.
Nearby Sources
An assessment of nearby facilities based on EPA's Permit Compliance System (PCS) database found
♦ u1JM444A164-, ui vw uwu \.v1.41t6.r 41 G4. 4-7G4061.11JG 1/4.11 10 E11UAl1 lIlLy LU L.aibll: Al1U i11A111 I�ULLIILIG.I
(within five miles upstream) facilities in these counties were assessed also. Several of the facilities
conducted construction related operations and thus had no pollutants of concern in common with
PELs Page 8 of 15 Draft
May -29-01 01:25P
P_12
Blue Creek Ranch WWTP Preliminary Effluent Limits PEL-Garfield County
proposed Blue Creek Ranch WWTP. Other facilities discharged to di fferent watersheds or wcrc
located more than twenty miles from the proposed Blue Creek Ranch WWTP and thus wcrc not
considered to be of relevance to this analysis.
The nearest dischargers were:
• Thc Mid -Valley Metropolitan District WWTP (COG584007), located 4 miles upstream
near the town of El Jebel, discharges directly into the Roaring Fork River. A few milts
farther upstream the Basalt Sanitation District WWTP (C00021491), which services the
town of Basalt, also discharges to the Roaring Fork River.
• The Ranch at Roaring Forks (COG584051) discharges to the Roaring Fork River
approximately two miles downstream and the Town of Carbondale WWTP
(COG584050) discharges four miles downstream of the proposed Blue Creek Ranch
WWTP.
The ambient water quality background concentrations used in the mass -balance equation account for
pollutants of concern contributed by upstream sources, and thus it was not necessary to model
upstream dischargers together with the Blue Creek Ranch WWTP when determining available
assimilative capacities in thc Roaring Fork River. Because of the significant dilution available
relative to thc size of the dischargers of concern, downstream dischargers were not found to affect
the assimilative capacity calculations for the Roaring Fork River near the proposed Blue Creek
Ranch WWTP.
Based on available information, there is no indication that non -point sources were a significant
source of pollutants of concern_ Thus, non -point sources were not considered in this assessment.
BODS, TSS1and Percent Removal: There arc no in -stream water quality standards for BODS, TSS,
and percent removal for the Roaring Fork River. Thus, assimilative capacities for these parameters
were not calculated.
Oil and Grease: There are no in -stream water quality standards for total oil and grease for the
Roaring Fork River. Thus, assimilative capacities for total oil and grease were not calculated.
pH: Thc pH of a stream measures the intensity of the acidity or alkalinity of the stream. When pH
falls outside of the neutral range, it can be harmful to aquatic life. To determine assimilative
capacities of a stream for pH, the buffering capacity of the receiving stream and its interaction with
the discharge contributions would need to be assessed in a complex evaluation.
An evaluation of pl1 data available for the Roaring Fork River near the proposed Blue Creek Ranch
WWTP found that the 15' percentile value was well above the minimum in -stream water quality
standard and the 85'h percentile value was well below the maximum in -stream water quality standard.
Because only limited data are available and because ambient water quality data indicate that no
further controls are needed to meet in -stream pH standards, a complex evaluation of the assimilative
capacity for pH is not warranted for this facility.
PELs Page 9 of 15 Draft
May -29-01 01:26P
P.13
Blue Creek Ranch WWTP Preliminary Effluent I .imits PEL-Garfield County
DO: The availability of dissolved oxygen in receiving streams is critical for aquatic life.
Decomposition of organic matter and nitrification within receiving streams arc generally the causes
of depletion of DO in receiving waters.
For a non -conservative parameter likc UO, a simple mass balance cannot be used to determine
assimilative capacity. Instead, DO background, stream flow, 5 -day biochemical oxygen demand and
ammonia loading, stream dimensions, temperature, and estimates of effluent DO may bc
incorporated into models such as the Streeter -Phelps DO model or STREAMDO to simulate the
impact of the proposed Bluc Creek Ranch WWTP discharge.
An evaluation of DO data available for the Roaring Fork River near the proposed Bluc Creek Ranch
WWTP found that the 15th percentile value was well above the minimum in -stream water quality
standard. Because only limited data arc available and because ambient water quality data indicate
that no further controls are needed to meet in -stream standards for DO, modeling was not conducted
as part of this evaluation and no further discussion of DO is provided.
Chlorine: The mass -balance equation was used to determine the assimilative capacity for chlorine.
There are no point sources discharging total residual chlorine within one mile of the proposed Blue
Creek Ranch W WTP. Because chlorine is rapidly oxidized, in -stream levels of residual chlorine arc
detected only for a short distance below a source. Ambient chlorine was therefore assumed to bc
zero.
Using the mass -balance equation provided in the beginning of Section IV, the acute and chronic low
flows set out in Section III, the chlorine hackground concentration of zero as discussed above, and
the in -stream standards for chlorine shown in Section 11, assimilative capacities for chlorine were
calculated. The data used and the resulting calculations of the allowable discharge concentration, M2,
are also set forth below.
Parameter
Q, (c fs)
Q 2 (cfs)
Q 3 (cis)
M 1 (ug/1)
M 3 (ug/!)
M Z (ug/1)
Acute Chlormc
159
(on
159.031
0
f9
—11
71
66,721
Chronic Chrome
188
0.031
188.031
0
Fecal Coliform: There are no point sources discharging fecal coliform within one mile of the
proposed Bluc Creek Ranch WWTP. Thus fecal coliform assimilative capacities were evaluated
separately.
It is the standard approach of the WQCD to perform a mass -balance check to determine if fecal
coliform standards are exceeded. And, as is standard WQCD procedure, the checks arc only
conducted on the chronic low flows as set out in Section III. Using the mass -balance equation
provided in the beginning of Section [V, the background concentration for fecal coliform contained
in Section II, and the in -stream standards for fecal coliform shown in Section II, checks for fecal
PELs Page 10 of 15 Draft
May -29-01 01:26P
P-14
Blue Creek Ranch WWTP Preliminary Effluent Limits PEL-Garfield County
coliform were conducted. The data used and the resulting calculations of the allowable discharge
concentration, M2, are also set forth below.
Parameter
Q 1 (cfs)
Q 2 (cfs)
Q l (cfs)
M 1 (4/100
M 3 ('6/100
M2 (#/100
ml)
nil)
ml)
Fecal Cororm
fir
0.031
188.031
2
206
1,200,974
Ammonia: Ammonia is present in the aqueous environment in both ionized and un -ionized forms.
It is the un -ionized form which is toxic and which is addressed by water quality standards. The
proportion of total ammonia present in un -ionized form in the receiving stream is a function of the
upstream and effluent ammonia concentrations, and the pH and temperature of thc receiving stream
and of the effluent, combined.
The Colorado Ammonia Model (CAM) is a software program designed to project the downstream
effects of ammonia and the ammonia assimilative capacities available to each discharger based on
upstream water quality and effluent discharges. To develop data for the CAM, an in -stream water
quality study must be conducted of the upstream receiving water conditions, particularly the pH and
corresponding temperature, over a period of at least one year.
There were no data in the Roaring Fork River near the proposcd Blue Creek Ranch WWTP that
could be used as adequate input data for the CAM. Therefore, the WQCD standard procedure is to
rely on default values for the allowable chronic concentrations of in -stream total ammonia, which are
provided in the Colorado Total Maximum Daily Load and Wasteload Allocation Guidance and the
CDPS Summary of Rationale General Permit for Domestic Wastewater Treatment Facilities that
Discharge to Receiving Waters with a Chronic Low Flow: Design Flow Ratio of 100:1 or Greater.
Note that acutc values are not provided in these sources and thus are not evaluated as part of this
assessment.
Using the mass -balance equation provided in the beginning of Section TV, the acute and chronic low
flows set out in Section 1I1, the mean ammonia background concentration shown in Section II, and
the in -stream standards found in the Colorado Total Maximum Daily Load and Wasteload Allocation
Guidance and thc CDPS Summary of Rationale General Permit forpomectic Wastewater Treatment
Facilities that Discharge to Receiving Waters with a Chronic Law flow: Design Flow Ratio of
100:1 or Greater for M,, assimilative capacities for chronic total ammonia were calculated. The data
used and the resulting calculations of the allowable discharge concentration, M2, are contained in
Table 6.
V. Antidegradation Review
As set out in The Basic Standards and Methodologies of Surface Water, Section 31.8(2)(6), an
antidegradation analysis is required except in cases where the receiving water is designated as "Usc
Protected." Note that "Use Protected" waters are waters that the Commission has determined do
PELs Page 11 of 15 Draft
May -29-01 01:27P
P.15
Blue Creek Ranch WWTP Preliminary Effluent Limits PEI, Garfield County
not warrant the special protection provided by the outstanding waters designation or the
antidegradation review process" as set out in Section 31.8(2)(b). The antidcgradation section of the
regulation became effective in December 2000, and therefore antidegradation considerations are
applicable to the proposed Blue Creek Ranch WWTP permit issuance.
According to the Classification and Numeric Standards for Upper Colorado River Basin and North
Platte River (Planning Region 12), stream segment COUCRFO3 is Undesignated. Thus, an
antidegradation review is required for this segment if new or increased impacts are found to occur.
Table 6
Monthly Assimilative Capacities for Ammonia on the Roaring Fork River
at the Proposed Blue Creek Ranch WWTP
Parameter
Q (cfs)
Q2 (cfs)
Q a (efs)
Mr
M3
Ms
NH3, Tot (mg/1) Jan
239
0.031
239.031
0.00091
0.70
5,390
N H 3 To t (mg/l) Feb
233'
0.0-31
2.0
0.00091
0.60
4,619
NH3, Tot (tng/1) Mar
22'1
1.1
0.1
2-T7.03 r
1 , 1
0.00091
0.40
0.40
3,077
2,923
NH3, Tot (mg/1) Apr
NH3. Tot (mg/1) May
t •
1.
t t 1
1
0.30
1,814
NH3. Tot (meal) Jtm
365
�.031
365.031-
0.00091
0.30
3,522
NH3, Tot (mg/1) Jul
333
0.031-
3-33.03 r
0.00-0-91-
0.30
3,213
N113, Tot (mg/1) Aug
796'
0.03 f
296.0-31-
0.
0.30
2,856
NH3, Tot (mg/1) Scp
107
0.031
307.031
0.
0.30
2,962
NH3. Tot (mg/1) Oct
390
0.031
290.031
0.00091
0.30
2,798
NH3, Tot (mg/1) Nov
301
0.031
301.031
0.00091
0.30
2,904
NH3, Tot (mgil) Dec
26
0.031
265.031
0.00091
0,50
4,267
The ratio of the low flow of the Roaring Fork River to the design flow of the proposed Blue Creek
Ranch WWTP is 6065:1. Section 31.8 (3)(c) specifics that the discharge ofpollutants should not be
considered to result in significant degradation of the reviewable waters if the ratio of the low flow of
the receiving water to the facility flow is greater than 100:1. Thus, condition 31.8(3)(c) of the
regulations is met and no further antidegradation evaluation is necessary.
VI, Regulatory Analysis
Regulation 62, the Regulations for Effluent Limitations, includes effluent limitations that apply to all
discharges of wastewater to State waters, with the exception of storm water and agricultural return
.IVYV J. • IiCoaG al\. 411%. }J1v1JVJ4..0 0.4111.11 YY VY it ulJl.11ul6c. l JU/G
7 contains a summary of these limitations.
PELs Page 12 of 15 Draft
May -29-01 O1:27P
P.16
Blue Creek Ranch WWTP Preliminary Effluent Limits PEL-Garfield County
Tn addition to these regulations, the State has developed the Procedure for Selection of Fecal
Coliform Limitations Permit Conditions that specifies a 30 -day average limit of 6,000 colonies per
100 ml and a 7 -day average limit of 12,000 colonies per 100 ml when the ratio of the receiving
stream flow to design flow is greater than ten to one.
PELs Page 13 of 15 Draft
May -29-01 01:27P
Blue Creek Ranch WWTP Preliminary Effluent Limits
P-17
PEL-Garfield County
Table 7
Specific Limitations for the Discharge of Wastes
Parameter
7 -Day Average
. -.30-Day:Average
Instantaneous
Mhximum
BODS
45 mg/I
30 mg/1
NA
TSS, mechanical plant
45 mg/1
30 mg/1
NA
TSS, aerated lagoon
110 mg/1
75 mg/1
NA
TSS, non-aerated lagoon
160 mg/1
105 mg/1
NA
BOD, Percent Removal
85%
—
TSS Percent Removal
8S%
Total Residual Chlorine
0.5 mg/1
pH
6.0-9.0 su range
Oil and Grease
10 mg/I
Note that the TSS limitations shown above vary based on the type of wastewater treatment processes
used at the facility. The Regulations for Effluent Limitations waive the 85 percent removal
requirements for TSS where waste stabilization ponds, both aerated and non-aerated, arc used as the
principal process for treating domestic wastes.
VII. Preliminary Effluent Limits
The regulations require the use of the most stringent effluent limit for permit limitations. Thus, the
PELs reflected in Table 8 include the most stringent of the following:
• Water quality -based effluent limits as discussed in the technical analysis contained in
Section IV
• ADBELs as discussed in the antidcgradation review provided in Section V
• Effluent limits prescribed by the regulations based on the regulatory analysis provided in
Section VI.
r�
FrppoxettBute Cree�v�l[�V]' -
T Prelimintary EllttteutLimits for Dtsrharge o el pout Fork;River
BOD, (mg/1)
BODS (percent removal)
TSS (mg/1)
45 (7 -day average), 30 (30 -day average)
85 (30 -day average)
45 (7 -day average), 30 (30 -day average)
TSS (percent removal)
85 (30 -day average)
Oil and Grease (mg/1)
10 (maximum)
pH (s.u.)
6.5-9.0 (minimum -maximum)
Fecal Coliform (organisms/100 ml)
Total Residual Chlorine (mg/1)
12,000 (7 -day average), 6,000 (30 -day average
0.5 (maximum)
PEI.s Page 14 of 15
Draft
May -29-01 01:28P
P-18
Blue Creek Ranch W WTP Preliminary Effluent Limits PEL-Garfield County
The Procedure fur Selection of Fecal Coliform Limitations Permit Conditions specifies that the 7 -
day average limit must be calculated as two times the 30 -day average limit.
Note that limitations for ammonia were not necessary for this facility because the assimilative
capacity of the receiving water, as discussed in Section IV, is large enough to establish total
ammonia effluent concentrations for all months at 30 mg/1. Because treated sanitary sewage effluent
is not expected to have a total ammonia concentration greater than 30 mg/1, no additional allocations
were determined as per WQCD procedure.
VIII. References
Colorado Total Maximum Daily Load and Wasteload Allocation Guidance, CDPHE, WQCD,
November 1991.
Classification and Numeric Standards for Upper Colorado River Basin and North Platte River
(Planning Region 12), Regulation No. 33, CDPHE, WQCC, November 30, 1999.
The Basic Standards and Methodologies for Surface Water Regulation 31, CDPHE, WQCC,
November 8, 2000.
Procedure for Selection of Fecal Coliform Limitations Permit Conditions, CDPHE, WQCD,
1976.
Regulations for Effluent Limitations, Regulation 62, CIDPIIE, WQCC, November 9, 1998.
CDPS Summary of Rationale General Permit for Domestic Wastewater Treatment Facilities that
Discharge to Receiving Waters with a Chronic Low Flow:Design Flow Ratio of 100:1 or
Greater, CDPS Permit COG -584000, Statewide, CDPHE, September 14, 1994.
PFL,s
Page 15 of 15 Draft
SEWER CONNECTION AGREEMENT
EXHIBIT G
DRAFT
THIS SEWER CONNECTION AGREEMENT ("Agreement") is made and entered into
as of the — day of , 2001, by and between BLUE CREEK LAND
HOLDINGS, LLC, a Colorado limited liability company ("Blue Creek"), and ASPEN
EQUESTRIAN ESTATES, LLC, a Colorado limited liability company ("AEE"), and ASPEN
EQUESTRIAN ESTATES HOMEOWNERS ASSOCIATION ("AEEHOA");
RECITALS:
A. Blue Creek is the owner of that certain real property located in Garfield County,
Colorado commonly known as Blue Creek Ranch, which property is described on Exhibit "A"
attached hereto and incorporated herein by this reference ("Blue Creek Ranch"); and
B. AEE is the developer of that certain real property located in Garfield County,
Colorado known as Aspen Equestrian Estates, which property is described on Exhibit "B"
attached hereto and incorporated herein by this reference ("AEE Property"); and
C. Owned by AEEHOA and constructed upon the AEE Property is a sewage
collection system (AEE Sewage Collection System") which collects wastewater and sewage
from the individual lots and structures located on the AEE Property and conveys such to the
Ranch at Roaring Fork ("Ranch") for treatment and disposal at the Ranch's wastewater treatment
plant ("Ranch Wastewater Plant"); and
D. In the conveyance of the AEE Sewage Collection System from AEE to
AEEHOA, AEE has reserved unto itself the right to make the AEE Sewage Collection System
available to third parties and to receive compensation and cost recovery for the original
construction thereof, in accordance with such documents of transfer; and
E. Blue Creek is developing Blue Creek Ranch and will construct a wastewater and
sewage collection system on its property; and
F. Blue Creek desires to connect its collection system to AEE's main collection
trunk line for purposes of conveying its wastewater through the AEE Property and to the Ranch,
in the event the Ranch offers sewer treatment service to Blue Creek; and
G. AEE and AEEHOA are willing to allow such connection and wastewater
conveyance and willing to grant such associated rights to Blue Creek, pursuant to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements made herein, Blue
�,... _1. A T'T'TTrA A
1. Grant of Option for Sewer Connection. Subject to the terms and conditions of this
Agreement, AEE hereby grants to Blue Creek an option to connect Blue Creek's sewage
W:`,,Lane&Cumming'.J91A`Docs`,Sewer Service Agreement AEE & Blue Creek CLEAN I
01.docW:`•Lane&Cumming'591.1'.Does Sewer Service Agreement AEE 2 Blue C:Feek REDLINE OI.doc
collection system to the AEE main sewer collection line and related infrastructure presently
constructed upon AEE as shown on the map attached hereto as Exhibit C and incorporated herein
by reference ("AEE Main Collection Line"), at the point of connection described further herein,
for purposes of conveying wastewater flows from Blue Creek Ranch through the AEE Property
and on to the Ranch for final treatment at the Ranch Wastewater Plant ("Option for Sewer
Connection"). Blue Creek shall exercise the Option for Sewer Connection by notice in writing to
AEE on or before 5:00 p.m. on December 31, 2003 (the "Option Deadline"). Such notice shall
provide AEE with the estimated time for the construction by Blue Creek of the facilities
necessary to connect Blue Creek Ranch to AEE's Main Collection Line and an estimated date
when such actual sewer flow conveyance will be required. In the event Blue Creek does not
exercise the Option by the Option Deadline or otherwise provides notice in writing to AEE of
termination of this Agreement, this Agreement shall automatically terminate and be of no further
force or effect and the parties shall have no further obligation hereunder, except AEE shall
refund the Option Fee as further provided herein.
2. Option Fees and Review Fees. As an express condition precedent and in
consideration for granting such Option for Sewer Connection, Blue Creek shall pay to AEE the
sum of twenty-five thousand dollars ($25,000.00) or such other consideration, goods or services
valued at $25,000 as mutually agreed upon by the parties in a separate written agreement
("Option Fee"). As of the date hereof, Blue Creek has paid the amount of five thousand dollars
($5000.00) to AEE to review and enter into the negotiations for this Agreement, payment of
which is acknowledged by AEE and is credited towards the $25,000 Option Fee. Such payment
of the balance of the Option Fee of twenty thousand dollars ($20,000) shall be due upon full
execution of this Agreement, unless however, payment of the balance of the Option Fee is in the
form of Blue Creek providing goods and/or services to AEE in the manner described above, then
in such case, the parties shall mutually agree upon the timing of performance in this respect. The
Option Fee shall be refundable if this Agreement is terminated pursuant to the terms contained
herein. In the event the Option for Sewer Connection is exercised, the Option Fee shall be
credited against the Sewer Connection Fee described in Paragraph 3 below. In addition to the
Option Fee, Blue Creek agrees to pay all of AEE's reasonable attorneys' fees incurred in the
negotiation and review of this Agreement, payment of which has been made by Blue Creek to
AEE as of the date hereof and is hereby acknowledged by AEE. The payment of attorney fees is
non-refundable.
3. Sewer Connection Fee. In consideration for allowing connection and conveyance of
sewer flows from Blue Creek Ranch through AEE's Main Collection Line in accordance with
this Agreement, Blue Creek shall pay the sum of two hundred thousand dollars ($200,000.00),
which payment shall be due and payable to AEE at the time of execution of the Blue Creek
Ranch final plat (the "Sewer Connection Fee"). Subsequent to the payment of the Sewer
Connection Fee, Blue Creek shall be entitled to make physical connection to the AEE Main
1., U11L4. L1U11 L111LJ U11U LU11 V VV 4LJL\. ov Ull.l L1ll UU611 L11L ALL 1 1 Up Vl Ly LU Llll. 1\U11%.11 U. )% L 11J1 L11
herein.
4. Ranch Wastewater Treatment Contingency. The right of Blue Creek to commence
construction of the Connecting Main is expressly contingent upon the necessary approval being
obtained from the Ranch to permit and accept wastewater flows from Blue Creek Ranch for
treatment and disposal at the Ranch Wastewater Plant. Such Ranch approval shall be evidenced
2
by a fully executed Sewer Service Agreement between Blue Creek and the Ranch. If the Ranch
declines to offer wastewater service to Blue Creek, or if wastewater service at the Ranch
Wastewater Plant is not extended for any other reason, as evidenced by a written final
determination from the Ranch or the Colorado Water Quality Control Division, then this
Agreement shall automatically terminate and be of no further force or effect and the parties shall
have no further obligation hereunder, except that AEE shall refund the Option Fee to Blue Creek
to the extent this fee has been paid and/or performed by Blue Creek.
5. Master Sewer Association. It is contemplated that Blue Creek and AEE shall form a
master sewer association that shall hold title and easement rights to, and shall govern, control,
maintain and operate, the sewer collection and transmission systems, as well as, all connecting
lines, lift stations or other sewer facilities, located on both Blue Creek Ranch, the AEE Property
or other adjacent properties (the "AEE/BLUE Sewer Association"). The AEE/BLUE Sewer
Association shall be consolidated at the outset or as soon as feasible upon execution of this
Agreement, with the AEE/BLUE Water Association, to the extent such is or is to be formed as
described in a separate Water Supply and Connection Agreement between the parties, to form a
single entity called the AEE/BLUE Water & Sewer Association. The Association shall be
responsible for adopting rules and regulations governing sewer usage within both developments,
billing all sewer users within both developments an equal charge for sewer usage and reserve for
replacement costs, and operating, maintaining, improving, repairing, replacing and taking such
other necessary and prudent actions with respect to the sewer pipelines and all sewer
transmission, lift and distribution facilities within both developments ("Sewer System
Infrastructure"). It is agreed and acknowledged that the Board of Directors for such master
association shall consist of two members from the homeowners association for Blue Creek
Ranch and two members from the homeowners association for the AEE Property. In the event
the AEE/BLUE Water & Sewer Association is formed, there shall only be one Board of
Directors comprised of four members as described above. The Board of Directors shall have
such powers including, but not limited to, deciding and acting upon all Sewer System
Infrastructure matters. Such "infrastructure matters" include, but are not limited to, proposals for
sewer system infrastructure or facilities repair, replacement, maintenance, construction,
extension, cleaning, operation, monitoring and management. All Board of Director decisions,
including, but not limited to, all "infrastructure matters," management, control and operation
decisions, shall be made by not less than a 75% vote of the Board of Directors. If a 75% vote
cannot be reached on an "infrastructure matter" submitted for a vote, then the matter or question
shall be submitted to a neutral, qualified, third -party engineer or hydrologist for an independent
determination. The engineer or hydrologist recommendation shall be binding and shall have the
same effect as if action on the proposed matter received a 75% vote of the Board of Directors.
All homeowners within Blue Creek Ranch and the AEE Property shall be subject to and shall
comply with any and all rules and regulations adopted by the AEE/BLUE Sewer (or Water &
Sewer) Association. The parties agree to provide for compliance with such rules and regulations
111 ule niasier ueelarauons 01 euve11al11J, conuluons, anu res111011u11S 101 111C11 Iespcl.11vC
properties. The Association shall be formed jointly by the parties and articles of incorporation
for the Association, or consolidation articles for a Water & Sewer Association as the case may
be, shall be filed with the Secretary of State within ten (10) days from Blue Creek's exercise of
the Option for Sewer Service. The Association shall thereafter obtain a property and liability
3
insurance policy to cover the sewer facilities and its operations on both AEE and Blue Creek
Ranch and shall name AEE and Blue Creek as a co-insured on such policy.
6. Installation of Blue Creek Sewage Facilities. Blue Creek shall be responsible, at its
sole cost and expense, to design and construct a sewer collection system, including any and all
sewer lines, pipes, pumps, valves, shut-off valves, meters, and other related facilities and
improvements required to collect and transmit sewage and wastewater from the Blue Creek
Ranch development ("Blue Creek Collection System"), and to design and construct a main
collection sewer trunk line (the "Connecting Main") to transmit and convey wastewater from the
Blue Creek Collection System to the AEE Main Collection Line. Such Collection System and
Connecting Main shall be constructed in accordance and conformance with the requirements,
standards and conditions of the Ranch, any Sewer Service Agreement entered into with the
Ranch, the Ranch's Rules and Regulations and/or any committees or management organizations
associated with Ranch wastewater service, including any provisions for shut-off and metering
sewer flows and strength. Blue Creek shall be responsible for connecting the Blue Creek
Collection System via the Connecting Main to the AEE Main Collection Line at that point
located near the entrance to the AEE Property, as shown more fully on the Plans and
Specifications and graphically on Exhibit D attached hereto and incorporated herein by reference
(the "Point of Connection"). AEE and/or the Association shall have the right to inspect the
construction and connection of the Connecting Main to the Point of Connection to insure that
such sewer line and connection have been constructed in accordance with acceptable engineering
standards and the requirements of the Ranch, provided however, such inspection shall not be
deemed certification or acquiescence that such standards and requirements have been met.
7. Utilization of Connecting Main from AEE to the Ranch. Prior to commencement of
construction of the Connecting Main, Blue Creek shall comply with and meet any and all
applicable requirements of the Sewer Connecting Main Agreement, dated September 21, 1999,
between the Ranch, AEE and St. Finnbar and recorded at Reception No. 553171 of Garfield
County Records (the "Sewer Connecting Main Agreement"), as well as, comply with any
applicable provisions of the Sewer Service Agreement, dated September 22, 1999, between the
Ranch and AEE and recorded at Reception No. 553170 of Garfield County Records. Such
obligations or requirements include, but are not limited to, (1) securing all necessary easements
and rights to connect to and convey sewage through the "Connecting Main" constructed along
the Lot 12/13 property boundary at the Ranch at Roaring Fork, Phase V (the "AEE/St Finnbar
Connecting Main"), in accordance with the terms and conditions of the Sewer Connecting Main
Agreement or other agreements which have been or may be necessary to be entered into; and (2)
complying with the "Future Cost Recovery and Capacity" provision of the Sewer Connecting
Main Agreement, including payment of the "developer rebate" described in such agreement.
AEE shall cooperate in granting the necessary rights and approvals to Blue Creek to share in the
AEE/St.Finnbar Connecting Main upon compliance with the Sewer Connecting Main
Agreement, at no additional consideration from Blue Creek, except to pay AEE's share of the
"developer rebate." In the event Blue Creek is unable to obtain and secure the necessary
easement rights, authorizations and agreements from the other third parties to utilize the
AEE/St.Finnbar Connecting Main and facilities identified in the above mentioned agreements,
then this Agreement shall automatically terminate and be of no further force or effect and the
parties shall have no further obligation hereunder, except that AEE shall refund the Option Fee to
Blue Creek to the extent this fee has been paid and/or performed by Blue Creek.
4
8. Easement for Blue Creek. Upon the exercise of the Option for Sewer Connection,
and so long as the above conditions precedent for commencement of construction of the
Connecting Main have been met, AEE hereby grants to Blue Creek a temporary construction
easement on, over and across that portion of the AEE Property between Blue Creek Ranch and
the Point of Connection in order to allow Blue Creek to construct, install and connect the
Connecting Main to the AEE Main Collection Line. Upon final construction and connection of
the Blue Creek Collection System and Connecting Main, AEE shall grant to Blue Creek a
perpetual non-exclusive easement ten (10) feet on either side of the center line of the Connecting
Main as such is located on AEE's Property, as well as, the AEE Main Collection Line for
purposes of conveying wastewater through the AEE Property to the Ranch and operating,
maintaining, repairing, improving, and replacing said line or facilities (the "Easement"). A copy
of the Easement is attached hereto as Exhibit E and incorporated herein by this reference. Upon
the payment of the Sewer Connection Fee to AEE the parties agree to execute the Easement.
The attorneys for Blue Creek Ranch or an escrow agent designated by both parties shall hold the
Easement until the legal description for the Connecting Main on the AEE Property is prepared by
Blue Creek. Once the Connecting Main has been installed and connected, Blue Creek shall have
a legal description prepared for the Connecting Main installed on the AEE Property. The legal
description shall be approved by both parties, which approval shall not be unreasonably
withheld. It shall then be attached to the Easement and the Easement shall be recorded in the
Garfield County real estate records. To the extent the Connecting Main is ever required to be
relocated upon the AEE Property in order to continue the sewer service set forth herein, AEE and
Blue Creek shall cooperate in good faith in the determination of the relocation of the Connecting
Main to a location which does not adversely affect the present or then reasonably foreseeable
development or redevelopment of the AEE Property, and in the preparation of an amendment of
the legal description of the Easement to reflect the relocated facilities. Any such amended legal
description to the Easement shall be recorded in the Garfield County real estate records.
9. Sewer Line Service to Blue Creek Ranch. Upon the completion of the Connecting
Main and connection of the Connecting Main to the AEE Main Collection Line in accordance
with the terms and condition contained herein, AEE agrees to allow sewer flows to be carried in
the AEE Main Collection Line and transmitted through the AEE Property, subject to the terms
and conditions set forth in this Agreement. Blue Creek shall only transmit and convey the sewer
flows associated with 52 EQR's of water usage as shown on the Blue Creek Ranch Estimated
Water Requirements Table attached hereto and incorporated herein as Exhibit E (the "Blue
Creek Ranch Water Demand"), or the sewer flows permitted and approved for treatment by the
Ranch, whichever is greater, so long as there is capacity available in the AEE Main Collection
Line. For purposes hereof, the capacity of the 8" AEE Main Collection Line shall be allocated to
Blue Creek and AEE in proportion to each development's EQR capacity (i.e., 52/117.6 to Blue
Creek, 65.6/117.6 to AEE). Sewer line service by AEE hereunder shall be appurtenant to the
Blue Creek Ranch and shall not be transferable by Blue Creek to any other development or
property.
10. Conveyance of Blue Creek and AEE Sewer Facilities and Easements to Association.
Upon the completion of the Blue Creek Collection System and connection of the Connecting
Main to the AEE Main Collection Line, Blue Creek shall transfer and convey all easement rights
associated therewith, including the Easement described in Paragraph 8 above, to the Association
free and clear of all encumbrances. At the same time, AEE shall transfer and convey all
5
easement rights associated with the AEE Collection System and AEE Main Collection Line to
the Association free and clear of all encumbrances. The parties shall also convey all easement
rights they respectively hold in the AEE/Blue Creek Connecting Main and alignment as
described in the Sewer Connecting Main Agreement. The Association shall thereafter be
responsible for operating, maintaining, improving, repairing and replacing the Blue Creek and
AEE Collection Systems, the Connecting Main, the AEE Main Collection Line and the AEE/St.
Finnbar Connecting Main (collectively, the "AEE/Blue Creek Sewer Facilities").
11. Water Service Fees. Following completion of the connection of the Connecting
Main to the AEE Main Collection Line, the Association shall charge sewer service fees to all
AEE and Blue Creek Ranch lot owners. All lot owners within the AEE Property and Blue Creek
Ranch shall be charged the same basic sewer service rate by the Association, which charges for
sewer service shall be submitted directly by the Association to each lot owner within both
developments. Unused or inactive EQRs owned by the parties prior to conveyance of lots within
the respective developments shall be assessed a service fee of $15.00 per month per EQR.
12. Use of Sewer Service. Utilization of sewer service by the individual homeowners
shall be monitored by individual water meters installed on each residence and assuming that
sewer flows equal 95% of such water delivery. Such individual meters shall be required by the
parties hereto. Each lot owner within both developments shall thereafter be obligated to pay for
the amount of sewer flows associated with each respective lot as recorded by its individual meter
pursuant to the rates and regulations adopted by the Association. The Association shall
determine the method and requirements for determining and charging for sewer flows from non-
residential uses and structures. Each lot owner or sewer user within Blue Creek Ranch and the
AEE Property shall enter into a sewer service contract with the Association which shall set forth
specific terms and provisions related to sewer usage, payment obligations, and other related
matters.
13. Operation, Maintenance and Repair. Upon installation of the Connecting Main, the
Association shall thereafter be solely responsible for operating, maintaining, repairing,
improving, and replacing the AEE/Blue Creek Sewer Facilities, and for collecting for all costs
associated therewith. AEE and Blue Creek shall provide in the protective covenants of its
respective homeowners' associations that such associations shall include as a cost of which they
can place a lien on the lots of their respective members, the charges payable under this
Agreement by an owner who is delinquent in the payments to the Association and shall upon
request of the Association, foreclose such lien and collect such delinquent payments, together
with interest thereon at the rate of eighteen percent (18 % per annum) and collect costs and
attorney fees. Unless set forth otherwise in this Agreement, the costs associated with the
obligations set forth above shall be assessed evenly to the parties hereto and/or the homeowners
within such developments by the Association. The Association shall keep the AEE/Blue Creek
Sewer Facilities and all related appurtenances, and all future sewer facilities, in good working
order at all times and ensure that such Sewer Facilities are at all times capable of providing
sewer service and conveyance.
14. Additional Water Users. The parties agree that nothing herein shall prevent AEE or
Blue Creek, or the Association if formed, from making the main trunk lines of the AEE/Blue
Creek Sewer Facilities available to other properties for sewer flow conveyance through the AEE
6
and/or Blue Creek properties, and from receiving compensation or cost recovery therefore
provided however, Blue Creek shall solely receive the compensation for a third party's
utilization of the Blue Creek Collection System and components thereof constructed upon Blue
Creek Ranch, as well as, the Connecting Main; and AEE and Blue Creek shall share evenly in
compensation for a third party's utilization of the shared sewer lines and facilities consisting of
the AEE Main Collection Line and the AEE/St. Finnbar Connecting Main. The parties agree that
together they shall engage competent engineering to determine if any such additional service
through the sewer lines will adversely impact the ability of the parties to receive sewer service
and carry sewer flows as provided herein. If such additional sewer user is to be considered, the
parties agree that as a condition to offering such service, the third party must enter into an
agreement with the parties similar in scope and nature as this Agreement.
15. No Interference. AEE and Blue Creek agree that neither of them shall undertake any
action or, to the extent they are affirmatively obligated to prevent an action to occur or to allow
any condition to exist, that interferes with uninterrupted sewer service to either of their
properties.
16. Breach of Contract; Default. In the event of a breach of any of the terms and
conditions of this Agreement, the non-breaching party shall give the party in default written
notice of said breach and a thirty (30) day right to cure; provided, however, that if it is
determined in either parties sole discretion that the cure of any breach by the other party is
immediately necessary in order to protect the health, safety, and welfare of any of the water
users, the 30-day cure period set forth above shall not apply. In the event the breaching party has
not cured said default within the 30-day period, or begun the diligent undertaking of good faith
efforts to cure the default, the non-breaching party may bring an action in the Garfield County
District Court for damages, mandatory injunctive relief, and/or specific performance and shall be
entitled to recover from the other party reasonable attorneys' fees and costs expended in
connection with such action.
17. Assignment. Blue Creek shall have the right, without the consent of AEE, to assign
all or a portion of its right, title and interest in the Option for Sewer Connection and this
Agreement to any other party that is a successor in ownership to all or any portion of Blue Creek
Ranch, and to any homeowners' association formed to govern all or any portion of Blue Creek
Ranch, so long as any such assignee shall assume in writing Blue Creek's obligations hereunder
and, to the extent that all of such obligations are assigned, Blue Creek is released from any
responsibility for such obligations subsequent to the assignment thereof. AEE shall have the
right, without the consent of Blue Creek, to assign all of its right, title and interest in this
Agreement to any other party that is a successor in ownership to all or any portion of the sewer
facilities, so long as any such assignee shall assume all of AEE's obligations hereunder and
provide such assurances to Blue Creek in writing. AEE shall thereafter be released from any
obligations hereunder that are subsequent to such assignment.
18. Termination of Association. The parties recognize that the provision of sewer
service to Blue Creek Ranch and the AEE Property is a vital necessity. Therefore, it is
understood that in the event the Association is terminated for any reason, the Association shall
convey to Blue Creek and AEE, their successors and assigns, without any consideration, the
AEEBIue Creek Sewer Facilities, together with any and all easements and other assets and
7
rights of the Association in order that the parties can continue to provide sewer service to the
homeowners within each development. Thereafter, the AEE homeowners association and the
Blue Creek homeowners association shall be evenly responsible for operating, maintaining,
repairing, improving and replacing the AEE/Blue Creek Sewer Facilities.
19. No Conveyance or Encumbrance. Neither AEE nor Blue Creek shall sell, convey,
transfer, hypothecate, lease, loan, or encumber the AEE/Blue Creek Sewer Facilities, without the
express written consent of the other party.
20. Indemnification. The parties agree to indemnify, defend, and hold the other
harmless from any and all claims, liabilities, injuries, deaths, suits, causes of action or losses of
any nature whatsoever incurred by either party resulting from any activity undertaken by such
party on the property of the other pursuant to this Agreement. The parties hereto intend not to
duplicate any legal services or other costs associated with the defense of any claims against
either party described in this section. Therefore, the parties hereto agree to cooperate in full to
prevent duplicative expenses incurred as a result of the indemnification herein described.
21. Notice. All notices required under this Agreement shall be in writing and shall be
hand -delivered or sent by facsimile transmission or registered or certified mail, return receipt
requested, postage prepaid, to the addresses of the parties herein set forth. All notices by hand
delivery shall be effective upon receipt. All facsimile transmissions shall be effective upon
transmission receipt. All notices by mail shall be considered effective seventy-two (72) hours
after deposit in the United States mail with the proper address as set forth below. Either party by
notice so given may change the address to which future notices shall be sent.
Notice to Blue Creek:
With Copy To:
Notice to AEE:
With Copy To:
8
Blue Creek Land Holdings, LLC
c/o Rob Cumming
3220 County Road 100
Carbondale, CO 81623
Holland & Hart, LLP
c/o Shane J. Harvey, Esq.
600 E. Main Street
Aspen, CO 81611
Phone: (970) 925-3476
Fax: (970) 925-9367
Aspen Equestrian Estates, LLC
c/o Jay Weinberg
PO Box 4788
Aspen, CO 81612
Klein-Zimet P.C.
c/o Herb Klein, Esq.
201 N. Mill
Aspen, CO 81611
Phone: (970) 925-8700
Fax: (970) 925-3977
22. Miscellaneous Provisions.
a. This Agreement shall be construed under, and in accordance with, the laws of
the State of Colorado.
b. This Agreement shall be binding upon and inure to the benefit of Blue Creek
and AEE and their respective legal representatives, successors and assigns.
c. In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never been contained
herein.
d. This Agreement constitutes the sole and only agreement of Blue Creek and
AEE with respect to the sewer service and supersedes any prior understandings or written or oral
agreements between Blue Creek and AEE with respect to sewer service. This Agreement may
not be amended or modified except by written agreement signed by Blue Creek and AEE.
e. Blue Creek and AEE pledge to utilize their best good faith efforts to act in a
timely and reasonable manner to fulfill their obligations hereunder.
f. Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to include the plural,
and vice versa, unless the context requires otherwise.
g. The section headings utilized herein are for reference purposes only and are
not intended in any way to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any part hereof.
h. The failure by either Blue Creek or AEE to enforce against the other party any
term or provision of this Agreement shall be deemed not to be a waiver of the right of either Blue
Creek or AEE to enforce against the other party the same or any other such term or provision.
i. This Agreement may be executed in multiple originals or counterparts, each of
which shall be an original and, when Blue Creek and AEE have each signed and provided to the
other party at least one (1) copy, such copies together shall constitute a fully executed and
binding agreement. Signatures transmitted by facsimile shall be binding as original signatures.
j. If either Blue Creek or AEE files any action or brings any proceeding against
the other arising out of this Agreement, then as between Blue Creek and AEE, the substantially
prevailing party shall be entitled to recover, as an element of its costs of suit and not as damages,
reasonable attorneys' fees to be fixed by the court. A party not entitled to recover its costs shall
not recover attornevc' fees. No sum for attorneys' fees shall he counted in calculating the amount
of a judgment for purposes of determining whether a party is entitled to attorneys' fees.
9
k. Nothing herein contained shall be deemed or construed by the parties hereto
or by any third person to create the relationship of principal or agent or of partnership or joint
venture or of any association between AEE and Blue Creek, except as parties to this Agreement.
IN WITNESS WHEREOF, Blue Creek and AEE have executed this Agreement as of the
date first above written.
BLUE CREEK:
BLUE CREEK LAND HOLDINGS, LLC, a Colorado limited liability company
By: LANE INDUSTRIES, INC., a Delaware corporation, its sole manager
By:
Name:
Title:
By:
Name:
Title:
AEE:
ASPEN EQUESTRIAN ESTATES, a Colorado limited liability company
10
REPLY TO
ATTENTION OF
DEPARTMENT OFTHE ARMY
U.S. ARMY ENGINEER DISTRICT, SACRAMENTO
CORPS OF ENGINEERS
1325 J STREET
SACRAMENTO, CALIFORNIA 95814-2922
November 14, 2000
Regulatory Branch (200075403)
Mr. Andrew Antipas
Ecological & Environmental Consulting, LLC
0285 Crystal Circle
Carbondale, Colorado 81623
RECEIVED NOV 1 5 2000
Dear Mr. Antipas:
We are responding to your written request dated October 30,
2000, on behalf of Blue Creek Ranch, for verification of a
jurisdictional determination on their property. The ranch
property is 81.7 acres and is located immediately north of the
Roaring Fork River upstream of the County Road 100 bridge just
south of Catherines Store. The legal description is within
Section 31, Township 7 South, Range 87 West, Garfield County,
Colorado.
Based on a site inspection by Susan Bachini Nall of this
office on October 2, 2000, we have determined that your wetland
boundary delineation is accurate. The plan referenced below is
an accurate depiction of the limits of Federal jurisdiction under
Section 404 of the Clean Water Act. The plan is labeled:
Existing Conditions/Topography Map of:
BLUE CREEK RANCH
Sheet 1 of 4
Dated 9/21/00
This verification is valid for a period of five years from
the date of this letter and is based on information supplied by
you. If that information proves to be false or incorrect, we
will adjust our determination accordingly. We have assigned
number 200075403 to this determination. Please contact Ms. Nall
and refer to this number if you have any questions regarding this
matter and for permit requirements at (970) 243-1199, extension
16 or the address below.
Sincerely,
Grady L. McNure
Chief, Northwestern Colorado
Regulatory Office
402 Rood Avenue, Room 142
Grand Junction, Colorado 81501-2563
Kevin L. Patrick
Brian 6. Stowell
scou C. Miller
Ramsey L Kropl"
Sara NI. Dunn
'licensed m A-. CO, 1A1
Main
730 E. Durant Are.
Suite 200
Aspen, CO 81611
970.920.1028 Tel
970.925.6847 Fax
Arizona O/]ice:
310 5. Mill Ave.
Suite 201
Tempe. AZ 85281
480.921.4044 Tel
480.921.8688 Fax
PATRICK & STOWELL
Attorneys at Law
June 25, 2001
Mr. Mark Bean
Garfield County Planning Department
109 8th Street, Suite 303
Glenwood Springs, CO 81601
,RECEIVED JUN 2 7 2001
RE: Blue Creek Ranch PUD and Sketch Plan Application; (our file 591a)
Dear Mr. Bean,
We represent Blue Creek Land Holdings. LLC ("Blue Creek"), with respect to
water and sewer matters associated with the proposed Blue Creek Ranch PUD. This
letter is in response to Garfield County Planning's letter dated December 6, 2000 to Mr.
Glen Horn, requesting additional information and supporting documentation for the
proposed water supply and sewer service for the development. Blue Creek's engineer is
addressing the physical aspects of the water supply and sewer service by separate letter
and documentation. This letter will address the legal aspects of such proposed water
and sewer service herein.
A. Water Supply:
1. Domestic, Treated Water Supply:
Blue Creek will provide a domestic, treated potable water supply to the
residential lots and other structures requiring treated water through connection with the
water system of its neighboring development, Aspen Equestrian Estates ("AEE"). An
agreement ("Water Service Agreement") has been negotiated over the past three months
and is very close to finalization and signing. A copy of the draft Water Ser'ice
Agreement is attached to this letter as Exhibit "A." The Water Service Agreement
provides for Blue Creek to construct the physical water delivery system servicing Blue
Creek and connect to the existing water system located on the AEE property. There is
an existing above ground storage tank and treatment plant located on the platted
"Equestrian Parcel" of the AEE development. The AEE Homeowners' Association
("AEEHOA") is the owner of the physical water system and the holder of the easements
for the system. The AEE developer, Aspen Equestrian Estates, LLC ("AEELLC"), is
the owner of the Equestrian Parcel and is providing the consent and right to utilize the
storage tank and treatment plant easement site on its property to service Blue
CreekRanch. Both AEELLC and AEEHOA are parties to the Water Service
Agreement.
PATRICK & STOWELL, P.C.
Mr. Mark Bean
June 25, 2001
Page 2 of 8
The Water Service Agreement provides for a master Water Association to be formed by the
two developments with equal homeowners' representation on the board of the Association. The
Water Association will own, operate and manage the joint water system for the benefit of both
properties.
The joint treated Water System will be supplied from underground wells currently drilled and
located on the AEE property, and if necessary for capacity, on the Blue Creek property. Currently,
there are three wells permitted by the State Engineer to serve AEE - the Appaloosa Well, the
Arabian Well and the Pinto Well ("AEE Wells"). Copies of these well permits are attached to this
letter as Exhibit "B." The AEE Wells are covered and augmented against curtailment by an Area
A "water allotment contract" with the Basalt Water Conservancy District ("BWCD"). A copy of
this Contract is attached as Exhibit "C." Blue Creek will amend and/or obtain "second" well
permits for the AEE Wells to allow their use within the water system and for service on the Blue
Creek property. Blue Creek has already obtained the necessary BWCD Contract to cover and
augment the water use demand on Blue Creek Ranch. A copy of this BWCD Contract is attached
hereto as Exhibit "D." Well permit applications for the increased use from the AEE Wells will be
submitted as soon as the Water Service Agreement is signed. We anticipate no difficulty with well
permits issuing based on Blue Creek's BWCD Contract.
The Water Service Agreement provides for the drilling of one to two additional wells on the
Blue Creek property, if necessary to meet demand ("Blue Creek Wells"). Blue Creek will be
responsible for the construction and connection of the Blue Creek Wells and obtaining the
necessary well permits. At this time, no well permit applications have been filed for the Blue
Creek Wells since it has been determined by the engineers that the AEE Wells will be sufficient to
provide treated water service to both developments. Thus, the Blue Creek Wells will be back-up
and may not be drilled.
The Water Service Agreement provides for charging all treated water users within both
developments fees to cover the cost of operation, management, repair, replacement, and
improvement of the joint Water System, as well as, to provide for a reserve fund. Adequate
provisions will be placed in the Protective Covenants for Blue Creek Ranch obligating the
homeowners/water users to these charges.
In the event the Water Service Agreement is not consummated, Blue Creek will construct an
on-site independent water system similar as constructed on the AEE property. State Engineer well
permits for the Blue Creek Wells will be obtained and covered by the Blue Creek BWCD Contract.
A water treatment plant and water storage tank would be constructed on-site and conveyed to the
Blue Creek Homeowners' Association along with all easement rights, similar as approved at the
AEE development.
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PATRICK & STOWELL, P.C.
Mr. Mark Bean
June 25, 2001
Page 3 of 8
2. Raw Water Irrigation:
The Blue Creek Ranch property is served by the following ditch irrigation water rights: Basin
Ditch; Middle Ditch; and Lower Ditch. The Basin Ditch diverts out of the North bank of the
Roaring Fork River, west of El Jebel in Section 33 of Township 7 South, Range 87 West of the 6th
P.M.. The Basin Ditch has several appropriations or priorities, as follows: 5.0 c.f.s. decreed to the
original construction (Priority 49); 5.0 c.f.s. decreed to the first enlargement (Priority 108); and, 1.8
c.f.s. decreed to the second enlargement (Priority 137), all such priorities adjudicated on May 11,
1889 in Civil Action 132; and 33.2 c.f.s decreed to the third enlargement (Priority 294) as
adjudicated on August 25, 1936 in Civil Action 3082.
Blue Creek acquired and has title ownership to 0.176 c.f.s. in each of the first three priorities of
the Basin Ditch (totaling 0.528 c.f.s.) and 5.865 c.f.s. in Priority 294. A copy of the deed
conveying the water rights to Blue Creek is attached as Exhibit "E."
State Engineer Diversion records for the Basin Ditch show a consistent pattern of diversions
starting in late April/early May until the end of October. The capacity of the Basin Ditch is
approximately 45 c.f.s. On average, the Basin Ditch diverts in the range of 35 to 42 c.f.s. from
mid-May to mid-July. Then in most years, it drops off to diversions around 15 to 7 c.f.s. through
mid-September and into the fall. However, the stretch of the Roaring Fork River where the
diversion point is located has not historically been limited by physical flow, so it appears lack of
late season diversions are not a result of lack of divertable water supply.
The Basin Ditch Priority Nos. 49, 108, and 137 are not subject to the "Cameo call," a Colorado
mainstem call that occurs most every irrigation season, generally from late June through October
and occasionally in April. The later Basin Ditch Priority 294 is subject to the "call," yet has
historically enjoyed protection from this call, and thus is permitted to divert, by virtue of inclusion
in the historic user's pool for which Green Mountain Reservoir releases are made.
The Basin Ditch water right has historically served the approximately twenty acres of pasture
land located on the north portion of the Blue Creek property where the proposed P.U.D. tree
farm/nursery open space will be located. A portion of this area has also been historically served by
the Middle Ditch further discussed below. Blue Creek's 6.4 c.f.s. ownership in the Basin Ditch is
adequate legal and physical water to service the raw water irrigation demands of the proposed
P.U.D. No change of water right case will be required to be filed in Water Court since the Basin
Ditch is decreed for irrigation and the law, as well as the State Engineer's Office, recognizes no
change of water right when only the crop or plant species grown is changed.
The Middle Ditch and Lower Ditch also serve Blue Creek Ranch. The Middle Ditch diverts by
decree from Blue Creek. The Ditch was originally decreed for 5.0 c.f.s. in Civil Action 132,
adjudicated on 5/11/1889 with an appropriation date of 4/17/1884. 1.76 c.f.s. of that amount has
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PATRICK & STOWELL, P.C.
Mr. Mark Bean
June 25, 2001
Page 4 of 8
been decreed to an alternate point of diversion at the Middle Ditch Well in Case No. W-197.
The Lower Ditch was originally decreed for 1.5 c.f.s. on 5/11/1889 with an appropriation date
of 4/15/1882 in Civil Action 132 for diversion out of the Roaring Fork River. A further
appropriation was decreed to the Lower Ditch in the amount of 11.9 c.f.s. on 11/5/1971 with an
appropriation date of 4/15/1882 in Civil Action 5884.
Blue Creek acquired and has title ownership to 0.96 c.f.s. in Priority 83 of the Middle Ditch.
See Exhibit "E." Blue Creek acquired and has title ownership to 0.365 c.f.s. of Lower Ditch,
Priority No. 23, and 3.996 c.f.s. in Lower Ditch, Priority No. 721. See Exhibit "E."
There has never been a call on these water rights. Blue Creek's ownership amounts in the
Middle and Lower Ditch are more than legally and physically sufficient for the continued irrigation
of open space in and around the residential development. No change case will be required for the
continued use of these water rights for irrigation.
We can provide copies of diversion records and water court decrees for the above ditches, at
your request.
B. Wastewater Service:
Blue Creek is pursuing two options for sewer service: (1) construction of an on-site wastewater
treatment plant; and (2) connection to the Ranch at Roaring Fork ("Ranch") wastewater treatment
plant.
1. On site system:
Blue Creek has prepared and submitted a Site Application for a new Domestic Wastewater
Treatment Plant pursuant to Colorado Department of Public Health and Environment Regulations.
At this time the Site Application is being reviewed by the various referral agencies. A copy of the
Site Application was submitted to your office on June 6, 2001.
It is our opinion a Site Application will reasonably be approved by the Colorado Water Quality
Control Division. The following represents the criteria used for decision making on a Site
Application by the Division. Under each criteria heading, we provide evidence and information as
to how such criteria is or will be met.
1. Designation of the legally responsible person and the legal description of the location.
The site location will be dedicated on the plat of the Blue Creek PUD and will represent an
easement for the benefit of the lot owners to be held by the Homeowners' Association. The
"legally responsible person" will be the homeowners' association and this will be provided for in
the Subdivisions Improvements Agreement and the Protective Covenants for the subdivision. The
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PATRICK & STOWELL, P.C.
Mr. Mark Bean
June 25, 2001
Page 5 of 8
wastewater facility will be operated by a Colorado licensed operator, as identified in the Site
Application.
2. The existing domestic wastewater treatment facilities and feasibility (including the cost
effectiveness, water quality management and local comprehensive plans, and legal, political
limitation) of treating wastes in an areawide facility.
In 1998/1999, Mid Valley Metropolitan District ("MVMD") attempted to amend its Service
Plan to establish an "areawide facility" at the location of the Ranch. The service plan amendment
was not approved by Garfield County Board of Commissioners. In discussions with MVMD
representatives, there has been no expression of interest in attempting such an amendment to its
Service Plan in the future. Carbondale Sanitation District has not indicated it is interested in
extending wastewater service to the area of Blue Creek Ranch, nor is Blue Creek Ranch in
Carbondale's latest Clean Water Act §201 Facilities Plan. The only existing wastewater treatment
facility in the vicinity is located at the Ranch at Roaring Fork. The Ranch is not a public
wastewater provider. The Ranch's treatment plant Site Application does not include Blue Creek
Ranch.
Blue Creek is in the process of discussions with the Ranch concerning connection to the Ranch
treatment plant. At this time, the Ranch has not offered wastewater treatment service to Blue
Creek. In any event, as further discussed below, Blue Creek will continue to pursue discussions
with the Ranch. Under the WQCD's policies on "feasibility" of consolidation, the economic
analysis shows that it is not feasible to consolidate with the Ranch. As detailed in the Blue Creek
Site Application, the cost of consolidating with the Ranch is at least 240% more than the on-site
alternative. Under WQCD policy, if the cost of consolidation exceeds the cost of separate plant
construction by more than 30%, no further analysis of consolidation is required.
3. Relationship to and potential effect of proposed facility on any water supply intake.
The nearest domestic water supply intake in the Glenwood Springs Pump Station,
approximately 17 miles downstream. The WQCD has issued its "preliminary effluent limits"
("PEL") report for the proposed Blue Creek wastewater treatment plant. See Report from WQCD
attached to this letter as Exhibit "F." The WQCD does not indicate concerns with maintaining
water quality on the Roaring Fork River due to construction of the Blue Creek plant, and the
WQCD indicated the State's antidegredation policy would be met.
4. Location of proposed project to any flood plain or other natural hazard.
The facility is not located within a 100 year flood plain or other natural hazard area. See Site
Application.
5. Impact on public health, welfare, and safety.
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PATRICK & STOWELL, P.C.
Mr. Mark Bean
June 25, 2001
Page 6 of 8
As evidenced by the WQCD PEL report, the proposed treatment facility poses no adverse
impact on health, safety and welfare.
6. Proper notice.
Under Section 22.4(6) of the Site Application Regulations, notice of the proposed facility is
required 15 days prior to submitting the Site Application to the Division. This notice has been and
continues to be posted on-site in compliance with this regulation.
7. Review and comment of all required local government agencies and all planning agencies
including recommendations for approval or disapproval with any conditions which should be a part
of the Division approval.
The Site Application has been sent to all of the referral agencies as required by the Site
Application regulations. At your request, we can forward the other government comments and
sign -offs as soon as they are received.
8. Long-range comprehensive planning for the area as it affects water quality.
The stated goals of the Garfield County Comprehensive Plan relating to sewer services is to
ensure the provision of legal, adequate, dependable, cost effective and environmentally sound
sewer services for new development. The proposed treatment plant utilizes state of the art
environmentally sensitive technology and discharges a relatively small flow to the Roaring Fork
River. As stated in the WQCD PEL Report, "...due to the small design flow of the proposed
facility versus the high flow rate of the receiving stream, analyses indicate that assimilative
capacities are extremely large." Thus, despite the small increase in density over the comprehensive
plan zoning, the evidence shows there will be no adverse affect on water quality with the proposed
treatment plant and discharge.
9. The water quality management plan for the area. The Division shall rely substantially upon
such plan in deciding whether to grant site approval where the plan is current and
comprehensive with respect to its analysis of population growth and distribution as it related to
wastewater treatment. In those areas where water quality management planning has not been
conducted, or where such planning is not current or comprehensive, the Division shall rely
upon the factors (a) through (i) of this section and upon the information submitted in the
application for site approval as the primary determinants in making the site application
decision. Where portions of a water quality management plan are adopted as regulation,
pursuant to $ 25-8-105(3)(a), they shall be binding on the site approval.
Under Section 208 of the Clean Water Act, there is an approved Area -wide Water Quality
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PATRICK & STOWELL, P.C.
Mr. Mark Bean
June 25, 2001
Page 7 of 8
Management Plan ("Regional Plan") for Northwest Council of Governments ("NWCOG").
Garfield County is not within NWCOG's planning region jurisdiction (Region XII). However, the
relevant stretch of the Roaring Fork River watershed is discussed in the Regional Plan. The
Regional Plan does not include any point source recommendations that would prohibit or
recommend against the proposed Blue Creek treatment plant. The Regional Plan has
recommended that a Consolidated Sanitation Management District for this mid -valley area be
established in the future. Blue Creek would not object to operating under or participating in a
consolidated management district.
10. The policies set forth in 22.3
It is our opinion the Site Application regulation policies are met as evidenced by the
information described above, the information contained in the Blue Creek Site Application and
supporting documents, and the WQCD PEL Report.
2. Connection to the Ranch at Roaring Fork:
Blue Creek is also pursuing options for wastewater treatment service through the Ranch.
Since October of 2000, Blue Creek has been in discussions with the Ranch for sewer service. Blue
Creek has formally requested sewer service from the Ranch, but at this time, the Ranch has not
offered this service. The Ranch treatment plant was recently expanded to a 0.1 million gallons per
day capacity to serve the Ranch, St. Finnbar and AEE. At this point, the Ranch engineers have not
determined that there is sufficient capacity in the Plant to serve Blue Creek. Service from the
Ranch will also require a 3/4 affirmative vote of all the Ranch homeowners, which has proven in
the past to be difficult to obtain.
In preparation for the potential of service through the Ranch, Blue Creek has negotiated a
Sewer Connection Agreement with AEE to allow connection to AEE's main sewer trunk line and
the conveyance of wastewater through this line to the Ranch property boundary. A copy of the
draft Sewer Connection Agreement is attached as Exhibit "G." This Agreement is close to
finalization and will allow Blue Creek the option to convey wastewater through AEE if the Ranch
offers reasonable sewer service.
In conclusion, the evidence shows that Blue Creek is reasonably likely to gain site approval
from the WQCD for an on-site treatment facility. However, Blue Creek is still willing to consider
connection to the Ranch if such service is offered. Blue Creek anticipates that it will be in a
position to make a final determination as to its wastewater alternative by preliminary plan stage or
other appropriate point in the land use review process.
If you have any questions, need further information, or would like to discuss any of the above,
please give me a call.
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PATRICK & STOWELL, P.C.
Mr. Mark Bean
June 25, 2001
Page 8 of 8
Very truly yours,
PATRICK & STOWELL, P.C.
A Professional Corporation
B
SCM/slp
Enclosures
Scott C. Miller
miller@waterlaw.com
cc w/encl: Blue Creek Land Holdings. LLC
Mr. Rob Cumming
Mr. Ace Lane
Mr. Tom Zancanella, P.E.
Mr. Glenn Hom
Mr. Yancy Nichols, P.E.
Mr. Mark Beckler, P.E.
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